# Leellu v. State of U.P. & Ors

- **Citation:** (2023) 2 ILRA 494
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-09
- **Case number:** Writ-C No. 4745 of 2023
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/leellu-v-state-of-u-p-ors-49707
- **Pages:** 15

## Headnote

A. Civil Law - U.P. Revenue Code, 2006 -
Sections 67, 225-A & 233 - U.P. Revenue
Code Rules, 2016 - Rules 67, 186 & 192 -
unauthorized
occupation
of
Gram
Panchayat
property
-

Eviction
proceedings - Natural Justice - In view of
Rule 192, proceedings u/s 67 are
summary
proceedings,
and
therefore,
adherence to the principles of Natural
Justice is a statutory mandate, as per Rule
186 - Time to notice to show cause u/s
67(2) - though no specific period has
been prescribed to show cause but still
sufficient time must be given to the notice
to submit objections - Violation of
Principles of Natural Justice - Court
deprecated the conduct of the Tahsildar,
who
initiated
and
concluded
the
proceedings u/s 67 within no time i.e.
within a period of 11 days from the date of
their inception - Petitioner was granted
only two days' time to show cause against
the proposed dispossession - petitioner
was deprived of his say in the matter -
Court held that the principles of Natural
Justice and the scheme of the Code & the
Rules were not followed by the Tahsildar -
Impugned order quashed (Para 8, 22,
33,35, 36)

B. Constitution of India,1950 - Art.226 -
Judicial review - Administrative Law -
Proportionality and Wednesbury principles
-
To
judge
the
validity
of
any
administrative
order
normally
the
Wednesbury test is to be applied to find
out if the decision was illegal or suffered
from procedural improprieties or was
2 All. Leellu Vs. State of U.P. & Ors.
495
irrational in the sense that it was in
outrageous defiance of logic or moral
standards or was one which no sensible
decision-maker could, on the material
before him and within the framework of
the law, have arrived at - could would
consider whether relevant matters had
not been taken into account or whether
irrelevant matters had been taken into
account or whether the action was not
bona fide or whether the decision was
absurd or perverse - court would not
however go into the correctness of the
choice
made
by
the
administrator
amongst the various alternatives open to
him (Para 31)

Allowed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,994 of 50,483. This is a partial read: ask again with offset=39994 for what follows._

494 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioners have been in their place of
posting for more than 15 years prior to the
impugned transfer and the details as
mentioned in paragraph 5 of the counter
affidavit filed by the State relating to each
of the petitioners clearly indicates the fact
that all the petitioners have been at one
place for last almost 20 years. In so far as
the petitioner nos. 13 and 19 are concerned,
they themselves have sought their transfer
on their own volition.

 33.

Considering
the
aforesaid
material,
submissions
made
by
the
respective parties and taking a holistic view
including the fact that the petitioners have
already joined on their place of posting and
drawing
strength
from
settled
legal
principles
culled
out
from
the
pronouncements noted hereinabove, this
Court does not find that there is any cogent
reason for this Court to interfere in the
transfer order. The larger public interest as
well as the fact that each of the petitioners
have been in their place of posting for
about 20 years and more in itself in terms
of the transfer policy requires consideration
and for the said reason, the employer being
best suited to judge the suitability of the
employee and the place at which work is to
be taken cannot be interfered with by the
Court in exercise of the writ jurisdiction.

34. For the reasons as detailed
hereinabove, this Court does not find
favour with the petitioner and the petition is
sans merit, accordingly, it is dismissed. In
the facts and circumstances, there shall be
no order as to costs.
----------
(2023) 2 ILRA 494
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.02.2023

BEFORE
THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-C No. 4745 of 2023

Leellu ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Amish Kumar Srivastava, Ms. Sanju Lata

Counsel for the Respondents:
C.S.C., Sri Kaushal Kishore Mani

A. Civil Law - U.P. Revenue Code, 2006 -
Sections 67, 225-A & 233 - U.P. Revenue
Code Rules, 2016 - Rules 67, 186 & 192 -
unauthorized
occupation
of
Gram
Panchayat
property
-

Eviction
proceedings - Natural Justice - In view of
Rule 192, proceedings u/s 67 are
summary
proceedings,
and
therefore,
adherence to the principles of Natural
Justice is a statutory mandate, as per Rule
186 - Time to notice to show cause u/s
67(2) - though no specific period has
been prescribed to show cause but still
sufficient time must be given to the notice
to submit objections - Violation of
Principles of Natural Justice - Court
deprecated the conduct of the Tahsildar,
who
initiated
and
concluded
the
proceedings u/s 67 within no time i.e.
within a period of 11 days from the date of
their inception - Petitioner was granted
only two days' time to show cause against
the proposed dispossession - petitioner
was deprived of his say in the matter -
Court held that the principles of Natural
Justice and the scheme of the Code & the
Rules were not followed by the Tahsildar -
Impugned order quashed (Para 8, 22,
33,35, 36)

B. Constitution of India,1950 - Art.226 -
Judicial review - Administrative Law -
Proportionality and Wednesbury principles
-
To
judge
the
validity
of
any
administrative
order
normally
the
Wednesbury test is to be applied to find
out if the decision was illegal or suffered
from procedural improprieties or was
2 All. Leellu Vs. State of U.P. & Ors.
495
irrational in the sense that it was in
outrageous defiance of logic or moral
standards or was one which no sensible
decision-maker could, on the material
before him and within the framework of
the law, have arrived at - could would
consider whether relevant matters had
not been taken into account or whether
irrelevant matters had been taken into
account or whether the action was not
bona fide or whether the decision was
absurd or perverse - court would not
however go into the correctness of the
choice
made
by
the
administrator
amongst the various alternatives open to
him (Para 31)

Allowed. (E-5)

List of Cases cited:

1. Canara Bank Vs V.K. Awasthy, 2005 (6) SCC
321

2. U.O.I. & anr. Vs G. Ganayutham, [1997] 7
SCC 463

3. Rishipal Singh Vs St. of U.P. & ors., 2023 (1)
AWC 4

(Delivered by Hon'ble Kshitij Shailendra, J.)

1.

Heard
Shri
Amish
Kumar
Srivastava along with Ms. Sanju Lata,
learned counsel for the petitioner, learned
Standing Counsel for the State-respondents
and Shri Kaushal Kishore Mani, learned
counsel for respondent No. 4.

2. The petitioner has made two
prayers in the writ petition. The first prayer
is for quashing of the order dated
04.01.2023,
whereby
the
Tehsildar
concerned has directed eviction of the
petitioner in the proceedings under section
67 of U.P. Revenue Code, 2006 and also
imposed penalty to the extent of Rs.
1,36,600/-. The second prayer is for
deciding the restoration application filed by
the petitioner on 16.01.2023 seeking recall
of the order dated 04.01.2023.

3. Learned counsel for the petitioner
submits
that
the
Tehsildar,
Nakud,
Saharanpur
issued
a
notice
dated
26.12.2022 in purported exercise of powers
under section 67 (2) of U.P. Revenue Code,
2006 calling upon the petitioner to remove
his alleged unauthorised possession within
a period of two days fixing 28.12.2022 at
10.00 a.m. for compliance of notice and to
show cause. The notice states that in case
objections are not filed against the show
cause notice within the aforesaid date and
time, the case shall be decided ex-parte.

4. The relevant portion of notice dated
26.12.2022 reads as under:

"अिः एििद्वारा आपको नोदटस िी जािी है
दक आप 02 कदनोों के अन्दर अवैध अध्यासन को
हटा ले, और रूपये की नुकसानी जमा कर िे।
नुकसान की मरिि करे, अथवा िुदवषयोजन के
कारण हुई क्षदि को पूणष करे अथवा रूपय
2732000/- ग्राम सभा को सौपी गयी भूदम के
नुकसान अथवा िुदवषयोजन के कारण हुई क्षदि को
पूणष करे अथवा रूपये 2732000/- रूपये नुकसान
के रूप में जमा करे, अथवा करने से दवरि रहे।
दिनाांक 28.12.2022 को समय 10 बजे मेरे
न्यायालय में मेरे समक्ष इस नोदटस के पालन की
सूचना के दलये अथवा उसके दवरूद्ध कारण बिाने
के दलये उपस्स्थि हो।

आपको यह भी सूदचि दकया जािा है दक
यदि आप उस्ल्लस्खि दिनाांक और समय को या िो
व्यस्िगि रूप से अथवा अदधविा के माध्यम से
उपस्स्थि नहीां होिे है, और कारण बिाओां नोदटस
के दवरूद्ध आपदि िास्खल नहीां करिे िो मामले में
दवदनिय दकया जायेगा और आपके दवरूद्ध एक
पक्षीय रूप से आिेश पाररि दकया जायेगा।

मेरे हस्ताक्षर व न्यायालय की मुहर से
दिनाांक 26.12.2022 को जारी दकया गया। "
496 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Learned counsel for the petitioner
submits that the very next week, the
impugned order dated 04.01.2023 has been
passed observing that despite service of
notice, the petitioner has not made any
opposition hence the case proceeded day by
day. It is the case of the petitioner that the
order dated 04.01.2023 being ex-parte and
in violation of the principles of Natural
Justice, he immediately preferred a recall
application dated 16.01.2023 stating that
immediately after having come to know
about
the
order
dated
04.01.2023,
restoration/recall
application
is
being
moved, which should be allowed.

6. Learned counsel for the petitioner
has placed reliance upon the provisions of
section 67 of U.P. Revenue Code, 2006,
sub-sections (2) and (3), whereof read as
follows:

67. Power to prevent damages,
misappropriation
and
wrongful
occupation of Gram Panchayat property. -

(2) Where from the information
received
under
sub-section
(1)
or
otherwise,
the
Assistant
Collector
is
satisfied that any property referred to in
sub-section (1) has been damaged or
misappropriated, or any person is in
occupation of any land referred to in that
sub-section
in
contravention
of
the
provisions of this Code, he shall issue
notice to the person concerned to show
cause why compensation for damage,
misappropriation or wrongful occupation
not exceeding the amount specified in the
notice be not recovered from him and why
he should not be evicted from such land.

(3) If the person to whom a notice has
been issued under sub-section (2) fails to
show cause within the time specified in the
notice or within such extended time as the
Assistant Collector may allow in this
behalf, or if the cause shown is found to be
insufficient, the Assistant Collector may
direct that such person shall be evicted
from the land, and may, for that purpose,
use or cause to be used such force as may
be necessary, and may direct that the
amount of compensation for damage or
misappropriation of the property or for
wrongful occupation as the case may be, be
recovered from such person as arrears of
land revenue."

7. He has also placed reliance upon
Rule 67 of the Rules framed under the Act
in 2016, which reads as follows:

67. Further inquiry by Assistant
Collector (Section 67). - (1) On receipt of
the information under rule 66, or on facts
otherwise coming to his knowledge, the
Assistant Collector may make such inquiry
as he deems proper and may obtain further
information
regarding
the
following
points:-

(a) full description of damage or
misappropriation caused or the wrongful
occupation made with details of village,
plot number, area, boundary, property
damaged or misappropriated and market
value thereof;

(b) full address along with parentage
of the person responsible for such damage,
misappropriation or wrongful occupation;

(c) period of wrongful occupation,
damage or misappropriation and class of
soil of the plots involved;

(d) value of the property damaged or
misappropriated calculated at the circle
rate fixed by the Collector and the amount
sought to be recovered as damages.

(2) The Assistant Collector shall
thereafter proceed to take action under
section 67(2) and for that purpose issue a
notice to the person concerned in R.C.
Form-20 to show cause as to why
2 All. Leellu Vs. State of U.P. & Ors.
497
compensation
for
damage,
misappropriation or wrongful occupation
not exceeding the amount specified in the
notice be not recovered from him and why
he should not be evicted from such land.

(3) If the notice referred to in section
67(2) remains uncomplied with or if the
cause shown by the person concerned is
found to be insufficient, the Assistant
Collector may direct by order that-

(a) such person be evicted by using
such force as may be necessary; or

(b) the amount of compensation for
damage or wrongful occupation ordered by
the Assistant Collector, if not paid in
specified time, may be recovered as arrears
of land revenue, including the amount of
expenses referred to in sub-rule (3).

(4) The amount of damages sought to
be recovered and the expenses of execution
of the order shall be specified in such
notice, which shall be determined in the
following manner:-

(a) In the case of damage or
misappropriation, the amount of damages
shall be assessed at the prevailing market
rate.

(b) In the case of unauthorized
occupation of any land, the amount of
damages shall be the amount equal to the
five percent of the market value of the land
calculated at the circle rate fixed by the
Collector for each year of unauthorized
occupation.

(c) The expenses of execution of the
order shall be assessed on the basis of one
day's pay and allowances payable to the
staff deputed.

(5) If the person wrongfully occupying
the land has done cultivation therein, he
may be allowed to retain possession thereof
until he has harvested the crops subject to
the payment by him of the amount equal to
the five percent of the market value of the
land calculated as per the circle rate which
shall be credited to the Consolidated Gaon
Fund or the Fund of the local authority
other than the Gram Panchayat as the case
may be. If the person concerned does not
make the payment of the aforesaid amount
within the period specified in the notice in
R.C. Form-20, the possession of the land
shall be delivered to the Land Management
Committee or the local authority, as the
case may be, together with the crop:

Provided that where such person
again wrongfully occupies the same land or
any other land within the jurisdiction of the
Gram Panchayat or the local authority as
the case may be, he shall be evicted
therefrom forthwith and possession of the
land vacant or together with the crop
thereon shall be delivered to the Land
Management Committee or the local
authority as the case may be.

(6) The Assistant Collector shall make
an endeavor to conclude the proceeding
under section 67 of the Code within the
period of ninety days from the date of
issuance of the show cause notice and if the
proceeding is not concluded within such
period the reasons for the same shall be
recorded.

(7) Nothing in sub-rule (5) shall debar
the Land Management Committee or the
local authority as the case may be from
prosecuting the person who encroaches
upon the same land second time in spite of
having been evicted under the Code or the
rules, under section 447 of the Indian
Penal Code, 1860.

(8) There shall be maintained in the
office of each Collector a register in R.C.
Form-21 showing details of the amount
ordered to be realized on account of
damages and compensation awarded in
proceedings under section 67.

(9) A similar register shall also be
maintained by each tahsildar showing
realization of damages and compensation
498 INDIAN LAW REPORTS ALLAHABAD SERIES
awarded in such proceeding. The entries
made in the register maintained at tahsil
shall be compared with the register
maintained by the Collector to ensure
accuracy of the entries made therein.

(10) A progress report showing
realization of damages and compensation
awarded in proceedings under section 67
shall be sent to Board of Revenue, U.P.,
Lucknow by the fifteenth day of April and
October every year. The Board after
consolidating the report so received from
the
districts
shall
send
it
to
the
Government.

(11) Nothing in rules 66 and 67 shall
debar any person from establishment of his
right, title or interest in a court of
competent jurisdiction in accordance with
the law for the time being in force in
respect of any matter for which any order
has been made under section 67 of the
Code.........

8. The contention of the learned
counsel for the petitioner is that issuance of
notice under sub-section (2) of section 67
for showing cause must have provided
sufficient time to the noticee to submit
objections and merely because under
section 67 of the Code or Rule 67 of the
Rules, no time period has been fixed for
calling
upon
the
noticee
to
submit
objections, it cannot be expected that the
notice issuing authority is under unbridled
power to issue a notice granting only two
days' time to vacate the property, and
therefore, the very basis of the impugned
proceedings is contrary to the principles of
Natural Justice as well as the provisions of
the Code and the Rules.

9. On the other hand, learned
Standing Counsel submits that since the
restoration application has already been
preferred by the petitioner seeking recall of
the order dated 04.01.2023, it would not be
appropriate for this Court to examine the
validity of the order dated 04.01.2023,
inasmuch as in case the recall application is
decided either way, the same would give
rise to further proceedings depending upon
result of restoration/recall application.
Learned Standing Counsel further submits
that since no specific period has been
prescribed either under section 67 of the
U.P. Revenue Code, 2006 or under Rule 67
of the Rules, 2016, issuance of notice
calling upon the petitioner in the present
case, to show cause within a period of two
days, does not suffer from any infirmity or
illegality.

10. I have heard the learned counsel
for the parties and perused the record.

11. Section 67 of the U.P. Revenue
Code, 2006 is a substantial provision
describing the power to prevent damage,
misappropriation and wrongful occupation
of Gram Panchayat property. The provision
is divided into various sub-sections and the
Rule 67 of the Rules clearly provides for
holding of comprehensive and specific
proceedings before arriving at a conclusion
under section 67 of the Act.

12. Apart from above, insofar as
applicability
of
the
Code
of
Civil
Procedure, 1908 to the proceedings under
U.P. Revenue Code, 2006, reference to
Rule 186 of U.P. Revenue Code Rules,
2016 should be made.

13. Rule 186 of the U.P. Revenue
Code Rules, 2016 reads as follows:

"186.
Non-applicability
of
CPC
(Section 214).- The provisions of the Code
of Civil Procedure, 1908 shall not be
applicable to the summary proceedings
2 All. Leellu Vs. State of U.P. & Ors.
499
under the Code or these rules, but the
principles enshrined in the Code of Civil
Procedure, 1908 and the principles of
natural justice shall be observed in the
disposal of such proceedings."

14. Though, Rule 186 excludes
provisions of applicability with respect to
the summary proceedings under the U.P.
Revenue Code of 2006, however it clearly
mandates that principles enshrined in the
Code of Civil Procedure, 1908 and the
principles of Natural Justice shall be
observed
in
the
disposal
of
such
proceedings.

15. Apart from the above, section
225-A read with Rule 192 of the Rules
provide for determination of questions in
any summary proceedings under the U.P.
Revenue Code, 2006. For ready reference,
section 225-A of U.P. Revenue Code, 2006
and Rule 192 of U.P. Revenue Code Rules,
2016 are reproduced herein below:

"225-A Determination of questions in
summary
proceeding.-Notwithstanding
anything contained in other provisions of
this Code, all the questions arising for
determination in any summary proceeding
under this Code shall be decided upon
affidavits, in the manner prescribed:

Provided that if Revenue Court or
Revenue Officer is satisfied that the cross
examination of any witness, who has filed
affidavit, is necessary, it or he may direct
to produce the witness for such cross
examination.

"192. Determination of questions in
summary proceedings (Section 225-A).-
(1)
All
the
questions
arising
for
determination in any summary proceeding
under this Code or these rules shall be
decided upon affidavits.
(2) The following proceedings shall be
treated as summary proceedings, namely:

Section
Particulars
24
Demarcation proceedings.
25
Proceeding regarding rights of
way and other easements.
26
Proceeding regarding removal
of obstacle.
30(2)
Proceeding regarding physical
division of minjumla number.
31(2)
Proceeding
regarding
determination of shares.
32
Proceeding
regarding
correction of records.
35
Mutation proceedings.
38
Proceeding
regarding
correction of error or omission.
49
Proceeding regarding revision
of map and records.
58
Proceeding regarding dispute
arising
in
respect
of
any
property referred to in sections
54,56 or 57.
66
Proceeding regarding inquiry
into
irregular
allotment
of
Abadi sites.
67
Proceeding regarding eviction
of unauthorised occupants
80
Proceeding
regarding
declaration for nonagricultural
use
82
Proceeding
regarding
cancellation of declaration.
98
Proceeding
regarding
permission
to
transfer
Bhumidhari land to person
other than Scheduled Caste.
500 INDIAN LAW REPORTS ALLAHABAD SERIES
101
Proceeding for exchange.
105(5)
Proceeding for possession of
Land.
128
Proceeding for cancellation of
allotment and lease.
149
&
150
Proceeding
for
eviction
of
Government lessee.
193
Proceeding to set aside sale for
irregularity.
195
Proceeding for setting aside of
sale
by
Collector
or
Commissioner.
212
Proceeding
for
transfer
of
cases.

(3) The State Government or the
Board may declare any other proceeding
except the suits under the Code or these
rules as the summary proceeding.

(4) The procedure for disposal of
summary proceedings is contained in
Revenue Court Manual."

16. The aforesaid Rules of 2016 have
been framed by the State Government in
exercise of powers under section 233 of the
U.P. Revenue Code, 2006. For the purposes
of instant case, section 233 (2) (xiv) is
extracted herein-below:

"233. Rules.(1) The State Government
may by notification make rules for carrying
for the purposes of this Code.

(2) Without prejudice to the generality
of the foregoing power, such rules may also
provided for-

(xiv) the procedure relating to the
conduct and prosecution of suits, appeals
and other proceedings, including the
procedure
of
conducting
various
inquiries under the provisions of this
Code."

17. From the aforesaid quoted
provisions, it is clear that proceedings
under section 67 of the U.P. Revenue Code,
2006 are summary proceedings, and
therefore, in view of aforesaid quoted
provisions, adherence to the principles of
Natural Justice is a statutory mandate.

18. The crucial question that remains
to be adjudicated in the present case is
whether principles of natural justice have
been violated; and if so, to what extent any
prejudice has been caused. It may be noted
at this juncture that in some cases it has
been
observed
that
where
grant
of
opportunity in terms of principles of natural
justice do not improve the situation,
``useless formality theory'' can be pressed
into service.

19. The Apex Court in its judgement
pronounced in the case of Canara Bank vs
V.K. Awasthy, 2005 (6) Supreme Court
Cases, 321, elaborately described the
principles governing concept of Natural
Justice
and
its
application
in
the
judicial/quasi
judicial/administrative
proceedings and this Court is taking aid of
the
said
decision
in
reiterating
the
deliberations made by different courts on
the issue, in the forthcoming paragraphs:

20. Natural justice is another name for
commonsense justice. Rules of natural
justice are not codified canons. But they are
principles ingrained into the conscience of
man. Natural justice is the administration of
justice in a commonsense liberal way.
Justice is based substantially on natural
ideals
and
human
values.
The
administration of justice is to be freed from
the narrow and restricted considerations
which are usually associated with a
formulated
law
involving
linguistic
technicalities and grammatical niceties. It is
2 All. Leellu Vs. State of U.P. & Ors.
501
the substance of justice which has to
determine its form.

21. The expressions ``natural justice''
and ``legal justice'' do not present a watertight classification. It is the substance of
justice which is to be secured by both, and
whenever legal justice fails to achieve this
solemn purpose, natural justice is called in
aid of legal justice. Natural justice relieves
legal justice from unnecessary technicality,
grammatical
pedantry
or
logical
prevarication. It supplies the omissions of a
formulated law. As Lord Buckmaster said,
no form or procedure should ever be
permitted to exclude the presentation of a
litigants. Defence.

22. The adherence to principles of
natural justice as recognized by all civilized
States is of supreme importance when a
quasi-judicial
body
embarks
on
determining disputes between the parties,
or any administrative action involving civil
consequences is in issue. These principles
are well settled. The first and foremost
principle is what is commonly known as
audi alteram partem rule. It says that no one
should be condemned unheard. Notice is
the first limb of this principle. It must be
precise
and
unambiguous.
It
should
appraise the party determinatively the case
he has to meet. Time given for the purpose
should be adequate so as to enable him to
make his representation. In the absence of a
notice of the kind and such reasonable
opportunity, the order passed becomes
wholly vitiated. Thus, it is but essential that
a party should be put on notice of the case
before any adverse order is passed against
him. This is one of the most important
principles of natural justice. It is after all an
approved rule of fair play. The concept has
gained significance and shades with time.
When the historic document was made at
Runnymede in 1215, the first statutory
recognition of this principle found its way
into the ``Magna Carta''. The classic
exposition of Sir Edward Coke of natural
justice requires to ``vocate interrogate and
adjudicate''. In the celebrated case of
Cooper v. Wandsworth Board of Works,
(1963) 143 ER 414, the principle was thus
stated:

"Even God did not pass a sentence
upon Adam, before he was called upon to
make his defence. ``Adam'' says God,
``where art thou has thou not eaten of the
tree whereof I commanded thee that though
should not eat''.

Since then the principle has been
chiselled, honed and refined, enriching its
content. Judicial treatment has added light
and luminosity to the concept, like
polishing of a diamond.

23. Principles of natural justice are
those rules which have been laid down by
the
Courts
as
being
the
minimum
protection of the rights of the individual
against the arbitrary procedure that may be
adopted by a judicial, quasi- judicial and
administrative authority while making an
order affecting those rights. These rules are
intended to prevent such authority from
doing injustice.

24. What is meant by the term
"principles of natural justice" is not easy to
determine. Lord Summer (then Hamilton,
L.J.) in Ray v. Local Government Board,
(1914) 1 KB 160, described the phrase as
sadly lacking in precision. In General
Council
of
Medical
Education
&
Registration of U.K. v. Sanckman, (1943)
AC 627; Lord Wright observed that it was
not desirable to attempt `to force it into any
Procrustean bed' and mentioned that one
502 INDIAN LAW REPORTS ALLAHABAD SERIES
essential requirement was that the Tribunal
should be impartial and have no personal
interest in the controversy, and further that
it should give `a full and fair opportunity',
to every party of being heard.

25. Lord Wright referred to the
leading cases on the subject. The most
important of them is the Board of
Education v. Rice, (1911) AC 179, where
Lord Loreburn, L.C. observed as follows:

"Comparatively recent statutes have
extended, if they have originated, the
practice of imposing upon departments or
offices of State the duty of deciding or
determining questions of various kinds. It
will,
I
suppose
usually
be
of
an
administrative kind, but sometimes, it will
involve matter of law as well as matter of
fact, or even depend upon matter of law
alone. In such cases, the Board of
Education will have to ascertain the law
and also to ascertain the facts. I need not
and that in doing either they must act in
good faith and fairly listen to both sides for
that is a duty lying upon everyone who
decides anything. But I do not think they
are bound to treat such a question as
though it were a trial......'' The Board is in
the nature of the arbitral tribunal, and a
Court of law has no jurisdiction to hear
appeals from the determination either upon
law or upon fact. But if the Court is
satisfied either that the Board have not
acted judicially in the way I have
described, or have not determined the
question which they are required by the Act
to determine, then there is a remedy by
mandamus and certiorari".

Lord Wright also emphasized from the
same decision the observation of the Lord
Chancellor that the Board can obtain
information in any way they think best,
always giving a fair opportunity to those
who are parties to the controversy for
correcting or contradicting any relevant
statement prejudicial to their view''. To the
same effect are the observations of Earl of
Selbourne, LO in Spackman v. Plumstead
District Board of Works, (1885) 10 AC
229, where the learned and noble Lord
Chancellor observed as follows:

"No doubt, in the absence of special
provisions as to how the person who is to
decide is to proceed, law will imply no
more than that the substantial requirements
of justice shall not be violated. He is not a
judge in the proper sense of the word; but
he must give the parties an opportunity of
being heard before him and stating their
case and their view. He must give notice
when he will proceed with the matter and
he must act honestly and impartially and
not under the dictation of some other
person or persons to whom the authority is
not given by law. There must be no
malversation of any kind. There would be
no decision within the meaning of the
statute if there were anything of that sort
done contrary to the essence of justice".

Lord Selbourne also added that the
essence of justice consisted in requiring
that all parties should have an opportunity
of submitting to the person by whose
decision they are to be bound, such
considerations as in their judgment ought to
be brought before him. All these cases lay
down the very important rule of natural
justice contained in the oft-quoted phrase
`justice should not only be done, but should
be seen to be done'.

26. Concept of natural justice has
undergone a great deal of change in recent
years. Rules of natural justice are not rules
embodied always expressly in a statute or
in rules framed thereunder. They may be
implied from the nature of the duty to be
performed under a statute. What particular
2 All. Leellu Vs. State of U.P. & Ors.
503
rule of natural justice should be implied
and what its context should be in a given
case must depend to a great extent on the
fact and circumstances of that case, the
frame-work of the statute under which the
enquiry is held. The old distinction between
a judicial act and an administrative act has
withered away. Even an administrative
order which involves civil consequences
must be consistent with the rules of natural
justice. Expression `civil consequences'
encompasses infraction of not merely
property or personal rights but of civil
liberties, material deprivations, and nonpecuniary damages. In its wide umbrella
comes everything that affects a citizen in
his civil life.

27. Natural justice has been variously
defined by different Judges. A few
instances will suffice. In Drew v. Drew and
Lebura, (1855) 2 Macg. 1, Lord Cranworth
defined it as `universal justice'. In James
Dunber Smith v. R., (1878) 3 A.C 614,
(PC) Sir Robort P. Collier, speaking for the
judicial committee of Privy council, used
the phrase `the requirements of substantial
justice', while in Arthur John Specman v.
Plumstead District Board of Works, (1885)
10 AC 229, the Earl of Selbourne, S.C.
preferred
the
phrase
`the
substantial
requirement of justice'. In Vionet v. Barrett,
(1885) 55 LJRD 39, Lord Esher, MR
defined natural justice as `the natural sense
of what is right and wrong'. While,
however, deciding Hookings v. Smethwick
Local Board of Health, (1890) 24 QBD
712, Lord Fasher, M.R. instead of using the
definition given earlier by him in Vionet's
case (supra) chose to define natural justice
as `fundamental justice' In Ridge v.
Baldwin, (1963) 1 QB 539, Harman LJ, in
the Court of Appeal countered natural
justice with `fair-play in action' a phrase
favoured by Bhagawati, J. In Maneka
Gandhi v. Union of India, [1978] 1 SCC
248. In H.K (an infant) in Re (1967) 2 QB
617, Lord Parker, CJ, preferred to describe
natural justice as `a duty to act fairly'. In
fairmount Investments Ltd. v. Secretary to
State for Environment, (1976) 1 WLR 1255
Lord Russell of Willowan somewhat
picturesquely described natural justice as `a
fair crack of the whip' while Geoffrey
Lane, LJ. In R. v. Secretary of State for
Home Affairs Ex Parte Hosenball, (1977) 1
WLR 766 preferred the homely phrase
`common fairness'.

28. How then have the principles of
natural justice been interpreted in the
Courts and within what limits are they to be
confined? Over the years by a process of
judicial interpretation two rules have been
evolved as representing the principles of
natural justice in judicial process, including
therein quasi-judicial and administrative
process. They constitute the basic elements
of a fair hearing, having their roots in the
innate sense of man for fair-play and justice
which is not the preserve of any particular
race or country but is shared in common by
all men. The first rule is `nemo judex in
causa sua' or `nemo debet esse judex in
propria causa sua' as stated in (1605) 12
Co. Rep.114 that is, `no man shall be a
judge in his own cause' Coke used the form
`aliquis non debet esse judex in propria
causa quia non potest esse judex at pars.
(Co.Litt. 1418), that is, `no man ought to be
a judge in his own case' because he cannot
act as Judge and at the same time be a
party' The form `nemo potest esse simul
actor et judex', that is, `no one can be at
once suitor and judge' is also at times used.
The second rule is `audi alteram partem',
that is, `hear the other side' At times and
particularly in continental countries, the
form `audietur at altera pars' is used,
meaning very much the same thing. A
504 INDIAN LAW REPORTS ALLAHABAD SERIES
corollary has been deduced from the above
two rules and particularly the audi alteram
partem rule, namely `qui aliquid statuerit
parte inaudita alteram actquam licet dixerit,
haud acquum facerit' that is, `he who shall
decide anything without the other side
having been heard, although he may have
said what is right, will not have been what
is right' (See Bosewell's case (1605) 6 Co.
Rep. 48-b, 52-a) or in other words, as it is
now expressed, `justice should not only be
done but should manifestly be seen to be
done' Whenever an order is struck down as
invalid being in violation of principles of
natural justice, there is no final decision of
the case and fresh proceedings are left
upon. All that is done is to vacate the order
assailed by virtue of its inherent defect, but
the proceedings are not terminated.

29. What is known as `useless
formality theory' has received consideration
of this Court in M.C. Mehta v. Union of
India, [1999] 6 SCC 237. It was observed
as under:

"22. Before we go into the final aspect
of this contention, we would like to state
that cases relating to breach of natural
justice do also occur where all facts are not
admitted or are not all beyond dispute. In
the context of those cases there is a
considerable case-law and literature as to
whether relief can be refused even if the
court thinks that the case of the applicant is
not one of `real substance' or that there is
no substantial possibility of his success or
that the result will not be different, even if
natural justice is followed. (See Malloch v.
Aberdeen Corpn., [1971] 2 All ER 1278,
(per Lord Reid and Lord Wilberforce),
Glynn v. Keele University, [1971] 2 All ER
89;
Cinnamond
v.
British
Airports
Authority, [1980] 2 All ER 368, CA and
other cases where such a view has been
held. The latest addition to this view is R.
v. Ealing Magistrates. Court, ex p.
Fannaran, (1996) 8 Admn. LR 351, (see de
Smith,
Suppl.
P.89)
(1998)
where
Straughton, L.J. held that there must be
`demonstrable beyond doubt that the result
would have been different. Lord Woolf in
Lloyd v. McMohan, [1987] 1 All ER 1118,
has also not disfavoured refusal of
discretion in certain cases of breach of
natural justice. The New Zealand Court in
McCarthy v. Grant, (1959) NZLR 1014
however goes halfway when it says that (as
in the case of bias), it is sufficient for the
applicant to show that there is `real
likelihood-not certainty- of prejudice.' On
the other hand, Garner Administrative Law
(8th Edn. 1996. pp.271-72) says that slight
proof that the result would have been
different is sufficient. On the other side of
the argument, we have apart from Ridge v.
Baldwin, (1964) AC 40 Megarry, J. in John
v. Rees, [1969] 2 All ER 274 stating that
there are always `open and shut cases. and
no absolute rule of proof of prejudice can
be laid down. Merits are not for the court
but for the authority to consider. Ackner, J
has said that the `useless formality theory'
is
a
dangerous
one
and,
however
inconvenient, natural justice must be
followed. His Lordship observed that
`convenience and justice are often not on
speaking terms'. More recently, Lord
Bingham has deprecated the `useless
formality theory' in R. v. Chief Constable
of the Thames Valley Police Forces, ex p.
Cotton (1990 IRLR 344) by giving six
reasons. (see also his article `Should Public
Law Remedies be Discretionary?" 1991
PL. p.64). A detailed and emphatic
criticism of the `useless formality theory
has been made much earlier in `Natural
Justice, Substance or Shadow' by Prof.
D.H. Clark of Canada (see 1975 PL.pp.2763) contending that Malloch (supra) and
2 All. Leellu Vs. State of U.P. & Ors.
505
Glynn (supra) were wrongly decided.
Foulkes (Administrative Law, 8th Edn.
1996, p.323), Craig (Administrative Law,
3rd Edn. P.596) and others say that the court
cannot prejudge what is to be decided by the
decision-making authority. De Smith (5th
Edn. 1994, paras 10.031 to 10.036) says
courts have not yet committed themselves to
any one view though discretion is always
with the court. Wade (Administrative Law,
5th Edn. 1994, pp.526-530) says that while
futile writs may not be issued, a distinction
has to be made according to the nature of the
decision. 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. We may also state that there is yet
another line of cases as in State Bank of
Patiala v. S.K. Sharma, [1996] 3 SCC 364
and Rajendra Singh v. State of M.P., [1996] 5
SCC 460 that even in relation to statutory
provisions requiring notice, a distinction is to
be made between cases where the provision
is intended for individual benefit and where a
provision is intended to protect public
interest. In the former case, it can be waived
while in the case of the latter, it cannot be
waived.

23. We do not propose to express any
opinion on the correctness or otherwise of
the `useless formality theory' and leave the
matter for decision in an appropriate case,
inasmuch as the case before us, `admitted
and indisputable' facts show that grant of a
writ will be in vain as pointed by
Chinnappa Reddy, J."

xx xxxx xxx xxx xxxx xxxx

30. But where an administrative
action is challenged as "arbitrary" under
Article 14 on the basis of Royappa [1974] 4
SCC 3 (as in cases where punishments in
disciplinary cases are challenged), the
question will be whether the administrative
order is ``rational'' or ``reasonable'' and the
test then is the Wednesbury test. The courts
would then be confined only to a secondary
role and will only have to see whether the
administrator has done well in his primary
role, whether he has acted illegally or has
omitted relevant factors from consideration
or has taken irrelevant factors into
consideration or whether his view is one
which no reasonable person could have
taken. If his action does not satisfy these
rules, it is to be treated as arbitrary. In G.B.
Mahajan v. Jalgaon Municipal Council,
[1991] 3 SCC 91 at p. 111 Venkatachaliah,
J. (as he then was) pointed out that
``reasonableness''
of
the
administrator
under Article 14 in the context of
administrative law has to be judged from
the stand point of Wednesbury rules. In
Tata Cellular v. Union of India, [1994] 6
SCC 651 at pp. 679-80), Indian Express
Newspapers Bombay (P) Ltd. v. Union of
India, [1985] 1 SCC 641 at p. 691,
Supreme Court Employees. Welfare Assn.
v. Union of India, [1989] 4 SCC 187 at p.
241 and U.P. Financial Corpn. v.