Monday, 30th October 2017

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Justice Mishra will judge if Justice Mishra was correct

The constitution bench on Wednesday passed a detailed judgment rejecting a petition for Justice Arun Mishra’s recusal

By Our Legal Correspondent in New Delhi
  • Published 24.10.19, 5:41 AM
  • Updated 24.10.19, 6:07 AM
  • 2 mins read
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The written order had, however, not been uploaded on the official website of the Supreme Court till late evening. iStock photo

Justice Arun Mishra on Wednesday refused to withdraw from a five-judge constitution bench of the Supreme Court that will decide whether or not a verdict in a land acquisition case that he handled in 2018, while presiding over a three-judge bench, was correct or not.

“I am not recusing from hearing this matter,” Justice Mishra, heading the bench that also includes Justices Indira Banerjee, Vineet Saran, M.R. Shah and Ravindra Bhat, said.

The constitution bench on Wednesday passed a detailed judgment rejecting a petition for Justice Mishra’s recusal filed by landowners from Tamil Nadu, who said they had reasonable apprehension of bias given that Justice Mishra would be required to sit on judgment on his own verdict.

The written order had, however, not been uploaded on the official website of the Supreme Court till late evening.

The landowners from Tamil Nadu had pointed out that Justice Mishra, heading a three-judge bench in 2018, had ruled that acquisition proceedings would not lapse and the land would not be returned to owners after five years if they refused the compensation.

This judgment, which went in favour of the government, contradicted a 2014 ruling by another three-judge bench that said that acquisition proceedings would lapse after five years if the compensation was not paid to the landowners or accepted by them.

A three-judge bench headed by Justice Madan B. Lokur, which noticed the contradictory rulings, had in 2018 criticised the judgment passed by Justice Mishra on the ground that it amounted to judicial impropriety. One three-judge bench cannot overrule another three-judge bench but can only refer the issue to a five-judge or larger bench, it said.

The matter went to the Chief Justice of India, who decided that a constitution bench would be set up to decide which interpretation of the land acquisition law was correct. Justice Mishra has now been appointed as head of the constitution bench.

Appearing for the landowners, senior advocates Shyam Divan and Dinesh Dwivedi had insisted that Justice Mishra recuse himself to avoid any apprehension of bias on the part of the judge.

However, solicitor-general Tushar Mehta had submitted that there was no need for Justice Mishra to recuse himself as the Bar had full faith in his integrity.

“No, this is not the way it should be allowed to happen…. If we succumb to these demands, it would be nothing short of forum shopping and bench hunting. If we allow, it will destroy the independence of the judiciary,” the bench had said last week about the request for recusal.

After pronouncing the order, the bench asked parties to suggest legal questions that would be adjudicated upon. Later, the parties submitted the questions. The bench said it would commence the hearing from November 6.