Judgment-

KANIA

( 1 ) THIS is an appeal against the judgment of a division bench of the Gujarat High court dismissing a writ petition filed by the appellant herein. The appeal has been filed on a certificate of fitness granted by the Gujarat High court under Article 133 (l) (c) of the Constitution.

( 2 ) THE main challenge in the writ petition was to the vires of Sactions 4 and 6 respectively of the Land Acquisition Act, 1894. That challenge no longer survives in view of the validity of the S. having been upheld by this court in Manubhui Jehtalal Patel v. State of Gujarat. The lands in question are situated at village Bhairav, Taluka Kamrege, District Surat. Gujarat. The said lands are situated on the bank of the river Tapti which is known for its frequent floods and the lands are covered in Survey No. 2. The said lands admeasure 1 acre and 39 gunthas. We propose to refer to the said lands in the aggregate as "the said land". The said land is also known as the "maksheshwar Mahadev" land. The appellant claims to be the occupant and owner of the entire land comprising in Survey No. 2 which includes the said land. It may be mentioned that the claim of the appellant to be the owner and occupier of the said land is based on his being the senior member of his family but we are not concerned with that question as we propose to proceed on the footing that he is in actual occupation of the said land. The preliminary notification declaring the intention to acquire the said land was issued under S. 4 of the Land Acquisition Act, 1894 and published in the government gazette of the State of Gujarat on 30/04/1970. Tt was notified that the proposed acquisition was for a public purpose, namely, for extension of the village site of the village Bhairav. It is common ground that the extension of the village site was required for the purpose of housing 12 families who had been rendered homeless because of floods in Tapti river. An individual notice under S. 4 of the Land Acquisition Act was served on the appellant on 2/05/1970. The appellant filed his objections against the proposed acquisition on 12/05/1970 and filed additional objections on 20/06/1970 and 6/07/1970 respectively. After consideration and rejection of the said objections, the notification for acquisition of the lands under S. 6 of the Land Acquisition Act was issued on December 8. 1970. Notices under S. 9 of the Land Acquisition Act were issued on 8/01/1971. The said acquisition was challenged by the appellant in the writ petition on various grounds.

( 3 ) THE main "round on which the said acquisition was challenged in the writ petition was that the provisions of S. 4 and 6respectively of the Land Acquisition Act were ultra vires the Constitution of India. That challenge, as we have already pointed out, has been finally negatived by this court. In view of this, Mr Mehta fairly conceded that the vires of S. 4 and 6 of the Land Acquisition Act could no longer be called in question before us. It was, however, pointed out by him that the said notification was also challenged on some other grounds.

( 4 ) IT was contended by Mr Mehta that under the provisions of the Bombay Land Revenue Code. 1879. it must be established that the lands in the existing village site are insufficient for the extension of the village site before any acquisition can be resorted to. It was submitted by Mr Mehta that before the said land could be acquired for the aforestated public purpose, the revenue authorities should have satisfied themselves that there were no unoccupied lands in the village which were suitable, appropriate and available for the extension of the village site or abadi and since that has not been done. the acquisition could not said to be for a public purpose. Mr Mehta sought support for these submissions from the decision of a division bench of the Nagpur bench of the Bombay High court in Chandrabhagabai Udhaorao v. Commissioner, Nagpur Division". It was held in that case that the provisions