Kanchanoor Bhaskar Shetty v. State of West Bengal — 1978 DIGILAW 99 (CAL)

JUDGMENT Tarun Kumar Basu, J. 1. The facts of this case may be noted as briefly as possible. The petitioner who carries on business under the name and style of Classic Advertising made an application on or about 19.1.1977 to the Public Works Department, Government of West Bengal for grant of a licence for the display of Kiosks on Street Lamp Posts owned by the Public Works Department in the Maidan area and on the VIP Road upto the Calcutta Airport. On the 12.3.1977, an Assistant Chief Engineer of the Department wrote to the petitioner asking him to submit the drawing of display boards for examination by the authorities. Thereafter, the petitioner submitted the drawings of display boards. On the 16.4.1977 Deputy Secretary II of the said Department wrote to the petitioner to the effect that permission can be given on the acceptance of certain conditions as contained in that letter. On the 22.4.1977 the petitioner made a counter-offer. On the 2.5.1977 the Deputy Secretary II of the Department sent a communication to the petitioner. This communication is of vital importance to the petitioner in the present case and may be set out in full herein-below:- "Dated Calcutta, the 2.5.1977 Subject – Grant of permission for display of advertisement on boards to be affixed on lamp posts on VIP Road and Maidan Roads. Sir, With reference to your No. CA: K: 278: 77 dated 20.4.1977 on the above subject, I am directed to say that on careful consideration it has been decided as follows:- (i) 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 month's 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 PWD Department prior to fixing them on lamp-posts. (v) The coy will arrange for painting of the lamp posts at its cost after every five yean at their cost. 2. On receipt of your formal acceptance in writing to the terms and conditions spelt out above, further necessary action will be taken at this end. (v) The coy will arrange for painting of the lamp posts at its cost after every five yean at their cost. 2. On receipt of your formal acceptance in writing to the terms and conditions spelt out above, further necessary action will be taken at this end. Yours faithfully, Sd/- Deputy Secretary II, PWD." Thereafter on the 3.5.1977 the petitioner wrote a letter to the laid Deputy Secretary II the contents whereof may be set out herein-below:- "Dear Sir, Re: Grant of permission for the display of advertisements on boards to be affixed on lamp posts belonging to PWD. We thank you for your letter No. 1013-W(C) dated 2.5.1977 granting permission for the display if Kiosks (advertisement boards) on lamp posts belonging to the Public Works Department on VIP Road and Maidan roads. We accept the conditions stipulated only in your letter under reply governing our appointment. We would now request you to kindly let us know the procedure for paying the first quarterly advance rental amounting to Rs. 3,000/- to enable us to remit the amount immediately. An early reply will be appreciated. Thanking you and assuring you of our best services at all times." Thereafter there was no further correspondence between the parties mentioned hereinabove until August, 1977 when there was a demand for justice by the petitioner before the moving of the present application. 2. According to the petition, the petitioner after the letter of 3.5.1977 by which the terms offered to it by the Public Works Department were accepted was asked for inspection of the model, and offered the same for inspection to the appropriate officers of the Public Works Department. According to the petition, the petitioner was assured that the model would be inspected and approved after the agreement is executed. The petitioner was further assured that immediately on the signing of the agreement in accordance with the terms and conditions contained in the letter dated 2.5.1977 the petitioner would be allowed to commence display of kiosks on all the lamp posts in the said area. No objection was raised at any time by the respondent No.1 and/or the appropriate officers of the Public Works Department regarding the size and type of the display board. No objection was raised at any time by the respondent No.1 and/or the appropriate officers of the Public Works Department regarding the size and type of the display board. According to the petition, on or about 5.8.1977 the petitioner's Branch Manager was surprised to find that approximately 5 or 6 boards and/or kiosks had been put up in the Maidan area in the mime of ADWAVE, which is the sole proprietary business of the respondent No.2. Thereafter, the petitioner made enquiries to ascertain whether any order has been placed by the respondent No.1 in respect of the kiosks in the Maidan area and on VIP Road in favour of the respondent No.2. According to the petitioner, the final decision for putting up all kiosks in the Maidan area and on VIP road as given by the respondent No.1 in its letter of 2.5.1977 is still valid and binding on the respondent No.1. According to the petition, the petitioner apprehends that after the said final decision contained in the letter of 2.5.1977 and its acceptance by the petitioner by the letter of 3.5.1977 the respondent No.1 has wrongfully and illegally passed an order of erection of advertisement boards and/or kiosks in the said area in favour of the respondent No.2. In paragraph 18 of the petition it is stated that the petitioner has purchased raw materials for the manufacture of over one thousand kiosks and has incurred expenses and also widely published to its clients for entering into contracts and has entered into various contracts with these clients for display of advertisements in the said kiosks. In the circumstances, the petitioner has acted to its detriment and the respondent No.1 is not entitled to resile from the same and/or grant permission to any one except the petitioner. 3. On the basis of the aforesaid facts, the petitioner challenges the grant alleged to have been made in favour of the respondent No.2 on various grounds and prays for a writ of Mandamus to withdraw, cancel and rescind any permission that may have been granted to the respondent No.2 and for a direction that the decision contained in the letters dated 2.5.1977 and its acceptance by the petitioner dated the 3.5.1977 be carried out. 4. 4. The circumstances relating to the grant of permission to the respondent No.2 do not appear from the petition naturally because the petitioner was not familiar with the details thereof. They however appear in full in the affidavits and Annexure thereto of both the respondent No.1 and the respondent No.2 and may be briefly noted. 5. According to the affidavit-in-opposition of the respondent No.2, he is an English Honours Graduate from the Calcutta University who could not secure suitable employment and as such decided to embark on business venture in advertising sales and services. He stated contracting advertisers and did some small publicity jobs. He also approached the Bank of Baroda and obtained small loans fur carrying out the aforesaid work. According to the respondent No.2, he occasionally went to the Office of the Calcutta Corporation in connection with his work and in July, 1976 he met Ashoke 'D' Fenn, the Branch Manager of the petitioner at the office of the Calcutta Corporation and got acquainted with him. They gradually become friendly and he was told by the said Branch Manager that they were interested in obtaining the exclusive right to display advertisement of kiosks in and around the city of Calcutta and suggested that if the respondent No.2 could obtain licence from the Corporation of Calcutta in their favour, the organization would take him as a partner with a suitable share in the profits of the firm. Thereafter there is a wrong narration in paragraph 2 of the said affidavit as to the future developments. The sum and substance of these allegations is that after the contract with the Corporation of Calcutta was entered into the deponent was let down by the petitioner in the matter of the promise to take him as a partner. 6. In the circumstances, on or about 17.5.1977 the petitioner applied to the Public Works Department of the Government of West Bengal for grant of a licence to put advertisements on kiosks on the street lamp posts in Maidan area and VIP road for a period of 10 years and offered an annual licence fee of Rs. 15,000/- for utilization of the said light posts. A copy of the said letter has been set out in Annexure "A" to the affidavit of the respondent No. 2, Gautam Ghosh. 7. 15,000/- for utilization of the said light posts. A copy of the said letter has been set out in Annexure "A" to the affidavit of the respondent No. 2, Gautam Ghosh. 7. By a letter dated 29.6.1977 the respondent Ghosh was informed that the Government of West Bengal has decided to grant permission as prayed for on the terms and conditions contained in the said letter. The said letter is important for the purpose of this case and may be set out herein-below:- "Sir, Subject – Grant of permission for display of advertisements on boards to be affixed on lamp posts on VIP Road and Maidan Roads. With reference to your letter No. AW/PWD-K/501. 17.5.1977 I am directed to say that it has been decided to grant permission in your favour for the above noted purpose on the following conditions:- (i) Tenure of the permission will be for one year at the first instance. (ii) Rental @ Rs. 15,000/- (Rupees fifteen thousand) only per annum is acceptable by the PWD with the proviso that three months' rental against Rs. 15,000/- per annum is required to be paid in advanced by you. (iii) The model advertisement board will be approved by the Public Works Department prior to fixing them on lamp posts. 2. A draft agreement incorporating the above terms and conditions may please be furnished at this end for taking further necessary action." 8. Thereafter, the draft agreement was sent by the respondent Ghosh which was sent back to the respondent Ghosh by the Deputy Secretary II by his letter dated 14.7.1977 for execution. Clause 5 of the draft agreement which is not to be found in the earlier correspondence, and was the subject matter of much comment on behalf of the petitioner, may be set out herein-below:- "(5) Should the licensee duly and punctually pay the fees herein prescribed and duly and faithfully observe the obligations on his part herein contained, the licensee shall have the option for renewal of the licence from year to year upon giving a month's previous notice in writing to the Government." 9. Thereafter on the 15.7.1977 a formal agreement embodying the above terms was executed between the State of West Bengal in the name of the Governor of the one part and the respondent Ghosh of the other. 10. Thereafter on the 15.7.1977 a formal agreement embodying the above terms was executed between the State of West Bengal in the name of the Governor of the one part and the respondent Ghosh of the other. 10. The only other letter of any significance is one dated the 20.7.1977 whereby the respondent Ghosh was informed that the Government has been pleased to accord sanction to the display of advertisement of boards by the respondent Ghosh in terms of the agreement dated 15.7.1977 a copy of which was enclosed. The Government was further pleased to direct the respondent Ghosh to deposit the first installment fee of Rs. 3750/- with the Executive Engineer, PWD, City Division, Writers Building, top floor, Block V, Calcutta-1 forthwith in terms of Clause 3 of the agreement cited above. 11. It is not in dispute that no formal contract in terms of Article 299 of the Constitution was executed between the petitioner and the State of West Bengal containing the terms of the decision embodied in the letter of the 2.5.1977 as accepted by the petitioner by his letter dated 3.5.1977. 12. Mr. Siddhartha Sankar Ray, learned counsel appearing on behalf of the petitioner, did not seriously contend that there was a formal contract between the petitioner and the respondent State of West Bengal as contemplated by Article 299 of the Constitution of India. According to Mr. Ray what the respondent State of West Bengal had done was to arrive at an "executive decision" to grant the contract for the display of kiosks in the area mentioned above in favour of the petitioner. In support of this contention, Mr. Ray laid considerable emphasis on the of opening words of the letter of the 2.5.1977 which contained the clause I am directed to say that on careful consideration it has been decided as follows. 13. According to Mr. Ray, the executive authorities of the State of West Bengal were empowered to take the decision by virtue of the provisions of Article 162 of the Constitution of India read with Article 298 thereof and also the Item Nos. 18, 35 and 66 of List II of the Seventh Schedule thereof. Mr. Ray relied on the decision of the Supreme Court in the case Erusian Equipment and Chemicals Ltd. vs. State of West Bengal, AIR 1975 SC 266 . 18, 35 and 66 of List II of the Seventh Schedule thereof. Mr. Ray relied on the decision of the Supreme Court in the case Erusian Equipment and Chemicals Ltd. vs. State of West Bengal, AIR 1975 SC 266 . Reference was also made to the case of Union of India vs. K.P. Joseph, AIR 1973 SC 303 (paragraph 10). Reference was also made by Mr. Ray to the case of Sharpe vs. Work field, LR (1891) AC 173, in support of the proposition that when an executive decision is not based on any reasonable ground but depends on some caprice or whim or humour of the authority, it can be set aside in exercise of the powers in the writ jurisdiction. Strong reliance was placed by Mr. Ray on a recent decision of the Supreme Court in the case of Radhakrishna Agarwala & others vs. State of Bihar & other, AIR 1977 SC 1496 . Beg, C.J. on behalf of the Court, observed as follows in the above case. "It is thus clear that the Erusian Equipment and Chemicals Ltd. vs. State of West Bengal, case involved discrimination at the very threshold or at the time of entry into the field of consideration of persons with whom the Government could contract at all. At this stage no doubt, the State acts purely in its executive capacity and is bound by the obligations which dealings of the State with the individual citizen's import into every transaction entered into in exercise of its constitutional powers. But after the State or its agents have entered into the field of ordinary contract, the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines the rights and obligations of the parties inter se." 14. According to Mr. Ray, in the instant case the parties were on the threshold of a contract but had not become parties to a concluded contract in view of the provisions of Article 299 of the Constitution of India. Mr. Ray did not dispute the proposition which has been categorically laid down in a number of recent Supreme Court decisions that once the parties have entered into the formal and binding contract the rights and liabilities would be determined by the contract itself and no action could be taken in this forum for enforcing those rights. 15. In course of his arguments, Mr. 15. In course of his arguments, Mr. Ray formulated a fivefold submission which may be noted below:- The first proposition of Mr. Ray was that the executive decision contained in the letter dated 2.5.1977 conferred three rights on the petitioner viz. (a) Right to be considered as the only person as long as the decision stands (b) Right to prevent others from being considered as long as the decision is there and has not been revoked. (c) Right to insist that the Government's field of consideration was restrained and limited by the terms of the decision. The second proposition of Mr. Ray was that the Government having already exercised its discretionary power in favour of the petitioner by taking the decision, it could not arbitrarily or capriciously disregard the decision already taken or act without any principle at all. The third formulation of Mr. Ray was that the Government in taking the decision was acting in its executive capacity and as such it was bound by the obligation which dealings of the State with the individual citizen's import into every transaction entered into in exercise of its constitutional powers. Fourthly, Mr. Ray submitted that the Government is bound to act in accordance with its decision inasmuch as on the basis of the promise therein, the petitioner had acted to his detriment, prejudice and predicament. Lastly, he submitted that the discretionary power having once been exercised, it cannot be exercised again in a different or opposite manner as long as the former decision stands. 16. I have set out the propositions as enunciated by Mr. Ray in course of his argument. It would appear and it was not disputed by Mr. Ray that there is a degree of over-lapping in the formulations (1), (2), (3) and (5). Formulation (4) clearly involves the consideration of the doctrine of promissory estoppel. 17. In connection with the above propositions Mr. Ray relied on a decision of the Supreme Court in the case of S.G. Jaisinghani vs. Union of India & others, AIR 1967 SC 1427 . At paragraph 14 of the report the following observation occurs:- "In this context it is important to emphasize that the absence of arbitrary power it, the first essential of the rule of law upon which our whole constitutional system is based. At paragraph 14 of the report the following observation occurs:- "In this context it is important to emphasize that the absence of arbitrary power it, the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decisions taken without any principle or without any rule it is unpredictable and such a decision is the anti-thesis of a decision taken in accordance with the rule of law." 18. In my view, this is a very general statement of the proposition that an arbitrary or capricious decision which is not based on any principle is clearly capable of being struck down in this jurisdiction. This proposition cannot be and indeed was not disputed on behalf of the respondents. Reference was also made to the case of M.A. Rasheed & others vs. State of Kerala, AIR 1974 SC 2249 , where a similar proposition has been laid down. Reference was also made to another decision of the Supreme Court in the case of Khudiram Das vs. State of West Bengal & others, AIR 1975 SC 550 . At paragraph 10 of the report Bhagwati, J. on behalf of the Supreme Court observes as follow:- "There is also one other ground on which the subjective satisfaction reached by an authority can successfully be challenged and it is of late becoming increasingly important. The genesis of this ground is to be found in the famous words of Lord Halsbury in Sharpe vs. Wakefild, 1891 AC 173 at page 179. When it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion according to law and not humour. It is to be not arbitrary, vague, fanciful but legal and regular." 19. This disposes of all the cases cited by Mr. Ray in support of his formulations 1, 2, 3, and 5. 20. It is to be not arbitrary, vague, fanciful but legal and regular." 19. This disposes of all the cases cited by Mr. Ray in support of his formulations 1, 2, 3, and 5. 20. Formulation No. 4, as I have already indicated deals with the well-known doctrine of promissory estoppel. Reference was made to a large number of decisions starting from the decision of Supreme Court in the case of Union of India & others vs. Indo-Afghan Agencies etc., AIR 1968 SC 718 . Reference was made to the well-known proposition in paragraph 20 of the report which is as follows:- "This case, is in our judgment, a clear authority that even though the case does not fall within the terms of S.115 of the Evidence Act, it is still open to a party who has acted on a representation made by the Government to claim that the Government shall be bound to carry out the premises made by it, even though the promise is not recorded in the form of a formal contract as required by the constitution." Reference was also made to the case of Century Spinning & Manufacturing Co. Ltd. & another vs. The Ulhasnagar Municipal Council & another, AIR 1971 SC 1021 , where the proposition laid down in the case of Union of India & others vs. Indo-Afghan Agencies etc., AIR 1968 SC 718 , has been followed and similar proposition laid down. 21. On the basis of the above propositions laid down by the Supreme Court and on the basis of statements in paragraph 18 of the petition where it has been stated that the petitioner relied on the representation made by the respondent No.1 and thereby altered his position to his prejudice and detriment. In paragraph 18 of the petition, it is stated, as I have already indicated, that the petitioner has entered into various contracts with his clients for display of advertisements in the said kiosks. It is significant however that neither in the petition nor in the affidavit-in-reply filed by the petitioner there is a single document evidencing such a contract. It may therefore be legitimately contended as was contended on the facts of this case that there are not enough factual materials before the Court to attract the doctrine of promissory estoppel as is sought to be done by the petitioner. I need not pursue this aspect any further. It may therefore be legitimately contended as was contended on the facts of this case that there are not enough factual materials before the Court to attract the doctrine of promissory estoppel as is sought to be done by the petitioner. I need not pursue this aspect any further. From my observations to be made hereinafter, it will appear the doctrine of promissory estoppel cannot be invoked in the present case. 22. Mr. Somnath Chatterjee, learned Counsel appearing on behalf of the respondent No. 2, very strongly relied on the decision in the case of Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. vs. Sipahi Singh & others, AIR 1977 SC 2149 . At paragraph 10 of the report it is observed as follows:- "In the instant case, it is obvious that the settlement of the Jalkar with respondent No.1 was not made and executed in the manner prescribed by Article 299 of the Constitution. Accordingly, it could not be said to be valid and binding on the State of Bihar and respondent No.1 could not base his claim thereon." Paragraphs 13 and 14 of the Report were also strongly relied upon on behalf of the respondent and may be set out herein-below:- "(13) The doctrine of promissory estoppel could also not be pressed into service in the present case, as it is well settled that there cannot be any estoppel against the Government in exercise of its, sovereign legislative and executive functions (See Excise Commissioner, U.P. Allahabad vs. Ram Kumar, AIR 1976 SC 2237 ). (14) The decision of this Court in Union of India & others vs. Indo-Afghan Agencies etc., (1968) 2 SCR 366 (AIR 1966 SC 718) on which strong reliance is placed by counsel for respondent No.1 is clearly distinguishable. In that case unlike the present one, the respondents were not seeking to enforce any contractual right. They were merely seeking to enforce compliance with the obligation which was laid upon the Textile Commissioner by the terms of the export Promotion Scheme providing for grant (by way of incentives to exporters of woolen textiles and goods) of Entitlement certificate to import raw materials of a total amount equal to 100 percent of the F.O.B. value of their exports. Their claim was founded upon the equity which arose in their favour as a result of the representation made on behalf of the Government in the aforesaid Scheme, the exports of woolen goods made by them to Afghanistan acting upon the representation and curtailment of the import entitlement by the textile Commissioner without notice to them." 23. Reference was made in this connection to the decision of the Supreme Court in the case of Excise Commissioner M.P., Allahabad etc. vs. Ram Kumar, AIR 1976 SC 2237 , which has been referred in the above noted case and is reported in AIR 1976 SC 2237 . In that case their Lordships of the Supreme Court held as follows:- "That the fact that sales of country liquor had been exempted from sale tax at the time of auction of licences to sell such liquor by retail, could not operate as an estoppel against the State government and preclude it from subjecting the sale to tax if it felt impelled to do so in the interest of the revenues of the State which are required for execution of the plans designed to meet the ever increasing pressing needs of the developing society." 24. Mr. Naranayan Guptoo, learned Government Pleader appearing on behalf of the respondent No.1 raised an interesting question with regard to the constitutional validity of the alleged executive decision on which Mr. Ray for the petitioner so strongly relied. Mr. Guptoo drew my attention to the provisions of Article 166(1) of the Constitution of India which reads as follows:- "All executive action of the Government of State shall be expressed to be taken in the name of Governor." 25. According to Mr. Guptoo, assuming that the letter dated the 2.5.1977 addressed to the petitioner amounts to an executive decision, such a decision is in violation of the provisions of Article 166(1) of the Constitution of India and as such unenforceable. I shall not pursue this contention further for reasons which will presently appear. 26. Having given my anxious consideration to the entire case and the rival arguments I have come to the conclusion that the contention on behalf of the petitioner must fail. The sheet anchor of Mr. I shall not pursue this contention further for reasons which will presently appear. 26. Having given my anxious consideration to the entire case and the rival arguments I have come to the conclusion that the contention on behalf of the petitioner must fail. The sheet anchor of Mr. Ray's contention is the passage which is contained in paragraph 10 of the judgment of the Supreme Court in the case of Radhakrishna Agarwala & others vs. State of Bihar & other, AIR 1977 SC 1496 . When I repeatedly put the question to Mr. Ray as to whether he founded his right under a contract, Mr. Ray significantly submitted in the negative. This is because the parties had entered into a formal contract of agreement the right under such contract could not be enforced in this jurisdiction. Secondly such a contract being not in conformity with the provisions of Article 299 of the Constitution of India would clearly be void and unenforceable as a contract. That is why Mr. Ray contended that his rights were not based on a contract. 27. When I enquired whether the parties who have not yet entered into the contract but were on the threshold thereof, to quote the language of the Supreme Court, they could claim any higher right than that which can be claimed as the parties to a formal contract. Mr. Ray failed to give any other reasons except to submit that this is because the Supreme Court has said so. 28. The clue to those observations of the Supreme Court in the case of Radhakrishna Agarwala noted above is, in my view founded in the latter part of paragraph 10 thereof as pointed out by Mr. Tarun Bose, learned Counsel who followed Mr. Chatterjee in his submission on behalf of the respondent No.2. That latter portion may be set out herein-below:- "No question arises of violation of Article 14 or of any constitutional provision when the State or its agents purporting to act within this filed, perform any act. In this sphere, they can only claim rights conferred upon them by contract and are bound by the terms of the contract only unless some statute steps in and confers some special statutory power or obligation on the State in the contractual field which is apart from the contract." 29. In this sphere, they can only claim rights conferred upon them by contract and are bound by the terms of the contract only unless some statute steps in and confers some special statutory power or obligation on the State in the contractual field which is apart from the contract." 29. Paragraph 10 of the report in the case of Radhakrishna Agarwala read as a whole, in my view, lays down the proposition, that after the parties have entered into the contract the rights and obligations flow only from the contract unless some statues step in. In the absence of any statutory inhibition, those rights cannot be enforced in the writ jurisdiction. At the earlier stage however when the parties are on the threshold of forming a contract the State is bound to abide by the constitutional provisions. For instance when the State is considering acceptance of a tender submitted by a large number of parties it is incumbent on the State to consider each and every application for tender. Otherwise such a decision would be void as infringing Article 14 of the Constitution which prescribes for the equality of opportunity to every citizen of the country. These observations in paragraph 10 of the above case however are not authority for the proposition that when the parties are at the embryonic stage before the formation of a contract, they can claim any higher legal right apart from those conferred by the constitution. In my view as there is no question of any constitutional right involved in the present case, the petitioner is not entitled to any right or claim which can be enforced in this jurisdiction. 30. In my view Mr. Chatterjee for the respondent No.2 is obviously right when he contends on the strength of the judgment of the Supreme Court in the case of the Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. vs. Sipahi Singh & others, AIR 1977 SC 2149 , that the above case is an authority for the proposition that when no statutory rights are involved then the doctrine of promissory estoppel may be invoked only provided the conditions laid down by the Supreme Court in the case of Union of India & others vs. Indo-Afghan Agencies etc., AIR 1968 SC 718 , are fulfilled. This decision however is no authority for the proposition that then the parties are on the earlier stage, prior to the formation of a formal contract as required by the Constitution of India, they can invoke the doctrine of promissory estoppel. On the factual aspect Mr. Chatterjee pointed out that in so far as his client is concerned there is a formal agreement embodying the terms of the contract which fulfils the provisions of Article 299 of the Constitution of India. Admittedly, there is no such contract in favour of the petitioner. 31. Mr. Guptoo for the respondent No.1 produced the records of the State Government which shows that after the letter of the 2.5.1977 issued in favour of the petitioner there was no further action taken in respect of the petitioner with regard to his claim for the permission sought for. After the receipt of the application of the respondent No.2, the State had proceeded on the basis that the petitioner and the respondent No.2 were claimants as it were, for the same kind of permission. In view of the fact that the respondent No.2 had offer red a higher annual fee, his claim was eventually accepted. Mr. Ray made a comparative study of the terms of the contract and agreement and with reference to clause 5 of the agreement in favour of the respondent No.2 which according to Mr. Ray amounted to a lease in perpetuity at the option of the respondent No.2 was clearly more beneficial terms than those contained in the decision in favour of the petitioner. I refrain from proceeding any further on this aspect of the question. 32. In the view I have taken, having regard to my findings mentioned above I refrain from expressing any opinion on the contention of Mr. Guptoo for the respondent No.1 that assuming there is an executive decision in favour of the petitioner, such a decision is unconstitution in view of the provisions of Article 166(1) of the Constitution of India. 33. It would be clear from what has been set out above that I have come to the conclusion that in the facts of the present case, the petitioner has not acquired any right which can be enforced in this jurisdiction. As Mr. Somnath Chatterjee submitted that in either view of the matter viz. 33. It would be clear from what has been set out above that I have come to the conclusion that in the facts of the present case, the petitioner has not acquired any right which can be enforced in this jurisdiction. As Mr. Somnath Chatterjee submitted that in either view of the matter viz. that the parties were negotiating for a contract or had entered into formal contract as understood in the ordinary sense i.e. without the constitutional inhibition of Article 299 or the Constitution of India, the result would be the same and the conclusion is inescapable, that the petitioner has not acquired any rights which can be enforced in this jurisdiction. 34. For the reasons given above, this application fails and is dismissed. The Rule is discharged. All interim orders are vacated. There will be no order as to costs. 35. Mr. Ganguly, appearing for the petitioner asks for stay of operation of my order. Mr. Basu appearing on behalf of respondent No.2 submits that his client gives an undertaking to this Court through the learned advocate on record, not to put up any kiosks, which are the subject matter of the present Rule, for a week from date. On that undertaking being recorded, no stay is granted. I make it clear that any further order with regard to stay or injunction must be obtained from the Court of appeal.