The power of the Trade Tax Tribunal to recall or modify stay orders in appropriate cases, and the principles of reasonableness and equity in recalling stay orders.

( 1 ) THIS writ petition is against the order dated May 26, 2003 passed by the Trade Tax Tribunal, meerut. The petitioner has sought quashing of the aforesaid order dated May 26, 2003 and also a writ of mandamus directing the respondent No. 2 not to proceed with the remand proceeding for the assessment years 1986-87 and 1987-88 under Section 21 (2) of the U. P. Trade Tax Act, 1948 till the disposal of Second Appeals Nos. 249 of 1995 and 250 of 1995. By the impugned order the Tribunal granted the adjournment sought for by the petitioner, but vacated the earlier stay order dated July 10, 1995. The brief facts for disposal of the present writ petition are as follows :

( 2 ) THE petitioner was reassessed under Section 21 of the Act. The said reassessment order was challenged in appeal before the first appellate authority. The first appellate authority set aside the reassessment order and remanded back the matter for passing fresh reassessment order after verifying the facts from the books of account, vide order dated May 29, 1995. Aggrieved against the aforesaid order the petitioner filed two appeals namely, Second Appeals Nos. 249 of 1995 and 250 of 1995 for the assessment years 1986-87 and 1987-88 respectively and obtained stay order dated July 10, 1995 from the Trade Tax Tribunal staying further proceeding consequent to the remand order passed by the first appellate authority.

( 3 ) THE aforesaid two appeals are pending since, 1995. It has been mentioned in the impugned order of the Tribunal that hearing of the appeal at the instance of the petitioner is being adjourned for one reason or the other, has been adjourned for 14 times. It appears that the tribunal being fed-up with the successive adjournments even then allowed adjournment by the impugned order and fixed hearing of the appeals on June 9, 1993. But the Tribunal vacated the earlier stay order granted in favour of the petitioner. The petitioner is aggrieved against the vacation of stay order.

( 4 ) HEARD Sri Rakesh Ranjan Agarwal, in support of the petitioner and Sri Bipin Kumar Pandey, learned Standing Counsel, for the respondents.

( 5 ) THE learned Counsel for the petitioner submits that the Tribunal has no power to vacate the stay order granted it. He placed reliance upon Section 10, Sub-section (6) and Sub-section (8) of the U. P. Trade Tax Act. A perusal of Section 10 (6) shows that the Tribunal may on the application of the appellant moved along with memo of appeal, grant stay order staying operation of the order, appealed against for recovery of the disputed amount of any tax, fees or penalty, etc. He further invited my attention to Rule 68 of the Rules framed under the aforesaid act. Rule 68 of U. P. Trade Tax Rules, 1948 provides the manner of disposal of appeal.

( 6 ) LEARNED Standing Counsel has placed reliance upon Trade Tax Tribunal Regulations, 1988. He brought to my notice Regulation 11 (iii) (d) of the said Regulations, which reads as under : regn. 11. Filing and disposal of stay and waiver application,-

(i ). . . . (ii) (iii) (a ). . . . (d) Every application for adjournment shall be submitted well in time or latest by 10. 30 a. m. before the commencement of hearing of regular cases after supplying a copy thereof to the opposite party. Such adjournment application may be disposed of then and there on such terms and conditions as may be deemed fit.

( 7 ) HE submitted two-fold arguments. Firstly, that power to pass an order includes the power to withdraw the order. Secondly, the action of the Tribunal is fully justified in view of the above regulation 11 (iii)d) of the Trade Tax Tribunal Regulations, 1988.

( 8 ) IN view of respective submissions of parties following two questions fell for determination :

(1) Whether Trade Tax Tribunal possessed power to recall, vary or modify stay order granted earlier at a subsequent stage of proceedings ? (2) Whether the impugned order can be said to be arbitrary and illegal ?

Elaborating the argument it