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1. This appeal by the plaintiff appellant is directed against the judgment and order passed in Title Suit No. 62 of 1966 and it arises out of a proceeding for passing a decree in terms of the award made by the Arbitrator and filed by him in Court.

2. The plaintiff appellant Raipada Pramanik was appointed a clearing and storing agent for C. I. Sheet, B. R. K. Coal and other relief materials for the area under the Subdivisional Controller, Food and Supplies, Krishnagar on the basis of a written agreement executed on 22nd of February, 1967 by him and the Subdivisional Controller, Food and Supplies, Krishnagar, Nadia on behalf of the Governor, State of West Bengal. In the said agreement it was stipulated that the petitioner will store the relief materials in his godown for which he will be paid commission at a certain rate mentioned therein. In Clause 21 of the said agreement it has been provided that either of the parties shall be at liberty to terminate the said agreement on giving one month's notice in writing of his intention to so terminate the agreement. In Clause 23 of the said agreement it has also been provided that in the case of difference or dispute arising under the agreement the same shall be referred to two Arbitrators one to be nominated by the Government and other by the agent that is the plaintiff and an umpire to be appointed by the Arbitrators in writing before proceeding with the reference and the decision of the Arbitrators or the umpire as the case may be shall be final and conclusive and the provisions of the Indian Arbitration Act, 1940 and rules framed thereunder shall be deemed to apply to this contract. The State of West Bengal, the defendant neglected to pay the bills submitted by the plaintiff on account of the storage charges amounting to Rs. 52,108.13 paise in spite of repeated reminders. The plaintiff finding no other alternative had to appoint Sree Somnath Chatterji, Barrister-at-law, as his arbitrator in accordance with the provisions of Clause 23 of the said agreement and sent a notice dated 8th of January, 1962 to the Secretary, to the Government of West Bengal, Food and Supplies Department, District Magistrate and the Sub-Divisional Controller, Food and Supplies, Krishnagar, Nadia to nominate its arbitrator to settle the above deputes and differences which have arisen between them within 15 days after the service of the said notice. But in spite of the receipt of the said notice the defendant, that is, the State of West Bengal did not take any steps to nominate their arbitrator. As such in accordance with the provisions of Section 9 of the Indian Arbitration Act, the plaintiff appointed Sri Somnath Chatterji, Bar-at-law as the sole arbitrator for decision of the said dispute. The arbitrator served several notices upon the parties to the dispute and held several meetings. On 11th of August, 1962, the arbitrator made an award for a sum of Rs. 51 398.62 paise in full and final settlement of the dues of the plaintiff against the defendant under the said agreement and after due publication the said award was signed and sealed by the Arbitrator. The Arbitrator then filed this award in Court in compliance with the provisions of Section 14 of the Indian Arbitration Act. The petitioner filed an application under Section 17 of the Arbitration Act praying for passing a decree in terms of the said award. This was numbered as Title Suit No. 62 of 1966. The District Magistrate, Nadia, filed a written objection against the said award contending inter alia that the alleged agreement was not legally valid and binding upon the State of West Bengal as the same was not executed in the manner provided under Article 299 of the Constitution of India inasmuch as Sri Narendranath Sarkar, the then Sub-Divisional Controller, Food and Supplies had no authority to enter into such a contract. The appointment of arbitrator by the petitioner was illegal as the same was not in accordance with the Clause 23 of the agreement and the alleged award filed by the arbitrator was a nullity. It was also contended that there was no difference or dispute regarding the claim between the plaintiff and the defendant and as such there had been no occasion for appointment of any arbitrator and the appointment of the sole arbitrator by the petitioner and award made by the sole arbitrator was without jurisdiction and so the same was liable to be set aside.

6. Mr. Birendra Kumar Roy Chowdhury, learned Advocate appearing on behalf of the respondent has, on the other hand, submitted that the agreement was not in compliance with the provisions of Article 299(1) of the Constitution and as such it was a void contract being made by a person not authorised and so the suit for a decree in terms of the award of the arbitrator was not maintainable. In this connection Mr. Roy Choudhury mentioned several decisions , , , (FB) and . Mr. Roy Chowdhury further submitted that the Sub-Divisional Controller, Food and Supplies, Krishnagar, Nadia, was not empowered by the District Magistrate, Nadia to execute any agreement on behalf of the Governor, State of West Bengal in regard to storage of relief materials and as there was no order giving the officer such authority there was no question of producing any document before the Court and no adverse inference for non production of any document can be drawn against the defendant. Mr. Roy Chowdhury also submitted that the onus was on the plaintiff to prove that the agreement was duly executed, that is, the Sub-Divisional Controller, had authority to execute the said agreement on behalf of the Governor, State of West Bengal. The burden of proof lies on the plaintiff under Section 101 of the Evidence Act and the plaintiff having failed to discharge the onus the Court below rightly held that the agreement was not a legal and valid agreement.

"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."

The said provision is almost in pari materia with the provisions of Section 175(3) of the Government of India Act, 1935, In , Province of West Bengal v. Mohonlal Jain it has been observed that under Section 175(3) of the Government of India. Act, 1935 any contract to be made in the exercise of the executive authority of the province should be expressed to be made by the Governor of the Province and should be executed on behalf of the Governor of the Province and further should be executed on behalf of the Governor by such person and in such manner as might be directed or authorised by him. A contract not made in accordance with the above statutory requirement has been subsequently ratified by the Government or by any appropriate authority on its behalf if clearly proved by evidence would make the contract binding on the Government. In , State of Bihar v. Karamchand Thappar Ltd. it has been observed that a contract in order to be a valid contract under Section 175(3) of the Government of India Act. 1935 must satisfy three conditions-- (1) it must be expressed to be made by the Governor of the Province, (2) it must be executed and (3) the execution should be by such persons and in such a manner as the Governor might direct or authorise. It has also been observed that the Section does not prescribe any particular mode in which the authority must be conferred. Normally such conferment will be by notification in the official gazette, but there is nothing in the Section itself to preclude authorisation being conferred ad hoc on any person and when that is established the requirements of that Section must be held to be satisfied. The same decision has been followed by the Supreme Court in , Bhikrai v. Union of India as well as in , State of West Bengal v. B. K. Mondal. In the last case , State of West Bengal v. B. K. Mondal it has been observed by the Supreme Court that the provision is made in public interest and in enacting the provision of Section 175(3) the Parliament intended that the State should not be burdened with a liability based on unauthorised contracts and the plain object of the provision therefore is to save the State from spurious claims made on the strength of such unauthorised contracts. Failure to comply with the mandatory provisions of the Section makes the contract invalid. In , K.P. Chowdhury v. State of Madhya Pradesh it has been observed by the Supreme Court that in view of Article 299(1) of the Constitution there can be no implied contract between the Government and another person, the reason being that if such an implied contract between the Government and another persons was allowed, they would in effect make Article 299(1) useless, for then a person who had a contract with Government which was not executed at all in the manner provided in Article 299(1) could get away by saying that an implied contract may be inferred by the facts and circumstances of a particular case. This is, of course, not to say that if there is a valid contract as envisaged by Article 299(1), there may not be implications arising out of such a contract. Further, if the contract between the Governor and another person is not in compliance with the Article 299(1), it would be no contract at all and could not be enforced either by the Government or by other person as a contract.

8. Thus it is now well-settled that a contract executed on behalf of the Governor, State of West Bengal in order to be a legal and valid contract must comply with the mandatory requirements of Article 299(1) of the Constitution.

9. In 1948 (2) All ER 767, Robertson v. Minister of Pensions the fact in short was that by the Pensions (Navy, Army, Air Force and Auxiliary Services) Transfer of Power Order, 1939 (made under the Pensions (Navy, Army, Air Force and Mercantile Marine) Act, 1939, Section 1) the entire administration of disablement claims in respect of military service after September 2, 1939, was transferred to the Minister of Pensions. Mr. Robertson being injured in an accident while on military service was examined by a Medical Board and was found unfit for general service and he- was graded in category B. He wrote to the War Office requesting to settle the question of attributability regarding his disability. The War Office by letter intimated him that his disability was accepted as attributable to military service without any consultation with the Ministry of Pensions. On the faith of that assurance the claimant did not take any further steps to obtain independent medical opinion. The question was whether this assurance as contained in the letter of War Office was binding on the Minister of Pensions. It was held that his claim to attributability would be dealt with by or through the War Office. If the War Office in dealing with this matter takes on itself to assume authority on this matter with which he is concerned, the claimant is entitled to rely on it having the authority which it assumes. The department itself is clearly bound and as it is an agent of the Crown the Crown is also bound by it. In 1950 All ER 538 it was held that whenever Government Officers, in their dealings with the subject, take on themselves to assume authority in a matter with which he is concerned, the subject is entitled to rely on their having the authority which they assume. These decisions, however, have no application to the case of agreement made not in compliance with the requirements provided in Article 299(1) of the Constitution of India in view of the decisions of the Supreme Court mentioned before.