Appeal No 552 of 1962
Appeal by special leave from the judgment and decree dated August 22 1960 of the former Bombay High Court in appeal No 432 of 1954 from Original Decree
M K Nambiar J B Dadachanji O C Mathur and Ravinder Narain for the appellant
D R Prem B R G K Achar and R H Dhebar for the respondent
March 3 1964
The Judgment of the Court was delivered by SUBBA RAO J
This appeal by special leave is directed against the judgment and decree of the High Court of Bombay confirming those of the Civil Judge Senior Division 986 Ahmednagar Jr Special Civil Suit No 6 of 1953 filed by the appellant against the State of Bombay for a declaration of his right to water from a particular source and for consequential reliefs
The appellant is the owner of Shankar Tukaram Karale Rampur Farm situated at the tail outlet of the Godavari Right Bank Canal Distributary No 17 The lands comprised in the said Farm originally belonged to Shankar Tukaram Karale hereinafter called Karale
In the year 1935 the said Karale had a farm for raising sugarcane consisting of 35 acres owned by him and about 65 acres of land taken on lease by him in Ahmednagar District
He obtained sanction to irrigate his lands on the outlet No 17 of the Godavari Right Bank Canal
In or about the same year the Government of Bombay proposed to reserve certain area along the said Distributary Canal as factory area
After some correspondence between the said karale and the Government of Bombay it was the appellant s case the Superintending Engineer agreed on July 14 1939 to exclude Karale s lands from the factory area and also to give him water perpetually on condition that he concentrated all his holdings on the tail outlet of Distributary No 17 and to take the supply of water on volumetric basis
Pursuant to that arrangement Karale by purchase or otherwise concentrated his holdings and shifted his operations to that area and he was supplied water on the agreed basis
In or about April 1948 the appellant and Karale entered into a partnership for exporting the said area whereunder the appellant had three fourths share and the said Karale had one fourth share
Later on disputes arose between the appellant and Karale in respect of the partnership which culminated in a consent decree dated February 7 1951 whereunder the appellant became the full owner of the partnership business with all its assets and liabilities including the lands and the compact block and the right to use the canal water
When the appellant applied for the recognition of the transfer the Canal Officer refused to do so
On appeal he was informed that his request for supply of canal water could not be granted
From April 1952 the supply was stopped
After giving the statutory notice under 987 section 80 of the Code of Civil Procedure the appellant filed Special Civil Suit No 6 of 1953 in the Court of the Civil Judge Senior Division Ahmednagar against the State of Bombay for a declaration that the plaintiff was entitled to the supply and use of water from the tail outlet of Distri butary No 17 of the Canal to irrigate 100 acres of basic cane land in the concentrated area described in Schedule 11 at the rates prescribed by the Government under the Irrigation Act on a volumetric basis for specific performance of the aforesaid agreement between Karale and the Government for recovery of damages and for other incidental reliefs
The State of Bombay filed a written statement contending inter alia that there was no concluded agreement between the Government and Karale embodying the alleged terms stated in the plaint that even if there was such an agreement it was void inasmuch as it did not comply with the provisions of section 1753 of the Government of India Act 1935 and that in any view the appellant could not legally get the benefit of the agreement under section 30 of the Bombay Irrigation Act 1879
On the pleadings as many as seven issues were framed reflecting the contentions of the parties
The learned Civil Judge held that there was a concluded agreement between the Government and Karale on the terms alleged by the appellant but the transfer by Karale of the said right in favour of the appellant was in violation of the provisions of the Bombay Tenancy and Agricultural Lands Act 1948 and therefore there was no legal transfer of Karale s right of water in favour of the appellant
In that view he dismissed the suit
On appeal the High Court held that there was neither a concluded agreement between Karale and the Government nor did it comply with the requirements of law
In the result the appeal was dismissed
Hence the present appeal
The arguments of Mr M K Nambiar learned counsel for the appellant may be summarized under the following heads  1 There was a concluded agreement between Karale and the statutory authority the Canal Officer whereunder the said Karale was entitled to get water to his compact block permanently from the tail outlet of Distributary No 17 of the Godavari Right Bank Canal so long 988 as he was willing to pay the rates for such supply on volu metric basis
2 As under the compromise decree between Karale and the appellant the said block of land was trans ferred to the appellant the right under the agreement for the supply of canal water was also transferred to him under section 30 of the Bombay Irrigation Act 1879 Bombay Act No 7 of 1879 hereinafter called the Act
3 Section 1753 of the Government of India Act 1935 does not apply to the agreement in question for the following reasons  i once the Legislature covers any matter by the enactment of any statute any functional power assigned to the Government or any other authority under the said statute is exercisable only under that statute and in virtue of the statutory authority and not in the exercise of the executive authority of the Province within the meaning of section 1753 of the Government of India Act 1935 ii the agreement contemplated by section 30 of the Act is an agreement entered into under the Act by a statutory authority in pursuance of a statutory power with the statutory consequences and therefore such an agreement is outside the provisions of section 1753 of the Government of India Act 1935 and iii that apart the expression agreement in section 30 of the Act does not mean a formal contract but only a sanction permission or consent given by the Canal Officer pursuant to the authority given to him under the Act and therefore such sanction permission or consent is not a contract within the meaning of section 1753 of the Government of India Act 1935
This appeal raises a question a far reaching importance as regards the scope of the executive authority exercised by the Governor under the Government of India Act 1935 but we are relieved of the duty to express our opinion on that question in this appeal in view of our finding that the agreement in question was arrived at outside the provisions of the Act and therefore it squarely falls within the scope of section 1753 of the Government of India Act 1935
We shall at the outset address ourselves to the said agreement namely i who are the parties to the said agreement and ii what are the terms thereof 989 When the suit was pending decision of the Civil Court the appellant filed an application therein for directing the Government to produce among others the applications made to the Government from time to time by Karale in respect of supply of water to his farm in the year 1935 and subsequent thereto and the office copies of the replies sent to the said applications the Government documents and papers water bills and the records in respect _of the supply of water to the land belonging to Karale from the year 1935
and the correspondence that passed between karale and  the Government between 1935 and 1939 in respect of consolidation of his lands
Obviously these papers were required by the appellant for establishing the case that there was a concluded agreement between Karale and the Government or the Canal officer
But unfortunately the said documents were not produced
It is not clear from the record why and under what circumstances the Government withheld the documents from the court but in appeal the High Court in its judgment remarked In the trial Court no attempt was made to have this endorsement produced in Court which could have been done if the plaintiffs Counsel had so desired by a proper application to the Court
But the High Court felt that it was absolutely necessary in the interests of justice to call upon the learned Government Pleader to produce the file with reference to that particular endorsement namely Endorsement No 303336 1 dated 28th April 1939 and directed him to do so
It disposed of the appeal after receiving the said relevant document
Though the High Court threw the blame for this lapse on the appellant we do not think there was any justification for it
Apart from the fact that the appellant asked for the production of all the relevant documents the Government being the defendant in this case should have produced the documents relevant to the question raised
While it is the duty of a private party to a litigation to place all the relevant matters before the Court a higher responsibility rests upon the Government not to withhold such documents from the court
Be that at it may the documents were finally produced before the court and the High Court considered the same in arriving at its conclusion
Though Mr Nambiar suggested that the said documents 990 related to some other party as we will indicate in the course of the judgment the said file dealt also with the agreement alleged to have been entered into between Karale and the Government
Exhibits Nos
D 67 and D 68 are the documents on which strong reliance is placed on behalf of the appellant
Exhibit D 67 reads thus  Below Government endorsement No 303336 1 dated the 28th April 1939 No 4223 of 1939 Poona 14th July 1939
Returned with compliments
The applicant has already been allowed to continue his present cane irrigation of 93 acres on outlets 2 and Tail of Distributary 17 of the Godavari Right Bank Canal for one year from 15 2 1939 pending consideration of his case in detail in relation to the demand of the Sugar Company formed by Messrs Jagtap  Khilari on this canal and lately named the Changdeo Sugar Factory
In view however of the orders issued verbally by the Hon ble Minister Public Works Department on 12 7 1939 the applicant is being allowed to concentrate all his cane irrigation to the extent of 100 acres on the tail outlet of Dy 17 of the Godavari Right Bank Canal by 15 2 1940 and to continue it permanently there if he so wishes provided he agrees to take water by measurement on volumetric basis of 112 at the outlet head and pay the water rates that may hereafter be sanctioned by Government in this respect
The applicant has since signified his willingness to these conditions
He will be charged till then on the area basis as is done at present
The area thus allowed to the applicant will be excluded from the Sugar Factory area while 991 fixing the boundaries of the allotted factory area of the Changdeo Sugar Factory on this canal
DA Marathi petition
Sd W H E GARROD Superintending Engineer DIC Copy with compliments to the Executive Engineer Nasik Irrigation Division for information and guidance with reference to the correspondence ending with this office No 3686 dated 22 6 1939
Exhibit D 68 is a letter written by the Superintending Engineer to Karale
It reads  No 4224 of 1939 Poona 14th July 1939
TO Shankar Tukaram Karale Esquire at Belapur
Continuation of cane irrigation on Distributary No 17 of the Godavari Right Bank Canal
Dear Sir In continuation of this office No 3686 dated 23rd June 1939 I have to inform you that under orders of the Honourable Minister Public Works Department you will be allowed to irrigate came to the extent of 100 acres on the tail outlet of Distributory No 17 of the Godavari Right Bank Canal permanently so long as you may wish to do so on condition that you agree to take canal water by measurement on volumetric basis of 112 depth at the outlet head at the rate which may be sanctioned by Government hereafter
2 This will apply to new cane plantation from 15 2 1940 onwards
Till then you may continue your cane irrigation on outlets 2 and tail as at present
Yours faithfully Sd W H E Garrod Superintending Engineer Deccan Irrigation Circle
992 Copy with compliments to the Executive Engineer Nasik Irrigation Division for information
A fair reading of these two documents leaves no room for doubt that a firm agreement was entered into between the Government and Karale in respect of the supply of water to his land to the extent of 100 acres on the tail outlet of Distributary No 17 of the Godavari Right Bank Canal
These two letters show that there was previous correspondence between the Engineering Department and Karale and that the Minister of Public Works Department intervened and settled the terms of the agreement and that the terms were communicated to Karale who accepted the same
The terms of the agreement were i Karale was allowed to concentrate all his cane irrigation to the extent of 100 acres on the tail outlet of Distributary No 17 of the Godavari Right Bank Canal by February 15 1940 and to continue it permanently if he so wished ii Karale agreed to take water by measurement on volumetric basis of 112 at the outlet head and to pay water rates that might thereafter be sanctioned by the Government in that respect iii the said area will be excluded from the sugar factory area while fixing the boundaries of the allotted sugar factory area of Changdeo Sugar Factory and iv the terms will apply to new cane plantation from February 15 1940 onwards
It is said that the word permanently refers to cultivation but not to supply of water
This interpretation makes the entire contract meaningless
Sugar cultivation can be done only with the permission of the department for sugarcane crop cannot be raised without supply of water from the canal
When the Superintending Engineer allowed Karale to concentrate all his cane irrigation in the said area permanently on condition he paid the prescribed rates it was necessarily implied in the said agreement that he would supply water permanently if the said rates were paid
Cultivation and supply of water are so inextricably connect ed that one cannot be separated from the other
The permission to have cane irrigation permanently on the basis of a particular rate implies that the supply for irrigation is co terminous with irrigation
In this view we must hold that Exs
D 67 and D 68 read together record a concluded 993 agreement between the Superintending Engineer acting on the orders of the Minister of Public Works Department on the one hand and Karale on the other agreeing to supply water so long as Karale had cane cultivation in the con s centrated area
The other documents read along with the documents filed for the first time in the High Court also do not detract from this conclusion
Exhibit D 78 which is not dated was the application filed by Karale to the Chief Minister PWD and Irrigation Department Bombay
Therein Karale represented to the Chief Engineer that Distributary No 17 was permanently closed prior to 1935 that he was responsible for starting the said Distributary by commencing plantation
that the Prime Minister s consent gave him an assurance that while declaring the factory area the area of the previous gardeners would be excluded from the said area that he had invested a capital of about Rs 75000 for raising the plantation and that in the circumstances he prayed that while declaring the factory area his land should be excluded therefrom
This application was considered by the concerned office under GL No 303336 dated April 27 1939
In the note put up by the office the contents of the said application are summarized
Thereafter the following note is found  With reference to the HMRD s note dated 3 4 1939 it may be observed that Government has already accepted the principle that no ordinary irrigators should be allowed to operate in the sugar factory area
Under the general orders issued on the subject owner irrigators are to be allowed to continue irrigation on yearly basis
It is for consideration whether this fact may be brought to the notice of the HMRD
If it is decided to do so the papers may be submitted to the HM PWD and the HMRD after the drafts put up are issued The Revenue Minister accepted the endorsement
This is only an office note and the suggestion that the irrigators should be allowed to continue on the yearly basis was only to prevent further applications after the factory area was declared
This endorsement had nothing to do with the 134 159 SC 63 994 exclusion of any particular area from the sugar factory area
The endorsement should see below the endorsement made by the Revenue Minister perhaps meant that the papers should be submitted to the Minister concerned
Exhibit D 79 is a letter written by the Deputy Secretary to the Government of Bombay to Changdeo Sugar Mills
This letter also refers to the office endorsement No 303336 1
Though we are not directly concerned with this letter it may be mentioned that the application of Karale is connected with the proposal to declare certain area as factory area and to give water to Changdeo Sugar Factory in respect of the lands in that area for his application was to exclude his area from the factory area
Both the matters obviously were dealt together
Exhibit D 79A is again part of the file relevant to the factory area
But a reference is made again to the office No 303336 1 and in the same file Karale s letter is also noticed
Exhibit D 81 is an endorsement at page 133 of the same file which also deals with the subject sugar factories
It contains a copy of the letter written to the Superintending Engineer requesting him to submit at a very early date a draft agreement for the supply of water to the company s area on the Godavari Right Bank Canal on the terms embodied in the margin thereof
Exhibit D 82 is also another endorsement on the same file
The endorsement reads thus  Endorsement at 191
303336 1114 Discussed with the Secy
In addition to his written requests Mr Karale had also interviewed the late HMRD
During the discussions HM had made it clear that Mr Karale can only be allowed to continue if he was willing to consolidate his holdings in an independent block so that the Co s cultivation be carried on undisturbed
This is not recorded on this file as HM did not pass any orders in Bombay or at the Secretariat but instructed 995 Presumably after discussion with Mr Sule the SEDIC in the matter
Please see P 107 ante
That Mr Karale s cane has to be shifted to one block is clear from the wordings of the SES letter
The applicant is allowed to concentrate all his cane  on the tail outlet of D 17
This is the only record of the orders passed
Moreover Mr Karale is to have his supply on a volumetric basis as soon as that can be arranged for
This would necessitate the concentration of his cane areas
 This endorsement notices the contents of exhibit D 67 and therefore it must have been made only after April 28 1939
The said documents do not carry the matter further
They only show what we have already noticed namely the Govern ment wanted to create a factory area and that Karale filed an application to have his area excluded therefrom
The notings of the department are not in any way inconsistent either with exhibit D 67 or with exhibit D 68
Exhibits D 67 and D 68 refer to Office No 3686 dated June 23 1939 and that letter must have been in some other file and that file was not produced and if produced it might have thrown some more light
In the circumstances we must proceed on the basis that Exhibits D 67 and D 68 embodied the terms of the agreement entered into between the Government and Karale pursuant to the application exhibit D 78 made by him to the Chief Engineer PWD We have already held that the said documents record the completed agreement between the Government and Karale in respect of supply of water to his and
Even so the question arises whether the said agreement is enforceable if it has not complied with the provisions of section 1753 of the Government of India Act 1935
The premises on which Mr Nambiar built his argument is that the said agreement was entered into between the parties under the provisions of the Act
If it was not made under the provisions of the Act but outside the Act the foundation for this argument would disappear
We would therefore
proceed to consider now whether the said agreement was under the provision of the Act
996 The relevant provisions of the Act may now be read
Section 36 defines Canal Officer to mean any officer lawfully appointed or invested with powers under section 4
Under section 4 such officer can exercise powers and discharge duties that may be assigned to him by the State Government
It is said that the Superintending Engineer was one of the officers so appointed by the Government and that the powers under sections 27 to 30 of the Act were assigned to him
Under section 27 Every person desiring to have a supply of water from a canal shall submit a written application to that effect to a Canal Officer duly empowered to receive such applications in such terms as shall from time to time be prescribed by the State Government in this behalf
Under section 29 When canal water is supplied for the irrigation of one or more crops only the permission to use such water shall be held to continue only until such crop or crops shall come to maturity and to apply only to such crop or crops
Under section 30 Every agreement for the supply of canal water to any land building or other immovable property shall be transferable therewith and shall be presumed to have been so transferred whenever a transfer of such land building or the other immovable property takes place But under the second limb of the section except in the case of any such agreement as aforesaid no person entitled to use the water of any canal shall sell or sub let or otherwise transfer this right to such use without the permission of a Canal Officer duly empowered to grant such permission
A combined reading of these provisions establishes that every person desiring to have supply of water from a canal shall apply in the prescribed manner to the Canal Officer and that the per on to whom water is supplied cannot transfer his right to another without the permission of the Canal Officer
But if the land in respect whereof the water is supplied is transferred the agreement for the supply of water also shall be presumed to have been transferred along with it
The expression agreement in section 30 of the Act it is contended does not connote a contract as understood in law but only a convenient mode of expression to indicate the sanction or permission given by the Canal Officer
This meaning of the expression agreement is sought to be supported by a reference to the Bombay Canal Rules 1934 made in 997 exercise of the powers conferred on the State Government under section 70e of the Act
Part 11 of the Rules deals with supply of water
It provides for the filing of applications the manner of their disposal and
the persons entitled to dispose of the same and also the mode of supply of water for cultivation of different crops
The forms prescribed columns under different heads for giving the necessary particulars
The forms contain the instructions as well as conditions on which permission will be granted
Rule 7 says that an application for supply of water for the irrigation of land for any period may be sanctioned indicating thereby that there is no maximum period fixed for which application for supply of water can be made
Assuming without deciding that agreement under section 30 of the Act means only sanction the Act and the Rules provide for an application to be made to the Executive Engineer who subject to
the Rules can give the sanction
Rule 36 provides for an appeal from the order of the Executive Engineer to the Superintending Engineer and from that of the Executive Engineer s order under r 18 or r 19 to the Collector
But there is no provision either in the Act or in the Rules made thereunder enabling any party to make an application to the Chief Engineer to exclude his land from factory area and to give him supply of water for irrigating the said land permanently or a power to the Government to enter into an agreement or make an order in respect of such an application
Such an order or agreement is entirely outside the scope of the Act or the Rules made thereunder
We are not called upon in this case to decide whether the Government has any such power outside the Act but we shall assume for the purpose of this case that it has such power and to proceed to consider the legal arguments on that basis
The documentary evidence adduced in this case which we have already considered discloses that the application was made to the Chief Engineer that the Government through the relevant ministry considered the application and that on the instructions given by the concerned Minister the Superintending Engineer wrote the letter exhibit D 68 to Karale
It was therefore in effect and substance an agreement entered into between the Government and Karale
998 Such an agreement fell outside the provisions of the Act
The parties to the agreement also understood that it was an agreement made between the Government and Karale
The Government in or about February 1942 sent a draft agreement to Karale for execution regarding the supply of canal water to his farm but the said Karale did not execute the agreement
The parties did not agree in regard to some of the conditions found in the draft but Karale did not contest the position of the Government that a formal agree ment in compliance with the provisions of law was necessary
Again during the continuance of the partnership between Karale and the appellant in or about 1950 the Government of Bombay sent another draft agreement to the said Karale for execution
Though Karale signed the agreement he insisted upon a proviso that the agreement should be without prejudice to the permission already granted to him
The Bombay Government did not execute the said agreement
So too Karale and the appellant were making yearly applications under the Act and getting supply of water to their plantation
That procedure was presumably followed because though there was an agreement between Karale and the Government for one reason or other a formal document though intended to be executed was not executed
This conduct on the part of the Government as well as that on the part of Karale and the appellant also establishes that the agreement was not under the Act but between the Government of Bombay and Karale
If so it follows that the contract entered into between the Government and Karale was a contract made in the exercise of the executive authority of the Province within the meaning of section 1753 of the Government of India Act 1935
The relevant part of section 1753 of the Government of India Act 1935 read  All contracts made in the exercise of the executive authority of a Province shall be expressed to be made by the Governor of the Province  and all such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the Governor by such persons and in such manner as he may direct or authorise
999 This section laid down two conditions for the validity of such a contract namely i it should be expressed to be made by the Governor of the Province and ii it should be executed on behalf of the Governor by such persons and in such manner as he might direct or authorize
We have nothing on the record to disclose whether the Superintending Engineer though he acted under oral instructions of the Minister was authorized by the Governor or under relevant rules to enter into such a contract
That apart even if Exs
D 67 and D 68 together were treated as forming part of a contract entered into between the Government and Karale can it be said that the said contract was expressed to be made in the name of the Governor Ex facie it cannot be said so
But it is contended that on a liberal construc tion which we should adopt in a case where the Government is trying to go back on its solemn promise such a formality can easily be read into the said documents
Before we construe the said two documents in order to ascertain whether such a formality has been complied with or not it would be convenient to notice some of the decisions of this Court
The question of construction of section 1753 of the Government of India Act 1935 directly arose for decision in Seth Bikhraj Jaipuria vs Union of India1
There the Divisional Superintendent East Indian Railway placed certain orders with the appellant for the supply of foodgrains for the employees of the said Railway
The orders were not expressed to be made in the name of the Governor General and was not executed on behalf of the Governor General as required by section 1753 of the Government of India Act 1935
They were signed by the Divisional Superintendent either in his own hand or in the hand of his Personal Assistant
This Court held that the contracts not having been expressed to be entered into by the Governor General and not having been executed on his behalf were void
This Court held that the provisions of section 1753 of the Government of India Act 1935 were mandatory and therefore the contracts were void
This decision was followed by this Court in New Marine Coal Co vs The Union of India2
Reliance is placed by the 1 2  1000 learned counsel for the appellant on the decision of this Court in Union of India vs Rallia Ram 1 in support of his contention that though ex facie Exs
D 67 and D 68 do not show that the contract was expressed to be made in the name of the Governor the said fact could be inferred from the recitals
There the goods offered to be sold belonged to the Government of India
A tender notice was issued by the Government of India Department of Food Division 111 in the name of the Chief Director of Purchases
The Chief Director of Purchases agreed to sell the goods on certain conditions to the respondent and incorporated them in the acceptance note which was also headed Government of India Department of Food Division III New Delhi
The general conditions of contract which accompanied the letter of acceptance defined Government as meaning the Governor General for India in Council
On the said facts this Court held that the correspondence between the parties ultimately resulting in the acceptance note amounted to a contract expressed to be made by the Government and therefore by the Governor General because it was the Governor General who invited tenders through the Chief Director of Purchases and it was the Governor General who through the Chief Director of Purchases accepted the tender of the respondent subject to the conditions prescribed therein
Though in the acceptance note it was not expressly stated that the contract was executed on behalf of the Governor General on a fair reading of the contents of the letter in the light of the obligations undertaken thereunder it was held that the contract was executed on behalf of the Governor General
This decision does not depart from the principle accepted in Seth Bikhraj Jaipuria s case2
On a fair reading of the correspondence this Court construed that the contract was entered into on behalf of the Governor General and expressed to be made in his name
Can it be said that in the present case Exs
D 67 and D 68 disclose that the Superintending Engineer was authorized to enter into a contract of the nature mentioned therein on behalf of the Provincial Government and that the contract was expressed to be made in the name of the Governor 1  2  1001 Nothing has been placed before us to establish that the Superintending Engineer was legally authorized to enter into such a contract on behalf of the Government nor do the documents ex jacie show that the agreement was expressed to be made in the name of the Provincial Government
The letters mentioned the name of the Minister of the Public Works Department and also the Government in the context of the rates that might be fixed thereafter but the said documents did not purport to emanate from the Governor
At best they were issued under the directions of the Minister
We find it difficult to stretch the point further as such a construction will make the provisions of section 1753 of the Government of India Act 1935 nugatory
We cannot therefore hold that either the contract was entered into by the person legally authorized by the Government to do so or expressed to be made in the name of the Governor
The agreement is void as it has not complied with the provisions of section 1753 of the Government of India Act 1935
In this view it is not necessary to express our opinion on other interesting questions raised in this case
In the result the appeal fails and is dismissed but in the circumstances without costs
Appeal dismissed


Summary:
One K had obtained sanction to irrigate certain lands from a canal
The same year the Government proposed to reserve certain area along the canal as factory area
According to the appellant after some correspondence between the Government and K the Superintending Engineer agreed to exclude K s land from the factory area and also to give water perpetually on the condition that he concentrated all his holding on the tail outlet of the canal and to take the supply of water on volumetric basis
Pursuant to that arrangement K concentrated his holdings and shifted his operations to that area and he was supplied water on the agreed basis
Later the appellant and K entered into a partnership in respect of exploiting this area
Disputes arose between the appellant and K which culminated in a consent decree whereunder the appellant became the full owner of the land including the right to use this canal water
When the appellant applied for the recognition of the transfer the canal officer refused to do so
On appeal be was informed that his request for supply of the canal water could not be granted
The supply was stopped
After giving them statutory notice under section 80 of the Code of Civil Procedure the appellant filed a suit against the State for a declaration of his right to water from the canal and for consequential reliefs
The State contested the suit contending inter alia that there was no concluded agreement between the Government and K that even so the agreement was void inasmuch as it did not comply with the provisions of section 1753 of the Government of India Act 1935 and in any view the appellant could not legally get the benefit of the agreement under section 30 of the Bombay Irrigation Act
The Civil Judge held that there was a concluded agreement between the Government and K but the transfer by K of the said right in favour of the appellant was in violation of the provisions of the Bombay Tenancy and Agricultural Lands Act and dismissed the suit
On appeal the High Court held that there was neither a concluded agreement between K and the Government nor did it comply with the requirements of law and the appeal was dismissed
On appeal by special leave Held i The documents in the instant case record a concluded agreement between the Superintendent Engineer acting on the order of 985 the Minister of Public Works Department on the one hand and K on the other agreeing to supply water so long as K had cane cultivation in the concentrated area
ii The provisions of Bombay Irrigation Act establishes that every person desiring to have supply of water from a canal shall apply in the prescribed manner to the Canal Officer and that person to whom water is supplied cannot transfer his right to another without the permission of the Canal Officer
But if the land in respect whereof the water is supplied is transferred the agreement for the supply of water also shall be presumed to have been transferred along with it
iii The conduct on the part of the Government as well as that on the part of K and the appellant also establishes that the agreement was not under the Bombay Irrigation Act but between the Government and K iv The agreement is void as it has not complied with the provisions of section 1753 of the Government of India Act
The contract was not either entered into by the person legally authorised by the Government to do so or expressed to be made in the name of Governor
Seth Bikhraj Jaipurja vs Union of India and New Marine Coal Co vs Union of India 1964 2 SCR 859 referred to
Union of India vs Rallia Ram   referred to
Semble While it is the duty of a private party to a litigation to Place all the relevant matters before the court a higher responsibility rests upon the Government not to withhold such document from the Court