D.N. Sinha, J.
1. The petitioner Mr. Deane is a citizen of India. He is a promoter and organiser of circus shows. On or about 11th May, 1959 he wrote a letter to the Commissioner of Police, Calcutta, asking for permission to occupy a portion of the' open land known as the Calcutta maidan, opposite to the Calcutta Museum. This was done with a view to utilise the said land for the purpose of accommodating a circus show for a period of two months during the winter of 1959. In his said letter, it was stated that he was willing to contribute a sum of Rs. 2000/- to any charitable fund as chosen by the Commissioner of Police. On the 7th July, 1959 the Deputy Commissioner of Police. Head-quarters Calcutta, informed Mr. Deane that the proposed site was considered unsuitable for holding a circus show and as such the permission could not be granted. On the 7th October. 1959 Mr. Deane wrote to the Commissioner of Police stating that he was prepared to pay a larger amount, the fixation of which was to be left to the Commissioner of Police. There appears to have been no reply given to this letter. It is now necessary to relate certain facts which are not directly connected with the petitioner's application, but are indirectly connected with it. On the 28th May, 1956 the Chief Minister of West Bengal, Dr. Roy wrote a letter to Rajkumari Amrit Kaur, the then Minister for Health of the Central Government, a copy whereof is set out in paragraph 5 of the petition. This was in reference to an application made by the Great Rayman Circus, for being allotted an area on the Calcutta maidan for holding a circus during the winter of the year 1956. The Chief Minister said as follows:
'I am afraid it is not possible for me to grant the request. It is our principle to keep the maidan as an open space for outdoor games and sports and for enabling the citizens of Calcutta to take physical exercises. No commercial enterprise of any kind has ever been allowed on the maidan nor has anybody been allowed to put up shows even on noncommercial basis. If we give permission in one case it will not be possible to refuse permission in other cases subsequently and gradually the maidan will cease to cater to the needs of sports and the amenities of the public.''
2. In December, 1956 permission was granted to the Soviet States Circus to stage its show on a portion of the maidan adjoining the Fort. On the 24th September, 1958 one Mr. S. C. Bose applied to the Commissioner of Police, Calcutta for permission to hold a circus on a part of the maidan facing Red Road and/or Casuarina Avenue, during the winter of 1958, upon any reasonable rent that may he charged. On the 17th of November, 1958 the Following reply was received by him from the Commissioner of Police:
'I regret that permission for holding circus show on the Calcutta maidan cannot be granted.'
3. On or about 30th September. 1958 Messrs. V. C. Kapoor and Co., applied to the Central Government for permission to hold a circus show on a part of the maidan. On the 26th December, 1958 a reply was received from the Government of India and the relevant portion thereof is as follows :
'I am directed to inform you that Calcutta maidan is the only open space available for outdoor games and sports and for enabling the citizens of Calcutta to take physical exercise. It is, therefore, regretted that the land in question cannot be made available for staging a circus show.'
4. In or about January, 1959 the Commissioner of Police, Calcutta granted a license or permission to Messrs. A. L. Chopra a partnership firm, to use a portion of the maidan opposite to the Museum and by the side of the Monohar Das Tank, to be used for the purpose of a show known as 'Holiday on Ice'. All that is stated in the petition about his show is that it was an exhibition of Ice-skating, conducted by 'foreign showmen' and yielded an enormous amount of profit to the sponsors'. It is stated that several persons including the petitioner objected to such permission being granted but this was rejected by the Commissioner of Police. It is further stated that several other parties applied for permission to hold a circus show on different portions of the maidan but all such applications have been turned down. On the 29th May, 1959 Mr. S. C. Bose made an application for holding a circus show on the same plot of land upon which Messrs. A. C. Chopra had been allowed to hold their performances and it was stated that the application may be considered 'in the same light as that of Shri Chopra'. On the 29th May, 1959 a reply was received by him the relevant portion whereof is as follows:
'The proposed site is considered unsuitable for holding a circus show and as such we regret our inability to permit the holding of the show there'
5. On the 24th July, 1959 Mr. S. C. Bose wrote to say that he was prepared to hold a circus show without any animals, and prayed for reconsideration of his application. To this no reply was given. On or about 3rd November. 1959 Messrs. A. L. Chopra, as organiser of a show known as the 'Czechoslovakian State Circus' applied to the Commissioner of Police to hold a circus on a plot of land situated on the maidan adjoining the Fort, opposite to the Eden Gardens. This plot is adjoining the plot on which was held the Soviet States Circus. This permission has been granted and the said circus is actually being held on that area. It is stated that the Government of India has imposed certain conditions, to the effect that the amounts to be realised are to be credited to a special account in India which shall not be operated upon, without the sanction of the Government of India, to be granted only for future cultural activities sponsored by the Czechoslovakian Embassy in New Delhi, and that no application would be entertained by any member of the circus party, collectively or individually, for remittances outside India, and that the amounts of the collection by sale of tickets will be subject to audit by an auditor appointed by the Government of India. The petitioner through his solicitor protested against the grant of this license and inter alia stated that Government was guilty of wrongful and unfair discrimination, granting permission to Chopra and refusing permission to others. Now this application has been made to this court by the petitioner and a rule has been issued calling upon the Commissioner of Police, Calcutta to show cause why a writ in the nature of mandamus should not issue directing him to revoke, withdraw and/or cancel the permission, or a license, granted by him to the respondent No. 3, to hold a circus on a portion of the maidan and also a writ in the nature of quo warranto calling upon, the said Commissioner of Police to exhibit the authority under which he acted in purporting to grant permission or licence to the respondent No. 3 to hold a circus and for an injunction restraining the respondent No. 3 or his servants or agents from holding the said circus. At the hearing of this application Mr. De appearing on behalf of the petitioner has argued on three points. The first point is that the Commissioner of Police had no authority to grant permission because there was no prior sanction by the Central Government through the Military Authorities. The second point is that the Commissioner of Police had no right to grant permission for holding a circus inasmuch as it was an encroachment upon the tights of the public to use the maidan, and thirdly, that there was discrimination in terms of Article 15 of the Constitution, and therefore, the permission granted to the respondent No. 3 should be struck down. It will thus appear that in this application the general authority of the Commissioner of Police to administer matters relating to the maidan is not disputed. All that is said is that he cannot allow or permit the use of any portion of the maidan for any purpose other than that permitted by the Union of India through its Ministry of Defence and that such permission could only be for the purpose of outdoor games and sports or for enabling the citizens of Calcutta to take physical exercise. It is stated that the Commissioner of Police has no right to permit any Commercial enterprise on any part of the maidan. In this application, not only the Commissioner of Police, Calcutta has been made a party together with Messrs. A. L. Chopra, but both the Union of India and the State of West Bengal are before me. Both of them have appeared and support the respondent No. 3, and have contested this application. An affidavit has been filed by Major Ranjit Kumar Dutt, the Deputy Assistant Quarter Master General, Fort William, Calcutta who is under the Ministry of Defence, Government of India, affirmed on the 7th December, 1959. In the affidavit it has been stated that the Commissioner of Police has authority to allot pieces of land in the said maidan for the use of any purpose with the approval or consent of the General Officer Commanding. Fort William who is under the Ministry of Defence of the respondent No. 4. It is stated therein that with such previous approval and consent, the Commissioner of Police has authority and power to bring the said maidan for any use which in his best judgment and discretion, is deemed to be most conducive to the best interests of the Indian Union and the members of the public.
Both these statements are verified as submissions to this court and I would have taken no notice of them except for the fact that the petitioner himself and Mr. De appearing on his behalf, strenuously rely on the same. In short, Mr. De argues upon this admitted position, that this application ought to succeed because there is no evidence that the General Officer Commanding, Fort William, has granted prior sanction. In the petition this point has not been expressly taken in that form. Before me however, a plan of the site upon which the circus was to be held, prepared in connection with the application for permission, has been produced, counter-signed by the General Officer Commanding, Fort William. Learned counsel appearing on behalf of the Indian Union states that the General Officer Commanding approves of such permission to be granted. This plan, with such endorsement, has been directed by me to be filed as of record. In view, of this, I think that the first point taken, fails completely.
Before I go further, I should state briefly how the matter stands : The stretch of land surrounding the Fort William, more popularly known as the maidan, belongs to the Indian Union. Except for the area comprising the Fort William and the Victoria Memorial, the rest of the maidan has been entrusted to the State Government for proper administration, which it is doing through the Commissioner of Police, Calcutta. It is not denied that the members of the public are allowed to use the maidan, which, as stated in the letters of the Chief Minister and the Under-Secretary to the Government of India in its Ministry of Defence, quoted above, is to be used as an open space for outdoor games and sports and for enabling the citizens of Calcutta to take physical exercise. Everybody knows how different sports clubs and associations are allowed to have their camps, pavillions and playing fields within the maidan. The rest of the maidan is kept open and the members of the public have utilised it for a very long time as an open space. The maidan is often described as the 'lungs' of the city of Calcutta. Previously, it was never allowed to be used for commercial enterprises, as is quite evident from the letter of the Chief Minister quoted above. Recently however, as will appear from the facts stated above, it is being allowed to be used for commercial enterprises. For the purpose of this application, I am not called upon to go into the legal validity of the entrustment by the Union to the State, and of the power of the State Government to administer the affairs relating to the maidan, nor am I called upon to go into the legal validity of the entrustment by the State Government of this task to the Commissioner of Police, Calcutta. The only point taken is that the Commissioner of Police, in granting permission, must take the prior permission of the General Officer Commanding Fort William, and this has not been taken. The administration of the affairs of the maidan is certainly an executive matter. There is no law by which the administration has to be performed in a particular manner. Now that I find that the General Officer Commanding has given his approval and has even endorsed the site plan, it would be a waste of time to consider whether such approval was a 'prior' approval or not. The position is that the Commissioner of Police cannot or in practice, does not, give his approval without consulting the Military Authorities and in this case such consultation has been done and the granting of permission has been approved by the General Officer Commanding, Fort William. This point, therefore, fails.
The second point relating to the encroachment upon the rights of the public is to be considered next. I have already stated that the Union of India is the owner of the property and the members of the public have been allowed for a long time to utilise the open space known as the maidan for their enjoyment. It has not been pleaded that there has been perfected any legal right like an easement by user. If so, I do not see how it can be said on the materials before me, in this application, that there has been any encroachment upon any right of the public. The title to the property is in the Indian Union, from which it follows that it can use the same in, any manner that the law allows. Whether it should follow the very excellent principles embodied in the letter of our Chief Minister and of the Defence Ministry, quoted above is a matter, not of law but of good government, and any departure from it cannot be remedied by the court. The existence of a big open space like the maidan in the heart of a congested and tremendously over-populated city like Calcutta is one of its most beautiful features. In a letter written on behalf of the Secretary of State for India in 1903, it was described as 'The Great Open Space And Recreation Ground Of The Capital City.'' That it came to be an open space is doubtlessly due to its proximity to the Fort and is primarily based on military requirements. But whatever be the origin, there can be little doubt that the citizens of Calcutta have enjoyed the benefit of it for a period which exceeds a century. Its beneficial features are 'not unknown to Government. If at all at any time, it was necessary to have an open space for ensuring the health and well-being of the city, the need today is much more urgent than in the years past. The population of the city has nearly trebled during the last decade. The living conditions in the congested part of the city and the slum areas have deteriorated from bad to worse. The small number of parks maintained by the Corporation are utterly insufficient and totally inadequate for the needs of the people. This can easily be seen in the afternoons, when the whole of the maidan is crowded with citizens and their families attempting to take a breath of fresh air, which is denied to them in the congested parts of the city. Every right-thinking person, who bas the good of the city at heart, will agree with the Views expressed in the letter written by the Chief Minister, quoted above. It has been argued before me that this is his private opinion. It is an opinion that carries great weight and without doubt represents the view of the citizens of Calcutta and of the country in general. As I have stated above, there is no dispute in this application that the property belongs to the Indian Union, and in the eye of the law the owner of the property has a right to use it in any way which does not contravene the provisions of law. As the representative of the people, the Government must necessarily have the good of the people at heart, and be motivated by that high ideal in all its actions. As I have stated, the open space near the maidan is described as the 'lungs' of the city. It is the sacred duty of Government to expand rather than constrict it. Lately however, there appears to have been a move to encroach upon this open space in the heart of the city. Not only itinerant bodies like circuses and other commercial enterprises are being allowed to encroach into the precincts of the maidan, but even permanent structures are being allowed. Perhaps it is just a passing phase of thoughtlessness on the part of our administrators, but it may shortly turn into a design, which would certainly be an evil day for the city. At the moment however, I cannot see that upon the materials before me, the petitioner bas established such a legal right, upon the strength of which I can grant him effective relief.
This brings me to a consideration of the last point taken in the application, namely that of discrimination under Article 15 of the Constitution. The relevant provision in Article 15 runs as follows :'
'15 (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to:
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of the State funds or dedicated to the use of the general public.'
6. It is argued that the maidan is a place of 'public resort' maintained wholly out of State funds and that any violation of the provisions of this Article would render the action subject to interference by the issue of a high-prerogative writ. That this is a sound doctrine cannot be denied. If the State discriminates against any citizen on grounds mentioned in the said Article, in respect of places of public resort maintained out of State funds, there can be no doubt that such discrimination can be forthwith struck down by the issue of a high prerogative writ. The question is, whether on the facts of this particular case the petitioner' has pleaded and proved such discrimination as would bring the matter within the scope of Article 15 of the Constitution. The question as to what is a place of public resort is indeed a vexed question. There are two classes of cases, in one of which it bas been laid down that a place can only be called a place of public resort to which the public have access as a matter of legal right. There is another class of cases which has laid down that a place of public resort is where, members of the public are allowed access and where they habitually resort to. The two classifications have been exhaustively set out in my decision Liberty Cinema v. Corporation of Calcutta. : AIR1959Cal45 . In this particular case, I am inclined to think that the maidan, except those parts of it which have been set aside for particular purposes, can be said to be a place of public resort maintained out of State funds. It is however, not necessary to decide this finally. For the moment, I shall assume that this is so. The question is whether it has been pleaded or proved that the petitioner has been discriminated on any of the grounds mentioned in Article 15, The only ground which could be mentioned was 'race'. Mr. De tried to argue that permission was being granted only to foreigners while citizens of the soil were being denied the very same opportunities which are being granted systematically to foreigners. If such proposition could be spelt out of the pleadings or the evidence placed before me, then indeed it would come within the mischief of the Article. I regret however that there is not sufficient pleading or proof before me of such discrimination. I have already stated the facts of this case, and the other facts relied upon. The petitioner asked for a permission to hold a circus on a plot of land opposite to the Museum. On this plot of land, no circus have ever been allowed. It is easy to see that the authorities would be perfectly justified in refusing to allow a circus containing animals to be encamped, or carried on, next to the Chowringhee Road, which is one of the main arteries of the city. It is pointed out however that this particular reason is not to be relied on, because offers of holding a circus without animals have also been turned down. Apart from the fact that the portion of the maidan concerned in this case is not the one requisitioned by the petitioner, the question is whether in respect of his own application there has been any discrimination pleaded on the ground of 'race'. All that has been stated in the petition is that Mr. A. L. Chopra had been allowed to hold a show described as 'holiday on ice', being an exhibition of Ice-skating, upon a part of the maidan opposite to the Museum. It is further stated that Mr. Chopra has made a huge profits of about Rs. 10 laks out of this show. The next thing that has been stated is that the respondent No. 1 granted permission to the same Mr. Chopra for holding a circus on a part of the maidan next to the Fort, and opposite to the Eden Gardens, known as 'Czechoslovakian State Circus'' and that this circus is 'conducted by foreigners'. The only other fact that emerges from the affidavit filed by Mr. Chopra is that on a contiguous plot, was held, in 1956, a circus brought from the U.S.S.R. known as the Soviet States Circus. It also appears from the said affidavit that a part of the maidan was allowed to be used for the purpose of holding a Ramlila' show on an adjoining plot. It has also been stated, and indeed, it is common knowledge that in various parts of the maidan, permission is granted for the holding of sports and games like football, hockey, cricket, tennis etc. The only fact before me which may possibly have any bearing on the question of discrimination is that the only two circuses which have been allowed to perform within the precincts of the maidan, were conducted by foreign performers, while several applications by Indian citizens for permission to hold a circus in various parts of the maidan have been turned down. With regard to the 'Czechoslovakian Circus' it is not as if the permit has been granted to a foreigner. It has been granted to a partnership firm known as Messrs. A. L. Chopra which is a partnership firm consisting of Indian citizens. The complaint is that Mr. A. L. Chopra, who is a partner of this firm, is being repeatedly granted permits, out of which he Is making a great deal of money. There is no pleading at all that in granting the permit for holding the Czechoslovakian State Circus, and refusing the petitioner's application for a permit to hold a circus on a different plot of land altogether, the State has discriminated on the ground of 'race'. A constitutional point like this must be specifically pleaded and proved beyond doubt. Assuming for the moment that Mr, Chopra has been especially favoured by the State, that would not bring it within the mischief of Article 15. In order to bring it within Article 15, it will have to be shown that the permission itself is based on racial 'discrimination. That of course, is impossible to hold on the scanty materials before me, and upon the pleadings as they stand. It is necessary for me to state one fact. An attempt has been made to argue before me that in the granting of permission to Mr. Chopra for holding the Czechoslovakian State Circus, there existed special reasons. It is stated that special safeguards were introduced by the Central Government and moneys have to be set apart in Funds to be utilised for furtherance of cultural exchanges with the State of Czechoslovakia. I regret however that the full facts have not been placed before me. The Commissioner of Police ought to have made a full disclosure of the facts which induced him to grant permission for holding the present circus and to disclose reasons why permission was withheld from other citizens of India who proposed to hold a circus or shows, not consisting of foreign performers. The warning must be given that in the absence of such facts, the case has come perilously near discrimination, as envisaged by Article 15 of the Constitution. I am However, unable to hold on the present materials before me that it has actually come within the four-corners of the constitutional prohibition contained in Article 15. As there was no pleading on behalf of the petitioner that he has been discriminated by reason of 'race', and no sufficient proof that there has been such discrimination, on the facts placed before me in this case, I am unable' to hold that this court should interfere by the issue of a high prerogative writ,
7. For the reasons aforesaid, I must hold that this application has failed. The rule is discharged. There will be no order as to costs.