CORAMTHE HONOURABLE MR v. The Principal Secretary to the Government

But, however, the Sub Divisional Magistrate-cum-AssistantCollector, Coonoor had initiated proceedings under Section 133 ofthe Code of Criminal Procedure and had issued directions to thepetitioner to keep open the Estate road for all times for allpersons including vehicles without any obstruction or hindrance onthe said road. The order passed by the Sub Divisional Magistratecame to be a subject matter of attack in Criminal Revision CaseNos.1486 and 1504 of 2007. The criminal revision came to bedisposed of by a final order passed by this court on 28.4.2008 (thejudgment since reported in 2008 (2) MLJ (Crl.) 402 Mad (Manager,Kodanad Estate, Kothagiri Taluk, Nilgiris District rep byR.Ravichandran Vs. Sub Divisional Magistrate and the AssistantCollector, Coonoor, Nilgiris District)).7.In that case, this Court in paragraphs 12.2 to 12.7 hadrecorded the following findings:"12.2.In the present case, the action of the SDM intaking cognizance of a complaint which did notaddress any question of any imminent danger orobstruction of a pathway, ought not to have takennote of by him. In addition, the petition signedby the villagers, which was addressed to the GramaSabha and the Grama Sabha's resolution sent to theCollector wanted the State to find a permanentsolution. There is no imminent threat of anyobstruction had arisen. 12.3.A conjoint reading of all the Exhibitsincluding the oral and documentary evidence clearlyshows that the people of the two hamlets wanted onlya free access to their vehicles and also the roadbeing opened during night times without restrictionand, therefore, there was no obstruction of passageas such for the public to use the pathway. Theobstructions complained were in existence as statedby the deponents right from the year 1995 when thepresent management took over the Estate. It is asold as 12 years and hence, there was no occasion touse the emergency power under Section 133 Cr.P.C. bythe SDM. 12.4.In any event, the complaint that the toll isbeing collected is not an issue coming withinSection 133 Cr.P.C. and it is open to the privateowners to collect toll to allow the Estate Road tobe used each time when a vehicle was taken and itestablishes that practice was done on licencegranted by the owners of the property. If it is adispute over licence conditions, then, it onlyrelates to a civil right between the parties and theparties ought to have been relegated to the CivilCourt's jurisdiction. https://hcservices.ecourts.gov.in/hcservices/

12.5.In the present case, even by the admission ofthe parties, the road was a private patta land andthe public were allowed on a permissive usage of theroad over the period and it does not create anypublic right overnight. Even assuming that suchright is claimed in their favour, they should haveapproached the Civil Court to establish their rightto free passage and ought not to have invoked theproceedings under Section 133 Cr.P.C. Further,while the complainants themselves have demanded forproviding a public road, by resorting to landacquisition proceedings, in the evidence, theycannot turn back and say that they have a right touse the private road freely and resort toproceedings under Section 133 Cr.P.C. In the guiseof exercising an emergency power under Section 133Cr.P.C., the authorities cannot create new rights infavour of the so-called complainants. 12.6.In any event, after the preliminary order waspassed by the SDM and when an objection was raisedin the form of an interim response that the propertywas a private property, the SDM should have referredthe matter for a Civil Court's decision underSection 137(2) Cr.P.C. and must have stayed his ownproceedings. On the contrary, in the impugnedorder, there is no reference to the application ofmind with reference to the exercise of discretionunder Section 137(2) Cr.P.C. When a valuableright of a owner of a property is at stake, merelybecause there is a group demand or a mob desire, thepower under Section 133 Cr.P.C. cannot be used orrather misused.12.7.The evidence placed before the SDM does notdisclose that there is any imminent danger to publictranquillity or peace and the complaint made by thelocal people is only a petition to the State toacquire the property."8.But, even thereafter considering the plight of theresidents, in paragraph 14, this court gave the following advice tothe petitioner Estate, which reads as follows:14.A word of advice:-It is also needless to mention that thepetitioner Estate will not deny access to thevillagers of Anna Nagar and Kamaraj Nagar to use thepathway as it was done in the last 13 years with suchrestrictions and conditions as it may impose forutilising the Estate Road considering that it is theonly access to the outside world." https://hcservices.ecourts.gov.in/hcservices/

9.Notwithstanding the findings rendered therein, the SubDivisional Magistrate-cum-Assistant Collector filed a Special LeaveAppeal before the Supreme Court in Special Leave to Appeal(Criminal)No.3817 and 3818 of 2008. The Supreme Court whileordering special leave had passed the following interim order onthe SLP on 15.5.2008, which reads as follows:"Whatever directions given by the learned Single Judgewith regard to the use of the pathway running to theEstate be maintained until further orders."10.Subsequently, on 3.1.2011, the Supreme Court on findingthat the matters were ready for final disposal, had directed theinterim order to continue till the disposal of the main SLP.During the pendency of the SLPs, a third party appeal was alsofiled in Special Leave to Appeal (Criminal)No.4138 to 4141 of 2008by one Mani. Also a writ petition was filed under Article 32 inW.P.(Civil) Mo.232 of 2008. All the three matters were groupedtogether. In the SLP filed by the Sub Divisional Magistrate-cum-Assistant Collector with the support of the respondent State, hehad raised several grounds. Out of which the following are relevantfor the purpose of this writ petition and they read as follows:"III....that the said road has been used as a pathwayfor the past 40 years by the villagers resulting inaccrual of public right of free access in theirfavour....XV.That the High Court erred in holding that onlyland acquisition proceedings ought to have beenresorted to and ought not to have invoked section 133of Cr.P.C cannot be countenanced in law as it defeatsthe very object of legislating section 133 ofCr.P.C.".....XXXIV.That the High Court erred in holding inparagraph 4.1 that the service road is situated inKodanad limits and that it is a patta land belongingto the estate. Such finding of the High Court is notbased on any materials."11.Even after the final interim order was passed on3.2.2011 and after orders were reserved in this writ petition, on18.3.2011, the respondents moved the Supreme Court. The SupremeCourt had passed the following order on 18.3.2011, which reads asfollows:"Heard the counsel appearing for the petitioners asalso the counsel appearing for the Kodanad Estate.The High Court in the impugned judgment and orderhad made certain observations with regard to thefree passage through the road to the effect that therespondent-Estate would not deny access to thevillagers of Anna Nagar and Kamaraj Nagar to use the https://hcservices.ecourts.gov.in/hcservices/ road as it was done in the last 30 years with suchrestrictions and conditions as could be imposed forutilising the said road, considering the fact thatthe same is the only access to the outside world forthose villagers.We are informed that the State of Tamilnadu hasinitiated appropriate steps for acquisition of theland in question where the road exists but theurgency clause which is invoked by the State hasbeen challenged by the respondent no.1 herein andthe said matter is pending before the High Court. Weexpress no opinion with regard to the aforesaidcase, which is pending in the High Court. However, there is an allegation in the presentpetitions that restrictions are being put by therespondent no.1 in the free movement and use of thepathway during the night making it impossible forthe villagers to have access to the outside worldduring the night in case there is some emergency.Counsel for the Respondent although disputed theaforesaid fact yet in the facts and circumstances,we deem it appropriate to pass following furtherorders.Considering the said fact, we pass an order that thefree passage through the said road shall be allowedduring the day and night and the respondent No.1shall not put any lock or create any obstruction inthe movement of the traffic through the aforesaidroad even during the night. However, it shall beopen to the respondent No.1 to deploy watchmanduring the course of the night and there shall be apolice picket at the place so as to restrict anymovement of unruly elements using the road duringthe night."12.On the one hand, the respondent State was contendingbefore the Supreme Court that the pathway is not a private road,but a public pathway and that the petitioner is not entitled toprevent the access to the residents of the two hamlets. They arealso not justified in putting restrictions to the movement of theresidents of those two hamlets. Though in the criminal revisionpetition, this court after recording that it is a private road andthe Estate is entitled to regulate the movement within the road,but yet this court in the interest of residents of the two hamletshad advised the petitioner Estate to continue the earlier practiceso that the residents are not put to any difficulties. The SupremeCourt in its first interim order took note of the said advice andmade it as a part of its direction. Subsequently, the same interimorder was also made absolute. Notwithstanding the same, therespondent State was able to get much wider order even on 18.3.2011even while the cases are pending before this court and that the https://hcservices.ecourts.gov.in/hcservices/ criminal revision was not finally disposed of. 13.But, however it is seen from the records that therespondent officials were continuing to indulge in one proceedingor other without showing any legal justification. On 10.1.2009, theTahsildar, Kothagiri had issued a proceedings and informed thepetitioner Estate that the Principal Commissioner-cum-Commissionerfor Land Administration by a letter, dated 6.10.2008 had directedto sub divide Survey Nos.138/3, 139/1, 155/3, 155/4, 159 and160/1,4,5 and 6 to an extent of 0.87.5 hectares for the purpose ofacquiring the land by invoking the emergency clause and therefore,in order to permit the officials of the Department, they hadrequested the Estate Management to give permission to inspect thesame vide letters dated 14.11.2008 and 5.12.2008. Since thoseletters have come back unserved, the petitioner Estate was informedthat on 20.1.2009, the officials will be visiting the Estate forthe purpose of measuring and sub dividing various survey numbersindicated in the proceedings. Challenging the said communication,the petitioner Estate had filed W.P.No.2172 of 2009 before thisCourt. In that writ petition, when notice was ordered, theTahsildar, Kothagiri had filed an affidavit, dated Nil. On thebasis of the said affidavit, this court by an order dated 12.2.2009closed that writ petition. It is necessary to refer to thefollowing observations made in paragraphs 2 and 3 of the order,which reads as follows:"2.Today, on notice, the learned Government Pleaderhas filed an affidavit sworn by the Tahsildar,Kothagiri, wherein in paragraph 3, it has been statedas follows:-"In respect of the notice for inspection issuedin Na.Ka.A3.No.11919-08 dated 10.01.2009impugned in the Writ Petition, it is submittedthat this respondent will not re-issue thenotice or carry out any field inspection of theland proposed to be acquired before thepublication of notification under Section 4(1)of the Land Acquisition Act, 1894 and anyfurther action would be pursued in accordancewith law".3.Recording this statement of the Tahsildar,Kothagiri, this writ petition is closed as no furtherorders are necessary....."14.Even after this order, no steps were taken by therespondents for more than 1-1/2 years. But all of a sudden on31.12.2010, they had issued the impugned notification invoking theurgency clause as well as emergency clause for acquiring the landand also to dispense with the enquiry under Section 5A. In thenotification issued in G.O.Ms.No.114, Rural Development andPanchayat Raj Department, dated 31.10.2010, it was stated asfollows: https://hcservices.ecourts.gov.in/hcservices/ Whereas, it appears to the Government ofTamil Nadu that the Lands specified in the schedulebelow and situated in the Kodanad Village, KotagiriTaluk, The Nilgiris District is needed for the publicpurpose of developing of as public road to Anna Nagarand Kamaraj Nagar Hamlets, by Rural Development andPanchayat Raj Department. Notice to that effect ishereby given to all those to whom it may concern inaccordance with the provision of sub-section (1) ofSection 4 of the Land Acquisition Act, 1894 (CentralAct 1 of 1894);Whereas the residents of the Hamlets of AnnaNagar and Kamaraj Nagar of Kodanad Village Panchayatin kotagiri Panchayat Union, in the NilgirisDistrict, have been using the road in the landspecified in the Schedule below over a long period oftime;And whereas the said land is in thepossession of private owners and it is reported thatthe residents of the said Hamlets experience muchdifficulties in using the road in the above land andthey are not allowed to use the road during night.Such restrictions have caused much suffering andhardship to the residents of the Hamlets,particularly during emergencies such as deliveries,accidents, etc., as the land specified below isrequired for public purpose urgently in exercise ofpowers conferred by the sub-section (1) of theSection 17 of the said Act, the Governor of TamilNadu hereby orders to acquire the said land;Now, therefore, in exercise of the powersconferred by sub-section (2) of Section 4 of the saidAct, the Governor of Tamil Nadu hereby authorizes theRevenue Divisional Officer, Coonoor and his staff andworkmen to exercise the powers conferred by the saidsub-section (2).In exercise of powers conferred by sub-section (4) of Section 17 of the said Act, theGovernor of Tamil Nadu hereby orders that Section 5-Aof the said Act has been dispensed to this case inview of urgency as the same involves the right ofseveral members of the public for ingress and egressto their Hamlets."15.After setting out various survey numbers of the land,the total extent of acquisition was indicated as 1.31.34 hectares.Nowhere in the notification, the respondent State had referred tothe earlier proceedings taken under Section 133 Cr.P.C. and variousorders passed by this court as well as by the Supreme Court in thisregard. It is attacking the attempt made by the respondents to takeover the land in which private road is situated and also invoking https://hcservices.ecourts.gov.in/hcservices/ the urgency clause as well as emergency clause includingdispensation of Section 5A enquiry, the petitioner Estate has filedthe present writ petition.16.The contention raised by Mr.Gurukrishnakumar, learnedcounsel for the petitioner was that there was no necessity forinvoking either urgency clause or emergency clause and that theorder was issued with mala fide intentions. The attempt by therespondents was to give continuous trouble to the Estate in oneform or other. There was no public purpose involved in theacquisition especially when the residents of the two hamlets wereallowed to use the road . The restrictions if at all that wasimposed was in the interest of safety and security of the Estate.When proceedings were initiated as early as in the year 2007, afterfour years invoking the urgency clause was illegal and that thepower has been exercised in a mechanical fashion. Even if there wasany urgency as required under Sections 17(1) and 17(2), there wasno scope for dispensing with the enquiry under Section 5A which isa valuable right of the land owner which cannot be curtailed whileacquiring the land belonged to the Estate. Since the criminalrevision petitions are pending before the Supreme Court, it waswrong on the part of the respondents resorting to acquisitionproceedings. By the conversion of private road into public road,the value of the Estate will be diminished and that safety andprivacy of the residents of the Estate will be at stake. 17.It was further stated that while in the communicationsent by the Principal Commissioner-cum-Commissioner for LandAdministration, dated 6.10.2008 as evidenced from the letterwritten by the Tahsildar, Kothagiri, the land that was sought to beacquired was only 0.87.5 hectares, whereas in the presentnotification, there was greater demand of 1.31.34 hectares. Thiswill clearly show the non application of mind. It is also statedthat in the Nilgiris District, there are several hundred Estatewhich are having restrictions of usage of their road runningthrough their Estates. But acquisition of private road of thepetitioner Estate open to public was only pick and choose method.By converting the private road into public road, several illegalactivities including drug trafficking become possible and that somemiscreants were cultivating Kanja in the nearby Estate. A clearalternative pathway has been provided to the residents of the twohamlets. It was nothing but a mala fide intention in havingresorting to the land acquisition proceedings without anyjustification.18.In response to these allegations, in the counteraffidavit filed along with vacate stay application, the respondentscontended that this court in the criminal revision case hadreferred to the public demand for public road. Therefore, theresolution of the Panchayat council of Kothagiri, dated 10.7.2008had requested the State Government to acquire the land by invokingurgency clause. The said resolution was forwarded by the DistrictAdministration on 30.7.2010 to the Commissioner of LandAdministration for appropriate orders. It was thereafter the https://hcservices.ecourts.gov.in/hcservices/ Commissioner of Land Administration on 6.8.2010 had requested theState Government to invoke the urgency clause. After consideringthe proposal by the District Collector as well as materials andconsidering the request of the general public, the Government haddecided to invoke the urgency clause as the management of theEstate had imposed unreasonable restrictions to the general publicat Anna Nagar and Kamarajar Nagar by imposing Gate passes andcollecting huge toll fees from the poor agriculturists. Duringnight hours, no one was allowed to use the road and that theresidents of the two hamlets were facing great hardships especiallythe school going children, patients and pregnant women aresuffering a lot due to restrictions imposed by the management. Themanagement did not permit the usage of disputed road between 6.00p.m. and 6.00 a.m. of the next day. The were also restricting themovement of tea leaves which will have to be transported within areasonable time. The vehicles are not allowed to pass through theroad. The school going children are made to walk 2-1/2 Kms to theschool to take the school bus or the bus to reach the school.Therefore, considering the grave urgency, the Government haddecided to invoke the urgency clause to acquire the land. 19.Before invoking the land acquisition proceedings, theDistrict administration claimed that they had inspected the saidland and after completing all formalities, the expenditure was alsoestimated by the Joint Commissioner of Land Reforms. When theTahsildar, Kothagiri sent an information by letter dated 10.1.2009for permitting them to do survey work. The petitioner hadchallenged the same. Subsequently, the Assistant Director ofPanchayat and Audit, Uthagamandalam by letter dated 9.11.2009 hadrequested the acquisition of land belonging to the Estate invarious survey numbers. The original extent to acquire the landthat was estimated was revised approximately which is 1.31.34hectares or 3.25 acres taking note of the width of the road. Onperusing this proposal, the Government had issued the impugnedG.O.Ms.No.114, Rural Development and Panchayat Raj Department,dated 31.10.2010 and approved and notified Section 4(1)notification invoking Section 17(1) of the Land Acquisition Act.Following this, declaration under Section 6 was also published on22.1.2011. It is also stated that in the order passed in thecriminal revision case, this court had observed that permanentsolution is only the land acquisition and not by any other manner.But, in the counter affidavit filed by the respondent State, nospecial reasons were given for dispensing with the enquiry underSection 5A by invoking the clause under Section 17(4) of the LandAcquisition Act.20.The petitioner in the rejoinder after reiterating theearlier contentions had stated that the alleged sufferings by thevillagers including school going children, pregnant women as wellas wastage of tea leaves due to delay in obtaining gate pass weremade by the respondent State for the first time before this court.The management were issuing gate pass speedily without any delay.The allegation that an Award has been passed under Section 6 on20.1.2001 was denied. Even when the matter came up on 24.01.2011, https://hcservices.ecourts.gov.in/hcservices/ there was no reference of any Award being passed. It is also statedthat there was no warrant for invoking the emergency clause and theaction of the respondents were mala fide.21.In the reply to the rejoinder, the respondent State hadstated that paragraph 6 referred to the interim order passed bythe Supreme Court on 18.3.2011. But it was stated that theproceedings under Section 133 Cr.P.C was only a temporary measureand did not ensure permanent relief. With reference to not takingover private roads of the other Estates, it was stated that therewas no complaint received from the other Estates. But, curiously,in paragraph 4, for the first time in the reply to the rejoinder,the State Government had averred as follows:"4....It is an admitted fact that the road belongs tothe Estate and that is why the Government is goingfor acquisition of the land so that it could continueto be used by the public as well as the Estatemanagement...."22.Even in the counter affidavit, the respondents have notstated as to why the urgency clause was invoked. Even assuming thatthere was an urgency in the acquisition, as to why enquiry underSection 5A was said to be dispensed with.23.The learned Advocate General had circulated the originalfiles for the purpose of satisfying this Court that there wereactually materials available with the respondents and that therewas an application of mind. A perusal of the file clearly showedthat it started with the resolution of Kodanadu Panchayat counciland that after complaining about the restrictions in using the roadand the sufferings by the residents of hamlets, a requisition wasmade for acquiring the land running to the length of 2-1/2 kms withwidth of 3-1/2 meters by invoking the emergency clause. Thisresolution of the panchayat communicated by letter, dated 18.7.2008was addressed to the District Revenue Officer, Udagamandalam whichwas done after the order was passed by this court in the criminalrevision on 28.4.2008. Before that date, already the Sub DivisionalMagistrate had moved the Supreme Court and had obtained an order on15.5.2008, the first interim order from the Supreme Courtreinforcing the earlier advice given by this court in the criminalrevision. But the reasons found in the resolution of the Panchayatwere very similar reasons which was being utilized by the SubDivisional Magistrate as part of the exhibits in passing the orderunder Section 133 Cr.P.C. 24.The contention raised by the Sub Divisional Magistratebefore the Supreme Court was that it was a public road and theEstate management cannot obstruct the movement of the residents ofthat area. If according to the respondent, it is a private road asadmitted in the reply to the rejoinder (extracted above) for thefirst time and that it belonged to the Estate and hence it requiresacquisition, there was no need for the respondents to continue thespecial leave appeal (Criminal) before the Supreme Court. In https://hcservices.ecourts.gov.in/hcservices/ essence, the respondents cannot take advantage of certainobservations made by this court vide judgment in (2008) 2 MLJ(Crl.) 402, dated 28.4.2008 for the reasons to resort to landacquisition, yet at the same time, challenge the very basis of thesaid judgment before the Supreme Court. The Supreme Court had alsopassed an interim order and posted the matter for final hearing.Therefore, the respondent State has no compelling reason to invokethe urgency clause as recorded in the impugned notification. Eventhough the resolution of the panchayat, (a photocopy of which wasenclosed in page 75 of the file) was dated 18.7.2008, the firstproposal of the District Collector itself was by letter dated31.12.2009, i.e., nearly after a period of one year and fivemonths. 25.In fact, copies of the communications sent by theDistrict Collector dated 03.12.2009, 24.12.2009 and 30.07.2010 asreferred to in the letter of Principal Secretary and theCommissioner for Land Administration addressed to the firstrespondent, dated 6.8.2010 did find place in the file. In thecommunication dated 6.8.2010, the Principal Secretary and theCommissioner for Land Administration had only referred to thegrievance projected in the panchayat letter, which was sent asearly as on 18.7.2008 to the District Collector. In the firstletter dated 03.12.2009, the District Collector in paragraph 4wrote to the Principal Secretary and Commissioner for LandAdministration as follows:"4)This proposals deals with acquisition of dry landin village area with an extent of 0.87.5 hectares(or) 2.16 acres in kodanad Village, kotagiri Taluk,The Nilgiris district. The extent requisitioned bythe requisitioning Department has been reconciledwith the revenue records and found to be correct interms of measurement. The sub division records willbe prepared and submitted after publication of 4(1)notification. The Honourable High Court, Madras inits judgement dated 12.02.09 in WP.No.2172 of 2009and MP No.1 of 2009 has directed to enter in landonly after publication of notification under section4(1) of the La Act 1894. The notification u/s 6 willbe sent after the notification of 4(1)."26.Even in the letter sent by the District Collector, dated24.1.2010, the extent of the land was mentioned as 0.87.5 hectaresand the compensation was worked out only in terms of that extent ofland only. It was in a further communication dated 23.10.2010 thattoo on the basis of the discussion the District Collector had withthe Secretary to the first respondent has sent a revised proposalincreasing the extent of land to be acquired to 3.25 acres or1.31.34 hectares. By the first two communications, the area wasreferred as an extent of 0.87.5 hectares. It is curious to notethat in the communication dated 3.12.2009, the District Collectorhad mentioned an extent as 0.87.5 hectares of lands to be acquiredand that in the further communication, dated 24.1.2010, once again https://hcservices.ecourts.gov.in/hcservices/ the same extent was reinforced. But it was before this period, theTahsildar, Kothagiri made an abortive attempt to inspect theproperties by his letter dated 10.1.2009. But when the same waschallenged, she filed an affidavit which was recorded by this courton 12.2.2009 that she will not reissue the notice to carryout anyfield inspection of the land proposed to be acquired beforepublication of the notification under Section 4(1). But in theletter dated 23.10.2010, the District Collector had revised thearea of acquisition after having discussion with the Secretary tothe Government, Rural Development Department. In the very sameletter, the District Collector also referred in paragraph 5 thatthe order of the High Court only prohibits the entry into KodanadEstate land for taking survey work till the publication of Section4(1) notification. But the cost of the land acquisition can beprepared tentatively based on local enquiry without fieldinspection. Hence it is necessary to refer to the statement foundin the letter written by the District Collector, Nilgiris to thefirst respondent, dated 23.10.2010, which was also referred asreference No.3 in the impugned G.O.Ms.No.114, Rural Development andPanchayat Raj Department, dated 31.12.2010. The said paragraphreads as follows:"5)The Hon'ble High Court, madras in its Judgmentdated 12.2.2009 in W.P.No.2172/2009 prohibits entry into the Kodanad Estate lands for taking survey worksetc., till the publication of 4(1) notification underLA Act. Therefore, the cost of the Land Acquisition isprepared tentatively based on the local enquiries andwithout field inspection."27.After this letter, there was no other material in thefile to show that any field inspection was conducted in the land inquestion. But the extent of the land to be acquired was increasedand the cost was worked out on the basis of tentative proposal.But, the first respondent State curiously in their counteraffidavit, dated 2.2.2011 in paragraph 12 had averred as follows:"12....Prior to invoking the land acquisitionproceedings, the District Administration inspectedthe said land for acquisition and after completingall formalities, the expenditure has also beenestimated by the Joint Commissioner of LandReforms."(Emphasis added)28.This statement made by the first respondent is not basedupon any record. But, instead it is contrary to the materials onrecord found in the original file. It is for the first respondentState to explain as to when an inspection was done by the Districtadministration especially when the District administration itselfhad given an undertaking that they will not conduct any inspectionuntil the publication of the notification under Section 4(1). TheDistrict Collector had also reiterated the same contention on23.10.2010. https://hcservices.ecourts.gov.in/hcservices/

29.These two factors, i.e., that the area to be acquiredwas doubled without any material and that without any fieldinspection, orders were passed invoking the urgency clause foracquiring the land of the petitioner Estate will clearly show thatthere was total non application of mind in acquiring the landsbelonged to the petitioner Estate. In the same communication, dated24.1.2010, the District Collector found that the road is a bitumentar road and was in good condition and that the road was maintainedby the owner by spending amounts. The same may be reproduced below:"Apart from this 1.2 K.m BT road is in good conditionthe road has been maintained by owner by spendingroughly calculated to an amount of Rs.21,17,988/-. Theamount has to be paid to the land owner."30.Further, in the communication, dated 23.10.2010, theDistrict Collector had worked out the compensation on the basis ofthe existing three meters with Bitumen tar road on 2.189 Km length.But in the earlier communication, it was referred to as 1.2 Km asBitumen Tar road. In the subsequent communication within twomonths, it was shown as 2.189 Kms. length. All theseinconsistencies and wrong noting in the file revealed that theDistrict administration as well as the State Government were notclear in their proposals for acquiring the land. Except byreferring to the resolution of the year 2008 passed by thepanchayat council, (which was sent immediately after the judgmentof this court under Section 133 Cr.P.C. Proceedings) there was noother materials found in the file. Inspite of the panchayat'srequest for urgency clause to be invoked, there was no attempt onthe part of the State to issue any notification immediatelythereafter, thereby making it appear that even the understanding ofthe State, there was no real urgency in dealing with the issue.Neither the file showed any plausible reason for the four yearsdelay in issuing the notification nor there was any ground urged toinvoke the urgency clause in dispensing with the enquiry underSection 5A.31.In this case, already in the criminal proceedingsinitiated under Section 133 Cr.P.C., the residents of the hamletswere assured of access and that in the interim order, dated18.3.2011, the Supreme Court had directed the opening of the roadwithout any hindrance to all. Further it is not the case ofacquiring barren land for laying a new road, which may requiremeasuring, leveling and tarring the road for a considerable length.Even as per the admission of the District Administration, a puccaand well maintained road is already in existence. The very proposalto pay development charges to the land owner will show that therewas no case for any real urgency in the matter. Apart from that,there being no material to find that the Government had applied itsmind in invoking the urgency clause and not hearing the objectionsof the land owner, i.e., the petitioner Estate. It is in thesefactual background, the legal contentions advanced by both sideswill have to be looked into. https://hcservices.ecourts.gov.in/hcservices/

32.It is necessary to refer to Section 17 of the LandAcquisition Act, 1894 in its entirety as amended by the Tamil NaduAmendment Act 68/1984.“17.Special powers in cases of urgency.—(1) In casesof urgency, whenever the appropriate Government sodirects, the Collector, though no such award has beenmade, may, on the expiration of fifteen days from thepublication of the notice mentioned in Section 9 sub-section (1), take possession of any land needed forpublic purpose. Such land shall thereupon vestabsolutely in the Government, free from allencumbrances.["Explanation.-This sub-section shall apply to anywaste or arable land, notwithstanding the existencethereon of scattered trees or temporary structures,such as huts, pandals or sheds".] *(2)[In the following cases, that is to say--] (a)whenever, owing to any sudden change in the channel ofany navigable river or other unforeseen emergency, itbecomes necessary for any Railway Administration toacquire the immediate possession of any land for themaintenance of their traffic or for the purpose ofmaking thereon a riverside or ghat station, or ofproviding convenient connection with or access to anysuch station, [(b)"Whenever in the opinion of the Collector, itbecome necessary to acquire the immediate possessionof any land"--(i)for the purpose of any library or educationalinstitution, or(ii)for the construction, extension orimprovement of--(A)any building or other structure in anyvillage for the common use of the inhabitants ofsuch village, or(B)any godown for any society registered ordeemed to be registered under the Madras Co-operativeSocieties Act, 1932, (Madras Act VI of 1932), or(C)any dwelling-house for the poor, or(D)any irrigation tank, irrigation or drainagechannel or any well or(E)any road".] * or the appropriate Government considers it necessaryto acquire the immediate possession of any land forthe purpose of maintaining any structure or systempertaining to irrigation, water supply, drainage, road https://hcservices.ecourts.gov.in/hcservices/ communication or electricity, the Collector may,immediately after the publication of the noticementioned in sub-section (1) and with the previoussanction of the appropriate Government, enter upon andtake possession of such land, which shall thereuponvest absolutely in the Government free from allencumbrances:Provided that the Collector shall not takepossession of any building or part of a building underthis sub-section without giving to the occupierthereof at least forty-eight hours’ notice of hisintention so to do, or such longer notice as may bereasonably sufficient to enable such occupier toremove his movable property from such building withoutunnecessary inconvenience.(3) In every case under either of the preceding sub-sections the Collector shall at the time of takingpossession offer to the persons interestedcompensation for the standing crops and trees (if any)on such land and for any other damage sustained bythem caused by such sudden dispossession and notexcepted in Section 24; and, in case such offer is notaccepted, the value of such crops and trees and theamount of such other damage shall be allowed for inawarding compensation for the land under theprovisions herein contained.(3-A) Before taking possession of any land under sub-section (1) or sub-section (2), the Collector shall,without prejudice to the provisions of sub-section(3),—(a) tender payment of eighty per centum of thecompensation for such land as estimated by himto the persons interested entitled thereto, and(b) pay it to them, unless prevented by some oneor more of the contingencies mentioned inSection 31 sub-section (2),and where the Collector is so prevented, theprovisions of Section 31 sub-section (2) (except thesecond proviso thereto), shall apply as they apply tothe payment of compensation under that section.(3-B) The amount paid or deposited under sub-section(3-A), shall be taken into account for determining theamount of compensation required to be tendered underSection 31, and where the amount so paid or depositedexceeds the compensation awarded by the Collectorunder Section 11, the excess may, unless refundedwithin three months from the date of the Collector’saward, be recovered as an arrear of land revenue. https://hcservices.ecourts.gov.in/hcservices/ (4)In the case of any land to which, in the opinion ofthe appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, theappropriate Government may direct that the provisionsof Section 5-A shall not apply, and, if it does sodirect, a declaration may be made under Section 6 inrespect of the land at any time after the date of thepublication of the notification under Section 4 sub-section (1).”[The starred portions are the insertions by theState Amendment]33.Mr.Gurukrishnakumar, learned Counsel appearing for theEstate referred to the following decisions:34.The Supreme Court vide its judgment in Union of India v.Mukesh Hans reported in (2004) 8 SCC 14 had analysed thedistinction between the application of Section 17(1) and Section 17(2) of the Land Acquisition Act. It had also emphasised therequirement of an enquiry under Section 5A and held it was not anempty formality. It is necessary to extract the following passagesfound in paragraphs 29 to 33 as well as paragraph 35 which is asfollows:"29.A careful perusal of the above section showsthat sub-section (1) of Section 17 contemplatestaking possession of the land in the case of anurgency without making an award but after thepublication of Section 9(1) notice and after theexpiration of 15 days of publication of Section 9(1)notice. Therefore, it is seen that if theappropriate Government decides that there is anurgency to invoke Section 17(1) in the normal courseSection 4(1) notice will have to be published,Section 6 declaration will have to be made and aftercompleting the procedure contemplated under Sections7 and 8, Section 9(1) notice will have to be givenand on expiration of 15 days from the date of suchnotice the authorities can take possession of theland even before passing of an award.30.Sub-section (2) of Section 17 contemplates adifferent type of urgency inasmuch as it should bean unforeseen emergency. Under this section if theappropriate Government is satisfied that there issuch unforeseen emergency the authorities can takepossession of the land even without waiting for thefifteen-day period contemplated under Section 9(1).Therefore, in cases, where the Government issatisfied that there is an unforeseen emergency, itwill have to in the normal course, issue a Section 4(1) notification, hold Section 5-A inquiry, makeSection 6 declaration, and issue Section 9(1) notice https://hcservices.ecourts.gov.in/hcservices/ and possession can be taken immediately thereafterwithout waiting for the period of 15 days prescribedunder Section 9(1) of the Act.31.Section 17(4) as noticed above, provides that incases where the appropriate Government has come tothe conclusion that there exists an urgency orunforeseen emergency as required under sub-section(1) or (2) of Section 17, it may direct that theprovisions of Section 5-A shall not apply and ifsuch direction is given then Section 5-A inquiry canbe dispensed with and a declaration may be madeunder Section 6 on publication of Section 4(1)notification and possession can be made.32.A careful perusal of this provision which is anexception to the normal mode of acquisitioncontemplated under the Act shows that mere existenceof urgency or unforeseen emergency though is acondition precedent for invoking Section 17(4),that by itself is not sufficient to direct thedispensation of the Section 5-A inquiry. It requiresan opinion to be formed by the Government concernedthat along with the existence of such urgency orunforeseen emergency there is also a need fordispensing with Section 5-A inquiry which indicatesthat the legislature intended the appropriateGovernment to apply its mind before dispensing withSection 5-A inquiry. It also indicates that mereexistence of an urgency under Section 17(1) orunforeseen emergency under Section 17(2) would notby itself be sufficient for dispensing with Section5-A inquiry. If that was not the intention of thelegislature then the latter part of sub-section (4)of Section 17 would not have been necessary and thelegislature in Sections 17(1) and (2) itself couldhave incorporated that in such situation ofexistence of urgency or unforeseen emergencyautomatically Section 5-A inquiry will be dispensedwith. But then that is not the language of thesection which in our opinion requires theappropriate Government to further consider the needfor dispensing with Section 5-A inquiry in spite ofthe existence of unforeseen emergency. Thisunderstanding of ours as to the requirement of anapplication of mind by the appropriate Governmentwhile dispensing with Section 5-A inquiry does notmean that in each and every case when there is anurgency contemplated under Section 17(1) andunforeseen emergency contemplated under Section 17(2) exists that by itself would not contain the needfor dispensing with Section 5-A inquiry. It ispossible in a given case the urgency noticed by theappropriate Government under Section 17(1) or theunforeseen emergency under Section 17(2) itself may https://hcservices.ecourts.gov.in/hcservices/ be of such degree that it could require theappropriate Government on that very basis todispense with the inquiry under Section 5-A but thenthere is a need for application of mind by theappropriate Government that such an urgency fordispensation of the Section 5-A inquiry is inherentin the two types of urgencies contemplated underSections 17(1) and (2) of the Act.33.An argument was sought to be advanced on behalfof the appellants that once the appropriateGovernment comes to the conclusion that there is anurgency or unforeseen emergency under Sections 17(1)and (2), the dispensation with inquiry under Section5-A becomes automatic and the same can be done by acomposite order meaning thereby that there is noneed for the appropriate Government to separatelyapply its mind for any further emergency fordispensation with an inquiry under Section 5-A. Weare unable to agree with the above argument becausesub-section (4) of Section 17 itself indicates thatthe “Government may direct that the provisions ofSection 5-A shall not apply” (emphasis supplied)which makes it clear that not in every case wherethe appropriate Government has come to theconclusion that there is urgency and under sub-section (1) or unforeseen emergency under sub-section (2) of Section 17, the Government will ipsofacto have to direct the dispensation of theinquiry.......35.At this stage, it is relevant to notice that thelimited right given to an owner/person interestedunder Section 5-A of the Act to object to theacquisition proceedings is not an empty formalityand is a substantive right, which can be taken awayfor good and valid reason and within the limitationsprescribed under Section 17(4) of the Act...."The aforesaid reasoning came to be followed in the successivedecisions of the Supreme Court.35.The Supreme Court vide its decision in Sheikhar HotelsGulmohar Enclave v. State of Uttar Pradesh reported in (2008) 14SCC 716 had emphasised the need to guard against the overzealousauthorities invoking the emergency clause to dispense with theenquiry under Section 5A. Paragraph 8 of the judgment may beusefully extracted below:-""8.There is no gainsaying in the fact that thisright to file objection under Section 5-A is avaluable right and the Governments are not given afree hand to dispense with Section 5-A. Section 5-Ais only a safeguard against the arbitrary exercise https://hcservices.ecourts.gov.in/hcservices/ of the power by the State. But one should also notlose sight of the fact that invocation of such aprovision is also sometimes imperative as in orderto meet the urgency of the situation it needs to beinvoked in public interest. It depends upon case tocase. Sometimes it may not be necessary at all andthe State functionaries may sometimes out ofoverzealousness invoke this provision which wouldseriously jeopardise the interest of the people.Therefore, it depends upon case to case where in agiven situation Section 5-A has been correctlyinvoked and the authorities were satisfied in anobjective manner...."(Emphasis added)36.The Supreme Court in Essco Fabs (P) Ltd. v. State ofHaryana, reported in (2009) 2 SCC 377 held that mere invocation ofSection 17(1) or Section 17(2) of the Land Acquisition Act byitself will not dispense with the enquiry under Section 5A and thatthere must be a notification under Section 17(4) is necessary todispense with an enquiry under Section 5A of the Act. The relevantpassages found in paragraphs 39,40,44,52 to 54 may be usefullyextracted below:-"39.It is in exercise of power of eminent domain thata sovereign may acquire property which does notbelong to him. In the circumstances, as a generalrule, before exercise of power of eminent domain, lawmust provide an opportunity of hearing against theproposed acquisition. Even without a specificprovision to that effect, general law requiresraising of objections by and affording opportunity ofhearing to the owner of the property. The LandAcquisition (Amendment) Act, 1923 (Act 38 of 1923),however, expressly made such provision by insertingSection 5-A in the Act.40.It is, therefore, clear that after issuance ofpreliminary notification under Section 4 and beforefinal notification under Section 6 of the Act, theappropriate Government is enjoined to hear thepersons interested in the property before he isdeprived of his ownership rights. But then there maybe cases of “urgency” or “unforeseen emergency” whichmay brook no delay for acquisition of such propertyin larger public interest. The legislature,therefore, thought it appropriate to deal with suchcases of exceptional nature and in its wisdom enactedSection 17.44....it is clear that even in cases falling under orcovered by sub-sections (1) and (2) of Section 17 ofthe Act and where the Government intends to acquireland in cases of “urgency” or “unforeseen emergency”, https://hcservices.ecourts.gov.in/hcservices/ it is still required to follow procedure underSection 5-A of the Act before issuance of finalnotification under Section 6 of the Act. It is onlywhen the Government also makes a declaration undersub-section (4) of Section 17 that it becomesunnecessary to take recourse to procedure underSection 5-A of the Act.52..... it is clear that normal rule for acquisitionof land under the Act is issuance of notificationunder sub-section (1) of Section 4, hearing ofobjections under Section 5-A and issuance of finalnotification under Section 6 of the Act. Award willbe made by the Collector, notice has to be issued tothe landowners or the person interested andthereafter possession can be taken.53.Section 17, no doubt, deals with specialsituations and exceptional circumstances coveringcases of “urgency” and “unforeseen emergency”. Incase of “urgency” falling under sub-section (1) ofSection 17 or of “unforeseen emergency” covered bysub-section (2) of Section 17, special powers may beexercised by appropriate Government but as held by athree-Judge Bench decision before more than fourdecades in Nandeshwar Prasad1 and reiterated by athree-Judge Bench decision in Mukesh Hans2, even insuch cases, inquiry and hearing of objections underSection 5-A cannot ipso facto be dispensed withunless a notification under sub-section (4) ofSection 17 of the Act is issued. The legislativescheme is amply clear which merely enables theappropriate Government to issue such notificationunder sub-section (4) of Section 17 of the Actdispensing with inquiry under Section 5-A if theGovernment intends to exercise the said power. Theuse of the expression “may” in sub-section (4) ofSection 17 leaves no room of doubt that it is adiscretionary power of the Government to direct thatthe provisions of Section 5-A would not apply to suchcases covered by sub-sections (1) or (2) of Section17 of the Act.54.In our opinion, therefore, the contention oflearned counsel for the respondent authorities is notwell founded and cannot be upheld that once a case iscovered by sub-sections (1) or (2) of Section 17 ofthe Act, sub-section (4) of Section 17 wouldnecessarily apply and there is no question of holdinginquiry or hearing objections under Section 5-A ofthe Act. Acceptance of such contention or upholdingof this argument will make sub-section (4) of Section17 totally otiose, redundant and nugatory." https://hcservices.ecourts.gov.in/hcservices/

37.The Supreme Court in its decision in Mahender Pal v.State of Haryana, reported in (2009) 14 SCC 281 has held that evenif the acquisition is for the public purpose of laying a road, anopinion must be formed by the Government that there exists anemergency. The sine qua non for forming an opinion there must exista fundamental fact. The reasoning found in paragraphs 6 to 8 may beextracted below:-"6.The Act has been enacted for the acquisition ofland for public purposes and for companies. Havingregard to the provisions contained in Article 300-Aof the Constitution of India as also the provisionsof the Act, the State in exercise of its power of“eminent domain” may deprive a person of his rightto a property only when there exists a publicpurpose and a reasonable amount by way ofcompensation is offered for acquisition of his land.The Act fulfils the aforementioned criteria. It,however, lays down the detailed procedures therefor.It is also of some significance to notice thatParliament, by reason of the Act, has imposedfurther restrictions/conditions for acquisition ofland for the benefit of the landowner.7.Right to file an objection and hearing thereof toa notification issued by the appropriate Governmentexpressing its intention to acquire a property is avaluable right. Such a valuable right of hearing andparticularly in a case of this nature could havebeen taken away only if conditions precedent forexercise of this emergency power stood satisfied.Sub-section (4) of Section 17 of the Act is anexception to Section 5-A of the Act. An opinion ofthe Government in this behalf is required to beformed if there exists an emergency. Existence ofthe foundational fact for invoking theaforementioned provision is, therefore, a sine quanon for formation of opinion. Such subjectivesatisfaction must be based on an objective criteria.Ipse dixit on the part of the State would not servethe purpose. The appellants, in our opinion, hadmade out a case for examination of their cases indetail. The nature of constructions and otherfeatures of the land sought to be acquired have beennoticed by us hereinbefore.8.The purported public purpose for which the land isto be acquired is for laying down a road. We are notunmindful of the fact that the road connection isone of the purposes mentioned in sub-section (2) ofSection 17 of the Act in respect whereof sub-section(4) thereof would apply. But the same would not meanthat for the purpose of road connection irrespectiveof the nature of cases and/or irrespective of the https://hcservices.ecourts.gov.in/hcservices/ nature of the road to be constructed; sub-section(4) of Section 17 of the Act could be invoked."(Emphasis added)38.The parameters under which an order under Section 17(4)can be challenged came to be considered by the Supreme Court inTika Ram v. State of Uttar Pradesh reported in (2009) 10 SCC 689.The following passages found in paragraphs 113 and 115 may beextracted below:-"113..... The High Court was, undoubtedly, correctin holding that there was no necessity of a noticesince the satisfaction required on the part of theexecutive is a subject of (sic subjective)satisfaction, which can only be assailed on theground that there was no sufficient material todispense with the enquiry or the order suffers frommalice. We will deal with the question as towhether there was an urgency and what is the natureof urgency required.....115.While considering as to whether the Governmentwas justified in doing away with the inquiry underSection 5-A, it must be noted that there are noallegations of mala fides against the authority. Noevidence has been brought before the judgment andthe High Court has also commented on this. Thehousing development and the planned developmentshave been held to be the matters of great urgencyby the Court in Pista Devi case828. In the presentcase we have seen the judgment of the High Courtwhich has gone into the records and has recordedcategorical finding that there was sufficientmaterial before the State Government and the StateGovernment has objectively considered the issueof urgency. Even before this Court, there were noallegations of mala fides. A notice can be taken ofthe fact that all the lands which were acquiredultimately came to be utilised for the Scheme. We,therefore, reject the argument that there was nourgency to justify dispensation of Section 5-Ainquiry by applying the urgency clause." (Emphasis added)39.The case in Tika Ram (cited supra) came to be quotedwith approval in Nand Kishore Gupta v. State of Uttar Pradeshreported in (2010) 10 SCC 282. The following passages found inparagraphs 94 and 95 can be usefully quoted below:"94.The law on this subject was thoroughly discussedin Tika Ram v. State of U.P.24 to which one of us(V.S. Sirpurkar) was a party. In that decision also,we had reiterated that the satisfaction required onthe part of the executive in dispensing with theenquiry under Section 5-A is a matter subject to https://hcservices.ecourts.gov.in/hcservices/ satisfaction and can be assailed only on the groundthat there was no sufficient material to dispensewith the enquiry or that the order suffered frommalice.95.It was also found on facts in Tika Ram v. Stateof U.P.424 that there was no charge of mala fideslevelled against the exercise of power and there wasmaterial available in support of the satisfaction onthe part of the executive justifying the invocationof the provisions of Section 17. The position is nodifferent in the present case. The High Court in thepresent matter went a step ahead and examined thebulky original record itself to find that there wasfull material available."40.The Supreme Court recently in its decision in AnandSingh v. State of Uttar Pradesh reported in (2010) 11 SCC 242 hasheld that the right to be heard under Section 5A is a valuableright and it makes the compulsory acquisition consistent withprinciples of natural justice. It was also held that beforedispensing with an enquiry the Government must apply its mind andthe power cannot be lightly invoked. If it is made for purposes notgenuine, then judicial review is permissible. The Government mustproduce records to justify its action. Delay in acquisition willmake the order invalid. It is necessary to extract the followingpassages found in paragraphs 41 to 48 of the judgment and it is asfollows:"41.The power of eminent domain, being inherent inthe Government, is exercisable in the publicinterest, general welfare and for public purpose.Acquisition of private property by the State in thepublic interest or for public purpose is nothing butan enforcement of the right of eminent domain. InIndia, the Act provides directly for acquisition ofparticular property for public purpose. Though theright to property is no longer a fundamental rightbut Article 300-A of the Constitution mandates thatno person shall be deprived of his property save byauthority of law. That Section 5-A of the Actconfers a valuable right to an individual is beyondany doubt. As a matter of fact, this Court has timeand again reiterated that Section 5-A confers animportant right in favour of a person whose land issought to be acquired.42.When the Government proceeds for compulsoryacquisition of a particular property for publicpurpose, the only right that the owner or the personinterested in the property has, is to submit hisobjections within the prescribed time under Section5-A of the Act and persuade the State authorities todrop the acquisition of that particular land by https://hcservices.ecourts.gov.in/hcservices/ setting forth the reasons such as the unsuitabilityof the land for the stated public purpose; the gravehardship that may be caused to him by suchexpropriation, availability of alternative land forachieving public purpose, etc. Moreover, the rightconferred on the owner or person interested to fileobjections to the proposed acquisition is not onlyan important and valuable right but also makes theprovision for compulsory acquisition just and inconformity with the fundamental principles ofnatural justice.43.The exceptional and extraordinary power of doingaway with an enquiry under Section 5-A in a casewhere possession of the land is required urgently orin an unforeseen emergency is provided in Section 17of the Act. Such power is not a routine power andsave circumstances warranting immediate possessionit should not be lightly invoked. The guideline isinbuilt in Section 17 itself for exercise of theexceptional power in dispensing with enquiry underSection 5-A. Exceptional the power, the morecircumspect the Government must be in its exercise.The Government obviously, therefore, has to applyits mind before it dispenses with enquiry underSection 5-A on the aspect whether the urgency is ofsuch a nature that justifies elimination of summaryenquiry under Section 5-A.44.A repetition of the statutory phrase in thenotification that the State Government is satisfiedthat the land specified in the notification isurgently needed and the provision contained inSection 5-A shall not apply, though may initiallyraise a presumption in favour of the Government thatprerequisite conditions for exercise of such powerhave been satisfied, but such presumption may bedisplaced by the circumstances themselves having noreasonable nexus with the purpose for which thepower has been exercised. Upon challenge being madeto the use of power under Section 17, the Governmentmust produce appropriate material before the Courtthat the opinion for dispensing with the enquiryunder Section 5-A has been formed by the Governmentafter due application of mind on the material placedbefore it.45.It is true that power conferred upon theGovernment under Section 17 is administrative andits opinion is entitled to due weight, but in a casewhere the opinion is formed regarding the urgencybased on considerations not germane to the purpose,the judicial review of such administrative decisionmay become necessary. https://hcservices.ecourts.gov.in/hcservices/

46.As to in what circumstances the power ofemergency can be invoked are specified in Section 17(2) but circumstances necessitating invocation ofurgency under Section 17(1) are not stated in theprovision itself. Generally speaking, thedevelopment of an area (for residential purposes) ora planned development of city, takes many years ifnot decades and, therefore, there is no reason whysummary enquiry as contemplated under Section 5-Amay not be held and objections of landowners/personsinterested may not be considered. In many cases, ongeneral assumption likely delay in completion ofenquiry under Section 5-A is set up as a reason forinvocation of extraordinary power in dispensing withthe enquiry little realising that an important andvaluable right of the person interested in the landis being taken away and with some effort enquirycould always be completed expeditiously.47.The special provision has been made in Section 17to eliminate enquiry under Section 5-A in deservingand cases of real urgency. The Government has toapply its mind on the aspect that urgency is of suchnature that necessitates dispensation of enquiryunder Section 5-A. We have already noticed a fewdecisions of this Court. There is a conflict of viewin the two decisions of this Court viz. NarayanGovind Gavate3 and Pista Devi6. In Om Prakash313 thisCourt held that the decision in Pista Devi6 must beconfined to the fact situation in those days when itwas rendered and the two-Judge Bench could not havelaid down a proposition contrary to the decision inNarayan Govind Gavate3. We agree.48.As regards the issue whether pre-notification andpost-notification delay would render the invocationof urgency power void, again the case law is notconsistent. The view of this Court has differed onthis aspect due to different fact situationprevailing in those cases. In our opinion such delaywill have material bearing on the question ofinvocation of urgency power, particularly in asituation where no material has been placed by theappropriate Government before the Court justifyingthat urgency was of such nature that necessitatedelimination of enquiry under Section 5-A." (Emphasisadded)41.Very recently the Supreme Court once again dealt withthe purpose of land acquisition and the lethargy shown by theGovernment can vitiate the proceedings taken under Section 17 ofthe Land Acquisition Act in Dev Sharan and others Vs. State ofUttar Prdesh and others reported in JT 2011 (3) SC 102. Thefollowing passages found in paragraphs 15 and 36 may be usefully https://hcservices.ecourts.gov.in/hcservices/ reproduced below:"15.Admittedly, the Land Acquisition Act,a pre-Constitutional legislation of colonialvintage is a drastic law, being expropriatoryin nature as it confers on the State apower which affects person's property right.Even though right to property is nolonger fundamental and was never a naturalright, and is acquired on a concession by theState, it has to be accepted thatwithout right to some property, otherrights become illusory. This Court isconsidering these questions, especially, inthe context of some recent trends inland acquisition. This Court is of theopinion that the concept of public purposein land acquisition has to be viewedfrom an angle which is consistent with theconcept of a welfare State.36.This Court also held that in view of the ratio inUnion of India V. Mukesh Hans MANU/SC/0773/2004 :(2004) 8 SCC 14, Sub-section (4) of Section 17cannot be pressed into service by officers who arenegligent and lethargic in initiating acquisitionproceedings."42.Per contra, Mr.P.S.Raman, learned Advocate General alsoreferred to the following judgments.43.The decision of the Supreme Court in Chairman & MD, BPLLtd. v. S.P. Gururaja, reported in (2003) 8 SCC 567 was relied uponto contend that what was necessary to see in such proceedings isfair play in action. Reference was made to paragraph 34, which isas follows:"34.Undue haste also is a matter which by itself wouldnot have been a ground for exercise of the power ofjudicial review unless it is held to be mala fide.What is necessary in such matters is not the timetaken for allotment but the manner in which the actionhad been taken. The court, it is trite, is notconcerned with the merit of the decision but thedecision-making process. In the absence of any findingthat any legal malice was committed, the impugnedallotment of land could not have been interfered with.What was only necessary to be seen was as to whetherthere had been fair play in action."44.The decision in Bondu Ramaswamy v. Bangalore DevelopmentAuthority reported in (2010) 7 SCC 129 of the Supreme Court wascited to contend that in the case of acquisition if it is for thebenefit of general public, then the provision of adequate https://hcservices.ecourts.gov.in/hcservices/ compensation is enough to reward the land owner. The followingpassages found in paragraphs 151 and 153(1) were relied upon by theState:"151.There are several avenues for providingrehabilitation and economic security to landlosers.They can be by way of offering employment, allotmentof alternative lands, providing housing or houseplots, providing safe investment opportunities forthe compensation amount to generate a stable income,or providing a permanent regular income by way ofannuities. The nature of benefits to the landloserscan vary depending upon the nature of theacquisition. For this limited purpose, theacquisitions can be conveniently divided into threebroad categories:(i) Acquisitions for the benefit of the generalpublic or in national interest: This will includeacquisitions for roads, bridges, water supplyprojects, power projects, defence establishments,residential colonies for rehabilitation of victimsof natural calamities.(ii) Acquisitions for economic development andindustrial growth: This will include acquisitionsfor industrial layouts/zones, corporations ownedor controlled by the State, expansion of existingindustries, and setting up special economic zones.(iii) Acquisitions for planned development ofurban areas: This will include acquisitions forformation of residential layouts and constructionof apartment blocks, for allotment to urban middleclass and urban poor, rural poor, etc.153.1.In acquisitions of the first kind (for benefitof general public or in national interest) thequestion of providing any benefit other than what ispresently provided in the Land Acquisition Act, 1894may not be feasible. The State should however ensurethat the landloser gets reasonable compensationpromptly at the time of dispossession, so that he canmake alternative arrangements for his rehabilitationand survival."45.In Jai Narain v. Union of India reported in (1996) 1 SCC9, the Supreme Court dealt with the acquisition of land forsewerage treatment plant was needed and hence urgency clauseinvoked and invoking the clause was not illegal. In that context,the Supreme Court held in paragraph 5 which is as follows:5.The first contention raised by the learned counsel isbased on the language of Section 4 of the Act. The https://hcservices.ecourts.gov.in/hcservices/ power under Section 4 of the Act can be exercised whenit appears to the Government that the “land in anylocality is needed or is likely to be needed for anypublic purpose”. It is no doubt correct that theexpression “is needed” indicates the existing needwhereas the expression “is likely to be needed” refersto the future need. When the latter expression is usedin the notification under Section 4 of the Act it maybe suggestive of the fact that there may not beemergency to acquire the land, but the question ofurgency cannot be determined solely by the expressionsused in the notification under Section 4 of the Act.The emergency must be reflected in the need of theacquisition. The existence of urgency is a matter whichis entirely based on the subjective satisfaction of theGovernment. The courts do not interfere unless thereasons given are wholly irrelevant and there is noapplication of mind. When a notification under Section4 of the Act uses the expression “is likely to beneeded” it may be necessary, in a given case, toexamine the records or the attendant circumstances tosatisfy that there was material before the Governmentjustifying the order under Section 17, dispensing withthe provisions of Section 5-A of the Act. If the publicpurpose on the face of it shows that the land is neededurgently, that by itself is a relevant circumstance forjustifying the action under Section 17(4) of the Act.This Court in State of U.P. v. Pista Devi2 — whereurgency provisions were invoked to acquire the land forhousing schemes — held as under: (SCC p.257, para 5)“In the circumstances of the case it cannot besaid that the decision of the State Government inresorting to Section 17(1) of the Act wasunwarranted. The provision of housingaccommodation in these days has become a matter ofnational urgency. We may take judicial notice ofthis fact. Now it is difficult to hold that in thecase of proceedings relating to acquisition ofland for providing house sites it is unnecessaryto invoke Section 17(1) of the Act and to dispensewith the compliance with Section 5-A of the Act.”46.In Chameli Singh v. State of Uttar Pradesh reported in(1996) 2 SCC 549, the Supreme Court has held that right toallotment of houses is a fundamental right and hence urgency clausecan be invoked. In paragraph 4, it was observed as follows:"4..... Right to social and economic justice conjointlycommingles with right to shelter as an inseparablecomponent for meaningful right to life. It wastherefore, held that right to residence and settlementis a fundamental right under Article 19(1)(e) and it isa facet of inseparable meaningful right to life under https://hcservices.ecourts.gov.in/hcservices/ Article 21. Food, shelter and clothing are minimalhuman rights. The State has undertaken as its economicpolicy planned development of massive housing schemes.The right to allotment of houses constructed by theHousing Board to the weaker sections, lower incomegroup people under Lower Income Group Scheme was heldto be a constitutional strategy, an economic programmeundertaken by the State and that the weaker sectionsare entitled to allotment as per the scheme."47.In Nand Kishore Gupta v. State of Uttar Pradesh reportedin (2010) 10 SCC 282, the Supreme Court found that huge landrequired for project of construction of Express highway andindustrial township Project lingering in litigation. The delay hadalready led to whopping escalation. If 5A enquiry is followed, itwould have further escalated cost. It was waste of time anddispensation of 5A justified.48.In Kishan Das v. State of Uttar Pradesh reported in(1995) 6 SCC 240, the Supreme Court found that possession was takenin 1976 by invoking urgency clause. Construction completed. Undercircumstances court cannot go into question of urgency and exerciseof power under Section 17(4) as it is belated.49.In Rajasthan Housing Board v. Shri Kishan, reported in(1993) 2 SCC 84, the Supreme Court found that invocation of Section17(4) was based on subjective satisfaction of the Government andthe Court cannot weigh the material as an appellate authority.Hence it is necessary to refer to paragraph 14 of the judgmentwhich is as follows:"14.Shri Thakur further argued that the constructionof houses by Housing Board is not of such urgency asto call for the invocation of the said power. We arenot satisfied. Firstly, on this question the decisionof the Rajasthan High Court is against the writpetitioners. The learned Single Judge negatived it aswell as the Division Bench following the opinion ofthe third Judge. Secondly, we are satisfied that therewas material before the Government in this case uponwhich it could have and did form the requisite opinionthat it was a case calling for exercise of power underSection 17(4). The learned Single Judge has referredto the material upon which the Government had formedthe said opinion. The material placed before the Courtdisclosed that the Government found, on dueverification, that there was an acute scarcity of landand there was heavy pressure for construction ofhouses for weaker sections and middle income grouppeople; that the Housing Board had obtained a loan ofRs 16 crores under a time-bound programme to constructand utilise the said amount by March 31, 1983; that inthe circumstances the Government was satisfied thatunless possession was taken immediately, and the https://hcservices.ecourts.gov.in/hcservices/ Housing Board permitted to proceed with theconstruction, the Board will not be able to adhere tothe time-bound programme. In addition to the saidfact, the Division Bench referred to certain othermaterial also upon which the Government had formed thesaid satisfaction viz., that in view of the time-boundprogramme stipulated by the lender, HUDCO, the Boardhad already appointed a large number of engineers andother subordinate staff for carrying out the said workand that holding an inquiry under Section 5-A wouldhave resulted in uncalled for delay endangering theentire scheme and time-schedule of the Housing Board.If must be remembered that the satisfaction underSection 17(4) is a subjective one and that so long asthere is material upon which the Government could haveformed the said satisfaction fairly, the Court wouldnot interfere nor would it examine the material as anappellate authority. This is the principle affirmed bydecisions of this Court not under Section 17(4) butalso generally with respect to subjectivesatisfaction."50.In Bhagat Singh v. State of Uttar Pradesh reported in(1999) 2 SCC 384, the Supreme Court did not find fault with theinvocation of Section 17(4) and in paragraph 10, it was observed asfollows:"10.In our view, the subjective satisfaction fordispensing with the inquiry under Section 5-A is basedon sufficient material and cannot be faulted. Thephotographs as to the filthy state of the presentmandi with garbage and stray cattle and pigs show thatthe place is so loathsome that it will be precariousand perhaps hazardous to store vegetables orfoodgrains in the existing market. We are, therefore,of the view that the urgency clause was rightlyinvoked by the Government. There are also enoughprecedents in connection with acquisition of land formarkets where Section 5-A has been dispensed with andsuch action was upheld."51.The decision in Union of India v. Praveen Gupta reportedin (1997) 9 SCC 78 was heavily relied upon by the State to contendthat the urgency clause has been properly invoked and in suchmatter, the interference from Courts are uncalled for. Reliance wasplaced upon the following passages found in paragraphs 7,9,10 and11 of the judgment, which are as follows:"7.Shri Sanghi, learned Senior Counsel has pointed outthat there is no real urgency in this matter and therespondents could have been given an opportunity tocontend that land is not needed for any publicpurpose. In support thereof, he placed strong relianceon the judgments in Narayan Govind Gavate v. State of https://hcservices.ecourts.gov.in/hcservices/ Maharashtra1; Dora Phalauli v. State of Punjab2 andState of Punjab v. Gurdial Singh3. The decision inNarayan Govind case1, has been distinguished by thisCourt in several cases. In the light of the ratio in acatena of decisions, this Court has consistently heldthat acquisition of the property for the planneddevelopment of the housing accommodation is urgent foracquisition and, therefore, dispensing with theenquiry under Section 5-A, exercising power underSection 17(4) has been held to be valid. It is truethat in Dora Phalauli2 and Gurdial Singh3 cases, thetwo-Judge Bench of this Court in each of the casesheld that enquiry under Section 5-A may not bedispensed with in a cavalier manner denying theopportunity to file the objections, unless realurgency is shown. Each case has to be considered onits own facts. The very object of enquiry underSection 5-A is whether the land proposed to beacquired is needed or is likely to be needed for thepublic purpose mentioned in the notification andwhether any other suitable land other than theacquired land is needed for the said public purpose.In this case, the entire land in two villages wasacquired. It is seen that timber business is beingcarried on in the walled city of Old Delhi. It hasbecome a source of traffic congestion and that itrequires to be shifted urgently from the existingplace to relieve the congestion by acquiring theconcerned land for the public purpose, namely,establishment of timber depots. It is true that amention was also made that unauthorised constructionhas been made in the area proposed to be acquired. Ifthe enquiry was conducted, delay would defeat the verypublic purpose of acquisition for shifting of timberbusiness from the walled city and establishment of thetimber depots outside the walled city. Therefore, theurgency mentioned in exercising the power underSection 4(1) was justified. Shri Goswami, learnedSenior Counsel for the Union of India, has relied uponthe judgment of this Court in Jai Narain v. Union ofIndia4. It is true, as pointed out by Shri Sanghi,that the acquisition in this reported decision wasmade for the establishment of sewerage plant as perthe direction of this Court and, therefore, there wasurgency......9.It is now settled legal position that decision onurgency is an administrative decision and is a matterof subjective satisfaction of the appropriateGovernment on the basis of the material available onrecord. Therefore, there was no need to pass anyreasoned order to reach the conclusion that there isurgency so as to dispense with the enquiry underSection 5-A in exercise of power under Section 17 https://hcservices.ecourts.gov.in/hcservices/ (4).....10....The language of the notification is notconclusive but the Court is required to consider thematerial whether there is any urgency to exercise thepower under Section 17(4) of the Act. The same viewwas taken by this Court in Jai Narain case4 referredto earlier.11.Accordingly, we are of the view that mere mentionin the notification that the land is likely to beneeded for the public purpose does not take away thepower of the appropriate Government to exercise thepower of urgency clause under Section 17(4)."52.A journey into the various decisions cited at the barthe following propositions of law will emerge:a)A notice under Section 5A is a valuable rightfor a land owner.b)The notice under Section 5A was contemplatednot only as part of principles of natural justice butalso part of fair procedure in commensurate with Article300A of the Constitution.c)Mere notification either under Sections 17(1)or 17(2) by itself will not result in the dispensingwith the enquiry under Section 5A. There must be anorder independently to that effect must be issued.d)If the State do not justify the dispensationof the enquiry by producing materials in the file thenthe notification is not valid.e)The dispensation of the enquiry under Section5A can be attacked only when there was non applicationof mind or if it is visited with mala fides. f)The lethargy of the officials or unexplaineddelay can be a good ground for interfering with an orderunder Section 17(4) of the Land Acquisition Act.53.In the light of the above precedents, it has to be seenthat the respondent State having gone to the Supreme Courtchallenging Section 133 Cr.P.C proceedings contending that it was apublic road, ought not to have invoked the Land Acquisition Actproceedings without a final determination of the matter by theSupreme Court. This is especially for the reason that if ultimatelythe State succeeds before the Supreme Court, the case for acquiringthe lands will become an academic issue. Further after havingchallenged the order passed by this court in the criminal revisionpetition, they cannot rely upon any portion of the order as asource or basis for invoking the reason for land acquisition. https://hcservices.ecourts.gov.in/hcservices/

54.The contention that there was real urgency involved alsocannot be accepted. The resolution passed by the Panchayat was ongeneral terms without any details and it was made as early as July,2008. Basing upon the resolution, the State cannot invoke theurgency clause having allowed the matter to linger for over thelast four years. Further the apprehension raised by the villagersas reflected in the resolution which formed the basis does notexist any more, especially after the interim order passed by theSupreme Court on 18.3.2011 throwing open the road for all timeswithout any hindrance. The files did not contain any material toinvoke the urgency clause. On the contrary, the correspondenceshowed that the District administration hardly had any clear dataregarding the survey number and the extent of the land that wassought to be acquired. The revised proposal was also sent withoutany field inspection though in the counter affidavit, a statementwas made contrary to the fact on hand. 55.Even assuming without admitting that there was reason toinvoke the urgency clause, i.e., the State amendment provides foremergency clause to be invoked by the District Collector on thereasons set out under Section 17(2) which includes acquisition ofthe land for a public road, that by itself cannot be a reason forinvoking the provisions under Section 17(2)(b) as inserted by theState amendment. Under the State amendment, the District Collectormust form an opinion that it becomes necessary to acquire theimmediate possession of any land for construction, extension andimprovement of any road. In the present case, the road is alreadyin existence. Therefore, it cannot be said that an opinion wasformed by the District Collector in this regard. On the other hand,the State Government did not issue any notification under Section17(2) either as per the Central Act or under the State amendmentinvoking the emergency clause. But along with the notificationunder section 17(1), the Section 17(4) was invoked by the Statedispensing with the enquiry under Section 5A.56.As can be seen from the long line of decisions, that theurgency clause found under Section 17(1) cannot be equated with theemergency clause set out under Section 17(2) read with Section 17(4). Therefore, the attempt by the learned Advocate General to relyupon the State amendment under Section 17(2) for justifying theimpugned order is misconceived and not warranted under the facts ofthis case. Since in the impugned notification, the State Governmenthad not referred to the application of Section 17(2), whichinvolves certain mandatory conditions precedent, but it had onlyreferred to Section 17(1) and there being no real urgency ininvoking the clause to dispense with the valuable right of the landowner under Section 5A is wholly illegal and that the order isliable to be set aside on this ground also. 57.The impugned order of the Government had showed an unduehaste, lethargy and non application of mind. The respondent Statehad not given any valid reason for dispensing with the enquiryunder Section 5A. This is especially in the context that theythemselves were not sure about the extent of land to be acquired. https://hcservices.ecourts.gov.in/hcservices/ They had also not inspected the property in question as per theirown admission. In the context of the order passed by the SupremeCourt, dated 18.3.2011, even the so-called urgency or emergencyprovision under Sections 17(1) or 17(2) did not arise. Theapprehension raised by the petitioner Estate that keeping open theroad for all times for all people including vehicles may causeprejudice to them cannot be said to be wholly unreasonable orunjustified. In any event if only they were heard on this questionand thereafter the Government had decided the matter, that wouldhave allayed the fears expressed by the Estate. 58.A perusal of the pleadings and the original file clearlyshowed that there was an undue delay, which denies the State theinvocation of urgency clause. There was total non application ofmind on the part of the respondent State in issuing the impugnednotification. Though in this case the alleged mala fide are notattributed against any particular person in the Government,certainly there is malice in law as set out above. 59.In view of the above, this court has no hesitation toset aside the impugned notification. Accordingly, the entirenotification in G.O.Ms.No.114, Rural Development and Panchayat RajDepartment, dated 31.12.2010 stands set aside. The writ petitionwill stand allowed. However, there will be no order as to costs.Consequently, connected miscellaneous petitions stand closed.Sd/-Asst. Registrar//true copy//Sub Asst.RegistrarvvkTo1.The Principal Secretary to the Government, Rural Development & Panchayat Raj Department, State of Tamil Nadu, Secretariat, Chennai-9.2.The District Collector, The Nilgiris District, Udhagamandalam.3.The Revenue Divisional Officer, Connoor.1 cc to Mr.A.Navaneethakrishnan, Advocate, Sr.No.243051 cc to Government Pleader, Sr.No.24662,24270 ORDER IN W.P.NO.1497 of 2011MG {CO}TP/20.4.2011.