Laxmanrao Bapurao Jadhav and anr. Vs. the State of Maharashtra and ors. - Court Judgment

Excerpt:
land acquisition act, 1894 section 3a (as inserted by mah. act 38 of 1964) r/w sections 6, 7, 9 & 10 - acquisition--preliminary survey to ascertain adaptability of land for public purpose--failure of authorised officer to carry out - does not take away the power of the government to take decision under section 6--notice issued under sections 9 and 10--validity of.;section 3a (as inserted by mah. act, 38 of 1964) of the land acquisition act envisages the powers of the officer to carry out the survey for the purpose of enabling the state government or the commissioner to determine whether any land in any locality is needed or likely to be needed for any public purpose. this power is synonymous to the power under section 4(2) of the act. ultimately, it is the state government that is required to decide whether the land is needed or likely to be needed for the public purpose. the mere fact that the authorised officer was empowered to inspect and find out whether the land would be adaptable for the public purpose does not take away the power of the government to take a decision ultimately.;laxmanrao bapurao jadhav and anr. v. the state of maharashtra w.p. no. 1417 of 1984 decided on 25.2.1987 overruled. - section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - the contention raised and accepted by the high court was that since section 3-a of 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 view of the high court, therefore, is clearly incorrect.order1. 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 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 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 accepted by the high court was that since section 3-a of 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, therefore, 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.2. 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 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 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 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;(ii) to marks 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.3. 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.4. section 3-b gives power for awarding damages fordoing 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.5. 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 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.6. 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.

Judgment:
ORDER

1. 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 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 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 accepted by the High Court was that since Section 3-A of 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, therefore, 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.

2. 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 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 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 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;

(ii) to marks 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.

3. 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.

4. Section 3-B gives power for awarding damages fordoing 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.

5. 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 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.

6. 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.