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CASE NO.: Appeal (civil)  3113 of 2006

PETITIONER: Orissa Hydro Power Corpn. Ltd

RESPONDENT: Santwant Singh Gill (D) by Lrs. & Ors

DATE OF JUDGMENT: 24/07/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 17187 of 2003) With CIVIL APPEAL NO 3114 OF 2006  (Arising out of SLP ( C ) No. 16439 OF 2003)

ARIJIT PASAYAT, J.  

Leave granted.         The appeal arising out of SLP(C) No.17187 of 2003 is  directed against the judgment rendered by a Division Bench of  the Orissa High Court in the First Appeal.  The appeal relating  to SLP (C) No. 16439 of 2003 is against the order passed on a  review application filed by the appellant relating to the  connected first appeal.   The factual background in a nutshell is as follows :         An agreement bearing No. 21F2 of 1984-85 was executed  between the original respondent Santwant Singh Gill (who has  died in the mean time and is represented by his legal  representatives) and the Executive Engineer, Indravati Dam  Division for construction of Concrete-cum-Masonry work of  the Indravati Dam of Block No. 18 upto RI 625.5.  Stipulated  dates of commencement of work and completion of work were  2.2.1985 and 1.5.1985 respectively.  Since the respondent did  not complete the work and did not participate in the  measurement, by letter dated 6.1.1986 the respondent was  asked to accept the final measurements of the work done by  him. Subsequently the work was assigned to another  contractor. A writ petition was filed by the respondent  questioning the decision. High Court disposed of the matter  directing the authorities to consider the grievances. In  September, 1986 the respondent filed a suit in the Court of  Subordinate Judge, Jeypore being Money Suit No. 417 of 1986  claiming a sum of Rs.8,93,659.91/- with pendente-lite and  future interest @ 18% per annum.   The defendants in the said  suit who are respondents No.2 to 4, herein i.e. State of Orissa,  the General Manager, Upper Indravati Project and the  Executive Engineer, Indravati Dam Division filed written  statement denying the claim, except for a sum of  Rs.94,006.40/- and prayed for dismissal of the suit. The  admitted amount was paid in November, 1987.  The suit was  decreed on 20th March, 1991 for Rs.7,03,375.29/- along with  pendente- lite interest at the rate of 12% and future interest at  the rate of 9% p.a. on the principal amount of  Rs.6,51,077.29/-.         The respondents No.2 to 4 filed an appeal before the High  Court which was dismissed.  Pursuant to the enforcement of  the Orissa Electricity Reforms Act, 1995 and Orissa Electricity

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Reforms (Transfer of undertaking, assets, liabilities,  proceeding and personnel) Schemes Rules, 1997 framed  thereunder, the Upper Indravati Hydro Electric Project  alongwith all its circles and Divisions with all assets and  liabilities was transferred by the State Government to the  appellant with effect from 1.4.1996.  Since the appellant was  not a party in the First Appeal, prayer for permission to file  SLP was made and has been granted, and that is how the  appeals have been filed.  As noted above the High Court  dismissed the First Appeal and the application for review filed  by the appellant was rejected by the High Court on the ground  that no case for review was made out.  At this juncture it is to  be noted that certain stands which were not highlighted in the  First Appeal were sought to be introduced by the appellant in  the review petition.         Learned counsel for the appellant-Corporation submitted  that basically two issues were considered by the High Court.   They related to (1) whether any extra work was undertaken by  the respondent and (2) whether damage on account of idle  labour was payable. State’s stand was that Clause 11 of the  Agreement clearly indicated that M-150 is purely an extra item  and as such the plaintiff i.e. present respondent would be  entitled to receive payment as per schedule of rate of 1982.   The High Court proceeded on the basis that though the work  in question is not stipulated  in the agreement, it was known  to the parties concerned that there was a change in the design  and as given in the drawing (Exhibit N), the execution of M  150 grade concrete work was necessary.  This according to  learned counsel for the appellant runs counter to the  observation of the High Court.  The stand of the respondent  before the courts below was that the Executive Engineer had  assured payment as per agreement for M-200 grade concrete  work for which the agreement was executed and the work had  commenced. As there was no official communication in that  regard, the respondent informed the Executive Engineer to  allow him to commence the work and confirm the  arrangement.         Learned counsel for the appellant further submitted that  it has not been established that any assurance was given.   Even if it is conceded for the sake of argument that any  assurance was given, the same is clearly unauthorized and in  any event the respondent himself accepted that this was an  extra item of work and that the schedule of rates applicable in  1982 were applicable.  Strong reliance was placed in this  regard on a letter purported to have been written on 30.9.1985  by the respondent.   The other item awarded which was questioned related to  payment for idle labour. It was submitted that the time period  for completion of work expired on 1.5.1985 and even if the  claim of the respondent that there was extension up to  2.7.1985 is accepted, the courts below were not justified in  granting compensation for idle labour up to 6.1.1986.  It is  submitted that the High Court has not given practically any  reason, to uphold the award in respect of these items. So far  as the first item is concerned, the High Court merely observed  as follows: "In view of what has been stated above, we are  inclined to concur with the finding of the  learned trial Judge that the plaintiff is entitled  to be paid for the M-150 grade concrete work  at the rate for M-200 grade concrete work."

Similarly, it was submitted that in regard to the claim  relating to idle labour the High Court did not even consider as  to the period by which the work was to be completed.  If no

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extension of time was granted beyond 2.8.1985 which  according to the courts below was the last date by which the  work was to be completed, the appellant could not have been  directed to make payment for a period (a) from 26.2.1985 to  13.4.1985 and (b) from 3.7.1985 to 6.1.1986.         In response, learned counsel for the respondents  submitted that both the trial court and the High Court have  analysed the factual position and have worked out the  entitlement of the respondents and there is no infirmity so as  to warrant any interference.   We find that several relevant factors have not been  considered by the High Court; for example the effect of the  letter purported to have been written by the respondent-  Santwant Singh Gill.   The relevant portion reads as follows :         "In the meantime, due to change in  design, I was asked to do plain concrete in  place of masonry.  This item of work was not  contemplated in my agreement. However, I  have done the plain concrete at the schedule of  rate."                                  (Underlined for emphasis)

       The High Court has not made any effort to find out as to  whether the work in question was extra work was and/or  covered by agreement.  If it was covered by the agreement, the  question of assurance, if any, given as claimed is  inconsequential.  If it was a part of agreement it was to be  covered by the rate stipulated.  In that event there is no  question of any assurance having any role to play. This aspect  has also not been considered by the High Court.   Additionally, as rightly pointed out by the learned  counsel for the appellant, if work was to be completed by  2.8.1985 as claimed by the respondents, the question of any  payment being made for idle work beyond the said date does  not arise.  This aspect was also required to be analysed by the  High Court which has not been done.   In the fitness of nature, therefore, the High Court should  re-examine the matter on the aforesaid two aspects and decide  the matter in accordance with law.  So far as the connected appeal is concerned we find that  the High Court rightly held that a case of review was not made  out on the grounds apart from those which we have dealt with  in the connected appeal. Since the basic issues relating to  alleged grievances were not placed for considered before the  High Court earlier there was no scope for entertaining a review  petition.  The High Court had therefore rightly rejected the  review petition.  The said appeal stands dismissed.   As noted above in the appeal relating to the First Appeal  before the High Court basic issues are to be examined and,  therefore, the re-consideration is to be limited to the two  issues indicated above.         The appeals are accordingly disposed of.  No costs.