Manipur High Court
Haorungbam Sulanjoy Singh vs Shri Thangjam Ibotombi Singh on 28 September, 2021
SHOUGRA Digitally
by
signed
[1]
KPAM SHOUGRAKPAM
DEVANANDA
DEVANAN SINGH IN THE HIGH COURT OF MANIPUR
DA SINGH Date: 2021.09.28
12:22:52 +01'00'
AT IMPHAL
MC(WP(C)) No. 148 of 2021
(Ref:- WP(C) No. 398 of 2021
Haorungbam Sulanjoy Singh, aged about 67 years old, S/o
(Late) H. Leiren Singh, a resident of Ayangpalli Road, Khurai
Chinganbam Leikai, P.O. Lamlong & P.S. Porompat, Imphal East
District, Manipur - 795010 at present working as President of
Imphal East District Football Association.
... Applicant/Respondent No. 4
-Versus-
1. Shri Thangjam Ibotombi Singh, aged about 64 years old, S/o
Late Th. Kamini Singh of Khurai Puthiba Leikai, P.O. Lamlong
& P.S. Porompat, Imphal East District, Manipur - 795010
representative of Youth Modern Club Haraorou, Imphal East.
... Respondent/Petitioner
2. The State of Manipur represented by the Commissioner/
Secretary (Coop), Govt. of Manipur at Babupara, P.O. & P.S.
Imphal, Imphal West District, Manipur- 795001.
3. The Registrar of Societies, Lamphelpat, P.O. & P.S. Lamphel,
Imphal West, Manipur - 795004.
4. The Deputy Registrar of Societies, Imphal East District,
Manipur.
5. Shri Lukram Irabanta Singh of Thambalkhong Lane No. 6,
Near Meitei Sanglen, P.O. & P.S. Porompat, Imphal East
District, Manipur - 795005, Returning Officer for election for
the Office bearers of the IEDFA, for the term of 2021-2025.
... Pro forma Respondents
B E F O R E
HON'BLE MR. JUSTICE KH. NOBIN SINGH
For the applicant/respondent ∷ Shri N. Jotendro, Sr. Advocate
For the respondent/petitioner ∷ Shri M. Devananda, Advocate
Ms. Tejpriya, Advocate
Date of Hearing ∷ 20-09-2021
Date of Order ∷ 28-09-2021
MC(WP(C)) No. 148 of 2021 Contd.../-
[2]
ORDER
[1] Heard Shri N. Jotendro, learned Senior Advocate appearing for
the applicant/ respondent No.4; Shri M. Devananda, learned Advocate
appearing for the respondent/ petitioner and Ms. Tejpriya, Advocate for
the State respondents.
[2] This is an application filed by the applicant/ respondent No.4
praying for vacation of the ex-parte interim order dated 30-04-2021
passed by this Court in WP(C) No. 398 of 2021. The grounds on which
the application has been filed, are inter alia that a mere inclusion of the
name of the respondent/ petitioner in the voter list as per Article 12(a)(e)
of the Constitution does not ipso facto entitle him to contest the election
for the post of president, as Article 21(2) thereof is to be taken into
account; that the petitioner's candidature has been rightly cancelled by
the Returning Officer as he is found to have served as the president of
the YMC only three years eight months and thirty days and that the
interim order passed by this Court on 30-04-2021 is liable to be vacated.
It has further been stated that in case the interim order dated 30-4-2021
is not vacated, the functioning of the Imphal East District Football
Association will remain defunct.
[3] An objection has been filed by the respondent/ petitioner
contending that the application filed by the applicant/respondent No.4 is
wholly false and misleading. It has further been stated that the rejection of
the petitioner's candidature is illegal and arbitrary for the reason that the
MC(WP(C)) No. 148 of 2021 Contd.../-
[3]
election of the petitioner to the post of president, YMC for the term 2016-
2020 has been approved as per the provisions of the Manipur Societies
Registration Act, 1989 which has not been disputed at all and therefore,
the respondent No.5 ought to have accepted the candidature of the
respondent/ petitioner. The respondent/ petitioner does not have any
grievance against the Imphal East District Football Association, although
he is aggrieved by the illegal and arbitrary action of the respondent No.5.
Since the respondent/ petitioner has served as the president of the Youth
Modern Club, Haraorou, Imphal East, he is eligible for the candidature
and the nomination for the post of president.
[4] On 03-09-2021, when the matter was taken up for consideration,
it was submitted by Shri N. Jotendro, learned Senior Advocate appearing
for the applicant/ respondent No.4 that since the application has not been
disposed of within two weeks in terms of the provisions of Article 226(3) of
the Constitution of India, the interim order granted by this Court on
30-04-2021 shall be deemed to have vacated automatically. On the other
hand, it was submitted by Shri M. Devananda, learned Advocate
appearing for the respondent/ petitioner that a copy of the application was
served in the month of May, 2021 but it was filed only on 18-08-2021 by
serving a copy of the same application and therefore, the provisions of
Article 226(3) shall have no application to the facts of the present case
and accordingly, the interim order granted on 30-04-2021 cannot be
deemed to have vacated automatically.
MC(WP(C)) No. 148 of 2021 Contd.../-
[4]
[5] In order to decide the issue involved in the application, this Court
would be required to examine the provisions of Article 226 (3) of the
Constitution of India which reads as under:
"(3) Where any party against whom an interim order, whether by
way of injunction or stay or in any other manner, is made on, or
in any proceedings relating to, a petition under clause (1),
without-
(a) furnishing to such party copies of such petition and all
documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard,
makes an application to the High Court for the vacation of such
order and furnishes a copy of such application to the party in
whose favour such order has been made or the counsel of such
party, the High Court shall dispose of the application within a
period of two weeks from the date on which it is received or from
the date on which the copy of such application is so furnished,
whichever is later or where the High Court is closed on the last
day of that period, before the expiry of the next day afterwards
on which the High Courts is open; and if the application is not so
disposed of, the interim order shall, on the expiry of that period,
or, as the case may be, the expiry of the said next day, stand
vacated."
[6] As regards the interpretation of the provisions of Article 226(3)
of the Constitution of India, this Court had rendered some decisions, one
of which being the order dated 13-06-2018 passed in MC[WP(C)] No.116
of 2018 (Ref: WP(C) No.295 of 2018], the relevant paragraphs of which
read as under:
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[5]
"[4] Shri R.K. Nokulsana, learned Senior Advocate appearing
for the applicant/ respondent No.5 submits that the instant
application was filed on 03.05.2018 and since the same had
not been disposed of within 2(two) weeks as prescribed in
Article 226 (3) of the Constitution of India, the said interim
order dated 10.04.2018 had stood vacated and therefore,
this Court was required to pass only a formal order in that
regard. On the other hand, Shri N. Ibotombi, learned Senior
Advocate appearing for the respondent No.1/ petitioner has
submitted that after the said interim order dated 10.04.2018
having been passed by this Court, the said writ petition was
listed on 09.05.2018 when this Court, while granting time to
the counsel appearing for the State respondents for filing
counter, directed that the interim order granted earlier should
continue; that on 30.05.2018 when the aforesaid writ petition
along with the instant application being MC(WP(C)) No.116 of
2018 was listed again, this Court passed an order to the
effect that the matter be listed on 04.06.2018 for considering
the same and interim order granted earlier should
continue and that the contention of the learned counsel
appearing for the applicant/ respondent No.5 is not
sustainable in law. Shri S. Rupachandra, the learned
Additional Advocate General appearing for the State
respondents has submitted that no interim order ought not to
be allowed to be continued nor was any interim order
required to be passed in view of the fact that pursuant to a
requisition submitted recently, the Deputy Commissioner
Churachandpur had not issued any notice as regards the
meeting to be held for consideration of no confidence motion.
Supporting the contention of the learned counsel appearing
for the applicant/ respondent No.5, he has placed reliance on
the decision rendered by the High Court of Gujarat in District
Development Officer Vs. Maniben Virabhai, AIR 2000 GUJ
255 as well as that of the Gauhati High Court in R.D
MC(WP(C)) No. 148 of 2021 Contd.../-
[6]
Srivastava Vs. Suren Panging, 2003 (1) GLT 346. In
District Development Officer case, the question involved was
of correct interpretation of clause (3) of Article 226 of the
Constitution, as substituted by the Constitution (Amendment)
Act, 1978. In view of the opinion expressed by the then
Judge H.L. Gokhale relying upon a decision of the Calcutta
High Court, the learned Single Judge referred the matter to
the full bench by formulating many questions of law. The
Hon'ble High Court of Gujarat answered all the questions
posed by the learned Single Judge, the relevant para of which
read as under:
"9. Sub-clause (3) of Art. 226 no doubt is a procedural
provision relating to the practice of the High Court, but it
is part of a constitutional provision and according to the
settled canons of interpretation of Constitution unless
there is ambiguity in the language, the precise words used
in the text, if are plain, they should be construed in their
ordinary sense. Here we find that sub-clause (3) speaks of
"making of an application to the High Court for vacation of
such order" and two weeks period to be reckoned "from
the date on which it is received." In our considered opinion
the use of expression "makes an application" and "the
date on which it is received" is very significant: and makes
the intention of the Parliament abundantly clear. The
learned single Judge in construing the above referred
expression in clause (3) of Art. 226 appears to have been
influenced by the fact that application for vacation of an
order, according to the practice and rules of the High
Court, is required to be filed in the Registry of the High
Court. Learned single Judge H.L. Gokhale, J. therefore
appears to be of the view that mere inaction on the part of
the Registry in not placing the application before the
assigned court should not result in vacation of stay or
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[7]
injunction as they would be an unjust consequence against
the party which had obtained ex parte order with the
control over the business of the registry and the Court.
10. In our considered opinion, where the language of
constitutional provision is plain and unambiguous, the
provision cannot be read down on consideration that if
plain meaning is assigned the consequences would be
inconvenient or unjust to a party. On the plain language of
clause (3), we do not find that the provision stating that the
ex parte order of stay or injunction would stand vacated
after a specified period of fulfillment of specified formalities
by the party aggrieved, has any unjust result against the
party who had obtained the ex parte order. The object and
intention of the Parliament behind the constitutional
amendment has to be kept good in view in construing the
provision. The Parliament has noticed large number of
cases where ex parte orders of stay or injunction are
obtained by parties without furnishing copies of the petition
and stay applications thus denying grant of opportunity to
the opposite parties of hearing and such ex parte orders
continue to remain in operation to the prejudice of the
aggrieved party for an indefinite period of time as the stay
matters do not receive consideration by the High Court
within a reasonable period of time. To protect the Interest
of such aggrieved parties suffering under ex parte orders
of stay or injunction, Art. 226 in the Constitution is
amended to incorporate clause (3) providing for automatic
vacation of ex parte order or stay, if the aggrieved party is
not heard against the ex parte order within a specific
period after it had approached the Court for the purpose in
accordance with the laid down procedure.
11. In our opinion, the expressions employed in clause (3)
"makes an application" and "when it is received" are
clearly intended to convey the meaning of filing of an
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[8]
application in accordance with the practice of the High
Court. The said expressions on their plain language
cannot be read to mean placing of an application before
the concerned Judge to whom the case, in which the ex
parte order is passed, has been assigned. All the High
Courts in India have framed their own High Court Rules
regulating their procedure. In Gujarat High Court Rules,
1993, the procedure for making applications under Art. 226
is contained in Chapter XVII. Rule 188 of the Rules states
that subject to Rules in Chapter XVII, the Rules in other
Chapter shall apply mutatis mutandis to petitions and
applications under Chapter XVII laying down procedure for
filing applications and writ petitions under Articles 226, 227
and 228. By virtue of Rule 188 in Chapter XVII, Rule 30
in Chapter IV which lays down the normal procedure of
presentation of any application is applicable to application
made under Art. 226. Rule 30 of Chapter IV lays down a
procedure stating that "all matters which are to be
instituted in the High Court shall be presented in the office
of the Registry to such person as the Registry by special
or general authorities, ordinarily between 10.30 a.m. to
4.30 p.m."
12. The expression "making of an application" and
"receiving of such application" cannot on their plain
language be construed to mean cognizance of the
application by the Judge to whom the case is assigned as
per the roster prepared by the Chief Justice. Such an
interpretation, as has been placed by Hon'ble H.L.
Gokhale, J. is one sided and favours the party which has
obtained the ex parte order. It defeats the purpose for
which Clause (3) has been inserted in the Constitution to
protect the aggrieved party from the ill effects of
continuance of ex parte order obtained against it for an
indefinite point of time.
MC(WP(C)) No. 148 of 2021 Contd.../-
[9]
13. In our considered opinion from clause (3) the intention
of Parliament Is very clear that an ex parte order of stay or
injunction obtained in proceedings under Article 226 will
have a maximum life of two weeks from the date the
application is made by the opposite party and is received
by the High Court or to the party obtaining such order. The
specified period would not commence from the date it
is actually placed before the Judge to whom the case is
assigned on the judicial side. Maxwell in a book on "The
Interpretation of Statutes" (12th Edition) has stated as
under :--
"Enactments regulating the procedure in Courts are
usually construed as imperative, even where the
observance of the formalities in question is not a
condition exacted from the party seeking the benefit of
the statute, but a duty imposed on a Court or public
officer when no general inconvenience or injustice
seems to call for a different construction."
Craies in "Statute Law" (7th Edition) contains the
following statement of law on the canon of
construction of an Act of Parliament:
"Words may be modified or varied where their import is
doubtful or obscure, but we assume the functions of
legislators when we depart from the ordinary meaning
of the precise words used. Merely because we see, or
fancy we see, an absurdity or manifest injustice from
an adherence to their literal meaning."
18. On the discussion aforesaid, we have answered all the
questions posed by the learned single Judge M.R. Calla,
J. formulated in his order. Our conclusion therefore, is that
that on plain language of clause (3) in Art. 226, an ex
parte order of injunction or stay shall stand vacated
automatically after two weeks, if the aggrieved party
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[10]
completes all the formalities of making an application to
the High Court and furnishing copy of such application
to the party in whose favour the order is made. The
period of limitation of two weeks specified under clause
(3) shall commence on the plain language of that Article
from the date the application is received by the Registry of
the Court or is furnished to the party for whose benefit it is
passed whichever is later in accordance with the Rules
and practice of the Court. In our opinion, action or inaction
on the part of the parties or Registry shall have no
consequence of undoing what the Constitution law
contemplates of automatic vacation of the order after
expiry of two weeks on the completion of required
formalities of procedure and occurrence of eventualities
mentioned in clause (3) of Art. 226."
[5] Since the issue involved herein also relates to the
applicability of the provisions of Article 226(3) of the
Constitution of India to the facts of the present case, the same
are reproduced herein below for ready reference:-
"(3) Where any party against whom an interim order,
whether by way of injunction or stay or in any other
manner, is made on, or in any proceedings relating to, a
petition under Clause (1), without -
(a) Furnishing to such party copies of such petition and all
documents in support of the plea for such interim order;
and
(b) Giving such party an opportunity of being heard,
makes an application to the High Court for the vacation of
such order and furnishes a copy of such application to the
party in whose favour such order has been made or
the counsel of such party, the High Court shall dispose of
the application within a period of two weeks from the date
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[11]
on which it is received or from the date on which the
copy of such application is so furnished, whichever is
later, or where the High Court is closed on the last day of
that period, before the expiry of the next day afterwards on
which the High Court is open; and if the application is
not so disposed of, the interim order shall, on the
expiry of that period, or, as the case may be, the expiry
of the said next day, stand vacated."
The provisions of Article 226(3) which came to be
substituted by way of amendment are plain, simple and
unambiguous and in fact, this court is of the view that the same
require no interpretation at all and to apply them, the following
conditions are required to be fulfilled:-
(a) An interim order shall be made in a proceeding
relating to a petition under Clause (1) against any party;
(b) The interim order shall be made without furnishing
a copy of the petition and documents in support thereof to
such party;
(c) The interim order shall be made without giving such a
party an opportunity of being heard;
(d) Such party against whom interim order is made,
shall make an application for vacating such interim order
with copy being furnished to the party in whose favour
interim order has been passed;
(e) The High Court shall dispose of the application
within two weeks from the date on which it is received or
from the date on which copy of such application is
furnished; and
(f) In the event of the said application being not disposed
of by the High Court, on the expiry of the said period the
interim order shall stand vacated."
[6.1] There can be no any dispute that if an application for
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[12]
vacating interim order is filed in a writ petition filed under
Clause (1) of Article 226 of the Constitution of India, after
having fulfilled the conditions mentioned hereinabove, the same
shall be disposed of by the High Court within two weeks from
the date on which it is received or from the date on which
copy of such application is furnished. This is the normal
principle prescribed in Article 226(3) of the Constitution of India
and the short question that arises for consideration by this
court is as to whether the said principle will apply to the
facts and circumstances of the present case. When the
above writ petition was listed on 10-04-2018 for motion, this
court was pleased to issue notice to the respondents with
the direction that impugned order dated 27-03-2018
should remain suspended and since Shri Vijayananda,
learned Advocate accepted notice on behalf of the respondent
Nos.1 & 2, notices were sent to the remaining respondents on
17-04-2018. The matter was directed to be listed on 18-04-
2018 on which Ms. Joan N. Kipgen, learned Advocate took
time for filing counter on behalf of the respondent Nos. 1 & 2
and the matter was directed to be listed again on 09-05-2018
with the further direction that the interim order should continue
till the next date.
[6.2] On 03-05-2018 and after having received the notice,
the applicant/ respondent No.5 filed the instant writ petition
praying for vacating/ modifying the interim order dated 10-04-
2018 along with vakalatnama. As directed on 18-04-2018,
the above writ petition was listed on 09-05-2018 when Shri S.
Vijayanand, learned Advocate again took time for filing counter
on behalf of the respondent Nos.1 & 2. Since the time was to
be granted as prayed for, the interim order was directed to be
continued till the next date i.e., 30-05-2018. It may be noted at
this juncture that no one objected to the continuance of the
interim order. When the writ petition and the instant
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[13]
application were listed on 30-05-2018, there was prayer on
behalf of the counsels appearing for the parties that the
matter be listed on 04-06-2018 for consideration and allowing
the prayer, the matter was directed to be listed on 04-06-2018
with the further direction that the interim order dated 10-04-
2018 be continued till the next date. There was no any
objection from any of the counsels appearing for the parties
including the counsel appearing for the applicant/ respondent
No.5, when this court passed the order that the interim order be
continued till the next date.
[7] On 07-06-2018 when the instant application was
considered, Shri R.K. Nokulsana, the learned Senior
Advocate appearing for the applicant/ respondent No.5
submitted that since the application was not disposed within
two weeks, the interim order dated 10-04-2018 had stood
vacated. On a query put to him by this court as to what would
be the implication of the orders dated 09-05-2018 and 30-05-
2018, he replied saying that he was not aware of the matter
being listed on 09-5-2018, as his name was not shown in the
cause lists. Assuming that he was not present on 09-05-2018
on the ground that his name was not shown in the cause list,
the fact remains that this court had passed the said order with
the direction for continuance of the interim order. He being the
counsel appearing for the applicant who had filed the
application on 03-05-2018, ought to have been careful, vigilant
and ought to have informed this court on 30-05-2018 when the
instant application was listed that the interim order had already
stood vacated automatically and instead of doing that, he did
not raise any objection to the continuance of the interim order.
[8] The learned counsels appearing for the parties have
not brought to the notice of this court any decision rendered by
the Hon'ble Supreme Court relating to interpretation of Article
226(3) of the Constitution of India except those which are
referred to hereinabove. Although the decision rendered by the
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[14]
Hon'ble Gujarat High Court is not binding on this court, it has a
persuasive value. The Hon'ble Gujarat High Court, after
analysing the various decisions as well as the interpretation of
an author, came to the conclusion that on plain language of
clause (3), an ex-parte order of injunction or stay shall stand
vacated automatically after two weeks provided the aggrieved
party has completed the formalities mentioned therein., i.e.,
para 5 hereinabove. It has been specifically observed by the
Gujarat High Court that action or inaction on the part of the
parties or the Registry shall have no consequence of undoing
what the Constitution law contemplates of automatic vacation
of the order after the expiry of two weeks on completion of
formalities. After a careful perusal of the said decision, this
court is of the view that it is a reason judgment and there is
nothing to have a contrary view and accordingly, the same is
endorsed by this court. In the present case, the application was
filed on 03-05-2018 for vacating interim order and since the
same was not listed before this court within two weeks
thereafter nor was it disposed of by this court within the said
time, the interim order dated 10-04-2018 stood vacated
automatically. In other words, since the issue involved herein is
covered by the said decision, the instant application deserves
to be allowed by this court."
[7] The short question that arises for consideration by this Court in
the instant writ petition, is as to whether the conditions (d) & (e)
mentioned above, have been fulfilled by the applicant/ respondent No.4 in
the facts and circumstances of the present case. There are two methods
of computing the period of two weeks as contemplated in Article 226 (3)
and in other words, the condition (e) mentioned above can be divided into
two parts-one, two weeks to be counted from the date on which the
application is received by the High Court and two, two weeks to be
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counted from the date on which copy of such application is furnished to
the counsel appearing for the respondent/ petitioner. It is not in dispute
that if the above conditions are fulfilled in a given case, the interim order
shall stand vacated automatically after the expiry of two weeks as
prescribed in Article 226(3) of the Constitution of India. In the present
case, the objection that has been raised by the counsel appearing for the
respondent/ petitioner is that it is not clear as to when a copy of the
application can be said to have been served upon him. According to him,
a copy of the application was, in fact, served upon him in the month of
May, 2021 but it was not filed in the High Court without any information
being given to him that the application had not been filed by the applicant.
A copy of the same application was served upon him again on 18-08-
2021 without even changing the date on which it was kept ready for filing
it. He was not aware of the fact that the application was filed on 18-08-
2021 in the High Court. Therefore, it has been submitted by him that the
period of two weeks cannot be counted from 18-08-2021 at the
convenience of the applicant only, without taking into account the fact that
a copy of the application had already been served upon him in the month
of May, 2021 itself.
[8] The contention of the learned counsel appearing for the
respondent/ petitioner appears to be correct to the extent as to how the
period of two weeks will have to be computed, when two copies of the
application have been upon him on two different dates with a gap of
about three months. But his contention will not help him at all. There is
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the other method of calculation of two weeks, by which the period of two
weeks will be computed from the date on which the application is
received by the High Court. The application was, in fact, filed on
18-08-2021 and the period of two weeks did expire on 01-09-2021 and by
the time when the application was listed on 03-09-2021 before the Court,
the period of two weeks had already expired. From the office reports
prepared by the registry, from time to time, which are available in the
case file, it cannot be ascertained as to why the application was not listed
before the Court for consideration. In this regards, the decision rendered
by the Gujarat High Court in Maniben Virabhai case (supra) which has
been endorsed by this Court, is relevant. The opinion of the Gujarat High
Court is reproduced herein below:
"In our opinion, action or inaction on the part of the parties or
Registry shall have no consequence of undoing what the
Constitution law contemplates of automatic vacation of the
order after expiry of two weeks on the completion of required
formalities of procedure and occurrence of eventualities
mentioned in clause (3) of Art. 226."
In view of the above, the action or inaction on the part of the
registry will make no difference, in the sense that after the expiry of two
weeks, whether the application is listed before the Court or not, the
interim order shall stand vacated, if it is not disposed within two weeks
by the Court. The said decision makes it very clear that the respondent/
petitioner(s) or for that matter, the counsel appearing for him/ them,
needs to be vigilant towards such application being filed by the
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applicant. In other words, the counsel appearing for the respondent/
petitioner is enjoined with a duty to be vigilant. It may be noted at this
juncture that any decision rendered by the Hon'ble Supreme Court in
this regard has not been brought to the notice of this Court by any of the
counsels appearing for the parties.
[9] For the reasons stated hereinabove, the instant application is
formally allowed for the reason that the interim order dated 30-04-2021
passed by this Court had already stood vacated on the expiry of two
weeks in terms of the provisions of Article 226(3) of the Constitution of
India. However, in order to avoid such situation in future, the registry of
this Court is directed to ensure that in the event of such application
being filed for vacation of interim order, it shall be listed before the Court
for consideration as quickly as possible, after it being registered by it.
JUDGE
FR / NFR
Victoria
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