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CASE NO.: Appeal (civil) 11031  of  1996

PETITIONER: MANOCHA CONSTRUCTION COMPANY    (NOW DISSOLVED)

       Vs.

RESPONDENT: VS.

DATE OF JUDGMENT:       16/02/2001

BENCH: S. Rajendra Babu & K.G. Balakrishnan.

JUDGMENT:

K.G. BALAKRISHNAN, J. L...I...T.......T.......T.......T.......T.......T.......T..J     This  appeal is directed against the judgment and  order passed  by  the Division Bench of the High Court  of  Madhya Pradesh  at  Jabalpur in Civil Revision No.  296 of 1992  on 30th  January, 1996.  By the impugned judgment, the Division Bench  dismissed  the  said  Civil  Revision  filed  by  the appellant under Section 19 of the Madhya Pradesh Madhyastham Adhikaran  Adhiniyam,  1982,  challenging  the  award  dated 16.3.1992  passed by the M.P.  Arbitration Tribunal,  Bhopal in Reference Case No.  11/1987.

   The  appellant, a construction company, entered into  an agreement  on 18.3.1982 with the respondent State of  Madhya Pradesh,  for  the  construction of a Dam  in  Barchar  Tank Project,  in  the  Sidhi district.  The total  cost  of  the construction  was  Rs.1,22,19,779/-.  As per the work  order given  to  the appellant, the appellant was to complete  the work  within  a  period of 15 months.   The  appellant  was, however,  given  several  extensions and the  last  of  such extension was to expire on 30.6.1987.  Payments were made to the appellant during the course of the progress of the work. The total quantity of the earth work to be done was 5,02,929 Cubic  Meters.  As per the contract, the appellant was  also bound  to  do an additional 10% of the agreed earth work  at the  rate  given  under  the agreement.   According  to  the appellant, more than 10% of the agreed quantity of the earth work  was carried out and for the additional quantity of the earth  work  done,  a claim was made by him @  Rs.34.50  per Cubic Meter.  The agreed rate for the earth work was Rs.15/- per  Cubic  Meter.  Dispute arose between the parties as  to the  rate  payable for the additional quantity of the  earth work  carried  out  and  the  matter  was  referred  to  the Arbitration  Tribunal.   The  Tribunal passed  an  award  on 14.7.1988  and  by this award the rate of Rs.22/- per  Cubic Meter  was  fixed for the additional earth work done by  the appellant.  Aggrieved by this award, the appellant preferred a Civil Revision (Registered as C.R.No.  459 of 1988) before the  High Court of Madhya Pradesh.  The respondent State  of Madhya  Pradesh  also filed Civil Revision No.  512 of  1988 against  the said award of the Tribunal.  Whereas the  Civil

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Revision  filed  by  the State was dismissed,  the  Revision filed  by the appellant was remitted to the Tribunal with  a specific direction, which is to the following effect :

   "For  the  aforesaid reasons, the award of  compensation for this extra work at Rs.22/- per cubic metre is hereby set aside  and to that extent Civil Revision No.  459 of 1988 is allowed.   Civil  Revision  No.  512 of 1988, filed  by  the State  Government  of M.P.  and others is hereby  dismissed. The  matter shall go back to the Arbitration Tribunal, which shall,   after  giving  due   opportunity  to  the  parties, determine   the  amount  of   compensation  payable  to  the contractor,  i.e.,  M/s  Manocha Construction Co.,  for  the additional  work done, in accordance with the provisions  of clause  4.3.13.3 of the agreement.  We affirm the finding of the  Tribunal  as  to the contractor’s  entitlement  to  the compensation for this additional work done."

   Pursuant  to the above Revisional order, the matter  was again  considered  by the Arbitration Tribunal and  a  fresh award  was passed on 16.3.1992.  The Tribunal held that  the work relating to the additional quantity of the earth was in respect  of  a temporary ’bund’ and the construction of  the same  was completed by November/December, 1985.   Therefore, in  view of sub-clause (d) of Clause 4.3.13.3, the rate  had to be fixed on the basis of the then prevailing market rate. On  that basis the claim of the appellant was considered and it  was  held that the appellant was entitled to get at  the rate  of Rs.15.70 per Cubic Meter.  The award thus passed by the Tribunal was challenged by the appellant before the High Court,  but the Division Bench by its order and judgment  as aforesaid,  declined to interfere with the same.  Hence this appeal .

   We  heard the learned Senior Counsel, Mr.  S.B.  Sanyal, for  the appellant and also the counsel for the respondents, Mr.   Krishnan Venugopal.  Learned counsel for the appellant contended that the Tribunal had committed a serious error in appreciating   the  evidence  and   wrongly  held  that  the additional  earth  work was completed in  November/December, 1985  and thus adopted inappropriate criteria for fixing the total  amount due to the appellant.  It was argued that  the series  of  correspondence  between the  appellant  and  the respondent  would  show that the officers of the  respondent State  Govt.   had agreed to pay @ Rs.25.25 per Cubic  Meter while the appellant had all along been insisting for payment @  Rs.34.50  per Cubic Meter for the additional  earth  work done  by  him.   Therefore, it is argued that  the  Tribunal passed  a  wrong  award and thereby failed to  exercise  the jurisdiction  vested  in it and the High Court  should  have interfered  by  virtue of the powers conferred on  it  under Section  19  of  the Madhya  Pradesh  Madhyastham  Adhikaran Adhiniyam,  1982,  to  correct   the  material  irregularity committed  by  the Tribunal by improper appreciation of  the evidence.

   The  learned  counsel for the respondent State,  on  the other  hand,  contended that the direction relating  to  the construction  of  a temporary ’bund’ was carried out by  the appellant  in 1985 and the rate of Rs.25.25 per Cubic  Meter agreed  to be paid to the appellant for the additional earth work  was  in respect of the main Dam work.  He argued  that the  appellant  had  been  paid at a higher  rate  than  the contract rate.

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   It  is  evident from the pleadings that  the  additional earth  work, for which the appellant had been bargaining for a  higher rate, related to the construction of the temporary ’bund’  in question.  This temporary ’bund’ was  constructed for  stopping the flow of the river to enable the department to clear the Dam area.  In paragraph 2 of the letter written by  the  appellant  to the Superintending  Engineer  of  the respondent State on 25.12.1986, it is stated as under :

   "The  agreemented  quantity of earth work was  given  as 502929  Cums  in  Schedule  ’G’ of  the  contract  document. During  the  course  of  execution, we  were  instructed  to construct the temporary bundh for stopping the flow of river to  enable  the  department to clear the dam seat  of  Nalla portion.   The  work  was  taken up by us in  the  month  of October  1985  and  the same was completed in the  month  of November  1985.   We were paid the rate of Rs.15/-  per  Cum (tendered  rate)  for  this item of work for  the  total  of 48651.67 Cums in our running bills No.  20 dated 15.3.86 and 21 dated 4.5.86."                                         [Emphasis supplied]

   The dispute referred to the Arbitration Tribunal related to the rate payable for this work.  In its first award dated 14.7.1988,  the Arbitration Tribunal had considered that the additional  work related to the temporary ’bund’ constructed by  the  appellant and the total earth work done by him  was 49027.64  Cubic  Meters.   Therefore, there  cannot  be  any dispute that the additional work related to the construction of  the  temporary ’bund’.  It is also not possible for  the appellant  to contend that this work was carried out in May, 1986  after the receipt of Exh.  P-12 letter dated  5.4.1986 from  the  Superintending Engineer.  The contention  of  the appellant  (I)  that  there was correspondence  between  the appellant  and  the  Executive  Engineer in  charge  of  the construction   work  regarding  the   rate  payable  to  the appellant;  (ii) that the appellant by letter dated 6.4.1986 had  only provisionally agreed for the rate of Rs.25.25  per Cubic  Meter;  and (iii) that he had been claiming the  rate of  Rs.34.50  per Cubic Meter is incorrect.   Reference  was made  to the letter dated 5.4.1986 of the Executive Engineer and  the appellant’s letter dated 6.4.1986 addressed to  the Superintending Engineer.  It is clear that these letters and some  other  similar  correspondence   referred  to  by  the appellant,  related  to the additional earth work,  if  any, done by the appellant in excess of the quantity of the earth work  agreed  to by him in respect of the main Dam.  In  the letter  dated  31.10.1986  written by the appellant  to  the Executive  Engineer,  the appellant had made a reference  to the  construction  of a temporary ’bund’ and it  was  stated therein  that he had undertaken that work under instructions of  the Executive Engineer and the payment for the same  was agreed  at the rates of earthen dam.  The respondent on  the other   hand  contended  that  this   work  itself  was   an unauthorised  work.   We need not, however, dilate  on  that aspect as the Division Bench in its earlier order had stated that  the appellant was entitled to get payment for the work relating to temporary ’bund’.

   The learned counsel for the appellant contended that the Superintending  Engineer, by his letter dated 5.4.1986 (Exh. P-12)  had  agreed to pay at the rate of Rs.25.25 per  Cubic Meter  and in the face of this admission it was not  correct on  the part of the Arbitration Tribunal to fix the rate  at

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Rs.15.75  per  Cubic Meter.  This letter referred to by  the appellant  is  certainly  not in respect  of  the  temporary ’bund’  constructed by the appellant in 1985.  It seems that there  was a dispute with regard to the rate payable for the additional  work  in  respect of the main Dam.   Though  the appellant   claimed   Rs.34.50   per    Cubic   Meter,   the Superintending  Engineer by his letter dated 5.4.1986 agreed to  pay  Rs.25.25  per  Cubic Meter.   For  this  additional quantity  of  the work, the appellant was paid in excess  of the contract rate.

   However, the dispute before the Arbitration Tribunal was with  regard  to  the  temporary ’bund’  and  its  work  was completed  by  November/December, 1985 and the  total  earth work was 49027.64 Cubic Meters.  The Tribunal went into this question  and fixed the rate having due regard to sub-clause (d)  of  Clause  4.3.13.3 of the agreement which is  to  the following effect :

   "If the rates for the altered, additional or substituted work  cannot  be determined in the manner specified  in  the Sub-  clause (a), (b), (c) above, the S.E.  shall  determine the  rate  or  rates  and  fix the  same  on  the  basis  of prevailing  market  rates to include prime cost of  material and  labour  charges  (inclusive  of  hourlywise  rates   as determined by the department for machinery and equipments if used)  plus 15% extra to cover the sundry, overhead  charges and profits etc.  of the contractor."

   On  the  basis  of  the   above  clause,  the   Tribunal considered  the prevailing market rates, including the  cost of  material  and labour charges and an additional  15%  was added  to  cover the sundry charges to arrive at  the  rate. The details are given in the award.  Learned counsel for the appellant  could  not  point out any  defect  or  illegality committed by the Tribunal in fixing the rate payable for the additional  work.   When it was proved that  the  additional earth  work was completed in November/December, 1985,  there was  nothing  wrong in fixing the amount based on  the  rate prevalent at that time.

   The  learned counsel for the appellant lastly  contended that  by  its earlier award dated 14.7.1988 the  Arbitration Tribunal  had fixed the rate of Rs.22/- per Cubic Meter  for the  earth  work  and that the Civil Revision filed  by  the respondent   State  Govt.   against   that  award  had  been dismissed.   Therefore,  it  was argued that  at  least  the appellant  should be entitled to get the rate of Rs.22/- per Cubic  Meter.   We  do  not   find  any  substance  in  this contention.   In  the order passed by the Division Bench  of the High Court on 26.7.1990, it was specifically stated that the  rate for the additional earth work is to be refixed  in accordance  with  the provisions of Clause 4.3.13.3  of  the agreement and it was accordingly done by the Tribunal.  When a  fresh  award  has been passed by the  Tribunal,  whatever award passed by it earlier loses its significance.

   We  are  of  the  view  that  the  appellant  failed  to establish   that  there  was   any  error  of  jurisdiction, illegality  or material irregularity warranting interference by  the  Revisional court.  The appeal has no merit  and  is dismissed  accordingly,  however,  without any order  as  to costs.

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