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2006 DIGILAW 42 (GAU)

Bijita Saha v. State of Tripura

2006-01-06

A.B.PAL

body2006
ORDER A.B. Pal, J. 1. In this writ petition, the only question this Court is called upon to decide Is whether in the undisputed facts and circumstances of this case, a writ Court can direct the State Government to construct and establish a District hospital In a particular location by invoking the doctrine of Promissory Estoppel. 2. The factual position being almost undisputed, the controversy in the present proceeding lies in a narrow compass. Fifteen petitioners herein are either residents of Chandrapur village or have lands in that village and they like other people of the village are very much keen to have the District hospital of South Tripura district established in that village. They have filed the writ petition for lawful demand and legal interest of general public of their locality as claimed in para 2 of the said petition. It is their contention that in the year 1988, Sri Kashiram Reang, the then Minister of Health & Family Welfare had taken a decision to establish the South Tripura district hospital at Chandrapur and on the basis of that decision, the petitioners and other villagers donated by registered gift deed certain lands for that purpose. The total lands including the lands donated/selected for the purpose measured 80 kanis. The villagers developed the lands and the State respondents constructed an approach road. The lands had the facility of electric supply line nearby. The plan and sketch map were prepared by the architect and the Union of India conveyed its approval to the proposal. In 1989, the Chief Minister of the State laid the foundation stone and in 1992, the State Government accorded administrative approval for an amount of Rs. 2,34,42,000/- for construction of staff quarters for the said hospital. The Public Works Department invited tenders for construction of the said staff quarters in 1992. Thereafter, for a long period of six years nothing more was done and in the year 1998 when Shri Keshab Majumder was the Health Minister of the State, an Initiative was taken to shift the venue from Chandrapur to Dhawjanagar. The Public Works Department invited tenders for construction of the said staff quarters in 1992. Thereafter, for a long period of six years nothing more was done and in the year 1998 when Shri Keshab Majumder was the Health Minister of the State, an Initiative was taken to shift the venue from Chandrapur to Dhawjanagar. The petitioners alleged that this decision to shift the site of the district hospital was in violation of the express promise of the State respondents to the petitioners and others who had donated the land for the purpose of establishing the South Tripura District hospital at Chandrapur village and thus the doctrine of promissory estoppel strongly applies against the attempt to shift the site. That apart, further contention is that the decision to shift the site amounts to violation of Articles14, 21 and 300-A of the Constitution. By this writ petition, the petitioners have sought a direction to the respondent Nos. 1 to 5 to construct the District hospital and staff quarters at Chandrapur village in the interest of justice. 3. The State respondents contesting the claims of the writ petitioners contended, inter alia, in the joint counter-affidavit that the decision to shift the location of the proposed hospital flowed from a pragmatic consideration. It has been admitted that in the year 1988, the State respondents decided to establish the district hospital and for that purpose directed the Sub Divisional Officer (SDO), Udaipur to select suitable lands. Accordingly, an area of 31 acres of khas and jote lands at Chandrapur was selected out of which 12.64 acres of lands were khas, 2.33 acres were acquired and 16.76 acres were donated by the owners. Design, plan and estimate for the proposed construction were in place and received administrative approval for expenditure in the year 1992. But the proposed construction had to be suspended due to non-availability of fund. In 1998, the proposal was reviewed and it was felt that the location of the proposed hospital should be nearer to the district headquarter for availing of the essential facilities. In the supplementary affidavit filed by the said respondents more informations relating to the decision to change the location of the proposed hospital have been recorded. It is contended that the location of Chandrapur village is 8.5 km from Udaipur district headquarter and 500 mts. away from Agartala Sabroom national highway. In the supplementary affidavit filed by the said respondents more informations relating to the decision to change the location of the proposed hospital have been recorded. It is contended that the location of Chandrapur village is 8.5 km from Udaipur district headquarter and 500 mts. away from Agartala Sabroom national highway. That apart, the area at Chandrapur is thinly populated and has no easy access to the other Government establishments which are supposed to render assistance to the proposed hospital. The State Government in consideration of these facts decided to change the location and selected 13.96 acres of land at Dhawjanagar, a place much nearer to the district headquarter, Udaipur Degree college and Battalion Headquarter of 23, Assam Rifles. Easier and speedier access to the State hospital at the State capital from the new site for emergency cases is also an important aspect which prominently figured in the consideration of the State Government while deciding to shift the site of the proposed hospital. The State Government, however, decided that the lands available at Chandrapur would be utilized for establishing a 30-bedded hospital known as Community Health Center as per national norms. Under the National Health Mission such a health center may be established for every 80,000 to 1.2. lakh population. As regards district hospital for which fund was not available for a long period the State respondents have stated in para 11 of the supplementary affidavit that the Ministry of Development for North Eastern Region by letter dated 30-6-2005 has sanctioned Rs. 270 lakhs to the State Government as Central assistance for the South Tripura district hospital and this being the first instalment of the project the amount is required to be utilized as otherwise the fate of the project would be at jeopardy. It has been pointed out that because of the stay order obtained from this Court by the petitioners at the time of admission of the writ petition, the State respondents could not make any headway to implement the project by utilizing the fund made available after a long wait and much efforts. 4. By order dated 27-2-2002, this Court (B.B. Deb, J.) issued rule and stayed construction of the hospital in the new site till disposal of the writ petition. 4. By order dated 27-2-2002, this Court (B.B. Deb, J.) issued rule and stayed construction of the hospital in the new site till disposal of the writ petition. For the circumstances explained above particularly for the public interest of constructing the district hospital with the fund assistance made available by the Central Government, this writ petition has been taken up for early disposal. 5. I have heard Mr. B. Das, learned Sr. advocate assisted by Mr. D.C. Roy, advocate for the petitioners and Mr. T.C. Roy, learned Advocate General assisted by Mr. A. Ghosh, learned advocate for the respondents. 6. From the pleadings noted above, the admitted factual position is that the State respondents decided to establish/construct the district hospital at Chandrapur village on the lands comprising khas lands, acquired lands and donated lands. Foundation stone of the hospital was laid by the Chief Minister, plan, design and estimate were prepared, administrative approval for construction of staff quarters was accorded and an approach road from the national highway to the selected lands was also constructed. Thereafter, for non-availability of fund, the State Government did nothing towards implementation of the project for a period of ten years. Thereafter, the State Government had a re-look to the entire proposal and from fresh considerations decided to shift the proposed hospital from Chandrapur village to Dhawjanagar, a location nearer to the district hospital. In the above premises, the question is whether there was a promise on the part of the State respondents to construct the district hospital at Chandrapur village and whether such promise constituted a promissory estoppel which prevents the State respondents from shifting the location of the site of the proposed hospital. It is to be noticed that the petitioners have not stated anywhere in the writ petition the lands each of them actually donated and whether such donation was in response to a definite promise to them by the State Government that the hospital would be constructed on their lands. The total lands available for the proposed hospital at Chandrapur measured 31 acres which comprised 12.64 acres of khas land 2.33 acres of acquired lands and 16.76 acres of donated lands. The total lands available for the proposed hospital at Chandrapur measured 31 acres which comprised 12.64 acres of khas land 2.33 acres of acquired lands and 16.76 acres of donated lands. According to the new proposal to shift the location to Dhawjanagar, only 13.96 acres were selected for the hospital indicating thereby that even without the donated lands, the State respondents could construct the proposed hospital on the khas land and the acquired lands. The gift deeds donating the lands for the purpose have not been made available by the writ petitioners and the exact and precise promise to them and other villagers have also not been recited In the pleadings. In response to the proposal to construct a Community Health Center on the lands at Chandrapur the petitioners in the rejoinder scoffed at the same by stating that such a proposal is grossly unreasonable and unfair. 7. The law relating to promissory estoppel is to be understood properly before its application in a given facts and circumstances. The principles seem to apply where a clear and unequivocal promise is intended to create legal relation knowing or Intending that It would be acted upon by the other party to whom the promise is made. If the promisee acts upon such a promise, the promisor would be bound by such promise and would not be entitled to go back upon it. In order to press into service the principle of promissory estoppel, It is necessary for the petitioners to plead and prove that there was a promise from the State respondents to construct the district hospital on their lands and acting on that promise, the petitioners as promisees had donated their lands. The other prerequisite for applying this principle is to plead and prove the legal relationship which was sought to be established between the promisor and the promisees to arise in future as such a relationship is a sine qua non for the application of this principle evolved by equity. It has been pleaded by the writ petitioners that they have donated the lands for the Interest of the general public, not for their own interest. It has been pleaded by the writ petitioners that they have donated the lands for the Interest of the general public, not for their own interest. A district hospital Is Intended not for the benefit of the petitioners or the people of Chandrapur village only but for the Interest of the people of the entire district and for that matter, the petitioners have not pleaded how the interest of the people of the district as a whole would be affected by the decision to change the location and how the petitioners alone are entitled to represent the entire population of the district. They have also not pleaded what legal relationship was intended to be created between them and the State respondents by donating the lands for the purpose of the district hospital. 8. The Supreme Court in Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh reported in [1979] 118 ITR 326 (SC) has elaborately dealt with the doctrine of promissory estoppel and how it would apply against the Government. It is no longer res integra that the doctrine of promissory estoppel applies against the Government like everyone who is subject to the law fully and completely. However, doctrine of promissory estoppel being an equitable doctrine it must yield when it can be shown that having regard to the facts of the case, it would be Inequitable to hold the Government to the promise made by it. The relevant part of the decision of the Apex Court is gainfully quoted below: Everyone is subject to the law as fully and completely as any other and the Government Is no exception. It is indeed the 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. The Government cannot claim to be immune from the applicability of the rule of promissory estoppel and repudiate a promise made by it on the ground that such promise may fetter Its future executive action. If the Government does not want its freedom of executive action to be hampered or restricted, the Government need not make a promise knowing or intending that it would be acted on by the promisee and the promisee would after his position relying upon It. If the Government does not want its freedom of executive action to be hampered or restricted, the Government need not make a promise knowing or intending that it would be acted on by the promisee and the promisee would after his position relying upon It. But If the Government makes such a promise and the promisee acts In reliance upon it and alters his position, there is no reason why the Government should not be compelled to make good such promise like any other private Individual. But since the doctrine of promissory estoppel is an equitable doctrine, It must yield when the equity so requires. If it can be shown by the Government that having regard to the facts as they have subsequently transpired, it would be inequitable to hold the Government to the promise made by it, the Court would not raise an equity in favour of the promisee 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. If the facts of the case on hand are applied to the anvils of the above principle, it may be noticed that the petitioners have not pleaded and proved: (i) What was the precise, unequivocal and clear promise of the State respondents to the petitioners and other villagers who donated the lands; (ii) What was the recital of the gift deeds which is necessary to determine whether by such deeds any legal relationship between the promisor and the promisees was sought to be established; (iii) Whether the promise preceded the donation of the lands. It has been pleaded that after the decision by the State Government to construct a hospital at Chandrapur village, the petitioners and other villagers decided and donated the lands. The word 'promise' in response whereof the lands were gifted has been carefully avoided; (iv) How the decision of the State Government to change the location from Chandrapur to Dhwajanagar would adversely affect the general interest of the people of that district and in what way the interest of the petitioners stood affected. The word 'promise' in response whereof the lands were gifted has been carefully avoided; (iv) How the decision of the State Government to change the location from Chandrapur to Dhwajanagar would adversely affect the general interest of the people of that district and in what way the interest of the petitioners stood affected. In the absence of failure of the petitioners to plead and prove the above requirements, the doctrine of promissory estoppel, in my considered view, cannot be pressed into service for the purpose of seeking any direction to the State respondents not to change the location of the district hospital. 9. It needs to reiteration that it is within the exclusive domain of the executive to determine the suitable location of a district hospital and now it would subserve the interest of the people of the district and a writ Court cannot encroach into that domain unless it can be shown that the decision is perverse, actuated by consideration other than public interest and the doctrine of promissory estoppel calls for interference. As has been noticed above, no such circumstances do exist in the present case and the petitioners have failed to make out a case for interference by this Court with the decision of the State Government to change the location of the proposed hospital from a consideration of locational advantage as adverted to in the supplementary counter affidavit of the respondents. It, however, needs to be made clear that the lands of the donors who donated their lands for construction of a district hospital thereon but are now unwilling to spare the same for a community health centre, a new proposal offered by the State respondents, shall be reconveyed to the donors by executing necessary transfer deed after obtaining formally their option/response to the new proposal and this exercise shall be completed by the respondents concerned within a period of six months from the date of passing this order. 10. Subject to the observations made and for the discussions and reasons noted above, this writ petition must fail and accordingly, the same is dismissed leaving the parties to bear their own cost. The interim order of stay shall consequently stand vacated.