# M/s Praveen Kumar Jain v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 1270
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-03
- **Bench:** Bala Krishna Narayana, Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-praveen-kumar-jain-v-state-of-u-p-ors-45164
- **Pages:** 10

## Headnote

A. Administrative law - Principles of
natural justice - principles of natural
justice have to be complied with - recent
trend - 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 nonobservance had prejudicially affected the
applicant - unless and until any prejudice
is caused to the petitioner, notice and
opportunity is not required to be given -
unless prejudice is shown, the impugned
order or action cannot be struck down .
(Para 11, 12, 21 & 28)

The terms and conditions of the contract not duly
complied with by the petitioner after submission
of his bid - the bid was rightly cancelled by the
respondents - security amount - rightly forfeited
as per Clause 30.3 of the ITB -The concept
`natural justice' is not a fixed one - Rules of
natural justice are not embodied rules and they
cannot be imprisoned within the strait-jacket of a
rigid formula - 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 - The petitioner can by no
means negate the admitted fact. (Para 10, 12, 28
& 30)

Writ Petition dismissed. (E-7)

List of cases cited: -

## Text

1 All. Suresh Jaiswal Vs. State of U.P. & Anr.
1271
order to examine whether the reference
was properly made and none of them
would cause prejudice to the rights and
contentions
of
the
parties
in
any
proceeding whether in the bunch before
the Division Bench, or in any other matter.

67. The reference to the Larger
Bench, accordingly, stands answered.

68. The writ petitions shall now be
placed before the regular Bench according
to the roster for disposal in light of the
above.
----------
(2020)1ILR 1270

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.07.2019

BEFORE
THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE PRAKASH PADIA, J.

Writ C No: 53982 of 2017

M/s Praveen Kumar Jain ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Dinesh Kumar Singh, Sri Sushil Kumar
Shukla

Counsel for the Respondents:
C.S.C.

A. Administrative law - Principles of
natural justice - principles of natural
justice have to be complied with - recent
trend - 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 nonobservance had prejudicially affected the
applicant - unless and until any prejudice
is caused to the petitioner, notice and
opportunity is not required to be given -
unless prejudice is shown, the impugned
order or action cannot be struck down .
(Para 11, 12, 21 & 28)

The terms and conditions of the contract not duly
complied with by the petitioner after submission
of his bid - the bid was rightly cancelled by the
respondents - security amount - rightly forfeited
as per Clause 30.3 of the ITB -The concept
`natural justice' is not a fixed one - Rules of
natural justice are not embodied rules and they
cannot be imprisoned within the strait-jacket of a
rigid formula - 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 - The petitioner can by no
means negate the admitted fact. (Para 10, 12, 28
& 30)

Writ Petition dismissed. (E-7)

List of cases cited: -

1. Russel v. Duke of Norfolk, (1949) 1 All ER
109: 65 TLR 225 (CA)

2. Byrne v. Kinematograph Renters Society,
(1958) 2 AllER 579: 1958 (1) WLR 762

3. Union of India v. P.K. Roy, AIR 1968 SC 850:
1968 (2) SCR 186

4. A.K. Kraipak v. Union of India, 1969 (2) SCC 262

5.Board of High School v. Kumari Chitra ,1970
(1) SCC 121

6. Malloch v. Aberdeen Corporation, 1971 (2)
AllER 1278 (HL)

7. S.L. Kapoor v. Jagmohan, 1980 (4) SCC 379

8. R.S. Dass v. Union of India, 1986 Supp SCC
617: 1987 (2) ATC 628

9. ECIL Vs. B. Karunakar, 1993 (4) SCC 727

10. State Bank of Patiala Vs. S. K. Sharma,
1996 (3) SCC 364: 1996 SCC (L & S) 717
1272 INDIAN LAW REPORTS ALLAHABAD SERIES
11. M. C. Mehta V. Union of India, 1999 (6)
SCC 237

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

13. Ajit Kumar Nag v. Indian Oil Corporation
Ltd., 2005 (7) SCC 764: 2005 SCC (L & S) 1020

14. Charan Lal Sahu v. Union of India, 1990 (1)
SCC 613 (Bhopal Gas Disaster)

15. P.D. Agrawal v. State Bank of India & Ors.
2006 (8) SCC 776: 2007 (1) SCC (L & S) 43

16. Ranjit Singh v. Union of India, 2006 (4)
SCC 153: 2006 SCC (L & S) 631

17. State of Punjab v. Amar Singh Harika, AIR
1966 SC 1313)

18. Haryana Financial Corporation and another
Vs. Kailash Chandra Ahuja, (2008) 9 SCC 31

19. Dharampal Satyapal Limited Vs. Deputy
Commissioner of Central Excise, Gauhati and
Others, (2015) 8 SCC 519

(Delivered by Hon'ble Prakash Padia, J.)

1. Heard Sri D. K. Singh, learned
counsel for the petitioner and learned
Standing
Counsel
on
behalf
of
respondents.

2. The petitioner has preferred the
present writ petition challenging the order
dated 24.10.2017 passed by the respondent
no.4 namely Superintending Engineer
Rural Engineering Department Meerut
Division, Meerut with the further prayer to
direct the respondent no.4 to execute the
agreement of package no.5257 in favour of
the petitioner adding the GST amount in
the bid of petitioner.

3. The facts in brief as contained in
the writ petition are that the petitioner is A
class registered Government Contractor.
The
respondent
no.4
published
an
advertisement
on
12.6.2014
inviting
tenders from registered Contractors for
upgrading of Meerut-Karnal road being
package number 5257 along-with other
packages. The petitioner submitted his
tender along-with other Contractors. In the
bid submitted by the petitioner it was
noted that if CGST and SGST is
implemented, the same shall be included
in the bid of the petitioner. The bid was
opened on 23.08.2017 and the bid of the
petitioner was duly accepted on 7.10.2017
but without adding the amount of GST and
as such the petitioner submitted an
application in this regard on 10.10.2017.

4. It is contended by Sri D. K. Singh,
learned counsel for the petitioner that
without considering the request of the
petitioner, the respondent no.4 issued a
letter dated 12.10.2017 to the effect that in
case the petitioner does not produce the
performance security till 16.10.2017 the
action will be taken against him as per
Clause No.30.3 of the ITB (General
Condition of Contract). After the aforesaid
letter was received by the petitioner, he
wrote a letter dated 14.10.2017 again
stating that he is not ready to sign the
contract without adding the amount of
GST. It is further contended that without
considering the aforesaid objection of the
petitioner respondent no.4 passed the order
dated 24.10.2017 by which the claim of
the petitioner was rejected and security
amount submitted by the petitioner was
forfeited. He further submitted that the
order dated 24.10.2017 passed by the
respondent no.4 is totally illegal and
arbitrary. The amount of security would be
forfeited only if the agreement has been
executed by the Contractor and after the
implementation
of
GST
by
the
Government,
it
was
a
mandatory
1 All. M/s Praveen Kumar Jain Vs. State of U.P. & Anr.
1273
requirement to add the GST in the
Contract. The amount of security would
only be forfeited after the acceptance of
the bid but since in the present case bid
itself was not accepted the amount of
security could not be forfeited. Further
argument was made that the order dated
24.10.2017 was passed without giving any
notice and opportunity to the petitioner.
The order dated 24.10.2017 was passed
without assigning any reasons.

5. In the counter affidavit filed by the
respondents it is stated that e-tender was
invited pursuance to the instructions as per
Standard Bidding Document for Pradhan
Mantri Gram Sadak Yojana (hereinafter
referred as PMGSY) for construction of
Meerut-Karnal Road, Rithali to Pali via
Chur Kalandi, District Meerut.

6. It is stated in paragraph 6 of the
counter affidavit that after going through
the entire standard bidding documents for
PMGSY, the petitioner applied for the
tenders. It is further stated that in the bid
amount GST was not added since when
the bids were invited at that time the GST
was not invoked. After the petitioner was
declared successful bidder, he was duty
bound to execute the bond but since the
bond was not executed by the petitioner
within time hence as per Clause 30.3 the
action was taken against him. Clause 30.3
of the Standard Bidding Documents reads
as follows :-

"Failure of successful bidder to
comply with the requirement of delivery of
Performance Security of two and a half
percent of Contract Price plus additional
security for unbalanced bids as per
provisions of Clause 30.1 shall constitute
sufficient ground for cancellation of award
and forfeiture of the Bid Security. Such
successful bidder who fails to comply with
the above requirements is liable to be
debarred from participating in bids under
PMGSY for a period of one year."

7. It was further argued that under
Clause 13.3. of the bid document it is
clearly provided that all duties, taxes,
royalties and other levies payable by the
Contractor under the Contract, or for any
other cause, shall be included in the rates,
prices, and total bid price submitted by the
Bidder.

8. In view of the aforesaid it was
argued by the learned Standing Counsel
appearing for the respondents that the
order passed by the respondent no.4 dated
24.10.2017 is absolutely perfect and valid
order and does not call for any interference
by this Court specially under Article 226
of the Constitution of India.

9. Heard learned counsel for the
parties and perused the record.

10. From perusal of the record it is
clear that after the bid was accepted on
4.9.2017 and the same was loaded on the
website, objections were invited within
five days. It is clear from the record that
the objection pertaining to GST was
submitted by the petitioner for the first
time on 15.9.2017. Since the terms and
conditions of the contract were not duly
complied with by the petitioner after
submission of his bid, the bid was rightly
cancelled by the respondents. In so far as
the security amount is concerned, the same
was rightly forfeited as per Clause 30.3 of
the ITB.

11. In so far as the notice and
opportunity is concerned, it is well settled
that unless and until any prejudice is
1274 INDIAN LAW REPORTS ALLAHABAD SERIES
caused to the petitioner, notice and
opportunity is not required to be given.
Nothing has been stated in the entire writ
petition nor any argument has been raised
by the learned counsel for the petitioner
that what prejudice has been caused to the
petitioner in the absence of opportunity of
hearing.

12. It is settled law that principles of
natural justice have to be complied with.
One of the principles of natural justice is
audi alteram partem ("Hear the other
side"). But it is equally well settled that the
concept `natural justice' is not a fixed one.
It has meant many things to many writers,
lawyers, jurists and systems of law. It has
many colours, shades, shapes and forms.
Rules of natural justice are not embodied
rules and they cannot be imprisoned within
the strait-jacket of a rigid formula.

13. Seven decades before in the case
of Russel v. Duke of Norfolk reported in
(1949) 1 All ER 109 : 65 TLR 225 (CA), it
was held that "There are, in my view, no
words which are of universal application
to every kind of inquiry and every kind of
domestic tribunal. The requirements of
natural justice must depend on the
circumstances of the case, the nature of the
inquiry, the rules under which the tribunal
is acting, the subject- matter that is being
dealt with, and so forth".

14. In the case of Byrne v.
Kinematograph Renters Society reported
in (1958) 2 AllER 579 :: 1958 (1) WLR
762, it was held that "What, then, are the
requirements of natural justice in a case of
this kind? First, I think that the person
accused should know the nature of the
accusation made; secondly, that he should
be given an opportunity to state his case;
and thirdly, of course, that the tribunal
should act in good faith. I do not think that
there really is anything more".

15. Similar view was taken by the
Supreme Court in the case of Union of
India v. P.K. Roy reported in AIR 1968
SC 850 : 1968 (2) SCR 186. The revelant
paragraph 11 of the aforesaid judgement is
quoted below:-

"(11)........the
extent
and
application of the doctrine of natural
justice cannot be imprisoned within the
strait jacket of a rigid formula. The
application of the doctrine depends upon
the nature of the jurisdiction conferred on
the administrative authority, upon the
character of the rights of the persons
affected, the scheme and policy of the
statute and other relevant circumstances
disclosed in the particular case".

16. Apart from the same in the
leading case of case of A.K. Kraipak v.
Union of India reported in 1969 (2) SCC
262 it was held that :-

"20.What
particular
rule
of
natural justice should apply to a given case
must depend to a great extent on the facts
and circumstances of that case, the
framework of the law under which the
enquiry is held and the constitution of the
Tribunal or body of persons appointed for
that purpose. Whenever a complaint is
made before a court that some principle of
natural justice had been contravened the
court has to decide whether the observance
of that rule was necessary for a just
decision on the facts of that case".

17. The Supreme Court in the case of
Board of High School v. Kumari Chitra
reported in 1970 (1) SCC 121 observed
that the Board cancelled the examination
1 All. M/s Praveen Kumar Jain Vs. State of U.P. & Anr.
1275
of the petitioner who had actually appeared at
the examination on the ground that there was
shortage in attendance at lectures. Admittedly,
no notice was given to the candidate before
taking the action. On behalf of the Board it was
stated that the facts were not in dispute and
therefore, `no useful purpose would have been
served' by giving a show cause notice to the
petitioner. The Supreme Court was pleased to
set aside the decision of the Board of holding
that the Board was acting in a quasi-judicial
capacity and, therefore, it ought to have
observed the principles of natural justice.

18. In the case of Malloch v.
Aberdeen Corporation reported in 1971
(2) AllER 1278 (HL), it was held that :-

"......It was argued that to have afforded
a hearing to the appellant 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)

19. In the case of S.L. Kapoor v.
Jagmohan reported in 1980 (4) SCC 379
it was held by the Supreme Court that :-

"24.......The
non-observance
of
natural justice is itself prejudice to any man
and proof of prejudice independently of proof
of denial of natural justice is unnecessary. It 'll
comes from a person who has denied justice
that the person who has been denied justice is
not prejudiced".
(emphasis supplied)

20. In the case of R.S. Dass v. Union
of India reported in 1986 Supp SCC 617
:: 1987 (2) ATC 628 it was held that :-

" 25. It is well established that
rules of natural justice are not rigid rules,
they are flexible and their application
depends
upon
the
setting
and
the
background of statutory provision, nature
of the right which may be affected and the
consequences
which
may
entail,
its
application depends upon the facts and
circumstances of each case".

21. 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.

22. In the case of ECIL Vs. B.
Karunakar reported in 1993 (4) SCC 727,
the Supreme Court after considering the
several cases was pleased to hold that "it
was only if the Court/Tribunal finds that
the furnishing of the report "would have
made a difference" to the result in the case
that it should set aside the order of
punishment."

23. The law laid down by the
Supreme Court in the aforesaid case was
again
reiterated
and
followed
in
subsequent cases by the Supreme Court
specially in the case of State Bank of
Patiala Vs. S. K. Sharma reported in 1996
(3) SCC 364 :: 1996 SCC (L & S) 717 and
M. C. Mehta V. Union of India reported
in 1999 (6) SCC 237.

24. In Aligarh Muslim University
Vs. Mansoor Ali Khan reported in (2000)
7 SCC 529, the Apex 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
1276 INDIAN LAW REPORTS ALLAHABAD SERIES
"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.

25. In the case of Ajit Kumar Nag v.
Indian Oil Corporation Ltd. reported in
2005 (7) SCC 764 :: 2005 SCC (L & S)
1020, it was held by the Supreme Court
that principles of natural justice are not
rigid or immutable hence they cannot be
imprisoned in the strait-jacket formula. It
was held by the Supreme Court that :-

"We are aware of the normal
rule that a person must have a fair trial
and a fair appeal and he cannot be asked
to be satisfied with an unfair trial and a
fair appeal. We are also conscious of the
general principle that pre- decisional
hearing is better and should always be
preferred to post- decisional hearing. We
are further aware that it has been stated
that apart from Laws of Men, Laws of God
also observe the rule of audi alteram
partem. It has been stated that the first
hearing in human history was given in the
Garden of Eden. God did not pass
sentence upon Adam and Eve before
giving an opportunity to show cause as to
why they had eaten the forbidden fruit.
[See R. v. University of Cambridge, (1723)
1 Str 557 : 93 ER 698] But we are also
aware that the principles of natural justice
are not rigid or immutable and hence they
cannot be imprisoned in a straitjacket.
They must yield to and change with
exigencies of situations. They must be
confined within their limits and cannot be
allowed to run wild. It has been stated: "
`To do a great right' after all, it is
permissible sometimes `to do a little
wrong'." [Per Mukharji, C.J. In Charan
Lal Sahu v. Union of India, 1990 (1) SCC
613 (Bhopal Gas Disaster), SCC p. 705,
para 124.] While interpreting legal
provisions, a court of law cannot be
unmindful of the hard realities of life. In
our opinion, the approach of the Court in
dealing with such cases should be
pragmatic rather than pedantic, realistic
rather than doctrinaire, functional rather
than formal and practical rather than
precedential".

(emphasis supplied)

26. In the case of P.D. Agrawal v.
State Bank of India & Ors. reported in
2006 (8) SCC 776 :: 2007 (1) SCC (L &
S) 43, this Court restated the principles of
natural justice and indicated that they are
flexible and in the recent times, they had
undergone a `sea change'. If there is no
prejudice to the employee, an action
cannot be set aside merely on the ground
that no hearing was afforded before taking
a decision by the authority.

27. The Supreme Court in the case of
Ranjit Singh v. Union of India reported in
2006 (4) SCC 153 :: 2006 SCC (L & S)
631 referring to the relevant case-law, was
pleased to held that :-

"In view of the aforementioned
decisions of this Court, it is now well
settled that the principles of natural justice
were required to be complied with by the
disciplinary
authority.
He
was
also
required to apply his mind to the materials
on record. The enquiry officer arrived at
findings which were in favour of the
appellant. Such findings were required (sic
sought)
to
be
overturned
by
the
disciplinary authority. It is in that view of
the matter, the power sought to be
exercised by the disciplinary authority,
1 All. M/s Praveen Kumar Jain Vs. State of U.P. & Anr.
1277
although not as that of an Appellate
Authority, but is akin thereto. The inquiry
report was in favour of the appellant but
the disciplinary authority proposed to
differ with such conclusions and, thus,
apart from complying with the principles
of natural justice it was obligatory on his
part, in the absence of any show-cause
filed by the appellant, to analyse the
materials on record afresh. It was all the
more necessary because even CBI, after a
thorough investigation in the matter, did
not find any case against the appellant and
thus, filed a closure report. It is, therefore,
not a case where the appellant was
exonerated by a criminal court after a fullfledged trial by giving benefit of doubt. It
was also not a case where the appellant
could be held guilty in the disciplinary
proceedings applying the standard of
proof as preponderance of the probability
as contrasted with the standard of proof in
a criminal trial i.e. proof beyond all
reasonable doubt. When a final form was
filed in favour of the appellant, CBI even
did not find a prima facie case against
him. The disciplinary authority in the
aforementioned peculiar situation was
obligated to apply its mind on the
materials brought on record by the parties
in the light of the findings arrived at by the
inquiry officer. It should not have relied
only on the reasons disclosed by him in his
show-cause notice which, it will bear
repetition to state, was only tentative in
nature. As the Appellate Authority in
arriving at its finding, laid emphasis on
the fact that the appellant has not filed any
objection to the show-cause notice;
ordinarily, this Court would not have
exercised its power of judicial review in
such a matter, but the case in hand
appears to be an exceptional one as the
appellant was exonerated by the inquiry
officer. He filed a show-cause but, albeit
after some time the said cause was
available with the disciplinary authority
before he issued the order of dismissal.
Even if he had prepared the order of
dismissal, he could have considered the
show-cause as he did not leave his office
by then. The expression "communication"
in respect of an order of dismissal or
removal from service would mean that the
same is served upon the delinquent
officer". (See State of Punjab v. Amar
Singh Harika reported in AIR 1966 SC
1313).

28. The Apex Court 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 judgment 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. 1283ab)

"....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)
1278 INDIAN LAW REPORTS ALLAHABAD SERIES

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".

29. The Supreme Court in the case of
Dharampal Satyapal Limited Vs. Deputy
Commissioner of Central Excise, Gauhati
and Others reported in (2015) 8 SCC 519
held as under :-

"there was no legal duty to
supply a hearing if a hearing would not
change the ultimate conclusion reached by
the
decision-maker.'
In
Dharampal
(Supra),
the
Supreme
Court,
while
answering the question whether recovery
proceedings could be initiated without a
show-cause notice under Section 11-A of
the Excise Act which was mandatory, held
that a show cause notice was required to
be issued before passing an order of
recovery irrespective of the fact whether
Section 11-A of the Excise Act was
attracted in the case and it was not open
for the authorities to dispense with the
requirement of the rules of natural justice
on the presumption that no prejudice was
to be caused to the aggrieved persons by
not issuing a show cause notice. At the
same time, the Supreme Court observed,
that the courts were empowered to
consider as to whether any purpose would
be served in remanding the case keeping
in mind whether any prejudice was caused
to the person against whom the action was
taken. In the aforesaid case, the Supreme
Court, while holding that there was an
infraction of the rules of natural justice
refused to interfere on behalf of the
assessee and remand back the matter to
the concerned authority to take fresh
decision after issuing a show cause notice
to the assessee as such an exercise, in the
facts of that case, would have been futile
and no prejudice was caused to the
assessee because of no show cause notice
having been issued to him.

In this regard the relevant
observations of the Supreme Court are
reproduced below :-

"
11.2.
Whether
recovery
proceedings can be initiated without showcause notice under Section 11-A of the
Excise Act, which is mandatory?

37. Therefore, we are inclined to
hold that there was a requirement of
issuance of show-cause notice by the
Deputy Commissioner before passing the
order of recovery, irrespective of the fact
whether Section 11-A of the Act is
attracted in the instant case or not.

39. We are not concerned with
these aspects in the present case as the
issue relates to giving of notice before
taking action. While emphasizing that the
principles of natural justice cannot be
applied in straight-jacket formula, the
aforesaid instances are given. We have
highlighted the jurisprudential basis of
adhering to the principles of natural
justice which are grounded on the doctrine
of
procedural
fairness,
accuracy
of
outcome leading to general social goals,
etc. Nevertheless, there may be situations
wherein for some reason - perhaps
because
the
evidence
against
the
individual is thought to be utterly
compelling - it is felt that a fair hearing
'would make no difference' - meaning
that a hearing would not change the
ultimate conclusion reached by the
decision-maker - then no legal duty to
supply
a
hearing
arises.
Such
an
1 All. M/s Praveen Kumar Jain Vs. State of U.P. & Anr.
1279
approach
was
endorsed
by
Lord
Wilberforce in Malloch v. Aberdeen
Corporation, who said that:

'...A
breach
of
procedure...cannot give (rise to) a remedy
in the courts, unless behind it there is
something of substance which has been
lost by the failure. The court dos not act in
vain'.

Relying on these comments,
Brandon LJ opined in Cinnamond v.
British Airports Authority that:

'...no one can complain of not
being given an opportunity to make
representations if such an opportunity
would have availed him nothing'. In such
situations, fair procedures appear to
serve no purpose since 'right' result can
be secured without according such
treatment to the individual.

40. In this behalf, we need to
notice one other exception which has been
carved out to the aforesaid principle by
the Courts. Even if it is found by the Court
that there is a violation of principles of
natural justice, the Courts have held that it
may not be necessary to strike down the
action and refer the matter back to the
authorities to take fresh decision after
complying
with
the
procedural
requirement in those cases where nongrant of hearing has not caused any
prejudice to the person against whom the
action is taken. Therefore, every violation
of a facet of natural justice may not lead
to the conclusion that order passed is
always null and void. The validity of the
order has to be decided on the touchstone
of 'prejudice'. The ultimate test is always
the same, viz., the test of prejudice or the
test of fair hearing.

43. In view of the aforesaid
enunciation of law, Mr Sorabjee may also
be right in his submission that it was not
open for the authority to dispense with the
requirement of principles of natural justice
on the presumption that no prejudice is
going to be caused to the appellant since
the judgment in R.C. Tobacco [(2005) 7
SCC 725] had closed all the windows for
the appellant.

44. At the same time, it cannot
be denied that as far as courts are
concerned,
they
are
empowered
to
consider as to whether any purpose
would be served in remanding the case
keeping in mind whether any prejudice is
caused to the person against whom the
action is taken. ....

45.
Keeping
in
view
the
aforesaid principles in mind, even when
we find that there is an infraction of
principles of natural justice, we have to
address a further question as to whether
any purpose would be served in remitting
the case to the authority to make fresh
demand of amount recoverable, only after
issuing notice to show cause to the
appellant. In the facts of the present case,
we find that such an exercise would be
totally futile having regard to the law laid
down by this Court in R.C. Tobacco
[(2005) 7 SCC 725].

48. Therefore, on the facts of
this case, we are of the opinion that nonissuance
of
notice
before
sending
communication dated 23-6-2003 has not
resulted in any prejudice to the appellant
and it may not be feasible to direct the
respondents to take fresh action after
issuing notice as that would be a mere
formality."

(Emphasis added)

30. 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
1280 INDIAN LAW REPORTS ALLAHABAD SERIES
defect
is
incurable;
no
amount
of
explanation can change the ultimate result,
being a fait accompli. The petitioner can
by no means negate the admitted fact.

31. In view of the same, we are of
the considered view that the order passed
by the respondent no.4 dated 24.10.2017
does not call for any interference by this
Court
under
Article
226
of
the
Constitution of India.

32. The writ petition is devoid of
merits and is accordingly dismissed.

33. No order as to costs.
----------
(2020)1ILR 1279

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.11.2019

BEFORE
THE HON'BLE PANKAJ MITHAL, J.
THE HON'BLE VIVEK AGARWAL, J.

Writ C No. 58399 of 2013

Shiv Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Uma Nath Pandey

Counsel for the Respondents:
C.S.C., Sri Ramendra Pratap Singh

A. The land Acquisition Act, 1894 -
Section 11 - award - acquisition is final
and conclusive - land acquired vests with
the Government - No provision under the
Land Acquisition Act or any other law
which directs for re-conveyance of the
acquired land to the tenure holders for
any
reason
-Government
Order
supplements the statutory provisions - no
overriding effect upon the statutory
provisions - if the Act does not provide
for the re-conveyance of the acquired
land to the erstwhile owners for any
reason, it cannot be done by means of a
simple Government Order - Petitioner
directed to pursue his remedy before the
appropriate authority. (Para 9, 10 & 15)

Land acquired under the provision of the Land
Acquisition Act not utilized by the Development
Authority for the industrial purpose - Petitioner
submitted representation before the Greater
Noida Industrial Development Authority for the
lease back of the land in view of the
Government Order. (Para 2, 5 & 6)

Held: - No writ in the nature of mandamus can
be issued to any authority to consider any
claim set up by any person on the basis of a
Government Order which is violative and
contrary to the provisions of the Land
Acquisition Act. (Para 12)

Writ Petition dismissed. (E-7)

List of cases cited: -

1. Ravindra Kumar Vs. District Magistrate, Agra
and others, 2005 (2) AWC 1650

(Delivered by Hon'ble Pankaj Mithal, J.
Hon'ble Vivek Agarwal, J.)

1. Heard Sri Uma Nath Pandey,
learned counsel for the petitioner and
learned
Standing
Counsel
for
the
respondents No. 1 and 2.

2. The petitioner by means of this
petition seeks a direction upon the
respondent No.3 Greater Noida Industrial
Development Authority to decide his
representation
dated
20.09.2013
for
leasing out the land which was acquired
from the petitioner in view of the
Government Order dated 24.04.2010.

3. There is no dispute to the fact that
the land of the petitioner, Khasra No. 356