P L D 1957 (W (PLP)

INAMULLAH, j.-This is an application under sections 30 and 33 of the Arbitration Act, 1940. It arises under the following circumstances: The defendants made an offer on 25th October 1948, to supply 150 tins of ghee to the Director of Food Purchases (Defence). Thereafter, the Government of Pakistan, Ministry of Food, Agriculture and Health, Director of Food Purchases (Defence) wrote on 5th November 1948 in the form of "acceptance of tender" to the defendants. It would appear from the perusal of the acceptance of tender dated 5th November 1948, that there were some more conditions put to the offer made by the defendant on 25th October 1948. There ' is nothing on the record to show that the defendants explicitly accepted the terms given by the plaintiff on 5th November 1948. In the meantime, it appears from the documents filed before me that the plaintiff had given the contract to someone else at Rs.250 per maund, though this fact is not admitted by Mr. Mozaffar, the learned advocate who appears for the plaintiff. The defendants experienced difficulty because of the higher rate given to someone else to supply the contracted goods, with the result that the matter was referred by - the Government to the arbitration of Mr. S. M. Yusuf, C. S. P., Joint Secretary, Ministry of Commerce. The Government contended that under the terms of the agreement between the parties, they were entitled to purchase ghee at the cost and risk of the defendants. While the matter was proceeding before the arbitrator, the defendant made an application before him that they wished to approach the then Chief Court of Sind under section 33 of the Arbitration Act, with the result that the matter was stayed for a month, but ultimately the defendants made an application that they did not wish-to move the Chief Court and that the matter may proceed before the arbitrator. The arbitrator gave his award on 14th March 1955, holding that the rate at which the Government purchased the ghee was the same as was contracted for, but that the defendants were liable to pay the commission charges which the Government had paid in order to purchase the ghee. Mr. Parmanand, the learned advocate for the defendants wished to urge the following points. (1) That there was no contract in accordance with law; i.e. there was no contract in conformity with section 175 of the Government of India Act, 1935. (2) That the contract between the parties did not reach the stage of completion; Besides, Mr. Parmanand, the learned advocate for the defendants raised several other objections, but as one of his 'objections went to the root of the whole matter before me, i.e, the contract was not in the form as contemplated by section 75 of the Government of India Act, 1935, 1 have heard him on that point only. The contention of Mr. Parmanand' was that there is no contract between the parties as contemplated by section 175 of the Government of India Act, which requires that the contract should be expressed to be made by the Governor General. I have gone through the record of this case, and I find that there is no such contract. Mr. Muzaffar when the matter was heard yesterday took time to verify if any such contract as required by section 175, Government of India Act was available. It appears that no such contract is available. The Contract entered into by the Governor-General must ex-facie show that the provision of section 175 of the Government of India Act has been complied with that is, "the contract is expressed to be made by the Governor General", that "it is executed on behalf of the Governor General", and that "it is executed by a person who is authorised or has been directed by the Governor-General to execute it." The "acceptance of tender" dated 5th November 1948, does not conform to the requirement of section 175 of the Government of India Act, 1935, which is mandatory. Mr. Parmanand in support -of his contention relied on La Claire. Pakistan Corporation v. The Islamic Republic of Pakistan (P L D 1957 Kar. 285). Mr. Muzaffar, the learned Advocate for the Plaintiff contended in the first place that the "Central Government" is interchangeable with the Governor-General" and therefore it is not necessary that the contract should have been executed in the name of the Governor-General as such. He relied on section 3 (8-AA) of the General Clauses Act (X of 1897). In my opinion, the definition of "Central Government" as given in the General Clauses Act will have no application to the Government of India Act. The relevant portion of section 3, General Clauses Act, 1897, runs as under: "In this Act and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or contex- It is clear from the above that so far as the definition given in section 3 is concerned, that has reference to "Central Acts and Regulations", and not the Government of India Act, 1935, which was passed by the British Parliament. Moreover, if the contention of Mr. Muzaffar is accepted, no suit can be filed against the Central Government, as the Governor-General is protected under section 306, Government of India Act, from legal proceedings. In the next place, Mr. Muzaffar, relying on the case of Sarfaraz and another v, Crown (P L D 1950 Lah. 384) contended that the formality to execute the contract in the name of .the Governor-General should be presumed. In my opinion no such inference can be drawn from the case cited by Mr. Muzafar. In that case the question arose whether it was necessary for the G6vernor-General to have assented to the Bill in the name of His Majesty, and it was held that the assent implied that it was not in the name of His Majesty. In the present case, the provision of section 175, Government of India Act is mandatory, and no such presumption can be drawn. Mr. Muzaffar lastly relied on the analogy of the obser vations made in the case of Khalid Wahid v. Crown (P L D 1956 Lah. 541) and contended that the provision of section 175, Government of India Act, 1935, was only a directory one, and not mandatory, and that non-conformity with the provision of section 175, Government of India Act, 1935, does not invalidate the contract. I am of the view that no such comparison can be drawn between two distinct provisions of the Government of India Act. Every provision must be considered on its own merit. The provision of section 175, Government of India Act, 1935, as I have held in the case of La Chare, cited above, is a mandatory one. I may in conclusion observe that Mr. Parmanand has not alleged any misconduct on the part of the arbitrator. All his various objections that he raised are legal ones and do not cast any reflection on the arbitrator's impartiality. The objection must be allowed on the ground that there was no legal contract between the parties. I may also observe that the Government cannot be allowed to blow hot -and cold in the same breath. In the case of La Claire, cited above, the learned Attorney General of Pakistan, Mr. Faiyaz Ali had very strenuously contended that the provision of section 175 of the Government of India Act, 1935, was mandatory. The Government must abide by the stand that has been taken by it in one matter, and I do not see any reason why I should take a contrary view. The objection is allowed, and the award is set aside, I would make no order as to costs, because the award is being set aside on a technical, though an important ground. A. H. Objection allowed.