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Rajasthan High Court · body

2007 DIGILAW 865 (RAJ)

Ram Charan Gupta v. State of Raj.

2007-04-25

R.M.LODHA, R.S.CHAUHAN

body2007
Honble LODHA, J.–This special appeal is by the un-successful petitioner in challenging the notification dated 20.1.1992 issued under Section 4(1) read with Section 17(4) of the Land Acquisition Act, and the declaration dated 9.3.1992 made under Section 6 for the compulsory acquisition of land bearing Khasra No. 1468 situate at village Chak Nasarbad Tehsil Khairthal District Alwar. (2). The controversy arises in the facts and circumstances which may be briefly noticed by us immediately hereinafter. (a) The petitioner is said to have purchased the share of Sapianath in the agricultural land bearing Khasra No. 1468 on 12.6.1989. Immediately after purchase, he claims to have made an application for correction of the revenue record. (b) The State Government issued a notification under Section 4(1) of the Land Acquisition Act on 23.3.1990 for compulsory acquisition of the agricultural land mentioned therein including the agricultural land of Khasra No.1468 situate in Village Chak Nasarbad for the construction of Krishi Upaj Mandi Yard. (c) Pursuant to the publication of the notification dated 29.3.1990, the petitioner filed objections under Section 5A of the Land Acquisition Act. The owners of the other land proposed to be acquired pursuant to the said notification also filed their objections. (d) The Land Acquisition Officer upon consideration of the diverse objections raised by the petitioner for compulsory acquisition of the land bearing Khasra No.1468, in his report to the State Government, stated that the acquisition of the said land was not justified as it would result in demolition of residential houses existing therein. In his report, the Land Acquisition Officer stated that the land bearing Khasra No.1468 must be kept free from acquisition. In respect of few other Khasra numbers; namely, 2296, 2298, 2299, 2300, 2215, 2216, 2217, 2218 and 2255 also the Land Acquisition Officer was of the view that the aforesaid khasra numbers be kept free from the acquisition as many houses were existing thereon. With regard to the necessity of new Mandi Yard, the Land Acquisition Officer suggested that the construction of new Mandi Yard be treated in the urgent category and acquisition be proceeded accordingly. The report of the Land Acquisition Officer sent to the State Government is dated 5.1.1991. (e) The State Government issued a fresh notification dated 20.1.1992 proposing acquisition of the agricultural land mentioned therein including Khasra No. 1468 under Section 4(1) read with Section 17(4) of the Land Acquisition Act. The report of the Land Acquisition Officer sent to the State Government is dated 5.1.1991. (e) The State Government issued a fresh notification dated 20.1.1992 proposing acquisition of the agricultural land mentioned therein including Khasra No. 1468 under Section 4(1) read with Section 17(4) of the Land Acquisition Act. By the said notification, the State Government dispensed with the inquiry under Section 5A. (f) The State Government then issued declaration under Section 6 of the Land Acquisition Act on 9.3.1992. (3). The petitioner has challenged the legality and validity of the notification under Section 4(1) read with Section 17(4) and the declaration made under Section 6 of the Land Acquisition Act inter-alia on the grounds; namely, (i) That the declaration under Section 6 of the Land Acquisition Act was not made within one year from the date of publication of the notification under Section 4(1); (ii) That the combined notification under Section 6 read with Section 17(4) was bad in law; (iii) That without withdrawing the previous notification under Section 4(1) dated 29.3.1990, the subsequent notification dated 20.1.1992 could not have been issued under Section 4(1) read with Section 17(4); (iv) That the invocation of the provisions of Section 17(4) was illegal, arbitrary and malafide. (4). According to the petitioner, there was no urgency at all so as to invoke Section 17(4) more so when pursuant to the earlier notification dated 29.3.1990 under Section 4(1), the inquiry under Section 5A was already conducted by the Land Acquisition Officer and the petitioners land bearing Khasra No. 1468 was not found fit for the acquisition. (5). The State Government responded to the writ petition by filing reply affidavit. The State Government set-up a plea that the acquisition proceedings pursuant to the notification dated 29.3.1990 issued under Section 4(1) was not pursued after the receipt of the report from the Land Acquisition Officer. Instead the State Government issued fresh notification under Section 4(1) on 20.1.1992 which it was free and competent to do so. The notification dated 20.1.1992 issued under Section 4(1) read with Section 17(4) of the Land Acquisition Act, according to the State Government, was published in the State Gazette on 23.4.1992. It was also published in the Daily News Paper "Jharokha" on 7.5.1992. The declaration under Section 6 of the Land Acquisition Act was made on 9.3.1992 and published in the Official Gazette on 16.3.1993. It was also published in the Daily News Paper "Jharokha" on 7.5.1992. The declaration under Section 6 of the Land Acquisition Act was made on 9.3.1992 and published in the Official Gazette on 16.3.1993. The said declaration was also published in the news paper "Jharokha" on 1.5.1993. Thus, according to the State Government, the declaration under Section 6 was made within one year of the publication of the notification under Section 4(1) of the Land Acquisition Act. The State Government denied that the combined notification under Section 6 read with Section 17(4) of the Land Acquisition Act was issued. With regard to the urgency clause, the State Government set-up the plea that it is for the State Government to decide whether it is appropriate to invoke the urgency clause in the facts and circumstances of the case and the decision of the State Government in this regard cannot be challenged by the khatedar and the Court is not required to interfere in such decision taken by the State Government in extraordinary jurisdiction under Article 226 of the Constitution of India. It also stated in the reply that spacious market yard is dire necessity of the business community of Khairthal town and Krishi Upaj Mandi Samiti is only the agency of Khairthal which can make available such market yard to the business community and, therefore, at the request of the Krishi Upaj Mandi, Khairthal and acquisition proceedings were initiated. (6). After hearing the parties, the Single Judge along with other connected matters (11 writ petitions in all) dismissed the entire group of writ petitions on September 2, 1996. (7). At this stage, we may notice the submission of Mr. R.K. Mathur, counsel for the respondent No.2 that from the decision of the Single Judge dated 2.9.1996, 11 special appeals were filed. 10 special appeals were disposed of on 15.12.2005.According to him, in view of the said decision, the merits of the case in the present appeal need not be gone into by us. (8). The order of the Division Bench dated 15.12.2005 disposing of 10 special appeals read thus: "Heard. In view of the subsequent events narrated before us, we grant liberty to the appellants to make representations before the concerned authority in regard to their grievance. The concerned authority is directed to dispose of the representations after providing opportunity of hearing to the appellants as expeditiously as possible. In view of the subsequent events narrated before us, we grant liberty to the appellants to make representations before the concerned authority in regard to their grievance. The concerned authority is directed to dispose of the representations after providing opportunity of hearing to the appellants as expeditiously as possible. 15 days time is granted to the appellants to submit representations. Till the representations are decided, the parties are directed to maintain status quo in regard to the land in question. The appeals stand disposed of as indicated above." (9). At the first blush, we though of disposing of this appeal by asking the appellant to make representation to the State Government with regard to his grievance as was done in respect of 10 other special appeals. But in view of the information given by mr. R.K. Mathur that representations made by those appellants have been rejected by the State Government, the course of asking the appellant to make representation to the State Government was not found appropriate by us. We find ourselves unable to agree with the submission of Mr. R.K. Mathur that by the order dated 15.12.2005 that we have reproduced above the Division Bench has up-held the decision of the Single Judge. A perusal of the order dated 15.12.2005 would show that the Division Bench did not consider those appeals on merit at all. The said order came to be passed in view of the events that were brought to the notice of the Division Bench and keeping those events in mind, the Bench granted liberty to those appellants to make representations before the concerned authority with regard to their grievance. Surely, the order dated 15.12.2005 cannot be read to fore-close the consideration of this appeal on merits. (10). Mr. Shiv Charan Gupta, the counsel for the appellant would submit that the declaration under Section 6 of the Land Acquisition Act dated 9.3.1992 being beyond one year from the notification dated 20.1.1992 issued under Section 4(1) read with Section 17(4) is bad in law in view of the time limit prescribed in proviso (2) of Section 6 of the Land Acquisition Act. (11). The contention seems to have been made by the counsel for the appellant oblivious of the relevant dates of publication of the notifications issued under Section 4(1) read with Section 17(4) and Section 6 of the Land Acquisition Act. (11). The contention seems to have been made by the counsel for the appellant oblivious of the relevant dates of publication of the notifications issued under Section 4(1) read with Section 17(4) and Section 6 of the Land Acquisition Act. The notification issued under Section 4(1) read with Section 17(4) dated 20.1.1992 was published in the official gazette as well as in the local news paper. In the official gazette, the said notification was published on 23.4.1992 while in the daily news paper, the said notification was published on 7.5.1992. That the last date of publication of such notification is the date of publication is the statutory legal position provided in the Land Acquisition Act itself. Obviously, therefore, the date of publication of the notification under Section 4(1) has to be taken to be 7.5.1992. In so far as declaration under Section 6 of the Land Acquisition Act is concerned, it was published in the official gazette on 16.3.1993 and in the news paper `Jharokha on 1.5.1993. The date of publication of the declaration under Section 6 of the Land Acquisition Act is last of these dates i.e. 1.5.1993 which is apparently within one year from the date of publication of the notification under Section 4(1) of the Land Acquisition Act. (12). Thus, we have no hesitation in holding that the declaration under Section 6 has been made within one year of the publication of the notification under Section 4(1) of the Land Acquisition Act. In other words, the declaration under Section 6 is within the time prescribed in proviso (2) thereof. (13). There is also no merit in the contention of the counsel for the appellant that the combined notification issued under Section 6 read with Section 17(4) of the Land Acquisition Act is bad in law. As a matter of fact, the declaration made under Section 6 is not a combined notification at all. It is the notification under Section 4(1) which is a combined notification invoking urgency clause under Section 17(4) of the Land Acquisition Act. (14). Now we come to the crucial question of invocation of urgency clause under Section 17(4) of the Land Acquisition Act. (15). Section 17(4) of the Land Acquisition Act reads thus: "17(4). It is the notification under Section 4(1) which is a combined notification invoking urgency clause under Section 17(4) of the Land Acquisition Act. (14). Now we come to the crucial question of invocation of urgency clause under Section 17(4) of the Land Acquisition Act. (15). Section 17(4) of the Land Acquisition Act reads thus: "17(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 5A 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)]." (16). The matters relating to invocation of the urgency clause under Section 17(4) and the dispensation of inquiry under Section 5A have come up for consideration before the courts from time to time. There are long line of decided cases by the Supreme Court on this aspect. We need not advert to all of them, reference to some of the said decisions shall suffice. (17). In the case of Narayan Govind Gavate etc. vs. State of Maharashtra & Ors. ( AIR 1977 SC 183 ), the Supreme Court considered the power of the State Government in invocation of Section 17, the formation of its opinion in given fact situation and dispensation of inquiry under Section 5A of the Land Acquisition Act. The Supreme Court considered the matter thus: "We think that Section 17(4) cannot be read in isolation from Sections 4(1) and 5A of the Act. The immediate purpose of a notification under Section 4(1) of the Act is to enable those who may have any objections to make to lodge them for purposes of an inquiry under Section 5A of the Act. It is true that, although, only 30 days from the notification under Section 4(1) are given for the filing of these objections under Section 5A of the Act, yet, sometimes the proceedings under Section 5A are unduly prolonged. But, considering the nature of the objections which are capable of being successfully taken under Section 5A, it is difficult to see why the summary enquiry should not be concluded quite expeditiously. But, considering the nature of the objections which are capable of being successfully taken under Section 5A, it is difficult to see why the summary enquiry should not be concluded quite expeditiously. In view of the authorities of this Court, the existence of what were prima facie public purposes, such as the one present in the cases before us, cannot be successfully challenged at all by objectors. It is rare to find a case in which objections to be validity of an public purpose of an acquisition can even be stated in a form in which the challenge could succeed. Indeed, questions relating to validity of the notification on the ground of malafides do not seem to us to be ordinarily open in a summary enquiry under Section 5A of the Act. Hence, there seems to us to be little difficulty in completing enquiries contemplated by Section 5A of the Act very expeditiously. Now, the purpose of Section 17(4) of the Act is, obviously, not merely to confine action under it to waste and arable land but also to situations in which an inquiry under Section 5A will serve no useful purpose, or, for some overriding reason, it should be dispensed with. The mind of the Officer or authority concerned has to be applied to the question whether there is an urgency of such a nature that even the summary proceedings under Section 5A which has to be considered. Section 17(2) deals with a case in which an enquiry under Section 15A of the Act could not possibly serve any useful purpose. Sudden change of the course of a river would leave no option if essential communications have to be maintained. It results in more or less indicating, by an operation of natural physical forces beyond human control, what land should be urgently taken possession of. Hence, it offers no difficulty in apply in Section 17(4) in public interest. And, the particulars of what is obviously to be done in public interest need not be concealed when its validity is questioned in a Court of justice. Other cases may raise questions involving consideration of facts which are especially within the knowledge of the authorities concerned. And, if they do not discharge their special burden, imposed by Section 106. And, the particulars of what is obviously to be done in public interest need not be concealed when its validity is questioned in a Court of justice. Other cases may raise questions involving consideration of facts which are especially within the knowledge of the authorities concerned. And, if they do not discharge their special burden, imposed by Section 106. Evidence act, without even disclosing a sufficient reason for their abstention from disclosure, they have to take the consequences which flow from the non-production of the best evidence which could be produced on behalf of the State if its stand was correct. In the case before us, the public purpose indicating is the development of an area for industrial and residential purposes. This, in itself, on the face of it, does not call for any such action, barring exceptional circumstances, as to make immediate possession, without holding even a summary enquiry under Section 5A of the Act, imperative. On the other hand, such schemes generally take sufficient period of time to enable at least summary inquiries under Section 5A of the Act to be completed without any impediment whatsoever to the execution of the scheme. Therefore, the very statement of the public purpose for which the land was to be acquired indicated the absence of such urgency, on the apparent facts of the case, as to require the elimination of an enquiry under Section 5A of the Act. Again, the uniform and set recital of a formula, like a ritual or mantra, apparently applied mechanically to every case, itself indicated that the mind of the Commissioner concerned was only applied to the question whether the land was waste or arable and whether its acquisition is urgently needed. Nothing beyond that seems to have been considered. The recital itself shows that the mind of the Commissioner was not applied at all to the question whether the urgency is of such a nature as to require elimination of the enquiry under Section 5A of the Act. If it was, atleast the notifications gave no inkling of it at all. On the other hand, its literal meaning was that nothing beyond matters stated there were considered. All Schemes relating to development of industrial and residential areas must be urgent in the contest of the countrys need for increased production and more residential accommodation. If it was, atleast the notifications gave no inkling of it at all. On the other hand, its literal meaning was that nothing beyond matters stated there were considered. All Schemes relating to development of industrial and residential areas must be urgent in the contest of the countrys need for increased production and more residential accommodation. Yet, the very nature of such schemes of development does not appear to demand such emergent action as to eliminate summary enquiries under Section 5A of the Act. There is no indication whatsoever in the affidavit filed on behalf of the State that the mind of the Commissioner was applied at all to the question whether it was a case necessitating the elimination of the enquiry under Section 5A of the Act. The recitals in the notifications, on the other hand, indicate that elimination of the enquiry under Section 5A of the Act was treated as an automatic consequence of the opinion formed on other matters. The recital does not say at all that any opinion was formed on the need to dispense with the enquiry under Section 5A of the Act. It is certainly a case in which the recital was atleast defective. The burden, therefore, rested upon the State to remove the defect, if possible, by evidence to show that some exceptional circumstances which necessitated the elimination of an enquiry under Section 5A of the Act and that the mind of the Commissioner was applied to this essential question. It seems to us that the High Court correctly applied the provisions of Section 106 of the Evidence Act to place the burden upon the State to prove those special circumstances although it also appears to us that the High Court was not quite correct in stating its view in such a manner as to make it appears that some part of the initial burden of the petitioners under Sections 101 and 102 of the Evidence Act had been displaced by the failure of the State to discharge its duty under Section 106 of the Act. The correct way of putting it would have been to say that the failure of the State to produce the evidence of facts especially within the knowledge of its officials, which rested upon it under Section 106 of the Evidence Act, taken together with the attendant facts and circumstances, including the contents of recitals, had enabled the petitioners to discharge their burdens under Sections 101 and 102 of the Evidence Act. We may also observe that if, instead of prolonging litigation by appealing to this Court, the State Government had ordered expeditious enquiries under Section 5A of the Act or even afforded the petitioners some opportunity of being heard before acting under Section 17(4) of the Act, asking them to show cause why no enquiry under Section 5A of the Act should take place at all, the acquisition proceedings need not have been held up so long. In fact, we hope that the acquisitions proceedings have not actually been held up." (18). The two-Judge bench of the Supreme Court in the case of State of U.P. vs. Smt. Pista Devi & Ors. etc. et. - AIR 1986 SC 2025 , dealing with the power of the State Government in dispensing with the inquiry under Section 5A by invoking Section 17 in the matter relating to acquisition of land for housing schemes in the city of Meerut, held thus: "The main ground on which the High Court set aside the impugned notification and the declaration was that the case of urgency put forward by the State Government for dispensing with the compliance with the provisions of Section 5-A of the Act had been belied by the delay of nearly one year that had ensued between the date of the notification under Section 4 and the date of declaration made under Section 6 of the Act. It, however, rejected the contention of the petitioners based on the delay that had preceded the issue of the notification under Section 4 of the Act. The High Court observed that `if the Government were satisfied with the urgency it would have certainly issued declaration under Section 6 of the Act immediately after the issue of the notification under Section 4(1) of the Act containing the direction dispensing with the compliance with Sec. 5-A of the Act and the date of publication of the declaration issued under Section 6 of the Act is not disputed. It is seen from the record before us that after the publication of the notification under Sec. 4(1) of the Act, the Collector after going through it found that there were some errors in the notification which needed to be corrected by issuing a corrigendum. Accordingly, he wrote a letter to the State Government on 25.8.1980 pointing out the errors and requesting the State Government to publish a corrigendum and the declaration under Section 6 of the Act were issued on May 1, 1981. It is on account of some error on the part of the officials who were entrusted with the duty of proceedings of the case at the level of the Secretariat there was a delay of nearly one year between the publication of the notification under Sec. 4(1) and the publication of the declaration under Sec. 6 of the Act. The question for consideration is whether in the circumstances of the case it could be said that on account of the mere delay of nearly one year in the publication of the declaration it could be said that the order made by the State Government dispensing with the compliance with Sec. 5-A of the Act at the time of the publication of the notification under Sec. 4(1) of the act would stand vitiated in the absence of any other material. In this case there is no allegation of any kind of mala fides on the part of either the Government or any of the officers, nor do not respondents contend that there was no urgent necessity for providing housing accommodation to a large number of people of Meerut city during the relevant time. The letters and the certificates submitted by the Collector and the Secretary of the Meerut Development Authority to the State Government before the issue of the notification under Sec. 4(1) of the Act clearly demonstrated that at that time there was a great urgency felt by them regarding the provision of housing accommodation at Meerut. The State Government acted upon the said reports, certificates and other material which were before it. In the circumstances of the case it cannot be said that the decision of the State Government in resorting to Sec. 17(1) of the Act was unwarranted. The provision of housing accommodation in these days has become a matter of national urgency. We may take judicial notice of this fact. In the circumstances of the case it cannot be said that the decision of the State Government in resorting to Sec. 17(1) of the Act was unwarranted. The provision of housing accommodation in these days has become a matter of national urgency. We may take judicial notice of this fact. Now, it is difficult to hold that in the case of proceedings relating to acquisition of land for providing house sites it is unnecessary to invoke S. 17(1) of the Act and to dispense with the compliance with Sec. 5-A of the Act. Perhaps, at the time of which the decision on Narayan Govind Gavate vs. State of Maharashtra, (1977) 1 SCR 763 : ( AIR 1977 SC 183 ) related the situation might have been that the schemes relating to development of residential areas in the urban centres were not so urgent and it was not necessary to eliminate the inquiry under Sec. 5A of the Act. The acquisition proceedings which had been challenged in that case related to the year 1963. During this period of nearly 23 years since then the population of India has gone up by hundreds of millions and it is no longer possible for the Court to take the view that the schemes of development of residential areas do not `appear to demand such emergent action as to eliminate summary inquiries under Sec. 5-A of the Act. In Kasireddy Papaiah vs. Govt. of Andhra Pradesh, AIR 1975 Andh Pra 269 Chinnappa Reddy, J. speaking for the High Court of Andhra Pradesh dealing with the problem of providing housing accommodation to Harijans has observed thus: "That the housing conditions of Harijans all over the country continue to be miserable even today is a fact of which courts are bound to take judicial notice. History has made it urgent that, among other problems, the problem of housing Harijans should be solved expeditiously. The greater the delay the more urgent becomes the problem. Therefore, one can never venture to say that the invocation of the emergency provisions of the Land Acquisition Act for providing house sites for Harijans is bad merely because the officials entrusted with the task of taking further action in the matter are negligent or tardy in discharging of their duties, unless of course, it can be established that the acquisition itself is made with an oblique motive. The urgent pressures of history are not to be undone by the inaction of the bureaucracy. I am not trying to make any pontific pronouncements. But I am at great pains to point out that provision for house sites for Harijans is an urgent and pressing necessity and that the invocation of the emergency provisions of the Land Acquisition Act cannot be said to be improper, in the absence of mala fides, merely because of the delay on the part of some Government officials." What was said by the learned Judge in the context of provision of housing accommodation to harijans is equally true about the problem of providing housing accommodation to all persons in the country today having regard to the enormous growth of population in the country. The observation made in the above decision of the High Court of Andhra Pradesh is quoted with approval by this Court in Deepak Pahwa vs. Lt. Governor of Delhi, (1985) 1 SCR 588 : ( AIR 1984 SC 1721 ), even though in the above decision the Court found that it was not necessary to say anything about the post-notification delay. We are of the view that in the facts and circumstances of this case the post- notification delay of nearly one year is not by itself sufficient to hold that the decision taken by the State Government under Section 17(1) and (4) of the Act at the time of the issue of the notification under Section 4(1) of the Act was either improper or illegal." (19). In the case of Krishi Utpadan Mandi Samiti, Muzaffarnagar (U.P.) vs. Ratan Prakash Mangal and others - AIR 1988 SC 1459 , the Supreme Court considered the matter in para 3 of the report thus: "the respondents 1 and 2 challenged the Notifications dated 26/10/1978 and 27/10/1978 referred to above before the High Court in Writ Petition No. 163 of 1979. The plea raised by them was that there was no urgency and consequently the inquiry contemplated by Section 5-A of the Act could not be dispensed with by invoking Section 17(4) thereof. This plea found favour with the High Court and the two Notifications mentioned above were quashed on 6/06/1979 in so far as Plot No.289 was concerned. This judgment of the High Court was challenged by the Krishi Utpadan Mandi Samiti, Muzaffarnagar before this Court in Civil Appeal No.2970 of 1979. This plea found favour with the High Court and the two Notifications mentioned above were quashed on 6/06/1979 in so far as Plot No.289 was concerned. This judgment of the High Court was challenged by the Krishi Utpadan Mandi Samiti, Muzaffarnagar before this Court in Civil Appeal No.2970 of 1979. This Court agreed with the High Court in so far as it had held that the urgency clause had been wrongly applied. But it was held that on that ground even though quashing of the Notification under Section 6 of the Act was justified the High Court was not right in quashing the Notification under Section 4(1) in its entirety. On this view the appeal was allowed in part and the judgment of the High Court was set aside in so far as it quashed the Notification under Section 4(1) of the Act in its entirety. The rest of the judgment was, however, maintained with a direction that "copies of the notifications be served personally on respondents Nos. 1 and 2 and their transferees so that respondents Nos. 1 and 2 and their transferees may have an opportunity to file their objections to the proposed acquisition within three weeks from the date of service of the copy of the notification upon each of them. The appropriate authority will then hold an inquiry into the objections under Section 5-A and proceed with the matter in accordance with law. Since the appellant has obtained possession of the land from respondents Nos. 1 and 2 and their transferees by invoking the urgency clause which has been set aside, the appellant will restore possession of the same to respondents Nos.1 and 2 and their transferees within a week from today." (20). Subsequent to the direction of the Supreme Court in that case for holding inquiry under Section 5A, dealing with the aspect of post-notification delay, it was observed that delay of nearly one year was not by itself sufficient to hold that the decision taken by the State Government under Section 17(1) and (4) of the Act at the time of issue of the notification under Section 4(1) of the Act was either improper or illegal. (21). In the case of Om Prakash and another etc. vs. State of Uttar Pradesh & Ors. (21). In the case of Om Prakash and another etc. vs. State of Uttar Pradesh & Ors. ( AIR 1998 SC 2504 ), a matter relating to acquisition of land for planned development of city and dispensation of inquiry under Section 5A, it was held thus: "As we are concerned only with the applicability of Section 17, sub-section (4), it will be necessary to find out whether there was any relevant material with the appropriate Government, namely, respondent State of UP herein, to enable it to arrive at its subjective satisfaction about dispensing with the present acquisition. Before we deal with the judgments of this Court on the point, it will be necessary to quickly glance through the factual backdrop leading to the present proceedings. As we have noted earlier, NOIDA was entrusted with the task of developing areas under its jurisdiction and that development could necessarily be a planned development on a large scale. Such development could not be confined only to a few pockets of the land but must necessarily encompass in its fold schemes pertaining to large tracts of lands which were lying undeveloped and which had to be developed on a systematic basis. It is not in dispute between the parties that initially in 1976 large tracts of lands in Ghaziabad District in the State of Uttar Pradesh were acquired from the very village from which the present lands also are sought to be acquired. By a notification dated 30/04/1976, the State of Uttar Pradesh exercising powers under sub-section 1 of Section 4 issued a notification in the name of the Governor of Uttar Pradesh to the effect that various plots of lands mentioned in the notification were needed for public purposes, that it, for the planned industrial development in the district which was then known as Bullandshahr and the said acquisition was through the NOIDA for that purpose. The said notification showed that 121 and odd acres of lands were sought to be acquired and at that stage, Section 5-A inquiry was dispensed with by the State authorities by invoking powers under Section 17, sub-section (4) thereof. This notification worked itself out and was followed by Section 6 notification and various chunks of land were acquired even from village Chhalera Banger amongst others. This notification worked itself out and was followed by Section 6 notification and various chunks of land were acquired even from village Chhalera Banger amongst others. It appears that thereafter necessary development was carried out on the acquired lands by NOIDA and as a part and parcel of the comprehensive plan for industrial development, further lands were sought to be acquired by it by stages as development of any area or township is a long drawn process spread over years. A further notification under Section 4(1) was issued by the State of Uttar Pradesh on 30/10/1987 acquiring further lands of NOIDA from this very village. A number of plots of land from this village were sought to be acquired and they in all amounted to 353 acres of land. At this stage, the State authorities did not think it fit to dispense with inquiry under Section 5-A of the Act and invited parties affected by the proposed acquisition of the lands by submitting objections in writing to the Collector, Ghaziabad. The purpose of acquisition was the same, namely, for the planned industrial development in district Ghaziabad through NOIDA. As by that time, district Bullandshahr was renamed as Ghaziabad. It is, therefore, obvious that for further development in the area, no urgency was felt at that stage for dispensing with the provisions of Section 5-A of the act. It is not in dispute between the parties that the further acquisition was for developing Sector No.42 in this very scheme run by NOIDA. The aforesaid notification under Section 4 was followed by notification under Section 6 dated 14/12/1989, within two years of the issuance of Section 4 notification dated 30/10/1987 after the inquiry under Section 5-A was over and the report was submitted to the appropriate Government. It is interesting to note that on the very day on which Section 6 notification was issued on 14th December 1989, acquiring these additional lands, NOIDA proposed to the State Government that further 494.26 acres of land out of this very village Chhalera Banger were urgently required for the development of Sector 43 and other sectors of NOIDA. It was also requested that necessary notification under Section 4 read with Section 17 of the Act with regard to the said lands may be issued immediately. It was also requested that necessary notification under Section 4 read with Section 17 of the Act with regard to the said lands may be issued immediately. We were informed by senior counsel, Shri Mohta for NOIDA that even though in the earlier acquisition of 1987, pursuant to Section 4 notification, inquiry under Section 5-A was not dispensed with, by the time Section 6 notification came to be issued. Section 17(1) was resorted to as urgency had developed at least by the end of December, 1989. If that is so, it was expected that pursuant to the requisition of 14/12/1989 by NOIDA invoking urgency powers of the State Government, consequential notification under Section 4(1) would have seen light of the day at the earliest in connection with acquisition of proposed 494.26 acres of land for the development of Sector 43 and other sectors. But curiously enough, nothing happened urgently and Section 4 notification which is impugned in the present case was issued on 5/01/1991. Thus despite the invocation of urgency by NOIDA by its letter dated 14/12/1989 it appears that the State did not think the said proposal to be so urgent as to immediately respond and to issue notification under Section 4 read with Section 17, sub-section (4) till 5.1.1991. More than one year elapsed in the meantime. Why this delay took place and why the State did not think it fit to urgently respond to the proposal of NOIDA has remained a question mark for which there is no answer furnished by the respondent authorities in the present cases and nothing is brought on the record by them to explain this delay. It has, therefore, necessarily to be presumed that despite the emergency powers of the State Government being invoked by NOIDA, the State authorities in their wisdom did not think the matter to be so urgent as to immediately respond and promptly issue Section 4 notification read with Section 17(4). The impugned notification of 5.1.1991 recites that for public interest, i.e., for the planned industrial development through NOIDA, the lands mentioned in the schedule to the notification were required to be acquired. it was further recited in the notification that because the lands were essentially required for the planned development in District Ghaziabad through NOIDA, in exercise of powers under Sub-section (4) of Section 17, provisions of Section 5-A of the Act were dispensed with. it was further recited in the notification that because the lands were essentially required for the planned development in District Ghaziabad through NOIDA, in exercise of powers under Sub-section (4) of Section 17, provisions of Section 5-A of the Act were dispensed with. The learned senior counsel for the appellants vehemently submitted that in the background of the aforesaid fact situation, it appeared that when the State authorities invoked sub-section (4) of Section 17 on 5.1.1991 in connection with present acquisition, in fact, there was no urgency as even earlier in 1987, when from this very village for the very purpose lands were acquired, the State authorities in their wisdom did not think it fit to apply urgency clause and to dispense with inquiry under Section 5-A and in fact heard the objectors. Even that apart, despite proposal to acquire this land was moved by NOIDA as early as on 14/06/1988, and even thereafter when the request was sent in this connection on 14/12/1989, the State authorities did not think the situation to be so urgent as to respond quickly and could wait for more than one year. When the appellants in the writ petitions before the High Court raised their grievances regarding dispensing with inquiry under Section 5-A being not backed up by relevant evidence and the subjective satisfaction of the State in this connection was brought in challenge, all that was stated by NOIDA in its counter in para 26 was to the effect that the contents of paras 25 and 26 of the writ petition were denied and that the petitioners were not able to point out any lacunae in the proceedings under the Land Acquisition Act. Position was no better so far as the counter of the State authorities was concerned. In paragraph 24 of the counter before the High Court all that was stated was that paragraphs 25 and 26 of the writ petition, we find averments to the effect that the urgency of the acquisition was only for the purpose of depriving the petitioners of heir rights to file objections under Section 5-A and their right to hold the possession till they got compensation for which the respondents had issued notification under Section 17(1) as well as notification under Section 17 (4) of the Act. But so far as the process of the acquisition was concerned, the respondents were taking their own time, which would be evident from the fact that the notification under Section 4 read with Section 17(4) was issued on 5/01/1991 but was published in the newspaper on 30th March 1991, whereas the declaration under Section 6 of the Act was made on 7th January 1992 and that on the one hand respondents had deprived the petitioners of filing their objections under Section 5-A of the Act on the ground or urgency of acquisition, but on the other hand, they themselves had taken more than nine months in issuing the declaration under Section 6 of the said act. This conduct of the respondents falsified their claim of urgency of acquisition. These averments in the writ petitions, to say the least, almost went unchallenged and nothing concrete could be pointed out by the respondents before the High Court to support their stand as noticed from their counters referred to earlier. Thereafter, an additional model counter affidavit was filed by the State authorities in the High Court for explaining the reasons why Section 5-A inquiry was dispensed with. In paragraph 9 of the additional model counter affidavit it was averred that it was necessary to bring material before the date of notification under Section 5 for showing as to why sub-section (4) of Section 17 was invoked. The additional material which was produced before the High Court was by way of Annexures-CA3, CA4 and CA5. When we turn to these annexures, we find that Annexure-CA3 is a letter dated 21/04/1990 written by the District Magistrate, Ghaziabad, to the Joint Secretary, Industries, Government of Uttar Pradesh. It recites that on examination, it was found that the land was immediately required in public interest so that the development work in the said land could be carried out smoothly. What was the nature of urgency is not mentioned in the said letter. therefore, the position remains as vague as it was earlier. When we turn to Annexure-CA4 which is dated 12th June 1990, we find that the District Magistrate, Ghaziabad wrote to the Joint Secretary, Industries, State of U.P., that as to how many farmers were going to be affected by the proposed acquisition. It does not even whisper about the urgency of the situation which requires dispensing with Section 5-A inquiry. When we turn to Annexure-CA4 which is dated 12th June 1990, we find that the District Magistrate, Ghaziabad wrote to the Joint Secretary, Industries, State of U.P., that as to how many farmers were going to be affected by the proposed acquisition. It does not even whisper about the urgency of the situation which requires dispensing with Section 5-A inquiry. The last Annexure- CA5 is the letter dated 14/12/1989 written by NOIDA to the Land Acquisition Officer proposing urgent acquisition of the lands in question. We have already made a reference to the said letter. It recites that if immediate action for acquisition of the aforesaid lands adjacent to Sector 43 for development of which the acquisition was to be resorted to was not taken then there was possibility of encroachment over this area. That other land adjacent to this sector was already being proposed for the botanical garden. To say the least, possibility of encroachment over the area cannot by any stretch of imagination be considered to be a germane ground for invoking urgency powers for dispensing with Section 5-A inquiry. Even if acquisition takes place urgently by dispensing with inquiry under Section 5-A and the possession is taken urgently after Section 6 notification within 15 days of issuance of notice under Section 9, sub-section (1), even then there is no guarantee that the acquired land would not be encroached upon by unruly persons. It is a law and order problem which has nothing to do with the acquisition and urgency for taking possession. Even that apart, it is easy to visualise that if objectors are heard in connection with Section 5-A inquiry and in the meantime, they remain in possession of land sought to be acquired they would be the best persons to protect their properties against encroachers. Consequently, the ground put forward by NOIDA in its written request dated 14.12.1989 for invoking urgency powers must be held to be totally irrelevant. Even that apart, if that was the urgency suggested by NOIDA on 14.12.1989, we fail to appreciate as to how the State authorities did not respond to that proposal equally urgently and why they issued notification under Section 4 read with Section 17(4) after one year in January 1991. On this aspect, no explanation whatsoever was furnished by the respondent State authorities before the High Court. On this aspect, no explanation whatsoever was furnished by the respondent State authorities before the High Court. It is also interesting to note that even after dispensing with inquiry under Section 5-A pursuant to the exercise of powers under Section 17 (4) on 5/01/1991, Section 6 notification saw the light of the day only on 7.1.1992. If the urgency was of such a nature that it could not brook the delay on account of Section 5- A proceedings, it is difficult to appreciate as to why Section 6 notification in the present case could be issued only after one year from the issuance of Section 4 notification. No explanation for this delay is forthcoming on record. This also shows that according to the State authorities, there was no real urgency underlying dispensing with Section 5-A inquiry despite NOIDA suggesting at the top of its voice about the need for urgently acquiring the lands for the development of Sector No.43 and other sectors. .... In the light of the aforesaid factual position emerging on the record of the case it becomes clear that there was no relevant material before the State authorities when it invoked powers under sub-section (4) of Section17 for dispensing with Section 5-A inquiry while issuing the impugned notifications under Section 4 followed notifications under Section 4 followed by Section 6 notification of 7.1.1992. .... In the light of the aforesaid discussion, therefore, the conclusion becomes inevitable that the action of dispensing with inquiry under Section 5-A of the Act in the present case was not based on any real and genuine subjective satisfaction depending upon any relevant date available to the State authorities at the time when they issued the impugned notification under Section 4(1) of the Act and dispensed with Section 5-A inquiry by resorting to Section 17, sub-section (4) thereof. The first point is, therefore, answered in the negative, in favour of the appellants and against the contesting respondents." (22). The Supreme Court in the case of Union of India vs. Krishan Lal Arneja and others - (2004) 8 SCC 453 , was concerned with the invocation of urgency clause in the matter of acquisition of certain properties for which notification was issued on 6.3.1987 under the provisions of Section 4 and Section 17(1) and (4) of the Land Acquisition Act, 1894. In paragraph 16 of the report, the Supreme Court observed that Section 17 confers extra-ordinary powers on the authorities under which it can dispense with the normal procedure laid down under Section 5-A of the Act 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. The Supreme Court went on to observe thus: "A public purpose, however laudable it may be, by itself is not sufficient to take aid of Section 17 to use this extraordinary power as use of such power deprives a landowner of his right in relation to immovable property to file objections for the proposed acquisition and it also dispenses with the inquiry under Section 5-A of the Act. The authority must have subjective satisfaction of the need for invoking urgency clause under Section 17 keeping in mind the nature of the public purpose, real urgency that the situation demands and the time factor i.e. whether taking possession of the property can wait for a minimum period within which the objections could be received from the landowners and the inquiry under Section 5-A of the Act could be completed. In other words, if power under Section 17 is not exercised, the very purpose of which the land is being acquired urgently would be frustrated or defeated. Normally urgency to acquire a land for public purpose does not arise suddenly or overnight but sometimes such urgency may arise unexpectedly, exceptionally or extraordinary depending on situations such as due to earthquake, flood or some specific time-bound project where the delay is likely to render the purpose nugatory or infructuous. A citizens property can be acquired in accordance with law but in the absence of real and genuine urgency, it may not be appropriate to deprive an aggrieved party of a fair and just opportunity of putting forth its objections for due consideration of the acquiring authority. While applying the urgency clause, the State should indeed act with due care and responsibility. Invoking urgency clause cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the State administration." (23). While applying the urgency clause, the State should indeed act with due care and responsibility. Invoking urgency clause cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the State administration." (23). Dealing with the aspect further in paragraph 31 of the report, the Supreme Court considered the matter thus: "The various decisions cited on behalf of the appellants in support of their submission that there was justification in invoking urgency clause for acquiring the properties in question were on the facts of those cases where either urgency was made out or where it was shown that relevant material and data was available at the time of issuing notification invoking urgency clause. In the case of Deepak Pahwa vs. Lt. Governor of Delhi - (1984) 4 SCC 308 one of the grounds raised was that a long period of 8 years was spent in interdepartmental correspondence which showed that there was no urgency to invoke Section 17(4) of the Act. In that context, the Court observed that: (SCC pp.315-16, para 8) `Very often persons interested in the land proposed to be acquired make various representations to the authorities concerned against the proposed acquisition. This is bound to result in a multiplicity of enquiries, communications and discussions leading invariably to delay in the execution of even urgent projects. Very often the delay makes the problem more and more acute and increases the urgency of the necessity for acquisition. The Court proceeded on the assumption that the pre- notification delay could have been caused by representations made by the aggrieved parties but this case is not an authority to say that in the absence of material to justify urgency clause and long delay in issuing the notification could be ignored or condoned to uphold the validity of such notification. In Chameli Singh vs. State of U.P. (1996) 2 SCC 549 , the observations of the Court that larger the delay, greater be the urgency was in the context of the facts of that case having regard to the public purpose involved therein for invoking the urgency clause. In that cased, the Court appeared to think that very often the officials due to apathy in the implementation of the policies and programmes of the Government themselves adopt dilatory tactics which leads the aggrieved party to challenge the invocation of urgency. In that cased, the Court appeared to think that very often the officials due to apathy in the implementation of the policies and programmes of the Government themselves adopt dilatory tactics which leads the aggrieved party to challenge the invocation of urgency. The Court took note of the fact that urgency clause was invoked in that case for providing house sites to the dalits and the poor which is a national problem. This is not an authority to condone or ignore the laxity or lethargy or carelessness on the part of the authorities in invoking urgency clause to exercise special powers under Section 17 of the Act to cover up their delay and laches without there being any justification or material justifying invoking of urgency clause. In the case of Union of India vs. Ghanshyam Dass Kedia - (1996) 2 SCC 285 , this Court has taken the view that the notification need not specifically recite the nature of urgency and it is enough if the records disclosed the consideration by the Government on the urgency for taking action under Sections 17(1) and (4) of the Act. This position was not disputed before the High Court and is also not contested before us. The view of the High Court in this regard that the notification itself must specifically state about the nature of urgency and in its absence the notification gets vitiated, cannot be accepted. But as already observed above, the High Court did not quash the notification only on the ground of non-mentioning of urgency in the impugned notification but it has also independently considered and concluded that no material was placed before the Court to show that material and circumstances were available before the authorities at the relevant time to invoke the urgency clause to exercise powers under Section 17 of the Act. "Urgency" for invoking of Section 17 of the Act should be one arising naturally out of circumstances, which exist when the decision to acquire the land is taken and not such, which is the result of serious lapse or gross delay on the part of the acquiring authority. However, the position may be different where the delay is caused or occasioned by the landowner himself. However, the position may be different where the delay is caused or occasioned by the landowner himself. Failure to take timely action for acquisition by the authorities of the Union of India cannot be a ground to invoke the urgency clause to the serious detriment of the right of the landowner to raise objections to the acquisition under Section 5-A. (24). In yet another decision in the case of Union of India and others vs. Mukesh Hans etc. etc. - AIR 2004 SC 4307 , the three Judges bench of the Supreme Court while dealing with the power of the State Government in invocation of the urgency clause under Section 17 and dispensation of the inquiry under Section 5A, made the following important observations: "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 an urgency under Section 17(1) or unforeseen emergency under Section 17(2) would not by 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 the need for dispensing with 5A inquiry in spite of the existence of unforeseen emergency. But then that is not language of the Section which in our opinion requires the appropriate Government to further consider the 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 5A inquiry does not mean that in and 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. An argument was sought to be advanced on behalf of the appellants that once the appropriate Government comes to the conclusion that there is an urgency or unforeseen emergency under Section 17(1) and (2), the dispensation of enquiry under Section 5A becomes automatic and the same can be done by a composite order meaning thereby that there no need for the appropriate Government to separately apply its mind for any further emergency for dispensation with an inquiry under Section 5A. We are unable to agree with the above argument because sub-section (4) of Section 17 itself indicates that the "government may direct that provisions of Section 5A shall not apply" which makes it clear that not in every case where the appropriate Government has come to the conclusion that there is urgency and under sub-section (1) or unforeseen emergency under sub-section (2) of Section 17 of the Government will ipso facto have to direct the dispensation of inquiry. For this, we do not support from a judgment of this Court in the case of Nandeshwar Prasad and another vs. The State of U.P. and others ( 1964(3) SCR 425 : AIR 1964 SC 1217 ) wherein considering the language of Section 17 of the Act which was then referable to waste or arable land and the U.P. Amendment to the said section held thus: `It will be seen that Sec. 17(1) gives powers 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 cane 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 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." (25). The legal position that emerges from these decisions is that it is the subjective satisfaction of the State Government on the twin aspects viz., the urgency of the public purpose and the necessity of dispensation of inquiry under Section 5-A. However, such satisfaction has to be arrived at by the State Government after due application of mind about the nature of public purpose, real urgency of the situation and the time factor. While doing so, the State Government also has to bear in mind that such power given to its extra-ordinary in nature and deserves to be exercised in exceptional case and that right of objection given to an interested persons in opposition to the proposed acquisition is a valuable right and not an empty formality. Do the facts of the case meet these tests? Initially on 29.3.1990, the notification was issued by the State Government proposing acquisition of land for the purpose of Krishi Upaj Mandi Samiti, Khairthal. As a matter of fact, pursuant to the said notification dated 29.3.1990, various objections came to be filed; the objections filed by the petitioner were one of them. In the inquiry held by the Land Acquisition Officer, the acquisition of the petitioners land in Khasra No.1468 was neither found proper nor justified. For the reasons, one, the various residential houses existed thereon and being used as such and another, the land from Khasra No.1468 was to be used after acquisition for the purpose of road which did not justify uprooting of the occupants from their houses. As a matter of fact, the Land Acquisition Officer in his report dated 5.1.1991 suggested that the adjacent land bearing Khasra No.1469 which is not included in the notification under Section 4 be acquired as the said Khasra number is vacant land and its owner was also not residing there. As a matter of fact, the Land Acquisition Officer in his report dated 5.1.1991 suggested that the adjacent land bearing Khasra No.1469 which is not included in the notification under Section 4 be acquired as the said Khasra number is vacant land and its owner was also not residing there. Khasra No.1469 was found suitable for the road for which Khasra No. 1468 was sought to be acquired. Besides, the petitioners land bearing Khasra No.1468, the Land Acquisition Officer was also of the view that various Khasra numbers being 2215, 2216, 2217, 2218, 2296, 2298, 2299 and 2300 should also be kept free from acquisition as the residential houses were existing on these khasra numbers. If the State Government was not agreeable to the view of the Land Acquisition Officer they were not bound to accept the report and could have proceeded with the acquisition and made declaration under Section 6. But they did not choose to do that. However, after some time, i.e. in the month of January 1992, to be precise on 20.1.1992, a fresh notification under Section 4(1) was issued and power under Section 17(4) was invoked. Could the acquisition of the subject land for the purpose of market yard not brook delay of few months for completion of the summary inquiry under Section 5-A? The facts are eloquent enough to suggest that there was lack of application of mind by the State Government particularly about the real urgency of the situation and and the time factor. The notification dated 20.1.1992 on its face does not disclose any reason that the acquisition could not have been delayed for few months for completion of inquiry under Section 5A, nor in the reply filed by the State Government any material has been placed that the facts existed, consideration of which justified invocation of urgency clause. Rather, a stand has been taken in the reply affidavit that it is for the State Government to decide whether it is appropriate to invoke Section 17(4) of the Land Acquisition Act in the circumstances and that the decision of the State Government in this regard cannot be challenged by the khatedars and the court is also not required to interfere in such decision taken by the State Government. Of course, it has been stated that spacious market yard is the dire necessity of business community of Khairthal town but except the bald statement nothing has been shown nor any material placed that the necessity was so dire that could not brook delay of few months in completion of the inquiry under Section 5A when earlier the notification was issued in the month of March 1990 and upon completion of the inquiry under Section 5A, the acquisition proceedings were allowed to lapse. (26). As has been held by the Supreme Court in the case of Mukesh Hans that mere existence of urgency, though is a condition precedent for invoking Section 17(4), 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 there is also a need for dispensing with Section 5A inquiry. Nothing is there to show that along with the existence of urgency, an opinion was formed by the State Government that there was a need of dispensing with 5-A inquiry. (27). In consideration of the entire facts and circumstances and the material that has come on record, we are satisfied that the satisfaction arrived at by the State Government for invocation of urgency is vitiated by non-application of mind to the important aspects and facts noticed above. The peculiarity of the facts obtaining in the case also show that the invocation of urgency clause suffers from colourable exercise of power. If on consideration of the report submitted by the Land Acquisition Officer, it allowed to have the notification issued under Section 4(1) lapsed and issued fresh notification under Section 4(1) after almost a year, surely the inquiry under Section 5A which is summary in nature could have been allowed to be completed. (28). Mr. R.K. Mathur, the counsel for the respondent No.2 would submit that on 21.4.1994, the award was passed by the Land Acquisition Officer and the said award having not been challenged in the writ petition, the acquisition proceedings have culminated into finality and, therefore, the order of the Single Judge does not call for any interference. (29). We are not impressed by the submission of Mr. R.K. Mathur. It is not in dispute that at the time the writ petition was filed by the petitioner, the award has not been passed. (29). We are not impressed by the submission of Mr. R.K. Mathur. It is not in dispute that at the time the writ petition was filed by the petitioner, the award has not been passed. Obviously, therefore, there was no occasion for the petitioner to challenge the award. Moreover, there also seems to be no dispute that the appellant (petitioner) continues to be in possession of the subject land. The acquisition proceedings, thus, cannot be said to have culminated into finality. The invocation of the urgency clause and the dispensation of the inquiry under Section 5A, as noticed above, are not legally sustainable. Surely that affects all actions pursuant to the notification, issued under Section 4(1). (30). Resultantly, this special appeal is allowed in part. The notification dated 20.1.1992 to the extent is invokes under Section 17(4) of the Land Acquisition Act with regard to the land bearing Khasra No.1468 (1 acre and 10 biswa) situate at Chak Nasarbad, Tehsil Khairthal District Alwar is set aside. As a necessary corollary, the notification issued on 9.3.1992 under Section 6 of the Land Acquisition Act has to go and is also quashed. The State Government is at liberty to proceed with the inquiry under Section 5A pursuant to the notification dated 20.11.1992 issued under Section 5(1) of the Land Acquisition Act. The parties shall bear their own costs. End of the Volume 2007(2) - Revenue Judgments