Implied power to recall interim stay upheld where adjournments justified withdrawal of protection

An appellate authority with implied power to grant interim stay also has incidental power to recall, vary or modify that stay in appropriate cases, even without an express recall provision. The court accepted that the Trade Tax Tribunal could withdraw interim protection where repeated adjournments justified such action, provided the response was reasonable and not arbitrary. It further held that an adjournment order made on terms under the governing regulations was not whimsical or illegal, as no irreparable prejudice was shown. The writ challenge therefore failed and the petition was dismissed.

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Issues: (i) Whether the Trade Tax Tribunal had power to recall, vary or modify an earlier stay order at a subsequent stage of the appeal; (ii) Whether the order vacating the stay and granting adjournment on terms was arbitrary or illegal.

Issue (i): Whether the Trade Tax Tribunal had power to recall, vary or modify an earlier stay order at a subsequent stage of the appeal.

Analysis: The power to grant stay under section 10(6) of the U.P. Trade Tax Act was treated as an ancillary and incidental power of appellate jurisdiction. On that basis, the authority that can grant a stay can also recall, modify or set aside that stay in appropriate cases. The absence of an express recall provision did not defeat such power, and the contention that the Tribunal lacked jurisdiction to do so was rejected.

Conclusion: The Tribunal had power to recall, vary or modify the stay order in appropriate cases.

Issue (ii): Whether the order vacating the stay and granting adjournment on terms was arbitrary or illegal.

Analysis: The Tribunal had adopted regulations permitting adjournment applications to be disposed of on such terms and conditions as deemed fit. The Court held that such practice was expected to be followed in the name of fair play and to avoid arbitrariness. Repeated adjournments by the petitioner justified withdrawal of the interim protection, and no irreparable prejudice was shown. The impugned action was therefore neither whimsical nor arbitrary.

Conclusion: The order vacating the stay and granting adjournment on terms was not arbitrary or illegal.

Final Conclusion: The challenge to the Tribunal's order failed, and the writ petition was dismissed.

Ratio Decidendi: An appellate authority that has implied power to grant stay also has incidental power to recall or modify that stay in appropriate cases, and such power may be exercised reasonably to prevent abuse of interim relief and to avoid arbitrariness.

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