K P POULOSE Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS is an appeal by special leave against the judgment of the Kerala High Court Setting aside the judgment of the Subordinate Judge, Ernakulam and restoring the award of the Arbitrator who had earlier refused the claim of the appellant.

(2.) THE appellant (briefly the contractor) was a successful tenderer for construction of three zonal R.C.C. Overhead Reservoirs, two in Mattancherry and one in Cochin, in connection with the Ernakulam Mattancherry Water Supply Scheme. In the schedule annexed to the notification inviting tenders under the heading 'Site' it was stated that " the soil at the site for Reservoir No.1 and Reservoir No. 2 is loose clay and for Reservoir No. 3, sandy". 'THE tenders was to execute an agreement on a stamped paper before commencing work. It appears later on the Kerala Engineering Research Institute, Peechi, Soil Mechanics and Foundation Division (briefly the Research Institute) submitted a report (Ext. P. 19 dated 14/09/1965) that the sub-soil at the three places chosen as sites for the reservoirs up to 16 m. showed that the top soil was sand, the middle layer clay, and the bottom layer, silty sand or sand. It was stated that the clay found at the three places was of a highly compressible nature and hence pile foundation was preferable and that as the top strata was sandy jetting had to be resorted to for driving the piles through this strata. After receipt of the opinion of the Research Institute, respondent No. 2 ( herein after to be described as the Department ) gave instructions to the contractor to adopt the process of jetting for driving piles for the tank at Thoppumpady which is alone in dispute in this case. On 7/10/1965, the Chief Engineer after scrutinising the pile design of the contractor wrote to him, inter alia, as follows:

(3.) WE have been taken through all the relevant documents by the learned counsel for both sides and we are satisfied that Ext. P. 11 and Ext. P.16 are material, document to arrive at a just and fair decision to resolve the controversy between the Department and the contractor. In the background of the controversy in this case even if the Department did not produce these documents before the Arbitrator it was incumbent upon him to get hold of all the relevant documents including Exts. P. 11 and P. 16 for the purpose of a just decision. Ext. P.11 dated 8/09/1966, is a communication from the Superintending Engineer to the Chief Engineer with regard to the objections raised by Audit in connection with the construction of the reservoirs. The following extract will explain the position then taken by the Department: