DELHI DEVELOPMENT AUTHORITY Vs. TANTIA CONSTRUCTION COMPANY

JUDGEMENT

(1.) THIS appeal challenges the order of the learned Single Judge dated 08.03.1999, by which order the objections to the award dated 09.08.1996 were dismissed and the award was made a Rule of the Court. The order dated 30.08.1999 passed in this appeal stipulated that the arguments shall be confined to Claim Nos. 2, 3(C) and 3(D) and the item of escalation on Claim Nos. 2, 3(C) and 3(D) under Claim No. 7. It appears that the mention of Claim No. 3(D) was a typographical error in the order dated 30.8.1999, as there is no claim 3(D) awarded by the learned Arbitrator. There was Claim No. 3(d) made for "Reinforcement for RCC Walls - Rs. 7,71,050/ -", but this Claim was disallowed by the learned Arbitrator, and it has attained finality. All the aforesaid claims arose on a fundamental premise that the water level only upto a level of 210 mts stood accounted for under the contract and since the water level rose above 210 mts, the work executed by the contractor was entitled to be considered as work carried out in sub -soil for which payment should have been made as per Delhi Schedule of Rates (DSR), 1985. For this claim the respondent -claimant relied upon Clause 13 of the agreement. The learned Arbitrator has recorded as a finding of fact that the appellant had taken the level as per condition No. 27 (at page 89 of the agreement) and found the water level to be more than 210 mts which was also recorded. The details of claim Nos. 2, 3(c) and 7, in so far as they are relevant are as follows:

(2.) THE appellant had sought to rely upon Clause 73 of the agreement and on that basis had argued that the contractor/respondent was not entitled to claim anything extra over and above the rates provided in the schedule of quantities for execution of the work in or under water on account of pumping and bailing out of water by any method of lowering of sub -soil water level during the execution of work.

(3.) HAVING heard learned Counsel and given our due consideration, we are of the view that Clause 13 clearly shows that if the sub -soil water level rises upto 210 meters, no extra payment was to be made, but if it rose beyond 210 meters, then payments was to be made as per DSR 1985. Clause No. 13 reads as follows: