Shri Shankar Goltekar, Son of Soiru Goltekar Vs. State of Goa, Through Its Chief Secretary, - Court Judgment

Excerpt:
property - land acquisition - dispensing of inquiry - validity of - section 5a of the land acquisition act, 1894 - sections 17 of the environment protection act, 1986 - appellant challenged acquisition of land for purpose of setting up waste disposal plant by respondent by writ petition - acquisition initiated by issuing notification under section 17(1) of act of 1986 dispensing inquiry under section 5a of act of 1894 - whether acquisition of land by dispensing inquiry valid in law - held, whether in a particular case an inquiry under section 5a is to be dispensed with is the subjective satisfaction of the government but it should be based on sufficient material before it - action of the government in invoking the urgency clause by dispensing the inquiry under section 5a cannot be justified as there was no conscious decision subjective or otherwise taken by the state government - further, formation of an opinion under sub-section 4 of section 17 of the act cannot be exercised by the minions of the state like the under secretary - it has to be exercised by the minister-in-charge under the rules of business before it can be considered as an order of the government - records not showed that respondent had occasion to apply its mind even subjectively - nothing to suggest aspect of urgency and dispensing with inquiry ever considered by respondent - emergency clause has been wrongly applied in the present case and the subsequent proceedings initiated after notification under section 4(1) of the land acquisition act are set aside - appeal allowed - - 3. the petitioner had raised the issue of health hazards being created on account of setting up of the said waste disposal plant as well as non application of mind whilst granting the provisional authorization by respondent no. it is the case of the petitioner that the urgency contemplated under section 17 of such nature that if a power under section 17 of the act was not exercised the very purpose for which the land was acquired urgently would be frustrated or defeated. thus deeper thought and urgent and immediate action is necessary to ensure compliance in future'.as far as the state of goa is concerned the position is no better in spite of the directions given by this court in claudio fernandes (reported in 2004 glr 377) and which compelled this court to appoint a committee for the selection of sites for the said purpose, by order dated 3-10-2006 in writ petition no. 11. none can deny the state's inherent power to acquire private property pursuant to its right of eminent domain but the hearing contemplated under section 5a of the act has now been held to be akin to a fundamental right in a catena of decisions of the apex court and the said right of a citizen can be taken away only for emergent and good reasons and not otherwise. [1980]1scr1071 the apex court noted that 'hearing him before depriving him is both reasonable and preemptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons'.in om prakash and anr. hearing him before depriving him is both reasonable and preemptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. it is not well settled that right of representation and hearing under section 5a 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 his/her property should not be made. arneja air2004sc3582 observing that section 17 confers extraordinary powers on the authorities under which it can dispense with the normal procedure laid down under section 5a of the act in exceptional case of urgency. 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. prima facie, therefore, the hearing of the comunidade or for that matter of present petitioner could well have been completed between 29-5-2007 (the date of the letter of the chief officer requesting for acquisition) and the date of the first impugned notification dated 3-6-2008. there is no doubt that the implementation of the rules was delayed and so also the identification of the site as per order of this court. the site had to be selected by the respondent council of its own and upon its failure upon the orders of this court order dated 3-10-2006. we did not expect the government officials concerned, to go about like a bull in a china shop and disregard the provisions of law, in complying with our orders. there was only one party to be heard as per records or at the most two, and the hearing could well be completed from 29-5-2007 and 6-9-2008. as stated by the apex court in union of india v. in other words till then the under secretary was not satisfied that the case was one of urgency. formation of an opinion under sub-section 4 of section 17 of the act cannot be exercised by the minions of the state like the under secretary. but when the decision making process itself is in question, the power of judicial review can be exercised by the court in the event the order impugned suffers from well known principles i. the minister-in-charge, and, in this view of the matter the challenge to the first notification ought to succeed and consequently to the second notification issued under section 6 of the act as well as to the very award dated 8-12-2008 made by the land acquisition officer. [2002]2scr326 the apex court has clearly held that satisfaction of the authority can be challenged before the court if it can be shown that the state government never applied its mind or took mala fide action.n.a. britto, j. 1. challenge in this writ petition is to the acquisition of land for the purpose of setting up a waste disposal plant for respondent no. 2-mmc initiated by notification dated 6-3-2008 issued under section 17(1) dispensing an inquiry under section 5a of the land acquisition act, 1894 (act, for short) and after filing of the petition, to the notification dated 30-6-2008 issued under section 6 of the act.2. the petitioner claims to be a tenant of the said property which belongs to the comunidade of cunchelim surveyed under no. 8, sub-divisions 1 to 11 and no. 9, sub-divisions 1 to 45, admeasuring about 32050 sq. meters.3. the petitioner had raised the issue of health hazards being created on account of setting up of the said waste disposal plant as well as non application of mind whilst granting the provisional authorization by respondent no. 3 board. however, these issues have already been dealt with by this court at the behest of the villagers of cunchelim village in writ petition no. 267/2008 by judgment dated 30-1-2009.4. the case of the petitioner in this petition is restricted to invocation of the urgency clause under section 17(1) of the said act and dispensation of an inquiry under section 5a of the said act. the case of the petitioner is that the only protection given to a person whose land is sought to be acquired to convince the acquiring authority that the public purpose for which the land was to be acquired is in fact not a public purpose; that the land is not suitable for the purpose for which it is sought to be acquired; that there is alternate land available for the said land, etc. further it is the case of the petitioner that section 5a affords two safeguards, namely, upon a receipt of objections, the acquiring authority is required to make an inquiry and submit a report to the appropriate government which is to contain, inter alia, the recommendations on the objections filed by the objectors, and, the appropriate government upon receipt of such report is once again required to consider the matter and take a decision thereon and for this purpose there has to be an application of mind by the appropriate government. it is the case of the petitioner that the valuable right afforded under section 5a of the act under the guise of urgency could not be dispensed with by the respondents. the case of the petitioner is that mere existence of urgency did not automatically authorize the acquiring authorities to dispense with the inquiry under section 5awhich is akin to a fundamental right having regard to article 300a of the constitution of india and in any event the urgency was not of such a nature as to dispense with the inquiry under section 5a of the act. it is also the case of the petitioner that section 5a contains a valuable and important right having regard to the provisions of article 300a of the constitution and has been held by the apex court to be a right akin to a fundamental right and as such urgency clause could be invoked only when there was real urgency where public interest did not brook even a minimum time to give a hearing. it is the case of the petitioner that the urgency contemplated under section 17 of such nature that if a power under section 17 of the act was not exercised the very purpose for which the land was acquired urgently would be frustrated or defeated. the petitioner has stated that there was no real urgency involved in the present acquisition proceedings and assuming such urgency existed the same was not of such a nature as to dispense with the hearing and/or the inquiry under section 5a of the act.5. the petition has been opposed by respondent no. 3 board stating that it had received a letter from the attorney of the comunidade of assagao, bardez suggesting the site for garbage treatment and as the board was seized of the matter a committee appointed by this court inspected the site and after considering all the relevant facts and comments of the members of the said committee issued its authorization dated 29-3-2007 to the respondent no. 2mmc to set up the garbage treatment plant, in the subject property. it is also stated that after the receipt of the notice of this writ petition the respondent no. 3 board once again inspected the site on 18-9-2008 to consider the objections raised as regards health hazards being created and the subject site being in the vicinity of certain houses and temples and came to the conclusion that the subject site did not have any residential houses. the various distances from the temples and houseshave been set out in para 9 of the affidavit and they are anywhere beyond 300meters from the boundaries of the subject site.6. at this stage, it may also be noted that the subject site has been selected by the committee appointed by this court in writ petition no. 28/2003 by order dated 3-10-2006. the said order was made by a division bench of this court after taking a note of the fact that the issue of garbage and waste disposal had become a major problem in the state of goa and in case prompt remedial measures were not adopted there might be serious health hazards. the court also had taken note of the fact that there was no co-ordination between various authorities and therefore this court by the said order dated 3-10-2006 had appointed a committee with the director of municipal administration as its convener and chairman of the board being one of its several members with a view to identify the sites for the waste disposal for each of the municipal councils and for setting up sites for land fills.7. the under secretary (revenue) has also filed an affidavit on behalf of respondent no. 1, and, in the said affidavit it has been set out that the disposal of waste is an issue of great public interest and this court in suo motu writ petition no. 2/2007 was seized of the matter concerning waste disposal in all the municipal councils and the corporation within the state of goa and also in village panchayats and from time to time orders have been passed by this court in order to ensure speedy action on the part of the authorities concerned who are acquiring lands for setting up waste disposal plants. then, reference is made to the case of claudio fernandes (reported in 2004 glr 377 wherein a submission was made on behalf of the government, as regards setting up of two garbage treatment plants, and it is stated that that idea was subsequently abandoned. then reference is made to another pil writ petition no. 3/2005 filed by one floriano lobo which has been disposed off. reference is also made to suo motu writ petition no. 2/2007 and it is stated that as on today the sites for various councils have been identified and in some cases they have been acquired, and in some cases the process of land acquisition has been initiated and it is stated that the present situation is that instead of two waste disposal plants for each of the two districts each municipal council has been required to identify its own place for the purpose of waste disposal. it is then stated that earlier the sites were surveyed under survey no. 144 of assagao village s. no. (145?) but this site was rejected by the respondent no. 3 board. then reference is made to certain directions issued by this court on 20-11-2007 in suo motu writ petition no. 2/2007 and it is stated that after considering the orders passed by this court in pil writ petition no. 3/2005 and suo motu writ petition no. 2/2007 the government decided to notify the subject site for acquisition and it was further decided to invoke the provision of section 17 of the act in view of the urgency of the matter since it was absolutely imperative that the acquisition of site for purpose of setting up of waste treatment plant was of utmost urgency and could not brook any delay, and, as such notification under section 4 was issued on 6-3-2008 for acquisition of the said area of 32050 sq. meters, which has a length of 150 meters and breadth of 190 meters in which a waste treatment plant can be set up by keeping a sufficient buffer zone of its own. it is then stated that although the provisions of section 5awere dispensed with various objections were received including from the petitioner which were not considered because of applicability of section 17(4) of the act and the site was inspected by the lao on 22-3-2008 who found that the temple of datta mandir was about 500 meters from the boundary of the said site. it is also stated that after considering the report of the lao and further considering that the waste treatment plant was urgently needed to be established by the council which would serve a public interest, the government decided to acquire the land and accordingly notification under section 6 was issued on 30-6-2008 and then notices under section 9(1) were issued. it is stated that setting up of a waste disposal plant is of urgent necessity, thus necessitating the applicability of section 17(4) of the act.8. the acquisition proceedings have now culminated in an award dated 8-12-2008, though upon a statement made by the learned advocate general, possession of the subject site has not been taken over by the government. as per order dated 3-10-2006 in writ petition no. 28/2003 the sites for disposal of waste and for setting up of land fills were required to be selected having regard to the municipal solid waste (management and handling) rules, 2000 framed under the environment (protection) act, 1986 which rules came in force on or about 3-10-2000 and as far as setting up of waste processing facilities were concerned they were to be completed by 31-12-2003 or earlier and the land fill sites were to be identified by 31-12-2002 or earlier. this court is still monitoring the disposal of waste by the municipal councils/corporation in the state of goa in suo motu writ petition no. 2/2007 and the disposal of waste in accordance with the said rules has remained even today, a distant dream.9. we have heard shri m.s. sonak, learned counsel on behalf of the petitioner and mr. s.s. kantak, learned advocate general, at length. various decisions have been cited on behalf of the parties. two questions arise for our consideration in this writ petition. the first is whether in the facts and circumstances of the case the state government was justified in dispensing with the provisions of section 5a of the act. the second is whether such a decision was at all arrived at by the state government. in the light of the answer as regards the second question being in negative, we do not propose to answer the first, in detail.10. admittedly, the subject site has been acquired for setting up a garbage disposal and treatment plant for respondent no. 2mmc who has been dumping its garbage for the last 20-30 years first in the property of the church and thereafter in the property of the comunidade, surveyed under no. 145 of village assagao. this was much before the rules (municipal solid waste (management and handling) rules, 2000 came into force and which came into force on or about3-10-2000 and as per the said rules setting up of waste processing facilities were to be completed by 31-12-2003 or earlier, and identification of land fill sites had to be completed by 31-12-2002 or earlier, as earlier stated. it would be apt to refer to the observations of the apex court made in almitra h. patel and anr. v. union of india and ors. on 4-10-2004 (reported in (2004) 13 scc 538) wherein the apex court observed that the 'rules have not been complied with, even after four years. none of the functionaries have bothered or discharged their duties to ensure compliance. even existing dumps have not been improved. thus deeper thought and urgent and immediate action is necessary to ensure compliance in future'. as far as the state of goa is concerned the position is no better in spite of the directions given by this court in claudio fernandes (reported in 2004 glr 377) and which compelled this court to appoint a committee for the selection of sites for the said purpose, by order dated 3-10-2006 in writ petition no. 28/2003. the subject site was identified pursuant thereto on or about 21-3-2007 and the provisional authorization of respondent no. 3 board was taken on 29-3-2007 and the first notification dispensing with the provisions of section 5a of the act came to be issued on 6-3-2008, almost a year later.11. none can deny the state's inherent power to acquire private property pursuant to its right of eminent domain but the hearing contemplated under section 5a of the act has now been held to be akin to a fundamental right in a catena of decisions of the apex court and the said right of a citizen can be taken away only for emergent and good reasons and not otherwise. in state of punjab and anr. v. gurdial singh and ors. : [1980]1scr1071 the apex court noted that 'hearing him before depriving him is both reasonable and preemptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons'. in om prakash and anr. v. state of u.p. and ors. (1988) 6 scc 1 the apex court observed that an inquiry under section 5a is not merely statutory but also has a flavour of fundamental right sunder sections 14 and 19 of the constitution though right to property has now no longer remained a fundamental right, at least observation regarding article 14 vis-a-vis section 5a of the act would remain apposite. in the case of state of punjab and anr. v. gurdial singh and ors. the apex court stated that it is fundamental that compulsory taking of a man's property is a serious matter and the smaller the man the more serious the matter. hearing him before depriving him is both reasonable and preemptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. save in real urgency where public interest does not brook even the minimum time needed to give a hearing land acquisition authorities should not, having regard to articles 14 and 19, burke an inquiry under section 17 of the act. here as lumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes a travesty of emergent power. in another context the apex court did observe in chameli singh and ors. v. state of u.p. and anr. : air1996sc1051 that '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 5a inquiry. it is not well settled that right of representation and hearing under section 5a 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 his/her property should not be made. if the government decides to take away this minimal right then its decision, to do so, though subjective must be made on materials on record to support the same. it cannot be left to its minions. but in another case of sheikar hotels gulmohar enclave v. state of u.p. 2008 all scr 1903 the supreme court noted that state functionaries may sometimes out of overzealousness may invoke the provision which would seriously jeopardize the interest of the people.12. various decisions were cited at the bar, on behalf of the government. it can be seen that most of these were considered by the apex court, and in the order they were cited, in union of india v. mukesh hans : air2004sc4307 . others are reported in 2008 al scr 1503 and 2008 air scw 7574. all stood on their own facts. the apex court, speaking through three learned judges in union of india v. mukesh hans stated as under: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 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 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.13. the same view was followed in union of india v. k.l. arneja : air2004sc3582 observing that section 17 confers extraordinary powers on the authorities under which it can dispense with the normal procedure laid down under section 5a 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 land owner of his right in relation to immovable property to file objections for the proposed acquisition and it also dispenses with the inquiry under section 5a of the act (emphasis supplied). 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 land owners and the inquiry under section 5a 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 and 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 in fructuous. 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.14. there is no doubt that whether in a particular case an inquiry under section 5a is to be dispensed with is the subjective satisfaction of the government but it should be based on sufficient material before it. we have no hesitation in accepting the contention of the learned advocate general that each case has to be decided on its own merits. there cannot be two opinions that the disposal of garbage as per the rules is of paramount importance and this court after finding that the required was not being done by the authorities to implement the said rules, had itself undertaken to appoint a committee to identify the sites for the disposal of wastes by order dated 3-10-2006 in pil writ petition no. 3/2005 but the site came to be identified only on or about 21-3-2007, over a year later. this would have not happened in case the respondents had shown urgency. the provisional authorization came to be issued on 29-3-2007 and the first impugned notification on 6-3-2008, almost a year, after the provisional authorization. the government showed no urgency between 3-10-2006 to 21-3-2007 and again from 29-3-2007 to 6-3-2008. the subject land belonged to the comunidade alone, as per records. the comunidade could have been heard within this period, twice over, if we may use the expression. the comunidade has not challenged the acquisition. the comunidade was one of the persons who was interested in the said land and could have challenged the acquisition. the petitioner as a tenant was another person who could have challenged the acquisition. it is not the case of the government that there were too many owners or interested persons who could have objected to the acquisition and deciding their objections could have taken a lot of time. the petitioners in writ petition no. 267/2008 appear to have filed the objections only after the publication of the first impugned notification. prima facie, therefore, the hearing of the comunidade or for that matter of present petitioner could well have been completed between 29-5-2007 (the date of the letter of the chief officer requesting for acquisition) and the date of the first impugned notification dated 3-6-2008. there is no doubt that the implementation of the rules was delayed and so also the identification of the site as per order of this court. the site had to be selected by the respondent council of its own and upon its failure upon the orders of this court order dated 3-10-2006. we did not expect the government officials concerned, to go about like a bull in a china shop and disregard the provisions of law, in complying with our orders. prima facie, therefore, the action of the government in invoking the urgency clause by dispensing the inquiry under section 5a cannot be justified. there was only one party to be heard as per records or at the most two, and the hearing could well be completed from 29-5-2007 and 6-9-2008. as stated by the apex court in union of india v. k.l. arneja laxity and lethargy on the part of the state cannot be a substitute to invoke urgency clause in as much as in the absence of material to justify urgency clause and long delay in issuing the notification cannot be ignored or condoned to uphold the validity of such notification. this later view of the apex court need to be followed.15. however, the matter cannot be allowed to end there. at our request the file/records were placed for our perusal, by the learned advocate general. from the said file it can be seen that after the provisional authorization was granted by respondent no. 2 board on or about 29-3-2007, the chief officer wrote a letter to the collector dated 29-5-2007 and upon a subsequent reminder sent, a check list was submitted on or about 11-9-2007. the said letter dated 29-5-2007 was presumably sent stating that it was a supreme court time bound matter as allmunicipals were required to have their own sites for waste management in accordance with the rules. after the checklist was submitted, the file was examined and a submission was made to the collector on 17-9-2007 recommending section 17 of the act and the same appears to have been approved by the collector on the same day. it can be seen from the noting of the file dated 6-12-2007 that on 19-11-2007 the under secretary (revenue-i) had written back to the collector stating that the urgency shown was as per the directives of the hon'ble supreme court but there was no evidential document of the hon'ble supreme court to that effect which was enclosed for his perusal or for that matter any directive from the high court and therefore genuine reasons for application of urgency clause may be furnished with the said documents. in other words till then the under secretary was not satisfied that the case was one of urgency. the deputy collector (la) vide his letter dated 6-12-2007 wrote back to the chief officer to comply with the observations of the said under secretary (revenue) but the letter dated 21-2-2008 of the chief officer with reference to letter dated 19-11-2007, skirted the issues and gave no reasons for urgency but only referred to the payment made of a sum of rs. 2,33,28,000/- and a letter received from the water resources department. then came the first impugned notification dated 6-3-2008 as a bolt from the blue.16. the records do not show that the file had ever moved upwards beyond the under secretary (revenue-i) in the hierarchy of the government. it does not appear to have been shown or seen or approved by the secretary of the department concerned and much less by the minister in charge of the subject and thus it becomes obvious that there was no conscious decision subjective or otherwise taken by the state government that due to urgency the provision of section 5a was required to be dispensed with. it is the state government who is required to form an opinion on the materials placed before it that section 5a had to be dispensed with. the under secretary to the government can have no power to dispose off a matter without authorization of the minister-in-charge. true, the notification dated 6-3-2008 is authenticated as required by the constitution. normally, executive decisions are taken on office files by way of nothings or endorsements made by officers or minister-in-charge. as already stated, the file/records produced do not show that the matter, particularly of dispensing with an inquiry, was ever considered by the secretary or the minister-in-charge of the department or subject. therefore, the notification dated 6-3-2008 in the absence of authorization or direction from the minister-in-charge has got to be considered invalid and of no legal effect and therefore deserves to be set aside. it is not the case of the respondents that the minister-in-charge had delegated his authority to the under secretary, by bypassing the secretary. formation of an opinion under sub-section 4 of section 17 of the act cannot be exercised by the minions of the state like the under secretary. it has to be exercised by the minister-in-charge under the rules of business before it can be considered as an order of the government. the apex court in hindustan petroleum corporation ltd. v. darius shapur chenai and ors. : air2005sc3520 has stated that the conclusiveness contained in section 6 of the act indisputably is attached to a need as also the purpose and in this regard ordinarily, the jurisdiction of the court is limited but it is equally true that when an opportunity of being heard has expressly been conferred by a statute, the same must scrupulously be complied with. for the said purpose, sections 4, 5a and 6 of the act must be read conjointly. the court in a case, where there has been total noncompliance or substantial non compliance of the provisions of section 5a of the act, cannot fold its hands and refuse to grant relief to the writ petitioner. sub-section (3) of section 6 of the act renders a declaration to be a conclusive evidence. but when the decision making process itself is in question, the power of judicial review can be exercised by the court in the event the order impugned suffers from well known principles i.e. illegality, irrationality and procedural impropriety. moreover, when a statutory authority exercises such enormous power it must be done in a fair and reasonable manner.17. as already stated, the question of urgency of an acquisition under section 17(1) and 17(4) of the act is a matter of subjective satisfaction of the government. the records do not show that the state government had an occasion to apply its mind even subjectively, and the first impugned notification has been issued only by the under secretary, though in the name of and by order of the governor of goa but there is nothing in the files which we have perused, to suggest that the aspect of urgency and dispensing with inquiry was ever considered by the state government i.e. the minister-in-charge, and, in this view of the matter the challenge to the first notification ought to succeed and consequently to the second notification issued under section 6 of the act as well as to the very award dated 8-12-2008 made by the land acquisition officer. in first land acquisition collector and ors. v. nirodhi prakash gangoli and anr. : [2002]2scr326 the apex court has clearly held that satisfaction of the authority can be challenged before the court if it can be shown that the state government never applied its mind or took mala fide action.18. we, accordingly, allow this petition by holding that the emergency clause has been wrongly applied in the present case and the subsequent proceedings initiated after notification under section 4(1) of the land acquisition act dated 6-3-2008 are set aside, with liberty to the respondents to proceed further in accordance with law from the aforesaid stage. rule is, accordingly, made absolute to the above extent.