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1996 Supreme(MP) 778
1997 (2) JLJ 312
S.K. Dubey and Shjlmbhoo Singh, JJ.
Mahavir Construction Co. (M/s.) v. State of M.P. and others
Civil Revision No. 89 of 1990; against the order of M.P. Arbitration Tribunal, Bhopal, passed in reference case No. 55 of 1987; Decided on 3.9.1996.
K.P. Munshi for applicant; Alok Aradhe for non-applicants.
Headnote:(1) Tender -- work contract -- Item No. A-1 -- excavation of soiln includes lead and lift. AIR 1989 SC 1834 followed. [Para 11]
(2) Government -- not bound by unauthorised acts of the subordinate officers. (1991) 1 SCC 761 followed. AIR 1973 Raj. 223 relied on. (1978) 1 SCC 443 distinguished. [Para 17
(3) Estoppel -- promissory estoppel -- party asserting should have relied and it must have changed the position. AIR 1987 SC 2415 followed. [Para 19]
(4) Contract Act, 1872 -- S. 70 -- no case pleaded attracting provision under -- no arguments can be heard in revision n question is mixed question of facts and law. [Para 21
(5) Contract Act, 1872 -- S. 70 -- applicability -- provision applies when contract is invalid or void. AIR 1962 SC 779 and 1968 JLJ 1025 (SC) followed. [Para 21]
(6) Madhyastham Adhikaran Adhiniyam, 1983 (M.P.) -- S. 12 -- Tribunal is a Court -- has power to put Court questions to the witnesses to find out the truth. [Para 24]
(7) Tribunal -- should be fair, impartial and honest in performing its duties n strict judicial standard should be adopted by it. (1993) 2 SCC 654 followed. [Para 25]
(8) Justice -- should not only be done -- it should also appear to have been done. . [Para 25]
(9) Contract -- Court always has power to strike down arbitrary, unjust, unfair and unreasonable contract. (1986) 3 SCC 156 followed. [Para 26]
(10) Madhyastham Adhikaran Adhiniyam, 1983 (M.P.) -- S. 19 - revision under -- jurisdiction of High Court is limited -- powers of appellate Court cannot be exercised -- findings of facts neither perverse nor illegal -cannot be interfered with even if different view is possible. [Para 29]
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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 1.11.89 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 25.1.84, 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 24.6.84 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 24.6.84 addressed to Superintending Engineer alongwith tender documents which contained certain conditons but this letter was withdrawn unconditionally by a letter Ex. P/2-A dated 17.7.84. The tender of the petitioner being low was accepted on 29.1.85, the intimation of which was given to the petitioner by Executive Engineer vide his letter Ex. P/5 dated 22.2.85. A contract agreement No. 1/D-1 of 84-85 (Article 'O') was executed on 15.3.85. The work order was issued on 15.3.85. 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 24.8.85 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 30.6.87 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 24.6.84 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-4A dated 17.7.84. 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 assurance to the petitioner that soil would be available in free lead area. The inter se correspondence between the Departmental Officer also confirmed this assumption. Acting on such assurances and represnetations, 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 alongwith 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 a
