A hollow victory

Whistleblower judges Jasti Chelameswar and colleague Kurian Joseph, who had raised an alarm over a so-called 'preferred bench' overruling their verdict in a land acquisition case on the ground that it had been issued without 'due regard to law' now have the last laugh, with a new bench hearing a similar case going back to the line upheld by the 'mutiny' judges.

In a 2014 case involving Pune Municipal Corporation relating to the Land Acquisition Act, a three-judge bench led by then Chief Justice of India RM Lodha, including Justice Kurian Joseph, one of the revolting foursome led by Justice Chelameswar, issued a 2:1 majority verdict that a land acquisition would be deemed to have lapsed if compensation for the acquired land had not been paid to the landowner or deposited with a competent court and retained in the treasury.

But in a verdict issued in February 2018, a three-judge bench led by Justice Arun Mishra, one of the so-called 'preferred' benchers, overturned the 2014 judgment saying it had been pronounced without due regard to law and ruled that the Central government had authority over an acquired land even if the compensation was not paid.

Coming in the wake of the unprecedented press conference by four judges led by Chelameswar, the judgment had attracted much attention, especially since the new verdict broke the convention that Supreme Court benches of the same numerical strength cannot overrule each other's judgments. In case of any difference, it can only be referred to a bench of larger strength.

Anguished by the development, a three-member bench headed by whistleblower Judge Madan B Lokur, which included Justice Kurian, criticised Justice Mishra's bench for 'tinkering with judicial discipline'. Justice Kurian went to the extent of saying in the open court that such action would eventually cost the judicial institution. He emphasised that the correctness of a judgment can be doubted but a bench of similar strength cannot hold a judgment rendered by another bench as wrong.

The 2014 judgment was considered the settled law on land acquisition compensation until Justice Mishra's judgment overturned it. The judgment had, in fact, opened a Pandora's Box. It held that a landowner's refusal to accept compensation would not make the acquisition void. There was only a requirement to tender the compensation to fulfil the obligation of payment, it said.

In the latest twist, a new Supreme Court bench comprising Justices Sanjay Kishan Kaul and K M Joseph has ruled that the process of land acquisition would be flawed in the absence of actual receipt of compensation, noting that even though the right to property is no more Fundamental Right, it still remains a Constitutional Right.

The case relates to the acquisition by Sikkim's Agriculture Department of a plot measuring 8.36 acres in Dundung Block, Sang in East Sikkim for the purpose of building the Progeny Orchard Regional Centre. The land was recorded in two names: 1.29 acres in the name of the Maharaja of Sikkim and 7.07 acres in the name of Man Bahadur Basnett, father of the original appellant. Basnett's land was the subject matter of dispute.

The court said that the burden was on the state to prove that the process as envisaged under the relevant Act was followed and cited ample primary and secondary evidence on non-compensation. It observed that the Government had failed to establish the acquisition of land in accordance with the law. Emphasising on following the due process of land acquisition, the court asserted that even though rights in land are no more a Fundamental Right, still it remains a Constitutional Right under Article 300A of the Constitution of India.

The controversy over the judgments by Justices Lokur and Mishra had erupted at a time when concerns had been reignited about judicial decisions being marred by bias, bench preferences, lack of transparency, and all those issues raised at the famous, or rather infamous, press conference by the four senior judges. When judges spar in the open on issues other than judicial prudence and propriety, it indicates a deep-seated malady in the system, which has been plaguing our judiciary for some time.

Views expressed are strictly personal