High Court
Case Details
WP(C) 1033/2013 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (CAV) Both the writ petitions by and between the same parties relating to more or less the same issue have been heard together and are being disposed of by this commo n judgement and order.
Decision
The writ petitions seek to enforce the principle of promissory estoppel 2. against the respondents, more particularly, the Indo-Tibetan Border Police Force (ITBF) in respect of the sale of land belonging to the petitioner Tea Estate. F or a ready reference, the prayers made in both the writ petitions are quoted bel ow :- (cid:28)WP(C) 2329/2011 : In the premises aforesaid it is therefore, humbly prayed that Your Lordships may be pleased to admit this petition, call for the records of t he case and issue a Rule calling upon the respondents to show cause as to why a writ in the nature of - A. Certiorari shall not be issued to set aside and quash the impugned lette r No. RSS.405/2007/104 dated 24.02.2010 issued by the Joint Secretary, Revenue * Disaster Management Department, Government of Assam staying the sale permission for selling the petitioner’s land to 9th Bn. ITBP Force. B. Mandamus directing the Respondent Authorities to allow the petitioner to sale its land measuring 27- Bighas covered by Patta No.2 and Dag Nos. 53, 4/124 , 52, 19, 67, 75, 74, 22(part), 33/127 (Part), 18 and 17(part) of Mancotta Khani kar Mouza under Dibrugarh, West Revenue Circle to 9th Bn, ITBP Force, C/o. 99 AP O for establishing a new unit and, upon perusal of the records and hearing the p arties be pleased to make the Rule absolute and / or pass any such further order s /directions as your Lordships may deem fit and proper. ********* WP(C) 1033/2013 : Under the facts and circumstances stated herein above it is t herefore humbly prayed that Your Lordships would be pleased to admit this petiti on, call for the records of the case and issue Rule calling upon the Respondents to show-cause as to why a writ in the nature of - A. Mandamus shall not be issued directed the ITBP authorities to take the o fficer/proposal made by them to the petitioner vide letter dated 04/05/2007 to i ts logical conclusion by completing the process of acquiring the petitioner’s la nd in accordance with law and, B. Certiorari shall not be issued to set aside and quash the acquisition pr ocess of land belonging to Manohari Tea Estate for establishing an ITBP Unit and upon causes being shown be further pleased to make the Rule absolute and / or p ass such other order (s) as Your Lordships may deem fit and proper to grant adeq uate relief to the petitioner. (cid:29) The basis facts relating to filing of the writ petitions are as follows :- 3. The land measuring 270 Bighas covered by Patta No. 2 and Dag no. 53, 4/1 24, 52, 19, 67, 74, 75, 22 (part), 33/127 (part), 18 and 17 being the part of Ma ncotta Khanikar Mouza in the district of Dibrugarh under Dibrugarh West Revenue Circle belongs to the petitioner Tea Estate. The petitioner also owns some other land contiguous to the said plot of land covered by the same Patta No.2. As sta ted in the writ petition, the petitioner Tea Estate is exempted from ceiling lim it as per the provisions of Section, sub-section 2(a) of the Assam Fixation of C eiling of Land Holdings Act, 1956. 4. The ITBP was in search of a suitable plot of land measuring 270 Bighas, equivalent to 90 acres for establishing its new unit at Dibrugarh. Accordingly, the Deputy Commissioner, Dibrugarh was requested by the ITBP officials to submit a report regarding availability of a compact Govt. plot of land under Dibrugarh (East/West) Revenue Circle for allotting the same to 9th Bn. ITBPF. Thereafter, the Additional Deputy Commissioner (R), Dibrugarh vide his letter dated 29/05/2 007 informed the ITBPF officials about the non-availability of Govt. land. 5. After the aforesaid development, the Commandant, 9th Bn, ITBPF having co me to know about the aforesaid plot of land belonging to the petitioner Tea Esta te wrote the Annexure-1 letter dated 4.5.2007 to the proprietor of the Tea Estat e requesting to apprise as to whether the petitioner Tea Estate is interested to sell the aforesaid plot of land as the same was found to be one of the suitable plots for the purpose of setting up the new unit of ITBPF. 6. In response to the said letter, the proprietor of the petitioner Tea Est ate by his letter dated 5.5.2007 while giving the details of the land also expre ssed its intention to sell the land subject to the condition that it would get t he prevailing market price + additional compensation thereon and also compensati on for Tea bushes/ trees standing on the said plot of land as per the provisions of Land Acquisition and Requisition Act, 1894. 7. Immediately after the aforesaid letter dated 5.5.2007, the Commandant of 9th Bn, ITBPF by his letter dated 7.5.2007 addressed to the Deputy Commissioner (Revenue) Dibrugarh sought for the permission to purchase the aforesaid plot of land belonging to the petitioner. Be it stated here that the copy of the said l etter was not endorsed to the representative of the petitioner Tea Estate. The s aid letter was followed by the letter dated 29.5.2007 addressed to the Principal Secretary to the Govt. of Assam in the Revenue Department (Settlement) by the D eputy Commissioner, Dibrugarh. By the said letter, a request was made to accord necessary permission for sale and purchase of the said plot of land. Copy of thi s letter was also not endorsed to the petitioner. Thereafter, the Govt. of Assam in the Revenue and Disaster Management Department by its letter dated 21.01.200 8 conveyed the permission of the Government in the said department to sell the p lot of land subject to clearance of all necessary dues to the Govt. and payment of admissible stamp duty and registration fee of sale deeds as per valuation fix ed at Rs. 2.5 lakhs per bigha. The copy of the said letter was endorsed to the p etitioner and also the Commandant 9th Bn. ITBPF. 8. When the matter rested thus and nothing happened thereafter for almost 3 years the Assam Chah Mazdoor Sangha (respondent No.4 in WP(C) No. 2329/2011, by its letter dated 30.09.2010 addressed to the Revenue Minister, Assam conveyed i ts decision to withdraw its earlier objection in respect of the sale of the land by the petitioner to the ITBPF. It appears that the respondent no.4 was apprehe nsive of retrenchment of the workers and accordingly objected to the sale of the land. In the mean time, the Govt. of Assam in the Revenue and Disaster Manageme nt Department by its letter dated 02.02.2008 apprised the Deputy Commissioner, D ibrugarh that for the documents executed by or in favour of the Govt., no stamp duty was levyable under the law as per Section 3 Provision 1 of the Stamp Act. B y the said letter, it was further intimated that the ITBPF being a Central Gover nment organisation, there is no question of payment of registration fee and stam p duty. Thereafter by Annexure-11 letter dated 24.2.2010, the Govt. of Assam in the said department intimated the Deputy Commissioner, Dibrugarh about the stay of the sale permission by the Governor of Assam. 9. Amidst the aforesaid happening, the authority in the office of the Direc torate of ITBPF, Ministry of Home Affairs, new Delhi by its Annexure-12 letter d ated 23/11/2009 requested the Deputy Commissioner, Dibrugarh to apprise as to wh ich one of the two plots of land, one belonging to the petitioner and other belo nging to another Tea Estate, namely, Ghooronia Tea Estate would be suitable for the purpose of establishing the Unit. By the said letter it was clearly indicate d that the ITBPF would like to avoid unnecessary litigation or any opposition. 10. Responding to the said letter, the Deputy Commissioner, Dibrugarh by his letter dated 5.4.2010 furnished the intimation that the Govt. of Assam in the R evenue Department had stayed the permission for sale of the land belonging to th e petitioner Tea Estate. By the said letter, the authority in the ITBPF was requ ested to pursue another option. 11. The aforesaid development was followed by a discussion that was held amo ng the petitioner Tea Estate, the aforesaid Ghooronia Tea Estate, Khanikar G.P., Secretaries of Chah Mazdoor Sangha and ATTSA, Dibrugarh. In the said meeting, t he authorities of both the tea gardens assured that the interest of the workers of the Tea Estate would be protected. In the said meeting discussion was made re garding the proposal for setting up the ITBP Unit at tea garden and the efforts made by both the Tea Gardens. 12. It is in the aforesaid back drop, it is the case of the petitioner that since there was promise made out to it by the ITBPF to purchase the land belong ing to it, they are now precluded from purchasing another plot of land belonging to the respondent no.5 in WP(C) No.1033/2013. Be it stated here that in the mea n time, the ITBP has mooted a proposal for purchasing the required land from ano ther Tea Estate, namely the respondent No.5. Be it also stated here that its pro posal with the other Tea Estate, namely, Ghooronia TE has also failed. 13. Mr. S. Shyam, learned counsel representing the petitioner in his elabora te argument referring to the aforesaid facts involved in the case, submitted tha t the respondent ITBPF cannot at its sweet will abandon the promise made out to the petitioner in the manner and method in which the same has been done. Referri ng to the decisions reported in (1985) 4 SCC 369 (Union of India and others Vs G odfrey Philips India Ltd.) and 2006(3) GLT 586 (Union of India and ors. vs. Sree Ganapati Rolling Mills(P) Ltd. and Ors) he submitted that the proposed action o f the ITBPF to go for another land belonging to the respondent No.5 in WP(C) No. 1033/2013 is illegal, arbitrary and hit by the principles of Promissory Estoppe l. He also submitted that as per the provisions of the Indian Contract Act, the offer made by the ITBPF to the petitioner having been accepted, it was a conclud ed contract required to be implemented by the ITBPF. He also submitted that the land now proposed to be purchased from the other Tea Estate i.e. the respondent No.5 is not conducive for the purpose of setting up of the ITBPF Unit and that t he same will also involve much more expenditure than the expenditure the ITBPF w ould have incurred by purchasing the land from the petitioner. Emphasising the p urported element of public interest involved in such transactions, he also submi tted that considering all the aspects of the matter, proposed action of the ITBP F to abandon the petitioner’s land is required to be interfered with exercising writ jurisdiction. 14. Countering the above argument, Ms. R. Bora, learned CGC submitted that t he writ petitions are misconceived. Referring to the aforesaid documents she sub mitted that there was no promise made out to the petitioner entitling it to invo ke the principle of Promissory Estoppel. She submitted that it is for the ITBPF authorities to decide as to which plot of land is suitable for setting up of the Unit and not for the petitioner to dictate the terms. She has also placed relia nce on two decisions of the Apex Court reported in (1979) 2 SCC 409 (M/s. Motila l Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and others) and (200 4) 6 SCC 465 (State of Punjab Vs. Nestle India Ltd and another). 15. Mr. B. Sarma, learned counsel representing the newly impleaded responden t No.6 in WP(C) No. 1033/2013, in his argument submitted that in case of materia lizing the proposal for purchasing the land belonging to the respondent No.5, th e interest of the workers will have to be protected. 16. I have given my anxious consideration to the submissions made by the lea rned counsel for the parties and have also perused the entire materials on recor ds. 17. Needless to say that to invoke the doctrine of Promissory Estoppel, clea r foundation must be laid in the petition itself by the party invoking the said doctrine. In Sharma Transport Vs. Govt. of Andhra Pradesh reported in (2002) 2 S CC 188 the Supreme Court held, (cid:28)there is preponderance of judicial opinion that to invoke the doctrine of promissory estoppel, clear, sound and positive foundat ion must be laid in the petition itself by the party invoking the doctrine and t hat bald expression, without any supporting material, to the effect that the doc trine is attracted because the party invoking the doctrine has altered its posit ion relying on the assurance of the Government would not be sufficient to press into aid the doctrine. The same principle has been reiterated in Bannari Amman S ugars Ltd (2005) 1 SCC 625. (cid:29) 18. In the instant case, the whole basis of foundation of the petitioner to invoke the principle of promissory estoppel so as to bind the ITBPF to perform i ts purported promise made out to it is the Annecxure-1, 2 and 3 letters dated 4. 5.2007, 5.5.2007 and 7.5.2007, referred to above. By the first letter dated 4.5. 2007, the Commandant 9th Bn. ITBPF only wanted to know as to whether the petitio ner was interested in selling the land to the ITBPF. No promise was made out to purchase the land. In response to the said letter, the petitioner Tea Estate whi le conveying its intention to sell the land, had furnished the details of the la nd and as to how the same would be convenient for setting up of the particular u nit. Thereafter, the Commandant, 9th Bn. ITBPF requested the Deputy Commissioner , Dibrugarh to allow permission to purchase the land. That by itself cannot be s aid to be a concluded contract by and between the petitioner and the ITBPF, more so, whether further action in the matter including the approval of the Governme nt in the Revenue Department was to be conveyed and materialized. Although, cert ain correspondences had been made regarding granting of approval but it appears that there was some disputes regarding payment of dues to the Govt. by way of st amp duty and registration fee. It was conveyed that since the ITBPF is a Govt. of India entity, it is 19. not required to pay stamp duty and registration fee. In the mean time, dispute a rose by and between the petitioner and the respondent No.4 in WP(C) no. 2329/201 1 and it appears that the Govt. itself had stayed the said sale permission. Prio r to that the Directorate General, ITBPF, New Delhi by its Annexure-12 letter da ted 23.11.2009 wanted to know from the Deputy Commissioner, Dibrugarh as to the suitability of the plots of land offered by the petitioner Tea Estate and Ghooro nia Tea Estate. In the letter, it was clearly spelt out that the ITBPF would not like unnecessary litigation or opposition from any quarter. The said letter was written in view of the objection raised by the respondent No. 4. Even the Anenx ure-14 minutes of the meeting held on 10/02/2010 with the participation of the p roprietors of both the Tea Estates i.e. the petitioner’s Tea Estate and Ghooroni a Tea Estate, it was agreed that in the event of purchase being materialized, th e rights of employees of both the Tea Estates would be protected. Thus, it was even at that stage, the proposal was not materialized so as to bind the ITBPF to purchase the land belonging to the petitioner invoking the provisions of Princi ples of Promissory Estoppel. It was only on 30.9.2010, the respondent No.4 had w ithdrawn its objection in respect of sale of land by the petitioner to the ITBPF and that too writing a letter to the Revenue Minister without endorsing any cop y to any one. 20. This being the position, there is no element of any promise being made o ut to the petitioner to purchase its land so as to invoke the principles of Prom issory Estoppel. In the counter affidavit filed by the respondents, this aspect of the matter has been specifically dealt with. 21. In Sree Ganapati Rolling Mills(P) Ltd.(Supra), the particular decision of the Cabinet was bound to be implemented by each and every wing of the Governm ent and was not open to any individual department either to modify or act contra ry to the decision so taken by the Cabinet. It was in that context, the principl es of promissory estoppel was invoked. As has been discussed in the said decisio n to invoke the doctrine of promissory estoppel, clear, sound positive expressio n must be laid in the petition itself by the party invoking the said doctrine. A s discussed above, apart from the said 3 letters which cannot be said to be the foundation towards invoking the doctrine of promissory estoppel, nothing could b e found in the writ petition so as to constitute, not to speak of a basic founda tion but a minimum foundation to invoke the doctrine of promissory estoppel. Thu s, this case is of no help to the petitioner. In Godfrey Philips India Ltd (Supra), the apex Court was concerned with 22. exemption from Excise Duty to assesses. In this regard, representation was made out by the Central Board of Excise and Customs with approval of the Central Gove rnment. When the said representation was within the competence of the Govt. /Boa rd and the assesses acted upon such representation, it was held that on facts, G overnment and the Board were bound by the promissory estoppel to grant the exemp tion untill its revocation. It was held that the Government was not exempted fr om its liability to carry out the particular representation made by its. While t here is no doubt that the proposition of the doctrine equally bind the Governmen t but the present case cannot be said to be a case of making out a definite rep resentation, acting on it and changing of position by the petitioner based on th e promise made out by the ITBPF. The doctrine of promissory estoppel is well established in the administr 23. ative law of India. It represents a principle evolved by equity to avoid injusti ce and, though commonly named promissory estoppel, it is neither in the realm of contract or in the realm of estoppel. The basis of this doctrine is the interpo sition of equity which has always, true to its form, stepped in to mitigate the rigour of strict law. The principle of promissory estoppel is that when one part y has by his conduct made to the other a clear and unequivocal promise or repres entation which is intended to create legal relation or effect a legal relationsh ip arise in the future knowing or intending that it would be acted upon by the o ther party to whom the promise or representation is made out and it is in fact s o acted upon by the other party, the promise or representation would be binding on other parties and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so, having regard to the dealings which have tak en place between the parties. These factors so as to constitute promissory estop pel are absent in the instant case. In M/s. Motilal Padampat Sugar Mills (Supra), the Apex Court while holdi 24. ng that the doctrine of promissory estoppel also applies to Government or State in whichever capacity it acts, also held that the Government will not be bound if it can show that equity lies in its favour. In the given facts and circumstan ces of the case, the following observations made in the said judgement is signif icant to note. (cid:28) & & & & &.The doctrine of promissory estoppel is a significant judic ial contribution in that direction. But it is necessary to point out that since the doctrine of promissory estoppel is an equitable doctrine, it must yield when the equity so requires. If it can be shown by then Government that having regar d to the facts as they have transpired, it would be inequitable to hold the Gove rnment to the promise made by it, the Court would not raise an equity in favour of the promisee and enforce the promise against the Government. The doctrine of promissory estoppel would be displaced in such a case because, on the facts, equ ity would not require that the Government should be held bound by the promise ma de by it & & & & &.. (cid:29). 25. In Nestle India Ltd. (Supra), the Apex Court dealing with the doctrine o f promissory estoppel observed that since the same is an equitable doctrine, it must yield when the equity so requires. But it is only if the Court is satisfied , on proper and adequate material placed by the Government, that overriding publ ic interest requires that the Government should not be held bound by the promise but should be free to act unfettered by it, that the Court would refuse to enfo rce the promise against the Government. No representation can be enforced which is prohibited by law in the sense that the person or authority making the repres entation or promise must have the power to carry out the promise. Even assuming that the 9th Bn. ITBFP had made a semblance promise to the petitioner, it is not the final authority in the matter, the same cannot bind the Government of India in the Ministry of Home Affairs. This is not say that the said Commandant has m ade out any promise to purchase the land and that acting on the said promise, th e petitioner has altered his position. As noted above, even in the meeting held on 10/02/2010, which included t 26. he present petitioner and the representative of Ghooronia Tea Estate, no finali ty to the matter was indicated, not to speak of any promise made out to the peti tioner. There being no clear and unequivocal promise knowing and intending that it would be acted upon by the promise i.e. by the petitioner requiring to act up on the promisee, so that it would be inequitable to allow the ITBPF to go back o f the promise, it cannot be said to be a case of forming well known pre-conditio ns for the operation of the doctrine of promissory estoppel. 27. So far as the claim of the newly added respondent No. 6 for protection o f the interest of its members is concerned, same cannot be gone into collaterall y in this proceeding. We are not concerned in this proceeding as to whether the ITBPF should be permitted to purchase the land belonging to the respondent No.5 or not. This proceeding is only in respect of the claim of the petitioner that t he ITBPF is estopped on the doctrine of promissory estoppel to abandon the promi se made out to the petitioner in respect of purchase of its land about which det ailed discussions have been made above. 28. ons and accordingly they are dismissed. Interim order stands vacated. For all the aforesaid reasons I do not find any merit in the writ petiti 29. There shall be no order as to costs.