D. Murugesan, J.@mdashThe writ appeals, at the instance of the Corporation of Chennai as well as the official respondents of the State, arise out of the common order passed by the learned single Judge dated 5.5.2009 allowing Writ Petition Nos. 26112 of 2008 etc., and the writ petitions are at the instance of the land owners/persons interested in the lands sought to be acquired. As the grounds of challenge to the land acquisition proceedings in both the writ appeals and writ petitions are common, they are disposed of by this judgment.
2. All the above writ appeals and writ petitions concern with the notification made u/s 4(1) read with Section 17(2) of the Land Acquisition Act, 1894 in G.O.Ms. No. 172, Municipal Administration and Water Supply (MC1) Department dated 9.9.2008 and published in the Tamil Nadu Government Gazette Extraordinary Part II on the same date as well as the declaration made u/s 6 of the Land Acquisition Act, 1894 in G.O.Ms. No. 184, Municipal Administration and Water Supply (MC1) Department dated 24.9.08 and published in the Tamil Nadu Government Gazette Extraordinary Part II on the same date.
3. In order to decongest and regulate the heavy flow of traffic, the Government through the Corporation of Chennai are implementing schemes for construction of flyovers in the roads which are prone to heavy traffic. As a part of such initiative, studies were conducted and a proposal was mooted for construction of a flyover at the junction of Pasumpon Muthuramalinga Thevar Salai and Turn Bulls Road in the year 1997. The said proposal could not be implemented for certain reasons. Over the period, a steady increase in volume of traffic during the peak hours was noticed at Cenotaph Road followed by Kotturpuram Road, which is also known as Turn Bulls Road. Therefore, the services of the Division of Traffic Engineering of the College of Engineering, Anna University and M/s L&T Ramboll were sought. Study reports were submitted to the Government accordingly. The earlier proposal to construct a flyover at the junction of Pasumpon Muthuramalinga Thevar Salai and Turn Bulls Road was also studied by Anna University as well as by M/s L&T Ramboll and the report suggested for construction of a flyover at the junction of Cenotaph Road and Turn Bulls Road. The road on which the flyover was proposed to be constructed belongs to the Corporation. While such flyover is constructed, the Corporation is also obligated to provide parallel service lanes on both sides of the road for free flow of traffic as well as to provide access to the adjacent residents. In pursuance of the report, the Government decided to construct a flyover along Cenotaph Road and Turn Bulls Road. In order to provide service lanes, certain lands were sought to be acquired urgently. Hence the Government issued notification u/s 4(1) of the Land Acquisition Act, 1894 (for short, "the Act") for acquisition of the lands. While doing so, the Government decided to invoke the urgency clause and accordingly, issued the notification u/s 17(2) of the Act for acquisition of an extent of 18,225 sq.ft., or 7 grounds 1425 sq.ft., of land in as many as 25 survey numbers. By the same notification, the Government also notified the dispensation of enquiry u/s 5-A of the Act in exercise of the power u/s 17(4) of the Act. The said notifications came to be challenged by the writ petitioners before the learned single Judge who, by order dated 5.5.2009, quashed the notifications on the ground that there was no justification for invoking the urgency clause. Aggrieved by the said order, the Corporation of Chennai and the Government have preferred these writ appeals. Some of the writ petitions which were pending before the learned single Judge are also tagged along with the appeals at the request of all the parties concerned.
4. We heard Mr. P.S. Raman, learned Advocate General with Mr. V. Bharathidasan, learned standing Counsel for the Corporation of Chennai, Mr. J. Raja Kalifullah, learned Government Pleader for the official respondents of the State, Mr. V.T. Gopalan, learned senior Counsel with K.Abudukumar Rajarathinam, Mr. S. Ashok Kumar, Mr. K. Sanjeev Kumar, Mr. Srinivasan and Mr. T. Mohan for the respective land owners/persons interested.
5. The bone of contention in the challenge to the notifications is that inasmuch as the proposal for construction of the flyover was made in the year 1997 and there being no progress in the said proposal till 2008, there is absolutely no reason to dispense with the valuable rights of the land owners to make their objections in the enquiry u/s 5-A of the Act.
6. Mr. V.T. Gopalan, learned senior Counsel for the land owners would submit that the right u/s 5-A of the Act to make objections is a valuable right and the same cannot be dispensed with except for valid reasons. He would further submit that there is total non-application of mind on the part of the appropriate Government in invoking the urgency clause u/s 17 of the Act. Inasmuch as the proposal mooted in the year 1997 was not given effect to, the same would only indicate that there was no urgency for the Government to invoke the urgency clause. In such event, the notifications are bad. In support of the said contention, the learned senior Counsel would heavily rely upon the judgments of the Supreme Court in Essco Fabs Private Limited and Anr. v. State of Haryana and Anr. 2008 (14) Scale 495 and in
7. Mr. K. Abudukumar Rajarathinam, learned Counsel appearing for some land owners would further add that inasmuch as the notifications were issued u/s 17(2) of the Act, which relates to the invocation of emergency provision owing to sudden change in the channel of any navigable river or other unforeseen emergency, the present notifications are bad, as the urgency clause has been invoked for the purpose of formation of service lanes. In the given case, if at all the Government was satisfied to invoke the urgency clause, they ought to have invoked the provisions of Section 17(1) of the Act alone. He would also submit that there should be two separate notifications, one u/s 17(1) and another u/s 17(4) of the Act and there cannot be simultaneous notifications. Hence the notifications are liable to be quashed.
8. The other respective counsels also adopted the arguments of Mr. V.T. Gopalan and Mr. K. Abudukumar Rajarathinam.
9. Mr. P.S. Raman, learned Advocate General would submit that the satisfaction of the Government to invoke the urgency clause is spelt out not only in the notifications, but also is borne out by records. Though the proposal to construct the flyover was mooted in the year 1998-99, it did not materialise and only after study of traffic flow on the roads in question, such proposal was again mooted in the year 2008, resulting in the Government invoking the urgency clause. As the flyover is constructed above the road that vests in the Corporation, the acquisition of land for the formation of service lanes was necessitated. For a distance of a little over half a kilometre of the constructed bridge, it became necessary to provide the parallel service lanes on both the sides of the road. For the said purpose, approximately 18,225 sq.ft., of land alone is sought to be acquired and unless service lanes are provided immediately, even if the construction of flyover is completed, it would not serve the purpose. Laying of parallel service lanes cannot be dispensed with, as it is absolutely necessary to the adjoining neighbours including the persons objecting to the acquisition apart from free flow of regular traffic. Inasmuch as the records also disclose the reason for invoking the urgency clause, the notifications cannot be questioned on the ground of want of satisfaction by the Government. He would further submit that in any case, the Court can take judicial notice of nature of scheme for invocation of the urgency clause. The scheme being for construction of flyover to decongest the heavy traffic, the construction must be completed without any delay, as otherwise such delay would cause inconvenience to the road users. He would also submit that only the compound walls, a toilet, pump rooms, generator rooms and in one case, an open dining set up by the owner are to be demolished. Apart from this, in one case, a portion of the shop of the building constructed without permission and unauthorised is to be demolished. He would therefore submit that the Government was within their powers to invoke urgency clause on due satisfaction which is borne out by records.
10. We have carefully considered the rival contentions. As far as the requirement of the land for public purpose is concerned, the appropriate Government is the best judge. The power of eminent domain to aquire any land under the provisions of the Act is by now well recognised. Equally relevant is the right of the owners of the land by virtue of Article 300-A of the Constitution of India, that they shall not be deprived of their land except by the authoriy of law such as the procedures contemplated under the Act. One of the valuable rights for the owners is to raise objections to the notification issued u/s 4(1) of the Act opposing the acquisition on justifiable grounds. It is a general rule that before a declaration under Section6 is made, enquiry u/s 5-A must be held. In
11. However, the said right to raise objections u/s 5-A is not absolute in all cases, as there are certain exceptions. The exception to the provision of Section 5-A is Section 17 of the Act. For better understanding, the relevant provisions of Section 17 of the Act can be extracted hereunder:
17. Special powers in cases of urgency.- (1) In cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, Sub-section (1), take possession of any land needed for public purpose. Such land shall thereupon vest absolutely in the Government free from all encumbrances.
(2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or ghat station, or of providing convenient connection with or access to any such station, or the appropriate Government considers it necessary to acquire the immediate possession of any land for the purpose of maintaining any structure or system pertaining to irrigation, water supply, drainage, road communication or electricity, the Collector may, immediately after the publication of the notice mentioned in Sub-section (1) and with the previous sanction of the appropriate Government, enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances:
Provided that the Collector shall not take possession of any building or part of a building under this Sub-section without giving to the occupier thereof at least forty-eight hours'' notice of his intention so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience.
(3)....
(3-A)....
(3-B)....
(4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of Sub-section (1) or Sub-section (2) are applicable, the appropriate Government may direct that the provisions of Section 5-A shall not apply, and, if it does so direct, a declaration may be made u/s 6 in respect of the land at any time after the date of the publication of the notification u/s 4, Sub-section (1).
The object of Section 17 appears to be that when the Government exercises the urgency power either u/s 17(1) or u/s 17(2), they form the opinion that the land is needed for public purpose and possession of the land must be taken immediately. In exercise of power u/s 17(1), in case of urgency, whenever the appropriate Government so directs, the Collector may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, Sub-section (1), take possession of any land needed for public purpose. Such land shall thereupon vest absolutely in the Government free from all encumbrances. Section 17(2) relates to the power to invoke urgency clause owing to any sudden change in the channel of any navigable river or other unforeseen emergency, etc. By virtue of Section 17(4), enquiry u/s 5-A may be dispensed with, if in the opinion of the appropriate Government the provisions of Sub-section (1) or Sub-section (2) are applicable, to such acquisition proceedings. The power of the Government for invoking the urgency clause u/s 17 has been upheld by the Supreme Court in the judgment in
12. The power under Sub-sections (1) & (2) of Section 17 relates to the directions by the appropriate Government to the Collectors to take possession of the land. If the Government invokes the provisions of either Section 17(1) or Section 17(2) and in the opinion the enquiry u/s 5-A should be dispensed with, it can do so u/s 17(4). A combined reading of Section 17(1), (2) & (4) would show that the Government should only satisfy itself as to the invocation of the provisions.
13. While dealing with the power of the Government to invoke the urgency clause u/s 17(1) or unforeseen emergency u/s 17(2) and the invocation of power u/s 17(4) to dispense with the enquiry u/s 5-A of the Act, the Supreme Court in
It will be seen that Section 17(1) gives power to the Government to direct the Collector, though no award has been made u/s 11, to take possession of any waste or arable land needed for public purpose and such land thereupon vests absolutely in the Government free from all encumbrances. If action is taken u/s 17(1), taking possession and vesting which are provided in Section 16 after the award u/s 11 are accelerated and can take place fifteen days after the publication of the notice u/s 9. Then comes Section 17(4) which provides that in case of any land to which the provisions of Sub-section (1) are applicable, the Government may direct that the provisions of Section 5-A shall not apply and if it does so direct, a declaration may be made u/s 6 in respect of the land at any time after the publication of the notification u/s 4(1). It will be seen that it is not necessary even where the Government makes a direction u/s 17(1) that it should also make a direction u/s 17(4). If the Government makes a direction only u/s 17(1) the procedure u/s 5-A would still have to be followed before a notification under Section6 is issued, though after that procedure has been followed and a notification u/s 6 is issued the Collector gets the power to take possession of the land after the notice u/s 9 without waiting for the award and on such taking possession the land shall vest absolutely in Government free from all encumbrances. It is only when the Government also makes a declaration u/s 17(4) that it becomes unnecessary to take action u/s 5-A and make a report thereunder. It may be that generally where an order is made u/s 17(1), an order u/s 17(4) is also passed; but in law it is not necessary that this should be so. It will also be seen that under the Land Acquisition Act an order u/s 17(1) or Section 17(4) can only be passed with respect to waste or arable land and it cannot be passed with respect to land which is not waste or arable and on which buildings stand.
14. Placing reliance on the above judgment, the Supreme Court in Essco Fabs Private Limited v. State of Haryana 2008 (14) Scale 495 has observed in paragraph-33 as follows:
From the above observations, it is clear that even in cases falling under or covered by Sub-sections (1) and (2) of Section 17 of the Act and the Government intends to acquire land in cases of ''urgency'' or ''unforeseen emergency'', it is still required to follow procedure u/s 5-A of the Act before issuance of final notification u/s 6 of the Act. It is only when the Government also makes a declaration under Sub-section (4) of Section 17 that it becomes unnecessary to take recourse to procedure u/s 5-A of the Act.
15. A similar question came up for consideration before the Supreme Court in
A careful perusal of this provision which is an exception to the normal mode of acquisition contemplated under the Act shows 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 5A inquiry. It requires an opinion to be formed by the concerned government that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with 5A inquiry which indicates that the Legislature intended that the appropriate government to apply its mind before dispensing with 5A inquiry. It also indicates the mere existence of an urgency u/s 17(1) or unforeseen emergency u/s 17(2) would not by themselves be sufficient for dispensing with 5A 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 Section 17(1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically 5A inquiry will be dispensed with. But then that is not language of the Section which in our opinion requires the appropriate Government to further consider the need for dispensing with 5A 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 5A inquiry does not mean that in every case when there is an urgency contemplated u/s 17(1) and unforeseen emergency contemplated u/s 17(2) exists that by itself would not contain the need for dispensing with 5A inquiry. It is possible in a given case the urgency noticed by the appropriate Government u/s 17(1) or the unforeseen emergency u/s 17(2) itself may be of such degree that it could require the appropriate Government on that very basis to dispense with the inquiry u/s 5A but then there is a need for application of mind by the appropriate Government that such an urgency for dispensation of the 5A inquiry is inherent in the two types of urgencies contemplated u/s 17(1) and (2) of the Act.
In fact the above provision also has been relied upon by the Supreme Court in Essco Fabs case (supra) and ultimately, in paragraph-45, the Supreme Court had observed as follows:
In our opinion, therefore, the contention of learned Counsel for the respondent authorities is not well founded and cannot be upheld that once a case is covered by Sub-section (1) or (2) of Section 17 of the Act, Sub-section (4) of Section 17 would necessarily apply and there is no question of holding inquiry or hearing objections u/s 5A of the Act. Acceptance of such contention or upholding of this argument will make Sub-section (4) of Section 17 totally otiose, redundant and nugatory.
16. A combined reading of the above three judgments would show that whenever the Government invokes urgency clause u/s 17(1) or unforeseen emergency u/s 17(2), it can dispense with the enquiry u/s 5-A of the Act by specifically invoking the provisions of Section 17(4). The only requirement for the Government is that they should apply their mind and satisfy themselves for the invocation of the urgency or unforeseen emergency, as the case may be. This satisfaction need not necessarily be indicated in the notification as such, as has been held by the Supreme Court in Nandeshwar Prasad case (supra), as it would be sufficient if the records borne out such satisfaction.
17. The law on the discretion of the Government to dispense with the enquiry u/s 5-A being statutory in nature, it should be exercised on reasonable grounds and cannot lapse into arbitrariness or caprice. The State authorities must have specific satisfaction based on the relevant material, rule and genuine urgency existed and that any invocation of the urgency clause would not defeat the very purpose of the acquisition. The Court is bound to satisfy itself as to whether the discretion exercised by the Government could be tested on reasonableness and on application of mind to the situation that has warranted for invocation of the clause.
18. How far the power of judicial review could be exercised is yet another question to be considered. As has been held by the Supreme Court in the judgment in
19. This takes us to the next question as to whether the Government had sufficient reason for dispensing with the enquiry u/s 5-A in the given facts of the case. The learned Counsel appearing for the Corporation of Chennai produced the relevant files and we have perused the same. In terms of Sub-section (3-A) of Section 17 of the Act, the Collector shall, without prejudice to the provisions of Sub-section 3, tender payment of 80% of compensation for such land as estimated by him to the persons interested entitled thereto before taking possession. By virtue of the above provision, a proposal emanated from the District Collector to the Government for sanction of payment of 80% of compensation in a sum of Rs. 9,70,73,400/- for the total area of 18,225 sq.ft. of land to be acquired. That was processed and inspection of the land in question was carried on by the Tahsildar concerned and in his proceedings dated 22.4.2008, he also recommended for the said sanction of the amount. Thereafter, the Commissioner, Corporation of Chennai also sought permission from the District Collector in his communication dated 22.4.2008 for acquiring the land. Considering all the above aspects, the Government in G.O.Ms. No. 120 dated 26.6.2008 accorded approval apparently keeping in mind the urgency clause. In all these correspondences, not only the Tahsildar concerned, but also the Commissioner as well as the Government had referred to only the provisions of urgency clause indicating the requirement to invoke the said provision. Finally a note was placed for invocation of the urgency clause. From the note file, it is seen that though some attempts were made to negotiate with the owners, it failed, thereby necessitating the invocation of the urgency clause. The learned single Judge, of course, by placing reliance on certain portions at pages 21, 59, 91 & 285 in File No. C. No. 25235/MC!/2008 and pages 7, 9, 23 & 155 in File No. 15820/MC1/2008, has held that there was no indication of application of mind by the Government. In our considered view, the said reason cannot be accepted. In order to find out the satisfaction of the appropriate Government to invoke the urgency clause, the entire file must be taken into consideration. As we have already noted, right from the proceedings dated 30.4.2008 of the Special Commissioner and Commissioner of Land Administration, it is seen that the Government had applied its mind to invoke the urgency clause and therefore only recommended the sanction of 80% of the compensation amount which is to be statutorily tendered while invoking the urgency clause and the subsequent proceedings also indicate that the Government by invoking the urgency clause not only sanctioned the compensation amount, but also sanctioned the very acquisition proposal as such. The permission was accorded by the Governor keeping in mind the above background of the proceedings. If the entire proceedings are read as a whole, the Court has to necessarily accept the stand of the Government that there was a proper application of mind for invoking the urgency clause. As we have already pointed out that such exercise of discretionary power could be tested only on reasonableness or on mala fide grounds. In this case, the question of mala fide is not put in issue. The only ground left open is the reasonableness. In fact, the appropriate Government need not pass a reasoned order to its satisfaction, as such subjective satisfaction could be culled out from the records, as has been held by the Supreme Court in
20. We may also point out that the Government of Tamil Nadu had brought in an amendment known as "Land Acquisition (Tamil Nadu Amendment) Act, 1948" inserting explanation to Sub-section (1) of Section 17 of the Act as well as amendment to Sub-section (2) of Section 17, which reads as follows:
In Section 17 of the Land Acquisition Act, 1894-
(a) to Sub-section (1), the following explanation shall be added, namely:
Explanation.- This Sub-section shall apply to any waste or arable land, notwithstanding the existence thereon of scattered trees or temporary structures, such as, huts, pandals or sheds.
(b) in the first paragraph of Sub-section (2)-
(i) before the word "whenever" at the commencement, the following shall be inserted, namely:
In the following cases, that is to say-;
(ii) the portion beginning with the word "whenever" and ending with the words "access to any such station" shall be lettered as clause (a) and after the clause as so lettered, the following clause shall be inserted, namely:
(b) "Whenever in the opinion of the Collector, it becomes necessary to acquire the immediate possession of any land"-
(i) for the purpose of any library or educational institution, or
(ii) for the construction, extension or improvement of-
(A) any building or other structure in any village for the common use of the inhabitants of such village, or
(B) any godown for any society registered or deemed to be registered under the Madras Co-operative Societies Act, 1932 (Madras Act VI of 1932), or
(C) any dwelling house for the poor, or
(D) any irrigation tank, irrigation or drainage channel or any well, or
(E) any road.
By that provision, the power conferred u/s 17(1) of the Act for the appropriate Government to direct the Collector to take possession shall apply to waste or arable land. An argument was advanced by Mr. Abudukumar Rajarathinam that the Government cannot invoke the emergency provision of Section 17(2) in respect of the land in question, as the land is not waste or arable land and that provision relates to only invocation of urgency clause owing to any sudden change in the channel of any navigable river or other unforeseen emergency. In our opinion, the said argument is totally misconceived. Clause (b) of Sub-section (2) of Section 17 inserted by State Amendment Act to the Central Act empowers the appropriate Government to take possession of the land among other purposes for the construction of road also. Hence the invocation of the provisions of Section 17(2) of the Act should be read in consonance with the Tamil Nadu Amendment Act, which empowers the appropriate Government to invoke the said power u/s 17(2)(b) of the Act. In the instant case, the impugned notification is issued u/s 4(1) read with Section 17(2) of the Act and in Section 17(2), the acquisition is not restricted only to waste or arable land.
21. It was also argued that the proposal for construction of flyover was made in the year 1997 and that the urgency clause has been invoked only in the year 2008. We may point out that the delay in the invocation of emergency provision by itself would not vitiate the entire acquisition proceedings. On the given facts and circumstances of the case, though a proposal was mooted in the year 1997, the same did not materialise. Only after a detailed study was conducted sometime during the year 2008, it came to be known to the Government as well as the Corporation of Chenai as to the heavy increase of traffic on the roads in question. Hence reports were called for from Anna University and M/s L&T Ramboll and on the basis of the reports, the Corporation of Chennai decided to construct a flyover on its own road and only for the purpose of laying parallel service lanes, had approached the Government for acquisition. Reports were placed before the Government during the year 2008 and on satisfaction the Government approved the proposal by sanctioning 80% of the amount to be tendered initially and thereafter, decided to invoke the emergency provisions by dispensing with 5-A enquiry. Even otherwise, if there is any delay in the initiation of proceedings, the period to notify the acquisition should be considered only after the reports of Anna University and M/s L&T Ramboll were received. See the judgment in
22. That apart, the discretionary power to invoke the urgency clause can be also covered from the nature of the scheme as such. It is nobody''s case that the roads in question namely, Cenotaph Road and Turn Bulls Road are not congested and are available for free flow of traffic at any point of time. A detailed study by L&T Ramboll and Anna University shows that over the years, traffic on these roads has increased manifold necessitating construction of the flyover for the benefit of road users. The Corporation is also obligated to provide the service lanes and for this purpose, it has to acquire the land. The construction of flyover cannot be delayed at any cost having regard to the heavy flow of traffic in the area. The Court can therefore take judicial note of the fact that by the very nature of the scheme, the appropriate Government would be justified to invoke the urgency clause. That apart, as has been rightly submitted by Mr. P.S. Raman, in a situation like this, the owners of the land can be appropriately compensated and on that ground the entire acquisition could not be set aside. In this context, we may also refer to the judgment of the Supreme Court in
10. Before parting with this case, we think it necessary to make a few observations relevant to land acquisition proceedings. Our country has 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-a-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.
23. One more argument advanced is that there should be two separate notifications u/s 17(2) and Section 17(4) of the Act. A careful reading of both the provisions does not indicate of any such requirement. In fact all that the appropriate Government to satisfy is the application of mind and once it is satisfied, both the notifications can be made simultaneously. The Supreme Court in the judgment in Essco Fabs Private Limited case (supra) has observed that it may be held generally where an order is made u/s 17(1), an order u/s 17(4) is also passed. The Supreme Court did not lay down the law that both the notifications should be made separately and cannot be made simultaneously.
24. We may also add that the acquisition of land is only to an extent of 18,225 sq.ft., and by such acquisition, only the compound walls of the building belonging to the land owners, two pump rooms, one generator room and open ground floor dining of a hotel and one sweet shop are alone to be demolished in addition to one ground floor shop building which has been constructed unauthorisedly to an extent of 1.50 sq.mts., inasmuch as the service lanes are absolutely necessary for the free flow of traffic. Once the flyover is constructed, these parallel service lanes will be indispensable for the neighbours for their access to the premises and they cannot have any grievance over the invocation of the urgency clause and in that context, the dispensation of the enquiry u/s 5-A cannot be found fault with.
25. One more argument advanced by Mr. V.T. Gopalan, learned senior Counsel is as to the non-compliance of the time limit prescribed in the PERT Chart. In our opinion, the Government Order issued in G.O.Ms. No. 1895, Revenue dated 27.8.90 is more or less guidelines and by any stretch of imagination, it cannot be treated to be as one for strict compliance. The completion of procedures depends upon various factors and solely on the ground of violation of those guidelines, should the Court frustrate the very purpose of the acquisition by setting aside the notifications? In our opinion, even if there are certain non-compliance of the guidelines, the Court must desist from interfering with the acquisition proceedings which are initiated for a definite public purpose and consequently it must necessarily uphold the notifications.
26. For all the above reasons, we are of the opinion that the judgment under appeals cannot be sustained and the appeals preferred by the Corporation and the State should be allowed. As a necessary corollary, all the writ petitions are liable to be dismissed. Accordingly, the writ appeals are allowed and the writ petitions are dismissed. Consequently, all the miscellaneous petitions in the writ appeals and writ petitions are closed. No costs.
