Union of India v. M/s Puna Hinda

10. (e) Breast Walls: Breast Walls provisioned between Km 26.800 to Km 31.000 and between Km 31.000 to Km 47.850 at locations mentioned in Annexure V to (f) Lined drain: Lined drain for 13271.00 Mtr length of trapezoidal shape in plum concrete between Km 26.800 and Km 47.850 at locations as arrived at after Joint Survey and mentioned at Annexure-VI to (g) Road Furniture: Road furniture provisioned between Km 26.800 and Km 47.850 as per Annexure-VII to Appendix ‘B’ are recommended for providing/fixing on

25. Working drawings of all permanent structures (different sizes/types) are enclosed with this Board of Officers.

26. Construction of permanent structures at designated locations or otherwise will only be executed after obtaining prior approval of Engineer-in-Charge/OC Contract as per ground requirement.

27. The quantity of items of Permanent works as arrived at after Joint Survey between Km 26.800 and Km 47.850 as per details given at Table-2 of Appendix ‘B’ are recommended for execution on ground and will form the basis of RAR payments to be made as per Contract Provision/Stipulation during execution of works under CA No. CE/VTK/03/2009-10. Amendment in quantities of permanent works is recommended only during final stage of completion of permanent works.

SURFACING WORKS

28. No surfacing works has been executed departmentally between Km 26.800 and Km 47.850. Quantities of various items of surfacing works as arrived at after Joint Survey as per details given at Appendix ‘D’ are recommended for execution on ground under CA No. CE/VTK/03/2009-10.

3 Preparation of subgrade in HR Sqm 21227.21 0.00 4 Sand Blanketting 25mm Sqm 21227.21 0.00 5 GSB 150mm thick Sqm 97317.50 5.90 6 GSB 100mm thick Sqm 64229.50 2.60 7 WMM 75mm thick Sqm 256370.31 15.54 8 Prime coat over WMM surface Sqm 85456.71 0.00 9 BM 50mm thick Sqm 85456.71 10.36 10 SDBC 25mm thick Sqm 85456.71 5.18 Total Surfacing Km Eqvt Cl-9 39.58

29. However, if the soil classification varies from the enclosed strata as shown in (Annexure-I to Appx “C”), layer combination shall be revised accordingly and be executed after prior approval of OC Contract duly supported with photographs of Soil strata.

30. Amendment in quantities of surfacing works are recommended only during final stage of completion of surfacing works. xx xx xx CE/VTK/03/2009-10 ON ROAD LUMLA-TASHIGONG BETWEEN KM 26.800

TO KM 47.850

┌─────────────────────────────────────────────────────────────────┐
│

┌─────────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┐
│                               KM 26.800 TO KM 47.850                                                                    │
│      Sl.   Location            Earth      Work   involved      in       Earth        Jungle       Unlined  Unlined      │
│      No.                       CUM                                      work in      Clearance    Drain in Drain   in   │
│            From        To                  Cutting                      Emban-                    SR (M)   HR(M)        │
│                                                                         kment                                           │
│                                SMB        SR             HR                                                             │
├─────────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┤
│      1     26.800      31.0    1872       1735.04        7631. 42       0.00         0            125.00    217.80      │
│                        00      7.01                                                                                     │
│      2     31.000      47.8    35616      182073.        337447.0       0.00         23123.0      2174.8    4928        │
│                        50      6.00       00             0                                        0                     │
│                       Presiding Officer                             Lt Col Dhiraj Minotra, OC, 117 RCC                  │
│                                                                     (GREF) OC Contract                                  │
│                       Member                         1              Sd/- (Comments KS, AE(Civil) Eng-in-                │
│                                                                     Charge                                              │
│                                                                     117 RCC (GREF)                                      │
│                                                  2                  Shri __________A Holder Authorized rep of M/s       │
│                                                                     Puna Hinda                                          │
└─────────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┘

69.1. The Court may not examine the issue unless the action has some public law character attached to it.

69.2. Whenever a particular mode of settlement of dispute is provided in the contract, the High Court would refuse to exercise its discretion under Article 226 of the Constitution and relegate the party to the said mode of settlement, particularly when settlement of disputes is to be resorted to through the means of arbitration.

69.3. If there are very serious disputed questions of fact which are of complex nature and require oral evidence for their determination.

69.4. Money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances.”

19. It was thus argued that in view of the arbitration clause available to resolve the disputes, the order of the High Court was unwarranted and untenable. It was also argued that the High Court in the impugned order has held that resurvey was not possible as five monsoons have passed, therefore, the appellants were directed to approve the DPR and pay the pending bills on the basis of Final Joint Report.

20. The letter dated 27.8.2015 was issued by the Chief Engineer, Project Vartak denying the allegations levelled by the writ petitioner and informing the writ petitioner that the Board of Officers is being cancelled at his request. It was also pointed out that the Board of Officers was constituted at the request of the writ petitioner to resolve the matter. The letter dated 21.10.2015 was in fact reply to the notice served by the petitioner under Section 80 of Code of Civil Procedure, 1908.

21. Ms. Meenakshi Arora, learned senior counsel for the writ petitioner, contended that the officer who had written such abovementioned letter was not the competent authority to write the same. Such argument was based upon an averment in the memorandum of appeal. The memorandum of appeal was signed by the panel counsel and was not supported by any affidavit of an officer of the appellant. We do not find any merit in the said argument raised. The letter itself stated that it has been approved by the Competent Authority. It appears that the decision was taken by the competent authority but the communication was issued by an officer on behalf of the competent authority. The basis of Joint Survey Report itself has been found to be fallacious. This Report appears to be a friendly act of some of the officers of the appellant, to grant benefit to the writ petitioner, though even not claimed by the petitioner at an early stage. The claim of Rs.23,68,11,589.02 in the letter dated 17.6.2014 has swelled into an amount of Rs. 35,51,80,651 as per the notice under Section 80 of the Code. Therefore, for the purposes of these proceedings, the communication dated 29.10.2013 cannot be permitted to be disputed by the writ petitioner.

22. The Board of Officers convened its meeting but the same was cancelled vide communication dated 8.6.2015. Thus, an attempt by the appellants to resolve the disputes regarding the measurements by constituting Board of Officers was scuttled by the writ petitioner for the reasons best known to him.

23. The High Court has based its order on the ground that after five monsoons, the final measurements could not be ascertained. If the final measurements could not be done at the spot, the contemporary evidence and the measurement books prepared from time to time could be the basis for determining the liability of the appellants. The Joint Survey Report is not an admitted measurement, though some officers might have signed it. The Report prepared after the completion of work wherein no such work done is reflected in the measurement book prepared during execution of work is an attempt to inflate the claim raised by the writ petitioner. The entire amount claimed by the writ petitioner is disputed. It has been asserted that the entire payment due as against the claim of work order had been made, as reflected from the following table: I Awarded cost of the work under the Contract Rs.31.87 Crores II Cost of the work already executed by the department on the same stretch before the award of work Rs.0.86 Cr. III Cost of the work as reduced in view of prior departmental work Rs.31.01 Crores IV Amended cost of work under the Contract Rs.35.03 Crores V Contract cost in revised DPR processed to Ministry of Road, Transport and Highways Rs. 42.27 Crores VI Payment made to the contractor/respondent herein inclusive of Rs.3.86 Crores as per the order dated 18.05.2017 of the Hon'ble High Court Rs.42.27 Crores VII Contractor's claim as per final bill dated 23.11.2015 Rs. 71. 76 Crores

24. Therefore, the dispute could not be raised by way of a writ petition on the disputed questions of fact. Though, the jurisdiction of the High Court is wide but in respect of pure contractual matters in the field of private law, having no statutory flavour, are better adjudicated upon by the forum agreed to by the parties. The dispute as to whether the amount is payable or not and/or how much amount is payable are disputed questions of facts. There is no admission on the part of the appellants to infer that the amount stands crystallized. Therefore, in the absence of any acceptance of Joint Survey Report by the competent authority, no right would accrue to the writ petitioner only because measurements cannot be undertaken after passage of time. Maybe, the resurvey cannot take place but the measurement books of the work executed from time to time would form a reasonable basis for assessing the amount due and payable to the writ petitioner, but such process could be undertaken only by the agreed forum i.e., arbitration and not by the Writ Court as it does not have the expertise in respect of measurements or construction of roads.

25. A perusal of the matter shows that collusion of some of the officers of the appellants with the contractor cannot be ruled out. Such collusion seems to be the basis of the writ petition filed before the High Court.

26. In view of the above discussion, we deem it appropriate to allow the present appeal while dismissing the writ petition filed by the writ petitioner before the High Court .............................................. J. (HEMANT GUPTA) ............................................. J. (A.S. BOPANNA) NEW DELHI; SEPTEMBER 6, 2021.