JUDGMENT B.P. Singh, C.J.
1. In this batch of writ petitions, the petitioners have impugned Government Resolution dated 27th June 2000, whereby the Zhunka Bhakar scheme implemented in the State since 1st May, 1995 was closed down completely, taking into consideration the working of the scheme which appears to have failed to achieve its objective. The petitioners have also impugned another Government Resolution of the same date, whereby the Government issued instructions regarding taking possession of the Zhunka Bhakar Centres after closure of the scheme. Writ petition (Lodging ) No. 1286 of 2000 was filed on 19th June 2000 even before the impugned Government Resolution dated 27th June 2000 was issued, since the petitioners had come to know from press reports etc, that the Government was contemplating closure of the scheme. Subsequently the petitioners sought leave to amend the writ petition and challenged the aforesaid Government Resolution after the closure of the scheme and the instructions issued pursuant thereto. Petitioner No. 1 in the aforesaid writ petition is an Association of the owners of the Zhunka Bhakar Centres of Mumbai while the other petitioners are owners of Zhunka Bhakar Centres in Mumbai. The petitioners in the other writ petitions are owners of Zhunka Bhakar Centres of Mumbai as well as owners of Zhunka Bhakar Centres in the other parts of the State.
The representative facts are taken from Writ Petition (Lodging) No. 1286 of 2000.
2. It appears that the Government of Maharashtra was considering a Scheme, whereunder the common man in the State of Maharashtra could be provided his staple food 'Zhunka Bhakar' at an affordable price, so that the poorer section of the population could avail of this benefit and enjoy Zhunka Bhakar at a cheap price. Zhunka Bhakar is considered to be the common man's food in the State of Maharashtra, and it was envisaged that they would be provided at a cheap price two Bhakaris of jowar of 50 gm. and one bowl of Zhunka. With this objective in view, the Government of Maharashtra had issued Government Resolution on April 27, 1995, declaring its decision to implement this Scheme in the entire State from May 1, 1995. At all the centres run under the Scheme, two Bhakaris of Jowar of 50 gm. and one bowl of Zhunka was to be made available at Re. 1.00 only. The Scheme was to be implemented at two levels, viz., the urban areas and the rural areas. In the first phase, 2,000 Zhunka Bhakar Centres were to be set up in the State, out of which, 1,000 centres were to be set up in areas coming under Municipal Corporations and Municipalities, while the remaining 1,000 centres were to be located in the rural areas. The District Collectors were to supervise the Scheme in their respective Districts and Zhunka Bhakar Centres were to be set up in sufficient numbers, keeping in view the need of the people. The Scheme envisaged that the centres will be located at places visited by poorer section of the society and the labour class such as District Hospitals, Maharashtra S. T. Depots and Stands, near railway stations, market yards, etc. Places for running such centres were to be given to stall-holders. For running the stalls, preference was to be given to local Mahila Mandals, local voluntary organizations and the educated unemployed. Committees were set up under the chairmanship of District Collectors who were to allot such stalls to registered Mahila Mandals and voluntary organizations. The Committee was to ensure that the allottees had the capacity to run the centres themselves or under their supervision through the employees appointed by them. It was further envisaged that at the Zhunka Bhakar Centres set up in areas coming under the Municipal Corporations/Municipalities, other items of refreshments, including cold drinks, tea, coffee, etc. could also be sold. However, these stalls were to be run primarily as Zhunka Bhakar Centres. The owners of the stalls were required to seek permission of the concerned authorities for sale of items other than Zhunka Bhakar. Since the owners of the stalls were required to supply Zhunka Bhakar at concessional rates, they were permitted to sell such other items, apart from Zhunka Bhakar, so that they could earn sufficient profit to run the stalls. In the urban centres, the owners of the stalls were not eligible for any other aid from the Government. In the Urban areas, Zhunka Bhakar Centres were to be allotted land free of charge for construction of stalls by the State Government, and financial help was also to be given to them for the construction of stalls as per the sanctioned plan. A maximum of 200 sq. ft. of land was to be allotted to such stall-holders on which the stall could be built up on an area of 120 sq.ft. The Government was to provide financial aid to the extent of 50% of the cost of construction of the stall or Rs. 25000 whichever was less. It was made clear that the ownership right of the land so allotted was that of the Government and of the Municipal Corporation/Municipalities and the allotment of land was valid only so long as the Zhunka Bhakar centres were run supplying Zhunka Bhakar at the rate of Re. 1.00 for two Bhakaris and one bowl of Zhunka. If it was found that the owners of the stalls were charging more than Re. 1.00 or had suspended or stopped selling Zhunka Bhakar, the Government shall resume the land allotted to such owners of Zhunka Bhakar Centres. The stall-holders were required to purchase from the open market the items required for preparing Zhunka Bhakar, such as jowar, chana flour, oils, etc. The scheme envisaged that at least 200 persons at each centre will benefit from the scheme everyday.
3. So far as the Municipal Corporation of Greater Bombay is concerned, it issued a circular on 27th February, 1996 laying down the procedure and guidelines for grant of permission to run Zhunka Bhakar Centres. It provided that municipal premises for use of land required for setting up of Zhunka Bhakar Centres were to be allotted on licence basis free of cost or on nominal charge. The ownership of the land however was to remain with the Corporation. The licence was to remain valid only as long as Zhunka Bhakar was sold at the stall at the prescribed rate, and in case it was found that Zhunka Bhakar was not being served, the licence shall be revoked. In case of Government land, the Collector was to recommend the names for allotment of such land and approval was to be granted by the zonal authorities on getting no objection from the Collector. The stall was to be erected having a wall of single brick masonry, the roof of A.C. sheet on iron framework and the shelf for the counters of block board but with aluminium top or lamination. The floor of the stall was to be at the ground level with IPS finish or marble mosaic tiles. The size of the Zhunka Bhakar Centres/stalls were to be as prescribed in the Government Resolution. The permission for erecting stalls was to be given on temporary basis for a period of one year, and was to be renewed every year. It was also provided that such stall shall not be erected within the road lines existing or proposed. This condition was, however, subsequently relaxed and permission could be granted for erection of stalls within the sanctioned/proposed regular line of roads in cases where the roads were not likely to be widened in the near future and subject to certain conditions as contained in Circular dated 31st March, 1998. In cases where Zhunka Bhakar centres were permitted on the land reserved for public purposes, as and when such lands were required for development purposes, the stalls had to be shifted to alternate sites, and the owners were not entitled to claim any compensation in such event. In case of breach of conditions laid down by the Municipal Corporation or conditions laid down in the Government Resolution, the permission granted shall be revoked, and the stalls shall be removed by the Corporation without notice.
4. It is not in dispute that though, under the scheme, the Zhunka Bhakar centres were to supply Zhunka Bhakar at the rate of Re. 1.00 per Zhunka Bhakar the actual cost was worked out at Rs. 2.00 per Zhunka Bhakar. So far as Zhunka Bhakar centres in Mumbai are concerned, the Zhunka Bhakar centres were permitted to sell Zhunka Bhakar at the rate of Rs. 2.00 since these centres were not given any subsidy by the Government. To other centres the Government granted a subsidy of Re. 1.00 per plate of Zhunka Bhakar. But the subsidy of Re. 1.00 per Zhunka Bhakar to such centres was also stopped in the year 1998 and the owners of the stalls were allowed to sell Zhunka Bhakar at the rate of Rs. 2.00 instead of Re. 1.00 per plate as in Mumbai.
5. The Zhunka Bhakar scheme came into effect from 1st may 1995. The petitioners entered into an Agreement with the Government initially for the period of 11 months for erecting and running the Zhunka Bhakar Centres. The State of Maharashtra has annexed to its affidavit-in-reply a copy of the Agreement entered into between the Governor of Maharashtra and the allottee of the stall under the scheme. The said agreement sets out the terms and conditions of the licence. The licence was to remain in force only for a period of 11 months. The licensee was not to sell, transfer, sub-let, under-let, mortgage or dispose of in any manner whatsoever or part with the possession of the said plot and the structure constructed thereon without obtaining prior sanction of the Collector. The licensee was required to run the centre regularly, and provide to the poor and needy people Zhunka and two Bhakaris at the price of Re. 1.00 only. It was expected that at each centre every day minimum 200 beneficiaries should get the benefit of the scheme. The licensee was permitted to keep and sell other items like tea, coffee, cold drinks and other eatables after obtaining requisite permission from the concerned authorities. The licensee was to meet all the expenses for running the said centre, he was entitled to a sum of Re. 1.00 per Zhunka Bhakar unit sold by him. This amount was to be sanctioned at the end of the month after due verification by the Collector. The maximum limit of the grant was Rs. 200/300/400/ per day, depending upon the place at which the Zhunka Bhakar centre was situate if the same was less than the prescribed minimum limit, the grant shall be reduced proportionately, No grant was to be sanctioned for days on which the Zhunka Bhakar centre remained closed. If the Zhunka Bhakar centre sold more Zhunka Bhakar units on any day the maximum amount of grant per day was not to exceed the maximum limit fixed except in Mumbai Municipal Corporation area. Sub-clause of Clause 1 of the Agreement made it clear that the permission granted shall not in any way be deemed to convey to the licensee any right to or over or any interest in, the said land or any easement thereof. The licensee was to pay to the Corporation/Municipal Council all charges, assessments and outgoings, including water charges and electricity charges. The licensee was to use the land only for running the said centre for providing Zhunka Bhakar and other permitted eatables to poor and needy people and for no other purposes whatsoever. The Government was to provide to the licensee a grant-in-aid for constructing a stall to the extent of 50% of the actual cost of construction of the stall or Rs. 25,000 whichever was less. Clause 3 provided that the Government of Maharashtra shall be the owner of the stall constructed by the licensee on the plot allotted to him. The licence was to be valid for a period of 11 months and was to stand automatically terminated on expiry of such period and no separate notice or order to that effect was to be given to the licensee. In case the licensee desired to renew the licence for a further period of 11 months, the licensee was required to make an application to the Collector before expiry of the licence period, and thereupon the Collector shall decide in his absolute discretion whether to grant or refuse renewal, having regard to the past performance of the licensee. On the expiry of the period of the licence, the licensee undertook to remove the furniture, articles and things belonging to him from the said centre, and hand over possession of the stall together with fixtures, fittings, etc Clause of the licence provide that if the licensee charged more than one rupee per plate of Zhunka and two Bhakaris to be provided under the scheme or stops providing Zhunka Bhakar at the said centre, or commits breach of any of the terms and conditions of the licence, the Government shall have a right to terminate the licence by giving 7 days notice in writing and to take back possession of allotted land along with the stall thereon, and in that event, the licensee shall not be entitled to any compensation whatsoever.
6. The licensee was required to execute an agreement with the Government of Maharashtra to construct the Zhunka Bhakar Centre over the land allotted to it. This Agreement provided that the land shall be granted free of cost, but the permission granted shall not in any way be deemed to convey to the licensee any right to, or over, or any interest in the said land or any easement thereof. The period of the licence was to be for the first 11 months, and could be terminated thereafter at any time without giving any notice, and no separate orders were necessary. If the licensee wanted to extend the period of the licence, he was required to make an application to the Collector before the expiry of licence period. The land was to be used only for running Zhunka Bhakar Centre, and only so long as the licensee sold Zhunka Bhakar for Re. 1.00 per unit. If the licensee stopped giving Zhunka Bhakar for Re. 1.00 per unit, then the land along with the structures thereon shall be resumed by the Collector, and no compensation whatsoever shall be given to the licensee. The licensee was not in any manner or mode to transfer the land by way of sale, mortgage, etc., nor was he authorised to encumber the land in any manner whatsoever. If the land was utilised for any other purposes, then it shall be resumed without giving any compensation to the licensee.
7. It needs to be emphasised that the primary objective of the Scheme was to provide Zhunka Bhakar to the poorer section of the society at a price of Re. 1.00 for a bowl of Zhunka and two Bhakaris of jowar. This was the dominant objective of the Scheme. Since the Scheme had to be implemented through Zhunka Bhakar Centres established in different parts of the State, the Scheme envisaged that for running of such centres, preference be given to registered Manila Mandals, registered local voluntary organizations and the educated unemployed. The Committee headed by the Collector was to determine the number of centres to be established in the respective districts and select the persons who had to run the centres. The allottees/licensees were required to enter into an Agreement with the Government and obtain a licence for running the centre. Though the centres were required to sell Zhunka Bhakar at the rate of Re. 1.00 only per unit, they were entitled to subsidy of Re. 1.00 per unit of Zhunka Bhakar, subject to the maximum number of units per day as was determined in each case separately, keeping in view the location of the centre. The owners of the centre were free to sell other eatables, cold drinks, tea, coffee, etc., with a view to earn a profit, since they were required to sell Zhunka Bhakar at a cheap rate. However, it was emphasised that the centres were to be run mainly as Zhunka Bhakar Centres, though other eatables and drinks could also be sold at such centres. The subsidy was granted to centres located outside Mumbai for some time, but thereafter the subsidy was withdrawn, as the Government found that the owners of the Zhunka Bhakar Centres were not correctly representing the sales, and were only interested in getting the benefit of the subsidy without even selling Zhunka Bhakar to the beneficiaries of the Scheme. So far as Mumbai is concerned, from the very beginning, no subsidy was given to the owners of the centre, keeping in view the fact that in Mumbai area, they were in a position to earn sufficient profits, because of the location of the centres and the number of persons who were likely to avail of the service rendered by such centres. The Government gave financial aid for the erection of the structures for running such centres, but the land on which such centres were erected belonged to the Government or Municipal Corporation of Greater Bombay or Municipalities concerned, and not to the allottees who did not acquire any right or interest in the land in question, nor any easement thereof. The licence was to remain valid for a period of 11 months, unless renewed. If the allottees committed breach of the terms of the licence, and either did not sell Zhunka Bhakar at the rate fixed by the Government or did not sell Zhunka Bhakar at the stalls, their licence was to be revoked, and the Government/Municipal Corporation, etc., were entitled to take back possession of the centre, without any liability to pay compensation to the licensee. The terms and conditions of the licence, therefore, leave no room for doubt that the real purpose of the Scheme was to make available to the poor and needy section of the society a plate of Zhunka Bhakar at a price of Re. 1.00 only, increased to Rs. 2.00 and it was with a view to provide a sumptuous meal to the needy section of the society that the Scheme was implemented. In the implementation of the Scheme, however, a preference was shown in favour of local Mahila Mandals, local voluntary organizations and the educated unemployed. However, having regard to the salient features of the Scheme, it is difficult to uphold the contention urged on behalf of the petitioners that the Scheme was implemented with a view to provide employment to the persons who were entitled to the grant of licence under the scheme. The preference given to certain categories was only incidental to the main objective of providing sumptuous food at a cheap price to the needy section of the society. The question of grant of any preference to the categories enumerated in the Scheme would not have arisen if the Scheme for supply of Zhunka Bhakar to the needy section of the society at a cheap rate was not implemented.
8. The scheme came into effect from May 1, 1995, but it appears that the Government was not satisfied with the running of the Scheme, and large number of complaints came to its notice. Many of the centres were closed when the Government decided to discontinue the subsidy. It also came to the notice of the Government that large number of Zhunka Bhakar Centres were converted into fast food counters or restaurants, and they lost their character as Zhunka Bhakar Centres. In sum and substance, what was meant to be a Zhunka Bhakar Centre, catering to the needs of the poorer section of the society, got converted, in due course, to fast food stalls and restaurants, catering to the need of affluent sections of society, thereby defeating the very purpose and objective of the Scheme.
9. The Government of Maharashtra issued Government Resolution on 27th June 2000 by which the Zhunka Bhakar Scheme was closed, taking into consideration the performance of the Scheme. The said Resolution provides that the centres, which had been closed down due to stoppage of grant to Zhunka Bhakar Centres from 1st April, 1999, and the centres, which were closed down due to the unwillingness of the owners of the centres for any reason whatsoever, and the centres which were closed down pursuant to action of closure taken against the owners on account of irregularities and malpractices committed by them, shall be handed over to the concerned authorities with the structures. The Collector, Municipal Corporation and Municipal Authorities shall make use of such plots for other appropriate public purposes as per rules. The concerned authorities should also take possession of the centres which were being run without valid permission by issuing 7 days' notice. However, the centres of which the period of permission/agreement had not expired, should be cancelled, and the plots be returned to the original owners without renewing the agreement, after service of notice on them. The order was to take effect immediately. Another Government Resolution bearing the same date was issued referring to the earlier Circular of the Government, whereby the decision had been taken to close down the Zhunka Bhakar Scheme. The second Resolution contained instructions with a view to give effect to the Resolution closing down the Scheme. The instructions provided that the owner of the centres should be immediately served with a written notice before taking possession of the Zhunka Bhakar Centres. The owner of the centre should be given sufficient time - not more than 7 days -- for removing his furniture, utensils, etc., and for winding up his business, though the Zhunka Bhakar Centres, which had received construction grant, should be taken possession of along with the stall and structures thereon. After the closure of the Zhunka Bhakar Centres, the title of such plots will be governed by the Development Control Rules applicable to such plots. In case where construction is made on the plot belonging to Government, Municipality, Municipal Corporation, the ownership of the centre will be that of the Government, and the owners of the centre shall not be entitled to any compensation. Those Zhunka Bhakar Centres, which were functional, should be informed that the centres would be taken possession of immediately after expiry of the period of agreement, and no renewal shall be granted.
10. It, thus, appears that, having regard to its experience about the working of the Zhunka Bhakar Centres under the Scheme, the Government decided to close the Scheme, and to take possession of the Zhunka Bhakar Centres, and return the land to the authorities to which they originally belonged. In accordance with the terms of the licence/agreement, the owners of the centres were not entitled to any compensation.
11. The two Resolutions of the Government, both dated 27th June, 2000, have been impugned in the Writ Petitions before us. The petitioners contend that the Scheme was conceived as a permanent Scheme, and it was not permissible for the Government to terminate the Scheme prematurely, as was sought to be done by the two Resolutions of 27th June, 2000. According to the petitioners, they had spent considerable amount on the erection of the structures in which Zhunka Bhakar Centres were being run. The structures were of permanent nature, which was also indicative of the fact that the Scheme was a permanent Scheme, and could not be prematurely terminated. In any event, even if it came to the notice of the Government that some of the centres were not being run in accordance with the Scheme, the Government could have taken action against the owners of such centres. However, there was no justification for terminating the Scheme itself. The owners of the centres having raised structures of a permanent nature, they have acquired easementary right under section 16 of the Indian Easements Act, 1882. In any event, the decision of the Government to terminate the Scheme was arbitrary and unreasonable - inasmuch as there was no material on record to support the conclusion reached by the Government that the Scheme had failed. The material placed before the Court did not support the stand of the Government that on the basis of the material available to it, the Government had reached a bona fide conclusion that the Scheme had failed to achieve its objective. The petitioners have also based their claim on the doctrine of legitimate expectation, as they legitimately expected the continuance of the Scheme as long as the owners of the centres continued to run the centres in accordance with the Scheme. The Scheme envisaged, and the Government would have been justified, in taking action against only those owners of the centres who were guilty of breach of the conditions of the licence, but it was not expected that for the default of few, the Scheme itself would be terminated. The petitioners have also relied on the Doctrine of Promissory Estoppel, and have submitted that the petitioners having acted to their detriment pursuant to the decision of the Government, the Government cannot be permitted to go back upon the representation made. The decision to close the Zhunka Bhakar Scheme is wholly arbitrary, and is violative of Articles 14, 16 and 21 of the ' Constitution of India.
12. In its affidavit-in-reply filed in Writ Petition (Lodging) No. 1286 of 2000, the plea of the State of Maharashtra is that the petitioners are not justified in impugning the decision of the State to close down the Zhunka Bhakar Centres. The decision being in the nature of a policy-decision of the State Government, the petitioners are not entitled to challenge the same. The petitioners have failed to point out breach of any statutory or mandatory duty owed by the State Government towards them, and therefore, the instant Writ Petition is not maintainable under Article 226 of the Constitution of India. It is further averred that the issue of providing cheap staple food to the poor people in the State was under the consideration of the State Government for sometime. By Government Resolution dated 27th April, 1995, the State Government took the decision to introduce the Zhunka Bhakar Scheme, the salient features of the Scheme being that one plate of Zhunka Bhakar consisting of two Bhakaris of 50 gm each and a bowl of Zhunka be served to the poor at the Zhunka Bhakar Centre at the rate of Re. 1.00 per plate. The Government was to give subsidy of Re. 1.00 for each plate of Zhunka Bhakar served at such centres to the persons running the Zhunka Bhakar Centres. The selection of the owners of the Zhunka Bhakar stalls was done by a committee headed by the Collector, which was subsequently headed by the concerned guardian Minister. The sites on which the centres were to be established were either Government-owned lands or lands belonging to the Municipal Corporation/Council as well as the lands belonging to private persons. As far as the sites belonging to the State Government as well as the local bodies were concerned, the sites were to be allotted on licence basis for a period of 11 months. The licensee was to erect the structure as prescribed, which was to be in the nature of a temporary shed or stall. In addition to the subsidy on the sale of Zhunka Bhakar, a subsidy of upto Rs. 25,000 or 50% of construction cost, whichever is less, was to be granted by the State Government. The allotment letter, as well as the Proforma Agreement, annexed to the Government Resolution dated 25th August, 1995 specifically mentioned that the ownership of the shed will be of the Government or the local bodies, as the case may be, even if the shed was to be constructed by the allottee. The Proforma Agreement also made it clear in categoric terms that the permission granted shall not in any way be deemed to convey to the licensee any right to, or over, or any interest in the said land or any easement thereof. Clause 6 provided that on the expiry of the period of the licence, the licensee shall remove the furniture, articles, etc., and hand over the possession of the stall together with fixtures and fittings to the Government. Clause 7 of the Agreement provided that in case of breach of any of the terms and conditions, the Government shall have the right to terminate licence and to take back the possession of the allotted land along with the stall thereon, and in that event, the licensee shall not be entitled to any compensation whatsoever. A sample of the Agreement has been annexed to the affidavit as Exhibit 'A'. Pursuant to the Government Resolution, about 6,200 Zhunka Bhakar Centres were established throughout the State of Maharashtra, out of which about 240 were located in Mumbai.
13. It is further averred in the affidavit-in-reply that right from the year in which the Scheme was launched, the State Government started receiving numerous complaints as regards the functioning of the Zhunka Bhakar Centres. Such complaints were being received at the District level and the complaints were, inter alia, to the effect that the persons running the Zhunka Bhakar Centres were maintaining bogus records of sale of Zhunka Bhakar plates so as to receive subsidy from the State Government, to which they would not otherwise be entitled. Complaints were also received to the effect that the centres were not kept open during prescribed hours, and were not actively selling the Zhunka Bhakar, but were selling other items of food like Chinese food, non-vegetarian food and fast food at higher prices. Thus, the purpose and intent of the Zhunka Bhakar Scheme was lost. The State Government was granting subsidy of Re. 1.00 per plate of Zhunka Bhakar under the Scheme, and the ceiling for the subsidy was Rs. 200 per day in rural areas, Rs. 300 at taluka places, Rs. 400 at District places and Rs. 500 in the Municipal Corporation areas, save and except Mumbai Municipal Corporation area. The area falling within the Municipal Corporation of Mumbai was made an exception, being the commercial capital of the country, having vast potential for sale of Zhunka Bhakar. In view of the complaints made, a decision was taken by the State Government to withdraw the subsidy with effect from 1st April, 1999. As a result of the withdrawal of the subsidy, a large number of Zhunka Bhakar Centres, about 50% were closed down. These centres were mainly in the rural areas and small towns, where, it appears, the centres were being run only with a view to claim subsidy on the basis of bogus records. After the withdrawal of the subsidy, the price of each plate of Zhunka Bhakar was increased to Rs. 2.00. It is stated that out of 6,200 centres, only 2,550 remained functional, out of which 240 centres are in Mumbai.
14. Even after withdrawal of the subsidy, complaints were received to the effect that the Zhunka Bhakar Centres were selling non-vegetarian food, Chinese and fast food. These were not contemplated under the Scheme. Many of the Zhunka Bhakar Centres were virtually converted into restaurants. The purpose of the Scheme to provide sumptuous food to the poorer section of the society was, therefore, lost, and the stark reality was that the Zhunka Bhakar Centres had lost the character of Zhunka Bhakar Centres, and had become restaurants catering to the upper strata of society. In 625 cases, various irregularities were found and those centres were cancelled after enquiry. In many cases, the allottees did not get their licence renewed, and had continued unauthorisedly. In these circumstances, the Government had to review the implementation of the Scheme. The matter was discussed at the highest level in the meeting of the Cabinet on 14th June, 2000, and it was decided to discontinue the said Scheme. However, the Government, vide its decision contained in the Government Order dated 27th June, 2000, inter alia, provided that existing, centres having valid agreements would be allowed to continue till the period of the said agreements was over. However, the Government decided to take back those centres in respect of which centres, the Agreements had come to an end, and the appropriate authorities were directed to take possession of the sites, after giving 7 days' notice to the owner of the centre. After resumption of the sites, they were to be utilised for public purposes as permissible under the existing rules and regulations. It is asserted in the affidavit that these were considerations which weighed with the Government for coming to a conscious decision to close the Scheme. The action was not politically motivated. The petitioners do not have any right in respect of the said sites, and cannot contend that they are entitled to continue with the Zhunka Bhakar Centres, in spite of this decision of the State Government to terminate the Scheme.
15. When this Writ Petition had come up for hearing before this Court on July 4, 2000, the Respondent-State was directed to disclose the material on the basis of which the State Government had come to the conclusion that the Scheme had failed, and had, therefore, to be scrapped. Pursuant to the direction of the Court, an additional affidavit has been filed on behalf of the State, disclosing the material on the basis of which the State Government had come to a bona fide conclusion that the Scheme had failed, and, therefore, deserved to be terminated. It is explained in this affidavit that though in the earlier affidavit dated 3rd July, 2000, it has been stated that action was taken against 625 centres for irregularities, the said information was based on the data placed before the cabinet at the relevant time. The said data had not been updated on the basis of inputs available with all the Collectors. It is stated that actually the position of the Zhunka Bhakar centres all over the State is as follows :--
"1. Centres closed by taking action on account of irregularities .... 1197 2. Functioning centres .... 1932 3. Agreements not renewed out of functioning Centres .... 1216 4. Number of written complaints received (in respect of several centres) .... 57 5. Number of centres in which substance found in the complaint. .... 73" It is further submitted that on the basis of the inputs received by the Office of the Collectors based on regular or surprise inspections, the following irregularities were found in the running of the Zhunka Bhakar Centres throughout the State : " 1. Not selling Zhunka Bhakar .... 822 2. Not maintaining Zhunka Bhakar Sales Register .... 927 3. Not displaying board about availability of Zhunka Bhakar .... 640 4. Overcharging for Zhunka Bhakar .... 14 5. Owner (Kendra Chalak) not present at the time of inspection or centre rented/handed over to another person. .... 282 6. Unauthorised construction/extension .... 205 7. Selling Non-Veg. or Chinese food. .... 58 8. Keeping Zhunka Bhakar nominally and converting the centre virtually into a restaurant. .... 392 9. Not opening Zhunka Bhakar centre at prescribed hours .... 565 10. Other faults/irregularities. .... 64 Total irregularities .... 3954 These inspections were carried out between April 1999 and May 2000. The Government decision to close down the centres was issued on 27th June 2000.
16. It is also stated that oral complaints were made to the concerned guardian Ministers as well as to the representatives of the people regarding the functioning of the Zhunka Bhakar Centres. The State Government, considering the overall position of the functioning of the said scheme, came to a conclusion that the said scheme had been misused, and that it had lost its purpose and therefore, needed to be wound up or cancelled. The State Government, therefore, took a bona fide decision after taking into account all relevant material. The Zhunka Bhakar centres having lost the intent and purpose for which they were established, the scheme was cancelled in public interest and the cabinet took such a policy-decision after due and proper consideration of relevant facts.
17. A detailed chart was produced before us, giving particulars of the irregularities found districtwise to substantiate the facts stated in the additional affidavit filed on behalf of the State.
18. An affidavit-in rejoinder has been filed by the petitioners in writ petition (Lodging )No. 1286 of 2000. Various inconsistencies have been pointed out in the submissions urged on behalf of the State and the particulars with regard to irregularities furnished by the State. It is submitted that the figures submitted by the State were not reliable and could not be acted upon. It is also stated that though in many cases agreements duly signed by Kendra Chalaks had been submitted for approval, the Collector had not granted the permission, and had kept the matters pending.
19. In paragraph 5(f) of the rejoinder, it is stated that the scheme was formulated for providing cheap food to the poor and down-trodden by allowing the Zhunka Bhakar centre owners to sell other food items and by sharing those profits with the losses incurred by providing Zhunka Bhakar at the prescribed rate. It is asserted that it is economically impossible to provide Zhunka with 2 Bhakaris at Re. 1.00 or Rs. 2.00, as the cost of the raw-material exceeds Rs. 5.00 per plate, apart from the cost incurred by way of establishment charges and other facilities, like electricity, water, cleanliness, preparation and service. The Scheme did not prohibit the sale of non-vegetarian or Chinese food, and the Scheme would fail if the centres are not permitted to earn profits by sale of such items to compensate the losses suffered by them in the sale of Zhunka Bhakar at the prescribed rate.
20. It is contended on behalf of the State that the petitioners cannot assert any legal right. The Scheme made it clear that permission was being granted to the allottees for a restricted period. Similarly, the Agreement made it clear that permission granted shall not in any way be deemed to convey to the licensee any right, title or interest in the land or any easement thereof. There was no violation of any fundamental right either under Article 14 or 19(1)(g) of the Constitution of India, as there was no restriction to carry on business. The reasonableness of restriction is to be determined in an objective manner and having in view the interest of the general public and not from the stand-point of interest of the persons upon whom restrictions have been imposed. In the instant case, what was, in effect, challenged was the policy decision of the State Government, and the petitioners had failed to establish that the policy was in breach of any constitutional or statutory provision, or that it was arbitrary or unreasonable. What has really been challenged is the wisdom of the policy decision of the State Government, without demonstrating the policy decision to be capricious or arbitrary and not informed by any reason whatsoever. There was, therefore, no justification for quashing the policy decision of the State Government.
It is also urged that the Rule of Promissory Estoppel has no application to the present case. It is open to a Government to revise its earlier policy in the light of the view that it takes of the situation and of the measures required to deal with it from time to time. No assurance was given to the petitioners that they will be indefinitely allowed to run the centres, and, on the contrary, it was made clear that the stalls will be allowed on a licence basis for a limited purpose. No promise, assurance or representation has at all been made other than what is contained in the Scheme and Licence Agreement. No reasonable person could ever assume that the policy was to be continued indefinitely, or that any right, legal or otherwise, has been created in favour of the allottees.
21. Even the principle of legitimate expectation was not attracted to the facts of the instant case, because the principle of legitimate expectation must yield to a revision of policy in larger public interest. The test is whether the revision was in public interest, or whether the decision is based on any abuse of power. In the instant case, the Government has taken a bona fide decision to terminate the Scheme, as it has failed to achieve its objective on account of large-scale abuse of the Scheme by the owners of the Zhunka Bhakar Centres. Learned Advocate-General, therefore, submitted that this petition lacks merits, and must be rejected.
22. We shall first consider the submission urged on behalf of the petitioners that the Zhunka Bhakar Scheme was meant to be a permanent Scheme, and was to continue as long as the allottees continued to sell Zhunka Bhakar at the rates prescribed by the State Government. The mere fact that some of the allottees did not conform to the instructions and guidelines, and did not implement the Scheme in its true spirit, was no reason to withdraw the Scheme completely so as to render unemployed even those allottees who were operating Zhunka Bhakar Centres in accordance with the Scheme. In any event, the Government had no material before it to come to the conclusion that the Scheme had failed. It was submitted on behalf of the petitioners that the withdrawal of the Scheme completely defeated the legitimate expectations of the petitioners.
23. From the material placed on record, it appears that the Government was receiving complaints about the manner in which the Scheme was being implemented by the allottees. The Scheme envisaged that those allottees who were granted stalls to run Zhunka Bhakar Centres outside Mumbai will be given a subsidy of Re. 1/- per unit of Zhunka Bhakar while they were to charge their customers Re. 1/- per plate. The maximum number of units for which subsidy was permissible was fixed depending upon the location of the centre.
24. It is the case of the State of Maharashtra that the Scheme was framed and implemented with the laudable objective of providing food to the poorer section of society at a subsidised price. For this purpose, the licensees were allotted land on which they could construct stalls with financial assistance from the State. However, as early as on 1st April, 1999, the State Government had to withdraw the subsidy in view of the fact that most of the Centres being run in rural areas, and in small towns, did not maintain genuine record of sale, and their sole intention was to earn the subsidy without rendering any service. When the subsidy was withdrawn, about 50% of the Zhunka Bhakar Centres in such areas were closed down. Out of 6,200 Centres, only 2,550 remained functional, out of which 240 centres were in Mumbai. This has not been seriously disputed by the petitioners. However, their case is that even if that was so, the remaining Centres which were functional should have been continued. On the other hand, the State contends that though the Scheme was envisaged with a view to cater to the needs of the poorer section of society, the Centres which continue to function had lost their character as Zhunka Bhakar Centres, and were converted into fast food joints, selling non-vegetarian as well as Chinese food, etc., thus catering to the affluent section of society. It being so, the Government was satisfied on the basis of relevant material that the Scheme had been so operated by the licensees that it failed to achieve the objective with which the Centres were established. It was submitted on behalf of the Respondents that though the Centres were allowed to sell other items of food with prior permission, that was only with a view to supplement the income of the licensees since they were required to sell Zhunka Bhakar at a very low price. What was, however, emphasised in the Scheme, as also in the agreement entered into with the petitioners, was that the Zunka Bhakar Centres must retain their character as Zhunka Bhakar Centres. It was, therefore, expected of the licensees that while implementing the Zhunka Bhakar Scheme in its true spirit, they may earn some profit by selling other items of food also while retaining the character of the Centres as Zhunka Bhakar Centres. The Government, however, came to the conclusion that this expectation was belied and the licensees, after obtaining the licence and allotment of land for running Zhunka Bhakar Centres, converted them into fast food joints. The Scheme, therefore, failed to achieve its object, and the stalls run by the licensees rather than catering to the needs of the common man belonging to the poorer section of society, started catering to the more affluent section of society by serving them delicacies instead of serving to the common man his staple food viz., Zhunka Bhakar. This was the stark reality which the Government took into consideration when it reviewed the Scheme in the meeting of the Cabinet, held on 14th June, 2000. The Government decided to discontinue the Scheme.
25. The learned Advocate General has filed before us a statement showing the number of complaints received from time to time. He further submitted that the Government was not oblivious to the numerous complaints received by the representatives of the people and the guardian ministers. It cannot be assumed that they were not aware of the realities. We were shown some menu cards of such Centres which indicated that large number of items were being served at such Centres which also undertook outside catering, like any establishment in the catering business. We may not attach much importance to such menu cards shown to us but certainly, if the Government came to the conclusion that the Zhunka Bhakar Centres, had really ceased to be Zhunka Bhakar Centres and were so only in name, and had got converted into fast food joints or restaurants supplying delicacies not affordable by poorer section of society. It was certainly justified in withdrawing the Scheme on the ground that it had failed to achieve the purpose for which it was implemented. The learned Advocate General also submitted, and rightly, that the scheme was not statutory in nature and the petitioners, in any event, have not even pleaded that any statute or rule had been violated by the Government by issuing Government Orders dated 27th June, 2000, withdrawing the Scheme.
26. The submission urged on behalf of the petitioners that only those Zhunka Bhakar Centres should have been closed down which were found to be committing breach of the terms and conditions of the Scheme and the instructions and guidelines issued thereunder, is devoid of force. While reviewing a Scheme framed and implemented to cater to the needs of poorer section of society, the Government was bound to review the working of the Scheme as a whole. While it is true that only a few instances of breach of the terms and conditions of the Scheme may not have justified the wholesale winding up of the Scheme, the facts of this case indicate otherwise. Almost 50% of the Centres closed down the moment subsidy was withdrawn. This itself is indicative of the fact that most of the licensees were not interested in supplying Zhunka Bhakar at the prescribed rate, but were only interested in protecting the subsidy without making a genuine effort to implement the Scheme. Thereafter, the Zhunka Bhakar Centres which continued to function had changed their character from Zhunka Bhakar Centres to restaurants serving fast food including non-vegetarian and Chinese cuisine. The primary purpose for which the Zhunka Bhakar Centres were established was to make available at cheap price the common man's food to the poorer section of society. Instead, the Zhunka Bhakar Centres remained so only in name and started catering to the needs of affluent section of society. No doubt, they could be permitted to sell other items of food as well, and they could earn some profit by sale of other items. But this, they could do, only as long as the Zhunka Bhakar Centres did not lose their character as Zhunka Bhakar Centres. The facts brought on record do indicate that there was material before the Government to come to the conclusion that the Scheme had failed to achieve its objective, and, rather than catering to the needs of poorer section of society, the licensees were catering to the needs of affluent section of society which was not the purpose for which the Scheme was framed and implemented. In this rejoinder, the petitioners in Writ Petition (Lodging) No. 1286 of 2000 have themselves stated that it is impossible to serve Zhunka Bhakar at the rate of Rs. 2/- per plate, because the cost of raw material itself apart from establishment expenses, came to Rs. 5/- per plate. If we accept these facts as correct, then on their own showing, the Scheme to provide Zhunka Bhakar at the rate of Rs. 2/- per plate was incapable of implementation.
27. It was then submitted before us that the material that was before the Government did not indicate that the Scheme had failed. Counsel for the petitioners strenuously sought to urge before us that the figures supplied by the Government were misleading, and some of the figures related to a period subsequent to the date of the decision of the Government to withdraw the Scheme. We are not inclined to investigate this matter because the Government, on a consideration of the material before it, came to be a bona fide conclusion that the Scheme had failed, and deserved to be withdrawn in public interest. The sufficiency of the material before the Government is beyond the pale of judicial scrutiny, unless the decision is shown to be capricious, arbitrary or mala fide. The material on record does not justify the submission that there was no material before the Government to conclude that the Scheme had failed to achieve its objective. The closure of large number of Zhunka Bhakar Centres when the subsidy was withdrawn, and the large number of complaints which were received even thereafter did provide relevant material to the Government to reach a conclusion that the Scheme had failed and no useful purpose will be served by continuing the Scheme by providing facilities to the licensees which was intended to benefit the poorer section of society.
28. It was then submitted that the petitioners entertained a legitimate expectation that the Scheme would be continued as long as they continued to supply, Zhunka Bhakar to the common man at the prescribed price and followed the terms and conditions of the allotment of stalls to them under the Scheme. The learned Advocate General, on the other hand, contended that they were not justified in contending that they had been given any assurance that they will be indefinitely allowed to run their stalls because the policy itself made it clear that the stalls will be allowed on licence basis for a limited purpose. Neither the doctrine of promissory estoppel nor the principle of legitimate expectation could be invoked by the petitioners. We may, at this stage, refer to the authorities cited at the Bar by the parties. The petitioners as well as the Respondents rely upon the same judgments of the Supreme Court in support of their rival contentions.
29. In M/s Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay, , the Apex Court held that there is always a presumption that a Governmental action is reasonable and in public interest. It is for the parties challenging its validity to show that the action is unreasonable, arbitrary or contrary to the professed norms or not informed by public interest, and the burden is a heavy one. In the case of Food Corporation of India v. M/s Kamdhenu Cattle Feed Industries, , it was held that in contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law : A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is fairplay in action. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision-making process in all State actions. It is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision. However, the mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weightage to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Their Lordships, however, went on to observe that whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny.
30. In P. T. R. Exports (Madras) Pvt. Ltd., and Ors. v. Union of India and Ors., , the applicability of the principle of legitimate expectation was considered in the light of the earlier policy which was revised by the Government in view of the changed potential foreign markets and the need for earning foreign exchange. The change in the policy was challenged on the ground of promissory estoppel on legitimate expectation. After analysing the two policies, and the need for change, the Court considered the question whether the Government was bound by the previous policy or whether it can revise its policy in view of the changed circumstances. It was observed that while it is true that in a given set of facts the Government may in an appropriate case be bound by the doctrine of promissory estoppel, the question revolved upon the validity of the withdrawal of the previous policy and introduction of the new policy. It was held that the doctrine of legitimate expectation requires to be angulated thus; whether it was revised by a policy in the public interest or the decision is based upon any abuse of the power? The power to lay policy by executive decision or by legislation includes power to withdraw the same unless in the former case, it is by mala fide exercise of power or the decision or action taken is in abuse of power. The doctrine of legitimate expectation plays no role when the appropriate authority is empowered to take a decision by an executive policy within the executive or legislative power. The Court leaves the authority to decide its full range of choice within the executive or legislative power. In that case, the question arose in the context of grant of licence for import or export, and the Court observed that in the matter of economic policy, it is a settled law that the Court gives a large leeway to the executive and the legislative policy, The applicant has no vested right to have export or import licences in terms of the policies in force at the date of his making application. For obvious reasons, granting of licences depends upon the policy prevailing on the date of the grant of the licence or permit. The authority concerned may be in a better position to have the overall picture of diverse factors to grant permit or refuse to grant permission to import or export goods. The authority has to take a decision on the basis of diverse economic perspectives which the executive is in a better informed position unless the refusal is mala fide or is an abuse of the power in which event it is for the applicant to plead and prove to the satisfaction of the Court that the refusal was vitiated by other factors. 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,
31. In M, P. Oil Extraction and Anr. v. State of M. P. and Ors., etc., , the nature of the doctrine of legitimate expectation was again considered. It was observed that the doctrine of legitimate expectation has been judicially recognised, and it operates in the domain of public law and in an appropriate case, constitutes a substantive and enforceable right. But it was held in the same judgment that the executive authority must be held to be within its competence to frame a policy for the administration of the State. Unless the policy framed is absolutely capricious and, not being informed by any reason whatsoever, can be clearly held to be arbitrary and founded on mere ipse dixit of the executive functionaries thereby offending Article 14 of the Constitution of India or such policy offends other constitutional provision or comes into conflict with any statutory provision, the Court cannot and should not outstep its limit and tinker with the policy decision of the executive functionary of the State. The policy decision is in the domain of the executive authority of the State and the Court should not embark on the uncharted ocean of public policy and should not question the efficacy or otherwise of such policy so long the same does not offend any provision of the statute or the Constitution of India. The power of judicial review of the executive and legislative action must be kept within the bounds of constitutional scheme so that there may not be any occasion to entertain misgivings about the role of judiciary in outstepping its limit by unwarranted activism. In that case, it was held that the industrial units which were commissioned on the invitation of the State to undertake oil extraction operation on the assurance of supply of sal seeds by the State stood on a separate footing. The renewal Clause in the impugned agreements executed in favour of the Respondents did not also appear to be unjust or improper. It was a matter for decision by the State Government whether protection by way of supply of sal seeds under the terms of agreement requires to be continued for a further period, and unless such a decision was shown to be patently arbitrary, interference by the Court was not called for. In the facts of the case, it was held that the decision of the State Government to extend the protection for further period could not be held to be per se irrational, arbitrary or capricious warranting judicial review of such policy decision. On this ground, the challenge to the validity of the renewal clause was repelled in earlier litigation. It was observed that a subsequent challenge of the renewal clause, therefore, should not be entertained unless it can be clearly demonstrated that the fact situation has undergone such changes that the discretion in the matter of renewal of agreement should not be exercised by the State. It was in this background that the respondent's contention that they legitimately expected that the renewal clause would be given effect to in usual manner and according to past practice unless there was any special reason not to adhere to such practice was upheld. To the same effect are the observations of the Supreme Court in Punjab Communications Ltd. v. Union of India and Ors. . It was observed that the principle of legitimate expectation is still at a stage of evolution. The principle is at the root of the rule of law and requires regularity, predictability and certainty in the Government's dealings with the public. The doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and the decision-maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way. The decision-maker can sustain the change in policy by resort to Wednesbury principles of rationality. A change in policy can defeat a substantive legitimate expectation if it can be justified on Wednesbury reasonableness. The protection for substantive legitimate expectation is based on Wednesbury unreasonableness. In sum, this means that the judgment whether public interest overrides the substantive legitimate expectation of individuals will be for the decision-maker who has made the change in the policy. The choice of the policy is for the decision-maker and not for the Court. The legitimate substantive expectation merely permits the Court to find out if the change in policy which is the cause of defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made.
32. Since the submissions urged before us relying on the principle of legitimate expectation are to a great extent inter-linked with the doctrine of promissory estoppel. We may conveniently deal with the authorities cited before us touching on the doctrine of promissory estoppel. In M/s Jindal Industires Ltd. v. State of Haryana and Anr., , the Apex Court held that a new Government or even the same Government has power to revise the earlier industrial or fiscal policy in the light of the view that it takes of the situation and of the measures required to deal with it, from time to time. Hence, if the new Government had taken the decision in question to withdraw the exemption at a later date, it cannot be said that it has done so mala fide. It was observed in that case that when the exemption was granted initially, no assurance was given that the Appellant would get it for a longer period than the period mentioned in the then notification.
33. In Kasinka Trading and Anr. v. Union of India and Anr., , the Apex Court, on an exhaustive consideration of the authorities on the subject approved the principle that the doctrine of promissory estoppel must yield when the equity so demands. The following passage appearing in Godfrey Philips India, Ltd., , was quoted with approval:--
"We may also point out that the doctrine of promissory estoppel being an equitable doctrine, it must yield when the equity so requires : if it can be shown by the Government or public authority that having regard to the facts as they have transpired, it would be inequitable to hold the Government or public authority to the promise or representation made by it, the court would not raise an equity in favour of the person to whom the promise or representation is made and enforce the promise or representation against the Government or authority. The doctrine of promissory estoppel would be displaced in such a case, because on the facts, equity would not require that the Government of public authority should be held bound by the promise or representation made by it."
Their Lordships also quoted with approval, the following passage of Prof. S.A. de Smith in his celebrated treatise judicial Review of Administrative Action 3rd Edition at page 279.:--
"Contract and covenants entered into by the crown are not to be construed as being subjected to implied terms that would exclude the general discretionary powers for the public good. On the contrary they are to be construed as incorporating'an implied term that such powers remain exercisable. This is broadly true of other public authorities also but the status and functions of the Crown in this regard are of a higher order. The Crown cannot be allowed to tie its hands completely by prior undertakings is as clear as the proposition that the Courts cannot allow the Crown to evade compliance with ostensibly binding obligations whenever it thinks fit. If a public authority lawfully repudiates or departs from the terms of a binding contract because the undertakings would improperly fetter its general discretionary powers the other party to the agreement has no right whatsoever to damages or compensation under the general law no matter how serious the damages that party may have suffered."
The court in Kasinka Trading (supra) observed :--
"It has been settled by this court that the doctrine of promissory estoppel is applicable against the Government also particularly where it is necessary to prevent fraud or manifest injustice. The doctrine, however, cannot be pressed into aid to compel the Government or the Public authority "to carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of the Government or of the public authority to make." There is preponderance of judicial opinion that to invoke the doctrine of promissory estoppel clear, sound and positive foundation must be laid in the petition itself by the party invoking the doctrine and that bald expressions, without any supporting material, to the effect that the doctrine is attracted because the party invoking the doctrine has altered its position relying on the assurance of the Government would not be sufficient to press into aid the doctrine. In our opinion, the doctrine of promissory estoppel cannot be invoked in the abstract and the Courts arc bound to consider all aspects including the results sought to be achieved and the public good at large, because while considering the applicability of the doctrine, the Courts have to do equity and the fundamental principles of equity must for ever be present to the mind of the Court, while considering the applicability of the doctrine. The doctrine must yield when the equity so demands if it can be shown having regard to the facts and circumstances of the case that it would be inequitable to hold the Government or the public authority to its promise, assurance or representation."
The Court, in that case, upheld the withdrawal of exemption in public interest since it was a matter of Government policy with which the Court would not interfere in absence of any manifest injustice, mala fide or fraud.
34. In the light of the legal position well settled, we now advert to the facts of this case. The petitioners contend that the Zhunka Bhakar Scheme, as implemented by the Government, gave rise to a legitimate expectation that the Scheme would be continued for all times to come, and that they would not be deprived of the benefit conferred upon them as long as they continued to sell Zhunka Bhakar at the prescribed price and in accordance with the Scheme. Apart from the change of policy, which justifies the withdrawal of the Scheme, we also find that the Scheme as formulated and implemented could not possibly give rise to a legitimate expectation that the Scheme would continue for all times to come. The petitioners were only granted a licence to run a stall for the sale of Zhunka Bhakar. The agreement was to remain in force for 11 months only, of course, subject to renewal. The licence could be cancelled in given circumstances. It was made clear to the licensees that they had to run their stalls as Zhunka Bhakar stalls. The policy enunciated by the Government made it clear to all concerned that the Scheme was being implemented with a view to provide staple food to the common man at a subsidised price. In case the petitioners did not function in the manner they were expected to function, and committed breaches, their licence may not be renewed, and may even be cancelled prematurely. The agreement itself made it clear that the stalls will be allowed on licence basis and that the permission granted was not in any way be deemed to convey to the licensee any right to, or over or any interest in the land or any easement thereof. Clause 3 of the agreement provided that the Government of Maharashtra shall be the owner of the stall constructed by the licensee on the plot allotted to him. The licence was to be valid for a period of 11 months, and was to stand automatically terminated on expiry of such period, and no separate notice or order to that effect was to be given to the licensee. The license of a licensee may be renewed at his instance provided that the Collector in his absolute discretion may grant or refuse renewal having regard to the past performance of the licensee. The licensee also undertook to remove the furniture, articles and things belonging to him from the said Centre and hand over possession of the stall together with its fixtures, fittings, etc., on the expiry of the period of licence. The licensee had no authority to transfer the land by way of sale, mortgage, etc., nor was he authorised to encumber the land in any manner whatsoever. If the land was utilised for any other purpose, the authority was entitled to resume the same without giving compensation to the licensee. All these conditions in the agreement as well as in the scheme militate against the contention of the petitioners that they were to continue as licensees on a permanent basis. In fact, many of them closed down their stalls when the subsidy was withdrawn. Having regard to the nature of the policy envisaged, and the terms of the agreement entered into by and between the State Government and the petitioners, we do not agree with the submission urged on behalf of the petitioners that they reasonably entertained a legitimate expectation that they will continue as licensees of the Zhunka Bhakar Centres for all times to come.
35. The learned Advocate General is, therefore, right in submitting that no promise, assurance or representation had been made other than what is contained in the scheme and the licensing agreement. No reasonable person could even assume that the policy was to be continued indefinitely or that any right, legal or otherwise, had been created in favour of the allottees. Even the doctrine of promissory estoppel could not come to the aid of the petitioners in the facts of the instant case where the Scheme itself was withdrawn in public interest. There is no assurances given to the petitioners that the Scheme shall not be withdrawn. Moreover, the Scheme has been withdrawn on account of the breaches committed by the licensees themselves who acted in a manner so as to defeat the purpose of the Scheme. The Government had conceived the Scheme with a view to provide cheap food to the poorer section of the society. The scheme in terms says so, and we must assume that the petitioners and the other licensees were aware of this fact. It, therefore, followed that if the Scheme did not succeed, it may be withdrawn by the Government. Since the Government was satisfied on the basis of relevant material that the Scheme had not achieved the desired objective, it was permissible for the Government to change the policy in larger public interest.
36. The legitimate expectation, if any, of the petitioners must yield to a revision of the policy in larger public interest. The doctrine of legitimate expectation plays no role when the appropriate authority is empowered to take a decision by an executive policy or under law. It is, of course, open to a person affected to contend that the revision was not in public interest or that it was based on abuse of power. In the instant case, there is no material to come to the conclusion that the change in policy was based on any abuse of power or that it was mala fide, unreasonable and capricious. There is hardly any material to substantiate the plea feebly advanced that with the change in Government, the policy was changed on political considerations. This does not appear to be so because difficulties were being faced even when the earlier Government was in power, so much so that on account of the nefarious activities of the licensees, even the earlier Government had to withdraw the subsidy resulting in the closure of a large number of Zhunka Bhakar Centres. The Government had to consider the success of the Scheme as a whole and, therefore, even if some of the Zhunka Bhakar Centres may claim that they have not committed breach of the terms and conditions, that by itself would not prevent the Government from taking a policy decision to withdraw the Scheme when it had substantially failed. It is well settled that when the doctrine of legitimate expectation is invoked, the matter has to be determined not according to the claimant's perception, but in the larger public interest wherein other more important considerations may outweigh what otherwise would have been the legitimate expectation of the claimant. We have not found evidence of mala fide exercise of power by the State Government in this case, and it appears to us that the Government has acted in the larger public interest on a bona fide conclusion reached by it on the basis of material on record that the Scheme had failed to achieve its objective, and deserved to be withdrawn. This being a policy decision of the Government, this Court would not be justified in interfering with the change of policy by the State Government, particularly when the change of policy does not appear to be irrational or perverse or contrary to Wednesbury principle.
37. It was then submitted that the impugned Government Resolutions infringed Articles 14 and 19(l)(g) of the Constitution of India. In Krishnan Kakkanth v. Government of Kerala and others, , it was held by the Apex Court that to ascertain unreasonableness and arbitrariness in the context of Article 14 of the Constitution of India, it is not necessary to enter upon any exercise for finding out the wisdom in the policy decision of the State Government. It is immaterial whether a better or more comprehensive policy decision could have been taken. It is equally immaterial if it can be demonstrated that the policy decision is unwise and is likely to defeat the purpose for which such decision has been taken. Unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever, or it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution of India, the policy decision cannot be struck down. It should be borne in mind that except for the limited purpose of testing a public policy in the contest of illegality and unconstitutionality, courts should avoid embarking on unchartered ocean of public policy.
38. So far as infringement of fundamental right under Article 19(l)(g) of the Constitution of India is concerned, it must have a direct impact on the restriction of the freedom to carry on trade and not ancillary or incidental effect on such freedom to trade arising out of any Governmental action. In that case, it was held that no restriction had been imposed on the trading activity of dealers in pumpsets in the State of Kerala including northern region, comprising eight districts. Even in such an area, a dealer was free to carry on his business. Such dealer, even in the absence of the said circular, could not claim as a matter of fundamental right guaranteed under Article 19(l)(g) that a farmer or agriculturist must enter into a business deal with such trader in the matter of purchase of pumpsets. Similarly, such trader also could not claim that the Government should also accept him as an approved dealer of the Government. The trading activity in dealership of pumpsets had not been stopped or even controlled or regulated generally. The dealer can deal with purchasers of pumpsets without any control imposed on him to carry on such business. The obligation of purchase from approved dealer had been fastened only to such farmer or agriculturist who volunteered to accept financial assistance under the scheme on various terms and conditions. In these circumstances, it was held that the fundamental right guaranteed under Article 19(1)(g) of the Constitution of India had not been infringed by the impugned circular.
39. The learned Advocate General submitted that so far as the facts of the instant case are concerned, the petitioners as much as any other citizen are entitled to carry on their trade in the sale of Zhunka Bhakar. The impugned circular did not prohibit any one from carrying on trade or business in Zhunka Bhakar. By the impugned Government orders, all that the Government has done is to withdraw the facility which it had earlier extended to the licensees for the sale of Zhunka Bhakar at a subsidised price. This was because the Government came to the conclusion that the Scheme had failed. Otherwise, there was no restriction on the licensees to carry on their normal trading activities, and they were free to sell Zhunka Bhakar in accordance with law. There was, therefore, no restriction whatsoever on the right of the petitioners to carry on the business of sale of Zhunka Bhakar, and therefore, no question of infringement of the fundamental right guaranteed under Article 19(l)(g) of the Constitution of India arose in this case. The contention of the learned Advocate General must be accepted because what has been withdrawn is the Scheme for sale of Zhunka Bhakar through the Zhunka Bhakar Centres established by the State Government, and not the right of any citizen to carry on business in the sale of Zhunka Bhakar. The petitioners are free to sell Zhunka Bhakar to their customers and their freedom to do so is not curtailed. They cannot insist that the Government must provide them stalls for the sale of Zhunka Bhakar.
40. Moreover in determining whether there was any unreasonable restriction on fundamental right to carry on business, the reasonableness of restriction is to be determined in an objective manner and from the point of interest of general public and not from the stand point of interest of the persons upon whom the restrictions are imposed or upon abstract considerations. The restriction cannot be said to be unreasonable merely because it operates harshly on certain individuals or even if the persons affected are petty traders.
41. We have found nothing in the policy which smacks of unreasonableness or arbitrariness. In considering a challenge to a policy decision of the Government, a Court must confine itself to testing the policy in the context of illegality and unconstitutionality. It is not necessary for the Court to enter upon any exercise for finding out the wisdom in the policy decision, and whether a better and more comprehensive policy could have been formulated. The wisdom of the policy is beyond the pale of judicial scrutiny in such matters. The Court will only examine the challenge on the ground that the policy decision is demonstrably capricious or arbitrary, and not informed by any reason whatsoever or that it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution. If these vices do not exist, the policy decision cannot be struck down on the ground of lack of wisdom or effectiveness of the policy. As we have observed earlier, we do not find the impugned Government orders suffering from any such vice.
42. Counsel for the petitioners did place reliance on two decisions of the Supreme Court viz, Bombay Hawker's Union and Ors, v. Bombay Municipal Corporation and ors. and AIR 1989 SC 1998, Sodden Singh and etc. v. New Delhi Municipal Committee and another etc. We have considered these decisions, but we find that the principles laid down in these decisions do not help the petitioners. As we have observed earlier, in the facts of this case, we find that no restriction whatsoever has been placed on the right of the petitioners to deal in Zhunka Bhakar, and all that the Government has decided as a matter of policy is not to grant any special assistance for the sale of Zhunka Bhakar, as it had done earlier, since it had come to the conclusion that the Scheme had failed to achieve its objective. There is no infringement at all of the right guaranteed under Article 19(l)(g) of the Constitution of India. Moreover, the petitioners cannot compare themselves with hawkers who claimed a right to carry on their hawking business, not because the sites were made available to them by the Corporation, but on the basis that they had been carrying on the said business for many years and had, therefore, acquired a right to do so in future. In the instant case, the Zhunka Bhakar Centres are the creation of a Scheme pursuant to a Government policy. If the policy is changed, and the Scheme invoked, the petitioners can claim no right to hold on to the stalls allotted to them under the Scheme.
43. Mr. Apte and Mr. Jahagirdar, learned Counsel appearing on behalf of some of the petitioners who are licensees of Zhunka Bhakar Centres in Mumbai submitted that so far as Zhunka Bhakar Centres located in Mumbai are concerned, their case is clearly distinguishable. Two grounds were submitted on their behalf. Firstly, that so far as Mumbai is concerned, from the very beginning, no subsidy was given to the licensees of Zhunka Bhakar Centres. Secondly, it was submitted that the material available to the Government did not specifically indicate that the Zhunka Bhakar Centres in Mumbai were not being run in accordance with the terms and conditions of the licence and the agreement. According to them, the Scheme was a great success in Mumbai. The submissions are without merit. No doubt, the Scheme was implemented in the urban as well as rural areas, but the Scheme was the same. From the very beginning, no subsidy was given to the Zhunka Bhakar Centres located in Mumbai, but the subsidy which was given to the Zhunka Bhakar Centres in rural areas was also withdrawn with effect from 1st April, 1999. We have earlier referred to the reasons for withdrawal of the subsidy. The learned advocate General submitted that so far as Zhunka Bhakar Centres in Mumbai are concerned, the Government was satisfied that the licensees were guilty of breach of the conditions of the licence, and the agreement inasmuch as these Centres had converted themselves into fast food joints, and had lost their character as Zhunka Bhakar Centres. Perhaps, the business of running fast food joints is more lucrative than running a Zhunka Bhakar Centre, and it may be that tempted by these considerations, the licensees permitted their Centres to be converted into fast food joints and operated them in the same manner as any ordinary establishment doing catering business having lost their character as Zhunka Bhakar Centres. He, therefore, submitted that there was no justification for treating the Zhunka Bhakar Centres in Mumbai on a different footing.
44. As we have observed earlier, in considering the success or failure of a Scheme, the Government is required to take an overall view of the matter. There were only 240 Zhunka Bhakar Centres in Mumbai which formed a very small proportion of the total number of Zhunka Bhakar Centres established in the State of Maharashtra under the Scheme. We, therefore, agree that there can be no justification for treating Zhunka Bhakar Centres in Mumbai on a different footing than Zhunka Bhakar Centres located elsewhere in the State. If the State Government was satisfied that the Scheme had substantially failed, it was within its authority to take a policy decision to do away with the Scheme in its entirety. If it took such a decision, and ordered the closure of the Scheme, the fact that in some pockets the Scheme was successfully implemented, would not vitiate such a policy decision.
45. The petitioners have relied on section 60 of the Indian Easements Act, 1882, and submitted that the State had no right to revoke the licence inasmuch as the licensees had, acting upon the licence, executed work of permanent character and incurred expenses in the execution. The submission is ill-founded. Firstly, the work executed cannot be said to be of a permanent character. The Government itself had prescribed the plan for the construction of structures to be used as Zhunka Bhakar Centres. The stall was to be erected on the land allotted by the Government having a wall of single brick masonry with roof of A, C. Sheet on iron frame work, and the shell for the counters of block board but with aluminium top or lamination. The floor of the stall was to be at the ground level with IPS finish or marble mosaic tiles. Such a structure cannot be characterized as work of permanent character. The walls were to be of single brick masonry and the roof of A. C. Sheet was to be fixed on iron framework. This itself is indicative of the temporary nature of the structure. The roof could be dismantled at any time and the single brick wall could also be demolished when necessary. The plan sanctioned for the structure leaves no manner of doubt that the structure was of temporary nature, and not a work of permanent character as envisaged under section 60 of the Indian Easements Act. Moreover, in terms of the agreement executed with the Government of Maharashtra, the licensees had agreed that the land shall be granted free of cost but the permission granted was not in any manner be deemed to convey to the licensee any right to, or over, or any interest in, the said land or any easement thereof. The petitioners had, therefore, given up their easementary right, if any, under the agreement, and they cannot now be heard to say that they had acquired easementary right under section 60 of the Indian Easements Act which rendered their licence irrevocable.
46. Mr. Nitin Pradhan, appearing on behalf of the petitioners in Writ Petition No. 3563 of 2000, placed reliance on Article 41 of the Constitution of India, and submitted that the action of the State was in breach of Article 41 of the Constitution of India as it was bound to make effective provision for securing the right to work and to public assistance in cases of unemployment. He submitted that as a result of the closure of the Scheme, many persons will be rendered unemployed. The spirit of Article 41 of the Constitution of India was attracted and the directive principle as contained in Article 41 of the Constitution of India did not justify the governmental action in this case.
47. We have earlier held that the Scheme was primarily aimed at supplying staple food to the common man in the State of Maharashtra at subsidised price. Incidentally, in the implementation of the Scheme, certain categories of persons were to be given preference in the matter of selection as licensees. If the Scheme failed to achieve its objective, and the Government took a conscious decision bona fide on the basis of relevant material on record that the Scheme had failed and must be closed, the licensees cannot be permitted to plead Article 41 of the Constitution of India in defence, particularly when the Scheme failed primarily on. account of the improper working of the Scheme by the licensees themselves. The Government had made an effort to provide them employment, but if the licensees, rather than implementing the Scheme of the Government, chose to implement their own Scheme of running such Centres as fast food counters, the Government cannot be blamed. In these facts and circumstances, we are convinced that reliance on Article 41 of the Constitution of India is misconceived.
48. We, therefore, find no merit in any of the submissions urged on behalf of the petitioners. These Writ Petitions, therefore, fail and are dismissed, but without any order as to costs.
49. After the Judgment was pronounced, Counsel for the petitioners submitted that during the pendency of the Writ Petitions, there was an understanding that action to remove the stalls will not be taken. The Government Pleader for the State does not dispute this factual position.
50. The prayer made on behalf of the petitioners that the same position should continue for another 8 weeks is, therefore, reasonable and granted.
51. Writ petitions dismissed.