1. The facts leading to this petition under Arts. 226 and 227 of the Constitution of India praying for the issuance of a writ of mandamus directing the respondents to deliver possession of shop No. 13 forming part of a market known as the Sher-i-Punjab Market, Patiala to the petitioner, are either admitted on all hands or stand proved from the records maintained in the offices of the Chief Engineer and the Executive Engineer P. W. D. (B & R), Punjab which have been produced for the inspection of the Court and are these. In the year 1950 a bomb exploded in Oila Mubarik, Patiala (a property then owned by the Pepsu Government) and in consequence 13 persons including the petitioner, who were occupants of shops adjoining the Oila suffered heavy losses. In the same year Pepsu Government constructed 123 shops in the Old Jail premises at Patiala and gave them collectively the name of Sher-i-Punjab Market (hereinafter referred to as the Market). A Committee consisting of the Chief Secretary, the Chief Engineer, the Superintending Engineer and the Deputy Commissioner, Patiala, was constituted by the Pepsu Government in order to formulate a scheme for the allotment of the said shops. Such a scheme was prepared and was sanctioned by the Pepsu Government. Its mains features appear in a notification dated the 2nd August, 1950, issued by the Executive Engineer, P. W. D. (B & R), Patiala Division, and its relevant provisions may be reproduced here with advantage :--
'With a view to provide relief to the Shopkeepers affected by the explosion of Northern Wall of Fort Mubarik and also to the displaced persons who were permitted to build temporary stalls in front of the Chowk Qila Mubaraik and others, the Government undertook construction of 126 pacca shops in the old Jail premises, Patiala. These shops have been provided with 2 light points and one plug in each with water stand posts in the premises. These are now available for allotment in order of preference as follows :--
1. Shopkeepers affected by the explosion of Northern Wall of Fort Mubaraik.
2. Temporary stall-holders in Chowk Fort Mubarik.
3. Displaced persons occupying space in Chowk Fort Mubarik.
4. Other displaced persons.
5. Remaining applicants.
The monthly rent of shops is noted against each as under :--
46 shops Nos. 1 to 42, 43, 84, 85 @ Rs.15/- p.m. & 126 as indicated in the plan.
12 shops Nos. 52, 53, 63, 64, 74, 94, @ Rs. 14/- p.m. 95 (torn) 106, 116 & 117.
Other shops @ Rs.10/- P.M.
Yearly rent will be payable in advance before (torn) within one week of the allotment. The Government shall have the right to get any of the shops vacated at 3 months' notice. Similarly the shopkeeper can vacate the shop at 3 months advance notice.'
This scheme was implemented and allotment of shops was made in accordance therewith. Shop No. 13 (hereinafter referred to as the shop) forming part of the Market was alloted to the petitioner but before he could occupy it, it was illegally taken possession of by Ganga Singh, a brother of respondent No. 4. On being moved by the petitioner, the Deputy Commissioner, Patiala (respondent No. 1) initiated proceedings for ejecting Ganga Singh from the shop and putting the petitioner thereof. On the 1st of April, 1952, the Superintendent of Police, Patiala told the respondent No. 1 on phone that Ganga Singh would be made to vacate the shop that very day. However, Ganga Singh was actually ejected from the shop on 15 the May, 1952, in pursuance of a request made by the petitioner. Respondent No. 1 the directed the Superintendent of Police, Patiala to handover possession of the shop to the petitioner but when a Head Constable of Police reached the shop on 25th May, 1952, for that purpose, Ganga Singh refused to move his furniture therefrom and the fact was reported to the Superintendent of Police. On the 12th June, 1952, Ganga Singh made an application to respondent No. 1 stating that the petitioner was not willing to take possession of the shop and requesting that it be delivered to Ganga Singh himself instead. Respondent No. 1 directed the Superintendent of Police, Patiala to deliver the possession of the shop to Ganga Singh 'in case Sham Lal had not cared to take possession of the same.' Purporting to act under this direction the police delivered possession of the shop to Ganga Singh on the 17th June, 1952. Three days later the report of the Head Constable above mentioned reached respondent No. 1 who then formed the opinion that the report had been suppresses from him earlier and that the police were siding with Ganga Singh and were not implementing his (respondent No. 1's) order to deliver the possession of the shop to the petitioner. On 25th of June, 1952, therefore, respondent No. 1 again ordered :--
'Sham Lal is the allotee of shop No. 13. he must give his refusal to take the shop before it could be given to Ganga Singh. Ganga Singh cannot claim compensation for his furniture which he can remove of he so likes.'
This order was also not complied with and later on Sadhu Singh, the father of respondent No. 4 and Ganga Singh, took possession of the shop (presumably from Ganga Singh).
From 1952 to 1964 no further proceedings were taken for delivery of the possession of the shop to the petitioner. In the meantime territories administered by the Pepsu Government were merged with Punjab and the new State of Punjab came into being on the 1st of November, 1956. In the year 1964 the Punjab State Disposals Committee (hereinafter referred to as Committee) noted that no rents had been paid till then by any of the shopkeepers in the Market, that many of the allotees had transferred the shops allotted to them respectively to others not entitled to occupy them and that the interests of the Government had thus suffered. They were of the opinion that it would be too much of trouble and expense for the Government to eject unauthorised persons from the shops and that the interest of the Government would best be served if the shops were sold to 'the present occupants' (vide letter dated the 22nd of September, 1966, from the Chief Engineer, P. W. D. ( B & R ), appearing at pages 181 to 184 of the Chief Engineer's file). In the same year the petitioner again made attempts to get the possession of the shop. On the other hand respondent No. 4 also made an application that such possession be delivered to himself on the plea that the petitioner had refused to take possession of the shop earlier. The matter was referred by the Chief Engineer P. W. D. ( B & R ), Patiala on the 22nd of January, 1965, (pages 119 and 120 of the Chief Engineer's file) to the Government who rejected the application of respondent No. 4 and directed that the possession of the shop be delivered to the petitioner. Consequently the District Magistrate, Patiala issued an order on the 2nd December, 1965 that the possession of the shop be so delivered. This order also remained unexecuted and in 1967 it came to the notice of the respondent No. 1 that the Supreme Court had declared Section 5 of the Punjab Public Premises (Eviction and Rent Recovery) Act, 1959, under which proceedings for delivery of possession of the shop to the petitioner were being taken, ultra vires of the Punjab Legislature. Those proceedings were, therefore, dropped. Meanwhile a scheme prepared by the Public Works Department in pursuance of the proposal made by the Committee for the sale of the shops in the Market was accepted by the Government on the 6th of June, 1967 (Annexure 'R/A' and the relevant portions thereof appear below :
'2. Sanction of the Governor of Punjab is hereby accorded to the sale of 123 shops in Sher-i-Punjab Market, Patiala at the prices assessed by the Superintending Engineer, Patiala and subsequently recommended by the State Disposals Committee in its meetings held on 24-11-1962 and 7-6-1963, the details of which are indicated below, subject to the condition that the rate of interest chargeable will be 6 per cent, and in case of default of any instalment, a penal interest at double the rates will be chargeable. 1st row of 41 shops Rs. 1700/- 2nd row of 41 shops Rs. 1458/- 3rd row of 41 shops Rs. 1401/-
'3. The above sale would be subject to the following terms and conditions :
(a) The shops will be sold to the present occupants at the above price plus interest thereon as specified above and to be calculated from the date of allotment of shops to them. i. e., from date of allotment of shops after their construction, which will be treated as rent of shops as no rent had been recovered since the date of allotment after construction of shops.'
In pursuance of this scheme, shop No. 13 was transferred to respondent No. 4 in spite of protests from the petitioner.
2. The case of the petitioner is that the Pepsu Government had allotted the shop to him by way of compensation for the loss suffered by him as a result of the bomo explosion, that by reason of allottment he had gievn up his claim to such compensation to his own detriment and that the Punjab Government being the successor of the erstwhile Pepsu Government was bound to honour the committment and to transfer the possession and title in the shop as envisaged in the scheme of allotment prepared in the year 1950 and the scheme of sale sanctioned on the 6th June, 1967. On his behalf reliance has been placed on Union of India v. Anglo Afghan Agencies, AIR 1968 SC 718, for the proposition that Government must be made to honour its commitment to a party who has altered his position to his detriment in pursuance of the commitment. His learned counsel has also urged that the words 'the present occupants' occuring in the scheme of sale must be construed to mean the original allotees or their assignees and not trespassers.
3. The petitioner's case is stoutly resisted by all the respondents, the points urged on whose behalf may be stated thus :-
(1) The allotment made in favour of the petitioner and other persons who had suffered as a result of the bomb explosion was one in the nature of ex-gratia action taken by the Pepsu Government suo motu on compassionate grounds and not at all in order to 'compensate' such persons.
(2) Such action was executive in nature and was not taken in pursuance of any statutory duty so that it gave rise to no rights in the petitioner such as he could enforce through the law Courts.
(3) The allotment of the shop to the petitioner was terminable on three months' notice and created no vested right in favour of the petitioner. The Government were always at liberty to sell the shop to any person they liked.
(4) The petitioner kept quiet throughout the period of 12 years from 1952 to 1964 and must, therefore, be held to have waived his right, if any, to the allotment.
(5) A writ of mandamus cannot issue except to enforce a statutory suty. The action taken by the Government being entirely administrative or executive in character, the relief asked for by the petitioner cannot be granted to him.
4. The facts of the case as detailed above make me strongly feel that the Government had a clear moral duty to put the petitioner in possession of the shop and also to transfer it to him, rather than to a trespasser, in pursuance of the scheme of the sale sanctioned on the 6th of June, 1967. That duty they have failed to carry out and have, on the other hand, been a party to perpetuating a trespass on their own property which they were unable to vacate because of the complicity therein of their own police officials whose services respondent No. 4 was able to manoeuvre to his own advantage. This does disclose a sorry state of affairs but then the case of the petitioner cannot, in my opinion be held to go any further. Although the petitioner admittedly suffered loss as a result of the bomb explosion and it was for that reason that the Pepsu Government decided to include him amongst those whom they sought to give relief in the shape of allotment of shops in the Market, there is nothing on the record to indicate that he was either entitled to or actually put forward any claim for compensation for loss suffered by him and it cannot, therefore, be said that the allotment was made in settlement of such a claim and must, on the contrary, be held to have been made by the Government exgratia and merely on compassionate grounds. Nor is there any material (even in the form of an averment in the petition) available on the record such as may lead to the inference that the petitioner did anything to alter his position to his own disadvantage on the basis of the allotment. The ratio in AIR 1968 SC 718 (supra) does not in the circumstance lend any assistance to him. In that case, the facts were these. On the 10th of October, 1962, the Textile Commissioner published a scheme called the Export Promotion Scheme providing incentives to exporters of woolen goods. The scheme was extended by a 'Trade Notice' dated 1st January, 1963 to exporters of woolen goods to Afganisthan. Messers. Indo Afghan Agencies, a firm dealing in woollen goods at Amrirtsar, exported to Afganisthan in September, 1963, woollen goods of the f.o.b. value of Rs.5,03,471.73 np. The Deputy Director in the office of the Textile Commissioner, Bombay issued to that firm an Import Entitlement Certificate for Rs.1,99,459 only instead of one for the full f.o.b. value above-mentioned which the firm was entitled unless it was found to have 'overinvoiced' the goods exported by it. A petition under Art. 226 of the Constitution moved by the firm before the High Court of Punjab succeeded and the Joint Controller of Exports and Imports, Bombay was directed to issue a license permitting the firm to import foods worth the full f.o.b. value above-mentioned. Dismissing an appeal by the Union of India agaisnt the decision of the Punjab High Court, their Lordships observed :
We are unable to accede to the contention that the executive necessity releases the Government from honouring its solemn promises relying on which citizens have acted to their detriment. Under our constitutional set up, no person may be deprived of his right or liberty except in due course of and by authority of law: if a member of the executive seeks to deprive a citizen of his right or liberty otherwise than in exercise of power deprived from the law--common or statute--the Courts will be competent to and indeed would be bound to, protect the rights of the aggrieved citizen. * * * *
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We do not find it necessary to embark upon an enquiry whether the provision which authorises the issue of import entitlement certificate for the full f. o. b. value of the goods exported is legislative in character. Granting that it is executive in character, this Court has held that the Courts have the power in appropriate cases to compel performance of the obligations imposed by the Schemes upon the departmental authorities.
'The question whether the Import Trade Policy is legislative in character has not been expressly dealt with in any decision of this Court. It appears to have been assumed in certain cases, that it is executive in character, but even so it has been held that when it is declared under an export policy that a citizen exporting goods shall be entitled to certain import facilities, in appropriate cases the Courts have the powers to direct the concerned authority to make the facility available to the citizen who has acted to his prejudice acting upon the representation in the policy and has been denied that facility. * * *
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Therefore even assuming that the provisions relating to the issue of Trade Notices offering inducement to the prospective exporters are in character executive the Union Government and its officers are, on the authorities of this Court not entitled at their mere whim to ignore the promises made by the Government. We cannot therefore accept the plea that the Textile Commissioner is the sole judge of the quantum of import license to be granted to an exporter and that the Courts are powerless to grant relief, if the promised import license is not given to an exporter who has acted to his prejudice relying upon the representation. To concede to the Departmental authorities that power would be to strike at the very root of the rule of law. * * * * * * * * *
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But the respondents are not seeking to enforce any contractual right they are seeking to enforce compliance with the obligation which is laid upon the Textile Commissioner by the terms of the Scheme, and we are of the view that even if the Scheme is executive in character, the respondents who were aggrieved because of the failure to carry out the terms of the Scheme were entitled to seek resort to the Court and claim that the obligation imposed upon the Textile Commissioner by the Schemes be ordered to be carried out. * * * * * * * * * * * * * * * * * * *
Even though the case does not fall within the terms of Section 115 of the Evidence Act, it is still open to a party who has acted on a representation made by the Government to claim that the Government shall be bound to carry out the promise made by it, even though the promise is not recorded in the form of a formal contract as required by the Constitution' * * * * * * * * * * * * *
Under our jurisprudence the Government is not exempt from liability to carry out the representation made by it as to its future conduct and it cannot on some undefined and undisclosed ground of necessity or expediency fail to carry out the promise solemnly made by it, nor claim to be the judge of its own obligation to the citizen on an ex-parte appraisement of the circumstances in which the obligation has arisen.'
It will be seen that over and over again their Lordships emphasised that a party who was out to enforce a promise made by a Government while acting in discharge of its exclusive functions must show that it had acted to its detriment in pursuance of the Government's promise. In my opinion, their Lordships left no room for doubting the proposition that if such a party had not thus acted, it could not claim any relief if the Government went back on its promise. The case of the petitioner, as pointed out above, being one falling within the proposition just above enunciated. He can not be granted the relief prayed for by him and this in spite of my view that the words 'present occupants' occurring in the scheme of sale sanctioned on the 6th June, 1967 must be construed as meaning 'original allottees or their assignees', as is clearly made out from the language employed in Cl.(a)of S.3 of the scheme which bears repetition :--
'3. * * * *
(a) The shops will be sold to the present occupant at the above price plus interest thereon as specified above and to be calculated from the date of allotment of shops to them, i. e., first date of allotment of shops after their construction, which will be treated as rent of shops as no rent had been recovered since the date of allotment after construction of shops.'
The words 'to them' clearly mean 'to the present occupants' and if such occupants were not the original allottees or their assignees, there could be no question of any interest being calculated 'from the date of allotment of shops to them'. No allotment of the shop was ever made in favour of respondent No. 4 or in fact any person except the petitioner. Respondent No. 4, therefore, was neither an allottee nor an assignee from an allottee. His case is thus not covered by the scheme of sale. As it is, the Government must be held to have transferred the shop to him in derogation of the scheme but then the petitioner has not changed his position to his own determent by reason of anything occuring in the scheme and he cannot, therefore, gain any advantage from the Government not sticking to the scheme and transferring the shop to respondent No. 4 in contravention thereof.
The above discussion disposes of the contentions raised on behalf of the petitioner and points (1) and (2) urged on behalf of the respondents, the other points raised by them do not in circumstances arise for determination.
5. For the reasons stated, the petition must fail and is hereby dismissed but with no order as to costs.
6. Petition dismissed.