Holding

When an earlier court order is recalled, the court must restore the status‑quo ante and may decline to strike down a later order that would otherwise revive an earlier order passed in violation of natural justice.

Summary

The Union Government allotted a petrol pump site at San Martin Marg to Hindustan Petroleum Corporation Ltd. (HPCL), which was later re‑allotted to Bharat Petroleum Corporation Ltd. (BPCL) without notice, following a Supreme Court order in a public‑interest litigation. The Supreme Court subsequently recalled its earlier order, allowing BPCL to retain its original Ridge‑area site and directing the restoration of the San Martin Marg plot to HPCL. BPCL challenged the 10 March 1999 re‑allotment to HPCL on the ground of breach of natural justice, while HPCL sought restoration of its original plot. The Court held that, on the admitted facts, the recall of its earlier order mandated restitution of the status‑quo ante and that striking down the later order would unjustly give BPCL two plots. It further ruled that a court may refuse to set aside an order violating natural justice if doing so would revive an earlier, also unlawful, order. Consequently, the petition for HPCL (IA 481) was allowed and BPCL’s unnumbered petition was dismissed.

Issues considered

Whether a court exercising jurisdiction under Article 32/226 must set aside a governmental order passed in breach of natural justice even if doing so would restore an earlier order also passed in breach of natural justice.
Whether the court can refuse relief on the ground that no de facto prejudice is shown despite a violation of natural‑justice principles.

Subjects

natural justiceadministrative lawArticle 32Article 226restitutionnotice requirementpublic interest litigationallotment of landenvironmental lawcourt discretion

Judgment

M.C. MEHTA A
v.
UNION OF INDIA AND ORS.
RE: INDER MOHAN BENSIWAL
RE: BHARAT PETROLEUM CORPORATION LTD.

JULY 27, 1999 B

[S. SAGHIR AHMAD AND M. JAGANNNADHA RAO, JJ.]

Constitution of India, 1950:
c
Articles 32 and 226-Natural justice-Denial of-Court's discretion--
Nature and scope of-H was allotted site for petrol pump-Later Supreme
Court, in a PIL case relating to maintenance of environment, ordered Petrol
Pump B to Shift from Ridge area-Government allotting B at same site which
was allotted to H without notice to H-Subsequently, Supreme Court recalled
its earlier order and allowed B to continue in the old location-Original D
allotment of H, therefore, restored-No notice given to B-Held: 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-Therefore, on the admitted and
indisputable facts, namely, the recall of the earlier order of Supreme Court, E
it is mandatory for the Supreme Court to restore the status quo ante prevailing
on the date of its first order-Restitution is a must in these circumstances-
Hence, grant of writ in favour of B would be in vain-Articles 32 and 226-
Court's discretion-Nature and scope of-Order-Breaching natural justice-
Striking down of-Held: Not always necessary-Court can refuse to strike
down an order if such striking down would result in restoration of another F
order passed earlier in favour of the petitioner and against the opposite
party-Administrative Law.
}

I Natural justice-Statutory provisions-Notice-Waiver of-Held: Notice
may be _waived if a statutory provision is intended for individual benefit but
not if it is intended to protect interest. Natural justice-"Useless formality" G
theory-No opinion expressed on its correctness or otherwise.
...._
The respondent allotted a site for a petrol pump at San Martin Marg
to Hindustan Petroleum Corporation Ltd. (HPCL). However, the same site
was allotted to Bharat Petroleum Corporation Ltd. (BPCL), which was ordered H
1173
-4

1174 SUPREME COURT REPORTS [1999] 3 S.C.R.

A by this Court, in a public interest litigation relating to maintenance of
environment, to shift to a new location. But no notice was given to HPCL.

This Court later on recalled its earlier order regarding change of
location and allowed BPCL to continue in the old location. Thereafter, the
original allotment was restored to HPCL without giving a notice to BPCL.
B BPCL filed the present application in this Court for quashing of the order
of re-allotment to HPCL as it had been passed in breach of principles of
natural justice.
Dismissing the application, this Court
C HELD : 1. On the admitted and indisputable facts, namely, the recall
of this Court's earlier order, it becomes mandatory for this Court to restore
the status quo ante prevailing on the date of its first order. Restitution is
'ii must. Further Bharat Petroleum having got back its plot it cannot lay
further claim to the one at San Martin Marg, which was given to it only in
lieu of its original plot. Similarly, Hindustan Petroleum Corporation Ltd. has
D to get back its plot in san Martin Marg inasmuch as, otherwise, it will have
none and Bharat Petroleum will have two. Bharat Petroleum cannot retain
the advantage, which it got from an order of this Court, which has since been
withdrawn. Thus what is permissible and what is possible is a single view
and the case on hand comes squarely within the exception laid down in S.L
E Kapoor 's case. 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 a violation of principles of
natural justice. [1185-A-B)
SL Kapoor v. Jagmohan, [1980)4 SCC 379, relied on.

F Ridge v. Baldwin, (1964), AC 40, referred to.

. 2. It is not always necessary for the Court to strike down an order
merely because the order has been passed against the petitioner in breach
of natural justice. The Court can under Article 32 or Article 226 refuse to
exercise its discretion of striking down the order if another orde.r passed
G earlier in favour of the petitioner and against the opposite party in violation
of principles of natural justice or is otherwise not in accordance with law.
[1182-B)

Gadde Venkateswara Rao v. Government ofA.P., [1966)2SCR172 and
Mohammad Swalleh v. Third Addi. District Judge, [1998) 1 SCC 40, relied
H on.
r

M.C. MEHTA v. U.0.1. RE: J.M. BENSIWALRE: B.P.C. LTD. [M. JAGANNADHARAO,J.] 1175
3. Even in relation to statuto~ provisions requiring notice, a distinction A
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. [1184-F)

: State Bank of Patiala y. S.K. Sharma, (1996)3 SCC 364 and Rajendra B
Singh v. State of MP., [1996)6 SCC 460, relied on.

1 4. It is not necessary to express any opinion on the correctness or
othenvisef of the "useless formality" theory, inasmuch as, in the present
case, the "admitted and indisputable" facts show that grant of a writ in favour
of Bharat Petroleum will be in vain. [1184-G) C
Malloch v~ Aberdeen Corporation, [1971)1WLR1578, Glynn v. Keele
University, (1971)1WLR87; Cinnamondv. British Airport Authority, (1980)1
WLR 582; R. v. Ealing Magistrates' Court exp Fannarn, (1996) 8 Admn
LR 351; Lloydv. McMohan, (1987)2 WLR 821; McCarthy v. Grant, (1959) D
NZLR 1014 and John v. Rees, (1969)2 WLR 1294 R. v. Chief Constable of
the Thames Valley Police Forces, exp, Cotton, (1990) IRLR 344, referred
to. Lord Bingham : "Should Public Law Remedies be Discretionary?" 1991
PL, p.64 Prof. D.H. Clark of Canada: "Natural Justice Substance or Shadow"
1975 PL, pp. 27-63, Foulkes: "Administrative Law" Sth Edn. 1996, p.323,
Craig: "Administrative Law" 3rd Edn. P.596, De Smith: "Judicial Review of E
Administrative Action" 5th Edn. 1994 paras 10.031to10.036 and Wade:
"Administrative Law" 5th Edn. 1994, pp 526-530, referred to.

. CIVIL ORIGINAL JURISDICTION : 1.A.No.481 In I.A. No. I 8.
In W.P. (C) No.4677 of 1985 Etc.
F
Under Article 32 of the Constitution of India.

Gopal Subramanium, S.S. Ray, M.C. Mehta, Ms. Seema Midha, Sanjay
Kapur, Rahul Gupta, Vipin Gogia, Rajiv Mehta, A. Sharan, (Ranjit Kumar)
(A.C.), (V.B. Saharya) for Mis. Saharya & Co., Vijay Panjwanni, T.C. Sharma,
Dr. I.P. Singh , A.K. Srivastava, Imtiaz Ahmad Nagma Imtiaz and K.C. Kaushik G
for the appearing parties.

The Judgment of the Court was delivered by

M. JAGANNADHA RAO, J. The applicant in IA No. 481 is Sri Inder
Mohan Bensiwal who is an allottee of a retail outlet dealership for Petrol from H
1176 SUPREME COURT REPORTS [1999] 3 S.C.R.
'
A the Hindustan Petroleum Ltd. (8th respondent) (hereinafter called 'HPCL')
under a letter dated 16.11.1993. I.A. 481 is filed by him for restoration of the
San Marten Marg plot as a dealer of HPCL. The contesting party in the IA.481
is Bharat Petroleum Co. Ltd. and it has filed an independent IA also for
quashing the order dated 10.3. 1999 on the ground of violation of principles
B of natural justice.

The facts of the case are as follows:

Initially the HPCL wrote to the Land & development Officer, Ministry
of Urban Development for allotment of suitable site to the HPCL on 17.11.1993
and 24.1.1994 and an order was passed by the Deputy Land & Development
C Officer 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.

D But, the order of this Court in a public interest case changed the tum
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 30.1.91, allotting the plot
E 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 C<>urt
dated 28.4.1997 in the PIL case, HPCL and the applicant were not parties .
.F However. in a review petition filed by Bagga Link Road Filling Station in IA
185 in IA 18, this Court on 7.4.1998 recalled the order dated 28.4.1997 and
allowed the said dealer to continue where he was previously conducting his -
business at the Ridge area. It was also ordered that the "alternative space
allotted to the filling station (i.e. San Martin Mars) be withdrawn," and it was
. directed that "The Land & Development Officer may retain possession of
G the land which was proposed to be allotted to it (i.e Bagga Link Filling
-
· Station)." It is the case of Bharat Petroleum Corporation that pursuant to the
order of the Government of India dated 30. 7. 1997, it was put in possession
on 1.9.1997.
---
Soon after the passing of the order of the Supreme Court dated 7 .4.1998,
H recalling its earlier order dated 28.4.97, the HPCL wrote to the Land &
'
--< M.C.MEHTA~. U.O.I.RE:l.M.BENSIWALRE:B.P.C.LTD.[M.JAGANNADHARAO,J.) 1177
.._' Development Officer on 20.4.1998 for restoration of status quo ante, namely A
for restoration of the San Martin plot to the HPCL so that it could be given
back by its dealer, the a'pplicant, as originally contemplated. The applicant
also made representation on 18.5.1998. and 26.l l.1998. In the meantime, without
noticing the latter order of the Supreme Court, the joint Director (New Leases
allotted a site in Dwarka to HPCL on 26.11.98 for allotment to the HPCL in
substitution of the plot at San Martin Marg, for being given to the applicant. B
It was not noticed that Bharat Petroleum Corporation's plot at the Bagga Link-
Road Filling Station was to be restored to it and consequently HPCL could
get back its plot at san Martin Marg. But after the order of this Court dated
7.4.98 recalling its earlier order dated 28.4.97, Bharat Petroleum Corporation
started resisting the restoration of the status quo anate and wanted to retain c
the San Martin Marg plot as well as the one at Ridge area. That has resulted
in the present dispute.

The Government realised that once the order of the Supreme Court
dated 28.4.1997 was recalled on 7.4.1998, Bharat Petroleum could ~ot lay any
claim to San Martin Marg plot because its dealer, Link Filling Stat1on could D
retain the Ridge area location. Therefore, the Land & Development officer
passed another order on 10.3.1999 restoring the status quo ante before
28.4.1997 and also restoring the original allotment dated l 0. 7 .1996 to HPCL
for the purpose of the business of the applicant, who was HPCL's dealer. This
order was reiterated on 18.3.1999. This order was passed unfortunately without
notice to Bharat Petroleum Corporation. The Land & Development Officer
E
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.

On the ground that no notice was given to it, when the order dated
10.3.1999 was passed, Bharat Petroleum corporation filedC\VP No. 1689 of
F
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 its earlier order dated 18.4.1997 and G
that the High Court of Delhi could do nothing to allow Bharat Petroleum
corporation to retain San Martin Marg plot. SLP (c) No. 5502of1999 filed by
the said Bharat Petroleum corporation was also dismissed by this Coun on
19.4.1999.

Then Bharat Petroleum corporation filed an IA(unnumbered) on 26.3.1999 H
1178 SUPREME COURT REPORTS [1999) 3 S.C.R.

A in this Court for quashing the order dated 10.3.1999 as having been passed ..__.
in breach ofnatural justice. It has also filed an affidavit in IA 481 on 5.5.1999
opposing the applicant's claim for restoration of San Martin Marg plot of the
HPCL. This unnumbered IA has been tagged on with IA 481 filed by the
applicant, the dealer of HPCL.
......
B We have heard learned senior counsel Sri S.S. Ray for the Bharat
Petroleum corporation and Sri Gopal Subramanyam, learned senior counsel for
the HPCL, and Sri A. Sharan for the applicant (the dealer of HPCL) i.e. Sri
Inder Mohan Bensiwal.

Learned senior counsel for the Bharat Petroleum corporation Sri S.S.Ray
C contended that by .order dated 30. 7.1997 his clients were allotted the plot at
San Martin Marg, and that the said plot could not have been cancelled on
10 .3 .1999 and allotted on 24 .3 .1999 to the HPCL in cancellation of the order
dated 30. 7.1997 without issuing show cause notice to Bharat Petroleum
corporation. Learned senior counsel also submitted that after his clients were
D allotted this plot on 30.7.1997 at San Martin Marg, HPCL was given a plot at
Dwarka on 26.11.1998 in lieu of San Martin Marg plot and that HPCL could
not claim the plot at Dwarka as well the plot at San Martin Marg. An order
passed in violation of principles of natural justice was void and there was no
need to go into any question of prejudice and the Court had no discretion
to refuse relief. The fact that later on Bharat Petroleum corporation was
E allowed to retain the plot at the. Ridge for the Bagga Filling station by this
court was not relevant while dealing with the question of breach of principles
of natural justice.

On the other hand, learned senior counsel for the HPCL Sri Gopal
Subramanyam contended that this was not a fit case where this court should ·
F exercise discretion in favour of the Bharat Petroleum inasmuch as no de facto
prejudice had been shown. In the light of the admitted or indisputable facts,
even if fresh opportunity was given, it would not have made any difference
to the result because of the following facts : HPCL had an earlier allotment -·
. to the plot at San Martin Marg dated 10.7.1996 and when consequent to order
G in a PIL case that was withdrawn and allotted on 30.7.97 to Bharat Petroleum
corporation, no notice was given to HPCL or to its dealer, the applicant.
Further, the order of the Government dated 30.7.1997 in favour of Bharat
Petroleum corporation was passed as a consequence ofthe first order of this
Court dated 28.4.97 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
H Bharat Petroleum would also fall alongwith the order of this Court dated
J
M.C.MEHTAv. U.0.1.RE:l.M.BENSIWALRE:B.P.C.LTD.(M.JAGANNADHARAO,J.) 1179
I

=..."- .. 28.4.97. Bharat Petroleum Corporation suffered no prejudice because it retained A
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 all
consequences of its earlier order dated 28.4.1997 (which was recalled ) were
B
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
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 Bharat Petroleum c
corporation was, therefore, liable to be dismissed and IA 481 of the applicant
was to be allowed issuing appropriate directions.

On the above submissions, the following points arise for consideration:

(1) Whether this Court, in exercise of powers under Article 32 (or the D
High courts, generally under Article 226) is bound to declare an order of
government passed in breach of principles of ,natural justice as void or
whether the court can refuse to grant relief on the ground that the facts of
the case do not justify exercise of discretion to interfere or because de facto
prejudice has not been shown? E
(2) Whether the court is not bound under Article 32 (or High Courts
under Article 226) to quash an order of government on ground of breach of
natural justice if such an action will result in the restoration of an earlier order
of government which was also passed in breach of natural justice or which
was otherwise illegal?
F

Points 1&2 :

- These two points are connected and can be taken up together.
G
From the facts set out above, it is clear that the HPCL had an allotment
from the Government on 10.7.1996 of the San Martin Marg plot to be given
to its dealer, Sri Inper Mohan Bensiwal, the applicant in IA 481. That order
stood virtually set aside when the Government allotted the same plot on
30.7.1997 to Bharat Petroleum Corporation and this was done without notice
to HPCL nor to Inder Mohan Bensiwal. The background of the order dated H
1180 SUPREME COURT REPORTS .. {1999) 3 S.C.R.

A 30.7.1997 of the Government was that it was the result of certain directions
of this Court dated 28.4.1997 in a public interest case whereby a certain dealer
of the Bharat Petroleum near the Ridge area was to vacate that area. That
resulted in that dealer being allotted the San Martin Marg plot on 30.7.97
which was earlier allotted to HPCL. Later this Court on 7.4.1998 recalled its \
,
B order dated 28.4.1997 in the public interest case. Consequently, the Government
has now by order dated 10.3.1999 given back San Martin Marg plot to HPCL
but, no doubt, without notice being given to Bharat Petroleum to whom this
plot was allotted on 30.7.1997. In essence, the earlier order dated 30.7.97
against HPCL and the impugned order dated 10.3.99 against Bharat Petroleum
were both without notice to the respective affected parties.
c It is true that, whenever there is a clear violation of principles of natural
justice, the 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
D 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
E 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
latter order of this Court dated 7.4.98?

Courts are not infrequently faced with a dilemma between breach of the
F rules of natural justice and the Court's discretion to refuse relief even though
rules of natural justice have been breached, on the ground that no real
prejudice is caused to the affected party.
We shall initially refer to two cases where discretion was exercised not
to grant relief and the first one was a case where relief was refused even -
G though there was breach of natural justice. The first one is Gadde Venkteswara
Rao v. Government ofAndhra Pradesh and others, [1966] 2 SCR 172. There
the Panchayat Samithi, in exercise of its statutory powers passed a resolution
on 25.8.1960 to locste a primary health centre at Dharmajigudem. Later, it
passed another resolution on 29.5.1961 to locate it at Lingapalem. On a
representation by villagers of Dharmajigudem, government passed orders on
H 7.3.1962 setting aside the second resolution dated 29.5.1961 and thereby
M.C. MEHTA v. U.O.l. RE: I.M. BENSIWALRE: B.P.C. LTD. [M. JAGANNADHA RAO,J.) 1181
restoring the earlier resolution dated 25.8.1960. The result was that the health A
centre would continue at Dharmajigudem. Before passing the orders dated
7.3.62, no notice was given to the Panchayat Samithi. This Court traced the
said order of the government dated 7 .3 .1962 to Section 62 of the Act and if
that were so, notice to the Samithi under section 62(1) was mandatory. Later;
upon a review petition being filed, government passed another order on·
18.4.1963 cancelling its order dated 7 .3 .62 and accepting the shifting of the B
primary centre to Lingapalem. This was passed without notice to the villagers
ofDharmajigudem. This order of the government was challenged unsuccessfully
by the villagers of Dharmajigudem in the High Court. On appeal by the said
villagers to this Court, it was held that the latter order of the government
dated 18.4.1963 suffered from two defects, it was issued by Government C
without prior show cause notice to the villagers of Dharmajigudem and
government had no power of review in respect of government orders passed
under section 62(1). But that there were other facts which disentitled the
quashing of the order dated 18.4.63 even though it was passed in breach of
principles of natural justice. This Court noticed that the setting aside of the
latter order dated. 18.4.63 would restore the earlier order of Government dated D
7.3.62 which was also passed without notice to the affected party, namely, the
Panchayat Samithi. It would also result in the setting aside of a valid resolution
dated 29.5.61 passed by the Panchayat Samithi. This Court refused relief and
agreed that the High Court was right in not interfering under Article 226 even
if there was violation of natural justice. Subba Rao, J (as he then was) E
observed (p.189) as follows :

"Both the orders of the government, namely, the order dated March
7, 1962 and that dated April 18, 1963, were not legally passed: the
former, because it was made without giving notice to the Panchayat
Samithi and the latter, because the Government had no power under F
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 representatives of
Dharmajigudem village.

His Lordship concluded as follows :
G
"In those circumstances, was it a case for the High Court to interfere
in its discretion and quash the order of the government dated April
18, 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 H
1182 SUPREME COURT REPORTS [1999] 3 S.C.R,
I
A 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
order has been passed against the petitioner in breach of the natural justice.
B The Court can under Article 32 or Article 226 refuse to exercise its discretion
of striking down the order if such striking down will result in restoration of
another order passed earlier in favour of the petitioner and against the
opposite party, in violation of principles of natural justice or is otherwise not
in accordance with law.
c We would next refer to anoth.er case, where, though there was no breach
of principles of natural justice, this Court held that interference was not
necessary, if the result of interference would be the restoration of another
order which was 11ot legal Tn Mohammad Swalleh & Others v. Third Addi.
District Judge, Meerut and Another, [1988] 1 SCC 40, which arose under the
1
D U.P. Urban Buildings (Regulations of letting, Rent and Eviction) Act, 1972, the
prescribed authority dismissed an application filed by the landlord and this
was held clearly to be contrary to the very purpose of section 43(2)(rr) of the
Act. The District Court, entertained an appeal by the landlord and allowed the
landlord's appeal without noticing that such an appeal was not maintainable.
The tenant filed a writ petition in the High Court contending that the appeal
E of the landlord before the District Court was not maintainable. This was' a
correct plea. But the High Court refused to interfere. On further appeal by·thc:
tenant, this Court accepted that though no appeal lay to the District Court,
the refusal of the High Court to set aside the order of the District Judge was
correct as that would have restored the order of the prescribed authority,
p which was illegal.

Learned senior counsel for Bharat Petroleum contended that once natural
justice was violated, the Court was bounc! to strike down the ordt<rs +d
there
was no discretion to refuse relief and no other prejudice need be proved.

G It is true that in Ridge v. Baldwin, (1964) AC 40, it has been'held that
breach of principles of natural justice is in itself sufficient to grant relief and
that no further de facto prejudice need be shovvn. It is also true that the said .
principles have been followed by this Court in several cases but we might .A

point out that this Court has not laid down any absolute rule. This is c-lear
from the judgment of Chinnappa Reddy, J. in S.L. Kapoor v. Jagmohan;
H [1980] 4 sec 379. After stating (p. 395) that 'principles ofnaturaljustice kno~
-'

M.C.MEHTAl'. U.0.1.RE:I.M.BENSIWALRE:B.P.C.LTD.[M.JAGANNADHARAO,J.) 1183

of no exclusionary rule dependent on whether it would have made any A
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 (p.395) as follows :

"As we said earlier, where on the admitted or indisputable facts only B
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."

It is, therefore, clear that if on the admitted or indisputable factual C
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.

Before we go into the final aspects of this contention, we Wo_uld 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 D
cases there is a considerable case law and literature as to whether relief can
be refused even it 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 Corporation, (1971) l WLR 1578, (per Lord Reid and E
Lord Wilberforce), Glynn v. Keele University, (1971) WLR 87, Cinnamond v.
- British Airport Authority, (1980) l WLR 582 and other cases where such a
view has been held. The latest addition to this view is R. v. Ealing Magistrates'
court exp. Fannaran, (1996) 8 Admn. L.R. 351 (358) (See Desmith, Suppl..)
{l 998) where Straughton L.J. held that there must be 'demonstrable beyond
doubt' that the result would have been different. Lord Woolf in Lloyd v. F
McMohan, (1987) 2 WLR 821 (862) 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, G
Garner Administrative Law (8th Edition 1996, PP. 271-272) 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, Megarry J. in Johcn
v. Rees, (1969) 2 WLR 1294 stating that there are always 'open and s}.ut
cases' and no absolute rule of proof of prejudice can be laid down. Mr;rits
are not for the Court but for the authority to consider. Ackner, J. has saiiJ that H
1184 SUPREME COURT REPORTS [1999) 3 S.C.R.

A the "U'Seless 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 tl!e 'useless formality' theory in R. v. Chief Constable of the
Thames Valley Police Forces exp. Cotton, (1990) IRLR 344 by giving six
....•
B reasons. (see also his article 'should Public Law Remedies be discretionary?'
(1991) PL 64. A detailed and emphatic criticism of the 'useless formality
theory' has been made much earlier iri 'Natural Justice, substance or Shadow'
by Prof. D.H. Clark of Canada (see 1975) PL pp. 27-63 contending th.at Malloch
and Glynn were wrongly decided. Foulkes (Administrative Law, 8th Ed. 1996,
P. 323), Craig (Administrative Law, 3rd Ed. P. 596) and others say that the
C. Court cannot prejudge what is to be decided by the decision making authority.
DeSrnith (5th Ed. 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 Ed. 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
D 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 entitle to relief even if there is some remote
chance of success. We may, however, point out that even in cases where the
. E facts are not all admitted or beyond dispute, there is 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 ~hat there is yet another line of cases as in State Bank of Patiala
v. S.K. Sharma, [1996) 3 SCC 364, Rajendra Singh v. State of MP., [1996) 5
SCC 460, that even in relation to statutory provisions requiring notice, a
F distinction is to be made between cases where the provision is intended for
individual ben~fit and ·~here a provision is intended to protect public interest. ...
In the former case, it can be waived while in the case of the latter, it can be
waived.

G 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, in the case before us, "admitted and
indisputable" facts show that grant of a writ will be in vain as pointed out
by Chinnappa Reddy, J.

H In our view, on the admitted and indisputable facts set out above,
M.C.MEHTAv.U.0.1.RE:l.M.BENSIWALRE:B.P.C.LID.(M.JAGANNADHARAO,J.) 1185

namely, the recall of our earlier order of the Court, it becomes mandatory for A
-the court to restore the status quo ante prevailing on the date of its first order.
Restitution is a must. Further Bharat Petroleum having got back its plot at the
Ridge it cannot lay further claim to the one at San Martin Marg which was
given to it only'lieu of the Ridge plot. Similarly, HPCL has to get back its plot
in San Martin Marg inasmuch, otherwise, it will have none and Bharat Petroleum
will have two. Bharat Petroleum cannot retain the advantage which it got from B
an order of this Court which has since been withdrawn. Thus what is
permissible and what is possible is a single view and case on hand comes
squarely within the exception laid down by Chinnappa Reddy, J. in S.L.
Kapoor v. Jagmohan.

For the aforesaid reasons IA 481 is allowed and the unnumbered IA of
c
Bharat Petroleum is dismissed. In the circumstances, there will be no order as
to costs.

v.s.s. I.A. No. 481 allowed.
I.A. of Bharat Petroleum Corpn. Ltd. dismissed. D

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