HEMANT GUPTA, J. - (1.) THE challenge in the present revision petition is to the order passed by the learned first Appellate Court on 5.1.1996, whereby the award awarding an amount of Rs. 5,02,150/- by the Arbitrator under Item No. 4 i.e. claim for cleaning of silt and bailing out water from the wells before the plugging of concrete wells, was set aside.
(2.) THE petitioner was granted a contract for constructing Acquaduct Crossing Outfall Drain No. 8, Gurgaon Water Supply. One of the conditions of the work order was that payment against any item not covered by the above items, shall be made as per the approval of the competent authority. The petitioner has raised a claim of Rs. 7,28,640/- against item No. 4 i.e. claim for cleaning of silt and bailing out of water from the wells before the plunging of concrete in wells. The learned Arbitrator gave the award of Rs. 5,02,150/- by recording the following reasons :- "Item No. 4 : Claim for cleaning of silt and bailing out water from the wells before plugging of concrete in wells. Amount claimed : Rs. 7,28,640/- A reference to Haryana P.W.D. Schedule of Rates indicates that under para No. 21.12 cleaning of silt from wells is a separate item apart from wet sinking of wells and is payable per cubic metre of the volume cleared inside the well. A perusal was made of the tender documents of some works of similar nature as below and it is seen that this item is provided as a separate item other than well-sinking. (i) V.R. Bridge at RD 26500 of Buriya Nallah (Construction No. 33, Faridabad). Estimate sanctioned vide Chief Engineer/Construction, Irrigation Deptt. Haryana No. 1440/Const. Dated 23.2.95. Item of cleaning of silt in wells provided at Sr. No. 26. (ii) Construction of Acquaduct at RD 10840 metre of supplementary drain across Delhi Tail Distributary the item of "cleaning of silt from wells including bailing out water" is provided at Sr. No. 43 of tender documents. The petitioner has also submitted copy of an agreement for this item of work with a sub-contractor Sh. Safed Khan for an aggregate amount of Rs. 4,15,000/-. It is, therefore, clear that this item has been omitted in the N.I.T./Estimate/Work order and actual work done is payable to the petitioner. In the absence of any specific estimated/contracted quantity, the amount claimed by the petitioner cannot be awarded in full. Amount awarded in favour of the petitioner = Amount of sub- contracted with reasonable profit and overhead expenses = Rs. 5,02,150/-".
(3.) THE respondent has filed objections against the said award inter-alia alleging that the amount of Rs. 5,02,150/- could not be awarded as the contract agreement specifically included bailing out of water in the main work i.e. excavation of well. Though the learned trial Court made the award as Rule of the Court but the learned Appellate Authority found that the amount awarded against Item No. 4 could not be made Rule of the Court as the Arbitrator has acted beyond the terms of the agreement.;