The debate over a three-judge bench of the Supreme Court overruling another three-judge bench in a land acquisition matter on February 8 will now be considered by a five-judge bench of the court. The five-judge bench comprising Chief Justice of India Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan will hear on March 6 two cases that were likely to be impacted by the February 8 order. These matters were referred to CJI Misra by two separate two-judge benches on February 22 with a request to refer it to an “appropriate” or “larger” bench for resolution.
The Supreme Court website shows that the matters have been listed before the five judges on March 6. On February 21, a bench of Justices Madan B Lokur, Kurian Joseph and Deepak Gupta had virtually stayed the operation of the February 8 order delivered by a bench of Justices Arun Mishra, A K Goel and Mohan M Shantanagoudar in a matter related to the Indore Development Authority. The order said that compensation not availed of within a stipulated five-year period could not be ground for cancellation of land acquisition.
In arriving at this conclusion, the Justice Arun 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).
Incidentally, that 2014 verdict too was by a three-judge bench, comprising then Chief Justice R M Lodha and Justices Lokur and Joseph, and had laid down that non-payment of compensation could be a ground to cancel land acquisition.
Raising questions on the three-judge bench overruling another three-judge bench, the bench of Justices Lokur, Joseph and Gupta 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 it decided whether to send the matter to a larger bench. Observed Justice Joseph, “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”.
But a day later, on February 22, Justices Arun Mishra and Goel, sitting on separate benches, referred two pending land acquisition cases that were likely to be impacted by the February 8 order to the CJI after being informed about the virtual stay.
Justice Mishra, who was sitting with Justice Amitava Roy, said: “We consider it appropriate that these matters be referred to the Hon’ble 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.” 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 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.” But it was not listed for February 23 and has now been listed instead for March 6.