Appeal No 47 of 1979
From the Judgment Order dated 20177 of the Gujarat High Court in Second Appeal No 90 of 1976
Krishan Kumar for Vimal Chandra section Dave for the Appellants
Ms Meenaksh Arora for Anip Sachthey for the Respondent
The Judgment of the Court was delivered by ANAND J
This appeal by special leave is directed against the judgment of the Gujarat High Court dated 20th of January 1977 in Second Appeal No 90 of 1976
The plaintiffs appellants are the farmers of the Village Morzar under Bhanwad Taluka of Jamnagar District
Their lands are situated on the outskirts of the village
Under the Vartu Dam Irrigation Scheme the defendant State proposed to construct a Dam on river Vartu and prepared a sketch indicating the passage of the canal from Vartu Dam and for that purpose it proceeded to acquire land through which the canal was proposed to run
The plaintiffs appellants apprehended serious damage to their lands by the passing of the canal through their lands and they filed a Regular Civil Suit in 1966 against the defendant State seeking to restrain it from implementing the Irrigation Scheme as proposed
Suit was registered and defendants were summoned
During the pendency of the suit it appears that an agreement was arrived at between the parties and it was agreed that the canal from Vartu Dam would be run as per the line demarcated in red in the map appended to the deed of agreement Ex45
As a result of the said agreement the suit was unconditionally withdrawn by the plaintiffs on 24111966
Somewhere in 1972 the plaintiffs appellants discovered that the State Government was going back from the agreement and alignment of the canal was being undertaken contrary to the alignment reflected in the map appended to the agreement Ex45
They therefore filed a fresh suit for declaration to the effect that the agreement dated 7111966 entered into between them and the respondents through its Executive Engineer Irrigation Department Jamnagar was binding on the parties and that the parties were bound to act according to the terms of the said agreement and for an injunction restraining the defendant State from going back on the agreement
This suit of the plaintiffs appellants was contested and the following issues were framed 371 1 Whether the suit agreement dated 7111966 is not binding to the defendant  2 If it is binding whether the plaintiff prove that they have complied with the terms and conditions of this agreement 3 Whether the suit as framed is not maintainable 4 Whether the suit is bad for the mis joinder of the plaintiffs and the cause of action 5 Whether the suit is not maintainable as the agreement dated 7111966 has not been registered of because no compromise decree had been passed in terms of this agreement 6 Whether the suit is not in time 7 Whether the plaintiffs are entitled to the declaration sought 8 Whether the plaintiffs are entitled to get the permanent injunction as prayed for by them 9 What order Issues 1 to 8 were decided in favour of the plaintiffs appellants and against the defendant State
The Trial Court decreed the suit and declared that the suit agreement dated 7111966 entered between the plaintiffs and the defendants through its executive engineer was binding on the parties and that the parties were bound to act in accordance with the terms of the said compromise the defendant state was permanently restrained from going back from the agreement and act otherwise than as per the terms of the same
The State of Gujarat preferred an appeal in the Court of District Judge Jamnagar against the judgment and decree of the Trial Court
During the hearing the parties confined their arguments to the following two points 1 Whether the agreement dated 71166 is binding to the 372 State of Gujarat 2 Whether the plaintiffs are entitled to the reliefs granted to them by the trial court The appellate court answered both the questions in the affirmative and by its order dated October 20 1975 confirmed the judgment and decree of the trial court
The appeal of the State of Gujarat was dismissed
The State filed a Second Appeal in the High Court
The High Court examined the agreement dated 7111966 exhibit 45 which is in Gujarati and is described as Rojkam on the subject of the alignment of Vartu Canal
The High Court noticed that the Rojkam refers to the filing of the suit in the Civil Court and the meeting between the Executive Engineer and the occupants of land and proceeded to recite that on the aforesaid subject there was discussion of the Executive Engineer with the occupants and thereafter both the sides have amicably settledcompromised the dispute with regard to the alignment of the canal
The Rojkam further records that both the sides have agreed to the alignment shown in rose colour in the map
The Rojkam then records The Executive Engineer Mr BV Nanavati having assured of getting necessary alterations as aforesaid made they ie the plaintiffs or the occupants have shown willingness to withdraw unconditionally the suit filed in Civil Court
 The Rojkam is signed by the Executive Engineer as also by the occupants
Before the High Court the main plea raised by the State was that the alleged compromiseagreement was not binding upon the State
It was stated that the State does not admit any agreement made by the Executive Engineer either on behalf of the State or as a representative of the State and therefore the so called agreement did not bind the State Government
It was asserted by the State that the Executive Engineer had no authority to agree on behalf of the State Government as he was not the representative of the Government
Similar plea had been raised before the trial court and the lower appellate court but was rejected
The High Court however accepted the plea of the State and found that the courts below had erred in ignoring the mandatory provisions of Article 299 of the Constitution of India which mandates that all contracts made in the exer 373 cise of the executive power of the Union or of a State shall be expressed to be made by the President or by the Governor of a State as the case may be and all such contracts and all assurances of property made in the exercise of that power shall executed on behalf of the President or the Governor by such persons and in such a manner as he may direct or authorise
The High Court found that for non compliance with the provisions of Article 2991 of the Constitution of India which are mandatory in character the agreement exhibit 45 was a null and void document
The High Court then observed  Apart from the question whether the Executive Engineer in the present case was directed or authorised to execute this agreement on behalf of the State Government it is clear on the face of the document Ex45 itself that the alleged agreement contained therein is not expressed to be made by the Governor
This position is incontrovertible and even Mr Shah for plaintiffs respondents was not able to show that the document Exh45 contains an agreement expressed to be made by the Governor
Really speaking on a correct interpretation of this document Exh45 it only contains basis of the compromise terms between the Executive Engineer and the occupants who probably were plaintiffs of the earlier suit as regards the change of alignment and pursuant to which compromise the plaintiffs agreed to withdraw the suit
The Governor or the State Government is nowhere in the picture if we go through this agreement
Therefore assuming that the document contains an agreement in reality it is an agreement not by the Governor or the state Government but by the Executive Engineer with the occupants who signed the same
Such an agreement which is not in compliance with the provisions of Article 299 of the Constitution is void and unenforceable against the State
If this is so the suit filed by the respondents plaintiffs must fail
 The High court negatived the contention raised on behalf of the plaintiffs appellants to the effect that under the statutory powers conferred by Section 18 of the Bombay Irrigation Act 1879 hereinafter called the Act the Executive Engineer was competent to enter into compromise and 374 that the said compromise arrived at during the pendency of the earlier suit was binding on the Government
The High Court said  Then it was contended that in exercise of his powers under section 18 of the aforesaid Act the Executive Engineer acts for the Government and therefore the agreement in question is binding on the Government
There is an inherent misconception underlying this contention
While exercising statutory powers ie powers conferred by a statute an officer of the Government does not act for the Government
He acts not because of any authority derived from the Government to exercise power conferred on him by the Statute
This contention must also fail As a consequence the appeal filed by the State was allowed and the judgment and decree passed by the courts below were reversed and the suit filed by the plaintiffs appellants was dismissed with costs throughout
Learned counsel for the appellants has assailed the judgment of the High Court and submitted that the agreementcompromise Ex45 had been validly entered into by the Executive Engineer with the appellants in view of the statutory powers vested in the Executive Engineer under Section 18 of the Act and reliance placed on Article 299 of the Constitution of India in the facts and circumstances of this case was wholly erroneous
It was urged that by a Notification dated 27th of September 1963 published in Part IV B of the Gujarat Government Gazette dated 31st of October 1963 the Government of Gujarat had appointed all Executive Engineers and superintending Engineers in charge of canals in the State of Gujarat to be Canal Officers in respect of such canals and assigned to them all the powers and duties of the Canal Officers under the Act and therefore the agreementcompromise entered into by the Executive Engineer on 7111966 during the pendency of the suit of which he was doing pervi was a validly executed compromise which was binding on the parties and the respondent could not go back on it
Having been made to withdraw their earlier suit on the basis of the agreement dated 7111966 it was not permissible for the respondent to now dispute the act done by its officers or agents within their powers under the statute
In the facts and circumstances of this case we find force in the submission of learned counsel for the appellants regarding the non ap 375 placability of Article 299 of the Constitution of India to invalidate the agreementcompromise dated 7111966 arrived at during the pendency of the earlier suit filed by the appellants relying whereupon the appellants withdrew the earlier suit
The agreementcompromise Ex45 arrived at in the previous suit could not have been equated with a contract between the State and the citizen
Article 299 1 which reads thus  All contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President or by the Governor of the State as the case may be and all such contracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorise
 concerns itself with contracts and assurances of property and lays down how Government contracts including assurances of property are to be made and executed
Indeed the provisions of Article 299 are mandatory in character and their non compliance would render a contract void but where the agreement is not referable to Article 299 and is not a contract as contemplated by that Article the agreement cannot be invalidated for not satisfying the essential requirements of Article 299 of the Constitution
A compromise of the nature contained in the agreement dated 7111966 arrived at during the pendency of a suit is not a contract executed between the parties as envisaged by Article 299
There is a marked distinction between contracts which are executed in exercise of the executive powers and agreements or orders made which are statutory in nature
Article 2991 applies to a contract made in exercise of the executive power of the Union or the State and it has no application to a case where a particular statutory authority as distinguished from the Union or the State enters into an agreement within his authorised capacity
In State of Haryana  Ors
vs Lal Chand  Ors  this Court considered a contract granting exclusive privilege of liquor vending in exercise of the statutory powers referable to Punjab Excise Act 1914 and Punjab Liquor Licence Rules 1956 and held that the grant of the exclusive privilege gave rise to a contract of a statutory nature distinguished from the one executed under Article 2991 and therefore compliance with Article 2991 was not required in such a case
376 The question which immediately arises for our consideration is  Was the Executive Engineer competent to execute the agreement Ex45 In this connection it would be relevant to refer to some of the more relevant statutory provisions contained in the Act
Section 36 provides as follows  6 Canal Officer means any officer lawfully appointed or invested with powers under section 4 Section 17 reads thus Any persons desiring to construct a new water course but being unable or unwilling to construct it under a private arrangement with the holder of the land required for the same may apply in writing to any Canal Officer duly empowered to receive such applications stating 1 that he is ready to defray all the expense necessary for acquiring the land and constructing such water course 2 that he desires the said Canal Officer in his behalf and his cost to do all things necessary for constructing such water course
 Section 18 provides as follows If the Canal Officer considers the construction of such water course expedient he may call upon the applicant to deposit any part of the expense to such officer may con sider necessary and upon such deposit being made shall cause inquiry to be made into the most suitable alignment for the said water course and shall mark out the land which in his opinion it will be necessary to occupy for the construction thereof and shall forthwith publish a notification in every village through which the water  course is proposed to be taken that so much of such land as is situated within such 377 village has been so marked out and shall send a copy of such notification to the Collector of every district in which such land is situated for publication on such land
The said notification shall also call upon any person who wishes to share in the ownership of such water course to make his application in that respect to the Canal Officer within thirty days of the publication of such notification
If any such applicant appears and his application is admitted he shall be liable to pay his share in the construction of such water course and in the cost of acquiring the land for the same and shall be an owner of such water course when constructed
 Powers of the canal officers are contained in Section 77 reads thus 1 For the purpose of the inquiries under section 76 such Canal Officer may enter by himself or any officer authorised by him for the purpose upon any land adjacent to any such work and may survey demarcate and make a map of the same
2Notwithstanding anything contained in section 76 where no sufficient evidence is forthcoming as to all or any of the matters specified in that section such Canal Officer shall so far as may be settle and record the aforesaid matters in such manner as he may deem fit
 A perusal of the record reveal that it was the Executive Engineer who was doing pervi of the case in the suit filed
in 1966
The agreement compromise Ex45 was entered into during the pendency of the said case
As already noticed the Government of Gujarat had appointed all Executive Engineers and Superintending Engineers in charge of Canals in the State of Gujarat to be Canal Officers in respect of such canals and assigned to them all the powers and duties of the Canal Officers under the Act by virtue of the Notification dated 27th September 1963
Thus it is manifest that the Executive Engineer by virtue of the said Notification had been lawfully appointed as Canal Officer within the meaning of Section 378 36 of the Act
Section 18 of the Act vests the Canal Officer with the power to hold inquiry and direct the construction of suitable alignments for a water course and by Section 77 of the Act supra the Canal Officer is vested with the authority to survey demarcate and make a map of the land which in his opinion is suitable for constructing an alignment for the water course
Thus under the statute read with the Notification dated 27th September 1963 the Canal Officer Executive Engineer was fully com petent to decide about the particular alignment of the water course and it fell within his jurisdiction to decide and settle about the suitable demarcation of the alignment of the water course of the canal from Vartu Dam
He exercised that jurisdiction under the statute when he demarcated the water course in red in the map attached to Ex45 the agreement
It is the content of the agreement and not its form which is relevant to trace the source of power behind it and when examined in the light of the statutory provisions noticed above it is manifest that the document Ex45 has been executed by the Executive Engineer by virtue of the statutory powers vested in him
The circumstance that the agreement Ex45 came into existence during the pendency of the suit and was executed by way of an agreement does not militate against the order of alignment as reflected therein being any less statutory in character
As a matter of fact the Act itself envisages that the Canal Officer may alter and settle the alignment in consultation with the landholders through which the water course is to run
In the agreement Ex45 the Executive Engineer had agreed to alter the alignment of the water course in consultation with the petitioners who thereupon unconditionally  withdrew the suit as it appears no grievance remained to be settled
The altered alignment was therefore validly made by following the procedure envisaged by the Act
The High Court fell in error in ignoring this aspect of the case
It failed to appreciate the statutory powers of the Executive Engineer vested in him under Sections 18 and 77 of the Act read with the notification of 27th September 1963 on the true import of agreement Ex45
Thus in the facts and circumstances of the case we are satisfied that the agreement dated 7111966 exhibit 45 was lawfully executed by the Executive Engineer in exercise of his statutory powers under the Act and the State was obliged to act according to the terms of the said agreement and could not give it a go bye without following the procedure under the Act to again alter the alignment
It is nobody s case that for making an alteration in the alignment the requisite exercise was undertaken as envisaged by the Act in 1972 when the suit out of which 379 these proceedings have arisen was filed
In view of the aforesaid discussion the judgment and decree of the High Court deserves to be set aside and are hereby set aside
The judgment and decree passed by the Trial Court as confirmed by the District Judge are restored though for different reasons as detailed above
The appeal is consequently allowed
The parties however shall bear their own costs throughout
Before parting with the judgment we would also like to clarify certain position
The dispute is almost three decades old
Learned counsel for the parties were unable to state as to whether fresh alignments as envisaged by the red line in the map attached to Ex45 agreement had been made for the passing of the canal or not
We would therefore like to clarify that if any fresh alignment for the water course is required to be made different than the one originally proposed or the one contained in the said Map the same may be made but only by following the procedure prescribed under the Act and this judgment shall not be construed as any bar therefore
NPV Appeal allowed


Summary:
The appellants and two others were charged with and tried for offences under sections 148302149 and 323149 IPC for causing the murder of one S and causing simple hurts to one R both related to the accused
The Trial Judge acquitted one of the five accused since no part of the actual occurrence except exhortations were attributed to him and convicted the other four accused under section 30234 and 32334 IPC and sentenced them to life imprisonment and 6 months rigorous imprisonment respectively
On appeal the High Court acquitted one more accused on the ground that the medical evidence did not corroborate the claim that he used his kirpan with force as alleged by the prosecution
The appeal preferred by the complainant against this acquittalwas dismissed by this Court
The other three accused whose conviction and sentence were confirmed by the High Court have preferred the present appeals
It was contended on behalf of the appellants that the prosecution case has been discredited by the Courts render ing the same unacceptable resulting in the acquittal of two accused and for the same reasons they also deserved acquit tal
It was also contended that the evidence regarding recovery of weapons did not inspire confidence
587 Disposing of the appeal this court HELD 1
There may be a tendency here and there to implicate a person in addition to actual assailants in a crime but substitution is rare and that cannot be the case here
As is evident the parties are closely related
The crime was committed in broad day light
The witness is a stamped witness
There was no reason for the prosecution to falsely evolve a case against the appellants
The medical evidence is consistent and corroborative in connecting all the three appellants
On the eye witness account and the corroboration it receives from medical evidence their guilt is estab lished even if the evidence of recovery of weapon is kept aside592 C G 2
Out of 13 injuries on the dead body six were incised wounds and the remaining were blunt weapon injuries
Amongst the incised wounds the first one was by itself sufficient in the ordinary course of nature to cause death of the de ceased
That injury was positively attributed to the appel lant in the second case who opened the attack but the re maining five incised wounds were not positively attributed to him alone
It can safely be assumed that some may have fallen to his share to be inflicted and others to the co accused who has since been acquitted
Even though the Doctor has stated that all the incised wounds could have been caused by Kulhar P1 that by itself cannot go to conclude that all the incised wounds were caused by the appellant in the second case
Since he inflicted the first incised wound on the head of the deceased which was sufficient by itself in the ordinary course to cause death he has rendered himself liable to be adjudged guilty under section 302 IPC
592 H 593 A_C 3
Since extensive damage had been done to the limbs of the deceased after the infliction of vital injury No1 it can safely be inferred that despite the assailants  choosing non vital parts of the body for inflicting those injuries they must be attributed the knowledge that by their concert ed act they were likely to cause death of the deceased for which act they could be punished under section 304 part II of the Indian penal Code
The act was done while the de ceased was alive 
The outcome of injury No1 may or may not have been perceived by the assailants except the appellant in the second case but they were satisfied in choosing and inflicting injuries on non vital parts which injuries were caused by breaking the bones of his arms and legs593 F H 4
Due to his young age being in teens the appellant in the first case 588 may have acted under the influence of his paternal uncle viz the appellant in the second case
Though he shared the common intention of causing extensive injuries to the de ceased and injuries to PW4 he may not have shared the common intention of causing death but can definitely be attributed the knowledge that by his concerted act the victim could die
Similarly the share cropper had acted under the influence of his employersbut cannot be said to be a co participant in intentionally causing the death of the death of the deceased
He too must be attributed the knowledge that by his act in concert with others he was others he was likely to cause the death of the deceased
Also no injury on any vital part of the body of the de ceased was attributed to either of these accused
According ly these appellants are held guilty of offence under sec tion 304 IPC read with section 34 IPC and not under section 302 IPC594 A D 5
The conviction of the appellant in second case is altered to a plain one under section 302 IPC and his life sentence is maintained
His conviction and sentence under section 32334 is also sustained
The conviction of the other appellants are altered to one under section 304 IPC read with section 34 IPC for which a sentence of seven years rigorous imprisonment is imposed on each of them594 DE