Justice Arun Mishra, heading a constitution bench on the land acquisition law, on Tuesday took umbrage when his recusal was sought on the grounds that he would be sitting on judgment on a verdict that he himself had given while presiding over a three-judge bench in 2018.

“All of us have dealt with the issue some time or the other. Tell me who has not been a part? So should the disqualification be for all of us?” Justice Mishra asked senior advocate Shyam Divan, who was appearing for landowners from Tamil Nadu and had sought the judge’s withdrawal.

The constitution bench had been set up after the 2018 verdict, holding that acquisition proceedings would not lapse and land would not be returned to the landowners if they refused compensation, was stayed after it was found to contradict a 2014 judgment by another three-judge bench that had ruled that the proceedings would lapse after five years if compensation was not paid to the owners or not accepted by them.

Seeking Justice Mishra’s withdrawal on grounds of judicial propriety, Divan said the constitution bench was examining the correctness of a verdict he had himself authored.

“It was an over-100 page judgment in which Justice Mishra has expressed his mind and said that other view taken by a bench of similar strength is per incuriam (bad in law),” Divan said.

Justice Mishra responded: “Doesn’t this amount to maligning the institution? This matter should not have been listed before me. But now it is before me so the question of my integrity has arisen.”

The other members of the five-judge bench set up to interpret the provisions of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, are Justices Indira Banerjee, Vineet Saran, M.R. Shah and Ravindra Bhat.

The judge told the senior advocate: “If you had left it to me, I would have decided. Come to my chamber and I will tell you what I would have done. But you (land owners and activists) are taking to social media to malign me, the Chief Justice also….”

If appeals for recusals are made in such a manner then even the CJI, who is the master of the roster, would find it difficult to set up a bench in most cases, he said.

Appearing for the Centre, solicitor general Tushar Mehta said the bench must ignore the request for recusal and proceed with the hearing.

But another senior advocate Dinesh Dwivedi, appearing for landowners, said Justice Mishra must recuse to instil confidence among the litigants and said that “justice not only should be done but also to be seen as being done”.

Justice Mishra then observed: “I have had a view but I am open to corrections and can correct my view. Not necessary that my view will prevail over here. There is nothing to be touchy about any view. This is not an appeal but only a question of law to be determined.”

Justice M.R. Shah asked Divan why the matter taken to social media first.

The bench felt it was imperative to first decide on the legal principle raised before it, which is whether a judge shuld recuse and under what circumstances. The arguments will resume on Wednesday.