STATE OF HARYANA Vs. MARSHAL ENGINEER

JUDGEMENT

(1.) This order disposes of two connected appeals i.e. FAO Nos. 1082 and 1083 of 2007. As the controversy involved in both the cases is identical, therefore, the facts are being taken from FAO No. 1082 of 2007 for the purpose of adjudicating over the controversy.

(2.) The appellant-State of Haryana (herein referred as the appellant) invited tenders for the work of 'Rehabilitation of Main Drain No. 2 consisting of clearance and bank strengthening from RD 139000 to 83130. The tender submitted by respondent M/s. Marshal Engineers therein referred as the respondent) being lowest one are accepted. The tender was for the excavation of the earth from "the bed of the drain and to put the same on its banks. The cost of the work to be executed was Rs. 1,11,14,668.00. The work was to be completed within a period of six months, i.e. between 20.12.2000 to 19.2.2001, but it could be completed on 28.6.2001. The agreement in this regard was executed between the parties on 14.12.2000. As per bank measurement, the earth work for strengthening of banks executed by the respondent was 601673 cum and on further measurement, it was found that earth available for cutting was 523929 cum. In terms of the agreement, it was agreed that the measurement for the excavation of earth will be made on the basis of cross-sections observed at 100 feet interval after completion of the work as per designed specifications and 10% allowance for shrinkage shall be deducted while measuring disposed earth and payment shall be made for rest of the quantity of excavation and disposal. The appellant relying upon the said clause paid the respondent only for the earth available from cutting i.e., 523929 cum. Therefore, a dispute arose between the parties. The respondent demanded payment as per the terms of the agreement i.e., for earth work measuring 601673 cum, which was found as per bank measurement.

(3.) While the intervention of the Court, Sh. M.P. Vachher, Chief Engineer (Retd.) Irrigation Department, Government of Haryana (respondent No. 2) was appointed as sole Arbitrator for adjudication of the dispute between the parties. The plan set up by the respondent before the Arbitrator was that there was heavy abnormal and inconsistent water supply in the drain and he was asked to work with a heavy discharge of about 900 cases against the normal discharge of 100 to 1000 cusec which was not only difficult, but impossible with the equipments planned as per terms of the agreement and on account of release of excessive water exact measurement; cross-section of work could not be recorded. The respondent further contended that due to heavy silting of drain extra resources were deployed by desilting of drain at many places without payment of any extra costs for the same and that he used excavators, tractors and dozers for excavating the earth for its compaction after laying and spreading on the banks of drain, leaving no scope for shrinkage. In nutshell, it was submitted by the respondent that the earth found on the bank of drain was not the only earth available for cutting, but also the silt on account of extra flow of water in the drain including back flow which resulted in silting of drain and the work was executed with the help of machinery, which made the earth on the banks compact.