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Madhya Pradesh High Court · body

2011 DIGILAW 606 (MP)

Umaraon Singh v. District Collector

2011-05-16

ALOK ARADHE

body2011
ORDER Alok Aradhe, J. 1. In this batch of writ petitions, since common questions of law and facts arise for consideration, they were heard together and are being decided by this common order. For the facility of reference, the facts from Writ Petition No. 18712/2010 are being referred to. 2. The Petitioners who are the owners of agricultural land situate in villages Jalud, Kunda, Mardana, Nagwan and Teliyaon of Tahsil Maheshwar, District Khargone, in the instant writ petitions have impugned the legality and validity of the Notifications dated 31-7-2010 and 1-10-2010 issued under Sections 4 and 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act') by which the lands belonging to the Petitioners are sought to be acquired for Maheshwar Hydel Power Project. The Petitioners also assail the validity of the order dated 26-7-2010 passed by the Commissioner by which permission has been accorded to invoke the urgency clause under Section 17(1) of the Act. The Petitioners also seek quashment of the agreement dated 16-9-2010 executed under Section 41 of the Act between the State Government and Respondent No. 3. 3. The Maheshwar Hydel Electricity Power Project is 400 MW Run of River Scheme which is an integral part of Narmada Valley Development Plan. Initially, the project was conceived and finalized by Narmada Valley Development Authority, Government of Madhya Pradesh in the year 1983. The project was finalized in the year 1988. As the project in question is a power generation project, intended to generate electricity for the State, its implementation was handed-over to Madhya Pradesh Electricity Board. However, subsequently as per the policy of the State Government for promoting private sector participation in power generation, the project was handed over to private promoter, namely, M/s Shri Maheshwar Hydel Power Corporation Public Limited Company (hereinafter referred to as the 'Company'). Thereafter on 28-7-1993 a Memorandum of Understanding (MOU) was executed amongst the Government of Madhya Pradesh, Madhya Pradesh Electricity Board and the Company. Under the aforesaid MOU the Company agreed to establish and operate the Power Station on build, own and operate basis. The Government and the Board took upon the responsibility to get all the statutory clearance, NOCs and permission for establishment, operation and maintenance of power station. The M.P. Electricity Board also agreed to execute the agreement for purchase of power from the company. The Government and the Board took upon the responsibility to get all the statutory clearance, NOCs and permission for establishment, operation and maintenance of power station. The M.P. Electricity Board also agreed to execute the agreement for purchase of power from the company. The MOU further provides that representative of the Government will be on the Board of Directors of the Company. Thereafter, on 11-11-1994 the Madhya Pradesh Electricity Board entered into Power Purchase Agreement with the Company which was subsequently modified on 27-5-1996. As per the modified Power Purchase Agreement the entire power generated from the project is required to be supplied to the Madhya Pradesh State Electricity Board. The tariff of electricity generated from the Project shall be decided by the M.P. State Electricity Regulatory Commission. The Government of India through Ministry of Environment and Forest on 1-5-2001 allowed transfer of environment clearance, earlier accorded to Narmada Valley Development Authority, in favour of the Company on the terms and conditions set out therein. 4. For the purpose of acquisition of land, the company submitted a proposal for acquisition of land in Maheshwar Tahsil which was required for the purpose of implementation of the project and was covered under the submergence area of the project. The Land Acquisition Officer on receipt of proposal forwarded the proposal to the Collector keeping in view the requirement of Section 39 of the Act in respect of villages Jalud as well as Kunda, Mardana, Nagwan and Teliyaon. The Collector vide letters dated 11-3-2010, 14-3-2010 as well as letter dated 16-4-2010 approached the Commissioner, Indore Division. The proposal was forwarded to the State Government. The State Government vide letters dated 10-5-2010, 21-5-2010 and 3-6-2010 granted approval for acquisition of land for project in favour of the Company. To expedite the completion of project the land was required to be acquired urgently. On a request being made by the Company in this behalf vide letters dated 21-7-2010 the same was forwarded by the Collector to the Commissioner vide letter dated 24-7-2010. The Commissioner after receipt of the letter from the Company as well as the recommendation of the Collector considered the matter and vide order dated 26-7-2010 granted permission for invocation of the urgency clause under Section 17(1) of the Act. The Commissioner after receipt of the letter from the Company as well as the recommendation of the Collector considered the matter and vide order dated 26-7-2010 granted permission for invocation of the urgency clause under Section 17(1) of the Act. The Commissioner granted permission to invoke the urgency clause taking into account the facts that the work of the construction of Dam is nearing completion and the land in question is required for submergence. The Commissioner also took into account the fact that the State is facing severe power crisis. Accordingly, the Commissioner came to the conclusion that permission to invoke urgency clause should be granted in the facts and circumstances of the case. 5. Thereafter, a notification under Section 4(1) of the Act dated 31-7-2010 was issued which was published in daily newspaper 'Danik Bhaskar' on 3-10-2010, which was followed by a Notification dated 1-10-2010 under Section 6 of the Act which was published in the gazette on 29-10-2010. In the aforesaid factual background the Petitioners have approached for ventilation of their grievances. 6. Mr. Brian D'Silva, learned senior counsel for the Petitioners has submitted that entire action initiated by the Respondents 1 and 2 for acquisition of the lands in question is procedural ultra vires as the lands in question are being acquired for the purpose of the company. The procedure prescribed under Part VII of the Act ought to have been followed. It has further been submitted that the land acquisition proceedings are vitiated on account of non-compliance of the provision under Sections 39 and 40 of the Act inasmuch as neither any notice nor any opportunity of hearing was afforded to the land owners as contemplated under Section 40 of the Act. It has also been submitted that merely because the electricity would be generated by the project, the same does not make it a project which is being implemented in public interest. It was further submitted that there is no public element involved in completion of the project. It was contended that acquisition is being made for the Respondent No. 3 company as the entire cost of the acquisition of the lands is borne by the Respondent No. 3 company. It was further submitted that the entire project has been transferred to Respondent No. 3 company and, therefore, the acquisition is for the purpose of the Respondent No. 3 company. It was further submitted that the entire project has been transferred to Respondent No. 3 company and, therefore, the acquisition is for the purpose of the Respondent No. 3 company. It has also been argued that action of the Commissioner in permitting the invocation of urgency clause and in dispensing with the enquiry under Section 5-A of the Act is patently illegal and is arbitrary. The impugned action of permitting invocation of urgency clause amounts to violation of principles of natural justice. In support of his submissions, learned senior counsel has placed reliance on the order passed by learned single Judge of this Court in W.P. No. 635/2009, the orders of the Supreme Court passed in S.L.P. No. 8939/2010 and in Sri Radhy Shyam (Dead) through LRs. and Ors. v. State of U.P. and Ors. Civil Appeal No. 3261/2010. 7. Mr. Naman Nagrath, learned Additional Advocate General for the State submitted that the project in question was conceived, initiated and implemented to certain extent by the State Government. Thereafter the same was transferred to the company on the basis of implementation which would not alter the basic nature of the project. The lands are being acquired for the public purpose and the compensation in respect of the lands acquired for the purpose of the project has been paid from the State exchequer. Thus, the lands in question are acquired for the public purpose and, therefore. Part VII of the Act has no application in the obtaining factual matrix of the case. Certain provisions contained in Part VII of the Act were complied with under the misconception of law and in any case there has been substantial compliance of the provisions contained in Part VII of the Act. The non-compliance of the provisions of Part VII of the Act would not render the proceeding initiated by the Respondents invalid. It was further submitted that mere pre or post delay in execution of the project is no ground to contend that there is no urgency involved in the execution of the project. The requirement of second proviso contained in Section 6 of the Land Acquisition Act has been fulfilled as the amount of compensation has been paid substantially from State exchequer. In support of his submissions, learned Additional Advocate General for the State has placed reliance on the decisions Smt. Somawanti and Ors. The requirement of second proviso contained in Section 6 of the Land Acquisition Act has been fulfilled as the amount of compensation has been paid substantially from State exchequer. In support of his submissions, learned Additional Advocate General for the State has placed reliance on the decisions Smt. Somawanti and Ors. v. State of Punjab AIR 1963 SC 151 Jage Ram v. State of Haryana AIR 1971 SC 1033 State of Gujarat and Anr. v. Patel Chaturbhai Narsinbhai and Ors. AIR 1975 SC 629 Deepak Pahwa etc. v. Lt. Governor of Delhi and Ors. AIR 1984 SC 1721 Union of India and Ors. v. Ghanshyam Dass Kedia and Ors. (1996) 2 SCC 285 Union of India and Ors. v. Krishan Lal Arneja and Ors. (2004) 8 SCC 453 . 8. Mr. Shekhar Bhargava, learned senior counsel for the company has submitted that implementation of the project in question was started by the Narmada Valley Development Corporation in the year 1999. The total submergence area of the project is spread over an area of 5700 hectares out of which 4900 hectares of lands belong to State Government. The private land is only to the extent of 870 hectares. Out of aforesaid 870 hectares, 580 hectares of lands have already been acquired by the Respondent No. 3 company by agreement and private negotiation. Only in respect of balance of 290 hectares of lands, the proceeding under the Land Acquisition Act has been initiated. Only 28 hectares of lands are involved in this batch of writ petitions. The amount of Rs. 2700 Crores has already been spent on the project. The acquisition of the lands in question is for the public purpose and, therefore, the provisions under Part II of the Land Acquisition Act would apply. The question of invocation of urgency clause is a matter of subjective satisfaction of the appropriate Government and there is ample material on record to invoke urgency clause under Section 17(1) of the Act. It is too late in the day to challenge the land acquisition proceeding as the project is nearing completion. The challenge to land acquisition proceeding has been made only by a handful of persons. It is too late in the day to challenge the land acquisition proceeding as the project is nearing completion. The challenge to land acquisition proceeding has been made only by a handful of persons. It was further submitted that under the agreement executed between the State and the Respondent No. 3, the State Government has agreed to make available the lands to the Respondent No. 3 company and therefore in view of Section 43 of the Land Acquisition Act, Sections 39 to 42 of the Land Acquisition Act would not apply. Even assuming for the sake of argument, acquisition is under Part VII of the Act then also the procedure prescribed under Part VII of the Act has been substantially complied with. In support of his submissions, learned senior counsel for the Respondent Company has placed reliance on the decisions in Pandit Jhandulal and Ors. v. State of Punjab and Anr. AIR 1961 SC 343 . Somvanti v. State of Punjab AIR 1963 SC 151 Narmada Bachao Andolan v. Union of India and Ors. (2000) 10 SCC 664 Pratibha Nema and Ors. v. State of M.P. and Ors. AIR 2003 SC 3140 Devinder Singh and Ors. v. State of Punjab and Ors. (2008) 1 SCC 728 Tika Ram v. State of U.P. (2009) 10 SCC 689 May George v. Special Tahsildar and Ors. (2010) 13 SCC 98 Nand Kishore Gupta and Ors. v. State of U.P. and Ors. (2010) 10 SCC 282 . 9. I have considered the submissions made by learned Counsel for the parties. The right of citizen to hold the property is subject to right of sovereign to acquire it subject to payment of reasonable compensation. The aforesaid right of eminent domain of the sovereign has got statutory recognition in the form of Land Acquisition Act, 1894. Section 3(f) of the Land Acquisition Act, 1894 defines the expression public purpose. In Sooraram Pratap Reddy v. District Collector Ranga Reddy District (2008) 9 SCC 552 it has been held that expression 'public purpose' as defined under Section 3(f) of the Land Acquisition Act is merely illustrative and not exhaustive. The inclusive definition of Section 3(f) of the Land Acquisition Act does not restrict its ambit and scope. The expression 'public purpose' is incapable of precise and comprehensive definition and it is neither desirable nor advisable to attempt to define it. The inclusive definition of Section 3(f) of the Land Acquisition Act does not restrict its ambit and scope. The expression 'public purpose' is incapable of precise and comprehensive definition and it is neither desirable nor advisable to attempt to define it. It is urged in a generic sense of including any purpose wherein even a fraction of the community may be interested or by which it may be benefited. Besides, the expression 'public purpose' must be decided in each case examining closely all the facts and circumstances of the case. The concept is not static but changes with the passage of time. Public purpose is bound to vary with the times and the prevailing conditions in a given locality and, therefore, it would not be a practical proposition even to attempt a comprehensive definition of it. It is because of this that the legislature has left it to the Government to say what is a public purpose and also to declare the need of a given land for a public purpose. In Devinder Singh and Ors. v. State of Punjab and Ors. (2008) 1 SCC 728 it has been held that definition of public purpose is inclusive one and once the government arrives at the decision that the land sought to be acquired is needed for public purpose, the Court would not go behind it, as the same may furnish a valid argument for upholding an acquisition under Part II of the Act. 10. In Jhandu Lal v. State of Punjab AIR 1961 SC 343 it has been held by the Supreme Court that in case of acquisition for a company simliciter, the declaration cannot be made without satisfying the requirement of Part VII. However an acquisition for company for a public purpose can be made if cost of acquisition is to come out of public funds. Thus, an acquisition for a company may also be made for a public purpose within the meaning of the Act, if part or whole of cost of acquisition is met by public funds. Similar view has also been taken in Somwanti and Ors. v. State of Punjab, AIR 1963 SC 151 and it has been held that even if a token amount towards compensation is paid from State exchequer, it would satisfy the requirements of proviso to Section 6(1) of the Act. Similar view has also been taken in Syam Behari and Ors. Similar view has also been taken in Somwanti and Ors. v. State of Punjab, AIR 1963 SC 151 and it has been held that even if a token amount towards compensation is paid from State exchequer, it would satisfy the requirements of proviso to Section 6(1) of the Act. Similar view has also been taken in Syam Behari and Ors. v. State of M.P. and Ors. AIR 1965 SC 427 . 11. In Pratibha Nema and Ors. v. State of M.P. and Ors. AIR 2003 SC 3140 it has been held by the Supreme Court that satisfaction of the Government as to existence of public purpose is not to be lightly faulted and it must remain in the upper most in the mind of the Court, it has further been held that existence of a public purpose is not a primary distinguishing factor between the acquisition for public purpose under Part II and acquisition for companies under Part VII. The real point of distinction seems to be the source of funds to cover the cost of acquisitions. In other words second proviso to Section 6(1) is the main dividing ground for the two types of acquisition. It has further been held that the distinction between public purpose acquisition and Part VII acquisition has got blurred under the impact of judicial interpretation of relevant provisions. The main and perhaps the deceive distinction lies in the fact whether cost of acquisition comes out of public funds wholly or partly. Even a token or nominal contribution by the Government was held to be sufficient compliance with the second proviso to Section 6 of the Act. Even an acquisition for facilitating the setting up of an industry in private sector could get imbued with the character of public purpose acquisition if only the Government comes forward to sanction the payment of a nominal sum towards compensation. 12. In the backdrop of aforesaid well settled legal position, I may proceed to deal with the issue whether the lands in question are being acquired for the public purpose. The project in question, namely, Maheshwar Hydro Electricity Project is 400 megawatt run of river scheme which is an integral part of Narmada Valley Development Plan. The project is aimed to generate 400 megawatt electricity. The project was initially conceived and finalised by Narmada Valley Development Authority in the year 1983. The project in question, namely, Maheshwar Hydro Electricity Project is 400 megawatt run of river scheme which is an integral part of Narmada Valley Development Plan. The project is aimed to generate 400 megawatt electricity. The project was initially conceived and finalised by Narmada Valley Development Authority in the year 1983. As the project in question is a power generation project its implementation was handed over to the erstwhile M.P. Electricity Board. However, subsequently as per the policy of the State Government for private sector participation, the Government of M.P., Energy Development Department vide communication dated 23-11-1992 had granted Letter of Intent to the Respondent No. 3 company for permitting establishment, owing, operating and maintaining of 10 x 40 MW Maheshwar Hydel Power Station in Khargaon district. 'In principle' clearance was accorded by the Central Electricity Authority and was communicated to the Respondent No. 3 company vide letter dated 21-1-1993. Thereafter the Memorandum of Understanding dated 28-7-1993 was executed between the Government of M.P. and erstwhile M.P. Electricity Board and the Respondent No. 3 company. Under the aforesaid Memorandum of Understanding, the company agreed to establish, operate and maintain the power station on the built own and operate basis. The Government of M.P. and erstwhile M.P. Electricity Board undertook the responsibility to take appropriate action to get all statutory clearances, NOCs and permissions for establishment, operation and maintenance of the power station already obtained by the Board transferred in favour of the company. The Board/Government agreed to execute an agreement for purchase of power from the company. Under the aforesaid Memorandum of Understanding it was also agreed that representative of the Government will be on the Board of Directors of the company. Thereafter on 11-11-1994 the M. P. Electricity Board entered into the power purchase agreement with the company. 13. Under the agreement dated 25-1-1996 executed by the M.P. Electricity Board and the company advance possession of the land as well as other infrastructure which were created by the M.P. Electricity Board were handed over to the company. The said agreement also contains three schedules which mention the details of the various properties, assets, licences, permits and government approvals which were transferred to the company for implementation of the project. The said agreement also contains three schedules which mention the details of the various properties, assets, licences, permits and government approvals which were transferred to the company for implementation of the project. The possession of the land admeasuring 96.975 hectares of land which was acquired by Narmada Valley Development Authority and M.P. Electricity Board for which compensation was paid from the State exchequer, was transferred to the company. A copy of the aforesaid agreement has been brought on record as Annexure R-3/11. Thereafter the power purchase agreement which was executed on 11-11-1994 was further amended on 27-5-1996. An implementation agreement (Annexure R-3/10) was also executed between the Government of M.P. and the company which clearly shows that the Respondent No. 3 is only an implementing agency for the aforesaid project. Under the aforesaid implementation agreement, it was the responsibility of the Government of M.P. to acquire the lands under the provisions of the Land Acquisition Act and to transfer the vacant lands to the Respondent No. 3 company under the lease agreement. 14. Even before the project was handed over to the company, the investment which was made by the State Government as well as the M.P. Electricity Board was to the tune of Rs. 21 Crores which is apparent from the Letter dated 11-10-1996 sent by the M.P. Electricity Board to the Respondent No. 3 company (Annexure R-3/6). There after an amendatory and restated agreement dated 16-9-2005 (Annexure R-3/7) was executed to supplement the agreement dated 23-2-2004 executed between the company, S'Kumars' Ltd., M.P. Electricity Board and Power Finance Corporation Ltd. From perusal of the amendatory and restated agreement it is apparent that the Power Finance Corporation Ltd. had executed a default payment guarantee which means it has given an unconditional, irrevocable and continued guarantee in favour of the trustee as security for Rs. 400 Crores bond issue of the company. Thereafter to back up the default payment guarantee issued by the Power Finance Corporation, the Government of M.P. further issued a counter guarantee. The agreement also stipulates that the Board of Directors of the company will include the Chairman, Managing Director, Director (Finance) recommended by the Power Finance Corporation/ lenders/ nominees of the lenders and Government of M.P./M.P. Electricity Board and also the promoters. The agreement also stipulates that the Board of Directors of the company will include the Chairman, Managing Director, Director (Finance) recommended by the Power Finance Corporation/ lenders/ nominees of the lenders and Government of M.P./M.P. Electricity Board and also the promoters. Similarly, the management team as described in the agreement shall mean the selected members of the Board of the company comprised of Power Finance Corporation nominated and appointed members on the Board and the nominees of any other lenders and the Government of M.P./M.P. Electricity Board appointed by the company to exercise full management control for the smooth implementation of the project, including the funds flow till the entire loan is repaid. 15. Thus, it is apparent that the State Government has agreed 'in principle' to equity participation in the project in lieu of the assets transferred to be company and the project cost and the means of finance as may be approved by the Government of M.P. and the Power Finance Corporation. The agreement also states that in case of default of the company, the Government of M.P. shall have the option to buy out the lenders and to take over the management and control of the company. Thus, from the above narration of the facts it is graphically clear that project costs includes the expenditure and investment made by the State Government which amounts to Rs. 21.25 Crores. The project also involves the funds spent on the project by the M.P. Electricity Board and Narmada Valley Development Authority and the funding of the project has been obtained from various Government financial institutions. A copy of the statement of accounts which shows the funds in the form of term loans from different government financial institutions have been brought on record as Annexure R-3/12. 16. The lands admeasuring 96.975 hectares which form part of the site of the project were acquired for which compensation was paid from State exchequer. The aforesaid lands along with infrastructure were transferred to the company. Thus, requirement contained in second proviso to Section 6(1) of the Act is complied with as amount of compensation in respect of the lands for the project has been paid from public exchequer. The notifications issued under Sections 4 and 6 of the Act also enumerate the public purpose for which the land is being acquired. Thus, requirement contained in second proviso to Section 6(1) of the Act is complied with as amount of compensation in respect of the lands for the project has been paid from public exchequer. The notifications issued under Sections 4 and 6 of the Act also enumerate the public purpose for which the land is being acquired. The project is going to benefit the people of the State as the power generated from the project has to be supplied to the State of M.P. and the project will also enable augmented supply of drinking water to Indore city and adjoining areas under the Asia Development Bank funded Narmada Phase-III. In Nand Kishore Gupta and Ors. v. State of U.P. and Ors. (2010) 10 SCC 282 it has been held that a purpose complementary to public purpose is also a public purpose. The construction of the project in question is of immense importance. Therefore, the acquisition of the lands in question amounts to acquisition for public purpose. Thus, if the facts stated supra are seen in the light of well settled legal position, there remains no scintilla of doubt that the lands in question are being acquired for the public purpose. Therefore, the contention raised on behalf of the Petitioners that the lands are being acquired for purpose of the Respondent No. 3 company does not deserve acceptance and is hereby repelled. 17. The another issue in the case pertains to invocation of urgency clause. Section 17 of the Land Acquisition Act deals with the special powers in cases of urgency Section 17(1) provides that 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 a public purpose. Such land shall thereupon vest absolutely in the Government, free from all encumbrances. 18. The Supreme Court while dealing with the scope of Section 17(1) of the Land Acquisition Act in case of Jai Narain and Ors. v. Union of India and Ors. (1996) 1 SCC 9 held that the question of urgency cannot be determined solely on the expression used in the notification under Section 4 of the Act. The emergency must be reflected in the need of acquisition. v. Union of India and Ors. (1996) 1 SCC 9 held that the question of urgency cannot be determined solely on the expression used in the notification under Section 4 of the Act. The emergency must be reflected in the need of acquisition. The existence of urgency is a matter which is entirely based on the subjective satisfaction of the Government. The Courts do not interfere unless the reasons given are wholly irrelevant and there is no application of mind. In Om Prakash and Anr. v. State of M.P. and Ors. (1998) 6 SCC 1 , it was held that basic condition for invocation of urgency provision under Section 17(4) of the Act is existence of urgency. The Court can examine whether there was any material before the appropriate authority to enable it to arrive at subjective satisfaction about dispensing with inquiry under Section 5-A of the Act. In First Land Acquisition Collector and Ors. v. Nirodhi Prakash Gangoli and Anr. (2002) 4 SCC 160 the Supreme Court held that existence of urgency is a matter of subjective satisfaction of the appropriate Government. The decision to dispense with the enquiry under Section 5-A of the Act by invoking the urgency provision can be challenged only on the ground of non-application of mind and mala fides. The burden lies on the person alleging mala fides to prove the same on the basis of specific materials. In Bhiku Bhai Bitthal Bhai Patel v. State of Gujarat and Anr. (2004) 8 SCC 144 it has been held that the Court is entitled to examine whether there has been any material available with the State Government and reasons recorded if any in the formation of the opinion and whether they have rational connection or relevant bearing on the formation of the opinion. The Court is entitled to examine particularly where formation of the opinion is challenged to determine whether the formation of opinion is arbitrary, capricious or whimsical. In Tika Ram and Ors. v. State of U.P. and Ors. (2009) 10 SCC 689 it has been held that power under Section 17 of the Act dispensing with the inquiry under Section 5-A of the Act has to be exercised in proper manner. It has further been held that there are clear guidelines provided under Section 17(1) read with Section 4 of the Act for understanding the concept of urgency and emergency. It has further been held that there are clear guidelines provided under Section 17(1) read with Section 4 of the Act for understanding the concept of urgency and emergency. In Nand Kishore Gupta and Ors. v. State of U.P. and Ors. (2010) 10 SCC 282 the Supreme Court has held that satisfaction on the part of the executive to dispense with the enquiry under Section 5-A of the Act is a matter of subjective satisfaction. It can be challenged only on the ground of insufficiency of supporting material or on the ground that the order suffers from malice. In the case of Anand Singh and Anr. v. State of U.P. and Ors. (2010) 11 SCC 242 the Supreme Court held that the power under Section 17 of the Act should not be invoked in a routine manner. The guidelines for invocation of power under Section 17 are mentioned in Section 17 itself for exercise of exceptional power under Section 5-A of the Act. The Government has to be circumspect and must exercise the power after applying its mind before invoking the urgency provision and dispensing with the inquiry under Section 5-A of the Act. 19. In the backdrop of the aforesaid well settled legal position, the issue with regard to invocation of urgency clause may be examined. As stated supra, the project is in public interest as it would generate the 400 MW electricity for the State of M.P. which is otherwise facing acute power crises. The completion of the project at the earliest is in public interest. The Respondent No. 3 company with a view to expedite the completion of the project vide letter dated 21-7-2010 requested the Land Acquisition Officer for invocation of urgency clause to make available the lands which were needed for the purpose. In the application, it was stated by the company that construction of the dam is nearly complete and for submergence area, the lands are required urgently. The State Government is facing acute power crisis and early completion of the project would generate revenue. Thereupon the Collector forwarded the request made by the company in respect of the acquisition of the lands comprised in villages, namely, Jalud, Kunda, Mardana, Navagaon and Teliyaon. The State Government is facing acute power crisis and early completion of the project would generate revenue. Thereupon the Collector forwarded the request made by the company in respect of the acquisition of the lands comprised in villages, namely, Jalud, Kunda, Mardana, Navagaon and Teliyaon. The Commissioner vide order dated 18-8-2010, permitted invocation of urgency clause taking into account the fact that the lands of aforementioned village are required for the purpose of submergence area of the dam construction of which was nearly completion. The Commissioner also took into account the fact that the State is facing severe power crisis and commencement of the project shall generate revenue. Thus, from the material available on record and perusal of the reasons which have been assigned by the Commissioner, it cannot be said that the reasons assigned by the Commissioner are wholly irrelevant or there is non-application of mind in the matter of invocation of urgency clause. 20. The question of invocation of urgency clause is a matter which is in the realm of subjective satisfaction of the competent Court. It is well settled in law that the Court would interfere only when the reasons are wholly irrelevant and the same exhibit lack of application of mind which is not the case here. The contention raised on behalf of the Petitioners that implementation of the project started in 1990 and the project is yet to be completed therefore, invocation of urgency clause in the facts and circumstances of the case is bad, also cannot be accepted as it is well settled in law that mere pre-notification delay would not render invocation of urgency provisions void. See: Deepak Pahwa etc. v. Lt. Governor of Delhi and Ors. AIR 1984 SC 1721 and Union of India and Ors. v. Ghanshyam Dass Kedia and Ors. (1996) 2 SCC 285 It is also relevant to mention here that no material has been brought on record by the Petitioners to prove the mala fides. Therefore, no fault, in the facts and circumstances of the case, can be found with the decision of the competent authority in invocation of urgency clause under Section 17(1) of the Act. 21. For the sake of argument, even if the contention of the Petitioners is accepted that acquisition in question is under Chapter VII of the Act, then also no fault can be found with the procedure adopted by the Respondents. 21. For the sake of argument, even if the contention of the Petitioners is accepted that acquisition in question is under Chapter VII of the Act, then also no fault can be found with the procedure adopted by the Respondents. The main ground of attack of the Petitioners to acquisition proceedings is on the ground that provision of Sections 39 and 40 have not been followed. Under the implementation agreement the State has undertaken the responsibility to make available the lands to the company therefore, in view of Section 43 of the Act, the provisions of Sections 39 to 42 would not apply to the acquisition of the lands in question. Therefore, the grievance of the Petitioners that procedure prescribed under Sections 39 and 40 of the Act ought to have been followed, is ill-founded. 22. For yet another reason, no relief can be granted to the Petitioner in the instant petition. Out of 872.92 hectares of private lands falling under submergence of the project, 582.822 hectares have already been acquired by the company by private negotiations. However, with regard to remaining 290 hectares of lands, the lands could not be acquired through private negotiation therefore the State Government has invoked the provisions of Section 17(1) of the Land Acquisition Act, 1894. It is also relevant to mention here that some of the Petitioners had offered to sell their lands to the company vide separate applications which have been brought on record as Annexure R-3/15. However, they did not turn up to receive the amount of compensation. Particulars of the persons are as follows: (a) Dilip Singh s/o Umaraosingh, Petitioner in W.P. No. 18698/2010. (b) Ramlal s/o Chhitu, Petitioner in W.P. No. 18703/2010. (c) Babusingh s/o Gulab Singh Bhagwan s/o Sakharam Mahesh s/o Heeralal Nathibai w/o Bokhar Rameshwar s/o Shobharam Aasharam s/o Kartan All Petitioners in W.P. No. 18704/2010. (d) Mohan s/o Ganpat Bharat Singh s/o Ramsingh Petitioners in W.P. No. 791/2011. Thus, the present petitions appears to have been filed with a mala fide intention with a view to protract the proceedings under the Land Acquisition Act. 23. For the aforementioned reasons, the writ petitions are bereft of merit. Accordingly, the same are hereby dismissed.