Exclusive: Missing opinion of Mohan Shantanagoudar J. in Indore Development Authority creates another controversy

The judgment rendered by a three-judge Bench of the Supreme Court in Indore Development Authority v. Shailendra (Dead) Through Lrs. And Ors. had created quite a flutter in the Supreme Court of India.

The hullabaloo surrounding the same seemed to have died down, with Justice Dipak Misra referring the matter to a Constitution Bench. However, a new episode has come to light with regard to the judgment.

The judgment was delivered by Bench of Justices Arun Mishra, AK Goel and Mohan Shantanagoudar. This Bench had, by a 2:1 majority, held a 2014 judgment passed by the Supreme Court in Pune Municipal Corporation to be per incuriam.

Interestingly, though Justice Mohan Shantanagoudar had sided with the majority judges with respect to five questions decided in the dispute, he had dissented with respect to the question of correctness of the judgment in Pune Municipal Corporation v. Harakchand Misirimal Solanki.

However, when the judgment was uploaded on the website of the Supreme Court of India, the dissenting opinion of Justice Shantanagoudar was missing.

A number of private law journals and publications including Bar & Bench had reported the said case without the judgment of Justice Shantanagoudar, as it was not available (the judgment as first published on the website of the Supreme Court is embedded below). However, the dissenting opinion appeared on the website subsequently.

It is now learnt that the fact that a number of private law journals did not publish the dissenting opinion has not gone down well with the concerned authorities.

The Supreme Court has now issued a circular to a list of law journals asking them to publish the dissenting judgment along with the majority opinion.

The Court has also asked the law journals to publish a corrigendum, and also cautioned them against making such omissions/lapses in future.

The fact remains that the omission/lapse came from the Supreme Court itself, as it failed to publish the dissenting opinion of one of the judges. It therefore seems strange that the Court should subsequently shift the blame on to the publications for merely reproducing what the Supreme Court website had initially put out.

What is also interesting is that the judgment of Justice Shantanagoudar seems to answer precisely the very question which had led to a controversy in the first place.

The majority opinion i.e. the opinion of Justices Arun Mishra and AK Goel had held that a 2014 judgment passed by the Supreme Court in Pune Municipal Corporation case is per incuriam.

The catch was that the Pune Municipal Corporation judgment was also rendered by a three-judge Bench, which comprised Justices Madan Lokur and Kurian Joseph, and former Chief Justice of India RM Lodha.

Subsequent to the Indore Development Authority, when some land acquisition matters came up before a Bench of Justices Lokur, Joseph and Deepak Gupta, the judgment in Indore Development Authority was brought to the notice of the judges by the parties.

The Bench then took strong objection to the judgment in Indore Development Authority with Justice Kurian Joseph in particular, expressing his disapproval at a three-judge Bench holding a decision rendered by another three-judge Bench, per-incuriam.

The whole issue was subsequently referred to a Constitution Bench by the Chief Justice of India.

Justice Shantanagoudar’s dissenting view on this aspect, however, makes it clear as to why he did not hold Pune Municipal Corporation per incuriam. He writes that though he cannot agree with the outcome of Pune Municipal Corporation, he cannot hold it per incuriam since it was also decided by a Bench of three judges. 

“…according to me the judgment in Pune Municipal Corporation (supra) is not rendered in per incuriam. In view of the above, the judgment in Pune Municipal Corporation (supra) may have to be reconsidered by a larger bench, inasmuch as Pune Municipal Corporation (supra) was decided by a bench of three judges.”

Read the initial version and latter versions of the judgment published on SC website.