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PETITIONER: LAXMANRAO BAPURAO JADHAV & ANR.

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA & ORS.

DATE OF JUDGMENT:       01/10/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Notification under Section 4(1) of the Land Acquisition Act, 1894  (for short,  the ’Act’) was published on June 19, 1982 acquiring  lands in  Survey No.27/C.1/A/1 admeasuring 1 hectare, 19  acres and 8 tees for construction of houses for weaker section  5-A was issued. The enquiry was conduced and no satisfaction  that it  was  needed  for  public  purpose, declaration under  Section 6  was published  on January  17, 1983. After the Land Acquisition Officer issued notice under Section 9  and 10 of the Act, the respondent No.3 filed writ petition in  the High  Court questioning the validity of the notification and  the declaration. The contention raised and accepted by  the High  Court was  that since Section 3-A the Bombay (Amendment)  Act, 1945  (22  of  1945)  empowers  the officer authorised  by the  Commissioner to  satisfy himself whether the  land is  needed for  a public purpose and since the authorised officer had not satisfied in that behalf, the Government‘s power, after the enquiry under Section 5-A, was denuded. The  Government, therefor,  was not  right  in  its conclusion that the land was needed for a public purpose. We find that the view taken by the High Court is not correct in law.      On publication  of the  notification under Section 4(1) of  the   Act,  sub-section  (2)  envisages  that  the  Land Acquisition Officer  or an  officer authorised  specially in this behalf  by the  Government or  any servant  or  workman shall have  lawful authority  to enter  upon and  survey and conduct levels of any land in such locality etc. Section 3-A envisages the  power of  the officers to carry out survey as under:      "3-A. Preliminary  survey of  lands      and powers of officers to carry out      survey. For the purpose of enabling      the   State   Government   or   the      Commissioner to  determine  whether      the land  in any locality is needed      or is  likely to  be needed for any      public purpose,  it shall be lawful      for  any   officers  of  the  State      Government  in   the  Public  Works

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    Department, or  any  other  officer      either   generally   or   specially      authorised by  the State Government      in this  behalf, of as the case may      be, any  officer authorised  by the      Commissioner and  for his  servants      and workmen,      (i) to  under upon  and survey  and      take levels  of any  land  in  such      locality;      (ii) to make such levels;      (iii)  to   do   all   other   acts      necessary to  ascertain whether the      land is  adapted for  such purpose;      and      (iv)  where  otherwise  the  survey      cannot be  completed and the levels      taken, to  cut down  and clear away      any  part  of  any  standing  crop,      fence or jungle;      Provided that no person shall enter      into  any   building  or  upon  any      enclosed court  or garden  attached      to a  dwelling house  (unless  with      the   consent   of   the   occupier      thereof), without previously giving      such occupier  at least seven days‘      notice in  writing of his intention      to do so."      This is  synonymous to  the power under Section 4(2) of the Act. In addition to the officer authorised under Section 7 of the Act, any other officer named in Section 3-A is also empowered even before the notification under Section 4(1) is published to  inspect the  locality and find out whether the land is needed or is likely to be needed for any purpose and on such  authorisation it  shall be  lawful for  the officer appointed by  the  State  Government  in  the  Public  Works Department or  any  other  officer  generally  or  specially authorised in  this behalf,  as the  case  may  be,  or  any officer authorised  by the Government or a Public servant or a workman, to enter upon and survey the land, take levels of any land  in such  locality, mark levels and to do all other acts necessary  to ascertain whether the land is adapted for such purpose  and, where  otherwise  the  survey  cannot  be completed and  levels taken  to cut  down and clear away any part of any standing crop, fence or jungle etc.      Section 3-B  gives power for awarding damages for doing such acts.  This will  be  only  an  enabling  provision  to authorise the officer to do the acts envisaged under Section 3-A of  the State  Amendment Act  in addition  to the  power under sub-section  (2) of  Section 4.  Ultimately, it is for the State Government to decide whether the land is needed or is likely  to be  needed for a public purpose and whether it is suitable  or adaptable  for the  purpose  for  which  the acquisition was  sought to  be made.  The mere fact that the authorised officer  was empowered  to inspect  and find  out whether the  land would be adaptable for the public purpose, it is  needed or  is likely to be needed, does not take away the power of the Government to take a decision ultimately.      Section 6  of the  Act gives  a conclusiveness  to  the public purpose found by the Government on publication of the declaration in  the Gazette. In other words, it is the State Government that  is required to decide the land is needed or is likely  to be  needed for the public purpose. The view of the High Court, therefore, is clearly incorrect.

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    The appeals  are accordingly  allowed. The order of the High Court  in writ  Petition No.1417/84  dated February 25, 1987 stands set aside. No costs.