Satyam Diagnostics Centre vs State of Rajasthan and Others

Arun Bhansali, J.—This writ petition has been filed by the petitioner firm under Article 226 of the Constitution of India seeking the following reliefs:-

"a) Restrain the respondent from installing and operating the MRI machine at the MGH Hospital, Jodhpur;

b) Hold that the respondents are not permitted to install and operate any other MRI machine till the subsistence of agreement dated 04.02.2009;

c) Restrain the respondents from entering into and/or executing any agreement/contract with any other party for operating the MRI machine at MG. Hospital;

d) Direct the respondents to execute MOU/agreement with the Petitioner for operating the MRI Machine at the MGH Hospital, Jodhpur as per the Agreement dated 4.2.2009;

e) Call for the entire record in respect of the agreement dated 4.2.2009 and in respect of the tender in relation to the purchase of MRI machine at MG. Hospital;

f) Any other appropriate writ, order or direction which may deems just and proper in the facts and circumstances of the case may kindly be issued in favour of the Petitioner; and

g) Award the cost of this petition to the Petitioner against the respondents."

The petition has been filed with the averments that the petitioner entered into a licence agreement dated 04.02.2009 (''the agreement''), after undergoing due process of tender with the respondents and in terms of the agreement a Magnetic Resonance Imaging (''MRI'') machine was installed at Mathuradas Mathur Hospital, Jodhpur (''MDM Hospital'') and the same commenced operations from January, 2011; the petitioner invested a sum of Rs. 6 crores; terms of the agreement are being followed by the petitioner; the agreement is valid for a period of ten years from the date of commencement of business of MRI investigations and has a provision for extension of the licence upto five years after the completion of ten years with the mutual agreement of both the parties; it is claimed that the MRI machine is being run by the petitioner for 24 hours a day, 365 days a year without any break since January, 2011 at affordable and subsidized rates; the petitioner is having a capacity of conducting about 80 to 100 MRI scans every day and is rendering services to approximately 40 to 50 patients per day; under the agreement, quarterly review of the performance of the petitioner-licencee is envisaged, however, no complaint in the working has been observed/pointed out to the petitioner firm.

It is then claimed and which is essentially the dispute raised in the present writ petition that the agreement exclusively and explicitly restrict installation of any other MRI machine in any of the associated group of hospitals of Dr. S.N. Medical College, Jodhpur during the currency of the agreement, reference has been made to Clauses 21, 22 and 23 of the agreement in this regard; to the surprise/shock of the petitioner, it came to its knowledge that a new MRI machine is being installed at Mahatma Gandhi Hospital, Jodhpur (''MG Hospital'') and diagnostic services would be rendered and from the newspaper report, it was fortified that a machine has already been purchased from Philips Electronics India Limited and is ready to be installed and commence its work; the installation of new MRI machine at MGH is alleged to be illegal, unjustified and against the unequivocal terms and conditions of the agreement and that the same amounts to material breach of contract.

It is averred that on coming to know of the intentions of the respondents, a notice for demand of justice dated 25.03.2015 was sent to the respondents, wherein, the respondents were called upon not to breach the agreement by setting up the MRI machine and, in the alternative, if setting up has become indispensable, the same may be done through the petitioner; it is, inter alia, claimed that no response to the notice has been given and, even if, the workload has increased, the petitioner is only entitled to set up and install another MRI machine in the same premises; it is claimed that 60% of the petitioner''s revenue is generated from the cases referred through the hospitals associated with Dr. S.N. Medical College, Jodhpur and in case the MRI machine is permitted to be set up ignoring the terms of the contract, the same would result in major setback and complete break down of petitioner''s business; reference has been made to a offer made to Soni Hospital Private Limited, Jaipur by SMS Hospital, Jaipur for setting up of another machine, which company was already operating a machine under agreement; it is with these averments that the prayers as indicated hereinbefore have been sought by the petitioner.

A reply to the writ petition has been filed by the respondent-State, who appeared as a caveator in the matter; the respondents have raised preliminary objections regarding maintainability of the writ petition; it is, inter alia, claimed that the petitioner has no locus standi to file the writ petition as the agreement was entered into by partners Shri Karni Singh and Dr. G.L. Purohit and the petition has been filed by Shri Anshul Siroya; the maintainability has been questioned on the ground that petitioner was seeking enforcement of conditions of agreement, for which, a remedy lies in filing civil suit.

On merits of the writ petition averments made in the writ petition have been denied; it is, inter alia, submitted that the petitioner has not renewed the bank guarantee; as required, the machine has not been made available for training and teaching purposes, fees are being charged at higher rates; a committee has been constituted on 01.04.2015 to look into the working of the petitioner; the patients have been kept waiting; along with reply, certain complaints have been filed as Annexure-R/1 and documents indicating the working/delays have also been placed on record; regarding the plea raised by the petitioner based on Clause 23 of the agreement providing for restriction on installation of any other MRI machine, it is contended that the Clause means that no other machine will be installed in MDM Hospital and the same does not puts restriction on installation of MRI machine in any other hospital; the machine has been purchased under the centralized scheme of the Government of India and as per Medical Council of India guidelines, in the department of Radio Diagnosis, MRI and CT Scan machines are required to be installed for MD, MS and DM students; the patients, who are admitted at MG Hospital are subjected to travel to another hospital, putting their life to risk; the new MRI machine has been installed and is functioning since 24.04.2015; the machine has been installed from funds of the Central Government and there is no requirement to call anyone to make investment; certain allegations regarding non-attending to a patient in time, resulting in his death have also been made in the reply; ultimately, it has been prayed that the writ petition deserves to be dismissed and in any case for the grievance raised by the petitioner, the proper forum is civil court.

A detailed rejoinder has been filed by the petitioner Firm, inter alia, disputing the preliminary objections raised by the respondents and joining issue on merits as well; it is, inter alia, submitted that the petitioner firm is registered with the Registrar of Firms and name of Shri Anshul Siroya stands entered in the list of partners as submitted to the Registrar of Firms; the change in status of the partners of the Firm has been duly informed to the respondents, which has never been objected to and a communication dated 05.02.2014 (Annexure-P/2) has been placed on record informing the respondents about change in the partners of Firm; the allegations regarding non-renewal of bank guarantee, non-availability of the machine for training and teaching purposes, charging the fee at higher rates, patients being kept waiting etc. have been vehemently denied; the plea regarding violation of express terms of the contract have been reiterates and it is prayed that the writ petition as filed may be accepted.

It is contended by learned counsel for the petitioner that opening para of the agreement pertaining to the parties clearly indicates that the term ''hospital'' in its sweep includes the MG Hospital also rather all the associated hospitals of Dr. S.N. Medical College are included; Clause 21 envisage that in case there is increase in work load, the respondents would have no objection for installing a stand by machine in the same premises; Clause 22 mandates that Doctors, Consultants of all the Government Hospitals and/or Colleges shall refer all their OPD and indoor patients exclusively to MRI Centre of petitioner located at MDM Hospital for the licence period and Clause 23 specifically provides for bar against installation of any other MRI machine in the hospital; it is further submitted that the petitioner has been working very efficiently and there has been no complaint since the petitioner started working in January, 2011; the material sought to be placed by the respondents is merely an after thought and has only been created to justify their illegal action; it was emphasized that the E-NIT was issued way back on 29.03.213, which is apparent from Annexure-4 and all the material sought to be placed pertains to March and April, 2015; the agreement under Clause 18 envisage review every quarter through the Superintendent, MG Hospital/MDM Hospital, which either never happened and in case it happened everything was found in order as neither any report in this regard has been produced nor anything was communicated to the petitioner; it is submitted that the parties have entered into contract based on the representation made by the respondents, which is reflected from the agreement Annexure-1 that no other MRI machine could be installed in the hospital during the continuance of the agreement and based on its projections etc., the petitioner has made huge investment after raising loans, the rates of the scans have been fixed under Clause-9 at Rs. 2,000/- per case, besides responsibility of the petitioner to do 20% of the number of cases free for the poor category patients; it is submitted that if another machine is permitted to be installed, the petitioner would suffer immensely and would be doomed; it was claimed that setting up of another MRI machine was in violation of principles of legitimate expectation and promissory estoppel, which cannot be permitted; regarding the maintainability of the writ petition, it was submitted that the writ petition questioning the arbitrary exercise of power by the instrumentality of the State is open to challenge by way of writ petition and the objection raised in this regard has no substance.

Reliance was placed on Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Others, AIR 1979 SC 621 : (1979) 118 ITR 326 : (1979) 2 SCC 409 : (1979) 2 SCR 641 : (1979) 44 STC 42 , Noble Resources Ltd. Vs. State of Orissa and Another, AIR 2007 SC 119 : (2006) 2 CTLJ 233 : (2006) 12 JT 185 : (2006) 9 SCALE 181 : (2006) 10 SCC 236 : (2006) 6 SCR 53 Supp , Harbanslal Sahnia and Another Vs. Indian Oil Corpn. Ltd. and Others, AIR 2003 SC 2120 : (2002) 10 JT 561 : (2003) 2 SCC 107 : (2003) AIRSCW 126 : (2003) 1 Supreme 446 , MRF Ltd., Kottayam Vs. Assistant Commissioner (Assessment) Sales Tax and Others, (2006) 12 JT 244 : (2006) 9 SCALE 420 : (2006) 8 SCC 702 : (2006) 6 SCR 417 Supp : (2006) 148 STC 225 : (2008) 12 STR 206 , State of Punjab Vs. Nestle India Ltd. and Another, (2004) 189 CTR 501 : (2004) 269 ITR 97 : (2004) 5 SCALE 529 : (2004) 6 SCC 465 : (2004) 3 SCR 135 Supp : (2004) 136 STC 35 , Erusian Equipment and Chemicals Ltd. Vs. State of West Bengal and Another, AIR 1975 SC 266 : (1975) 1 SCC 70 : (1975) 2 SCR 674 : (1974) 6 UJ 737 , Commissioner of Income Tax, West Bengal-III Vs. Pigot Champan and Company, AIR 1982 SC 1085 : (1982) 30 CTR 375 : (1982) 135 ITR 620 : (1982) 1 SCALE 371 : (1982) 2 SCC 330 : (1982) 14 UJ 359 and Sharad Vasant Kotak and Others Vs. Ramniklal Mohanlal Chawda and Another, AIR 1998 SC 877 : (1997) 10 JT 174 : (1997) 7 SCALE 640 : (1998) 2 SCC 171 : (1997) 6 SCR 543 Supp : (1998) AIRSCW 631 : (1998) 1 Supreme 35 .

In the alternative, it was vehemently submitted that even if the respondents intended to set up another MRI machine, it was incumbent on the State to call upon the petitioner to do the needful at the present premises and even now the respondents may be directed to enter into an agreement with the petitioner for operating the newly installed MRI machine.

Vehemently opposing the submissions made by learned counsel for the petitioner, learned counsel for the respondent-State submitted that the writ petition filed by the petitioner is not maintainable, inasmuch as, the same essentially seeks specific performance of the agreement dated 04.02.2009, regarding which, the remedy lies before the Civil Court; the entire action of the respondents in installing another MRI machine at MG Hospital is in public interest, which does not require any interference in extra ordinary jurisdiction of this Court; it was submitted that the petitioner through its partner Shri Anshul Siroya has no locus standi, inasmuch as, the agreement was entered into by Mr. Karni Singh and Dr. G.L. Purohit as partners of the firm.

With reference to the documents filed there with the reply, learned counsel fought to emphasize that the waiting list/period at the petitioner''s facility was huge, inasmuch as, the petitioner was giving time for MRI after a gap of two days and patients requiring immediate attention were suffering on account of such delays; further reference was made to the fact that patients were required to travel from one hospital to another, which hospital is at a considerable distance, for undertaking vital and advance diagnosis based on MRI; allegations were made regarding higher rates being charged by the petitioner with reference to the rates having been approved ''inclusive of contrast'', but the petitioner charging separately for contrast; the plea as raised in the reply regarding the two hospitals being separate and, therefore, the restriction as contained in Clause 23, having no application, was reiterated; it was submitted that in case the petitioner finds it unviable to continue with the agreement, it is for the petitioner to take a view regarding the agreement and his remedy in case the petitioner feels aggrieved by the alleged violation of the agreement lies in seeking compensation by way of civil suit and the petition seeking injunction in this regard is not maintainable; it was also contended that the present agreement cannot be put at par with other commercial contracts looking to the nature of the work i.e. installation of MRI machine and no interference is called for in the present matter; it was further submitted that in the interest of public, prayer as prayed for by the petitioner cannot be granted as the same would result in the public interest suffering.

I have considered the rival submissions made by learned counsel for the parties and have perused the material placed on record.

The present writ petition seeks enforcement of a negative covenant as contained in the agreement dated 04.02.2009; the remedy under the normal circumstances for enforcement of agreement lies before the civil court as the relationship is governed by the provisions of the Specific Relief Act, 1963; however, as the party accused of violating the agreement happens to be the State/instrumentality of the State, the petitioner has approached this Court under Article 226 of the Constitution of India.

It is well settled that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion as held by Hon''ble Supreme Court in the case of Harbanslal Sahnia (supra).

The preliminary objection regarding the locus standi raised by the respondents has no substance; the petitioner has placed on record document Annexure-P/1 indicating the registration of the firm with the Registrar of Firms and name of Shri Anshul Siroya, who has filed the present writ petition as partner of the firm finds mention as a partner in the list of partners.

The plea raised by the respondents that as the agreement was signed by Shri Karni Singh and Dr. G.L. Purohit, no one else has locus standi to file the petition has no basis in law; besides the fact that the change in constitution of firm has been specifically informed to the respondents vide Annexure-P/2, receipt of which has not been denied and the same has not been objected to by the respondents, the law in this regard is also well settled that dissolution and reconstitution of firm are two distinct legal concepts and reconstitution means the continuation of the partnership under altered circumstances, Hon''ble Supreme Court in the case of Sharad Vasant Kotak (supra) following the judgment in the case of M/s. Pigot Champan and Company (supra) laid down that induction of a new partner will amount to reconstitution and not dissolution of the firm. It was, inter alia, observed as under:-

"22. The contention of the learned counsel for the appellants that the induction of the new partner will result in dissolution of the firm is not also acceptable. Reliance placed on the language of Sections 31 and 32 of the Act to support the said contention will be of no avail if we look into Section 17 of the Act. Section 17(a) of the Act (extracted above) suggests only reconstitution of the firm where a change occurs in the constitution of the firm. Otherwise, the old firm remains the same."

Consequently, the preliminary objections raised by the respondents cannot be countenanced and the same are therefore rejected.

The provisions of the agreement, which require consideration, read as under:-

"The agreement made on Wednesday the day 4th of February, 2009, on behalf of the Governor of Rajasthan through the (1) Secretary, Rajasthan Medicare Relief Society, Mahatma Gandhi Hospital, Jodhpur and (2) Secretary, MDM Hospital Medicare Relief Society for installation of MRI machine at Mathura Das Mathur Hospital (hereinafter referred to as MDM), Jodhpur, (herein after referred to as the Licensor, College, Hospital, any Relief Society, department, administration, Secretary, etc.) of the one part."

"21. In case there is increase in work load which a single MRI machine is unable to carry out, then Licensor will have no objection for installing a standby machine in the same premises by the licensee so that work does not suffer. This MRI machine will only be used in case if there is breakdown of the main MRI machine or increase in the work load.

The Doctors, Consultants of all the Govt. hospitals and/or college of Licensor i.e. M.G.H., M.D.M., Kamla Nehru Chest Hospital, Ummed Hospital, Satellite Hospitals and Attached Teaching Hospitals, Jodhpur shall refer all their O.P.D. and Indoor Patients exclusively to MRI centre of Licensee located at MDM Hospital premises for the entire license period.

No any other MRI Machine will be installed in the hospital."

A bare look at the above Clauses indicates that the parties agreed that no any other MRI machine will be installed in the ''Hospital''; for ascertaining the meaning/extent of the term Hospital, a bare look at the opening paragraphs describing the parties, as quoted hereinbefore, reflects that the Secretary, Rajasthan Medicare Relief Society, MG Hospital, Jodhpur, Secretary, MDM Hospital Medicare Relief Society have been described as licensor/College/Hospital/Relief Society/Department/Administration/Secretary of the one part. It is well settled and is common knowledge that a group of parties and/or constituents of a party on one part are collectively described by a particular nomenclature for the purpose of obviating the requirement of repeating the said group all over again at several places in the agreement and the same essentially works as a definition clause.

From the above term as indicated in the agreement, it is apparent that the term hospital as indicated in Clause 23 of the agreement would in its sweep include the MG Hospital, Jodhpur also and the same cannot be confined to MDM Hospital only as submitted by learned counsel for the respondents. The fact that the term hospital is inclusive of all the constituents i.e. the attached group of hospitals of Dr. S.N. Medical College is apparent from Clause 22 of the agreement, which mandates the Doctors, Consultants of all the Government Hospitals and/or Colleges of licensor i.e. MG Hospital, MDM Hospital, K.N. Chest Hospital, Ummaid Hospital, Satellite Hospital and attached teaching Hospitals to refer all their OPD and indoor patients to MRI Centre of licencee located at MDM Hospital premises, as such, the plea sought to be raised by the respondents that Clause 23 of the agreement is not applicable only because the new MRI machine is being installed at MG Hospital apparently has no substance.

The allegations made by the respondents in the present matter regarding the alleged non-availability of the machine for training, fee being charged at higher rates and in violation of terms of contract regarding charge for contrast scans, appears to have been made only with a view to defend the present writ petition. There is substance in the submissions made by learned counsel for the petitioner that the periodical inspection envisaged under the agreement has not been undertaken and if undertaken no complaint for all these years have been made/petitioner has not been called upon to answer the same. As the allegations made by the respondents cannot by itself form the subject matter of enquiry in the present writ petition and as the respondents have failed to take any action, if there was any substance in the allegations made, the same does not require any consideration by this Court.

The issues sought to be raised by the petitioner in the present writ petition, need to be examined from essentially two aspects:

(i) the requirement of a new MRI machine at MG Hospital and (ii) the procedure adopted by the respondents in setting up the said MRI machine and/or violation of terms of the agreement in the process.

So far as the requirement of a new MRI machine at MG Hospital is concerned, the petitioner has vehemently claimed that MRI machine is being run by the petitioner for 24 hours a day, 365 days a year without any break. Availability of a diagnosis facility for 24 hours is different than having to work for 24 hours a day to cope with the rush of patients; from the material on record, it is apparent that the petitioner is operating the facility for 24 hours a day with a view to cope with the rush of patients.

The respondents have placed on record the receipts issued by the petitioner fixing the time of appointments for MRI at 01:45 AM, 00:00 AM, 11:00 AM, 04:00 AM, 04:30 AM etc. The Schedule Annexure-R/6 also indicates that the time gap between the time of reporting for MRI by the patients and the time of MRI done is at times two days, which period cannot be said to be normal and is unusual reflecting that the petitioner has not been able to cope with the rush of patients over a period of time.

A submission has been made by learned counsel for the petitioner that as the MRI Scan is only meant for diagnosis and is not a treatment in itself, the one off instance given by the respondents regarding the patient succumbing even before the MRI could be conducted, the blame cannot be put on the petitioner. It is true that the facility is for diagnosis and not a treatment/cure for the ailment, but then sooner the diagnosis takes places, the treatment can start and if the diagnosis itself takes two days only on account of the fact that petitioner''s hands are full, the same cannot be said to be a tolerable/reasonable state of affair so as to permit the same to continue.

The distance between the MDM Hospital and MG Hospital is about 3.5 kms. and the state of logistics i.e. the Ambulance and the supporting staff to move critically ill indoor patients in Government hospitals is too well known to make any comment.

In the circumstances, the petitioner apparently cannot insist that the patients should continue to avail of the available facility and the facilities should not be upgraded on account of stipulation in the agreement regarding non-setting up of a new MRI machine.

From the above, it is apparent that a new MRI machine at MG Hospital is required and necessary and the submissions made by the petitioner regarding the fact that it is operating 24 hours a day and that presently it is rendering services to 40 to 50 patients a day and has capacity of conducting about 80 to 100 MRI scans every day, by itself cannot be a reason to come to a conclusion that the MRI machine at MG Hospital is not required.

The fact that presently for rendering services to 40 to 50 patients per day the petitioner has to operate for 24 hours, if it was to render services at higher capacity, how the said scans would fit in a day of 24 hours is a million dollar question.

So far as the offer sought to be made by counsel for the petitioner in terms of Clause 21 of the agreement for setting up of a standby machine in the same premises is concerned, suffice it to observe that such an offer does not obviate the requirement of having an independent MRI machine at MG Hospital.

So far as the issue pertaining to procedure adopted by the respondents in setting up the MRI machine at MG Hospital and alleged violation of Clause 23 is concerned, it is well settled that the negative stipulation in an agreement should be construed strictly and only in the context in which the contract has been entered into.

An over all comprehensive look at the agreement indicates that the same is a specific model/type of contract, wherein, while the premises has been made available by the Hospital the machine has been set up and is being run and managed by the petitioner i.e. the machine in question has been procured by the petitioner itself alongwith setting up of the entire facility and managing the same.

However, in the present case the new MRI machine, as indicated by the respondents, has been purchased under the centralized scheme of the Government of India and, therefore, the entire context, in which, the machine is being installed and Clause 23 is sought to be enforced changes; the fact that the MRI machine was being/has been installed having been procured by the respondents themselves from the funds made available by the Central Government, the term/clause in the agreement, model of which is essentially based on a Public Private Partnership (PPP Model), would have no application to setting up of such a machine and the respondents were in no manner restrained from setting up of a machine under a different model on account of Clause 23 of the agreement.

In the present nature of litigation which essentially seeks specific performance of the agreement between the parties, the fundamental principles and the statutory stipulation under the Specific Relief Act, 1963 that the jurisdiction to grant specific relief is a discretionary and the Court is not bound to grant such relief merely because it is lawful to do so would govern the situation. In case, the petitioner was to succeed in the present petition, Rs. 5 crores machine which has already been installed and is functioning, would be required to be rendered idle and which cannot be to anybody''s advantage, rather the same would be to the huge disadvantage of the suffering patients. Consequently, the petitioner is not entitled to enforcement of the term of the agreement.

The issue cannot be examined only in the context of parties to the agreement i.e. the petitioner and the respondent Hospital, the welfare of the patients, who are the ultimate consumers and who are not parties before this Court has to be kept in view.

As already observed, the petitioner cannot insist that the patients should continue to be deprived of any up gradation in the facilities/additional facilities only on account of an agreement entered into between the petitioner and the respondents.

Besides the above, the admitted position on record is that a machine worth of Rs. 5 crores has already been installed and has started functioning, the question arises whether the public interest would be served in the said machine being permitted to work or in staying the working of the said machine.

The above aspect has been considered in the alternative i.e. even if the petitioner was to succeed in the present petition.

The judgments cited by learned counsel for the petitioner, regarding the principles of promissory estoppel and legitimate expectation in case of Government contracts and that State is bound to comply with the conditions of the agreement and the representations made by it at the time of entering into agreement, cannot be disputed.

Hon''ble Supreme Court in the case of Nestle India Ltd. (supra) while reiterating the principles laid down in several earlier judgments and after referring and analyzing the judgment in the leading case of Motilal Padampat Sugar Mills Co. Ltd. (supra) laid down as under:-

"28. This Court rejected all the three pleas of the Government. It reiterated the well-known preconditions for the operation of the doctrine:

(1) a clear and unequivocal promise knowing and intending that it would be acted upon by the promisee;

(2) such acting upon the promise by the promisee so that it would be inequitable to allow the promisor to go back on the promise.

As for its strengths it was said: that the doctrine was not limited only to cases where there was some contractual relationship or other pre-existing legal relationship between the parties. The principle would be applied even when the promise is intended to create legal relations or affect a legal relationship which would arise in future. The Government was held to be equally susceptible to the operation of the doctrine in whatever area or field the promise is made - contractual, administrative or statutory. To put it in the words of the Court:

"The law may, therefore, now be taken to be settled as a result of this decision, that where the Government makes a promise knowing or intending that it would be acted on by the promisee and, in fact, promisee, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promisee, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 299 of the Constitution.

[E]quity will, in a given case where justice and fairness demand, prevent a person from insisting on strict legal rights, even where they arise, not under any contract, but on his own title deeds or under statute.

Whatever be the nature of the function which the Government is discharging, the Government is subject to the rule of promissory estoppel and if the essential ingredients of this rule are satisfied, the Government can be compelled to carry out the promise made by it."

So much for the strengths. Then come the limitations. These are:

(1) Since the doctrine of promissory estoppel is an equitable doctrine, it must yield when the equity so requires. But it is only if the Court is satisfied, on proper and adequate material placed by the Government, that overriding public interest requires that the Government should not be held bound by the promise but should be free to act unfettered by it, that the Court would refuse to enforce the promise against the Government.

(2) No representation can be enforced which is prohibited by law in the sense that the person or authority making the representation or promise must have the power to carry out the promise. If the power is there, then subject to the preconditions and limitations noted earlier, it must be exercised. Thus, if the statute does not contain a provision enabling the Government to grant exemption, it would not be possible to enforce the representation against the Government, because the Government cannot be compelled to act contrary to the statue. But if the statute confers power on the Government to grant the exemption, the Government can legitimately be held bound by its promise to exempt the promisee from payment of sales tax."

The present matter as discussed hereinbefore even if Clause 23 of the agreement had any application to the present situation, the same would clearly fall within the limitations pertaining to principles of promissory estoppel on account of overriding public interest as noticed hereinbefore.

The allegations and the apprehensions expressed by the petitioner that setting up of the new MRI machine would lead to petitioner suffering financially and would doom, has presently no basis and even if the same had any substance, the petitioner is at best entitled to seek compensation after properly setting up a case and leading evidence on the said aspect before the civil court and based on assumptions, presently the issue cannot be examined.

So far as the plea raised by the petitioner seeking a direction to the respondents to execute the MOU/agreement with the petitioner for operating the MRI machine at the MG Hospital in the alternative is concerned, the petition for the said purpose seeking mandamus against the respondents is not maintainable. In case the State feels any requirement, it is for the State to stipulate the terms and conditions for operating the MRI machine and in case the petitioner fulfills those terms and conditions, the petitioner can always apply for the same, there is no right in the petitioner to seek a direction in this regard.

In view of the above discussion, there is no substance in the writ petition and the same is, therefore, dismissed. No order as to costs.