1. SALAHUDDIN AHMED, J.-This appeal, by special leave, is from the judgment and decree of a Division Bench of the then High Court of West Pakistan, Peshawar Seat, allowing the respondents' appeal in part and modifying the judgment and, decree of the trial Court in favour of the plaintiff's- appellants.
2. Leave was granted to consider as to whether the appellants were entitled to receive payment for the work executed in pur--suance of their contract at the original rate of 1950 or on the basis of the amended rate of 1954.
3. Appellants Nos. 1 (a) to 1(k) are the successors-in-interest of one Abdul Munaf. Abdul Munaf and appellant No. 2 Taj Muhammad were plaintiffs in the suit out of which has arisen this appeal. On the 24th of April 1958, tenders were invited for the execution of works "Construction of Warsak High Level. Canals-RD-25000 to RD-101000" and "Super Passage RD-122800" with estimated costs of Rs.
4. 10,00,000 and Rs. 53,00D respectively. In response to this invitation Abdul Munaf and Taj Muhammad (appellant No. 2) submitted the tender on the 24th of April 1956, which being the lowest was accepted on the 10th of May 1958. Although it does not appear when the acceptance was communicated to them, it is undisputed that the plaintiffs started the work on the 1st of June 1958. The formal written contract was, however, executed on the 12th of August 1959 and it specifically stated that the work had commenced on the 1st of June 1958. Both in the tender submitted on the 24th of April 1958, and in the formal contract dated the 12th of August 1959, it was stipulated that the rates were to be the schedule rates of 1950 of the old. N.W.F.P. As corrected up to the 24th April 1958. The work was required to be completed within a period of eighteen months, i.e., by the 31st of November 1959. The plaintiffs worked uptill the 31st of November 1959, but on their application they were allowed to continue the work even up to the 31st of December 1961. In the meantime, some differences over the rates arose between the parties and the appellants abandoned the work in October 1961. The plaintiffs stated that they had done the work beyond the 1st of December 1959, on the understanding that they would be paid at the enhanced rate, i.e., at the rate obtaining before item 30 was amended on the 19th of October 1954. .
5. The work done by the plaintiffs was regularly measured on the borrow-pit method by the department concerned and they were paid regularly on 15 running bills. The P. W. D., N. W.F.P adopted the schedule rates of tae M.E.S. And the 1950 edition of the P. W. D., N.W.F.P. Schedule.
6. According to the plain--tiffs, as item No. 30 of the schedule of the latter presented some difficulties in its working, the Chief Engineer. Irrigation Department, P. W. D., N: W.F.P. Amended the item on the 19th of October 1954, resulting in the reduction of the rate.
7. A question arose about the rate at which the contractors should be paid in respect of their contracts for Pehur Grow More Food Construction Division, Nowshera, for the work before and after the 19th of October 1954, namely, the date when the new rates under item No, 30 had come into force. The Government after having consulted its law and other relevant departments decided that the said contractors were entitled to payment accord--ing to the rates of the un-amended schedule and that no recovery of any overpayment was to be made from them as recommended by the Audit Department. (Vide Government letter dated the 9th of March 1959). As a result of this order since the work executed by the plaintiffs was of a similar nature, their bills, too, were prepared at the un-amended rates and they received payments can them to the extent of Rs. 3,92,256.
8. Subsequently, on a reference made by the Director of Audit and Accounts, the Government after consultation with the law and other connected departments prepared a working paper (Exh. D 7).
9. His working paper was considered by a committee of various departments on the 31st of May 1961.
10. (Exh D. 6). The committee made certain recommendations regarding payment for contracts entered into before the 19th of October 1954, and after the 8th of March 1959, and in between these two dates. On the basis of the recommendations of the committee the Government issued instructions that for tae period 19-10-1954 to 9-3-1959, the payments for lead under section 30 of the N.W.F.P., schedule 1950 would be made according to the amend--ment issued by the Chief Engineer and Secretary, P. W. D., N.W.F.P., vide his No. 19938-PW dated the 19th of October 1954, read along with the foot note on page 48. These instructions were forwarded by the Additional Chief Secretary, Deve--lopment Department, to the Secretary to the Government, Irrigation Department, on the 22nd of July 1963 (vide Exh. D. W. 1/9), and finally they were forwarded to the Chief Engineer, Irrigation, Peshawar, who sent them to the Superintend--ing Engineer, Central Irrigation Circle, Peshawar (vide Annexure Exh. D. 10 dated the 12th of August 1963, at page 197 of the paper book).
11. As the plaintiffs had stopped their work in October 1961, their security and earnest money were also forfeited. The plain--tiffs refused to pay the excess demanded of them, and the department, therefore, also withheld their bills for the work which they had done for the department in connection with some other contracts.
12. The plaintiffs accordingly instituted the present suit on the 8th of February 1964, against the defendants-respondents before the Civil Judge, First Class, Peshawar, for a declaration to the effect that the order of the defendants forfeiting the security and the earnest money of the plaintiffs was illegal, ultra vires, void and inoperative. They also prayed for the recovery of Rs.
13. 4,98,116.75 on account of security and earnest money, and the amount of withheld bills. They further prayed for a perma--nent injunction restraining the defendants from withholding their bills and from carrying out the measurements afresh or the back-fill method.
14. The defendants contested the suit and, inter alia, contended that the plaintiffs had put in a tender for the work or the schedule rates of 1950 as corrected up to the date of the tender, Le., the 24th of April 1958, when the progressive lead rates were applicable, and that the cancellation of 1954 amendment on the 9th of March 1959, did not in any way alter this position. The defendants admitted that according to the fresh orders of the Secretary to the Government of West Pakistan, Irrigation and Power Department, the security deposit of the plaintiffs was to be returned.
15. The learned Civil Judge decreed the suit in full and, inter alia, held that the plaintiffs were entitled to its. 1,98,993.75 on account of their security and eruct money, and Rs. 2,99,123 on account of their withheld bills and that no fresh measurement on back-fill method could be allowed.
16. The defendants preferred an appeal before the then High Court of West Pakistan, Peshawar Seat, and it was partially allowed as already stated. The High Court observed that so far as the forfeiture of the security and earnest money was concerned, the learned Additional Advocate-General admitted that the Government haw or dare that the security deposit and the earnest money of the plaintiff's should not be forfeited, and that thus there was no dispute left on that point. Only two points were argued before the High Court and they were, firstly, whether the defend--ants were entitled to carry out the measurement afresh on the back-fill method, and, secondly, whether the plaintiffs were entitl--ed to payment for the work done at the amended or un-amended schedule of rates of the old N.W.F.P.
17. As regards the first point, the learned Judges of the High Court held that the measurement already carried out during then continuance of the work on borrow-pit method was perfectly correct and the plaintiff's were entitled to receive payment on the basis of this measurement, and that the defendants were not entitled to carry out a fresh measurement on the back-fill method. We may state here that so far as this point is concerned we leave it here as neither any leave was granted to consider this point nor has any contention been advanced against this finding of the High Court.
18. As regards the second point, the High Court held that the plaintiffs were entitled to payment at the rate prevalent on the 24th of April 1958, and not at the un-amended rates prevailing before the 19th of October 1954. The High Court accordingly modified the trial Court decree and granted the plaintiffs a decree for the recovery Rs. 1,98,993.75 being the amount of security and earnest money, and also, inter alia, declared that the plaintiffs were entitled to receive payment at the amended rates, which were prevalent on the 24th April 1958.
19. It has been contended before us, firstly, that the aforesaid amendment made by the Chief Engineer was merely an interpre--tation anti clarification of the old schedule of 1950, and that the schedule of the 19th of October 1954, was not a new schedule in itself. Consequently it is the duty of the Court to give its on interpretation of the schedule of 1950 uninfluenced by any Interpretation put by the various committees concerned. Second--ly, at any rate the Government was bound by its decisions as contained in Exh. D. 8 dated the 28th of November 1961, Exh. D. 9 dated the 1st of August 1962, and Exh. D. 14 dated the 26th of March 1964, and therefore the plaintiffs were entitled to receive payment at the un-amended rate; and, thirdly, that assuming that the amendment or the clarification made on the 19th October 1954, was itself a new schedule of rates holding the field, the plaintiffs were entitled to receive payment of their bills for the work done after the 9th of March 1959, in accordance with the schedule of 1950, as it stood before the said amendment of the 19th of October 1954.
20. As regards the first contention the relevant documents put on record unerringly lead to the conclusion that the aforesaid amend--ment of the 19th of October 1954, constituted the corrected schedule of rates. A copy of the memorandum dated the 19th of October 1954, from the Chief Engineer, P. W. D., N: W.F.P., to the Superintending Engineer, Development Circle, P. W. D. Peshawar has been handed over to us by Mr. S. M. Zafar, learned counsel for the appellants, and it is put on record without any objection from the respondents. Relevant extracts from the memorandum are as follows-- "No. 19938-P. W. Dated, Peshawar the 19-10-1954.
21. NORTH-WEST FRONTIER PROVINCE, PUBLIC WORKS DEPARTMENT From, The Chief Engineer, P. W. D., N. W.F. Province.
22. To, The Superintending Engineer, Development Circle, P. W. D., Peshawar.
23. Subject-Schedule of Rates.
24. Reference-Your No. 210/17/4-M., dated 21-7-54.
(1) It has come to my notice that the rates clarified vide pare. 5 of my No. 546-CED/11-M., dated 8- 5-54 copy sent to you with this office No. 11550-P.W./191/C. W., dated 18-6-54 have not been properly understood and are being applied incorrectly.
(2) As would appear from the details worked out vide para. 4 of my No. 546-CED/11-M., dated 8-5- 54, the rates viz. 3.51 per C.C. Ft. And 4-21 per C.C. Ft. For forming embankments in medium and hard soil respectively are when the lead of earth from borrow pits is up to a total distance not exceeding mile. This does not mean if the total distance is up to 50 yards or 100 yards the rate should be paid that of total distance up to mile. The practice should, therefore, stop forthwith and following rates may please be substituted against para. 4(iii) of my No. 546-CED/11-M., dated 8-5- 54 when the lead of earth is other than that of total distance not exceeding 4 mile and payments regularised accordingly. These may also be added in item 30 on page 45 of the P. W. D. Schedule of rates1950.
25. (i)
26. Transport material or spoil by any means up to a total distance not exceeding 25 yards = 0.38 per C.C.Ft.
(ii) do.
27. 50 yards= 0.55 do.
(iii) do.
28. 100 yards= 0.79 do.
(iv) do.
29. 200 yards=1.14 do.
(v) do.
30. 300 yards =1.42 do.
(vi) do.
31. 400 yards=1.69 do.
(vii) do. each subsequent -- mile= 0.84 do.
(3) It may please be noted that the rate stated vide para. 4(1) of my No. 546-CED/11-M, dated 8-5- 54 already includes 0.38 Per C .C. Ft. For transport of earth up to total distance not exceeding 25 yards. The same, therefore, should not be paid in addition to those as stated vide para. (2) above Le. When working out complete rate for forming embankment Rs. 0.38 should be deducted from each of the items stated vide para. (2) above (Sd.)
32. Chief Engineer, P W. D., N.W.F. Province.
33. No. 19939-P.W.
34. Copy forwarded to Deputy Chief Engineer, Development. All Superintending Engineers except Development Circle, and all Executive Engineers in the P. W. D., N. W F.P., for Infor--mation and necessary action. Entries in the schedule of Rates 1950 may please be made as per para. 2(ii) to
(vi) and 5 above.
35. (Sd.)
36. Chief Engineer, P. W. D., N.W.F. Province.
37. The learned Advocate-General, N.W.F.P., appearing on behalf of the respondents, has stated that the Chief Engineer was also .Ex officio Secretary to the Government, Irrigation Department. Prima facie, therefore, the Chief Engineer had the authority to issue the memo dated the 19th of October 1954, and his com--petency to do so has not been disputed. On the contrary, the records including the minutes of the meeting of the Special Com--mittee constituted to consider item 30 of P. W. D.
38. Schedule of rates of the former N. W. F. P. Held on the 31st of May 1961, support this view (vide Exh. D.
39. 6 at page 156 of the paper-book). In order to fully appreciate the instructions contained in the memorandum dated the 19th of October 1954, it is necessary at this stage to reproduce items 20 and 30 of the old as well as the amended schedule of rates. They are as follows:- Item No.20 Schedule page 43.
40. Unit Ordinary soil Hard soil.
41. Conglomerate etc. Rock not requiring Blasting.
42. Hard stratified Rock requiring Blasting.
43. Hard rock requiring blasting when blasting is prohibited and the excavation is done by chisels.
44. C.
45. Rs.
46. Rs.
47. Rs.
48. Rs.
49. Rs.
50. Rs.
51. Excavate in any position. Including up to 5 ft.
52. Lift and throw aside or removea distance not exceeding yards and deposit where directed including forming bottom surface to required level and slope.
53. C.FT.
54. 1.29 1.99 2.71 5.95 17.29 31.25 Item No. 30 Schedule page 45 Unit n. Exc. 25 yards n. Exc -- mile.
55. Each Subsequent -- mile.
56. C.
57. Rs.
58. Rs.
59. Rs.
60. Transport material or spoil by any means up to total distance not exceeding 5 miles.
61. (Rate Column No.1 will not be paid in addition to Column Nos. 2 or 3 excluding load or unload.
62. Cft.
63. 0.38 1.88 0.84 Amended schedule of rates Item No.20 Schedule page 43.
64. Unit Ordinary soil.
65. Hard soil.
66. Conglomerate etc. Rock not requiring Blasting.
67. Hard stratified Rock requiring Blasting.
68. Hard rock requiring blasting when blasting is prohibited and the excavation is done by chisels.
69. Excavate in any position. Including up to 5 ft.
70. Lift and throw aside or removea distance not exceeding yards and deposit where directed including forming bottom surface to required level and slope.
71. C.
72. C.Ft.
73. Rs.
74. 1.29 Rs.
75. 1.99 Rs.
76. 2.71 Rs.
77. 5.95 Rs.
78. 17.29 Rs.
79. 31.25 Item No. 30 Distance Unit n. Exc. 25 yards n. Exc -- mile.
80. Each Subsequent -- mile.
81. C.
82. Rs.
83. Rs.
84. Rs.
85. Transport material or spoil by any means up to total distance not exceeding 5 miles.
86. (Rate Column No.1 will not be paid in addition to Column Nos. 2 or 3 excluding load or unload.
87. Cft.
88. 0.38 1.18 ---A--- 0.84 "A" Applicable upto18-10-54 from 19-10-54, rates for Item (3) shall be paid as on page 48.
89. 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.
90. 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."
91. 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.
92. 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.
93. 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.
94. 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.
95. 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.
96. 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.
97. 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.
98. To The Chief Engineer, Irrigation, West Pakistan, Lahore.
99. Memo No. 5-12-/SO. VIII(I)59, dated 8-1-1962.
100. Subject:-Advance para of inspection report of Grow More Construction Division Nowshera.
101. Reference: Your Memo No. WOI/61/3271/1026/58, dated 22-12-61 on the subject noted above.
102. 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.
103. (Sd)
104. 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.
105. Copy forwarded for information to--: -
(1) Section Officer, Dev. (Works) Govt. Of West Pak. F. D.
(2) Deputy Chief Engineer, Peshawar Region, Peshawar.
106. (3)Supdt. Engineer, Central Irrigation Circle, Peshawar.
107. (4)Superintending Engineer, Southern Irrg. Circle, Bannu.
(5) Superintending Engineer. Northern Irrg. Circle, Mardan, (Sd.)
108. A. U. Khan, For Secy. To Govt. Of West Pak. and Communication and Works Lahore."
109. 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.
110. 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.
111. HAMOODUR RAHMAN, C. J-I agree.
112. ANWARUL HAQ, J-I agree.
113. MUHAMMAD GUL, J-I agree.