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2003 DIGILAW 289 (JK)

Ab. Majid Mir v. Executive Engineer

2003-09-18

Y.P.NARGOTRA

body2003
The petitioner is a contractor. He was allotted a contract for the execution of works by the respondent for laying of deck slabs over two nallahs namely Bhella nallah and Shibnote nallah bridges in Km 63 and Km 66 NH1B road. As per the agreement the petitioner was to be paid 160% above the advertised rates in the NIT No. 8 of April 1984. The petitioner claimed that for the additions and alteration in the work with reference to the original allotment/agreement the respondent-Department was required to make payment as per the sanctioned schedule of 1981 plus agreed tender appreciation of 160% above. The estimated cost of the work as per the tender notice was of the order of Rs.60000/-. The petitioner claimed for involvement of slab height of more than ten meters from the nallah bed-base, utilization of crushed aggregate from Batote crusher to site of work and as per the claim he had not been paid for the actual work done for various items. The petitioner claimed payment of Rs.18,26,543.94P from the respondents. As the claim of the petitioner was not accepted by the respondents the petitioner moved a petition seeking appointment of the arbitrator in this Court and this court in AA No. 305/89 by order dated 23.1.1991 appointed the Chief Engineer PWD(R&B) Jammu as Arbitrator for adjudication of the disputes occurring between the parties and for passing the award within the statutory period of four months. Pursuant to the directions of this court the Arbitrator entered the reference and published his award on 31.5.2000 by allowing some items as stated in the award. The award was filed before this court and this court vide order-dated 31.7.2000 directed for issuance of notice to both the parties. The petitioner contractor was served on 6.11.2000. On behalf of the respondents objections were filed U/S 30/33 Arb.Act for challenging the award. The petitioner did not file any objections to the award. 2. In the objections to the award the State pleaded that the work pertaining to construction of two bridges, Batote Kishtwar National Highway was allotted to the petitioner in the year 1986-77 and thereafter the petitioner commenced the work and received payments from time to time and the final cash voucher No. 88-89 of February 1987 under which the final payment of the work done] by the petitioner on both the bridges was accepted in February 19187. The petitioner thereby accepted the measurements contained in the measurement book and the matter thus came to be concluded. However the Arbitrator, according to the respondents allowed the claims of the petitioner without any basis and contrary to the spirit of the agreement as also the report of the Commissioner and factual position. As per the stand taken by the respondents the Arbitrator misconducted himself in the proceedings as he has passed the award contrary to the material placed on record and without appreciating the stand taken by the respondents. In the objections entitlement of the petitioner to his various claims has also been factually challenged. 3. From the pleadings of the parties following issues were framed for adjudication on 26.12.2001 and the State was directed to lead evidence by way of affidavits/record:- 1. Has the Arbitrator misconducted himself or theproceedings ? opp 2. Is the award otherwise invalid/OPP 3 Relief. The State-objector filed the affidavit of Executive Engineer PWD(R&B) Doda whereas in rebuttal the contractor, Abdul Majid Mir filed his own affidavit. 4. I have heard the learned counsel for the parties and perused the record of the case. ISSUE NOS 1 & 2. Mr. S.C. Gupta learned counsel appearing on behalf of the State has raised two contentions to submit that the Arbitrator has misconducted the proceedings. Firstly he argued that the contractor accepted the measurements recorded in the measurement book and also accepted the final payment of the bills and thereby the contract became concluded. He was therefore estopped from raising any further claim. Mr. Gupta submits that the arbitrator should have taken note of this fact before allowing the claims of the petitioner-contractor. He has secondly argued that the evidence which was led by the parties before the Arbitrator has been properly appreciated and the findings returned on the claims of the petitioner by the Arbitrator are based upon misappreciation of the facts in issue. 5. On the other hand Mr. M.P. Gupta learned counsel for the contractor-petitioner has argued that the claims of the petitioner was based upon undisputed fact that height of the bridges was raised during the currency of the execution of the work by the orders of the respondents and for which the petitioner had to execute additional work for which he was entitled to be paid. M.P. Gupta learned counsel for the contractor-petitioner has argued that the claims of the petitioner was based upon undisputed fact that height of the bridges was raised during the currency of the execution of the work by the orders of the respondents and for which the petitioner had to execute additional work for which he was entitled to be paid. During the course of the proceedings before the Arbitrator a commissioner was appointed with the consent of the parties for spot inspection also and the learned Arbitrator after properly appreciating the evidence of the parties and the report of the commissioner allowed the claims of the petitioner by making the award. He submitted that while deciding the question as to whether the award should be made rule of the court, this court is not empowered to act as a court of appeal so as to determine the correctness of the conclusions arrived at by the Arbitrator. In support of his contention he has relied upon a case reported in AIR 1989 SC 1263 wherein their lordships have observed that the Court cannot sit in appeal over the views of the Arbitrator by examining and re-assessing the material. He also relies upon AIR 1989 SC 890 wherein it has been observed by their lordships as follows:- " In the instant case the High Court seems to have fallen into an error of deciding the question on interpretation of the contract. In the aforesaid view of the matter we are of the opinion that the High Court was in error. It may be stated that if on a view taken of a contract, the decision of the arbitrator on certain amounts awarded is a possible view though perhaps not the only correct view, the award cannot be examined by the court in the manner done by the High court in the instant case. In the light of the above, the High Court in our opinion, had no jurisdiction to examine the different items awarded clause by clause by the arbitrator and to hold that under the contract these were not sustainable in the facts found by the arbitrator." 6. In the light of the above, the High Court in our opinion, had no jurisdiction to examine the different items awarded clause by clause by the arbitrator and to hold that under the contract these were not sustainable in the facts found by the arbitrator." 6. It is thus a settled principle of law that while exercising jurisdiction U/S 30 Arb.Act this court cannot act as a court of appeal and re-assess the evidence as to find out whether the arbitrator has committed any error or to decide a question of adequacy of evidence. This court cannot sit on the conclusions of the arbitrator by re-examining and re-appreciating the evidence considered by the arbitrator. In 1996(1) SCC 18 the Honble court has held:- "The jurisdiction of the court to interfere with an award of an arbitrator is undoubtedly a limited one. The adjudication of the arbitrator is generally binding between the parties and it is not open to the court to attempt to probe the mental process by which the arbitrator has reached his conclusion. Award of an arbitrator can be set aside by a court only on the grounds indicated in section 30 of the Arbitration Act. It is not open to the court to reassess the evidence to find whether the arbitrator has committed any error or to decide the question of adequacy of evidence and the court cannot sit on the conclusion of the arbitrator by re-examining and reappreciating the evidence considered by the arbitrator. At the same time the arbitrator is a creature of the agreement itself and therefore is duty-bound to enforce the terms of the agreement and cannot adjudicate a matter beyond the agreement itself. At the same time the arbitrator is a creature of the agreement itself and therefore is duty-bound to enforce the terms of the agreement and cannot adjudicate a matter beyond the agreement itself. If the arbitrator adjudicates a claim of a contractor with reference to the clauses of the agreement itself whereby the agreement gets engrafted into the award, it will be open to the court to examine those clauses of the agreement and find out the correctness of the conclusion of the arbitrator with reference to those clauses." It has further been held:- "In the course of execution of contract drawings and designs were changed as a result of which there was abnormal increase of the quantity of work and for such an increase of quantity of work when the contractor claimed a higher rate and gave the analysis before the arbitrator, which was not disputed by the State and the arbitrator accepted the rate, the court will not be justified in interfering with the same The arbitrator having considered all the relevant materials and there being no legal proposition which has formed the basis for acceptance of a higher rate and on the other hand the same being arrived at on account of the abnormal increase in the quantity of work which was on account of change of drawings and designs, the court will not be justified in interfering with the same." 7. In the present case the petitioner raised claims on account of change of the original drawings and designs of the contract as a result of which the contractor had to execute additional work. The execution of the additional work which he had to do on account of change of height of the bridges from nallah beds has not been disputed. In the affidavit submitted by the Executive Engineer, it has been averred in paras 3 to 6 as follows:- "3. That the petitioner/claimant received full and final payment for the work in question without any protest. This aspect was completely ignored by the arbitrator under law where the claimant accept the full and final payment without any protest, dispute thus, not become arbitrable. The arbitrator thus mis-conducted while ignoring this position. 4. That the arbitrator completely ignored the agreement submitted before him and the plea that petitioner has obtained full and final payment. The non consideration of this important plea has rendered the award illegally. The arbitrator thus mis-conducted while ignoring this position. 4. That the arbitrator completely ignored the agreement submitted before him and the plea that petitioner has obtained full and final payment. The non consideration of this important plea has rendered the award illegally. The award thus, suffers from any illegality which is apparent on the face of record. 5. That the award of the arbitrator is beyond the terms of agreement and in fact is not covered under arbitration clause. The claim even though same was beyond scope of agreement. The claim was paid for all works including by him and thus. nothing was required to him. The arbitrator has intentionally over-looked the record in favour of claimant. The award thus, suffers from the vice of personal misconduct of the arbitrator. On that score alone same deserves to be set aside. 6. That arbitrator has ignored the report of the commissioner, while awarding claim in respect of item No. 2-D. Claimant was not entitled to be paid any amount as per the agreement and as per technical report/comments of the commissioner appointed by the arbitrator. It is submitted that the laying was deck slab, is included in the agreement itself as a whole items the award of account of use of wooden sleepers as contended by the claimant for his own convenience was beyond the agreement, the award thus, suffers from patent illegality and deserves to be set aside. 8. From the affidavit of Executive Engineer the stand of the State appears to be that the contractor had accepted full and final payment in respect of the work in question, without any protest therefore the payment made to the contractor included payments of all the works executed by him. It was also submitted before the arbitrator by the State respondents that height of the slab was as per the estimate and no additional height was involved in either of the bridges and as such nothing was further due to the petitioner other than what ha been paid to him by the department. It was also submitted before the arbitrator by the State respondents that height of the slab was as per the estimate and no additional height was involved in either of the bridges and as such nothing was further due to the petitioner other than what ha been paid to him by the department. In the award the learned arbitrator has observed that from the record available on the case file it transpires that since the Government had taken decision for abolition/winding up of National Highway 1B Kheleni, the relevant record could not be made available to his predecessor Chief Engineer so he appointed Sh.J.S.Bali the then Superintending Engineer Doda as commissioner to make spot assessment with respect to the height etc. of the said bridges, who was replaced by S.Balwant Singh, Executive Engineer PWD Division Kishtwar, who submitted his report on 7.10.1992 and in the said report it stood mentioned that actual average height of centering and shuttering involved in laying deck slab in km 63 & 66 NI1B from bed of nallah measures 10.20 mtrs. And 9,.50 mtrs. Likewise the average height from nallah bed, as mentioned in the drawings in the work register, duly test checked by the then Xen.concerned calculated to 11.00 mtrs. and 10-.80 mtrs respectively for the bridges in km 63 Bella nallah and km 66 Shibnote nallah. The arbitrator further noticed that report of the commissioner further mentioned that the maximum height of the centering and shuttering as provided in the sanctioned schedule rate of 1981 is up to 7 mtrs only and for rest of the height the schedule is silent. In the report of the commissioner, as observed by the arbitrator, the commissioner had made queries from some locals who confirmed centering and shuttering had been done by the contractor from nallah beds. 9. On the basis of the report of the Commissioner, the arbitrator came to the conclusion that the petitioner had executed the additional work and therefore was entitled to be paid for the same. In this view of the matter it transpires that the learned arbitrator has based his finding on the report of the commissioner also and this court cannot sit in appeal over the conclusion drawn there from by the arbitrator as per settled law. Therefore the objection of the respondent-State that the arbitrator had passed the award without properly appreciating the evidence cannot be entertained. 10. Therefore the objection of the respondent-State that the arbitrator had passed the award without properly appreciating the evidence cannot be entertained. 10. The objection of the State-respondent that the petitioner had accepted full and final payment of the claim can also not be entertained at this stage because same had not been specifically taken before the arbitrator. Therefore the respondents have not been able to bring anything on record to show that the arbitrator had misconducted himself or the proceedings. Learned counsel for the State has not been able to show as to how the award given by the arbitrator was invalid. 11. In this view of the matter, both the issues are decided against the State-respondent and the award made by the arbitrator on 31.5.2000 is made rule of the court. Let a decree be drawn in accordance with the terms of the award. The petitioner shall, however, also be entitled to interest @ 6% P.A. on the principal amount from the date of decree till realization of the decretal amount. Parties shall bear their own costs.