Mukul Gopal Mukherji, J.
1. The plaintiff is the appellant before, this Hon'ble Court impugning the judgments and decrees of both the Court's below whereby a claim for Rupees 2149.65 p. was refused.
2. It is the admitted case that the State of West Bengal had a scheme under the Small Irrigation Scheme sanctioned for re-excavating the tank on plot No. 2795 commonly known as Baradighi in mouza Bhonta under Police Station Ausgram. A total amount of Rs. 4777/- was sanctioned for the said purpose under the terms and conditions of the scheme of which the beneficiaries, would contribute 55% of the total cost of, re-excavation and the State of West Bengal would contribute 45% of the cost as grant. A works order Exhibit A was executed which reveals that the plaintiff was asked to take up the work immediately and complete the same by 30-6-1968. The said works order stipulated inter alia that tenders would be invited prior to the government share of work being undertaken and that would be so done after completion of the work for the share of beneficiaries and that the date of starting of the work must be intimated to the officer concerned. The Court of appeal below held that no tender was issued in respect of this 45% of the total sanctioned cost though the works order indicated that the plaintiff was asked to complete the beneficiaries' share of work to the tune of 55% by 30-6-1968. Since it was not the case of the plaintiff appellant that after completion of this 55% which fell in beneficiaries' share, he sent intimation to the Government and then commenced this other 45% of the government's share. According to the Court of appeal below even it the remaining 45% of work was undertaken by the plaintiff, that was so done without conforming to the terms and conditions of the works order Ext. A and hence the Court of appeal below held that the government could not be made liable for the same. Moreover in the absence of any formal contract within the meaning of Article 299(1) of the Constitution and there being no concluded contract, the plaintiff's claim was held unenforceable in law, even if it was accepted that the plaintiff actually re-excavated the tank both in the share of the beneficiary as well as in the share of the government.
3. The argument advanced by the appellant that the State was bound to recompense since Section 70 of the Contract Act would be called into play did not weigh with the learned Judge, and he was of opinion that even prior to the B. D. O.'s verbal instruction or assurance, the re-excavation work was undertaken. There appeared to him some doubt as to at what point of time the work was actually undertaken and if the same was commenced even prior to the issuance of the works order or the sanction of the scheme, the plaintiff was not entitled to contend that he actually did the government's share of the work pursuant to the terms of the works order. The learned Judge further held that the State Government did not derive any benefit by the work and since the stipulation to pay 45% was a were grant, the plaintiff could not get relief under Section 70 of the Contract Act, even if it was assumed that the plaintiff didthe government's share of work.
4. Mr. Durga Das Roy, learned advocateappearing on behalf of the appellant assailedthe judgments of both the Courts belowcontending inter alia that the Courts belowproceeded on wrong hypothesis that since nocontract was made in accordance with Article 299 of the Constitution of India, theState Government could not be made liableto pay the costs for the Government's shareof work. In that view the Courts below alsoerred, in holding that the provision of Section 70 of the Contract Act could not beinvoked by the plaintiff appellant in the present case, since there was no existence ofany contract. Despite the issue of worksorder by the defendant respondent, nodirect contractual relation had actually beencreated inter partes. That apart it wasfurther contended that despite toe plaintiffappellant having completed the work in question according to the works order (Ext. A)issued by the Government of West Bengal,he was entitled in law to be recompensedfor costs of Government's share of the contribution to the work. Furthermore it wasthe case of the appellant that Works Order(Ext. A) significantly established that theplaintiff was not entitled to do Government'spart of the work gratuitously. In ultimateanalysis. Mr. Roy appearing on behalf ofthe appellant, submitted that inasmuch asthe Government agreed to contribute towardsthe scheme to the extent of 45%, the plaintiff appellant would get relief under Section 70of the Contract Act. As regards the findingthat the State Government and not beenenriched by virtue of the work of the StateGovernment's share having been carried out,it is confirmed that though the owners andpersons haying right of irrigation from thetank were benefited under the scheme inquestion, it could not be contended that thecause of the State was not served and theplaintiff's lawful entitlement towards costsof 45% share of the work could not belegitimately refused.
5. The appeal has not been opposed by the State of West Bengal. I have gone through the evidence of P. W. 1 Subal Chandra Das, a Sub-Assistant Engineer attached to Raniganj Development Block who at the relevant time was posted at Guskara and supervised the work done under the Small Irrigation Scheme in respect of the tank Buradighi within mouza Bhonta. He submitted that Ext. A was given to the plaintiff on 22-3-1968. Plaintiff took about twenty days to complete the work of excavation. Ext. A is a works order for the 55% of the beneficiaries work, and further 45% related to Government part of the work. He denied the imputation that he made fictitious measurements so that the plaintiff could get the Government's share of 45%. P. W. 2 was Adhakshya of the Gram Panchayat of Bhonta named Sk. Borhan. He deposed infer alia to the effect that the plaintiff did the excavation work and the area of excavation was supervised by B. D. O., S. D. O., Gram Sebak etc. He took measurement of the excavation in order to meet the wages of the labourers. The Overseer took the measurements. The measurement of tank by Overseer was one lac and fifty one thousand cubic feet and this measurement agreed with that taken by him. The work began from February 68 and ended in March 68. Abhoy Babu the Gram Sebak did only inspect the excavation but he did not take measurement. He did this measurement in the first part of Feb. 68 the jalkar of the said lank in order to give an estimate for the excavation work. He denied that one lac and fifty one thousand cubic feet earth was not excavated but he and the plaintiff and the A. S. O. colluded together and showed the said measurement to the Government in order to realise money from the Government. P. W. 3 was the plaintiff himself who showed the excavation on the part of the Government to the Overseer, who in his turn recorded the measurement in the measurement-book. He excavated more than the scheduled work i. e. more than one lac fifty one thousand and eight hundred cubic feet. He began to work before getting the work order. B. D. O. asked him to do so. He completed work more than what was given by the works order in respect of both the Government's share and the owner's share of work. Hemendra Chandra Seth asked him to carry on the work pending issuance of the Works order. The State of West Bengal neither repelled the said evidence nor brought in its witnesses to deny the factum of completion of work by the plaintiff.
6. After giving my anxious consideration to the facts and circumstances of the present case. I think that the plaintiff has been able to make out a case that he lawfully did undertake the excavation work even in respect of the 45% share of the government's contribution on the assurance of B. D. O., not intending to do the said work gratuitously. It is not a case where the purpose of Government's scheme has not been fulfilled and as such the case is not one where the State Government's object bag not been cherished. The State Government in the facts and circumstances of the present case was to make compensation to the plaintiff for the work undertaken by him in this regard. It is manifestly clear also that the plaintiff has undertaken the work not intending to do the work gratuitously. Since the Government's purpose had been achieved, it cannot be contended that the State Government failed to derive any benefit out of it. It is not for the actual benefit of the Government by way of realisation of cess etc. but it is for the public cause that such schemes are undertaken. I think that the claim for compensation under Section 70 of the Contract Act would be in proportion to the benefit enjoyed and does not only flow from any contractual right. It has to be borne in mind that it is not outside the operation of Section 70 of the Contract Act. The plaintiff is indeed entitled to get compensation for the trouble he had taken in taking up the excavation work on the avowed assurance of the Govt. representatives that he would be recompensed and as such, I can infer that the plaintiff did, not intend to do the act gratuitously. It cannot also be contended that by resorting to this excavation work, the plaintiff landed himself into an unlawful act. The issuance of the works order later on clinches the issue that the purpose was lawful It is also beyond the competence of the State Government to contend that in a welfare State the excavation work did not enure to the benefit of the public for whose benefit the act was resorted to. Even if, the rigours of Article 299(1) of the Constitution of India in effecting a contract with the Government, make the contractual rights against the Government unenforceable, that does not mean, and imply that the principles enunciated in Section 70 of the Contract Act could not be called into play so as to make the Government exempt from the liability to pay compensation therefor. The principle was upheld by the Supreme Court in : 2SCR859 , New Marine Coal Company (Bengal) Pvt. Ltd. v. Union of India and : 3SCR214 , Mulamchand v. State of Madhya Pradesh. In both these cases the contract being found to be void and unenforceable because of non-conformance to Article 299(1) of the Constitution or Section 175(3) of the Government of India Act, 1935, the provisions of Section 70 of the Contract Act were found available to the aggrieved party so as to impose upon the Government the liability to make compensation to the aggrieved party. The aggrieved party cannot sue for the specific performance of the contract nor ask for the damages for the breach of the contract since there is in the eye of law no contract between him and the Government because of the express and mandatory provisions in the Constitution regarding execution of the contract with the Government. Yet where a claim for compensation is made, the juristic basis of the obligation is not founded upon any contract or tort but upon a third category of law namely quasi-contract or restitution, provided of course, the plaintiff adduces evidence in support of his claim. The plaintiff having discharged his onus in this regard by examining witnesses who include the Overseer and the Adhakshaya of the Gram Panchayat and there not having been any evidence by way of rebuttal on the part of the State Government, (the defendant in the case), the plaintiff is entitled to a decree for Rupees 2149/65 p. as prayed for, being 45 per cent of the total estimated cost of Rs. 4777/-.
7. This second appeal thus stands allowed.
8. The judgments and decrees of both the Courts below are accordingly set aside and the suit be decreed on contest. The claim for interest is disallowed. The plaintiff however will be entitled to the costs of both the Courts below but I make no order as to costs in the second appeal.