Arun Mishra’s conscience is clear, as is his “integrity before god,” the Supreme Court judge said in his courtroom on 15 October. He was responding to multiple parties seeking his recusal from a five-judge constitution bench formed to examine the correctness of two conflicting interpretations of a 2013 land acquisition law. Mishra was heading the bench. He had also authored one of the judgments in question. Both considered when compensation under the law is deemed paid.
Away from the media spotlight, just one day before he sat on the constitution bench that assembled to review his previous verdict and heard a plea for his own recusal, Mishra pronounced another judgment pertaining to the compensation provision under the 2013 law. On 14 October, in Shiv Kumar vs Union of India, Mishra, along with the judges MR Shah and BR Gavai, ruled that those who purchase a piece of land after the government has initiated acquisition proceedings on it—referred to as “subsequent purchasers”—cannot avail the benefits of compensation under the 2013 law. The latest judgment took great pains to set aside a 2017 judgment by the Supreme Court. Further, it not only reduced the scope of the 2013 law, but also revealed a significant contradiction in the court’s reasoning.
To understand the significance of Mishra’s latest judgment, it is necessary to revisit the two cases that ultimately led to the formation of the constitution bench. At the heart of all these cases lies Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The law repealed the Land Acquisition Act of 1894, and was enacted to protect the interests of those affected by the acquisition of property. Section 24 was a crucial element in this regard. It stated that any acquisition under the 1894 act in which the concerned government had not taken possession of the land or paid the due compensation for a period of five years or more would be deemed lapsed.
The 2013 act came to force on 1 January 2014, and one of the first issues on it that the Supreme Court had to adjudicate was the question of when compensation could be deemed paid, in Pune Municipal Corporation vs Harakchand Misirimal Solanki. The municipal corporation submitted that it had issued notices inviting landowners to receive compensation, who had refused to accept the amount. It had therefore submitted the compensation amount with the state treasury. This, it argued, should satisfy the requirement under Section 24, and allow the acquisition to be upheld. But a three-judge bench, comprising RM Lodha, Madan Lokur and Kurian Joseph, unanimously held that the compensation amount would have to either be considered paid to the landowners in question or deposited before the court for it to evade the mandate of Section 24.
Subsequently, various high court and Supreme Court judgments followed the precedent set in Pune Municipal Corporation—until February 2018, when another three-judge bench, led by Mishra, arrived at a contradictory interpretation of the 2013 act. In Indore Development Authority vs Shailendra, the Supreme Court ruled that if compensation is deposited with the state treasury because the landowners refused it, the acquisition cannot be said to have lapsed under Section 24. Mishra did not stop there. In his judgment, authored on behalf of AK Goel and himself, Mishra wrote that the judges had “given deep thinking whether to refer it to further Larger Bench.” They decided against it, he wrote, because the ruling in Pune Municipal Corporation was “per incuriam”—a legal maxim that means “through lack of care,” referring to an incorrect judgment.