Davinder Singh vs State of J&K and Anr.

In this writ petition promise made by the respondents, which according to the petitioner, would cast an obligation on the respondents, is sought to

be enforced. The facts lie in brief compass.

Petitioner who claims to be permanent resident of the State had a plot of land measuring 4 kanals situated at Gugji Bagh estate, Narsingh Garb

Srinagar which was granted to him by the State on leasehold basis for a period of 99 years. The aforesaid plot is said to have been resumed by the

State Govt. for public purpose. Instead of using it for public purpose it was allotted to two individuals namely, Dr Hafiz Ullah and Mr. Trali. The

arbitrary resumption of land from the petitioner and its subsequent allotment to private individuals came to be challenged by the petitioner before

the State High Court in writ petition No. 106/1957.

During the pendency of the writ petition respondent No. 2 is said to have under the orders of the Revenue Minister informed the petitioner's

counsel, late Shri B.N. Nehru in writing dated 8101957 that the writ petition filed by the petitioner in the High Court be withdrawn and in

consequence whereof the land in question |shall be resorted to the petitioner by withdrawing the order of resumption. This is reflected by Annexure

'A' to the petition. On this assurance the petitioner's counsel is said to have moved an application in the High Court on 31101957 seeking to

withdraw the writ petition and the court granted permission in this regard. Copy of the application and the order of the court thereon dated

31101957 permitting withdrawal of the petition is reflected by Annexure 'B' to the petition.

Petitioner further submits that the assurance extended to the petitioner in Annexure A was not implemented and the petitioner had moved from

pillar to post to seek the implementation of the assurance, Petitioner is said to have made representation to the respondents either for restoration of

the original plot of land or in the alternative for allotment of a plot of land equal in value and measurement in Jammu or in Srinagar. In 1981

petitioner was informed by the under Secretary to the Chief Minister that his application for releasing the land in his favour or for allotment of land

in his favour was to be forwarded to the Commissioner Housing and Urban Development for examination and appropriate action under rules. He

was asked that he should expect to hear from the said Commissioner directly. This is reflected by AnnexureC to the writ petition. Petitioner is said

to have made another representation on 2191982 to the Chief Minister for releasing of plot in his favour or for allotting him a plot in the alternative.

He is said to have used good offices of one Smt. Amarjeet Kaur, member Parliament, 5 Meena Bagh, New Delhi. In response to his

representation contained in Annexure D, the Chief Minister on 24111982 is said to have written to said Smt. Amarjeet Kaur that pending case of

Shri Davinder Singh Jaswal was being finalized. The department will call Shri Jaswal very soon. This is reflected by Annexure'E'. Vide another

letter the Chief Minister is said to have informed Smt. Amarjeet Kaur that the petitioner's case had very little merit, therefore his grievance has not

been redressed despite best efforts. The State Govt, is said to have been vested with right of resumption of land and allotment of alternative land is

only a matter of favour. Smt. Amarjeet Kaur was assured that because of her personal intervention the matter of allotment of land to the petitioner

in one of the housing colonies as and when the land is available shall be considered and the concerned Secretary is asked to process the case for

early orders. This is reflected by Annexure 'F'.

Respondents have failed to file the counter and ultimately on 2281986 the Court directed that no further opportunity can be granted for filing the

counter. Therefore the case be listed for hearing. On 2561986 last opportunity of three weeks for filing the counter was granted. This petition

therefore is heard without there being any reply from the other side.

The correctness of the copies of various orders, communications and letter is not challenged by the other side. Same is true about the averments

contained in the writ petition. Certain positive assertions in various paper of the writ petition have remained unrebutted and the petition is supported

by an affidavit. The factual assertions are said to be true as per the affidavit. I have therefore no option but to take the pleas raised in the writ

petition as correct and on the basis of these pleas the question which falls for determination will be as to whether the relief prayed for can be

granted to the petitioner and whether the assurance given to the petitioner by the respondents can cast an obligation on the respondents to allot a

piece of land in the alternative to the petitioner.

Mr. R.S. Mehta appearing for the petitioner has submitted that the respondents are under an obligation to allot a plot of land to the petitioner in

any of the Housing colonies either in Srinagar or in Jammu. His contention was that on an express assurance, petitioner had withdrawn the writ

petition which challenged the resumption of land for public purpose and allotment of the same to private individuals. Had the assurance not been

given to the petitioner that land will be released in his favour, he would not have withdrawn the writ petition. The repeated assurances thereafter

would show that petitioners right to have the land on leasehold basis equal in measurement and value of the land which was resumed was

acknowledged by the respondent and on that acknowledgement of the petitioner's right, petitioner surrendered his right to contest the writ petition.

Therefore, by applying the doctrine of promissory estoppel respondents also can be directed to fulfill their obligation.

Plot of land measuring 4 kanals is said to have been granted to the petitioner on leasehold basis for 99 years. This assertion has remained

unrebutted. Said land could be resumed under the Land Grants Act if certain conditions mentioned in the Said Act had existed even before the

expiry of lease. Leasehold land can be resumed but a set procedure is to be followed in that regard. There is nothing on the record to show that

any procedure was followed by the respondents for resuming the leasehold land of the petitioner in 1957. The said land was granted to two private

individuals and was not required for public purpose, is also unrebutted.

The letter contained in Annexure 'A' addressed by the Director Land Records to the petitioner's counsel about the withdrawal of the writ

petition on the condition that the plot in question will be released from the order of resumption was acted upon. This letter was given unconditional

undertaking to the petitioner that on his withdrawing the writ petition, plot of land which was resumed would be released ""from the order of the

resumption. It is reflected by Annexure B that the petitioner acted upon that undertaking and made a request to the court that he be permitted to

withdraw in view of the letter of the Director Land Records contained in Annexure A. The withdrawal application made by the counsel for the

petitioner in writ petition No. 106/1957 has given full details as to why the writ petition withdrawn. Therefore it is proved beyond that on the

assurance which is in the 'nature of undertaking extended by the respondents, petitioner had altered his position and acted upon it. Subsequently

they had assured the petitioner through Smt. Amarjeet Kaur that the case pertaining to resumption of his land and allotment to him of alternative

land was being examined.

After the land was allotted in to private individuals it would be difficult for the state to recover the possession of the land from those two

individuals. Those individuals are not parties to this writ petition. Therefore petitioner's prayer that the same land be restored to him which was

resumed from him has become impracticable. Such a course if permitted to be adopted is naturally to effect the interests of third parties and may

create serious complications. But the petitioners request that he was made to withdraw the writ petition on the ground that the land will be restored

to him, therefore he is entitled to the plot of land which is equal in value and measurement to the resumed land, cannot be said to be without

substance.

State is not permitted to be unfair to its citizens. Our social order is based on justice and equity. No authority is permitted to be unjust or

absolute in dealing with the citizens. The authorities are obliged to act fairly in discharge of their functions in a value based society. State is

necessarily required to act honestly also implying thereby if it has undertaken to do something to redress the grievances of a citizen effecting his

rights, it cannot at later stage turn round and say it is incapable of redressing the grievance and assurance given by it on an earlier stage was only a

ruse or a pretence. On the promise extended by the State if a citizen alters his position that gives him cause of action to seek the enforcement of the

promise which the State had extended to him.

The principle of promissory estoppels can to be recognized as affording cause of action to a citizen has received judicial recognition in our

country. Refer to (M.P. Sugar Mills case reported in AIR 1979 S.C. 621). In the present case there is evidence that certain promise had been

extended to the petitioner under the orders of the Revenue Minister and the petitioner had acted on that promise and altered his position.

Therefore, the State will not be permitted to back out from the promise and cause prejudice to the petitioner.

It is now well settled that doctrine of promissory estoppels can be applied against the Govt. or the governmental agency where the interests of

justice and fairness dictate such a course to be adopted Doctrine of estoppels is an equitable doctrine and it must yield when equity so requires. At

the same time it is to be remembered that if by enforcing a promise, public interest is likely to be prejudiced, the courts generally strike the balance

between public interest and promissory estoppels and pronounce its verdict accordingly. But while claiming exception from liability to carry its

promise the State has to place definite ground of necessity or expedience. State ought to bring out complete details before the court as to why it is

not possible to enforce the promise made by it.

In the present case, in the absence of details, it cannot be said that the State is not bound to fulfill its assurance extended to the petitioner on

which the petitioner has acted upon. After causing prejudice to the petitioner, State will not seek exemption of liability to enforce the promise given

by it to the petitioner. However the plot of land resumed from the petitioner is not available. Therefore, the State ought to have considered the

request of the petitioner for allotment of alternative land either at Srinagar or at Jammu as in suggested by the petitioner Petitioner is not keen now

to have the same plot of land restored to him. But the wants to plot of land of equal measurement and value either at Srinagar or at Jammu in any

of the housing colonies where the land is available to the State.

State government seems to have been under the mistaken impression that it was not bound to fulfill its promise. It has considered the allotment

of land to the petitioner as favour. It may be a favour if it was to be allotted initially, but the plot of land is to be allotted in lieu of something which

the State has done and on the basis of the promise which the State has made. Therefore to suggest that the allotment of land was matter of favour

does not seem to be in accord with the concept of fair play. Petitioner has been prejudiced. Therefore his request for allotment of plot of land

either at Srinagar at Jammu is to be considered by the state and he is to be compensated by allotting a plot of land. Basis of this is furnished by the

state itself in AnnexureA.

For the reasons stated above, I feel that it is a fit case in which a direction should be issued to the state that they should consider the request of

the petitioner for allotment of a plot of land in any of the Housing colonies either at Srinagar or at Jammu. Subject to the availability of land,

petitioner should be allotted the piece of land either at Srinagar or Jammu approximately equal in measurement and value of the plot of land which

was resumed from him at Gugji Bagh Srinagar. While allowing the writ petition, I make a command accordingly.

There will be no order as to costs.