Supreme Court of India
STATE OF PUNJAB AND ORS.versusOM PARKASH BALDEV KRISHAN
- Citation
- 1988 INSC 235
- Decided
- 23 August 1988
- Disposal
- Dismissed
- Bench
- SABYASACHI MUKHERJI
Holding
A contract entered into on behalf of the Governor must satisfy three conditions—expressly be made by the Governor, be executed, and be executed by persons and in the manner authorized by the Governor; otherwise, no valid contract exists.
Summary
The Punjab Public Works Department invited tenders for a high‑level bridge. The lowest bidder, Om Prakash Baldev Krishan, was told by the Executive Engineer that his tender was accepted and was asked to sign a pending agreement within ten days, but no agreement was ever executed and the acceptance was not made in the name of the Governor of Punjab as required by Article 299(1) of the Constitution. The contractor later withdrew, was penalised for not commencing work, and sought arbitration, which was dismissed by a Sub‑Judge who held a contract existed. The Punjab High Court reversed, holding that no valid contract existed because the constitutional formalities were not complied with. On appeal, the Supreme Court affirmed the High Court, reiterating that a contract entered into on behalf of a State must (i) be expressed to be made by the Governor, (ii) be executed, and (iii) be executed by persons and in the manner authorized by the Governor; absent these, no contract can arise and the statutory formalities cannot be waived. The appeal was dismissed with costs.
Issues considered
- Whether a contract for public works entered into without an expression that it is made by the Governor and without execution in accordance with Article 299(1) is valid.
- Whether the statutory formalities under Article 299(1) and the Government of India Act can be waived or dispensed with by the parties.
- Whether the acceptance of a tender by an Executive Engineer suffices to create a binding contract on behalf of the State.
- Whether estoppel or ratification can validate a contract that contravenes Article 299(1).
Legislation cited
- Arbitration Act, 1940s. Section 33
- Constitution of Indias. Article 299(1)
- Government of India Act, 1935s. Section 175(3)
Subjects
Contract lawArticle 299Government contractsPublic policyStatutory formalitiesWaiverArbitrationTender acceptance
Judgment
A STATE OF PUNJAB AND ORS.
v.
OM PARKASH BALDEV KRISHAN
AUGUST 23, 1988
B
[SABYASACHI MUKHARJI AND L.M. SHARMA, JJ.)
Constitution of India, 1950: Article 299-Contracts to be made in
the name of President/Governor-Requirement based on public
policy-Protection of general public-Cannot be waived or dispensed
with. '
a
The tender submitted'by the respondent firm for the construction
of a high level bridge was accepted by the Executive Engineer and they
were asked to take up the work in hand, and also to sign the agreement
which was under preparation, within IO days. No such agreement was,
D however, signed nor had the tender of the respondent been accepted on
behalf of the Governor of Punjab, which was a mandatory constitu-
tional requirement.
The respondent subsequently withdrew his offer on the ground
that no binding agreement had been signed between the parties. The
Engineer-in-charge levied a penalty on the respondent for failure to,
B start the work. The Superintending Engineer then forwarded the claim
for arbitration. The respondent's application under section 33 of the
Arbitration Act, 1940 was dismissecl by the Sub-Jndge who came to the
conclusion that the Executive Engineer was authorised to accept the
tender. The. High Court, in revision, held that no contract in conformity
with Article 299(1) of the Constitution, had been entered into.
It was inter a/ia urged on behalf of the appellants that a valid and
binding contract might come into existence even without a formal
agreement duly signed by the parties.
d Dismissing the appeal, it was,
HELD: (I) A contract entered into by the Governor must satisfy
three conditions, namely (i) it mnst be expressed to be made by the
Governor; (ii) it must be executed; and (iii) the execution should be by
such persons and in such manner as the Governor might direct or
JI! authorise. [543F-G]
536
STATE OF PUNJAB v. OM PRAKASH IMUKHARJI, J.I 537
State of Bihar v. M/s. Karam Chand Thapar, [196211 S.C.R. 827; A.
and Seth Bikhraj Jaipuri<Yv. Union of India,. [1962].,2 S.C.R. 880,
referred to .
. ' (2) ,The provisions of section 175(3) ofthe Government of India
Act and the corresponding provisions of Article 299(1) of the Constitu-
tion have not been enacted for the sake of mere form but they have been
enacted for safeguarding the Government against unauthor,ised con-
tracts. These provisions are embodied on the ground of public policy-
on the ground of protection of general public~and these formalities
cannot be waived or dispensed with. At the same time there cannot be
any question of estoppel or ratification in a case where there is contra-
vention of these provisions. [545A-C]
c
Union of India v. A.L. Rallia Ram, [1964] 3 S.C.R. 164 and
Timber Kashmir Pvt. Ltd. v. Conservator of Forests, Jammu and Ors.,
[1977] 1 S.C.R. 937. .
Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. ·v. D
Sipahi Singh and Ors., [1978] l S.C.R. 375; Mulamchand v. State of
Mahdya Pradesh, l,1968] 3 S.C.R. 214 and Union of'lfldia v. Mis.
Hanuman Oil Mills Ltd., [1987] Suppl. S.C.R. 84, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 776
of 1988. E
"'
From the Judgment and Order dated 16. 7 .1987 of the Punjab
and Haryana High Court in Civil Revision No. 1993 of 1986. ··•· ·
· C.M. Nayyar for the Appellants.
F
Dr. Y.S. Chitale, T.V.S.N. Chari, Ms. Vrinda Grover and Mrs.
Smita Rao for the Respondent.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J ..This appeal involves a short G
question and the. field is more or less covered by the constitutional
provisions as well as the authorities of this Court. The Executive
Engineer (Construction Division No. 1) PWD B & R Branch, Patiala,
invited tenders for the work called "Construction of high level bridge
over Tangri Nadi in Mile No. 19/5 of Patiala-Pehewa Road". The
respondent in response to the said invitation submitted the tender for H
538 SUPREME COURT REPORTS (1988] Supp. 2 S.C.R.
A the aforesaid work, which was opened on 7th October, 1975. The
Executive Engineer informed the respondent on that date, who hap-
pened to be the lowest tenderer and before the tender could be finally
considered, that the drawings in triplicate be submitted to the Chief
Engineer PWD B & R, Suptd. Engineer, PWD B & Rand Executive
Engineer Construction Division No. 1 PWD B & R Branch, Patiala.
:S The tend.er, however, was recalled in February, 1976 by the Executive
Engineer Construction· Division No. 1. The respondent again submit-
ted tender on 3-lst August, 1976. The Executive Engineer informed the
respondent telegraphically that the tender submitted by him had been
accepted and asked the respondent to take up the work in hand. This
was followed by the letter dated 31st August, 1976 from the Executive
C Engineer. It was contended that the telegram as well as the letter
mentioned hereinbefore revealed that the tender of the respondent
was not accepted by the Governor of Punjab, as it was mandatory
under the Constitution in order to amount to a valid acceptance and to
create a binding contract between the parties. The respondent. how-
ever, withdrew the offer on 6ih November. 1976. ·On 22nd
D November, 1976 the respondent-contractor in its letter made it clear
that no agreement had been signed between the parties. In reply to the
letter dated !st December, 1976 from the Executive Engineer, the
respondent vide letter dated 6th December, 1976 reiterated and
repeated that legal infirmity could not be met by the considerations
as made by the appellant. But on 15th April, 1980, the Executive
E Engineer intimated th~ respondent that as he had failed to start the
work, and he became liable for action under clause 2 of the agreement.
The Jetter further stated that the Engineer-in-charge on behalf of the
Governor of Punjab had levied a penalty of Rs.2,55,000. The above
position, however, was not accepted by the respondent and he advised
the appellant to settle the matter in Court. The Suptd. Engineer PWD
p B & R Patiala, then forwarded the claim of Rs.4,56,040 for arbitration
and asked the firm to submit the reply in duplicate within 30 days from
the issue of the letter. Reply was sent by the respondent to the effect
stating that no valid contract in respect of the construction of high level
bridge over river in Mile No . 19/5 of Patiala-Pehewa Road, ever came
into existence between the parties. The Arbitrator again on 2nd July,
G 1983 issued a letter after a lapse of one year and the same was replied
more or less in the same manner. The respondent filed an application
under section 33 of the Arbitration Act, 1940 (hereinafter called 'the
Act'). The learned Sub-Judge !st Class, Patiala, on 4th April, 1986
dimissed the application of the respondent with costs. It was
contended before him that there was no valid acceptance of the offer
H made by the respondent herein and, therefore, there was no valid
STAIB OF PUNJAB v. OM PRAKASH [MUKHARJI, J.] 539
contract. It was·contended that no agreement between the parties as
A
· required· by law, had-been broughi into existence. Therefore, there
was no question of breach of agreement. The learned Sub-Judge.com-
mented that no oral evidence was adduced on behalf of the respon-
dent. The learned Sub Judge came to the conclusion that there was a
valid offer. He observed that the only point that required considera-
tion was whether the acceptance regarding the allotment of work of B
construction of high level bridge over river Tangri on Patiala Pehewa
Road was issued on behalf of the Governor of Punjab or not. The
learned Judge came to the conclusion after discussing various evidence
that the Executive Engineer was authorised to accept tender. He refer-
red to various clauses. The learned Judge noted that it was clearly laid
down in the tender itself that the tender together with acceptance
thereof would constitute a valid and binding contract between the
c
parties. ·The relevant oondition of the tender, that is, condition No. (
6 read as follows:
"The tender together with letter of acceptance thereof shall
constitute a binding contract between the successful D
tenderer and the department and shall form the foundation
of rights and obligations of both the parties."
The learned Sub-Judge recorded that the above tender form was
· duly signed by the respondent artdthe appellant. On an analysis of the
evidence on records, the learn~ Judge came to the conclusion that E
there was a valid contract and accordingly the application under sec-
tion 33 of the Act was dismissed with costs. There was a revision to the
High Court. The High Court after discussing the relevant evidence
came to the conclusion that there was no valid contract. The learned
Judge of the High Court noted that in the acceptance letter Ext. P. 7
and Ext. RW 1/14, the Executive Engineer had required the respon- F
dent at the end to sign the agreement which was under preparation
within ten days. No such agreement was ever signed. Tha.t position is
undisputed. Therefore, the High Court was of tlie view that no con-
tract in conformity with Article 299(1) of the Constitution, which was a
constitutional requirement in this case, has been entered into and
came to the conclusion that there was no contract between the parties. G
In that view of the matter the revision was allowed and the order
passed by the trial Judge was set aside. This appeal arises from the said
decision.
Shri C.M. Nayar advocate for the appellant contended that there
was a valid and subsisting contract. He strenuously a.rgued that there H
540 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R ..
A was authority for the Executive Engineer to enter into the contract on
behalf of the Governor. He drew our attention to clause-2. 76 of the
Public Worl<s Department Code which provides as follows:
"2. 76. No authority lower than an officer in charge of a
B Sub-Division can accept any tender or make a contract for
public works. The different classes of deeds, contracts and
other instruments which may be executed by this Depart-
ment and the authorities empowered to execute them are
detailed in Appendix I, while the financial limits up to
which these authorities are authorised to determine the
terms of deeds, are set forth in the Book of Financial
c Powers."
He also referred to the Appendix I (referred in paragraph 2. 76)
classifying the deeds, contracts and other instruments. It.appears that
the Executive Engineer of the buildings and roads was authorised' to
enter into these contracts. He, therefore, sought to submit that by
0
virtue of that authority if any contract had been entered into then that
amounted to entering into contract in accordance with Article 299( 1)
of the Constitution. It appears that to understand this problem, it is
necessary to deal with some other documents. Our attention was
drawn to a letter from the Executive Engineer to the .contractor, which
stated, inter atia, as fdllows:
E
"As per your modified lumpsum bids received vide your
letter No. CM/3-T/OPBK dated 24.3.76 alongwith the
Conditions mentioned in the Original Tender received vide
your letter No. CH/3-T/OPBK/3341/76 .dated 26.2.76 and
also further modifk:ition of the same11s mentioned in your
F
letter No. CM/3-T/OPBK/3503/76 dated 24.3,76.and letter
No. CM/3-T/OPBK/3930/76 dated 6.8.76, the work of con-
struction of High Level Bridge over ·tangri Nadi in Mile
No. 19/5 of Patiala Pehewa Road is hereby allotted to you
on lumpsum basis for an amount of Rs.25.50 Lacs (Rupees
Twenty five lacs and fifty thousands) with a time limit of 24
G months from the date of issue of this letter coupled with the
following conditions." ·
The said letter thereafter set out those conditions. It is, however,
not. necessary to set out these. The la~t two paragraphs of the said
Jette£ are relevant and read as follows:
H
STATE OF PUNJAB v. OM PRAKASH [MUKHARJl, J.I 541
"The work may -be taken in hand immediately after getting A
the detailed structural drawing and designs duly approved
by this Department.
Please attend this office within 10 days to sign your
.
agreement which is under preparation."
B
This was signed by the Executive Engineer and •ihe signatures
appeared as follows: · ' •'·
"Sd/-··
30/8
Executive Eng[neer,
Construction Division No. 1,
c
P.W.D. B &R Br. Patiala.
Endst. No:
Dated:
D
Copy of above is forwarded to ( 1) Sub Divisional
"Engineer, Const. Sub Division No. 5 P.W.D. B & R Br.,
Patiala for information and necessary action. He is reques-
ted to get the work started immediately as per detailed
terms and conditions which may be thoroughly studied.
E
(2) Divisional Acctt. for information & n1a.
Sd/-
Executive Engineer,
Construction Division No. 1,
P.W.D.B&RBL,Patiala." F
Dr. Chitale appearing for the respondent drew our attention to a
letter signed by the Executive Engineer which reads as1ollows:
"Regd. A.O.
Endsi. No. 4466 Dated 24.8.76 G
Copy confirmation by post is forwarded to M/s Otn
Parkash Baldev Krishan, New Delhi-5 for their informa-
tion and necessary action. Their tender for lutnpsum
amount of rupees thirtyone lacs and fifty thousands for
construction _of high level bridge. over markahda river crcis' ti
542 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.
sing Patiala Pehewa road has been accepted. Please take
A
the work in hand immediately. Regular sanction follows
separately.
Sd/-
'Executive Engineer"
B Shri R.L. Bansal, Divisional Accountant Construction, in his
depo_sition before the Trial Court stated that there was no document
concerning this contract which had been issued or made in the nam·e of
the Governor of Punjab according to the records. He also admitted in
his deposition that the letter of acceptance had not been issued in the
name of the Governor of Pun_jab. He reiterated that he was entitled to
C issue acceptance on behalf of the Governor.
It was urged on behalf of the appellants by Shri Nayar that a
valid binding contract might come into existence even without a formal
agreement duly signed by the parties. According to the learned advo-
cate if one party made an offer in writing and the same was accepted by
D a letter to the first party, these two documents might be sufficient to
spell out a contract. Assuming that it is right, it is not necessary for the
purpose of this appeal in the view we have taken to decide that the
tender submitted l!Jld the Jetter sent by the Engineer did not create in
the facts of this case a binding contract. The acceptance letter, at least,
must conform to the requirements of Article 299(1) of the Constitution
£ · and siiice this letter was indisputably not in the name of the Governor,
this contention cannot be accepted. The acceptance letter or any work
letter sent to the respondent had been written by the Executive
Engineer on behalf of the Governor. Therefore, it is not possible to
accept the contention that there was a valid binding contract.
Ji' Shri Nayar further sought to urge that Article 299 was for the
Governments' protection in order to protect it against unauthorised
contracts being entered on behalf..of the Government. In the instant
case, according to Shri Nayar, the Executive Engineer had issued the
tender and had accepted the tender, authority to accept the tender on
behalf of the Governor, is thus established. Shri Nayar submitted that
a once that authority is established and it is made clear from the evi-
dence that the authorities have acted on that basis, then it must be
presumed that' the contract had been entered into in. accordance with
the provisions of Article 299 of the Constitution. In view of the clear
position in law; it is, however, not possible to accept this submission.
H Clause (1) of Article 299 of the Constitution provides as follows:
STATE Of,,_PUNJAB v. ·OM PRAKASH iMuKHARJI, J.] 543
"(1) All contracts ii,iade in the exercise· ot the executive
A
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 ex-
ecu.ted on behalf of the President or the Governor by such
persons and in such manner as he may direct or authorise." B
In this case, the Executive Engineer has signed the contract but
nowhere in the contract it was offered and accepted or expressed to be
made in the name of the Governor. The constitutional requirement
enjoined in Clause (1) of Article 299 of the Constitution is based on
I public policy. This position has been made cle.ar by this Court in The
) State of Bihar v. Mis. Karam Chand Thapar & Brothers Ltd., [1962] 1 c
S.C.R. 827. There a dispute between the respondent and the Govern-
ment of Bihar over the bills for the amount payable to the company in
respect of the construction. works carried out by it for the Government
J was referred to arbitration. Section 173(3) of the Government of India
Act; 1935 provided as follows: D
"Subject to the provisions of this Act with respect to the
Federal Railway authority, all contracts made in the exer-
cise of the executive authority of the Federation or of a
province shall be expressed to be made by the Governor-
General, or by the Governor of the Province, as the case E
J may be, and all such contracts and all assurances of pro-
perty made in the exercise of that authority shall be
executed on behalf of the Governor-General or Governor
by such persons and in such manner as he may direct or
authorise."
F
This Court reiterated that under that section a contract entered
into by the Governor of a Province must satisfy three conditions,
namely, (i) it must be expressed to be made by the Governor; (ii) it
must be executed; and (iii) the execution should be by such persons
and in such manner as the Governor might direct or authorise. These
three conditions are required to be fulfilled. This position was G
reiterated. by this Court again in Seth Bikhraj Jaipuria v. Union of
India, [ 1962] 2 S.C.R. 880. This Court explained that three conditions
as mentioned in State of Bihar v. MIS. Karam Chant! Thapar (supra)
had to be fulfilled, and further reiterated that the object of enacting
these provisions was that the State shoul8 not be saddled with liabrlilv
for unauthorised contracts and, hence, it was_provided that the co.JI- ft. '
544 SUPREME COURT REPORTS · [1988] Supp. 2 S.C.R.
tracts must show 6n their faces that these were made by the Governor-
A
General and executed on his behalf in the manner prescribed by the
person authorised. It is based on public policy. No question of waiver
arises in such a situation. Jf once that position is reached, and that·
position is well-settled by the authorities over a long lapse of time, no
question of examining the purpose of this requirement arises. In Union
B of Inaia v. A.L. Rallia Ram, [1964] 3 S.C.R. 164, this Court again
reiterated that the agreement under arbitration with the Government
· must be in accordance with section 175(3) of the Government of!ndia
Act, 1935. These principles were ·again reiterated by this Court in
Timber Kashmir Pvt. Ltd. etc. etc. v. Conservator of Forests, Jammu &
Ors. etc., [1977] 1 S.C.R. 937. There, the Court was concerned with
section 122( 1) of the Jammu & Kashmir Constitution which corres-
c ponded to Article 299( 1) of the Constitution of India. In that case all
the three applications filed by the respondent State 'for a reference to
an· arbitrator under section 20 of the Jammu & Kashmir Arbitrator
Act; were dismissed by a single Judge of the Jammu & Kashmir High
Court on the ground that the arbitration clause was, in each case, a
Jj part of an agreement which was not duly executed in accordance with
(
the provisions of section 122(1) of the Jammu & Kashmir Constitution
which corresponded to those of Article 299(1) of the Constitution of
India. But the Division Bench allowed the appeals holding that if
contracts were signed by the Conservator of Forests in compliance
with an order of the Government, the provisions of section 122(1) of
E the Jammu & Kashmir Constitution could not be said to have been
infringed. This Court held that the contract could not be executed
without the sanction. Nevertheless, if the sanction could be either
1
[
expres sly or impliedly given by or on behalf of the Government, as it
could, and, if some acts of the Government could fasten some obliga-
tions upon the Government, the lessee could also be estopped from
f questioning the terms of the grant of the sanction even where there is
no written contract executed to bind the lessee. But, once there has
been a valid execution of lessee by .duly authorised officers, the docu-
ments would be the best evidence of sanction. In that case, the con-
tracts were executed on behalf of the Government of Jammu & Kash-
mir. The only question witb which the Court was concerned in that
O case was whether the contracts executed by duly authorised officials
had been proved or not. It was held that it was so proved .
.. In Bihar Eastern Gangetic Fishermen Co-operative Society Ltd.
v. Sipahi Singh and others, [1978] 1 S.C.R. 375 where this Court relied
on a previous decision in Mulamchand v. State of Madhya Pradesh,
Fl [ 1968] ~ S.C.R. 214 and reiterated that there cannot be any question of
STATE OF PUNJAB v. OM PRAKASH [MTJKHARJI, J.] 545
estoppel or ratification in a case where there is contravention of the A
provisions of Article 299(1) of the Constitution. The reason is that the
provisions of section 175(3) of the Government of India Act and the
corresponding provisions of Article 299(1) of the Constitution have
not been enacted for the sake of mere fonn but they have ·been enacted for
safeguarding the Government against unauthorised contracts. The
B
provisions are embodied in section 175(3) of the Government ·of India
Act and Article 299(1) of the Constitution on the ground of public
policy-on the ground of protection of general public ..... and these
_.- · formalities cannot be waived or dispensed with. This Court again
reiterated the three conditions mentioned hereinbefore. The same
, principle was again.reiterated by this Court in Union of India v. Mis.
Hanuman Oil Mills Ltd., and others, [ 1987] Suppl. S.C.C. 84. c
In the instant case, we have referred to letter dated 31st August,
1976 which towards the end stated that the parties to attend the office
within 10 days to sign the agreement which is under preparation. It is
common ground that no such agreement was signed.
In the aforesaid view of the matter the High. Court was right in
the view it took and the submissions made on behalf of the appellants
cannot be entertained. The appeal fails and accordingly dismissed with
costs.
R.S.S. Appeal dismissed.
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