On Wednesday, the three-judge Bench had passed scathing observations against the February 8 judgment declaring that it was against "judicial discipline" and set aside all sacred principles of propriety and consistency followed by the Supreme Court as an institution all these years.
Justice Kurian's remarks about judicial discipline and disparate voices within the court was triggered while he was sitting along with Justices Madan B. Lokur and Deepak Gupta on February 21.
A three-judge Bench of the Supreme Court on Wednesday raised questions on the propriety of another three-judge Bench holding the judgment of a third three-judge Bench per incuriam - i.e., made without reference to a statutory provision or an earlier judgment that is relevant to the matter.
The February 8 judgment said that once the compensation amount for land acquired by Government or public agency has been unconditionally tendered but the land owner refuses to accept it, it can not be argued by the land owner that since the compensation has not been deposited in court or paid to him, the acquisition has lapsed.
On Wednesday, Justice Joseph observed it was his "painful concern" that "if this court is to remain as one, it should be one and you have to make it one. "Judicial discipline" has become a magic word to target us".
The order passed by the three-judge Bench yesterday had requested other Benches to defer similar cases so that the three-judge Bench could consider whether the matter should be referred to a larger Bench or not.
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The catch was that the Pune Municipal Corporation judgment was also rendered by a three-judge Bench which had Justices Madan Lokur and Kurian Joseph on it. "Such a system works on hierarchy and it needs to be preserved".
After being apprised of Wednesday's order, the Justice Mishra-led bench ordered, "since a larger issue is involved, we refer the matter to the CJI to be dealt with by an appropriate bench". The bench put the matter for consideration on March 7 to decide if it can be referred to a larger bench. "We are not going into the merits or correctness of the decision by Justice Mishra's bench".
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.
The court had also then held that it will not be open to the person, who has refused the compensation, to raise the point that since the amount has not been deposited in court or paid to him, the acquisition has lapsed.
At the outset, senior advocate Mukul Rohatgi said that due to the recent verdict, a two judge bench of Justice Arun Mishra and Justice Amitava Roy has been dismissing the cases in the wake of verdict. On 16 February, some cases were disposed. In this case, since both Benches composed of three judges, the Bench felt the matter had to go to a Bench of higher composition.
During the hearing today, Justice Mishra, who was heading the three-judge bench which had delivered the February 8 verdict, said the bench had taken a "considered view" in its judgement running into around 200 pages but "probably nobody would have read it completely". "That's the judicial discipline adopted by apex court". We had pondered (while writing the February 8 judgment) over the issue - whether the matter required to be referred to a larger bench given the three-judge bench's 2014 judgment, and then took a conscious decision (to term it "per incurium" and overrule it).