^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR CIVIL REVISION N0. ^^ OF 2007 BETITIONER ^. M/s Mahavir Construction .^'^ L:"\^''' <.'<5>'t" \\^ ^- ^ Co.. Registered Contractor .yfe^ ^ .t^y ^'- ^' A-II Class, Oongargaon, District Rajnandgaon (C.&.), Through Trilok Chand Jain, Partner. Vs (^SISPONDENTS -p^ x',;yy^ water ^y ^' 1. State of Chhattisgarh, Through the Secretary, Resources Department, b.K.S. Bhawan, Mantrataya, Raipur (C.G.) The Executive Engineer, Irrigation Division, Gariyabandh, bistrict Raipur (C.G.) ht REVISION UNbER SECTION 19_OF_THE CHHATTISGARH MADHYASTHAM AbHIKARAN AbHINIYAM. 1983 L-. HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.IVI.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN, JJ Petitioner Respondents Civil Revislon No. 55 of 2007 Vs M/s Mahavir Construction Co., Rajnandgaon (CG) State of Chhattisgarh and another -^ Order For Consideration Sd/- G. Minhajuddin Judge l^ .12.2011 HON'BLE SHRI I.M. QUDDUSI. J ^ ^^<-c- Sd/- LM.Quddusi Judge /<.12.2011 Post For Order On ^ December.2011 Sd/- G. Minhajuddin Judge /^^ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ Civil Revision No. 55 of 2007 Petitioner M/s Mahavir Construction Co., Rajnandgaon (CG) Vs Respondents State of Chhattisgarh and another fhiB>N^ ,J Present: Mr. B.P. Sharma, counsel forthe petitioner. Mr. Vinay Harit, Dy.-Advocate General for the State/respondents. ORDER (Passedon \^ December, 2011) 4. Per G. Minhaiuddin.J I 1. This civil revision has been filed under Section 19 of the Chhattisgarh Madhyastham Adhikaran Adhiniyam, 1983 (in short "the Act, 1983") against the award dated 13.3.2007 passed by Chhattisgarh Madhyastham Adhikaran, Raipur (in short "the Tribunal") in Reference Petition No. 15/2005, whereby the reference petition filed by the petitioner under Section 7 of the Act, 1983 has been dismissed. 2. Facts not in dispute are that the petitioner's tender for construction of main earthen bund from Chainage O to 12 and from Ch. 18 to 30 including puddle filling, compaction of earthwork, two sluices at Ch. 7.5 and 22.5, approach channel, spill channel together with waste weir of Kothigaon tank, was accepted by the respondents at the contract amount of Rs. 12,69,7577- being 53.91 above USR enforced from 1.12.1977. As per agreement executed between the parties on 15,3.1982, the work was to be completed within 9 months, excluding rainy season. Thereafter, work order was issued on 15.3.1982 by the respondents wherein the stipulated date of ..:^:-^3 '~:1^ ^r^'^ ut'«d 1 .r ,J ' completion of work was mentioned as 14.3.1983. Since the petitioner could not complete the contract work within the stipulated period, extension was granted on two occasions, firstly up to 14.6.1983 and secondly, up to 14.12.1983. However, inspite of extension being granted, the work was not completed by the petitioner and he left the site. Thereafter, final measurements were taken after giving notice to the petitioner and final bill was prepared, which the petitioner refused to sign. Consequently, the respondent department withheld the security deposit of the petitioner and rejected the claim of the petitioner for payment of security deposit and loss of infructuous overheads with interest thereon. 3. The case of the petitioner, in brief, is that pursuant to the issuance of work order under the contract, he had taken all possible efforts to complete the work by deploying his manpower and machineries on the site, but due to non-arrangement of watering and compaction unit by the respondent department, delay in supply of RCC Hume Pipes and cement, non-handing ov^r of site for waste weir and spill channel, non-payment of running bills resulting in shortage of fund, non-acquisition of borrow area of earthwork and non-discharge of contractual obligations on the part of the respondents, that there was delay in commencement of the contract work. The trees standing on the work site created hurdles in excavation work and further, permission of various departments could not be obtained by the respondent department, on account ofwhich, there was delay in executiQn of the contract work. The running account bills of the petitioner were not paid by the respondents in time. Although on two occasions, extensions were granted to the petitioner, but even after :3^ ^ ":^..^ ? "'Q i %.,.-.^"" c^ those extensions, the work could not be completed within the extended period due to non-resolving of the abovementioned hurdles by the respondent department, on account of which the manpower and the machineries deployed by the petitioner were lying idle on the work site, resulting in huge financial loss to the petitioner. The above contention of the petitioner finds support from the letters of the Sub Divisional Officer of the respondent department, which were written to his higher authorities. After making final measurement and preparing final bill, Rs.80,000/- was not paid to the petitioner and in addition, his security deposit was also withheld and not returned, against which the petitioner preferred an appeal before the Superintending Engineer, Irrigation Circle, Raipur, whereupon the S.E., vide Memo dated 1.2.1989 (Ex.D-14) directed the petitioner to apply for his claim to the M.P. Madhyastham Adhikaran, Bhopal, in accordance with the M.P. Irrigation Deptt. Bhopal No.F-19/3/86/Medium/31 dt. 21.10.1986, as the petitioner's claim is more than Rs.50,000/-. Thereafter, the petitioner preferred a reference petition under Section 7 of the Act, 1983 before the Tribunal, which came to be dismissed by the impugned award by the Tribunal. 4. The respondents have denied all the adverse allegations made against them by the petitioner and contended that the petitioner's work was, right from the beginning, not satisfactory. On two occasions, he was granted extension for completing the work, however, he failed to complete the work and thereafter, without applying for further extension of time to complete the work, he left the work. The petitioner, after accepting the final measurement, ,\- f (^) ^•^ refused to sign the bill knowing that it is a minus bill, and therefore, his security deposit was not refunded to him. The claim of the petitioner under infructuous overheads has not been proved by any documentary evidence. Moreover, after the petitioner was directed by the Superintending Engineer on 1.2.1989 to approach the M.P. Madhyastham Adhikaran for redressal of his grievance, he did not file reference petition before the Adhikaran within one year of the said direction and therefore, the reference petition filed after about more than two years is time barred as per Section 7-B of the Act, 1983 and is liable to be dismissed. 5. Learned counsel for the petitioner has contended that the petitioner could not complete the contract work due to non-discharge of contractual obligations on the part of the respondent department. The termination of the contract and non-payment of the balance amount of Rs.80,000/-, security depositof Rs.68,000/- and Rs. 4 lac as loss incurred by the petitioner under infructuous overheads alongwith interest on that amount, was illegal and the reference petitipn filed by the petitioner under Section 7 of the Act, 1983 before the Tribunal has been wrongly rejected without considering the admission made by the Sub Divisional Officer of the respondent department in his letter to his higher authorities. 6. On the contrary, learned counsel for the State/respondents has contended that right from the beginning, the work of the petitioner was not satisfactory and not as per time schedule, for which he was reminded from .time to time by the respondent department. The respondent department has discharged its contractual obligations in time and in fact, there had been default on the part of the petitioner. (^) 7 11 running account bills were paid to the petitioner and as Kathigaon tank scheme had received administrative sanction on 23.5.1980 i.e. before25.10.1980, therefore, there was no hurdle from the various departments under the Forest Conservation Act, 1980, so far as felling of trees and excavation of earth and boulders from various areas are concerned. Despite giving two extensions up to 14.12.1983, the petitioner could not complete the work and thereafter, neither he applied for further extension nor completed the remaining work. While preparing final bills on the basis of final measurement, a sum of Rs.80,000/- was found to have been paid in excess to the petitioner and therefore, his security deposit amount was withheld. In these circumstances, the reference petition filed by the petitioner has rightly been rejected by the Tribunal. 7. Heard learned counsel for the parties, perused the record of the Tribunal as also the impugned award. 8. It is not in dispute that the work order was issued on 15.3.1982 and the work was to be completed till 14.3.1983. It is also not in dispute that two times extensions for completing the work were granted to the petitioner, firstly till 14.6.1983 and after that, till 14.12.983, but even after expiry of the extended period, only 85% work was found to be completed on final measurement being made. 9. On behalf of the petitioner, Jethmal Jain, who is General Power of Attorney Holder, has submitted his affidavit and on behalf of the respondents, affidavit of B.D. Joshi, Superintending Engineer, has been filed. Both the witnesses have been cross-examined. B.D. Joshi, has stated in his affidavit that all the contractual obligations were duly discharged by the respondents in time and there was no L-^'11 obstacle from the various departments in respect of felling of trees and excavation of earth and boulders, as the scheme had received administrative approval on 23.5.1980 i.e. prior to 25.10.1980 and the work to be done by the respondent department had also started before 25.10.1980. There had been delay in execution of the work on the part of the petitioner and despite granting extensions for two times till 14.12.1983, the petitioner could not complete the contract work and neither he applied for further extension nor completed the remaining work and left the work site. 10.B.D. Joshi, S.E., has also stated in his affidavit that as per agreement, the petitioner was to submit the work programme and was also expected to appoint a graduate engineer, but neither of these conditions was fulfilled by the petitioner. On the above point, the statement made by B.D. Joshi, S.E., has not been challenged in the cross-examination by the petitioner. The respondent department's witness B.D. Joshi, has specifically stated in his cross- examination that the work of benching was done departmentally, even prior to issuance of the work order to the petitioner on 15.3.1982 Even on this point, the statement of Shri B.D. Joshi has not been challenged and not even a suggestion has been given that on account of not doing the work of benching by the respondent department, that the petitioner could not commence his work in time and for this reason, the same was commenced after two months i.e. inMay, 1982. 11.The Power ofAttorney Holder Jethmal Jain, has stated in his cross- examination that' he admits the correctness of whatever is mentioned in the measurement book of the respondent department and he is only raising dispute with respect to final bill. But this witness has also admitted that he cannot tell as to what is the error in the final bill. Though the petitioner has claimed that he had incurred a loss of Rs. 4 lac under infructuous overheads, but he could not adduce any evidence to substantiate it. Although this witness Jethmal Jain, has stated that in the income tax return filed by the petitioner, a loss of Rs. 4 lac has been shown, but has further admitted that copy of the income tax return has not been filed before the Tribunal. This witness Jethmal Jain has further admitted that he has received the payment of all the running account bills. He has further admitted that the forest department had not given him any order in writing restraining him from working in forest area. This witness has nowhere stated that at any point of time, he was even orally asked to discontinue the work or in writing restrained from continuing with the work in the forest area by the officers of the forest department. 12.It is a settled principle of law that admission is the best piece of evidence against a person. Thus, in view of admission made by the Power of Attorney Holder Jethmal Jain of the petitioner in his cross- examination and the statement made by B.D. Joshi, S.E., in his affidavit, which remained unchallenged in the cross-examination, it stands amply proved that the contractual obligations were discharged by the respondent department in time and it is only on account of delay on the part of the petitioner that the work could not be completed, despite giving extension on two occasions, till 14.12.1983. ^^.y •^^ •^\v "'^'''•.'.•"') (@ 13. From perusal of the impugned award, it is found that every aspect of the matter has been elaborately dealt with and the Tribunal has not committed any error of law or jurisdiction in dismissing the reference petition of the petitioner. The impugned award is strictly in accordance with law and calls for no interference by this Court. 14.1n the result, the revision petition being without any substance deserves to be dismissed and is, accordingly, dismissed. 15. No order as to costs. Sd/- i.M.Quddusi Judge Sd/- G. Mmhajuddin Judge ^NN^ y