ORDER
The Court
1. The petitioners claim to be the owners of lands bearing Sy. Nos. 76, 84, 85/1 and 86/1, measuring 5 acres 13 guntas, 1 acre 20 guntas, 4 acres 37 guntas and 6 acres 20 guntas respectively situate at Kothanur Village, Uttarahalli Hobli, Bangalore South Taluk. The said lands are stated to be earmarked as part of residential zone both in 1984-Compre-hensive Development Plan and the 1995-Comprehensive Development Plan. The petitioners claim that they have got these lands converted for non-agricultural purposes. The third respondent got issued a preliminary notification bearing No. BDA/SLAD/A6/PR/229/87-88, dated 23-3-1988 published in the Karnataka Gazette on 2-6-1988 for purpose of J.P. Nagar VIII stage layout. The lands of the petitioners also were included in the said notification. The petitioners filed objections to the preliminary notification. The objections raised by the petitioners were not considered and the final notification came to be issued on 19-10-1994 vide Notification No, HUD/292/MNX/93. The petitioners challenged the final notification in W.P. Nos. 1855, 4451 and 3126 of 1995 praying for quashing of the preliminary and final notifications. This Court by its order dated 26-9-1996 quashed the final notification. This Court, however, reserved liberty to the respondents to proceed with the acquisition in
accordance with law and complete the same within one year from the date of the order.
2. In the meanwhile the Government along with the B.D.A. had formulated a scheme for promoting group housing by private individuals. The scheme was announced in the Government Order No. HUD 341 MNR 95, dated 1st June, 1995. The petitioners had submitted their application on 21-7-1995 for formation of the layout in respect of their properties. The original scheme was later on modified as per the Government Order No. HUD 341 MNX 95, dated 17-11-1995. The petitioners pursued the matter with the respondents and requested them on 27th October, 1997 to delete their lands from the acquisition proceedings. The B.D.A. granted formal approval for the scheme on 30th March, 1998 subject to the condition that the sanction of K.E.B. and B.W.S.S.B. are obtained by the petitioners. On receipt of the formal approval, the petitioners approached K.E.B., B.W.S.S.B. and other authorities for obtaining the no objection certificate. The petitioners were hoping that the layout plan produced by them will be approved by the B.D.A. and they would be permitted to form a layout in their lands. But, on 12-7-2000, the petitioners received a communication dated 12-7-2000 from the third respondent to the effect that the B.D.A. has withdrawn the permission earlier granted by it on 30-3-1998. Being aggrieved by the said communication, the petitioners have filed these writ petitions praying for the above reliefs.
None of the respondents have filed statements of objections.
3. I have heard the learned Counsel for both sides.
4. The learned Counsel, Mr. Amar Kumar for the petitioners submitted that the B.D.A. is not justified in cancelling the permission granted by it earlier. The action of the B.D.A. in cancelling the permission is in violation of the principle of ‘promissory estoppel’ which is an equitable doctrine. The principle applies to actions by Government and the Gov-ernment cannot repudiate a promise made by it on the ground that such promise may fetter its executive action. Since, the petitioners in this petition have altered their position relying upon the promise made by the B.D.A., the B.D.A. must be compelled to act on the promise. He submitted that the principle of ‘promissory estoppel’ is no more limited in its application as a ground of defence but it is now available as a cause of action where the affected party would suffer a detriment. As the petitioners herein would be put to detriment in the event of the B.D.A. being allowed to go back on its promise, it is a fit case where interference is called for as B.D.A. is subject to the law and cannot claim any exception as it stands on the same footing as any other individual so far as the obligation of law is concerned.
5. The learned Counsel, Mr. K.V. Narasimhan, for respondents 2 to 4, on the other hand submitted that the permission granted earlier by the B.D.A. would not amount to a promise made by it and, therefore, the principle of ‘promissory estoppel’ would not be applicable to the present case. It is contended that the permission granted was subject to certain conditions and where the conditions were not complied with by the peti-
tioners, they would not be entitled to claim any relief on the ground of ‘promissory estoppel’.
6. Therefore, the question that arises for my consideration is, whether the petitioners would be entitled to the reliefs sought for by them in this petition on the ground that the case is hit by the principle of ‘promissory estoppel’ and that the B.D.A. could not have gone back on the promise made by it in Annexure-G, dated 30-3-1998.
7. Insofar as the prayer relating to issue of a writ of mandamus is concerned, the same cannot be granted by this Court insofar as Sy. No. 76 is concerned because the final notification issued by the B.D.A. covering the said land has been upheld by this Court in W.P. No. 31366 of 1998. The petitioners herein preferred W,A. No. 340 of 1999 against the order upholding the final notification dated 17th September, 1997. That appeal also came to be dismissed. As things stand, that order has become final insofar as Sy. No. 76 is concerned and there cannot be any challenge to the final notification. Therefore, it is not open in law for this Court to grant a writ of mandamus to the respondents regarding the said Sy. No. 76. From the records, it is seen that the B.D.A. has granted permission dated 30th March, 1998 during the currency of the final notification in respect of other survey numbers. Therefore, the course is still open to the petitioners to approach the respondents for denotifica-tion of the lands in question other than Sy. No. 76 if they had not already vested in terms of the provisions of the B.D.A. Act.
8. Therefore, what would remain for my consideration is the prayer seeking quashing of the impugned intimation Annexure-T whereunder the petitioners were informed that the permission previously granted to them stands cancelled,
9. There can be little doubt that Annexure-G, dated 30-3-1998 which is a formal approval of the scheme presented by the petitioners would amount to a promise made by the B.D.A. in favour of the petitioners. That the approval was made subject to the conditions mentioned in Annexure-G would not alter the situation. From the material produced on record, it also becomes clear that the petitioners were making all out efforts to get the no objection certificates from the other statutory bodies as required by Annexure-G. Despite their best efforts they could not succeed in getting the ‘no objection certificate’ from the concerned authorities within the one year period stipulated in Annexure-G. But, however, acting on the promise made by the B.D.A. the petitioners had taken up developmental works on the land by spending huge money. The reason given by the B.D.A. for cancelling the formal permission granted was twofold. The first reason is that the petitioners failed to produce ‘no objection certificate’ from KE.B. and B.W.S.S.B. and that conversion certificate had not been obtained for three acres and odd. It is not disputed that the petitioners had moved the K.E.B. and the B.W.S.S.B. with a request for issuance of no objection certificate. It is also the case of the petitioners that they have been doing everything possible at their end to procure these no objection certificates. In regard to the objection that conversion certificate had not been obtained for
three acres and odd, it is submitted by the petitioners that the same is not required as these lands are included in the Comprehensive Development Plan. They rely on the decision of this Court in Bangalore Development Authority v Vishwa Bharathi House Building Co-operative Society Limited. A Division Bench of this Court dealt with the question whether declaration of Outline Development Plan would render sub-section (2) of Section 14 of the Planning Act unnecessary and held:
“It is not disputed that in pursuance of the declaration of the intention of making of the Outline Development Plan the land in question is meant for residential use. Even otherwise, the land is not being used for agricultural purposes. Sub-section (2) of Section 14 of the Planning Act provides that no change in land use shall be made except with the written permission of the Planning Authority. Since the land is declared to be meant for residential purposes under Section 10 of the Planning Act, the question of seeking permission to change the land use did not arise at all. Since the fact that the land in question falls within the Bangalore Planning Area and the declared use thereof being residential is not disputed the question of seeking permission from the Planning Authority under the Planning Act to change the user of the land does not arise”.
That what was involved in the said case is the outline development plan and in the present case it is the city development plan, would not in any way render the principle inoperative in the present case. That takes care of the condition regarding obtaining of conversion certificate. What remains unfulfilled is only the condition regarding the obtaining of no objection certificates from the other Government agencies.
10. The factual situation is that the permission granted earlier has been cancelled by the impugned letter, Annexure-T not because the petitioners failed to do something that was within their powers which they were required to do. The cancellation of the permission earlier granted is the outcome of the failure on the part of the authorities concerned to either grant or refuse to grant the no objection certificate sought for by the petitioners. The failure on the part of the petitioners to procure the no objection certificates from the concerned authorities would be the only objection that would survive in support of the impugned letter, Annexure-T. The question is whether the B.D.A. is bound by the principle of ‘promissory estoppel’ and the promise made to the petitioners is enforceable against the B.D.A. at the instance of the petitioners despite non-production of the no objection certificates.
11. The question whether the.State is bound and if so, to what extent it is bound by the principle of promissory estoppel, came up for consideration in M/s. Motilal Padampat Sugar Mills Company Limited v State of Uttar Pradesh and Others. The Apex Court after dealing with the issue in some detail laid down the law as under:
“There is no reason or logic or principle why promissory estoppel should also not be available as a cause of action, if necessary to satisfy the equity. It is not necessary, in order to attract the applicability of the doctrine of promissory estoppel, that the promisee, acting in reliance on the promise should suffer any detriment. What is necessary is only that the promisee should have altered his position in reliance on the promise. But if by detriment we mean injustice to the promisee which would result if the promisor were to recede from his promise, then detriment would certainly come in as a necessary ingredient. The detriment in such a case is not some prejudice suffered by the promisee by acting on the promise, but the prejudice which would be caused to the promisee, if the promisor were allowed to go back on the promise. If this is the kind of detriment contemplated, it would necessarily be present in every case of promissory estoppel, because it is on account of such detriment which the promisee would suffer if the promisor were to act differently from his promise, that the Court would consider it inequitable to allow the promisor to go back upon his promise”.
12. The situation which calls for a remedial action by the Court in compelling the promisor to do what was promised by it, as pointed out by the Apex Court in the above ruling, is present in this case in all its entirety. The promise was made by the B.D.A. as evidenced by Annexure-G, the petitioners acted upon that promise and altered their position by spending money and resources. The promise was made by the B.D.A. knowing or intending that it would be acted upon by the promisee. In such a situation, the promisor would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promisee. That the Government is no exception to this rule of law as fully and completely as any other, is clearly brought out in the said decision by the Apex Court, as follows:
“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 upon by the promisee and the promisee would alter his position relying upon it”.
All the ingredients that make the applicability of the principle of ‘promissory estoppel’ as a cause of action in order to satisfy the equity are all present in this case. The circumstances under which the petitioners could not produce the no objection certificates have not been appraised of properly by the B.D.A. Its subsequent action can be supported only on the ground of change of policy which does not provide sufficient reason
to exonerate the liability of the Government to act on its promise. It cannot also be said that the subsequent withdrawal of the permission was accentuated by any overriding public interest. The only public interest involved was to provide sites to the siteless persons in the city which interest could also have been served by sanctioning the scheme in terms of Annexure-G in favour of the petitioners. The sanctioning of the scheme would still have left 30% of the lands involved at the disposal of the B.D.A. which could have been utilised by it for meeting the overriding public necessity that too free of cost. Sanctioning of the scheme, therefore, would not only have resulted in the B.D.A. acting upon the promise made to the petitioner and thereby discharging its obligation but it would have also served the purpose for which the lands are to be acquired by the B.D.A. Thus, I find that the impugned intimation Annexure-T is hit by the principle of ‘promissory estoppel’ and is liable to be quashed.
13. Mr. Amarkumar, learned Counsel for the petitioners, also submitted that the impugned intimation Annexure-T is also liable to be quashed on the ground of legitimate expectation. Legitimate expectation does not amount to a right in the conventional sense but it is confined to the right to a fair hearing before a decision is revoked or a promise or undertaking is withdrawn. The question is whether this theory could be applied to the facts of the present case to atleast direct the B.D.A. to act fair in following upon the promise by it. There can be no doubt that the formal approval aroused legitimate expectation in the petitioners, so much so, that even in the absence of a legitimate right, they could plead with the Court to exercise its power so as to guarantee the enforcement of a legitimate expectation. The ultimate relief of a writ of mandamus as sought for by the petitioner cannot be issued in the present case insofar as Sy. No. 76 is concerned because the final notification has been upheld by this Court in another proceeding. But the Court can still direct the B.D.A. to give the petitioners the right of hearing which is a right in equity insofar as other survey numbers are concerned. The ‘expectation’ of the petitioners is a ‘legitimate’ one springing from the scheme brought out by the B.D.A. in consultation with the Government. All the conditions precedent to the grant of the final approval, barring the no objection certificates, had been satisfied by the petitioners. In all fairness to the petitioner, the B.D.A. should have heard them before it recalled the formal approval granted by it earlier. The unilateral decision taken by the B.D.A. in this regard is hit by the principle of promissory estoppel and the theory of legitimate expectation. Thus, this Court need not dissuade itself from directing the B.D.A. to consider the claim of the petitioners afresh in the light of the observations made in this order.
14. There is another factor which induces this Court to grant them the limited relief as aforesaid. The petitioners are still in possession of the lands. The formal approval was given by the B.D.A. to the scheme brought out by the petitioners even though the preliminary notification had been issued regarding the lands in question. Section 36 of the B.D.A. Act, 1976 deals with the acquisition of land otherwise than by agreement. It reads:
“36. Provisions applicable to the question of land otherwise than by agreement.–(1) The acquisition of land under this Act otherwise than by agreement within or without the Bangalore Metropolitan Area shall be regulated by the provisions, so far as they are applicable, of the Land Acquisition Act, 1894.
(2) For the purpose of sub-section (2) of Section 50 of the Land Acquisition Act, 1894, the authority shall be deemed to be the Local Authority concerned.
(3) After the land vests in the Government under Section 16 of the Land Acquisition Act, 1894, the Deputy Commissioner shall, upon payment of the cost of the acquisition, and upon the authority agreeing to pay any further costs which may be incurred on account of the acquisition, transfer the land to the authority, and the land shall thereupon vest in the authority”.
Thus, the land would vest in B.D.A. only after the payment of the cost of the acquisition and upon the authority agreeing to pay any further costs which may be incurred on account of the acquisition. Therefore, it is not still too late in the day for the B.D.A. to reconsider the matter after giving the opportunity of being heard to the petitioners.
14-A. In Mohinder Singh Gill v Chief Election Commissioner, the Constitutional Bench of the Apex Court had occasion to deal with the principles of natural justice and its limitations. In so dealing, the Apex
Court held:
“Once we understand the soul of the rule as fairplay in action and it is so we must hold that it extends to both the fields. After all, administrative power in a democratic set-up is not allergic to fairness in action and discretionary executive justice cannot degenerate into unilateral injustice. Nor is there ground to be frightened of delay, inconvenience and expense, if natural justice gains access. For fairness itself is a flexible, pragmatic and relative concept, not a rigid, ritualistic or sophisticated abstraction. It is not a bull in a china shop, nor a bee in one’s bonnet. Its essence is good conscience in a given situation: nothing more but nothing less. The ‘exceptions’ to the rules of natural justice are a misnomer or rather are but a shorthand form of expressing the idea that in those exclusionary cases nothing unfair can be inferred by not affording opportunity to present or meet a case. Textbook excerpts and ratios from rulings can be heaped, but they all converge to the same point that audi alteram partem is the justice of the law, without, of course, making law lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation”.
(emphasis supplied)
In the present case Annexure-T has been issued unilaterally without hearing the petitioner on the issue of withdrawing of the formal permis-
sion granted by the B.D.A. This unilateral decision by the B.D.A. in the present case cannot be defended on grounds of necessity or emergency. The matter, therefore, deserves being remitted to the B.D.A. for reconsidering the matter.
15. In the result, for the reasons stated above, the writ petition is allowed and the impugned intimation Annexure-T is quashed. The B.D.A. is directed to reconsider the matter afresh and pass fresh orders within a reasonable time after hearing the petitioners.