{"id":16337,"date":"1964-03-03T00:00:00","date_gmt":"1964-03-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/karamshi-jethabhai-somayya-vs-the-state-of-bombay-on-3-march-1964"},"modified":"2017-03-25T23:40:36","modified_gmt":"2017-03-25T18:10:36","slug":"karamshi-jethabhai-somayya-vs-the-state-of-bombay-on-3-march-1964","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/karamshi-jethabhai-somayya-vs-the-state-of-bombay-on-3-march-1964","title":{"rendered":"Karamshi Jethabhai Somayya vs The State Of Bombay on 3 March, 1964"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Karamshi Jethabhai Somayya vs The State Of Bombay on 3 March, 1964<\/div>\n
Equivalent citations: 1964 AIR 1714, \t\t 1964 SCR (6) 984<\/div>\n
Author: K Subbarao<\/div>\n
Bench: Subbarao, K.<\/div>\n
           PETITIONER:\nKARAMSHI JETHABHAI SOMAYYA\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF BOMBAY\n\nDATE OF JUDGMENT:\n03\/03\/1964\n\nBENCH:\nSUBBARAO, K.\nBENCH:\nSUBBARAO, K.\nGUPTA, K.C. DAS\nDAYAL, RAGHUBAR\n\nCITATION:\n 1964 AIR 1714\t\t  1964 SCR  (6) 984\n CITATOR INFO :\n RF\t    1980 SC1285\t (10)\n\n\nACT:\nAgreement-Concluded by Superintending Engineer-If hit by  s.\n175(3)\tof  Government\tof India  Act-Supply  of  Irrigation\nwater-Transfer\tof right-If permission needed-Government  of\nIndia  Act,  1935  (26 Geo. v. Ch. 2),\ts.  175(3).   Bombay\nIrrigation Act, 1879 (Bom. of 1879), ss. 3(6), 4, 27-30.\n\n\n\nHEADNOTE:\nOne K had obtained sanction to irrigate certain lands from a\ncanal.\t The  same year the Government proposed\t to  reserve\ncertain area along the canal as factory area.  According  to\nthe   appellant\t after\tsome  correspondence   between\t the\nGovernment  and\t K, the Superintending\tEngineer  agreed  to\nexclude\t K's  land from the factory area and  also  to\tgive\nwater perpetually on the condition that he concentrated\t all\nhis holding on the tail outlet of the canal and to take\t the\nsupply\tof  water  on volumetric basis.\t  Pursuant  to\tthat\narrangement,  K\t concentrated his holdings and\tshifted\t his\noperations  to\tthat area and he was supplied water  on\t the\nagreed\tbasis.\t Later the appellant and K  entered  into  a\npartnership  in respect of exploiting this  area.   Disputes\narose  between\tthe appellant and K which  culminated  in  a\nconsent\t decree\t whereunder the appellant  became  the\tfull\nowner  of  the land including the right to  use\t this  canal\nwater.\t When the appellant applied for the  recognition  of\nthe transfer the canal officer refused to do so.  On  appeal\nbe  was\t informed that his request for supply of  the  canal\nwater could not be granted.  The supply was stopped.   After\ngiving\tthem  statutory notice under s. 80 of  the  Code  of\nCivil  Procedure,  the appellant filed a  suit\tagainst\t the\nState for a declaration of his right to water from the canal\nand for consequential reliefs.\tThe State contested the suit\ncontending,   inter  alia,  that  there\t was  no   concluded\nagreement  between the Government and K. that even  so,\t the\nagreement  was void inasmuch as it 'did not comply with\t the\nprovisions of s. 175(3) of the Government of India Act, 1935\nand  in\t any view the appellant could not  legally  get\t the\nbenefit\t of  the  agreement  under  s.\t30  of\tthe   Bombay\nIrrigation  Act.   The\tCivil Judge held that  there  was  a\nconcluded  agreement between the Government and K,  but\t the\ntransfer  by K of the said right in favour of the  appellant\nwas in violation of the provisions of the Bombay Tenancy and\nAgricultural  Lands Act and dismissed the suit.\t On  appeal,\nthe  High  Court  held that there was  neither\ta  concluded\nagreement  between  K and the Government nor did  it  comply\nwith the requirements of law, and the appeal was  dismissed.\nOn appeal by special leave:\nHeld-  (i)  The\t documents  in the  instant  case  record  a\nconcluded  agreement  between the  Superintendent  Engineer,\nacting on the order of\n 985\nthe Minister of Public Works Department, on the one hand and\nK  on  the other agreeing to supply water so long as  K\t had\ncane cultivation in the concentrated area.\n(ii) The  provisions  of Bombay Irrigation  Act\t establishes\nthat  every person desiring to have supply of water  from  a\ncanal  shall  apply in the prescribed manner  to  the  Canal\nOfficer\t and  that person to whom water is  supplied  cannot\ntransfer his right to another without the permission of\t the\nCanal Officer.\tBut if the land in respect whereof the water\nis supplied is transferred, the agreement for the supply  of\nwater also shall be presumed to have been transferred  along\nwith it.\n (iii) The conduct on the part of the Government as well  as\nthat  on  the part of K and the appellant  also\t establishes\nthat the agreement was not under the Bombay Irrigation\tAct,\nbut between the Government and K.\n(iv) The agreement is void, as it has not complied with\t the\nprovisions of s. 175(3) of the Government of India Act.\t The\ncontract  was not either entered into by the person  legally\nauthorised  by\tthe Government to do so or expressed  to  be\nmade in the name of Governor.\nSeth Bikhraj Jaipurja v. Union of India,<\/a> [1962] 2 S.C.R. 860\nand  New Marine Coal Co. v. Union of India,<\/a> [1964] 2  S.C.R.\n859, referred to.\nUnion  of  India  v.  Rallia Ram,  A.I.R.<\/a>  1963\t S.C.  1685,\nreferred to.\nSemble:\t  While\t it  is\t the duty of a private\tparty  to  a\nlitigation  to\tPlace all the relevant\tmatters\t before\t the\ncourt, a higher responsibility rests upon the Government not\nto withhold such document from the Court.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 552 of 1962.
\nAppeal\tby special leave from the judgment and decree  dated
\nAugust\t22, 1960 of the former Bombay High Court  in  appeal
\nNo. 432 of 1954 from Original Decree.\n<\/p>\n
M.   K.\t Nambiar,  J.  B.   Dadachanji,\t O.  C.\t Mathur\t and
\nRavinder Narain, for the appellant.\n<\/p>\n
D.   R.\t Prem, B. R. G. K. Achar and R. H. Dhebar,  for\t the
\nrespondent.\n<\/p>\n
March 3, 1964.\tThe Judgment of the Court was delivered by
\nSUBBA  RAO,  J.-This  appeal by special\t leave\tis  directed
\nagainst the judgment and decree of the High Court of  Bombay
\nconfirming those of the Civil Judge, Senior Division,
\n986<\/span>
\nAhmednagar,  Jr,, Special Civil Suit No. 6 of 1953 filed  by
\nthe appellant against the State of Bombay for a\t declaration
\nof  his\t right to water from a particular  source,  and\t for
\nconsequential reliefs.\n<\/p>\n
The appellant is the owner of Shankar Tukaram Karale  Rampur
\nFarm, situated at the tail-outlet of the Godavari Right Bank
\nCanal  Distributary No. 17, The lands comprised in the\tsaid
\nFarm   originally  belonged  to\t Shankar   Tukaram   Karale,
\nhereinafter called Karale.  In the year 1935 the said Karale
\nhad  a\tfarm for raising sugarcane consisting  of  35  acres
\nowned  by him and about 65 acres of land taken on  lease  by
\nhim  in\t Ahmednagar  District.\t He  obtained  sanction\t  to
\nirrigate  his  lands on the outlet No. 17  of  the  Godavari
\nRight Bank Canal.  In or about the same year the  Government
\nof  Bombay proposed to reserve certain area along  the\tsaid
\nDistributary   Canal   as  “factory   area”.\tAfter\tsome
\ncorrespondence between the said karale and the Government of
\nBombay,\t it  was the appellant’s  case,\t the  Superintending
\nEngineer agreed on July 14, 1939, to exclude Karale’s  lands
\nfrom the factory area and also to give him water perpetually
\non  condition that he concentrated all his holdings  on\t the
\ntail outlet of Distributary No. 17 and to take the supply of
\nwater  on volumetric basis.  Pursuant to  that\tarrangement,
\nKarale, by purchase or otherwise, concentrated his  holdings
\nand shifted his operations to that area and he was  supplied
\nwater  on  the agreed basis.  In or about  April  1948,\t the
\nappellant   and\t Karale\t entered  into\ta  partnership\t for
\nexporting the said area whereunder the appellant had  three-
\nfourths\t share\tand the said Karale  had  one-fourth  share.
\nLater on disputes arose between the appellant and Karale  in
\nrespect\t of  the partnership which culminated in  a  consent
\ndecree\tdated  February 7, 1951,  whereunder  the  appellant
\nbecame\tthe full owner of the partnership business with\t all
\nits  assets  and liabilities, including the  lands  and\t the
\ncompact\t block and the right to use the canal  water.\tWhen
\nthe  appellant applied for the recognition of the  transfer,
\nthe  Canal  Officer  refused to do so.\tOn  appeal,  he\t was
\ninformed  that his request for supply of canal\twater  could
\nnot  be\t granted.  From April 1952 the supply  was  stopped.
\nAfter giving the statutory notice under
\n 987<\/span>
\ns.   80 of the Code of Civil Procedure, the appellant  filed
\nSpecial\t Civil Suit No. 6 of 1953 in the Court of the  Civil
\nJudge,\tSenior\tDivision, Ahmednagar, against the  State  of
\nBombay for a declaration that the plaintiff was entitled  to
\nthe supply and use of water from the tail outlet of  Distri-
\nbutary\tNo. 17 of the Canal to irrigate 100 acres  of  basic
\ncane land in the concentrated area described in Schedule  11
\nat  the\t rates\tprescribed  by\tthe  Government\t under\t the
\nIrrigation   Act  on  a\t volumetric  basis,   for   specific
\nperformance  of the aforesaid agreement between\t Karale\t and
\nthe  Government,  for  recovery of damages,  and  for  other
\nincidental  reliefs.  The State of Bombay filed\t a  written-
\nstatement   contending,\t inter\talia,  that  there  was\t  no
\nconcluded  agreement  between  the  Government\tand   Karale
\nembodying the alleged terms stated in the plaint, that\teven
\nif  there was such an agreement, it was void inasmuch as  it
\ndid  not  comply  with the provisions of s.  175(3)  of\t the
\nGovernment  of India Act, 1935, and that, in any  view,\t the
\nappellant could not legally get the benefit of the agreement
\nunder  s.  30 of the Bombay Irrigation Act,  1879.   On\t the
\npleadings as many as seven issues were framed reflecting the
\ncontentions  of the parties.  The learned Civil\t Judge\theld
\nthat there was a concluded agreement between the  Government
\nand  Karale on the, terms alleged by the appellant, but\t the
\ntransfer  by  Karale  of the said right\t in  favour  of\t the
\nappellant  was in violation of the provisions of the  Bombay
\nTenancy\t and Agricultural Lands Act, 1948,  and,  therefore,
\nthere  was no legal transfer of Karale’s right of  water  in
\nfavour\tof  the appellant.  In that view, he  dismissed\t the
\nsuit.  On appeal, the High Court held that there was neither
\na concluded agreement between Karale and the Government\t nor
\ndid  it comply with the requirements of law.  In the  result
\nthe appeal was dismissed.  Hence the present appeal.
\nThe arguments of Mr. M. K. Nambiar, learned counsel for\t the
\nappellant, may be summarized under the following heads : (1)
\nThere  was  a  concluded agreement between  Karale  and\t the
\nstatutory authority, the Canal Officer, whereunder the\tsaid
\nKarale\twas  entitled  ‘to get water to\t his  compact  block
\npermanently  from the tail outlet of Distributary No. 17  of
\nthe Godavari Right Bank Canal so long
\n988<\/span>
\nas he was willing to pay the rates for such supply on  volu-
\nmetric\tbasis.\t(2) As under the compromise  decree  between
\nKarale\tand the appellant the said block of land was  trans-
\nferred\tto the appellant, the right under the agreement\t for
\nthe supply of canal water was also transferred to him  under
\ns.  30 of the Bombay Irrigation Act, 1879 (Bombay Act No.  7
\nof 1879), hereinafter called the Act. (3) Section 175(3)  of
\nthe  Government\t of India Act, 1935, does not apply  to\t the
\nagreement  in question for the following reasons : (i)\tonce
\nthe  Legislature covers any matter by the enactment  of\t any
\nstatute, any functional power assigned to the Government  or
\nany  other authority under the said statute  is\t exercisable
\nonly  under  that  statute and in virtue  of  the  statutory
\nauthority and not in the exercise of the executive authority
\nof  the\t Province  within the meaning of s.  175(3)  of\t the
\nGovernment     of  India  Act,\t1935;  (ii)  the   agreement
\ncontemplated by s.  30\tof the Act is an  agreement  entered
\ninto under the Act  by a statutory authority in pursuance of
\na  statutory  power  with the  statutory  consequences\tand,
\ntherefore, such an agreement is outside the provisions of s.
\n175(3) of the  Government of India Act, 1935; and (iii)\t    that
\napart,\tthe expression “agreement” in s. 30 of the Act\tdoes
\nnot mean a formal contract, but only a sanction,  permission
\nor  consent  given  by the Canal  Officer  pursuant  to\t the
\nauthority  given to him under the Act, and, therefore,\tsuch
\nsanction, permission or consent is not a contract within the
\nmeaning of s. 175(3) of the (Government of India Act, 1935.
\nThis  appeal raises a question a far-reaching importance  as
\nregards\t the scope of the executive authority  exercised  by
\nthe  Governor under the Government of India Act, 1935;\tbut,
\nwe  are relieved of the duty to express our opinion on\tthat
\nquestion  in  this appeal in view of our  finding  that\t the
\nagreement in question was arrived at outside the  provisions
\nof  the\t Act and, therefore, it squarely  falls\t within\t the
\nscope of s. 175(3) of the Government of India Act, 1935.
\nWe  shall  at  the  outset address  ourselves  to  the\tsaid
\nagreement,  namely,  (i)  who are the parties  to  the\tsaid
\nagreement; and (ii) what are the terms thereof?\n<\/p>\n
 989<\/span><\/p>\n
When  the suit was pending decision of the Civil Court,\t the
\nappellant  filed  an application therein for  directing\t the
\nGovernment  to produce, among others, the applications\tmade
\nto the Government from time to time by Karale in respect  of
\nsupply of water to his farm in the year 1935 and  subsequent
\nthereto\t and  the office copies of the replies sent  to\t the
\nsaid  applications,  the Government  documents\tand  papers,
\nwater-bills  and  the records in respect _of the  supply  of
\nwater  to the land belonging to Karale from the\t year  1935.
\nand  the correspondence that passed between karale and’\t the
\nGovernment between 1935 and 1939 in respect of consolidation
\nof  his lands.\tObviously these papers were required by\t the
\nappellant  for\testablishing  the  case\t that  there  was  a
\nconcluded agreement between Karale and the Government or the
\nCanal-officer.\tBut, unfortunately, the said documents\twere
\nnot produced.  It is not clear from the record why and under
\nwhat  circumstances  the Government withheld  the  documents
\nfrom the court, but in appeal the High Court in its judgment
\nremarked:  “In the trial Court no attempt was made  to\thave
\nthis  endorsement  produced in Court which could  have\tbeen
\ndone  if the plaintiffs Counsel had so desired by  a  proper
\napplication to the Court”.  But the High Court felt that  it
\nwas absolutely necessary in the interests of justice to call
\nupon the learned Government Pleader to produce the file with
\nreference   to\t that\tparticular   endorsement,    namely,
\nEndorsement  No.  3033\/36-1  dated  28th  April\t 1939,\t and
\ndirected  him  to  do so. It disposed of  the  appeal  after
\nreceiving the said relevant document.  Though the High Court
\nthrew  the blame for this lapse on the appellant, we do\t not
\nthink  there was any justification for it.  Apart  from\t the
\nfact that the appellant asked for the production of all\t the
\nrelevant  documents, the Government, being the defendant  in
\nthis  case, should have produced the documents\trelevant  to
\nthe  question  raised.\tWhile it is the duty  of  a  private
\nparty  to  a litigation to place all  the  relevant  matters
\nbefore\tthe  Court, a higher responsibility rests  upon\t the
\nGovernment  not to withhold such documents from\t the  court.
\nBe  that  at  it may, the documents  were  finally  produced
\nbefore the court, and the High Court considered the same  in
\narriving  at its conclusion.  Though Mr.  Nambiar  suggested
\nthat the said documents
\n990<\/span>
\nrelated\t to  some other party, as we will  indicate  in\t the
\ncourse\tof the judgment, the said file dealt also  with\t the
\nagreement  alleged to have been entered into between  Karale
\nand the Government.\n<\/p>\n
Exhibits  Nos.\t D-67 and D-68 are the\tdocuments  on  which
\nstrong\treliance  is  placed on\t behalf\t of  the  appellant.
\nExhibit D-67 reads thus :\n<\/p>\n
Below  Government endorsement No. 3033\/36-1 dated  the\t28th
\nApril 1939:\n<\/p>\n
\t\t      No. 4223 of 1939
\n\t\t  Poona, 14th July, 1939.\n<\/p>\n
Returned with compliments.\n<\/p>\n
\t      2.    The\t applicant has already been  allowed
\n\t      to continue his present cane irrigation of  93
\n\t      acres on outlets 2 and Tail of Distributary 17
\n\t      of the Godavari Right Bank Canal for one\tyear
\n\t      from  15-2-1939 pending consideration  of\t his
\n\t      case  in detail, in relation to the demand  of
\n\t      the Sugar Company formed by Messrs.  Jagtap  &
\n\t      Khilari  on  this canal and lately  named\t the
\n\t      “Changdeo Sugar Factory”.\n<\/p>\n
\t      3.    In\tview  however of the  orders  issued
\n\t      verbally by
\n\t      the Hon’ble Minister, Public Works  Department
\n\t      on 12-7-1939 the applicant is being allowed to
\n\t      concentrate  all\this cane irrigation  to\t the
\n\t      extent  of 100 acres on the tail outlet of  Dy
\n\t      17  of the Godavari Right Bank Canal by  15-2-
\n\t      1940  and to continue it permanently there  if
\n\t      he so wishes provided he agrees to take  water
\n\t      by measurement on volumetric basis of 112″  at
\n\t      the  outlet head and pay the water rates\tthat
\n\t      may  hereafter be sanctioned by Government  in
\n\t      this   respect.\tThe  applicant\t has   since
\n\t      signified his willingness to these conditions.
\n\t      He  will\tbe charged, till then  on  the\tarea
\n\t      basis as is done at present.\n<\/p>\n
\t      4.    The\t area thus allowed to the  applicant
\n\t      will  be excluded from the Sugar Factory\tarea
\n\t      while
\n991<\/span>
\nfixing\tthe boundaries of the allotted factory area  of\t the
\n“Changdeo  Sugar  Factory”  on\tthis  canal.   D.A.  Marathi
\npetition.\n<\/p>\n
(Sd.) W. H. E. GARROD, Superintending Engineer, D.I.C.
\nCopy,  with  compliments, to the Executive  Engineer,  Nasik
\nIrrigation  Division,  for  information\t and  guidance\twith
\nreference to the correspondence ending with this office\t No.
\n3686 dated 22-6-1939.\n<\/p>\n
Exhibit\t D-68  is  a letter written  by\t the  Superintending
\nEngineer to Karale.  It reads :\n<\/p>\n
No. 4224 of 1939 Poona, 14th July 1939.\n<\/p>\n
TO
\nShankar Tukaram Karale, Esquire, at Belapur.
\nContinuation  of cane irrigation on Distributary No.  17  of
\nthe Godavari Right Bank Canal.\n<\/p>\n
Dear Sir,
\nIn  continuation  of this office No. 3686  dated  23rd\tJune
\n1939,  I  have\tto  inform you\tthat  under  orders  of\t the
\nHonourable  Minister, Public Works Department, you  will  be
\nallowed\t to irrigate came to the extent of 100 acres on\t the
\ntail  outlet  of Distributory No. 17 of the  Godavari  Right
\nBank Canal permanently, so long as you may wish to do so, on
\ncondition that you agree to take canal water by\t measurement
\non volumetric basis of 112″ depth at the outlet head at\t the
\nrate which may be sanctioned by Government hereafter.
\n(2)  This  will apply to new cane plantation from  15-2-1940
\nonwards.   Till then, you may continue your cane  irrigation
\non outlets 2 and tail as at present.\n<\/p>\n
Yours faithfully, (Sd.) W. H. E. Garrod,
\nSuperintending Engineer, Deccan Irrigation Circle.\n<\/p>\n
992<\/span><\/p>\n
Copy,  with  compliments, to the Executive  Engineer,  Nasik
\nIrrigation Division, for information.\n<\/p>\n
A  fair\t reading of these two documents leaves no  room\t for
\ndoubt  that  a firm agreement was entered into\tbetween\t the
\nGovernment  and Karale in respect of the supply of water  to
\nhis  land to the extent of 100 acres on the tail  outlet  of
\nDistributary No. 17 of the Godavari Right Bank Canal.  These
\ntwo  letters  show that there  was  previous  correspondence
\nbetween\t the Engineering Department and Karale and that\t the
\nMinister  of Public Works Department intervened and  settled
\nthe  terms  of\tthe  agreement,\t and  that  the\t terms\twere
\ncommunicated to Karale, who accepted the same.\tThe terms of
\nthe  agreement were, (i) Karale was allowed  to\t concentrate
\nall  his cane irrigation to the extent of 100 acres  on\t the
\ntail  outlet  of Distributary No. 17 of the  Godavari  Right
\nBank  Canal  by\t February  15,\t1940,  and  to\tcontinue  it
\npermanently,  if  he so wished; (ii) Karale agreed  to\ttake
\nwater  by  measurement on volumetric basis of  112″  at\t the
\noutlet head and to pay water rates that might thereafter  be
\nsanctioned by the Government in that respect; (iii) the said
\narea  will  be excluded from the sugar\tfactory\t area  while
\nfixing the boundaries of the allotted sugar factory area  of
\nChangdeo Sugar Factory; and (iv) the terms will apply to new
\ncane plantation from February 15, 1940 onwards.\t It is\tsaid
\nthat  the word “permanently” refers to cultivation, but\t not
\nto  supply of water.  This interpretation makes\t the  entire
\ncontract  meaningless.\tSugar cultivation can be  done\tonly
\nwith  the permission of the department, for  sugarcane\tcrop
\ncannot\tbe  raised without supply of water from\t the  canal.
\nWhen   the   Superintending  Engineer  allowed\t Karale\t  to
\nconcentrate  all,  his\tcane irrigation\t in  the  said\tarea
\npermanently  on condition he paid the prescribed  rates,  it
\nwas necessarily implied in the said agreement that he  would
\nsupply\twater  permanently,  if the said  rates\t were  paid.
\nCultivation and supply of water are so inextricably connect-
\ned  that  one  cannot  be separated  from  the\tother.\t The
\npermission to have cane irrigation permanently on the  basis
\nof a particular rate implies that the supply for  irrigation
\nis co-terminous with irrigation.  In this view we must\thold
\nthat Exs.  D-67 and D-68, read together, record a concluded
\n\t\t\t    993<\/span>
\nagreement between the Superintending Engineer, acting on the
\norders\tof the Minister of Public Works Department,  on\t the
\none  hand and Karale on the other, agreeing to supply  water
\nso  long  as  Karale  had cane cultivation  in\tthe  con-  s
\ncentrated  area.  The other documents, read along  with\t the
\ndocuments  filed for the first time in the High Court,\talso
\ndo not detract from this conclusion.  Exhibit D-78. which is
\nnot dated, was the application filed by Karale to the  Chief
\nMinister, P.W.D. and Irrigation Department, Bombay.  Therein
\nKarale\trepresented to the Chief Engineer that\tDistributary
\nNo.  17\t was permanently closed prior to 1935, that  he\t was
\nresponsible for starting the said Distributary by commencing
\nplantation. that the “Prime Minister’s” consent gave him  an
\nassurance that while declaring the factory area, the area of
\nthe previous gardeners would be excluded from the said area,
\nthat  he  had invested a capital of about Rs.  75,000\/-\t for
\nraising\t the  plantation and that in  the  circumstances  he
\nprayed\tthat  while  declaring the factory  area,  his\tland
\nshould\t be  excluded  therefrom.   This   application\t was
\nconsidered  by the concerned office under G.L.\tNo.  3033\/36
\ndated April 27, 1939.  In the note put up by the office\t the
\ncontents   of\tthe  ;said   application   are\t summarized.
\nThereafter the following note is found :\n<\/p>\n
\t      “With  reference to the H.M.R.D.’s note  dated
\n\t      3-4-1939\tit may be observed  that  Government
\n\t      has  already  accepted the principle  that  no
\n\t      ordinary\tirrigators  should  be\tallowed\t  to
\n\t      operate in the sugar factory area.  Under\t the
\n\t      general  orders  issued on the  subject  owner
\n\t      irrigators  are  to  be  allowed\tto  continue
\n\t      irrigation,  on  yearly  basis.\tIt  is\t for
\n\t      consideration whether this fact may be brought
\n\t      to the notice of the H.M.R.D. If it is decided
\n\t      to  do so the papers may be submitted  to\t the
\n\t      H.M., P.W.D. and the H.M.R.D. after the drafts
\n\t      put up are issued.”\n<\/p><\/blockquote>\n
The Revenue Minister accepted the endorsement.\tThis is only
\nan office note and the suggestion that the irrigators should
\nbe  allowed  to\t continue on the yearly basis  was  only  to
\nprevent\t further  applications after the  factory  area\t was
\ndeclared.  This endorsement had nothing to do with the\t134-
\n159 S.C.-63
\n994<\/span>
\nexclusion  of  any particular area from\t the  sugar  factory
\narea.\tThe endorsement “should see” below  the\t endorsement
\nmade by the Revenue Minister perhaps meant that the  papers,
\nshould be submitted to the Minister concerned.\tExhibit D-79
\nis  a  letter  written\tby  the\t Deputy\t Secretary  to\t the
\nGovernment  of Bombay to Changdeo Sugar Mills.\tThis  letter
\nalso refers to the office endorsement No. 3033\/36-1.  Though
\nwe  are not directly concerned with this letter, it  may  be
\nmentioned  that the application of Karale is connected\twith
\nthe proposal to declare certain area as factory area and  to
\ngive water to Changdeo Sugar Factory in respect of the lands
\nin  that area, for his application was to exclude  his\tarea
\nfrom  the  factory area.  Both the  matters  obviously\twere
\ndealt  together.   Exhibit D-79A is again part of  the\tfile
\nrelevant to the factory area.  But a reference is made again
\nto  the office No. 3033\/36-1 and in the same  file  Karale’s
\nletter\tis also noticed.  Exhibit D-81 is an endorsement  at
\npage  133  of  the  same file, which  also  deals  with\t the
\nsubject’sugar factories”.  It contains a copy of the  letter
\nwritten\t to  the Superintending Engineer requesting  him  to
\nsubmit at a very early date a draft agreement for the supply
\nof  water to the company’s area on the Godavari\t Right\tBank
\nCanal on the terms embodied in the margin thereof.   Exhibit
\nD-82  is  also another endorsement on the  same\t file.\t The
\nendorsement reads thus :\n<\/p>\n
Endorsement at 191.\n<\/p>\n
\t\t\t  3033\/36
\n\t\t\t    1114<\/span>
\nDiscussed with the Secy.\n<\/p>\n
In  addition  to his written requests, Mr. Karale  had\talso
\ninterviewed  the late H.M.R.D. During the discussions,\tH.M.
\nhad  made  it clear that Mr. Karale can only be\t allowed  to
\ncontinue if he was willing to consolidate his holdings in an
\nindependent  block so that the Co.’s cultivation be  carried
\non undisturbed.\n<\/p>\n
This  is not recorded on this file as H.M. did not pass\t any
\norders in Bombay or at the Secretariat but instructed
\n\t\t\t    995<\/span>
\n(Presumably  after discussion with Mr. Sule) the  S.E.D.I.C.
\nin the matter.\n<\/p>\n
Please\tsee P. 107 ante.  That Mr. Karale’s cane has  to  be
\nshifted\t to  one  block is clear from the  wordings  of\t the
\nS.E.S. letter.\t“The applicant is allowed to concentrate all
\nhis cane…….. on the tail outlet of D. 17”.\tThis is\t the
\nonly record of the orders passed.\n<\/p>\n
Moreover  Mr. Karale is to have his supply on  a  volumetric
\nbasis  as  soon\t as that can be arranged  for.\t This  would
\nnecessitate the concentration of his cane areas.”
\nThis  endorsement  notices the contents of  Ex.\t  D-67\tand,
\ntherefore, it must have been made only after April 28, 1939.
\nThe  said documents do not carry the matter  further.\tThey
\nonly show what we have already noticed, namely, the  Govern-
\nment  wanted to create a factory area and that Karale  filed
\nan  application\t to have his area excluded  therefrom.\t The
\nnotings\t of the department are not in any  way\tinconsistent
\neither with Ex.\t D-67 or with Ex.  D-68.  Exhibits D-67\t and
\nD-68 refer to Office No. 3686 dated June 23, 1939, and\tthat
\nletter\tmust have been in some other file and that file\t was
\nnot  produced  and, if produced, it might have\tthrown\tsome
\nmore  light.   In the circumstances we must proceed  on\t the
\nbasis that Exhibits D-67 and D-68 embodied the terms of\t the
\nagreement  entered  into between the Government\t and  Karale
\npursuant  to the application, Ex.  D-78, made by him to\t the
\nChief  Engineer, P.W.D. We have already held that  the\tsaid
\ndocuments   record  the\t completed  agreement  between\t the
\nGovernment  and Karale in respect of supply of water to\t his
\nand.\n<\/p>\n
Even  so, the question arises whether the said agreement  is
\nenforceable,  if it has not complied with the provisions  of
\ns.   175(3)  of\t the  Government of India  Act,\t 1935.\t The
\npremises on which Mr. Nambiar built his argument is that the
\nsaid  agreement was entered into between the  parties  under
\nthe  provisions\t of the Act.  If it was not made  under\t the
\nprovisions  of the Act, but outside the Act, the  foundation
\nfor  this  argument would disappear.  We  would,  therefore.
\nproceed to consider now whether the said agreement was under
\nthe provision of the Act.\n<\/p>\n
996<\/span><\/p>\n
The relevant provisions of the Act may now be read.  Section
\n3(6)  defines “Canal-Officer” to mean any  officer  lawfully
\nappointed or invested with powers under section 4. Under  s.
\n4,  such  officer can exercise powers and  discharge  duties
\nthat may be assigned to him by the State Government.  It  is
\nsaid  that  the\t Superintending\t Engineer  was\tone  of\t the
\nofficers so appointed by the Government and that the  powers
\nunder  ss. 27 to 30 of the Act were assigned to him.   Under
\ns. 27, “Every person desiring to have a supply of water from
\na canal shall submit a written application to that effect to
\na Canal-Officer duly empowered to receive such applications,
\nin  such terms as shall from time to time be  prescribed  by
\nthe  State Government in this behalf”.\tUnder s.  29,  “When
\ncanal-water  is supplied for the irrigation of one  or\tmore
\ncrops only the permission to use such water shall be held to
\ncontinue  only\tuntil  such  crop or  crops  shall  come  to
\nmaturity,  and to apply only to such crop or crops”.   Under
\ns. 30, “Every agreement for the supply of canal-water to any
\nland,\tbuilding  or  other  immovable\tproperty  shall\t  be
\ntransferable  therewith, and shall be presumed to have\tbeen
\nso transferred whenever a transfer of such land, building or
\nthe  other  immovable property takes place.” But  under\t the
\nsecond limb of the section, “except in the case of any\tsuch
\nagreement as aforesaid, no person entitled to use the  water
\nof any canal, shall sell or sub-let, or otherwise  transfer,
\nthis  right to such use without the permission of  a  Canal-
\nOfficer\t duly  empowered  to  grant  such  permission”.\t   A
\ncombined reading of these provisions establishes that  every
\nperson\tdesiring to have supply of water from a canal  shall
\napply in the prescribed manner to the Canal-Officer and that
\nthe  per–,on to whom water is supplied cannot transfer\t his
\nright  to  another  without the\t permission  of\t the  Canal-
\nOfficer.   But if the land in respect whereof the  water  is
\nsupplied  is  transferred, the agreement for the  supply  of
\nwater also shall be presumed to have been transferred  along
\nwith it.  The expression “agreement” in s. 30 of the Act, it
\nis  contended, does not connote a contract as understood  in
\nlaw,  but only a convenient mode of expression\tto  indicate
\nthe sanction or permission given by the Canal-Officer.\tThis
\nmeaning\t of  the  expression “agreement”  is  sought  to  be
\nsupported  by a reference to the Bombay Canal  Rules,  1934,
\nmade in
\n 997<\/span>
\nexercise  of  the powers conferred on the  State  Government
\nunder s. 70(e) of the Act.  Part 11 of the Rules deals\twith
\nsupply\t of   water.   It  provides  for   the\t filing\t  of
\napplications, the manner of their disposal and. the  persons
\nentitled to dispose of the same, and also the mode of supply
\nof  water  for cultivation of different\t crops.\t  The  forms
\nprescribed  columns  under different heads  for\t giving\t the
\nnecessary  particulars.\t The forms contain the\tinstructions
\nas  well as conditions on which permission will be  granted.
\nRule 7 says that an application for supply of water for\t the
\nirrigation  of\tland  for  any\tperiod\tmay  be\t sanctioned,
\nindicating thereby that there is no maximum period fixed for
\nwhich application for supply of water can be made.  Assuming
\nwithout\t deciding  that “agreement” under s. 30 of  the\t Act
\nmeans  only sanction, the Act and the Rules provide  for  an
\napplication  to\t be  made to the  Executive  Engineer,\twho,
\nsubject\t to.  the  Rules, can give the\tsanction.   Rule  36
\nprovides  for  an  appeal from the order  of  the  Executive
\nEngineer  to the Superintending Engineer, and from  that  of
\nthe  Executive Engineer’s order under r. 18 or r. 19 to\t the
\nCollector.   But there is no provision either in the Act  or
\nin  the Rules made thereunder enabling any party to make  an
\napplication  to the Chief Engineer to exclude his land\tfrom
\nfactory area, and to give him supply of water for irrigating
\nthe  said land permanently, or a power to the Government  to
\nenter into an agreement or make an order in respect of\tsuch
\nan  application.   Such an order or  agreement\tis  entirely
\noutside\t the scope of the Act or the Rules made\t thereunder.
\nWe  are not called upon in this case to decide\twhether\t the
\nGovernment has any such power outside the Act; but, we shall
\nassume\tfor the purpose of this case that it has such  power
\nand  to\t proceed  to consider the legal\t arguments  on\tthat
\nbasis.\n<\/p>\n
The documentary evidence adduced in this case, which we have
\nalready considered, discloses that the application was\tmade
\nto  the\t Chief Engineer; that the  Government,\tthrough\t the
\nrelevant  ministry, considered the application and  that  on
\nthe  instructions  given  by  the  concerned  Minister,\t the
\nSuperintending\tEngineer  wrote\t the  letter  Ex.   D-68  to
\nKarale.\t  It  was, therefore, in effect\t and  substance,  an
\nagreement entered into between the Government and Karale.\n<\/p>\n
998<\/span><\/p>\n
Such  an agreement fell outside the provisions of  the\tAct.
\nThe parties to the agreement also understood that it was  an
\nagreement  made\t between  the Government  and  Karale.\t The
\nGovernment in or about February 1942 sent a draft  agreement
\nto Karale for execution regarding the supply of canal  water
\nto  his\t farm,\tbut  the said Karale  did  not\texecute\t the
\nagreement.   The parties did not agree in regard to some  of
\nthe  conditions\t found\tin the draft,  but  Karale  did\t not
\ncontest the position of the Government that a formal  agree-
\nment in compliance with the provisions of law was necessary.
\nAgain  during  the continuance of  the\tpartnership  between
\nKarale\tand the appellant, in or about 1950, the  Government
\nof  Bombay sent another draft agreement to the\tsaid  Karale
\nfor  execution.\t  Though  Karale signed\t the  agreement,  he
\ninsisted upon a proviso that the agreement should be without
\nprejudice  to  the permission already granted to  him.\t The
\nBombay\tGovernment did not execute the said  agreement.\t  So
\ntoo,   Karale\tand  the  appellant   were   making   yearly
\napplications  under the Act and getting supply of  water  to
\ntheir  plantation.  That procedure was\tpresumably  followed
\nbecause,  though there was an agreement between\t Karale\t and
\nthe Government, for one reason or other, a formal  document,
\nthough\tintended  to be executed, was  not  executed.\tThis
\nconduct on the part of the Government as well as that on the
\npart  of Karale and the appellant also establishes that\t the
\nagreement was not under the Act, but between the  Government
\nof  Bombay and Karale.\tIf so, it follows that the  contract
\nentered\t into  between\tthe  Government\t and  Karale  was  a
\ncontract made in the exercise of the executive authority  of
\nthe  Province  within  the  meaning  of\t s.  175(3)  of\t the
\nGovernment  of\tIndia Act, 1935.  The relevant\tpart  of  s.
\n175(3) of the Government of India Act, 1935, read :\n<\/p>\n
\t      “All  contracts  made in the exercise  of\t the
\n\t      executive\t authority  of a Province  shall  be
\n\t      expressed\t to be made by the Governor  of\t the
\n\t      Province …… and all such contracts and all
\n\t      assurances of property made in the exercise of
\n\t      that authority shall be executed on behalf  of
\n\t      the  Governor  by\t such persons  and  in\tsuch
\n\t      manner as he may direct or authorise.\n<\/p><\/blockquote>\n
999<\/span><\/p>\n
This  section laid down two conditions for the\tvalidity  of
\nsuch  a contract, namely, (i) it should be expressed  to  be
\nmade by the Governor of the Province, and (ii) it should  be
\nexecuted  on behalf of the Governor by such persons  and  in
\nsuch  manner  as  he might direct  or  authorize.   We\thave
\nnothing on the record to disclose whether the Superintending
\nEngineer,  though  he acted under oral instructions  of\t the
\nMinister,  was authorized by the Governor or under  relevant
\nrules  to enter into such a contract.  That apart,  even  if
\nExs.  D-67 and D-68 together were treated as forming part of
\na  contract entered into between the Government and  Karale,
\ncan  it be said that the said contract was expressed  to  be
\nmade  in  the name of the Governor?  Ex facie it  cannot  be
\nsaid  so.  But it is contended that on a  liberal  construc-
\ntion,  which we should adopt in a case where the  Government
\nis trying to go back on its solemn promise, such a formality
\ncan  easily  be\t read into the said  documents.\t  Before  we
\nconstrue  the  said  two documents  in\torder  to  ascertain
\nwhether\t such a formality has been complied with or not,  it
\nwould be convenient to notice some of the decisions of\tthis
\nCourt.\t The  question of construction of s. 175(3)  of\t the
\nGovernment  of India Act, 1935, directly arose for  decision
\nin  Seth Bikhraj Jaipuria v. Union of India<\/a>(1).\t There,\t the
\nDivisional  Superintendent,  East  Indian  Railway,   placed
\ncertain\t orders\t with  the  appellant  for  the\t supply\t  of
\nfoodgrains  for\t the  employees of the\tsaid  Railway.\t The
\norders\twere  not expressed to be made in the  name  of\t the
\nGovernor  -General  and was not executed on  behalf  of\t the
\nGovernor General as required by s. 175(3) of the  Government
\nof  India  Act, 1935.  They were signed\t by  the  Divisional
\nSuperintendent either in his own hand or in the hand of\t his
\nPersonal Assistant.  This Court held that the contracts, not
\nhaving\tbeen expressed to be entered into by the  ,Governor-
\nGeneral\t and  not having been executed on his  behalf,\twere
\nvoid.\tThis Court held that the provisions of s. 175(3)  of
\nthe  Government\t of  India Act, 1935,  were  mandatory\tand,
\ntherefore,  the\t contracts  were void.\t This  decision\t was
\nfollowed  by this Court in New Marine Coal Co. v. The  Union
\nof India<\/a>(2).  Reliance is placed by the
\n(1) [1962] 2 C.R. 880.\t       (2) [1964] 2 S.C.R. 859.\n<\/p>\n
1000<\/span><\/p>\n
learned\t counsel for the appellant on the decision  of\tthis
\nCourt in Union of India v. Rallia Ram<\/a> (1) in support of\t his
\ncontention  that though ex facie Exs.  D-67 and D-68 do\t not
\nshow that the contract was expressed to be made in the\tname
\nof  the Governor, the said fact could be inferred  from\t the
\nrecitals.   There, the goods offered to be sold belonged  to
\nthe Government of India.  A tender notice was issued by\t the
\nGovernment  of India, Department of Food (Division 111),  in
\nthe  name  of the Chief Director of  Purchases.\t  The  Chief
\nDirector  of Purchases agreed to sell the goods\t on  certain
\nconditions  to the respondent and incorporated them  in\t the
\nacceptance note, which was also headed “Government of India,
\nDepartment of Food (Division III), New Delhi”.\tThe  general
\nconditions  of\tcontract, which accompanied  the  letter  of
\nacceptance,  defined  Government as  meaning  the  Governor-
\nGeneral for India in Council.  On the said facts this  Court
\nheld that the correspondence between the parties  ultimately
\nresulting  in  the acceptance note amounted  to\t a  contract
\nexpressed  to be made by the Government and,  therefore,  by
\nthe  Governor-General, “because it was the  Governor-General
\nwho invited tenders through the Chief Director of  Purchases
\nand  it\t was  the Governor-General who,\t through  the  Chief
\nDirector of Purchases, accepted the tender of the respondent
\nsubject\t to the conditions prescribed therein”.\t  Though  in
\nthe  acceptance\t note it was not expressly stated  that\t the
\ncontract was executed on behalf of the Governor-General,  on
\na fair reading of the contents of the letter in the light of
\nthe obligations undertaken thereunder, it was held that\t the
\ncontract  was  executed on behalf of  the  Governor-General.
\nThis decision does not depart from the principle accepted in
\nSeth  Bikhraj Jaipuria’s case(2).  On a fair reading of\t the
\ncorrespondence\tthis Court construed that the  contract\t was
\nentered into on behalf of the Governor-General and expressed
\nto be made in his name.\t Can it be said that in the  present
\ncase  Exs.  D-67 and D-68 disclose that\t the  Superintending
\nEngineer  was  authorized to enter into a  contract  of\t the
\nnature\tmentioned  therein  on\tbehalf\tof  the\t  Provincial
\nGovernment and that the contract was expressed to be made in
\nthe name of the Governor?\n<\/p>\n
(1) [1964] 3 S.C.R. 164.   (2) [1962] 2 S.C.R. 880.\n<\/p>\n
 1001<\/span><\/p>\n
Nothing\t has  been placed before us to\testablish  that\t the
\nSuperintending Engineer was legally authorized to enter into
\nsuch  a\t contract on behalf of the Government;\tnor  do\t the
\ndocuments ex jacie show that the agreement was expressed  to
\nbe  made  in  the name of the  Provincial  Government.\t The
\nletters\t mentioned  the name of the Minister of\t the  Public
\nWorks Department and also the Government, in the context  of
\nthe  rates  that  might be fixed thereafter,  but  the\tsaid
\ndocuments did not purport to emanate from the Governor.\t  At
\nbest they were issued under the directions of the  Minister.
\nWe find it difficult to stretch the point further, as such a
\nconstruction  will make the provisions of s. 175(3)  of\t the
\nGovernment  of\tIndia  Act,  1935,  nugatory.\tWe   cannot,
\ntherefore, hold that either the contract was entered into by
\nthe person legally authorized by the Government to do so  or
\nexpressed  to  be  made in the name of\tthe  Governor.\t The
\nagreement  is  void,  as  it  has  not\tcomplied  with\t the
\nprovisions  of\ts. 175(3) of the Government  of\t India\tAct,
\n1935.\n<\/p>\n
In this view, it is not necessary to express our opinion  on
\nother interesting questions raised in this case.
\nIn the result, the appeal fails and is dismissed, but in the
\ncircumstances, without costs.\n<\/p>\n
     Appeal dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Karamshi Jethabhai Somayya vs The State Of Bombay on 3 March, 1964 Equivalent citations: 1964 AIR 1714, 1964 SCR (6) 984 Author: K Subbarao Bench: Subbarao, K. PETITIONER: KARAMSHI JETHABHAI SOMAYYA Vs. RESPONDENT: THE STATE OF BOMBAY DATE OF JUDGMENT: 03\/03\/1964 BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. GUPTA, K.C. DAS DAYAL, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-16337","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKaramshi Jethabhai Somayya vs The State Of Bombay on 3 March, 1964 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/karamshi-jethabhai-somayya-vs-the-state-of-bombay-on-3-march-1964\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Karamshi Jethabhai Somayya vs The State Of Bombay on 3 March, 1964 - 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