Sh. Parkash Kumar And Others vs Rajiv Shankar And Others

Ajay Mohan Goel, J.

By way of this petition, petitioners have prayed for the following relief:-

“It is therefore, most respectfully prayed that petition may very kindly be allowed and Annexure P-8 may very kindly be quashed and set aside in

view of the submission made herein above or any other or further order which this Hon’ble Court may deems fit and proper may be passed in the

interest of justice.â€​

Grievance of the petitioners is that along with a revision petition preferred by the private respondent against order dated 26.12.2015 passed by

learned Sub Divisional Collector Amb, District Una in case No. 29/A/2015, an application for grant of stay was filed by the said private respondent in

the Court of learned Divisional Commissioner, Kangra Division at Dharamshala. This application has been allowed vide impugned order which finds

mention at page 28 of the paper book by passing the following order “stay granted till disposal of appealâ€, which is a cryptic and non speaking

order.

Learned Senior Counsel appearing for the petitioners has argued that the impugned order on the face of it is perverse and is liable to be quashed

and set aside, as the same can neither be said to be a reasoned order nor a speaking order. He has further argued that any authority, be it quasi

judicial or an administrative, while performing the duties, quasi judicial in nature, cannot pass such a cryptic order while deciding the rights of the

parties.

At this stage, learned Additional Advocate General as also learned counsel for the private respondents submit that in all probabilities initially on

19.6.2018 a short order was passed by the learned Divisional Commissioner which might have been followed by a reasoned and speaking order.

Be that at it may, in my considered view, even if that procedure or process has been followed by the learned Divisional Commissioner, then also the

same is bad in law and cannot be sustained, as an authority cannot pass two orders i.e., one non speaking order followed with a speaking order in

order to justify the non speaking order.

Besides this, it is settled law that when either a quasi judicial authority or a Court of law decides an interim application and grants interim relief in

favour of a party, then it has to be satisfied that a prima facie case exists in favour of the party, balance of convenience is also in favour of the party

and in case interim protection is not granted, then the party shall suffer irreparable loss. Said satisfaction has to be reflected in the order by way of

reasoning by referring to the material on record on the basis of which said satisfaction has been arrived at by the authority. This important aspect of

the matter has been ignored by the learned Divisional Commissioner while passing the impugned order. Simply because an authority has the power to

grant interim relief, the same does not imply that the power so conferred upon the authority has to be exercised in an arbitrary manner, as apparently

has been done in the present case.

In these circumstances, this petition is allowed and order of grant of stay till disposal of appeal passed vide Annexure P-8 is quashed and set aside.

The Divisional Commissioner, Kangra at Dharamshala is directed to decide the stay application afresh after hearing both the parties by passing a

reasoned and speaking order. Liberty is granted to learned counsel for the parties to move a proper application apprising the learned Divisional

Commissioner of the order so passed by this Court and for early hearing of the application.