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Mahavir Construction Company Vs. State of M.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectContract;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberC.R. No. 89 of 1990
Judge
Reported in1998(1)MPLJ69
ActsMadhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 - Sections 7, 12 and 19; Contract Act, 1872 - Sections 70; Evidence Act - Sections 115
AppellantMahavir Construction Company
RespondentState of M.P. and ors.
Appellant AdvocateK.P. Munshi, Adv.
Respondent AdvocateAlok Aradhe, Adv.
DispositionRevision dismissed
Cases ReferredCentral Inland Water Transport Corporation Ltd. v. Brojonath Ganguli
Excerpt:
- constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr......ordershambhoo singh, j.1. this revision is filed by unsuccessful applicant/petitioner under section 19 of the m. p. madhyastham adhikaran adhiniyam, 1983 (for short 'the adhiniyam) against the award dated 1-11-1989 passed by the m. p. arbitration tribunal, bhopal in reference case no. 55/87 filed under section 7 adhiniyam.2. it is not in dispute that on 25-1-1984, item-rate-tenders were invited for construction of 13 nos. of new structures and remodelling of mahanadi main canal from rd 87,000 m to rd 97,000 m. only two tenders were received, one by petitioner on 24-6-1984 with 177.27% above u.c.s.r. and other by m/s b. k. agrawal with 231.85% above u.c.s.r. it is also admitted that petitioner had submitted a letter ex. p/1-a dated 24-6-1984 addressed to superintending engineer along with.....
Judgment:
ORDER

Shambhoo Singh, J.

1. This Revision is filed by unsuccessful applicant/petitioner under section 19 of the M. P. Madhyastham Adhikaran Adhiniyam, 1983 (for short 'the Adhiniyam) against the award dated 1-11-1989 passed by the M. P. Arbitration Tribunal, Bhopal in Reference Case No. 55/87 filed under section 7 Adhiniyam.

2. It is not in dispute that on 25-1-1984, Item-rate-tenders were invited for construction of 13 Nos. of new structures and remodelling of Mahanadi Main Canal from RD 87,000 M to RD 97,000 M. Only two tenders were received, one by petitioner on 24-6-1984 with 177.27% above U.C.S.R. and other by M/s B. K. Agrawal with 231.85% above U.C.S.R. It is also admitted that petitioner had submitted a letter Ex. P/1-A dated 24-6-1984 addressed to Superintending Engineer along with tender documents which contained certain conditions but this letter was withdrawn unconditionally by a letter Ex. P/2-A dated 17-7-1984. The tender of the petitioner being low was accepted on 29-1-1985, the intimation of which was given to the petitioner by Executive Engineer vide his letter Ex. P/5 dated 22-2-1985. A contract agreement No. 1/D-1 of 84-85 (Article 'O') was executed on 15-3-1985. The work order was issued on 15-3-1985. This contract was for an amount of Rs. 1,48,95,683.00. It is also not disputed that the petitioner after starting the excavation work enquired about the borrow areas for soil. The Executive Engineer vide letter Ex. D/8 dated 24-8-1985 informed the petitioner that the excavation included all the leads and lifts and hence question of showing the borrow areas did not arise. The petitioner demanded payment for extra lead. It was not accepted. On this, the petitioner filed a claim under section 7 of the Adhiniyam for a period upto 30-6-1987 for an amount of Rs. 51 lakhs (giving up claim of Rs. 15 lakhs) for extra lead of earth with interest and costs thereon.

3. The case of the petitioner was that it quoted rates in the tender for item A-1 (earth work) with this understanding that the borrowing areas would be provided by the Department within free lead distance of 50 meters. The petitioner vide letter Ex. P/1-A dated 24-6-1984 submitted with the tender-documents sought clarification regarding assumption as to the availability of soil within free lead distance which was confirmed by the Chief Engineer vide his office letter Ex. P/4-A dated 17-7-1984. The Accounts Officer also sent Superintending Engineer's memo of clarification Ex. P/3-A with Ex. P/4-A. The officers of the respondents gave assurances to the petitioner that soil would be available in free lead area. The inter se correspondence between the Departmental Officers also confirmed this assumption. Acting on such assurances and representations, the petitioner executed the contract agreement. When the petitioner started work no soil was made available in the free lead area. The petitioner had to bring soil from distant Government quarry in which he had to incur huge additional expenditure. The respondents are legally bound to reimburse the extra expenditure incurred by the petitioner. When the respondents ultimately refused to make payment of the amount stated above, the petitioner filed a claim under section 7 of the Adhiniyam before the Tribunal.

4. The case of the respondents was that the Item A-1 of Schedule of quantities of the agreement regarding excavation was inclusive of all leads and lifts. There was no question of giving any assurance to the petitioner for payment of extra lead. The terms of contract were clear. This was the reason why the chart for quarries and borrow areas along with tender-documents or contract agreement was not furnished. For earth work, soil was to be brought from borrow area or approved quarry as the case may be. It was made clear by putting a note 'no separate lead and lift for any item will be paid.' It was further made clear that if suitable material in quantity/quality is not available in the considered quarry or if the considered quarry is not workable for any reason, and the contractor brings the suitable material from other quarries, no extra lead or lift shall be payable. For making arrangement for alternate quarries other than the considered quarries will be the sole responsibility of the contractor and the Department will extend possible help. It was the responsibility of the contractor to get himself acquainted with the nature and location of the works and existing conditions of the site. A pre-tender conference was arranged on 21-5-1984, in which clarifications could have been sought but the petitioner did not attend the aforesaid conference. As the petitioner knowing the condition that no lead and lift for any item will be paid, submitted tender with conditions enumerated in letter Ex. P/1-A dated 24-6-1984 with a lower amount but this letter Ex. P/1-A was unconditionally withdrawn on 17-7-1984 by letter Ex. P/2-A dated 17-7-1984. The petitioner over wrote date 17-7-1984 on the memo P/3-A actually dated 19-7-1984 as this memo (Ex. P/3-A) could not be sent with the letter Ex. P/4-A dated 17-7-1984. The Accounts Officer of the respondents had no authority to send the letter Ex. P/4-A on behalf of the Chief Engineer who had not passed orders to that effect. This document was manipulated. In this situation the petitioner cannot take advantage of inter se departmental correspondence. It was averred that except State Government, none could vary the terms of the contract. The Officers of the State Government had no authority to give any assurance or promise contrary to the clear terms of the contract.

5. The Tribunal rejected the claim of the petitioner. It held that the rate for excavation of soil, included all the lead and lift from any borrow area or approved quarries. According to the agreement, the petitioner is not entitled to separate lead and lift for any item as it was made clear that no extra lead and lift shall be available for any item, in case suitable material in quantity or quality is not available in the considered quarry. It was the sole responsibility of the contractor to make arrangement for quarry and borrow areas. It was held that the date on Ex. P/3-A was tampered 'with. It was obtained collusively. The Accounts Officer had no authority to send the letter Ex. P/4-A on behalf of the Chief Engineer. No assurance or representation was made to the petitioner, therefore, the question of application of promissory or equitable estoppel does not arise. On these grounds, the Tribunal rejected the claim of the petitioner, hence this revision.

6. Shri Munshi, learned counsel for the petitioner; submitted that learned members of the Tribunal misconducted themselves, as they cross-examined witnesses of the petitioner in such a way as if they are themselves parties in the proceedings. The Tribunal committed an error in holding that the dated of Ex. P/3 i.e. 19-7-1984 was tampered with and date 19 was made 17 by overwriting. He submitted that the Superintending Engineer vide letter Ex. P/3 dated 17-7-1984 confirmed that the assumption of the contractor that soil is available in free lead area is correct and a copy of this letter was sent by Chief Engineer to the petitioner with covering letter Ex. P/4-A. In view of this letter of confirmation, the petitioner entered into contract agreement with the Government on the clear understanding that the soil would be made available within the free lead area.

7. Shri Munshi averred that the Chief Engineer sent the letter Ex. P/24 dated 23-7-1984 to the Secretary along with Ex. P/10, the letter of Executive Engineer with statement of extra lead, and requested that the contractor be allowed to bring soil from Government open land for which extra lead will have to be paid. He contended that on the assurance and representation made by the Officers of the Government, the petitioner brought soil from the distant area. The Government is bound by the acts of their officers who had given assurances and made representations to the petitioner that the soil would be made available in the free lead area, therefore, on the principle of promissory/equitable estoppel the Government is liable to make payment of extra lead. The Tribunal committed an error in not taking into consideration the subsequent conduct of the parties. He averred that the Department was to provide borrow area in free lead distance and it failed to do so, therefore, the Tribunal erred in holding that the Government, is not liable to pay extra lead. Apart from the contract, the Government is also bound to compensate the petitioner under 70 of the Contract Act as they are enjoying the benefits of the work done by the petitioner. He submitted that the Tribunal committed illegality and material irregularity in rejecting petitioner's claim. Its findings are perverse and based on unfounded assumption of law and fact. He, therefore, prayed that the impugned award be set aside and the claim of the petitioner be allowed with interest at the rate of 6 percent per annum from the date of contract.

8. Against this, Shri Aradhe, learned Panel Lawyer, supported the impugned award. He contended that the petitioner submitted item-rate-tender for the excavation work with open eyes and signed contract agreement Article 'O' in which it was clearly mentioned that no extra lead and lift will be given. In Notes Nos. 1 and 3 of the agreement, it was clearly mentioned that if considered quarry is not workable for any reason, making arrangement for alternate quarries will solely be the responsibility of the contractor. Excavation would include all lead and all lift. He further submitted that the petitioner had withdrawn the letter Ex. P/1-A which was submitted by it stating that its assumption is that Government would make available earth within free lead area. He averred that the petitioner manipulated the date of letter Ex. P/3 purported to be written on 17-7-1984, though actually it was dated 19-7-1984 by Superintending Engineer to the Chief Engineer. The Accounts Officer of the Chief Engineer's office sent this letter to the petitioner, though he had no authority to do so. He submitted that terms of the contract were very clear, no assurance or representation was made by the officers of the Government, therefore, the question of promissory/equitable estoppel does not arise. The petitioner cannot take advantage of the inter se departmental correspondence. In fact, the State Government had alone the authority to vary the terms of the contract and, therefore, the Departmental Officers had no authority to give any assurance or promise contrary to the clear terms of the contract. The members of the Tribunal in cross-examining the petitioner's witnesses did not misconduct themselves. He further averred that the Executive Engineer vide his letter Ex. D/8 dated 24-8-1985 had made it clear to the petitioner that the Government would not make available soil in borrow area in free lead distance. In spite of this clear cut intimation, if the petitioner continued bringing earth from the distant area, the petitioner is responsible for his own action.

9. The pre-tender conference was fixed for 21-5-1984 for making clarification if any, but the petitioner did not attend it. Clause 19 of the General Condition of the Contract makes it clear that contractor should make himself fully acquainted with the location, site and quarry and, in fact, the partner of the petitioner, Shri Parik, inspected the site. Shri Aradhe submitted that section 70 of the Contract Act does not apply to the present case as the parties had entered into valid agreement and both parties are bound by its terms and conditions. He, therefore, prayed that the revision be dismissed and award passed by the Tribunal be confirmed.

10. The question that arises for consideration is whether it was the term and condition of the agreement that for excavation work the borrow area would be provided by the respondent Government to the petitioner contractor within free lead area i.e. within the distance of 50-60 meters from the canal. The argument of the petitioner in this regard is that the language employed in the schedule of quantities of the agreement relating to earth work was ambiguous. In quarry chart, attached to tender-document Government land, borrow area for approved quarry was not shown from where the soil was to be brought. This was the reason why the petitioner vide letter Ex. P/1-A sought clarification from the Chief Engineer. For appreciation of this question, it is necessary to look into the schedule of quantities which is as follows :-

ITEM A : Earth Work -

1. 'Excavation in all types of soils for canal earth work including watering and compaction by light power roller (as per specification) making the canal section (including banks) as per designed cross section either by cutting or filling after borrowing earth from borrow area or approved quarry as the case may be, including dressing, trimming of bed and slopes after cutting and filling as per required specification and direction of the Engineer-in-Charge including all lead and all lift and disposal of excavated materials as and where directed.'

NOTE :

(1) No separate lead and lift for any item will be paid.

(2) ...........................

(3) No extra lead or lift shall he payable for any item in case suitable materials in quantity/quality is not available in the considered quarry or if the considered quarry is not workable for any reason and contractor brings the suitable materials from other quarries. Placing and arranging alternate quarries other than the considered quarry will be solely the contractor's responsibility and the department will extend the help to the extent possible.

10A. The Tribunal keeping in view the material observation of the Supreme Court regarding interpretation and construction of document in the case of Provash Chandra Dalui v. Biswanath Banerjee, AIR 1989 SC 1834 consider Item A-1 and held that excavation of soil included all lead and lift from any borrow area or approved quarry. We find no reason to disagree with the Tribunal on this point.

11. A plain reading of this schedule makes it clear that the parties agreed that earth work will be done by borrowing earth from borrow area or approved quarry including all lead and lift. The rate of excavation will include all lead and lift. It is further confirmed by Note Nos. 1 and 3. It is not only, mentioned in these notes that no separate lead and lift for any item will be paid but it was also made clear that in case suitable material in quantity/quality is not available in the considered quarry or considered quarry is not workable for any reason and contractor has to bring the suitable material from other quarries even then no extra lead or lift shall be payable. It was further made clear by providing that making arrangements for alternate quarries other than the considered quarries will be solely the contractors responsibility.

12. It is true that in quarry chart no quarry or borrow area is shown. The reason is clear that no responsibility was laid on the respondent to provide soil within free lead distance. The responsibility of making arrangement for quarry was on the contractor-petitioner, this was the reason why borrow area or approved quarry was not shown in the chart. It is true that the petitioner had submitted letter Ex. P/1-A addressed to the Superintending Engineer along with the tender-documents stating that approved soil quarry is not mentioned in quarry chart, it is understood that the soil is within the free lead. But this letter was withdrawn by letter Ex. P/2-A on 17-7-1984 unconditionally. The withdrawal of the letter makes it clear that the petitioner understood the terms of the contract. It has come in the evidence that pre-tender conference was arranged on 25-1-1984. The purpose behind this conference was for making clarification, if any demanded by the tenderers, but admittedly the petitioner or its representative did not attend this conference. This, further shows that the petitioner understood fully well that the arrangements of soil has to be made by it. According to clause 19 of the General Condition of Contract and NIT, the contractors should see the land from where the soil was to be brought to the canal and keeping this fact in mind should quote their rates. In view of this, Shri Parik had inspected the site and made acquainted with the borrow area. If the petitioner would have felt that the terms of the contract were ambiguous its representative would have attended this pre-tender conference and would have sought clarification.

13. The contention of the petitioner that it withdrew its letter Ex. P/1-A by its another letter Ex. P/2-A written to Superintending Engineer on 17-7-1984, on receiving Chief Engineer's letter Ex. P/4-A along with Superintending Engineer's letter Ex. P/3 dated 17-7-1984 in which it was mentioned that the contention of the contractor that the earth would be made available in free lead area, is correct, it quoted its rate, was not accepted by the Tribunal and rightly so.

14. The case of the petitioner mainly rests on the letter Ex. P/4-A purported to be written by the Chief Engineer to the petitioner and sent on 17-7-1984 along with letter P/3 purported to be dated 17-7-1984. The Tribunal on examination of evidence rightly came to the conclusion that these letters were manipulated. The counsel, who represented the petitioner in Tribunal very fairly admitted that the letter Ex. P/3-A (carbon copy of Ex. P/3-B in the file of Superintending Engineer) was dated 19-7-1984 and not 17-7-1984. Shri S. J. Rajgire (RW-1) Superintending Engineer stated on oath that the letter Ex. P/3-B (original in the file of Chief Engineer) was written by him on 19-7-1984 and was given to the Chief Engineer. Its carbon copy (office copy SE) is P/3-A. It is dated 19-7-1984 but on Ex. P/3-B (original in the file of Chief Engineer) date 19-7-1984 was made 17-7-1984 by over writing. Ex. P/3 and Ex. P/3/1 were certified to be true copies of Ex. P/3-B by Accounts Officer of the office of the Chief Engineer. The dates on Ex. P/3 and Ex. P/3-1 were manipulated and on 19-7-1984, 17-7-1984 was over written. This Ex. P/3 was sent by Shri Chouhan, Accounts Officer with Ex. P/4-A to the petitioner.

15. As the letter Ex. P/3-B was not in existence on 17-7-1984, it came into existence on 19-7-1984, it could not have been sent on 17-7-1984. Therefore, it is crystal clear that the letter Ex. P/4-A was written after 19-7-1984 but it was ante dated and was shown to have been written and sent on 17-7-1984 with oblique motive. The petitioner had' withdrawn letter Ex. P/1-A unconditionally on 17-7-1984, therefore, petitioner could not say that he quoted rates assuming that the soil would be made available in free lead distance and under these circumstances he could not file claim for extra lead i.e. transportation charges for bringing soil from distant government land. Therefore, to show that it withdrew letter Ex. P/1-A vide letter Ex. P/2-A on 17-7-1984 in consequence of letter Ex. P/4-A from Chief Engineer stating that the respondent would make soil available in free lead distance. As the respondent did not make earth available in free lead area, so, he brought soil from distant government land, therefore, he is entitled to get extra lead. This was the reason, the petitioner got Shri Chouhan, the Accounts Officer of the office of the Chief Engineer, to write letter Ex. P/4-A to the petitioner after January, 1985 showing it to have been written and sent on 17-7-1984 with the letter Ex. P/3 sent by the Superintending Engineer to the Chief Engineer. Shri Chouhan was not authorised to write this letter on behaif of the Chief Engineer. There was no order of the Chief Engineer in the note sheet to send such type of letter. It does not bear despatch number. The letter Ex. P/1 was sent by the petitioner to the Superintending Engineer and not to the Chief Engineer. No reply was sought by Ex. P/1. If at all reply was to be given, it was to be given by the Superintending Engineer. The tender was submitted by the petitioner on 24-6-1994, therefore the contention of the petitioner that in view of the letter Ex. P/4 and memo Ex. P/3, assuming that the respondent would make earth available within free lead distance, quoted his rates, is false. From the perusal of the schedule of work, as observed above, it is clear that making arrangement of soil was the responsibility of the petitioner, the petitioner after taking this fact into consideration and making inspection of the site quoted its rates.

16. Thus, the perusal of contract agreement Article 'B' and the evidence of the parties we conclude that according to the terms and conditions of the contract, the rates of excavation of earth included lead and lift.

17. It is true that the Superintending Engineer wrote letter Ex. P/3-A to the Chief Engineer stating that the earth would be made available on the site to the contractor in free lead area, the Executive Engineer wrote letter Ex. P/10 to the Chief Engineer slating that the soil was not available within free lead area as the owners of the fields were opposing digging of the soil. Land acquisition proceedings will take much time. Under the circumstances, the contractor should be allowed to bring soil from open government land and the lead should be paid to the contractor. Executive Engineer sent statement of extra. lead Ex. P/11 and agenda note P/12. According to the assessment, bringing of soil from distant place would require extra expenditure of Rs. 77.80 lakhs. The Chief Engineer also wrote a letter to the Secretary with his report Ex. P/15 with the statement of extra lead and agenda note. In this regard Ex. P/13 was written by Superintending Engineer to the Chief Engineer. Shri Munshi, learned counsel for the petitioner submitted that in view of these letters it is clear that the rates quoted by the petitioner did not include lead. In our view, these letters are internal correspondence and they do not give any right to the petitioner. They were suggestions and recommendations of the officers of the respondents. The Government was not bound by them. The officers were not authorised to change the terms of the contract. In Vasantkumar Radhakisan Vora v. Board of Trustees of the Port Bombay, (1991) 1 SCC 761 and The State of Rajasthan v. Motiram, AIR 1973 Rajasthan 223 it has been held that the government is not bound by the unauthorised note of the subordinate officers Sanjeev Naidu v. State of Madras, (1978) 1 SCC 443 does not apply to this case as these officers were not authorised to change the terms of the contract. Their acts are not the acts of State. The Government alone had the authority to alter the terms and conditions of the contract.

18. The argument that the officers of the respondent gave assurances and made representations to the petitioner that it would be paid extra amount for the lead and acting upon the assurances and representations, the petitioners spent 51 lakhs of rupees in bringing earth from the distance of 1.5 to 3 kms., therefore, the respondents on the principle of promissory/equitable estoppel are bound to reimburse the claim made by the petitioner for the above amount spent in bringing soil from the distant area, is not acceptable. No letter, except Ex. P/4-A has been produced by the petitioner in which the respondent government or their officers had given any assurance or made representation to the petitioner that he would be paid extra amount for bringing earth from the distant area. It is true that in the letter Ex. P/13 dated 2-1-1986, addressed by S.E.K.C. Dube to the Chief Engineer, it is mentioned that before the acceptance of the tender, Contractor was assured that soil was available in free lead. The petitioner could not show as to how these documents came in its possession. It was stated that these documents were sent to the petitioner but no covering letters have been produced. It is common knowledge that no document is sent without a covering letter by the government officials. It appears that the petitioner somehow obtained these documents. They are not addressed to the petitioner. The S. E. Shri S. J. Rajgire (RW 1) stated that on 2-1-1986 he was Superintending Engineer and not Shri K. C. Dube. This statement has not been challenged in cross-examination, under these circumstances, the letter, Ex. P/13, appear to be manipulated. In these documents neither any assurance was given nor any representation was made. Shri Parik (PW 1) stated that the Superintending Engineer had given him assurance that the expenditure made in bringing earth from the distant area would be paid but the Superintending Engineer Shri S. J. Rajgire (RW 1) denied this fact and stated hat he did not give any assurance to the petitioner that it would be paid the lead. This witness has not been cross-examined on the point and, therefore, there is no reason to disbelieve him. The Tribunal rightly held that the petitioner failed to prove that any assurance was given or the representation was made by the Government or their officers to the petitioner that it would bring soil from the distant government open land and it would be paid the expenditure incurred for the same. Thus, it is clear that the petitioner did not incur expenditure of Rs. 51 lakhs on the representations or assurances of the respondents.

19. For promissory estoppel it is required that the party asserting the estoppel must have relied and it must have changed or altered the position. The alteration of position by the party is the indispensable requirement of this doctrine Delhi Cloth and General Mills Ltd. v. Union of India, AIR 1987 SC 2415.

20. The doctrine of estoppel (promissory/equitable) does not apply to the case in hand as it was the term of the contract that the rates for excavation of soil did include all leads and lifts from any borrow area, therefore, no question of promissory estoppel does arise.

21. Shri Munshi, learned counsel for the petitioner submitted that the petitioner has executed earth work of 3,59,000 Cum by spending Rs. 51 lakhs in transporting soil from government open land, as shown in statement Annexure R/1 for canal bank formation. It has been voluntarily accepted by the Government and the Government is taking benefit of it, therefore, the Government is liable under section 70 of the Contract Act to compensate the petitioner. Shri Aradhe, learned counsel for the respondents submitted that section 70 is not applicable to the instant case as the soil was brought under valid contract and the rights and liabilities of the parties would be decided in the light of the contract. We are convinced that the argument advanced by Shri Munshi, learned counsel is without substance. The petitioner has not pleaded the case under section 70 of the Contract Act, in its petition before the Tribunal and no evidence was led to that effect. This is a mixed question of law and facts. Under the circumstances, the petitioner cannot advance arguments on this point in this revision petition. Even otherwise, section 70 of the Contract Act docs not apply. In the case of Stale of West Bengal v. M/s B. K. Mandal and Sons, AIR 1962 SC 779, and in the case of Mulamchand v. State of M. P., 1968 MPU 815 (SC), AIR 1968 SC 1218, the Supreme Court held that section 70 of the Contract Act would be applicable, where the contract was invalid or void. The contract in question is not invalid or void under Article 299 of the Constitution of India or any other law. In the instant case, rights of the parties have to be decided in the light of the terms and conditions of the contract which was entered into by the parties. Section 70 is quoted below :-

'Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.'

The reading of section 70 makes it clear that section 78 would be applicable to a case where a person does a thing for another not intended to act gratuitously and the other voluntarily accepts and enjoys it. In this case, both the parties entered into agreement which was reduced into writing. It is Article 'O'. It has been proved that according to the- agreement, the petitioner had to do earth work which included excavation of earth. Notes Nos. 1 and 3 of the contract agreement, Article 'O' make it clear that the lead and lift were inclusive in the rate quoted by the petitioner and accepted by the respondent. Under these circumstances section 78 does not apply, above cited judgments do not help the petitioner.

22. It has come in evidence that the petitioner asked the Executive Engineer to show him borrow area and the government quarry. On this, the Executive Engineer sent a letter Ex. D-8 dated 24-8-1985. In this letter it was made clear to the petitioner that the item A-1 of Schedule of quantities' was clear, the excavation rates included all leads and lifts, therefore, the question , of showing borrow areas within 'free lead' does not arise. It was further made clear that its assumption that the agreement is for free lead is not correct. The petitioner, after receiving letter Ex. D-8 started bringing soil from distant place on the work site. It is, therefore, clear that the petitioner had accepted the condition of the agreement and brought soil knowing full well that excavation rates included all leads and lifts and it would not be paid extra lead. Therefore, the petitioner is not entitled to get transportation charges.

23. It has come in the evidence of Bhawarlal (PW 3) that the work of bringing soil by trucks from the open government land away from the free lead on the bank of the canal was started from November, 1985 after receipt of letter Ex. D/8, therefore, the petitioner now cannot say that it brought soil from distant area in the assumption that if soil was not made available in free lead area and was brought from distant place, payment for extra lead would be made. The argument of the petitioner that the respondent did not stop petitioner bringing soil from distant place, therefore, government is bound to reimburse transporter charges, is without substance. In view of the terms of the agreement, the petitioner was under an obligation to make arrangement for quarry and bring soil from the place where it was available.

24. The contention of the learned counsel for the petitioner that the members of the Tribunal cross-examined witnesses of the petitioner, in such a way as if they were parties, it should be held that they misconducted themselves, is not acceptable. Under section 12 of the Act, the Tribunal has been vested with the same power as has been vested in a Court under the Code of Civil Procedure, when trying a suit in respect of examining witnesses. It is well settled that the Tribunal or the Court has every power to ask any question to any witness at the stage of hearing of a proceeding or trial for the purpose of finding out the truth. If at all any party is aggrieved in that context it has to put the submissions before the same tribunal or Court at that stage only. We are of the opinion that the Tribunal had powers to put Court questions to witnesses for the ends of justice. In the instant case, the Court questions made by the tribunal does not show that it was having any prejudice against the petitioner. The questions asked during-examination were not irrelevant. The reading of the questions and answers shows that clarification was sought about confusion in the dates of the letters Ex. P/3 and Ex. P/4-A. The questions put actually appear to be in the interest of justice. On which the petitioner was allowed to further examine the witnesses.

25. There is no dispute with the proposition that the Tribunal should be fair, impartial and honest in performing its duties and must observe strictly judicial standards, as observed by Supreme Court in case of Nandayal Cooperative Spinning Mills Ltd. v. K. V Mohan Rao, (1993) 2 SCC 654. There is also no dispute that not only justice should be done but it should also appear that justice has been done.

26. No doubt, as held in case of Central Inland Water Transport Corporation Ltd. v. Brojonath Ganguli, (1986) 3 SCC 156, Court can strike down arbitrary, unjust, unfair and unreasonable contract entered into between parties, who are not equal in bargaining power. But this authority does not apply to the case in hand as the terms and conditions of the contract are not unfair and unreasonable. Tenders were invited for construction of 13 numbers of new structures and remodelling on Mahanadi Main Canal and item-tender-rates were invited. It was made clear that the excavation of earth would include lead and lift. Seeing these conditions, the petitioner submitted their tenders. There was no pressure from the respondents to quote particular rate. The contractors including the petitioner, were free to quote the rates of their choice. The petitioner after inspecting site quoted the rates which were accepted by the respondents. The petitioner wanted to get its tender accepted, therefore, he quoted low rates knowing full well that the excavation of earth is inclusive of lead and lift and now after the acceptance of the tender and having entered into contract agreement, it wants contrary to the terms of the contract that should be paid extra amount for bringing earth from distant land.

27. It is true that the petitioner after starting work, asked the officers of the State to show borrow area. The Executive Engineer sent letter Ex. D/8, dated 24-8-1985 to the petitioner and made it clear that excavation rates to be inclusive of lead and lift, hence the question of showing borrow area within free lead distance did not arise. He made it more clear and stated that the presumption of the petitioner that the agreement was that soil would be made available in free lead area was not correct. After receipt of this letter the beginning of bringing the soil from the distant area, goes to show that the rates quoted by the petitioner were sufficient to meet the expenditure incurred in transportation of soil. In view of the express stipulation in the contract agreement the petitioner is not entitled to expenditure incurred in transporting soil from the land outside the free lead area.

28. The Tribunal discussed oral and documentary evidence produced by the parties in detail in paragraphs Nos. 36 to 40 in its award regarding the lead and quantity of soil transported on the site from various quarries. The Tribunal perused Annexure R/1, charts L-1 to L-5 on the basis of which Annexure R/1, was prepared, entries of running bill, Ex. D/10, petitioner's Book Art A' and statement of Shri Parikh (PW 1) and Bhanwarlal (PW 3) etc. and came to the conclusion that the petitioner failed to prove the actual lead and the quantity of soil transported from various distant quarries. We see no reason for not agreeing with the findings of the Tribunal and we hold that the petitioner is not entitled to recover Rs. 51 lakhs from the respondents.

29. The jurisdiction of this Court under section 19 of the Act is limited. This Court cannot exercise the powers of appellate Court. Findings recorded by the Tribunal are neither perverse nor illegal. In revision finding of facts cannot be interfered, though different view may be possible. The Tribunal has not misconducted itself or the proceedings. The award was not procured illegally, therefore, this revision deserves to be dismissed.

In view of above, this revision has no merit and, therefore, dismissed with no order as to costs.


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