Case: Manocha Construction Company Vs. State Of M.P.

we were instructed to construct the temporary bunch 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. 14/- 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." 7. 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 (1) 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 appellants letter dated 6.4.1986 of 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 under taken 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. 8. 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 are 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 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 thee 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. 9. 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 hourly wise 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." 10. 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 as completed in November/December, 1985, there was nothing wrong in fixing the amount based on the rate prevalent at that time.11. 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 therate 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.12. 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. 13.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]10. 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 as completed in November/December, 1985, there was nothing wrong in fixing the amount based on the rate prevalent at that time.11. 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 therate 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.12. 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.