Given his earlier role, should Justice Arun Mishra recuse himself from a hearing on a provision in the land acquisition law of 2013? What does the Supreme Court have to say?

The story so far: At one level it is a legal issue over the interpretation of a provision in the new land acquisition law of 2013. At another, it is a question of possible judicial bias warranting the withdrawal of a judge from the proceedings. The reason is that the judge concerned, Justice Arun Mishra, of the Supreme Court of India, had overruled a precedent that had held good for four years and given a new interpretation, but was still asked to head a larger Bench meant to render an authoritative verdict on which of the two interpretations is right.

What is the provision and why does it need interpretation?

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 (2013 Act), replaced the Land Acquisition Act, 1894 (1894 Act). The new Act provides for higher compensation to those deprived of land by the government for both public and private sector projects. It also mandates consent of a majority of land-owners, and contains provisions for rehabilitation and resettlement.

Under Section 24(2), land acquisition made under the old law of 1894 lapses if the award of compensation had been made five years before the new Act came into force, but has not been paid. In such cases, the process will have to be gone through afresh under the new Act, which mandates higher compensation. There are cases in which farmers and other land-owners have refused the compensation, leading to delay in the government taking possession. In this situation, the compensation amount is deposited in the government treasury. According to one interpretation, if this is done, the acquisition process is saved. Then again, others contend that such cases will fall under the new Act because compensation has not been paid to the land-owners, and the lapsing clause in Section 24 should be applied.

If, through interpretation, a long-pending land acquisition process is closed under the old law and fresh acquisition proceedings started under the new one, the land-owners stand to benefit, but project proponents will have to pay higher compensation. Therefore, the provision concerned is often a subject of litigation.

What happened in the case before the Supreme Court?

On January 24, 2014, a three-judge Bench, comprising Justices R.M. Lodha, Madan B. Lokur and Kurian Joseph, in Pune Municipal Corporation vs. Harakchand M. Solanki, ruled that the acquisition of a piece of land had “lapsed” because the compensation awarded had neither been paid to the landowners/persons interested nor deposited in the court. The deposit of the compensation amount in the government treasury was held to be “of no avail” as it was not equivalent to the compensation being “paid”. Based on this judgment, subsequent cases were decided on the same principle: acquisition that had taken place earlier than five years before the new Act commenced would lapse if compensation amount was not paid to the land-owners or, in cases in which the owners refused to accept compensation, deposited in court.

How was this precedent dealt with in another case in 2018?

The same question arose in Indore Development Authority vs. Shailendra. Another three-judge Bench, comprising Justice Arun Mishra, A.K. Goel and M.M. Shantanagoudar, did not accept the earlier Bench’s view. On February 8, 2018, the majority, consisting of the first two judges, ruled that the acquisition would not lapse merely because the compensation amount was not deposited in court, but was instead deposited in the treasury. It ruled that the past practice of more than a century, under which the amount was deposited in the treasury, was not taken into account by the earlier Bench. Some provisions and orders that allowed this practice were not placed before that Bench. Further, the land acquisition in that particular case had been quashed by a High Court in 2008. Since it was not a subsisting process, the question under Section 24(2), whether the acquisition lapsed because of non-payment of compensation or non-deposit in the court, did not arise at all. On these grounds, Justice Mishra and Justice Goel overruled the earlier judgment and held that it was per incuriam, that is a verdict passed in disregard of law and, therefore, wrong. Justice Shantanagoudar dissented on the last point.

What happened next?

Later, when another case came up before a Bench on which Justices Lokur and Joseph were members, the fact that their earlier judgment had been overruled was brought to their notice. Lawyers appearing before them argued that Justice Mishra’s Bench, being of the same size of the one that rendered the earlier verdict, was bound by it, and ought not to have overruled it. In case, it disagreed with the earlier view, it could have referred the matter to a larger Bench. The court, then, put on hold all hearings involving Section 24(2). Later, the question was referred to a larger Bench for an authoritative judgment.

Why is there a demand for Justice Arun Mishra’s recusal?

It was not until this month that a Bench was constituted. It was a five-member Bench headed by Justice Mishra. Some lawyers and parties commented that it was improper for the judge to hear this matter because he had already taken a firm view in favour of one interpretation. Senior lawyer Shyam Divan demanded Justice Mishra’s recusal in open court, invoking the principle that even the apprehension of bias on the part of a judge was enough to ask for his withdrawal from a case. The judge, however, rejected the idea categorically, contending that a “lobby” was against his hearing the case. In oral observations, he said there was nothing to suggest that he would be unwilling to be persuaded by new arguments to take a fresh view of the legal questions. Also, he said this question has arisen in many cases, and many judges now in the Supreme Court would have dealt with it as High Court judges. However, arguments on the issue of bias and the principles of recusal went on for two weeks, and the court has reserved its order on this question.

What does the controversy mean for land-owners and project proponents?

A ruling that old acquisitions lapse for non-deposit of compensation will be more beneficial to land-owners and farmers as they stand to get higher compensation and rehabilitation and resettlement measures. On the other hand, project proponents feel such an interpretation would mean that those who refused to take compensation, even after it had been fixed and the money deposited in the government treasury, would be taking advantage of their own wrong.

On this issue, what lies ahead?

If the Bench rejects the demand for Justice Mishra’s recusal, the petitioners will have no choice but to argue the entire question again on merits. Thereafter, the ruling given by the five-member Bench is expected to settle the question. In case there is a recusal, the question will go to a Bench that does not include him.