The Judgment of the Court was delivered by

S.B Sinha, J.:— These two appeals having arisen out of the same judgment were taken up for hearing together and are being disposed of by this common judgment. CO. No. 17201(W) of 1992, out of which M.A.T No. 762 of 1998 arises, was filed by 48 persons claiming themselves to be the members of Rishi Aurobindo Co-operative Housing Society Limited, a Society registered under the West Bengal Co-operative Societies Act (respondent No. 7). M.A.T No. 555 of 1998 arises out of a/writ application filed by 19 persons on the selfsame ground. The basic fact of the matter would be noticed from the writ application of Sital Prasad Mitra & Ors. The said writ petition was filed by the petitioners claiming themselves to be the representatives of the respondent No. 7 - Society claiming, inter alia, the following reliefs:—

(a) A declaration to the effect that the impugned order No. 2713-SPA dated 16th October, 1990 of the Secretary, Metropolitan Development Department, Government of West Bengal being Annexure “Q” to the present writ application, is improper, arbitrary, illegal, unconstitutional and violative of Article 14 of the Constitution of India;

(b) A writ or direction and/or order in the nature of Mandamus commanding the respondent authorities to allot in favour of the petitioners, through the respondent Society such quantity of lands as ensures the availability as well as allotment of ⅔ cottah individual plots of land in favour of each of the_ petitioner for the purpose of construction of their individual residential houses thereupon;

(c) A writ or direction and/or in the nature of Mandamus also commanding the respondent Society to stop proceeding with the construction of multi storeyed apartments on any land allotted in its favour by the respondent authorities.

2. It is an admitted fact that the said respondent No. 7 was constituted with 19 members. Keeping, however, in view the object of the said Society various persons intended to become members thereof.

3. From a perusal of one of the receipts, to which our attention has been drawn by Mr. Mahapatra, learned counsel appearing on behalf of the appellants, it appears that by way of a sundry advance of a sum of Rs. 3,907/- was deposited with the said respondent on 24th August, 1993. The said receipt contains a seal stating “the received money will be refunded without any interest in case of non-allotment of land for any obvious reason.” The appellants contend that the respondent No. 7 pursued the matter with the Government and 360 plots were allegedly delineated for the purpose of allotment to each of the members, lands to the extent of ⅔ cottahs. It was further alleged that permissive possession had been given to the members of the said Society pursuant to or in furtherence of the alleged promise made by or on behalf of the State by some officers. From one of the representations filed by the said respondent No. 7 it appears that a grievance was made that although, allegedly, a plan was approved delineating 361 plots of two cottahs of land in each plot in favour of the Society, Only 20 bighas of land have been allotted by a letter dated 9.4.87 The said representation dated 5.2.88 is contained in Annexure “S” to the writ application.

4. As the said representation, along with other representations had not been considered a writ petition was filed before this Court and a learned Judge, by an order dated 9th March, 1990 passed in CO. 5392 (W)/87, directed as follows:—

“In view of the chequered career of this case, the Secretary, Metropolitan Development Department, is directed to hear the representation of the respondent-Society as well as the Executive Engineer (Design), Salt Lake Reclamation & Development Circle at the time of disposal of the aid representation referred to hereinabove.

The Secretary, Metropolitan Development Department is also directed to give reasons in the event the Secretary is not in a position to accede to the prayer of the writ petitioners and the respondent-Society.

The writ petition is thus disposed of.”

5. Pursuant to or in furtherence of the said representation the Secretary of the Metropolitan Development Department gave an opportunity of hearing to the writ petitioners and rejected the said representations in terms of the order dated 16th October, 1990 as contained in Annexure “Q” to the writ petition. The aforementioned writ petition was filed, as noticed herein-before, questioning the said order: The learned Trial Judge referred to the statements made in each of the writ petitions by the petitioners to the effect that they are members of the respondent No. 7, having noticed that such statements were verified as true to the information of the deponent and further in view of the fact that in Annexure “A” to the writ petition money was received from them with a clear understanding that the same was subject to the approval of the Deputy Registrar of the Co-operative Housing, Calcutta Metropolitan area and such permission having not been granted, a finding of fact has been arrived that they were menely proposed members, although they claim themselves to be the members of respondent-No. 7. The learned Trial Judge also referred to Clause (6) of the by Laws of the said Society which clearly lays down that no person shall be permitted as member without permission of the Assistant Registrar after registration of the Society and no money shall be collected from the person whose membership has not been approved by the Assistant Registrar.

6. It is accepted that although the Society was initially formed by 19 members, several other persons began to deposit amount, as a result where of, the number of proposed members swelled upto 400. It will further not be out of place to mention that although in prayer ‘B’ of the writ petition the petitioners had claimed allotment of land through respondent No. 7, it had opposed the prayer, inter alia, on the ground that money was taken from them with a clear stipulation that the same would be refunded in case of allotment is not possible for any reason. The respondent No. 7 also clearly stated that the writ petitioners were not its members.

7. In fact, it has been pointed out that out of 56 petitioners 11 of them had taken refund of the amount and so far as, 9 members are concerned, it was clearly given out that money was accepted from them, subject to the approval of the Deputy Registrar, Section 2(y) of the West Bengal Co-operative Society Act, 1973 defines member as follows:—

“Member” means a person joining in an application for registration of a society which is subsequently registered or a person admitted to membership of a society after its registration in accordance with this Act, the rules and the by-laws, and includes, subject to the provisions of Sec. 59, a nominal and an associate members.”

8. The definition of “member” in a co-operative Society, read with the aforementioned provision and as well as the terms upon which money had been received from them would clearly go to show that the respondents are not members of the respondent No. 7. Assuming that by reason of acceptance of such amount the writ petitioners had become members of the respondent No. 7, a question which arises for consideration is whether the writ application is maintainable. Before a person can be granted issuance of a writ of or in the nature of Mandamus he must show existence of a legal right and a corresponding legal duty in the authority concerned. The petitioners or the members of the Cooperative Society have no personal right to obtain any land from the State of West Bengal. Various documents, to which our attention has been drawn by Mr. Mahapatra do not show any existence of any such right. The writ petition was filed for enforcement of an alleged promise, i.e in terms of the doctrine of promissory estoppel, but the events clearly go to show that negotiation, if any, had been going on in between the Society and the State of West Bengal. It is not the case of the parties that the State had not allotted any land to the respondent No. 7. In fact, all the parties agree that such lands have been allotted. Whether such allot lands fulfill the anticipation of all the members or not is, however, a different question. If it is accepted for the sake of argument that there was any promise, the same had been made in favour of the respondent No. 7. It was the respondent No. 7 alone who could file a writ application for enforcement of the promise on the basis of the doctrine of promissory estoppel if the same was not acted upon. No promise could or, in fact, had been made by the State in favour of its members in individual capacity, only because a copy of the order made in the writ application was forwarded to one of the appellants, in CO. 17201 (W) of 1991, the same, by itself, is hot a proof to show that any promise had been made to the State. In order to maintain a writ application either invoking the doctrine of promissory estoppel, or legitimate expectation a clear and unequivocal promise must be shown to have been made in favour of the writ petitioners and it must have further been shown that they have altered their position pursuant to or in furtherence thereof. No such case has been made out in the writ application nor in the facts and circumstances of the case any such case could be made out. It is now a well known principle of law that the doctrine of promissory estoppel could not be stretched too far to bring within its preview a mere anticipation. The petitioners deposited certain amounts with the respondent No. 7 upon taking certain risks in view of clear [endorsement made in the receipts granted in their favour by respondent No. 7 which clearly indicates that thereby they were not only yet to become its members but also they could only get their moneys refunded in the event for certain unforseen reason, no land could be allotted in their favour of them. The petitioner thus, having taken a chance now cannot be permitted to say that they have acquired a legal right and thereby they cannot be permitted to approbate and reprobate. It is not necessary for this Court, in this case, to trace out the history of the doctrine of promissory estoppel as the same has successfully been done in a decision, reported in 138 Sales Tax Cases 138. We may only add that even in a case of promissory estoppel, the State can withdraw such promise with a notice and even such promise can be refused to be enforced in public interest. (See (1998) 1 SCC 572). Furthermore, there cannot be any estoppel against the statute. (See 1998 S.C 966). In the instant case, the petitioners have based their claim on the basis of the alleged permissive possession. Such possession can be delivered by the State only upon issuance of an order passed by a competent authority in terms of the provisions of the Rules of Executive business. Even more, noting in the file, it is well known, does not constitute any order under Article 162 of the Constitution of India as even for that purpose authentication is required under Clause (3) of Article 166 of the Constitution is necessary (See (1996) 2 SCC 26). The respondent-Secretary, therefore, cannot be said to have committed any illegality whatsoever while holding that such a right of permissive possession is not believable at all. Furthermore, the question as to whether a promise Was made at the instance of the State or not is not a pure question of law. Such a question of law cannot be culled out only on the basis of the facts pleaded and established. The learned Secretary has arrived at a finding of fact on the basis of documents and other materials placed before him and held that there is nothing on record that any such assurance had been given.

9. It is now well known, in view of various decisions of the Apex Court that this Court while exercising its jurisdiction under Article 226 of the Constitution of India cannot sit in appeal over the, decision of a competent authority. It is concerned not with the merit of the decision, but it can exercise its power of judicial review only when any illegality, irrationality or procedural impropriety has taken place in the decision making process. Neither before the learned Trial Judge nor before us any attempt has been made to show that the order impugned in the writ application, suffers from any such legal infirmity.

10. Furthermore, the appellants' case is based on a contract qua contract. If their claim is only through the Society and if the Society is denying their claim, they can take such action as against the respondent No. 7, to which they may be held to be entitled to. But, for that purpose as against Co-operative Society, which is not a state within the meaning of Article 12 of the Constitution of India, a writ petition will not be maintainable.

11. For the reasons aforementioned, we do not find any merit in these two appeals which are, accordingly, dismissed. But there shall be no order as to costs.

12. Appeals dismissed.