03 March 1964
Supreme Court


Case number: Appeal (civil) 552 of 1962






DATE OF JUDGMENT: 03/03/1964


CITATION:  1964 AIR 1714            1964 SCR  (6) 984  CITATOR INFO :  RF         1980 SC1285  (10)

ACT: Agreement-Concluded by Superintending Engineer-If hit by  s. 175(3)  of  Government  of India  Act-Supply  of  Irrigation water-Transfer  of right-If permission needed-Government  of India  Act,  1935  (26 Geo. v. Ch. 2),  s.  175(3).   Bombay Irrigation Act, 1879 (Bom. of 1879), ss. 3(6), 4, 27-30.

HEADNOTE: 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  Engineer  agreed  to exclude  K’s  land from the factory area and  also  to  give water perpetually on the condition that he concentrated  all his holding on the tail outlet of the canal and to take  the supply  of  water  on volumetric basis.   Pursuant  to  that arrangement,  K  concentrated his holdings 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 do so.  On  appeal be  was  informed 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 ’did not comply with  the provisions of s. 175(3) of the Government of India Act, 1935 and  in  any view the appellant could not  legally  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  concluded 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  985 the Minister of Public Works Department, on the one hand and K  on  the other agreeing to supply water so long as  K  had cane cultivation in the concentrated area. (ii) The  provisions  of Bombay Irrigation  Act  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 person to whom water is  supplied  cannot transfer his right to another without the permission of  the Canal Officer.  But if the land in respect whereof the water is supplied is transferred, the agreement for the supply  of water also shall be presumed to have been transferred  along with it.  (iii) The conduct 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) The agreement is void, as it has not complied with  the provisions of s. 175(3) of the Government of India Act.  The contract  was not either entered into by the person  legally authorised  by  the Government to do so or expressed  to  be made in the name of Governor. Seth Bikhraj Jaipurja v. Union of India, [1962] 2 S.C.R. 860 and  New Marine Coal Co. v. Union of India, [1964] 2  S.C.R. 859, referred to. Union  of  India  v.  Rallia Ram,  A.I.R.  1963  S.C.  1685, referred to. Semble:   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 document from the Court.

JUDGMENT: 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 Court  in  appeal No. 432 of 1954 from Original Decree. M.   K.  Nambiar,  J.  B.   Dadachanji,  O.  C.  Mathur  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 against the judgment and decree of the High Court of  Bombay confirming those of the Civil Judge, Senior Division, 986 Ahmednagar,  Jr,, Special Civil Suit No. 6 of 1953 filed  by the appellant against the State of Bombay for a  declaration of  his  right to water from a particular  source,  and  for consequential reliefs. 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 outlet No. 17  of  the  Godavari Right Bank Canal.  In or about the same year the  Government of  Bombay proposed to reserve 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 perpetually 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 exporting 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  February 7, 1951,  whereunder  the  appellant became  the full owner 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  987 s.   80 of the Code of Civil Procedure, the appellant  filed Special  Civil Suit No. 6 of 1953 in the Court of the  Civil Judge,  Senior  Division, Ahmednagar, against the  State  of Bombay for a declaration that the plaintiff was entitled  to the supply and use of water from the tail outlet of  Distri- butary  No. 17 of the Canal to irrigate 100 acres  of  basic cane land in the concentrated area described in Schedule  11 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.  175(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 Irrigation 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  Karale  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 Karale’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  compact  block permanently  from the tail outlet of Distributary No. 17  of the Godavari Right Bank Canal so long 988 as he was willing to pay the rates for such supply on  volu- metric  basis.  (2) As under the compromise  decree  between Karale  and the appellant the said block of land was  trans- ferred  to the appellant, the right under the agreement  for 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 consent is not a contract within the meaning of s. 175(3) of the (Government of India Act, 1935. This  appeal raises a question a far-reaching importance  as regards  the scope of the executive authority  exercised  by the  Governor under the Government of India Act, 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 squarely  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 agreement,  namely,  (i)  who are the parties  to  the  said agreement; and (ii) what are the terms thereof?  989 When  the suit was pending decision of the Civil Court,  the appellant  filed  an application therein for  directing  the Government  to produce, among others, the applications  made to the Government from time to time by Karale in respect  of supply of water to his farm in the year 1935 and  subsequent thereto  and  the office copies of the replies 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  1935. and  the correspondence that passed between karale and’  the Government between 1935 and 1939 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  circumstances  the 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 plaintiffs 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 file with reference   to   that   particular   endorsement,    namely, Endorsement  No.  3033/36-1  dated  28th  April  1939,   and directed  him  to  do so. It disposed of  the  appeal  after receiving the said relevant document.  Though the High Court threw  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 relevant  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  that  at  it may, the documents  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 990 related  to  some other party, as we will  indicate  in  the course  of the judgment, the said file dealt also  with  the agreement  alleged to have been entered into between  Karale and the Government. 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:                       No. 4223 of 1939                   Poona, 14th July, 1939. Returned with compliments.               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 wishes provided he agrees to take  water               by measurement on volumetric basis of 112"  at               the  outlet head and pay the water rates  that               may  hereafter be sanctioned by Government  in               this   respect.   The  applicant   has   since               signified his willingness 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 991 fixing  the boundaries of the allotted factory area  of  the "Changdeo  Sugar  Factory"  on  this  canal.   D.A.  Marathi petition. (Sd.) W. H. E. GARROD, Superintending Engineer, D.I.C. Copy,  with  compliments, to the Executive  Engineer,  Nasik Irrigation  Division,  for  information  and  guidance  with reference to the correspondence ending with this office  No. 3686 dated 22-6-1939. Exhibit  D-68  is  a letter written  by  the  Superintending Engineer to Karale.  It reads : No. 4224 of 1939 Poona, 14th July 1939. TO Shankar Tukaram Karale, Esquire, at Belapur. Continuation  of cane irrigation on Distributary No.  17  of the Godavari Right Bank Canal. Dear Sir, In  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 allowed  to irrigate came to the extent of 100 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  15-2-1940 onwards.   Till then, you may continue your cane  irrigation on outlets 2 and tail as at present. Yours faithfully, (Sd.) W. H. E. Garrod, Superintending Engineer, Deccan Irrigation Circle. 992 Copy,  with  compliments, to the Executive  Engineer,  Nasik Irrigation Division, for information. A  fair  reading of these two documents leaves no  room  for doubt  that  a firm agreement was entered into  between  the 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) Karale was allowed  to  concentrate all  his cane irrigation to the extent of 100 acres  on  the tail  outlet  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  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 Changdeo 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 supply  water  permanently,  if the said  rates  were  paid. Cultivation and supply of water are so inextricably connect- ed  that  one  cannot  be separated  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 Exs.  D-67 and D-68, read together, record a concluded                             993 agreement between the Superintending Engineer, acting on the orders  of the Minister of Public Works Department,  on  the one  hand and Karale on the other, agreeing to supply  water so  long  as  Karale  had cane cultivation  in  the  con-  s centrated  area.  The other documents, read along  with  the 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  subject  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.D. 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 irrigators should be  allowed  to  continue on the yearly basis  was  only  to prevent  further  applications after the  factory  area  was declared.  This endorsement had nothing to do with the  134- 159 S.C.-63 994 exclusion  of  any particular area from  the  sugar  factory area.   The endorsement "should see" below  the  endorsement made by the Revenue Minister perhaps meant that the  papers, should be submitted to the Minister concerned.  Exhibit 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  are 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. 3033/36-1 and in the same  file  Karale’s letter  is also noticed.  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 early 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.                           3033/36                             1114 Discussed with the Secy. In  addition  to his written requests, Mr. Karale  had  also interviewed  the late H.M.R.D. During the discussions,  H.M. had  made  it clear that Mr. Karale can only be  allowed  to continue if he was willing to consolidate his holdings in an independent  block so that the Co.’s cultivation be  carried on undisturbed. This  is not recorded on this file as H.M. did not pass  any orders in Bombay or at the Secretariat but instructed                             995 (Presumably  after discussion with Mr. Sule) the  S.E.D.I.C. in the matter. Please  see P. 107 ante.  That Mr. Karale’s cane has  to  be shifted  to  one  block is clear from the  wordings  of  the S.E.S. letter.  "The applicant is allowed to concentrate all his cane........ on the tail outlet of D. 17".  This is  the only 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  Govern- ment  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 in some other file and that file  was not  produced  and, if produced, it might have  thrown  some 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 and. 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.



996 The relevant provisions of the Act may now be read.  Section 3(6)  defines "Canal-Officer" to mean any  officer  lawfully appointed or invested with powers under section 4. Under  s. 4,  such  officer can exercise powers and  discharge  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  by 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  per--,on to whom water is supplied cannot transfer  his right  to  another  without the  permission  of  the  Canal- Officer.   But if the land in respect whereof the  water  is supplied  is  transferred, the agreement for the  supply  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 law,  but only a convenient mode of expression  to  indicate the sanction or permission given by the Canal-Officer.  This meaning  of  the  expression "agreement"  is  sought  to  be supported  by a reference to the Bombay Canal  Rules,  1934, made in  997 exercise  of  the powers conferred on the  State  Government under s. 70(e) of the Act.  Part 11 of the Rules deals  with supply   of   water.   It  provides  for   the   filing   of applications, the manner of their disposal and. the  persons entitled to dispose of the same, and also the mode of supply of  water  for cultivation of different  crops.   The  forms prescribed  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  application.   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 Government has any such power outside the Act; but, we shall 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. 998 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  agree- ment 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  to 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 establishes 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  Karale  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 behalf  of               the  Governor  by  such persons  and  in  such               manner as he may direct or authorise. 999 This  section laid down two conditions for the  validity  of such  a contract, namely, (i) it should be expressed  to  be made by the Governor of the Province, and (ii) it should  be



executed  on behalf of the Governor by such persons  and  in such  manner  as  he might direct  or  authorize.   We  have nothing on the record to disclose whether the Superintending 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  construc- tion,  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. 175(3)  of  the Government  of India Act, 1935, directly arose for  decision in  Seth Bikhraj Jaipuria v. Union of India(1).  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 Governor  -General  and was not executed on  behalf  of  the Governor General 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(2).  Reliance is placed by the (1) [1962] 2 C.R. 880.         (2) [1964] 2 S.C.R. 859. 1000 learned  counsel for the appellant on the decision  of  this Court in Union of India v. Rallia Ram (1) in support of  his contention  that though ex facie Exs.  D-67 and D-68 do  not show that the contract was expressed to be made in the  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 111),  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(2).  On a fair reading of  the correspondence  this Court construed that the  contract  was entered into on behalf of the Governor-General 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 expressed to be made in the name of the Governor? (1) [1964] 3 S.C.R. 164.   (2) [1962] 2 S.C.R. 880.  1001 Nothing  has  been placed before us to  establish  that  the Superintending Engineer was legally authorized to enter into such  a  contract on behalf of the Government;  nor  do  the documents ex jacie show that the agreement was expressed  to be  made  in  the name of the  Provincial  Government.   The 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  Minister. 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  on other interesting questions raised in this case. In the result, the appeal fails and is dismissed, but in the circumstances, without costs.      Appeal dismissed.