B. K. MEHTA, S. H. SHETH, J.

( 1 ) THIS appeal by the State Government is directed against the judgment and decree of the Civil Judge (S. D.) Baroda in Special Civil Suit No. 72 of 1968 ordering the State Government to pay a sum of Rs. 78 747 paise with costs on the entire suit amount and with running interest at six per cent on the principal amount of Rs. 59 0 21 paise from the date of the suit till realisation and granting a permanent injunction restraining the State Government or its officers servants or agents from recovering or adjusting the amount of Rs. 25 0 claimed by the State Government as an excess payment to the deceased-contractor Shri P. P. Wadia. A few facts need be stated so as to appreciate the dispute involved in this appeal.

( 2 ) THE Executive Engineers Public Health in Public Works Department of the State of Gujarat had invited tenders for Dabhoi Water Supply Scheme. The tender filed by the deceased-contractor bearing No. B-24 of 1958 was accepted by the State Government as it was lowest. The estimated cost of the works in question was Rs. 3 7 440 the quotation of the aforesaid Contractor for execution of the said works was Rs. 2 82 557 The contract works consisted of constructing infiltra- tion wells inspection chambers jack-well with circular pump from connect- ing porous pipe line and constructing staff-quarters aqua privy etc. at Head works site and R. C. C. Tank in the town of Dabhoi near Municipal Garden. The contract document in respect of the aforesaid works was executed by and between the parties on 30th June 1958 The works com- menced on 27th November 1958 One of the items of works was laying down porous pipes in the bed of river Orsand near Dabhoi town by doing excavation and refilling the trenches in which pipes were to be laid down. This item of work had to be executed in the river-bed where there was a lot of sand. Since the river was stormy and the bed was sandy at the site of the work it was not possible to execute the work of laying porous pipes by excavation as required under the suit contract. The deceased- Contractor therefore brought this fact to the notice of the executive Engineer as well as the Deputy Engineer in charge of the works. The Contractor asked for the instructions from the Executive Engineer as to how he should proceed in execution of the works in view of the difficult nature of the item of work due to peculiar site condition. In the initial stages the Executive Engineer could not decide and therefore could not give instructions as to how the deceased-Contractor should proceed with the work. The contractor therefore was left with no alternative but to start laying pipes in the 10 feet wide excavation made at the top as required under the contract. The Contractor had therefore to bring strong and big centering materials from Bombay. However it was found that he was not success- fully able to execute the item of work as the vertical pressure of the sand was so much that there used to be land sliding and the work used to collapse with the result that the machinery brought for purposes of exca- vation and centering materials were completely buried and the son-in-law of the deceased-Contractor who was attending the works on behalf of the Contractor miraculously escaped. The deceased-Contractor adopted another method by using steel centering in the bottom but that also could not withstand the pressure of the sand and that centering also gave way which resulted in monetary loss to the Contractor. The authorities concerned therefore having realised the impossibility in execution of the said work instructed the Contractor to do open excavation with a width of 50 to 60 at the top as was done in similar work in the river-bed Narmada near Broach. The contractor carried out the work as instructed by the authorities by having open excavation of 50 of 60 at the top and as he was required to do excess quantity of work of excavation than what was originally estimated he claimed in his runn

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