JUDGMENT
T.S. Thakur, J.
1. In this petition for a writ of certiorari, the petitioner calls in question the validity of a notification dated 12th August, 1997 purported to have been issued under Sections 4, 17(1) and 17(4) of the Land Acquisition Act notifying for acquisition a total extent of 194 bighas and 19.5 biswas for the public purpose of setting up a Sports School near Ghevra Modh under planned development of Delhi. Since the petitioner’s land out of the total extent so notified is limited to 44 bighas situated in Khasra Numbers 79/22, 23, 24, 25, 85/2, 3, 4,5, 6, 7, 8, 9,15/1, 26, 27 of the said village, the present writ petition shall deal with the impugned notification only to the extent the same relates to the petitioner’s land.
2. Appearing for the petitioner, Mr. Sethi, learned Senior Counsel, urged a short point in support of the petition. He submitted that although theimpugned notification purported to invoke Section 17(4) of the Land Acquisition Act, yet in the absence of a proper order of the competent authority supporting the said invocation, the notification would be legally unsustainable. Relying upon the decision of the Supreme Court in Union of India and Ors. v. Mukesh Hans, , Mr. Sethi argued that no only should there be a notification invoking Section 17(4) of the Act dispensing with the conduct of the inquiry under Section 5A, but the same should be supported by a proper order passed on due and proper application of mind by the competent authority directing such dispensation. He submitted that the competent authority had not, in the instant case, applied its mind, recorded its satisfaction or passed an order giving reasons for dispensing with the inquiry under Section 5A of the Act. The impugned notification to the extent the same purported to invoke Section 17(4) to dispense with the inquiry was, therefore, bad in law. He further submitted that since the notification itself suffers from an incurable defect, all subsequent proceedings conducted by the respondents on the basis thereof including the declaration under Section 6 of the Act and the award under Section 11 thereof were non est in the eye of law and had to be quashed.
3. On behalf of the respondents, Ms. Luthra made a three-fold submission before us. In the first place, she argued that the petitioner has not raised the ground now urged before the Court to challenge the impugned notification. She urged that the grounds set out in the petition proceeded on the basis that an order dispensing with inquiry under Section 5A of the Act had indeed been made, but the same was, according to the petitioner, legally bad. Alternatively, she submitted that since possession of the land had been taken over by the respondents, no matter in ignorance of an interim order passed by this Court forbidding any such action, the petitioners could be suitably compensated by payment of compensation/damages for such illegal occupation. In support, she placed reliance upon the judgment of the Supreme Court in R.L. Jain (D) by LRs v. DDA and Ors., . She lastly argued that the Lt. Governor has, in the present case, applied his mind and come to the conclusion that it was a fit case in which the inquiry under Section 5A ought to be dispensed with. She drew our attention in this regard to the contemporaneous official record to show that the notification in question had been issued after due and proper application of mind, as required by law.
4. The legal position as regards the need for making an order after due and proper application of mind by the competent authority dispensing with the conduct of an inquiry under Section 5A of the Act is settled by the decision of the Supreme Court in Mukesh Hans’ case (supra) relied upon by Mr. Sethi. The Court had, in the said decision, summed up the legal position thus:
“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 be 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.
35. At this stage, it is relevant to notice that the limited right given to an owner/person interested under Section 5-A of the Act to object to the acquisition proceedings is not an empty formality and is a substantive right, which can be taken away for good and valid reason and within the limitations prescribed under Section 17(4) of the Act.”
5. The limited right conceded to an owner whose land has been notified is to object to the acquisition proceedings in the inquiry under Section 5A of the Act. Dispensing with such an inquiry without a proper and careful application of mind to the circumstances in which the order is being made would, therefore, be against the scheme of the Act hence impermissible in law. That proposition was fairly conceded by Ms. Luthra also. What she argued was that the requirement of due and proper application of mind to the question of dispensing with the inquiry is fully satisfied in the present case. In support of that submission, Ms. Luthra placed total reliance upon the following order passed by the Lt. Governor on the 8th August, 1997:
“I have gone through the records and the requirements for Sports School and the Draft Notification received from Land Acquisition Collector.
I am satisfied that the land in question is required for a valid public purpose namely for Sports School. In view of the scheme, I order that the notification under Sections 4, 6 and 17(i) of the Land Acquisition Act be issued in respect of the land at village Ghevra, Tikri Kalan and Hiran Kudna immediately.
Sd/-
(Tejendra Khanna)
LT. GOVERNOR, DELHI.”
6. We fail to appreciate how the above order can possibly be construed as an order which discloses application of mind to the question whether the inquiry under Section 5A should or should not be dispensed with. A careful reading of the order passed by the Lt. Governor on the contrary would show that the order is limited to the issue of a notification under Sections 4(6) and 17(1) alone. There is no direction that a notification under Section 17(4) needs to be issued leave alone any specific opinion recorded on the file that the present was a fit case in which urgency did not brook the conduct of any inquiry under Section 5A. The submission made by Ms. Luthra that the draft notification put up to the Lt. Governor referred to Section 17(4) and, therefore, must be deemed to have been within the comprehension of the order passed by the Lt. Governor, has not impressed us. It is true that in the draft notification, there is a hand written addition which purports to invoke Section 17(4) of the Act thereby dispensing with an inquiry under Section 5A, yet the order passed by the Lt. Governor does not make any reference to the invocation of Section 17(4), nor does the Lt. Governor disclose any reasons why an inquiry under Section 5A of the Act cannot in the light of the urgency be conducted. It is elementary that a statutory order can be validly made only after due and proper application of mind. Application of mind, in turn, is best demonstrated by disclosure of mind. Disclosure of mind is best done by recording reasons. There is, in the present case, no application of mind because no reasons whatsoever are available from the record as to why an inquiry under Section 5A deserves to be dispensed with. We have, therefore, no hesitation in rejecting the submission made by Ms. Luthra that the notification invoking Section 17(4) of the Act and dispensing with the inquiry under Section 5A was supported by a proper order passed by the Competent Authority after due and proper application of mind.
7. That being so, it is difficult to see how the mere fact that possession of the land had been taken by the respondents, no matter in violation of an interim order issued by this Court, could come to the rescue of the respondents. The decision of the Supreme Court in R.L. Jain’s case (supra) relied upon by Ms. Luthra, is wholly inapplicable to the instant case. That was a case where the question was whether possession taken in anticipation of the issue of a notification under Section 4 could be sustained by award of suitable compensation to the land owners. The Court held that in cases where the land owner is dispossessed prior to the issuance of a preliminary notification under Section 4(1), the Government may take the possession but the title there of would continue to vest with the land owner. It would, therefore, be open to the land owner to recover the possession of his land by taking appropriate legal proceedings besides recovering rent or damages for use and occupation for the period the Government retain possession of his property. The Court also held that when possession is taken prior to the issuance of the notification, it was just and equitable for the Collector to determine the rent or damages for use and occupation of the property to which the land owner is entitled while determining the compensation amount payable to him. We fail to see how the said decision can, in any way, lend assistance to the respondents in the present case.
8. That leaves us with the only other argument advanced by Ms. Luthra that the petitioner had not raised any plea in the writ petition touching upon the requirement of passing an appropriate order invoking Section 17(4) of the Act. We have been taken through the averments made in the writ petition. We are of the view that the grounds urged in the writ petition sufficiently raise the question regarding the validity of notification insofar as the same dispense with an inquiry under Section 5A of the Act. We have, therefore, no difficulty in rejecting that submission also.
9. In the result, we allow this petition in part and quash the impugned notification to the extent the same dispensed with an inquiry under Section 5A of the Land Acquisition Act qua land measuring 44 bighas owned by the petitioners. Consequently, all further actions taken by the respondents pursuant to the said notification including the declaration under Section 6 and the award made on the basis thereof to the extent the same relate to the land owned by the petitioners shall also stand quashed. We make it clear that this order shall not prevent the respondents from taking any further action on the basis of the preliminary notification, if otherwise permissible in law. No costs.