JUDGMENT : Sarwar Ali, J. The main or the most important question involved in this writ application is whether the ORDER :passed in violation of the principles of natural justice is a nullity. Can such ORDER :be ignored? Can it be treated to be non-existent in the eye of Law? Before I deal with this, and other questions raised on behalf of the petitioner, it is proper to state the facts compactly. 2. The facts which are admitted or which had been established in this case are these :- The petitioner is the owner and occupier of a house on the flank of a lane vested in the Arrah Municipality. There was an encroachment on this lane by the petitioner who constructed a platform. Respondent no. 4 filed an application for the removal of the encroachment made by the petitioner. Sri H.K. Verma Section Officer of the Municipality was deputed to make an inquiry. He found an encroachment on the public lane. He submitted a report, a true copy of which is Annexure-2 to this writ application. In this report he recommended action under Sect ions 193, 196 and 197 of the Bihar and Orissa Municipal Act ("the Act"). The Municipality issued a notice requiring the petitioner to remove the encroachment within seven days from the date of the receipt of the notice. The notice was issued on the 31st August 1967. The petitioner demolished a portion of the platform constructed by her and filed an application before the Municipality stating that the ORDER :of the Municipality has been complied with. Before the filing of this application, the Municipality wrote to the District Magistrate invoking his jurisdiction under Section 198 of the Act, although the heading of the letter written by the Executive Officer, Arrah Municipality to the District Magistrate, Shahabad, in that regard (Annexure 3) seeks for sanction under Section 198 of the Act. The use of the expression 'sanction' does not appear to be very appropriate. The District Magistrate passed ORDER :on this letter (Annexure 3) in exercise of the powers under Section 198 of the Act. The factum of such an ORDER :having been passed was communicated to the Municipality under Annexure 4 dated the 2nd July, 1968. It may be stated that there is a dispute between the parties whether any ORDER :under Section 198 of the Act was at all passed by the District Magistrate. The factum of such an ORDER :having been passed was communicated to the Municipality under Annexure 4 dated the 2nd July, 1968. It may be stated that there is a dispute between the parties whether any ORDER :under Section 198 of the Act was at all passed by the District Magistrate. But I have stated that such an ORDER :was passed by the District Magistrate as in view the materials on the record justify such a conclusion. The relevant discussion on this matter will follow later. It may be stated at this stage that neither the notice to remove the encroachment given by the Municipality to the petitioner nor the ORDER :passed by the District Magistrate in exercise of the powers under Section 198 of the Act were after prior notice to the petitioner. Respondent no. 4 filed two petitions before the District Magistrate requesting him to take steps so that the encroachments made by the petitioner be removed. On receipt of these petitions, the Deputy Collector incharge sought information from the Executive Officer of the Municipality on the question whether the encroachments made by the petitioner had been removed. The Executive Officer replied to the query. The letter of the Executive Officer addressed to the Deputy Collector for Incharge (General Section) is dated the 9th January, 1970, and is Annexure 5 to the writ application. The letter in question does not establish that the encroachment had been removed. What is clear from the letter is that only a part of the encroachment had been removed and the removal of that part solved that problem which the public had to face on account of the encroachment. In fact the report on which reliance has been placed in this case states that the demolition of encroachment has been in part and that since Thelas and rickshaws pass in the lane, there was no necessity of any further removal. On the 25th August, 1970, respondent no. 4 filed another petition before the Executive Officer of the Municipality praying that action may be taken for removal of the encroachment which was still existing. The Executive Officer did not accede to the prayer made regarding removal of the encroachment. He wrote a letter to respondent no. 4 which may be quoted as under :- "No. 1084/21-7 (1). From Sri Fakira Hazra, Executive Officer, Arrah Municipality To Sri Rishab Sundar Das, Advocate Mahajantoli no. The Executive Officer did not accede to the prayer made regarding removal of the encroachment. He wrote a letter to respondent no. 4 which may be quoted as under :- "No. 1084/21-7 (1). From Sri Fakira Hazra, Executive Officer, Arrah Municipality To Sri Rishab Sundar Das, Advocate Mahajantoli no. 1, Arrah Dated 23 March, 1971 Subject:- Demolition of platform and stairs constructed by Smt. Prem Kanta Kumari Jain in public lane in Mohalla Mahajantoli no. 1 Sir, With reference to your letter dated 25.8.70 on the above mentioned subject, I have to say that I have personally visited the place. The encroachment has been partially removed and the then Executive Officer has reported this to the Dy. Collector I/C General Section vide this office letter no. 901/21-7(1) dated 9.1.70 that no further action is necessary. On my inspection I found that there is encroachment by each and every owner of the building and it is no use going ahead with the encroachment. If action should be taken all the encroachment in the lane should be taken up. Yours faithfully, Sd. F. Hazra, Executive Officer, Arrah Municipality, Arrah." Thereafter respondent no. 4 filed a writ application in this Court being CWJC no. 609 of 1971. This writ application was dismissed in limine. The ORDER :dismissing the application does not give any reason for the dismissal thereafter respondent no. 4 approached the District Magistrate inviting him to take action in respect of the removal of the encroachment which was still existing. The District Magistrate passed ORDER :dated the 20th December 1971/10th January, 1972. By this ORDER :he called upon the Executive Officer and Chairman of the Municipality to show cause within fifteen days as to why a proceeding for contempt of court should not be started against them. The Executive Officer or the Chairman of the Municipality has not come up to this Court against this ORDER :(Annexure 10). The petitioner filed an application before the district Magistrate giving rise to Case no. 158 of 1971-72. In this petition it was stated that there was no encroachment and that her pucca platform need not be demolished, particularly in view of the failure of respondent no. 4 to get any relief from the High Court in the writ application filed by him. 158 of 1971-72. In this petition it was stated that there was no encroachment and that her pucca platform need not be demolished, particularly in view of the failure of respondent no. 4 to get any relief from the High Court in the writ application filed by him. By an ORDER :dated the 3rd October, 1972, the District Magistrate held that his ORDER :for removal of the encroachment made by the petitioner on the municipal lane had not been implemented. The application of the petitioner was therefore summarily dismissed, (vide Annexure 11). The petitioner filed an application before the District Magistrate stating that since the proceeding regarding removal of the encroachment was continuing the petitioner should be added as a party thereto. This prayer was also rejected by the District Magistrate by his ORDER :dated the 30th October, 1972 (Annexure 13). On these facts the petitioner has made a prayer that the ORDER :s contained in Annexures 10, 11 and 13 be quashed. 3. In this case although the Executive Officer of Municipality is a party, no show cause has been filed on his behalf. The only show cause, by way of counter-affidavit, is of respondent no. 4. It is not necessary to state in detail the statements made in the show cause because the summary of facts given in the previous paragraphs incorporates the relevant facts along with my conclusions on controversial aspects. 4. Learned counsel for the petitioner, Mr. Rewati Raman Saran, raised four contentions before this Court. He contended (1) that the defect of the dismissal of the writ application filed by respondent no. 4 in this Court, being C.W.J.C. no. 4. Learned counsel for the petitioner, Mr. Rewati Raman Saran, raised four contentions before this Court. He contended (1) that the defect of the dismissal of the writ application filed by respondent no. 4 in this Court, being C.W.J.C. no. 609 of 1971, was that the matter of removal of the encroachment could not be reopened and that the dismissal of the writ application operated as res judicata, (2) that the District Magistrate had not passed any ORDER :under Section 198 of the Act and as such the question of applicability of Section 201 of the Act did not arise, (3) that the application of the petitioner for being added as a party to the proceeding relating to the removal of the encroachment should have been allowed and as such the ORDER :of the District Magistrate (Annexure 13) was fit to be quashed, and (4) that neither the ORDER :for removal of the encroachment passed by the Municipality nor the alleged ORDER :of the District Magistrate under section 198 of the Act was passed after prior notice to the petitioner. This was clearly in violation of the principles of natural justice, and as such the ORDER :was a nullity and had no existence in the eye of law. It was, therefore, not competent for the District Magistrate to take any action under Section 201 of the Act. 5. The first three points raised by learned counsel for the petitioner may be dealt with briefly as in my view none of these points required any elaborate discussion. I have already stated that respondent no. 4 moved the Executive Officer of the Municipality asking him to take steps for the removal of the encroachment. The Executive Officer refereed to do so for the reasons stated in Annexure 7. The respondent challenged this ORDER :in C.W.J.C. no. 609 of 1971. The writ application was placed for admission on the 14th May, 1971, when the application was adjourned after the Habas Counsel for respondent no. 4 was heard for sometime, in ORDER :to enable Mr. Shree Nath Singh who was appearing on behalf of the State to obtain certain clarifications from the administration. Thereafter the case was again listed for admission on 21.5.1971, when it was adjourned to the 28th June, 1971, and on that date the ORDER :passed by the Bench hearing the application is "The writ application is dismissed". Shree Nath Singh who was appearing on behalf of the State to obtain certain clarifications from the administration. Thereafter the case was again listed for admission on 21.5.1971, when it was adjourned to the 28th June, 1971, and on that date the ORDER :passed by the Bench hearing the application is "The writ application is dismissed". Learned counsel for the petitioner contended that the effect of the ORDER :of dismissal, coupled with the earlier ORDER :when the case was adjourned for obtaining instructions whether there was any illegal encroachment in the lane in question, is that the question of removal of the encroachment is a closed chapter. The matter cannot be re-agitated al to whether the encroachment is still capable of removal. It is not possible to accept this contention. The ORDER :of the Bench dismissing the application does not give any reason. We do not know what weighed with the Court in passing the ORDER :of dismissal; whether it was on the ground of writ jurisdiction not being an appropriate remedy or whether it was on some other ground, is not clear from the ORDER :. The ORDER :does not amount to adjudication of the question involved in the writ application. In such a situation, mere exparte dismissed of the writ application cannot be said to amount to a decision on the question whether the encroachment, if any, could be ORDER :ed to be removed in a competent proceeding. 6. The next contention is that no ORDER :was passed by the District Magistrate under section 198 of the Act. In this connection learned counsel for the petitioner brought to our notice the statements made in paraglaph-8 of the writ application where it is stated that the learned District Magistrate committed error of record in stating that be had already passed an ORDER :on the 5th September 1968, for removal of the encroachment. Learned counsel contended that, in fact, no ORDER :under section 198 of the Act was passed at all. It is not possible to accept this contention. The letter of the Deputy Collector in charge in response to the letter of the Executive Officer (Annexures 4 and 3 respectively) shows that an ORDER :had been passed by the District Magistrate. Annexure 3 states that notice under Sections 193, 196 and 197 had been served on the petitioner, but she did not comply with the notice. The letter of the Deputy Collector in charge in response to the letter of the Executive Officer (Annexures 4 and 3 respectively) shows that an ORDER :had been passed by the District Magistrate. Annexure 3 states that notice under Sections 193, 196 and 197 had been served on the petitioner, but she did not comply with the notice. Hence the necessity of your honour's ORDER :under Section 198 Bihar & Orissa Municipal Act (Section 198 is quoted in extenso below)'. The letter quotes the Section in full. It was on the basis of this letter that the District Magistrate, passed ORDER :s. The ORDER :of the District Magistrate, therefore, must be held to be an ORDER :under Section 198 of the Act. Annexure 4 states that “Jiladhikari Shahabad ne anumati Pradar, kar di hai”. This has to be read along with Annexure 11 which specifically states that "Sarva Pratham samaharta ka adesh 1968 me hua". On the materials on the record, therefore, I am satisfied that an ORDER :under Section 198 of the Act was in fact, passed by the District Magistrate and the contention raised en behalf of the petitioner, that no such ORDER :was passed, cannot be accepted. 7. So far as the third contention raised on behalf of the petitioner is concerned, this too is without any substance. Strictly speaking there is no proceeding pending before the District Magistrate for the purposed of enforcing any ORDER :passed by him. Section 201 of the Act states that the effect of an ORDER :passed under Section 198 of the Act is that the said ORDER :passed by the Magistrate will be deemed to be in the discharge of judicial duties and the Commissioners will be bound to execute such ORDER :. When a question arises whether the Commissioners, who were bound to execute the ORDER :, have executed the same or not, and when a notice is issued on the Executive Officer or the Chairman as to why they should not be held guilty of contempt, the petitioner cannot be said to be a necessary party to the contempt proceeding. The refusal of the prayer of the petitioner to be added as a party in the pending proceedings cannot, therefore, be said to be an ORDER :which if fit to be quashed in exercise of the powers under Articles 226 and 227 of the Constitution of India. 8. The refusal of the prayer of the petitioner to be added as a party in the pending proceedings cannot, therefore, be said to be an ORDER :which if fit to be quashed in exercise of the powers under Articles 226 and 227 of the Constitution of India. 8. I now deal with the important question of law raised and involved in this application, namely, whether an ORDER :in violation of the principles of natural justice is a nullity. I do so with certain amount of diffidence, as I find conflict of view on this question in the opinions expressed in the House of Lords. I also find that the view expressed in the Privy Council is divergent with the view expressed by some of Law Lords in the House of Lords. I shall refer to those opinions later. 9. No decision of the Supreme Court has been brought to our notice dealing specifically with the question involved in this case. It is a problem about which Professor S.A. de Smith, in his standard book' "Judicial Review of Administrative Action", has said that neither view is demonstratively right or wrong. But before I give my own conclusions I must deal with certain provisions of the Act in ORDER :to appreciate whether the proceedings in question were quasi-judicial in nature or were in the nature of the administrative proceedings. 10. Section 196 (1) of the Act is as follows :- (1) The Commissioners, may, subject to the provisions of Sections 179 and 180, issue a notice requiring any person to remove any building which he may have built, or any wall, fence, rail, post or other obstruction or encroachment which he may have erected, in or on any house-gully, public drain, aqueduct, water course or ghat or any property vested in the Commissioners," Sections 197 and 198 of the Act may also be quoted. They are as follows: "197. Notice to remove projections on house encroaching on roads, house gullies and property of the Commissioners. They are as follows: "197. Notice to remove projections on house encroaching on roads, house gullies and property of the Commissioners. The Commissioners may, subject to the provisions of Section 180, issue notice requiring the owner or occupier of any house to remove or alter any projection, obstruction or encroachment erected or placed against or in front of such house, if the same overhangs the road or just into or in any way projects or encroaching upon or is an obstruction to the safe and convenient passage along, any house-gully, or obstructs, or projects, or encroaches into or upon any public drain, aqueduct in any road, or into or upon any public water course or ghat or any property vested in the Commissioners". "198. Power of Commissioners to remove, if notice not complied with. If the person on whom a notice has been issued under Section 196 or Section 197 fails to comply with the requisition within eight days of the receipt of the same, or if where a notice has been posted up under Sub-section (2) of Section 196, the building, wall, fence, rail, post or other objection or encroachment is not removed within eight days of the posting up of the notice, the Magistrate may on the application of the Commissioners, ORDER :that the obstruction, encroachment or projection be removed, or that the projection be altered and thereupon the Commissioners may, notwithstanding any thing contained in Sections 359 and 363, remove such obstruction, encroachment, or projection or alter such projection." A persual of Sections 196 (1) and 197 of the Act shows that there is no specific provision requiring prior service of notice on the person who is alleged to have made an encroachment before a direction is issued requiring removal of encroachment. Nevertheless the mere fact that there is no specific provision regarding service of notice will not take the action taken under these Sections, away from the category of quasi-judicial. The position in this regard has been properly summed up in the Shorter Constitution of India by D.D. Basu, where it is stated that in Borne cases the Courts have implied a duty to inquire or offer an opportunity to a person, according to the subject matter or nature of the powers involved or the nature of the rights acquired even though the statute is silent about it. “The test of quasi judicial function in all such cases is that the determination has to be made by the application of the objective standard to the facts even in the light of the existing legal rights as distinguished from the subjective consideration”. The consequences of the ORDER :framed may be removal of the platform, buildings, or even substantial structures. The determination by the Municipality has to be on objective standard. Therefore there cannot be any doubt that the powers under Sections 196 and 197 are quasi-judicial powers and before passing an ORDER :directing removal of encroachment, there is an implied duty to give notice to the parties who will be affected by the ORDER :. We find that there is also a provision for appeal against an ORDER :passed under Sections 196(1) and 197 of the Act. It is true that mere fact that there is a provision of appeal does not mean that the initial ORDER :must be a quasi judicial ORDER :. Appeals are provided against administrative ORDER :s also and it has been held that the appellate power in these circumstances is quasi judicial. But what is to be noticed in this case is that in an appeal against an ORDER :passed under section 196(1) or under section 197 of the Act, the likely questions that have to be considered and decided by the appellate authority are (i) whether there is encroachment and (2) whether the land on which encroachment is alleged, is a property in respect of which the Commissioners continued to have tide. These two questions cannot be properly investigated and deter mind by the appellate authority, if there is no opportunity afforded to an aggrieved party to appear before the Municipality and to produce evidence and materials in support of its contention. In some cases it may even be necessary for a party to adduce oral evidence. Taking all these into consideration the prevision of the appellate power in the circumstances, is also indicative of the fact that the power given to the Municipality directing removal of encroachment is a quasi-judicial power. Similar is the position in respect of the power exercised by the Magistrate under Section 198 of the Act. The Section authorises the Magistrate, on the application of the Commissioners, to ORDER :the removal of encroachment etc. Similar is the position in respect of the power exercised by the Magistrate under Section 198 of the Act. The Section authorises the Magistrate, on the application of the Commissioners, to ORDER :the removal of encroachment etc. The question that has to be decided by the Magistrate before he passes the ORDER :is whether the encroachment is still continuing in spite of the earlier ORDER :passed by the Municipality to remove the encroachment. This can appropriately be determined only after the person who was directed to remove the encroachment has a say in the matter. 11. Even if the powers under the aforesaid provisions be administrative and not quasi judicial, the position will not be materially different. It is well established that even in administrative matter, there is a duty to act fairly, and that fairness depends on the task in hand. In the instant case, I am of the view that taking the totality of the circumstances into consideration, nature of the right involved and the jeopardy to a person who is alleged to have made encroachment, it cannot but be said that any ORDER :, even if administrative, has to be passed after giving a fair opportunity to the person concerned to first have a say in the matter. This is what fairness requires. I am, therefore, of the view that before passing ORDER :s under Section 196 (1) the Municipality and under Section 198 the Magistrate had to give notice to the person who is alleged to have made encroachment and who is alleged to have made encroachment and who is alleged to have been continuing with the encroachment. It is the admitted position in this case that no notice under Sections 196(1) and 197 or under Section 198 was served on the petitioner. It is, therefore, necessary to decide the question as to what is the effect thereof as the ORDER :passed without such notice would be clearly in violation of the principles of natural justice. 12. The question whether an ORDER :passed in violation of principles of natural justice, renders the ORDER :passed, a nullity has, as already mentioned, been considered both by the House of Lords and the Privy Council. 12. The question whether an ORDER :passed in violation of principles of natural justice, renders the ORDER :passed, a nullity has, as already mentioned, been considered both by the House of Lords and the Privy Council. In (1) Ridge V. Baldwin two of the Law Lords, namely, Lord Reid and Lord Hodson were clearly of the view that an ORDER :in violation of the principles of natural justice was a nullity [(1963) 2 All E.R. 56 at pages 81 and 116]. Lord Evershed and Lord Devlin were of the contrary view (pages 87-89 and page 120). So far as Lord Morris is concerned, there seems to be a controversy as to whether he held such an ORDER :to be a nullity. Speight J. in (2) Denton V. Auchland City (1969 N.Z.L.R. 256 at 268) was of the opinion that Lord Morriss fell in line with the views of Lord Reid and Hudson. Magany J., in (3) Hounslow V. Twickenham Garden [(1970) 3 All. E.R. 325 (347)] was of the same view, and has, therefore, concluded that the majority view in (1) Ridge V. Baldwin was that an ORDER :in violation of the principles of natural justice is a nullity. The judicial Committee in (4) Durayappah V. Fernando [1967 Appeal Cases 337 (354)] interpreted the decision of Lord Morris differently. It is, however, not necessary for me to decide as to whether the majority of the Lords deciding the case of (1) Ridge V. Baldwin did come to the conclusion that such an ORDER :was a nullity. In (4) Durayappah, V. Fernando the Judicial Committee consisting of Viscount Dilhorne, Lord Guest, Lord Devlin, Lord Upjohn and Lord Pearson, took a view which was contrary to the view taken by Lord Reid and Lord Hodson in the cage of (1) Ridge V. Baldwin. In (5) Anisminic Ltd. V. Foreign Compensation Commission and others [(1969) 2 Appeal Case 147], there are observations of Lord Reid, Lord Pearce and Lord Wilberforce, to the effect that such an ORDER :would be a nullity (at Pages 171, 195 and 207) Lord Morris did not express any categorical opinion on the question in that case nor did be clarify his views as expressed in the case of (1) Ridge V. Baldwin. Lord Pearson who gave a concurring JUDGMENT : in Anisminic case did not express any opinion on this question. Lord Pearson who gave a concurring JUDGMENT : in Anisminic case did not express any opinion on this question. It may, however, be noted that he was a party to the decision in the case of Durayappah. 13. Before dealing with the question further, it might be indicated that the main basis of Lard Reid's observation in (1) Ridge V. Baldwin is his interpretation of the decision in (6) Wood V. Wood [(1874), L.R. 9. Exch. 190]. It would be interesting to note that on a detailed analysis of the decision, Laid Evershed has come to the conclusion that the case of (6) Wood V. Wood, does not establish the proposition that a decision in violation of the principles of natural justice would be a nullity (see discussion at Pages 86 and 87). In coming to a conclusion contrary to Lord Reid, Lord Evershed has posed certain question and discussed the problem with reference to certain instances, reference to which will be made later. Posing and deciding the question under consideration, the Judicial Committee in (4) Durayappah's case, as already noticed, has come to a conclusion that the violation of the principles of natural justice does not make an ORDER :a nullity. It would be useful to quote the decision at page 353 which reads thus:- "Lord Reid reached the conclusion that the committee's decision was void and not merely voidable and he relied on the decision in (6) Wood V. Wood. Their Lordships deprecate the use of the word void in distinction to the word voidable in the field of law with which their Lordships are concerned because, as Lord-Evershed pointed out in (1) Ridge V. Baldwin, quoting from Sir Frede rick Pollock, the words void and voidable are imprecise and apt to mislead. These words have well-understood meanings when dealing with questions of proprietary or contractual rights. These words have well-understood meanings when dealing with questions of proprietary or contractual rights. It is better, in the field where the subject matter of the discussion is whether some ORDER :which has been made or whether some step in some litigation or quasi litigation is effective or not, to employ the verbal distinction between whether it is truly a "nullity" that is to all ins tents and purposes, of which any person having a legitimate interest in the matter can take advantage or whether it is "viodable" only at the instance of the party affected." On the other hand the word "nullity" would be quite inappropriate in questions of proprietary or contractual rights; such transactions may frequently be void but the result can seldom be described as a nullity. In the field now under consideration there are many cases illustrating the difference, see for example (7) Macfoy V. United Africa Company Ltd. where it was held that a failure to comply with certain rules of the Supreme Court rendered the proceedings voidable and not a nullity. On the other side, is the very recent decision of their Lordships' Board in (8) C. Devan Nair V. Yong Kuan Teik where a failure to comply with a rule was held to make purported subsequent proceedings a nullity. Their Lordships understand Lord Reid to have used the word "void" in the sense of bring a nullity. In (1) Ridge V. Baldwin, Lord Hodson took the view that the decision of the watch committee was a nullity. On the other hand Lord Evershed though he differed on the main question as to whether the principle audi alteram partem applied, devoted a considerable part of his JUDGMENT : to the question whether the decision was voidable or a nullity and with part of his JUDGMENT : Lord Devlin expressly stated his agreement. Lord Evershed examined the case of (6) Wood V. Wood in some detail and he reached the conclusion that in (6) Wood V. Wood, the question whether the purported exclusion from the association by the committee was void of voidable was not essential or indeed material to the claim made in the action by the plaintiffs for damages against the members of the committee. He continued, speaking of that case. He continued, speaking of that case. "Certainly in my JUDGMENT : it cannot be asserted that the JUDGMENT :s in the case cited or indeed any of them support or involve the proposition that where a body such as the watch committee in the present case, is invested by the express terms of a statute with a power of expulsion of any member of the, police force and purports in good faith to exercise such power, a failure on their part to observe the principle of natural justice, audit alteram partem, has the result that the decision is not merely voidable by the court but it wholly void and a nullity." Lord Morris of Borth-y-Gest also considered this question and reached the conclusion that the ORDER :of the watch committee was viodable and not a nullity. He examined the question as to the nature of the relief that the party aggrieved (Ridge) would apply for, which would be that the decision was invalid and of no effect and null and void. Their Lordships entirely agree with that and with the conclusions which he drew from it, namely, that if the decision is challenged by the person aggrieved on the grounds that the principle has not been obeyed, he is entitled to claim that as against him it is void ab initio and has never been of any effect. Bat it cannot possibly be right in the type of case which their Lordships are considering to suppose that if challenged successfully by the person entitled to avoid the ORDER :yet nevertheless it has some limited effect even against him until set aside by a court of competent jurisdiction. While in this case their Lordships have no doubt that in an action by the council the court should have held that the ORDER :was void ab initio and never had any effect, that is quite a different matter from saving that the ORDER :was a nullity of which advantage could be taken by any other person having a legitimate interest in the matter." 14. After having dealt with the discussion of the problem as tackled by the House of Lords and the Privy Council, I may reiterate that no decision has been brought to our notice of the Supreme Court or even this Court which specifically deals with the question under consideration. After having dealt with the discussion of the problem as tackled by the House of Lords and the Privy Council, I may reiterate that no decision has been brought to our notice of the Supreme Court or even this Court which specifically deals with the question under consideration. I, therefore, proceed to consider the matter without being bound by any decision either of this Court or of the Supreme Court. 15. It would be appropriate first to notice some of the circumstances in which' rules of natural justice have been held to have been violated, and then to examine the consequences, if such violations are held to result in making the ORDER :a nullity. 16. There cannot be any exhaustive formulation of the circumstances which would amount to the violation of the principles of natural justice. Two principles, however, are firmly established. They are expressed in Latin expressions "audi alteram partem" and "Nemo judex in causa sua". So far as the first category is concerned, it has been said that no one should be condemned unheard. That is the basic requirement of the first rule. The requirement of natural justice in that context requires that before an adverse ORDER :is passed against any person, be should have a prior notice of the action proposed to be taken against him. It is also well established that in the conduct of the inquiry he should have an opportunity of being beard, of knowing the case he has to meet, of answering it and of putting his own case. Consequences of violation in either of these two cases must be the same. 17. So far as the cases relating to opportunity of being heard are concerned, we find that there are a number of decisions of the Supreme Court itself where it has been held that the requirement of giving opportunity to be heard has not been fulfilled, thus violating the principles of natural justice. Some instances of such a violation may be given. They include opportunity of adducing all relevant evidence on which a person relies, opportunity of cross-examining witnesses of the other side opportunity to exam me witnesses in support of his case and production of documents which are necessary for the effective exercise of the aforesaid rights and which should not be withheld from such a person. They include opportunity of adducing all relevant evidence on which a person relies, opportunity of cross-examining witnesses of the other side opportunity to exam me witnesses in support of his case and production of documents which are necessary for the effective exercise of the aforesaid rights and which should not be withheld from such a person. Thus in some circumstances, non-availability of inquiry report which has been used by the Tribunal before coming to its conclusion has been held to amount to violation of the principles of natural justice. Even refusal of adjournment in certain circumstances has been held to amount to such a violation (9) [Rose V. Humbhas (1970) 1 W.L.R. 1061]. Similarly ambiguities in charges have been held to have the consequence (10) [Sloan V. General Medical Council (1970)1 Weekly Law Reports 1130 P.C.] 18. It would be pertinent here to appreciate as to what constituted nullity and what is the effect thereof. ORDER :s that are nullity are completely without jurisdiction. They do not exist in the eye of law. They can be disregarded with impunity or collaterally impeached. It is not only a person who is affected by the ORDER :, but also a person who has a legitimate interest in the matter who can say that the ORDER :has to be completely ignored. 19. It thus logically follows that all the above noted circumstances, and many others, will bring such an infirmity in a proceeding as to make the ORDER :palled therein non-existent in law. It need not be specifically challenged. It is capable of collateral challenge. Not only the affected party but anyone having a legitimate interest in the matter can ignore it wake a simple illustration. An officer in the State service, having some statutory duty to perform, is dismissed after an enquiry which suffers from anyone of the infirmities noticed earlier. He does nothing thereafter. Ten years after the dismissal, he brings a suit for recovery of arrears of salary. The suit must be decreed for the period not barred by limitation, as the ORDER :of dismissal has no existence in the eye of law. Near about the same time a citizen who has a legitimate interest in the discharge of the statutory duty, seeks legal redress to compel the dismissed officer to perform his statutory duty. Since the ORDER :is a nullity the citizen is entitled to his remedy. Near about the same time a citizen who has a legitimate interest in the discharge of the statutory duty, seeks legal redress to compel the dismissed officer to perform his statutory duty. Since the ORDER :is a nullity the citizen is entitled to his remedy. This will indeed lead to starting consequences-none of them would either be conducive to justice or be in the larger interest of the community. I am not prepared to so interpret and declare the law as will lead to such consequences, unless compelled by a binding authority. And none has been brought to our notice. 20. If I understand the opinions of Lord Evershed correctly similar consideration weighed with him in differing with the views of the other two Law Lords. The question that was posed by Lord Evershed [at page 89 in the case of (1) Ridge V. Baldwin] was:- "Finally, I venture to pose to your Lordships the question, what would have been the situation had the Secretary of State allowed the appellants appeal and held that he should be reinstated as chief constable? Would it have been open to the corporation to refuse to give effect to such decision on the ground that the proceedings or the decision before or by the watch committee had been a nullity?" The impossible position flowing from treating the ORDER :aforesaid as nullity was emphasised by the Judicial Committee in (4) Durayappah's case at page 352- “....To take a simple example to which their Lordships will have to advert in some detail presently, if in (1) Ridge V. Baldwin, the appellant Ridge who had been wrongly dismissed because he was not given the opportunity of presenting his defence, had preferred to abandon the point and accept the view that he had been properly dismissed their Lordships can see no reason why any other person, such, for example, as a ratepayer of Brighton should have any right to contend that Mr. Ridge was still the Chief Constable of Brighton....." 21. I may also notice the other illustrations given by Lord Evershed. He said- "My Lords, I do not wish unduly to prolong this opinion but on this highly important matter it seems to me that useful analogy may be found in the practice of the criminal courts. Ridge was still the Chief Constable of Brighton....." 21. I may also notice the other illustrations given by Lord Evershed. He said- "My Lords, I do not wish unduly to prolong this opinion but on this highly important matter it seems to me that useful analogy may be found in the practice of the criminal courts. Thus, the Court of Criminal Appeal in the exercise of its powers under the Criminal Appeal Act, 1907, may quash a conviction and substitute a verdict of acquittal, and may do so where there has at the trial been what is regarded in effect as a failure to observe the principles of natural justice, e.g. where the jury was allowed after retirement under the bailiff's control to depart from the court for luncheon. In these cases it is essential that there should have been an effective trial at least upto the point where the departure from the principles of natural justice occurred; for otherwise the appeal court could not have ORDER :ed the prisoner's acquittal. If in truth the prisoner had never been really tried at all, he would be liable to be tried again for the same offence and the appeal court could have issued a venire de novo. The second of the examples above given (i.e. where the jury had been allowed to leave the court for luncheon) was involved in the case before the Court of Criminal Appeal of R.V.V. Neal and the point with which I am concerned was in terms dealt with by Lord Goddar, C.J." [(1949) 2 All. E.R. at p. 441]. 22. I have already mentioned that rules contained in the two Roman Maxims, as noted above, are the two well established principles of natural justice. In the words of Lord Denning in (11) B. Srinder Singh Kanda V. Government of the Federation of Malaya (1962 Appeal Cases 322 at page 337) :- "....Those two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it. The Romans put them in the two maxims. Nemo judex in causa sua : and Audi alteram partem. This have recently been put in the two words, Impartiality and Fairness...." Let us consider what is the position with respect to the violation of the one of the twin pillars as mentioned by Lord Denning, namely where there is bias or likelihood of bias. Nemo judex in causa sua : and Audi alteram partem. This have recently been put in the two words, Impartiality and Fairness...." Let us consider what is the position with respect to the violation of the one of the twin pillars as mentioned by Lord Denning, namely where there is bias or likelihood of bias. In the well known case of (12) William Dimes V. The Proprietors of the Grand Junction Canel Company (1852) III H.L.C. 759-10 English Reports page 301) it was observed at pages 785-786 as follows :- "If this had been a proceeding in an inferior court, one to which a prohibition might go from a court in Westminster Hall, such a prohibition would be granted pending the proceedings, upon an allegation that the presiding Judge of the court was interested in the suit whether a prohibition could go to the Court of Chancery, it is unnecessary to consider. If no prohibition should be applied for, and in cases where it could not be granted, the proper mode of taking the objection to the interest of the Judge would be, in courts of common law, by bringing a writ of error, for error in fact, and assigning that interest as cause of error. The former course was stated to be proper in the case of Brooks V. Earl of Rivers (Hardr. 503), it being suggested that the Earl of Derby, who was Chamberlain of Chester, had an interest in the suit; and the Court held that, where the Judge had an interest, neither he nor his deputy can determine a cause or sit in court; and if be does a prohibition lies. The latter course was adopted in the case of the Company of Mercers and Ironmongers of Chester V. Bowker (1 Stra. 639), where it was assigned for error in fact, on the record of a JUDGMENT : for the Company of Mercers in the Mayor's Court at Chester, that after verdict, and before JUDGMENT :, one of the Company of Mercers became mayor; and for that reason the JUDGMENT : was reversed in the Court of Quarter Sessions, and that JUDGMENT : of reversal affirmed in the King's Bench. In neither of these cases was the JUDGMENT : held to be absolutely void. In neither of these cases was the JUDGMENT : held to be absolutely void. Till prohibition had been granted in one case, or JUDGMENT : reversed in the other, we think that the proceedings were valid, and the persons acting under authority of the Court would not be liable to be treated as trespassers." Again, in (13) Wildes V. Russell [(l866) L.R. 1 C.P. 722] the question was considered and it was held that although there may be violation of principles of natural justice, yet unless a JUDGMENT : is reversed by the competent tribunal it can be assumed to be valid. It is thus clear that it is established by high authority that violation of the rule relating to "impartiality" is not a nullity. I do not see why a violation of the principle relating to "fairness" should have different result or consequence. If the violation of one of the pillars of principles of natural justice ("Impartiality") does not render a decision a nullity, I do not find enough justification for holding that the violation of the other pillar ("Fairness") will have a contrary effect/result. 23. I now examine the question from the point of view of waiver. If an ORDER :is nullity, concept of waiver or acquiescence should have no part to play. Just as jurisdiction does not originate in the consent of the parties, it cannot be reestablished, where it is absent, by consent or acquiescence. If an ORDER :is a nullity and non-existent in the eye of law, it cannot get a legal recognition because of waiver or acquiescence. Dealing with the position so far as American Courts are concerned, it has been stated :- "Failure to object to alleged bias until after an adverse decision has been made may be held to be a waiver and bar the reviewing Court from considering the question. And failure to object until a decision is imminent may likewise bar the objection" (See Administrative Law Treeatise by K.C. Davies, Vol. 2 P. 168). Similar is the position in England. (See Commentary on the Constitution of India by Durga Das Basu, Fifth Edition at P. 682). The principle has been accepted in India as well. Gajendra Gadkar, J., speaking for the Court observed in (14) Manak Lal V. Dr. 2 P. 168). Similar is the position in England. (See Commentary on the Constitution of India by Durga Das Basu, Fifth Edition at P. 682). The principle has been accepted in India as well. Gajendra Gadkar, J., speaking for the Court observed in (14) Manak Lal V. Dr. Prem Chand (A.I.R. 1957 S.C. 425 at 431) :- "The alleged bias in a member of the tribunal does not render the proceeding invalid if it is shown that the objection against the presence of the member in question bad not been taken by the party even though the party knew about the circumstances giving rise to the allegation about the alleged bias and was aware of his right to challenge the presence of the member in the tribunal." Similarly Bose, J. observed in (15) State of U.P. V. Mohammad Nooh (A.I.R. 1958 S.C. 86 at 97) :- "Some question arose about the waiver. If the respondent, knowing his rights had acquisced in the continuance of the trial despite this defect, then, of course', he would not have been allowed to complain at a later stage." It would thus appear that violation of one of the essential principles of natural justice does not stand in the way of either waiver or acquiescence. As already pointed cut, if the ORDER :is a nullity, neither waiver nor acquiescence could be judicially recognised. 24. Lastly, I examine the question from the point of view of exercise of discretion. It appears to me that it will be difficult to say that although the ORDER :is a nullity completely without jurisdiction or non-existent in the eye of law, yet such an ORDER :will not be interfered with in the exercise of discretionary jurisdiction because no injustice has been done. (I am not considering here those special circumstances which deprive a party to relief in exercise of writ jurisdiction like suppression of material facts etc.). The refusal to exercise discretion in those circumstances would virtually amount to conferring jurisdiction on persons and tribunals when they have none. I am, therefore, of the view that where an ORDER :is a nullity, discretion cannot be refused to be exercised on the ground that there is no injustice to a party, when he has brought to the notice of the Court such facts or materials as led to irresistable conclusion that the ORDER :under challenge is a nullity. I am, therefore, of the view that where an ORDER :is a nullity, discretion cannot be refused to be exercised on the ground that there is no injustice to a party, when he has brought to the notice of the Court such facts or materials as led to irresistable conclusion that the ORDER :under challenge is a nullity. But we find that although there has been violation of principles of natural justice, Courts have refused to exercise their discretion in favour of a party on the ground that no injustice has been done. I may refer in this connection to the observation of Lord Devlin in 1965 Appeal Cases 201 where he said :- “But a principle of judicial inquiry whether fundamental or not, is not a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed; either it would become the master instead of the servant of justice.......” I may also refer to (16) Glynn V. Keele University 1971-1 W.L.R. 487 where in spite of violation of principles of natural justice injunction, being a discretionary remedy, was refused. Dealing with the question it was observed by Pennycuick V.C. that the same principles will apply in a claim for injunction as in a claim for certiorari [per Singleton L.J. in (17) Exparte Fry (l954) 1 W.L.R. 730]. Reliance was also, therefore, placed on the observations made by Lord Parker C.J. in Queen's Bench Divisional Court in Reg V. Oxford University, Exparte Bolchover. Thus it is clear that whether it be proceeding for certiorari or a proceeding for injunction Courts have refused to interfere in spite of violation of principles of natural justice when no teal injustice has been done to an aggrieved party. The refusal to exercise discretion in these cases is more in consonance with the view that the ORDER :s complained of are not nullity. 25. I am, therefore, of the view that an ORDER :passed in violation of the principles of natural justice is not a nullity. The refusal to exercise discretion in these cases is more in consonance with the view that the ORDER :s complained of are not nullity. 25. I am, therefore, of the view that an ORDER :passed in violation of the principles of natural justice is not a nullity. It may, however, be made clear, as was made clear in Durayappah's case, that once an ORDER :is properly challenged and set aside on the ground that the principles of natural justice have not been observed, an aggrieved party is entitled to claim that as against him it is void ab initio and has never been of any effect. But this is something different and distinct from the concept of nullity, as I have already explained. 26. Now coming back to the facts of the case, and examining the question from the point of view that the aforesaid ORDER :s were only voidable, it would appear that the ORDER :of the Municipality was made in the year 1967. The petitioner did not challenge that ORDER :. In fact the ORDER :could not be challenged because there was no ground on which it could be challenged nor any ground has been suggested either in the petition or in course of argument. It is accepted in paragraph 6 of the petition that the petitioner had notice of the ORDER :dated the 31st August, 1967. In paragraph 7, the petitioner says that she had removed a portion of the structure. It will be seen later as to what was the extent of the removal. 27. So far as the ORDER :of the Magistrate under Section 198 is concerned, it is clear, that the petitioner was aware of this ORDER :at least as early as the 30th April, 1969, vide Annexure-1 to the counter-affidavit filed on behalf of respondent no. 4. This is a document on behalf of the petitioner and others addressed to the Chairman of Arrah Municipality where it is stated that "....Kuchh logo ne ek darkhast Collector Saheb ke pas dia tha. Jisme tutne ka shayad ORDER :hua the...." This, in my opinion, indicates that the petitioner was aware of the ORDER :of the Magistrate passed under section 198 of the Act. Being a ware of the two ORDER :s soon after they were passed, the petitioner did not choose to challenge any of them. Jisme tutne ka shayad ORDER :hua the...." This, in my opinion, indicates that the petitioner was aware of the ORDER :of the Magistrate passed under section 198 of the Act. Being a ware of the two ORDER :s soon after they were passed, the petitioner did not choose to challenge any of them. Even in this writ application, it has not been stated that if the petitioner had been served with a notice before the ORDER :s were passed either by the Municipality or the District Magistrate, she would have been able to show that she had some defence. It appears from the materials, on the record that the encroachment on the municipal lane is almost accepted. It is also accepted that only a part of the encroachment has been removed. Annexure-5 to the writ application, on which the petitioner relies states that part of the platform has been, demolished which had been causing inconvenience to Muhalla people. The demolition was, as this document shows, only to the extent of 2½ (two and half feet) in length out of about 31. The report of the Executive Officer, does not in any way suggest that lest of the portion which has not been demolished is not an encroachment. It asserts that since the inconvenience of the public has been removed, it is not necessary to remove the encroachment. In my view this document leads to irresistable conclusion that there is in existence an encroachment on the municipal lane since the year 1957, and only about 2½ out of which has been removed. I do not find any averment in the petition on the basis of which one could come to the conclusion that, had notice under Sections 196(1), 197 and 198 of the Act been served on the petitioner, she would have been able to bring anything to the notice of the authorities who would have decided the matter by exercising their powers under those sections. Also in course of argument nothing has been suggested. There is no prayer for quashing the ORDER :s of the Municipality or the ORDER :of the Magistrate under Section 198 of the Act. In any event, it is not fit case in which, in the exercise of the writ jurisdiction, we should in the circumstances give any relief to the petitioner. This application is accordingly dismissed, but without costs. Application dismissed