JUDGMENT
S.B. Sinha, J.
1. This appeal is directed against a judgment and order dated 9th August, 1996 passed by a learned single Judge of this Court whereby where under the writ petition filed by the 1st respondent herein was allowed.
2. In the aforementioned writ application, the writ petitioner inter alia prayed for the following reliefs :–
“(a) Issue a writ of and/or in the nature of Mandamus commanding the respondents or their servants and/or agents and/or assigns to forth with act in accordance with law and desist from making any demand on your petitioner for refund the sum Rs. 10,37,96,604/- and subsequent Adjustment Rs. 2,66,60,468/- or any other sum paid to your petitioner under IPRS or to adjust the same against further dues of your petitioner under IPRS.
(b) A writ of and/or in the nature of Certiorari be issued commanding the respondents to certify and transmit to this Hon”ble Court all the records culminating in the said letter of repudiation dated 20-1-92 (and the letter dated 19-5-1994, and adjustment note date 29th November, 1994) so that the same may be quashed and conscionable justice be done.”
3. The fact of the matter, shortly stated is as follows :–
The writ petitioner and one Indian Tube Company Ltd. were separate companies. The writ petitioner 1st respondent herein, took over the said company. Whereas the writ petitioner at all material times was and still is the producer of Steel, the Indian Tube Company produces Engineering goods. Admittedly the domestic price for Iron & Steel used to be fixed by Joint Plant Committee (JPC) of which the writ petitioner was also a member. International price of Steel, however, was less than the domestic price.
4. With a view to seeing that because of a higher domestic price export of manufactured good does not suffer, a policy decision was taken by the Union of India with effect from 9-2-81 to provide full protection to exporters of engineering goods from the effect thereof and for the said purpose a scheme was framed known as International Price Reimbursement Scheme (IPRS). The purport and object of the said Scheme was that the exporters of engineering goods would be reimbursed to the extent of the difference in price for incurring addition expenditure for procuring ‘Steel’ from domestic market vis-a-vis international market. The said scheme is contained in Annexure ‘A’ to the writ application.
5. Clause 2,1 of the said Scheme reads thus :–
“For unexecuted engineering export contracts not covered under the price protection schemes of 1978, 1979 and 1981 and for fresh contracts the exporters will be eligible for supply of steel from and after 9-2-1981 at international prices.”
6. The items which were to be covered by the said scheme has been specified therein. The words ‘domestic price’ and ‘international price’ for the purpose of reimbursement under the said scheme have been defined in clauses 2.5 and 2.6 which read thus :–
“2.5. For reimbursement purposes, the ‘domestic price’ for these categories would be the JPC plant price for those categories where JPC price control exists and SAIL price for other items prevailing on the date of exports. The domestic price will be exclusive of taxes like sales tax, control, etc.
2.6. The ‘International Prices’ for various categories will be determined and announced for every month. The International Price determined in respect of a particular month would apply for reimbursement relating to shipments made in the second following month e.g. prices fixed for February ’81 would apply for reimbursement on exports made during April ’81. The procedure for-fixation of ‘International Price’ is being finalised separately and will be intimated.”
7. The procedure for reimbursement has been laid down in Clause 2.7 which is as follows :–
(A) The application for reimbursement will be made to the Regional Offices of the EEPC, with whom the exporter is registered;
(B) The following documents will be submitted by the exporter for claiming the reimbursement of price difference between domestic and International prices of steel;”
8. For the purpose of obtaining the benefit of the said scheme, documents as specified therein were required to be filed which included sale voucher for purchase of steel from main producers in original.
9. Clause 2.8 provided for verification of these documents when an application is received from the exporters by the Regional Office of Engineering Export Promotion Council EEPC). Upon obtaining a certificate, payments used to be made to the exporters. Admittedly the writ petitioner did npt claim any benefit under the said scheme as it had not been selling-any pig iron or steel to its constituted unit viz. M/s. Indian Tube for the purpose of production of engineering goods and consequent export thereof. The said scheme was modified by a letter dated 17th October, 1985 which is contained in Annexure ‘B’ to the writ application.
10. Clause 2.7(8) was amended whereby and whereunder the effect in relation to the procedures for claiming the benefit the said scheme were provided.
11. After the aforementioned amendment was carried into effect, the writ petitioner began claiming benefits under IPRS and the same had been granted from 1985. However, in the year 1990 it was detected by the Union of India that the writ petitioner claimed and received reimbursement under IPRS the difference between JPC price and the International prices of mild steel, without making payment of levies and cess, although it was required to pay cess which was one of the components for determining the JPC prices. According to the Appellant the JPC price included various levies and cesses like :
(a) EGEAF (Engineering Goods Export Assistance Fund).
(b) SDF (Steel Development Fund).
(c) FEF (Freight Equalisation Fund).
(d) JPC Cesses.
12. By a letter issued in November, 1992, EEPC informed the writ petitioner/respondent that as for the purpose of production of engineering goods it did not purchase steel at JPC priqes nor did it pay the levies and/or cesses which were included in JPC of the price difference between the domestic price and the international price in respect of the following items :–
“1. Engineering Goods Export Assistance Found (EGEAF).
2. Steel Development Fund (SDF).
3. Freight Equalisation Fund (EEF) and,
4. JPC Cess.
13. It was stated :
“Therefore, any consumer of steel/pig iron had to pay various levies and/or cesses as indicated above at the time of purchase of steel/pig iron from the main producers at ruling JPC prices.
As main producers of Steel you have manufactured Engineering good for the purpose of Export out of the steel produced by you and as such have not paid the levies and/or cesses as mentioned above.
You have, however, made a claim on the basis of IPRS scheme viz. the price difference between domestic price and the relevant international price although you have not purchased the, steel and thereby not paid the levies and/or cesses etc. as mentioned above. You are, therefore, not entitled to the entire amount of price difference between the domestic price and the international price as you have not paid the levies and/or cesses as mentioned above.
On the basis of the claim made by you, a sum of Rs. 10,37,96,604/- have been paid to you in excess for the period October 1985 to January, 1992 particulars will appear from the statement annexed hereto. Such excess payment has been made by bona fide mistake and the same has been discovered recently.
It is, however, possible that some other engineering products exported by you involved consumption of various mild steel items produced in your own mills and in respect of which, no contribution has been made by you towards levies and/or cess as above but you have received reimbursement under IPRS. It is not possible for us to work out from the documents available with us whether some of these products were exported by using steel produced in your own mills on which, contribution towards levies and/or cess was not made.”
14. E.E.P.C. therefore, asked the writ petitioner to let it know as to why the said sum with interest at the rate of 18% p.a. shall not be refunded by the writ petitioner to it or the Union of India in terms of the IPRS scheme.
15. The writ petitioner by a letter dated 19th January, 1993 admitted that it had not paid the levies but it opined :–
“The point to be noted is that the levies are payable by the main producers when there is a sale and on steel used for captive consumption or for manufacture of down stream products, the JPC guidelines are clear to the effect that the levies are not payable. On steel used for manufacture of tubes even for sale in the domestic market the levies are not paid by us simply because they are not payable by us. The JPC guidelines further stipulated that on export products no levies are payable at all. In other words, there was no question of paying any levies on the steel used for export production (not even for domestic sales and, therefore the question whether we have paid the levies on steel used for manufacture of the exported tubes does not arises at all.”
It was urged :–
“Even if it is contended that the domestic prices announced are actually the JPC price which is inclusive of levies. JPC prices are the maximum that main producer can charge a customer, or in other words, the main producer is free to sell JPC categories of steel at prices below the JPC prices. Insurance of such transactions were quite a number in the past on account of market conditions. We have a unique position of being the manufacturer of steel as well as that the export product using such steel. The JPC guidelines exempt main producers from having levies on steel manufactured by them but used for either captive consumption or for manufacture of down stream products. This principle only proves that the JPC had accepted the unique position of an integrated steel producer who also manufactures other down-stream products. In our opinion this position of ours does not preclude us from deriving the benefits under the IPRS scheme.”
16. The writ petitioner in continuation of the said letter issued another letter being dated 1st February, 1993 contending inter alia :–
“1. The Scheme of International Price Reimbursement from the time of its introduction and as it stands today is applicable universally to all exporters.
2. All these years, when we have contracted prices for our export products, the. benefits that would be available under the IPRS scheme were considered in determining the export prices since the export would not have been viable without the benefits under the scheme.
3. The EEPC did not find any fault with out claims all these years, evidently because you were satisfied that our company had not violated or circumvented any of the provisions of the IPRS.
4. As mentioned earlier, the scheme in universally applicable to all exporters and to any now that TATA STEEL had exported products using steel of their own manufacture and therefore they will not be eligible for the full IPRS benefit will be discriminatory.”
17. The Regional Manager of EEPC, however, by a letter dated 19th May, 1994 stated that it had been advised to adjust the excess IPRS payment of Rs. 10,37,96,604/-made to TISCO against the Company’s pending IPRS claims and recover the balance amount from the writ petitioner. The writ petitioner protested there to and various correspondences appeared to have been passed between the parties.
18. In the aforementioned situation the writ petition was filed. The learned trial Judge by reason of its judgment under appeal, inter alia, held that if the IRPS scheme cannot applicable, the appellant-Union of India or EEPC ought to have asked the respondent to refund the entire amount. The learned trial Judge further held that keeping in view the methodology adopted for making claims as regard the benefit under the said Scheme and the fact that for a number of years the benefits thereunder had been extended to the writ petitioner the Appellant and EEPC are bound by the doctrine of ‘Promissory Estoppel’. In support of the aforementioned decision the learned trial Judge referred to various decisions.
19. Mr. Roy Chowdhury, the learned counsel appearing on behalf of the Appellant and Mr. Sen the teamed counsel appearing on behalf of the EEPC submitted that the decision of the learned trial Judge is erroneous and based on misconception inasmuch as by reason of the amendment made in the Scheme in the year 1985, only the procedure for making a claim had been amended and not the entire scheme. It was submitted that the scheme sought to provide for a succour by reimbursing the exporters of engineering goods difference between the domestic price of the Steel vis-a-vis International price. It was further submitted that as a portion of the levies and cesses had not been borne by TISCO, it could not claim any benefit in relation thereto. Reliance in this connection has been placed on Laker Airways Ltd. v. Department of Trade reported in (1977) 1 QB 643 and Fawcetl Properties Ltd. v. Buckingham County Council reported in 1961 AC 636 at 678.
20. The learned counsel further submitted that the decision of the learned trial Judge to the effect that the stand taken by the Union of India and EEPC attracts the doctrine of ‘Promissory Estoppel’ is also erroneous. It was urged that the decisions taken by the Union of India and EEPC being an administrative decision, the same could have been set aside only in the event a finding had been arrived at by the learned trial Judge that there existed any illegality, irrationality or procedural irregularity in the order impugned in the writ application and in support of the said contention reliance had been placed on Associated Provincial Picture Houses v. Wednesbury Corporation reported in (1947) 2 All ER 680′ Tata Cellular v. Union of India , Delhi Science Forums v. Union of India, and State of Madhya Pradesh v. Vyankatlal, . The learned-counsel submitted that keeping in view the fact that excess payments had been made to TISCO, it was entitled to make refund thereof. Reference in this connection may be made to Suganmal v. State of Madhya Pradesh. . H.M. Kamaluddin Ansari and Co. v. Union of India and M/s. Sant Ram & Co. v. State of Rajasthan .
21. Mr. Anindya Mitra, and Mr. Hirak Mitra the learned Counsels appearing on behalf of the writ petitioner, on the other hand, submitted that before the learned trial Judge as also before this Court the Appellant had raised certain questions which had not been stated in the letters under challenge and, thus, the same cannot be taken into consideration. Reliance in this connection may be made to Moninder Singh Gill v. Chief Election Commissioner, New Delhi, . The learned counsel submits that payment of levies and cesses by the writ petitioner was not a must in this case as (1) Raw materials were used in down-stream product; (2) Raw materials were used for manufacturing export products; and (3) There was no sale of the raw materials by TISCO to Indian Tube.
22. According to the learned counsel the only condition which was necessary to be observed for obtaining the benefit was that the export products must be manufactured with indigenous steel. Mr. Mitra would urge that the object of the amendment the scheme of 17th October, 1985 was made with a view to dispense with the original requirement that raw materials must be obtained from the main producers, the effect whereof was to widen the ambit of IPRS scheme. It has been submitted that the parties understood the purport of the said scheme and on the basis thereof, had acted and, thus, subsequent conduct of the Union of India and the EEPC In trying to realise the amount in question was unwarranted. Reliance in this connection has been placed on Godhra Electricity Co. Ltd. v. State of Gujarat, . According to the learned counsel the other main purpose for implementing the said scheme was to make the raw materials available at international market, not in specie but notionally by way of monetary reimbursement to be assessed on the basis of difference between the said prices. It has been submitted that assessment of the amount of reimbursement, the domestic price, JPC prices or the prices fixed Steel Authority of India Limited, as the case may be, was to be made exclusive of taxes like sales tax, octroi, etc., and thus, for obtaining the benefit under the said scheme the JPC price ceased to be a criteria with effect from 17-10-85. It has been submitted that the components of the JPC price cannot be taken note of nor had any relevance and, thus, the action on the part of the concerned authorities is bad in law. It has been pointed out that the writ petitioner had exported engineering goods.
23. The basic questions in this case are : (1) Does the IPRS postulates payment of a portion of the amount of reimbursement as assessed under Clause 2.5; and (2) Are the respondents authorised by IPRS to disregard or to modify the domestic price as defined and fixed by Clause 2.5 of the scheme? The learned counsel submits that answer to the said question has to be rendered in negative and in that view of the matter the decision taken by the said authorities are liable to be interfered with. It was submitted that the claim for refund being without any authority of law is void. Reliance in this connection has been placed on Khardah Company Ltd. v. Union of India reported in (1983) 14 ELT 2159 (Cal) and Union of India v. Anglo Afghan Agencies reported in AIR 1968 SC 718. The learned counsel further submits that in the instant case the doctrine of estoppel by conduct and acquiescence would be attracted and in support of the said contention reliance has been placed on Arbn. Jupiter Insurance Co. Ltd. v. Calcutta Corpn. , Halsbury’s Laws of England, Vol. XVI, page 1609, Chem Colour Agency v. Chief Controller of Imports & Exports , N. Chellappan v. Secretary, Kerala State Electricity Board , Prasun Roy v. Calcutta Metropolitan Development Authority and Neelakanthan & Bros. v. Superintending Engineer, National Highways, Salem, . It was further submitted that the appellant had no right to set off and in any event, such right to set off could not have been exercised without any agreement. Strong reliance in this connection had been placed on In Re : Gregson Christison v. Bolam reported in 36 Chancery Division, 223.
24. It has not been disputed that JPC price in respect of pig iron and steel had been announced on 9th February, 1981. It is also not disputed that for the purpose of calculation of the JPC price, the levies and cesses referred to hereinbefore, had been taken into consideration and they formed integral part thereof. It also stands admitted that as TISCO is owner of Indian Tube, for procurement of the mater materials, the later (latter) did not have to buy pig iron and steel from the writ petitioner and consequently it did not have to pay the aforementioned levies and cesses.
25. The said scheme dated 23-7-81 was made consequent upon the increase in JPC price of pig iron and steel with effect from 9th February, 1981. By reason of the said Scheme : (a) Full protection had been provided to exporters of engineering goods from the effect of the above mentioned price increase in respect of contract subsisting immediately before that date; and (b) to ensure that from 9-2-81 supplies of steel required by engineering exporters for their export contracts are made available at international prices.
26. With a view to appreciate the effect of the said scheme, it is necessary also to note the following provisions thereof :
“Clause 1.7. The actual supplies of steel
and pig iron against such registered con
tracts will be made at the stockyard price/
plant price prevailing on the date of supply.
The between this price and the corresponding stockyard price prevalent on 8-2-1981
will be reimbursed to the exporter after
exports are effected against eligible export
contracts. Some categories of steel produced
by the main producers have gone out of JPC
price control after 9-2-1981. For these categories the reimbursement would be of the difference between Sail issue price on the
date of issue of the material and the stock
yard price prevalent on 8-2-1981. In the
calculation of the difference, prices exclusive of taxes will be considered.
Clause 1.10(VI). The quantity of indigenous steel claimed to have been used in the quantity shown in the sale voucher of SAID/ Steel plants taking into account the quantity already accounted for as utilised in previous exports under the same sale voucher. For this purpose, the EEPC will have to maintain an exporterwise ledger showing progressive use of iron and steel against each sale vouchers and for each category of iron and steel item. In the ledger showing progressive use of iron and steel, consumption will be noted with reference to the actual usage as reported by the exporter.
Clause 1.10(VII). Claim for reimbursement has been made only on the basis of indigenous steel procured from SAIL/main steel plants and not for steel procured from any other sources;
Clause 2.1 — For unexecuted engineering export contracts not covered under the price protection schemes of 1978, 1979 and 1981 and for fresh contracts the exporters will be eligible for supply of steel from and after 9-2-1981 at international prices.”
27. A bare perusal of the aforementioned provisions, in our opinion, clearly suggest that procurement of pig iron and/or steel have to be made from the Steel Authority of India Ltd. or the main Steel Producers which includes the writ petitioner at stockyard/ plaint price prevailing on the date of supply.
28. Such stockyard price/plant price would mean-JPC price or the domestic price is not disputed. It is also not disputed that JPC price consisted of various levies and cesses. It is further not disputed that as the writ petitioner did not sell pig iron or steel to M/s. Indian tube, the JPC price was not required to paid.
29. It further stands admitted that in terms of the aforementioned scheme dated 23-7-81 the writ petitioner could not and did not claim the benefit of the said scheme. Be reason of an amendment dated 17-10-1985, as noticed hereinbefore, only paragraph 2.7(B) (viii) and paragraph 2.8 were substituted Paragraph 2.7 relates to procedure for reimbursement. It is, therefore, not correct to contend that by such amendment alone, the writ petitioner became eligible to claim reimbursement of the price differences.
30. The stated taken by the appellants and the EEPC in the aforementioned situation cannot, thus, be said to be wholly unreasonable and perverse necessitating interference by this Court. It is true that the Union of India as also the EEPC had accepted the fact that the said scheme was applicable. In this view of the matter it is not necessary for this Court to consider as to whether the said scheme at all became applicable or not only by reason of change of procedure in the matter of making a claim, although such a stand could be taken by the union of India and EEPC; in view of the fact the entire claim of the writ petitioner had not been rejected.
31. It may be true that the manufacturers of steel are entitled to sell steel at a price, lower than the JPC prices as was constructed by the first respondent in its letter dated 19-1-1993, but there cannot be any doubt that they were bound to the levies and cesses.
In our opinion the following formula suggested by Mr. Sen seems to be a great
relevance :–
“(a)
International price = ‘A’
(b)
Domestic/JPC price = ‘B’
(c)
Domestic/JPC price = price of main
producer +
Cesses and
levies.
(d)
Cesses and levies = ‘C’
(e)
Price of main producer = ‘D’
(f)
So B’ = ‘C’ + ‘D’
(g)
IPRS = ‘E’
(h)
Therefore, ‘E’ = ‘B’ — ‘A’
OR
‘E’ = ‘C’ + ‘D’ — ‘A”
32. In the instant case, the writ petitioner had utilised its steel manufactured by it but while using the same it did not have to pay the cesses and levies and, thus, it was not entitled to the costs which would have otherwise become payable i.e. domestic/JPC price which would be inclusive of cesses and levies minus the international price but was only entitled to the domestic price minus the international price or the price of the main producer minus the international price which would come to the amount payable by reason of IPRS minus cesses and levies.
33. The writ petitioner in its letter addressed to the EEPC did not at all dispute the fact that it had not paid cesses and ‘levies. Such cesses and levies became admittedly receivable by the Government. The IPRS scheme clearly suggest that the Government sought to reimburse only such exporters of engineering products who had purchased steel at JPC price which, if paid would have included the aforementioned cesses and levies. To the aforementioned extent, therefore, the writ petitioner unjustly enriched itself.
34. It is now a well settled principles of law that when an unjust enrichment takes place, the doctrine of ‘restitution’ comes into force. In Halsbury’s Law of England, 4th Edn, 434 states : “Common Law. Any civilised system of law is bound to prove remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from another which it is against conscience that he should keep. Such remedies in English Law are generi-cally different from remedies in, contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasi-contract or restitution.”
35. It is now well settled that the doctrine of ‘restitution’ is not confined to Section 144 of the Code of Civil Procedure. The Court can grant such restitution even in exercise of its power under Section 151 thereof.
36. In Jacob Syriac Nidhiri v. Nagendra Prabhu Krishna Prabhu, AIR 1951 Trav Co. 226 (1) a Division Bench consisting of Govinda Pillai and Gangadhara Menon, it was held :–
“It is not necessary for the application of this section that possession of property should have been obtained in execution of the decree which was subsequently reversed. The section would apply even if possession of the property was taken otherwise than by execution provided it was obtained under cover of or in consequence of the decree.”
37. In Kavitha Trehan v. Balsara Hygiene Products Ltd. the Apex Court has held that law of restitution encompasses within its fold all claims founded upon the principle of unjust enrichment.
38. If a Court can grant such restitution, in our opinion, it can also refuse to grant art inequitable relief in exercise of its jurisdiction under Article 226 of the Constitution of India. Further if the writ petitioner has not been substantially prejudiced, the Court can refuse to exercise its jurisdiction. Reference in this connection may be made to in Re : P. P. Raja Reddi . This aspect of the matter has also been considered by a division Bench of this Court in State of West Bengal v. Tanbir Banu reported in 1997 (2) Cal W N 529.
39. It is not correct to Contend that such a plea had not been raised by the EEPC in its letter. In fact, this plea has specifically been raised and the first respondent herein had been asked to show-cause. Only upon receiving the show-cause, a decision had been taken by Union of India and EEPC.
40. In Mahinder Singh Gill (supra) the Apex Court merely held that when statutory authority had passed an order in exercise of its statutory right, such order cannot be supported by raising additional grounds in the affidavit. Such is not the position here. The Union of India & EEPC had not been exercised their statutory power and, they had not acted in a quasi-judicial capacity.
41. In our opinion it is also not correct that the substance of notification as amended on 17-10-1985 was that export products must be manufactured with indigenous materials. The main object and purport of the scheme as has been stated in paragraph 1 thereof which has been noticed hereinbefore. Clauses 2.7 and 2.8 which had not been amended in the year 1985 are merely procedured in nature. The mode and matter in which a claim is to be made and the documents are required to be produced for the purpose of enforcement of the claim, in the considered opinion of this court, although may not be wholly Irrelevant but must be construed in the light of the main provisions. The substance of the scheme has to be given effect to and only because some procedures had been changed in the matter of making the claim for reimbursement, the same would have little or no bearing in absence of change in the object and purport of the scheme.
42. The procedures are changed for grant of benefit of scheme only for the purpose of screening the same but by reason of change of procedure a person does not become entitled to an exemption as of right only because he is not required to show the sale invoices which were required earlier. The change in the procedure thus must subserve the object and purport of the scheme. Although the said scheme is beneficient in nature but the same cannot be extended beyond its scope and effect. See Abbayolla M. Subba Reddy v. Padonamma reported In AIR 1999 Andh Pra 19.
43. In case of this nature the question of conduct of parties is not very material. The claim for refund of payment made under mistake is valid in law. See Ramjijara v. Union of India reported in 1998 Supreme Today 405 (sic), Jodginder Singh v. Director, Consolidation of Holdings Punjab, Chandigarh reported in 1997 (3) ICC 196 (Punj & Har) and Jogendra Narayan Chowdhury v. Union of India, reported in 1996 Lab 1C 759 : (AIR 1996 SC 751).
44. Furthermore, although the IPRS may not contemplate payment of a portion of the reimbursement under Clause 2.5, the very fact that the reimbursement is being claimed only to the extent of unjust enrichment made of the writ petitioner, no illegality can be said to have been committed nor such a decision can be said to be a perverse one within the meaning of the principles of Wednesbury Unreasonableness as stated in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation reported in (1947) 2 All ER 680 requiring interference by this Court.
45. Chambers Twentieth Century Dictionary states the meaning of the word ‘reimburse’ in the following term :–
“To repay; to pay an equivalent to for less or expense.”
46. As the writ petitioner did not incur any expenditure by way of payment of levies and cesses, it cannot be heard to say that It is entitled to reimbursement to that extent. A person who claims exemption must plead and prove the same.
47. It has been accepted by Mr. Mitter the learned Senior Counsel appearing on behalf of the respondent that the doctrine of’Promissory Estoppel’ cannot be said to have any application in the instant case as no promise can be said to have been made in favour of the writ petitioner, pursuant to the aforementioned amendment nor can it be said that it altered its position pursuant thereto.
48. In M/s. Amrapali Films Ltd. v. State, of Bihar reported in 1989 Pat LJR (HC) 199, I, speaking for the Division Bench held :
“The doctrine of promissory estoppel is a branch of law which has developed a lot during the last 40 years. The doctrine of estoppel previously was in the realm of law of evidence.
Doctrine of estoppel in England had all along been permitted to be used only as a shield and not as a sword.
‘However, in India it has been held that the promissory estoppel equitable estoppel confers a right which can be enforced in a Court of law which includes a writ application under Articles 226 and 227 of the Constitution of India, in the High Court.
In Corpus Juris Secundum volume 31 page 283 the law with regard to an estoppel by representation has been stated in following terms :–
“Generally an estoppel by misrepresentation arises when and if a false representation is knowingly or negligently made by the person to another ignorant of the facts with the intention that such other acts thereon and such other does reasonably rely and act thereon in his prejudice. Where a person wilfully makes a representation intended to induce another to act on the faith of it or where, whatever his intention, a reasonable man in the situation of that other would believe that it was meant that he should act on it, and in either case that other does not act on it as true and alters his position, there is an estoppel in pals (sic) to conclude the former from averting against the latter a different state of things as existing at the same time. An estoppel arising out of an express misrepresentation being an equitable estoppel, all of the essential elements of such an estoppel, considered in Sections 66-67 (supra), must be present. Hence, for an estoppel by misrepresentation to arise there must exist a false representation by the person sought to be estopped, made with knowledge, actual or constructive of its falsity, to the person seeking the benefits of the estoppel, with the Intent that such person acts in reliance thereon, and that he actually did reasonably rely and act on such representation to his prejudice.
For estoppel may be predicated on representations not made with fraudulent intent if the person making the same should have known of their falsity, and if of such character as to induce a reasonably prudent man to believe that they were intended to be acted on. If the representation is not such as should induce a prudent person to rely thereon, the person making it will not be estopped thereby.
In some jurisdictions it is essential that the party to whom the representation is made must have in good faith been ignorant of the fact that have had no convenient opportunity of ascertaining the fact. In this connection diligence in using means at command to learn the truth is essential except where a confidential relation exists between the parties.
A representation which is uncertain and vague cannot serve as a basis for estoppel.”
49. In American Jurisprudence 2nd Volume 28, Section 28 at page 630 it has been stated as follows :–
“The proper function of equitable estoppel is the prevention of fraud, actual or constructive and the doctrine should always be so applied as to promote the ends of justice and accomplish that which ought to be done between man and man. Such an estoppel cannot arise against a party except when justice to the rights of others demands it, and when to refuse it would be inequitable. The doctrine of estoppel should be applied cautiously and only when equity clearly requires it to be done. Hence, in determining the application of the doctrine the counter requities of the parties are entitled to due consideration. It is available only in defence of a legal or equitable right or claim made injustice, or wrong of any character. Estoppel is to be applied against wrong doers, not against the victim of a wrong, although estoppel is never employed as a means of inflicting punishment for an unlawful or wrongful act.”
In Halsbury’s Laws of England, Volume 16 at page 1082 ‘Estoppel by Conduct I have been dealt with in para 1809 and in para 1528 at page 1073 ‘representation induced by party complaining have been dealt with. It has been printed out therein that a representation — would be deprived on any effect as an estoppel if the making of it has been contributed to by some by breach of duty on the party of the person seeking to take advantage of it. It has further been mentioned that it is hot necessary that the representation should be false to the knowledge of the party making it, though in the earlier cases it had been held such representation must have been acted upon as true by the party to whom it was made. A representation made to one person and acted on by him cannot be taken advantage of by another to whom it was not made and who has not acted on it.
It is further well known that for attracting the principle of estoppel by representation it must be shown that in acting upon the representation the party to whom it was made should have altered his position.
In ‘Estoppel by Representation’ by Turner, 3rd Edition in Chapter XTV of the said treatise, the learned author has considered in details the development in the branch of law of promissory estoppel and the author further says that the new estoppel does not give rise to a permanent modification of the rights of the parties (inter se). It has further been stated that in general their original rights inter se are modified only for so long as is equitable, and the representor may revert to the status quo, claiming on the original basis in respect of obligations falling due thereafter either by giving sufficient notice, or by restoring the representee to a relative position equivalent to that which he originally occupied. This last may be brought about by act of the representor or may take place by the happening of some event outside the control of the parties, or by efflux of time.”
50. This aspect of the matter has also been considered in Sone Vanaspati Ltd. v. State of Bihar, reported in 1995 (1) Pat LJR 2.
Let us now consider some of this decisions cited at his Bar.
51. In Khardah Company Ltd. v. Union of India reported in (1983) 14 ELT 2159 (Cal) the Court was concerned with absolutely a different fact situation. In that case excess excise duty was not paid through any inadvertence, error or misconstruction but under compulsion due to the assessing authorities demanding the higher rate of duty.
52. In Union of India v. Angle Afghan Agencies reported in AIR 1968 SC 718, the Court was again concerned with the question relating to doctrine of Promissory Estoppel which, as noticed hereinbefore, has no application in the facts and circumstances of this case.
53. In Arbn. Jupiter General Insec. Co. Ltd. v. Corporation of Calcutta , the Court merely held that a person who has taken part in the arbitration proceedings without any demur cannot be permitted to question and fully takes part in the entire arbitration proceedings and then question the award when it goes against him, Such is not the position here. The refund has been claimed in respect of a payment has been made by way of a mistake which is permissible in law.
54. In Halsbury’s Laws of England, Vol. 16, Para 1600, the learned Author was dealing with a case of estoppel arising out of representation. The said paragraph, therefore, does not deal with a situation relating to a payment made under a mistake of fact.
55. In Chemi Colour Agency v. Chief Controller of Imports and Exports , a learned single Judge of this Court was dealing with a matter where goods were imported by a person on the basis of a licence and an irregularity had been committed by him but it transferred the licence. In that situation it was held that the transferee cannot suffer for the fault of his predecessor.
56. In N. Chellappan v. Secretary, Kerala State Electricity Board , the Supreme Court was dealing with a case under Section 30 of the Arbitration Act, 1940. The said decision, therefore, has no application in the instant case.
57. In Prasun Roy v. Calcutta Metropolitan Authority and M/s. Neelakantan & Bros. Construction v. Superintending Engineer, National Highways, Salem , the Apex Court again was dealing with a case under Arbitration Act, 1940 and, thus, the principles laid down therein cannot by any stretch of imagination, be said to have any application in the instant case.
58. In the instant case, it may be noticed that no case of acquiescence has been made out. It is also not correct to contend that a claim of set off was made by reason of an Administrative Act. The Central Government and EEPC only intended to recover a part of the amount which had been paid by mistake to the writ petitioner.
59. In re: Gregson. Christison v. Bolam reported in (1887) 36 Ch D 223, the claim of set off was negatived on the ground that if A. owes B a sum of money and B. owes a sum of money to A, each can bring a separate action, and there can be no set off. The said decision does not apply in the instant case.
60. On the other hand in Laker Airways Ltd. v. Department of Trade reported in 1977 (1) QB 643, the Court was considering a Quia Timet action wherein a subsequent change of policy was to occur held that although plea of estoppel can be raised against the crown but the crown cannot be estopped from exercising its powers, whether given in a statute or by common law, when it is doing so in the proper exercise of its duty to act for the public good.
61. In Fawcett Properties Ltd. v. Buckingham County Council reported in 1961 AC 636 at 678, the House of Lords considered the question as to whether a condition imposed was ultra vires the statute or bye laws.
62. For the foregoing reasons we are of the opinion that the judgment of the learned trial Judge cannot be upheld which is accordingly set aside. The appeal is allowed. But in the facts and circumstances of this case there will be no order as to costs.
S.N. Bhattacharjee, J.
63. I agree.