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Karamshi Jethabhai Somayya Vs. the State of Bombay - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1964SC1714; [1964]6SCR984
ActsGovernment of India Act, 1935 - Sections 175(3); Bombay Irrigation Act, 1879 - Sections 27 to 30; Bombay Tenancy and Agricultural Lands Act, 1948; Bombay Canal Rules, 1934 - Rules 18 and 19
AppellantKaramshi Jethabhai Somayya
RespondentThe State of Bombay
Cases ReferredUnion of India v. Rallia Ram
Excerpt:
the case debated on whether the agreement concluded by superintending engineer was hit by section 175 (3) of the government of india act, 1935 and it also questioned whether permission was needed for transfer of right in respect with supply of irrigation water - it was held that the documents in the instant case record a concluded agreement between the superintendent engineer, acting on the order of the minister of public works department - the provisions of bombay irrigation act established that every person describing to have from a canal should apply in the prescribed manner to the canal officer and that person to whom water was supplied could not transfer his right to another permission of the canal officer. - sections 115 & 47: [markandey katju & v.s. sirpurkar,jj] revisional.....subba rao, j. 1. this appeal by special leave is directed against the judgment and decreeof the high court of bombay confirming those of the civil judge, seniordivision, ahmednagar, in special civil suit no. 6 of 1953 filed by theappellant against the state of bombay for a declaration of his right to waterfrom a particular source, and for consequential reliefs. 2. the appellant is the owner of shankar tukaram karale rampur farm,situated at the tail-outlet of the godavari right bank canal distributary no.17. the lands comprised in the said farm originally belonged to shankar tukaramkarale, hereinafter called karale. in the year 1935 the said karale had a farmfor raising sugarcane consisting of 35 acres owned by him and about 65 acres ofland taken on lease by him in ahmednagar district. he.....
Judgment:

Subba Rao, J.

1. This appeal by special leave is directed against the judgment and decreeof the High Court of Bombay confirming those of the Civil Judge, SeniorDivision, Ahmednagar, in Special Civil Suit No. 6 of 1953 filed by theappellant against the State of Bombay for a declaration of his right to waterfrom a particular source, and for consequential reliefs.

2. The appellant is the owner of Shankar Tukaram Karale Rampur Farm,situated at the tail-outlet of the Godavari Right Bank Canal Distributary No.17. The lands comprised in the said Farm originally belonged to Shankar TukaramKarale, hereinafter called Karale. In the year 1935 the said Karale had a farmfor raising sugarcane consisting of 35 acres owned by him and about 65 acres ofland taken on lease by him in Ahmednagar District. He obtained sanction toirrigate his lands on the outlet No. 17 of the Godavari Right Bank Canal. In orabout the same year the Government of Bombay proposed to reserve certain areaalong the said Distributary Canal as 'factory area'. After somecorrespondence between the said Karale and the Government of Bombay, it was theappellant's case, the Superintending Engineer agreed on July 14, 1939, toexclude Karale's lands from the factory area and also to give him waterperpetually on condition that he concentrated all his holding on the tailoutlet of Distributary No. 17 and to take the supply of water on volumetricbasis. Pursuant to that arrangement, Karale, by purchase or otherwise,concentrated his holdings and shifted his operations to that area and he wassupplied water on the agreed basis. In or about April 1948, the appellant theKarale entered into a partnership for exploiting the said area whereunder theappellant had three-fourth share and the said Karale had one-fourth share.Later on disputes arose between the appellant and Karale in respect of thepartnership which culminated in a consent decree dated February 7, 1951,whereunder the appellant become and the full owner of the partnership businesswith all its asset and liabilities, including the lands and the compact blockand the right to use the canal water. When the appellant applied for therecognition of the transfer, the Canal Officer refused to do so. On appeal, hewas informed that his request for the supply of canal water could not begranted. From April 1952 the supply was stopped. After giving the statutorynotice under s. 80 of the Code of Civil Procedure, the appellant filed SpecialCivil Suit No. 6 of 1953 in the Court of the Civil Judge, Senior Division,Ahmednagar, against the State of Bombay for a declaration that plaintiff wasentitled to the supply the use of water from the tail outlet of DistributaryNo. 17 of the Canal to irrigate 100 acres of basic cane land in the concentratedarea described in Schedule II at the rates prescribed by the Government underthe Irrigation Act on a volumetric basis, for specific performance of theaforesaid agreement between Karale and the Government, for recovery of damages,and for other incidental reliefs. The State of Bombay filed a written-statementcontending, inter alia, that there was no concluded agreement between theGovernment and Karale embodying the alleged terms stated in the plaint, thateven if there was such an agreement, it was void inasmuch as it did not complywith the provision of s. 175(3) of the Government of India Act, 1935, and that,in any view the appellant could not legally get the benefit of the agreementunder s. 30 of the Bombay Irrigation Act, 1879. On the pleadings as many asseven issues were framed reflecting the contentions of the parties. The learnedCivil Judge held that there was a concluded agreement between the Governmentand Karale on the terms alleged by the appellant, but the transfer by Karale ofthe said right in favour of the appellant was in violation of the provisions ofthe Bombay Tenancy and Agricultural Lands Act, 1948, and, therefore, there wasno legal transfer of Karale's right of water in favour of the appellant. Inthat view, he dismissed the suit. On appeal, the High Court held that there wasneither a concluded agreement between Karale and the Government nor did itcomply with the requirements of law. In the result the appeal was dismissed.Hence the present appeal.

3. The arguments of Mr. M. K. Nambiar, learned counsel for the appellant,may be summarized under the following heads : (1) There was a concludedagreement between Karale and the statutory authority, the Canal Officer,whereunder the said Karale was entitled to get water to his compact blockpermanently from the tail outlet of Distributary No. 17 of the Godavari RightBank Canal so long as he was willing to pay the rates for such supply onvolumetric basis. (2) As under the compromise decree between Karale and theappellant the said block of land was transferred to the appellant, the rightunder the agreement for the supply of canal water was also transferred to himunder s. 30 of the Bombay Irrigation Act, 1879 (Bombay Act No. 7 of 1879),hereinafter called the Act. (3) Section 175(3) of the Government of India Act,1935, does not apply to the agreement in question for the following reasons :(i) once the Legislature covers any matter by the enactment of any statute, anyfunctional power assigned to the Government or any other authority under thesaid statute is exercisable only under that statute and in virtue of thestatutory authority and not in the exercise of the executive authority of theProvince within the meaning of s. 175(3) of the Government of India Act, 1935;(ii) the agreement contemplated by s. 30 of the Act is an agreement enteredinto under the Act by a statutory authority in pursuance of a statutory powerwith the statutory consequences and, therefore, such an agreement is outsidethe provisions of s. 175(3) of the Government of India Act, 1935; and (iii)that apart, the expression 'agreement' in s. 30 of the Act does notmean a formal contract, but only a sanction, permission or consent given by theCanal Officer pursuant to the authority given to him under the Act, and,therefore, such sanction, permission or consent is not a contract within themeaning of s. 175(3) of the Government of India Act, 1935.

4. This appeal raises a question of far-reaching importance as regards thescope of the executive authority exercised by the Governor under the Governmentof India Act, 1935; but, we are relieved of the duty to express our opinion onthat question in this appeal in view of our finding that the agreement inquestion was arrived at outside the provisions of the Act and, therefore, itsquarely falls within the scope of s. 175(3) of the Government of India Act,1935.

5. We shall at the outset address ourselves to the said agreement, namely,(i) who are the parties to the said agreement; and (ii) what are the terms thereof?

6. When the suit was pending decision of the Civil Court, the appellantfiled an application therein for directing the Government to produce, amongothers, the applications made to the Government from time to time by Karale inrespect of supply of water to his farm in the year 1935 and subsequent theretoand the office copies of the replies sent to the said applications, theGovernment documents and papers, water-bills and the records in respect of thesupply of water to the land belonging to Karale from the year 1935, and thecorrespondence that passed between Karale and the Government between 1935 and1939 in respect of consolidation of his lands. Obviously these papers wererequired by the appellant for establishing the case that there was a concludedagreement between Karale and the Government or the Canal-officer. But,unfortunately, the said documents were not produced. It is not clear from therecord why and under what circumstances the Government withheld the documentsfrom the court, but in appeal the High Court in its judgment remarked :'In the trial Court no attempt was made to have this endorsement producedin Court which could have been done if the plaintiff's Counsel had so desiredby a proper application to the Court'. But the High Court felt that it wasabsolutely necessary in the interests of justice to call upon the learnedGovernment Pleader to produce the file with reference to that particularendorsement, namely, Endorsement No. 3033/36-1 dated 28th April 1939, anddirected him to do so. It disposed of the appeal after receiving the saidrelevant document. Though the High Court threw the blame for this lapse on theappellant, we do not think there was any justification for it. Apart from thefact that the appellant asked for the production of all the relevant documents,the Government, being the defendant in this case, should have produced thedocuments relevant to the question raised. While it is the duty of a privateparty to a litigation to place all the relevant matters before the Court, ahigher responsibility rests upon the Government not to withhold such documentsfrom the court. Be that at it may, the documents were finally produced beforethe court, and the High Court considered the same in arriving at itsconclusion. Though Mr. Nambiar suggested that the said documents related tosome other party, as we will indicate in the course of the judgment, the saidfile dealt also with the agreement alleged to have been entered into betweenKarale and the Government.

Exhibits Nos. D-67 and D-68 are the documents on which strong reliance isplaced on behalf of the appellant. Exhibit D-67 reads thus :

Below Government endorsement No.3033/36-1 dated the 28th April 1939 :

No. 4223 of1939

Poona, 14th July, 1939.

Returned with compliments.

2. The applicant has already beenallowed to continue his present cane irrigation of 93 acres on outlets 2 andTail of Distributary 17 of the Godavari Right Bank Canal for one year from15-2-1939 pending consideration of his case in detail, in relation to thedemand of the Sugar Company formed by Messrs. Jagtap & Khilari on thiscanal and lately named the 'Changdeo Sugar Factory'.

3. In view however of the ordersissued verbally by the Hon'ble Minister, Public Works Department on 12-7-1939the applicant is being allowed to concentrate all his cane irrigation to theextent of 100 acres on the tail outlet of Dy 17 of the Godavari Right BankCanal by 15-2-1940 and to continue it permanently there if he so wishesprovided he agrees to take water by measurement on volumetric basis of112' at the outlet head and pay the water rates that may hereafter besanctioned by Government in this respect. The applicant has since signified hiswillingness to these conditions. He will be charged, till then on the area basisas is done at present.

4. The area thus allowed to theapplicant will be excluded from the Sugar Factory area while fixing theboundaries of the allotted factory area of the 'Changdeo SugarFactory' on this canal.

D. A. Marathi petition.

(Sd.) W.H.E.GARROD,

Superintendent Engineer, D.I.C.

Copy, with compliments, to theExecutive Engineer, Nasik Irrigation Division, for information and guidancewith reference to the correspondence ending with this office No. 3686 dated22-6-1939.

Exhibit D-68 is a letter written by the Superintending Engineer to Karale.It reads :

No. 4224 of1939

Poona, 14th July 1939.

To

Shankar Tukaram Karale, Esquire,at Belapur. Continuation of cane irrigation on Distributary No. 17 of theGodavari Right Bank Canal.

Dear Sir,

In continuation of this officeNo. 3686 dated 23rd June 1939, I have to inform you that under orders of theHonourable Minister, Public Works Department, you will be allowed to irrigatecame to the extent of 100 acres of the tail outlet of Distributory No. 17 ofthe Godavari Right Bank Canal permanently, so long as you may wish to do so, oncondition that you agree to take canal water by measurement on volumetric basisof 112' depth at the outlet head at the rate which may be sanctioned byGovernment hereafter.

(2) This will apply to new caneplantation from 15-2-1940 onwards. Till then, you may continue your caneirrigation on outlets 2 and tail as at present.

Yoursfaithfully,

(Sd.) W.H.E.Garrod,

Superintending Engineer,

Deccan Irrigation Circle.

Copy, with compliments, to theExecutive Engineer, Nasik Irrigation Division, for information.

7. A fair reading of these two documents leaves no room for doubt that afirm agreement was entered into between the Government and Karale in respect ofthe supply of water to his land to the extent of 100 acres on the tail outletof Distributary No. 17 of the Godavari Right Bank Canal. These two letters showthat there was previous correspondence between the Engineering Department andKarale and that the Minister of Public Works Department intervened and settledthe terms of the agreement, and that the terms were communicated to Karale, whoaccepted the same. The terms of the agreement were, (i) Karale was allowed toconcentrate all his cane irrigation to the extent of 100 acres on the tailoutlet of Distributary No. 17 of the Godavari Right Bank Canal by February 15,1940, and to continue it permanently, if he so wished; (ii) Karale agreed totake water by measurement on volumetric basis of 112' at the outlet headand to pay water rates that might thereafter be sanctioned by the Government inthat respect; (iii) the said area will be excluded from the sugar factory areawhile fixing the boundaries of the allotted sugar factory area of ChangdeoSugar Factory; and (iv) the terms will apply to new cane plantation fromFebruary 15, 1940 onwards. It is said that the word 'permanently'refers to cultivation, but not to supply of water. This interpretation makesthe, entire contract meaningless. Sugar cultivation can be done only with thepermission of the department, for sugarcane crop cannot be raised withoutsupply of water from the canal. When the Superintending Engineer allowed Karaleto concentrate all his cane irrigation in the said area permanently oncondition he paid the prescribed rates, it was necessarily implied in the saidagreement that he would supply water permanently, if the said rates were paid.Cultivation and supply of water are so inextricably connected that one cannotbe separated from the other. The permission to have cane irrigation permanentlyon the basis of a particular rate implies that the supply for irrigation isco-terminous with irrigation. In this view we must hold that Exs. D-67 andD-68, read together, record a concluded agreement between the SuperintendingEngineer, acting on the orders of the Minister of Public Works Department, onthe one hand and Karale on the other, agreeing to supply water so long asKarale had cane cultivation in the concentrated area. The other documents, readalong with the documents filed for the first time in the High Court, also donot detract from this conclusion. Exhibit D-78, which is not dated, was theapplication filed by Karale to the Chief Minister, P.W.D. and IrrigationDepartment, Bombay. Therein Karale represented to the Chief Engineer thatDistributary No. 17 was permanently closed prior to 1935, that he wasresponsible for starting the said Distributary by commencing plantation, thatthe 'Prime Minister's' consent gave him an assurance that whiledeclaring the factory area, the area of the previous gardeners would beexcluded from the said area, that he had invested a capital of about Rs.75,000/- for raising the plantation and that in the circumstances he prayedthat while declaring the factory area, his land should be excluded therefrom.This application was considered by the concerned office under G.L. No. 3033/36dated April 27, 1939. In the note put up by the office the contents of the saidapplication are summarized. Thereafter the following note is found :

'With reference to the H.M.R.D.'s note dated3-4-1939 it may be observed that Government has already accepted the principlethat no ordinary irrigators should be allowed to operate in the sugar factoryarea. Under the general orders issued on the subject owner irrigators are to beallowed to continue irrigation, on yearly basis. It is for considerationwhether this fact may be brought to the notice of the H.M.R.D. If it is decidedto do so the papers may be submitted to the H.M., P.W.D. and the H.M.R.D. afterthe drafts put up are issued.'

8. The Revenue Minister accepted the endorsement. This is only an officenote and the suggestion that the irrigators should be allowed to continue onthe yearly basis was only to prevent further applications after the factoryarea was declared. This endorsement had nothing to do with the exclusion of anyparticular area from the sugar factory area. The endorsement 'shouldsee' below the endorsement made by the Revenue Minister perhaps meant thatthe papers should be submitted to the Minister concerned. Exhibit D-79 is aletter written by the Deputy Secretary to the Government of Bombay to ChangdeoSugar Mills. This letter also refers to the office endorsement No. 3033/36-1.Though we are not directly concerned with this letter, it may be mentioned thatthe application of Karale is connected with the proposal to declare certainarea as factory area and to give water to Changdeo Sugar Factory in respect ofthe lands in that area, for his application was to exclude his area from thefactory area. Both the matters obviously were dealt together. Exhibit D-79A isagain part of the file relevant to the factory area. But a reference is madeagain to the office No. 3033/36-1 and in the same file Karale's letter is alsonoticed. Exhibit D-81 is an endorsement at page 133 of the same file, whichalso deals with the subject 'sugar factories'. It contains a copy ofthe letter written to the Superintending Engineer requesting him to submit at avery early date a draft agreement for the supply of water to the company's areaon the Godavari Right Bank Canal on the terms embodied in the margin thereof.Exhibit D-82 is also another endorsement on the same file. The endorsementreads thus :

Endorsement at 191.

3033/36

1114

Discussed with the Secy.

9. In addition to his written requests, Mr. Karale had also interviewed thelate H.M.R.D. During the discussions, H.M. had made it clear that Mr. Karalecan only be allowed to continue if he was willing to consolidate his holdingsin an independent block so that the Co.'s cultivation be carried onundisturbed.

10. This is not recorded on this file as H.M. did not pass any orders inBombay or at the Secretariat but instructed (Presumably after discussion withMr. Sule) the S.E.D.I.C. in the matter.

11. Please see P. 107 ante. That Mr. Karale's cane has to be shifted to oneblock is clear from the wordings of the S.E.S. letter. 'The applicant isallowed to concentrate all his cane. ..... on the tail outlet of D. 17'.This is the only record of the orders passed.

12. Moreover Mr. Karale is to have his supply on a volumetric basis as soonas that can be arranged for. This would necessitate the concentration of hiscane areas.'

13. This endorsement notices the contents of Ex. D-67 and, therefore, itmust have been made only after April 28, 1939. The said documents do not carrythe matter further. They only show what we have already noticed, namely, theGovernment wanted to create a factory area and that Karale filed an applicationto have his area excluded therefrom. The notings of the department are not inany way inconsistent either with Ex. D-67 or with Ex. D-68. Exhibits D-67 andD-68 refer to Office No. 3686 dated June 23, 1939, and that letter must havebeen in some other file and that file was not produced and, if produced, itmight have thrown some more light. In the circumstances we must proceed on thebasis that Exhibits D-67 and D-68 embodied the terms of the agreement enteredinto between the Government and Karale pursuant to the application, Ex. D-78,made by him to the Chief Engineer, P.W.D. We have already held that the saiddocuments record the completed agreement between the Government and Karale inrespect of supply of water to his land.

14. Even so, the question arises whether the said agreement is enforceable,if it has not complied with the provisions of s. 175(3) of the Government ofIndia Act, 1935. The premises on which Mr. Nambiar built his argument is thatthe said agreement was entered into between the parties under the provisions ofthe Act. If it was not made under the provisions of the Act, but outside theAct, the foundation for this argument would disappear. We would, therefore,proceed to consider now whether the said agreement was under the provision ofthe Act.

15. The relevant provisions of the Act may now be read. Section 3(6) defines'Canal-Officer' to mean any officer lawfully appointed or investedwith powers under section 4. Under s. 4, such officer can exercise powers anddischarge duties that may be assigned to him by the State Government. It issaid that the Superintending Engineer was one of the officers so appointed bythe Government and that the powers under Sections 27 to 30 of the Act were assignedto him. Under s. 27, 'Every person desiring to have a supply of water froma canal shall submit a written application to that effect to a Canal-Officerduly empowered to receive such applications, in such terms as shall from timeto time be prescribed by the State Government in this behalf'. Under s.29, 'When canal-water is supplied for the irrigation of one or more cropsonly the permission to use such water shall be held to continue only until suchcrop or crops shall come to maturity, and to apply only to such crop orcrops'. Under s. 30, 'Every agreement for the supply of canal-waterto any land, building or other immovable property shall be transferabletherewith, and shall be presumed to have been so transferred whenever atransfer of such land, building or the other immovable property takesplace.' But under the second limb of the section, 'except in the caseof any such agreement as aforesaid, no person entitled to use the water of anycanal, shall sell or sub-let, or otherwise transfer, this right to such usewithout the permission of a Canal-Officer duly empowered to grant suchpermission'. A combined reading of these provisions establishes that everyperson desiring to have supply of water from a canal shall apply in theprescribed manner to the Canal-Officer and that the person to whom water issupplied cannot transfer his right to another without the permission of theCanal-Officer. But if the land in respect whereof the water is supplied istransferred, the agreement for the supply of water also shall be presumed tohave been transferred along with it. The expression 'agreement' in s.30 of the Act, it is contended, does not connote a contract as understood inlaw, but only a convenient mode of expression to indicate the sanction orpermission given by the Canal-Officer. This meaning of the expression'agreement' is sought to be supported by a reference to the BombayCanal Rules, 1934, made in exercise of the powers conferred on the StateGovernment under s. 70(e) of the Act. Part II of the Rules deals with supply ofwater. It provides for the filing of applications, the manner of their disposaland the persons entitled to dispose of the same, and also the mode of supply ofwater for cultivation of different crops. The forms prescribed columns underdifferent heads for giving the necessary particulars. The forms contain theinstructions as well as conditions on which permission will be granted. Rule 7says that an application for supply of water for the irrigation of land for anyperiod may be sanctioned, indicating thereby that there is no maximum periodfixed for which application for supply of water can be made. Assuming withoutdeciding that 'agreement' under s. 30 of the Act means only sanction,the Act and the Rules provide for an application to be made to the ExecutiveEngineer, who, subject to the Rules, can give the sanction. Rule 36 providesfor an appeal from the order of the Executive Engineer to the SuperintendingEngineer, and from that of the Executive Engineer's order under r. 18 or r. 19to the Collector. But there is no provision either in the Act or in the Rulesmade thereunder enabling any party to make an application to the Chief Engineerto exclude his land from factory area, and to give him supply of water forirrigating the said land permanently, or a power to the Government to enterinto an agreement or make an order in respect of such an application. Such anorder or agreement is entirely outside the scope of the Act or the Rules madethereunder. We are not called upon in this case to decide whether the Governmenthas any such power outside the Act; but, we shall assume for the purpose ofthis case that it has such power and to proceed to consider the legal argumentson that basis.

16. The documentary evidence adduced in this case, which we have alreadyconsidered, discloses that the application was made to the Chief Engineer; thatthe Government, through the relevant ministry, considered the application andthat on the instructions given by the concerned Minister, the SuperintendingEngineer wrote the letter Ex. D-68 to Karale. It was, therefore, in effect andsubstance, an agreement entered into between the Government and Karale. Such anagreement fell outside the provisions of the Act. The parties to the agreementalso understood that it was an agreement made between the Government andKarale. The Government in or about February 1942 sent a draft agreement toKarale for execution regarding the supply of canal-water to his farm, but thesaid Karale did not execute the agreement. The parties did not agree in regardto some of the conditions found in the draft, but Karale did not contest theposition of the Government that a formal agreement in compliance with theprovisions of law was necessary. Again during the continuance of thepartnership between Karale and the appellant, in or about 1950, the Governmentof Bombay sent another draft agreement to the said Karale for execution. ThoughKarale signed the agreement, he insisted upon a proviso that the agreementshould be without prejudice to the permission already granted to him. TheBombay Government did not execute the said agreement. So too, Karale and theappellant were making yearly applications under the Act and getting supply of waterto their plantation. That procedure was presumably followed because, thoughthere was an agreement between Karale and the Government, for one reason orother, a formal document, though intended to be executed, was not executed.This conduct on the part of the Government as well as that on the part ofKarale and the appellant also establishes that the agreement was not under theAct, but between the Government of Bombay and Karale. If so, it follows thatthe contract entered into between the Government and Karale was a contract madein the exercise of the executive authority of the Province within the meaningof s. 175(3) of the Government of India Act, 1935. The relevant part of s.175(3) of the Government of India Act, 1935, read :

'All contracts made in the exercise of theexecutive authority of a Province shall be expressed to be made..... by theGovernor of the Province.....and all such contracts and all assurances ofproperty made in the exercise of that authority shall be executed on behalf ofthe.....Governor by such persons and in such manner as he may direct orauthorise.'

17. This section laid down two conditions for the validity of such acontract, namely, (i) it should be expressed to be made by the Governor of theProvince, and (ii) it should be executed on behalf of the Governor by suchpersons and in such manner as he might direct or authorize. We have nothing onthe record to disclose whether the Superintending Engineer, though he actedunder oral instructions of the Minister, was authorized by the Governor orunder relevant rules to enter into such a contract. That apart, even if Exs.D-67 and D-68 together were treated as forming part of a contract entered intobetween the Government and Karale, can it be said that the said contract was expressedto be made in the name of the Governor Ex facie it cannot be said so. But itis contended that on a liberal construction, which we should adopt in a casewhere the Government is trying to go back on its solemn promise, such aformality can easily be read into the said documents. Before we construe thesaid two documents in order to ascertain whether such a formality has beencomplied with or not, it would be convenient to notice some of the decisions ofthis Court. The question of construction of s. 175(3) of the Government ofIndia Act, 1935, directly arose for decision in Seth Bikhraj Jaipuria v. Unionof India : [1962]2SCR880 . There, the Divisional Superintendent, EastIndian Railway, placed certain orders with the appellant for the supply offoodgrains for the employees of the said Railway. The orders were not expressedto be made in the name of the Governor-General and was not executed on behalfof the Governor-General as required by s. 175(3) of the Government of IndiaAct, 1935. They were signed by the Divisional Superintendent either in his ownhand or in the hand of his Personal Assistant. This Court held that thecontracts, not having been expressed to be entered into by the Governor-Generaland not having been executed on his behalf, were void. This Court held that theprovisions of s. 175(3) of the Government of India Act, 1935, were mandatoryand, therefore, the contracts were void. This decision was followed by thisCourt in New Marine Coal Co. v. The Union of India : [1964]2SCR859 .Reliance is placed by the learned counsel for the appellant on the decision ofthis Court in Union of India v. Rallia Ram : [1964]3SCR164 in support ofhis contention that though ex facie Exs. D-67 and D-68 do not show that thecontract was expressed to be made in the name of the Governor, the said factcould be inferred from the recitals. There, the goods offered to be soldbelonged to the Government of India. A tender notice was issued by theGovernment of India, Department of Food (Division III), in the name of theChief Director of Purchases. The Chief Director of Purchases agreed to sell thegoods on certain conditions to the respondent and incorporated them in theacceptance note, which was also headed 'Government of India, Department ofFood (Division III), New Delhi'. The general conditions of contract, whichaccompanied the letter of acceptance, defined Government as meaning theGovernor-General for India in Council. On the said facts this Court held thatthe correspondence between the parties ultimately resulting in the acceptancenote amounted to a contract expressed to be made by the Government and,therefore, by the Governor-General, 'because it was the Governor-Generalwho invited tenders through the Chief Director of Purchases and it was theGovernor-General who, through the Chief Director of Purchases, accepted thetender of the respondent subject to the conditions prescribed therein'.Though in the acceptance note it was not expressly stated that the contract wasexecuted on behalf of the Governor-General, on a fair reading of the contentsof the letter in the light of the obligations undertaken thereunder, it washeld that the contract was executed on behalf of the Governor-General. Thisdecision does not depart from the principle accepted in Seth Bikhraj Jaipuria'scase : [1962]2SCR880 . On a fair reading of the correspondence this Courtconstrued that the contract was entered into on behalf of the Governor-Generaland expressed to be made in his name. Can it be said that in the present caseExs. D-67 and D-68 disclose that the Superintending Engineer was authorized toenter into a contract of the nature mentioned therein on behalf of theProvincial Government and that the contract was expressed to be made in thename of the Governor Nothing has been placed before us to establish that theSuperintending Engineer was legally authorized to enter into such a contract onbehalf of the Government; nor do the documents ex facie show that the agreementwas expressed to be made in the name of the Provincial Government. The lettersmentioned the name of the Minister of the Public Works Department and also theGovernment, in the context of the rates that might be fixed thereafter, but thesaid documents did not purport to emanate from the Governor. At best they wereissued under the directions of the Minister. We find it difficult to stretchthe point further, as such a construction will make the provisions of s. 175(3)of the Government of India Act, 1935, nugatory. We cannot, therefore, hold thateither the contract was entered into by the person legally authorized by theGovernment to do so or expressed to be made in the name of the Governor. Theagreement is void, as it has not complied with the provisions of s. 175(3) ofthe Government of India Act, 1935.

18. In this view, it is not necessary to express our opinion on otherinteresting questions raised in this case.

19. In the result, the appeal fails and is dismissed, but in thecircumstances, without costs.

20. Appeal dismissed.


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