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2008 DIGILAW 94 (JK)

Inder Kumar Verma v. Union Of India

2008-03-31

J.P.SINGH

body2008
1. Contract for construction of retaining wall and other protection works for the approaches of bridge No. 155 ROB at ch. 50/389 including construction of approach road for Br. No. 155, diversion of existing Air Force Road, RCC road slab bridge span 1x4.50m on Air Force Road and construction of RCC box bridge span (1 x 1.00X1.00m) at ch. 49/114 on Jammu-Udhampur Rail Link Project (Contract agreement No. 140-A/cs/Dy. CE/C/UDM dated 17.06.2000), appears to have been sanctioned in favour of M/s Inder Kumar Verma, the petitioner. 2. Certain arbitration disputes having arisen between the parties, M/s Inder Kumar Verma had approached Lord Chief Justice to seek appointment of an arbitrator. Accusing the respondents of making unfair measurements of the works done by it which may affect the adjudication of its arbitration dispute, an application had been filed by the petitioner before Learned Principal District Judge, Jammu seeking appointment of an independent Commissioner to take measurements of its works done under Contract No. 74-W/8/72/WA/AL dated 3rd of March, 2000. 3. After considering rival contentions of the parties and finding the petitioners grievance justified, learned Principal District Judge, Jammu, while allowing its application, had held as follows: - "Dwelling on the other merits of the case, it is a fact that the case of the petitioner in another arbitration proceeding instituted before institution of this petition is subjudice and the date of measurement mentioned in the notice corresponds with the date on which the case was listed before this Court. Though, the petitioner was not required to be present in the Court as he was represented by his Advocate yet he has chosen to appear in the Court but at least he could have deputed his representative in whose presence the respondents could have made the measurement. Whatever it may but one thing is certain that petitioner was caught in between the two and by choosing to appear in this Court in his earlier petition he is deprived of his right to have the measurement in his presence. Good conscience, fair play and principle of natural justice demand that measurement should have been made in presence of the petitioners which has not been done in the case in hand. Good conscience, fair play and principle of natural justice demand that measurement should have been made in presence of the petitioners which has not been done in the case in hand. Even otherwise no prejudice will be caused to the respondent as after termination of the contract left over work is not allotted to other contractor and it will be in the interest of both the contracting parties if the de novo measurement is made in presence of the petitioner. As such the petitioner has made out a prima facie case for making de novo measurement in his presence by the respondent, therefore, in the interest of justice it is directed that the de novo measurement be made of the work done by the petitioner in his presence by the respondent after service him a fresh notice. With these directions the present petition is disposed of. The file after due compilation be consigned to records." 4. There being no challenge to this Order of learned District Judge by any of the parties, it had attained finality. 5. Petitioner had, however, thereafter lodged a complaint with the learned District Judge accusing the respondents of willful disobedience of March 13, 2006 order, in that, they had taken measurements of only 30% to 35% of the total work done by the petitioner and had thereafter omitted to comply with the Court directions in taking the measurements of the whole work done by the petitioner. 6. After considering respondents objections to the petitioners complaint (contempt petition) and petitioners yet another application seeking issuance of fresh injunctive directions, learned District Judge had issued an order on May 2, 2006, rejecting both the applications of the petitioner. 7. 6. After considering respondents objections to the petitioners complaint (contempt petition) and petitioners yet another application seeking issuance of fresh injunctive directions, learned District Judge had issued an order on May 2, 2006, rejecting both the applications of the petitioner. 7. While rejecting petitioners applications, learned District Judge had taken the view, which for facility of reference is reproduced hereunder: - "Out of which the present controversy has arisen led me to hold without hesitation in clear and unequivocal terms that the intent of the order was to take measurement of the date when he petitioner was absent as is envisaged in the notice dated 23.12.2005 annexure `A issued by the respondents for taking measurement and this measurement is obviously the measurement recorded in absence of the petitioner or his representative, which the respondent has now taken as per the annexure-7 placed on record with the objections which has not been disputed by the petitioner and has been signed by him in the measurement book. In view of this there is no non-compliance of the order and the argument with regard to de novo measurement raised by the Advocate of the petitioner is misconceived and does not mean re-measurement of the work from zero level but from the stage of issue of notice dated 23.12.2005 annexure `A sent to the petitioners by the respondents. It is this measurement which is important and significant and with regard to which the Court has passed the order which is to be considered and has been considered by the respondents. So far measurement of the work is concerned it is contained in article 45 of the General Condition of Contract which pertains to the measurement of work recorded in the official Measurement Book signed by both the parties and acknowledgement of which is accepted to be correct are the basis for preparing the final payment as provided under article 46 of the General Condition of Contract. The General Condition do contain the provision for making of on account payment. All measurements which are recorded in the official books signed by the parties to the contract are to be taken into consideration at the time of final settlement of the work completed, incomplete, left over, etc. The General Condition do contain the provision for making of on account payment. All measurements which are recorded in the official books signed by the parties to the contract are to be taken into consideration at the time of final settlement of the work completed, incomplete, left over, etc. Apart from this I find Clause 51 of the General Conditions of Contract which deals with final payment further clarifies bills in respect of works all adjustment to be made and balance of the account based on the engineer or engineers representative certified measurement of the total quantity of work executed by the contractor on the date of completion. Thus it is the stage of the completion of the work which has been entered in the measurement book which is a certified measurement which is to be taken into account at the, time of final payment and does not deal with the re-measurement of the whole work. Had the intention been so it would have been clearly incorporated the work `re-measurement. At the time of entire execution of the work which is not so. In the present Case the controversy which is projected between the parties is required to be adjudicated upon and decided by arbitrator and not under the present petition under Section 9 which only pertains to the interim measures. If either party, is effected by the measurement recorded in the measurement books or the payment made or payment due the same can only be addressed and adjudicated during the arbitral proceedings. However, it is made clear that Union of India works through Officers and as such formally Union of India is not to be arrayed as party. If an act is not complied with by an officer that officer is to be proceeded in accordance with law. In view of the facts and the circumstances of the case narrated above the order of this Court dated 13.03.2006 clearly, stipulated and intended to take de novo measurement of the work not recorded in presence of both the parties only. Moreover a separate application for temporary injunction is not maintainable. The only provision contained is under Section 9 of the J&K Arbitration and Conciliation Act, 1997 for a temporary arrangement. Moreover a separate application for temporary injunction is not maintainable. The only provision contained is under Section 9 of the J&K Arbitration and Conciliation Act, 1997 for a temporary arrangement. Provision of Order 39 CPC does no apply to the provision of J&K Arbitration and Conciliation Act, 1997 as the J&K Arbitration and Conciliation Act, 1997 is a complete code in itself. Section 9 of the Act is a Special Prevision under which the interim measurement etc. can be made/ordered by the Court. Coming to the last argument of the Advocate of the petitioner with regard to taking of the action against the respondent No. 1 for using the name of the court at the time of issue of the notice, it is admitted fact that the respondent cannot use the name of the Court and this act of the respondent is unwarranted required to be deprecated with warning to desist from using the name of this Court in future. Let a copy of this order be sent to the respondent No.2 and his superior officers. Any observation made by this Court shall not be taken against any party in the arbitration proceedings, if taken. As stated hereinabove the order of the Court has been complied with therefore ad-interim relief application as well as the present contempt application are not sustainable and are disposed of accordingly. Both the applications after due compilation be consigned to records." 8. Aggrieved by the dismissal of its contempt petition and District Judges interpretation of its Order of March 13, 2006, the petitioner has moved this Court by filing Civil Revision No. 62/2006 against Order of May 2, 2006 of Principal District Judge, Jammu. Civil 1st Miscellaneous Appeal No. 142/2006 has been filed against Order of March 13, 2006 in view of the interpretation placed on it by Order dated May 2, 2006 and Civil 1st Miscellaneous Appeal No. 141/2006 is directed against Principal District Judge, Jammus Order of May 8, 2006 whereby he had dismissed petitioner/appellants second application seeking appointment of an independent commissioner for taking measurements. 9. As the controversy raised in the Civil Revision and the Civil Miscellaneous Appeals has arisen out of learned District Judges explanatory/modificatory order of May 2, 2006 so all these matters, which had been heard together are being taken up for joint disposal by this judgment. 10. 9. As the controversy raised in the Civil Revision and the Civil Miscellaneous Appeals has arisen out of learned District Judges explanatory/modificatory order of May 2, 2006 so all these matters, which had been heard together are being taken up for joint disposal by this judgment. 10. Perusal of learned District Judges Order of March 13, 2006 on petitioners application under Section 9 of the Jammu and Kashmir Arbitration and Conciliation Act, 1997, does not indicate that the respondents had to conduct de novo measurements of only those measurements which had been taken by them in its absence on January 3, 2006. Concluding portion of the order of the learned Principal District Judge indicates that he had commanded the respondents to take de novo measurements of the work which had been allotted to it in terms of Contract No. 74-W/8/72/WA/AL dated 3rd of March, 2000. This direction of Learned District Judge, Jammu for facility of reference is reproduced hereunder: - "As such the petitioner has made out a prima facie case for making de novo measurement in his presence by the respondent, therefore, in the interest of justice is directed that the de novo measurement be made of the work done by the petitioner in his presence by the respondent after service him a fresh notice. With these directions the present petition is disposed of. The file after due compilation be consigned to records." 11. This direction, as it so appears, is explicit and unambiguous. It does not admit of any restrictive intent of providing for de novo measurements of only those works whose measurement had been taken by the respondents on January 3, 2006. 12. That apart, a reading of petitioners application which had been allowed by Learned Principal District Judge too indicates that the petitioner had sought the relief of getting the measurements of the work done by him under the contract awarded to him vide Allotment Letter No. 74-W/8/72/WA/AL dated 3rd of March, 2000. 13. Objections filed by the respondents too do not indicate about any such plea of the respondents that the petitioner was not entitled to seek de novo measurements of those works which had been measured by the respondents in the absence of the petitioner. 14. 13. Objections filed by the respondents too do not indicate about any such plea of the respondents that the petitioner was not entitled to seek de novo measurements of those works which had been measured by the respondents in the absence of the petitioner. 14. Notice issued by Deputy Chief Engineer/ Construction to the petitioner on 23rd of December, 2005, which formed part of petitioners application seeking appointment of a Commissioner needs to be noticed at this stage. It reads thus: - NORTHERN RAILWAY Regd./Speed Post Office of the Without Prejudice Dy. Cheif Engineer (c) Jammu Tawi. No. 140-Acs/Dy.CE/C/JAT Dated: 23.12.2005 M/s Inder Kumar Verma, 192/5, JDA Housing Colony, Roop Nagar, Jammu (J&K). Sub: Construction of retaining wall and other protection works for the approaches of bridge No. 155 ROB at ch. 50/389, including construction of approach road for Br. No. 155, diversion of existing Air Force Road, RCC road slab bridge span 1x4.50m on Air Force Road and construction of RCC box bridge span (1 x 1.00x1.00m) at ch. 49/144 on Jammu-Udhampur Rail Link Project. (Contract agreement No. 140-A/cs/Dy. CE/C/UDM dated 17.06.2000). D/Sirs, Forty eight hours (48 hrs.) notice was given to you under this office letter of even number dated 21.12.2005 but you have taken no action to commence the work/show adequate progress of the work. Since the period of 48 hours notice has already expired, the above contract stands rescinded in terms of clause 62 of General Conditions of Contract and the work under this contract will be carried out at your risk and cost. Final measurement of the work done by you under the said contract, shall be recorded from 10.00 hrs. onwards on 03.01.2006. Please arrange to be present at site or any of your authorized representative to witness and to sign the measurements, failing which the work will be measured in your absence and such measurements, as per provision of the Contract Agreement, shall not withstanding such absence, be binding upon you whether or not you shall have signed the measurement book. Kindly acknowledge receipt of this notice. Yours faithfully, Sd/- (Rajiv Dhankher) Dy. Chief Engineer/Const. for and on behalf of the president of India. Copy forwarded for information and necessary action to: - 1. The CE/C/North, NR, K.Gate, Delhi for kind information please. 2. DY. FA & CAO/C, N.Rly., JAT for information & necessary action please. 3. AEE/HQ/JAT. Kindly acknowledge receipt of this notice. Yours faithfully, Sd/- (Rajiv Dhankher) Dy. Chief Engineer/Const. for and on behalf of the president of India. Copy forwarded for information and necessary action to: - 1. The CE/C/North, NR, K.Gate, Delhi for kind information please. 2. DY. FA & CAO/C, N.Rly., JAT for information & necessary action please. 3. AEE/HQ/JAT. The final measurement of the work done by the contractor under the same contract must be recorded from 10.00 hrs. onwards on 03.01.06 in the manner indicated above. 4. The SE/W/HQ/JAT Shri K.K.Gupta for necessary action. 5. The FA & CAO/C, NR. K.Gate, Delhi." 15. Perusal of this Notice too reveals respondents intention of taking final measurements of the work done by the petitioner under Contract Agreement No. 140-A/cs/Dy. CE/C/UDM dated 17.06.2000. 16. The expression "final measurement of work done" appearing in the notice, when viewed in the light of Clause 62 of the General Conditions of Contract would mean that respondents had a contractual obligation to take final measurements of whole of the works which had been done by the contractor before the termination of his contract. In other words, the respondents were required to take de novo measurements of all the works done by the petitioner so that the measurements so taken in presence of the contractor could be taken as final measurements of the work done by him. 17. Portion of Clause 62 of the General Conditions of Contract, which may be relevant for adjudication of the issue involved in the case, is reproduced hereunder for facility of reference. 17. Portion of Clause 62 of the General Conditions of Contract, which may be relevant for adjudication of the issue involved in the case, is reproduced hereunder for facility of reference. It reads thus: "Then and in any of the said cases, the Engineer on behalf or the Railway may serve the Contractor with a notice (Proforma at Annexure III) in writing to that effect and if the Contractor does not within seven days after the delivery to him of such notice proceed to make good his default in so far as the same is capable of being made good and carry on the work or comply with such directions as aforesaid to the entire satisfaction of the Engineer, the Railway shall be entitled after giving 48 hours notice (Proforma at Annexure IV) in writing under the hand of the Engineer to rescind the contract as a whole or in part or parts (as may be such notice) and adopt either or both of the following courses :- (x) to carry out the whole of part or the work from which the contractor has been removed by the employment of the required labour and material, the costs of which shall include lead, lift freight, supervision and all incidental charges. (y) to measure up the whole or part of the work from which the contractor has been removed and to get it completed by another contractor, the manner and method in which such work is completed shall be in the entire discretion of the Engineer whose decision shall be final." 18. Learned District Judge has, therefore, in my opinion, exceeded his jurisdiction in proceeding to provide a different dimension to his Order of March 13, 2006, which in explicit terms had directed the respondents to take de novo measurements of the work done by the petitioner. 19. Learned District Judge has, therefore, in my opinion, exceeded his jurisdiction in proceeding to provide a different dimension to his Order of March 13, 2006, which in explicit terms had directed the respondents to take de novo measurements of the work done by the petitioner. 19. Even otherwise, learned District Judge had become functus officio after rendering his decision on respondents application under Section 9 of the Jammu and Kashmir Arbitration and Conciliation Act, 1997 and in the absence of any request or application from the respondents for any explanation or modification of his earlier order, there was no occasion for the Learned District Judge to say that at the time he had passed orders on "respondents application under section 9 of the Act, he had intended to say that only those works were required to be re-measured which had been measured in absence of the petitioner on January 3, 2006. Perusal of the order of learned District Judge reveals that he had not even hinted at the time of his recording March 13, 2006 order that de novo measurements had to be taken of only those works which had been measured in the absence of the petitioner on January 3, 2006. 20. Finding and commands of a Court are reflected by the words and expressions used by it in its order. Whatever is intended to convey by its findings or commands is thus required to be spelt out in the order itself. Intention of the judicial authority is thus gathered from the words, phrases and expressions used by the judicial authority in its orders. Any omission in the order of a judicial authority is thus required to be remedied and order modified only on a motion initiated in this behalf and that too after notice to the opposite party. This is so because any one aggrieved by such modification of Courts earlier order will not be deprived of its right to question the modified order in the superior forum/court. 21. This is so because any one aggrieved by such modification of Courts earlier order will not be deprived of its right to question the modified order in the superior forum/court. 21. Learned District Judges view that he had intended to permit de novo measurements of only those works which had been measured in the absence of the petitioner on January 3, 2006 cannot thus be accepted as correct for he had not used any such expression/s or words in his order wherefrom it may appear that he had intended to circumscribe his older to permit de novo measurements of only those works which had been measured in. the absence of the petitioner on January 3, 2006. 22. Petitioners complaint of non-implementation of learned District Judges directions should have been treated as an execution application by the learned District Judge to ensure compliance of his March 13, 2006 direction rather than issuing an explanatory order which had the effect of modification of his earlier order of March 13, 2006 which course, in my opinion, was impermissible. 23. For all what has been said above, I am, therefore, of the view that learned District Judge has erred in issuing May 2, 2006 order modifying his earlier order of March13, 2006 which has resulted in failure of justice warranting interference by this Court. Modification provided in District Judges order of May 2, 2006 to its March 13, 2006 order, cannot thus be sustained. 24. I would have left the petitioner free to approach learned Principal District Judge, Jammu, to seek execution of its order of March 13, 2006, but keeping in view the time which the parties have already spent in this litigation and keeping in view the urgency of getting the works of the petitioner measured, I deem it just and proper to allow this petition and while setting aside May 2, 2006 order of the learned Principal District Judge, Jammu direct that respondents shall implement learned Principal District Judge, Jammus order of March 13, 2006 in letter and spirit by taking de novo measurements of whole of the work done by the petitioner under Contract Agreement No. 140-A/cs/Dy. CE/C/UDM dated 17.06.2000. 25. Respondents shall report compliance to the learned Principal District Judge, Jammu, within a period of six weeks. 26. In view of setting aside of May 2, 2006 order of Learned Principal District Judge, Jammu, Civil Ist Miscellaneous Appeal Nos. CE/C/UDM dated 17.06.2000. 25. Respondents shall report compliance to the learned Principal District Judge, Jammu, within a period of six weeks. 26. In view of setting aside of May 2, 2006 order of Learned Principal District Judge, Jammu, Civil Ist Miscellaneous Appeal Nos. 141/2006 & 142/2006 have been rendered infructuous. These are disposed of accordingly.