IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:17.12.2009 CORAM THE HONOURABLE MR. JUSTICE K.VENKATARAMAN W.P. Nos.12467 & 13930 of 2008 & Connected M.P's W.P.No.12467 of 2008 V.Jeevarathinam ... Petitioner. -vs.- 1.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. ... Respondents. Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a writ of Certiorari calling for the records of the First respondent culminating in the Declaration passed vide G.O.No.176 dated 14.12.2007 passed by the First respondent under Section 6 of the Land Acquisition Act, quash the same. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.13930 of 2008 1.K.Ramachandran 2.Mrs.Usha ... Petitioners. -vs.- 1.The State of Tamilnadu represented by the Secretary to Government, Revenue Department, Fort St.George, Madras – 9. 2.The Tahsildar, Fort Tondiarpet, Chennai – 3. ... Respondents. Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a writ of Certiorarified Mandamus calling for the records of the Respondents in G.O.Ms.No.176, MAWS Department dated 14.12.2007 under Section 6 of the Land Acquisition Act and quash the same and consequently direct the Respondents to drop all proceedings for compulsory acquisition of the land of the petitioner. For petitioners : Mr. B.Harikrishnan, for Mr. E.Jayasankar. For Respondents : Mrs. Lita Srinivasan, G.A for R1 to R3. Mr. V.Bharathidasan for R4. C O M M O N O R D E R These two writ petitions have been filed challenging G.O.Ms.No.176, MAWS Department dated 14.12.2007 made under Section 6 of the Land Acquisition Act and for quashing the same and for dropping all acquisition proceedings in respect of the lands of the petitioners. 2. The petitioner in W.P.No.12467 of 2008 are the owners of the property bearing Door No.22, Old No.72, Kathivakkam High Road, Korukkupet, Chennai, and petitioners in W.P.No.13930 of 2008 are owners of the property bearing Door Nos.77 and 78, in the said road. https://hcservices.ecourts.gov.in/hcservices/ 3. The acquisition was for the public purpose and formation of over bridge at Korukkupet, Kathivakkam High Road and Cockrain Basin Road Railway Level Crossing at Tondiarpet village. 4. The petitioner in W.P.No.12467 of 2008 is residing in the first floor and put up shops in the ground floor and let out the same to the third parties. The petitioners in other writ petition viz., W.P.No.13930 of 2008 is running a private matriculation school in their properties. They have been served with Form 6 notice dated 17.4.2008, under Section 9(1) & 10 of the Land Acquisition Act, 1894 (herein after referred to as Act) with regard to the proposed acquisition of their properties. They have submitted their objection. The objection was that there was no previous notice either under Section 4(1) or under Section 5-A of the Act. In W.P.No.12467 of 2008. Apart from the said ground, it was urged on the side of the petitioner that emergency provision under Section 17 should not have been invoked. 5. The main ground of attack of the said notification are:- (1) The notice issued under Section 9(1) and 10 of the Land Acquisition Act is bad in law and does not attract nor does it come within the purview of Section 17 of the Act. (2) Extraordinary powers under Section 17 can be invoked only in exceptional cases or in case of emergency. (3) The need or purpose to construct a bridge did not arise suddenly or overnight or unexpectedly. As such the proposed acquisition can wait for a minimum period within which the objection can 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 invoking emergency Clause under Section 17. (6) In W.P.No.13930 of 2008, it was also contended that there is no need to acquire the land. Only one side of the road where the petitioners runs the school cannot alone be acquired. 6. Counter affidavit had been filed on behalf of the third respondent wherein the following facts have been pointed out:- 6.1. Due to increase in traffic in the Korukkupet area in Kathivakkam High Road Cockrain Basin Road railway crossing it was proposed to construct a railway over bridge. The above proposal was made after due traffic study by appointing an expert consultant and it was proposed to construct a over bridge. The proposal was submitted to the Government and the same was approved in G.O.Ms.No.80 dated 11.06.2007. Due to increase in the railway traffic, pedestrians and vehicular traffic are made to wait for longer period and created chaos and the public are much stranded in the 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 of the land in 10 survey nos. out of 12 survey nos. that was sought to be acquired and only in view of the interim stay granted by this Court in the above writ petitions the fourth respondent is unable to take possession of the remaining two survey nos. 6.2. Counter affidavit was filed by the fourth respondent in tune with the counter affidavit filed by the third respondent. 7. I have heard Mr.E.Jayasankar and Mr.A.Venkatesan, the learned counsels appearing for the petitioners in both the writ petitions, Mr.V.Bharathidasan, the learned counsel appearing for the Commissioner, Chennai Corporation and Mrs.LitaSrinivasan, the learned Government Advocate appearing for the Government. 7.1. The first and foremost submission that was made on behalf of the petitioners are that, invoking the emergency clause under Section 17 of the Act, thereby dispensing with the enquiry under Section 5-A is bad in law citing real urgency, which is not in existence in the case on hand. The respondents ought to have conducted enquiry under Section 5-A of the Act and ought not to have dispensed with the said enquiry and invoked emergency clause under Section 17 of the Act. 7.2. In this regard, the learned counsel appearing for the petitioners relied on several decisions of the Hon'ble Apex Court. (a) The judgement reported in (1980) 2 SCC page 471 (State of Punjab Vs. Gurudial Singh and others) was cited and submitted that in the said matter the Hon'ble Apex Court held that "it is fundamental that compulsory taking of man's property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness and denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where the public interest does not brook even the minimum time needed to hear, Land acquisition authorities should not having regard to Articles 14 and 19 burke an enquiry under Section 17 of the Act. " (b) The judgement reported in (2002) 7 SCC page 98 (Union of India vs. Shakunthala Gupta (Dead) by L.Rs, wherein the Hon'ble Apex Court while dismissing the review petition upheld the decision of the Division Bench of Delhi High Court in the case of Banwari lal and sons (p) Ltd., vs. Union of India, wherein the land acquisition proceedings was set aside on the ground that there is no whisper of what was the urgency to take immediate possession and to deny the right under Section 5-A of the Act. https://hcservices.ecourts.gov.in/hcservices/ (c) The judgement reported in 2004 (8) SCC page 14 (Union of India Vs. Mukesh Hans), wherein the Hon'ble Apex Court has held that mere existence of urgency though is a condition precedent for invoking Section 17 of the Act, that itself is not sufficient for dispensing with the enquiry under Section 5-A. 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 and the Government has to apply its mind before doing so. (d) In (2004) 8 SCC page 453 (Union of India and others vs. Krishna Lal Arneja and others), the Hon'ble Apex Court has held that Section 17 confers extraordinary powers on the authorities under which it can dispense with Section 5A enquiry in exceptional case of urgency. Such powers cannot be lightly resorted to except in case of real urgency enabling the Government to take immediate possession of the land proposed to be acquired for public purpose. (e) In 2008 (1) SCC page 728 (Devinder Singh and others vs. State of Punjab and others), the Supreme Court has held that the conclusive order under Section 6 of the Act is also subject to judicial review on the grounds of jurisdictional error. (f) In (2005) 7 SCC page 627 (Hindustan Petroleum Corporation Ltd. vs. Darius Shapur Chennai and others), the Supreme Court has held that the jurisdiction of the Court is no doubt limited but however when an opportunity of being heard has expressly been conferred by a statute, the same must scrupulously be complied with. 7.3. Thus relying on the various Supreme Court decisions referred to above, it was contended on behalf of the learned counsel appearing for the petitioners that the Hon'ble Apex Court has taken a consistent view that only in case of real urgency, Section 17 of the Act should be invoked and pressed into service. Even then, it shall be upon subjective satisfaction of the authority concerned. Mere public purpose does not automatically mean that there is an urgency. Invoking urgency clause there by dispensing with an enquiry under Section 5A of the Act, is not automatic. Enquiry contemplated under Section 5A of the Act is a step in furtherance of what is enshrined under Article 300A of the Constitution of India. 7.4. On facts also the learned counsels appearing for the petitioners submitted that there is no need to acquire their lands for the purpose for which the land acquisition proceedings were initiated and in W.P.No.13930 of 2008 the learned counsel appearing for the petitioners therein contended that the petitioners are running 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 learned Government Advocate appearing for the respondent Government, as well as Mr. V.Bharathidasan, the learned counsel appearing for the corporation submitted that since there is an urgent requirement for putting up over bridge to cater the needs of the public who has to wait for a long time to cross over the road and due to increase in the traffic in the Korukkupet area in Kathivakkan High Road Cochrane Basin Road railway crossing, it was proposed to construct a railway over bridge. The proposal was made after due traffic study by appointing an expert consultant. After submission of the proposal, the Government was pleased to approve the same in G.O.Ms.No.80 dated 11.06.2007. It will ease the congestion and the people at large need not wait for a longer period. The Government has thought over the matter and invoked Section 17 of the Act. 8.1. In support of their contentions, the following judgements were relied on (a) (2007) 5 MLJ 831. More emphasis was made on para 29 which is extracted here under:- " 29. As has been observed in several decisions by the Supreme Court, the question of acquisition under Section 17(1) and 17(4) of the Land Acquisition Act is on the basis of subjective satisfaction of the Government and ordinarily it is not open to the Court to sit in judgement in an objective manner over such subjective satisfaction. It may be that any scheme is likely take its own time for implementation. It is also matter of common experience that very often many of the schemes which are required to be urgently implemented get mired in unnecessary administrative and legal wranglings. Similarly, merely because at times many matters are pending before the Court of law and the persons in charge of administration are not alert enough to seek for early disposal of matters, cannot be construed as a ground for coming to a conclusion at a subsequent stage that initially there was no urgency. It is no doubt true that the right conferred under Section 5- A of the Act is a valuable right, but in a given case such right is subject to the power of eminent domain of the State and obviously subject to the provision regarding acquisition of land by invoking the urgency clause and unless it is shown that decision of the Government for invocation of the urgency clause is of arbitrariness, mala fides or non-application of mind, ordinarily the Court should not interfere with the discretionary matters, which are based on subjective satisfaction of the appropriate authority." https://hcservices.ecourts.gov.in/hcservices/ (b) W.A.No.814 of 2009 and etc., batch. Para 19 on which more reliance was made is extracted here under:- "19. This takes us to the next question as to whether the Government had sufficient reason for dispensing with the enquiry under Section 5-A in the given facts of the case. The learned counsel appearing for the Corporation of Chennai produced the relevant files and we have perused the same. In terms of Sub-section (3-A) of Section 17 of the Act, the Collector shall, without prejudice to the provisions of Sub-section 3, tender payment of 80% of compensation for such land as estimated by him to the persons interested entitled thereto before taking possession. By virtue of the above provision, a proposal emanated from the District Collector to the Government for sanction of payment of 80% of compensation in a sum of Rs.9,70,73,400/- for the total area of 18,225 sq.ft. of land to be acquired. That was processed and inspection of the land in question was carried on by the Tahsildar concerned and in his proceedings dated 22.4.2008, he also recommended for the said sanction of the amount. Thereafter, the Commissioner, Corporation of Chennai also sought permission from the District Collector in his communication dated 22.4.2008 for acquiring the land. Considering all the above aspects, the Government in G.O.Ms.No.120 dated 26.6.2008 accorded approval apparently keeping in mind the urgency clause. In all these correspondences, not only the Tahsildar concerned, but also the Commissioner as well as the Government had referred to only the provisions of urgency clause indicating the requirement to invoke the said provision. Finally a note was placed for invocation of the urgency clause. From the note file, it is seen that though some attempts were made to negotiate with the owners, it failed, thereby necessitating the invocation of the urgency clause. The learned single judge, of course, by placing 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 no indication of application of mind by the Government. In our considered view, the said reason cannot be accepted. In order to find out the satisfaction of the appropriate Government to invoke the urgency clause, the entire file must be taken into consideration. As we have already noted, right from the proceedings dated 30.4.2008 of the Special Commissioner and Commissioner of Land Administration, it is seen that the Government had applied its mind to invoke the urgency clause and therefore only recommended the sanction of 80% of the compensation amount https://hcservices.ecourts.gov.in/hcservices/ which is to be statutorily tendered while invoking the urgency clause and the subsequent proceedings also indicate that the Government by invoking the urgency clause not only sanctioned the compensation amount, but also sanctioned the very acquisition proposal as such. The permission was accorded by the Governor keeping in mind the above background of the proceedings. If the entire proceedings are read as a whole, the Court has to necessarily accept the stand of the Government that there was a proper application of mind for invoking the urgency clause. As we have already pointed out that such exercise of discretionary power could be tested only on reasonableness or on mala fide grounds. In this case, the question of mala fide is not put in issue. The only ground left open is the reasonableness. In fact, the appropriate Government need not pass a reasoned order to its satisfaction, as such subjective satisfaction could be culled out from the records, as has been held by the Supreme Court in Mohan Singh and Ors. v. International Airports Authority of India and Ors. (1997) 9 SCC 132. Hence, we are of the considered view that the opinion of the Government to invoke the urgency clause is supported by reasons and it cannot be termed to be as unreasonable or capricious." 9.1. The contention of the learned counsels appearing for the petitioners is that enquiry under Section 5-A is not a mere formality and that it could not be brushed aside easily, is well laid down proposition. The Hon'ble Apex Court in the judgements referred to above have clearly held that though Section 17 of the Act confers extraordinary powers on the authorities to dispense with the normal procedure laid down under Section 5A of the Act, it shall be sparingly invoked and that too in an exceptional case of urgency. Further, the Hon'ble Apex Court held that the enquiry under Section 5A is very valuable right of a person whose property is sought to be acquired. 9.2. In the back drop of the above pronouncement of this Court as well as the Hon'ble Apex Court, it has to be seen in the present case on hand that whether respondents are justified in dispensing with the enquiry contemplated under Section 5A of the Act and that whether the respondents are justified in invoking Section 17 of the Act. 9.3. In the given case on hand, the respondents seems to have considered the traffic congestion in the Korrukupet area in Kathivakkam High Road Cochrane Basin Road railway crossing and it was decided to construct the railway over bridge. An expert opinion seems 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 in G.O.Ms.No.80 dated 11.06.2007. It is not denied even by the petitioners that there exists a necessity to put up a railway over bridge in the korrukupet area. The only objection that was raised is that the emergency clause should not have been invoked and there should have been a 5A enquiry in which the petitioners could have explained their position. 9.4. Before considering the said contention, it will be useful to extract Section 17 of the Act which is reproduced here under:- " 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-section (1) and with the previous sanction or 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 inconveniences. (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- https://hcservices.ecourts.gov.in/hcservices/ 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)." 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 judgement reported in AIR 1968 SC page 870 (Ishwarlal Girdharlal Joshi etc., vs. State of Gujarat and another). It was held therein that the only requirement for the Government to invoke Section 17 is that it should have applied its mind and satisfy itself for invoking emergency clause. It shall not be arbitrary, capricious, tainted with malafide and there shall not be colourable exercise of power. The important requirement therefore, for the Government to invoke Section 17 is that it shall be supported by reasonable reasons and it shall not be unreasonable, arbitrary and tainted with malafide. In the given case on hand it is nobody's case that the proposed construction and acquisition of the petitioners property is tainted with malafide or colourable exercise of power. Their only contention is that the emergency power should not have been invoked. 9.6. Before considering the said issue, it will be useful to place reliance on (i) G.O.Ms.No.80, Municipal Administration and Water Supply Department, dated 11.06.2007 (ii) The Collector's proceedings signed on 21.08.2007 sent to the Special Commissioner & Commissioner of Land Administration, Chennai. (iii) The letter addressed by The Special Commissioner and Commissioner of Land Administration to The Collector dated 25.09.2007. (iv) G.O.Ms.No.158, Municipal Administration and Water Supply Department, dated 23.11.2007 (v) G.O.Ms.No.165, Municipal Administration and Water Supply Department, dated 03.12.2007. 9.7. G.O.Ms.No.80, Municipal Administration and Water Supply Department, dated 11.06.2007 in and by which the Government accorded administrative sanction for acquiring the land in question for 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; ? 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