CENTURY SPINNING & MANUFACTURING COMPANY LTD. AND ANR. versus THE ULHASNAGAR MUNICIPAL COUNCIL AND ANR.

CENTURY SPINNING & MANUFACTURING COMPANY LTD_. AND ANR.

THE ULHASNAGAR MlJl'UCIPAL COUNCIL AND ANR.

February 27, 1970

-[J. C. SHAH, K. S. HEGDE AND A. .N. GROVER, JJ.J

Constitution of lndla, Art. 226-High Court's Powers---Dismissal in limine-Questions of fact-Representations by Public Body___..:.Jf enforceable ex-eontractu by person who acts upon the rewesentations.

The appellants-companies set up their factories within an "Induttrial Area··, No octroi duty \Vas payable in respect of goods imported ~by the appellants into the Industrial Area· for use in the manufacture of its pro-ducts. The State of Maharashtra constituted :i. Municipality for certain villages includin.g t:1e Industrial Area. On representations n1ade by the appellants and other manufacturers, the State proclaimed the exclusion of the Industrial Area from the Municipal Jurisdiction. The Municipality made representations to the Sta:c requesting that the proclamation, be v."ithdra\\'n. agreeing to exempt the factories in the Industrial Area from payn1ent of octroi for seven years from the date of the levy. The State acceedcd to the rc,:itK'St of the ~Iunicipality. The appellants claimed to expand their nclivities relying upon the ~iunicipulity':; assurance an<l un!1ertaking. The ~1aharashtra Iv!unicipalities Act \Vas enacted and the respondent-l\.[1]Iunicipality took over the administration of the former munici-pality as its suc~sor. Thereafter. the re.s'pondent-Municipalitv sought to levy .Jctroi duty on the nppcllant amounting to about Rs. 15 lakhs per annum. The appellants filed petition under Art. 226 of the Constitution to restrain the respondent-l\1unicipality fron1 enforcing the levy o'f the Octroi. The High Court dismissed the petition in liniine. In appeal by speci:il leaYe.

HE(D : The case must be remanded to the High Court for being re-adn1ittcd to its file and dealt \Vith and disposed of according to law.

The High Court n1ay. in exercise of its discretion. decline to exercise its exrra-ordinar\· '. 1risdiction under Art. 226 of the Constitution. But the discretion is judici1l: if the petitioner makes claim 'vhich is frivolous, vexatious. or pri11u1 fncie unjust or \Vhich may not appropriately be true in petition inVoking extraordinary jurisdiction. the Court may decline to entertain the petitiun. But party claiming to be aggrieved by the action of public bod~· o:- authority on the plea that the action is unlay.·ful. high-handed. arbitrary or unjltst is entitled to hearing of its petition on the merits. Apparentlv the petition filed by the Company did not raise any complicated questions of fuct fo·r deterrnination, and the claim could nOt be charnct~rised ns frivolous. vexatious or unjust. The High Court has given no reason for dismissing the petition in lilnine, and on consideration o'[ the averments in the petition and the materials placed before the Court the appellants \1:ere entitled to have its grievance aq:ainst the action of the Municipality. which was prinuz facie unjust. tried. Merely because question of fact is raised, the High Court will not be justified in requiring the party to seek relief by the somewhat lengthy, dilatory and expensive process by civit suit against public body. The questions of fact raised by the petition in this case are elementary. (858 CF]

Public bodies are as much bound as private individuals" to .carry out representations or facts and promises made by them, ret}ribg on which

CENTURY SPINNING CO· v. MUNICIPAL COUNCIL (Shah, J.) 855

other persons have altered their position to their prejudice. The obligation arising against an individual out of his representation amounting to pro-mise may be enforced ex-contractu by person who acts upon the pro .. mises when the la\\· requires that contract enforceable at law again'St publk: body shall be in certain forn1 or be executed in the manner pres-cribed by statute and if the contract be not in that form the obligation may still be enforced against the body in appropriate cases, in equity, [859 DJ

If our nascent democracy is to thrive. different standards of conduct for the people and the public bodies cannot ordinarily be permitted. public body is not exempt from liability to carry out !ts obligation arising out of representations made by it relying upon which citizen has altered his position to his prej~dice. [860 DJ

There is undoubtedly clear distinction between representation of an existing fact and rep·resentation that something \\rill be done in future. The former may, if it amounts to -representation as to some fact alleged at the time to be actually in existence, raise an estoppel if another person alters his position relying upon that· representation. representation that something will be done in- 'future may result in contract,. if another per-son to whom it is addressed acts upon it. representation that something will be done in future is not representation that it is true when made. But between representation of fact which is untrue and representa-tion express or implied-to do something in future, there is no clear anti· the'ii'i. representation that something \Vill be done in future may involve an existing intention to act in future in the manner represented. If the repr~sentation is acted upon by another person it may, unless 'the statute govl.!rning the person making the representation provides otherwise, result in an agreement enforceable at la\v; i'f the statute requires that the agree-ment shall be in certain form, no contract may result from the represen-E tation and acting ihcreupon but the law is not powerless to raise in appropriate cases an equity against him to compel performance of the obligation arising out of his representation. [858 H·859 Cl

Union of /lldia & Ors. v. Mis. Indo-Afg/w11 Agencies Ltd., [1968J 2 S.C.I>.. 366: Robertson v. :Wini.Her of Pen.\·ions, [1949J I K.B. 217; f'al· mouth Board Construction Co. Ltd. v. Howell, [1950J I All. E.R. 538, referred to.

CIVIL APPELLATE JURISDICTION: and 2131 of 1969.

Civil Appeal Nos. 2130

Appeals by special leave from the judgment and order dated June 16, 19. 1969 of the Bombay High Court in Special Civil Application No. 41 of 1969 and S.C.A. No. 1774 of 1969.

C. K. Daphtary, Suresh A. Shroff, P. C. Bhartari and 0. C. Mathur, for the appellants (in both the appeals).

H. R. Gokhale, N. H. Gurshani and N. N. Keswani, for res-

pondent No. 1 (in both the appeals).

B. D. Sharma and S. P. Nayar, for respondent No. 2 (in both the appeals).

The , .;Jgme!Il.t of the Court was delivered by

Civil Appeal No. 2130 of 1967

Shah, J. The High Court of Bombay dismissed in limine peti-tion filed by the Century Spinning & Manufacturing Co. Ltd. here-inafter called 'the Company'-for the issue of writ restraining the respondent Municipality from enforcing the provisions of the Maha-rashtra M:micipalities Act 40 of 1965 relathig tu the k1y, assess-ment, collection recovery of octroi and in particular s. l 05 and ss. 136 to 144 thereof, and from enforcing the Maharashtra Muni-cipalities (Octroi) Rules, 1967, and from actiiig upon resolutions passed by ilie Municipal Council dated September 9, 1968 and September 13, 1968, and from levying, assessing, collecting, reco-vering or taking any other step uinder the Act, rules or the resolu-tions, and for ·an order restrainin~ the Municipality of Ulhasnagar from levying, assessing:, collecting any octroi on the goods imported by the Company within the limits of the Municipal Couincil for period of 7 years from the date of its first imposition. With special leave, the Company has appealed against the order rejecting the petitiOI!..

The Company was incorporated under the Indian Companies

Act, 1913. It set up its factory in 1956, within the limits of village Shahad, Ta!uka Kalyan, oin site purchased trom the State of Bombay, and within an area known as the 'Industrial Area'. No octroi duty was then payable in respect of goods imported by the Company into the Industrial Area for use in the manufacture of its products. On October 30, 1959, the Government of Bombay issued notification announcing its intention to constitute Muni-cipality for certain villages, including the Industrial Area. The Company and other manufacturers who had set up their plants and factories objected to the proposed constitution of the Municipal Area. On September 20, 1960, the State of Maharashtra (succes-sor to the State of Bombay) published notification constituting with effect from April 1, 1960 the Mu,nicipality including the area in which the Industrial Area was included. Representations were then made by the Company and other manufacturers for excluding the Industrial Area from the Ulhasnagar Municipal District Area. On April 27, 1962 the Government of Maharashtra (the new State of Maharashtra having bce.n constituted under the Bombay Re-organization Act, 1960) proclaimed that the Industrial Area be excluded from the Municipal jurisdiction. The District Munici-pality then made representation to the Uovernment of Maharash-tra that the proclamation dated April 27, 1962, be withdrawn by the Government. The Municipality agreed to exempt the existing factories viz., the Company and other manufacturers whose facto-ries were then existing in the Industrial Area from payment of octroi for period of seven years from the date of levy of octroi and for exempting new industrial units from payment of octroi for

CENTUllY SPINNING CO. v. MUNICIPAL COUNCIL (Shah,/,) 857

similar period from the date of establishmll!lt. The Government of Mahaiashtra acceded to the request of the Municipalit)' to retain the Industrial Area within the local limits of the Municipality.

On August 24, 1963, the District Municipality passed rcsolu· tion to implement the agreement. It was resolvec! that the Munici-B pality "agrees to give concession to the existing factories by ex-empting them from the payment of octroi for period of 7 years from the date of levy of octroi tax and by exempting new factories from the payment of the octroi tax for period of 7 years from the date of their establishment as recommended by the Government of Maharashtra".

On October 31, 1963,. the Government of Maharashtra issued notification withdrawing the proclamation dated April 27, 1962, and the Industrial Area became pan of. the. Ulhasnagar Municipal District. Relying upon the assurance and undertakiag given by the Municipality the Company claims that it had expanded its activities and commenced manufacturing new products by setting up addi· tional plant which it would not have done "but for the c~ons given, assurances arid representations made and agreement arrived at on May 21, 1963".

On September 10, 1965, the Legislature of the State of Maha-rashtra enacted the Maharashtra Municipalities Act which repealed the Bombay District Municipal Act 3 of 1901. The notification declaring the area of the former District Municipality of Ulliasnagar into the Ulhasnagar Municipality became effective as from June 15, 1966. The Ulhasnagar Municipality took over as successor to the Ulhasnagar Distri~t Municipality, the assets and the affairs of that body. On September 9, 1968 the Ulhasnagar Municipality resolved "to levy minimum rates of octroi duty as shown.in columns 4 and 6 on all items shown in Sch. I to the Rules", and by resolu-tion dated September 13, 1968, the Municipality 'adopted with effect from January 1, 1969, the rates for the imposition of octroi duty on the goods imported for use, sale and consumption within the Municipal Council limits.

At special meeting held on December 24, 1968, the Munici-G pal Council considered the letters writteiti by the Government of Maharashtra dated November 22, 1968 and December 10, 1968, drawing the attention of the Municipality to the circumstances in which the Industrial Area was included and retained in the local limits of the Ulhasnagar District Municipali!I and conti,n'ued to remain within the local limits of the Municipality, and "advised the Municipality to pass resolµtion confirming such exemption and honour the commitments of its predecessor." The Municipality ignored·the advice arid resolved that the Government of Maharash-tra be informed that the Municipality would consider afresh on L10Sup.Cl(NPJ70-10

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merits-;any representation of tax-payer fo~'exemption from pay-ment 'of octroi, ·and if any such representation was made by the factories situate in the Industrial Area, the Council.would consider the same and truce such action as it ·would deem fit.:·. Thereafter the Municipality sought to levy octroi duty and to recover from the Company octroi duty amounting to approximately Rs. 15 lakhs per annum. ..

The Company moved petition before the High Coun of Born-. bay under Art. 226 of the Constituti<~n for the writs set out earlier seeking to restrain the Ulhasnagar Municipality from enforcing the octroi Rules. ·

The High Court may; in exercise of its discretion, decline to exercise its extra-ordinary jurisdiction under Art. 226 of the Consti-Jution; · But the discretion is judicial : if the petition makes claim · which is frivolous, vexatious, or prima facie unjust, or may not appropriately be tried in petition invoking extra-ordinary jurisdic--tion, the Coun may decline to entertain the petitiop: But party . claiming to be aggrieved by the action ofa public body or authority on the plea that the action is unlawful, high-handed, arbitrary or unjust, is entitled to hearing of its petition on the merits. Appa~, rently the petition filed by the Company did not raise 31tiy compli-cated questions of fact for deterinination, ·and the claim could not ·be characterised as (rivolous, vexatious or unjust. .The High Court has given no reasons for dismissing the petition in Ii mine, and cm consideration of the averments in the· petition and the materials . placed· before the Court we are satisfied that the Company was entitled to have its grievance against the action of the Municipality, which was prima facie unjust, tried. ·

The Company pleaded that the Ulhasnagar Municipality had ''.::ntered into solemn arrangement" pot to levy ·octroi duty for period of seven years from the date o~ its imposition. The evidence relating to the u,ndenaking was contained in public records. The Government of Maharashtra advised the Municipality that it was acting in violation of the terms of that undertaking.. By its resolu~ tion the Municipality declined to abide by the undertaking of its predecessor.

There. is undoubtedly clear distinction between representa-tion of an existing fact and representation that something will be done in future. The former may, if it amounts to representation as to some fact alleged at the time to be actually in ex.istence, raise an estoppel, if another person alters his position relying upon that representation. representation thatrsomething will be done in the future may result in contract, if another person to whom it is

addressed acts upon it. representation that something will be done jn future is not representation that it is true when made. But between representation of fact which is untrue and representation-express or implied-to do something in future, there is no clear antithesis. representation that something will be done •n future may involve an existing intention to act in future in the manner represented. If the representation is acted upOl) by another person it may, unless the statute governing the person mak-ing the representation provides otherwise; result in an agreement enforceable at law; if the statute requires that the agreement shall be in certain form, no contract may result from the representation and acting thereupon but the law is not powerless to raise in appro-c priate cases an equity against him to compel performance of the obligation arising out of his representation.Public bodies are as much bound as private individuals to carry out representations of facts and promises made by them, relyin)( o.n which other persons have altered their position to their prejudice. The obligation arising against an individual out of his representation amounting to promise may be enforced ex contractu by perso.n who acts upon the promise : when the law requires that contract enforceable at law against public body shall be in certain form or be executed in the manner prescribed by statute, the obligation may be if the contract be not in that form be enforced against it in ap-propriate cases in equity. In Union of India & Ors. v. M/s. Indo-E Afghan Agencies Ltd. ([1]) this Court held that the Government is not exempt from the equity arising out of the acts done by citizens to their prejudice, relying upon the representations as to its future conduct made by the Government. This Court held that the following observations made by Denning, J., in Robertson v. Minister of Pensions(') applied in Tndia : "The Crown cannot escape by saying that estoppels do not bind the Crown for that_ doctrine has long been explo~ed. Nor can the Crown escape by prayin~ in aid the doctrine of executive ,necessity, that is, the doctrine that the Crown cannot bind itself so as to fetter its future executive action."

We are in this case not concerned to deal with the question whether Denning, L.J., was right in extending the rule to different class of cases as in Falmouth Boat Construction Co. Ltd. v. Hoire/!([3 ]) where he observed at p. 542 :

"Whenever Governmellt officers in their dealings with subject take on t'1emse1ves to assume authority in

(!) [1968] 2 S.C.R. 366, (2) [1949] I K.11. 2~7. (3) [1950] All, E.R. 538.

[ 1970] 3 s.c.R.

matter with which the subject is concerned, he is en-titled to rely on their having the authority which they assume. He does not know, and cannot be expected to kin.ow, the .limits of their authority, and he ought not to suffer ii' they exceed it."

It may be sufficient to observe that in appeal from that judgment (Howell v. Falmouth Boat Construction Co. Ltd.) Lord Simonds observed after referring to the observations of Denning, L.J. :

''The illegality of an act is the same whether the action has been !llisled by an assumption of authority on the llart of govelllllment officer however high or low in the hierarchy. . . . . The question is whether the character of an act done in force of statutory prohi-bition is affected by the fact that it had been induced by misleading assumption ol authority. In my opinion the answer is clearly : No."

If our nascent democracy is to thrive different standards of conduct for the people and the public bodies c~t ordinarily be permitted. public body is, in our judgment, not exempt from liability to carry out its obligation arising out of representa-tions made by it relying upon which ·a citizen has altered his posi-tion to his prejudice.

Mr. Gokhale appearing on behalf of the Municipality urged that the petitioin filed by the Company apparently raised questions ol fact. which . in the view of the High Court could not appro-priately be tried in the exercise of the extra-ordinary jurisdiction under Art. 226. But the High Court. has not said so, and on review of the averments made in the petition this argument cannot be sustained. Merely because question of fact is raised, the High Court will ;not be justified in requiring the party to seek relief by the somewhat lengthy, dilatory and expensive rrocess by civil suit against public body.. The questions o fact raised by the petition in this case are elementary. The order passed by the High Court is set aside and the case is remanded to the High Court with direction that it be readmitted to the ljle and be dealt with and disposed of according to law. The High Court will issue rule to the Municipality and the State and dispose of the petition. We recommend that the case may be taken up for early hearing.We had during the' pendency of the appeal._in this Court made an order restraining the levy of octroi duty. We extend the ope-ration of the order for fortnight from this date to enable the

CENTUllY SPINNING CO. v. MUNICIPAL COUNCIL (Shah,].) 86I

Company to move the High Court for an appropriate interim order pending hearing and disposal of the writ petition. There will be ai> order as to costs in this Court. Cos!S in the High Court will be costs in the cause.

Since we have gr;mted special leave against the order dismis-B sing the petition, we do not deem it necessary to consider whether the order, rejecting the application for certificate was erroneous. Civil Appeal No. 2131 of 1969 is therefore dismissed.