Sanjay Kishan Kaul, J.

1. The petitioner awarded a contract to respondent No. 1 in respect of Four lining and strengthening of existing Two Lane Section of NH-2 near Kanpur. A contract was awarded on 27.3.2002 for an amount of Rs. 4.961 billion. The contract awarded was a unit rate contract comprising of a detailed Bill of Quantities (hereinafter referred to as the BOQ). The BOQ contained the description of the items of the work to be executed by respondent No. 1 as contractor and the estimated quantities of each item. The rates of each BOQ item were to be filled in by respondent No. 1/contractor.

2. In the execution of the contract a dispute arose between the parties in respect of Item No. 7.07 of the BOQ which provided for the reinforced earth structure including soil reinforcing geogrid with all fixtures and accessories complete as per approved design and drawing of specialised firm and matters connected therewith. The dispute was not really in respect of nature of work to be performed but was the consequence of the geogrids/geotextile material exceeding the BOQ in the contract.

3. The contract between the parties provided for a mechanism of a Dispute Review Board (hereinafter referred to as the DRB) prior to the parties availing of their legal remedies as the mode of settlement of disputes by arbitration. A three-member panel of DRB was constituted consisting of a member, each appointed by the two parties, and a third member appointed by the two members so appointed. It is stated that the two members of the DRB were retired Chief Engineers and the third one was the retired Superintendent Engineer. This report of the DRB went in favor of respondent No. 1.

4. The petitioner was not satisfied with the decision of the DRB and in view of the arbitration clause in the contract between the parties, the dispute was referred to arbitration consisting of a panel of three arbitrators appointed in the similar fashion of one arbitrator being appointed by each side while the third arbitrator appointed by the two arbitrators so appointed. It is stated that the two members of the Arbitral Tribunal were retired Director General (Works), CPWD and retired Chairman, NBCC Limited while the third one was the retired Additional Director General , BRO. Thus, the matter has been examined by technical people conversant with the nature of transaction.

5. In order to truly appreciate the nature of the dispute, it has to be noticed that the crux of the matter is that while according to the petitioner such increase in BOQ would require fresh negotiated rate to be determined for the quantities, respondent No. 1 pleaded that the increased BOQ should be paid at the same rate as per the contract. This dispute on the basis of the terms of the contract was decided by a majority award of the arbitrators dated 3.6.2005 whereby once again the arbitrators came to a conclusion which went against the petitioner. Hence, the present objections under Section 34(2) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the said Act) have been filed by the petitioner.

6. The disputes between the parties revolves upon the interpretation of the terms of the General Conditions of Contract (hereinafter referred to as GCC) under the headings Alterations, Additions and Omissions. In order to truly appreciate the said terms, it would be necessary to reproduce the same as under:

Alterations, Additions and Omissions

51.1 Variations

The Engineer shall make any variation of the form, quality or quantity of Works or any part thereof that may, in his opinion, be necessary and for the purpose, or if for any other reason it shall, in his opinion, be appropriate, he shall have the authority to instruct the Contractor to do and the Contractor shall do any of the following:

(a) increase or decrease the quantity of any work included in the Contract,

(b) omit any such work (but not if the omitted work is to be carried out by the Employer or by another contractor),

(c) change the character or quality or kind of any such work,

(d) change the levels, lines, position and dimensions of any part of the Works,

(e) execute additional work of any kind necessary for the completion of the Works, or

(f) change any specified sequence or timing of construction of any part of the Works.

No such variation shall in any way vitiate or invalidate the Contract, but the effect, if any, of all such variations shall be valued in accordance with Clause 52. Provided that where the issue of an instruction to vary the Works is necessitated by some default of or breach of contract by the Contractor or for which he is responsible, any additional cost attributable to such default shall be borne by the Contractor.

51.2 Instructions for Variations

The Contractor shall not make any such variation without an instruction of the Engineer. Provided that no instruction shall be required for increase or decrease in the quantity of any work where such increase or decrease is not the result of an instruction given under this Clause, but is the result of the quantities exceeding or being less than those stated in the Bill of Quantities.

52.1 Valuation of Variation

All Variations referred to in Clause 51 and any additions to the Contract Price which are required to be determined in accordance with Clause 52 (for the purposes of this Clause referred to as "varied work") shall be valued at the rates and prices set out in the Contract if, in the opinion of the Engineer, the same shall be applicable. If the contract does not contain any rates or prices applicable to the varied work, the rates and prices in the Contract shall be used as the basis for valuation so far as may be reasonable, failing which after due consultation by the Engineer with the Employer and the Contractor, suitable rates or prices shall be agreed upon between the Engineer and the Contractor. In the event of disagreement the Engineer shall fix such rates or prices as are, in his opinion, appropriate and shall notify the Contractor accordingly, with a copy to the Employer. Until such time as rates or prices are agreed or fixed, the Engineer shall determine provisional rates or prices to enable on-account payments to the included in certificates issued in accordance with Clause 60.

52.2 Power of Engineer to fix Rates

Provided that if the nature or amount of any varied work relative to the nature or amount of the whole of the Works or to any part thereof, is such that, in the opinion of the Engineer, the rate or price contained in the Contract for any item of the Works is, by reason of such varied work, rendered inappropriate or inapplicable, then, after due consultation by the Engineer with the Employer and the Contractor, a suitable rate or price shall be agreed upon between the Engineer and the Contractor. In the event of disagreement the Engineer shall fix such other rate or price as is, in his opinion, appropriate and shall notify the Contractor accordingly, with a copy to the Employer. Until such time as rates or prices are agreed or fixed, the Engineer shall determine provisional rates or prices to enable on-account payments to be included in certificates issued in accordance with Clause 60.

Provided also that no varied work instructed to be done by the Engineer pursuant to Clause 51 shall be valued under Sub-clause 52.1 or under this Sub-Clause unless, within 14 days of the date of such instruction and, other than in the case of omitted work, before the commencement of the varied work, notice shall have been given either:

(a) by the Contractor to the Engineer or his intention to claim extra payment or a varied rate or price, or

(b) by the Engineer to the Contractor of his intention to vary a rate or price.

52.3 Variations Exceeding 15 per cent

If, on the issue of Taking-Over certificate for the whole of the Works, it is found that a result of:

(a) all varied work valued under Sub-clauses 52.1 and 52.2, and

(b) all adjustments upon measurement of the estimated quantities set out in Bill of Quantities, excluding Provisional Sums, day works and adjustments of price made under Clause 70,

but not from any other cause, there have been additions to or deductions from Contract Price which taken together are in excess of 15 per cent of the "Effective Contract Price" (which for the purposes of this sub-clause shall mean Contract Price, excluding Provisional Sums and allowance for day works, if any) then and in such event (subject to any action already taken under any of sub-clause of this Clause), after due consultation by the Engineer with the employer and the Contractor, there shall be added to or deducted from Contract Price, such further sum as may be agreed between the Contractor and Engineer or, failing agreement, determined by the Engineer having regards to Contractors Site and general overhead costs of the Contract. The Engineer shall notify the Contractor of any determination made under thus Sub-Clause, with copy to the Employer. Such sum shall be based only on the amount by which such additional or deductions shall be in excess of 15 per cent of the Effective Contract Price.

Measurement

55.1 Quantities

The quantities set out in the Bill of Quantities are the estimated quantities for the Works, and they are not to be taken as the actual and correct quantities of the Works to the executed by the Contractor in fulfillment of his obligations under the Contract.

7. It is the submission of learned senior counsel for the petitioner that Clause 51.1 refers to all kinds of variations which will include instructed variations by the Engineer as well as uninstructed variations. A reading of Clause 51.1 shows that the same deals with the authority of the Engineer to make any variations in the form, quality or quantity of the works and for the mandate to the contractor to do the needful on any of the aspects provided in Sub-clause (a) to Sub-clause (f). It is further clarified that such variation will not in any way vitiate or invalidate the contract. The object is clear that if there is any such variation, the contract would continue but the mode of valuation of such variation would be as provided under the said head.

8. Clause 51.2 refers to the instructions for variations and mandates that the contractor of his own cannot make any variations without instructions of the Engineer. The proviso to the said clause simultaneously stipulates that no instruction would be required for increase or decease in quantity of any work where the increase or decrease is not the result of an instruction given under this Clause but is the result of quantities exceeding/less than those stated in the BOQ. Once again there can be little doubt that the object of Clause 51.2 is that there is absence of requirement of any instruction of the Engineer to the contractor where there is no increase or decrease of work but the BOQs change since only the estimated quantities are provided under the contract.

9. Clause 52.1 provides for valuation of variation. The said clause also states that it deals only with the variations as provided for in Clause 51 which are required to be determined in accordance with Clause 52. The variation has to be at the rate and prices set out in the contract, if in the opinion of the Engineers the same are applicable.

10. Clause 52.2 gives the power to the Engineer to fix rates wherein a suitable rate of price has to be agreed to between the Engineer and the contractor. There is also a stipulation by the proviso that no varied work instructed to be done by the Engineer pursuant to Clause 51 shall be valued under Sub-clause 52.1 or under this sub-clause unless, within 14 days of the date of such instruction and, other than in the case of omitted work, before the commencement of the varied work, notice shall have been given either.

11. Learned senior counsel for the petitioner, thus, contends that the proviso to Clause 51.2 should not be read in isolation, as done by the Arbitral Tribunal, but a distinction must be carved out between the extra work performed as per the instructions of the Engineer and work which does not require any such instructions.

12. Learned senior Counsel for respondent No. 1, on the other hand, contends that the aforesaid clauses have no application to the case at hand because there were no instructions by the Engineer in the present case, the increase occurring only on account of increase in the BOQs. The decision of the Arbitral Tribunal is, thus, sought to be supported by respondent No. 1.

13. I have heard the learned senior counsel for the parties and in my considered view the decision of the Arbitral Tribunal in this behalf cannot be faulted. I am of the view that there is a little doubt that a reading of Clause 51.1 read with the other clauses refer to the variations which are instructed variations and Clause 52 would not come into play since the same arises only for instructed variations. It is the categorical finding of the Arbitral Tribunal that the ultimate measured work performed is different from the estimated quantity but the parties contracted on the basis that such quantity may increase or decrease. There is no change in the design in view of the clear admission of the petitioner before the DRB that the design was reviewed and found according to the specified criteria and the petitioner was not able to establish any change in the design. On a reading of the clauses, a conclusion was reached that the second para of Sub-clause 52.2 clearly mandates that the provision in the said clause is applicable only for varied work instructed to be done by Engineers as per Clause 51 and the case at hand is not the one where Engineers instructions are required as per provisions of Sub-clause 51.2. The Engineer administering the contract did not give any notice of 14 days of his intention to vary the rate but found that the BOQ rate would apply, the matter being one of mere change in quantity and the work including the use of geogrid material was allowed to be executed accordingly and checked at every stage and paid at BOQ rate.

14. Learned senior Counsel for the petitioner did seek to contend that the Arbitral Tribunal fell into an error while referring to the notice of 14 days since the same would come into play only in case of instructed variations. One cannot dispute the submission of learned senior counsel to the extent that such mandatory notice of 14 days would arise only in case of instructed variations. The Arbitral Tribunal has not held that the Engineer failed in its duty to give the 14 days notice, but has, in fact, held that since the matter fell within the domain of uninstructed variations, the Engineer did not give 14 days notice as would have been the requirement in case of instructed variation.

15. Learned senior Counsel for respondent No. 1 also sought to support his plea by reference to the judgment of an Appellate Division of the South African Court in Grinaker Construction (TVL) (Pty) Ltd. v. Transvaal Provincial Administration 1982 (1) AD 78. A similar contractual clause came into for interpretation and it was held that automatic increases or decreases did not form part of the variation. Learned senior counsel for the parties have stated on a specific query being raised by this Court that they have not been able to find out any other judgment of the Indian Courts or any other Court to support their respective pleas on the interpretation of this clause.

16. The relevant clauses in Grinaker Construction (TVL) (Pty) Ltd. v. Transvaal Provincial Administration (supra) are reproduced hereinunder:

Alterations, additions and omissions

(1) The engineer shall make any variation of the form, quality or quantity of that purpose, or for any other reason it shall be in his opinion desirable, shall have power to order the contractor to do and the contractor shall do any of the following:

(a) Increase or decrease the quantity of any work included in the contract.

(b) Omit any such work,

(c) Change the character or quality or kind of any such work.

(d) Change the levels, lines, position and dimensions of any part of the works.

(e) Execute additional work of any kind necessary for the completion of the works;

and no such variation shall in any way vitiate or invalidate the contract provided the total contract amount be not thereby increased or decreased in value more than 20 per cent and provided further that the total quantity of any sub-item whose value in the schedule of quantities is in excess of 7 per cent of the total contract amount, be not thereby increased or decreased by more than 25 per cent.

(2) No such variation shall be made by the contractor without an order writing of the engineer. Provided that no order in writing shall be required for increase or decrease in the quantity of any work where such increase or decrease is not the result of an order given under this clause, but is the result of the quantities exceeding or being less than those stated in the schedule of quantities. Provided also that if for any reason the engineer shall consider it desirable to give any such order verbally, the contractor shall comply with such order, and any confirmation in writing of such verbal order given by the engineer whether before or after the carrying out of the order, shall be deemed to be an order in writing within the meaning of this clause. Provided further that if the contractor shall confirm in writing to the engineer any verbal order of the engineer, and such confirmation shall not be contradicted in writing by the engineer, it shall be deemed to be an order in writing by the engineer.

(3) The engineer shall determine the amount (if any) to be added to or deducted from the contract amount in respect of any additional work done or work omitted by his order. All such work shall be valued at the rates set out in the contract, if in the opinion of the engineer the same shall be applicable. If the contract shall not contain any rates applicable to the additional work, the same shall be classed as extra work and payment in respect thereof shall be made as hereinafter provided.

(4) Provided that if such variation or variations shall result in an increase or decrease of more than 20 per cent in the value of the total contract amount or an increase or decrease of more than 25 per cent in the total quantity of any sub-item whose value in the schedule of quantities is in excess of 7 per cent of the total contract amount and subject to the production of satisfactory evidence that loss or damage has been sustained by the contractor as a result of such variation or variations, the engineer shall fix such other rate or price as in the circumstances he shall think reasonable and proper.

(5) Provided also that no increase of the contract amount under Sub-clause (3) of this clause, or variation of rate or price under Sub-clause (4) of this clause shall be made unless, as soon after the date of the order as is practicable, and in the case of additional work before the commencement of the work or as soon thereafter as is practicable, notice shall have been given in writing:

(a) by the contractor to the engineer of his intention to claim extra payment for a varied rate, or

(b) by the engineer to the contractor of his intention to vary a rate of (or) price, as the case may be.

17. In order to appreciate the parity between the clauses at hand and the clauses in the said judgment, the differences in the two clauses have been put together, which is as follows:

Alterations, Additions and Omissions

51.3 - Variations

The Engineer shall make any variation of the form, quality or quantity of the Works or any part thereof that may, in his opinion, be necessary and for that the purpose, or if for any other reason it shall be, in his opinion desirable, be appropriate, he shall have the authority to instruct the Contractor to do and the Contractor shall do any of the following:

(a) increase or decrease the quantity of any work included in the Contract,

(b) omit any such work (but not if the omitted work is to be carried out by the Employer or by another contractor),

(c ) change the character or quality or kind of any such work,

(d) change the levels, lines, position and dimensions of any part of the Works,

(e) execute additional work of any kind necessary for the completion of the Works, or

(f) change any specified sequence or timing of construction of any part of the Works.

No such variation shall in any way vitiate or invalidate the Contract provided the total contract amount be not thereby increased or decreased in value more than 20% and provided further that the total quantity of any sub item whose value in the schedule of quantities is in excess of 7.1/2% of the total contract amount, be not thereby increased or decreased by more than 25%, but the effect, if any, of all such variations shall be valued in accordance with Clause 52. Provided that where the issue of an instruction to vary the Works is necessitated by some default of or breach of contract by the Contractor or for which he is responsible, any additional cost attributable to such default shall be borne by the Contractor.

51.2 Instructions for Variations

The Contractor shall not make any such variation without an instruction of the Engineer. Provided that no instruction shall be required for increase or decrease in the quantity of any work where such increase or decrease is not the result of an instruction given under this Clause, but is the result of the quantities exceeding or being less than those stated in the Bill of Quantities. Provided also that if for any reason the Engineer shall consider it desirable to give any such order verbally, the contractor shall comply with such order, and any confirmation in writing of such verbal order given by the Engineer whether before or after the carrying out of the order, shall be deemed to be an order in writing within the meaning of this clause. Provided further that if the contractor shall confirm in writing to the Engineer any verbal order of the Engineer, and such confirmation shall not be contradicted in writing by the Engineer, it shall be deemed to be an order in writing by the Engineer.

52.1 Valuation of Variation

All Variations referred to in Clause 51 and any additions to the Contract Price which are required to be determined in accordance with Clause 52 (for the purposes of this Clause referred to as "varied work") shall be valued at the rates and prices set out in the Contract if, in the opinion of the Engineer, the same shall be applicable. If the contract shall not contain any rates applicable to the additional work, the same shall be classed as extra work and payment in respect thereof shall be made as hereinafter provided. If the contract does not contain any rates or prices applicable to the varied work, the rates and prices in the Contract shall be used as the basis for valuation so far as may be reasonable, failing which after due consultation by the Engineer with the Employer and the Contractor, suitable rates or prices shall be agreed upon between the Engineer and the Contractor. In the event of disagreement the Engineer shall fix such rates or prices as are, in his opinion, appropriate and shall notify the Contractor accordingly, with a copy to the Employer. Until such time as rates or prices are agreed or fixed, the Engineer shall determine provisional rates or prices to enable on-account payments to the included in certificates issued in accordance with Clause 60.

52.2 Power of Engineer to fix Rates

Provided that if such variation or variations shall result in an increase or decrease of more than 20% in the value of the total contract amount or an increase or decrease of more than 25% in the total quantity of any sub-item whose value in the schedule of quantities is in excess of 7.1/2% of the total contract amount and subject to the production of satisfactory evidence that loss or damage has been sustained by the contractor as a result of such variation or variations, the Engineer shall fix such other rate or price as in the circumstances he shall think reasonable and proper.

Provided that if the nature or amount of any varied work relative to the nature or amount of the whole of the Works or to any part thereof, is such that, in the opinion of the Engineer, the rate or price contained in the Contract for any item of the Works is, by reason of such varied work, rendered inappropriate or inapplicable, then, after due consultation by the Engineer with the Employer and the Contractor, a suitable rate or price shall be agreed upon between the Engineer and the Contractor. In the event of disagreement the Engineer shall fix such other rate or price as is, in his opinion, appropriate and shall notify the Contractor accordingly, with a copy to the Employer. Until such time as rates or prices are agreed or fixed, the Engineer shall determine provisional rates or prices to enable on-account payments to be included in certificates issued in accordance with Clause 60.

Provided also that no varied work instructed to be done by the Engineer pursuant to Clause 51 shall be valued under Sub-Clause 52.1 or under this Sub-Clause unless, within 14 days of the date of such instruction and, other than in the case of omitted work, before the commencement of the varied work, notice shall have been given either:

(a) by the Contractor to the Engineer or his intention to claim extra payment or a varied rate or price, or

(b) by the Engineer to the Contractor of his intention to vary a rate or price.

52.3 Variations Exceeding 15 per cent

If, on the issue of Taking-Over certificate for the whole of the Works, it is found that a result of:

(a) all varied work valued under Sub-Clauses 52.1 and 52.2, and

(b) all adjustments upon measurement of the estimated quantities set out in Bill of Quantities, excluding Provisional Sums, day works and adjustments of price made under Clause 70,

but not from any other cause, there have been additions to or deductions from Contract Price which taken together are in excess of 15 per cent of the "Effective Contract Price" (which for the purposes of this Sub-Clause shall mean Contract Price, excluding Provisional Sums and allowance for day works, if any) then and in such event (subject to any action already taken under any of Sub-Clause of this Clause), after due consultation by the Engineer with the employer and the Contractor, there shall be added to or deducted from Contract Price, such further sum as may be agreed between the Contractor and Engineer or, failing agreement, determined by the Engineer having regards to Contractors Site and general overhead costs of the Contract. The Engineer shall notify the Contractor of any determination made under thus Sub-Clause, with copy to the Employer. Such sum shall be based only on the amount by which such additional or deductions shall be in excess of 15 per cent of the Effective Contract Price.

Measurement

55.1 Quantities

The quantities set out in the Bill of Quantities are the estimated quantities for the Works, and they are not to be taken as the actual and correct quantities of the Works to the executed by the Contractor in fulfillment of his obligations under the Contract.

18. The Appellate Division reached a conclusion that Sub-clause 4 (paramateria to Clause 52.2) should be construed in the light of sub-clauses which preceded and would, thus, not include within its domain an automatic increase and decrease. The argument equating a variation of quantity of works as envisaged in Sub-clause (1) with increase or decrease of quantity in the schedule of quantities was rejected. Thus, it was found that there was no cause for the Engineer to intervene and to make any variation of the form, quality and quantity of the works or part thereof in case of such increases or decreases. This is so since the schedule of quantities contains "approximate" quantities only and that the contract price was to be computed in accordance with the actual quantity measured. This would automatically imply the possibility of increase or decrease in the quantities stated in the schedule of quantities.

19. The judgment also clarifies in respect of Sub-clause (2) of Clause 49 (paramateria to Clause 51.2) that the words "no such variation" appearing in the operative first sentence of Sub-clause (2) embrace all three aspects of the variation as contemplated in Sub-clause (1), viz the form, quality or quantity of the work while the first proviso deals with the quantity only. It has been observed that such a proviso was inserted for the benefit of the contractor in order to dispel any uncertainty which may arise in the contractors mind as to when exactly a written order from the Engineer is required. The proviso is held to lead to the following conclusions:

(a) If the increase or decrease in the quantity of any work is the result of the quantities exceeding or being less than those stated in the schedule of quantities, no order in writing shall be required;

(b) On the other hand, if the increase or decrease is the result of an order given under this clause (i.e. Clause 49) an order in writing shall be required I have turned the two negatives into a positive).

Thus analysed, the proviso is reasonably clear. The contractor is told that, if the engineer does not intervene and it is simply a case of the quantities exceeding or being less than those stated in the schedule of quantities, he shall not require a written order from the engineer. The implication is clear that this is so because it is not a variation in terms of Sub-clause (1). He shall only require such written order if the engineer has ordered him to give effect to a variation as contemplated in Sub-clause (1).

20. Sub-clauses (3) and (4) have thereafter been incorporated [Sub-clause (3) being paramateria to Clause 52.1]. It has been stated that these clauses were relied upon because it provided for the possibility of the contractor being remunerated at higher rates (or which can be under lower rates) than that contracted for in the schedule of quantities. A conclusion was reached that the expression "variation/variations" can only refer to the ones made by the Engineer in terms of Clause 49(1) which are not to include automatic increases or decreases. In fact, a contrary conclusion was held to mitigate against the purely linguistic construction put on lause 49. It was, thus, held that where a party strikes a bad bargain, the Court cannot, out of sympathy for him, amend the contract in his favor by reference to the observations in Van Rensburg Straughanm 1914 AD 317 at 328 in the following terms:

The position for him is no doubt hard; but those who enter into onerous one - sided agreements have only themselves to thank. A court of law cannot assist them merely because the results are harsh.

21. The aforesaid judgment has also emphasised that it is the grammatical and ordinary meaning of the words which must be given effect to by reference to the judgment in Scottish Union and National Insurance Co. Ltd. v. Native Recruiting Corporation Ltd. 1934 AD 458 as under:

It has been repeatedly decided in our Courts that in construing every kind of written contract the Court must give effect to the grammatical and ordinary meaning of the words used therein. In ascertaining this meaning, we must give to the words used by the parties their plan, ordinary and popular meaning, unless it appears clearly from the context that both the parties intended them to bear a different meaning. If, Therefore, there is no ambiguity in the words of the contract, there is no room for a more reason able interpretation than the words themselves convey. If, however, the ordinary sense of the words necessarily leads to some absurdity or to some repugnance or inconsistency with the rest of the contract, then the Court may modify the words just so much as to avoid that absurdity or inconsistency but no more.

22. I find myself in full agreement with the aforesaid observations.

23. The aspect which also cannot be lost sight of is that this is the interpretation arrived at by the Dispute Review Board as also by the Arbitral Tribunal. It is trite to say that this Court does not sit as a Court of appeal over the decision of an Arbitral Tribunal even within the expanded scope of scrutiny of an award as per the judgment of the Supreme Court in Oil and Natural Gas Corporation Ltd. v. Saw Pipes Ltd. : [2003]3SCR691 where it has been observed that a contract has to be interpreted by the arbitrator, who is a chosen judge by the parties. So long as the view of the arbitrators is a plausible view, though may not be the only possible view, no interference is called for by the Court. Of course, the Court is not without jurisdiction to interfere where the view taken by the arbitrator is so absurd that no reasonable person would have come to the said view. In the said case the Supreme Court has also observed that the illegality must go to the root of the matter and if the illegality is of a trivial nature, it cannot be held that the award is against the public policy and the award could also be set aside if it is so unfair and unreasonable that it shocks the conscience of the Court as observed in McDermott International Inc. v. Burn Standard Co. Ltd. and Ors. 2006 (2) Arb. LR 498.

24. The legal position has, in fact, not changed to this extent on the Arbitration Act, 1940 since even under the earlier Act a closer scrutiny of merits of documents and materials on record was found to be untenable. Interpretation of a contract is a matter for the Arbitral Tribunal to determine. This view is supported by a number of judgments of the Apex Court including in Food Corporation of India v. Joginderpal Mohinderpal and Anr. : [1989]1SCR880 ; Gujarat Water Supply and Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. and Anr. : [1989]1SCR318 and Sudarsan Trading Co. v. Govt of Kerala : [1989]1SCR665 . The present contract has been interpreted by technical people who were well conversant with the nature of disputes and for that reason also a great weight has to be given to such a view as held in DDA v. Bhagat Construction Co. (P) Ltd. and Anr. 2004 (3) Arb. LR 481.

25. I also deem it appropriate to draw strength from the fact that even the parties to the dispute understood the aspect in a similar fashion prior to the reference of disputes to arbitration. In this behalf, it will be useful to refer to the deliberations of the meeting held between the parties on 7.11.2003 when it was noted as under:

The last proposal of the Engineer was to allow the Contractor to continue with the design as well as the grog rids approved on the Project, provided the Contractor accepted a reduction in unit rate of the geogrids under Sub-clause 52.2 of Conditions of Particular Application. The Contractor pointed out that this was a case re-measurement of quantity under Sub-clause 51.2 and not a variation under Clause 51 of General Conditions of Contract and hence there is not question of application of provisions of Sub-clause 52.2 of General Conditions of Contract as well as Conditions of Particular Application. The Contractor stated that since the quantity of geogrids were derived from the design of RE Wall duty approved and confirmed as optimized by the Engineer, the quantity of geogrid happened to increase without any specific direction of the Engineer as the nature form or character of work had not changed and was only contingent to the quantity of precast facia panels. At this juncture General Manager (WB) asked for the opinion of the Team Leader on the Contractors contention on the application of Sub-clause 52.2 of Conditions of Particular Application. The Team Leader replied that this was a case of re-measurement under Sub-clause 51.2 and variation was neither ordered nor admissible under Clause 51 and hence application of provisions of Clause 52.2 was out of question. General manager (WB) directed the Team Leader to follow the Contract provisions in this regard.

26. It was, thus, also the understanding of the respective parties that the present matter was not one where instructions of the Engineer were required in terms of Clause 51 and Clause 52 of the GCC between the parties.

27. Learned senior Counsel for respondent No. 1 also sought to derive strength from the Guide to the use of FIDIC Conditions of Contract for Works of Civil Engineering Construction where while dealing with the aspect of variations under Clause 51.1, it has been observed that a variation is not required if actual quantities of work envisaged at the time of tendering proof of measurement is different from those entered in the Bill of Quantities.

28. A reading of the aforesaid coupled with the judgment in Grinaker Construction (TVL) (Pty) Ltd. v. Transvaal Provincial Administration (supra) leaves no manner of doubt that what is envisaged in such international contracts for construction while dealing with such clauses of variation is instructed variation arising from the decision of the Engineer and not uninstructed variation arising from change of quantity. This is also in accordance with the general understanding of the clauses that once a contracted price is provided and the quantities are held to be tentative, any increase or decrease in quantity must be governed by the same price and it is only in respect of any instructed variation arising from the instruction of the Engineer on account of any additional work or less work that there has to be some element of renegotiation and determination in terms of Clauses 51 and 52 of the General Conditions of Contract.

29. Learned senior Counsel for the petitioner also sought to contend that the findings of a breach of the contract by the arbitral tribunal are unfounded and really did not form the subject matter of reference. In this behalf it may be noticed that as per the provisions of Clause 67.1 of the GCC, the mandate is for the recommendations of the DRB to be binding on the parties and to be given effect to until and unless the same are revised in terms of an arbitral award. The observations of Arbitral Tribunal, in my considered view, were in that context that the petitioner was bound to give effect to the recommendations of the DRB pending the outcome of the Arbitral Award.

30. The parties are really at ad idem that the main dispute which was before the DRB and referred to the Arbitral Tribunal pertained to the issue whether as per the contract provisions the Engineer has the right to revise rate for additional quantities of geogrid in excess of BOQ quantities. The parties were, in fact, at ad idem, as stated in para 7.5 of the award, that the changes as mentioned in the variation Clause 51.1 are only those where instructions of Engineer are required and given by him. The disagreement pertain only to the point whether in a situation where there is increase or decrease of quantity not as a consequence of the result of any instruction but of the quantity exceeding or being less than those stated in the BOQs constitute a variation or not. In para 8.2 of the award it has been stated that the petitioner admitted that there was no change in the design and the petitioner could not establish any change in this regard before the Tribunal. Thus, there was only one question to be examined by the Tribunal which has been so examined and was argued before this Court.

31. The aforesaid being the only aspect contended and required to be examined by this Court, I find no merit in the petition. The same is dismissed, leaving the parties to bear their own costs.