Judgment:
Bhaskar Bhattacharya, J.
1. This mandamus-appeal is at the instance of the State of West Bengal and others and is directed against order dated September 14, 2006 passed by a learned single Judge by which His Lordship passed an interim order directing that the earlier interim order dated August 31, 2006 passed by His Lordship should continue till the disposal of the writ-application.
2. By the earlier interim order dated August 31, 2006, His Lordship, on the very first date of moving the writ-application, passed an interim order to the effect that the existing arrangement regarding yearly allotment in favour of the writ-petitioner for bringing common salt in its plant as contained in the programme for the year 2005-06 should continue until further order.
3. The private respondent before us filed a writ-application being W.P. No. 1190 of 2006 thereby praying for the following relief:
(a) A Writ of and/or in the nature of Certiorari do issue calling upon the respondents and each of them to forthwith certify and transmit to this Hon'ble Court the records of the case culminating in the impugned threat not to allot the annual programme but to allot quarterly programme for bringing in common salt to the said plant of the petitioners, in violation of their earlier decision dated June 25, 1999 so that upon consideration thereof the same is quashed and conscionable justice is rendered to the petitioners;
(b) A Writ of and/or in the nature of Mandamus do issue commanding the respondents and each of them:
(i) to allot the annual programme zone-wise but not quarterly programme for bringing in common salt to the said plant of the petitioners, in violation of their earlier decision dated June 25, 1999;
(ii) to desist from giving any effect or further effect to or acting in terms of or pursuant to or in furtherance of the impugned threat not to allot the annual programme zone-wise but to allot, quarterly programme for bringing in common salt to the said plant of the petitioners, in violation of their earlier decision dated June 25, 1999 in any manner whatsoever;
(iii) to comply with the decision dated June 25, 1999 of the High Power Salt Committee and not to act in violation of the same;
(c) Rule Nisi in terms of prayers above;
(d) If no cause or insufficient cause is shown, the Rule be made absolute;
(e) Injunction restraining the respondents and each of them whether by themselves or their subordinates, agent, men or otherwise howsoever to desist from giving any effect or further effect to or acting in terms of or pursuant to or in furtherance of the impugned from giving any effect or further effect to or acting in terms of or pursuant to or in furtherance of the impugned threat not to allot the annual programme zone-wise but to allot quarterly programme for bringing in common salt to the said plant of the petitioners, in violation of their earlier decision dated June 25, 1999;
(f) Stay of operation of the impugned threat not to allot the annual programme but to allot quarterly programme for bringing in common salt to the said plant of the petitioners, in violation of their earlier decision dated June 25, 1999;
(g) Appropriate direction be given directing the respondents to comply with the decision of the High Power Salt Committee and to allot annual programme zone-wise to the petitioners;
(h)Ad interim order in terms of prayers above;
(i) Such further or other order or orders be made and/or direction or directions be given as to this Hon'ble Court may deem fit and proper;
4. In the said writ-application, the State of West Bengal was made the respondent No. l; Food Commissioner, Department of Food & Supplies, Government of West Bengal was made respondent No. 2; the Director of Non-Cereal Essential Commodities, Government of West Bengal was made respondent No. 3; Salt Commissioner, Government of India and Assistant Salt Commissioner were made respondent Nos. 4 and 5 respectively.
5. The case made out by the writ-petitioner may be summarised thus:
(a) The writ-petitioner is a registered small-scale unit registered with the Directorate of Cottage and Small Scale Industries, Government of West Bengal and carries on business as manufacturers of iodised salt.
(b) Presently, the entire State of West Bengal has been declared as a Goitre Endemic area and sale of salt other than iodise salt is prohibited in the entire State of West Bengal under the provisions of Prevention of Food and Adulteration Act.
(c) There was no iodised salt plant in the State of West Bengal and in the year 1989, the writ-petitioner set up an iodised salt plant at Rupnarayanpur, a backward area in the district of Midnapore.
(d) The production of salt in the State of West Bengal is negligible and most of the iodised salt consumed in this State is brought from other surplus States which belong to three regions; West, South and North.
(e) Previously, there was no guideline for allotment of railway rakes for bringing salt from other surplus States and in view of various conflicting orders passed by this High Court, a Division Bench of this Court formed a High Power Salt Committee comprising of the Food Commissioner, the Director of Consumer Affairs, both of the Government of West Bengal and the Assistant Salt Commissioner, Government of India, Kolkata and the said Committee was entrusted with the power and duty to recommend programmes for allocation of railway rakes to the importers based on their needs. The matter ultimately went up to the Hon'ble Supreme Court and the Hon'ble Supreme Court was pleased to approve the formation and the authority of the said Salt Committee.
(f) The High Power Salt Committee approved by the Hon'ble Supreme Court is the ultimate authority for sponsorship of railway rakes for movement of the salts from other surplus states/zone to the State of West Bengal. The said Salt Committee sponsored railway rakes to the Salt Commissioner who is to implement the same. The Salt Commissioner is duty bound to take up the matter with the Railway Authority and to implement such programme recommended and sponsored by the said Salt Committee. Neither the Salt Commissioner nor the Railway Authority has any discretion in the matter and they were merely implementing authorities.
(g) Initially, the said Salt Committee started issuing 12 B.G. Rakes to the writ-petitioner No. l every year; however, the programme was changed and the allotment was made quarterly which affected the running of the said iodisation plant of the writ-petitioner and upon representation being made, the said Salt Committee was pleased to recall the changed programme and. maintained the previous programme to the writ-petitioner No. 1 and accordingly the petitioner No. 1 was allotted yearly programme of 12 B.G. Rakes.
(h) However, the committee again decided to change the programme of the writ-petitioner and reverted the allotment of the petitioner to quarterly basis. In view of the quarterly programme recommended or sponsored by the High Power Salt Committee,, the same resulted in non-availability of raw material apart from the fact that other ancillary works had to be kept closed due to establishment costs.
(i) The petitioner made representation for allotting yearly programmes as done for the last six years but recently the Committee had rejected the prayer of the writ-petitioner and has decided to pass order for allotment on quarterly basis.
(j) Hence the writ-application.
6. As indicated earlier, on the first day of moving the said writ-application, the learned single Judge, after hearing the learned advocate for the writ-petitioner and the Union of India, directed that the matter should appear on the next Friday and until further order, the previous arrangement regarding yearly allotment as contained in the programme for the year 2005-06 should continue. The leave was granted to the writ-petitioner to file supplementary affidavit.
7. On the next day, when the matter came up for hearing, the learned single Judge by order dated September 14, 2006 extended the interim order till the disposal of the application with further direction that the affidavit-in-opposition should be filed within one week after the reopening of the Court after the Annual Vacation and the reply, if any, within two week thereafter with still further direction that the matter should appear as 'Adjourned Motion' three weeks after the Vacation.
8. Being dissatisfied, the State of West Bengal along with the Food Commissioner and the Director of Non-Cereal Essential Commodities, Government of West Bengal have come up with the present mandamus-appeal.
Mr. Sarkar, the learned advocate appearing on behalf of the appellants has severely criticised the order passed by the learned single Judge.
9. According to Mr. Sarkar, the learned single Judge acted illegally and with material irregularity in granting interim order till the disposal of the writ-application even before the appellants were given-opportunity to file any affidavit-in-opposition to the main writ-application. Mr. Sarkar points out that on 31st August, 2006, the initial interim order was granted and on that date, the State was merely directed to take instruction; but on the next date, when the learned advocate for the State vehemently raised objection to grant of any interim order, before passing even a direction for filing affidavit-in-opposition, the learned single Judge extended the ad interim order of injunction earlier granted by directing the parties to restore status quo ante till the disposal of the writ-application.
10. Mr. Sarkar next contends that the new scheme having been framed by the Committee on 28th March, 2006 thereby directing quarterly allotment in favour of the writ-petitioner, there was no justification for passing an interim order postponing the scheme already framed six months ago. Mr. Sarkar, therefore, prays for setting aside the order passed by the learned single Judge.
11. Mr. Pal, the learned senior advocate appearing on behalf of the writ-petitioner, has opposed the aforesaid contentions advanced by Mr. Sarkar and has contended that the learned single Judge in the facts of the present case did not commit any illegality in passing the order of status quo that continued from 1999. Mr. Pal contends that the so-called new decision of the Committee dated 28th March, 2006 was never communicated to his client and at the same time, no opportunity was given to his client to make submission on the proposed change in programme.
12. Mr. Pal further contends that the appellants cannot be prejudiced in anyway by the order passed by the learned single Judge as the appellants have no role to play in the matter of allotment of railway rakes. Mr. Pal further submits that the learned single Judge in the facts of the present case rightly applied the doctrine of legitimate which expectation directing continuance of supply of allotment as per order which was in vogue for the last seven years. Mr. Pal, therefore, prays for dismissal of the present appeal.
13. After hearing the learned Counsel for the parties and after going through the materials on record we are of the view that the order impugned should be set aside simply on the ground that no interim order till the disposal of the writ-application could be passed by the learned single Judge before giving an opportunity of filing written objection to the prayer of interim order to the State-respondent. We have already pointed out that on the first day, namely, August 31, 2006, the learned single Judge merely directed the State-respondent to take instruction and before passing any direction for filing written objection to the writ-application, decided to extend the interim order till the disposal of the writ-application on the very next day by permitting the writ-petitioner to take benefit of earlier programme which had already been changed five months ago on 28th March, 2006.
14. Apart from the aforesaid fact, in our view, the writ-petitioner even failed to prove a strong prima facie case to have an order of injunction which is in the nature of restoring status quo ante. It is true that from the year 1999, the allotment in favour of the writ-petitioner was made on annual basis. By its resolution dated 28th March, 2006, the Committee decided to issue quarterly allotment instead of annual allotment. The representation of the writ-petitioner to consider the change of allotment was apparently dismissed; whether such decision the opportunities of hearing to the appellants but before taking decision on merit, the learned single Judge could not pass a direction thereby virtually setting aside the new scheme framed by the Committee in the month of March, 2006.
15. We are of the view that the writ-petitioner has no legal or fundamental right to have an annual allotment of the quota. The Committee had merely directed that there would be quarterly allotment instead of the annual allotment enjoyed by the writ-petitioner for the last seven years. By such quarterly allotment, none of the legal rights of the writ-petitioner has been curtailed and therefore, prima facie there has been no infringement of the right of the writ-petitioner so as to maintain a writ-application challenging the decision of the Committee vested with the power to frame scheme in this regard against whom no material has been placed showing that the decision dated March 28, 2006 was tainted with malice or animosity against the writ-petitioner.
16. We, therefore, find that in the absence of even prima facie case the learned single Judge directed grant of interim order in the nature of mandatory form. The balance of convenience and inconvenience in this type of a matter is generally in favour of refusing the prayer of injunction and it cannot be said that if quarterly allotment instead of annual allotment is given, the writ-petitioner would suffer irreparable loss and injury.
17. Therefore, the learned single Judge passed the order impugned by not following the well-settled principles which are required to be followed while granting an interim order of the present nature. The object of grant of interim order is to maintain status quo but not to restore status quo ante which was in force in the month of March, 2006. Virtually, the entire relief claimed in the writ-application was obtained by the writ-petitioner by way of interim order before passing direction for filing affidavit. It is now settled law that the relief which can be granted only at the final stage should not ordinarily be granted by way of interim order (See: State of U.P. v. Desk Raj reported in : 2006CriLJ2108 ) and that too, in the form of status quo ante.
18. As regards the plea of Mr. Pal based on legitimate expectation, we are of the view that, at the stage of grant of interim order before the respondents are called upon to file affidavit, the petitioner cannot be favoured with an interim order of mandatory form solely on the basis of legitimate expectation based not on any promise but simply on the basis of past practice. At this juncture, it will not be inappropriate to refer to the following observation of the Apex Court in the case of Bannari Amman Sugar Ltd. v. Commercial Tax Officer, reported in : (2004)192CTR(SC)492 :
As was observed in Punjab Communications Ltd. v. Union of India, the change, in policy can defeat a substantive legitimate expectation if it can be justified on 'Wednesbury reasonableness'. The decision-maker has the choice in the balancing of the pros and cons relevant to the change in policy.
It is, therefore, clear that the choice of policy is for the decision maker and not the Court. The legitimate substantive expectation merely permits the. Court to find out if the change of policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. A claim based on merely legitimate expectation without anything more cannot ipso facto give a right. Its uniqueness lies in the fact that it covers the entire span of time; present, past and future. How significant is the statement that today is tomorrow's yesterday. The present is as we experience it, the past is a present memory and future is a present expectation. For legal purposes, expectation is not same as anticipation. Legitimacy of an expectation can be inferred only if it is founded on the sanction of law.
As observed in Attorney General for New Southwales v. Quinn to strike the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the Courts a draft on a featureless sea of pragmatism. Moreover, the negotiation of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law. If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or violation of principles of natural justice, the same can be questioned on the well-known grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the grounds to consider, but the Court must lift the veil and see whether the decision is violative of these principles warranting interference. It depends very much on the facts and the recognised general principles of administrative law applicable to such facts and the concept of legitimate expectation which is the latest recruit to a long list of concepts fashioned by the Courts for the review of administrative action must be restricted to the general legal limitations applicable and binding the manner of the future exercise of administrative power in a particular case. It follows that the concept of legitimate expectation is 'not the key which unlocks the treasure of natural justice and it ought not to unlock the gates which shut the Court out of review on the merits', particularly, when the elements of speculation and uncertainty are inherent in that very concept. As cautioned in Attorney General for New Southwales case 19 the Courts should restrain themselves and respect such claims duly to the legal limitations. It is a well-meant caution. Otherwise, a resourceful litigant having vested interest in contract, licences, etc. can successfully indulge in getting welfare activities mandated by directing principles thwarted to further his own interest. The caution, particularly in the changing scenario becomes all the more important.
19. Therefore, simply on the basis of legitimate expectation not based on any promise but on past practice without anything more, a writ-petitioner cannot expect to get an interim order restoring status quo that existed five months prior to moving the writ-application before the respondents are directed to file affidavit.
20. We are also not impressed by the submission of Mr. Pal that the appellants are not prejudiced in anyway by the order impugned. Two of the appellants are the members of the Committee constituted by this Court and constitution of such Committee has been approved by the Supreme Court. Therefore, the appellants are definitely aggrieved persons and the present mandamus-appeal is maintainable at the instance of the appellants. As the appellants are necessary parties, the writ-petitioner made them parties in the writ-application. Moreover, the question of prejudice of the respondent is inconsequential for grant of interim order if the applicant fails to prove a prima facie case. Therefore, we find no substance in the aforesaid contention of Mr. Pal.
In view of what have been stated above, we find that the order passed by the learned single Judge should be set aside. The appeal is accordingly allowed. Since the affidavit-in-opposition to the main writ-application by this time has already been filed, we request the learned single Judge to dispose of the writ-application as expeditiously as possible.
The observations made by us herein are all tentative for the purpose of disposal of the present appeal preferred against grant of ad interim order and will not binding upon the parties at the time of disposal of the writ-application.
The appeal is, thus, allowed with costs which we assess at Rs. 10,000/- (ten thousand).
Rudrendra Nath Banerjee, J.
21. I agree.