In the recent turn of events, two contradictory decision of the Apex court has gained a lot of importance. Both the decisions have been rendered by the bench comprising of three judges. The first judgment is of Pune Municipal Corporation v. Harakchand Solanki (further referred to as PMC)which was rendered in the year 2014 and the second judgment is of Indore Development Authority v. Shailendra (further referred to as IDA case) whereby the later termed the former decision as Per Incuriam. Another three-judge bench passed an order staying the later decision as the bench was of the prima facie opinion that a decision rendered by a three-judge bench is binding on the bench of coordinate strength. A five-judge bench has been formed to settle the conflict between two decisions. It is pertinent to note that Justice Arun Mishra has been a part of IDA case authoring the majority judgment and CJI by exercising his administrative powers has included him in the five-judge bench to settle the dispute. Due to this the issue of bias has also been stemmed out in which Mishra J refused to recuse. Through this post, I would like to add clarity to the doctrine of per incuriam which was used by Justice Mishra in the IDA case to denude the judgment rendered by the coordinate bench.

Central Question  

The central question that revolved around these judgments was whether the term ‘paid’ includes deposits made in the court as mentioned in section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, (2013 Act)  or the mere deposit in the treasury suffices. 

The concerned subsection has been reproduced below:

“24. Land acquisition process under Act 1 of 1894 shall be deemed to have lapsed in certain cases.

(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said Section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:

Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under Section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.”

The interpretation of Paid

In the PMC case, it was held that the word ‘paid’ appearing in the impugned section is included within the ambit of deposit as mentioned under section 24 (2) and its attached proviso. Primarily the court concluded that the compensation to be brought within the ambit of paid has to be deposited in the court and mere deposit in the treasury cannot be held to be paid in terms of the said section. In the IDA case, it was held that the word paid is different from the ‘deposit’ as mentioned in the concerned section. The reasoning behind such an interpretation was that the word paid is used in subsection 2 whereas the word deposited has been used in the proviso attached to the said subsection. The proviso operates in a separate arena where the second subsection ceases to operate. The majority judgment further opined that the legislature using two separate terms within the same section was indicative of its intent that such words have to be construed differently and one should not be included within the definition/meaning of the other. I would like to point out that the reasoning opted by the IDA case seems to carry greater force in terms of statutory rules of interpretation. 

Per Incuriam and the Authority of a Coordinate Bench

In layman’s language, the term Per incuriam means when a decision has been rendered carelessly without taking into account certain principles that are binding on the court of law. It will be appropriate at this juncture to quote the lines from the judgment of A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 rendered by a seven-judge bench explaining the term per incuriam :

“Per incuriam” are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.”

It is important to clarify that overruling a decision is altogether a separate concept where the decision is considered fundamentally flawed that it cannot stand to be good law in the current state of affairs. In case of per incuriam, you do not consider the decision as inherently wrong but declare the decision as non-binding because it failed to consider authorities what it ought to for reaching the decision. The effect in both of them is the same that is the judgment is denuded of its precedential value but the former is permissible only by a larger bench whereas the latter is permissible even by the bench of coordinate strength. There have been several accusations indicating that IDA case has wrongly by a stroke of pen declared the PMC judgment as per incuriam. In my opinion, these accusations are blatantly false because it is well within the powers of the bench to declare the decision as per incuriam of the coordinate strength. The reasoning to render the PMC case as per incuriam could have been assailed but not the authority of the bench to render it per incuriam. It is also important to point out that the doctrine of per incuriam is an exception to Stare decisis and there is nothing wrong in rendering the judgment of the apex court per incuriam with proper reasoning.  The same has been declared in the seven judges constitutional bench judgment of A.R. Antulay whereby it was held:

But the point is that the circumstance that a decision is reached per incuriam merely serves to denude the decision of its precedent value. Such a decision would not be binding as a judicial precedent. A co-ordinate Bench can disagree with it and decline to follow it. A larger Bench can overrule such a decision. 

A judicial order is peculiar in the sense that it contains the reasons for resolving the issue at hand whereby giving the aggrieved party the scope of analysis and if deemed fit, it can also be filed for review. In IDA case the lone dissenting judge differed on the point of treating PMC case as per incuriam. He in his dissent has noted that the decision in the PMC case does not seem to be true and wherefore in his opinion, the judgment should be referred to a larger bench. With utmost respect, it is submitted that the learned judge himself agreed to the point that certain rules were not put forth before the court in the PMC case. His conclusion to not render the decision as per incuriam seems unjustifiable. The majority opinion rendered various reasons for terming the PMC case as per incuriam but it will be beyond the scope of this article to analyze each of them. I will be focusing on the rules that the concerned state legislatures formed which had the statutory force as per the Constitution of India.

The Fallacious Premise of Minority Opinion

The point of concern was the rules that were framed by the state legislatures under section 55 of the 2013 Act which has the force of a statue. These rules allow the compensation to be deposited in the treasury which the PMC case held to be invalid.  The dissenting judgment is based on the premise that something which is not evident in the judgment specifically cannot be said to be not considered. The relevant part has been reproduced herein below:

the discussion as a whole, if looked into, would make it clear that the Court while deciding the said judgment, discussed in detail about the failure to deposit in the court, so also, about the effect of deposit in treasury. Hence, in my considered opinion, merely because the Rules of certain States are not considered, the judgment in Pune Municipal Corpn. [Pune Municipal Corpn. v. HarakchandMisirimal Solanki, (2014) 3 SCC 183 : (2014) 2 SCC (Civ) 274] cannot be termed as per incuriam. In other words, merely because the Rules are not referred to specifically in the judgment, it cannot be said that there is non-consideration of the effect of the Rules.

Conclusion

From the above, it can be inferred that even the dissenting judge agreed on the point that certain rules were not mentioned in the judgment but fallaciously considered that these rules may have been considered by the judges while formulating a concrete opinion. This point in itself proves of the point that the majority correctly did not found certain rules in the PMC case and thereby reached to a conclusion that the decision was per incuriam and in my opinion, seems to be correct as well because to analyze the judgment, its authentic copy ought to be taken into account and not something of which there is no record of. As per the majority opinion, these rules have the binding force of law as per Article 283 of the constitution and such rules must have been harmoniously constructed to reach a concrete decision which the PMC case failed to do so. It is these rules that were lacking in the PMC case which led the majority to denude the IDA case of its precedential value. There were other reasons as well but this point has been cited to ensure that the majority and minority interpreted the non-mention of these rules differently but there was a consensus as to the fact that certain rules were not mentioned in the judgment and the non-consideration of them was crucial. The majority moved on a practical premise that when something was not found in the judgement it was not considered whereas the minority opinion proceeded on an imaginary ground that mere non-mention of the rules cannot lead to an inference that such rules were not considered. In my opinion, at least this should convincing enough to conclude that Mishra J while authoring his judgment did not sit with a predisposition of overruling a judgment rendered by the Hon’ble court. He did everything with a judicial approach within the prescribed authority.

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