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PETITIONER: VASANTKUMAR RADHAKISAN VORA

       Vs.

RESPONDENT: BOARD OF TRUSTEES OF THE PORT OF BOMBAY

DATE OF JUDGMENT21/08/1990

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. SAIKIA, K.N. (J)

CITATION:  1991 AIR   14            1990 SCR  (3) 825  1991 SCC  (1) 761        JT 1990 (3)   609  1990 SCALE  (2)297  CITATOR INFO :  D          1992 SC1075  (7)

ACT:     Presidency Small Cause Court Act, 1882 as amended by the Maharashtra  Amendment  Act  1963, Amendment  Act  1976  and Amendment  Act,  1984. Section 42A,  46(2)  and  47--Tenancy terminated  in  terms of covenant of lease by  notice  under Transfer  of  Property Act, 1882--Whether ejectment  can  be sought  under  Section 41 of Bombay Presidency  Small  Cause Courts Act, 1882.     Major Port Trusts Act, 1963: Section 29(1)(a) & (b) read with Section 133(2A)--Application to port of  Bombay--Effect of  repeal of the Bombay Port Trust Act,  1879--Quit  notice concerning vested immovable property--Whether ejectment suit can be filed.     Transfer  of Property Act, 1882: Sections 106,  109  and 111(h)  quit  notice issued by assistant estate  manager  of Bombay  Port Trust--Filing of ejectment suit by  Port  Trust Board--Whether maintainable.     General  Clauses Act, 1897: Sections 6  and  17--Whether there  is  any inconsistency between the Major  Port  Trusts Act,  1963  and the Bombay Port Trust Act  1879   Operation, efficacy and effectiveness of quit notice issued by  assist- ant estate manager under the State Act.     Indian  Evidence  Act,  1872:  Section   115--Promissory estoppel--Doctrine of--Applicability of plea against govern- ment  and  municipal body--Actions of State in  exercise  of legislative  or statutory powers-Public  authorities  acting beyond     scope    of     authority--Inapplicability     of doctrine--Doctrine   of  executive  necessity--Quit   notice issued  by  Assistant  Estate  Manager--Plea  of  promissory estoppel by tenant-Validity of.

HEADNOTE:     The  respondent a statutory body  corporate  constituted under the Bombay Port Trust Act, 1879--a ’State Act’ who had appointed  an  Assistant Estate Manager as  their  power  of attorney holder to lease out its property from time to time, terminate the leases and to lay action for ejectment,  etc.; leased out the suit property to the appellant. 826

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   The appellant was served with a notice under Section 106 read  with Section 111(h) of the Transfer of  Property  Act, 1882  terminating the tenancy in terms of the  covenants  of lease  and directing delivery of possession of  the  demised property giving one month’s time from 22nd January 1975. The notice  was  served on the tenants on January 28,  1975  and became effective from 28th February, 1975.     In  the  meanwhile, the Major Port Trust  Act,  1963,--a ’Central  Act’ was made applicable to the Bombay Port  Trust by  operation  of Section 133(2A) thereof with  effect  from February 1, 1975.     After  the expiry of one month from the suit  notice  an ejectment  application  was filed under Section  41  of  the Bombay  Presidency Small Cause Courts Act, 1882  as  amended under  the Maharashtra 1963 Amendment Act, and  a  direction was sought for delivery of possession. After the Maharashtra Amendment  Act  19 of 1976 came into force suits  were  laid against the three other tenants of the demised property.     The  respondent pleaded in the said suit that it  was  a successor-ininterest of the Port Trust Board under the State Act,  and  was  entitled to eject the tenants  and  to  take possession of the demised portions. The appellant  contended in his written statement that the suit was not  maintainable since the State Act ceased to be operative with effect  from February  1, 1975, the quit notice issued under Section  106 read  with  Section 111(h) of the Transfer of  Property  Act became  ineffective  and  without  determining  the  tenancy afresh the suit was not validly laid. It was further submit- ted  that the respondent had promised that on deposit  of  a certain  amount which the appellant-tenant did, he would  be given to lease a portion in the reconstructed building,  and consequently  the  respondent  was  estopped  by  promissory estoppel to have the tenant ejected.     One  suit was dismissed on the ground that  the  tenancy was  not duly determined as per law, while the  other  suits were decreed.     No  appellate forum had been prescribed under the  Maha- rashtra Amendment Act of 1963 but a substantive suit on  the original  side provided was available, but such a  right  to appeal was incorporated by the Maharashtra Amendment Act, 19 of 1976.     The  appellant filed a writ petition in the  High  Court under Articles 226 and 227 of the Constitution and the other tenants  filed regular appeals to a Bench of two  Judges  of the Small Causes Court, which were pending. 827 In the writ petition of the appellant-petitioner  challenged the vires of sections 2,3 and 4 of the Maharashtra  Amending Act,  1963 introducing Section 42(A) in Chapter VII  of  the Presidency  Small Cause Courts Act and deleting Sections  45 to 47 from the Principal Act and of amendment of SectiOn  49 thereof;  as well as Section 46(2) of the  Presidency  Small Cause Courts Act as amended by the Maharashtra Amendment Act of  1976 as offending Article 14 of tile Constitution.  When the matter came up before the Single Judge of the High Court it  was  referred to the Division Bench,  which  upheld  the constitutional  validity of the said sections  and  remitted the matter to the Single Judge for disposal on merits.     The Single Judge considered the matter and negatived the two  points  raised by  the  appellant-petitioner  regarding validity  of the notice terminating tile tenancy,  and  also the  plea  of promissory estoppel, and  dismissed  the  writ petition.     The  appellant appealed to this Court by  special  leave under Article 136. It was contended on behalf of the  appel-

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lant that the quit notice issued under Section 106 read with Section  III(h) of the Transfer of Property Act was  invalid and that by issue of the said notice no right accrued to the respondents  and  that  the termination  of  tenancy  became operative only on expiry of one month given thereunder  i.e. February 28, 1975, by which date the State Act became  inop- erative,  as from February 1, 1975 the Central Act had  come into  force;  that termination of tenancy was an  act  inter vivos  by operation of Section 106 read with Section  III(h) of the Transfer of Property Act, and that under Section 109, the  respondent not being a living person, was not  entitled to  the benefit of the quit notice as its operation was  not saved by Section 2(d) and Section 5 of the said Act. It  was also  contended  that  the respondents  were  estopped  from ejecting the appellant and other tenants who were  similarly situated  on  the principle of promissory estoppel,  as  the Estate  Manager of the respondent in his letter dated  April 3, 1972 directed the tenant to deposit Rs. 11,000 for  grant of  tenancy  after reconstruction of the flats  therein  and placing  reliance thereon the tenants having  deposited  the amount  demanded  from them and acted upon  the  promise  to their  detriment,  the respondents shall be declared  to  be estopped from ejecting the tenants from the demised  respec- tive portions leased out to them.     The appeal was contested on behalf of the respondents by contending that when right, title, and interest in immovable property  stood transferred by operation of law, the  spirit behind Section 109 of the 828 Transfer  of Property Act will apply; and the  successor-in- interest would be entitled to the rights of the  predecessor and  that as the Estate Manager had no authority to  give  a promise, and that even assuming that he had such a power, it was  a conditional one, namely, approval by the  Board,  and that  the Board having resolved to reject the claim, and  on reconstruction decided to allot to its own employees out  of administrative necessity, the principle of promissory estop- pel cannot be applied. Dismissing the appeal, this Court,     HELD:  1.  When right, title and interest  in  immovable property  stand transferred by operation of law, the  spirit behind Section 109 of the Transfer of Property Act per force would  apply and successor-ininterest would be  entitled  to the rights of the predecessor. This is what the Single Judge of  the  High  Court has held and the view  is  approved  as correct.  The notice terminating the tenancy of  Vasantkumar would enure to the benefit of the respondent and it could be availed of by the respondent to lay the suit for  ejectment. [836H; 837A-B]     N.P.K.  Raman  Menon v. Collector of Malabar,  AIR  1924 Madras  908; Trimbak Damodhar Raipurkar v.  Assaram  Hiraman Patil  & Ors., [1962] Suppl. 1 SCR 700; Hitkarini  Sabha  v. The Corporation of City of Jabalpur & Anr., [1973] 1 SCR 493 and Lower v. Sorrell, [ 1963] 1 Queen’s Bench Division  959, referred to.     Gurumurthappa  v. Chickmunisamappa, AIR 1953 Mysore  62, over-ruled.     Halsbury’s  Laws  of England, 4th Edition, Vol.  27,  p. 193;  Hill  and Redman in Law of Landlord and  Tenant,  17th Edition Vol. I, p. 488, p. 405; Mulla--Transfer of  Property Act, 6th Edition, p. 676 and Chitaley’s Transfer of Property Act, 4th Edn. 1969, Vol. III, Note 35, referred to.     2(i) The functionaries under both the State Act and  the Central  Act  are  the same. The notice was  issued  by  the Assistant Estate Manager by virtue of his official  function

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as power of attorney agent on behalf of the respondent-  The Board  of  Trustees have the right to  terminate  the  lease under  Section  26 of the State Act and these  rights  stood transferred  and vested under Section 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 officials duty. Thereby, they are  the acts done under the Central Act. [839C-E] 829     2(ii) The notice under Section 106 and Section III(h) of the Transfer of Property Act is an act done or purported  to have been done in the official capacity as Power of Attorney holder/Assistant Estate Manager on behalf of the respondent, Board  of Trustees; the right to lay the suit on  expiry  of one  month’s period prescribed in the notice, namely, on  or after February 28, 1975 had accrued to the respondent. It is an act done or purported to have been done under the Central Act  in exercise of the official function. The right to  lay the  suit  on determination of the tenancy by  notice  dated January 20, 1975 under the State Act is a transfer of inter- est by operation of Section 29(1) of the Central Act, to the respondent  under  Section 109 of the Transfer  of  Property Act. Thereby the quit notice is valid. The suit laid, pursu- ant thereto, is valid and legal. Accordingly order of eject- ment passed by the Small Cause Court is perfectly legal  and unassailable. [840B-E]     Commissioner  for the Court of Calcutta v.  Abdul  Rahim Osman  &  Co.;  Trustees of Port of Bombay  v.  The  Premier Automobiles Ltd. & Anr., [1974] 3 SCR 397, referred to.     3(i)  The  doctrine of promissory estoppel is  now  well established  one  in the field of administrative  law.  This principle has been evolved by equity to avoid injustice.  It is  neither  in the realm of contract nor in  the  realm  of estoppel.  Its  object is to interpose equity shorn  of  its form  to  mitigate the rigour of strict law.  This  doctrine would be displaced in a case where equity would not  require that the Government should be held bound by the promise made by it. But the Government must be able to show that in  view of the facts as have been transpired, public interest  would not be prejudiced. Where the Government is required to carry out the promise the Court would have to balance, the  public interest  in the Government’s carrying out the promise  made to the citizens, which helps citizens to act upon and alter’ his position and the public interest likely to suffer if the promises  were required to be carried out by the  Government and  determine  which way the equity  lies.  [841B;  842G-H; 843A]     3(ii) The doctrine of promissory estoppel would  equally apply to a private individual as well as a public body  like a Municipal Council. It cannot be applied in the teeth of an obligation or liability imposed by law. It cannot be invoked to  compel  the Government to do an act prohibited  by  law. There  may  be no promissory estoppel  against  exercise  of legislative functions. [843B-C] 3(iii) Promissory estoppel cannot be used for compelling the 830 Government or a public authority to carry out a  representa- tion  or  promise which is prohibited by law  or  which  was devoid  of  the  authority or power of the  officer  of  the Government  or  the public authority to make.  It  being  an equitable  doctrine  it must yield place to the  equity,  if larger public interest so requires and if it can be shown by the Government or public authority, for having regard to the facts  as they have transpired that it would be  inequitable

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to hold the Government or public authority to the promise or representation made by it. [844B-D]     3(iv) Promissory estoppel should not be extended, though it  may be rounded on an express or implied promise  stemmed from  the  conduct or representation by an  officer  of  the State or public authority when it was obtained to play fraud on the Constitution and the enforcement would defeat or tend to defeat the Constitutional goals. [844D]     Union of India v. Indo Afgan Agencies, [1968] 2 SCR 366; Century  Spinning and Manufacturing Co. Ltd.  v.  Ulhasnagar Municipal Council, [1970] 3 SCR 854; Motilal Padampat  Sugar Mills v. State of Uttar Pradesh, [1979] 2 SCR 641; Jeet  Ram v.  State  of Haryana, [1980] 3 SCR 689; Union of  India  v. Godfrey  Philips India Ltd., [1985] Supp. 3 SCR 123 at  144; State of Bihar v. Usha Martin Industries Ltd., [1987] 65 STC 430 and Asstt. Commissioner of Commercial Taxes, Dharwar  v. Dharmendra Trading Co. etc. etc., [1988] 3 SCR 946, referred to.     4.  Before making the public authority  responsible  for act  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. [847D-E]     Howell v. Falmouth Boat Construction Co. Ltd, [1951]  AC 837 and Attorney General for Ceylon v.A.D. Silva, [1953]  AC 461, referred to.     5. The letter dated April 3, 1972 written by the  Estate Manager  is  a conditional one, namely, that  on  fulfilling certain  conditions indicated in that letter he  would  make recommendation  to the Board for grant of  lease,  condition precedent  being that the tenant would deposit the  required sum  of  about Rs. 11,000 and odd with the  respondent.  Un- doubtedly,  the tenants completed that part of  the  obliga- tion.  Thereafter  it was placed before the  Board,  who  by resolution dated 831 September 10, 1974, considered.,it, but was rejected on  the ground  that  after  reconstruction the  building  would  be required by its staff. [845C-E]     6.  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  of  him is an ultra vires act,  though  conditional and, therefore. it does not bind the respondent. Though  the executive necessity has not been satisfactorily established, the  doctrine of promissory estoppel cannot be  extended  in favour of the appellant and other tenants. [847E-G]     7.  When a constitutional question has been  raised  and does arise for consideration, unless there is a  fulldressed argument  addressed  by  either side before  this  Court  no satisfactory resolution could be made. Mere paraphrasing the judgment of the High Court in particular when it relates  to the local laws is no proper decision making. [849A-B]

JUDGMENT:

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   CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1348  of 1990.     From  the  Judgment and Order dated 23.7.  1985  of  the Bombay High Court in W.P. No. 3144 of 1981. H .C. Tunara, J.A. Karia and M.N. Shroff for the Appellant.     Ashok  H. Desai, Solicitor General, U.J.  Makhija,  B.S. Bisaria. Mrs. A.K. Verma and Vivek Dholakia for the Respond- ents.     V.N. Ganpule, V.N. Patil and A.S. Bhasime for the  State of Maharashtra. The Judgment of the Court was delivered by     K.  RAMASWAMY, J. 1. The respondent is a statutory  body corporate initially constituted under the Bombay Port  Trust Act,  1879  (Bombay Act 6 of 1879), for short  ’State  Act’. Under  Sec. 26 thereof, the Board has power to  acquire  and hold  movable and immovable property and also has  power  to lease,  to  sell or otherwise convey movable  and  immovable property  which  may have become vested in  or  acquired  by them. The respondent has appointed A.J. Mescarnas, 832 Assistant  Estate Manager as their power of attorney  holder to  lease out its properties from time to time or  terminate the  leases  and to lay action for ejectment, etc.  The  re- spondent owns the Building bearing Old 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 repre- sentatives. 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 the respondent  that it is a successor in interest of the  Board under  the State Act and were entitled to eject the  tenants and  to the possession of the demised portions. The plea  of Vasantkumar  in  his  written statement  elaborated  by  the learned counsel, is that the suit is not maintainable. Since the State Act ceased to be operative with effect from Febru- ary  1, 1975, the quit notice issued under Section 106  read with  Section  111(h)  of Transfer of  Property  Act  became ineffective and without determining the tenancy afresh,  the suit  was  not validly laid. It was also  pleaded  that  the respondent  had promised that in deposit of  certain  amount which the tenant did, Vasantkumar would be given on lease of a  portion  in the reconstructed building. Thereby  the  re- spondent  is  estopped by promissory estoppel  to  have  the tenant  ejected. It may be mentioned at this  juncture  that one  suit was dismissed on the ground that the  tenancy  was not duly determined as per law. Other suits were decreed. No appellate  forum has been prescribed under Amendment Act  of 1963  but a substantive suit on original side  provided  was available.  By Maharashtra Amendment Act 19 of 1976  to  the principal  Act  such  a right to  appeal  was  incorporated.

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Vasantkumar  filed  writ petition in the  High  Court  under Articles  226 and 227 and others filed regular appeals to  a Bench of two Judges of the Small Cause Court and are  stated to be pending. 833     2.  In the writ petition the petitioner  challenged  the vires  of 1963 Amendment Provisions and also 1976  Amendment Provisions to the Presidency Small Cause Courts Act. When it came up for heating before Masodkar, J., he referred it to a Division  Bench.  The Division Bench by its  judgment  dated January  17/18, 1982 up-held the constitutional validity  of those  sections and remitted to the learned Single Judge  to dispose  of the writ petition on merits. The learned  single Judge  considered and negatived two points namely,  validity of  the notice terminating the tenancy; promissory  estoppel and  dismissed the writ petition. Vasantkumar had  leave  of this Court under Art. 136.     3. The primary contention of Mr. Turana, learned counsel for the appellant, is that quit notice issued under Sec. 106 read  with Sec. III(h) of the T.P. Act is invalid. By  issue of  quit  notice  no right had accrued  to  the  respondent. Termination  of tenancy became operative only on  expiry  of one month given thereunder, 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 immov- able property including the demised one in Frere Land Estate and thereby became a new landlord. Termination of tenancy is an  act inter vivos 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, or in execution of, a decree or order of a court of competent jurisdiction. Section 106 empowers the landlord to terminate the  contract of lease of immovable property, if it is for agricultural or manufacturing  purpose by giving six months notice and  ter- minable  on the part of either lessor or lessee,  by  giving fifteen  days’ notice expiring with the end of the month  of the  tenancy. Section ill(h) provides that, "on the  expira- tion  of a notice to determine the lease, or to quit, or  of intention 834 to quit, the property leased, duly given by one party to the other". Section 109 is Rights of lessor’s transferee: "If  the lessor transfers the property leased, or  any  part thereof, or any part of his interest therein, the  transfer- ee,  in  the absence of a contract to  the  contrary,  shall possess  all the rights, and, if the lessee so elects,  sub- ject to all the liabilities of the lessor as to the property or  part transferred so long as he is the owner of  it;  but the lessor shall not, by reason only of such transfer  cease to be subject to any of the liabilities imposed upon him  by the  lease unless the lessee elects to treat the  transferee as the person liable to

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Provisos are not necessary, hence omitted.     4.  Reading  of these fascicule  of  provisions  clearly demonstrates that a lessee of immovable property from  month to month is terminable by giving fifteen days’ notice or  as per  the terms of the contract of the lessee. (In this  case the contract provides to give one month’s notice). On expiry of  one  month from the date of receipt of  the  notice  the lease shall stand terminated. The lessor’s right on transfer of  the immovable property including the lease  hold  rights created on the property sold, the transferee, in the absence of  contract to the contrary, shall possess all  the  rights and if the lessee so elects, be subject to all the  liabili- ties  of  the lessor as to the property or part  thereof  so long  as he is owner of it. But by mere transfer the  lessor shall  not  cease to be subject to any  liabilities  imposed upon  him by contract of lease unless the lessee  elects  to treat the transferee as the person liable to him.     5. Undoubtedly, by issuance of notice to quit  automati- cally the right created thereunder, namely, cessation of the lease, does not become effective till the period  prescribed in  the notice or in the statute i.e. Sec. 106  expires.  On 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 835 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."     In  Chitaley’s Transfer Property Act, 4th  Edn.,  1969:, Vol. III, Note 35, it is stated thus: "Where the lessor gives notice to quit and then assigns  his interest  to another the assignee can take advantage of  the notice."     In N.P.K. Raman Menon v. Collector of Malabar, AIR ,1924 Madras  908 a Division Bench of the Madras High  Court  held that:, "English cases recognise that the person who is the landlord and  entitled  to possession, on the date of the  notice  to quit,  is the proper person to give the notice and :that  an assignee within the currency of that notice can take  advan- tage  of the notice sent by his assignor and rely  upon  it, when he brings a suit for recovering possession.,,     7.  No  doubt Mr, Tunara placed strong reliance  on  the decision  of Trimbak Damodhar Raipurkar v.  Assaram  Hiraman Patil &Ors., [1962] Suppl. 1 SCR 700. The facts therein  are that in 1943 a lease on agricultural land for five years was created- Before the expiry thereof Bombay Tenancy Act,  1939 was made applicable to the area where the land was  situated and under Sec. 23(1)(b) of that Act the period of lease  was

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statutorily extended to ten years-During the subsistence  of the contractual tenancy it was statutorily extended and  the Bombay 836 Act  67  of 1948 came into force. In March 1952  notice  was given  to the tenant that the tenancy expired on  March  31, 1953  and called upon the tenant to deliver  possession.  In the meanwhile the Bombay Act 33 of 1952 came into force. Its effect  was that the lease automatically stood extended  for ten years from time to time, unless terminated by giving one year’s notice averting that the land was required bona  fide by  the  landlord for personal cultivation and  that  income would  be the main source of income of the landlord. It  was contended  that since 1952 Amending Act was  not  retrospec- tive,  the  technical requirement of notice to quit  do  not apply. The question was whether the landlord was entitled to eject  the tenant without complying with the  statutory  re- quirement.  In that context it was held by the  Constitution Bench  that  by operation of the  statutory  provisions  the period of lease of 10 years from time to time was  automati- cally extended unless the tenancy was validly terminated  by giving  a  notice of one year or surrender was made  by  the tenant  as specified in the statute. The ratio  therein  has little  application to the facts of 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 creat- ed  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. The  ratio therein  also is of no avail to the appellant. No  doubt  in Gurumurthappa  v.  Chickmunisamappa, AIR 1953  Mysore  62  a Division Bench of Mysore High Court held that the  successor in  interest  is not entitled to avail the  notice  to  quit given  by the original landlord. In the light of  the  above discussion this view is not good law.     8. It is no doubt true that per se sec. 109 of T.P.  Act does  not apply to the facts of this case.  It  contemplates transfer  of  lessor’s right inter vivos.  But  when  right, title and interest in immovable property 837 stand  transferred  by operation of law, the  spirit  behind Sec.  109  per force would apply and successor  in  interest would be entitled to the rights of the predecessor. This  is what  the  learned  single Judge of the High  Court  in  the impugned  judgment  has held and we approve of the  view  as correct.  We, accordingly, hold that the notice  terminating the tenancy of Vasantkumar would enure to the benefit of the respondent  and it could be availed of by the respondent  to lay the suit for  ’ ejectment.     9. The matter could also be gleaned through the statuto-

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ry  operation as well. By operation of Sec. 26 of the  State Act,  the  Board of Trustees acquired and held  the  demised property which includes lease hold interest therein. Section 29(1)  of  the Central Act interposed and from  February  1, 1975 the appointed date, in relation to Bombay Port all  the movable  and  immovable property, assets and  funds  of  the predecessor Board shall vest in the Board, i.e. the respond- ent.  By operation of Clause (b) thereof all debts,  obliga- tions  and liabilities incurred, all contracts entered  into and  all matters and things engaged to be done, by  with  or for  the  Central Govt., or as the case may  be,  the  other authority  (i.e. predecessor Board under State Act)  immedi- ately  before such day, for or in connection with  the  pur- poses  of the port, "shah be deemed to have  been  incurred, entered  into  and engaged to be done by, with  or  for  the Board."  It further postulates that all rates,  fees,  rents and other sums of money due to the Central Govt., or as  the case  may  be,  the other authority  (i.e.  the  predecessor Board)  in relation to the port immediately before such  day shall be deemed to be due to the Board, i.e. the respondent. Other  clauses are not necessary. Hence omitted. Thereby  by operation  of Sec. 29(1)(b) the immovable  properties,  i.e. demised 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  subclause (c)  of sub-section (2D) of Sec. 133 provides that  notwith- standing  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 838 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 the State Acts  in  this  regard. Section  6 of the General Clauses Act, 1897  postulates  the effect of repeal thus: ’Where  this  Act or any (Central Act)  or  regulation  made after  the commencement of this Act, repeals  any  enactment hitherto  made or hereafter to be made, then, unless a  dif- ferent intention appears, the repeal shall not-- (b)  affect the previous operation of any enactment  so  re- pealed or anything duly done or suffered thereunder’ or (c)  affect  any right, privilege, obligation  or  liability acquired,  accrued  or incurred under any enactment  so  re- pealed; or  .....          any such investigation, legal proceedings or remedy may be instituted, continued or enforced  .......  as if the repealing Act or Regulation had not been passed." Section 17(1) provides under: "In any (Central Act) or Regulation made after the commence- ment of this Act, it shall be sufficient for the purpose  of indicating  the  application  of a law to  every  person  or number of persons for the time being executing the functions of  an office, to mention the official title of the  officer

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at present executing the functions of an office, or that  of the officer by whom the functions are commonly executed." Section 17 of the General Clauses Act substitutes the  func- tionaries  under the Central Act to those of  the  function- aries  under  the State Act. Section 6 gives effect  to  the previous  operation of anything done or subsists  the  right acquired or privilege accrued under the Repealed Act and the legal proceedings of remedy may be instituted, continued  or enforced as if the repealing Act had not been passed. There- fore, the operation, efficacy and effectiveness of the  quit notice issued by the power of attorney Agent of the respond- ent i.e. the Asstt. Estate Manager has been acquired by  the respondent Board. The rights and 839 remedy accrued to the respondent under the State Act  namely termination  of tenancy by issue of quit notice  under  Sec. 106 and 111(h) of T.P. Act and on expiry of thirty days i.e. on February 28, 1975 the respondent Board became entitled to institute  the proceedings in the suits to have the  tenants ejected  under Sec. 41 of the Provincial Small Cause  Courts Act.     10.  The contention of Mr. Tunara that the  Central  Act and  the  General Clauses Act would apply only to  the  acts done under the Central Act or State Act, by exercise of  the statutory  power  which alone have been validated  and  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  Trus- tees 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 Asstt. 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  connec- tion  between the impugned acts and official duty.  Thereby, they are the acts done under the Central Act. In Commission- er  for  the Court of Calcutta v. Abdul Rahim Osman  &  Co., Sec.  142 of the Calcutta Port Act came up  for  interpreta- tion. Thereunder it was contended that short delivery of the goods was an omission and not an act done under the Act  and though  the  suit was laid beyond three months, it  was  not barred by limitation. Section 142 enjoins that no suit shall be  brought in for anything done or purported to  have  been done beyond three months. It was held that after the  expiry of  three months from the day on which the cause  of  action had  arisen for short delivery, which was done or  purported to  have  been done under the Act, the suit  was  barred  by limitation.  It was further held that in order to apply  any bar under Sec. 142 it was first to determine whether the act which is complained of in the suit can be said to have  been within  the  scope  of the official duty of  the  person  or persons who are sought to be made liable. This question  can be  answered in the affirmative where there is a  reasonable connection between the act and the discharge of the official duty.  Once the scope of official duty is  determined,  Sec. 142  will protect the defendant not only from a claim  based on  breach of the’ duty but also from a claim based upon  an omission to perform such 840

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duty.  The protection cannot be held to be confined to  acts done  in the exercise of a statutory power but also  extends to acts done within the scope of an official duty. This view was  upheld  in Trustees of Port of Bombay  v.  The  Premier Automobiles  Ltd. & Anr., [1974] 3 SCR 397 where  there  was short  delivery of one bundle out of 153  bundles  consigned from  Japan and omitted to be delivered and it was  held  to constitute  an act done within the ambit of Sec. 87  of  the Bombay  Port Trust Act, 1879 and the bar of limitation  pre- scribed  thereunder would apply. Thus we have no  hesitation to  hold that the notice under Sec. 106 and Sec.  111(h)  of the Transfer of Property Act is an act done or purported  to have been done in the official capacity as Power of Attorney holder/Asstt.  Estate Manager on behalf of  the  respondent, Board  of Trustees; the right to lay the suit on  expiry  of one  month’s period prescribed in the notice, namely, on  or after February 28, 1975 had accrued to the respondent. It is an act done or purported to have been done under the Central Act  in exercise of the official function. The right to  lay the  suit  on determination of the tenancy by  notice  dated January 20, 1975 under the State Act is a transfer of inter- est  by operation of Sec. 29(1) of the Central Act,  to  the respondent  under Sec. 109 of the Transfer 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  re- spondents 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  Rs. 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  Solici- tor 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 out  of administrative necessity. Therefore, the promissory estoppel cannot  be applied. The principle of promissory estoppel  is that where one party has by his word or conduct made to  the other  a  clear and unequivocal  promise  or  representation which is intended to create legal relations or affect a 841 legal  relationship  to  arise in the  future,  knowing  or. intending that it would be acted upon by the other party  to whom the promise or representation is made and it is in fact so acted upon the other party, the promise or representation would be binding on the party making it and he would not  be entitled  to go back upon it, if it would be inequitable  to allow him to do so, having regard to the dealings which have taken place between the parties. The doctrine of  promissory estoppel is now well established one in the field of  admin- istrative law. This principle has been evolved by equity  to avoid injustice. It is neither in the realm of contract  nor in the realm of estoppel. Its object is to interpose  equity shorn  of its form to mitigate the rigour of strict law.  In Union  of India v. Indo Afgan Agencies, Shah J., as he  then was,  speaking  for the Division Bench of this  Court  while

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upholding  the application of promissory estoppel to  execu- tive acts of the ,State negated the plea of executive neces- sity thus: "We  are unable to accede to the contention that the  execu- tive  necessity releases the Government from  honouring  its solemn  promises  relying on which citizens  have  acted  to theft  detriment. Under our constitutional set up no  person may be deprived of his right or liberty except in due course of  and by if a member of the Executive seeks to  deprive  a citizen  of his right or liberty otherwise than in  exercise of power derived from the law common or statute--the  Courts will  be competent to and indeed would be bound  to  protect the rights of the aggrieved citizens." It was further held in its summing up thus: "Under  our jurisprudence the Government is not exempt  from liability  to carry out the representation made by it as  to its  future  conduct  and it cannot on  some  undefined  and undisclosed ground of necessity or expediency fail to  carry out  the  promise solemnly made by it, not claim to  be  the Judge  of its own obligation to the citizen on an  ex  parte appraisement  of the circumstances in which  the  obligation has arisen." In Century Spinning and Manufacturing Co. Ltd. v. Ulhasnagar Municipal Council, [1970] 3 SCR 854 Shah, J. again  extended this doctrine of promissory estoppel against public authori- ties thus: "This court refused to make distinction between a private 842       individual and a public body so far as the doctrine of promissory estoppel is concerned."    In  Motilal Padampat Sugar Mills v. State of  Uttar  Pra- desh, [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 exercis- ing  on  strict legal rights even where they  arise  not  in contract,  but on his own title deed or in statute.  It’  is not necesary that there should be some pre-existing contrac- tual relationship between the parties. The parties need  not be in any count of legal relationship before the transaction from  which  the promissory estoppel takes its  origin.  The doctrine  would  apply even where there is  no  pre-existing legal relation-ship’ between the parties, but the promise is intended  to create legal relations or effect a legal  rela- tionship  which  will arise in nature. It was  further  held that it is indeed pride of constitutional democracy and rule of  law that the Government stands on the same footing as  a private  individual so far as the obligation of the  law  is concerned-. The former is equally bound as the latter There- fore,  the  Government  cannot claim any immunity  from  the doctrine of promissory estoppel and it cannot say that it is under no obligation to act in a manner i.e. fair and just or that  it is not bound by the consi    derations  of  honesty and  good faith. In fact, the Government should be  held  to have  a  high standard of rectitude while dealing  with  its citizens.  Since the doctrine Of promissory estoppel  is  an equitable  doctrine, it must yield where the equity  so  re- quires.  If it can be shown by the Govt. that having  regard to the facts as they have transpired, it  would be inequita-

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ble to hold the Govt. or public authority to the promise  or representation  made  by it, the Court would  not  raise  an equity  in  favour of the promise and  enforce  the  promise against the Government. The doctrine of promissory  estoppel would  be  displaced in such a case. because on  the  facts, equity  would’  not require that the  Government  should  be held bound by the promise made by it. But the  Govt. must be able  to show that in view of the fact as have  been   tran- spired, public interest. would not be prejudiced. Where  the Govt.is  required to carry out the promise the  Court  would have  to  balance, the public interest in  the  Government’s carrying  out the promise made to the citizens, which  helps citizens to act upon and alter his position 843 and  the  public interest likely to suffer if  the  promises were required to be carried out by the Government and deter- mine which way the equity lies. It would not be enough  just to  say  that the public interest’ require  that  the  Govt. should not be compelled to carry out the promise or that the public  interest would suffer if the Govt. were required  to honour it. In order to resist its liability the Govt.  would disclose to the Court the various events insisting its claim to be exempt from liability and it would be for the Court to decide whether those events are such as to render it equita- ble  and  to enforce the liability against the  Govt.  There fore, we are holding that the doctrine of promissory  estop- pel 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 compell the Govt. to do  an  act prohibited by law. There may  be  no  promissory estoppel against exercise of legislative functions. Legisla- ture 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  af- firmed 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 clear thus: "there can be no promissory estoppel against the legislature in  the  exercise of its legislative functions nor  can  the Govt. or public authority be debarred by promissory estoppel from  enforcing a statutory prohibition. It is equally  true that  promissory estoppel Cannot be used to compel the  Gov- ernment or a public authority to carry out a  representation or promise which is contrary to law or which was outside the authority  or power of the officer of the Government  or  of the public authority to make. We may also point out that the doctrine of promissory estoppel being an equitable doctrine, it  must  yield when the equity so requires; if  it  can  be shown  by  the Government or public  authority  that  having regard  to the facts: as they have transpired, it  would  be inequitable  to hold the Government or public  authority  to the  promise or representation made by it, the  Court  would not  raise  an equity in favour of the person  to  whom  the promise or representation is made and enforce the promise or representation against the Government or public authority." 844 Doctrine  of Promissory Estoppel was reiterated  by  another Bench  of  three  Judges in State of Bihar  v.  Usha  Martin Industries Ltd., [1987] (65) STC 430 and Asstt. Commissioner

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of  Commercial Taxes, Dharwar Dharmendra Trading  Co.,  etc. etc., [1988] 3 SCR 946.     12. It is equally settled law that the promissory estop- pel  cannot  be used to compel the Government  or  a  public authority to carry out a representation or promise-which  is prohibited  by law or which was devoid of the  authority  or power of the officer of the Government or the public author- ity  to  make. We may also point out that  the  doctrine  of promissory  estoppel  being an equitable doctrine,  it  must yield  place  to the equity, if larger  public  interest  so requires, and if it can be shown by the Government or public authority,  for  having  regard to the facts  as  they  have transpired that it would be inequitable to hold the  Govern- ment  or public authority to .the promise or  representation made  by it. The Court on satisfaction would not,  in  those circumstances  raise the equity in favour of the persons  to whom  a  promise or representation is made and  enforce  the promise  or representation against Government or the  public authority. Equally Promissory estoppel should not be extend- ed, though it may be rounded on an express or implied  prom- ise stammed from 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  ap- pointment  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 Constitution. It would amount not only putting a premium on the fraud on  the Constitution, but also a denial to a reserved candidate  and the general candidate as well. Therefore, the plea of  prom- issory estoppel should not be extended to such areas. 845     Though Executive necessity is not always a good defence, this  doctrine cannot be extended to legislative acts or  to acts prohibited by the statute.     13. When it seeks to relieve itself from its application the  Government or the public authority are bound  to  place before the Court the material, the circumstances or  grounds on which it seeks to resile from the promise made or obliga- tion undertaken by insistence of enforcing the promise,  how the  public  interest would be jeopardised  as  against  the private interest. It is well settled legal proposition  that the private interest would always yield place to the  public interest.  The question, therefore, is whether  promise,  in fact,  was made by the Estate Manager on behalf of  the  re- spondent and whether the Estate Manager is competent to make such  a  promise and whether it binds  the  respondent.  The letter dated April 3, 1972 written by the Estate Manager  is a conditional one, namely, that on fulfilling certain condi- tions indicated in that letter he would make  recommendation to  the Board for grant of lease, condition precedent  being

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that the tenant would deposit the required sum of about  Rs. 11,000 and odd with the respondent. Undoubtedly, the tenants completed that part of the obligation. Thereafter admittedly it  was  placed before the Board, who  by  resolution  dated September 10, 1974 which is at page 228 to 237 of the  paper book,  considered  it, but was rejected on the  ground  that after  reconstruction the building would be required to  its staff.  Therefore, the decision has stemmed from its  execu- tive  necessity,  but  that ground by itself  would  not  be sufficient  unless  it is shown to the satisfaction  of  the Court  that as against the interest of the  private  tenants the interest of its employees is of such as absolute  impor- tance  that without allotment of the quarters to  the  staff the  work of the Port Trust cannot be carried out.  No  such material has been placed before us. But the crucial  circum- stance  would be whether an unequivocal promise in fact  was made and the Estate Manager was competent to make promise.     14.  In  Howell v. Falmouth Boat Construction  Co.  Ltd. [1951] A.C. 837 the 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  (Gener- al) 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 licenc- ing  authority  officer of the Admiralty. In  the  Court  of Appeal  Lord Denning, laid the rule of  promissory  estoppel that whenever Government Officers in the deal- 846 ings with the subject, take on themselves to assume authori- ty  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 authori- ty for it cited. The illegality of an act is the same wheth- er  or  not the actor has been misled by  an  assumption  of authority  on the part of a Government officer however  high or  law  in the hierarchy. I do not doubt that  in  criminal proceedings it would be a material factor that the actor had been thus misled if knowledge was a necessary element of the offence,  and  in any case it would have a  bearing  on  the sentence  to be imposed. But that is not the  question.  The question is whether the character of an act done in face  of a statutory prohibition is affected by the fact that it  has been induced by a misleading assumption of authority. In  my opinion  the answer is clearly No. Such an answer  may  make more  difficult  the task of the citizen who is  anxious  to walk in the narrow way, but that does not justify a  differ- ent answer being given." Lord Normand stated at page 849 thus: "But it is certain that neither a minister nor any  subordi- nate officer of the Crown can by any conduct or  representa- tion bar the Crown from enforcing a statutory prohibition or entitle  the  subject  to maintain that there  has  been  no breach of it."     In  Attorney  General for Ceylon v. A.D.  Silva,  [1953] A.C.  461  the  Privy Council was called  upon  to  consider whether  the Collector of Custom was authorised to create  a promise  as against the crown. Considering that question  at page 479 it was held that: "All "ostensible" authority involves a representation by the

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principal  as  to the extent of the  agent’s  authority.  No representation by the agent as to the extent of his authori- ty can amount to a "holding out" by the principal. No public officer,  unless he possesses some special power,  can  hold out on behalf of the Crown that he or some other public 847 officer has the right to enter into a contract in respect of the  property  of  the  Crown when in  fact  no  such  right exists.. Their Lordships think, therefore that nothing  done by  the Principal Collector or the Chief Secretary  amounted to  a holding out by the Crown that the Principal  Collector had  the  right to enter into a contract to sell  the  goods which are subject matter of this action." In Administrative Law by Wade, 6th Edition at page 385 it is stated thus: "If  the force of law is given to a ruling from an  official merely  because it is wrong, the official who has not  legal power  is in effect substituted for the proper  authority  , which is forced to accept what it considers a bad  decision. To  legitimate ultra vires 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  subordi- nate,  it must be established that the  subordinate  officer did in fact make the representation and as a fact. is compe- tent  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  inter- mediary to collect the material between the respondent  Port Trust and its tenants and to place the material for  consid- eration  .to  the Board. Thereby the Estate Manager  is  not clothed with any authority much less even ostensible author- ity  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  not  been satisfactorily  established,  we hold that the  doctrine  of promissory  estoppel in the light of the above facts  cannot be extended in favour of the appellant and other tenants.     16. Sri Tunara further submitted that the tenant did not derive  title, namely, lease-hold right from the  respondent Port  Trust under the Central Act. That the tenant  disputed the title and it is a sufficient defence under the  explana- tion to section 43 to non suit the respondent 848 in the summary proceeding. It was open to the respondent  to file  a  regular suit. The Small Cause Court ought  to  have rejected  the application on that ground and the High  Court would have gone into the question. It being a pure  question of law, this court may permit the appellant to argue on  the point  for the first time in this Court. It  is  undoubtedly true  as  held by catena of decisions of this Court  that  a pure question of law, untraveled by questions of fact, which goes to the roots of the jurisdiction. could be permitted to be raised for the first time in an appeal under Art. 136  of the Constitution. We are afraid. we cannot permit the appel- lant to raise this point for the following reasons:     Firstly,  except making a bald averment in  the  written statement  that the "suit is not maintainable"  nothing  has been pleaded in detail in the written statement.  Admittedly

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this point was neither taken in the writ petition nor argued in  the High Court. It is not even raised in the grounds  of appeal in this Court nor even in points raised in the synop- sis of the case, It is stated that remotely it was raised in the rejoinder. Since it is a mixed question of facts and law and  not being a pure question of law, we cannot  permit  to raise the point for the first time, that too, when it  would prejudice  the  respondent of their case at this  stage.  We accordingly  decline to go into the question. We would  also straighten  the record and state that the appellants  raised in the writ petition the vires of Sections 2, 3 and 4 of the Maharashtra  Amending  Act, 1963 introducing Sec.  42(A)  in Chapter  VII  of the Presidency Small Cause Courts  Act  and deleting Sections 45 to 47 from the Principal Act and of  an amended Sec. 49 thereof as well as Sec. 46(2) of the  Presi- dency  Small  Cause  Courts Act as  amended  by  Maharashtra Amendment Act of 1976 as offending Art. 14 of the  Constitu- tion, and unsuccessfully argued before the Division 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  earli- er, 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  elabo- rately 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.  There- fore, this Court could go through the judgment and deal with the point. We deprecate 849 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  when it  relates to the local laws is no proper decision  making. Therefore, after giving our anxious consideration, we,  with great  anguish. decline to go into the point. Except  these. no other points have been argued. Accordingly we do not find any merit in the appeal. 17. The appeal is dismissed. but in the circumstances  with- out costs. N.V.K.                               Appeal dismissed. 850