Calcutta High Court
Salkia Businessmen'S Association vs Howrah Municipal Corporation & Ors. ... on 16 March, 2000
Equivalent citations: (2000)3CALLT76(HC), 2000(2)CHN400
Author: S.B. Sinha
Bench: Satyabrata Sinha
JUDGMENT S.B. Sinha, J.
1. The appellants being aggrieved by the dismissal of their writ application in limine had preferred this appeal.
2. The appellant No. 1 is said to be an Association of small traders and businessmen having their place of business in and around Salkia area of Howrah town. The appellants and the other members of the appellant No. 1 who are said to be 200 in number had their shop rooms situated at Grand Trunk Road (North) in Salkia Chowrasta. A Project of the Howrah Municipal Corporation regarding construction of a fly-over near the Salkia Chowrasta was mooted in the year 1990 wherefor public opinion was also obtained. The petitioners having come to learn that in view of the construction of a fly-over their shop-rooms would be demolished, made a representation before the Mayor, Howrah Municipal Corporation but before the dispute raised by the appellants, a tender notification appeared in various Newspapers for a tender of work in connection with the construction of the said fly-over. The appellants thereafter came to learn that only honest businessmen would be provided with alternative accommodation and, thus, became apprehensive that they would be evicted from their place of business.
3. A writ petition was filed by the appellants in this Court which was marked as C.O. No. 14861 (W) of 1990 and out of mutual settlement an agreement was entered into on 12.2.1991 which is in the following terms :--
"That during pendency of the instant writ proceedings, the parties to the same namely, the writ petitioners, the Howrah Municipal Corporation and Howrah Improvement Trust have agreed to settle the dispute of the instant writ proceedings amicably and also agreed on the terms, as stated below :--
(i) The respondents/authorities will rehabilitate all the persons who will be affected or displaced for the purpose of the Scheme by allotting shops/place of business/residential place.
(ii) No shop-keepers, trader, or any other person will be asked to vacate his shop/place or business/residence or no building will be demolished unless alternative accommodation is given to him.
(iii) The shop-keepers and traders will be paid compensation for the loss of their business/trade which they will suffer for the construction of the fly over as per provision of Land Acquisition Act. The proceeding for compensation be completed at the earliest, preferably within six months' from date.
(iv) The rents to be charged from the shop-keepers traders and other persons for the new accommodation will be as per rate to be fixed by the land acquisition collector.
(v) The authorities will not charge any betterment fees or premium from the shop keepers/traders/other persons who are tenants. They will be rehabilitated in new accommodations provided they agree to the offer of the authority."
4. On the basis of the said agreement the writ petition was disposed of on 13.2.91. However, from March-April, 1991 to March-April, 1992 the entire traffic was closed for preliminary works. Allegedly, no compensation has also been paid to the petitioners. As regard rehabilitation admittedly several meetings were held wherein the appellants were allegedly apprised the following :--
"(i) the places which would be allotted to the members of the Salkia Businessmen's Association by way of alternative accommodation would have to be accepted by the concerned displaced persons on ownership basis;
(ii) the said alternative accommodation would be provided at 24 & 25 Dol Gobinda Singha Lane, where the Howrah Municipal Corporation made provision for alternative accommodation."
5. Constitution of the petitioners-appellants is that the purported offer to provide alternative accommodation in Dol Gobinda Singha Lane is contrary to the agreement dated 12.2.91. It is not in dispute that Dol Gobinda Singha Lane is by the side of G.T Road and is connected through a 10 ft. wide passage. According to the appellants, therefore, the said action on the part of the respondents is vlolative of Articles 19(i)(g), 21 and 301 of the Constitution of India.
6. Mr. Pal, the learned Senior Counsel appearing on behalf of the appellants, inter alia, submitted that the learned trial Judge erred in dismissing the writ application in limine inasmuch as the assurance given by the respondents herein was an enforceable one. In support of the said contention reliance has been placed on Shri Guru Singh Sabha v. Defence Colony Welfare Association & Ors. reported in 1993 supp(1)SCC 666. According to the learned counsel, even the contractual right can also be enforced. In support of the said contention reliance has been placed on Mohammed Hanif v. The State of Assam , Shrtlekha Vtdyarthl v. State of U.P. . LICof India &Anr.v. Consumer Education & Research Centre & Ors. , Common Cause, A Registered Society v. Union of India & Ors. and Style (Dress Land) v. Union Territory, Chandigarh . The learned Counsel contends that if an agreement to grant loan can be enforced, there is absolutely no reason as to why a rehabilitation scheme cannot be enforced. Reliance in this connection has been placed on The Gujarat State Financial Corporation v. M/s. Lotus Hotels Pvt. Ltd. . It was submitted that by reason of the aforementioned agreement the appellant has a legitimate expectation that the respondents would act in terms thereof and on that ground too the writ application was maintainable. Reliance in this Connection has been placed on Food Corporation of India v. M/s. Kamdhenu Cattle Feed Industries , Nirmal Singh v. State of Punjab . Kalyanl Spinning Mills Ltd. v. Sudha Sashikant Shroff , Sudha Textile Traders v. Kalyant Spinning Mills Ltd. reported in 1994(2) CHN 7, M/s. Doki China Gurubalu and Sons and Co. v. State of Orissa & Ors. . Peerless Drive Limited v. Union of India & Others, reported in 1993(2) CHN 362, Jute Corporation of India Ltd. v. Nelllmaria Jute Mills Co.
Ltd. & Anr. reported in Cal. LT 1993(1) HC 79 and Monoranjan Das v. The State reported in Cal. LT 1994(1) HC 11.
7. Mr. Roy, the learned counsel appearing on behalf of the respondents, on the other hand, submitted that Dol Gobinda Singha Lane is Just by the side of the G.T Road. The respondents-Corporation, however, states :--
'That the measurement area of the rehabilitation project for the shopkeepers are equal to the size and/or dimentional area which they had been possessing in their erstwhile business place and in the name of rehabilitation there is no scope to give more or added area to any of the shopkeepers. The intimation for supply of electricity by Howrah Improvement Trust dated January 7, 1999 was given only to specify and inform, in particular the rooms and the Blocks of the shopping complex allotted to each individual shop owners in order to meet their demand of electricity to their respective shops for being used for business purpose. This intimation is neither contrary to nor in flagrant violation of the order of this Hon'ble Court, as alleged. That unless and until specification is given for fixation of meter at specified place, C.E.S.C will not be able to supply electricity at the above said rooms mentioned in the said intimation letter."
8. However, it is further stated :--
"That the total scheme of rehabilitation was made according to the area which the shopowners were possessing in their erstwhile shops and as such the total are measurement and the allotment of rooms were made according to the area of the shopkeepers and as such the individual area of each shopkeepers are similar to that of the areas they were in possession in their previous business. It is pertinent to mention here that in fact and in effect it was on the G.T Road, the area is 'J'-shaped one connected with 20' wide road on two sides with the G.T Road for avoiding traffic congestion. Fly-over itself is being constructed in order to avoid traffic congestion by the side of the G.T Road. In the event if the area is to be placed on G.T Road then there will be a further displacement of a number of persons when the corporation authority is trying to avoid any displacement and that apart, the placement of the shopkeepers at the said address would by no means cause any prejudice and/or effect the interest of the petitioners in any manner whatsoever."
9. Although some of the statements made in the affidavit-in-opposition filed before this Court by the Howrah Municipal Corporation had been denied and disputed by the appellants herein in their affidavit-in- reply; there cannot be any doubt whatsoever that a serious disputed question of fact has also arisen. There cannot further be any doubt whatsoever that public interest must prevail over the private interest It has not been disputed that Howrah Fly-over has been constructed. It has further been brought on record that the owners of the building, whose tenants are the shopkeepers, had already received compensation.
10. Once there exists a public purpose, the State can acquire the land and the building whether tenanted or not in terms of the provision of the Land Acquisition Act. Land Acquisition Act, 1894 provides only for payment of compensation to the persons who owns the land/or the building or who has any interest therein. Apart from payment of compensation the Land Acquisition Act does not contemplate grant of any other relief in any other form. However, it may not preclude the authorities from drawing up any alternative scheme of rehabilitation in terms of a policy decision taken in that regard by the State.
11. The questions which arise for consideration in this appear are :--
1. Whether the agreement can be specifically enforced so as to mandate the respondent-Corporation to provide accommodation to the members of the appellant No. 1 only on G.T. Road and not at a place which is by the side of the G.T. Road?
2. Whether a compromise entered into in a writ application can be enforced?
3. Whether by reason of the agreement the respondents made a representation which can be specifically enforced by issuance of a writ?
4. Whether the settlement in question can be specifically enforced by this Court on the ground that thereby a representation has been made?
12. It is now a well settled principles of law that the power of Judicial review of this Court is very limited. The Court exercises its jurisdiction under Article 226 of the Constitution of India in a dispute involving public law character. Private dispute ordinarily is not within the domain of the High Court calling interference in the matter.
13. In the backdrop of the aforementioned well settled principles of law let us now consider the decisions relied upon by Mr. Pal.
14. In Shri Guru Singh Sabha v. Defence Colony Welfare Assn. reported in 1993 supp(1) SCC 666, although allotment was made but keeping in view the fact that similar allotments had been made in favour of two other parties and, thus, it was not possible for the State to allot the entire land, the Apex Court while declining to adjudicate the rival claims as the other two claimants were not impleaded as parties, question of legitimacy on the appellants' claim was considered and without going into the legal question a direction was issued to the Government to allot a plot of land to the extent of 1500 Sq. Yds. out of the assured land of 2420 Sq. Yds. Neither the questions raised herein was considered nor any interest was expressed, the decision was more or less rendered on consent of the parties and keeping in view the stand taken therein.
15. Olga Tellis &. Ors. v. Bombay Municipal Corporation & Ors. has no application in the instant case as the same related to the pavement dwellers. Olga Tellis (supra) is not an authority with regard to the rehabilitation of the shopkeepers as has been explained in Sodan Singh v. New Delhi Municipal Committee & Anr. reported in AIR 1989 SC 1988 at 1997. In Sodan Singh (supra), the Apex Court has clearly held that Article 21 of the Constitution of India has no application in relation to the case of trade or business. Articles 19(1)(g) and 21, according to the Apex Court, are too remote to be connected together.
16. In the instant case also the right of the petitioners to carry on trade or business is not impaired. They even without the scheme were liable to be evicted. They did not have any fundamental right to carry on a business in derogation to a public project which is meant for a public good and served a public purpose. At best they were entitled to compensation and if they had not been given compensation for their eviction, they may take recourse to an appropriate proceeding in terms of the land Acquisition Act.
17. It has to be borne in mind that the Notification issued under the Land Acquisition Act is not in question. The fact that the land has been acquired for a public purpose has also not been questioned. The validity or otherwise of the acquisition proceedings is also not in question which has been completed and possession had already been taken.
18. A consent decree as is well known merely contains an agreement between the parties with the seal of the Court superadded to it. An agreement which has been filed by the parties in a Court of law has, therefore, to be enforced in the same manner in respect of the agreement which the parties entered into out of Court. In Baldevdas Shivlal & Anr. v. Flimistan Distributors (India) P. Ltd. & Ors. wherein it has been held :--
"A consent decree, according to the decisions of this Court, does not operate as res judicata, because a consent decree is merely the record of a contract between the parties to a suit, to which is superadded the seal of the Court."
19. The consent decree does not show any stipulation as regard violation of the fundamental right or other statutory right of the petitioner. Thereby merely a scheme had been drawn up which did not have any constitutional or statutory backing. Had the matter been fought out in the Court, the Court keeping in view the provision of the Land Acquisition Act in exercise of its writ jurisdiction might not have passed such an order on merit.
20. The petitioners in the writ application complained of the violation of the agreement containing the scheme of rehabilitation. Thus, such violation of a contract cannot give rise to an adjudication in a writ proceedings, more so when the Court is not in a position to go to the nitty-grity thereof in a writ proceeding. The answer to the questions which have been posed in this proceedings, in our opinion, must be rendered in the negative.
21. It is not a case where on the basis of allegation made in the writ application itself the Court can arrive at a finding that the respondents have violated the fundamental rights of the appellants as enshrined under Articles 14, 19(1)(g) and 21 of the Constitution of India.
22. The respondents in their affidavit clearly stated about the adherance of the terms of the settlement and tried to explain their situation. They have not backed out from the rehabilitation scheme. In fact they intend to adhere to it and had taken all measures in respect thereof. But the main thrust of the writ petitioners in the writ application is that instead of rehabilitating them on the G.T Road the same being done in a building in Dol Gohinda Singh Lane which is not the G.T. Road.
23. Even if a suit for specific performance of said agreement was filed, the Court in view of section 20 of the Specific Relief Act, 1963 might not have exercised its discretion, in the event it came to the conclusion that it was not possible for the respondents to strictly adhere to the terms of settlement because of the situation beyond their control and in such an event those shopkeepers who were not inclined to lake benefit of the rehabilitation scheme might have been compensated on monetary terms. The writ proceedings, in our considered opinion, is not a proper forum where such a question should be allowed to be gone into.
24. The question as to whether a writ Court will interfere in a matter governing contractual Held will depend upon the fact situation. Where the contract is at the threshhold or where the termination of a contract is dehors the contract or vlolative of Article 14 of the Constitution of India, the writ Court may exercise its discretion. But it will not do so in a case where the dispute operates only in a private law field and while doing so, the Court has to go into a disputed question of fact.
25. In Mohammed Hanif v. The State of Assam , the Court merely laid down certain general principles and held :--
"It is true that the jurisdiction of the High Court under Article 226 is an extraordinary Jurisdiction vested in the High Court not for the purpose of declaring the private rights of the parties but for the purpose of ensuring that the law of the land is implicitly obeyed and that the various tribunals and public authorities are kept within the limits of their jurisdiction. In other words, the Jurisdiction of the High Court under Article 226 is a supervisory Jurisdiction, a jurisdiction meant to supervise the work of the tribunals and public authorities and to see that they act within the limits of their respective jurisdiction."
26. Furthermore, in Hanifs case (supra) it was observed that the appellant in that case was not trying to enforce a mere contractual right by way of a writ petition under Article 226 of the Constitution.
27. In M/s. Poddar Steel Corporation v. M/s. Ganesh Engineering Works and Ors. , it has been held :--
"As a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or on significance. The requirements in a tender notice can be classified into two categories--those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases."
28. In LIC of India v. Consumer Education & Research Centre , it has been held :--
"This Court has rejected the contention of an instrumentality or the State that its action is in the private law field and would be immune from satisfying the tests laid under Article 14. The dichotomy between public law and private law rights and remedies, though may not be obliterated by any strait-jacket formula, it would depend upon the factual matrix. The adjudication of the dispute arising out of a contract would, therefore, depend upon facts and circumstances in a given case. The distinction between public law remedy and private law field cannot be demarcated with precision. Each case will be examined on its facts and circumstances to find out the nature of the activity, scope and nature of the controversy. The distinction between public law and private law remedy has now become too thin and practicably obliterated."
29. In LIC's case (supra) also the terms of a contract when the concluded contract was entered into were directed to be enforced in the peculiar fact situation obtaining therein.
30. The distinction, on private law field and public law field has been insisted in the subsequent several decisions of the Apex Court.
31. In Common Cause, A Registered Society v. Union of India & Ors. , the Apex Court was reviewing its earlier decision in Common Cause, A Regd, Society v. Union of India reported in 1996(6) SCC 530.
32. In Common Cause (supra) the Court was not concerned with the question which were raised herein but it is pertinent to mentioned that it referred to LIC of India v. Escorts Ltd. but stated that public law field is over expanding in operational dimension. The said decision has no direct application to the fact of the instant case.
33. In Style (Dress Land) v. Union Territory, Chandigarh & Ann , the Apex Court was concerned with a question as to whether an order of stay obtained by a party conferred upon him any additional right. There is no quarrel with the general proposition that the Government is not and should not be free as an individual in selecting the receipt for largesse. In the instant case, however, the question is Just the opposite. While distributing largesse if it is not making indiscrimination or acting arbitrary. The question herein is as to whether in larger public interest the Court would allow the respondent-Corporation to make a small deviation from its earlier commitment, if any?
34. In State of West Bengal & Ors. v. Smt. Tanwir Bano reported in Cal LT 1998(1) HC 339, a Division Bench has held that the Court's power under Article 226 of Constitution of India is discretionary. Even if there is some infraction of legal right of a person and there is injury which, ordinarily, the Court would not ignore and tend to rectify while exercising power under Article 226 of the Constitution of India, may not in a proper case be available. The learned Judged proceeded to observe 'the Court must see. when weighed against public interest it should be protected or not. In other words, for the reasons or equity and public interest the Court can decline to exercise its power under Article 226 of the Constitution'.
35. In Re. P.P. Raja Reddi , the Court refused to exercise its discretion keeping in view the larger public interest. It was also held that the Court will have no Jurisdiction to entertain a writ application in a matter governed by contract qua contract as in such a matter public law element is not involved.
36. In Asia Foundation & Construction Ltd. v. Trafalgar House Construction (I) Ltd. & Ors. , the Court relied upon its earlier decision in Tata Cellular v. Union of India, as also Food Corpn. of India v. Kamdhenu Cattle Feed Industries upon which Mr. Pal had placed reliance upon referred to :--
"Therefore, though the principle of judicial review cannot be denied so far as exercise of contractual powers of Government bodies are concerned, but it is intended to prevent arbitrariness or favouritism and it is exercised in the larger public interest or if it is brought to the notice of the Court that in the matter of award of a contract power has been exercised for any collateral purpose."
37. In the Gujarat State Financial Corporation v. M/s. Lotus Hotels Pvt. Ltd. , the Court held that the State Financial Corporation had entered into an agreement to advance the loan in performance of the statutory duty cast on the Corporation by the statute under which it is connected and set up. The contract being statutory in nature was, thus, directed to be enforced.
38. In Ronix Rolymers Private Limited & Anr. v. State of West Bengal & Ors. , this Court distinguished Kalyani Spinning Mills Ltd. v. Smt. Sudha Sashikant Shroff and relying upon the decisions of Dr. Umakant Saran v. State of Bihar , The Divisional Forest Officer v. Bishwanath Tea Co. Ltd., , State of Gujarat v. Meghji Pethraj Shah Charitable Trust , Food Corporation of India v. Jagannath Dutta , Assistant Excise Commissioner v. Issac Peter, . M/s. Industrial Fuel Company Private Ltd. v. M/s. Heavy Engineering Corporation Ltd. reported in (1993)2 BLJR 1308, State of UP. v. Bridge & Roof Co. (India) Ltd. , Hindustan Petroleum Corporation Ltd. v. Shyam Sundar Baneriwala reported in 1988(2) CHN 233 held :--
'In that view of the matter, no Writ of Mandamus can be issued upon the respondents to accept the products of the petitioner at this stage. It is now well known that a Writ of Mandamus will not issued to enforce a private contract."
39. This aspect of the matter has also recently been considered in Air India Limited v. Cochin International Airport Authority reported in Judgment Today 2000(1) 481.
40. It is also not correct to contend that a writ petition is maintainable only for enforcing a legitimate expectation. A distinction has to be made between a legitimate expectation and mere anticipation.
41. In Madras City Wine Merchants' Association v. State of Tamil Nadu , it has been held :--
"From the above it is clear that legitimate expectation may arise--
(a) if there is an express promise given by a public authority; or
(b) because to the existence of a regular practice which the claimant can reasonably expect to contine;
(c) such an expectation must be reasonable. However, if there is a change in policy or in public interest the position is altered by a rule or legislation, no question of legitimate expectation would arise."
42. In Gaziabad Development Authority v. Delhi Auto and General Finance Pvt. Ltd., , the Supreme Court held :--
"It is difficult to appreciate how the change of land use of the area in the Master Plan from 'recreational' to 'residential' could give rise to a legitimate expectation in a private coloniser owning land in that area that he could construct a housing colony therein simply because he had submitted some plan for approval, when grant of the permission under section 15 of the U.P Act is not automatic and the statute permitted amendment of the Master Plan by change of the land use even thereafter. The mere fact that the area was shown originally as meant for recreational use, shows that reversion to the original land use is equally permitted by the statute. No legitimate expectation of the kind claimed by these private colonisers could arise on these facts and in a situation like this clearly contemplated by the Statute itself."
The Supreme Court also held :--
"The aforementioned decision, therefore, clearly lay down the law that the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot interfere in a matter of contract or demand of money under a contract unless there exists a public law element."
43. It was held that the case must involve a constitutional issue so as to make the same amenable to the Jurisdiction of this Court.
44. It is interesting to note that in Union of India v. Hindusthan Development Corporation, reported in , the Apex Court while considering the question of legitimate expectation held :
"For legal purposes the expectation cannot be same as an anticipation. It is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right. However, earnest or sincere a wish, a desire, a hope may be and, however, confidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences."
45. It was further observed :--
"As countenanced in Attorney General for New South Wales' case the Court should restrain themselves and restrict such claims duly to the legal limitations. It is a well meant cautions. Otherwise a resourceful litigant having vested interests in contracts licences etc. can successfully indulge in getting welfare activities mandated by a directive principles thwarted to further his own interests. The caution particularly in the changing scenerio, becomes all the more important."
46. In A.C. Roy v. Union of India , it has been held that doctrine of 'legitimate expectation' has no application in a contractual field.
47. The principles of legitimate expectation cannot apply in a contractual field in view of the fact that a contract when granted cannot stand on a higher pedestral than a legitimate expectation. As soon as a contract becomes concluded, the expectation, if any, comes to an end: whereafter the parties will be bound only by the terms thereof. If the doctrine of legitimate expectation is invoked in the matter of enforcement of condition of contract, the same would result in an absurdity, as it is well known that this Court cannot grant a decree for specific performance of contract. Legitimate expectation does not confer a right, but Article 14 of the Constitution does. Thus, this Court may invoke its jurisdiction in such matter only when the action of the respondent is found to be arbitrary and vlolative of Article 14 of the Constitution. No person can have a legitimate expectation that terms of the contract would be scrupulously observed. No other or higher right can be claimed by any person.
48. In Nirmal Singh and Ors. v. State of Punjab or in M/s. Doki China Gurubalu. and Sons & Co. v. State , the questions which have been raised herein have not been raised. In Orissa case, the Division Bench sought to explain the decision of the Supreme Court in M/s. Radhakrishna Agarwal v. State of Bihar which it could not have done.
49. In Peerless Drive Ltd. & Anr. v. Union of India & Ors. reported in 1993(2) CHN 362, the Court proceeded on the basis of the legitimate expectation which, indicated hereinbefore, has substantially been deviated from by the Supreme Court.
50. In Jute Corporation of India Ltd. v. Nellimarie Jute Mills Co. Ltd. & Anr. reported in Cal. LT 1993(1) HC 79, the Court held that termination of contract was by way of an afterthought and, thus, de hors the contract. The reliefs were granted on the ground that the actions on the part of the respondents were mala fide.
51. Monoranjan Das v. The State reported in Cal. LT 1994(1) HC 11 deals with a criminal matter and it is not understood as to why the said decision has been cited.
52. We are, therefore, of the opinion that it is not a fit case where this Court could entertain a writ petition, particularly in view of the following decisions :--
53. In Jaykrishna Basu v. State of West Bengal reported in Cal. LT 1998(1) HC 50, the Court observed :--
"This aspect of the matter has also been recently considered in Subhashgir Kushalgir Gosavl v. Special Land Acquisition Officer & Ors. in the following terms :--
'But it is for the Government to take a decision and it is not for the Court to decide as to which place is more convenient. Since the Government have taken a decision that acquiring the land for extension of the bus stand and bus depot is in the public interest, it cannot be said that the exercise of the power is arbitrary'."
54. In 12, IC Bose Road Tenants' Association V. Collector of Howrah & Ors. , a Division Bench of this Court held :--
"The condition precedent to the granting of any relief under Article 226 is the existence of a fundamental or legal right of a person and the infringement of such right. The right which is the foundation of an application under Article 226 is a personal and individual right. The legal right may be a statutory right or a right recognised by the law. The principles of law in this regard have been recently restated by the Supreme Court in Muni Subrat Jain v. State of Haryana. . In that case, the Supreme Court has observed that it is elementary that no one can ask for a mandamus without a legal right."
55. In PTR Exports (Madras) Pvt. Ltd. & Ors. v. Union of India & Ors. , it has been held :--
"It would, therefore, be clear that grant of licence depends upon the policy prevailing as on the date of the grant of the licence. The Court, therefore, would not bind the Government with a policy which was existing on the date of application as per previous policy. A prior decision would not bind the Government for all times to come. When the Government is satisfied that change in the policy was necessary in the public interest, it would be entitled to revise the policy and lay down new policy. The Court, therefore, would prefer to allow free play to the Government to evolve fiscal policy in the public interest and to act upon the same. Equally, the Government is left free to determine priorities in the matters of allocations or allotments or utilisation of its finances in the public interest. It is equally entitled, therefore, to issue or withdraw or modify the export or import policy in accordance with the scheme evolved."
56. In Sodan Singh, v. Now Delhi Municipal Committee & Anr. reported in AIR 1939 SC 1988. the Apex Court clearly held that all business must be subject to regulation.
57. In ITC Bhadrachalam Paperboards & Anr. v. Mandal Revenue Officer, A.P & Ors. reported 'In , it has been held :--
"For a proper appreciation of this contention, it is necessary to keep in mind the distinction between an administrative Act and an act done under a statute. If the statute requires that a particular act should be done in a particular manner and if it is found, as we have found hereinbefore, that the act done by the Government is invalid and ineffective for non-compliance with the mandatory requirements of law, it would be rather curious if it is held that notwithstanding such non-compliance, it yet constitutes a 'promise' or a 'representation' for the purpose of invoking the rule of promissory/equitable estoppel. Accepting such a plea would amount to nullifying the mandatory requirements of law besides providing a licence to the Government or other body to act ignoring the binding provisions of law. Such a course would render the mandatory provisions of the enactment meaningless and superfluous. Where the field is occupied by an enactment, the executive has to act in accordance therewith, particularly where the provisions are mandatory in nature. There is no room for any administrative action or for doing the thing ordained by the statute otherwise than in accordance therewith. Where, of course, the matter is not governed by a law made by a competent legislature, the executive can act in its executive capacity since the executive power of the State extends to matters with respect to which the legislature of a State has the power to make laws (Article 162 of the Constitution). The proposition urged by the learned counsel for the appellant falls foul of our constitutional scheme and public interest. It would virtually mean that the rule of promissory estoppel can be pleaded to defeat the provisions of law whereas the said rule, it is well settled, is not available against a statutory provision. The sanctity of law and the sanctity of the mandatory requirement of the law cannot be allowed to be defeated by resort to rules of estoppel. None of the decisions cited by the learned counsel say that where an act is done in violation of a mandatory provision or a statute, such act can still be made a foundation for invoking the rule of promissory/equitable estoppel. Moreover, when the Government acts outside its authority, as in this case, it is difficult to say that it is acting within its ostensible authority. If so, it is also not permissible to invoke the principle enunciated by the Court of appeal in Wells v. Minister of Housing & Local Govt. (1967(2) All ER 1041)."
58. In Shrijee Sales Corporation and Anr. v. Union of India , it has been held :--
"The next question is whether the fact that the Notification No.66 mentioned the period during which it was to remain in force, would make any difference to the situation. In other words, could it be said that an exemption notified without specifying the period within which the exemption would remain in force, would be withdrawn in public interest but not the one in which a period has been so specified? Once public interest is accepted as the superior equity which can override individual equity, the principle should be applicable even in cases where a period has been indicated. The Government is competent to resile from a promise even if there is no manifest public interest involved, provided, of course, no one is put in any adverse situation which cannot be rectified. To adopt the line of reasoning in Emmanuel Ayodeit Ajayi v. Briscoe (1964(3) All ER 556) quoted in M.P Sugar Mills even where there is no such overriding public interest, it may still be within the competence of the Government to resile from the promise on giving reasonable notice which need not be a formal notice, giving the promisee a reasonable opportunity of resuming his position, provided, of course, it is possible for the promisee to restore the status quo ante. if, however, the promises cannot resume his position, the promise would become final and irrevocable."
59. We, therefore, having considered all pros and cons of the matter particularly having regard to the greater public interest and involvement of a disputed question of fact hold that the learned trial Judge has rightly refused to exercise its discretion to entertain the writ application. This appeal is, therefore dismissed but in the facts and circumstances of this case there will be no order as to costs.
M.H.S Ansari, J.
60. I agree.
61. Appeal dismissed