LAXMANRAO BAPURAO JADHAV AND ANR.versusTHE STATE OF MAHARASHTRA AND ORS .

                LAXMANRAO BAPURAO JADHAV AND ANR.                                   A
                                          v.
•                THE STATE OF MAHARASHTRA AND ORS .

                                 OCTOBER 1, 1996

                 [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]                             B

            Land Acquisition Act, 1894.

          s.3-A as inserted by Bombay (Amendment) Act of 1945, ss. 4(1) and
    6(1)-Acquisition of land for constmction of houses for weaker sections of       C
    society-Declaration u/s.6(1) publishe~Writ petition challenging the acquisi-
    tion allowed by High Court on the ground that compliance with s.3-A was
    not made-Held, the view of the High Court is incorrect-It is the State
    Government that is required to decide whether the land is needed or is likely
    to be needed for public purpose----s. 6 gives a conclusiveness to the public    D
    purpose found by the Government on publication of declaration in the
    Gazette.

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4165 of
    1988.
                                                                                    E
         From the Judgment and Order dated 25.2.87 of the Bombay High
    Court in W.P. No. 1417 of 1984.

            Gopal Balwant Sathe for the Appellants.

            S.M. Jadhav for the Respondent No. 1 and 2.                             F

            D.M. Nargolkar for the Respondent No. 3.

            The following Order of the Court was delivered :

           Notification under Section 4(1) of the Land Acquisition Act, 1894 G
    (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 sections of the society. Notification
    under Section 5-A was issued. The enquiry was conducted and on
    satisfaction that it was needed for public purpose, declaration under H
                                        161
    162                   SUPREME COURT REPORTS [1996) SUPP. 7S.C.R.
A Section 6 was published on January 17, 1983. After the Land Acquisition
   Officer issued notice under Sections 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 .0.ccepted by
   the High Court was that since Section 3-A of the Bombay (Amendment)
B Act, 1945 (22 of 1945) empowers~the officer authorised by the Commis-
   sioner to satisfy himself whether' the land is needed for a public purpose
   and siRce the authorised officer had not satisfied in that behalf, the
   Government's power, after the enquiry under Section 5-A, was denuded.
   The Government, therefore, was not right in its conclusion that the land
 1
   was needed for a public purpose. We find that the view taken by the
C 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
D   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
    powers 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
E            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
             Department, or any other officer either generally or specially
             authorised by the State Government in this behalf, or as the case
F            may be, any officer authorised by the Commissioner and for his
             servants and workmen, -

                 (i) to enter upon and survey and take levels of any land in such
             locality;
G
                (ii) to marks such levels;

                 (iii) to do all other acts necessary to ascertain whether the land
             is adapted for such purpose; and

H                (iv) where otherwise the survey cannot be completed and the
                         LB.JADHAVv. STATE                               163
        levels taken, to cut down and clear away any part of any standing A
        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
                                                                                B
        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 C
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 D
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.         E

      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 p
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 G
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 i~ required to H
    164                 SUPREME COURT REPORTS (1996) SUPP. 7 S.C.R.
A decide whether the land is needed or is likely to be needed for the public
    purpose. The view of the High Court, therefore, is clearly incorrect.

           The appeals are accordingly allowed. The order of the ll:gh Court
    in Writ Petition No. 1417/84 dated February 25, 1987 stands set aside. No
    costs.
B
    R.P.                                                    Appeals allowed.