(1.) THIS mandamus appeal is at the instance of the two private respondents in a writ application under Article 226 of the constitution of India and is directed against the order dated July 31, 2007 passed by a learned Single Judge of this Court by which His Lordship, after entertaining the writ application and passing direction for filing of the affidavits, granted interim order in terms of prayer f to the writ application till 14th september, 2007. By the aforesaid prayerf, the writ petitioners prayed for interim order directing the respondent authority not to give effect to its memo bearing Nos. 343/ndita/w/7/2006 and 342/ndita/w/7/2007 both dated July 16, 2007. By those two memoranda, the Executive Officer, NDITA, the respondent No. 6, directed the writ petitioners to remove their hoardings within seven days from the receipt of the letters failing which the NDITA would be compelled to remove the hoardings without further correspondence.

(2.) THE facts giving rise to filing of the writ application out of which the present mandamus appeal arises may be summed up thus: (a) A tender notice was issued by the Secretary, Department of Information and Cultural Affairs, Government of West Bengal by publishing the same in the newspapers on 25th to 28th October, 2005 inviting advertisement agencies with their offers for installation and maintenance of double hoardings in various parts of West Bengal under certain terms and conditions. Based on such advertisement, the writ petitioners expressed their desire to install hoardings in the Kolkata Municipal Area in District of North 24-Parganas by way of a letter dated 5th November, 2005 enclosing all the requisite documents as directed in the said tender notice. (b) The petitioners were called for a discussion held at the Writers Building in the Directors Chamber on 17th November, 2005 and pursuant to such discussion, the writ petitioner No. 1 by a letter dated 17th November, 2005 prayed for permission before the respondent No. 1 to allow the petitioner no. l to put up 10 hoardings in Birbhum and 10 hoarding in North 24-Parganas. By two memos dated 9th December, 2005 the petitioners were permitted to install the desired hoardings in response to the notice of tender published on 25th October, 2005 and consequently, the respondent No. l on december 9, 2005 by a letter addressed to the District Magistrate, 24-Parganas (North), intimated the details of the agencies entrusted with the work of installing double hoardings under his jurisdiction and asked for necessary co-operation. (c) Nabadiganta Industrial Township Authority (hereinafter referred to as the "ndita") came into existence in the month of February, 2006 and the respondent No. 2 by memo dated 24th February, 2006 referred the names of the agencies permitted for installing hoardings and display signs to the said NDITA. By memos dated 1st March, 2006 and 9th June, 2006 the office of the respondent No. 2 intimated to the District Magistrate, North 24-Parganas and the Chairman, NDITA, respectively, requesting the concerned authorities to make arrangements for installation of hoardings in the areas under the jurisdiction. (d) Subsequently, the writ petitioners made their respective representation before NDITA through letters dated 19th June, 2006 and 21st June, 2006 thereby requesting the respondent No. 5 for its sanction allowing the petitioners to install the hoardings in the area under the NDITA in terms of the directives issued by the respondent No. 1 dated 9th December, 2005. (e) The NDITA on 13th July, 2006 granted permission to the writ petitioners to install 10 hoardings and it was further stated in the said letter that licence-fees/rental charges for the hoardings should be charged as per the existing rules after installation of the hoardings. (f) Subsequently, the petitioners noticed that the some of the authorised hoardings of different persons were demolished at the instance of the NDITA and ultimately, the petitioners received memoranda dated 16th July, 2007 and 19th July, 2007 respectively by which the Executive Officer, NDITA admitted that even though the writ petitioners were allowed to install V-shaped hoardings within the NDITA area on the basis of a request made by the respondent No. 1, since the NDITA had entered into an agreement with the private respondent Nos. 7 and 8, the writ petitioners were directed to remove the hoardings within seven days from the date of receipt of such letter.

(3.) BEING dissatisfied, the writ petitioners came up with the writ application out of which the present mandamus appeal arises.

(4.) AS indicated above, the writ application was moved after notice to the respondents and the learned Single Judge, after passing direction for filing affidavits, granted interim injunction restraining the respondent No. 6 from giving effect to the disputed decision, which is the subject-matter of the writ application till 14th September, 2007.

(5.) INSTEAD of filing any affidavit as per the direction of the learned Single judge, the private respondents have straightaway preferred the present mandamus appeal and in connection with such appeal, they have filed an application for stay of operation of the order passed by the learned Single Judge.

(6.) IN the application for stay, the case made out by the appellants is as follows: (i) The Sector-V, Salt Lake City is identified as a growth centre for information Technology with a set up of large number of enterprises concerning information Technology. Therefore, it became necessary to provide the said area with adequate infrastructure, complimentary facilities and civic services. Consequently, the department of Urban Development, government of West Bengal, authorised the Kolkata Metropolitan development Authority (hereinafter referred to as k. M. D. A. ) to prepare a design and concept plan for improvement and beautification of the said area. The Urban Development Department further authorised k. M. D. A. to hand over the implementation of the work of beautification to Nabadiganta industrial Township Authority. (ii) As per authorisation of K. M. D. A. , the respondent No. 6, the Chairman k. M. D. A. , invited tender through advertisement in newspaper on 3rd July, 2006 and the appellants jointly constituted a company, namely, M/s. Encon private limited and Selvel Advertisement Private Limited and participated in the said tender along with other concerns and ultimately, they were successful in the process of the said tender and consequently, an agreement was entered into between the said company and the respondent Nos. 7 and 8. In the said agreement, K. M. D. A. was a confirming party. Such agreement was entered into on 15th January, 2007 and subsequently, a supplementary agreement was entered into among the three parties on 30th May, 2007. (iii) As per the terms of the agreements, the appellants are solely empowered with the work of "double sided street light and traffic control booth of Police" and "traffic signals" in different roads within the specification. (iv) Pursuant to such agreement, the appellants have already started their work for the purpose of beautification of the entire sites, and in some areas, the work is also complete. (v) Without considering those aspects of the matter as stated above, the learned Single Judge by order dated July 31, 2007 granted the interim order whereby the entire work of the project of the petitioners are stalled and therefore, the order impugned should be vacated.

(7.) MR. Banerjee and Mr. Ghosh, the learned Advocates appearing on behalf f the two appellants, have vehemently attacked the order impugned in this landamus appeal on the ground that the writ application out of which the resent mandamus appeal arises was not maintainable in law. According to hem, the writ petitioners tried to enforce their alleged right arising out of a on-statutory contract and therefore, no writ application is maintainable for inforcement of such contract. The learned Advocates further contended that the appropriate remedy of the writ petitioners lay by filing a suit for damages if they were of the view that the act of the respondent amounted to violation of the clauses of the agreement entered into between the parties. The learned advocates further contend that their clients after going to the due process of tender issued by appropriate authority were the successful bidders and they have already deposited huge amount of money after being conferred with the work order and in such situation, this Court should not entertain the writ application when admittedly the writ petitioner has not paid any amount for getting the benefit of advertisement. In support of such contention, the learned advocates for the appellants relied upon the following decisions of the Supreme court: (1) Radhakrishana Agarwal and Ors. vs. State of Bihar and Ors. reported in air 1977 SC 1496 [LQ/SC/1977/141] ; (2) Berilley Development Authority and Anr. vs. Ajit Pal Singh and Ors. reported in AIR 1989 SC 1076 [LQ/SC/1989/112] ; (3) Divisional Forest Officer vs. Biswanath Tea Company reported in AIR 1981 SC 1386; (4) Kerala State Electricity Board and Anr. vs. Kurien E Kalathil and Ors. reported in 2000 (6) SCC 293 [LQ/SC/2000/1016] .

(8.) MR. Basu, the learned Senior Advocate appearing on behalf of the writ petitioners/respondents, has, on the other hand, opposed the aforesaid submissions made by the learned Counsel for the appellants and has contended that his clients also got the right to give advertisement from the appropriate authority and pursuant to such permission, his clients have already invested huge amount of money and are in possession of the advertisement board. Mr. Basu points out that according to the agreement, the State-respondent has not yet sent any bill and for the inaction on the part of the State-respondent, his clients cannot suffer. Mr. Basu submits that the moment the State-respondent will demand any amount in accordance with the agreement entered into between his clients and thestate-respondent, his clients will pay that the amount. Mr. Basu submits that his clients having made out a strong prima facie case, the learned Single Judge rightly granted the interim order with direction upon the respondent to file affidavit. Mr. Basu, therefore, prays for dismissal of the present mandamus appeal.

(9.) MR. P. S. Basu, the learned Advocate appearing on behalf of the State-respondent has, however, supported the appellants although the State-respondent has not preferred any appeal against the order passed by the learned single Judge.

(10.) THEREFORE, the only question that arises for determination in this mandamus appeal is whether the learned Single Judge was justified in passing the interim order in the facts of the present case.

(11.) AFTER hearing the learned Counsel for the parties and after going through the materials on record we find that undisputedly the State-respondent, the owner of the plot, permitted the writ petitioners to raise the hoardings at a point of time when admittedly the subsequent agreement between the appellants and the State-respondent was not entered into. Therefore, by virtue of the agreement between the writ petitioners and the State-respondent, the former was given possession for the purpose of raising hoardings and they have constructed such hoardings by spending money. Whether there was just cause for revoking the agreement entered into with the writ petitioners cannot be finally decided at this stage before filing of the affidavits by the State-respondents but it is clear that no prior notice was given to the writ petitioners conveying its intention to revoke the agreement before any fresh tender was floated. The State-respondent has even not made any allegation of misconduct or violation of the agreement against the writ petitioners. We, therefore, find the writ petitioners have definitely a strong prima facie case.

(12.) WE are quite conscious of the position of law that in this type of a matter, mere existence of a prima facie case is not sufficient to have a blanket injunction and while granting injunction, it is the duty of the Court to verify the question of balance of convenience and inconvenience. It appears from record that the appellants before us have deposited Rupees one crore for erecting 100 hoardings and the subject-matter of dispute in the writ application is 10 out of those 100 hoardings. In such a situation, in our view, it was the duty of the learned Single judge to impose some condition upon the writ petitioners to secure the interest of the appellants so that in the event the writ application fails in the end, the appellants can be adequately compensated for the delay in getting the benefit of allotment of the hoardings.

(13.) WE now propose to deal with the decisions cited by the learned Counsel for the appellants.

(14.) IN the case of Radhakrishna Agarwal (supra), AIR 1977 SC 1496 [LQ/SC/1977/141] , the apex Court while dealing with the right of a citizen to move a High Court under Article 226 of the Constitution of India alleging violation of a non-statutory contract with the Government made the following observations: "it is thus clear that the Erusian Equipment and Chemicals Ltds case, AIR 1975 SC 266 [LQ/SC/1974/359] (supra) 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 citizens 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 rights and obligations of the parties inter se. No question arises of violation of Article 14 or of any other constitutional provision when the State or its agents, purporting to act within this field, 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 contract. In the cases before us the contracts do not contain any statutory terms or obligations and no statutory power or obligation which could attract the application of Article 14 of the Constitution is involved here. Even in cases where the questions is of choice or consideration of competing claims before an entry into the field of contract facts have to be investigated and found before the question of a violation of Article 14 could arise. If those facts are disputed and require assessment of evidence of the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. Such proceedings are summary proceedings reserved for extraordinary cases where the exceptional and what are described as, perhaps not quite accurately, prerogative powers of the Court are invoked. We are certain that the cases before us are not such in which powers under article 226 of the Constitution could be invoked. " (Emphasis supplied)

(15.) SIMILARLY, in the case of Berilley Development Authority, AIR 1989 SC 1076 [LQ/SC/1989/112] (supra), the Supreme Court reiterated the well-settled principle that when the contract entered into by the State is non-statutory and purely contractual, 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. In this sphere, the Apex Court proceeded, the parties could only claim rights conferred upon them by the contract in the absence of any statutory obligations on the part of the authority in the said contractual field and no writ or order could be issued under Article 226 of the Constitution of India so as to compel the authorities to remedy a breach of contract pure and simple.

(16.) IN the case of the Divisional Forest Officer (supra), the Supreme Court was dealing with a case where a company tried to enforce through a writ petition the right to remove timber without the liability to pay royalty. In such a case, it was held that the Company was not enforcing its right under Regulation 37 of the Assam Land and Revenue and Local Rates Regulations, but was seeking to enforce a contractual right under the specific terms of contract of lease agreed to between the company and the Government and accordingly, such contractual right, could not be enforced in writ petition.

(17.) SIMILARLY, in the case of Kerala State Electricity Board and Anr. (supra), the Supreme Court held that a statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions but the dispute arising out of the terms of such contracts or alleged breaches are to be settled by the ordinary principles on law of contract. According to the Supreme Court, the fact that one of the parties to the agreement is a statutory or public body will not of itself affect the principles to be applied and the disputes about the meaning of a covenant in a contract or its enforceability have to be determined according to the usual principles of the Contract Act. Every act of a statutory body, the Supreme Court opined, need not necessarily involve an exercise of statutory power. Statutory bodies, like private parties, have power to contract or deal with property and such activities may not raise any issue of public law. In the fact of the said case, the Supreme Court was of the view that it had not been shown how the contract was a statutory one and was really in the realm of private law and therefore, the disputes relating to interpretation of the terms and conditions of such a contract could not have been agitated in a petitioner under Article 226 of the Constitution of India. That, accordingly to the Apex Court, was a matter for adjudication by a Civil court or in arbitration if provided for in the contract. Whether any amount was due and if so, how much and refusal of the appellant to pay it was justified or not, were, according to the said Court, not the matters which could have been agitated and decided in a writ petition.

(18.) WE do not for a moment dispute the aforesaid well-settled propositions of law. We also agree that the writ petitioners were put into possession of the hoardings in question pursuant to a contract but the same was not a statutory contract. We are quite conscious to the position of law that merely because a party to the contract is a statutory authority, for that reason the contract entered into with such a party will not become a statutory contract. What is a statutory contract has been dealt with by the Supreme Court in the case of India Thermal power Ltd. vs. State of M. P. reported in AIR 2000 SC 1005 [LQ/SC/2000/357] in the following words: "merely because a contract is entered into in exercise of an enacting power conferred by a statute that by itself cannot render the contract a statutory contract. If entering into a contract containing prescribed terms and conditions is a must under the statute then that contract becomes a statutory contract. If a contract incorporates certain terms and conditions in it which are statutory then the said contract to that extent is statutory. A contract may contain certain other terms and conditions which may not be of a statutory character and which have been incorporated therein as a result of a mutual agreement between the parties. " (Emphasis supplied)

(19.) APPLYING the aforesaid tests to the facts of the present case, there is no escape from the conclusion that the contract relied upon by the writ petitioners is not a statutory contract. But the law is equally settled as explained in the cases of Union of India vs. Anglo-Afghan Agency and Century Spinning and manufacturing Company Ltd. and Anr. vs. Ulhasnagar Municipal Council and Anr. reported in AIR 1968 SC 718 [LQ/SC/1967/339] and AIR 1971 SC 1021 [LQ/SC/1970/91] respectively (both three-Judges Bench) that a representation of an existing fact must be distinguished from a representation that something will be done in future. The former may, if it amounts to a representation as to some fact alleged at the time to be actually in existence, raise an estoppel, if another person alters his position relying upon that representation. A representation that something will be done in future may also involve an existing intention to act in future in the manner represented. If the representation is acted upon by another person it may, unless the statute governing the person making the representation provides otherwise, results in an agreement enforceable at law; if the statute requires that the agreement shall be in a certain form, no contract may result from for acting on such representation but the law is not powerless to raise in appropriate cases an equity against him to compel performance of the obligation arising out of his representation.

(20.) IN this connection, it will appropriate to refer to the following observations of the Apex Court in the case of Century Spinning and Manufacturing Company ltd. (supra): public bodies are as much bound as private individuals to carry out representations of facts and promises made by them, relying on which other persons have altered their position to their prejudice. The obligation arising against an individual out of his representation amounting to a promise may be enforced ex contractu by a person who acts upon the promise: when the law requires that a contract enforceable at law against a public body shall be in certain form or be executed in the manner prescribed by statute, the obligation if the contract be not in that form may be enforced against it in appropriate cases in equity. In Union of India vs. Anglo-Afghan Agencies ltd. , 1968 (2) SCR 366 [LQ/SC/1967/339] : AIR 1968 SC 718 [LQ/SC/1967/339] , this Court held that the government is not exempt from the equity arising out of the acts done by citizens to their prejudice, relying upon the representations as to its future conduct made by the Government. This Court held that the following observations made by Denning, J. , in Robertson vs. Minister of Pensions, 1949 (1) KB 227 applied in India: "the Crown cannot escape by saying that estoppels do not bind the Crown for that doctrine has long been exploded. Nor can the Crown escape by praying in aid the doctrine of executive necessity, that is, the doctrine that the Crown cannot bind itself so as to better its future executive action". We are in this case not concerned to deal with the question whether Denning, l. J. , was right in extending the rule to a different class of cases as in falmouth Boat Construction Co. Ltd. vs. Howell, 1950 (1) All ER 538, where he observed at page 542: "whenever Government officers in their dealings with a subject take on themselves to assume authority in a matter with which the subject is concerned, he is entitled to rely on their having the authority which they assume. He does not know, and cannot be expected to know, the limits of their authority, and he ought not suffer, if they exceed it". It may be sufficient to observe that in appeal from that judgment Howell vs. Falmouth Boat Construction Co. Ltd. , 1950 (1) All ER 538 Lord Simonds observed after referring to the observations of Denning, LJ. : "the illegality of an act is the same whether the action has been misled by an assumption of authority on the part of a Government officer however high or low in the hierarchy. *** The question is whether the character of an act done in force of a statutory prohibition is affected by the fact that it had been induced by a misleading assumption of authority. In my opinion the answer is clearly: No". If our nascent democracy is to thrive different standards of conduct for the people and the public bodies cannot ordinarily be permitted. A public body is in judgment, not exempt from liability to carry out its obligation arising out of representations made by it relying upon which a citizen has altered his positions to his prejudice. Mr. Gokhale appearing on behalf of the Municipality urged that the petition filed by the company apparently raised questions of fact which in the view of the High Court could not appropriately be tried in the exercise of the extraordinary jurisdiction under Article 226. But the High Court has not said so, and on a review of the averments made in the petition this argument cannot be sustained. Merely because a question of fact is raised, the High court will not be justified in requiring the party to seek relief by the somewhat lengthy, dilatory and expensive process by a civil suit against a public body. The questions of fact raised by the petition in this case are elementary.

(21.) WE propose to rely upon aforesaid observations of the Supreme Court sand to hold that the writ petitioners have made out a strong prima facie case notwithstanding the fact that their right is not based on statutory contract, because in this case, the respondents by driving out the writ petitioners, the duly selected persons in the process of tender, is trying to give fresh entry to the appellants in the field of a concluded contract in an arbitrary manner which is not expected from a "state" within the meaning of Article 12 of the Constitution of India and at the same time, the writ petitioners by relying upon the promise of the State have altered their position by making huge expenditure for the erection of the hoardings in question. We have already pointed out that the state has not even levelled any allegation against the writ petitioners of violation of the terms of the agreement nor did it ask the writ petitioners to enhance the price for the hoardings before taking the decision of fresh tender of the self-same hoardings. Therefore, this is not an ordinary case of breach of the terms or of the interpretation of the clauses of a non-statutory contract; on the other hand, it is a case where the question is whether in view of the existence of the contract with the writ petitioners, the State was competent to enter into a fresh contract with the appellants by giving a go-bye to the selection of the writ petitioners without any reason whatsoever. The State has the right to trade. But the State has the duty to observe equality. An ordinary individual can choose not deal with any person. The Government cannot choose to exclude persons by discrimination (See Erusian Equipment and Chemicals Ltd. vs. State of West Bengal and Ors. reported in AIR 1975 SC 266 [LQ/SC/1974/359] ).

(22.) WE, thus, find that the decisions cited by the learned Counsel for the appellants do not help their clients in any way.

(23.) WE, therefore, modify the order impugned to this extent that the interim order granted by the learned Single Judge would continue if the writ petitioners give Bank-guarantee to the extent of Rupees ten lakh in favour of the learned registrar General of this Court from any nationalised bank and further pays the required amount for use of the hoarding to the State-respondent in accordance with the agreement between the parties within a week from the date of demand in writing. The said Bank-guarantee should continue till the disposal of the writ application. If the writ application is not disposed of within one year from today, the Bank-guarantee should be increased to Rupees twenty lakh after the expiry of one year from the date of the order passed by the learned single Judge. Let such Bank-guarantee be given within a week if not already given pursuant to our interim order passed earlier. The amount secured by the writ petitioner will abide by the result of the writ application and subject to such order as may be passed at the time of disposal of the writ application. No costs.