Nafr High Court
Case Details
1 ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.02.03 10:47:21 +0530 2025:CGHC:5654 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CR No. 152 of 2017 M/s. Radheshyam Agrawal, A Partnership Firm Represented Through Its Partner Mr. Sanjay Agarwal, Aged About 43 Years, S/o. Shri Radheshyam Agrawal, R/o. Sarvoday Nagar, Heerpur Road, Tatibandh, Raipur, Chhattisgarh. ... Petitioner versus 1 - State Of Chhattisgarh, Through The Secretary, Water Resources Department, Raipur, Chhattisgarh. 2 - The Executive Engineer, Water Management Division No.1, Raipur, District : Raipur, Chhattisgarh ... Respondents (Cause Title taken from Case Information System) For Petitioner
Legal Reasoning
: Mr. Ashok Mishra, Advocate For Respondents : Mr. Rahul Tamaskar, Govt. Advocate Hon'ble Shri Justice Sanjay K. Agrawal Order On Board 2 30.01.2025 1. This revision petition preferred under Section 19 of the Chhattisgarh Madhyastham Adhikaran Adhiniyam, 1983 is directed against the impugned award dated 04.07.2017 passed by the Chhattisgarh Madhyastham Adhikaran, Raipur, by which the petitioner's reference petition has been dismissed finding no merit. 2. The agreement was entered into and executed between the petitioner and respondent No.2 for construction of Dulna Diversion weir in Mahanadi river by constructing concrete weir with diaphragm walls 0.60 M depth in hard rock wings protection works, providing and fixing of 77 Nos. vertical lifting gates, along with construction of R.C.C. barrel 600 M length with canal head regulator, afflux and guide bunds on both sides of river banks and other appurtenant, a work order was awarded to the contractor, accepted rate of contract was 61.45 Crores, work order was No.1189 was issued on 27.02.2009, stipulated period for completion of work was 30 months including rainy season, however, the work was completed on 09.03.2013 by extending the stipulated period twice at the request of the contractor. After the completion of the work, the petitioner filed a reference petition stating inter alia that he has suffered loss 3 of Rs. 6.5 Lakh towards loss of profit, loss of overhead expenses and financial loss towards the rental of plants and machines and also claimed Rs. 2.5 Lakh for using 4 Lacs bags of extra cement, which was disputed by the respondents by filing reply stating that the petitioner has failed to prove the loss of profit, loss of overhead expenses, financial loss towards rental of plants and machinery and further has also failed to file the vouchers showing purchase of 4 Lakh bags of cement and non-filing of documents with regard to transportation of 4 Lakh bags of cement and, as such, the petitioner is not entitled for any claim. 3. Learned Tribunal, after appreciating the oral and documentary evidence on record, has rejected the claim of the petitioner as he has failed to prove the aforesaid claim No.1 to 5 and rejected the reference petition against which this civil revision under Section 19 of the Chhattisgarh Madhyastham Adhikaran Adhiniyam, 1983 has been preferred. 4. Mr. A.K.Mishra, learned counsel for the petitioner, submits that the Tribunal has absolutely unjustified in rejecting the claim No.1 to 5 by recording a finding which is perverse to the record and, as such, the impugned award passed by 4 learned Tribunal is liable to be set aside by awarding a claim of Rs. 10 Lacs to the petitioner. 5. Mr. Rahul Tamaskar, learned State counsel, would support the impugned award and submit that the finding recorded with regard to claim No.1 to 5 is a finding of fact based on evidence available on record, which is neither perverse nor contrary to the record, therefore, the revision is liable to be dismissed. 6. 7. I have heard learned counsel for the parties, considered their rival submissions and went through the records with utmost circumspection. The claim No.2, 3 & 4 by petitioner with regard to loss of profit, loss of over head expenses, financial loss towards rental of plants & machinery were made, as there was delay of 19 months in execution of work for which the department is responsible. The Tribunal after considering the oral and documentary evidence on record clearly came to the finding that for delay in execution of work, the department is not solely responsible and held in paragraph 12 as under : "12. The petitioner has not come up with a stand that, entire land or work site was not made available to him. On the contrary upon perusal of the documents filed by the petitioner which are Ex.P6, Ex.P13, Ex.P15, Ex.P16, 5 Ex.P21 & Ex.P24 reveal that, only the land where right and left bund was to be constructed, the owners of the land had raised objection. Ex.P16 shows that land for construction of right bund was made available to the petitioner but, he could not execute the work on account of rains and the land was not approachable due to rain. Thus, it is not a case that, entire land was not provided to the petitioner. It is pertinent to mention there that, the stipulated period was extended by the respondents at the request made by the contractor without imposing penalty upon him. So it cannot be held that the respondents had willfully or negligently caused delay. Whatever, delay was caused was beyond the control or was not under the control of either party. In fact, from the documents filed by the petitioner, mentioned above, go to show that, the petitioner had been executing the work. Work was not stopped by the respondents, so as to, the petitioner could claim the determination of contract on account of stoppage of work by the respondents. Under these circumstances, the respondents cannot be held solely responsible for the delay. It is therefore, petitioner is not entitled to get the amount claimed under the claim No.2, 3, & 4. 8. The finding so recorded that the State is not solely responsible for 19 months' delay in execution of work is a correct finding of fact based on evidence available on record, which is neither perverse nor contrary to the record and therefore, I do not find any perversity in the aforesaid finding recorded by the Tribunal. 9. Similarly with regard to claim No.1 by which the petitioner was directed to use 250 Kg/cm2 bags of cement for 6 executing the concreting work in place of 100 kg/cm2 and therefore the contractor/petitioner used 4 Lakh bags of extra cement amounting to Rs.10 Crores, for which the Tribunal has clearly recording a finding in para 15 & 16 that the petitioner has neither produced any bill, voucher & receipt of purchasing 4 Lakh bags of cement nor filed any document with regard to transportation of 4 Lakh bags of cement. Paragraph 15 & 16 of the impugned award is reproduced as under : "15. The petitioner has not filed any bill, voucher, receipt of purchasing 4 Lacs bags of cement nor has filed any documents with regard to transportation of 4 Lacs bags of cement from the point of purchase to the site. 16. The petitioner has also not filed any oral and documentary evidence with regard to use and consumption of extra cement of 4 Lacs bags. It is a matter of utter surprise that a person who can buy and use cement of Rs. 10 Crores would simply relinquish a huge amount to Rs. 9,97,50,000/- only on the ground that he is not capable of paying requisite court fee on 10 Crores, which goes to show that, the pleadings and claims on this count is hypothetical. We do not find any evidence to hold that, the petitioner had consumed extra 4 Lacs bags of cement in addition to what amount was required. It would also be noteworthy to mention here that, the petitioner did not try to get a written order for using such a huge amount of cement and he spent Rs.10 Crores only on the basis of verbal instructions of the site engineer, without bringing it to the 7 knowledge of higher authorities or without recording his objection in this regard, as according to him as per the contract agreement he was required to execute the work by using 100 kg/cm2 ." 10. The aforesaid finding recorded by the Tribunal that the petitioner has failed to prove the purchase and transportation of extra cements which are used in construction of work is correct finding of fact based on evidence available on record and consequently, the claim No.5 with regard to interest is concerned has rightly been rejected. As such, I do not find any merit in this revision and accordingly, it is dismissed. No cost(s). Ashok Sd/- (Sanjay K. Agrawal) Judge