REPORTABL

E  

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.            OF 2010 (Arising out of SLP (C) Nos.25043-25045 of 2008)

Kalabharati Advertising            …Appellant

Versus Hemant Vimalnath Narichania and Ors.    …Respondents

J U D G M E N T

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 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  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 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  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  

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.

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.  

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Anahita  Peadoin  against  the  Municipal  Corporation  of  Greater  Mumbai  

pertaining  to  the  grant  of  permission  for  hoardings  in  Mumbai  alleging  

various  violations  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 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.

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  said  authority  and the  said  representation  was disposed of  on  

6.4.2004, after giving opportunity of hearing to the appellant 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  

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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 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  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-III examined the  

case and had also made physical verification of the hoarding 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.

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 challenging the Resolution passed by the Society in favour  

of the appellant for granting permission to erect the hoarding and also made  

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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 (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  

(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  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, 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  

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which certain direction had been issued by the High Court and a Committee  

was constituted to examine 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  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 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 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  

hearing to the appellant. It is a clear cut case of legal malice. More so, the  

respondent Nos. 1 to 5, have been permitted to withdraw the Writ Petition  

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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 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 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.

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 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.  

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The pendency of the dispute between the Society and its members before the  

Co-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  

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.        

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 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 & Anr., AIR  

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1965 SC 1457; and Harbhajan Singh v. Karam Singh & Ors., AIR 1966  

SC 641).

13. In  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.  

Management of Hindu Kanya Mahavidhyalaya, 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; and Sunita  

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 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  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.  

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Case dismissed/withdrawn- effect on interim relief:

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 nullified automatically. A party cannot 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 gravabit”, 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 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) 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.  

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Union  of  India  &  Ors.,  AIR  1998  SC  1566; and  Jaipur  Municipal  

Corporation v. C.L. Mishra, (2005) 8 SCC 423).

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  Grindlays  Bank  Limited v.  Income  Tax  Officer,  

Calcutta & Ors., AIR 1980 SC 656 and 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.

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 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  

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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 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 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 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 :

“…..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 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 the battle has   been lost at the end. This cannot be countenanced. We are,   therefore,  of  the  opinion  that  the  successful  party  finally   

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held entitled to a relief assessable in terms of money at the   end of the litigation, is entitled to be compensated……”

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 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.  

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   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:

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  

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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 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 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 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, 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  

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passed  in  pursuance  of  the  interim order  passed  by  the  writ  court  

would continue.  The 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  

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  

Abhimanyoo Ram v. State of U.P., (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” 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 personal ill-will or  

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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 the part of the  

authority to disregard the rights of others, which intent is manifested by its  

injurious  acts.  (Vide   Addl.  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 SC 1941;  

Chairman and M.D., B.P.L. Ltd. V. S.P. Gururaja & Ors., (2003) 8 SCC  

567; and West Bengal State Electricity Board v. Dilip Kumar Ray, 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. Ramakrishnan & Ors., (2005) 8 SCC 394).

27. The  instant  case  is  required  to  be  examined  in  the  light  of  the  

aforesaid settled legal  propositions.  

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  

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complied with and in pursuance of the same the Corporation passed an order  

dated 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. 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.  

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 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 High Court is without jurisdiction and,  

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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 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  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  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 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   

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appeal from one’s own order to oneself.” (See Ram and Shyam Company  

v. State of Haryana & Ors., AIR 1985 SC 1147).

30. It has been mentioned by the appellant in the petition 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 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  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. Subsequently, after obtaining the interim orders  

from  the  High  Court  and  consequential  orders  from  the  Corporation  

withdrew the writ petition.   

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The respondent Nos. 1 to 5 for the reasons best known to them have  

prayed for withdrawal of the Writ Petition No. 2366 of 2007 and the High  

court vide order dated 13.2.2008 allowed the  said respondents to withdraw  

the same. The order reads as under:

   “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   concerned 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   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,   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.

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.   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  

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pursuance thereof. Once the foundation is 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 Corporation are accepted to be in effect  

even today, 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 would enjoy the fruits of interim relief even after withdrawal/dismissal of  

the case.  Law 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 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 their contract, by the High Court in Writ  

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Petition No.2366 of 2007 or any statutory authority and they may proceed  

with the agreement/contract in accordance with law.  

34. Needless to say that this judgment/order would have no bearing on the  

order passed by any court/tribunal or statutory authority independent of the  

proceedings taken in Writ Petition No. 2366 of 2007.  

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

cost.

……………………….J. (P.  

SATHASIVAM)

………………..……..J. New Delhi,           (Dr. B.S. CHAUHAN) September 6, 2010

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