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PETITIONER: CONTINENTAL CONSTRUCTION CO. LTD.

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT07/03/1988

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) RANGNATHAN, S.

CITATION:  1988 AIR 1166            1988 SCR  (3) 103  1988 SCC  (3)  82        JT 1988 (2)    95  1988 SCALE  (1)721  CITATOR INFO :  RF         1988 SC2018  (10)

ACT:      Arbitration Act,  1940-Whether a  contractor can  claim extra cost  and  compensation  towards  rise  in  prices  of material and labour on account of delay on the part of other party to  contract  in  discharge  of  its  obligations  and allotment of  work under the contract and invoke arbitration clause in  contract and  ask for  a reference  to arbitrator under section 20-Of.

HEADNOTE: %      The petitioner in this application under Article 136 of the Constitution entered into a contract with the respondent State for  construction work.  The  contract  could  not  be completed within  the stipulated  time  because  of  alleged gross delay  on the  part of  the State in allotment of work and discharge  of its  obligations under  the contract.  The petitioner incurred  unforeseen expenditure  and  approached the Superintending Engineer for payment. Upon refusal of the Superintending Engineer  to pay and also to refer the matter to arbitration,  the petitioner  moved  the  District  Judge under Section 20 of the Arbitration Act, (’the Act’) for the filing of the arbitration agreement and for reference of the dispute to  arbitration. The  District  Judge  directed  the respondent State to file the agreement, and made a reference for specific  question to  the arbitration.  The High  Court dismissed the  State’s  appeal  against  the  order  of  the District Judge. Thereafter, an arbitrator was appointed, who made an  award partly  allowing the  petitioner’s claim. The award was filed in the Court of the District judge, who made the award  a rule  of the  court. The respondent appealed to the High  Court. The  High Court  remanded the matter to the District Judge  for a  fresh decision.  The  District  Judge accepted the  respondent’s  objections  and  set  aside  the award.  The   High  Court   dismissed  the   appeal  of  the petitioner. The  petitioner then moved this Court for relief by this petition for special leave.      Dismissing the petition, the Court, ^

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    HELD:  The   District  Judge  rightly  found  that  the question regarding extra-cost was a general question and not a specific legal question and the decision of the arbitrator was not final. The arbitrator 104 misconducted himself  in allowing the claim without deciding the objection of the State. In view of the specific clauses, the petitioner  was not legally entitled to claim for extra- cost. The  decision of this Court in Seth Thawardas v. Union of India,  [1955] 2 SCR 48 was of no avail on this point. If no specific question of law is referred, the decision of the arbitrator on that question is not final however much it may be within  his jurisdiction  and indeed essential for him to decide the  question incidentally.  The arbitrator  is not a conciliator and  cannot ignore  the law  or mis-apply  it in order to  do what  he thinks  is just  and  reasonable.  The arbitrator is  a Tribunal  selected by the parties to decide their disputes according to law and so he is bound to follow and apply  the law,  and if he does not, he can be set right by the  Court provided  his error appears on the face of the award. In this case, the contractor having contracted, could not go  back to the agreement simply because it did not suit him to abide by it. [111C-F]      The petitioner  had argued  that since  specific issues had been  framed and  referred by  the District Judge to the arbitrator, the  same had  been answered  by a  non-speaking award and  there was  no mistake of law apparent on the face of the  record, and  the District Judge had erred in setting aside the  award by  looking into  the terms of the contract which neither  formed part of the award nor were appended to it. The  Court did not agree. This being a general question, the District  Judge rightly  examined the question and found that the petitioner was not entitled to claim for extra cost in view  of the  terms of  the contract,  and the arbitrator misdirected himself by not considering this objection of the State before giving the award. [112B-C]      The  limits   of  the  jurisdiction  of  the  Court  to challenge the  award are well-settled. While considering the objection under  section 30  of the  Act, the Court does not act as  an appellate  Court; it  can only interfere with the award  if   the  arbitrator   misconducts  himself   or  the proceedings or if the award has been made after the issue of an order  by the Court superseding the arbitration or if the arbitration proceedings  have become  invalid under  section 35(c) of  the Act, or the award has been improperly procured or  is   otherwise  invalid.  If,  a  specific  question  is submitted to the arbitrator and he answers it, the fact that the answer  involves an  erroneous decision in point of law, does not  make the  award bad on its face so as to permit it being set aside. [112E-F; 1l3A]      The High  Court was  right that  the District Judge was entitled to  examine the  contract in  order to find out the legality of the claim of the petitioner regarding extra cost towards rise in prices of material and 105 labour. Clauses  2.16 and 2.4 stipulated that the contractor had to  complete the  work inspite  of  rise  in  prices  of materials and  also rise  in labour  charges  at  the  rates stipulated in the contract. There was a clear finding of the arbitrator that the contract was not rendered ineffective in terms of  section 56 of the Contract Act due to the abnormal rise in  prices of  materials and  labour. This being so and the contractor having completed the work, it was not open to him to  claim extra  cost towards rise in prices of material and  labour.  The  arbitrator  misdirected  himself  in  not

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deciding  this   specific  objection  raised  by  the  State regarding  the   legality  of   the  extra   claims  of  the petitioner. It  has to  be born  in  mind  that  there  were specific clauses  which barred consideration of extra claims in the event of price escalation. [113D-F; 114B]      The award  was properly set aside by the District Judge and the  High Court  was right in the view it took and there was no ground to interfere. [113G]      Seth Thawardas  v. Union of India, [1955] 2 SCR 48; M/s Alopi Parshad  v. Union  of India,  [1960] 2 SCR 793; Kapoor Nilokheri Co-operative  Dairy Farm  Society Ltd. v. Union of India, A.I.R.  1973 S.C.  1338; Champsey  Bhara and  Co.  v. Jivraj Balloo  Spinning and  Weaving Co.  Ltd., A.I.R.  1923 P.C. 66;  Re. King  and Duveen, [1913] 2 K.B. 32; Government of Kelantan  v. Duff  Development Co.  Ltd., [1923]  AC 395; Bungo Steel  Furniture v.  Union of India, [1967] 1 SCR 633; Saleh Mohd.  v. Nathoo  Mal, 54  I.A. 427;  Abosalom Ltd. v. Great Western,  [1933] A.C.  592; Allen Berry & Co. v. Union of India,  [1971] 3  SCR 282  and Tarapare  and  Company  v. Cochin Shipyard  Ltd., Cochin  and Anr.,[1984] 2 S.C.C. 680, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Special  Leave  Petition (Civil) No. 13180 of 1985.      From the  Judgment and  order dated  17.4.1985  of  the Madhya Pradesh High Court in Misc. F.A. No. 252 of 1981.      S.N. Kacker and R. Ramachandran for the Petitioner.      The Judgment of the Court was delivered by      SABYASACHI MUKHARJI,  J. This  is an  application under Article 136  of the Constitution for leave to appeal to this Court from  the judgment  and order  of the  High  Court  of Madhya  Pradesh   dated  17th   April,  1985.  In  order  to appreciate the points involved, it is neces- 106 sary to  state that  the petitioner  entered into a contract dated 31st  March, 1970  with respondent,  State  of  Madhya Pradesh for  the construction  of Rip  Rap on  right bund of Masonary Dam  of Tawa  Project. The  contract could  not  be completed within  the stipulated  time  because  of  alleged gross delay  on the  part of  the State,  according  to  the petitioner, in  allotment  of  work  and  discharge  of  its obligations under  the  contract.  The  petitioner  incurred unforeseen expenditure,  it  is  claimed,  to  the  tune  of Rs.5,29,812 and  approached the  Superintending Engineer for payment. Upon  refusal of the Superintending Engineer to pay the  claim   and  his   refusal  to   refer  the  matter  to arbitration, the petitioner moved the learned District Judge under section  20 of  the Arbitration Act, 1940 (hereinafter called ’the  Act’) for  filing of  the arbitration agreement and for  reference of  the disputes  to the  arbitration. On 24th April,  1976 the  learned District  Judge  allowed  the petitioner’s application  and directed the respondent, State of Madhya  Pradesh to file the agreement in Court and made a reference for specific question to the arbitration. The High Court on  22nd September,  1976 dismissed the State’s appeal against the  order of  the  District  Judge.  Thereafter  in March, 1977  Retired Engineer-in-Chief,  P.W.D.  Bhopal  was appointed arbitrator. There was an award dated 29th October, 1978  on  all  the  issues  referred,  partly  allowing  the petitioner’s claim.  The award was filed in the Court of the District Judge  and the  respondent filed  objections to the award under sections 30 and 33 of the Act and the petitioner

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filed replies.  The District  Judge made the award a rule of the Court.  The respondent  appealed to  the High Court. The High Court  remanded the  matter to  the District  Judge for fresh decision.  The District  Judge accepted the objections and set  aside the  award. The  High Court  by the  impugned judgment dismissed  the appeal of the petitioner. It is from this judgment  of the  High Court  that the petitioner seeks leave to appeal to this Court.      As mentioned  hereinbefore by the impugned judgment and order of  the High  Court the  award has been set aside. The agreement  contained   an  arbitration   clause.  The  work, however, could  not be completed within the stipulated time, the  period   of  contract   was  extended.  The  contractor attributed delay on the part of the State Government whereas the State  Government blamed  the  contractor.  This  was  a disputed question.  While the  work  was  in  progress,  the contractor was  required to meet extra expenditure on labour charges and  materials due  to revision  in wage  scales and escalation of prices. Alterations and substitutions of works also led  to extra  expenses. There  were certain  items for which rates  were not  provided but all the same work had to be done. The contractor therefore, advanced claims 107 for compensation.  The Superintending Engineer dismissed the claims on  the ground  that the  claims  were  barred  under clause 3.3.15. He also held that some of the claims were not covered by the contract. The contractor sought to invoke the arbitration clause  but the  State sought  to oppose  on the ground that  the dispute  attracting the  arbitration clause had not  arisen. It  was contended that the claim was barred by clause  3.3. 15 and it had not been made within the time. It was  contended further  that there  was only one contract and there  being no  separate  agreement  for  extension  of period of  the contract the rate as provided in the original contract alone  was permissible.  As there  was no  separate contract and  no reference under clause 3.3.29 could be made for the  enhanced period  beyond the period of the contract. Relevant clauses of the contract were as follow:           "3.3.15  Clause   15.  Time  limit  for  unforseen           claims: Under  no circumstances whatever shall the           contractor be  entitled to  any compensation  from           Government on  any account  unless the  contractor           shall have  submitted claim  in  writing.  to  the           Engineer-in-Charge within  one month  of the cause           of such claim occurring.           3.3.29 Clause 29.                Decision of  Superintending Engineer,  to  be           final except  where  otherwise  specified  in  the           contract.  The   decision  of  the  Superintending           Engineer of the Circle for the time being shall be           final, conclusive  and binding  on all  parties to           the contract  upon all  question relating  to  the           meaning of  the specification, design drawings and           instructions hereinbefore  mentioned and as to the           quality of  workmanship or  material used  on  the           work or  as to  any other  question, claim,  right           matter or thing whatsoever, in any way arising out           of or relating to the contract, designs, drawings,           specifications, estimates,  instructions,  orders,           or those  conditions or  otherwise concerning  the           work of  execution or failure to execute the same,           whether arising  during the  progress of the work,           or after the completion or abandonment thereof.                Provided   that    if   the   contractor   is           dissatisfied  with   the  final  decision  of  the

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         Superintending Engineer  in respect of any matter,           he may  within 28  days after  receiving notice of           such  decision  give  notice  in  writing  to  the           Superintending 108           Engineer requiring that the matter may be referred           to  the   arbitration  and   furnishing   detailed           particulars   of   the   dispute   or   difference           specifying clearly  the point  at  issue.  If  the           contractor fails  to give  such notice  within the           period of 28 days as stipulated above the decision           of the Superintending Engineer already given shall           be conclusive and binding on the contractor.                In case an arbitration is to be held it shall           be effected  by an  arbitrator to  be appointed by           the  State  Government  whose  decision  shall  be           final, conclusive and binding.                If the  work under  the contract has not been           completed  when   a   dispute   is   referred   to           arbitration work shall continue during arbitration           proceedings if  it is  reasonably possible  and no           payment due  to contractor  should be with held on           account of  arbitration proceedings  unless it  is           required by the arbitrator           3.3.32 Clause 32. Action where no specification:                In case  of any class of work for which there           is no such specification as is mentioned in Rules,           such work  shall be carried out in accordance with           the  specification   approved  by   Superintending           Engineer/Chief Engineer,  or application  to works           in the  district and  the event  of there being no           such specification,  then in  such case  the  work           shall be  carried out in all respect in accordance           with the  instructions  and  requirements  of  the           Engineer-in-Charge.           3.3.33 Clause 33. Definition of work:                The expression  "works" or  "work" where used           in  these   conditions  shall,   unless  there  by           something  either   in  the   subject  or  context           repugnant to  such construction be constructed and           taken to  mean the  works by  or by  virtue of the           contract  contracted   to  be   executed,  whether           temporary  or  permanent,  and  whether  original,           altered, substituted or additional.           3.3.34 Clause  34. Claim for quantities entered in           the tender or estimate: 109                     Quantities  shown   in  the  tender  are           approximate and  no claim  shall be entertained or           work executed being either more or less than those           entered in the tender estimate."      The learned  single Judge  as mentioned hereinbefore of the High  Court after  exhaustive discussion  dismissed  the appeal and  upheld the order. Being aggrieved the petitioner went up in appeal before the Division Bench and the Division Bench on  consideration of  the matter dismissed the appeal. The Division  Bench considered  the following  issues raised before the District Judge:      1. Whether  the contractor  had  incurred  extra  costs      towards wetting  and washing  of stones used in masonry      of Group-II Tawa Masonry Dam?      2. Was the petitioner entitled to payment of this extra      costs of Rs. 1.20,355?      3. Whether the petitioner contractor had to incur extra      cost  of  material  and  labour  to  the  tune  of  Rs.

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    14,72,456 within the contract period for executing work      assigned to it?      4. Whether  the contractor  had incurred  extra cost of      Rs.8,84,336 for the work beyond the contract period due      to unforeseen circumstances?      5. Whether  the petitioner’s  claim on  both the counts      was in  whole or  in part  of it  was barred by time in      terms of clause 3.3. 15?      6. Whether  the contract  was rendered  ineffective  in      terms  of  section  56  of  the  Contract  Act  due  to      unexpected change  in the  market rate  of material and      labour charges?      7. Was  the claim  not entertainable in accordance with      the terms’  of the contract under clause 3.3.32, 3.3.33      and 3.3.34 during the extended period of contract?      8. Was  the work  delayed because  of the  presence  of      shale-zone in  the foundation which factor was not made      known to the contract?      9. Whether  the contractor  was entitled to extra costs      of damages 110      for the delay caused on account of shale-zone?      The Division Bench came to the findings as follows:      1. The  contractor did incur expenditure on wetting and      washing of stones in Masonry Group-II, Tawa Masonry Dam      but this was according to agreement.      2. The petitioner is not entitled to the payment of the      extra costs of Rs.1,20,355.      3. The petitioner/contractor did incur an extra cost of      Rs.14,72,456 within  the contract  period for executing      the assigned work.      4. The petitioner/contractor did incur an extra cost of      Rs.6,81,796 for  the  work  done  beyond  the  contract      period due to unforseen circumstances.      5. The  petitioner is  entitled to  the  claim  to  the      extent  of   Rs.2,65,000  against   Issue  No.   3  and      Rs.6,81,796 against  Issue No.  4 above and the same is      not barred by time in terms of clause 3.3.15.      6. The  contract was  not rendered ineffective in terms      of section  56 of the Contract Act due to abnormal rise      in the market rates of materials and labour.      7. The claim under reference cannot be ruled out merely      be cause of the provisions of clause 3.3.32, 3.3.33 and      3.3.34.      8. Yes,  the work  was delaved  due to  the presence of      shale-zone in  the  foundations,  a  factor  which  was      unforeseen and was not made known to the contractor.      9. The  contractor is  entitled to claim extra cost due      to the  delay caused  on account  of the  shale-zone in      foundations.      The Division  Bench felt  that the  four factual issues decided by  the District  Judge were  more or  less  by  the agreement and  therefore, the  Division Bench  did not  deal with these. So far as three legal issues which were referred to him,  namely, whether  the claim  was barred under clause 3.3. 15, the contract was rendered ineffective in terms of 111 section 56  of the  Contract Act due to abnormal rise in the market rate  of  material  and  labour  and  the  claim  not entertainable under  clause 3.3.32,  3.3.33 and  3.3.34. The High Court  considered whether the appellant was entitled to extra cost  towards rise  in prices  of materials and labour within and  beyond the  contract period.  The Division Bench noted that  the learned District Judge held that since three legal issues  were specifically  referred to  the arbitrator

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and therefore  his decision  had become final and binding on the parties  and cannot  be re-agitated  before  the  Court. Regarding  the   remaining  issues,   the  State  had  taken objection while  opposing the  application under  section 20 that the  appellant was  not  entitled  to  extra  cost  for material and  labour in  terms of the contract but the Court directed that  this matter  had to  be agitated  before  the arbitrator and the application under section 20 could not be dismissed on  the ground that the claim would not ultimately succeed. The District Judge found and in our opinion rightly that  the   question  regarding  extra-cost  was  a  general question and  not a specific legal question and the decision of  the   arbitrator  was  not  final  one.  The  arbitrator misconducted himself  in allowing the claim without deciding the objection of the State. In view of the specific clauses, the appellant  was not  legally entitled  to claim for extra cost. The  decision of this Court in Seth Thawardas v. Union of India,  [1955] 2 SCR -18 is of no avail on this point. If no specific question of law is referred, the decision of the arbitrator on that question is not final however much it may be within  his jurisdiction  and indeed essential for him to decide the  question incidentally.  The arbitrator  is not a conciliator and  cannot ignore  the law  or misapply  it  in order to  do what  he thinks  is just  and  reasonable.  The arbitrator is  a tribunal  selected by the parties to decide their disputes  according to  law and  so is bound to follow and apply the law, and if he does not he can be set right by the Court  provided his  error appears  on the  face of  the award. In  this case,  the contractor  having contracted, he cannot go  back to  the agreement simply because he does not suit him  to abide by it. The decision of this Court in M/s. Alopi Parshad  v. Union  of India,  [1960] 2  SCR 793 may be examined. There  it was  observed that  a  contract  is  not frustrated merely  because the  circumstances in  which  the contract was made, altered. The Contract Act does not enable a party  to a  contract  to  ignore  the  express  covenants thereof,  and   to  claim   payment  of   consideration  for performance of  the contract  at rates  different  from  the stipulated rates,  on some vague plea of equity. The parties to an  executory contract  are often faced, in the course of carrying it  out, with a turn of event which they did not at all anticipate,  a wholly abnormal rise or fall in prices, a sudden depreciation  of currency,  an unexpected obstacle to execution, or the like. There is no general 112 liberty reserved  to the  courts to  absolve  a  party  from liability to perform his part of the contract merely because on  account   of  an  uncontemplated  turn  of  events,  the performance of the contract may become onerous.      It was  argued on  behalf of  the appellant  that since specific issues  13 were framed and referred by the District Judge to  the arbitrator,  the same  had been  answered by a non-speaking award,  there is  no mistake of law apparent on the face  of record  and the District Judge erred in setting aside the  award by  looking into  the terms of the contract which it was submitted, neither formed part of the award nor appended to it. We are unable to agree. This being a general question,  in   our  opinion,  the  District  Judge  rightly examined the  question and  found that the appellant was not entitled to claim for extra cost in view of the terms of the contract and  the  arbitrator  misdirected  himself  by  not considering this  objection of  the State  before giving the award.      In Kapoor  Nilokheri Co-operative  Dairy  Farm  Society Ltd. v.  Union of  India, A.I.R. 1973 S.C. 1338, it was held

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that where an arbitrator is called upon to decide the effect of the agreement, he has really to decide a question of law, i.e. Of  interpreting the agreement, and hence, his decision is not open to challenge. This was also a decision against a reasoned award  but since  the reference  was to  a specific question of  law, the  decision of  the arbitrator,  it  was held,  was   not  open  to  challenge.  The  limits  of  the jurisdiction of  the Court  to challenge the award are well- settled. While considering objection under section 30 of the Act, the  Court does  not act  as an appellate court, it can only interfere  with the award if the arbitrator misconducts himself or  the proceedings  or if  the award  has been made after the  issue of  an order  by the  Court superseding the arbitration or  if the  arbitration proceedings  have become invalid under section 35(c) of the Act or the award has been improperly procured  or is  otherwise invalid.  The Judicial Committee in  Champsey Bhara & Co. v. Jivraj Balloo Spinning & Weaving  Co. Ltd.,  A.I.R. 1923  P.C. 66 has laid down the extent of  the jurisdiction  of the  Court to  set aside  an award on  the ground of an error in making the award. It has been reiterated  that the award of the arbitrator may be set aside on  the ground  of an  error on  the face thereof only when in the award or in any document incorporated with it as for instance, a note appended by the arbitrator, stating the reason  for   his  decision,   there  is  found  some  legal proposition which  is the  basis of  the award  and which is erroneous. See  also in  this connection  Re. King & Duveen, [1913]  2  K.B.  32  and  Government  of  Kelantan  v.  Duff Development Co. Ltd., [1923] A.C. 395, if how 113 ever, a specific question is submitted to the arbitrator and he  answers  it,  the  fact  that  the  answer  involves  an erroneous decision  in point of law, does not make the award bad on  its face  so as to permit of it being set aside. See also the observations of this Court in Bungo Steel Furniture v.Union of  India, [1967] 1 SCR 633. It is well settled that the contract  remained  part  of  the  award.  The  Judicial Committee  in  Saleh  Mohd.  v.  Nathoo  Mal,  54  I.A.  427 considered an  award  in  which  the  arbitrator  recited  a contract made  between the  parties and  the dispute arising under  it.   It  was   contended  that   the  contract   was incorporated in  the award by its reference and so the award disclosed an  error of  law in  construing the  terms of the contract. But  that contention  was negatived.  It was  held that the  reference to  the contract  in the  award  was  to earmark  the  disputes  between  the  parties  and  was  not incorporated into  the award.  In  Abosalom  Ltd.  v.  Creat Western, [1933]  A.C., 592,  it was  held that  if an  award referred to  the terms  of a  clause in  the  contract,  the clause though  not set  out in  full must  be  taken  to  be incorporated in it. This Court has reiterated in Allen Berry & Co.  v. Union  of  India,  119711  3  SCR  282  that  mere reference to  the contract in the award is not to be held as incorporating it.      In the aforesaid light, we are of the opinion, the High Court was  right that  the District  Judge was  entitled  to examine the  contract in  order to  find out the legality of the claim of the appellant regarding extra cost towards rise in prices  of material and labour. As was pointed out by the learned District  Judge clauses 2.16 and 2.4 stipulated that the contractor  had to  complete the work inspite of rise in prices of  materials and  also rise in labour charges at the rates stipulated  in the contract. There was a clear finding of  the  arbitrator  that  the  contract  was  not  rendered ineffective in  terms of  section  56  of  the  Act  due  to

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abnormal rise  in prices  of material and labour. This being so and  the contractor having completed the work, it was not open to  him to  claim extra  cost towards rise in prices of material and  labour. The arbitrator misconducted himself in not deciding  this specific  objection raised  by the  State regarding the legality of extra claim of the appellant.      In that  view of the matter, the award, in our opinion, was properly set aside by the learned District Judge and the High Court was right in not interfering with it.      The question  about specific reference on a question of law was  examined by  this Court  recently in  the  case  of Tarapore and  Comapny v.  Cochin Shipyard  Ltd., Cochin  and another, [1984]  2 S.C.C. 680. There it was observed that if the agreed fact situation, on the basis of 114 which agreement  was entered  into,  ceases  to  exist,  the agreement to  that  extent  would  become  otiose.  If  rate initially quoted  by the contractor became irrelevant due to subsequent price  escalation, it  was held in that case that contractor’s  claim   for  compensation  for  the  .  excess expenditure incurred  due to  the price  rise could  not  be turned down  on ground of absence of price escalation clause in that  regard in the contract. Agreement as a whole has to be read.  Reliance was  placed very heavily on this decision on behalf of the appellant before us.. It has to be borne in mind that  in the  instant case  there are  specific clauses referred to hereinbefore which barred consideration of extra claims in  the event of price escalation. That was not so in Tarapore and  Company’s case.  That made all the difference. The basis  of bargain  between the parties in both these two cases were entirely different.      In the  aforesaid view  of the  matter we  are  of  the opinion that  the High  Court was  right in the view it took and there  is no  ground  to  interfere.  The  petition  for special leave fails and is accordingly dismissed. S.L.                                Petition dismissed. 115