Brij Pal Bhargava & Ors vs State Of U.P.& Ors

"REPORTABLE"

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2020 OF 2011

(ARISING OUT OF SLP (C) NO. 17755 OF 2007)

Brij Pal Bhargava & Ors. .... Appellants

Versus

State of U.P. & Ors. .... Respondents

J U D G M E N T

V.S. SIRPURKAR, J.

1. Leave granted.

2. Land owners - appellants have challenged the judgment of

Allahabad High Court, challenging the dismissal of their petition, whereby

they had challenged the notifications issued under Sections 4 and 6 of the

Land Acquisition Act, 1894 (hereinafter called "the Act" for short). The

lands comprised in Plot Nos. 542, 543 and 544 of Village Jainsinghpura

Bangar, Mathura, U.P., measuring 6.6 acres were sought to be acquired

by notification dated 20.3.1991 issued under Section 4 of the Act.

Ultimately, after the enquiry under Section 5A of the Act, the notification

under Section 6 of the Act came to be issued on 28.2.1992. It is an

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admitted position that in pursuance thereof, the award has also been

passed.

3. Shri U.U. Lalit, the learned senior counsel appearing on behalf of the

appellants urged before us that the High Court has not considered the

major defects in the whole proceedings under the Act and more

particularly, under Section 5A of the Act. The learned senior counsel

vehemently argued that in pursuance of the notice inviting objections under

Section 5A of the Act issued by Collector, Mathura, published in the

newspaper "Amar Ujala" dated 21.3.1991, the appellants filed their

objections under Section 5A of the Act on 18.4.1991 ventilating their

grievances. The appellants had also sought for an opportunity of personal

hearing and accordingly, Shri Brij Pal Bhargava had appeared before the

Land Acquisition Officer on 3.5.1991; however, on that date, he was

informed by the Land Acquisition Officer that no reply was filed by the Land

Acquisition Department to the objections filed by the appellants. It was

also informed that the officers were busy in election duty and, therefore, no

hearing was possible on that date and the next date of hearing would be

communicated to the appellants in due course. The learned senior

counsel pointed out that thereafter, no date was ever informed to the

appellants and ultimately, no hearing was given and instead the

Government came out with the publication of the notification dated

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28.2.1992 under Section 6 of the Act. The learned senior counsel

asserted that in the absence of any hearing under Section 5A of the Act,

the whole proceedings under the Act were rendered illegal. The learned

senior counsel also relied on the affidavit of the lawyer of appellants in land

acquisition proceedings asserting that no hearing opportunity was given to

him.

4. This contention was very strongly refuted by Shri Dinesh Dwivedi

and Shri Vikas Singh, learned senior counsel appearing on behalf of the

State of U.P. and Mathura Vrindavan Development Authority (respondent

No. 3) respectively. The original report was produced before us. Both the

learned senior counsel urged that on that day i.e. 3.5.1991, a further date

was given and the parties were heard and it is only thereafter that an

investigation report was prepared under Section 5A (2) of the Act. We

have been taken through the said report wherein the objection on the part

of the said Brij Pal Bhargava was the non-publication of the public notices

under Section 4 of the Act. That contention was specifically refuted by

pointing out that there was proper publication of the notices under Section

4 of the Act. The other objection raised was that the whole acquisition was

done with mala fide intentions. It was suggested in the objection that

about 150 acres of land for housing development was already acquired

about 20 years back and yet no development had been made. It was also

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urged that the acquisition of the land for the planned housing development

is not covered under the public purpose. It is apparent from the report that

all these objections were dealt with holding that there was no question of

any mala fides in the acquisition. It has also been held that the acquisition

for the public purpose of planned housing development is very much a

public purpose. The said acquisition has been justified on account of

increase in the population and fast industrial development which required

the availability of the houses for the persons of middle income group and

lower income group, and of Scheduled Castes, Scheduled Tribes and

backward class. The other objection raised was that the land was not

suited for the public purpose since there was 16 year old village Abadi of

about one and a half acre and there were number of trees on two and half

acre land. That question has also been dealt with in details holding that

the Mathura Vrindavan Development Authority would develop Public Park,

School and Play Ground on the acquired land. Even the objections raised

by one Devendra Nath Bhargava have been considered in details by the

Land Acquisition Officer. We are quite convinced that all this could not

have been possible unless the appellants were heard and their objections

were considered in details. Shri U.U. Lalit, learned senior counsel

appearing for the appellants urged that this Court had invited the original

report and the original report did not show the factum of hearing. We have

seen the original report and the order sheet. Indeed, there are dates given

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after the first date, on which date some of the objectors were also present.

There are some missing pages. However, it is specifically mentioned in

the report that the objectors have been heard. In our opinion, once the

original report suggests that the objectors were heard, there is no point in

urging that the appellants were not heard.

5. Shri Vikas Singh, learned senior counsel appearing on behalf of

Mathura Vrindavan Development Authority (respondent No. 3) relied on

the decision in Jayabheri Properties Private Limited & Ors. Vs. State of

Andhra Pradesh & Ors. [2010 (5) SCC 590]. The observations made in

para 42, where this Court had specifically held that the contention raised

on behalf of the appellants about hearing not afforded to the objectors was

refuted on the ground that the objections filed were duly considered by the

Special Dy. Collector and rejected by his order dated 21.7.2006. Since we

have seen the original report in this case, we are of the opinion that not

only was the hearing afforded, but all the objections have been specifically

considered. The counter affidavit shows a document where the objectors

have been invited for the hearing on a fixed date i.e. 17.9.1991. We are of

the clear opinion that not only the objectors were heard, but their

objections were also decided. This contention raised on behalf of the

appellants is rejected.

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6. As regards the affidavit of the lawyer appearing on behalf of the

appellants in land acquisition proceedings, we have gone through the

affidavit. It is, however, completely, bereft of the dates and other details.

We, therefore, do not find it fit to rely upon the same.

7. The second contention raised by Shri Lalit, learned senior counsel is

that though the acquisition proceedings are over and the award is also

passed, the possession has not been taken at all. The learned senior

counsel pointed out, relying on the decision in Balwant Narayan Bhagde

Vs. M.D. Bhagwan & Ors. etc. etc. [1976 (1) SCC 700] that as per the

majority view expressed by Bhagwati & Gupta, JJ., it is the physical

possession which should be taken in pursuance of the land acquisition and

not only symbolical possession or paper possession. The learned senior

counsel also relied on the report to suggest that inspite of the acquisition,

still the Revenue entries were in favour of the appellants showing their

possession and the cultivation by them in respect of the land. Shri Lalit

tried to show some photographs suggesting therein that the wicket gate

had the lock of the appellants and thus contended that the possession still

continues with the appellants. In fact, it is a question of fact as to whether

the possession has been taken or not. However, the respondents have

produced the possession receipt, where it is suggested that the

possession was taken by the officers after going on the spot. Shri Vikas

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Singh, learned senior counsel appearing on behalf of Mathura Vrindavan

Development Authority (respondent No. 3) pointed out that it would be

impossible for the Collector or Revenue officers to enter each bigha of land

for taking possession thereof and, therefore, the pragmatic approach has

to be adopted by the Court while considering as to whether possession

has been taken or not. The learned senior counsel also pointed out that

the documents show that actual possession was taken. He also tried to

point out the photograph suggesting that not only the possession has been

taken, but number of other activities of construction were going on at the

land including drawing the layout thereof and building the roads therefor. The learned senior counsel relied on the reported decision in Sita Ram

Bhandar Society, New Delhi Vs. Lieutenant Governor, Government of

NCT, Delhi & Ors. [2009 (10) SCC 501], as also in Dahyabhai

Ranchhoddas Dhobi & Anr. Vs. State of Gujarat & Ors. [2010 (7) SCC

705], where the view has been taken about the pragmatic approach to be

adopted by the Courts in deciding as to whether the possession was taken

or not. Seeing the report and the orders passed, we are thoroughly

convinced that not only the possession was taken, but there are activities

going on at the behest of the Mathura Vrindavan Development Authority.

This is apart from the fact that this is a pure question of fact which has

been answered by the High Court in no uncertain terms. In this view of the

matter, we are of the clear opinion that even on this count, the appellants

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must fail.

8. We are completely satisfied with the judgment of the High Court and

the findings therein. We confirm the same. No other question was raised.

In result, the appeal fails and is dismissed, but without any costs.

......................................J.

(V.S. Sirpurkar)

......................................J.

(Anil R. Dave)

New Delhi;

February 23, 2011.

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Digital Proforma

1. Case No. : Civil Appeal No.______of 2011

[Arising out of SLP (c) 17755 of

2007]

2. Cause title : Brij Pal Bhargava & Ors.

Vs.

State of U.P. & Ors.

3. Judgment heard by : Hon'ble Mr. Justice V.S. Sirpurkar

Hon'ble Mr. Justice Anil R. Dave

4. Judgment reserved by : Hon'ble Mr. Justice V.S. Sirpurkar

5. Date of C.A.V. : 17.2.2011

6. Date of pronouncement of

Judgment : 23.2.2011

7. Nature of judgment : Reportable