BHUPEN KATAKI Vs. STATE OF ASSAM

JUDGEMENT

(1.) Whether the authority constituted u/s. 138 of the Assam Panchayati Raj Act, 1972, as amended, has power to stay the operation of an impugned order and if so, under what circumstances? These are precisely the questions we are to answer. We extract the impugned order herein below :

(2.) Mr. P. Ray, learned Government Advocate concedes that no order of stay could be passed by the State Govt. u/s. 138(2) of "the Act" without calling the records and before perusal thereof. Learned Government Advocate concedes that an order rendered before the records are called is violative of Sec. 138(2) of "the Act". Learned counsel, however, contends that the impugned order was made u/s. 138(1)(b) of the 'Act' and there is no embargo therein prohibiting the State Government to pass a stay order "without calling for the records". One of us (Lahiri, J.) expressed an opinion in passing in Md. Rustom Ali v. State of Assam, AIR 1982 Gauhati 1 :

(3.) Whenever an order is made by a statutory authority and the operation of the order is required to be suspended by the appellate or revisional authority exercising its discretionary power, the latter should not render the order as a matter of routine or as a matter of course. An order may be passed when a strong prima facie case is made out by the appellant or petitioner showing that the order impugned need be stayed on some appropriate or deserving grounds. An effective order, which is in operation, cannot be whittled down and made nugatory or suspended by the appellate or revisional authority unless reasons are set-forth in the order as to why the order is required to be suspended. We extract the provisions of Sections 138(1)(b) and 132(2) of-the Act hereinbelow.