P L D 1973 Supreme Court 577 (PLP)

Unit n. exc. 25 yards n. exc mile. Each Subsequent mile. C. Rs. Rs. Rs. Transport material or spoil by any means up to total distance not exceeding 5 miles. (Rate Column No.1 will not be paid in addition to Column Nos. 2 or 3 excluding load or unload. Cft. 0.38 1.88 0.84 Amended schedule of rates Item No.20 Schedule page

43. Unit Ordinary soil. Hard soil. Conglomerate etc. Rock not requiring Blasting. Hard stratified Rock requiring Blasting. Hard rock requiring blasting when blasting is prohibited and the excavation is done by chisels. Excavate in any position. Including up to 5 ft. Lift and throw aside or remove a distance not exceeding yards and deposit where directed including forming bottom surface to required level and slope. C. C.ft. Rs. 1.29 Rs. 1.99 Rs. 2.71 Rs. 5.95 Rs. 17.29 Rs. 31.25 Item No. 30 Distance Unit n. exc. 25 yards n. exc mile. Each Subsequent mile. C. Rs. Rs. Rs. Transport material or spoil by any means up to total distance not exceeding 5 miles. (Rate Column No.1 will not be paid in addition to Column Nos. 2 or 3 excluding load or unload. Cft. 0.38 1.18 A 0.84 "A" Applicable up to 18‑10‑54 from 19‑10‑54, rates for Item (3) shall be paid as on page

48. So far as item No. 20 is concerned it remains the same in both the schedules, and there is no dispute about it. The dispute is over item No. 30 only. A comparative examination of item 30 in the two schedules reveals the fact that the amended item 30 merely avoided the double payment for the same work included in item

20. Item 20 already allowed payment for excavation and removal of debris or spoil to a distance not exceeding 25 yards, and item 30 (un-amended) again included their transport from the initial stage including the 1st 25 yards from the pit. The amended item 30 which came into operation on and from the 19th October 1954, provided that Re. 0.38 for the initial 25 yards already included under item 20 shall be deducted. This position was clarified by the Chief Engineer, P. W. L, N: W. F. P. in his aforesaid memo. Dated the 19th of October 1954, and the plaintiffs were expected to know this before putting in their tender. The notice inviting tenders Exh. D. A. appearing at page 189 of the paper‑book, among others, states as follows:‑ "

11. The contractors will be required to tender percentage rate above or below the rates given in the N. F. P., P. W. D. Schedule rates 1950 corrected up to date separately for (1) Earth work (2) Masonary work.'

12. The successful tenders will be required to execute agreement of P. W. D. form 7‑A subject to all amendments up to the date of this tender." Thus the plaintiffs have no excuse whatsoever not to have apprised themselves of the prevalent rates at which they submitted the tender, and subsequently started the work. In the tender form submitted by the plaintiffs on the 24th of April 1958, as well as in the formal contract executed on the 12th August 1959, ft has been clearly mentioned: "at par with schedule rates for earth work and at 65 % above for masonary work of the N‑W. F. P. schedule of rates 1950 corrected up to 24‑4‑1958". Both these documents show that the plaintiffs very well knew what the schedule rates were on the 24th of April 1958, when they submitted their tender, and that they accepted these rates. Any subsequent change in the schedule of rates brought about subsequently would obviously be not applicable to the plaintiffs in respect of their present contract. In this connection it is important to find as to when the contracts between the parties came into existence. Admittedly, the plaintiffs submitted the tender on the 24th of April 1958, and they commenced the work in respect of the tender on the 1st of June 1958. The record shows that the tender was accepted by Mr. Alau Din Khan, Deputy Chief Engineer, Peshawar, on the 10th of May 1958. In the absence of any clear evidence as to when this acceptance was transmitted to the plaintiffs it is legitimate to infer that they must have received the communica tion on or before the 1st of June 1958, to enable them to start the work on the 1st of June 1958. The mere fact that the plaintiffs delayed in executing the formal contract till the 12th of August 1959, does not alter the fact that the actual contract between the parties came into existence as soon as the tender was of accepted by the Deputy Chief Engineer and it was put in transmission to the plaintiffs. This fact receives support from the formal contract it self which mentions the date of commence ment of work as 1‑6‑1958. It is thus clear that the plaintiff were not only fully aware of the rate which existed on the date when they put in the tender on the 12th April 1958, but also that they submitted the tender fully accepting the rates as then existing. The old rate of 1950 was amended on the 19th of October 1954, and they remained operative until the 9th of March 1959, when the old rates were restored. I, therefore, do not think that there is any substance in this contention. Similarly I do not find any force in the second contention inasmuch as the Government decisions referred to in this contention had all been made since the coming into existence of the present contract between the parties and the work thereunder had been executed, and they therefore have no retrospective application to the aforesaid work of the plaintiff's. The con troversy about the rates that raged during this period between the various departments originally arose in connection with the Grow More Food Construction. But not until the 26th of March 1964, was it confirmed that the orders of the Government Issued on the interpretation of the various items of the Exh. N.W. F. P. schedule of rates of 1950 from time to time were of general application and did not relate to one specific work. It has farther decided that for all contracts entered into after the 9th of March 1959, and before the introduction of the new schedule for earth work a flat lead as given in the Exh. N.W. F. P. Schedule of rates of 1950 would be given (vide Exh. Via. 14 at page 182 of the paper‑book). But this must be read with Exh. D‑1, a letter dated the 22nd of July 1963, addressed by Mr. S. I. Haque, Additional Chief Secretary (Development) to the Government of West Pakistan, Lahore to Mr. A. R. Niazi, Secretary to the Government of West Pakistan, Irrigation Power Development, Lahore (appearing at page 147 of the paper book), which, inter alia, stated that the payments would be made and recoveries effected in respect of the work already done strictly in accordance with the contract agreement in force and that for these purposes the following three con siderations would be material: (i) The language of the individual contract agreement. (ii) The actual date on which it was executed. (iii) The then prevalent interpretation of item

30. Thus the governing factor in regard to work already executed under a contract is the language of the individual contract, and this is perfectly In accordance with the law of contract. This position was not and could not be affected by Exh. D‑

14. Be C that as it may any gratuitous concession in this respect by the Department concerned in favour of the contractors at any particular point of time after the work under the contract had already been executed, is not legally enforceable in a Court of Law, either by way of admission estoppel or otherwise. The third contention, however, is of substance. On the 9th of March 1959, the schedule of rates of the 19th of October 1954, was repealed by the Provincial Government with the result that the old rates in the schedule of 1950 applied to the plaintiffs D in respect of work executed by them in addition to those mentioned in the contract in question and executed after the 9th of March 1959. This is evident from Exhs. D. 8 and D. 9 Bead with Exh. D.

14. The relevant contents of Exh. D. 14 have already been mentioned. Relevant extracts from Exh. D. 8 and the entire memorandum as contained In Exh. D. 9 are given as follows: ‑ Exh. D. 8: "

4. After a thorough consideration of the case the Governor of West Pakistan Is pleased to order that following rates will be applicable during each of the periods mentioned above. (1) Period prior to 19‑10‑54 Basic rates of excavation for leads up to 25 yards may be paid according to the Item 20 of the Exh. N. W. F. P. Schedule of rates. For leads more than 25 yards, extra charge for the additional lead may be worked out in accordance with item 20 of the Exh. N. W. F. P. Schedule of rates as it stood before the amendment of Chief Engineer of Exh. N. W. F. P. to this item vide his No. 19939‑PW of 19‑10‑54 in calculating the extra charges for the additional lead beyond the basic 25 yards lead, no deduction of rates in column (i) of item 30 will be made. (ii) Period from 19‑10‑54 to 8‑3‑59 Basic rates of excavation for leads upon 25 yards may be paid according to the item 20 of Exh. N: W. F. P. Schedule of rate. For leads more than 25 yards, extra charges for the additional lead may be worked out in accordance with item 30 of the Exh. N: W. F. P. Schedule of rates as it stood amended vide Chief Engineer of Exh. N. W. F. P. No. 19938‑P W of 19‑10‑

54. On this basis in calculating the extra charges for the additional lead beyond the basic 25 yards lead, deduction of rates in column (i) of item 30 will be made in accordance with the foot note under the above amendment to item 30. (iii) Period after 9.3‑1959 same as per item (i) above: Exh. D. 9: "From The Secy. to Govt. of West Pakistan, Irrigation, Communication & Works Department, Lahore. To The Chief Engineer, Irrigation, West Pakistan, Lahore. Memo No. 5‑12‑/SO. VIII(I)59, dated 8‑1‑1962. Subject:‑Advance para of inspection report of Grow More Construction Division Nowshera. Reference: Your Memo No. WOI/61/3271/1026/58, dated 22‑12‑61 on the subject noted above. Memorandum: The following may be substituted for para. 4(ii) of this department memo. No even number dated 28‑11‑61 period from 19‑10‑54 to 8‑3‑59 Basic rates of excavation for leads up to 25 yards may be paid according to item 20 of Exh. N: W. F. P. Schedule of rates. For leads more than 25 yards extra charges for additional lead may be worked out in accordance with the rates in columns II and III of item 30 but making a deduction of Re. 0.38 as contained in column 1 thereof. (Sd) A. U. Khan, For Secy. To Govt of West Pak And Communication and Works Lahore No. 5‑12/SOVIII(I)/59, dated Lahore 8‑1‑1962 Copy forwarded to the Director Audit and Accounts (Works) West Pakistan, Lahore for information and necessary action. Copy forwarded for information to : - (1) Section Officer, Dev. (Works) Govt. of West Pak. F. D. (2) Deputy Chief Engineer, Peshawar Region, Peshawar. (3) Supdt. Engineer, Central Irrigation Circle, Peshawar. (4) Superintending Engineer, Southern Irrg. Circle, Bannu. (5) Superintending Engineer. Northern Irrg. Circle, Mardan, (Sd.) A. U. Khan, For Secy. to Govt. of West Pak. and Communication and Works Lahore." It seems to me reasonable that the additional work executed, by the plaintiffs which is not covered by the contract in question should not be governed by the terms of that contract. The Government themselves appear to have realised the justice of the contractors' grievances that the cost of the work had increased since the operation of the contract and they should therefore be, paid at the old rate of 1950. Although this originally applied to the Grow More Food Construction, but having regard to the fact that the work was of similar nature the Government had made this applicable to Warsak Dam Construction work also. In my opinion it is only fair that the Government should be considered bound by their decisions as contained in Exh. D. 8, Exh. D. 9 and Exh. D. 14, so far as the additional work executed by the plaintiffs since the 9th of March 1959, is concerned. I would, accordingly, allow this appeal and modify the impugned order of the High Court to this extent only that for the work executed by the plaintiffs after the 9th March 1959, they are entitled to receive payment in accordance with the schedule of rates of 1950 as it stood before the amendment of the 19th of October 1954. Having regard to the partial success of the parties they will bear their own costs. HAMOODUR RAHMAN, C. J‑I agree. ANWARUL HAQ, J‑I agree. MUHAMMAD GUL, J‑I agree. K.B.A. Appeal accepted.