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2018 DIGILAW 274 (UTT)

Uttarakhand Waqf Board v. Shahid

2018-05-18

K.M.JOSEPH, SHARAD KUMAR SHARMA

body2018
JUDGMENT : K.M. Joseph, J. 1. Since a common question of fact and law arises for consideration in these two appeals, we are disposing of the same by this common judgment. Writ Petition (M/S) No. 1033 of 2018 is the writ petition, from which both these appeals arise. 2. Special Appeal No. 306 of 2018 is filed by the 4th respondent in the Writ Petition. Special Appeal No. 333 of 2018 is filed by the 3rd respondent in the Writ Petition (hereinafter referred to as the “Waqf Board”). 3. The Writ Petition was filed seeking the following relief: “(i) Issue a writ, order or direction in the nature of mandamus commanding the respondent no. 1 to issue the letter of acceptance of contract in favour of petitioner being the second highest bidder in regard to shop no. 1 (main gate Nakkar Khana, Dargah Piran Kaliyar) as respondent no. 4 had failed to deposit 50% amount of his accepted bid within two days, rendering the contract cancelled.” 4. The 1st respondent in the Writ Petition was arrayed as SDM/Administrator Dargah Piran Kaliyar Sharif, Teshil Roorkee, District Haridwar. 5. According to the writ petitioner, Annexure 1 dated 15.3.2018 which was issued by the office of Waqf Dargah Piran Kaliyar, inviting tenders for settling the right to carry on the business from the shops of the said Dargarh. Further case of the writ petitioner is that originally the offer of the 4th respondent came to be accepted. But, he however, did not make the deposit of the amount within stipulated time in terms of the tender. This entitled the writ petitioner to be given the right being second highest bidder. The Writ Petition came to be filed on 11.4.2018. The case came up before the learned Single Judge of this Court on 13.4.2018 and the learned Single Judge passed an interim order, which reads as follows: “Shri Siddhartha Singh, Advocate, present for the petitioner. Shri Anurag Bisaria, Standing Counsel, present for the State/respondent No. 1. Ms. Nishat Intezar, Advocate, present for the Waqf Board. List this case on 16.04.2018 in the daily cause list. Till the next date of listing, status quo shall be maintained.” 6. Thereafter, on 16.4.2018, notice was issued to the 4th respondent in the writ petition and it was also directed that till the next date of listing, the respondents are restrained from proceeding any further in the matter. List this case on 16.04.2018 in the daily cause list. Till the next date of listing, status quo shall be maintained.” 6. Thereafter, on 16.4.2018, notice was issued to the 4th respondent in the writ petition and it was also directed that till the next date of listing, the respondents are restrained from proceeding any further in the matter. The interim order granted on 16.04.2018 was again continued on 24.4.2018 and still again on 26.4.2018. The matter came up thereafter on 03.5.2018 and, on 04.5.2018, the Writ Petition was allowed. The respondent (Waqf Board) was directed to forthwith give the offer to the writ petitioner, who was the second highest bidder. 7. The reasoning recorded by the learned Single Judge was that as per the mandatory conditions of the tender, the offer/opportunity had to be given to the second highest bidder, who was the writ petitioner; but, instead, what happened was that the successful bidder (4th respondent in the writ petition) though failed to deposit the 50 per cent amount within the stipulated time, the offer was not given to the writ petitioner and instead further time was granted to the 4th respondent by the Joint Magistrate, Roorkee to deposit the amount. It is stated that the 4th respondent was permitted to deposit the sum of Rs. 96,00,393/- in two or three installments by 12.04.2018. It was further held that granting further time to the respondent no. 4 to deposit the amount in installments is totally arbitrary and illegal as the same is in violation of the mandatory conditions of the bidding as there was no such power vested granting extension of time for deposit. It is this judgment, which is subject matter of the appeals. 8. We heard Shri D.S. Patni, learned counsel for the appellants in SPA No. 306 of 2018. We also heard Shri D. Barthwal, Advocate for the Waqf Board, i.e. the appellant in SPA No. 333 of 2018. We also heard Shri Siddhartha Singh, Advocate for respondent No. 1 (writ petitioner) and Shri Pradeep Hairiya, learned Standing Counsel on behalf of the State. 9. The case of the appellants would appear to be in short as follows: The writ petition itself was not maintainable. We also heard Shri Siddhartha Singh, Advocate for respondent No. 1 (writ petitioner) and Shri Pradeep Hairiya, learned Standing Counsel on behalf of the State. 9. The case of the appellants would appear to be in short as follows: The writ petition itself was not maintainable. Because, the Dargah was not an authority under Article-12 of the Constitution, and also as the matter is contractual in nature and, therefore, it is contended that the Writ Court could not have entertained the writ petition, having regard to the line of decisions rendered by the Hon’ble Apex Court taking the said view for e.g. in the case of Joshi Technologies International Inc. vs. Union of India, 2015 (7) SCC 728 . It is further contended that the court may also take note of the fact that the order of extending the time for depositing the installments was produced along with the counter affidavit for first time and the contract was, in fact, awarded in favour of the 4th respondent in the Writ Petition on 16.4.2018. The said documents have not been challenged by the writ petitioner. Therefore, with the relief as sought by the writ petitioner, and in absence of complete relief which ought to have been prayed for, the learned Single Judge could not have granted any relief to the writ petitioner. It is also submitted in particular by Shri D. Barthwal, learned counsel for the Waqf Board, that what is essentially involved is a question relating to getting higher revenue for the Waqf Board. The amount, which was offered by the writ petitioner, was Rs. 10 lacs less than the amount, which was offered by the 4th respondent. Ultimately, the beneficiary of this higher amount is the Waqf in question. It is also the case of the appellants that no case is made out for interference in Article 226 of the Constitution. 10. Per contra, Shri Siddhartha Singh, learned counsel for the writ petitioner, would submit that there is no need to challenge the decision to award the contract in favour of the 4th respondent. This is for the reason, he points out, that an order of status quo was passed, as already noticed. The decisions, which ordinarily should have been impugned, are in the teeth of the judgment passed by the Court. Therefore, these decisions are to be disregarded being nullities. This is for the reason, he points out, that an order of status quo was passed, as already noticed. The decisions, which ordinarily should have been impugned, are in the teeth of the judgment passed by the Court. Therefore, these decisions are to be disregarded being nullities. He points out the distinction between a “void decision” and “voidable decision.” He drew our attention in this regard to the judgment rendered by Hon’ble Apex Court in the case of Dhurandhar Prasad Singh vs. Jai Prakash University and Others, (2001) 6 SCC 534 . This is besides referring to the judgment of the learned Single Judge as His Lordship then was in the case of Smt. Saroj Goyal and Others vs. Munshi Lal and Others, (2003) 1 ARC 545. As far as reluctance to interfere in a contractual matter is concerned, he sought support from the judgments of the Hon’ble Apex Court for a contrary position reported in ABL International Ltd. and Another vs. Export Credit Guarantee Corporation of India Ltd. and Others, (2004) 3 SCC 553 as also in the case of Satyabrata Biswas and Others vs. Kalyan Kumar Kisku and Others, 1994 (2) SCC 266 . He would also submit for acceptance decision in the case of All Bengal Excise Licensees’ vs. Raghabendra Singh and Others, (2007) 11 SCC 374 . 11. The learned Standing Counsel was asked to get instruction as to whether the order of status quo passed on 13.4.2018 was communicated to the 1st respondent. He would submit that though in his records there is an endorsement to communicate, in point of fact, it was not communicated on 13.4.2018. 12. The questions which would emerge for our consideration are whether, in the nature of transaction, writ petition under Article 226 would be maintainable? And what is the position of the Sub-Divisional Magistrate, who was In-charge of the Waqf in question. Most importantly, however, the question also arises as to what is the effect over the controversy of the writ petitioner not putting in issue the decision taken to extend the time and to award the contract in favour of the 4th respondent. 13. We would think that, in this case, it may not be necessary for us to dwell upon and pronounce on the first two questions as such. It is true that power under Article 226 is wide. 13. We would think that, in this case, it may not be necessary for us to dwell upon and pronounce on the first two questions as such. It is true that power under Article 226 is wide. In fact, it is, in one sense, wider than the power under Article 32 of the Constitution. This is for the reason that, unlike Article 32, it is open to the Writ Court to issue not only writs mentioned therein, but also orders, direction in the nature of a writ to any person or the authority. Such power can be exercised not only for enforcement of fundamental rights but also for enforcement of any other right. The power of the Supreme Court, on the other hand, is confined to cases relating to enforcement of fundamental rights. Though it is true that the power under Article 226 of the Constitution of India is wider than the power under Article 32, but by way of exercise of self-imposed limitations, various rules have been evolved by the Courts including relegating a party to avail alternate remedies in appropriate case. A writ of mandamus is undoubtedly of the widest amplitude. With the caveat no doubt that the court bears in mind that, by its interference, it does not produce manifest injustice to the parties to the lis. Present a legal right with the petitioner and available a public duty with the answering respondent and, even if the latter is a private body, a writ of mandamus would lie to remedy an injustice. 14. Having made these prefatory remarks, we will pass on to consider the question, which is pertinent to the facts of this present case. We have noticed the relief sought by the writ petitioner. He has sought a writ of mandamus. There is considerable controversy, in fact, as to whether, in a contractual matter, it is open to a party to approach the Court for enforcing a right, which is alleged to be inherent under the terms of the contract? Whether the performance of duty in this case amounts to be a public duty, is a matter which would necessarily arise. There is considerable controversy, in fact, as to whether, in a contractual matter, it is open to a party to approach the Court for enforcing a right, which is alleged to be inherent under the terms of the contract? Whether the performance of duty in this case amounts to be a public duty, is a matter which would necessarily arise. At this juncture, it is necessary to notice that though after the issuance of Annexure 1, a corrigendum was issued by the Sub-Divisional Magistrate, he must answer to a question as to what is the role of the official concerned in the capacity of Sub-Divisional Magistrate in a Waqf. The learned counsel for the writ petitioner to clarify the status of Sub-Divisional Magistrate over the controversy handed over a copy of the order passed by this Court on 05.01.2012 in Writ Petition (PIL) No. 87 of 2011. It is in terms of the said order that the Divisional Magistrate or his nominee were ordered to authorize expenditure from the funds of the Waqf. This is the role of the Sub-Divisional Magistrate in this case. 15. Maintainability of the writ petition must necessarily also be decided with reference to the answering respondent answering the description of public authority. This would be particularly relevant, with reference to what is sought in writ of certioari or in a writ of mandamus, under what circumstances will lie, as is well established, mandamus would lie even against a private party. The source of the right for a party can be a statute, a contract or even a custom and usages as reported in the case of Anandi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others vs. V.R. Rudani and Others, 1989 2 SCC 691 . But, in this case, we must examine, whether we should go into these aspects in further detail; though arguments have been addressed that the Court’s power is limited in a controversy of this nature as, in substance, the petitioner is seeking to enforce a contractual right emanating from the terms of the tender conditions. 16. In this case, the writ petition was filed on 13.4.2018. Petitioner obtained the interim order of status quo, which we have noticed 13.4.2018 was a Friday. 16. In this case, the writ petition was filed on 13.4.2018. Petitioner obtained the interim order of status quo, which we have noticed 13.4.2018 was a Friday. On 15.4.2018, namely, a Sunday, which is a public holiday, it appears that the Sub-Divisional Magistrate has proceeded to grant extension of time to the 4th respondent to deposit the amount. It is a case of the respondent that on the next day i.e. on 16.4.2018 in the forenoon session, the contract for the year ending on 31.3.2019 was awarded in favour of the 4th respondent. The writ petition came up, as we have noticed, on 04.5.2018 and the learned Single Judge allowed the Writ Petition. 17. The question, which would arise and would be vital being the most important aspect in this case is whether, with the prayer of the writ petitioner and the relief sought, the learned Single Judge is justified in granting the same. There is no dispute that neither the extension granted to the 4th respondent to deposit the amount nor the award of contract in his favour has been put to challenge. In this context, it is relevant to note that the 4th respondent had filed a counter affidavit bringing on record the fact of extension of time to deposit the amount and also the award of the contract in his favour. The extension was granted at the request of the 4th respondent. In fact, the 4th respondent has a case that not only in this case, but in various such other contractual matters also, the SDM has granted extension of time to deposit the amount and hence no fault could be found in permitting extension of time to deposit. Suffice it to notice that apparently these documents were not challenged. It is further relevant to notice that the writ petitioner did not file a rejoinder affidavit rebutting the statements made in the counter affidavit, particularly, in paragraph-5 of the counter affidavit that the writ petition itself is not maintainable, besides the allegation about the award of the contract being made. 18. When this aspect with regard to plea in counter was put to Shri Siddhartha Singh, learned counsel for the writ petitioner, he enlisted in his support the fact of the passing of the order of status quo. His contention is that anything which transpired contrary to the status quo order must be disregarded as a nullity. 18. When this aspect with regard to plea in counter was put to Shri Siddhartha Singh, learned counsel for the writ petitioner, he enlisted in his support the fact of the passing of the order of status quo. His contention is that anything which transpired contrary to the status quo order must be disregarded as a nullity. It is described as void as against voidable and, therefore, the writ petitioner was free not to challenge those orders and yet claim the benefit of the relief sought in the writ petition as was granted by the learned Single Judge. 19. In this regard, as we have noticed, reliance is placed by the learned counsel for the respondent/writ petitioner on the judgment in the case of Dhurandhar Prasd Singh vs. Jai Prakash University and Others (Supra). Therein, the question which actually arose was regarding the objections relating to executability of a decree u/s 47 of the Civil Procedure Code. The decree was passed against the governing body of a college and, during the pendency of the suit, the college became the constituent of a university. The plaintiff did not seek leave of the Court to continue the suit against the university. The question which arose was as to whether this omission by the appellant/plaintiff resulted in the decree becoming void ab initio so as to justify resort to Section 47 of Code of Civil Procedure. The Court answered in the negative and held inter-alia as follows: “16. The expressions void and voidable have been subject matter of consideration before English Courts times without number. In the case of Durayappah vs. Fernando and Others, (1967) 2 All Eng. LR 152, the dissolution of municipal council by the minister was challenged. Question had arisen before the Privy Council as to whether a third party could challenge such a decision. It was held that if the decision was complete nullity, it could be challenged by anyone, anywhere, The Court observed at page 158 E-F thus:- “The answer must depend essentially on whether the order of the Minister was a complete nullity or whether it was an order voidable only at the election of the council. It was held that if the decision was complete nullity, it could be challenged by anyone, anywhere, The Court observed at page 158 E-F thus:- “The answer must depend essentially on whether the order of the Minister was a complete nullity or whether it was an order voidable only at the election of the council. If the former, it must follow that the council is still in office and that, if any councillor, ratepayer or other person having a legitimate interest in the conduct of the council likes to take the point, they are entitled to ask the court to declare that the council is still the duly elected council with all the powers and duties conferred on it by the Municipal Ordinance.” 22. Thus the expressions "void and voidable" have been subject matter of consideration on innumerable occasions by courts. The expression "void" has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g. may be transaction against a minor without being represented by a next friend. Such a transaction is good transaction against the whole world. So far the minor is concerned, if the decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g. if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as apparent state of affairs is real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is gorge and fabricated and a declaration to that effect is given a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. If it is proved that the document is gorge and fabricated and a declaration to that effect is given a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable.” 20. Before we pronounce on this aspect, we must proceed to consider yet another judgment of the learned Single Judge of the Allahabad High Court in Smt. Savitri Devi vs. Civil Judge (Junior Division), Gorakhpur and Others, 2003 (1) ARC 545 on which reliance is placed by respondent/writ petitioner. Therein, too the matter arose from a civil suit. There was an ex-parte interim order restraining alienation of any part of the property. It was alleged that alienation, however, was done violating the direction given by the interim order. In the course of the same, the learned Single Judge, as His Lordship then was, proceeded to hold inter-alia as follows: “9. Admittedly, there was an order dated 18.8.1992, for both the parties not to alienate any part of the property in dispute. Respondent No. 3 had executed two sale deeds in favour of respondent Nos. 4 to 6. It is settled legal proposition that sale deeds so executed are a nullity as having been executed in disobedience of the interim order of the Court. In Mulraj vs. Murti Raghunathji Maharaj, AIR 1967 SC 1386 , the Hon'ble Supreme Court considered the effect of action taken subsequent to passing of an interim order in its disobedience and held that any action taken in disobedience of the order passed by the Court would be illegal subsequent action would be nullity. 10. Similar view has been reiterated in Surajit Singh and Others vs. Harbans Singh and Others, 1995 (6) SCC 50 : 1995 SC FBRC 530; Government of A.P. vs. Gudepu Sailoo and Others, 2000 (4) SCC 625 ; Hansraj Tirathram vs. Administrator, Municipality Jammu, AIR 1963 Kerala 18. Finally, the following view was taken in paragraph 26 of the judgment:- “26. To sum up the case, the sale deeds allegedly executed by the respondent No. 3 in favour of respondent Nos. Finally, the following view was taken in paragraph 26 of the judgment:- “26. To sum up the case, the sale deeds allegedly executed by the respondent No. 3 in favour of respondent Nos. 4 to 6 are nullity as had been executed in disobedience of the interim order passed by the trial court on 18.8.1992. Secondly, respondent Nos. 4 to 6 could not be in possession of the land and there has been no partition by metes and bounds between co-sharers. If they are in possession, it is to be ignored, and thirdly, as the alleged sale deeds have to be ignored, the learned court below ought to have attached the entire property which, including the land sold vide two sale deeds.” 21. Shri Siddhartha Singh, learned counsel for the writ petitioner would, therefore, contend that the decision to award the contract in favour of the 4th respondent in this case should be treated as a nullity. In this regard, he would also point out that on 13.04.2018, when the interim order of status quo was passed. The Waqf Board was represented through counsel. The Government Advocate took notice on behalf of the 1st respondent and it is after this that the decision was taken for extending the time for depositing the amount and for execution of the contract, which is liable to be ignored by the court, and the relief was granted to the writ petitioner as he is otherwise the person entitled in accordance to tender condition for award of contract. He stresses that, in terms of the tender, the procedure adopted by the 1st respondent by granting time to the 4th respondent, when there was no provision to grant extension was clearly illegal and the writ petitioner, who was the second highest bidder, was entitled to get the relief. 22. Learned counsel for the respondent/writ petitioner also drew our attention to the judgment rendered in All Bengal Excise Licensees vs. Raghabendra Singh and Others (Supra). Therein, an injunction order was passed on 04.01.2005 and it was subsequently extended. The respondents carried out an advertisement for the finalization of certain tenders in violation of the orders passed by Civil Court. The Hon’ble Apex Court proceeded to refer to earlier authorities and held as follows: “27. Therein, an injunction order was passed on 04.01.2005 and it was subsequently extended. The respondents carried out an advertisement for the finalization of certain tenders in violation of the orders passed by Civil Court. The Hon’ble Apex Court proceeded to refer to earlier authorities and held as follows: “27. Even assuming that there was any scope for bona fide misunderstanding on the part of the respondents, once it was found that the respondent had disobeyed the specific order passed earlier by the Court, the High Court should have directed the contemnors to undo the wrong committed by them which was done in clear breach of the order of the Court by restoring the status quo ante by cancelling the lottery wrongfully held by them. The learned Judge found that the respondent-contemnors had held the lottery in violation of the Court's order and the results of the said lottery should not be permitted to take effect and should be treated as unlawful and invalid for the purpose of grant of license. The learned Single Judge for the purpose of upholding the majesty of law and the sanctity of the solemn order of the court of law which cannot be violated by the executive authority either deliberately or unwittingly should have set aside the lottery held and should not have allowed the respondents to gain a wrongful advantage thereby. 28. In our opinion, a party to the litigation cannot be allowed to take an unfair advantage by committing breach of an interim order and escape the consequences thereof. By pleading misunderstanding and thereafter retaining the said advantage gained in breach of the order of the Court and the wrong perpetrated by the respondent-contemnors in contumacious disregard of the order of the High Court should not be permitted to hold good. In our opinion, the impugned order passed by the High court is not sustainable in law and should not be allowed to operate as a precedent and the wrong perpetrated by the respondent- contemnors in utter disregard of the order of the High Court should not be permitted to hold good.” 23. Therefore, he would submit that having regard to the conduct of the respondents in this case, it must be treated that the award of the contract is a nullity and having regard to the case of the writ petitioner having being made out otherwise he was entitled to the relief. Therefore, he would submit that having regard to the conduct of the respondents in this case, it must be treated that the award of the contract is a nullity and having regard to the case of the writ petitioner having being made out otherwise he was entitled to the relief. 24. Since there is considerable reference to the earlier judgment of Hon’ble Apex Court, we deem it appropriate to refer to the same. In Mulraj vs. Murti Raghunathji Maharaj, AIR 1967 SC 1386 , which, in fact, has been relied on in the judgment All Bengal Excise Licensees vs. Raghabendra Singh and Others (Supra), the Hon’ble Apex Court had an occasion to consider the effect of the order of stay granted vis-à-vis an order of injunction. The Court inter-alia held as follows: “8. We are of opinion that the view taken in Bessesswari Chowdhurany's case (1896) 1 C.W.N. 226 is the correct one. An order of stay in an execution matter is in our opinion in the nature of a prohibitory order and is addressed to the court that is carrying out execution. It is not of the same nature as an order allowing an appeal and quashing execution proceedings. That kind of order takes effect immediately it is passed, for such an order takes away the very jurisdiction of the court executing the decree as there is nothing left to execute thereafter. But a mere order of stay of execution does not take away the jurisdiction of the court. All that it does is to prohibit the court from proceeding with the execution further, and the court unless it knows of the order cannot be expected to carry it out. Therefore, till the order comes to the knowledge of the court its jurisdiction to carry on execution is not affected by a stay order which must in the very nature of things be treated to be a prohibitory order directing the executing court which continues to have jurisdiction to stay its hand till further orders. It is clear that as soon as a stay order is withdrawn, the executing court is entitled to carry on execution and there is no question of fresh conferment of jurisdiction by the fact that the stay order has been withdrawn. The jurisdiction of the court is there all along. It is clear that as soon as a stay order is withdrawn, the executing court is entitled to carry on execution and there is no question of fresh conferment of jurisdiction by the fact that the stay order has been withdrawn. The jurisdiction of the court is there all along. The only effect of the stay order is to prohibit the executing court from proceeding further and that can only take effect when the executing courts has knowledge of the order. The executing court may have knowledge of the order on the order being communicated to it by the court passing the stay order or the executing court may be informed of the order by one party or the other with an affidavit in support of the information or in any other way. As soon therefore as the executing court has come to know of the order either by communication from the court passing the stay order or by an affidavit from one party or the other or in any other way the executing court cannot proceed further and if it does so it acts illegally. There can be no doubt that no action for contempt can be taken against an executing court, if it carries on execution in ignorance of the order of stay and this shows the necessity of the knowledge of the executing court before its jurisdiction can be affected by the order. In effect therefore a stay order is more or less in the same position as an order of injunction with one difference. An order of injunction is generally issued to a party and it is forbidden from doing certain acts. It is well-settled that in such a case the party must have knowledge of the injunction order before it could be penalised for disobeying it. Further it is equally well-settled that the injunction order not being addressed to the court, if the court proceeds in contravention of the injunction order, the proceedings are not a nullity. In the case of a stay order, as it is addressed to the court and prohibits it from proceeding further, as soon as the court has knowledge of the order it is bound to obey it and if it does not, it acts illegally, and all proceedings taken after the knowledge of the order would be a nullity. In the case of a stay order, as it is addressed to the court and prohibits it from proceeding further, as soon as the court has knowledge of the order it is bound to obey it and if it does not, it acts illegally, and all proceedings taken after the knowledge of the order would be a nullity. That in our opinion is the only difference between an order of injunction to a party and an order of stay to a court. In both cases knowledge of the party concerned or of the court is necessary before the prohibition takes effect. Take the case where a stay order has been passed but it is never brought to the notice of the court, and the court carries on proceedings in ignorance thereof. It can hardly be said that the court has lost jurisdiction because of some order of which it has no knowledge. This to our mind clearly follows from the words of O. XLI r. 5 of the Code of Civil Procedure which clearly lays down that mere filing of an appeal does not operate as stay of proceedings in execution, but the appellate court has the power to stay the execution. Obviously when the appellate court orders stay of execution the order can have affect only when it is made known to the executing court. We cannot agree that an order staying execution is similar to an order allowing an appeal and quashing execution proceedings. In the case where the execution proceeding is quashed, the order takes effect immediately and there is nothing left to execute. But where a stay order is passed, execution still stands and can go on unless the court executing the decree has knowledge of the stay order. It is only when the executing court has knowledge of the stay order that the court must stay its hands and anything it does thereafter would be a nullity so long as the stay order is in force. 10. As we have already indicated, an order of stay is as much a prohibitory order as an injunction order and unless the court to which it is addressed has knowledge of it, it cannot deprive that court of the jurisdiction to proceed with the execution before it. 10. As we have already indicated, an order of stay is as much a prohibitory order as an injunction order and unless the court to which it is addressed has knowledge of it, it cannot deprive that court of the jurisdiction to proceed with the execution before it. But there is one difference between an order of injunction and an order of stay arising out of the fact that an injunction order is usually passed against a party while a stay order is addressed to the court. As the stay order is addressed to the court, as soon as the court has knowledge of it, it must stay its hand; if it does not do so, it acts illegally. Therefore, in the case of a stay order as opposed to an order of injunction, as soon as the court has knowledge of it, it must stay its hand and further proceedings are illegal; but so long as the court has no knowledge of the stay order it does not lose the jurisdiction to deal with the execution which it has under the Code of Civil Procedure.” 25. Thereafter, undoubtedly, the Court proceeded to hold that the Court which is carrying on execution is not deprived of the jurisdiction, as the moment a stay order was passed, even though it had no knowledge of it, and it does not mean that when the court gets knowledge of it, it is powerless to undo any possible injustice that might have been caused to the party due to violating the interim injuction. This power was held vested under the provision of Section 151 CPC. The Court also held inter-alia as follows: “We are of opinion that S. 151 of the Code of Civil Procedure would always be available to the court executing the decree, for in such a case, when the stay order is brought to its notice, it can always act under S. 151, and set aside steps taken between the time the stay order was passed and the time it was brought to its notice, if that is necessary in the ends of justice and the party concerned asks it to do so.” 26. We must also notice a recent decision of the Hon’ble Apex Court in the case of State of Orissa and Others vs. Mesco Steels Limited and Another, (2013) 4 SCC 340 . We must also notice a recent decision of the Hon’ble Apex Court in the case of State of Orissa and Others vs. Mesco Steels Limited and Another, (2013) 4 SCC 340 . In para 21, it has been held as under:- “21. In the light of what we have said while deciding question No. 1 above, this question should not hold us for long. It is true that the High Court had by an interlocutory order directed the parties to maintain status quo, but whether the said order had the effect of preventing the State Government from issuing a show cause notice was arguable. The issue of show cause notice did not interfere with the status quo. It simply enabled the Respondent-company to respond to the proposed action. Be that as it may, once the show cause notice was issued, the High Court could have directed the Respondent-company to respond to the same and disposed of the writ petition reserving liberty to it to take recourse to such remedy as may have been considered suitable by it depending upon the final order that the Government passed on the said notice. What was significant was that the Respondent-company had not assailed the validity of the show cause notice on the ground of jurisdiction or otherwise. If the validity of the show cause notice was itself in question on the ground that the Government had no jurisdiction to issue the same, nothing prevented the company from maintaining a writ petition and challenging the notice on that ground. The High Court would in that event have had an opportunity to examine the validity of the notice. In the absence of any such challenge the High Court could not simply ignore the notice even if it was issued in breach of the order passed by the Court. It was one thing to prevent further steps being taken pursuant to the notice issued by the Government but an entirely different thing to consider the notice to be non est in the eye of law. The High Court could have taken the show cause notice as a reason to relegate the parties to a procedure which was just and fair and in which the Respondent could urge all its contentions whether on facts or in law. Our answer to question No. 2 is, therefore, in the negative.” 27. The High Court could have taken the show cause notice as a reason to relegate the parties to a procedure which was just and fair and in which the Respondent could urge all its contentions whether on facts or in law. Our answer to question No. 2 is, therefore, in the negative.” 27. In the light of these judgments, now we must address the question as to whether, in the first place, the decision taken to award the contract based on the extension of time granted on the request of the 4th respondent could be described as a nullity or a void decision. There are various niceties about the distinction between a void and a voidable decision. Essentially, the question as to whether it is void or voidable would primarily depend upon the gravity of the defect attached to the order passed. No doubt, in a case an order suffers for want of inherent jurisdiction it would render the decision void. A decision may be illegal but every decision which is illegal is not void. A decision which is voidable must be challenged and its voidability is to be tested and settled by Court. In fact, even a void decision may have to be challenged before the competent court as reported in State of Uttarakhand and Another vs. Keshavanand Jhaldiyal, 2014 (2) U.D. 485 . In the instant case, it is difficult for us to describe the order as being void. What is involved, accepting the case of the writ petitioner, is a departure from the terms of the tender. Under the terms of the tender notice, undoubtedly, the highest bidder was to be awarded the contract. He was supposed to pay the money within a certain time. If he did not pay the amount within a certain time, it was provided further that the tender was to be cancelled and it was to be awarded to the next highest bidder. Instead, as noticed by the learned Single Judge, the Sub Divisional Magistrate, who was In-charge of the Waqf as an administrator and was having the power of the Waqf as already indicated, proceeded to grant an extension, on the request of the 4th respondent, to pay the amount in question and this has resulted in denial of the right which the writ petitioner claims in himself to have accrued for being awarded the contract being the second highest bidder. On this plea as agitated, by respondent/writ petitioner, we find it hard to describe it as a void decision. Even if it is treated as a void decision, based on the fact being in violation of interim order of status quo by this Court but having regard to the decisions of the Hon’ble Apex Court followed by this Court in State of Uttarakhand and Another vs. Keshavanand Jhaldiyal (Supra), it is not open to a party to avoid challenging it, ignore it and, yet, get around it and seek reliefs otherwise against an order which is based on the unchallenged orders. Further question for consideration is whether it could be treated as a nullity in the sense that the decisions, which were rendered had displayed defiance of the order of status quo passed by this Court on 13.04.2018. In this case, if this question is put in issue, the court would necessarily have to go through the terms of the tender, terms of the contract, terms of the bid (clause 2) for adjudging that the action of the authority was illegal. In this regard, we have already noticed the state of the law. An order of stay, which was passed, must have been communicated. In the case of injunction also, unless the order is communicated to the party or the party comes to have knowledge of it by any other means, it cannot be said that any action is in violation of the same. We have noticed the decision contained in Mulraj vs. Murti Raghunathji Maharaj (Supra). This in fact as we have referred to was followed in All Bengal Excise Licensees’ vs. Raghabendra Singh and Others (supra) also. Incidentally, we may notice that in All Bengal Excise Licensees’ vs. Raghabendra Singh and Others (supra), while in para 4 of the judgment, the Court best referred to the fact that the order was passed in the presence of the counsel (primarily Government Counsel); subsequent paragraphs make it abundantly clear that, in the facts, the appellant party therein had taken efforts and succeeded in bringing to the answering respondent’s notice the order’s which were passed from time to time. It was a case where action was in utter defiance of the orders of the court after knowledge by service of order that the advertisement in question, which was impugned, was issued. It was a case where action was in utter defiance of the orders of the court after knowledge by service of order that the advertisement in question, which was impugned, was issued. In the conspectus of the said facts, the court proceeded to do what it did. We too do not deny the power to ourselves to undo things in an appropriate case that may have been done in defiance of the court’s order. As noticed, defiance would come into play only when the party against whom the charge is levelled had knowledge of the order. 28. Therefore, in this case, we are of the view that until and unless we can impute notice of the order of status quo dated 13.04.2018 to the 1st respondent proceeding on the basis that he is a public officer, we cannot possibly treat the order as a nullity. If the order is not treated as a nullity or a void order, the writ petitioner would be duty bound to challenge the order. 29. In this case, as already noticed, on instructions, the learned Standing Counsel would submit that the order of status quo was not communicated by him or by the office of Standing Counsel to the Sub Divisional Magistrate. The case came up for hearing on 13.04.2018 and the order was passed, apparently, in the post lunch session. The decision to give the extension took place on 15.04.2018 and on the very next day i.e. on 16.04.2018, the contract was awarded. Notice was issued to the 4th respondent on 16.04.2018. Apparently, it is possible that the order was extended on 16.04.2018 without knowledge of the fact that the contract already stood awarded. 30. In fact, the learned Single Judge has not approached the issue from this angle and has proceeded to grant the relief without noticing the fact of absence of appropriate relief challenging the decision which admittedly was brought to be knowledge of writ petitioner, by specific pleading in the writ petition. As we have already noticed, there is no rejoinder affidavit filed. The case was not set up before learned Single Judge, developed argued and proved that the awarding of the contract took place in defiance of the order of status quo and this aspect has not engaged the mind of the learned Single Judge. It is true that the counsel for the Waqf Board was present on 13.04.2018 also. The case was not set up before learned Single Judge, developed argued and proved that the awarding of the contract took place in defiance of the order of status quo and this aspect has not engaged the mind of the learned Single Judge. It is true that the counsel for the Waqf Board was present on 13.04.2018 also. An attempt was made by Shri Siddhartha Singh also to point out that the Waqf Board is a body which is created under the Act which is traceable to the legislative power of Parliament under the concurrent list and, therefore, it is a Public Body and the Court may notice this aspect. No doubt, this was an attempt to make the writ petition itself maintainable. An argument was even raised that a Waqf is an authority under Article 12 of the Constitution of India. 31. The presence of the counsel for the Waqf Board also to our mind may not be sufficient to impute notice to the Sub Divisional Magistrate (1st respondent)/Administrator, who was given the powers, as has already been noticed, in respect of a Waqf. It is most relevant in this context to notice that though the order was passed on 13.04.2018, on the petition filed by the writ petitioner admittedly he did not bring the order of this Court to the notice of the Sub Divisional Magistrate/Administrator till 17.04.2018, even according to Shri Siddhartha Singh. Which means that as on 16.04.2018, when the contract was awarded by the 1st respondent, we cannot hold conclusively that the status quo order was served on him. If that be so, we must necessarily take the view that the decision to award the contract in favour of the 4th respondent on 16.04.2018, cannot be treated as a nullity due to subsistence of status quo order which was never communicated to respondent no. 2. It was certainly open to the petitioner, upon being apprised about the said developments through the counter affidavit of the 4th respondent, to seek an appropriate amendment in the writ petition or even to file a fresh writ petition. The petitioner did not do either. 2. It was certainly open to the petitioner, upon being apprised about the said developments through the counter affidavit of the 4th respondent, to seek an appropriate amendment in the writ petition or even to file a fresh writ petition. The petitioner did not do either. We have noticed, in particular, the effect of the judgment of Hon’ble Apex Court in the case of State of Orissa and Others vs. Mesco Steels Limited and Another (Supra) where, though, as Shri Siddhartha Singh points out, the Court took the view that show cause notice was not affected by the status quo order, the court proceeds to hold that, even if show cause is in violation of the status quo order, the show cause notice in the said case must necessarily have been challenged. In this case too, there is an aspect relating to the difficulty in imputing notice to the 1st respondent. Therefore, we would think that in this case, the learned Single Judge erred in granting the relief without the writ petitioner calling in question the order extending the time for depositing the award and the award of the contract in favour of the 4th respondent which has resulted into a concluded contract. The relief as sought in the writ petition could not have been granted after the award of the contract in favour of the 4th respondent not being challenged. In fact, looking to the findings of the judgment of learned Single Judge under challenge in appeal before the learned Single Judge also, the debate did not centre around the effect of the status quo and its impact or rather its impact on the award of the contract and, yet, the learned Single Judge granted the relief in the manner as was done. 32. It may not be entirely out of place also to notice that, in this case, granting of time by 1st respondent, to the 4th respondent in substance has resulted in the Waqf being assured on a sum of Rs. 10.00 lacs more. We make this observation because the court cannot be oblivious to consideration of justice. By accepting the case of the writ petitioner, in fact, the Waqf Board loses nearly Rs. 10 lacs by way of revenue. 10.00 lacs more. We make this observation because the court cannot be oblivious to consideration of justice. By accepting the case of the writ petitioner, in fact, the Waqf Board loses nearly Rs. 10 lacs by way of revenue. No doubt, we do not wish to rest our conclusion on this basis because we are duty bound also to consider the aspect relating to violation of rule of law and we should not be treated as having pronounced that it will be open to the public authority to violate the rule of law on the basis that it will fetch the Waqf an extra amount of money. Resultantly, the appeals are allowed. The judgment of the learned Single Judge will stand set aside. The Writ Petition will stand dismissed. However, there would be no order as to costs.