STATE OF GUJARAT Vs. SHIRINBAI PIROJSHAH WADIA

JUDGEMENT

(1.) This appeal by the State Government is directed against the judgment and decree of the Civil Judge (S.D.) Baroda in Special Civil Suit No. 72 of 1968 ordering the State Government to pay a sum of Rs. 78 747 paise with costs on the entire suit amount and with running interest at six per cent on the principal amount of Rs. 59 0 21 paise from the date of the suit till realisation and granting a permanent injunction restraining the State Government or its officers servants or agents from recovering or adjusting the amount of Rs. 25 0 claimed by the State Government as an excess payment to the deceased-contractor Shri P.P.Wadia. A few facts need be stated so as to appreciate the dispute involved in this appeal.

(2.) The Executive Engineers Public Health in Public Works Department of the State of Gujarat had invited tenders for Dabhoi Water Supply Scheme. The tender filed by the deceased-contractor bearing No. B-24 of 1958 was accepted by the State Government as it was lowest. The estimated cost of the works in question was Rs.3 7 440 the quotation of the aforesaid Contractor for execution of the said works was Rs. 2 82 557 The contract works consisted of constructing infiltra- tion wells inspection chambers jack-well with circular pump from connect- ing porous pipe line and constructing staff-quarters aqua privy etc. at Head works site and R. C. C. Tank in the town of Dabhoi near Municipal Garden. The contract document in respect of the aforesaid works was executed by and between the parties on 30th June 1958 The works com- menced on 27th November 1958 One of the items of works was laying down porous pipes in the bed of river Orsand near Dabhoi town by doing excavation and refilling the trenches in which pipes were to be laid down. This item of work had to be executed in the river-bed where there was a lot of sand. Since the river was stormy and the bed was sandy at the site of the work it was not possible to execute the work of laying porous pipes by excavation as required under the suit contract. The deceased- Contractor therefore brought this fact to the notice of the executive Engineer as well as the Deputy Engineer in charge of the works. The Contractor asked for the instructions from the Executive Engineer as to how he should proceed in execution of the works in view of the difficult nature of the item of work due to peculiar site condition. In the initial stages the Executive Engineer could not decide and therefore could not give instructions as to how the deceased-Contractor should proceed with the work. The contractor therefore was left with no alternative but to start laying pipes in the 10 feet wide excavation made at the top as required under the contract. The Contractor had therefore to bring strong and big centering materials from Bombay. However it was found that he was not success- fully able to execute the item of work as the vertical pressure of the sand was so much that there used to be land sliding and the work used to collapse with the result that the machinery brought for purposes of exca- vation and centering materials were completely buried and the son-in-law of the deceased-Contractor who was attending the works on behalf of the Contractor miraculously escaped. The deceased-Contractor adopted another method by using steel centering in the bottom but that also could not withstand the pressure of the sand and that centering also gave way which resulted in monetary loss to the Contractor. The authorities concerned therefore having realised the impossibility in execution of the said work instructed the Contractor to do open excavation with a width of 50 to 60 at the top as was done in similar work in the river-bed Narmada near Broach. The contractor carried out the work as instructed by the authorities by having open excavation of 50 of 60 at the top and as he was required to do excess quantity of work of excavation than what was originally estimated he claimed in his running bills for the excess quantity of work done at the tender rate for the item of excavation as agreed in items Nos. 1 2 3 and 7 of the Bill of gurrantities attached to the suit contract. The Contractor was paid for the excess quantity of work at the tender rate upto 10th running bill but thereafter the authorities refused to pay for the excess quantity at the tender rate. The contract work was completed somewhere on 31st August 1962. The deceased-Contractor did not prefer the final bill as required under the contract document within one month of the comple- tion of the works. The Executive Engineer as well did not prepare the final bill as he was entitled to do under the contract document. It appears that the Executive Engineer was of the opinion that this was the excess work done by the deceased-Contractor of the item of excavation and that therefore the Contractor was entitled to recover the additional amount for the excess quantity at the contract rate. The Higher Authorities could not decide this question of additional claim of the Contractor for the work of excess quantity of the item of excavation. However somewhere in November 1963 the Under Secretary to the Government of Gujarat in Public Works Department way of the opinion that the excavation quantities recorded in the Measurement Books were as per open excava- tion with slopes and not as prescribed under the respective items in the contract document and it would therefore be necessary to pay for this excess quantity at such reduced rates by which no extra expenditure was incurred to the Government. He therefore requested the Superintending Engineer to work out rates for these quantities in such a way so as not to increase the cost with no consequent loss to the Government. The Contractor Shri P. P. Wadia died somewhere in 1966. It appears that the Executive Engineer by his letter of 6th March 1968 informed the daughter of the deceased-Contractor that the final bill for the works in question had been prepared by the Deputy Engineer Sub-Division Baroda which was under scrutiny in his office and the said bill however revealed that the deceased-Contractor was made excess payment of Rs. 25 0 She was therefore requested to repay the said amount in cash in the office so as to enable the Executive Engineer to adjust it finally and in case of her default to do so within a fortnight of the receipt of the letter she was informed that the same would be adjusted against the amount of security deposit of the works in question and other works of the deceased-Contractor with the Department and for the short-fall if any it would be recovered as arrear of land revenue from the properties of the Contractor. In view of this letter the widow and daughter of the deceased-Contractor who were his heirs and legal representatives served a statutory notice as required under sec. 80 of the Civil Procedure Code on the State Government making a total claim of Rs. 1 0 225 paise consisting of different amounts due and payable by the State Gover- nment to the deceased-Contractor by the letter of their advocate of 30th March 1968 As the State Government failed to comply with the demand made in the aforesaid notice the respondents-plaintiffs filed the suit in the Court of Civil Judge (S. D.) Baroda praying for a decree for a sum of Rs. 88 120 paise as made up of the following amounts and for permanent injunction restraining the Government from adjusting the alleged excess payment of Rs. 25000.00 against the amount of security deposit and/ or from recovering it as arrear of public revenue. The amounts which have been claimed in the suit are as under: Rs.21,590-14 Being the amount of difference payable for the excess quantity of work of the item of excavation. Rs.4,000-00 Being the amount of damages for the loss caused as a result of collapse of centering material due to faulty specifications of the Department. Rs.3,000-00 Being the amount of extra item of dewatering which the Contractor was required to do as a result of the open excavation instructed to be done by the authorities. Rs.18,251-00 Being the amount of security deposit to be refunded. Rs.19,200-00 Being the balance price remaining unpaid for the work done. Rs.22,080-00 Being the amount of interest by way of damages at the rate of 6 per cent per annum for Years 5-9 months.

(3.) The suit was resisted by the State Government by its written state- ment Ex. 15 contending inter alia that the suit was beyond the period of limitation; the statutory notice was neither valid nor legal and the decision of the Under Secretary awarding reduced rates for the changed item of work was final and binding and that the payments made under the running bills for the excess quantities at the contract rate were in nature of advances and in view of the decision of the Under Secretary to give reduced rates the State Government was entitled to recover Rs. 25000.00 paid its excess to the Contractor by adjusting against the security deposit and/or by way of arrear of public revenue.