Jharkhand High Court
Shiv Shankar Sharma vs The State Of Jharkhand And Ors on 23 June, 2022
[1]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(PIL) No. 4290 of 2021
Shiv Shankar Sharma ... ... Petitioner
Versus
The State of Jharkhand and Ors. ... ... Respondents
With
W.P.(PIL) No. 727 of 2022
Shiv Shankar Sharma ... ... Petitioner
Versus
The State of Jharkhand and Ors. ... ... Respondents
-------
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
-------
For the Petitioner : Mr. Rajeev Kumar, Advocate
For the State : Mr. Kapil Sibal, Sr. Advocate
Mr. Rajiv Ranjan, A.G.
Mr. Piyush Chitresh, A.C. to A.G.
For the Resp. No.3 : Mr. Rahul Lamba, Advocate [W.P.(PIL) No.4290 of 2021]
For the Res. Nos.6/7 : Mrs. Meenakshi Arora, Sr. Advocate
Mr. Amritansh Vats, Advocate
For the U.O.I. : Mr. Prashant Pallav, A.S.G.I.
For the E.D. : Mr. S.V. Raju, A.S.G.
Mr. Amit Kumar Das, Advocate
----------------------------
ORAL ORDER
14/Dated 23rd June, 2022
I.A. No.5255 of 2022 in W.P.(PIL) No. 4290 of 2021 and ;
I.A. No.5254 of 2022 in W.P.(PIL) No. 727 of 2022:
1. With the consent of the learned counsel for the parties, the matter has
been heard through video conferencing. They have no complaint
whatsoever regarding audio and/or video quality.
2. Both the instant interlocutory applications have been filed on behalf of
respondent no.6 [W.P.(PIL) No. 4290 of 2021] and respondent no.7
[2]
[W.P.(PIL) No. 727 of 2022] seeking adjournment of hearing of both
these writ petitions for a period of three weeks.
3. This Court has gone across the content of both the interlocutory
applications and has found therefrom that similar grounds have been
taken in both the interlocutory applications.
4. Mrs. Meenakshi Arora, learned senior counsel appearing for the
respondent no.6/7 assisted by Mr. Amritansh Vats, learned counsel has
vehemently argued for deferring the hearing of both the public interest
litigations chiefly on two grounds:
(i) The S.L.P. has been filed before the Hon'ble Apex Court being
S.L.P. (Civil) bearing Dairy No. 18912 of 2022 assailing the
order dated 03.06.2022, by which the writ petition has been held
to be maintainable, is pending consideration.
She submits that during pendency of the S.L.P., it will
not be appropriate to hear the issue on merit and to buttress her
argument, she has relied upon paragraph-13 of the judgment
passed by the Hon'ble Apex Court in Union Territory of
Chandigarh and Ors. vs. M/s Shiv Traders passed in Civil
Appeal No. 4762 of 2021.
(ii) The respondent no. 7 of W.P.(PIL) No. 727 of 2022, the applicant
herein, is also party to the W.P.(PIL) No. 4290 of 2021 in which
several supplementary affidavits have been filed on behalf of the
petitioner but the copies of the same have not been served. As
such, it is very difficult for the concerned respondent to contest
the issue on merit in W.P.(PIL) No. 4290 of 2021.
[3]
5. Mr. Kapil Sibal, learned senior counsel appearing for the State of
Jharkhand has submitted that he does not have to say anything with
respect to the instant interlocutory applications filed on behalf of the
respondent no.6/7 since he is representing the State of Jharkhand, i.e.,
the respondent no.1.
6. Per contra learned counsel for the petitioner has vehemently opposed
the aforesaid prayer made on behalf of the respondent no.6/7 for
seeking adjournment for a period of three weeks on the following
grounds :
(i) It has been submitted that filing of S.L.P. before the Hon'ble
Apex Court is not a tenable ground for the reason that the S.L.P.
filed on behalf of the respondent no.1-State of Jharkhand being
S.L.P.(C) No. 10622-10623 of 2022, was listed for hearing but
instead of pressing the matter on merit, a prayer was made on
behalf of the State of Jharkhand for adjournment of the matter.
Again taking such ground by the respondent no.6 is nothing but a
tactics to somehow delay the hearing of the matter on merit. He
could have preferred S.L.P. and mentioned it immediately after
passing of the order dated 03.06.2022. But respondents are doing
it one by one for the obvious reason.
(ii) It has been submitted that the ground of non-service of
supplementary affidavits is not fit to be accepted since such plea
is being raised at such a belated stage by the concerned
respondent as the same was not raised when the matter of
maintainability was being heard.
[4]
Further, no vakalatnama was filed on behalf of the
concerned respondent in W.P.(PIL) No. 4290 of 2021 which has
only been filed on 22.06.2022, one day before the date of listing
of the case for hearing on merit.
(iii) He submits that the counsel who has filed the vakalatnama on
22.06.2022 in W.P.(PIL) No. 727 of 2022, had appeared
regularly in Court proceedings but he has not prayed for
supplying the copies of the supplementary affidavits and has
rightly not prayed since no vakalatnama was filed consciously.
(iv) He submits that the conduct of the concerned respondent in
seeking adjournment is nothing but for the purpose of delaying
the matter in which issues of a larger public interest have been
raised.
(v) This Court had passed order on 17.06.2022 rejecting the prayer
for adjournment made on behalf of the respondent-State of
Jharkhand by filing I.A. No. 5021 of 2022 in W.P.(PIL) No. 4290
of 2021 and I.A. No. 5022 of 2022 W.P.(PIL) No. 727 of 2022,
as such, it is urged that the instant applications are fit to be
rejected since the concerned respondent with ulterior motive and
with mala fide intention is filing such adjournment applications
under the garb of filing S.L.P. before the Hon'ble Supreme Court
of India knowing fully well that no vakalatnama was filed,
learned counsel for the respondent made an impression that they
are appearing for the respondent. When the prayer for
adjournment made on behalf of the respondent no.1-State of
Jharkhand has been rejected and the matter has been posted for
[5]
hearing on merit, then only, the instant interlocutory applications
have been filed seeking adjournment on the ground of pendency
of S.L.P. before the Hon'ble Supreme Court as also non-service
of the copies of the supplementary affidavits.
7. Mr. S.V. Raju, learned Additional Solicitor General assisted by Mr.
Amit Kumar Das, learned counsel appearing for the E.D. on record has
submitted that the instant applications are fit to be rejected on the
following grounds:
(i) The applications have been filed with the ulterior motive seeking
adjournment. It has been submitted that when the concerned
respondent, i.e., respondent no.7 knowing about the order dated
03.06.2022 since the respondent no.6 in W.P.(PIL) No. 4290 of
2021 had already appeared in W.P.(PIL) No. 727 of 2022, who is
respondent no.7, being represented by Mr. Amritansh Vats,
learned counsel, as such, now taking the plea of filing of
vakalatnama in W.P.(PIL) No. 4290 of 2021 is not worth to be
accepted rather the same is required to be treated to have been
filed for the purpose of making of a ground for seeking
adjournment even though the issue involved in this case is having
larger public interest. It would be evident from the order passed
by the Hon'ble Supreme Court dated 24.05.2022, in particular
paragraph-10, thereof that the Hon'ble Supreme Court has passed
the order directing this Court to decide the issue of
maintainability on the first date of listing and thereafter, proceed
in accordance with law. Since the issue of maintainability has
[6]
already been decided, as such, this Court may proceed to decide
the issue on merits in accordance with law.
(ii) It has been submitted that this Court has decided the issue of
maintainability by passing an order on 03.06.2022 assailing
which, S.L.P. was filed being S.L.P.(C) No. 10622-10623 of
2022 (The State of Jharkhand vs. Shiv Shankar Sharma and Ors.).
Adjournment was sought raising the ground about pendency of
the S.L.P. as the case was not being listed due to on-going
summer vacation in the Hon'ble Supreme Court. However, the
case was mentioned before a Bench of the Hon'ble Supreme
Court but the Hon'ble Bench of the Apex Court observed that the
case having arisen out of a Public Interest Litigation, can be listed
after passing of the appropriate order by the Hon'ble The Chief
Justice of India only.
(iii) Further submission has been made at the time of hearing of the
matter on 17.06.2022 that the matter was taken up by the Hon'ble
Supreme Court on 17.06.2022 itself and was heard by the
Hon'ble Supreme Court but when the Hon'ble Bench was not
inclined to interfere with the order passed by this Court, a request
was made on behalf of Mr. Mukul Rohtagi, learned senior
counsel appearing on behalf of the respondent-State of Jharkhand
to list the matter after the summer vacation before an appropriate
Bench.
(iv) This Court, after taking into consideration the fact, the matter has
been directed to be listed after the summer vacation before an
appropriate Bench on the request made on behalf of the
[7]
respondent-State of Jharkhand being represented by Mr. Mukul
Rohatagi, learned senior counsel which was corroborated even by
Mr. Ashutosh Anand, learned Additional Advocate General-III
appearing for the State of Jharkhand, in open Court, passed an
order on 17.06.2022 rejecting the aforesaid interlocutory
application seeking adjournment filed on behalf of the
respondent-State of Jharkhand and on request made by the
respondent-State of Jharkhand, on the ground of difficulty of Mr.
Kapil Sibal, learned senior counsel who was not in a position to
physically come to Ranchi, with the consent of the parties, the
matter was directed to be listed to be heard under virtual mode on
23.06.2022. But, it is now being submitted that the S.L.P. has
been filed on behalf of respondent no.6 of W.P.(PIL) No. 4290 of
2021 and respondent no.7 of W.P.(PIL) No. 727 of 2022 also
seeking same prayer which was made by the State of Jharkhand
by filing interlocutory applications being I.A. No. 5021 of 2022
in W.P.(PIL) No. 4290 of 2021 and I.A. No. 5022 of 2022 in
W.P.(PIL) No. 727 of 2022.
(v) Serious objection has been raised that respondent no.6 of
W.P.(PIL) No. 4290 of 2021 and respondent no.7 of W.P.(PIL)
No. 727 of 2022 has well been represented by a senior counsel,
namely, Mr. Mukul Rohtagi, assisted by Mr. Amritansh Vats,
learned counsel by filing vakalatnama in W.P.(PIL) No. 727 of
2022 but no vakalatnama was filed on behalf of the concerned
respondents in W.P.(PIL) No. 4290 of 2021 and still the matter
was argued by both of them, shows the conduct of the concerned
[8]
respondent that only for making mockery of judicial system such
steps have been taken by filing vakalatnama in one case leaving
the another case and when the prayer made on behalf of the
respondent-State of Jharkhand, in both the public interest
litigations, was rejected, then a vakalatnama has been filed on
behalf of respondent no. 6 in W.P.(PIL) No. 4290 of 2021 on
22.06.2022 for making a ground for adjournment. Therefore, it
has been submitted that the conduct of the concerned respondent
cannot be said to be genuine one rather holding such a high post
in the State it was not expected from him to take such step
making mockery of the justice delivery system.
Learned Additional Solicitor General, therefore, in the backdrop
of the aforesaid fact, has submitted that the instant interlocutory
applications may be rejected.
8. We have heard the learned counsel for the parties and also appreciated
the submissions made on their behalf.
This Court, on the basis of the argument advanced on behalf of
the learned counsel for the applicant of the interlocutory applications,
has found therefrom that two grounds have been raised seeking
adjournment in the matter which reads as under:
Grounds for seeking adjournment:
(i) The matter is pending before the Hon'ble Supreme Court of India
and that may be heard after reopening of the Court since the
Hon'ble Supreme Court is closed for summer vacation, thereby,
contention has been raised that if during pendency of the said
[9]
petition before the Hon'ble Supreme Court, this Court in exercise
of power conferred under Article 226 of the Constitution of India
will proceed, the issue of maintainability pending before the
Hon'ble Apex Court, will become infructuous.
(ii) The respondent no. 7 of W.P.(PIL) No. 727 of 2022, the applicant
herein, is also party to the W.P.(PIL) No. 4290 of 2021 wherein
several supplementary affidavits have been filed on behalf of the
petitioner but the copies of the same have not been served, as
such, it is very difficult for the concerned respondent to contest
the issue on merit in W.P.(PIL) No. 4290 of 2021. Therefore, a
direction is required to be passed upon the learned counsel for the
petitioner to serve the copy of the aforesaid supplementary
affidavits.
9. Serious objection has been raised on behalf of the learned counsel for
the petitioner and learned Additional Solicitor General appearing for the
E.D. with respect to the ground for seeking adjournment as has been
referred above.
10. This Court, before delving upon the prayer for adjournment, deems it fit
and proper to refer certain admitted facts as per the material available
on record:
(i) W.P.(PIL) No.4290 of 2021 has been filed on 10.10.2021. It
would be evident from the party position that Mr. Hemant Soren
has been impleaded as respondent no.6 therein.
It also appears from the record of W.P.(PIL) No. 727 of
2022 that Mr. Hemant Soren, who is respondent no.6 in
[10]
W.P.(PIL) No. 4290 of 2021 is respondent no.7 in W.P.(PIL) No.
727 of 2022.
It needs to refer herein that both the PILs are being heard
together.
It appears from the order passed by this Court on
13.05.2022, which was challenged along with order dated
17.05.2022 in S.L.P. (Civil) No. 9729-9730 of 2022 (The State of
Jharkhand vs. Shiv Shankar Sharma and Ors.), that Mr.
Amritansh Vats, learned counsel had appeared on behalf of
respondent no. 7 by filing vakalatnama along with supplementary
affidavit appending counter affidavit filed on behalf of the
respondent no. 7 on 05.05.2022 in W.P.(PIL) No. 727 of 2022.
(ii) The due appearance has been made on behalf of respondent no.7
in W.P.(PIL) No. 727 of 2022 as would appear from the order
dated 17.05.2022 passed by this Court wherein the names of Mr.
Amritansh Vats, learned counsel along with Mr. Mukul Rohatagi,
learned senior counsel is reflected.
(iii) Again the appearance has been made on behalf of respondent
no.7 on 19.05.2022 by Mr. Mukul Rohatagi, learned senior
counsel assisted by Mr. Amritansh Vats, learned counsel.
(iv) Thereafter, the respondent no.7 has again been represented by
Mr. Mukul Rohatagi, learned senior counsel assisted by
Mr. Amritansh Vats on 24.05.2022, the day when this Court was
informed about the order passed by the Hon'ble Supreme Court
on 24.05.2022 in S.L.P.(Civil) No. 9729-9730 of 2022 and the
[11]
matter had been directed to be listed on 01.06.2022 for hearing
on the issue of maintainability as per the direction passed by the
Hon'ble Supreme Court on 24.05.2022.
(v) Further, on 01.06.2022, common order was passed in both the
public interest litigations and on that date also Mr. Amritansh
Vats, learned counsel appeared for the respondent no.6 as an
instructing counsel to Mr. Mukul Rohatagi, learned senior
counsel, the day when the issue of maintainability was heard and
the case was posted for orders on 03.06.2022.
The parties had appeared, including, the respondent
no.6/7 represented by Mr. Mukul Rohatagi, learned senior
counsel assisted by Mr. Amritansh Vats, learned counsel in both
the aforesaid PIL(s).
(vi) The case was listed on 10.06.2022, the day when the two
interlocutory applications were filed, one in W.P.(PIL) No. 4290
of 2021 being I.A. No. 4819 of 2022 and another in W.P.(PIL)
No. 727 of 2022 being I.A. No. 4826 of 2022 and on that date,
Mr. Amritansh Vats, learned counsel had appeared for the
respondent no.7/6. Both the interlocutory applications were
rejected.
This Court, for reference, needs to refer herein the
common orders passed in W.P.(PIL) No. 4290 of 2021 and
W.P.(PIL) No. 727 of 2022 wherein appearance of the learned
senior counsel, namely, Mr. Mukul Rohatagi and Mr. Amritansh
[12]
Vats, learned instructing counsel is there, which is being
reproduced as under:
―Order dated 13.05.2022:
For the Petitioner : Mr. Rajeev Kumar, Advocate
For the State : Mr. Kapil Sibal, Sr. Advocate
: Mr. Rajiv Ranjan, Advocate General
: Mr. Piyush Chitresh, A.C. to A.G.
For Resp. No.7 : Mr. Mukul Rohatagi, Sr. Advocate
: Mr. Amritansh Vats, Advocate
For the UOI : Mr. Prashant Pallav, A.S.G.I.
For the E.D. : Mr. Tushar Mehta, Sr. Advocate
Order dated 17.05.2022:
For the Petitioner : Mr. Rajeev Kumar, Advocate
For the State : Mr. Kapil Sibal, Sr. Advocate
: Mr. Rajiv Ranjan, Advocate General
: Mr. Piyush Chitresh, A.C. to A.G.
For Resp. No.7 : Mr. Mukul Rohatagi, Sr. Advocate
: Mr. Amritansh Vats, Advocate
For the UOI : Mr. Prashant Pallav, A.S.G.I.
For the E.D. : Mr. Tushar Mehta, Sr. Advocate
Order dated 19.05.2022:
For the Petitioner : Mr. Rajeev Kumar, Advocate
For the State : Mr. Kapil Sibal, Sr. Advocate
: Mr. Rajiv Ranjan, Advocate General
: Mr. Piyush Chitresh, A.C to A.G
For Res. No. 7 : Mr. Mukul Rohatagi, Sr. Advocate
: Mr. Amritansh Vats, Advocate
For the UOI : Mr. Prashant Pallav, A.S.G.I
For the E.D. : Mr. Tushar Mehta, Senior Advocate
Order dated 24.05.2022:
For the Petitioner : Mr. Rajeev Kumar, Advocate
For the State : Mr. Kapil Sibal, Sr. Advocate
: Mr. Rajiv Ranjan, Advocate General
: Mr. Piyush Chitresh, A.C to A.G
For Res. No. 7 : Mr. Mukul Rohatagi, Sr. Advocate
: Mr. Amritansh Vats, Advocate
For the UOI : Mr. Prashant Pallav, A.S.G.I
For the E.D. : Mr. Tushar Mehta, Senior Advocate
Order dated 01.06.2022:
For the Petitioner : Mr. Rajeev Kumar, Advocate.
For the State : Mr. Kapil Sibal, Sr. Advocate.
: Mr. Rajiv Ranjan, A.G.
: Mr. Piyush Chitresh, A.C. to A.G.
For the UOI : Mr. Prashant Pallav, A.S.G.I.
For Respondent No.3 : Mr. Rahul Lamba, Advocate
For the ED : Mr. Tushar Mehta, S.G.I.
: Mr. Amit Kumar Das, Advocate.
For the Resp. No.6 : Mr. Mukul Rohatagi, Sr. Advocate
: Mr. Amritansh Vats, Advocate
Order dated 03.06.2022:
[13]
For the Petitioner : Mr. Rajeev Kumar, Advocate
For the State : Mr. Kapil Sibal, Senior Advocate
: Mr. Rajiv Ranjan, A.G.
: Mr. Piyush Chitresh, A.C. to A.G.
For the Resp. No.3 : Mr. Rahul Lamba, Advocate
[In W.P.(PIL) No.4290 of 2021]
For the Resp. No.6/7 : Mr. Mukul Rohatagi, Senior Advocate
: Mr. Amritansh Vats, Advocate
& In WP (PIL) No. 727 of 2022 Resp. No. 7]
For the UOI : Mr. Prashant Pallav, A.S.G.I.
For the E.D. : Mr. Tushar Mehta, Senior Advocate
: Mr. Amit Kumar Das, Advocate
Order dated 10.06.2022:
For the Petitioners : Mr. Rajeev Kumar, Advocate
For the State : Mr. Rajiv Ranjan, Advocate General
: Mr. Piyush Chitresh, A.C. to A.G.
For the Resp. No.3 : Mr.Rahul Lamba, Advocate
[In W.P.(PIL) No.4290/21]
For the Resp. No.7/6 : Mr. Amritansh Vats, Advocate
[In W.P.(PIL) No.727/2022 & 4290/21]
For the UOI : Mr. Prashant Pallav, A.S.G.I.
For the E.D. : Mr. S.V.Raju, A.S.G.
: Mr. Amit Kumar Das, Advocate
: Mr. Rishabh Dubey, Advocate
: Mr. Anshuman Singh, Advocate
: Mr. Harsh Paul Singh, Advocate‖
(vii) The interlocutory applications, being I.A. No. 5021 of 2022 in
W.P.(PIL) No. 4290 of 2021 and I.A. No. 5022 of 2022
W.P.(PIL) No. 727 of 2022, were filed on behalf of respondent-
State of Jharkhand seeking adjournment on the ground of special
leave petition having been filed before the Hon'ble Supreme
Court and this Court after appreciating the rival submissions
made on behalf of the parties, passed detailed order on
17.06.2022.
(viii) The aforesaid order was passed in presence of learned counsel for
the respondent no.6 in W.P.(PIL) No. 4290 of 2021 and
respondent no.7 in W.P.(PIL) No. 727 of 2022, i.e., in presence
of Mr. Amritansh Vats. This Court had passed specific order on
01.06.2022, wherein, Mr. Mukul Rohatagi, learned senior
counsel was appearing for the respondent no.6 in W.P.(PIL) No.
[14]
4290 of 2021 and respondent no.7 in W.P.(PIL) No. 727 of 2022
and had submitted that he was raising the issue of
maintainability. However, Mr. Kapil Sibal, learned senior
counsel appearing for the State of Jhakrhand has submitted that
he is raising the issue of maintainability only in W.P.(PIL) No.
4290 of 2021 only. For ready reference, the order dated
01.06.2022 is being reproduced as under:
―We have perused the order passed by the Hon'ble Supreme
Court in S.L.P. (C) No. 9729-9730 of 2022, which has been brought
on record by filing I.A. No. 4525 of 2022 in W.P. (PIL) No. 727 of
2022 by the State of Jharkhand.
The relevant passage from the aforesaid order containing
direction given by the Hon'ble Supreme Court is extracted and
reproduced as under: -
―10. The issue of maintainability should be dealt with by the High
Court on the next date of listing when the proceedings are taken up.
Based on the outcome of the objections to the maintainability of the
proceedings, the High Court may thereafter proceed in accordance
with law.
11. The Special Leave Petitions are disposed of in the above terms.
12. This Court has had no occasion to deal with the merits of the
rival contentions which arise in the Special Leave Petitions or nor
has it become necessary for this Court to express any view on the
allegations which are levelled in the writ petition since that is a
matter which is pending consideration before the High Court.‖
Mr. Kapil Sibal, learned Senior Counsel for the State of
Jharkhand confines his argument with respect to the issue of
maintainability as raised in W.P. (PIL) No. 4290 of 2021 only.
At the time of hearing, referring the aforesaid order of the
Hon'ble Supreme Court, question was put to him twice by this Court
as to whether he is raising the issue of maintainability in both the
matters i.e. W.P. (PIL) No. 4290 of 2021 and W.P. (PIL) No. 727 of
2022.
[15]
He submitted that he is raising the issue only in W.P. (PIL)
No.4290 of 2021 and proceeded to do that.
However, Mr. Mukul Rohatagi, learned Senior Counsel has
submitted that he is raising the issue of maintainability as
respondent no.6 in W.P. (PIL) No. 4290 of 2021 and respondent no.
We have heard the parties on the issue of maintainability in
detail. Put up these matters ‗For Orders' day after tomorrow i.e.
03.06.2022 at 10.30 a.m.‖
It is, therefore, evident that the issue of maintainability has well
been raised on behalf of respondent no.6/7 before this Court which has
been decided against the respondent no.6 in W.P.(PIL) No. 4290 of
2021 and respondent no.7 in W.P.(PIL) No. 727 of 2022 as per the
order dated 03.06.2022.
11. When the matter was taken up on 10.06.2022, it was informed to this
Court that the issue of maintainability has been questioned before the
Hon'ble Supreme Court by filing S.L.P. on behalf of the State of
Jharkhand passed in W.P.(PIL) No. 4290 of 2021 and on consideration
of the fact that the issue of maintainability even though has been raised
on behalf of the respondent before this Court which has been decided
vide order dated 03.06.2022 but it was not informed on that day that
respondent no.6/7 has also filed S.L.P. rather the information was given
regarding filing of the same by the respondent no.1-State of Jharkhand
only.
12. It appears that on 10.06.2022, when this Court has called upon the
learned Advocate General representing the State of Jharkhand to
address the issue on merit so far as it relates to W.P.(PIL) No. 727 of
2022 since no S.L.P. has been preferred against the order passed in
W.P.(PIL) No. 727 of 2022 (common order) on behalf of the respondent
[16]
no.7, even in that case, prayer for adjournment was made, therefore, this
Court had passed the following orders:
―I.A. No.4819 of 2022 in W.P.(PIL) No.4290 of 2021 and I.A. No.4826
of 2022 in W.P.(PIL) No.727 of 2022
I.A. No.4819 of 2022 in W.P.(PIL) No.4290 of 2021 and I.A. No.4826
of 2022 in W.P.(PIL) No.727 of 2022 have been filed by Respondent No.1
praying for adjournment for a period of two weeks.
2. Mr. Rajiv Ranjan, learned Advocate General appearing for the
respondent State of Jharkhand, has submitted that vide the order dated
24.05.2022 the Hon'ble Supreme Court has directed this court to decide
the issue of maintainability upfront and only after deciding the issue of
maintainability, to proceed further in the subject PIL.
3. It has been stated that the case was taken up on 01.06.2022 and the
order was passed on 03.06.2022 but the same was uploaded in the late
evening of 07.06.2022. The matter was referred for taking legal advice
on 07.06.2022. As per legal advice received, the Respondent No.1 has
decided to challenge the said judgment/order before the Hon'ble
Supreme Court of India by filing Special Leave Petition under Article
136 of the Constitution of India and, as such, the respondent would
require some time to approach the Hon'ble Supreme Court of India and
if the prayer for adjournment will not be allowed and this Court will
proceed for hearing the instant PIL on merit, the same would render the
Special Leave Petition infructuous and nothing will survive in the Special
Leave Petition.
4. Learned counsel for the petitioner has raised serious objection for
seeking adjournment of the PILs so as also learned counsel appearing
for the respondent Enforcement Directorate by raising common issue.
5. Learned counsel for the petitioner has submitted that the ground for
seeking adjournment of these two PILs by the State of Jharkhand, even
though in one of the PILs, i.e., W.P.(PIL) No.727 of 2022, the issue of
maintainability has not been raised, prayer for adjournment is being
made which is nothing but delaying tactics.
It has also been submitted that there is every likelihood of tampering
with the evidences if there will be delay in disposal of the writ petition
since the issue pertains in these PILs involves public interest at large.
[17]
6. Mr. S.B.Raju, learned Additional Solicitor General of India, has raised
serious objection for seeking adjournment. He has referred to the order
passed by the Hon'ble Supreme Court dated 24.05.2022 wherein the
Hon'ble Apex Court has specifically directed, as would appear from
paragraph 10 thereof, that - the issue of maintainability should be dealt
with by the High Court on the next date of listing when the proceedings
are taken up. Based on the outcome of the objections to the
maintainability of the proceedings, the High Court may thereafter
proceed in accordance with law. Therefore, submission has been made
that since this Court has already decided the issue of maintainability, as
such, as per the order passed by the Hon'ble Supreme Court as under
paragraph 10, the prayer for adjournment is fit to be rejected and this
Court should proceed further in accordance with law.
Further objection has been raised that even accepting the ground taken
by the respondent State of Jharkhand for seeking adjournment, that may
be considered for granting adjournment of W.P.(PIL) No.4290 of 2021,
but, so far as W.P.(PIL) No. 727 of 2022 is concerned, since the State of
Jharkhand has not raised the issue of maintainability of the said PIL, it is
not available to them to make prayer for adjournment of W.P.(PIL)
No.727 of 2022.
It has also been submitted that the issue of maintainability of W.P.(PIL)
No.727 of 2022 has also not been raised by the respondent State of
Jharkhand before the Hon'ble Supreme Court and, as such, even if the
issue of maintainability has been decided in W.P.(PIL) No.4290 of 2021,
this Court should hear W.P.(PIL) No.727 of 2022 and W.P.(PIL)
No.4632 of 2019. It is urged that, when the issue of maintainability of
W.P.(PIL) No.727 of 2022 has not been raised before this Court, where
is the question of raising the issue of maintainability with respect to
W.P.(PIL) No.727 of 2022 before the Hon'ble Supreme Court?
Further submission has been made that the other writ petition, i.e.,
W.P.(PIL) No.4632 of 2019 which has also been directed to be listed side
by side of these two PILs, i.e., W.P.(PIL) No.4290 of 2021 and W.P.(PIL)
No.727 of 2022 but in W.P.(PIL) No.4632 of 2019 the issue of
maintainability has not at all been raised but surprisingly the respondent
State of Jharkhand is not willing to address the Court on merit in that
matter also. Reason is obvious, the respondent State of Jharkhand wants
to delay the matter. It is submitted that, since issue of maintainability has
not been raised in W.P.(PIL) No.727 of 2022 and W.P.(PIL) No.4632 of
2019, the prayer for adjournment sought for at least in these two cases
may not be allowed.
[18]
7. This Court, on consideration of the objection made on behalf of the
petitioner as also the respondent Enforcement Directorate, is of the view
that the submission to the effect that the issue of maintainability has been
raised on behalf of the respondent State of Jharkhand only with respect
to W.P.(PIL) No.4290 of 2021, as would appear from order dated
01.06.2022. It is recorded therein that on specific query put to Mr. Kapil
Sibal, learned Senior counsel, representing the respondent State of
Jharkhand - as to whether the issue of maintainability is being raised in
both the PILs, i.e., W.P.(PIL) No.4290 of 2021 and W.P.(PIL) No.727 of
2022, Mr. Sibal submitted that the issue of maintainability is being raised
only in W.P.(PIL) No.4290 of 2021, as would be evident from the order
dated 01.06.2021 which is quoted hereunder:
―.........
.........
Mr. Kapil Sibal, learned Senior Counsel for the State of
Jharkhand confines his argument with respect to the issue of
maintainability as raised in W.P.(PIL) No.4290 of 2021 only.
At the time of hearing, referring the aforesaid order of the
Hon'ble Supreme Court, question was put to him twice by this Court
as to whether he is raising the issue of maintainability in both the
matters i.e. W.P.(PIL) No.4290 of 2021 and W.P.(PIL) No.727 of
2022.
He submitted that he is raising the issue only in W.P.(PIL)
No.4290 of 2021 and proceeded to do that.
.........
... ... ...‖
Let it also to be noted that in W.P.(PIL) No.727 of 2022 also a counter
affidavit has been filed by the State of Jharkhand in which the issue of
maintainability has been raised. Further, in the I.A. No.4525 of 2022
filed in the aforesaid case by the State for bringing the order passed by
Hon'ble Supreme Court in the concerned SLP's on record, following
prayer has been made:-
―(a) Dismiss the Public Interest Litigation being Writ Petition being
WP (PIL) No.727 of 2022 as not maintainable and in gross abuse of
the process of law with exemplary cost;
And/or,
(b) Segregate the present Writ Petition being WP(PIL) No.727/2022
from WP(PIL) No.4632/2019 titled Arun Kumar Dubey Vs. The
Director, Directorate of Enforcement & Ors. and WP(PIL)
[19]
No.4290/2021 titled Shiv Shankar Sharma Vs. The State of
Jharkhand & Ors. and hear it separately;‖
It is clear from prayer (a) that, through the aforesaid interlocutory
application also, the issue of maintainability was requested to be decided
but for the reasons best known to it, the State of Jharkhand did not press
the issue at the time of hearing of the matter.
Further, vide prayer no. (b) of the aforesaid I.A. No.4525 of 2022, it
has been requested that the hearing of the three PIL's, i.e., W.P.(PIL)
No.4290 of 2021, W.P.(PIL) No.727 of 2022 and W.P.(PIL) No.4632 of
2019 should be taken up separately.
However, surprisingly it is now being urged that even though the issue
of maintainability has not been raised in W.P.(PIL) No.727 of 2022 as
well as in W.P.(PIL) No.4632 of 2019 and despite the fact that a prayer
was made to hear the writ petitions separately, today it is being
requested that none of writ petitions should be heard on merit as the
order passed by this Court in one of the writ petition [W.P.(PIL) No.4290
of 2021] is being challenged before the Hon'ble Apex Court.
8. The question is when the State of Jharkhand has not raised the issue of
maintainability of W.P.(PIL) No.727 of 2022, where is the question of
challenging the issue of maintainability which has been answered by this
Court on 03.06.2022 against the respondent State of Jharkhand by filing
Special Leave Petition before the Hon'ble Supreme Court.
Further, this Court asked learned Advocate General to address the
issue on merit so far as it relates to W.P.(PIL) No.4632 of 2019 but even
in that case submission has been made that adjournment may be granted.
This Court fails to understand as to why the State of Jharkhand, even in
the cases where issue of maintainability has not been raised, is avoiding
to argue the matter on merit today.
9. Be that as it may, this Court, after taking into consideration the fact
that the respondent State of Jharkhand has preferred Special Leave
Petition being Diary No.18261 of 2022, and learned counsel for the
respondent No.7/6 has also stated at the time of hearing that the said
respondent is also intending to challenge the order passed by this Court
before the Hon'ble Supreme Court, deems it fit and proper to adjourn the
matters for today and direct it to be listed on 17.06.2022 at the top of the
list.
[20]
Accordingly, it is directed that the parties will be required to be well
represented on the next date of hearing.
10. Accordingly, I.A. No.4819 of 2022 in W.P.(PIL) No.4290 of 2021 and
I.A. No.4826 of 2022 in W.P.(PIL) No.727 of 2022 stand disposed of.‖
13. It further appears from the order dated 17.06.2022, recorded on the
basis of the submission made on behalf of the learned Additional
Solicitor General appearing for the E.D. as a caveator and according to
him when the Hon'ble Apex Court was about to dismiss the S.L.P., on
the request made by Mr. Mukul Rohatagi, learned senior counsel, the
matter was adjourned to be listed after reopening of the Hon'ble
Supreme Court. The said order is being reproduced as under:
―1. At the request made by Mr. Mukul Rohatagi, learned senior counsel
appearing on behalf of the petitioner, list the matter after the summer
vacation before an appropriate Bench.‖
14. However, this Court has adjourned the matter by directing it to be listed
today, i.e., on 23.06.2022, as would appear from the order dated
17.06.2022, which reads as under:
―I.A. No.5021 of 2022 in W.P.(PIL) No.4290 of 2021 and I.A. No.5022
of 2022 in W.P.(PIL) No.727 of 2022
I.A. No.5021 of 2022 in W.P.(PIL) No.4290 of 2021 and I.A. No.5022
of 2022 in W.P.(PIL) No.727 of 2022 have been filed for adjournment in
the matter.
A ground has been taken that the respondent has approached the
Hon'ble Supreme Court of India on 10.06.2022 by filing S.L.P (C)
No.10622-23/2022 (State of Jharkhand vs. Shiv Shankar Sharma)
challenging the order dated 03.06.2022 passed by this Court on the issue
of maintainability and the outcome of the same is awaited.
A further stand has been taken that Mr. Kapil Sibal, learned Senior
Counsel, who has been representing the State of Jharkhand since
beginning has been diagnosed as to be infected by Covid-19 virus and
therefore, he is unable to appear on 17.06.2022. It is also stated at the
time of hearing that the learned Advocate General has also suffered from
Covid-19.
[21]
A further stand has been taken that the S.L.P challenging the order
dated 03.06.2022 could not be listed on account of factors beyond the
control of the applicant perhaps due to Summer vacation in the Hon'ble
Supreme Court and in this regard the Advocate of the State of Jharkhand
has requested the Registrar for urgent listing of the S.L.P. It is also
stated that the request for listing was refused by the Registrar of the
Hon'ble Supreme Court of India as the matter was not verified as per the
procedure of the Registry.
In that background of the matter, when the matter was mentioned
before a Bench, it was indicated by the Hon'ble Supreme Court that since
the matter is arising out of an order passed in the P.I.L. the same can be
listed after passing of the appropriate orders by the Hon'ble Chief
Justice of India. Thereafter, it is stated in the interlocutory application
that till date there is no information regarding listing of the case.
In the aforesaid background of the matter, a prayer has been made to
adjourn the case to be taken up after two weeks.
However, at the time of hearing of the matter, it was informed at the
Bar that the matter was taken up by the Hon'ble Supreme Court today
itself.
Mr. Rajeev Kumar, learned counsel appearing for the petitioner and
Mr. S.V. Raju, learned Assistant Solicitor General of India both of them
have stated that the matter was heard by the Apex Court but when the
Hon'ble Bench was not inclined to intervene in the matter, the State of
Jharkhand requested to list the matter on 11.07.2022 before a regular
Bench and as such the order was passed.
Mr. Ashutosh Anand, learned Additional Advocate General-III
appearing for the State of Jharkhand, on instructions, has also admitted
the aforesaid fact before us.
It is intriguing that when the matter was taken up by the Hon'ble
Supreme Court, why the State of Jharkhand could took a stand that the
matter should not be heard and it should be placed before a regular
Bench in regular manner. In nutshell, it appears that the issue raised in
this interlocutory application that the S.L.P is pending before the
Hon'ble Supreme Court is now over as the State of Jharkhand itself did
not take steps to get the issue decided by the Hon'ble Supreme Court as
has been informed at the Bar.
However, since it is stated that 2-3 days back, Mr. Sibal has been
infected with Covid-19 and the same is the case with the learned
[22]
Advocate General, we would be posting the matter on 23.06.2022 at
10.30 a.m. at the top of the list. We hope and trust that both the lawyers
would recover by that time and in case they are not, then the State of
Jharkhand would make necessary arrangement for hearing on that day.
This goes without saying that we have proceeded to fix the date on
23.06.2022 for hearing on merit of the Public Interest Litigation only for
the reason that the Hon'ble Supreme Court vide order dated 24.05.2022
passed in S.L.P.(C) No.9729-9730 of 2022 had already directed us to
decide the issue of maintainability on the next date of listing and
thereafter proceed in accordance with law.
The State of Jharkhand had an opportunity before the Hon'ble Supreme
Court to argue the matter and get the stay order or the appropriate
orders of the Hon'ble Supreme Court but when the matter was taken up,
it is stated at the time of hearing, a prayer was made on behalf of the
state of Jharkhand to adjourn the matter to be taken up on 11.07.2022 by
a regular Bench of Hon'ble Supreme Court.
At the request of State of Jharkhand made at the time of hearing of this
matter for hearing the matter under the Video Conferencing Mode as
there may be difficulty for Mr. Sibal to physically come Ranchi on that
day since no objection is being raised on behalf of the parties i.e.,
learned counsel for the petitioner or Mr. Raju, learned A.S.G., appearing
for the Department of Enforcement Directorate, this Court will take up
the the matters on 23.06.2022 under the Video Conferencing Mode.
Accordingly, both I.A. No.5021 of 2022 in W.P.(PIL) No.4290 of 2021
and I.A. No.5022 of 2022 in W.P.(PIL) No.727 of 2022 stand disposed
of.‖
15. It is relevant to note herein that Mr. Mukul Rohatagi, learned senior
counsel who was appearing for the respondent no.6/7 assisted by Mr.
Amritansh Vats, learned counsel before this Court, has represented the
State of Jharkhand before the Hon'ble Supreme Court in S.L.P. (C) No.
10622-10623 of 2022.
16. This Court, put a question upon Mrs. Meenakshi Arora, learned senior
counsel that how the counsel, who was appearing on behalf of
[23]
respondent no.6/7 before this Court, could have represented the State of
Jharkhand before the Hon'ble Apex Court?
In reply, it was submitted that there is no conflict of interest in
between the respondent no.6 of W.P.(PIL) No. 4290 of 2021 and
respondent no.7 of W.P.(PIL) No. 727 of 2022 and the respondent no.1,
i.e., The State of Jharkhand.
17. Learned counsel for the respondent no. 6 of W.P.(PIL) No. 4290 of
2021 and respondent no.7 of W.P.(PIL) No.727 of 2022 has sought
adjournment on the grounds that the matter is pending before the
Hon'ble Supreme Court of India and may be heard after reopening of
the Court since the Hon'ble Supreme Court is closed for summer
vacation, as also, the copies of the supplementary affidavits filed on
behalf of the petitioner, the copies of the same have not been served and
in absence thereof, if both the public interest litigations will be heard, it
will prejudice the interest of the applicant herein.
Ground-I:
18. So far as the issue pertaining to pendency of the S.L.P. before the
Hon'ble Supreme Court is concerned, the similar ground was taken by
the State of Jharkhand as would appear from the order dated
17.06.2022, wherein, it has been recorded on the basis of the
submissions made on behalf of the learned counsel for the respondent-
E.D. and the petitioner that the matter was listed before the Hon'ble
Apex Court on 17.06.2022 but when it was about to be dismissed by the
Hon'ble Supreme Court, it was on the request made on behalf of Mr.
Mukul Rohatagi, learned senior counsel, the matter has been adjourned
to be listed after the summer vacation before an appropriate Bench. The
[24]
relevant part stands mentioned in the order dated 17.06.2022 as quoted
and referred above. Therefore, this Court had passed an order that the
question of pendency of S.L.P. cannot be a ground after making request
for adjournment before the Hon'ble Supreme Court.
19. Similar ground has been taken about pendency of S.L.P. in the instant
interlocutory applications.
Question arises herein is that why the applicant, respondent
no.6/7 has not chosen to file S.L.P. immediately after passing of the
order dated 03.06.2022 and why no effort was made for its listing
before the Vacation Bench as was done by the State of Jharkhand?
There is no explanation to this effect in the instant interlocutory
applications.
Further question has been raised as to why the S.L.P. has been
filed one day before the hearing of the case as has been fixed by this
Court vide order dated 17.06.2022 taking into consideration the
mandate of the Hon'ble Supreme Court in the order dated 24.05.2022 in
paragraph-10? It has been directed by the Hon'ble Supreme Court to
decide the issue of maintainability on the first day of listing and
thereafter, proceed in accordance with law. For ready reference,
paragraph-10 of the order dated 24.05.2022 passed by the Hon'ble
Supreme Court is being reproduced as under:
―10. The issue of maintainability should be dealt with by the High court
on the next date of listing when the proceedings are taken up. Based on
the outcome of the objections to the maintainability of the proceedings,
the High Court may thereafter proceed in accordance with law.‖
[25]
20. As such, this Court is of the considered view that filing of the S.L.P.
just one day before the hearing of this case, specifically been fixed with
the consent of the parties when the counsel for the respondent no.6/7
had also appeared and not made any objection on hearing of the issue
on the next date, is nothing but only to delay the hearing of the matter
on merit.
21. This Court, therefore, is of the view taking into consideration the
direction of the Hon'ble Supreme Court vide order dated 24.05.2022 to
decide the issue of maintainability on the first date of listing and
thereafter proceed in accordance with law, request for adjournment on
the ground of filing of S.L.P., that too, just one day before the date of
hearing, cannot be said to be a bona fide ground agitated on behalf of
the concerned respondent for seeking adjournment.
22. In the instant interlocutory applications, reliance has been placed on the
judgment passed by the Hon'ble Apex Court in Union Territory of
Chandigarh and Ors. vs. M/s Shiv Traders (supra). It is urged that
during pendency of the S.L.P., the High Court was restrained to proceed
further in the matter.
23. We have gone through the aforesaid judgment and have found from the
factual aspect that the notices of assessment under Section 29(2) of the
PVAT Act, 2005 and under Section 9(2) of the Central Sales Tax act,
1956 for the accounting period 2008-09, 2009-10, 2010-11 were
questioned by filing three writ petitions before the High Court of Punjab
and Haryana. The writ petitions were heard and disposed of together
with a batch of petitions instituted by other dealers. The assessment
notices were set aside by the High Court on the ground that the
[26]
assessment proceedings were initiated beyond the stipulated period of
limitation in the statute.
The judgment of the High Court was challenged before the
Hon'ble Supreme Court. The matter, when was pending before the
Hon'ble Supreme Court, on 18.02.2021, an order was passed by which a
final opportunity was granted to the respondent to appear in person or
through an authorized representative on 01.03.2021. Despite the fact
that the Hon'ble Supreme Court was in seisin of the proceeding, a writ
petition was filed before the High Court of Punjab and Haryana
challenging the notice dated 18.02.2021. The High Court entertained
the writ petition and stayed further proceedings pursuant to the notice
dated 18.02.2021. The proceeding has travelled to the Hon'ble Supreme
Court.
The Hon'ble Apex Court, in the background of the aforesaid
fact as also on the undisputed position, had observed that the High
Court by its judgment dated 19.02.2020 had quashed and set aside the
notices which were issued by the department in a batch of matters
including the notice dated 01.06.2019 which was issued to the
respondent. The order of the High Court had been questioned under
Article 136 of the Constitution of India. Notice was issued and the
judgment of the High Court was stayed. The respondent took recourse
to the pending proceedings before this Court by filing an interlocutory
application seeking two reliefs, i.e., (i) an order of restrain on the
assessing officer from proceeding ahead with the assessment notices;
and (ii) alternatively a restraint from proceeding ahead with the
assessment notices which were issued in pursuance of the order dated
[27]
01.12.2020, proceedings were pending before the Court and in course of
the pendency before the Hon'ble Apex Court, a fresh notice was issued
on 18.02.2021 which had been assailed by filing a writ petition being
C.W.P. No. 4834 of 2021 leading to passing of further order as noted
above. In that context, it has been observed by the Hon'ble Apex Court
that instead of pursuing the interlocutory application to its logical
conclusion, the respondent chose to institute a fresh writ petition before
the High Court, which the High Court has entertained and stayed the
notice which was issued in continuation of the earlier notice under
Section 29(2) and as such, entertaining the petition under Article 226 of
the Constitution of India overreaches the jurisdiction of the Hon'ble
Apex Court. The pendency of the earlier proceedings was evidently
brought to the notice of the High Court since it had been referred to in
the impugned order, thus, the High Court should have deferred the
matter till conclusion of the proceedings pending before the Hon'ble
Apex Court.
Therefore, the Hon'ble Apex Court was of the view that the
High Court should have dismissed the writ petition at the threshold and
relegated the respondent to the pursuit of such rights and remedies as
are available in the earlier proceedings which were pending before the
Hon'ble Apex Court.
24. However, in the case in hand, it is the case of the respondent no.6/7 that
the S.L.P. has been filed on 22.06.2022. On the earlier occasion, when
the respondent no.1 had preferred the S.L.P., even though time was
sought on the ground about pendency of the S.L.P. before the Hon'ble
Apex Court but when the matter was taken up before the vacation
[28]
Bench of the Hon'ble Apex Court, a request was made by the
respondent no.1-State of Jharkhand, to post this matter after reopening
of the Hon'ble Apex Court, i.e., after summer vacation. The judgment
upon which the reliance has been placed, is not merely of filing of
S.L.P. rather the order of the High Court was stayed in that case and in
that circumstances, such proposition has been laid down. As such,
according to the considered view of this Court, on the given facts of the
case, the aforesaid judgment is not applicable herein.
25. It requires to refer the settled position of law that there is no universal
application of the judgment passed by the Hon'ble Apex Court rather
the judgment is to be applied depending upon the factual aspect as has
been held by the Hon'ble Apex Court in Dr. Subramanian Swamy Vs.
State of Tamil Nadu and Others, (2014) 5 SCC 75 at paragraph 47
which as under :-
―47. It is a settled legal proposition that the ratio of any decision must be
understood in the background of the facts of that case and the case is
only an authority for what it actually decides, and not what logically
follows from it. ―The court 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.‖‖
26. Otherwise also, even the provision of Order 41 Rule 5 of the Code of
Civil Procedure clearly stipulates that an appeal shall not operate as a
stay of proceedings under a decree or order appealed from except so far
as the Appellate Court may order, nor shall execution of a decree be
stayed by reason only of an appeal having been preferred from the
decree; but the Appellate Court may for sufficient cause order stay of
execution of such decree.
[29]
Thus, it is evident that the principle laid down under the Civil
Procedure Code is that merely filing of an appeal does not ipso facto
amount stay of the proceeding applying the aforesaid principle. The
aforesaid principle has been dealt with by the Hon'ble Apex Court in
Mulraj vs. Murti Raghonathji Mahaaraj, AIR 1967 Supreme Court
1386. The Hon'ble Apex Court has observed at paragraphs -9 & 10 as
under:
"9. It is argued that this view would introduce uncertainty inasmuch as
proceedings may go on and it may take sometime -- whether long or short
-- for the stay order to reach the court. There is in our opinion no question
of uncertainty, even if we hold that the stay order must come to the
knowledge of the court to which it is addressed before it takes effect. The
court may receive knowledge either on receipt of an order of stay from the
Court that passed it or through one party or the other supported by an
affidavit or in any other way. There is in our opinion no uncertainty by
reason of the fact that the court to which the stay order is addressed must
have knowledge of it before it takes effect for it can always be proved that
the court to which the stay order was addressed had knowledge of it and
that is not a matter which should really create any difficulty or
uncertainty. Once it is clear that a stay order is in the nature of a
prohibitory order, knowledge of it by the court which is prohibited is
essential before the court is deprived of the power to carry on the
proceedings. As was pointed out in Bassesswari Chowdhurany
case [(1896-97) 1 CWN 226] ―the appellate court has nothing to do with
the execution of the decree; the execution proceeds under the direction of
the court which made the decree and it has full authority to execute it. An
order of stay does not undo anything which has been done; its utmost
affect is to stop further action in the direction of execution, but it would
only have that effect when it reached the court or person whose duty it was
to obey it‖.
10. As we have already indicated, an order of stay is as much a
prohibitory order as an injunction order and unless the court to which it is
addressed has knowledge of it, it cannot deprive that court of the
jurisdiction to proceed with the execution before it. But there is one
difference between an order of injunction and an order of stay arising out
of the fact that an injunction order is usually passed against a party while
a stay order is addressed to the court. As the stay order is addressed to the
[30]
court as soon as the court has knowledge of it, it must stay its hand; if it
does not do so, it acts illegally. Therefore, in the case of a stay order as
opposed to an order of injunction, as soon as the court has knowledge of
it, it must stay its hand and further proceedings are illegal; but so long as
the court has no knowledge of the stay order it does not lose the
jurisdiction to deal with the execution which it has under the Code of Civil
Procedure.‖
27. The provisions of C.P.C. may not be applicable sensu stricto in a
proceeding under Article 226 of the Constitution of India but if the
principle would be taken into consideration, merely filing of an appeal
cannot ipso facto lead to stay of the proceeding but in the matter of such
a public interest wherein apprehension has been raised on behalf of the
E.D. of tampering of the evidence, non-appearance of the officer
concerned for interrogation even in spite of repeated notices raising
apprehension of destroying the evidence, time is of paramount
importance.
28. The pendency of the S.L.P. in the given facts of the case as per the
discussion made as above for a period of three weeks or awaiting
outcome of the S.L.P., according to our considered view, cannot be said
to be justified ground, more particularly, taking into consideration the
fact that under para-10 of the order passed by the Hon'ble Apex Court
on 24.05.2022, this Court has been directed to decide the issue of
maintainability on the first date of listing and thereafter, to proceed in
accordance with law, meaning thereby, there is a mandate of the
Hon'ble Apex Court to proceed in accordance with law immediately
after deciding the issue of maintainability which is binding upon this
Court, as also when the matter at behest of State of Jharkhand
challenging the same order before the Apex Court, was taken by the
[31]
Hon'ble Apex Court as on 17.06.2022, on request of Mr. Mukul
Rohatagi, learned senior counsel, the matter was adjourned and was
directed to be listed after summer vacation before the appropriate
Bench. Therefore, now it cannot be allowed on behalf of the respondent
no.6/7 to take the plea of pendency of the S.L.P. considering the
submission put forth by Mrs. Meenakshi Arora, learned senior counsel
that there is no conflict of interest in between the respondent no.6/7 and
respondent no.1 in both the writ petitions.
29. This Court, on the basis of the discussion made hereinabove, is of the
view that filing of the S.L.P. on 22.06.2022 cannot be said to be a bona
fide approach having approached the Hon'ble Apex Court just one day
before the hearing of the instant writ petitions, whereas the State of
Jharkhand filed the same earlier and matter was heard also. It appears
that filing of S.L.P. one by one is being utilized as a tool to somehow
delay and ultimately derail the issue of public importance.
The concerned respondent was conscious of the order passed by
this Court on the issue of maintainability having participated in the
proceeding but it appears that he was waiting for the outcome of the
S.L.P. filed by the State of Jharkhand and when no stay could be
obtained then he also filed S.L.P. just to somehow get adjournment. It is
also noted at the cost of repetition that his counsel appeared and
participated on the issue of maintainability but without filing any
vakalatnama. Now he filed vakalatnama alongwith the interlocutory
petitions asking for adjournment and also for supply of copies of
supplementary affidavits filed on behalf of the petitioner.
[32]
Accordingly, the ground no.-I is answered against the applicant.
Ground-II:
30. Second ground pertains to non-service of the supplementary affidavits
in W.P.(PIL) No. 4290 of 2021, filed on behalf of the petitioner.
Admittedly the respondent no.6 to W.P.(PIL) No. 4290 of 2021
was being represented through the counsel on each and every date as is
evident from the reference of his name in earlier orders quoted and
referred above, however, surprisingly without any vakalatnama having
been filed though a vakalatnama was filed in W.P.(PIL) No. 727 of
2022 on 04.05.2022. Surprisingly in W.P.(PIL) No. 4290 of 2021, a
vakalatnama has only been filed on 22.06.2022, i.e., just one day before
the date of hearing. The reason, according to our view is obvious that
only for making a ground for adjournment, intentionally vakalatnama
in W.P.(PIL) No. 4290 of 2021 has not been filed earlier even though
there was due appearance of the concerned respondent through his
counsel.
31. Mr. Amritansh Vats, who, on each and every occasion had put his
appearance in the proceeding of W.P.(PIL) No. 4290 of 2021 alongwith
W.P.(PIL) No. 727 of 2022 on behalf of respondent no. 6&7 but did not
file vakalatnama in W.P.(PIL) No. 4290 of 2021 rather the vakalatnama
was filed one day before the date of listing, i.e., on 22.06.2022
alongwith petitions seeking adjournment.
Aforesaid specific question, when was put to Mrs. Meenakshi
Arora, learned senior counsel appearing for the concerned respondent
assisted by Mr. Amritansh Vats, the said could not be disputed.
[33]
This Court, therefore, is not appreciating the conduct of the
concerned counsel rather is of the view that only for the purpose of
making a ground for adjournment and playing with the Court
proceeding, such step has been taken.
This Court, has also put a question to Mrs. Meenakshi Arora,
learned senior counsel that the copy of the supplementary affidavits,
said to have not been served, then how the learned senior counsel, Mr.
Mukul Rohatagi, assisted by Mr. Amritansh Vats, learned instructing
counsel has argued the issue on maintainability at length? However, no
answer to this question was there save and except that the same was a
mistake.
32. Since the concerned counsel is a young advocate, we are not taking
further step in the matter. However, he should be more careful in future.
33. It appears to this Court from the acknowledgment receipt appended to
the supplementary affidavits that the copies of the same have not been
served upon the learned counsel for the respondent no.6/7. However,
learned counsel for the petitioner has submitted that since vakalatnama
was filed so the copy of the supplementary affidavits has not been
served.
Be that as it may, this Court directs the learned counsel for the
petitioner to serve the copy of the supplementary affidavits filed in
W.P.(PIL) No. 4290 of 2021 and the writ petition upon the respondent
no.6 in W.P.(PIL) No. 4290 of 2021, in course of the day through
physical or electronic mode and if the concerned respondent wishes to
file any response thereof, the same may be filed on or before the next
[34]
date of listing but after serving copies on the petitioner, learned counsel
of E.D. and learned Additional Solicitor General.
34. This Court, after passing the said order, was about to fix this case on
29.06.2022 but Mrs. Meenakshi Arora, learned senior counsel as also
Mr. Kapil Sibal, learned senior counsel have requested to post this
matter on 30.06.2022 for hearing on merit. Mr. Sibal had stated that he
may not be available on that day, thus, some other counsel will appear
on behalf of the State of Jharkhand.
Learned counsel for the petitioner as also the Additional
Solicitor General of India have not made any opposition to such
submission.
35. This Court further posed a question as to whether the hearing of the
cases be done in physical mode or virtual mode. Learned counsel for the
parties have consented for hearing in virtual mode.
Accordingly, let these matters be listed on 30.06.2022 to be
heard under virtual mode.
36. It is made clear, considering the order passed by the Hon'ble Apex
Court in Special Leave to Appeal (C) No. 9729-9730 of 2022, more
particularly, para-10 thereof, that there shall be no further adjournment
in the matter unless a stay order is passed by the Hon'ble Supreme
Court.
(Dr. Ravi Ranjan, C.J.)
(Sujit Narayan Prasad, J.)
Saurabh/
