V.Jeevarathinam v. The Director of Municipal Administration & Water Supply

3. The acquisition was for the public purpose andformation of over bridge at Korukkupet, Kathivakkam High Road andCockrain Basin Road Railway Level Crossing at Tondiarpet village.4. The petitioner in W.P.No.12467 of 2008 is residing inthe first floor and put up shops in the ground floor and let out thesame to the third parties. The petitioners in other writ petitionviz., W.P.No.13930 of 2008 is running a private matriculation schoolin their properties. They have been served with Form 6 notice dated17.4.2008, under Section 9(1) & 10 of the Land Acquisition Act, 1894(herein after referred to as Act) with regard to the proposedacquisition of their properties. They have submitted theirobjection. The objection was that there was no previous noticeeither under Section 4(1) or under Section 5-A of the Act. InW.P.No.12467 of 2008. Apart from the said ground, it was urged onthe side of the petitioner that emergency provision under Section 17should not have been invoked.5. The main ground of attack of the said notificationare:-(1) The notice issued under Section 9(1) and 10 of theLand Acquisition Act is bad in law and does not attract nor does itcome within the purview of Section 17 of the Act.(2) Extraordinary powers under Section 17 can be invokedonly in exceptional cases or in case of emergency.(3) The need or purpose to construct a bridge did notarise suddenly or overnight or unexpectedly. As such the proposedacquisition can wait for a minimum period within which the objectioncan be received and enquiry can be conducted under Section 5-A.(4) There is no substantive satisfaction.(5) Counter is very silent about the reason for invokingemergency Clause under Section 17.(6) In W.P.No.13930 of 2008, it was also contended thatthere is no need to acquire the land. Only one side of the roadwhere the petitioners runs the school cannot alone be acquired.6. Counter affidavit had been filed on behalf of the thirdrespondent wherein the following facts have been pointed out:-6.1. Due to increase in traffic in the Korukkupet area inKathivakkam High Road Cockrain Basin Road railway crossing it wasproposed to construct a railway over bridge. The above proposal wasmade after due traffic study by appointing an expert consultant andit was proposed to construct a over bridge. The proposal wassubmitted to the Government and the same was approved inG.O.Ms.No.80 dated 11.06.2007. Due to increase in the railwaytraffic, pedestrians and vehicular traffic are made to wait forlonger period and created chaos and the public are much stranded inthe malee. Hence there is a urgent need for construction of the https://hcservices.ecourts.gov.in/hcservices/ Railway Over Bridge. The fourth respondent has taken possession ofthe land in 10 survey nos. out of 12 survey nos. that was sought tobe acquired and only in view of the interim stay granted by thisCourt in the above writ petitions the fourth respondent is unable totake possession of the remaining two survey nos.6.2. Counter affidavit was filed by the fourth respondentin tune with the counter affidavit filed by the third respondent.7. I have heard Mr.E.Jayasankar and Mr.A.Venkatesan, thelearned counsels appearing for the petitioners in both the writpetitions, Mr.V.Bharathidasan, the learned counsel appearing for theCommissioner, Chennai Corporation and Mrs.LitaSrinivasan, thelearned Government Advocate appearing for the Government.7.1. The first and foremost submission that was made onbehalf of the petitioners are that, invoking the emergency clauseunder Section 17 of the Act, thereby dispensing with the enquiryunder Section 5-A is bad in law citing real urgency, which is not inexistence in the case on hand. The respondents ought to haveconducted enquiry under Section 5-A of the Act and ought not to havedispensed with the said enquiry and invoked emergency clause underSection 17 of the Act.7.2. In this regard, the learned counsel appearing for thepetitioners relied on several decisions of the Hon'ble Apex Court.(a) The judgement reported in (1980) 2 SCC page 471 (Stateof Punjab Vs. Gurudial Singh and others) was cited and submittedthat in the said matter the Hon'ble Apex Court held that "it isfundamental that compulsory taking of man's property is a seriousmatter and the smaller the man the more serious the matter. Hearinghim before depriving him is both reasonable and pre-emptive ofarbitrariness and denial of this administrative fairness isconstitutional anathema except for good reasons. Save in realurgency where the public interest does not brook even the minimumtime needed to hear, Land acquisition authorities should not havingregard to Articles 14 and 19 burke an enquiry under Section 17 ofthe Act. "(b) The judgement reported in (2002) 7 SCC page 98 (Unionof India vs. Shakunthala Gupta (Dead) by L.Rs, wherein the Hon'bleApex Court while dismissing the review petition upheld the decisionof the Division Bench of Delhi High Court in the case of Banwari laland sons (p) Ltd., vs. Union of India, wherein the land acquisitionproceedings was set aside on the ground that there is no whisper ofwhat was the urgency to take immediate possession and to deny theright under Section 5-A of the Act. https://hcservices.ecourts.gov.in/hcservices/ (c) The judgement reported in 2004 (8) SCC page 14 (Unionof India Vs. Mukesh Hans), wherein the Hon'ble Apex Court has heldthat mere existence of urgency though is a condition precedent forinvoking Section 17 of the Act, that itself is not sufficient fordispensing with the enquiry under Section 5-A. It requires anopinion to be formed by the concerned Government that along with theexistence of such urgency or unforeseen emergency there is also aneed for dispensing with 5A enquiry and the Government has to applyits mind before doing so.(d) In (2004) 8 SCC page 453 (Union of India and othersvs. Krishna Lal Arneja and others), the Hon'ble Apex Court has heldthat Section 17 confers extraordinary powers on the authoritiesunder which it can dispense with Section 5A enquiry in exceptionalcase of urgency. Such powers cannot be lightly resorted to except incase of real urgency enabling the Government to take immediatepossession of the land proposed to be acquired for public purpose.(e) In 2008 (1) SCC page 728 (Devinder Singh and othersvs. State of Punjab and others), the Supreme Court has held that theconclusive order under Section 6 of the Act is also subject tojudicial review on the grounds of jurisdictional error.(f) In (2005) 7 SCC page 627 (Hindustan PetroleumCorporation Ltd. vs. Darius Shapur Chennai and others), the SupremeCourt has held that the jurisdiction of the Court is no doubtlimited but however when an opportunity of being heard has expresslybeen conferred by a statute, the same must scrupulously be compliedwith.7.3. Thus relying on the various Supreme Court decisionsreferred to above, it was contended on behalf of the learned counselappearing for the petitioners that the Hon'ble Apex Court has takena consistent view that only in case of real urgency, Section 17 ofthe Act should be invoked and pressed into service. Even then, itshall be upon subjective satisfaction of the authority concerned.Mere public purpose does not automatically mean that there is anurgency. Invoking urgency clause there by dispensing with an enquiryunder Section 5A of the Act, is not automatic. Enquiry contemplatedunder Section 5A of the Act is a step in furtherance of what isenshrined under Article 300A of the Constitution of India.7.4. On facts also the learned counsels appearing for thepetitioners submitted that there is no need to acquire their landsfor the purpose for which the land acquisition proceedings wereinitiated and in W.P.No.13930 of 2008 the learned counsel appearingfor the petitioners therein contended that the petitioners arerunning a school therein and the said property can be excluded. https://hcservices.ecourts.gov.in/hcservices/

8. On the other hand, Mrs.Lita Srinivasan, the learnedGovernment Advocate appearing for the respondent Government, as wellas Mr. V.Bharathidasan, the learned counsel appearing for thecorporation submitted that since there is an urgent requirement forputting up over bridge to cater the needs of the public who has towait for a long time to cross over the road and due to increase inthe traffic in the Korukkupet area in Kathivakkan High Road CochraneBasin Road railway crossing, it was proposed to construct a railwayover bridge. The proposal was made after due traffic study byappointing an expert consultant. After submission of the proposal,the Government was pleased to approve the same in G.O.Ms.No.80 dated11.06.2007. It will ease the congestion and the people at largeneed not wait for a longer period. The Government has thought overthe matter and invoked Section 17 of the Act.8.1. In support of their contentions, the followingjudgements were relied on(a) (2007) 5 MLJ 831. More emphasis was made on para 29which is extracted here under:-" 29. As has been observed in several decisions bythe Supreme Court, the question of acquisition underSection 17(1) and 17(4) of the Land Acquisition Act is onthe basis of subjective satisfaction of the Government andordinarily it is not open to the Court to sit in judgementin an objective manner over such subjective satisfaction.It may be that any scheme is likely take its own time forimplementation. It is also matter of common experiencethat very often many of the schemes which are required tobe urgently implemented get mired in unnecessaryadministrative and legal wranglings. Similarly, merelybecause at times many matters are pending before the Courtof law and the persons in charge of administration are notalert enough to seek for early disposal of matters, cannotbe construed as a ground for coming to a conclusion at asubsequent stage that initially there was no urgency. Itis no doubt true that the right conferred under Section 5-A of the Act is a valuable right, but in a given case suchright is subject to the power of eminent domain of theState and obviously subject to the provision regardingacquisition of land by invoking the urgency clause andunless it is shown that decision of the Government forinvocation of the urgency clause is of arbitrariness, malafides or non-application of mind, ordinarily the Courtshould not interfere with the discretionary matters, whichare based on subjective satisfaction of the appropriateauthority." https://hcservices.ecourts.gov.in/hcservices/ (b) W.A.No.814 of 2009 and etc., batch. Para 19 on whichmore reliance was made is extracted here under:-"19. This takes us to the next question as to whetherthe Government had sufficient reason for dispensing withthe enquiry under Section 5-A in the given facts of thecase. The learned counsel appearing for the Corporation ofChennai produced the relevant files and we have perusedthe same. In terms of Sub-section (3-A) of Section 17 ofthe Act, the Collector shall, without prejudice to theprovisions of Sub-section 3, tender payment of 80% ofcompensation for such land as estimated by him to thepersons 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. ofland to be acquired. That was processed and inspection ofthe land in question was carried on by the Tahsildarconcerned and in his proceedings dated 22.4.2008, he alsorecommended for the said sanction of the amount.Thereafter, the Commissioner, Corporation of Chennai alsosought permission from the District Collector in hiscommunication dated 22.4.2008 for acquiring the land.Considering all the above aspects, the Government inG.O.Ms.No.120 dated 26.6.2008 accorded approval apparentlykeeping in mind the urgency clause. In all thesecorrespondences, not only the Tahsildar concerned, butalso the Commissioner as well as the Government hadreferred to only the provisions of urgency clauseindicating the requirement to invoke the said provision.Finally a note was placed for invocation of the urgencyclause. From the note file, it is seen that though someattempts were made to negotiate with the owners, itfailed, thereby necessitating the invocation of theurgency clause. The learned single judge, of course, byplacing reliance on certain portions at pages 21, 59, 91 &285 in File No. C. No.25235/MC1/2008 and pages 7, 9, 23 &155 in File No. 15820/MC1/2008, has held that there was noindication of application of mind by the Government. Inour considered view, the said reason cannot be accepted.In order to find out the satisfaction of the appropriateGovernment to invoke the urgency clause, the entire filemust be taken into consideration. As we have alreadynoted, right from the proceedings dated 30.4.2008 of theSpecial Commissioner and Commissioner of LandAdministration, it is seen that the Government had appliedits mind to invoke the urgency clause and therefore onlyrecommended the sanction of 80% of the compensation amount https://hcservices.ecourts.gov.in/hcservices/ which is to be statutorily tendered while invoking theurgency clause and the subsequent proceedings alsoindicate that the Government by invoking the urgencyclause not only sanctioned the compensation amount, butalso sanctioned the very acquisition proposal as such. Thepermission was accorded by the Governor keeping in mindthe above background of the proceedings. If the entireproceedings are read as a whole, the Court has tonecessarily accept the stand of the Government that therewas a proper application of mind for invoking the urgencyclause. As we have already pointed out that such exerciseof discretionary power could be tested only onreasonableness or on mala fide grounds. In this case, thequestion of mala fide is not put in issue. The only groundleft open is the reasonableness. In fact, the appropriateGovernment need not pass a reasoned order to itssatisfaction, as such subjective satisfaction could beculled out from the records, as has been held by theSupreme Court in Mohan Singh and Ors. v. InternationalAirports Authority of India and Ors. (1997) 9 SCC 132.Hence, we are of the considered view that the opinion ofthe Government to invoke the urgency clause is supportedby reasons and it cannot be termed to be as unreasonableor capricious."9.1. The contention of the learned counsels appearing forthe petitioners is that enquiry under Section 5-A is not a mereformality and that it could not be brushed aside easily, is welllaid down proposition. The Hon'ble Apex Court in the judgementsreferred to above have clearly held that though Section 17 of theAct confers extraordinary powers on the authorities to dispense withthe normal procedure laid down under Section 5A of the Act, it shallbe sparingly invoked and that too in an exceptional case of urgency.Further, the Hon'ble Apex Court held that the enquiry under Section5A is very valuable right of a person whose property is sought to beacquired.9.2. In the back drop of the above pronouncement of thisCourt as well as the Hon'ble Apex Court, it has to be seen in thepresent case on hand that whether respondents are justified indispensing with the enquiry contemplated under Section 5A of the Actand that whether the respondents are justified in invoking Section17 of the Act.9.3. In the given case on hand, the respondents seems tohave considered the traffic congestion in the Korrukupet area inKathivakkam High Road Cochrane Basin Road railway crossing and itwas decided to construct the railway over bridge. An expert opinionseems to have been obtained before taking an action in this regard. https://hcservices.ecourts.gov.in/hcservices/ The proposal was sent to the Government and the same was approved inG.O.Ms.No.80 dated 11.06.2007. It is not denied even by thepetitioners that there exists a necessity to put up a railway overbridge in the korrukupet area. The only objection that was raised isthat the emergency clause should not have been invoked and thereshould have been a 5A enquiry in which the petitioners could haveexplained their position. 9.4. Before considering the said contention, it will beuseful to extract Section 17 of the Act which is reproduced hereunder:-" 17. Special powers in cases of urgency. -- (1) Incases of 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 for publicpurpose. Such land shall thereupon vest absolutely in theGovernment free from all encumbrances.(2) Whenever, owing to any sudden change in thechannel of any navigable river or other unforeseenemergency, it becomes necessary for any RailwayAdministration to acquire the immediate possession of anyland for the maintenance of their traffic or for thepurpose of making thereon a river-side or ghat station, orof providing convenient connection with or access to anysuch station, or the appropriate Government considers itnecessary to acquire the immediate possession of any landfor the purpose of maintaining any structure or systempertaining to irrigation, water supply, drainage, roadcommunication or electricity, the Collector may,immediately after the publication of the notice mentionedin sub-section (1) and with the previous sanction or theappropriate Government, enter upon and take possession ofsuch land, which shall thereupon vest absolutely in theGovernment free from all encumbrances:Provided that the Collector shall not take possessionof any building or part of a building under this sub-section without giving to the occupier thereof at leastforty-eight hours' notice of his intention so to do, orsuch longer notice as may be reasonably sufficient toenable such occupier to remove his movable property fromsuch building without unnecessary inconveniences.(3) *********(3-A) *********(3-B) *********(4) In the case of any land to which, in the opinionof the appropriate Government, the provisions of sub- https://hcservices.ecourts.gov.in/hcservices/ section (1) or sub-section (2) are applicable, theappropriate Government may direct that the provisions ofsection 5-A shall not apply, and, if it does so direct, adeclaration may be made under Section 6 in respect of theland at any time after the date of the publication of thenotification under Section 4, sub-section (1)."9.5. The power of the Government to invoke Section 17(4)of the Act was upheld by the Hon'ble Apex Court in the judgementreported in AIR 1968 SC page 870 (Ishwarlal Girdharlal Joshi etc.,vs. State of Gujarat and another). It was held therein that the onlyrequirement for the Government to invoke Section 17 is that itshould have applied its mind and satisfy itself for invokingemergency clause. It shall not be arbitrary, capricious, taintedwith malafide and there shall not be colourable exercise of power.The important requirement therefore, for the Government to invokeSection 17 is that it shall be supported by reasonable reasons andit shall not be unreasonable, arbitrary and tainted with malafide.In the given case on hand it is nobody's case that the proposedconstruction and acquisition of the petitioners property is taintedwith malafide or colourable exercise of power. Their only contentionis that the emergency power should not have been invoked.9.6. Before considering the said issue, it will be usefulto place reliance on (i) G.O.Ms.No.80, Municipal Administration and WaterSupply Department, dated 11.06.2007(ii) The Collector's proceedings signed on 21.08.2007 sentto the Special Commissioner & Commissioner of Land Administration,Chennai.(iii) The letter addressed by The Special Commissioner andCommissioner of Land Administration to The Collector dated25.09.2007.(iv) G.O.Ms.No.158, Municipal Administration and WaterSupply Department, dated 23.11.2007(v) G.O.Ms.No.165, Municipal Administration and WaterSupply Department, dated 03.12.2007.9.7. G.O.Ms.No.80, Municipal Administration and WaterSupply Department, dated 11.06.2007 in and by which the Governmentaccorded administrative sanction for acquiring the land in questionfor the formation of the over bridge is extracted here under:-RUf;fk;efuhl;rp eph;thfk; kw;Wk; FoePh; tH';fy; Jiw ? brd;id khefuhl;rp ?fj;jpthf;fk; beL";rhiy fhf;nud; ngrpd;rhiy uapy;nt re;jpf;fltpy; thfd https://hcservices.ecourts.gov.in/hcservices/ nkk;ghyk; mikj;jy; U:.1220-? yl;rk; kjpg;gPl;ow;F eph;thf xg;g[jy;; mspj;jy; ?Miz btspaplg;gLfpwJ/????????????????????????????????????????????????????????????????????????????????? efuhl;rp eph;thfk; kw;Wk; FoePh; tH';fy; (kh/e/1) Jiw murhiz (epiy)vz;/80 ehs;;/ 11/06/2007 gof;ft[k; 1/brd;id khefuhl;rp foj vz;/gh/J/e/f/vz;/gp3-515-2002 ehs; 05/04/2007 kw;Wk; 07/05/2007 ???? Miz/ brd;id khefuhl;rp Mizah; jdJ 05/04/2007 ehspl;l fojj;jpy; kd;w jPh;khdvz;/97-2004. ehs; 21/05/2004d; go thh;L?11. kz;lyk;?1y; fj;jpthf;fk;beL";rhiy fhf;nud; ngrpd; rhiy ,uapy;nt re;jpf;fltpy; (L.C.1/KMV K-6/7)thfd nkk;ghyk; mikf;Fk; gzpf;fhf U:.7/10nfho kjpg;gPl;L xg;g[jiy vjph;nehf;fpxg;gk; nfhut[k; njitahd epjpapid fld; cjtp epjpapypUe;J fldhf bgw muRmDkjp nfhut[k; nkw;go thfd nkk;ghyj;jpw;F ,uapy;nt Jiwapd; mDkjp bgwmth;fis mQqft[k;/ ,j;jpl;lj;ij ,uapy;nt Jiw jdJ 2004?2005 ,uapy;ntgzp jpl;lj;jpy; ,lk; bgw bra;a ,uapy;nt JiwapdUf;F muR fojk; mDg;gt[k;kd;wj;jpd; mDkjp bgwg;gl;Ls;sJ/ ,jdpilna nkw;fz;l thfd nkk;ghyk;mikf;Fk; gzpf;F fye;jwpjw;Fhpath; jpUthsh;fs;/!Lg; fd;!y;ld;l;;! K:yk;2003?2004k; Mz;L jpUj;jpa mYtyf tpiyg;gl;oaypd;go U:/1080 yl;r';fSf;Fkjpg;gPL jahhpf;fg;gl;L bgwg;gl;lJ vd;Wk; Twpa[s;shh;/ 2/ nkw;go nkk;ghy gzpf;F ,uapy;nt Jiwapd; bghJ totikg;g[ kw;Wk;tiuglj;jpw;F khefuhl;rpapd; mDkjp tH';fg;gl;lJ vd;Wk; ,uapy;nt gFjpf;fhdkjpg;gPL U:/502/35 yl;r';fs; vd ,uapy;nt Jiw bjhptpj;Js;sJ/ vdt[k; brd;idkhefuhl;rpapd; 2006?2007 (jpUj;jpa) mYtyf tpiyg;gl;oaypd;go ,e;j ,uapy;ntre;jpf;fltpy; thfd nkk;ghy gzpf;F kjPg;gPl;Lj;bjhif U:/12.20.00.00-?f;Fjahhpf;fg;gl;Ls;sJ vd;Wk; Mizah; bjhptpj;Js;shh;/ nkw;go kjpg;gPL bjhif fPH;fz;lthW gfph;khdk; bra;Jbfhs;sg;gLk; vdt[k;mth; bjhptpj;Js;shh;/ https://hcservices.ecourts.gov.in/hcservices/ ?????????????????????????????????????????????????????????????????????????????????t tptuk; kjpg;gPl;L ,uapy;nt khefuhl;rpvz; gFjpapd; gFjpapd;50#* 50# bjhif bjhif yl;r';fspy; yl;r';fs;;?????????????????????????????????????????????????????????????????????????????????1/ ,uapy;nt Jiwapd; 502/35 251/175 251/175 kjpg;gPL2/ brd;id khefuhl;rpapd; kjpg;gPl;Lj; bjhif fk;gp tl';fs; kw;Wk; FHha;fs; khw;wp mikj;jy; cl;glepy Mh;$pjk; eP';fyhf 800/00 400/00 400/00?????????????????????????????????????????????????????????????????????????????????;3/ epy Mh;$pjk; 420/00 ??? 420/00 ????????????????????????????????????????????????????????????????????????????????? 1.722/33 651/175 1071/175=============================================================================================================================================================================,jw;F kd;wk; jPh;khd vz;/98-2007 K:yk; ghpe;Jiu bgwg;gl;Ls;sJ vd;Wk; murpd;eph;thf mDkjpia vjph;nehf;fp xg;g';fs; nfhu Mizahpd; mDkjp bgwg;gl;L03/04/2007 md;W xg;g';fs; nfhug;gl;ld vdt[k; brd;id khefuhl;rp Mizah;bjhptpj;Js;shh;/ 3/ nkw;Fwpj;j N:H;epiyapy; brd;id fj;jpthf;fk; beL";rhiy fhf;nud; ngrpd;rhiy ,uapy;nt re;jpf;fltpy; FWf;nf thfd nkk;ghyk; mikf;f brd;id khefuhl;rpMizah; fPH;fhQqk; fUj;JUtpid mDg;gp cs;shh;/1/ 2006?2007k; Mz;L jpUj;jpa mYtyf tpiyg;gl;oaypd;go jahhpf;fg;gl;l brd;id khefuhl;rp kjpg;gPl;L bjhifahd U:/12.20.00.000-?f;F eph;thf xg;g[jYk; kw;Wk; xg;g';fs; nfhhpaikf;f gpd;ndw;g[ mDkjpa[k;. 2/ ,uapy;nt gFjpapd; kjpg;gPl;L bjhifahd U:/502/35-? yl;r';fSf;F xg;g[jYk;. 3/ 50/50rjtPj mog;gilapy; nkw;go gfph;khdk; bra;ag;gl;l https://hcservices.ecourts.gov.in/hcservices/ kjpg;gPL bjhifia ,UJiwfSk; gfph;e;J bfhs;tjw;F xg;g[jYk;. 4/ 2007?2008k; Mz;L K:yjd epjpapypUe;J nkw;go gzp nkw;bfhs;tjw;Fk;. mDkjpa[k; 4/ brd;id khefuhl;rp Mizahpd; nkw;fz;l fUj;JUit ghprPypj;j muR mjidVw;Wf; bfhs;sj; jPh;khdpj;Js;sJ/ mjd;go muR fPH;f;fz;lthW MizapLfpwJ/ 1/ brd;id fj;jpthf;fk; beL";rhiy fhf;nud; ngrpd; rhiy ,uapy;nt re;jpf;fltpy; thfd nkk;ghyk; mikf;Fk; gzpf;;F 2006?2007 k; Mz;L jpUj;jpa mYtyf tpiyg;gl;oaypd;go jahhpf;fg;gl;l brd;id khefuhl;rp kjpg;gPl;L bjhifahd U:/12.20.00.000-?f;F eph;thf xg;g[jYk; kw;Wk; xg;g';fs; nfhhpaikf;F gpd;ndw;g[ mDkjpa[k; tH';fg;gLfpwJ/ 2/ ,uapy;nt gFjpapd; kjpg;gPl;L bjhifahd U:/502/35-? yl;r';fSf;F xg;g[jy; tH';fg;gLfpwJ/ 3/ 50/50 rjtPj mog;gilapy; nkw;go gfph;khdk; bra;ag;gl;l kjpg;gPL bjhifia brd;id khefuhl;rpa[k;. ,uapy;nt Jiwa[k; gfph;e;J bfhs;tjw;F xg;g[jy; tH';fg;gLfpwJ. 4/ 2007?2008k; Mz;L brd;id khefuhl;rp K:yjd epjpapyUe;J nkw;go gzp nkw;bfhs;tjw;Fk;. mDkjp tH';fg;gLfpwJ/ 5/ ,t;thiz epjpj;Jiwapd; ,irt[ld; btspaplg;gLfpwJ/ (m/rh/F/vz;/1632-ep/br/g;gp/07 ehs; 23/05/2007) (MSehpd; Mizg;go) nf/jPdge;J muRr; brayhsh;/ https://hcservices.ecourts.gov.in/hcservices/ bgWeh;Mizah;. brd;id khefuhl;rp. brd;id?3bghJ nkyhsh;. bjd;dfuapy;nt. brd;id?3,af;Feh;. cs;shl;rpfs; epjpj;jzpf;if. brd;id?108/khepyf; fzf;fhah; (bgahpy;) brd;id 18-35/efy;/ Kjyikr;rhpd; neh;Kf cjtpahsh;. brd;id?9Cuf tsh;r;rp kw;Wk; cs;shl;rpj; Jiw mikr;rhpd; neh;Kf cjtpahsh;. brd;id?9/epjpaikr;rhpd; neh;Kf cjtpahsh;. brd;id?9/efuhl;rp eph;thfk; kw;Wk; FoePh; tH';fy; Jiw brayhpd; neh;Kf cjtpahsh;. brd;id?9/epjpj;Jiw. brd;id?9/ --Mizg;go mDg;gg;gLfpwJ-- gphpt[ mYtyh;/9.8. The Collector's proceedings dated 'nil' signed on21.08.2007 refers about the advice tendered by the ministerconcerned is extracted here under:-mJ rkak; khz;g[kpF cs;shl;rpj;Jiw mikr;rh; mth;fs; Ma;t[ nkw;bfhz;L epy vLg;g[ gzpapid Jhpjg;gLj;jp epy vLg;g[r; rl;lk; 1894 gphpt[ 17(2)id gad;gLj;jp mtru gphptpd; fPH; cldo eltof;if vLj;J brd;idkhefuhl;rpf;F epyj;ij xg;gilf;Fk;go mwpt[iufs; tH';fpdhh;/ vdnt. nkw;fz;l g[yj;ij mtrug; gphptpd; fPH; epy vLg;g[ bra;a ntz;o 4(1) kw;Wk; gphpt[ 6d; fPH;tiut[ mwptpf;iffSld; epy vLg;g[ Kd;bkhHpt[fs; jahhpf;fg;gl;lJ/9.9. The letter of The Special Commissioner andCommissioner of Land Administration dated 25.09.2007 addressed toThe Collector, Chennai is extracted here under:-"Land Administration DepartmentFromToThe Special Commissioner andThe CollectorCommissioner of Land Chennai.Administration.Ezhilagam, Chepauk,Chennai 600 005. https://hcservices.ecourts.gov.in/hcservices/ Letter No.M2/27936/07 Dated:25.09.2007Madam,Sub:LandAcquisition – Chennai District – Fort – TondiarpetTaluk – Tondiarpet Village – S.No.1853/2 etc – Extent 2 Ground 0224 Sq.ft. (5024 Sq.ft) - Acquisition of lands for the formation of over Bridgeat Korukupet Kathivakkam High Road, Cocrin Basin Road Railway level crossing Scheme – Acquisitionof Lands under urgency clause Sec.17(2) of Land Acquisition Act – 4(1) Notification and D.D.6 proposal received – Regarding.Ref:1.Your Lr.No.07/59771/04 dated: 21.8.07. 2.This office Lr.No.M227936/07 dated:25.09.07.I invite your attention to the references cited.2.In this office letter second cited the above proposalunder section 4(1) and Draft Declaration under section 6 sent byyou, has been recommend to Government for approval and causingpublication in the Tamil Nadu Government Gazette and in two TamilDailies under urgency clause 17(2) of Land Acquisition Act.3. In this connection I request you to get the LandReforms certificate from Assistant Commissioner (LR) and send it toGovernment directly under intimation to this office.Yours faithfully, Sd/., R.Mahendravelfor Special Commissioner and Commissioner of Land Administration. "9.10. The Government passed G.O. in G.O.Ms.No.158,Municipal Administration and Water Supply Department, dated23.11.2007 which is usefully extracted here under:- RUf;fk;brd;id khefuhl;rp ? epy vLg;g[ ? nfhl;il ? jz;ilahh;ngl;il tl;lk; kw;Wk;fpuhkk; ? bfhUf;Fngl;il fj;jpthf;fk; beL";rhiyapy; kw;Wk; fhf;nud; ngrpd;rhiyapy; ,uapy;nt re;jpf;fltpy; thfd nkk;ghyk; mikj;jy; ? g[y vz;/1853-2.5kw;Wk; 1854-4.5 kw;Wk; rpytw;wpy; 2 kid kw;Wk; 0224 rJu mo (my;yJ) 5024 rJu https://hcservices.ecourts.gov.in/hcservices/ mo epy';fis epy vLg;g[r; rl;lk; mtrug; gphpt[ 17(2)d; fPH; ifafg;gLj;Jjy; ?murpd; eph;thf xg;gspg;g[ tH';Fjy; ? Miz btspaplg;gLfpwJ/????????????????????????????????????????????????????????????????????????????????? efuhl;rp eph;thfk; kw;Wk; FoePh; tH';fy; JiwmuR Miz (epiy) vz;/158 ehs;/ 23/11/2007 gof;ft[k;/ 1/ murhiz (epiy ) vz;/80 efuhl;rp eph;thfk; kw;Wk; FoePh; tH';fy; Jiw. ehs;/11/06/2007/ 2/ brd;id khtl;l Ml;rpahpd; foj vz;/X7-59771-2007. ehs;/24/08/2007/ 3/ rpwg;g[ Mizah; (k) epy eph;thf Mizahpd; foj vz;/vk;/2-27936-2007. ehs;/25/09/2007/ ????Miz/ nkny thpir vz; xd;wpy; fz;l murhizapy; brd;id bfhUf;Fngl;ilfj;jpthf;fk; beL";rhiyapy; kw;Wk; fhf;nud; ngrpd; rhiyapy; ,uapy;ntre;jpf;fltpy; (LCI/KMV K-6/7)thfd nkk;ghyk mikf;Fk; gzpf;F 2006?2007k;Mz;L jpUj;jpa mYtyf tpiyg;go jahhpf;fg;gl;l jpUj;jpa kjpg;gPl;Lj; bjhifahdU:/12.20.00.000-?f;F murpd; eph;thf mDkjp tH';fg;gl;Ls;sJ/ 2/ rpwg;g[ Mizah; kw;Wk; epy eph;thf Mizah; nkny K:d;wpy; gof;fg;gl;lfojj;jpy; brd;id khtl;lk; nfhl;il ? jz;ilahh;ngl;il tl;lk;.jz;ilahh;ngl;il fpuhkk;. g[y vz;/1853-2.5 kw;Wk; 1854-4.5 kw;Wk; rpytw;wpy; 2fp0224 rJu mo (m) 5024 rJu mo bfhUf;Fg;ngl;il fj;jpthf;fk; beL";rhiy kw;Wk;fhf;nud; ngrpd; rhiyapy; thfd nkk;ghyk; mikg;gjw;fhf brd;id khefuhl;rpnfl;Lbfhz;ljw;fpz';f. epy vLg;g[r; rl;lk; mtrug;gphpt[ 17(2)d; fPH; ifafg;gLj;jcj;njrpf;fg;gl;Ls;sJ vd;Wk;. ,jw;fhf epy cilikahsh;fSf;F juntz;oa ,Hg;gPl;Lj; bjhif U:/57.94.964-? MFk; vd bjhptpj;J ,jd; ,dthhp tpguk;gpd;tUkhW cs;sJ vdt[k; bjhptpj;Js;shh;/ https://hcservices.ecourts.gov.in/hcservices/ ?????????????????????????????????????????????????????????????????????????????????ifafg;gLj;jg;gl cs;s epy';fspd; bkhj;j 5024 rJu mo my;yJ tp!;jPuzk; 2fp/0224r/mo ?????????????????????????????????????????????????????????????????????????????????rhh;gjpthsh; mYtyf tHpfhl;o gjpntl;od;go2007k; Mz;Lf;fhd epykjpg;g[ xU rJumo xd;Wf;F U:/492-?????????????????????????????????????????????????????????????????????????????????ifafg;gLj;jg;gl cs;s 2fp/0224 r/momy;yJ 5024 r/mo epyj;jpd; kjpg;g[ U:/24.71.808-??????????????????????????????????????????????????????????????????????????????????ifafg;gLj;j cs;s g[yj;jpy; cs;sfl;ol';fspd; njhuha kjpg;g[ U:/16.09.153-??????????????????????????????????????????????????????????????????????????????????epyk; kw;Wk; fl;ol';fspd; njhuha kjpg;g[100# U:/40.80.961-? :?????????????????????????????????????????????????????????????????????????????????30rjtPj MWjy; bjhif U:/12.24.288-??????????????????????????????????????????????????????????????????????????????????12 rjtpfpjk; TLjy; bjhif U:/4.89.715-?????????????????????????????????????????????????????????????????????????????????bkhj;j njhuha ,Hg;gPl;Lj;bjhif U:/57.94.964-??????????????????????????????????????????????????????????????????????????????????3/ ifafg;gLj;jg;gl cs;s epy';fs; midj;Jk; epue;ju epy msitg;gjpntl;oy; tpLthp vd gjpthfpa[s;sd vd;W epy eph;thf Mizah; Twpa[s;shh;/vdnt. bfhUf;Fg;ngl;il fj;jpthf;fk; beL";rhiy kw;Wk; fhf;nud; ngrpd; rhiyapy;thfd nkk;ghyk; mikg;gjw;fhf brd;id khtl;lk; nfhl;il. jz;ilahh;ngl;iltl;lk;. jz;ilahh;ngl;il fpuhkk; g[y vz;/1853-2.5 kw;Wk; 1854-4.5 kw;Wk;rpytw;wpy; 2fp 0224 rJu mo (m) 5024 rJu mo gug;gst[ cs;s epyj;ij U:/57.94.964-?brytpy; ifafg;gLj;j murpd; eph;thf xg;g[jiy tH':FkhW rpwg;g[ Mizah; (k) epyeph;thf Mizah; nfl;Lf; bfhz;Ls;shh;/4/ nkw;Fwpj;j NH;epiyapy;. rpwg;g[ Mizah; kw;Wk; epy eph;thf MizauJfUj;JUtpid Vw;W brd;id khefuhl;rp. bfhUf;Fg;ngl;il fj;jpthf;fk; beL";rhiy(k) fhf;nud; ngrpd; rhiyapy; thfd nkk;ghyk; mikg;gjw;fhf brd;id khtl;lk; https://hcservices.ecourts.gov.in/hcservices/ nfhl;il ? jz;ilahh;ngl;il tl;lk;. jz;ilahh;ngl;il fpuhkk; g[y vz;/1853-2.5kw;Wk; 1854-4.5 (k) rpytw;wpy; 2fp 0224 r/m/ (m) 5024 r/m/ gug;gst[ epyj;ij epyvLg;g[r; rl;lk; 1894 gphpt[ 17(2) mtru gphptpd; fPH; U:/57.94.964- (U:gha; Ik;gj;jp VG,yl;rj;J. bjhd;D}w;wp ehd;fhapuj;J. bjhs;shapuj;J mWgj;jp ehd;F kl;Lk;)brytpy; ifafg;gLj;j murpd; eph;thf xg;gspg;g[ tH';fp muR MizapLfpwJ/ (MSehpd; Mizg;go) nf/jPdge;J muRr; brayhsh;/ bgWeh;rpwg;g[ Mizah; kw;Wk; epy eph;thf Mizah;. brd;id?5Mizah;. brd;id khehfuhl;rp. brd;id?3/khtl;l Ml;rpj; jiyth;. brd;id?1/efy;/ tUtha; Jiw. brd;id?9/epjpj;Jiw. brd;id?9/efuhl;rp eph;thfk; kw;Wk; FoePh; tH';fy; (m/e/2) Jiw. brd;id?9/,/nfh-gphpt[ efy;-cjphp?5. --Mizg;go mDg;gg;gLfpwJ-- gphpt[ mYtyh;/9.11. In pursuant of the same , the Government passed G.O.in G.O.Ms.No.165, Municipal Administration and Water SupplyDepartment, dated 03.12.2007 which is extracted here under:-"G.O.(Ms)No.165Dated:03.12.2007Read:1. G.O.(Ms)No.80, Municipal Administration and Water Supply Department, dated 11.06.2007.2. From the Collector of Chennai, Letter No. x7/59771/2007 https://hcservices.ecourts.gov.in/hcservices/ dated 24.08.2007.3. From the Special Commissioner and Commissioner of LandAdministration, Chennai-5 Letter No.M2/27936/2007, dated 25/09/2007.4. G.O.(Ms)No.158, Municipal Administration and Water Supply Department, dated 23.11.2007.*****ORDER:In the Government order fourth read above, the Governmentaccorded administrative sanction for acquiring an extent of 2Grounds 0224 Sq.ft. (or) 5024 Sq.ft. of lands in S.No.1853/2, etc.,at Tondiarpet village, Fort-Tondiarpet Taluk, Chennai District forthe formation of Over Bridge at Korukupet Kathivakkam High Road,Cocrin Basin Road Railway Level Crossing Scheme under urgencyprovisions Section 17(2) of the Land Acquisition Act,1894.2. The Government approve the proposal of the Collector ofChennai submitted in her letter second read above as recommended bythe Special Commissioner and Commissioner of Land Administration inthe reference third read above for acquisition of lands inS.No.1853/2, etc., measuring an extent of 2 grounds 0224 Sq.ft. (or)5024 Sq.ft. of lands for the formation of Over Bridge at KorukupetKathivakkan High Road, Cocrin Basin Road Railway Level Crossing inTondiarpet Village, Fort-Tondiarpet Taluk, Chennai District.3. The Draft Notification under section 4(1) of the LandAcquisition Act, 1894 submitted by the Collector, Chennai Districtin her letter second read above are approved and will be publishedin the Tamil Nadu Government Gazette Extra Ordinary and in two DailyNewspapers (Tamil and English) having wide circulation in ChennaiDistrict.4. The works Manager, Government Central Press, Chennai isrequested to publish the appended Notification in the next issue ofTamil Nadu Government Gazette Extra Ordinary and he is requested tofurnish 10 copies of the Gazette containing the Notification to theGovernment in Municipal Administration and Water Supply Department.5. Four copies of the Notification in Tamil and English areforwarded to the Director of Information and Public Relations,Chennai-9. He is requested to arrange for their publication in DailyNewspapers both in Tamil and English having wide circulation in theChennai District. The bill of cost for publication of theNotification in dailies may be sent to Collector, Chennai District.6. The Collector, Chennai District is requested to instruct theLand Acquisition Officer to cause the publication of the substanceof the Notification at convenient places in the Locality in Chennai https://hcservices.ecourts.gov.in/hcservices/ District and also intimate to the Government by Telex the last datesof such publication.(BY ORDER OF THE GOVERNOR)K.DEENABANDU,SECRETARY TO GOVERNMENT."9.12. It is curious to note that G.O.Ms.No.165 dated03.12.2007 refers about G.O.Ms.No.80 dated 11.06.2007, Collector'sproceedings dated 24.08.2007, Letter of the Special Commissioner andCommissioner of Land Administration dated 25.09.2007 addressed tothe Collector and G.O.Ms.No.158 dated 23.11.2007. In none of theG.O's or proceedings there is any reference why the emergencyprovision was invoked dispensing with Section 5A enquiry. Mereexistence of urgency alone may not be condition precedent forinvoking Section 17 of the Act dispensing with an enquirycontemplated under Section 5A of the Act. As held by the Hon'bleApex Court in the judgement reported in 2004 (8) SCC 14, it requiresan opinion to be formed by the concerned Government that along withthe existence of such urgency or unforeseen emergency there is alsoa need for dispensing with 5A enquiry. The Government has to applyits mind before invoking Section 17 of the Act. The said powercannot be, as held by the Hon'ble Apex Court lightly resorted toexcept, if it requires an immediate possession of land, proposed tobe acquired for public purpose. Though, the power of the Court isvery limited in such circumstances, the said exercise must bescrupulously followed when invoking emergency provision underSection 17 of the Act.9.13. In fact, the decision cited on behalf of therespondents namely judgement in W.A.No.814 of 2009 and etc., batch,the Division Bench has held that the decision of the authority todispense with enquiry under Section 5A invoking urgency clause couldbe challenged not only on the ground of mala fide and colourableexercise of power but also on the ground of non-application of mind.In fact in the decision reported in (2002) 4 SCC 160, the Hon'bleApex Court has held that non-application of mind is also one of theground on which challenge could be made for invoking emergencyprovision under Section 17, thereby dispensing with 5A enquiry.Paras 12 to 18 of the judgement in W.A.No.814 of 2009 are usefullyextracted here under:-"12. The power under Sub-sections (1) & (2) ofSection 17 relates to the directions by the appropriateGovernment to the Collectors to take possession of theland. If the Government invokes the provisions of eitherSection 17(1) or Section 17(2) and in the opinion theenquiry under Section 5-A should be dispensed with, it cando so under Section 17(4). A combined reading of Section https://hcservices.ecourts.gov.in/hcservices/ 17(1),(2) & (4) would show that the Government should onlysatisfy itself as to the invocation of the provisions.13. While dealing with the power of the Government toinvoke the urgency clause under Section 17(1) orunforeseen emergency under Section 17(2) and theinvocation of power under Section 17(4) to dispense withthe enquiry under Section 5-A of the Act, the SupremeCourt in Nandeshwar Prasad and Anr. v. State of U.P., andOrs. (1964) 3 SCR 425. In that case, the Supreme Court hadobserved as follows:It will be seen that Section 17(1) gives power to theGovernment to direct the Collector, though no award hasbeen made under Section 11, to take possession of anywaste or arable land needed for public purpose and suchland thereupon vests absolutely in the Government freefrom all encumbrances. If action is taken under Section 17(1), taking possession and vesting which are provided inSection 16 after the award under Section 11 areaccelerated and can take place fifteen days after thepublication of the notice under Section 9. Then comesSection 17(4) which provides that in case of any land towhich the provisions of Sub-section (1) are applicable,the Government may direct that the provisions of Section5-A shall not apply and if it does so direct, adeclaration may be made under Section 6 in respect of theland at any time after the publication of the notificationunder Section 4(1). It will be seen that it is notnecessary even where the Government makes a directionunder Section 17(1) that it should also make a directionunder Section 17(4). If the Government makes a directiononly under Section 17(1) the procedure under Section 5-Awould still have to be followed before a notificationunder Section 6 is issued, though after that procedure hasbeen followed and a notification under Section 6 is issuedthe Collector gets the power to take possession of theland after the notice under Section 9 without waiting forthe award and on such taking possession the land shallvest absolutely in Government free from all encumbrances.It is only when the Government also makes a declarationunder Section 17(4) that it becomes unnecessary to takeaction under Section 5-A and make a report thereunder. Itmay be that generally where an order is made under Section17(1), an order under Section 17(4) is also passed; but inlaw it is not necessary that this should be so. It willalso be seen that under the Land Acquisition Act an orderunder Section 17(1) or Section 17(4) can only be passedwith respect to waste or arable land and it cannot bepassed with respect to land which is not waste or arable https://hcservices.ecourts.gov.in/hcservices/ and on which buildings stand.14. Placing reliance on the above judgement, the SupremeCourt in Essco Fabs Private Limited v. State of Haryana2008 (14) Scale 495 has observed in paragraph-33 asfollows:From the above observations, it is clear that even incases falling under or covered by Sub-sections (1) and (2)of Section 17 of the Act and the Government intends toacquire land in cases of 'urgency' or 'unforeseenemergency', 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 only whenthe Government also makes a declaration under Sub-section(4) of Section 17 that it becomes unnecessary to takerecourse to procedure under Section 5-A of the Act.15. A similar question came up for consideration beforethe Supreme Court in Union of India v. Mukesh Hans (2004)8 SCC 14 and the Supreme Court had observed as follows:A careful perusal of this provision which is an exceptionto the normal mode of acquisition contemplated under theAct shows mere existence of urgency or unforeseenemergency though is a condition precedent for invokingSection 17(4) that by itself is not sufficient to directthe dispensation of 5A inquiry. It requires an opinion tobe formed by the concerned government that along with theexistence of such urgency or unforeseen emergency there isalso a need for dispensing with 5A inquiry which indicatesthat the Legislature intended that the appropriategovernment to apply its mind before dispensing with 5Ainquiry. It also indicates the mere existence of qanurgency under Section 17(!) or unforeseen emergency underSection 17(2) would not be themselves be sufficient fordispensing with 5A inquiry. If that was not the intentionof the Legislature then the latter part of Sub-section (4)of Section 17 would not have been necessary and theLegislature in Section 17(1) and (2) itself could haveincorporated that in such situation of existence ofurgency or unforeseen emergency automatically 5A inquirywill be dispensed with. But then that is not language ofthe Section which in our opinion requires the appropriateGovernment to further consider the need for dispensingwith 5A inquiry in spite of the existence of unforeseenemergency. This understanding of ours as to therequirement of an application of mind by the appropriateGovernment while dispensing with the 5A inquiry does not https://hcservices.ecourts.gov.in/hcservices/ mean that in every case when there is an urgencycontemplated under Section 17(1) and unforeseen emergencycontemplated under Section 17(2) exists that by itselfwould not contain the need for dispensing with 5A inquiry.It is possible in a given case the urgency noticed by theappropriate Government under Section 17(1) or theunforeseen emergency under Section 17(2) itself may be ofsuch degree that it could require the appropriateGovernment on that very basis to dispense with the inquiryunder Section 5A but then there is a need for applicationof mind by the appropriate Government that such an urgencyfor dispensation of the 5A inquiry is inherent in the twotypes of urgencies contemplated under Section 17(1) and(2) of the Act.In fact the above provision also has been relied upon bythe Supreme Court in Essco Fabs case (supra) andultimately, in paragraph-45, the Supreme Court hadobserved as follows:In our opinion, therefore, the contention of learnedCounsel for the respondent authorities is not well foundedand cannot be upheld that once a case is covered by Sub-section (1) or (2) of Section 17 of the Act, Sub-section(4) of Section 17 would necessarily apply and there is noquestion of holding inquiry or hearing objections underSection 5A of the Act. Acceptance of such contention orupholding of this argument will make Sub-section (4) ofSection 17 totally otiose, redundant and nugatory.16. A combined reading of the above three judgements wouldshow that whenever the Government invokes urgency clauseunder Section 17(1) or unforeseen emergency under Section17(2), it can dispense with the enquiry under Section 5-Aof the Act by specifically invoking the provisions ofSection 17(4). The only requirement for the Government isthat they should apply their mind and satisfy themselvesfor the invocation of the urgency or unforeseen emergency,as the case may be. This satisfaction need not necessarilybe indicated in the notification as such, as has been heldby the Supreme Court in Nandeshwar Prasad case (supra), asit would be sufficient if the records borne out suchsatisfaction.17. The law on the discretion of the Government todispense with the enquiry under Section 5-A beingstatutory in nature, it should be exercised on reasonablegrounds and cannot lapse into arbitrariness or caprice.The State authorities must have specific satisfaction https://hcservices.ecourts.gov.in/hcservices/ based on the relevant material, rule and genuine urgencyexisted and that any invocation of the urgency clausewould not defeat the very purpose of the acquisition. TheCourt is bound to satisfy itself as to whether thediscretion exercised by the Government could be tested onreasonableness and on application of mind to the situationthat has warranted for invocation of the clause.18. How far the power of judicial review could beexercised is yet another question to be considered. As hasbeen held by the Supreme Court in the judgemnt in PrathibaNema and Ors. v. State of M.P. and Ors. (2003) 10 SCC 626,it would be unjust and inappropriate to strike down thenotification on the basis of a nebulous plea, in exerciseof writ jurisdiction under Article 226 of the Constitutionof India. In fact, in Union of India and Ors. v. KrishanLal Arneja and Ors. (2004) 8 SCC 453, the Supreme Courthas held that the opinion of the Government is entitled togreat weight unless it is vitiated by mala fide andcolourable exercise of power. In the judgement in FirstLand Acquisition Collector and Ors. v. Nirodhi PrakashGangoli and Anr. (2002) 4 SCC 160, the Supreme Court hasheld that the decision of authority to dispense with theenquiry under Section 5-A and invoking urgency clause canbe challenged only on the ground of non-application ofmind and mala fides. In Nandeshwar Prasad and Anr v. Stateof U.P. And Ors. (1964) 3 SCR 425, the Supreme Court hasheld that there should be application of mind to the factsof the case with special reference to the concession ofSection 5-A enquiry under the Act. Whether the discretionis exercised reasonably supported by materials or notdepends upon the facts of each case."9.14. Thus, considering the over all circumstances andconsidering the fact that the entire file perused by me does notdisclose an application of mind by any of the authorities, why anemergency provision under Section 17 was invoked thereby dispensingwith an enquiry under Section 5A of the Act, even though the projectis of public importance, this Court is constrained to interfere withthe action of the respondents, dispensing with the 5A enquiry.10. Yet another argument that was made on the side of thepetitioners is that the proposal of the construction of the overbridge was made long back and the urgency clause was invoked only inthe year 2007. As rightly contended by the learned GovernmentAdvocate and the learned counsel appearing for the Corporation, theproposal seems to have been made after due traffic study byappointing expert consultant and the proposal was submitted to theGovernment and the Government was pleased to approve the same in https://hcservices.ecourts.gov.in/hcservices/ G.O.Ms.No.80 dated 11.06.2007. Absolutely, there is no delay. Evenif there is a delay, in the given circumstances of the case thedelay is well explained. Para 21 of the judgement of the DivisionBench referred to above is usefully extracted here under:-" 21. It was also argued that the proposal forconstruction of flyover was made in the year 1997 and thatthe urgency clause has been invoked only in the year 2008.We may point out that the delay in the invocation ofemergency provision by itself would not vitiate the entireacquisition proceedings. On the given facts andcircumstances of the case, though a proposal was mooted inthe year 1997, the same did not materialise. Only after adetailed study was conducted sometime during the year2008, it came to be known to the Government as well as theCorporation of Chennai as to the heavy increase of trafficon the roads in question. Hence reports were called forfrom Anna University and M.s L& T Ramboll and on the basisof the reports, the Corporation of Chennai decided toconstruct a flyover on its own road and only for thepurpose of laying parallel service lanes, had approachedthe Government for acquisition. Reports were placed beforethe Government during the year 2008 and on satisfactionthe Government approved the proposal by sanctioning 80% ofthe amount to be tendered initially and thereafter,decided to invoke the emergency provisions by dispensingwith 5-A enquiry. Even, otherwise, if there is any delayin the initiation of proceedings, the period to notify theacquisition should be considered only after the reports ofAnna University and M/s L&T Ramboll were received. (Seethe judgment in First Land Acquisition Collector andothers v. Nirodhi Prakash Gangoli and another, (2002) 4SCC 160.) "10.1. Thus there is no delay as contended by the learnedcounsel for the petitioners and the delay if any is well explained.11. For the reasons stated above, the proceedings of therespondents made in G.O.Ms.No.176, MAWS Department dated 14.12.2007under Section 6 of the Land Acquisition Act are quashed and the writpetitions stands allowed. Consequently, connected miscellaneouspetitions are closed. No costs. https://hcservices.ecourts.gov.in/hcservices/

12. Before, parting with the matter, I place on record myappreciation on the counsel Mr.B.Harikrishnan, who has renderedvaluable assistance by his well placed arguments through hiseloquence and in placing several decisions of the Hon'ble ApexCourt.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarpgpTo1.The Director of Municipal Administration& Water Supply, Fort St.George, Chennai.2.The District Collector, Chennai District Singaravelan Maligai, First Lane Beach, Chennai.3.The Tahsildar (Land Acquisition) Fort Tondiarpet Taluk, Chennai – 600003.4.The Commissioner, Corporation of Chennai, Rippon Buildings, Park Town, Chennai – 600003.5.The State of Tamilnadu represented by the Secretary to Government, Revenue Department, Fort St.George, Madras – 9.+1cc to Mr.V.Bharathidasan, Advocate Sr 69602+1cc to Govt. Pleader Sr 69541+1cc to Mr.E.Jayasangar, Advocate Sr 69376AKR(CO)km/12.1.W.P.Nos.12467 & 13930 of 2008