Day 3: 23 October 2019
Today’s hearing was split into two sessions – the morning session during which the Bench rejected the application for Justice Arun Mishra’s recusal and the afternoon session when it framed the questions of law to be decided.
Bench rejects application for recusal
Pronouncing its order in open court, the Bench rejected the application for Justice Mishra’s recusal. While Justice Mishra wrote the lead opinion, a concurring opinion was delivered by the four other judges on the Bench. After pronouncing its order on recusal, the Bench prorogued the petitions to 2 pm for the framing of issues on the merits of the matter.
Read our plain english summary of the recusal order here.
Parties propose questions of law
When the matter was taken up for hearing in the afternoon, Solicitor General Tushar Mehta (‘SG’) proposed six issues for the consideration of the Bench:
Although Sr. Adv. Shyam Divan, appearing for some of the Respondents, agreed with the first five issues proposed by the SG, he suggested the following modifications to issue 6:
To this suggestion, Justice Mishra indicated that the Bench was open to it if the parties insisted. Sr. Adv.Divan responded that he was merely recommending it and not insisting on it being framed as one of the issues.
Thereafter, Sr. Adv. Dinesh Dwivedi, also for the Respondents, submitted that the effect of Section 31(2) of the 1894 Land Acquisition Act (‘Old Act’), too had to be examined for settling the issues before the Bench. The provision lays down the procedure to be followed by the government if the land owners refuse to accept compensation. Justices M.R.Shah and Vineet Saran agreed that this too would have to be considered for a conclusive determination.
At this point, Adv. Dhruv Mehta, submitted that other than the already suggested issues, the Bench also needed to examine whether Section 24(2) creates a fresh right of challenge for the land owners. Thus, he prayed the court to examine whether a land owner who had unsuccessfully challenged the award of compensation under the Old Act could mount a fresh challenge under Section 24 (2) of the New Act.
Court frames the issues
Upon these submissions, Justice Mishra began framing the issues with the caveat that they can always be corrected at a later stage.
The Bench combined issues 1 and 3 suggested by the SG to give shape to the first issue. Thus, it will examine the meaning of the words ‘paid’, ‘tender’ provided in Section 24 of the New Act and Section 31 of the Old Act. Connected to this, the Bench will also examine if a failure to deposit compensation in the reference court will lead to a lapse of acquisition, as provided for in Section 24 of the New Act.
SG’s suggestions for issues 2 and 4 were also accepted by the Court, with issue 4 being re-numbered as issue 3. Similarly, issue 5 too was accepted, forming issue 4 for the court.
Taking into account the suggestions of Sr. Adv. Shyam Divan, the court will examine, as the fifth issue, the question of whether a co-ordinate bench can declare a decision of another co-ordinate bench as per incuriam.
With the issues framed, Justice Mishra suggested that the hearing be commenced from 24 October. Nevertheless, upon a request by the counsels, the matter was adjourned to November 6.
(Court reporting by Siddhartha Iyer)