In a well-written, well-articulated, well-reasoned and well-justified judgment titled Najma vs Govt of NCT of Delhi in W.P.(C) 8956/2020 that was reserved on 21st May, 2021 and then finally delivered on 22nd July, 2021 by a Single Judge Bench of Justice Prathiba M Singh of Delhi High Court, it has been held that a promise or assurance given by the Chief Minister in a press conference amounts to an enforceable promise and that a CM is expected to exercise his authority to give effect to such a promise. It must be apprised here that the Court was dealing with a petition filed by daily wage labourers/workers who were unable to pay their monthly rent, to seek enforcement of a promise made by the Delhi CM Arvind Kejriwal dated 29th March, 2020. Justice Prathiba made it clear that the Chief Minister cannot first make a “clear and unequivocal oral assurance” and then fall silent when it comes to its implementation. The Judge directed the Delhi government to take a decision within six weeks whether to implement the promise made by Chief Minister Kejriwal on March 29, 2020, bearing in mind the larger interest of the persons to whom the benefits were intended to be extended.
To start with, the ball is set rolling in para 1 of this latest, learned, laudable and landmark judgment authored by a Single Judge Bench of Justice Prathiba M Singh of Delhi High Court wherein it is put forth that, “The saying `Promises are meant to be broken’ is well known in the social context. However, law has evolved the doctrines of legitimate expectation and promissory estoppel to ensure that promises made by the Government, its officials and other authorities are not broken and are, in fact, judicially enforceable, subject to certain conditions.”
While specifying the purpose of the petition, the Bench then enunciates in para 2 that, “The present petition has been filed by the Petitioners to seek enforcement of the promise made by the Chief Minister of Delhi (hereinafter, “CM”) on 29th March, 2020. Petitioner Nos. 1 to 3, 5 and 6 are daily wage labourers/ workers, who claim to be tenants who are unable to pay their monthly rent, and Petitioner No.4 is stated to be a landlord who hasn’t been able to receive the monthly rent from his tenant. Both sets of Petitioners seek recovery/payment/refund of the monthly rental amount, as per the promise made by the CM.”
While elaborating on the petitioners case, the Bench then brings out in para 3 that, “The case of the Petitioners is that the CM gave a press conference on 29th March 2020, in the wake of the COVID-19 pandemic, in which he requested all landlords to postpone the demand/collection of rent from those tenants who are poor and poverty stricken. In the backdrop of instances of landlords forcing tenants to make payments of their rent, while requesting landlords to talk to their tenants and postpone the collection of rents, it is alleged that the CM, in the press conference, had made a clear promise that if any tenant is unable to pay the rent due to poverty, the Government would pay his/her rent on their behalf. According to the Petitioners, a solemn assurance was given that the Government would take care of the tenants. The translation of the speech that was annexed by the Petitioners, at Annexure P-1 of the Writ Petition, was not accurate. Accordingly, this court called for an official translation of the said speech from the Delhi High Court (Translation branch). The Official translation of the speech given by the CM in the press conference, reads as under:
“A few days ago, I had asked the landlords to postpone the rent of impoverished tenants unable to pay rent for 2-3 months and not take immediate payment.
Today, I am appealing to you and the landlords of entire Delhi- if you consider me your son or brother then all the landlords must talk to their tenants and ask them to rest assured that you are with them and won’t force them to pay rent. Today, all of you must go and give assurance to them.
There has been news from some places that a few landlords are forcing their tenants due to which they are evacuating and leaving. Please don’t force them. Kindly postpone their rent.
In a month or two when this Corona and let’s assume after this entire mess is over, if a tenant has been unable to pay rent due to poverty, I assure you the Government will pay for it. I am talking about those tenants who may be unable to pay some of their rent due to lack of means.
However, no landlord will force them right now and if they do so then the Government will take strict action against them.”
It is this assurance that the Petitioners are seeking to judicially enforce through this writ petition, as the CM has allegedly failed to deliver on the said assurance/promise made in the press conference.”
In hindsight, the Bench then discloses in para 26 that, “The present writ petition was preferred in November, 2020 by four Petitioners namely Ms. Najma, Ms. Nirmala Savita, Ms. Rashidhan and Mr. Karan Singh. The Respondents arrayed in this petition were the GNCTD, through its Chief Secretary, and the CM, who was impleaded by his name. In the writ petition it is claimed that the Petitioners are either tenants or landlords to whom the CM had made a promise in the press conference held on 29th March, 2020, which was four days after the nationwide lockdown came into effect on 25th March, 2020. Vide order dated 17th December 2020, two more Applicants namely Ms. Rehana Bibi and Ms. Pooja were impleaded as Petitioner Nos. 5 and 6 in this writ petition.”
It is worth mentioning here that the Bench then brings out in para 27 that, “In the writ petition, there are some examples that have been given of persons who were living in slum areas and were evicted by the landlords and some who vacated their rented premises voluntarily. It is also claimed that Petitioner No. 3 took a huge amount of loan through formal and informal channels to pay off her rental debt during the COVID-19 pandemic. Letters are claimed to have been written to the Chief Minister Public Grievances Redressal Help Desk on behalf of several tenants and landlords, including the Petitioners. However, apart from merely forwarding the said emails to the Principal Secretary, Home of GNCTD by the OSD to the CM, no further action was taken on the same. The representations sought to ask the CM to adhere to his promise and pay outstanding the rent. However, the only reply that was received is an email which forwarded the representation from the Office of the CM to the Office of the Principal Secretary, Home Department, GNCTD. The contents of the said email dated 22nd September 2020, are as under:
“Sir,
This email, received at CM’s official email ID is being forwarded for your kind perusal and appropriate necessary action at your end.
Regards,
Rajeev Gupta
O.S.D. to Chief Minister, Delhi”.”
What is quite glaring is then stated in para 28 along with prayer made that, “It is claimed in the writ petition that not only have the Respondents not honoured the promise made by the CM in the press conference, but in fact none of the communications sent by the Petitioners and similarly situated individuals to the Government were even responded to. Accordingly, the present writ petition has been filed by a few of the aggrieved landlord and tenants, with the following prayers:
“a. Pass an appropriate writ of mandamus or order directing the Government of NCT of Delhi (R1) to honour the promise made by its Chief Minister (R2) on 29.03.2020.
b. Make the above writ or order, if in favour of the Petitioners, applicable to the people who have already written to R2, and other tenants and landlords placed in a situation similar to that of Petitioners.”” Be it noted, the Bench then observes in para 90 that, “The principles governing the doctrines of legitimate expectation and promissory estoppel are well settled. Both these doctrines primarily recognize the role of the State or the Governmental authorities vis-a-vis the public. They are a reflection of the legal recognition being accorded to the trust that citizens repose on promises/assurances/representations which are made by Constitutional functionaries and governmental authorities, especially in times of distress. The raison d’être for granting recognition to such assurances/promises/representations, is that such functionaries and authorities, who are either elected to public positions or who hold positions of power, are answerable to the people, especially once they undertake or agree to do or not to do a particular thing.”
It is then clarified in para 91 that, “The said two doctrines are not absolute in nature. There are various conditions that need to be satisfied for legal enforcement of rights claimed under these doctrines. There are also well recognized exceptions, which can be relied upon for not enforcing such promises/assurances/representations. The question as to whether a promise/assurance/representation results in a legally enforceable right and if so, what would be the relief that a Court can grant, depends upon the factual circumstances of each case and the context in which the said promises/assurance or representations have been made by the Governmental authorities.”
To be sure, the Bench then observes in para 92 that, “The present petition is being decided in the backdrop of the COVID19 pandemic. The pandemic resulted in severe economic, social and medical distress to people across the world and the citizens of India and the residents of Delhi were no exceptions. The fear of the pandemic, which, at the initial stage, was conceived to be an urban phenomenon, resulted in mass migration and exodus of workers, labourers and other blue collared employees who had migrated to cities from their towns and villages, to leave the urban areas. The mass movement was to such a great extent that people were travelling on foot for a continuous period of several days to reach their respected homes and to be closer to their near and dear ones. Governmental authorities faced enormous criticism for having not provided adequate transportation and other facilities, to enable these migrants to have a seamless journey to their destinations. In this context, several schemes, were announced assuring free food, free shelter, free transportation, free medical help, ex-gratia payments etc. Apart from the governmental authorities, various organizations and individuals played a praiseworthy role in extending such facilities to migrant labourers.”
Of course, the Bench then concedes in para 93 that, “The judicial enforceability of the assurance and promise made by a Constitutional functionary, such as the CM, needs to be considered by the Court both in letter and in spirit, in the aforesaid context. The assurance given or the promise made in the present case was obviously with a view to stop or curb the migration of people from Delhi, to the extent possible. The actual effect of the promise or the assurance is beyond the scope of the present writ petition, inasmuch as there is no clarity as to whether the assurance resulted in tenants staying back. However, this Court cannot be dismissive of the fact that the Petitioners, who are before the Court, claim to have acted on the promise or the assurance made by the CM. It would not be unreasonable to presume that some tenants and landlords may have altered their positions based upon the assurance given by the CM. It is in this background that this Court has to examine whether the assurance/promise made by the CM would be enforceable.”
Simply put, the Bench then envisages in para 94 that, “The various judgments, which have been discussed above, show that there are different categories of cases which have been decided on this issue, both internationally and in India. For example, in the Queen (on the application of Manik Bibi and Ataya Al-Nashed) (supra) relating to the provision of housing for the underprivileged and homeless, Courts have, to some extent, recognized that the governmental policy would have to be enforced and consideration for housing would have to be provided in accordance with the said policy. In the said case, the court, importantly recognised that even when a public authority decided to renege from its promise/ assurance/ representation, the least that would be expected, before reneging on the promise, is due consideration by the government and adequate, legally valid reasons to not abide by the same. Further, in the case of Ng Yuen Shiu (supra), the Privy Council recognized the requirement of a fair inquiry for an immigrant prior to repatriation. Thus, the concepts of legitimate expectation and promissory estoppel have been translated by English Courts to mean a fair inquiry, a fair hearing as also a proper procedure being followed while making decisions that affect the public, failing which the action of the governmental authorities in not honouring the promise/ assurance/ representation given, would be held to be arbitrary and violative of the citizens’ rights.”
Significantly, the Bench then points out in para 95 that, “In the Indian context, the doctrines have been expanded further as is clear from Manuelsons Hotels (supra) and Brahmaputra Metallics (supra). The Indian decisions which have been discussed above, can be categorized into three broad categories:
• The first category of cases are where there is a clear governmental policy, which is sought to be changed, and the legitimate expectation of those who were covered under the previously existing policy is in question. In this category of cases, the Courts have, as in Brahmaputra Metallics (supra), held that the benefits of the policy would have to extend to the commercial society or individual concerned.
• The second category of cases are those where the initial assurance/promise given by a State functionary or a Governmental authority was, thereafter, translated into a specific policy, which again was enforced by the Courts as in Motilal Padampat (supra). Nestle India (supra) and Manuelsons Hotels (supra).
• The third category of cases are those cases where an oral assurance/promise which was made was not implemented by a conscious policy decision, that was taken in public interest due to adequate reasons that were shown. The decisions in Nezone Law House (supra) and All Tripura Book Sellers & Publishers Association (supra), would fall under this category.”
More significantly, the Bench then hastens to add in para 96 that, “The factual background of the present case, however, shows that this case would fall in a fourth category – i.e., where a clear and unequivocal oral assurance and promise is made by the CM of the GNCTD but there is no policy whatsoever, placed before the Court. The salient facts and features of the present case are:
(1) Exceptional circumstances of the COVID-19 pandemic.
(2) Extreme distress being faced by migrant labourers and blue-collar workers and employees.
(3) A clear promise/assurance made by the CM.
(4) No positive policy to implement the said promise/assurance given by the GNCTD.
(5) No contrary policy implemented by the government, placed before the Court.
(6) No decision taken to not implement the said promise/assurance that was given by the CM.
(7) The exception of public interest having not been invoked for the non-implementation of the promise/assurance.”
Quite convincingly, the Bench then observes in para 97 that, “Thus, the question that arises is as to what should be the conduct of the Government, in the context when a senior functionary like the CM gives a promise/assurance to the public, which is categorical, unequivocal and unambiguous. Can the Government be permitted to stay silent and leave the said promise/assurance in the public record, without taking a decision, either positively towards implementing it, or without taking a decision not to implement the same, for any reasons whatsoever? In the opinion of this court, such inaction would not be permissible when clearly the making of the promise/assurance by the CM is not in doubt, and is in fact admitted by the GNCTD.”
It cannot be just glossed over that the Bench then remarks in para 98 that, “The doctrines of promissory estoppel as also legitimate expectation are based on the axiom that the people trust the government. In a democratic setup, persons who hold an elected office, and especially heads of government, heads of State and those holding responsible positions are expected to make responsible assurances/promises to their citizens, especially in times of crisis and distress. On behalf of the citizens, there would obviously be a reasonable expectation, that an assurance or a promise made by a senior Constitutional functionary, not less than the CM himself, would be give effect to. It cannot be reasonably said that no tenant or landlord would have believed the CM. As per the normal conduct as also the context of the COVID-19 pandemic, surely there must have been a large number of tenants and landlords, who would have believed the assurance made by the CM. If the GNCTD had actually come out with a policy either deciding to not implement the said promise or assurance on grounds which are legally sustainable, obviously the Courts cannot interfere. However, even applying the basic Wednesbury principles, the decision making, after the promise was made, ought not to be an arbitrary one. The said principle has also been settled by the Supreme Court in the case of Brahmaputra Metallics (Supra), where the Supreme Court clearly recognised the fact that a reasoned decision ought to be taken on the legitimate expectation of the citizens by the Government, for the said decision to be reasonable, non-arbitrary and in accordance with Article 14 of the Constitution.”
What also cannot be just glossed over is then further stated in para 99 that, “In the present case, in the backdrop of the commitment made, it is not the positive decision making which is arbitrary, but the lack of decision making or indecision, which this Court holds to be contrary to law. Once the CM had made a solemn assurance, there was a duty cast on the GNCTD to take a stand as to whether to enforce the said promise or not, and if so on what grounds or on the basis of what reasons. The Supreme Court has recognised and granted relief in the context of commercial matters such as tax exemptions, grant of incentives etc.. In the present case, the nature of rights are of even greater importance as they relate to the Right to Shelter during a pandemic. In the context of upholding Fundamental Rights, the principles of legitimate expectation have to be accorded a higher pedestal and the burden on the authority concerned not to honour the same, is even higher.”
Adding more to it, the Bench then observes in para 100 that, “It cannot be held that there was no expectation or anticipation by the citizens that the CM’s promise would be given effect to. The doctrine of promissory estoppel also being an equitable doctrine, equity requires this Court to hold the GNCTD responsible for the said indecision or lack of action, on the promise/assurance given by the CM.”
Quite relevantly, the Bench then makes it clear in para 101 that, “Most of the decisions, which are relied upon by the parties concerned, relate to the categories which have been set out hereinabove, where there has been a contrarian decision or a policy that has been announced, be it contrary to the promise/ assurance made or implementing the promise/assurance which has been made. In the present case, however, it is not clear as to why the GNCTD chose to completely disregard the promise or assurance given by its CM and not effectuate the same. A statement given in a consciously held press conference, in the background of the lockdown announced due to the pandemic and the mass exodus of migrant labourers, cannot be simply overlooked. Proper governance requires the Government to take a decision on the assurance given by the CM, and inaction on the same cannot be the answer. The expectation of the citizens could be that the Government would implement the promise, however, when this Court is examining this promise and the expectation that comes with it, the question is whether there is any reason as to why the Government did not even take a decision in this regard. To that extent, insofar as the indecision is concerned, the GNCTD needed to answer the question, which it has failed to answer.”
Needless to say, the Bench then holds in para 102 that, “While the Courts cannot assume the discretion which exists with the Governmental authorities, the authorities also ought to follow the rule of reason. There has to be a reason as to why the Government has simply chosen to disregard or failed to implement the promise/assurance given by the CM.”
Quite pertinently, the Bench then rightly underscores in para 103 that, “The said assurance is not a political promise, as is sought to be canvassed before this Court. It was also not made as a part of an election rally. It is a statement made by the CM of the GNCTD. There is a reasonable expectation on behalf of the citizens that the CM knows the background, in which such a promise is being made, the number of people who would be affected by the same as also the financial implications of such a promise/assurance, in the context in which it was made. The statement was not made by a Government functionary at a lower level in the hierarchy, who could be devoid of such knowledge. The CM is expected to have had the said knowledge and is expected to exercise his authority to give effect to his promise/assurance. To that extent, it would not be out of the place to state that a reasonable citizen would believe that the CM has spoken on behalf of his Government, while making the said promise. The said promise was to act as a balm on the wounds of landlords and tenants, who were severely affected as a class of citizens in Delhi. However, the lack of any decision to implement, or a conscious reasoned decision not to implement, has resulted in non decisionem factionem in respect of the legitimate expectation of its citizens. The statements made by persons in power are trusted by the public who repose faith and believe in the same. Thus, “puffing” which may be permissible in commercial advertising, ought not to be recognisable and permissible in governance.”
Most significantly, the Bench then holds in para 108 that, “While there can be no doubt as to the propositions laid down in these two judgments, the question that arises in this case is as to whether the statement made by the CM can be completely ignored and can be held to be not binding on the GNCTD. The CM and the Council of Ministers are to aid and advise the Governor in the exercise of his functions, and an assurance given by the CM, in a press conference, i.e., a public platform, even without resulting in a formal policy or an order on behalf of the GNCTD, would create a valuable and legal right by applying the doctrine of promissory estoppel. Further non-consideration of the same can definitely be tested on the ground of arbitrariness due to the doctrine of legitimate expectation being applicable. Thus, it cannot be said that merely because of the fact that the conduct of the business of the Government has to be in the name of the Governor, the CM can be shorn of all the responsibilities. Even, in the well-known treatise titled, “Principles of Administrative Law”, authors Prof. M.P. Jain and S.N Jain have elucidated upon the significance of the doctrine of promissory estoppel, in the context of promises made by an administrator, by observing:
“The significance of the doctrine of promissory estoppel is great in the Administrative Law of today. In India, the question whether the doctrine of promissory estoppel applies against the Administration in a specific fact-situation arises quite frequently. The reason is that with the vesting of large discretionary powers with the Administration, it has become increasingly common for it to make advance pronouncements regarding the manner in which it would exercise its discretion, or interpret the law, before an occasion to do so in a particular case actually arises. It may also give opinion or render advice to a particular individual as to how it proposed to exercise its power in a particular factual scenario. Sometimes the administrator makes promises or announces schemes or policy decisions to be followed by him in the future.” (M.P. Jain and S.N. Jain, “Principles of Administrative Law” [2017, Lexis Nexis Publications, 8 edn. Vol. 2) Pg. 1536)].
In this background, this court is of the opinion that the promise/assurance/representation given by the CM clearly amounts to an enforceable promise, the implementation of which ought to be considered by the Government. Good governance requires that promises made to citizens, by those who govern, are not broken, without valid and justifiable reasons.”
No less significant is what is then stated in para 109 that, “While holding that the assurance/promise given by the CM is enforceable, both on the basis of the doctrines of promissory estoppel and legitimate expectation, the relief would have to be moulded keeping in mind the various factors as set out below:
• Firstly, the assurance given by the CM has to be considered by the Government and a decision has to be taken whether to implement or not implement the same;
• Secondly, the bonafides of the said Petitioners need to be verified. The material particulars in respect of each of the Petitioners, the premises which they have either rented out or have taken on rent, the amounts which they had paid during the lockdown period, the loans which have been taken etc., would need to be verified. Further, owing to the decision of the ld. Division Bench in Gaurav Jain (supra) this Court is also concerned about the bonafides of the Petitioners themselves owing to the lack of material particulars.
• The pleadings in the present case, especially the rejoinder, also gives an impression to this Court that the intention is to sensationalize the issue rather than to actually seek redressal of a grievance.”
Finally, the Bench then holds in para 110 that, “In view of the above factual and legal discussion, the following directions are issued:
i. The GNCTD would, having regard to the statement made by the CM on 29th March, 2020, extracted in paragraph no. 3 above, to landlords and tenants, take a decision as to the implementation of the same within a period of 6 weeks;
ii. The said decision would be taken, bearing in mind the larger interest of the persons to whom the benefits were intended to be extended in the said statement, as also any overriding public interest concerns.
iii. Upon the said decision being taken, the GNCTD would frame a clear policy in this regard.
iv. Upon the said decision being taken, if a Scheme or Policy is announced, the Petitioners’ case be considered under the said Scheme/Policy as per the procedure prescribed therein, if any. Remedies against any decision taken are left open.”
In essence, this brief, brilliant, bold and balanced judgment by a Single Judge Bench comprising of Justice Prathiba M Singh of Delhi High Court has sought to make it absolutely clear that Chief Minister’s promise in press conference is enforceable. Justice Prathiba has directed the Delhi Chief Minister Arvind Kejriwal to implement the promise/assurance that he had given in a press conference. Kejriwal is thus now obliged to obey accordingly unless the decision is overturned by a Division Bench or by the Apex Court! The long and short of this notable judgment definitely is that all the Chief Ministers must adhere always to this to save themselves from litigations in future: Speak only that much in press conference which can be actually implemented and not more!
Sanjeev Sirohi