Apex Court Dictum of automatic vacation of stay in Asia Resurfacing case not applicable in all facts & circumstances

Asian Resurfacing of Road Agency P. Ltd. Vs Central Bureau of Investigation (Supreme Court of India)

The Apex Court in the historic case of Asian Resurfacing of Road Agency Private Limited and Another v. Central Bureau of Investigation (2018) 16 SCC 299 had ruled that in all civil & criminal cases stay granted by a court shall automatically expire at the end of 6 months from the date of the order. This was ordered so to remedy the long inordinate delay in disposal of cases in the lower courts due to grant of stay by the higher court.

It would be trite to refer to the operating para of the said judgment which reads as under:

“36. In view of the above, situation of proceedings remaining pending for long on account of stay needs to be remedied. Remedy is required not only for corruption cases but for all civil and criminal cases where on account of stay, civil and criminal proceedings are held up. At times, proceedings are adjourned sine die on account of stay. Even after stay is vacated, intimation is not received and proceedings are not taken up. In an attempt to remedy this situation, we consider it appropriate to direct that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order such stay is extended. In cases where stay is granted in future, the same will end on expiry of six months from the date of such order unless similar extension is granted by a speaking order. The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalised. The trial court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence unless order of extension of stay is produced.”

The said judgment was passed in the peculiar facts and circumstances of the case and displayed anguish of the Court against the undue delay in disposal of the cases resulting in delay/denial of justice. The Court directed universal application of the said judgment to both criminal & civil cases. The said judgment was not welcome by the legal fraternity and widespread dissent was expressed in legal circles as to the application of the said judgment and the problems arising out of vacation of stay.

MA NO. 706 OF 2022 & 1577 OF 2020 were moved in the said case of Asian Resurfacing of Road Agency Private Limited and Another v. Central Bureau of Investigation seeking  clarification of the said order in as much as the said case should not apply to different facts of the applicant’s case. In the case of the applicant to the MA, the applicant was writ petitioner before the High Court. LPA was filed before a division bench of the High Court against the order of the Single Judge. The Division Bench stayed the operation of the order passed by the Single Judge. Clarification to the applicability of the judgment in Asian Resurfacing had been sought in the said MA. A bench comprising of Justice K.M. Joseph & Hrishikesh Roy on April 25, 2022 categorically held that the direction issued in Asian Resurfacing  arose out of the peculiar facts of the case revolving around halting of civil/criminal trial due to grant of the stay orders. The Court observed thus:

“The result was that cases were not being taken to their logical conclusion with the speed with which they should have been done.”

The Court denied universal application of  Asian Resurfacing in all cases as the said verdict was passed in the peculiar background of that particular case. The Court held thus:

“We are afraid that the attempt of the applicant to draw inspiration from the above directions as referred to above cannot succeed in view that this Court cannot be understood as having intended to apply the principle to the fact situation which is presented in this case. Accordingly, the miscellaneous application for clarification is disposed of by clarifying that the order of stay granted by the Division Bench in the High Court cannot be treated as having no force.”

The legal position that emerges after the clarificatory order dated 25/04/2022 is that the legal sanctity of Asian Surfacing has been diluted although Asian Surfacing has not been overruled. Thus, the Apex Court Dictum of automatic vacation of stay in Asia Resurfacing case is not applicable in all facts & circumstances. Whether the dictum of Asian Surfacing is applicable with full force or not will depend on the individual facts of the case, wherein Asia Surfacing is sought to be applied.

FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER

Application for impleadment is allowed.

We have heard Ms. Sakshi Kakkar, learned counsel for the applicant, as also Mr.Vikramjeet Banerjee, learned Additional Solicitor General.

In the application for clarification, we pass the following order:

The applicant seeks clarification that the order passed by this Court in Asian Resurfacing of Road Agency Private Limited and Another v. Central Bureau of Investigation (2018) 16 SCC 299 would apply to the facts of the applicant’s case. It must be noted that the applicant is writ petitioner before the High Court. Learned Single Judge has disposed of the writ petition. The said judgment is challenged before the Division Bench in a Letter Patent Appeal. In the LPA, an interim order was passed granting stay on 06.02.2015:

“One of the contention raised is that the respondent-Engineering College remained functional for hardly 2-3 years and is lying closed since the year 2013 and all the students who were admitted in that college have been migrated to other recognized Engineering Colleges.

Let notice of motion be issued to respondent No. 1 only for 21.05.2015.

Meanwhile, operation of the order passed by the learned Single Judge shall remain stayed.

Relying upon the judgment in Asian Resurfacing of Road Agency Private Limited and Another (supra), a clarification is sought that in the fact situation projected by the applicant, the principle enunciated by this Court will apply. We must notice that the direction issued in Asian Resurfacing of Road Agency Private Limited and Another (supra) arose out of the factual and legal matrix present therein. The case revolved around the questions arising out of the pendency of civil and criminal cases, i.e., of trial being halted and the tendency towards procrastination on the strength of the orders of stay granted. The result was that cases were not being taken to their logical conclusion with the speed with which they should have been done. We may notice the following :

“36. In view of the above, situation of proceedings remaining pending for long on account of stay needs to be remedied. Remedy is required not only for corruption cases but for all civil and criminal cases where on account of stay, civil and criminal proceedings are held up. At times, proceedings are adjourned sine die on account of stay. Even after stay is vacated, intimation is not received and proceedings are not taken up. In an attempt to remedy this situation, we consider it appropriate to direct that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order such stay is extended. In cases where stay is granted in future, the same will end on expiry of six months from the date of such order unless similar extension is granted by a speaking order. The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalised. The trial court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence unless order of extension of stay is produced.”

We are afraid that the attempt of the applicant to draw inspiration from the above directions as referred to above cannot succeed in view that this Court cannot be understood as having intended to apply the principle to the fact situation which is presented in this case. Accordingly, the miscellaneous application for clarification is disposed of by clarifying that the order of stay granted by the Division Bench in the High Court cannot be treated as having no force. However, we leave it open to the applicant to seek early disposal of the case.

The miscellaneous application is disposed of in terms of the signed order.