( 1 ) D.B. Civil Special Appeal No.655/1996 (State of Raj & Anr. Vs. M/s. Jagram Dharma Ram) Date : 10.07.2007 HON'BLE MR. P.B.MAJMUDAR, J. HON'BLE MR. MUNISHWAR NATH BHANDARI, J. Mr. B.L. Bhati for the appellants-State. Mr. Amit Dave for respondent. REPORTABLE BY THE COURT: (PER HON'BLE MAJUMDAR,J.) By filing this appeal, the appellants State of Rajasthan as well as Executive Engineeer, Indira Gandhi Nahar Pariyojana, Jaisalmer have challenged the order of the learned Single Judge dated 22.8.1996 passed in S.B. Civil Writ Petition No.2593/1996. The respondent No.1 herein was awarded a contract in connection with construction of distributory canals cum sub-canals of the main canal.The tender of respondent No.1 was accepted by the Department. However, according to the appellants herein, respondent No.1 had not shown any interest in commencement of the work and ultimately the Superintending Engineer passed order dated 16.07.1996 by which it was ordered that 2 % earnest money and 5 % performance guarantee is to be recovered from respondent No.1-contractor. It was further ordered that work in ( 2 ) question is to be given to the other agency at the cost of respondent No.1. Respondent No.1 herein challenged the said decision by filing the writ petition before the learned Single Judge being Civil Writ Petition No.2593/1996. Learned Single Judge came to the conclusion that since respondent No.1(original petitioner before the learned Single Judge) was required to approach the committee constituted under Section 23 of the Contract Agreement and in view of the arbitration clause in the agreement, the petition cannot be entertained as efficacious alternative remedy is available to the petitioner. Learned Single Judge however granted interim relief in favour of the present respondent restraining the appellant from implementing the order dated 16.07.1996 which was annexed as Annexure-8 to the petition till the pendency of the arbitration proceedings before the Committee constituted under clause 23 of the Contract Agreement. It is required to be noted that so far as dismissal of the writ petition is concerned, the original petitioner has not ( 3 ) challenged the same by filing any appeal. In our view, the order of the learned Single Judge regarding grant of interim relief to the present respondent is not sustainable. It is required to be noted that the respondent had filed the petition under Article 226 of the Constitution before this Court challenging the order of the Superintending Engineer. It is not a case wherein the respondent had approached the Competent Court under Section 9 of the Arbitration and Conciliation Act, 1996 for interim measures. In the writ petition under Article 226 of the Constitution, when the decision of the authority was challenged on merits, the learned Single Judge granted interim relief while dismissing the writ petition on the ground of alternative remedy. The order of the learned Single Judge regarding grant of interim relief in the operative part of the order is not sustainable in the eye of law. It is also required to be note that the petition was dismissed summarily and no notice was issued to the present appellant. When the petition is dismissed summarily, the Court cannot pass any order which affects the rights of the other side, without giving notice to the other side. Learned counsel for the respondent has submitted that ( 4 ) he is not in postion to state whether his client has taken any step in connection with reference of dispute to the Arbitratror under Clause 23 of the Contract Agreement. Learned consel for the appellant submitted that as per his instruction no steps have been taken by the respondent till today and even he has not appraoched the Arbitrator for arbitration proceedings under Clause 23 of the Contract Agreement. As pointed out earlier when the learned Single Judge dismissed the petition, there is no question of granting any interim relief in favour of the original petitioner and that too without giving notice to the other side i.e. present appellant. By virtue of the aforesiad order, respondent No.1 is enjoying the interim relief since more than 11 years. It is required to be noted that this was not a case wherein the original petitioner had move the Court under Section 9 of the Arbitration and Concilliation Act, 1996. It is required to be noted that when the petition is dismissed summarily, there is no question of granting any interim relief in favour of respondent No.1. It is pointed out that respondent No.1 ( 5 ) thereafter had not taken steps regarding raising the dispute before the Arbitrator. Even otherwise, before granting such type of interim relief at the time of dismissing the writ petition, no order could have been passed without hearing the present appellants. In our view, the learned Single Judge has committed error of law in granting interim relief in favour of respondent No.1 at the time of dismissing the petition. Learned counsel for the respondent is not in a position to substantiate any argument justifying the said order. Considering the aforesaid circumstances, this appeal is allowed. The order of the learned Single Judge in granting interim relief while dismissing the writ petition is set aside. The interim relief granted by the learned Single stands vacated forthwith. No order as to costs. (MUNISHWAR NATH BHANDARI), J. (P.B.MAJMUDAR), J. Vij