Difference of opinion on one of the points that fell for consideration in a batch of cases heard by a bench comprising Swatanter Kumar and Madan B. Lokur, JJ pas necessitated this reference to a third judge. The precise issue on which the two Hon'ble Judges have differed and the facts giving rise to the controversy have been stated in the, orders proposed by their lordships. It is, therefore, unnecessary to recount the same over again except to the extent it is absolutely necessary to do so for a correct appreciation of the submissions made at the bar.

2. A large extent of land situate in revenue estate of village Malikpur Kohi also called Rangpuri, New Delhi was notified for acquisition by the appropriate Government for the public purpose of construction of staff quarters for the employees serving in the Government of NCT of Delhi. The preliminary notification issued under Section 4 on 1st June, 1995 also purported to invoke the powers vested in the Government under Section 17(1) and 17(4) of the Land Acquisition Act. Aggrieved by the said notification and the declaration under Section 6 of the Act issued on 17th November, 20.0.5, the land owners filed a large number of writ petitions challenging the legality thereof on several grounds. All these grounds, except the one relating to the validity of the notification invoking powers vested in the Government under Section 17(4) of the Act, were upon examination rejected by the Court, Insofar as the question of validity of the notification under Section 17(4) was concerned, the judges comprising the bench differed in their opinions. This difference of opinion also related to a part of the controversy only. Significantly, the judges comprising the bench were unanimous in holding that there was no application of mind on the part of the authority invoking the powers under Section 17(4) of the Act before or up to the date of issue of the notification under the said provision. Dealing with that aspect in WP(C) No. 4789/20.0.5 and connected matters, Swatanter Kumar, J observed:

"It is true that there is really not any material on record before me which could demonstrate that there was definite noting, application of mind and the direction issued by the appropriate authority for dispensation of provisions of Section 5A in terms of Section 17(4) of the Act. Of course, in the draft as well as final notification published under Section 4 of the Act, showing that the appropriate authority has exercised its powers under Section 17(4) of the Act, was included. This by itself may not be sufficient to show reasonable and proper application of mind by the appropriate authority even in recording its subjective satisfaction which is conspicuous by its very absence on the record. For the reasons stated in our judgment dated February 03, 2005 in WP(C) NO. 7446/1999. I am of the view that this was not sufficient compliance of the provisions of Section 17(4) of the Act."

3. Madan B. Lokur, J concurred with the above view in a separate opinion recorded by him in the following words:

"I am in agreement with his Lordship's conclusion that when the Notification under Section 4 of the Act was issued on 1st June, 1995, the appropriate Government did not apply its mind to the provisions of Section 17(4) of the Act. This means that consequently as on 1st June, 1995, the appropriate Government did not apply its mind to dispensing with an enquiry under Section 5-A of the Act by resorting to Section 17 (4) thereof. "

4. Things did riot however rest at that, for Swatanter Kumar, J went a step further to examine whether the appropriate Government had applied its mind to the question of dispensing with the enquiry under Section 5-A at any time before the issue of the declaration under Section 6 of the Act. His lordship was of the view that there was no prohibition against issuing a common notification under Section 4, 17(1) and 17(4) of the Act nor was there any prohibition against the invocation of the p