Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10
PETITIONER:
BIHAR EASTERN GANGETIC FISHERMENCO-OPERATIVE SOCIETY LIMITED
Vs.
RESPONDENT:
SIPAHI SINGH & OTHERS
DATE OF JUDGMENT01/09/1977
BENCH:
SINGH, JASWANT
BENCH:
SINGH, JASWANT
GOSWAMI, P.K.
KAILASAM, P.S.
CITATION:
1977 AIR 2149 1978 SCR (1) 375
1977 SCC (4) 145
CITATOR INFO :
RF 1979 SC 621 (30)
R 1980 SC1109 (4)
RF 1980 SC1285 (33)
R 1988 SC2143 (14)
ACT:
Civil Procedure Code (Act V of 1908), Order XLI Rules 4 and
33-Right to obtain reversal of whole decree where it
proceeds on ground common to all, applies even at appellate
stage.
Constitution of India 1950, Article 299, Settlement of the
Jalkar incomplete, not made and executed in the manner
prescribed by Article 299 of the Constilion, whether valid.
Transfer of Property Act (Act IV) 1882, sections 54 and 107,
General Clauses, Act, v. 3(26)-Registration Act 1908,
section 17(1)(d)-Contract of Sale/ Lease of fshing rights to
be valid, being a "profit a preadre", must be by means of a
registered instrument.
Constitution of India, Article 226-When can malidamus issue.
Estoppel-Promissory estoppel-There cannot he any estoppel
against the Government.
HEADNOTE:
The fishery rights in the Gangapath Islampur Jalkar which
settled with the appellant for the year 1974 to 1975 (i.e.
1-7-1974 to 30--6-1975) at the Jamma of Rs. 1,50,000/- was,
however, made in favour of one Sipahi Singh (Respondent No.
1) for the period commencing from July 1, 1975 to June 30,
1976, as a result of the public auction at which respondent
No. 1 offered the highest bid of Rs. 1,65,000/-. On a
representation made by respondent No. 1, on 1-2-1976, for a
remission in the amount at which the settlement had been
made in his favour, on the ground that he had suffered a
heavy loss during the year 1975-76, as a result of the
unlawful activities of the members of the appellant society,
or in the alternative for continuance of fishery rights for
the years 1976-77 and 1977-78 the Government made the
deposit by respondent No. 1 of one year’s settlement fee
at Rs. 1,65,000/- a sine qua non to the issue of the order
of settlement in his favour. Respondent No. 1 made this
deposit informed the Government. However, taking a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10
favorable presentations made by the appellant society on
February 18, 9, 1976 to its Revenue Minister and the Chief
Minister Government of Bihar changed its mind and settled
the fishery rights with the appellant, vide its letter No.
10/S.-4032/76-1976, date June 29, 1976, on condition of the
deposit by the latter of Rs. 1,65,000/- plus the earlier
arrears of Rs. 58,868/-, in three equal installments; the
first instalment to be deposited before taking the
settlement and within a week from that date. It was also
made clear that in case the appellant failed to make the
deposit aforesaid the settlement be issued by highest bid.
On June 30, 1976, when respondent No. 1 went to obtain the
"dakhil parwana", he was informed of this subsequent
decision of the State Government. Respondent No. 1
challenged the said orders by filing a writ petition under
Art 226 of the Constitution. Though the High Court of Bihar
found that there was no binding or enforceable contract
between respondent No. 1 and the State Government, it
allowed the writ petition relying on the doctrine of
promissory estoppel.
Allowing the appeal by special leave, the Court,
HELD : (1) It is no doubt true that the year 1976-77 has run
out and the State has not preferred any appeal against the
adverse decision of the High Court but since it has been
implemented as a respondent to the present appeal and in
actively supporting the appellant who was indisputably in
possession and
376
enjoyment of the Jalkar at the commencement of the
Proceedings under Article 226 of the Constitution and lost
the same as a result of the judgment and order of the High
Court and the appellant could not effectively pursue the
application for the lease for the year 1977-78 and the
reversal of the judgment and order of the High Court which
proceeds on grounds common to the appellant and the
respondents 2 to 4 can be made in favour of respondent No. 1
to meet the ends of justice under Order XLI Rules 4 and 33
of the Code of Civil Procedure and the State Government
might have been prevented from settling the Jalkar in favour
of the appellant because of the mandatory injunction granted
by the High Court. The appellant, is vitally interested in
the matter and is entitled to maintain and continue to
prosecute the appeal and to showthat the writ of mandamus
issued by the High Court is unsustainable in law.[380 E-G]
(2) The provisions, of Article 299 of the Constitution
which are mandatory in character require that a contract
made in the exercise of the executive power of the Union or
of a State must satisfy there conditions namely, (i) it must
be expressly made by the President or by the Governor of the
State as the case may be; (ii) it must be executed on behalf
of the President or the Governor as the case may be; and
(iii) its execution must be by such person and in such
manner as the President or Governor may direct or otherwise.
Failure to comply with these conditions nullifies the
contract and renders it void and unenforceable. [380 H, 381
A, D-E]
In the instant case, the settlement of the Jalkar with
respondent No. 1 was not made and executed in the manner
prescribed by Article 299 of the Constitution. Accordingly,
it could not be said to be valid and binding on State.
Respondent No. 1 could not base his claim thereon.
The State of Bihar v. M/s. Karam Chand Thapar & Brothers
Ltd. [1962] 1 S.C.R. 827; Seth Bikhraj Jaipuria v. Union of
India [1962] 2 S.C.R. 880’ State of West Bengal v. M/s. B.
K. Mondal & Sons [1962] Supp. 1 S.C.R. 876 and Mulamchand
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10
v. State of Madhya Pradesh [1968] 3 S.C.R. 214 applied.
(3)The right to catch and carry away the fish being a
’profit a prendre’ and as such an immovable property within
the meaning of the Transfer of Property Act read in the
light of s. 3(26) of General Clauses Act, its grant has to
be by means of a registered instrument if it is a tangible
immovable property exceeding in value of Rs. 100/- under s.
54 of Transfer of property Act and if it is intangible
whatever its value. The transaction of sale of the right to
catch and carry away the fish if not effected by means of a
registered instrument would pass no title or interest. User
of the term ’lease’ would not make any difference because a
lease of fishery which is immovable property, as defined in
s. 2(6) of the Registration Act, if it is, for any term
exceeding one year or reserves a yearly rent has also to be
registered as required by s. 17(1)(d) of the Registration
Act 1908 and section 104 of the Transfer of Property Act.
In the instant case the transfer of the ’profit a prendre’
in favour of respondent No. 1 was admittedly for two years
reserving a yearly rent and was not evidenced by a
registered instrument. He had therefore no right, title or
interest which could be enforced by him. [381 E-H, 382 B]
Ananda Behera & Anr. v. The State of Orissa & Anr. [1955] 2
SCR 919 followed.
(4)There cannot be any estoppel against the Government in
exercise of its sovereign legislative and executive
functions.
The instant case is not one where respondent No. 1 could
invoke the doctrine of promissory estoppel particularly in
view of the fact that be neither deposited Rs. 3,713/-
required for execution of the lease agreement nor was any
parwana issued to him. [382 F, G]
Excise Commissioner, U.P., Allahabad etc. etc. v. Ram Kumar
etc. etc. A.I.R. 1976 S.C. 2237, applied.
377
Union of India & Ors. v. M/s. Afghan Agencies Ltd. [1968] 2
S.C.R. 366, distinguished.
(5)The chief function of a writ is to compel the
performance of public duties prescribed by statute and to
keep subordinate tribunals and officers exercising public
function within the limit of their jurisdiction. In order
that mandamus may issue to compel the parties to do
something, it must be shown that there is a statute which
imposes a legal duty and the aggrieved party has a. legal
right under the statute to enforce its performance.
In the instant case respondent No. 1 was not entitled to
apply for grant of a writ of mandamus under Article 226 of
the. Constitution and the High court was not competent to
issue the same when it has not been shown that ’there is any
statute or rule having the force of law which casts a duty
on the respondents 2 to 4 which they fail to perform. [383
C-F]
Lekhraj Satramdas, Lalvani v. Dy. Custodian-cum-Managing
Officer & Ors. [1966] 1 S.C.R. 120; Dr. Rai Sivendra Bahadur
v. The Governing Body of the Nalanda College [1962] Supp. 2
S.C.R. 144 and Dr. Umakant Saran v, State of Bihar & Ors.
A.I.R. 1973 S.C. 964, referred to.
(6)It is within the competence of the Government to give
preference to a Fishermen Co-operative Society and to settle
the Jalkar according to the revised policy and procedure
formulated by it in exercise of its absolute authority and
incorporated in its circular dated April 18, 1974.
Respondent No. 1 is entitled to refund on the basis of s. 70
of the Contract Act, proportionate grant of the Jamma
deposited by him for the year 1977-78 for the period
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10
commencing from May 1, 1977 to 30th August 1977. [384 A-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1478 of
1976.
Appeal by Special Leave from the Judgment and Order dated
20-8-76 of the Patna High Court in Civil Writ Jurisdiction
Case No’ 1463/76.
D.V. Patel, Miss B. Ram Rakhiani and S. K. Gambhir for
the Appellant.
Lal Narain Sinha and Yogeshwar Prasad, Rani Arora and Merra
Bail, for Respondent No. 1.
D. Goburdhan for Respondent Nos. 2 and 3 and 4.
The Judgment of the Court was delivered by
JASWANT SINGH, J.-This appeal by special leave is directed
against the judgment and order dated August 20, 1976, of the
High Court of Judicature at Patna in Civil Writ Judicial
Case No. 1463 of 1976 (filed by respondent No. 1)
restraining the appellant and respondents 2 to 4 herein from
acting on the basis of letter No. 10-S4032/76-1976 R dated
June 29, 1976 addressed by the Department of Revenue and
Land Reforms, Government of Bihar, to the Deputy
Commissioner, Santhal Pargana, Dumka (which formed Annexure-
4 to the aforesaid writ petition) and directing respondent
No. 2 to execute the lease of the fishery rights in question
in favour of respondent No. 1 and to, put him in possession
thereof, if not already done.
The facts and circumstances giving rise to this appeal are :
The appellant which is a co-operative society commenced
taking settlement ,of Gangapath Islampur Jalkar, bearing
Tauzi No. 614 (hereinafter
378
referred to as the ’Jalkar’) immediately after its
establishment and. registration in 1950 (A. D.) The fishery
rights in the Jalkar which were settled with the appellant
for the year 1974-75 as theretofore was to run from July 1,
1974, to the end of June, 1975 at the Jamma. of Rs.
1,50,000/-. At the end of the said year, it was discovered
that the appellant had defaulted in payment of the Jamma to
the extent of Rs. 66,869/-. The settlement of fishery
rights in the Jalkar for the period commencing from July 1,
1975 to June 30,1976 was made in favour of respondent No. 1
by respondent No. 2 through its Revenue Department as a
result of the public auction at which the former offered the
highest bid of Rs. 1,65,000/-. In February, 1976,
respondent No. 1 made a representation to the Revenue
Department of the Government of Bihar praying for a
remission of Rs. 75,000/- in the amount at which the
settlement had been made in his favour on the ground that he
had suffered a heavy loss during the aforesaid period of
settlement as a result of the unlawful activities of the
members of the appellant society. In the alternative, he
prayed that in case the State Government was not in a
position to grant the remission, the settlement of fishery
rights of the Jalkar be continued with him for a further
period of three years at the same amount in order to enable
him to recoup the aforesaid loss suffered by him. After
some inquiry and consideration of the matter, the Revenue
Department of the Government of Bihar ordered that the.
settlement of the Jalkar should continue with respondent No.
1 for the years 1976-77 and 1977-78 at Rs. 1,65,000/- per
year. Their Government, however, made the deposit of the
settlement fee of Rs. 1,65,000/- by respondent No. 1 a sine
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10
qua non to the issue of the order of settlement. An
intimation of this order was given by the Government to its
Deputy Commissioner, Santhal Pargana, Dumka, vide its latter
No. 10-S-4032/76R dated April 30, 1976, forming Annexure-1
to the writ petition. A copy of this communication was also
sent to respondent No. 1 with the direction that he should
deposit Rs. 1,65,000/- before the issue of the settlement
order for the aforesaid two years. In compliance with this
order, respondent No. 1 deposited a sum of Rs. 1,65,000/- on
May 3, 1976, vide challan No. 18 (Bank) dated May 3, 1976
and by his letter of the even date, he requested the Sub-
Divisional Officer, Sahibganj, to issue the Patta of
settlement of the Jalkar for the years 1976-77 and 1977-78
in his favour. Respondent No. 1 also communicated the
fact of the deposit by himof Rs. 1,65,000/- to the
Secretary to the Government of Bihar,Revenue Department, by
telegram dated May 5, 1976. How-ever, taking a favourable
view of the representations made by the appellant on
February 18, 1976 and March 9, 1976 to its Revenue Minister
and the Chief Minister respectively, the Government of Bihar
changed its mind and informed the Deputy Commissioner of
Santhal Paragana, Dumka vide its letter No. 10/S-4032/76-
1976-R dated June 29, 1976 that it had "taken the decision
that settlement of the aforesaid Jalkar with the Society
(i.e. the appellant) be done for the year 1976-77 on the
additional conditions (besides those laid down by the
prescribed rules and conditions) that it would make the de-
posit of all earlier arrears of Rs. 58,868/- along with the
amount of settlement of Rs. 1,65,000/- for this year (i.e
1976-77) in three equal instalments, the first instalment to
be deposited before taking
379
the settlement" and within a week from that date. It was
made clear in the concluding part of the communication that
in case the appellant failed to makethe deposit as
aforesaid, ’the settlement be issued by highest bid.’On
June 30, 1976, when respondent No. 1 went to
obtain the’dakhil parwana’, he is stated to have been
informed of this subsequent decision of the, State
Government. Averring that he had been put to a considerable
financial loss as a result of the aforesaid subsequent order
of the Government settling the fishery rights in Jalkar in
favour of the appellant, respondent No. 1 filed a petition
under Article 226 of the Constitution in the High Court of
Judicature at Patna on July 2, 1976 praying that the
aforesaid order settling the fishery rights of the Jalkar
with the appellant be quashed by a writ of certiorari and
the, State Government be directed by a writ of mandamus to
execute the lease in his favour for the years 1976-77 and
1977-78 and not to disturb his possession over the fishery
right in question during the currency of the term of the
lease, The respondent also prayed for such other orders, as
the Court might think fit and proper.
The writ petition was contested by the appellant as also by
respondents Nos. 2 to 4 herein. In the counter affidavit
jointly filed by them in opposition to the, petition,
respondents Nos. 2 to 4 averred inter alia that there was no
completed contract and hence no formal agreement was
executed between the State. and respondent No. 1 and no
’parwana’ was issued in favour of the latter, that the State
had full right and authority to revoke its decision be-fore
execution of the agreement and that in view of the well
established principles, ’the settlement of the Jalkar had to
be, given to the appellant if it was willing to take the
lease’. The respondents also denied their liability: for
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10
the expenses alleged to have been incurred by respondent No.
1 in connection with the preparation for the lease ordered
in his favour by the Government vide the aforesaid Annexure-
1 to the writ petition. They, however, admitted that the
appellant indulged in unlawful activities for four days in
1975-76 which had caused a meager loss to respondent No. 1.
In the counter affidavit filed by it. the appellant while
denying that it was a defaulter, averred that its petition
for remission was pending before the Remission Committee
appointed by the State; that the Assistant Registrar and the
Registrar of the Cooperative Societies had recommended the
settlement of fishery rights of the Jalkar in its favour and
on representations made by it to the Revenue Minister and
the Chief Minister, the Government of Bihar had, in
conformity with mandatory orders and instructions, issued an
order of settlement in its favour on June 28, 1976; that
pursuant to that order, it made the necessary deposit by
10.35 A.M. on July 1, 1976 and that respondent No. 1 had no
right to challenge the settlement of the fishery rights of
the Jalkar in its favour.
The High Court while holding that there was no binding or
enforceable contract between respondent No. 1 and the State
Government allowed the writ petition relying on the doctrine
of promissory estopped. Aggrieved by this judgment and
order, the appellant has as already stated, come up in
appeal to this Court.
380
Appearing on behalf, of the appellant, Mr. Patel has urged
the following points :
1. That since there was no completed,
binding and enforceable contract between the
State of Bihar and respondent No. 1 as
contemplated by Article 299 of the
Constitution, the aforesaid writ petition
filed by respondent No. 1 was not
maintainable.
2. That to a case like the present one, the
doctrine of promissory estopped had no
application and the High Court has erred in
relying upon the same.
3. That in any case, since there was no
breach of any statutory duty in the present
case, a writ of mandamus could not have been
issued by the High Court.
Mr. Lalnaryan Sinha has, on the other hand, submitted that
in the facts and circumstances of the case, the High Court
was justified in applying the principle of promissory
estoppel and there is no warrant for interfering with the
judgment and order passed by the High Court.
We shall deal seriatim with the aforesaid three contentions
raised on behalf on the appellant. But before attempting to
do, that, we would like to dispose of the, preliminary
objection raised on behalf of respondent No. 1 to the effect
that as the period for which the impugned order dated June
29, 1976 settling the Jalkar with the appellant was issued
has expired and the State has not chosen to prefer any
appeal against the aforesaid. judgment and order of the High
Court the appellant has no manner of right or locus standi
to challenge the continuance of settlement with respondent
No. 1 for the year 1977-78 and to continue to prosecute the
present appeal. It is no doubt true that the year 1976-77
has run out and the State has not preferred any appeal
against the adverse decision of the High Court but since it
has been impleaded as a respondent to the present appeal and
is actively supporting the appellant who was indisputably in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10
possession and enjoyment of the Jalkar at the commencement
of the proceedings under Article 226 of the Constitution and
lost the same as a result of the judgment and order of the
High Court and the appellant could not effectively pursue
the application for the lease for the year 1977-78 and the
reversal of the judgment and order of the High Court which
proceeds on grounds common to the appellant and respondents
2 to 4 can be made in favour of respondent No. 2 to meet the
ends of justice under Order 41 Rules 4 and 33 of the Code of
Civil Procedure and the State Government might have been
prevented from settling the Jalkar in, favour of, the
appellant because of the mandatory injunction granted by the
High Court, the appellant is, in our judgment, vitally
interested in the matter and is entitled to maintain and
continue to prosecution the appeal and to show that the writ
of mandamus issued by the High Court is unsustainable in
law. We accordingly overrule the preliminary objection and
proceed to consider the aforesaid contentions raised on
behalf of the appellant.
Re : Contention No. 1 :-It is now well settled that the
provisions of Article 299 of the Constitution which are
mandatory in character require that a contract made in the
exercise of the executive power of
381
the Union or of a State must satisfy three conditions viz.
(i) it must be expressed tobe made by the President or by
the Governor of the State, as thecase may be;
(ii) it must be executed on behalf of the President orthe
Governor, as the case may be and (iii) its execution must be
bysuch person and in such manner as the President or
Governor may direct or authorise. Failure to comply with
these conditions nullifies the contract and renders it void
and unenforceable. (See decisions of this Court in The State
of Bihar O. M/s Karam Chand Thapar & Brothers Ltd.(1) Seth
Bikhraj Jaipuria v. Union of India ( 2 ) and State of West
Bengal v. M/s. B. K. Mondal & Sons. (3)
It will also be useful to refer to the Judgment of this
Court in Mulamchand v. State of Madhya Pradesh ( 4 ) where
while reiterating the principles laid down in the aforesaid
decisions, it was observed
"There is no question of estoppel or
ratification in a case where there is
contravention of the provisions of Article
299(1) of the Constitution. The reason is
that the provisions of section 175(3) of the
Government of India Act and the corresponding
provisions of Art. 299(1) of the Constitution
have not been enacted for the sake of mere
form but they have been enacted for
safeguarding the Government, against
unauthorised contracts. The provisions are
embodied in s. 175(3) of the Government of
India Act and Art. 299(1) of the Constitution
on the ground of public policy--on the ground
of protection of general public .... and these
formalities cannot be waived or dispensed
with."
In the instant case, it is obvious that the settlement of
the Jalkar with respondent No. 1 was not made and executed
in the manner prescribed by Article 299 of the Constitution.
Accordingly, it could not be said to be valid and binding on
the State of Bihar and respondent No. 1 could not base his
claim thereon.
That apart, there is an additional reason for holding that
the settlement of Jalkar with ’respondent No. 1 was not
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10
valid and enforceable. The right to catch and carry away
the fish being a ’profit a prendre’ i.e. a profit or benefit
arising out of the land, it has to be regarded as immovable
property within the meaning of the Transfer of Property Act,
read in the light of s. 3(26) of the General Clauses Act.
If a ’profit a prendre’ is tangible immovable property, its
sale has to be by means of a registered instrument in case
its value exceeds Rs. 100/- because, of section 54 of the
Transfer of Property Act. If it is intangible, its sale is
required to be effected by, a registered instrument whatever
its value. Therefore, in either of the two situations, the
grant of the ’profit a prendre’ has to be by means of a
registered instrument. Accordingly, the transaction of sale
of the right to catch and carry away the fish if not
effected by means of a registered instrument, would pass no
title or interest. (See Ananda Behera & Anr. v. The State of
Orissa &
(1) [1962] 1 S.C.R. 827.
(2) [1962] 2 S.C.R. 880.
(3) [1962] Supp. 1 S.C.R. 876.
(4) [1968] 3S.C.R.214.
382
Anr.(1) Even if the settlement of Jalkar with respondent No.
1 is regarded as lease as described by him in Annexure-2 to
the writ petition, it would not make any difference because
a lease of fishery which is immovable property as defined by
section 2(6) of the Registration Act if it is for any term
exceeding one year or reserves a yearly rent has also to be
registered as required by section 17(1) (d) of the Indian
Registration Act, 1908 and section 107 of the Transfer of
Property Act. As in the instant case, the transfer of the
’profit a prendre’ in favourof respondent No. 1 was
admittedly for two years reserving a yearlyrent and was
not evidenced by a registered instrument.he had no
right, title or interest which could be enforced by him.
Manifestly therefore, the writ petition was misconceived and
ought to have been dismissed.
Re : Contention No. 2 : It is also not a case where
respondent No. 1 could invoke the doctrine of promissory
estoppel particularly in view of the fact that he neither
deposited Rs. 3,713/- (Rupees three thousand, seven hundred
and thirteen only) required for execution of the lease,
agreement nor was any ’Parwana’ issued to him and the High
Court rejected his plea that after the receipt of the
Government order, he invested large amounts of money in
purchasing boats etc. and had to enter into contracts with
large number of employees whose services were needed for the
Jalkar. It would be appropriate to refer to the following
observations of the High Court in this respect :-
"The statement referred to above is such too
vague and general. No details or particulars
have been given, nor any document annexed to
the original writ application, or the
rejoinder aforesaid in support of these
averments. therefore, do not accept the
correctness of the statements. However, it
was very unlikely that the petitioner ’who had
already a subsisting lease would not be having
enough or sufficient materials and it was
after the communication regarding lease for
the period 1976 to 1978 that the petitioner
started purchasing boats etc. The vague and
general statements that have been made in
paragraph 17 of the original writ application
do not appear to me to be acceptable."
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10
The doctrine of promissory estoppel could also not be,
pressed into service in the present case, as it is well
settled that there cannot be any estoppel against the,
Government in exercise of its sovereign legislative and
executive functions. (See Excise Commissioner, U.P.,
Allahabad etc. etc. v. Ram Kumar etc. etc.(2)
The decision of this Court in Union of India & Drs. v. M/s
Indo-- Afghan Agencies Ltd.(3) on which strong reliance is
placed by counsel for respondent No. 1 is clearly
distinguishable. In that case, unlike the present one, the
respondents were not seeking to enforce any contractual
right. They were merely seeking to enforce compli-
(1) [1955] 2 S.C.R. 919.
(2) A.I.R. 1976 S.C. 2237.
(3) [1968] 2 S.C.R. 366.
383
ance with the obligation which was laid upon the Textile
Commissioner by the terms of the Export Promotion Scheme
providing for grant ,(by way of incentives to exporters of
woollen textiles and goods) of Entitlement Certificate to
import raw materials of a total amount ,equal to 100% of the
F.O.B. value of their exports. Their claim was founded upon
the equity which arose in their favour as a result of the
representation made on behalf of the Government in the
aforesaid Scheme, the exports of woollen goods made by them
Lo Afghanistan acting upon the representation and
curtailment of the import Entitlement by the Textile.
Commissioner without notice to them.
Re : Contention No. 3 :-This contention is also well founded
and must prevail. There, is abundant authority in favour of
the proposition that a writ of mandamus can be granted only
in a case where there is a statutory duty imposed upon the
officer concerned and there is a failure on the part of that
officer to discharge the statutory obligation. The chief
function of a writ is to compel performance of public duties
prescribed by statute and to keep subordinate tribunals and
officers exercising public functions within the limit of
their jurisdiction. It follows, therefore, that in order
that mandamus may issue to compel the authorities to do
something, it must be shown that there is a statute which
imposes a legal duty and the aggrieved party has a legal
right under the statute to enforce its performance. (See
Lekhraj Satramdas, Lalvani v. Deputy Custodian-cum-managing
Officer & Ors.(1) Dr. Rai Shivendra Bahadur v. The Governing
Body of the Nalanda College(2) and Dr. Umakant Saran v.
State of Bihar & Ors.(3) In the instant case, it has not
been shown by respondent No. 1 that there is any statute or
rule having the force of law which casts a duty on
respondents 2 to 4 which they failed to perform. All that
is sought to be enforced is an obligation flowing from a
contract which, as already indicated, is also, not binding
and enforceable, Accordingly, we are clearly of the opinion
that respondent No. 1 was not ,entitled to apply for grant
of a writ of mandamus under Article 226 of the Constitution
and the High Court was not competent to issue the same.
This brings us to the consideration of the last question of
the relief which can be granted to the appellant. The
settlement of Jalkar with respondent No. 1 undoubtedly did
not create any legal right in his favour but as the year
1976-77 has already run out, the appeal in so far as that
year is concerned has become infructuous but in so far as
the appeal relates to the year 1977-78, we are of the
opinion that as respondent No. 1 is not validly exploiting
the Jalkar and the application by the appellant for
settlement thereof with it is pending with the authorities
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10
and according to the revised policy and procedure formulated
by it in exercise of its absolute authority and incorporated
in its Revenue and Land Reforms Department’s circular letter
No. S. 8 Serial
(1) [1966] 1 S.C.R. 120.
(2) [1962] Supp. 2 S.C.R. 144.
(3) A.I.R.1973 S.C. 964.
384
6-0-4663R dated April 18, 1974, addressed to all the
Collectors of the, State, it is within the competence of the
Government to give preference to a Fishermen Co-operative
Society and to settle the Jalkar with the. appellant for the
remainder of the year 1977-78 at 90% of the highest bid
amount i.e. 10% less of the highest auction amount but it
may not be possible for it to, do so in.... face of the
impediment created by the mandamus issued by the High Court,
we would allow the appeal’: in so far as the current year is
concerned and leave it open to the Government to grant the
fishery rights to the appellant in conformity with the
aforesaid policy and procedure in case the latter fulfills
the conditions laid down therein. In the event of the
Government settling the Jalkar with the appellant or any
other Fisherman Society in accordance with the policy and
procedure laid down in the aforesaid circular letter, it
shall, on the basis of section 70 of the Contract Act refund
to respondent No. 1 proportionate amount of the Jamma
deposited by him for the year 1977-78 after going into the
accounts which he was bound to, maintain under order passed
by this Court on May 6, 1977 for the period commencing from
May 1, 1977 to August 30’, 1977.
In the circumstances of the case, there will be no order as
to costs..
S.R.
Appeal., allowed..
385