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PETITIONER: STATE OF WEST BENGAL

       Vs.

RESPONDENT: M/S. B. K. MONDAL AND SONS

DATE OF JUDGMENT: 05/12/1961

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:  1962 AIR  779            1962 SCR  Supl. (1) 876  CITATOR INFO :  F          1964 SC 152  (6,11,12)  R          1966 SC 580  (9)  R          1967 SC 203  (8)  F          1968 SC1218  (6)  R          1971 SC2210  (3)  F          1973 SC1174  (6)  F          1977 SC2149  (8)  E          1980 SC1109  (3)  RF         1980 SC1285  (18)  RF         1980 SC1330  (8)

ACT:      State  Government-Enjoying  benefit  of  non- gratuitous  work-If  bound  to  pay  compensation- Absence   of   valid   contract,   if   exonerates liability-Indian Contract Act, 1872 (9 of 1872)-s. 70 Government  of India  Act, 1935 (25 & 26 Geo.5. Ch. 42), s. 175(3).

HEADNOTE:      By s. 70 of the Contract Act, "where a person lawfully does  anything  for  another  person,  or delivers anything  to him,  not intending to do so gratuitously; and  such other  person  enjoys  the benefit thereof,  the  latter  is  bound  to  make compensation to  the former  in respect  of, or to restore, the thing so done or delivered". Under s. 175(3)  of   the  Government   of  India  Act  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 shall be executed on behalf of the Governor by such persons and in such manner as he may director authorise.      The   respondent,    a   firm   of   building contractors  doing   construction  works  for  the Provincial  Government   did  certain   additional construction on  the request  of its officers. Its bills for  these latter works were not paid and it sued the  Government basing  its claim on contract

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and in  the alternative  on s.  70 of the Contract Act. The  defence of  the  Provincial  Government, inter alia,  was  that  there  was  no  valid  and binding contract and s. 70 had no application. The trial Judge 877 found that  although there  was no  valid contract under s.175(3)  of the  Government of  India  Act, 1935, the  claim was  justified under  s.70 of the Contract and decreed the suit. The Court of appeal affirmed  that   decree.  The  State  appealed  by special leave. ^      Held (Per curiam), that the courts below were right in  holding that  s.70 of  the Contract  Act applied to the case and the appeal must fail.      Per  Gajendragadkar,  Wanchoo  and  Ayyangar, JJ.-Whether a  mandatory provision in a statute is merely directory  or obligatory  should be decided on a  careful examination  of  the  scope  of  the statute  and   the  object   of   the   particular provision. In  enacting s.175(3) of the Government of  India   Act,  1935,   the  intention   of  the parliament  was  that  the  state  should  not  be burdened  with  liability  based  on  unauthorised contracts.  The   provision  made  was  in  public interest and so the word ’shall’ used therein must be held to make it obligatory and not directory.      Seth Bhikraj  Jaipuria  v.  Union  of  India, [1962] 2 S.C.R. 880, approved.      Chatturbhuj  Vithaldas  Jasani  v.  Moreshwar Prashram [1954] S.C.R. 817, explained.      In order that a person can invoke s.70 of the Contract Act  he must  be able to show (1) that he acted lawfully,(2)  that he  did not intend to act gratuitously and (3) that the other person enjoyed the benefit.      A claim for compensation under s.70 therefore is not  one based  on any  subsisting contract but proceeds on  the basis  that something was done or delivered to  another who  voluntarily accepted it even though he had always the option to refuse the same.      Recognition of the claim in the present case, could not  therefore, amount to a contravention of s.175(3) of  the Government  of India  Act, either directly or indirectly.      The word  ’lawfully’ in s. 70 of the Contract Act  means   that  after   something  is  done  or delivered  by   one  person   to  another  and  is voluntarily accepted  and enjoyed by the latter, a lawful relationship  arises between  the two which attracts  s.70  of  the  Contract  Act.  In  cases falling under the section, there cannot, therefore be any  scope for  claims for specific performance or for  damages for  breach of contract, the claim for compensation  under the  section being  on the footing that  there has  been no  contract and the conduct of  parties  has  created  a  relationship resembling that arising out of a contract. 878      There  is   nothing  in   s.  175(3)  of  the Government of India Act, tested in the light of s. 23 of the Contract Act, that forbids a claim under s. 70  of the  Contract Act,  There is no conflict

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between the two sections, each covering a distinct and separate  field and  s. 70 Contract Act should be regarded  rather as  supplementing s. 175(3) of the Government of India Act.      Chedi Lal  v. Bhagwan  Das, (1889)  I.L.R. 11 A11. 234, disapproved.      Held, further,  that in construing a specific statutory provision  such as s. 70 of the Contract Act it  would be  unreasonable to  seek assistance from English  decisions  on  statutory  provisions contained in English law.      Ramanandi Kuer  v. Kalawati Kuer, (1927) L.R. 55 I.A. 18, referred to.      The State  Government, as much as an ordinary citizen, must  be subject to s. 70 of the Contract Act and  it was wrong to suggest that its position was like  that of  a minor  and, therefore, it was outside the scope of s. 70 of the Act.      Suchand Ghosal  v.  Balaram  Mardana,  (1911) I.L.R. 38 Cal. 1, referred to.      Case law referred to.      Per Sarkar  and Das  Gupta, JJ.- The question in  the   instant  case   was  whether  the  three requisites of  s. 70  of the Contract Act had been satisfied.  There   was  no   dispute   that   the Government  had  taken  benefit  of  the  work  it urgently needed  the work  and put  it to  its use immediately. It was also clear that the respondent did not  intend to  do the work gratuitously. What the request made by the officers did was to inform the respondent that the Government needed the work immediately and  would pay  for it  when done, and works similar  the respondent,  who had previously done and been paid for, readily acted on it.      There can  also be no doubt that the work was done lawfully.  Even assuming that work done under a  contract   invalid  under   s.  175(3)  of  the Government of India Act, would be unlawful because of evasion  of it,  that section does not say that work done  without any  contract at all, as in the instant case,  would be  work unlawfully  done nor does it  make it  unlawful for  the Government  to take benefit  of work  done  for  it  without  any contract at all.      Section 175(3) of the Government of India Act applies  to   a  consensual   contract  which  the Government makes  and not  to something  which  is also called a contract but which the 879 law   brings   into   existence   by   a   fiction irrespective  of   the  consent  of  the  parties. Section 70  of the  Contract Act applies where its requisites exist,  if it  is necessary  to imply a contract  or   contemplate  a  quasi-contract  for applying the section that must be done and neither s. 175(3)  of the  Government of India Act nor any other impediment can stand in the way.      Held, further,  that a  resort to English Law is not  justified for  deciding a question arising on an  Indian statute  unless it  is such  that it cannot  be   reasonably  understood  without  such assistance.

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION :  Civil Appeal No. 286 of 1958.      Appeal by special leave from the judgment and decree dated  the January 4, 1957, of the Calcutta High Court  in Civil  Appeal From  Original Decree No. 155 of 1953.      B. Sen,  P. K. Chatterjee and P. K. Bose, for the appellant.      N.  C.  Chatterjee,  A.N.  Sinha  and  P.  K. Mukherjee, for the respondents.      1961.   December    5.   The    Judgment   of Gajendragadkar, Wanchoo  and Ayyrangar,  JJ.,  was delivered by  Gajendragadkar, J.  The Judgment  of Sarkar and Das Gupta, JJ. was delivered by Sarkar, J.      GAJENDRAGADKAR,J.-This  appeal   by   special leave arises out of a suit filed by the respondent B. K.  Mondal &  Sons against  the  appellant  the State of  West Bengal  on the Original Side of the Calcutta High Court claiming a sum of Rs. 19,325/- for works done by it for the appellant. This claim was made  out in two ways. It was alleged that the works in  question had been done by the respondent in terms  of a  contract entered  into between the parties and  as such  the appellant  was liable to pay the  amount due  for the  said works.  In  the alternative it was alleged that if the contract in question was  invalid then  the respondent’s claim fell under  s. 70  of the Indian Contract Act. The respondent had lawfully done such works not 880 intending to  act gratuitously  in that behalf and the appellant had enjoyed the benefit thereof.      The respondent’s case was that on February 8, 1944, it  offered  to  put  up  certain  temporary storage godowns  at Arambagh  in the  District  of Hooghly  for   the  use   of  the  Civil  Supplies Department of  the State  of Bengal  and that  the said offer  was accepted by the said department by a letter  dated February 12, 1944. Accordingly the respondent complete  the said construction and its bill for  Rs. 39,476/- was duly paid in July 1944. Meanwhile, on  April 7,  1944, the  respondent was requested by the Sub-Divisional Officer, Arambagh, to submit  its estimate  for the construction of a kutcha road,  guard room, office, kitchen and room for clerks at Arambagh for the Department of Civil Supplies.  The   respondent   alleged   that   the Additional  Deputy   Director  of  Civil  Supplies visited Arambagh on April 20, 1944, and instructed the respondent to proceed with the construction in accordance with  the estimates  submitted  by  it. Accordingly  the  respondent  completed  the  said constructions and  a  bill  for  Rs.  2,322/8  was submitted in that behalf to the Assistant Director of Civil  Supplies on  April 27,  1944. Thereafter the Sub-Divisional  Officer, Arambagh required the construction of  certain storage sheds at Khanakul and the Assistant Director of Civil Supplies wrote to the  respondent on April 18, 1944, asking it to proceed with  the construction of the said storage sheds.  This   work  also  was  completed  by  the respondent in  due course  and for the said work a bill  for  Rs.  17,003/-  was  submitted.  In  the

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present suit  the respondent  claimed that the two bills submitted  by it in which the respondent had claimed   Rs.    2,322/8/-   and    Rs.   17,003/- respectively had  remained unpaid and that was the basis of the present claim.      The  appellant   denied  all   the   material allegations made  by the respondent in its plaint. It 881 alleged that  the requests  in pursuance  of which the respondent  claims to  have made  the  several constructions were  invalid and  unauthorised  and did not  constitute a  valid contract  binding the appellant under  s. 175(3)  of the  Government  of India Act,  1935 (hereafter  called the  Act).  It pleaded that  there was  no  privity  of  contract between the  respondent and  itself and  it denied its liability  for the  entire claim.  The written statement filed  by the  appellant was  very vague and general  in terms  and no specific or detailed pleas had  been set  out by  the appellant  in its pleading.      However, G.K. Mitter, J., who tried the suit, framed five  material issues  on the pleadings and recorded his findings on them. He held that having regard to  the provisions  of s. 175(3) of the Act there was  no valid  and binding  contract between the  respondent   and  the   appellant   for   the construction of  huts  and  sheds  at  Khakul  and Arambagh.  This  finding  was  in  favour  of  the appellant. He  held that  the  respondent’s  claim against  the  appellant  was,  however,  justified under s.  70 of  the Indian  Contract Act,  and he came to the conclusion that the said claim was not barred by limitation. He also rejected the plea of the appellant  that the  liability of the Province of Bengal  had not  devolved  upon  the  appellant under the  provisions of  the Indian  Independence (Rights, Property  and  Liabilities)  Order  1947. Thus, on  these three  points the  findings of the trial judge were against the appellant. It appears that at  the trial  the respondent had also relied upon s.  65 of  the Indian Contract Act in support of its  claim. The  learned judge  held that s. 65 did not  apply to the facts of the case and so the finding  on  this  point  was  in  favour  of  the appellant. The  result was  that the  respondent’s claim was  upheld under  s. 70 of the Contract Act and a  decree for  the amount  claimed by  it  was accordingly passed in its favour. 882      The appellant  disputed the  correctness  and validity of  the  said  decree  by  preferring  an appeal to  the Calcutta  High Court  in its  civil appellate jurisdiction.  The said appeal was heard by S.R.  Das  Gupta  and  Bachawat,  JJ.  The  two learned Judges who heard the said appeal delivered separate   though    concurring   judgments    and substantially  confirmed   the  material   finding recorded by  the trial  court. In  the result  the appeal preferred  by the  appellant was dismissed. The appellant  then applied  for a  certificate to come to this Court but the High Court rejected its application. Thereupon  the appellant  moved  this Court for  a special  certificate and on obtaining

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it has come to this Court; and the principal point which has  been urged  before us  by  Mr.  Sen  on behalf of  the appellant  is that  s.  70  of  the Contract Act does not apply to the present case.      Before dealing wit this point it is necessary to refer  briefly to  the finding  recorded by the Courts  below  that  the  contract  on  which  the respondent relied  is invalid  under s.  175(3) of the Act.  Mr. Sen  argues  that  this  finding  is correct whereas  Mr. Chatterjee  faintly suggested that the  contract cannot  be said  to be invalid. Section 175(3)  provided,  inter  alia,  that  all contracts made  in the  exercise of  the executive authority of  a province  shall be expressed to be made by  the Governor  of a  Province and all such contracts made in 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. It  is common-ground that the contracts in question  were not executed by any persons duly authorised by the Governor in that behalf, and the question is whether the said contracts can be said to be  valid inspite  of the fact that they do not comply  with  the  mandatory  requirements  of  s. 175(3) of the Act. In our opinion, there can be no doubt that  failure to  comply with  the mandatory provisions of the said section 883 makes the  contracts invalid.  The question  as to whether mandatory provisions contained in statutes should  be   considered  merely  as  directory  or obligatory has  often been  considered in judicial decisions. In dealing with the question no general or inflexible  rule can be laid down. It is always a matter of trying to determine the real intention of the  Legislature in  using  the  imperative  or mandatory  words,   and  such   intention  can  be gathered by  a careful  examination of  the  whole scope of the statute and the object intended to be achieved by  the particular  provision  containing the mandatory  clause. If  it  is  held  that  the mandatory  clause   is  obligatory  it  inevitably follows that  contravention  of  the  said  clause implies the  nullification of  the contract. There can be no doubt that in enacting the provisions of s. 175(3)  the Parliament  intended that the state should not  be burdened  with liability  based  on unauthorised contracts and the plain object of the provision, therefore,  is to  save the  State from spurious claims  made  on  the  strength  of  such unauthorised contracts. Thus the provision is made in the  public interest  and so  there can  be  no difficulty in  holding that  the word "shall" used in making  the provision  is intended  to make the provision itself  obligatory  and  not  directory. This is  the view  taken by  this  Court  in  Seth Bhikraj Jaipuria  v. The  Union of India (1), and, with respect, we are in entire agreement with that view.      As in  the case  of Bhikraj Jaipuria(1) so in the present  case too Mr. Chatterjee has attempted to argue  that the conclusion about the obligatory character  of  the  provisions  of  s.  175(3)  is inconsistent with  the decision  of this  Court in Chatturbhuj   Vithaldas    Jasani   v.   Moreshwar

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Parashram (2)  In that  case a  contract  for  the supply of  goods had  been entered  into with  the Central Government by the 884 firm  Moolji   Scika  and  Company  of  which  the candidate Chatturbhuj  was a partner. The contract in question  had not  complied with  the mandatory provisions of  Art.  299(1)  of  the  Constitution (which corresponds  snbstantially to  s. 175(3) of the Act)  and the question which this Court had to consider was  whether in view of the fact that the contract   in   question   had   contravened   the provisions   of    Art.   299(1)   the   candidate Chatturbhuj could  be said  to be disqualified for being chosen  as a  member of Parliament by virtue of the  disqualification set out in s. 7(d) of the Representation of  the People  Act 43  of 1951. In dealing with this question Bose, J., who spoke for the  Court,   observed  that   "s.  7(d)   of  the Representation of  the People Act does not require that the  contracts at  which it strikes should be enforceable  against   the  Government;   all   it requires is  that the  contracts should be for the supply of  goods to  the Government; The contracts in question  are just  that and  so are hit by the section". It  would thus  be seen that in the case of Chatturbhuj(1)  this Court was dealing with the narrow  question   as  to   whether  the  impugned contract for  the supply  of goods  would cease to attract  the   provisions   of   s.7(d)   of   the Representation of  the People  Act on  the  ground that is did not comply with the provisions of Art. 299(1), and  this Court  held that notwithstanding the fact  that the  contract could not be enforced against the  Government it  was a  contract  which fell  within   the  mischief   of  s.   7(d).  Mr. Chatterjee, however,  contends that in considering the effect  of non-compliance of Art. 299(1) Bose, J., has also observed that "the Government may not be bound  by the  contract  but  that  is  a  very different thing  from saying that the contract was void and  of no effect and that it only meant that the principal  (Government) could  not be sued but there will  be nothing  to prevent ratification if it was  for the  benefit of  the Government."  Mr. Chatterjee points  out that this observation shows that the contract 885 with which  the Court  was dealing was not treated "as void  and of  no effect."  It would be noticed that  the  observation  on  which  Mr.  Chatterjee relies has  to be  read  in  the  context  of  the question posed  for the decision of this Court and its effect  must be  judged in  that way. All that this Court  meant by the said observation was that the contract  made in contravention of Art. 299(1) could be  ratified by the Government if it was for its benefit and as such it could not take the case of the  contractor outside the purview of s. 7(d). The contract  which is  void may not be capable of ratification, but,  since according  to the  Court the contract  in question could have been ratified it was  not void  in that technical sense. That is all  that  was  intended  by  the  observation  in question. We  are not  prepared to  read the  said

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observation or  the final  decision in the case of Chatturbhuj(1) as  supporting the proposition that notwithstanding the  failure  of  the  parties  to comply with  Art. 299(1) the contract would not be invalid. Indeed,  Bose, J.,  has expressly  stated that such  a contract  cannot be  enforced against the  Government   and  is   not  binding   on  it. Therefore, we do not think that Mr. Chatterjee can successfully challenge  the finding  of the Courts below that the contracts in question were invalid. It is  on this  basis that we have to consider the main question  about the applicability of s. 70 to the facts of the present case.      Mr. Sen  argues  that  in  dealing  with  the question about  the scope  and effect  of s. 70 it would be  material to  remember the  background of this section.  He suggests that the rule laid down in the  section is  based on  the notes in Smith’s Leading Cases  to Lampleigh v. Brathwaite (2), and so he  argues that  in construing the said section it would  be relevant  to  refer  to  the  English decisions bearing on the point. The first decision on which 886 Mr. Sen  very strongly  relies is  the case  of H. Young &  Co. v. The Mayor and Corporation of Royal Leamington Spa  (1). In  that case,  the House  of Lords had to consider the effect of the provisions of s.  174(1) of the Public Health Act, 1875 (38 & 39 Vict  c. 55).  The  said  section  enacts  that "every contract made by an urban authority whereby the value  or  amount  exceeds  $50  shall  be  in writing and  sealed with  the common  seal of such authority". It was held that "the provision of the said  section   is  obligatory   and  not   merely directory and  it applies  to an executed contract of which  the urban  authority have  had the  full benefit and enjoyment, and which has been effected by their  agent duly  appointed under their common seal."  It   appears  that   the  Corporation   of Leamington had  entered into  a contract  with one Powis for the execution of certain works to supply the  district   with  water.  Before  Powis  could complete this contract it was terminated. Then the Council,  in  its  capacity  as  urban  authority, passed a  resolution not  under seal  whereby  its engineer was  authorised to  enter into a contract for completing the works left unfinished by Powis. The  said  engineer  employed  the  plaintiff  who completed  the   unfinished  work   and  sued  the Corporation for  the sum  due to him as balance in respect of  the work  executed by  him. This claim was resisted by the Corporation on the ground that the provisions  of s.  174(1) were  mandatory  and since the  contract on which the plaintiff’s claim was based had not complied with the said mandatory provision no  claim  could  be  made  against  the Corporation. The Queen’s Bench Division upheld the defence and  the decision of the Queen’s Bench was confirmed by the Court of Appeal as well as by the House of Lords.      In  dealing   with  the   argument  that  the contract in  question was  not void Lord Blackburn cited 887

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with approval  the observations  made by  Lindley, L.J., in  the Court of Appeal. "In a case like the present before us", observed Lindley, L.J., "if we were to hold the defendants liable to pay for what has been  done under  the contract,  we should  in effect be  repealing the  Act  of  Parliament  and depriving the  ratepayers of that protection which Parliament intended  to secure  for them". He also added "it  may be  said that  this is  a hard  and narrow view  of the  law, but  my answer  is  that Parliament has  thought expedient  to require this view to  be taken,  and it  is not for this or any other Court to decline to give effect to a clearly expressed statute  because it may lead to apparent hardship". Lord  Bramwell went  further and in his speech added  that he  did not agree in the regret expressed  at   having  to   come  to   the   said conclusion. "The  Legislature has made provision", said  Lord   Bramwell,  "for   the  protection  of ratepayers, shareholders  and others, who must not through the  agency of  a representative  body, by requiring the  observance of  certain  solemnities and formalities  which  involve  deliberation  and reflection. That is the importance of the seal. It is idle to say that there is no magio in a water". Mr. Sen argues that the decision in the case of H. Young &  Co.(1). offers  us material assistance in dealing with the question about the effect of non- compliance  of  s.  175(3)  of  the  Act  and  the applicability of s. 70 of the Indian Contract Act.      Incidentally it  may be  pointed out  that in England the  decision in  Young’s case (1) has now become obsolete because the relevant provisions of the Public Health Act, 1875, were repealed in 1933 by the  Local Government Act, 1933. Section 266 of the said  Act authorises  the local  authority  to enter into contract necessary for the discharge of their functions  and provides  that all  contracts made by  a  local  authority  or  by  a  committee thereof shall be made in accordance with the 888 standing orders of the local authority, and in the case of  contracts for  the  supply  of  goods  or materials, or  for the  execution  of  works,  the standing orders  shall (a) require that, except as otherwise  provided   by  or  under  the  standing orders, notice  of the  intention of the authority or the  committee, as  the case  may be,  to enter into the  contract shall  be published and tenders invited, and  (b) regulate  the  manner  in  which notice shall be published and tenders invited. The proviso to  this section  lays down  that a person entering into  a contract with the local authority shall not be bound to enquire whether the standing orders of  the  authority  which  applied  to  the contract  have   been  complied   with,  and   all contracts entered  into with  the local authority, if otherwise  valid, shall  have  full  force  and effect not  with standing that the standing orders applicable thereto  have not  been complied  with. Subsequently in 1960 the Corporate Bodies Contract Act (8 & 9 Eliz., 2 c. 46) has been passed; and s. 1 of  the Act  now governs  the contracts  entered into   by    the   corporate    bodies    wherever incorporated.  The   said  section  provides  that

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(1)(a) a  contract which  if made  between private persons would be by law required to be in writing, signed by the parties to be charged therewith, may be made on behalf of the body corporate in writing signed by  any person  acting under its authority, express or  implied, and  (b) a  contract which if made between private persons would by law be valid although made  by parol only, and not reduced into writing, may  be made  by parol on behalf of their body corporate  by any  person  acting  under  its authority, express or implied; (2) a contract made according to  this section  shall be  effectual in law and  shall bind  the body  corporate  and  its successors and  all other  parties  thereto.  Sub- section (4)  of s. 1 provides that nothing in this section shall  be taken  as preventing  a contract under seal from being made by or on behalf of 889 a body  corporate. It  will thus  be seen that the technical  and   rigorous  requirement   that  the contract shall be made under seal by a corporation has now  become obsolete;  and so  the decision in Young’s case  (1) has ceased to be a matter of any importance.      Before these legislative changes were however made a  distinction used to be drawn between cases where the  requirement of a seal was the result of the  common   law  rule   as   to   contracts   by corporations and  those where the said requirement was based  on a  statutory provision  like the one under s.174(1) of the Public Health Act, 1875. The non-observance   of    the   statutory   provision requiring that  a contract  of the  specified type should be  in writing  and sealed  with the common seal of  the authority  in  question  renders  the contract void  and as such exempts the corporation from any  liability to  pay compensation  for  the performance  of   the  contract   even  where  the corporation may  have had  the  full  benefit  and enjoyment of the said contract. On the other hand, where the  requirement as  to writing  and seal is based not on statutory provision but on principles of common  law, failure  to comply  with the  said requirement would  not afford  a valid  defence to the corporation  to  resist  a  claim  made  by  a contractor for compensation for a work done by him if it  is  shown  that  the  corporation  had  the benefit and  enjoyment  of  the  said  work.  This latter principle  has been  laid down by the Court of Appeal  in  Lawford  v.  The  Billericay  Rural District Council  (2). In  that case  it was  held that ’"where  the purposes for which a corporation is created render it necessary that work should be done or  goods supplied  to carry  those  purposes into  effect   and  orders   are  given   by   the corporation in  relation to  work to  be  done  or goods to  be supplied  to carry  into effect those purposes, if the 890 work done  or goods  supplied are  accepted by the corporation  and   the  whole   consideration  for payment is  executed, there  is a  contract to pay implied from  the acts of the corporation, and the absence of  a  contract  under  the  seal  of  the corporation is  no answer  to an action brought in

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respect of  the work  done or the goods supplied." In coming  to this conclusion Vaughan Williams, L. J., followed the rule recognised by Lord Denman in Doc v.  Taniere (1)  where he said that "where the corporation  have   acted  as   upon  an  executed contract, it  is to  be presumed against them that everything has  been done  that was  necessary  to make it a binding contract upon both parties, they having had  all the  advantage they would have had if the  contract had  been regularly made. That is by no  means inconsistent  with the  rule that, in general, a  corporation can only contract by deed, it is  merely raising  a presumption against them, from their acts, that they have contracted in such a manner  as to  be binding  upon them".  In other words, the  decision was  based on the ground that reliance may  be placed  on  an  implied  contract arising  from  an  executed  consideration  on  an acceptance of the benefit of the contract.      Mr. Sen’s  argument is  that in  dealing with the question about the effect of the contravention of s.175(3) of the Act and the applicability of s. 70 of the Contract Act the decision in the case of Lawford (2)  is irrelevent  while that in the case of H.  Young and  Co. (3) is relevent and material because we are concerned with the contravention of a   statutory   provision   and   not   with   the contravention of  the provision  of  the  rule  of common law. We are not impressed by this argument. The question  which the  appellant has  raised for our decision  falls to  be considered in the light of the  provisions of s. 70 and has to be answered on a  fair  and  reasonable  construction  of  the relevant terms of 891 the said  section. In  such a  case, where  we are dealing with  the problem of construing a specific statutory provision  it would  be unreasonable  to invoke the assistance of English decisions dealing with the statutory provisions contained in English Law. As  Lord Sinha  has observd in delivering the judgment of the Privy Council in Ramanandi Kuer v. Kalawati Kuer  (1) "it  has often been pointed out by this  Board that  where  there  is  a  positive enactment of  the Indian  Legislature  the  proper course is  to examine the language of that statute and to  ascertain its  proper meaning uninfluenced by any  consideration derived  from  the  previous state of  the law or of the English law upon which it may  be founded".  If the  words  used  in  the Indian statute are obscure or ambiguous perhaps it may be permissible in interpreting them to examine the background  of the law or to derive assistance from English  decisions bearing  on the point; but where the words are clear and unambiguous it would be unreasonable  to interpret them in the light of the alleged  background  of  the  statute  and  to attempt to  see that their interpretation conforms to the  said background.  That is  why, in dealing with the  point raised before us we must primarily look to  the law  as embodied in s. 70 and seek to put upon it a fair and reasonable construction.      Section 70 reads thus:           "Where a  person lawfully  does anything      for another  person, or  delivers anything to

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    him, not intending to do so gratuitously, and      such other person enjoys the benefit thereof,      the latter  is bound  to make compensation to      the former  in respect of, or to restore, the      thing so done or delivered."      It is  plain that  three conditions  must  be satisfied before this section can be invoked. The 892 first condition  is that  a person should lawfully do  something   for  another   person  or  deliver something to  him. The second condition is that in doing the  said thing or delivering the said thing he must  not intend  to act  gratuitously; and the third is  that the other person for whom something is done  or to  whom something  is delivered  must enjoy the  benefit thereof.  When these conditions are  satisfied  s.  70  imposes  upon  the  latter person, the  liability to make compensation to the former in  respect of  or to restore, the thing so done or  delivered. In  appreciating the scope and effect of  the provisions of this section it would be useful  to illustrate how this section it would operate. If a person delivers something to another it would be open to the latter person to refuse to accept the  thing or to return it; in that case s. 70 would not come in to operation. Similarly, if a person does something for another it would be open to the  latter person  not to accept what has been done by the former; in that case again s. 70 would not apply.  In other  words, the person said to be made liable  under s. 70 always has the option not to accept  the thing  or to  return it. It is only where he  voluntarily accepts  the thing or enjoys the work  done that  the  liability  under  s.  70 arises. Taking  the facts  in the  case before us, after the  respondent constructed  the  warehouse, for instance,  it was  open to  the  appellant  to refuse to  accept the  said warehouse  and to have the benefit  of it.  It could have called upon the respondent to demolish the said warehouse and take away the  materials used by it in constructing it; but; if  the appellant accepted the said warehouse and used it and enjoyed its benefit then different considerations come  into play  and s.  70 can  be invoked. Section  70 occurs  in  chapter  V  which deals  with  certain  relations  resembling  those created by  contract. In other words, this chapter does not  deal  with  the  rights  or  liabilities accruing from the contract. It deals with the 893 rights and  liabilities  accruing  from  relations which resemble  those created  by  contract.  That being so,  reverting to  the facts  of the present case once  again after  the respondent constructed the  warehouse   it  would  not  be  open  to  the respondent to  compel the  appellant to  accept it because what  the respondent  has done  is not  in pursuance of  the terms  of any valid contract and the respondent in making the construction took the risk  of   the  rejection   of  the  work  by  the appellant. Therefore, in cases falling under s. 70 the  person   doing  something   for  another   or delivering something to another cannot sue for the specific performance  of the  contract nor ask for damages for  the breach  of the  contract for  the

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simple reason  that there  is no  contract between him  and   the  other  person  for  whom  he  does something or  to whom  he delivers  something. All that s. 70 provides is that if the goods delivered are accepted  or  the  work  done  is  voluntarily enjoyed then the liability to pay compensation for the enjoyment  of the said goods or the acceptance of the  said work  arises. Thus, where a claim for compensation is made by one person against another under s.  70, it  is  not  on  the  basis  of  any subsisting contract  between the parties, it is on the basis  of the  fact that something was done by the party  for another  and the  said work so done has been  voluntarily accepted by the other party. That  broadly   stated  is   the  effect   of  the conditions prescribed by s. 70.      It is,  however, urged  by Mr.  Sen that  the recognition  of   the   respondent’s   claim   for compensation virtually  permits the  circumvention of the mandatory provisions of s. 175(3), because, he argues,  the work  done by the respondent is no more than  the performance of a so-called contract which is  contrary to the said provisions and that cannot be  the true  intent of  s. 70.  It is thus clear  that   this  argument   proceeds   on   the assumption that if a decree is passed in favour of the respondent for 894 compensation as  alternatively claimed  by it,  it would in  substance amount to treating the invalid contract as  being valid.  In  our  opinion,  this argument is  not well-founded. It is true that the provisions of  s. 175(3)  are mandatory and if any contract is  made in  contravention  of  the  said provisions the said contract would be invalid; but it must be remembered that the cause of action for the alternative claim of the respondent is not the breach of  any contract by the appellant; in fact, the alternative  claim is  based on the assumption that  the  contract  in  pursuance  of  which  the respondent made  the constructions in question was ineffective and as such amounted to no contract at all. The  respondent says  that it  has done  some work which  has been  accepted and  enjoyed by the appellant and  it is  the voluntary acceptance and enjoyment of  the said  work which is the cause of action for  the alternative  claim. Can it be said that when  the respondent built the warehouse, for instance, without  a valid contract between it and the appellant  it was  doing something contrary to s. 175(3)?  As we  have already made it clear even if the respondent built the warehouse he could not have forced  the appellant  to accept  it and  the appellant may  well have  asked it to demolish the warehouse and  take away the materials. Therefore, the mere  act of constructing the warehouse on the part  of   the  respondent   cannot  be   said  to contravene the  provisions of  s. 175(3).  In this connection  it   may  be   relevant  to   consider illustration (a)  to s.  70. The said illustration shows that  if A  a tradesman  leaves goods at his house by  mistake, and  B treats  the goods as his own he  is bound  to pay  A for  them. Now,  if we assume that B stands for the State Government, can it be  said that A was contravening the provisions

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of s.  175(3) when by mistake he left the goods at the house  of B?  The answer  to this  question is obviously in the negative. Therefore, if goods are delivered by  A to the State Government by mistake and the 895 State Government accepts the goods and enjoys them a claim  for compensation can be made by A against the State Government, and in entertaining the said claim  the   Court  could  not  be  upholding  the contravention of  s. 175(3) at all either directly or indirectly.  Once it is realised that the cause of action for a claim for compensation under s. 70 is based not upon the delivery of the goods or the doing of  any work as such but upon the acceptance and enjoyment  of the  said goods or the said work it would  not be difficult to hold that s. 70 does not treat  as valid the contravention of s. 175(3) of the  Act. That being so, the principal argument urged   by   Mr.   Sen   that   the   respondent’s construction of  s.70 nullifies  the effect  of s. 175(3) of the Act cannot be accepted.      It is  true that s. 70 requires that a person should lawfully  do something  or lawfully deliver something to another. The word "lawfully" is not a surplusage and  must be  treated as  an  essential part of  the requirement  of s. 70. What then does the word  "lawfully" in  s. 70  denote ?  Mr.  Sen contends that the word "lawfully" in s. 70 must be read in the light of s. 23 of the said Act; and he argues that  a thing  cannot be  said to have been done lawfully  if the  doing of it is forbidden by law. However,  even if  this test is applied it is not possible  to hold that the delivery of a thing or a doing of a thing the acceptance and enjoyment of which  gives rise  to a  claim for compensation under s.  70 is forbidden by s. 175(3) of the Act; and so  the interpretation  of the word "lawfully" suggested by  Mr. Sen  does not  show that  s.  70 cannot be  applied to  the facts  in  the  present case.      Another argument has been placed before us on the strength  of the  word "lawfully"  and that is based  upon   the  observations   of  Mr.  Justice Straight in Chedi Lal v. Bhagwan Dass (1). Dealing with the  construction  of  s.  70  Straight,  J., observed: 896 "I presume that the legislature intended something when it  used the  word "lawfully" and that it had in contemplation cases in which a person held such a relation to another as either directly to create or  by   implication  reasonably   to  justify  an inference that by some act done for another person the party  doing the  act was entitled to look for compensation for  it to the person for whom it was done." It  is urged that in the light of this test it cannot  be said that the respondent held such a relation to  the appellant  as to be able to claim compensation from  the appellant. With respect, we are not  satisfied that  the  test  laid  down  by Straight, J.,  can be  said to be justified by the terms of  s. 70. It is of course true that between the  person   claiming  compensation   and  person against   whom   it   is   claimed   some   lawful

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relationship  must   subsist,  for   that  is  the implication of  the use  of the word "lawfully" in s. 70; but the said lawful relationship arises not because the  party claiming  compensation has done something  for   the  party   against   whom   the compensation is  claimed but because what has been done by  the former  has been accepted and enjoyed by the  latter. It is only when the latter accepts and enjoys  what is  done by  the  former  that  a lawful relationship  arises between the two and it is the  existence of  the said lawful relationship which gives  rise to  the claim  for compensation. This aspect  of the  matter has  not been properly brought into  the picture  when Straight, J., laid down the  test on  which  Mr.  Sen’s  argument  is based. If  the said test is literally applied then it is  open to  the comment  that if one person is entitled by  reason of the relationship as therein contemplated  to  receive  compensation  from  the other s.  70 would be hardly necessary. Therefore, in our  opinion, all  that the  word "lawfully" in the context  indicates is  that after something is delivered or  something is  done by one person for another and  that thing is accepted and enjoyed by the latter,  a lawful relationship is born between the two which 897 under the  provisions of  s. 70  gives rise  to  a claim for compensation.      There is no doubt that the thing delivered or done must not be delivered or done fraudulently or dishonestly nor  must  it  be  delivered  or  done gratuitously.  Section   70  is  not  intended  to entertain claims  for compensation made by persons who officiously  interfere  with  the  affairs  of another or  who  impose  on  others  services  not desired by them. Section 70 deals with cases where a person does a thing for another not intending to act gratuitously  and the  other enjoys  it. It is thus clear  that when a thing is delivered or done by one  person it must be open to the other person to  reject   it.  Therefore,  the  acceptance  and enjoyment of  the thing delivered or done which is the basis  for the claim for compensation under s. 70 must  be voluntary.  It would  thus be  noticed that  this   requirement  affords  sufficient  and effective safeguard  against spurious claims based on unauthorised  acts. If  the  act  done  by  the respondent  was   unauthorised  and  spurious  the appellant could  have easily refused to accept the said act  and then  the respondent  would not have been able  to make a claim for compensation. It is unnecessary to  repeat that in cases falling under s. 70  there is  no scope  for claims for specific performance or for damages for breach of contract. In  the   very  nature   of  things   claims   for compensation are  based on  the footing that there has been  no contract  and that the conduct of the parties in  relation to  what is delivered or done creates a relationship resembling that arising out of contract.      In regard  to  the  claim  made  against  the Government of  a State  under s. 70 it may be that in many cases the work done or the goods delivered are the  result of  a request made by some officer

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or other on behalf of the said Government. In such a case, the request may be in effective or invalid for 898 the reason that the officer making the request was not authorised  under s.  175(3), or,  if the said officer was  authorised to  make the  said request the request becomes inoperative because it was not followed up  by a  contract executed in the manner prescribed by s. 175 (3). In either case the thing has been  delivered or  the  work  has  been  done without a  contract and  that brings  in s.  70. A request is  thus not  an element  of s.  70 at all though the existence of an invalid request may not make s.  70 inapplicable. An invalid request is in law no  request at  all, and so the conduct of the parties has  to be  judged on the basis that there was no  subsisting contract  between them  at  the material time.  Dealing with the case on the basis we  have   to  enquire   whether   the   requisite conditions  prescribed   by  s.   70   have   been satisfied. If  they are satisfied then a claim for compensation can  and must be entertained. In this connection it  is necessary to emphasise that what s. 70 provides is that compensation has to be paid in respect  of the  goods delivered  or  the  work done. The  alternative to  the  compensation  thus provides  is  the  restoration  of  the  thing  so delivered or  done. In  the present case there has been no  dispute about  the amount of compensation but normally  a claim  for compensation made under s. 70  may not mean the same things as a claim for damages for  breach of  contract if a contract was subsisting between the parties. Thus considered it would, we think, not be reasonable to suggest that in recognining  the claim  for compensation  under s.70  we   are  either   directly  or   indirectly nullifying the  effect of s. 175 (3) of the Act or treating as valid a contract which is invalid. The fields covered  by the two provisions are separate and distinct,  s. 175 (3) deals with contracts and provides how they should be made. Section 70 deals with cases  where there  is no  valid contract and provides for  compensation to  be paid  in a  case where the three requisite conditions prescribed by it are satisfied. We are 899 therefore, satisfied  that there  is  no  conflict between the two provisions.      It is  well-known that  in the functioning of the vast  organisation  represented  by  a  modern State Government officers have invariably to enter into a  variety of  contracts which are often of a petty nature.  Sometimes they  may have  to act in emergency, and  on many  occasions, in the pursuit of the  welfare policy  of  the  State  Government officers may have to enter into contract orally or through correspondence  without strictly complying with the  provisions of  s. 175(3) of the Act. If, in all  these cases,  what is done in pursuance of the contracts is for the benefit of the Government and for  their use  and enjoyment and is otherwise legitimate and  proper s.  70 would  step  in  and support a  claim  for  compensation  made  by  the contracting parties  notwithstanding the fact that

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the contracts  had not been made as required by s. 175(3). If it was held that s. 70 was inapplicable in regard  to such dealings by government officers it   would    lead   to   extremely   unreasonable consequences and  may even  hamper, if  not wholly bring to a standstill the efficient working of the Government from  day to  day. We  are referring to this aspect  of the  matter not  with  a  view  to detract  from   the  binding   character  of   the provisions of  s. 175  (3) of the Act but to point out that  like ordinary  citizens even  the  State Government is  subject to the provisions of s. 70, and if  it has accepted the things delivered to it or enjoyed  the work  done for it, such acceptance and enjoyment  would  afford  a  valid  basis  for claims of compensation against it. Claims based on a contract  validly made  under  s.  175(3)  must, therefore,  be   distinguished  from   claims  for compensation  made   under  s.  70,  and  if  that distinction is  borne in  mind there  would be  no difficulty in  rejecting the  argument that  s. 70 treats as  valid the contravention of s. 175(3) of the Act. In a sense it may be said that 900 s.  70   should  be   read  as  supplementing  the provisions of s. 175(3) of the Act.      There is  one more argument which yet remains to be  considered. Mr.  Sen ingeniously  suggested that the position of the appellant is like that of a minor  in the  matter of  its capacity to make a contract, and  he argues  that just  as a minor is out side  the purview  of s.  70 so  would be  the appellant. It  is true  as has  been held  by  the Privy  Council   in  Mohori   Bibee  v.  Dhurmodas Ghose(1)  that   a  minor,   like  a  lunatic,  is incompetent, to contract, and so where he purports to enter  into a  contract the alleged contract is void and  neither s.  64 nor s. 65 of the Contract Act can apply to it. It is also true that s. 68 of the  Contract   Act  specifically   provides  that certain claims for necessaries can be made against a  minor  and  so  a  minor  cannot  be  sued  for compensation under  s.  70  of  the  Contract  Act (Vide: Bankay  Behari Prasad  v.  Mahendra  Prasad (2). Mr.  Sen pressed  into service the analogy of the minor and contends that the result of a 175(3) of the Act is to make the appellant incompetent to enter into  a contract unless the contract is made as required  by s.  175(3). In  our opinion,  this argument  is  not  well  founded.  Section  175(1) provides for  and  recognises  the  power  of  the Province to  purchase or  acquire property for the purposes there specified and to make contracts. No doubt  s.   175(3)  provides  for  the  making  of contracts in  the specified  manner.  We  are  not satisfied that  on reading  s. 175  as a  whole is would be  possible to  entertain the argument that the appellant  is in  the position  of a minor for the  purpose   of  s.  70  of  the  Contract  Act. Incidentally,  the  minor  is  excluded  from  the operation of  s. 70  for the  reason that his case has been  specifically provided for by s. 68. What s. 70 prevents is unjust enrichment and it applies as much to individuals as to corporations and 901

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Government. Therefore, we do not think it would be possible to  accept the  very broad  argument that the State  Government is outside the purview of s. 70. Besides,  in the  case of  a minor,  even  the voluntary acceptance  of the  benefit of work done or thing  delivered which is the foundation of the claim under s. 70 would not be present, and so, on principle s. 70 cannot be invoked against a minor.      The question  about the  scope and  effect of s.70 and  its applicability  to cases  of  invalid contracts made  by the Provincial Government or by corporations  has   been  the   subject-matter  of several judicial decisions in this country; and it may be  stated broadly  that the  preponderance of opinion is  in favour  of the  view which  we  are inclined to  take (Vide: Mathura Mohan Saha v. Ram Kumar Saha  and Chittagong  District Board; Abaji, Sitaram  Modak   v.  The   Trimbak   Municipality; Pallonjee Eduljee  & Sons,  Bombay v. Lonavla Gity Municipality; Municipal  Committee, Gujranwala  v. Fazal Din;  Ram Nagin Singh v. Governor-General in Council; Union  of India v. Ramnagina Singh; Union of India  v. New  Marine Coal  Co.  (Bengal)  Ltd. Damodara Mudalar  v. Secretary of State for India; Corporation of  Madras  v.  M.  Kothandapani-Naidu Yogambal  Boyee   Ammani  Ammal  v.  Naina  Pillai Markayar; and,  Ram Das  v. Ram  Babu. Sometimes a note of  dissent from  this view has no doubt been struok (Vide  : Chedi  Lal v.  Bhawan  Das;  Radha Kishana Das v. The Municipal Board of Benare Anath Bandha Deb  v.  Dominion  of  India  Punjabhai  v. Bhagawan Das  Kisandas and  G. R. Sanchuiti v. Pt. R. K. Choudhari. 902      Before we  part with  this point  we think it would be  useful to refer to the observations made by Jenkins, C. J. in dealing with the scope of the provisions of  s. 70  in Suchand Ghosal v. Balaram Mardana(1). "The  terms of s.70", said Jenkins, C. J., "are  unquestionably wide,  but  applied  with discretion  they   enable   the   Courts   to   do substantial justice  in cases  where it  would  be difficult  to  impute  to  the  persons  concerned relations actually  created by  contract.  It  is, however, especially  incumbent on  final Courts of fact  to  be  guarded  and  circumspect  in  their conclusions  and   not  to   countenance  acts  or payments that are really officious."      Turning to the facts of this case it is clear that both the Courts have found that the acts done by the  respondent were  done in fact in pursuance of the  requests invalidly  made by  the  relevent officers of  the appellant,  and so  they must  be deemed to  have been  done without  a contract. It was not disputed in the Courts below that the acts done by  the respondent  have been accepted by the appellant and  the buildings constructed have been used by  it. In  fact, both  the learned judges of the Appellate  Court have  expressly  pointed  out that the  appellant did  not contest  this part of the respondent’s case. "I should mention", says S. R. Das  Gupta, J.,  "that the  appellant  did  not contest before us the quantum decreed in favour of the plaintiff";  and Bachawat,  J.,  has  observed that "the materials from the record also show that

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the Government  urgently needed the work which was done by  the respondent  and that  the  Government accepted it as soon as it was done and used it for its benefit".  In fact the learned judge adds that "the learned  Advocate-General  frankly  confessed that this  is a  case where the Province of Bengal was  under   a  moral   obligation  to   pay   the respondent", and has further added 903 his comment that "an obligation of this kind which is apart  from the  provisions of  s. 70 of Indian Contract Act  a moral and natural obligation is by the provision  of that  section  convertd  into  a legal obligation".  Therefore once  we  reach  the conclusion that  s.  70  can  be  invoked  by  the respondent against  the appellant  on the findings there is no doubt that the requisite conditions of the said  section have  been satisfied. That being so, the  Courts below  were right in decreeing the respondent’s claim.      The  result   is  the  appeal  fails  and  is dismissed with costs.      SARKAR, J.-We  also think  that  this  appeal should fail.      In  1944,   the   respondent,   a   firm   of contractors,  had   at  the   request  of  certain officers of  the Government  of Bengal  as it then existed, done  certain construction  work for that Government and the latter had taken the benefit of that work.  These officers,  however, had not been authorised by  the Government  to make the request on its behalf and the respondent was aware of such lack of  authority all  along. These facts are not in controversy.      As the respondent did not receive payment for the work,  it filed a suit in the Original Side of the High  Court at  Calcutta in  1949 against  the Province of West Bengal for a decree for moneys in respect of  the work.  The High Court, both in the original hearing  and appeal,  held that there was no  contract   between  the   respondent  and  the Government in  respect of  the work  on which  the suit might  be  decreed  but  the  respondent  was entitled  to  compensation  under  s.  70  of  the Contract Act  and that  the liability  to pas  the compensation   which   was   originally   of   the Government  of   Bengal,  had   under  the  Indian Independence (Rights,  Properties and Liabilities) Order, 1947,  devolved on the Province West Bengal (now the State 904 of West  Bengal) which  came into existence on the partition of  India. In  the result the respondent suit succeeded.  The  State  of  West  Bengal  has appealed against the decision of the High Court.      The only  question argued  in this  appeal is whether the  High Court  was right  in  passing  a decree under  s. 70  of the Contract Act. We think it was.      Now s. 70 is in these terms:-           Section 70   "Where  a  person  lawfully      does anything for another person, or delivers      anything to  him,  not  intending  to  do  so      gratuitously, and  such other  person  enjoys      the benefit  therefor, the latter is bound to

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    make compensation  to the  former in  respect      of, or  to restore,  the  thing  so  done  or      delivered."      G. K.  Mitter, J.,  who heard the suit in the first instance,  observed in regard to s. 70 that, "The  requisites   for  entitling   a  person   to competion for work done are: (i) that it should be lawfully done, (ii) that it should not be intended to be  done gratuitously and (iii) that the person for whom the work is done should enjoy the benefit thereof". We  agree  with  this  analysis  of  the section and  the view  of the  High Court that the necessary requisites exist in the present case.      In this  Court the  case was argued on behalf of the  appellant on the basis that the High Court was in  error in  holding that, relief under s. 70 can  be  granted  where  the  Government  has  the benefit of  work done  under a  contract  with  it which was  not made  in terms  of s. 175(3) of the Government of India Act, 1935, and was, therefore, invalid. Various  authorities,  both  English  and Indian, were cited in support of this argument. We think it  unnecessary to discuss them as the basis on which  the present  contention is advanced does not exist  in this  case. Nor do we think that the High Court decided the case  on that basis. 905      It is  clear from  the findings  of the  High Court, to  which we  shall presently  refer,  that there was  in fact no agreement, valid or invalid, between the  respondent  and  the  Government.  It follows that  the work had not been done under any agreement  with   the  Government.   No  question, therefore arises  as to the validity or invalidity of an  agreement with  the Government because of a failure to  comply with the terms of s. 175 (3) of the  Government   of  India  Act  nor  as  to  the applicability of  s. 70  of the  Contract Act  for granting  compensation   for  work  done  under  a contract with  the  Government  which  is  invalid because it  had  not,  been  made  in  the  manner prescribed by s. 175(3).      The reason  why we  say  that  there  was  no agreement whatever  between the Government and the respondent is  that the  agreement  could  in  the present case  have  been  made  only  through  the officers  but   these  officers  did  not  to  the knowledge of  the respondent possess the authority of the Government to bind it by contract. That was what the High Court held, as would appear from the observations of  the learned  Judges which we will now set out. G. K. Mitter, J., said, "The plantiff never  had  any  doubt  about  the  fact  that  no agreement  of  any  kind  had  been  entered  into between it  and the  province of  Bengal" and "The plantiff never  right from the beginning, that the officers  who  were  requesting  the  plantiff  to proceed with  the work  had, no authority to enter into a binding contract with the plantiff and that they were  awaiting sanction from higher officials which they  hoped to  get." The  learned Judges of the appellate  bench  also  took  the  same  view. Bachawat,  J.,   observing,  "Neither   of   these officers had  any authority  from the  Province of Bengal to make the request to the plaintiff. There

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was no agreement either express or implied between the plaintiff and 906 the Province  of Bengal.  There is,  therefore, no agreement which  is void or which is discovered to be void".  The learned Judges no doubt referred to s. 175(3)  of the Government of India Act that was obviously because  arguments based  on it had been advanced before  them. They distinguished the case of Union  of India v. Ramnagina Singh (1) in which it had  been held  that s.  70 of the Contract Act had no  application where  work was  done under  a request which had resulted in a void agreement, on the ground that in the present case there had been no request  from the  Government  as  the  persons making the  request had  no authority to do so for the Government  and so no question of an agreement with the  Government, which was void, arose. It is wrong, to contend, as the learned advocate for the appellant did, that the learned Judges of the High Court decided  the case on the basis that s. 70 is applicable where  work is  done for the Government under an  invalid contract  with it.  No doubt the learned Judges  dealt with  certain cases  dealing with the  question of  work done  under an invalid contract but that was because those cases had been cited at the bar.      We are  not, therefore,  called upon  in  the present  case   to  pronounce  upon  the  question whether compensation  under s.  70 of the Contract Act can  be awarded  where goods are delivered to, or work  done for, the Government under a contract with it  which is  invalid for  the reason that it had not  been made  in the  terms prescribed by s. 175(3) of  the Government  of India  Act and we do not do so.      Now, if  the work  was done at the request of the officers of Government who had no authority to make the request for Government and the respondent was aware  of this,  it would follow that the work had been  done at the request made by the officers in their  personal capacity.  In such  a  case  it seems to us 907 that if the request resulted in a contract between the officer  and the  respondent under  which  the officers  were   personally  bound   to  pay   the respondent reasonable  remuneration for  the work, then it would be a very debatable question whether the respondent  would have  any claim  against the Government under  s. 70.  We say debatable because we have  grave doubts  if the section was intended to give a person in the position of the respondent who had  a remedy  against the officers personally under a  contract with  them, a remedy against the Government for  the same  thing in addition to the remedy under  the contract.  We, however, need say no more on this aspect of the matter for we do not think that  any contract  had in  the present case come into  existence between  the officers and the respondent.      It is  true that when one requests another to do work  for him a tacit promise to pay reasonable remuneration for  the  work  may  be  inferred  in certain circumstances  and that promise may result

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in a  contract when  the work is done which may be enforced. That  may also  be  the  case  when  the request is  to do  the work for another’s benefit, for consideration  for the promise would in either case be  the detriment suffered by the promisee by doing the  work. The following illustration may be given from  Pollock on Contracts (13th edition) p. 9:-  "The  passenger  who  steps  into  ferry-boat thereby requests the ferryman to take him over for the usual  fare". We  should suppose  the position would be  the same  where a  person expressly asks the ferryman  to carry him or another over without saying anything  about the remuneration to be paid for the  carriage; in  each  of  these  cases  the person  making   the  request   would  be  tacitly promising to pay the ferryman his usual fare.      A tacit  promise of  this kind may however be inferred only if the circumstances are such that 908 from them  a man  of business and experience would consider  it   reasonable  to   infer.  It  is  an inference of  fact and  not which any law requires to be  made An  interesting passage  from Cheshire and Fifoot’s  Law of  Contract (5th Edition) p. 30 may be  quoted here:  "It would  be  ludicrous  to suppose    that     businessmen    couch     there communications in  the  form  of  a  catechism  of reduce their  negotiations to  such a  species  of interrogatory  as  was  formulated  in  the  Roman stipulatio.  The   rules  which  the  Judges  have elaborated  from   the  promise   of   offer   and acceptance are  neither the  rigid  deductions  of logic nor the inspiration of natural justice. They are only presumption, drawn from experience, to be applied in  so far  as  they  serve  the  ultimate object   of    establishing   the   phenomena   of agreement....."      Now on the facts of this case we are entirely unable to  infer any tacit promise by the officers to pay  personally for  the work done. As the High Court pointed  out, the officers made it clear, of which  indeed  the  respondent  itself  was  fully aware,  that   the  payment   would  be   by   the Government, and,  therefore, that  they themselves would   have   no   liability.   They   said   the respondent’s "estimates have been submitted to the Deputy Director  for formal  sanction  which  when received will  be communicated  to them. Meanwhile they must not delay the work." The Deputy Director presumably was the not officer authorised to grant the sanction.  He  however  was  not  one  of  the officers who  had made  the request  for the work. The respondent  was fully  aware that the work was needed for  the Government and the officers had no personal  interest   in  it.   And  what  is  most important is  that  the  respondent  never  itself thought that  the officers  had made  any personal promise to  pay. Throughout,  the  respondent  had been requesting  the Government  to  sanction  the orders placed by 909 the officers, submitting estimates for the work to the  Government  and  requesting  the  latter  for payment; not  once did it look to the officers for any liability  in respect  of the  work done under

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their  orders.  The  respondent  had  on  previous occasions done  work for the Government on similar requests and  had never  thought that the officers had there by undertaken any personal liability. If it itself  did not  get that  impression, no other person of experience could reasonably infer in the same circumstances a tacit promise by the officers to pay personally. It is of some interest to point out that  the learned  advocate for  the appellant never even suggested there was such a contract. We find it  impossible in such circumstances to think that there  was any  tacit promise by the officers personally to  pay for  the work  or any  contract between them and the respondent in respect of it.      It  is  also  not  possible  to  say  on  the materials on the record that the officers promised to the  respondent that  they would secure payment for the  work done.  We think Bachawat, J., of the appellate bench  of the  High Court  correctly put the  position   when  he   said:-  "The  work  was certainly done  at the  request of  these officers but it was done under circumstances in which it is not possible to imply that the officers personally promised to  pay for  the  work  done.  There  is, therefore, no scope for any argument that the work was done  in course  of performance  of a contract between  the   plaintiff  and   the  officers  who requested him  to do  the work...... The materials on the  record clearly show that the plaintiff did the work  for the  Province of  Bengal. Credit was given to  the Province  of Bengal  and not  to the officers. It is impossible to say on the materials on  the   record  that   work  was  done  for  the officers." If the other learned Judges of the High Court did  not expressly  refer to  this aspect of the case  that was  clearly  because  it  was  not argued by the advocates; it was obviously not 910 a  point   which  any  advocate  could  reasonably advance on the facts of this case.      We are,  however, not  to  be  understood  as saying that  in no  case can  Government  officers undertake personal liability to contractors in the position of  the respondent. Each case must depend on its  own facts.  Circumstances may  conceivably exist where  it would  be reasonable  to  infer  a personal undertaking  by the  officers  to  pay  a contractor doing work for the Government. All that we decide is that such is not the present case.      The position  then is that the respondent had done the  work  for  the  Government  without  any contract with  anybody. The  question is,  are the three requisites  of  s.  70,  as  very  correctly formulated by  G. K.  Mitter, J.,  satisfied ?  We think  they   are.  There   is  no   dispute  that Government had  taken the  benefit of the work. We also feel  no doubt  that the  respondent did  not intend to  do the  work gratuitously. It submitted its estimate  for the  work and was very prompt in submitting its  bill after  the work  was done. It had  earlier   in  similar  circumstances  without proper contract  with the Government done work for it at  the request  of its  officers and  received payment from  the Government.  It was  a  firm  of contractors whose  trade it was to carry out works

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of construction for payment and the Government was aware of this. There is no reason to think that in the present  case it did the work gratuitously. On its part  the Government  never thought  that  the work had  been done  gratuitously  for  it  raised objections to the bill submitted by the respondent on grounds  of bad quality of the work and that it had  been   done  without   proper  sanction.  The Government urgently  needed the work and no sooner was it  completed, it  promptly put it to its use. It was  plainly fully aware that the work was done for it  by a  party whose  trade was  to work  for remuneration 911 and who  had previously  done similar work and had been paid for it by the Government.      The request  by the  officers does not affect the question  that arises  in this case. It had no compelling effect  and no  effect as a promise and in fact no effect at all. Its practical use was to inform the  respondent that  the Government needed the work  immediately and it would give a sanction in respect of it in due course and pay for it when done,  an  information  on  which  the  respondent readily acted  as it  gave it  a chance to do more business. So  the work  was done by the respondent really out  of its  free  choice  by  way  of  its business and  with the  intention of  getting paid for it.      We also  feel no doubt that the work was done lawfully. It  was work  which the Government badly needed. We will assume for the present purpose, as the learned  advocate for the appellant said, that work done  under a  contract with  the  Government which is  invalid in  view of  the provision of s. 175(3) of  the Government  of India  Act, is  work unlawfully done.  The learned  advocate  contended that would  be because  thereby section 175 (3) of the Government  of India Act would be evaded which is the  same thing as doing that which the section forbids. Assume  that is so. But that section does not say  that if  work is  done for the Government without any  contract  or  agreement  at  all  and voluntarily, as was done in the present case, that work would not have been lawfully done. Government is free  not to  take the  benefit of  such  work. There is  no law, and none has been pointed out to us, which  makes the  doing of such work unlawful. No other reason was given or strikes us for saying that the  work was  not lawfully done. There is no law, as  Bachawat, J., said that Government cannot take any  work except  under a contract in respect of it made in terms of s. 175(3) of the Government of India Act. That section may forbid a Government to take  work under  a contract  which is  invalid because 912 not in  terms of  it, but  it  does  not  make  it unlawful for the Government to take the benefit of work done  for it  without any contract at all. We should suppose  that if  the doing of the work was unlawful the  Government would  not have  accepted the benefit  of  it.  In  the  present  case,  the Government needed the work badly and we do not see how then  the Government can say that the work was

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not done  lawfully. We  therefore think  that  the work was done lawfully.      It was contended that the obligation under s. 70  of   the   Contract   Act   arises   only   in circumstances in  which  English  law  would  have created an  obligation on  the basis of an implied contract or  a quasi-contract and that there could be no  implied contract or quasi-contract with the Government because  a contract  could be made with it only  in  accordance  with  s.  175(3)  of  the Government  of   India  Act.   Now  it   has  been repeatedly held  that a  resort to  English law is not justified  for deciding  a question arising on our statute  unless the  statute is  such that  it cannot  be   reasonably  understood   without  the assistance of  English law,  indeed, there is good authority for  saying that s. 70 was framed in the form in  which it appears with a view to avoid the niceties of  English law  on the  subject, arising largely from  historical reasons  and to  make the position simple  and free from fictions of law and consequent complications: see Pollock on Contracts (13th ed.)  p. 10. Furthermore, we do not see that s. 175(3)  in any way prevents a contract with the Government being  implied  or  a  Government  from incurring an  obligation under a quasi-contract. A contract implied in law or a quasi-contract is not a real  contract or, as it is called, a consensual contract and s. 175(3) is concerned only with such contracts. The  section says  that "all  contracts made in the exercise of the executive authority of the  Federation   or  of   a  Province   shall  be expressed" in a certain manner and 913 "shall be  executed on  behalf  of  the  Governor- General or  Governor by  such person  and in  such manner  as   he  may   direct  or  authorise".  It therefore applies  to consensual  contracts  which the Government makes and not to something which is also called  a contract  but which  the law brings into existence  by a  fiction irrespective  of the parties having  agreed to it. Now, by its terms s. 70 of  the Contract  Act must be applied where its requisites exist,  if it  is necessary  to imply a contract or  to contemplate  the  existence  of  a quasi-contract for  applying the section that must be done  and we do not think that s. 175(3) of the Government of  India Act prevents that, nor are we aware of any other impediment in this regard. This argument must also fail.      We,  therefore,   feel  that  s.  70  of  the Contract Act  applies to  this case and the decree of the High Court should be confirmed.                                  Appeal dismissed.