TRILOK NATH MEHRA Vs. COMMISSIONER OF POLICE CALCUTTA

JUDGEMENT

(1.) The petitioner is a citizen of India and inter alia is a promoter of circus shows. In Calcutta there is a large open space surrounding the Fort William, known as the maidan. The said open space belongs to the Indian Union. The State of West Bengal has been entrusted with the management of the said open space except the area belonging to the Fort proper and Victoria Memorial. It looks after the said land through the Commissioner of Police, Calcutta. On or about 1-8-1959 the petitioner made an application to the General Officer Commanding, the Fort William for the allocation of a plot of land in the maidan for promoting a circus show. He promised to pay a sum of Rs. 20,000/-towards the Indian Union Arms (Sic Armed ?) Forces' Welfare Fund. On or about 28-8-1959 the General Officer Commanding the Fort accorded permission, provided other formalities were completed. With this permission, the petitioner approached the Commissioner of Police, Calcutta for leave to hold the circus show in the maidan opposite the Lloyds Bank. On 28-10-1959 a reply was received from the Commissioner of Police stating his inability to grant permission for holding a circus show in the Calcutta Maidan. On or about 12-11-1959 the permission granted by the General Officer Commanding was also cancelled. The complaint of the petitioner in this application is that although his application for holding a circus show has been turned down, the Commissioner of Police has granted permission to Messrs. A. L. Chopra, a partnership firm, to hold the '"Czechoslovakian State Cirqus" on a part of the maidan adjoining the Fort proper. Hence this application has been made. With regard to the holding of the "Czechoslovakian State Circus" in a part of the maidan, I am glad to say that the facts have now been disclosed, although it was not disclosed in Matter No. , Alfred Morris Deane v. Commr. of Police, Calcutta, in which I have delivered judgment today. These facts appear to be as follows: Early in 1959, the Government of Czechoslovakia contemplated the sending out of a State Circus to the Far Eastern countries like Japan, Indonesia, Burma and India. With this object, the Czechoslovakian Government approached the Governments of the different countries as aforesaid, including the Government of India. In May, 1959 a pre-view of the show was held at Prague in the presence of the Indian Ambassador. An application was then made through the Indian Embassy in Prague, which forwarded it to the Government of West Bengal, for the grant of a visa to two representatives of an official organisation of the Czechoslovakian Government, Oldrich Lipsky and Karel Beran. Such visas being granted, these two persons visited India and finalised arrangement with' Messrs. A. L. Chopra, the Government of India having approved of the holding of the circus in India. The arrangement with Messrs. A. L. Chopra was made by the visiting representatives of an organisation known as "Hudebni a Divadelni Agentura", an official organisation of the cultural activities of the Government of Czechoslovakia. The Ministry of Home Affairs of the Government of India, by its letter dated 19-10-1959 informed Messrs. A. L. Chopra of its final formal approval and the basis on which it had granted such permission. These conditions are set out in a letter dated the 19th October, 1959 and included in Ex. "A" annexed to the affidavit in opposition filed by A. L. Chopra affirmed on 19-12-1959. The conditions are roughly as follows: An auditor would be selected by the Government to audit the accounts of the undertaking. The nett amount of profits after meeting all expenses, including the commission of the contractors, was to be kept in a special account which would not be operated upon without the permission of the Government and would be used only for such future cultural activities of Czech citizens as may be granted by the Czech Embassy in New Delhi without the assistance from any private contractor. No applications for any foreign exchange would be entertained from any member of the circus party and no extension of stay in India would be granted to the Troupe in any case. It appears that thereafter the circus troupe and the said representatives of the Chechoslovakian Government, accompanying the circus, arrived in Calcutta from Burma on or about 1-11-1959. Immediately thereafter an application was made for permission to use the location. It is stated in Mr. Chopra's affidavit that a site was finally decided upon personally by the Chief Minister, Government of West Bengal, in consultation with the Commissioner of Police, Calcutta and the Military Authorities. It was after, every thing had been finally settled that Messrs. A. L. Chopra made a formal application to the Commissioner of Police, Calcutta for permission to use the site on 3-11-1959. It appears to have been granted as a matter of course.

(2.) In the background of these facts, I have to consider certain points made in this case by Mr, Roy appearing on behalf of the petitioner. Unlike the previous application of Mr. Deane, Mr. Roy has not taken the point of any violation of the constitutional right of non-discrimination under Article 15 of the Constitution. The points that he has taken may be summarised here as follows:

(3.) The first point is that under article 162 of the Constitution, the executive power of a State extends to matters in respect of which the Legislature of a State has power to make laws. Mr. Roy then refers me to Items 33 and 35 in the List II of the 7th Schedule annexed to the Constitution. Item 33 refers to "sports, entertainments & amusements", while item 35 refers to "works, lands and buildings vested in or in the possession of the Stale". Mr. Roy argues that the State Legislature would have power under one of these two items to legislate in respect of the subject matter of this case, namely permission to utilise a part of the property in the possession of the State Government, for the 'holding of a show for public amusement. From this he argues that the order granting permission, which as I have stated above, is an order passed by the Commissioner of police, Calcutta dated 4-11-1959, is an executive action of the State Government. He then refers me to Article 154 of the Constitution which lays down that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him, in accordance with the Constitution. Next he cites Article 166 which lays down that all executive actions of the Government of a State shall be expressed to be taken in the name of the Governor. It also lays down how such orders should be authenticated. The argument is that this order, which purports to be made on behalf of the Commissioner of Police, Calcutta, does not satisfy the provisions of the relevant articles in the Constitution. Mr. Roy points out that under Article 258, the President may, with the consent of the Government of a State, entrust a State with functions in relation to any matter to which the executive power of the Union extends. The argument is that in this case there has been no such entrustment. The second point taken is that the transaction really amounts to a contract, because there is a consideration, namely a contribution to the Military Welfare Fund. The argument is that such a contract is governed by the provisions of, Article 299 of the Constitution, which lays down that ail such contracts must be expressed to be made by the Governor and executed by such person and in such manner as he may direct or authorise. He says that this order does not satisfy the provisions of Article 299.