JUDGMENT 1. A notification was issued by the first respondent in G.O.No.120, Municipal Administration and Water Supply Department dated 29.08.2007 publishing a notification under Section 4(1) of the Land Acquisition Act, 1894 for the acquisition of a total extent of 8.55.0 Hectares of land comprised in S.F.No.481/1/, 481/2 and 482 (part) in Palakapalayam Village, Tiruchengode Taluk, Namakkal District for the purpose of providing a compost yard for Komarapalayam Municipality. The Government also decided to use the emergency powers available under Section 17 of the Land Acquisition Act for effecting acquisition of lands by dispensing with the enquiry under Section 5-A of the Act. The Revenue Divisional Officer, Tiruchengode (second respondent) was authorized to exercise the powers of the Collector in respect of the proposed acquisition. Such a notification in exercise of the powers of the Governor under Section 17(4) has also been incorporated in the impugned Government Order. 2. The petitioner Nalliaya Gounder and seven others are the joint owners of the above said land proposed to be acquired. Soon after the publication of the above said Government Order, the petitioner approached the Court with the present writ petition praying for the issue of a writ of certiorarified mandamus calling for the records relating to the above said notification and to quash the same and for a further direction forbearing the respondents from initiating further proceedings under the Land Acquisition Act in respect of the above said lands. Besides contending that the said land was selected for providing a compost yard for the Komarapalayam municipality even though more extent of waste poramboke land belonging to the Government are available, the petitioner has also contended that the invocation of the emergency provision dispensing with Section 5-A enquiry is unsustainable as there was no urgency and the notification also does not refer to the nature of urgency. Further ground raise by the petitioner is that the cultivable lands, which are used for cultivation, being the main source of income for the petitioner, are sought to be snatched from him using the eminent domain for the purpose of a waste management yard without even giving an opportunity to the petitioner to put forth his objection for the proposed acquisition. The petitioner has also contended that in the surroundings of the land proposed to be acquired, there are a number of educational institutions and several residential colonies and the creation of a waste management yard exposed to open air and light would pose a potential health hazard to the residents of the neighbouring villages and several thousands of students studying in the neighbouring colleges and schools. Based on the above said contention, the petitioner has sought for the issuance of a writ of certiorarified mandamus for the quashing of the notification and for a direction forbearing respondents 1 and 2 from proceeding further with the acquisition proceedings. 3. Since the waste management yard / compost yard was proposed to be created for the benefit of Komarapalayam Municipality, the Commissioner of Komarapalayam Municipality got impleaded as the third respondent. 4. The prayer in the writ petition is resisted by the respondents contending that there was no potential health hazard to the residents of the neighbouring villages or the students of the nearby institutions because residential flats of the nearby villages and the educational institutions situate beyond 500 meters from the proposed compost yard; that the Pollution Control Board found the proposed solid waste management yard did not come within 500 meters from the residential areas and the educational institutions and hence, no objection certificate was issued by the Pollution Control Board and that hence the contention that the proposed compost yard for solid waste management yard will pose a health hazard to the nearby village and students studying in the nearby institutions could not be accepted as a valid ground for challenging the acquisition proceedings. It is also contended that in view of a resolution dated 16.02.2005 passed by the Komarapalayam Municipality citing the judgment of the Supreme Court made in W.P. (Civil) No.888 of 1996, the lands were sought to be acquired using the urgency clause; that the acquisition proceedings were initiated invoking the urgency clause under Section 17(2) of the Land Acquisition Act, 1894; that invocation of the urgency clause under Section 17(2) of the Land Acquisition Act was a bonafide and proper exercise and hence, the present writ petition filed challenging the acquisition proceedings should be dismissed. 5. 5. Mr.G.Ethirajulu, learned counsel for the petitioner, Mr.M.S.Ramesh, learned Additional Government Pleader for Respondents 1 and 2 and Mr.M.Digvijayapandian, learned counsel for the third respondent advanced their arguments in line with the contentions made by the parties in the affidavit filed in support of the writ petition and in the counter affidavits respectively. 6. Mr.G.Ethirajulu, learned counsel for the petitioner argued that the acquisition proceedings initiated by the issuance of the impugned Government Order in G.O.No.120, Municipal Administration and Water Supply Department dated 29.08.2007 could not be sustained in law as the same could be termed a colourable exercise of power and that thousands of acres of waste poramboke land belonging to the Government is available within and nearby the Municipal limits of Komarapalayam Municipality and without using a part of the same for the proposed solid waste management yard / compost yard the land concerned in this writ petition was selected for the said purpose. It is his further contention that as the petitioner did have valid ground of objection for the proposed acquisition, with a view to deny the valuable right of putting forth the objections, the acquisition proceedings were initiated invoking the urgency clause when there was in fact no such urgency, that too without mentioning the nature of urgency and the circumstances under which the urgency clause was invoked. It is the further contention raised by the learned counsel for the petitioner that subclause (1) and sub-clause (2) of Section 17 contemplate different kinds of urgency; that for invoking the urgency powers under Sub-clause (2), the case must be brought within the ambit of the said sub-clause whereas any other kind of urgency shall justify the invocation of the emergency powers under Sub-clause (1) of Section 17 of the Land Acquisition Act, 1894. Pointing out the fact that the notification does not refer to subclause (1) of Section 17 and on the other hand, it refers to Sub-clause (2) of Section 17, the learned counsel for the petitioner argued that no such emergency as contemplated under Sub-clause (2) of Section 17 has been established by the respondents to sustain the initiation of the acquisition proceedings dispensing with the enquiry under Section 5A of the Land Acquisition Act. 7. 7. Per contra, learned Additional Government Pleader and the counsel for the third respondent argued that the question of urgency is based on the subjective satisfaction of the Government, which subjective satisfaction has been clearly revealed in the notification; that the reason for such subjective satisfaction need not be stated in the notification and that hence the order cannot be impugned on the ground of failure to state the nature of urgency and other particulars on which the Government formed its subjective satisfaction to dispense with Section 5-A enquiry. 8. This Court paid its anxious considerations to the respective submissions made on behalf of the parties. The materials placed before the Court were also taken into consideration. 9. For the establishment of a waste management yard/compost yard for Komarapalayam municipality, the lands comprised in S.F.Nos.481/1, 481/2 and 482 (part) in Patta No.1151 and 1327 in Palakapalayam Village, Tiruchengode Taluk, Namakkal District totally measuring 8.55.0 Hectares were sought to be acquired based on G.O.No.120, Municipal Administration and Water Supply Department dated 29.08.2007. Besides seeking initiation of acquisition proceedings, the resolution also sought invocation of the emergency powers under Section 17 of the Land Acquisition Act to dispense with the enquiry under Section 5-A of the Land Acquisition Act. As per the averments made in the counter affidavit, G.O.No.120 Municipal Administration and Water Supply Department dated 29.08.2007 came to be passed publishing the notification under Section 4(1) and at the same time dispensing with Section 5-A enquiry invoking the emergency powers under Section 17 of the Act. However, the notification does not refer to subsection (1) of Section 17 and on the other hand, it refers to sub-section (2) of Section 17. 10. As rightly contended by the learned counsel for the petitioner, there is a difference between cases falling under sub-section (1) and cases falling under Sub-section (2) of Section 17. So far as cases covered by sub-section (2) are concerned, since the section itself enumerates the purposes for which the emergency powers can be used, it would be sufficient to state the purpose as contemplated in sub-section (2) and the same shall be enough to invoke the emergency provisions dispensing with Section 5-A enquiry. So far as cases covered by sub-section (2) are concerned, since the section itself enumerates the purposes for which the emergency powers can be used, it would be sufficient to state the purpose as contemplated in sub-section (2) and the same shall be enough to invoke the emergency provisions dispensing with Section 5-A enquiry. On the other hand, if the case does not fall under any one of the categories of the emergency contemplated in Sub-Section (2) of Section 17, then sub-section (1) of Section 17 can be invoked and in such an event, not only the purpose, but also the reasons why the acquisition is sought to be made invoking the urgency clause should be stated. Otherwise, it shall amount to giving a blanket power to deny the valuable right of land owners or the persons having interest in the land to raise objections against the proposed acquisition. 11. For better appreciation Section 17(1) and (2) are reproduced: "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 of the [appropriate Government], enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances." As per Sub-section (1), in case of other emergency (other than unforeseen urgencies covered by Sub-Section (2)), whenever the appropriate Government so directs, the Collector may on the expiration of 15 days from the date of publication of notice under Section 9(1) take possession of the land needed for public purpose even though no award has been made. Hence for invoking the urgency provision under Sub-clause (1) of Section 17, certain condition are to be fulfilled, namely issuance of notice under Section 9(1) and allowing the expiry a period of 15 days from the date of publication of such notice. Such a condition precedent is not required in case of emergencies contemplated under sub-clause (2) of Section 17. 12. In this regard, Hon'ble Justice F.M.Ibrahim Kalifulla, Judge of this Court as he then was, dealt with a similar case in Koppinedi and Others Vs. Union Territory of Pondicherry Rep. by Joint Secretary, Revenue, Pondicherry reported in 2005 Writ L.R.530. Referring to the observations made by the Supreme Court in Union of India and Others Vs. Mukesh Hans reported in 2004 (7) Supreme 407 , the Hon'ble Judge made the following observations: "8. Therefore, mere reference to Section 17(1) and 17(4) of the Land Acquisition Act by itself would not ipso facto mean that dispensation with the enquiry under 5-A was imminent under all circumstances. Mukesh Hans reported in 2004 (7) Supreme 407 , the Hon'ble Judge made the following observations: "8. Therefore, mere reference to Section 17(1) and 17(4) of the Land Acquisition Act by itself would not ipso facto mean that dispensation with the enquiry under 5-A was imminent under all circumstances. As law has now developed as regards invocation of Section 17(1) and 17(4) of the Act, in a case on hand where it is contended that there are enough water storage facilities available in Kanakalpet village, to meet the requirements, the question would be whether there would still be scope for invoking the emergency provision under Section 17(4) of the Act in order to dispense with the enquiry under Section 5-A and thereby deprive the valuable rights of the petitioners to own their lands in question. 9. Having regard to the statement of Law found in the case cited and also the averments of the petitioners in the affidavit filed in support of the writ petition as well as the reply affidavit, I am of the considered view that such a notification under Section 17(4) of the Act was not warranted in the facts and circumstances of the case and I am convinced that the petitioners should have been given an opportunity to putforth their objections as against the acquisition sought to be made pursuant to Section 4(1) notification dated 10.03.2000." 13. Relying on the above said observations made in Koppinedi and Others Vs. Union Territory of Pondicherry Rep. by Joint Secretary, Revenue, Pondicherry reported in 2005 Writ L.R.530, learned counsel for the petitioner argued that facts of the case on hand are comparable to the facts of the said case and that hence, in this case also the reliance made on the emergency provision to dispense with Section 5-A enquiry is to be held without proper application of mind and malafide. 14. As an answer to the above said contention of the learned counsel for the petitioner, learned Additional Government Pleader, who is supported by the counsel for the third respondent has relied on the judgment of the Supreme Court in Union of India and Others Vs. 14. As an answer to the above said contention of the learned counsel for the petitioner, learned Additional Government Pleader, who is supported by the counsel for the third respondent has relied on the judgment of the Supreme Court in Union of India and Others Vs. Praveen Gupta and Others reported in (1997) 9 Supreme Court Cases 78 and contended that the appropriate Government is not required to pass a reasoned order for invoking the emergency clause as the decision to invoke the emergency clause is only an administrative decision. The learned Additional Government Pleader also contends that the language of the notification shall not be conclusive proof of urgency and that the Court has to see based on the materials if there exists urgency to dispense with Section 5-A enquiry. 15. The facts of the said case decided by the Hon'ble Supreme Court are different from the facts of the case on hand and the same can be distinguished. In the case before the Supreme Court, Timber business was being carried on in the walled city of Old Delhi, which was the source of traffic congestion requiring immediate shifting of the same to the new place where the timber depots were to be relocated and hence Hon'ble Supreme Court held that there was urgency and the invocation of the urgency clause was proper. However in the later judgments of the Supreme Court, the Supreme Court held that the invocation of the urgency provisions under Section 17 was not justified and quashed the notifications made under Section 4(1) r/w. 17(4) of the Land Acquisition Act. The said cases are 1) Anand Singh and Another v. State of Uttar Pradesh and Others reported in (2010) 11 SCC 242 ; 2) State of West Bengal and Others Vs. Prafulla Churan Law and Others reported in (2011) 7 MLJ 395(SC); 3) Devendra Singh and Others Vs. State of U.P and Others reported in (2012) 1 MLJ 994 (SC). 16. In the first case, the Hon'ble Supreme Court has made the following observations: "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. 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." Relying on the said observation, the Hon'ble Supreme Court once again in the judgment cited second above made the following observations: “TAMIL” 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 realising 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." 17. In the case cited third above, the Hon'ble Supreme Court has made following observations: "9......it is well settled that acquisition of the land for public purpose by itself shall not justify the exercise of power of eliminating enquiry under Section 5-A in terms of Section 17 (1) and Section 17 (4) of the Act. In the case cited third above, the Hon'ble Supreme Court has made following observations: "9......it is well settled that acquisition of the land for public purpose by itself shall not justify the exercise of power of eliminating enquiry under Section 5-A in terms of Section 17 (1) and Section 17 (4) of the Act. The Court should take judicial notice of the fact that certain public purpose such as development of residential, commercial, industrial or institutional areas by their intrinsic nature and character contemplates planning, execution and implementation of the schemes which generally takes time of few years. Therefore, the land acquisition for said public purpose does not justify the invoking of urgency provisions under the Act." 18. In this regard, it shall be helpful to refer to the judgment of a Hon'ble single Judge of this Court in Kodanad Estate V. Principal Secy to the Government, Rural Development & Panchayat Raj Deptt, State of Tamil Nadu reported in (2011) 2 LW 607 . The learned Judge has clearly brought out the distinction between Section 17(1) and Section 17(2) of the Land Acquisition Act and observed that urgency clause found under Section 17(1) cannot be equated with the emergency clause set out under Section 17(2) r/w. Section 17(4) of the Act. In the said case, the Government had invoked urgency clause under Section 17(1) of the Land Acquisition Act to dispense with the enquiry under Section 5A of the Land Acquisition Act. The learned single Judge was of the view that subsection (2) of Section 17 contemplates a different type of urgency in as much as it should be an unforeseen emergency; that under the said section if the appropriate Government was satisfied that such unforeseen emergency has arisen, it can take possession of the land even without waiting for the 15 days period after the issuance of notice contemplated under Section 9(1) of the Act. 19. The Hon'ble Single Judge has made following observations: "As can be seen from the long line of decisions, that the urgency clause found under S.17(1) cannot be equated with the emergency clause set out under S.17(2) read with S.17(4). Therefore, the attempt by the Advocate General to rely upon the State amendment under Section 17 for justifying the impugned order is misconceived and not warranted under the facts of this Case. Therefore, the attempt by the Advocate General to rely upon the State amendment under Section 17 for justifying the impugned order is misconceived and not warranted under the facts of this Case. Since in the impugned notification, the State Government had not referred to the application of S.17(2), which involves certain mandatory conditions precedent, but it had only referred to S.17(1) and there being no real urgency in invoking the clause to dispense with the valuable right of the land owner under S.5-A is wholly illegal and that the order is liable to be set aside on this ground also." 20. Though a number of purposes have also been enumerated in Sub-clause (b) as the purposes for which the emergency clause can be invoked, it is obvious that the purpose for which the lands in question are sought to be acquired in this case does not fall in any one of the categories of the purposes listed in sub-clause (b) of Sub-Section (2) of Section 17 as the state amendment. 21. Even assuming that the creation of a compost yard is covered by sub-clause (2), the mere fact that the purpose falls under sub-clause (2) of Section 17 does not mean that the emergency clause should be invoked indiscriminately without considering whether it is necessary to invoke the urgency clause or not. The mere fact that a land is needed for a public purpose and that conducting enquiry under Section 5-A of the Act would involve time consuming exercise alone shall not be the justification for invoking the urgency clause to take away the valuable right of the land owners /persons interested in the land to raise their objections against the proposed acquisition. 22. In the case on hand, though nothing has been mentioned in the notification, invocation of the urgency clause was sought to be justified by relying on the case pending before the Supreme Court in W.P. (Civil) No.888 of 1996. A copy of the order of the Supreme Court dated 04.10.2004 has also been produced. In an earlier order dated 26.07.2004 direction had been issued for drawing an action plan for solid waste management and for implementation of the same at the first instance in all the Metropolitan cities and State capitals to be extended to the other cities / Municipalities. In an earlier order dated 26.07.2004 direction had been issued for drawing an action plan for solid waste management and for implementation of the same at the first instance in all the Metropolitan cities and State capitals to be extended to the other cities / Municipalities. Pursuant to the same, a committee appointed by the Supreme Court submitted a report and by the order dated 04.10.2004, the Supreme Court directed the Central Government and concerned SPCEs/PCCs to examine the suggestion made by the committee and respond. A reading of the same would show that the direction was to implement the waste management scheme in the state capitals and the metropolitan cities which would be gradually extended to the other cities and other municipalities. The said order cannot be cited as a justification for invoking the urgency clause dispensing with Section 5-A enquiry. Komarapalayam is neither a State capital nor a metropolitan city. It is only a municipality. There is nothing to show that in all City municipal corporations in Tamil Nadu, the scheme has been implemented. Under such circumstances, the contention of the petitioner that even though there are 1000 acres of poramboke land, which can be converted into waste management yard/compost yard, the agricultural lands of the petitioner were sought to be snatched away by using the eminent domain of the State without even giving an opportunity to the petitioner and other land owners to raise their objections as to why the property should not be acquired for the said public purpose and to show the availability of other suitable lands with the Government and that the compost yard could be made using the land available with the Government without there being any necessity to acquire agricultural lands has got to be countenanced. The petitioner has also applied for necessary information regarding the particulars of Poramboke lands available in and around Komarapalayam Municipality and in the area concerned. However, the particulars were not furnished. The petitioner has also applied for necessary information regarding the particulars of Poramboke lands available in and around Komarapalayam Municipality and in the area concerned. However, the particulars were not furnished. Hence, as rightly contended by the learned counsel for the petitioner, this Court has to make an adverse inference that there are large extents of poramboke lands belonging to the Government and hence this Court has to hold that the contention of the petitioner that the urgency clause has been invoked only to prevent the petitioner and other land owners from pointing out the availability of larger extent of lands with the Government itself which could be used as compost yard has got to be accepted. 23. For all the reasons stated above, this Court comes to the conclusion that the invocation of urgency clause under Section 17(2) is not justified and hence the notification in G.O.No.120, Municipal Administration and Water Supply Department dated 29.08.2007 is bound to be quashed. After the filing of the writ petition, this Court has ordered status-quo and subsequently the order was made absolute. Therefore, the subsequent passing of the award shall be of no consequence. Accordingly, the writ petition is allowed and the notification in G.O.No.120, Municipal Administration and Water Supply Department dated 29.08.2007 is set aside. So far as the prayer for direction in the nature of negative mandamus not to proceed with the acquisition proceedings is concerned, this Court is of the considered view that such a blanket order is not justifiable in view of the fact that impugned notification is set aside on the ground of improper invocation of the emergency clause and not on the ground that the purpose for which the land was sought to be acquired was not a public purpose and that hence, the said part of the prayer has got to be negatived with the observation that the Government can proceed with the acquisition proceedings by issuing a fresh notification under Section 4(1) whereupon opportunity to raise objections shall be given to the petitioner and other land owners. No costs.