A five-judge Constitution bench of the Supreme Court will decide whether several state governments which acquired private land before 2009 were legal or not, by resolving two conflicting judgments pronounced by two three-judge benches of the same court in 2014 and 2018. This has taken place because Supreme Court judges vary in wisdom and knowledge with the variations becoming evident when they disagree.

The five-judge bench began listening to arguments on October 15 to interpret a provision of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 which supplanted the colonial era 1894 land acquisition law. In the Supreme Court, judges always sit in benches of two and three.

Section 24 (2) of the Act declares when land acquisition proceedings were started under the 1894 law and compensation had been already fixed, the acquisition proceedings would lapse if the state did not take possession of the land within five years and also did not promptly pay compensation to the land owner.

After the acquisition proceedings lapsed under the 1894 law, the acquisition process would be initiated afresh under the 2013 law which allowed the land owner to get a higher compensation. The expression “paid” needed interpretation. And simply because it placed the responsibility on the government to pay compensation to the land owner, hundreds of cases challenging the acquisition of land were filed before various courts across the country soon after the 2013 law came into effect.

In 2014, a three-judge bench comprising the then chief justice of India R M Lodha, Madan Lokur and Kurien Joseph in Pune Municipal Authority versus Harakchand Misirimal Solanki declared that when the state deposited the compensation amount in its own treasury, this did not amount to the landowner being “paid” compensation.

This is straight logic because if the government deposited the compensation amount in its own treasury, the land owner has not received a paisa, pushing small farmers into committing suicide. In exceptional cases, where the landowner refuses the compensation deemed appropriate for him, the sum could be deposited in the court. But even then, the question whether the landowner was “paid” compensation would have to be answered in the negative.

After this reasoning was followed by several high courts across the country, the apex court reaffirmed its own reasoning in 2016. But in February 2018, another three-judge bench consisting of Arun Mishra, Adarsh Goel and Mohan Shantanagoudar, ruled in Indore Developmental Authority versus Shailendra that when the landowner had refused compensation, depositing it with the treasury was sufficient to come within the gamut of the expression “paid” to the landowner. In a diametrically opposite stand, the three judges ruled that the state was not obligated to deposit the disputed amount of compensation with the court.

Going even further, these three judges pronounced the only result of not depositing the disputed amount with the courts was “at the most in appropriate cases may be a higher rate of interest on the compensation amount” would have to be paid to the aggrieved landowner. But the entire acquisition process would not lapse.

Strangely, the three judges invalidated the law settled by another three-judge bench in 2014 and declared the preceding judgment by a bench of equal strength to be “per incuriam.” This is a Latin expression for negligence because the judges who delivered the judgment were ignorant about a prevailing binding law or judgment so that the judgment declared “per incuriam” ceases to be followed.

A few days after the 2018 judgment was pronounced, another three-judge bench comprising the then CJI Deepak Gupta, Madan Lokur and Kurien Joseph (the latter two being part of the earlier bench) noticed the contradictory judgments and stayed all cases pertaining to land acquisition in all the 24 high courts throughout India until this question of law relating to the interpretation of the word “paid” was settled by a five-judge bench of the apex court.

Justice Kurien Joseph orally said in open court the 2018 judgment had deviated from “virgin principles” of the Supreme Court by declaring a judgment of equal number of judges as per incuriam. This in effect, amounted to judicial indiscipline, which was why a Kerala High Court judge was later named and shamed in the Supreme Court by Justice Arun Mishra. Ironically, it was this same Justice Mishra who was earlier guilty of judicial indiscipline himself. After this, separate benches headed by Justices Adarsh Goel and Arun Mishra referred the matter to the then CJI Deepak Misra requesting him to set up a five-judge Constitution bench to declare the law. It is well settled that a three-judge bench of the Supreme Court cannot declare a judgment of another three-judge bench as per incuriam.

The entire controversy got a fresh impetus because the All India Farmers Association wrote a letter to CJI Ranjan Gogoi dated October 14 asking that Justice Arun Mishra should not hear the five matters relating to fair compensation being “paid” to land owners as he had already expressed his opinion when heading the three-judge bench which declared the 2014 judgment by a bench of equal strength as “per incuriam.”

Justice Arun Mishra is no stranger to controversy. Without naming him, the four judges who held a press conference on January 12, 2018 had insinuated that the former CJI Deepak Misra was selectively assigning cases to Justice Arun Mishra. These included the PILs demanding a probe into the alleged suspicious death of Judge Loya from Nagpur and also another petition demanding a probe into the former CJI Deepak Misra’s role in the medical colleges scam. Justice Mishra announced several times in open court that lawyers like Prashant Bhushan and Kamini Jaiswal should be held to have committed contempt of court for making allegations against the then CJI Deepak Misra.

But after retiring, Justice Kurien Joseph repeated his allegation that former CJI Deepak Misra was being controlled by “some mysterious unseen hand”.

The writer holds a Ph.D in Media law and is a journalist-cum-lawyer of the Bombay high court.