# KARAMSHI JETHABHAI SOMA YY A v. THE STATE OF BOMBAY

- **Citation:** [1964] 6 S.C.R. 984
- **Court:** Supreme Court of India
- **Decided:** 1964-03-03
- **Case number:** Civil Appeal No. 552 of 1962
- **Bench:** K. SUBBA RAo, K. 'c. DAS GUPTA, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/karamshi-jethabhai-soma-yy-a-v-the-state-of-bombay-3237
- **Pages:** 18

## Headnote

Agreement-Concluded by Superintending Engineer-If hit by •· 17'(3)
of Government of India A.ct-SuPply of Irrigation water-Trall6fer
of right-If permission needed-Government of India A.ct, 1935
(26 Geo. v. Ch. 2), s. 175(3). Bombay Irrigation A.ct, 1879 (Bom.
of 1879), ss. 3(6), 4, 27-30.
One K had obtained sanction to irrigate certain lands from a canal.
The same year the Government proposed to reserve certain area along
the canal as factory area. According to the appellant after some correspondence between the Government and K, the Superintending Engi~
neer agreed to exclude K's land from the factory area and also to &ive
water perpetually on the condition that he concentrated all his holding
on the tail outlet of the canal
an'd to take the supply of water on
volumetric basis. Pursuant to that arrangement, K concentrated his hold·
ings and shifted his operations to that area and he was supplied water
on the agreed basis. Later the appellant and K entered into a partnership in respect of exploiting this area.
Disputes arose between the
appellant and K which culminated in a consent decree whereunder the
appellant became the full owner of the land including the right to use
this canal water. When the appellant
applied for the recognition of
the transfer the canal officer refused to llo so. On appeal he was inform•
ed that his request for supply of the canal water could not be granted.
The supply was stopped. After giving them statutory notice under s. 80
of the Code of Civil Procedure, the appellant filed a suit against the State
for a declaration of his right to water from the canal and for consequential reliefs. The State contested the suit contending, inter alia, that
there was no concluded agreement between the Government and K, that
even so, the agreement was void inasmuch as it ttid not comply with
the provisions of s. 175(3) of the Government of India Act. 1935 and
in any view the appellant could not les:ally get the
benefit of the
agreement under s. 30 of the Bombay Irrigation Act. The Civil Judge
held that there was a concluded agreement between the Government
and K. but the transfer by K of the said right in favour of the appellant was in violation of the provisions of the Bombay Tenancy and
Agricultural Lands Act and dismissed the suit. On appeal, the High
Court held that there was neither a conclu\led agreement between K
and the Government nor did it comply with the requirements of law,
and the appeal was dismissed. On appeal by special leave:
Held: (i) The documents in the
instant case record a concluded
agreement between the Superintendent Engineer, acting on the order of
..
..
6 S.C.R.
SUPREME COURT REPORTS
the Minister of Public Works Department, on the one band and K on
the oiber agreeing lo supply water so long as K bad cane cultivation
in the conccntrate'd area.
196~
Karamshi Jetlia·
bhai
(ii) The
provisions
of Bombay Irrigation Act establishes that St 1 of vBomba
every person desiring to have supply of water from a canal shall apply
a •
Y
in the prescribed manner to the Canal Officer and that person to whom
water is supplied cannot transfer bis ·right to another without the pennission of the Canal Officer. But if the land in respect whereof the waler
is supplied is transferred, the agreement for the supply of water also
1ball be presumed to have .. been transferred alona with it •
(iii) The comiuct on the part of the Government as well as that on
the part of K and the appellant also establishes that the agreement was
not under the Bombay Irrigation Act, but between the Government
and K.
..
• (iv J The asreement is void. as it bas not complied with the provisions
of s. 17S (3) of the Government of India Act. The contract was not
either entere\I into by the person legally authorised by the Government
to do so or expressed to be made in the name of Governor.
Seth Bikhraj laipuria v: Union of lndia, [1962] 2 S.C.R. 860 and
New Marine Coal Co. v. Union of India, [1964] 2 S.C.R. 8S9, referred to.
Union of India v.

## Text

_Characters 0–39,927 of 40,185. This is a partial read: ask again with offset=39927 for what follows._

1964
March 3.
SUPREME COURT REPORTS
KARAMSHI JETHABHAI SOMA YY A
v.
THE STATE OF BOMBAY
(K. SUBBA RAo, K. 'c. DAS GUPTA AND
RAGHUBAR DAYAL JJ.)
Agreement-Concluded by Superintending Engineer-If hit by •· 17'(3)
of Government of India A.ct-SuPply of Irrigation water-Trall6fer
of right-If permission needed-Government of India A.ct, 1935
(26 Geo. v. Ch. 2), s. 175(3). Bombay Irrigation A.ct, 1879 (Bom.
of 1879), ss. 3(6), 4, 27-30.
One K had obtained sanction to irrigate certain lands from a canal.
The same year the Government proposed to reserve certain area along
the canal as factory area. According to the appellant after some correspondence between the Government and K, the Superintending Engi~
neer agreed to exclude K's land from the factory area and also to &ive
water perpetually on the condition that he concentrated all his holding
on the tail outlet of the canal
an'd to take the supply of water on
volumetric basis. Pursuant to that arrangement, K concentrated his hold·
ings and shifted his operations to that area and he was supplied water
on the agreed basis. Later the appellant and K entered into a partnership in respect of exploiting this area.
Disputes arose between the
appellant and K which culminated in a consent decree whereunder the
appellant became the full owner of the land including the right to use
this canal water. When the appellant
applied for the recognition of
the transfer the canal officer refused to llo so. On appeal he was inform•
ed that his request for supply of the canal water could not be granted.
The supply was stopped. After giving them statutory notice under s. 80
of the Code of Civil Procedure, the appellant filed a suit against the State
for a declaration of his right to water from the canal and for consequential reliefs. The State contested the suit contending, inter alia, that
there was no concluded agreement between the Government and K, that
even so, the agreement was void inasmuch as it ttid not comply with
the provisions of s. 175(3) of the Government of India Act. 1935 and
in any view the appellant could not les:ally get the
benefit of the
agreement under s. 30 of the Bombay Irrigation Act. The Civil Judge
held that there was a concluded agreement between the Government
and K. but the transfer by K of the said right in favour of the appellant was in violation of the provisions of the Bombay Tenancy and
Agricultural Lands Act and dismissed the suit. On appeal, the High
Court held that there was neither a conclu\led agreement between K
and the Government nor did it comply with the requirements of law,
and the appeal was dismissed. On appeal by special leave:
Held: (i) The documents in the
instant case record a concluded
agreement between the Superintendent Engineer, acting on the order of
..
..
6 S.C.R.
SUPREME COURT REPORTS
the Minister of Public Works Department, on the one band and K on
the oiber agreeing lo supply water so long as K bad cane cultivation
in the conccntrate'd area.
196~
Karamshi Jetlia·
bhai
(ii) The
provisions
of Bombay Irrigation Act establishes that St 1 of vBomba
every person desiring to have supply of water from a canal shall apply
a •
Y
in the prescribed manner to the Canal Officer and that person to whom
water is supplied cannot transfer bis ·right to another without the pennission of the Canal Officer. But if the land in respect whereof the waler
is supplied is transferred, the agreement for the supply of water also
1ball be presumed to have .. been transferred alona with it •
(iii) The comiuct on the part of the Government as well as that on
the part of K and the appellant also establishes that the agreement was
not under the Bombay Irrigation Act, but between the Government
and K.
..
• (iv J The asreement is void. as it bas not complied with the provisions
of s. 17S (3) of the Government of India Act. The contract was not
either entere\I into by the person legally authorised by the Government
to do so or expressed to be made in the name of Governor.
Seth Bikhraj laipuria v: Union of lndia, [1962] 2 S.C.R. 860 and
New Marine Coal Co. v. Union of India, [1964] 2 S.C.R. 8S9, referred to.
Union of India v. Rallia Ram, A.l.R. 1963 S.C. !68S, referred 10.
Semble: While it is the duty of a private paity to a litigation to
place all the relevant matters before the court, a higher responsibility
rests upon the Government
not to withhold such document from the
Court.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
552 of 1962.
Appeal by special leave\ from the judgment and decree
dated August 22, 1960 of the former Bombay High Coun
in appeal No. 432 of 1954 from Original Decree.
M. K. Nambiar, I. B. Dadachanji, 0. C. MaJhur and
Ravinder Narain, for the appellant.
D. R. Prem, B. R. G. K. Achar and R. H. Dhebar, for
the respondent.
March 3, 1964. The Judgment of the Court was
delivered by
SUBBA RAo, J.-. This appeal by special leave is directed Subba Rao I.
against the judgment and decree of the High Court of
Bombay confirming those of the Civil Judge, Senior Division,
986
SUPREME COURT REPORTS
[1g64)
1964
Ahmednagar, in Special Civil Suit No. 6 of 1953 illed by
Karamshi Jetlia- the appellant against the State of Bombay for a deciaration
bhni
of his right to water from a particular source, and for
State or Bombay consequential reliefs.
Subba Rao J.
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 Tukaram
Karale, hereinafter called Karale.
In the year 1935 the
said Karale had a farm for raising sugarcane consisting of
35 acres owned by him and about 65 acres of land taken
on lease by him in Ahmednagar District. He obtained
sanction to irrigate his lands on the outiet No. 17 of the
Godavari Right Bank Canal. In or about the same year
the Government of Bombay proposed to rese:ve certain area
along the said Distributary Canal as "factory area". After
some correspondence between the said Karale and the
Government of Bombay, it was the appellant's case, the
Superintending Engineer agreed on July 14, 1939, to exclude
Karale's lands from the factory area and also to give him
water penpetually on condition that he concentrated all his
holdings on the tail outlet of Distributary No. 17 and to
take the supply of water on volumetric basis. Pursuant to
that arrangement, Karale, by purchase or otherwise, concentrated his holdings and shifted his operations to that
area and he was supplied water on the agreed basis. In or
about April 1948, the appellant and Karale entered into a
partnership for explc;iiting the said area whereunder the
appellant had three-fourths share and the said Karale had
one-fourth share. Later on disputes arose between the
appellant and Karale in respect of the partnership which
culminated in a consent decree dated Februarv 7, 1951,
whereunder the appellant became the full o~er of the
.partnership business with all its assets and liabilities, including the lands and the compact block and the right to use
the canal water. When the appellant applied for the recognition of the transfer, the Canal Officer refused to do so.
On appeal, he was informed that his request for supply of
canal water could not be granted. From April 1952 the
supply was stopped. After giving the statutory notice under
-
"
>
6 S.C.R.
SUPREME COURT REPORTS
987
s. 80 of the Code of Civil Procedure, the appellant filed
1964
Special Civil Suit No. 6 of 1953 in the Court of the Civil K•ramsh1 1'tha·
Judge, Senior Division, Ahmednagar, against the State of
bha•
Bombay for a declaration that the plaintiff was entitled to state of" Bombay
the supply and use of water from the tail outlet of DistriSubba Rao I.
butary No. 17 of the Canal to irrigate 100 acres of basic
cane land in the concentrated area described in Schedule II
at the rates prescribed by the Government under the
Irrigation Act on a volumetric basis, for specific performance
of the aforesaid agreement between Karale and the Government, for recovery of damages, and for other incidental
reliefs.
The State of Bombay filed a written-statement
contending, inter alia, that there was no concluded agreement between the Government and Karale embodying the
alleged terms stated in the plaint, that even if there was
such an agreement, it was void inasmuch as it did not
comply with the provisions of s. 17 5 ( 3) of the Government
of India Act, 1935, and that, in any view, the appellant
could not legally get the benefit of the agreement under s. 30
of the Bombay lrrization Act, 1879. On the pleadings as
many as seven issues were framed reflecting the contentions
of the parties. The learned Civil Judge held that there was
a concluded agreement between the Government and Karale
on the terms alleged by the appellant, but the transfer by
Karaie of the said right in favour of 'the appellant was in
violation of the provisions of the Bombay Tenancy and
Agricultural Lands Act, 1948, and, therefore, there was no
legal transfer of Kara!e's right of water in favour of the
appellant. In that view, he dismissed the suit. On appeal,
the High Court held that there was neither a concluded
agreement between Karale and the Government nor did it
comply with the requirements of law. In the result the
appeal was dismissed. Hence the present appeal.
The arguments of Mr. M. K. Nambiar, learned counsel
for the appellant, may be summarized under the following
heads : ( 1 ) There was a concluded agreement between
Karale and the statutory authority, the Canal Officer, whereunder the said Karale was entitled 'to get water to his
1'.0mpact block permanently from the tail outlet of IJistributary No. t 7 of the Godavari Right Bank Canal so long
SUPREME COURT REPORTS
[1g64]
1964
as he was willing to pay the rates for such supply on voluICara,,..hi Jetha- metric basis. (2) As under the compromise decree between
bhai
Karale and the appellant the ~aid bloclc of land was transS1a1• ol" Bombay ferred to the appellant, the right under the agreement for
Subba Rao 1.
the supply of canal water was also transferred to him under
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, any functional power assigned to
the Government or any other authority under the said statute
is exercisable only under that statute and in virtue of the
statutory authority and not in the. exercise of the executive
authority of the Province 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 entered
into under the Act by a statutory authority in pursuance of
a statutory power with the statutory consequences and,
therefore, such an agreement is outside the 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 not mean a formal contract, but only a sanction,
permission or consent given by the Canal Officer pursuant
to the authority given to him under the Act, and, therefore,
such sanction, permission or consenl is not a contract within
the meaning of s. 175(3) of the Government of India Act,
1935.
This appeal raises a question ct far-reaching importance
as regards the scope of the executive authority exercised by
the Governor under the Government of India Aci, 1935;
but, we are relieved of the duty to express our opinion on
that question in this appeal in view of our finding that the
agreement in question was arrived at outside the provisions
of the Act and, therefore, it squarc.ly falls within the scope
of s. 175(3) of the Government of India Act, 1935.
..
We shall at the outset address ourselves to the said
<e
agreement, namely, (i) who are the parties to the said
agreement; and (ii) what are the terms thereof?
•
6 S.C.R.
SUPREME COURT REPORTS
When the suit was pending decision of thl! Civil Court,
1964
the appellant filed an application therein for directing the Karamshi JethaGovemment to produce, among others, the applications
bhai
made to the Government from time to time by Karale in state of" Bombay
respect of supply of water to his farm in the y~ar 1935 and
Subba Rao J.
subsequent thereto and the office copies of the repli~s sent
to the said applications, the Government documents and
papers, water-bills and the records in respect of the supply
•
of water to the land belonging to Karale from the year I 935,
and the correspondence that passed between Karale and
the Government between I 935 and I 939 in respect of
consolidation of ·his lands.
Obviously these papers were
required by the appellant for establishing the case that there
was a concluded agreement between Karale and the Government or the Canal-officer. But, unfortunately, the said
documents were not produced.
It is not clear from the
record why and under what circumstance~ th~ Government
withheld the documents from the court, but in appeal the
High Court in its judgment remarked: "In the trial Court
no attempt was made to have this endorsement produced
in Court which · could have been done if the plaintiff's
Counsel had so desired by a proper application to the
Court". But the High Court felt that it was absolutely
necessary in the interests of justice to call upon the learned
"
Government Pleader to produce the fiJe with reference to
that particular endorsement, namely, Endorsement No.
3033 /36-I dated 28th April I 939, and directed him to do
so. It disposed of the appeal after receiving the said relevant
document.
Though the High Court thre"v the blame for
this lapse on the appellant, we do not think there was any
justification for it.
Apart from the fact that the appellant
asked for the production of all the relevanc documents, the
Government, being the defendant in this case, should have
produced the documents relevant to the question
raised.
While it is the duty of a private party to a litigation to
place all the relevant matters before the Court. a higher
responsibility rests upon the Government not to withhold
such documents from the court.
Be !hat at it may, the
documen\s were finally produced before the court, and the
High Court considered the same in arriving at its conclusion.
Though Mr. Nambiar suggested that the said documents
SUPREME COURT REPORTS
[1964]
1964
related to some other party,. as we will indicate in the course
Karam•hi 1e1110• of the judgment, the said file dealt also with the agreement
bhai
alleged to have been entered into between Karale and the
State or Bombay Government.
.
. . '"?·"
Subba Rao J.
Exhibits Nos. D-67 and D-68 are the documents on
/
which strong reliance is placed on behalf of the appellant.
Exhibit D-67 reads thus :
Below Government endorsement No. 3033 /36-1 dated
the 28th April 1939 :
Returned with compliments.
No. 4223 of 1939
Poona, 14th July, 1939.
2. The applicant has already been allowed to continue his present cane irrigation of 93 acres on
outlets 2 and Tail of Distributary 17 of the
Godavari Right Bank Canal for one year from
15-2-1939 pending consideration of his case in
detail, in relation to the demand of the Sugar
Company formed by Messrs. Jagtap & Khilari
on this canal and lately named the "Changdeo
Sugar Factory".
3. In view however of the orders issued verbally by
the Hon'ble Minister, Public Works Department on 12-7 -1939 the applicant is being
allowed to concentrate all his cane irrigation
to the extent of 100 acres on the tail outlet of
Dy 17 of the Godavari Right Bank Canal by
15-2-1940 and to continue it permanently there
if he so wish¥' provided he agrees to take water
by measurement on 'volumetric basis of 112"
at the ou9et head and pay the water rates that
may heFtafter be sanctioned by Governplent in
this r~pect. The applicant has since signified
his .»lillingness to these conditions. He will be
charged, till then on the area basis as is done
at present.
4. The area thus allowed to the applicant will be
excluded from the Sugar Factory area while
..
..
6 S.C.R
D.A.
SUPREME COURT REPORTS
991
fixing the boundaries of the allotted factory area
of the "Changdco Sugar Factory" on this canal.
1964
Karam.i;hi Jcthabhai
v.
Marathi petition.
(Sd.) W. H. E. GARROD,
State '!....!!ombay
Superintending Engineer, D.l.C.
Copy, with compliments, to the Executive Engineer,
Nasik Irrigation Division, for information ·and guidance with
reference to the correspondence ending with this office
11
No. 3686 dated 22-6-1939.
Exhibit D-68 is a Jette•· written by the Superintendmg
Engineer to Karale. It reads :
No. 4224 of 1939
Poona, 14th July 1939.
" To
Shankar Tukaram Karale, Esquire,
at Belapur.
Dear Sir,
Continuation of cane irrigation on Distributary
No. 17 of the Godavari Right Bank Canal.
Ir continuation of this office No. 3686 dated 23rd June
1939, I have to inform you that under orders of the
.. Honourable Minister, Public Works Department, you will
be aJlQwed to irrigate came to the extent of I 00 acres on the
tail outlet of Distributory No. 17 of the · Godavari Right
Bank Canal permanently, so long as you may wish to do
so, on condition . that you agree to take canal water by
measurement on volumetric basis of 112" depth at the outlet
head at the rate which may be sanctioned by Government
'
hereafter.
•· .,
(2) This will apply to new cane plantation from
15-2-H•40 onwards. Till then, you may continue your cane
irrigatirn on outlets 2 and tail as at present.
Yours faithfully,
(Sd.) W. H. E. Garrod,
Superintending Engineer,
Deccan Irrigation Circle.
Subba Rao I.
992
SUPREME COURT REPORTS
1964
Copy, with compliments, to the Executive Engineer,
Karamshi Jetlla- Nasik Irrigation Division, for information.
blrai
v.
A fair reading of these two documents leaves no room for
Stat< ~ombay doubt that a firm agreement was entered into between the
Subba Rao J.
Government and Karale in respect of the supply of water
to his land to the extent of 100 acres on the tail outlet of
Distributary No. 17 of the Godavari Right Bank Canal.
These two letters show that there was previous correspondence between the Engineering Department and Karale and
that the Minister of Public Works Department intervened
and settled the terms of the agreement, and that the terms
were communicated to Karale, who accepted the same. The
terms of the agreement were, ( i) Kar ale was allowed to
concentrate all his cane irrigation to the extent of 100 acres
on the tail outlet cif 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 to take
water by measurement on volumetric basis of 112" at the
outlet head and to pay water rates that might thereafter be
sanctioned by the Government in that respect; (iii) the
said area will be excluded from the sugar factory area while
fixing the boundaries of the allotted sugar factory area of
Chang:deo Sugar Factory; and (iv) the terms will apply to
new cane plantation from February 15, 1940 onwards. It
is said that the word "permanently" refers to cultivation.
but not to supply of water. This interpretation makes the
entire contract meaningless. Sugar cultivation can be done
only with the permission of the department, for sugarcane
crop cannot be raised without supply of . water· from the
canal.
When the Superintending Engineer allowed Karale
to concentrate all his cane . irrigation in the said area
permanently on condition he paid the prescribed rates, it
was necessarily implied in the said agreement that he would
supplv water permanently, if the said rates were paid.
Cultivation and supply of water are so inextricably connected that one cannot be seoarated from the other. The
permission to have cane irrigation permanently on the basis
of a particular rate implies that the supply for irrigation is
co-terminous with irrigation. In this view we must hold that
Bxs. D-67 and D-68. read together. record a concluded
...
/(
'
6 S.C.R.
SUPREME COURT REPORTS
993
agreement between the Superintending Engineer, acting on
1961
the orders of the Minister of Public Works Department, on Karam;;;;- Jdhathe one hand and Kara le on the other, agreeing to supply
. bhai
water so Jong as Karale had cane cultivation in the con- State
0f' Bombay
centrated area. The other documents, read along with the
Subba Rao I.
documents filed for the first time, in the High Court, also
do not detract from this conclusion. Exhibit D-78, which
is not dated, was the application filed by Karale to the Chief
Minister, P.W.D. and Irrigation Department, Bombay.
Therein Karale represented to the Chief Engineer that
Distributary No. 17 was permanently closed prior to 1935,
that he was responsible for starting the said Distributary by
commencing plantation. that the "Prime Minister's" consent
gave him an assurance that while declaring the factory area.
the area of the previous gardeners would be excluded 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 prayed that while declaring the factory
area. his land should be excluded therefrom. This application was considered by the concerned office under G.L.
No. 3033/36 dated April 27, 1939. In the note put up by
the office the contents of the said application are summarized. Thereafter the following note is found :
"With reference to the H.M.R.D.'s note dated
3-4-1939 it may be observed that Government
has already accepted the principle that no
ordinary irrigators should be allowed to operate
in the sugar factory area.
Under the general
orders issued on the sub.iect owner irrigators are
to be allowed to continue irrigation, on yearly
basis.
It is for consideration whether this fact
may be brought to the notice of the H.M.R.n.
If it is decided to do so the papers may be
submitted to the H.M.. P.W.D.
and the
H.M.R.D. after the drafts put up are issued."
'The Revenue Minister accepted the endorsement.
This is
only an office note and the suggestion that the irrigat<m
should be allowed to continue on the yearly basis was onlv
to prevent further applications after the factory area was
declared.
This endorsement had nothing to do with the
134--159 S.C.-63
994
SUPREME COURT REPORTS
1964
exclusion of any particular area from the sugar factory area.
Knramshi Jethn· The endorsement "should see" below the endorsement made
Miai
by the Revenue Minister perhaps meant that the papers
v
State of ·Bombay should be submitted to the Minister concerned.
Exhibit
Subba Rao J.
D-79 is a letter written by the Deputy Secretary to the
Government of Bombay to Changdeo Sugar Mills.
This
letter also refers to the office endorsement No. 3033 /36-1.
Though we arc not directly concerned with this letter, it
may be mentioned that the application of Karale is connected with the proposal to declare certain area as factory area
and to give water to Changdeo Sugar Factory in respect of
the lands in that area, for his application was to exclude his
area from the factory area. Both the matters obviously were
dealt together.
Exhibit D· 79A is again part of the file
relevant to the factory area. But a reference is made again
to the office No. 3033 '36- ! and in the same file Karale's
letter is also no1.iced.
Exhibit D-81 is an endorsement at
page ,133 of the same file. which also deals with the subject
"sugar factories''.
It contains a copy of the letter written
to the Superintending Engineer requesting him to submit
at a very car:y date a draft agreement for the supply of
water to the company's area on 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
endorsement reads thus :
Endorsement at 191.
Discussed with the Secy.
3033/36
1114
In addition to his written requests, Mr. Karate had also
interviewed the late H.M.R.D. During the discussions, H.M.
had made it clear that Mr. Karnlc can only be allowed to
continue if he WJs willing to consolidate his holdings in an
independent block so that the Co.'s cultivation be carried on
undisturbed.
This is net rccn;·ckd on this file as H.M. did not pass any
~
orders in Bombay or at the Secretariat but instructed
..
6 S.C.R.
SUPREME COlJB.T REPORTS
995
(Presumably after discussion with Mr. Sule) the S.E.D.l.C.
in the matter.
1964
KaramJhi Jethabhai
Please see P. 107 ante. That Mr. Karale's cane has to
v.
be shifted to one block is clear from the wordings of the Stare of Bombav
S.E.S. letter.
"The applicant is allowed to concentrate ail
Subba Rao I.
his cane. . ..... on the tail outlet of D.17". This is the onlv
record of the orders passed.
·
Moreover Mr. Karale is to have his supply on a volumetric basis as soon as that can be arranged for. This would
necessitate the concentration of his cane areas."
This endorsement notices the contents of Ex. D-67 and,
therefore, it must have been made only after April 28, 1939.
The said documents do not carry the matter further. They
only show what we have already noticed, namely, the Government wanted to create a factory area and that Karale filed
an application to have his area excluded therefrom.
The
notings of the department are not in any way inconsistent
either with Ex. D-67 or with Ex. D-68. Exhibits D-67 and
D-68 refer to Office No. 3686 dated June 23, 1939, and that
letter must have been iri some other file and that file was
not produced and, if produced, it might have thrown ~ome
more light.
In the circumstances we must proceed on the
basis that Exhibits D-67 and D-68 embodied the terms of the
agreement entered into 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 said
documents record the completed agreement between the
Government and Karale in respect of supply of water to his
land.
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 of India Act, 1935. The
premises on which Mr. Nambiar built his argument is that
the said agreement was entered into between the parties
under the provisions of the Act. If it was not made under
the provisions of the Act, but outside the Act, the foundation
for this argument would disappear.
We would. therefore.
proceed to consider now whether the said agreement was
under the provision of the Act.
SUPREME COURT REPORTS
!!!!
The relevant provisions of the Act may now be read.
Karamrhi Jetha· Section 3 ( 6) defines "C.1nal-Officer" to mean any officer
b~
' lawfully appointed or invested with powers under section 4.
.._
Stat1 of Bombay Under s. 4, such officer can exercise powers and discharge
Subba~ 1
duties that may be assigned to him by the State Government.
'
It is said that the Superintending Engineer was one of the
officers so appointed by the Government and that the powers
under ss. 27 to 30 of the Act were assigned to him. Under
s. 27, "Every person desiring to have a supply of water from
a canal shall submit a written application to that effect to
"'
a Canal-Officer duly empowered to receive such applications,
in such terms as shall from time to time be prescribed bv
the State Government in this behalf". Under s. 29, "When
canal-water is supplied for the irrigation of one or more crops
only the permission to use such water shall be held to continue only until such crop or crops shall come to maturity,
and to apply only to such crop or crops".
Under s. 30,
~
"Every agreement for the supply of canal-water to any land,
building or other immovable property shall be transferable
therewith. and shall be presumed to have been so transferred
whenever a transfer of such land, building or the other
immovable property takes place."
But under the second
limb of the section, "except in the case of any such agreement as aforesaid, no person entitled to use the water of any
canal, shall sell or sub-let, or otherwise transfer, this right
to such use without the permission of a Canal-Officer duly "
empowered to grant such permission". A combined reading
of these provisions establishes that every person desiring to
have supply of water from a canal shall apply in the
prescribed manner to the Canal-Officer and that the person
to who~ water is supp!ie? cannot transfer his right t.o
another without the perrmss10n of the Canal-Officer. But 1f
.-,
the land in respect whereof the water is supplied is trans·
ferred, the agreement for the si,ipply of water also shall be
presumed to have been transferred along with it. The
expression "agreement" in s. 30 of the Act, it is contended.
does not connote a contract as understood in la;,, but only
a convenient mode of expression to indicate the sanction
or permission given by the Canal-Officer. This meaning of
1'
the expression "agreement" is sought to be supported by a
reference to the Bombay
Canal
Rules, 1934. made in
I
•
6 S.C.R.
SUPREME COURT REPORTS
exercise of the powers conferred on the State Government
1964
under s. 70(e) of the Act. Part II of the Rules deals with Karamshi fetha·
swpply of water. lt provides for the filing of applications,
blwi
the manner of their disposal and the persons entitled to State
0f' Bombay
dispose of the same, and also the mode oi supply of water
-
f
l ·
·
f d'ff
'fh
f
'b d
Subba Rao J.
or cu uvauon o
1 erent crops.
e orms prescn e
columns under different heads for giving the necessary
particulars.
The forms contain the instructions as well as
conditions on which permission will be granted.
Rule 7
says that an application for supply of water for the irrigation
of land for any period may be sanctioned, indicating thereby
that there is no maximum period fixed for which application
for supply of water can be made. Assuming without deciding 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 Executive Engineer, who, subject to the
Rules, can give the sanction.
Rule 36 provides for an
appeal from the order of the Executive Engineer to the
Superintending Engineer, and from that of the Executive
Engineer's order under r. 18 or r. 19 to the Collector. But
there is no provision either in the Act or in the Rules made
thereunder enabling any party to make an application to
the Chief Engineer to exclude his land from factory area,
and to give him supply of water for irrigating the said land
permanently, or a power to the Government to enter into
an agreement or make an order in respect of such an
aipplication. Such an order or agreement is entirely outside
the scope of the Act or the Rules made thereunder. We are
not called upon in this case to decide whether the Govern·
ment has any such power outside the Act; but, we shali
assume for the purpose of this case that it has such power
and to proceed to consider the legal arguments on that basis.
The documentary evidence adduced in this case, which
we have already considered, discloses that the application
was made to the Chief Engineer; that the Government,
through the relevant ministry, considered the application
and that on the instructions given by the concerned Minister,
•
the Superintending Engineer wrote the letter Ex. D-68 to
Karale.
It was, therefore, in effect and substance, an
agreement entered into between the Government and Karale.
1964
KaramJhi lethabhai
v,
~i11te uj Bombay
Subba Rao /.
998
SUPREME COURT REPORTS
Such an agreement fell outside the provisions of the Act.
The parties to the agreement also understood that it was an
agreement made between the Government and Karale. The
Government in or about February 1942 sent a draft agreement to Karale for execution regarding the supply of canal
water to his farm, but the said Karale did not execute the
agreement.
The parties did not agree in regard to some
of the conditions found in the draft, but Karale did not
contest the position of the Government that a formal agreement in compliance with the provisions of law was necessary.
Again during the continuance of the partnership
between Karale and the appellant, in or about 1950, the
Government of Bombay sent another draft agreement to the
said Karale for execution. Though Karale signed the
agreement, he insisted upon a proviso that the agreement
should be without prejudice to the permission already granted to him.
The Bombay Government did not execute the
said agreement.
So too, Karale and the appellant were
making yearly applications under the Act and getting supply
of water lo their plantation. That procedure was presumably followed because, though there was an agreement
between Karale and the Government, for one reason or
other, 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 of Karale and the appellant
also estaolishes that the agreement was not under the Act,
but between the Government of Bombay and Karale. If so,
it follows that the contract entered into between the Government and Karate was a contract made in the exercise of
the executive authority of the Province within the meaning
of 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 the executive
authority of a Province shall be expressed to be
made ...... by the Governor of the Province
...... and all such contracts and all assurances
of property made in the exercise of that authority shall be executed on jiehalf of the ..... .
Governor by such persons and in such manner
as he may direct or authorise."
J
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•
•
6 S.C.R.
SUPREME COURT REPORTS
999
This section laid down two conditions for the validity of
1964
such a contract, namely, (i) it should be expressed to be
Karamshi J<tha·
made by the Governor of the Province, and (ii) it should
bhai
be executed on behalf of the Governor by such persons and State
0 {" Bombay
in such manner as he might direct or authorize. We have
-
nothing on the record to disclose whether the SuperintendSubba Rao 1·
ing Engineer, though he acted under oral instructions of the
Minister, was authorized by the Governor or under 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 into between the Government and
Karale, can it be said that the said contract was expressed
to be made in the name of the Governor? Ex facie it cannot
be said so.
But it is contended that on a liberal construction, which we should adopt in a case where the Government is trying to go back on its solemn' promise, such a
formality can easily be read into the said documents. Before
we construe the said two documents in order to ascertain
whether such a formality has been complied with or not, it
would be convenient to notice some of the decisions of this
Court.
The question of construction of s. 17 5 ( 3) of the
Government of India Act, 1935, directly arose for decision
in Seth Bikhraj Jaipuria v. Union of India('). There, the
Divisional Superintendent, East Indian Railway, placed
certain orders with the appellant for the supply of foodgrains
for the employees of the said Railway.
The orders were
not expressed to be made in the name of the GovernorGeneral and was not executed on behalf of the GovcrnorGeneral as required by s. 175(3) of the Government of
India Act, 1935.
They were signed by the Divisional
Superintendent either in his own hand or in the hand of
his Personal Assistant. This Court held that the contracts,
not having been expressed to be entered into by the
Governor-General and not having been executed on his
behalf, were void.
This Court held that the provisions of
s. 175(3) of the Government of India Act, 1935, were
mandatory and. therefore, the contracts were void.
This
decision was followed by this Court in New Marine Coal
Co. v. The Union of India('). Reliance is placed by the
-~~=~- ·---~- -
(1) [1962] 2 S.C.R. 880.
(') [1964) 2 S.C.R. 859.
1000
SUPREME COURT REPORTS
1964
learned counsel for the appellant on the decision of this
Karamshi J<thaCourt in Union of India v. Rallia Ram(') in support ot his
bhal
contention that though ex facie Exs. D-67 and D-68 do not
v.
Staie of Bombay show that the contract was expressed to be made in the
Subba Rao J.
name of the Governor, the said fact could be inferred from
the recitals. There, the goods offered to be sold belonged
to the Government of India.
A tender notice was issued
by the Government of India, Department of Food (Division
III), in the name of the Chief Director of Purchases. The
Chief Director of Purchases agreed to sell the goods on
certain conditions to the respondent and incorporated them
in the acceptance note, which was also headed "Government
of India, Department of Food (Division III), New Delhi".
The general conditions of contract, which accompanied the
letter of acceptance, defined Government as meaning the
Governor-General for India in Council. On the said facts
this Court held that the correspondence between the parties
ultimately resulting in the acceptance note amounted to a
contract expressed to be made by the Government and,
therefore, by the Governor-General, "because it was the
Governor-General who invited tenders through the Chief
Director of Purchases and it was the Governor-General who,
through the Chief Director of Purchases, accepted the tender
of the respondent subject to the conditions prescribed
therein". Though in the acceptance note it was not expressly
stated that the contract was executed on behalf of the
Governor-General, on a fair reading of the contents of the
letter in the light of the obligations undertaken thereunder,
it was held that the contract was executed on behalf of the
Governor-General. This decision does not depart from the
principle accepted in Seth Bikhraj Jaipuria's case('). On
a fair reading of the correspondence this Court construed
that the contract was entered into on behalf of the GovernorGeneral and expressed to be made in his name. Can it be
said that in the present case Exs. D-67 and D-68 disclose
that the Superintending Engineer was authorized to enter
into a contract of the nature mentioned therein on behalf
of the Provincial Government and that the contract was
ex !ITessed to be made in the name of the Governor?
(1) [1964] 3 $.C.R. 164.
(2) (1962] 2 S.C.R. 880.
I
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"
6 S.C;R.
SUPREME COURT REPORTS
1001
Nothing has been placed before us to establish that the
1961
Superintending Engineer was legally authorized to enter into Karamshi l•thasuch a contract on behalf of the Government; nor do the
bhai
d
~
ocuments ex facie show that the agreement was expressed Stat< of Bombay
to be made in the name of the Provincial Government. The
Subba Rao J.
letters mentioned the name of the Minister of the Public
Works Department and also the Government, in the context
of the rates that might be fixed thereafter, but the said
documents did not purport to emanate from the Governor.
At best they were issued under the directions of the
Ministe_r.
We find it difficult to stretch the 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 that either the contract was entered
into by the person legally authorized by the Government
to do so or expressed to be made in the name of the
Governor. The agreement is void, as it has not complied
with the provisions of s. 175(3) of the Government of India
Act, 1935.
In this view, it is not necessary to express our opinion
'111 other interesting questions raised in this case.
In the result, the appeal fails and is dismissed, but in
the circumstances, without costs.
Appeal dismissed.
I>HIRENDRA NA TH GORAi AND SUBAL CHANDRA
SHAW AND OTHERS
v.
SUDHIR CHANDRA GHOSH AND OTHERS
(K. SUBBA RAo, K. C.