ivil Appeal No 1348 of 1990
From the Judgment and Order dated 237
1985 of the Bombay High Court in WP No 3144 of 1981
Tunara JA Karia and MN Shroff for the Appellant
Ashok H Desai Solicitor General UJ Makhija BS Bisaria
Mrs AK Verma and Vivek Dholakia for the Respond ents
VN Ganpule VN Patil and AS Bhasime for the State of Maharashtra
The Judgment of the Court was delivered by K RAMASWAMY J
1
The respondent is a statutory body corporate initially constituted under the Bombay Port Trust Act 1879 Bombay Act 6 of 1879 for short State Act 
Under Sec
26 thereof the Board has power to acquire and hold movable and immovable property and also has power to lease to sell or otherwise convey movable and immovable property which may have become vested in or acquired by them
The respondent has appointed AJ Mescarnas 832 Assistant Estate Manager as their power of attorney holder to lease out its properties from time to time or terminate the leases and to lay action for ejectment etc
The re spondent owns the Building bearing Old RR No 941 known as Frere Land Estate in which room No 2 admeasuring 2827 sq
meters was leased out to Vasantkumar Radhakisan Vora for short Vasantkumar 
The appellants are his legal repre sentatives
He was served with a notice under Sec 106 read with section 111h of the terminating the tenancy in terms of the covenants of lease and was asked to deliver possession of the demised property giving one month s time from 22nd January 1975
It was served on Vasantkumar on January 28 1975
The notice of termination thereby became effective from 28th February 1975
In the meanwhile Major Port Trust Act 1963 Act No 38 of 1963 for short the Central Act was made applicable to the Bombay Port Trust by operation of section 133 2A with effect from February 1 1975
After the expiry of one month ejectment application was filed under section 41 of the Bombay Act 15 of 1882 as amended under 1963 Maharashtra Amendment Act against Vasantkumar and another for delivery of possession
After 1976 Amendment Act 19 of 1976 came into force suits were laid against three other tenants
It was pleaded by the respondent that it is a successor in interest of the Board under the State Act and were entitled to eject the tenants and to the possession of the demised portions
The plea of Vasantkumar in his written statement elaborated by the learned counsel is that the suit is not maintainable
Since the State Act ceased to be operative with effect from Febru ary 1 1975 the quit notice issued under Section 106 read with Section 111h of became ineffective and without determining the tenancy afresh the suit was not validly laid
It was also pleaded that the respondent had promised that in deposit of certain amount which the tenant did Vasantkumar would be given on lease of a portion in the reconstructed building
Thereby the re spondent is estopped by promissory estoppel to have the tenant ejected
It may be mentioned at this juncture that one suit was dismissed on the ground that the tenancy was not duly determined as per law
Other suits were decreed
No appellate forum has been prescribed under Amendment Act of 1963 but a substantive suit on original side provided was available
By Maharashtra Amendment Act 19 of 1976 to the principal Act such a right to appeal was incorporated
Vasantkumar filed writ petition in the High Court under Articles 226 and 227 and others filed regular appeals to a Bench of two Judges of the Small Cause Court and are stated to be pending
833 2
In the writ petition the petitioner challenged the vires of 1963 Amendment Provisions and also 1976 Amendment Provisions to the 
When it came up for heating before Masodkar J he referred it to a Division Bench
The Division Bench by its judgment dated January 1718 1982 up held the constitutional validity of those sections and remitted to the learned Single Judge to dispose of the writ petition on merits
The learned single Judge considered and negatived two points namely validity of the notice terminating the tenancy promissory estoppel and dismissed the writ petition
Vasantkumar had leave of this Court under article 136
The primary contention of Mr Turana learned counsel for the appellant is that quit notice issued under Sec 106 read with Sec
IIIh of the TP Act is invalid
By issue of quit notice no right had accrued to the respondent
Termination of tenancy became operative only on expiry of one month given thereunder ie February 28 1975 by which date the State Act became inoperative as from February 1 1975 the Central Act came into force
The respondent under the Central Act acquired by statutory operation the immov able property including the demised one in Frere Land Estate and thereby became a new landlord
Termination of tenancy is an act inter vivos by operation of Sec 106 read with Sec
IIIh of TP Act
Under Sec
109 thereof the respondent not being a living person is not entitled to the benefit of the quit notice as its operation is not saved by Sec 2d and Sec
5 thereof
The suit thereby is not maintainable admittedly no quit notice determining the tenancy was issued after February 1 1975
The edifice of the argument was built up on shifting sand and when it was subjected to close scrutiny it crumbled down traceless
Let us first deal with the arguments on the foot of the provisions of TP Act
Section 2d of the provides saving of the previous operation of law
It states that   nothing herein contained shall be deemed to affect save as provided by Sec
57 and Chapter IV of this Act any transfer by operation of law or by or in execution of a decree or order of a court of competent jurisdiction
Section 106 empowers the landlord to terminate the contract of lease of immovable property if it is for agricultural or manufacturing purpose by giving six months notice and ter minable on the part of either lessor or lessee by giving fifteen days  notice expiring with the end of the month of the tenancy
Section illh provides that on the expira tion of a notice to determine the lease or to quit or of intention 834 to quit the property leased duly given by one party to the other
Section 109 is Rights of lessor s transferee If the lessor transfers the property leased or any part thereof or any part of his interest therein the transfer ee in the absence of a contract to the contrary shall possess all the rights and if the lessee so elects sub ject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it but the lessor shall not by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease unless the lessee elects to treat the transferee as the person liable to Provisos are not necessary hence omitted
Reading of these fascicule of provisions clearly demonstrates that a lessee of immovable property from month to month is terminable by giving fifteen days  notice or as per the terms of the contract of the lessee
In this case the contract provides to give one month s notice
On expiry of one month from the date of receipt of the notice the lease shall stand terminated
The lessor s right on transfer of the immovable property including the lease hold rights created on the property sold the transferee in the absence of contract to the contrary shall possess all the rights and if the lessee so elects be subject to all the liabili ties of the lessor as to the property or part thereof so long as he is owner of it
But by mere transfer the lessor shall not cease to be subject to any liabilities imposed upon him by contract of lease unless the lessee elects to treat the transferee as the person liable to him
Undoubtedly by issuance of notice to quit automati cally the right created thereunder namely cessation of the lease does not become effective till the period prescribed in the notice or in the statute ie Sec
106 expires
On expiry thereof the lease becomes inoperative and the lessor acquires right to have the tenant ejected
When he fails to deliver vacant possession the lessor would be entitled to have the tenant ejected and taken possession in due process of law
The successor in interest whether acquires these rights and the rights acquired by lessor would enure for his benefit is the crucial question
In Halsbury s Laws of England 4th Edition Vol 27 paragraph 193 discussed the right accrued to the transferee of the benefit of 835 the notice to quit issued by the predecessor in title thus The notice when once given enures for the benefit of the successors in title of the landlord or tenant giving it
 Hill and Redman in Law of Landlord and Tenant 17th Edition Vol
I at page 488 paragraph 405 have stated to the similar fact thus The notice when once given enures for the benefit of the successor in title of the landlord or tenant giving it
 In Mulla s commentary on the  6th Edition at page 676 it is also stated thus Notice enures for the benefit of the successor in title of the lessor or lessee giving it In Chitaley s Transfer Property Act 4th Edn 1969 Vol
III Note 35 it is stated thus Where the lessor gives notice to quit and then assigns his interest to another the assignee can take advantage of the notice In NPK Raman Menon vs Collector of Malabar AIR 1924 Madras 908 a Division Bench of the Madras High Court held that English cases recognise that the person who is the landlord and entitled to possession on the date of the notice to quit is the proper person to give the notice and that an assignee within the currency of that notice can take advan tage of the notice sent by his assignor and rely upon it when he brings a suit for recovering possession
No doubt Mr Tunara placed strong reliance on the decision of Trimbak Damodhar Raipurkar vs Assaram Hiraman Patil Ors 1962 Suppl
1 SCR 700
The facts therein are that in 1943 a lease on agricultural land for five years was created Before the expiry thereof Bombay Tenancy Act 1939 was made applicable to the area where the land was situated and under Sec
231b of that Act the period of lease was statutorily extended to ten years During the subsistence of the contractual tenancy it was statutorily extended and the Bombay of 1948 came into force
In March 1952 notice was given to the tenant that the tenancy expired on March 31 1953 and called upon the tenant to deliver possession
In the meanwhile the Bombay Act 33 of 1952 came into force
Its effect was that the lease automatically stood extended for ten years from time to time unless terminated by giving one year s notice averting that the land was required bona fide by the landlord for personal cultivation and that income would be the main source of income of the landlord
It was contended that since 1952 Amending Act was not retrospec tive the technical requirement of notice to quit do not apply
The question was whether the landlord was entitled to eject the tenant without complying with the statutory re quirement
In that context it was held by the Constitution Bench that by operation of the statutory provisions the period of lease of 10 years from time to time was automati cally extended unless the tenancy was validly terminated by giving a notice of one year or surrender was made by the tenant as specified in the statute
The ratio therein has little application to the facts of this case
In Hitkarini Sabha vs The Corporation of City of Jabalpur  Anr the lease was granted by the Administrator without authority under the Statute
Therefore the lease was held to be void
The notice as required under TP Act was held to be mandatory but was not done
Therefore the lease was subsisting and thereby as his land was acquired the tenant was entitled to compensation pro rata under Section 11 of the Land Acquisition Act
We are at a loss to understand how the ratio thereunder will be of any assistance to the appellant
In Lower vs Sorreli  1963 1 Queen s Bench Division 959 the question therein was whether the notice to quit was a valid notice
Admittedly second notice was given before the expiry of the first notice
It was held that when such notice were issued withdrawing the first notice by issuance of the second notice a new tenancy has been creat ed for the tenant to remain in possession until the expiry of the later notice on September 29 1961 to which the tenancy sections 21 and 231 of the Agricultural Holdings Act 1948 would apply
Accordingly it was held by the Court of Appeal that there was no valid notice to quit
The ratio therein also is of no avail to the appellant
No doubt in Gurumurthappa vs Chickmunisamappa AIR a Division Bench of Mysore High Court held that the successor in interest is not entitled to avail the notice to quit given by the original landlord
In the light of the above discussion this view is not good law
It is no doubt true that per se sec
109 of TP Act does not apply to the facts of this case
It contemplates transfer of lessor s right inter vivos
But when right title and interest in immovable property 837 stand transferred by operation of law the spirit behind Sec
109 per force would apply and successor in interest would be entitled to the rights of the predecessor
This is what the learned single Judge of the High Court in the impugned judgment has held and we approve of the view as correct
We accordingly hold that the notice terminating the tenancy of Vasantkumar would enure to the benefit of the respondent and it could be availed of by the respondent to lay the suit for  ejectment
The matter could also be gleaned through the statuto ry operation as well
By operation of Sec 26 of the State Act the Board of Trustees acquired and held the demised property which includes lease hold interest therein
Section 291 of the Central Act interposed and from February 1 1975 the appointed date in relation to Bombay Port all the movable and immovable property assets and funds of the predecessor Board shall vest in the Board ie the respond ent
By operation of Clause b thereof all debts obliga tions and liabilities incurred all contracts entered into and all matters and things engaged to be done by with or for the Central Govt or as the case may be the other authority ie predecessor Board under State Act immedi ately before such day for or in connection with the pur poses of the port shah be deemed to have been incurred entered into and engaged to be done by with or for the Board
 It further postulates that all rates fees rents and other sums of money due to the Central Govt or as the case may be the other authority ie the predecessor Board in relation to the port immediately before such day shall be deemed to be due to the Board ie the respondent
Other clauses are not necessary
Hence omitted
Thereby by operation of Sec
291b the immovable properties ie demised rooms and all contracts in relation thereto includ ing the lease and the right to ejectment pursuant to quit notice stood transferred to the respondent
Sub section 2A of Sec
133 Repeal  of the states that on the application of the Central Act to the Port of Bombay except the provisions thereof relating to municipal assessment of the properties of the port of Bombay and matters connected therewith shall cease to have force in relation to that port
But subclause c of sub section 2D of Sec 133 provides that notwith standing anything contained in sub section 2A 2B and 2C anything done or any action taken or purported to have been done or taken including   notice   issued  shall in so far as it is not inconsistent with the provisions of this Act be deemed to have been done or taken on the corresponding provisions of this Act
By 838 operation of Sec
291a  bread with Sec
1332A the quit notice concerning the vested immovable property ie the demised rooms vested in the respondent shall be deemed to have been done or taken under Sec
291 and Sec
1332AC of the Central Act
There is no inconsistency between the Central and the State Acts in this regard
Section 6 of the postulates the effect of repeal thus Where this Act or any Central Act or regulation made after the commencement of this Act repeals any enactment hitherto made or hereafter to be made then unless a dif ferent intention appears the repeal shall not b affect the previous operation of any enactment so re pealed or anything duly done or suffered thereunder  or c affect any right privilege obligation or liability acquired accrued or incurred under any enactment so re pealed or   any such investigation legal proceedings or remedy may be instituted continued or enforced   as if the repealing Act or Regulation had not been passed Section 171 provides under In any Central Act or Regulation made after the commence ment of this Act it shall be sufficient for the purpose of indicating the application of a law to every person or number of persons for the time being executing the functions of an office to mention the official title of the officer at present executing the functions of an office or that of the officer by whom the functions are commonly executed
 Section 17 of the substitutes the func tionaries under the Central Act to those of the function aries under the State Act
Section 6 gives effect to the previous operation of anything done or subsists the right acquired or privilege accrued under the Repealed Act and the legal proceedings of remedy may be instituted continued or enforced as if the repealing Act had not been passed
There fore the operation efficacy and effectiveness of the quit notice issued by the power of attorney Agent of the respond ent ie the Asstt
Estate Manager has been acquired by the respondent Board
The rights and 839 remedy accrued to the respondent under the State Act namely termination of tenancy by issue of quit notice under Sec 106 and 111h of TP Act and on expiry of thirty days ie on February 28 1975 the respondent Board became entitled to institute the proceedings in the suits to have the tenants ejected under Sec
41 of the Provincial Small Cause Courts Act
The contention of Mr Tunara that the Central Act and the would apply only to the acts done under the Central Act or State Act by exercise of the statutory power which alone have been validated and they have no application to bilateral acts under Central Act and the notice under Sec 106 of TP Act is not the one either under the Central or the State Act and that the notice issued is not saved is devoid of force
The Board of Trus tees under the State Act have merely changed their hats and stand transposed to be functionaries under the Central Act
The functionaries under both the Acts are the same
The notice was issued by the Asstt
Estate Manager by virtue of his official function as power of attorney agent on behalf of the respondent
The Board of Trustees have the right to terminate the lease under Sec
26 of the State Act and those rights stood transferred and vested under Sec
291 of the Central Act
Therefore the termination of tenancy and laying the action for ejectment are integrally connected with their official capacity
There is a reasonable connec tion between the impugned acts and official duty
Thereby they are the acts done under the Central Act
In Commission er for the Court of Calcutta vs Abdul Rahim Osman  Co Sec
142 of the Calcutta Port Act came up for interpreta tion
Thereunder it was contended that short delivery of the goods was an omission and not an act done under the Act and though the suit was laid beyond three months it was not barred by limitation
Section 142 enjoins that no suit shall be brought in for anything done or purported to have been done beyond three months
It was held that after the expiry of three months from the day on which the cause of action had arisen for short delivery which was done or purported to have been done under the Act the suit was barred by limitation
It was further held that in order to apply any bar under Sec
142 it was first to determine whether the act which is complained of in the suit can be said to have been within the scope of the official duty of the person or persons who are sought to be made liable
This question can be answered in the affirmative where there is a reasonable connection between the act and the discharge of the official duty
Once the scope of official duty is determined Sec
142 will protect the defendant not only from a claim based on breach of the  duty but also from a claim based upon an omission to perform such 840 duty
The protection cannot be held to be confined to acts done in the exercise of a statutory power but also extends to acts done within the scope of an official duty
This view was upheld in Trustees of Port of Bombay vs The Premier Automobiles Ltd  Anr  where there was short delivery of one bundle out of 153 bundles consigned from Japan and omitted to be delivered and it was held to constitute an act done within the ambit of Sec 87 of the Bombay Port Trust Act 1879 and the bar of limitation pre scribed thereunder would apply
Thus we have no hesitation to hold that the notice under Sec 106 and Sec
111h of the is an act done or purported to have been done in the official capacity as Power of Attorney holderAsstt
Estate Manager on behalf of the respondent Board of Trustees the right to lay the suit on expiry of one month s period prescribed in the notice namely on or after February 28 1975 had accrued to the respondent
It is an act done or purported to have been done under the Central Act in exercise of the official function
The right to lay the suit on determination of the tenancy by notice dated January 20 1975 under the State Act is a transfer of inter est by operation of Sec
291 of the Central Act to the respondent under Sec
109 of the 
Thereby the quit notice is valid
The suit laid pursuant thereto is valid and legal
Accordingly order of ejectment passed by the Small Cause Court is perfectly legal and unassailable
The next contention of Mr Tunara is that the re spondents are estopped from ejecting the appellant and other tenants who are similarly situated on the principle of promissory estoppel
His contention is rounded upon the fact that the Estate Manager of the respondent in his letter dated April 3 1972 directed the tenant to deposit Rs 11000 and odd for grant of tenancy after reconstruction of the flats therein
The tenants placing reliance thereon have deposited the amount demanded from them and acted upon the promise to their detriment
The respondent now shall be declared to be estopped from ejecting them from the demised respective portions leased out to them
The learned Solici tor General contended that the Estate Manager has no author ity to give a promise
Even assuming that he has such a power it is conditional one namely approval by the Board
The Board in its meeting resolved to reject the claim and on reconstruction decided to allot to its own employees out of administrative necessity
Therefore the promissory estoppel cannot be applied
The principle of promissory estoppel is that where one party has by his word or conduct made to the other a clear and unequivocal promise or representation which is intended to create legal relations or affect a 841 legal relationship to arise in the future knowing or
intending that it would be acted upon by the other party to whom the promise or representation is made and it is in fact so acted upon the other party the promise or representation would be binding on the party making it and he would not be entitled to go back upon it if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties
The doctrine of promissory estoppel is now well established one in the field of admin istrative law
This principle has been evolved by equity to avoid injustice
It is neither in the realm of contract nor in the realm of estoppel
Its object is to interpose equity shorn of its form to mitigate the rigour of strict law
In Union of India vs Indo Afgan Agencies Shah J as he then was speaking for the Division Bench of this Court while upholding the application of promissory estoppel to execu tive acts of the State negated the plea of executive neces sity thus We are unable to accede to the contention that the execu tive necessity releases the Government from honouring its solemn promises relying on which citizens have acted to theft detriment
Under our constitutional set up no person may be deprived of his right or liberty except in due course of and by if a member of the Executive seeks to deprive a citizen of his right or liberty otherwise than in exercise of power derived from the law common or statute the Courts will be competent to and indeed would be bound to protect the rights of the aggrieved citizens
 It was further held in its summing up thus 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 not 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 In Century Spinning and Manufacturing Co Ltd vs Ulhasnagar Municipal Council 1970 3 SCR 854 Shah J again extended this doctrine of promissory estoppel against public authori ties thus This court refused to make distinction between a private 842 individual and a public body so far as the doctrine of promissory estoppel is concerned In Motilal Padampat Sugar Mills vs State of Uttar Pra desh  Bhagwati J as he then was applied the doctrine of promissory estoppel to the executive action of the State Government and also denied to the State of the doctrine of executive necessity as a valid defence
It was held that in are public governed by rule of law no one high or low is above the law
Everyone is subject to the law as fully and completely as any other and the Government is no exception
The Govt
cannot claim immunity from the doctrine of promissory estopped
Equity will in a given case where justice and fairness demands present a person from exercis ing on strict legal rights even where they arise not in contract but on his own title deed or in statute
It  is not necesary that there should be some pre existing contrac tual relationship between the parties
The parties need not be in any count of legal relationship before the transaction from which the promissory estoppel takes its origin
The doctrine would apply even where there is no pre existing legal relation ship  between the parties but the promise is intended to create legal relations or effect a legal rela tionship which will arise in nature
It was further held that it is indeed pride of constitutional democracy and rule of law that the Government stands on the same footing as a private individual so far as the obligation of the law is concerned 
The former is equally bound as the latter There fore the Government cannot claim any immunity from the doctrine of promissory estoppel and it cannot say that it is under no obligation to act in a manner ie fair and just or that it is not bound by the consi derations of honesty and good faith
In fact the Government should be held to have a high standard of rectitude while dealing with its citizens
Since the doctrine Of promissory estoppel is an equitable doctrine it must yield where the equity so re quires
If it can be shown by the Govt
that having regard to the facts as they have transpired it would be inequita ble to hold the Govt
or public authority to the promise or representation made by it the Court would not raise an equity in favour of the promise and enforce the promise against the Government
The doctrine of promissory estoppel would be displaced in such a case
because on the facts equity would  not require that the Government should be held bound by the promise made by it
But the Govt must be able to show that in view of the fact as have been tran spired public interest
would not be prejudiced
Where the Govtis required to carry out the promise the Court would have to balance the public interest in the Government s carrying out the promise made to the citizens which helps citizens to act upon and alter his position 843 and the public interest likely to suffer if the promises were required to be carried out by the Government and deter mine which way the equity lies
It would not be enough just to say that the public interest  require that the Govt
should not be compelled to carry out the promise or that the public interest would suffer if the Govt
were required to honour it
In order to resist its liability the Govt would disclose to the Court the various events insisting its claim to be exempt from liability and it would be for the Court to decide whether those events are such as to render it equita ble and to enforce the liability against the Govt
There fore we are holding that the doctrine of promissory estop pel would equally apply to a private individual as well as a public body like a Municipal Council
It was held that it cannot be applied in the teeth of an obligation or liability imposed by law
It cannot be invoked to compell the Govt
to do an act prohibited by law
There may be no promissory estoppel against exercise of legislative functions
Legisla ture can never be precluded from exercise of its legislative functions by resorting to doctrine of promissory estoppel
The plea of executive necessity though was rejected its rigour was mellowed down to the above extent indicated above
The doctrine of promissory estoppel though doubted in Jeer Ram vs State of Haryana  was af firmed and reiterated by a Bench of three Judges in Union of India vs Godfrey Philips India Ltd 1985 Supp 3 SCR 123 at 144 Bhagwati the Chief Justice while reiterating the law laid down in Motilal P  Sugar Mills  case supra made it clear thus there can be no promissory estoppel against the legislature in the exercise of its legislative functions nor can the Govt
or public authority be debarred by promissory estoppel from enforcing a statutory prohibition
It is equally true that promissory estoppel Cannot be used to compel the Gov ernment or a public authority to carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of the Government or of the public authority to make
We may also point out that the doctrine of promissory estoppel being an equitable doctrine it must yield when the equity so requires if it can be shown by the Government or public authority that having regard to the facts as they have transpired it would be inequitable to hold the Government or public authority to the promise or representation made by it the Court would not raise an equity in favour of the person to whom the promise or representation is made and enforce the promise or representation against the Government or public authority
 844 Doctrine of Promissory Estoppel was reiterated by another Bench of three Judges in State of Bihar vs Usha Martin Industries Ltd 1987 65 STC 430 and Asstt
Commissioner of Commercial Taxes Dharwar Dharmendra Trading Co etc
  12
It is equally settled law that the promissory estop pel cannot be used to compel the Government or a public authority to carry out a representation or promise which is prohibited by law or which was devoid of the authority or power of the officer of the Government or the public author ity to make
We may also point out that the doctrine of promissory estoppel being an equitable doctrine it must yield place to the equity if larger public interest so requires and if it can be shown by the Government or public authority for having regard to the facts as they have transpired that it would be inequitable to hold the Govern ment or public authority to the promise or representation made by it
The Court on satisfaction would not in those circumstances raise the equity in favour of the persons to whom a promise or representation is made and enforce the promise or representation against Government or the public authority
Equally Promissory estoppel should not be extend ed though it may be rounded on an express or implied prom ise stammed from the conduct or representation by an officer of the State or public authority when it was obtained play fraud on the constitution and the enforcement would defeat or tend to defeat the constitutional goals
For instance a fight to reservation either under article 154 or 164 in favour of the Scheduled Castes Scheduled Tribes or backward classes was made with a view to ameliorate their status socially economically and educationally so as to assimilate those sections into the main stream of the society
The persons who do not belong to those classes but produce a certificate to mask their social status and secure an ap pointment to an office or post under the State or public employment or admission into an educational institution maintained by the State or receiving aid from the State on later investigation though belated was found that the certificate produced was false and the candidate was dis missed from the post or office or debarred or sent out from the institution or from the balance course of the study the plea of promissory estoppel would always be found favour with the courts and being easily extended in favour of the candidate or party that played fraud on the Constitution
It would amount not only putting a premium on the fraud on the Constitution but also a denial to a reserved candidate and the general candidate as well
Therefore the plea of prom issory estoppel should not be extended to such areas
845 Though Executive necessity is not always a good defence this doctrine cannot be extended to legislative acts or to acts prohibited by the statute
When it seeks to relieve itself from its application the Government or the public authority are bound to place before the Court the material the circumstances or grounds on which it seeks to resile from the promise made or obliga tion undertaken by insistence of enforcing the promise how the public interest would be jeopardised as against the private interest
It is well settled legal proposition that the private interest would always yield place to the public interest
The question therefore is whether promise in fact was made by the Estate Manager on behalf of the re spondent and whether the Estate Manager is competent to make such a promise and whether it binds the respondent
The letter dated April 3 1972 written by the Estate Manager is a conditional one namely that on fulfilling certain condi tions indicated in that letter he would make recommendation to the Board for grant of lease condition precedent being that the tenant would deposit the required sum of about Rs 11000 and odd with the respondent
Undoubtedly the tenants completed that part of the obligation
Thereafter admittedly it was placed before the Board who by resolution dated September 10 1974 which is at page 228 to 237 of the paper book considered it but was rejected on the ground that after reconstruction the building would be required to its staff
Therefore the decision has stemmed from its execu tive necessity but that ground by itself would not be sufficient unless it is shown to the satisfaction of the Court that as against the interest of the private tenants the interest of its employees is of such as absolute impor tance that without allotment of the quarters to the staff the work of the Port Trust cannot be carried out
No such material has been placed before us
But the crucial circum stance would be whether an unequivocal promise in fact was made and the Estate Manager was competent to make promise
In Howell vs Falmouth Boat Construction Co Ltd the facts are that ship repairers in a naval vessel carried out certain work in contravention of para 1 of the Restriction of Repairs of Ships Order 1940 the Admiralty acting under regulation 55 of the Defence Gener al Regulations 1939 directed that repairs or alteration of ships would not be carried out except under the authority of a licence granted by the Admiralty
The defence was that work was carried out with the oral permission of the licenc ing authority officer of the Admiralty
In the Court of Appeal Lord Denning laid the rule of promissory estoppel that whenever Government Officers in the deal 846 ings with the subject take on themselves to assume authori ty in a matter with which he is concerned the subject is under entitlement to rely on their having the authority which they assume
He does not know and cannot be expected to know the limits of their authority and he ought not to suffer if they exceed it
On further appeal the House of Lords while reversing the view Lord Simonds stated thus I know of no such principle in our law nor was any authori ty for it cited
The illegality of an act is the same wheth er or not the actor has been misled by an assumption of authority on the part of a Government officer however high or law in the hierarchy
I do not doubt that in criminal proceedings it would be a material factor that the actor had been thus misled if knowledge was a necessary element of the offence and in any case it would have a bearing on the sentence to be imposed
But that is not the question
The question is whether the character of an act done in face of a statutory prohibition is affected by the fact that it has been induced by a misleading assumption of authority
In my opinion the answer is clearly No Such an answer may make more difficult the task of the citizen who is anxious to walk in the narrow way but that does not justify a differ ent answer being given Lord Normand stated at page 849 thus But it is certain that neither a minister nor any subordi nate officer of the Crown can by any conduct or representa tion bar the Crown from enforcing a statutory prohibition or entitle the subject to maintain that there has been no breach of it In Attorney General for Ceylon vs AD Silva the Privy Council was called upon to consider whether the Collector of Custom was authorised to create a promise as against the crown
Considering that question at page 479 it was held that All ostensible authority involves a representation by the principal as to the extent of the agent s authority
No representation by the agent as to the extent of his authori ty can amount to a holding out by the principal
No public officer unless he possesses some special power can hold out on behalf of the Crown that he or some other public 847 officer has the right to enter into a contract in respect of the property of the Crown when in fact no such right exists
Their Lordships think therefore that nothing done by the Principal Collector or the Chief Secretary amounted to a holding out by the Crown that the Principal Collector had the right to enter into a contract to sell the goods which are subject matter of this action In Administrative Law by Wade 6th Edition at page 385 it is stated thus If the force of law is given to a ruling from an official merely because it is wrong the official who has not legal power is in effect substituted for the proper authority  which is forced to accept what it considers a bad decision
To legitimate ultra vires acts in this way cannot be sound policy being a negation of the fundamental cannons of administrative law
 Thus we have no hesitation to hold that before making the public authority responsible for acts of its subordi nate it must be established that the subordinate officer did in fact make the representation and as a fact
is compe tent to make a binding promise on behalf of the public authority or the Government ultra vires acts do not bind the authority and insistence to abide by the said ultra vires promise would amount to putting premium and legitimacy to ultra vires acts of subordinate officers
It is seen from the record that the Estate Manager is merely an inter mediary to collect the material between the respondent Port Trust and its tenants and to place the material for consid eration to the Board
Thereby the Estate Manager is not clothed with any authority much less even ostensible author ity to create a promise so as to bind the respondent that the respondent would allot the rooms on reconstruction to the tenants
The promise by him is an ultra vires act though conditional and therefore it does not bind the respondent
Though the executive necessity has not been satisfactorily established we hold that the doctrine of promissory estoppel in the light of the above facts cannot be extended in favour of the appellant and other tenants
Sri Tunara further submitted that the tenant did not derive title namely lease hold right from the respondent Port Trust under the Central Act
That the tenant disputed the title and it is a sufficient defence under the explana tion to section 43 to non suit the respondent 848 in the summary proceeding
It was open to the respondent to file a regular suit
The Small Cause Court ought to have rejected the application on that ground and the High Court would have gone into the question
It being a pure question of law this court may permit the appellant to argue on the point for the first time in this Court
It is undoubtedly true as held by catena of decisions of this Court that a pure question of law untraveled by questions of fact which goes to the roots of the jurisdiction
could be permitted to be raised for the first time in an appeal under article 136 of the Constitution
We are afraid
we cannot permit the appel lant to raise this point for the following reasons Firstly except making a bald averment in the written statement that the suit is not maintainable nothing has been pleaded in detail in the written statement
Admittedly this point was neither taken in the writ petition nor argued in the High Court
It is not even raised in the grounds of appeal in this Court nor even in points raised in the synop sis of the case It is stated that remotely it was raised in the rejoinder
Since it is a mixed question of facts and law and not being a pure question of law we cannot permit to raise the point for the first time that too when it would prejudice the respondent of their case at this stage
We accordingly decline to go into the question
We would also straighten the record and state that the appellants raised in the writ petition the vires of Sections 2 3 and 4 of the Maharashtra Amending Act 1963 introducing Sec
42A in Chapter VII of the and deleting Sections 45 to 47 from the Principal Act and of an amended Sec
49 thereof as well as Sec
462 of the Presi dency Small Cause Courts Act as amended by Maharashtra Amendment Act of 1976 as offending article 14 of the Constitu tion and unsuccessfully argued before the Division Bench of the High Court same point was raised in the grounds of appeal in this court
Though the appeal was argued for three days Mr Tunara did not argue this point across the Bar nor we had the advantage of hearing the learned Solicitor General
Even in a written brief running into 44 pages submitted by the counsel he did not deal with this point
The counsel after arguing the two points dealt with earli er has devoted his time on the question of jurisdiction of the trial court under Sec
41 despite our repeatedly re minding him that this point was neither raised nor argued in the High Court At the end he stated that he had elabo rately argued the point of vires before the Single Judge and the Division Bench and except repetition of the same once over he could do no better by further arguing here
There fore this Court could go through the judgment and deal with the point
We deprecate 849 this practice
When a constitutional question has been raised and does arise for consideration unless there is a full dressed argument addressed by either side before this court no satisfactory resolution could be made
Mere para phrasing the judgment of the High Court in particular when it relates to the local laws is no proper decision making
Therefore after giving our anxious consideration we with great anguish
decline to go into the point
Except these
no other points have been argued
Accordingly we do not find any merit in the appeal
The appeal is dismissed
but in the circumstances with out costs
NVK Appeal dismissed


Summary:
The two petitioners were apprehended while attempting to smuggle a huge amount of Indian and foreign currency and other contraband goods out of India and the Collector of Central Excise and Land Customs passed orders confiscating the seized goods and imposing heavy personal penalties on both of them under 275 section 1678 of the Sea Customs Act
On a subsequent complaint made by the Customs Authorities on the same facts the petitioners were convicted and sentenced by the Additional District Magistrate to various terms of imprisonment under section 23 read with section 23B of the Foreign Exchange Regulation Act section i678I of the Sea Customs Act and section 120B of the Indian Penal Code
The Additional Sessions judge in appeal affirmed the said orders of conviction and sentences and the High Court refused to interfere in revision
It was contended on behalf of the petitioners who had at an earlier stage made an unsuccessful attempt to move this Court under article 32 and have the prosecutions quashed that the orders of conviction and sentences passed on them by the Courts below infringed the constitutional protection against double jeopardy afforded by article 202 Of the Constitution
Held Per Das C J Bhagwati B P Sinha and Wanchoo Jj Subba Rao J dissenting that the contention was without substance and must be negatived
In order to sustain a plea of double jeopardy and to avail of the protection of article 202 of the Constitution it was incumbent to show that 1 there was a previous prosecution 2 a punishment and 3 that for the same offence and unless all the three conditions were fulfilled the Article did not come into operation
The word prosecution  as used in that Article contemplated a proceeding of a criminal nature either before a court or a judicial tribunal
Maqbool Hussain vs The State of Bombay   relied on
The insertion of section 187A into the Sea Customs Act by the amending Act of 1955 left no scope for doubt that the hierarchy of Authorities under that Act functioned not as Courts or judicial tribunals but as administrative bodies even though in recording evidence or hearing arguments they acted judicially
The words  offences  and  penalties  used by the Act could not have the same meaning as in Criminal Law and a penalty or confiscation ordered under section 1678 of the Act could not be a punishment such as is inflicted by a Criminal Court for a criminal offence
Sewpujanrai Indrasanrai Ltd vs The Collector of Customs and others   referred to
Nor were the Customs Authorities invested with the powers of a Criminal Court under the Schedule to section 167 and the procedure laid down by Ch
XVII of the Act and any orders passed by them either in rem or in personal by way of confiscation of the goods or imposition of penalties on the person could only be in the nature of administrative ones made in the interest of revenue and could not bar a criminal prosecution
Morgan vs Devine  and United States of America vs Anthony La Franca   considered
276 The proceedings against the petitioners before the Collector of Customs under section 1678 of the Sea Customs Act could
not therefore be a prosecution within the meaning of article 202 Of the Constitution and the petitioners were not put to double jeopardy
Per Subba Rao J
The prosecution of the petitioners before the Magistrate and the punishment inflicted on them directly infringed article 202 of the Constitution
There can be no inconsistency in an authority under an Act functioning in an administrative capacity in respect of certain specified duties while it acts as a judicial tribunal in respect of others and the question as to which of them it discharges in a judicial capacity has to be decided on the facts of each case and in the light of well settled characteristics of a judicial tribunal
Cooper vs Wilson and Venkataraman vs Union of India   relied on
Although this Court has held that the Sea Customs Autho rities in adjudging confiscation do not function as judicial tribunals but as mere administrative authorities the question as to whether imposing personal penalties they act as judicial tribunals still remains open
Maqbool Hussain vs The State
of Bombay  and Sewpujanrai Indrasanrai Ltd vs The Collector of Customs   explained
An examination of the entire scheme of the Sea Customs Act leaves no manner of doubt that the Customs Authorities act as judicial tribunals so far as offences under section 167 Of the Act are concerned
The word prosecuted  used in article 202 of the Constitution is comprehensive enough to include a prosecution before an authority other than a Magistrate or a Criminal Court and the offences described in section 167 Of the Sea Customs Act are offences within the meaning of the General Clauses Act and the Indian Penal Code and the penalties prescribed therefor are nothing but punishments inflicted for those offences either by the Customs Authorities or the Magistrate
The question of the identity of an offence has to be deter mined on the facts of each particular case and the real test is whether the previous prosecution and punishment were based on the same facts on which rested the subsequent prosecution and punishments