Ravinder Singh v. Chandigarh Housing Board & Anr.

Punjab & Haryana High Court or on deputation with the Chandigarh Administration on the date of the opening of the scheme or should have retired in last three years from the date of opening of the scheme. One Hardayal Singh Rawat filed a writ petition bearing CWP No.2375 of 2008, wherein this Court vide order dated 18.02.2008 stayed the clause pertaining to eligibility of those, who are on deputation. The relevant order reads as under: “Notice of motion. Mr. Sanjiv Sharma, Advocate, accepts notice on behalf of the respondent and seeks time to file counter affidavit. Let the counter affidavit be filed in the Registry within two/three days from today with an advance copy to the counsel for the petitioner. Rejoinder, if any, be filed within two days thereafter. Re-notify for hearing on 25.02.2008. The clause pertaining to eligibility of those who are on deputation is stayed.” The said writ petition was ultimately dismissed on

26.02.2010 and, thereafter, the present petitioner submitted a representation for consideration of his application for allotment of a flat. Since the respondents did not consider the said representation, the petitioner invoked the jurisdiction of this Court on 11.05.2010. Learned counsel for the petitioner has vehemently argued that the order of stay granted by this Court was widely published in the newspapers and because of the said stay order, the petitioner did not apply for a flat. He has submitted his representation soon after the writ petition was decided, therefore, the petitioner's representation is bound Civil Writ Petition No.8693 of 2010 3 to be accepted. He has placed reliance on the judgment of Hon'ble Supreme Court reported as Kanoria Chemicals and Industries Ltd. and others Vs. U.P.State Electricity Board and others (1997) 5 SCC 772. On behalf of the respondents, it has been pointed out that the date of opening of the Scheme was 14.01.2008 and the date of closing was fixed as 29.02.208, which was extended upto 26.03.2008. It is pointed out that after the order was passed, a public notice was published by the Board in the newspapers on 19.03.2008, wherein it was pointed out that the status of the deputationists being eligible shall be subject to the final decision of this Court. It is further pointed out that this Court has not restrained the Board from accepting the applications under the Scheme nor the Board ever refused to accept the applications of such applicants during the period the Scheme was opened. The applications of all employees, who were on deputation were accepted till the date of closing of the Scheme. The representation of the petitioner was considered and filed. It is categorically asserted that no form has been accepted from any applicant whatsoever after the closing date. A perusal of the facts pleaded shows that on 18.02.2008 this Court passed an interim order staying the clause pertaining to eligibility of those who are on deputation. There is no restraint order against the Board not to accept the applications of the deputationists. In Kanoria Chemicals and Industries Ltd. case (supra), the issue was revision of electricity rates/tariffs under Electricity (Supply) Act, 1948. Clause 7 (b) of the notification, subject matter if issued, contemplated that if any amount of the bill remains unpaid, additional charge per day shall be leviable. In the said writ petition, the High Court passed an Civil Writ Petition No.8693 of 2010 4 order of stay of the said notification, but also restrained the Electricity Board from realizing the additional amount of electricity charges and that the petitioners shall continue to pay at the old rate. Such writ petition along with other connected writ petitions challenging the said notification were dismissed by the Division Bench. Appellant before the Hon'ble Supreme Court had deposited the different of amount between pre-revised and revised electricity rates, but did not deposit the additional charges. The appellant relied upon an order passed by the High Court staying the operation of the impugned notification and also the judgment of Hon'ble Supreme Court reported as Adoni Ginning Factory Vs. Secretary, A.P.Electricity Board (1979) 4 SCC 560. Considering the aforesaid judgment, the Hon'ble Supreme Court held to the following effect: “.....We, therefore, agree with the High Court that Adoni Ginning case (supra) cannot be read as laying down the proposition that the grant of stay of a notification revising the electricity charges has the effect of relieving the consumers/petitioners of their obligation to pay late payment surcharge/interest on the amount withheld by them even when their writ petitions are dismissed ultimately. Holding otherwise would mean that even though the Electricity Board, who was the respondent in the writ petitions succeeded therein, is yet deprived of the late payment surcharge which is due to it under the tariff rules/regulations. It would be a case where the Board suffers prejudice on account of the orders of the court and for no fault of its. It succeeds in the writ petition and yet loses. The consumer files the writ petition, obtains stay of operation of the notification revising the rates and fails in his attack upon the validity of the notification and yet he is relieved of the obligation to pay the late payment surcharge for the period of stay, which he is liable to pay according to the statutory terms and conditions of supply – which terms and conditions indeed from part of the contract of supply entered into Civil Writ Petition No.8693 of 2010 5 by him with the Board. We do not think that any such unfair and inequitable proposition can be sustained in law. .....” The Court concluded as under: “..... It is equally well settled that an order of stay granted pending disposal of a writ petition/suit or other proceeding, comes to an end with the dismissal of the substantive proceeding and that it is the duty of the court in such a case to put the parties in the same position they would have been but for the interim orders of the court. Any other view would result in the act or order of the court prejudicing a party (Board in this case) for no fault of its and would also mean rewarding a writ petitioner in spite of his failure. We do not think that any such unjust consequence can be countenanced by the courts. .....” The Court also noticed the judgment of Hon'ble Supreme Court in Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association CSI Cinod Secretariat, Madras (1992) 3 SCC 1, wherein the distinction between quashing of an order and stay of operation of an order was explained. It was held that quashing of order results into restoration of the position as it stood on the date of the passing of the order which has been quashed, whereas stay of operation of an order does not, however, lead to such a result. In fact, the judgment relied upon by the petitioner does not advance the cause espoused by the petitioner. In fact, it was categorically held that an order of stay granted pending disposal of a writ petition comes to an end with the dismissal of substantive proceedings and that it is the duty of the court in such a case to put the parties in the same position they would have been but for the interim orders of the court. The necessary implication of the said observation is that with the dismissal of the writ petition challenging the eligibility condition, the parties are to the same condition, as they were Civil Writ Petition No.8693 of 2010 6 prior to the filing of the writ petition. In fact, that is what is held in Shree Chamundi Mopeds Ltd. case (supra), wherein it has been held to the following effect: “..... The said stay order of the High Court cannot have the effect of reviving the proceedings which had been disposed of by the Appellate Authority by its order dated January 7, 1991. While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. The only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending. ....” Still further, in Style (Dress Land) Vs. Union Territory, Chandigarh and another (1997) 7 SCC 89, the argument raised was that the tenants are not liable to pay interest for the delayed payments of a lease amount on account of stay granted in the writ petitions. Such argument was negated and it was held to the following effect: “15. Regarding awarding of the interest by the High Court for Civil Writ Petition No.8693 of 2010 7 the period of stay it is argued that as in Sahib Singh case no such direction was issued, the appellants could not be burdened with the liability of paying the interest and that at the rate of 18% per annum it was excessive and exorbitant. It is a settled principle of law that as and when a party applies and obtains a stay from the court of law, it is always at the risk and responsibility of the party applying. Mere passing of an order of stay cannot be presumed to be the conferment of any additional right upon the litigating party. This Court in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Assn. case (supra) held that the said portion of order by the Court means only that such order would not be operative from the date of its passing. The order would not mean that the order stayed had been wiped out from existence. The order of stay granted pending disposal of a case comes to an end with the dismissal of a substantive proceeding and it is the duty of the court in such cases to put the parties in the same position they would have been but for the interim orders of the court. Again in Kanoria Chemicals and Industries Ltd. v. U.P. SEB case (supra) the Court held that the grant of stay had not the effect of relieving the litigants of their obligation to pay late payment with interest on the amount withheld by them when the writ petition was dismissed ultimately. Holding otherwise would be against public policy and the interests of justice. In Kashyap Zip Industries v. Union of India 1993 Supp. (3) SCC 493 interest was awarded to the Revenue for the duration of stay under the Court's order, since the petitioners therein were found to have the benefit of keeping back the payment of duty under orders of the Court.

16. The High Court was, therefore, not wrong in directing the payment of interest on the amount of arrears of rent for the period when the stay order was obtained till the period the writ petitions were dismissed. ....” In view of the above, we find that the stay of the eligibility condition at one stage does not provide any right with the petitioner to apply for allotment of a flat after dismissal of the writ petition. Interim order in respect of stay of eligibility condition cannot be treated as Civil Writ Petition No.8693 of 2010 8 quashing of the eligibility condition. Consequently, we do not find any merit in the present writ petition. The same is dismissed. (HEMANT GUPTA) JUDGE

08.02.2012 Vimal (G.S.SANDHAWALIA) JUDGE