Actus curiae neminem gravabit, Interim Order not vacated in Certain Circumstances- Rajasthan High Court

S.B.CIVIL WRIT PETITION NO. 1267/2009
( Anil Chitoda Vs. State of Rajasthan & ors.)

Date of Order :: 27th July 2009.

HON'BLE MR. JUSTICE DINESH MAHESHWARI

Mr.J.P.Joshi ) for the petitioner
Mr.Tarun Joshi)

Mr.K.K.Bissa for the respondents

Mr.R.S.Saluja)
Mr.S.S.Nirban) for the applicant

Reportable .....

This order is in disposal of two applications moved in this writ petition, IA No.6889/2009 and IA No.10881/2009.
In IA No.6889/2009, the applicant Ashok Kumawat seeks his impleadment in this writ petition as respondent while by the other application, IA No.10881/2009, the petitioner Anil Chitoda seeks specific order of this Court in relation to the interim order passed earlier in this petition that the same having not been specifically vacated, continues to remain in operation.
The matter being considered in relation to the said applications only, elaborate discussion on the merits of the case does not appear necessary; and a brief reference to the background facts and relevant aspects would suffice.
The petitioner is said to have been elected as Sarpanch, Gram Panchayat Bhuwana, Panchayat Samiti Badgaon in the month of January 2005. According to the petition averments, the petitioner came to know about an order dated 09.02.2009 (Annex.1) as issued by the Government in its Rural Development and Panchayati Raj Department in exercise of the powers conferred by Section 38 of the Rajasthan Panchayati Raj Act, 1994 placing him under suspension essentially on the ground that he had caused loss to the public exchequer. According to the petitioner, he was never served with any notice either by the Chief Executive Officer of Zila Parishad or by any officer authorised by the State Government before conducting preliminary enquiry in the matter; and no preliminary enquiry had been held against him in terms of Rule 22 of the Rajasthan Panchayati Raj Rules, 1996. Thus, the petitioner contends that the order dated 09.02.2009 placing him under suspension remains arbitrary and illegal.
A reply to the show cause notice issued in this petition has been filed on behalf of the respondents contending, inter alia, that the petitioner is not entitled to challenge the suspension order by way of the writ petition and should put his case before the competent authority; that the order dated 09.02.2009 has been passed after adopting due process of law inasmuch as a detailed enquiry was conducted wherein the petitioner and the Secretary of Gram Panchayat were found guilty. A copy of the enquiry report has been placed on record as Annexure R/1. It is submitted that on 09.02.2009, the Government had issued a charge-sheet to the petitioner directing him to file his defence by 27.02.2009; and the charge-sheet was served upon the petitioner on 24.02.2009. It has been alleged in the reply that the petitioner was involved in issuance of illegal pattas causing heavy loss to the Government. As commented at the outset, merits of the case are not being finally considered in this order and, therefore, other submissions in the petition and the reply need not be dilated upon.
Relevant for the purpose of this order are the proceedings in this writ petition. This petition, as filed on 13.02.2009, came up for consideration before the Court for the first time on 17.02.2009 when show cause notices were ordered to be issued, returnable on 25.02.2009.
On 25.02.2009, while the matter was placed before the Court with the office report that the notices were awaited, the counsel for the petitioner submitted that service was complete. The Court directed the office to check and to list the matter on 02.03.2009.
On 02.03.2009, the Court found that despite service, nobody was present on behalf of the respondents; considered the submission on behalf of the petitioner that the order of suspension had been passed without conducing any enquiry as provided under Rule 22; and, while adjourning the matter to 16.03.2009, ordered that in the meanwhile, effect and operation of the questioned order dated 09.02.2009 (Annex.1) shall remain stayed.
On 16.03.2009, the matter was ordered to be listed on 20.03.2009 at the prayer of the counsel for the petitioner with nobody appearing for the respondents; and in relation to the interim order, the Court said that the same shall continue if existing. The order dated 16.03.2009 reads as under:-
''List on 20/3/09, as prayed.
Interim order, if any, to continue till then.''
Thereafter, on 20.03.2009, appearance was put on behalf of the respondents; and the matter was adjourned to 23.03.2009 while repeating the same order in relation to the interim directions as reproduced hereinabove.
Thereafter, the matter was taken up on 23.03.2009 and was adjourned to 30.03.2009 with the following order:-
''List the matter on 30.3.2009, as prayed.
Interim order passed on 2.3.2009 by this Court to continue till then.''
On 30.03.2009, while recording the presence of the counsel for the respondents only, the Court ordered the matter to be listed on 06.04.2009 and in relation to the interim order, again, the Court said,-
''Interim order, if any, to continue till then.''
The matter was, thereafter, taken up on 08.04.2009 and this time, while recording the presence of the counsel for the petitioner but none for the respondents, was ordered to be listed on 10.04.2009 while again directing that the interim order, if any, was to continue till then. The same is position regarding the order-sheet dated 10.04.2009 when, yet again, presence of the counsel for the petitioner was marked with none for the respondents and the matter was ordered to be listed on 17.04.2009 with the same order in relation to the interim relief that the interim order, if any, would continue till then.
The record shows that the matter did not reach for consideration on 17.04.2009 and the office fixed it on 20.04.2009. However, it did not reach on 20.04.2009 either and the office fixed the next date as 29.04.2009. In the meantime, the application for impleadment (IA No.6889/2009) came to be moved on 28.04.2009 that was dealt with by the office.
The matter was listed before the Court on 29.04.2009 but it did not reach again; and the office fixed the next date as 15.05.2009. On this date, again, the matter did not reach and the office fixed the next date as 15.07.2009.

On 15.07.2009, though the matter, again, did not reach for consideration on regular board, however, the counsel for the petitioner made a mention stating urgency. The matter was ordered to be listed for admission on 17.07.2009 after noticing that the application (IA No.6889/2009) had been moved in the matter but the name of the counsel for the applicant had not been shown; and the office was directed to show such name on the next listing. On 17.07.2009, the matter again did not reach for consideration on regular board and on the request, was ordered to be placed on 20.07.2009. On 20.07.2009, the matter did not reach again and office gave the next date as 24.07.2009.
In the meantime, on 20.07.2009, the petitioner moved the application (IA No.10881/2009) with the submissions that the Vikas Adhikari, Panchayat Samiti had passed an order on the advice of the counsel that the interim order having come to an end, the petitioner had no right to continue as Sarpanch; and was not complying with the interim order despite requests. The petitioner has prayed in the application that the additional facts may be taken on record and has sought the order to the effect that the interim order dated 02.03.2009 having not been vacated, continues to remain in operation and the respondents are under obligation to comply with the same.

The learned counsel appearing for the petitioner, for the respondent, and for the applicant were heard in relation to the applications aforesaid on 24.07.2009.
IA NO.6889/2009

So far IA No.6889/2009 is concerned, this Court is unable to find even a remote reason to grant the same. The applicant submits that after placing the petitioner under suspension, himself, being the Up-Sarpanch, was handed over the charge of the office of Sarpanch but on account of stay granted in this petition, he was not being permitted to function as Sarpanch. The applicant further submits that he is a necessary party to the proceedings as he alone could point out the illegalities committed by the petitioner and could show the fact that the land allotted by the petitioner was not available for allotment. It is also submitted that in case the petition succeeds, the applicant, who had been made in-charge of the office of Sarpanch, would be divested of such a charge. On these submissions, the applicant prays that he be ordered to be impleaded as party respondent in this petition.
In relation to the issues involved in this writ petition and its subject matter, intervention by the applicant in any manner cannot be acceded to. It had been the petitioner who got elected as Sarpanch and who has been put under suspension by the Government. Whether the action of the Government placing him under suspension is to be countenanced or not, is a matter squarely and solely between the petitioner and the Government. On the suggestion that he could point out the illegalities committed by the petitioner, the capacity of the applicant does not turn out to be more than that of a witness, if at all, he has to have any say in the enquiry against the petitioner. On such submissions, however, there is no reason that he be permitted to intervene in the matter involving the petitioner and the Government.
So far the aspect relating to the charge is concerned, such a charge, if at all available to the applicant, would be per default and not per popular mandate. The applicant, even if chosen to be the person to whom the charge of the office of the Sarpanch would be handed over, cannot claim a vested right to the office of the Sarpach nor a direct lis with the petitioner nor, looking to the subject matter, could he be considered a person legally interested in the result of this petition.
The presence of the applicant neither appears necessary for determination of any of the questions involved in the matter nor could he be said to be a legally affected party in this petition.
The application (IA No.6889/2009) is required to be, and is, hereby rejected.
IA NO.10881/2009

The question posed in IA No.10881/2009 has become a matter of recurrence in the recent past; and it appears apposite to state the views of this Court explicit.
A perusal of the record of proceedings of this writ petition makes it absolutely clear that on 02.03.2009, the interim order came to be passed only after notice and when the respondents failed to appear despite notice. There is nothing in the initial order dated 02.03.2009 indicating if the interim order was intended to be limited for a particular period. Even when the next order-sheet dated 16.03.2009 had been to the effect that the interim order, if any, was to continue until the next date, the fact cannot be lost sight of that nobody was present for the respondents on that date either. There is nothing on record to suggest that despite nobody appearing for the respondents, the Court intended to limit the life of the interim order to a particular date.
On the subsequent dates i.e., on 20.03.2009, on 23.03.2009, on 30.03.2009, on 08.04.2009, and on 10.04.2009, the petition was simply adjourned to another date and the interim order was directed to be continued until the next date. Except the order-sheet dated 23.03.2009, the other order-sheets i.e., dated 16.03.2009, 20.03.2009, 30.03.2009, 08.04.2009 and 10.04.2009 had been to the effect that the matter was adjourned with the observation that interim order, if any, was to continue until the next date.
The ground realities cannot be ignored that with the boards of the Courts being heavy, very often it does happen that some of the matters do not reach for consideration in the regular Court hours and in the given circumstances, such ‘not-reached’ matters are ordered to be listed on another date, if mentioned about, and if mentioning is at all entertained by the Bench concerned. The fact that in such eventualities and circumstances, the Court has not heard the matter on merits before deciding whether to continue or to vacate the interim order is amply demonstrated by the expression used in several of the order-sheets aforesaid that the interim order would continue, 'if' existing. It is obvious that for all practical purposes, every such order had only been of placing the matter to other date without the Court having the occasion to apply itself to the record of the case so as to pass a considered order.
The question is as to whether the interim order could be treated as vacated or lapsed on any of the subsequent dates when the matter did not reach i.e., on 17.04.2009, on 20.04.2009, on 29.04.2009 and on 15.05.2009? Keeping in view the ground realities, the answer, in the opinion of this Court, cannot be in the affirmative.
In such matters and in relation to such interim orders, where the indications are clear to the effect that the Court had not considered the matter on merits on the given dates, and never intended the interim order to come to end with efflux of time or with the end of a particular date, it would be rather extravagant to suggest that for mere use of expression ‘until then’, the Court intended the interim order to remain alive only until the next given date or that the Court had passed a considered order that the interim order would come to an end with such next date unless specifically extended irrespective whether the matter would be considered on the given date or not. In such kind of matters, in the opinion of this Court, even if the interim order had been granted or extended by the Court until the next date, in the event of the matter not reaching for consideration on the given date, the interim order cannot be treated as vacated.
Though the learned counsel appearing for the respondents has referred to the decision of the Hon'ble Supreme Court in the case of Ashok Kumar and Others Vs. State of Haryana and another: (2007) 3 SCC 470 to suggest that unless specifically extended, an interim order for a limited period cannot be considered continuing in operation but the significant features of the said case had been that therein, the respondents wanted to take advantage of the interim order so as to save the land acquisition proceedings wherefor the requisite declaration under Section 6 of the Land Acquisition Act, 1894 had not been issued within limitation; and the Hon’ble Apex Court did not countenance their suggestion about currency of interim order for want of express order vacating the same after finding from the record of proceedings that the matter was definitely considered by the original Court on 28.07.1998 and was adjourned to 09.09.1998 without extending the injunction order; and even on subsequent dates, the order of injunction was not extended. The question being considered herein is essentially in relation to the matters that do not come up before the Court for any reason including the reason that they do not reach on the given day. The observations of the Hon'ble Supreme Court in the said decision are not to the effect that even when the matter has not actually been taken up and dealt with by the Court, the interim order could yet be treated as vacated.
It was pointed out by the Hon’ble Supreme Court in the case of Jang Singh Vs. Brij Lal and others: AIR 1966 SC 1631 in no uncertain terms that an act of the Court shall prejudice no man remains the highest principle for the guidance of the Court in the matters of administration of justice. The Hon’ble Court said,-
‘’There is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim: ‘’Actus curiae neminem gravabit’’.

In A Selection of Legal Maxims by Herbert Broom (10th Edition at page 73), in relation to the said fundamental maxim that actus curiae neminem gravabit, it is stated with reference to the decided cases that,-
‘’This maxim is founded upon justice and good sense; and affords a safe and certain guide for the administration of the law. In virtue of it, where a case stands over for argument on account of the multiplicity of business in the Court, or for judgment from the intricacy of the question, the party ought not to be prejudiced by that delay, but should be allowed to enter up his judgment retrospectively to meet the justice of the case….’’

Thus, the principle has always been recognised that where a case is not considered because of multiplicity of business of the Court, the party ought not to be prejudiced by that delay. When an act of the Court can prejudice no man, ditto would be for an omission. In keeping with the principles aforesaid, this Court is of considered opinion that if the matter has not been taken up for consideration on a given date, the litigant cannot be left to suffer for such a reason over which he has no control whatsoever. The reason or causes for such an eventuality could be any or many; and usually they are of heavy load of work with the Courts but then, again, a litigant cannot be made to suffer for these reasons.
The phenomenon that several of the matters, though on board but do not reach for consideration before the Bench concerned on the given day, is neither unknown nor such ground realities could be ignored. The applications in this petition itself were taken up for hearing on 24th inst. upon mention having being made as the matter, listed at Serial No. 223, was otherwise not reaching in the regular Court hours. Earlier part of the record also indicates that though listed several times before different Benches, this petition did not reach.
It has been noticed that in these kind of matters, in the closing hours of the Court business, several of the requests come flooding in only for the purpose that the interim order be extended. This unnecessarily ritual is otherwise serving no purpose and rather keeps everybody on tenterhooks, be it the petitioners, or be it the respondents. In these kind of matters, in the opinion of this Court, for an event that the matter has simply not reached and there is no other circumstance or factor indicating to the contrary and no other statutory provision operating against currency, the interim order cannot be deemed to have vacated.
This Court would hasten to clarify that there could be the circumstances or factors indicating contrary to such usual currency of the interim order like the application under Article 226 (3) of the Constitution of India wherein, per the force of the constitutional provisions, the interim order stands vacated if the application is not disposed of within the given period; and there could also be the cases where the conduct of the petitioner would show his avoiding the matter and where the Court might not be inclined to let the interim order operate unless extended; and there could be other reasons wherefor usual currency of the interim order might not be countenanced but it cannot be assumed as a matter of course nor could be applied indiscriminately to the extent that despite there being no contrary reason, in every case the interim order must be taken as vacated if not extended irrespective whether the case has been taken up on a given date or not.
It may be observed that apart from not reaching of the matter for consideration in the regular Court time, there could be several factors and reasons wherefor a matter might not come up for consideration before the Court. The events and instances are not unknown that suddenly a given day is declared a holiday or the Court remains closed for any reason or circumstance. There are various other reasons and factors wherefor even on the given working day a matter does not appear on the board or is not taken up for consideration by the Court for a fault, mistake, reason, or circumstance that could be attributed anywhere but the litigant. There appears no necessity to dilate on all such factors and all such circumstances but this Court is clearly of opinion that no such factor or circumstance could region over and above the interest of justice.
Even when examined from a technical angle, the result is the same. When a matter is ordered to be posted another day, usually the Court would use the expression ‘put up on’ or ‘list on’ or ‘stand over to’ etc. Any such direction is specifically meant to convey that the matter is to be brought before the Court on the stipulated date. Mere printing of the matter on the cause-list cannot be considered meeting with all the requirements of such directions unless the matter is specifically called out and placed before the Court; as is the usual practice in this Court that the Court Master would call out the matters one by one with serial number and shall display such serial number on the electronic board meant for the purpose. When a matter has not reached, and has not been called out at all, it cannot be said that the matter has been placed before the Court. In the context, the ‘next date’, for the purpose of the interim order could only be next effective date of hearing when the matter is in fact taken up and considered by the Court. Even if the interim order had been extended on the last date until next date while directing the matter to be placed before the Court on such next date, unless actually called out, the matter cannot be said to be have been placed before the Court. The requirement of the order of the last date in such a case would be met only when the matter would in fact be placed before the Court for consideration and not before. Until that happens, the interim order would, ordinarily, continue; subject to what has been observed above.
For the reasons aforesaid, this Court is clearly of opinion that in the present case, the interim order cannot be deemed to have been vacated on the date or dates when the matter did not reach. There is nothing on record to indicate if any Bench before the whom this petition had been listed in the past after passing of the interim order, had considered the matter on merits, whether in relation to the issue involved in the petition or even in relation to the prayer made in the stay application and thereafter, had come to a conclusion that the interim order was not to be extended
However, it appears that the learned counsel for the respondents, while informing the respondents of the proceedings in the matter, chose to state in the communication dated 13.05.2009 his opinion at the postscript that there was no order continuing the interim order. This Court would not like to make much comment on such an opinion for the same having been stated before passing of this order; but the proposition of the learned counsel for the respondents about the said interim order having come to an end cannot be accepted.
It is, of course, to be made clear that in this petition only a show cause notice has been issued and the petition is to be heard for admission again. No observation herein shall have any bearing or relevance for the purpose of consideration of case on the merits. However, looking to the overall circumstances of the case and the nature of dispute; in order to put the record straight; and in the interest of justice, it is considered necessary that the interim order as passed in this case be extended until further orders while placing the petition for admission. Ordered accordingly.
The application (IA No.10881/2009) stands disposed of.
List this matter for admission on 12.08.2009.

(DINESH MAHESHWARI), J.

MK