In the unending discussion on the nature and scope of Article 226 of the Constitution of India, 1950 (hereinafter referred to as “the Constitution”), jurists, constitutional lawyers and political scientists often give a go-by to an extremely significant clause of Article 226 that had been inserted by Section 30 of the Constitution (44th Amendment) Act, 1978, namely, clause (3) of Article 226. Article 226(3) states that where the High Court passes any order of injunction or stay against any party in a petition under Article 226 ex parte, then if the said party against whom the order is passed, makes an application to vacate “such order and furnishes a copy of such application to the party in whose favour such order has been made”, then the High Court shall dispose of the application within two weeks from the date of receipt of the application or from the date on which “the copy of such application is so furnished, whichever is later”. The clause goes on to state that if the application is not disposed of within two weeks, then on the expiry of two weeks, the said interim order so passed by the High Court shall “stand vacated”. The Statement of Objects and Reasons does not make any specific reference to Article 226 or the reason for which it was amended. However, it does mention that “the other amendments” made by the Amendment Act (that have not been specifically mentioned in the Statement) “are mainly for removing or correcting the distortions which came into the Constitution by reason of amendments enacted during the period of the internal emergency.” How the insertion of clause (3) of Article 226 helped in removing or correcting these “distortions” is an enigma. But this procedural insertion nevertheless raises an interesting question of law. The purpose of this article is to ascertain whether Article 226(3) is mandatory or directory through the views taken by various High Courts on this issue.
II. What the High Courts have held
A. The view that Article 226(3) is mandatory – Literal meaning
1.The Rajasthan High Court was perhaps the first High Court to deal with the interpretation of Article 226(3). In Gheesa Lal v. State of Rajasthan (hereinafter referred to as “Gheesa Lal”), a Single Bench of the Rajasthan High Court held:
“It is obvious that the intention of keeping the provisions for automatic vacation of such order, where no order is passed, within 2 weeks, is that the party who obtains an ex parte stay order, should not be allowed to abuse or misuse the process of the Court by proceeding in a leisurely manner.”
The Court further held that if the office of the High Court does not immediately “take steps” for listing the application for vacating the interim relief, it is for the petitioner to take “steps for getting the case listed on the very next day or within the statutory period of two weeks and having not done so, he cannot be allowed to prolong the stay order by delay on the part of the office.” Therefore, the Court eventually was of the opinion that since the “constitutional mandate admits of no exceptions”, “even without passing any order on the application, ex parte ad interim stay order would stand vacated on the expiry of 14 days i.e. two weeks from the date of filing of the application or giving of the copies whichever is later.” In other words, the Court held that the provision is mandatory.
2. The Single Bench of the Calcutta High Court in Krishan Kumar Aganvala v. RBI (hereinafter referred to as “Krishan Kumar”) relied on the aforementioned judgment of the Rajasthan High Court and was of the view that Article 226(3) was mandatory and not directory. The Court was of the view that “clause (3) has not only affirmatively enjoined the Court to dispose of the application within the period specified, but has also negatively in categorical terms provided for the consequence of non-disposal within the period.” According to the Court, when “a statutory provision not only directs a thing to be done in a specified manner or within a specified period, but at the same time provides for the inevitable consequence of non-compliance with the direction, the direction must be held to be obligatory and not merely directory.” The Court went on to compare the provisions of Order 39 Rule 3-A of the Code of Civil Procedure, 1908 with Article 226(3). Order 39 Rule 3-A provides that where an injunction has been granted ex parte, the Court shall endeavour to dispose of the application within 30 days and if it is unable to do so, it should record reasons for its inability. Since, such a provision for recording reasons is not found in Article 226(3), the Court held that the said provision is mandatory. The Court held that even if the application for vacation is not disposed of within the specified period and “the original ex parte interim order shall automatically stand vacated, nothing shall prevent the Court to grant an interim order afresh after hearing the parties, on the application for vacation or otherwise, if the Court finds sufficient grounds to make such fresh order.”
3. The Division Bench of the Kerala High Court in Raghunandanan v. RTA, (hereinafter referred to as “P. Raghunandanan”) in a short order followed the judgments delivered by the Rajasthan and Calcutta High Courts. This view was reiterated by the Coordinate Bench of the Kerala High Court in C. Babu v. Jayakumar which relied upon P. Raghunandanan.
4. The Full Bench of the Gujarat High Court in District Development Officer v. Maniben Virabhai (hereinafter referred to as “Maniben Virabhai”) also held that the provision is mandatory. According to the Court, “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.” The Court observed that:
“… object and intention of Parliament behind the constitutional amendment has to be kept good in view in construing the provision. 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.”
It is pertinent to note that this object of Parliament has been inferred by the Court. As stated above, the Statement of Objects and Reasons of the 44th Amendment Act is silent on the reason for amending Article 226. The Court was ultimately of the opinion that the views expressed by the Calcutta and Rajasthan High Courts mentioned above were “in consonance with the settled canons of interpretation.”
5. The decision of the Gujarat High Court was followed by a Single Judge Bench of the Manipur High Court in Khaipao Haokip v. G. Suanchinpau.
6. The Division Bench of the Allahabad High Court in C. Chaudhary v. Dr Bhim Rao Ambedkar University (hereinafter referred to as “R.C. Chaudhary”) apart from referring to the judgment of the Rajasthan High Court in Gheesa Lal, also following its own High Court decisions and various other Supreme Court decisions to hold that Article 226(3) is mandatory. However, while adding a caveat, the Allahabad High Court also held that a party seeking vacation of the stay order,
… is under obligation to approach the Court within reasonable time from the date of notice to it: if the stay vacation application is filed in a leisurely manner, the party cannot claim that interim order stands automatically vacated by operation of law as it would amount to giving such a party premium for its non-action within a reasonable period and the very purpose for which the provision has been enacted, would stand frustrated.
7. This aforesaid view of filing the application in a timely manner has been reiterated by the Single Bench of the Jharkhand High Court in DAV High School State of Jharkhand in which the Court opined as under:
“5. … A bare reading of the provision makes it clear that the party against whom the interim order has been passed without giving him opportunity of hearing, may make an application for vacating such order at the earliest possible point of time and not leisurely and with deliberate case at any point of time. In that case, the Court has to dispose of the application within a period of two weeks from the date on which it is received. There is thus element of urgency in the provision. It is expected of a party against whom an interim order is passed, if he so intends to make an application for vacation of the same when he appears at the first instance for bringing his application for consequential automatic vacation of the order under Article 226(3). A party cannot be allowed to take benefit of the said provision of urgent nature, at any stage of litigation. If the party against whom the interim order is passed does not object to the same on his first appearance and does not file an application for vacating the interim order/say, though files his reply to contest the case on merit, the provision of automatic vacation of interim order as envisaged in Article 226(3) shall not be available to him even if the application is not disposed of within two weeks from the date of its receipt or furnishing the copy to the other side, as the case may be.”
B. The contrary view expressed by other High Courts
1. The aforesaid views of the Rajasthan, Calcutta, Kerala, Gujarat and Allahabad High Courts about the mandatory nature of Article 226(3) did not find favour with the Single Bench of the Madras High Court that took an out-of-the-box approach in Gnanasambanthan v. Board of Governors (hereinafter referred to as “T. Gnanasambanthan”). According to the Madras High Court, none of the High Courts mentioned above considered the question “from the pedestal of the most fundamental principle of law, namely, that no one shall be prejudiced by an act of court (actus curiae neminem gravabit). An act can either be an act of omission or be an act of commission.” According to the Court, if the Registry of the Court does not list an application for vacation of interim relief, the parties cannot be faulted for the same and this act of not listing the matter would be “an act of omission”. The Court felt that the law cannot be so absurd so as to say that “if the Court is at fault, the parties shall suffer.” The Court then went onto state that if the interpretation given to Article 226(3) results in “putting one of the parties to grave injustice, without any opportunity of hearing,” the provision cannot be mandatory but directory. Relying on the Supreme Court decision in Sharif-ud-Din v. Abdul Gani Lone, the Court held,
… if the condition imposed by the provision of law to do a certain thing within a time-frame is upon an institution and the consequences of that institution not complying with the condition is to fall upon someone else who have [sic] no control over the institution which is to perform the duty, then the provision of law cannot be construed as mandatory, but only directory.
Carving out an exception to the general rules of prescription and consequence of non-compliance of a statutory provision, the Court held that only when the direction as well as the consequences of non-compliance fall upon the same person can a provision be held to be mandatory. Therefore, if the High Court under Article 226(3) fails to comply with this constitutional mandate and the consequence of non-compliance falls upon adversely on the party who has obtained interim relief, the provision has to be treated as directory. Finally the Court opined:
“Therefore, an interpretation that would put a party, who is not at fault, to disastrous consequences, for the failure of an institution or for the happening of something that is beyond his control, is wholly unjustified. If a statutory provision imposes an obligation upon one party and makes the opposite party suffer for the consequences of non-fulfilment of the obligation cast therein, such a provision cannot be said to be mandatory. Unfortunately, none of the High Courts, whose decisions are relied upon by the respondents, has taken note of this basic difference between the person, on whom, an obligation is cast and the person, on whom, the consequences are made to fall under Article 226(3). Hence, with great respect, I am unable to agree with the views expressed by the other High Courts.”
2. It is interesting to note that the learned Single Judge of the Madras High Court, V. Ramasubramanian, J. (as he then was) reiterated this view while he was a Judge of the erstwhile Andhra Pradesh High Court in Naganna v. Manmohan Singh.
3. The decision of the Madras High Court was also followed and expounded upon by a Division Bench of the Kohima Bench of the Gauhati High Court in Rukuvoto Ringa v. Meyalemla, (hereinafter referred to as “Rukuvoto”). While agreeing with the view taken by the Madras High Court in Gnanasambanthan, the Gauhati High Court contemplated the possibility of a party who seeks vacation of the interim order waiving the right to have the application disposed of within two weeks. In such a case, the Court felt that:
… if the applicant himself agrees to adjournment of the case sought by the other party, it will be deemed that he did not have any objection to the adjournment for consideration of the application for vacation of the stay order beyond 2 weeks, in which event, it would amount to acquiescence and waiver of the benefit extended under Article 226(3)….
The Court then went onto observe that Article 226(3) is “a special provision and right which is invokable only by the party who had not been furnished a copy of the petition nor given the opportunity to be heard when the stay order was passed.” According to the Court, in a writ proceeding, public authorities or the State Government are main parties to the proceeding apart from private parties; copies of the petition are generally given to the respective counsels of such public authorities when the matter is taken up for interim relief and therefore, this provision is not ordinarily applicable to such respondents. This is because, if by default, the vacation of stay order under Article 226(3) is invoked by another party to the proceeding who is not a public authority, in the event the stay order stands automatically vacated after two weeks, the public authority who may have already been heard and served in advance “will also reap the benefit” of the interim relief being vacated. The Court also noted that Article 226(3), if held to be mandatory would curtail the discretionary power available to the High Court to grant interim relief. Such an interpretation would, according to the Court, also curtail the discretionary power of judicial review of the High Court which is a part of the basic structure of the Constitution. The Court also observed that power to grant interim relief “is inherent in the High Court” and this inherent power cannot be curtailed by a “processual provision or procedural provision”. Practically speaking, the Court felt that due to the ongoing COVID-19 pandemic, many institutions including the judiciary are not functioning normally and therefore if Article 226(3) was read to be mandatory, it would lead to “great prejudice to the petitioner”. The Division Bench in Rukuvoto disagreed with the view taken by the Single Bench of the Gauhati High Court in Axis Bank Ltd. v. Anupam Acharjee (hereinafter referred to as “Axis Bank”) which had held that Article 226(3) is mandatory. The Court in Axis Bank had relied on the view taken by a previous Single Bench of the Gauhati High Court in South East Bus Assns. v. State of Assam that had in turn relied on the judgment of the Rajasthan High Court in Gheesa Lal. The Division Bench in Rukuvoto also disagreed with the views taken by two previous Division Benches of the Gauhati High Court in R.D. Srivastava v. Suren Panging and Thokchom Anita Devi v. Tayenjam Herojit (hereinafter referred to as “Thokchom”) that had held that Article 226(3) is mandatory. The Division Bench in Thokchom had relied on the view taken by the Full Bench of the Gujarat High Court in Maniben Virabhai and had specifically rejected the contention based on the maxim actus curiae neminem gravabit that had been relied upon by the Madras High Court in T. Gnanasambanthan. In light of this disagreement, the Division Bench in Rukuvoto deemed it appropriate that the issue “be referred to a larger Bench” to decide whether Article 226(3) is mandatory or directory. The reference is awaiting adjudication.
III. Concluding comments
In the author’s view, the law laid down by the Madras High Court in T. Gnanasambanthan and the Gauhati High Court in Rukuvoto is correct not only for the reasons mentioned in the judgments but also because of the nature of the provision the Courts were dealing with. The provision is not merely a regular statutory provision but it is a constitutional provision. The five-Judge Bench of the Supreme Court in State (NCT of Delhi) v. Union of India has observed that “the literal rule is not to be the primary guiding factor in interpreting a constitutional provision, especially if the resultant outcome would not serve the fructification of the rights and values expressed in the Constitution. In this scenario, the theory of purposive interpretation has gained importance where the courts shall interpret the Constitution in a purposive manner so as to give effect to its true intention.” “One of the cardinal principles of constitutional adjudication is that the mode of interpretation ought to be the one that is purposive and conducive to ensure that the Constitution endures for ages to come.”
In his concurring opinion in Supreme Court Advocates-on-Record Assn. v. Union of India, Kuldip Singh, J. (as he then was) observed:
“… Constitutional law cannot be static if it is to meet the needs of men. New situations continually arise. Changes in conditions may require a new look at the existing legal concepts. It is not enough merely to interpret the constitutional text. It must be interpreted so as to advance the policy and purpose underlying its provisions. A purposeful meaning, which may have become necessary by passage of time and process of experience, has to be given.”
The Madras and Gauhati High Courts have through their judgments done exactly this by giving an otherwise mundane provision a purposive interpretation to advance the ever evolving cause of justice.
† Practicing advocate at Bombay High Court and NCLT, Mumbai. Author can be contacted on Twitter @DormaanD.
226. Power of High Courts to issue certain writs.—(1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(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 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.
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32.
Statement of Objects and Reasons of the Constitution (44th Amendment) Act, 1978, <https://legislative.gov.in/constitution-forty-fourth-amendment> (last visited on 25-06-2021).
 Clause 11 of the Statement of Objects and Reasons.
 3-A. Court to dispose of application for injunction within thirty days.— Where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability.
 (1981) 1 GLR 305.
 (2003) 1 GLT 346.
 2012 STPL 21444 Gauhati.
 2012 STPL 21444 Gauhati.