Gurdev Singh vs Chandigarh Administration

V.K. Jhanji, J.—Chandigarh Administration in order to provide incentives to the individual acceptors of terminal method of family planning in Union Territory, Chandigarh, framed a scheme dated 12.9.1986 called ''Chandigarh Family Welfare Programme Scheme'' (hereinafter called the ''Scheme''). The said scheme was published in the Chandigarh Administration Gazette dated 1.10.1986. Under this Scheme a resident of Union Territory, Chandigarh, who accepted the terminal method of family planning was entitled for the issuance of a green card. The scheme was to come into force with effect from the date of publication in the official gazette and the persons operated upon on or after the said date were to be issued green cards. Certain benefits were to be provided to holders of green cards under clause 7 of the said scheme. One of the benefits was that Chandigarh Housing Board shall reserve 5 per cent of the houses constructed by it under all Schemes like low income group, middle income group and high income group. In case number of green card holders exceeded 5 per cent, then allotment of houses was to be made by draw of lots.

Petitioner who is resident of Chandigarh was motivated by the Scheme and accordingly underwent Vasectomy operation on 11.3.1987 in General Hospital, Sector 16, Chandigarh, and was issued a green card on 28.4.1987. On 11.8.1988, petitioner submitted an application to the Chairman, Chandigarh Housing Board (hereinafter called the ''Board'') requesting for allotment of a house/flat in terms of clause 7(a) of the scheme. As no action was taken on his application, the petitioner sent two reminders dated 31.8.1988 and 20.9.1988. The petitioner thereafter wrote letters dated 7.7.1988, 22.9.1988 and 28.9.1988 to respondent No. 3 requesting him to get the petitioner allotted a house from the Board in accordance with the provisions of the Scheme. Respondent No. 3 vide letter dated 9.9.1988 (Annexure P2) brought to the notice of the Finance Secretary, Chandigarh Administration, Chandigarh, that some of the green card holders have complained that the Board is not honouring the commitment to allot of houses on priority basis to green card holders which was agreed to by the Board when the Scheme was launched and the notification to that effect issued. The Board was asked to issue necessary instructions so that in future no chance is given to the public for such complaints. However, no action whatsoever was taken either by the Board of the Chandigarh Administration to allot a house/flat to the petitioner who otherwise was entitled under the scheme for such allotment. The petitioner was thus left with no other alternative but to file the present writ petition seeking a Writ of Mandamus for a direction to the respondents to allot a flat/house to the petitioner in terms of the Scheme.

In the return filed on behalf of respondents No. 1 an 3, entitlement of the petitioner under the Scheme is not denied but it has been stated that no legal right of the petitioner has been violated and thus he is not competent to invoke the writ jurisdiction of this Court. It has been further stated that proposal for amending the Chandigarh Housing Board (Allotment, Management and Sale of Tenements) Regulations, 1979 (hereinafter called the ''Regulations'') is lying pending with the Chandigarh Administration and till the Regulations are amended, no allotment of house/flat to green cadre holders can be made but the petitioner shall be allotted a house/flat as and when necessary amendents are made in the said Regulations.

Respondent No. 2 in its return has stated that the Board has not made any commitment for allotting any house to green card holders as a special category nor do the Regulations provide for any reservation for such a category. In the absence of any provisions in the Regulations, no allotment of a house can be made under a special category.

Learned counsel for the petitioner submitted that the respondents are legally duty bound to honour their commitment made under the Scheme as contained in Annexure P 1 and are liable to make allotment of a houses/flat to the petitioner for his having undergone the Vasectomy operation in accordance with the Scheme.

On the other hand, learned counsel for respondents No. 1 and 3 contended that in the absence of any statutory provisions, no mandate couldbe issued to the Board to allot any house to the petitioner under the said Scheme. Though respondent No. 2 has filed a written statement but at the time of hearing, nobody appeared on behalf of the Board.

The only question which arises for our consideration in this writ petition is as to whether an assurance given by the Chandigarh Administration that the petitioner wouldbe entitled to certain benefits as provided in the Scheme including that of allotment of a house/flat on priority basis, couldbe enforced against the respondents by invoking the doctrine of promissory estoppel. It is now well settled that rule of promissory estopple is a rule of equity and is not founded upon any right, statutory or contractual. The Supreme Court in Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh and others,AIR 1979 S.C. 621 considered in detail the meaning of promissory estoppel and as to whether the State is bound and if so, to what extent it is bound by the principle of promissory estoppel. After dealing with the entire case law on the subject including the celebrated decision in Union of India v. AngloAfghan Agencies,AIR 1968 S.C. 718, the Supreme Court ruled as under :

"The law may, therefore, now be taken to be settled as a result of this decision, that where the Government makes a promise knowing or intending that it wouldbe acted on by the promise and, in fact, the promises, acting in reliance on it, alters his position, the Government wouldbe held bound by the promise and the promise wouldbe enforceable against the Govt. at the instance of the promisee, 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. It is elementary that in a republic governed by the rule of law, no one, howsoever high or low, is above the law. Every one is subject to the law as fully and completely as any other and the Government is no exception. It is indeed the pride of constitutional democracy and rule of law that the Government stands on the same footing as a private individual as far as the obligation of the law is concerned; the former is equally bound as the latter. It is indeed difficult to see on what principle can a Government, committed to the rule of law, claim immunity from the doctrine of promissory estoppel ? Can the Government say that it is under no obligation to act in a manner that is fair and just or that it is not bound by the considerations of honesty and good faith ? Why shouldthe Government not be held to a high standard of rectangular rectitude while dealing with its citizens'' ? There was a time when the doctrine of executive necessity was regarded as sufficient justification for the Government to repudiate even its contractual obligations but, let it be said to the eternal glory of this Court, this doctrine was emphatically negatived in the AngloAfghan Agencies case (AIR 1968 S.C. 718) and the supremacy of the rule of law was established. It was laid down by this Court that the Government cannot claim to be immune from the applicability of the rule of promissory estoppel and repudiate a promise made by it on the ground that such promise may fetter its future executive action. If the Government does not want its freedom of executive action to be hampered or restricted, the Government need not make a promise knowing or intending that it wouldbe acted on by the promisee and the promise wouldalter his position relying upon it. But if the Government makes such a promise and the promisee acts in reliance upon it and alters his position, there is no reason by the Government shouldnot be compelled to make good such promise like any other private individual."

In view of the aforesaid pronouncement of the Supreme Court in M/s. Motilal Padampat Sugar Mills'' case (supra), it is not necessary that the parties invoking the principle of promissory estoppel shouldsuffer detriment or loss. For applying the principle of promissory estoppel, it is enough if the aggrieved party has brought about a change in the original position acting upon the representation made by the other party. In the present case, a categoric representation was made by the Health Secretary, Chandigarh Administration, Chandigarh, on behalf of the Chandigarh Administration through the Scheme which was duly published in the Chandigarh Administration Gazette dated 1.10.1986 that the Board shall reserve 5 per cent of the houses constructed by the Board under all Schemes for allotment to green card holders. There can be no doubt that the petitioner, in fact, relying on this representation of the Chandigarh Administration, underwent the Vasectomy operation so as to make himself entitled for the allotment of a house/flat on priority basis.

Learned counsel for the respondents contended that the doctrine of promissory estoppel has no application in the present case because there is no statutory provision under which such a benefit couldbe granted. He has further contended that disposal of houses/flats by the Board has been regulated by the Regulations and there being no provision in the said Regulations for allotment of a house/flat to green card holders, the Board cannot be compelled to reserve 5 per cent houses constructed by it for allotment to green card holders. In support of this, reliance has been placed upon the decision given by J.V. Gupta, J. (as his Lordship then was) in Civil (Bal Writ Petition No. 8313 of 1988 Krishan v. Union Territory, Chandigarh and another) on May 4, 1989 and Paradise Printers v. Union Territory, Chandigarh 1988(1) RCR(Rent) 32 (SC) : 1988(1) RRR 12 (SC) : P.L.R. 1988(1) S.C. 400.

We totally fail to see how it is open to the respondents to say that the benefit granted by the state itself was beyond the powers of the State or how the State can say so either. In Civil Writ Petition No. 8313 of 1988, this Court did not grant relief to green card holders as J.V. Gupta, J. was of the view that in the absence of any statutory provisions, no mandate couldbe issued to the Board to allot any house under the Scheme. However, the petitioner in that case was allowed to seek his remedy with the Chandigarh Administration. Thus, in our view, the decision given in the above said case is of no help to the respondents as the petitioner in the present case is primarily asking this Court to direct Chandigarh Administration to fulfil its commitment made under the Scheme. The judgment in Paradise Printers'' case(supra) is clearly distinguishable in the facts and circumstances of this case inasmuch as there was no specific assurance or representation made by the authorities promising to allot sites applied for. The doctrine of promissory estoppel was not applied in that case as the Supreme Court was of the view `that the authorities cannot give assurance contrary to the statutory rules.'' However, in the present case, this is not the position because Regulation 26 of the Regulations empowers the Chandigarh Administration to make allotment under its discretionary quota. For facility of reference, Regulation 26 is reproduced as under :

"26. Discretionary Allotments. The Administration/Chief Commissioner may in his discretion allot 5 per cent of the total number of dwelling units/flats under any scheme to any person. Similarly, the Board may in their discretion allot 5 per cent of total number of dwelling units/flats under any scheme to any person."

In view of the above mentioned provision of discretionary allotment, respondent No. 1 can allot 5 per cent of the total number of dwelling units/flats under any Scheme to any person, Thus, it is not open to the respondents to contend that there is no statutory provision for allotment of houses/flats to green card holders. The entitlement of the petitioner under the Scheme has not been denied by the respondents. Rather, it has been stated that as and when an amendment is made in the Regulations, the petitioner shall be allotted a house/flat as per conditions numerated in the Scheme.

We are, therefore, of the view that in the present case, the essential ingredients for invoking the rule of promissory estoppel are satisfied and the Chandigarh Administration can be compelled to carry out the commitment made by it. Accordingly, we allow this writ petition and direct respondent No. 1 to allot a house/flat to the petitioner on priority basis as per his entitlement under the Scheme out of discretionary quota by exercising discretion under Regulation No. 26 of the Regulations. However, we make it clear that in case the Chandigarh Administration finds that in larger public interest, it is no more possible to meet its commitment under the Scheme, such a Scheme may not be continued any further.