REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) NOS.9036­9038 OF 2016

INDORE DEVELOPMENT AUTHORITY  ..PETITIONER(S)

VERSUS

MANOHAR LAL & ORS. ETC. ..RESPONDENTS

WITH

CIVIL APPEAL NOS.19532­19533 OF 2017

SPECIAL LEAVE PETITION (C) NOS.9798­9799 OF 2016

SPECIAL LEAVE PETITION (C) NO. 17088­17089 OF 2016

SPECIAL LEAVE PETITION (C) NO.37375 OF 2016

SPECIAL LEAVE PETITION (C) NO.37372 OF 2016

SPECIAL LEAVE PETITION (C) NOS.16573­16605 OF 2016

SPECIAL LEAVE PETITION (C) NO....CC NO. 15967 OF 2016

CIVIL APPEAL NO.19356 OF 2017

CIVIL APPEAL NO.19362 OF 2017

CIVIL APPEAL NO.19361 OF 2017

CIVIL APPEAL NO.19358 OF 2017

CIVIL APPEAL NO.19357 OF 2017

CIVIL APPEAL NO.19360 OF 2017

CIVIL APPEAL NO.19359 OF 2017

SPECIAL LEAVE PETITION (C) NOS. 34752­34753 OF 2016

SPECIAL LEAVE PETITION (C) NO.15890 OF 2017

CIVIL APPEAL NO.19363 OF 2017

CIVIL APPEAL NO.19364 OF 2017

1

CIVIL APPEAL NO.19412 OF 2017

M.A. 1423 OF 2017 IN CIVIL APPEAL NO.12247 OF 2016

SPECIAL LEAVE PETITION (C) NO.33022 OF 2017

SPECIAL LEAVE PETITION (C) NO.33114 OF 2017

SPECIAL LEAVE PETITION (C) NO.33127 OF 2017

M.A. 1787 OF 2017 IN CIVIL APPEAL NO.10210 OF 2016

M.A. 1786 OF 2017 IN CIVIL APPEAL NO.10207 OF 2016

M.A. 45 OF 2018 IN CIVIL APPEAL NO.6239 OF 2017

SPECIAL LEAVE PETITION (C) NO.16051 OF 2019

DIARY NO. 23842 OF 2018

SPECIAL LEAVE PETITION (C) NO.30452 OF 2018

CIVIL APPEAL NO.4835 OF 2015

SPECIAL LEAVE PETITION (C) NOS.30577­30580 OF 2015

O R D E R

ARUN MISHRA, J.

1. The question of interpretation of Section 24 of the Right to Fair

Compensation and Transparency in Land Acquisition, Rehabilitation

and Resettlement Act,  2013  (for short, 'the Act of  2013'),  has been

referred to a five­Judge Constitution Bench of this Court.

2. A three­Judge Bench of this Court in Pune Municipal Corporation

& Anr. v. Harakchand Misirimal Solanki & Ors. (2014) 3 SCC 183, had

delivered a judgment interpreting section 24 of the Act of 2013.   In

Yogesh Neema & Ors. v. State of Madhya Pradesh (2016) 6 SCC 387, a

two­Judge Bench, doubted the decision of  Sree Balaji Nagar

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Residential Assn. v. State of Tamil Nadu (2015) 3 SCC 353 and referred

the matter to a larger Bench.

3. Yet in  another  Civil  Appeal  No.20982 of  2017  arising out of

S.L.P. (C) No.2131 of 2016 (Indore Development Authority vs.

Shailendra (Dead) through Lrs. & Ors.,  2018 SCC Online SC 100) the

matter was referred to a larger Bench on 7.12.2017.   The following

observations were made in Indore Development Authority (supra):

“19. It was also urged that this Court is also bound to prevent the abuse of process of law.   The cases which  have  been concluded are  being revived.   In  spite  of  not  accepting the compensation deliberately and statement are made in the Court that they do not want to receive the compensation at any cost,  and they are  agitating  the matter  time and again after having lost the matters and when proceedings are kept pending by interim orders by  filing successive petitions,  the provisions of section 24 cannot be invoked by such landowners.

20. There is already a reference made as to the applicability of section 24 in SLP (C) No.10472/2008 – Yogesh Neema & Ors v. State of M.P. & Ors.  vide order dated 12.01.2016.   There are several other issues arising which have been mentioned above but have not been considered in Pune Municipal Corpn. (supra).  Thus,  here is  a  case  where the  matter  should be considered by a larger Bench.  Let the matter be placed before Hon’ble the Chief Justice of India for appropriate orders.”

4. In Indore Development Authority v. Shailendra (Dead) thr. Lrs. &

Ors. (supra), the bench consisting of one of us, namely, Arun Mishra,

J.,  Adarsh Kumar Goel,  J.  and Mohan M. Shantanagoudar,  J.  has

decided the  matter, and the  view taken is that in  Pune  Municipal

Corporation  (supra), the Court did not consider several aspects as to

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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, two of us, namely, myself and Adarsh

Kumar Goel, J. opined that decision is per incuriam.  However, Mohan

M. Shantanagoudar, J. opined that it would be appropriate to refer the

matter to a larger Bench.   In the majority opinion in  Indore

Development  Authority  (supra), the  questions formulated  have  been

answered thus:

“228. Our answers to the questions are as follows:  

Q. No. I:­ The word 'paid' in section 24 of the Act of 2013 has the same meaning as 'tender of payment' in section 31(1) of the Act of 1894. They carry the same meaning, and the expression 'deposited' in section 31(2) is not included in the expressions 'paid' in section 24 of the Act of 2013 or in 'tender of payment' used in section 31(1) of the Act of 1894. The words 'paid'/tender' and 'deposited' are different expressions and carry different meanings within their fold.   

In section 24(2)  of the Act  of  2013  in the expression 'paid,' it is not necessary that the amount should be deposited in Court as provided in section 31(2) of the Act of 1894. Non­ deposit of compensation in Court under section 31(2) of the Act  of 1894 does not  result in a  lapse of acquisition under section 24(2) of the Act of 2013. Due to the failure of deposit in Court, the only consequence at the most in appropriate cases may be of a higher rate of interest on compensation as envisaged under section 34 of the Act of 1894 and not lapse of acquisition.

Once the amount of compensation has been unconditionally tendered, and it is refused, that would amount to  payment, and the obligation under section 31(1) stands discharged, and that amounts to the discharge of obligation of payment under section 24(2) of the Act of 2013 also. It is not open to the person who has refused to accept compensation, to urge that since it has not been deposited in Court, the acquisition has  lapsed.  Claimants/landowners,  after  refusal,

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cannot take advantage of their own wrong and seek protection under the provisions of section 24(2).

Q.  No. II:­ The  normal  mode of taking  physical possession under the land acquisition cases is drawing of Panchnama as held in Banda Development Authority (supra).  

Q. No. III:­ The provisions of section 24 of the Act of 2013, do not revive barred or stale claims such claims cannot be entertained.   Q. No. IV:­ Provisions of section 24(2) do not intend to cover the period  spent  during litigation  and when  the authorities have been disabled to act under section 24(2) due to the final or interim order of a court or otherwise, such period has to be excluded from the period of five years as provided in section 24(2) of the Act of 2013. There is no conscious omission in section 24(2) for the exclusion of a period of the interim order. There was no necessity to insert such a provision. The omission does not make any substantial difference as to legal position.  

Q. No. V:­ The principle of  actus curiae neminem gravabit  is applicable, including the other common law principles for determining the questions under section 24 of the Act of 2013. The period covered by the final/ interim order by which the authorities 196 have been deprived of taking possession has to be excluded. Section 24(2) has no application where Court has quashed acquisition.”

Question Nos.2, 3, 4, and 5, which have been decided, did not

arise in Pune Municipal Corporation (supra). Question No.2 was a

general question with respect to the mode of taking possession under

the land acquisition cases.   Remaining question arose out of  Yogesh

Neema (supra).

5. A three­Judge Bench of this Court on 21.2.2018 requested the

other benches to defer the hearing until a decision, one way or the

other, on the issue whether the matter should be referred to the larger

Bench or not.

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6. A Division Bench presided by Adarsh Kumar Goel, J. on

22.2.2018 in Indore Development Authority v. Shyam Verma and Ors.,

(S.L.P. (C)  No.9798  of  2016) considered it appropriate to refer the

matter to Hon’ble the Chief Justice of India to refer the issues to be

resolved by a larger Bench at the earliest.

7. On 22.2.2018, a Bench consisting of myself and Amitava Roy, J.

have in State of Haryana v. Maharana Pratap Charitable Trust (Regd.)

&  Anr.  (Civil  Appeal  No.  4835 of  2015) referred the  matter to the

Hon’ble the Chief Justice of India to constitute an appropriate bench

for consideration of  the larger issue. Thus, it is apparent that two­

division Benches, i.e., one consisting of myself and another consisting

of  Adarsh Kumar Goel,  J.  referred  the matter to  Hon’ble  the Chief

Justice of India.  Hon'ble, the  Chief Justice of India, considered it

appropriate to constitute  a Constitution Bench to  deal  with all the

issues in an apposite manner.  

8. The case was listed before a five­Judge Constitution Bench on

6.3.2018.  The Constitution Bench observed that it would consider all

the aspects including the correctness of the decision of Pune Municipal

Corporation  (supra) and the other judgments following the said

decision  as  well  as the judgments rendered in  Indore  Development

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Authority (supra).  Thus, all the questions are kept open to be decided.

No particular question has been referred to the larger bench.   After

that, Hon'ble, the Chief Justice of India has constituted this Bench to

decide the reference.  

9. Mr. Shyam Divan, Mr. Dinesh Dwivedi and Mr. Gopal

Sankarnarayanan, learned Senior Advocates on behalf of the

respondents, have raised a preliminary objection for recusal of one of

us, namely; 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

pre­disposed to decide the matter only in a particular way.  It was also

submitted that there is reasonable apprehension that the Judge may

have some bias in dealing with the matter by a larger Bench. As such,

one of  us,  namely;  Arun Mishra,  J.  should recuse.   It  was  further

submitted that 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

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levels.  The Judge who has decided the matter may be pre­disposed 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.  The learned Counsel

for the respondents are of the view that 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.

10. Per contra, Shri Tushar Mehta, Learned Solicitor General, Shri

Mohan Parasaran,  Shri  Anoop Chaudhary  and Shri  Vivek  Tankha,

learned Senior Advocates submitted that 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. They have cited several decisions to the

effect that Judges who have delivered a Judgment in a three­Judges

Bench formed part of a five­Judges Bench or the larger Benches which

decided the matter.  The plea of bias or pre­disposition is not attracted

in the matter of judicial decisions.  The plea of bias or pre­disposition

is based on extra­judicial 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

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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.  

11. Learned Solicitor General submitted that a tendency is growing

in that as soon as important matters are listed, particular articles are

written in the newspapers concerning the Constitution of the bench or

to influence the decision on merits of a case. Newspaper articles are

written to influence  Court.   The very independence  of the judicial

system is at stake,  if in this kind of scenario, recusal  is sought by

powerful lobbies, and any recusal would be defeating the very oath of

the office which a Judge takes.

12. Shri Mohan Parasaran, learned Senior Counsel has also pointed

out that 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 pre­disposition in such matters or

bias, and as such, the decision rendered in smaller formation cannot

be a ground for seeking recusal.   

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13. The first question before us is 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.  For finding an

answer to the same, we have to look into the practice of this Court.   

14. Shri M.C. Setalvad, in his autobiography “My Life, Law and other

things” has referred in Chapter 12 the events between 1955 to 1969.

He has referred to one of the important decisions of this Court

delivered by S.R. Das, J., who was the then Acting Chief Justice.   It

was  the  Bengal Immunity  case. In 1953, a bench presided over by

Chief  Justice Sastri  of  which Justice Bhagwati was a member held

that State could impose sales tax on goods delivered for consumption

in that State, even though the sale was an inter­State sale as held in

State  of  Bombay v.  United  Motors India  Ltd.,  1953 SCR 1069 with

Justice Bose and Justice S.R. Das, Justice Bose delivered a dissenting

judgment and S.R. Das, J. as a Junior Judge had also expressed a

contrary opinion in another decision.   

15. The same question arose in Bengal Immunity Co. Ltd. v. State of

Bihar,  1955 (2) S.C.R. 603, which came up when S.R. Das, J. was

acting as the Chief Justice. S.R. Das, J. who held strong views on the

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matter, had the matter placed before larger Bench of seven Judges,

including the two, Justice Bose and Justice Bhagwati, who had

participated in the earlier decision. Justice Bhagwati, who had formed

part of the majority in the  United Motors  case (supra), agreeing with

the view of Chief Justice Sastri, had reversed his former view, giving

his reasons  in detail  and held that  earlier  decision was erroneous.

Following are the extracts  from "My Life,  Law and other things" by

M.C. Setalvad :   

“One of the important decisions of the Supreme Court delivered while S.R. Das was the Chief Justice, was the Bengal Immunity Case.  That case had an interesting history.   Article 286 of the Constitution (as it then stood) prohibited a State Legislature from imposing sales tax on transactions of inter­ State sales and sales in the course of export.  The Article was not, however, happily worded. In 1953, a Bench of the Supreme Court presided over by Chief Justice Sastri, of which Justice Bhagwati was a member, held that a State could impose sales tax on goods delivered for consumption in that State, even though the sale was an inter­State sale1. This decision was contrary to the express provision of the Constitution that Parliament alone could authorise the imposition of a tax on sales in the course of inter­State sales and was based on an explanation to Article 286(1)(a), which was not applicable.   Justice Bose had delivered a dissenting judgment, and S.R. Das as a puisne judge had also expressed a contrary opinion in another decision.

The  same  question  arose in  Bengal Immunity  Co.  Ltd.     v. State of Bihar   2    which came up when S.R. Das was acting as the Chief  Justice.  The Bengal Immunity  Co.  manufactured medicinal  products in  Bengal and  sold them all over India including Bihar.  The Company had no office or agent in Bihar but the Bihar sales tax authorities sought to compel the Company to register as a dealer in Bihar and pay sales tax on the ground that goods delivered in Bihar for consumption in Bihar as a direct result of the sale were liable to sales tax in Bihar even though the sale had taken place in Bengal.   The view of the State of Bihar was in accordance with the decision of the Supreme Court in the United Motors Case but Das, who held strong views in the matter, had the matter placed before a

1 State of Bombay v. United Motors (India) Ltd., (1953) S.C.R. 1069. 2 (1955) 2 S.C.R. 603.

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larger Bench of seven judges including two, Justice Bose and Justice Bhagwati, who had participated in the earlier decision.

The matter was of vital importance to the States, because under the view expressed by Chief Justice Sastri in the United Motors Case,  one State – the State in which goods had been delivered for consumption as a direct result of the sale – would be entitled to levy sales tax on such transactions, while, under the other view, no State at all would be able to tax the goods, as the transaction of sale would be an inter­State sale.   The Centre alone could make a law for levying a sales tax on inter­ State sales.   There is little doubt that the somewhat strained construction put upon the Explanation to Article 286(1)(a) by Chief Justice Sastri and the majority was due to the consideration that the sources of revenue of the States under the  Constitution  which  were  already  slender  should  not  be diminished by denying to the States the opportunity of levying sales tax altogether in such cases.

Notices  were issued  to  all the States  and many of them intervened by their Advocates­General. N.C. Chatterjee appeared for the Bengal Immunity Company, and Lal Narayanan  Sinha, then the  Government  Advocate  of  Bihar, appeared for the State of Bihar. I intervened on behalf of the State of West Bengal.   Sikri, as the Advocate­General, represented the State of East Punjab.

At the outset arose the question whether the Supreme Court could overrule  its previous decision if it  was satisfied that it was erroneous. That was the first occasion on which the Court was called upon to deal with this important question.   

The Court naturally considered the practice followed in other final Courts of appeal.  The Privy Council had held that though it was not absolutely bound to follow its earlier decisions it  would seldom differ from them in constitutional matters as they would have been acted upon both by Governments and subjects.  The United States Supreme Court had on a number of occasions expressly overruled its previous decisions. The majority of the Supreme Court including Das preferred to follow the American practice.  Das pointed out the difference between the position in England where the House of Lords had held that it was bound by its earlier decisions3 and India and observed:

But, in a  country governed by a  federal  constitution, such as the United States of America and the Union of India are, it is by no means easy to amend the Constitution, if an erroneous interpretation is put upon it by this Court. An erroneous interpretation to the Constitution may quite conceivably be perpetuated or may at any rate remain unrectified for considerable time to the great detriment to public well­being.   The considerations adverted to in the decisions of the Supreme Court of America quoted above are, therefore, apposite and apply in full force in determining whether a previous decision of this Court should or should not

3. In England the position has since changed; the House of Lords is no longer bound by  its own decisions.

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be disregarded or overruled   There is nothing in our Constitution which prevents us from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public.

He then proceeded to point out a number of circumstances which made it necessary to set right what he considered to be the harmful effects of the earlier decision which he believed to be erroneous.   He ultimately formulated the governing principle in these words:  

Reference is made to the doctrine of finality of judicial decisions and it is pressed upon us that we should not reverse our previous decision except in cases where a material provision of law has been overlooked or where the decision has proceeded upon the mistaken assumption of the continuance of a repealed or expired statute and that we should not differ from a previous decision merely because a contrary view appears to us to be preferable. It is needless for us to say that we should not lightly dissent from a previous pronouncement of this Court.  Our power of review, which undoubtedly exists, must  be  exercised  with  due  care  and caution  and only for advancing the public well­being in the light of the surrounding circumstances of each case brought to our notice; but we do not consider it right to confine our power within rigidly fixed limits, as suggested before us.

The minority, consisting of three Judges, did not, however, accept this position.

On the merits, the majority of the Court consisting of four judges, including the acting Chief Justice, came to the conclusion that the provisions of several parts of Article 286 made it clear that it had to deal with different topics and one part could not be projected or read into another.   The conclusion reached was that the Explanation to clause (1) (a) could not  be  ultimately  extended to  clause  (2) either  as  an exception or as a proviso and read as  limiting the ambit of clause (2).   Until Parliament provided otherwise by law in exercise of its powers under clause (2) of the Article, no State could impose any tax on sales or purchases taking place in the course of inter­State trade or commerce.  The decision of Chief Justice  Sastri to the extent that it  decided to the contrary could not be accepted as well­founded on principle or authority.

The dissenting view was expressed in powerful opinions by each of the three dissenting Judges.   They took the view that the scheme of the Article was that it fixed the situs of the sales with a view to avoid multiple taxation.   For that purpose, it divided sales into two categories, “inside sales” and “outside sales”, and enacted that a State cannot tax an outside sale. When, in the same context, the Explanation declared that a sale must be deemed to have taken place in the State in which the goods are delivered for consumption,  its purpose clearly was to take such sales out of inter­State trade and stamp them with the character of inter­State sales.

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The most  powerful  dissent  was  that  delivered  by  Justice Aiyar, whose judgment was the most exhaustive and the longest of the judgments delivered by the various Judges.  One of the notable judgments in the case was that of  Justice Bhagwati who had formed part of the majority in the     United Motors case,    agreeing with the view of Chief Justice Sastri.  He reversed his former view with skill, giving his reasons in detail. He had the courage  to  state that  his opinion  in the earlier decision “was clearly  erroneous and public interest  demand the same should be reversed.”

(emphasis supplied)

16. In M/s. Ujagar Prints and Ors. (II) v. Union of India & Ors. (1989)

3 SCC 488, a Constitution Bench of this Court was constituted

consisting of  R.S. Pathak, C.J.,  Sabyasachi Mukherji,  S. Natarajan,

M.N. Venkatachaliah and S. Ranganathan, JJ.   The question which

arose for consideration was the correctness of the decision in Empire

Industries Ltd. v. Union of India (1985) 3 SCC 314, which was decided

by a Bench consisting of three­Judges, namely S. Murtaza Fazal Ali, S.

Varadarajan, and Sabyasachi Mukherji, JJ. Sabyasachi Mukherji, J.

delivered the judgment  on his  behalf and S.  Murtaza  Fazal  Ali,  J.

Varadarajan partly concurred.   The matter was referred to examine

the correctness of the view of Justice Sabyasachi Mukherji expressed

for the Court in Empire Industries Ltd. v. Union of India  (supra).   The

view taken in the previous decision by Sabyasachi Mukherji, J., was

held to be good law.  It was a case where the correctness of the view

taken in  Empire Industries  case (supra) on certain aspects was

doubted by another Bench of this Court in M/s. Ujagar Prints v. Union

of India  (1986) Supp. SCC 652.  Accordingly, the matter was referred

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to a five­judge Bench. Sabyasachi Mukherji, J. was one of the

members of the  Bench  which  affirmed  his  decision in the  Empire

Industries case (supra).

17. There is yet  another instance  of  a  Constitution  Bench which

comprised of Y.V. Chandrachud, C.J., P.N. Bhagwati, S. Murtaza Fazal

Ali, Amarendra Nath Sen, P. Balakrishna Eradi, JJ. in the matter of

Gyan Devi Anand v. Jeevan Kumar & Ors.  (1985) 2 SCC 683, where

the question which arose was whether statutory tenancy is heritable.

In Gyan Devi Anand (supra), the correctness of the decision in Ganpat

Ladha v.  Sashikant Vishnu Shinde,  (1978) 2 SCC 573 came up  for

consideration. The decision in  Ganpat Ladha’s  case had been

overruled, and  Damadilal v. Parashram,  (1976) 4 SCC 855 was

affirmed.  The Court has observed thus:

“35. In our opinion, the view expressed by this Court in Ganapat Ladha v. Sashikant Vishnu Shinde, (1978) 2 SCC 573 and the observations made therein which we have earlier quoted,  do  not lay down the correct law. The said decision does  not  properly construe the  definition  of the ‘tenant’ as given in Section 5(11)(b) of the Act and does not consider the status of the tenant, as defined in the Act, even after termination of the  commercial tenancy. In  our judgment in Damadilal  v.  Parashram,  (1976)  4  SCC 855, this  Court  has correctly  appreciated the status  and  the legal  position  of a tenant who continues to remain in possession after termination  of the contractual tenancy.  We  have quoted  at length the view of this Court and the reasons in support thereof. The view expressed by a seven Judge Bench of this Court in  Dhanapal Chettiar v. Yesodai Ammal,  (1979) 4 SCC 214 and the observations made therein which we have earlier quoted, lend support to the decision of this Court in Damadilal case. These decisions correctly lay down that the termination of the contractual tenancy by the landlord does not bring about a change in the status of the tenant who continues to

15

remain in possession after the termination of the tenancy by virtue of the provisions of the Rent Act. A proper interpretation of the definition of tenant in the light of the provisions made in the Rent Acts makes it clear that the tenant continues to enjoy an estate or interest in the tenanted premises despite the termination of the contractual tenancy.”

18. Justice P.N. Bhagwati concurred with the view and overruled his

own decision in  Ganpat Ladha’s case  (supra).   Justice Bhagwati has

observed thus:

 “3. On November 6, 1960 the appellant­landlord filed a suit for eviction which is now before us. On August 30, 1962, the first  date  of  hearing, the issues  were framed.  On June 18, 1963, the trial court decreed the suit on the following findings: the notice to quit was valid and duly served; the arrears of rent were properly demanded under Section 12(2) of the Act; the demand was not complied with in accordance with law by the tenant within a month of the demand; the case was governed by the provisions of Section 12(3)(b) and not by the provisions of Section  12(3)(a) because a dispute about the fixation of standard rent was still  pending when the notice demanding standard rent was given; nevertheless, the tenant was not entitled to the protection of Section 12(3)(b), since he had not paid the rent regularly in accordance with the conditions under which the protection of Section 12(3)(b) could be given to him.”

19. Also,  in the landmark decision of  Kesavananda Bharati  v.  the

State of Kerala (1973) 4 SCC 225, the earlier view held by this Court in

Sajjan Singh v.  State of Rajasthan  1965 AIR SC 845 was overruled

though some of the Hon’ble Judges in the two cases were common.

20. In  Hyderabad Industries Limited and Anr.  v.  Union of India  &

Ors. (1995) 5 SCC 338, a three­Judge Bench of this Court consisting

of A.M. Ahmadi, C.J., S.P. Bharucha, and K.S. Paripoornan, JJ.

doubted the  correctness  of the view  taken in  Khandelwal  Metal  &

16

Engineering Works v. Union of India (1985) 3 SCC 620 and referred the

matter to a larger Bench.   The larger bench consisted of S.P.

Bharucha, B.N. Kirpal, S. Rajendra Babu, Syed Mohammed Quadri,

and M.B. Shah, JJ. They answered the reference reported in

Hyderabad Industries Ltd. & Anr. v. Union of India & Ors. (1999) 5 SCC

15.  It is significant to note that S.P. Bharucha, J., who had doubted

the correctness of the decision and referred the matter to a

Constitution Bench, has overruled the earlier view on certain grounds.

21. In M/s. Cloth Traders (P) Ltd. v. Additional C.I.T., Gujarat­I, (1979)

3 SCC 538, a three­Judge Bench consisting of P.N. Bhagwati,  D.A.

Desai,  and A.D. Koshal,  JJ. decided the question of inter­corporate

dividends.   The correctness of this decision was taken up for

consideration before a Constitution Bench of Y.V. Chandrachud, C.J.,

P.N. Bhagwati, Amarendra Nath Sen, D.P. Madon, M.P. Thakkar, JJ.

in Distributors (Baroda) Pvt. Ltd. v. Union of India & Ors., (1986) 1 SCC

43, in which the decision in  M/s. Cloth Traders (P) Ltd. v. Addl. CIT,

Gujarat  (supra), was overruled.   P.N. Bhagwati, J. delivered the

judgment for the Constitution Bench.   He was also the author of the

earlier judgment in  M/s. Cloth Traders (P) Ltd. v. Addl. CIT, Gujarat

(supra), which had been overruled. This Court has observed thus:

“19. But, even if in our view the decision in M/s. Cloth Traders (P) Ltd. v. Additional C.I.T., Gujarat­I,  (1979) 3 SCC 538 is erroneous, the question still remains whether we should

17

overturn  it.  Ordinarily  we would be  reluctant to  overturn a decision given by a Bench of this Court, because it is essential that there should  be continuity  and  consistency in judicial decisions and law should be certain and definite. It is almost as important that the law should be settled permanently as that it should be settled correctly. But there may be circumstances where public interest demands that the previous decision be reviewed and reconsidered. The doctrine of stare decisis should not deter the Court from overruling an earlier decision, if it is satisfied that such decision is manifestly wrong or proceeds upon a mistaken assumption in regard to the existence or continuance of a statutory provision or is contrary to another decision of the Court. It was Jackson, J. who said in his dissenting opinion in  Massachusetts v. United States 333 US 611: “I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.” Lord Denning also said to the same effect when he observed in  Ostime v. Australian Mutual Provident Society (1960)  AC 549:  “The doctrine of  precedent  does not  compel Your Lordships to follow the wrong path until you fall over the edge of the cliff.” Here we find that there are overriding considerations which compel us to reconsider and review the decision in  Cloth Traders case  (supra). In the first place, the decision  in  Cloth Traders case  (supra) was rendered by this Court on May 4, 1979 and immediately thereafter, within a few months, Parliament introduced Section 80­AA with retrospective effect from April 1, 1968 with a view to overriding the interpretation  placed  on  Section  80­M  in  Cloth  Traders case (supra). The decision in Cloth Traders case (supra) did not therefore hold the field for a period of more than a few months, and  it  could not be said that any assessee was misled  into acting to its detriment on the basis of that decision. There was no decision of this Court in regard to the interpretation of sub­ section (1) of Section 80­M prior to the decision in  Cloth Traders case (supra), and there was therefore no authoritative pronouncement of this Court on this question of interpretation on which an assessee could claim to rely for making its fiscal arrangements. The only decision in regard to the interpretation of  sub­section  (1)  of Section 80­M given by any High Court prior to the decision in Cloth Traders case (supra), was that of the Gujarat High Court in Addl. CIT v. Cloth Traders Pvt. Ltd. (1974) 97 ITR 140 (Guj.) and that decision took precisely the same view which we are inclined to accept in the present case. It is therefore difficult to see how any assessee can legitimately complain that any hardship or inconvenience would be caused to it if the decision in Cloth Traders case was overturned by us. If despite the decision of the Gujarat High Court in Addl. CIT v. Cloth Traders Pvt. Ltd.  the assessee proceeded on the assumption, now found to be erroneous, that the Gujarat High Court decision was wrong and the deduction permissible under sub­section (1) of Section 80­M was liable to be calculated with reference to the full amount of dividend

18

received by the assessee, the assessee can have only itself to blame.  Knowing  fully well that the Gujarat  High Court  had decided the question of interpretation of sub­section (1) of Section 80­M in favour of the Revenue and there was no decision of this Court taking a different view, no prudent assessee could have proceeded to make its financial arrangements on the basis  that the decision of the Gujarat High Court was erroneous. Moreover, we find, for reasons we have already discussed, that the decision in Cloth Traders case is manifestly wrong because it has failed to take into account a very  vital factor,  namely, that the  deduction  required to  be made under sub­section (1) of Section 80­M is not from the gross total income but from “such income by way of dividends”. There is also another circumstance which makes it necessary for us to reconsider and review the decision in Cloth Traders case, and that is the decision in  Cambay Electric Supply Co.  case (1978) 2 SCC 644. The decision in  Cloth Traders case  is inconsistent with that in  Cambay Electric Supply Co. case. Both cannot stand together. If one is correct, the other must logically be wrong and vice versa. It is therefore necessary to resolve the conflict between these two decisions and harmonise the law and that necessitates an inquiry into the correctness of the decision in Cloth Traders case. It is for this reason that we have reconsidered and reviewed the decision in  Cloth Traders case,  and on such reconsideration and review, we have come to the conclusion that the decision in Cloth Traders case is erroneous and must be overturned.”

This Court has observed that law should be settled permanently

and that it should be settled correctly.   There may be circumstances

where public interest demands that the previous decision be reviewed

and reconsidered.  Thus, it is  apparent that this is the consistent

practice of this Court that Judges who had rendered the earlier

decision have presided over or been part of the larger Bench.

22. Petlad Turkey Red Dye Works Co. Ltd. v. Commissioner of Income

Tax, Bombay North, Ahmedabad (1963) Supp. 1 SCR 871 came up for

consideration in Keshav Mills Co. Ltd. v. Commissioner of Income Tax,

19

Bombay North, Ahmedabad  (1965) 2 SCR 908.   The Constitution

Bench comprised of seven­Judges in  Keshav Mills Co. Ltd., M.

Hidayatullah, J. was part of the Bench in both the matters.  There are

other instances which have been cited indicating the practice of this

Court.

23. Shri  Mohan Parasaran  learned Senior  Counsel  has submitted

that practice of  the Court is the law of the Court and binding and

should normally be adhered to in the absence of rules to the contrary.

He referred to the decision of  Jamal Uddin Ahmad v. Abu Saleh

Najmuddin, (2003) 4 SCC 257, which held thus:

“18.  Sub­section  (1)  of the abovesaid provision required the election petition being presented to the Election Commission. Sub­section (2) provided for the election petition being delivered to the Secretary to the Commission or to such other officer  as may be appointed by  the Election Commission or even being sent by registered post and delivered to the Secretary to the Commission or the officer appointed so as to be deemed to have been presented to the Election Commissioner.  While “High  Court”  has  been  substituted in place of Election Commission in sub­section (1),  sub­section (2) of  the erstwhile Section 81 has been deleted without re­ enacting a corresponding provision. The reason is more than obvious. Parliament knew that so far as the Election Commission is concerned, it was considered necessary to trust only the Secretary to the Commission or such other officer as may be appointed by the Election Commission entrusted with the responsibility of receiving the election petition presented to the Election Commission. So far as the High Court is concerned, such a provision was not required to be enacted into the Act. Jurisdiction to try an election petition has been conferred on the High Court in place of the Election Tribunal. The High Court is a constitutional court which was pre­ existing. It is a court of record and exercises plenary powers. The High Court  being a pre­existing  judicial institution also had rules, directions and practice already existing and prevalent and governing the reception of documents presented to it; the same would apply to election petitions.    Cursus curiae est  lex curiae     — The practice of the Court  is the law of the

20

Court. Every Court is the guardian of its own records and the master of its own practice; and where a practice has existed, it is convenient, except in cases of extreme urgency and necessity, to adhere to it, because it is the practice, even though  no reason  can  be  assigned for it; for  an inveterate practice in law generally stands upon principles that are founded in justice and convenience.  (See Broom's Legal Maxims, 10th Edn., p. 82.)  Even  in the absence of Chapter VIII­A in the Gauhati High Court Rules there would have been nothing wrong in the High Court or the Chief Justice authorizing any of its officers to receive the election petition presented to it so as to enable exercise of the jurisdiction conferred  on  the  High  Court  by  Chapter II  of the  Act.  The Gauhati High Court thought it proper to incorporate Chapter VIII­A in its Rules in view of the amendment made in Chapter II of the Act.”

(emphasis supplied)

24. Shri Mohan Parasaran, learned Senior Counsel has also relied

upon  the  decision of the  Supreme Court  of  United  States in  John

Patrick LITEKY v. United States, 510 U.S. 540 (1994), where the

question of recusal based on “extrajudicial source” doctrine came up

for consideration.  The Supreme Court of United States held:

“[5] [6] [7]  The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person.  But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge’s task.  As Judge Jerome Frank pithily put it: “Impartiality is not gullibility.   Disinterestedness does not mean child­like innocence.   If the Judge did not form judgments of the actors in those courthouse dramas called trials, he could never render decisions.”  In re J.P. Linahan, Inc., 138 F.2d 650, 654 (CA2 1943). Also not subject to deprecatory characterization as “bias” or “prejudice”  are opinions held by  judges as a result  of  what they learned in earlier proceedings.  It has long been regarded as normal and proper for a judge to sit in the same case upon its remand, and to sit in successive trials involving the same defendant.

[8] [9]   It is wrong in theory, though it may not be too far off the mark as a practical matter, to suggest, as many opinions have, that “extrajudicial source” is the only basis for establishing disqualifying

21

bias or prejudice.  It is the only common basis, but not the exclusive one,  since  it is  not  the exclusive reason a predisposition can be wrongful or inappropriate.   A favourable or unfavourable predisposition can  also  deserve to  be characterized  as “bias” or “prejudice” because, even though it springs from the facts adduced or the events occurring at trial, it is so extreme as to display clear inability to render fair judgment.  (That explains what some courts have called the “pervasive bias” exception to the “extrajudicial source” doctrine.   See,  e.g.,  Davis v.  Board of  School  Comm’rs of Mobile County,  517 F.2d 1044, 1051 (CA5 1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976).

[13] [14] For all these reasons,  we think that the “extrajudicial source” doctrine, as we have described it, applies to § 455(a).  As we have described it, however, there is not much doctrine to the doctrine.   The fact that an opinion held by a judge derives from a source outside judicial proceedings is not a necessary condition for “bias or prejudice” recusal,  since predisposition developed during the course of a trial will sometimes (albeit rarely) suffice.  Nor is it a sufficient  condition for “bias or prejudice” recusal, since  some opinions acquired outside the context  of judicial  proceedings  (for example, the judge’s view of the law acquired in scholarly reading) will  not  suffice.   Since neither the presence of an extrajudicial source necessarily establishes bias, nor the absence of an extrajudicial source necessarily precludes bias, it would be better to speak  of the existence of a significant (and  often  determinative) “extrajudicial source”  factor,  than of an “extrajudicial source” doctrine, in recusal jurisprudence.

[15] [16] [17] [18]  The facts of the present case do not require us to describe the consequences of that factor in complete detail.   It  is enough for present purposes to say the following:  First, judicial rulings along almost never  constitute  a valid basis for  a bias  or partiality motion.   See United States v. Grinnell Corp.,  384 U.S., at 583, 86  S.Ct., at 1710.   In and of themselves (i.e.,  apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favouritism or antagonism required (as discussed below) when no extrajudicial source is involved.   Almost invariably, they are proper grounds for appeal, not for recusal.   Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current  proceedings  or of  prior  proceedings,  do  not constitute  a basis for a bias or partiality motion unless the display a deep­seated favouritism or antagonism that would make fair judgment impossible.  Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel the parties, or their cases, ordinarily do not support a bias or partiality challenge.   They  may  do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favouritism or antagonism as to make fair judgment impossible.  An example of the latter (and perhaps of the

22

former as well) is the statement that was alleged to have been made by the District Judge in  Berger v. United States,  255 U.S. 22, 41 S.Ct.230, 65 L.Ed.481 (1921), a World War I espionage case against German­American defendants; “One must have a very judicial mind, indeed, not [to be] prejudiced against the German Americans” because their “hearts are reeking with disloyality.”  Id.,  at 28 (internal quotation marks omitted).  Not  establishing bias or partiality,  however, are expressions of  impatience,  dissatisfaction, annoyance,  and even anger, that  are  within  the bounds of  what imperfect  men and women,  even  after  having  been confirmed as federal judges, sometimes  display.  A judge’s ordinary efforts  at courtroom administration – even a stern and short­tempered judge’s ordinary efforts at courtroom administration – remain immune.

The term “extrajudicial source,” though not the interpretive doctrine bearing its name, has appeared in only one of our previous cases. United States v.  Grinnell Corp.,  384  U.S.  563, 86  S.Ct.1698,  16 L.Ed.2d 778 (1966).   Respondents in Grinnell alleged that the trial judge had a personal bias against them, and sought his disqualification and a new trial under 28 U.S.C.  § 144.   That statute, like § 455(b)(1), requires disqualification  for “bias or prejudice”.   In denying respondents’  claim, the Court stated that “[t]he alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” 384 U.S., at 583, 86 S.Ct., at 1710.”

In  LITEKY  (supra), it has been held that it is desirable to have

the same Judge in the successive causes.  They have to be faithful to

oath.  Following observation has been made:

“To take a common example, litigants (like petitioners here) often seek disqualification based upon a judge’s prior participation, in a judicial capacity, in some related litigation.   Those allegations are meritless in most instances, and their prompt rejection is important so the case can proceed.  Judges, if faithful to their oath, approach every aspect of each case with a neutral and objective disposition. They understand their duty to render decisions upon a proper record  and to disregard earlier judicial contacts  with a case or party.

Some may argue that a judge will feel the “motivation to vindicate a prior conclusion” when confronted with a question for the second or third time, for instance, upon trial after a remand.   Ratner, Disqualification of Judges for Prior Judicial  Actions, 3  How.L.J. 228, 229­230 (1957).   Still, we accept the notion that the “conscientious judge will, as far as possible, make himself aware of his biases of this character, and, by that very self­knowledge, nullify

23

their effect.”  In re J.P. Linahan, Inc., 138 F.2d 650, 652 (CA2 1943). The acquired skill and capacity to disregard extraneous matters is one of the requisites of judicial office.   As a matter of sound administration,  moreover, it may be necessary and prudent to permit judges to preside over successive causes involving the same parties or issues.   See Rules Governing Section 2255 Proceedings for the United States District Courts, Rule 4(a) (“The original motion shall be presented promptly to the judge of the district court who presided at the movant’s trial and sentenced him, or, if the judge who imposed sentence was not the trial judge, then it shall go to the judge who  was in charge of that part of the  proceedings being attacked by the movant”).  The public character of the prior and present proceedings tends to reinforce the resolve of the judge to weigh with care the propriety of his or her decision to hear the case.

Out of this reconciliation of principle and practice comes the recognition that a judge’s prior judicial experience  and contacts need not, and often do not, give rise to reasonable questions concerning impartiality.”          

    (emphasis supplied)  

25. In  State of W.B. v. Shivananda Pathak,  (1998) 5 SCC 513, this

Court has laid down that prejudging question of law, policy or

discretion, Judge is not disqualified to hear a case.   It was held as

under:

“25.  Bias may be defined as a preconceived opinion or a predisposition or predetermination to decide a case or an issue in a particular manner, so much so that such predisposition does not leave the mind open to conviction. It is, in fact, a condition of mind, which sways judgments and renders the judge unable to exercise impartiality in a particular case.

26. Bias has many forms. It may be pecuniary bias, personal bias, bias as to subject­matter in dispute, or policy bias etc. In the instant case, we are not concerned with any of these forms of bias. We have  to  deal,  as we shall  presently see,  a  new  form of  bias, namely, bias on account of judicial obstinacy.

27. Judges, unfortunately, are not infallible. As human beings, they can commit mistakes even in the best of their judgments reflective of their hard labour, impartial things and objective assessment of the  problem put  before them. In the  matter of interpretation of statutory provisions or while assessing the evidence in a particular case or deciding questions of law or facts, mistakes may be committed bona fide which are corrected at the appellate stage. This explains the  philosophy  behind the  hierarchy of courts.  Such  a

24

mistake can be committed even by a judge of the High Court which are corrected in the letters patent appeal, if available.

28.  If  a judgment is overruled  by the  higher court, the judicial discipline requires that the judge whose judgment is overruled must submit to that judgment. He cannot, in the same proceedings or in collateral proceedings between the same parties, rewrite the overruled judgment. Even if it was a decision on a pure question of law which came to be overruled, it cannot be reiterated in the same proceedings at the subsequent stage by reason of the fact that the judgment of the higher court which has overruled that judgment, not only binds the parties to the proceedings but also the judge who had earlier rendered that decision. That judge may have his occasion to reiterate his dogmatic views on a particular question of common law or constitutional law in some other case but not in the same case. If it is done, it would be exhibitive of his bias in his own favour to satisfy his egoistic judicial obstinacy.

29.  As pointed out earlier, an essential requirement of judicial adjudication is that the judge is impartial and neutral and is in a position to apply his mind objectively to the facts of the case put up before him. If he is predisposed or suffers from prejudices or has a biased mind, he disqualifies himself from acting as a  judge.  But Frank, J. of the United States in Linahan, In re, 138 F 2d 650 says:

“If, however,  ‘bias’ and ‘partiality’ be defined to mean the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial and no one will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions…. Much harm is done by the myth that, merely by … taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine.” [See  also  Griffith  and Street,  Principles  of  Administrative  Law

(1973 Edn.), p. 155; Judicial Review of Administrative Action by de Smith (1980 Edn.), p. 272; II Administrative Law Treatise by Davis (1958 Edn.), p. 130.]

30. These remarks imply a distinction between prejudging of facts specifically relating to a party, as against preconceptions or predispositions about general questions of law, policy or discretion. The implication is that though in the former case, a judge would disqualify himself, in the latter case, he may not. But this question does not arise here and is left as it is.”            

   (emphasis supplied)

26. In  Asok Pande v.  Supreme Court  of India,  (2018)  5  SCC 341,

question  of allocation  of  work  and roster of  Benches  came  up for

consideration.  The Court  has  laid  down that  Chief  Justice  has to

25

consider specialization of each Judge and other factors.   The Court

observed:

“10. Recently, a Constitution Bench of this Court in Campaign for Judicial Accountability and Reforms v. Union of India, (2018) 1 SCC 196, held that the principle which was noticed and recognised in the decision of this Court in State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1,  in relation to the jurisdiction and authority of the Chief Justice of the High Court “must apply proprio vigore as regards the power of the Chief Justice of India”. The position of the Chief Justice was reiterated with the following observations: (SCC pp. 199­200, paras 7 & 8)

“7. The aforesaid position though stated as regards the High Court, we are absolutely certain that the said principle is applicable to the Supreme Court. We are disposed to think so. Unless such a position is clearly stated, there will be utter confusion. Be it noted, this has been also the convention of this Court, and the convention has been so because of the law. We have to make it  clear without any kind of hesitation that the convention is followed because of the principles of law and because of judicial discipline and decorum. Once the Chief Justice is stated to be the Master of the Roster, he alone has the prerogative to constitute  Benches.  Needless to say,  neither  a two­Judge Bench nor a three­Judge Bench can allocate the matter to themselves or direct the composition for constitution of a Bench. To elaborate, there cannot be any direction to the Chief Justice of India as to who shall be sitting on the Bench or who shall take up the matter as that touches the composition of the Bench. We reiterate such an order cannot be passed. It is not countenanced in law and is not permissible.

8. An institution has to function within certain parameters and that is why there are precedents, rules and conventions. As far as the composition of Benches is concerned, we accept the principles stated  in  Prakash Chand,  which were stated in the context of the High Court, and clearly state that the same shall squarely apply to the Supreme Court and there cannot be any kind of command or order directing the Chief Justice of India to constitute a particular Bench.”

12.  Quite apart from the fact that the relief sought is contrary to legal and constitutional principle, there is a fundamental fallacy in the approach  of the petitioner, which must  be set at rest. The petitioner seeks the establishment of a binding precept under which a three­Judge Bench in the Court of the Chief Justice must consist of the Chief Justice and his two seniormost colleagues alone while the Constitution Bench should consist of five seniormost Judges (or, as he suggests, three “seniormost” and two “juniormost” Judges). There is no constitutional foundation on the basis of which such a suggestion can  be accepted.  For one thing, as  we have  noticed earlier, this would intrude into the exclusive duty and authority of

26

the Chief  Justice to  constitute  Benches and to  allocate  cases to them. Moreover, the petitioner seems to harbour a misconception that certain categories of cases or certain courts must consist only of the seniormost  Judges in terms of  appointment.  Every  Judge appointed  to this  Court  under Article  124 of the Constitution  is invested with the equal duty of adjudicating cases which come to the Court and are assigned by the Chief Justice. Seniority in terms of appointment has no bearing on which cases a Judge should hear. It is a settled position that a judgment delivered by a Judge speaks for the  Court (except in the case of a concurring or dissenting opinion). The Constitution makes a stipulation in Article 124(3) for the appointment of  Judges of the Supreme Court from the High Courts, from the Bar and from amongst distinguished jurists. Appointment to the Supreme Court is conditioned upon the fulfilment  of the qualifications  prescribed for the holding  of that office under Article 124(3). Once appointed, every Judge of the Court is entitled to and in fact, duty­bound, to hear such cases as are  assigned  by the  Chief  Justice.  Judges  drawn  from the  High Courts are appointed to this Court after long years of service. Members of  the Bar who are elevated to this Court similarly are possessed of wide and diverse experience gathered during the course of the years of practice at the Bar. To suggest that any Judge would be more capable of deciding particular cases or that certain categories of cases should be assigned only to the seniormost among the Judges of the  Supreme  Court  has  no foundation in principle or precedent. To hold otherwise would be to cast a reflection on the competence and ability of other Judges to deal with all cases assigned by the Chief Justice notwithstanding the fact that they have fulfilled the qualifications mandated by the Constitution for appointment to the office.                              

14. The Chartered High Courts of Allahabad, Bombay, Calcutta and Madras have a long history of over a hundred and fifty years. Each of them has marked its sesquicentennial. Many High Courts are not far behind in vintage. Some are of a recent origin. Over the course of their judicial history, High Courts have evolved conventions in matters governing practice and procedure. These conventions provide  guidance to the  Chief  Justice in the allocation  of  work, including in the constitution of Benches. The High Courts periodically  publish  a roster of  work  under the  authority  of the Chief Justice. The roster indicates the constitution of Benches, Division and Single.  The roster will indicate the subject­matter of the cases assigned to each Bench. Different High Courts have their own traditions in regard to the period for which the published roster will continue, until a fresh roster is notified. Individual Judges have their own strengths in terms of specialisation. The Chief Justice of the High Court has to bear in mind the area of specialisation of each Judge, while deciding upon the allocation of work. However, specialisation is one of several aspects which weigh with the Chief Justice. A newly appointed Judge may be rotated in a variety of assignments to enable the  Judge to  acquire expertise in  diverse branches of law. Together with the need for specialisation, there is a

27

need  for  Judges to  have  a  broadbased  understanding  of  diverse areas of law. In deciding upon the allocation of work and the constitution of Benches, Chief Justices have to determine the number of Benches which need to be assigned to a particular subject­matter keeping in view the inflow of work and arrears. The Chief Justice of the High Court will have regard to factors such as the pendency of cases in a given area, the need to dispose of the oldest cases, prioritising criminal cases  where the liberty of the subject is involved and the overall strength, in terms of numbers, of the Court. Different High Courts have assigned priorities to certain categories of cases such as those involving senior citizens, convicts who are in jail and women litigants. These priorities are considered while preparing the roster. Impending retirements have to be borne in mind since the assignment given to a Judge who is due to demit office would have to be entrusted to another Bench when the vacancy  arises.  These  are  some  of the  considerations  which  are borne in mind. The Chief Justice is guided by the need to ensure the orderly functioning of the Court and the expeditious disposal of cases.  The publication of the roster  on  the websites  of the High Courts provides notice to litigants and lawyers about the distribution of judicial work under the authority of the Chief Justice. This Court was constituted in 1950. In the preparation of the roster  and in the  distribution  of judicial  work, some  of the conventions which are adopted in the High Courts are also relevant, subject to modifications having regard to institutional requirements.

15. Underlying the submission that the constitution of Benches and the allocation of cases by the Chief Justice must be regulated by a procedure cast in iron is the apprehension that absent such  a procedure the power will be exercised arbitrarily. In his capacity as a Judge,  the Chief  Justice  is  primus inter pares: the first among equals. In the discharge of his other functions, the Chief Justice of India occupies a position which is sui generis. Article 124(1) postulates that the Supreme Court of India shall consist of a Chief Justice of India and other Judges. Article 146 reaffirms the position of the Chief Justice of India as the head of the institution. From an institutional perspective the Chief Justice is placed at the helm of the Supreme Court. In the allocation of cases and the constitution of  Benches the Chief  Justice  has an exclusive  prerogative.  As a repository of constitutional trust, the Chief Justice is an institution in himself. The authority which is conferred upon the Chief Justice, it must be remembered, is vested in a high constitutional functionary. The authority is entrusted to the Chief Justice because such an entrustment of functions is necessary for the efficient transaction of the administrative and judicial work of the Court. The ultimate purpose behind the entrustment of authority to the Chief Justice  is to ensure that the Supreme Court  is able to fulfil  and discharge the constitutional obligations which govern and provide the rationale for its existence. The entrustment of functions to the Chief Justice as the head of the institution, is with the purpose of securing the position of the Supreme Court as an independent safeguard for the preservation of personal liberty. There cannot be a

28

presumption of mistrust. The oath of office demands nothing less.”

  (emphasis supplied)

Thus, rendering a decision on any issue of law and the corrective

procedure of it cannot be said to be ground for recusal of a Judge;

otherwise, no Judge can hear a review, curative petition, or a reference

made to the larger bench.   

27. 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.  We 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.  We  have to correct the  decision, apply the law,

independently interpret the provisions as per the fact situation of the

case which may not be germane in the earlier matter.  A judgment is

not a halting­place,  it is stepping stone.   It  is not like a holy book

which cannot be amended or corrected. It may also work to the

advantage of all concerned if a Judge having decided the matter either

way is also a member of the larger bench. A Judge who had rendered

any decision in a smaller combination is not disqualified from being

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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.  Shri Mohan Parasaran, learned senior counsel has referred

to Rule 8 of Delhi High Court Rules contained in Chapter 3; Part C

which reads as under:

“8. 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.”

The rule provides that a Judge who referred a case has to sit on

the larger Bench to consider the reference. In the present case also,

the reference has been made by me and my recusal has been sought.

Thus, based on the consistent practice,  we find that no ground for

recusal is made out.  

28. Recusal has been prayed for on the ground of legal pre­

disposition. Where recusal is sought on the ground, various questions

arise for consideration. Firstly, legal pre­disposition 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. He cannot say that a Judge who might have decided a case on

30

a particular issue, which may go against his interest subsequently or

is part of a larger Bench should not hear his case.  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. Then parties will be

choosing Benches to their liking. In that case, the Judges holding a

view can be termed  to  be disqualified.   In  case the  submission of

recusal is accepted, the Judges having either side view, cannot hear

the matter  and have  to  recuse  from hearing.   In that  case to find

neutral Judges would be difficult to find and that would be subvert to

the very concept of independent judicial system.  If litigants are given

the right to seek recusal of a judge on the ground that in a smaller

Bench, a view has been taken by the Judge, the correctness of which

has to be decided  by the larger Bench,  which includes the same

Judge, then on a parity of reasoning recusal might be sought on the

ground of the judge having taken a view one way or the other even in a

different case  in which similar  issues are  involved if the  judge has 31

decided  similar issues  earlier, in the same Court  or in  a  different

Court.   This would open the flood gates of forum shopping.   Recusal

upon an imagined apprehension of legal pre­disposition 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.

29. The question that comes to the mind is whether one of us should

recuse in order to prevent the embarrassment caused to a Judge by a

member  of the  Bar,  by  seeking  his recusal.  Recusal  would  be the

easiest way to solve it. On the other hand, a larger question arises.  If

request for recusal on the ground of legal pre­disposition in the form

of a judgment is acceded to, that would destroy the very edifice of an

independent judicial system.

30. 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, and he is a constitutional

functionary who has been enjoined with this task at the highest

32

pedestal to exercise the power of roster making.  He is the repository of

faith.   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. 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 as mentioned above when Judges have overruled their own

view. In  LITEKY  (supra), the United States Supreme Court has held

that rather it may be advantageous to have them on a Bench hearing

the matter as judgments are rendered after hearing the arguments of

learned counsel for the parties.  There  is  always a scope to further

develop the law and to correct the errors, and this can better be done

by having Judges on the Bench, who have earlier rendered judgments

with respect  to the subject­matter  to which of the parties the view

taken suits is not relevant.

31. If requests for recusal are acceded to for the asking, litigants will

be unscrupulously taking over the roster making powers of the Chief

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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.  It

is the test of the  ability of the judicial system  to  withstand such

onslaught made from every nook and corner. Any recusal in the

circumstances is ruled out, such prayer strengthens the stern

determination not to succumb to any such pressure and not to recuse

on the ground on which recusal sought because for any reason, such

a prayer is permitted, even once, it would tantamount to cowardice

and give room to big and mighty to destroy the very judicial system.

Moreover,  recusal  in such unjustified circumstances, would become

the norm.

32. It was vehemently urged by learned senior counsel on behalf of

the respondents that they may feel embarrassed in arguing a

proposition of law which has been dealt with in the Indore

Development Authority elaborately. We find that given that arguments

on recusal, spilling for over a day, could be made vociferously, in a

belligerent fashion and with utmost ability, the submission that the

learned counsel would feel diffident in arguing a proposition of law on

merits, is difficult to accept.  We feel that there is no dearth of talent

in this Court to argue a matter most effectively even against the tide.

The lawyers have compelled this Court time and again to change its

34

views and to refine the law. This Court is known for not a particular

view but for refining the law and that has been done with the help,

ability and legal ingenuity of the lawyers to convince this Court with

aplomb to correct its view. That is how the process goes on as the

entire system exists for the people of this country. Under the guise of

that, a reasonable man should not have even an iota of doubt as to the

impartiality of the Tribunal. If recusal is made, it would tantamount to

giving room to unscrupulous litigant to have a Judge of their choice

who can share the views which are to be canvassed by them. No such

right can be given to any person under the aforesaid guise; there is no

cause for any apprehension. There is no room to entertain the same.

The plea cannot be termed anything other than Bench hunting, if it is

said that until and unless the one which suits a litigant is found the

matters are not to be argued.  

33. It also passes comprehension whether in a Constitution Bench,

consisting of five Judges, prayer for recusal of a Judge who has taken

a particular view earlier, is justified? 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.  Are they also to be disqualified? In case the petitioner's

prayer 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

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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.

34. The decision in  Supreme Court Advocates­on­Record Association

& Anr. v. Union of India (recusal matter),  (2016) 5 SCC 808, has been

referred to. Recusal of Justice Khehar (as His Lordship then was) was

sought from the Constitution Bench. The principles have been

summarised by this Court. The first principle which this Court has

discussed is the impartiality of a  Judge. It  has  been  observed  by

Justice Chelameswar 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. Grant Hammond, a former Judge of the

Court of Appeal of   New Zealand has in his book ‘Judicial Recusal’,

which has been referred to, observed that English Common Law on

recusal was both simple and highly constrained; a Judge could only

be disqualified for a direct pecuniary interest or consanguinity,

affinity, friendship or enmity with a party or because he was or had

been a party’s advocate. The Court has discussed the matter thus:

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“12. Grant Hammond, a former Judge of the Court of Appeal of New Zealand and an academician, in his book titled  Judicial Recusal traced out principles on the law of recusal as developed in England in the following words:

“The central feature of the early English common law on recusal was both simple and highly constrained: a Judge could only be disqualified for a direct pecuniary interest. What would today be termed ‘bias’, which is easily the most controversial ground for disqualification, was entirely rejected as a ground for recusal of Judges, although it was not completely dismissed in relation to jurors.

This  was in  marked contrast to the relatively sophisticated canon law, which provided for recusal if a Judge was suspected of partiality because of consanguinity, affinity, friendship or enmity with a party, or because of his subordinate status towards a party or because he was or had been a party’s advocate.”

He also pointed out that in contrast in the United States of America, the subject is covered by legislation.

13. Dimes v. Grand Junction Canal, (1852) 3 HLC 759, is one of the earliest cases where the question of disqualification of a Judge was considered. The ground was that he had some pecuniary interest in the  matter.  We are  not  concerned with the  details  of the  dispute between the parties to the case. Lord Chancellor Cottenham heard the appeal against an order of the Vice­Chancellor and confirmed the order. The order went in favour of the defendant Company. A year later, Dimes discovered that Lord Chancellor Cottenham had shares in the defendant Company. He petitioned the Queen for her intervention.  The  litigation had a  long and chequered history, the details of which are not material for us. Eventually, the matter reached the  House of Lords. The  House  dismissed the appeal of Dimes  on the  ground that setting  aside  of the  order  of the  Lord Chancellor would still leave the order of the Vice­Chancellor intact as Lord Chancellor had merely affirmed the order of the Vice­ Chancellor. However, the House of Lords held that participation of Lord Cottenham in the adjudicatory process was not justified. Though Lord Campbell observed: (Dimes case, ER p. 315)

“… No one can suppose that Lord Cottenham could be, in the remotest degree, influenced  by the interest  he had in this concern: but, my Lords, it is of the last importance that the maxim that no man is to be a Judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest. … This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence.”

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14.  Summing  up the  principle laid  down  by the abovementioned case, Hammond observed as follows:

“The  ‘no­pecuniary interest’  principle as expressed in  Dimes requires a judge to be automatically disqualified when there is neither actual bias nor even an apprehension of bias on the part of that judge. The fundamental philosophical underpinning of Dimes  is therefore predicated on a conflict of interest approach.”

15. The next landmark case on the question of “bias” is R. v. Gough, 1993 AC 646. Gough was convicted for an offence of conspiracy to rob and was sentenced to imprisonment for fifteen years by the trial court. It was a trial by Jury. After the conviction was announced, it was brought to the notice of the trial court that one of the jurors was a  neighbour  of the  convict.  The  convict  appealed to the  Court of Appeal unsuccessfully. One of the grounds on which the conviction was challenged was that, in view of the fact that one of the jurors being a neighbour of the convict presented a possibility of bias on her part and therefore the conviction is unsustainable. The Court of Appeal noticed that there are two lines of authority propounding two different tests for determining disqualification of a Judge on the ground of bias: (1) “real danger” test; and (2) “reasonable suspicion” test. The Court of Appeal confirmed the conviction by applying the “real danger” test.

16. The matter was carried further to the House of Lords. Lord Goff noticed that there are a series of authorities which are “not only large in number but bewildering in their effect”. After analysing the judgment in Dimes, Lord Goff held: (Gough case, AC p. 661 F­G)

“In such a case, therefore, not only is it irrelevant that there was in fact no bias on the part of the tribunal, but there is no question of investigating, from an objective point of view, whether there was any real likelihood of bias, or any reasonable  suspicion  of  bias,  on  the facts  of the  particular case. The nature of the interest is such that public confidence in the administration of justice requires that the decision should not stand.”

In other words, where a Judge has a pecuniary interest, no further inquiry as to whether there was a “real danger” or “reasonable suspicion” of bias is required to be undertaken. But in other cases, such an inquiry is required and the relevant test is the “real danger” test: (Gough case, AC pp. 661 G­H­662 A­B)

“… But [in other cases], the inquiry is directed to the question whether there was such a degree of possibility of bias on the part of the tribunal that the court will not allow the decision to stand. Such a question may arise in a wide variety of circumstances. These include … cases in which the member of the tribunal has an interest in the outcome of the proceedings, which falls short of a direct pecuniary interest. Such interests

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may vary widely in their nature, in their effect, and in their relevance to the subject­matter of the proceedings; and there is no rule … that the possession of such an interest automatically disqualifies the member of the tribunal from sitting. Each case falls to be considered on its own facts.”

17.  The learned  Judge  examined  various important cases on the subject and finally concluded: (Gough case, AC p. 670 E­G)

“… Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself  whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him….”

18.  Lord Woolf agreed with Lord Goff in his separate judgment. He held: (Gough case, AC p. 673 F­G)

“… There  is  only  one established special  category and  that exists where the tribunal has a pecuniary or proprietary interest in the subject­matter of the proceedings as in Dimes v. Grand Junction Canal. The courts should hesitate long before creating any other special category since this will immediately create uncertainty as to what are the parameters of that category and what is the test to be applied in the case of that category. The real danger test is quite capable of producing the right answer and ensure that the purity of justice is maintained  across the range of situations where  bias  may exist.”

19. In substance, the Court held that in cases where the Judge has a pecuniary interest in the outcome of the proceedings, his disqualification  is  automatic.  No  further  enquiry  whether  such an interest lead to a “real danger” or gave rise to a “reasonable suspicion” is necessary. In cases of other interest, the test to determine whether the Judge is disqualified to hear the case is the “real danger” test.

20.  The  R. v.  Bow Street Metropolitan Stipendiary Magistrate,  ex p Pinochet Ugarte (No.2), (2000) 1 AC 119, added one more category to the cases of automatic disqualification for a Judge. Pinochet, a former Chilean dictator,  was sought to be arrested and extradited from England for his conduct during his incumbency in office. The issue  was  whether  Pinochet  was entitled to immunity from such arrest or extradition. Amnesty International, a charitable organisation, participated in the said proceedings with the leave of the Court. The House of Lords held that Pinochet did not enjoy any such immunity. Subsequently, it came to light that Lord Hoffman,

39

one of the members of the Board which heard  Pinochet case, was a Director and Chairman of a company (known as AICL)  which was closely linked with Amnesty International. An application was made to the House of Lords to set aside the earlier judgment on the ground of bias on the part of Lord Hoffman.

21. The House of Lords examined the following questions:

(i) Whether the connection of Lord Hoffman with Amnesty International required him to be automatically disqualified? (ii) Whether an enquiry into the question whether cause of Lord Hoffman’s connection with Amnesty International posed a real danger or caused a reasonable apprehension that his  judgment  is biased — is necessary? (iii) Did it make any difference that Lord Hoffman was only a member of a company associated with Amnesty International which was in fact interested in securing the extradition of Senator Pinochet?

22. Lord Wilkinson summarised the principles on which a Judge is disqualified to hear a case. As per Lord Wilkinson: (Pinochet case, AC pp. 132 G­H­133 A­C)

“The fundamental principle is that a man may not be a Judge in his own cause. This principle, as developed by the courts, has  two very  similar  but  not identical implications.  First it may be applied literally: if  a Judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a Judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a Judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of  the principle that  a man must not be Judge in his own cause, since the Judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.

In my judgment, this case falls within the first category of case, viz. where the Judge is disqualified because he is a Judge in his own cause. In such a case, once it is shown that the Judge is himself a party to the cause, or has a relevant interest  in its subject­matter, he is disqualified without any investigation into whether there was a likelihood or suspicion of bias. The mere fact of his interest is sufficient to disqualify him unless he has made sufficient disclosure….”

And framed the question: (AC p. 134B­C) “… the question then arises whether, in non­financial litigation, anything other than a financial or proprietary

40

interest in the outcome is sufficient automatically to disqualify a man from sitting as Judge in the cause.”

(emphasis supplied) He opined that although the earlier cases have

“all  dealt  with  automatic  disqualification on  the grounds of pecuniary interest, there is no good reason in principle for so limiting automatic disqualification”. (AC p. 135B)

23.  Lord  Wilkinson  concluded  that  Amnesty International  and  its associate company  known as  AICL,  had  a  non­pecuniary interest established that Senator Pinochet was not immune from the process of extradition. He concluded that: (Pinochet case, AC p. 135C­D)

“… the matter at issue does not relate to money or economic advantage but is concerned with the  promotion of the cause, the rationale disqualifying a Judge applies just as much if the Judge’s decision will lead to the promotion of a cause in which the Judge is involved together with one of the parties.”

(emphasis supplied)

24. After so concluding, dealing with the last question, whether the fact that Lord Hoffman was only a member of AICL but not a member of Amnesty International made any difference to the principle, Lord Wilkinson opined that: (Pinochet case, AC p. 132H­133A)

even though a Judge may not have financial  interest in the outcome  of a case, but in some  other  way  his conduct  or behaviour may give rise to a suspicion that he is not impartial….

and held that: (AC p. 135 E­F) “…  If the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a Judge who is involved, whether personally or as a Director of a company, in promoting the same causes in the same organisation as is a party to the suit. There is no room for fine distinctions….”

This aspect  of  the matter was considered  in  P.D.  Dinakaran  (1)  v. Judges Inquiry Committee, (2011) 8 SCC 380

25. From the above decisions, in our opinion, the following principles emerge: 25.1. If a Judge has a financial interest in the outcome of a case, he is automatically disqualified from hearing the case. 25.2.  In cases where the interest of the Judge in the case is other than financial, then the disqualification is not automatic but an enquiry is required whether the existence of such an interest disqualifies the Judge tested in the light of either on the principle of “real danger” or “reasonable apprehension” of bias. 25.3. The Pinochet case added a new category i.e. that the Judge is automatically disqualified  from hearing a case where the Judge is

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interested in a cause which is being promoted by one of the parties to the case.

26. It is nobody’s case that, in the case at hand, Justice Khehar had any pecuniary interest or any other interest falling under the second of the abovementioned categories. By the very nature of the case, no such interest can arise at all.

27.  The question is whether the principle of law laid down in Pinochet case  is attracted. In other words, whether Justice Khehar can be said to be sharing any interest which one of the parties is promoting. All the parties to these proceedings claim to be promoting the cause of ensuring the existence of an impartial and independent judiciary. The only difference of opinion between the parties is regarding the  process  by  which such  a result is to be achieved. Therefore, it cannot be said that Justice Khehar shares any interest which any one of the parties to the proceeding is seeking to promote.

28.  The implication  of  Shri  Nariman’s  submission is that  Justice Khehar would be predetermined to hold the impugned legislation to be invalid. We fail to understand the stand of the petitioners. If such apprehension of the petitioners comes true, the beneficiaries would be the petitioners only. The grievance, if any, on this ground should be on the part of the respondents.

29.  The learned Attorney General appearing for the Union of India made an emphatic statement that the Union of India has no objection for Justice Khehar hearing the matter as a Presiding Judge of the Bench.

30. No precedent has been brought to our notice, where courts ruled at the instance of the beneficiary of bias on the part of the adjudicator, that a judgment or an administrative decision is either voidable or void on the ground of bias. On the other hand, it is a well­ established principle of law that an objection based on bias of the adjudicator can be waived. Courts generally did not entertain such objection raised belatedly by the aggrieved party:

“The right to object to a disqualified adjudicator may be waived, and this may be so even where the disqualification is statutory. The court normally insists that the objection shall be taken  as soon  as the  party  prejudiced  knows the facts which entitle him to object. If, after he or his advisors know of the disqualification, they let the proceedings continue without protest, they are held to have waived their objection and the determination cannot be challenged.”

In our opinion, the implication of the above principle is that only a party who has suffered or is likely to suffer an adverse adjudication because of the possibility of bias on the part of the adjudicator can raise the objection.

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31.  The significant power as described by Shri  Nariman does not inhere only to the members of the Collegium, but inheres in every Judge of this Court who might be called upon to express his opinion regarding the proposals of various appointments of the High Court Judges, Chief Justices or Judges of this Court, while the members of the Collegium are required to exercise such “significant power” with respect to each and every appointment of the abovementioned categories, the other Judges of this Court are required to exercise such “significant power”, at least with respect to the appointments to or from the High Court with which they were earlier associated with either as Judges or Chief Justices. The argument of Shri Nariman, if accepted would render all the Judges of this Court disqualified from hearing the present controversy. A result not legally permitted by the “doctrine of necessity”.

Justice J.S. Khehar, in his opinion, has observed thus:

“57.  The reason that was pointed out against me, for seeking my recusal was,  that I  was a part of  the 1 + 4 Collegium. But that should have been a disqualification  for Anil  R.  Dave,  J.  as well. When he commenced hearing of the matters, and till 7­4­2015, he suffered the same alleged disqualification. Yet, the objection raised against me, was not raised against him. When confronted, Mr Fali S. Nariman vociferously contested, that he had not sought the recusal of Anil R. Dave, J. He supported his assertion with proof. One wonders, why did he not seek the recusal of Anil R. Dave, J.? There is no doubt about the fact, that I have been a member of the 1 + 4 Collegium, and it is likely that I would also shortly become a Member of NJAC, if the present challenge raised by the petitioners was not to succeed. I would therefore remain a part of the selection procedure, irrespective of the process which prevails. That however is the position with reference to four of us (on the instant five­Judge Bench). Besides me, my colleagues on the Bench — J. Chelameswar, Madan B. Lokur and Kurian Joseph, JJ. would in due course be a part of the Collegium (if the writ petitioners before this  Court  were  to  succeed),  or  alternatively,  would be a part  of NJAC (if the writ petitioners were to fail). In such eventuality, the averment of conflict of interest, ought to have been raised not only against me, but also against my three colleagues. But, that was not the manner in which the issue has been canvassed. In my considered view, the prayer for my recusal is not well founded. If I were to accede to the prayer for my recusal, I would be initiating a wrong practice, and laying down a wrong precedent. A Judge may recuse at his own, from a case entrusted to him by the Chief Justice. That would be a matter of his own choosing. But recusal at the asking of a litigating party, unless justified, must never to be acceded to. For that would give the impression, of the Judge had been scared out of the case, just by the force of the objection. A Judge before he assumes his office, takes an oath to discharge his duties without fear or favour. He would breach his oath of office, if he accepts a prayer for recusal, unless justified. It  is my duty to

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discharge my responsibility with absolute earnestness and sincerity. It is my duty to abide by my oath of office to uphold the Constitution and the laws. My decision to continue to be a part of the Bench,  flows  from the oath which  I took,  at the  time of  my elevation to this Court.                                

 (emphasis supplied)

Justice Lokur, in his opinion, has observed:

“60. In my respectful opinion, when an application is made for the recusal of a Judge from hearing a case, the application is made to the Judge concerned and not to the Bench as a whole. Therefore, my learned brother Justice Khehar is absolutely correct in stating that the decision is entirely his, and I respect his decision.

65. The issue of recusal from hearing a case is not as simple as it appears. The questions thrown up are quite significant and since it appears that such applications are gaining frequency, it is time that some procedural and substantive rules are framed in this regard. If appropriate rules are framed, then, in a given case, it would avoid embarrassment to other Judges on the Bench.”

It  has been held that  decision to recuse  is that  of the Judge

concerned, and unjustified pressure should never be allowed.

35. Shri Tushar Mehta,  learned Solicitor General,  has relied upon

the decision in Subrata Roy Sahara v. Union of India & Ors.,  (2014) 8

SCC 470. Recusal of the Bench was sought by way of filing a petition.

The  embarrassment  which  is  caused by such a  prayer, concept  of

correction of a mistake, if any, recognition of mistake and its

rectification have also been considered. This Court has observed:  

 “7.  Now the embarrassment part. Having gone through the pleadings of the writ petition we were satisfied that nothing expressed therein could be assumed as would humiliate or discomfort us by putting us to shame. To modify an earlier order passed by us for a mistake we may have committed, which is apparent on the  face of the record,  is a  jurisdiction we regularly exercise under Article  137 of  the Constitution of  India.  Added to that, it is open to a party to file a curative petition as held by this Court in  Rupa Ashok Hurra  v.  Ashok Hurra, (2002)  4  SCC 388.

44

These jurisdictions are regularly exercised by us, when made out, without any  embarrassment.  Correction of a  wrong order  would never put anyone to shame. Recognition of a mistake, and its rectification, would certainly not put us to shame. In our considered view, embarrassment would arise when the order assailed is actuated  by  personal  and/or  extraneous  considerations,  and  the pleadings record such an accusation. No such allegation was made in the present writ petition. And therefore, we were fully satisfied that  the  feeling entertained by  the petitioner, that  we would not pass an appropriate order, if the order impugned dated 4­3­2014 was found to be partly or fully unjustified, was totally misplaced.”

36. In Subrata Roy Sahara (supra) this Court has also referred to the

decision of  Mr. R.K. Anand’s case  (supra) in which it has been

observed that the path of recusal is very often a convenient and a soft

option as a Judge has no vested interest in doing a particular matter.

It is the  Constitution  of India  which  enjoins  a  Judge to  duly  and

faithfully  and to the  best  of  his  ability,  knowledge,  and judgment,

perform the duties of his office without fear or favour. Affronts, jibes,

and consciously planned snubs should not deter us from discharging

our onerous responsibility. This Court has observed:

“10. We have recorded the above narration, lest we are accused of not correctly depicting the submissions as they  were canvassed before us. In our understanding, the oath of our office required us to  go  ahead with the  hearing.  And not to  be  overawed by  such submissions. In our view, not hearing the matter, would constitute an act in breach of our oath of office, which mandates us to perform the duties of our office, to the best of our ability, without fear or favour, affection or ill will.

11. This is certainly not the first time when solicitation for recusal has been sought by the learned counsel. Such a recorded peremptory prayer was made by Mr R.K. Anand, an eminent Senior Advocate, before the High Court of Delhi seeking the recusal of Mr Justice Manmohan Sarin from hearing his personal case. Mr Justice Manmohan Sarin while declining the request made by Mr R.K. Anand, observed as under:

45

“The  path  of recusal is  very  often  a convenient  and a soft option. This is especially so since a Judge really has no vested interest in  doing  a  particular  matter.  However, the  oath  of office taken  under  Article 219  of the  Constitution of India enjoins the Judge to duly and faithfully and to the best of his knowledge and judgment, perform the duties of office without fear or favour, affection or ill will while upholding the Constitution and the laws. In a case, where unfounded and motivated allegations of  bias are  sought to  be made with a view of forum hunting/Bench preference or brow­beating the Court, then, succumbing to such a pressure would tantamount to not fulfilling the oath of office.”

The above determination of the High Court of Delhi was assailed before this Court in  R.K. Anand v.  Delhi High Court,  (2009) 8 SCC 106. The determination of the High Court whereby Mr Justice Manmohan Sarin declined to withdraw from the hearing of the case came to be upheld, with the following observations: (SCC p. 192, para 263)

“263. The above passage, in our view, correctly sums up what should be the court’s response in the face of  a request for recusal made with the intent to intimidate the court or to get better of an ‘inconvenient’ Judge or to obfuscate the issues or to cause obstruction and delay  the proceedings or in any other way frustrate or obstruct the course of justice.”

(emphasis supplied)

In fact, the observations of the High Court of Delhi and those of this Court reflected exactly how it felt, when the learned counsel addressed the Court at the commencement of the hearing. If it was the learned counsel’s posturing antics, aimed at bench­hunting or bench­hopping  (or should we say,  bench­avoiding),  we would not allow  that.  Affronts, jibes  and carefully  and consciously  planned snubs could not deter us from discharging our onerous responsibility. We could at any time during the course of hearing walk out and make way for another Bench to decide the matter, if ever we felt that that would be the righteous course to follow. Whether or not it would be better for another Bench to hear this case will emerge from the conclusions, we will draw, in the course of the present determination.

131. We shall now deal with the substance, and the import, of the judgments relied upon. It is not the case of the petitioner that we have any connection with either the two Companies under reference, or any other company/firm which constitutes the Sahara Group. We may state, that neither of us has even a single share with the two Companies concerned or with any other company/firm comprising of the Sahara Group. In order to remove all ambiguity in the matter we would further state, that neither of us, nor any of our dependent family members, own even a single share in any

46

company whatsoever. Neither of us has been assisted in this case, for its  determination on merits  by  any  law clerk, intern or  staff member,  while hearing,  dealing with or deciding the controversy. Nor has any assertion in this behalf been made against us by the petitioner or his learned counsel. Accordingly, the factual position, which was the basis of the decisions relied upon by the  learned counsel, is not available in the facts and circumstances of this case. In the above view of the matter, it is but natural to conclude, that none of the judgments relied upon by the learned Senior Counsel for the petitioner, on the subject of bias, are applicable to the facts and circumstances of this case. We are satisfied that none of the disguised aspersions cast by the learned Senior Counsel, would be sufficient to justify the invocation of the maxim, that justice must not actually be done, but must also appear to be done. As already noticed above, even though our combination as a Bench, did not exist  at the  time,  when the present  petition was  filed,  a  Special Bench, with the present composition, was constituted by the Hon’ble the Chief Justice, as a matter of his conscious determination. No litigant can be permitted to dissuade us in discharging the onerous responsibility assigned to us by the Hon’ble the Chief Justice.

135. Dr. Rajeev Dhavan, learned Senior Counsel also accused us of having a predisposition in respect of the controversy. This predisposition, according to him, appeared to be on the basis of a strong  commitment towards the  “other side”.  This  assertion  was repeated several times during the hearing. But, which is the other side? In terms of our order dated 31­8­2012 the only gainer on the other side is the Government of India. The eighth direction of our order dated 31­8­2012, reads as under: (SCC p. 172, para 326)

“326.8. SEBI (WTM) if, after the verification of the details furnished, is unable to find out the whereabouts of all or any of the subscribers, then the amount collected from such subscribers will be appropriated to the Government of India.”

(emphasis supplied)

If the “other side”, is the Government of India, there is certainly no substance in the aspersion cast by the learned counsel. Just the above aspect of the matter is sufficient to burst the bubble of all the carefully crafted insinuations, systematically offloaded, by the learned counsel for effect and impact.

137. The observations recorded in the above judgment in Jaswant Singh v. Virender Singh, 1995 Supp (1) SCC 384, are fully applicable to the mannerism and demeanour of the petitioner Mr Subrata Roy Sahara and some of the learned Senior Counsel.  We would have declined to recuse  from the matter,  even  if the “other side”,  had been a private party. For, our oath of office requires us to discharge our obligations, without fear or favour. We therefore also commend to all courts, to similarly repulse all baseless and unfounded insinuations, unless of course, they should not be hearing a

47

particular matter, for reasons of their direct or indirect involvement. The benchmark, that justice must not only be done but should also appear to be done, has to be preserved at all costs.”

37. In R.K. Anand v. Registrar, Delhi High Court, (2009) 8 SCC 106, it

was observed:

264. We are constrained to pause here for a moment and to express grave concern over the fact that lately such tendencies and practices are on the increase. We have come across instances where one would simply throw a stone on a Judge (who is quite defenceless in such matters!) and later on cite the gratuitous attack as a ground to ask the Judge to recuse himself from hearing a case in which he would be appearing. Such conduct is bound to cause deep hurt to the Judge concerned but what is of far greater importance is that it defies the very fundamentals of administration of justice. A motivated application for recusal, therefore, needs to be dealt with sternly and should be viewed ordinarily as interference in the due course of justice leading to penal consequences.”

38. In  Kamini Jaiswal v. Union of India & Anr., (2018) 1 SCC 156,

this Court has dealt with the matter of recusal thus:

“24.  There  is no conflict  of  interest in such a matter. In case a Judge is hearing a matter and if he comes to know that any party is unscrupulously trying to influence the decision­making or indulging in malpractices, it is incumbent upon the Judge to take cognizance of such a matter under the Contempt of Courts Act and to deal with and punish such person in accordance with law as that is not the conflict of interest  but the  purpose for  which the entire system exists. Such things cannot be ignored and recusal of a Judge cannot be asked on the ground of conflict of interest, it would be the saddest day for the judicial system of this country to ignore such aspects on the unfounded allegations and materials. It was highly improper for the petitioner to allege conflict of interest in the petition filed that the Hon’ble Chief Justice of India should not hear on judicial side or allocate the matter on the administrative side. It appears that in order to achieve this end the particular request has been made by  filing successive petitions day after  the other  and prayer  was  made to  avoid the  Hon’ble  Chief  Justice of India to exercise the power for allocation of cases  which  was clearly an attempt at forum hunting and has to be deprecated in the strongest possible words. Making such scandalous remarks also tantamount to interfering  with  administration  of justice, an  advocate cannot escape the responsibility on the ground that he drafted the same in his/her personal capacity as laid down in  Shamsher Singh Bedi v. High Court of Punjab & Haryana, (1996) 7 SCC 99. In  Charan Lal Sahu v. Union of India, (1988) 3 SCC 255, this Court has observed

48

that in a petition filed under Article 32 in the form of PIL attempt of mudslinging against the advocates, Supreme Court and also against the other constitutional institutions indulged in by an advocate in a careless manner, meaningless and as contradictory pleadings, clumsy allegations, contempt was ordered to be drawn. The Registry was directed not to entertain any PIL petition of the petitioner in future.

27. This Court considered various categories of forum shopping in Union of India  v.  Cipla Ltd., (2009) 8 SCC 106. Even making allegations of a per se conflict of interest require the matter could be transferred to another Bench, has also been held to be another form of forum hunting. This Court has considered various decisions thus: (SCC pp. 318­20, paras 146­155)

“146.  The  learned Solicitor  General  submitted that  Cipla  was guilty of forum shopping inasmuch as it had filed petitions in the Bombay High Court, the Karnataka High Court and also an affidavit in the Delhi High Court as a member of the Bulk Drug Manufacturers Association and had eventually approached the Allahabad High Court for relief resulting in the impugned judgment and order dated 3­3­2004. It was submitted that since Cipla had approached several constitutional courts for relief, the proceedings initiated in the Allahabad High Court clearly amount to forum shopping.

147. We are not at all in agreement with the learned Solicitor General.  Forum shopping takes several  hues and shades and Cipla’s petitions do not fall under any category of forum shopping.

148. A classic example of forum shopping is when a litigant approaches one Court for relief but does not get the desired relief and  then  approaches another  Court for the  same relief.  This occurred in  Rajiv Bhatia  v.  State (NCT of Delhi),  (1999) 8 SCC 525. The respondent mother of a young child had filed a petition for a writ  of habeas corpus in the Rajasthan High Court and apparently did not get the required relief from that Court. She then filed a petition in the Delhi High Court also for a writ of habeas corpus and obtained the necessary relief. Notwithstanding this, this Court did not interfere with the order passed by the Delhi High Court for the reason that this Court ascertained the views of the child and found that she did not want to even talk to  her adoptive  parents and therefore the custody  of the  child granted  by the  Delhi  High  Court to the respondent mother was not interfered with. The decision of this Court  is  on  its own facts,  even though it is a classic case of forum shopping.

149. In Arathi Bandi v. Bandi Jagadrakshaka Rao, (2013) 15 SCC 790, this Court  noted that  jurisdiction  in a court is not attracted by the operation or creation of fortuitous circumstances. In that case, circumstances were created by one of the parties to the dispute to confer jurisdiction on a particular High Court. This was frowned upon by this Court by observing

49

that to allow the assumption of jurisdiction in created circumstances would only result in encouraging forum shopping.

150. Another case of creating circumstances for the purposes of forum shopping was  World Tanker Carrier Corpn.  v.  SNP Shipping  Services (P) Ltd., (1998)  5  SCC 310,  wherein it  was observed that the respondent­plaintiff had  made  a  deliberate attempt to bring the cause of action, namely, a collision between two vessels on the high seas within the jurisdiction of the Bombay High Court. Bringing one of the vessels to Bombay in order to confer jurisdiction on the Bombay High Court had the character of forum shopping rather than anything else.

151. Another form of forum shopping is taking advantage of a view held by a particular High Court in contrast to a different view held by another High Court. In  Ambica Industries  v.  CCE, (2007) 6 SCC 769, the assessee was from Lucknow. It challenged an order passed by the Customs, Excise and Service Tax Appellate Tribunal (“CESTAT”) located in Delhi before the Delhi High  Court.  CESTAT had jurisdiction  over the  State  of  Uttar Pradesh, NCT of Delhi and the State of Maharashtra. The Delhi High Court  did not  entertain  the proceedings  initiated by the assessee for want of territorial jurisdiction. Dismissing the assessee’s  appeal this Court  gave the example of  an assessee affected by an assessment order in Bombay invoking the jurisdiction of the Delhi High Court to take advantage of the law laid down by the Delhi High Court or an assessee affected by an order of assessment made at Bombay invoking the jurisdiction of the Allahabad High Court to take advantage of the law laid down by it and consequently evade the law laid down by the Bombay High Court. It was said that this could not be allowed  and circumstances such as this would lead to some sort of judicial anarchy.

152. Yet another form of forum  shopping  was  noticed in Jagmohan Bahl  v.  State (NCT of Delhi),  (2014) 16 SCC 501, wherein it was held that successive bail applications filed by a litigant ought to be heard by the same learned Judge, otherwise an  unscrupulous litigant  would  go on filing  bail applications before different Judges until a favourable order is obtained. Unless this practice was nipped in the bud, it would encourage unscrupulous litigants and encourage them to entertain the idea that they can indulge in forum shopping, which has no sanction in law and certainly no sanctity.

153. Another category of forum shopping is approaching different courts for the same relief by making a minor change in the prayer clause of the petition. In  Udyami Evam Khadi Gramodyog Welfare Sanstha v. State of U.P., (2008) 1 SCC 560, it was noticed by this Court that four writ applications were filed by a litigant and although the prayers were apparently different, the core issue in each petition centred round the recovery of the amount advanced by the bank. Similarly, substituting some petitioners for others  with a view to confer jurisdiction on  a

50

particular court would also amount to forum shopping by that group of petitioners.

154. Finally and more recently, in Supreme Court Advocates­ on­Record Assn. v. Union of India (Recusal Matter), (2016) 5 SCC 808,  Khehar,  J.  noticed  yet  another form of forum shopping where a litigant makes allegations of a perceived conflict of interest against a Judge requiring the Judge to recuse from the proceedings so that the matter could be transferred to another Judge.

155. The decisions referred to clearly lay down the principle that the Court is required to adopt a functional test vis­à­vis the litigation and the litigant. What has to be seen is whether there is any functional similarity in the proceedings between one court and another or whether there is some sort of subterfuge on the part of a  litigant.  It is this functional test that will  determine whether a litigant is indulging in forum shopping or not.”

39. In  Bal Kishan Giri v. State of Uttar Pradesh, (2014) 7 SCC 280,

this Court has considered derogatory remarks and efforts to destroy

the system. The relevant portions are extracted hereunder:

 “12.  This Court in  M.B. Sanghi  v.  High Court of Punjab and Haryana, (1991) 3 SCC 600, while examining a similar case observed: (SCC p. 602, para 2)

“2. … The foundation of [judicial] system which is based on the independence and impartiality of those who man it will be shaken if disparaging and derogatory remarks are made against the presiding judicial officers with impunity. It is high time that we realise that the much cherished judicial independence has to be protected not only from the executive or the legislature but also from those who are an integral part of the system. An independent judiciary is of vital importance to any free society.”

13.  In  Asharam M. Jain  v.  A.T.  Gupta, (1983)  4  SCC 125, while dealing with the issue, this Court observed as under: (SCC p. 127, para 3)

“3.  … The  strains  and  mortification  of litigation cannot  be allowed to lead litigants to tarnish, terrorise and destroy the system of administration of justice by vilification of Judges. It is not that Judges need be protected; Judges may well take care of themselves. It is the right and interest of the public in the due administration of justice that has to be protected.”

14.  In Jennison v.  Baker, (1972) 2 QB 52, All ER p. 1006d, it was observed: (QB p. 66 H)

51

“… ‘The law should not be seen to sit by limply, while those who defy it  go  free,  and those who seek  its  protection  lose hope.’”

40. The  decision  in  All India Institute  of  Medical  Sciences  v.  Prof.

Kaushal K. Verma, (2015) 220  DLT  446  (W.P. [C]  No.4103/2014),

rendered by one of us, Ravindra Bhat, J., has also been referred, thus:

“25. Before ending this unusually prolix order, which can run into the danger of self­vindication, the Court observes that requests for recusal are to be based on reasonable apprehensions; they cannot be speculative or fanciful suppositions. An observation that needs to be emphasized is that recusals generally, and especially those fuelled by unjustified demands can be burdensome on the judges who are eventually called upon to decide the cause. Whenever made, the concerned court or judge so charged is bound to take it seriously, as it undermines what is the bedrock of justice delivery­ impartiality. To borrow the words of Beverely Mclachlin (Chief Justice of Canada) ("Judging in a Democratic State") :

"…judges are not living Oracles. They are human beings, trained in the law, who struggle to understand the situations before them and to resolve them in accordance with the law and their  consciences.  And  judges must learn  to live  with being  wrong.  As  human beings, judges learn  early in their career to deal with criticism. Every new judge dons the judicial robes resolved never to make a mistake. And every new judge fails. Decisions must sometimes be made without the opportunity for full reflection.  The law may  not  be  entirely clear. The truth may be elusive. In the result, even the best judges inevitably are found to have erred. The errors are publicly identified by appellate judges and laid plain for all to see. The fact that appellate judges themselves have been known to err may provide only limited consolation."

If one may add, the greater the experience of the judge, the more acutely she or he is aware of her or his fallibility and the pitfalls of acting  on impulse or  prejudice. The journey,  which  begins  with certainty, later leads to a  path of  many grey areas.  Given that language itself is an imperfect medium, words are but vessels giving shape to ideas and that no human being is perfect, no judge can claim  to  be perfect in  communicating ideas.  The  emphasis  on a phrase here or an expression there, bereft of anything more, would not ipso facto disclose a predilection, or pre­disposition to decide in a particular manner.”

There is a concurring opinion thus: 52

“1. I have seen the draft of the order, prepared by my brother S. Ravindra Bhat, J., on the request of recusal by the Division Bench headed by him. I fully concur with the conclusions reached by him and the reasoning leading thereto. I would only add that the request for recusal by the Bench ignores the fact that it comprises of two Judges each  of  whom have an independent  mind to  apply.  The presence of another Judge with equal say strengthens the rigor of the judicial scrutiny and cannot be undermined.”   

41. Mr.  Shyam Diwan,  learned senior counsel  has referred to the

foreign Rules stating “what  is  at stake  is  the confidence which the

courts in a democratic society must inspire in the public.  Accordingly,

any judge in respect of whom there is a legitimate reason to fear a lack

of impartiality must withdraw”.  In support of his submission, he has

referred to Section 47 of Title 28, Judiciary and Judicial Procedure,

1948 of United States of America; and Rule 24(5)(b) of Rules of Court

of the European Union, stating that there is a statutory bar on any

judge presiding over cases where judgments delivered by him are to be

adjudicated upon in appeal.

42. The decisions and rules relating to the appeal against Chamber

Judge are not at all relevant. There is no appeal within the Supreme

Court. It has a totally different structure, and has its own corrective

mechanism, need not be gainsaid. There  is no room for reasonable

apprehension to be entertained by the clientele  of  the respondent’s

counsel. There is no question of recusal on pre­disposition as to the

legal issue or as to the relief to be granted, such an apprehension also

53

is baseless.  The ultimate test is that it is for the Judge to decide and

to find out whether he will  be able to deliver impartial justice to a

cause with integrity with whatever intellectual capacity at his

command and he is not prejudiced by any fact or law and is able to

take an independent view.   The answer would lie in examining

whether without having any bias or without any pressure or not even

irked by such a prayer for recusal, can he decide the case impartially.

In case the answer  is that he will  be able  to  deliver  justice to  the

cause,  he cannot and must  not recuse  from any case as the duty

assigned by the Constitution has to be performed as per the oath and

there lies the larger public interest.   He cannot shake the faith that

the common man reposes in the judiciary as it  is the last hope for

them.

43. Having surveyed  the  precedents  cited  at the  Bar,  and having

considered the arguments, it is my considered view that a judge

rendering a judgment on a question of law would not be a bar to her

or his participation if in a larger Bench if that view is referred for re­

consideration.  The previous  judgment cannot constitute bias,  or a

pre­disposition ­ nor can it seem to be such, so as to raise a

reasonable apprehension of bias.   Nor can expressions through a

judgment (based on the outcome of arguments in an adversarial

process) be a “subject matter” bias on the merits of a norm or legal

54

principle, or provisions.   The previous decisions and practice of this

court  have  clearly shown  that there can  be  and is  no  bar  as the

respondents’ senior counsel argue.   Accepting the plea of recusal

would sound a death knell to the independent system of justice

delivery where litigants would dictate participation of judges of their

liking in particular cases or causes.

44. 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.  The law laid down in various decisions has compelled me not

to recuse from the case and to perform the duty irrespective of the

consequences, as nothing should come in the way of dispensation of

justice or discharge of duty as a Judge and judicial decision­making.

There is no room for prejudice or bias. Justice has to be pure,

untainted, uninfluenced by any factor, and even decision for recusal

cannot be influenced by outside forces. However, if I recuse, it will be

a dereliction of duty, injustice to the system, and to other Judges who

are or to adorn the Bench/es in the future. I have taken an informed

decision after considering the nitty­gritty of the points at issue, and

very importantly, my conscience. In my opinion, I would be

committing a grave blunder by recusal in the circumstances, on the

grounds prayed for, and posterity will not forgive me down the line for

55

setting  a  bad precedent. It is  only for the interest  of the judiciary

(which is supreme) and the system (which is nulli secundus) that has

compelled me not to recuse.    

……………………..J. (Arun Mishra)

NEW DELHI; OCTOBER 23, 2019.      

56

                                                                       REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) NO.9036-9038 OF 2016

INDORE DEVELOPMENT AUTHORITY         ...PETITIONER

VS.

MANOHARLAL AND ORS. ETC.                  ...RESPONDENTS     

    WITH

[C.A.NO.19532-19533/2017,  SLP  (C)  NO.9798-9799/2016,

SLP  (C)  NO.17088-17089/2016,  SLP  (C)  NO.  37375/2016,

SLP  (C)  NO.37372/2016,  SLP  (C)  NO.16573-16605/2016,

SLP  (C)...CC  NO.15967/2016,  C.A.NO.19356/2017,

C.A.NO.19362/2017,  C.A.NO.19361/2017,  C.A.NO.

19358/2017,  C.A.NO.19357/2017,  C.A.NO.  19360/2017,

C.A.  NO.19359/2017,  SLP(C)  NO.  34752-34753/2016,  SLP

(C)  NO.15890/2017,  C.A.NO.19363/2017,

C.A.NO.19364/2017,  C.A.NO.19412/2017,  MA

NO.1423/2017  IN  C.A.  NO.  12247/2016,  SLP  (C)

NO.33022/2017,  SLP  (C)  NO.33127/2017,  SLP  (C)  NO.

33114/2017, MA NO.1787/2017 IN C.A.NO. 10210/2016, MA

NO.1786/2017  IN  C.A.NO.10207/2016,  MA  NO.45/2018  IN

C.A.NO.6239/2017,  SLP  (C)  NO.16051/2019,  DIARY

NO.23842/2018  &  SLP  (C)  NO.  30452/2018,  CA

NO.4835/2015 & SLP (C) NO.30577-30580/2015]

57

O R D E R

1.  We have gone through the draft opinion circulated by

Arun Mishra J. An application for recusal is dealt with- and

has  been  dealt  with,  in  this  case,  by  the  concerned

member of the Bench whose participation is sought to be

objected to.   

2. The approach to be adopted by other members of the

Bench  to  this  sensitive  issue-  in  such  cases,  is  best

summarized in the view of Justice Madan B. Lokur Supreme

Court Advocates-on-Record-Association and Ors. vs. Union

of India 2016 (5) 808 where it was stated as follows:

“In my respectful opinion, when an application is made for the recusal of a judge from hearing a case, the application is made to the concerned judge  and  not  to  the  Bench  as  a  whole. Therefore, my learned brother Justice Khehar is absolutely correct in stating that the decision is entirely his, and I respect his decision.

539. In a detailed order pronounced in Court on its own motion v. State and Ors. reference was made to a decision of the Supreme Court of the United States in Jewell Ridge Coal Corporation v. Local No. 6167, United Mine Workers of America 325 US 897 (1945), wherein it was held that a complaint as to the qualification of a justice of the Supreme Court to take part in the decision of a  cause  cannot  properly  be  addressed  to  the

58

Court as a whole and it is the responsibility of each  justice  to  determine  for  himself  the propriety of withdrawing from a case.

540.  This  view  was  adverted  to  by  Justice Rehnquist in Hanrahan v. Hampton 446 US 1301 (1980) in the following words:

‘Plaintiffs-Respondents and their counsel in  these  cases  have  moved  that  I  be recused  from  the  proceedings  in  this case for the reasons stated in their 14- page motion and their  five appendices filed with the Clerk of this Court on April 3, 1980. The motion is opposed by the state-Defendant  Petitioners  in  the action. Since generally the Court as an institution  leaves  such  motions,  even though they be addressed to it,  to the decision  of  the  individual  Justices  to whom they refer, see Jewell Ridge Coal Corporation  v.  Mine  Workers  325  U.S. 897  (1945)  (denial  of  petition  for rehearing)  (Jackson,  J.,  concurring),  I shall  treat  the motion as addressed to me  individually.  I  have  considered  the motion, the Appendices, the response of the  state  Defendants,  28  U.S.C.  455 (1976 ed. And Supp. II), and the current American  Bar  Association  Code  of Judicial  Conduct,  and  the  motion  is accordingly denied.’

541.  The  issue  of  recusal  may  be  looked  at slightly differently apart from the legal nuance. What would happen if, in a Bench of five judges, an application is moved for the recusal of Judge A  and  after  hearing  the  application  Judge  A decides to recuse from the case but the other four  judges  disagree  and  express  the  opinion

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that there is no justifiable reason for Judge A to recuse  from  the  hearing?  Can  Judge  A  be compelled to hear the case even though he/she is desirous of recusing from the hearing? It is to get  over  such  a  difficult  situation  that  the application  for  recusal  is  actually  to  an individual judge and not the Bench as a whole.

542.  As far  as  the view expressed by Justice Kurian  Joseph  that  reasons  should  be  given while  deciding  an  application  for  recusal,  I would  prefer  not  to  join  that  decision.  In  the first place, giving or not giving reasons was not an issue before us. That reasons are presently being  given  is  a  different  matter  altogether. Secondly, the giving of reasons is fraught with some  difficulties.  For  example,  it  is  possible that  in  a  given  case,  a  learned  judge  of  the High  Court  accepts  an  application  for  his/her recusal  from  a  case  and  one  of  the  parties challenges  that  order  in  this  Court.  Upon hearing  the  parties,  this  Court  comes  to  the conclusion  that  the  reasons  given  by  the learned judge were frivolous and therefore the order is incorrect and is then set aside. In such an event, can this Court pass a consequential order requiring the learned judge to hear the case  even  though  he/she  genuinely  believes that he/she should not hear the case.”

3. In view of the above, we are of the opinion that the

view of Mishra, J, to reject the application for recusal, is not

a matter that can be commented upon by us.

4. With respect  to  the observations by Mishra,  J  in  his

opinion, regarding the legal principles applicable, we are of

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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.

5. We notice  that  his  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.

6. For those and other reasons mentioned in the order of

Mishra,  J,  we  concur  with  his  reasoning  and conclusions

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.

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7. For  the  above  reasons,  and  having  regard  to  the

reasons  contained  in  Mishra,  J’s  order,  outlining  the

rejection  of  the  request  for  his  recusal,  we  are  of  the

considered opinion that this Bench should proceed to hear

and decide the reference made to it, on its merits.

........................................J.  [INDIRA BANERJEE]

........................................J.                                     [VINEET SARAN]  

........................................J.   [M.R. SHAH]

........................................J.                                      [S. RAVINDRA BHAT]  

New Delhi,   October 23, 2019.

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