Judgment These two writ petitions have been filed challenging G.O.Ms.No.176, MAWS Department dated 112. 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. 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 14. 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. 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:- 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 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. 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 Honble Apex Court. (a) The judgment 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 Honble Apex Court held that "it is fundamental that compulsory taking of mans 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 judgment reported in (2002) 7 SCC page 98 (Union of India vs. Shakunthala Gupta (Dead) by L.Rs, wherein the Honble 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. .(c) The judgment reported in 2004 (8) SCC page 14 (Union of India Vs. .(c) The judgment reported in 2004 (8) SCC page 14 (Union of India Vs. Mukesh Hans), wherein the Honble 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 Honble 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 Honble 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. 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. 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. 1. In support of their contentions, the following judgments 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 judgment 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. 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." .(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 24. 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 24. 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 24. 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 24. 2008 for acquiring the land. Considering all the above aspects, the Government in G.O.Ms.No.120 dated 26. 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 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. 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 Honble Apex Court in the judgments 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 Honble 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 Honble 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. 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. 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. 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-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)." 5. The power of the Government to invoke Section 17(4) of the Act was upheld by the Honble Apex Court in the judgment 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. 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 nobodys 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. 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 Collectorsproceedings 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 211. 2007 .(v) G.O.Ms.No.165, Municipal Administration and Water Supply Department, dated 012. 2007. 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:- "TAMIL” 8. The Collectors proceedings dated nil signed on 21.08.2007 refers about the advice tendered by the minister concerned is extracted here under:- “TAMIL” 9. The letter of The Special Commissioner and Commissioner of Land Administration dated 25.09.2007 addressed to The Collector, Chennai is extracted here under:- "Land Administration Department From To The Special Commissioner and The Collector Commissioner of Land Chennai. Administration. Ezhilagam, Chepauk, Chennai 600 005. Letter No.M2/27936/07 Dated:25.09.2007 Madam, Sub: LandAcquisition – Chennai District – Fort – Tondiarpet Taluk – Tondiarpet Village – S.No.1853/2 etc – Extent 2 Ground 0224 Sq.ft. (5024 Sq.ft) - Acquisition of lands for the formation of over Bridge at Korukupet Kathivakkam High Road, Cocrin Basin Road Railway level crossing Scheme – Acquisition of Lands under urgency clause Sec.17(2) of Land Acquisition Act – 4(1) Notification and D.D.6 proposal received – Regarding. Ref:1.Your Lr.No.07/59771/04 dated: 28. 07. 2. This office Lr.No.M227936/07 dated:25.09.07. I invite your attention to the references cited. 2. Ref:1.Your Lr.No.07/59771/04 dated: 28. 07. 2. This office Lr.No.M227936/07 dated:25.09.07. I invite your attention to the references cited. 2. In this office letter second cited the above proposal under section 4(1) and Draft Declaration under section 6 sent by you, has been recommend to Government for approval and causing publication in the Tamil Nadu Government Gazette and in two Tamil Dailies under urgency clause 17(2) of Land Acquisition Act. 3. In this connection I request you to get the Land Reforms certificate from Assistant Commissioner (LR) and send it to Government directly under intimation to this office. Yours faithfully, Sd/., R.Mahendravel for Special Commissioner and Commissioner of Land Administration. " 10. The Government passed G.O. in G.O.Ms.No.158, Municipal Administration and Water Supply Department, dated 211. 2007 which is usefully extracted here under:- “TAMIL” 11. In pursuant of the same , the Government passed G.O. in G.O.Ms.No.165, Municipal Administration and Water Supply Department, dated 012. 2007 which is extracted here under:- "G.O.(Ms)No.165 Dated:012. 2007 Read: 1. G.O.(Ms)No.80, Municipal Administration and Water Supply Department, dated 11.06.2007. 2. From the Collector of Chennai, Letter No. x7/59771/2007 dated 24.08.2007. 3. From the Special Commissioner and Commissioner of Land Administration, Chennai5 Letter No.M2/27936/2007, dated 25/09/2007. 4. G.O.(Ms)No.158, Municipal Administration and Water Supply Department, dated 211. 2007. **** ORDER: In the Government order fourth read above, the Government accorded administrative sanction for acquiring an extent of 2 Grounds 0224 Sq.ft. (or) 5024 Sq.ft. of lands in S.No.1853/2, etc., at Tondiarpet village, Fort-Tondiarpet Taluk, Chennai District for the formation of Over Bridge at Korukupet Kathivakkam High Road, Cocrin Basin Road Railway Level Crossing Scheme under urgency provisions Section 17(2) of the Land Acquisition Act,1894. 2. The Government approve the proposal of the Collector of Chennai submitted in her letter second read above as recommended by the Special Commissioner and Commissioner of Land Administration in the reference third read above for acquisition of lands in S.No.1853/2, etc., measuring an extent of 2 grounds 0224 Sq.ft. (or) 5024 Sq.ft. of lands for the formation of Over Bridge at Korukupet Kathivakkan High Road, Cocrin Basin Road Railway Level Crossing in Tondiarpet Village, Fort-Tondiarpet Taluk, Chennai District. 3. (or) 5024 Sq.ft. of lands for the formation of Over Bridge at Korukupet Kathivakkan High Road, Cocrin Basin Road Railway Level Crossing in Tondiarpet Village, Fort-Tondiarpet Taluk, Chennai District. 3. The Draft Notification under section 4(1) of the Land Acquisition Act, 1894 submitted by the Collector, Chennai District in her letter second read above are approved and will be published in the Tamil Nadu Government Gazette Extra Ordinary and in two Daily Newspapers (Tamil and English) having wide circulation in Chennai District. 4. The works Manager, Government Central Press, Chennai is requested to publish the appended Notification in the next issue of Tamil Nadu Government Gazette Extra Ordinary and he is requested to furnish 10 copies of the Gazette containing the Notification to the Government in Municipal Administration and Water Supply Department. 5. Four copies of the Notification in Tamil and English are forwarded to the Director of Information and Public Relations, Chennai-9. He is requested to arrange for their publication in Daily Newspapers both in Tamil and English having wide circulation in the Chennai District. The bill of cost for publication of the Notification in dailies may be sent to Collector, Chennai District. 6. The Collector, Chennai District is requested to instruct the Land Acquisition Officer to cause the publication of the substance of the Notification at convenient places in the Locality in Chennai District and also intimate to the Government by Telex the last dates of such publication. (BY ORDER OF THE GOVERNOR) K. DEENABANDU, SECRETARY TO GOVERNMENT." 9. 12. It is curious to note that G.O.Ms.No.165 dated 012. 2007 refers about G.O.Ms.No.80 dated 11.06.2007, Collectors proceedings dated 24.08.2007, Letter of the Special Commissioner and Commissioner of Land Administration dated 25.09.2007 addressed to the Collector and G.O.Ms.No.158 dated 211. 2007. In none of the G.Os or proceedings there is any reference why the emergency provision was invoked dispensing with Section 5A enquiry. Mere existence of urgency alone may not be condition precedent for invoking Section 17 of the Act dispensing with an enquiry contemplated under Section 5A of the Act. As held by the Honble Apex Court in the judgment reported in 2004 (8) SCC 14 , it requires an opinion to be formed by the concerned Government that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with 5A enquiry. As held by the Honble Apex Court in the judgment reported in 2004 (8) SCC 14 , it requires an opinion to be formed by the concerned Government that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with 5A enquiry. The Government has to apply its mind before invoking Section 17 of the Act. The said power cannot be, as held by the Honble Apex Court lightly resorted to except, if it requires an immediate possession of land, proposed to be acquired for public purpose. Though, the power of the Court is very limited in such circumstances, the said exercise must be scrupulously followed when invoking emergency provision under Section 17 of the Act. 9. 13. In fact, the decision cited on behalf of the respondents namely judgment in W.A.No.814 of 2009 and etc., batch, the Division Bench has held that the decision of the authority to dispense with enquiry under Section 5A invoking urgency clause could be challenged not only on the ground of mala fide and colourable exercise of power but also on the ground of non-application of mind. In fact in the decision reported in (2002) 4 SCC 160 , the Honble Apex Court has held that non-application of mind is also one of the ground on which challenge could be made for invoking emergency provision under Section 17, thereby dispensing with 5A enquiry. Paras 12 to 18 of the judgment in W.A.No.814 of 2009 are usefully extracted here under:- "12. The power under Sub-sections (1) & (2) of Section 17 relates to the directions by the appropriate Government to the Collectors to take possession of the land. If the Government invokes the provisions of either Section 17(1) or Section 17(2) and in the opinion the enquiry under Section 5-A should be dispensed with, it can do so under Section 17(4). A combined reading of Section 17(1),(2) & (4) would show that the Government should only satisfy itself as to the invocation of the provisions. .13. While dealing with the power of the Government to invoke the urgency clause under Section 17(1) or unforeseen emergency under Section 17(2) and the invocation of power under Section 17(4) to dispense with the enquiry under Section 5-A of the Act, the Supreme Court in Nandeshwar Prasad and Anr. v. State of U.P., and Ors. (1964) 3 SCR 425 . While dealing with the power of the Government to invoke the urgency clause under Section 17(1) or unforeseen emergency under Section 17(2) and the invocation of power under Section 17(4) to dispense with the enquiry under Section 5-A of the Act, the Supreme Court in Nandeshwar Prasad and Anr. v. State of U.P., and Ors. (1964) 3 SCR 425 . In that case, the Supreme Court had observed as follows: It will be seen that Section 17(1) gives power to the Government to direct the Collector, though no award has been made under Section 11, to take possession of any waste or arable land needed for public purpose and such land thereupon vests absolutely in the Government free from all encumbrances. If action is taken under Section 17(1), taking possession and vesting which are provided in Section 16 after the award under Section 11 are accelerated and can take place fifteen days after the publication of the notice under Section 9. Then comes Section 17(4) which provides that in case of any land to which the provisions of Sub-section (1) are applicable, the Government may direct that the provisions of Section 5-A shall not apply and if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the publication of the notification under Section 4(1). It will be seen that it is not necessary even where the Government makes a direction under Section 17(1) that it should also make a direction under Section 17(4). If the Government makes a direction only under Section 17(1) the procedure under Section 5-A would still have to be followed before a notification under Section 6 is issued, though after that procedure has been followed and a notification under Section 6 is issued the Collector gets the power to take possession of the land after the notice under Section 9 without waiting for the award and on such taking possession the land shall vest absolutely in Government free from all encumbrances. It is only when the Government also makes a declaration under Section 17(4) that it becomes unnecessary to take action under Section 5-A and make a report thereunder. It may be that generally where an order is made under Section 17(1), an order under Section 17(4) is also passed; but in law it is not necessary that this should be so. It may be that generally where an order is made under Section 17(1), an order under Section 17(4) is also passed; but in law it is not necessary that this should be so. It will also be seen that under the Land Acquisition Act an order under Section 17(1) or Section 17(4) can only be passed with respect to waste or arable land and it cannot be passed with respect to land which is not waste or arable and on which buildings stand. .14. Placing reliance on the above judgment, the Supreme Court in Essco Fabs Private Limited v. State of Haryana 2008 (14) Scale 495 has observed in paragraph-33 as follows: .From the above observations, it is clear that even in cases falling under or covered by Sub-sections (1) and (2) of Section 17 of the Act and the Government intends to acquire land in cases of urgency or unforeseen emergency, it is still required to follow procedure under Section 5-A of the Act before issuance of final notification under Section 6 of the Act. It is only when the Government also makes a declaration under Sub-section (4) of Section 17 that it becomes unnecessary to take recourse to procedure under Section 5-A of the Act. 15. A similar question came up for consideration before the Supreme Court in Union of India v. Mukesh Hans (2004) 8 SCC 14 and the Supreme Court had observed as follows: A careful perusal of this provision which is an exception to the normal mode of acquisition contemplated under the Act shows mere existence of urgency or unforeseen emergency though is a condition precedent for invoking Section 17(4) that by itself is not sufficient to direct the dispensation of 5A inquiry. It requires an opinion to be formed by the concerned government that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with 5A inquiry which indicates that the Legislature intended that the appropriate government to apply its mind before dispensing with 5A inquiry. It also indicates the mere existence of qan urgency under Section 17(!) or unforeseen emergency under Section 17(2) would not be themselves be sufficient for dispensing with 5A inquiry. It also indicates the mere existence of qan urgency under Section 17(!) or unforeseen emergency under Section 17(2) would not be themselves be sufficient for dispensing with 5A inquiry. If that was not the intention of the Legislature then the latter part of Sub-section (4) of Section 17 would not have been necessary and the Legislature in Section 17(1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically 5A inquiry will be dispensed with. But then that is not language of the Section which in our opinion requires the appropriate Government to further consider the need for dispensing with 5A inquiry in spite of the existence of unforeseen emergency. This understanding of ours as to the requirement of an application of mind by the appropriate Government while dispensing with the 5A inquiry does not mean that in every case when there is an urgency contemplated under Section 17(1) and unforeseen emergency contemplated under Section 17(2) exists that by itself would not contain the need for dispensing with 5A inquiry. It is possible in a given case the urgency noticed by the appropriate Government under Section 17(1) or the unforeseen emergency under Section 17(2) itself may be of such degree that it could require the appropriate Government on that very basis to dispense with the inquiry under Section 5A but then there is a need for application of mind by the appropriate Government that such an urgency for dispensation of the 5A inquiry is inherent in the two types of urgencies contemplated under Section 17(1) and (2) of the Act. In fact the above provision also has been relied upon by the Supreme Court in Essco Fabs case (supra) and ultimately, in paragraph-45, the Supreme Court had observed as follows: In our opinion, therefore, the contention of learned Counsel for the respondent authorities is not well founded and cannot be upheld that once a case is covered by Sub-section (1) or (2) of Section 17 of the Act, Sub-section (4) of Section 17 would necessarily apply and there is no question of holding inquiry or hearing objections under Section 5A of the Act. Acceptance of such contention or upholding of this argument will make Sub-section (4) of Section 17 totally otiose, redundant and nugatory. 16. Acceptance of such contention or upholding of this argument will make Sub-section (4) of Section 17 totally otiose, redundant and nugatory. 16. A combined reading of the above three judgments would show that whenever the Government invokes urgency clause under Section 17(1) or unforeseen emergency under Section 17(2), it can dispense with the enquiry under Section 5-A of the Act by specifically invoking the provisions of Section 17(4). The only requirement for the Government is that they should apply their mind and satisfy themselves for the invocation of the urgency or unforeseen emergency, as the case may be. This satisfaction need not necessarily be indicated in the notification as such, as has been held by the Supreme Court in Nandeshwar Prasad case (supra), as it would be sufficient if the records borne out such satisfaction. 17. The law on the discretion of the Government to dispense with the enquiry under Section 5-A being statutory in nature, it should be exercised on reasonable grounds and cannot lapse into arbitrariness or caprice. The State authorities must have specific satisfaction based on the relevant material, rule and genuine urgency existed and that any invocation of the urgency clause would not defeat the very purpose of the acquisition. The Court is bound to satisfy itself as to whether the discretion exercised by the Government could be tested on reasonableness and on application of mind to the situation that has warranted for invocation of the clause. 18. How far the power of judicial review could be exercised is yet another question to be considered. As has been held by the Supreme Court in the judgment in Prathiba Nema and Ors. v. State of M.P. and Ors. (2003) 10 SCC 626 , it would be unjust and inappropriate to strike down the notification on the basis of a nebulous plea, in exercise of writ jurisdiction under Article 226 of the Constitution of India. In fact, in Union of India and Ors. v. Krishan Lal Arneja and Ors. (2004) 8 SCC 453 , the Supreme Court has held that the opinion of the Government is entitled to great weight unless it is vitiated by mala fide and colourable exercise of power. In the judgment in First Land Acquisition Collector and Ors. v. Nirodhi Prakash Gangoli and Anr. v. Krishan Lal Arneja and Ors. (2004) 8 SCC 453 , the Supreme Court has held that the opinion of the Government is entitled to great weight unless it is vitiated by mala fide and colourable exercise of power. In the judgment in First Land Acquisition Collector and Ors. v. Nirodhi Prakash Gangoli and Anr. (2002) 4 SCC 160 , the Supreme Court has held that the decision of authority to dispense with the enquiry under Section 5-A and invoking urgency clause can be challenged only on the ground of nonapplication of mind and mala fides. In Nandeshwar Prasad and Anr v. State of U.P. And Ors. (1964) 3 SCR 425 , the Supreme Court has held that there should be application of mind to the facts of the case with special reference to the concession of Section 5-A enquiry under the Act. Whether the discretion is exercised reasonably supported by materials or not depends upon the facts of each case." 14. Thus, considering the over all circumstances and considering the fact that the entire file perused by me does not disclose an application of mind by any of the authorities, why an emergency provision under Section 17 was invoked thereby dispensing with an enquiry under Section 5A of the Act, even though the project is of public importance, this Court is constrained to interfere with the action of the respondents, dispensing with the 5A enquiry. 10. Yet another argument that was made on the side of the petitioners is that the proposal of the construction of the over bridge was made long back and the urgency clause was invoked only in the year 2007. As rightly contended by the learned Government Advocate and the learned counsel appearing for the Corporation, the proposal seems to have been made after due traffic study by appointing expert consultant and the proposal was submitted to the Government and the Government was pleased to approve the same in G.O.Ms.No.80 dated 11.06.2007. Absolutely, there is no delay. Even if there is a delay, in the given circumstances of the case the delay is well explained. Para 21 of the judgment of the Division Bench referred to above is usefully extracted here under:- "21. It was also argued that the proposal for construction of flyover was made in the year 1997 and that the urgency clause has been invoked only in the year 2008. Para 21 of the judgment of the Division Bench referred to above is usefully extracted here under:- "21. It was also argued that the proposal for construction of flyover was made in the year 1997 and that the urgency clause has been invoked only in the year 2008. We may point out that the delay in the invocation of emergency provision by itself would not vitiate the entire acquisition proceedings. On the given facts and circumstances of the case, though a proposal was mooted in the year 1997, the same did not materialise. Only after a detailed study was conducted sometime during the year 2008, it came to be known to the Government as well as the Corporation of Chennai as to the heavy increase of traffic on the roads in question. Hence reports were called for from Anna University and M.s L& T Ramboll and on the basis of the reports, the Corporation of Chennai decided to construct a flyover on its own road and only for the purpose of laying parallel service lanes, had approached the Government for acquisition. Reports were placed before the Government during the year 2008 and on satisfaction the Government approved the proposal by sanctioning 80% of the amount to be tendered initially and thereafter, decided to invoke the emergency provisions by dispensing with 5-A enquiry. Even, otherwise, if there is any delay in the initiation of proceedings, the period to notify the acquisition should be considered only after the reports of Anna University and M/s L&T Ramboll were received. (See the judgment in First Land Acquisition Collector and others v. Nirodhi Prakash Gangoli and another, (2002) 4 SCC 160 .) " 1. Thus there is no delay as contended by the learned counsel for the petitioners and the delay if any is well explained. 11. For the reasons stated above, the proceedings of the respondents made in G.O.Ms.No.176, MAWS Department dated 112. 2007 under Section 6 of the Land Acquisition Act are quashed and the writ petitions stands allowed. Consequently, connected miscellaneous petitions are closed. No costs. 12. Before, parting with the matter, I place on record my appreciation on the counsel Mr.B.Harikrishnan, who has rendered valuable assistance by his well placed arguments through his eloquence and in placing several decisions of the Honble Apex Court.