2021 (9) TMI 1548 - SC - Indian Laws

Disputed measurements and extra work claims - Rejection of Joint Survey Report - Division Bench of the High Court held that resurvey for measurement and DPR would not be just and fair at this stage since five monsoons had passed - approval of Detailed Project Report (DPR) and payment of pending bills - HELD THAT - The High Court has based its order on the ground that after five monsoons the final measurements could not be ascertained. If the final measurements could not be done at the spot the contemporary evidence and the measurement books prepared from time to time could be the basis for determining the liability of the appellants. The Joint Survey Report is not an admitted measurement though some officers might have signed it. The Report prepared after the completion of work wherein no such work done is reflected in the measurement book prepared during execution of work is an attempt to inflate the claim raised by the writ petitioner. The entire amount claimed by the writ petitioner is disputed. The dispute could not be raised by way of a writ petition on the disputed questions of fact. Though the jurisdiction of the High Court is wide but in respect of pure contractual matters in the field of private law having no statutory flavour are better adjudicated upon by the forum agreed to by the parties. The dispute as to whether the amount is payable or not and/or how much amount is payable are disputed questions of facts. There is no admission on the part of the appellants to infer that the amount stands crystallized. Therefore in the absence of any acceptance of Joint Survey Report by the competent authority no right would accrue to the writ petitioner only because measurements cannot be undertaken after passage of time. Maybe the resurvey cannot take place but the measurement books of the work executed from time to time would form a reasonable basis for assessing the amount due and payable to the writ petitioner but such process could be undertaken only by the agreed forum i.e. arbitration and not by the Writ Court as it does not have the expertise in respect of measurements or construction of roads. A perusal of the matter shows that collusion of some of the officers of the appellants with the contractor cannot be ruled out. Such collusion seems to be the basis of the writ petition filed before the High Court. It is deemed appropriate to allow the present appeal while dismissing the writ petition filed by the writ petitioner before the High Court.

Summary

Issues Involved:
1. Legitimacy of the Joint Final Report and its acceptance.
2. Appropriateness of adjudicating contractual disputes via writ petition.
3. Validity of the High Court's decision to avoid resurvey due to passage of time.

Summary:

1. Legitimacy of the Joint Final Report and its acceptance:
The Supreme Court examined the challenge to the order of the Gauhati High Court, which dismissed an intra-court appeal and affirmed the Single Bench's decision. The Single Bench had directed payment based on the Final Joint Survey/Measurement Report dated 24.10.2013. The Division Bench held that resurvey for measurement and DPR would not be just and fair since five monsoons had passed. The appellants were directed to approve the DPR and pay pending bills based on the Final Joint Survey/Measurement Report.

2. Appropriateness of adjudicating contractual disputes via writ petition:
The appellants argued that the writ petition was not maintainable due to serious disputes about the facts, including the authenticity of the Joint Final Report and the work done. They contended that such disputes should be resolved through arbitration as provided in the contract, not by the Writ Court. The Supreme Court agreed, citing precedents like *Kerala State Electricity Board & Anr. v. Kurien E. Kalathil & Ors.* and *Joshi Technologies International Inc v. Union of India & Ors.*, which emphasize that contractual disputes should be adjudicated by civil courts or arbitration, not through writ petitions.

3. Validity of the High Court's decision to avoid resurvey due to passage of time:
The Supreme Court found that the High Court's decision to avoid resurvey due to the passage of five monsoons was flawed. The Joint Survey Report was not an admitted measurement and appeared to be an attempt to inflate the claim. The Court noted that the measurement books prepared during the execution of work could form a reasonable basis for determining the liability. However, this process should be undertaken by the agreed forum, i.e., arbitration, not by the Writ Court.

Conclusion:
The Supreme Court allowed the appeal, dismissing the writ petition filed by the writ petitioner before the High Court. The Court emphasized that disputed questions of fact in contractual matters should be resolved through arbitration, not by the Writ Court.