Gujarat High Court
District Development Officer vs Maniben Virabhai on 25 April, 2000
Equivalent citations: AIR2000GUJ255, (2000)2GLR1436, (2001)1UPLBEC447, AIR 2000 GUJARAT 255, 2000 A I H C 4338, (2000) 2 GUJ LR 1436, (2000) 2 GUJ LH 204, (2001) 2 LANDLR 463, (2000) 4 SCT 255, (2000) 5 SERVLR 183, (2001) 1 UPLBEC 447, (2000) 4 ESC 2707
Author: D.M. Dharmadhikari
Bench: D.M. Dharmadhikari
JUDGMENT D.M. Dharmadhikari, C.J.
1. In this reference by the learned single Judge to the Full Bench of this Court, the question involved is of correct interpretation of Clause (3) of Article 226 of the Constitution of India, which is substituted by the Constitution (44th Amendment) Act, 1978.
2. In the course of deciding Civil Application No. 1724 of 1995 in the present Special Civil Application No. 642 of 1994, the learned single Judge M.R Calla, J. noticed that interpretation placed on Clause (3) of Article 226 of the Constitution of India, by the learned single Judge H.L. Gokhale, J. (as he then was) in the decision reported in (Mrs.) S.N. Pandor v. District Judge, District Court, Sabarkantha, (1995) 2 Guj LH 976 requires consideration by a larger Bench of this Court.
3. Clause (3) of Article 226 introduced by the 44th Amendment Act, 1978, as the text of the said clause shows, obviously was with an intention that ex parte interim orders by way of injunction or stay in proceedings under Article 226 of the Constitution passed against the party by the High Court should not operate to the prejudice of that party for an indefinite period of time. Clause (3) of Article 226 therefore requires that an interim order by way of injunction or stay obtained without furnishing to the party against whom the order is made, copy of such petition and all documents in support of the plea for such interim order and giving such party an opportunity of being heard, shall automatically stand vacated if the aggrieved party makes an application to the High Court for vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party and on completion of such formalities the High Court fails to dispose of the application for vacating the interim order within a period of two weeks from the date on which the application for vacating interim order is received, or from the date on which the copy of such application is so furnished to the opposite party, whichever is later, or where the High Court is closed on the last day of that period before the expiry of the next date afterwards the High Court is opened.
4. The contents and language employed in Clause (3) of Article 226 clearly convey the intention of the Parliament that the life of an interim ex parte order/stay/injunction passed by the High Court in proceedings under Article 226 of the Constitution shall be for a maximum period of two weeks if the applicant is served with the application for vacation/ modification of ex parte order, unless in the mean time on the application of the party aggrieved by such ex parte order the High Court decides to continue the order of stay or varies or confirms the same.
5. In order to understand the interpretation placed by learned single Judge, H.L. Gokhale, J. on Clause (3) of Article 226, it would be necessary to reproduce Clause (3) verbatim;
"(3) When any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made, on or in any proceedings relating to, a petition under Clause (1), without --
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, Makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel for such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or for the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is opened, and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be the expiry of the said next day, stand vacated."
(Underlining for pointed attention)
6. Before the learned single Judge H.L. Gokhale, J. decision of learned single Judge of Calcutta High Court in Krishan Kumar Agarwala v. Reserve Bank of India, AIR 1991 Cal 272 was cited for the purpose of construction and interpretation of the said sub-clause, Calcutta High Court held that the provision in Clause (3) is of a mandatory nature. Another decision of learned single Judge, G.M. Lodha, J. of Rajasthan High Court in Gheesa Lal v. State of Rajasthan, AIR 1981 Raj 65 was also cited before the learned single Judge, H.L. Gokhale, J. The learned single Judge of Rajasthan High Court in construing Clause (3) of Article 226 and considering its effect held as under :--
"It is true that the office of this Court should immediately take steps for listing this application, in the Court and in view of the constitutional mandate, and the serious consequences which may ensue, the petitioner as well as the Court's office, both must get the matter considered by the Court immediately. However, if that is not done, the petitioner cannot escape the liability by pointing out that office has failed to list the case in Court. This is so, because when the petitioner has successfully obtained an ex parte stay order, it is he who should take the steps for getting the case listed on the very next day or within the statutory period of 2 weeks and having not done so, he cannot be allowed to prolong the stay order by delay on the part of the office. In case 14 days are likely to expire and the office has failed to list the case, counsel for the petitioner can bring it to the notice of the Court and get it listed immediately by obtaining instructions of the Court. I am, therefore, firmly of the opinion that this constitutional mandate admits of no exceptions and therefore, even without passing any order on the application, ex parte ad interim stay order would stand vacated on the expiry of 14 days i.e. two weeks from the date of filing of the application or giving of the copies which ever is later. In the instant case, order dated 15th July. 1980 should stand vacated automatically on 23rd Sept. 1980."
The learned single Judge of Rajasthan High Court in the case (supra) held that once an application for vacating the ex parte interim order of stay or injunction is made, it is for the parties to get the matter listed before the Court, failing which, in terms of constitutional mandate the ex parte order shall stand automatically vacated. The learned single Judge, H.L. Gokhale, J. dissented from the view expressed by learned single Judge of Rajasthan High Court in the case of Gheesa Lal (supra). In his opinion, a judicial order cannot stand vacated by an administrative inaction on the part of the Registry. According to learned single Judge H.L. Gokhale, J. Clause (3) of Article 226 requires making of an application by the aggrieved party against the interim order to the High Court and the language so employed can be construed to mean making of such application to the learned Judge to whom the case is assigned for disposal. Gokhale, J. had held that mere filing or lodging of such application in the Registry cannot be construed as making of an application to the High Court. It would be better to express the opinion of learned single Judge H.L. Gokhale, J. in his own language which is contained in paragraph 8 of his order in (Mrs.) S.N. Pandore's case (1995 (2) Guj LH 976) (supra).
"As far as the proposition laid down by the learned single Judge of the Calcutta High Court is concerned, there is no reason to depart therefrom. However, in my understanding, the learned single Judge of the Rajasthan High Court has not taken into consideration one aspect, namely that the interpretation that he was accepting will lead to a judicial order being vacated by an administrative inaction. In my view such an interpretation cannot be contemplated. When Article 226(3) specifically requires an aggrieved party to make an application to the High Court for the vacation of such an order, that application will have to be construed as to be made to the learned Judge taking up the assignment. A filing or lodging of such an application in the Registry cannot be construed as making an application to the High Court. This is because it is the High Court which is supposed to dispose of the application within the period of two weeks from the date on which it is received or from the date on which the copy of the application is so furnished to the other side whichever is later. The disposal is also permitted to be done on a day next to the day on which the High Court is closed. When the Article speaks of the High Court disposing of the application it will have to be construed as disposing the application on merits and hence that is the responsibility of the learned Judge taking up the assignment. That responsibility will start from the day the application for vacation is made to the learned Judge. An interim ex parte order passed by the learned Judge will otherwise stand vacated even before the matter coming up before the learned Judge which is what has happened in the present case. For these reasons, I am unable to accept the view of the learned single Judge of the Rajasthan High Court expressed in paragraph 10 of his judgment that it is for the original petitioner to take active steps once the application is served on him. The original petitioner is of course expected to take active steps to have the application heard at the earliest, but that responsibility will start after the application is made to the learned Judge and not merely on lodging the application in the office of the Court and serving the same on the Counsel of the original petitioner. In my respectful understanding, the words, "makes an application to the High Court for vacation", have not been properly considered by the learned Judge who decided the matter in the Rajasthan High Court."
7. The learned single Judge, M.R. Calla, J. in his order dated 18-1-1996 of reference to the larger Bench has raised serious doubt on the correctness of the view expressed by H.L. Gokhale, J. and has formulated the following questions of law to be answered by us :
"In case an application under Article 226(3) of the Constitution of India for vacating an ex parte ad interim order is lodged in the Registry of the High Court.
1. Whether the time period of two weeks provided under Article 226(3) of the Constitution of India begins from the date of the copy of the application for vacating ex parte ad interim order is furnished to the party in whose favour ex parte ad interim order is operative ?
It would commence only from the date cognizance of such application is taken by the learned Judge taking up such matter ?
2. Whether the disposal of such application under Article 226(3) would only mean the disposal of such application on merits and the ex parte ad interim order shall continue even after the expiry of two weeks from the date the copy of the application for vacating the order is made available to the party in whose favour ex parte ad interim order is operative ?
3. In case, the application for vacating ex parte ad interim order is not disposed of within time limit as prescribed under Article 226(3) and interim order comes to an end by afflux of time by operation of the provisions of Article 226(3), will it be a case of vacation of judicial order by the inaction on the part of the Registry or it will be a case of natural consequences flowing from the provision contained in Article 226(3) of the Constitution ?
4. Whether the party against whom an ex parte ad interim order has been passed is under any obligation to move the Court for vacating ex parte ad interim order within the period of two weeks and not at any time thereafter ?
8. We have heard learned counsel Shri H.S. Munshaw appearing on behalf of the petitioner and Shri Y.S. Lakhani and Shri I.M. Pandya for the respondent No. 1. On our request learned counsel Shri Dhaval C. Dave, Shri A.K. Clerk and Shri M.V. Anjaria also addressed the Court, since the questions involved regarding interpretation of Clause (3) of Article 226 are of general public importance.
9. Sub-clause (3) of Article 226 no doubt is a procedural provision relating to the practice of the High Court, but it is part of a constitutional provision and according to the settled canons of interpretation of Constitution unless there is ambiguity in the language, the precise words used in the text, if are plain, they should be construed in their ordinary sense. Here we find that Sub-clause (3) speaks of "making of an application to the High Court for vacation of such order" and two weeks period to be reckoned "from the date on which it is received." In our considered opinion the use of expression "makes an application" and "the date on which it is received" is very significant: and makes the intention of the Parliament abundantly clear.
The learned single Judge in construing the above referred expression in Clause (3) of Article 226 appears to have been influenced by the fact that application for vacation of an order, according to the practice and rules of the High Court, is required to be filed in the Registry of the High Court. Learned single Judge H.L. Gokhale, J. therefore appears to be of the view that mere inaction on the part of the Registry in not placing the application before the assigned court should not result in vacation of stay or injunction as they would be an unjust consequence against the party which had obtained ex parte order with the control over the business of the registry and the Court.
10. In our considered opinion, where the language of constitutional provision is plain and unambiguous, the provision cannot be read down on consideration that if plain meaning is assigned the consequences would be inconvenient or unjust to a party. On the plain language of Clause (3), we do not find that the provision stating that the ex parte order of stay or injunction would stand vacated after a specified period of fulfilment of specified formalities by the party aggrieved, has any unjust result against the party who had obtained the ex parte order. The object and intention of the Parliament behind the constitutional amendment has to be kept good in view in construing the provision. The Parliament has noticed large number of cases where ex parte orders of stay or injunction are obtained by parties without furnishing copies of the petition and stay applications thus denying grant of opportunity to the opposite parties of hearing and such ex parte orders continue to remain in operation to the prejudice of the aggrieved parry for an indefinite period of time as the stay matters do not receive consideration by the High Court within a reasonable period of time. To protect the Interest of such aggrieved parties suffering under ex parte orders of stay or injunction, Article 226 in the Constitution is amended to incorporate Clause (3) providing for automatic vacation of ex parte order or stay, if the aggrieved party is not heard against the ex parte order within a specific period after it had approached the Court for the purpose in accordance with the laid down procedure.
11. In our opinion, the expressions employed in Clause (3) -- "makes an application" and "when it is received" are clearly intended to convey the meaning of filing of an application in accordance with the practice of the High Court. The said expressions on their plain language cannot be read to mean placing of an application before the concerned Judge to whom the case, in which the ex parte order is passed, has been assigned. All the High Courts in India have framed their own High Court Rules regulating their procedure. In Gujarat High Court Rules, 1993, the procedure for making applications under Article 226 is contained in Chapter XVII. Rule 188 of the Rules states that subject to Rules in Chapter XVII, the Rules in other Chapter shall apply mutaitis mutandis to petitions and applications under Chapter XVII laying down procedure for filing applications and writ petitions under Articles 226, 227 and 228. By virtue of Rule 188 in Chapter XVII, Rule 30 in Chapter IV which lays down the normal procedure of presentation of any application is applicable to application made under Article 226. Rule 30 of Chapter IV lays down a procedure stating that "all matters which are to be instituted in the High Court shall be presented in the office of the Registry to such person as the Registry by special or general authorities, ordinarily between 10.30 a.m. to 4.30 p.m."
12. The expression "making of an application" and "receiving of such application" cannot on their plain language be construed to mean cognizance of the application by the Judge to whom the case is assigned as per the roster prepared by the Chief Justice. Such an interpretation, as has been placed by Hon'ble H.L. Gokhale, J. is one sided and favours the party which has obtained the ex parte order. It defeats the purpose for which Clause (3) has been inserted in the Constitution to protect the aggrieved party from the ill effects of continuance of ex parte order obtained against it for an indefinite point of time.
13. In our considered opinion from Clause (3) the intention of Parliament Is very clear that an ex parte order of stay or injunction obtained in proceedings under Article 226 will have a maximum life of two weeks from the date the application is made by the opposite party and is received by the High Court or to the party obtaining such order. The specified period would not commence from the date it is actually placed before the Judge to whom the case is assigned on the judicial side. Maxwell in a book on "The Interpretation of Statutes" (12th Edition) has stated as under :--
"Enactments regulating the procedure in Courts are usually construed as imperative, even where the observance of the formalities in question is not a condition exacted from the party seeking the benefit of the statute, but a duty imposed on a Court or public officer when no general inconvience or injustice seems to call for a different construction."
Crales in "Statute Law" (7th Edition) contains the following statement of law on the canon of construction of an Act of Parliament :
"Words may be modified or varied where their import is doubtful or obscure, but we assume the functions of legislators when we depart from the ordinary meaning of the precise words used. Merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning."
14. We find that by putting a plain meaning to the language employed in Clause (3), no unjust results or consequences flow which can be said as contrary to the intention contained in the Constitutional amendment.
15. As has been stated by Maxwell in his authoritative work on Interpretation of Statutes :--
"Convenience is not always a safe guide to construction. However, difficult it may be to believe that Parliament ever really intended the consequences of a literal interpretation, "we can only take the intention of Parliament from the words which they have used in the Act, and therefore the question is whether these words are capable of a more limited construction. If not , then we must apply them as they stand, however, unreasonable or unjust the consequences, and however strongly we may suspect that this was not the real intention of Parliament."
16. Similar view has been expressed by the Supreme Court in Nyadar Singh v. Union of India, AIR 1988 SC 1979:
"It is true that where statutory language should be given its most obvious meaning --'to accord with how a man in the street might answer the problems posed by the words' --the statute must be taken, as one finds it. Considerations relevant to interpretation are not whether a differently conceived or worded statute would have yielded results more consonant with fairness and reasonableness.
Consequences do not alter the statutory language, but may only help to fix its meaning."
17. On the settled principles of interpretation of statutes and more so of the constitutional provision, we are, with utmost respect, of the considered opinion, that the learned single Judge H.L. Gokhale, J. as he then was, was not correct in reading something into Clause (3) which is not to be found in it. It is not possible to read that on the 'making of an application' by the aggrieved party for vacation of ex parte order or stay or injunction reckoning the prescribed period of two weeks would be from the date on which such application is placed before the Judge, to which the matter is assigned. In our considered opinion the views expressed by Calcutta and Rajasthan High Courts (supra) place such interpretation on Clause (3) which is in consonance with the settled canons of interpretation. We also do not find that Clause (3) of Article 226 lays down any time limit for making an application for vacating ex parte orders by the aggrieved party for statutory operation of automatic vacation of such ex parte order.
18. On the discussion aforesaid, we have answered all the questions posed by the learned single Judge M.R. Calla, J. formulated in his order. Our conclusion therefore, is that that on plain language of Clause (3) in Article 226, an ex parte order of injunction or stay shall stand vacated automatically after two weeks, if the aggrieved party completes all the formalities of making an application to the High Court and furnishing copy of such application to the party in whose favour the order is made. The period of limitation of two weeks specified under Clause (3) shall commence on the plain language of that Article from the date the application is received by the Registry of the Court or is furnished to the party for whose benefit it is passed whichever is later in accordance with the Rules and practice of the Court. In our opinion, action or inaction on the part of the parties or Registry shall have no consequence of undoing what the Constitution law contemplates of automatic vacation of the order after expiry of two weeks on the completion of required formalities of procedure and occurrence of eventualities mentioned in Clause (3) of Article 226.
19. In the result, with respect, we disagree with the view expressed by H.L. Gokhale, J. as he then was and overrule his decision in (Mrs.) S.N. Pandor (supra) (1995) 2 Guj LH
976. We affirm the views expressed by learned referring Judge M.R. Calla, J. and the opinions expressed in the case (supra) by Calcutta and Rajasthan High Courts. We are thankful to the counsel appearing for the parties and other members of the Bar in assisting us in deciding this reference on an important question of Constitution law. The reference having been answered, the present case be now placed before appropriate single Judge for decision on merits.