JUDGMENT
1. Heard learned counsel for the appellant. No one appears from the side of the respondents.
2. This appeal, under Clause 10 of the Letter Patent is directed against the judgment dated 15th October, 1998 passed in First Appeal No. 58 of 1987(R) whereby the learned single Judge allowed the appeal and set aside the judgment and decree passed by the trial Court in Money Suit No. 13/94. Plaintiff filed a Money Suit for recovery of sum of Rs. 46,449,68 paise together with interest being the charges for transportation of the Pusler (fire wood).
3. The short facts of the case is that the appellant invited a tender called the transport contract for transportation of forest produce mentioned in the said notice from Panchkeri. Plantation Groups to Padma Depot. In pursuance of the said tender
notice, the respondent submitted his tender which was duly accepted on 18.10.1982 by the forest department and letter was issued for execution of the agreement. Respondent after execution of the agreement, started transporting the forest produce. In the midst of the agreement. Respondent No. 2, Divisional Forest Officer, Daltonganj negotiated with the plaintiff-respondent for transportation of pusler also, which was not included in the aforesaid agreement. Plaintiffs case is that he agreed to transport pusler at the rate of Rs. 2.19 paise per piece. The Divisional Forest Officer without finalizing the rate, allowed the plaintiff to transport the said pusler. Accordingly, the plaintiff started transporting pusler and from time to time, submitted Bills. The plaintiff case was that the respondents unilaterally reduced the rate of transportation charge from Rs. 2.19 paise to Rs. 1.75 paise per piece and made some ad hoc payment against different bills. Out of the total bills, major portion of the amount was paid and the balance amount remained unpaid for which, the plaintiff instituted the suit after serving notice as required under Section 80, CPC.
4. The defendant contested the suit by filing statement. The defendant although, not disputed the agreement for transportation of pusler, but their case is that the range Officer has no authority to entertain the bills of the plaintiff and to send it to the Divisional Forest Officer for approval. The defendant’s further case is that all the dues were paid to the plaintiff for transportation and other charges and nothing remained dues were the plaintiff. The learned trial Court framed following issues :–
1. Is the suit maintainable as framed?
2. Has the plaintiff cause of notice for the suit?
3. Is the suit barred by law of Limitation?
4. Whether the payment of transport charges of pusler used to be made on the basis of bills at the rate of Rs. 1.75 paise per piece submitted by the plaintiff will be treated as the rate of transportation charge of pusler or not?
5. Whether the defendants are stopped from challenging the rate of transport charges of pusler at Rs. 1.75 paise per piece as they paid at this rate previously to the plaintiff?
6. Is the plaintiff entitled to get transport charges as claimed?
7. To what relief or reliefs the plaintiff’s entitled?”
5. Issue Nos. 4, 5 and 6 were taken up together by the trial Court who after considering the evidence adduced by the parties recorded a finding that contract regarding transportation of pusler was made between D.F.O. and the plaintiff in the month of December, 1982 and the charge for transporting pusler a was decided at the rate of Rs. 2.19 paise per piece. The trial Judge further found that although Bills, for the transportation of pusler, was submitted at the rate of Rs. 2.19 paise per piece but it was passed only at the rate of Rs. 1.75 paise per piece and ad hoc payment were made to the plaintiff. The trial Judge, therefore, decreed the suit.
6. Aggrieved by the said judgment, respondent State of Bihar preferred aforementioned First Appeal. The learned single Judge reversed the finding of the trial Judge and set aside the judgment and decree by passing the impugned judgments. Learned single Judge formulated the following questions for consideration.
A. Whether there was any written agreement for transportation of pusler and if the answer is in negative, whether there was any valid agreement/contract between the plaintiffs and the defendants?
B. Is there any documentary evidenced which can suggest that the rate was to be paid as per piece and not as per stack?
C. Is there any evidence to show that the plaintiff submitted bills for transportation of pusler separately and the same was accepted by making payment.
D. Whether from the facts and circumstances it can be gathered that the plaintiff being a Government transporter as a good gesture, agreed to transport pusler (sic) that rate of such transportation would be subsequently decided by the higher authority?
7. The learned single Judge was of the view that since Article 299(1) of the constitution are mandatory in character and contravention of this provision nullify the contract and make it void, the said provision cannot be enforced for the recovery of any amount on the basis of that contract. The learned single Judge further observed that, even assuming that the rate for transportation of pusler was reduced from Rs. 2.19 paise per piece to Rs. 1.75 paise per piece, the State Government will not be liable to pay the transportation charge which was agreed by the D.F.O. who had no authority of law to enter into a contract.
8. At the very outset we shall refer the pleadings of the parties to find out whether the existence and validity of the contract entered into by and between the plaintiff, respondent and the appellant was challenged by the defendants. In the written statement, it was categorically admitted that the appellant through Divisional Forest Officer, negotiated with the plaintiff for transportation of pusler and pursuant to that negotiation, the plaintiff agreed to transport the said pusler at the rate of Rs. 2.19 paise per piece. In Para 7 of the plaint, it was the specific case of the plaintiff that the rate offered by the plaintiff for transportation pusler i.e. at that rate of Rs. 2.19 paise per piece was reduced to Rs. 1.75 paise per piece and on the basis of that rate ad hoc payment was made. The defendant in reply to the aforesaid paragraph, in Para 11 of the written statement has in very clear terms admitted that rate of transportation was reduced in good faith and to maintain good relation and the plaintiff accepted the reduced rate.
9. It is therefore clear that the existence and the validity of the agreement for transportation of pusler was not seriously disputed by the defendants. It is true that under Article 299 of the Constitution, the State and its instrumentality enters into a contract in the name of Governor. The power to enter into a contract has been delegated to the officer of the different department by framing the rules of executive business. The rule of executive business empowers the authorities of the department to negotiate and execution of petty nature of contract by correspondence. It is not mandatory under Article 299 of the Constitution for the authorities to discharge their executive business of petty nature by complying with the requirements of Article 299 of the Constitution. From perusal of the tender notice, (Ext. A), it appears that tenders were invited for transportation of various forest produce. In the said notice, it was clearly mentioned that the fire wood was also included for which tender was invited from the prospective transporter. In the case of Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram and Ors., reported in AIR 1954 SC (Vol. 41, CN 53) page 236. The Apex Court while considering the scope and reason under Article 299 of the Constitution has held as under :—
“In the present case, there can be no doubt that the Chairman of the Board Administration acted on behalf of the Union Government and his authority to contract in that capacity was not questioned. There can equally be no doubt that both sides acted in the belief and on the assumption, which was also the fact, that the goods were intended for Government purposes, namely, amenities for the troops. The only flaw is that the contracts were not in proper form and so, because of this purely technical defect, the principal could not have been sued. But that is just the kind of case that Section 230(3), Contract Act is designed to meet.
It would, in our opinion, be disastrous to hold that the hundreds of Government officers who have daily to enter into a variety of contracts, often of a petty nature, and sometimes in an emergency, cannot contract orally of through correspondence and that every petty contract must be effected by a ponderous legal document couched in a particular form. It may be that Government will not be bound by the contract in that case, but that is a very different thing from saying that the contracts as such are void and of no effect. It only means that the principal cannot be sued but we take it there would be nothing to prevent ratification, especially if that was for the benefit of Government.
There is authority for the view that when a Government officer acts in excess of authority, Government is bound if it ratifies the excess : see – Collector of Masulipatam v. Cavaly Venkata Narrainapah, 8 Moot Ind App 529 at p. 554 (N). We accordingly hold that the contracts in question here are not void simply because the Union Government could not have been sued on them by reason of Article 299(1).”
10. In the instant case, as noticed above, pursuant to the office order issued by the defendant-respondents, the appellant transported forest produce namely Pusler and submitted bills and against those Bills, ad hoc payment was made by the defendant. It is also admitted fact that before institution of suit, a notice under Section 80, CPC was served upon the defendants and after receipt of the said notice, defendant sent a cross cheque of Rs. 16,269.74 paise on account of transportation charges which was accepted by the plaintiff as part satisfaction of the dues. The trial Court, after considering all the evidence — both oral and documentary – has recorded a finding of fact. The trial Court came to a finding that the defendants have admitted the payment of transporting charges of Pusler at the rate of Rs. 1.75 paise per piece. The learned single Judge overlooked all these facts and dismissed the suit mainly on the ground that since the contract was not entered into in compliance of the provisions of Article 299 of the Constitution, the claim of the plaintiff for recovery of the dues was not maintainable.
11. In our considered opinion, approach of the learned single Judge and the view taken by him is not, in accordance with law. Learned counsel appearing for the respondents has not brought any record to our notice in material to show that the findings recorded by the trial Court is either perverse in law or without any basis. This Court, therefore, after analysing the evidence, comes to the conclusion that the issue decided by the trial Court is, in accordance with law.
12. Taking into consideration, the entire facts of the case, we, therefore, hold
that the impugned judgment passed by the
learned single Judge, is not in accordance
with law. This appeal is, therefore, allowed
and the impugned judgment passed by the
learned single Judge is set aside and the
judgment passed by the trial Court is restored .