Case BriefsHigh Courts

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.

Case BriefsCOVID 19High Courts

Delhi High Court: A Division Bench of D.N. Patel, CJ and Prateek Jalan, J., imposed costs on the petitioner while rejecting his petition to grant waiver of rent for all tenants and related reliefs.

In the present petition, following are the reliefs sought:

  1. Waiver of Rent for all the tenants
  2. Constitution of ‘Rent Resolution Commission’,
  3. Constitution of ‘Rent Auxiliary Fund’
  4. Issue directions to the Delhi Police to make amendments to the standard operating procedure where, if their Control Room officer receives any distress call on ‘100 or 112’ from a tenant or a landlord, as the case may be, the officer shall connect the caller, after receiving her consent, to ‘Rent Resolution Commission’
  5. One time amnesty to the landlords or tenants, and
  6. setting aside order dated 17th May, 2020 passed by respondent 1/UOI

Essence of the petition

Petition asks landlords to forgo consideration for their premises already retained by the tenant.

The powers/discretion for waiving of such consideration (rent) vests first with the landlords, who are contractually entitled to the same. This Court will be extremely slow in interfering with the contractual terms which have been entered into by the parties to the contract.

Court declined to entertain the prayer for waiver of the rent and added that,

It ought to be kept in mind that Court cannot do charity at the cost of others. Charity beyond law is an injustice to others.

If the landlord is entitled to receive the rent/consideration in accordance with law as per the contractual agreement entered between the parties concerned, then, the Court cannot, by a general order of the nature sought by the petitioner, waive such amount.

Rent Resolution Commission

In Court’s opinion it sees no reason to constitute ‘Rent Resolution Commission’ and provide for all the mechanism of appointment of the Members thereof, procedure for removal thereof, fixation of salary thereof etc.

Moreover such issues are policy oriented and not for the Court to decided as the same lies in the legislative/executive domain.

Further the Court added that, it cannot pass general directions that would result in waiver of contractual or property rights or establishment of adjudicatory bodies.

Fallacy in the Case

Petitioner seeking an order placing the burden of proof on the landlord with regard to the financial situation of the tenant is the fallacy in the matter.

Further, petitioner was unable to justify as to how a landlord can be asked to provide such evidence which may not be within his/ her knowledge at all. The petitioner has sought to postulate a scheme based upon his own understanding, but without sufficient thought as to the modalities or the consequences of the proposal.

One time amnesty to landlords or tenants

For grant of one time amnesty requires various factors to be considered and the same will be a policy decision to be taken by the Government authorities.

Court is not the maker of the law, and cannot draft a brand new law, except where the law is silent or where some lacuna is to be filled up.

Presumption

It has been presumed that the tenants alone are suffering from financial hardship or from the economic consequences of pandemic and lockdown, however, it ought to be kept in mind that even the landlords can be financially dependent on the rent.

Thus, whenever a landlord expects eviction of the premises on the basis of non-payment of the rent, in such eventuality, the Court has to appreciate the proved facts of that particular case.

Thus in view of the above the Court does not see any reason to interfere with the order dated 17th May, 2020 passed by UOI.

Concluding its analysis for the above matter, Court stated that the present petition does not appears to be a public interest litigation, but it is publicity interest litigation.

Proposals made by the petitioner are ill- conceived, as he does not appear to have thought about their practicability or their effect on other stakeholders.

Cost of Rs 10,000 have been imposed on the petition for abuse of process of the Court and the said amount will be utilized for COVID relief and welfare measures. [Gaurav Jain v. UOI, 2020 SCC OnLine Del 652 , decided on 15-06-2020]