Wednesday 1 April 2015

WHY ARGUE, WHEN INTERIM ORDERS DIE IN TWO WEEKS?

Any advocate following my dear friend G.R.Swaminathan in the Madurai Bench would have seen with amusement, he throwing the provisions of Article 226(3) of the Constitution of India before the Judges to bolster a point that any ad-interim order passed in a Writ Petition has a shelf value of only two weeks and not thereafter!

Naturally the Judges are embarrassed as it is near impossible, with the present infrastructure to decide any application to vacate an interim order within two weeks.

Article 226(3) inserted by way of substitution in the Constitution (Forty-Fourth Amendment) Act, 1978 provides that if an application to vacate an interim order is not disposed within two weeks, the interim order shall stand vacated on the next day of the expiry of two weeks period. The period is to be counted either from the date on which the application is served to the other side or filed whichever is later.

Last week, a friend expressed surprise that a Judge in Principal Bench has held the said provision is directory and not mandatory. The Judge might have felt it is nothing but practical to hold the provision as directory. Any other conclusion would have a cascading effect, leading to a disastrous result of automatic vacation of almost all the interim orders granted in the pending Writ Petitions/ Appeals.

However any rigid interpretation of law will tilt the balance towards holding this provision as mandatory. The language of this provision is much different from the similar provisions in other legislations, fixing a time limit for the Court to decide a dispute. For instance the provisions of Section 13 (3A) of Consumer Protection Act’1986 or even Rule 3A of Order 39 of the Civil Procedure Code though prescribe a time limit for the disposal of applications are not providing for any consequence, if it is breached. The Court has to only record reasons. Now by judicial precedent, the respondent will get a right of appeal as for as the ad-interim orders in suits are concerned.

On the other hand, Article 226(3) provides for a consequence that too in an unequivocal term leaving no room for dilution that the interim order shall stand vacated.

It is expected that all High Courts, dealing this inconvenient issue have held that the provision is mandatory and not directory as reportedly held by our High Court. The Calcutta High Court in Krishan Kumar Agarwala Vs Reserve Bank of India reported in AIR 1991 Cal 272 rejected the submission that 'an act of the court shall prejudice no man’ (actus curiae neminem gravabit) by following an earlier judgment of Rajasthan High Court holding 'that it was for the party who had obtained, an ex parte order, to take "active steps" to get the matter listed in Court within the period specified after he has received a copy of the application for vacation and that if he does not do so, he can do so at his own peril'.

The passionate argument by the Counsel that it was no fault of the Writ Petitioner in whose favour the order was made as the Petition not be so disposed of due to inadvertence of the office of the Court in listing the application or due to the Court itself being pre-occupied with other matters failed to cut ice but earned only the sympathy of the Court.

The only saving grace is an observation that 'nothing shall prevent the Court to grant an interim order afresh after hearing the parties, on the application for vacation or otherwise, if the Court finds sufficient grounds to make such fresh order'. Accordingly the Calcutta High Court considered the matter afresh for the grant of interim order but to be rejected.

The consequence is that on the expiry of prescribed period, the Respondent is not committing contempt in acting as if there is no interim order, no matter it is an order not limited by time. The Allahabad High Court in Justice Palok Basu (Rtd) Vs Sri R K Kulshrestha reported in 2007 (1) AWC 781 similarly held that any action taken contrary to the interim order after the expiry of such term would not amount to contempt.

In the meanwhile the Division Bench of Allahabad High Court in Dr.R.C.Chaudhary Vs Vice Chancellor B R Ambedkar University reported in AIR 2004 All 95 went even deeper into this issue by examining the intent of legislature and held that the provision is mandatory. However while concluding the judgment, an observation is made that the 'Respondent cannot claim that the interim order shall stand vacated, by filing the vacate stay application in a leisurely manner'. This unwarranted observation has the effect of creating confusion as to what length of term is 'leisurely manner'. The term 'reasonable time' mentioned in this judgment is relative and may anything between 10 days to 10 years. A person standing in contempt is entitled to argue that anytime is reasonable time. The court may have to accept his submission as the consequences of contempt proceedings is penal in nature.

The situation is no different, even if this provision is held to be directory. Still, it is possible for any contemnor to argue that in the given circumstance that order deemed to have been vacated by the operation of Article 226(3) and no Court could imprison a contemnor, when the continuance of the interim order is under cloud.

Hence the only possible way out is to pass a specific order extending the ad-interim orders every two weeks. Such measure will bring more pressure on the already over-worked Registry in listing the matter every two weeks and preparing order copies...

My friend commented, the CPC was amended by those who would not have practised a single day in a sub-ordinate court. Well, it is the same with the case of any legislation, mandating a time limit to the Courts...

Madurai
08/04/14

When I published the above article as my Face Book status message on 08/04/14, I did not have the privilege to know the Judgement of Justice Ramasubramaniam in Dr.T.Gnanasambhanthan Vs Board of Governors reported in (2014) 3 MLJ 1, where the Judge has held that the interim order would not go as no party can be prejudiced by the 'act of omission' on the part of the Court as the obligation was on the Court to take the hearing of the Miscellaneous Petition. However the question remains, what if a party argues in a Contempt Petition that he was under the bonafide impression that the interim order did not continue in view of the provisions of the Constitution and he the disobedience not willful.

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