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TMI Blog1990 (8) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... ld R.R. No. 941 known as 'Frere Land Estate" in which room No. 2 admeasuring 28.27 sq. meters was leased out to Vasantkumar Radhakisan Vora, for short 'Vasantkumar'. The appellants are his legal representatives. He was served with a notice under Sec. 106 read with s. 111(h) of the Transfer of Property Act terminating the tenancy in terms of the covenants of lease and was asked to deliver possession of the demised property giving one month's time from 22nd January, 1975. It was served on Vasantkumar on January 28, 1975. The notice of termination thereby became effective from 28th February, 1975. In the meanwhile Major Port Trust Act, 1963 (Act No. 38 of 1963), for short the "Central Act", was made applicable to the Bombay Port Trust by operation of s. 133 (2A) with effect from February 1, 1975. After the expiry of one month, ejectment application was filed under s. 41 of the Bombay Presidency Small Cause Courts Act (Act 15 of 1882) as amended under 1963 Maharashtra Amendment Act, against Vasantkumar and another for delivery of possession. After 1976 Amendment Act 19 of 1976 came into force suits were laid against three other tenants. It was pleaded by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder, i.e. February 28, 1975, by which date the State Act became inoperative as from February 1, 1975 the Central Act came into force. The respondent under the Central Act acquired, by statutory operation, the immovable property including the demised one in Frere Land Estate and thereby became a new landlord. Termination of tenancy is an act intervivos by operation of Sec. 106 read with Sec. III(h) of T.P. Act. Under Sec. 109 thereof, the respondent, not being a living person, is not entitled to the benefit of the quit notice as its operation is not saved by Sec. 2(d) and Sec. 5 thereof. The suit, thereby, is not maintainable admittedly no quit notice determining the tenancy was issued after February 1, 1975. The edifice of the argument was built up on shifting sand and when it was subjected to close scrutiny it crumbled down traceless. Let us first deal with the arguments on the foot of the provisions of T.P. Act. Section 2(d) of the Transfer of Property Act, 1882 provides saving of the previous operation of law. It states that: " nothing herein contained shall be deemed to affect save as provided by Sec. 57 and Chapter IV of this Act, any transfer by operation of law or by, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expiry thereof the lease becomes inoperative and the lessor acquires right to have the tenant ejected. When he fails to deliver vacant possession, the lessor would be entitled to have the tenant ejected and taken possession in due process of law. The successor in interest whether acquires these rights and the rights acquired by lessor would enure for his benefit is the crucial question. 6. In Halsbury's Laws of England, 4th Edition, Vol. 27, paragraph 193 discussed the right accrued to the transferee of the benefit of the notice to quit issued by the predecessor in title thus: "The notice when once given enures for the benefit of the successors in title of the landlord or tenant giving it." Hill and Redman in "Law of Landlord and Tenant", 17th Edition, Vol. I, at page 488, paragraph 405 have stated to the similar fact thus: "The notice when once given enures for the benefit of the successor in title of the landlord or tenant giving it." In Mulla's commentary on the Transfer of Property Act, 6th Edition, at page 676 it is also stated thus: "Notice enures for the benefit of the successor in title of the lessor or lessee giving it.&qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case. In Hitkarini Sabha v. The Corporation of City of Jabalpur & Anr., [1973] 1 SCR 493 the lease was granted by the Administrator without authority under the Statute. Therefore, the lease was held to be void. The notice as required under T.P. Act was held to be mandatory, but was not done. Therefore the lease was subsisting and thereby as his land was acquired the tenant was entitled to compensation pro rata under Section 11 of the Land Acquisition Act. We are at a loss to understand, how the ratio thereunder will be of any assistance to the appellant. In Lower v. Sorreli, [ 1963] 1 Queen's Bench Division 959 the question therein was whether the notice to quit was a valid notice. Admittedly, second notice was given before the expiry of the first notice. It was held that when such notice were issued withdrawing the first notice by issuance of the second notice, a new tenancy has been created for the tenant to remain in possession until the expiry of the later notice on September 29, 1961, to which the tenancy sections 2(1) and 23(1) of the Agricultural Holdings Act, 1948 would apply. Accordingly it was held by the Court of Appeal that there was no valid notice to quit. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rooms and all contracts in relation thereto includ- ing the lease and the right to ejectment pursuant to quit notice stood transferred to the respondent. Sub-section 2(A) of Sec. 133 'Repeal' of the Major Port Trusts Act, 1963 states that on the application of the Central Act to the Port of Bombay, except the provisions thereof relating to municipal assessment of the properties of the port of Bombay and matters connected therewith, shall cease to have force in relation to that port. But sub clause (c) of sub-section (2D) of Sec. 133 provides that notwithstanding anything contained in sub-section (2A) (2B) and (2C) anything done or any action taken or purported to have been done or taken including notice issued shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken on the corresponding provisions of this Act. By operation of Sec. 29(1)(a) & (b)read with Sec. 133(2A) the quit notice concerning the vested immovable property i.e. the demised rooms vested in the respondent shall be deemed to have been done or taken under Sec. 29(1) and Sec. 133(2A)(C) of the Central Act. There is no inconsistency between the Central and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd they have no application to bilateral acts under Central Act and the notice under Sec. 106 of T.P. Act is not the one either under the Central or the State Act and that the notice issued is not saved, is devoid of force. The Board of Trustees under the State Act have merely changed their hats and stand transposed to be functionaries under the Central Act. The functionaries under both the Acts are the same. The notice was issued by the Asst. Estate Manager by virtue of his official function as power of attorney agent on behalf of the respondent. The Board of Trustees have the right to terminate the lease under Sec. 26 of the State Act and those rights stood transferred and vested under Sec. 29(1) of the Central Act. Therefore, the termination of tenancy and laying the action for ejectment are integrally connected with their official capacity. There is a reasonable connection between the impugned acts and official duty. Thereby, they are the acts done under the Central Act. In Commissioner for the Court of Calcutta v. Abdul Rahim Osman & Co., Sec. 142 of the Calcutta Port Act came up for interpretation. Thereunder it was contended that short delivery of the goods was an omission a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfer of Property Act. Thereby the quit notice is valid. The suit laid, pursuant thereto, is valid and legal. Accordingly order of ejectment passed by the Small Cause Court is perfectly legal and unassailable. 11. The next contention of Mr. Tunara is that the respondents are estopped from ejecting the appellant and other tenants who are similarly situated on the principle of promissory estoppel. His contention is rounded upon the fact that the Estate Manager of the respondent in his letter dated April 3, 1972 directed the tenant to deposit ₹ 11,000 and odd for grant of tenancy after reconstruction of the flats therein. The tenants placing reliance thereon have deposited the amount demanded from them and acted upon the promise to their detriment. The respondent now shall be declared to be estopped from ejecting them from the demised respective portions leased out to them. The learned Solicitor General contended that the Estate Manager has no author- ity to give a promise. Even assuming that he has such a power, it is conditional one, namely, approval by the Board. The Board in its meeting resolved to reject the claim and on reconstruction decided to allot to its own employees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cturing Co. Ltd. v. Ulhasnagar Municipal Council, [1970] 3 SCR 854 Shah, J. again extended this doctrine of promissory estoppel against public authorities thus: "This court refused to make distinction between a private individual and a public body so far as the doctrine of promissory estoppel is concerned." In Motilal Padampat Sugar Mills v. State of Uttar Pradesh, [1979] 2 SCR 641 Bhagwati, J., as he then was, applied the doctrine of promissory estoppel to the executive action of the State Government and also denied to the State of the doctrine of executive necessity as a valid defence. It was held that in are public governed by rule of law, no-one high or low is above the law. Everyone is subject to the law as fully and completely as any other and the Government is no exception. The Govt. cannot claim immunity from the doctrine of promissory estopped. Equity will, in a given case where justice and fairness demands, present a person from exercising on strict legal rights even where they arise not in contract, but on his own title deed or in statute. It' is not necessary that there should be some pre-existing contractual relationship between the parties. The partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts claim to be exempt from liability and it would be for the Court to decide whether those events are such as to render it equitable and to enforce the liability against the Govt. Therefore, we are holding that the doctrine of promissory estoppel would equally apply to a private individual as well as a public body like a Municipal Council. It was held that it cannot be applied in the teeth of an obligation or liability imposed by law. It cannot be invoked to compel the Govt. to do an act prohibited by law. There may be no promissory estoppel against exercise of legislative functions. Legislature can never be precluded from exercise of its legislative functions by resorting to doctrine of promissory estoppel. The plea of executive necessity, though was rejected, its rigour was mellowed down to the above extent indicated above. The doctrine of promissory estoppel, though doubted in Jeer Ram v. State of Haryana, [1980] 3 SCR 689 was affirmed and reiterated by a Bench of three Judges in Union of India v. Godfrey Philips India Ltd., [1985] Supp. 3 SCR 123 at 144 Bhagwati, the Chief Justice, while; reiterating the law laid down in Motilal 'P' Sugar Mills' case (supra) made it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conduct or representation by an officer of the State or public authority when it was obtained play fraud on the constitution and the enforcement would defeat or tend to defeat the constitutional goals. For instance a fight to reservation either under Art. 15(4) or 16(4) in favour of the Scheduled Castes, Scheduled Tribes or backward classes was made with a view to ameliorate their status socially, economically and educationally so as to assimilate those sections into the main stream of the society. The persons who do not belong to those classes, but produce a certificate to mask their social status and secure an appointment to an office or post under the State or public employment or admission into an educational institution maintained by the State or receiving aid from the State, on later investigation, though belated, was found that the certificate produced was false and the candidate was dis- missed from the post or office or debarred or sent out from the institution or from the balance course of the study, the plea of promissory estoppel would always be found favour with the courts and being easily extended in favour of the candidate or party that played fraud on the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts are that ship repairers in a naval vessel carried out certain work in contravention of para 1 of the Restriction of Repairs of Ships Order, 1940, the Admiralty acting under regulation 55 of the Defence (General) Regulations, 1939 directed that repairs or alteration of ships would not be carried out except under the authority of a licence granted by the Admiralty. The defence was that work was carried out with the oral permission of the licencing authority officer of the Admiralty. In the Court of Appeal Lord Denning, laid the rule of promissory estoppel that whenever Government Officers in the dealings with the subject, take on themselves to assume authority in a matter with which he is concerned the subject is under entitlement to rely on their having the authority which they assume. He does not know and cannot be expected to know the limits of their authority and he ought not to suffer if they exceed it. On further appeal the House of Lords while reversing the view, Lord Simonds stated thus: "I know of no such principle in our law nor was any authority for it cited. The illegality of an act is the same whether or not the actor has been misled by an assumption of auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ires acts in this way cannot be sound policy, being a negation of the fundamental cannons of administrative law." Thus we have no hesitation to hold that before making the public authority responsible for acts of its subordinate, it must be established that the subordinate officer did in fact make the representation and as a fact. is competent to make a binding promise on behalf of the public authority or the Government, ultra vires acts do not bind the authority and insistence to abide by the said ultra vires promise would amount to putting premium and legitimacy to ultra vires acts of subordinate, officers. It is seen from the record that the Estate Manager is merely an intermediary to collect the material between the respondent Port Trust and its tenants and to place the material for consideration .to the Board. Thereby the Estate Manager is not clothed with any authority much less even ostensible authority to create a promise so as to bind the respondent, that the respondent would allot the rooms on reconstruction to the tenants. The promise by him is an ultra vires act, though conditional and, therefore, it does not bind the respondent. Though the executive necessity has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Bench of the High Court same point was raised in the grounds of appeal in this court. Though the appeal was argued for three days, Mr. Tunara did not argue this point across the Bar, nor we had the advantage of hearing the learned Solicitor General. Even in a written brief running into 44 pages submitted by the counsel, he did not deal with this point. The counsel, after arguing the two points dealt with earlier, has devoted his time on the question of jurisdiction of the trial court under Sec. 41, despite our repeatedly re- minding him that this point was neither raised, nor argued in the High Court, At the end he stated that he had elaborately argued the point of vires before the Single Judge and the Division Bench and except repetition of the same once over, he could do no better by-further arguing here. Therefore, this Court could go through the judgment and deal with the point. We deprecate this practice. When a constitutional question has been raised and does arise for consideration, unless there is a full-dressed argument addressed by either side before this court no satisfactory resolution could be made. Mere para- phrasing the judgment of the High Court in particular wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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