LAWS(MPH)-2007-3-138

VIJAY BHANDARI Vs. NAGAR PALIK NIGAM AND OTHERS

Decided On March 15, 2007
Vijay Bhandari Appellant
V/S
Nagar Palik Nigam And Others Respondents

JUDGEMENT

(1.) THIS revision has been preferred by the petitioner Shri Vijay Bhandari calling in question the illegality of an award dt.20 -9 -2005 passed by the M.P. Arbitration Tribunal, Bhopal in Case No. 79/1997.

(2.) PURSUANT to the NIT floated by the respondents a contract was given to the petitioner for construction of commercial and residential complex at Prakash Chauraha, Rewa. It was a rate contract that the tender was accepted at 3.86 % above S.O.R. Period of completion was two years. Work order was issued and date of completion was 13 -9 -1997. Petitioner submitted that clear site was not provided. Complete drawings, design and sufficient fund were not available with the Corporation. Though contract was given by Town Improvement Trust, it was abolished and taken over by Corporation. There were certain quarters occupied by PWD employees. The position of trees was such that without cutting them complete lay out could not have been given. Petitioner relying on the bona fides of the respondents had deployed labour for digging pits. The petitioner has collected about 125 MT of steel, cost of which was Rs. 18,75,000/ -. The respondents sanctioned secured advance on steel and a bill amounting to Rs. 15,45,412/ - was prepared on 15 -1 -1996. Out of this Rs. 10,00,000/ - were paid. The work could not be carried out after digging the pits. The petitioner remained on site on 24th and 25th April, 1996, the subordinate of the respondents tried to give lay out and measure the work -site but they found lot of variation in the drawings and in the site. Partial lay out was given on 27th, 28th and 29th May, 1996. It was not possible to carry on construction work as clear site was not provided. The claim was raised under the head of balance costs of steel, payment of work done but not paid, escalation, interest, loss of profit, loss of overhead, refund of security amount and cost of tube -well, total Rs. 34,87,744/ -. The petitioner submitted his claims to the final authority for the first time on 25 -4 -1997 and subsequently on 24 -10 -1997. No decision was taken.

(3.) THE stand of the respondents was that the Public Works Department's work -shop at the site had already been shifted to the new location. The site had been vacated by the Public Works Department and was available for clearing by the petitioner who was required to do dismantling of the structures as part of the contract. Jungle clearance and removal of trees was also to be done by the petitioner. Major portion of the area of the site had already been cleared by dismantling the sheds by the petitioner who had been entrusted with the work and rest was in his possession including the buildings which he was retaining for his own use as stores and office. Petitioner failed to carry out the work in spite of fulfilling the obligation on the part of the respondents. The excavation of pits after laying R.C.C. foundation was also paid in the first running account bill prepared on 4 -11 -1995 which shows that the petitioner was already provided lay out for the RCC footings and columns and he had done excavation before laying concrete for RCC foundations. The work was executed under a self generated scheme hence the funds were bound to come. They had already paid a sum of Rs. 16,23,196/ -to the petitioner from their own resources apart from spending Rs. 40,00,000/ -on the construction of work -shop and Rs. 7.5 lakhs on the construction of flats provided to the Public Works Department in lieu of existing work -shop complex taken over from them. Thus, the respondents had invested more than Rs. 65 lakhs on the scheme and paid the fees of architect to the tune of Rs. 2,00,000/. Further funds were being created by auction of shops and residential flats which were to be constructed under the scheme. There was abandonment of the work by the petitioner. He removed the material also though an amount of advance was paid. He had removed 50% steel for which secured advance to the tune of Rs. 11.16 lakhs had already been received by him. Removal was made in the month of August, 1996. Thus, he had no intention to work after receiving mobilization advance and payment of running bills which were submitted.