1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 206 of 2011. Date of decision: 03.08.2011. Sanjay Kumar …Petitioner. Versus Kamal Singh & Another. …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioner: Mr. Ajay Kumar, Advocate. For the respondent No.1: Mr. N.K. Thakur, Advocate. For the respondent No.2: Mr. Vivek Thakur, Addl. A.G. with Mr. Rajesh Mandhotra, Dy. A.G. Deepak Gupta, J. (Oral) The grievance of the petitioner in this petition is that respondent No.2, Divisional Commissioner, Kangra at Dharamshala pre-poned the matter and granted stay to respondent No.1 (appellant before the Divisional Commissioner) without issuing notice to him. 2. Records/file of the Divisional Commissioner have been perused. On 9.7.2008 the then Divisional Commissioner Kangra took up the matter at Una in the presence of Shri N.K. 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 Bali, Advocate counsel for the appellant (respondent herein) and Shri P.C. Sharma, Advocate counsel for the present petitioner (respondent before the Appellate Court). After hearing the counsel for the parties and going through the record of the Subordinate Court, the Divisional Commissioner came to the conclusion that no ground is made out for staying the order of the Subordinate Court. He, however, called for the records of the Subordinate Court and fixed the case for arguments on 13.8.2008. 3. Thereafter the case was adjourned on one ground or the other. It appears that the case was being listed at Una and the tour of the Divisional Commissioner who is stationed at Dharamshala was being cancelled time and again, with the result that the case got unnecessarily delayed. Since the stay order had been refused in favour of the appellant before the Divisional Commissioner, he applied for early hearing of the case and prayed that the case which had been fixed for 17.6.2009 be pre-poned. It is not clear whether any order was passed or whether any notice of this application was sent to the respondent. Thereafter the matter kept getting adjourned and was not taken up. It appears that a notice was affixed on the notice board that the case would be taken up on 10.8.2009 at Una. 4. Thereafter the respondent (appellant before the Divisional Commissioner) filed an application on 6.5.2011 before 3 the Divisional Commissioner at Dharamshala. It appears that this application was filed through a new counsel at Dharamshala and the prayer made in the application reads thus: “ It is, therefore, prayed that the above noted appeal may kindly be pre-poned and it may please be fixed for an early date at Dharamshala for the disposal of appeal on merits in the interest of natural justice.” There was no prayer in this application that any stay order be passed. In the heading of the application also it was typed that application is filed for preponment of the case since it was urgent and emergent in nature. Thereafter, the following words are added in hand “and also consider stay application for today”. On 6.5.2011, the respondent No.2 Divisional Commissioner made a note on the application that office to check and report. Thereafter the following office report was made by the Naib Tehsildar (Peshi): “An application under Section 151 Cr.P.C. Has been received and found to be in order. In addition an application dated 15.7.2009 u/S 151 Cr.P.C. for preponment of case is also pending adjudication. Further an application dated 4.6.2008 for staying the operation of impugned order dated 30.5.2008 passed by D.C. Una has also not been finally disposed off and hence pending. The above applications are submitted for consideration.” 5. A perusal of this report shows that the statement made in the report that application for stay is still pending, is 4 totally incorrect because vide order dated 9.7.2008 the then Divisional Commissioner had clearly held that no ground for grant of stay was made out. 6. The Divisional commissioner passed the following order on this application on 6.5.2011 itself: “Heard the learned counsel for the appellant. Office report seen it reveals that the above Appeal has been filed against the order dated 30.05.2008 passed by the Deputy Commissioner Una in case No. 187/2008. It is argued by the Ld. Counsel for Appellant that if the impugned order dated 30.5.2008 passed by Deputy Commissioner Una is not stayed, the appellant shall suffer irreparable loss which cannot be compensated in terms of money. I have heard the ld. Counsel for the appellant and given the considerable though and I am of the view that the appellant is entitled to ad- interim injunction. Therefore, the execution operation of order passed by the Deputy Commissioner una in case No. 187/2008 dated 30.5.2008 stand stayed till further orders. Case to come up for hearing at Dharamshala on 28.5.2011.” 7. On 15.6.2011, when this matter came up for hearing before this Court, the order dated 9.7.2008 passed by the earlier Divisional Commissioner was referred to and this Court was prima facie of the opinion that neither the present case could have been transferred nor any stay could have been granted 5 without first issuing notice to the affected party i.e. present petitioner. Therefore, the explanation of the Divisional Commissioner was called for and he was asked to file his personal affidavit. The relevant portion of the order dated 15.6.2011 read as follow: “The Divisional Commissioner, Kangra took up the case on 6.5.2011 and decided the matter without issuing any notice to the present petitioner or his counsel. He not only transferred the case to Dharamshala but also granted an ad interim stay without realizing that his predecessor after hearing both the parties had rejected the stay application which order had admittedly become final. All officials exercising judicial or quasi judicial powers must be aware of the basis principles of law and the principles of natural justice. If any order was to be passed in a case where other side was represented by a counsel, I am of the prima facie view that such an order could have been passed only after giving notice to the counsel. If this practice is not followed, it will lead to anarchy in the judicial system where day in and day out, orders would be changed at the asking of one party or the other. Therefore, I am of the prima facie view that the impugned order is required to be stayed. Notice is issued to the Divisional Commissioner, Kangra who shall file his personal affidavit on or before the next date and explain why, when parties were represented by counsel, he decided the application in the absence of the other party. 6 Further proceedings before the Divisional Commissioner, Kangra are stayed.” 8. The Divisional Commissioner filed his affidavit in compliance to the aforesaid order and according to him the fact that the prayer for grant of stay order was rejected on 9.7.2008 only came to his notice when the copy of order dated 15.6.2011 passed by this Court was received by him. He has, however, given no explanation why interim order was granted without giving notice to the other side, in a matter which had been pending in the Court of Divisional Commissioner for the last more than three years. Before a stay order is granted, a judicial or quasi judicial officer is expected to go through the file. It is apparent that the Divisional Commissioner Shri Sanjay Gupta had not cared to go through the file. If he had done so, he would have seen that on the first date of hearing his predecessor had not granted stay. The Subordinate Court had appointed the present petitioner as Lamberdar and he had been functioning as such for the last more than three years. What was the sudden need of granting the stay order when the petitioner had functioned as Lamberdar for three years? There might have been a good ground for early hearing of the matter but definitely no ground was made out for grant of stay. As pointed out above, in the prayer clause there was no prayer for grant of stay and the averments regarding grant of the stay were only incorporated by hand in the heading of the application. The stay order dated 6.5.2011, whereby stay had been granted shows 7 total non-application of mind. Neither any facts have been stated nor any reason has been given, why the order of the Subordinate Court passed almost three years earlier was required to be stayed. 9. Normally, this Court would not like to pass any comments on the action of judicial authorities, but here is a case of a Senior IAS Officer exercising judicial powers against whom earlier also strictures were passed by the then Hon'ble Chief Justice of this Court in case Amar Nath versus State of H. P. & others, 2006(2) Shim. LC 343. This Court in that case was dealing with an order passed by Shri Sanjay Gupta, IAS in the capacity of Director, Consolidation of Holdings, Himachal Pradesh. The observations of the then Hon'ble Chief Justice read as follow: “The Director of Consolidation, therefore, either because of total ignorance of law on his part, or by misapplying specific and binding legal principles passed the aforesaid judgment dated 17th December, 2002 which has wholly vitiated the proceedings against the petitioner. The petitioner's objections regarding the limitation aspect with respect to the appeal filed before the Additional Director (decided by him on 29th December, 2001) was erroneously dealt with by the Director.” The Court also directed that Copy of the judgment be sent to the Chief Secretary, Government of Himachal Pradesh for 8 information and necessary action. It can be reasonably presumed that in compliance to the said directions the Chief Secretary must have at least informed Shri Sanjay Gupta about the orders of this Court. Instead of acting in a manner befitting a senior bureaucrat exercising judicial powers, his action in this case clearly shows that the earlier judgment had no impact on him and he continues to act like a feudal Maharaja not caring about the rule of law. His explanation that he passed the order without the knowledge of the earlier order shows that he while granting the stay order did not care to read the file. Further as observed above, even the stay order has been granted in total violation of the well known principles regarding the grant of stay orders. He has not given any finding that there is a prima facie case in favour of the appellant before him. He had not cared to state the facts of the case. What was the irreparable harm and injury likely to be caused ? In whose favour he has found the balance of convenience ? Nothing is stated by him. These are the basic principles of law to be applied by all judicial authorities while granting the stay orders. He also violated the principles of natural justice by granting stay in the absence of the other side despite the fact that it was represented by counsel. Before passing any order he should have issued notice to the other side. 10. A Divisional Commissioner exercises wide ranging judicial powers on the revenue sides. I am of the considered 9 opinion that litigants cannot be asked to appear before such an officer who has little knowledge of law and who despite earlier warning given has not cared to improve. The earlier judgment of this Court appears to have had no impact upon Shri Sanjay Gupta. Therefore, I am of the considered view that he should be divested of all the judicial powers. Shri Sanjay Gupta, in view of the earlier order and this order cannot be expected to work as an efficient judicial officer. He should be divested of all judicial powers. Therefore, the state is directed to ensure that some other competent official is posted in his place as Divisional Commissioner Kangra at Dharmshala within four weeks from today. 10. I am also of the considered view that this matter should not be decided by Shri Sanjay Gupta because the petitioner obviously can have no faith in him after the present order has been passed. If, some other official is posted in his place, he shall decide the matter by 30th November, 2011. In case, no new Divisional Commissioner, Kangra at Dharmashala is appointed by 15.9.2011 then the matter shall stand transferred to the Court of Divisional Commissioner, Mandi before whom the parties shall appear on 10.10.2011, who shall ensure that the matter is decided latest by 31st December, 2011. 11. In view of the aforesaid discussion, the petition is 10 allowed in the aforesaid terms and order dated 6.5.2011 is quashed. No costs. Dasti Copy. (Deepak Gupta) Judge August 3, 2011. (jai)