Case: UNION OF INDIA &amp; ORS Vs. M/S PUNA HINDA

2. The learned Single Bench of the High Court allowed the writ petition filed by the respondent – M/s. Puna Hinda(Hereinafter referred to as the writ petitioner) who had sought quashing of letters dated 27.8.2015 and 21.10.2015 and also a direction to pay Rs. 31,57,16,134/- with interest at the rate of 18% p.a.3. The learned Single Judge held that payment in terms of Final Joint Survey/Measurement Report dated 24.10.2013 be taken into consideration for making revised Detailed Project Report (DPR) and thus passed necessary orders for payment of the amount due to the writ petitioner within four months of the receipt of copy of the order. In an appeal filed by the appellants, the Division Bench of the High Court held that resurvey for measurement and DPR would not be just and fair at this stage since five monsoons had passed. Therefore, the only option left to the appellants was to approve the DPR and pay the pending bills on the basis of Final Joint Survey/Measurement Report dated 24.10.2013.4. Brief facts leading to the present appeal is that a Notice Inviting Tender (NIT) was issued on 22.10.2008 for construction and improvement of road from 26.800 km to 47.850 km between Lumla and Tashigong under Special Accelerated Rural Development Programme (SARDP). The bid of the writ petitioner was accepted at Rs.31,87,58,950/-. The work order was issued on 15.7.2009. The said work order was amended by the parties on 15.3.2012 leading to enhanced work cost at Rs. 35,03,15,695.23. The work order had provided details of the work to be carried out and the estimated amount payable for each work with rate of each work. The work was divided into three parts, such as, Formation work, which included jungle clearance etc.; Permanent work which included excavation in trenches, cement concrete; and Surface work which included preparation of subgrade in soil mix boulder, laying, spreading and compacting graded stone aggregate. The measurement process for payment was specified in the General Conditions of Contract, which read as under:2 .8 .1 Excavation for roadway shall be measured by taking cross Section at suitable intervals in the original position before the work starts and after its completion and computing the volumes in cum by the method of average and areas for each class of material encountered. Where it is not feasible to computes volumes by this method because of erratic location of isolated deposits, the volumes shall be computed by other accepted methods.2.8.2 At the option of the Engineer-In-Charge/QC Contract, the Contractor shall leave depth indicators during excavations of such shape and size and in such positions as directed so as to indicates the originals ground level as accurately as possible. The Contractor shall see that there remain intact till the final measurements are taken.5. The contractor completed the formation work by 20.9.2012, the communication of which was sent by the writ petitioner on 17.10.2012. The joint survey of the works was carried out by the Board of Officers on 23.1.2013. The Board of officers made the following recommendations: -RECOMMENDATION OF THE BOARD20. The details of items of formation works provisioned (as per DPR), executed departmentally and balance between Km 26.800 and Km 31.00 are as under:xx xx xx21. The details of items of formation works provisioned in DPR and as arrived at after detailed Joint Survey from Km 31.000 to Km 47.850 are as under:						Location			In SMB (cum)			In SR (cum)			In HR (cum)			Embankment filing (cum)			Jungle Clearance (10 Sq m)							Km 31.000-Km 47.850			 			 			 			 			 							(a) Qty of Fmn works provisioned as per dpr			633835.33			15298.87			81438.22			0.00			25275.00							(b) Qty of Fmn works as per joint survey			356166.00			182073.00			337447.00			0.00			23123.00			The quantities as arrived at after joint survey are theoretical only and after completion of formation works Total station survey shall be carried out as per Clause 18 of Special Conditions of Contract to ascertain the actual quantity executed. Hence these quantities be treated as accurate, based on theoretical calculations.The classification of soils as shown in joint survey are based on visual appearance of soil strata. The actual classification of excavation shall be decided during execution by Engg in Charge and OC Contract as per clause 2.2.2 of Particular specification of CA at page no. 87 duly supported with photographs.The quantities of formation works as arrived at after joint survey between Km 26.800 and Km 47.850 as per details given at Appendix A are recommended for execution of ground and will form the basis of RAR payments to be made as per Contract Provision/Stipulation during execution of works under CA No. CE/VTK/03/2009-10. The final quantity shall be arrived only after completions of formation works by carrying out Total station survey. Hence, amendment in quantities of formation works is recommended only after final joint survey on completion of work.22. Unlined drain of any shape cut to the required gradient with average sectional area 0.50 Sqm in soft rock – 2299.80 Mtrs and in Hard rock-5146.00 Mtrs as arrived at after Joint Survey are recommended for construction on ground between Km 26.800 to Km 47.850 under CA No. CE/VTK/03/2009-10.23. Abstract of quantity of item of works for construction of permanent structures which are executed and balance between Km 26.800 and Km 31.000 and structures provisioned between Km 31.000 and Km 47.850 has been worked out and shown at Appendix B.24. Permanent works to be executed under CA No. CE/VTK/03/2009-10 are as under:(a) R/Wall: R/Walls balance between Km 26.800 and Km 31.000 and provisioned between Km 31.000 and Km 40.000 at locations mentioned in Annexure-I to Appendix B are recommended for execution on ground under CA No. CE/VTK/03/2009-10.(b) RCC Culverts: RCC Culverts balance between Km 26.800 and Km 31.000 including two incomplete RCC culverts at locations Km 28.300 and Km 29.000 and those provisioned between Km 31.000 and Km 47.850 at locations mentioned in Annexure-II to Appendix B are recommended for execution on ground under CA No. CE/VTK/03/2009-10.(c) T/Walls Below RCC Culverts: T/Walls below RCC Culverts balance between Km 26.800 and Km 31.000 and those provisioned between Km 31.000 and Km 47.850 at locations mentioned in Annexure-III to Appendix B are recommended for execution on ground under CA No. CE/VTK/03/2009-10.(d) T/Walls below R/Walls: T/Walls below R/Walls provisioned between Km 26.800 to Km 31.000 and Km 31.000 to Km 47.850 at locations mentioned in Annexure IV to Appendix B are recommended for execution on ground under CA No. CE/VTK/03/2009- 10.(e) Breast Walls: Breast Walls provisioned between Km 26.800 to Km 31.000 and between Km 31.000 to Km 47.850 at locations mentioned in Annexure V to Appendix B are recommended for execution on ground under CA No. CE/VTK/03/2009-10.(f) Lined drain: Lined drain for 13271.00 Mtr length of trapezoidal shape in plum concrete between Km 26.800 and Km 47.850 at locations as arrived at after Joint Survey and mentioned at Annexure-VI to Appendix B are recommended for execution on ground under CA No. CE/VTK/03/2009-10.(g) Road Furniture: Road furniture provisioned between Km 26.800 and Km 47.850 as per Annexure-VII to Appendix B are recommended for providing/fixing on ground under CA No. CE/VTK/03/2009-10.25. Working drawings of all permanent structures (different sizes/types) are enclosed with this Board of Officers.26. Construction of permanent structures at designated locations or otherwise will only be executed after obtaining prior approval of Engineer-in-Charge/OC Contract as per ground requirement.27. The quantity of items of Permanent works as arrived at after Joint Survey between Km 26.800 and Km 47.850 as per details given at Table-2 of Appendix B are recommended for execution on ground and will form the basis of RAR payments to be made as per Contract Provision/Stipulation during execution of works under CA No. CE/VTK/03/2009-10. Amendment in quantities of permanent works is recommended only during final stage of completion of permanent works.28. No surfacing works has been executed departmentally between Km 26.800 and Km 47.850. Quantities of various items of surfacing works as arrived at after Joint Survey as per details given at Appendix D are recommended for execution on ground under CA No. CE/VTK/03/2009-10.SUMMARY OF PAVEMENT WORKS AS PER JOINT SVY									Sl.            			No.            									Items                   of            			Surfacing            									A/U            									Total            			Quantity            									Surfacing Eqvt            			DGBR CL-9            													1            									Preparation of            			subgrade in SMB            									Sqm            									82943.75            									0.00            													2            									Preparation of            			subgrade in SR            									Sqm            									14373.75            									0.00            													3            									Preparation of            			subgrade in HR            									Sqm            									21227.21            									0.00            													4            									Sand     Blanketting            			25mm            									Sqm            									21227.21            									0.00            													5            									GSB 150mm thick            									Sqm            									97317.50            									5.90            													6            									GSB 100mm thick            									Sqm            									64229.50            									2.60            													7            									WMM 75mm thick            									Sqm            									256370.31            									15.54            													8            									Prime     coat     over            			WMM surface            									Sqm            									85456.71            									0.00            													9            									BM 50mm thick            									Sqm            									85456.71            									10.36            													10            									SDBC 25mm thick            									Sqm            									85456.71            									5.18            													             									Total Surfacing            									Km Eqvt Cl-9            									39.58            						29. However, if the soil classification varies from the enclosed strata as shown in (Annexure-I to Appx C), layer combination shall be revised accordingly and be executed after prior approval of OC Contract duly supported with photographs of Soil strata.subgrade in SMBsubgrade in SRsubgrade in HR30. Amendment in quantities of surfacing works are recommended only during final stage of completion of surfacing works.xx xx xxCE/VTK/03/2009-10 ON ROAD LUMLA-TASHIGONG BETWEEN KM 26.800 TO KM 47.850									Sl.            			No.            									Location            									Earth Work involved in CUM            									Earth work in Emban-            			kment            									Jungle Clearance            									Unlined Drain in SR (M)            									Unlined Drain                in HR(M)            													From            									To            									Cutting            													SMB            									SR            									HR            									             									             													1            									26.800            									31.0            			00            									1872            			7.01            									1735.04            									7631. 42            									0.00            									0            									125.00            									217.80            													2            									31.000            									47.8            			50            									35616            			6.00            									182073.            			00            									337447.0            			0            									0.00            									23123.0            									2174.8            			0            									4928            															Presiding Officer            									             									Lt Col Dhiraj Minotra, OC, 117 RCC            			(GREF) OC Contract            													Member            									1            									Sd/- (Comments KS, AE(Civil) Eng-in- Charge            			117 RCC (GREF)            													             									             									             													             									2            									Shri                    A  Holder  Authorized  rep  of  M/s            			Puna Hinda

Reasoning:
We do not find any merit in the said argument raised. The letter itself stated that it has been approved by the Competent Authority. It appears that the decision was taken by the competent authority but the communication was issued by an officer on behalf of the competent authority. The basis of Joint Survey Report itself has been found to be fallacious. This Report appears to be a friendly act of some of the officers of the appellant, to grant benefit to the writ petitioner, though even not claimed by the petitioner at an early stage. The claim of Rs.23,68,11,589.02 in the letter dated 17.6.2014 has swelled into an amount of Rs. 35,51,80,651 as per the notice under Section 80 of the Code. Therefore, for the purposes of these proceedings, the communication dated 29.10.2013 cannot be permitted to be disputed by the writ petitioner.22. The Board of Officers convened its meeting but the same was cancelled vide communication dated 8.6.2015. Thus, an attempt by the appellants to resolve the disputes regarding the measurements by constituting Board of Officers was scuttled by the writ petitioner for the reasons best known to him.23. The High Court has based its order on the ground that after five monsoons, the final measurements could not be ascertained. If the final measurements could not be done at the spot, the contemporary evidence and the measurement books prepared from time to time could be the basis for determining the liability of the appellants. The Joint Survey Report is not an admitted measurement, though some officers might have signed it. The Report prepared after the completion of work wherein no such work done is reflected in the measurement book prepared during execution of work is an attempt to inflate the claim raised by the writ petitioner. The entire amount claimed by the writ petitioner is disputed.24. Therefore, the dispute could not be raised by way of a writ petition on the disputed questions of fact. Though, the jurisdiction of the High Court is wide but in respect of pure contractual matters in the field of private law, having no statutory flavour, are better adjudicated upon by the forum agreed to by the parties. The dispute as to whether the amount is payable or not and/or how much amount is payable are disputed questions of facts. There is no admission on the part of the appellants to infer that the amount stands crystallized. Therefore, in the absence of any acceptance of Joint Survey Report by the competent authority, no right would accrue to the writ petitioner only because measurements cannot be undertaken after passage of time. Maybe, the resurvey cannot take place but the measurement books of the work executed from time to time would form a reasonable basis for assessing the amount due and payable to the writ petitioner, but such process could be undertaken only by the agreed forum i.e., arbitration and not by the Writ Court as it does not have the expertise in respect of measurements or construction of roads.25. A perusal of the matter shows that collusion of some of the officers of the appellants with the contractor cannot be ruled out. Such collusion seems to be the basis of the writ petition filed before the High Court.