Subba Rao, J. - (1.) 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, Ahemdnagar, in 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.
(2.) 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 sugar-cane consisting of 35 acres owned by him and about 65 acres of land taken on lease by him in Ahemdnagar 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 exploiting the said area where under the appellant had three fourths 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 S. 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, Ahemdnagar, against the State of Bombay for a declaration that the plaintiff was entitled to the supply and use of the water from the tail outlet of Distributary No. 17 of the Canal to irrigate 100 acres of basic cane land in the concentrated area described in Schedule II 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 S. 175(3) of the Government of India Act, 1935, and that, in any view, the appellant could not legally get the benefit of the agreement under S. 30 of the Bombay Irrigation Act, 1879. On the pleadings as many as seven issues were framed reflecting the contention 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.
(3.) 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, where under 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 as he was willing to pay the rates for such supply on volumetric basis. (2) As under the compromise decree between Karale and the appellant the said block of land was transferred to the appellant, the right under the agreement for the supply of canal water was also transferred to him under S. 30 of the Bombay Irrigation Act. 1879 (Bombay Act No. 7 of 1879), hereinafter called the Act. (3) Section 175(3) 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 S. 175 (3) of the Government of India Act, 1935; (ii) the agreement contemplated by S. 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 S. 175 (3) of the Government of India Act, 1935; and (iii) that apart, the express "agreement" in S. 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 S. 175(3) of the Government of India Act, 1935.;