(1.)- This appeal by special leave has been filed against the judgment dated 27/03/1973 of the High Court of Delhi in F.A.0. (O.S.) No. 35 of 1968.
(2.)THE appellant, S. Harcharan Singh, was awarded a contract for constructing approaches to the Bridge Structure B-2 on the North Sikkim Road in 1959-60. Under the agreement the appellant was required to do hard rock cutting to the extent of 7,54,530 cft. THE rate fixed for the said work in the contract was Rs. 129 per thousand cft. plus 2 per cent. THE appellant was required to perform hard rock cutting to the extent of 18,18,704 eft. THE appellant claimed payment at the rate of Rs. 200.00 per thousand eft. for the additional work of hard rock cutting. He also claimed certain other sums under other heads. THE dispute in respect of four heads was referred to arbitration in accordance with Cl. 25 of the agreement. THE arbitrator gave his award dated 5/02/1965 wherein he disallowed the claim of the appellant in respect of two items but made an award in favour of the appellant in respect of two items of claim. In this appeal we are only concerned with the claim of the appellant in respect of the additional work of hard rock. cutting which the appellant was required to execute. THE arbitrator awarded a sum of Rs. 52,800/ against the said item. THE award was filed in the High Court by the arbitrator along with his letter dated 6/06/1968. Objections were filed by the respondent under Ss. 30 and 33 of the ARBITRATION AND CONCILIATION ACT, 1940 (hereinafter referred to as 'the Act'). THE said objections were considered by the learned single Judge of the Delhi High Court and by order dated 23/04/1969, the said objections of the respondent were rejected and it was ordered that the award be made a rule of the Court. THE respondent filed an appeal against the said order and decree passed by the learned single Judge. THE appeal was partly allowed by the Division Bench of the High Court by judgment dated 27/03/1973, whereby the award as regards the claim for higher remuneration at the rate of Rs. 200/ -per thousand eft. for the additional work of hard rock cutting was set aside. THE award in respect of other claim relating to expenditure incurred by the appellant in reconstructing the retaining walls after damage was maintained. Aggrieved by the said decision of the Division Bench of the High Court the appellant has filed this appeal after obtaining special leave.
As indicated earlier, this appeal is confined to the claim of the appellant for payment for the additional work of hard rock cutting which the appellant was required to execute. The appellant has claimed a higher rate of Rs. 200/ - per thousand cft. for this additional work. Under the agreement the appellant was required to execute hard rock cutting to the extent of 7,54,530 eft. but actually he was required to execute such cutting to the extent of 18.15 lacs cft. The extent of the additional work was about 10.60 lacs cft., i.e. about 140%. While undertaking the execution of the additional work of hard rock cutting the appellant in his letter dated 24/08/1960 addressed to the Executive Engineer, Central Division No. 11, Gangtok, had requested for revision of the rate for hard rock cutting and stated that the minimum working rates for this item are 52% above the tendered rates. The Executive Engineer by his letter dated 2/09/1960, requested the appellant to submit an analysis of rate for hard rock cutting. The appellant submitted his analysis of rates on 14/09/1960 wherein after analysing the rates of materials and labour the workable rate worked out to Rs. 200/ - per thousand cft. The Executive Engineer also got an analysis of rates done on the basis of the data collected on actual observation and he arrived at a figure of Rs. 237.00 per thousand cft. By his letter dated 9/11/1961 addressed to the Superintending Engineer, Calcutta Central Circle No. III, CPWD, Calcutta, the Executive Engineer recommended the extra rate of Rs. 200/ - per thousand eft. for work in excess of 20% of the stipulated quantity. The Superintending Engineer, in his letter dated 23/02/1962 addressed to the Additional Chief Engineer III Central P.W.D., New Delhi, made a similar recommendation and the Additional Chief Engineer made a similar recommendation in his letter dated 16/07/1962 addressed to the Secretary to the Government of India, Ministry of Works and Housing. It appears that the Government did not agree to pay at a rate in excess of the rate of Rs. 129.00 per thousand eft. plus 2% stipulated under the agreement. The dispute was, therefore, referred to. arbitration.
(3.)THE arbitrator in his award has considered this item of claim as under: