Amichand Hirabhai Patel vs President Himmatnagar Municipality

@

V.M. Sahai, J.—We have heard Mr. K.M. Patel, learned Senior Counsel assisted by Mr. Ashish H. Shah appearing for the appellant and Mr. Prashant G. Desai, learned Senior Counsel assisted by Mr. Dipak Sanchela for the respondent No. 1 and Mr. Kashyap Pujara, learned Assistant Government Pleader appearing for respondent Nos. 2 & 3.

This Letters Patent Appeal has been filed challenging the interim order dated 11.9.2013 passed by the learned Single Judge in Special Civil Application No. 14130 of 2013 whereby the learned Single Judge while issuing notice, stayed the order under challenge in the writ petition.

Learned Senior Counsel appearing for the appellant has urged that the impugned interim order passed by the learned Single Judge results in allowing the writ petition itself without assigning any reasons. The learned Single Judge has not assigned any reasons while granting stay and hence, the said order is required to be quashed and set aside.

It is well settled that while granting interim order, the Court has to assign briefly some reason as to why the interim order has been granted. Further, by way of interim relief, final relief cannot be granted. Since the impugned order does not assign any reason, therefore, it cannot be maintained.

The Apex Court in State of Uttar Pradesh and Others Vs. Ram Sukhi Devi, wherein in paragraph 8, the Apex Court clearly held that final relief cannot be granted by way of interim relief. Paragraph 8 of the aforesaid decision is extracted below :-

"To say the least, approach of the learned Single Judge and the Division Bench is judicially unsustainable and indefensible. The final relief sought for in the writ petition has been granted as an interim measure. There was no reason indicated by learned Single Judge as to why the Government Order dated 26.10.1998 was to be ignored. Whether the writ petitioner was entitled to any relief in the writ petition has to be adjudicated at the time of final disposal of the writ petition. This Court has on numerous occasions observed that the final relief sought for should not be granted at an interim stage. The position is worsened if the interim direction has been passed with stipulation that the applicable Government Order has to be ignored. Time and again this Court has deprecated the practice of granting interim orders which practically give the principal relief sought in the petition for no better reason than that of a prima facie case has been made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. [See Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. and Others, , State of Rajasthan and Others Vs. Swaika Properties and Another, , State of U.P. and Ors. v. Visheshwar (1995) Supp (3) SCC 590, Bharatbhushan Sonaji Kshirsagar (Dr.) v. Abdul Khalik Mohd. Musa and Ors. (1995 Supp (2) SCC 593), Shiv Shankar and Others Vs. Board of Directors, U.P.S.R.T.C. and Another, and Commissioner/Secretary to Government Health and Medical Edu. Deptt. Civil Sectt., Jammu Vs. Dr Ashok Kumar Kohli, .] No basis has been indicated as to why learned Single Judge thought the course as directed was necessary to be adopted. Even it was not indicated that a prima facie case was made out though as noted above that itself is not sufficient. We, therefore, set aside the order passed by learned Single Judge as affirmed by the Division Bench without expressing any opinion on the merits of the case we have interfered primarily on the ground that the final relief has been granted at an interim stage without justifiable reasons. Since the controversy lies within a very narrow compass, we request the High Court to dispose of the matter as early as practicable preferably within six months from the date of receipt of this judgment."

It is well settled that while granting interim order, the Court has to assign briefly some reason as to why the interim order has been granted. The Apex Court in the case of ORYX Fisheries Private Limited Vs. Union of India (UOI) and Others, observed in paragraph 40 as under :-

"40. In M/s. Kranti Associates (supra), this Court after considering various judgments formulated certain principles in para 51 of the judgment which are set out below :-

(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

(b) A quasi-judicial authority must record reasons in support of its conclusions.

(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

(e) Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.

(f) Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.

(g) Reasons facilitate the process of judicial review by superior Courts.

(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.

(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants'' faith in the justice delivery system.

(j) Insistence on reason is a requirement for both judicial accountability and transparency.

(k) If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.

(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or ''rubber-stamp reasons'' is not to be equated with a valid decision making process.

(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737).

(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".

(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process".

In view of the aforesaid decisions of the Hon''ble Apex Court and considering the fact that the learned Single Judge while granting stay does not assign any reason, the impugned interim order cannot be maintained.

In the result, this Letters Patent Appeal succeeds and is allowed. The impugned interim order dated 11.9.2013 passed by the learned Single Judge in Special Civil Application No. 14130 of 2013 is set aside. The writ petition is remanded back to the learned Single Judge for consideration of stay application and/or writ petition afresh. It shall be open for the learned Single Judge to decide the writ petition itself on merits instead of deciding the question of interim relief, so that there may not be any further controversy, subject to His Lordship''s convenience.

In view of dismissal of appeal, Civil Application also stands disposed of.