TMI Blog2020 (3) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... ty - petition allowed. - W.P.(C) 952/2017 - - - Dated:- 3-3-2020 - CHIEF JUSTICE MR. TALWANT SINGH J. Petitioner Through: Mr. Arvind Datar and Mr. Sandeep Sethi, Sr. Advocates with Mr. Ajoy Roy, Ms. Smarika Singh, Mr. Shantanu Tyagi, Mr. Anand Raja and Mr. Niraj Singh, Advocates Respondent Through: Mr.Ashim Sood, CGSC with Ms. Senu Nizar, Advocate JUDGMENT D.N. PATEL, Chief Justice (Oral) 1. This petition has been preferred with the following prayers:- (a) issue an appropriate direction, order or writ in the nature of mandamus quashing / setting aside the Impugned Rule notified by the First Respondent on 27.07.2016 as it is ultra vires the Act and the Constitution; (b) issue an appropriate direction, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts of the case that the reasons for rejection are given in paragraphs No. 2 and 4 of the counter affidavit filed by respondent No.1 in this writ petition, which is not permissible in the eyes of law. A non-speaking order cannot be converted into a speaking order by way of an affidavit. 5. It has been held by the Hon ble Supreme Court in M.S. Gill s judgment, which is reported as (1978) 1 SCC 405 as under:- 8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutionally out of bounds for any court, having regard to the mandatory embargo in Article 329(b). We should not, except in exceptional circumstances, breach the recognised, though not inflexible, boundaries of Article 226 sitting in appeal, even assuming the maintainability of such a petition. Indeed, we should have expected the High Court to have considered the basic jurisdictional issue first, and not last as it did, and avoided sallying forth into a discussion and decision on the merits, self-contradicting its own holding that it had no jurisdiction even to entertain the petition. The learned Judges observed: It is true that the submission at Serial No. 3 above in fact relates to the preliminary objection urged on behalf of Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts have been set out only to serve as a peg to hang three primary constitutional issues which we will formulate a little later. (emphasis supplied) 6. In view of the aforesaid decision, the reasons supplied in the counter affidavit are of no help to the respondents and the non-speaking order dated 05.10.2016 remains a non-speaking order, even if, the reasons have been given in the counter affidavit filed by the respondent in this writ petition. Thus, the impugned order dated 05.10.2016 deserves to be quashed and set aside. Moreover, it further appears from the facts of the case that the application in question was preferred by the petitioner on 21.10.2014 (Annexure P-5). The amendment of Rule 37 has been brought in force w.e.f. 27. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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