A contract not in accordance with the provisions of Section 175(3) of the Government of India Act, 1935, is invalid and cannot be ratified by subsequent conduct.

1. THIS appeal arises out of a suit, being Money; suit No. 20 of 1947, instituted by the plaintiff respondent Mohan Lal Jain on August 13. 1947, against the then Province of Bengal for recovery of certain sums as commission, godown rent and interest. The plaintiff is a merchant of Berhampore in the district of Murshidabad. His case is that, in November, 1943, he was requested by the then District Magistrate of! Murshidabad to receive certain quantities of food grains, consigned by the Directorate of Civil Supplies, Bengal, and store the same for a short period after redeeming the bills and paying the Railway freight and all other charges and that, accordingly, he received and stocked, a large quantity of Wheat and bajra in his godown after incurring the above expenses. The stocks were not, however, cleared but quickly and the plaintiff, thereupon, asked for godown rent and some commission and, in March, 1944, the then District Magistrate of Murshidabad agreed that the plaintiff would get godown rent, calculated at 6 pies per mound per month and commission, calculated at 1 anna per month on the balance of the stock, held on the first day of every month from December 1, 1943. The clearance of stock was made slowly and, as a result, a large consignment of wheat which was in a damaged condition was destroyed and it also contaminated other stocks, and, when in August, 1944, the stock was fully cleared, it was discovered that the stock was short by 882 mds. 10 srs. of wheat and 46 mds. 25 srs. of. bajra. The plaintiff has been repaid the sums which he advanced for redeeming the bills and paying the railway freight etc. and he has also received commission at the rale, mentioned above, up to June, 1944. But he has not received any godown rent, although he submitted a bill therefor, and, on the other hand, the Government called upon him to deposit a sum of Rs. 5015/- and odd as the value of 489 mds. of the stock, found short, after writing off the balance. The plaintiff denied any obligation to re-imbrues any portion of the less in stock and claimed in the suit a sum of Rs. 4,352-7-0 for godown rent for December, 1943, to August, 1944, and a sum of Rs. 514-9-0 as commission for July and August, 1944, together with interest, the total claim being laid at Rs. 5,567/ -.

2. THE Province of West Bengal filed two written statements, one on April 12, 1948, and another on June 15. 1949. In the first written statement the defense taken was that there was no record of the agreement, pleaded by the plaintiff and he was put to proof thereof. The further defense taken was that in any event, the plaintiff was liable for the loss of stock to the extent of 489 mounds and the amount, if any, which might be found due to the plaintiff on his claim, should be set off against the sum of Rs. 5,015-9-3 which was the value of the above loss. This defense was in the nature of an alternative defense and the above sum was claimed by way of equitable set off. In the written statement, filed on June 15, 1949, four further objections were taken, of which only one is now material, namely, that, under the provisions of sec. 175 (3) of the Government of India Act, 1935, the District Magistrate of Murshidabad had no authority to enter into any contract on behalf of the defendant Province and that the contract, alleged by the plaintiff, was not binding on the said defendant.

The learned Subordinate Judge, by his order, dated June 18, 1949, held that this last objection was inconsistent with the case, set out in the original written statement and could not be allowed to be taken. But when the case came up for trial, he allowed the Government Pleader to argue the point. Eventually, the objection was overruled, as, in the opinion of the learned Subordinate Judge, sec. 175 (3) of the Government of India Act, 1935, was not applicable to the agreement, pleaded by the plaintiff. The learned Judge found that the District Magistrate had agreed to pay godown rent and commi