Telangana High Court

J.J. Hospital vs The State Of Telangana on 28 September, 2021

Bench: P Naveen Rao

     IN THE HIGH COURT OF JUDICATURE FOR THE STATE OF
                        TELANGANA
                           ********

WRIT PETITION No.19872 of 2021

J J Hospital Plot No 57 Kalyan Nagar Pt Phase Behind T B Hospital Hyderabad 38 Rep by its Proprietor Dr L Jayanthi Reddy ....Petitioner

And The State of Telangana Rep by its Secretary Health Medical and Family Welfare Department Secretariat Buildings Hyderabad & others

....Respondents

DATE OF JUDGMENT PRONOUNCED : 28.09.2021

THE HON'BLE SRI JUSTICE P.NAVEEN RAO

1. Whether Reporters of Local Newspapers : No may be allowed to see the Judgments ?

2. Whether the copies of judgment may be : Yes marked to Law Reporters/Journals

3. Whether Their Lordship wish to : No see the fair copy of the Judgment ?

*THE HON'BLE SRI JUSTICE P.NAVEEN RAO

+WRIT PETITION No.19872 of 2021

%28.09.2021

# J J Hospital Plot No 57 Kalyan Nagar Pt Phase Behind T B Hospital Hyderabad 38 Rep by its Proprietor Dr L Jayanthi Reddy ....Petitioner

Vs.

$ The State of Telangana Rep by its Secretary Health Medical and Family Welfare Department Secretariat Buildings Hyderabad & others

.... Respondents

!Counsel for the petitioners : Sri T.Bala Mohan Reddy

Counsel for the Respondents: Government Pleader for Medial & Health for respondents 1 to 3

<Gist :

>Head Note:

? Cases referred:

(1987) 4 SCC 391= AIR 1987 SC 2235.

AIR 1972 SC 1089 (1980) 4 SCC 379 (1999) 6 SCC 237 (1996) 3 SCC 364 1998 (1) ALD 595= 1998 (1) ALT 212

HONOURABLE SRI JUSTICE P. NAVEEN RAO

WRIT PETITION No. 19872 of 2021 ORAL ORDER:

Heard learned counsel for petitioner Sri. T. Bala Mohan Reddy and

learned Government Pleader for Medical and Health for respondents

1 to 3.

2. This writ petition is filed seeking following directions:

"...........to grant an order direction or writ more so in the nature of Writ of Mandamus declaring the action of the 2nd respondent in rejecting the Petitioners application for renewal dated 16.06.2021 vide Application No.0050505 vide proceedings bearing Rc.No.19/PC and PNDT/DMHO/ HYD/2021 dated 16.08.2021 on the ground of pending criminal case in C C No 1542/2018 on the file of the Learned III Additional Chief Metropolitan Magistrate at Hyderabad as illegal arbitrary highhanded violative of principles of natural justice apart from being violative of Articles 14 and 19 of the Constitution of India and in violation of Rule 8 (3) of PC and PNDT Prohibition of Sex Selection Rules 1996 and with a consequent prayer to set aside the proceedings of rejection issued by the 3rd Respondent on behalf of 2nd respondent vide proceedings bearing Rc.No.19/PC and PNDT/DMIIO/HYD/2021 dated 16.08.2021 and pass........"

3. Petitioner is a Multi Speciality Hospital, registered under the

Pre-Conception and pre-Natal Diagnostic and Techniques Act, 1994 and

Rules made thereunder on 25.8.2006 valid for a period of five years.

The registration was renewed on 25.8.2011 and on 25.8.2016.

The last renewal was valid up to 24.8.2021. Petitioner applied for

renewal of registration well in advance. His application for renewal was

rejected by orders dated 3.7.2021. Aggrieved thereby, petitioner filed

W.P. No. 17634 of 2021. This Court by order dated 29.7.2021 sets aside

the order of rejection on the ground that incompetent authority has

taken the decision and remanded the matter to the second respondent to

take a decision afresh on the application submitted by the petitioner for

renewal of registration. Pursuant to the directions of this Court, by order

dated 16.8.2021 second respondent rejected the application of the

petitioner. The renewal application is rejected on the ground that

C.C.No. 1542 of 2018 on the file of the III ACMM Court, Hyderabad is

pending. The said rejection order is under challenge in this writ petition.

4.1 According to learned counsel for petitioner, the order is

ex-facie illegal, the decision is arbitrarily made, contrary to settled

principle of law. Rule 8 of Pre-Conception and Pre-Natal Diagnostic

Techniques (Prohibition of Sex Selection) Rules, 1996 (for short the

Rules, 1996) envisages 'Renewal of registration'. Sub Rule 3 of

Rule 8 mandates opportunity of hearing before the application for

renewal is rejected. That being so, no opportunity of hearing was

afforded to the petitioner offending the statutory mandate and on that

ground alone, the order is liable to be set aside.

4.2. Learned counsel for petitioner further contended that even

though petitioner has remedy of appeal, since the decision is in violation

of Rule 8 (3) of the Rules, 1996, petitioner need not be compelled to avail

the remedy of appeal. The decision is ex-facie illegal and not exhausting

the remedy of appeal is not fatal to maintainability of the writ petition.

He further submits that not availing the remedy of appeal is not a bar for

this Court to entertain the writ petition and test the validity of impugned

order in the teeth of Rule 8 (3) of the Rules, 1996. He further submits

that on account of the rejection of the renewal, grave injustice is caused

to the petitioner and entire functioning of the hospital is paralyzed. The

scanning machine is essential to assess the health and growth of the

foetus in the womb of a mother and it is causing great hardship to the

hospital in treating the in-patients.

5. Learned Assistant Government Pleader submitted that since

petitioner is facing trial in a criminal case, the registration cannot be

renewed.

6. Advancement in Science and Technology in medical

diagnostics is helping in extending better health care and better

management of a patient. The Ultra Sound scanning machinery is

helping the Doctor to assess the health of foetus at various stages of

growth and to advise the mother how to take care of herself during

pregnancy. Modern technology is also helping the couple to overcome

problem in conception and to take treatment. The technology is also

helping to detect genetic abnormalities, metabolic disorders,

chromosomal abnormalities congenial malformations, etc. Now it is also

possible to know the sex of the foetus. The possibility of knowing the sex

of the foetus is misused more often than not. Technology is used for sex

selection even before conception.

7. It is unfortunate but a stark reality that to many families in

India a girl child is unwelcome more so, if it is a second child. The

overall sex ratio loaded against women is not accidental. Statistics on

the child sex ratio reveal that from 976 to 1000 ratio in the year 1961,

it went down to 918 to 1000 ratio in the year 2011. The fall in female sex

ratio is wide spread, across the country, with no distinction in rural or

urban areas. Whenever a woman conceives, the first thing the husband

and family members want to know is whether the foetus in the womb is

a girl or a boy. If it is found to be a girl, then pressurize the woman to

terminate the pregnancy, even at the cost of life of that woman. These

incidents are more if it is a second girl. No resistance by the woman is

tolerated. The woman is harassed, humiliated, ill-treated and physically

assaulted. There are several instances of forcible termination of

pregnancy even at advanced stage or abandoning/killing the girl child

after the birth. Availability of Ultra-Sound scanning machines and

other modern equipment are used to perpetrate this evil social practice.

Many diagnostic centers / hospitals / clinics are aiding and abetting

such practices to earn quick money. It appears the volume of business

is more than Rs.1000 crores. Though, legal framework is put in place

and awareness is created, this social evil is still prevalent.

8. Concerned with such illegal practices and to overcome the

growing problem of selective termination of pregnancy after determining

the sex of foetus by using pre-natal sex determination, the Indian

Parliament enacted Pre-conception and Pre-natal Diagnostic Techniques

(Prohibition of Sex Selection) Act, 1994 (for short the Act, 1994). The

object of the Act, 1994 is to provide law prohibiting sex selection before

or after conception and regulation of pre-natal diagnostic techniques.

The statutory frame work is made with primary objective of discouraging

such practices and misuse of the modern machines for sex determination

of foetus, leading to female foeticide and to prevent illegal practices in

matters relating to conception. The Act is comprehensive and puts in

place strict regime covering the field of its application. The Act not only

prescribes procedure of registration of the laboratories/diagnostic

centers/ hospitals etc, it also requires registration of concerned

machines, and periodical monitoring of the use of those machines by the

centers and by the Medical Practitioners and maintenance of

registers etc. The Act takes in its fold all stake holders,

i.e., the manufacturers, the suppliers, the centers which use the

machinery, the authorities who are required to enforce the law and the

end users. The Act also envisages penal provisions against violators.

9. Chapter II of the Act, 1994 prescribes mechanism to regulate

Genetic Counseling Centers, Genetic Laboratories and Genetic Clinics.

It prohibits these centers and the medical practitioners from conducting

activities relating to pre-natal diagnostic techniques. It prohibits sex

selection. Section 3-B prohibits sale of Ultrasound machines and similar

kind of machinery to persons, laboratories, clinics etc which are not

registered under the Act, 1994. Chapter III provides mode of regulation

of pre-natal diagnostic techniques. Chapter VI deals with Genetic

Counseling Centers, Genetic Laboratories and Genetic Clinics. Section

18 mandates that a centre having ultrasound or imaging machine or

scanner or any other technology capable of undertaking determination of

sex of foetus and sex selection or to render services to any of them must

As per Section 19 (3) every certificate of registration shall be renewed in

such manner and after such period and on payment of such fees as may

be prescribed.

10. Pre-Conception and Pre-Natal Diagnostic Techniques

(Prohibition of Sex Selection) Rules, 1996 (for short the Rules) were

notified in exercise of power vested by Section 32 of the Act. The Rules

give effect to the objectives of the Act. Rule 6 prescribes Certificate of

Registration; Rule 8 prescribes procedure of Renewal of Registration;

Rule 9 stipulates maintenance and preservation of records; Rule 10

stipulates conditions for conducting pre-natal diagnostic procedures;

Rule 18 stipulates Code of Conduct to be observed by persons working in

Genetic Centers/ Laboratories/ Clinics Ultrasound Clinics, Imaging

Centers etc; Rule 18-A, prescribes Code of Conduct to be observed by

appropriate authorities; Rule 19 provides remedy of Appeal.

11. With an objective to pay special focus on eradicating this

social evil, the Government of India launched scheme called

"BETI BACHAO, BETI PADHAO". It covers various aspects of girl child.

The special focus of the scheme is on 1994 Act. Government of India

launched nation-wide awareness and advocating campaign and

multi-sectoral action plan. In its endeavour to discipline the authorities

tasked with enforcement of the Act, one of its kind step was taken in the

year 2014 by amending the 1996 Rules and introducing Rule 18-A which

prescribes "CODE OF CONDUCT TO BE OBSERVED BY APPROPRIATE

AUTHRITY". On further review of functioning of the Act and the Rules,

Rule 18-A (4) was amended vide GSR 60 (E) dated 28.1.2015 substituting

clause (ii) of Rule 18-A (4), which is the one in force. The Government of

India has also brought out Standard Operating Guidelines on various

aspects of the 1994 Act. It is a reformation law to root out evil practice

and to bring respect to girl child. Enforcement of stringent provisions of

the Act must act as a deterrent. It commends strict enforcement.

12. At the first blush, the contention of the learned counsel for

petitioner on vitiating the impugned order on the ground of breach of

opportunity of hearing offending the statutory mandate envisaged by

Rule 8(3) of the Rules appears formidable but on deeper consideration of

the whole scheme of the Act and the Rules and statement of objects and

reasons to bring out this Act, the said contention waters down and pales

into insignificance.

13. The primary purpose of bringing this enactment is to

regulate functioning of centers/institutions/hospitals using ultrasound

machines or other modern machines and to prevent sex determination

and giving treatment for IUI for infertile patients without obtaining

permission and license. Act requires registration and maintenance of

record of undertaking pre-natal diagnostic centers and other related

services. Not following the mandatory provisions of the Act can also

result in penal consequences which include suspension, cancellation and

refusal of renewal of the registration. 1996 Rules are made to give effect

to the object, scope and purpose of the Act. After reviewing the

implementation of Act, 1994 and functioning of the authorities

constituted under the Act, Rule 18-A was introduced and has been

further amended. While Rule 18 prescribes Code of Conduct to be

observed by the registered organizations, Rule 18-A prescribes Code of

Conduct to be observed by appropriate authorities. Thus, the registered

units and appropriate authorities are equally mandated to follow the

statutory prescription. Rule 18-A (4) mandates appropriate authority to

observe previous conduct of applicant seeking renewal of registration.

14. Rule 8 of the Rules, 1996 deals with mechanism to grant

renewal of registration already made under Rule 6. Rule 8 (2) requires

holding of enquiry on the application for renewal and to grant renewal if

all the parameters are fulfilled. Rule 8 (3) deals with contingency where

appropriate authority decided not to grant renewal.

It mandates the appropriate authority to give an opportunity of being

heard to the applicant and on considering the submissions and on duly

taking note of the advice of the Advisory Committee, it may pass orders

rejecting the application for renewal. Rule 8 (3) is rooted into the concept

of opportunity of hearing to a person before taking an adverse decision

against him.

15. Rule 18-A (4) mandates the appropriate authority to observe

two aspects while considering the request for registration/renewal of

registration under the Act, i.e., a) to dispose of the renewal/registration

application within a period of 70 days from the date of receipt of

application and b) not to accept application for renewal of registration,

if case is pending in any Court against the applicant for violation of the

provisions of the Act and the Rules made therein.

16. Rule 18 -A (4) gives effect to the primary objective of the

Act, i.e., to root out the evil practice of terminating the pregnancy, if it is

found that foetus is a girl and discourages the centers/hospitals/clinics

in aiding and abetting people indulging in such heinous crime. It seeks

to dissuade persons involving in imaging services from indulging in

activities prohibited by the Act, under the guise of registration.

It prohibits from granting renewal if the center is involved in crime

registered alleging violations of the Act. Having regard to prevalence of

evil practices, no stone be left unturned to prevent abuse of technology

and such persons should not be allowed to subvert the law to earn quick

money. The Act seeks to enforce strict regime on undertaking

determination of sex of foetus, sex selection or to render services on

those aspects. The strict enforcement of mandate of the Act commends

acceptance.

17. Rule 8 (3) and Rule 18-A (4) (ii) deal with two different

contingencies. Both have purpose and object. While Rule 8 (3)

embodies the rule of 'audi alterm partem', Rule 18-A (4) seeks to act as

a restraint against indulging in illegal activities under the guise of

securing registration under the Act. When construing Rule 8 (3),

it is necessary to consider the whole scheme of the Act and the

1996 Rules and it can not be seen in isolation. Having regard to the

scheme and object of the Act, Rule 8 (3) and Rule 18-A (4) have

to co-exist and live in harmony. Though on a plain reading of Rule 8 (3),

it appears, opportunity of hearing before rejecting the application for

renewal of registration is mandatory, its application is circumscribed by

the mandate of Rule 18-A(4). On a conjoint reading, merely on the

ground that opportunity was not afforded to petitioner, order per-se

cannot be said as vitiated, having regard to the fact that petitioner is an

accused and facing trial in a criminal case and pending criminal case is a

clear embargo to grant renewal.

18. To appreciate the issue of opportunity of hearing, it is also

appropriate to consider the chronology of events:

18.1. On 6.10.2017 the District Appropriate Authority

lodged complaint in the Court of the III Additional Chief Metropolitan

Magistrate at Hyderabad under Section 28 of the Act, 1994 read with

Section 200 of Cr.P.C alleging that the two accused, the petitioner and

the Director of the petitioner violated Section 181 of the Act, 1994 and

Rules 9 and 10 of the Rules, 1996. The complainant alleged that on

inspection of the petitioner hospital premises, he noticed that accused

no.2 was not maintaining proper records as required by Rules 9 and 10

and accused no. 2 was found giving treatment for Intrauterine

Insemination (IUI) for infertile patients without obtaining permission and

license from the complainant. Complainant also stated that he seized

Form F, PC & NPDT Register and Ultrasound scan machine. The criminal

Court took cognizance of the crime reported against petitioner and

petitioner is facing trial in CC No. 1542 of 2018.

18.2 According to petitioner, as previous ultrasound

scanning machine has become old and was giving technical problems,

petitioner purchased a new machine and changed the existing machine.

Since the Act requires registration of the new machine, petitioner applied

for registration on 18.3.2021. The said application was not considered

by the appropriate authority compelling the petitioner to institute

W.P. No. 12383 of 2021 praying to declare the inaction of the

respondents in considering the application and grant permission for

change of old ultrasound scanning machine with a new machine on the

ground that C.C. No. 1542 of 2018 is pending. While the said writ

18. Registration of Genetic Counseling Centres, Genetic Laboratories or Genetic Clinics. (1) No per son shall open any Genetic Counseling Centre, Genetic Laboratory or Genetic Clinic, including clinic, laboratory or centre having ultrasound or imaging machine or scanner or any other technology capable of undertaking determination of sex of foetus and sex selection, or render services to any of them, after the commencement of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002 unless such centre, laboratory or clinic is duly registered under the Act. 2. Every application for registration under sub-section (1), shall be made to the Appropriate Authority in such form and in such manner and shall be accompanied by such fees as may be prescribed. 3. Every Genetic Counseling Centre, Genetic Laboratory or Genetic Clinic engaged, either partly or exclusively, in counseling or conducting pre-natal diagnostic techniques for any of the purposes mentioned in section 4, immediately before the commencement of this Act, shall apply for registration within sixty days from the date of such commencement. 4. Subject to the provisions of section 6, every Genetic Counseling Centre, Genetic Laboratory or Genetic Clinic engaged in counseling or conducting pre-natal diagnostic techniques shall cease to conduct any such counseling or technique on the expiry of six months from the date of commencement of this Act unless such Centre, Laboratory or Clinic has applied for registration and is so registered separately or jointly or till such application is disposed of, whichever is earlier. 5. No Genetic Counseling Centre, Genetic Laboratory or Genetic Clinic shall be registered under this Act unless the Appropriate Authority is satisfied that such Centre, Laboratory or Clinic is in a position to provide such facilities, maintain such equipment and standards as may be pre scribed.

petition was pending, on 19.5.2021 petitioners were issued orders

rejecting the application on the ground that C.C.No. 1542 of 2018 is

pending trial. As the said fact was brought to the notice of the Court, the

writ petition was disposed of granting liberty to the petitioner to work out

remedies available in law.

18.3. Petitioner filed W.P.No. 12464 of 2021 challenging the

rejection of the application as illegal and sought for consequential

directions. This Court having noticed that case in C.C. No.1542 of 2018

and Criminal Petition No. 2632 of 2019 is filed and this Court granted

blanked stay on continuation of the criminal proceedings, directed

consideration of the application for change of ultrasound machine

without reference to the rejection letter dated 19.5.2021. In obedience of

the orders of this Court, permission to replace ultrasound scanning

machine was granted valid till 24.8.2021, the day on which earlier

renewal of registration would expire.

18.4. The renewal application was rejected by order dated

3.7.2021. This rejection refers to pending C.C.No. 1542 of 2018 by

relying on Rule 18-A(4) (ii) of the Rules. This order was challenged in

W.P.No. 17634 of 2021. This Court having found merit in the contention

that decision to refuse renewal of registration was made by incompetent

authority, sets aside the order and remanded the matter for

consideration afresh. On said remand, the impugned order is passed.

To complete the narration, it is necessary to notice that challenging the

initiation of criminal proceedings and continuation thereof, petitioner

filed Criminal Petition No. 2632 of 2019 and by order dated 12.6.2019

this Court granted stay of all further proceedings in C.C.No. 1542 of

2018. The Criminal Petition was dismissed by order dated 24.8.2021.

18.5. Petitioner filed Criminal Petition No. 2632 of 2019

under Section 482 of Criminal Procedure Code in this Court challenging

the interlocutory order of the I Additional Metropolitan Sessions Judge at

Hyderabad and also praying to drop proceedings against the petitioners

in C.C. No. 1542 of 2018. C.C. No. 1542 of 2018 is registered on the

charge of violation of provisions of the Act. This Court was not

persuaded to discharge the accused and by judgment dated 24.8.2021

dismissed the Criminal Petition No. 2632 of 2019. From paragraphs 16

and 17 of the judgment, it appears that petitioner was issued notice

dated 24.7.2017 calling for explanation on issues leading to filing

criminal complaint. Petitioner seems to have admitted his lapses.

Be that as it may, this judgment shows that petitioner was aware of

alleged violations of the Act.

18.6. From the above chronology of events, litigation before

this Court and the decisions made by the authorities, it is evident that

consistent stand of the authorities is that petitioner is not entitled to

seek renewal in view of provision in Rule 18-A (4) (ii) since criminal case

is pending against him and same is also reflected in the orders referred

to above. Petitioner is also aware that the renewal is not granted

because of the criminal case registered against him. It is thus apparent

that petitioner is aware of the reason for rejection of his application for

renewal i.e., pending criminal case against him and there was no

surprise element when renewal application was rejected by the order

impugned herein.

19. Renewal is not a matter of course. Registration is

circumscribed by strict compliance of law. There is no extra-terrestrial

right to seek renewal even when applicant is facing prosecution on

offence flowing out of the Act. Thus, though, ordinarily before rejecting

renewal, applicant must be provided opportunity of hearing, if applicant

is involved in crime, not affording opportunity of hearing is not fatal.

I am dealing with post facto situation after a decision was made to test

whether any useful purpose will be served if an opportunity is afforded to

petitioner. In other words, is it possible for the petitioner to persuade the

competent authority to ignore pending criminal case and take a view

different from one that was taken in the impugned decision.

20. Having regard to the statutory mandate and history of

litigation, learned counsel for petitioner was asked to satisfy the Court as

to how prejudice is caused to him and if opportunity of hearing is

afforded to him how he can improve his case and state that in spite of

restriction imposed by Rule 18-A(4) (ii) he can still persuade the

competent authority to take a different view and to grant renewal. No

satisfactory explanation is elicited from the learned counsel for

petitioner.

21. From the statutory scheme, it is apparent that as long as

petitioner is facing trial, on the renewal application only one result is

possible i.e., rejection. Therefore, even assuming that statutory mandate

is violated, remitting the matter on the ground that petitioner was not

afforded opportunity of hearing, is an exercise in futility.

22. Writ remedy is an equitable and discretionary remedy. In a

given circumstances of a case, the writ Court may refuse to grant relief

even when a case is made out on violation of procedural safeguards

where justice and larger public interest require denial of such relief vis-à-

vis grievance of an individual; where no prejudice is caused; where no

useful purpose would be served in remanding the matter for fresh

consideration; where the course adopted by an authority is in accord

with the statutory mandate; where on admitted and indisputable facts,

there is only one conclusion. Even if a legal flaw can be electronically

detected, this Court would not interfere save manifest injustice or unless a

substantial question of public importance is involved [RASHPAL

MALHOTRA v. SATYA RAJPUT MRS2 & COUNCIL OF SCIENTIFIC AND

INDUSTRIAL RESEARCH v. K G S BHATT3'.

23. It is settled principle of law 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

some violation of procedural safeguards. The writ Court need not grant a

futile writ. The queue of precedential decisions is long and crowded.

Suffice to note few watermark decisions.

23.1. In S.L. KAPOOR v. JAGMOHAN4, principal contention was

that the order of supersession of New Delhi Municipal Corporation made

by Lt. Governor was in complete violation of principle of natural justice

and total disregard of fair play. No notice to show cause was issued and

no opportunity was afforded on the allegations made for such

supersession. Supersession resulted in premature termination of tenure

of members of the Municipal Committee. Having said that not affording

opportunity before superseding the Committee was illegal, the Hon'ble

Supreme Court held,

"24. ........ 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. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal."

23.2 In M.C. MEHTA v. UNION Of INDIA5, Bharat Petroleum

Corporation Limited (BPCL) assailed cancellation of retail petroleum

(1987) 4 SCC 391= AIR 1987 SC 2235.

{AIR 1972 SC 1089

{(1980) 4 SCC 379}

{(1999) 6 SCC 237}

outlet on the ground that prior to such cancellation, no notice or

opportunity was afforded to BPCL. Earlier the very same piece of land

was allotted to Hindustan Petroleum Corporation Limited (HPCL). This

allotment was cancelled, and allotment was in turn made to BPCL. By

order dated 10.03.1999, the plot was restored to HPCL withdrawing from

BPCL. Both have contended that principles of natural justice violated

when allotment was cancelled. To the extent relevant the observations of

Hon'ble Supreme Court are as under:

"15. It is true that whenever there is a clear violation of the principles of natural justice, the courts can be approached for a declaration that the order is void or for setting aside the same......

23.3. In STATE BANK OF PATIALA v. S.K. SHARMA6, Supreme

Court examined the issue whether merely because a person is not

afforded reasonable opportunity it would not automatically result in

setting aside the decision of a competent authority unless the person

also satisfies the writ court that grave prejudice was caused and if only

opportunity was afforded he would have satisfied that authority to take a

view in his favour as against him. In this case, Supreme Court

introduced the test of prejudice principle to test the validity of a

contention on denial of reasonable opportunity. Supreme Court

delineated the principles that should govern the issue of denial of

reasonable opportunity. To the extent relevant they read as under:

"33. We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee):

(1) (1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether

(a) the provision violated is of a substantive nature or (b) whether it is procedural in character.

{(1996) 3 SCC 364}

(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.

(3) In the case of violation of a procedural provision, the position is this : procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under

-- "no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.

(4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.

(b) xxxxx


(5)     Where     the    enquiry    is   not   governed    by    any

rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice -- or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action -- the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing" and "no fair hearing".

(a) In the case of former, the order passed would undoubtedly be invalid (one may call it 'void' or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem).

(b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.]

(6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.

(7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision."

23.4. In KALASAGARAM, SECUNDERABAD CULTURAL

ASSOCIATION Vs STATE OF ANDHRA PRADESH7, learned single Judge

of this Court, as he then was, considered the very issue and held as

under:

"10. There is no controversy whatsoever about the nature of the land granted to the petitioner by the respondent-Corporation on lease. The land itself admittedly, does not belong to the Corporation. The land belongs to Government Employees Co-operative Housing Society and forms part of sanctioned layout. In the layout the land in question is admittedly reserved for the purpose of play ground, park etc. May be, under the provisions of the layout Rules and the Hyderabad Municipal Corporation Act, after the reservation of land for parks and play grounds, the lands stood vested in the Municipal Corporation.

14. Even if it is to be assumed that the impugned order suffers from some infirmities, should the Court grant relief to the petitioner and issue writ as prayed for? Whether the petitioner is entitled for any relief from this Court? It is settled law that this Court does not issue writs in exercise of its jurisdiction under Article 226 of the Constitution of India, as a matter of course. The Court exercising jurisdiction under Article 226 of the Constitution of India is also a Court of equity. The relief to be granted in exercise of such power is an equitable one. Mere infraction of a statutory provision would not automatically give rise to a cause for issuing a writ of Mandamus. The Court of equity, when exercising its equitable jurisdiction under Article 226 of the Constitution must so act as to prevent perpetration of a legal fraud and the Courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to defend the law from crafty evasions and now subtleties invented to evade law' (See A.P. STATE FINANCIAL CORPORATION v. GAR RE-ROLLING MILLS, (1994) 2 SCC 647 at 662. Writ of Mandamus is highly discretionary remedy as the aggrieved person has to not only establish the infraction of a statutory provision of law but required to further establish that such infraction has resulted in invasion of a judicially enforceable right. The existence of a right is the foundation of the jurisdiction of Court to issue a writ of Mandamus.

{1998 (1) ALD 595= 1998 (1) ALT 212}

16. Be that as it may, the Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot compel the Government or statutory authorities to act in an illegal manner. The respondent- Municipal Corporation ought not to have granted lease of the said land to the petitioner herein as it is reserved as open space and for a specified purpose, namely, play grounds, perks. The land reserved for such purpose cannot be even allowed to be utilised for any other public purpose. Land reserved for a park and play ground can never be allowed to be converting to be utilised even for any other public purpose (See Bangalore Medical Trust v. S. Muddappa, (1991) 4 SCC 54 : AIR 1991 SC 1902. It is not as if an equal extent of a land was made available in the same layout for the play grounds and parks by allotting the land in question to the petitioner."

23.5. The following principles can be deduced from the treasure trove

of precedents, few of which are referred to above:

(A) In exercise of power of judicial review under Article 226 of the

Constitution of India, it being discretionary and equitable remedy,

Writ Court may decline to grant the relief to a petitioner, in the

given facts of a case, even if legal flaw in the decision of competent

authority is made out.

(B) Even when there are procedural infirmities in taking a decision by

statutory authority affecting the petitioner adversely, Court need

not grant the relief prayed for, if setting aside the decision assailed

would result in restoring another illegal decision.

competent authority, it need not be set aside on that ground and