Madhya Pradesh High Court
Mrs. Swati Patel vs The State Of Madhya Pradesh on 17 May, 2024
Author: Sheel Nagu
Bench: Sheel Nagu
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 17th OF MAY, 2024
REVIEW PETITION No. 105 of 2024
BETWEEN:-
MRS. SWATI PATEL W/O SHRI RAJESH
PATEL R/O 204, EKTA VIHAR COLONY,
BEHIND GANESH MANDIR, SHAKTI
NAGAR JABALPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI H.K. UPADHYAY - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH ITS PRINCIPAL SECRETARY
DEPARTMENT OF GENERAL
ADMINISTRATION (REVENUE) VALLABH
BHAWAN, MANTRALAYA, BHOPAL
(MADHYA PRADESH)
2. COLLECTOR CUM DISTRICT
MAGISTRATE OFFICE OF
COLLECTORATE BHOPAL (MADHYA
PRADESH)
3. ADDITIONAL DISTRICT COLLECTOR
JABALPUR DISTRICT JABALPUR
(MADHYA PRADESH)
4. TEHSILDAR CUM EXECUTIVE
MAGISTRATE, GORAKHPUR DISTRICT
JABALPUR (MADHYA PRADESH)
2
5. BANK OF INDIA A BODY CORPORATE
CONSTITUTED UNDER THE BANKING
COMPANIES (ACQUISITION AND
TRANSFER OF UNDERTAKING) AC 1970
THROUGH ITS CHIEF MANAGER AND
AUTHORISED OFFICER HAVING ITS
HEAD OFFICE AT STAR HOUSE C-5 G
BLOCK BANDRA KURLA COMPLEX
BANDRA (E) MUMBAI AND A BRANCH
OFFICE AMONGST OTHERS NAPIER
TOWN BRANCH, NEAR RUSSEL
CHOWK JABALPUR (MADHYA
PRADESH)
6. M/S TECHNOMECH A
PROPRIETORSHIP CONCERN
THROUGH ITS PROPRIETOR SMT.
SWATI PATEL W/O SHRI RAJESH PATEL
R/O 204 EKTA VIHAR COLONY BEHIND
GANESH MANDIR SHAKTI NAGAR
JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT NO.5/BANK BY SHRI PRAVEEN CHATURVEDI -
ADVOCATE)
(INTERVENER BY MS. UDITA MAINDIRETTA - ADVOCATE)
-----------------------------------------------------------------------------------------
This petition coming on for admission this day, Hon'ble Shri
Justice SHEEL NAGU passed the following:
ORDER
Present review petition has been filed seeking review of final
order dated 06.11.2023 passed in WP. No.27173/2023 whereby this
Court in a petition filed by petitioner-Bank of India raising the grievance
of non execution of an order passed u/S.14 of Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest
Act, 2002 (for brevity "SARFAESI Act") passed following order:-
"This petition filed under Article 226 of the Constitution does
not assail any specific order, but petitioner is aggrieved by
inaction on the part of respondent No. 4 to execute order of
Collector -Cum- District Magistrate (City), Jabalpur passed
on 13.04.2011 (Annexure P/1) u/S.14 of Securitisation and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (for brevity "SARFAESI Act").
2. Considering the short prayer made and with the consent of
other side, this petition is disposed of with a direction that in
case order dated 13.04.2011 (Annexure P/1) of Collector
-Cum- District Magistrate (City), Jabalpur has not yet been
executed, then the same shall be executed within 45 days
from the date of receipt of copy of this order by handing over
possession of secured asset to the petitioner-financial
institution.
3. With aforesaid direction, this petition stands disposed of
sans cost."
2. The sole ground taken in the present review petition is that
petitioner-borrower was not heard before passing order under review
and therefore the same is vitiated due to violation of principle of natural
justice (audi alteram partem).
2.1 In support of aforesaid contention, learned counsel for review
petitioner has relied upon decision of Apex Court in (2005) 13 SCC 777
(Kapra Mazdoor Ekta Union vs. Birla Cotton Spinning and Weaving
Mills Ltd. & Anr.)(Para 19) is pressed into service.
3. It is not disputed at the Bar that petitioner-borrower was neither
noticed nor heard before passing order under review, but that by itself
does not vitiate the order on the anvil of principle of audi alteram
partem unless petitioner-borrower demonstrates presence of prejudice.
4. The case of Ridge vs. Baldwin wayback in 1964 (1964 AC 40)
held that breach of principle of natural justice by itself can be treated as
prejudice and that no other "de-facto" prejudice needs to be proved.
However, rigors of this rule by passage of time have been relaxed not
only in England but also in our country. In S.L. Kapoor vs. Jagmohan
(1980) 4 SCC 379 such an argument was rejected. In the said case of
S.L. Kapoor (supra) exception was laid down, that if upon admitted and
undisputed facts only one conclusion was possible, then in such a case,
the principle that breach of natural justice was in itself prejudice, would
not apply. In other words, if no other conclusion was possible on
admitted and undisputed facts, then it was not necessary to quash the
order which is said to be passed in violation of principle of natural
justice.
4.1 The Apex Court reiterated this view in (2000) 7 SCC 529
(Aligarh Muslim University vs. Mansoor Ali Khan). Relevant portion
of said decision is reproduced below for ready reference and
convenience:-
"21. As pointed recently in M.C. Mehta v. Union of India
(1999) 6 SCC 237 there can be certain situations in which an
order passed in violation of natural justice need not be set
aside under Article 226 of the Constitution of India. For
example where no prejudice is caused to the person
concerned, interference under Article 226 is not necessary.
Similarly, if the quashing of the order which is in breach of
natural justice is likely to result in revival of another order
which is in itself illegal as in Gadde Venkateswara Rao v.
Govt. of A.P. AIR 1966 SC 828 it is not necessary to quash
the order merely because of violation of principles of natural
justice.
22. In M.C. Mehta it was pointed out that at one time, it was
held in Ridge v. Baldwin 1964 AC 40 that breach of
principles of natural justice was in itself treated as prejudice
and that no other "de facto" prejudice needed to be proved.
But, since then the rigour of the rule has been relaxed not
only in England but also in our country. In S.L. Kapoor v.
Jagmohan v. Chinnappa Reddy, J. (1980) 4 SCC 379
followed Ridge v. Baldwin and set aside the order of
supersession of the New Delhi Metropolitan Committee
rejecting the argument that there was no prejudice though
notice was not given. The proceedings were quashed on the
ground of violation of principles of natural justice. But even
in that case certain exceptions were laid down to which we
shall presently refer.
23. Chinnappa Reddy, J. in S.L. Kapoor case laid down two
exceptions (at SCC p. 395) namely, if upon admitted or
indisputable facts only one conclusion was possible, then in
such a case, the principle that breach of natural justice was
in itself prejudice, would not apply. In other words if no other
conclusion was possible on admitted or indisputable facts, it
is not necessary to quash the order which was passed in
violation of natural justice. Of course, this being an
exception, great care must be taken in applying this
exception.
24. The principle that in addition to breach of natural justice,
prejudice must also be proved has been developed in several
cases. In K.L. Tripathi v. State Bank of India (1984) 1 SCC
43 Sabyasachi Mukharji, J. (as he then was) also laid down
the principle that not mere violation of natural justice but de
facto prejudice (other than non-issue of notice) had to be
proved. It was observed, quoting Wade's Administrative Law
(5th Edn., pp. 472-75), as follows: (SCC p. 58, para 31)
"[I]it is not possible to lay down rigid rules as to when the
principles of natural justice are to apply, nor as to their
scope and extent. ... There must also have been some real
prejudice to the complainant; there is no such thing as a
merely technical infringement of natural justice. The
requirements of natural justice must depend on the facts and
circumstances of the case, the nature of the inquiry, the rules
under which the tribunal is acting, the subject-matter to be
dealt with, and so forth."
Since then, this Court has consistently applied the principle
of prejudice in several cases. The above ruling and various
other rulings taking the same view have been exhaustively
referred to in State Bank of Patiala v. S.K. Sharma (1996) 3
SCC 364. In that case, the principle of "prejudice" has been
further elaborated. The same principle has been reiterated
again in Rajendra Singh v. State of M.P. (1996) 5 SCC 460
25. The "useless formality" theory, it must be noted, is an
exception. Apart from the class of cases of "admitted or
indisputable facts leading only to one conclusion" referred to
above, there has been considerable debate on the application
of that theory in other cases. The divergent views expressed
in regard to this theory have been elaborately considered by
this Court in M.C. Mehta referred to above. This Court
surveyed the views expressed in various judgments in
England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord
Bingham, Megarry, J. and Straughton, L.J. etc. in various
cases and also views expressed by leading writers like Profs.
Garner, Craig, de Smith, Wade, D.H. Clark etc. Some of them
have said that orders passed in violation must always be
quashed for otherwise the court will be prejudging the issue.
Some others have said that there is no such absolute rule and
prejudice must be shown. Yet, some others have applied via
media rules. We do not think it necessary in this case to go
deeper into these issues. In the ultimate analysis, it may
depend on the facts of a particular case.
26. It will be sufficient, for the purpose of the case of Mr
Mansoor Ali Khan to show that his case will fall within the
exceptions stated by Chinnappa Reddy, J. in S.L. Kapoor,
namely, that on the admitted or indisputable facts, only one
view is possible. In that event no prejudice can be said to
have been caused to Mr Mansoor Ali Khan though notice has
not been issued."
Similar view has subsequently been taken in (1984) 1 SCC 43
(K.L. Tripathi v. State Bank of India), (1996) 3 SCC 364 (State Bank
of Patiala v. S.K. Sharma) and (1996) 5 SCC 460 (Rajendra Singh v.
State of M.P.).
5. Learned counsel for review petitioner has not been able to
demonstrate that prejudice was caused to him as it is admitted by him
that there was no protective judicial order of any other Forum in his
favour when order under review was passed.
6. In the conspectus of above discussion, this Court is of the
considered view that in absence of demonstration of any element of
prejudice caused to review petitioner, there is no palpable error visible
in the order under review.
7. Accordingly, present review petition stands dismissed.
(SHEEL NAGU) (VIVEK JAIN)
JUDGE JUDGE
mohsin
Date: 2024.05.20 10:37:10 +05'30'
