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Report No. 14

11. To be left to the High Courts.-

In view of the conflicting opinions expressed, it is difficult for us to make a definite recommendation on the subject. What is to be aimed at is very expeditious disposal of these applications and within the time indicated by us above, viz., six months. It may be that conditions in different States differ and that what one High Court may have found satisfactory may not work equally well in other High Courts. We would, therefore, leave it to each High Court to devise its own procedure in these matters.

We may, at this stage, deal with two matters which have been brought to our notice in regard to the procedure adopted in writ applications.

12. Taking of evidence in writ proceedings.-

In our Report on the Specific Relief Act, we recommended the repeal of section 45 of that Act as we have now, in Article 226 of the Constitution, a provision which is . of a far more comprehensive nature. We have, in that report, recommended that in order that the court may, whenever it deems it necessary, determine controverted questions of fact in disposing of writ applications, it should frame rules enabling such evidence to be led either on affidavits or viva voce. A number of High Courts have already made such rules. We invite attention in this connection to para. 97 of the report referred to above.

13. Grant of stays.-

We also invite attention to a view, widely expressed to us on behalf of State Governments, that courts grant interim stays in writ applications too readily so that a number of administrative measures of importance are held up for considerable periods. Such stays have, it is said, been granted in a number of matters which, having dragged on for a considerable time, have eventually been dismissed. The figures collected by us do indicate that, in some High Courts, an interim stay is granted in a large number of cases and, sometimes, almost as a matter of course. This is obviously very undesirable. An application for a stay in any matter is required to be supported by special circumstances. That should be so in a greater degree in the cases of an extraordinary remedy in the nature of an application under Article 226.

14. Need for circumspection.-

We are emphatically of the view that the courts should be very circumspect in dealing with applications for interim stay. We have been informed that, in some of the High Courts at any rate, it is almost an accepted rule that a stay will not be granted before the respondent is heard. There may be cases in which an immediate order of stay is unavoidable. Such cases may be dealt with by granting an immediate stay for a very short time within which the respondent could be served with a notice and be heard. In dealing with applications under Article 226, courts are bound to see, while safeguarding the rights of the citizen, that the machinery of administration is not unnecessarily impeded.

15. Stays in taxation matters.-

It has been suggested that the remedy provided by Article 226 has been availed of by assessees in taxation matters and that in many cases this has resulted in holding up of assessment and collection proceedings by orders of interim stay. Indeed, the evil was said to be so great that at one time it was suggested that Article 226 should not apply to taxation matters.

The statement set out below shows the number of writ petitions relating to Central and State taxation laws in the various High Courts during the years 1954, 1955 and 1956 and the number of petitions in which stay orders were made.

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