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PETITIONER: BIHAR EASTERN GANGETIC FISHERMENCO-OPERATIVE SOCIETY LIMITED

       Vs.

RESPONDENT: SIPAHI SINGH & OTHERS

DATE OF JUDGMENT01/09/1977

BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT GOSWAMI, P.K. KAILASAM, P.S.

CITATION:  1977 AIR 2149            1978 SCR  (1) 375  1977 SCC  (4) 145  CITATOR INFO :  RF         1979 SC 621  (30)  R          1980 SC1109  (4)  RF         1980 SC1285  (33)  R          1988 SC2143  (14)

ACT: Civil Procedure Code (Act V of 1908), Order XLI Rules 4  and 33-Right  to  obtain  reversal  of  whole  decree  where  it proceeds on ground common to all, applies even at  appellate stage. Constitution  of India 1950, Article 299, Settlement of  the Jalkar  incomplete,  not  made and executed  in  the  manner prescribed by Article 299 of the Constilion, whether valid. Transfer of Property Act (Act IV) 1882, sections 54 and 107, General  Clauses,  Act,  v.  3(26)-Registration  Act   1908, section 17(1)(d)-Contract of Sale/ Lease of fshing rights to be valid, being a "profit a preadre", must be by means of  a registered instrument. Constitution of India, Article 226-When can malidamus issue. Estoppel-Promissory  estoppel-There cannot he  any  estoppel against the Government.

HEADNOTE: The  fishery rights in the Gangapath Islampur  Jalkar  which settled  with the appellant for the year 1974 to 1975  (i.e. 1-7-1974 to 30--6-1975) at the Jamma of Rs. 1,50,000/-  was, however, made in favour of one Sipahi Singh (Respondent  No. 1)  for the period commencing from July 1, 1975 to June  30, 1976, as a result of the public auction at which  respondent No.  1  offered  the highest bid of Rs.  1,65,000/-.   On  a representation made by respondent No. 1, on 1-2-1976, for  a remission  in  the amount at which the settlement  had  been made  in  his favour, on the ground that he had  suffered  a heavy  loss  during  the year 1975-76, as a  result  of  the unlawful activities of the members of the appellant society, or in the alternative for continuance of fishery rights  for the  years  1976-77  and 1977-78  the  Government  made  the deposit  by respondent No. 1 of  one year’s  settlement  fee at  Rs. 1,65,000/- a sine qua non to the issue of the  order of  settlement  in his favour.  Respondent No. 1  made  this deposit   informed  the  Government.   However,   taking   a

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favorable  presentations  made by the appellant  society  on February  18, 9, 1976 to its Revenue Minister and the  Chief Minister  Government of Bihar changed its mind  and  settled the  fishery rights with the appellant, vide its letter  No. 10/S.-4032/76-1976, date June 29, 1976, on condition of  the deposit  by  the latter of Rs. 1,65,000/- plus  the  earlier arrears  of Rs. 58,868/-, in three equal  installments;  the first   instalment  to  be  deposited  before   taking   the settlement  and within a week from that date.  It  was  also made  clear  that in case the appellant failed to  make  the deposit  aforesaid the settlement be issued by highest  bid. On  June 30, 1976, when respondent No. 1 went to obtain  the "dakhil  parwana",  he  was  informed  of  this   subsequent decision   of  the  State  Government.   Respondent  No.   1 challenged  the said orders by filing a writ petition  under Art 226 of the Constitution.  Though the High Court of Bihar found  that  there was no binding  or  enforceable  contract between  respondent  No.  1 and  the  State  Government,  it allowed  the  writ  petition  relying  on  the  doctrine  of promissory estoppel. Allowing the appeal by special leave, the Court, HELD : (1) It is no doubt true that the year 1976-77 has run out  and the State has not preferred any appeal against  the adverse  decision  of the High Court but since it  has  been implemented  as  a respondent to the present appeal  and  in actively  supporting the appellant who was  indisputably  in possession and 376 enjoyment   of  the  Jalkar  at  the  commencement  of   the Proceedings  under Article 226 of the Constitution and  lost the  same as a result of the judgment and order of the  High Court  and  the appellant could not effectively  pursue  the application  for  the  lease for the year  1977-78  and  the reversal  of the judgment and order of the High Court  which proceeds  on  grounds  common  to  the  appellant  and   the respondents 2 to 4 can be made in favour of respondent No. 1 to  meet the ends of justice under Order XLI Rules 4 and  33 of  the  Code of Civil Procedure and  the  State  Government might have been prevented from settling the Jalkar in favour of the appellant because of the mandatory injunction granted by the High Court.  The appellant, is vitally interested  in the  matter  and  is entitled to maintain  and  continue  to prosecute the appeal and to showthat the writ of mandamus issued by the High Court is unsustainable in law.[380 E-G] (2)  The  provisions,  of Article 299  of  the  Constitution which  are  mandatory in character require that  a  contract made in the exercise of the executive power of the Union  or of a State must satisfy there conditions namely, (i) it must be expressly made by the President or by the Governor of the State as the case may be; (ii) it must be executed on behalf of  the  President or the Governor as the case may  be;  and (iii)  its  execution  must be by such person  and  in  such manner as the President or Governor may direct or otherwise. Failure  to  comply  with  these  conditions  nullifies  the contract and renders it void and unenforceable. [380 H,  381 A, D-E] In  the  instant  case, the settlement of  the  Jalkar  with respondent  No.  1 was not made and executed in  the  manner prescribed by Article 299 of the Constitution.  Accordingly, it  could  not  be said to be valid and  binding  on  State. Respondent No. 1 could not base his claim thereon. The  State of Bihar v. M/s.  Karam Chand Thapar  &  Brothers Ltd. [1962] 1 S.C.R. 827; Seth Bikhraj Jaipuria v. Union  of India [1962] 2 S.C.R. 880’ State of West Bengal v. M/s.   B. K.  Mondal & Sons [1962] Supp.  1 S.C.R. 876 and  Mulamchand

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v. State of Madhya Pradesh [1968] 3 S.C.R. 214 applied. (3)The  right  to catch and carry away the  fish  being  a ’profit a prendre’ and as such an immovable property  within the  meaning  of the Transfer of Property Act  read  in  the light  of s. 3(26) of General Clauses Act, its grant has  to be  by means of a registered instrument if it is a  tangible immovable property exceeding in value of Rs. 100/- under  s. 54  of  Transfer  of property Act and if  it  is  intangible whatever its value.  The transaction of sale of the right to catch and carry away the fish if not effected by means of  a registered instrument would pass no title or interest.  User of the term ’lease’ would not make any difference because  a lease of fishery which is immovable property, as defined  in s.  2(6)  of the Registration Act, if it is,  for  any  term exceeding one year or reserves a yearly rent has also to  be registered  as required by s. 17(1)(d) of  the  Registration Act 1908 and section 104 of the Transfer of Property Act. In  the instant case the transfer of the ’profit a  prendre’ in  favour of respondent No. 1 was admittedly for two  years reserving  a  yearly  rent  and  was  not  evidenced  by   a registered instrument.  He had therefore no right, title  or interest which could be enforced by him. [381 E-H, 382 B] Ananda Behera & Anr. v. The State of Orissa & Anr. [1955]  2 SCR 919 followed. (4)There cannot be any estoppel against the Government  in exercise   of  its  sovereign  legislative   and   executive functions. The  instant  case is not one where respondent No.  1  could invoke  the doctrine of promissory estoppel particularly  in view  of  the  fact that be neither  deposited  Rs.  3,713/- required  for execution of the lease agreement nor  was  any parwana issued to him. [382 F, G] Excise Commissioner, U.P., Allahabad etc. etc. v. Ram  Kumar etc. etc.  A.I.R. 1976 S.C. 2237, applied.  377 Union of India & Ors. v. M/s.  Afghan Agencies Ltd. [1968] 2 S.C.R. 366, distinguished. (5)The  chief  function  of  a  writ  is  to  compel   the performance  of public duties prescribed by statute  and  to keep  subordinate tribunals and officers  exercising  public function  within the limit of their jurisdiction.  In  order that  mandamus  may  issue  to  compel  the  parties  to  do something,  it must be shown that there is a  statute  which imposes a legal duty and the aggrieved party has a.    legal right under the statute to enforce its performance. In  the  instant case respondent No. 1 was not  entitled  to apply  for grant of a writ of mandamus under Article 226  of the.   Constitution and the High court was not competent  to issue the same when it has not been shown that ’there is any statute  or rule having the force of law which casts a  duty on  the respondents 2 to 4 which they fail to perform.  [383 C-F] Lekhraj  Satramdas,  Lalvani v.  Dy.  Custodian-cum-Managing Officer & Ors. [1966] 1 S.C.R. 120; Dr. Rai Sivendra Bahadur v. The Governing Body of the Nalanda College [1962] Supp.  2 S.C.R.  144 and Dr. Umakant Saran v, State of Bihar  &  Ors. A.I.R. 1973 S.C. 964, referred to. (6)It  is within the competence of the Government to  give preference to a Fishermen Co-operative Society and to settle the  Jalkar  according to the revised policy  and  procedure formulated  by it in exercise of its absolute authority  and incorporated   in  its  circular  dated  April   18,   1974. Respondent No. 1 is entitled to refund on the basis of s. 70 of  the  Contract  Act, proportionate  grant  of  the  Jamma deposited  by  him  for  the year  1977-78  for  the  period

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commencing from May 1, 1977 to 30th August 1977. [384 A-G]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1478  of 1976. Appeal  by Special Leave from the Judgment and  Order  dated 20-8-76  of the Patna High Court in Civil Writ  Jurisdiction Case No’ 1463/76. D.V.  Patel, Miss B. Ram Rakhiani and S. K.  Gambhir  for the Appellant. Lal Narain Sinha and Yogeshwar Prasad, Rani Arora and  Merra Bail, for Respondent No. 1. D. Goburdhan for Respondent Nos. 2 and 3 and 4. The Judgment of the Court was delivered by JASWANT  SINGH, J.-This appeal by special leave is  directed against the judgment and order dated August 20, 1976, of the High  Court  of Judicature at Patna in Civil  Writ  Judicial Case   No.  1463  of  1976  (filed  by  respondent  No.   1) restraining the appellant and respondents 2 to 4 herein from acting  on the basis of letter No. 10-S4032/76-1976 R  dated June  29,  1976 addressed by the Department of  Revenue  and Land   Reforms,   Government  of  Bihar,   to   the   Deputy Commissioner, Santhal Pargana, Dumka (which formed Annexure- 4  to the aforesaid writ petition) and directing  respondent No. 2 to execute the lease of the fishery rights in question in favour of respondent No. 1 and to, put him in  possession thereof, if not already done. The facts and circumstances giving rise to this appeal are : The  appellant  which is a  co-operative  society  commenced taking  settlement  ,of Gangapath Islampur  Jalkar,  bearing Tauzi No. 614 (hereinafter 378 referred   to  as  the  ’Jalkar’)  immediately   after   its establishment and. registration in 1950 (A.  D.) The fishery rights  in the Jalkar which were settled with the  appellant for the year 1974-75 as theretofore was to run from July  1, 1974,  to  the  end  of June, 1975  at  the  Jamma.  of  Rs. 1,50,000/-.  At the end of the said year, it was  discovered that the appellant had defaulted in payment of the Jamma  to the  extent  of  Rs. 66,869/-.  The  settlement  of  fishery rights in the Jalkar for the period commencing from July  1, 1975 to June 30,1976 was made in favour of respondent No.  1 by  respondent  No. 2 through its Revenue  Department  as  a result of the public auction at which the former offered the highest   bid  of  Rs.  1,65,000/-.   In   February,   1976, respondent  No.  1  made a  representation  to  the  Revenue Department  of  the  Government  of  Bihar  praying  for   a remission  of  Rs.  75,000/-  in the  amount  at  which  the settlement had been made in his favour on the ground that he had  suffered  a heavy loss during the aforesaid  period  of settlement  as  a result of the unlawful activities  of  the members  of the appellant society.  In the  alternative,  he prayed  that  in  case the State Government  was  not  in  a position  to grant the remission, the settlement of  fishery rights  of  the Jalkar be continued with him for  a  further period of three years at the same amount in order to  enable him  to  recoup the aforesaid loss suffered by  him.   After some  inquiry and consideration of the matter,  the  Revenue Department  of  the Government of Bihar  ordered  that  the. settlement of the Jalkar should continue with respondent No. 1  for the years 1976-77 and 1977-78 at Rs.  1,65,000/-  per year.   Their Government, however, made the deposit  of  the settlement fee of Rs. 1,65,000/- by respondent No. 1 a  sine

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qua  non  to  the  issue of the  order  of  settlement.   An intimation of this order was given by the Government to  its Deputy Commissioner, Santhal Pargana, Dumka, vide its latter No.  10-S-4032/76R dated April 30, 1976, forming  Annexure-1 to the writ petition.  A copy of this communication was also sent to respondent No.  1 with the direction that he  should deposit  Rs. 1,65,000/- before the issue of  the  settlement order for the aforesaid two years.  In compliance with  this order, respondent No. 1 deposited a sum of Rs. 1,65,000/- on May  3, 1976, vide challan No. 18 (Bank) dated May  3,  1976 and  by his letter of the even date, he requested  the  Sub- Divisional  Officer,  Sahibganj,  to  issue  the  Patta   of settlement  of the Jalkar for the years 1976-77 and  1977-78 in his favour. Respondent  No. 1 also communicated  the fact of the deposit by himof   Rs.  1,65,000/-  to   the Secretary to the Government of Bihar,Revenue Department,  by telegram  dated May 5, 1976.  How-ever, taking a  favourable view  of  the  representations  made  by  the  appellant  on February 18, 1976 and March 9, 1976 to its Revenue  Minister and the Chief Minister respectively, the Government of Bihar changed  its  mind and informed the Deputy  Commissioner  of Santhal  Paragana, Dumka vide its letter  No.  10/S-4032/76- 1976-R  dated June 29, 1976 that it had "taken the  decision that  settlement  of the aforesaid Jalkar with  the  Society (i.e.  the  appellant) be done for the year 1976-77  on  the additional  conditions  (besides  those  laid  down  by  the prescribed rules and conditions) that it would make the  de- posit of all earlier arrears of Rs. 58,868/- along with  the amount  of settlement of Rs. 1,65,000/- for this  year  (i.e 1976-77) in three equal instalments, the first instalment to be deposited before taking  379 the  settlement" and within a week from that date.   It  was made clear in the concluding part of the communication  that in case the appellant failed to makethe    deposit    as aforesaid, ’the settlement be issued by highest bid.’On June  30,  1976, when respondent            No.  1  went  to obtain the’dakhil  parwana’, he is stated to have  been informed   of  this  subsequent  decision  of   the,   State Government.  Averring that he had been put to a considerable financial loss as a result of the aforesaid subsequent order of  the Government settling the fishery rights in Jalkar  in favour  of the appellant, respondent No. 1 filed a  petition under  Article 226 of the Constitution in the High Court  of Judicature  at  Patna  on  July 2,  1976  praying  that  the aforesaid  order settling the fishery rights of  the  Jalkar with  the appellant be quashed by a writ of  certiorari  and the,  State Government be directed by a writ of mandamus  to execute  the lease in his favour for the years  1976-77  and 1977-78  and not to disturb his possession over the  fishery right  in  question during the currency of the term  of  the lease, The respondent also prayed for such other orders,  as the Court might think fit and proper. The writ petition was contested by the appellant as also  by respondents  Nos. 2 to 4 herein.  In the  counter  affidavit jointly  filed  by  them in  opposition  to  the,  petition, respondents Nos. 2 to 4 averred inter alia that there was no completed  contract  and  hence  no  formal  agreement   was executed  between  the State. and respondent No.  1  and  no ’parwana’ was issued in favour of the latter, that the State had full right and authority to revoke its decision  be-fore execution  of  the agreement and that in view  of  the  well established principles, ’the settlement of the Jalkar had to be,  given  to the appellant if it was willing to  take  the lease’.   The respondents also denied their  liability:  for

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the expenses alleged to have been incurred by respondent No. 1  in connection with the preparation for the lease  ordered in his favour by the Government vide the aforesaid Annexure- 1  to the writ petition.  They, however, admitted  that  the appellant  indulged in unlawful activities for four days  in 1975-76 which had caused a meager loss to respondent No.  1. In  the counter affidavit filed by it. the  appellant  while denying  that it was a defaulter, averred that its  petition for  remission  was pending before the  Remission  Committee appointed by the State; that the Assistant Registrar and the Registrar  of the Cooperative Societies had recommended  the settlement of fishery rights of the Jalkar in its favour and on  representations made by it to the Revenue  Minister  and the  Chief  Minister,  the  Government  of  Bihar  had,   in conformity with mandatory orders and instructions, issued an order  of  settlement in its favour on June 28,  1976;  that pursuant  to  that order, it made the necessary  deposit  by 10.35 A.M. on July 1, 1976 and that respondent No. 1 had  no right  to challenge the settlement of the fishery rights  of the Jalkar in its favour. The  High Court while holding that there was no  binding  or enforceable contract between respondent No. 1 and the  State Government allowed the writ petition relying on the doctrine of  promissory  estopped.  Aggrieved by  this  judgment  and order,  the  appellant  has as already stated,  come  up  in appeal to this Court. 380 Appearing  on behalf, of the appellant, Mr. Patel has  urged the following points :               1.    That  since  there  was  no   completed,               binding  and enforceable contract between  the               State  of  Bihar  and  respondent  No.  1   as               contemplated by Article 299 of             the               Constitution,  the  aforesaid  writ   petition               filed   by   respondent   No.   1   was    not               maintainable.               2.    That to a case like the present one, the               doctrine        of promissory estopped had  no               application  and the High Court has  erred  in               relying upon the same.               3.    That  in  any case, since there  was  no               breach  of any statutory duty in  the  present               case,  a writ of mandamus could not have  been               issued by the High Court. Mr.  Lalnaryan Sinha has, on the other hand, submitted  that in  the facts and circumstances of the case, the High  Court was  justified  in  applying  the  principle  of  promissory estoppel  and there is no warrant for interfering  with  the judgment and order passed by the High Court. We shall deal seriatim with the aforesaid three  contentions raised on behalf on the appellant.  But before attempting to do,  that,  we  would like to dispose  of  the,  preliminary objection raised on behalf of respondent No. 1 to the effect that  as the period for which the impugned order dated  June 29,  1976 settling the Jalkar with the appellant was  issued has  expired  and  the State has not chosen  to  prefer  any appeal against the aforesaid. judgment and order of the High Court  the appellant has no manner of right or locus  standi to  challenge the continuance of settlement with  respondent No. 1 for the year 1977-78 and to continue to prosecute  the present  appeal.  It is no doubt true that the year  1976-77 has  run  out  and the State has not  preferred  any  appeal against the adverse decision of the High Court but since  it has been impleaded as a respondent to the present appeal and is actively supporting the appellant who was indisputably in

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possession  and enjoyment of the Jalkar at the  commencement of the proceedings under Article 226 of the Constitution and lost  the same as a result of the judgment and order of  the High  Court and the appellant could not  effectively  pursue the  application for the lease for the year 1977-78 and  the reversal  of the judgment and order of the High Court  which proceeds on grounds common to the appellant and  respondents 2 to 4 can be made in favour of respondent No. 2 to meet the ends of justice under Order 41 Rules 4 and 33 of the Code of Civil  Procedure  and the State Government might  have  been prevented  from  settling  the Jalkar  in,  favour  of,  the appellant because of the mandatory injunction granted by the High  Court,  the  appellant is, in  our  judgment,  vitally interested  in  the matter and is entitled to  maintain  and continue to prosecution the appeal and to show that the writ of  mandamus  issued by the High Court is  unsustainable  in law.  We accordingly overrule the preliminary objection  and proceed  to  consider the aforesaid  contentions  raised  on behalf of the appellant. Re  :  Contention No. 1 :-It is now well  settled  that  the provisions  of  Article 299 of the  Constitution  which  are mandatory  in character require that a contract made in  the exercise of the executive power of 381 the  Union or of a State must satisfy three conditions  viz. (i) it must be expressed tobe made by the President or by the Governor            of the State, as thecase  may   be; (ii) it must be executed on behalf of the President orthe Governor, as the case may be and (iii) its execution must be bysuch  person  and in such manner as  the  President  or Governor  may direct or authorise.  Failure to  comply  with these conditions nullifies the contract and renders it  void and unenforceable. (See decisions of this Court in The State of  Bihar O. M/s Karam Chand Thapar & Brothers Ltd.(1)  Seth Bikhraj  Jaipuria v. Union of India ( 2 ) and State of  West Bengal v. M/s.  B. K. Mondal & Sons. (3) It  will  also be useful to refer to the  Judgment  of  this Court  in Mulamchand v. State of Madhya Pradesh ( 4 )  where while reiterating the principles laid down in the  aforesaid decisions, it was observed               "There   is   no  question  of   estoppel   or               ratification   in  a  case  where   there   is               contravention  of  the provisions  of  Article               299(1)  of  the Constitution.  The  reason  is               that  the provisions of section 175(3) of  the               Government of India Act and the  corresponding               provisions of Art. 299(1) of the  Constitution               have  not  been enacted for the sake  of  mere               form   but   they  have   been   enacted   for               safeguarding    the    Government,     against               unauthorised  contracts.  The  provisions  are               embodied  in  s. 175(3) of the  Government  of               India Act and Art. 299(1) of the  Constitution               on the ground of public policy--on the  ground               of protection of general public .... and these               formalities  cannot  be  waived  or  dispensed               with." In  the instant case, it is obvious that the  settlement  of the  Jalkar with respondent No. 1 was not made and  executed in the manner prescribed by Article 299 of the Constitution. Accordingly, it could not be said to be valid and binding on the  State of Bihar and respondent No. 1 could not base  his claim thereon. That  apart, there is an additional reason for holding  that the  settlement  of Jalkar with ’respondent No.  1  was  not

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valid  and enforceable.  The right to catch and  carry  away the fish being a ’profit a prendre’ i.e. a profit or benefit arising out of the land, it has to be regarded as  immovable property within the meaning of the Transfer of Property Act, read  in the light of s. 3(26) of the General  Clauses  Act. If a ’profit a prendre’ is tangible immovable property,  its sale  has to be by means of a registered instrument in  case its  value exceeds Rs. 100/- because, of section 54  of  the Transfer of Property Act.  If it is intangible, its sale  is required to be effected by, a registered instrument whatever its value.  Therefore, in either of the two situations,  the grant  of  the ’profit a prendre’ has to be by  means  of  a registered instrument.  Accordingly, the transaction of sale of  the  right  to  catch and carry away  the  fish  if  not effected by means of a registered instrument, would pass  no title or interest. (See Ananda Behera & Anr. v. The State of Orissa & (1)  [1962] 1 S.C.R. 827. (2)  [1962] 2 S.C.R. 880. (3)  [1962] Supp.  1 S.C.R. 876. (4)  [1968] 3S.C.R.214. 382 Anr.(1) Even if the settlement of Jalkar with respondent No. 1 is regarded as lease as described by him in Annexure-2  to the writ petition, it would not make any difference  because a lease of fishery which is immovable property as defined by section  2(6) of the Registration Act if it is for any  term exceeding one year or reserves a yearly rent has also to  be registered  as required by section 17(1) (d) of  the  Indian Registration  Act, 1908 and section 107 of the  Transfer  of Property Act. As  in the instant case, the transfer of  the ’profit a prendre’ in favourof   respondent  No.   1   was admittedly for two years reserving a yearlyrent  and   was not evidenced by a registered instrument.he    had    no right,  title  or interest which could be enforced  by  him. Manifestly therefore, the writ petition was misconceived and ought to have been dismissed. Re  :  Contention  No.  2 : It is  also  not  a  case  where respondent  No.  1 could invoke the doctrine  of  promissory estoppel  particularly in view of the fact that  he  neither deposited Rs. 3,713/- (Rupees three thousand, seven  hundred and  thirteen  only) required for execution  of  the  lease, agreement  nor was any ’Parwana’ issued to him and the  High Court  rejected  his  plea that after  the  receipt  of  the Government  order,  he invested large amounts  of  money  in purchasing  boats etc. and had to enter into contracts  with large number of employees whose services were needed for the Jalkar.   It would be appropriate to refer to the  following observations of the High Court in this respect :-               "The  statement referred to above is such  too               vague and general.  No details or  particulars               have  been given, nor any document annexed  to               the   original   writ  application,   or   the               rejoinder   aforesaid  in  support  of   these               averments.    therefore,  do  not  accept  the               correctness  of the statements.   However,  it               was very unlikely that the petitioner ’who had               already a subsisting lease would not be having               enough  or  sufficient materials  and  it  was               after  the communication regarding  lease  for               the  period 1976 to 1978 that  the  petitioner               started  purchasing boats etc.  The vague  and               general  statements  that have  been  made  in               paragraph 17 of the original writ  application               do not appear to me to be acceptable."

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The  doctrine  of  promissory estoppel could  also  not  be, pressed  into  service in the present case, as  it  is  well settled  that  there  cannot be any  estoppel  against  the, Government  in  exercise of its  sovereign  legislative  and executive   functions.  (See  Excise   Commissioner,   U.P., Allahabad etc. etc. v. Ram Kumar etc. etc.(2) The decision of this Court in Union of India & Drs. v.  M/s Indo--  Afghan Agencies Ltd.(3) on which strong reliance  is placed   by  counsel  for  respondent  No.  1   is   clearly distinguishable.  In that case, unlike the present one,  the respondents  were  not seeking to  enforce  any  contractual right.  They were merely seeking to enforce compli- (1)  [1955] 2 S.C.R. 919. (2)  A.I.R. 1976 S.C. 2237. (3)  [1968] 2 S.C.R. 366.  383 ance  with  the obligation which was laid upon  the  Textile Commissioner  by  the terms of the Export  Promotion  Scheme providing  for grant ,(by way of incentives to exporters  of woollen  textiles and goods) of Entitlement  Certificate  to import raw materials of a total amount ,equal to 100% of the F.O.B. value of their exports.  Their claim was founded upon the  equity which arose in their favour as a result  of  the representation  made on behalf of the  Government  in  the aforesaid Scheme, the exports of woollen goods made by  them Lo   Afghanistan   acting  upon   the   representation   and curtailment  of  the  import  Entitlement  by  the  Textile. Commissioner without notice to them. Re : Contention No. 3 :-This contention is also well founded and must prevail.  There, is abundant authority in favour of the proposition that a writ of mandamus can be granted  only in  a case where there is a statutory duty imposed upon  the officer concerned and there is a failure on the part of that officer  to discharge the statutory obligation.   The  chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals  and officers  exercising  public functions within the  limit  of their  jurisdiction.  It follows, therefore, that  in  order that  mandamus  may issue to compel the  authorities  to  do something,  it must be shown that there is a  statute  which imposes  a  legal duty and the aggrieved party has  a  legal right  under  the statute to enforce its  performance.  (See Lekhraj Satramdas, Lalvani v. Deputy  Custodian-cum-managing Officer & Ors.(1) Dr. Rai Shivendra Bahadur v. The Governing Body  of  the Nalanda College(2) and Dr.  Umakant  Saran  v. State  of  Bihar & Ors.(3) In the instant case, it  has  not been shown by respondent No. 1 that there is any statute  or rule  having  the  force  of  law  which  casts  a  duty  on respondents  2 to 4 which they failed to perform.  All  that is  sought  to be enforced is an obligation flowing  from  a contract  which, as already indicated, is also, not  binding and enforceable, Accordingly, we are clearly of the  opinion that  respondent No. 1 was not ,entitled to apply for  grant of a writ of mandamus under Article 226 of the  Constitution and the High Court was not competent to issue the same. This brings us to the consideration of the last question  of the relief  which can be granted to  the  appellant.   The settlement  of Jalkar with respondent No. 1 undoubtedly  did not  create  any legal right in his favour but as  the  year 1976-77  has already run out, the appeal in so far  as  that year  is concerned has become infructuous but in so  far  as the  appeal  relates  to the year 1977-78,  we  are  of  the opinion  that as respondent No. 1 is not validly  exploiting the  Jalkar  and  the  application  by  the  appellant   for settlement  thereof with it is pending with the  authorities

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and according to the revised policy and procedure formulated by it in exercise of its absolute authority and incorporated in its Revenue and Land Reforms Department’s circular letter No. S. 8 Serial (1) [1966] 1 S.C.R. 120. (2) [1962] Supp. 2 S.C.R. 144. (3) A.I.R.1973 S.C. 964. 384 6-0-4663R  dated  April  18,  1974,  addressed  to  all  the Collectors of the, State, it is within the competence of the Government  to give preference to a  Fishermen  Co-operative Society and to settle the Jalkar with the. appellant for the remainder  of  the year 1977-78 at 90% of  the  highest  bid amount  i.e. 10% less of the highest auction amount  but  it may  not  be possible for it to, do so in....  face  of  the impediment created by the mandamus issued by the High Court, we would allow the appeal’: in so far as the current year is concerned  and leave it open to the Government to grant  the fishery  rights  to  the appellant in  conformity  with  the aforesaid  policy and procedure in case the latter  fulfills the  conditions  laid  down therein.  In the  event  of  the Government  settling  the Jalkar with the appellant  or  any other  Fisherman Society in accordance with the  policy  and procedure  laid  down in the aforesaid circular  letter,  it shall, on the basis of section 70 of the Contract Act refund to  respondent  No.  1 proportionate  amount  of  the  Jamma deposited  by him for the year 1977-78 after going into  the accounts which he was bound to, maintain under order  passed by this Court on May 6, 1977 for the period commencing  from May 1, 1977 to August 30’, 1977. In the circumstances of the case, there will be no order  as to costs.. S.R. Appeal., allowed.. 385