Bankim Chandra Ray, J. - (1.) 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 an 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/- annually 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 nnnum 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 posts 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 if, PWD (Works Branch) about his acceptance of the terms 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. It has been stated that after acceptance of the letter dated 2nd May, 1977, the petitioner purchased 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 called 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 but 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 any one 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 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 OR 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 required. It has also been stated that he was the officer dealing with the subject-matter and no other subordinate or employee of the PWD bad 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 call 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/- 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.;