TMI Blog2010 (9) TMI 1055X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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. Anahita Peadoin against the Municipal Corporation of Greater Mumbai pertaining to the grant of permission for hoardings in Mumbai alleging various viola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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 (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 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attle has been lost at the end. This cannot be 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...... 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. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 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 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 chang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ef 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 Petition No.236 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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