COMMON ORDER: 1. These two writ petitions are connected and are being disposed of by this common order. 2. Heard Smt. N.Indrani, learned counsel appearing for the petitioner in W.P.No.19883 of 2004, Sri Sitharam Chaparla, learned counsel appearing for the petitioners in W.P.No.21803 of 2004 and the learned Assistant Government Pleader for Land Acquisition appearing for the official respondents in both the cases. 3. Petitioner in W.P.No.19883 of 2004 is a Temple, viz., Sri Seetharama Swamy Temple (hereinafter referred to as ‘Temple’) situated in Suryaraopet locality of Kakinada Town, East Godavari District. Petitioners in W.P.No.21803 of 2004 claim to be the lessees of the said Temple. In both the writ petitions challenge is to the draft notification Ref.No.G2/8828/2003 dated 19.01.2004 published in the East Godavari District Gazette Extraordinary, dated 20.01.2004. issued under Section 4(1) of the Land Acquisition Act, 1894 (for brevity ‘the Act’) proposing to acquire the temple’s land for providing house sites to weaker section people. 4. Undisputed facts are that, the Temple is the owner of land measuring Ac.2.30 cents situated in Sy.No.85/3 of Mogilipalem Village, Kajuluru Mandal. The said land was proposed to be acquired in pursuance of the impugned notification dated 19.01.2004 (published in Gazette on 20.01.2004) for providing house sites to the poor. Draft declaration was published in the District Gazette dated 23.01.2004. While proposing to acquire the said land, urgency clause under Section 17(4) was invoked dispensing with the enquiry under Section 5-A of the Act. 5. The impugned notification is assailed on the substantive ground that there is no justification for dispensing with enquiry under Section 5-A of the Act. According to the petitioners, the purpose, viz., provision for house sites, does not involve any urgency warranting invocation of Section 17(4). They plead that the subject land is not fit for house sites since it is a wet land and is far away from the village. They state that there are other Government poramboke lands adjacent to the village, which are more convenient and fit for the notified purpose. They further plead that there is no justification in acquiring the endowment land, which has been endowed for the purpose of maintenance of the Temple, and that the proposal to acquire these lands are contrary to the guidelines issued by the State Government in G.O.Ms.No.456, date 29.09.1995. Thus according to the petitioners the impugned proposal is not sustainable. 6. They further plead that there is no justification in acquiring the endowment land, which has been endowed for the purpose of maintenance of the Temple, and that the proposal to acquire these lands are contrary to the guidelines issued by the State Government in G.O.Ms.No.456, date 29.09.1995. Thus according to the petitioners the impugned proposal is not sustainable. 6. The Revenue Divisional Officer & Land Acquisition Officer has filed counter affidavit seeking to justify the proposal. The counter states that enquiry under Section 5-A was dispensed with in view of the urgency to provide house sites. It is stated that after due publication of the draft notification and declaration, award enquiry was held on 16.02.2004 after issuing notices on 11-02-2004 under Section 9(1), 9(10), 9(3) and Section 10 of the Act. The Temple authorities did not appear in that enquiry, and therefore market value was tentatively fixed at Rs.1,02,000/-per acre and an amount of Rs.2,43,984/-towards 80% of compensation was tendered to the Temple authorities on 16.02.2004. The Temple authorities have not received the said amount so far and the amount is kept in bank deposits. It is further stated that the land was taken possession on 21.02.2004. Therefore, according to the respondents the impugned acquisition proposal is legal and valid and the same does not warrant interference. 7. In the light of the afore said contentions, the question that falls for consideration is whether there is justification in dispensing with the enquiry under Section 5-A by invoking the urgency clause under Section 17(4) of the Act in a case of acquisition of land for the purpose of providing house sites. 8. Property rights are constitutionally protected. No person shall be deprived of his property except by authority of law. Land Acquisition Act has been enacted authorising compulsory acquisition of private properties. Power vested in the authorities by the Act cannot be exercised casually and in a routine manner. As a general rule, before taking over the land, a person interested therein shall have to be duly heard. In terms of Section 5-A of the Act, any person interested in the land should be given an opportunity to submit objections opposing the acquisition and he is entitled for an opportunity of being heard. This is a valuable right conferred on the landowner or any person interested therein. In terms of Section 5-A of the Act, any person interested in the land should be given an opportunity to submit objections opposing the acquisition and he is entitled for an opportunity of being heard. This is a valuable right conferred on the landowner or any person interested therein. It is only after following the said procedure a declaration can be validly made under Section 6 of the Act. 9. An exception is carved out under Section 17(4) of the Act, wherein the requirement of enquiry under Section 5-A of the Act is dispensed with. It is provided therein that the appropriate Government may direct that the provisions of Section 5-A of the Act shall not apply. This power is exercisable in exceptional cases only on the formation of opinion as to the necessity to dispense with the enquiry under Section 5-A of the Act. Therefore, unless it is shown that there exists urgency for invoking the urgency clause, and the appropriate Government had formed its opinion on application of mind on the basis of some material in that regard, enquiry under Section 5-A cannot be dispensed with. 10. The Apex Court in Radhey Shyam v. State of U.P. 2011 (5) SCC 553 has elaborately considered the rights of the parties vis-à-vis the power of the authorities for acquiring private properties under the Land Acquisition Act. After elaborately considering the circumstances in which urgency clause can be invoked bypassing enquiry under Section 5-A, the Apex Court held that – the property of a citizen cannot be acquired by the State or its instrumentalities without complying with the mandate of Sections 4, 5-A and 6 of the Act. A public purpose, however laudable, does not entitle the State to invoke the urgency provisions because the same has the effect of depriving the owner of his right to property without being heard. Only in a case of real urgency, the State can invoke the urgency provisions and dispense with the requirement of hearing the landowner or other interested persons. Section 17(1) read with Section 17(4), which confers extraordinary power upon the State to acquire private property, can be invoked only when the purpose of acquisition cannot brook the delay of even a few weeks or months. Therefore, 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). Therefore, 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). It is further held that 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 the said properties usually take few years. Therefore, the private property cannot be acquired for such purpose by invoking the urgency provision, and in any case, exclusion of the rule of audialterampartemembo died in Sections 5-A(1) and (2) is not at all warranted in such matters. 11. An identical view was expressed in Ram Dhari Jindal Memorial Trust v. Union of India AIR 2012 SC 1878 has held as follows: “The exceptional and extraordinary power of doing away with an enquiry under Section 5-A in a case where possession of the land is required urgently or in an unforeseen emergency is provided in Section 17 of the Act. Such power is not a routine power and save circumstances warranting immediate possession it should not be lightly invoked. The guideline is inbuilt in Section 17 itself for exercise of the exceptional power in dispensing with enquiry under Section 5-A. Exceptional the power, the more circumspect the Government must be in its exercise. The Government obviously, therefore, has to apply its mind before it dispenses with enquiry under Section 5-A on the aspect whether the urgency is of such a nature that justifies elimination of summary enquiry under Section 5-A. A repetition of the statutory phrase in the notification that the State Government is satisfied that the land specified in the notification is urgently needed and the provision contained in Section 5-A shall not apply, though may initially raise a presumption in favour of the Government that prerequisite conditions for exercise of such power have been satisfied, but such presumption may be displaced by the circumstances themselves having no reasonable nexus with the purpose for which the power has been exercised. Upon challenge being made to the use of power under Section 17, the Government must produce appropriate material before the Court that the opinion for dispensing with the enquiry under Section 5-A has been formed by the Government after due application of mind on the material placed before it. It is true that power conferred upon the Government under Section 17 is administrative and its opinion is entitled to due weight, but in a case where the opinion is formed regarding the urgency based on considerations not germane to the purpose, the judicial review of such administrative decision may become necessary. As to in what circumstances the power of emergency can be invoked are specified in Section 17(2) but circumstances necessitating invocation of urgency under Section 17 (1) are not stated in the provision itself. Generally speaking, the development of an area (for residential purposes) or a planned development of city, takes many years if not decades and, therefore, there is no reason why summary enquiry as contemplated under Section 5-A may not be held and objections of landowners/persons interested may not be considered. In many cases, on general assumption likely delay in completion of enquiry under Section 5-A is set up as a reason for invocation of extraordinary power in dispensing with the enquiry little realizing that an important and valuable right of the person interested in the land is being taken away and with some effort enquiry could always be completed expeditiously. The question is as to whether in all cases of 'planned development of the city' or 'for the development of residential area', the power of urgency may be invoked by the Government and even where such power is invoked, should the enquiry contemplated under Section 5-A be dispensed with invariably……” The Apex Court further held as follows: It must, therefore, be held that the use of the power of urgency and dispensation of enquiry under Section 5-A by the Government in a routine manner for the 'planned development of city' or 'development of residential area' and thereby depriving the owner or person interested of a very valuable right under Section 5-A may not meet the statutory test nor could be readily sustained." If the government seeks to invoke its power of urgency, it has to first form the opinion that the land for the stated public purpose is urgently needed. Such opinion has to be founded on the need for immediate possession of the land for carrying out the purpose for which land is sought to be compulsorily acquired. The use of power of urgency under Section 17(1) and (4) of the Act ipso facto does not result in elimination of enquiry under Section 5A and, therefore, if the government intends to eliminate enquiry, then it has to apply its mind on the aspect that urgency is of such nature that necessitates elimination of such enquiry. The satisfaction of the government on twin aspects viz; (i) need for immediate possession of the land for carrying out the stated purpose and (ii) urgency is such that necessitates dispensation of enquiry is a must and permits no departure for a valid exercise of power under Section 17(1) and (4). In paragraph 51 of the case of Anand Singh (2010 AIR SCW 5152), it has been held that use of the power of urgency and dispensation of enquiry under Section 5A of the Act by the Government in a routine manner for the "planned development of city" or "development of residential area" and thereby depriving the owner or person interested of a very valuable right under Section 5-A may not meet the statutory test nor could be readily sustained (emphasis supplied). Ordinarily, therefore, invocation of urgency power by the government for a Residential Scheme -that does not fall in exceptional category as illustrated in para 50 of Anand Singh (2010 AIR SCW 5152) cannot be held to be legally sustainable.” 12. What emerges from the above judgment is that power under Section 17(4) cannot be exercised in a routine manner and dispensing with the enquiry invoking urgency lause, should be founded on real urgency to carry out the notified purpose on an emergency basis. It is enjoined upon the Government to form an opinion as to the existence of emergency on the basis of some material. 13. In the instant case, firstly no satisfactory explanation has been offered by the respondents except stating that the land is required for providing house sites. This Court perused the record to see if there was any material for invoking the urgency. No material is forthcoming to justify the formation of opinion. What is more important is the very nature of the proposal i.e., providing house sites for construction of houses is itself time consuming. This Court perused the record to see if there was any material for invoking the urgency. No material is forthcoming to justify the formation of opinion. What is more important is the very nature of the proposal i.e., providing house sites for construction of houses is itself time consuming. The nature of activity, viz., construction of houses, even after allotment of sites would take considerable time. Therefore there can be no comprehension in saying that the subject land is required on emergency basis. 14. As noticed above, the petitioners are opposing the acquisition on the ground that the land is unfit for construction of houses and that there is no necessity to acquire the subject land, which is endowment land, since there is abundant government land available in the nearby village. At no stretch of imagination, these objections can be ignored as untenable and brushed aside without holding an enquiry. Further more, though declaration was published on 23.01.2004 and possession was allegedly taken on 21.2.2004, no effort has been made to identify the beneficiaries and hand over the sites to them. It may be noticed that there was no obstruction in taking further steps in the matter at least till 30.11.2004 when orders were issued by this Court to maintain status quo. This Court cannot lose sight of this fact in holding that there was no urgency justifying dispensing with enquiry. 15. The learned Assistant Government Pleader however contends that the proceedings have gone too far a distance and even if urgency could not be properly explained, the acquisition proceedings cannot be upset because the land is vested in the Government as possession was taken on 21.02.2004. It is true that if a person is lawfully dispossessed and possession is validly taken as per law, the land would vest in the Government. On the other hand, if a person is dispossessed unlawfully and possession is obtained by the State contrary to law, such possession has no legal effect. In a case where urgency clause has been invoked, possession cannot be taken until the expiration of 15 days from the date of publication of notice as mentioned in Section 9, as per Section 17(1) and if possession is taken before the expiry of 15 days, the same is not legal. In a case where urgency clause has been invoked, possession cannot be taken until the expiration of 15 days from the date of publication of notice as mentioned in Section 9, as per Section 17(1) and if possession is taken before the expiry of 15 days, the same is not legal. The record in the instant case discloses that Section 9(1) notice was issued on 11.02.2004 and was published in the locality on 14.02.2004 and possession was taken on 21.02.2004. It is therefore clear that possession was taken even before the expiry of 15 days time which is clearly illegal being contrary to Section 17(1). Therefore it cannot be said that the land is vested in the Government. 16. For the aforesaid reasons, this Court is of the view that the proposal to acquire the subject land dispensing with Section 5-A enquiry is untenable. The impugned notification to the extent of dispensing with enquiry under Section 17(4) of the Act is set aside. The respondents shall be at liberty to proceed from the stage of Section 4 notification and take appropriate action after complying with Section 5-A of the Act. 17. The writ petitions are accordingly allowed. No costs. 18. In view of allowing the writ petition W.P.M.P.Nos.28582 & 28583 of 2004 in W.P.No.21803 of 2004 are dismissed as unnecessary.