2010 (9) TMI 1055 - SC - Indian Laws

Statutory order cannot be recalled or reviewed without provision; recall without hearing void, natural justice breached, orders unenforceable

Kalabharati Advertising Versus Hemant Vimalnath Narichania & Ors

SC held the HC erred in permitting a recall/review of a statutory order absent any provision for review, rendering that exercise void for want of ... Application for intervention and appropriate directions - Review in absence of statutory provisions - word `withdrawal' - violation of the principles of natural justice - Whether 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? - HELD THAT:- 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, 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. Thus, 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.2366 of 2007 or any statutory authority and they may proceed with the agreement/contract in accordance with law. The appeals are allowed as explained hereinabove. Issues Involved:1. Review in absence of statutory provisions.2. Case dismissed/withdrawn - effect on interim relief.3. Legal malice.Detailed Analysis:1. Review in Absence of Statutory Provisions:The judgment underscores the legal principle that a review application is not maintainable unless expressly permitted by statute or rules. The court referenced several cases including Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar and Harbhajan Singh v. Karam Singh, establishing that review is a statutory remedy and cannot be assumed as an inherent power. The court concluded that any order of review without statutory provision is ultra-vires, illegal, and without jurisdiction.2. Case Dismissed/Withdrawn - Effect on Interim Relief:The court emphasized that no litigant can benefit from the mere pendency of a case. Interim orders merge into the final order, and if the case is dismissed, the interim order is nullified automatically. This principle was supported by references to cases such as Ram Krishna Verma v. State of U.P. and South Eastern Coalfields Ltd. v. State of M.P. The court reiterated that any advantage gained from interim orders must be neutralized if the main case lacks merit or is withdrawn. The court also noted that the forum of the writ court should not be used solely for interim relief without proper adjudication of the main issue, citing State of Orissa v. Madan Gopal Rungta.3. Legal Malice:The judgment defined 'legal malice' as an act done wrongfully and willfully without reasonable cause, often for purposes foreign to those intended by law. The court cited several cases including Addl. Distt. Magistrate, Jabalpur v. Shivakant Shukla and State of A.P. v. Goverdhanlal Pitti, to explain that legal malice involves the misuse of statutory power. The court found that the Corporation's actions in withdrawing and reissuing orders without due process and without hearing the appellant and the Society constituted legal malice.Judgment Summary:The court concluded that the High Court erred in allowing the Corporation to recall its earlier order without statutory authority and without giving an opportunity of hearing to the appellant and the Society. The subsequent orders passed by the Corporation were deemed unenforceable and void due to lack of jurisdiction and violation of natural justice principles. The court highlighted that the withdrawal of the writ petition by respondent Nos. 1 to 5 nullified all interim and consequential orders, and the appellant should be allowed to continue its business with the Society unaffected by these orders. The appeals were allowed, and the court ordered that the appellant and the Society proceed as if no adverse orders had been passed. This judgment does not affect any independent orders passed by other courts or authorities. No costs were awarded.