JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri Shwetashwa Agarwal, learned Counsel for petitioner, Sri Ravi Kant, learned Senior Advocate, assisted by Sri Shivam Yadav, Advocate, for New Okhla Industrial Development Authority (hereinafter referred to as “NOIDA”); and learned Standing Counsel for State-respondents. 2. Petitioner, Upbhokta Sanrakshan Evam Awas Vikas Samiti, Hajipur, District Gautambudh Nagar (hereinafter referred to as “Society”) is a Society registered under the provisions of Societies Registration Act, 1860 (hereinafter referred to as “Act, 1860”). It purchased 49 bigha land bearing Khatas No. 103, 275, 276, 280, 281, 446, 447, 448, 449, 450, 451, 452 and 463 vide various sale-deeds of the same date, i.e., 22.10.1981, from different farmers. Society requested NOIDA, a body constituted under U.P. Industrial Area Development Act, 1976 (hereinafter referred to as “Act, 1976”), to grant no-objection so that land purchased by petitioner may be allotted to its members. NOIDA did not act on the said request and on the contrary, on a request made by NOIDA, State Government issued Notification dated 28.11.2001 under Section 4(1) of Land Acquisition Act, 1894 (hereinafter referred to as “Act, 1894”) proposing to acquire 205-625 acres of land in Village Hajipur, Tehsil and Pergana Dadari, District Gautambudh Nagar, which included petitioners’ land also. State Government also exercised its power under Section 17 (1) and (4) of Act, 1894 stating that there is an urgency, therefore, enquiry under Section 5A shall stand dispensed with. Thereafter, declaration under Section 6 was issued vide Notification dated 26.2.2002. Both these Notifications have been challenged on the ground that dispensation of enquiry under Section 5A is illegal, there existed no urgency and there is no material to justify the same. It is further said that land was purchased by petitioner for the purpose of allotting the same to its members for constructing residential buildings, and, that being so, there was no justification for respondents to acquire the said land for the same purpose. 3. A Bench constituting of Hon’ble P.C. Verma and Hon’ble Rajesh Chandra, J.J. disposed of this Writ Petition of vide judgment dated 10.12.2009 referring to decision in Ghaziabad Sheromani Sahkari Avas Samiti Ltd. and another etc. v. State of U.P. and others, 1990 (1) SCC 583 and directing respondents to allot 90 square meters of land to each member of petitioner-Society in any Housing Scheme, convenient to them, after verifying correct number of genuine members in accordance with bye-laws and regulations. v. State of U.P. and others, 1990 (1) SCC 583 and directing respondents to allot 90 square meters of land to each member of petitioner-Society in any Housing Scheme, convenient to them, after verifying correct number of genuine members in accordance with bye-laws and regulations. This order was passed on a statement made by learned counsel for petitioner that he is waiving all the reliefs sought in the writ petition except that members of Society (210 in all) be allotted land in any other scheme of NOIDA. This judgment was taken in appeal by NOIDA, i.e. Civil Appeals No. 10119-10120 of 2011. Supreme Court vide judgment dated 25.11.2011 has set aside the aforesaid judgment observing as under: “We have heard learned counsel for the parties and examined the record. In our view, the direction given by the High Court for allotment of 90 sq. mets. plots to all the members of respondent No. 1 is legally unsustainable. Admittedly, the State Government had acquired the land for Planned Industrial Development. The development plan prepared by NOIDA does not envisage allotment of plots for residential purposes. Therefore, the High Court was not at all justified in ordaining allotment of plots to the members of respondent No. 1. Learned counsel for respondent No. 1 submits that if this Court is inclined to set aside the impugned orders, liberty may be given to his client to press its challenge to the acquisition proceedings on merits. Learned counsel for the appellant says that he does not have any objection if leave is granted to respondent No. 1 to resurrect its challenge to the acquisition proceedings. In the result, the appeals are allowed. The impugned orders are set aside and the matter is remitted to the High Court for fresh disposal of the writ petition on merits. Since majority of the members of respondent No. 1 are quite old, we request the High Court to make an endeavour to dispose of the writ petition as early as possible but latest within six months from the date of receipt of copy of this order. As soon as the copy of this order is received, the Registrar (Judicial), the High Court of Allahabad shall place the matter before Hon’ble the Chief Justice for appropriate direction.” (emphasis added) 4. As soon as the copy of this order is received, the Registrar (Judicial), the High Court of Allahabad shall place the matter before Hon’ble the Chief Justice for appropriate direction.” (emphasis added) 4. After change of roster on 28.3.2016, in view of Hon’ble Chief Justice’s administrative order dated 16.12.2013, this matter has come up before us on 4.4.2016. We have heard learned counsels for parties and we proceed to decide this matter finally. 5. The principal argument assailing acquisition Notifications is in regard to dispensation of enquiry under Section 5A by taking recourse to Section 17(1) and (4) of Act, 1894 and the submission is that neither there existed any actual urgency nor there is any material to justify exercise of power under Section 17(4). State Government has exercised its power of dispensation of enquiry in a mechanical manner without applying its mind. Enquiry under Section 5A provides a substantial right of hearing to land owners which is consistent with the principles of natural justice and such a right can be deprived only when there is actual urgency and not in a slipshod manner. The land in question was purchased by petitioner for residential accommodations to be constructed by members of Society and for the same purpose, NOIDA has proposed to acquire the land. Hence, there is no justification to deprive petitioner from development of land for the benefit of its members. NOIDA itself is not undertaking any development activity, and, in fact, allotting land to Builders and Colonizers. In effect the acquisition in question is for the benefit of private individuals, hence, even otherwise, it is bad being a colourable exercise of power by respondents. 6. Respondents have contested the matter on various grounds. In the counter-affidavit filed on behalf of NOIDA, it is said that petitioner has clubbed, illegally, several plots, inasmuch some plots were already acquired by NOIDA as long back as in 1992 and 1994 and numbers of such plots have also been mentioned in the writ petition. The impugned acquisition Notifications have no concern to the said plot numbers, namely, Plots No. 103, 275, 276, 280 and 281. The acquisition Notifications impugned in the writ petition, i.e., 28.11.2001 and 26.2.2002 involve petitioners’ Plots No. 446, 452 and 463. Possession of all these plots has already been taken by respondents vide transfer memo dated 23.3.2002. 7. The impugned acquisition Notifications have no concern to the said plot numbers, namely, Plots No. 103, 275, 276, 280 and 281. The acquisition Notifications impugned in the writ petition, i.e., 28.11.2001 and 26.2.2002 involve petitioners’ Plots No. 446, 452 and 463. Possession of all these plots has already been taken by respondents vide transfer memo dated 23.3.2002. 7. In the counter-affidavits and supplementary counter-affidavits filed by respondents, on the question of urgency they have not said anything, whatsoever, except that NOIDA is an authority constituted under Act, 1976 and entitled to take ‘Planned Industrial Development’ and to acquire required area of land for that purpose under the provisions of Act, 1894. Issuance of acquisition Notifications under Section 4 and 6 on 28.11.2001 and 26.2.2002 are admitted but why dispensation of enquiry under Section 5A was found necessary and what was the urgency, in this regard nothing has been said, except that since acquisition was necessary in public interest for planned industrial development, therefore enquiry has been dispensed with. 8. The reply is extremely vague, and, in fact, does not constitute any reply, whatsoever. It is in this backdrop, we have to examine challenge to impugned Notifications. 9. Before proceeding in this regard we may make it clear that impugned Notifications nowhere mention or refer to Plots No. 103, 275, 276, 280 and 281. On the contrary, from Annexures CA-1, CA-2 and CA-3 to the counter-affidavit filed by NOIDA, we find that these plots were acquired by a Notification issued under Section 4(1), dated 6.1.1992, published in U.P. Gazette dated 15.2.1992 and declaration under Section 6 was published vide Notification dated 22.9.1992 (published in U.P. Gazette dated 28.11.1992). Possession of said land was taken by State and transferred to NOIDA on 18.3.1994. The Notifications dated 6.1.1992 and 22.9.1992 are not under challenge. Therefore, this writ petition is bound to fail so far as it challenges acquisition proceedings in respect to Plots No. 103, 275, 276, 280 and 281. 10. Now we are confining our scrutiny to the correctness of impugned Notifications dated 28.11.2001 and 26.2.2002 to the extent of Plots No. 446, 452 and 463. The question is, “whether dispensation of enquiry under Section 5A by exercising power under Section 17(1) and (4) is justified or not”. 11. Section 5-A was inserted in Act, 1894 as long back as in 1923, by Act No. 38 of 1923. The question is, “whether dispensation of enquiry under Section 5A by exercising power under Section 17(1) and (4) is justified or not”. 11. 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. 12. Normal procedure of acquisition is that a proposal of acquisition is published in notification under Section 4 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 a report to Government containing his recommendations on the objections, for decision of Government. After considering the report and other material, Government make 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. 13. 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. 14. 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. 15. 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. 15. 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, has been considered in a catena of decisions in last several decades and it would be useful to refer some relevant authorities in this regard. 16. Right to file objection 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. 17. 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”. 18. 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 principle 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”. 19. 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 the 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. 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 (and 19), 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. 20. 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”. 21. 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 “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 ........... .” 22. 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. 23. 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. 24. 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 further 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”. 25. 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. We agree.” “48. 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.” 26. 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. 27. 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.” 28. 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.” 28. 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. 29. Now examining the factum of existence of urgency in the case in hand, we find that respondents have not cared to place anything before us to justify that there existed real urgency for acquisition and possession of acquired land, justifying dispensation of enquiry under Section 5A. In fact, except repeating that acquisition has been made in public interest and for ‘Planned Industrial Development’, no factual foundation has been placed on record either by means of affidavits or by placing original relevant record for our perusal. Respondents, in fact, have not made any attempt to justify dispensation of enquiry by showing that there actually existed such circumstances and real urgency which necessitated exercise of power under Section 17 to dispense with enquiry under Section 5A. In view thereof, we have no manner of doubt that dispensation of enquiry under Section 5A in the present case is nothing but arbitrary, illegal and a colourable exercise of power. Impugned Notifications dated 28.11.2001 and 26.2.2002 so far as they dispense with enquiry under Section 5A of Act, 1894, cannot be sustained. 30. The writ petition is partly allowed. In respect of the claim of petitioners Plots No. 103, 275, 276, 280 and 281, writ petition fails and is dismissed. However, impugned Notifications, to the extent the same relate to Plots No. 446, 452 and 463, in so far as Section 17 has been invoked and enquiry under Section 5-A has been dispensed with, are hereby quashed. In respect of the claim of petitioners Plots No. 103, 275, 276, 280 and 281, writ petition fails and is dismissed. However, impugned Notifications, to the extent the same relate to Plots No. 446, 452 and 463, in so far as Section 17 has been invoked and enquiry under Section 5-A has been dispensed with, are hereby quashed. If respondents still require land in dispute, they may proceed from stage of making enquiry under Section 5-A of Act, 1894 after giving public notice to landowners, inviting objections and thereafter take appropriate action as permissible in law. ——————