D.N. Sinha, J.
1. The petitioner is a citizen of India and inter alia is a promoter of circus shows. In Calcutta there is a large open space surrounding the & Fort William, known as the maidan. The said open space belongs to the Indian Union. The State ot West Bengal has been entrusted with the management of the said open space except the area belong ing to the Fort proper and Victoria Memorial. It looks after the said land through the Commissioner of Police, Calcutta. On or about 1 8 1959 the petitioner made an application to the General Officer Commanding, the Fort William for the allocation of a plot of land in the maidan for promoting a circus show. He promised to pay a sum of Rs. 20,000/ .f towards the Indian Union Arms (Sic Armed ?) Forces' Welfare Fund. On or about 28-8-1959 the , General Officer Commanding the Fort accorded permission, provided other formalities were completed. With this permission, the petitioner approached the Commissioner of Police, Calcutta for leave to hold the circus show in the maidan opposite the Lloyds Bank. On 28 10 1959 a reply was received from the Commissioner of Police stating his inability to grant permission for holding a circus show in the Calcutta Maidan. On or about 12 11 1959 the permission granted by the General Officer Commanding was also cancelled. The complaint of the petitioner in this application is that although his application for holding a circus show has been turned down, the Commissioner of Police has granted permission to Messrs. A. L. Chopra, a partnership firm, to hold the ''Czechosloyakian State Circus' on a part of the maidan adjoining the Fort proper. Hence this application has been made. With regard to the holding of the 'Czechoslovakian State Circus1' in a part of the maidan, I am glad to say that the facts have now been disclosed, although it was not disclosed in Matter No. 168 of 1959 : : AIR1960Cal664 , Alfred Morris Deane v. Commr. of Police, Calcutta, in which I have delivered judgment today. These facts appear to be as follows: Early in 1959, the Government of Czechoslovakia contemplated the sending out of a State Circus to the Far Eastern countries H like Japan, Indonesia, Burma and India. With this object, the Czechoslovakian Government approached the Governments of the different countries as aforesaid, including the Government of India. In May, 1959 a pre view of the show was held at Prague in the presence of the Indian Ambassador, An application was then made through the Indian Embassy in Prague, which forwarded it to the Government of West Bengal, for the grant of a visa to two representatives of an official organisation of the Czechoslovakian Government, Oldrich Lipsky and Karel y Beran. Such visas being granted, these two persons visited India and finalised arrangement with' Messrs. A. L. Chopra, the Government of India having approved of the holding of the circus in India. The arrangement with Messrs. A. L. Chopra was made by the visiting representatives of an organisation known as 'Hudebni a Divadelni Agentura', an official organisation of the cultural activities of the Government of Czechoslovakia. The Ministry of Home Affairs of the Government of India, by its letter dated 19-10-1959 informed Messrs. A. L. Chopra of its final formal approval and the basis on which it had granted such permission. These conditions are set out in a letter dated the 19th October, 1959 and included in Ex, 'A' annexed to the affidavit in opposition filed by A. L, Chopra affirmed on 19 12 1959. The conditions are roughly as follows: An auditor would be selected by the Government to audit the accounts of the undertaking. The nett amount of profits after meeting all expenses, including the commission of the contractors, was to be kept in a special account which would not be operated upon without the permission of the Government and would be used only for such future cultural activities of Czech citizens as may be granted by the Czech Embassy in New Delhi without the assistance from any private contractor. No applications for any foreign exchange would be entertained from any member of the circus party and no extension of stay in India would be granted to the Troupe in any case. It appears that thereafter the circus troupe and the said representatives of the Czechoslovakian Government, accompanying the circus, arrived in Calcutta from Burma on or about 1 11 1959. Immediately thereafter an application was made for permission to use the location. It is stated in Mr. Chopra's affidavit that a site was finally decided upon personally by the Chief Minister, Government of West Bengal, in consultation with the Commisioner of Police, Calcutta and the Military Authorities. It was after everything had been finally settled that Messrs. A. L. Chopra made a formal application to the Commissioner of Police, Calcutta for permission to use the site on 3-11-1959. It appears to have been granted as a matter of course.
2. In the background of these facts, I have to consider certain points made in this case by Mr. Roy appearing on behalf of the petitioner. Unlike the previous application of Mr. Deane, Mr. Roy has not taken the point of any violation of the constitutional right of non discrimination under Article 15 of the Constitution. The points that he has taken may be summarised here as follows:
3. The first point is that under article 162 of the Constitution, the executive power of a State extends to matters in respect of which the Legislature of a State has power to make laws. Mr. Roy then refers me to Items 33 and 35 in the List II of the 7th Schedule annexed to the Constitution, Item 33 refers to 'sports, entertainments & amusements', while item 35 refers to 'works, lands and buildings vested in or in the possession of the State'. Mr. Roy argues that the State Legislature would have power under one of these two items to legislate in respect of the subject matter of this case, namely permission to utilise a part of the property in the possession of the State Government, for the holding of a show for public amusement. From this he argues that the order granting permission, which as I have stated above, is an order passed by the Commissioner of Police, Calcutta dated 4 11 1959, is an executive action of the State Government. He then refers me to Article 154 of the Constitution which lays down that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him, in accordance with the Constitution. Next he cites Article 166 which lays down that all executive notions of the Government of a State shall be expressed to be. taken in the name of the Governor. It also lays down how such orders should be authenticated. The argument is that this order, which purports to be made on behalf of the Commissioner of Police, Calcutta, does not satisfy the provisions of the relevant articles in the Constitution. Mr. Roy points out that under Article 258, the President may, with the consent of the Government of a State, entrust a State with functions in relation to any matter to which the executive power of the Union extends. The argument is that in this case there has been no such entrustment. The second point taken is that the transaction really amounts to a contract, because there is a consideration, namely a contribution to the Military Welfare Fund. The argument is that such a contract is governed by the provisions of Article 299 of the Constitution, which lays down that all such contracts must be expressed to be made by the Governor and executed by such person and in such manner as he may direct or authorise. He says that this order does not satisfy the provisions of Article 299.
4. Before dealing with these points, it is necessary to consider the genesis of the authority of the Commissioner of Police to deal with such matters at all. It appears that as far ago as 29 1 1903 a letter was received by the Government of Bengal from the Government of India in its Home Department, a copy whereof is annexed to the affidavit of Saradindu Narayan Ghosh affirmed on 19 12 1959. It was stated in that letter that the control of the Calcutta maidan is vested in the Government of Bengal and Is exercised ordinarily through the Commissioner of Police but subject to the approval of the Military authorities with regard to certain matters. The communication was really in the nature ot a complaint. It was stated that in discharging these obligations no reference was being made to the Government of India and as the matter stood it was apprehended that action might be taken affecting materially the use and aspect of what was described as a ''great open space and recreation ground of the capital city', without the knowledge of the Supreme Government. It was pointed out that no changes should be sanctioned or concessions granted, such as would materially affect the appearance of the maidan without the sanction of the Supreme Government. Such cases were divided into three classes. The first related to concessions of a temporary character including the holding of circuses on the maidan. The second. related to permanent or quasi permanent structural changes and the third, to other changes such as the naming or alteration of roads, the placing or moving statues, or introduction of tramways etc. in such manner as materially to effect the external face of the maidan. It was suggested that with regard to the first class, steps should be taken to bar the establishment of a right by prescription. A plan should be drawn up and a scheme should be submitted to the Government of India for its sanction of the existing concessions and all modifications should thereafter be reported for sanction.
5. The next document of importance is a communication received by the Government of Bengal In its Public Works Department from the Government of India. In this letter dated 15th February (1921, a copy whereof is annexed to the affidavit of Saradindu Narayan Ghosh, it has been stated that the maidan had been demarcated into two zones with blue and red lines. The blue line was to be regarded as the boundary of the Fort William, the control over which would be governed by Military considerations and delegated to the local Government subject to the condition that the General Officer Commanding, the Presidency and Assam Districts, must be consulted regarding all proposals for the erection of buildings etc, and if he disagrees, a reference must be made to the Government of India Army Department, With regard to the area within the red line, the military authorities need not be consulted but the Government of India must be consulted. A copy of the map is annexed to the affidavit. Roughly speak ing, the area within the blue line encompasses the Fort proper and an area, the Northern boundary of which, runs across the south of the Eden Garden, along the southern boundary of Raj Bhavan, and encompasses the whole stretch of the maidan lying along the Chowringh'ee Road, up to Theatre Road corner, and then runs towards the West, excluding Victoria Memorial but including the race course and the Military Hospital, and extends towards the West, right up to Kidderpore bridge, and includes that part of the city known as Hastings. The Western boundary is along the Strand Road. Thus the site on which the 'Czechoslovakian State Circus' is situated is within the bundary of the blue line. The red line boundary, more or less consists of the grounds of the Victoria Memorial. In order to grant permission to run a circus on this part of the maidan, it is necessary to get the prior approval of the General Officer Commanding the Fort, which approval lias been obtained in this case. Coming now to the points raised in this case, we have to deal with article 162 (read with items 33 and 35 in the State list) and article 154. That the matter comes under item 33 or 35 in List II can not be disputed, nor can it be disputed that the executive power of a State extends to such a matter. Indeed, the administration of the maidan can not be carried on by the State of West Bengal except in discharge of its executive powers and by way of an executive function. What is executive function is difficult to define. An attempt was made to define it in a Full Bench case of the Allahabad High Court - Motilal v. Govt. of State of Uttar Pradesh : AIR1951All257 , Malik C.J, said as follows:
It is difficult to define what is executive power. The easiest definition is to say that what is not legislative power, though even this definition is Imperfect and the executive can have even judicial and legislative powers ......... In a written constitution the Executive power must be such power as is given to the executive or is implied, ancillary or inherent. It must include all powers that may be needed to carry into effect the aims and objects of the Constitution........
Moatham and Wanchoo JJ. describe executive power as follows:
The question is, as we have said, by no means free from difficulty, but upon the whole we think that we may reasonably infer that the words 'executive power' in the Constitution have substantially the same meaning as 'executive authority in the Act Of 1935 and that it is the superintendence, direction and control of the Civil Government of a State which is vested in the Governor of the State...Sapru J. said :
The executive power of the State in this sense would include the entire activity of Government exclusive of that of the legislature and the purely judicial work of the courts. The function of the executive is to administer: the administration is the totality of executive and administrative authority....
(5a) Mr. Ray has also drawn my attention to the provisions of Article 298 of the Constitution. Actually, this Article came in by way of the Constitution (7th Amendment) Act, 1956 as a result of the Allahabad case mentioned above. It lays down that the executive power of the Union, and of each State, shall extend to the carrying on of any trade or business and to the acquisition, holding, and disposal of property, and the making of contract for any purpose. It is provided that the executive power of the Union dealt with in this Article would be subject to such legislation by Parliament or State as may be passed. Mr. Ray argues that the holding of property includes its administration. He says therefore that any execute action in respect of the administration of property, which is in possession of the State, is an executive action which must be .governed by the provisions of Article 166. Taken in its wide form, this doctrine would certainly give rise to very curious results. It. will mean that if the Government owns or possesses a piece of property and wishes to build a brick wall round it, it will be necessary to pass an order in the name of the Governor or have it authenticated formally. The learned Advocate General says that we might extend this analogy a little more and say that if in buildings belonging to Government, it was necessary to put a nail in the wall, it may be described as an executive action and therefore would have to be done in the name of the Governor in solemn form. He says that the Article concerned was to be applied to the case of formal, executive actions which affect the light and property of a citizen. In other words, he argues that as long as Government deals with its own property it can deal with it in any manner that the law allows, and no formality need be observed. On the other hand, as soon as the right of third parties' intervene this provision of law and the formality envisaged therein, comes into play. He has cited a Supreme Court decision Ram Jawaya Kapoor v. State of Punjab, : 2SCR225 where Mukherjea CJ. said as follows:
The point canvassed there was whether the Government of a State has power under the Constitution to carry on the trade or business of running a bus service in the absence of a legislative enactment authorising the State Government to do so. Different views were expressed by different Judges on this question. Chief Justice Malik was of opinion that in a written Constitution like ours the executive power may be such as is given to the executive or is implied, ancillary or inherent. It must include all power that may be needed to carry into effect the aims and objectives of the Constitution. It must mean more than merely executing the laws. According to the Chief Justice the State has right to hold and manage its own property and carry on such trade or business as a citizen has the right to carry on, so long as such activity does not en croach upon the right of others or is not contrary to law.
6. In another part of the judgment, the learned Chief Justice points out that even if the acts of the executive are illegal, in the sense that they were not warranted by law, no fundamental right of the petitioners had been infringed thereby and no application under Article 32 of the Constitution would lie. The learned Advocate General who has cited this case has argued that although everything that is done by Government in the administration of property may be called executive action in an enlarged sense, because it is certainly not judicial or legislative, it does not follow that formality should be observed strictly as long as the rights of third Parties are not affected. Coming back to Article 154 (166?) Mr. Ray has cited the case of Dattatraya Moreshwar v. State of Bombay : 1952CriLJ955 where it has been laid down by the Supreme Court that the provisions in the Article were directory and not mandatory. Mr. Ray concedes that the position now is this, that if the Constitutional formality is not observed, then the order does not become void but is only voidable, and a person who is affected might make an application to the Court, and the Court will have to be satisfied that the order has really been passed by the Government. Coming back to the facts of this case, therefore, we have to look at it from two points of view. The first point of view, which seems to me somewhat fundamental, is as to whether the order that is complained of, namely, the grant of permission to Messrs. A. L. Chopra to hold a circus on a pax of the maidan, affects any of the legal rights vested in the petitioner. In other words whether that action on the part of the Govt., or its duly authorised agent, was an executive action which affected his rights, and therefore should have been given in a particular form. The second point to consider is that, assuming that such was the case, namely, that the petitioner had a legal right which was affected, the question is as to whether the respondents have satisfied me that the order made was a Governmental order. With regard to the first point, I have already stated the facts relating to the use by the public of the open stretch of land in Calcutta known as the Maidan. In my judgment given today in : AIR1960Cal664 I have already pointed Out the great desirability of keeping this 'great piece of open land' for uninterrupted use by the public. But no kind of legal right has been established before me. There is no suggestion that there has accrued any right by prescription or any other right which could be called 'a legal right', enabling the petitioner to apply for a Writ in the nature of Mandamus, because such right has been affected. The Maidan belongs to the Indian Union. As a matter of good Government, it is allowed to remain as an open space and constitutes the 'lungs of the city'. Hitherto, commercial enterprises were not allowed within its precincts, and from time to time opinions have been expressed against permitting such things to be done. This, however, would not, and has not until now, given rise to any legal right which may be Said to be vested in the members of the public, who are permitted to use the maidan for purposes of sports or physical exercise or mere perambulation. This is the aspect of the matter. The other aspect is that one could have understood the petitioner making an application in respect of the rejection of his own application. But I cannot see how any right of his was violated because a permission has been granted to somebody else. The only way that that penniSr sion could have been challenged was by way ot bringing it within the purview of Article 15 of the Constitution, but no such attempt has been made in this case. I therefore fail to see any legal right vested in the petitioner which has been affected by the permission granted to Messrs. A. L. Chopra which is impugned in this application. That being so. the first aspect of the question must be decided against the contention of the petitioner. Since he is not vested with any legal right which has been affected, he cannot complain of the absence of any legal formality in an order which does not concern him but concerns two parties who have no complaint to make in respect thereof. Even assuming that he had a legal right and there has been a violation thereof, the question is whether the tests laid in the case of : 1952CriLJ955 (supra) have been satisfied. In other words, has it been shown on the affidavits before me that the order which is impugned or challenged is a Governmental order. Looking through the affidavits, which in this case are much more fuller than the case which has been disposed of this morning, I find that there are statements which should induce me to come to the conclusion that the order made was a Governmental order, that is to say, an order properly authorised by government. I have already stated the facts contained in the affidavits filed before me, which would show that at every stage the matter went, not only through the State Government, but also through the Govern ' ment of India. The initial approach was at the highest level and the policy behind it was a policy of international contact, to which no exception can be taken by any right thinking person. The matter went through the Governmental authorities of Bengal and actually it is stated that the Chief Minister. in consultation with the military authorities and the Commissioner of Police, himself chose the site. That the permission granted to Messrs. A. L. Chopra was made with the approval of the State Government has been repeatedly stated in the affidavits on oath. Reference may be made to the affidavit of Purnendu Sekhar Majumdar, who has stated in paragraph 15, categorically, that the approval of the State Government had been obtained. This has also been mentioned in the affidavit of Saradindu Narayan Ghose, the Assistant Secretary, Home (Police) Department of the Government of West Bengal. The detailed particulars of the holding of the circus show in Calcutta have been set out in the affidavit of Mr. A. L. Chopra affirmed on the 19th day of December, 1959, in paragraph 8. In the affidavit in reply there has been a general denial, but these particular statements could not be denied. In my opinion, it would be impossible on these materials to hold that this order was not a Governmental order, or that it had not the authority of government. If, therefore, the provisions of Article 154 (166 ?) are directory & not mandatory and if it is possible to uphold an order if the Court is satisfied that the order passed is a Governmental order, then in my opinion this order has passed 'the constitutional test, and cannot be declared avoid. Mr. Boy has taken me through the various constitutional Acts starting with the Govern 1 ment of India Act, 1888 and the India Council Acts culminating in the Government of India Act, 1915 read with the Act of 1919. He has drawn my attention to the fact that under the 1919 Act, for the first time, the responsibility of Government came to be divided between the Centre and the different Provinces. Under Section 45A of the 1919 Act, provision has been made for enacting rules for the use, under the authority of the Governor General in Council, of the agency of local Governments in relation to central subjects, in so far as such agency may be found convenient, and for determining the financial conditions of such agency. Rules have been framed and my attention was drawn to rule 46, whereby it is prescribed that the Governor General in Council may employ the agency of the Governor in Council of any Province in the administration of central subjects, in so far as such agency may be found convenient. In the present Constitution also, we have Article 258, by which the President may with the consent of the Governor entrust to a State Government or its officers, functions in relation to any matter to which the executive power of the Union extends. [ do not see why I should consider this devolution ol power in any great detail. Mr. Roy has said that by the 1921 letter, which according to him, had to be written because of these devolution rules, the power of administering the Maidan was delegated to the Provincial Government. Assuming that it is so, it gives us a starting point, namely, that at least in L92.lt the power of administering the Maidan was legally delegated to the Provincial Government. There is no doubt that this authority has devolved upon the State Government of West Bengal. There is no law by which the State Government, administering a piece of property, should do it in any particular manner Or through any particular official, and I see no legal bar in doing so through the Commissioner of Police, as it has been done ever since 1903, and perhaps even before. That being so, I will come back to the original point made by Mr. Roy, namely whether the permission granted was an executive action which was in a form violative of the Constitution. As I have said, the answer to it is that the petitioner has no legal right which has been violated, and even assuming that the strict formalities of the constitutional provision have not been carried out, the respondents have satisfied the Court that the order made, is an order of the Government. The other point taken is that the order amounts to a contract, and therefore is violative of Article 299, which lays down that such contracts must be expressly made in the name of the Governor. The learned Advocate General has not gone into the disputed question as to whether this permission amounts to a contract. Mr. Roy has argued that the promise to pay a sum of money to the Military Welfare Fund amounts to a consideration and therefore there is a contract. The learned Advocate General argues that assuming that it is a contract, any violation of it is a matter that concerns the contracting parties, and the petitioner would have no locus standi to challenge any defect in the same. In my opinion that must be so. Such a contract, even if it is in an unconstitutional form may be adopted or ratified by the parties themselves, and I cannot see I how an outsider can come in and agitate its defects I and obtain relief by way of a high prerogative writ.
7. The result is that the points taken by Mr. Roy have failed and this application must be dismissed. The Rule is discharged. There will be no order as to costs.