Case Note & Summary
This order arises from a reference to a five-judge Constitution Bench of the Supreme Court of India concerning the interpretation of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The background involves a three-judge bench decision in Pune Municipal Corporation v. Harakchand Misirimal Solanki (2014) 3 SCC 183, which interpreted Section 24. Subsequently, a two-judge bench in Yogesh Neema v. State of Madhya Pradesh (2016) 6 SCC 387 doubted the decision in Sree Balaji Nagar Residential Assn. v. State of Tamil Nadu (2015) 3 SCC 353 and referred the matter to a larger bench. Later, in Indore Development Authority v. Shailendra (Dead) through Lrs. (2018 SCC Online SC 100), a three-judge bench (comprising Arun Mishra, Adarsh Kumar Goel, and Mohan M. Shantanagoudar) answered several questions regarding Section 24, with two judges opining that Pune Municipal Corporation was per incuriam, while the third judge favored a reference to a larger bench. The Chief Justice of India constituted a Constitution Bench to consider all aspects, including the correctness of Pune Municipal Corporation and Indore Development Authority. At the hearing, senior advocates for the respondents raised a preliminary objection for the recusal of Justice Arun Mishra, who was part of the smaller bench in Indore Development Authority, on grounds of bias and predisposition. They argued that a judge cannot sit in appeal over his own judgment and that there is a reasonable apprehension of bias. The Solicitor General and other senior advocates opposed the recusal, citing the practice of judges who have decided matters earlier being part of larger benches and that the plea of bias is based on extrajudicial factors. The court, after hearing submissions, rejected the recusal objection, holding that a judge who has decided a matter in a smaller bench is not disqualified from sitting in a larger bench to reconsider the same issue, as the plea of bias or predisposition is based on extrajudicial factors and not on judicial decisions. The court noted that the Chief Justice of India had constituted the bench appropriately and that the matter would proceed on the merits.
Headnote
A) Land Acquisition - Interpretation of Section 24 of the Act of 2013 - Meaning of 'paid' - The word 'paid' in Section 24 of the Act of 2013 has the same meaning as 'tender of payment' in Section 31(1) of the Act of 1894, and does not include 'deposited' in Section 31(2). Non-deposit of compensation in Court does not result in lapse of acquisition under Section 24(2) of the Act of 2013. (Paras 1-4)
B) Land Acquisition - Mode of taking possession - The normal mode of taking physical possession under land acquisition cases is drawing of Panchnama as held in Banda Development Authority. (Para 4)
C) Land Acquisition - Revival of barred claims - The provisions of Section 24 of the Act of 2013 do not revive barred or stale claims. (Para 4)
D) Land Acquisition - Exclusion of period of litigation - The period covered by final/interim order of court or otherwise during which authorities were disabled to act under Section 24(2) has to be excluded from the period of five years provided in Section 24(2) of the Act of 2013. (Para 4)
E) Land Acquisition - Principle of actus curiae neminem gravabit - The principle is applicable for determining questions under Section 24 of the Act of 2013, and the period covered by final/interim order depriving authorities of taking possession has to be excluded. (Para 4)
F) Constitutional Law - Recusal of Judge - Bias or predisposition - A judge who has decided a matter in a smaller bench is not disqualified from sitting in a larger bench to reconsider the same issue, as the plea of bias or predisposition is based on extrajudicial factors and not on judicial decisions. (Paras 9-11)
Issue of Consideration
Whether the Constitution Bench should consider the correctness of the decision in Pune Municipal Corporation v. Harakchand Misirimal Solanki and the judgment in Indore Development Authority v. Shailendra, and whether one of the judges who was part of the smaller bench should recuse from hearing the reference.
Final Decision
The preliminary objection for recusal of Justice Arun Mishra is rejected. The Constitution Bench will proceed to hear the reference on the merits.
Law Points
- Interpretation of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition
- Rehabilitation and Resettlement Act
- 2013
- Meaning of 'paid' in Section 24
- Mode of taking possession under land acquisition
- Revival of barred claims
- Exclusion of period of litigation for lapse of acquisition
- Principle of actus curiae neminem gravabit
- Recusal of judge on ground of bias or predisposition
Case Details
2019 LawText (SC) (10) 20
Special Leave Petition (C) Nos.9036-9038 of 2016 and connected matters
Shyam Divan, Dinesh Dwivedi, Gopal Sankarnarayanan (for respondents); Tushar Mehta (Solicitor General), Mohan Parasaran, Anoop Chaudhary, Vivek Tankha (for petitioner)
Indore Development Authority
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Nature of Litigation
Reference to Constitution Bench for interpretation of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, with preliminary objection for recusal of a judge.
Remedy Sought
Respondents sought recusal of Justice Arun Mishra from the Constitution Bench hearing the reference.
Filing Reason
The reference was made due to conflicting interpretations of Section 24 of the Act of 2013 in earlier decisions, and the respondents raised a preliminary objection that one of the judges who had decided the matter in a smaller bench should recuse.
Previous Decisions
Pune Municipal Corporation v. Harakchand Misirimal Solanki (2014) 3 SCC 183; Yogesh Neema v. State of Madhya Pradesh (2016) 6 SCC 387; Indore Development Authority v. Shailendra (2018 SCC Online SC 100)
Issues
Whether the Constitution Bench should consider the correctness of the decision in Pune Municipal Corporation v. Harakchand Misirimal Solanki and the judgment in Indore Development Authority v. Shailendra.
Whether one of the judges who was part of the smaller bench in Indore Development Authority should recuse from hearing the reference on grounds of bias or predisposition.
Submissions/Arguments
Respondents argued that Justice Arun Mishra, having decided Indore Development Authority and held Pune Municipal Corporation per incuriam, is predisposed and cannot impartially hear the reference; a judge cannot sit in appeal over his own judgment.
Petitioner and Solicitor General argued that there is no question of recusal as it is practice for judges who decided earlier matters to be part of larger benches; plea of bias is based on extrajudicial factors, not judicial decisions.
Ratio Decidendi
A judge who has decided a matter in a smaller bench is not disqualified from sitting in a larger bench to reconsider the same issue, as the plea of bias or predisposition is based on extrajudicial factors and not on judicial decisions. The practice of this Court allows judges who have delivered a judgment in a smaller bench to be part of a larger bench deciding the same issue.
Judgment Excerpts
The question of interpretation of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, has been referred to a five-Judge Constitution Bench of this Court.
A three-Judge Bench of this Court in Pune Municipal Corporation & Anr. v. Harakchand Misirimal Solanki & Ors. (2014) 3 SCC 183, had delivered a judgment interpreting section 24 of the Act of 2013.
In Indore Development Authority v. Shailendra (Dead) thr. Lrs. & Ors. (supra), the bench consisting of one of us, namely, Arun Mishra, J., Adarsh Kumar Goel, J. and Mohan M. Shantanagoudar, J. has decided the matter, and the view taken is that in Pune Municipal Corporation (supra), the Court did not consider several aspects as to the interpretation of section 24 of the Act of 2013.
Mr. Shyam Divan, Mr. Dinesh Dwivedi and Mr. Gopal Sankarnarayanan, learned Senior Advocates on behalf of the respondents, have raised a preliminary objection for recusal of one of us, namely; Arun Mishra, J. on the ground that Constitution Bench consists of one of the Judges who were on a smaller panel and the correctness of the opinion cannot be, thus, judged by the Constitution Bench independently, as a final view has been expressed in Indore Development Authority (supra) wherein the decision in Pune Municipal Corporation (supra) has been held to be per incuriam.
Per contra, Shri Tushar Mehta, Learned Solicitor General, Shri Mohan Parasaran, Shri Anoop Chaudhary and Shri Vivek Tankha, learned Senior Advocates submitted that there is no question of recusal and as a matter of substance it is the practice of this Court that the Judges who have decided the matter earlier or have referred it are made part of the Bench.
Procedural History
The matter originated from a reference to a larger bench due to doubts about the interpretation of Section 24 of the Act of 2013. A three-judge bench in Indore Development Authority v. Shailendra answered certain questions but also referred the matter to a larger bench. The Chief Justice of India constituted a five-judge Constitution Bench. At the hearing, a preliminary objection for recusal of one judge was raised and rejected.
Acts & Sections
- Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013: Section 24
- Land Acquisition Act, 1894: Section 31(1), Section 31(2), Section 34
