SARDARI LAL v.

UNION OF INDIA & ORS ..

January 21, 1971

[J. C. SHAH, C.J., G. K. MITTER, K. S. HEGDE, A. N. GROVER,

AND A. N. RAY, JJ.] Constitution of India, 1950, Art. 311(2) (c)-Power to dispense with i714"irY under Article cannot be delegated to the Joint Secretary under (Government of India Allocation of Business) Ru/.,, 1961 made under Ari. 77(3) of the Cons1itution-A1t.c/e 77(2) does not prevent the cour~

from examining validity of order passed by Joint Secretary under s. 311(2)

(c) in the name of the President.

The appellant and 17 others were dismissed from Delhi Police Force.

The order in the case of the appellant recited that he was unfit to be retained in Civil Service. It also recited that the President was satisfied under Art. 311(2)(c) of the Constitution that in the interest of the securi.y elf the State it was not expedient to hold !an inqui-ry. The order was made by the Joint Secretary to the Government of India, Ministry of Home Affairs under authority granted to him by the Government of India (Allocation of Business) Rules, 1961 made under Ar:. 77(3) of the Constitution. It was argued on behalf of the appellants that authority could not be exercised on behalf of the President by the Joint Secretary. The High Court rejected this contention. Jn appeal by certificate, HELD : On the principles enunciated by thi~ Court in earlier decisions the 'functions in cl. (c) of the proviso to Art. 311(2) cannot be delegated by the President to anyone else in the case of a civil servant of the Union.

In other words he has to be satisfied presonally that in the interest of :he security of the State it is not expedient to hold an inqmrv pre<cribed hy

cl. ( 2). Jn the first place the general consensus in the decisions of this Court has been that executive function of the nature entrusted by certain articles, such as Arts. 309, 352, 356, 360 and in particular those articles in which the Pr03ident has to be satisfied himself about the exis ence of certain 'facts or state of affairs cannot be delegated by him to anyone else.

Secondly even with regard o cl. (c) of the proviso there is specific observation in Jayanti/a/'s case that the powers of the President under that provision cannot be delegoted. Thirdly the dichotomy which has been specifically introduced be ween the authority mentioned in cl.

(b) and te President mentioned in cl. ( c) of the proviso cannot be without significance. The Co"stitutio" makers apparently 'felt that a matter in which the hterest of the security of the Stae has to be con•idered should receive persoial attention of the President or the Head of the State and he should himself be satisfied that an inquiry unde' the substantive part di

cl. (2), Ar:. 311 was not -expedient for the reasons stated in cl. (c) of the proviso in the case of a particular servant. [467 D-G] The order imouned in the present case was therefore illegal, ultra vires, and void. If the functions or functions exercisable unde' cl. (c) of the proviso under consideration could not be dele•ated or allocaed to anyone else by the President, Art. 77(2) could not stand in th€1 way di the Court in the matter of examining the validity of the order. i (467 H-

468 B] Mori nm Deq etc. v. G•nera/ Ma11aer, N.£.P. Railway, ¥q/igaon, ~-u, [1964]5 S.C.R. 683, 731, 732 and lavanti'n/ Amr; t. Lal' Shodhan

>.~"I. N. Rana & Ors., [1964]5 S.C.R. 294, 307, 308, applied.

CIVIL APPELL/I.TE JURISDICTION : Civil Appeal No. 576 of A 1969.

Appeal from the judgment and order dated December 11, 1968 of the Delhi High Court in Civil Writ No, 1440 of 1.967.

A. S. R. Chari, S. K. Mehta, K. L. Mehta and K. R. Nagaraja, B for the petitioner.

S. T. Desai and R. N. Sachthey, for respondents Nos. 2, 3 and

S. P. Nayar, for respondents Nos. 1, 4 and 5.

S. K. Mehta and K. L. Mehta, for the iintervener.

The Judgment of the Court was delivered by

Grover, J. This is an appeal by cei:tificate from a common judgment of the Delh_i High Court which disposed of a batch of

14 petitions under Art. 226 of the Constitution.

The question involved is of importance and relates to the exercise of powers expressly conferred on the President by clause (c) of the proviso D to Art. 311 (2) of the Constitution.

On 14th April, 1967, the appellant and 1 i other members of the Ddhi Police Force were dismissed from service.

The order dismissing the appellant is reproduced below :

ORDER

E "Whereas, you Shri Sardari Lal, Sub-Inspector, Delhi Police No. 331 /D, Police Station Kamla Market, Delhi hold your office during the pleasure of the President, and

Whereas the President is satisfied that you are unfit to be retained in the public service and ought to be dismissed from service, and

Whereas the President is further satislied under sub-clause (c) of proviso to clause (2) of article 311 of the Constitution that in the interest of the security of the State it is not expedient to hold an inquiry,

Now, therefore, the President is pleased to dismiss you from service with immediate effect.

By order and in the name of the President of India

Sd/-

(B. Venkataraman) H Joint Secretary to the Government of India in the Ministry of Home Affairs."

(((

• .

It was common ground before the High Court and has not been disputed before us that the President had no cccasion 'to deal with the case or the appellant himself and the order was made by Shri Venkataraman, Joinr Secretary to the Government of India in the Ministry of Home Affairs. It was claimed by him that he was competent to make the order by virtue of the authority which he derived under the Government of India (Allocation of Business) Rules, 1961 made under Art. 77(3) of the Constitution. Before the High Court, the controversy was confined to the narrow point whether the function which is to be performed 'by t11e President under clause (c) of the proviso to Art. 311(2) could be performed by the authority to whom such function had been allocated under the aforesaid Rules.

The High Court negatived the contention raised on behalf of the appellant that such a function could not have been delegated by the President to any other authority. The High Court also relied on the provisions of Art. 77(2) which provides for the authentication of orders made in the name of the President.

D Under Art. 53(1) the Executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution.

Art. 77(1) lays down that all executive action of the Government of India shall be expressed to be taken in the name of the President. Clause (3) of that Article enables the President E to make rules for the more convenient transaction of the business o.f the Government of India. Chapter I of Part XIV contains inter alia the three main provision relating to the Services.

Articles 309, 310 and 311 may be set out to the extent necessary.

"309. Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Uni6n or of any State :

"Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in .the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act."

"310. (1) Except as expressly provided by this Constitution, every person who is a member of a defence service or of a Civil service of the Union or of an all- India service or holds any pos1 connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the G, overnor of the State.

(2) ,,

"311. (I) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed lor reduced in rank except afrer an inquiry in which he has been informed of the charge against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to im.J?OSe on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry :

Provided that this clause shall not apply-

(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led t~ his conviction on a criminal chaige;_or

"(b) where the authority empowered to dismiss or . remove a person or io reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or

(c) where the President or the Governor, as the case may be, is satisfied that , in the interest of the security of the State it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to

h?d such inquiry as is referred to in clause (2), the dec1s10n thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."

I ~

"· B

" ..

These Articles have come up for consideration before this Court in several cases and in connection with diverse points. The view that has been taken with regard to their true content, scope and inter connection and the nature of the power exercisable under them is that while Art. 310 provides for the tenure at the pleasure of the President or the Governor, Art. 309 enables the Legislature or the Executive as the case may be to make any law or rule in regard inter a/ia to conditions of service without impinging upon the overriding power recognised under Art. 31,0 tead with Ari.

311. The power to dismiss a public servant at pleasure is outside the scope of Articles 53 and 154 of the Constitution and cannot be delegated by the President or the Governor, to .a subordinate officer and can be exercised by him only in the manner prescribed by the Constitution.

This, ho:, vever, does not mean that a law cannot be made under Art. 309 or a rule cannot be framed under the proviso to the said Article prescribing the procedure by whcih. and the authority by whom the said pleasure can be exercised.' Moti Ram Deka etc. v. General Manager, N.E.F. Railways, Maligaan, Pandu. etc.(') Art. 311 contains the main safeguards for D civil servants in the matter of dismissal or removal or reduction in rank-while the procedure provided in clause (2) must be followed before the dismissal or removal or reduction in rank of a civil servant can be ordered, there are certain exceptions which have been made where it is not necessary to comply with the requirements of the subtantive part of clause (2) of Art. 311. These E exceptions are contained in the three clauses-(a), (b) and (c) of the proviso to clause (2).

As in the cases mentioned in the proviso, the pedure laid

don i!' clause (2) has no.t o be follow .. ed and the ?nl protection which JS conferred on a cwli servant cannot be ava1 of by him, F we , must look at them care.fully. A dichotomy hay en introduced m clause (b) and (c) with regard to the authority or the functionary who has to be satisfied about the matters stated therein. In clause (b), it is only the authority empowered to dismiss or re- . move a pern or to reduce him in rank who has to be satisfied

that it is not reasonably practicable to hold the inquiry provided G by clause (2) and his decision in terms of clause (3) of the Artcile shall be final. But in clause (c) it is the President or the Governor alone, as the case: may ~. who hs o be satisfied that in the inteest the secunty of die State 1t 1s not expedient to hold such inquiry.

II Now he argument on behalf of the appellant has proceeded ?n these hns. Art. 53(1) vests the Executive power of the Union

rn the President but Art. 77 deals only with executive action of

(I) (1964) 5 S.CR. 68) 11 pp. 731 .t: 732). 16-L807 Sup Cl/7t

the Government of India. There are several Articles under which A the President is required to be satistied before an action is taken.

Clause (c) of the proviso to clause (2) of Art. 311 is one of such provisions. The other provision which also deals with the question of satisfaction about the security of India being threatened etc. is the one contained in Art. 352 which relates to Proclamation of emergency. Art. 356 says that if the President on receipt of B a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the goverrunent of the State cannot be carried on in accordance wich the provisions of the Constitution, he may make a Proclamation as provided in the Article.

Art. 360' which contains provisions relating to financial emergency also employs the language "if the President is satisfied that a situac tion has arisen whereby t!he financial stability or credit of India or of any part of the territory thereof is threatened, he may by a Proclamation make a declaration to that effect." The enumeration of the aforesaid Ariicles is merely illustrative and no~ exhaustive. In such cases, it ls the President who has to be personally satisfied on the material placed before him about the various mat- , ters on which action has to be taken. Such functions may pertain D to the executive power of the Union which is vested in him under Art. 53(1) but these cannot fall within Art. 77(1) which is confined to .:xecutive ai:tion of the Government of_ India. . Apart from the Articles mentioned above, there are several other Articles which may also be considered in thjs connection. Ii would be best to refer to the observations in (2) Jayantilal Amrit Lal Shod- E han v. F. N. Rana and Others( 2 ),

"The power to promulgate Ordinances under Art. 123; to suspend the provisions of Arts. 268 to 279 dur• ing an emergency; to declare failure of the Constitutional machinery in States under Art. 356; to declare a financial ei; nergency under Ait. 360; to make rules regarding the recruitment and .:onditions of service of persons ap' pointed to posts and services in connection with the affairs of the Union under Art. 309-to enumerate a few out of the various powers-arc not powers of the Union Goverrunent; these are powers vested in the President by the Constitution and are incapable of being delegated or entrusted to any other body or authority under Art. 258(1). The plea that the very nature of these_ powers is snch that they could not be intended to be entrusted under Art. 258(1) to the State or officer of the State, and therefore, that clause must have a limited content, proceeds upon an obvious fallacy. Those powers cainnot be delegated under Art. 258(1) because they are not

(2) [1964] 5 S.C.R. 294 at pp, 307 to 308.

( ..

SARDARI LAL v. UNION.(Grover, /.)

the powers of th!,\ Union, and not because of therr special character. There is a vast array of other powers exercisable by the President-to mention only a few-appointment of Judg_es: Arts. 124 & 217, appointment of Committees of Official Languages Act; Art. 344, appointment of Commissions to investigatle conditions of backward classes; Art. 340, appointment of Special Officer for Scheduled Castes and Tribes: Art. 338, exercise of his pleasure to terminate employment : Art. 310, declarl!_tion that in the interest of the security of the State it is not expedient to give to a public servant sought to be dismissed an opportunity contemplated by Art. 311 (2)-these are executive powers of the President and may not be delegated or entrusted to another body or officer because they do not fall within Art. 258."

It seems to us that there is a good deal of substance in the argument raisd on behalf of the appellant.

On the principles which have been enunciated by this Court, the function in clause

(c) of the proviso to Art 311(2) cannot be delegated by the President' to any one else in the case of a civil servant of the Union.

In other words he has to be satisfied personally that in the interest of the security of the State, it is not expedient to hold the inquiry prescribed by clause (2). In the first place, the general consansus has been that executive functions of the nature entrusted by the Articles, some of whih have been mentioned before and in particular those Articles in which the President has to be satisfied himself about the existence of certain fact or state of affairs cannot be delegated by him to any one else. Secondly even with regard to clause (c) of the proviso, there is a spec.ific observatio!I in the passage extracted above from the case of Jayantilal Amrit Lal Shodhan that the powers of the Preside.nt under that provision cannot be delegated.

Thirdly, the dichotomy which has been specifically introduced between tt.e authority mentioned in clause

(b) and the President mentioned in clause (c) of the proviso cannot be without significance. The Constitution makers apparently felt that a matter in which the interest of the security of the State had to be considered should receive the personal attention of the President or the head of the State and he should be himself satisfied that an inquiry under the substantive part of clause (2) of Art. 311 was not expedient for the reasons stated in clause (c) of the proviso in the case of a particular servant.

We are not impressed with the reasoning of the High Court with reference to Art. 77(2). If the function or the power exercisable under clause (c) of the proviso under consideration could not be delegated or allocated to any one else by the President. Art.

77(2) will not stand in the way of the Court in the matter of examin- A ing the validity of the order.

For all the above reasons this appea1 is allowed and the judgment of the High Court is set aside.

The impugned order by which the appellant wa.s dismissed from service shall stand quashed on the ground that it was illegal,_ ultra vires and void. The appel- B !ant shall be entitled to costs in this court and the High Court.

G.C.

Appeal allowed.

SARDARI LAL

UNION OF INDIA & ORS

January 21, 1971

C. SHAH, C.J.

G. K. MITTER

K. S. HEGDE

A. N. GROVER

A. N. RAY, JJ.

Constitution of India

Art. 311(2)

s. 311(2)

Delhi Police Force

Art. 311(2)(c)

Government of India

Art. 311(2)

Arts. 309, 352, 356, 360

Jayanti

Art. 77(2)

CIVIL APPELL/I.TE JURISDICTION

A. S. R. Chari

S. K. Mehta

K. L. Mehta

K. R. Nagaraja

S. T. Desai

R. N. Sachthey

S. P. Nayar

Grover

Art. 226

Art. 311

14th April, 1967

Ddhi Police Force

Sardari Lal

article 311

B. Venkataraman

Venkataraman

Ministry of Home Affairs

Art. 77(3)

Art. 311(2)

Art. 77(2)

Art. 53(1)

Art. 77(1)

Articles 309, 310 and 311

Art. 310

Art. 309

Art. 31

Articles 53 and 154

Art. 309

Art. 311

Art. 311

Art. 53(1)

Art. 77

(1964) 5 S.CR. 68

Art. 311

India

Art. 352

Art. 356

Art. 360

Art. 53(1)

Art. 77(1)

Government of_ India

Art. 123

Arts. 268 to 279

Art. 356

Art. 309

Art. 258(1)

Art. 258(1)

Art. 258(1)

[1964] 5 S.C.R. 294

Arts. 124 & 217

Committees of Official Languages Act

Art. 344

Art. 340

Art. 338

Art. 310

Art. 311

Art. 258

Art 311(2)

Jayantilal Amrit Lal Shodhan

Art. 311

Art. 77(2)

Art.

77(2)


...

PURAN LAL SAH

STATE OF U.P.

January 21, 1971

[P. JAGANMOHAN REDDY AND I. D. DUA, JJ.]

Contract-Claim on basis of quantum meruit-When sustainable.

The Public Works Department of the respondent.State had issued a tender notice for the construction of a road. The appellant mspected the site, went to the place where stone for the construction was said to available, and after satisfying himsel'f submitted a tender below th~ estimates in the tender notice. It was accepted and a contract was signed.

The estimates in the tender notice were prepared by the P.W.D. on the basis that stone was available at a distance of 26 chains from the work spot. In fact, stone was available at that distance in the Ctonment area but for its removal permission of the Cantonment authortlles had to be taken. The appellant was not able to obtain the necessary permission and so, he had to get the stone from a much longer distance.

He requested for a higher rate but his request was rejected. Thereafter, he commenced work, and after the work was completed the Executive Engineer recommended his case for a higher rate .

By a subsidiary contract the appellant undertook to execute some additional work for the department. The quantity of work which the appellant actually performed was far in excess of what was mentioned in the contract. He claimed a higher rate of payment 'for such extra work also.

Since he did not get the higher rates he claimed, he filed a suit which was dismissed by the High Court in appeal.

In appeal to this Court, HELD. : (I) (a) In none of the clauses of the tender notice or conditions of contract or in any other document was there any assurance that if stone was not available at the distance of 26 chains the appellant would l-e paid higher rates. It was for the appellant to have satisfied himself before entering into the contract that the Cantonment authorities would permit him to take the stone. Sillce he commenced work aner his request for higher rate was rejected, it could not he said that the appellant was in any way induced by any assurance.

The Exutive Engmeer's letter was only recommendatory and did not establish a., Y right to obtain a higher rate. (472 G-H; 473 0-H; 475 CJ

(b) It could not be said that once stone was not available at a distance of 26 chains, the contract was at an end and that because the appellant had done the work, he should be paid on the basis of quantum meruit.

That remedy would be available only when the original contract had been

illscharged by the defendant in such a way as to entitle the plaintiff to regard himself as discharged from any further performance, and he elects to do so; but, where work is done under a contract persuant to its terms r.o amount can be claimed by way of quantum meruit. [475 G-H; 476 C-DJ

Adopi Parshad & Sons. Ltd. v. Union of India, [1960] 2 S.C.R. 793; followed.

(2) On the second item also the appellant could not succeed, because of cl. 12 of the contract. Under the clllll!IC the apP'!llant was bo11nd to perform all additional work which was l'lljuired of him on the same terms and conditions in which he undertook to do the main work.

Further,

paragraph 5 of the special instructions which fanned part and parcel of A the original contract provided that unless he gave notice that he was not prepared to do any extra work in excess of the quantity df the work mentioned in the contract plus 30 per cent of that quantity of work, ond

settled fresh rates for such extra work over 30 per cent, the appellant could not claim anything other than the rates mentioned in the contract.

;[476 E-H]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1687 of 1966.

Appeal from the judgment and decree dated March 8, 1965 <Of the Allahabad High Court in First Appeal No. 84 of 1954.

N. S. Biizdra and P. C. Kapur for the appellant.

G. N. Dixit and 0. P. Rana, for the respondent.

The Judgment of the Court was delivered by P. Jaganmohan Reddy, J. This appeal is by a certificate under Art. 133(1) (a) of the Constitution againsQ'the judgment and decree of the Allahabad High Court dated 8th March 1965 setting aside the decree of the Trial Court and dismissing the suit of the plaintifl'-appel!amt.

The appellant had submitted a tender to construct mile 3 of Nainital Bhowali Road at 13 per cent below the rates given in Schedule B to the notice issued by the Government of the United .Provinces on the 30th September, 1946. This tender was accepted and a contract was signed on 20th November 1946. It is alleged by the appellant that the rates llivqn in Schedule B were based on the calculation that stone reqmre.d for the road construction work would be available at a distance of 26 chains while as a matter of fact no stQne was available within that distance. The appellant had in fact to get stone from Gadhera and Bhumadar from ; a distance of 79 and 110 chains respectively. It is his contention that by reason of the non-availability of the stone and the definite understanding and assurance given by the local authorities of the P.W.D. that higher rates would be given for the extra work done Over and above the work provided in the contract he carried on the work. It was also alleged that during the construction work <Jn the road very hard shale rock came in the way mot originally provided for in the contract, as such he was entitled to get the costs for the work so done at the current rates from the P.W.D. which was not paid to him. In respect of these items of work done as

also due to his having done the work by bringing stone from a longer distance than was given in the estimates the appellant claim: ed Rs. 48,840-0-0odue as balance together with interest by way of damages at 12% amounting to Rs. 17,582-0-0, making a total of H R5. 66,422-0-0. When this claim was rejected the appella, nt gave

notice under Section 80 of the C.P.C. and thereafter filed a suit for the above amount.

The defendant respondent resisted the suit and pleaded that no assurance was given to the appella.nt by officers of the PWD as alleged; that the quantity of very hard shale shown in the plaint was incorrect and l!t any rate the contractor, under paragraph 5 of the special instructions must be prepared to execute the work at the original tender rate in excess of the given quantities of work upto 30% and if an increase in excess of 30% is ordered over the work the contractor must intiillate, tc; the Engineer-in-Charge in writir.g his wiHingnes~ or refusal to do extra work at the original tendered rates. If he refuses to carry on at the original rates he is required to settle fresh rate for increased work over 30% before doing the work.

On these averments the trial court held issues 1, 2, 6 ll!Ild 7 in favour 0f the appellant while issues 3, 4 and 5 were decided

against him.

In the result a decree for a sum of Rs. 20,495/- for extra lead plus Rs. 1,663-14-0 for extra work done under the item very hard shale and Rs. 4,155/- interest by way of damages on Rs. 22,158-14-0 making a total of Rs. 26,313-14-0 was passed with interest at 3 % per annum. In appeal the High Court reversed the decree holding that ( 1) the employment of the figure 26 chans in the estimate was for no other purpose than that of calculation .. and if knowing that the same was available within 26 chains it rPWD) worked out its est!imates on that basis, it could not be held to have extended any assuranee much less guarantee to the contractors that they would get stone within that distance; (2) the plaintiff appellant performed the work required of him without exercising his right under paragraph 5 of the special instructions which gives the option to do the extra work in excess of30% but if he refuses to 11, o the extra work at the originally tendered rates he should settle fresh rates for increased work over 30% before doing the work which he failed to do.

In view of these finding~ against the appellat the appeal of the respondent was ai1owed und the suit dismissed but in the special circumstances of the case left the parties to bear their respective costs in both the Courts.

The two main questions in this appeal are : ( 1 ) Whether the estimate of the PWD formed part of the contract so as to be binding on both parties and whether any assurances were given to the appellant that he would be given higher rates for bringing the stone from places situated at 79 chaiins and 110 chains respectively; (2) Whether clause 5 of the special conditions of the contract was applicable to the extra item of work contained in Ex. B3 and whether he was entitled on the assurances given by the local officers to higher rate for the extra work done. Shri Bindra, learned Advocate for the appellant has referred us to ctauses 8, 11 and 14 of the notice calling for the tender as aiso to certain letters and passages in the evidence to substantiate his contention that the estimates of

A the PWD were part of the contract and that in any case &Ssui:ances were given to the appellant that whein he could not get stone from distance of 26 chains, to bring from chains 79 and 110 for which higher rates would be paid. It may be stated that the PWD of the United Provinces, as it then was, had issued a tender notice con• sisting of 16 paragraphs and the appellant was required to sign this tender notice in token of his having received it because ultimately B under clause 34 of .the conditions of the contract all papers signed by the parties to the contract and bond will be deemed to be part of the contract bond and have to be read as co11ditions to the contract. Clause 8, 11 and 14 of the notice to which reference was made are as follows :

8. All tenders should be on percentage rates above or below the rates given in the Schedule 'B'.

11. Items not provided in the Schedule B will be paid 'at current schedule of rate plus or minus the percent"

age above or below as tendered by the contractor whose tender is acdepted for this work.

14. Contractors are . advised to see the estimate, plans, specifications, special cQnditions prescribed and site of work before tendering.

It is obvious from these clauses that the rates are given in :Schedule B on the basis of certain plans and specifications. The E person intending to tenqer for the work was ruired to examine this material and also inspect the site before tendering.

These instructions were designed to make all those who were desirous Of obtaining the contract responsible for their acts so that it cannot be said that any mis-representation was made or they were misguided in any way; The contention of the learned Advocate for the appellant is that it was definitely stated in the estimates that F :stone was a..Yililable at 26 chains which repesentation was binding 'Ii; on the respondents and if no stcme was available within that distance he was entitled to claim higher rates if he had to get stone from places farther away.

In fact the appellant alleges that the Engineers assured him that he would be paid higher rates.

We may here observe that in none of the clauses of the notice or conditions of contract or in any other document is there any specific mention that stQne will be available at 26 chains nor is there any .assurance that if stone was not available within that distance the 'Contractor will be paid higher rates. The mere fact that

the estimates were prepared by the PWD on the basis of the stone H being available at 26 chains which respondents admitted as stated in the judgment of Civil Judge, Nainital, does 1not mean that there was any assijf@ce ar undertaking , given that stone would be avail-

---·

A able at that place. J!t fact it is not denied that stone was available within the distance of 26 Chains but it was in the area belonging to the Cantonment, for the removal of which permission of the Cantonment authorities had to be taken. Evidently the contractor was not able to obtain that permission. In our view it was upto the

contractor to have satisfied himself before entering into the contract that the Cantonment authorities would permit him to take stone from its jurisdiction just in the same way as permission will have to be taken from any private individual in whose land stone required for road building is fQund. If the contractor has failed successfully to negotiate with. the owners of land from which he could bring stone it cannot be said that the estimate prepared by the PWD on the basis that the stone was available at 26 Chains was a statement which amounted to an assurance or constituted a condition of the contract.

The appellant as P.W. I stated in his evidence: "Before giving offer I saw the estimates and plan. In the estimate it was written that the stone would be found within 26 Chains. On this basis estimate was prepared through the PWD. I enquired this from the Asstt. Engineer also. He too informed !!hat stone would be available within 26 Chains. On this basis I prepared the estimate ........ In the beginning of the year 194 7 I started work. I attempted to take out stones from within 26 Chains. The moment I started to take out stones, the Cantonment authorities checked me. For this act I was challaned, but I was acquitted. The ell\ire

area within 26 Chains was of the Cantonment." Further-on he says "I have seen the tender notice and I had gone through it; after that I signed it. Schedule B was attached to the notice. I signed it after going through it.

I submitted tender 13 % less than the Scheduled rate ...... before giving the tender I went tio that place and found that the stones were available within 26 Chains, when I wanted to take them out, I learnt that this was within the Cantonm!lllt boundary.

I sought permission to take out stones from the Cantonment! authorities, but it was disallowed."

~ ...... It is clear from this evidence tha:t the appellant before giving the tender inspected the site, went to the place where stone was said to be available and after satisfying himse!Lthat the stone was available he gave the tender. A perusal of the documentary evidence would also show that he actually commenced work after his request to al.low him higher rate was rejected which was long after the time when under the contract he was required to start the work. In fact just before the date fixed for the completion of the work, he had under Ex. B4 dated the 12th June 1947 made the following representation :

"That as agreed upon the contract deed of my contract Nainital Bhowali Motor Road Mile 3 the lead of stones for masonary

work is given only about half a mile. On inspecting the place I find it very difficult to get a quarry there as there is no stone at all. I am getting the stones from near the K. E. Sanitorium which falls at a distance of two aind a half miles from may place, as has already been brought to your and the C.E.'s kind notice. Therefore, you are requested kindly to allow me a lead of two and a half miles distance." On this the concerned authorities seem to have made the endorsement : "As lead and royalty is provided in the schedule B of the tender, the request cannot be acceded to.

Draft reply is put up". Accordingly by letter dated t!he 21st June 1947 he was informed as follows :.

"Reference your application dated 12th June 1947.

Please refer to item Nos. 6, 7, 8 and 9 of Schedule B attached with your tender and on which bas.is you tendred your rate in tliis connection. As the rates noted thereiin provides all -lead and royalty and there is no mention there 1hat the rate contains a lead for ! a mile, your request cannot be acceded to".

This correspondence shows that the appellant's claim to have extra lead was definitely rejected as untenable even before he started the work under the contract, as is apparent from Ex. B2 dated the 19th July '47. In that letter the appellant was being informed as follows :- ·

"Please note that since )!OU have signed the contract for the above work, the work must be started now in consultation with the Overseer-in-charge, Nainital Section.

The date of start and completion will be as follows :

Date of start-20 November 1946 Date of completion-19 July 1947".

It cannot therefore be said that the appellant was in ny way induced by any assurances given by the PWD authorities that they would give a higher rate for the extra leaci before. he c01nmenced work. The case of the appellant in these etters wasthat''no stone was available within half a mile while in his deposition.he gave a G contrary version altogether. Subsequently he seems to have become hopeful because in. the letter of the .Assistant Engineer dated 28th December 1948 it is stated:

"In the estimate lead for 26 Chains was provided on the assbmption that stone will be available within the • distance from the quarries in Cantonment areas. Later on when the work was in progress the Cantonment au- .thorities objected to quarrying stones from Cantonment land ...... "

No doubt the Executive Engineer in his letter ~:lated 15th June. 1950, Ex. 22 has recommanded the case of the appellant for a. higher rate as he. says "When the stones were not available from. the Cantonment area it seems that the contractor naturally was forced to bring them from quarries situated outside the Cantonment area" and he further says "If these quarries are the places from. where stones were actually obtaine_d then naturally the contractor is entitled to get the lead for the full quantity of stones brought by him to complete different items requiring the use of stones".

This letter seems to be a recommendatory letter by a subordinate to the high oft!cer but it does not in any way establish the right of the appellant to obtain a higher rate, nor does the evidence justify this conclusion. n our view neither the t~ and conditions of the contract nor the oral or documentary evidence justify the conclusion that the appellant was entitled to any extra lead.

Another argument was put forward by the learned Advocate for the ; tppellant which is also based on the SaµJ<:: assumption that the availability of the stone at 26 Chains was a condition of the contract namely that once stone was not available at 2oChains the contract was at an end and that because the appellant had done the work he should be paid on the basis of quantum meruit. This in our view is a far fetched argument and has no relation to the facts and circumstances of the case. Even assuming that the stand taken by the appellant that the availability of stone at 26 chains was a condition of the contract was justified, he had notwithstanding the rejection of his claim even before he .started the work, acquiesced in the stand taken by the respondents that he is not entitled to any higher rates, carried on and completed the contract as if there was no such condition. We therefore cannot understand the contention of the appellaillt'~ Advocate as to how the contract came to an end and who put an end to it. Even if at that stage the contract had Been put an end to by the respondents which is no one's case, as the appellant had not started the work no question of quantum meruit would arise. .The principie of quantum meruit is rooted in English law under which there were certain procedural advantages in framing an action for compensation for work done. In order to avail of the remedymder quanttlm meruit, the original contract must have been discharged by the defenda, nt in such a way as to entitled the plaintiff to regard himself as discharged from any further performance and he must have elected' to do so. The remedy it may be noticed is however, not available to the party who breaks the contract even though he may have parl!ially performed part of his obligation. This remedy by way of quantum meruit is 1'<'.5titutory that is it is a recompense for the value of the work done by the plaintiff ilu order to restore him

to the position which he weuld have been in if the contract had A never been entered into. In this regard it is different to a claim for damages which is a compensatory remedy aimed at placing the injured party, as near as may be in the position which he would have been in, had the other party performed the contract. This .Court had in 'fyl/s. Alopi Parshad & Sons Ltd. v. The Union of

India(') observed at page 809 : B

"Compensation quantum meruit is awarded for work done or services rendered when the price thereof is not fixed by a contract. For work done or services rendered persuant to the terms of a contract compensation quantum meruit cannot be awarded where the contract provides for consideration payable in that behalf'.

'Though in that case the basis of the principle was 1110t explained, it nonetheless lays down that where work is done under a contract pursuant to the terms thereof no amount can be claimed by way of quantum meruit. In the view we have taken on the facts of

the case we do not propose to examine the decisions cited at the p Bar in tfus behalf.

Th~ claim of the appellant for higher rates which in fact was by way of damages has been rightly disallowed by the High Court.

On the second question also the appellant cal1jllot succeed because under clause 12 of the contract Ex. BL the. plaintiff was bound to perform additional work which was required of him on E the same terms and conditions on which he undertook to do the work for which he tendered. It appears that by a subsidiary contract entered into between the appellant and the P.W.D. Ex. B3 on the 12th April, 1946, the appellant undertook •to execute some additional work for the Department. The quantity ofwork which appellant actually performed was far in excess of what was men- F tioned in Ex. B.3. The appellant tho;!refore claimed payment for the work done by him in excess of the quantitY mentioned in the contract plus 30% at the current rate as againSt the stipultaed rates. It was submitted on behalf of the State of U.P. before the High Court that under clause 12 of the contract Ex. Bl and paragraph 5 of the special instructiQns the plaintiff was not entitled to any amount in excess of what he had already been paid. This G contention was accepd because under the aforesaid clause 12 the contractor was bound to perform all additional work which was required of him on the same terms and conditions in which he imdert:ook to do the main work.

Paragraph 5 of the special instructions further provides as follows :

"Contractors must be prepared to do at their original ten~ rate work in excess of the given quantities

(I) [1%0] 2 S.C.R. 793.

of work upto 30% if an increase in excess of 30% is ordered over the work the contractor must intimate to the Engineer Incharge in writing his willingness or refusal to do extra work at the originally tendered rates. In the latter case he should settle fresh rate for increased work over 30% before doing the work".

These instructions being part and parcel of the original contract Ex. Bl would govern the parties. As such the appellant unless he gave notice under that paragraph that he is not prepared to do the extra work over the 30% at normal rates, he cannot claim anything other than at the rates mentioned in the contract, unless he had settled fresh rates for that extra work. There is no evidence nor is it claimed by the appellant that he had givqn any notice as required under paragraph 5 of the special instructions and since he did the work without fulfilling these requirements he is not entitled to claim any amounts at a higher rate for the extra work done. As neither of the contentions have force the appeal is dismissed but in the circumstances without costs.

V.P.S.

Appeal dismissed.

SAH

STATE OF U.P

January 21, 1971

P. JAGANMOHAN REDDY

I. D. DUA, JJ.

[1960] 2 S.C.R. 793

cl. 12

Allahabad High Court

N. S. Biizdra

C. Kapur

G. N. Dixit

. P. Rana

P. Jaganmohan Reddy

Art. 133(1)

Government of the United .Provinces

30th September, 1946

20th November 1946

Gadhera

Bhumadar

P.W.D.

Section 80

C.P.C

clause 5

Bindra

clause 34

Clause 8

Civil Judge, Nainital

The mere fact that

the estimates were prepared by the PWD on the basis of the stone H being available at 26 chains which respondents admitted as stated in the judgment of Civil Judge, Nainital, does 1not mean that there was any assijf@ce ar undertaking , given that stone would be avail-
·

A able at that place.

12th June 1947

21st June 1947

19th July '47

15th June. 1950

clause 12

12th April, 1946

clause 12

clause 12


BASUDEV HAZRA

MATIAR RAHAMAN MANDAL January 21, 1971

[P. JAGANMOHAN REDDY AND I. D. DuA, JJ.]

Bengal Ferries Act; 1886, s. 24--Scope of-If lessee in respect of tofls cmt be penalised even where he levies toll when person does not usev ferry but river-bed-Or when he levies charge in excess of prescribed rate.

The appellant was a leaseholder in respect of tolls of a public feay crossing the river Damodar. The respondent filed a complaint against him alleging that the appellant used to realise illegally 20 np per cart from

the cultivators who used to drive their carts across the dry bed of the river.

After hearing .of the respondent's complaint on November 29, 1964 the appellant realised double the amount of toll from the respondent.

The appella::it was therea'fter convicted for offences under sections 23 and 24 of the Bengal Ferries Act, 1885.

In revision, the Additional Ses..ions Judge recommended acquittal of the appellant in respect of his conviction under both the provisions. As to the conviction under s: 24, according to the Additional Sessions Judge, the collection of money from the people using the river bed and not the ferry might amount to extortion under the Indian Penal Code but it would not attract the provisions of s. 24.

Although the High Court accepted the recommend.ation with respect to the acquittal under s. 23, it rejected the reference in respect of the conviction under s. 24.

In the appeal to this Court by special leave, it was contended that the realisation of 40 np per cart from those who did not use the ferry could not as a matter of law fall within the mischief of s. 24. ·

HELD : dismissing the appeal.

Section 24 of the Bengal Ferries Act does not speak of taking toll in excess of the lawful limit only from those persons who use the ferry. This F Act was enacted for regulating ferries but that does not mean that an illegai demand under the pretext of claim by way of toll under \his Act, when it is not legally claimable, was not intended by the legislature to be pre>- hibited and made punishable by the language of s. 24. Demanding or receiving more than lawful dues and unduly delaying persons, animals, vehicles or things in crossing the river are both rendered , penal and punishable. Whether the person from whom the amount is demanded or received G is under no obligation to pay anything by way of toll while crossing the river bed or is bound by law only to pay 20 ps per cart as toll would thus be immaterial when payment is demanded or received on the pretext that it is due as toll when it is legally not so due. [181 C-Fl

To exclude cases like the present from the operatioµ of s. 24 would unduly restrict its effectiveness aq!f would indeed facilitate. illegal recoveries prohibited by it.

To~ that extent it would defeat the ob1ect and purpose H which this section is intended to achieve. [182 Al

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 171 of 1968.

Appeal by special leave from the judgment and order dated September 13, 1967 of the Calcutta High Court in Criminal Refere, nce No. 36 of. 1967.

D. N. Mukherjee, for the appellant.

B The respondent did not appear.

The Judgment of the Court was delivered by

Dua, J.

The appellant, Basudev Hazra, was a leaseholder in respect of tolls of the public ferry at Sadar Ghat on the outskirts of Burdwan town for crossing the river Daroodar. This lease was for a period of three years (August 14, 1963 to August 13, 1966): C Ex. 2.

On November 30, 1964 Matiar Rahman Manda! filed a complaint against the appellant in the court of the Sadar Sub-Divisional Officer (Judicial), Burdwan alleging that the appellant used to realise illegally 20 nP. per cart from the cultivators who used

to drive their carts across the dry bed of the river. The matter was reported to the S.D.0. who directed an enquiry.

This infuriated D the appellant. On November 29, 1964 the appellant realised double the amount of toll and on protesl and refusal by the complainant he was threatened with violence by the appellant.

The Magistrate trying the appellant for offences under ss. 23 and 24 of the Bengal Ferries Act, I of 1885 convincted him of both the olfences. The appellant was sentenced to a fine of E Rs. I 0/- under s. 23 and to fine of Rs. 20/- under s. 24 : in default of payment of fine in the formercase he was to undergo simple imprisonment for ten days and in the lattei: for 20 days.

On the appellant challenging his conviction on revision in the Court of the Sessioos Judge, the Additional Sessions Judge, Burd- F wan made a roference to the High Court recommending the appellant's acquittal. It was observed by the Additional Sessions Judge in his reference that accordiing to the appellant's defence the complainant's party were in fact usin~ the landing stage and the path constructed and repaired by him and, therefore, they were liable to pay the usual toll tax_. After reproducing s. 24 he adaect :

" ... the complainant's case as it appears from the petition of complaint and also from the evidence of the

rhree witnesses examined on the point, is that they do not take advantage of any of the facilities provided by

the lessee and that the lessee demanded toll from them even though they were using their own path. The defence as I have aady stated, was that the pathway and the landing stage belonged to the lessee and that, therofore, he was entitled to collect toll. Forgetting the de~

fence for the moment, it seems to me that no conviction

11/s 24 can be sustained on the case of the complainant as it is."

According to him the collection of mol).ey from the people using their own pathway might amount to extortion but it would not attract s. 24. We need not refer to the recommendation with respect to the appellant's conviction under s. 23 as this was accepted by the High Court and there is no appeal against acquittal under that section.

The High Court accepted the recommendation with respect to

the conviction under s. 23 and acquitted the. appellant of that offence. In regard 'to the conviction under s. 24 the High Court c observed that the trial Magistrate had found (i) that the appellant had .been realising toll charges in excess of the scheduled /rate of 20 ps. per cart and also realising such charges from persons who did not use the ferry an~ (ii) that though the complainant had not availed of the ferry and had taken the cart over the sandy bed of the river 40 ps. per cart were realised from him. These findings of fact were held not ope, n to re-examination on revision. The High D Court added that realisation of 40 ps. fell within the mischief of s. 24 which forbids every lessee from realising more than lawful toll even in cases in which he is entitled to demand ferry charges.

Repelling the argument that the present was a case of extortion and itrdid not fall withi~ the purview of s. 24 the 8:igh Court, after refem g to the c_omplamant's case, observed that 1t was a case of E illega' realisation of toll in excess, when the appellant was not entitled to realise it at all and not a case of extortion under the_ Indian Penal Code. The amount had been illegally demanded as a toll and that als_o in excess of permissible rate.

The reference with rt>spect to s. 24 was, as observed earlier, rejected.

The appellant has secured special leave to appeal under Art. 136 of the Constitution and his counsel Mr. D. N. Mukherjee has stremmsly contended that the realisation of 40 ps. per cart from those who do not use the ferry can not as a matter of law fall within the misdhief of s. 24 of the Bengal Ferries Act. His contention in essence is that unless someone actually uses a ferry no charges realised from him for permitting him to cross the river, even if the demand is made by way of toll, can attract the provisions of s. 24. The contention though prima facie somewhat attractive does not stand scrutiny. Section 24 reads as under :

"Penalty for taking unauthorised tolls, and for causing delay:

Every such lessee or other person as aforesaid asking or taking more than the lawful toll, or without due cause

delaying any person, animal, vehicle or other thing, shall be punished with tine which may extend to one hundred rupees."

It is obvious that this section does not speak. of taking toll in excess of the lawful limit only from those persons who use the ferry.

This Act was enacted f:Jr regulating ferries but that does not mean that an illegal demand. µnder the pretext of ch1im by way of toll under this Act when it is not legally claimable was not intended by the legislature to be prohibited and made punishable by the language of s. 24, Shri Mukherjee drew our attention to s. 5 of the Act in which "ferry'' is defined to include a bridge of boats, pontoons or rafts, a swing-bridge, a flying bridge, a temporary bridge and a landing stage. According to him, t'his definition suggests that it is only when a ferry is used and excessive charges rea-. lised that s. 24 would be attracted. l'he sublllission is difficult to accept. This definition which is not exh; mstive does not seem to us to control or otherwise to throw helpful light in the interpretation of s. 24. This section seems to have been designed in effect to protect the persons crossing the river against harassment and abuse of the privileged position which the lessee or other person authorised to collect the tolls of a public ferry occupies under the statute in the matter of control over the passage or pathway for crossing, fording or ferrying across the river.

Demanding or receiving more than lawful dues and unduly delaying persons, ani- E mals, vehicles or things in crossing the river are both rendered penal and punishable. Whether the person from whom the amount is demanded or received is under no obligation to pay anythiilg by way of toll while crossing the river bed or is bound by law only to pay 20 ps. per cart as toll would thus be immaterial when payment is demanded or received on the pretext that it is due as toll when it is legally not so due.

In either case s. 24 would seem F to be altrackd : this construction would serve to suppress the mischief at which this section appears to be aimed.

The question whether or not the appellant's case falls within !!he mischief of extortion as defined under the Indian Penal Code is not strictly relevant to the point arising in the controversy because if the appellant's case is covered by s. 24 of the Act then he is liable to be punished thereunder.

His liability to be prosecuted under the Indian Penal Code cannot by itself in law exclude the applicability of s. 24 to his case. The Additional Sessions Judge was, in our opinion. not quite right in observing that the defence that the accused was entitled to claim the toll may be ignored, because defence of an accused {>Crson can legitimately he taken into consideration while assessing the value of the evidence and judging the guilt or innocence of the accused. The Jppellanfs defence in this case would clearly tend to support the complainant's case that the amount received was demanded as toll which was an unlawful

.demand. To eX(:lude cases like the present from the operation of s. 24 would unduly restrict its effectiveness and would indeed faci- .litate illegal recoveries prohibited by it. . To that extent it would .defeat the object and purpose wllich this section is intended to achieve.

When the appellant's counsel took us through !be evidence we found that the appellant had also delayed the prosection witnesses without due cause in crossing the river in violation of B.

24. It is, however, unnecessary to pursue this aspect. Finally it may b~ pointed out that Art. 136 of the Constitution does not confer a right of appeal on a part!y. It only confers a discretionary power on this Court to be exercised sparingly to interfere in suitable cases where grave miscarriage of justice has resulted from 'illegality or from misapprehension or mistake in reading evidence c or frQm ignoring, excluding or illegally admitting material evidence.

The present case suffers from no such infirmity.

The appeal accordingly fails and is dismissed.

R.K.P.S.

Appeal dismissed.

L107 S.n ClfP)/ 71-2500-13-5 72-GIPF.

J \

BASUDEV HAZRA

MATIAR RAHAMAN MANDAL

January 21, 1971

P. JAGANMOHAN REDDY

I. D. DuA, JJ.

Bengal Ferries Act

s. 24

November 29, 1964

sections 23 and 24

Bengal Ferries Act, 1885

Indian Penal Code

s. 24

s. 23

s. 24

s. 24

Section 24

s. 24

s. 24

September 13, 1967

Calcutta High Court

D. N. Mukherjee

Dua

Basudev Hazra

November 30, 1964

Matiar Rahman Manda

ss. 23 and 24

s. 23

s. 24

Additional Sessions Judge, Burd- F wan

s. 24

s 24

s. 24

s. 23

s. 23

s. 24

s. 24

s. 24

Indian Penal Code

s. 24

Art. 136

D. N. Mukherjee

s. 24

s. 24

Section 24

s. 24

Mukherjee

s. 5

s. 24

s. 24

s. 24

Indian Penal Code

s. 24

s. 24

s. 24

Art. 136