# Krishna Nand Rai v. State of U.P. & Ors

- **Citation:** (2020) 12 ILRA 448
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-29
- **Case number:** Writ - C No. 13427 of 2020
- **Bench:** Manoj Kumar Gupta, Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishna-nand-rai-v-state-of-u-p-ors-45612
- **Pages:** 4

## Headnote

(A) Civil law - Principles of natural justice
- 'useless formality' theory - cases where
despite non-observance of the principles
of natural justice, the ultimate result is
bound to remain the same - where there is
no other view possible even if opportunity
of hearing is afforded to the aggrieved
parties - such are the cases where
impugned action cannot be struck down on
ground of violation of principles of natural
justice nor are such cases required to be
remitted back to the authorities for a fresh
decision after giving show cause notice or
opportunity of hearing - it will be an empty
formality, a mere ritual.(Para - 6)

District
Magistrate
cancelled
petitioner's
certificate of being a dependent of freedom
fighter - ground - petitioner is great grandson of
a freedom fighter - benefit of being dependent
of
freedom
fighter
is
available
only
to
descendants up to the stage of grandson and
not beyond it, i.e. a great grandson or
descendants lower in line would not come within
the definition of 'dependent of freedom fighter'.
(Para-1)

Held: - No purpose will be served in remitting
the matter back to the authority for decision
afresh after providing opportunity of hearing to
the petitioner, in as much as the defect is
incurable; no amount of explanation can change
the ultimate result, being a fait accompli.
Petitioner can by no means negate the admitted
fact that being great grandson of a 'freedom
fighter', he is beyond the purview of the
definition of 'dependent of freedom fighter'.
(Para - 9)

Writ Petition dismissed . (E-7)

List of Cases cited:-

## Text

448 INDIAN LAW REPORTS ALLAHABAD SERIES
members of a society. Resignation, therefore,
was clearly a question which related to the
continuance of the private respondents as
office bearers of the Society. For the
aforesaid reasons the Court finds itself unable
to sustain the order impugned.

13. The writ petition is accordingly
allowed. The impugned order dated 17
March 2020 is hereby quashed and set aside.
The Assistant Registrar is directed to refer the
issue of the alleged resignation of the private
respondents for the consideration of the
Prescribed Authority in accordance with the
provisions made in Section 25 of the 1860
Act.
The
Prescribed
Authority
shall
endeavour to conclude proceedings with due
notice
to
all
concerned
parties
with
expedition and preferably within a period of
three months from the date of presentation of
a duly authenticated copy of this order.
----------
(2020)12ILR A448
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.09.2020

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ - C No. 13427 of 2020

Krishna Nand Rai ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Syed Wajid Ali, Rachna Vyas

Counsel for the Respondents:
C.S.C.

(A) Civil law - Principles of natural justice
- 'useless formality' theory - cases where
despite non-observance of the principles
of natural justice, the ultimate result is
bound to remain the same - where there is
no other view possible even if opportunity
of hearing is afforded to the aggrieved
parties - such are the cases where
impugned action cannot be struck down on
ground of violation of principles of natural
justice nor are such cases required to be
remitted back to the authorities for a fresh
decision after giving show cause notice or
opportunity of hearing - it will be an empty
formality, a mere ritual.(Para - 6)

District
Magistrate
cancelled
petitioner's
certificate of being a dependent of freedom
fighter - ground - petitioner is great grandson of
a freedom fighter - benefit of being dependent
of
freedom
fighter
is
available
only
to
descendants up to the stage of grandson and
not beyond it, i.e. a great grandson or
descendants lower in line would not come within
the definition of 'dependent of freedom fighter'.
(Para-1)

Held: - No purpose will be served in remitting
the matter back to the authority for decision
afresh after providing opportunity of hearing to
the petitioner, in as much as the defect is
incurable; no amount of explanation can change
the ultimate result, being a fait accompli.
Petitioner can by no means negate the admitted
fact that being great grandson of a 'freedom
fighter', he is beyond the purview of the
definition of 'dependent of freedom fighter'.
(Para - 9)

Writ Petition dismissed . (E-7)

List of Cases cited:-

1. Dattu Namdev Thakur Vs St.of Mah. & ors. ,
2012 AIR SCW 203

2. Uma Nath Pandey. & ors. Vs St. of U.P. &
anr., 2009 AIR SCW 3200

3. Asit Kumar Kar Vs St. of W.B. & ors., (2009)
2 AWC 1628

4. A.R. Antuley Vs R.S. Nayak & anr., (1988) 2
SCC 602

5. M.C. Mehta Vs U.O.I. & ors., (1999) 6 SCC 237
12 All. Krishna Nand Rai Vs. State of U.P. & Ors.
449
6. Haryana Financial Corporation & anr. Vs
Kailash Chandra Ahuja, (2008) 9 SCC 31

7. Aligarh Muslim University Vs Mansoor Ali
Khan, (2000) 7 SCC 529

(Delivered by Hon'ble Manoj Kumar Gupta, J.
& Hon'ble Dr. Yogendra Kumar Srivastava, J.)

1. The instant petition has been filed
challenging the order dated 24.6.2020,
passed by District Magistrate, Gorakhpur
(respondent no. 2 herein), whereby the
petitioner's certificate of being a dependent
of freedom fighter dated 6.9.2001 has been
cancelled. The order records that the
petitioner is great grandson of late Ram
Chandra Rai, who was a freedom fighter.
The benefit of being dependent of freedom
fighter is available only to descendants
upto the stage of grandson and not beyond
it, i.e. a great grandson or descendants
lower in line would not come within the
definition of 'dependent of freedom fighter'.

2. The sole contention of learned
counsel for the petitioner is that the
impugned order has been passed without
any notice or opportunity of hearing to the
petitioner.

3. On query made by the Court as to
how the petitioner would come within the
definition of 'dependent of freedom fighter',
Sri Syed Wajid Ali, learned counsel for the
petitioner very fairly admitted that the
petitioner would be beyond the sweep of
the definition of dependent of freedom
fighter as defined in Government Orders
issued in this regard. He only reiterated his
contention that since the impugned order
has been passed without notice to the
petitioner, therefore it is illegal.

4. Learned counsel for the petitioner
has placed reliance upon judgments of the
Supreme Court in Dattu Namdev Thakur
vs. State of Maharashtra and Others,
2012 AIR SCW 203; Uma Nath Pandey
and Others vs. State of U.P. and
Another, 2009 AIR SCW 3200 and Asit
Kumar Kar vs. State of West Bengal and
others, 2009 (2) AWC 1628 in submitting
that the impugned order, being in violation
of principles of natural justice, is liable to
be quashed.

5. In Asit Kumar Kar (supra), the
Supreme Court re-emphasised that an order
having adverse consequences should not be
passed without hearing the person affected
thereby. Reliance was placed on the Seven
Judge Constitution Bench judgement in
A.R. Antuley vs. R.S. Nayak and
another, 1988 (2) SCC 602, where in
paragraph 55, the Supreme Court observed
as follows :-

"so also the violation of the
principles of natural justice renders the act
a nullity".

6. The next judgement of the Supreme
Court in Uma Nath Pandey (supra), while
considering the principles of natural justice
also took note of the 'useless formality'
theory. The observations made in earlier
judgement in M.C. Mehta vs. Union of
India and others, 1999 (6) SCC 237 were
alluded to. The 'useless formality' theory
stipulates that in cases where despite nonobservance of the principles of natural
justice, the ultimate result is bound to
remain the same; where there is no other
view possible even if opportunity of
hearing is afforded to the aggrieved parties,
then such are the cases where impugned
action cannot be struck down on ground of
violation of principles of natural justice nor
are such cases required to be remitted back
to the authorities for a fresh decision after
450 INDIAN LAW REPORTS ALLAHABAD SERIES
giving show cause notice or opportunity of
hearing, as it will be an empty formality, a
mere ritual. After taking notice of the said
doctrine, it was observed as follows :-

"Thus, in relation to cases other
than
those
relating
to
admitted
or
indisputable facts, there is a considerable
divergence
of
opinion
whether
the
applicant can be compelled to prove that
the outcome will be in his favour or he has
to prove a case of substance or if he can
prove a 'real likelihood' of success or if he
is entitled to relief even if there is some
remote chance of success. We may,
however, point out that even in cases where
the facts are not all admitted or beyond
dispute, there is a considerable unanimity
that the courts can, in exercise of their
'discretion', refuse certiorari, prohibition,
mandamus or injunction even though
natural justice is not followed."

7. The Apex Court in its judgment in
the
case
of
Haryana
Financial
Corporation and another vs. Kailash
Chandra Ahuja reported in (2008) 9 SCC
31 has considered in great detail the
consequence
of
non-observance
of
principles of natural justice. The Apex
Court has held that the recent trend of
judgments is that unless prejudice is shown,
the impugned order or action cannot be
struck down. It has been observed as
under:-

"The recent trend, however, is of
"prejudice". Even in those cases where
procedural requirements have not been
complied with, the action has not been held
ipso facto illegal, unlawful or void unless it
is
shown
that
non-observance
had
prejudicially affected the applicant.

In Malloch Vs. Abendeen Corpn.,
Lord Reid said : (All ER p. 1283a-b)

"....it was argued to have afforded
a
hearing
to
the
applicant
before
dismissing him would have been a useless
formality because whatever he might have
said could have made no difference. If that
could be clearly demonstrated it might be a
good
answer".
(emphasis supplied)

Lord Guest agreed with the above
statement, went further and stated: (All ER
p.1291b-c)

"...A great many arguments might
have been put forward but if none of them
had any chance of success then I can see no
good reason why the respondents should
have given the appellant a hearing, nor can
I see that he was prejudiced in any way".

8. In Aligarh Muslim University vs.
Mansoor Ali Khan, (2000) 7 SCC 529,
the Court held that though the rules of
natural justice have been violated but the
order impugned cannot be set aside as no
prejudice has been caused. Referring to
several cases, and after considering the
theory of "useless" or "empty formality"
and noting "admitted or undisputed" facts,
the Court held that the only conclusion
which could be drawn was that "had the
petitioner been given notice", it "would not
have made any difference" and, hence, no
prejudice has been caused.

9. In the instant case as well, no
purpose will be served in remitting the
matter back to the authority for decision
afresh after providing opportunity of
hearing to the petitioner, in as much as the
defect
is
incurable;
no
amount
of
explanation can change the ultimate result,
being a fait accompli. For the petitioner can
by no means negate the admitted fact that
being great grand son of a 'freedom fighter',
he is beyond the purview of the definition
of
'dependent
of
freedom
fighter'.
12 All. Rinki Gupta Vs. State of U.P. & Ors.
451
Consequently, even if opportunity of
hearing would have been given to the
petitioner, it would not have improved the
situation, a fact clearly admitted by learned
counsel for the petitioner.

10. Coming to the next judgement cited
by learned counsel for the petitioner in Dattu
Namdev Thakur (supra), it is pertinent to
note that in the said case, the Supreme Court
did not interfere with the findings of the High
Court upholding order of the Caste Scrutiny
Committee cancelling the caste certificate of
the petitioners. However, while dismissing
the Special Leave Petition, the Supreme
Court issued certain directions to safeguard
the interest of the petitioners before it by
observing thus :-

"9. Accordingly, while dismissing
all the three Special Leave Petitions, we
direct that whatever advantage the three
petitioners in the three Special Leave
Petitions, may have derived on the basis of
their 'Caste Certificates', shall not be
disturbed and the cancellation of their
respective 'Caste Certificates' will not
deprive them of the benefits which they
have already enjoyed. However, we also
make it clear that none of the three
petitioners in the three respective Special
Leave Petitions, will be entitled to take any
further advantage of reservation in future,
either for studies or for employment.
Following the judgment in Swati's case, we
also direct that if the petitioners in the 2nd
and 3rd Special Leave Petitions, have
obtained any concession by way of
reduction in fees, as a reserved candidate,
they will have to make good the same by
paying the difference in fees that is being
paid by general candidates. Such payment
has to be made within a period of six
months and in default of such payment, this
order will cease to have any effect."

11. The petitioner, it seems, is
working as Assistant Teacher in a Primary
School run by Basic Shiksha Parishad. If
any action is taken by the employer on the
ground of cancellation of the certificate of
'dependent of freedom fighter', it would
always be open to the petitioner to press for
extending the benefit of the judgement of
the Supreme Court in Dattu Namdev
Thakur being given to him. Since at this
stage, the only order challenged before us
is that of cancellation of the certificate,
therefore, with the above liberty reserved in
favour of the petitioner, the instant petition
stands dismissed.
----------
(2020)12ILR A451
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.11.2020

BEFORE

THE HON'BLE SURYA PRAKASH KESARWANI, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ - C No. 14091 of 2020

Rinki Gupta ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vinay Kumar Mishra

Counsel for the Respondents:
C.S.C., Sri Chandra Bhushan Yadav, Sri Tapan
Kumar Mishra, Sri Vikas Budhwar, Sri
Vivekanand Yadav

(A)
Constitution
of
india-Article
226-
fundamental rights -locus standi - Petitioner
has no fundamental or statutory right to
stop another operator coming in business
near his petrol pump. (Para - 6)

Dispute relating to opening the petrol pump near
to the petrol pump of the petitioner. (Para - 4)