AB MAJID MIR Vs. EXECUTIVE ENGINEER

JUDGEMENT

(1.) THE petitioner is a contractor. He was allotted a contract for the execution of works by the respondent for laying of deck slabs over two nallahs namely Bhella nallah and Shibnote nallah bridges in Km 63 and Km 66 NH1B road. As per the agreement the petitioner was to be paid 160% above the advertised rates in the NIT No. 8 of April 1984. The petitioner claimed that for the additions and alteration in the work with reference to the original allotment/agreement the respondent -Department was required to make payment as per the sanctioned schedule of 1981 plus agreed tender appreciation of 160% above. The estimated cost of the work as per the tender notice was of the order of Rs.60000/ -. The petitioner claimed for involvement of slab height of more than ten meters from the nallah bed -base, utilization of crushed aggregate from Batote crusher to site of work and as per the claim he had not been paid for the actual work done for various items. The petitioner claimed payment of Rs.18,26,543.94P from the respondents. As the claim of the petitioner was not accepted by the respondents the petitioner moved a petition seeking appointment of the arbitrator in this Court and this court in AA No. 305/89 by order dated 23.1.1991 appointed the Chief Engineer PWD(R&B) Jammu as Arbitrator for adjudication of the disputes occurring between the parties and for passing the award within the statutory period of four months. Pursuant to the directions of this court the Arbitrator entered the reference and published his award on 31.5.2000 by allowing some items as stated in the award. The award was filed before this court and this court vide order -dated 31.7.2000 directed for issuance of notice to both the parties. The petitioner contractor was served on 6.11.2000. On behalf of the respondents objections were filed U/S 30/33 Arb.Act for challenging the award. The petitioner did not file any objections to the award.

(2.) IN the objections to the award the State pleaded that the work pertaining to construction of two bridges, Batote Kishtwar National Highway was allotted to the petitioner in the year 1986 -77 and thereafter the petitioner commenced the work and received payments from time to time and the final cash voucher No. 88 -89 of February 1987 under which the final payment of the work done] by the petitioner on both the bridges was accepted in February 19187. The petitioner thereby accepted the measurements contained in the measurement book and the matter thus came to be concluded. However the Arbitrator, according to the respondents allowed the claims of the petitioner without any basis and contrary to the spirit of the agreement as also the report of the Commissioner and factual position. As per the stand taken by the respondents the Arbitrator misconducted himself in the proceedings as he has passed the award contrary to the material placed on record and without appreciating the stand taken by the respondents. In the objections entitlement of the petitioner to his various claims has also been factually challenged.

(3.) FROM the pleadings of the parties following issues were framed for adjudication on 26.12.2001 and the State was directed to lead evidence by way of affidavits/record: -