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2020 DIGILAW 392 (CAL)

B. B. R. Construction Company v. Union Of India

2020-03-06

MOUSHUMI BHATTACHARYA

body2020
JUDGMENT Moushumi Bhattacharya, J. - The Award impugned in this application under Section 34 of the Arbitration and Conciliation Act, 1996 is of 21st October, 2016 delivered by a Tribunal of a Presiding Arbitrator and two Co-Arbitrators, all of who were Senior Officials and Engineers of Eastern Railways as on the date of the delivery of the Award. By the said Award, the nine of the eleven claims were rejected by the Tribunal and the counter-claim of the Railways was also rejected. The petitioner herein was the claimant in the arbitration proceedings. 2. The arbitration proceedings arose out of an agreement dated 29th January, 2010 entered into between the petitioner and Eastern Railways pursuant to the Railways receiving offers from the petitioner for the part construction of a new railway line between Dumka, Jharkhand and Rampurhat, West Bengal. The work awarded consisted of construction of 12 bridges to be completed within a period of 10 months. The contract was for a value of Rs.11.47 crores approximately. The contract was terminated by the respondent Railways on 16th July, 2012 on account of the work not being completed within the stipulated time. The petitioner thereafter invoked the arbitration clause as per Clause 64 of the General Conditions of Contract of 2001 (GCC) and the Arbitral Tribunal was constituted on 28th January, 2013. 3. 11 claims were filed by the petitioner/claimant including for work done, refund of security deposit and retention amount, amount of the bank guarantee deposited towards performance guarantee, increment in the price of materials, labour, fuel, etc. in respect of the works executed, compensation for onsite and offsite expenses and loss of business, interest at 18% on the claims and cost of arbitration proceedings. The Tribunal rejected two of the eleven claims on account of the subject-matter of the claims falling under "Excepted Matters" and awarded a sum of Rs.30,67,327/- in part, on account of the amount payable for the work executed by the petitioner. 4. Mr. Anubhav Sinha, learned counsel appearing for the petitioner challenges the Award on several grounds including that the claims do not fall under "Excepted Matters" as held by the Tribunal and that "Excepted Matters" are arbitrable. Counsel also takes the point of the Award being bereft of reasons where the issue of the termination has not been adjudicated at all. Mr. Anubhav Sinha, learned counsel appearing for the petitioner challenges the Award on several grounds including that the claims do not fall under "Excepted Matters" as held by the Tribunal and that "Excepted Matters" are arbitrable. Counsel also takes the point of the Award being bereft of reasons where the issue of the termination has not been adjudicated at all. It is submitted that Clauses 63 and 64 of the GCC are in restraint of legal proceedings under the Contract Act, 1872. On the question of "Excepted Matters", counsel submits that the claims which have been rejected by the Tribunal on the sole ground of the claims falling under "Excepted Matters" under Clauses 63 and 64 of the GCC is actually a wrong construction of the relevant clauses of the GCC. According to counsel, the claims of the petitioner do not fall under the category of "Excepted Matters" and places Clauses 8, 18, 22(5), 39, 43(2) and several other clauses to show that the claims fall outside the scope of Clause 63 relating to the "Settlement of Disputes and Indian Railway Arbitration Rules" which contains the matters which are to be finally determined by the Railways. Counsel relies on J.G. Engineers Private Limited Vs. Union of India, 2011 5 SCC 758 where it was held that the question relating to the accountability for the delay leading to termination of the contract was arbitrable. It is the petitioner's case that 90% of the total work was completed by the petitioner prior to the termination of the agreement on 16th July, 2012. It is also the petitioner's case that the delay was caused by the respondent on account of several changes made in the drawing of the bridge due to which the petitioner incurred expenses towards increments in the price of materials, labour, fuel, etc. as well as onsite and offsite expenses and suffered an escalation amount of Rs.22,00,000/- towards fuel charges, additional increment of labour, etc. 5. The next point urged is that all the matters classified as "Excepted Matters" by the Tribunal, are arbitrable. Counsel submits that even if it is held that the claims fall within the ambit of "Excepted Matters", the issue of termination and related questions are arbitrable. Counsel relies on General Manager, Northern Railway Vs. 5. The next point urged is that all the matters classified as "Excepted Matters" by the Tribunal, are arbitrable. Counsel submits that even if it is held that the claims fall within the ambit of "Excepted Matters", the issue of termination and related questions are arbitrable. Counsel relies on General Manager, Northern Railway Vs. Sarvesh Chopra, 2002 4 SCC 45 where it was held that if any claim falls under the ambit of "Excepted Matters" then such claim cannot be referred to arbitration. Counsel relies on State of West Bengal Vs. Pam Developments Private Limited,2017 SCCOnlineCal 13272 . Counsel submits that the impugned Award is a non-speaking Award which is contrary to the provisions of the 1996 Act. Reliance is placed on Anand Brothers Private Limited Vs. Union of India, 2015 AIR(SC) 125 and M. Rajkumar Vs. The General Manager, Southern Railway,2015 SCCOnlineMad 5926 (G.A.3451 of 2018) for the proposition that reasons must be taken in support of findings recorded by an Arbitrator and that the Arbitral Tribunal has to come to the conclusion whether the claim falls under an "Excepted Matter". Counsel relies on BSNL Vs. Motorola India (P) Limited, 2009 2 SCC 337 for the point that a unilateral right to decide on the quantum of the liquidated damages where such decision cannot be challenged would be in violation of Sections 28 and 74 of the Contract Act. On the rejection of the claim of interest by the Tribunal, counsel relies on Vedanta Limited Vs. Shenzen Shandong Nuclear Power Construction Company Limited, 2018 AIR(SC) 4773 , the Board of Trustees for the Port of Calcutta Vs. Engineers-De-Space-Age, 1996 1 SCC 516 and the State of U.P. Vs. Harish Chandra, 1999 1 SCC 63 for the proposition that a clause purporting to limit the Award of interest must be strictly construed and that Section 31(7)(b) of the 1996 Act is in respect of a postAward scenario and no agreement between the parties is envisaged for this. 6. Ms. Aparna Banerjee, learned counsel appearing for the respondent Railways seeks to sustain the Award primarily on the ground that in passing the impugned Award, the Arbitral Tribunal has taken into account the terms of the Contract and the GCC which form part and parcel of the tender documents. 6. Ms. Aparna Banerjee, learned counsel appearing for the respondent Railways seeks to sustain the Award primarily on the ground that in passing the impugned Award, the Arbitral Tribunal has taken into account the terms of the Contract and the GCC which form part and parcel of the tender documents. Counsel relies on Clause 62 of the GCC which provide inter alia that determination of a contract for the default of a contractor on certain contingencies will entitle the Engineer of the Railways to serve the contractor with a notice in writing and if the contractor does not, within seven days, from the delivery of such notice to him proceed to make good his default to the satisfaction of the Engineer, the Railway shall rescind the contract in whole or in part in writing under the hand of the Engineer upon giving 48 hours notice followed by a final termination notice. The Railway shall also be entitled to verify the security deposit and to recover the cost of carrying out the work in excess of the sum payable according to the certificate of the Engineer, from the contractor. Counsel also relies on Clause 63 of the GCC which states that the matters under Clause 62 are "Excepted Matters", namely, termination of a contract on the grounds mentioned therein and steps taken pursuant thereto. On the factual score, counsel submits that the petitioner could not complete the work within the stipulated period despite several extensions given to the petitioner thereafter. The petitioner has also failed to execute the work in a satisfactory manner and therefore, the petitioner was not entitled to make any of the claims or be awarded in respect of the same. Counsel relies on Clause 16(3) and 64(5) of the GCC which provides that no interest will be payable upon the earnest money and security deposit to the contractor and where the Arbitral Award is for the payment of money, no interest shall be payable on the whole or in part thereto for any party till the date on which the Award is made. Hence, the petitioner was not entitled to receive any sums on account of the interest claimed. Counsel relies on Rashtriya Chemicals and Fertilisers Ltd. Vs. Hence, the petitioner was not entitled to receive any sums on account of the interest claimed. Counsel relies on Rashtriya Chemicals and Fertilisers Ltd. Vs. Chowgule Brothers, 2010 AIR(SC) 3543 on the point that the Arbitrator has to stick to the specific terms and conditions of the contract and on MSK Projects India (JV) Ltd. Vs. State of Rajasthan, 2011 AIR(SC) 2979 that the Arbitral Tribunal cannot travel beyond the terms of reference. On the point of pre-reference and pendent lite reference, counsel relies on M/s Sree Kamatchi Amman Constuctions Vs. Divisional Railway Manager, 2010 AIR(SC) 3337 , Union of India Vs. Krafters Engineering and Leasing Private Limited, 2011 7 SCC 279 and Union of India Vs. Bright Power Projects, 2015 9 SCC 695 . Upon perusing the Award, the first impression which refuses to be displaced even on the arguments urged by the respondent Railways, is that the Award is unilateral, one-sided and seriously non-speaking. 7. The reasons for awarding/rejecting the claims appears from a tabulated statement in the Award headed with "Discussion of Awards". The grounds for rejecting nine out of the eleven claims are substantially the same. The reasons given by the Tribunal are reproduced below; Sl.No. Claim Tribunal Award 1. Amount payable towards refund of security deducted from R.A. bills and retention amount. The contractor has signed the agreement under Excepted Matters and hence bound by GCC. Hence no amount is considered payable under this claim. Hence, NIL amount is awarded against this item. 2. Amount payable towards wrongful encashment of bank guarantee Further, being Excepted Matter, the same is not within the jurisdiction of Arbitral Tribunal to adjudicate. No amount is considered payable under this claim. Hence, award is NIL against this item. 3. Amount payable towards refund of wrongful encashment of fixed deposit As per GCC, Railways have a right to terminate the contract under various provisos as available which it has done in the instant case (GCC 64). Also being Excepted Matter the claim is beyond the jurisdiction of the Arbitral Tribunal. The contractor has signed the agreement under Excepted Matters and hence bound by GCC. Hence no amount is considered payable under this claim. Award is NIL against this item. 4. Amount payable towards recovery of token penalty. Excepted Matter and also not in General Condition of Contract (GCC). The contractor has signed the agreement under Excepted Matters and hence bound by GCC. Hence no amount is considered payable under this claim. Award is NIL against this item. 4. Amount payable towards recovery of token penalty. Excepted Matter and also not in General Condition of Contract (GCC). Also since Railway Administration had considered the contractor to be at fault, Railway gave extension under 17(b) with token penalty. Arbitral Tribunal considered the matter and decided that the claim cannot be considered. Hence, award is NIL against this item. 5. Amount payable towards increment in the price of materials, labour, fuel etc. Since the termination itself is governed by the general conditions of contract wherein Railway reserves the right to terminate the contractor under the respective provisions of the clauses, which it has exercised keeping in view/mind the progress of the said contract. Hence, no amount is payable under this claim. 6. Compensation for prolongation of the work including onsite and offsite expenses NIL. 7. Interest at 18% per annum on the amount of claim nos.1 to 9 from 01.09.2012 till payment. This will be applicable as per Arbitration Clause. 8. Cost of Arbitration Proceedings including expenses incurred in Court matter. The Arbitration cost in this matter is NIL. 8. The above statement is loosely-based on the tabulation contained in the Award and excludes some of the claims and reasons. The statement has been given to show how inscrutable the reasons are. 9. The Railways retaining a right to terminate the contract and the claims falling under "Excepted Matters" is the basis of the decision in all the claims. There is not an iota of evidence in the discussion that the Tribunal made the slightest attempt to adjudicate on the rights of the parties starting from the legality of the termination. The unilateral manner of deciding assumes significance since the Arbitral Tribunal consists of officials of the Eastern Railways. Section 31(3) of the 1996 Act mandates that the Arbitral Award shall state the reasons upon which it is based unless the parties agree otherwise. Section 34(2)(b) stipulates that the Award may be set aside by a court if it is in conflict with the public policy of India. Explanation 1 provides that such a conflict would include contravention of the fundamental policy of Indian law. Section 34(2)(b) stipulates that the Award may be set aside by a court if it is in conflict with the public policy of India. Explanation 1 provides that such a conflict would include contravention of the fundamental policy of Indian law. Even on a first blush, the Award falls woefully short of the basic requirement of assessing the extent to which the Arbitral Tribunal has applied its mind to the issues before it. Without going to any of the other points raised by the parties herein, this court is of the view that the Award deserves to be set aside on this ground alone. 10. Clause 63 provides for certain clauses of the GCC or Special Conditions of the Contract which are to be finally determined by the Railways and be deemed as 'excepted matters'. The Clause provides that such matters are not arbitrable and decisions thereon by the Railway authorities shall be final and binding on the contractor, further that 'excepted matters' shall be excluded from the purview of the Arbitration Clause. Clause 64 (1) provides for the procedure to be followed for a demand for arbitration but excludes from the scope of disputes any of the 'excepted matters' under clause 63. For convenience, Clauses 63 and 64(1) are set out below; "63. Matters Finally Determined By The Railway : All disputes and differences of any kind whatsoever arising out of or in connection with the contract, whether during the progress of the work or after its completion and whether before or after the determination of the contract, shall be referred by the contractor to the GM and the GM shall, within 120 days after receipt of the contractor's representation, make and notify decisions on all matters referred to by the contractor in writing provided that matters for which provision has been made in Clauses 8, 18, 22(5), 39, 43(2), 45(a), 55, 55-A(5), 57, 57A, 61(1), 61(2) and 62(1) to (xii)(B) of Standard General Conditions of Contract or in any Clause of the Special Conditions of the Contract shall be deemed as 'excepted matters" (matters not arbitrable) and decisions of the Railway authority, thereon shall be final and binding on the contractor; provided further that 'excepted matters' shall stand specifically excluded from the purview of the Arbitration Clause. 64.(1) Demand For Arbitration : 64.(1) (i) In the event of any dispute or difference between the parties hereto as to the construction or operation of this contract, or the respective rights and liabilities of the parties on any matter in question, dispute or difference on any account or as to the withholding by the Railway of any certificate to which the contractor may claim to be entitled to, or if the Railway fails to make a decision within 120 days, then and in any such case, but except in any of the "excepted matters" referred to in Clause 63 of these Conditions, the contractor, after 120 days but within 180 days of his presenting his final claim on disputed matters shall demand in writing that the dispute or difference be referred to arbitration." 11. A reading of these Clauses makes it clear that the dispute or difference must fall under any of the 13 clauses as enumerated under Clause 63 for being excluded from the purview of Clause 64. What is striking is that the tribunal has not even mentioned the clauses under which the particular claim falls thereby excluding the claim from arbitration. Even otherwise, Claim no. 6 (for amounts payable towards increment in the price of materials, labour, fuel etc for the work executed from April 2012 till termination) has been rejected on the ground that the same is governed by the GCC. Claim no. 7 for compensation for prolongation of work and on-site/off-site expenses was rejected on an equally unilateral basis of no compensation being payable by the Railways, despite extension being given to the petitioner. Claim no.9 for compensation on account of loss of profit on the unexecuted part of the contract was rejected on the ground of the termination and related issues falling under excepted matters. There is a singular absence of conclusions drawn from the materials available before the Tribunal. 12. A Division Bench of this Court in Pam Developments clarified the scope of a 'No Damage' or a prohibitory clause in Railway contracts and whether an award of damages disregarding the effect of such a clause would be opposed to public policy. The facts of that case involved Clause 63 of the GCC which prohibited awarding compensation for idle labour, machinery etc. The facts of that case involved Clause 63 of the GCC which prohibited awarding compensation for idle labour, machinery etc. The case of the appellant Railways (award-debtor) was that the award fell afoul of section 34 in awarding damages to the respondent contractor (award-holder) despite there being a clause prohibiting the same. The contractor relied on the Railways being responsible for the termination of the contract and hence liable to compensate the contractor for the damages claimed in the arbitration proceedings. The mainstay of the appellant's case was Sarvesh Chopra where the Supreme Court in paragraph 15 of the Report made three exceptions for diluting the effect of excepted matters, namely, where (i) the contractor repudiates the contract under section 55 of the Contract Act; (ii) the employer extends the time or agrees to compensate for the delay; and (iii) the contractor clarifies that compensation for delay has to be made by the employer and the employer accepts the performance of the contractor despite the delay. 13. Upon considering a large number of decisions both in defence of as well as in challenge to "no damage/no liability clauses", the Division Bench limited Sarvesh Chopra within the scope of the 1940 Act where the court under Section 20 of the said Act retained the authority to assess whether the dispute should be referred to arbitration as opposed to the present regime under the 1996 Act where the role of the courts has been statutorily curtailed. From a reading of Sarvesh Chopra, it is clear that the effect of prohibitory clauses was not taken as the end-all of any question raised in respect of the same. Paragraph 15 of the said decision makes it clear that a claim in the face of a "no damage" clause may be entertained provided the employer was responsible for the delay in the performance of the contract and any one of the three conditions, stated above, was present. The respondent Railway's reliance on Sarvesh Chopra in defence of "Excepted Matters" has therefore to be seen in the light of the dilution of such clauses as held in paragraph 15 of Sarvesh Chopra. Further, a three-judge bench of the Supreme Court in Assam State Electricity Board Vs. The respondent Railway's reliance on Sarvesh Chopra in defence of "Excepted Matters" has therefore to be seen in the light of the dilution of such clauses as held in paragraph 15 of Sarvesh Chopra. Further, a three-judge bench of the Supreme Court in Assam State Electricity Board Vs. Buildworth Private Limited, 2017 AIR(SC) 3336 read down Sarvesh Chopra to the effect that a party to a contract would be entitled to make a claim for damages where the other party does not rescind it by invoking sections 55 and 56 of the Contract Act and accepts the delayed performance of reciprocal obligations. 14. This Court is further inclined to hold that Clauses 63 and 64 of the GCC which call for relinquishment of remedies and force the decisions of the Railway authorities on a contractor, would to that extent, fall within the mischief of section 28 of the Contract Act; 'Agreements in restraint of legal proceedings, void'. Clauses 63 and 64 compel a contracting party to be bound by the decision of the railway authority thus leaving the former without a legal remedy. In Rehmat-Un-Nissa Begam Vs. Price, 1917 AIR(PC) 116 , the principle was expressed with eloquence; "No man can exclude himself from the protection of the Courts....". BSNL vs Motorola, 2009 2 SCC 337 was passed on similar lines where a unilateral right to take a decision on the quantum of liquidated damages which was not amenable to challenge was held to be in violation of sections 28 and 74 of the Contract Act. When the terms of a contract are so one-sided and arbitrary so as to take away a contractor's right to seek legal recourse, can a contracting party be held to such terms and suffer the command of section 28 (3) of the Act? Prohibitory clauses and excepted matters which muzzle a party's right to question the legal sanctity of the clause or seek appropriate legal recourse against it must be allowed to escape the stranglehold of section 28 (3) of the 1996 Act. 15. The principle that restrictive clauses should be strictly construed entails at the very least, a construction of the clause by the Arbitral Tribunal. A corollary to the above would be the fundamental principle of the rule of law that a party cannot take advantage of its own wrong. 15. The principle that restrictive clauses should be strictly construed entails at the very least, a construction of the clause by the Arbitral Tribunal. A corollary to the above would be the fundamental principle of the rule of law that a party cannot take advantage of its own wrong. If the employer is responsible for the delay in preventing the completion of the contract within the stipulated time, the contractor cannot be prevented from claiming damages for the additional costs incurred by the contractor for the extended period of time on the bar of an "Excepted Matter". After all, a contract must be interpreted in a reasonable manner and against competing equities of the conduct of the parties together with the law which requires a party to be compensated for loss incurred on account of the failure to perform of the other party to the contract. If there is the slightest doubt in apportioning the blame for the delay, an Arbitral Tribunal should not exclude itself from adjudicating on the application of the prohibitory clauses in the contract. Significantly, the Tribunal came to a finding that "...... the above analysis brings out that the failures were on the part of both sides". Hence, a blanket reliance on the "Excepted Matters" on this finding was all the more unwarranted. This is all the more relevant where the contract involves a dominant party who is in a position to unilaterally dictate the terms to the other. The inequitable distribution of power in favour of one party and the ability of the other to bargain for a better deal touches upon the public policy of India and as well as the most basic notions of morality or justice envisaged under Section 34(2)(b)(ii) and (iii) of the Act. An Award which wholly relies on such unreasonable terms in the factual background such as this would reach the limits of unfairness so as to shock the conscience of the court. 16. It may also be mentioned that in Pam Developments, the argument of the appellant who was the employer and had challenged an Award of damages despite a 'No Damage' clause in the contract, was that the satisfaction and findings as to the existence of the exceptions recognized in Sarvesh Chopra had to be recorded in the Award. 16. It may also be mentioned that in Pam Developments, the argument of the appellant who was the employer and had challenged an Award of damages despite a 'No Damage' clause in the contract, was that the satisfaction and findings as to the existence of the exceptions recognized in Sarvesh Chopra had to be recorded in the Award. The converse should be equally applicable and the Arbitrator should have recorded the reasons as to why the exceptions in Sarvesh Chopra would not be applicable on similar facts when a claim for damages is denied on the strength of "Excepted Matters", as in the present case. Rashtriya Chemicals Vs. Chowgule, 2010 AIR(SC) 3543 has to be read in the light of the construction given to the Clauses 63 and 64 by the Tribunal as stated above. The validity of the termination attributable to delay was held to be arbitrable in J.G. Engineers. It cannot be ignored that in the present case, if the tribunal had held that the petitioner was not responsible for the delay, then the termination would have been invalidated and all the conclusions consequent thereupon would have collapsed. The Tribunal was under a duty therefore to adjudicate on this issue with reference to supporting documents instead of a blanket reference to 'excepted matters' since the claims were interlinked and dependent on the finding as to who was accountable for the delay. 17. 'With regard to the rejection of the claim for interest, this court finds substance in the argument of the petitioner that Section 31(7)(b) does not require party autonomy since the grant of interest is for the post-Award period [reference: Vedanta Limited Vs. Shenzen Shandong Nuclear Power Construction Company Limited, 2018 AIR(SC) 4773 ]. Moreover, Clause 64(5) of the GCC which states that where the Arbitral Award if for the payment of money, no interest shall be payable on the whole or part of the money for any period till the date on which the Award is made, indicates that there is no bar on the Arbitrator's awarding interest after the delivery of the Award. In this context, the decision of the Supreme Court in the Board of Trustees for the Port of Calcutta Vs. Engineers-De-Space-Age, 1996 1 SCC 516 is relevant where it was held that a clause purporting to limit award of interest should be strictly construed. In this context, the decision of the Supreme Court in the Board of Trustees for the Port of Calcutta Vs. Engineers-De-Space-Age, 1996 1 SCC 516 is relevant where it was held that a clause purporting to limit award of interest should be strictly construed. The claim of interest at 18% per annum from 1.9.2012 till payment was rejected on the ground that "this will be applicable as per Arbitration Clause" signifies nothing. Presumably, the Tribunal referred to Clause 64(5) which provides "where the Arbitral Award is for the payment of money, no interest shall be payable on whole or any part of the money for any period till the date on which the award is made" which has been construed in the manner as stated above, namely, that the said clause does not prohibit payment of interest post-Award. Claim no.11 with regard to cost of arbitration proceedings has also been adjudged as "NIL". No clause of the GCC has been referred to in this connection. On a reading of Clause 64(6), it is found that the clause provides for cost of arbitration to be borne by the respective parties and which shall include fees of the Arbitrator as per the rates fixed by the Railway Board which would be borne equally by both the parties. An Award similar to the purport of this clause is to be found in the counter-claim of the respondent/Railways where each has been directed to pray the cost of its expenditure towards cost of the arbitration proceedings. 18. The fact that the Tribunal has awarded security deposit and amounts payable as escalation costs in an Award dated 9th January, 2018 on a similar contract but has rejected identical claims in the Award impugned in the present proceeding is also significant. 19. In view of the above discussion, A.P. No.88 of 2017 is allowed in terms of prayer (a). The Award dated 21st October, 2016 is set aside to the extent of claim nos.2 to 7 and 9 to 10. The Award as to claim no.1 is being excluded from the purview of the A.P since the petitioner has filed a separate application in connection with the said Award. G.A. 3451 of 2017 20. This application has been filed by the petitioner for receiving an amount of Rs.30 lakhs awarded under the impugned Award dated 21st October, 2016. The Award as to claim no.1 is being excluded from the purview of the A.P since the petitioner has filed a separate application in connection with the said Award. G.A. 3451 of 2017 20. This application has been filed by the petitioner for receiving an amount of Rs.30 lakhs awarded under the impugned Award dated 21st October, 2016. This application arises out of the Award of the Tribunal in relation to the claim of Rs.30 lakhs made by the petitioner on account of the work executed but not paid. The Tribunal relied on the 32nd and final bill amount produced by the respondent Railways of Rs.30,67,327/- which has been vetted by a Senior Official of the Railways in a letter dated 02.03.2015 . In Awarding Rs.30,67,327/- against this claim, the Tribunal held that any overpayment done in the past should be adjusted suitably while making this payment. 21. The respondent Railways has not challenged this part of the Award. 22. The submission by counsel for the petitioner is that the question whether this court has the jurisdiction to decide this application has been resolved in the application being assigned to this court and appearing in the list together with A.P. No.88 of 2017 for a considerable length of time. Counsel submits that the final bill and 32nd Bill which forms part of the supplementary affidavit affirmed by the petitioner would show that the said was served on the petitioner under a letter dated 7th April, 2015. The total value of the work done has been indicated as Rs.30,67,327/- in the final bill. The petitioner however disputes the hand-written entry for royalty for Stone Dust amounting to Rs.21,675/- as such deduction is illegal under The Mines and Minerals (Development and Regulation) Act, 1957. The affidavit of the respondent to this application refers to this deduction for Stone Dust Royalty. Counsel relies on a certain errors in calculating the deductions on the basis of excess payment and submissions that the calculation arrived at by the Railways is on the basis of a wrong entry in the documents of the Railways. 23. The affidavit of the respondent to this application refers to this deduction for Stone Dust Royalty. Counsel relies on a certain errors in calculating the deductions on the basis of excess payment and submissions that the calculation arrived at by the Railways is on the basis of a wrong entry in the documents of the Railways. 23. On considering the Bills, this court finds merit in the contention that the deduction of Rs 21, 675 on account of Stone Dust does not find support from section 3 (e) of The Mines and Minerals (Development and Regulation) Act, 1957, which defines 'Minor Minerals' as building stones, gravel, ordinary clay etc and any other mineral which the Central Government may notify and declare in the Official Gazette as a minor mineral. The list of minor minerals in the Circular No. (S.O.423E) of Ministry of Mines, Central Government does not include 'Stone Dust'. Hence, there is no basis, nor has any been stated, for the deduction of Rs.21,675/- as Royalty for Stone Dust. 24. Second, the three deductions made on account of escalation in the 32nd and Final Bill which forms part of the affidavit of the Respondent Railways, are indicated in the corresponding bills. A comparison of the bills show that while two of the amounts namely Rs.19,39,989/- and Rs.34,02,387/- correctly match, the third amount mentioned as Rs.26,736.87/- is about Rs.10,500/- more than the amount of Rs.16,20,701/- indicated in the corresponding bill. 25. By reason of the obvious discrepancies as well and the deduction under Royalty payable for Stone dust being contrary to the relevant statute, G.A. 3451 of 2017 is allowed directing the respondent Eastern Railway to pay the petitioner the amount reconciled from the 3 relevant escalation bills, namely Rs.28,64,247/-, which amount also appears in the details of calculation given by the Railways of the 32nd and Final Bill of the petitioner. The petitioner is accordingly granted leave to receive this amount in terms of prayer (a) of the application. Urgent Photostat certified copy of this Judgment, if applied for, be supplied to the parties upon compliance of all requisite formalities.