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2006 DIGILAW 227 (GAU)

Bijita Saha v. State of Tripura

2006-03-08

AMITAVA ROY, T.VAIPHEI

body2006
The appellants-writ petitioners are aggrieved by the judgment and order dated 06.01.2006, passed in W.P. (C) No. 2547 2000, negating their impugenment of the decision of the State respondents to alter the site of the proposed district hospital and staff quarters from Chandrapur to Dhajanagar in South Tripura District. 2. We have heard Mr. A. K. Bhowmik, Senior Advocate assisted by Mr. P. Mazumder, Advocate for the appellants-writ petitioners, Mr. U.B. Saha, Senior Govt. Advocate assisted by Mr. T. D. Mazumder, Advocate for the State respondents and Mr. P. K. Biswas, learned Assistant Solicitor General, Union of India. 3. The run up of facts leading to the filing of the writ petition has to be essentially noticed. The appellants-writ petitioners as the residents of Udaipur Sub-Division of South Tripura District, seeking to represent the lawful demand and interest of the general public of their locality, have pleaded that in the year 1988, on the basis of a decision made by the highest authority of the State in the Health Department, Govt. of Tripura i.e the Minister of Health, Govt. of Tripura with the concurrence of the prominent and respectable citizens of Chandrapur and its adjoining villages decided to set up a District Hospital and Staff Quarter at Chandrapur, According to them, the selection was made on the basis of an express promise made by the Govt. of Tripura, Department of Health for which the citizens of Chandrapur village and the other nearby villages donated lands measuring about 80 kanis by executing registered deeds of gift in favour of the Government. In the same year, the land, which is situated adjacent to the Agartala-Sabroom road, was developed, by the people of the locality and an approach road was also laid by the Government. Electric connection was also provided. Soil testing of the land was conducted and the structural engineers designed the plan with sketch map etc. The clearance certificates required under the law were obtained and the Union of India also approved the proposal. Accordingly, the Chief Minister of the State also laid the foundation stone for setting up the Hospital and the Staff Quarter at Chandrapur. The administrative approval for Rs. 2,34,42,000/-, of the Health and Family Welfare Department was conveyed by the Director of Health Service, Govt. of Tripura, Agartala to the Superintendent Engineer 3rd Circle, PWD Udaipur, by the communication dated 01.07.1992. The administrative approval for Rs. 2,34,42,000/-, of the Health and Family Welfare Department was conveyed by the Director of Health Service, Govt. of Tripura, Agartala to the Superintendent Engineer 3rd Circle, PWD Udaipur, by the communication dated 01.07.1992. Tenders for the construction works were invited on 19.09.1992. 4. The appellants-writ petitioners have complained that while the matter rested at that in the year 1998, the then Health Minister of the State initiated a move to shift the site of the hospital and staff quarters from Chandrapur to Dhajanagar on extraneous considerations, thereby seeking to frustrate the steps already taken. This is the appellants-writ petitioners have asserted was in derogation of the express promise of the Govt. of Tripura. The appellants-writ petitioners have annexed a communication dated 13.08.1998, issued by the Chief Medical Officer (s) South Tripura, Udaipur, addressed to the Director of Health Services, Govt. of Tripura Agartala, conveying the said desire of the aforesaid authority. They have maintained that the site at Chandrapur is most convenient and suitable for setting up the Hospital and the staff quarters for the public at large of the entire district being located at the centre point thereof and adjacent to all its Sub-Divisions. According to them, the new site at Dhajanagar would be wholly inconvenient and far away from the said Sub-Divisions. Being aggrieved by the proposal, they submitted a representation on 06.03.1999 to the Chief Minister of the State, which however, remained unattended. In this backdrop, the appellants-writ petitioners approach this Court, questioning the impugned decision to be illegal, arbitrary, mala fide being prompted by irrelevant considerations and also hit by the doctrine of promissory estoppel. 5. The State respondents in their counter admitted that in the year 1988, the State Govt. had decided to establish a district Hospital for South Tripura at Udaipur and that a site at Chandrapur was selected for the purpose. They also admitted the donation of land by the persons of the locality. According to them, the land is located in the interior for which an approach road had to be made. They admitted that the design, plan and estimate for the proposed District Hospital, were made and the administrative approval of the expenditure was conveyed in the year 1992. They also admitted the donation of land by the persons of the locality. According to them, the land is located in the interior for which an approach road had to be made. They admitted that the design, plan and estimate for the proposed District Hospital, were made and the administrative approval of the expenditure was conveyed in the year 1992. While the proposed works remained suspended due to financial stringency, in the year 1998, the respondents proposed to change the site to Dhajanagar, as the new site is within the vicinity of Udaipur town area. Accordingly, a new site of an area measuring 13.96 acres at Dhajanagar was selected and the land was made available to the Health and Family Welfare Department. They, however, admitted that the administrative approval for the new site was yet to be issued and that no construction work has been undertaken at any of the two sites. While expressing reservation on the locus of the appellants-writ petitioners to represent the interest of the public at large of the locality, the answering respondents stated that though the selection of the site at Chandrapur and the administrative approval for an amount of Rs. 4,00,40,000/-, for the hospital building and Rs. 2,34,42,000/- for the staff quarters was extended, funds were not placed with the Public Works Department to initiate the works. They have maintained that in the year 1998, the local authorities of Udaipur and the South Tripura District explored the feasibility of expansion of the Tripura Sundari Hospital, Udaipur due to Constraint of space at the present location of the said hospital and for that purpose resorted to identify a more specious area in the vicinity of Udaipur Town. The authorities of the Health Department with that end in view selected a site at Dhajanagar under RK Pur Mouza, which was considered to be relatably more suitable for establishment of the proposed District Hospital of Tripura, in comparison to the site earlier selected at Chandrapur. In the newly selected site, land measuring 13.96 acres was also made available to the Health Department for the proposed project. In the newly selected site, land measuring 13.96 acres was also made available to the Health Department for the proposed project. The answering respondents maintained that the site at Chandrapur is not conveniently located being far away from the Udaipur Town with no convenient communication facilities and, therefore, the site at Dhajanagar, being comparatively better located with adequate communication facilities, it would be more convenient for the public in general and the ailing patients and their families to avail medical help and attention at the hospital. 6. While denying the assertions made in the writ petition about the promise said to be held out by the respondent authorities for setting up the hospital and the staff quarters at Chandrapur, the answering respondents have contended that the impugned decision is prompted by the consideration of public welfare. Besides it is within the domain of the Govt. to select a proper place, therefore. In a supplementary affidavit filed by them, the respondents have cited the following reasons in support of the impugned decision : "(i) That the earlier proposed site is situated about 8.5 k.m. from Udaipur District Headquarters towards Beloniaand thus further away from Agartala and also is 500 mtrs. inside from the Agartala Sabroom National Highway. (ii) That on the other hand, the present site, is on the Udaipur Agartala main road and is about 1.5 k.m. from the Udaipur town. (iii) That it is found that the District Hospital will be quite far away from district Headquarters if it is constructed at the earlier proposed site of Chandrapur. Moreover, it will also be at a distance from the Agartala Sabroom National Highway. Many times emergency cases are referred from the District Hospital to Agartala. They earlier proposed site is about 10 k.m. further away from Agartala than the new proposed site. In emergency cases, vitally crucial time will thus be lost, (iv) That the earlier proposed site is located in a thinly populated area with almost no Government establishment. On the other hand, the present site is located in thickly populated area very close to Udaipur town and the Degree College, the District Police Headquarters and the Bn. In emergency cases, vitally crucial time will thus be lost, (iv) That the earlier proposed site is located in a thinly populated area with almost no Government establishment. On the other hand, the present site is located in thickly populated area very close to Udaipur town and the Degree College, the District Police Headquarters and the Bn. Headquarters of 23 Assam Rifles." They further contended therein that the donated land at Chandrapur, was being proposed to be utilized to establish through a Community Health Center under the National Health Mission to cater to the medical needs of the local people, so that they could avail the facilities of a referral institution at their door steps. 7. In their rejoinder affidavit, the appellants-writ petitioners while reiterating their assertions, have controverted the averments in the State's counter bearing on the locational advantages of the new site. They have maintained that the proposed site at Dhajanagar would be relatively far away from the four Sub-Divisions of the District. 8. The learned Single Judge on the pleaded facts and the materials available on record, concluded that the appellants-writ petitioners had failed to plead and prove the promise of the State respondents to set up the District Hospital at Chandrapur. It held the view that for non-production of the gift deeds, the legal relationship between the promiser and the promisee was not decipherable. It concluded that the writ petition did not disclose that the appellant-writ petitioners had donated their lands in response to a definite promise to them by the State Government that the hospital would be constructed thereon. Observing that the recorded facts did not disclose the possible adverse effects of the impugned decision on the interest of the public in general of the district, the learned Single Judge declined to interfere therewith in exercise of the power of judicial review. 9. Mr. Bhowmik has persuasively argued that the respondents State having extended a clear promise to set up the District Hospital and the Staff Quarters at Chandrapur, acting on which the people of the said locality had donated their lands, following which the essential steps had been taken in furtherance of the decision, the respondents are estopped in law from altering the site. The people of the locality having donated their lands by registered deeds of gift, on the express promise that the District Hospital and the Staff Quarters would set up at Chandrapur, the respondents ought to be held to their commitment more particularly, when the administrative approval of the site hand been made and the funds for completion of the project had been sanctioned. According to the learned Senior counsel, the preparatory steps, the related administrative decisions and the laying down of the foundation stone by the highest executive authority of the State at Chandrapur, being clearly indicative of the finality of the site taking into consideration all relevant aspects, the impugned decision is per se prompted by extraneous considerations and is thus liable to be adjudged, illegal and unconstitutional. Mr. Bhowmik argued that the facts and circumstances of the case, clearly revealed an unequivocal promise on behalf of the State Government and its authorities to construct the District Hospital at Chandrapur and there-fore, the proposal to shift the site therefore, is hit by the doctrine of promissory estoppel. The proposed new site being inconveniently located compared to Chandrapur, the impugned decision is opposed to public interest as well and therefore on that count also the same is liable to be interfered with. Referring to the pleaded facts and a copy of the gift deed produced in course of the hearing, Mr. Bhowmik contended that an express promise on behalf of the State and its authorities to set up the District Hospital at Chandrapur, is decipherable there from. Further as admittedly, the area of the land earmarked at Dhajanagar, is much lesser than that at Chandrapur, the reasons enumerated in support of the impugned proposal are wholly irrelevant on the face of the record. The impugned decision being at the instance of the Minister of the concerned Department on- non-germane considerations, the same is liable to be adjudged, arbitrary and mala fide as well. 10. The learned Senior Govt. Advocate in reply has argued that the facts available do not disclose any promise by the State Govt. and its authorities to construct the District Hospital and Staff Quarters at Chandrapur and therefore, the plea of promissory estoppel, is misconceived. 10. The learned Senior Govt. Advocate in reply has argued that the facts available do not disclose any promise by the State Govt. and its authorities to construct the District Hospital and Staff Quarters at Chandrapur and therefore, the plea of promissory estoppel, is misconceived. The appellants-petitioners having failed to provide the essential particulars of the promise, so as to identify the author (s) thereof and his/their competence in that regard, the learned Single Judge was justified in negating the contention in face of a categorical denial thereof, by the State respondents in their counter, he urged. Mr. Sana maintained that even the gift deed produced does not indicate that the donation of the land specified therein had been insisted upon by the State respondents as a condition precedent for constructing the District Hospital and Staff Quarters at Chandrapur. In that view of the matter, even assuming that the people of the locality had donated their lands being aware of the administrative decision for initiating such a project, no promise by the State respondents could be inferred therefrom. Referring to the original records pertaining to the issue, Mr. Saha argued that the selection of the new site is informed with reasons in advancement of public interest. He contended that the new site considering the underlying objective of the project, would better sub serve the same. The impugned decision being based on relevant considerations like better situation and communication facilities, is obviously in public interest and does not merit the interference of this Court. 11. Mr. Biswas has argued that the Union of India after weighing the pros and cons of the matter had extended its approval, vis-avis the earlier site at Chandrapur. According to the learned Assistant Solicitor General, the impugned decision is without reference to his Govt. 12. We have carefully considered the rival submissions of the parties. Two broad issues seek resolution. Whether the State respondents had held out an explicit promise to the petitioners and other persons of the locality at Chandrapur village to construct the District Hospital and the Staff quarters and if it is so, whether such promise is enforceable in law. Further whether the State respondents in the accompanying facts and circumstances of the case are liable to be interdicted from implementing the impugned decision by invoking the doctrine of promissory estoppel. 13. On the facet of promise two dissenting versions are available. Further whether the State respondents in the accompanying facts and circumstances of the case are liable to be interdicted from implementing the impugned decision by invoking the doctrine of promissory estoppel. 13. On the facet of promise two dissenting versions are available. Whereas the appellants-writ petitioners maintain that the Govt. of Tripura through the Minister of Health had extended the promise following which at the instance of the said authority and other responsible citizens of the locality, they together with others had gifted their lands for effectuating the project, the official respondents have denied the said claim. Both the parties however, are one in admitting that the site for the District Hospital had been initially selected to be at Chandrapur and that the administrative approval therefor had also been conveyed. They are ad idem in maintaining that the necessary funds had also been allotted and that the Chief Minister of the State had laid the foundation stone for the project. A lull followed thereafter. 14. Significantly, though the statements in paragraph 1 to 16 in the original writ petition have been sworn to be true to the knowledge of the original writ petitioner No. 1 Khagendra Kr. Saha, the affidavit annexed to the amended writ petition on records omits to mention the paragraphs. The affidavit to the amended writ petition is therefore incomplete, the deponent however being the same. The statements relating to the promise however had been sworn to be true to the knowledge of the said dependent in the affidavit annexed to the original writ petition. The counter of the State respondents is sworn by Smti. Binapani Deb Barma, Under Secretary, to the Government of Tripura, Health & Family Welfare Department and paragraph 17 thereof, which contains a denial of the assertion of promise has been sworn to be true to her knowledge gathered from the records maintained in the official course of business. The recitals is one of the gift deeds produced in course of the hearing to substantiate the assertion of promise, however does not disclose any such promise in categorical terms. It discloses that the Govt. had agreed to construct a District Hospital of its expense and that the respected persons of the locality having approached the donor on behalf of the Director of Health Services, the conveyance was made permitting and requiring the said authority to construct the same. It discloses that the Govt. had agreed to construct a District Hospital of its expense and that the respected persons of the locality having approached the donor on behalf of the Director of Health Services, the conveyance was made permitting and requiring the said authority to construct the same. The official records produced for the perusal of this Court does not disclose any tangible material to demonstrate that any assurance was provided by or on behalf of Government of Tripura to Lie public at large to set up the District Hospital and StafTQuarters at Chandrapur, though the site threat was selected by the Site Selection Committee, Udaipur. The records do not reveal that the persons of the said locality had been promised the District Hospital there, on the condition of donation of land by them therefor. Though the records documents available in the records proclaim that the process for constructing the District Hospital at Chandrapur, was pursued to a considerable extent, the same do not suggest that any binding assurance of any kind had at any point of time been made by the Govt. or its authorities to assume the form of a promise or a representation prohibiting a departure therefore under any circumstances. As it is, the selection of the site at Chandrapur, grant of administrative approval of the project, sanction of funds and the laying of the foundation stone of the hospital building though is indicative of the decision of the State respondents to set up the hospital there, the same per se, cannot be held to be unerringly demonstrative of any commitment to the people of the locality, so much so, to induce them to alter their position to their prejudice to attract the applicability of the doctrine of promissory estoppel. Not only are the facts relating to the purported promise are disputed on an overall consideration of the materials available on records, we are unable to persuade ourselves to hold that the factum of promise by the Govt. of Tripura and its authorities has been established in the instant case. Considering the consequences of such promise, if proceed, we are of the view that a heavy burden of pleading and proving the same rests on the party asserting it. The petitioners, according to us, have failed in their role. 15. The Apex Court in Sharma Transport Vs. Govt. of A.P. & Ors. Considering the consequences of such promise, if proceed, we are of the view that a heavy burden of pleading and proving the same rests on the party asserting it. The petitioners, according to us, have failed in their role. 15. The Apex Court in Sharma Transport Vs. Govt. of A.P. & Ors. (2002) 2 SCC 188 , summarized the law on the doctrine of promissory estoppel as follows: "There is preponderance of judicial opinion that to invoke the doctrine of promissory estoppel, clear, sound and positive foundation must be laid in the petition itself by the party invoking the doctrine and that bald expression, without any supporting material, to the effect that the doctrine is attracted because the party invoking the doctrine has altered its position relying on the assurance of the Government would not be sufficient to pres into aid the doctrine. 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 is made and it is in fact so acted upon by 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." 16. In Motilal Padampat Sugar Mills Co. Ltd. Vs. State of U.P. (1979) 2 SCG 409, the Apex Court held that since the doctrine of promissory estoppel is an equitable doctrine it must yield where the equity so requires. When it could be shown by the Govt. that having regard to the facts, it would be inequitable to hold it or any public authority to the promise or representation made by it, the Court would not raise an enquity in favour of the promise and enforce the promise against the promissory. Where the Govt. is 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 citizen, which helps them to act upon and alter their position and the public interest likely to suffer, if the promises are required to be carried out by the Govt. and determine which may the equity lies. 17. and determine which may the equity lies. 17. The consensus of judicial opinion, is that an apparent, unmistakable and positive foundation must be laid in the petition by the party invoking the doctrine and that general, omnibus and sweeping statements without any corroborative evidence would not be sufficient. The essence of the doctrine being an equitable restraint on a promisor, acting on which the promise had altered his position, to retract from his commitments, the party seeking invocation of the doctrine has to essentially lay a proper factual base to compel the assurer to keep his promise. 18. The pleaded facts offered by the petitioners fall short o£ the above judicially evolved parameters. Their plea asserting a promise by the Govt. of Tripura and its authorities to construct a hospital at Chandrapur village, therefore in the facts of the instant case, therefore untenable. Consequently the doctrine of promissory estoppel is not available to them for the reliefs prayed for. 19. The records bearing No. F.3(1-76)-PLAN/MS/88 Vol. II, on the subject "Development of Hospital District Wise", transparently divulge after selecting the site at Chandrapur, the process progressed to a great extent but had to be abandoned due to financial stringency. The letter dated 17.08.1998 (Annexure D to the writ petition), of the Chief Medical Officer (s), South Tripura, Udaipur and addressed to the Director of Health Services, Govt. of Tripura Agartala, though has a reference of the Minister of Health of the State, the records do not disclose that the decision to shift the site was mechanically taken as desired by the said authority. There are materials to substantiate that the issue of utility of the District Hospital, if constructed at Chandrapur with the Staff Quarters had engaged the attention of the concerned authorities, since the early part of the year, 1992. An alternative site at Dhajanagar was identified and the District Magistrate and Collector South Tripura, District Udaipur, was required to furnish his views on the relative merits of the two locations for the purpose. The officials of the Health Department also visited Dhajanagar and the Chief Medical Officer South Tripura, Udaipur in his note dated 19.01.2000, recommended the new site in preference to one at Chandrapur from the infrustructural and situational points of view. He inter alia highlighted that the site at Chandrapur was exposed to security risks with the change in the situation over the years. He inter alia highlighted that the site at Chandrapur was exposed to security risks with the change in the situation over the years. He recommended the site at Dhajanagar being free from such risk besides being located in a densely populated area with all necessary facilities including abundant ground water. The District Magistrate & Collector South Tripura, Udaipur, by his communication No. F.2 (9)-DM (S)/REV/98/l 136-39, dated 10.06.2002, addressed to the Director of Health Services, Govt. of Tripura, Agartala also certified the site at Dhajanagar to be more preferable than the one at Chandrapur. It was underlined in the said communication that the first site was situated about 8.5 kilometres from Udaipur District Head Quarters towards Belonia and away from the Sabroom National Highway. The new site is on the Udaipur-Agartala main road located about 1.5 kilometers from Udaipur town. It emphasized that because of the longer distance, vital time may be lost in emergent cases with fatal consequences. The communication further revealed that the earlier site was located in a thinly populated area with almost no Govt. establishment. The proposed site on the other hand was situated in a densely populated area and closed to Udaipur town, the District College, the District Police Head Quarters and the Bn. Head Quarter of 23 Assam Rifles. The earlier site was also not preferable from the security point of view, it added. 20. On a consideration of the recorded facts as above, it is not possible to hold that the decision to shift the site to Dhajanagar is prompted by any extraneous consideration or the whims and facies of any authority in power. The grounds referred to in the aforementioned communication of the District Magistrate cannot by any means be discarded as irrelevant having regard to the end view of the project to be undertaken. As a matter of fact, the note of the Chief Medical Officer (s), South Tripura Udaipur submitted in the year 2000, is also in the same lines. Two responsible authorities of the Govt. therefore, seem to have concurred in preferring Dhajanagar to be the site for the District Hospital and the Staff Quarters. The reasons for preferring the new site are not divorced from public interest rather are informed with the concern for the betterment of the same. Two responsible authorities of the Govt. therefore, seem to have concurred in preferring Dhajanagar to be the site for the District Hospital and the Staff Quarters. The reasons for preferring the new site are not divorced from public interest rather are informed with the concern for the betterment of the same. It is therefore, not possible for this Court to deduce that only because the area available in Chandrapur, in all is bigger than the one identified at Dhajanagar, the other overriding factors ought to be ignored to impeach the impugned decision. It is no longer res Integra that judicial review of an administrative action is a supervisory and not an appellate jurisdiction. The supervising Court therefore, must bear in mind that it is not sitting on appeal but only is engaged in the process of ascertaining as to whether the decision maker had acted within the bounds of his discretion. The State and its authorities being the architect of the Governmental decisions and the policy to administer their affairs, some free play in the joint have to be conceded. A policy or a decision when under challenge has to be tested in the touchstone of legality, rationality and reasonableness. While unbridled and unfettered discretion is an anathema to the rule of law, an administrative decision, if determined to be within the permissible contours of the discretionary exercise of power, no interference in the exercise of the supervisory jurisdiction is called for. 21. The oft quoted passage of Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corporation, 1947 2 ALL ER 680, synopsize the principles as hereinbelow. The Court is entitled to investigate the action of the local authority with a view to seeing whether or not they have taken into account matters which they ought not to have taken into account, or. conversely, have refused to take into account or neglected to take into account matter which they ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that, although the local authority had kept within the four corners of the matters which they ought to consider, they have neverthless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as appellate authority to override a decision of the local authority, but as a judicial authority which is concerned and concerned only, to see whether the local authority has contravened the law by acting in excess of the power which parliament has confided in them." 22. In the attending facts and circumstances, we are of the considered opinion that the impugned decision neither suffers from any arbitrary or illegal exercise of administrative discretion nor is subversive of public interest. The factors taken note of by the respondent authorities proclaim that the selection of the new site has been to advance the same. In exercise of the power of judicial review, this Court is not called upon to make an indepth analysis of the comparative merits and demerits of the proposals, being ill equipped therefor. The view taken by the respondents being one of the plausible ones with no apparent illegality, irrationality, unreasonableness or arbitrariness afflicting the same, we are not inclined to interfere with the impugned decision. 23. We have perused the impugned judgment and order and concur with the conclusions arrived at. There is neither any perversity nor apparent error in the appreciation of the contextual facts and the related issues. The upshot of the above narrative is that the appeal is without merit and is accordingly dismissed. No costs.