Indore Development Authority Vs. Manohar Lal and Ors.

Judges: Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and S. Ravindra Bhat, JJ.

Facts:

A three-Judge Bench of this Court consisting of one of the Judge of the present Constitution Bench in Pune Municipal Corporation and Anr. v. Harakchand Misirimal Solanki and Ors. MANU/SC/0055/2014 had delivered a judgment interpreting Section 24 of the Right To Fair Compensation And Transparency In Land Acquisition, Rehabilitation And Resettlement Act, 2013 (Act of 2013).

In Indore Development Authority v. Shailendra (Dead) through Lrs. and Ors., MANU/SC/1549/2017, the matter was referred to a larger Bench consisting of one of the Judge of present Constitution Bench. The Bench has decided the matter, and the view was taken that in Pune Municipal Corporation (supra), the Court did not consider several aspects as to the interpretation of Section 24 of the Act of 2013. The decision mentioned above was accepted unanimously by the three Judges. However, as Pune Municipal Corporation (supra) was a judgment by a bench of coordinate strength, also, the two judges has opined that decision is per incuriam. However, one of the judge has opined that it would be appropriate to refer the matter to a larger Bench.

A Bench in another case, State of Haryana v. Maharana Pratap Charitable Trust (Regd.) and Anr. (Civil Appeal No. 4835 of 2015) has also referred the matter to the Hon'ble the Chief Justice of India to constitute an appropriate bench for consideration of the larger issue. Thus, Chief Justice of India, considered it appropriate to constitute present Constitution Bench to deal with all the issues in an apposite manner. A preliminary objection raised for recusal of Arun Mishra, J. on the ground that Constitution Bench consists of one of the Judges who were on a smaller panel and the correctness of the opinion cannot be, thus, judged by the Constitution Bench independently, as a final view has been expressed in Indore Development Authority (supra) wherein the decision in Pune Municipal Corporation (supra) has been held to be per incuriam. Thus, the Judge who has decided the matter in Indore Development Authority (supra) is pre-disposed to decide the matter only in a particular way.

Issues:

(i) Whether a Judge who has expressed an opinion in a smaller Bench and the case has been referred to a larger Bench, because of the conflict of the opinion or otherwise, can hear the matter in a larger bench?

Law:

Rule 8 of Delhi High Court Rules - Judge or Judges who refer a case shall ordinarily sit on the bench which considers the reference - The Judges or a Bench by whom any question or case is referred shall ordinarily be members of the Division Bench or Full Bench, as the case may be appointed to consider such question or case.

Contentions:

Appellants

(i) There is no question of recusal and as a matter of substance it is the practice of this Court that the Judges who have decided the matter earlier or have referred it are made part of the Bench.

(ii) The plea of bias or pre-disposition is not attracted in the matter of judicial decisions. The plea of bias or pre-disposition is based on extra-judicial factors. What the Court is required to answer is only a pure question of law, and there are occasions when Hon'ble, the Chief Justice of India, has considered it appropriate to constitute an appropriate bench having decided a case. Recusal of any Judge cannot be sought on the ground that the decision rendered by him in a smaller bench has to be considered by the larger bench.

(iii) The practice of this Court makes the law, and the Judges who have decided the matters in a smaller Bench have ordinarily formed quorum of the larger Benches. The question is of deciding the legal principle. In the Review jurisdiction and Curative Petitions; the same Judge hears the matter. There is nothing wrong in case the Judges who have heard the matter in smaller Benches form part of the larger bench. There is no question of any pre-disposition in such matters or bias, and as such, the decision rendered in smaller formation cannot be a ground for seeking recusal.

Respondents

(i) There is reasonable apprehension that the Judge may have some bias in dealing with the matter by a larger Bench.

(ii) A Judge could not sit in appeal to adjudge his judgment. The jurisdictions are primarily corrective jurisdictions under the hierarchal system, and professional as well as institutional integrity demands that the same person should not be a Judge at both levels. The Judge who has decided the matter may be pre-disposed to support the previous reasoning and, in that case, it would seem that he is or she is a Judge in his or her own cause.

(iii) The Indore Development Authority (supra) is wrongly decided. The Court or Tribunal should be above unfairness or bias. The Judge has to step down, in case he cannot impart justice impartially. The judge or judges concerned should excuse themselves and abstain from sitting in the case. A Judge cannot hear an appeal against his/her own decisions.

Analysis:

(i) There may not be even one Judge in this Court who has not taken a view one way or the other concerning Section 24 of the Act of 2013, either in this Court or in the High Court. If the submission is accepted, no Judge will have the power to decide such a matter on the judicial side. Judges have to deal with the cases every day in which similar or somewhat different questions are involved concerning the same provision. For having taken a view once, if recusal is to be made, it would be very difficult to get a Judge to hear and decide a question of law.

(ii) A Judge who had rendered any decision in a smaller combination is not disqualified from being part of a larger Bench when a reference is made to the larger bench. Rather, it is a consistent practice prevailing in various High Courts as well as of this Court to include the same Judge/Judges in larger Benches.

(iii) Rule 8 of Delhi High Court Rules contained in Chapter 3; Part C specifically provides that a Judge who referred a case has to sit on the larger Bench to consider the reference. Thus, based on the consistent practice, we find that no ground for recusal is made out.

(iv) Recusal has been prayed for on the ground of legal predisposition. Where recusal is sought on the ground, various questions arise for consideration. Firstly, legal pre-disposition is the outcome of a judicial process of interpretation, and the entire judicial system exists for refining the same. There is absolutely nothing wrong in holding a particular view in a previous judgment for or against a view canvassed by a litigant. No litigant can choose, who should be on the Bench.

(v) Furthermore, if a party or his Counsel can at length argue on the question of recusal of the Judge before him, he can also successfully question the correctness of a judgment rendered by him. A litigant has got the right to make arguments which suit his cause before a Judge/Judges having taken a contrary view earlier. Moreover, if it is open to one litigant to seek recusal and recusal is permitted, then the right has to be given to the opposite party to seek recusal of a Judge who may have decided a case against his interest. In case it is permitted to either side, that would end judicial independence.

(vi) Recusal upon an imagined apprehension of legal pre-disposition would, in reality amount to acceding to the request that a Judge having a particular view and leanings in favour of the view which suits a particular litigant, should man the Bench. It would not only be allowing Bench hunting but would also be against the judicial discipline and will erode the confidence of the common man for which the judicial system survives.

(vii) The entire judicial system is based on sound constitutional principles. The roster making power is bestowed on the Chief Justice of India so that litigants are not able to choose the Judges before whom they have to argue a matter. Once he has exercised his power, it is not for the Judges to choose. As per their oath, they have to discharge their duties without fear and favour and in a dispassionate manner without any ill will, bias towards litigants, or a cause.

(viii) The question which arises is whether merely delivering a judgment of which correctness is to be examined, would disqualifying a Judge from being part of the larger Bench. The answer to the question has to be in the negative as there is a consistent practice of this Court which has evolved that the Judges who have rendered a decision earlier in smaller combination, have also formed part of the larger Bench, and there are umpteen occasions when Judges have overruled their own view.

(ix) If requests for recusal are acceded to for the asking, litigants will be unscrupulously taking over the roster making powers of the Chief Justice and that would tantamount to interference with the judicial system, by the mighty to have a particular Bench by employing several means and putting all kinds of pressures from all angles all around.

(x) The Bench consists of five Judges. Each Judge may have his own view. They would not succumb to a view held by one of the judges. They may also have their own view in the matter. In case the prayer of the ones who demanded recusal is to be allowed, then they may want a Bench of 5:0 in their favour or 4 in favour and 1 against or 3 in favour and 2 against. That is not how the system can survive. The very idea of seeking recusal is inconceivable and wholly unjustified, and the prayer cannot be acceded to.

(xi) In the case of Supreme Court Advocates-on-Record Association and Anr. v. Union of India (recusal matter), where recusal of Justice Khehar was sought from the Constitution Bench, the first principle which this Court has discussed is the impartiality of a Judge. It has been observed that the first principle is that the Judge should be impartial. Merely having a legal opinion has no connection with impartiality. It may be within the purview of the legal correctness of the opinion. The second test is Latin maxim nemo judex in re sua i.e., no man shall be a Judge in his own cause. A judgment rendered by a Judge is not in his own cause.

(xii) Recusal is not to be forced by any litigant to choose a Bench. It is for the Judge to decide to recuse. The embarrassment of hearing the lengthy arguments for recusal should not be a compelling reason to recuse.

Conclusion:

(i) With respect to the observations by Justice Arun Mishra, J in his opinion, regarding the legal principles applicable, the bench is of the considered view that there is no legal impediment or bar to his participation to hearing the reference on the merits in the present Bench.

(ii) Justice Mishra's order has cited several previous instances where judges who rendered decisions in smaller bench compositions, also participated in larger bench formations when the reasoning (in such previous decisions) was doubted, and the issue referred to larger benches, for authoritative pronouncement.

(iii) The bench concur with reasoning and conclusions of Justice Mishra that no legal principle or norm bars his participation in the present Bench which is to hear the reference; the precedents cited and the practice of the court, point to the contrary, i.e. that the judge who decided a previous cause, finally, can - and very often has-participated in the later, larger bench to which such previous decision is referred for reconsideration.

Important Precedents:

Pune Municipal Corporation and Anr. v. Harakchand Misirimal Solanki and Ors. MANU/SC/0055/2014

Indore Development Authority v. Shailendra (Dead) through Lrs. and Ors., MANU/SC/1549/2017

Supreme Court Advocates-on-Record Association and Anr. v. Union of India