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Going against an earlier ruling of the Gauhati High Court, a Division Bench on Friday sided with the Madras High Court's view that it was more reasonable to interpret Article 226 (3) as only directory.
Is the two week limit under Article 226 (3) of the Constitution for deciding an application moved before teh High Court to vacate an mandatory or directory?
A large number of High Courts have, in the past, ruled that this two-week limitation period is mandatory and that the interim order under challenge would stand automatically vacated if an application challenging it is not decided within two weeks (from the date of serving the application upon the party in whose favour the interim order was granted).
However, on Friday a Division Bench of the Gauhati High Court sided with a contrary view adopted by the Madras High Court, finding that it was more reasonable to interpret Article 226 (3) as only directory (Rukuvoto Ringa, Superintendent and ors. v. Meyalemla, Sr. Supervisor and ors.).
The Bench of Justices N Kotiswar Singh and S Hukato Swu reasoned that, "If Clause (3) to Article 226 is held to be mandatory and the 2 weeks period is held inflexible, this inherent power of the High Court to secure the ends of justice and to prevent abuse of the process of the court would be nullified, which can be avoided if this Clause (3) is considered directory."
The Court, however, added that, "keeping in mind the purpose of the constitutional amendment, which is to prevent any undue prolonging of ex- parte interim order, such as has been dealt with in the Madras High Court case, as well as in the present case, because of waiver by the applicant."
The result will be that in such exceptional circumstances, the application will be treated as "a normal application and interim order may be vacated or continued in the usual manner, without invoking the provisions of Article 226(3) of the Constitution", the Court said.
In adopting this view, the Bench differed from an earlier view adopted by a coordinate Bench of the Gauhati High Court itself. Therefore, the matter has now been placed before the Chief Justice of the Gauhati High Court, so that it can be referred to larger Bench to decide.
In the case before the Court, the appellants/applicants claimed to have filed an application on 21 January, 2020 to challenge an ex parte interim order. By virtue of this claim, they contended that their application ought to have been decided on by 4 February, i.e. two weeks from 21 January.
However, a single judge order dismissing the application on 12 February recorded the date of the application as 31 January, in which case the two week period would only lapse on 14 February i.e. two days after the two-week period.
It may be noted that this date (January 31) was recorded by the Court in view of the submission by the opposing party (in whose favour the interim order lay) that they only received that application to vacate the interim order on 31 January.
While considering the appeal filed challenging the 12 February order dismissing the application to vacate the interim order, the Division Bench proceeded to examine whether the two-week limit for deciding such pleas under Article 226 (3) was mandatory in all cases.
The appeal had been filed on the contention that the single judge had exceeded to the time-limitation imposed under Article 226 (3). However the Division Bench took note that such an objection was not raised before the single judge.
This led to a question of whether the appellant had waived rights to have the application decided within two weeks if Article 226 (3) was indeed mandatory.
The High Court queried, "if Clause (3) of Article 226 is mandatory, can a party waive a mandatory provision?"
The High Court noted that there were divergent views on this issue.
Most High Courts, i.e. the Gujarat High Court, Rajasthan High Court, Calcutta High Court, Allahabad High Court, Kerala High Court, Manipur High Court etc. as well as the Gauhati High Court had held that Article 226 (3) is mandatory in nature.
In other words, these High Courts have held that "if the Court does not dispose of the application for vacating the interim order within two 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."
The following factors were considered to adopt this view:
The language of the Constitutional provision is plain and unambiguous. Hence, it would be impermissible to read down the provision. If plain meaning is assigned, the consequences would be inconvenient or unjust to a party.
This provision does not lead to 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 in view in construing the provision. It was incorporated to deal with a large number of cases where ex parte orders of stay or injunction are obtained and such ex parte orders continued to remain in operation to the prejudice of the aggrieved party for a long period of time as the stay matters do not receive consideration by the High Court within a reasonable period of time.
This provision has been incorporated to protect the interest of such aggrieved parties suffering under ex parte stay orders.
The object and purpose of the legislation would be defeated if it is held to be directory.
On the other hand, the Madras High Court in T Gnanasambanthan (Dr.) v. Board of Governors took a contrary view, finding that Article 226 (3) is directory and not always mandatory.
The Madras High Court held that even if the application could not be disposed of by the court within two weeks no party should be made to suffer because of reasons attributable to the Court. Hence, the Madras High Court had ruled that, in such a case, there would not be an automatic vacation of the interim order to the disadvantage of the person in whose favour the interim order had been passed.
"We find the view of the Madras High Court to be more reasonable", the Gauhati High Court Division Bench said on Friday, even though it acknowledged that its own High Court had adopted the contrarian view that Article 226 (3) of the Constitution is mandatory.
The Gauhati High Court reasoned that there are cases where an application is only decided by the High Court beyond the two-week time period for no fault of the litigant in whose favour the ex-parte interim order was passed.
Reasons for the same could be due to Registry issues, or an adjournment of the matter by the High Court with the acquiescence of the party who moved the application to vacate the interim order.
The Court also noted that "Even assuming that Article 226(3) is mandatory, it cannot be said that it cannot be waived. In this regard, one may refer to the decision in Dhirendra Nath Gorai v. Sudhir Chandra Ghosh, in which it has been held that even a mandatory provision can be waived by the party for whose benefit the provision has been made."
Further, it was pointed out that Article 226 (3) does not comprise any fundamental rights and that, therefore, it can be waived.
As such, it opined that if an application to set aside an ex parte interim order is adjourned beyond two weeks with the consent of the applicant, then such applicant waives his right to have the matter be decided within the two-week limit under Article 226 (3).
Moreover, the Bench also added that if Article 226 (3) is construed as a mandatory provision, it would affect the High Court's inherent, discretionary powers under Article 226 itself.
It added that, "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."
Therefore, it concluded that Article 226 (3) is ultimately on a directorary provision, and that the time-limit prescribed under it is not mandatory in exceptional cases.
In this instant case, the Court found that the applicant/appellant appeared to have acquiesced to viewing January 31 as the date of the application. Therefore, the Single Judge's February 12 ruling was within the two-week limit, the Bench held.
However, on noting that the interim order under challenge had not taken into consideration necessary factors, the Division Bench has directed the single judge to hear the parties again on the issue.
The broader question of whether Article 226 (3) of the Constitution is mandatory or not was referred for a larger Bench to decide.