Madras High Court
S.Ekambaram vs The Secretary on 9 April, 2014
Author: M.Sathyanarayanan
Bench: N.Paul Vasanthakumar, M.Sathyanarayanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 09.04.2014
CORAM
THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR
AND
THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN
W.A.No.1548/2012 and W.P.Nos.68/2011, 31411/2012,
3383/2013, 8265/2013 and 9437/2013
and connected M.Ps.
W.A.No.1548/2012
1.S.Ekambaram
2.C.S.Rangavittal
3.E.Senguttuvan
4.B.Vishvanathan
5.G.Srinivasan
6.E.V.Varghese
7.P.Gnasigamoni
8.Gnanavadivu
9.K.Ethiraja Reddiar
10.Krishnaraju Reddiar
11.K.Lalitha .. Appellants
Vs.
1.The Secretary,
Housing & Urban Development (UD3(2)) Department,
Government of Tamil Nadu,
Fort St.George,
Chennai-600 009.
2.The Member Secretary,
Chennai Metropolitan Development Authority (CMDA),
Thalamuthu Natarajan Buildings,
No.1, Gandhi Irwin Road,
Egmore, Chennai-600 008.
3.The Metropolitan Transport
Project (Railways),
Chennai Periyar E.V.R.High Road,
Chennai-600 008.
4.The District Collector,
Collectorate,
Kancheepuram.
5.The Special Tahsildar (Land Acquisition)
Mass Rapid Transport System,
Phase-II Extension,
Thirumayilai Railway Station,
Mylapore, Chennai-600 004. .. Respondents
W.P.No.68/2011
Residents Welfare Association,
(Parvathipuram) (Sl.No.306/2010)
Rep by its President, S.Ekambaram .. Petitioner
Vs.
1.The Secretary,
Housing & Urban Development (UD3(2)) Department,
Government of Tamil Nadu,
Fort St.George,
Chennai-600 009.
2.The Member Secretary,
Chennai Metropolitan Development Authority (CMDA),
Thalamuthu Natarajan Buildings,
No.1, Gandhi Irwin Road,
Egmore, Chennai-600 008.
3.The Metropolitan Transport
Project (Railways),
Chennai Periyar E.V.R.High Road,
Chennai-600 008.
4.Chennai Metro Rail Ltd.,
11/6, Seethammal Road,
Alwarpet,
Chennai-600 018. .. Respondents
W.P.No.31411/2012
K.Ramasundaram .. Petitioner
Vs.
1.The State of Tamil Nadu,
represented by its Principal Secretary,
Housing & Urban Development (UD3(2)) Department,
Fort St.George,
Chennai-600 009.
2.The Member Secretary,
Chennai Metropolitan Development Authority (CMDA),
Thalamuthu Natarajan Buildings,
No.1, Gandhi Irwin Road,
Egmore, Chennai-600 008.
3.The Metropolitan Transport
Project (Railways),
Chennai Periyar E.V.R.High Road,
Chennai-600 008.
4.M/s.RITES Limited,
represented by the
Chairman and Managing Director,
SCOPE Minar,
Lakshmi Nagar,
Delhi-110 092.
5.The District Collector,
Collectorate,
Kancheepuram.
6.The Special Tahsildar (Land Acquisition)
Mass Rapid Transport System,
Phase II Examination,
Thirumayilai Railway Station,
Mylapore, Chennai-600 004.
7.The General Manager,
Southern Railway,
Park Town,
Chennai-600 003.
8.The Central Vigilance Commission,
Satarkta Bhavan,
G.P.O. Complex, Block-A, NIA,
New Delhi-110 023.
9.The Chief Engineer (H),
Highways Projects,
Chennai-600 015.
10.M.Sakthi Babu,
11.Janarthanam .. Respondents
W.P.No.3383/2013
Christian Assembly
Rep by its Secretary,
Johnathan David .. Petitioner
Vs.
1.The Secretary,
Housing & Urban Development (UD3(2)) Department,
Government of Tamil Nadu,
Fort St.George,
Chennai-600 009.
2.The Member Secretary,
Chennai Metropolitan Development Authority (CMDA),
Thalamuthu Natarajan Buildings,
No.1, Gandhi Irwin Road,
Egmore, Chennai-600 008.
3.The Metropolitan Transport
Project (Railways),
Chennai Periyar E.V.R.High Road,
Chennai-600 008.
4.The District Collector,
Collectorate,
Kancheepuram.
5.The Special Tahsildar (Land Acquisition)
Mass Rapid Transport System,
Phase II Examination,
Thirumayilai Railway Station,
Mylapore, Chennai-600 004. .. Respondents
W.P.No.8265/2013
K.Velusamy .. Petitioner
Vs.
1.The State of Tamil Nadu,
represented by its Principal Secretary,
Housing & Urban Development (UD3(2)) Department,
Fort St.George,
Chennai-600 009.
2.The Member Secretary,
Chennai Metropolitan Development Authority (CMDA),
Thalamuthu Natarajan Buildings,
No.1, Gandhi Irwin Road,
Egmore, Chennai-600 008.
3.The Metropolitan Transport
Project (Railways),
Chennai Periyar E.V.R.High Road,
Chennai-600 008.
4.M/s.RITES Limited,
represented by the
Chairman and Managing Director,
SCOPE Minar,
Lakshmi Nagar,
Delhi-110 092.
5.The District Collector,
Collectorate,
Kancheepuram.
6.The Special Tahsildar (Land Acquisition)
Mass Rapid Transport System,
Phase II Examination,
Thirumayilai Railway Station,
Mylapore, Chennai-600 004.
7.The General Manager,
Southern Railway,
Park Town,
Chennai-600 003.
8.The Central Vigilance Commission,
Satarkta Bhavan,
G.P.O. Complex, Block-A, INA,
New Delhi-110 023.
9.The Chief Engineer (H),
Highways Projects,
Chennai-600 015.
10.M.Sakthi Babu,
Junior Engineer, I/W MTP (R)
MRTS, Chennai.
11.Janarthanam,
Deputy Chief Engineer (MTP) (R)
MRTS, Chennai. .. Respondents
W.P.No.9437/2013
A.Leena Immaculate .. Petitioner
Vs.
1.The State of Tamil Nadu,
represented by its Principal Secretary,
Housing & Urban Development (UD3(2)) Department,
Fort St.George,
Chennai-600 009.
2.The Member Secretary,
Chennai Metropolitan Development Authority (CMDA),
Thalamuthu Natarajan Buildings,
No.1, Gandhi Irwin Road,
Egmore, Chennai-600 008.
3.The Metropolitan Transport
Project (Railways),
Chennai Periyar E.V.R.High Road,
Chennai-600 008.
4.M/s.RITES Limited,
represented by the
Chairman and Managing Director,
SCOPE Minar,
Lakshmi Nagar,
Delhi-110 092.
5.The District Collector,
Collectorate,
Kancheepuram.
6.The Special Tahsildar (Land Acquisition)
Mass Rapid Transport System,
Phase II Examination,
Thirumayilai Railway Station,
Mylapore, Chennai-600 004.
7.The General Manager,
Southern Railway,
Park Town,
Chennai-600 003.
8.The Central Vigilance Commission,
Satarkta Bhavan,
G.P.O. Complex, Block-A, INA,
New Delhi-110 023.
9.The Chief Engineer (H),
Highways Projects,
Chennai-600 015.
10.M.Sakthi Babu,
Junior Engineer, I/W MTP (R)
MRTS, Chennai.
11.Janarthanam,
Deputy Chief Engineer (MTP) (R)
MRTS, Chennai. .. Respondents
Prayer in W.A.No.1548/2012:- Writ Appeal filed under Clause 15 of the Letters Patent against the common order passed in W.P.No.4794/2011 dated 03.07.2012.
Prayer in W.P.No.68/2011:- Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari calling for the records of the 1st respondent in connection with the impugned order passed by the 1st respondent in G.O.(Ms).No.274, Housing and Urban Development [UD3(2)] dated 29.11.2010, quash the same.
Prayer in W.P.No.31411/2012:- Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to call for the records leading to G.O.Ms.274, Housing and Urban Development (UD3(2)) Department dated 29.11.2010 issued by the 1st respondent and the consequential notification under Section 4(1) of Land Acquisition Act dated 11.02.2011 in G.O.Ms.No.34 issued by the 5th respondent published in Dinakaran Daily newspaper and quash the same and consequently direct the respondents to implement the G.O.Ms.No.343, Housing and Urban Development (UD3(2)) Department dated 20.12.2006.
Prayer in W.P.No.3383/2013:- Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari calling for the records of the respondents relating to the impugned G.O.Ms.No.34 dated 11.02.2011 issued by the 1st respondent herein viz., Housing & Urban Development Department (UD3(2)), quash the same.
Prayer in W.P.No.8265/2013:- Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to call for the records leading to G.O.Ms.274, Housing and Urban Development (UD3(2)) Department dated 29.11.2010 issued by the 1st respondent and the consequential notification under Section 4(1) of Land Acquisition Act dated 11.02.2011 in G.O.Ms.No.34 issued by the 5th respondent published in Dinakaran Daily newspaper and quash the same and consequently direct the respondents to implement the G.O.Ms.No.343, Housing and Urban Development (UD3(2)) Department dated 20.12.2006.
Prayer in W.P.No.9437/2013:- Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to call for the records leading to G.O.Ms.274, Housing and Urban Development (UD3(2)) Department dated 29.11.2010 issued by the 1st respondent and the consequential notification under Section 4(1) of Land Acquisition Act dated 11.02.2011 in G.O.Ms.No.34 issued by the 5th respondent published in Dinakaran Daily newspaper and quash the same and consequently direct the respondents to implement the G.O.Ms.No.343, Housing and Urban Development (UD3(2)) Department dated 20.12.2006.
For Petitioners/
Appellants : Mr.T.R.Rajagopalan, Senior Counsel
for appellant in W.A.No.1548/2012
for petitioner in W.P.No.68/2011
Mr.T.V.Ramanujam, Senior Counsel
for M/s.Jagadish
for petitioners in W.P.No.31411/2012
and W.P.No.8265/2013
Mr.D.Ravichander
for petitioner in W.P.No.3383/2013
Mr.R.Sundaramurthy
for petitioner in W.P.No.9437/2013
For Respondents : Mr.A.L.Somayaji, Advocate General
assisted by Mr.N.Sampath
for CMDA in all cases
Mrs.A.Srijayanthi, Special Govt. Pleader
for Aditiya Reddy, Government Advocate
for State Government in all cases
Mr.R.Thiagarajan, Senior Counsel
assisted by Mr.V.G.Suresh Kumar
and P.T.Ramkumar for MRTS
C O M M O N J U D G M E N T
The writ appeal as well as the writ petitions pertain to Mass Rapid Transit System (in short 'MRTS') Phase-II extension from Velachery to St.Thomas Mount and primary challenge is made to the notification under Section 17(2) of the Land Acquisition Act, 1894 (Central Act No.1 of 1894) and dispensing with enquiry under Section 5-A of the said Act. Since the issue involved in the writ appeal as well as in the writ petitions are one and the same, all these cases are disposed of by this common judgment.
2.W.A.No.1548/2012 is preferred against the common order dated 03.07.2012 made in W.P.No.4794/2011 filed by Thiru.S.Ekambaram and 10 others and challenge is made to the order in G.O.Ms.No.34, Housing and Urban Development [UD3(2)] Department dated 11.02.2011 issued under Section 4(1) of the Land Acquisition Act, 1894. The said writ petition came to be dismissed on merits and hence, challenge is made to the said order by filing this writ appeal.
3. W.P.No.68/2011 is filed by Residents' Welfare Association (Parvathipuram), Jeevan Nagar, Chennai-600 088, praying for quashment of G.O.(Ms).No.274, Housing and Urban Development [UD3(2)] Department dated 29.11.2010.
4. W.P.No.31411/2012 is filed by Thiru.K.Ramasundaram, challenging G.O.Ms.274, Housing and Urban Development (UD3(2)) Department dated 29.11.2010 and the consequential notification under Section 4(1) of Land Acquisition Act dated 11.02.2011 in G.O.Ms.No.34 with a prayer to quash the same and consequential direction for implementation of G.O.Ms.No.343, Housing and Urban Development (UD3(2)) Department dated 20.12.2006.
5. W.P.No.3383/2013 is filed by Christian Assembly, represented by its Secretary, Adambakkam, Chennai-88, challenging the vires of G.O.Ms.No.34, Housing and Urban Development [UD3(2)] Department dated 11.02.2011.
6. W.P.No.8265/2013 is filed by Thiru.K.Velusamy, praying for the very same relief claimed by the petitioner in W.P.No.31411/2012.
7. W.P.No.9437/2013 is filed by Tmt.A.Leena Immaculate, claiming the very same relief made by the petitioner in W.P.Nos.31411/2012 and W.P.No.8265/2013.
8. Facts in brief necessary for the disposal of the writ appeal and writ petitions are as follows:
8.1. The first respondent in the writ appeal as well as in the writ petitions, namely, Housing and Urban Development [UD3(2)] Department has issued an order in G.O.Ms.No.343 dated 20.12.2006 for the development of the Composite Corridor for Inner Ring Road (IRR) and the remaining segments of MRTS from Velachery to Ennore and developing the MRTS on single pillars along the central median of the composite corridor. The Government has accorded administrative sanction in the above said Government Order for the following proposals:
"(i) Development of the composite corridor for Inner Ring Road and the remaining segments of Mass Rapid Transit System from Velachery to Ennore and developing the Mass Rapid Transit system on single pillars along the central median of the composite corridor.
(ii) Release of the freezing of development on map marked lands for the stretch of Mass Rapid Transit System from Velachery to Ennor pending formal incorporation in the Master Plan; and
(iii) Construction of Grade separators/fly over shall be proposed only along the cross-roads at the intersections/junctions along Inner Ring Road.
The Member Secretary, Chennai Metropolitan Development Authority is directed to implement the scheme carefully, in consultation with the Highways Department on account of minor adjustments required at certain points and ensure that the project does not get delayed on account of inter departmental consultation or on account of works like fly overs etc."
8.2. Chennai Metropolitan Development Authority (CMDA) which is one of the respondent in these cases has appointed M/s.RITES Ltd., an organization coming under the control of the Ministry of Railways for preparing the project report for the extension of MRTS from Velachery to St.Thomas Mount station and the consultants, namely, M/s.Rites Ltd., suggested construction of MRTS station at St.Thomas Mount on the northern side of the existing station from which suburban trains from Chennai Beach to Tambaram are plying. During the year 2007 to 2008, Chennai Metro Rail Project was started and therefore, it was suggested that MRTS station is to be constructed on the southern side instead of northern side and an inspection was also done.
8.3. A special meeting was convened by the CMDA on 04.09.2008 to discuss the inter-connectivity among MRTS, Chennai Metro Rail (in short 'CMRL') corridor and suburban rail at St.Thomas Mount, wherein Vice Chairperson of CMDA, Managing Director of CMRL and officials of Railways and CMDA had participated and certain decisions were taken. It was noted that locating the terminal metro station of corridor-2 viz., St.Thomas Mount Metro station alongside the St.Thomas Mount RTS station but north side of it would necessitate tightening the curvature for the metro rail alignment just before it enters the St.Thomas Mount Railway Station apart from necessitating fresh acquisition of land and structures and for the purposes of facilitating ease of interchange of travel by commuters and integration of various amenities, it was agreed that it would be desirable to construct one single station complex wherein along the existing suburban rail system, MRTS terminal RTS Station for the corridor-2 of the metro rail including the provision for stop over by long distance trains in future and CMRL came forward to prepare the design for the proposed station complex in consultation with MTP(R).
8.4. On 11.02.2010, meeting was held in the Chamber of the Chief Accounts Officer of the Railways and other officers including the Chief Architect and General Consultant and other experts had participated and a decision has been taken that if any land acquisition is required additionally near St.Thomas Mount Station, the process will be done by CMRL and the cost shall be shared by Railways and CMRL along with sharing the cost of the integrated building and the construction of the elevated structure beyond the St.Thomas Mount Station till the alignment of MRTS and CMRL splits, will be done by CMRL and the target fixed for the completion of the project was March 2012.
8.5. On 14.05.2010, CMDA has convened a meeting under the Chairmanship of Additional Chief Secretary to Government of Tamil Nadu and Vice-Chairperson of CMDA, wherein the officials of Southern Railways, CMRL, the officials of CMDA as well as General consultants of CMRL had participated and noted in the said meeting that Chennai Metro Rail project has become a reality and that the CMRL, responsible for implementing the said project, has firmed up the alignment and its station integration with St.Thomas Mount suburban railway station, recently it is imperative that MRTS alignment should enter at an appropriate angle the St.Thomas Mount suburban railway station so as to achieve inter-city rail systems as it clearly benefits the commuters apart from assisting in the reduction of traffic congestion in the metropolis as a whole. In the said meeting, preliminary discussion held on 09.04.2010 was also taken into consideration and the guidelines as proposed by MTP(R) for stand-alone segment of the rail alignment was found acceptable in view of the following:
(i) The road sub-component of the composite corridor as acquired and being implemented by the DoH has been kept intact. Otherwise the road sub-component would need to be realigned to meet with the original alignment warranting fresh acquisition/alienation of further lands for the road purpose itself. Even if this additional acquisition is pursued, it would be infructuous in that the original alignment as approved in the Master Plan would not integrate with the Chennai Metro Rail project at St.Thomas Mount railway station;
(ii) The optimal integration of all the 4 rail systems viz., the Metro Rail, MRTS, Sub-urban rail and long distance (inter-city) rail systems is ensured; and
(iii) Recognizing the fact that there are insurmountable difficulties to stick to the original stand-alone rail alignment to the ground realities in respect of the road component of the composite corridor with its lateral deviations, the stand-alone rail alignment as proposed now by the MTP(R) is the most doable one given the constraints at (i) and (ii) above, even though it affects a new set of land and structures different from that affected by the original alignment. As the enormity of benefits accruing to the society at large by the limitless interchange options made possible by the development of the integrated rail terminal at St.Thomas Mount would far outweigh the inconvenience or hardship caused to a few number of owners of land and structures affected by the proposed amended alignment, it is imperative that the land and structures needed for the proposed amended alignment is acquired in the larger interest of the benefits accruing to the community as a whole, even if difficulties are encountered in the process of acquiring the land and structures.
4. The MRP(R) was requested to prepare immediately the land plan schedule in consultation with the ST(LA), (MRTS Ph.II Extn.) for the amendments proposed for the stand-alone rail alignment. On receipt of the same, the ST(LA), (MRTS Ph.II Extn.) was requested to initiate action for acquisition of the affected land and structures, on the strength of the G.O.No.14, H&UD Dept. dt. 14-1-2008 administratively sanctioning the implementation of the MRTS Ph.II Extn. Project. In the meantime necessary proposals may be sent to the Government for approving the amendments proposed to the stand-along rail alignment."
8.6. In the 232nd Authority meeting held on 28.05.2010, implementation of MRTS Ph.II Extension, especially with regard to amendments to the stand-alone rail alignment was placed for approval and it was also approved on that date. Thereafter, the Principal Secretary of CMDA has written a letter to the first respondent/Government stating that the authority has approved the amendment to stand-along rail alignment and therefore, requested them to move the Government for approval of the amendment proposed by MTP(R) at an early date.
8.7. The Principal Secretary of CMDA has written a letter dated 29.06.2010 to the Chief Engineer, Highways Project, Chennai-600 015 stating among other things that in the meeting held, it has been clarified that the alignment of composite corridor (accommodating IRR) has not been modified, but the alignment has been marginally shifted westwards to the extent of 2mtrs to 14mtrs just before the stand-alone rail alignment deflects from the composite corridor and the said fact has been reported after field verification done by the concerned officials and also reflected in the minutes of the meeting held on 14.05.2010.
8.8. The first respondent passed G.O.Ms.No.149 dated 06.07.2010 accepting the proposal of CMDA and accordingly, revised administrative sanction at the project cost of Rs.877.59 Crores for MRTS Phase-II project from Thirumylai to Velachery. The first respondent has considered the amendments sought for by CMDA to the stand-alone rail alignment of MRTS Phase-II extension from Adambakkam station to St.Thomas suburban railway station and issued G.O.Ms.No.274 dated 29.11.2010, accepting the proposal made by CMDA and accorded administrative sanction for the stand-alone segment of the railway alignment from the point it branches off from the composite corridor at Adambakkam stations to existing St.Thomas Mount suburban railway station with reference to amendments proposed by Metropolitan Transport Project(R).
8.9. The Collector of Kancheepuram District has submitted a proposal under Section 4(1) of the Land Acquisition Act, 1894 for the acquisition of wet lands ad-measuring 6412 sq.mtrs in S.Nos.10 etc., in Adambakkam Village, Alandur Taluk, Kancheepuram District for MRTS Phase-II extension for formation of railway lines from Velachery to St.Thomas Mount vide its letter dated 20.11.2010 and the Principal Secretary and Commissioner of Land Administration has also recommended the said proposal vide its letter dated 05.01.2011. The Government has accepted the said proposal mooted out by the Collector of Kancheepuram District, recommended by the Principal Secretary and Commissioner of Land Administration and issued G.O.Ms.No.34 dated 11.02.2011, invoking urgency clause under Section 17(2) of the Land Acquisition Act and also directed publication of the same in the Tamil Nadu Government Gazette and it was also published on 11.02.2011 itself.
8.10. The first respondent/Government has passed an order in G.O.Ms.No.222 dated 11.10.2012 issuing declaration under Section 6 of the Land Acquisition Act, 1894 under Section 17(2) of the said Act and ordered publication. As already stated above, Thiru.S.Ekambaram and 10 others made a challenge to G.O.Ms.No.34 dated 11.02.2011 by filing W.P.No.4794/2011 and the said writ petition came to be dismissed after contest and number of persons, who are going to be affected on account of acquisition to be made, in pursuant to the above said Government Order, had also filed writ petitions challenging the vires of the said Government Order and other consequential reliefs.
8.11. The first respondent/Government did not file any counter in W.P.No.4794/2011 and CMDA has filed its counter and the Deputy Chief Engineer MTP(R) has also filed its counter in W.P.No.4794/2011. CMDA in its counter affidavit has averred that the prime consideration for invocation of Section 17(2) of the Land Acquisition Act, 1894 is to implement the mega infrastructure project at the possible quick time, so that benefits of the infrastructure accrue to the Society as early as possible. CMDA in its counter has also referred to G.O.Ms.No.343 dated 20.12.2006, wherein the Government has approved the composite corridor (accommodating IRR at grade and the elevated MRTS on single pillars along the median of the IRR) from Velachery to Ennore and would further state that the concept of composite corridor is to have one single alignment (to the extent possible) for both the road and rail systems in lieu of one separate rail alignment and one separate road alignment with the objective of minimizing the land/structures affected by two different proposals. It is further averred in the counter that though the composite corridor is for a length of about 3.5 kms, for the purposes of linking the Inner Circular Corridor (rail) (MRTS Phase-II Extension) alignment with the existing Chennai Beach-Tambaram rail sector near St.Thomas Mount, the necessity to have a separate stand-alone rail alignment for a short stretch of less than a km has occurred and accordingly, developments have been frozen and the stand-alone rail alignment has been duly approved by the authority in its meeting held on 27.03.2001 and the Government has also approved by passing G.O.Ms.No.343 dated 20.12.2006 and thereafter, G.O.Ms.No.14 dated 14.01.2008 came to be issued according administrative sanction for implementation of the project with regard to MRTS Phase-II from Velachery to St.Thomas Mount along the composite corridor at a cost of Rs.495.74 crores to be shared jointly by the Government of India and Government of Tamil Nadu at the cost sharing formula of 67:33.
8.12. As regards the necessity to have a separate stand-alone rail for a short stretch of less than a km, it is stated in the counter by CMDA that some minor adjustments are required at certain points for the reason that rail alignment cannot exactly fit into the road alignment and can necessarily have connectivity with the existing rail sector. Moreover, MRTS has to integrate with Chennai Beach Tambram rail sector at St.Thomas Mount Station and it would deflect from the alignment of Inner Ring Road at Adambakkam to connect with St.Thomas Mount Station for a short distance of about 1.5 km and the said Government Order has also been incorporated in the Second Master Plan prepared by CMDA and the Government has also approved the stand-alone rail alignment by passing G.O.Ms.No.274 dated 29.11.2010. CMDA would further state in the counter that CMRL has come into being and has been making efforts to integrate its corridor-2 of MRTS at St.Thomas Mount suburban railway station and at the time of approving the alignment for composite corridor, which is a small stretch of stand-alone alignment in December, 2006, CMRL was neither approved nor its alignment was wrapped up and at that point of time, the issue of integrating MRTS alignment along the CMRL at St.Thomas Mount Railway Station did not arise and consequently, the said alignment has not been integrated. The concept of alignment of CMRL has not been incorporated in the Second Master Plan, which came into force on 02.09.2008.
8.13. It is further stated by CMDA in its counter that the Government approved in principle the corridor-I and corridor-II of CMRL in G.O.Ms.No.180, PD & SI Department dated 12.12.2007 and detailed alignment and stations for CMRL was undertaken only subsequently and number of meetings were made by CMDA, wherein officers from railways, CMRL, CMDA and consultants took part, wherein the MRTS project for stand-alone segment of the rail alignment and there was no deviations while executing IRR and in fact IRR has not been modified, but its alignment has been marginally shifted westwards to an extent of 2 meters to 14 meters, just before the stand-alone rail alignment deflects from the composite corridor. As regards the contentions put forward on behalf of the petitioner in W.P.No.4794/2011 that number of stretches put up by the residents with the approval of the concerned authorities have to be demolished to pave way for MRTS rail line, it is contended by CMDA that inconvenience/hardship caused to a few number of owners of land and structures affected by the proposed amended alignment will not outweigh the benefits accrued to the community as a whole and no infrastructure project can ever be implemented without acquiring land or structure, even if it affects an individual or a group of individuals.
8.14. It is stated by CMDA in its counter that the prime consideration for invoking Section 17(2) of the Land Acquisition Act is to implement the mega infrastructure project at the possible quick time so that the benefits of the infrastructure accrue to the society, the moment the project is completed and commissioned and while passing G.O.Ms.No.34 dated 11.02.2011, the Government, after proper and due application of mind to the relevant materials placed before it, has rightly passed the said order. CMDA also took a stand that delay was caused on account of non-realization of funds by the Government of India and the non-invocation of Section 17(2) of the Land Acquisition Act, 1894 has also contributed for the delay in completion of the project. It is further contended that three projects, namely, MRTS Phase-I, Phase-II & Phase-II Extensions were designed with a definite time frame and project cost were cleared by the Central Planning Commission before it is formally sanctioned by the Ministry of Railways, and subsequently by the Government of Tamil Nadu for the adoption of cost sharing formula and any further delay may also lead to cost of escalation and justified the invocation of urgency clause. As regards hardship and inconvenience to the persons whose lands are going to be affected, it is stated in the counter affidavit by CMDA that for land and any other urban infrastructure projects, there will be acquisition of properties and displacement of people, rehabilitation of utilities/services etc. Even in the case of MRTS Phase-II extension project, while considering the amendments to the stand-alone rail alignment, one of the criteria was that number of land/structures affected should be to the minimum and in the present case, the alignment proposed by Metropolitan Transport Project (Railway) were found to affect only 27 structures against 35 structures by the original alignment and hence, prayed for dismissal of the writ petition.
8.15. The Deputy Chief Engineer, MTP (Railways), Chennai has filed the counter affidavit on behalf of the third respondent reiterating the stand taken by CMDA and would further contend that the composite corridor is for a length of about 3.5 kms and for the purpose of linking the ICC (rail)(MRTS Phase II Extension) alignment with the existing Chennai Beach- Tambaram rail sector near St.Thomas Mount, there exist a necessity to have a separate stand-alone rail alignment for a short stretch of less than a km and therefore, developments have been frozen and subsequently, the stand-alone rail alignment has been duly approved by the authorities at its meeting held on 27.03.2001 which resulted in issuance of G.O.Ms.No.343, H&UD Department dated 20.12.2006 and thereafter, administrative sanction was accorded for implementation of the project for extension of MRTS Phase-II from Velachery to St.Thomas Mount along the composite corridor vide G.O.Ms.No.14, H&UD Department dated 14.01.2008. The third respondent has also spelt out the reasons for such an alignment by stating that since CMRL has become a reality, the Government of India has decided to terminate MRTS at St.Thomas Mount where the optimal integration of all the four rail systems viz., The Metro Rail, MRTS, Suburban rail and long distance rail system are ensured and therefore, the alignment was modified considering the ground realities and engineering parameters for the stand alone portion. MRTS has also taken up the work in the centre median of IRR upto pillar No.157, which is the point of deviation and afterwards no work was taken up and the alignment from Velachery to 3.715 kms was fixed by Highways Department and MRTS has to necessarily follow the median up to that distance.
8.16. The third respondent would further contend that alignment is fine tuned in such a way to connect and integrate MRTS alignment with the integrated railway station at St.Thomas Mount since the same curvature does not permit. It is further stated by the third respondent that there was a threadbare discussion in the various meeting convened by the authority (CMDA), wherein all the officials including experts had participated and decisions were taken taking into consideration the technical and other parameters and thereafter, decision has been taken for modifying the alignment and also supported the stand of CMDA with regard to invocation of urgency provision.
8.17. The learned Judge on a perusal of the averments made in the writ petition and the counter affidavits filed by the respondent found that challenge made to the impugned Government Order was on the following grounds:
(i) that the invocation of the emergency provision under Section 17(1) of the Act, is highly arbitrary and unjustified, especially in the light of the enormous delay in the very implementation of the project on the part of the Government;
(ii) that while the impugned notification invokes Section 17(1) of the Act, the respondents have taken a stand that they invoked only Section 17(2), thereby indicating that there was no application of mind;
(iii) that at any rate, the order dispensing with the enquiry under Section 5-A, is not unjustified, as the need to do so was not even considered by the respondents; and
(iv) that as per the original recommendation made by the Consultants viz., Rites Limited, the alignment was to go primarily over a larger extent of poramboke land in a flood water canal without even consulting Rites Limited.
8.18. The learned Judge has considered the submissions made on behalf of the writ petitioners as to the invocation of the emergency provision and coupled with the legal position as laid down by the Hon'ble Supreme Court of India and this Court and found that the present acquisition only relates to 5kms stretch between Velachery to St.Thomas Mount Railway station and the change of alignment from the original proposal is to an extent of less than a km and the work of bringing rail track up to a stretch for more than 4 kms has already been completed and hence, there was a compelling need for the appropriate Government to invoke Section 17(1) and (2) of the Land Acquisition Act, 1894. The learned Judge, after culling out the ratio laid down by the Hon'ble Supreme Court of India in various decisions as to the invocation of urgency clause coupled with the facts of the case, held that the time taken by the respondents from the stage at which change of alignment was proposed and the stage at which Land Acquisition Cell was created to the time when the impugned order was issued, alone had to be taken into account for determining if there was any delay and further taking into consideration of the said fact that the interim order was in operation in respect of the impugned G.O.Ms.No.34 dated 11.02.2011, held that the delay in issuance of G.O.Ms.No.173 dated 28.11.2011 cannot justify the fact that there was no urgency and therefore, found justification for invocation of the said provision.
8.19. It is contended before the learned Judge that there was non-application of mind for the reason that in the Gazette notification it is stated that Section 17(1) has been invoked and whereas the impugned Government Order invocation resorted to Section 17(2). The learned Judge while dealing with the said issue, gone through the Government Orders and found that G.O.Ms.No.34 dated 11.02.2011 is the culmination of all the earlier Government Orders i.e., G.O.Ms.No.343 dated 20.12.2006, G.O.Ms.No.14 dated 14.01.2008, G.O.Ms.No.274 dated 29.11.2010 and G.O.Ms.No.3 dated 07.01.2011 and found that there existed an urgency for invocation of Section 17(2) and though it is stated in the Gazette Notification that Section 17(1) was invoked, it would not lead to the inference of non-application of mind on the part of the authorities and in fact in G.O.Ms.No.34 dated 11.02.2011, it has been stated that Section 17(2) alone was invoked.
8.20. The learned Judge has also dealt with the point urged by the writ petitioners with regard to change of alignment and while dealing with the said issue, has relied upon the decision rendered by this Court in The George Town Building Owner's Welfare Association v. Union of India [order dated 27.01.2012 made in W.P.No.29777/2011] and another decision in Vanuvampet Residents Welfare Association v. The Chief Engineer [Order dated 12.08.2010 made in W.P.No.16459/2010] and held that though the respondents did not discuss with the consultants for change of alignment, it would not vitiate the acquisition for the reason that deviation in alignment is to the extent of 500 meters and observed that even while constructing small house, small deviations and alterations bound to occur and hence, it cannot be said that the change of deviation is not justifiable. The learned Judge further found that acquisition is for the integration of 2 huge corridors with the existing railway lines and taking into consideration the larger public interest involved, has rejected the contention put forward by the writ petitioners and dismissed the writ petition vide order dated 30.07.2012. Aggrieved by the same, the writ petitioners have filed this writ appeal.
9. In the writ appeal as well as in the miscellaneous petition filed for stay, on behalf of the respondents 1, 4 and 5, counter affidavit has been filed by the Joint Secretary to Government, Housing and Urban Development Department, wherein it has been stated among other things that the State Government having taken a decision to realign the route of MRTS in order to suit the site of the integrated station which runs parallel to the existing suburban railway and the State Government had to approve the curve of 8 degrees for the purpose of providing the route in line with the position and site of the integrated railway station and the authorities have taken efforts to cause minimum damage to all parties concerned while making such an alignment. It is further stated in the said counter affidavit that work for 3.75kms out of 5 kms of MRTS line including acquisition of land thereof has been completed and the remaining work is to be done only for 1.3 kms and the area belonging to the appellants/writ petitioners is only 500 meters out of the balance of 1.3 kms. The respondents 1, 4 and 5 have also spelt out the reason as to the invocation of urgency clause by stating that as public interest play a prime role, the project has to be completed expeditiously as possible for the benefit of the public and it is to be done on urgent basis.
10. It is further stated in the said counter affidavit that the proposal of the Government was to establish an integrated station for CMRL and MRTS parallel to the existing suburban railway station and therefore, necessity arises for the Government to invoke the urgency clause and the reasons for urgency was also reflected in G.O.Ms.No.3, H&UD [UD3-2] Department dated 07.01.2011 and administrative sanction was also accorded in G.O.Ms.No.14 dated 14.01.2008. It is the further case of the respondents that CMDA has also clarified that IRR has not been modified but the alignment has been marginally shifted westwards to the extent of 2m to 14m just before the stand-alone rail alignment deflects from the IRR and the said decision has been taken with the larger objective of providing inter connectivity among the Metro Rail, MRTS, Suburban rail so that traffic congestion in the Chennai Metropolis can be greatly minimized. The Government had also felt the necessity and urgency for implementing the railway project in a fast/urgent manner and taking into consideration all the relevant facts had decided to invoke urgency provision under Section 17(2) of the Land Acquisition Act, 1894 and the said decision cannot be faulted as it was done with due and proper application of mind and hence, prays for dismissal of the writ appeal.
11. The second respondent/CMDA has filed its counter affidavit in the writ appeal reiterating the stand taken by them in the counter affidavit filed in the writ petition and also filed additional counter affidavit dated 20.08.2013 stating among other things that Phase-II Extension of MRTS project from Velachery to St.Thomas Mount covering a distance of 5kms is under implementation jointly by the Government of India and the Government of Tamil Nadu with an outlay of Rs.495.74 crores and the project got commenced in April 2008 and planned to complete the project by December 2012. It is further stated in the additional counter affidavit filed by CMDA that alignment was necessitated because the original rail alignment cannot exactly fit to the road alignment and that the rail alignment has to necessarily have connectivity with the existing rail sectors and moreover MRTS has to integrate with the Chennai Beach-Tambaram rail sector at St.Thomas Mount railway station and therefore, change of alignment for a short stretch of 1.5 kms out of 5 kms was sought and 4 kms of rail track construction has already been completed. The second respondent further stated that on account of Chennai Metro Rail project becoming a reality, has firmed up the alignment in January 2010 and its station integration with the St.Thomas Mount suburban railway station in May 2010, it is imperative that MRTS, Metro Rail, Suburban Rail and long distance (inter-city) rail systems are optimally integrated and CMDA in its authority meeting held on 28.05.2010 had also approved the amendments to the alignment vide Authority Resolution No.76/2010 and forwarded to the Government for the approval of the Government and the Government has also approved the same by passing G.O.Ms.No.274 dated 29.11.2010.
12. Mr.T.R.Rajagopalan, learned Senior Counsel appearing for the appellants in W.A.No.1548/2012 and for the petitioner in W.P.No.68/2011, Mr.T.V.Ramanujam, learned Senior Counsel appearing for the petitioners in W.P.Nos.31411/2012 and 8265/2013, Mr.D.Ravichandar, learned counsel appearing for the petitioner in W.P.No.3383/2013 and Mr.R.Sundaramurthy, learned counsel appearing for the petitioner in W.P.No.9437/2013 made the following submissions:
(i) There is no urgent need or necessity to invoke urgency clause under Section 17(2) of the Land Acquisition Act, 1894 and dispensing with Section 5-A enquiry for the reason that Phase-II extension rail link between Velachery to St.Thomas Mount has commenced about 5 years back and in fact there was considerable delay in completing Phase-I, which took about 14 years and Phase-II, which took about 9 years for completion and there is nothing wrong in conducting enquiry under Section 5-A of the Act so as to enable the persons, whose lands are going to be acquired on which the superstructures built by them stand and it would also enable them to put forward their objections and suggest alternative alignment for linkage of St.Thomas Mount railway station. The official respondents have failed to adduce any proper, tenable and sufficient reasons for invocation of urgency clause and dispensing with Section 5-A enquiry and admittedly, it is not a time bound project and only in that event, the real urgency exist for invoking the urgency provision. Moreover, in the Gazette notification, it has been stated that Section 17(1) has been invoked, whereas in the impugned Government Order it has been stated that Section 17(2) has been invoked and the said error would vitiate the entire acquisition proceedings.
(ii) In W.P.No.4794/2011, which is the subject matter of writ appeal in W.A.No.1548/2012, admittedly, the first respondent/Government did not file their counter, however the counter filed by them, which was not taken on record, has been relied on by the learned Judge for rejecting the contentions put forward on behalf of the writ petitioners. The appellants and the writ petitioners are going to be deprived of their Constitutional right under Article 300-A of the Constitution of India, as, at the time of purchase of their lands, they were informed that no acquisition would take place and after obtaining necessary planning permission and other statutory clearances only, they had put up superstructures which are also subjected to statutory levies and their families had also settled and only in the event of change of alignment, as suggested in the impugned Government Orders, it would lead to demolition of superstructures and their displacement and since they are hailing from middle income group, it is almost impossible for them to find suitable alternative accommodation in the locality in which they are residing for a long time. Admittedly there is no immediate operation of rail service between Velachery and St.Thomas Mount and only in the event of completion of Phase-II extension, the integration of MRTS, CMRL and suburban rail in a single station, namely, St.Thomas Mount Station the need would arise and it would take many more years and hence, there is no rhyme or reason for invoking urgency clause and dispensing with Section 5-A enquiry.
(iii) The petitioners in W.P.Nos.31411/2012 and 8265/2013 got the services of experts, who suggested, four alternative alignments and in the event of holding Section 5-A enquiry, opportunity would have been offered to the said petitioners to put forward their objections and also to suggest alternative alignment, but in view of invocation of urgency provision and dispensing with Section 5-A enquiry, they could not do so.
(iv) The petitioner in W.P.No.31411/2012 also allege malafides against the officials of the railways and that is why the original alignment has been changed, which would affect large number of superstructures put up by the residents and if the original alignment being adhered to, it will pass through Government poromboke lands wherein number of encroachers are in occupation and only for some extraneous reasons and considerations, the original alignment has been given a go-by and present alternative alignment has been suggested and no scientific or technical study has been done with regard to alternative alignment.
(v) The deviations/change of alignment is totally against public interest and huge public money is also going to be wasted in the event of alternative alignment being put into place and Phase-II extension is also not going to be completed within a short span of time for the reason that contracts awarded for construction of such stretch has been cancelled and there exist no real urgency.
(vi) MRTS has also taken inconsistent stand, as evidenced by their letter dated 25.01.2010 and 22.02.2010 and in order to oblige some bigwigs only, they are taking inconsistent stand and in any event, the change of alignment is going to benefit encroachers only.
(vii) In the high level meetings conducted by the authorities of CMDA, no fruitful discussions took place by taking into consideration the scientific and technical study and interest of the public, who are going to be affected and the representations submitted by them in that regard, have not at all been considered.
The learned Senior Counsel appearing for the appellants/writ petitioners as well as the other learned counsel appearing for the petitioners had invited the attention of this Court to various documents filed in the typed of papers and also placed reliance upon the following judgments:
(i) First Land Acquisition Collector and Others v. Nirodhi Prakash Gangoli and Another [(2002) 4 SCC 160]
(ii) Union of India and Others v. Shakuntala Gupta (dead) by Lrs. [(2002) 7 SCC 98]
(iii) Union of India and Others v. Mukesh Hans [(2004) 8 SCC 14]
(iv) Union of India and Others v. Krishan Lal Arneja and Others [(2004) 8 SCC 453]
(v) Mahadevappa Lachappa Kinagi and Others v. State of Karnataka and Others [(2008) 12 SCC 418]
(vi) Tika Ram and Others v. State of Uttar Pradesh and Others [(2009) 10 SCC 689]
(vii) Nand Kishore Gupta & Ors. v. State of U.P. & Ors. [AIR 2010 SC 3654]
(viii) Rajinder Kishan Gupta & Anr v. Union of India & Ors. [AIR 2010 SC 3831]
(ix) Essco Fabs Private Limited and Another v. State of Haryana and Another [(2009) 2 SCC 377]
(x) Anand Singh and Another v. State of Uttar Pradesh and Others [(2010) 11 SCC 242]
(xi) State of West Bengal and Others v. Prafulla Churan Law and Others [(2011) 4 SCC 537]
(xii) Dev Sharan and Others v. State of Uttar Pradesh and Others [(2011) 4 SCC 769]
(xiii) Darshan Lal Nagpal (dead) by LRS. v. Government of NCT of Delhi and Others [(2012) 2 SCC 327]
(xiv) Jayabheri Properties Private Limited and Others v. State of Andhra Pradesh and Others [(2010) 5 SCC 590]
(xv) Laxman Lal (Dead) through LRS. and Others v. State of Rajasthan and Others [(2013) 3 SCC 764]
13. Per contra, Mr.A.L.Somayaji, learned Advocate General appearing for the first respondent/Government and CMDA has invited the attention of this Court to the counter affidavit filed by the respondents 1, 4 and 5 and the additional counter affidavit filed by the second respondent and would submit that there was a need to change the original alignment for the reason that Chennai Metro Rail Project came into being subsequently on 02.09.2008 and a decision has been taken to integrate MRTS, CMRL rail lines with Chennai Beach to Tambaram suburban line in a particular station, namely, St.Thomas Mount railway station and a further decision was also taken to terminate long distance trains so that the city traffic may get reduced. It is further submitted by the learned Advocate General that in the event of old alignment put into execution, the rail lines of MRTS would cut across the proposed integrated railway station at St.Thomas Mount and since it was not technically feasible, a decision was taken after due deliberations and consultations in various meeting held by the authority of CMDA wherein the Government of Tamilnadu, officials of MRTS and CMRL and experts had participated and after full and exhaustive deliberations, decision has been taken in public interest for change of alignment which would result in the integration of MRTS rail lines into the St.Thomas Mount railway station and it cannot be faulted with. It is the further submission of the learned Advocate General that as per the old alignment, 35 structures have to be demolished and as per the new alignment, 28 structures would be affected and the new alignment would ultimately result in optimal integration of four rail systems at St.Thomas Mount and most of the works have been completed except 500 meters and if the same is put on hold on account of pendency of this litigation and once the cases are decided in favour of the railways, the remaining part would be completed without loss of time and administrative sanction has already been accorded. It is also contended by the learned Advocate General that while executing huge and mega projects, some delay is bound to occur and it cannot be put against the authorities and taking into consideration the enormous benefit that would accrue in the event of integration of four rail systems at St.Thomas Mount railway station and to meet out the real urgency, a conscious decision has been taken to invoke Section 17(2) of the Land Acquisition Act, 1894 and dispensing with Section 5-A enquiry and it cannot be faulted with. As regards the stand taken by the appellants/writ petitioners that mistake had crept in the Gazette notification published in respect of invocation of urgency provision, it is submitted by the learned Advocate General that it has been stated that Section 17(1) has been invoked and it was an inadvertent one and also drawn the attention of this Court to the impugned Government Order No.34 dated 11.02.2011 wherein it has been stated that only Section 17(2) has been invoked. Lastly it is submitted by the learned Advocate General that the decision for changing the alignment has been taken after due deliberations and consultations with experts and since the said decision was based on due deliberations and thorough discussion, the decision taken for changing the alignment cannot be interfered with. The learned Advocate General, in support of his submissions, has placed reliance upon the following judgments:
(i) Deepak Pahwa etc., v. Lt. Governor of Delhi and Others [AIR 1984 SC 1721]
(ii) Chameli Singh and Others v. State of U.P and Another [(1996) 2 SCC 549]
(iii) Ramniklal N.Bhutta and Another v. State of Maharashtra and Others [(1997) 1 SCC 134]
(iv) Order dated 12.08.2010 made in W.P.No.16459 of 2010.
14. Mr.R.Thiagarajan, learned Senior Counsel appearing for MRTS would submit that necessary administrative sanction was accorded for Velachery to St.Thomas Mount corridor in G.O.Ms.No.14 dated 14.01.2008 and in view of CMRL come into being, alignment was needed and in respect of stand-alone rail alignment portion G.O.Ms.No.274 dated 29.11.2010 came to be issued and since CMRL wants to integrate its rail lines at St.Thomas Mount railway station, a decision has been taken to integrate all rail systems at St.Thomas Mount railway station which would reduce traffic congestion in the City of Chennai and it would also benefit the struggling public, who need not go to Chennai city for boarding the train or alighting from it. It is further contended by the learned Senior Counsel appearing for MRTS that the decision for change of alignment was based on relevant materials and thorough discussion, and though malafides were alleged against the railway officials by the petitioners in W.P.No.31411/2012, it was enquired into and closed and therefore, it is not open to the petitioners to urge the very same point. It is the further submission of the learned Senior Counsel that the area required for the completion of the project is only 500 meters and alignment deviation was insisted because of the integration of CMRL rail lines with suburban rail lines at St.Thomas Mount railway station and a conscious decision has been taken to integrate MRTS and that is why deviation was required. Insofar as the allegation that the services of contractors has been terminated and no work is going on, it is the submission of the learned Senior Counsel that services of different contractors has been engaged and the work is still going on and since the decision for change of alignment has been taken solely based on public interest, it cannot be faulted with and since it is a policy decision based on technical considerations, the scope of interference is very limited. The learned Senior Counsel in support of his contentions, placed reliance upon the following judgments:
(i) C.Govindarajan v. Government of T.N. [(2007) 5 MLJ 831]
(ii) The Southern Railway v. S.Ponnusamy and 4 others [2007-3-L.W.792]
(iii) Unreported judgment dated 07.11.2003 made in W.A.Nos.1781/2013 and 1781/2013.
15. In response to the said submission made by the learned Advocate General, learned Senior Counsel appearing for MRTS, learned Senior Counsel appearing for the appellants in W.A.No.1548/2012 would submit that Pillar No.157 from where deviation would commence has not been put without approval and in fact no work has been done beyond Velachery Railway Station and therefore, there is absolutely no rhyme or reason for invoking Section 17(2) and dispensing with Section 5-A enquiry. It is the further submission of the learned Senior Counsel appearing for the appellants that taking into consideration the superstructures put up by the petitioners and other residents of the locality, who are going to be affected on account of putting up MRTS elevated rail lines, opportunity of hearing has to be necessarily afforded to them under Section 5-A of the Land Acquisition Act, 1894 and it would enable them to suggest alternative alignment without affecting the superstructures and the interest of the railways also.
16. This Court paid its anxious consideration and best attention to the submissions made by the learned Senior Counsel appearing for the appellants/writ petitioners and other learned counsel appearing for the respective writ petitioners and also the submissions made by the learned Advocate General appearing for the Government and CMDA and the learned Senior Counsel appearing for MRTS and perused the entire materials placed before this Court in the form of typed set of documents.
17. The following questions arise for consideration in the writ appeal as well as in the writ petitions:
(i) Whether there is a real emergency for invoking Section 17(2) of the Land Acquisition Act, 1894 and dispensing with Section 5-A enquiry under the said Act ?
(ii) Whether in the facts and circumstances of the case, deviation in alignment is warranted and is taken in public interest?
QUESTION NO.1
18. The first respondent/Government has passed G.O.Ms.No.343 dated 20.12.2006 with regard to development of composite corridor for Inner Ring Road (IRR) and remaining segments of Mass Rapid Transit System (MRTS) from Velachery to Ennore and developing MRTS on single pillars along the central median of the composite corridor. CMDA has requested the Government to take up the proposal for extending MRTS Phase-II from Velachery to St.Thomas Mount for a distance of 4.2 kms at a cost of Rs.225 Crores and sought concurrence from the Government of India with a cost sharing formula of 67:33 between the State Government and the Central Government. The Government has decided to accept the said proposal mooted out by CMDA and accordingly, passed G.O.Ms.No.14, Housing and Urban Development [UD.3(2)] Department dated 14.01.2008. Thereafter, number of representations have been received from the residents of the locality including the appellants/writ petitioners with regard to the alleged change of alignment and in this regard, Metropolitan Transport Project (Railways) has written a letter dated 25.01.2010 to CMDA stating among other things that alternative alignment No.IV shown in the plan has been chosen by them for adoption and requested for their concurrence. Subsequently a meeting was held between the officials of Railways, CMRL on 11.02.2010 with regard to carrying out construction and apportionment of cost between railways and CMRL and fixation of contract and the target date of completion of St.Thomas Mount Station along with the project work before the end of March 2012.
19. The Chief Engineer (H), Highways Projects, Chennai-15 has addressed a letter dated 14.05.2010 to CMDA stating among other things that the composite alignment for MRTS Phase-III and Southern Sector of IRR was discussed and number of meetings were held wherein the modification of L.A for providing MRTS Phase-III extension from Velachery to Adambakkam i.e., up to Chainage 1000 where the MRTS alignment deviates from Southern Sector of IRR alignment and further that IRR work has been carried out along the approved alignment only and no deviation has been done from the approved alignment.
20. A meeting was convened on 14.05.2010 under the Chairmanship of Additional Chief Secretary to Government of Tamil Nadu, who is also the Vice-Chairperson of CMDA, wherein the Secretary to Government, HW &MP Department and other officials of CMRL and MRTS and chief consultants of CMRL had participated. In the meeting, the earlier approval of the alignment for the composite corridor and the small stretch of the MRTS corridor from the point it branches off from the composite corridor to St.Thomas Mount in December 2006 was discussed and it was found that at that point of time, Metro Rail Project was neither approved nor has firmed up since CMRL has become a reality and CMRL is responsible for implementing the project and it has also firmed up the alignment and its station integration with St.Thomas Mount suburban railway station recently, it is imperative that MRTS alignment should enter at an appropriate angle the St.Thomas Mount suburban railway station so as to achieve optimal integration among the Metro Rail, MRTS, suburban rail and long distance inter-city rail systems. It was also discussed that integration among the above rail systems would enormously benefit the commuters in the Chennai Metropolitan area apart from assisting in the reduction of traffic congestion in the metropolis as a whole.
21. A preliminary discussion was also held on 09.04.2010 wherein MTP(R) has proposed certain amendments for the stand-alone segment of the rail alignment branching from the composite corridor and connecting St.Thomas Mount suburban railway station and the suburban rail system and the officers present in the said meeting, after detailed discussions, has accepted the amendments proposed by MTP(R) for the above said stand-alone segment. In the said meeting, insurmountable difficulties to stick to the original stand-alone rail alignment in view of the subsequent development, was also discussed and a decision has been taken to accept the proposal mooted out by MTP(R) and while arriving such decision, enormous benefits that would accrue to the society at large on account of integrating rail terminal at St.Thomas Mount was also taken into account and it was felt that the said benefit would outweigh the inconvenience/hardship caused to the owners of land and structures, who are affected by the proposed amendment/deviation in alignment. In the said meeting, CMDA was directed to send necessary proposal to the Government for approving the amendment proposed by MTP(R) to the stand-alone rail alignment and it was also placed in the 232nd authority meeting held on 28.05.2010 in the premises of CMDA and it was also approved.
22.Thereafer, CMDA had written a letter dated 21.06.2010 to the first respondent herein requiring him to move the Government for the early approval of the amendments proposed by MTP(R) for the stand-alone segment of rail alignment. On 29.06.2010, CMDA has written a letter to the Chief Engineer (H), Highways Projects, Chennai-15, clarifying that the alignment of the composite corridor (accommodating IRR at grade and the elevated MRTS on single pillars along the median of the ITT) has not been modified, but that the alignment has been marginally shifted westwards to the extent of 2ms to 4ms just before the stand-alone rail alignment deflects from the composite corridor and shifting of the alignment was also rejected after full verification done by the officials of MTP(R) and MRTS Phase-II extension. The Government has considered the above said proposal mooted out by CMDA and also revised the administrative sanction for the revised proposal by passing G.O.Ms.No.149 dated 06.07.2010. The Government also approved the amendment to the stand-alone rail alignment segment of MRTS Phase-II extension from Adambakkam to existing St.Thomas Mount suburban railway station, suggested and mooted out by CMDA, by passing G.O.Ms.No.274, Housing and Urban Development [UD.3(2)] Department dated 29.11.2010 and the said Government Order is also put to challenge in W.P.Nos.31411/2013, 8265/2013 and 9437/2013.
23. CMDA, vide letter dated 28.10.2010 addressed to the Government, has informed that after detailed deliberations with all concerned, the design for RTS station at Puzhuthivakkam and Adambakkam was finalized and land acquisition cell has prepared LPs for the additional lands required for those stations over and above the land made available as part of IRR and the extent of land proposed to be acquired additionally for those two stations comprising 11048.50 sq.m of land in Alandur Town and 5851.40 sq.m in Madipakkam Village. CMDA has further stated that for early completion of the project, the process of acquiring land is imperative and so also putting up the structures and therefore, requested the Government to invoke urgency clause of the Land Acquisition Act, 1894. CMDA has also made a further request to empower the land acquisition officer concerned to invoke the urgency clause of the said Act and procuring the lands by negotiations wherever necessary as has been ordered for MRTS Phase-II project. The Government, after elaborate consideration, has decided to accept the said proposal and accorded administrative sanction for MRTS Phase-II project to acquire lands and structures for the amended stand-alone rail alignment and the additional lands required for Adambakkam and Puzhuthivakkam RTS stations and also permitted the land acquisition officer to procure private lands wherever necessary by private negotiation and also empowered him to invoke urgency clause under Section 17(2) of the Act wherever necessary.
24. Accordingly, the Collector of Kancheepuram District has submitted a proposal dated 23.12.2010 under Section 4(1) of the Land Acquisition Act, 1894 read with urgency provision under Section 17(2) for acquisition of 6412 sq.mtrs of patta lands in S.No.10 etc., Adambakkam Village, Alandur Taluk, Kancheepuram District for the formation of railway lines from Velachery to St.Thomas Mount for MRTS Phase-II extension and it was also recommended by the Principal Secretary and Commissioner of Land Administration on 05.01.2011. The Government has accepted the proposal submitted by the Collector of Kancheepuram District, recommended by the Principal Secretary and Commissioner of Land Administration and directed the Collector of Kancheepuram District to instruct the land acquisition officer to cause publication of the substance of the notification at convenient places so as to enable the Government to publish Declaration under 6 within 15 days from the date of Section 4(1) notification and also directed the Works Manager, Government Press, Chennai to publish in the Tamil Nadu Government Gazette (Extraordinary) on 11.02.2011.
25. The Government Central Press while publishing the said notification in the Tamil Nadu Government Gazette (Extraordinary) dated 11.02.2011 has committed a mistake by stating that lands are to be acquired under the provisions of Section 17(1) of the Land Acquisition Act, 1894. It is the vehement submission of the learned Senior Counsel appearing for the appellants that since the Gazette notification speaks only about 17(1) and not under 17(2), the proceedings have become non est and are liable to be quashed. In response to the said submission, the learned Advocate General has submitted that it was only an inadvertent mistake occurred while publishing the Gazette publication and drawn the attention of this Court to the impugned Government Order No.34 dated 11.02.2011 wherein it has been stated that only Section 17(2) alone has been invoked. In the considered opinion of the Court, mentioning of Section 17(1) in the Government Gazette is an inadvertent mistake and a perusal of G.O.Ms.No.34 dated 11.02.2011 make it amply clear that the Government intends to invoke only Section 17(2), and is a curable defect and on account of the same, the invocation of urgency clause has not been vitiated. After notification of Section 17(2) in G.O.Ms.No.34 dated 11.02.2011, Section 6 Declaration came into being vide G.O.Ms.No.222 dated 11.10.2012 and it was also published in the Tamil Nadu Government Gazette on that date itself.
26. The primordial submission made by the learned Senior Counsel appearing for the appellants in W.A.No.1548/2012, learned Senior Counsel appearing for the petitioners in W.P.Nos.31411/2012 and 8265/2013 and learned counsel appearing for the petitioners in W.P.Nos.3383/2013 and 9483/2013 is that deviation in the alignment from the original proposal has been done for extraneous reasons in order to oblige somebody, more particularly encroachers of poromboke lands, through which the original rail line was proposed and the decision taken to invoke Section 17(2) and dispensing with Section 5-A enquiry was without any basis, rhyme or reason and absolutely there is no urgency to invoke the said provision for the reason that the project is still in infant stage and it is not going to be completed within a short span of time and admittedly, there was time as well as cost overrun in the earlier centres i.e., from Chennai Beach to Velachery. It is also contended that the petitioners in W.P.Nos.31411/2012, 8265/2013 had engaged the services of experts and prepared alternative alignment and if a chance is given to them in the form of Section 5-A enquiry, they are very much optimistic that the authorities would consider the same and give up the present deviation in alignment and further that the petitioners belong to middle income group and by spending their hard earned money purchased lands, put up structures and living with their families for quite some time and in the event of deviation in alignment put into place, they will be displaced without any suitable or alternative accommodation in the locality and any amount of compensation may not redress their grievance.
27. The sum and substance of the arguments of the primordial points urged before this Court is that since MRTS project is going on for quite long years and will also take some more time for it's completion, there exist no urgency for invocation of Section 17(2) of the Land Acquisition Act, 1894 and dispensing with Section 5-A enquiry in the light of the facts narrated above.
28. Let this Court considers the decisions relied on by the learned Senior Counsel appearing for the appellants/writ petitioners in W.A.No.1548/2012, the learned Senior Counsel appearing for the petitioners in W.P.Nos.31411/2012 and 8265/2013.
29. In First Land Acquisition Collector and Others v. Nirodhi Prakash Gangoli and Another [(2002) 4 SCC 160], Section 17(1) was invoked and the subject matter of challenge was requisition of premises under the provisions of the West Bengal Requisition and Control (Temporary Provision) Act, 1947, for accommodating students of Calcutta National Medical College and acquisition proceedings were initiated in respect of some premises under the provisions of the Land Acquisition Act, 1894. Single Bench of Calcutta High Court held that notifications issued under Sections 4 and 6 as well as invocation of Section 17(1) and (4) and dispensing with Section 5-A enquiry were not unassailable and directed appropriate authority to proceed afresh from the stage of issuance of the notification under Section 9 and it was also issued. The owners of the premises made a challenge to the said order and it was allowed by a Division Bench of the Calcutta High Court and the acquisition proceedings was quashed and hence challenge was made before the Hon'ble Supreme Court of India. The Hon'ble Supreme Court of India has considered the question of urgency of an acquisition under Sections 17(1) and (4) of the Act and held as follows:
"5. The question of urgency of an acquisition under Sections 17(1) and (4) of the Act is a matter of subjective satisfaction of the Government and ordinarily it is not open to the court to make a scrutiny of the propriety of that satisfaction on an objective appraisal of facts. In this view of the matter when the Government takes a decision, taking all relevant considerations into account and is satisfied that there exists emergency for invoking powers under Sections 17(1) and (4) of the Act, and issues notification accordingly, the same should not be interfered with by the court unless the court comes to the conclusion that the appropriate authority had not applied its mind to the relevant factors or that the decision has been taken by the appropriate authority mala fide. Whether in a given situation there existed urgency or not is left to the discretion and decision of the authorities concerned. If an order invoking power under Section 17(4) is assailed, the courts may enquire whether the appropriate authority had all the relevant materials before it or whether the order has been passed by non-application of mind. Any post-notification delay subsequent to the decision of the State Government dispensing with an enquiry under Section 5-A by invoking powers under Section 17(1) of the Act would not invalidate the decision itself specially when no mala fides on the part of the Government or its officers are alleged. Opinion of the State Government can be challenged in a court of law if it could be shown that the State Government never applied its mind to the matter or that action of the State Government is mala fide. Though the satisfaction under Section 17(4) is a subjective one and is not open to challenge before a court of law, except for the grounds already indicated, but the said satisfaction must be of the appropriate government and that the satisfaction must be, as to the existence of an urgency. The conclusion of the Government that there was urgency, even though cannot be conclusive, but is entitled to great weight, as has been held by this Court in Jage Ram v. State of Haryana[(1971) 1 SCC 671]. Even a mere allegation that power was exercised mala fide would not be enough and in support of such allegation specific materials should be placed before the court. The burden of establishing mala fides is very heavy on the person who alleges it. Bearing in mind the aforesaid principles, if the circumstances of the case in hand are examined it would appear that the premises in question were required for the students of National Medical College, Calcutta and the notification issued in December 1982 had been quashed by the Court and the subsequent notification issued on 25-2-1994 also had been quashed by the Court. It is only thereafter the notification was issued under Sections 4(1) and 17(4) of the Act on 29-11-1994, which came up for consideration before the High Court. Apart from the fact that there had already been considerable delay in acquiring the premises in question on account of the intervention by courts, the premises were badly needed for the occupation by the students of National Medical College, Calcutta. Thus, existence of urgency was writ large on the facts of the case and therefore, the said exercise of power in the case in hand, cannot be interfered with by a court of law on a conclusion that there did not exist any emergency. The conclusion of the Division Bench of the Calcutta High Court, therefore, is unsustainable."
Ultimately, the appeal was allowed and the land acquisition proceedings was upheld.
30. In Union of India and Others v. Shakuntala Gupta (Dead) by LRs. [(2002) 7 SCC 98], proceedings under Land Acquisition Act was initiated by invoking the provisions of Section 17(1) for accommodating the Government office and it was put to challenge and the impugned notifications were quashed. An arbitrator was also appointed to determine the damages payable by the Delhi Administration to the writ petitioners. The said order was challenged before the Hon'ble Supreme Court of India by way of application for Special Leave and it was dismissed. Thereafter, the appeal was disposed of by a reasoned order and review application was filed by the Union of India. The Hon'ble Supreme Court of India held that urgency sought to be expressed in the impugned notification cannot held to be sufficient for the purposes of Section 17(1) in that case when it has already been held to be bad in the earlier decision relating to the very same parties. By citing the said reason, the review application was dismissed.
31. In Union of India and Others v. Mukesh Hans [(2004) 8 SCC 14], acquisition of 4000 sq.yards of land at Mehrauli for the purpose of conducting annual festival called "Phool Walon Ki Sair" and for that purpose, urgency clause was invoked and it was challenged in the High Court of Delhi and it was held that dispensing with Section 5-A enquiry is unsustainable and permitted the acquisition proceedings to be continued afresh from the stage of Section 4A and consequently quashed Section 6 Declaration. Union of India, being aggrieved, filed SLPs and after admission, it was converted to Civil Appeals. The Hon'ble Supreme Court of India, taking into consideration its earlier decision in First Land Acquisition Collector case (cited supra) and other decisions and held as follows:
"32. A careful perusal of this provision which is an exception to the normal mode of acquisition contemplated under the Act shows that mere existence of urgency or unforeseen emergency though is a condition precedent for invoking Section 17(4), that by itself is not sufficient to direct the dispensation of the Section 5-A inquiry. It requires an opinion to be formed by the Government concerned that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with Section 5-A inquiry which indicates that the legislature intended the appropriate Government to apply its mind before dispensing with Section 5-A inquiry. It also indicates that 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 inquiry. 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 Sections 17(1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically Section 5-A inquiry will be dispensed with. But then that is not the language of the section which in our opinion requires the appropriate Government to further consider the need for dispensing with Section 5-A inquiry 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 each and 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 inquiry. It is possible in a given case the urgency noticed by the appropriate Government under Section 17(1) or the unforeseen emergency under Section 17(2) itself may be of such degree that it could require the appropriate Government on that very basis to dispense with the inquiry under Section 5-A but then there is a need for application of mind by the appropriate Government that such an urgency for dispensation of the Section 5-A inquiry is inherent in the two types of urgencies contemplated under Sections 17(1) and (2) of the Act.
.........
36. It is clear from the above observation of this Court that right of representation and hearing contemplated under Section 5-A of the Act is a very valuable right of a person whose property is sought to be acquired and he should have appropriate and reasonable opportunity of persuading the authorities concerned that the acquisition of the property belonging to that person should not be made. Therefore, in our opinion, if the appropriate Government decides to take away this minimal right then its decision to do so must be based on materials on record to support the same and bearing in mind the object of Section 5-A."
Ultimately, the civil appeals were dismissed.
32. In Union of India and Others v. Krishan Lal Arneja and Others [(2004) 8 SCC 453], acquisition proceedings were initiated for putting up residential quarters and it was allowed by a Single Bench of the Delhi High Court and appeals preferred against the said orders were also dismissed by a Division Bench of the said Court and hence, Union of India preferred SLPs, which after admission was converted as Civil Appeals. In the said decision, the Hon'ble Supreme Court of India has held as follows:
"16. Section 17 confers extraordinary powers on the authorities under which it can dispense with the normal procedure laid down under Section 5-A of the Act in exceptional case of urgency. Such powers cannot be lightly resorted to except in case of real urgency enabling the Government to take immediate possession of the land proposed to be acquired for public purpose. A public purpose, however laudable it may be, by itself is not sufficient to take aid of Section 17 to use this extraordinary power as use of such power deprives a landowner of his right in relation to immovable property to file objections for the proposed acquisition and it also dispenses with the inquiry under Section 5-A of the Act. The authority must have subjective satisfaction of the need for invoking urgency clause under Section 17 keeping in mind the nature of the public purpose, real urgency that the situation demands and the time factor i.e. whether taking possession of the property can wait for a minimum period within which the objections could be received from the landowners and the inquiry under Section 5-A of the Act could be completed. In other words, if power under Section 17 is not exercised, the very purpose for which the land is being acquired urgently would be frustrated or defeated. Normally urgency to acquire a land for public purpose does not arise suddenly or overnight but sometimes such urgency may arise unexpectedly, exceptionally or extraordinarily depending on situations such as due to earthquake, flood or some specific time-bound project where the delay is likely to render the purpose nugatory or infructuous. A citizens property can be acquired in accordance with law but in the absence of real and genuine urgency, it may not be appropriate to deprive an aggrieved party of a fair and just opportunity of putting forth its objections for due consideration of the acquiring authority. While applying the urgency clause, the State should indeed act with due care and responsibility. Invoking urgency clause cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the State administration."
Ultimately, the Civil Appeals were dismissed.
33. In Mahadevappa Lachappa Kinagi and Others v. State of Karnataka and Others [(2008) 12 SCC 418], land acquisition proceedings were initiated by invoking urgency clause under Section 17(1) to acquire 14 acres of lands for flood affected families. The said acquisition proceedings were put to challenge by filing a writ petition and it was dismissed by the learned Single Judge of the High Court of Karnataka, which was confirmed by its Division Bench and hence, challenge was made by filing an appeal and it has been held in the said decision that Section 17(1) of the Act confers extraordinary powers on the authorities under which it can dispense with the normal procedure laid down under Section 5-A of the Act in cases of exceptional urgency and such powers cannot be lightly resorted to except in case of real urgency enabling the Government to take immediate possession of the land proposed to be acquired for public purpose.
34. In Tika Ram and Others v. State of Uttar Pradesh and Others [(2009) 10 SCC 689], the constitutional validity of Sections 17(1), 17(1-A), 17(3-A), 17(4) and the proviso to Section 17(4) of the Land Acquisition Act (as in force in U.P.) along with Section 2 of the Land Acquisition (U.P. Amendment and Validation) Act, 1991 was put to challenge and the High Court of Allahabad had dismissed all the writ petitions and hence, appeals were preferred before the Hon'ble Supreme Court of India and the Hon'ble Supreme Court of India, while dismissing the appeal in connected matters held that the housing development and the planned developments have been held to be matters of great urgency and in the decision reported in (1986) 4 SCC 251 [State of Uttar Pradesh v. Pista Devi], it has been further held that discretion upon the application of law and the power under Section 17 of the Act of doing away with Section 5-A enquiry has to be exercised in a proper manner.
35. In Nand Kishore Gupta & Ors. v. State of U.P and Ors. [AIR 2010 SC 3654], land acquisition proceedings were initiated relating to Yamuna Expressway Project and for that purpose, urgency clause was invoked and number of writ petitions were filed challenging the acquisition proceedings and were dismissed by the High Court of Allahabad holding among other things that the scales of justice tilt towards the right to development of the millions who will be benefited from the road and the development of the area, as against the human rights of 35 petitioners therein, whose main complaint was that they were not heard before the Declaration under Section 6 of the Act. The aggrieved landowners had preferred appeals before the Hon'ble Supreme Court of India and in para 38, it has been held as follows:
"38.This takes us to the next point pertaining to the application of Sections 17(1) and 17(4) of the Act. The learned counsel for the appellants have vociferously urged that there was no necessity whatsoever to apply the urgency clause to these acquisitions and further to avoid the enquiry under Section 5-A of the Act. According to the learned counsel, this dispensation of Section 5-A enquiry was not only unjust, but added to the sufferings of the appellants who had lost their fertile land. It was pointed out that this Project was slumbering since 2001 and it was in order to infuse fictitious urgency that a reference to the Commonwealth Games was made. According to the appellants, the right to be heard was akin to the fundamental rights and its breach has rendered the whole acquisition exercise illegal. A number of authorities were relied upon by the appellants. The respondents, on the other hand, argued that there was material available before the Government justifying the invocation of the urgency clause. The respondents argued that, in fact, the High Court has returned the finding that there was material before the State Government for dispensing with the enquiry under Section 5-A of the Act and that finding was based on the examination by the High Court of the records of the State Government. It was pointed out that going through the ordinary procedure for acquisition of land would have taken years for disposal of the objections while the land was urgently required for public purpose, in this case, the construction of interchange under Yamuna Expressway Project, which was absolutely essential for the purposes of running the highway. It was also pointed out by the respondents that because of the unnecessary litigation in the enquiries, the Project was hopelessly delayed and the costs had gone up from Rs. 1700 crores to a whopping Rs. 9700 crores. It was also further pointed out that any waste of time would have invited the encroachments on the land, which would have added to the further trouble. The enormousness of the Project which required acquisition of 1604 ha of land involving 12,283 farmers, would have taken years if the enquiry under Section 5-A was permitted and thereby, the costs would have still further soared up. A numbers of authorities were relied upon by the parties."
The Hon'ble Supreme Court of India has taken into consideration the findings recorded by the said Court and found that the records were summoned by the High Court and it took meticulous care in examining as to whether there was any material before the State Government to dispense with the enquiry under Section 5A of the Act. The Hon'ble Supreme Court of India, on the basis of the materials placed before it in that case, convinced that there was necessity in the project considering the various reasons like enormousness of the project, likelihood of the encroachments, number of appellants who would have required to be heard and the time taken for that purpose and the fact that the project had lingered already from 2001 till 2008. The decision in Tika Rams case (cited supra) was also relied upon wherein it was held that satisfaction required on the part of Executive in dispensing with the enquiry under Section 5-A is a matter subject to satisfaction and can be assailed only on the ground that there was no sufficient material to dispense with the enquiry or that the order suffered from malice. The Hon'ble Supreme Court of India concurred with the findings of the High Court and dismissed the appeals.
36. In Rajinder Kishan Gupta v. Union of India [AIR 2010 SC 3831], land acquisition proceedings were initiated for the planned development of Delhi and Section 6 Declaration came to be issued on 04.01.1969 and notice under Section 9 of the Act was issued on 26.04.1983 and objections were filed and at that juncture, challenge was made to the acquisition proceedings. The High Court of Delhi has dismissed all the writ petitions and review applications were also dismissed and SLPs were preferred and after admission, it was numbered as Civil Appeals. The Delhi Metro Rail Corporation Limited has filed application for their impleadment and also for modification of the interim order of Status Quo on the ground that land admeasuring 26,187 sq.mtr was acquired urgently for the construction of Chattarpur Metro Station on Qutub Minar -Gurgaon Corridor of Delhi MRTS. The Government of Delhi published a notification dated 02.06.2009 under Section 48 of the Act withdrawing its earlier notification for acquisition of land in question and a fresh notification dated 04.06.2008 was published on 07.06.2009 exercising powers under Section 4 r/w. Section 17(1)(4) of the Act and challenging the legality of the same, writ petition was filed and it was dismissed by the Delhi High Court and therefore, appeal was preferred before the Hon'ble Supreme Court of India. The Hon'ble Supreme Court of India, while dealing with the issues involved in the said case found that there is no serious challenge as to the invocation of urgency clause under the Land Acquisition Act and it is also not in dispute that there is no provision for acquisition of land on urgent basis in the Metro Railways Act, 1978. Maps were also produced before the Hon'ble Supreme Court and ultimately held that the public purpose is in question and there is also an urgency in executing the project before the Common Wealth Games and therefore, dismissed the appeal and upheld the land acquisition proceedings.
37. In Essco Fabs Private Limited and Another v. State of Haryana and Another [(2009) 2 SCC 377], State of Haryana sought to acquire lands for public purpose i.e., for residential, commercial and industrial utilization and originally issued notification during the years 1982 to 1984 and it could not be completed and once again issued a notification for the very same purpose during the year 2001. Challenge was made by the landowners before the High Court of Punjab and Haryana ended in dismissal and they preferred appeals before the Honble Supreme Court of India. The Honble Supreme Court of India held that though there may be urgencies or unforeseen emergencies and even in such cases, the owner of the property should not be deprived of his right to property and possession thereof without following proper procedure of law as contemplated under Section 5A of the Act, unless the urgency or emergency is of such a nature that the Government is convinced that holding of enquiry or hearing of objections may be detrimental to public interest. The Honble Supreme Court of India, on facts, found that the original notification was of the year 1982 and it could not be completed and nearly after 20 years, fresh notification came to be issued and urgency clause was also invoked and there is no justification whatsoever to resort to such a course and hence, allowed the appeals filed by the landowners.
38. In Anand Singh and Another v. State of Uttar Pradesh and Others [(2010) 11 SCC 242], lands were acquired for residential colony by the Gorakhpur Development Authority and challenge made by the landowners before the High Court of Allahabad has ended in dismissal and appeals were preferred before the Honble Supreme Court of India. The Honble Supreme Court of India held that Section 5A confers an important right in favour of a person whose land is sought to be acquired, to file objections which besides being a valuable right also makes the provision for compulsory acquisition just and in conformity with the fundamental principles of natural justice and the power under Section 17 is not a routine power and save circumstances warranting immediate possession it should not be lightly invoked. The more exceptional the power, the more circumspect the Government must be in its exercise and should apply its mind before invoking urgency provision and dispensing with the enquiry contemplated under Section 5A. On facts, the Honble Supreme Court of India observed that 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 5A may not be held and objections of landowners/persons interested may not be considered and therefore, allowed the appeals.
39. In State of West Bengal and Others v. Prafulla Churan Law and Others [(2011) 4 SCC 537], possession of the premises belonging to the respondent was taken by invoking the provisions of the Defence of India Act, 1971 in the year 1944 and 15 years thereafter, the Government of Bengal issued an order dated 13.09.1959 under Section 3(1) of the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 for requisition of the premises and it was put to challenge by filing writ petition and it was allowed by a Single Bench of the Calcutta High Court and thereafter, notification dated 27.08.1990 was issued under Section 4 of the Land Acquisition Act and it was quashed and the Division Bench has also confirmed the same and SLPs filed were also dismissed. Thereafter, the State Government has invoked Section 4(1) r/w. 17(4) of the Act for acquisition of premises for the purpose of providing permanent accommodation to the Unit of Cottage and Small Scale Industries and also for West Bengal Ceramic Development Corporation and once again it was challenged and a Single Bench of the Calcutta High Court dismissed the said writ petition and the appeal preferred before the Division Bench was allowed and aggrieved by the same, the State of West Bengal has preferred an appeal before the Hon'ble Supreme Court of India and it is relevant to extract the following paras of the said decision:
"11. We have considered the respective submissions and carefully perused the record. The applicability of Section 17 of the Act has been considered in several cases, but it is not necessary to burden the judgment with a large number of precedents and it will be sufficient to notice the two judgments which have direct bearing on the issue arising in these appeals. In Narayan Govind Gavate v. State of Maharashtra [(1977) 1 SCC 133] a three-Judge Bench of this Court considered various facets of the issue relating to invoking of urgency clause for the acquisition of land for development and utilisation as a residential-cum-industrial area. The Bombay High Court had allowed the writ petitions filed by the landowners and quashed the invoking of Section 17(4) of the Act.
12. This Court first considered the question of burden of proof in matters in which inquiry under Section 5-A is dispensed with, referred to Phipson on Evidence (11th Edn.), the judgment in Woolmington v. Director of Public Prosecutions4, noticed the provisions of Sections 101, 102, 103, 106 and 114 of the Evidence Act and held: (Narayan Govind Gavate case, SCC pp. 145-46, paras 31-32) 31. 11. Our conclusion therefore is that where certain conditions precedent have to be satisfied before a subordinate authority can pass an order (be it executive or of the character of subordinate legislation), it is not necessary that the satisfaction of those conditions must be recited in the order itself, unless the statute requires it, though, as we have already remarked, it is most desirable that it should be so, for in that case the presumption that the conditions were satisfied would immediately arise and burden would be thrown on the person challenging the fact of satisfaction to show that what is recited is not correct. But even where the recital is not there on the face of the order, the order will not become illegal ab initio and only a further burden is thrown on the authority passing the order to satisfy the court by other means that the conditions precedent were complied with. In the present case this has been done by the filing of an affidavit before us.*
32. It is also clear that, even a technically correct recital in an order or notification stating that the conditions precedent to the exercise of a power have been fulfilled may not debar the court in a given case from considering the question whether, in fact, those conditions have been fulfilled. And, a fortiori, the court may consider and decide whether the authority concerned has applied its mind to really relevant facts of a case with a view to determining that a condition precedent to the exercise of a power has been fulfilled. If it appears, upon an examination of the totality of facts in the case, that the power conferred has been exercised for an extraneous or irrelevant purpose or that the mind has not been applied at all to the real object or purpose of a power, so that the result is that the exercise of power could only serve some other or collateral object, the court will interfere.
13. The Court then considered whether there was any justification for invoking the urgency clause for acquisition of land for residential and industrial purposes and observed: (Narayan Govind Gavate case3, SCC pp. 149-50, paras 40 & 42)
40. In the case before us, the public purpose indicated is the development of an area for industrial and residential purposes. This, in itself, on the face of it, does not call for any such action, barring exceptional circumstances, as to make immediate possession, without holding even a summary enquiry under Section 5-A of the Act, imperative. On the other hand, such schemes generally take sufficient period of time to enable at least summary inquiries under Section 5-A of the Act to be completed without any impediment whatsoever to the execution of the scheme. Therefore, the very statement of the public purpose for which the land was to be acquired indicated the absence of such urgency, on the apparent facts of the case, as to require the elimination of an enquiry under Section 5-A of the Act.
* * *
42. All schemes relating to development of industrial and residential areas must be urgent in the context of the countrys need for increased production and more residential accommodation. Yet, the very nature of such schemes of development does not appear to demand such emergent action as to eliminate summary enquiries under Section 5-A of the Act. There is no indication whatsoever in the affidavit filed on behalf of the State that the mind of the Commissioner was applied at all to the question whether it was a case necessitating the elimination of the enquiry under Section 5-A of the Act. The recitals in the notifications, on the other hand, indicate that elimination of the enquiry under Section 5-A of the Act was treated as an automatic consequence of the opinion formed on other matters. The recital does not say at all that any opinion was formed on the need to dispense with the enquiry under Section 5-A of the Act. It is certainly a case in which the recital was at least defective. The burden, therefore, rested upon the State to remove the defect, if possible, by evidence to show that some exceptional circumstances which necessitated the elimination of an enquiry under Section 5-A of the Act and that the mind of the Commissioner was applied to this essential question. It seems to us that the High Court correctly applied the provisions of Section 106 of the Evidence Act to place the burden upon the State to prove those special circumstances, although it also appears to us that the High Court was not quite correct in stating its view in such a manner as to make it appear that some part of the initial burden of the petitioners under Sections 101 and 102 of the Evidence Act had been displaced by the failure of the State to discharge its duty under Section 106 of the Act. The correct way of putting it would have been to say that the failure of the State to produce the evidence of facts especially within the knowledge of its officials, which rested upon it under Section 106 of the Evidence Act, taken together with the attendant facts and circumstances, including the contents of recitals, had enabled the petitioners to discharge their burden under Sections 101 and 102 of the Evidence Act. Reliance was also placed upon Anand Singh case (cited supra) and the Hon'ble Supreme Court of India found that the State of West Bengal have not explained as to why appropriate steps could not be taken for acquisition proceedings by complying with the requirement of Section 5-A of the Act and upheld the quashment of the acquisition proceedings.
40. In Dev Sharan and Others v. State of Uttar Pradesh and Others [(2011) 4 SCC 769], the scope of public purpose as well as the invocation of urgency clause came up for consideration and it has been held as follows:
"16. The concept of public purpose cannot remain static for all time to come. The concept, even though sought to be defined under Section 3(f) of the Act, is not capable of any precise definition. The said definition, having suffered several amendments, has assumed the character of an inclusive one.
17. It must be accepted that in construing public purpose, a broad and overall view has to be taken and the focus must be on ensuring maximum benefit to the largest number of people. Any attempt by the State to acquire land by promoting a public purpose to benefit a particular group of people or to serve any particular interest at the cost of the interest of a large section of people, especially of the common people, defeats the very concept of public purpose. Even though the concept of public purpose was introduced by preconstitutional legislation, its application must be consistent with the constitutional ethos and especially the chapter under fundamental rights and also the directive principles.
18. In construing the concept of public purpose, the mandate of Article 13 of the Constitution that any pre-constitutional law cannot in any way take away or abridge rights conferred under Part III must be kept in mind. By judicial interpretation the contents of these Part III rights are constantly expanded. The meaning of public purpose in acquisition of land must be judged on the touchstone of this expanded view of Part III rights. The open-ended nature of our Constitution needs a harmonious reconciliation between various competing principles and the overhanging shadows of socio-economic reality in this country.
19. Therefore, the concept of public purpose on this broad horizon must also be read into the provisions of emergency power under Section 17 with the consequential dispensation of right of hearing under Section 5-A of the said Act. The courts must examine these questions very carefully when little Indians lose their small property in the name of mindless acquisition at the instance of the State. If public purpose can be satisfied by not rendering the common man homeless and by exploring other avenues of acquisition, the court, before sanctioning an acquisition, must in exercise of its power of judicial review, focus its attention on the concept of social and economic justice.
The Hon'ble Supreme Court of India in the said decision has also referred to Essco Fabs case and Mukesh Hans case (cited supra) and on facts found that there was a time gap of 11 months and 23 days between the date of publication of Section 4(1) and Section 17(1) notification and Section 6 Declaration and considering the slow pace at which the Government machinery had functioned in processing the acquisition and found there is no urgency for invocation of Section 17(4) of the Act and therefore, quashed the notification.
41. In Darshan Lal Nagpal v. Government of NCT of Delhi and Others [(2012) 2 SCC 327], the Government of NCT of Delhi, by invoking Section 17(1), (4) and dispensing with Section 5A enquiry sought to acquire lands for establishment of electrical substation by Delhi Transco Ltd., and it was challenged by the landowner before the High Court of Delhi and it was dismissed and therefore, civil appeal was filed before the Honble Supreme Court of India. The Honble Supreme Court of India, on the facts of the case, found that the decision was taken during August 2004 and correspondence between various departments were going on upto the year 2009 and the Lieutenant Governor of Delhi accorded its approval on 26.09.2009 and therefore, found that on account of the said time gap/delay, the invocation of urgency clause was not at all justified and allowed the appeal.
42. In Jayabheri Properties Private Limited and Others v. State of Andhra Pradesh and Others [(2010) 5 SCC 590], acquisition proceedings were initiated for the Outer Ring Road project for the twin cities of Hyderabad and Secundarabad and after conducting a study, notification under Section 4(1) was issued on 13.12.2005 and objections were invited and Section 5-A enquiry was held and draft Declaration under Section 6 was published on 29.07.2006. In the meantime, on account of the complaint made on behalf of the persons whose lands sought to be acquired, CBI enquiry was ordered and ultimately, Section 6 Declaration came to be issued and it was put to challenge. It was contended among other things that the alignment of the road had been altered with malafide intention benefiting certain people belonging to ruling party and a contention was also put forward that the revised alignment would convert the straight road into serpentine road with the sole object of ensuring that the outer ring road passed in a manner which boosted the value of the land held by the ruling party leaders, their well-wishers and kith and kin. Challenge made to the acquisition proceedings had ended in failure and the matter ultimately reached the Hon'ble Supreme Court of India by way of Civil Appeals by the landowners. The Hon'ble Supreme Court of India considered the plea with regard to the importance of Section 5-A enquiry as well as the alignment and held as follows:
"38. We have taken pains to set out the fact situation in some detail since a decision in this matter depends on the fact situation leading to the change of alignment of the western sector of the Outer Ring Road Project in the twin cities of Hyderabad and Secunderabad in Andhra Pradesh. From the site plans of the area submitted by the parties, it is clear that both the two alignments touch and disturb existing water bodies, which was the main ground for the change of alignment in the first place. From the reports submitted by the various local authorities, it is, however, clear that in order to proceed according to the first alignment, the respondents would have to cut through a great deal of rock, which is not so as far as the second alignment is concerned.
39. It is no doubt true that in terms of the environmental policies of the State Government, the western sector of the Project has been shown to be a highly ecologically sensitive zone, but we have no choice but to consider the viability of either of the two alignments for the purpose of the connectivity of the outer ring road and while doing so we have to balance the aforesaid factor and also the interest of the private landowners as against the interest of the public. Apart from the above, we have also to take into consideration the factors that the major stretch of the outer ring road is said to have been completed, even in the western sector, and only a small stretch involving the plots of the appellants, is yet to be completed.
....
41. The arguments advanced on behalf of the appellants have their positive value but looking at the problem holistically, we are of the view that their objections to the use of the lands for the purpose of the outer ring road have to give way to the construction of the said road. However, while constructing the portion of the road affecting the plots in question, maximum care has to be taken by the authorities concerned to preserve as far as possible the water bodies over which the road is to be constructed.
...
43. Although, we are not inclined to interfere with the orders impugned in the three appeals or to entertain the two writ petitions, we dispose of the same with a direction to the authorities to take all possible steps to ensure that the water bodies in the area are not unduly affected and are preserved to the maximum extent possible during the construction of the remaining portion of the outer ring road on the western sector."
43. In Laxman Lal (Dead) Through LRs. and Another v. State of Rajasthan and Others [(2013) 3 SCC 764], invocation of urgency clause was resorted to and it was challenged by the landowner and he lost before the Single Bench as well as the Division Bench of the Rajasthan High Court and therefore, appeal was preferred before the Hon'ble Supreme Court of India. The Hon'ble Supreme Court of India while deciding the appeal has considered the importance of right to file objections under Section 5-A and held that it is a substantial right when a person's property is being threatened with acquisition and such right cannot be taken away as if by a side wind and placed reliance upon the decision in Nandeshwar Prasad v. State of U.P. [AIR 1964 SC 1217]. The Hon'ble Supreme Court of India has taken into consideration its earlier decisions with regard to scope, extent and ambit of power of the State Government under Sections 17(1) and (4) of the Land Acquisition Act, 1894 and extracted the legal position in paras 43 to 48 of Anand Singh case (cited supra) and it is relevant to extract the same:
"43. 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.
44. 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.
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 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.
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 a few decisions of this Court. There is a conflict of view in the two decisions of this Court viz. Narayan Govind Gavate [(1977) 1 SCC 133] and Pista Devi [(1986) 4 SCC 251]. In Om Prakash [(1998( 6 SCC 1] this Court held that the 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."
The Hon'ble Supreme Court of India held that dispensation of enquiry under Section 17(4) has to be founded on considerations germane to the purpose and not in a routine manner and unless the circumstances warrant immediate possession, there cannot be any justification in dispensing with an enquiry under Section 5A and being an exceptional power, the Government must be circumspect in exercising power of urgency. The Hon'ble Supreme Court of India in the light of the facts held that there exist a real urgency and allowed the appeal and thereby, quashed the notifications.
44. This Court has also considered the decisions relied on by the learned Advocate General.
45. The learned Advocate General, in his answer to the submissions made by the learned Senior Counsel appearing for the appellants in W.A.No.1548/2012 with regard to delay in execution of the project and there is no imminent necessity to invoke the urgency clause, has invited the attention of this Court to the decision in Deepak Pahwa v. Lt. Governor of Delhi and Others [AIR 1984 SC 1721 = (1984) 4 SCC 308]. The facts of the case would disclose that lands in the village Bijwasan were sought to be acquired for the purpose of construction of a new Transmitting Station for the Delhi Airport and substance of the notification of the public notice under Section 4 was given in the locality on 17.07.1994 and eight years thereafter, notification and declaration were published in the Gazette. There was a delay of 29 days in giving public notice of the substance of the notification in the locality and further that a period of eight years was spent in inter-departmental discussion and therefore, it was pleaded that there was no urgency necessitated to invoke Section 17(4) of the Land Acquisition Act and to dispense with enquiry under Section 5A. The High Court of Delhi dismissed the writ petitions in limine and Special Leave Petitions were preferred against the dismissal of the writ petitions. The Hon'ble Supreme Court of India has considered the plea regarding delay of nearly eight years on account of inter-departmental discussion before invoking Section 17(4) of the Land Acquisition Act and held as follows:
"8. The other ground of attack is that if regard is had to the considerable length of time spent on inter-departmental discussion before the notification under Section 4(1) was published, it would be apparent that there was no justification for invoking the urgency clause under Section 17(4) and dispensing with the enquiry under Section 5-A. We are afraid, we cannot agree with this contention. Very often persons interested in the land proposed to be acquired make various representations to the concerned authorities against the proposed acquisition. This is bound to result in a multiplicity of enquiries, communications and discussions leading invariably to delay in the execution of even urgent projects. Very often the delay makes the problem more and more acute and increases the urgency of the necessity for acquisition. It is, therefore, not possible to agree with the submission that mere pre-notification delay would render the invocation of the urgency provisions void. We however wish to say nothing about post-notification delay. In Jage Ram v. State of Haryana [AIR 1971 SC 1033] this Court pointed out the fact that the State Government or the party concerned was lethargic at an earlier stage is not very relevant for deciding the question whether on the date on which the notification was issued, there was urgency or not. In Kasireddy Papaiah v. Government of Andhra Pradesh [(1975) 1 APLJ 70] it was held, delay on the part of tardy officials to take the further action in the matter of acquisition is not sufficient to nullify the urgency which existed at the time of the issue of the notification and to hold that there was never any urgency. In the result both the submissions of the learned counsel for the petitioners are rejected and the special leave petitions are dismissed."
46. In Chameli Singh and Others v. State of U.P. and Another [(1996) 2 SCC 549], which is an often quoted case, wherein the facts of the case would disclose that lands sought to be acquired for the purpose of providing houses to Scheduled Castes and there was a pre-notification and post-notification delay to finalize and publish the notification and the said delay was taken into consideration by the Government when it invoked the urgency clause and dispensed with Inquiry under Section 5-A. The Hon'ble Supreme Court of India has considered its earlier decisions and held as follows:
"15. The question, therefore, is whether invocation of urgency clause under Section 17(4) dispensing with inquiry under Section 5-A is arbitrary or is unwarranted for providing housing construction for the poor. In Aflatoon v. Lt. Governor of Delhi (SCC at p. 290), a Constitution Bench of this Court had upheld the exercise of the power by the State under Section 17(4) dispensing with the inquiry under Section 5-A for the planned development of Delhi. In Pista Devi case10 this Court while considering the legality of the exercise of the power under Section 17(4) exercised by the State Government dispensing with the inquiry under Section 5-A for acquiring housing accommodation for planned development of Meerut, had held that providing housing accommodation is national urgency of which court should take judicial notice. The pre-notification and post-notification delay caused by the officer concerned does not create a cause to hold that there is no urgency. Housing conditions of Dalits all over the country continue to be miserable even till date and is a fact of which courts are bound to take judicial notice. The ratio of Deepak Pahwa case [(1984) 4 SCC 308] was followed. In that case a three-Judge Bench of this Court had upheld the notification issued under Section 17(4), even though lapse of time of 8 years had occurred due to inter-departmental discussions before receiving the notification. That itself was considered to be a ground to invoke urgency clause. It was further held that delay on the part of the lethargic officials to take further action in the matter of acquisition was not sufficient to nullify the urgency which existed at the time of the issuance of the notification and to hold that there was never any urgency. In Jage Ram v. State of Haryana [(1971) 1 SCC 671] this Court upheld the exercise of the power of urgency under Section 17(4) and had held that the lethargy on the part of the officers at an early stage was not relevant to decide whether on the day of the notification there was urgency or not. Conclusion of the Government that there was urgency, though not conclusive, is entitled to create weight. In Deepak Pahwa case this Court had held that very often persons interested in the land proposed to be acquired may make representations to the authorities concerned against the proposed writ petition that is bound to result in multiplicity of enquiries, communications and discussions leading invariably to delay in the execution of even urgent projects. Very often delay makes the problem more and more acute and increases urgency of the necessity for acquisition. In Rajasthan Housing Board v. Shri Kishan [(1993) 2 SCC 84] (SCC at p. 91), this Court had held that it must be remembered that the satisfaction under Section 17(4) is a subjective one and that so long as there is material upon which Government could have formed the said satisfaction fairly, the Court would not interfere nor would it examine the material as an appellate authority. In State of U.P. v. Keshav Prasad Singh [(1995) 5 SCC 587] (SCC at p. 590), this Court had held that the Government was entitled to exercise the power under Section 17(4) invoking urgency clause and to dispense with inquiry under Section 5-A when the urgency was noticed on the facts available on record. In Narayan Govind Gavate case [(1977) 1 SCC 133] a three-Judge Bench of this Court had held that Section 17(4) cannot be read in isolation from Section 4(1) and Section 5-A of the Act. Although 30 days from the notification under Section 4(1) are given for filing objections under Section 5-A, inquiry thereunder unduly gets prolonged. It is difficult to see why the summary inquiry could not be completed quite expeditiously. Nonetheless, this Court held the existence of prima facie public purpose such as the one present in those cases before the Court could not be successfully challenged at all by the objectors. It further held that it was open to the authority to take summary inquiry under Section 5-A and to complete inquiry very expeditiously. It was emphasised that: (SCC p. 148, para 38) The mind of the officer or authority concerned has to be applied to the question whether there is an urgency of such a nature that even the summary proceedings under Section 5-A of the Act should be eliminated. It is not just the existence of an urgency but the need to dispense with an inquiry under Section 5-A which has to be considered.
16. It would thus be seen that this Court emphasised the holding of an inquiry on the facts peculiar to that case. Very often the officials, due to apathy in implementation of the policy and programmes of the Government, themselves adopt dilatory tactics to create cause for the owner of the land to challenge the validity or legality of the exercise of the power to defeat the urgency existing on the date of taking decision under Section 17(4) to dispense with Section 5-A inquiry.
18. In every acquisition by its very compulsory nature for public purpose, the owner may be deprived of the land, the means of his livelihood. The State exercises its power of eminent domain for public purpose and acquires the land. So long as the exercise of the power is for public purpose, the individuals right of an owner must yield place to the larger public purpose. For compulsory nature of acquisition, sub-section (2) of Section 23 provides payment of solatium to the owner who declines to voluntarily part with the possession of land. Acquisition in accordance with the procedure is a valid exercise of the power. It would not, therefore, amount to deprivation of right to livelihood. Section 23(1) provides compensation for the acquired land at the prices prevailing as on the date of publishing Section 4(1) notification, to be quantified at later stages of proceedings. For dispensation or dislocation, interest is payable under Section 23(1-A) as additional amount and interest under Sections 31 and 28 of the Act to recompensate the loss of right to enjoyment of the property from the date of notification under Section 23(1-A) and from the date of possession till compensation is deposited. It would thus be clear that the plea of deprivation of right to livelihood under Article 21 is unsustainable."
Ultimately, the Hon'ble Supreme Court of India has dismissed the appeals challenging the acquisition.
47. In Ramniklal N.Bhutta and Another v. State of Maharashtra and Others [(1997) 1 SCC 134], the issue arose out of land acquisition proceedings and the Hon'ble Supreme Court of India was conscious of the fact that the country is now launched upon an ambitious programme of all-round economic development to make our economy competitive in the world market and in para 10 observed as follows:
"10. Before parting with this case, we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of all-round economic advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with China economically. We wish to attain the pace of progress achieved by some of the Asian countries, referred to as Asian tigers, e.g., South Korea, Taiwan and Singapore. It is, however, recognised on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernisation. These things very often call for acquisition of land and that too without any delay. It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in courts. These challenges are generally in the shape of writ petitions filed in High Courts. Invariably, stay of acquisition is asked for and in some cases, orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-`-vis the private interest while exercising the power under Article 226 indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings."
and dismissed the appeal filed by the party who challenged the acquisition proceedings.
48. The learned Advocate General in reply to the submissions made by the learned Senior Counsel appearing for the appellants in W.A.No.1548/2012 and the learned Senior Counsel appearing for the writ petitioners in W.P.No.31411/2012 and 8265/2013 and would submit that deviation in alignment was necessitated on account of CMRL becoming a reality and to integrate MRTS, CMRL rail lines and Chennai suburban rail lines at St.Thomas Mount wherein an integrated railway station coming into place, the deviation in alignment has become an absolute necessity and it has been done after due deliberations in number of meetings wherein officers of all concerned departments had participated along with experts and such decision was also forwarded to the Government and it has also approved the same by passing the Government orders. Since the decision with regard to deviation in alignment has been taken after thorough scientific and technical study, it cannot be lightly interfered with and in support of his submissions, placed reliance upon an unreported order dated 12.08.2010 in W.P.No.16459/2010, wherein a Division Bench of this Court has considered the plea made by the officials to locate Adambakkam MRTS station in the area/place originally fixed at Adambakkam as published in the web-site earlier by the Chief Engineer of MRTS instead of setting up a railway station at Vanuvampet which is less than 1km from the next station located at Puzhuthivakkam and the Division Bench of this Court, after taking into consideration the counter affidavit filed by MRTS and the view expressed by the High Level Coordination Committee comprising of various departments of the State Government and the Railways, under the chairmanship of CMDA, has held as follows:
"7. The question is as to whether the Court is justified in entertaining a writ petition in a matter relating to execution of a railway project, which required expertise. The decision was taken by experts to ease the traffic congestions in the city of Chennai. The Railways have finalised the proposal for providing two intermediate stations on both side of Medavakkam Road. This is done with a view to ensure larger benefits to the public using suburban system. The acquisition is stated to be very minimal, as land is necessary only to provide staircases, escalators, lifts, electrical substations and similar other essential requirements.
8. In a matter like this, the role of Courts are very limited. The High Court cannot substitute its opinion. We have no such expertise in matters regarding execution of railway projects. Such matters should be left to the wisdom of the experts in the filed. Therefore, we are not inclined to entertain this writ petition."
In the said decision, this Court had directed the respondents to consider the plight of the house owners and in case there are schemes to provide land or accommodation for such displaced persons, steps should be taken to extend the benefits to those whose houses are sought to be demolished for the project in question. Therefore, it is the submission of the learned Advocate General that number of meetings have been held to sort out the issue regarding deviation in alignment on account of the fact that integrated railway station is coming at St.Thomas Mount wherein rail lines of CMRL, Chennai suburban trains and long distance trains will be in place and therefore, a conscious decision was taken to integrate MRTS rail lines with those rail lines at St.Thomas Mount Railway Station and it was taken purely in public interest as it would reduce traffic congestion in the City of Chennai and also benefits huge number of travelling public and it cannot be faulted with.
49. Mr.R.Thiagarajan, learned Senior Counsel assisted by Mr.V.G.Suresh Kumar, learned counsel appearing for the respondents 3 to 7 in W.P.No.31411/2012 has adopted the arguments of the learned Advocate General and also drawn the attention of this Court to the judgments referred to in para 14 above and would submit that there exists a real necessity for invoking urgency clause and after due consultations and deliberations in the meetings held by the authorities of CMDA wherein officials of all concerned departments with experts had participated, a decision has been taken with regard to deviation in alignment and necessary proposals were also forwarded to the first respondent/Government and after due application of mind, the Government has also accepted the proposal and issued the Government Orders and in the absence of arbitrariness, discrimination and malafides, it cannot be faulted with. As regards the plea taken with regard to deviation in alignment, attention of this Court was drawn to The Southern Railway v. S.Ponnusamy and Others [2007-3-L.W.792], wherein the facts of the said case would disclose that certain lands were sought to be acquired for Southern Railways and enquiry under Section 5A of the Central Act, 1894 was dispensed with by invoking urgency clause and declaration under Section 6 came to be passed on 02.07.1999 and challenging the vires of the same, the respondents therein filed writ petition to quash the notification issued under Sections 4(1) and 6 of the Act. The main contention raised in the said writ petition was that with a malafide intention to safeguard the interest of respondents 4 and 5 in the writ petition, the alignment was altered, which results in the proposed acquisition of the lands belonging to the writ petitioners. Southern Railway has filed its counter affidavit justifying their stand and the writ petition came to be allowed and challenging the same, the Southern Railway preferred an appeal and it is relevant to extract the following paras of the said decision:
"12. The first question is relating to the merits of the case. It is apparent that the learned single Judge has not accepted the contention of the writ petitioner (respondent No.1) to the effect that the decision of the Railway authorities to change the alignment and adopt alignment No.5 for laying the railway line was vitiated by the mala fides. We have also independently gone through the various allegations and counter allegations on such aspect and we see no reason to come to a different conclusion. In other words, it cannot be said that the Railway authorities adopted alignment No.5 for an oblique motive.
13. Once such a conclusion is arrived at, the next question is whether the learned single Judge was justified in interfering with the administrative decision of the Railway authorities to adopt a particular alignment for laying the railway track.
...
18. There are several decisions of the Hon'ble Supreme Court emphasising similar views and it is not necessary to burden this judgment by referring to all such decisions. It can be only reiterated that it is a well settled principle of law that while dealing with such matters, the Courts should not interfere with the conclusion of the authorities based on technical and other assessment merely because in the opinion of the Court, some other course of action would be more beneficial and the Courts should desist from such interference, unless the Courts come to the conclusion that the decision of the administrative authority is perverse and arbitrary and no reasonable man of ordinary prudence could have come to such a conclusion.
19. In the present case, the learned single Judge himself has concluded that alignment No.2 and No.5 were two possible alternatives. The Railway authorities decided to opt for alignment No.5 on the basis of the consideration of relevant aspects and it cannot be said that their conclusion was based on consideration of irrelevant materials or perverse and arbitrary requiring Court's interference. In such view of the matter, the learned single Judge should not have interfered with the discretion exercised by the Railway authorities in deciding to proceed with the construction of the railway line by adopting alignment No.5. Such conclusion of the learned single Judge, is, therefore, liable to be interfered with.
Therefore, the stand taken by the railways is that on account of real emergency, urgency clause was invoked and on account of integration of the railway station at St.Thomas Mount becoming a reality, the change in alignment has become a necessity and except for 500 meters, all works have been completed and because of the pendency of the litigations, it could not be completed.
50. The following principles emerges from the above cited judgments:
(i) Invocation of urgency clause is a matter of subjective satisfaction of the Government and ordinarily it is not open to the court to make a scrutiny of the propriety of that satisfaction on an objective appraisal of facts;
(ii) The satisfaction must be of the appropriate government and that the satisfaction must be, as to the existence of an urgency and the conclusion of the Government that there was urgency, even though cannot be conclusive, but is entitled to great weight.
(iii) Mere allegation that power was exercised mala fide would not be enough and in support of such allegation specific materials should be placed before the court and the burden of establishing mala fides is very heavy on the person who alleges it.
(iv) The limited right given to owners/persons from whom land is sought to be acquired under Section 5-A of the Land Acquisition Act, 1894 to object to the acquisition proceedings is not an empty formality and is a substantive right which cannot be taken away for good and valid reason and within the limitations prescribed under Section 17(4) of the Act and as a corollary, if the Government decides to take away the said minimal right, then its decision to do so must be based on materials on record to support the same and bearing in mind the object of Section 5-A.
(v) Invoking urgency clause cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the State administration
(vi) The delay on the part of tardy officials to take the further action in the matter of acquisition is not sufficient to nullify the urgency which existed at the time of the issue of the notification and to hold that there was never any urgency, unless, of course, it can be established that the acquisition publication is made with an oblique motive.
(vii) Housing development and planned developments have been held to be the matters of great urgency [see State of Uttar Pradesh v. Pista Devi (1986) 4 SCC 251].
(viii) The acquiring authority/Government must by a balancing Act and resort to special power of urgency under Section 17 in the matters of acquisition of lands for public purposes i.e., "planned development of city" or "planned development of residential area" in exceptional situation and must not be as a rule but by way of an exception.
(ix) Public purpose cannot remain static for all time to come and in construing a public purpose, a broad and overall view has to be taken and the focus must be on ensuring maximum benefit to the largest number of people and that cannot result in benefit to particular group of people or to serve any particular interest at the cost of the interest of a large section of people, especially of the common people.
(x) Individuals right of an owner must yield place to the larger public purpose and if the acquisition is in accordance with the procedure established by law, it would not, therefore, amount to deprivation of right and adequate provisions are almost available for payment of compensation, solatium etc.
(xi) Court should not normally interfere with the conclusion of the authorities, based on technical and other parameters, merely because in the opinion of the Court, some other course of action would be more beneficial and the Court should desist from such interference unless the Court come to the conclusion that the decision of the administrative authority is perverse, arbitrary and no reasonable man of ordinary prudence would have come to such a conclusion.
(xii) Every case has to be decided on its own facts.
51. This Court, on an in-depth analysis of the facts and the legal position laid down by the Hon'ble Supreme Court of India in the above cited decisions and on a careful scrutiny of the materials placed before it, is of the considered opinion that invocation of Section 17(2) and dispensing with enquiry under Section 5-A is justified for the following reasons:
51.1. Metropolitan Transport Project (Railways)- MTP(R) in its letter dated 22.08.2008 addressed to CMDA has stated that CMDA had appointed M/s. RITES Limited for preparing the project report on the proposed extension of MRTS line from Velachery to St.Thomas Mount station and the consultants have suggested construction of MRTS station at St.Thomas Mount on the southern side of the existing station (Chennai Beach to Tambaram suburban rail line) and subsequently, during the year 2007-2008, when the Chennai Metro Project was being conceived, it was suggested by CMDA to locate MRTS station on the Southern side and after carrying out survey and other details and joint inspection, it has been suggested to construct MRTS station at the northern side of the existing St.Thomas Mount railway station.
51.2. On 04.09.2008, a special meeting was conducted under the Chairmanship of Vice Chairperson of CMDA wherein officials of Chennai Metro Rail Limited, Southern Railways, MTP(R) and other officials from CMDA had participated and the fact that locating the terminal metro station of corridor-2 viz., St.Thomas Mount Metro Station alongside the St.Thomas Mount RTS station but north of it would necessitate tightening the curvature of the metro alignment before it enters St.Thomas Mount railway station was recognized and CMRL has agreed to take the metro rail corridor-2 at +2 level and locate the station above the MRTS RTS station and it was also felt that for the purpose of facilitating east of interchange of travel by commuters and integration of various amenities it was agreed on all sides that it would be desirable to construct one single station complex incorporating the existing suburban rail system including the provision for stop over by long distance trains in future and MRTS terminal RTS station and the terminal for the corridor-2 of the metro rail and CMRL also came forward to prepare the design for the proposed station complex in consultation with MTP(R). Thereafter, series of objections were raised by the residents of the locality in the form of representations to the railway authorities stating among other things that deviations from the original line would result in demolition of 42 houses and 42 approved sites and it has been done to oblige the encroachers.
51.3. MTP(R) in its letter dated 25.01.2010 addressed to CMDA has stated that number of representations have been received from the Residents' Welfare Associations objecting to the proposed MRTS alignment runs through their area after deviating from highways IRR alignment and informed that Alternative Alignment-IV shown in the plan in brown colour has been chosen by the railways for adoption and therefore, a request has been made to CMDA to concur the above proposal in consultation with CMRL at the earliest and thereafter, to facilitate the State Government to acquire the land accordingly, so that the project can be progressed smoothly. Thereafter, a meeting was held on 11.02.2010 in the office of the Chief Accounts Officer of the Southern Railways wherein apart from railway officials, CMRL officers and scientific and technical consultants had also participated and the discussion revolved around the establishment of an integrated station building in Chennai Metro (CMRL) and MRTS at St.Thomas Mount railway station and CMRL will carryout the construction of the elevated structure beyond the St.Thomas Mount station till the alignment of MRTS and CMRL splits and the target date of completion of St.Thomas Mount station along with the approach work was fixed as March 2012.
51.4. The Chief Engineer (H), Highways Projects, Chennai-15 has written a letter dated 14.05.2010 to CMDA stating among other things that in the earlier meeting decision has been taken as per the requirement of MTP(R), sufficient land has been provided by Highways at the centre from Km 5/0 to 1/0 i.e., from Velachery MRTS station to the deviation point at Adambakkam and as such, IRR work has been carried out along the approved alignment only and no deviation has been done from the approved alignment by the Highways Department. A meeting was convened on 14.05.2010 under the chairmanship of the Additional Chief Secretary to the Government of Tamil Nadu and Vice Chairperson of CMDA to discuss and finalize the amendments to the alignment proposed by Metro Transport Project (Railways) for the reason that owing to certain lateral deviation in the alignment of the composite corridor (accommodating IRR at grade and the elevated MRTS on single pillars along the median of the IRR) from MBL road to Adambakkam at the time of acquiring the land and formation of the IRR by the Department of Highways, acute problems have been encountered for the alignment of the MRTS to stick to the alignment as originally proposed and incorporated in the Master Plan and the said fact has been reported after field verification by MTP(R) and other officials. In the said meeting, among other things in connection with deviation in alignment, an important fact was also taken into consideration i.e., Chennai Metro Rail has become a reality and CMRL is responsible for implementing the project and it has firmed up the alignment and its station integration with the St.Thomas Mount Railway station recently, it is imperative that MRTS alignment should enter at an appropriate angle the St.Thomas Mont sub-urban railway station so as to achieve optimal integration among the Metro Rail, MRTS, Sub-urban rail and long distance (inter-city) rail systems and the said integration would enormously benefit the commuters in the Chennai Metropolitan Area apart from assisting in the reduction of traffic congestion in the metropolis as a whole. The said fact was discussed in detail by the officials as well as the general consultants/architects engaged by CMRL and amendments as proposed by MTP(R) for the stand-alone rail alignment was found acceptable in view of the reasons stated which have been extracted above.
51.5. This Court has perused the minutes of the meeting dated 14.05.2010 and finds that the officials, namely, Chief Engineer (Construction), Southern Railways, Chief General Manager, CMRL and Chief Engineer, Department of Highways, Chief Planner of CMDA, Deputy Chief Engineer MTP(R) and Deputy Planner, CMDA and Senior Planner, CMDA had also participated and thorough discussion on technical and scientific aspects have been done in the said meeting with regard to the proposal mooted out by MTP(R) for the stand alone segment of rail alignment and a decision has been taken to approve the same. In the considered opinion of the Court, after full and detailed discussion on the relevant aspects only such a decision was taken and also to send the necessary proposals to the Government for approving the amendments to the stand-alone rail alignment. It is very pertinent to point out at this juncture that the minutes of the meeting would also disclose that on account of the fact that CMRL has become a reality and to firm up the alignment, the integrated railway station coming at St.Thomas Mount, deviation in alignment was necessitated and it was also felt that integration among rail transit systems (MRTS, CMRL, Chennai sub-urban and long distance (inter-city) trains) would clearly benefit the commuters who are residing in Chennai Metropolitan Area and the same would result in reduction of traffic congestion in the Chennai Metropolis as a whole. Therefore, it cannot be said that no public interest is involved.
51.6. The proposal/decision taken in the above said meeting dated 14.05.2010 was also placed before the 232nd authority meeting held on 28.05.2010 in the premises of CMDA and the said meeting was presided over by the Hon'ble Minister for Information and Chairman, CMDA and in the said meeting, Additional Chief Secretary and Vice Chairperson of CMDA, Principal Secretary of CMDA, Secretary to Housing and Urban Development Department of Government of Tamil Nadu, Chairman, Tamil Nadu Housing Board, Chairman, Tamil Nadu Slum Clearance Board, Secretary to the Government of Tamil Nadu, Transport Department, Managing Director of Chennai Metropolitan Water Supply and Sewerage Board (CMWSSB), Chief Engineer (General), Highways Department and Joint Chief Architect to the Government of Tamil Nadu were also present and it was placed as Agenda No.3.11 and a resolution was also passed approving the amendments to the stand-alone rail alignment.
51.7. Thereafter, CMDA has addressed a letter dated 21.06.2010 to the Principal Secretary to Government, Housing and Urban Development Department first respondent herein, stating among other things that the amendments proposed by MTP(R) for the stand-alone segment of rail alignment was placed before the authority meeting held on 28.05.2010 and the authority had also approved the amendment to the said alignment and also enclosed the resolution of the authority, the map showing the alignment proposed by MTP(R) and the list of properties affected by the proposed amendment and requested the said official to move the Government to approve early the said amendments. The first respondent/Government has taken into consideration the proposal for amendments to stand-alone rail alignment and passed an order dated 29.11.2010 in G.O.Ms.No.274, accepting the said proposal and also accorded administrative sanction for the stand-alone segment rail alignment from the point it branches off from the composite corridor to the St. Thomas Mount suburban rail station. As regards the amendments proposed by MTP(R), the land plan schedule was enclosed in annexure to the said Government Order and CMDA was also directed to approach the Government with the details of the amounts proposed to be incurred for acquisition of additional lands and revised administrative sanction at appropriate time and the said Government Order was also issued with the clearance of the Finance Department. The said Government Order in G.O.Ms.No.274 dated 29.11.2010 has been passed after due and proper application of mind to the proposal mooted out by CMDA and it cannot be said that there was no application of mind on the part of the Government in respect of the amendments to the stand-alone rail segment.
51.8. Thereafter, the Collector of Kancheepuram District has addressed a letter dated 23.12.2010 to the Secretary to the Government, Housing and Urban Development Department, Principal Secretary and Commissioner of Land Administration, suggesting for invocation of the urgency clause and the Principal Secretary and Commissioner of Land Administration, has sent a letter dated 05.01.2011 to the Secretary to the Government, Housing and Urban Development Department stating that Collector of Kancheepuram District suggested for the invocation of urgency clause and it requires the acquisition of 6412 sq.meters of land in Alandur Taluk in S.Nos.10 and 13, Adambakkam Village and therefore, prayed for approval and publication of the same in the Government Gazette as well as in news dailies.
51.9. The Principal Secretary of CMDA has also addressed a letter dated 28.05.2010 to the Secretary to Government, Housing and Urban Development Department stating among other things that approval for amendments to the stand-alone rail alignment has been made to the Government and the orders of the Government are awaited and as the implementation of the project is closely and critically reviewed by the Government, it s proposed to fasten the procedure of acquiring the land and structures required for the project by invoking urgency clause of the Land Acquisition Act and it is similar to the implementation of MRTS Phase-II Extension and hence, it is desirable that same arrangement of acquiring lands and structures followed in that case, is extended to the case of MRTS Phase-II extension project. The first respondent has taken into consideration the said recommendation coupled with G.O.Ms.No.274 dated 29.11.2010 has issued, G.O.Ms.No.3 dated 07.01.2011 and has decided to accept the proposal of CMDA and accorded administrative sanction for land acquisition officer for MRTS Phase-II project to acquire land/structures for the amended stand-alone rail alignment and the additional lands required for Adadmbakkam to Puzhuthivakkam stations. It is further stated in the said Government Order that land acquisition officer is permitted to procure private lands whenever necessary by private negotiations and is also empowered to invoke urgency clause for the land acquisition wherever necessary.
51.10. Thereafter, G.O.Ms.No.34 dated 11.02.2011 came to be passed by the first respondent approving the draft notification under Section 4(1) of the Land Acquisition Act, 1894 and the urgency provision under Section 17(2) of the Act submitted by the District Collector, Kancheepuram District and recommended by the Principal Secretary and Commissioner of Land Administration, Chennai for acquisition of 6412 sq.meters of patta lands in S.No.10 etc., in Adambakkam Village, Alandur Taluk, Kancheepuram District for the formation of railway line from Velachery to St.Thomas Mount for MRTS, Phase -II extension and further directed publication of the same in the extra-ordinary issue of the Tamil Nadu Government Gazette and in two Tamil daily news dailies.
51.11. Subsequently, the Government issued G.O.Ms.No.222 dated 11.10.2012 and approving the draft declaration under Section 6 of the Act. After such approval, it was published in the Tamil Nadu Government Gazette (Extra-Ordinary) dated 11.02.2011 where it has been stated that "...whereas, it has become necessary to acquire the immediate possession of the lands specified in the Schedule below, the Governor of Tamil Nadu hereby directs that the lands be acquired under the provisions of sub-section (1) of the Section 17 of the said Act. Now, therefore, in exercise of the powers conferred by sub-section (2) of Section 4 of the said Act, the Government of Tamil Nadu hereby authorizes the Special Tahsildar (Land Acquisition), MRTS Phase-II Extension at Thirumailai Railway Station Chennai-4, his staff and workmen to exercise the powers conferred by the said sub-sections and under sub-section (4) of Section 17 of the said Act, the Governor of Tamil Nadu hereby directs that in view of the urgency of the case, the provisions of Section 5A of the said Act, shall not apply".
51.12. This Court has perused the files produced before this Court as well as G.O.Ms.No.34 dated 11.02.2011 and it would disclose that urgency provision under Section 17(2) alone was invoked and not Section 17(1) and it may be treated only as a printing mistake that occurred in the Government Gazette notification and it is a curable irregularity and in no way affects the validity of the said notification.
51.13. The counter affidavits filed on behalf of the first respondent/Government and CMDA would clearly disclose that after the proposed alignment and extension of Phase-II which took place in the year 2008 and during last three years between 2008-2011, the authorities have completed the work of 3.7 kms out of 5 kms of MRTS line including acquisition of lands and the remaining work is to be done is only for about 1.3 kms and the area belonging to the appellants/writ petitioners is only to an extent of 500 meters out of the balance of 1.3 kms and the project is to be completed expeditiously for the benefit of the public and therefore, conscious decision was taken to invoke urgency clause. It is to be pointed out at this juncture that the respondents are bound to compensate the petitioners/appellants also.
51.14. The Hon'ble Supreme Court of India in the decision in Deepak Pahwa etc., v. Lt. Governor of Delhi and Others [AIR 1984 SC 1721 (3 Judges)] has held that very often the delay makes the problem more and more acute and increases the urgency of the necessity for acquisition. A Division Bench of this Court in C.Govindarajan v. Government of T.N. [(2007) 5 MLJ 831] considered the similar issue as to the delay in implementation of the project and also invocation of urgency clause and after referring to the decision in Jage Ram and Others v. State of Haryana and Others [(1971) 1 SCC 671], Deepak Pahwa case (cited supra) and Chameli Singh case (cited supra) held that even though it may appear as if there was some delay at different stages, it cannot be said that the subjective satisfaction of the Government for invoking urgency clause was arrived at on the basis of any irrelevant or extraneous consideration and in the considered opinion of this Court, the said decision is squarely applicable to the facts of this case.
51.15. Public purpose also requires invocation of urgency clause and the above cited minutes of the meetings held by CMDA also discloses that in the event of integrated railway station at St.Thomas Mount coming into place, there will be easing of traffic congestion in the Chennai Metropolitan Area and would also benefit the long distance commuters and the Hon'ble Supreme Court of India in the decision in Union of India and Others v. Praveen Gupta and Others [(1997) 9 SCC 78] has considered the invocation of urgency clause for the purpose of relieving the traffic congestion and held that there exist an urgency for dispensing with enquiry under Section 5-A in exercise of powers under Section 17(1) of the Land Acquisition Act. A Division Bench of this Court in a very recent decision in National Highways Authority of India v. Government of Tamil Nadu and Others [2014-2-L.W.73], in which one of us [N.Paul Vasanthakumar, J.] has considered the necessity for construction of Chennai Port Maduravoil Elevated Expressway and held as follows:
"28. The decision to construct an Elevated Expressway is a policy decision taken on public interest, after studying the feasibility report at the instance of the Government of India, Ministry of Shipping, Road Transport and Highways in consultation with NHAI as well as the Government of Tamilnadu and the same was ordered to be implemented by the Government of Tamil Nadu in G.O.Ms.No.199, PWD, dated 22.6.2007 and G.O.Ms.No.63, Highways Department, dated 7.3.2008. The said policy decision was taken bearing in mind the traffic congestion in the Chennai City, free movement of cargos and vehicles to the Chennai Port Trust round the clock by three stages viz., the conception or planning, decision to undertake the project, and the execution of the project.
29. The Hon'ble Supreme Court in the decision reported in (2004) 9 SCC 362 [N.D.Jayal v. Union of India] held that once a considered decision is taken, proper execution of the same should be undertaken expeditiously and the Court has to ensure that the system works in the manner it was envisaged in accordance with law. The freedom of movement without obstruction is for the economic development and for the well-being of the inhabitants. While balancing the environmental issues, sustainable development must be the fundamental concept of Indian law. The said position is reiterated in the decisions reported in (2000) 10 SCC 664 [Narmala Bachao Andolan v. Union if India]; (2004) 12 SCC 118 [M.C.Mehta v. Union of India]; (2006) 3 SCC 434 [Bombay Dyeing & Manufacturing Company Ltd. v. Bombay Environmental Action Group]; (2006) 6 SCC 371 [Karnataka Industrial Areas Development Board v. C.Kenchappa]; and Division Bench Judgments of this Court reported in 2009 (4) LW 459 [S.Venkatesan v. Government of Tamil Nadu]; 2011 WLR 404 [S.Venkatesan v. Government of Tamil Nadu].
30. In the decision reported in (2010) 10 SCC 282 [Nand Kishore Gupta v. State of U.P.] the State Government's decision for the construction of Yamuna Expressway for acquisition of land was upheld, holding that private rights will be affected to some extent when a mega project is implemented and therefore, a holistic view has to be taken no look for an allround development. It was pointed out that the Expressway is a work of immense public importance. The State gains advantages from the construction of Expressway as in the case of General public. Creation of corridor for fast moving traffic resulting into curtailing travelling time as also transport of goods, which speaks in favour of the project being for the public purpose."
In the light of the reasons assigned above, Question No.1 is answered in favour of the respondents.
QUESTION NO.2 51.16. As regards deviation in alignment, it is contended that on account of implementation of the composite corridor, integrated railway station would come into existence at St.Thomas Mount railway station wherein MRTS, CMRL rail lines, Chennai-Beach to Tambram suburban rail lines and long distance (inter-city) rail lines would be at one place and such a decision was taken as per the proposal mooted out by MTP(R) and it cannot be faulted with and in fact, Inner Ring Road has not been modified but alignment has been marginally shifted westwards to an extent of 2 meters to 14 meters just before the stand-alone rail alignment which deflects from the IRR and it is only a small modification to the extent of 500 meters on account of ground realities with the larger objective of providing inter-connectivity among the railway systems to ease out traffic congestion in the Chennai Metropolis area.
51.17. This Court has also perused the Google Earth Plan submitted by the learned Senior Counsel appearing for the appellants, learned Senior Counsel appearing for the respective writ petitioners and also the learned Senior Counsel appearing for the railways and the learned Advocate General. A careful scrutiny of the said plans would disclose that the original route/alignment was shown in blue ink colour and it cut across the integrated railway station coming at St.Thomas Mount and the deviation in alignment in red line and it enters the proposed railway station at appropriate angle and therefore, the decision with regard to deviation in alignment cannot be faulted with and it is also to be pointed out at this juncture that the said decision was taken on the basis of the opinion given by the experts in that field and it was also discussed threadbare in the meetings convened by CMDA, wherein officials from the concerned departments as well as experts had participated.
51.18. It is submitted by the learned Senior Counsel appearing for the appellants/writ petitioners that deviation in alignment has been done with an oblique motive and in this regard, complaint has been sent to Central Vigilance Commission and the Central Vigilance Cell has in-turn forwarded the same to the Central Vigilance Officer, Railway Board, Delhi for necessary action. It is brought to the knowledge of the learned Senior Counsel appearing for MRTS that the said complaint was enquired into and found to be of without substance and it was closed and in fact writ petition in W.P.No.31388/2012 filed in this regard, was dismissed as withdrawn. It is a well settled position of law that malafides alleged, have to be strictly proved and in the case on hand, the allegations of malafides on the ground of some of the officials acting for extraneous considerations have been enquired into and the said complaint was also closed and therefore, it cannot be said that the above said decision was actuated by malafides.
51.19. In the present case, as already stated above, the proposal for deviation in alignment was mooted out by MTP(R) and CMDA, in its meetings dated 14.05.2010 and 28.05.2010, had considered the said issue and made threadbare analysis with the participation of the concerned officials including experts and submitted the proposal to the Government, who after due application of mind to the entire materials, has passed the Government Orders and therefore, it cannot be said that without proper application of mind, deviation in alignment was mooted out. The decision was also taken in public interest by taking into consideration ground realities and facts and circumstances and expert opinion in this regard cannot be lightly interfered with.
Therefore, Question No.2 is answered in favour of the respondents.
51.20. The learned Judge, in the impugned judgment in W.P.No.4794/2011, has considered the factual aspects and legal position and rightly arrived at a decision to dismiss the writ petition. This Court has independently applied its mind to the entire materials and carefully scrutinized it and also gone through the files and is of the considered opinion that there is no error apparent or infirmity in the reasons assigned in the order dismissing the above said writ petition. This Court has also carefully considered the submissions made by the learned Senior Counsel appearing for the writ petitioners in W.P.Nos.31411/2012 and 8265/2013 and the respective learned counsel appearing for the writ petitioners in W.P.Nos.68/2011, 3383/2013 and 9437/2013 and the points urged are similar to the grounds raised in W.A.No.1548/2012 and finds no merit in these writ petitions.
52. In the result,
(a) W.A.No.1548/2013 is dismissed, confirming the order dated 03.07.2012 made in W.P.No.4794/2011; No costs.
(b) W.P.Nos.68/2011, 31411/2012, 3383/2013, 8265/2013 and 9437/2013 are dismissed. However, in the circumstances of the case, there shall be no order as to costs. Consequently, the connected miscellaneous petitions are closed ;
(c) The respondents are directed to take necessary and appropriate steps to disburse the compensation and other statutory entitlements to the landowners as expeditiously as possible.
53. Before parting with this case, it is to be pointed out that MRTS railway stations from Chindatripet to Velachery have been constructed by incurring enormous expenditure with huge space meant for commercial purpose, but has not been put to such a use. It is also to be pointed out that there is no proper upkeep and maintenance of MRTS railway stations and the concerned authorities, namely, Southern Railways and MRTS shall take emergent steps to maintain the railway stations cleanly, properly and user friendly for the benefit of travelling public and this Court is very much optimistic that necessary steps will be taken in that regard by the authorities.
[N.P.V., J.] [M.S.N., J.] 09.04.2014 Index : Yes / No Internet : Yes / No jvm To
1.The Secretary, Housing & Urban Development (UD3(2)) Department, Government of Tamil Nadu, Fort St.George, Chennai-600 009.
2.The Member Secretary, Chennai Metropolitan Development Authority (CMDA), Thalamuthu Natarajan Buildings, No.1, Gandhi Irwin Road, Egmore, Chennai-600 008.
3.The Metropolitan Transport Project (Railways), Chennai Periyar E.V.R.High Road, Chennai-600 008.
4.The District Collector, Collectorate, Kancheepuram.
5.The Special Tahsildar (Land Acquisition) Mass Rapid Transport System, Phase-II Extension, Thirumayilai Railway Station, Mylapore, Chennai-600 004.
6.The Chairman and Managing Director, M/s.RITES Limited, SCOPE Minar, Lakshmi Nagar, Delhi-110 092.
7.The General Manager, Southern Railway, Park Town, Chennai-600 003.
8.The Central Vigilance Commission, Satarkta Bhavan, G.P.O. Complex, Block-A, NIA, New Delhi-110 023.
9.The Chief Engineer (H), Highways Projects, Chennai-600 015.
N.PAUL VASANTHAKUMAR, J., AND M.SATHYANARAYANAN, J.
jvm Common Judgment in W.A.No.1548/2012 and W.P.Nos.68/2011, 31411/2012, 3383/2013, 8265/2013 and 9437/2013 09.04.2014