Orissa
Hydro Power Corpn. Ltd Vs. Santwant Singh Gill & Ors [2006] Insc 443 (24 July 2006)
Arijit
Pasayat & Lokeshwar Singh Panta
(Arising
out of SLP (C) No. 17187 of 2003) With CIVIL APPEAL NO 3114 OF 2006 (Arising
out of SLP ( C ) No. 16439 OF 2003) ARIJIT PASAYAT, J.
Leave
granted.
The
appeal arising out of SLP(C) No.17187 of 2003 is directed against the judgment
rendered by a Division Bench of the Orissa High Court in the First Appeal. The
appeal relating to SLP (C) No. 16439 of 2003 is against the order passed on a
review application filed by the appellant relating to the connected first
appeal.
The
factual background in a nutshell is as follows :
An
agreement bearing No. 21F2 of 1984-85 was executed between the original
respondent Santwant Singh Gill (who has died in the mean time and is
represented by his legal representatives) and the Executive Engineer, Indravati
Dam Division for construction of Concrete-cum-Masonry work of the Indravati Dam
of Block No. 18 upto RI 625.5. Stipulated dates of commencement of work and
completion of work were 2.2.1985 and 1.5.1985 respectively. Since the
respondent did not complete the work and did not participate in the
measurement, by letter dated 6.1.1986 the respondent was asked to accept the
final measurements of the work done by him. Subsequently the work was assigned
to another contractor. A writ petition was filed by the respondent questioning
the decision. High Court disposed of the matter directing the authorities to
consider the grievances. In September, 1986 the respondent filed a suit in the
Court of Subordinate Judge, Jeypore being Money Suit No. 417 of 1986 claiming a
sum of Rs.8,93,659.91/- with pendente-lite and future interest @ 18% per annum.
The defendants in the said suit who are respondents No.2 to 4, herein i.e.
State of Orissa, the General Manager, Upper Indravati
Project and the Executive Engineer, Indravati Dam Division filed written
statement denying the claim, except for a sum of Rs.94,006.40/- and prayed for
dismissal of the suit. The admitted amount was paid in November, 1987. The suit
was decreed on 20th
March, 1991 for
Rs.7,03,375.29/- along with pendente- lite interest at the rate of 12% and
future interest at the rate of 9% p.a. on the principal amount of
Rs.6,51,077.29/-.
The
respondents No.2 to 4 filed an appeal before the High Court which was
dismissed. Pursuant to the enforcement of the Orissa Electricity Reforms Act,
1995 and Orissa Electricity Reforms (Transfer of undertaking, assets,
liabilities, proceeding and personnel) Schemes Rules, 1997 framed thereunder,
the Upper Indravati Hydro Electric Project alongwith all its circles and
Divisions with all assets and liabilities was transferred by the State
Government to the appellant with effect from 1.4.1996. Since the appellant was
not a party in the First Appeal, prayer for permission to file SLP was made and
has been granted, and that is how the appeals have been filed. As noted above
the High Court dismissed the First Appeal and the application for review filed
by the appellant was rejected by the High Court on the ground that no case for
review was made out. At this juncture it is to be noted that certain stands
which were not highlighted in the First Appeal were sought to be introduced by
the appellant in the review petition.
Learned
counsel for the appellant-Corporation submitted that basically two issues were
considered by the High Court.
They
related to
-
whether any
extra work was undertaken by the respondent and
-
whether damage
on account of idle labour was payable. State's stand was that Clause 11 of the
Agreement clearly indicated that M-150 is purely an extra item and as such the
plaintiff i.e. present respondent would be entitled to receive payment as per
schedule of rate of 1982.
The
High Court proceeded on the basis that though the work in question is not
stipulated in the agreement, it was known to the parties concerned that there
was a change in the design and as given in the drawing (Exhibit N), the
execution of M 150 grade concrete work was necessary. This according to learned
counsel for the appellant runs counter to the observation of the High Court.
The stand of the respondent before the courts below was that the Executive
Engineer had assured payment as per agreement for M-200 grade concrete work for
which the agreement was executed and the work had commenced. As there was no
official communication in that regard, the respondent informed the Executive
Engineer to allow him to commence the work and confirm the arrangement.
Learned
counsel for the appellant further submitted that it has not been established
that any assurance was given.
Even
if it is conceded for the sake of argument that any assurance was given, the
same is clearly unauthorized and in any event the respondent himself accepted
that this was an extra item of work and that the schedule of rates applicable
in 1982 were applicable. Strong reliance was placed in this regard on a letter
purported to have been written on 30.9.1985 by the respondent.
The
other item awarded which was questioned related to payment for idle labour. It
was submitted that the time period for completion of work expired on 1.5.1985
and even if the claim of the respondent that there was extension up to 2.7.1985
is accepted, the courts below were not justified in granting compensation for
idle labour up to 6.1.1986. It is submitted that the High Court has not given
practically any reason, to uphold the award in respect of these items. So far
as the first item is concerned, the High Court merely observed as follows:
"In
view of what has been stated above, we are inclined to concur with the finding
of the learned trial Judge that the plaintiff is entitled to be paid for the
M-150 grade concrete work at the rate for M-200 grade concrete work."
Similarly, it was submitted that in regard to the claim relating to idle labour
the High Court did not even consider as to the period by which the work was to
be completed. If no extension of time was granted beyond 2.8.1985 which
according to the courts below was the last date by which the work was to be
completed, the appellant could not have been directed to make payment for a
period
-
from 26.2.1985
to 13.4.1985 and
-
from 3.7.1985 to
6.1.1986.
In
response, learned counsel for the respondents submitted that both the trial
court and the High Court have analysed the factual position and have worked out
the entitlement of the respondents and there is no infirmity so as to warrant
any interference.
We
find that several relevant factors have not been considered by the High Court;
for example the effect of the letter purported to have been written by the
respondent- Santwant Singh Gill. The relevant portion reads as follows :
"In
the meantime, due to change in design, I was asked to do plain concrete in
place of masonry. This item of work was not contemplated in my agreement.
However, I have done the plain concrete at the schedule of rate."
(Underlined for emphasis) The High Court has not made any effort to find out as
to whether the work in question was extra work was and/or covered by agreement.
If it was covered by the agreement, the question of assurance, if any, given as
claimed is inconsequential. If it was a part of agreement it was to be covered
by the rate stipulated. In that event there is no question of any assurance
having any role to play. This aspect has also not been considered by the High
Court.
Additionally,
as rightly pointed out by the learned counsel for the appellant, if work was to
be completed by 2.8.1985 as claimed by the respondents, the question of any
payment being made for idle work beyond the said date does not arise. This
aspect was also required to be analysed by the High Court which has not been
done.
In the
fitness of nature, therefore, the High Court should re-examine the matter on
the aforesaid two aspects and decide the matter in accordance with law.
So far
as the connected appeal is concerned we find that the High Court rightly held
that a case of review was not made out on the grounds apart from those which we
have dealt with in the connected appeal. Since the basic issues relating to
alleged grievances were not placed for considered before the High Court earlier
there was no scope for entertaining a review petition. The High Court had
therefore rightly rejected the review petition. The said appeal stands
dismissed.
As
noted above in the appeal relating to the First Appeal before the High Court
basic issues are to be examined and, therefore, the re-consideration is to be
limited to the two issues indicated above.
The
appeals are accordingly disposed of. No costs.
Back
