HISH COURT <y JUDIC^TUftE CHH^TTISeAftH : BIU^SPUft DIVISION BENCH /'/f ^' CORAM : HOhTBLE SHRI H.L. DATTU, CJ A HON'BLE SHRI V.(C. 5HRIVASTAVA, J. APPLECANT RESPONbB^TS Cwii Revjsion No.165 of 2006 Scycin Kumw Agrawd, Controctor, c^ed about 50 years, son of Shri SitarcOTji Agrawd, resident of Mdn road, j'anjgir, Distt.janj9ir Chaitpa C6 Versus 1) State of Chhattisgcrh rcpresented by Secretwy, Water Resources &sparlroent. DKS Bhwan, Raipur (C&) 2) Jhe Superintending Engineer, WKt>.. Bango Project Circte, Mochadolj 3) Tlie Executiv® Er^inser, Wofer Resources bepartment, Hasdeo Bargo Divisjon, Korba, CG \'^ Present; Shri Prateek Sh<a"mo. counsel for the a^iicant Non^ for the respondents. 06AL OR&^ (Pflssed on 14th March. 2007) Tl'ie foifowjng oral order of the Court wos passsd b/ Vyay Kumar Shrivostava, J< This is a revision filed under Section 19 of the Chhattisgarh Madhyastham Adhikarom Adhiniyam, 1983 (henceforth "the Adhiniyam") against the award dated 6-6-2006 passed by Chhatt-isgarh Madhyastham Adhikarcsi, Raipur (for short, Adhikaran) in reference petition No.35 of 1 2 2005 whereby an award of Rs. 8, 01,123/- a part of his claim has been passed in favour of the applicoBit caid rest of his cicim was refused< '/?r\. 2) Work contract for re-modeSiing and construction of cement concr^te iining in between reaches ft.&. 3700 to 5650 M csid R.&. 7565 to 8000 M of Hasdeo RSght Bank Canai was executed in terms of the tender. Period for con-ipietion of the work was 12 mon^iis inciuding rainy season. The work order was issued on 15-2-1988. Appjicant couid not comptete hs's work in 1iie stipujated period, but was aifowed to conti'nue liie work, he compSeted the work on 31-1-1992. Appiiccb-it was not gi'ven iay- out in time, from JuSy to October, water continued to fbw from 1+ie Couriai, Let-out of water by NTPC in the Right Bank Canal disrupted the applicanfs work. On 5-3-i988 and 14-4- S988 sudden reiesse of water broke the bunds constructed by the appiicesit. Applicant was instructed by SbO on 10-9-88 to provide CNS byers, but extro rate was SGBictioned on 16-5- 1989< Appiscant executed more than 30% of the earHi work< Appiicant claimed fts.60/- per cuin. however. the Chief Engineer has soinctioned rate of Rs,47,50 per cum^ In pcr/ment of running bills deiay was caused by the department. Appticant ctasmed fts.10,86,327/- for toss of profit ond overheads, fts.4,68,095/- as escafation, fts.2,19.072/- for non-pct/ment of his work, Rs.3,91,158/- for de-watering, Rs.2,62,261/- as br^ak of bunds, fts.4,61,077/- for extra item, Rs.1.81, 455/- of security deposit asid fts.8,28,752/- towards interest. 3) Non-appd'cants contested the cfoim by filing their* detaiied rep?y wherei'n it j's statecl that applicoint is not entitted 3 for his various claims. Learned Tribunai heard both the part-Ses and appreciated the evidence adduced by both 1+ie partSes cxnd passed the award as above. 4) We have heard learned counsel appearing for the appiicant ^ '\% 5) 5ection 19 of the Adhimyom is reproduced beiow: "19. High Court's power of revision .-(1) Tlie High Court may suo motu at oaiy time or on an flpplication made to it wilfiin three months of tiie award by on aggneved party, call for the record of any case jn which cn award has been made under 1+iis Act by issuing a requisition to the Tribunal, and upon receipt of aich r&quisition the Tribunat ^iall send or couss to be sent to that Court the concerned award and record thereof, (2) If it appears to tiie High Court that the Tribunal- (a) has exercised a jurisdiction not vested in it by law; or (b) has failed to exercise a juri^iiction so vested; or (c) has acted in exercise of its jurisdiction iltegaJly, or with material irregufarity; or (d) has misconducted itself or the proceedings; or (e) has macte cxn award which is invalid or has been improperly procured by any party to the proceedings" the High Court may make such order in the case as it thinks fit. n (3) The High Court- shail in deciding any reyision under litis section exercise the same powers Gind foliow the same procedure as f<&r as tnay be, as jt does in deciding a revision under Section 115 of the Code of CiviS Procedure, 1908 (No.5 of 1908). (4) TTie High Court shall cou% a copy of its order in reyssion to be certsfsed to the Tribunai, E^phnatiary For 1fie purposes of this ^ction, an award ^iaJJ inctude ayi 'Literim1 award." From bare readi'ng of 1fse above provision, it is evident that High Court nr»Gy Jnterfere with the award onfy in case of any of the conditions as ensht^ined in the above provision, are found pres^nt in the matter, 6) Applicant has put forltt grounds in his revision petition. Jhe grounds as enshrined in the petition are attempt to chafienge 1fie findings of the award/ No where in tha revision petition appJicant ajleges any of the allegations as enshrined in Ssction 19 of the Adhiniyairi, We are not sitting over as an oppeijate outhority to hear and put our decision on the factual aspects of ^fie award and Its finding by re-oppreciating the materiai fifed before the Tribunal. We have only to consider whe'Hier the award suffers from any of the dent as mentioned in the abov'e provision, 7) To o^preciate whether the award passed by the Tri'bunai fuiis wSthin CAny of the grounds as enshnried in Section 19(2) of r the Adhinjyanri. We have gone through 1fse award, ftejevant portion of the award is reproduc^cS. "11. We have heard learned couns^l for the partses wtd have carefy!jy perused the record. Petitioner &3ijan Kumar AQrowal in his affidavit has referr^d his documents and stated that the details of accounts produced by respondents are defective, It has further beer? ^ubmJtied that jn spite of his different opplications (Ex.P-17, P-18, P- 34, P-41,P-42 & P-43) for extension of time, no ordsrs were passed by the respond&nts fltfid no nates of extra item were also settled by the department No not2Bce was served for recoyery of any amount frosrs him in absence of which tiie department is estopped from clajrr»ing the sksme. In his cross-examination the petstioner ha^ admitted 'that before submitl'in9 his tender he had fuliy made himseif conversorit with the nature of work. He was abo awarcted separate tender for construction of bund situated below the cross regutator of the NTPC C<xnal. Subsequently he horf to face the seepage of water from N1?C cross regubtor. 12. It has further been admitted by the petstioner sn para 39 of his cross- examination liiat under clause 4 (a) of ifie Speciai Condition it was his responsibiiity to erect coffer dans, diversion and piping etc. at his own cost. However, the insistence of the petiti'oner is that he is not !iabi@ for the ss^oge w release of water from tiie NTPC cross regulator, He wos not sure as to when he has submitted his construction ppogromme. In para 42 he was also made to admit that up to 30% of the work of excavation he was to be paid at the agreemented rate while the remajning extra work at lf»emutual agrced rates. He has aiso r- admitted payment of running bilis but what is disputed te lliat 1+iey were not paid in timc. No royalty was paid by him to the Collector. In his subsequent affidavit dated 24.01.1998 the petitioner has fiubmitted that the royalt/ was paicl by him of which 128 receipts are being produced. Simitarly 19,000 MT cement bags were &)ld by him to the authorized agent, certificate to that affect have also been fiied. Jhe expenses of de-waterfng were entered in the de- watering register (Artide-A to D). He has ala? maintained s^parate register (Articte-E) for the monthly expenses wil+i regard to ths staff ©mployedfor the purpase of this work- 13. R.K.Verma the then S.D.O. who looked after this work from 27.07.1987 to 06.11.1993 has stated in his affidavit that no construction progr'amme wos submitted by the petitioner despite various reminders. Out of the work of 52.09 lakhs during 8 months period the petitioner could only work for Rs. 8.50 hkhs. TTic petitioner coulct not maintasn the proportionate progress in the work and his ploBining and work were very sbw. Under clause 32 A of •tf»eagreement the price escalation clause was not acceptable, The petitioner was fu!ly aware of the site conditions and leakage water through cross regutator of NTPC vriiile quoting the rates, There was delay of 24 monAs in completion of the work/ however, under ciause 6er^ral Condition No, 50 the petitioner was ailowed to continue the work wjthout any pena! ctauds. The department had constructed a cross bund at R.D. 3620 M for the Jeoikage of water through NTPC cross regulator which was wi obvious feature, So far as the CNS iayer is concerned, the extension of time was already recommended and he was asked to continue his work. Prolongjng of Khariff irrigation is aiso an obvious feature. So far as the Rabi irrjgation during season of 1990- 91 in ony kind of probiem in alt eventualities are considered by the contractor whsle quotin9 the rote< 14. Shri R.K.Verma the then S.&.O. in his affjdayit hos further corroborated that it was known to the petitioner that 1+ie NTPC Project and its activities coutd not be stopped in the national interest cnd the teakage of water 1+irough the cross regufator wos an obvious and common feature. Furl+ier in chapter 6 of specifications ali machinery work of canal, at page 40 under clause 4 of nature of functions were atso weil known to the petitioner, therefore this kind of complaint does not hold good. The work of CNS layer is an extra item far which payment was made and the petitioner had never raised ony objections at that time. Simstarly Itie petitioner had received payment for cofnpiete items i'ncluds'ng cojicction of material, laying, consolidation and dressing etc* The petitioner is not entjtled for any extra cldm for de-watering as it was not an extra item as per agreement. The bunds have to be constructed by him at his own cost. Excavation in a{{ types of ,a?ils has olready been submitted to the goyernment which can be pajd after rcceiving aanction, however, he has aiready been provisionally paid for 75% of the work on this count 15. Similar affidavit has also been submitted on behalf of ftao Balraj Singh the 1+ien Executiye Engjneer, however, he has no knowledge regarding finaf bili of the petitioner, He has also admifted iliat t.he cost of SMspage of NTPC water was due to mistake in cross regutator for which a bund was erected, This fact was well known in advonce to the petitioner. The petitioner wa5 separately awarded a contract for de- watering the leakage water, He has admitted in his cross examination 1+iat dyrmg rainy 8 period no desired progress in 't+ie work could be made due to rise of water bvel in the aanal, He has also admitted that no final decision wos taken wj1+i regard to extension of time applied by the petitioner. 16. ^enerai Condition ciause 9 of the petstioner's agreement (Artscte-A) provides 1+iat recovery of -riie sums advanced may be deducted froiri the contractor's biii in the suitable perceritage of the billed amounts, ^eneral condition No,18 (h) makes it clear that tiie contractor shail be responsible for •^e. correct sett-ing out of all works Qt his cost and he shajl execute the work to dignment/grade ond leveis c&s shown in the drawing^ wid as directed by the Executive Engineer and shall check these at frequent intervais- Cicause 19 of -tfie fieneral Condition is of paramount importance for the purpose of -this case which makes it clear that it shaii be the responsibility of the contractor to fully acquaint himself with the nature and the bcation of works, queries, local conditions csid other aspects which are relevant to the work, 17. Here it wlti be relevant to mention ctause 32 of 1+ie ^enera! CQndition which provides that no ciaim for price escalation on account of <any cost whatsoeyer shaJJ be entertained. Clcuse 33 of Seneral Condition further makes it clear thut if for caiy reasons the contractor or his authorized agent is not avaitebie and work weis suspended to avojd recording of measurements, the department shall not entertain any ctaim from 1+ie contractor for any loss incurred by him on tihis account, provided -ttiat the controctor was served 3 days notice in advance. The contractor ^iall submit his bili of the work done, to th& Executive Engineer on or before 10 day of each mon1+i, The Executive Engineer sha!( verify the bili ond arr<mg& for ad^nissjble payment as far as possibie within 10 days of its prefisntation, after deducting from it a!l the amount as per terms of 1iie contract. 18. Ciause 36 A of -tfie ^enerai Condition makes provision for royalty charges 1+le amount of which shall be refunded by 1+ie CoJIector according to the procedure prsscrjbsd in this b&half. Cbuse 38 of Seneral Condlition also prQvides -that the contractor shaii at his own expenses arrange for the safety in his operation as required includin9 tiie provision in 1fie &xfety Manuai of the Central fiovemment, 19. Ciause 45 of tiie (Seneral Condition prescribes 1+ie procedure to be foltowed in case of termination of the contract by the empjoyers. Where the contractor neglect or fails to proceed with the work with due diligence or he violates any of -riie provisions of the contract, the Executive Engineer may give a 14 days notice identsfying deficiencies in performance and demanding corrective action, After such notice 1fse contractor shal! not remove from the site, any plant/ equipment ond materials, If the contractor fails to take satisfactory corrective action within 14 days after receipt of the notice, the Executive Engineer will termjnate the contract Sn whole or in part. 20. Cbuse 50 of the Senerai Condition of contract deals with extension of time and provides that ti'me shali be considered as 1+ie essence of 1+se contract. If, howeyer, the failure of the contractor to compiete <my work as per the stipubted dates, referred to above, arises from defays on the part of ^fie government in supplying the materiat or equipment, it has undertaken to supply under the contract or from delay in handing over sites or from increases in the quantit^ of work to be done under the contract, or force-majure, an appropriate 10 extension of time will be given. The contractor shali request such extension wi1+iin one month of the cause of such delay and in caiy case before expiry of the contract period. 21. In so far as deiay in layout is concerned, it depends on submission of work plan by the contractor as well. In case of Jaaieet Sinah Vs. State of Madhya Pradesh and OtherS . reported in 1997 ATLR 62 where layout wxs given within the preparatory' period of 30 doys, it was held that it <x»inotbe ssid to be of unpeasonab!e deJay. In case of P.C.Vajpa} Vs. State of Madhva Pradesh <& Otiier-s, reported in 1998 Arb. W.LJ. 58 it has furliier been clarified that suppiy of design and drawings at one time is rsot necessary. It may be partly supplied, so as not to hinder 1he work, Now, in a> far as the present case is concemed, the petitioner had started raising the demands of tayout wi-thout submitting cmy work pion, whiie the department by letter dsted 27.10.1990 (Ex.&-9) <& 16.02.1989 (Ex.D-11) had asked the petitioner to submit the work ptan and to expedste 1+ie progress of work. It is only thereafter, that the petitioner submitted his work plan through tetfer dated 22.09.1990 (Ex.P-37). The petitioner after submission of the work phn was never again heard to compbin dbout non- supply of ony layout Thus the department was not at fault insofar as the Ja/out is concerned. 22. TTie contractor/petitiorier has laid much stress on the complaint of leakage from cross regulator oind excess fbw of water by NTPC in the surpius channei. The work was further obstructed by release of water in Canal for Kharrif and Rabi irrigation puryoses. "Hie reply of department, in this respect wos two fotd. First, the contractor wo^ well aware of all these factors which :j 11 were of obvious regubr features and, secondh/, the contnactor mxs sfow in progress of work and did not care to compiete the work wi'tfiin stipulated period of contract Why did he albwed time to pass witiiout completion of work and waited for the natural eventuaiities to take place? Even otherwise QS per special condition 4(a) of the agreement the contractor had to arrange for diversion bunds, dewatering and chwineb at his own cost and therefQre ccyinot hotd the <tepartment pe^onsible for {oss, if any, suffered on account of such hcypenin9S. In Ihe circutnstonces, in our considered opinion the petitioner is not entjtled to be compensated for any loss suffered by him on account of breach of bunds and dewatering. 23. The department in its reply (Ex.P-21) of the fina! notice of contractor had, however, admitted prolongation of Kharif irrigation. It has also accepted Rabs trrigation in the year 1990-91. In our opinion, therefore aithough liiere wos initi'al delay on the pwt of the contractor, but his continuous fiJin9 of cpplications for extension of time was forwarded for sanctson to Ihe higher outhorjties witiiout propos(n9 any penalty ond he wis also aliowed to continue the work in anticipation of 1+ie formal grant of extensions, therefore, the department is estopped from raising 1+ie plea that the contractor has to suffer for every toss for Ihe reasons, which he could not be ©^pectedto anticipate in advoince, Jhe petitioner <ttierefore in our opinion ss entttled to cbirn infructuous overheacls to the extent found proved* 24. Jnsofar as escatation of price is concemed, it has been denied in tfie agreement itseif. Jhe law is weli sett'led on this point. In cass of ft.R.Aarawal Vs. 6oyernment of Madhya Pradesh ond Others, 12 li^^n^lp- reported in 1994 ATLR 57 it has been observed that where the escalation clau^ does not exist or is scored out no1+iing is payable on account of escalation during the originai contract period. In case of Continentai Constniction Co. Vs. State of Madhya Pradesh. reported in AIR 1988 SC 1166 it has been held 1+iat when there is not only absence of escalation cicuse but there is also prohibjtion to the giving of escalation in the a9reement, 1fie contractor cannot be given any escaiation, 25. Since it is sn admitt'ed fact that the petitioner was awarded two other contracts in the same vicinity, in the circumstances it has been heid in case of Jaadish l^jmar Sdhita Vs. State of Maclhva Pradesh & Others reported in 1993 ATLR 161 anc! M/s. Ferro Concrete Co. Vs. State of Madhva Pradesh, reported in 1993 ATLR 348 that 1+ie question of suffering oaTy loss of bbour and idSin9 of moichines and plont does not arjse. 26. Regarding deicr/ in making pcyment, it hos been obseryed in case of AnshumGn ShukJa Vs. M.P.S.T.D.C. reported in 1995 ATLR 229 that every deiay in making poyment of running bills cannot aajse hindrance to the contractor as this element of deiay is an inbuijt element in Ifie execution of a Works Contract, which involves irtuStifarious activity by both the parties and, iherefore, a routine deloy or casual delay shdi not be 9uidin9 factor. In the present case the departtnent has filed a list of 19th running bWs (Ex.P-56) which were paid to 1he controctor, indicating that no ofcnorma! delay WGS caused in -tfie {MEyment. 27. ftegarding infructuous overheads and profits, we may from the facts lsuFtd circumstcncas of tiiis ca^ conveniently gather -tftat contractor himseif to be btatried 13 for the delay and contributed to the cletay in compjetion of 1+ie work. In such a situation, the Madhya Pradesh Hi9h Court in case of State of Madhva Pradesh Vs. Mathura Madnani (C.R. No. 479/90. order dated 22.03.1995) reduced the overheads, 50% poyable to the contractor. Since there was no curtailment in the work, it has been held in case of M/s. Jivan Lai Jain Vs. Madhva Prade^i ^raha Nirmwi MandaJ reported in 1997 ATLR 50 that there is no question of contractor to have suffered any loss on accQunt of future profsts- 28. The claim for extra item has not been totally denied by 1+ie respondents. The case for finajizjngali rotes for extra items of earth work is said to be pending with the Government, however, during pendency of the case, the proposed finai bill (Article-H) has been fiied on 16.09.2002. This finai bili js sti!l in-compiete in tiie senss -tfiat the nec»ssary deductions of Rs. 46,132/- were not made. After calcuSating the payment of extra rates of Rs.47.60 per cum oaid the provisional amount already paid to the Contractor fts.4,38,520/- stiii required to be poid to the Contractor under the final bSJI. Rs.44,000/- deducted from the 19t(1 running bili hos also been adjusted in this finai bill. 29. ftegarding payment for the work done but not patd, the petitioner maintains that he had aUended thc site on 08.04.1992 but no fimxi mecfiurements were recorded by the S.D.0. in absence of necessary directions form 1+»e hi9her oajlfiorities. This has been denied by the department. because the contractor had fai$ed to turn up on liie site and did not accept the final measurement recorded in his absence, despite the notices (Ex, D-13, 14 A 15) issued to him. In the circumstonces thepetitioner is now bound to accept tiie fina! measurements recorded in his absence ond had J^t ony^ right to 14 chaiienge the same, Since the final biSJ includes aJJ the quantity of work QS vrell as the rote of c^reed extra items, Ihe petitioner is not entitied to ciaim any other item under th& head extra-item or the work done butnotpaid, 30, Although the petitioner has claimed •nterest at l^e rate of 18% from l^e date of notice 17.08.1992, however, in our opinion Ihe rate of bonk interest during ^he last few years, have considerable stipped quite low and since the delay in cosripietion of work is not atfrrsbutabje to th& department, the rate of interest deserves to b& allowed is Rs.6% per annum. It has been observed in ca^ of Pwidey Cpnstrvction CorROany Vs. State of Madhya Pradesh and Others), reported in 1998 (1) ftaj 349 by the M.P. Arbitration Tribunal, that under the provision of Section 3(1)(8) of the Interest Act ante!ite interest can be albwed on the amount wrongfully wi-riiheld from the date of demand notice. Ssnce in the instant case the depar'tment took un-necessary long periQd in settlsng the clatm of the petitioner he is entitled to claim not only anteltte interest but also the interest pendant itte, subject to, however, raisin9 the same from the date of aword tili its reaiization at the pate of Rs.l2% per annum. 31. To conclude, for -tiie ressons aforesasd, thss reference petition is partly allowed and it is directed that the petitsoner is entitied to 50% of the loss of overheads, that 'fS approximately Rs.1,81,138/-, Rs.4,38,520/- of the final bill including the antount of work done omd extra rates and Rs.1,81,465/- as refund of sscurity deposit, total Rs.8,01,123/- together with interest on this ainount from 17.08.1992 at the rate of 6% per annum wid further Rs.l2% per annun? from 1+ic date of awxrd titl its realization. In facts and circumstances of the case 15 there is no order as to costs which shall be bom by -rfie parties themseives". 8) From gos'ng through 1+ie above portion of the award, it is manifest that the Tribunal very minutefy considered documents and evidence and clauses of the agreement cuid after conspicuous appfMt€ciation of the materiai gave its finding and partly aitowed the clainfi of the appJicant 9) We are of the considered view that the Tribunal did not exercise the Jur'isdiction not vested in st by law or faiied to exercise its jurisdiction. TTie Tribunal did not mSsconduct itself or proceedings* Jhe award pass^d by the TribunaS does not suffer from SIIegaSity or materia! i'rreguiarity. iO) In the resuft, we decline