Judges have asked CJI for an appropriate bench to decide if a three-judge bench can overturn a previous judgment by a bench of similar strength.

New Delhi: Two separate benches of the Supreme Court decided to ask Chief Justice of India Dipak Misra Thursday to constitute an “appropriate” bench to decide whether a three-judge bench can declare “per incuriam” a judgment delivered by another bench of similar strength.

In layman’s language, “per incuriam” refers to a judgment that is delivered without taking into consideration available, relevant facts, or following due care. In simpler terms, it’s a careless judgment.

At the heart of the controversy are the divergent views within the Supreme Court on whether proceedings under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 – colloquially known as the new land acquisition Act – are said to have lapsed.

On 24 January 2014, in Pune Municipal Corporation vs Harakchand Misirimal Solanki, a three-judge bench comprising Justices R.M. Lodha, Madan B. Lokur and Kurian Joseph settled the law, holding that compensation in lieu of cost of the land, unless paid into the account of the land owner, couldn’t effectively be taken as payment made to him.

Thus, even if the compensation amount has been deposited in the government treasury, it can’t be held to be equivalent to compensation paid to the land owners/persons interested, the bench ruled. Several other judgments followed this settled principle of law.

If this judgment is declared “per incuriam”, something that another bench has now sought, it will lead to all cases decided on the basis of Pune judgment being reopened.

Split verdict

In its judgment of 8 February this year, a three-judge bench comprising Justices Arun Mishra, Adarsh Kumar Goel and Mohan M. Shantanagoudar decided to revisit the issue.

However, there was a twist in the tale: when two of the judges – Mishra and Goel – wanted to declare the Pune Municipal Corporation judgment “per incuriam”, Shantanagoudar dissented, saying “the (Pune) judgment cannot be said to have been through lack of care, or out of ignorance of certain important factors”.

He, however, also said that the judgment “may have to be reconsidered by a larger bench”, since it was decided by a bench of three judges. “The Registry is directed to place the papers before the Hon’ble Chief Justice of India for appropriate orders,” his judgment said.

But, the majority judgment, penned by Mishra, went to the extent of explaining the “principle of per incuriam”.

Citing a 1991 judgment of the SC, the bench said, “Incuria literally means ‘carelessness’. In practice, ‘per incuriam’ appears to mean ‘per ignoratium’.”

Thus, it quoted from the judgment to say that “the concept of ‘per incuriam’ signifies those decisions rendered in ignorance or forgetfulness of some inconsistent statutory provisions, or of some authority binding on the Court concerned”.

Another example of SC fallacy

Legal experts say if the Pune judgment is overturned, it would have a cascading effect on several land acquisition cases decided following the law as settled by it.

More importantly, Thursday’s orders by the benches of Justices Mishra and Goel, if they can be termed as such, once again expose the fallacious manner in which the highest court of the land has been functioning since the last several months.

While the last word on the issue will possibly be said at a later stage, many believe that the short but excellent dissent by Justice Mohan M. Shantanagoudar in the Indore Development Authority case could hold the key to the answer.

The fact that both Justices Lokur and Joseph were part of the 2014 bench that settled the law on Section 24(2) and have every reason to be upset over breach in judicial propriety by another bench to dub their judgment “per incuriam” doesn’t need too much highlighting.

By the way, there are instances of one bench, led by the CJI himself, hearing part-heard matters pending before other benches and proceeding to pass orders, in complete disregard of judicial discipline and propriety.

10 Comments Share Your Views

10 COMMENTS

  1. The January 2014 judgment appears to be fair. If a subsequent three member Bench unanimously – not 2 : 1, as in the present case – felt it needed reconsideration, without using the disrespectful phrase ” per incuriam “, it could have placed the matter before the CJI, requesting constitution of a larger Bench to rule upon the matter.

    • Exactly.The legislation is an outcome of a decade old effort of our bureaucracy.It has been revised more than 200 times during its making effort.This sort of criticism among judiciary about this legislation vied badly.Let us go with it for a decadeNothing will collapse.If required we may propose amendment through parliament.

  2. In, Indore development vs shailendra ( Dead) , Indore development authority taken stand we have deposited compensation Amount in land acquisition office , but Land owner Refuse to accept , but actually facts are ——- no compensation amount deposited by Indore development authority in land acquisition office , related this acquisition . That is showing in land acquisition office statement date 30.06.2015 , ( I Received copy of statement Via RTI )

  3. In indore development vs. Shailendra judgment it has referred judgment of Aligarh Muncipal Corporation Vs. Megh sons at page 181. It is referred as ” where Award under sec. 11 of the said LA Act 1894 is not made then all provisions of this new LA Act 2013 is applicable with regard to determination & payment of compensation. Now the question lies as follows:
    1. What happens when a land is acquired under self contained code of a state ( acquisition not under LA Act 1894) & meger compensation offered under consent, meger amount rejected, requested to pass an Award and Award is not passed as on 31.12.2013. A fabricated Award was drafted by SLAO & was passed by Deputy Commissioner on 24.02.2014 without following the provisions of the Act, 12(2) notice of LA Act 1894 was issued on 26.02.2014 and the Award amount was deposited in Court on 10.04.2014 in the name of a deceased person. With all these irregularities does not the authorities are liable for prosecution? The fabricated draft award is to be quashed & direct the State authorities to pass an fresh award as per provisions of New Land Acquisition Act 2013

  4. Using the word carelessness among higher judiciary in this country is unfortunate. Cases between bench vs bench is undesirable. It shows our judiciary is yet to develop.This RFCTLARR Act was drafted for a decade.The houses of parliament deliberately drafted this Act to meter out some benefit to the land looser who have been paid in pittance.The land owners were made to loose their crops for 3 to four decades due to acquisition.This loss who is going to compensate.Paying compensation as per 110 year old law is inhuman.Hence to give solace to the land owners this sec 24 (2) was inserted.On the basis of it the SG of I has also given explanation to the terms of this section.On the basis of these clarifications about 3000 judgments have been delivered by the SC and HC of this country.At this juncture some vested interest has initiated steps to dismantle this Act in such a way that farmers are continued to be looser forever in India.India do have scope only for development in all sphere.

  5. 8 feb ki judgement ke anusaar yadi aap apne adhigrahan ko rokne ke liye court se stay letey hai to wo 5 saal ki awadhi me shaamil nahi hoga,kripya ye bataye ki aam aadmi court ke maadhyam se apna virodh nahi darj karayega to uske paas kya vikalp bachta hai,aam aadmi ke paas itna paisa nahi ki le de kar ya itni taakat nahi ki bahubal se prashaasan ko adhigrahan se rok de,aashcharya ye hai ki court khud hi kah raha ki mere paas mat aao,bada aascharya hota hai,aisi baat sun kar

    • जज भी आखिर सरकारी नौकर ही हैं,न्याय्धिस नही. इनकी नयुक्ति सरकार द्वारा , सरकार के लिए ही होती है.दीपक मिश्रा हो या अरुण मिश्रा या रविन्द्र भट ये सभी नरेन्द्र मोदी भक्त हैं.मैं स्वयं रविन्द्र भट द्वारा पीड़ित हूँ.

  6. Major difference between award made and award paid , if the award amount is not paid in to the bank account that award should not be considered as the award paid hence new act should be applicable to ascertain the compensation award for such acquisition . whether the award amount was paid to the acquiring body or not that is immaterial ,

  7. In SLP(C) No. 9798/2016 Indore Development authority Vs. Shyam Verma (pending adjudication) it is an interpretation of Sec. 24(2) of the New Land Acquisition Act 2013 which is with regard to lapsing of acquisition where compensation was not paid or possession was not taken before 31.12.2013. But it was very much clear in implementing Sec. 24(1)(a) wherein the provisions of the New Land Acquisition Act 2013 are applicable with regard to determination of compensation where no Award was passed u/s 11 of the Land Acquisition Act 1894 before 31.12.2013. (Aligarh Development Authority Vs. Megh Singh & others Civil Appeal No. 4821/2016 arising out of SLP (C) No. 4282 of 2011 and also Allahabad High Court Judgment on Ishan International Educational Vs. State of UP & 3 others decided on 09/05/2017 under WRIT – C No. 60276/2015.

    My property is acquired under the provisions of the State self Contained code for Land Acquisition. No Award was passed on or before repealed of the LA Act 1894. Kindly reply me weather I am entitled for payment of compensation under the provisions of the New Land Acquisition Act 2013?

  8. Justice Arun mishra appearing like advocate of acquiring body. Referring to recent judgement given by him stating 2014 Pune judgement , Mishra Smartly shifted acquition in fevour of acquiring body. Simply twisted Simple and straight forward words like Deposit, Treasury , Paid, Payment and compensation. Blunder is he dared to state that all over india farmers who has not got compensation all of them refused to take compensation.

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