The judgment delivered as a single judge bench by Justice Nagmohandas was filed by some of the landowners belonging to these two villages
In rare instance, a Division Bench of the Karnataka High Court has set aside a judgment delivered by a sitting judge in a land acquisition case relating to a housing society, for the reason that the judge was “disabled” from hearing the case as he had contested the same issue before the High Court as an advocate prior to his elevation as a judge.
Quoting the famous rule against bias - Nemo esse judex in causa propia sua (no one should be a judge in his own case), a Division Bench comprising Justice N. Kumar and Justice H.S. Kempanna has said in its recent verdict pointed out that the judge (Justice H.N. Nagmohandas) had appeared as an advocate representing a petitioner in a Public Interest Litigation [WP (PIL) 24386/1999] and had decided the same issue in his recent judgement.
A Division Bench of the High Court in its September 2000 verdict had dismissed the PIL while imposing a cost of Rs.1,500 on the petitioner, who was represented by Justice Mr. Nagmohandas as an advocate then.
The PIL had questioned acquisition of all lands in favour of the National Technological Institutions (NTI) Housing Cooperative Society Ltd during 1985-86 at Kothihosahalli and Kodigehalli village of Yalahanka hobli.
The judgment delivered as a single judge bench by Justice Nagmohandas was on the petitions [WP 1998-2032/2010] filed by some of the landowners belonging to these two villages challenging acquisition of their lands in favour of the society during 1985-86 through the same notifications that were challenged in the PIL.
The result of the judgment, delivered by Justice H.N. Nagmohandas on November 10, 2010 allowing petitions of some of the land owners, was that it had the effect of even partially overturning the verdict delivered by a Division Bench in September 2000 dismissing the PIL 24386/1999, the Bench pointed out that such a judgement was against the above rule against bias.
The Bench also cited at least 11 other verdicts of the High Court delivered during 1993-99 in which acquisition of these lands were upheld while dealing with different petitions and appeals.
“It is difficult to prove the state of mind of a person. Bias is likely to operate in a subtle manner. The test is not whether in fact bias has affected the judgement. The test always is and must be which a litigant could reasonably apprehend that a bias attributed to a judge might have operated against him in the final decision rendered by a judge.
“Therefore we have to see whether there is reasonable ground for believing that the learned Judge was likely to have been biased. In our view, certainly learned Judge was disabled from the said matter,” the Bench said while remanding the appeals filed by the society to single judge bench (other than Justice Nagmohandas) for fresh hearing.