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Madhya Pradesh High Court · body

2004 DIGILAW 393 (MP)

Sadhu Singh v. State of M. P.

2004-04-23

ARUN MISHRA, N.S.AZAD

body2004
Judgment ( 1. ) UNDER Section 19 of the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 the petitioner has challenged the award dated 10th May, 1996 passed by M. P. Arbitration Tribunal in Reference Case No. 177/91, wherein the petitioners entire claim for an amount of Rs. 5 lacs pertaining to balance payment of earthwork, escalation of labour wages and POL, security deposit and earnest money is disallowed and rejected with an exception of refund of Rs. 198. 44 as balance of earnest money. ( 2. ) IT is not disputed that under an Agreement No. 47/dl 78-79 with Water Resources Department of Govt. of India, earthwork (balance work) in Chainage Nos. 723 to 724, 725 to 727, 761 to 762. 50 and 766 to 777 of Tilwara Left Bank Canal of Upper Wainganga Project was given to petitioner Sadhu Singh, the amount of item rate contract was Rs. 3,33,059 the work order was issued on 20. 04. 1979 with period of contract as 6 months excluding rainy season and that the stipulated date of completion was 19th January, 1980, whereas the work was completed in March 1982. ( 3. ) ACCORDING to the petitioner, some piece workers executed some work prior to the agreement executed in favour of petitioner and the existing levels on work site at commencement of the work by the petitioner were not in conformity with levels shown in the departmental books because the levels of the work done by other agencies were shown at lower level, resulting in excess payment to piece workers. Though the actual readings of the levels were intimated by the petitioner to the department, yet the value of the work done by the petitioner was not paid to him. His claims for payment of balance work, loss of damages suffered, refund of security deposit and earnest money submitted to Superintendent Engineer, were rejected by S. E. on 18. 04. 1985. On objection being raised by the petitioner, the S. E. deputed Shri A. K. Das and Shri S. K. Shukla, Asstt. Engineers to take measurements of total work done afresh so that the work done by piece workers and the petitioner could be separately assessed. In the absence of graph M. B. , Shri Das and Shri Shukla, Asstt. Engineers, recorded ground levels as per actuals. Engineers to take measurements of total work done afresh so that the work done by piece workers and the petitioner could be separately assessed. In the absence of graph M. B. , Shri Das and Shri Shukla, Asstt. Engineers, recorded ground levels as per actuals. It is contended on behalf of the petitioner that if starting levels as per graph M. B. were considered, the total quantity of earthwork done by petitioner would have come to 47,692 cu. mts. and he should have been paid for balance quantity after deducting the payment made for 24,719. 791 cu. mts. which was the earthwork executed by the piece workers. On being referred by Executive Engineer for final decision by letter dated 03. 11. 1989, the Suptd. Engineer examined the facts and informed the petitioner that no payment was outstanding which persuaded him to make a reference to the tribunal. ( 4. ) THE respondents resisted the petitioners claim by contending that all the measurements and 16 R. A. bills (except final 17th bill) were accepted by the petitioner without protest. It is also contended on behalf of the respondents that delay in execution of work was attributable to petitioner himself and hence no payment for balance work on escalation was payable to him. ( 5. ) IN addition to documentary evidence which is marked as Exs. P/1 to P/23, the petitioner examined himself and Shri Kanhare, Consultant in his evidence whereas Shri Sharad Verma, E. E. , Shri I. Khan, A. E. , Shri A. K. Das, A. E. and Shri A. K. Gautam, S. E. were examined as witnesses on behalf of the respondents, who proved documents marked as Exs. D/1 to D/7. ( 6. ) IN reference initially the petitioner claimed Rs. 2,32,000 towards balance work, Rs. 2,75,000 towards escalation of wages and POL, Rs. 14,000 towards security deposit and Rs. 2,890 towards earnest money, making a total of Rs. 5,23,890. Subsequently, this total was reduced to Rs. 2,50,000 without apportioning the reduction in different heads. The claim for ante lite interest at the rate of 12% per annum on the amount of claims since March 1982 to May 1991, i. e. for a period of 9 years was also reduced to Rs. 2,50,000. ( 7. ) THE tribunal examined the petitioners claim in following three heads: (a) Payment towards balance work. (b) Escalation of wages for labour and POL. 2,50,000. ( 7. ) THE tribunal examined the petitioners claim in following three heads: (a) Payment towards balance work. (b) Escalation of wages for labour and POL. (c) Refund of security deposit and earnest money. ( 8. ) WE proceed to examine the tribunals opinion in respect of aforesaid heads one by one. ( 9. ) IN connection with balance work, it is noted and assessed by the tribunal as per petitioners evidence after receiving as many as 8 running bills on 22. 07. 1979. Vide Exs. P/4 and P/19, a letter with enclosures, the issue about starting levels were submitted by the petitioner to Executive Engineer on the statement of levels recorded by him but the respondents denied the receipt of such a letter and submitted that the petitioner never raised any objection regarding starting levels up to 8th R. A. bill till 15. 07. 1980 and also up to 16th R. A. bill because all the measurements recorded in M. B. and graph M. B. were accepted by him so also the payments. It is also the case of the respondents that on 11. 01. 1984 only by letter Ex. P/21, the petitioner intimated the Executive Engineer about his total escalation work of 19,166. 24 cu. mts. by enclosing cross-sections at different chainages for showing the details of balance work. But according to the tribunal these cross-sections did not exactly match with the earlier levels, furnished by the petitioner himself on 22. 07. 1979. ( 10. ) THE petitioner submitted an application on 13. 10. 1984 to S. E. under Clause 4. 3. 29. 1 of the agreement enclosing the notice of E. E. dated 10. 08. 1984 for claim of Rs. 1,78,000 towards balance payment, Rs. 10,000 towards idle labours, Rs. 2,75,000 towards escalation of labour wages, Rs. 14,000 towards POL and Rs. 2,890 towards refund of security deposit and earnest money in addition to Rs. 20,000 extra for cutting in slope. He also claimed interest at the rate of 21% p. a. on the total claim of Rs. 4,99,890. As per minutes of the meeting held with petitioner on 27. 03. 1985 and 28. 04. 1985, the S. E. rejected the petitioners claim on 28. 04. 1985. ( 11. ) THEN, in respect of petitioners complaint made to Executive Engineer (Ex. P/10, dated 19. 11. 4,99,890. As per minutes of the meeting held with petitioner on 27. 03. 1985 and 28. 04. 1985, the S. E. rejected the petitioners claim on 28. 04. 1985. ( 11. ) THEN, in respect of petitioners complaint made to Executive Engineer (Ex. P/10, dated 19. 11. 1985) two Assistant Engineers Shri A. K. Das and Shri S. K. Shukla, were deputed to record fresh measurements of up to date work, to assess the work done by the petitioner and the piece workers. These Assistant Engineers recorded the measurements afresh in M. B. No. 485 (Art. A) at relevant chainages for taking direct levels (not connecting with levels in graph M. B. Art. I) which have been signed by the petitioner also. As per these two Asstt. Engineers the total excavation work was 35,608. 903 cu. mts. whereas the petitioner claimed to have done excavation work of 47,692 cu. mts. by adopting ground level in graph M. B. as starting level. ( 12. ) THEN the petitioner engaged a consultant Shri A. M. Kanhare to work out the total quantity of excavation work, on the basis of M. B. 68 (Art. K), 49158 (Art. H), graph M. B. (Art. I), original documents and M. B. No. 485 (Art. A) in which fresh measurements were recorded by Shri Das and Shri Shukla. Since Shri Kanhare had no idea about the work done by the piece workers and other agencies his statement for excavation work rested on different criteria. The learned tribunal considered the statements submitted by Shri Kanhare which were styled as Statements A and B. ( 13. ) THEREAFTER on 12. 01. 1994 both the parties who adopted different criteria for working out quantities of excavation work agreed before the tribunal that the quantities of earthwork executed by the petitioner would be worked out by taking graph M. B. as a base and the levels recorded by Shri Das and Shri Shukla, Asstt. Engineers at different chainages would be transposed in graph M. B. and thus the quantities of earthwork executed by petitioner would be worked out. Since both the parties could not arrive at a mutually acceptable statement, the petitioners consultant and the O. I. C. Shri Sharad Verma, appearing on behalf of the respondents were cross-examined in respect of the statements submitted on their behalf which were marked as Exs. C/1, C/2 and C/3. Since both the parties could not arrive at a mutually acceptable statement, the petitioners consultant and the O. I. C. Shri Sharad Verma, appearing on behalf of the respondents were cross-examined in respect of the statements submitted on their behalf which were marked as Exs. C/1, C/2 and C/3. As per revised Statement B, quantities of earthwork, executed by the petitioner on basis of graph M. B. No. 131 and as recorded in M. B. 485 by Shri Das and Shri Shukla, A. Es. the petitioner did excavation work of 19,202. 94 cu. mts. whereas on the basis of starting level and top ground level, the width of earthwork was shown to be 41,558. 012 cu. mts. in Annexure D. ( 14. ) AS per graph M. B. 131 (Art. I) and measurement recorded in M. B. No. 485 (Art. A) by Shri A. K. Das and Shri S. K. Shukla, A. Es. , Shri Sharad Verma, O. I. C. suggested few deductions and concluded that total earthwork done was 38,440. 126 cu. mts. inclusive of 24,719. 791 cu. mts. done by piece workers, therefore, the petitioner was found to have done earthwork of 10,005. 456 cu. mts. after the deductions suggested by Shri Verma in three heads, the details of which is noted in para 13 of the award. ( 15. ) THEN, after objective assessment of aforesaid facts and on the basis of various cogent reasons recorded by the learned tribunal in paras 14 and 15 of the award, it is found concluded by it that the petitioner had completed excavation of 472. 02 cu. mts. in soil, 486. 953 cu. mts. in soft rock and 8590. 27 cu. mts. in hard rock making a total of 9909. 243 cu. mts. (Art. G, Page 96) and thus the petitioner is not entitled for any other payment in respect of balance work. ( 16. ) SO far as claim pertaining to escalation for wages of labour and POL is concerned, the petitioner made a claim on the ground of delay in giving lay-out and controversy about starting levels. But it is noted by the tribunal that the petitioner had applied for extension of time on 11. 01. 1980 (vide Ex. D/6) for three months and on 07. 04. 1980 (vide Ex. D/7) for a further period of 6 months on the ground of shortage of diesel. But it is noted by the tribunal that the petitioner had applied for extension of time on 11. 01. 1980 (vide Ex. D/6) for three months and on 07. 04. 1980 (vide Ex. D/7) for a further period of 6 months on the ground of shortage of diesel. For the third time, the petitioner applied on 24. 04. 1989 (vide Ex. P/20) on the ground of delay in lay-out for Chainage Nos. 723 to 770. Since the complaint about non-giving of timely lay-out was not made at proper time, the learned tribunal has rightly discarded this claim on the ground of doubt in its truthfulness. Then, the diesel was required to be procured by the petitioner himself and hence, the delay on account of non-availability of diesel is rightly attributed to the petitioner. Again the controversy regarding starting levels was never stated on behalf of the petitioner in any of the applications submitted seeking extension of time for execution of work and this conclusion recorded by the tribunal is found to be just and proper that this ground could not have hindered the progress of the work. Lastly, in respect of escalation of wages paid, the petitioner did not submit any document nor give any other evidence in support of his claim in this regard, therefore, in the absence of any provision in the agreement providing for escalation and for delay in execution which is not attributable to the respondents, the learned tribunal is found to have rightly disallowed the petitioners claim based on escalation of wages of labour and POL. ( 17. ) IN respect of refund of Rs. 2,890 as earnest money and Rs. 14,000 as security deposit, it is noted by the learned tribunal that after payment of 16th running bill on 04. 03. 1982 (as per Art. G, Page 70) which was accepted by the petitioner in 17th final bill an amount of Rs. 18,865. 56 was found to be recoverable from the petitioner (Art. G, Page 97), therefore, an amount of Rs. 16,174 of security deposit was adjusted against this outstanding amount. Then, an amount of Rs. 2,691. 56 was found recoverable against the petitioner as Misc. P. W. advance, therefore, after deducting this amount from earnest money of Rs. 2,890, the balance amount of Rs. 198. 44 was ordered to be paid to the petitioner, by the learned tribunal. ( 18. 16,174 of security deposit was adjusted against this outstanding amount. Then, an amount of Rs. 2,691. 56 was found recoverable against the petitioner as Misc. P. W. advance, therefore, after deducting this amount from earnest money of Rs. 2,890, the balance amount of Rs. 198. 44 was ordered to be paid to the petitioner, by the learned tribunal. ( 18. ) THUS, we find that while passing the impugned award neither the learned tribunal has illegally or with material irregularity, exercised its jurisdiction or failed to have exercised its jurisdiction so vested nor has exercised jurisdiction not vested in it by law and hence this revision does not merit which is accordingly disallowed and rejected.