TMI Blog1999 (7) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... on 7.9.1994 allotting a site described as Site B. But finally by order, dated 10.7.1996, a site at San Martin Marg, Chanakyapuri, New Delhi, was allotted by the Land Development Officer to HPCL for the purpose of the petrol station of the applicant 3. But, the order of this court in a public interest case has changed the turn of events. On 28.4.1997, this court passed an order in the public interest litigation relating to maintenance of environment in the Ridge area, for shifting the Bagga Link Road Filling Station (not party before us) who is a dealer with Bharat Petroleum Corporation from the Ridge area. Consequent thereto, the Urban Development Department passed an order on 30.7.97, allotting the plot at San Martin Marg to Bharat Petroleum Corporation. That plot was already allotted to HPCL as stated above. It is an admitted fact that the department did not give any notice to HPCL nor to the applicant before taking away the San Martin plot and allotting it to Bharat Petroleum. To the order of this court, dated 28.4.1997 in the PIL, case, HPCL and the applicant were not parties. 4. However, in a review petition filed by Bagga Link Road Filling Station in IA 185 in IA 18, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1999. This order was passed unfortunately without notice to Bharat Petroleum Corporation. The Land Development Officer delivered back possession to HPCL on 24.3.1999. It may also be noted that on 6.4.1999, the alternative site allotted to HPCL at Dwarka on 26.11.1998 was withdrawn because HPCL was getting back San Martin Marg plot. 7. On the ground that no notice was given to it, when the order, dated 10.3.1999 was passed, Bharat Petroleum Corporation filed CWP No. 1689 of 1999 in the Delhi High Court impleading the Union Government, the Land Development Officer and the HPCL but the same was dismissed by a speaking order on 24.3.1999 holding that the impugned order, dated 10.3.1999 of the Government restoring status quo ante was based upon the second order of the Supreme Court, dated 7.4.1998 recalling the earlier order, dated 28.4.1997 and that the High Court of Delhi could do nothing to allow Bharat Petroleum to retain San Martin Marg plot. SLP (C) No. 5502 of 1999 filed by the said Bharat Petroleum Corporation was also dismissed by this court on 19-4-1999. 8. Then Bharat Petroleum Corporation filed an IA (unnumbered) on 26.3.1999 in this court for quashing the order, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petroleum was passed as a consequence of the first order of this court, dated 28.4.1997 in the PIL case and when this court, on 7.4.98, had withdrawn the order, dated 28.4.97, the order, dated 30.7.97 of allotment to Bharat Petroleum would also fall alongwith the order of this court, dated 28.4.97. Bharat Petroleum Corporation suffered no prejudice because it retained its original allotment of plot at the Ridge. The said corporation could not lay claim for two plots, one at the Ridge and the other at San Martin Marg. Further, learned senior counsel made an alternative submission, namely, that the court had a duty to pass an order in the nature of restitution so that an consequences of its earlier order, dated 28.4.1997 (which was recalled) were set at naught. Learned senior counsel also pointed out that after the impugned order, dated 10.3.1999 was passed restoring San Martin Marg plot to HPCL, possession was also delivered to HPCL on 24.3.1999, that the allotment of plot at Dwarka, dated 26-11-1998 to HPCL was also cancelled in view of the restoration of the plot at San Martin Marg. HPCL could not be a loser of its plot at San Martin Marg and also the one at Dwarka. The IA of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he courts can be approached for a declaration that the order is void or for setting aside the same. Here the parties have approached this court because the orders of the department were consequential to orders of this court. Question, however, is whether the court in exercise of its discretion under Article 32 or Article 226 can refuse to exercise discretion on facts or on the ground that no de facto prejudice is established. On the facts of this case, can this court not take into consideration the fact that any such declaration regarding the 10.3.1999 order will restore an earlier order, dated 30.7.1997 in favour of Bharat Petroleum Corporation which has also been passed without notice to HPCL and that if the order, dated 10.3.1999 is set aside as being in breach of natural justice, Bharat Petroleum will be getting two plots rather than one for which it has no right after the passing of the later order of this court, dated 7.4.98 ? 16. Courts are not infrequently faced with a dilemma between breach of the rules of natural justice and the court's discretion to refuse even though rules of natural justice have been breached, on the ground that no real prejudice is caused to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws : Both the orders of the Government, namely, the order, dated 7 March, 1962, and that of, dated 18 April, 1963, were not legally passded : the former, because it was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power under section 72 of the Act to review an order made under section 62 of the Act and also because it did not give notice to the representatives of Dharmajigudem village. His Lordship concluded as follows : In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government, dated 18 April, 1963 ? If the High Court had quashed the said order, it would have restored an illegal order - it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case. The above case is clear authority for the proposition that it is not always necessary for the court to strike down an order merely because the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating (page 395) that 'principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed' and that 'non-observance of natural justice is itself prejudice to a man and proof of prejudice independently of proof of denial of natural justice is unnecessary', Chinnappa Reddy, J., also laid down an important qualification (page 395) as follows : As we said earlier, where on the admitted or indisputable facts, only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice, but because courts do not issue futile writs. 21. It is, therefore, clear that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the court need not issue a writ merely because there is violation of principles of natural justice. 22. Before we go into the final aspects of this contention, we would like to state that cases relating to breach of natural justice do also occur where all fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e much (of) earlier in 'Natural justice, Substance or Shadow' by Prof. D. H. Clark of Canada (see 1975 PL, pages 27-63) contending that Malloch [1971] 1 W.L.R. 1578 ] and Glynn [1971] 1 W.L.R. 87] were wrongly decided. Foulkes (Administrative Law, 8th Edition, 1996, pages 323), Craig Administrative Law, 3rd Edition, page 596, and others say that the court cannot prejudge what is to be decided by the decision making authority. De Smith, 8th Edition, 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 Edition, 1994, pages 526-530, say 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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