JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri H.R. Mishra, Senior Advocate, assisted by Sri Amit Kumar Pandey, learned counsel for petitioners, learned Standing Counsel for respondent-1 and Sri Ajeet Kumar Singh, learned counsel appearing for Varanasi Development Authority. 2. This writ petition under Article 226 of Constitution of India has been filed challenging notification dated 10th July 1992 issued under Section 4(1) of Land Acquisition Act, 1894 (hereinafter referred to as ‘Act, 1894’) proposing to acquire a total 147.734 acres of land for planned development at the instance of Varanasi Development Authority (hereinafter referred to as ‘V.D.A.’) for constructing residential colony at Village Lalpur, Pargana Shivpur, Tehsil and District Varanasi. 3. The State Government also invoked provisions under Section 17(1) and (4) of Act, 1894 and stated that land is required urgently, hence to eliminate delay likely to be caused by an inquiry under Section 5-A, Governor directs that Section 5-A shall not apply. 4. Petitioners have further challenged subsequent declaration made vide notification dated 8th July 1993 published in the Gazette extraordinary of same date under Section 6(1) of Act, 1894, wherein total land sought to be acquired mentioned is 145.5665 acres. 5. Initially, 24 petitioners joined in writ petition and petitioners-25 to 38 have been impleaded subsequently but in the writ petition detailed facts of only petitioners-1 to 24 have been mentioned in paras 3 and 4 stating that they purchased disputed land vide sale-deeds executed between 1985 to 1992. The land was owned by M/s Shiv Shankar Sahkari Awas Samiti. In small plots land was purchased by petitioners 1 to 24 from said Samiti. Petitioners, belong to middle income group, have invested their life time earning in purchasing plots for raising construction of residential houses. Some petitioners raised constructions also, whereupon V.D.A. issued notices under Section 27 alleging that constructions are unauthorised and those notices were challenged in appeal before Commissioner, which were pending when impugned notifications were issued. 6. Learned counsel for petitioners has challenged aforesaid acquisition notifications, in so far as inquiry under Section 5-A has been dispensed with, contending that there was no actual urgency. No material existed to show that requirement was urgent. One year time was taken by State in issuing declaration under Section 6 after publication of notification under Section 4. 6. Learned counsel for petitioners has challenged aforesaid acquisition notifications, in so far as inquiry under Section 5-A has been dispensed with, contending that there was no actual urgency. No material existed to show that requirement was urgent. One year time was taken by State in issuing declaration under Section 6 after publication of notification under Section 4. Even otherwise there is no application of mind on the part of State on this aspect that there was no urgency whatsoever, hence inquiry under Section 5-A could not have been dispensed with in exercise of powers under Section 17(1) and (4). Making Section 5-A inapplicable to the acquisition proceedings in question is patently illegal, arbitrary and bad in law. Reliance has been placed on law laid down in Radhy Shyam (Dead) through Lrs. and others v. State of U.P. and others, (2011) 5 SCC 553 and a Full Bench judgment of this Court in Gajraj and others v. State of U.P. and others, 2011(11) ADJ 1 . 7. On behalf of respondents-2 and 3, a counter-affidavit has been filed sworn by Swami Nath Pathak, Special Land Acquisition Officer, Varanasi. It is said that V.D.A. resolved to construct residential colony namely, Lalpur Housing Scheme Phase-I and on a proposal made by it, Collector recommended acquisition of land at village Lalpur. District Magistrate as well as State Government after preliminary inquiry were satisfied with requirement of V.D.A. Notification dated 10th July 1992 was published in daily newspapers ‘Janwarta’ and ‘Bharatdoot’ on 9.11.1992. It was also given vide publicity locally by beat of drum. Thereafter a corrigendum was published on 28.1.1993, which was also published in newspapers. Declaration under Section 6 was published on 8.7.1993 in daily newspapers ‘Sanmarg’ and ‘Baharatdoot’ on 5.9.1993 and 10.9.1993. V.D.A. had deposited about 73 lacs. towards 80% of estimated cost of compensation. 8. V.D.A. has also filed a separate counter-affidavit, wherein also similar facts have been stated. 9. With regard to actual existence of urgency both affidavits were quite silent, hence respondents-2 and 3 filed a supplementary counter-affidavit sworn by Sri Rajendra Prasad, Special Land Acquisition Officer, Varanasi. It was stated therein that V.D.A. filed an application dated 6.6.1990 before District Magistrate, Varanasi requesting for acquisition of land of 147.984 acres at Village Lalpur for construction of a residential colony. It was stated therein that V.D.A. filed an application dated 6.6.1990 before District Magistrate, Varanasi requesting for acquisition of land of 147.984 acres at Village Lalpur for construction of a residential colony. It is also mentioned that there was an urgency in the matter since housing accommodation at Varanasi was highly deficient and for removing the same immediate possession and construction of colony is necessary. Collector got the matter examined and thereafter in the light of report received, forwarded proposal to Director, Land Acquisition vide letter dated 16th June 1992. State Government then issued notification dated 10th July 1992 under Section 4(1) read with Section 17(1) and (4) and said notification was published in U.P. Gazette extraordinary of same date i.e. 10th July 1992. State Government on the basis of material available before it was satisfied that land was urgently and immediately needed and, therefore, dispensed with inquiry under Section 5-A. Subsequently declaration under Section 6 was published on 8th July 1993. The possession of land was taken vide possession memo dated 18.8.1994 and 28.7.1995. Special Land Acquisition Officer, Varanasi also made award on 8.10.1997. Only 139.072 acres of land was taken in possession as is evident from award dated 8.10.1997, copy whereof has been filed as Annexure S.C.A.-6. 10. Another supplementary counter-affidavit has been filed by V.D.A. wherein also similar facts have been stated. However, date of possession of land has been mentioned as 19.8.1994 and 31.7.1995. It is said that petitioners have purchased plots from Arazi No. 373/1, 373/2, 377, 387/1, 394/2 and 394/2 and all these plots have been acquired and possession taken. V.D.A. carved out 1112 plots of different sizes and same have been allotted to prospective candidates. Further 25 acres of land has been allotted to Central Public Works Department; 10 acres has been allotted to Telecommunication Department and 5 acres for Coaching Centres. The aforesaid bodies have commenced construction over allotted land. Plots have also been allotted to Community Health Centre, Library Hall, Shopping Complex and Nursing Home. 108 flats for Economical Weaker Sections (in short ‘E.W.S.’) and 140 flats for Lower Income Group (in short ‘L.I.G.’) have been constructed and allotted. The aforesaid bodies have commenced construction over allotted land. Plots have also been allotted to Community Health Centre, Library Hall, Shopping Complex and Nursing Home. 108 flats for Economical Weaker Sections (in short ‘E.W.S.’) and 140 flats for Lower Income Group (in short ‘L.I.G.’) have been constructed and allotted. In Multi Storied Building, 76 flats of 2 bedrooms and 64 flats of 3 bedrooms have been constructed, which is called Landmark Tower Phase-I. Further 14 flats of 2 bedrooms and 28 flats of three bedrooms have been constructed in Landmark Tower Phase-II. In 3rd Phase i.e. Land Mark Tower Phase-III 36 flats of three bedrooms have been constructed. Huge land has been developed by link-down road and procuring other amenities in the said residential area. 11. In view of the aforesaid developments, it is contended that a small piece of land belong to petitioners cannot be excepted and therefore this Court may decline to interfere in the acquisition proceedings and dismiss the writ petition. 12. Acquisition of land has to be consistent with the procedure prescribed in law inasmuch as though right to property is no more a fundamental right but it is a constitutional right enshrined under Article 300-A of the Constitution. It provides that no person shall be deprived of his property except in accordance with the procedure prescribed in law, therefore, without following procedure prescribed in law no person can be deprived of his property and any attempt otherwise would be illegal and unconstitutional. 13. In the present case, it was open to State to acquire land by dispensing with inquiry under Section 5-A of Act, 1894 but when, how and in what manner State would be justified in dispensing with inquiry under Section 5-A of Act, 1894 is no more res integra having been settled in a catena of decision in last two decades. 14. Section 5-A was inserted in Act, 1894 as long back as in 1923, by Act No. 38 of 1923. There are minor amendments made subsequently but substance of provision has remained the same. 15. Normal procedure of acquisition is that a proposal of acquisition is published in notification under Section 4(1) of Act, 1894. Land owners whose land is proposed to be acquired, are given an opportunity to make their objections. There are minor amendments made subsequently but substance of provision has remained the same. 15. Normal procedure of acquisition is that a proposal of acquisition is published in notification under Section 4(1) of Act, 1894. Land owners whose land is proposed to be acquired, are given an opportunity to make their objections. Collector is under an obligation to consider objections and also offer an opportunity of hearing to objectors and thereafter submit report to Government containing his recommendations on the objections, for decision of Government. After considering the report and other material, Government makes declaration that land is proposed to be acquired for public purpose and this is done by publication of notification under Section 6. Therefore, there is possibility of some difference in details of land stated in the notification issued under Section 4 and finally declared land, as acquired for public purpose, detailed in notification under Section 6. 16. Collector is then authorised to take order for acquisition and under Section 8 is supposed to mark, measure and plan the acquired land. A notice thereafter is issued under Section 9 to Land Owners by Collector notifying his intention of taking possession of land and that the claim for compensation be submitted to him. Under Section 11, Collector makes enquiry for determining amount of compensation payable to land owners, whose land has been acquired, and make award. After payment of compensation, Collector takes possession of land. 17. There is an exception to normal procedure of taking possession which is contained in Section 17 of Act 1894. It says that in case of urgency, even though no award has been made, Government can direct Collector to take possession of any land, needed for public purpose, and on such possession being taken by Collector, land shall vest absolutely with the Government free from all encumbrances. Section 17(4) provides, where such urgency for the purpose of possession is to be acted upon, Government, shall declare that provision of Section 5-A shall not apply. 18. However, right to file objection under Section 5-A against proposal of acquisition of land published under Section 4 is a substantial right, consistent with principle of natural justice, since forcible acquisition of land, without consent of land owners, is a serious matter. This is the view taken consistently, by Courts. 19. 18. However, right to file objection under Section 5-A against proposal of acquisition of land published under Section 4 is a substantial right, consistent with principle of natural justice, since forcible acquisition of land, without consent of land owners, is a serious matter. This is the view taken consistently, by Courts. 19. The circumstances, when Government would be justified to dispense with enquiry under Section 5-A while invoking urgency clause under Section 17, for the purpose of taking possession, have been considered in a catena of decisions in last several decades and it would be useful to refer some relevant authorities in this regard. 20. In Nandeshwar Prasad v. U.P. Government, AIR 1964 SC 1217 , Court said : “the right to file objection under Section 5-A is a substantial right when a person’s property is being threatened with acquisition and we cannot accept that that right can be taken away as if by a side wind”. 21. In Munshi Singh and others v. Union of India, (1973) 2 SCC 337 , which is a decision of three judges bench, Court stressed upon and emphasized upon an inbuilt legislative recognition of principal of natural justice in Section 5-A and said : “Sub-section (2) of Section 5-A makes it obligatory on the Collector to give an objector an opportunity of being heard. After hearing all objections and making further inquiry he is to make a report to the appropriate Government containing his recommendation on the objections. ........ The legislature has, therefore, made complete provisions for the persons interested to file objections against the proposed acquisition and for the disposal of their objections. It is only in cases of urgency that special powers have been conferred on the appropriate Government to dispense with the provisions of Section 5-A”. (emphasis added) 22. In State of Punjab v. Gurnail Singh and others, 1980 (1) SCC 471, it was held that it is fundamental that compulsory taking of a man’s property is a serious matter and smaller the man, more serious the matter. Hearing him before depriving him is both reasonable and preemptive of arbitrariness. Denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing, land acquisition authorities should not, having regard to Articles 14, burke an enquiry under Section 17 of Act, 1894. Denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing, land acquisition authorities should not, having regard to Articles 14, burke an enquiry under Section 17 of Act, 1894. A slumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes travesty of emergency power. 23. In Shyam Nandan Prasad and others v. State of Bihar and others, (1993) 4 SCC 255 , reiterating that Section 5-A is mandatory, Court said : “the proceeding before the Collector is a blend of public and individual enquiry”. 24. In Union of India and others v. Mukesh Hans, (2004) 8 SCC 14 , Court held that Section 17(4) is an exception to normal mode of acquisition. Mere existence of urgency or unforeseen emergency by itself is not sufficient to direct for dispensation of Section 5-A. Court reiterated that there must be real existing emergency for which an opinion must be formed by the Government, objectively. Court said as under : “It requires an opinion to be formed by concerned Government that alongwith existence of such urgency or unforeseen emergency there is also a need for dispensing with Section 5-A enquiry, which indicates that the legislature intended that the appropriate Government to apply its mind before dispensing with Section 5-A enquiry. It also indicates the mere existence of an urgency under Section 17 (1) or unforeseen emergency under Section 17 (2) would not by itself be sufficient for dispensing with Section 5-A enquiry. If that was not the intention of the legislature then the latter part of sub-section (4) of Section 17 would not have been necessary and the legislature in Section 17 (1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically Section 5-A enquiry will be dispensed with, but then that is not language of the Section which, in our opinion, requires the appropriate Government to further consider the need for dispensing with Section 5-A enquiry in spite of the existence of unforeseen emergency. This understanding of ours as to the requirement of an application of mind by the appropriate Government while dispensing with Section 5-A inquiry does not mean that in every case when there is an urgency contemplated under Section 17(1) and unforeseen emergency contemplated under Section 17(2) exists that by itself would not contain the need for dispensing with Section 5-A enquiry. ....... There is need for application of mind by appropriate Government that such an urgency for dispensing of Section 5-A enquiry is inherent ........... .” 25. In Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai and others, (2005) 7 SCC 627 , it was held that the provisions of Section 5-A of Act, 1894 must be read consistent with Article 300-A of the Constitution and it is akin to fundamental right of procedure before depriving a persons of his land, and must be strictly complied with. 26. In Essco Fabs Pvt. Ltd. and another v. State Of Haryana and another, (2009) 2 SCC 377 , it was held that enquiry should not be dispensed with lightly. 27. In Anand Singh and another v. State of U.P. and others, (2010) 11 SCC 242 , Court considered as to when State would be justified in invoking power under Section 17(4) for acquisition of land and dispensing with enquiry under Section 5-A so as to take possession immediately. It is said that power under Section 17 is not to be exercised in a routine manner. It would be justified only when circumstances warrant immediate possession. It should not be lightly invoked. It is an exceptional power enabling land acquiring body to dispense with enquiry under Section 5-A. Government must apply its mind before dispensing with enquiry under Section 5-A whether urgency is of such a nature that justifies elimination of summary enquiry under Section 5-A. The mere mention of words in acquisition notification that Government is satisfied about urgency and dispensing with enquiry under Section 5-A may raise a presumption in favour of Government that pre-requisite conditions for exercise of such power are satisfied but when challenged, Government has to produce relevant material before Court to show existence of such circumstances, which justify dispensation of inquiry and avail an exceptional power under Section 17. Court said : “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 enquiry under Section 5-A has been formed by the Government after due application of mind on the material placed before it”. (emphasis added) 28. With regard to judicial review of exercise of power, Court in Anand Singh and another (Supra) further said in paras 45, 46, 47 and 48 as under : “45. 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.” “46. 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 land owners/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.” 47. The special provision has been made in Section 17 to eliminate enquiry under Section 5-A in deserving and cases of real urgency. The Government has to apply its mind on the aspect that urgency is of such nature that necessitates dispensation of enquiry under Section 5-A. We have already noticed few decisions of this Court. There is conflict of view in the two decisions of this Court viz.; Narayan Govind Gavate and Pista Devi. In Om Prakash this Court held that decision in Pista Devi must be confined to the fact situation in those days when it was rendered and the two-Judge Bench could not have laid down a proposition contrary to the decision in Narayan Govind Gavate. In Om Prakash this Court held that decision in Pista Devi must be confined to the fact situation in those days when it was rendered and the two-Judge Bench could not have laid down a proposition contrary to the decision in Narayan Govind Gavate. We agree.” “48. As regards the issue whether pre-notification and post-notification delay would render the invocation of urgency power void, again the case law is not consistent. The view of this Court has differed on this aspect due to different fact-situation prevailing in those cases. In our opinion such delay will have material bearing on the question of invocation of urgency power, particularly in a situation where no material has been placed by the appropriate Government before the Court justifying that urgency was of such nature that necessitated elimination of enquiry under Section 5-A.” (emphasis added) 29. In Radhe Shyam (Dead) through Lrs. and others v. State of U.P. and others, 2011(5) SCC 553 , it was reiterated that property of a citizen cannot be acquired by State without complying with the mandate of Sections 4, 5-A and 6 of Act, 1894. A public purpose however, loudable would not entitle Government to invoke urgency provisions, since the same have the effect of depriving owner of his right to property and that too without being heard. Only in a case of real urgency, Government would be justified in invoking urgency provisions. Section 17 must have been invoked only when purpose of acquisition cannot brook the delay of even few weeks or months. The authority must be fully satisfied that time of few weeks or months likely to be taken in conducting enquiry under Section 5-A shall, in all probability, frustrate the public purpose for which land is proposed to be acquired. Satisfaction of Government on issue of urgency is subjective but is a condition precedent to the exercise of power under Section 17(1) and can be challenged on the ground that authority did not apply its mind to relevant factors, and on record, there is no material justifying existence of alleged urgency. It also held that exercise of power under Section 17(1) necessarily does not result in exclusion of Section 5-A, inasmuch as, the person concerned can file objection and is entitled to be heard in support of his objection. It also held that exercise of power under Section 17(1) necessarily does not result in exclusion of Section 5-A, inasmuch as, the person concerned 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 shows that it merely enables Government to direct that Section 5-A would not apply to the cases covered under Sections (1) or (2) of Section 17. Therefore, mere fact that certain purposes may be treated as public purpose for purpose of acquisition but that by itself would not mean that there exists urgency to dispense with inquiry unless the circumstances actually and really are in existence to show that delay in taking possession would be adverse to public interest. It also held that Court can take judicial notice of the fact that for planning, execution and implementation of scheme relating to development of residential, commercial and industrial or institutional areas, Government takes few years, therefore, in such cases private property should not be acquired by invoking urgency clause as denial of Rule of audi alteram partem embodied in Section 5-A is not at all warranted in such cases. 30. In Darshan Lal Nagpal (Dead) By Lrs. v. Government of NCT of Delhi and others, (2012) 2 SCC 327 , after having retrospection of some of authorities on the subject, Court in para 28 of the judgment, stated as under : “What needs to be emphasized is that although in exercise of the power of eminent domain, the State can acquire the private property for public purpose, it must be remembered that compulsory acquisition of the property belonging to a private individual is a serious matter and has grave repercussions on his Constitutional right of not being deprived of his property without the sanction of law - Article 300-A and the legal rights. Therefore, the State must exercise this power with great care and circumspection. At times, compulsory acquisition of land is likely to make the owner landless. The degree of care required to be taken by the State is greater when the power of compulsory acquisition of private land is exercised by invoking the provisions like the one contained in Section 17 of the Act because that results in depriving the owner of his property without being afforded an opportunity of hearing.” (emphasis added) 31. The degree of care required to be taken by the State is greater when the power of compulsory acquisition of private land is exercised by invoking the provisions like the one contained in Section 17 of the Act because that results in depriving the owner of his property without being afforded an opportunity of hearing.” (emphasis added) 31. In Union of India and others v. Shiv Raj and others, 2014 (6) SCC 564 , Court in para 15 said that Section 5-A confers a valuable right on the owner of land and it is not an empty formality. It is a substantive right, which can be taken away only for good and valid reasons and within the limitations prescribed under Section 17(4) of Act, 1894. 32. When we examined the material available with State Government to justify dispensation of inquiry under Section 5-A, we found that in counter-affidavit and supplementary counter-affidavit virtually nothing has been placed to demonstrate that any such urgency was existing, justifying dispensation of inquiry. Respondents have also placed before us original record of acquisition and we have perused the same. Unfortunately, the alleged original record also contains only copies of application dated 6.6.1990, Collector’s letter dated 16.6.1992, award dated 8.10.1997, copies of notifications dated 8th July 1993, 28th January 1993 and 10th July 1992 and the documents showing taking of possession of acquired land. From the order-sheet of V.D.A. record, we find that a proposal for constructing residential colony at Village Lalpur was conceived sometime in 1988. Since land at Village Lalpur was agricultural land hence, matter was examined to seek exemption of acquisition of such land for residential purposes. The proposal was ultimately approved by Chief Minister on 30.3.1990 but in the entire order-sheet there is nothing to justify as to why inquiry under Section 5-A ought not to have been held or that the acquisition of land was urgent and immediate. Moreover proposal was made by V.D.A. on 6th June 1990 whereupon Collector took almost two years in making recommendation to Government vide letter dated 16.6.1992. Thereafter, notification under Section 4 was published on 10th July 1992. It was published in newspapers after about four months i.e. on 9.11.1992. Moreover proposal was made by V.D.A. on 6th June 1990 whereupon Collector took almost two years in making recommendation to Government vide letter dated 16.6.1992. Thereafter, notification under Section 4 was published on 10th July 1992. It was published in newspapers after about four months i.e. on 9.11.1992. It appears that on a mere mention in the application dated 6.6.1990 that possession is urgently needed, without any further inquiry and application of mind on the relevant facts, in a mechanical manner, respondent State Government acted upon to invoke powers under Section 17(1) and (4) and dispensed inquiry under Section 5-A. 33. Further declaration under Section 6 was made after another one year i.e. on 8th July 1993. As already said, possession has been taken admittedly on 18.8.1994 and 28.7.1995. This all shows that as a matter of fact there was no such urgency where respondents could not have waited for a few weeks or months so as to hold an inquiry and give opportunity of hearing to all tenure holders or land owners whose land was proposed to be acquired. Exercise of power under Section 17 (1) and (4) by dispensing with inquiry under Section 5-A of Act, 1894 therefore, is clearly illegal, founded on no material whatsoever, arbitrary and vitiates the proceedings of acquisition. 34. In view of above discussions, writ petition is partly allowed to the extent that impugned notifications, to the extent of land belong to petitioners, in so far as it has dispensed with inquiry under Section 5-A of Act, 1894, are hereby set aside. However, respondents shall be at liberty to take further action from the stage of giving opportunity to land owners by submitting their objections under Section 5-A and after considering the same respondents may proceed in accordance with law. 35. Petitioners shall be entitled to costs against respondents-1 to 3, which we quantify to Rs. 25,000/-. ——————