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TMI Blog2021 (9) TMI 1548X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orks provisioned as per dpr 633835.33 15298.87 81438.22 0.00 25275.00 (b) Qty of Fmn works as per joint survey 356166.00 182073.00 337447.00 0.00 23123.00 The quantities as arrived at after joint survey are theoretical only and after completion of formation works Total station survey shall be carried out as per Clause 18 of Special Conditions of Contract to ascertain the actual quantity executed. Hence these quantities be treated as accurate, based on theoretical calculations. The classification of soils as shown in joint survey are based on visual appearance of soil strata. The actual classification of excavation shall be decided during execution by Engg in Charge and OC Contract as per clause 2.2.2 of Particular specification of CA at page no. 87 duly supported with photographs. The quantities of formation works as arrived at after joint survey between Km 26.800 and Km 47.850 as per details given at Appendix 'A' are recommended for execution of 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. The final quantity shall be arrived only after completions of format ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd under CA No. CE/VTK/03/2009-10. (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 ground under CA No. CE/VTK/03/2009-10. 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en permission from the Competent Authority on 28.1.2013, and in case any formation work was carried out, no payment shall be made after the report of the Board of Officers. 7. The Second in Command of the Unit sought approval of the Headquarters on 24.10.2013 after the joint survey of formation cutting was done by the Joint Survey Team. It is the said Joint Survey Report which was rejected by the Competent Authority at the Headquarter, when the following communication was addressed to the field office with a copy to the writ petitioner. The said communication of the Commissioner on 29.10.2013 reads as under: "Headquarters 763 Boarder Roads Task Force Pin-930763 C/O 99 APO 8001/715/EB 29 Oct 2013 117 RCC (GREF) PIN 9300117 C/O 99 APO CONSTRUCTION AND IMPROVEMENT OF ROAD LUMLA TASHIGONG FROM KM 26.800 TO 47.800 SINGLE LANE STANDARD UNDER PHASE 'A' OF SARDP INE IN TWANG DISTT OF ARUNACHAL PRADESH:CA NO. CE(P) VTK/03/2009-10 Refer your letter No. 804/vtk/03/2009-10/79 dated 24 Oct 2013. 2. The documents namely base plan, details of curves and quantity calculations and cross sections have been scrutinized and found that they are not in order. 3. Table 6.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve, it is submitted that each payment has been released to you as per claim based on joint measurement and duly accepted by you till finalization of the formations work as per clause No 18(vi) of special conditions of contract at serially page 72 of contract agreement. Hence any extra claim after fifteen months of completion of formation work is baseless not correct." 10. The writ petitioner communicated on 12.7.2013 that it would be bound to stop/abandon the project work and the responsibility shall be that of the department itself for projecting an indifferent attitude, if the department cannot pay the work done by it as has been claimed. It was also asserted that the department may take over the remaining work and complete it themselves. The amount claimed in the said letter was as under: Unseen expenditure done on works I Land slide clearance during rainy season Rs.2500000 x 4 years Rs.10000000/- II Earth filling on shoulders of the road without items on Boo Rs.3000000/- III Local villagers donation for smooth progress of the work Rs.50000000/- IV Bank Interest due to delay in payment (Ref RAR Bill) Rs.1200000/- V Total Rs.30000000/- 11. The writ petitioner su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Appendix 'A' to the Head Quarter vide letter dated 26.5.2015, it was noted as under: "6. From the above it is evident that "work claimed to have been executed" is much beyond "work ordered to the contractor". Moreover the "excess work claimed to have been executed" by the contractor has not been ordered by Accepting Officer or Commander of work or Officer Commanding or Engineer-in-Charge. 7. The "Joint Survey Report" on the basis of which contractor is asking additional payment has not been authenticated/admitted by the Chief Engineer(P) Vartak nor ordered by any authority. Therefore contractually contractor's claim cannot be admitted. 8. All payments correctly due to contractor have been already made." 13. The terms of reference of the Board of Officers were determined on 22.7.2015, with copy of the letter to the writ petitioner, as under: "3. Terms of References of the Board of Officers will be as under: (a) To carry out Joint Survey with Tetal Station from KM 26.800 to 47.852 on Lumla-Tashigong road. (b) To plot the Cross Section at suitable interval and Longitudinal Section with Corresponding RL. (c) To ascertain whether any extra work or account of Berm filin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um distance was to be measured from center line of carriage way and not from the edge of the roadway. Thus, the entire claim was based upon imaginary and arbitrary grounds which was enhanced from time to time. 17. Mr. Nataraj, learned ASG appearing for the appellants, pointed out that there are serious disputes about the facts in respect of authenticity of the Joint Final Report and the work done. Therefore, such disputed question of facts could not have been adjudicated by the Writ Court as disputed question of facts relating to recovery of money could not have been entertained thereunder. Reliance has been placed upon the judgment of this Court reported as Kerala State Electricity Board & Anr. v. Kurien E. Kalathil & Ors. [(2000) 6 SCC 293] wherein it was held as under: "10. We find that there is a merit in the first contention of Mr Raval. Learned counsel has rightly questioned the maintainability of the writ petition. The interpretation and implementation of a clause in a contract cannot be the subject-matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract. If a term of a contract is violated, ordinarily the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw in this aspect has developed through catena of judgments of this Court and from the reading of these judgments it would follow that in pure contractual matters the extraordinary remedy of writ under Article 226 or Article 32 of the Constitution cannot be invoked. However, in a limited sphere such remedies are available only when the non-Government contracting party is able to demonstrate that it is a public law remedy which such party seeks to invoke, in contradistinction to the private law remedy simpliciter under the contract. Some of the case law to bring home this cardinal principle is taken note of hereinafter. x xx x x 59. On the basis of these facts, this Court observed that the aforesaid observations of the High Court relyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceded which we have pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under certain circumstances, it can refuse to exercise. It also follows that under the following circumstances, "normally", the Court would not exercise such a discretion: 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 circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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