SC Constitution Bench Reserves Orders On Plea For Recusal Of Justice Arun Mishra From Land Acquisition Matters

The Constitution Bench of the Supreme Court on Wednesday reserved orders on the plea for recusal of Justice Arun Mishra from hearing the matters related to interpretation of Section 24(2) of the Right to Fair Compensation, Transparency in Land Acquisition and Rehabilitation and Resettlement Act 2013.

The bench said that it will pronounce orders on October 23.

This was after a day long arguments by Senior Advocates Shyam Divan, Gopal Shankaranarayanan, Dinesh Dwivedi, who sought for Justice Mishra's recusal. Solicitor General Tushar Mehta opposed the plea, along with ASG Pinky Anand, and Senior Advocates Mohan Parasaran and Vivek Tankha.

Leading the arguments for petitioners, Divan submitted that predisposition of a judge to hold a particular view gave rise to reasonable apprehension of bias, which was sufficient for recusal. Disqualification is not argued on grounds of actual bias, it is done so on reasonable apprehension of bias.

Justice Mishra refused to budge and said that the request amounted to bench hunting.

"You want a bench of your choice, your formulations, those who may favour you. This will destroy the independence of judiciary. This is bench hunting, nothing less. This is taming the judiciary", Justice Mishra said.

Shyam Divan clarifying that there is no intention for bench hunting.
"There are principles that have to be applied here. There is nothing remotely concerned with bench hunting. We are only drawing attention to certain internationally accepted standards". pic.twitter.com/sV2dJ4sSJ0

— Live Law (@LiveLawIndia) October 16, 2019

Solicitor General submitted that prejudged bias should be demonstrated to make out a case for recusal. Mere strong expression of the likely outcome of a case is insufficient. Quoting the US doctrine of "extra judicial bias", the Solicitor General submitted that the fact that the opinion of a judge has been derived from sources outside the context of a judicial proceeding, does not suffice as bias.

Unless they display a deep seated antagonism or favouritism, they cannot be construed as a formation of a bias : Tushar Mehta#JusticeArunMishraRecusal

— Live Law (@LiveLawIndia) October 16, 2019

Senior Advocate Mohan Parasaran cited the instance of Justice Bhagwati sitting in a larger bench and overruling a judgment authored by him.

"A Judge Does Not Have To Be Offended When A Recusal Is Sought": Shyam Divan Presses For Recusal Of Justice Arun Mishra From Hearing LA Petitions

On October 12, the Supreme Court notified that a 5-judge constitution bench, headed by Justice Arun Mishra, and comprising of Justices Indira Banerjee, Vineet Saran, MR Shah and Ravindra Bhat would begin hearing five matters related to the Land Acquisition Act from October 15.

As per Section 24(2), acquisition proceedings initiated as per the Land Acquisition Act 1894 five years before the commencement of 2013 Act will lapse, if "compensation has not been paid" to the land owners.

In the 2014 decision Pune Municipal Corporation v Harakchand Misiramal Solanki, a 3-judge bench comprising of then CJI Justice RM Lodha and Justices Madan Lokur and Kurian Joseph held that mere deposit of compensation in government treasury cannot be regarded as payment made to the land owner and acquisition proceedings under the 1894 Act will lapse in such cases. If there is refusal of land owner to accept compensation, the amount should be deposited in Court as per Section 31 of the Land Acquisition Act, the bench held.

This decision was declared per incuriam and overruled by another three judge bench headed by Justice Arun Mishra in the 2018 decision Indore Development Authority vs Shailendra and others by 2:1 majority. The majority held that deposit of award in treasury should be regarded as payment to the land owner who is refusing to accept compensation. Justice Shantanagoudar dissented.

Later, a three-Judge bench presided by Justice Madan B Lokur, stayed the hearing of compensation matters in the land acquisition cases in all the high courts till the issue was settled. This bench took objection to the bench in Indore Development Authority case overruling a precedent laid down by a coordinate bench.

Following this, two two-Judge benches, one presided by Justice Arun Mishra and another by Justice Adarsh Kumar Goel (who were part of the bench which decided Indore Development Authority case), made a reference to the CJI for constituting a larger bench, to settle the controversy.