~z \ COURT OF CHHATTISGARH AT DjVJSIONBENCH SHRI H.L. DATTU, CJ & HON'BLE V.K. SHRSVASTAVA, J. C!vj}Bev[sion_No,_31__Qf_20Q6 GA/. Rathore, son of Shri 'Vishram Rathore, aged about 70 years registered An!!i Contractor, Keikarapara, Raipur (CG). Versus Non-apDlicante 1) State of Chhattisgarh, Through the Secretary, Water Resources Department, D.K.S. Bhawan, iVlantralaya, Raipur (C.G.). 2) The Executive Englneer, Lower Mahanadi Division, Raipur Present: Shri BP Sharma, counsei for the petitioner. Shri Vinay Harit, Dy Advocate Genera! for the State. ORAL_ORD.gR (Passed on 14m March, 2007) • The foliowlng orai order of ' the Gourt was by Vljay Kumar Shrivastava, J. This Is a revlsion under Sectlon 19 of the Chhattisgarh Madhyastham Adhikaran Adhiniyam, 1983 {forshort "the Adhiniyam, 1983") preferred by the applicant against the award dated 15-2-2006 passed by the Chhattisgarh Madhyastham Adhikaran, Raipur (for short "the Adhikaran") 'm reference petitlon No.16/2005 whereby Rs,1,00,116/M, a part of .the refusing remainder has awarded in favour of the appiicant. 2) Briefly are that the was work of remodeiing of Mahanadi ms.in cana! from 50 KM to 56.38 KM group No.1 vide written agreement No.S/DL of 1982-83. The work contract was awarded under written agreement. As per the nomenclature of the vvork, the appiicant had to do excavatlon in aii types of soli aione, but most of the reaches were rocky ar§d unless the rocks are it was not possible for hlm to maintain the desired base of the progress of assigned work, therefore, he requested the authorities for remova! of pltehing stones so that the work may be taken up in proper sequence and asked for iayout. The applicant gave his wl!!ingness to do the extra work l,e. excavation in DR, SR & HR at the rate of 69% above the USR wlth separate payment and on assurance given by the non- appiicant No.2 did excavation in rockystrata. Appllcant's work was checked and measured, but the extra item of DR and S'R was not valued at applicant's quoted rate of 69% above the USR. Appiicant aiso did work of spoi! cutting, but his work was not vaiued at a rate of 69.41% above the USR. As a resu!t of those, short payment of Rs.8,09,309^20 and Rs. 1,25,095=00 respectiveiy. Tcawards check and- the payment to RsJ ,57,830S=75, Hls work was not measured and his contract was repudiated by the State Government thereby he sustained !oss of Rs.61,120=00 and Rs.60,000=00 respectively. 3) The ciaim was not amicably; therefore, the dispute was referred to the then Chief Engineer, who was appointed as Soie Arbltrator in terms of the contract, who passed award. Dissatisfied with the award, the same questioned by the before the District Judge, Ralpur. The District Judge, Raipur, set the award, Thereafter the Chief Engineer by his 25-7-1990 3 directed the appiicant to submit the reference before the Arbitration Tribuna! and accordingly reference was moved. 4) Non-appiicants contested the ciaim, on the ground that as. per. agreement the applicant was required to do the work of excavatlon In aii type of soil for canal earth work by making the canal sectlon as per design different cross sectlons, either cuttlng or filling ete. The rate was Rs.6.19 per cum. No separats, lead and iift was payabie and no extra payment, ciaim was aiiowed for addltiona! work, if developed during execution of the work. Since the work was an rate work and not a rate the demand of appiicant for payment of 69% above USR in respect of the extra work was not acceptabie, however, the rate of 12.94 per cum for excavation in ai! type of rocks of canal earth work wlth no separate of or !ift ete. was by the Superintendlng Engineer and was by the applicant. 5) The Adhjkaran after due hearing held that the appllcant was bound.to the as by the Superintending Engineer which was by him. Similarly he was bound to the measurement as recorded in connection with finai bill. Since the has completed the quantity to the as provided in the agreement, he was asked to stop the work that does not amount to repudiation of the contract. Therefore, having considered aii the ciaims ailowed a part of it by Impugned award. 6) Learned counse! for the appilcant contended. that the appijcant was permitted 'to carry out the work of excavation of rocks and his offer to charge rate of 69% above USR was accepted by the Executive Englneer, therefore, the Adhikaran by disailowing the ^ ciaim misconducted the proceeding. He reiied on document Ex.P/7 and piaced his reliance upon the decision of High Court of Alihabad rendered in the matter of of UP» vs. & Co» reported In AIR 1977 ALL 28. On the other hand, tearned counsei for the State supported the award and opposed the contention raised by learned counse! for the appiicant. 7) Sectlon 19 of the Adhiniyam, 1983 as beiow: "19. High Court's power of revision - (1) The High Court may suo motu at any time or on an application made to jt within three months of the award by an aggrieved party, caii for the record of any case in which an award has been made under this Act by a requisition to the Tribunal, and upon of such requisjtion the Tribunai shaii send or cause to be sent to that Court the concerned av/ard and recorci thereof. (2) If it appears to the High Court that the Tribunal - (a) has exercised a jurisdictjon not in it by iaw; or (b) has to exercise a jurisdiction so or (c) has in exercise of its jurisdjction i.!legai!y, or with materiai irregularity; or (d) has misconducted or the proceedings; or (e) has an which is invaiid or has been jmproperiy procured by any party to the proceedings. the High Court rnay such order in the as it thinks fit. (3) The High Court in any revision under this section exercise the same powers and follow the same procedure as far as may be, as it does in deciding a revision under section 115 of the Code ofCivil Procedure, 1908 (No.5 of1908) (4) The High Court shal! cause a copy of its order In revision to be certified to the Tribunai. : For the of this section, an award shaii include an sinterims award." From bare reading of the above provision, it Is evident that the scope of r^vision enshrined in the above provjslon is very iimlted. Jn case proceedlngs and award passed by the Adhikaran wi'thin the (a) to (e) of sub-section (2) of Section 19 of the Adhiniyam, 1983, Court may make suitabje orders, otherwise no option, but to the revision remains with the Court, 8} Sections 2 (1) (i) and 3 of the Adhiniyam, 1983 reads as beiow: "2= Defjnltions«—(1)!n this Act, uniess the-conte:<t otherwise requires,- (i) 'WQrks-coniracf an agreement in writing for the execution of any work reiating to construction, repair or maintenance of any bujiding or superstructure, darn, weir, cana!, reservolr, tank, iake, road, weii, bridge, cuivert, facton/, work-shop, powerhouse, transformers or such other works of the State Government or Pubiic Undertaking as the State Government or Publjc Undertaking as the Government may by notification, specify in this behaif at any of its stages, entered into by the State Government or by an officiai of the State Government or Pubiic Undertaking or its officiai for and on behaif of such Publlc Undertaking and Includes an agreernent for the supply of goods or materiai and a!i other matters reiating to the executlon of any of the works. 3. of Tribynal.- The Governnient by notifjcation an Arbitratjon Tribunai for resolving ali such disputes or differences pertalnlng to works contract or arising out of or connected with execution, discharges or satisfactiQn of any such works contract." From conjoint reading of the provisions, it Is that the jurisdiction of the Adhikaran is to resolve a!l disputes to work contract arising out of a written 9) !n th©case of of U.P. (supra), the High C-ourt of A!!ahabad thus: "The term sexfra( is In reEation to the works v^hich are not expressiy or impiiediy included in the origlna! contract and, therefore, not included In the original contracted price, provided the work is done wlthln the frame work of the origlnai contract, where the work done by the contractor for the Government vras on accaunt of the orai insfructions given by the Engineer in Charge and the work done was withjn the frame work of the original contract, held that the work was tiabte to be treated as exlra work and since the Govemment received its benefit, it is liable to pay the contractor for that work." Alfhough in a cwt suit wherein daim for extra work has been made such a ciajm coujd be adjudicated as held above, yet we doubt such a daim could be adjudicated or ailowed by an Adhikaran whose jurisdiction has been restricted under the law, even assuming that the Adhikaran has jurisdicfion to enter into such djspute. the Adhikaran has consfdered the said dispute and resolved it. 10) The Adhikaran apprsciated the dsspute raised by the appiicant in its award. Paras 14 and 15 of the said award read as beiow: "14. After comptetion of the work to tiie sxtent as provided in the agreement notice dated 24.12.1983 (Ex.P-10) was served by the respondents on the contractor, to finaiize the agreement according to its terms and condition-s, therefore it cannot be said that the respondente has wiftidrawn the work without compjetion. A tetter of petitioner dated 20.01.1984 (Annexure A-8) addressed to S.D.O. Smgation to whteh a copy of statement said to have been prepared at the time of preparation of supplementary schedute. Though jt is not signed jointly, wos made basi's by ttie petitioner for preparation of the final bill. A tetter of Executive Engineer dated 04.04.1983 (Ex.P-7) to Superintending Engineer makes it clear that during execution of work the contractor has reported that jn cutting portjon disintegrated rocks and soft rocks is appearing in some of the changes. The fect was also verified by the Executive Engineer during site inspection and the contractor wa& permitted to carry out the work in the above sfrates. Keeplng in vlew the progress of work the contractor had offered his rate to execute the work in above strata at the rate of 69% above the U.S.R. The Superintending Engineer v/as requested to take necessary action in this regard. The petitioner G.V. Rathore in his aflldavit has proved a tetter (Ex.P-6) proposing rates for excavation of the extra item, however, it has to be noticed that the letter of Executive Engineer (Ex.P-7) reiied upon by ttie petitioner, is simply a proposai to accept the rates proposed by the petitsoner and it cannot be taken as^pgroval by^ the higher authority. -7 15. The then Executive Engineer IVJ.P. Sahapurkar In his affidavit has made it clear that the rates of excavation jn ail types of rocks was settled as per supplementary schedule at the rate of Rs.12.94 cum and was approved by the ietter of Superintendjng Engineer 20.04.1984 which has signed by the contractor. The petitioner had carried no work Jn 54.74 Rm. and 55.13 km. therefore no measurements concerning to these piaces were recorded in the ?v1easurement Book. The department has never consented for payment of Rs. 1,96,949.81 before the arbitrator. Th©Superintending Englneer K.C. Dubey was deputed to verify the measurements, which he did before the then Executiye Engineer, and the contractor. According to this verification contractor had excavated earth to the extent of 1,40,498 cum and rock 26,858 cum. This has been recorded in the Measurement Book concerning fjnai blli at page 124 of Articie H and accordingiy it was settled that the petitioner shail be flnaily paid Rs.62,854.26. Since the flna! bil! was not accepted by the petltioner it js stil! iying unpaid. In our opinion therefore, the petitloner is bound to accept the rates as settied by the Superintending Engineer whlch was aiso signed by him. Simiiariy, the petitioner is aiso bound to accept the measurement as recorded in connection of fina! bjil because such measurements were carried out by K.C. Dubey, Superintending Engineer in presence of the petitioner." 11) Undisputedly there was no work contract in between the applicant and the State for extracting hard rock at the rate of 69% above USR and it js also evident that when applicant raised his claim the rate of excavation in al! types of rocks as per supplementary scheduie at the rate of Rs.12.94 per cum was settled and was under signature of the applicant accepted by him. IVIeasurement was recorded in presence of the applicant and flna! bii! prepared. !t was obligatory on the part ofthe applicant in the above circumstances to accept it, but he refused, therefore, the sald amount was allowed by the Adhikaran and the cialm of 69% a.bove the USR was rejected by the Adhikaran. Award passed by the Adhlkaran as a whole and in specific does not unveiis that the Adkhikaran exceeded its jurisdiction or misconducted the proceeding or acted othera/ise which falls within any of the parameter envisaged under Section 19 of the Adhiniyam, 1983 for calling interference by revisionai Court. 12) During the course of arguments, iearned counse! for the appiicant did not raise any other contention. 13) In the resuit, the revlsion is devoid of substance, therefore, it is dlsmissed. However, in view of the facts and circumstances of the case, parities are directed to thelr own costar Sd/- ChiefJustice Sd/- V.K. Shrivastava Judge