Judgment ( 1. ) THE revision has been preferred by the Contractor-M/s mahalingashetty and Co. Ltd. aggrieved by Award dated 31st july,1989 passed by MP Arbitration Tribunal in Reference case No. 25/86. ( 2. ) THE Contractor entered into contract with the State of M. P. for doing the work of Canal Excavation and for providing cement Concrete Lining for Bansagar Multipurpose Project, common Water Carrier, RD. 4. 00 to 5. 50 km. (Group No. 15)on 25. 6. 84. The estimated cost of the works-contract was rs. 71. 82 lakhs at UCSR of 1977 and the tender cost was rs. 1,40,07,188. The work order was issued on 9. 8. 84, the stipulated period of completion of work was 22 months,ending on 8. 12. 86. Petitioner continued to work up to 30th June,87, thereafter the work was stopped , as per the measurement recorded in book the excavation work was done. Another contract had also been granted to petitioner for similar work in the project of adjoining reaches of RD. 3 km. to 4 km. (Group No. 14 ). The claims arising out of that contract have been preferred by the petitioners in Reference petition No. 24/86 which was consolidated with Reference case No. 25/86 only for the purpose of recording of evidence. The petitioner restricted the claim before the tribunal only to the work already done till June,1987, three claims were pressed before the Tribunal, in the instant revision only one claim has been pressed with respect to rs. 1,14,53,192 by way of difference payable for "extra item". The first claim has correlation with item no. 1 of "schedule of Quantities of the contract agreement which pertains to (i) payment of difference on the basis of new rate for excavation excluding dewatering and silt clearance (ii)extra-charges for dewatering as an "extra item" ; and (iii)extra-charges for silt clearance as an "extra item in the matter of excavation. Petitioner submitted that rate was quoted against item no. 1 of "schedule of Quantities on the basis of (a) description of item in the Schedule of Quantities, (b) drawings showing trial pits and bore holes and (c)specifications annexed with the contract-agreement. Petitioner submitted that rate was quoted against item no. 1 of "schedule of Quantities on the basis of (a) description of item in the Schedule of Quantities, (b) drawings showing trial pits and bore holes and (c)specifications annexed with the contract-agreement. As per the aforesaid data supplied before inviting tenders it was understood by the parties that excavation was to be done in all type of soils "without the presence of moisture or water" and "no surface water or sub-soil water would be met with, upto the depth of canal bed level". But during actual execution of the excavation work such representation had turned out to be false, inasmuch as, surface water as well as sub-soil water in large quantity was found unexpectedly leading to incurring of considerable extra expenditure; (i) for dewatering by heavy duty pump and (ii) for carrying out wet excavation. Site condition was totally different from those as initially represented , item No. 1 of "schedule of quantities and the rates initially quoted therefore were no longer applicable, consequently, new rate of Rs. 39. 60 per cum. was based on rate analysis in terms of para 3. 4. 15. It was clearly an "extra item" requiring separate amount @ 7. 50 per Cum. Likewise, silt clearance which got equally increased due to profuse surface water and sub-soil water had also become an "extra item" payable at a separate rate of rs. 15 per Cum. Other land had not been acquired immediately and outer catch-drain having not been provided for draining out the inflow of excess surface water, accumulated on the portion of the site actually handed over. The Executive Engineer and Superintending Engineer had accepted the petitioner"s demand for treating the two items i. e. , "wet excavation" and "dewatering" as "extra items and they were confirmed at appropriate level by the authorities competent to do so. The then Superintending Engineer had actually sanctioned provisional rates for these two "extra items", although the same were not workable rates they were not accepted by the petitioner and hence the claim was made before the Tribunal at the aforesaid rates. Other facts are not being referred to as only the Claim No. (1) has been pressed in the revision. ( 3. Other facts are not being referred to as only the Claim No. (1) has been pressed in the revision. ( 3. ) RESPONDENTS/state in their reply disputed the claim in toto contending that no "extra item" of work was involved, dewatering ,wet excavation and silt clearance were already included in description of Item No. 1 of Schedule/bill of quantities in contract agreement as such there was no question of treating these items as "extra items", no false representation was made to the Contractor , Superintending engineer had exceeded his jurisdiction while fixing adhoc rates and he was not competent to carve out certain items out of item No. 1 of Schedule of Quantities as "extra items and to determine and fix any rates, provisional or otherwise, for the same. As such respondent no. 1 was not bound by such illegal, unauthorized acts of the then Superintending engineer. The illegal sanction had been ultimately cancelled, payment made was unauthorized and as per illegal sanction, it was in violation of terms and conditions of contract agreement. Recovery to the extent of Rs. 22,33,642 was claimed by way of counter claim. Departmental enquiry was initiated against the concerned officials , they were suspended. ( 4. ) THE Tribunal has, as per the impugned award, awarded a sum of Rs. 22,12,652 to respondent no. 1 by allowing the counter claim along with interest at the rate of 12% per annum from the date of award, that is , 31. 7. 89 in view of partial success of the parties in their claim and counter claim, they have been left to bear their own costs as incurred. ( 5. ) SHRI V. R. Rao, learned Sr. Counsel appearing with Shri s. K. Rao for petitioner has submitted that as per the agreement entered into between the parties, the superintending Engineer was the final authority to fix the rates, the quantity of dewatering and wet excavation that was done was not at all contemplated at the time when agreement was entered into, thus, it was rightly treated as "extra items by the Superintending Engineer. Once adhoc rates were fixed, it was not open to the State Government to cancel the decision and to act in contravention of the agreement. Once adhoc rates were fixed, it was not open to the State Government to cancel the decision and to act in contravention of the agreement. It was not permissible to the State of MP to sit over the decision of the final authority treating the aforesaid items as "extra items and the sanction of adhoc rates as final rates were not fixed, the claim made before the tribunal at the higher final rates was reasonable and ought to have been accepted by the Tribunal. He has further submitted that Tribunal has illegally allowed the counter claim as the final authority was not approached by the respondents in terms of the agreement, consequently, counter claim could not have been decreed. He has relied upon decision of Full Bench of this Court rendered in ravikant Bansal vs. M. P. Audyogik Kendra Vikas nigam (Gwalior) Ltd. 2006 (2) MPLJ 299 . Thus, the tribunal had no jurisdiction to entertain the counter claim and to order refund of amount. Thus, revision be allowed, fixation of final rates for the aforesaid work be ordered and the counter claim be dismissed. ( 6. ) SHRI M. L. Jaiswal, learned senior counsel appearing with shri K. K. Gautam for respondent no. 7 and Shri Sudesh verma, learned GA appearing for respondents 1 to 3 have supported the award. Shri Jaiswal has submitted that work was clearly covered under Item No. 1 of Schedule of quantities "g" in contract document Article-A, there was no jurisdiction with the Superintending Engineer to treat the aforesaid items of dewatering and wet excavation as "extra items", action was beyond jurisdiction and in violation of the agreement. Site was also inspected by the contractor during rains when water logging was already there, thus, the contractor knew it very well how much dewatering was required to be done at the site and about the wet excavation to be done. Thus, on facts also there was illegality committed by the Superintending Engineer in treating the aforesaid work as "extra items". He has also submitted that the submission that the final authority was not approached by the respondents has not been raised before the Tribunal or in reply to the counter claim filed by the Contractor, no notice was served by the respondents before laying counter claim was also not raised before the Tribunal. He has also submitted that the submission that the final authority was not approached by the respondents has not been raised before the Tribunal or in reply to the counter claim filed by the Contractor, no notice was served by the respondents before laying counter claim was also not raised before the Tribunal. As the aforesaid submissions are based on facts cannot be permitted to be raised, for the first time, in revision and there is no factual foundation to entertain the aforesaid submissions, consequently, no jurisdictional error has been committed by the Tribunal while passing the impugned award. No case for interference in revision is, thus, made out. ( 7. ) FIRST we take up the submission raised by Shri Rao, learned senior counsel appearing on behalf of petitioner that quantity of work of dewatering and wet excavation was not contemplated at the time when contract was executed, in this regard it is necessary to consider Item no. 1 of Schedule of quantities "g" in contract " Article A. Same is quoted below : " (i) Item No. 1 of Schedule of quantities in contract- document Article "a" reads thus : "item No. 1- Excavation in all type of soils, moorum and moorum mixed with boulders, disintegrated rock like hard shale, leterite, copra, etc. for C. W. C. canal in cutting and filling, cut off trench, drains dowalas, stripping, benching, including all leads and lifts, dewatering of rain water, ground and all sub soil seepage water, "where required, wet excavation if any, dressing, trimming to required section, including silt clearance shoring, shuttering, if any,ordinary jungle clearance, laying the earth in layers in canal banks to required thickness and in spills etc. complete as per profile, drawing and specifications as directed by Engineer-in-charge. " (emphasis supplied by us)A bare reading of Item No. 1 makes it clear that dewatering of rain water, ground and all sub-soil seepage water, wet excavation including silt clearance were in-built jobs of Item no. 1. The Tribunal has rightly relied upon the drawings attached to the agreement and has observed that the drawings attached with the agreement leads to the conclusion that large chunk in length would be full of water by surface flow in rainy season percolating the soil below and thereby making the soil wet. 1. The Tribunal has rightly relied upon the drawings attached to the agreement and has observed that the drawings attached with the agreement leads to the conclusion that large chunk in length would be full of water by surface flow in rainy season percolating the soil below and thereby making the soil wet. Existence of nistar tank, bunds and pits due to said departmental excavation and situation of high bunds in the private fields in the close vicinity and the excavation depth, as prescribed, would have cautioned any prudent tenderer that the work of the project was such which certainly involved wet excavation and dewatering in substantial quantities at least in Group No. 14, to a comparatively larger extent and in Group No. 15 to a negligible extent. Gundaiah (PW. 1) has conceded that he has inspected the spot during rainy season in pre tender period, stagnant water was visible in pits. Thus, the tribunal has rightly concluded that petitioner has executed the agreement after due inspection of site and after full knowledge about the site condition. Gundaih (PW. 1) was unable to name the officer concerned who had misrepresented to him about nonexistence of wet excavation or non-requirement of dewatering in heavy quantity. Beside Shri J. S. Rajpoot and Shri V. B. Shaligaram and Bhajan Singh were not cross examined by the petitioner as to the alleged misrepresentation about the nature of the work involved. Thus, no positive representation to the tenderer was made that there would be no surface water, nor there would be subsoil water up to the depth of the canal bed level. Thus, decision rendered by the Tribunal on Issue No. 1 (a) and Issue No. 2 (a) and (b) is found to be proper. ( 8. ) WE have found that the work of dewatering as well as wet excavation was clearly contemplated under Item No. 1 of Schedule g of Article A, the agreement entered into between the parties , thus, the Superintending Engineer had acted beyond his power in even sanctioning the adhoc rates, there was no jurisdiction with the superintending Engineer to treat the items covered under the agreement as "extra items". As petitioner has claimed for fixation of final rates, obviously it becomes imperative to go into the question whether petitioner can be said to be entitled for any amount for dewatering and wet excavation treating these works to be "extra item", answer is against the petitioner. Thus, it is rendered insignificant in the instant case whether State or any other higher authority had authority not to treat the aforesaid items as extra item as on merit the claim has not been found to be admissible. It was clearly an action beyond the jurisdiction and competence of Superintending Engineer to treat the aforesaid work as "extra item" as it was not an "extra item" but was covered under item No. 1, thus, petitioner cannot be allowed to reap the fruits on the basis of an illegal and without jurisdictional act of superintending Engineer, thus, the decision of Tribunal rejecting the claim of petitioner is,thus, found to be proper. As a necessary corollary it follows that the amount paid under adhoc fixation of rates by the Superintending Engineer acting illegally and without jurisdiction could not have been retained by the contractor. Substantial justice has been done by the Tribunal in this regard. ( 9. ) COMING to the submission raised by Shri Rao, learned senior counsel appearing for Contractor that respondents have not approached the final authority as per the agreement for recovery of the amount paid under adhoc fixation of rates and no notice was given to the contractor before laying the counter claim,thus, counter claim could not have been entertained by the Arbitration tribunal, he has pressed into service decision of Full Bench of this court in Ravikant Bansal vs. M. P. Audyogik Kendra Vikas nigam (Gwalior) Ltd. (supra ). No doubt about it that it was necessary to approach the final authority under the agreement before filing the counter claim as held by the Full Bench of this court, aforesaid proposition of law cannot be disputed, however, in order to entertain it, there has to be availability of factual matrix, it is a question of fact whether final authority under the agreement was approached by the respondents or not, similarly the submission that no notice was given before laying counter claim also basically involves question of investigation into the facts for that there has to be an assertion in the pleading in reply to the counter claim, aforesaid pleas were not taken nor these pleas were orally pressed before the Tribunal and consequently no decision has been rendered by the Tribunal. Admittedly, for the first time, the submission has been made in this Court and it is fairly conceded by Shri Rao with his usual fairness that since Full Bench decision has come now the plea in writing and oral submission was not raised before the Arbitration Tribunal. Thus, having failed to lay down the factual foundation for entertaining the aforesaid submissions, the submissions are simply stated to be rejected. ( 10. ) TRYING to catch the last straw like a drowning fish at the fag end Shri Rao has submitted that rate of interest be reduced from 12% to 9% ,considering the fluctuations in the interest rates from time to time interest rate at the rate of 12% would be onerous as it has been awarded with effect from 1989. The submission has been opposed by Shri Jaiswal,learned Sr. Advocate and Shri Sudesh verma, GA. However, in our opinion, substantial justice would be met in case rate of interest is reduced with effect from 1. 1. 2001 till payment is made at the rate of 9% per annum, with effect from date of award till 31. 12. 2000 the rate of interest @ 12% per annum is affirmed. ( 11. ) WITH the aforesaid modification as to rate of interest, the revision stands disposed of. No costs.