State Of Bihar v. Hardeo Singh — 1999 DIGILAW 969 (PAT)

Judgment S.N.Jha, J. 1. The State of Bihar seeks review of the judgment and order of a learned Single Judge of this Court in Miscellaneous Appeal No. 39 of 1994. 2. It may be stated at the very outset that the State of Bihar has also filed a Special Leave Petition being SLP (Civil) No. 852/97, in the Supreme Court against the same very judgment and order. In the ordinary course, in view of the provisions of Order XLVII Rule 1(a) of the Civil Procedure Code I should have declined to entertain this review petition but it appears from the order of the Supreme Court dated 21.4.97 that the SLP has been adjourned sine die in view of the pendency of this review petition. 3. The connected appeal arose out of a judgment of the First Subordinate Judge, Supaul dated 8.9.92 in Title Suit No. 14 of 1990 making the award of the Arbitrator rule of the Court. Although the facts giving rise to the appeal have been set out in the appellate judgment of this Court, in order to make this judgment self contained, the facts so far as relevant may briefly be noticed as follows : The State of Bihar entered into an agreement with the opposite party M/s Hardeo Singh for construction of Silt Ejector at 0.35 Km. of Western Kosi Canal. The formal agreement bearing no. 10-F2 of 1983-84 was executed in this regard on 3.9.83. On completion of the work, dispute arose between the parties regarding the quantum of claim due which was referred to the arbitration of the Superintending Engineer, Western Kosi Canal Circle, Nirmali in terms of clause 23 of the Agreement. The arbitrator made an award for Rs. 16,65,000/- on 7.4.90. The award was filed in the court of First Subordinate Judge, Supaul on 16.6.90. On receipt of the award the Subordinate Judge issued notice to the parties. The parties appeard through their counsel. While the contractor filed objection stating that the Arbitrator had failed to decide the entire dispute between the parties, no objection was filed on behalf of the State of Bihar. By order dated 20.9.90, the Subordinate Judge remitted the award to the Arbitrator for re-consideration. On 19.4.91, the Arbitrator submitted a fresh award in the court of Subordinate Judge, Notice was again issued to the parties. The parties appeared through their respective lawyer. By order dated 20.9.90, the Subordinate Judge remitted the award to the Arbitrator for re-consideration. On 19.4.91, the Arbitrator submitted a fresh award in the court of Subordinate Judge, Notice was again issued to the parties. The parties appeared through their respective lawyer. While this time the contractor did not file any objection, the State of Bihar filed objection on 2.9.92 alleging that the Arbitrator had misconducted the proceeding and the award was a procured one. After the State filed its objection, the contractor filed its rejoinder on 3.9.92 in paragraph 11 whereof it was stated that the Executive Engineer has given his written consent to the award and specifically mentioned that he has no objection against the revised award. It is relevant to mention here that the then Executive Engineer Sri J.N. Singh had informed the Subordinate Judge vide his letter no. 775 dated 30.8.92 that he had no objection to the revised award submitted by the Superintending Engineer-cum-Arbitrator vide his letter no. 366 dated 19.4.91. On 3.9.92 the matter was heard. From the impugned judgment of the Court below dated 3.9.92 it appears that the Assistant Government Pleader stated that if the Executive Engineer has no objection, then he had nothing to say against the award. The Subordinate Judge in the circumstances by his judgment and order dated 8.9.92 made the award rule of the court. The connected appeal was preferred against the said order. 4. The main ground on which the said impugned order was challenged was that the Executive Engineer was not competent to give "no objection" against the award and therefore, the court below had committed error in making the award rule of the court on that basis. It was also contended that as the agreement did not contain any arbitration clause, the Superintending Engineer was not competent to act as the Arbitrator and make the award. The learned Judge has held that the agreement in question has been signed by the Executive Engineer- on behalf of the State of Bihar and it was he who was representing the State before the Arbitrator as well as before the Court and therefore, it cannot be said that he was not competent to give no objection against the award. The learned Judge has held that the agreement in question has been signed by the Executive Engineer- on behalf of the State of Bihar and it was he who was representing the State before the Arbitrator as well as before the Court and therefore, it cannot be said that he was not competent to give no objection against the award. The learned Judge has further held that there is no material on record to show that the Executive Engineer had acted against the interest of the State in giving his no objection. The learned Judge rather observed that from the record it appears that "no objection given by the Executive Engineer was bona fide and the plea of the State that he had no authority to do so or that he did so against the interest of the State was "clearly an afterthought". The learned Judge has further observed that since the Arbitrator was none-else than the Superintending Engineer of the Department "there was no chance of his giving award against the appellants by going out of way". The learned Judge rejected the contention that in the absence of arbitration clause the Superintending Engineer cannot act as the Arbitrator holding that having participated in the arbitration proceeding without any protest, it is not open to the appellants to take such a plea. 5. Shri Ganga Prasad Roy, learned Additional Advocate General III appearing on behalf of the petitioners submitted that total value of the contract was Rs. 3,35,11,000/- against which the Department had paid on its own Rs. 3,33,05,000/-. However, white the First Arbitrator, Superintending Engineer Shri Ramchandra Jha gave his award for Rs. 16.65 lacs on 7.4.90, after the award was remitted by the court for re-consideration, the successor Superintending Engineer, Shri Md. Hanif Ansari acting as the Arbitrator gave award for Rs. 31.43 lacs. He pointed out that the objection to the said award was filed by Shri I.N. Singh, Executive Engineer on 2.9.92 but, curiously, on the basis of no objection letter filed by the same Executive Engineer three days ago on 30.8.92, the court made the award rule of the Court. It was contended that the "no objection" was filed without any authority or instruction of the competent authority. 6. It was contended that the "no objection" was filed without any authority or instruction of the competent authority. 6. Shri Pawan Kumar, learned counsel for the contractor-respondent submitted that the State was represented in the suit in the court below through the Executive Engineer and therefore, the then Executive Engineer was fully competent to give his "no objection". Counsel submitted that the plea having been considered and rejected by this Court in the connected appeal, it is not open to this court to again consider the same plea. In fact, it was submitted, all the grounds of review as set out in the review petition have been dealt with by the learned Single Judge. Reference was made to different paragraphs of the judgment. It was contended that while considering a review petition, the court is not supposed to sit as a Court of appeal and to consider whether the judgment is right or wrong the remedy of the aggrieved party is to prefer appeal and as a matter of fact, in the present case, the State of Bihar has already filed Special Leave Petition which is pending. No ground within the scope of Order 47 rule 1 of the Civil Procedure Code is made out and therefore, the review petition should be dismissed. Reliance in support of the contentions was placed on Ariban Tuleshwar Sharma V/s. Ariban Pishak Sharma and ors., AIR 1979 Supreme Court 1047, Devaraju Pillai V/s. Sellayya Pillai, AIR 1987 Supreme Court 1160, Lalji Khimji and ors. V/s. State of Gujrat, 1993 Supp. (3) SCC 567, Meera Bhanja (Smt.) V/s. Nirmala Kumari Chaudhary, (1995) 1 SCC 170 , Dokka Samuel V/s. Or. Jacab Lazarus Chelly, (1997) 4 SCC 478 and Shree Narayana Dharmasanghom Trust V/s. Swami Prkasanand and ors., (1997) 6 SCC 78 . 7. In reply, Shri Ganga Prasad Roy submitted that a detailed supplementary affidavit was filed In the connected appeal, stating the relevant facts on the point of incompetence of the Executive Engineer, Shri I.N. Singh to file "no objection" but the same was not considered by the learned Judge. According to the counsel, the learned Judge committed an error apparent on the face of the record in observing that the plea regarding the incompetence of Shri I.N. Singh was "an afterthought". According to the counsel, the learned Judge committed an error apparent on the face of the record in observing that the plea regarding the incompetence of Shri I.N. Singh was "an afterthought". Counsel referred to different paragraphs of the supplementary affidavit and the documents annexed thereto and submitted that from the judgment of the learned Judge it does not appear that the relevant facts as stated in the supplementary affidavit and/or documents annexed thereto were taken into account. This, according to the counsel, constitutes a "sufficient reason" and a good ground for review. He placed reliance on Moran Mar Basselios Catholicos and arm V/s. Most. Rev. Mar Poulose Athanasius and ors., AIR 1954 Supreme Court 526 and Gulam Abbas and ors. V/s. Aulla Abdul Kadar and ors., (1970) 3 SCC 643 . 8. Order 47 rule 1 of the Civil Procedure Code provides that any person aggrieved by a decree or order from which appeal is allowed but no appeal has been preferred or by decree or order from which no appeal is allowed or a decision on reference from the small cause Court, may apply for review of the judgment to the court which had passed the decree or order (a) on discovery of a new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order was made (b) on account of some mistake or error apparent on the face of record, or (c) for any other sufficient reason. In other words, the review petition can be filed on one or more of the above three grounds. The submission on behalf of the petitioners is that in the present case both grounds (b) and (c) are attracted. In other words, not only there is error apparent on the face of record but in the facts of the case there is sufficient reason for review of the judgment and order. 9. As regards the ground "any other sufficient reason" the Supreme Court in Moran Mar Basselios Catholicos and anr. V/s. Most. Rev. Mar Poulose Athanasius and ors., AIR 1954 Supreme Court 526 has held following the decisions of the Privy Council on the point that the words any other sufficient reason must mean "a reason at least analogous to the grounds specified in the rule". 10. V/s. Most. Rev. Mar Poulose Athanasius and ors., AIR 1954 Supreme Court 526 has held following the decisions of the Privy Council on the point that the words any other sufficient reason must mean "a reason at least analogous to the grounds specified in the rule". 10. The scope of review jurisdiction is well known. The court can review the judgment or order on discovery of a new material which could not be found and brought on record at the time the judgment or order was passed or on the ground of error apparent on the face of record or for any other sufficient reason. The thrust of the submission of the learned Additional Advocate General is that the learned Judge did not take into consideration the material facts stated in the supplementary affidavit and the documents annexed thereto and such non-consideration is an error apparent on the face of record. It was pointed out that in the supplementary affidavit it had been stated that in terms of the provisions of the Bihar Financial Rules and the PWD Code Shri I.N. Singh, the then Executive Engineer was not competent to give no objection or to make any concession on behalf of the State nor, in fact, he had taken prior sanction or permission from the competent authority. For his aforesaid act, the Government has taken steps to initiate a departmental action against the concerned officials including Shri i.N. Singh. It was also stated in the affidavit that in the present case, in view of the Financial Rules etc., the tender was put up for consideration before the Tender Committee headed by the Commissioner- cum-Secretary of the Department and it was that Committee which accorded administrative sanction to the tender with some modification on 17.9.83. Earlier, the Chief Engineer had accorded his technical sanction on 6.12.82. It was only after technical and administrative sanction were given by the Competent Authorities that the Engineer-in-Chief-cum-Addl. Commissioner- cum-Addl. Secretary of the lrrigation Department issued the work order on 26.11.83. The Executive Engineer merely performed the formality of executing the agreement. It therefore, cannot be said to be an independent decision or act of the Executive Engineer. It was only after technical and administrative sanction were given by the Competent Authorities that the Engineer-in-Chief-cum-Addl. Commissioner- cum-Addl. Secretary of the lrrigation Department issued the work order on 26.11.83. The Executive Engineer merely performed the formality of executing the agreement. It therefore, cannot be said to be an independent decision or act of the Executive Engineer. The action having been taken with the prior approval and sanction of the Tender Committee and the Chief Engineer in cordance with the provisions of the Bihar Financial Rules and PWD Code, it cannot be said that Executive Engineer was competent to concede to the claim of the contractor by giving no objection to the award merely because he had signed the agreement or had taken steps as a representative of the Government both before the Arbitrator and before the Court. It was further stated that although the State of Bihar was made party in the suit (Title suit No. 14/90) through the Secretary, Department of Irrigation, Government of Bihar, Patna, no notice was served on the Secretary by the Court nor any information was sent to him by the Executive Engineer. In fact, it was stated that there was no information in the Department that the Arbitrator had submitted his award. 11. Shir Pawan Kumar tried to make light of the submission of the counsel stating that in substance, the petitioner seeks to impugn the judgment of this Court on the same very materials which is not permissible. He stated- that the State of Bihar was made party through the Executive Engineer and therefore service of notice on him or application filed by him was sufficient compliance of the requirement. 12. The later submission of Shri Pawan Kumar has to be rejected summarily as being contrary to the record. The photo copy of the plaint of Title Suit No. 14 of 1990 unmistakably shows that State of Bihar was made party through the Secretary, Department of Irrigation. In the absence of any material to the contrary I am inclined to accept the submission made on behalf of the petitioners that the department was not informed about the filing of the award and therefore, giving no objection on 30.8.92 was without instructions of the government. In the absence of any material to the contrary I am inclined to accept the submission made on behalf of the petitioners that the department was not informed about the filing of the award and therefore, giving no objection on 30.8.92 was without instructions of the government. I am also inclined to accept the plea that in view of rule 221 (c) (1) of the Bihar Financial Rules, 1950 , Rule 294 fo the PWD Code Vol. I, as well as the provisions of the Irrigation Manual and administrative instructions of the Government, the Executive Engineer was not competent to concede to the claim of the contractor by giving no objection to the award and the plea in this regard does not appear to be after thought, as held by this Court. 13. No doubt, this court went into the question of the conduct and competence of Shri I.N. Singh and also did not record any adverse finding. The finding however, appears to have been recorded without considering that in terms of the Bihar Financial Rules, the PWD Code etc., the Executive Engineer was not competent to accept the tender and enter into an agreement, without the administrative and technical sanction of the competent authorities. If he could not enter into an agreement on his own, it would follow that he could not also accept the claim of the contractor on his own. Obviously, he had a limited jurisdiction and power and the fact that he participated in the proceedings before the Arbitrator and the court does not mean that he had full authority to even accede to the claim of the other side. He could not have assumed any such authority without the sanction of the concerned authority and contrary to the statutory Rules. The learned Judge also did not take into consideration the fact that the State of Bihar was represented through no less than the Secretary, Irrigation Department and therefore, the Executive Engineer could not have taken any step in derogation of the authority of the Secretary. In fact, it appears to me that notice of the filing of the award should have been sent to the Secretary. In any view, the Government Pleader or the Executive Engineer or on whosoever such notice was served, Should have informed the Secretary about the filing of the award. In fact, it appears to me that notice of the filing of the award should have been sent to the Secretary. In any view, the Government Pleader or the Executive Engineer or on whosoever such notice was served, Should have informed the Secretary about the filing of the award. It is an admitted position that no objection or petition of any kind by or on behalf of the Secretary was filed in the suit, and this fact was not taken into account by this Court. In Gulam Abbas and ore. V/s. Aulla Abdul Kadar and ors., (1970) 3 SCC 643 , the Supreme Court has held that failure to consider the circular having force of taw amounts to error, apparent on the face of record. 14. More important aspect of the case, not taken into consideration by this court, is that while the no objection is dated 30.8.92, the objection to the award under Section 30 of the Arbitration Act was filed on 2.9.92. i.e. later. In fact, the no objection was by way of a letter addressed to the 1st Subordinate Judge, Supaul in paragraph 4 of which he stated that he had no objection to the revised award. I wonder, whether it was open to the Subordinate Judge to act on the basis of such a letter ignoring altogether the objection formally filed under Section 30 of the Act. The personal letter of the Executive Engineer, in my opinion, could not be basis of the award and decree of the Court especially when objection had been filed in the case in court through the Asst. Government pleader. In any view, since the said objection was filed later in point of time, it must be held, it superseded the letter dated 30.8.92. It is to be kept In mind that both, the letter of no objection and the objection were by the same officer i.e. Shri I.N. Singh. 15. In my view, the Subordinate Judge did not show proper discretion in the matter. Without applying his mind, if I may say so, on the basis of similar no objection by the Assistant Government Pleader, he made the award rule of the Court in hot haste, completely ignoring the objection filed on 2.9.92. After objection to the award is filed, the court is required to follow a different procedure. This was not done. Without applying his mind, if I may say so, on the basis of similar no objection by the Assistant Government Pleader, he made the award rule of the Court in hot haste, completely ignoring the objection filed on 2.9.92. After objection to the award is filed, the court is required to follow a different procedure. This was not done. Unfortunately, this important aspect of the case escaped the. notice of the learned Single Judge white deciding the connected appeal. 16. In fairness to the Counsel for the opposite party I may briefly notice the decisions cited by him. The case of Lalji Khimji and ors. V/s. State of Gujrat, (1993) Supp. 3 SCC 567, at the first instance, seems to support the oppositel party. In that case the action of the Executive Engineer was held to be binding on the State. It however, appears that the Executive Engineer had taken the impugned action in exercise of statutory power under the Bombay Irrigation Act, 1879. The Supreme Court pointed out the distinction between the statutory contract and a contract under Article 299 of the, Constitution of India and held that in a case of statutory contract the State is bound "by the act of the person who has got statutory power to enter into contract and such contract is binding on it. The decisions in Dokka Samuel V/s. Dr. Jacab Lazarus Chelly, (1997) 4 SCC 478 and Shree Narayana Dharmasanghom Trust V/s. Swami Prakasananda and ors., (1997) 6 SCC 78 are not at ail relevant. In the first case omission to cite an authority of law by the counsel was held to be not an error apparent on the face of record. In the later case, the High Court had reviewed the earlier order rejecting in limine the civil revision in injunction matter after the SLP had been dismissed by the Supreme Court. It was held that the order of the courts below merged in the order of the Supreme Court and therefore the High Court could not review its earlier order. The decisions in Aribam Tuleshwar sharma V/s. Aribam Pishak Sharma and ors., AIR 1979 Supreme Court 1047 and Devaraju Pillai V/s. Sellayya Filial, AIR 1987 Supreme Court 1160 are also not relevant to the point. The decisions in Aribam Tuleshwar sharma V/s. Aribam Pishak Sharma and ors., AIR 1979 Supreme Court 1047 and Devaraju Pillai V/s. Sellayya Filial, AIR 1987 Supreme Court 1160 are also not relevant to the point. The former was a case of review of an order passed in a writ petition and in the later case another Judge interpreting the same document differently had held that it was a will and not deed of settlement and thus reviewed the judgment. The Supreme Court held that he had no such power. In Meera Bhanja (Smt.) V/s. Nirmala Kumari Choudhary (Smt.), (1995) 1 SCC 170 , the Supreme Court interpreting the expression "error apparent on the face of record" observed that if the review requires long drawn process of reasoning, it would amount to exercising appellate jurisdiction and not review jurisdiction. The judgment can be reviewed if by merely looking at the record, some error is discovered. The decisions cited on behalf of the opposite party were decided on their own facts. Indeed every case is decided on its own facts. 17. In the peculiar facts and circumstances of the case, I am of the view that the non-consideration 6f the vital materials and aspects does constitute error apparent on the face of record and provide sufficient reason within the meaning of Order 47 Rule 1 of the Code to warrant review. The judgment dated 6.8.96 in the connected appeal i.e. Misc. Appeal no. 39 of 1994 is, therefore, recalled. 18. In view of what I have said above, it is plain that the order and decree of the Subordinate Judge, Supaul dated 8.9.92 impugned in the connected appeal are fit to be set aside and, thus, there is no point in directing re-hearing of the appeal. The said order and decree passed in T.S. No. 14 of 1990 are accordingly set aside and the case is remanded to the Court below with a direction to proceed afresh in accordance with law on the basis of objection filed on 2.9.92 under Section 30 of the Arbitration Act. 19. In the result, this review petition is allowed in the terms mentioned above. I will make no order as to costs.