IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.09.2009 CORAM THE HONOURABLE MR.H.L.GOKHALE, THE CHIEF JUSTICE AND THE HONOURABLE MR.JUSTICE D.MURUGESAN W.A.Nos.825 to 832 of 2009, 814 to 821 of 2009 and W.P.Nos.17786, 16792, 16793, 16552 of 2009 & 29461, 29453 & 29454 of 2008 The Commissioner Corporation of Chennai ..Appellant in WA.Nos.825, Ripon Buildings 826, 827, 828/09 Chennai 600 003 ..7th Respondent in WA.No. 814/09 The Chief Engineer, Buildings & Bridges, Public Information Officer, Corporation of Chennai, Rippon Buildings, ..Appellant in WA.Nos.829, Chennai-600 003. 830, 831 & 832/09 State of Tamil Nadu rep. by its Principal Secretary to Government of Tamil Nadu, Municipal Administration and Water Supply Department (MC-1) Government of Tamil Nadu, Fort St.George, Chennai-600 009. ..1st Appellant in WA.Nos.814, 815, 816 & 821/09 ..Appellant in WA.No.817, 818, 819 & 820/09 The Tahsildar, Mylapore-Triplicane Taluk Chennai District, Chennai-600 028. ..2nd Appellant in WA.Nos.814, 815 & 816/09 https://hcservices.ecourts.gov.in/hcservices/ G. Ganapathy ..Petitioner in WP.Nos.17786 & 16552/09 J. Raviraj ..Petitioner in WP.No.16792/09 Murali Ramanathan ..Petitioner in WP.No.16793/09 M/s. Ani Constructions (P) Ltd., rep. by its Authorised agent, Mr. M. Subaiya, Cenotaph Road, Chennai-18. ..Petitioner in WP.No.29461/08 D. Navin ..Petitioner in WP.No.29453/08 K. Prabhuram ..Petitioner in WP.No.29454/08 -Vs- 1. C.K.Ramachandran 2. Rajeev Gopalakrishnan ..2nd Respondent in WA.Nos. 815, 821/09 3. V.Sridhar ..3rd Respondent in WA.No. 816/09 4. K.L.Palaniappan 5. V.Srikanth rep.by his POA G.K.Vaidyanathan 6. Mrs.Rekha Lakshman rep.by her Power of Attorney Agent G.L.Srinivasan 7. 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 & 815/09 1. M. Raghuraman 2. R. Mahalakshmi ..1st & 2nd Respondents in WA.Nos. 827 & 816/09 C.K. Ramasamy ..1st Respondent in WA.Nos.828 & 821/09 Srinivas Theatres (P) Ltd., rep. by Director G.V. Ramakrishnan, No.8/6, Saradambal Street, ..1st Respondent in WA.Nos.829 T.Nagar, Chennai-17. & 818/09 R. Shanmugam ..1st Respondent in WA.Nos.830 & 820/09 R. Jambulingam ..1st Respondent in WA.No.831/09 G. Ganapathy ..1st Respondent in WA.Nos.832 & 817/09 1. C.K. Ramachandran 2. Rajeev Gopalakrishnan 3. V.Sridhar 4. K.L. Palaniappan 5. V. Srikanth ..Respondents 1 to 6 in WA.No.814/09 1. Gunalakshmi 2. Ravi Raj 3. Sumathi Arul ..Respondents 1 to 3 in WA.No.819/09 State of Tamil Nadu rep. by its Principal 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 Taluk Chennai District, Chennai-600 028. ..3rd Respondents in WA.Nos.826 & 828/09 ..4th Respondent in WA.No.827/09 ..2nd Respondent in WA.No.821/09 The Corporation of Chennai Works Department, Rep. by The Commissioner, Rippon Building, Chennai-600 003. ..1st Respondent in WP.No.17786/09 The Chennai Metropolitan Water Supply and Sewerage Board, Rep. by its Chairman, ..2nd Respondent in WP.Nos.17786, No.1, Pumping Station Road, 16792, 16793, 16552/09 Chennai-600 002. Rajesh Lakhoni ..3rd Respondent in WP.No.17786/09 The Chief Engineer, Buildings & Bridges, Corporation of Chennai, Rippon Buildings, ..1st Respondent in WP.Nos.16792, Chennai-600 003. 16793 & 16552/09 The Commissioner, Corporation of Chennai, Rippon Buildings, ..3rd Respondent in WP.Nos.16792, Chennai-600 003. 16793, 16552/09 Gammon 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. by The 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 & 29454/08 The 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.819/09 Appeals filed under Clause 15 of the Letters Patent against the order 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 of India, Petition praying this Court to issue a Writ of (1) calling for the records of the I respondent relating to its Notification G.O.Ms.No.172 Municipal Administration and Water Supply Department (MC1) dated 09.09.2008 published in the Tamilnadu Government Gazette Extraordinary Part II Section 2, No.272 dated 09.09.2008 under Section 4(1) of the Land Acquisition Act read with section 17 (2) and (4) of the Land Acquisition Act and the declaration under Section 6 of the Land Acquisition Act, G.O.Ms.No.184, Municipal Administration and Water Supply Department (MC1) dated 24.09.2008 published in the Tamil Nadu Government Gazette Extraordinary Part-II, Section 2, No.282, dated 24.09.2008, in so far they relate to may land measuring an area of 0384 Sq.ft in (a) R.S.No.3884-263, (newly subdivided as R.S.No.3884-318, Chennai District, in the name of Brookland Manor Apartments, and undivided shares in the land measuring area of 0384 Sq.ft in R.S.No.3884-264 (newly subdivided R.S.No.3884-319) in the names of V. Srikanth and V. Sridhar comprised in “Brookland Manor Apartments” Chennai District, Mylapore, Triplicane Taluk No.3, Mylapore Village owned and possessed by the petitioners comprised in Old 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 Village owned and possessed by the petitioner comprised in Door.5/10, Turn Bulls Road, Nandanam, Chennai - 600 035 and to quash the aforesaid notification 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 as they relate to the petitioner's land measuring an area of 0408 Sq.ft in R.S.No.3884-259 (newly subdivided as R.S.No.3884-316), Chennai District, Mylapore - Triplicane Taluk No.3, Mylapore Village, owned and possessed by the petitioner comprised in Door No.6/8, Turn Bulls Road, Nandanam, Chennai-600 035 and to quash the aforesaid notification and aforesaid declaration (in W.P.No.24476/2008) (d) in so far as the relative petitioner's land measuring an area of 0480 Sq.ft in R.S.No.3884-256 (newly subdivided as R.S.No.3884-315) Chennai District, Mylapore - Triplicane Taluk No.3, Mylapore Village, owned and possessed by the petitioner comprised in Door No.6/7, Turn Bulls Road, Nandanam, Chennai-600 035 and to quash the aforesaid notification and aforesaid declaration (in W.P.No.25875/2008) W.P.Nos.24569/2008, 24570/2008, 24560/2008 & 24554/2008: Petitions praying this Court be pleased to stay all further proceedings including taking of possession pursuant to the Notification made in Tamil Nadu Government Gazette Extraordinary No.272 dated 09.09.2008 consequential Notification No.282 dated 24.09.2008 relating to land acquisition 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 in the order dated 20.08.2009 issued by the Corporation of Chennai, Works Department, Chennai and quash the same and consequently issue an appropriate directions directing the respondents to forbear from harassing the petitioner in (W.P.No.17786/2009) (2) Mandamus directing the respondents/3rd respondent in W.P.No.16552/2009 to forbear from carrying on construction activity of the grade separator between Cenotaph Road and Turn Bulls Road in such a manner as to affect motorable access of the petitioner to his residence and to immediately restore the storm water drainage system to proper use (in W.P.Nos.16792/2009, 16793/2009 & 16552/2009) (3) Certiorari calling for the records of the 1st respondent in Land Acquisition proceedings to quash in Notification made thereon under Section 4(1) and Section 6 of the Land Acquisition Act in Tamil Nadu Government Research Extraordinary No.272 dated 09.09.2008 consequential Notification No.282 dated 24.09.2008 respectively relating 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.Raman 832 of 2009 Advocate General assisted by Mr.V.Bharathidasan https://hcservices.ecourts.gov.in/hcservices/ For Appellants in W.A.Nos.814 to : Mr.J.Raja Kalifullah 821 of 2009 & on behalf of the Government Pleader State in W.A.Nos.825 to 832 of 2009 & W.P.Nos.16552, 16792, 16793 & 17786 of 2009 For 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 2008 For Petitioners in W.P.Nos. : Mr.T.Mohan for 16552, 16792, 16793 of 2009 M/s Vijayalakshmi Rajarathinam For Petitioner in W.P.No. : Mr.Srinivasan for 17786 of 2009 M/s Vijayalakshmi Rajarathinam For 1st respondent in W.A.Nos. : Mr.V.T.Gopalan 829, 830, 832, 817, 818 & 820 Senior Counsel for of 2009 Mr.K.Abudukumar Rajarathinam For 1st respondent in W.A.Nos. : Mr.K.V.Sanjeev Kumar 826, 827, 828 & 831 of 2009 For 4th respondent in WP.Nos. : Mr.Krishna Ravindran 16792 , 16793 & 16552/09 JUDGMENT D.MURUGESAN, J. The writ appeals, at the instance of the Corporation of Chennai as well as the official respondents of the State, arise out of the common order passed by the learned single Judge dated 5.5.2009 allowing Writ Petition Nos.26112 of 2008 etc., and the writ petitions are at the instance of the land owners/persons interested in the lands sought to be acquired. As the grounds of challenge to the land acquisition proceedings in both the writ appeals and writ petitions are common, they are disposed of by this judgment. 2. All the above writ appeals and writ petitions concern with the notification made under Section 4(1) read with Section 17(2) of the Land Acquisition Act, 1894 in G.O.Ms.No.172, Municipal Administration and Water Supply (MC1) Department dated 9.9.2008 and published in the Tamil Nadu Government Gazette Extraordinary Part II on 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, Municipal Administration and Water Supply (MC1) Department dated 24.9.08 and published in the Tamil Nadu Government Gazette Extraordinary Part II on the same date. 3. In order to decongest and regulate the heavy flow of traffic, the Government through the Corporation of Chennai are implementing schemes for construction of flyovers in the roads which are prone to heavy traffic. As a part of such initiative, studies were conducted and a proposal was mooted for construction of a flyover at the junction of Pasumpon Muthuramalinga Thevar Salai and Turn Bulls Road in the year 1997. The said proposal could not be implemented for certain reasons. Over the period, a steady increase in volume of traffic during the peak hours was noticed at Cenotaph Road followed by Kotturpuram Road, which is also known as Turn Bulls Road. Therefore, the services of the Division of Traffic Engineering of the College of Engineering, Anna University and M/s L&T Ramboll were sought. Study reports were submitted to the Government accordingly. The earlier proposal to construct a flyover at the junction of Pasumpon Muthuramalinga Thevar Salai and Turn Bulls Road was also studied by Anna University as well as by M/s L&T Ramboll and the report suggested for construction of a flyover at the junction of Cenotaph Road and Turn Bulls Road. The road on which the flyover was proposed to be constructed belongs to the Corporation. While such flyover is constructed, the Corporation is also obligated to provide parallel service lanes on both sides of the road for free flow of traffic as well as to provide access to the adjacent residents. In pursuance of the report, the Government decided to construct a flyover along Cenotaph Road and Turn Bulls Road. In order to provide service lanes, certain lands were sought to be acquired urgently. Hence the Government issued notification under Section 4(1) of the Land Acquisition Act, 1894 (for short, "the Act") for acquisition of the lands. While doing so, the Government decided to invoke the urgency clause and accordingly, issued the notification under Section 17(2) of the Act for acquisition of an extent of 18,225 sq.ft., or 7 grounds 1425 sq.ft., of land in as many as 25 survey numbers. By the same notification, the Government also notified the dispensation of enquiry under Section 5-A of the Act in exercise of the power under Section 17(4) of the Act. The said notifications came to be challenged by the writ petitioners before the learned single Judge who, by order dated 5.5.2009, quashed the notifications on the ground that there was no justification for invoking the urgency clause. Aggrieved by the said order, the Corporation of Chennai and the Government have preferred these writ appeals. Some of the writ petitions which were pending before the learned single Judge are also tagged along with the appeals at the request of all the parties concerned. 4. We heard Mr.P.S.Raman, learned Advocate General with Mr.V.Bharathidasan, learned standing counsel for the Corporation of https://hcservices.ecourts.gov.in/hcservices/ Chennai, Mr.J.Raja Kalifullah, learned Government Pleader for the official respondents of the State, Mr.V.T.Gopalan, learned senior counsel with K.Abudukumar Rajarathinam, Mr.S.Ashok Kumar, Mr.K.Sanjeev Kumar, Mr.Srinivasan and Mr.T.Mohan for the respective land owners/persons interested. 5. The bone of contention in the challenge to the notifications is that inasmuch as the proposal for construction of the flyover was made in the year 1997 and there being no progress in the said proposal till 2008, there is absolutely no reason to dispense with the valuable rights of the land owners to make their objections in the enquiry under Section 5-A of the Act. 6. Mr.V.T.Gopalan, learned senior counsel for the land owners would submit that the right under Section 5-A of the Act to make objections is a valuable right and the same cannot be dispensed with except for valid reasons. He would further submit that there is total non-application of mind on the part of the appropriate Government in invoking the urgency clause under Section 17 of the Act. Inasmuch as the proposal mooted in the year 1997 was not given effect to, the same would only indicate that there was no urgency for the Government to invoke the urgency clause. In such event, the notifications are bad. In support of the said contention, the learned senior counsel would heavily rely upon the judgments of the Supreme Court in Essco Fabs Private Limited and another v. State of Haryana and another, 2008 (14) Scale 495 and in Union of India and others v. Mukesh Hans, (2004) 8 SCC 14. He would also submit that the Government issued G.O.Ms.No.1895, Revenue dated 27.8.90 stipulating introduction of Programme Evaluation Review Technique Chart (for short, "the PERT Chart ") for land acquisition under the emergency clause and by that chart, the activities under land acquisition cases under urgency clause are indicated right from preliminary inspection by Tahsildar and conduct of preliminary enquiry upto the submission of final check memo to the Collector for completion of the process within the stipulated period of 360 days. Nevertheless, the Government had taken its own time from the year 1998 and therefore it was not well within its discretion to invoke the urgency clause by dispensing with the valuable rights of the land owners for making objections and being heard in the enquiry under Section 5-A of the Act. 7. Mr.K.Abudukumar Rajarathinam, learned counsel appearing for some land owners would further add that inasmuch as the notifications were issued under Section 17(2) of the Act, which relates to the invocation of emergency provision owing to sudden change in the channel of any navigable river or other unforeseen emergency, the present notifications are bad, as the urgency clause has been invoked for the purpose of formation of service lanes. In the given case, if at 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 separate notifications, one under Section 17(1) and another under Section 17 (4) of the Act and there cannot be simultaneous notifications. Hence the notifications are liable to be quashed. 8. The other respective counsels also adopted the arguments of Mr.V.T.Gopalan and Mr.K.Abudukumar Rajarathinam. 9. Mr.P.S.Raman, learned Advocate General would submit that the satisfaction of the Government to invoke the urgency clause is spelt out not only in the notifications, but also is borne out by records. Though the proposal to construct the flyover was mooted in the year 1998-99, it did not materialise and only after study of traffic flow on the roads in question, such proposal was again mooted in the year 2008, resulting in the Government invoking the urgency clause. As the flyover is constructed above the road that vests in the Corporation, the acquisition of land for the formation of service lanes was necessitated. For a distance of a little over half a kilometre of the constructed bridge, it became necessary to provide the parallel service lanes on both the sides of the road. For the said purpose, approximately 18,225 sq.ft., of land alone is sought to be acquired and unless service lanes are provided immediately, even if the construction of flyover is completed, it would not serve the purpose. Laying of parallel service lanes cannot be dispensed with, as it is absolutely necessary to the adjoining neighbours including the persons objecting to the acquisition apart from free flow of regular traffic. Inasmuch as the records also disclose the reason for invoking the urgency clause, the notifications cannot be questioned on the ground of want of satisfaction by the Government. He would further submit that in any case, the Court can take judicial notice of nature of scheme for invocation of the urgency clause. The scheme being for construction of flyover to decongest the heavy traffic, the construction must be completed without any delay, as otherwise such delay would cause inconvenience to the road users. He would also submit that only the compound walls, a toilet, pump rooms, generator rooms and in one case, an open dining set up by the owner are to be demolished. Apart from this, in one case, a portion of the shop of the building constructed without permission and unauthorised is to be demolished. He would therefore submit that the Government was within their powers to invoke urgency clause on due satisfaction which is borne out by records. 10. We have carefully considered the rival contentions. As far as the requirement of the land for public purpose is concerned, the appropriate Government is the best judge. The power of eminent domain to aquire any land under the provisions of the Act is by now well recognised. Equally relevant is the right of the owners of the land by virtue of Article 300-A of the Constitution of India, that they shall not be deprived of their land except by the authoriy of law 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 the notification issued under Section 4(1) of the Act opposing the acquisition on justifiable grounds. It is a general rule that before a declaration under Section 6 is made, enquiry under Section 5-A must be held. In Union of India and others v. Mukesh Hans (2004) 8 SCC 14, the Supreme Court while considering the objects of Section 5-A of the Act has observed that the limited right given to a owner/person interested in the land under Section 5-A of the Act to object to the acquisition proceedings is not an empty formality and is a substantive right which cannot be taken away, but for good and valid reasons. As the right of the Government in exercise of the power of eminent domain to acquire the land cannot be questioned except for the violation of the provisions of the Act or that such action is malafide, unreasonable or colourable exercise of power, an enquiry under Section 5-A of the Act is the only safeguard for the land owners to oppose the land acquisition on valid grounds. To this extent, the submission of the respective learned counsel for the land owners 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. The exception to the provision of Section 5-A is Section 17 of the Act. For better understanding, the relevant provisions of Section 17 of the Act can be extracted hereunder:- 17.Special powers in cases of urgency.--(1) In cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub-section (1), take possession of any land needed for public purpose. Such land shall thereupon vest absolutely in the Government free from all encumbrances. (2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or ghat station, or of providing convenient connection with or access to any such station, or the appropriate Government considers it necessary to acquire the immediate possession of any land for the purpose of maintaining any structure or system pertaining to irrigation, water supply, drainage, road communication or electricity, the Collector may, immediately after the publication of the notice mentioned in sub- https://hcservices.ecourts.gov.in/hcservices/ section (1) and with the previous sanction of the appropriate Government, enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances: Provided that the Collector shall not take possession of any building or part of a building under this sub-section without giving to the occupier thereof at least forty-eight hours' notice of his intention so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience. (3)..... (3-A).... (3-B).... (4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate 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 date of the publication of the notification under section 4, sub-section (1)." The object of Section 17 appears to be that when the Government exercises the urgency power either under Section 17(1) or under Section 17(2), they form the opinion that the land is needed for public 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, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub-section (1), take possession of any land needed for public purpose. Such land shall thereupon vest absolutely in the Government free from all encumbrances. Section 17(2) relates to the power to invoke urgency clause owing to any sudden change in the channel of any navigable river or other unforeseen emergency, etc. By virtue of Section 17(4), enquiry under Section 5-A may be dispensed with, if in the opinion of the appropriate Government the provisions of sub-section (1) or sub-section (2) are applicable, to such acquisition proceedings. The power of the Government for invoking 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 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 another v. State of U.P., and others, (1964) 3