KALABHARATI ADVERTISING v. HEMANT VIMALNATH NARICHANIA & Ors.

Order

If the court comes to the conclusion that the matter G requires adjudication by some other appropriate forum and relegates the said party to that forum, it should not grant any interim relief in favour of such a litigant. Review: 971 H 972 SUPREME COURT REPORTS [2010) 10 S.C.R. A Review - Maintainability of - Held: Not maintainable in absence of statute/rules granting an express power of review. Review - Held: Is a statutory remedy - Court cannot confer jurisdiction of review upon an authority - On facts, the High Court permitted the Corporation to withdraw its earlier 8 order and gave liberty to it to pass fresh orders - Pursuant thereto, the Corporation recalled its earlier order and reviewed the same without assigning any reason and without giving opportunity to be heard to the parties - The order passed by the Corporation stood vitiated for not recording reasons and C violating the principles of natural justice - It was obligatory on the part of the Corporation to explain as to what was the material on record on the basis of which the earlier order was changed - Administrative law - Jurisdiction - Malice - Natural justice.

D Administrative law: Statutory authority - Legal malice - Held: State is under obligation to act fairly without ill will or malice-in fact or in law - On facts, order of Municipal Corporation recalling its earlier E order and reviewing the same without assigning any reasons and without giving opportunity of hearing to parties, establishes the a/legation of malice - Malice - Natural justice. Words and phrases: F "Legal malice" or "malice in law" - Meaning of 'withdrawal' - Meaning of

The appellant-firm was carrying on a business of G advertisement hoardings in the city of Mumbai and was permitted to erect the hoardings in respondent no.13- Society. A Committee was constituted by the High Court in a writ petition against the Municipal Corporation challenging the grant of hoardings in Mumbai on the H ground of various violations of guidelines issued by the KALABHARATI ADVERTISING v. HEMANT VIMALNATH NARICHANIA 973 Corporation for the said purpose. The Committee found A that 266 hoardings including that of the appellant were in violation of the guidelines. The High Court directed the aggrieved parties to file representations before the Statutory Authority. Accordingly, the appellant made a representation before the Municipal Commissioner. The B Commissioner disposed of the representation on 6.4.2004 directing the appellant to apply to Chief Engineer for condonation of compulsory open space clause of guidelines with an observation that regularisation of the hoardings would be subject to the outcome of the writ c petition. Thereafter the appellant made a representation before the competent authority. The authority examined the case and was of the view that there was no violation of the said guideline. Some dispute arose between the Society and few of D its members, who raised certain objections regarding the erection of the hoardings. The members approached the Co-operative Court challenging the grant of permission to erect the hoardings to the appellant and also made an application for interim relief. However, the Co-operative E Court dismissed the application for interim relief. Aggrieved, respondent nos.1 to 5, the members of the Society, filed a writ petition before the High Court against the Society and the appellant, praying for cancellation of the permission granted in favour of the appellant. During F the course of hearing of the said writ petition, on 4.2.2008, the Municipal Commissioner filed an affidavit to withdraw the earlier order approving the erection and for permission to pass a fresh order in accordance with law. The High Court accepted the said affidavit and permitted G the Corporation to withdraw its earlier order and gave liberty to pass fresh orders without giving an opportunity of hearing to the appellant or to the Society. In pursuance of the said order, a fresh order was passed by the respondent-Corporation on 11.2.2008, not approving the H 974 SUPREME COURT REPORTS [2010] 10 S.C.R. A erection of hoarding which had earlier been approved. Moreover, respondent no. 1 to 5 were permitted to withdraw the writ petition by order dated 13.2.2008. The instant appeals were filed challenging the order dated 4.2.2008 and 13.2.2008 passed by the High Court. B Allowing the appeals, the Court HELD: 1.1. It is a settled legal proposition that the forum of the writ court cannot be used for the purpose of giving interim relief as the only and the final relief to C any litigant. If the court comes to the conclusion that the matter requires adjudication by some other appropriate forum and relegates the said party to that forum, it should not grant any interim relief in favour of such a litigant for an interregnum period till the said party approaches the D alternative forum and obtains interim relief. It is settled proposition that an order of withdrawal of a suit does not amount to a decree of the court, which can be executed. It is not permissible for a party to file a writ petition, obtaining certain orders during the pendency of the E petition and withdraw the same without getting proper adjudication of the issue involved therein and insist that the benefits of the interim orders or consequential orders passed in pursuance of the interim order passed by the writ court would continue. The benefit of the interim relief F automatically gets withdrawn/neutralized on withdrawal of the said petition. In such a case concept of restitution becomes applicable otherwise the party would continue to get benefit of the interim order even after loosing the case in the court. The court should also pass order G expressly neutralizing the effect of all consequential orders passed in pursuance of the interim order passed by the court. Such express directions may be necessary to check the rising trend among the litigants to secure the relief as an interim measure and then avoid adjudication H on merits. [Paras 22-24] [980-F-H; 981-A·F] KALABHARATI ADVERTISING v. HEMANT VIMALNATH NARICHANIA 975 State of Orissa v. Madan Gopal Rungta AIR 1952 SC 12; A Amarsarjit Singh v. State of Punjab AIR 1962 SC 1305; State of Orissa v. Ram Chandra Dev AIR 1964 SC 685; State of Bihar v. Rambalak Singh "Balak" & Ors. AIR 1966 SC 1441; Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke & Ors. AIR 1975 SC 2238; Kandapazha Nadar & Ors. v. B Chitraganiammal & Ors. AIR 2007 SC 1575; Abhimanyoo Ram v. State of UP. (2008) 17 SCC 73 - relied on.

1.2. "Withdrawal" means "to go away or retire from the field of battle or any contest." Thus, the word C 'withdrawal' is indicative of the voluntary and conscious decision of a person. Therefore, if respondent Nos. 1 to 5 voluntarily abandoned their claim withdrawing the writ petition, they cannot be permitted to take any benefit of the orders passed by the High Court or the statutory authority in pursuance thereof. Once the foundation is D removed, the super-structure is bound to fall. Interim relief is granted only in aid of and as ancillary to the main relief which may be available to the party at the time of final adjudication of the case by the court. In case the orders passed by the High Court and, consequently, by the E Corporation are accepted to be in effect till date, it would be tantamount to allowing the writ petition without any adjudication on the issues involved therein. After obtaining interim relief, a party cannot avoid final adjudication of the dispute on merit and claim that he F would enjoy the fruits of interim relief even after withdrawal/dismissal of the case. Law certainly would not permit such a course. Therefore, all orders passed by the High Court and the statutory authority stood washed away on withdrawal of the said writ petition and the said G writ petitioners cannot claim any benefit of either of the same. [para 32] [994-C-G]

1.3. No litigant can derive any benefit from a mere pendency of a case in a court of law, as the interim order H 976 SUPREME COURT REPORTS [2010] 10 S.C.R. B A always merges into the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. A party can.not be allowed to take any benefit of his own wrongs by getting an interim order and thereafter blame the Court. The fact that the case is found ultimately devoid of any merit, or the party withdrew the writ petition, shows that a frivolous writ petition had been filed. The maxim "Actus Curiae neminem gravabif', which means that the act of the Court shall prejudice no-one, becomes applicable in such a C case. In such a situation, the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a party by the delayed action of the Court. [Para 15] [987-B-D] 0 Dr. A.R. Sircar v. State of Uttar Pradesh & Ors. 1993 Supp. (2) SCC 734; Sbiv Shanker & Ors. v. Board of Directors, Uttar Pradesh State Road Transporl Corporation & E Anr. 1995 Supp. (2) SCC 726; Committee of Management, Arya Inter College, Arya Nagar, Kanpur & Anr. v. Sree Kumar Tiwary & Anr. AIR 1997 SC 3071; GTC Industries Ltd. v. Union of India & Ors., AIR 1998 SC 1566; Jaipur Municipal Corporation v. C.L. Mishra (2005) 8 SCC 423; Ram Krishna F Verma & Ors. v. State of UP. & Ors. AIR 1992 SC 1888; Grindlays Bank Limited v. Income Tax Officer, Calcutta & Ors. AIR 1980 SC 656; Mahadeo Savlaram Shelke & Ors. v. Pune Municipal Corporation & Anr. (1995) 3 SCC 33; South Eastern Coalfields Ltd. v. State of M.P. & Ors. AIR 2003 SC G 4482; Karnataka Rare Earlh & Anr. v. Senior Geologist, Deparlment of Mines & Geology & Anr. (2004) 2 SCC 783; Badrinath v. State of Tamil Nadu & Ors. AIR 2000 SC 3243 - relied on.

#2. Admittedly, the writ petition in which a Committee H KALABHARATI ADVERTISING v. HEMANT VIMALNATH NARICHANIA 977 was constituted and the High Court had passed certain A directions and in pursuance of the same the Corporation found that there was no violation of the guidelines, is still pending before the High Court. In such a fact-situation, if respondent nos. 1 to 5 were aggrieved by the order passed by the Corporation, they ought to have filed an B application for intervention and appropriate directions in the said writ petition. Undoubtedly, there could be no prohibition for filing a fresh writ petition, but it would have been more appropriate for them to file an application in the said pending writ petition, as it is necessary that c contradictory orders must not be passed in similar circumstances. [Para 27] [991-E-H]

3.1. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasi-judicial orders. hi D absence of any provision in the statute granting an express power of review, it is manifest that a review could not be made and the order in review, if passed, is ultra vires,· illegal and without jurisdiction. In absence of any statutory provision providing for review, entertaining an E application for review or under the garb of clarification/ modification/correction, is not permissible. [Paras 12, 14] [986-B-C; G-H] Patel Chunibhai Dajibha v. Narayanrao Khanderao F Jambekar & Anr. AIR 1965 SC 1457; Harbhajan Singh v. Karam Singh & Ors. AIR 1966 SC 641; Patel Narshi Thakershi & Ors. v. Shri Pradyuman Singhji Arjunsinghji AIR 1970 SC 1273; Maj. Chandra Bhan Singh v. Latafat Ullah Khan & Ors. AIR 1978 SC 1814; Dr. Smt. Kuntesh Gupta v. G Management of Hindu Kanya Mahavidhya/aya, Sitapur (U.P.) & Ors. AIR 1987 SC 2186; State of Orissa & Ors. v. Commissioner of Land Records and Settlement, Cuttack & Ors. (1998) 7 SCC 162; Sunita Jain v. Pawan Kumar Jain & Ors. {2008) 2 sec 705 - relied on. H 978 SUPREME COURT REPORTS [2010] 10 S.C.R. A

3.2. The High Court could not have allowed the Corporation to recall its earlier order and pass a fresh order, that too, without giving an opportunity of hearing to the appellant and the Society. Review is a statutory remedy. The court cannot confer a jurisdiction upon any B authority. Conferring jurisdiction upon a Court/Tribunal/ Authority is a legislative function and the same cannot be conferred either by the court or by the consent of the parties. Such an order passed by_ the High Court is _without jurisdiction and, therefore, a nullity. Any order c passed in pursuance thereof, also remains unenforceable and inexecutable. More so, the High Court could not have permitted the Corporation to pass an order without giving an opportunity of hearing to the appellant and the Society. More so, the Corporation could not pass an order recalling the order passed by it earlier and reviewing the same without assigning any reason. It was obligatory on the part of the Corporation to explain as to what was the material on record on the basis of which the earlier order has been changed. Thus, the order passed by the Corporation stood vitiated for not recording reasons and E violating the principles of natural justice. [Para 28] [992- 0 A-E] F

#4. The State is under obligation to act fairly without ill-will or malice-in fact or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill-feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the G State, it can never be a case of personal ill-will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for "purposes foreign to those for which it is in law intended." It means conscious violation of the law to the prejudice of another, a depraved inclination on H KALABHARATI ADVERTISING v. HEMANT VIMALNATH NARICHANIA 979 the part of the authority to disregard the rights of others, A which intent is manifested by its injurious acts. Passing an order for an unauthorized purpose constitutes malice in law. The order of Corporation recalling its earlier order establishe_~ the allegations of legal malice made by the appellant agamst the Corporation. [Paras 25, 26 and 28] B [990-G-H; 991-A-D; 992-E] Addi. Distt. Magistrate, Jabalpur v. Shivakant Shukla AIR 1976 SC 1207; Smt. S.R. Venkataraman v. Union of India AIR 1979 SC 49; State of A.P. v. Goverdhanlal Pitti AIR 2003 C SC 1941; Chairman and M.D., B.P.L. Ltd. v. S.P. Gururaja & Ors. (2003) 8 SCC 567; West Bengal State Electricity Board v. Dilip Kumar Ray AIR 2007 SC 976; Punjab State Electricity Board Ltd. v. Zora Singh & Ors. (2005) 6 SCC 776; Union of India Through Government of Pondicherry & Anr. v. V. Ramakrishnan & Ors. (2005) 8 sec 394 - relied on. D

#5. The submission made on behalf of respondent Nos.1 to 5 that the appellant could not challenge the orders passed by the Corporation directly before this Court without approaching preposterous for the reason that Corporation passed the impugned orders in pursuance of the orders passed by the High Court itself. In fact, it could amount to challenging the basic order passed by the High Court before itself under the garb of challenging the F consequential orders passed by the Corporation. [Para 29) [992-F-G] the High Court is E Ram and Shyam Company v. State of Haryana & Ors. AIR 1985 SC 1147 - relied on. Case Law Reference: AIR 1965 SC 1457 relied on AIR 1966 SC 641 relied on Para 12 Para 12 G H 980 SUPREME COURT REPORTS [2010) 10 S.C.R. A AIR 1970 SC 1273 relied on 8 c D E F G AIR 1978 SC 1814 relied on AIR 1987 SC 2186 relied on (1998) 1 sec 162 (2008) 2 sec 105 relied on relied on 1993 Supp. (2) sec 734 relied on 1995 Supp. (2) sec 726 relied on AIR 1997 SC 3071 relied on AIR 1998 SC 1566 relied on (2005) 8 sec 423 relied on AIR 1992 SC 1888 relied on AIR 1980 SC 656 (1995) 3 sec 33 relied on relied on AIR 2003 SC 4482 relied on (2004) 2 sec 783 relied on AIR 2000 SC 3243 relied on AIR 1952 SC 12 relied on AIR 1962 SC 1305 relied on AIR 1964 SC 685 relied on AIR 1966 SC 1441 relied on AIR 1975 SC 2238 relied on AIR 2007 SC 1575 relied on (2008) 11 sec 73 relied on H AIR 1976 SC 1207 relied on Para 13 Para 13 Para 13 Para 13 Para 13 Para 15 Para 15 Para 15 Para 15 Para 15 Para 16 Para 16 Para 17 Para 18 Para 19 Para 21 Para 22 Para 22 Para 22 Para 22 Para 22 Para 23 Para 24 Para 25 KALABHARATI ADVERTISING v. HEMANT VIMALNATH NARICHANIA 981 AIR 1979 SC 49