Whether a Chief Minister’s promise to its citizens is enforceable? Succinct report in light of Delhi CM’s ‘Promise’ | Highlight on Doctrines of Promissory Estoppel & Legitimate Expectations

Delhi High Court: Prathiba M. Singh, J., while quoting that ‘Promises are meant to be broken’ stated that the law has evolved the doctrines of legitimate expectation and promissory estoppel to ensure that promises made by the Government, its officials and other authorities are not broken and are, in fact, judicially enforceable, subject to certain conditions.

Promise by Chief Minister of Delhi

Petitioners filed the instant petition seeking enforcement of CM of Delhi’s promise.

Petitioners sought the recovery/payment/refund of the monthly rental amount, as per the promise made by the CM.

What was the promise?

CM, Delhi in a press conference on 29-3-2020, amidst the pandemic requested all the landlords to postpone the demand/collection of rent from those tenants who were poor and poverty-stricken.

CM, in the press conference, had made a clear promise that if any tenant is unable to pay the rent due to poverty, the Government would pay his/her rent on their behalf.

“…a solemn assurance was given that the Government would take care of the tenants.”

Analysis, Law and Decision

Bench on perusal of various decisions of the Courts laid down the salient principles of the doctrines of promissory estoppel and legitimate expectation:

Principles from decisions in India:

In India, the two doctrines of promissory estoppel and legitimate expectation have been moulded and expanded further, in order to suit the economic and social conditions prevalent in India. Some of the principles that emerge are:

i)  If a representation is made by the Government, the question is whether it should be allowed to go back on it and whether such an act of resiling from the said assurance would constitute legal fraud.

ii)  It is necessary to promote honesty and good faith in governance. Therefore, if a promise has been made, the Government has a duty to fulfil the same.

iii)  Executive necessity does not constitute an adequate reason to not give effect to a representation.

iv)  If the promise made is clear and unequivocal then the Court can enforce it.

v)  If the promise is acted upon by the promisee, the need to enforce the said promise becomes stronger. There need not be any detriment caused. Mere action on the promise is sufficient for cause of action to arise.

vi)  Under the traditional law of contracts, unless and until, the terms are agreed upon, there would be no contract. However, the doctrine of promissory estoppel is an exception, i.e., no contract is required to enforce a promise made by the Government, if the Government made the same consciously, with an intention for it to be acted upon by the citizen.

vii)  It is important to bridge the gap between law and morality and these two doctrines of promissory estoppel and legitimate expectation are judicial contributions in the said direction.

viii)  Relief based on legitimate expectation or promissory estoppel can be refused only if it is unequitable to hold the Government to its promise.

ix)  If public interest would be prejudiced by enforcing the said promise, only then, relief may be refused. The only exception is overriding public interest or when enforcement is unfair or contrary to public interest. However, the Government would have to disclose the facts that would exempt it from enforcing the said promise and a mere claim in respect of the same would not be sufficient to establish overriding public interest.

x)  A mere ipse dixit would not work, and the Government cannot presume a self-exemption. Only a Court can grant exemption from liability for not adhering to the assurance, provided the Government shows proper justification.

xi)  High ranking officials who may have made representations or given assurances or promises, can, due to the position they hold, bind the Government to their statements.

xii)  It is presumed that once a representation is made by a high- ranking official, the same is within the scope of its authority.

xiii)  If the representation or promise made or is prohibited by law then it cannot be enforced.

xiv)  The relief that may be given by the Court, in the case of an unconscionable departure from a promise is flexible, so as to remedy the injustice caused.

xv)  The mere non-issuance of a notification would not stand in the way of granting relief, if the facts justify the same, as the same would only be a ministerial act.

xvi)  Both these doctrines have to be expansively interpreted, as a recognition of the doctrine of fairness and non-arbitrariness.

xvii)  The legitimate expectation of a citizen ought to be considered and given due weight in decision making. It is a relevant factor for consideration in the decision-making process.

xviii)  Failure to adhere to a promise without adequate justification violates the trust between the Government and the citizen.

xix)  The broad exceptions to not grant relief on the basis of these principles would be – mistake, or if the same is unfair and contrary to public interest.

xx)  The doctrine of legitimate expectation is broader in its scope than the doctrine of promissory estoppel, and it may be based on past practice of the authorities. It need not involve a specific statement and is meant to ensure non-arbitrariness in State action.

xxi)  The doctrine of legitimate expectation and its enforcement is an integral part of non-arbitrariness and non-abuse of power as enshrined in Article 14 of the Constitution.

Now, moving on to analysing the facts, Bench noted that the address by the CM in the press conference has three dimensions:

  • The first dimension is an appeal to the landlords.
  • Second is a promise to landlords that it would pay on behalf of the tenants, if they are unable to due to lack of means and poverty, and
  • thirdly, it has a warning to landlords to not coerce the tenants.

Whether the said statements given by the CM were enforceable by applying either the doctrine of legitimate expectation or promissory estoppel?

Further, Bench stated that the promise made by the CM was under the premise that COVID-19 may be over within two-three months, as the words used were  आश्वासन (assurance or promise) and भुगतान (reimbursement) for the landlords, on behalf of the tenants.

High Court expressed that the principles governing the doctrines of legitimate expectation and promissory estoppel primarily recognize the role of the State of the Governmental authorities vis-à-vis the public.

Adding to the above, High Court stated that the said doctrines are a reflection of the legal recognition being accorded to the trust that citizens repose on promises/assurances/representations which are made by Constitutional functionaries and governmental authorities, especially in times of distress.

The raison d’être for granting recognition to such assurances/promises/representations, is that such functionaries and authorities, who are either elected to public positions or who hold positions of power, are answerable to the people, especially once they undertake or agree to do or not to do a particular thing.

Legal Enforceability

Bench expressed that the question as to whether a promise/assurance/representation results in a legally enforceable right and if so, what would be the relief that a Court can grant, depends upon the factual circumstances of each case and the context in which the said promises/assurance or representations have been made by the Governmental authorities.

Judicial Enforceability

The assurance given or the promise made in the present case was obviously with a view to stop or curb the migration of people from Delhi to the extent possible.

The actual effect of the promise or the assurance was beyond the scope of the present writ petition, inasmuch as there was no clarity as to whether the assurance resulted in tenants staying back.

However, this Court cannot be dismissive of the fact that the Petitioners, who are before the Court, claim to have acted on the promise or the assurance made by the CM. It would not be unreasonable to presume that some tenants and landlords may have altered their positions based upon the assurance given by the CM.

The salient facts and features of the present case were:

(1) Exceptional circumstances of the COVID-19 pandemic.

(2) Extreme distress being faced by migrant labourers and blue-collar workers and employees.

(3) A clear promise/assurance made by the CM.

(4) No positive policy to implement the said promise/assurance given by the GNCTD.

(5) No contrary policy implemented by the government, placed before the Court.

(6) No decision taken to not implement the said promise/assurance that was given by the CM.

(7) The exception of public interest having not been invoked for the non-implementation of the promise/assurance.

What should be the conduct of the Government, in the context when a senior functionary like the CM gives a promise/assurance to the public, which is categorical, unequivocal and unambiguous?

Court opined that such inaction would not be permissible when clearly the making of the promise/assurance by the CM was not in doubt, and was in fact admitted by the GNCTD.

Doctrines of Promissory Estoppel and Legitimate Expectation

The said doctrines are based on the axiom that the people trust the government.

In a democratic setup, persons who hold an elected office, and especially heads of government, heads of State and those holding responsible positions are expected to make responsible assurances/promises to their citizens, especially in times of crisis and distress. On behalf of the citizens, there would obviously be a reasonable expectation, that an assurance or a promise made by a senior Constitutional functionary, not less than the CM himself, would be give effect to.

If the GNCTD had actually come out with a policy either deciding to not implement the said promise or assurance on grounds which are legally sustainable, obviously the Courts cannot interfere. However, even applying the basic Wednesbury principles, the decision making, after the promise was made, ought not to be an arbitrary one.

 Bench held that in the backdrop of the commitment made, it is not the positive decision making which is arbitrary, but the lack of decision making or indecision, which this Court holds to be contrary to law.

Once the CM had made a solemn assurance, there was a duty cast on the GNCTD to take a stand as to whether to enforce the said promise or not, and if so on what grounds or on the basis of what reasons.

In the context of upholding Fundamental Rights, the principles of legitimate expectation have to be accorded a higher pedestal and the burden on the authority concerned not to honour the same, is even higher.

Conclusion

A statement given in a consciously held press conference, in the background of the lockdown announced due to the pandemic and the mass exodus of migrant labourers, cannot be simply overlooked. Proper governance requires the Government to take a decision on the assurance given by the CM, and inaction on the same cannot be the answer.

The expectation of the citizens could be that the Government would implement the promise, however, when this Court is examining this promise and the expectation that comes with it, the question is whether there is any reason as to why the Government did not even take a decision in this regard.

To that extent, insofar as the indecision is concerned, the GNCTD needed to answer the question, which it has failed to answer. 

Elaborating more, Court stated that the said promise was to act as a balm on the wounds of landlords and tenants, who were severely affected as a class of citizens in Delhi. However, the lack of any decision to implement, or a conscious reasoned decision not to implement, has resulted in non decisionem factionem in respect of the legitimate expectation of its citizens. The statements made by persons in power are trusted by the public who repose faith and believe in the same.

Thus, “puffing” which may be permissible in commercial advertising, ought not to be recognisable and permissible in governance.

Whether the statement made by the CM can be completely ignored and can be held to be not binding on the GNCTD?

In Court’s view, the promise/assurance/representation given by the CM clearly amounts to an enforceable promise, the implementation of which ought to be considered by the Government. Good governance requires that promises made to citizens, by those who govern, are not broken, without valid and justifiable reasons.

Lastly, the Court concluded by laying down the following directions:

  1. The GNCTD would, having regard to the statement made by the CM on 29th March, 2020, to landlords and tenants, take a decision as to the implementation of the same within a period of 6 weeks;
  2. The said decision would be taken, bearing in mind the larger interest of the persons to whom the benefits were intended to be extended in the said statement, as also any overriding public interest concerns.
  3. Upon the said decision being taken, the GNCTD would frame a clear policy in this regard.
  4. Upon the said decision being taken, if a Scheme or Policy is announced, the Petitioners’ case be considered under the said Scheme/Policy as per the procedure prescribed therein, if any.

Petition was disposed of in the above terms. [Najma v. GNCTD, 2021 SCC OnLine Del 3775, decided on 22-07-2021]


Advocates before the Court:

For the Petitioner: Gaurav Jain, Advocate

For the Respondent: Rahul Mehra, Sr. Advocate with Mr. Gautam Narayan, ASC, GNCTD and Mr. Adithya Nair, Advocate.

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