The Supreme Court of India was pulled into another controversy on Wednesday when a three-judge bench headed by Justice Madan B Lokur raised questions of judicial discipline in an order passed by another three-judge bench on February 8 in a land acquisition case.

As a result, on Thursday, a two-judge bench headed by Justice Arun Mishra, who was part of the bench that passed the February 8 order, referred similar land acquisition cases that came before it to the Chief Justice of India. The order said:

“In view of the order of this Court dated 21.2.2018 in Special Leave Petition(C)...... CC 8453 of 2017 titled as State of Haryana and Others versus M/s G.D. Goenka Tourism Corporation Limited and Another, that has been placed before this Court, we consider it appropriate that these matters be referred to the Hon’ble the Chief Justice to constitute an appropriate Bench and to see whether we can proceed with the hearing or not. Since a larger issue is involved, we refer the matters to the Hon’ble Chief Justice to be dealt with by an appropriate Bench, as His Lordship may consider appropriate.

This reference was made despite the fact that the larger bench led by Justice Lokur made it clear on Wednesday that it would decide on the reference in the next hearing, and requested all other benches and the High Courts to defer hearing similar land acquisition matters.

These developments have brought back to the limelight the rumblings in the apex court, which started when four senior judges held an unprecedented press conference on January 12. The judges accused Chief Justice Dipak Misra of not following convention in allocating cases to various benches.

The fundamental question related to Wednesday’s controversy was how the three-judge bench, on February 8, overturned a judgement settled by another three-judge bench in 2014. In the Supreme Court, a judgement of a bench can be overturned only by a larger bench.

The controversy

On Wednesday, the bench led by Justice Lokur, which also had Justices Kurian Joseph and Deepak Gupta, began hearing cases that involved land acquisition in Punjab and Haryana.

The petitioners cited the February 8 judgement delivered by the bench comprising Justices Arun Mishra, AK Goel and Mohan M Shantanagoudar. This judgement had overturned certain facets of a judgement delivered in January 2014 by another three-judge bench comprising Justices RM Lodha, Lokur and Joseph. The 2014 case – Pune Municipal Corporation & Anr. v. Harakchand Misirimal Solanki & Ors primarily involved the interpretation of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. This section deals with what should be done in cases where land acquisition was initiated under the original 1894 Act, which was replaced by the 2013 Act.

In the 2014 judgement, the Lodha bench had held that if the state treasury retained the compensation amount without paying it to the land holder or depositing it in a competent court, this would enable the land holder to seek interest on the compensation.

On February 8, the bench comprising justices Arun Mishra, AK Goel and Shantanagoudar overturned the 2014 verdict by calling it per incuriam or lacking due regard for the law or facts. However, Shantanagoudar dissented. Therefore, the judgement became a 2:1 decision.

On Wednesday, the petitioners cited this February 8 verdict in their arguments. Lawyers, including former Attorney General Mukul Rohatgi, wanted to be heard as they have been engaged by clients in similar cases. They said the three-judge bench of Justice Arun Mishra should have referred the 2014 judgement to a larger bench if it did not agree with it.

It was argued that the February 8 decision “had unsettled a long standing statement of law and had very serious repercussions on land acquisition cases”.

Responding to this argument, Justice Joseph said: “I don’t want to remain silent on this issue. There are certain virgin principles which cannot be deviated from. The system exists on these holy principles. This Court should function as one institution.”

In its order on Wednesday, the Justice Lokur bench said that in the next hearing it would decide whether to refer the matter to a larger bench. It requested the High Courts not to deal with any cases relating to the interpretation of, or concerning, Section 24 of the Land Acquisition Act in the interim. It also requested other benches of the Supreme Court to defer hearings of matters on the subject. “Apart from anything else, deferring the consideration would avoid inconvenience to the litigating parties, whether it is the State or individuals,” the order said. The court then adjourned the matter to March 7.

Meanwhile, cases relating to land acquisition came up before the court of Justices Arun Mishra and Amitava Roy on Thursday. In their order, the judges referred the matters to the Chief Justice of India, to form an appropriate bench and decide if the cases could be heard by their bench. This was done despite the fact that the Justice Lokur bench, on Wednesday, indicated that it would decide whether the matter should be referred to a larger bench in the next hearing.

In November, following a controversy on orders passed in a petition seeking an investigation into a medical colleges scam in which a former Odisha High Court judge was involved, a five-judge bench of the Supreme Court made it clear that the chief justice alone was the master of the court and that it was only he who could decide on the formation of benches.