Lalu Ram vs State of H.P. and Others

P.D. Desai, C.J.—The petitioner was appointed as Kardar of Devta Jamblu by an order passed by the Deputy Commissioner, Kullu on May 7, 1981. By an order made on February 17, 1986, the Collector of Kullu removed the petitioner from the office of Kadar on the ground that he was not fit to hold the office and directed the Tehsildar of Kullu to take charge from him and to hand over the same to the Bhandari.

The petitioner preferred an appeal against the aforesaid order of removal before the Divisional Commissioner, Kangra at Dharamshala on March 14, 1986. Along with the appeal, the petitioner moved an application for the stay of operation of the order under appeal. Although the appeal was admitted for final hearing, the application for stay was rejected.

The petitioner preferred a revision application before the Financial Commissioner on April 3, 1986, against the order rejecting the application for stay. The Financial Commissioner by his order dated April 5, 1986, rejected the revision application. Hence the present writ petition.

The Court has perused the order of removal passed against the petitioner by the Collector of Kullu. The Court has also perused the memo of appeal which raises fairly arguable points on which the appellate authority will have to record a decision on merits in accordance with law after affording to the parties a reasonable opportunity of being heard. Even taking into consideration the allegations which have been held proved against the petitioner, the Court is of the view that this is not a fit and proper case in which the stay could have been legitimately refused pending the final hearing of the appeal. Refusal to grant stay may render the appeal virtually infructuous and the ultimate success, if any, thereof may prove barren. The proper course to adopt under circumstances such as those in the present case is to grant stay subject to such conditions as would maintain a just balance between the two competing claims and interests and to expedite the final hearing of the appeal. The Court is of the view, therefore, that the Divisional Commissioner failed to exercise the jurisdiction vested in him in a judicial manner and that the same has resulted in the miscarriage of justice.

True it is that an order granting or refusing stay passed in the course of a quasi-judicial or judicial proceeding is discretionary in nature as held by the Financial Comnrssioner However, it is settled law that such discretion has to be exercised judicially and with circumspection. If the exercise of discretion is unreasonable or capricious or vitiated by an unjudicial approach, it is not only within the power but also the duty of the appellate or revisional authority to interfere therewith to prevent the miscarriage of justice.

For the foregoing reasons, the writ petition is allowed. The impugned orders refusing the interim stay of the order under appeal before the Divisional Commissioner, Kangra, are quashed and set aside and the application for stay is granted subject to the following conditions:

(i) The petitioner shall not prevent any worshipper of the deity from visiting and/or performing worship in the temple at all reasonable hours during which the temple remains open;

(ii) The petitioner and the Kuthiala shall jointly maintain true and accurate accounts of the receipts and outgoings of the temple cash and of the offerings in cash or kind made before the deity or collected otherwise by the petitioner in exercise of the powers, if any, of his office as Kardar and no payment to any person shall be made or any disbursement effected except against a voucher/receipt; such accounts shall be open to inspection by the Collector or his nominee.

(iii) The appeal shall be heard and decided within six weeks of the receipt of the writ.

Rule made absolute accordingly with no order as to costs.

Dasti copy on usual terms.