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SUPREME COURT OF INDIA
HEMANT GUPTA, A.S. BOPANNA, JJ.
Union of India & Ors. - Appellants
Versus
M/s Puna Hinda - Respondent
Civil Appeal No. 4981 of 2021 (Arising out of SLP (Civil) No. 11882 of 2018)
Decided On : 06-09-2021
Government Contract – Payment – Execution of work order – High Court has based its order on the ground that after five monsoons, final measurements could not be ascertained – If final measurements could not be done at spot, contemporary evidence and measurement books prepared from time to time could be basis for determining liability of appellants – Dispute could not be raised by way of a writ petition on disputed questions of fact – Though, jurisdiction of High Court is wide but in respect of pure contractual matters in field of private law, having no statutory flavour, are better adjudicated upon by forum agreed to by parties – Dispute as to whether amount is payable or not and/or how much amount is payable are disputed questions of facts – There is no admission on part of appellants to infer that amount stands crystallized – In absence of any acceptance of Joint Survey Report by competent authority, no right would accrue to writ petitioner only because measurements cannot be undertaken after passage of time – Maybe, resurvey cannot take place but measurement books of work executed from time to time would form a reasonable basis for assessing amount due and payable to writ petitioner, but such process could be undertaken only by agreed forum i.e., arbitration and not by Writ Court as it does not have expertise in respect of measurements or construction of roads – Matter shows that collusion of some of officers of appellants with contractor cannot be ruled out – Such collusion seems to be basis of writ petition filed before High Court – Writ petition filed by writ petitioner before High Court dismissed. (Paras 23, 24, 25 and 26)
Facts of the case:
Challenge in the present appeal is to an order dated 17.11.2017 passed by the Division Bench of Gauhati High Court dismissing an intra-court appeal and affirming the order passed by Single Bench on 4.8.2016. Single Bench of the High Court allowed the writ petition filed by respondent – M/s. Puna Hinda1 who had sought quashing of letters dated 27.8.2015 and 21.10.2015 and also a direction to pay Rs. 31,57,16,134/- with interest at the rate of 18% p.a.
Findings of Court:
Joint Survey Report is not an admitted measurement, though some officers might have signed it. 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 writ petitioner. The entire amount claimed by the writ petitioner is disputed.
Result : Appeal allowed.
JUDGMENT :
HEMANT GUPTA, J.
1. The challenge in the present appeal is to an order dated 17.11.2017 passed by the Division Bench of the Gauhati High Court dismissing an intra-court appeal and affirming the order passed by the learned Single Bench on 4.8.2016.
2. The learned Single Bench of the High Court allowed the writ petition filed by the respondent – M/s. Puna Hinda,1[Hereinafter referred to as the ‘writ petitioner’] who had sought quashing of letters dated 27.8.2015 and 21.10.2015 and also a direction to pay Rs.31,57,16,134/- with interest at the rate of 18% p.a.
3. The learned Single Judge held that payment in terms of Final Joint Survey/Measurement Report dated 24.10.2013 be taken into consideration for making revised Detailed Project Report (DPR) and thus passed necessary orders for payment of the amount due to the writ petitioner within four months of the receipt of copy of the order. In an appeal filed by the appellants, the Division Bench of the High Court held that resurvey for measurement and DPR would not be just and fair at this stage since five monsoons had passed. Therefore, the only option left to the appellants was to approve the DPR and pay the pending bills on the basis of Final Joint Survey/Measurement Report dated 24.10.2013.
4. Brief facts leading to the present appeal is that a Notice Inviting Tender (NIT) was issued on 22.10.2008 for construction and improvement of road from 26.800 km to 47.850 km between Lumla and Tashigong under Special Accelerated Rural Development Programme (SARDP). The bid of the writ petitioner was accepted at Rs.31,87,58,950/-. The work order was issued on 15.7.2009. The said work order was amended by the parties on 15.3.2012 leading to enhanced work cost at Rs. 35,03,15,695.23. The work order had provided details of the work to be carried out and the estimated amount payable for each work with rate of each work. The work was divided into three parts, such as, Formation work, which included jungle clearance etc.; Permanent work which included excavation in trenches, cement concrete; and Surface work which included preparation of sub-grade in soil mix boulder, laying, spreading and compacting graded stone aggregate. The measurement process for payment was specified in the General Conditions of Contract, which read as under:
2.8.2 At the option of the Engineer-In-Charge/QC Contract, the Contractor shall leave depth indicators during excavations of such shape and size and in such positions as directed so as to indicates the originals ground level as accurately as possible. The Contractor shall see that there remain intact till the final measurements are taken.”
5. The contractor completed the formation work by 20.9.2012, the communication of which was sent by the writ petitioner on 17.10.2012. The joint survey of the works was carried out by the Board of Officers on 23.1.2013. The Board of officers made the following recommendations:-
20. The details of items of formation works provisioned (as per DPR), executed departmentally and balance between Km 26.800 and Km 31.00 are as under:
xx xx xx
21. The details of items of formation works provisioned in DPR and as arrived at after detailed Joint Survey from Km 31.000 to Km 47.850 are as under :
| Location | In SMB (cum) | In SR (cum) | In HR (cum) | Embankment filing (cum) | Jungle Clearance (10 Sq m) |
| Km 31.000-Km 47.850 | |||||
| (a) Qty of Fmn works provisioned | |||||
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