Kanchanoor Bhaskar Shetty v. State of West Bengal — 1978 DIGILAW 476 (CAL)

JUDGMENT Ray, J.: This appeal by the petitioner arises out of the judgment and order passed in Civil Rule No. 5923 (W) of 1977 filed on February 9, 1978 by T. K. Basu, J. discharging the Rule. 2. The petitioner Kanchanoor Bhaskar Shetty carrying on business of advertising under the name and style of Classic Advertising submitted au application on January 19, 1977 before the Public Works Department, Government of West Bengal for the grant of licence for fixing kiosks on street lamp post owned by the Public Works Department in the Maidan area and on the V.I.P. Road up to the Calcutta Air Port offering to pay a sum of Rs. 12,000/- annualy as rent. The petitioner thereafter submitted a sketch plan showing the types of kiosks to be mounted to the street lamp posts as directed by the Assistant Chief Engineer, P.W.D. on 2nd May, 1977. A letter was issued under the signature of the Deputy Secretary II, Public Works Department (Works Branch), Government of West Bengal to the petitioner intimating him the decision of the Government about the terms and conditions of the permission to display advertisement on boards. The terms and conditions are set out hereunder :- "(1) Tenure of the permission will be five years for the present. (ii) Display on boards will be allowed on all lamp posts by the side of Maidan roads/VIP Road. (iii) Rental @ Rs. 12,000/- per annum is acceptable by the PWD with the proviso that three months rental against Rs. 12,000/- per annum is required to be paid in advance by the Coy. (iv) The Coy. will get the model advertisement board approved by the P.W.D. prior to fixing them on lamp posts. (v) The Coy. will arrange for painting of the lamp pasts at its cost after every five years at their cost." The petitioner was also informed that on receipt of the formal acceptance of the above terms and conditions in writing by him further action in the matter would be taken. The petitioner by his letter dated 3rd, May, 1977 intimated the Deputy Secretary II, PWD (Works Branch) about his acceptance of the term; and conditions mentioned in the said letter and also requested him to let him know the procedure for payment of the quarterly advance rental amounting to Rs. 3,000/- in order to enable him to remit the said amount. 3,000/- in order to enable him to remit the said amount. It has been stated that after acceptance of the letter dated 2nd May, 1977, the petitioner parchased materials for manufacturing frames and fixtures required for display of kiosks to be fixed on Maidan area and VIP Road. The petitioner also contacted various agencies and clients for the purpose of display of advertisements in the kiosks and had received response from several clients in this matter. It has also been stated that the petitioner's Branch Manager one Mr. A. D. Fenn culled on the appropriate authorities of the Public Works Department for issue of necessary challan for deposit of the advance sum of Rs. 3,000/- but as the challan was not issued by the department the advance rent could not be deposited. On 5th of August, 1977, the petitioner's Branch Manager was surprised to find about 5 or 6 boards and/or kiosks put up in the Maidan area in the name of 'Adwave', the business of the respondent No.2. The petitioner made enquiries in the office of the PWD hut he was not given any information if the final decision for putting up kiosks in the Maidan area and on the VIP Road was given in favour of the respondent No. 2. It has been pleaded that the respondent No.1 after the decision to grant licence to the petitioner No.1 by its letter dated 2nd May, 1977 could not give permission or licence to the respondent No. 2 for display of advertisements in kiosks on street lamp posts. It has also been stated that the respondent No. 2 accompanied the petitioner's Branch Manager. Mr. Fenn at the time of when talks were held regarding the grant of permission to display of advertisements in kiosks to be installed in the Maidan area and in the VIP Road. The respondent No. 1 is estopped from permitting anyone else except the petitioner to put up kiosks on the street lamp posts in the said area as the petitioner changed his position to his prejudice on the basis of the said decision. It was also submitted that the act of the respondent No. 1 in granting permission to respondent No.2 to put up kiosks is arbitrary and in violation of the principles of natural justice. It was also submitted that the act of the respondent No. 1 in granting permission to respondent No.2 to put up kiosks is arbitrary and in violation of the principles of natural justice. It has been prayed that a writ of Mandamus be issued to withdraw, cancel or rescined the permission granted, if any, by the Public Works Department to the respondent No.2 to erect or construct advertisement boards or kiosks on street lamp posts in the Maidan area and in the VIP Road. A Rule being CR 5923(W) of 1977 was issued. 3. A rejoinder to the said petition sworn by Sri S.K. Deb, Deputy Secretary II, PWD (Works Branch), Government of West Bengal was filed, stating inter alia, that the Government was not at all liable for the expenditure incurred by the petitioner for construction of kiosks and also for advertisements for procuring clients as no contract was finally concluded between the petitioner and the respondent No. 1 by executing the deed of agreement in the manner prescribed as inquired. It has also been stated that he was the officer dealing with the subject-matter and no other subordinate or employee of the PWD had anything to do with the matter. It has further been stated that no permission was ultimately given to the petitioner by execution of a deed of agreement. The letter dated May 2, 1977 cannot be taken to be a permission granted by the Government to the petitioner. It has also been averred that the petitioner's Branch Manager did not even cell on him after 2nd May, 1977 in respect of this matter. The respondent No. 2 applied to the Engineer-in-Chief and Ex-officio Secretary, Public Works Department, for grant of licence to put up advertisements in kiosks on the street lamp posts in the Maidan area and in the VIP Road at an annual licence fee of Rs. 15,000/-stating that he is an unemployed Bengali youth trying to build up his career. It has been stated that it is the policy of the Government to solve the unemployment problem in the State and as the respondent No.2 is agreeable to pay licence fee at the rate of Rs. 15,000/-stating that he is an unemployed Bengali youth trying to build up his career. It has been stated that it is the policy of the Government to solve the unemployment problem in the State and as the respondent No.2 is agreeable to pay licence fee at the rate of Rs. 15,000/- per year which was more than the rate offered by the petitioner the Government after due consideration by letter dated June 29, 1977 intimated the respondent No.2 its decision to grant permission to the respondent No. 2 on conditions stipulated therein. Since the respondent No. 2 gave a high offer of Rs. 15,000/- per annum and he was an unemployed youth, as represented by him the said decision was made by the Government in preference to the offer made by the petitioner. It has also been stated that the Deputy Secretary II, by his letter dated July 14, 1977 sent amended draft agreement to the respondent No.2 for the purpose of execution of the same on a stamp paper. The deed of agreement on stamp paper was executed between the State of West Bengal and the respondent No. 2 on July 19, 1977. An order of sanction by Governor was also issued subsequently in memo no. 3289/3-W(C) dated 20th July, 1977. The respondent No. 2 paid the first instalment of licence fee of Rs. 3,750/-. It has also been stated that the petitioner did not make any enquiry from the office of the respondent No. 1. 4. An affidavit-in-opposition sworn by the respondent No. 2 has also been filed. It has been denied that the petitioner was granted permission to put up kiosks on the street lamp posts in the Maidan area and on VIP Road by the decision of the respondent No. 1 dated 2nd May, 1977. The respondent No.2 applied for permission to put up kiosks he being an unemployed youth his offer being the highest was accepted and he was granted licence to put up advertisements on kiosks on the street lamp posts in Maidan area and on the VIP Road. An agreement between him and the respondent No. 1 has been duly executed. Sanction of the Governor has also been duly accorded for the same. 5. Two affidavits-in-reply have been filed on behalf of the petitioner reiterating statements and allegations made in the petition and denying the statements and allegations made in the said affidavits-in-opposition. An agreement between him and the respondent No. 1 has been duly executed. Sanction of the Governor has also been duly accorded for the same. 5. Two affidavits-in-reply have been filed on behalf of the petitioner reiterating statements and allegations made in the petition and denying the statements and allegations made in the said affidavits-in-opposition. 6. On February 9, 1978, T. K. Basu, J. after hearing the parties discharged the Rule holding that there was no promissory estoppel inasmuch as there was no contract between the parties in the manner prescribed in Article 299 of the Constitution of India. It was further held that there could not be any promissory estoppel against the Government in exercising of its soverign, executive and legislative functions. The petitioner is not on the threshold of the contract but already entered into the field of contract petitioner has no Constitutional right and as such there is no question of infringement of the provisions of the Article 14 of the Constitution. It has also been held that the petitioner has not any right either constitutional or Statutory which can be enforced in the writ jurisdiction and the application for a writ of Mandamus is not maintainable. 7. Feeling aggrieved by the said judgment and order the instant appeal has been preferred. 8. Mr. Rathin Chandra Deb, learned Counsel appearing in support of the appeal has submitted that the executive decision of the respondent No. 1 as communicated by letter dated 2nd May, 1977 agreeing to grant licence to the petitioner for thing up kiosks for display of advertisements on the lamp posts has given rise to a Constitutional right in favour of the appellant which cannot be taken a way or nullified arbitrarily without giving the appellant any opportunity of hearing. The decision in favour of the respondent no. 2 allowing him to put up kiosks is arbitrary and violative of the principles of Natural Justice. It has been further submitted by Mr. Deb that the purported decision made by the respondent No. 1 in favour of the respondent No.2 ignoring the decision made earlier in favour of the petitioner no. 1. is violative of the principles of Natural Justice. It has been further submitted by Mr. Deb that the purported decision made by the respondent No. 1 in favour of the respondent No.2 ignoring the decision made earlier in favour of the petitioner no. 1. is violative of the principles of Natural Justice. It has also been submitted that the offer given by the petitioner though a better offer and in spite of previous decision in favour of the appellant was not duly considered and the offer of the respondent No. 2 was arbitrarily accepted. The appellant thus has been discriminated upon and this is a clear violation of the provisions of the Article 14 of the Constitution. It has been submitted that the petitioner changed his position and acted to his prejudice on the basis of the decision as contained in the letter dated May 2, 1971 by the respondent No.1 and as such the respondent No. 1 is bound to carry out its obligations under the said decision, that is, representation. It has also been submitted that the respondent No. 2 who happened to be acquainted with the Branch Manager of the appellant was present at the time when the talks regarding the grant of licence for fixing up kiosks on street lamp post were held by the Branch Manager with the officers of the Public Works Department. After knowing about this matter the respondent No. 2 applied for grant of licence for the same offering to pay a certain amount as licence fee per annum. This amounted to stealing of the contract. 9. Mr. Somnath Chatterjee, learned counsel appearing on behalf of the respondent No. 2 has, on the other hand, submitted that there is neither any constitutional right nor statutory right to get one's offer accepted by the State. It is for the executive to choose the person with whom it will make: the contract or whose offer will be accepted. The right to carryon trade and acquire and dispose of property is an executive power of the State and when there are several offers it is for the Slate to decide which of them appear to it to be the appropriate offer to accept. There is no discrimination at the threshold of the contract that is at the time of entry in the field of consideration of persons with whom the Government will make the contract. There is no discrimination at the threshold of the contract that is at the time of entry in the field of consideration of persons with whom the Government will make the contract. As such there is no discrimination at all and Article 14 of the Constitution has got no application. It has been next submitted that the decision as contained in the letter dated 2nd May, 1977 purpurted to have been made in favour of the appellant does not create any legal right which merely provides that if certain terms and conditions mentioned there are accepted further action in the matter of grant of licence will be taken. After this letter was issued to the appellant on 2nd May, 1977, nothing was done by the appellant as required under it and as such no right has accrued on the basis of the said decision in favour of the appellant. It has been next submitted that when there are competing claims choice of one of the competing claimants cannot mean discrimination at all. There is no exclusion of any claim from consideration. It has been further submitted that there being no contract made in the manner prescribed in Article 299 of the Constitution of India no legal right has accrued in favour of the appellant. It has also been submitted that there was no representation on behalf of the respondent No.1 to the appellant and as such no question of estoppel arises. It has been lastly contended that the executive action is not giving the contract to the petition or does not involve any civil consequences and as such there is no question of violation of the principles of natural justice. 10. The sheet-anchor of the contention advanced on behalf of the appellant is that the decision by the respondent No. 1 as contained in letter dated 2nd May, 1977 in favour of the appellant has created a constitutional right and as such the said right cannot be arbitrarily taken away or nullified by the executive without giving him any opportunity of hearing. Article 293 of the Constitution provides that the executive powers of the Union and the State shall extend to carrying on of any trade and to the acquisition, holding and dispose of property and the making of contract for a purpose. Article 293 of the Constitution provides that the executive powers of the Union and the State shall extend to carrying on of any trade and to the acquisition, holding and dispose of property and the making of contract for a purpose. Thus the State can carry on this executive function either by making a-law or without making a law. The exercise of this executive power is subject to Part II of the Constitution and as such Article 14 of the Constitution is applicable to the exercise of such powers. So in the matter of public contract equal opportunities are to be given to the citizens who apply and they cannot be discriminated upon in the matter of giving their offer for such contracts and of having the same considered. In other words, there cannot be any discrimination at the threshold or at the time of entry in the field of consideration of persons with whom contracts will be made by the Government. This has been held in (1) AIR 1975 SC 266 , M/s. Erusian Equipment and Chemicals Ltd. v. State of West Bengal another. This decision has been referred to in the case reported in (2) AIR 1977 SC 1496 , M/s. Radhakrishna Agarwal and others v. State of Bihar and others and it has been observed, "Article 14 of the Constitution imports a limitation or/imposes an obligation upon the State's executive power under Article 298 of the Constitution. All constitutional powers carry corresponding obligation with them." So if there is a discrimination at the very threshold, that is, at the time of entry into the field of consideration of persons with whom the Government would contract the executive act of selecting the offer of a person will be certainly violative of Article 14 of the Constitution. In the instant case the appellant made his application to the respondent No. 1 to get the contract. The appellant was not debarred from consideration of his application at the very threshold. On the other hand, it is evident that the appellant entered into the field of contract and his application as well as the application of respondent No.2 were duly considered as evident from the clear averment made in paragraph 10 of the Affidavit-in-opposition sworn on behalf of the respondent No. 1 by Sri S. K. Deb, Deputy Secretary II, P.W.D. (Works Branch), Government of West Bengal. It hits been stated there clearly that in consideration of the high offer give by the respondent No.2 and also that the respondent No.2 was an unemployed youth the Government accepted his offer in preference to the offer made by the petitioner. It has also been stated therein that it was the policy of the Government to solve unemployment problem and that was also taken into consideration in accepting the offer of respondent No.2. It is pertinent to refer in this connection to the decision in (3) AIR 1974 SC 856 , Chairman Ramappa Gundappa Sahakari Samyaka Besava Sangh Ltd. v. State of Mysore & Ors. where it has been held that in respect of the lands belonging to the Government it is free to give lease of such land, whomsoever it chooses and it can change its policies from time to time in accordance with its own social objectives and any order modifying or modifying or nullifying the earlier policy decision by a subsequent resolution cannot be deprivatory of anyone's rights. The action of the respondent No.1 in accepting the offer of the respondent No.2 and in entering into an agreement granting him licence to put up kiosks on lamp posts on the Maidan area and on VIP Road is not discriminatory and as such the same is not in contravention of Article 14 of the Constitution of India. 11. It has been contended further in this connection that the decision to grant licence to the respondent No. 2 to put up kiosks is violative of the principles of natural justice as no reason has been given in the order itself why the case of the petitioner appellant was ignored and secondly no opportunity of hearing was given to the petitioner appellant before the decision was taken granting the licence to the respondent No. 2. Reference has been made in this connection to the decision reported in (4) AIR 1975 SC 2226 , M/s. Hochtief Gammon v. State of Orissa and others, where it has been observed that the executive had to reach their decisions by taking into account relevant considerations. The executive cannot avoid scrutiny by courts by failing to give reasons. Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts. The executive cannot avoid scrutiny by courts by failing to give reasons. Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts. It is well settled that the principles of natural justice applies to authorities exercising statutory powers conferred by rules framed under the Act. In other words, when administrative decisions adversely affect right of the parties or in other words, involving civil consequences the principles of natural justice are applicable unless expressly excluded by Act. It has been held in (5) The State of Orissa v. Dr. (Miss) Binopani Dei and others, reported in AIR 1967 SC 1269 that a party to whose prejudice an order is intended to be passed is entitled to a hearing and this applies a like to judicial tribunals and bodies of person invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed; if there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such powers. 12. In (6) AIR 1970 SC 150 , A. K. Kraipak and others v. Union of India and others, it has been observed that the aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, they do not supplant the law of the land but supplement it. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. This decision has been followed in (7) AIR 1971 SC 40 , Union of India v. J. N. Sinha, and it was held that administrative authorities in making orders affecting rights of the person must act fairly and not preciously or arbitrarily. In other words, rules of natural justice required are called in aid to prevent miscarriage of justice and to ensure a just decision. In other words, rules of natural justice required are called in aid to prevent miscarriage of justice and to ensure a just decision. The rules of natural justice will be applicable unless the statutory provision expressly or impliedly excludes the application of any of the rules of natural justice. The Government had the authority to retire a Government servant on his attainment of the age of superannuation and as such it has been held that order of superannuation which did not deprive the Government servant of any of his rights and was not penal in nature of principles of natural justice could not be applied. Following the decision in AIR 1967 SC 1269 (Supra) it was held in the case of (8) D.F.O., South Kheri and others v. Ram Senahi Singh, that administrative order had to be made in consonance with the rules of natural justice when it affected the respondent's right to property. 13. As has been observed in (9) AIR 1978 SC 851 , Mahindor Singh Gill and another v. The Chief Election Commissioner, New Delhi and others that unless civil consequences ensu hearing is not necessary and observance of the principles of natural justice does not arise. A civil right being adversely affected is a sine quanon for the invocation of the audi alteram partem rule. Civil rights have been held to include rights of property, marriage; protection by the laws, freedom of contract, trial by jury etc. In other words, civil rights are rights partaining to a person by virtue of his citizenship in a State or community. Rights capable of being enforced or redressed in a civil action. It bas been pronounced by the Supreme Court in (10) AIR 1978 SC 597 Smt. Maneka Gandhi v. Union of India, that the fundamental rights protected by Part III of the Constitution out of which Article 14, 19 and 21 are the most frequently invoked, form tests of the validity of executive as well as the legislative actions when these actions are subjected to judicial scrutiny. Executive authorities while taking administrative action involving any deprivation of or restrictions on inherent fundamental rights of citizens must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even appearance of arbitrariness or unfairness. Executive authorities while taking administrative action involving any deprivation of or restrictions on inherent fundamental rights of citizens must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even appearance of arbitrariness or unfairness. They have to act in a manner which is presently impartial and meets the requirements of natural justice. Fairplay in action demand that any of opportunity to be heard should be given to the person affected. Rules of natural justice had been stated by Lord Denning, M.R. in (11) (1969) 2 Ch D. 149 Schmidt v. Secretary of State for Home Affairs, in these terms :- "Where a public officer has power to deprive a person of his liberty or his property the general principle is that it has not to be done without his being given an opportunity of being heard and of making representations on his own behalf." Thus on a conspectus of all the above decisions it is now well settled that the principles of natural justice can be invoked only in cases where the decision of the public officers affects fundamental rights or any other civil rights of a person. In the instant ease the impugned decision of the respondent No. 1 does not affect any right whatsoever of the petitioner not to speak of any fundamental right of the petitioner. If there is any right of the petitioner at all it is a mere right to have his offer considered along with the offer of the respondent No.2 by the respondent No. 1. We have already held that the respondent No.1 after consideration of the offers of the petitioner as well as of the respondent No.2 have preferred to accept the offer of the respondent No.2. The decision has not been made arbitrarily, capriciously or unreasonable but the same has been made on a fair and proper consideration of the two offers. We have already held that the respondent No.1 after consideration of the offers of the petitioner as well as of the respondent No.2 have preferred to accept the offer of the respondent No.2. The decision has not been made arbitrarily, capriciously or unreasonable but the same has been made on a fair and proper consideration of the two offers. As such there has been no discrimination by the respondent No. 1 at the threshold and no civil right of the petitioner being affected by the impugned decision the principles of natural justice cannot be invoked and the impugned order cannot be questioned on the ground of violation of the principles of natural justice as the petitioner was not given any opportunity of hearing before coming to the final decision by the respondent No. 1. There is, therefore no merit in this contention and as such the same is overruled. 14. The doctrine of promissory estoppel is not applicable to the instant case inasmuch as there was no concluded contract made between the petitioner and the respondent No. 1 in the manner prescribed by Article 299 of the Constitution of India. It is now well settled that the contract entered into with the Government by party in order to be valid must be made in the manner prescribed under Article 299 of the Constitution of India which corresponds to Section 175 of the Government of India Act, 1935 and a contract not made in the manner prescribed by the said provision will be void and of no legal effect as the requirement specified in Article 299(1) of the Constitution are mandatory. This has been held in the cases reported (12) in AIR 1962 SC 113 , Vhikraj Jaipuria v. Union of India, (13) AIR 1962 SC 554 , H. S. Riky v. New Delhi Municipality (14) AIR 1962 SC 779 , State of West Bengal v. B. K. Mondal and sons, (15) AIR 1962 SC 110 , State of Bihar v. M/s. Karam Chand Thapar and Brothers Ltd. As there is no contract made in accordance with the provisions of Article 299 (1) of the Constitution no question of promissory estoppel arises in the instant case. It is well settled as observed in (16) AIR 1976 SC 2237 , Excise Commissioner U.P. v. Ram Kumar that there can be no question of estoppel against the Government in the exercise of its legislative, soverign or executive powers. This decision has been followed in later decision in (17) AIR 1977 SC 2149 . The Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Sipahi Singh and others where it has been held that the doctrine of promissory estoppel could not be pressed into service against the Government in exercise of its soverign, executive and legislative functions. In the instant case the power to carryon trade is an executive function as provided in Article 298 of the Constitution and as such the doctrine of promissory estoppel cannot at all be invoked against the respondent No.1. 15. H has been next contended that the respondent No.1 by its decision dated 2nd May, 1977, agreed to grant licence in favour of petitioner. This decision though not expressed to be made in the form of a contract as prescribed by Article 299(1) of the Constitution of India and though not signed in the manner provided by the parties concerned yet on the basis of this representation the petitioner expended money for the construction of kiosks and also for advertisements in order to procure clients for making advertisements in kiosks. The petitioner thus has changed his position to his prejudice and detriment and as such it has been contended that the respondent No. 1 cannot ignore the promise made by it and cannot avoid performance to its obligation under the said promise. Reliance hag been placed in this connection to the decision in (18) AIR 1968 SC 718 , Union of India v. Anglo Afgan Agencies etc. and (19) AIR 1971 SC 1021 , Century Spinning & Manufacturing Co. Ltd. v. Ulhasnagar Municipal Council and another. Neither of these decisions apply to the instant case. In Anglo Afgan Agencies case there was an export promotion scheme published by the Textile Commissioner under Section 3 of the Imports and Exports (Control) Act, 1947 offering incentive to the prospective exporters of woollen goods to export woollen product to Afganisthan and to import raw materials of the total amount equal to 100% of the FOB value of the exports and certificates to that extent will be issued by the Textile Commissioner. The Textile Commissioner, in that case did not arbitrarily issue certificate for import of raw materials of the equal value of the goods exported to the respondents. It was held that the respondent who had acted to his prejudice relying upon the representation made by the Union of India and its officers by the Export Promotion Scheme were not entitled at their will to ignore the promise made by the Government. The respondents have acted to their detriment on the basis of the representation and as such in equity the Government was bound to honour their promise and it was bound to fulfil the same. Similar observation was made in the case reported in AIR 1971 SC 1021 (Supra) where it has been observed that when a promise has been made not to impose octroi and the Century Spinning Mills acted on the same promise the Ulhasnagar Municipality was estopped from imposing octroi on the said Spinning Mill. Public bodies are as such bound as private individuals to carry out representations of facts and promises made by them relying on which other persons have altered their positions to their prejudice. These decisions have no application to the instant case as the petitioners in those cases did not seek to enforce any contractual right unlike this case. In the instant case no such representation has been made by the respondent No. 1 to the petitioner. It is the petitioner who made an offer to take licence of putting up kiosks on lamp posts in the Maidan area as well as on VIP Road. The respondent No. 1 only laid down certain conditions for grant of such licence and asked the petitioner by letter dated 2nd May, 1977 that on acceptance of those conditions by the petitioner further steps in the matter of grant of licence would be considered. Thus no decision was at all made to grant licence to the petitioner and no contract has, in fact been entered into between the parties in the manner prescribed under Article 299 of the Constitution. Therefore it cannot be urged that the respondent No. 1 made certain representation to the petitioner and the petitioner acted on such representation and changed his position to his prejudice. Therefore it cannot be urged that the respondent No. 1 made certain representation to the petitioner and the petitioner acted on such representation and changed his position to his prejudice. Moreover, in the instant case it is a question of acceptance of offer of the petitioner for grant of licence and of making of a contract to that effect. Thus the matter falls within the domain of contract and as such the above decisions at all lire not applicable to this case. 16. The appellant in order to have a writ of Mandamus will have to show that he has a fundamental right or statutory right which imposed a legal duty on the public authority concerned and he has a legal right to its performance. In this case we have already held that the petitioner has neither any constitutional right nor any statutory right and as such the application far the writ of Mandamus as made by him is not maintainable. A writ of Mandamus may be granted only in a case where there is a statutory duty imposed upon the officer concerned and the failure on the part of that officer to discharge that statutory obligation. This has been held by Supreme Court in (20) AIR 1966 SC 334 , Lekhraj Satrandas Lalvani v. Deputy Custodian-cum-Managing Officer, Bombay. This decision has been followed in AIR 1977 SC 2149 (Supra) and it has been observed that an application for grant of a writ of Mandamus under Article 226 of the Constitution was not competent at the instance of the persons who sought to enforce an obligation flowing from Ii contract which having not been made in accordance with the manner prescribed was not binding and enforceable. 17. In the premises aforesaid the appeal fails and is therefore dismissed without any order as to costs. The judgment and order of the learned Trial Judge is hereby affirmed. All interim orders are vacated. Mookerjee, J.: I agree.