The CommissionerCorporation of Chennai v. The Chief Engineer,Buildings & Bridges,Public Information Officer,Corporation of Chennai, Rippon Buildings

G. Ganapathy ..Petitioner in WP.Nos.17786 &16552/09J. Raviraj ..Petitioner in WP.No.16792/09Murali Ramanathan ..Petitioner in WP.No.16793/09M/s. Ani Constructions (P) Ltd.,rep. by its Authorised agent,Mr. M. Subaiya,Cenotaph Road,Chennai-18. ..Petitioner in WP.No.29461/08D. Navin ..Petitioner in WP.No.29453/08K. Prabhuram ..Petitioner in WP.No.29454/08-Vs-1. C.K.Ramachandran2. Rajeev Gopalakrishnan ..2nd Respondent in WA.Nos. 815, 821/093. V.Sridhar ..3rd Respondent in WA.No. 816/094. K.L.Palaniappan5. V.Srikanth rep.by his POA G.K.Vaidyanathan6. Mrs.Rekha Lakshman rep.by her Power of Attorney Agent G.L.Srinivasan7. State of Tamil Nadu rep.by its Principal Secretary to Government Municipal Administration and Water Supply Department (MC1) Government of Tamil Nadu Fort St.George, Chennai 600 009.8. The Tahsildar Mylapore-Triplicane Taluk Chennai District..Respondents 1 to 8 in Chennai 600 028 WA.No.825/09 https://hcservices.ecourts.gov.in/hcservices/ A.G. Rohira ..1st Respondent in WA.Nos.826 & 815/091. M. Raghuraman 2. R. Mahalakshmi ..1st & 2nd Respondents in WA.Nos. 827 & 816/09C.K. Ramasamy ..1st Respondent in WA.Nos.828 & 821/09Srinivas Theatres (P) Ltd.,rep. by Director G.V. Ramakrishnan,No.8/6, Saradambal Street, ..1st Respondent in WA.Nos.829T.Nagar, Chennai-17. & 818/09R. Shanmugam ..1st Respondent in WA.Nos.830 & 820/09R. Jambulingam ..1st Respondent in WA.No.831/09G. Ganapathy ..1st Respondent in WA.Nos.832 & 817/09 1. C.K. Ramachandran2. Rajeev Gopalakrishnan3. V.Sridhar4. K.L. Palaniappan5. V. Srikanth ..Respondents 1 to 6 in WA.No.814/091. Gunalakshmi 2. Ravi Raj3. Sumathi Arul ..Respondents 1 to 3 in WA.No.819/09State of Tamil Nadu rep. by itsPrincipal Secretary to Government of Tamil Nadu,Municipal Administration and Water Supply Department (MC-1)Government of Tamil Nadu,Fort St.George,Chennai-600 009. ..2nd Respondent in WA.Nos.826, 828, 829, 830, 831, 832/09 ..3rd Respondent in WA.No.827/09 https://hcservices.ecourts.gov.in/hcservices/ The Tahsildar,Mylapore-Triplicane TalukChennai District,Chennai-600 028. ..3rd Respondents in WA.Nos.826 & 828/09 ..4th Respondent in WA.No.827/09 ..2nd Respondent in WA.No.821/09The Corporation of ChennaiWorks Department,Rep. by The Commissioner,Rippon Building,Chennai-600 003. ..1st Respondent in WP.No.17786/09The Chennai Metropolitan Water Supply and Sewerage Board,Rep. by its Chairman, ..2nd Respondent in WP.Nos.17786,No.1, Pumping Station Road,16792, 16793, 16552/09Chennai-600 002.Rajesh Lakhoni ..3rd Respondent in WP.No.17786/09The Chief Engineer,Buildings & Bridges,Corporation of Chennai,Rippon Buildings, ..1st Respondent in WP.Nos.16792,Chennai-600 003. 16793 & 16552/09The Commissioner,Corporation of Chennai,Rippon Buildings, ..3rd Respondent in WP.Nos.16792,Chennai-600 003. 16793, 16552/09Gammon India Ltd.,rep. by its Site Engineer,Site Office,Turn Bulls Road, ..4th Respondent in WP.Nos.16792,Chennai-18. 16793, 16552/09 https://hcservices.ecourts.gov.in/hcservices/ State of Tamilnadu rep. byThe Principal Secretary to Government of Tamil Nadu,Municipal Administration and Water Supply Department, ..1st Respondent in WP.Nos.29461,Fort St. George, Chennai-9. 29453 & 29454/08The Chief Engineer,Buildings & Bridges,Public Information Officer,Corporation of Chennai, ..2nd Respondent in WP.Nos.29461,Chennai-600 003. 29453, 29454/08..2nd Respondent in WA.Nos.817, 818 & 820/09 ..4th Respondent in WA.No.819/09Appeals filed under Clause 15 of the Letters Patent against theorder dated 5.5.2009 made in W.P.Nos.26112, 24475, 24476, 25875,24569, 24570, 24560, 24554 of 2008.Writ Petitions filed under Article 226 of The Constitution ofIndia, Petition praying this Court to issue a Writ of (1) callingfor the records of the I respondent relating to its NotificationG.O.Ms.No.172 Municipal Administration and Water Supply Department(MC1) dated 09.09.2008 published in the Tamilnadu Government GazetteExtraordinary Part II Section 2, No.272 dated 09.09.2008 underSection 4(1) of the Land Acquisition Act read with section 17 (2) and(4) of the Land Acquisition Act and the declaration under Section 6of the Land Acquisition Act, G.O.Ms.No.184, Municipal Administrationand Water Supply Department (MC1) dated 24.09.2008 published in theTamil Nadu Government Gazette Extraordinary Part-II, Section 2,No.282, dated 24.09.2008, in so far they relate to may land measuringan area of 0384 Sq.ft in (a) R.S.No.3884-263, (newly subdivided asR.S.No.3884-318, Chennai District, in the name of Brookland ManorApartments, and undivided shares in the land measuring area of 0384Sq.ft in R.S.No.3884-264 (newly subdivided R.S.No.3884-319) in thenames of V. Srikanth and V. Sridhar comprised in “Brookland ManorApartments” Chennai District, Mylapore, Triplicane Taluk No.3,Mylapore Village owned and possessed by the petitioners comprised inOld Door No.3 and 4 New Door No.12 and 14 Turn Bulls Road, Nandanam,Chennai-35. (in W.P.No.26112/2008)(b) R.S.No.3884-260 (newly subdivided as R.S.No.3884-317),Chennai District, Mylapore - Triplicane Taluk No.3, Mylapore Villageowned and possessed by the petitioner comprised in Door.5/10, TurnBulls Road, Nandanam, Chennai - 600 035 and to quash the aforesaidnotification and aforesaid declaration (in W.P.No.24475/2008) https://hcservices.ecourts.gov.in/hcservices/ (c) in the name of the former owner M.R.Seshadri in so far asthey relate to the petitioner's land measuring an area of 0408 Sq.ftin R.S.No.3884-259 (newly subdivided as R.S.No.3884-316), ChennaiDistrict, Mylapore - Triplicane Taluk No.3, Mylapore Village, ownedand possessed by the petitioner comprised in Door No.6/8, Turn BullsRoad, Nandanam, Chennai-600 035 and to quash the aforesaidnotification and aforesaid declaration (in W.P.No.24476/2008)(d) in so far as the relative petitioner's land measuring anarea of 0480 Sq.ft in R.S.No.3884-256 (newly subdivided asR.S.No.3884-315) Chennai District, Mylapore - Triplicane Taluk No.3,Mylapore Village, owned and possessed by the petitioner comprised inDoor No.6/7, Turn Bulls Road, Nandanam, Chennai-600 035 and to quashthe aforesaid notification and aforesaid declaration (inW.P.No.25875/2008)W.P.Nos.24569/2008, 24570/2008, 24560/2008 & 24554/2008: Petitionspraying this Court be pleased to stay all further proceedingsincluding taking of possession pursuant to the Notification made inTamil Nadu Government Gazette Extraordinary No.272 dated 09.09.2008consequential Notification No.282 dated 24.09.2008 relating to landacquisition for fly over on Cenotaph Road, Chennai-18 respectively.Petition praying to this Court be please to issue a Writ of (1)Certiorari call for the records of the 1st Respondent culminating inthe order dated 20.08.2009 issued by the Corporation of Chennai,Works Department, Chennai and quash the same and consequently issuean appropriate directions directing the respondents to forbear fromharassing the petitioner in (W.P.No.17786/2009) (2) Mandamus directing the respondents/3rd respondent inW.P.No.16552/2009 to forbear from carrying on construction activityof the grade separator between Cenotaph Road and Turn Bulls Road insuch a manner as to affect motorable access of the petitioner to hisresidence and to immediately restore the storm water drainage systemto proper use (in W.P.Nos.16792/2009, 16793/2009 & 16552/2009)(3) Certiorari calling for the records of the 1st respondent inLand Acquisition proceedings to quash in Notification made thereonunder Section 4(1) and Section 6 of the Land Acquisition Act in TamilNadu Government Research Extraordinary No.272 dated 09.09.2008consequential Notification No.282 dated 24.09.2008 respectivelyrelating to land acquisition for flyover on Cenotaph Road,Chennai-600 018 (W.P.No.29461, 29453, 29454/2008 respectively) For Appellants in W.A.Nos.825 to :Mr.P.S.Raman832 of 2009Advocate General assisted by Mr.V.Bharathidasan https://hcservices.ecourts.gov.in/hcservices/ For Appellants in W.A.Nos.814 to:Mr.J.Raja Kalifullah821 of 2009 & on behalf of theGovernment PleaderState in W.A.Nos.825 to 832of 2009 & W.P.Nos.16552, 16792,16793 & 17786 of 2009For Petitioner in W.P.No.29461:Mr.K.Abudukumar of 2008 Rajarathinam For Petitioners in W.P.Nos. :Mr.S.Ashok Kumar 29453 & 29454 of 2008For Petitioners in W.P.Nos. :Mr.T.Mohan for16552, 16792, 16793 of 2009 M/s Vijayalakshmi RajarathinamFor Petitioner in W.P.No.:Mr.Srinivasan for17786 of 2009 M/s Vijayalakshmi RajarathinamFor 1st respondent in W.A.Nos. :Mr.V.T.Gopalan829, 830, 832, 817, 818 & 820 Senior Counsel forof 2009 Mr.K.Abudukumar RajarathinamFor 1st respondent in W.A.Nos. :Mr.K.V.Sanjeev Kumar826, 827, 828 & 831 of 2009For 4th respondent in WP.Nos.: Mr.Krishna Ravindran 16792 , 16793 & 16552/09JUDGMENTD.MURUGESAN, J. The writ appeals, at the instance of the Corporation of Chennaias well as the official respondents of the State, arise out of thecommon order passed by the learned single Judge dated 5.5.2009allowing Writ Petition Nos.26112 of 2008 etc., and the writ petitionsare at the instance of the land owners/persons interested in thelands sought to be acquired. As the grounds of challenge to the landacquisition proceedings in both the writ appeals and writ petitionsare common, they are disposed of by this judgment. 2. All the above writ appeals and writ petitions concern withthe notification made under Section 4(1) read with Section 17(2) ofthe Land Acquisition Act, 1894 in G.O.Ms.No.172, MunicipalAdministration and Water Supply (MC1) Department dated 9.9.2008 andpublished in the Tamil Nadu Government Gazette Extraordinary Part IIon the same date as well as the declaration made under Section 6 of https://hcservices.ecourts.gov.in/hcservices/ the Land Acquisition Act, 1894 in G.O.Ms.No.184, MunicipalAdministration and Water Supply (MC1) Department dated 24.9.08 andpublished in the Tamil Nadu Government Gazette Extraordinary Part IIon the same date.3. In order to decongest and regulate the heavy flow of traffic,the Government through the Corporation of Chennai are implementingschemes for construction of flyovers in the roads which are prone toheavy traffic. As a part of such initiative, studies were conductedand a proposal was mooted for construction of a flyover at thejunction of Pasumpon Muthuramalinga Thevar Salai and Turn Bulls Roadin the year 1997. The said proposal could not be implemented forcertain reasons. Over the period, a steady increase in volume oftraffic during the peak hours was noticed at Cenotaph Road followedby Kotturpuram Road, which is also known as Turn Bulls Road.Therefore, the services of the Division of Traffic Engineering of theCollege of Engineering, Anna University and M/s L&T Ramboll weresought. Study reports were submitted to the Government accordingly.The earlier proposal to construct a flyover at the junction ofPasumpon Muthuramalinga Thevar Salai and Turn Bulls Road was alsostudied by Anna University as well as by M/s L&T Ramboll and thereport suggested for construction of a flyover at the junction ofCenotaph Road and Turn Bulls Road. The road on which the flyover wasproposed to be constructed belongs to the Corporation. While suchflyover is constructed, the Corporation is also obligated to provideparallel service lanes on both sides of the road for free flow oftraffic as well as to provide access to the adjacent residents. Inpursuance of the report, the Government decided to construct aflyover along Cenotaph Road and Turn Bulls Road. In order to provideservice lanes, certain lands were sought to be acquired urgently.Hence the Government issued notification under Section 4(1) of theLand Acquisition Act, 1894 (for short, "the Act") for acquisition ofthe lands. While doing so, the Government decided to invoke theurgency clause and accordingly, issued the notification under Section17(2) of the Act for acquisition of an extent of 18,225 sq.ft., or 7grounds 1425 sq.ft., of land in as many as 25 survey numbers. By thesame notification, the Government also notified the dispensation ofenquiry under Section 5-A of the Act in exercise of the power underSection 17(4) of the Act. The said notifications came to bechallenged by the writ petitioners before the learned single Judgewho, by order dated 5.5.2009, quashed the notifications on the groundthat there was no justification for invoking the urgency clause.Aggrieved by the said order, the Corporation of Chennai and theGovernment have preferred these writ appeals. Some of the writpetitions which were pending before the learned single Judge are alsotagged along with the appeals at the request of all the partiesconcerned. 4. We heard Mr.P.S.Raman, learned Advocate General withMr.V.Bharathidasan, learned standing counsel for the Corporation of https://hcservices.ecourts.gov.in/hcservices/ Chennai, Mr.J.Raja Kalifullah, learned Government Pleader for theofficial respondents of the State, Mr.V.T.Gopalan, learned seniorcounsel with K.Abudukumar Rajarathinam, Mr.S.Ashok Kumar,Mr.K.Sanjeev Kumar, Mr.Srinivasan and Mr.T.Mohan for the respectiveland owners/persons interested.5. The bone of contention in the challenge to the notificationsis that inasmuch as the proposal for construction of the flyover wasmade in the year 1997 and there being no progress in the saidproposal till 2008, there is absolutely no reason to dispense withthe valuable rights of the land owners to make their objections inthe enquiry under Section 5-A of the Act. 6. Mr.V.T.Gopalan, learned senior counsel for the land ownerswould submit that the right under Section 5-A of the Act to makeobjections is a valuable right and the same cannot be dispensed withexcept for valid reasons. He would further submit that there istotal non-application of mind on the part of the appropriateGovernment in invoking the urgency clause under Section 17 of theAct. Inasmuch as the proposal mooted in the year 1997 was not giveneffect to, the same would only indicate that there was no urgency forthe Government to invoke the urgency clause. In such event, thenotifications are bad. In support of the said contention, thelearned senior counsel would heavily rely upon the judgments of theSupreme Court in Essco Fabs Private Limited and another v. State ofHaryana and another, 2008 (14) Scale 495 and in Union of India andothers v. Mukesh Hans, (2004) 8 SCC 14. He would also submit that theGovernment issued G.O.Ms.No.1895, Revenue dated 27.8.90 stipulatingintroduction of Programme Evaluation Review Technique Chart (forshort, "the PERT Chart ") for land acquisition under the emergencyclause and by that chart, the activities under land acquisition casesunder urgency clause are indicated right from preliminary inspectionby Tahsildar and conduct of preliminary enquiry upto the submissionof final check memo to the Collector for completion of the processwithin the stipulated period of 360 days. Nevertheless, theGovernment had taken its own time from the year 1998 and therefore itwas not well within its discretion to invoke the urgency clause bydispensing with the valuable rights of the land owners for makingobjections and being heard in the enquiry under Section 5-A of theAct. 7. Mr.K.Abudukumar Rajarathinam, learned counsel appearing forsome land owners would further add that inasmuch as the notificationswere issued under Section 17(2) of the Act, which relates to theinvocation of emergency provision owing to sudden change in thechannel of any navigable river or other unforeseen emergency, thepresent notifications are bad, as the urgency clause has been invokedfor the purpose of formation of service lanes. In the given case, ifat all the Government was satisfied to invoke the urgency clause,they ought to have invoked the provisions of Section 17(1) of the Act https://hcservices.ecourts.gov.in/hcservices/ alone. He would also submit that there should be two separatenotifications, one under Section 17(1) and another under Section 17(4) of the Act and there cannot be simultaneous notifications. Hencethe notifications are liable to be quashed. 8. The other respective counsels also adopted the arguments ofMr.V.T.Gopalan and Mr.K.Abudukumar Rajarathinam.9. Mr.P.S.Raman, learned Advocate General would submit that thesatisfaction of the Government to invoke the urgency clause is speltout not only in the notifications, but also is borne out by records.Though the proposal to construct the flyover was mooted in the year1998-99, it did not materialise and only after study of traffic flowon the roads in question, such proposal was again mooted in the year2008, resulting in the Government invoking the urgency clause. Asthe flyover is constructed above the road that vests in theCorporation, the acquisition of land for the formation of servicelanes was necessitated. For a distance of a little over half akilometre of the constructed bridge, it became necessary to providethe parallel service lanes on both the sides of the road. For thesaid purpose, approximately 18,225 sq.ft., of land alone is sought tobe acquired and unless service lanes are provided immediately, evenif the construction of flyover is completed, it would not serve thepurpose. Laying of parallel service lanes cannot be dispensed with,as it is absolutely necessary to the adjoining neighbours includingthe persons objecting to the acquisition apart from free flow ofregular traffic. Inasmuch as the records also disclose the reasonfor invoking the urgency clause, the notifications cannot bequestioned on the ground of want of satisfaction by the Government.He would further submit that in any case, the Court can take judicialnotice of nature of scheme for invocation of the urgency clause. Thescheme being for construction of flyover to decongest the heavytraffic, the construction must be completed without any delay, asotherwise such delay would cause inconvenience to the road users. Hewould also submit that only the compound walls, a toilet, pump rooms,generator rooms and in one case, an open dining set up by the ownerare to be demolished. Apart from this, in one case, a portion of theshop of the building constructed without permission and unauthorisedis to be demolished. He would therefore submit that the Governmentwas within their powers to invoke urgency clause on due satisfactionwhich is borne out by records. 10. We have carefully considered the rival contentions. As faras the requirement of the land for public purpose is concerned, theappropriate Government is the best judge. The power of eminentdomain to aquire any land under the provisions of the Act is by nowwell recognised. Equally relevant is the right of the owners of theland by virtue of Article 300-A of the Constitution of India, thatthey shall not be deprived of their land except by the authoriy oflaw such as the procedures contemplated under the Act. One of the https://hcservices.ecourts.gov.in/hcservices/ valuable rights for the owners is to raise objections to thenotification issued under Section 4(1) of the Act opposing theacquisition on justifiable grounds. It is a general rule that beforea declaration under Section 6 is made, enquiry under Section 5-A mustbe held. In Union of India and others v. Mukesh Hans (2004) 8 SCC14, the Supreme Court while considering the objects of Section 5-Aof the Act has observed that the limited right given to aowner/person interested in the land under Section 5-A of the Act toobject to the acquisition proceedings is not an empty formality andis a substantive right which cannot be taken away, but for good andvalid reasons. As the right of the Government in exercise of thepower of eminent domain to acquire the land cannot be questionedexcept for the violation of the provisions of the Act or that suchaction is malafide, unreasonable or colourable exercise of power, anenquiry under Section 5-A of the Act is the only safeguard for theland owners to oppose the land acquisition on valid grounds. To thisextent, the submission of the respective learned counsel for the landowners must be accepted. 11. However, the said right to raise objections under Section 5-A is not absolute in all cases, as there are certain exceptions. Theexception to the provision of Section 5-A is Section 17 of the Act.For better understanding, the relevant provisions of Section 17 ofthe Act can be extracted hereunder:-17.Special powers in cases of urgency.--(1)In cases of urgency, whenever the appropriateGovernment so directs, the Collector, though nosuch award has been made, may, on the expirationof fifteen days from the publication of the noticementioned in section 9, sub-section (1), takepossession of any land needed for public purpose.Such land shall thereupon vest absolutely in theGovernment free from all encumbrances.(2) Whenever, owing to any sudden change inthe channel of any navigable river or otherunforeseen emergency, it becomes necessary for anyRailway Administration to acquire the immediatepossession of any land for the maintenance oftheir traffic or for the purpose of making thereona river-side or ghat station, or of providingconvenient connection with or access to any suchstation, or the appropriate Government considersit necessary to acquire the immediate possessionof any land for the purpose of maintaining anystructure or system pertaining to irrigation,water supply, drainage, road communication orelectricity, the Collector may, immediately afterthe publication of the notice mentioned in sub- https://hcservices.ecourts.gov.in/hcservices/ section (1) and with the previous sanction of theappropriate Government, enter upon and takepossession 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 buildingunder this sub-section without giving to theoccupier thereof at least forty-eight hours'notice of his intention so to do, or such longernotice as may be reasonably sufficient to enablesuch occupier to remove his movable property fromsuch building without unnecessary inconvenience. (3).....(3-A)....(3-B)....(4) In the case of any land to which, in theopinion of the appropriate Government, theprovisions of sub-section (1) or sub-section (2)are applicable, the appropriate Government maydirect that the provisions of section 5-A shallnot apply, and, if it does so direct, adeclaration may be made under section 6 in respectof the land at any time after the date of thepublication of the notification under section 4,sub-section (1)."The object of Section 17 appears to be that when the Governmentexercises the urgency power either under Section 17(1) or underSection 17(2), they form the opinion that the land is needed forpublic purpose and possession of the land must be taken immediately.In exercise of power under Section 17(1), in case of urgency,whenever the appropriate Government so directs, the Collector may, onthe expiration of fifteen days from the publication of the noticementioned in section 9, sub-section (1), take possession of any landneeded for public purpose. Such land shall thereupon vest absolutelyin the Government free from all encumbrances. Section 17(2) relatesto the power to invoke urgency clause owing to any sudden change inthe channel of any navigable river or other unforeseen emergency,etc. By virtue of Section 17(4), enquiry under Section 5-A may bedispensed with, if in the opinion of the appropriate Government theprovisions of sub-section (1) or sub-section (2) are applicable, tosuch acquisition proceedings. The power of the Government forinvoking the urgency clause under Section 17 has been upheld by the https://hcservices.ecourts.gov.in/hcservices/ Supreme Court in the judgment in Ishwarlal Girdharlal Joshi etc., v.State of Gujarat and another, AIR 1968 SC 870.12. The power under sub-sections (1) & (2) of Section 17 relatesto the directions by the appropriate Government to the Collectors totake possession of the land. If the Government invokes the provisionsof either Section 17(1) or Section 17(2) and in the opinion theenquiry under Section 5-A should be dispensed with, it can do sounder Section 17(4). A combined reading of Section 17(1), (2) & (4)would show that the Government should only satisfy itself as to theinvocation of the provisions. 13. While dealing with the power of the Government to invokethe urgency clause under Section 17(1) or unforeseen emergency underSection 17(2) and the invocation of power under Section 17(4) todispense with the enquiry under Section 5-A of the Act, the SupremeCourt in Nandeshwar Prasad and another v. State of U.P., and others,(1964) 3 SCR 425. In that case, the Supreme Court had observed asfollows:-"It will be seen that S.17(1) gives power tothe Government to direct the Collector, though noaward has been made under S.11, to take possessionof any waste or arable land needed for publicpurpose and such land thereupon vests absolutelyin the Government free from all encumbrances. Ifaction is taken under S.17(1), taking possessionand vesting which are provided in S.16 after theaward under S.11 are accelerated and can takeplace fifteen days after the publication of thenotice under S.9. Then comes S.17(4) whichprovides that in case of any land to which theprovisions of sub-sec.(1) are applicable, theGovernment may direct that the provisions of S.5-Ashall not apply and if it does so direct, adeclaration may be made under S.6 in respect ofthe land at any time after the publication of thenotification under S.4(1). It will be seen that itis not necessary even where the Government makes adirection under S.17(1) that it should also make adirection under S.17(4). If the Government makes adirection only under S.17(1) the procedure underS.5-A would still have to be followed before anotification under S.6 is issued, though afterthat procedure has been followed and anotification under S.6 is issued the Collectorgets the power to take possession of the landafter the notice under S.9 without waiting for theaward and on such taking possession the land shallvest absolutely in Government free from all https://hcservices.ecourts.gov.in/hcservices/ encumbrances. It is only when the Government alsomakes a declaration under S.17(4) that it becomesunnecessary to take action under S.5-A and make areport thereunder. It may be that generally wherean order is made under S.17(1), an order underS.17(4) is also passed; but in law it is notnecessary that this should be so. It will also beseen that under the Land Acquisition Act an orderunder S.17(1) or S.17(4) can only be passed withrespect to waste or arable land and it cannot bepassed with respect to land which is not waste orarable and on which buildings stand."14. Placing reliance on the above judgment, the Supreme Court inEssco Fabs Private Limited v. State of Haryana, 2008 (14) Scale 495has observed in paragraph-33 as follows:-" From the above observations, it is clearthat even in cases falling under or covered bysub-sections (1) and (2) of Section 17 of the Actand the Government intends to acquire land incases of 'urgency' or 'unforeseen emergency', itis still required to follow procedure underSection 5-A of the Act before issuance of finalnotification under Section 6 of the Act. It isonly when the Government also makes a declarationunder sub-section (4) of Section 17 that itbecomes unnecessary to take recourse to procedureunder Section 5-A of the Act."15. A similar question came up for consideration before theSupreme Court in Union of India v. Mukesh Hans, (2004) 8 SCC 14 andthe Supreme Court had observed as follows:-"A careful perusal of this provision which isan exception to the normal mode of acquisitioncontemplated under the Act shows mere existence ofurgency or unforeseen emergency though is acondition precedent for invoking Section 17(4)that by itself is not sufficient to direct thedispensation of 5A inquiry. It requires an opinionto be formed by the concerned government thatalong with the existence of such urgency orunforeseen emergency there is also a need fordispensing with 5A inquiry which indicates thatthe Legislature intended that the appropriategovernment to apply its mind before dispensingwith 5A inquiry. It also indicates the mereexistence of an urgency under Section 17(1) orunforeseen emergency under Section 17(2) would not https://hcservices.ecourts.gov.in/hcservices/ by themselves be sufficient for dispensing with 5Ainquiry. If that was not the intention of theLegislature then the latter part of sub-section(4) of Section 17 would not have been necessaryand the Legislature in Section 17(1) and (2)itself could have incorporated that in suchsituation of existence of urgency or unforeseenemergency automatically 5A inquiry will bedispensed with. But then that is not language ofthe Section which in our opinion requires theappropriate Government to further consider theneed for dispensing with 5A 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 5A inquiry does not meanthat in every case when there is an urgencycontemplated under Section 17(1) and unforeseenemergency contemplated under Section 17(2) existsthat by itself would not contain the need fordispensing with 5A inquiry. It is possible in agiven case the urgency noticed by the appropriateGovernment under Section 17(1) or the unforeseenemergency under Section 17(2) itself may be ofsuch degree that it could require the appropriateGovernment on that very basis to dispense with theinquiry under Section 5A but then there is a needfor application of mind by the appropriateGovernment that such an urgency for dispensationof the 5A inquiry is inherent in the two types ofurgencies contemplated under Section 17(1) and (2)of the Act."In fact the above provision also has been relied upon by the SupremeCourt in Essco Fabs case (supra) and ultimately, in paragraph-45, theSupreme Court had observed as follows:-"In our opinion, therefore, the contentionof learned counsel for the respondent authoritiesis not well founded and cannot be upheld that oncea case is covered by sub-section (1) or (2) ofSection 17 of the Act, sub-section (4) of Section17 would necessarily apply and there is noquestion of holding inquiry or hearing objectionsunder Section 5A of the Act. Acceptance of suchcontention or upholding of this argument will makesub-section (4) of Section 17 totally otiose,redundant and nugatory." https://hcservices.ecourts.gov.in/hcservices/

16. A combined reading of the above three judgments would showthat whenever the Government invokes urgency clause under Section 17(1) or unforeseen emergency under Section 17(2), it can dispense withthe enquiry under Section 5-A of the Act by specifically invoking theprovisions of Section 17(4). The only requirement for the Governmentis that they should apply their mind and satisfy themselves for theinvocation of the urgency or unforeseen emergency, as the case maybe. This satisfaction need not necessarily be indicated in thenotification as such, as has been held by the Supreme Court inNandeshwar Prasad case (supra), as it would be sufficient if therecords borne out such satisfaction. 17. The law on the discretion of the Government to dispense withthe enquiry under Section 5-A being statutory in nature, it should beexercised on reasonable grounds and cannot lapse into arbitrarinessor caprice. The State authorities must have specific satisfactionbased on the relevant material, rule and genuine urgency existed andthat any invocation of the urgency clause would not defeat the verypurpose of the acquisition. The Court is bound to satisfy itself asto whether the discretion exercised by the Government could be testedon reasonableness and on application of mind to the situation thathas warranted for invocation of the clause. 18. How far the power of judicial review could be exercised isyet another question to be considered. As has been held by theSupreme Court in the judgment in Prathiba Nema and others v. Stateof M.P. and others (2003) 10 SCC 626, it would be unjust andinappropriate to strike down the notification on the basis of anebulous plea, in exercise of writ jurisdiction under Article 226 ofthe Constitution of India. In fact, in Union of India and others v.Krishan Lal Arneja and others, (2004) 8 SCC 453, the Supreme Courthas held that the opinion of the Government is entitled to greatweight unless it is vitiated by mala fide and colourable exercise ofpower. In the judgment in First Land Acquisition Collector and othersv. Nirodhi Prakash Gangoli and another, (2002) 4 SCC 160, the SupremeCourt has held that the decision of authority to dispense with theenquiry under Section 5-A and invoking urgency clause can bechallenged only on the ground of non-application of mind and malafides. In Nandeshwar Prasad and another v. State of U.P. andothers , (1964) 3 SCR 425, the Supreme Court has held that thereshould be application of mind to the facts of the case with specialreference to the concession of Section 5-A enquiry under the Act.Whether the discretion is exercised reasonably supported by materialsor not depends upon the facts of each case. 19. This takes us to the next question as to whether theGovernment had sufficient reason for dispensing with the enquiryunder Section 5-A in the given facts of the case. Thelearned counsel appearing for the Corporation of Chennai producedthe relevant files and we have perused the same. In terms of https://hcservices.ecourts.gov.in/hcservices/ sub-section (3-A) of Section 17 of the Act, the Collector shall,without prejudice to the provisions of sub-section 3, tenderpayment of 80% of compensation for such land as estimated byhim to the persons interested entitled thereto before takingpossession. By virtue of the above provision, a proposalemanated from the District Collector to the Government forsanction of payment of 80% of compensation in a sum ofRs.9,70,73,400/- for the total area of 18,225 sq.ft. of land tobe acquired. That was processed and inspection of theland in question was carried on by the Tahsildar concerned and inhis proceedings dated 22.4.2008, he also recommended for thesaid sanction of the amount. Thereafter, the Commissioner,Corporation of Chennai also sought permission from theDistrict Collector in his communication dated 22.4.2008for acquiring the land. Considering all the aboveaspects, the Government in G.O.Ms.No.120 dated 26.6.2008accorded approval apparently keeping in mind the urgencyclause. In all these correspondences, not only theTahsildar concerned, but also the Commissioner as well as theGovernment had referred to only the provisions of urgency clauseindicating the requirement to invoke the said provision. Finally anote was placed for invocation of the urgency clause. From the notefile, it is seen that though some attempts were made to negotiatewith the owners, it failed, thereby necessitating the invocation ofthe urgency clause. The learned single Judge, of course, by placingreliance on certain portions at pages 21, 59, 91 & 285 in FileNo.C.No.25235/MC!/2008 and pages 7, 9, 23 & 155 in FileNo.15820/MC1/2008, has held that there was no indication ofapplication of mind by the Government. In our considered view, thesaid reason cannot be accepted. In order to find out thesatisfaction of the appropriate Government to invoke the urgencyclause, the entire file must be taken into consideration. As we havealready noted, right from the proceedings dated 30.4.2008 of theSpecial Commissioner and Commissioner of Land Administration, it isseen that the Government had applied its mind to invoke the urgencyclause and therefore only recommended the sanction of 80% of thecompensation amount which is to be statutorily tendered whileinvoking the urgency clause and the subsequent proceedings alsoindicate that the Government by invoking the urgency clause not onlysanctioned the compensation amount, but also sanctioned the veryacquisition proposal as such. The permission was accorded by theGovernor keeping in mind the above background of the proceedings. Ifthe entire proceedings are read as a whole, the Court has tonecessarily accept the stand of the Government that there was aproper application of mind for invoking the urgency clause. As wehave already pointed out that such exercise of discretionary powercould be tested only on reasonableness or on mala fide grounds. Inthis case, the question of mala fide is not put in issue. The onlyground left open is the reasonableness. In fact, the appropriateGovernment need not pass a reasoned order to its satisfaction, as https://hcservices.ecourts.gov.in/hcservices/ such subjective satisfaction could be culled out from the records, ashas been held by the Supreme Court in Mohan Singh and others v.International Airports Authority of India and others, (1997) 9 SCC132. Hence, we are of the considered view that the opinion of theGovernment to invoke the urgency clause is supported by reasons andit cannot be termed to be as unreasonable or capricious. 20. We may also point out that the Government of Tamil Nadu hadbrought in an amendment known as "Land Acquisition (Tamil NaduAmendment) Act, 1948" inserting explanation to sub-section (1) ofSection 17 of the Act as well as amendment to sub-section (2) ofSection 17, which reads as follows:-"In Section 17 of the Land Acquisition Act,1894-- (a) to sub-section (1), the followingexplanation shall be added, namely:-"Explanation.--This sub-section shall applyto any waste or arable land, notwithstanding theexistence thereon of scattered trees or temporarystructures, such as, huts, pandals or sheds.".(b) in the first paragraph of sub-section(2)--(i) before the word "whenever" at thecommencement, the following shall be inserted,namely:--"In the following cases, that is to say --";(ii) the portion beginning with the word"whenever" and ending with the words "access toany such station" shall be lettered as clause (a)and after the clause as so lettered, the followingclause shall be inserted, namely:--(b) "Whenever in the opinion of theCollector, it becomes necessary to acquire theimmediate possession of any land"--(i) for the purpose of any library oreducational institution, or(ii) for the construction, extension orimprovement of -- https://hcservices.ecourts.gov.in/hcservices/ (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-operative Societies Act, 1932 (Madras Act VI of1932), or(C) any dwelling house for the poor, or(D) any irrigation tank, irrigation ordrainage channel or any well, or(E) any road".By that provision, the power conferred under Section 17(1) of the Actfor the appropriate Government to direct the Collector to takepossession shall apply to waste or arable land. An argument wasadvanced by Mr.Abudukumar Rajarathinam that the Government cannotinvoke the emergency provision of Section 17(2) in respect of theland in question, as the land is not waste or arable land and thatprovision relates to only invocation of urgency clause owing to anysudden change in the channel of any navigable river or otherunforeseen emergency. In our opinion, the said argument is totallymisconceived. Clause (b) of sub-section (2) of Section 17 insertedby State Amendment Act to the Central Act empowers the appropriateGovernment to take possession of the land among other purposes forthe construction of road also. Hence the invocation of the provisionsof Section 17(2) of the Act should be read in consonance with theTamil Nadu Amendment Act, which empowers the appropriate Governmentto invoke the said power under Section 17(2)(b) of the Act. In theinstant case, the impugned notification is issued under Section 4(1)read with Section 17(2) of the Act and in Section 17(2), theacquisition is not restricted only to waste or arable land.21. It was also argued that the proposal for construction offlyover was made in the year 1997 and that the urgency clause hasbeen invoked only in the year 2008. We may point out that the delayin the invocation of emergency provision by itself would not vitiatethe entire acquisition proceedings. On the given facts andcircumstances of the case, though a proposal was mooted in the year1997, the same did not materialise. Only after a detailed study wasconducted sometime during the year 2008, it came to be known to theGovernment as well as the Corporation of Chenai as to the heavyincrease of traffic on the roads in question. Hence reports werecalled for from Anna University and M/s L&T Ramboll and on the basisof the reports, the Corporation of Chennai decided to construct aflyover on its own road and only for the purpose of laying parallelservice lanes, had approached the Government for acquisition. https://hcservices.ecourts.gov.in/hcservices/ Reports were placed before the Government during the year 2008 and onsatisfaction the Government approved the proposal by sanctioning 80%of the amount to be tendered initially and thereafter, decided toinvoke the emergency provisions by dispensing with 5-A enquiry. Evenotherwise, if there is any delay in the initiation of proceedings,the period to notify the acquisition should be considered only afterthe reports of Anna University and M/s L&T Ramboll were received.(See the judgment in First Land Acquisition Collector and others v.Nirodhi Prakash Gangoli and another, (2002) 4 SCC 160.)22. That apart, the discretionary power to invoke the urgencyclause can be also covered from the nature of the scheme as such. Itis nobody's case that the roads in question namely, Cenotaph Road andTurn Bulls Road are not congested and are available for free flow oftraffic at any point of time. A detailed study by L&T Ramboll andAnna University shows that over the years, traffic on these roads hasincreased manifold necessitating construction of the flyover for thebenefit of road users. The Corporation is also obligated to providethe service lanes and for this purpose, it has to acquire the land.The construction of flyover cannot be delayed at any cost havingregard to the heavy flow of traffic in the area. The Court cantherefore take judicial note of the fact that by the very nature ofthe scheme, the appropriate Government would be justified to invokethe urgency clause. That apart, as has been rightly submitted byMr.P.S.Raman, in a situation like this, the owners of the land can beappropriately compensated and on that ground the entire acquisitioncould not be set aside. In this context, we may also refer to thejudgment of the Supreme Court in Ramniklal N.Bhutta and another v.State of Maharashtra and others, (1997) 1 SCC 134, where the SupremeCourt has observed in paragraph-10 as follows:-"10. Before parting with this case, we thinkit necessary to make a few observations relevantto land acquisition proceedings. Our country hasnow launched upon an ambitious programme of all-round economic advancement to make our economycompetitive in the world market. We are anxiousto attract foreign direct investment to themaximum extent. We propose to compete with Chinaeconomically. We wish to attain the pace ofprogress achieved by some of the Asian countries,referred to as "Asian tigers", e.g., South Korea,Taiwan and Singapore. It is, however, recognisedon all hands that the infrastructure necessaryfor sustaining such a pace of progress iswoefully lacking in our country. The means oftransportation, power and communications are indire need of substantial improvement, expansionand modernisation. These things very often callfor acquisition of land and that too without any https://hcservices.ecourts.gov.in/hcservices/ delay. It is, however, natural that in most ofthese cases, the persons affected challenge theacquisition proceedings in courts. Thesechallenges are generally in the shape of writpetitions filed in High Courts. Invariably, stayof acquisition is asked for and in some cases,orders by way of stay or injunction are alsomade. Whatever may have been the practices in thepast, a time has come where the courts shouldkeep the larger public interest in mind whileexercising their power of grantingstay/injunction. The power under Article 226 isdiscretionary. It will be exercised only infurtherance of interests of justice and notmerely on the making out of a legal point. Andin the matter of land acquisition for publicpurposes, the interests of justice and the publicinterest coalesce. They are very often one andthe same. Even in a civil suit, granting ofinjunction or other similar orders, moreparticularly of an interlocutory nature, isequally discretionary. The courts have to weighthe public interest vis-a-vis the privateinterest while exercising the power under Article226 – indeed any of their discretionary powers.It may even be open to the High Court to direct,in case it finds finally that the acquisition wasvitiated on account of non-compliance with somelegal requirement that the persons interestedshall also be entitled to a particular amount ofdamages to be awarded as a lump sum or calculatedat a certain percentage of compensation payable.There are many ways of affording appropriaterelief and redressing a wrong; quashing theacquisition proceedings is not the only mode ofredress. To wit, it is ultimately a matter ofbalancing the competing interests. Beyond this,it is neither possible nor advisable to say. Wehope and trust that these considerations will beduly borne in mind by the courts while dealingwith challenges to acquisition proceedings."23. One more argument advanced is that there should be twoseparate notifications under Section 17(2) and Section 17(4) of theAct. A careful reading of both the provisions does not indicate ofany such requirement. In fact all that the appropriate Government tosatisfy is the application of mind and once it is satisfied, both thenotifications can be made simultaneously. The Supreme Court in thejudgment in Essco Fabs Private Limited case (supra) has observed thatit may be held generally where an order is made under Section 17(1), https://hcservices.ecourts.gov.in/hcservices/ an order under Section 17(4) is also passed. The Supreme Court didnot lay down the law that both the notifications should be madeseparately and cannot be made simultaneously. 24. We may also add that the acquisition of land is only to anextent of 18,225 sq.ft., and by such acquisition, only the compoundwalls of the building belonging to the land owners, two pump rooms,one generator room and open ground floor dining of a hotel and onesweet shop are alone to be demolished in addition to one ground floorshop building which has been constructed unauthorisedly to an extentof 1.50 sq.mts., inasmuch as the service lanes are absolutelynecessary for the free flow of traffic. Once the flyover isconstructed, these parallel service lanes will be indispensable forthe neighbours for their access to the premises and they cannot haveany grievance over the invocation of the urgency clause and in thatcontext, the dispensation of the enquiry under Section 5-A cannot befound fault with. 25. One more argument advanced by Mr.V.T.Gopalan, learned seniorcounsel is as to the non-compliance of the time limit prescribed inthe PERT Chart. In our opinion, the Government Order issued inG.O.Ms.No.1895, Revenue dated 27.8.90 is more or less guidelines andby any stretch of imagination, it cannot be treated to be as one forstrict compliance. The completion of procedures depends upon variousfactors and solely on the ground of violation of those guidelines,should the Court frustrate the very purpose of the acquisition bysetting aside the notifications? In our opinion, even if there arecertain non-compliance of the guidelines, the Court must desist frominterfering with the acquisition proceedings which are initiated fora definite public purpose and consequently it must necessarily upholdthe notifications. 26. For all the above reasons, we are of the opinion that thejudgment under appeals cannot be sustained and the appeals preferredby the Corporation and the State should be allowed. As a necessarycorollary, all the writ petitions are liable to be dismissed.Accordingly, the writ appeals are allowed and the writ petitions aredismissed. Consequently, all the miscellaneous petitions in the writappeals and writ petitions are closed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarss https://hcservices.ecourts.gov.in/hcservices/ To1. The Principal Secretary to Government Municipal Administration and Water Supply Department (MC1) Fort St.George, Chennai 600 0092. The Commissioner Corporation of Chennai Rippon Buildings Chennai 600 0033. The Chief Engineer Buildings & Bridges Public Information Officer Corporation of Chennai Rippon Buildings Chenani 600 0034. The Tahsildar Mylapore-Triplicane Taluk Chennai 600 0285. The Commissioner, The Corporation of Chennai, Works Department, Rippon Building, Chennai-600 003.6. The Chennai Metropolitan Water Supply and Sewerage Board, No.1, Pumping Station Road, Chennai-600 002.7. The Chief Engineer, Buildings & Bridges, Corporation of Chennai, Rippon Buildings, Chennai-3.+ 2 c.cs. to Mr. V. Bharathidasan, Advocate. S.R.No.48753.W.A.Nos.825 to 832 of 2009 etc.RJ, NM (CO)GSK 07.10.2009.