Article 226(3) of the Constitution is mandatory, emphasizing the essential nature of judicial review and the requirement for hearings before vacating interim orders.

JUDGMENT :

(Devashis Baruah, J.) :

Heard Mr. K. N. Balagopal, the learned Advocate General, Nagaland assisted by Ms. M. Kechi, the learned Additional Advocate General, Nagaland. We have also heard Mr. R. Iralu, the learned Senior counsel assisted by Mr. L. Iralu, the learned counsel appearing on behalf of the Appellants and Mr. M. K. Choudhury, the learned Senior counsel assisted by Mr. M. Sarma, the learned counsel who was appointed as Amicus Curiae by this Court vide an order dated 01.02.2024.

REFERENCE :

2. The Division Bench of this Court vide a judgment and order dated 26.06.2020 in Writ Appeal No. 3(K)/2020 deemed it appropriate that the issue as to whether Sub-Article (3) of Article 226 of the Constitution is directory or mandatory be referred to a larger Bench taking into account that the said learned Division Bench had opined that Article 226(3) of the Constitution of India is directory in nature whereas the Co-ordinate Benches of similar strength of our High Court in the cases of South East Bus Association and Others Vs. The State of Assam reported in (1981) 1 GLR 305; R. D. Srivastava Vs. Suren Panging reported in 2003 (1) GLT 346 and Thokchom Anita Devi & Others Vs. Tayenjam Herojit & Others 2012 STPL 21444 Gauhati had decided that Article 226(3) of the Constitution of India is mandatory in nature.

SUBMISSIONS MADE BY LEARNED ADVOCATE GENERAL, NAGALAND:

3. Mr. K. N. Balagopal, the learned Advocate General of the State of Nagaland submitted that the power of judicial review which is conferred upon the High Courts is an essential feature that forms a part of the basic structure of the Constitution. He therefore submitted that this power which has been conferred cannot be limited by a procedural provision as encapsulated in Article 226(3) of the Constitution. The learned Advocate General further submitted that it is a well recognized principle of law that no one can be made to suffer on account of any mistake or fault of the Court. Developing the said principle, the learned Advocate General submitted that even delay on the part of the Court in deciding the proceedings or an application filed for vacation of an interim order would be detrimental to any of the parties to the litigation, much less to the party in whose favour an interim order is passed if the provision of Article 226(3) of the Constitution is not held to be directory. He therefore submitted that when grant of a stay order is passed by a Speaking Order as a necessary corollary, a stay order once granted cannot be vacated otherwise than by a Speaking Order, more so when its extension also requires reasons to be recorded. Referring to Sub-Article (3) of Article 226 of the Constitution, the learned Advocate General submitted that the automatic vacation as mandated under Sub-Article (3) of an interim order so passed would be in violation of the principles of natural justice which is a facet of Article 14 of the Constitution. The learned Advocate General further referred to the judgment of the Constitution Bench of the Supreme Court in the case of High Court Bar Association Allahabad Vs. State of Uttar Pradesh and Others reported in (2024) 6 SCC 267, wherein the Constitution Bench of the Supreme Court categorically observed that the elementary principles of natural justice mandates that an order of vacating interim relief or modification of the interim relief is passed only after hearing all affected parties. The learned Advocate General further submitted that an order of vacating interim relief without hearing the beneficiary of the order is against the basic tenets of justice. He therefore submitted that as application of mind is an essential part of any decision making process and if an order of interim stay is vacated only on the ground of lapse of time when the litigant is not responsible for the delay, it would be in violation to the basic Rule of Law which is also an essential feature of the basic structure of the Constitution.

4. SUBMISSIONS MADE BY THE LEA