,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;L 03/04/2007 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;rp Mizah; 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 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 mjid Vw;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;/ bgWeh;
Mizah;. brd;id khefuhl;rp. brd;id?3 bghJ 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?9 Cuf 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 on 21.08.2007 refers about the advice tendered by the minister concerned 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;id khefuhl;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 and Commissioner of Land Administration dated 25.09.2007 addressed to The Collector, Chennai is extracted here under:-
2.In this office letter second cited the above proposal under
section 4(1) and Draft Declaration under section 6 sent by you, has been recommend to Government for approval and causing publication in the Tamil Nadu Government Gazette and in two Tamil Dailies under urgency clause 17(2) of Land Acquisition Act.
3. In this connection I request you to get the Land Reforms certificate from Assistant Commissioner (LR) and send it to Government directly under intimation to this office.
Yours faithfully, Sd/., R.Mahendravel for 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, dated 23.11.2007 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;/1853-2.5 kw;Wk; 1854-4.5 kw;Wk; rpytw;wpy; 2 kid kw;Wk; 0224 rJu mo (my;yJ) 5024 rJu 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; Jiw muR 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;il fj;jpthf;fk; beL";rhiyapy; kw;Wk; fhf;nud; ngrpd; rhiyapy; ,uapy;nt re;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; bjhifahd U:/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;l fojj;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; 2fp 0224 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;rp nfl;Lbfhz;ljw;fpz';f. epy vLg;g[r; rl;lk; mtrug;gphpt[ 17(2)d; fPH; ifafg;gLj;j cj;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;/ ??????????????????????????????????????????????????????????????????????????????????????????????
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;go 2007k; Mz;Lf;fhd epykjpg;g[ xU rJu mo xd;Wf;F U:/492-
??????????????????????????????????????????????????????????????????????????????????????????????
ifafg;gLj;jg;gl cs;s 2fp/0224 r/mo my;yJ 5024 r/mo epyj;jpd; kjpg;g[ U:/24.71.808-? ?????????????????????????????????????????????????????????????????????????????????????????????? ifafg;gLj;j cs;s g[yj;jpy; cs;s fl;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;il tl;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) epy eph;thf Mizah; nfl;Lf; bfhz;Ls;shh;/ 4/ nkw;Fwpj;j NH;epiyapy;. rpwg;g[ Mizah; kw;Wk; epy eph;thf MizauJ fUj;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; nfhl;il ? jz;ilahh;ngl;il tl;lk;. jz;ilahh;ngl;il fpuhkk; g[y vz;/1853-2.5 kw;Wk; 1854-4.5 (k) rpytw;wpy; 2fp 0224 r/m/ (m) 5024 r/m/ gug;gst[ epyj;ij epy vLg;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?5 Mizah;. 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 Supply Department, dated 03.12.2007 which is extracted here under:-
"G.O.(Ms)No.165 Dated:03.12.2007 Read: 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 dated 24.08.2007. 3. From the Special Commissioner and Commissioner of Land Administration, 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 Government accorded administrative sanction for acquiring an extent of 2 Grounds 0224 Sq.ft. (or) 5024 Sq.ft. of lands in S.No.1853/2, etc., at Tondiarpet village, Fort-Tondiarpet Taluk, Chennai District for the formation of Over Bridge at Korukupet Kathivakkam High Road, Cocrin Basin Road Railway Level Crossing Scheme under urgency provisions
Section 17(2) of the Land Acquisition Act,1894.
2. The Government approve the proposal of the Collector of Chennai submitted in her letter second read above as recommended by the Special Commissioner and Commissioner of Land Administration in the reference third read above for acquisition of lands in S.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 Korukupet Kathivakkan High Road, Cocrin Basin Road Railway Level Crossing in Tondiarpet Village, Fort-Tondiarpet Taluk, Chennai District.
3. The Draft Notification under
section 4(1) of the Land Acquisition Act, 1894 submitted by the Collector, Chennai District in her letter second read above are approved and will be published in the Tamil Nadu Government Gazette Extra Ordinary and in two Daily Newspapers (Tamil and English) having wide circulation in Chennai District.
4. The works Manager, Government Central Press, Chennai is requested to publish the appended Notification in the next issue of Tamil Nadu Government Gazette Extra Ordinary and he is requested to furnish 10 copies of the Gazette containing the Notification to the Government in Municipal Administration and Water Supply Department.
5. Four copies of the Notification in Tamil and English are forwarded to the Director of Information and Public Relations, Chennai-9. He is requested to arrange for their publication in Daily Newspapers both in Tamil and English having wide circulation in the Chennai District. The bill of cost for publication of the Notification in dailies may be sent to Collector, Chennai District.
6. The Collector, Chennai District is requested to instruct the Land Acquisition Officer to cause the publication of the substance of the Notification at convenient places in the Locality in Chennai District and also intimate to the Government by Telex the last dates of 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 dated 03.12.2007 refers about G.O.Ms.No.80 dated 11.06.2007, Collector's proceedings dated 24.08.2007, Letter of the Special Commissioner and Commissioner of Land Administration dated 25.09.2007 addressed to the Collector and G.O.Ms.No.158 dated 23.11.2007. In none of the G.O's or proceedings there is any reference why the emergency provision was invoked dispensing with Section 5A enquiry. Mere existence of urgency alone may not be condition precedent for invoking Section 17 of the Act dispensing with an enquiry contemplated under Section 5A of the Act. As held by the Hon'ble Apex Court in the judgement reported in 2004 (8) SCC 14, it requires an opinion to be formed by the concerned Government that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with 5A enquiry. The Government has to apply its mind before invoking Section 17 of the Act. The said power cannot be, as held by the Hon'ble Apex Court lightly resorted to except, if it requires an immediate possession of land, proposed to be acquired for public purpose. Though, the power of the Court is very limited in such circumstances, the said exercise must be scrupulously followed when invoking emergency provision under Section 17 of the Act.
9.13. In fact, the decision cited on behalf of the respondents namely judgement in W.A.No.814 of 2009 and etc., batch, the Division Bench has held that the decision of the authority to dispense with enquiry under Section 5A invoking urgency clause could be challenged not only on the ground of mala fide and colourable exercise 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'ble Apex Court has held that non-application of mind is also one of the ground on which challenge could be made for invoking emergency provision under Section 17, thereby dispensing with 5A enquiry. Paras 12 to 18 of the judgement in W.A.No.814 of 2009 are usefully extracted here under:-
"12. The power under Sub-sections (1) & (2) of Section 17 relates to the directions by the appropriate Government to the Collectors to take possession of the land. If the Government invokes the provisions of either
Section 17(1) or
Section 17(2) and in the opinion the enquiry under Section 5-A should be dispensed with, it can do so under
Section 17(4). A combined reading of
Section 17(1),(2) & (4) would show that the Government should only satisfy itself as to the invocation of the provisions.
13. While dealing with the power of the Government to invoke the urgency clause under
Section 17(1) or unforeseen emergency under
Section 17(2) and the invocation of power under
Section 17(4) to dispense with the enquiry under Section 5-A of the Act, the Supreme Court in Nandeshwar Prasad and Anr. v. State of U.P., and Ors. (1964) 3 SCR 425. In that case, the Supreme Court had observed as follows:
It will be seen that
Section 17(1) gives power to the Government to direct the Collector, though no award has been made under
Section 11, to take possession of any waste or arable land needed for public purpose and such land thereupon vests absolutely in the Government free from all encumbrances. If action is taken under
Section 17(1), taking possession and vesting which are provided in Section 16 after the award under
Section 11 are accelerated and can take place fifteen days after the publication of the notice under Section 9. Then comes
Section 17(4) which provides that in case of any land to which the provisions of Sub-section (1) are applicable, the Government may direct that the provisions of Section 5-A shall not apply and if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the publication of the notification under
Section 4(1). It will be seen that it is not necessary even where the Government makes a direction under
Section 17(1) that it should also make a direction under
Section 17(4). If the Government makes a direction only under
Section 17(1) the procedure under Section 5-A would still have to be followed before a notification under Section 6 is issued, though after that procedure has been followed and a notification under Section 6 is issued the Collector gets the power to take possession of the land after the notice under Section 9 without waiting for the award and on such taking possession the land shall vest absolutely in Government free from all encumbrances. It is only when the Government also makes a declaration under
Section 17(4) that it becomes unnecessary to take action under Section 5-A and make a report thereunder. It may be that generally where an order is made under
Section 17(1), an order under
Section 17(4) is also passed; but in law it is not necessary that this should be so. It will also be seen that under the Land Acquisition Act an order under
Section 17(1) or
Section 17(4) can only be passed with respect to waste or arable land and it cannot be passed with respect to land which is not waste or arable and on which buildings stand.
14. Placing reliance on the above judgement, the Supreme Court in Essco Fabs Private Limited v. State of Haryana 2008 (14) Scale 495 has observed in paragraph-33 as follows:
From the above observations, it is clear that even in cases falling under or covered by Sub-sections (1) and (2) of Section 17 of the Act and the Government intends to acquire land in cases of 'urgency' or 'unforeseen emergency', it is still required to follow procedure under Section 5-A of the Act before issuance of final notification under Section 6 of the Act. It is only when the Government also makes a declaration under Sub-section (4) of Section 17 that it becomes unnecessary to take recourse to procedure under Section 5-A of the Act.
15. A similar question came up for consideration before the 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 exception to the normal mode of acquisition contemplated under the Act shows mere existence of urgency or unforeseen emergency though is a condition precedent for invoking
Section 17(4) that by itself is not sufficient to direct the dispensation of 5A inquiry. It requires an opinion to be formed by the concerned government that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with 5A inquiry which indicates that the Legislature intended that the appropriate government to apply its mind before dispensing with 5A inquiry. It also indicates the mere existence of qan urgency under Section 17(!) or unforeseen emergency under
Section 17(2) would not be themselves be sufficient for dispensing with 5A inquiry. If that was not the intention of the Legislature then the latter part of Sub-section (4) of Section 17 would not have been necessary and the Legislature in
Section 17(1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically 5A inquiry will be dispensed with. But then that is not language of the Section which in our opinion requires the appropriate Government to further consider the need for dispensing with 5A inquiry in spite of the existence of unforeseen emergency. This understanding of ours as to the requirement of an application of mind by the appropriate Government while dispensing with the 5A inquiry does not mean that in every case when there is an urgency contemplated under
Section 17(1) and unforeseen emergency contemplated under
Section 17(2) exists that by itself would not contain the need for dispensing with 5A inquiry. It is possible in a given case the urgency noticed by the appropriate Government under
Section 17(1) or the unforeseen emergency under
Section 17(2) itself may be of such degree that it could require the appropriate Government on that very basis to dispense with the inquiry under Section 5A but then there is a need for application of mind by the appropriate Government that such an urgency for dispensation of the 5A inquiry is inherent in the two types of urgencies contemplated under
Section 17(1) and (2) of the Act.
In fact the above provision also has been relied upon by the Supreme Court in Essco Fabs case (supra) and ultimately, in paragraph-45, the Supreme Court had observed as follows:
In our opinion, therefore, the contention of learned Counsel for the respondent authorities is not well founded and 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 no question of holding inquiry or hearing objections under Section 5A of the Act. Acceptance of such contention or upholding of this argument will make Sub-section (4) of Section 17 totally otiose, redundant and nugatory.
16. A combined reading of the above three judgements would show that whenever the Government invokes urgency clause under
Section 17(1) or unforeseen emergency under
Section 17(2), it can dispense with the enquiry under Section 5-A of the Act by specifically invoking the provisions of
Section 17(4). The only requirement for the Government is that they should apply their mind and satisfy themselves for the invocation of the urgency or unforeseen emergency, as the case may be. This satisfaction need not necessarily be indicated in the notification as such, as has been held by the Supreme Court in Nandeshwar Prasad case (supra), as it would be sufficient if the records borne out such satisfaction.
17. The law on the discretion of the Government to dispense with the enquiry under Section 5-A being statutory in nature, it should be exercised on reasonable grounds and cannot lapse into arbitrariness or caprice. The State authorities must have specific satisfaction based on the relevant material, rule and genuine urgency existed and that any invocation of the urgency clause would not defeat the very purpose of the acquisition. The Court is bound to satisfy itself as to whether the discretion exercised by the Government could be tested on reasonableness and on application of mind to the situation that has warranted for invocation of the clause.
18. How far the power of judicial review could be exercised is yet another question to be considered. As has been held by the Supreme Court in the judgemnt in Prathiba Nema and Ors. v. State of M.P. and Ors. (2003) 10 SCC 626, it would be unjust and inappropriate to strike down the notification on the basis of a nebulous plea, in exercise of writ jurisdiction under
Article 226 of the Constitution of India. In fact, in Union of India and Ors. v. Krishan Lal Arneja and Ors. (2004) 8 SCC 453, the Supreme Court has held that the opinion of the Government is entitled to great weight unless it is vitiated by mala fide and colourable exercise of power. In the judgement in First Land Acquisition Collector and Ors. v. Nirodhi Prakash Gangoli and Anr. (2002) 4 SCC 160, the Supreme Court has held that the decision of authority to dispense with the enquiry under Section 5-A and invoking urgency clause can be challenged only on the ground of non-application of mind and mala fides. In Nandeshwar Prasad and Anr v. State of U.P. And Ors. (1964) 3 SCR 425, the Supreme Court has held that there should be application of mind to the facts of the case with special reference to the concession of Section 5-A enquiry under the Act. Whether the discretion is exercised reasonably supported by materials or not depends upon the facts of each case."
9.14. Thus, considering the over all circumstances and considering the fact that the entire file perused by me does not disclose an application of mind by any of the authorities, why an emergency provision under Section 17 was invoked thereby dispensing with an enquiry under Section 5A of the Act, even though the project is of public importance, this Court is constrained to interfere with the action of the respondents, dispensing with the 5A enquiry.
10. Yet another argument that was made on the side of the petitioners is that the proposal of the construction of the over bridge was made long back and the urgency clause was invoked only in the year 2007. As rightly contended by the learned Government Advocate and the learned counsel appearing for the Corporation, the proposal seems to have been made after due traffic study by appointing expert consultant and the proposal was submitted to the Government and the Government was pleased to approve the same in G.O.Ms.No.80 dated 11.06.2007. Absolutely, there is no delay. Even if there is a delay, in the given circumstances of the case the delay is well explained. Para 21 of the judgement of the Division Bench referred to above is usefully extracted here under:-
" 21. It was also argued that the proposal for construction of flyover was made in the year 1997 and that the urgency clause has been invoked only in the year 2008. We may point out that the delay in the invocation of emergency provision by itself would not vitiate the entire acquisition proceedings. On the given facts and circumstances of the case, though a proposal was mooted in the year 1997, the same did not materialise. Only after a detailed study was conducted sometime during the year 2008, it came to be known to the Government as well as the Corporation of Chennai as to the heavy increase of traffic on the roads in question. Hence reports were called for from Anna University and M.s L& T Ramboll and on the basis of the reports, the Corporation of Chennai decided to construct a flyover on its own road and only for the purpose of laying parallel service lanes, had approached the Government for acquisition. Reports were placed before the Government during the year 2008 and on satisfaction the Government approved the proposal by sanctioning 80% of the amount to be tendered initially and thereafter, decided to invoke the emergency provisions by dispensing with 5-A enquiry. Even, otherwise, if there is any delay in the initiation of proceedings, the period to notify the acquisition should be considered only after the 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.) "
10.1. Thus there is no delay as contended by the learned counsel for the petitioners and the delay if any is well explained.
11. For the reasons stated above, the proceedings of the respondents made in G.O.Ms.No.176, MAWS Department dated 14.12.2007 under Section 6 of the Land Acquisition Act are quashed and the writ petitions stands allowed. Consequently, connected miscellaneous petitions are closed. No costs.
12. Before, parting with the matter, I place on record my appreciation on the counsel Mr.B.Harikrishnan, who has rendered valuable assistance by his well placed arguments through his eloquence and in placing several decisions of the Hon'ble Apex Court.
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1.The Director of Municipal Administration & Water Supply, Fort St.George, Chennai.
2.The District Collector, Chennai District Singaravelan Maligai, First Lane Beach, Chennai.
K.VENKATARAMAN, J pgp
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.
W.P.Nos.12467 & 13930 of 2008 Dated :17.12.2009