[Automatic Vacation Of Interim Orders] Is Article 226(3) Directory or Mandatory? Gauhati HC Refers Issue To Larger Bench [Read Judgment]

A division bench of the Gauhati High Court has opined that the Clause (3) of Article 226(3) which deals with automatic vacation of interim orders, is directory.

As an earlier division bench judgment had held that the provision is mandatory, the division bench comprising of Justices N. Kotiswar Singh and S. Hukato Swo referred the issue to a larger bench.

Background

In this case, an interim order was passed by a single bench in a writ petition. The respondents filed a petition seeking vacation of interim order. Before the Single Bench, it was contended that, the application for vacating of stay orders was served on the Counsel for the writ petitioners on 21.01.2020 and as such, 2 weeks would have expired on 04.02.2020, and since the application was not disposed of within 04.02.2020, that is, within 2 weeks of furnishing of the application for vacating the stay orders, by virtue of the provision under Article 226(3), the said interim orders passed by the Court would stand automatically vacated. This plea was dismissed by the Single Bench.

Assailing this order of the single bench, and also seeking to vacate the interim orders, the respondents approached the Division Bench filing an intra court appeal. One of the legal issues that arose for the consideration of the Division Bench was whether the Clause (3) of Article 226 is directory or mandatory.

Article 226(3)

Article 226(3) provides that when a party makes an application to the High Court for the vacation of an interim order (which was passed ex parte) and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of 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 from 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 open; 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.

Many HCs Have Held That Article 226(3) Is Mandatory

At the outset, the bench noted that there is an early decision of the Gauhati High Court itself in South East Bus Association and Ors. Vs. The State of Assam, that the provision is mandatory. The Bench also observed that the High Courts of Rajasthan, Calcutta, Kerala, Gujarat, Allahabad have taken the similar view that if the Court does not dispose of the application for vacating the interim order within 2 weeks of the furnishing a copy of the application for vacation to the party in whose favour the earlier interim order was passed, the said interim order will stand vacated automatically.

It also referred to a Madras High Court judgment in T. Gnanasambanthan (Dr.) v. Board of Governors, in which a contrary view was taken. It was observed therein that, if the application could not be disposed of by the court within 2 weeks because of reasons attributable to the Court, no party should be made to suffer and hence there would not be an automatic vacation of the interim order. The bench said that it is inclined to subscribe to this view taken by the Madras High Court. The bench said:

"If this wide discretionary power of the High Court to reach injustice wherever it is found, is curtailed by imposing an inflexible procedural provision under Article 226(3) that the High Court has to dispose of an application within 2 weeks, otherwise the interim order passed by it will automatically get vacated, it flies in the face of the wide discretionary power of the High Court to grant appropriate relief to reach injustice wherever it is found. It amounts to putting a procedural restriction on a wide discretionary power and thus negates the very essence of discretionary power given to the High Court....

...The power to grant interim relief is inherent in the High Court which has the jurisdiction and authority to finally determine the lis and rights of the parties and grant appropriate final order. This discretion to pass appropriate interim order for such period as the Court may deem fit is an inalienable part of the inherent power of the Court which in our opinion could not be curtailed by a processual provision. This provision, thus, hits at the very heart of the inherent and discretionary power of the Court to grant appropriate relief in exercise of judicial review, if this provision is to be considered to be mandatory in nature. However, if it is read to be directory in nature, this limitation on the power of the Court can be reconciled and harmonised."

Observing thus, the bench concluded that even though there are facets of law which support the view that Clause (3) of Article 226 of the Constitution of India is mandatory in nature, there are more overwhelming attributes to show that this provision is directory in nature. Since there is a contrary earlier view taken by the High Court, the bench directed the Registrar to place this matter before the Chief Justice. However, in facts of the case, the bench dismissed the appeal holding that the single judge was right in holding that a copy of the application was served upon the respondents on 31.01.2020 and not 21.01.2020, and thus there would not be vacation of interim order by default, in any case. 

Case no.: WRIT APPEAL 3(K) OF 2020
Case name: Rukuvoto Ringa vs. Meyalemla
Coram: Justices N. Kotiswar Singh and S. Hukato Swo 
Counsel: Sr. Adv R. Iralu, Adv Z. Zhimomi and State Counsel N. Mozhui

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