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High court ro practice test

created Oct 17th, 09:33 by VikasChandra



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Court No. - 35  
Case :- WRIT - C No. - 13427 of 2020  
Petitioner :- Krishna Nand Rai  
Respondent :- State Of U P And 2 Others  
Counsel for Petitioner :- Syed Wajid Ali, Rachna Vyas  
Counsel for Respondent :- C.S.C.  
Hon'ble Manoj Kumar Gupta,J.  
Hon'ble Dr. Yogendra Kumar Srivastava,J.  
The instant petition has been filed challenging the order dated 24.6.2020, passed by District Magistrate, Gorakhpur (respondent no. 2 herein), whereby the petitioner's certificate of being a dependent of freedom fighter dated 6.9.2001 has been cancelled. The order records that the petitioner is great grandson of late Ram Chandra Rai, who was a freedom fighter. The benefit of being dependent of freedom fighter is available only to descendants upto the stage of grandson and not beyond it, i.e. a great grandson or descendants lower in line would not come within the definition of 'dependent of freedom fighter'.  
The sole contention of learned counsel for the petitioner is that the impugned order has been passed without any notice or opportunity of hearing to the petitioner.  
On query made by the Court as to how the petitioner would come within the definition of 'dependent of freedom fighter', Sri Syed Wajid Ali, learned counsel for the petitioner very fairly admitted that the petitioner would be beyond the sweep of the definition of dependent of freedom fighter as defined in Government Orders issued in this regard. He only reiterated his contention that since the impugned order has been passed without notice to the petitioner, therefore it is illegal.  
Learned counsel for the petitioner has placed reliance upon judgments of the Supreme Court in Dattu Namdev Thakur vs. State of Maharashtra and Others, 2012 AIR SCW 203; Uma Nath Pandey and Others vs. State of U.P. and Another, 2009 AIR SCW 3200 and Asit Kumar Kar vs. State of West Bengal and others, 2009 (2) AWC 1628 in submitting that the impugned order, being in violation of principles of natural justice, is liable to be quashed.  
In Asit Kumar Kar (supra), the Supreme Court re-emphasised that an order having adverse consequences should not be passed without hearing the person affected thereby. Reliance was placed on the Seven Judge Constitution Bench judgement in A.R. Antuley vs. R.S. Nayak and another, 1988 (2) SCC 602, where in paragraph 55, the Supreme Court observed as follows :-  
"so also the violation of the principles of natural justice renders the act a nullity".  
The next judgement of the Supreme Court in Uma Nath Pandey (supra), while considering the principles of natural justice also took note of the 'useless formality' theory. The observations made in earlier judgement in M.C. Mehta vs. Union of India and others, 1999 (6) SCC 237 were alluded to. The 'useless formality' theory stipulates that in cases where despite non-observance of the principles of natural justice, the ultimate result is bound to remain the same; where there is no other view possible even if opportunity of hearing is afforded to the aggrieved parties, then such are the cases where impugned action cannot be struck down on ground of violation of principles of natural justice nor are such cases required to be remitted back to the authorities for a fresh decision after giving show cause notice or opportunity of hearing, as it will be an empty formality, a mere ritual. After taking notice of the said doctrine, it was observed as follows :-  

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