GROVER,J. - (1.) This is an appeal by certificate from a judgment of the Orissa High Court relating to an award given by Shri A. V. Viswanatha Sastri an Ex-Judge of the Madras High Court in a dispute which arose between the respondent and the Union of India in respect of a claim made by the former for a sum of Rs. 35, 45, 080.91 which was stated to be due for earth work done on the right dyke of the Hirakud Dam.
(2.) The Chief Engineer, Hirakud Dam, invited tenders on behalf of the Union of India for execution of work specifying certain details as to how tender, were to he submitted. It appears that before the tenders were invited certain estimates were prepared in the office of the Chief Engineer. The intending contractors were to submit tenders stating the rate for depositing earth on the Right Dyke site including all lifts and leads. The respondent company submitted a tender which, according to the Chief Engineer, was not in the form invited by him as certain extraneous matters were stated to have been introduced. The Chief Engineer and the representatives of the respondent company held a conference at which certain agreements were arrived at. The tender of the contractor was provisionally accepted on December 28, 1951; the formal contract was executed much later on March 21, 1953. The work started in February 1952 and took four years for completion. The earthwork was done by the company by manual labour for a year in the beginning and thereafter it was done to a large extent by machinery. The earth required to erect the dyke was dug up from certain areas demarcated by the Engineering Department near the site of the dyke. The places from which the earth had to be taken were called "borrow pits" or "borrow areas". The company dug up earth from the "borrow pits" and dumped it on the site of the dyke upto the required specifications. This involved movement of the loose earth both vertically and horizontally from the borrow pit to the dyke. The vertical movement was styled as "lift" and the horizontal movement as "lead". When the company started employing the heavy machinery from the beginning of 1953 onwards a number of ramps had to be constructed to enable the machinery to go up from the borrow pits to the dyke.It has not been disputed that for the earthwork done by the company it received payment from the Government of an amount aggregating Rs. 1, 08, 19, 543.00. This amount was paid in accordance with the rate in item I-A of the contract (Ext. P-69). According to that rate Rs. 45/- were to be paid for 100 cubic feet of earthwork of all kinds of soil laid in 6" layers with rough dressing including all lifts and average lead not exceeding. 10". According to the company an additional sum of Rs. 26, 20, 798.75 was due in addition to the amount already paid in respect of extra leads including lifts. An amount of Rs. 2 lakhs was claimed on account of the construction of ramps. The company further claimed a sum of Rs. 5, 34, 282-16 on account of interest on the aforesaid two amounts. This claim was disputed by the Union of India and it was maintained on its behalf that the company had been fully paid for the earthwork done by it according to the terms of the contract and that the company was not entitled to payment for lifts nor was there any occasion for leads in excess of an average of tO and further that the ramps in so far as they were outside the dyke were not to be paid for while those which had been incorporated in the dyke had already been paid for as a part of the dyke. The agreement by which reference was made to the arbitrator was as follows:- "The disputes and difference between the parties relating to payment of lift equivalent and leads for machine route are referred to the arbitration of Shri A. V. Viswanatha Sastri, retired High Court Judge, Madras and his award shall be final and binding on the parties."
(3.) On November 16, 1958 the following issues were framed by he Arbitrator by the consent of both the parties (i) Is the claimant entitled to any payment for lifts under the terms 'of the contract between the parties ?NOTE: Both sides agree that I foot of lifts is equal to 12-2-1/2 feet of lead. (ii) Whether the claimant is entitled to payment for machine leads where machines have been used for earthwork and if so, on what basis and at what rates? (iii)Whether in the case of machine leads, lifts are not taken into account as pleaded by the Union of India ? (iv) Whether the claimant is entitled to the cost incurred in putting tip the ramps ? (v) Is the Union of India estopped from denying liability for payment of lifts and machine leads for the reasons stated in paragraphs 1 1 to 14 of the Statement Claim of Ramlinga Construction Co. (P) Ltd. ? (vi) Is the claimant entitled to interest for the period during which the-amounts payable to the claimant remained unpaid by the Government, if so. at what rate .? (vii)What is the amount due to the claimant from the Union of India ?" A good deal of oral and documentary evidence was led by both the parties before the arbitrator. After discussing the same he came to the following conclusions:-- 1.The tender must be taken to have been made and accepted on the basis that the whole work was to be done by manual labour. 2.According to the terms of the contract if the averaee lead of IO had to be exceeded the orders of the Chief Engineer in writing had to be obtained by the contractor and then the extra lead was to be paid for at the rate of Rs. 1.12 As. per 1000 cubic feet. The company did raise the question of payment for lifts as early as December 30, 1952 and sought the orders of the Chief Engineer in writing for the extra lead resulting from the conversion of lifts into leads but the Chief Engineer never made any order in writing. The arbitrator believed the evidence of the Chief Engineer Shri kanwar Sain that he passed no orders allowing the company an extension of lead beyond the average 10. As the obtaining of the written order of the Chief Engineer was an essential condition which had to be complied with before. a claim for extra lead could be made the company was not entitled to payment for the extra leads beyond the average 10.(3)The letter Ext. P-6 dated March 30, 1953 which was signed by the Superintending Engineer for the Chief Engineer had not been proved to have been written either under the instructions of the Chief Engineer or approved by him. In this letter it was stated, inter alia, that the words "average 10 leads mentioned in the special conditions of the agreement include the initial lead and lift and all other lifts between the borrow area and the Dyke". The Chief Engineer's evidence relating to Ext. P-6 was believed. ;