ORDER 1. The petitioners are owners of agricultural lands at Veppur Village, Vellore District. The lands of the petitioners are sought to be acquired by impugned G.O. Ms. No. 92 (Transport) (I-1) dated 8.5.2012 issued by the third respondent under Section 4(1) read with Section 17(2) and (4) of the Land Acquisition Act, 1894. The petitioners have filed this writ petition to quash the impugned notification on various grounds and the main grounds are: (i) Invocation of emergency clause under Section 17 of the Land Acquisition Act 1894 is arbitrary and without application of mind. (ii) impugned acquisition has resulted in deprivation of the right of livelihood of the petitioners and the deprivation is made arbitrarily and illegally. (iii) Though adequate non-agricultural lands are available, the wet lands of the petitioners are acquired without application of mind. (iv) The original route was altered and the impugned notification was issued to help the Respondent No. 7, who is running a theme park. (v) the impugned notification ignored the recommendation of the District Collector Vellore District dated 26.10.2010. 2. The respondents 1 and 2 have filed a common counter affidavit. The respondents 3 to 5 have also filed a common counter affidavit. The 6th respondent has filed counter affidavit stating that the 7th respondent is conducting business under the name and style of “Theme Thunder” in their land at Veppur and this respondent has no objection for acquiring the same for laying railway track subject to payment of adequate compensation. 3. Though the 7th respondent was served notice, they have not chosen to appear before this Court either in person or through counsel and to file counter affidavit. 4. In the counter affidavits, the respondents refuted the allegations made by the petitioners. According to them the lands are required for laying railway track at Veppur Village in the railway line between Tindivanam and Nagari. According to the respondents, there was no illegality in invoking the emergency provision of the Land Acquisition Act, since the laying of railway track is for public purpose. 5. I have considered the submissions made on either side. 6. The Railways proposed to construct the new Broad Gauge line between Tindivanam and Nagari Section and the said Broad Gauge line passes through Veppur Village also. The Railway Board approved the proposal on 4.7.2008. Before approving the proposal, the final location survey was conducted during the year 2007. 5. I have considered the submissions made on either side. 6. The Railways proposed to construct the new Broad Gauge line between Tindivanam and Nagari Section and the said Broad Gauge line passes through Veppur Village also. The Railway Board approved the proposal on 4.7.2008. Before approving the proposal, the final location survey was conducted during the year 2007. According to the petitioners, in order to accommodate the theme park of the 7th respondent, the original plan was changed and the Railway Track was made to take a bend/ curve. In view of the same, the heritage structures viz., Ponniamman Temple, Tank, Vinayagar Temple and Maternity Hospital, School buildings and the residential houses would be brought down. 7. The villagers of Veppur also made various representations to the District Collector, Vellore. The District Collector came to the Village and inspected the place and wrote a letter dated 26.10.2010 to lay the Railway track without affecting the interest of the villagers. The District Collector noted therein that the village people complained that the proposed railway track was making a bend. 8. A public interest litigation was filed by a resident of Veppur Village in W.P. No. 18632 of 2011 for a direction to the respondents herein to refrain from demolishing the ancient Ponniamman Temple, Agnikulam, Tank, Primary Health Centre, Dalit School etc., in Veppoor Village for the proposed Tindivanam Nagari Railway Project. The respondents 1 and 2 herein filed a counter affidavit in W.P. No. 18632 of 2011. Paragraphs 5 and 6 of the said counter affidavit are extracted hereunder. “5. As regards the other averments of the Petitioner I submit that the final location survey was conducted during the year 2007. The alignment of the Rail track for the above said project was fixed without cut across the tank. This alignment was fixed after critical study and there is no possibility of changing to alternate alignment of the proposed track. 6. The alignment of the Rail track for the above said project was fixed without cut across the tank. This alignment was fixed after critical study and there is no possibility of changing to alternate alignment of the proposed track. 6. I further submit that after joint inspection with the Divisional Revenue Officer (DRO) Vellore, the proposed alignment was formed in such a way that it would not affect the Ponniaman Temple Tank, Vinayagar Temple and the Maternity Hospital and also the school buildings and therefore the apprehension of the petitioner that the proposed alignment would affect the temple, Village tank, Hospital and the School buildings is mis-conceived and ill founded.” The First Bench of this Court recorded the same and closed the writ petition. 9. Thereafter, the impugned notification was issued invoking the emergency provisions under Section 17 of the Land Acquisition Act. The Railway Board approved the project on 21.7.2008 itself. In November 2009 a request for acquisition was made by the railway authorities to the District Collector, Vellore. Thereafter, the Revenue Divisional Officer inspected the land on 28.4.2010. Subsequently, the District Collector inspected the land on 26.5.2010 and wrote a letter dated 9.6.2010 to the Secretary, Transport Department and the Principal Secretary and Commissioner of Land Administration for further action. Pursuant to the same, the Commissioner of Land Administration wrote a letter dated 27.10.2010 to the Government recommending the proposal. While so, on 22.12.2010, a sum of Rs. 16/- crore was paid to the Revenue Divisional Officer, Ranipet as advance payment for acquisition of land. Thereafter, on 9.7.2011, another sum of Rs. 68/- lakhs towards advance payment for acquisition of lands in Veppur was paid to the Revenue Divisional Officer, Ranipet. While so, the Principal Secretary, Transport Department issued a letter dated 28.2.2011 granting necessary sanction for acquisition and thereafter the impugned notification dated 8.5.2012 was issued. 10. The aforesaid dates are furnished by the respondents 1 and 2 and the same would make it clear that more than three years time was available for acquisition of lands and in such an event there was no necessity to invoke the emergency provision of the Act. 11. 10. The aforesaid dates are furnished by the respondents 1 and 2 and the same would make it clear that more than three years time was available for acquisition of lands and in such an event there was no necessity to invoke the emergency provision of the Act. 11. As rightly contended by the learned senior counsel for the petitioners, the Hon’ble Supreme Court in the case of Radhy Shyam and Others v. State of U.P. and Others (2011) 5 SCC 553 has observed that the emergency clause could be invoked only when the purpose of acquisition cannot brook the delay of even a few weeks or months. Paragraph 77 of the said judgment is extracted hereunder: “77. From the analysis of the relevant statutory provisions and interpretation thereof by this Court in different cases, the following principles can be culled out: (i) Eminent domain is a right inherent in every sovereign to take and appropriate property belonging to citizens for public use. To put it differently, the sovereign is entitled to reassert its dominion over any portion of the soil of the State including private property without its owner’s consent provided that such assertion is on account of public exigency and for public good — Dwarkadas Shrinivas v. Sholapur Spg. and Wvg. Co. Ltd., Charanjit Lal Chowdhury v. Union of India and Jilubhai Nanbhai Khachar v. State of Gujarat. (ii) The legislations which provide for compulsory acquisition of private property by the State fall in the category of expropriatory legislation and such legislation must be construed strictly — DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana; State of Maharashtra v. B.E. Billimoria and Dev Sharan v. State of U.P. (iii) Though, in exercise of the power of eminent domain, the Government can acquire the private property for public purpose, it must be remembered that compulsory taking of one’s property is a serious matter. If the property belongs to economically disadvantaged segment of the society or people suffering from other handicaps, then the Court is not only entitled but is duty-bound to scrutinise the action/decision of the State with greater vigilance, care and circumspection keeping in view the fact that the landowner is likely to become landless and deprived of the only source of his livelihood and/or shelter. (iv) The property of a citizen cannot be acquired by the State and/or its agencies/instrumentalities without complying with the mandate of Sections 4 , 5-A and 6 of the Act. A public purpose, however laudable it may be does not entitle the State to invoke the urgency provisions because the same have the effect of depriving the owner of his right to property without being heard. Only in a case of real urgency, can the State invoke the urgency provisions and dispense with the requirement of hearing the landowner or other interested persons. (v) Section 17(1) read with Section 17(4) confers extraordinary power upon the State to acquire private property without complying with the mandate of Section 5-A . These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even a few weeks or months. Therefore, before excluding the application of Section 5-A , the authority concerned must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry under Section 5-A will, in all probability, frustrate the public purpose for which land is proposed to be acquired. (vi) The satisfaction of the Government on the issue of urgency is subjective but is a condition precedent to the exercise of power under Section 17(1) and the same can be challenged on the ground that the purpose for which the private property is sought to be acquired is not a public purpose at all or that the exercise of power is vitiated due to mala fides or that the authorities concerned did not apply their mind to the relevant factors and the records. (vii) The exercise of power by the Government under Section 17(1) does not necessarily result in exclusion of Section 5-A of the Act in terms of which any person interested in land can file objection and is entitled to be heard in support of his objection. The use of word “may” in sub-section (4) of Section 17 makes it clear that it merely enables the Government to direct that the provisions of Section 5-A would not apply to the cases covered under sub-section (1) or (2) of Section 17. In other words, invoking of Section 17(4) is not a necessary concomitant of the exercise of power under Section 17(1). In other words, invoking of Section 17(4) is not a necessary concomitant of the exercise of power under Section 17(1). (viii) The acquisition of land for residential, commercial, industrial or institutional purposes can be treated as an acquisition for public purposes within the meaning of Section 4 but that, by itself, does not justify the exercise of power by the Government under Sections 17(1) and/or 17(4). The Court can take judicial notice of the fact that planning, execution and implementation of the schemes relating to development of residential, commercial, industrial or institutional areas usually take few years. Therefore, the private property cannot be acquired for such purpose by invoking the urgency provision contained in Section 17(1) . In any case, exclusion of the rule of audi alteram partem embodied in Sections 5-A(1) and (2) is not at all warranted in such matters. (ix) If land is acquired for the benefit of private persons, the Court should view the invoking of Sections 17(1) and/or 17(4) with suspicion and carefully scrutinise the relevant record before adjudicating upon the legality of such acquisition.” 12. In the case on hand, more than three years time was available for the respondents but they have resorted to emergency clause of the Act for acquisition of land. The petitioners have a right under Article 19(1)(g) and 300A of the Constitution relating to their property. While so, if the respondent have intended to take away the lands of the petitioners by dispensing with 5A enquiry under the Land Acquisition Act, without giving opportunity to the petitioners to put forth their case, the respondents could do so only, if the project cannot brook the delay of even a few weeks or months as held by the Apex Court as stated above. But, it is not so here in the present case. 13. Further, as rightly contended by the learned senior counsel, even in the case of Special Railway project carried under Chapter 4A of the Railways Act there is no provision for dispensing with the 5A enqiury. Hence, for ordinary railway projects as in the case on hand, the enquiry under Section 5 A of the Land Acquisition Act could not be dispensed with, particularly in view of the Apex Court judgment referred to above. On this ground alone, the impugned order is liable to be quashed. 14. Hence, for ordinary railway projects as in the case on hand, the enquiry under Section 5 A of the Land Acquisition Act could not be dispensed with, particularly in view of the Apex Court judgment referred to above. On this ground alone, the impugned order is liable to be quashed. 14. However, I have proposed to deal with the other grounds issues that are raised in this case. 15. The petitioners have questioned that the original plan was changed to suit the needs of the 7th respondent, who is running the business of theme park at Veppur Village. As stated already though the seventh respondent was served, they have not chosen to appear before this Court. The 7th respondent is running the theme park in the lands of the 6th respondent. As stated already, the 6th respondent has filed counter affidavit stating that they have no objection for acquiring their lands for laying railway track subject to payment of adequate compensation. 16. The District Collector, has sent a letter dated 26.10.2010 to the Secretary, Transport Department and the Principal Secretary and Commissioner of Land Administration for further action besides sending the same to the second respondent herein. The said letter was written by the District Collector after making a visit of Veppur village. In the said letter, he has noted at more than one place that the proposed railway track was making a bend. The relevant passage of the said letter in this regard are extracted hereunder: 17. I have also perused the map of railway track. It takes a bend. They are not able to satisfactorily explain as to why there is a bend at the village. Hence, the submission of the learned senior counsel that the railway track makes a bend so as to accommodate 7th respondent cannot be simply brushed aside in the facts and circumstances of the case. 18. The impugned order was also passed without application of mind and I came to the said conclusion based on the counter affidavit filed by the respondents 3 to 5 itself. There is an apparent contradiction between paragraph 9(d) and 9(g) of the counter affidavit. While it is stated in paragraph 9(d) that the proposed lands for acquisition are not under cultivation for years together, it is stated in paragraph 9(g) that the track passes through the wet lands. There is an apparent contradiction between paragraph 9(d) and 9(g) of the counter affidavit. While it is stated in paragraph 9(d) that the proposed lands for acquisition are not under cultivation for years together, it is stated in paragraph 9(g) that the track passes through the wet lands. Paragraph 9(d) and 9(g) of the counter affidavit of the respondents 3 to 5 are extracted hereunder: “9(d) The lands proposed for acquisition are not under cultivation for years together. Hence proposed to acquire the lands invoking Section 17 of the Land Acquisition Act. .......................... 9(g) In this case the Collector has inspected all the wet lands through which the track has been planned to form and came to the conclusion that the proposed wet lands are inevitable from acquisition.” 19. The impugned notification itself makes it clear that all the lands that are sought to be acquired are wet lands. It is described in the impugned notification that the lands are ryotwari wet. The impugned G.O. refers to various lands and all those lands are described as ryotwari wet lands. Therefore, the learned senior counsel is perfectly correct in his argument that the impugned order was passed without application of mind which does not warrant invocation of the emergency clause. 20. For all the aforesaid reasons, the impugned notification is quashed and the writ petition is allowed. Consequently, the connected M.Ps are closed. No costs. Petition allowed.