Bombay High Court
Kamat Holiday Resorts Pvt. Ltd. vs Union Of India (Uoi) And Ors. on 28 April, 1989
Equivalent citations: 1989(2)BOMCR261, (1989)91BOMLR587
JUDGMENT V.S. Kotwal, J.
1. Greenery, pleasant environment, sea breeze and gay relaxed mood furnish the setting for an ideal health and holiday resort. One such location is discovered at Daman which the authorities desired to develop into a prosperous tourists attraction so as to increase the flow of tourists and to accelerate the growth of tourism. It is with that object that the authorities concerned desired to have a restaurant to cater the needs of tourists in all respects and in pursuance of which tender were invited from the various parties interested in the project. The petitioners herein are Private Limited Company Incorporated under the provisions of the Companies Act and are dealing in the business of running and managing hotels, restaurants and holiday resorts at various places through out the Territory of India. The petitioners who have a chain of project such projects at different places intended to accept and undertake this project also and therefore filled in the tender in response to the said notice that was published in various newspapers by the Collector of Daman on or about May 19,1988. They also produced the relevant data to establish their impressive credentials in that field. The Administration examined all the relevant features and felt that the petitioners would be the most suitable party to be entrusted with that project. Certain correspondence exchanged between the parties and ultimately it culminated in executing the memorandum of lease between the parties. The said deed of lease was executed on June 7,1988 observing all the legal formalities. The lease rent was fixed as Rs. 16,000/- per year with the tenure being for a period of five years commencing from September 1988 and the terms and stipulations in that behalf were incorporated in the said document. If the petitioners proved their worth then the authorities could extend the said period. The project was to be utilised only as the restaurant including the ancillary features such as Bar, Recreation Centre, Club house, Retiring Rooms, Staff Quarters etc. The lease rent for the period between 16th of June, 1988 to 15th of June, 1989 was paid by the petitioners in pursuance of this agreement on or about 16th of June, 1988.
2. Every thing appears to have proceeded smoothly. Thus some correspondence was exchanged between the parties and full co-operation was extended by both. Various term as required for running the restaurant were granted in favour of the petitioners for which they had to spend certain amounts such as licence fees, etc. The petitioners were put in actual and physical possession of the land which admeasures 16,000 sq metres situated at Village Marwad bearing Survey No. 2/1 of the said Village which is the sub-District of Daman. The petitioners then went into action in all seriousness so as to complete the project within the stipulated period on account of which they had to spend quit a sizable and substantial amount. By mutual agreement the time for setting up of the proposed restaurant was extended from September 1988 to November 1988 whereas the other features would be completed in due course. All the formalities by that time were completed and all the necessary permissions were granted by the concerned authorities in different fields. The construction tax of a substantial amount was also paid by them and in fact electricity and water connections. The PWD Department was also moved from whom certain permissions were obtained regarding the water connections. The Tourism Department through the Directorate was moved for registration as a hotel-keeper in respect of the proposed restaurant which was to be named as "Kamat's Daman Hotel". Instructions were issued by the Director of Tourism and the other authorities on the application of the petitioners to demarcate with the appropriate fencing the land and the construction which was more necessary because of the existing park known as "Devka park" adjacent to this land. The requisite licences for running the liquor Bar were also obtained from the Excise Department some time in October, 1988. Thus by the middle of September 1988 substantial work was effected by the petitioners in setting up the proposed restaurant on which count substantial amount was then invested.
3. However, it came as almost a rude shock to the petitioners when on 23rd of September, 1988 an Officer of the Forest Department of visiting the site orally directed the Executive Director of the petitioners company to stop the construction wark on the ground that the land belonged to the Department of Forest. However, this was not the end of the episode because it is on October 11,1988 that the petitioners again with the utmost surprise received a "stop work notice" from the then Collector of Daman ordering and directing the petitioners to forthwith stop the construction of the said project with immediate effect which resulted into inevitable consequence of the petitioners being compelled to stop the construction work midstream. In between, the Snack Bar which was already constructed was allowed to function which also came to be stopped by further notice issued on 15th of December, 1988. Everything thus came to a standstill since all the requests and representations by the petitioners found no favour with the Collector.
4. It is on that count that the petitioners felt agitated and thus raised a protest and challenge to the said order dated October 11,1988 of the third respondent Collector by approaching this Court by this petition under Article 226 of the Constitution of India under which the validity and legality of the said order is under challenge on various counts. The first respondent is the Union of India, the a second is the Administrator of Diu, Daman and Goa, the third being the Collector who issued the stop work notice and the fourth being the Deputy Conservator of Forests.
5. Shri Zaiwalla, the learned Counsel appearing on behalf of the petitioners, canvassed multifold contentions. In substance he made a grievance that in the first instance the Collector or any other person had no authority to issue the stop work notice when the matter had gone ahead too long and the construction of the project had substantially progressed. He also submitted that the lease was executed after observing all formalities and no illegality or deficiency is alleged to have been committed in any respect. According to him, the Collector had full authority to initiate the proceeding for that project. He also challenged the contention raised on behalf of the Department about the applicability of the provisions of the Indian Forest Act as also of the Forest (Conservation)Act, 1980 and contended that the said provisions have no application in view of the peculiar features annexed to this proceeding. He very much pressed into service the doctrine of promissory estoppel and expanding the said doctrine in the context of various features available on record submitted that the respondents are now estopped from going back on the said agreement and consequently is would affect the validity of the impugned notice. He also relied on certain ratios in that field. To counter these contentions Shri Mehta, the learned Counsel appearing on behalf of all the respondents, submitted that basically the Collector had no authority or jurisdiction to enter into any agreement with the petitioners. He further contended that in any event prior approval of the Central Government is the condition precedent in the absence of which the Collector's order becomes non est. He very much placed reliance on the provisions of the Indian Forest Act and also on the Forest (Conservation) Act and contended that the impugned order of the Collector directly offends the prohibition as prescribed in section 2 of the Forest (Conservation) Act since it has been done without prior sanction of the Central Government, especially when the land in question has been notified as reserve forest under under section 4 of the Indian Forest Act. He further contended that the doctrine of promissory estoppel has no application to the notice in question . He also sought to raise an objection at the threshold about the maintainability of the writ petition as according to him this being the outcome of a contract no writ petition would lie in case of breach of a contract and on that count also the doctrine of promissory estoppel would not be attracted since it does not restrict to the field of equitable relief but arises out of contractual obligation. He also submitted that since the order offends the provisions of law which is in force in the first instance the order does not create any interest or right in favour of the petitioners and alternatively on the ground of public interest the Government should not be bound by such a promise assuming that it was so given to the petitioners as reflected through the deed of lease.
6. It may be observed at this juncture itself that initially an affidavit was filed by Shri R.S. Rao who is the Assistant Conservator of Forest in which it has been clarified as to why the contention was raised about the Collector's order being invalid. It is specifically stated that the stop work notice is in accordance with the Forest (Conservation) Act, Indian Forest Act, Tree Preservation Act and also Central Government's directives that there should be no construction within 500 metres zone from the high tide and it is also reflected that the Collector had not taken prior approval of the competent authority. It was also indicated that some trees are standing on the land in question and therefore there is a fear of damage to the said trees. It was further indicated in that affidavit that the lease deed was also the product of mistake of fact. A further affidavit then came to be filed during the course of the arguments though by then the arguments on behalf of the petitioners were over. The said affidavit is filed by one Shri Harish C. Dhawan, who is working as Deputy Conservator of Forests and the said affidavit commences with the recitals that the earlier affidavit filed by Shri Rao was "without any legal advice" certain documents were annexed to this affidavit suggesting the issuance of notification under section 4 of the Indian Forest Act, certain correspondence and direction issued from one authority to another and also some observations of the Supreme Court in another matter. On the basis of this affidavit Shri Mehta, the learned Counsel, predominantly tried to submit that once the forest is declared as reserved forest then the same to be ceased as a reserved forest, cannot be done by the Collector without the prior authority by the Central Government and this is essentially based on section 2 sub-clause (1) of the Forest (Conservation) Act. Apart from the belated stage at which this additional affidavit was filed, the petitioners disputed all the contentions reflected therein and what is of more importance is, as indicated earlier , that the said officer under the second affidavit almost doubted the credibility of the first affidavit on the spacious ground that it was filed without any legal assistance though as contended by Shri Zaiwalla with some justification, little realising that the first affidavit also related to the so-called violations of various statutes which normally could not have been without any legal assistance.
7. This short resume projects the factual structure as also the thrust of the controversy, the finer shades of which can now be elaborated in the context of the material on record and the provisions of the various statutes.
8. The Goa, Daman and Diu Land Revenue Code, 1968 ('the Code') is an Act to consolidate and to amend the law relating to land and land revenue in the Union Territory of Goa, Daman and Diu. Similarly the Rules under that Code issued by the Revenue Department of the Government of Goa , Daman and Diu , which are styled as the Goa, Daman and Diu Land Revenue (Disposal of Government Lands ) Rules , 1971 ('the Rules) are formulated in that behalf. There is no controversy, that the Code and Rules thereunder are in force and are applicable to all such lands at Daman. Shri Zaiwalla, the learned Counsel for the petitioners, has very much relied on certain provisions of Code and Rules to substantiate his claim about the authority of the Collector while Shri Mehta, the learned Counsel for the respondents, makes strenuous endeavour to counter the proposition. However, inspite of that exercise, some of the provisions of the Code and the Rules must have the necessary impact on the controversy which impact could not even be diluted much less wiped out by the arguments canvassed by Shri Mehta, the learned Counsel, for the respondents. A short reference to the relevant provisions under these two documents would highlight the said features. Section 16 of the Code relates to the rights to the trees and other natural products in such forest area to vest in Central Government. Section 21 in that chapter is quite relevant which is under the head of 'Grant of Land' and which reads as ---
"(1) Subject to the rules made in this behalf, the Government may grant land belonging to or vesting in the Central Government for agriculture purposes or for non-agricultural purposes as may be specified in the order of grant."
Sub-clause (2) of this section relates to the details while making such grant such as occupancy price, other conditions if any, penalty for breach of conditions, etc. As is apparent the Government has power to grant such land which could be vesting in the Central Government. Section 26 is the corresponding provision regarding the powers of the Collector to grant lease and it stipulates as ---
"It shall be lawful for the Collector at any time to lease under grant or contract any unoccupied land to any person, for such purpose and on such conditions as he may, subject to rules made by the Government in this behalf, determine........"
It further prescribes that the lease shall be valid only for the period so mentioned and the grantee is to be called as a "Government lessee" in respect of the land so granted.
9. Rule 33 of the said Rules prominently figures in this structure of the controversy. It is under the heading reads 'D' as ---
"Grant of land in lease-hold rights for any non-agricultural purpose."
Rule 33 relates to temporary leases and reads as ---
"Subject to the provisions of Rule 35 and to any general or special orders of Government, unoccupied land may be disposed of by the Collector in leasehold rights under section 26 by public auction for any non-agricultural purpose for a period not exceeding five years on such terms and conditions as he may annex to the grant."
Since there is reference to Rule 35 and more since Shri Mehta, the learned Counsel, for the respondents relied on that it would be worthwhile to reproduce Rule 35 also. It falls under heading 'E' other matter" and it relates to "disposal of small strips of land" and it reads as---
"When any small strip of land vesting in the Government adjacent to an occupied un alienated building site cannot reasonably be disposed of as a separate site, the Collector may not withstanding anything to the contrary contained in any of these rules, grant such strip to the holder of such site on the same tenure on which he holds that site, if he agrees to pay........"
and the rules then provides for the assessment of rent and price or premium which is to be fixed by the Collector as deemed adequate.
9. The combined reading of these provisions under the Code and the rules makes an integrated picture which does support the contention raised by Shri Zaiwalla, the learned Counsel for the petitioners. As stated section 21 of the Code relates to the grant of land which cannot be done by the Central Government and the user can be for non- agricultural purpose. Section 26 of the Code invests power in the Collector to grant lease in respect of any unoccupied land. Rule 33 relates to temporary leases under which lease- hold rights can be created by the Collector. Under section 26 of the Code the user here also being for non-agricultural purpose. The land in question vests in Central Government and thus grant of the said land can be effected by the Central Government whereas the lease-hold rights in respect of such lands can validly be created by the Collectors under the Rules and the user can also be for non-agricultural purpose. This serves as strong pointer that the Collector has full authority under the Code and the Rules to create lease-hold rights in respect of the lands vesting in the Central Government. The only limitation being that is to be a temporary lease in the sense that it can extend only upto a period or five years. All the stipulations under the Code and the Rules are, therefore, satisfied because the lands vest in the Central Government, lease-hold rights are created by the Collector under the formal document being the deed of lease executed after observing all the formalities and the land is being to be utilised for non-agricultural purpose and the duration thereof is for five years. The tenders were invited by the Collector, the approval was given by the Collector and deed of lease is signed by the Collector though the details of the said document would be more elaborately discussed in the context of other plank of the petitioner's claim about the applicability of doctrine of promissory estoppel. Shri Mehta, the learned Counsel, tried to submit that Rule 33 itself prescribes that it is subject to the provisions contained in Rule 35 and according to him, therefore, Rule 35 overrides Rule 33. Extending this submission it was further contended by the learned Counsel that the Collector would not have any power basically under Rule 33 so as to create any lease hold rights. For obvious reasons the learned Counsel had to put much strain on this argument which equally cannot be accepted as rightly contended by Shri Zaiwalla, the learned Counsel for the petitioner. Though it is indicated in Rule 3 that in subject to Rule 35, still the operation on these two rules fall on different tracks. Rule 33 is the basic rule regarding temporary leases which can be lawfully created by the Collector under section 26 of the Code, While Rule 35 has only a restrictive field within its campus and the distinction is manifest. Under Rule 33 a temporary lease can be created for non-agricultural purpose for a period not exceeding five years and the creation of such a lease for disposal of the Government land can be done by Collector only by public auction. The necessity of a public auction is excluded from the operation of Rule 35 under which the Collector in his discretion on his own can grant any such land and further such land itself has a restriction in the sense that it is to be a small strip of land which is adjacent to an occupied unalienated building site which strip of land cannot be reasonably disposed of as a separate site and obviously it is because of this handicap attached to that small strip of land that the necessity of public auction is lifted and the Collector can dispose of the same in his discretion so that it can be granted to the holder of such site on the same venture on which he holds that site provided he agrees to pay the rent and premium which is to be determined by the collector in tune with circumstances. Therefore, the combined reading of these two rules does not even inferentially or remotely suggest that Rule 35 wipes out the effect of Rule 33. On the contrary the prescription under Rule 33 is kept intact under which the collector has full authority in law to create lease hold rights under section 26 of Code in favour of any person for non- agricultural purposes though for a period not exceeding five years and this he has to do only by public auction. In contrast under Rule 35 because of the apparent handicap in respect of a small strip of land which is adjacent to a building site which strip cannot be disposed of independently that Collector can give it to the same person who holds site without there being any public auction. The contention raised by Shri Mehta, the learned counsel, in that behalf is obviously devoid of any substance. The Collector's authority in that field, therefore, is well established and well recognized.
10. Shri Mehta, the learned Counsel for the respondents, then raised a contention which is based on the provisions contained in the Forest (Conservation) Act of 1980 and the Indian Forest Act of 1927. The first of these two Acts is a short enactment which has been amended though to a limited extend in 1987. In substance the argument is to the effect that by reason of section 4 of the Indian Forest Act the land in question falls in reserved in respect of which notification has been issued by the State Government under section 4 of the said Act. This concept of a reserved forest as notified under that provision is transplanted in section 2 of the Forest (Conservation) Act on basis of which it is further argued that the Collector has no authority to pass any order the effect of which is to make the reserved forest ceasing its characteristic as such. This argument is quite vigorously countered by Shri Zaiwalla, the learned Counsel for the petitioners, and according to him, it is obviously a mis-construction Shri Mehta, the learned Counsel, also tried to submit that case would equally fall in the clutches of sub-clause (2) of section 2 of the Forest (Conservation) Act which is also contested on behalf of the petitioners.
11. To understand the thrust of the rival contentions it is necessary to refer to these two provisions in these two statutes. Chapter 2 of the Indian Forest Act relates to reserved forests. Under section 3 the State Government has a right to constitute a reserved forest under the Act. Section 4 plays an important part in that controversy as relied upon by Shri Mehta, the learned Counsel for the respondents. Under that provision the State Government is enjoined to issued a notification whenever it has been decided to constitute any land a reserved forest so as to declare that it has been so decided and specify all the details and also to appoint any officer known as Forest Settlement Officer to inquire into and determine the rights existing in favour of any person. The subsequent sections relate to the powers of such Settlement Officer in the context of the rights of various persons over the lands in question. Section 5 has some relevance which relates to Bar of Bar of accrual of forest rights. It prescribes that after the issuance of notification under section 4 no right shall be acquired in the land mentioned in that notification to which however some exceptions are carved out such as except by succession or under a grant or contract in writing made or entered into by or on behalf of the Government or some other person in whom such rights are vested and it further prescribes that no fresh clearings for cultivation or any other purpose shall be made in such land except in accordance with such rules. Thus the acquisition of right over such land is barred but bar does not apply if it is under a grant or a contract or by succession. Section 20 relates to the final notification under which the reserved forest is declared and it prescribes that after happening of certain events as mentioned therein the State Government has to publish a notification specifying the boundaries and limits of the forest which is to be reserved and the same is then declared to be reserved from the date fixed in that notification and under sub-clause (2) it is prescribed that from the date so fixed in the notification such forest shall be deemed to be a reserve forest. According to Shri Mehta, the learned Counsel, moment the first notification under section 4 is issued even qua the intention to treat it is reserved forest and even before final notification under section 20 is issued declaring it to be reserved forest, the land can be treated as reserved forest or at least earmarked as reserved forest because from that moment itself certain limitations occurred and the rights of the parties are extinguished. The next plank of his argument relates to the provisions contained in section 2 of the Forest (Conservation) Act which prescribes as:
Section 2 : "Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing ---
(i) that any reserved forest (within the meaning of the expression "reserved forest" in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;
(ii) that any forest land or any portion thereof may be used for any non-forest purpose.
Explanation---For the purposes of this section "non-forest purposes "means breaking up or clearing of any forest land or portion thereto for any purpose other than reafforestation".
The argument therefore is to effect that the case would fall under sub-clause (1) and dominant reliance is placed only on that clause suggesting that since in the instant case notification regarding the intention of declaration about the reserved forest under section 4 of the Indian Forest Act is issued by the State Government, the said land in question becomes reserved forest. Transplanting this concept in section 2 of the Forest (Conservation) Act, it is further submitted that no State Government or other authority without the prior approval of the Central Government can order under which the reserved forest as contemplated under section 4 of the Indian Forest Act shall cease to be reserved. Consequently, therefore, since the Collector had not taken prior approval of the Central Government for de-reserving the said forest in which the land falls, it means that the order so de-reserving the forest which has already been reserved under the section 4 of the Act become illegal for want to prior approval of the Central Government. If that be so, then contends Shri Mehta that the Collector's order granting permission virtually amounts to de-reserving the forest without authority and therefore the order is un-sustainable and without authority. It is however difficult to subscribe to this view.
12. It may be observed at this juncture as is relevant in this context that Daman falls in the category of Union Territories as contemplated by Part VIII of the Constitution. Article 239, relates to the administration of Union Territories prescribing that an Union Territory shall be administered by the President acting through an administrator to be appointed by him with such designation as he may specify. Clause (2) stipulates that the President may appoint the Governor of a State as the administrator of an adjoining Union Territory, and where a Governor is so appointed, he shall exercise his functions as such administrator independently of his Council of Ministers. Shri Zaiwalla, the learned Counsel, submits that the interpretation sought to be placed by Shri Mehta, the learned Counsel, on the provisions of section 2 would reduce to an anomaly and would create most irrational result. The Forest (Conservation) Act, 1980 on its plain reading can have no application to the Territories administered by the Central Government. Obviously the object of section 2 of the Forest (Conservation) Act is to give an over all power reserved to Central Government to supervise the acts of the State Government in respect of the conservation of the Forest. Since all acts and orders in the Union Territory are that of Central Government, there can be no question of Central Government passing an order with prior approval of the Central Government itself. The Indian Forest Act, 1927 and the Forest (Conservation) Act, 1980 both are Central Acts and both extend to the whole of India including the Territories administered by the Central Government, that is, Daman and Diu. When applying the aforesaid Acts to the Union Territories the expression "State", "the State Government" in the said Acts will have to be substituted as provided in General Clauses Act unless of course such substitution or application of General Clauses Act is repugnant in the context. The ratio in Goa Sampling Employees. Association v. General Superintendence Co. of India, , would support this proposition. The relevant definitions of the General Clauses Act are contained in section 3(58) and 3(60). These definitions are exhaustively considered by the Supreme Court in Goa Sampling case cited (supra). Section 3 serves as a preamble and defines under several sub-clauses with a qualification that unless there is anything repugnant in the subject or context. The State is defined in sub-section (58) as meaning a State specified in the first schedule of the Constitution and shall include as Union Territory. The State Government defined in sub -clause (60) meaning that in a State it is the Governor and in Union Territory it is the Central Government. Applying these definitions to section 2 of the Forest (Conservation) Act it is manifestly demonstrated that if the word "Union Territory" is substituted for the word "State " and "Central Government" is substituted for the word "State Government", section 2 of the Forest (Conservation) Act practically becomes meaningless. This can be reaffirmed by reading section 2(i) of the said Act with section 27 of the Indian Forest Act and applying these definitions in the General Clauses Act and transplanting those in the said two provisions of the said two Acts a certain consequence would ensue. Thus section 27(1) of the Indian Forest Act would enunciate that the "Central Government" may by notification in Official Gazette direct that from the date fixed by such notification that any forest or any portion thereof reserved under this Act shall cease to be a reserved forest. On application of the General Clauses Act and transplanting the said concept in the said Act section 2(i) of the Forest (Conservation) Act would read to the effect that notwithstanding anything contained in any other law for time being in force in a Union Territory no Central Government or other authority shall make, except with the prior approval of the Central Government, any order directing that any "reserved forest" (within the meaning of the expression "reserved forest" in any law for the time being in force in that State) or any portion thereof shall cease to be reserved.
A plain reading of section 2 of the Forest (Conservation) Act after substituting the words "State" and "State Government" as permissible under the General Clauses Act would make section 2 totally repugnant both to the subject and to the context in the said Act. The definition of General Clauses Act therefore cannot replace the words "State" and the "State Government" in the said section. This itself serves as pointer that Forest (Conservation) Act can have no application where the question of forest conservation arises in the Union Territory administered by the Central Government. The criterion of Union Territory under Article 239 of the Constitution was considered in the context of the provisions of the General Clauses Act in Goa Sampling case cited supra. Section 3(8) refer to the Central Government and it would mean the President and shall include in relation to the administration of the Union Territory the Administrator thereof under the authority given to him under Article 239. Section 3(6) relates to the State Government and it would mean in a State, the Governor, and in a Union Territory the Central Government. Section 3(62-A) suggests the expression "Union Territory" would mean Union Territory specified in the first schedule of the Constitution which would include any other Territory comprised within the Territory of India. The ratio in Goa sampling case was no doubt in context of the Industrial Disputes Act and therein it was observed that no repugnancy was brought to the notice and therefore the expression assigned in General Clauses Act would be applicable. However, in contrast, as discussed earlier, the repugnancy in the instant case become manifest.
It would thus indicate that in section 2 of the Forest (Conservation) Act the words "State Government or other authority" can in the context only mean State Government to or other authority authorised by the State Government to act which would be on the plain reading of the provision being in consonance with the context, object, legislative intent and the user of particular terminology. Even in this context if it is attempted to apply to General Clauses Act the section would reduce itself almost to irrational meaning suggesting that no Central Government or any authority authorised by the Central Government shall make any order except with the prior approval of the Central Government.
Section 2 of the Forest (Conservation) Act so tested in its own context or even analysed with reference to section 27 of the Indian Forest Act would clearly show that the Forest (Conservation) Act is only a power reserved to Central Government to supervise the acts of the State Government in respect to the forest. Obviously the Central Government cannot supervise its own acts. Consequently the Forest (Conservation) Act and particular section 2(i) which is so relied upon would have no application in the Union Territory.
In the instant case, as rightly submitted by Shri Zaiwalla, the learned Counsel, the lease deed has been executed by the Collector exercising the executive powers of the Union under Article 299 of the Constitution of India and section 55 of the Government of Union Territories Act.
All these contentions raised by Shri Zaiwalla, the learned Counsel for the petitioners, are obviously unassailable. The land in question admittedly falls in the Union Territory and consequently for the reasons assigned the impugned order which though formally issued by the Collector, who had full authority, would cover the Central Government itself and therefore assuming that provisions of section 4 of the Indian Forest Act are attracted still the order granting lease by the Collector would not require prior approval of the Central Government itself. The main plank of the contention raised by Shri Mehta, therefore, is knocked out.
13. No doubt Shri Mehta, the learned Counsel, tried to place reliance on certain observations of the Supreme Court in Writ Petition No. 1061 of 1982 decided on 8th of February, 1989 in the matter of Banwasi Seva Ashram v. State of U.P.. It pertained to a Thermal Power Project for which the land was sought to be acquired. Some land appears to have been declared and notification issued under section 4 of the Indian Forest Act while in respect of other final notification under section 20 was issued. The lands notified as reserved forest under section 20 were excluded from the purview of the writ petition. It is observed during the course of the judgment that the lands which are subjected to the Notification under section 4 of the Forest Act also come within the purview of section 2 of the Forest (Conservation) Act and would, therefore, be necessary to obtain appropriate clearance under that Act from the appropriate authority. Shri Mehta, learned Counsel, obviously tried to take support to his argument from these observations. Shri Zaiwalla, the learned Counsel, however, submitted that these observations do not contain any reasonable detailed discussion. However, for this Court that aspect would not be permissible. Nonetheless those observations appear to have been made in the facts of that case and the glaring feature is that it pertained to an order passed by the State Government and certainly not by the Central Government and it is on that count it was felt that before passing an order under section 2 of the Forest (Conservation) Act prior approval of Central Government was necessary. For the reasons already assigned this ratio and the observations, with respect, may not apply to the facts of the instant case.
14. Shri Zaiwalla, the learned Counsel, no doubt tried to submit that mere issuance of notification under section 4 of the Indian Forest Act would not amount to declaring the area as reserved forest because the process gets finality only after notification under section 20 is issued and also from the date that is mentioned in that notification. According to him, therefore, there may not arise any question of dereservation of the forest because in the instant case it is an accepted position as conceded on behalf of the respondents that no notification under section 20 has yet been issued. According to Shri Zaiwalla, the learned Counsel, therefore, the provisions of section 2 of the Forest (Conservation) Act thus would not be applicable at all. No doubt the thrust of the argument cannot be lightly brushed aside having regard to the scheme of Chapter II of the Indian Forest Act which contains sections 4 and 20, because section 4 indicates the preliminary stage about the declaration of the intention while it gets the final mould only when the notification under section 20 is issued and it is from that date as mentioned in the notification that is becomes a reserved forest. However, the observations of the Supreme Court in Banwasi's case cited (supra) there is contrary indication that issuance of notification under section 4 of the Indian Forest Act would attract the provisions of section 2 of the Forest (Conservation) Act. However, without undermining the thrust of Shri Zaiwalla's contention, we need not go into the details of this aspect because Shri Zaiwalla's other contention deserves to be upheld as already discussed. Shri Zaiwalla, the learned Counsel, placed reliance in that behalf on some of the observations in the case of Bhagwan Sahai and another v. Divisional Forest Officer, Hazaribagh, A.I.R. (34)1947 Patna 264 where the learned Single Judge though not recording a positive findings till very strongly indicated the inclination in accepting a similar contention. The scheme of the Forest (Conservation) Act was considered suggesting that all these provisions relating to the reserved forest show that in order to constitute a reserved forest a particular procedure has to be followed, first a notification under section 4 is to be issued, then a further proclamation under section 6 to be followed by inquiry by the Forest Settlement Officer whereafter the final notification under section 20 declaring a particular forest as reserved forest is to be issued. The learned Judge ultimately observed that he was inclined to take the view that it is only the issue on the issue of the notification under section 20 of the Forest Act, a particular forest becomes a reserved forest as contemplated by the Forest Act. A forest does not become a reserved forest on the issue of the notification under section 4 though at that time new rights cease to accrue and the Government no doubt acquires certain rights over the forest in question, yet the forest does not become a reserved forest until a notification under section 20 is a issued. However, as stated, it is not necessary to adjudicate upon this issue in this proceeding in particular having regard to the observations of the Supreme Court Shri Zaiwalla, the learned Counsel, further submitted that even after notification under section 4 issued and even though it creates a Bar for approval of forest rights under section 5, still a grant or contract qua such rights in that forest even after notification under section 4 is carved out under section 5 and according to him, therefore, a grant issued in favour of the petitioners even after notification under section 4 would not jeopardise the right of the petitioner under said Act under this exception as carved out in section 5. The validity of this contention also cannot be lightly brushed aside though it is not necessary to finally adjudicate on that count.
15. Reference to the provision contained in section 27 of the Indian Forest Act is already made in the other context under which provision the State Government can by notification in the Official Gazette direct that any forest reserved under that act can cease to be a reserved forest from the date so fixed. The concept and definition "State Government" as per section 3(60) of the General Clauses Act would be required to be read if its application is accepted and in which case in an Union Territory it would be equated with Central Government. In view of the discussion already made on that topic Shri Zaiwalla's contention of reading section 2 of the Forest (Conservation) Act in the context of the section 27 of the Indian Forest Act would serve as pointer that the power to supervise the acts of the State Government in respect of the forest reserved to Central Government and that the Forest (Conservation) Act from that angle also would have no application in the Union Territory. Even if the word "State Government" are retained as they are in section 27 of the Indian Forest Act the situation would remain intact.
16. Shri Mehta, the learned Counsel, then made a further attempt to submit that the provisions of the Forest (Conservation) Act including section 2 would be applicable even to the Union Territory because the preamble in section 1 indicated that the said Act extends to the whole of India except the State of Jammu and Kashmir. Shri Zaiwalla, the learned Counsel, has rightly contested this proposition because according to him it amounts to over-simplification by merely saying that Act applies even to Union Territory. As already discussed in details the necessity to have prior approval of the Central Government under section 2 would not come into play in the instant case and this position would remain intact even on the premise that Act applies to all parts of India. Application of the Act is not the test but the construction of the section 2 is the crucial point.
17. Shri Mehta, the learned Counsel, also tried to place reliance on sub-clause (ii) of section 2 of the Forest (Conservation) Act though incidentally. That provision prescribes that unless there is a prior approval of the Central Government in order directing that any forest land or any portion thereof may be used for any non-forest purpose cannot be made and the concept of non forest purpose is contained in the Explanation suggesting that it amounts to breaking up or clearing of any forest land or portion thereto for any purpose other than reafforestation. For obvious reasons this provision would have no application having regard to the concept of non forest purpose under which initially there should be breaking up or clearing of any forest which is very lacking in this case and secondly such process of breaking up or clearing of any forest is to be for any purpose other than reafforestation. It is not seriously contended that there has been any process of breaking up or clearing of the forest and the purpose for such exercise is totally absent in the instant case. The amendment to this provision merely expands the scope of this explanation under which some other purposes are included which does not improve the case of the respondents because basically this provision would have no application. Shri Mehta, fairly conceded that the said expanded definition could not have any restrospective effect and thus not applicable to the facts of the instant case. No further debate or discussion is necessary on this point because Shri Mehta, the learned Counsel, for the respondents, has practically accepted that this provision would no application and he actually did not press this point much in favour of the respondents and it is for that reason that he placed more reliance on sub-clause (i) of section 2 which aspect we have to elaborately dealt with and concluded against the respondents. Therefore, neither of the clauses of section 2 of the act would be applicable .
18. De hors of all these features the other plank of the argument canvassed on behalf of the petitioners is not only more dominant but is almost unassailable and that is essentially based on the doctrine of the promissory estoppel. Shri Zaiwalla, the learned Counsel, relying on that doctrine vigorously submitted that having regarding to all the attendant facts and circumstances the said doctrine would obviously come into play since the respondents and the Government made positive representations so as to make the petitioners believe in the same and not only that but the petitioners actually acted on the same and if that be so, then the Government cannot be now allowed to go back on the said promise. This contention no doubt is countered by Shri Mehta, the learned Counsel, on the ground that the issue essentially arises out of contract and the doctrine would have no application since it is applicable only to the field of equities and secondly the circumstances do not justify such an inference and he also submitted that since it offends a particular provision of a statute it cannot have any operation. To understand and appreciate the controversy in that behalf a short catalogue of events would be necessary to serve as a backdrop.
19. It is an accepted position that the Department of Tourism is keen on encouraging the flow of tourists in Daman and wants to develop various spots including the land in question to attract such tourists and it is for that purpose that they themselves decided to have a good restaurant to cater the needs of the tourist at that spot because they themselves further realised that it was an ideal location. It is for the purpose that the said project was initiated. In pursuance thereof a tender notice was issued from the office of the collectors at Daman which was published in newspaper one being in the issue of Indian Express dated 19th of May, 1988. The issuance of such tender notice is accepted by the respondent, some features in that behalf are relevant. The first is that the notice itself mentions as the Administrator of Daman and Diu along with Office of the Collector at Daman. This notice is signed by the then Collector Shri Khan. The notice reads as---
"ADMINISTRATION OF DAMAN & DIU OFFICE OF THE COLLECTOR DAMAN TENDER NOTICE SEALED Tenders are invited by the Collector, Daman on behalf of the President of India so as to reach this office on or before 26/5/1988 at 3-00 p.m. for:
Bringing up a Restaurant in Daman to cater to the needs of the increased flow of tourists. The Parties should have a minimum experience of 15 years in hoteliering and they should be ready to invest their own money for starting Restaurant including the structures. The land will be leased for a period of five years only. The parties are also expected to have expertise in Continental, Chinese & Indian Food. The well-known names in the Industry will be given preference. The parties will be desired to bring the Restaurant in operation within 2 months from the date of acceptance of tender.
The tender will be opened on 27-5-1988 at 10-00 a.m. if possible in the office of the Collector, Daman.
The tender should be superscribed the word "tender for Setting up a Restaurant in Daman".
Sd/-
(M.S.Khan) Collector, Daman".
20. Some features become manifest on the basis of this notice. The first is that is signed by the then Collector at Daman Shri M S. Khan. It mentions as the Administration of Daman and Diu along with the Office of the Collector, Daman. It is extremely relevant to note that in unequivocally mentions that the tenders are invited by the Collector, Daman "on behalf of the President of India". It then specifically refers to the object to be achieved suggesting that bringing up such a restaurant at Daman to cater the needs of increased flow of tourist was the main objective. It also invites parties who have enough credentials and experience in that field obviously because the tourist from the different parts as also outside the country are expected to visit the place. Thus by publishing this tender notice as the first stage it has been clearly represented that it was officially done, that it was issued from the Administration of Daman and Diu and it was signed by no other person than the Collector and what is of importance is that the tenders are invited by the Collector who was obviously acting "on behalf of the President of India". There is no mistake or any reservation in that behalf. Thus the designation of the authority as also the capacity of the authority under the statute itself is writ large in this notice because the Collector was the competent person; it was issued by the Administration of Daman and the Collector was proclaiming to act on behalf of the President of India. This is coupled with the fact that the objective was obviously to attract more tourists and thus to prosper the tourism in that behalf and thereby the Department of Tourism had also participated in initiating this proposal. On a plain reading of this tender notice it would convey to the public at large and to the persons interested in this project that all legal formalities have obviously complied with since it is issued by an authorised person and also under the authority of the President of India. The recitals are specific and the impression conveyed through them is equally specific and there is no escape from this conclusion.
21. In pursuance of this notice the petitioner wrote to the Collector on May 26, 1988 giving almost a table of their credentials and their experience in that field. Thus they indicated that they have undergone several civil project in different parts such as Kamat's hotel at Vapi, Kamat's hotel at Silvassa, which where inaugurated by the Governor of Goa and Administrator of Daman and also similar project at Khandala. As per the tender notice they expressed being agreeable to invest their own funds for starting the restaurant. They also indicated that they were appointed as official caterers to the President of India at the time of his visit to Dadra and Nagar Haveli. They also suggest that they will be completing the project within two months after the acceptance of tender.
22. This tender was considered in all its respect by the authority along with the other tenders along with other tenders and the authorities found the petitioner to be most suitable to be entrusted with this project. Consequently an intimation was sent by the Collector to the petitioner mentioning as---
" This Administration is pleased to accept your tender dated 26-5-1988 for setting up a Restaurant in Daman.
You are therefore, requested to remain present in the office of the Collector on 7th June, 1988 for signing an Agreement for Lease of Land."
Reference at the top of the letter is relevant which reads as ---
"NO: COL/DEV/Tourism /Admn. of Daman and Diu Office of the Collector DAMAN, Moti-Daman 396220."
This letter, therefore, makes it clear that petitioner's tender was accepted on its own merits and it was conveyed that the Administration was pleased to accept the same and this letter also indicates the objective of tourism and the participation of that Department in that behalf and this is signed by the Collector.
23. It is thereafter that the main document came into existence on June 7, 1988 which is the Deed of Lease and a more detailed reference to some of the which recitals in that document would be unavoidable. This is executed between the petitioners and the President of India. It would not be the burden on record if some relevant recitals are reproduced verbatim---
"Memorandum of Lease"
"THIS MEMORANDUM OF LEASE is made on this day of 7th June, Nineteen Hundred and Eighty Eight BETWEEN the PRESIDENT OF INDIA (hereinafter called "THE LESSOR") of the one part and KAMAT HOLIDAY RESORTS PVT. LTD a Company registered under the Companies Act .............(herein after called "THE LESSEE")....................
WHEREAS the LESSEE has through a tender been selected for setting up a Restaurant at Daman for which Govt. Land is to be made available on lease in accordance with section 33 of Goa, Daman and Diu Land Revenue (Disposal of Govt. Lands) Rules, 1971. A plot admeasuring 4 Acres situated at Marwad, Nani-Daman and more particularly described in the Schedule appended hereto and delincated in the plan hereto annexed (hereinafter called as "The said Land").
AND WHEREAS the LESSOR has agreed to give on LEASE the said land to the lessee on the terms and conditions as stipulated hereto.
NOW THIS DEED WITNESS and the parties hereto hereby mutually agree as follows:
That in consideration of payment of Rs.16,000/- (Rupees sixteen thousand only )per annum as Rent of the said Land terms and in consideration of the convenents and the terms hereunder, the Lessor hereby conveys by the way of lease of the said land as particularly described in the schedule appended hereto the Lessee for a period of 5 years and to be extended by the LESSOR if the LESSEE prove their worth with reference to the objective behind the issue of the tender notice : namely cater to the growth of Tourist traffic in Daman commencing from September, 1988 for the purpose of setting up a Restaurant etc. at Daman.
The Lessee shall pay annual rent of Rs. 16,000/- (Rupees Sixteen thousand only) regularly in advance on or before the first day of the month of December in each year during the currency of lease. In case of non-payment of Rent for any year during the currency of lease, the lessee shall be liable to forfeit all interest in the said lease and the lessor shall be entitled to issue a notice demanding repayment of such arrears.........................
The Lessee shall not use the said land for any purpose other than for setting up Restaurant thereto.................
The Lessee shall complete all the constructions of the buildings indicated in the plan of the project and utilise the land within a period of 2 months from the date of agreement, subject to force mageur clause. They should also ensure that the construction should not be of more than ground and one storey. In the event of their failure to do so the lessor shall be free to revert the un-utilised land without any prior notice to this effect to the Lessee.
The Lessee shall allow the Officers or servants or any person duly authorised by the Lessor in this behalf, to enter upon and inspect the said land as it may be necessary in the interest of the said land.
The Lessor on expiry of the period of the Lease may in his discretion renew the Lease with respect to the said land for such period and subject to such terms and conditions as agreed upon between the parties hereto.
The Lessee shall pay the value of forest produce if any standing on the said land. The lessee shall not disturb the prevailing environment and will preserve the existing trees. The structures in the said land should be of such nature that the same should mingle with the local environment.
The Lessee shall be subject to the Provisions of the Goa, Daman & Diu Land Revenue Code, 1968 and the rules made thereunder.
........................
IN WITNESS WHEREOF the Parties have signed this deed on the day and year first above written.
Sd/-
Signed and sealed and delivered by the Collector, Union Territory of Daman and Diu. Daman for and on behalf of the Presi dent of India.
WITNESS
1. Sd/-
2. Sd/-
Signed, Sealed and delivered by For Kamat Holiday Resorts, Pvt. Ltd.
Sd/-
Messrs. Kamat Holiday Resorts Pvt. Ltd.
for and on behalf of the lessee.
WITNESS
1. Sd/- xx
2. Sd/- xx"
24. The said document is accompanied by the schedule giving the specifications of the land in question along with the boundaries, the area, etc. and it is also accompanied by the map. The execution of this document is accepted by the respondents in every respect. Admittedly this is a Deed of Lease and many of the features harmoniously flow out of the said recitals which really speaking practically clinch the issue in favour of the contention raised on behalf of the petitioners.
25. The foremost feature is that the parties who have executed this document have much significance because the Lessor is described as "the President of India" and such Lessor is treated as Party No. 1 while the petitioners are described as Party No. 2. The Lessor being the President of India and the document being executed by and in the name of the President of India is, in our opinion, most relevant, significant and compelling pointer even in respect of the representation and the impression that it conveyed through it. This is to be read along with the designation of the authority signing on behalf of the Lessor when admittedly it is signed by the then Collector and what is of significance is that he has designated his capacity for the purpose of executing and signing this document under the label as the Collector at Daman "for and on behalf of the President of India". These two features read together make the circuit complete in that behalf making no mistake in conveying that the document is executed by and on behalf of the President of India and it is also signed by the Collector on behalf of the President of India. The legal formality investing the authority in the Collector acting on behalf of the President of India for the purpose of execution of this document is writ large and secondly the Lessor is described as no other person than the President of India. This being subject to the Union Territory the legal formality is thus complete. In the second chapter it is clearly indicated that lease is to be created on the land that is available in accordance with Rule 33 of Goa, Daman and Diu, Land Revenue (Disposal of Government Lands) Rules, 1971. Rule 33 is reproduced earlier in details making it clear that it is the Collector who has an authority in that behalf being entitled to create temporary leases and thus creating lease hold rights and thereby disposing unoccupied land of the Government which is to be done by public auction. That is precisely what the Collector had done. Therefore reference to this Rule 33 in this document has its own significance which further reinforces the conclusion that it is within the competence of the Collector to create such lease by observing the formality of inviting tenders and by public auction. The authority of the Collector, therefore, is once again accepted by the Government itself. The Collector acting for and on behalf of the President of India while executing the document is the further pointer to reinforce that conclusion. The witnesses have signed the agreement at two places one after the signature of the Collector and the other after that of the petitioners and the document is signed, sealed and delivered and thus both the parties have signed the document in execution thereof. There is also specific reference to the tender invited and the tender of the petitioners being selected. The objective is mentioned for setting up of the restaurant "to cater to the growth of tourist traffic in Daman". Thus the Department of Tourism had also participated in initiating this project because it is in their interest and they were anxious to encourage the tourists flow and set up of the restaurant at such a place was felt to be a vital one to achieve that object. The consideration is fixed at Rs. 16,000/- as annual lease rent. The authorities have detailed the right to inspect the land if necessary. It is significant to note that a condition is imposed that the lease shall not disturb the environment and would preserve the existing trees and the structure should be such that it should "mingle with the local environment". It makes a reference to the Land Revenue Code and the Rules of Goa. Daman and Diu being subject to the same and this also indicates the formality having been observed.
26. In the face of these firm recitals as incorporated in the memorandum of lease which is not disputed even inferentially on behalf of the respondents it serves as almost unassailable pointer that the document reflects observance of all legal formalities; that it was executed by the Lessor as prescribed under the statute and the Constitution and that was so signed by the person authorised in that behalf and that too on behalf of the President of India. The objective to be achieved is in tune with the nature of the project. Reference to Rule 33 of the Land Revenue Rules again high lights the authority of the Collector for creating leasehold rights and the procedure of inviting the tenders has also been accepted. The schedule makes specific reference to the land in question and all the boundaries. This document, therefore, in the first instance observes all the legal formalities and conveys to the petitioners the same impression in no unmistakable terms.
27. Admittedly soon after the execution of the lease deed the petitioners were put in actual and physical possession of the said land and they immediately commenced the development work.
28. The petitioners then wrote a letter dated 27th of June, 1988 making reference to this lease deed requesting the Administration to extend the period for completing the construction upto November, 1988 because of the unfair weather and setting in of the Monsoon. The Collector by letter dated 9th of August, 1988 granted extension to the petitioners upto November 1988. The petitioners then wrote a letter to the Sarpanch, Marwad Village Panchayat at Nani Daman for approval of proposed Resort on that land and to get the approval the necessary documents such as construction plan, site plan, village register extracts copies of schedule and copies of memorandum of lease were forwarded. "No objection" certificate was issued by the Health Officer, Primary Health Centre, Daman on 8th of August, 1988 which was in pursuance of the application made by the petitioners for no objection certificate for the purpose of retail sale of liquor on the premises of restaurant. This wing is of the Administration of Daman being the Office of the Health Officer, Primary Health Centre. Thus No Objection Certificate was issued for sale of liquor in the restaurant and intimation was sent to the Collector and the Excise Inspector. By a letter dated 3rd of August, 1988 the Sarpanch, Marwad Group Gram Panchayat informed the petitioners that the Panchayat has examined, the construction plans, etc. and informed that the plans have been "technically approved" and suggested that the construction should be done as per the said plans. On 19th of August, 1988 the petitioners requested the Assistant Engineer, P.W.D Daman to issue a new water connection for the said hotel. The petitioners also applied to the Department of Tourism under Union Territory of Daman and application in the prescribed form for registration of Hotel-Keeper under Article 3 requesting that they may be registered as Hotel-Keeper and the Hotel may be Known as "Kamats Holiday Resorts Pvt.. Ltd." mentioning that the land has been leased by the Government. The petitioners by letter dated 22nd of August, 1988 requested the Assistant Director of Tourism to have a proper fencing since their leased land is quite adjacent to the Government land and further requested to make arrangement to demarcate the area with appropriate fencing so that the amusement park which is located in the neighbourhood should not create any traffic problem for this hotel and its copy was sent to the Executive Engineer, P.W.D. and to the Range Forest Officer, Daman, for necessary action. The Assistant Director of Tourism some time thereafter at about the same time addressed a letter to the Executive Engineer, P.W.D. Daman, indicating that the fencing of the Amusement Park was not completely done and thus they requested the Executive Engineer to do the needful so as to comply with the request of the petitioners. The Excise Department of the Administration of Daman granted a licence to the petitioners for the sale of liquor in that restaurant.
29. It is not necessary to multiply these events and documents since the same pattern is followed.
30. All this would strongly indicate that after the lease deed was executed and after the petitioners were put in possession the petitioner immediately started developing the property and the construction work had progressed. Various permission and licences were obtained and all the plans were sanctioned by the concerned authority. It is indicated in the document themselves that the amount of Rs. 16,000/- as the lease rent for one year was immediately paid after execution of the document for which receipt is passed which was some time on 16th of June, 1988. The petitioners also paid the construction tax to the tune of Rs. 33,261/-. Various NOC certificates were obtained from the authorities and it is positively asserted by the petitioners that they have spend more than Rs. 3,79,000/- for the said construction and have also invested more amounts for the future development and the construction is to be completed within the stipulated period. All those aspects are not denied by the respondents at all.
31. The entire picture as projected through these documents and events go a long way to substantiate the petitioner's contention about the applicability of doctrine of promissory estoppel. In the first instance, to recapitulate, a representation was reflected at the threshold through the tender notice and it was reiterated in the deed of lease and was carried forward in various events and documents. All the documents and the memorandum of lease are executed by the Collector in his official capacity with full authority under the statute, the code and the Rules and the main document is executed for and on behalf of the President of India which aspect in our opinion is most eloquent. Everything is thus in tune and in consonance with the mutuality between the parities qua the representation and the action based on the same. If this is the situation which practically stares in the face, then it is inescapable to conclude that a clear representation was made in that behalf which contains an unequivocal and unqualified promise by the authorities concerned including creating an impression that it was so done under the full authority under the Statute and the Rules and the Collector was obviously authorised in that behalf and every one was acting for and on behalf of the President of India. The representation and the promise there under are boldly reflected through all these events including the tender notice and finally through the lease deed. This would be the only reasonable impression that could be conveyed through these documents and that is what has happened in the instant case. The second part is also fulfilled in as much as petitioners not only carried the same impression when they were made to believe that everything was being done in order and there would be no obstacle in setting of the restaurant and not only that but by the subsequent events it is clear that the petitioners acted upon the said assurances, representations and promises made to them by the respondent intending to create legal relations with the petitioners and have in fact created such legal relations by executing the formal document namely the deed of lease dated 7th of June 1988 knowing full that the petitioners would act there after upon the said representations, assurances and promises and the legal relations so created and further the petitioners were all along made to believe and in fact they believed these representations and promises suggesting that the petitioners would be entitled to carry out the construction work without any difficulty and further more the petitioners accordingly in fact fully acted on the same.
32. Shri Mehta, the learned Counsel, submitted that the Collector had no authority to execute such a document and thereby to make any representations and promises and secondly since it offends the provisions of the Statute namely the Forest (Conservation) Act read with Indian Forest Act, the Government could not be bound by the same. As stated, the entire argument is founded only on the basis that the Collector has no authority and secondly with the reference to section 2 of the Indian Forest Act. This point has been dealt with quite elaborately in the other context thereby negativing the contention raised by Shri Mehta in that behalf. The collector's authority is apparent while the non application of the provisions of section 2 of the said Act is equally apparent. The reasons, therefore, need not be restated. The representation and the promise flows out of various events and documents commencing from the invitation of tenders and the most important document is the deed of lease and as stated both have been executed by the Collector in his official capacity as the authorised person under the Code and the Rules and the same have been executed for and on behalf of the President of India. This area is the Union Territory. The Government of Union Territories Act, 1963 (Act 20 of 1963) would have some relevance under which the "Administrator" is defined as the administrator of a Union Territory appointed by the President under Article 239 and the Union Territory as defined includes any of the Union territories of Goa, Daman and Diu etc. Section 55 of the said Act relates to the contracts and suits and prescribes that all contracts in connection with the Administration of a Union Territory are contracts made in the exercise of the executive power of the Union and all suits and proceedings in connection with the Administration of a Union Territory shall be instituted by or against the Government of India. Article 299 of the Constitution in that context prescribes that all contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President and all such contracts and all assurances of the property made in the exercise of that power shall be executed on behalf of the President by such persons and in such manner as he may direct or authorise. Similarly Article 239 of the constitution stipulates that every Union Territory shall be administered by the President acting through an Administrator to be appointed by him. Under Article 239-A it is for the Parliament who can by law create for any of the Union Territories a body to function as Legislature and a Council of Ministers. The Administrator has power under Article 239-B to promulgate Ordinances during recess of Legislature. Under Article 240 the President can make regulations for the peace, progress and good Government of the Union Territory of Goa, Daman and Diu etc. The combined reading of all these provisions in the context of the document of lease would make it manifest that the structure of all legal formalities was meticulously observed through the recitals of the deed which was executed for and of the President of India. The Rules of business and also under the Revenue Code and the Rules there under fully authorise the Collector to sign such documents though the lease deed specifically mentions that it has been signed and executed for and on behalf of the President of India. As observed the lease deed in the instant case has been executed by the Collector exercising the executive powers of the Union under Article 299 of the Constitution and section 55 of the Union Territories Act and also under the concerned Land Revenue Code and Rules under the said Code which are cited earlier and especially Rule 33 empowers him to create a lease in respect of the land vesting in the Central Government which again serves as a pointer about the authority of the Collector to lawfully create such leaseholds rights. The Collector has several functions assigned to him under the statutory provisions, rules and regulations and when he issues an order whether he is acting for the Revenue Department or Forest Department of the Central Government would depend upon the Administrative Rules and Regulations. The issuance of any such notification by the Collector either under the Indian Forest Act or under the Forest (Conservation) Act would be an act on behalf of the Central government and it may not be for a citizen to enquire whether he was so authorised. The Collector in the Union Territory can be deemed to be the head of the Central Government. Various provisions under the Statute and the Land Revenue Code and the Land Revenue Rules coupled with the Rules of business would reinforce this proposition. If that be so, then is it really open for the respondents now to contend that the said document was executed by the Collector without any authority. The other question is equally relevant in as much as when the document itself even ex-facie exhibits the observance of all these legal formalities establishing the authority of the Collector to execute the document which was being executed for and on behalf of the President of India and was in consonance with the Code and the Rules then so far as the petitioners are concerned it is difficult to post them with any knowledge or even a remote doubt that the Collector's authority was defective. On the contrary the presumption should be other wise and they would be justified in bona fide believing that everything was done by the Collector under the authority and lawfully. In that context the provisions of section 114 illustration (e) of the Evidence Act would come into play under which Court can presume that the official acts have been regularly performed, meaning thereby that it can be presumed by any one that the official acts as disclosed through that document have been done regularly further meaning that it can be assumed that the Collector did execute the document under full authority and in lawful manner. This presumption would obviously come in to existence. Further more apart from any other feature at least in so far as the petitioners are concerned, who are the other party to the agreement, they can certainly presume that the said official act was done regularly and that the Collector was doing officially for which he was authorised to do so to create legal leaseholds rights in their favour, more so, in view of all the events and the positive recitals in the lease deed and also by subsequent acts of the Collector and other officials. Once this position comes on the surface then the complexion is entirely changed. It is thus the combined or the composite exercise of these two principles, one of promissory estoppel and the other regarding the presumption about the official acts having been done regularly prohibiting the Government to avoid the effect of such lease as they are bound by the promise held towards the petitioners and the Collector's authority cannot be challenged. This would be more so as even assuming otherwise, though such assumption is not permissible or available in the facts of this case, still first on the basis of the presumption such contention cannot be countenanced and secondly which is more important, that the petitioners obviously could not have visualised even remotely any such feature. Thus in effect there has been a specific promise held by the Government inducing the petitioners to carry a belief in their mind about the validity of leasehold rights and allowing the construction to go ahead and lastly the petitioners acted on that promise and assurance since the representation was clear in terms, in spirit as also in law. Consequently, therefore, the respondent would be stopped from going back on that promise and that too perhaps on the only ground as suggested by Shri Mehta the learned Counsel, about the application or the so-called prescription contained in section 2 of the Forest (Conservation) Act though we have indicated that this does not offend the said Statute also and therefore there is no question of estoppel against the Statute.
33. Reliance was placed on some decisions in that behalf. The law in that field however has crystalized in a well defined field and as such it may not be necessary to refer to all the ratios. Reference only to a few would suffice the purpose. In M/s. Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh and others, , a detailed discussion on the doctrine of promissory estoppel and all its facets has been made and this position has accepted all through out. Only a few observations in that decision can serve the purpose, since this ratio furnishes a furnishes a foundation for various principles in that behalf. The Supreme Court observed as-
"Doctrine of promissory estoppel has been variously called promissory estoppel', 'requisite estoppel' 'quasi estoppel' and 'new estoppel'. It is a principle evolved by equity to avoid injustice and though commonly named 'promissory estoppel' it is neither in the realm of contract nor in the realm of estoppel. The true principle of promissory estoppel seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it 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 taken place between the parties......... The doctrine of promissory estoppel need not be inhibited by the same limitation as estoppel in the strict sense of the term. It is an equitable principle evolved by the courts for doing justice and there is no reason why it should be given only a limited application by way of defence. There is no reason in logic or principle why promissory estoppel should also not be available as a cause of action, if necessary to satisfy the equity........."
It is then also observed that it may not be necessary for the application of this principle that the promisee acting on its reliance should suffer any detriment though what is necessary is only that the promisee should have altered his position in reliance on the promise. The detriment suggested is the prejudice which should be caused to the promisee if the promisor is allowed to go back on the promise. It is also stated that such a principle is available in a cause of action to the person to whom the promise is made. It is also stated that this doctrine has been also applicable against the Government and the defence based on the executive necessity has been categorically negatived. Thus when the Government makes a promise knowing that it shall be acted upon and the promisee actually acts on it and thus alters its position then the Government is bound by the promise and "the promise would be enforceable against the Government at the instance of the promisee" which could be even notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 299 of the Constitution. The Government would not be an exception or claiming immunity from the applicability of this proceeding. It is also indicated that this principle must yield when the equity so requires. A qualification is carved out in favour of the promisor such as when the Government can establish that having regard to the subsequent events it would be inequitable to bind the Government by the promise then the Court may not raise an equity in favour of the promisee and enforce the promise. Such a situation would also arise when the Government can establish that the public interest would be prejudiced if the Government is bound by the promise. However, for that purpose a caution is levelled that there is rigorous onus on the part of the Government to establish this fact by placing all the relevant material and they cannot be exempt from the liability on some indefinite and undisclosed ground of necessity nor can the Government claim to be the sole Judge of its liability and repudiate the same, It is indicated that the Government must disclose to the Court what are the subsequent events on account of which its exemption is sought for. Mere claim of change of policy would not be sufficient and it is then for the Court to decide where the public interest lies and what the equity of the case demands and it is only in such cases whether overriding public interest requires that the Government should not be bound when the court can decide upon it though the Court would not act on the mere ipse dixit of the Government because it is the Court which has to decide and not the Government whether the Government should be held exempt from the liability and this is held to be the essence to the rule of law. It is no doubt indicated that this doctrine cannot be applied in teeth and application of the liability imposed by law nor can the Government be compelled to do an act which is prohibited by law.
34. It is worth noting that it was indicated that the promise or the representation may not be reflected in a formal document but the case at hand is strong since it is firmly reflected in solemn document being the deed of lease made in the name of the President of India and in Consonance with Rule 33 of the Revenue Rules and the Collector has also signed for an on behalf of the President of India. The Government would be subject to the same rules as any other citizen. The event suggests that the Government must have realised that this promise was to be relied upon by the petitioners and it is established that the petitioners have actually acted on the same. The detriment is apparent because acting on the promise has changed the position of the petitioners substantially. As discussed, there does not appear to be any prohibition under any statute. It is worth noting an important feature in the said decision. There the representation was reflected in letter which was made be the respondent on behalf of the Government that the Vanaspati factory would be entitled to exemption from the sales tax for the period of three years. The Supreme Court observed as--
"The letter dated 23rd January, 1979 clearly shows that the 4th respondent made this representation in his capacity as the Chief Secretary of the Government and it was, therefore, a representation on behalf of the Government."
It was then observed that relying on this promise the other party borrowed amounts and acted on the same and therefore on this principle the Government was bound to make good representation made by it. In the instant case also as discussed earlier the representation for all practical purposes suggests that the Collector was lacking in his official capacity as the representative of the Government and the document itself promised that it was being executed for and on behalf of the President of India and thus all legal formalities were observed. If that be so, then it could be nothing short of a representation or a promise held by the Government itself and not by the Collector in any other capacity. Consequently, therefore, in the first instance the Collector had full authority and secondly the promise conveyed that it was being made by the Government itself and not by the Collector and the petitioners have acted on that consequence whereby they have changed their position in the transaction and allowing the Government to wriggle out the promise would be most inequitable causing immense hardship to the petitioners. As stated, no question arises in the instant case of their being any estoppel against the Statute. Further the said principle is being supplemented more firmly by the presumption under section 114(e) of the Evidence Act. Significantly no valid ground has been made out nor any suggested as to why the Government should be exempted from the liability because there is nothing on record to establish to the satisfaction of the Court that due to occurrence of any subsequent events the public interest would require exemption to the Government from the liability. Such a responsibility to establish that fact cannot be displaced by vague allegations which are also missing in the instant case. As stated, the entire exercise on behalf of the respondents to persuade the Court to allow the liability on the Government to be wiped out is founded only on the construction of the provisions of the Forest (Conservation) Act and which construction for the reasons already assigned is unsustainable. Under the circumstance, therefore, applying the guidelines and tests enunciated in the ratio of the Supreme Court the doctrine of promissory estoppel would come very much in force and it is coupled with the two important features one there being a formal document of deed of lease that has been executed and therefore the promise is not reflected in any oral assurances or correspondence. Further the document is executed for and on behalf of the President of India observing all formalities and the second important feature is that on the basis of the document and other features the petitioners could very well rely on the promise on the footing that the official act was being done regularly with full authority and lawfully. The petitioners have acted on that and have spent lot of money. Further the Tourists Department itself has been anxious to develop that location and to have a restaurant there to attract the tourists. Under the situation, no circumstances are placed on record to justify allowing exemption for the Government from such a liability though on the contrary the dice is heavily loaded against the Government because in reality it is the representation and promise by the Government itself. As discussed, no exception could be carved out for getting such an exception, such as, there is no question of acting against any prohibition or any statute, not there arose any subsequent events justifying grant of exemption. The other tinge has also some relevance in as much as even assuming that the permission of the Central Government is necessary for the Collector as contemplated by section 2 of the Forest (Conservation) Act, though on a proper construction that plea is negatived and therefore any such assumption is not at all available on the fact of the case and hence this aspect is being considered only on the basis of the argument advanced by Shri Mehta which argument has already been discussed, still it is not as if that basically the Collector has no authority though the only impediment or the qualification was for him to take prior approval of the Central Government. As stated, the document is in the name of the President of India. However, if that was the only drawback which is conceded on behalf of the respondents though the petitioners maintained and rightly so that it was not a drawback as such since no permission was necessary, still in so far as the petitioners are concerned who are the other party to the agreement they would have been justified in allowing the belief being generated in their mind that the Collector had full authority in that behalf and had taken prior approval. They were not expected to know on account of these various features that such prior approval was not taken. This was the internal deficiency, it any, with which the petitioners were not concerned at least in so far as believing the promise made by the Government. From this point of view also, therefore, the Government cannot be allowed to beck out on the only and the spacious ground that prior approval of the Central Government was not obtained by the Collector though it is maintained that in the instant case such an approval was not necessary because it is the Central Government itself which was creating the lease and holding out the promise.
35. It is also worth noting that this is a case where even as per the contention of the respondents at its maximum, which contention has already been negatived on its merits, it is not as if that the Collector could never have created lease-hold rights under the agreement, but the only qualification according to the respondents was that the Collector should have taken prior approval of the Central Government. Though this is not accepted by the petitioners, as discussed earlier, still it is not that there was absolutely no possibility of creating any lease even by the Collector and in any event the petitioner could not have visualised that no such permission was taken from the Central Government though basically it is an agreed position even according to the respondents that after such condition is fulfilled the Collector could have lawfully created a lease. This aspect also would make some difference in favour of the petitioners carrying an impression and acting there on though as discussed the contention of the respondents in that behalf is not acceptable because practically it is the lease created by the Government though the document was formally signed by the Collector and that too for and on behalf of the President of India.
36. The doctrine of promissory estoppel was considered by the Division Bench of this Court in Bharat Commerce and Industries Ltd. and another v. Union of India and others, 1987(32) Excise Law Times, 40 wherein the survey of several cases available in that field was taken. The question of exact rate of duty under the Excise Law was under consideration and the promise held on a particular notification was held to be binding on the authorities. The question about the doctrine being available when the Government in exercise of power to frame subordinate legislation makes a representation but thereafter acts contrary to it was also considered and in that context some ratios were also examined. The four cases under which this doctrine was not available were also considered observing that it may not be available against the legislature exercising legislative functions, it is not enough that the legislative functions are being carried out; it is only if the legislative functions are being carried out by the legislature that the doctrine is not available. No doubt its non availability against the statute was restated but it was qualified that it does not mean that it is not available to the Government or some public authority does something in the exercise of powers conferred on it by statute. It was further observed relying on the Supreme Court's decision that the Government is under no obligation to make a representation. If, however, it does it must be held to it subject to the limitation the Government must honour such representation. The necessity for the Government to establish all adequate material prejudicial to the public interest on account of facts transpired after the representation has been restated though the dimensions of such burden on the Government are also highlighted and it is for the Court to get satisfied about such inequities so as not to bind on the Government.
37. In Assistant Commissioner of Commercial Taxes (Asst.), Dharwar and others v. Dharmendra Trading Co. etc., the argument that the concession granted by the earlier order was of no legal effect as there is no statutory provision under which it was granted was negatived by the Supreme Court when it was observed as---
"We totally fail to see how an Assistant Commissioner or Deputy Commissioner of Sales Tax who are functionaries or a State can say that a concession granted by the State or how the State can say so either."
38. Reference to the other decisions may not be necessary which have been exhaustively considered by the Division Bench of this Court in Bharat Commerce and Industries case cited supra such as Union of India v. Godfrey Philips India Ltd., 1985(22) Excise Law Times 306, wherein, the said doctrine has been restated accepting the ratio in Motilal Padampat Sugar Mills case, and while expressing doubt about some observations in the case of Jeet Ram v. State of Haryana, . It is observed and laid down that this doctrine is not limited in its application only to defence but can also find a cause of action. Further it is also applicable against the Government and it cannot be defeated by invoking the defence or the executive necessity and such a promise if acted upon can be enforced even if is not in the form of a formal contract. It is also applicable against public authorities. The other qualification however, which are elaborated in Motilal Sugar Mills case such as if it is against the statute or some prohibition or against public interest are restated. In the instant case no such qualification is attracted at all and therefore, the doctrine becomes fully applicable against the Government also.
39. Reference to some other objections may not be necessary in details since the petitioners would succeed on the main point which are already discussed. Thus for instance Shri Mehta, the learned Counsel, contended that the document in question namely the lease deed is not registered under the Registration Act and therefore it will not create any title in favour of the inference as per section 49 of the Act. However, it is answered by Shri Zaiwala on the ground that the provisions of section 53-A of the Transfer of Property Act about the principle of part performance would come into play. This point is not seriously pressed into service by Shri Mehta the learned Counsel, and therefore need not detain us. It was contended that this construction may damage the trees that are standing on the land since the Forest Department is concerned with it. However, it is to be noted that repeatedly the petitioners have stated on affidavit that there is no question of damaging any tree and in fact it is not even whispered on behalf of the respondents that actually any damage has been caused to any of the trees. This condition is actually incorporated in the lease deed itself and secondly even the affidavit filed on behalf of the respondents makes a veiled apprehension that there is a fear of damage to the trees though the correspondence and the record clearly suggests that in fact not even one tree has been cut or damaged. It is also worth nothing that the Forest Department Intended to number the trees so as to have a check and this would be sufficient protection. Further in the letter dated December 28,1988 addressed to the Chief Secretary of Daman and Diu and Deputy Conservator of Forests, Daman the petitioners have made it very clear that--
"It is also quite evident from our construction at the site that in order to safeguard trees we have offset them by making a detour of the walls."
This aspect also need not detain us because that is also not seriously pressed into service especially when it is not contended that any damage is being caused if that be so, then there is no question of the construction and thereby the lease offending the provisions of the Tree Preservation Act.
40. Shri Mehta then tried to submit that the construction would be within the area of about 500 metres from the high tide and that would create technical deficiency since the permission could not have been granted. For that purpose he tried to rely on some direction given by the Administrator and concerned Ministry which in turn is based on the letter written by the then Honourable Prime Minister suggesting that it would be better that if no construction is effected in coastal area. However, beyond this administrative guideline or letter there is nothing on record which could have force of law. This is conceded by Shri Mehta, the learned Counsel for the respondents, who has fairly accepted that he could not press that point and therefore it has been practically given up. The position is, therefore, quite clear that there is no law or statute under which such prescription could be annexed. The Supreme Court in Bijoe Emmanuel and others v. State of Kerala and others, , has clearly laid down that circulars or administrative guidelines have no force of law and thus could not be held to be binding. The Administrative Tribunal, Goa, Daman and Diu at Panaji in Land Revenue Appeal No. 2 of 1987 in the matter of Mr. Jimmy Gazdar v. The Deputy Collector, reiterated that proposition relying on a decision of this Court at Panaji Bench reported in 1984 Maharashtra Law Journal 132. Since however that point is not pressed a further discussion is not necessary.
41. The last contention raised on behalf of the respondents relates to the twin aspects one about the doctrine of promissory estoppel being not available in a transaction founded on contract and secondly writ petition itself would not maintainable if there is a breach of contract. Reliance was placed on the ratio in State of Haryana and others v. Jage Ram and others, A.I.R. 1980 Supreme Court, 2018, and in Life Insurance Corporation of India v. Escorts Ltd. and others, . The facts of the first case are not applicable at all because the respondents therein wanted to get out of the contract under which liquor licence was being granted when it was held that the respondents could avoid their contractual liability by challenging the Rules under which the bids offered by them were accepted and under which they became entitled to conduct their business by filing the writ petition. There is no question of any one wriggling out of the contract. In the second case it was indicated that if the action of the State is related to contractual obligations or obligations arising out of the tort, the Court may not ordinarily examine it unless the action has some public law character attached to it and fall in public law domain. However, it was indicated that the difficulty will lie in demarcating the frontier between the public law domain and the private law field. It is impossible to draw the line with precision and it may not be attempted and it was ultimately held that the question must be decided in each case with reference to the particular action. It was however indicated further what when the State ventures into the corporate world and purchases the shares of a company, it assumes to itself the ordinary role of a shareholder and dons the robes of a shareholder, with all the right available to such a shareholder and there is no reason as to why the State as a shareholder should be expected to state its reasons when it seeks to change the management. Reliance was placed on behalf of the petitioners in the case of The Gujarat State Financial Corporation v. M/s. Lotus Hotels Pvt Ltd., , when the similar argument was rejected when it was observed that it is too late in the day to contend that the instrumentality of the State which would be "other authority" under Article 12 of Constitution can commit breach of a solemn undertaking on which other side has acted and then contend that the party suffering by the breach of contract may sue for damages but cannot compel specific performance of the contract. It was held that acting on the solemn undertaking, the respondent proceeded to undertake and execute the project of setting up a 4 Star Hotel and the agreement to advance the loan was entered into in performance of the statutory duty caste on the Corporation by the statute under which it was created and set up, and if the loan was not forthcoming, the respondent may not have undertaken such a huge project and therefore not sanctioning the loan subsequently could not be permitted holding that the principle of promissory estoppel would certainly estop the Corporation resiling from a solemn promise made by it to the respondent. Shri Mehta, the learned Counsel, tried to submit that the other decisions of the Supreme Court have doubted this ratio. However that does not appear to be the position.
42. It is also submitted with some justification that this is not the case which is exclusively and essentially based or founded on a contract and the relief is claimed on the basis of breach of contract. The document of lease may create an agreement but the lease hold rights are created thereunder and what is under challenge is the stop work notice in the midstream which would fall on the separate track when the breach of contract is committed and this is based essentially on the assumption that the Central Government's prior approval was not taken but for which the Government had also no objection to go ahead with the contract. In reality there may not be any question of breach of contract so as to claim damages. No party intends to commit any such breach. No term of the agreement is violated by the petitioners who are already in possession and intend to solemnly observe all the conditions and stipulations. The action is reflected through the 'stop work' notice on the so-called realisation that the Central Government's prior approval was not Collector. Essentially, therefore, it would be wrong to say that it is based on a contract and no equities are evolved and therefore the doctrine of promissory estoppel which is based on equities would not be up held though on the contrary the equities are in abundance and the challenge is essentially based on the same.
43. It is also worth noting that the correspondence which is placed on record makes it abundantly clear that everything was being done openly and all the Departments of the Government were not only knowing the same but were participating in the continuation of the project and for which purpose even for Forest Department could not have lagged behind since the tender was officially called for and what is of importance is that by the letter date 22nd of August, 1988 by the Assistant Director of Tourism addressed to the Executive Engineer, the question of fixing the fencing around this property was disclosed and its copy was sent to the Range Forest Officer, Daman with a request to show the boundary of Devka beach to the concerned authority. It is also apparent from the record that the attempts were made by the Forest Department to number the trees even after this agreement was executed. The correspondence also clearly shows that the Department of Tourism had fully and actively participated and had sanctioned the project in every respect and actually they were more anxious to see that the project is complete as early as possible and that is why letters were written even by the Tourists Department to various other Wings. Shri Zaiwalla, the learned Counsel, therefore, rightly submits that it is too much to accept that one Department of the Government was not knowing as to what was being done by the other Department. There is one other relevant feature which is manifestly reflected through the record and the correspondence. Adjacent to this land there exists an Amusement Park known as "Devka Amusement Park" and that would also lie in the same region where objection was taken by the Forest Department and secondly the same contains some prominent structures. That area also would be within the range of 500 metres from the high tide. The photographs make it very clear that it is not only that swings were erected but there has been some other construction. Further more one more hotel or restaurant is in existence in the close vicinity for which no objection has been taken. There also exists the Golf Club in that vicinity. Therefore, the whole idea appears to be that the Government is anxious to attract the flow of tourists and that is why it was decided after application of mind to have a good hotel or restaurant at the site and the location was so selected because its nearness to the beach was necessary to attract and to accommodate the tourists. It is also worth noting that even the proposed restaurant would have only the ground and one storey and it is not as if that it is the multi-storeyed building and secondly the initial duration of the lease is only for five years. There is no material worth the name that any public interests are being prejudiced though on the contrary various Departments are anxious to have a restaurant on that site to attract the tourists because the flow of tourists at Daman is the principal enterprise in that behalf. The environment would not be damaged but on the contrary would be enhanced. The Forest Department can always have liberty to number the trees and even to keep a watch so that no damage to the property is caused. The other striking feature is that the then Collector who executed the lease dead has not filed any affidavit whereas the affidavit is filed by his successor who issued the notice which affidavit itself contains more deficiencies rather than any substance and what is of more importance is that no affidavit is filed on behalf of the Union of India. Furthermore as discussed, the affidavit filed by the Assistant Conservator of Forests is doubted and questioned through the other affidavit filed by the Deputy Conservator of Forests and this other affidavit and the documents are filed at a belated stage when the arguments for the petitioners were already over, though in order to do justice and fairplay, we had allowed the same which however have been totally contested and decided by the petitioners. It is worth noting as a relevant and significant feature that Shri Mehta, learned Counsel for the respondents fairly and expressly conceded that if his challenge based on two grounds, one about the absence of Collector's authority and second about the respondents of prior approval of Central Government, is negatived, then the respondents would be obviously out of Court and the validity of the impugned order could not be sustained. On the elaborate analysis, the respondents would fail on both counts. That is precisely what has happened in this case making the result even accepted by the learned Counsel must follow.
44. Having regard to these features in their totally in our opinion it is futile to contend that writ petition should not be entertained. It is also futile to contend as being too late in the day that something has been done by the Collector contrary to the Rules. The doctrine of promissory estoppel effectively comes into force and it is supplemented by the principle envisaged under section 114(e) of the Evidence Act about the presumption of the official acts having been done regularly and furthermore the main document of lease makes it abundantly clear that it was executed and on behalf of the President of India. The petitioners were made to believe the said promise and have acted on the same and are thus being put to tremendous loss on account of the stop work notice. It is also worth noting that not a single reason has been given about the said act as to why the work was being stopped and such reasons can hardly be supplemented or furnished through an affidavit as observed in Mohinder Singh Gili and another v. The Chief Election Commissioner, New Delhi and others, .
45. Having regard to all these features in their totality and in proper perspective we are of the firm opinion that this is a fit case where not only the writ petition should be entertained but the same deserves to be allowed.
46. Rule made absolute in terms of prayer Clauses (b) and (c) with the resultant consequence that the impugned stop work notice dated October 11, 1988 issued by the third respondent in relation to the construction work in question against the petitioners is quashed and set aside.
47. The petitioners shall get the costs of this petition from the respondents.
48. At this stage Shri Mehta, the learned Counsel for the respondents, makes an oral motion for the stay of execution of this order which motion is opposed on behalf of the petitioners on various counts such as much time is already lost reducing the tenure of lease and heavy amounts are invested, the findings about the utter vulnerability of the order are in their favour and it would create much difficulty after setting in of Monsoon. In fairness it would be necessary to give some time to the respondents so as to protect their interest at least for a short time. Consequently prayer of the petitioners for effecting any construction or even plastering of the walls which are in existence cannot be granted. However, modification is suggested as alternative that the petitioners be allowed to erect an absolutely temporary roof over the walls which are already constructed so as to protect the wooden frame work and other fixtures and also similar temporary roof in the open space with an assurance that no permanent structure or construction of any kind would be effected during this short period. A further request is made that the petitioners be permitted to start at least a snack Bar even under such a temporary structure and the open space at least for short duration so as to take advantage of the summer season which however could not extend at the most beyond 15th of June because of the setting in of the Monsoon and since the same would be practically in the open space. It is also pointed out that even after the stop work notice was issued the administrator had granted limited stay and had allowed the functioning of the snack Bar for sometime. Reinstallation of electricity and water connection though on temporary basis for this limited purpose is also requested. The suggestion though opposed by Shri Mehta deserves to be granted since it would be in the interest of justice and the assurance not to have any construction or even permanent roof would be enough protection for the respondents. The petitioner shall however do the same at their own risk without damaging the property in any manner. There may not be prohibition for starting a snack Bar or a restaurant on an absolutely small and temporary scale if of course all other formalities are fulfilled. This would afford protection to both the sides.
49. Consequently execution of this order is stayed for a period of four weeks except with the modification that during this period the petitioners would be permitted to have temporary roof erected over the walls already constructed and also in open space if need be. There would be temporary reinstallation of electricity and water connection. This order would not prohibit the running of restaurant or snack Bar on small scale and exclusively on temporary basis on the site in question it stands provided all other formalities in that behalf are observed. There would however be no permanent construction of any nature during this period. These restrictions would remain in force for a period of four weeks.