NHAI filed a belated appeal against a Tribunal's award and Single Judge's order, both challenging VARied rates for a drainage layer in a highway contract. The High Court found the delay unjustified without explanation, dismissed the appeal, and imposed costs of 50,000.
Appeal dismissed; NHAI directed to pay costs of 50,000.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 17.07.2018
..... Appellant Through: Sh. Narender Hooda, Sr. Advocate with Sh. Abhishek Kumar and Ms. Arushi Gupta, Advocates.
versus
M/S. PCL-STICCO (JV) ..... Respondent Through: Dr. Amit George, Sh. Rishabh Dheer, Sh. Swaroop George and Ms. Rajsree Ajay, Advocates.
CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE A.K. CHAWLA
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
%
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submission and the evidence on the record, by majority, that the NHAI’s denial of the contractor’s claim for 150 mm thick layer as GSB drainage layer called for a varied rate. Before the Tribunal, the claimant contended that neither at the stage of the bid nor at the stage when the contract was concluded was it ever disclosed in the BOQ whether the layer was intended to serve as drainage layer. It is urged by the claimant/contractor that much after the conclusion of contract which means that considerably after the bid had been accepted based upon the existing standards, the NHAI indicated in the Good for Construction drawing that a particular stretch or stretches were intended to serve as drainage layer(s). It was submitted that the BOQ clause in this regard, which was sought to be pressed into service by NHAI to say that the rates were inclusive, reads as follows:
“Where the layer is intended to serve as a drainage layer in addition to being a part of the structural pavement the material must satisfy drainage criteria. For such requirement, material passing sieve 2.36 mm and down should be as per Table 400.1.A.”
Claim No. I :
5.1 AT observes that BOQ item 3.01 covers complete work of GSB. The item's description in BOQ embodies reference to Grading 1 of Table 400.1 which conveys that bidding party had to quote keeping in view the contents of Grading I of Table 400.1, specifically referred in the BOQ and not any other table
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of grading. Although General Technical Specifications and Supplementary Technical Specifications and Amendments/ Modifications/Additions thereto are binding on Claimant but BOQ item 3.01 is for "Constructing Granular Subbase (GSB)using crushed stone aggregate only conforming to Grading I of Table 400-1 complete as per Drawing and Technical Specifications clause 401”.
No separate layers are indicated in item 3.01 of the BOQ. Therefore the contention of Respondent that gradation requirement of the GSB materials laid in two distinct layers with separate gradings is not correct.
Also contention of Respondent that clause 401 and Table 401.1A are integral part of the BOQ item 3.01 is not correct as Table 401.1A was introduced in "Good for construction drawing' after acceptance of the Contract.
Since BOQ item 3.01 refers to Table 400.1 only, the rate of Rs.540/- against this item can not be applied to both the specifications. Respondent has not included in the BOQ item Table 400.1A and thus the rate is not applicable to the specification of work done as per table 400.1 A.
Engineering practice contention relied upon by the Respondent is not relevant when specific gradation of aggregate as per Grading I of Table 400.1 has been specified in the BOQ item 3.01.
Stipulation in sub clause 1.1.4 of the Preamble to the Technical Specification will be relevant only in case of ambiguity in the description of BQQ vis-a-vis drawing but there is no such ambiguity. Similarly Sub-clause 5.2.1 regarding interpretation of ambiguities referred by Respondent is not applicable.
As such, a new rate needs to be derived in terms of the contract for the work done by Claimant as per table 400.1A for the lower layer of GSB. Claimant has claimed vide letter no. PCL/SJV/1502/2005 dated 18.1 1.2005 a rate of Rs.1102/- per
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Cu.m. based on the rate analysis enclosed. Further, rate analysis in support of Rs. 1102/- adopted for drainage layer (Ex C-12) was also submitted by Claimant vide Appendices 4 and 5 along with supporting documents. The Respondent, vide his letter no. NHA1/P1U/BAM/85/ORV11/20I0/714 dated 14-052010, submitted a rate of Rs.436/- per Cu.m. for GSB as per table 400.1 A and that too five years after receipt of the Claimant's rate analysis. The analysis submitted by the Respondent vide Annexure 3 to the letter dated 14-05-2010 is based on DPR, which is not forming part of the Contract. Hence the rate of Rs.436/- can not be taken as authentic.”
“28. Turning to the merits, a careful perusal of BOQ 3.01 reveals that it talks of GSB having to conform to Grade I of Table 400.1 and Clause 401 of the TS. BOQ Item 3.01 makes no mention of the GSB having a drainage layer. It is not possible to draw an 'inference' that the construction of a drainage layer of the GSB was deemed to form part of BOQ 3.01. Although learned counsel for the NHAI sought to argue that the drawing submitted at the prebid stage showed a separate drainage layer, this was denied by counsel for the Respondent. In fact NHAI was unable to make good such assertion even before the AT. The factual finding in this regard returned by the AT, and which
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has been unable to be shown to be erroneous by the NHAI, is that the requirement for construction of drainage layer was indicated only at the stage of submission by the NHAI of the 'good for construction' drawings. The deeming Clause 1.1.4 thus did not get attracted. The Court is unable to find any legal infirmity in the conclusion of the majority that the construction of the drainage layer of the GSB was a varied item of work which was not provided for in BOQ Item 3.01.”
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deemed to be part of the BOQ 3.01 was specifically in issue before the Tribunal and also considered consciously by the learned Single Judge. There is no per se error in the manner of consideration by the Tribunal which will be the only basis for interference by the Court. There does not appear to be any oral evidence whether in fact the said condition was an integral part of the contract. The NHAI does not seem to have produced any evidence to establish that such was the case even through the documents in the form of bid documents made available to the contract. Furthermore, the contractor appears to have led evidence in the form of copy of exhibit C-18. In the given circumstances being pure findings of fact, which this Court sitting in appeal over the order of learned Single Judge under Section 34 of the 1996 Act cannot interfere lightly.
3. That initially when the present matter was pending before the Ld.single Judge, the same was being monitored under the supervision of Project Implementation Unit (PIU) of National Highways Authority of India situated at Berhampur, Orissa, however, now the said PIU Berhampur has been abolished and the present matter has been transferred to PIU Bhubaneshwar. That owing to the change of PIU from existing to new PIU and exigencies of the departmental procedure in obtaining the requisite clearances for filing the appeal, and the actual process of having the appeal drawn up by panel advocates of the appeal, there has been a delay of 243 days in filing the present appeal.
4. That the delay in filing the present appeal is neither intentional nor deliberate nor caused by any default on the part
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of the Applicant authority but has been occasioned by reasons beyond the control of the Applicant as explained above.”
S. RAVINDRA BHAT (JUDGE)
A.K. CHAWLA (JUDGE)
JULY 17, 2018
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3 issues framed by the court
Whether the delay in filing the appeal by NHAI is condonable due to procedural changes and supervisory transfer.
Whether the learned Single Judge erred in setting aside the Tribunal's award regarding a varied drainage layer specification.
Whether the Appellant's appeal can be entertained given its belatedness without a plausible explanation.
1 provisions across 1 enactments
M/S. National Highways Authority of India
M/S. PCL-STICCO (JV)
S. Ravindra Bhat
A.K. Chawla
As recorded by the court registry
An appeal to a Division Bench against an order made by a single judge on the original side of the High Court.
Judgements on the same questions, provisions and authorities, from every court
