KALABHARATI ADVERTISINGversusHEMANT VIMALNATH NARICHANIA AND ORS.

                      [2010] 10 S.C.R. 971


                KALABHARATI ADVERTISING                              A
                               v.
      HEMANT VIMALNATH NARICHANIA AND ORS.
          (Civil appeal No. 7349-50 of 2010)
                      SEPTEMBER 06, 2010
                                                                     B
    [P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]

     Constitution of India, 1950:

     Article 226 - The forum of the writ court cannot be used        c
for the purpose of giving interim relief as the only and final
relief to any litigant - Interim order.

      Withdrawal of a petition - It is not permissible for a party
filing a writ petition, to obtain certain orders during the
pendency of the petition and then withdraw the petition without      D
getting proper adjudication of the issue involved therein - In
such a situation, the benefit of interim relief automatically gets
withdrawn/neutralized on withdrawal of the said petition - Court
should a/so pass express order neutralising the effect of all
interim/consequential orders - Maxim "Actus Curiae                   E
neminem gravabit", which means that the act of the Court shall
prejudice no-one, becomes applicable in such a case -
Maxim - Doctrine of restitution - Doctrine of merger.

    Article 136 - If pursuant to directions of the High Court,       F
Municipal Corporation passes an order then that order can
be challenged in the Supreme Court.

     Interim 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                  973
            VIMALNATH NARICHANIA

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                 975
            VIMALNATH NARICHANIA

    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.


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
B   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
0
    delayed action of the Court. [Para 15] [987-B-D]

         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                 977
           VIMALNATH NARICHANIA

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
0
   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-
   A-E]

        4. The State is under obligation to act fairly without
  ill-will or malice-in fact or in law. "Legal malice" or "malice
F 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
H law to the prejudice of another, a depraved inclination on
      KALABHARATI ADVERTISING v. HEMANT                 979
            VIMALNATH NARICHANIA

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 the High Court is                    E
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]

    Ram and Shyam Company v. State of Haryana & Ors.
AIR 1985 SC 1147 - relied on.
                                                               G
                    Case Law Reference:
    AIR 1965 SC 1457           relied on           Para 12
    AIR 1966 SC 641            relied on           Para 12
                                                               H
    980      SUPREME COURT REPORTS           [2010) 10 S.C.R.


A         AIR 1970 SC 1273       relied on           Para 13
          AIR 1978 SC 1814       relied on           Para 13
          AIR 1987 SC 2186       relied on           Para 13
          (1998) 1 sec 162       relied on           Para 13
8
          (2008) 2 sec 105       relied on           Para 13
          1993 Supp. (2) sec 734 relied on           Para 15
          1995 Supp. (2) sec 726 relied on           Para 15
c         AIR 1997 SC 3071       relied on           Para 15
          AIR 1998 SC 1566       relied on           Para 15
          (2005) 8 sec 423       relied on           Para 15
D         AIR 1992 SC 1888       relied on           Para 16
          AIR 1980 SC 656        relied on           Para 16
          (1995) 3 sec 33        relied on           Para 17

E         AIR 2003 SC 4482       relied on           Para 18
          (2004) 2 sec 783       relied on           Para 19
          AIR 2000 SC 3243       relied on           Para 21
          AIR 1952 SC 12         relied on           Para 22
F
          AIR 1962 SC 1305       relied on           Para 22
          AIR 1964 SC 685        relied on           Para 22
          AIR 1966 SC 1441       relied on           Para 22
G                                                    Para 22
          AIR 1975 SC 2238       relied on
          AIR 2007 SC 1575       relied on           Para 23
          (2008) 11 sec 73       relied on           Para 24

H         AIR 1976 SC 1207       relied on           Para 25
      KALABHARATI ADVERTISING v. HEMANT                   981
            VIMALNATH NARICHANIA

    AIR 1979 SC 49              relied on           Para 25      A
    AIR 2003 SC 1941            relied on           Para 25
    (2003) s sec 567            relied on           Para 25
    AIR 2007 SC 976             relied on           Para 25
    (2005) 6 sec 116            relied on           Para 26      B

    (2005) 8 sec 394            relied on           Para 26
    AIR 1985 SC 1147            relied on           Para 29
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7349-7351 of 2010.                                               C
     From the Judgment & Order dated 4.2.2008 & 13.2'.2008
of the High Court of Judicature at Bombay in Writ Petition No.
2366 of 2007.
     Ravi Shankar Prasad, Atul Yeshwant Chitale, Abhay           D
Prakash Sahay, Shashi Pal Sharma, Niraj Kumar, Chander
Shekhar Ashri, Sunaina Dutta Sniggdha Pandey, Suchitra Atul
Chitale, S.M. Jadhav, Ratan Kumar Singh, Nikhilesh Krishnan,
Paranay Mahapatra, Vipin Kumar Jha for the appearing parties.
    The Judgment of the Court was delivered by                   E
     DR. B.S. CHAUHAN, J. 1. Delay condoned. Leave
granted.
     2. These appeals have been preferred against the
judgment and orders dated 4.2.2008/13.2.2008 passed by the       F
High Court of Judicature at Bombay in Writ Petition No.2366
of 2007 and the consequential order dated 8.2.2008, as
amended vide order dated 11.2.2008 passed by the Municipal
Corporation of Greater Mumbai by which the hoarding fixed by
the appellant in the Anand Darshan Co-operative Housing          G
Society Ltd., Respondent No.13 (hereinafter called the
"Society") had been removed in spite of agreements between
the parties.
    3. Facts and circumstances giving rise to these appeals
are that the appellant who is carrying out a business of         H
    982      SUPREME COURT REPORTS                 [2010] 10 S.C.R.


A advertisement hoardings within the city of Bombay approached
  the Society in 2001 for grant of permission to erect a hoarding
  admeasuring 40'x20' in its compound. The Society passed a
  Resolution in the year 2001, permitting the appellant to erect a
  hoarding of the aforesaid measurement. The appellant applied
B to the Municipal Corporation (hereinafter called the
  "Corporation") for grant of necessary permission for erecting
  the same. The said application was allowed by the Corporation
  vide order dated 4.8.2001. Subsequent thereto an agreement
  dated 5.9.2001 was executed between the appellant and the
c Society for a period of three years on various terms and
  conditions mentioned therein, and was given effect to. The said
  agreement was renewed after expiry of the period of three
  years in the year 2004 by the Society and ultimately vide
  Resolution dated 12.8.2007 for a further period of three years.
D      4. During this period, a Public Interest Litigation, being Writ
  Petition No.1132 of 2002 was filed before the Bombay High
  Court by one Dr. Anahita Peadoin against the Municipal
  Corporation of Greater Mumbai pertaining to the grant of
  permission for hoardings in Mumbai alleging various violations
E of guidelines issued by the Corporation for the said purpose.
  The Bombay High Court while entertaining the writ petition
  constituted a Committee to find out violations of the guidelines
  of the hoardings in Mumbai and the Committee found that 266
  hoardings including that of the appellant had been in violation
F of the guidelines issued by the Corporation. So far as the
  appellant is concerned, the Committee came to the conclusion
  that the said hoarding had been in violation of condition
  Nos.16(f) and 16(c), i.e., obstructing the air, light and ventilation
  and situated in the compulsory open space.
G      5. The Bombay High Court vide its order dated 1.10.2002
  directed the aggrieved parties to file representation before the
  Statutory Authority, i.e., Deputy Municipal Commissioner,
  against the findings of the Committee constituted by the Court.
  Accordingly, the appellant made a representation before the
H said authority and the said representation was disposed of on
     KALABHARATI ADVERTISING v. HEMANT                      983
 VIMALNATH NARICHANIA [DR. S.S. CHAUHAN, J.]

6.4.2004, after giving opportunity of hearing to the appellant     A
and examining the facts in the presence of officers/
representatives of the respondent-Corporation, coming to the
conclusion that the hoarding of the appellant was not violative
of guideline No.16(f). So far as violation of guideline No.16(c}
was concerned, the appellant was directed to apply to the Chief    B
Engineer (DP) for condonation of compulsory open space
clause of guidelines within 15 days with an observation that
regularisation of the hoarding would be subject to the outcome
of Writ Petition No.1132 of 2002.
     6. In pursuance to the order dated 6.4.2004, appellant        C
approached the said Authority vide representation dated
1.6.2004. The said representation was marked/assigned to the
Assistant Engineer (BP) and he was directed to examine the
case. The said Assistant Engineer (BP) City-Ill examined the
case and had also made physical verification of the hoarding       D
and prepared the report dated 16.7.2007 to the effect that there
was no violation of clause 16(c) of the guidelines. The said
report was placed before the Executive Engineer (BP) City-I
of the Corporation who approved the same vide order dated
17.7.2007.                                                         E

     7. There had been some dispute between the Society and
some of its members and those members raised certain
objections/complaints against the erection of the hoarding in
question. Those members approached the Co-operative Court          F
challenging the Resolution passed by the Society in favour of
the appellant for granting permission to erect the hoarding and
also made an application for interim relief. However, the Co-
operative Court dismissed the application for interim relief.

     8. Being aggrieved, some of the members of the Society        G
(Respondent Nos.1 to 5) filed Writ Petition No.2366 of 2007
before the Bombay High Court against the Society and the
appellant for cancellation of the permission granted in favour
of the appellant. During the course of hearing of the said writ
petition on 4.2.2008, the Joint Municipal Commissioner             H
    984      SUPREME COURT REPORTS                  [2010] 10 S.C.R.


A (Education), Shri S.S. Shinde filed an affidavit to withdraw the
  earlier order approving the erection and for permission to pass
  a fresh order in accordance with law. The court accepted the
  said affidavit and permitted the Corporation to withdraw its
  earlier order with further liberty to pass fresh orders without
B giving an opportunity of hearing to the appellant or the Society
  as it had already been done while passing the earlier order. In
  pursuance of the said order, a fresh order was passed by the
  respondent-Corporation on 11.2.2008, not approving the
  erection of hoarding which had earlier been approved. Hence,
c these appeals.
          9. Shri Ravi Shankar Prasad, Ld. Senior Counsel for the
    appellant, submitted that as the PIL, i.e., Writ Petition (Civil)
    No.1132 of 2002 in which certain direction had been issued
    by the High Court and a Committee was constituted to examine
D   as to whether hoardings were in violation of the guidelines and
    an action had been taken in pursuance thereof, is still pending,
    even if the respondent nos.1 to 5 were aggrieved of any order
    of the Corporation, they ought to have moved an application
    for intervention and for further direction in the said Writ Petition
E   No.1132 of 2002. An independent writ petition could not have
    been filed. So far as the internal dispute between the Society
    and some of its members is concerned, it is still pending with
    the Co-operative Court. Only an application for interim relief had
    been dismissed. Therefore, the writ petition itself was not
F   maintainable as the said respondents had chosen the forum
    of Co-operative Court under the provisions of Maharashtra Co-
    operative Societies Act, 1960 (hereinafter called as 'Act"). The
    High Court had permitted the respondent-Corporation to
    withdraw its earlier order and to pass a fresh order, that
G   tantamounts to conferring the jurisdiction of review upon the
    statutory authority, though such power had not been conferred
    by the Statute. Therefore, the order conferring such power itself
    is without jurisdiction. The Corporation passed subsequent
    order without assigning any reason and giving opportunity of
H   hearing to the appellant. It is a clear cut case of legal malice.
     KALABHARATI ADVER\f"ISING v. HEMANT                   985
 VIMALNATH NARICHANIA [DR. B.S. CHAUHAN, J.]

More so, the respondent Nos. 1 to 5, have been permitted to       A
withdraw the Writ Petition No.2366 of 2007 itself vide order
dated 13.2.2008, therefore, all orders passed therein by the
High Court as well as the consequential orders passed by the
Corporation stood automatically washed away. Thus, the
appellant should be permitted to continue its business with the   B
Society as if no order had ever been passed by the Court or
Corporation in regard to the hoardings in question.

     10. On the contrary, Shri Atul Yeshwant Chitale, Ld. Senior
Counsel appearing for the respondent-Corporation, has C
submitted that a new policy dated 10.1.2008 has come into
existence. The case of the appellant shall be considered strictly
in accordance with the terms and conditions incorporated.
therein. Thus, an opportunity should be given to the respondent-
Corporation to consider the case afresh.
                                                                  D
     Shri Ratan Kumar Singh, Ld. Counsel appearing for
respondent nos.1 to 5 (original writ petitioners) has submitted
that withdrawal of the writ petition does not have any bearing
on these appeals as the same had been withdrawn after being
satisfied that their grievances stood fully redressed by the      E
interim orders passed by the High Court and consequential
orders passed by the Corporation. The order passed by the
Corporation could not be challenged before this Court directly,
without approaching the High Court. The pendency of the
dispute between the Society and its members before the Co-        F
operative Court could not create any hindrance for them to
approach the High Court by filing a fresh Writ Petition as they
were not parties in the earlier Writ Petition No.1132 of 2002.
The hoardings in question had been in violation of the
guidelines of the Corporation and thus, subsequent orders         G
passed by the Corporation do not require any interference.
Thus, the appeals have no merit and are liable to be dismissed.

    11. We have considered the rival submissions made by
both the parties and perused the record.
                                                                  H
    986      SUPREME COURT REPORTS                  [2010] 10 S.C.R.


A LEGAL ISSUES:

    Review in absence of statutory provisions:

       12. It is settled legal proposition that unless the statute/rules
  so permit, the review application is not maintainable in case
8 of judicial/quasi-judicial orders. In absence of any provision in
  the Act 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. (vide: Patel
  Chunibhai Dajibha v. Narayanrao Khanderao Jambekar &
C Anr., AIR 1965 SC 1457; and Harbhajan Singh v. Karam
  Singh & Ors., AIR 1966 SC 641).

        13. In Paff)/ Narshi Thakershi & Ors. v. Shri Pradyuman
  Singhji Arjunsinghji, AIR 1970 SC 1273; Maj. Chandra Bhan
o Singh v. Latafat Ullah Khan & Ors., AIR 1978 SC 1814; Dr.
  Smt. Kuntesh Gupta v. Management of Hindu Kanya
  Mahavidhya/aya, Sitapur (UP.) & Ors., AIR 1987 SC 2186;
  State of Orissa & Ors. v. Commissioner of Land Records and
  Settlement, Cuttack & Ors., (1998) 7 SCC 162; and Sunita
E Jain v. Pawan Kumar Jain & Ors., (2008) 2 SCC 705, this
  Court held that the power to review is not an inherent power. It
  must be conferred by law either expressly/specifically or by
  necessary implication and in absence of any provision in the
  Act/Rules, review of an earlier order is impermissible as review
  is a creation of statute. Jurisdiction of review can be derived
F only from the statute and thus, any order of review in absence
  of any statutory provision for the same is nullity being without
  jurisdiction.

       14. Therefore, in view of the above, the law on the point
G can be summarised to the effect that in absence of any statutory
  provision providing for review, entertaining an application for
  review or under the garb of clarification/ modification/correction
  is not permissible.

H
      KALABHARATI ADVERTISING v. HEMANT                          987
  VIMALNATH NARICHANIA [DR B.S. CHAUHAN, J.]

Case dismissed/withdrawn- effect on interim relief:                      A

        15. No litigant can derive any benefit from the mere
 pendency of a case in a Court of Law, as the· interim order
 always merges into the final order to be passed in the case
 and if the case is ultimately dismissed, the interim order stands       8
 nullified automatically. A party cannot be allowed to take any
 ben~it 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      C
 maxim "Actus Curiae neminem.gravabif', which means that the
 act of the Court shall prejudice no-one, becomes applicable in
 such a 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   D
 of litigation cannot be permitted to confer any advantage on a
 party by the delayed action of the Court. (vide: Dr. A.R. Sircar
 v. State of Uttar Pradesh & Ors., 1993 Supp. (2) SCC 734;
 Shiv Shanker & Ors. v. Board of Directors, Uttar Pradesh
·State Road Transport Corporation & Anr., 1995 Supp. (2)                 E
 SCC 726; the 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; and Jaipur Municipal Corporation v. C.L.
 Mishra, (2005) 8 SCC 423).                                              F

     16. In Ram Krishna Verma & Ors. v. State of U.P. & Ors.,
AIR 1992 SC 1888, this Court examined the issue while placing
reliance upon its earlier judgment in Grind/ays Bank Limited
v. Income Tax Officer, Calcutta & Ors., AIR 1980 SC 656 and              G
held that no person can suffer from the act of the Court and in
case an interim order. has been passed and the petitioner
takes advantage thereof, and ultimately the petition stands
dismissed, the interest of justice requires that any undeserved
or unfair advantage gained by a party invoking the jurisdiction
of the Court must be neutralized.
                                                                         H
    988       SUPREME COURT REPORTS                [2010] 10 S.C.R.


A       17. A similar view has been reiterated by this Court in
    Mahadeo Savlaram Shelke & Ors. v. Pune Municipal
    Corporation & Anr., (1995) 3 SCC 33.

       18. In South Eastern Coalfields Ltd. v. State of M.P. &
  Ors., AIR 2003 SC 4482, this Court examined this issue in
8
  detail and held that no one shall suffer by an act of the Court.
  The factor attracting the applicability of restitution is not the act
  of the Court being wrongful or a mistake or error committed by
  the court; the test is whether an act of the party persuading the
  Court to pass an order held at the end as not sustainable, has
C resulted in one party gaining an advantage it would not have
  otherwise earned, or the ·other party suffering an
  impoverishment which it would not have suffered but for the
  order of the Court and the act of such party. There is nothing
  wrong in the parties demanding to be placed in the same
D position in which they would have been had the Court not
  intervened by its interim order, when at the end of the
  proceedings, the Court pronounces its judicial verdict which
  does not match with and countenance its own interim verdict.
  The injury, if any, caused by the act of the Court shall be undone
E and the gain which the party would have earned unless it was
  interdicted by the order of the Court would be restored to or
  conferred on the party by suitably commanding the party liable
  to do so. Any opinion to the contrary would lead to unjust if not
  disastrous consequences. The Court further held :
F
                " ..... Litigation may turn into a fruitful industry.
          Though litigation is not gambling yet there is an element
          of chance in every litigation. Unscrupulous litigants may
          feel encouraged to approach the courts, persuading the
          Court to pass interlocutory orders favourable to them by
G
          making out a prima facie case when the issues are earlier
          to be heard and determined on merits and if the concept
          of restitution is excluded from application to interim
          orders, then the litigant would stand to gain by swallowing
          the benefits yielding out of the interim order even though
H
     KALABHARATI ADVERTISING v. HEMANT       989
 VIMALNATH NARICHANIA [DR. B.S. CHAUHAN, J.]

     the battle has been lost at the end. This cannot be                 A
     countenanced. We are, therefore, of the opinion that the
     successful party finally held entitled to a relief assessable
     in terms of money at the end of the litigation, is entitled
     to be compensated ...... "
                                                                         B
   19. In Karnataka Rare Earth & Anr. v. Senior Geologist, ·
Department of Mines & Geology & Anr., (2004) 2 SCC 783,
a similar view has been reiterated by this Court observing that
the party who succeeds ultimately is to be placed in the same
position in which they would have been if the Court would not            C
have protected them by issuing interim order.

     20. The aforesaid judgments are passed on the
application of legal maxim "sublato fundamento cadit opus",
which means in case a foundation is removed, the
superstructure falls.                                                    D

     21. In Badrinath v. State of Tamil Nadu & Ors., AIR 2000
SC 3243, this Court observed that once the basis of a
proceeding is gone, all consequential acts, action, orders would
fall to the ground automatically and this principle of                   E
consequential order which is applicable to judicial and quasi-
judicial proceedings is equally applicable to administrative
orders.

Court-cannot be used only for interim relief:
                                                                         F
      22. 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 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             G
forum, it should not grant any interim relief in favour of such a
litigant for an interregnum period till the said party approaches
the alternative forum and obtains interim relief. (vide: State of
Orissa v. Madan Gopal Rungta, AIR 1952 SC 12; Amarsarjit
Singh v. State of Punjab, AIR 1962 SC 1305; State of Orissa              H
    990      SUPREME COURT REPORTS                  [2010] 10 S.C.R.


A   v. Ram Chandra Dev, AIR 1964 SC 685; State of Bihar v.
    Rambalak Singh "Balak" & Ors., AIR 1966 SC 1441; and
    Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke &
    Ors., AIR 1975 SC 2238).

         23. It is settled proposition that an order of withdrawal of
8
    a suit does not amount to a decree of the court, which can be
    executed. (See            Kandapazha Nadar & Ors. v.
    Chitraganiammal & Ors. AIR 2007 SC 1575).

        24. It is not permissible for a party to file a writ petition,
C obtaining certain orders during the pendency of the 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
D benefit of the interim relief 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
E 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 on merits. (Vide
F Abhimanyoo Ram v. State of UP., (2008) 17 SCC 73).

    Legal Malice:

      25. The State is under obligation to act fairly without ill will
  or malice- in fact or in law. "Legal malice" or "malice in law"
G 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 State, it can never be a case of
H personal ill-will or spite on the part of the State. It is an act which
     KALABHARATI ADVERTISING v. HEMANT                       991
 VIMALNATH NARICHANIA [DR. B.S. CHAUHAN, J.]
is taken with an oblique or indirect object. It means exercise of    A
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 the part of the
authority to disregard the rights of others, which intent is
manifested by its injurious acts. (Vide Addi. Distt. Magistrate,     B
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, Al R 2003 SC 1941 ; Chairman and
 M.D., B.P.L. Ltd. V. S.P. Gururaja & Ors., (2003) 8 SCC 567;
and West Bengal State Electricity Bowd v. Dilip Kumar Ray,           c
AIR 2007 SC 976).

     26. Passing an order for an unauthorized purpose
constitutes malice in law. (Vide Punjab State Electricity Board
Ltd. v. Zora Singh & Ors., (2005) 6 SCC 776; and Union of
India Through Government of Pondicherry & Anr. v. V.                 D
Ramakrishnan & Ors., (2005) 8 SCC 394).

     27. The instant case is required to be examined in the light
of the aforesaid settled legal propositions.
                                                                     E
      Admittedly, Writ Petition No. 1132 of 2002, wherein the
issue of examining the violation of guidelines issued by the
Corporation had been raised and the High Court had passed
certain directions which had been complied with and in
pursuance of the same the Corporation passed an order dated
                                                                     F
6.4.2004 ·that an order passed by it would be subject to the
decision in the said Writ Petition No. 1132 of 2002 is still
pending before the High Court. In such a fact-situation, if the
respondent Nos. 1 to 5 were aggrieved by the order passed
by the Corporation they ought to have filed an application for
intervention and appropriate directions in the said writ petition.   G
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 contradictory orders must not be passed in
similar circumstances.                                               H·
    992      SUPREME COURT REPORTS                 (2010] 10 S.C.R.


A       28. 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. In spite of several queries put
  by us to the learned counsel for the respondents, no provision
B for review under the statute could be brought to our notice. The
  court cannot confer a jurisdiction upon any 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
c High Court is without jurisdiction and, therefore, a nullity. Any
  order 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
0
  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
E reasons and violating the principles of natural justice. It
  establishes the allegations of legal malice made by the
  appellant against the Corporation.

       29. The submission made on behalf of respondent Nos. 1
F to 5 that appellant could not challenge the orders passed by
  the Corporation directly before this Court without approaching
  the High Court is 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
G the basic order passed by the High Court before itself under
  the garb of challenging the consequential orders passed by the
  Corporation. "The clitch of appeal from Ceasar to Ceasar's
  wife can only be bettered by appeal from one's own order to
  oneself" (See Ram and Shyam Company v. State of Haryana
H & Ors., AIR 1985 SC 1147).
     KALABHARATI ADVERTISING v. HEMANT                         993
 VIMALNATH NARICHANIA [DR. B.S. CHAUHAN, J.]

     30. It has been mentioned by the appellant in the petition        A
that respondent No. 1 himself has vetted the agreement
reached between the appellant and the respondent-society and
was a party to the same. Therefore, he was fully aware as what
was the agreement and how it would be given effect to. The
respondent No.1 has not denied this averment. Nor he has               B
explained as to what were the changed circumstances, which
made him aggrieved. More so, if the said respondent Nos. 1
to 5 were aggrieved of the order passed by the Co-operative
Court rejecting their application of interim relief, they could have
approached the appropriate forum challenging the same, rather          c
they have chosen to approach the High Court leaving the matter
pending before the Co-operative Court.

     31. Respondent No.1 had approached the Co-operative /
Court and could not get the interim relief. He filed a writ petition
along with others after meeting his waterloo there. D
Subsequently, after obtaining the interim orders from the High
Court and consequential orders·from the Corporation withdrew   /

the writ petition.                                         / ,

     The respondent Nos. 1 to 5 for the reasons best known to          E
them have prayed for withdrawal of the Writ Petition No. 2366
of 2007 and the High court vide Nder dated 13.2.2008 allowed
the said respondents to withdraw the same. The order reads
as under:
                                                                       F
            "As per the statement by Mr. S.U. Kamdar on 4th
     February, 2008, the earlier order has been withdrawn by
     the corporation and fresh order has been passed by the
     conce.rned officer. The copy of the said order is produced.
     It is marked Exhibit-X for identification purpose. Mr. S.U.
     Kamdar has further reported to the court that the action of       G
     removal of the hoardings has already been commenced
     and it will be completed within two to three days.

          In view of the fresh order passed by the corporation
     marked Exhibit-X and the statement of Mr. S.U. Kamdar,            H
    994       SUPREME COURT REPORTS                 (2010] 10 S.C.R.


A         learned counsel for the petitioner states that the grievance
          in the petition is redressed and, therefore, he may be
          allowed to withdraw the petition with liberty to file similar
          type of petition if occasion so arises.

B              Petition is allowed to be withdrawn with liberty as
          prayed for."

          32. "Withdrawal" means "to go away or retire from the field
    of battle or any contest." Thus, the word 'withdrawal' is
    indicative of the voluntary and conscious decision of a person.
C   Therefore, if the said writ petitioners (respondent Nos. 1 to 5)
    have voluntarily abandoned their claim withdrawing the said 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 removed, the super-
0   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 Corporation are accepted to be in effect even today, it
E   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 would enjoy the fruits of
    interim relief even after withdrawal/dismissal of the case. Law
F   certainly would not permit such a course. Respondent No.1 is
    a practising advocate. He is not a layman, nor it can be
    assumed that he could not understand the consequences of
    withdrawal of the writ petition. Therefore, all orders passed by
    the High Court and the statutory authority stood washed away
G   on withdrawal of the said writ petition and the said writ
    petitioners cannot claim any benefit of either of the same.

       33. In view of the above, appeals deserve to be allowed
  to the effect that the appellant and the respondent-Society may
  act as if no order had ever been passed, adversely affecting
H their contract, by the High Court in Writ Petition No.2366 of
     KALABHARATI ADVERTISING v. HEMANT                      995
 VIMALNATH NARICHANIA [DR. S.S. CHAUHAN, J.]

2007 or any statutory authority and they may proceed with the      A
agreemenUcontract in accordance with law.

    34:. Needless to say that this judgmenUorder would have
no bearing on the order passed by any courUtribun~I or statutory
authority independent of the proceedings taken in Writ Petition
                                                                   B
No. 2366 of 2007.

    35. The appeals are allowed as explained hereinabove.
No order as to cost.

~G.                                          Appeals allowed.