Shri Rishi Lal Wadhera and Others vs The State of Haryana and Others

M.M. Punchhi, J.—"Promissory estoppel", interchangeably "equitable estoppel", has been the sheet-anchor of the claim of the petitioners invoking jurisdiction of this Court under Article 226 of the Constitution of India. To defeat such claim, the State of Haryana has resorted to alternates ranging from exercise of sovereign power to flexibilities. The doctrine of "promissory estoppel" essentially being one of good conscience and rooted in morality would require to be invoked in a set of facts. Let the facts giving rise to the present petition be taken note of.

The five petitioners aver that they are residents of Sector-15 of Industrial Estate, Faridabad. According to them, Faridabad Complex has been developed as an industrial and a residential complex controlled by an Estate Officer. Sector-15 thereof was claimed as exclusively meant for residence and a small market was to be set up for the residents, according to the Scheme of the Development of the Estate. The scheme was claimed to be embodied in the plan attached with the petition marked Annexure P. 1. That plan ex facie carries no written representations in the form of undertakings. It is the lay out plan of Sector-15 prepared by a Government functionary. It contains, amongst other things, a Schedule of plots and a legendary item of a Shopping Centre, drawn approximately in the middle. The claim of the petitioners is based on the drawings of plan, Annexure P. 1, as it was stated to have been issued and adopted by the respondents-the State of Haryana; the Chief Administrator, Haryana Urban Development Authority and the Estate Officer, Haryana Urban Development Authority, Faridadbad. The drawings in the place are claimed by the petitioners to be reflective of such conduct, action and consideration of the respondents that the same could not be altered, or not stuck to, to the disadvantage of the petitioners who have purchased residential plots in Sector 15 and had raised constructions thereon. It was claimed that the plan issued by the respondents was sacrosanct and unalterable.

The petitioners'' need to file the present petition arose on account of a set of events. The State of Haryana carved out a new district of Faridabad out of the territories of erstwhile district of Gurgaon and shifted its district headquarter there sometime in 1979. The Haryana Urban Development Authority (for short "HUDA"), an Authority established under the Haryana Urban Development Authority Act, 1977 (Haryana Act No. 13 of 1977), had during this while constructed 13 shops in the Shopping Centre in Sector 15. It is claimed by the petitioners that the State of Haryana had asked the Chief Administrator, HUDA (respondent No. 2) to locate the civil and criminal Courts in those 13 shops, to which apparently the respondents inter-se were in agreement. It is claimed by the petitioners that accommodating the Courts, in the heart of residential accommodation would be against the provisions of the Scheme of the Development of the Estate, and also against the assurance given by the authorities that the Sector would only be used for residential purposes for which small market would be provided to cater to the needs of the residents. The appurtenant uses, like the Bar Room, Judicial Lock-up and other ancillary offices with the Judicial Courts, was claimed by the petitioners to be depriving them of their privacy, calm and decency. Fear was expressed in the petition that neither would any shopkeeper be willing to come and man the Shaping Centre, which would mean depriving the residents of shopping facility, nor would it he possible for ladies to move about freely when all sorts of people, including criminals, were likely to throng those buildings. In a nut-shell, the location of District Courts in the Shopping Centre was claimed as likely to create an intolerable nuisance for the residents. Being against the scheme of Development of the Estate as also subject to "promissory estoppel" the intended change of the Scheme led to the filing of the present petition. The petitioners prayed for the issuance of a suitable writ, order or direction requiring the State Government to desist from locating the district Courts in the Shopping Centre.

In a join return filed by the respondents, preliminary objections have been taken in the first instance. Maintainability of a joint petition at the instance of the petitioners has been questioned on the ground that each of them was allotted plot by different allotment orders. The second objection raised was that the HUDA is the absolute owner of 6 shop-cum-flats in Sector 15 and that as owner could use its immovable property the way it liked. Additionally, it was pleaded that the intended user or arrangement was only provisional till the construction of a new Judicial Complex. The third objection raised was that the Punjab Government, vide notification dated 19th January, 1966, had issued a Final Development Plan in exercise of its powers u/s 5(7) of the Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963 (hereinafter referred to as "the Controlled Areas Act"). This published Final Development Plan carried restrictions and conditions self-embodied for the controlled area. In terms thereof, Sector 15 was earmarked as a residential zone. All the same, a residential zone could, amongst others, make provisions for public utility building and commercial and professional offices besides residences. It was pleaded that Courts could squarely be termed public utility offices as also commercial and professional offices, since the lawyers too would be practising there.

On merits, the respondents pleaded that the District of Faridabad was created in August, 1979 and obviously the question of making provision for as Administrative Complex of district level did not arise before that date. It was also averred that the State of Haryana and the Punjab and Haryana High Court made Faridabad a separate Sessions Division which would now necessitate the location of a District Judge therein and his being aided by one or two Additional District Judges. There would also be other Courts of the Senior Sub Judge and the Chief Judicial Magistrate at the district headquarters. The respondents pleaded that after the creation of the Sessions Division, it became necessary for the State Government to provide accommodation for those Charts. The feasibility of locating the Judicial Courts in various sectors was examined by the State, but suitable buildings and suitable sites were not available elsewhere, except in Sector 15, where 6 shop-cum-flats built by the HUDA were lying vacant and those could easily be delivered to the Deputy Commissioner, Faridabad, to facilitate functioning of the Judicial Courts. It was further averred that their charge was taken by the Deputy Commissioner pursuant to the need and those buildings were suitably altered, at huge costs, to be used as Court rooms. Out of the 13 shops in Sector 15, only 6 shop-cum flats were admitted to have been earmarked for the purpose. The respondents disputed the claim of the petitioners that such location of Courts was against the Scheme of Development of Sector 15. Additionally, lot of space on the front sides and back yards of the buildings had been left open, and nothing was going to disturb the residents of Sector 15 in any manner. The respondents also disputed the averment of the petitioners that any assurance was given to them either orally or in writing that this Sector 15 would only be used for residential purposes with a provided market. Relying on plan, Annexure P. 1, it was claimed that there was lot of space in the Sector which was reserved for undetermined use and that could be utilised for setting up of Judicial Courts. Pointed reliance was also placed by the respondents on the terms embodied in the different allotment letters issued to the allottees claiming that no such assurance was embodied in those allotment letters binding the Urban Estates Department (the predecessor of HUDA) or HUDA to the Sector 15 exclusively for residential purposes with a Shopping Centre. Strength for the plea was drawn from the provisions of the HUDA Act, 1977 and the regulations framed thereunder.

The respondents further pleaded that the Shopping Centre built by HUDA for the present had been decided not to be auctioned or allotted to any private individual. It was claimed that there were other shopping centres in the adjacent sectors which catered to the needs of residents of Sector 15. Separate distances were also given of the respective houses of the petitioners from the Shopping Centre to show that the privacy, calm and decency of the petitioners, if any, were not likely to be affected. Other inconveniences enumerated by the petitioners were denied in sequence. It was reiteratedly stressed that there was no "promissory estoppel" in the form of any oral or written assurance and that the present arrangement was only temporary till a new Judicial Complex was constructed.

Though the frame of the writ petition gives rise to the impression that the petitioners were confronting the respondents with a plea of "promissory estoppel" self revealing from plan, Annexure P. 1, issued by the respondents in pursuit of commercial interests, the return filed by the respondents topples that stance by pleading that the Plan, Annexure P. 1, was statutory, deriving parentage from the Controlled Areas Act. And further there being no oral or written assurance, the estoppel, if any, would have to be spelled out from the plan, Annexure P. 1, alone. Such inter-gripped pleas prompted Mr. K.S. Thapar to raise before us the following three contentions:-

(1) That Annexure P. 1 was a statutory plan. The authority which is entrusted with the execution of the plan cannot be permitted to violate its provisions, or to go against it.

(2). That the publicised plan. Annexure P. 1, gives details of sites on which residential buildings can be built and others to be located in Sector 15. The conduct of earmarking of such residential plots and contradistinctly the Shopping Centre was in the nature of a "promissory estoppel" by conduct and acquiescence, and now the authorities could not go back when after the petitioners have built their houses. Thus, the shops had to be used as shops alone and for none other And that the locating of the Courts in the Slopping Complex was out of question.

(3) That the terms of the "promissory estoppel" and assurances flow from the drawings of plan, Annexure P. 1, alone and none other.

Mr. Thapar, learned counsel for the petitioners, relied on Daya Swamp Nehra and others v. The State of Punjab AIR 1964 P&H 533 and Shri K. Ramadas Shenoy Vs. The Chief Officers, Town Municipal Council, Udipi and Others,

On the other hand, Mr. Hira Lal Sibal, learned counsel for the respondents, urged that the matter in controversy had assumed two facets'' one raised in the petition which was of "promissory estoppel" pure and simple, and the other raised in the written statement to defeat that claim. Elaborating the point it was contended by him that since the petitioners had chosen to plead "promissory estoppel" alone, they should rot be permitted to adopt the stance taken in the written statement that the said Scheme was statutory or that the intended action of the State would tend to violate the provisions of the Controlled Areas Act, the rules made thereunder and the Statutory Scheme (plan, Exhibit P. 1). And if the petitioners were to confine to their own pleadings, he stressed concededly there was no written or oral promise made by the respondents except what was inherent in the drawing in the plan. Exhibit P. 1, in accordance with which the Shopping Complex had been built by the HUDA. He further contended that the Scheme, Exhibit P. 1, only contemplated that a particular kind of buildings would be constructed on the plots so earmarked and it was the conceded case of the parties that the shops had been constructed in accordance therewith. What (sic) the petitioners, according to him, was the intended user of the said shops. He urged that the intended user was only a stop gap arrangement till the regular Judicial Complex came into being. On the second facet, it was contended that the provisions of the Controlled Areas Act and the rules made thereunder permitted change or adopted user of the said shops for the purposes of Judicial Courts. It was stressed that neither had the petitioners raise any such plea in their petition to point out any suggested violation and they cannot be allowed to raise the plea purely on legalistics. He relied on The Union of India and others v. M/s. Anglo Afghan Agencies etc. AIR 968 S.C. 718, Excise Commissioner U.P., Allahabad etc. v. Ram Kumar etc. etc. AIR 1976 S.C. 2232, Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Others, , Des Raj Juneja and others v. Union of India ILR (1979) P&H. 388 a judgment of this Court, and finally Jit Ram Shiv Kumar and Others Vs. State of Haryana and Others, for the first facet.

At the outset, we may mention that we would not like to non-suit the petitioners on technicalities. Undoubtedly, the matter has been raised by the petitioners in one form, but due to the written statement, it has assumed another. The object of pleadings of the parties being to bring to surface the matters in issue, and since they have in the present case been so surfaced, we would rather channelise our efforts to lead towards effectual settlement. Let us examine both the points.

That the Scheme or plan, whatever be its nomenclature, is statutory in nature is not in dispute. It is equally not in dispute that the site marked therein as Shopping Centre has been utilised by the HUDA in constructing shop-cum-offices thereon. Whether the petitioners can insist that the shop cum-offices earmarked by the Chief Administrator, respondent No. 2, be not utilised for Judicial Courts and does such intended user and to violate the controlled Areas Act or the rules made thereunder, and with what consequences? In Daya Swarup Nehra''s case (supra), a Division Bench of this Court on a cartful analysis of the Capital of Punjab (Development and Regulation) Act, 1952 and the rules made thereunder, construed in the background of statutory Scheme that the installation of a petrol pump on a site shown as public space or open space, in a "Zoning Plan" of the Capital of Chandigarh, could not be allowed to be installed. It was argumentatively put in that case that variance in the "Zoning Plan" could, if at all, be made by the Government alone and not by the Chief Administrator, rather, the Chief Administrator was held to be a the creater of that Act. The Division Bench agreed with the submission that the Chief Administrator could not ignore the "Zoning Plan" on the assumption that he is entitled to vary it whenever and however he chooses. In granting relief to the petitioners, the Court observed:-

That a contractual obligation is normally not to be enforced in proceedings for a writ is as a general proposition unexceptionable. But where the right though initially founded on a contract of purchase of property is protected and regulated by statutory provisions their violation by a statutory body can be properly enforced by the aggrieved party in proceedings under Article 226 of the Constitution, particularly so when approach to the Civil Courts-assuming such approach to be permissible-cannot afford an equally efficacious and speedy remedy.

In Sri K. Ramdas Shenoy''s case (supra), an operative Scheme in a residential area was sought to be violated by a Municipality by allowing conversion of a lecture hall into a cinema theatre in contravention of clause 15 of the Scheme. Their Lordships of the Supreme Court upheld the right of the then appellant to insist on the performance of duty by the Municipality because the appellant had an individual interest in the performance of the duty imposed by the statute so that the Scheme was not violated. Their Lordships observed as follows:-

Counsel for the respondents contended that a mere grant of licence to construct a cinema causes no injury and the appellant would have no cause of action until the building would be actually used as a cinema. The appellant can challenge at the threshold when the Scheme which is framed for the benefit of the residents in that area is violated by the Municipality. The Municipality acts for the public benefit in enforcing the Scheme Where the Municipality acts in excess of the powers conferred by the Act or abuses those powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess. The right to build on his own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the community residing within the limits of the Municipal Committee If under pretence of any authority which the law does give to the Municipality it goes beyond the line of its authority, and infrings or violates the rights of others, it becomes like all other individuals amenable to the jurisdiction of the Courts. If sanction is given to build by contravening a bye-law the jurisdiction of the Courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye-laws made by that authority is illegal and inoperative.

It is noteworthy that in the afore-referred to two precedents, there was a Statutory Scheme regulating erection of buildings or providing open spaces in accordance with those Schemes It was the installation of a petrol pump in Daya Swarup Nehra''s case (supra) and the conversion of a recreation hall into a cinema hall in Sri K. Ramadas Shenoy''s case (supra) which attracted interference by the Court to compel performance of statutory obligations and duties enjoined on the then respondents. Now in the present case, we are not confronted with any such situation as the buildings have been completed in accordance with the Controlled Areas Act and the "Final Plan" issued by notification dated 19th January, 1966 u/s 5(7) of the said Act, and its progeny the Lay-out Plan, Annexure P. 1. Confronted with that situation, Mr. K.S. Thapar turned around and attempted to raise the question that the Shopping Centre built in accordance with the Layout Plan (Scheme), Annexure P. 1, could not be allowed to be converted into a Judicial Complex as that would amount to impermissible conversion of a building. He drew our attention to the Zoning Regulations appended as Annexure B in the Punjab Government Gazette Extraordinary afore referred to, containing restrictions and prohibition imposed under authority of the Controlled Areas Act. He also drew our attention to Appendix A attached thereto. Mr. Hira Lal Sibal, on the other hand, also relied on the same notification as also section 12 of the Controlled Areas Act and the rules framed thereunder (relevant of whom are 38, 48 and 128). According to him, there was no punishment provided or prohibition enforced in the mis-user of buildings. He further contended that certain buildings were intended to be put to wider user and those had been recognised in some of the rules.

Now it is plain that the Zoning Regulations in the above-quoted notification categorised major land uses/zones, provide amongst others to include residential zone and general business-cum-commercial-cum-civic zone. Appendix A attached thereto provides that a residential zone could have, amongst others, public utility buildings, retail shops and recitals, commercial and professional offices. General business-cum-commercial-cum-civic zone can have amongst others retail shops and restaurants, business and professional offices, local and Government offices. Section 12 of the Act provides for the offences and penalties under the Act. Sub-section (1) thereof provides as under:-

(1) Any person who -

(a) erects or re-erects any building or makes or extends any excavation or lays out any means of access to a road in contravention of the provisions of section 3 or section 6 or in contravention of any conditions imposed by an order u/s 8 or section 10, or

(b) uses any land in contravention of the provisions of sub-section (1) of section 7 or section 10,

shall be punishable with fine which may extend to ten thousand rupees and in the case of a continuing contravention, with a further fine which may extend to five hundred rupees for every day after the date of the first conviction during which he is proved to have persisted in the contravention.

A bare reading of the provisions of sections 3, 6, 8 or 10, as mentioned in sub-clause (a), shows that the same concededly do not cover the case of a mis-user or conversion of a user of such-like constructed building. Similarly, section 7(1) or section 10 mentioned in sub-clause (b) above-quoted do not cover the case of such mis-user or conversion of user of such a building. Sub-sections (2) and (3) of section 12 authorise the Director to issue notice to a person who has committed a breach of the provisions referred to in sub-section (1) to stop further construction and as provided therein may take steps to restore land or building to its original state or to bring it in conformity with the provisions of the Act or the rules, as the case may be.

Part VII of the Rules, known as Building Rules, was pressed into service to sort cut the rival contentions of the parties. Rule 38(xi) defines class of buildings to contain four classes, namely, (a) residential building, (b) commercial building, (c) warehouse and industrial building and (d) public building. Rules 38(xii) defines "commercial building" to mean a building used or constructed or adapted to be used wholly or partially for shops, offices, banks or other similar purposes, but shall not include industries and motor garages. Rule 38(xxx) defines "public building" to mean a building used or constructed or adapted to be used, either ordinarily or occasionally, as a place of worship or as a hospital, college, school, hotel, restaurant, theatre, public hall, public concert room, public lecture room, public exhibition or a public place of Assembly or entertainment for persons admitted thereto by tickets or otherwise, used or constructed or adapted to be used either ordinarily or occasionally for any similar public purpose. Now it is plain from the definitions of the terms "commercial building" and "public building" that it is not only construction of the buildings as such which would determine their character, but will also include the user to which they are put and also adapted to be used for the inclusive purposes indicated therein. To put it differently, and as have the terms been interchangeably used, a constructed shop would he a commercial building, but if used or adapted as an office would still remain a "commercial building" and not be a case of conversion of user. Similarly, a constructed public hall would be a public building, but if used or adapted as a restaurant or a theatre would yet remain a public building. So it is plain that the Building Rules have provided four classes of buildings and each class has a fair amount of interchangeability. Read in this light, Appendix ''A'' attached with Annexure B to the above-referred to notification has provided retail shops and restaurants to be within the residential zone as also in the general business-cum-commercial-cum-civic zone. Commercial and professional offices have been provided in the residential zone and in the second referred to zone, business and professional offices have been provided. Reading the "Zonal Plan" and its Appendix ''A'' with the class of buildings provided in the Rules and their interchangeability it becomes crystal clear that a residential zone cane have sites on which shops and professional offices can be built, whether they be commercial or business is not of much significance. Interchangeably, a constructed retail shop in zone would be a commercial building which could be put to the user of an office or adapted to be used wholly or partially for such purpose. Such elastic conversion contemplated in the "Final Plan" as also the Building Rules, in the circumstances, would not attract the principle of Shri K. Ramdas Sheno''s case (supra) which proceeded on a high and dry bye-law.

Keeping the above discussion apart we would all the same examine the employment of rules 48 and 128 for the purpose. The relevant portions of rules 48 and 128 are reproduced one after the other:-

Use of site, type and character of buildings.-Section 8(2) and 25(2)(f).-

(1) Type and character of building including ancillary buildings that may be erected or re-erected on a site and the purpose for which these may be used shall not be other than that shown in the sector plan or approved colony plan.

(2) Every building that may be erected or re-erected on site shall in addition to the foregoing restrictions comply with restrictions shown on the zoning plan and on Architectural Control Sheets wherever applicable.

(3) * * *

Order of demolition u/s 12(2)-Sections 12(2) and 25(2)(i).-Where a person erects or re-erects any building or makes or extends any excavation or lays out any means of building or a road, in contravention of provision of section 3 or section 6 or in contravention of any conditions imposed by these rules or by an order u/s 8 or section 14, or uses any land in contravention of the provisions of sub-section (1) of section 7 or section 10, the Director shall issue an order under sub-section (2) of section 12 to the said person in Form M-VII:

Provided that a reasonable opportunity shall be given to the defaulter to show cause by notice in Form M-VI before issuing the said order of demolition.

Reading the relevant portions of the Rules above-quoted together, it would appear that the building to be constructed on a site and the purpose for which it can be used, can be no other than that which is shown in the sector plan. And if anyone erects a building in contravention of the provisions of sections 3, 6, 8 and 10 or uses the land in contravention of the provisions of sub-section (1) of section 7 or section 10, the Director can take action u/s 12(2) of the Act. Additionally, in rule 128, it has been provided that contravention of any conditions imposed by these rules would also attract action u/s 12(2) of the Act. It was on this additional particular emphasized that the learned counsel for the petitioners laid stress on. Patently, the language of section 12(2) confines the jurisdiction of the Director only to violations of those sections of the Act which are enumerated in section 12(1) and none other. The employment of the expression "contravention of any conditions imposed by these rules" in rule 128 cannot and will not amend section 12(1) of the Act. Employing the rule of harmonious construction, we have to read in rule 128 that the contemplated contravention of any conditions imposed by the rules is only of those rules which further the objects of those sections of the Act which are contained in section 12(1), and none other. We have noticed earlier that mis-user or conversion of a user of a building does not attract any penalty, or is defined as an offence u/s 12 Thus viewing it from either angle, neither is the adaptation of a constructed shop into a commercial, business or professional office any mis-user or prohibited conversion of the shop, so as to spell any contravention of the rules, and even if there be any, there is no machinery provided in the Act to take care of the situation. Thus we find no merit in the contention raised by the petitioners in these premises.

Before leaving this aspect of the matter, it need be mentioned that the items of adaptation mentioned in the definitions of "commercial building" and "public building" are not exhaustive, but they have been used in the illustrative sense. For good reasons, adaptability changed user has been extended to "similar purposes" also. If constructed shops can be adapted and used for offices, it would yet be similarity of purpose if they are used for Judicial Courts. Such user and adaptation would not in any way transgress either the provisions of the Act, the rules made thereunder, the Final Plan or the Lay-out Plan (Annexure P. 1).

This brings us to the original and the most contentious issue of the "promissory estoppel". It stands undisputed that the equitable doctrine of "promissory estoppel" has come to be employed in Indian Courts, not only by a limited application by way of defence, but also as a cause of action, if necessary to satisfy the equity. It equally is undisputed that the plea of such estoppel is not available against the State in exercise of its sovereign, legislative, executive or statutory functions To revert to the facts of the present case again, the "promissory estoppel" is claimed to flow from the conduct of the respondents in keeping Scheme. Annexure P. 1, intact, and in furtherance of its letting the petitioners build their residential houses on the sites allotted to them on the tacit understanding that a Shopping Complex would be provided to them as a necessary amenity to such buildings. The respondents inclusive of the State of Haryana, in specific terms did not deny that the "Shopping Centre" was not meant to be used as a shopping centre but sought to justify their action to be of a temporary measure. Part of the structure thereof (6 shops) was only intended to be used for Judicial Courts. Specifically, neither has the State of Haryana pointed out that if it was exercising its legislative or executive power for the purpose it was derived from what named source, and if in performance of its statutory functions under which law. As it appears to us, the plea taken is one of executive flexibility. This has been elaborated by pleading that on the creation of the District and the new Sessions Division Faridabad, Courts need be located in the region and thus till a regular Judicial Complex is built, the Judicial Courts need be located in the buildings in question as an ad hoc arrangement. At the same time, it was contended for the State that it was part of its sovereign power, nay sovereign duty, to provide for the location of Judicial Courts in the region in the functioning of the State as Welfare State, judiciary being one of its essential wings. We do not propose to dwell on this aspect as at present advised. We would, however, let the State test and press executive necessity in the situation, especially from the light we have drawn from the cited precedents which are noted below.

In M/s. Anglo Afghan Agencies''s case (supra), their Lordships of the Supreme Court permitted "promissory estoppel" to be raised against the Union of India and the Textile Commissioner in order to compel performance of obligations imposed by a Scheme promulgated by the Central Government under the Imports and Exports (Controlled) Act, 1947 and Imports (Control) Order, 1885. To the plea of "promissory estoppel", the Union of India took up the apparent defence of executive necessity, but at the same time the Government could not, on the facts proved in that case, suggest before the Court for exempting the Government from the equity arising out of the acts done by the petitioners to their prejudice, relying upon the representations made in the Scheme Their Lordships observed as follows:-

We hold that the claim of the respondents is appropriately founded upon the equity which arises in their favour as a result of the representation made on behalf of the Union of India in the Export Promotion Scheme, and the action taken by the respondents acting upon that representation under the relief that the Government would carry out the representation made by it. On the facts proved in this case, no ground has been suggested before the Court for exempting the Government from the equity arising out of the acts done by the exporters to their prejudice relying upon the representation. This principle has been recognised by the Courts in India and by the Judicial Committee of the Privy Council in several cases. In Municipal Corporation of the City of Bombay v. Secretary of State, ILR (1904) 29 Bom. 580, it was held by the Bombay High Court that even though there is no formal contract as required by the statute, the Government may be bound by a representation made by it.

Again in M/s. Motllal Padampat Sugar Mills Company''s case (supra), Bhagwati, J., speaking for the Court observed as follows:-

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 would be acted on by the promisee and the promisee would alter 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 why the Government should not be compelled to make good such promise like any other private individual. But since the doctrine of promissory estoppel is an equitable doctrine, it must yield when the equity so requires. If it can be shown by the Government that having regard to the facts as they have subsequently transpired, it would be inequitable to hold the Government to the promise made by it, the Court would not raise an equity in favour of the promisee and enforce the promise against the Government The doctrine of promissory estoppel would be displaced in such a case because, on the facts, equity would not require that the Government should be held bound by the promise made by it. When the Government is able to show that in view of the facts which have transpired since the making of the promise, public interest would be prejudiced if the Government were required to carry out the promise, the Court would have to balance the public interest in the Government carrying out a promise made to a citizen which has induced the citizen to act upon it and alter his position and the public interest likely to suffer if the promise were required to be carried out by the Government and determine which way the equity lies. It would not be enough for the Government just to say that public interest requires that the Government should not be compelled to carry out the promise or that the public interest would suffer if the Government were required to honour it. The Government cannot claim to be exempt from the liability to carry out the promise on some indefinite and undisclosed ground of necessity or expediency, nor can the Government claim to be the sole judge of its liability and repudiate it on an ex parte appraisement of the circumstances. If the Government wants to resist the liability, it will have to disclose to the Court what are the subsequent events on account of which the Government claims to be exempt from the liability and it would be for the Court to decide whether those events are such as to render it inequitable to enforce the liability against the Government.

(Emphasis supplied by us).

The law laid down by their Lordships of the Supreme Court in the afore-reffered to two precedents, to our mind, is of a realm un-connected with the plea of "promissory estoppel" being met by the State or its functionaries employing as a shield, sovereign, executive, legislative or other statutory functions. The latter kind of defences would wipe out the "promissory estoppel" raised. The "promissory estoppel", though providing a cause of action in equity, has to bend before law. "Equity follows the law" is one of the well known maxims of equity. And since "Equity imputes an intention to fulfill an obligation" is another well known maxim of Equity, the plea of "promissory estoppel" can only be met by pleading a higher equity to overshadow the equity arising from the "promissory estoppel". The doctrine of "promissory estoppel" essentially being one of good conscience rests on the application of the Golden Rule to the every day affairs of men, which requires that one should do unto others as, in equity and good conscience, he would have them do unto him if their positions were reversed. In Courts, however, "promissory estoppel" would remain permitted to be invoked only to prevent injustice or fraud. It essentially being flexible, would have to be applied or denied as the equities between the parties may preponderate.

Now, in the instant case, the respondents have pleaded facts to tilt the scales of justice in their favour on equitable preponderances'' that the society and the region must have Judicial Courts is unquestionable, that the State cannot build overnight Judicial Complex to locate the Courts is a glaring fact in our system of Government, that the Judicial Courts need to be accommodated and sheltered in buildings other than those which could strictly be called a "Judicial Complex" is executive exigency for the State, that the respondents are conscious of not violating the letter and spirit of the Scheme, Annexure P. (sic), is patent in their stance that the location of the Judicial Courts in part of the "Shopping Centre" is temporary and act hoc, that in such plea, it is latent that the respondents are conscious that the buildings in question are not fit enough to locate the Judicial Courts for all times to come, is crystal clear keeping in view the sobriety and inspiration, self-effulging from judicial institutions. There could be no better facts to preponderate the equities in favour of the State, clouding for the present, the equities arising in favour of the petitioners. On the defence raised, we have, in equity, to deny the petitioners, the relief presently asked for.

To be fair to learned counsel for the respondents, we must note the judgment in Excise Commissioner U.P., Allahabad etc. etc. v. Ram Kwnar etc. etc. AIR 1976 S.C. 2232 in which it has been settled that there can be no question of estoppel against the Government in the exercise of its legislative sovereign or executive powers In M/s. Motilal Padampat Sugar Mills Company''s case (supra), the Supreme Court apparently fused the distinction between the exercise of a sovereign or governmental function and a trading or business activity of the Government. So far as the doctrine of Promissory estoppel" was concerned, it held that whatever be the nature of the function which the Government was discharging, the Government remains subject to the rule of "promissory estoppel". This Court in Des Raj Juneja''s case (supra) noticed the conflict between the two judgments of the Supreme Court afore-quoted and followed the opinion expressed by the larger Bench in Ram Kumar''s case (supra) in preference to the latter opinion expressed in M/s. Motilal Padampat Sugar Mills Company''s case (supra). Again in M/s Jit Ram Shiv Kumar''s case (supra), their Lordships of the Supreme Court while affirming the principle that estoppel was not available against the Government in exercise of legislative, sovereign, executive or statutory functions did not cull down the vogue of the principle and observed as thus:-

With respect, we are in complete agreement with the law as stated above but we find the judgment is not in accordance with the view consistently taken by this Court in some respects. We have read the judgment of Bhagwati, J. with considerable are and attention which it deserves Firstly, with great respect we are unable to construe the decision in Union of India v. Indo-Afghan Agencies Ltd. case (A.I.R. 1968 S.C. 718) in the manner in which it has been done. As pointed out by us, all that the case purports to lay down is that the Court can enforce an obligation incurred by an authority on which another has acted upon and put himself in a disadvantageous position, when the authority resiles arbitrarily or on mere whim or on some undefined and undisclosed grounds of necessity.

(Emphasis supplied by us)

And at an earlier part of the same judgment, their Lordships commenting on the Indo-Afghan Agencies'' case observed:-

The decision is, therefore, an authority for the proposition that in the absence of a plea of executive necessity, the Court in appropriate cases is entitled to compel performance of the obligations imposed by the Scheme on the departmental authority. The right of the Government on relevant consideration such as difficult foreign exchange position or other matters which have a bearing on the general interest of the State, to reduce the amount of import certificate was recognized. But the authorities have to act according to the terms of the scheme and not arbitrarily or at their mere whim to ignore the promises made by the Government.

(emphasis supplied)

At the same time their Lordships explained away M/s. Motilal Padampat Sugar Mills'' case (supra) and laid down the law effectively in accord with their earlier decisions reported in Ram Kumar''s case (supra), M. Ramanatha Pillai Vs. The State of Kerala and Another, and State of Kerala and Another Vs. The Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd. etc.,

The doctrine of "Promissory estoppel" remains invokeable, subject to conditions precedent and on proper set of facts in a realm which has not been conquered by the State in the exercise of its sovereign, legislative, executive or statutory functions. That is an event of conquest. "Promissory Estoppel" gets into a combat if the equities pleaded by the State outweigh and cull down the estoppel, the Court permitting its overshadowing. That is an event of flexibility and truce. But "promissory" estoppel" would govern the field if the State on its functionary keeps its lips closed and wants to cow down the raised estoppel by sheer pride. That event must end in peace for the promisee.

For the foregoing discussion, we remain unpersuaded to grant relief to the petitioners. They must bend down to the exigencies of the situation. No case for the present has been made for interference in the exercise of our extraordinary jurisdiction under Article 226 of the Constitution The petition thus fails and is hereby dismissed, without any order as to costs.