Research › Search › Judgment

Allahabad High Court · body

2007 DIGILAW 2007 (ALL)

SHANTI SINGHAL v. STATE OF UTTAR PRADESH

2007-08-01

ANJANI KUMAR, SABHAJEET YADAV

body2007
JUDGMENT By the Court.—The petitioner by means of this writ petition has sought relief for issue of a writ, order or direction in the nature of certiorari quashing the order of the respondent No. 1 dated 29.4.1999 (Annexure-10) whereby the allotment of land in dispute in favour of the petitioner has been cancelled and for quashing the order of the respondent No. 3 dated 11.5.1999 (Annexure-11) whereby the petitioner has been directed to vacate the allotted land and to remove her constructions thereon forthwith, further relief for issue of a writ, order or direction in the nature of mandamus directing the respondents not to interfere with the possession of the petitioner from the shop in question and respondents be restrained from demolition of the petitioner’s shop on the piece of land allotted to her on 19.2.1998 has also been sought for. 2. The reliefs sought in the writ petition rests on the assertion that on 15.6.1996 the Nagar Palika Parishad had passed a resolution (Annexure-1 of the writ petition) for letting out waste and unused land of the Parishad on rent in public auction after eviction of unauthorised occupants there from. The said resolution also has sanction contemplated in G.O. dated 15.2.1997 (Annexure-2 of the writ petition). In pursuance of the said resolution the respondents No. 2 and 3 took a decision to let out the land over a public drain to the petitioner. The petitioner was allotted an Arazi of Nala admeasuring 22 ft. x 8.5 ft. at Patwai Road by order of respondent No. 2 dated 19.2.1998 on a premium of Rs. 5000/- and monthly rent of Rs. 50/- (Annexure-3 of the writ petition) in pursuance of public auction held on 15.2.1998. The petitioner has deposited the aforesaid premium on 19.2.1998 and thereafter has obtained permission for making construction over the land allotted to her and for that purpose she has deposited a sum of Rs. 150/- on 9.3.98 and her site plan has also been approved by Nagar Palika Parishad. Thereafter the petitioner has constructed three pakka shops over the said land costing about a sum of Rs. 150/- on 9.3.98 and her site plan has also been approved by Nagar Palika Parishad. Thereafter the petitioner has constructed three pakka shops over the said land costing about a sum of Rs. 2.00 lacs and that petitioner is paying regular monthly rent, but all of sudden the impugned order dated 29.4.1999 has been passed cancelling the said allotment on incorrect facts and on irrelevant grounds without affording any opportunity of hearing to the petitioner and thereafter consequential order dated 11th May, 1999 has also been passed directing the petitioner to remove her construction, if any, made over the land and vacate the same, hence this petition. 3. Learned Counsel for the petitioner has submitted that the aforesaid allotment order has been cancelled without affording any opportunity of hearing to the petitioner to have her say in the matter, therefore, the same is nullity and non-est on account of utter violation of principles of natural justice. He further submitted that after allotment of the aforesaid land the petitioner has constructed three pakka rooms and shops by expending over Rs. 2.00 lacs in the aforesaid construction by placing the slab over the drain/nala in question after obtaining permission from Nagar Palika Parishad. Thus, the impugned action of respondents have caused material and pecuniary loss of the petitioner. It is also submitted that recital contained in the impugned order dated 29.4.1999 is based on incorrect statement of facts and in any view of the matter since the petitioner has altered her position by investing substantial amount of money towards the aforesaid construction, therefore, the Nagar Palika Parishad cannot be permitted to change its earlier stand and resile therefrom, thus the respondent is estopped from changing its earlier stand on principle of estoppel operating against it, accordingly, the impugned order and consequential order dated 11.5.1999 could not have been passed in given facts and circumstances of the case. Learned Counsel for the petitioner has also placed reliance upon a decision of Division Bench of this Court rendered in Civil Misc. Learned Counsel for the petitioner has also placed reliance upon a decision of Division Bench of this Court rendered in Civil Misc. Writ Petition No. 23845 of 1999, Purshottam Saran v. State of U.P. and others decided on 3.12.2004, wherein in similar facts and circumstances of the case, the writ petition filed by another person has been allowed on the limited question that the impugned order has been passed without affording opportunity of hearing to the petitioner of the aforesaid case with liberty to the concerned authority to initiate inquiry in accordance with law after giving due opportunity to all concerned in the matter. 4. A detailed counter-affidavit has been filed on behalf of respondents No. 2 and 3 refuting the assertions made in the writ petition and justifying the impugned action taken against the petitioner. However in para 6, 7 and in subsequent paragraphs of the counter-affidavit, it has been specifically stated that Ex-Executive Officer and Ex-Chairman allotted the aforesaid land to the petitioner and 18 other persons without any publication and advertisement of public auction and without holding it at proper and notified place without sanction and no approval of District Magistrate, the prescribed authority was obtained by Nagar Palika Parishad. The Nagar Palika Parishad rather in collusion of petitioner and others allotted the land on a throw premium, thus causing huge pecuniary loss to the Nagar Palika Parishad. 5. We have heard learned Counsel for the parties and also perused the records. On the basis of pleadings of the parties and rival submissions of the learned Counsel for the parties, the question that arises for our consideration is as to whether the land of aforesaid nala/drain of Nagar Palika Parishad has been allotted to the petitioner in accordance with the provisions of law inasmuch as the impugned action taken against the petitioner is non-est and nullity on account of violation of principles of natural justice, if so, to what relief the petitioner is entitled for? 6. In this connection, it is necessary to point out that under Section-7 of the U.P. Municipalities Act, 1916, hereinafter referred to as the Act, the duties of Municipality (Nagar Palika Parishad) have been enumerated which inter alia provides as under : “7. Duties of municipality.—(i) It shall be the duty of every municipality to make reasonable provision within the municipality for— (a)........ (b)........ (bb)....... Duties of municipality.—(i) It shall be the duty of every municipality to make reasonable provision within the municipality for— (a)........ (b)........ (bb)....... (c) cleaning public streets, places and drains, removing noxious vegetation, and abating all public nuisances, (d)........ (dd)........ (e) removing, on the ground of public safety, health or convenience, undesirable obstructions and projections in streets or public places; (f)......... (g).......... (h) constructing, altering and maintaining public streets, culverts, markets, slaughter-houses, latrines, privies, urinals, drains, drainage works and sewerage works; (hh) to (p)................. (q) protecting, maintaining and developing the property vested in, or entrusted to the management of the municipality." 7. Section 116 of the Act deals with properties, which have been vested in Municipality (Nagar Palika Parishad) and under Section 124 of the said Act the provisions have been made in respect of transfer of property by Municipality (Nagar Palika Parishad). For ready reference the provisions of Sections 116 and 124 of the Act are extracted as under : “116. Section 116 of the Act deals with properties, which have been vested in Municipality (Nagar Palika Parishad) and under Section 124 of the said Act the provisions have been made in respect of transfer of property by Municipality (Nagar Palika Parishad). For ready reference the provisions of Sections 116 and 124 of the Act are extracted as under : “116. Property vested in municipality.—Subject to any special reservation made by the State Government, all property of the nature hereinafter in this section specified and situated, within the municipal area shall vest in and belong to the municipality, and shall, with all other property which may become vested in the municipality be under its direction, management and control, that is to say— (a) all public town walls, gates, markets, slaughterhouses, manure and night-soil depots and public buildings of every description which have been constructed or are maintained out of the municipal fund; (b) all public streams, lakes, springs, tanks, wells, works for the supply, storage and distribution of water for public purposes, and all bridges, buildings, engines, materials and things connected therewith or appertaining thereto, and also any adjacent land not being private property appertaining to any public tank or well; (c) all public sewers, drains, culverts and water-courses and all works, materials and things appertaining thereto; (d) all dust, dung, nightsoil, ashes, refuse, animal matter or filth or rubbish of any kind, or dead bodies of animals, collected by the municipality from the streets, houses, privies, sewers, cesspools or elsewhere or deposited in places appointed by the municipality under Section 273; (e) all public lamps, lamp-posts and apparatus connected therewith or appertaining thereto; (f) all land or other property transferred to the municipality by the Government or by gift, purchase or otherwise for local public purposes; and (g) all public streets and the pavements, stones and other materials thereof, and also all trees, erections, materials, implements and things existing on or appertaining to such streets. 124. Power of municipality to transfer property.—(1) Subject to any restriction imposted by or under this Act, a municipality may transfer by sale, mortgage, lease, gift, exchange or otherwise any property vested in the municipality not being property held by it on any trust the terms of which are inconsistent with the right to so transfer. 124. Power of municipality to transfer property.—(1) Subject to any restriction imposted by or under this Act, a municipality may transfer by sale, mortgage, lease, gift, exchange or otherwise any property vested in the municipality not being property held by it on any trust the terms of which are inconsistent with the right to so transfer. (2) Notwithstanding anything contained in sub-section (1) the municipality may, with the sanction of the State Government, transfer to Government any property vested in the municipality, but not so as to affect any trust or public rights to which the property is subject. (3) Provided that every transfer under sub-section (1), other than a lease for a term not exceeding one year, shall be made by instrument in writing sealed with the common seal of the municipality and otherwise complying with all conditions in respect of contracts imposed by or under this Act." 8. In Chapter VII of the Act, provisions have been made pertaining to powers and penalties in respect of buildings, public drains, streets etc. Sections 189, 190 and 191 specifically deals with construction of public drains, alteration of public drains and use of public drains by private owners. For ready reference the provisions of Sections 189, 190 and 191 are quoted as under : “189. Construction of public drains.—The municipality may construct, within or, subject to the provisions of sub-section (2) of Section 120, outside the municipal area, such drains as it thinks necessary for keeping the municipal area properly cleansed and drained and may carry such drains through, across or under any street or place, and after reasonable notice in writing to the owner or occupier into, through or under any buildings or land. (2) Provided that no drain shall be constructed with the limits of a cantonment without the approval of the State Government and otherwise than with the concurrence of the General Officer Commanding the division in which such cantonment is situate or, in the event of such concurrence being withheld, the previous sanction of the Central Government. 190. Alteration of public drains.—(1) The municipality may, from time to time, enlarge, lessen, alter the course of, cover in or otherwise improve a public drain and may discontinue, close up or remove any such drain. 190. Alteration of public drains.—(1) The municipality may, from time to time, enlarge, lessen, alter the course of, cover in or otherwise improve a public drain and may discontinue, close up or remove any such drain. (2) The exercise of the power conferred by sub-section (I) shall be subject to the condition that the municipality shall provide another and equally effective drain in place of any existing drain of the use of which any person is deprived by the exercise of the said power. 191. Use of public drains by private owners.—(1) The owner or occupier of a building or land within the municipal area shall be entitled to cause his drains to empty into the drains of the municipality, provided that he first obtains the written permission of the municipality, and that he complies with such conditions consistent with any bye-law as the municipality prescribes as to the mode in which, and the superintendence under which the communications are to be made between drains not vested in the municipality and drains which are so vested. (2) Whoever, without the written permission of the municipality or in contravention of any bye-law or of any direction or condition made or imposed under sub-section (1), makes or causes to be made, or alters or causes to be altered, a connection of a drain belonging to himself or to some other person with a drain vested in the municipality, shall be liable upon conviction to a fine which may extend to fifty rupees and the municipality may be written notice require such person to close, demolish, alter, re-make or otherwise deal with such connection as it deems fit.” 9. However, Section 209 of the Act deals with provisions of sanction of the projections over streets and drains subject to any Rules made by the State Government prescribing the conditions for the such sanction and Section 236 deals with the provisions of unauthorised constructions over drains and water works, which are extracted as under : “209. However, Section 209 of the Act deals with provisions of sanction of the projections over streets and drains subject to any Rules made by the State Government prescribing the conditions for the such sanction and Section 236 deals with the provisions of unauthorised constructions over drains and water works, which are extracted as under : “209. Sanction of municipality to projections over streets and drains.—(1) Subject to any rules made by the State Government prescribing the conditions for the sanction of a municipality of projections over streets or drains, a municipality may give written permission, where provision is made by a bye-law for the giving of such permission— (a) to the owners or occupiers of buildings in or on streets to erect or re-erect open verandahs, balconies, or rooms, to project over the street from any upper storey thereof, at such height from the surface of the street, and to such an extent beyond the line of the plinth or basement wall as are prescribed in such bye-laws; and (b) to the owner or occupier of any building or land to erect or re-erect any projection or structure so as to overhang, project into, or encroach on or over a drain in a street to such an extent, and in accordance with such conditions, as are in like manner prescribed. (2) In giving permission, under clause (a) of sub-section (1) a municipality may prescribe the extent to which, and the conditions under which, any roofs, caves, weather-boards, shop-boards and the like may be allowed to project over such streets. 236. Unauthorized construction of tree over drain or waterworks.—(1) Where, on or after the 10th day of March, 1900, any street has been made or any building, wall or other structure has been erected or any tree has been planted without the permission in writing of the municipality over a public drain or culvert or a waterwork vested in the municipality, the municipality may— (a) by notice require the person who has made the street, erected the structure or planted the tree, or the owner or occupier of the land on which the street has been made, structure erected or tree planted, to remove or deal in any other way the municipality thinks fit with the street, structure or tree, or (b) itself remove or deal in any other way it thinks fit with the street, structure or tree. (2) Any expense incurred by a municipality by action taken under clause (b) of sub-section (1) shall be recoverable in the manner prescribed by Chapter VI from the person by whom the street was made, structure erected or tree planted.” 10. From a bare survey of the relevant provisions of the Act referred herein before, it is clear that the municipality is under legal obligation under Section 7 of the Act to make reasonable provision for (i) cleaning public streets, places and drains, removing noxious vegetation, and abating all public nuisances, (ii) constructing, altering, and maintaining public streets, culverts, markets, slaughter-houses, latrines, privies, urinals, drains, drainage works and sewerage works; (iii) protecting, maintaining and developing the property vested in, or entrusted to the management of the municipality. Section 116 of the Act specifically provides that subject to any special reservation made by the State Government, all property of the nature enumerated in the aforesaid section and situated within the municipal area shall vest in and belong to the municipality, and shall, all other property which may become vested in municipality be under its direction, management and control. Section 124(1) of the Act specifically deals with the power of municipality to transfer property, which provides that subject to any restriction imposed by or under this Act, the municipality may transfer by sale, mortgage, lease, gift, exchange or otherwise any property vested in the municipality not being property held by it on any trust the terms of which are inconsistent with the right to so transfer. Sub-section (2) of the said section further provides that notwithstanding anything contained in sub-section (1) the municipality may, with the sanction of the State Government, transfer to Government any property vested in the municipality, but not so as to affect any trust or public rights to which the property is subject. Sub-section (3) of the said section further provides that every transfer under sub-section (1), other than a lease for a term not exceeding one year, shall be made by instrument in writing sealed with the common seal of the municipality and otherwise complying with all conditions in respect of contracts imposed by or under this Act. 11. Sub-section (3) of the said section further provides that every transfer under sub-section (1), other than a lease for a term not exceeding one year, shall be made by instrument in writing sealed with the common seal of the municipality and otherwise complying with all conditions in respect of contracts imposed by or under this Act. 11. Under Section 189 of the Act the provisions have been made to the effect that municipality may construct, within or, subject to the provisions of sub-section (2) of Section 120, outside the municipal area, such drains as it thinks necessary for keeping the municipal area properly cleansed and drained and may carry such drains through, across or under any street or place, and after reasonable notice in writing to the owner or occupier into, through or under any buildings or land. Under Section 190 of the Act the municipality is empowered to enlarge, lessen, alter the course of, cover in or otherwise improve a public drain from time to time and may discontinue, close up or remove any such drain but this power is subject to the condition that municipality shall provide another and equally effective drain in place of any existing drain of the use of which any person is deprived by the exercise of the said power. Section 191 of the Act authorised private owners or occupier of a building or land within the municipal area to cause his drains to empty into the drains of the municipality, provided that he first obtains the written permission of the municipality, and that he complies with such conditions consistent with any bye-law as the municipality prescribes as to the mode in which, and the superintendence under which the communications are to be made between drains not vested in the municipality and drains which are so vested. 12. 12. However, Section 209 of the Act provides that subject to any rules made by the State Government prescribing the conditions for the sanction of a municipality of projections over streets or drains, a municipality may give written permission, where provision is made by a bye-law for the giving of such permission to the owner or occupier of any building or land to erect/re-erect any projection or structure so as to overhang, project into, or encroach on or over a drain in a street to such an extent, and in accordance with such conditions, as are in like manner prescribed. Section 236 provides that where any street has been made or any building, wall or other structure has been erected or any tree has been planted without the permission in writing of the municipality over a public drain or culvert or a water-work vested in the municipality, the municipality may require the person to remove such unauthorised construction or plantation, who has constructed or planted the tree, as the case may be, or itself remove or deal in any other way. 13. At this juncture, we would refer the development and scope of the “Doctrine of the Public Trust” which has its root in the development of legal theory of ancient Roman Empire. The doctrine has been applied by Hon’ble Apex Court in M.C. Mehta v. Kamal Nath and others, (1997) 1 S.C.C. 388 , (popularly known as Span Resort case) wherein respondents who had constructed a Motel located at the bank of river Beas interfering with natural flow of river, has been held to have committed breach of the doctrine of public trust. While dealing with the development and scope of the doctrine in para 24 and 25 of the decision Hon’ble Apex Court has observed as under : “24. The ancient Roam Empire developed a legal theory known as the “Doctrine of the Public Trust”. It was founded on the ideas that certain common properties such as rivers, seashore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general public. Our contemporary concern about “the environment” bear a very close conceptual relationship to this legal doctrine. Under the Roman law these resources were either owned by no one (res nullious) or by every one in common (res communious). Our contemporary concern about “the environment” bear a very close conceptual relationship to this legal doctrine. Under the Roman law these resources were either owned by no one (res nullious) or by every one in common (res communious). Under the English common law, however, the Sovereign could own these resources but the ownership was limited in nature, the Crown could not grant these properties to private owners if the effect was to interfere with the public interest in navigation or fishing. Resources that were suitable for these uses were deemed to be held in trust by the Crown for the benefit of the public. Joseph L. Sax, Professor of Law, University of Michigan— proponent of the Modern Public Trust Doctrine—in an erudite article “Public Trust Doctrine in Natural Resource Law ; Effective Judicial Intervention”, Michigan Law Review, Vol. 68, Part 1 p. 473, has given the historical background of the Public Trust Doctrine as under : “The source of modern public trust law is found in a concept that received much attention in Roman and English Law—the nature of property rights in rivers, the sea, and the seashore. That history has been given considerable attention in the legal literature, need not be repeated in detail here. But two points should be emphasized. First, certain interests, such as navigation and fishing, were sought to be preserved for the benefit of the public; Accordingly, property used for those purposes was distinguished from general public property which the sovereign could routinely grant to private owners. Second, while it was understood that in certain common properties - such as the seashore, highways, and running water—‘perpetual use was dedicated to the public’, it has never been clear whether the public had an enforceable right to prevent infringement of those interests. Although the State apparently did protect public uses, no evidence is available that public rights could be legally asserted against a recalcitrant Government.” 25. The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. According to Professor Sax the Public Trust Doctrine imposes the following restrictions on governmental authority : “Three types of restrictions on governmental authority are often thought to be imposed by the public trust; first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third the property must be maintained for particular types of uses.” 14. The aforesaid doctrine has again been applied by Hon’ble Apex Court in M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and others, (popularly known as Jhandewala Park’s case) AIR 1999 S.C. 2468 , wherein the Lucknow Nagar Nigam earlier known as Lucknow Nagar Mahapalika permitted a private builder namely M.I. Builders Pvt. Limited appellant in the aforesaid case to construct underground shopping complex in a historical park namely Jhandewala Park, Aminabad Market, Lucknow. The construction of shopping complex in the park was found against the Municipal Act and master plan for the city. The Hon’ble Apex Court has held that allowing the construction of underground shopping complex in the park, Mahapalika has violated not only Section 114 of the Act but also the public trust doctrine. The contention of appellant that Mahapalika is bound by the doctrine of estoppel has also been repelled by Hon’ble Apex Court. The pertinent obervations made by Hon’ble Apex Court in para 61, 75 and 83 of the decision are extracted as under : “61. Thus by allowing construction of underground shopping complex in the park of Mahapalika has violated not only Section 114 of the Act but also the public trust doctrine. 75. Action of the Mahapalika in agreeing to the construction of underground shopping complex in contravention of the provisions of the Act and then entering into an agreement with the builder against settled norms was wholly illegal and has been held to be so by the High Court. 75. Action of the Mahapalika in agreeing to the construction of underground shopping complex in contravention of the provisions of the Act and then entering into an agreement with the builder against settled norms was wholly illegal and has been held to be so by the High Court. No doubt Mahapalika is a continuing (constituted) body and it will be estopped from changing its stand in the given case. But when Mahapalika finds that its action was contrary to the provisions of law by which it was constituted there could certainly be no impediment in its way to change its stand. There cannot be any estoppel operating against the Mahapalika. Principles laid in Union of India v. M/s. Indo-Afgan Agencies Ltd., (1968) 2 SCR 366 : ( AIR 1968 SC 718 ) and of Calcutta High Court in Ganges Manufacturing Co. v. Sourujmull, (1880) ILR 5 Cal 669 cannot apply to the facts of the present case. 83.............There is no alternative to this except to dismantle the whole structure and restore the park to its original condition leaving a portion constructed for parking. We are aware that it may not be possible to restore the park fully to its original condition as many trees have chopped off and it will take years for the trees now to be planted to grow. But beginning has to be made.” 15. In view of aforestated legal position, we find that vide resolution dated 15.6.1996, contained in Annexure-1 of the writ petition at item No. 3 the Nagar Palika Parishad had resolved to let-out the land of Nagar Palika on rent by holding public auction. There is no indication at all that the aforesaid particular land had ever been mentioned in said resolution as it is not in dispute that the aforesaid land was virtually drain/nala of the Municipality and space over the nala had been allotted to the petitioner. From the perusal of Government order dated 10th February, 1997 issued subsequently after the aforesaid resolution of Nagar Palika Parishad as a guiding principle for augmenting the fund of the municipality, it appears that the instructions issued to the local bodies to dispose of the building and property of the municipality which are lying waste and unused and there are danger of unauthorised occupation and encroachment of such property. In para 3 of the aforesaid Government order it has been stated that it is often found that citizens of municipality makes encroachment over the public streets and public drains of municipality and local bodies are sitting idle for such state of affairs, therefore, they were directed to take action against those unauthorised occupants and impose penalty upon them but there is nothing to indicate in the aforesaid Government order too, which permits the allotment of land or space over the public drain or nala of municipality. It can also not be disputed that on construction of shops by the petitioner over the space of public drain of Municipality by placing slab thereon, the free and natural flow of water through it would be interfered with and it would be difficult to clean the drain by taking out the deposits normally made in the basin of the drain resulting that the public would face the problems of usual water lodging and pollution caused therefrom. It is also not the case of petitioner that municipality has provided another equally effective drain or nala in place of existing drain for the use of which the persons of the area have been deprived of by exercise of such power of municipality. According to Professor Sax, the public trust doctrine imposes the restriction upon the governmental authority that the property subject to the public trust (public use) must not only be used for public purposes but it must be held available for use by the general public and the property may not be sold even for a fair cash equivalent and the same must be maintained for particular types of uses. It would be wholly unjustified to make them a subject of private ownership. The aforesaid observations made by Professor Sax has been approved by Hon’ble Apex Court in case of M.C. Mehta v. Kamal Nath (supra), thus become law of the land. The doctrine of public trust so evolved has also been applied by Hon’ble Apex Court in Jhandewala Park’s case (supra), therefore, we have no hesitation to apply said doctrine in instant case also. And further it is also nowhere stated in the body of writ petition that aforesaid allotment was made to the petitioner after due publication and advertisement of auction in question. And further it is also nowhere stated in the body of writ petition that aforesaid allotment was made to the petitioner after due publication and advertisement of auction in question. Since public drain of Municipality is property vested in municipality and is also subject to public rights, therefore, in our opinion, it could not be transferred by sale, mortgage, lease, gift, exchange or otherwise, even with the sanction of State Government under Section 124 of the Act and no other provision, either under the Act or Rules has been brought to our notice which authorises transfer of property of such public utility, which is subject of public rights. Therefore, in given facts and circumstances of the case, we have no hesitation to hold that allotment of nala/drain of Municipality made by way of transfer in favour of the petitioner is not only in violation of provisions of the Act but also in violation of The Public Trust Doctrine as held by Hon’ble Apex Court in cases referred herein before. 16. It is not in dispute that the aforesaid land was allotted to the petitioner by Nagar Palika Parishad and in pursuant thereof she has constructed three pakka rooms or shops over aforesaid space of public nala/public drain of municipality by placing slab over public drain. The permission for making such construction and approving site plan by municipality on 9.3.1998 is also in hot and haste inasmuch as wholly contrary to the provisions of Section 209 of the Act where the projection over street or drain can be permitted by municipality in writing subject to any Rule made by the State Government prescribing such condition to the extent indicated therein. But the aforesaid provision in our considered opinion, also does not authorise such construction as made by the petitioner over the public drain or nala of the municipality, therefore, such permission has to be held contrary to the provisions of the Act and construction so made has to be held unauthorised within the meaning of Section 236 of the Act. But the aforesaid provision in our considered opinion, also does not authorise such construction as made by the petitioner over the public drain or nala of the municipality, therefore, such permission has to be held contrary to the provisions of the Act and construction so made has to be held unauthorised within the meaning of Section 236 of the Act. Thus, in our opinion, the municipality has failed to discharge its duties imposed upon it for cleaning the public street, place and drain and contrary thereto has made the allotment of space over public drain in favour of petitioner in utter disregard of the provisions of Sections 189 and 190 of Municipality Act, thereby deprived the citizens for use of public drain contrary to the provisions of Section 191 of the said Act without constructing any equally effective public drain in place of existing drain. Therefore, in given facts and circumstances of the case, we are of the further opinion that mere construction of three pakka shops over public drain, costing expenses of Rs. 2.00 lacs, would not bound the Municipality by doctrine of promissory estoppel as the said doctrine cannot be applied against the Municipality and State Government, in a situation where the earlier action of the Municipality was held to be contrary to law. 17. In view of our aforesaid discussion, now next question that arises for our consideration is as to whether, in given facts and circumstances of the case, this Court would be justified in refusing to grant the relief sought for by the petitioner in exercise of discretionary jurisdiction under Article 226 of the Constitution of India, even though there was breach of natural justice? In this connection, it is necessary to point out that Hon’ble Mr. Justice Arijit Pasayat of Hon’ble Apex Court in para 15 of the decision rendered in Canara Bank and others v. Shri Debasis Das and others, JT 2003(3) SC 183, has observed that the adherence to the principles of natural justice as is recognized by all civilised States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. But the question before us is something different. It is not in dispute that principles of natural justice was violated while passing impugned order against the petitioner. The question before us is as to whether in given facts and circumstances of the case, this Court would be justified in refusing the relief sought for by the petitioner in exercise of discretionary jurisdiction under Article 226 of the Constitution? 18. In this connection, we would refer the case of M.C. Mehta v. Union of India and others, A.I.R. 1999 S.C. 2583, wherein the question before us has received consideration of Hon’ble Apex Court and it has been held that the Court can under Article 32 or Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party in violation of principles of natural justice or is otherwise not in accordance with law. The pertinent observations made by Hon’ble Apex Court, while taking note of earlier decisions in para 18 and 19 of the decision are as under : “18. We shall initially refer to two cases where discretion was exercised not to grant relief and the first one was a case where relief was refused even though there was breach of natural justice. The first one is Gadde Vankateswara Rao v. Govt. of Andhra Pradesh, (1966) 2 SCR 172 : ( AIR 1966 SC 828 ). We shall initially refer to two cases where discretion was exercised not to grant relief and the first one was a case where relief was refused even though there was breach of natural justice. The first one is Gadde Vankateswara Rao v. Govt. of Andhra Pradesh, (1966) 2 SCR 172 : ( AIR 1966 SC 828 ). There the Panchayat Samithi, in exercise of its statutory powers passed a resolution on 25.8.1960 to locate it at Lingapalem. On a representation by villagers of Dharmajigudem. Government passed orders on 7.3.1962 setting aside the second resolution dated 29.5.1961 and thereby restoring the earlier resolution dated 25.8.1960. The result was that the health centre would continue at Dharmajigudem. Before passing the orders dated 7.3.62, no notice was given to the Panchayat Samithi. This Court traced the said order of the Government dated 7.3.1962 to Section 62 of the Act and if that were so, notice to the Samithi under Section 62(1) was mandatory. Later, upon a review petition being filed, Government passed another order on 18.4.1963 cancelling its order dated 7.3.62 and accepting the shifting of the primary centre to Lingapalem. This was passed without notice to the villagers of Dharmajigudem. This order of the Government was challenged unsuccessfully by the villagers of Dharmaji-gudem in the High Court. On appeal by the said villagers to this Court, it was held that the latter order of the Government dated 8.4.1963 suffered from two defects, it was issued by Government without prior show cause notice to the villagers of Dharmajigudem and Government had no power of review in respect of Government orders passed under Section 62(1). But that there were other facts which disentitled the quashing of the order dated 18.4.63 even though it was passed in breach of principles of natural justice. This Court noticed that the setting aside of the latter order dated 18.4.63 would restore the earlier order of Government dated 7.3.62 which was also passed without notice to the affected party, namely, the Panchayat Samithi. It would also result in the setting aside of a valid resolution dated 29.5.61 passed by the Panchayat Samithi. This Court refused relief and agreed that the High Court was right in not interfering under Article 226 even if there was violation of natural justice. Subba Rao, J. (as he then was) observed (p. 189) (of SCR): (at pp. It would also result in the setting aside of a valid resolution dated 29.5.61 passed by the Panchayat Samithi. This Court refused relief and agreed that the High Court was right in not interfering under Article 226 even if there was violation of natural justice. Subba Rao, J. (as he then was) observed (p. 189) (of SCR): (at pp. 837 of AIR) as follows : “Both the orders of the Government, namely, the order dated March 7, 1962 and that dated April 18, 1963, were not legally passed; the former, because it was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act and also because it did not give notice to the representatives of Dharmajigudem village. His Lordship concluded as follows : “In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963? If the High Court had quashed the said order, it would have restored an illegal order— it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case." The above case is clear authority for the proposition that it is not always necessary for the Court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The Court can under Article 32 or Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party, in violation of principles of natural justice or is otherwise not in accordance with law. 19. We would next refer to another case, where, though there was no breach of principles of natural justice, this Court held that interference was not necessary, if the result of interference would be the restoration of another order which was not legal. In Mohammad Swalleh v. Third Addl. 19. We would next refer to another case, where, though there was no breach of principles of natural justice, this Court held that interference was not necessary, if the result of interference would be the restoration of another order which was not legal. In Mohammad Swalleh v. Third Addl. District Judge, Meerut, (1988) 1 SCC 40 : ( AIR 1988 SC 94 ), which arose under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, the prescribed authority dismissed an application filed by the landlord and this was held clearly to be contrary to the very purpose of Section 43(2) (rr) of the Act. The District Court, entertained an appeal by the landlord and allowed the landlord’s appeal without noticing that such an appeal was not maintainable. The tenant filed a writ petition in the High Court contending that the appeal of the landlord before the District Court was not maintainable. This was a correct plea. But the High Court refused to interfere. On further appeal by the tenant, this Court accepted that though no appeal lay to the District Court, the refusal of the High Court to set aside the order of the District Judge was correct as that would have restored the order of the prescribed authority, which was illegal.” 19. In M.C. Mehta v. Union of India and others (supra), the Hon’ble Apex Court has further examined the question of breach of audi alteram partem, rules, a facet of principle of natural justice, vis-a-vis proof of prejudice caused to the person approaching the Court on account of breach of said principles of natural justice, and also traced out another legal theory i.e. Useless formality theory. However, without commenting on merit and correctness of the aforesaid theory, Hon’ble Apex Court ultimately held that if on admitted or indisputable factual position only one conclusion is possible and permissible, the Court need not issue a writ merely because there is violation of principles of natural justice. The pertinent observations made in para 21, 22, 23 and 24 are extracted as under : “21. It is true that in Ridge v. Baldwin, 1964 AC 40, it has been held that breach of principles of natural justice is in itself sufficient to grant relief and that no further de facto prejudice need be shown. The pertinent observations made in para 21, 22, 23 and 24 are extracted as under : “21. It is true that in Ridge v. Baldwin, 1964 AC 40, it has been held that breach of principles of natural justice is in itself sufficient to grant relief and that no further de facto prejudice need be shown. It is also true that the said principles have been followed by this Court in several cases but we might point out that this Court has not laid down any absolute rule. This is clear from the judgment of Chinnappa Reddy, J. in S.L. Kapoor v. Jagmohan, (1980) 4 SCC 379 : ( AIR 1981 SC 136 ). After stating (p. 395)(of SCC): (at p. 147 of AIR) that ‘principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed’ and that ‘non-observance of natural justice is itself prejudice to a man and proof of prejudice independently of proof of denial of natural justice is unnecessary’, Chinnappa Reddy, J. also laid down an important qualification (p. 395) (of SCC): (at p. 147 of AIR) as follows : “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.” 22. It is, therefore, clear that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the Court need not issue a writ merely because there is violation of principles of natural justice. 23. Before we go into the final aspects of this contention, we would like to state that cases relating to breach of natural justice, do also occur where all facts are not admitted or are not all beyond dispute. In the context of those cases here is a considerable case law and literature as to whether relief can be refused even if the Court thinks that the case of the applicant is not one of “real substance” or that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed. See Malloch v. Aberdeen Corporation, (1971) 1 WLR 1578, (per Lord Reid and Lord Wilberforce), Glynn v. Keele University, (1971) I WLR 87, Chinnamond v. British Airport Authority, 1980(1) WLR 582 and other cases where such a view has been held. The latest addition to this view is R. v. Ealing Magistrates’ Court exp. Fannaran, (1996) 8 Admn LR 351 (358) (See Desmith Suppl. p. 89) (1998) where Straughton LJ. Held that there must be ‘demonstrable beyond doubt’ that the result would have been different. Lord Woolf in Lloyd v. McMahon (1987) 2 WLR 821 (862) has also not disfavoured refusal of discretion in certain cases of breach of natural justice. The New Zealand Court in McCarthy v. Grant, 1959 NZLR 1014, however, goes half way when it says that (as in the case of bias), it is sufficient for the applicant to show that there ‘real likelihood —not certainly—of prejudice’. On the other hand, Garner Administrative Law (8th Edition 1996, pp. 271-272) says that slight proof that the result would have been different is sufficient. On the other side of the argument, we have apart from Ridge v. Baldwin, (1964 AC 40), Megarry J. in John v. Rees, (1969) 2 WLR 1294, stating that there are always ‘open and shut cases’ and no absolute rule of proof of prejudice can be laid down. Merits are not for the Court but for the authority to consider. Ackner, J. has said that the “useless formality theory” is a dangerous one and, however, inconvenient, natural justice must be followed. His Lordship observed that ‘’convenience and justice are often not on speaking terms”. More recently Lord Bingham has deprecated the ‘useless formality’ theory in R. v. Chief Constable of the Thames Vallye Police Forces exp. Cotton (1990) 1 RLR 344, by giving six reasons, (see his article ‘Should Public Law Remedies be Discretionary?’ 1991 PL 64). A detailed and emphatic criticism of the ‘useless formality theory’ has been made much earlier in ‘Natural Justice, Substance or Shadow’ by Prof. D.H. Clark of Canada (see 1975 PL pp. 27-63) contending that Malloch and Glynn were wrongly decided. Foulkes (Administrative Law, 8th Ed. 1996, p. 323), Craig (Administrative Law, 3rd Ed. p. 596) and others say that the Court cannot pre-judge what is to be decided by the decision-making authority. DeSmith (5th Ed. D.H. Clark of Canada (see 1975 PL pp. 27-63) contending that Malloch and Glynn were wrongly decided. Foulkes (Administrative Law, 8th Ed. 1996, p. 323), Craig (Administrative Law, 3rd Ed. p. 596) and others say that the Court cannot pre-judge what is to be decided by the decision-making authority. DeSmith (5th Ed. 1994 paras 10,031 to 10,036) says Courts have not yet committed themselves to any one view though discretion is always with the Court. Wade (Administrative Law, 5th Ed. 1994, pp. 526-530) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a “real likelihood" or success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is considerable unanimity that the Courts can, in exercise of the their “discretion”, refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma, (1996) 3 SCC 364 : (1996 AIR SCW 1740 : AIR 1996 SC 1669 ), Rajendra Singh v. State of M.P., (1996) 5 SCC 460 : (1996 AIR SCW 3424 : AIR 1996 SC 2736 ), that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived. 24. We do not propose to express any opinion on the correctness or otherwise of the “useless formality” theory and leave the matter for decision in an appropriate case, inasmuch as, in the case before us, “admitted and indisputable” facts show that grant of a writ will be in vain (as pointed out by Chinnappa Reddy, J.)” 20. 24. We do not propose to express any opinion on the correctness or otherwise of the “useless formality” theory and leave the matter for decision in an appropriate case, inasmuch as, in the case before us, “admitted and indisputable” facts show that grant of a writ will be in vain (as pointed out by Chinnappa Reddy, J.)” 20. The aforesaid view taken by Hon’ble Apex Court in M.C. Mehta v. Union of India case (supra) has also been reiterated in subsequent decisions rendered by Hon’ble Apex Court in Canara Bank and others v. Shri Debasis Das case (supra) and in Canara Bank v. V.K. Awasthy, JT 2005 (4) SC 40, but no concluded opinion has been expressed by Hon’ble Apex Court in aforesaid cases on the correctness or otherwise of the useless formality theory and matter has been left open to be decided in appropriate case. Therefore,we have to examine the issue in the light of law laid down by the Hon’ble Apex Court, thus, we find that on striking down of the impugned orders passed by Respondents, even in violation of audi alteram partem rule, a facet of principle of natural justice, the order of allotment of public drain of Municipality in favour of the petitioner would be revived and restored automatically, to which, we have already held that the order has been passed contrary to the aforesaid provisions of the Act, in other words, it would amount to restoration of illegal orders or perpetuating the illegality in infinite, therefore, in such a facts and circumstances of the case, as held by Hon’ble Apex Court, this Court in exercise of discretionary jurisdiction under Article 226 can be justified in refusing to grant relief sought for by the petitioner. 21. In view of what has been stated above, we respectfully disagree with the view taken by the Division Bench of this Court in the case of Purushottam Saran v. State of U.P. and others, writ petition No. 23845 of 1999, decided on 3rd December, 2004, referred herein-above. 22. 21. In view of what has been stated above, we respectfully disagree with the view taken by the Division Bench of this Court in the case of Purushottam Saran v. State of U.P. and others, writ petition No. 23845 of 1999, decided on 3rd December, 2004, referred herein-above. 22. Besides, viewing the matter from another angle in view of foregoing discussion, we find that on the admitted or indisputable factual position only one conclusion can be drawn, that is the allotment of land over public drain of Municipality could not be legally possible and permissible in favour of the petitioner, therefore, the issue of writ in favour of the petitioner would be exercise of discretion in futility, accordingly, we need not to issue such futile writ not because of the reason that observance of principles of natural justice is not necessary but for the reason that in given facts and circumstances of the case this Court need not to issue futile writs. In other words, in such facts and circumstances of the case, issue of any writ, order or direction for observance of the aforesaid facet of principle of natural justice would be an empty or useless formality, therefore, in our opinion, useless formality theory can be pressed into service. 23. In view of foregoing discussion, we are of the considered opinion that the writ petition is devoid of merit hence liable to be dismissed, accordingly, the same is hereby dismissed. 24. There shall be no order as to costs. ————