Smt. Shiv Kumari Soni vs State Of U.P. Thru Prin.Secy. ...
2021 Latest Caselaw 11122 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved on 15.07.2021
 
Delivered on   22.09.2021
 
Court No. 2							
 
									
 
Case :- MISC. BENCH No. - 14773 of 2021
 
Petitioner :- Smt. Shiv Kumari Soni
 
Respondent :- State Of U.P. Thru Prin.Secy. Energy Lucknow And Ors.
 
Counsel for Petitioner :- Ved Prakash Yadav
 
Counsel for Respondent :- C.S.C.,Manish Jauhari
 

 
Hon'ble Rajan Roy,J.

Hon'ble Ravi Nath Tilhari,J.

(Per: Hon'ble Ravi Nath Tilhari,J.)

1. Heard Sri Ved Prakash Yadav, learned counsel for petitioner, learned Additional Chief Standing Counsel for State-opposite party No.1 and Shri Manish Jauhari, learned counsel for opposite parties no. 2 & 3.

2. This petition has been filed seeking a writ, order or direction in the nature of mandamus commanding the State of U.P. through Principal Secretary, Department of Energy-opposite party No.1 and the Managing Director, Madhyanchal Vidyut Vitran Khand-4A, Lucknow-opposite party No.2 to direct the Executive Engineer, Madhyanchal Vidyut Vitran Khand-2, Sultanpur, opposite party No.3 to give the admitted amount being the total remaining rental amount with interest to the petitioner as well as to direct the Managing Director, Madhyanchal Vidyut Vitran Khand, Lucknow to consider and take appropriate decision in pursuance of Annexure Nos. 6 and 7 submitted before him by the District Magistrate, Sultanpur.

3. The facts of the case as submitted by the learned counsel for the petitioner are that for electrification in Rural areas of District Sultanpur, under the "Rajiv Gandhi Gramin Vidyutikaran Scheme", the Executive Engineer, Madhyanchal Vidyut Vitran Khand-2 Sultanpur had given work to M/s Variegate Projects Private Limited, Hyderabad (herein after called as "the Firm"). The Firm entered into a rental agreement dated 01.03.2015 with the petitioner and took on lease the petitioner's premises for storing electrical goods subject to the terms and conditions mentioned in the rental agreement. The Firm was later on blacklisted and consequently when the opposite party No.3 tried to take possession of the electrical goods stored by the Firm, to shift it to its departmental store, the petitioner raised objection that the Firm had not made payment of rent and unless the payment was made, the petitioner would not let the electrical goods to be lifted and shifted from her premises. It has been submitted that the Executive Engineer apprised the District Magistrate, Sultanpur about the said situation vide letter dated 06.08.2016 and in pursuance thereof, the Sub Divisional Magistrate, Lambhua was directed to resolve the dispute. Thereafter on 08.08.2016 the Executive Engineer assured the petitioner for payment of the entire arrears of rent due against the Firm out of which payment of Rs. 1,10,000/- vide Cheque No. 039028 and of Rs. 3,97,767/- vide cheque No. 87174, drawn on Punjab National Bank, District Sultanpur, in total amounting to Rs. 5,07,767/-, was paid to the petitioner by the opposite party No.3 with promise to make payment of the balance of Rs. 5,32,707/- after shifting of the electrical goods. However, despite repeated request as the payment was not made, the petitioner submitted representation to the Managing Director-opposite party No.2 before whom the District Magistrate Sultanpur had also submitted its reports vide letters dated 17.11.2020, 02.01.2021 and 25.02.2021, but till date neither any decision has been taken by the Managing Director nor the payment has been made.

4. On our specific query to the petitioner's counsel, whether opposite party Nos. 1 to 3 are party to the rental agreement he submitted that the agreement is only between the petitioner and M/s Variegate Projects Private Limited, Hyderabad. However, he further submitted that in view of the assurance given and the promise made by the Executive Engineer-opposite party No.3, to make payment of the entire outstanding rent amount the opposite parties made themselves liable for payment of the entire rent amount.

5. Learned Additional Chief Standing Counsel submitted that the District Magistrate, Sultanpur has already sent letters to the Managing Director, Madhyanchal Vidyut Vitran Khand-Lucknow-opposite party No.2 and the payment, if any, is to be made by the opposite party Nos. 2 and 3.

6. Sri Manish Jauhari, learned counsel for opposite party Nos. 2 and 3 submitted that the rental agreement was between the petitioner and the Firm. There is no liability of the opposite party Nos. 2 and 3 for payment of the arrears of rent due against the Firm. He submitted that the payment of Rs. 5,07,767/- was made by the Executive Engineer-opposite party No.3 for the period with effect from 18.01.2016 up to August, 2016, during which, the opposite parties had deputed its personnel for the safety and security of the electrical goods stored in the petitioner's premises by the firm. He further submitted that there is no statutory or any contractual liability of the opposite parties for payment as prayed by the petitioner, and any promise or assurance, even if given by the Executive Engineer, cannot bind the opposite party Nos. 2 and 3 as nothing has been brought on record to show that any such promise was made or/and the Executive Engineer had been authorized to make any such promise to bind the opposite party Nos. 2 and 3.

7. We have considered the submissions advanced by the learned counsels for the parties and perused the material on record.

8. A perusal of the rental agreement, Annexure 1 to the writ petition, shows that it is only between the petitioner and M/s Variegate Projects Private Limited, Hyderabad. On this point there is no dispute. Any statutory or even any contractual liability of the opposite party Nos. 1 to 3 for payment of the arrears of rent of the M/s Variegate Projects Private Limited could not be shown to us.

9. The Sheetanchor of the petitioner is the letter dated 18.05.2017 and the letter dated 17.11.2020, Annexure No.6, in support of the submission that the promise was made by the Executive Engineer-opposite Party No.3 to the petitioner to make the payment of the entire outstanding amount of rent of the firm.

10. We have perused the aforesaid documents. By letter dated 18.05.2017 the Sub Divisional Magistrate, Lambhua, District Sultanpur had directed the then Executive Engineer (Second), Electricity Distribution Division, Sultanpur to ensure payment of the balance amount of Rs. 532707/- to the petitioner mentioning in the said letter that on 08.08.2016 the said Executive Engineer, in presence of the Sub Divisional Magistrate, Lambhua, the Circle Officer, Lambhua and the Station House Officer Kotwali Dehat had given assurance to the petitioner that the payment of the balance amount of Rs. 5,32,707/- would be made without delay as it was not possible at that time to make full payment of arrears of rent amounting to Rs. 1040474/- out of which an amount of Rs. 5,07,767/- was paid vide two cheques.

11. The letter No. 283 dated 17.11.2020 of the District Magistrate, Sultanpur, to the Managing Director although refers to the letter dated 18.05.2017, but also mentions about the letter of the Superintending Engineer dated 07.10.2020 to the effect, inter alia, that on 08.08.2016 a consensus was arrived at between the petitioner and the electricity distribution division for payment of rent for the period the electricity distribution division deputed its Guard for security and safety of the electrical goods stored in petitioner's premises upto the date i.e. 08.08.2016 at the rate of the same rent as was settled between the petitioner and the firm, of which full payment was made to the petitioner. The letter dated 17.11.2020 further mentions that the petitioner had denied any such agreement dated 08.08.2016 to have been signed by her.

12. Thus from the perusal of the record before us, we find that there is a serious dispute between the parties as regards promise made or assurance given by the Executive Engineer-opposite party No.3 for payment of the entire outstanding arrears of rent as also that the payment of Rs. 5,07,767/- was part payment or it was full payment for the period w.e.f. 18.01.2016 up to 08.08.2016 in pursuance of the alleged agreement dated 08.08.2016 which agreement itself is disputed by the petitioner.

13. In a petition under Article 226 of the Constitution of India, the High Court has jurisdiction to try issues both of fact and law and merely because in considering the petitioner's right to relief, question of fact may fall to be determined, the High Court is not deprived of its jurisdiction to entertain a writ petition under Article 226. However, exercise of jurisdiction is discretionary and the discretion is to be exercised on sound judicial principles. When the petition raises a question of fact of complex nature requiring the oral evidence for determination or the nature of claim is such that it cannot be conclusively determined on the basis of material available on the record of the writ petition or that it would be inappropriate to try such issues in the writ jurisdiction for analogous reasons, the High Court may refuse to exercise its discretionary writ jurisdiction.

14. It will be apt to refer the case of Hari Krishna Mandir Trust vs. State of Maharashtra and Ors. [(2020) 9 SCC 356], wherein in paragraphs 104 & 105, Hon'ble Supreme Court has held as under:-

"104. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. Reference may be made inter alia to the judgments of this Court in Gunwant Kaur v. Municipal Committee, Bhatinda 11 and State of Kerala v. M. K. Jose, this Court held : (SCC pp. 442-43, para 16)

"16. Having referred to the aforesaid decisions, it is obligatory on our part to refer to two other authorities of this Court where it has been opined that under what circumstances a disputed question of fact can be gone into. In Gunwant Kaur v. Municipal Committee, Bhatinda, it has been held thus: (SCC p. 774, paras 14-16)

"14. The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit-in-reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons.

15. From the averments made in the petition filed by the appellants it is clear that in proof of a large number of allegations the appellants relied upon documentary evidence and the only matter in respect of which conflict of facts may possibly arise related to the due publication of the notification under Section 4 by the Collector.

16. In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute and the present, in our judgment, is a case in which in the interests of both the parties the High Court should have entertained the petition and called for an affidavit-in reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit." (emphasis supplied)

105. In ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd., this Court referring to previous judgments of this Court including Gunwant Kaur (supra) held: (ABL International Ltd. Case, SCC pp. 568-69 & 572, paras 19 & 27)

"19. Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Gunwant Kaur this Court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact.

27. From the above discussion of ours, the following legal principles emerge as to the maintainability of a writ petition:

a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.

b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule;

c) A writ petition involving a consequential relief of monetary claim is also maintainable."

15. In view of the complex nature of the disputed question of fact as aforesaid, we consider it not appropriate to try this question in exercise of our writ jurisdiction.

16. With respect to the submission of the petitioner's counsel based on the doctrine of promissory estoppel we are of the considered view that where the person acting upon the promise made by the Government or the public authority has changed his position, this doctrine can be pressed into aid to compel the Government or the public authority to carry out a representation or promise made, but there are also well recognized exceptions and as this doctrine is equitable one it 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. Most importantly the doctrine of promissory estoppel cannot be invoked in the abstract. To invoke this doctrine clear, sound and positive foundation must be laid in the petition itself by the party invoking the doctrine. We may refer the judgment of the Hon'ble Supreme Court in the case of Union of India and Another Etc. Etc. vs. V.V.F. Limited and Another Etc. Etc. [2020 SCC Online SC 378] in which, in paragraph 41 it has been held as under:

"41. In the case of Kasinka Trading (supra), in paragraphs 12, 20 and 23, it is observed and held as follows:

"12. 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 are 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.

20. The facts of the appeals before us are not analogous to the facts In Indo-Afghan Agencies [(1968) 2 SCR 366 : AIR 1968 SC 718] or M.P. Sugar Mills [(1979) 2 SCC 409 : 1979 SCC (Tax) 144 : (1979) 2 SCR 641]. In the first case the petitioner therein had acted upon the unequivocal promises held out to it and exported goods on the specific assurance given to it and it was in that fact situation that it was held that Textile Commissioner who had enunciated the scheme was bound by the assurance thereof and obliged to carry out the promise made thereunder. As already noticed, in the present batch of cases neither the notification is of an executive character nor does it represent a scheme designed to achieve a particular purpose. It was a notification issued in public interest and again withdrawn in public interest. So far as the second case (M.P. Sugar Mills case [(1979) 2 SCC 409 : 1979 SCC (Tax) 144 : (1979) 2 SCR 641]) is concerned the facts were totally different. In the correspondence exchanged between the State and the petitioners therein it was held out to the petitioners that the industry would be exempted from sales tax for a particular number of initial years but when the State sought to levy the sales tax it was held by this Court that it was precluded from doing so because of the categorical representation made by it to the petitioners through letters in writing, who had relied upon the same and set up the industry.

23. The appellants appear to be under the impression that even if, in the altered market conditions the continuance of the exemption may not have been justified, yet, Government was bound to continue it to give extra profit to them. That certainly was not the object with which the notification had been issued. The withdrawal of exemption "in public interest" is a matter of policy and the courts would not bind the Government to its policy decisions for all times to come, irrespective of the satisfaction of the Government that a change in the policy was necessary in the "public interest". The courts, do not interfere with the fiscal policy where the Government acts in "public interest" and neither any fraud or lack of bona fides is alleged much less established. The Government has to be left free to determine the priorities in the matter of utilisation of finances and to act in the public interest while issuing or modifying or withdrawing an exemption notification under Section 25(1) of the Act."

Thus, it can be seen that this Court has specifically and clearly held that the doctrine of promissory estoppel cannot be invoked in the abstract and the courts are bound to consider all aspects including the objective to be achieved and the public good at large. It has been held that while considering the applicability of the doctrine, the courts have to do equity and the fundamental principles of equity must forever be present to the mind of the court, while considering the applicability of the doctrine. It is further held that 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. It is further held that an exemption notification does not make items which are subject to levy of customs duty etc. as items not leviable to such duty. It only suspends the levy and collection of customs duty, etc., wholly or partially and subject to such conditions as may be laid down in the notification by the Government in "public interest". Such an exemption by its very nature is susceptible of being revoked or modified or subjected to other conditions. The supersession or revocation of an exemption notification in the "public interest" is an exercise of the statutory power of the State under the law itself. It has been further held that under the General Clauses Act an authority which has the power to issue a notification has the undoubted power to rescind or modify the notification in a like manner. It has been observed that the withdrawal of exemption "in public interest" is a matter of policy and the courts would not bind the Government to its policy decisions for all times to come, irrespective of the satisfaction of the Government that a change in the policy was necessary in the "public interest". It has been held that where the Government acts in "public interest" and neither any fraud or lack of bonafides is alleged, much less established, it would not be appropriate for the court to interfere with the same."

17. The rent agreement was between the petitioner and the firm. Admittedly, official opposite parties were not party to it. The official opposite parties i.e. Madhyanchal Vidyut Vitran Nigam Limited and its officials entered into an agreement with the firm naming Variegate Projects Private Limited for rural electrification. Petitioner was not a party to it. It appears in pursuance to the said contract between the firm and official opposite parties the firm took the premises of the petitioner for storing electrical goods etc, but did not pay the rent. In the meantime, the firm was blacklisted. On such blacklisting the official opposite parties stationed guards at the premises for safety of the electrical goods kept in the rental premises as they belonged to them. For that period rent or consideration whatever it may be called was paid by the official opposite parties to the petitioners. In so far as other dues i.e. rent payable by the firm, it is a dispute between the petitioner and firm. We fail to comprehend as to how official opposite parties can be made liable in this regard. There in nothing on record to show that the Executive Engineer was ever authorized by the Corporation to give any such assurance, even if given, on which aspect we are not recording any finding, for payment of such rent.

18. We have already considered above that the writ petition involves disputed questions of fact and consequently what we find is that a clear, sound and positive foundation has not been laid in the writ petition for invoking the doctrine of legitimate expectation.

19. We are of the opinion that such matters are not amenable to writ jurisdiction merely because the official opposite parties are instrumentalities of State, as, essentially, it is a dispute pertaining to rent involving a money claim and complicated as also disputed question of fact as also pinciples of civil law are involved. The petitioner may therefore pursue other civil remedies as may be prescribed in law.

20. Observation made herein are only for purpose of these proceedings and shall not have any bearing on such other proceedings, if initiated by the parties herein.

21. In view of the aforesaid, the writ petition is dismissed, but with the aforesaid observations.

 

 
Order Date :- 22.09.2021
 
Arvind
 

 

 
(Ravi Nath Tilhari,J.)          (Rajan Roy,J.)