Bombay High Court
Devsing Ramchandra Chavan vs The State Of Maharashtra And Ors on 18 April, 2022
Bench: G. S. Kulkarni
Digitally signed
PRASHANT by PRASHANT
VILAS RANE
VILAS Date:
RANE 2022.04.18
20:31:59 +0530
pvr/psv 1 wp 5483-21-final.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5483 OF 2021
Devsing Ramchandra Chavan ...Petitioner
vs.
The State of Maharashtra & Ors. ...Respondents
---
Mr. Abhijit P. Kulkarni, for the Petitioner.
Mr. A. A. Kumbhakoni, Advocate General, with Mr. P. P. Kakade,
Government Pleader and Mr. S. H. Kankal, AGP for the State.
Mr. Prashant Katneshwar, Advocate for Interveners.
----
CORAM :- G. S. KULKARNI, J.
DATE : APRIL 18, 2022.
JUDGMENT :-
1. This writ petition is filed challenging an order dated 23 June,
2021 passed by the Maharashtra Revenue Tribunal Bench at Pune (for
short "the Revenue Tribunal") by which the Revenue Tribunal has held
that an interim stay which was granted by it to an order passed by the
Sub-Divisional Officer confirming the orders passed by the Tehsildar as
impugned in the revision proceedings filed by the petitioner, stood
automatically vacated in view of the orders passed by the Supreme
Court in Asian Resurfacing of Road Agency Private Limited & Anr. vs.
Central Bureau of Investigation"1.
2. Thus, the issue which arises for consideration in this Writ Petition
is as to whether the learned Member of the Maharashtra Revenue
Tribunal, was correct in applying the orders and observations of the
1 (2018)16 SCC 299
pvr/psv 2 wp 5483-21-final.odt
Supreme Court in paragraphs 36 and 37 of its judgment in the case of
Asian Resurfacing Road Agency's case (supra), to hold that the interim
relief granted by the Revenue Tribunal in favour of the petitioner by an
order dated 10 December 2018 stood automatically revoked on a period
of more than six months having passed.
3. In brief, the relevant facts are:- The dispute between the parties
before the Revenue Tribunal, Pune, concerns a land situated at Village
Boroti, Taluka - Akkalkot, District - Solapur. There was a old previous
litigation between the parties, which according to the petitioner
culminated into final orders passed by the Revenue Tribunal, Pune on 17
March, 1971. The case of the petitioner is that however despite such
orders passed by the Revenue Tribunal in petitioner's favour, which
recognized the petitioner's rights on such land as also the consequent
revenue entries made in that regard, the Tahsildar, Akkalkot had passed
an order dated 6 December, 2016 whereby the petitioner's rights as
reflected in the revenue records in the 'other rights column' were sought
to be de-recognized. The petitioner challenged the said order passed by
the Tahsildar in an appeal before the Sub-Divisional Officer (SDO). The
SDO, by an order dated 28 November, 2017 confirmed the order dated 6
December, 2016 passed by the Tahsildar against which the petitioner
filed the revision in question, before the Revenue Tribunal (Revision
Application No.SH-II 05/2018) under Section 76 of the Maharashtra
Tenancy and Agricultural Lands Act 1948. On such revision application
pvr/psv 3 wp 5483-21-final.odt
filed by the petitioner, an interim order dated 10 December, 2018, came
to be passed by the tribunal, whereby the order passed by the SDO and
subject matter of the challenge in the proceedings of the revision, came
to be stayed by the Revenue Tribunal till further date, while issuing
notice to the respondents. The said order of the Revenue Tribunal needs
to be noted, which reads thus:-
" Order below 'Stay appln' in Revision No. SH/II/5/2018
Matter is taken on board at the request of Ld. Advocate for the
applicant. He has produced notice issued by Dy. Supdt. of Land
Records, Akkalkot, dated 21/11/2018 and submitted that if the stay to
the impugned order is not granted, multiplicity of litigation will be
created.
Read the judgment & order passed by both the tribunals below. Matter
is pending at the stage of 'hearing before admission'. Therefore, when
the matter is called on Board by showing urgency, I have no alternative
other than to pass the following interim order with time limit.
Order
The judgment & order passed by SDO, which is under challenge in the
revision application is hereby stayed till further date. However, this
date shall not be interpreted for any of the purposes in respect of the
action proposed under the notice dated 21/11/2018.
Issue notice to the respondents as to why the stay granted should not
be made absolute till the decision of the stage of revision application
i.e. 'hearing before admission'.
Matter is fixed on 20/12/2018.
Petitioner is directed to serve fresh notices by E-Mail to all the
respondents and also issue fresh notices on the given addresses at the
cost and risk of the applicant.
Inform both the tribunals below."
4. It is thus clear that the operation of the judgment and order dated
28 November, 2017 passed by the Sub-Divisional Officer confirming the
orders of the Tehsildar was stayed by such interim order passed by the
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Revenue Tribunal. But for such stay it would have resulted in deletion
of the petitioner's name from the record of rights in respect of Survey
no. 115 as a tenant in implementation of the orders dated 6 December,
2016 of the trial authority, namely that of the Tahsildar.
5. The said interim order was extended by the Revenue Tribunal
from time to time, however, by the impugned order dated 23 June, 2021
passed on the petitioner's extension application, the Revenue Tribunal,
referring to the decision of the Supreme Court in Asian Resurfacing of
Road Agency's case (supra) as also referring to a Government Circular
dated 6 May 2021, observed that the interim order dated 10 December,
2018 had come to an end. Notably the private respondents were not
represented when the impugned order was passed. The impugned order
needs to be noted which reads thus:-
" Order
Read application dated 23.06.2021. In this case Tribunal has
made order of stay on 10.12.2018 and revision applicants got extended
that order from time to time till today. Now in view of the observations
of Hon'ble Supreme Court made in Misc.application No.1577/2020 in
Criminal Appeal No.1375-76 of 2013 on 15.10.20 and directions given
by State Govt. on 6th May 2021, stay order has come to an end. Hence,
this application is disposed off as filed. No order as to costs,
Communicate this order to Lower Courts."
(emphasis supplied)
6. It is to be noticed that the Revenue Tribunal referred to the
Circular issued by the Government of Maharashtra in its Revenue and
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Forests Department being Circular No.Miscellaneous-2021/M.No.15/L-
1A, which is purporting to give effect to the directions of the Supreme
Court in Asian Resurfacing of Road Agency's case by applying such
directions to the quasi judicial matters under the land laws to be tried
before the Revenue Authorities. The circular dated 6 May 2021 reads
thus:
"(Translation of a copy of Circular typewritten in Marathi.)
In view of the orders of the Hon'ble Supreme Court,
guidelines regarding stay-order in respect of Quasi-
Judicial matters under Land related Acts, to be tried
before Revenue Officers and Authorities....
Government of Maharashtra
Revenue and Forests Department
Government Circular Number : Miscellaneous-2021/M.No.15/L-1A
Madam Cama Road, Hutatma Rajguru Chowk,
Mantralaya, Mumbai-400 032.
Date - 06th May, 2021
Reference :- Government Circular Number REV - 1093/354/M. No. 4/
'L'-2,
Dated- 24th August, 1993.
Government Circular :-
The Hon'ble Supreme Court, by the order dt. 15 th October, 2020 in
the matter of MISCELLANEOUS APPLICATION No. 1577 CF2020 IN
CRIMINAL APPEAL NOS 1375-76 of 2013, has directed that, "The period
of interim stay granted by any Court in Civil/Criminal Case, shall remain
in force only upto 6 months. If the Hon'ble Court has extended such stay
beyond 6 months on the basis of substantial proofs, only then the stay
granted shall continue, otherwise the said stay shall lapse automatically
after the expiry of 6 months period and that, these orders shall be
applicable to all the stay orders granted by any court in the entire
country".
As per the provisions of the Maharashtra Land Revenue Code,
1966 or as per various land related Acts, hearings in Quasi-Judicial
matters are held before the Hon'ble Minister (Revenue), Hon'ble Minister
of State (Revenue), Principal Secretary (A. and R.), Regional Revenue
Officers and Authorities and the Maharashtra Revenue Tribunal, from
time to time.
Considering these points, the issue was under consideration of
the Government to issue guidelines to the Revenue Officers and
Authorities regarding the Stay orders in Quasi-Judicial matters under the
land related Acts, tried before the Revenue Officers and Authorities.
In view of the order passed by the Hon'ble Supreme Court on the
date 15th October, 2020 in MISCELLANEOUS APPLICATION NO. 1577 CF
2020 IN CRIMINAL APPEAL NOS. 1375-76 of 2013 (copy of the order is
pvr/psv 6 wp 5483-21-final.odt
enclosed herewith), the following guidelines are hereby issued to all the
concerned Revenue Officers and Authorities, in respect of Quasi-Judicial/
Judicial matters tried before the Hon'ble Minister (Revenue), Hon'ble
Minister of State (Revenue), Principal Secretary (A & R) Regional
Revenue Officer and Authorities and Maharashtra Revenue Tribunal.
(1) In all cases of Quasi-Judicial/ Judicial matters tried before the
Hon'ble Minister (Revenue), Hon'ble Minister of State (Revenue),
Principal Secretary (A & R), Regional Revenue Officers and Authorities
and the Maharashtra Revenue Tribunal, in which stay has been granted
for the period of more than 6 months, all the concerned Officers should
take an appropriate action, as per the Order passed by the Hon'ble
Supreme Court on the date 15th October, 2020 in the Matter viz.
MISCELLANEOUS APPLICATION NO. 1577 CF 2020 in CRIMINAL APPEAL
NOS. 1375-76 of 2013. Moreover, the precaution should also be taken to
see that contempt of order of the Hon'ble Supreme Court is not committed
in any circumstances.
(2) The time limit of the interim stay granted by any of the above
mentioned Revenue Court and Maharashtra Revenue Tribunal, shall be in
force upto 6 months only. If the Revenue Court has extended such stay
after 6 months, in exceptional circumstances, on the basis of reasonable
grounds, then only, the stay granted earlier shall be continued.
Otherwise, after expiry of the period of 6 months, said stay shall lapse
automatically. Similarly, this order shall be applicable to all the stay
orders granted by any of the Revenue or other Courts in the entire State.
(3) All the Divisional Commissioners, Collectors and Regional Revenue
Authorities & Officers should implement these directions immediately.
This Government Circular has been made available on website
www.maharashtra.gov.in of the Government of Maharashtra and computer
code thereof is 202105061613027519. This circular is being issued by
authenticating the same under digital signature.
Digitally Signed by
RAMESH Ramesh Shivaji Chavan
SHIVAJI CHAVAN (Ramesh Chavan)
Joint Secretary,
Revenue and Forest Department.
(emphasis supplied)"
7. The case of the petitioner is that the tribunal has erroneously
applied the decision in Asian Resurfacing Road Agency's case (supra) to
the proceedings before the Revenue Tribunal to hold that the interim
order automatically stood vacated on a period of six months having
lapsed after the interim order was passed by the Revenue Tribunal. The
petitioner has contended that the decision in Asian Resurfacing of Road
Agency's case (supra) was applicable in a completely different context,
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as the directions of the Supreme Court in paragraph 36 of the said
decision would apply only to proceedings which have stayed the civil
and criminal trials and not to proceedings of a revision before the
tribunal. It is also contended that even the Government Circular dated 6
May, 2021 referred to in the impugned order has totally misinterpreted
the directions of the Supreme Court to give an impression that such
direction would be applicable even to the proceedings before the quasi
judicial authorities and the tribunal.
8. When this petition was heard by this Court on 29 September,
2021, while granting ad-interim reliefs on the petition, it was thought
appropriate that as an issue of law on the correctness of the impugned
order passed by the Revenue Tribunal, in the context of the orders and
observations of the Supreme Court was raised, the learned Advocate
General be heard on such issue, so that even the nature of the directions
as contained in the Government Resolution dated 6 May, 2021 can be
explained by the State Government. This Court hence passed the
following order:-
"1. Heard Mr.Kulkarni, learned counsel for the petitioner and
Mr.Kankal, learned AGP for the State.
2. Challenge in this petition is to an order dated 23 June, 2021
passed by the In-charge, Designated Member, Maharashtra Revenue
Tribunal Bench at Pune, (for short 'the Tribunal') who has held that the
interim order dated 10 December 2018 passed on petitioner's stay
application has come to an end by virtue of the observations as made by
the Supreme Court in the case of Asian Resurfacing of Road Agency
Private Limited and Another Versus Central Bureau of Investigation
reported in (2018) 16 Supreme Court Cases 299 and more particularly
paragraph 36 which reads thus:-
pvr/psv 8 wp 5483-21-final.odt
"36. In view of the above, situation of proceedings
remaining pending for long on account of stay needs to be
remedied. Remedy is required not only for corruption cases
but for all civil and criminal cases where on account of stay,
civil and criminal proceedings are held up. At times,
proceedings are adjourned sine die on account of stay. Even
after stay is vacated, intimation is not received and
proceedings are not taken up. In an attempt to remedy this
situation, we consider it appropriate to direct that in all
pending cases where stay against proceedings of a civil or
criminal trial is operating, the same will come to an end on
expiry of six months from today unless in an exceptional case
by a speaking order such stay is extended. In cases where
stay is granted in future, the same will end on expiry of six
months from the date of such order unless similar extension
is granted by a speaking order. The speaking order must
show that the case was of such exceptional nature that
continuing the stay was more important than having the trial
finalised. The trial Court where order of stay of civil or
criminal proceedings is produced, may fix a date not beyond
six months of the order of stay so that on expiry of period of
stay, proceedings can commence unless order of extension of
stay is produced."
3. Mr.Kulkarni, learned counsel for the petitioner submits that
earlier by a reasoned order dated 10 December, 2018, the Tribunal had
granted a stay in favour of the petitioner, which is now declared to be
vacated by the impugned order. It is his submission that if the stay as
earlier granted by the Tribunal is not continued, it would cause serious
prejudice to the petitioner.
4. Mr.Kulkarni has made submission that it would fall for
consideration of this Court as to whether it was appropriate for the the
Maharashtra Revenue Tribunal to apply the aforesaid decision of the
Supreme Court and hold that the stay granted in favour of the
petitioner stood vacated by virtue of such directions of the Supreme
Court. Mr.Kulkarni would also submit that another issue which would
rise for consideration, as to whether the Government Resolution dated
6 May, 2021 issued by the State Government which according to him
implements the orders passed by the Supreme Court is at all in
consonance with the order passed by the Supreme Court.
5. In the aforesaid circumstances, in my opinion, interest of justice
would require that the orders dated 10 December, 2018 passed by the
Tribunal on the stay application as filed by the petitioner are directed to
operate until further orders. Accordingly, the impugned order dated 23
June, 2021 shall remain stayed and the order dated 10 December, 2018
passed by the Tribunal shall continue to operate until further orders
ordered accordingly.
6. In my opinion a larger issue arises for consideration in the
present proceedings in regard to the applicability of the directions of
the Supreme Court on the expiry of the stay in civil proceedings as
directed in paragraph 36 of the above decision of the Supreme Court,
as rightly pointed out by Mr. Kulkarni. In my opinion, it would be
appropriate that the learned Advocate General appears in the matter
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who can also be heard on the nature of the directions as contained in
Government Resolution dated 6 May, 2021.
7. Accordingly, the proceedings are adjourned to be taken up at
02.30 p.m. on 01 October, 2021."
(emphasis supplied)
9. On the above backdrop, I have heard Mr. Kulkarni, learned
counsel for the petitioner, Mr. Kumbhakoni, learned Advocate General
along with Mr. Kakade, learned Government Pleader and Mr. Kankal,
learned Assistant Government Pleader for the State and Mr. Katneshwar,
learned counsel for the interveners, on the issues of law as noted above.
10. To be more specific, the issue as urged by the petitioner is as to
whether the observations of the Supreme Court in paragraph 36 of its
decision in "Asian Resurfacing of Road Agency' case, can be construed to
mean that in cases wherein interim orders in the nature of stay or
injunction are passed and which have continued to remain in operation
for more than six months, would stand automatically vacated after a
period of six months of such orders being passed.
11. It was urged on behalf of the petitioner and the interveners that
the interpretation of the directions of the Supreme Court as made in the
impugned order and such interpretation, being also found in the
consequent Government Resolution dated 6 May 2021 issued by the
State Government, very serious consequences are brought about. It is
submitted that it is not correct to construe the observations of the
Supreme Court in paragraphs 36 and 37 of the said judgment to mean
that such observations are intended to mean automatic vacating of the
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interim reliefs which are granted in favour of the parties in the civil
proceedings. It is urged that the State Government has also incorrectly
interpreted such directions when it issued the Government Circular
dated 6 May 2021, applying such directions to the proceedings before
the Revenue Officers being quasi judicial authorities and the Tribunals
constituted under the land laws. In such circumstances, the Court being
of the prima facie opinion, that there was much substance in the
contentions as urged on behalf of the petitioner and that certainly
serious consequences were brought about if the observations of the
Supreme Court in paragraph 36 of the said judgment are to mean
automatic vacating of the interim orders passed by the Tribunal and
Courts in civil proceedings as noted above, the Court has requested Mr.
Kumbhakoni, the learned Advocate General, to assist the Court.
12. Mr. Kumbhakoni, at the outset, has drawn the Court's attention to
the various paragraphs of the decision of the Supreme Court in Asian
Resurfacing Road Agency's case (supra) to submit that in the said case in
pursuance of the orders passed by a Bench of two Hon'ble Judges dated
9 September, 2013, the proceedings were put up before a three Judge
Bench. The proceedings before the Supreme Court had arisen from the
judgment and order passed by the Delhi High Court in "Asian
Resurfacing of Road Agency Private Limited & Anr. vs. Central Bureau of
Investigation"2. The facts in relation to which, the controversy had
arisen before the Supreme Court are noted in paragraphs 3 and 4 of the
2 2011 SCC OnLine Del 5688.
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said decision of the Supreme Court. The relevant facts being that an FIR
dated 7 March, 2001 was filed under the Delhi Special Police
Establishment Act under Section 120-B read with sections 420, 467,
468, 471 and 477-A of the IPC and Section 13(2) read with Section
13(1)(d) of the Prevention of Corruption Act, 1988 (for short, "the PC
Act") filed at the instance of Municipal Corporation of Delhi (MCD)
against the appellants and certain officers of the MCD, allegedly causing
wrongful loss to MCD by using fake invoices of Oil Companies relating
to transportation of bitumen for use in "dense carpeting works" of roads
in Delhi during the years 1997 and 1998. After the investigation was
complete, a charge-sheet came to be filed against the appellants and
some employees of the MCD, by the respondent CBI, before the learned
Special Judge, CBI, New Delhi on 28 November, 2002. Before the
learned Special Judge, the appellants had filed an application for a
discharge. On 1 February, 2007, the learned Special Judge, after
considering the materials before the Court, directed framing of charges
against the appellants, observing that a prima facie case was made out
against the appellants and the other accused of having committed the
offences in question. Such order of framing of charges was challenged
by the appellants before the Delhi High Court in a criminal revision
application no. 321 of 2007. The revision petition was converted into a
Writ Petition (Criminal). In the course of adjudication of the said
proceedings, the learned Single Judge referred the following question of
law for consideration by the Division Bench:-
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"27. Whether an order on charge framed by a Special Judge under
the provisions of the Prevention of Corruption Act, being an
interlocutory order, and when no revision against the order or a
petition under Section 482 Cr.P.C. lies, whether the same can be
assailed under Articles 226/227 of the Constitution of India, whether or
not the offences committed include the offences under the Penal Code
apart from offences under the Prevention of Corruption Act ?"
13. In such referral order, the conflicting views taken in earlier two
Single Bench decisions of the High Court in cases of Dharambir Khattar
v. CBI3 and R.C. Sabharwal v. CBI4, were noted. The Division Bench
rendered a decision on such reference, however while doing so, re-
framed the questions as noted by the Supreme Court in paragraph 11 of
its judgment, which are (i) Whether an order framing charge under the
1988 Act would be treated as an interlocutory order thereby barring the
exercise of revisional power of the Court ? (ii) Whether the language
employed in Section 19 of the 1988 Act which bars the revision would
also bar the exercise of power under Section 482 Cr.P.C. for all purposes?
(iii) Whether the order framing charge can be assailed under Article 227
of the Constitution of India?"
14. The Division Bench while answering these questions held that the
order framing charge under the P.C. Act was an interlocutory order. It
held that as Section 19(3)(c) clearly bars revision against an
interlocutory order and framing of charge being an interlocutory order a
revision will not be maintainable. It further held that the a petition
under Section 482 of the Cr.P.C. and a writ petition preferred under
3 2009 SCC OnLine Del 1292
4 2010 SCC OnLine Del 3
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Article 227 of the Constitution of India were maintainable. The Division
Bench also held that even if a petition under Section 482 of the Cr.P.C. or
a writ petition under Article 227 of the Constitution of India is
entertained by the High Court, under no circumstances, an order of stay
should be passed regard being had to the prohibition contained in
Section 19(3)(c) of the 1988 Act. It was held that the exercise of power
either under Section 482 of the Cr.P.C. or under Article 227 of the
Constitution of India should be sparingly exercised and in exceptional
circumstances be exercised keeping in view the law as enunciated by the
Supreme Court in Siya Ram Singh5, Vishesh Kumar6, Khalil Ahmed
Bashir Ahmed7, Kamal Nath8, Ranjeet Singh9's case. Thus the Division
Bench held that order framing charge was an interlocutory order and no
revision petition under Section 401 read with Section 397(2) of the Cr.
P.C. would lie to the High Court against such order. In paragraph 18 of
the decision, the Supreme Court has noted the issue which fell for its
consideration which reads thus:-
"18. We have given due considerations to the rival submissions and
perused the decisions of this Court. Though the question referred
relates to the issue whether order framing charges is an interlocutory
order, we have considered further question as to the approach to be
adopted by the High Court in dealing with the challenge to the order
framing charge. As already noted in para 11, the impugned order also
considered the said question. The learned counsel for the parties have
also addressed the Court on this question."
15. The Supreme Court, taking a review of law on the issue as also
5 Chandrasekhar Singh v. Siya Ram Singh, (1979) 3 SCC 118 : 1979 SCC (Cri) 666
6 Vishesh Kumar v. Shanti Prasad, (1980) 2 SCC 378
7 Khalil Ahmed Bashir Ahmed v. Tufelhussein Samasbhai Sarangpurwala, (1988) 1 SCC 155
8 M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213
9 Ranjeet Singh v. Ravi Prakash, (2004) 3 SCC 682
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considering the principles of law as laid down in the decision of the
seven Judges Bench of the Supreme Court in L. Chandra Kumar10 in
paragraphs 27 and 28 held that the order framing charge may not be
held to be purely an interlocutory order and in a given situation can be
interfered under Section 397(2) or even under Section 482 of the Cr. P.C.
or under Article 227 of the Constitution, being a constitutional
provision. However, the Supreme Court held that the power of the High
Court to interfere with an order framing charge and to grant stay is to be
exercised only in an exceptional situation. The observations in
paragraphs 27 and 28 are required to be noted:
27. Thus, even though in dealing with different situations, seemingly
conflicting observations may have been made while holding that the
order framing charge was interlocutory order and was not liable to be
interfered with under Section 397(2) or even under Section 482 Cr.P.C.,
the principle laid down in Madhu Limaye (supra) still holds the field.
Order framing charge may not be held to be purely an interlocutory
order and can in a given situation be interfered with under Section
397(2) Cr.P.C. or 482 Cr.P.C. or Article 227 of the Constitution which is
a constitutional provision but the power of the High Court to interfere
with an order framing charge and to grant stay is to be exercised only
in an exceptional situation.
28. We have thus no hesitation in concluding that the High Court
has jurisdiction in appropriate case to consider the challenge against
an order framing charge and also to grant stay but how such power
is to be exercised and when stay ought to be granted needs to be
considered further."
16. As seen from the observations as made in paragraph 28, the
Supreme Court although holding that the High Court has jurisdiction in
an appropriate case to consider the challenge against an order framing
charge, and also to a grant a stay to the proceedings pending before the
trial Court, in the further part of its judgment also examined the issue as
10 L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 : 1997 SCC (L&S) 577
pvr/psv 15 wp 5483-21-final.odt
to how such power is to be exercised and as to when and in what
circumstances a stay ought to be granted. It is in this context, the
deleterious effect on the administration of criminal justice of a delay in
criminal trials was immediately discussed in paragraphs 30 and 31 of
the judgment. It was observed that delay in trials affects the faith in the
Rule of Law and efficacy of the legal system. It was observed that it also
affects social welfare and development. The Supreme Court further
observed that even in civil or tax cases it has been held that power to
grant stay has to be exercised with restraint and that mere prima facie
case is not enough. The entire discussion in paragraphs 30 and 31 of
the judgment is on a party seeking "stay on the trial" as pointed out by
Mr. Kumbhakoni. It would be imperative to note the observations in
paragraph 30 to 32 which read thus:-
"30. It is well accepted that delay in a criminal trial, particularly in
the PC Act cases, has deleterious effect on the administration of justice
in which the society has a vital interest. Delay in trials affects the faith
in Rule of Law and efficacy of the legal system. It affects social welfare
and development. Even in civil or tax cases it has been laid down that
power to grant stay has to be exercised with restraint. Mere prima facie
case is not enough. Party seeking stay must be put to terms and stay
should not be incentive to delay. The order granting stay must show
application of mind. The power to grant stay is coupled with
accountability.
31. Wherever stay is granted, a speaking order must be passed
showing that the case was of exceptional nature and delay on account
of stay will not prejudice the interest of speedy trial in a corruption
case. Once stay is granted, proceedings should not be adjourned, and
concluded within two-three months.
32. The wisdom of the legislature and the object of final and
expeditious disposal of a criminal proceeding cannot be ignored. In
exercise of its power the High Court is to balance the freedom of an
individual on the one hand and security of the society on the other.
Only in case of patent illegality or want of jurisdiction the High Court
may exercise its jurisdiction. The acknowledged experience is that
where challenge to an order framing charge is entertained, the matter
pvr/psv 16 wp 5483-21-final.odt
remains pending for long time which defeats the interest of justice."
(emphasis supplied)
17. Further in paragraph 34 of the decision, the Court observed that
the legislative policy of expeditious final disposal of the trial is
hampered when at the stage of charge, the High Court adopts the
approach of weighing probabilities and reappreciating the material,
which was certainly a time-consuming exercise. It was thus observed
that even if a challenge to an order framing charge is entertained, the
decision on such petition should not be delayed. It was observed that
although no mandatory time limit can be fixed, normally it should not
exceed two-three months, and if stay is granted, it 'should not' normally
be unconditional or of indefinite duration. The Court ultimately
observed that to give effect to the legislative policy and the mandate of
Article 21 for speedy justice in criminal cases, if stay is granted, the
proceedings should be taken on a day-to-day basis and concluded within
two-three months. The Court then observed that when the matter
remains pending for longer period, the order of stay would stand
vacated on expiry of six months, unless extension is granted by a
speaking order showing extraordinary situation where continuing stay
was to be preferred to the final disposal of trial by the trial Court. It was
observed that the timeline was being fixed in view of the fact that such
trials are expected to be concluded normally in one to two years. It is in
this context, in paragraph 35 the Supreme Court discussed its decision
pvr/psv 17 wp 5483-21-final.odt
in Imtiyaz Ahmad v. State of U.P. 11. The observations of the Supreme
Court in paragraph 34 reads thus:-
"34. If contrary to the above law, at the stage of charge, the High
Court adopts the approach of weighing probabilities and reappreciating
the material, it may be certainly a time consuming exercise. The
legislative policy of expeditious final disposal of the trial is thus,
hampered. Thus, even while reiterating the view that there is no bar to
jurisdiction of the High Court to consider a challenge against an order
of framing charge in exceptional situation for correcting a patent error
of lack of jurisdiction, exercise of such jurisdiction has to be limited to
rarest of rare cases. Even if a challenge to order framing charge is
entertained, decision of such a petition should not be delayed. Though
no mandatory time-limit can be fixed, normally it should not exceed
two-three months. If stay is granted, it should not normally be
unconditional or of indefinite duration. Appropriate conditions may be
imposed so that the party in whose favour stay is granted is
accountable if court finally finds no merit in the matter and the other
side suffers loss and injustice. To give effect to the legislative policy and
the mandate of Article 21 for speedy justice in criminal cases, if stay is
granted, matter should be taken on day-to-day basis and concluded
within two-three months. Where the matter remains pending for longer
period, the order of stay will stand vacated on expiry of six months,
unless extension is granted by a speaking order showing extraordinary
situation where continuing stay was to be preferred to the final disposal
of trial by the trial Court. This timeline is being fixed in view of the fact
that such trials are expected to be concluded normally in one to two
years."
18. It is in continuation of such observations as made in paragraph
34, the Supreme Court in paragraph 36 of the said decision and which
has become subject matter of the discussion in the present proceedings,
the Supreme Court also observed in regard to stay on civil and criminal
proceedings. Paragraphs 36 to 38 are required to be noted which read
thus:-
"36. In view of above, situation of proceedings remaining pending for
long on account of stay needs to be remedied. Remedy is required not
only for corruption cases but for all civil and criminal cases where on
account of stay, civil and criminal proceedings are held up. At times,
proceedings are adjourned sine die on account of stay. Even after stay is
vacated, intimation is not received and proceedings are not taken up. In
an attempt to remedy this, situation, we consider it appropriate to
direct that in all pending cases where stay against proceedings of a civil
11 (2012) 2 SCC 688 : (2012) 1 SCC (Cri) 986
pvr/psv 18 wp 5483-21-final.odt
or criminal trial is operating, the same will come to an end on expiry of
six months from today unless in an exceptional case by a speaking
order such stay is extended. In cases where stay is granted in future,
the same will end on expiry of six months from the date of such order
unless similar extension is granted by a speaking order. The speaking
order must show that the case was of such exceptional nature that
continuing the stay was more important than having the trial finalized.
The trial Court where order of stay of civil or criminal proceedings is
produced, may fix a date not beyond six months of the order of stay so
that on expiry of period of stay, proceedings can commence unless
order of extension of stay is produced.
37. Thus, we declare the law to be that order framing charge is not
purely an interlocutory order nor a final order. Jurisdiction of the High
Court is not barred irrespective of the label of a petition, be it under
Sections 397 or 482 Cr.P.C. or Article 227 of the Constitution. However,
the said jurisdiction is to be exercised consistent with the legislative
policy to ensure expeditious disposal of a trial without the same being
in any manner hampered. Thus considered, the challenge to an order
of charge should be entertained in a rarest of rare case only to correct a
patent error of jurisdiction and not to re-appreciate the matter. Even
where such challenge is entertained and stay is granted, the matter
must be decided on day-to-day basis so that stay does not operate for
an unduly long period. Though no mandatory time limit may be fixed,
the decision may not exceed two-three months normally. If it remains
pending longer, duration of stay should not exceed six months, unless
extension is granted by a specific speaking order, as already indicated.
Mandate of speedy justice applies to the PC Act cases as well as other
cases where at trial stage proceedings are stayed by the higher court i.e.
the High Court or a court below the High Court, as the case may be. In
all pending matters before the High Courts or other courts relating to
PC Act or all other civil or criminal cases, where stay of proceedings in
a pending trial is operating, stay will automatically lapse after six
months from today unless extended by a speaking order on above
parameters. Same course may also be adopted by civil and criminal
appellate/revisional courts under the jurisdiction of the High Courts.
The trial courts may, on expiry of above period, resume the proceedings
without waiting for any other intimation unless express order extending
stay is produced.
38. The High Courts may also issue instructions to this effect and
monitor the same so that civil or criminal proceedings do not remain
pending for unduly period at the trial stage."
(emphasis supplied)
19. Mr. Kumbhakoni, learned Advocate General, has submitted that
necessarily the observations of the Supreme Court in paragraph 36 on a
plain reading relate to "stay of a trial". It is submitted by Mr.
Kumbhakoni that in order to remedy a situation of indefinite stay on
pvr/psv 19 wp 5483-21-final.odt
trials, the Supreme Court has issued such directions that in all pending
cases where stay against proceedings of a "civil or criminal trial" is
operating, the same will come to an end on expiry of six months from
the date of the said judgment unless in an exceptional case by a
speaking order such stay is extended.
20. It is also Mr. Kumbhakoni's submission that the observations in
regard to the reference to civil proceedings are required to be considered
as an obiter and are not the ratio of the decision as according to him, the
ratio of the decision would be as to what was held by the Supreme Court
in relation to an order framing charge whether was an interlocutory
order, not liable to be interfered with under Section 397(2) or even
under Section 482 of the Cr. P.C. and in such context the Supreme Court
holding that the principle which was laid down in Madhu Limaye's case
(supra) was holding the field namely that an order framing charge may
not be held to be purely an interlocutory order and in a given situation
can be interfered with under Section 397(2) Cr.P.C. or 482 Cr.P.C. or
Article 227 of the Constitution. As also further observations that the
power of the High Court to interfere with an order framing charge and
to grant stay was to be exercised only in an exceptional situation.
21. It is Mr. Kumbhakoni's submission that in paragraph 36 of the
decision when the Supreme Court observes that "in all pending cases
pvr/psv 20 wp 5483-21-final.odt
where stay against proceedings of a "civil or criminal trial" is operating,
and the same will come to an end on expiry of six months from the date
of the said judgment unless in an exceptional case by a speaking order
such stay was extended", would certainly not mean that these
observations were applicable to "interlocutory orders" passed by the
Civil Court or tribunal in civil proceedings which are in the nature of
stay of any order impugned before the Civil Court or the appellate Court
or the revisional Court or orders which are inter alia in the nature of an
injunction or any other interlocutory relief as granted under the
provisions of the C.P.C. or the Specific Relief Act. It is submitted that the
said orders/observations of the Supreme Court also cannot be applied to
the interlocutory orders passed by Courts which do not have an effect to
stay the criminal trial. It is further submitted that the said orders of the
Supreme Court are also not applicable to the proceedings before the
tribunals. It is thus submitted that the observations as made in
paragraph 36, would be applicable only to such orders which stay the
civil or criminal trials.
22. In supporting his submission that the duty of the Court would be
to separate the ratio of the decision from the obiter, Mr. Kumbhakoni has
placed reliance on the decisions of the Division Bench of this Court in
Mohandas Issardas And Ors. vs A.N. Sattanathan And Ors. 12, Union of
India & Ors. vs. Dhanwanti Devi & Ors. 13 and Ashwani Kumar Singh vs
U.P. Public Service Commission & Ors.14.
12 ILR 1955 Bom 319
13 (1996) 6 SCC 44
14 2003 (11) SCC 584
pvr/psv 21 wp 5483-21-final.odt
23. About 67 years back (1955) in the decision of the Division bench
of this Court in Mohandas Issardas (supra) Chagla CJ, speaking for the
Division Bench, traced the history of the law of precedents from the
classic English jurisprudence and the distinction of the applicability of
such principles in the Indian context, as the Constitution would
mandate. The Court succinctly explained the doctrine of Ratio
Decidendi and Obiter Dicta. It was observed that the opinion of the
Court on the question which was necessary for the determination of the
case would be undoubtedly be the 'ratio decidendi'; and the opinion of
the Court on the question which was not necessary for the decision of
the case is an 'obiter dictum'. It would be imperative to note the
following 'enduring' observations on the principle of " obiter dictum"
which are relevant in the context of the issue before the Court:-
"Before we turn to the Judgment of the Supreme Court, it is necessary
to have our minds clear as to what is an 'obiter dictum' which has a
binding effect upon a Court. It Is rather significant to bear in mind that
In England an 'obiter dictum' has no binding effect either upon a
coordinate Court or upon a subordinate Court. An 'obiter dictum',
especially of an eminent judicial tribunal like the Privy Council or the
House of Lords, would undoubtedly be entitled to the highest respect.
But a Judge in England would not feel that he would be bound by an
opinion expressed by the higher tribunal. In India, we have -- perhaps
advisedly -- made a departure from the principle operating in England
with regard to 'obiter dicta'. At a time when the Judicial Committee of
the Privy Council was the highest judicial tribunal in the Empire, as it
then was, the Courts in India felt that it would be in the interests of
judicial uniformity and judicial discipline if not only they accepted the
decisions of the Privy Council, Which indeed were binding upon them,
but also accepted the 'obiter dicta' of the Privy Council as binding upon
them.
The feeling was that, if the Privy Council expressed an opinion on a
point which, although not necessary for decision, clearly indicated the
opinion formed by the Privy Council on a question of law, then the
Courts in India should accept that as an authoritative pronouncement
on the particular aspect of the law and treat that pronouncement as
binding, The Supreme Court has now taken the place of the Privy
Council and we would like to say unhesitatingly that we must show the
pvr/psv 22 wp 5483-21-final.odt
same respect for the 'obiter dicta' of the Supreme Court that we did for
those of the Privy Council. The Supreme Court, is the highest Judicial
tribunal in India to-day and it is as much necessary in the interests of
judicial uniformity and judicial discipline that all the High Courts must
accept as binding the 'obiter dicta' of the Supreme Court in the same
spirit as the High Courts accepted the 'obiter dicta' of the Privy
Council."
(emphasis supplied)
24. In the above context, Mr.Kumbhakoni has drawn Court's attention
to the following dictum of law as laid down in the case Dhanwanti Devi
& Ors. (supra) wherein it was propounded that every decision contains
three basic postulates as explained in paragraph 9 of the said decision,
which were necessary to understand the binding force of a decision. In
paragraphs (9) and (10) the Supreme Court observed as under:-
"9. Before adverting to and considering whither solatium and
interest would be payable under the Act, at the outset, we will dispose
of the objection raised by Shri Vaidyanathan that Hari Kishan Khosla's
case is not a binding precedent nor does it operate as ratio decidendi to
be followed as a precedent and per se per incuriam. It is not everything
said by a Judge who giving judgment that constitutes a precedent. The
only thing in a Judge's decision binding a party is the principle upon
which the case is decided and for this reason it is important to analyse
a decision and isolate from it the ratio decidendi. According to the well
settled theory of precedents, every decision contain three basic
postulates - [i] findings of material facts, is the inference which the
Judge draws from the direct, or perceptible facts; [ii] statements of the
principles of law applicable to the legal problems disclosed by the facts;
and [iii] judgment based on the combined effect of the above. A
decision is only an authority for what it actually decides. What is of the
essence in decision is its ratio and not every observation found therein
not what logically follows from the various observations made in the
judgment. Every judgment must be read as applicable to the particular
facts proved, since the generality of the expressions which may be
found there is not intended to be exposition of the whole law, but
governed and qualified by the particular facts of the case in which such
expressions are to be found. It would, therefore, be not profitable to
extract a sentence here and there from the judgment and to build upon
it because the essence of the decision is its ratio and not every
observation found therein. The enunciation of the reason or principle
on which a question before a court has been decided is alone binding
between the parties to it, but it, is the abstract ratio decidendi,
ascertained on a consideration of the judgment in relation to the
subject matter of the decision, which alone has the force of law and
which, when it is clear what it was, is binding. It is only the principle
laid down in the judgment that is binding law under Article 141 of the
pvr/psv 23 wp 5483-21-final.odt
Constitution. A deliberate judicial decision arrived at after hearing an
argument on a question which arises in the case or is put in issue may
constitute a precedent, no matter for what reason, and the precedent by
long recognition may mature into rule of stare decisis. It is the rule
deductible from the application of law to the facts and circumstances of
the case which constitutes its ratio decidendi.
10. Therefore, in order to understand and appreciate the binding
force of a decision is always necessary to see what were the facts in the
case in which the decision was given and what was the point which had
to be decided. No judgment can be read as if it is a statute. A word or a
clause or a sentence in the judgment cannot be regarded as a full
exposition of law. Law cannot afford to be static and therefore, Judges
are to employ an intelligent in the use of precedents. It would,
therefore, be necessary to see whether Hari Kishan Khosla's case would
form a binding precedent. Therein, admittedly the question that had
arisen and was decided by the Bench of three Judges was whether
solatium and interest are payable to an owner whose land was acquired
under the provisions of the Central Act? On consideration of the facts,
the relevant provisions in the Central Act and the previous precedents
bearing on the topic the Court had held that solatium and interest are
not a part of compensation. It is a facet of the principle in the statute.
The Central Act omitted to provide for payment of solatium and
interest since preceding the acquisition the property was under was
under requisition during which period compensation was under
requisition during which period compensation was paid to the owner.
The position obtained and enjoyed by the Government during the
period of requisition continued after acquisition. The same principle
was applied without further elaboration on entitlement to payment of
interest of an owner. It is true that the decisions relied on by Shri
Vaidyanathan on the principle of payment of interest as part of
compensation in respect of land acquired were brought to the attention
of this Court for discussion. What would be considered a little later.
Suffice it to say for the present that the finding that solatium and
interest are not payable for the lands acquired under the Central Act as
part of compensation is a binding precedent. Obviously, therefore, this
Court followed the ratio therein in District Judge, Udhampur case
[supra]. The contention, therefore, that Hari Kishan Khosla's case
cannot be treated as a binding precedent since therein there is no ratio
but a conclusion without discussion, is not tenable and devoid of force.
In that view, it is not necessary to discuss in extenso the effect of the
decisions cited by Shri Vaidyanathan. Equally, the contention of Shri
Vaidyanathan that the ratio in Hari Kishan Khosla's case is in conflict
with the ratio in Satinder Singh's case which was neither distinguished
nor overruled and that the decision of a co- ordinate Bench cannot have
the effect of overruling decision of another co-ordinate Bench, cannot
be given countenance. The effect of the ratio in Satinder Singh's case
will be considered a little later; suffice it to state that there is no
conflict in the ratio of these two cases if the facts in Satinder Singh's
case are closely analysed and the principle laid down therein is
understood in its proper perspective. Therefore, Hari Kishan Khosla's
case cannot be held to be per incuriam not has it the effect of
overruling the ratio decidendi of Satinder Singh`s case."
25. In Ashwani Kumar Singh (supra) the Supreme Court held that the
pvr/psv 24 wp 5483-21-final.odt
Court should not place reliance without discussing as to how the factual
position fixed in the fact situation of the decision on which reliance is
placed. In such context, the Supreme Court in paragraphs 10 to 13 has
observed thus:-
"10. Courts should not place reliance on decisions without discussing
as to how the factual situation fits in with the fact situation of the
decision on which reliance is placed. Observations of courts are not to
be read as Euclid's theorems nor as provisions of the statute. These
observations must be read in the context in which they appear.
Judgments of courts are not to be construed as statutes. To interpret
words, phrases and provisions of a statute, it may become necessary for
Judges to embark upon lengthy discussions, but the discussion is meant
to explain and not to define. Judges interpret statutes, they do not
interpret judgments. They interpret words of statutes; their words are
not to be interpreted as statutes. In London Graving Dock Co. Ltd. v.
Horton [1951 AC 737 : (1951) 2 All ER 1 (HL)] (AC at p. 761) Lord
McDermott observed: (All ER p. 14 C-D)
"The matter cannot, of course, be settled merely by treating the
ipsissima verba of Willes, J., as though they were part of an Act of
Parliament and applying the rules of interpretation appropriate thereto.
This is not to detract from the great weight to be given to the language
actually used by that most distinguished Judge...."
11. In Home Office v. Dorset Yacht Co. [(1970) 2 All ER 294 : 1970
AC 1004 : (1970) 2 WLR 1140 (HL)] Lord Reid said, "Lord Atkin's
speech ... is not to be treated as if it were a statutory definition. It will
require qualification in new circumstances" (All ER p. 297 g-h).
Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2) [(1971) 1 WLR
1062 : (1971) 2 All ER 1267] observed: (All ER p. 1274d-e) "One must
not, of course, construe even a reserved judgment of even Russell, L.J.
as if it were an Act of Parliament;" In Herrington v. British Rlys. Board
[(1972) 2 WLR 537 : (1972) 1 All ER 749 : 1972 AC 877 (HL)] Lord
Morris said: (All ER p. 761c)
"There is always peril in treating the words of a speech or a judgment
as though they were words in a legislative enactment, and it is to be
remembered that judicial utterances are made in the setting of the facts
of a particular case."
12. Circumstantial flexibility, one additional or different fact may
make a world of difference between conclusions in two cases. Disposal
of cases by blindly placing reliance on a decision is not proper.
13. The following words of Hidayatullah, J. in the matter of
applying precedents have become locus classicus: (Abdul Kayoom v.
CIT [AIR 1962 SC 680] , AIR p. 688, para 19)
"19. ... Each case depends on its own facts and a close similarity
between one case and another is not enough because even a single
significant detail may alter the entire aspect. In deciding such cases,
pvr/psv 25 wp 5483-21-final.odt
one should avoid the temptation to decide cases (as said by Cardozo)
by matching the colour of one case against the colour of another. To
decide, therefore, on which side of the line a case falls, the broad
resemblance to another case is not at all decisive."
* * *
"Precedent would be followed only so far as it marks the path of justice,
but you must cut the dead wood and trim off the side branches, else
you will find yourself lost in thickets and branches. My plea is to keep
the path to justice clear of obstructions which could impede it."
26. The above cherished principles on the applicability of the doctrine
of precedents have guided the Courts for all times. Nonetheless,
sometimes it is certainly challenging for a Court to separate the ratio
from the obiter and to locate the binding observations as made in a
judgment. Mr. Kumbhakoni would be correct in his submissions on the
principles of law on the doctrine of precedents and obiter dicta so as to
be applied to the issues in hand. The endeavour of the Court would
thus be in applying such salutary principles that a decision is only an
authority for what it actually decides and insofar as the obiter dicta is
concerned, a statement on law in the judgment would be required to be
accepted to have a binding force.
27. Insofar as the question before the Court is concerned adverting to
the above principles of law, the first endeavour ought to be to consider
as to what can be plainly inferred from the observations of the Supreme
Court in paragraph 36 in "Asian Resurfacing of Road Agency's case. To
my mind paragraph 36 of the said decision contains "directions" of the
Supreme Court as clear from the bare wordings of its contents which
are binding on all the Courts in the country. These directions are,
pvr/psv 26 wp 5483-21-final.odt
however, in relation to all pending cases in which a stay against
proceedings of a civil or criminal trial is operating, and in such context,
it is observed by the Supreme Court that the same will come to an end
on expiry of six months from the date of the said judgment unless in an
exceptional case by a speaking order such stay is extended. This is clear
from the plain contents of the following extract as contained in
paragraph 36 of the decision:-
" In an attempt to remedy this, situation, we consider it
appropriate to direct that in all pending cases where stay against
proceedings of a civil or criminal trial is operating, the same will come
to an end on expiry of six months from today unless in an exceptional
case by a speaking order such stay is extended. In cases where stay is
granted in future, the same will end on expiry of six months from the
date of such order unless similar extension is granted by a speaking
order."
(emphasis supplied)
28. Also the following observations of the Supreme Court as
contained in paragraph 37 would lead to the same conclusion on the
intent of the directions as contained in paragraph 36 (supra). The
relevant extract of paragraph 37 reads thus:-
In all pending matters before the High Courts or other courts relating to
PC Act or all other civil or criminal cases, where stay of proceedings in
a pending trial is operating, stay will automatically lapse after six
months from today unless extended by a speaking order on above
parameters. Same course may also be adopted by civil and criminal
appellate/revisional courts under the jurisdiction of the High Courts.
The trial courts may, on expiry of above period, resume the proceedings
without waiting for any other intimation unless express order extending
stay is produced.
(emphasis supplied)
29. I find myself in agreement with Mr. Kumbhakoni, the learned AG
and Mr. Kulkarni learned counsel for the petitioner when they submit
that the directions of the Supreme Court in paragraph 36 and 37 of the
pvr/psv 27 wp 5483-21-final.odt
judgment of the Supreme Court in Asian Resurfacing of Road Agency's
case, would not apply to a category of orders passed by the Civil Court
or the Criminal Court which do not have the effect of stay of the
proceedings of the trial before the said Courts, as also to the orders
passed by the tribunals.
30. On a cumulative reading of paragraph 36 and 37 of the decision
of the Supreme Court in Asian Resurfacing of Road Agency's case, it is
quite clear that the directions of the Supreme Court relate to all pending
cases in which there was a stay operating against the proceedings of a
civil or criminal trial and which would automatically come to an end
after the expiry of six months unless extended by a speaking order. The
Supreme Court ordered that, the same course may also be adopted, by
Civil and Criminal appellate/revisional courts, under the jurisdiction of
the High Courts. The intention being that the trial of the pending cases
be not halted for longer durations by orders which stay the trial and
such cases ought to proceed for final adjudication, with utmost
expedition. It may not be permissible to read something in the said
directions which has not been provided, applying the principle that a
judgment cannot be read as if it is a statute. Thus, as the said directions
of the Supreme Court operate only qua the criminal and civil cases
pending trial, such directions cannot be construed to be applicable to the
other category of orders in such proceedings which would not stay the
"trial of civil or criminal cases". As far as civil cases are concerned, as
pvr/psv 28 wp 5483-21-final.odt
argued at the bar such orders illustratively can be orders of temporary
injunctions, stay orders which are not in the nature of stay of trial,
orders appointing Court Receivers, interim orders granting maintenance,
custody etc., orders appointing commissioner, order for an attachment
before judgment, and variety of such orders which a civil court may
pass dealing with the rights and interest of the parties on the subject
matter of the proceedings and which operate interse between the parteis
pending the adjudication of a civil suit. Similar orders are also passed
by appellate and revisional courts, which are also of a nature which do
not stay the trial of a civil suit, hence the orders of the Supreme Court in
paragraph 36 would not be applicable to such orders passed by the
revisional or appellate courts. In so far as criminal matters are
concerned, similarly as urged by the learned Advocate General that such
directions of the Supreme Court also may not be applicable to several
category of interim orders a Court may pass under the Code of Criminal
Procedure which do not stay the criminal trial. Also as such directions
of the Supreme Court apply to the pending proceedings before the Civil
or Criminal Courts the trial of which is stayed, these directions as rightly
pointed out at the bar, cannot be said to apply to the orders passed by
the various tribunals.
31. It needs to be noted that orders of the Supreme Court in Asian
Resurfacing of Road Agency's case were subject matter of consideration
in a case before the Supreme Court and before different High Courts. A
pvr/psv 29 wp 5483-21-final.odt
reference and discussion on such orders would aid the above conclusion
this Court has reached, on the applicability of such directions as
contained in paragraph 36 and 37 in Asian Resurfacing of Road Agency's
case. The following are those cases:-
32. A two Judge Bench of the Supreme Court in Fazalullah Khan vs
M.Akbar Contractor (D) By Lrs. 15 was considering the applicability of
the directions as contained in paragraph 36 of the decision in Asian
Resurfacing of Road Agency' case, in the context whether the interim
protection which was granted to the appellant, would come to an end on
expiry of six months as the trial Court has proceeded to apply the said
directions of the Supreme Court to hold that after expiry of a period of
six months, the interim stay which was granted was no more in force.
The Supreme Court in such context observed that if the interim order as
granted was not vacated and continued to operate beyond a period of
six months by reason of pendency of the appeal, it cannot be said that
the interim order would automatically stand vacated. The Supreme
Court in such context, has observed as under:-
3. In the present case, the issue is of specific performance of an
agreement which was granted by the first appellate court. The
appellant is a tenant in the suit premises in whose favour the decree
has been passed. The second appellate court reversed the decree. Leave
has been granted by this court and the interim protection was granted
on 20th March, 2009.
4. Learned counsel for the appellant submits that relying on the
aforesaid judgment of this court in Asian Resurfacing of Road Agency's
case (supra) in the eviction proceedings against the appellant as a
tenant, the revisional court seeks to proceed on the basis of a
submission of the respondents that on the expiry of period of six
months, the interim stay is no more in force. He further states that the
15 2019 SCC OnLine SC 1513
pvr/psv 30 wp 5483-21-final.odt
appellant undertakes before this court that if he loses in the present
appeal, he will hand over vacant and peaceful possession within a time
to be fixed by the Court without any further objection.
5. We are constrained to pen down a more detailed order as the
judgment of this Court in Asian Resurfacing of Road Agency's case
(supra) is sought to be relied upon by difference courts even in respect
of interim orders granted by this Court where the period of 6 months
has expired. Such a course of action is not permissible and if the
interim order granted by this Court is not vacated and continues
beyond a period of 6 months by reason of pendency of the appeal, it
cannot be said that the interim order would automatically stand
vacated."
(emphasis supplied)
33. A Division Bench of this Court in an order dated 28 February 2019
passed in the case "Oracle Financial Services Software Ltd., Mumbai vs.
Deputy Commissioner of Income Tax-13(1)(1)"16 had an occasion to
consider the directions of the Supreme Court in Asian Resurfacing of
Road Agency' case, in a case wherein an order passed by the Assessing
Officer and the Commissioner of Income Tax (Appeals) respectively were
challenged. The contention of the petitioner-assessee was to the effect
that 15% of the tax demand being already deposited, as per the CBDT
Circular dated 29 February 2016 as revised by further instructions dated
21 March 2016, stay was granted to the assessee upto the disposal of the
appeal by the Commissioner (Appeals). The Assessing Officer passed a
further order adjusting total refund amount against the demand and
granted stay till disposal of the appeal. Subsequently, the Assessing
Officer passed an another order in which referring to the decision of the
Supreme Court in Asian Resurfacing of Road Agency's case (supra),
observed that since the period of six months on a stay of demand had
lapsed, as also was reviewed by the CBDT the stay granted in the
16 Writ Petition No.542 of 2019(O.S.) Order dt. 28 February 2019
pvr/psv 31 wp 5483-21-final.odt
petitioner/assessee's case for the concerned assessment year stood
revoked and accordingly, called upon the petitioner-assessee to pay the
outstanding demand for the prior assessment years within seven days of
receipt of the said letter. Against such demand as raised by the Assessing
Officer, the petitioner-assessee approached the Principal Commissioner
of Income Tax who rejected the request for stay also relying on the
decision of the Supreme Court in Asian Resurfacing of Road Agency'
case, (supra) and permitted the Assessing Officer to recover the full
demand pending the appeal. It is in these circumstances, the Division
Bench considered the effect of the directions of the Supreme Court in
Asian Resurfacing of Road Agency's case (supra), and held that the
Assessing Officer had not correctly understood the directions of the
Supreme Court in Asian Resurfacing of Road Agency's case (supra). It
was held that neither the purport of the said judgment of the Supreme
Court nor the observations made therein, which were in the context of
civil and criminal litigation can be imported for quasi judicial
proceedings. It was held that the power of the Assessing Officer to
review the situation every six months, would not authorize him to lift
the stay previously granted after full consideration and insist on full
payment of tax without the assessee being responsible for delay in
disposal of the appeal or any other such similar material change in
circumstances. The observations of the Division Bench in paragraph 4
read thus:-
"4. We are prima facie of the view that the Revenue
pvr/psv 32 wp 5483-21-final.odt
Authorities committed serious error. Against the total
demand arising out of the order of assessment of Rs. 205
crore, the Assessing Officer has already recovered a total of
Rs. 140 crores by now through different means. There is no
allegation that the petitioner is responsible for delay in
disposal of the appeal before the Commissioner. Merely
relying upon the decision of the Supreme Court in the case of
Asian Resurfacing of Road Agency Pvt Ltd (supra), Revenue
Authorities now held a belief that any stay against the
recovery granted would automatically lapse after six months.
This is neither the purport of the judgment of the Supreme
Court, nor the observations made in the said judgment in the
context of civil and criminal litigation can be imported in
present set of quasi judicial proceedings. The power of the
Assessing Officer to review the situation every six months,
would not authorized him to lift the stay previously granted
after full consideration and insist on full payment of tax
without the assessee being responsible for delay in disposal
of the appeal or any other such similar material change in
circumstances."
(emphasis supplied)
34. A reference can also be made to a decision of the Division Bench
of the Kerala High Court in "Chandran Vs. C.H.Meenakshi & Ors."17. In
this case the Court was considering the proceedings arising out of the
Kerala Buildings (Lease and Rent Control) Act,1965. The revision
application before the High Court was pending and the legal issue as
raised in the revision was also a subject matter of consideration before
the Full Bench of the Kerala High Court. There was an interim stay of all
further proceedings subject to certain conditions, the interim order was
extended until further orders. When such was the position of the
pending proceedings before the High Court, the Munsiff's Court in
execution proceedings issued a notice to proceed on the execution on
the footing that the interim stay stood automatically vacated in view of
the directions of the Supreme Court in Asian Resurfacing of Road
17 2022 SCC OnLine Ker 702
pvr/psv 33 wp 5483-21-final.odt
Agency' case (supra). In such context, the Division Bench considered
the effect of the said directions of the Supreme Court and held that the
Munsiff Court was not correct in issuing notice on the ground that the
interim stay as granted by the High Court was not extended after a
period of six months. The Court observed that the directions of the
Supreme Court in Asian Resurfacing of Road Agency' case (supra), had
no application when the Appellate Court had granted stay to the
execution of the decree or the order of the trial Court or the first
Appellate Court as the case may be. The Division Bench in paragraph 18
has observed thus:-
"18. The time limit of six months in the directions issued by the
Three-Judge Bench in Asian Resurfacing of Road Agency Pvt. Ltd.
[(2018) 16 SCC 299] has no application, when the appellate court
grants stay of execution of the decree or order of the trial court or the
first appellate court, as the case may be; or when the revisional court
grants stay of execution of the order of eviction granted by the Rent
Control Court or the Appellate Authority, as the case may be; or when
the Appellate Authority grants stay of execution of the order of eviction
granted by the Rent Control Court; or when the appellate court in
criminal side grants stay of the conviction or execution of the sentence
by the trial court or the lower appellate court, as the case may be; or
when the revisional court in criminal side grants stay of the conviction
or execution of the sentence by the trial court. So long as the stay of
execution of the decree or order in civil side remains in force, there can
be no execution of that decree or order by the execution court. The trial
court or the first appellate court cannot insist that there has to be a
further order made by the High Court continuing the stay of such
judgment and decree on the expiry of six months from the date on
which that stay order was passed. Similarly, when the revisional court
grants stay of execution of the order of eviction granted by the Rent
Control Court or the Appellate Authority, as the case may be, or when
the Appellate Authority grants stay of execution of the order of eviction
granted by the Rent Control Court, the execution court cannot insist
that there has to be a further order made by the revisional court or the
Appellate Authority, as the case may be, continuing the stay of the order
of eviction on the expiry of six months from the date on which that stay
order was passed."
(emphasis supplied)
35. Also the Division Bench of the Gujarat High Court in the case
pvr/psv 34 wp 5483-21-final.odt
"Commissioner of Central Goods and Service Tax Vs. Anmol
Chlorochem18" had an occasion to consider the effect of the directions
of the Supreme Court in Asian Resurfacing of Road Agency's case,
(supra), in the context of a pending tax appeal preferred by the
respondent-assessee under Section 35(A) of the Central Excise Act,1944,
wherein a prayer for vacating of stay was made on behalf of the
revenue, in view of the decision of the Supreme Court in Asian
Resurfacing of Road Agency' case (supra). The Division Bench referring
to the orders passed by the Division Bench of this Court in Oracle
Financial Services Software Ltd., Mumbai (supra), while rejecting the
prayer as made by the revenue, held that the observations of the
Supreme Court with regard to continuation of any interim order beyond
the period of six months in any civil or criminal proceedings arising from
a trial fell altogether in a different context. It was observed that such
observations made in the decision of the Supreme Court in the context
of civil and criminal litigation cannot be made applicable in a Tax
Appeal. The observations of the Division Bench read thus:-
"6. In our opinion, the present application has been preferred on
absolute misreading of the decision of the Supreme Court referred to
above, more particularly, the observations made in paras 34 and 35
referred to above. The observations of the Supreme Court with regard
to continuation of any interim order beyond the period of six months in
any civil or criminal proceedings arising from a trial fell altogether in a
different context. The observations made in the decision of the
Supreme Court in the context of Civil and Criminal litigation cannot be
made applicable in a Tax Appeal. An identical issue fell for the
consideration of a Division Bench of the High Court of Bombay in the
case of Oracle Financial Services Software Ltd., Mumbai vs. Deputy
Commissioner of Income Tax-13(1)(1) & Ors. (Writ Petition No.542 of
2019) decided on February 28, 2019. The Bombay High Court observed
as under:
18 C/TAXAP/1332/2014, order dt.20/6/2019
pvr/psv 35 wp 5483-21-final.odt
"This is neither the purport of the judgment of the
Supreme Court, nor the observations made in the said
judgment in the context of civil and criminal litigation
can be imported in present set of quasi judicial
proceedings. The power of the Assessing Officer to
review the situation every six months,
would not authorized him to lift the stay previously
granted after full consideration and insist on full
payment of tax without the assessee being responsible
for delay in disposal of the appeal or any other such
similar material change in circumstances."
36. A useful reference can be made to the view taken by a learned
Single Judge of the Andhra Pradesh High Court in "K. Ranga Prasad
Varma Vs. Kotikalapudi Sitarama Murthy & Anr.19". In such case again a
question which had arisen for consideration of the Court was, whether
the directions of the Supreme Court in Asian Resurfacing of Road
Agency' case, (supra) were correctly applied by the executing Court on
the ground that the stay which was granted by the High Court was not
extended and was considered to have been automatically vacated as per
orders of the Supreme Court in Asian Resurfacing of Road Agency' case.
The executing Court hence intended to proceed to execute the decree.
The learned Single Judge in paragraph 13 of the judgment referring to
a decision of the Karnataka High Court observed that the contingency of
the expiry of stay after six months would arise only in cases where there
is a stay of the trial. The Court made the following observations:-
"13. A reading of the abovementioned paragraphs of the judgment of
the Hon'ble Apex Court demonstrates, in vivid and clear terms, that
contingency of expiry of stay after six months would arise only in cases
where there is stay of trial. In the instant case, such contingency does
not exist. Admittedly when the petitioner herein approached this court
by way of filing appeal in ASSR No. 6444 of 2005, this court, Vide
order dated 16.06.2005 in A.S.M.P. No. 1097 of 2005, granted interim
stay of all further proceedings in E.P. No. 3 of 2005 in O.S. No. 27 of
19 2019 SCC OnLine AP 69
pvr/psv 36 wp 5483-21-final.odt
1998 on the file of the I Additional District Judge, Visakhapatnam.
According to the learned counsel, the said stay is still operating and
subsisting. When a similar issue cropped up before the Karnataka High
Court in execution, the Karnataka High Court, after elaborately
considering the issue, held in its order dated 10.01.2019 in W.P. Nos.
100648-100649/2019, that the executing court cannot proceed to
execute judgment and decree which is stayed and categorically held
that if any appellate court in any regular appeal or second appeal
grants an interim stay of impugned judgment and decree, either of the
trial court or of the first appellate court, as the case may be, then, so
long as the stay of the execution of the decree remains in force, there
can be no execution of the judgment and decree. In the said judgment,
the Karnataka High Court also observed that the trial court or any other
court subordinate to the High Court, cannot insist that there has to be
further order made by the High Court continuing the stay of such
orders on the expiry of six months from the date on which stay order
was passed. The said principle was reiterated by a division Bench of the
Karnataka High Court in its order dated 15.03.2019 in R.F.A. No. 1344
of 2012."
(emphasis supplied)
37. A reference can also be made to a decision of a learned Single
Judge of the Allahabad High Court in "Dharam Vir Sood Vs. Smt. Savitri
Devi & 4 ors.20". In this case, the contention of the revision petitioner
was to the effect, that although, the Court had stayed the eviction of the
revision applicant until further orders, however, the executing Court
relying on the judgment of the Supreme Court in Asian Resurfacing of
Road Agency' case (supra), was inclined to proceed with the execution
of the decree on the assumption that the stay stood vacated after six
months. In these circumstances a prayer was made that such action of
the executing Court be stayed. The learned Single Judge of the
Allahabad High Court considering the purport of the directions of the
Supreme Court in Asian Resurfacing of Road Agency' case, (supra)
observed that the directions of the Supreme Court were in relation to
the pending trial wherein proceedings of the trial court had remained
20 SCC Revision No.205 of 2016 decided on 5 April 2019.
pvr/psv 37 wp 5483-21-final.odt
stayed by the High Court. It was observed that the said direction would
not apply to the facts of the case wherein the trial stood concluded and
the final judgment of the trial court was under challenge. Following are
the observations of the Court :-
"It is abundantly clear that the above direction of the Supreme Court is
in relation to the pending trial where proceedings of the trial court is
stayed by the High Court. The said direction would not apply to the
facts of the instant case where the trial has concluded and the final
judgment of the trial court is under challenge.
This Court, therefore, holds that the order passed by this Court
while entertaining the writ petition dated 3.8.2016 staying eviction of
the revisionist pursuant to impugned judgement and decree, would not
automatically come to end upon expiry of six months unless modified
or vacated."
38. The Court's attention was also drawn by Mr. Kulkarni to a Circular
dated 18 July 2019 issued by the Central Board of Indirect Taxes &
Customs, Directorate of Legal Affairs, Government of India, in the
context of the directions of the Supreme Court in Asian Resurfacing of
Road Agency' case (supra), informing all the Principal Chief/Chief
Commissioners of CGST & Customs and others, that the directions of the
Supreme Court in the said case would apply only to cases pending trial
before the Criminal and Civil Courts and in cases wherein a stay has
been granted on recovery of revenue by the CESTAT or the High Court,
the proper approach would be to file an application for vacating of the
stay before the appropriate forum and obtain suitable directions of the
tribunal or High Court, as the case may be, before initiating any
recovery action.
39. As regards the Government Circular dated 6 May 2021
pvr/psv 38 wp 5483-21-final.odt
Mr.Kumbhakoni has also fairly pointed out that the said Circular which
has been issued, considering the decision of the Supreme Court in Asian
Resurfacing of Road Agency's case (supra), would also require
modification as it does not, in the correct perspective apply the
directions of the Supreme Court in paragraph 36 as noted above. Mr.
Kumbhakoni states that further appropriate steps would be taken to
amend the circular so that the authorities are appropriately guided on
the correct effect of the directions of the Supreme Court. This more
particularly noticing that also in the present case the tribunal was
guided by the said circular in passing the impugned order.
40. In conclusion, it needs to be observed that the directions of the
Supreme Court in paragraph 36 and 37 in Asian Resurfacing of Road
Agency Private Limited, operate only qua the criminal and civil cases
pending trial, and such directions cannot be construed to be applicable
to the other category of orders in proceedings which do not stay the trial
of the civil or criminal cases as observed in paragraph 30 above. Such
orders of the Supreme Court are also not applicable to the proceedings
before the Tribunals. Thus, the tribunal was not correct in passing the
impugned order as also applying the government circular dated 6 May,
2021.
41. Before parting, it needs to be noted that the impugned order
dated 23 June, 2021 was passed by the Revenue Tribunal on a routine/
pvr/psv 39 wp 5483-21-final.odt
simplicitor application made by the petitioner seeking extension of the
ex-parte interim stay. The respondents were not represented before the
revenue tribunal when the impugned order came to be passed by the
Maharashtra Revenue Tribunal. In these circumstances, in my opinion,
as the present petition is being heard purely on an issue of law with the
assistance of the learned Advocate General, it is thought appropriate
that no useful purpose would be served to keep the petition pending and
the same can be disposed of at the admission stage itself, keeping it
open for the private respondents to make an application for vacating of
the ex-parte interim stay by making a proper application, if they so
desire. Thus, this decision would not cause any prejudice whatsoever to
the private respondents.
42. As a result of the above discussion, the present petition is disposed
of by the following order :-
(i) The impugned order dated 23 June, 2021 passed by the
Maharashtra Revenue Tribunal Bench at Pune is quashed
and set aside holding that the interim stay as granted by the
tribunal continues to operate unless vacated by a speaking
order. It is open to the respondents to make an application
for vacating of the interim order passed by the Revenue
Tribunal.
(ii) In view of the conclusion as noted above it is held that the
Government Circular dated 6th May 2021 does not correctly
apply the decision of the Supreme Court in Asian
Resurfacing Road Agency's case (supra) in relation to the
pvr/psv 40 wp 5483-21-final.odt
proceedings before the quasi judicial authorities and the
tribunals under the Land laws, when it directs in paragraph
2 thereof that the interim stay granted by the quasi judicial
authorities, tribunals under the Land Laws shall stand
automatically vacated after six months of the same being
granted.
(iii) Disposed of in the above terms. No costs.
43. The Court expresses its gratitude to Mr.Kumbhakoni, the learned
Advocate General for his valuable assistance in deciding the present
proceeding.
(G. S. KULKARNI, J.)
