3-judge vs 3-judge: Debate in SC intensifies, CJI Dipak Misra asked to step in

Explained: In 3 cases on land acquisition before SC, vital questions of law and process

In reaching this conclusion, the Justice Mishra-led bench, by a majority of 2-1, also held that a 2014 verdict in a case related to the Pune Municipal Corporation was “per incuriam” (passed without due regard to the law). That 2014 verdict was also by a three-judge bench, comprising then Chief Justice R M Lodha and Justices Lokur and Joseph, which said that non-payment of compensation could be a ground to cancel land acquisition.

On Thursday, Justices Mishra and Goel, sitting on separate benches, referred the matter to the CJI after being told that the three-judge bench headed by Justice Lokur had virtually stayed the February 8 order a day earlier.

Justice Mishra, who was sitting with Justice Amitava Roy, said: “We consider it appropriate that these matters be referred to the Hon’ble the Chief Justice to constitute an appropriate bench and to see whether we can proceed with the hearing or not. Since a larger issue is involved, we refer the matters to the Hon’ble Chief Justice to be dealt with by an appropriate bench, as His Lordship may consider appropriate.”

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And Justice Goel, who was on a bench with Justice U U Lalit, was of the view “that having regard to the nature of the issues involved in the matter, the issues need to be resolved by a larger bench at the earliest”. He directed that “these matters may be placed before the appropriate bench tomorrow i.e. 23rd February, 2018, as per orders of Hon’ble The Chief Justice of India.”

Lawyers appearing before the bench of Justices Roy and Mishra — they were hearing a case in which the February 8 decision could have had an impact — brought to their notice the previous day’s order of the bench led by Justice Lokur. At this, Justice Mishra observed that Wednesday’s decision was a “moral injunction” on the bench and that a larger bench will decide whether there was any judicial indiscipline.

Justice Joseph, who was on the bench with Justices Lokur and Gupta, wanted the entire matter referred to a larger bench for resolution. “Be very clear, this is a matter of judicial discipline, judicial propriety and consistency. Can a three-judge bench overrule a three-judge bench verdict? It has to be referred to a larger bench in case of difference of opinion,” Justice Joseph said.

The bench also requested High Courts and other benches of the Supreme Court which were hearing matters likely to be impacted by the February 8 order to defer the hearings till a decision is taken on whether it should be sent to a larger bench.