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2016 DIGILAW 123 (MAN)

Zenith Enterprises v. Food Corporation of India, represented By the Deputy General Manager, (Region)

2016-08-02

N.KOTISWAR SINGH, R.R.PRASAD

body2016
JUDGMENT & ORDER : RR PRASAD, J. By filing this Review Application, the judgment and order passed on 29.1.2016 in WA No.4/16 by the Division Bench dismissing the writ appeal, has been sought to be reviewed. 2. Before adverting to the submissions advanced on of the petitioner, the facts of the case need to be taken notice of. The Dy. General Manager, FCI had issued E-tender notice on 7.11.2015 calling upon the transporters to submit their bid papers for transporting food grains from the Rail Head, Jiribam to FCI FSD Sangaiprou and also from Rail Head Jiribam to FSD Koirengei. The petitioner, a proprietor of Zenith Enterprise and also the other firms, M/s Purbanchal Pvt. Limited, Gauhati submitted their tender papers. Both the firms were found to be qualified in technical bid. When the price bid was opened, the petitioner who had quoted the rate at Rs.4314/- per MT for transporting food grains from Rail Head, Jiribam to FCI FSD Koirengei, was found to be L-1. But, the tender committee on 23.12.2015 cancelled the E-tender notice dated 7.11.2015 by assigning reason that rate quoted by the petitioner is quite on higher side in comparison to rate previously accepted. On the same day, i.e. on 23.12.2015, another tender notice was issued inviting tenders from qualified bidders. Both the orders canceling E-tender notice dat. 7.11.2015 as well as order inviting fresh bids were challenged in a writ petition(c) No. 1069 which was dismissed by holding that recommendation of tender evaluation committee dt. 7.11.2015 cannot be interfered with as the same was passed in the interest of justice. That order was challenged in WA No. 4/16 which was also dismissed holding therein that non awarding of work to the petitioner found to be L-1 was quite justified as the rate quoted was found by the Tender Committee to be on quite higher side and that there has been no discrimination in awarding work order to the firm for transporting the food grains from Rail Head, Jiribam to FCI Sangaiprou Imphal as it was with respect to different route and thereby the Writ Appeal was dismissed on 29.1.2016 which is being sought to be quashed. 3. Mr. 3. Mr. M. Devananda, learned counsel appearing for the petitioner submits that tender submitted by the firm for transporting food grains from from Rail Head, Jiribam to FCI Sangaiprou (220 Kms) was also on higher side as the rate which has been quoted was Rs.16.40/MT/KM which was higher of Rs.3.58 whereas rate quoted by the petitioner for transporting food grains from Rail Head, Jiribam to FSD Koirengei (230 Kms) was on higher side as per the respondent by Rs.5.93 from the existing rate and thereby tender notice was cancelled whereas rate quoted by the firm on higher side for transporting food grains from Rail Head, Jiribam to FCI Sangaiprou was accepted though both the destinations are on same highway NH 37 and thereby act of the authority is quite discriminatory. But this fact was not considered by the appellate court in right perspective which may be on account of the fact that relevant documents could not be produced either before the Writ court or the appellate court. Now, the documents with respect to acceptance of the tender of the firm who has been awarded work for transporting food grains from Rail Head, Jiribam to FCI Sangaiprou has been filed in support of the case of the petitioner and thereby on account of the discovery of new documents which goes to prove the act of discrimination on the part of the authority, Review Petition can easily be maintained. In this regard, the learned counsel for the petitioner has referred to decision rendered in the case of Aribam Tuleshwar Sharma, Appellant vs. Aribam Pishak Sharma & Ors reported in AIR 1979 SC 1047 . 4. Upon hearing the learned counsel for the petitioner, the point for consideration is as to whether, in the facts and circumstances as stated above, order impugned is liable to be reviewed? 5. 4. Upon hearing the learned counsel for the petitioner, the point for consideration is as to whether, in the facts and circumstances as stated above, order impugned is liable to be reviewed? 5. It be stated that a case which has been made by the petitioner is that the petitioner submitted bid for transporting food grains from Rail Head, Jiribam to FSD Koirengei (230 Kms) quoting the rate which was found to be on higher side by tender committee and thereby cancelled the tender but on the other hand, the bid submitted by the firm for transporting food grains from Rail Head, Jiribam to FCI Sangaiprou (220 Kms) which was also on higher side, was accepted though route for transporting the food grains at which the destinations was the same. This fact was agitated by the petitioner in the writ court as well as before the Court of writ appeal. Both the courts having considered the facts and circumstances did not find any illegality in the order rejecting the tender concerning the petitioner as the bid amount was found to be quite in higher side. However, the tender submitted by the other firm for transporting food grains from Rail Head, Jiribam to FCI Sangaiprou though was also on higher side but according to the appellate court route/destination was different and thereby the court did not find any discrimination in the act of the authority. The same plea is being taken in the Review Application which plea in our view is not worth acceptable. It be stated that there is nothing in Art. 226 of the Constitution to preclude the High Court from exercising the powers of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But there are definite limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important fact or evidence which, in spite of the exercise of due diligence, was not within the knowledge of the person seeking review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found and it may also be exercised on any analogous ground. But it may not be exercised on the ground that the decision was erroneous on merit. This proposition has been laid down by the Hon’ble Supreme Court in case of Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma & Ors (supra). 6. Here, in the instant case order passed by the appellate court is being sought to be reviewed on its merit as the same fact upon which impugned order of cancellation of tender was sought to be quashed, is being taken by the petitioner in his favour, with only difference that the case of the petitioner gets support from the documents which could not be filed earlier. Filing of document hardly makes any difference so far as merit of the case is concerned as appellate court, after taking into account that the tender of the other firm which was also on higher side, was accepted but it has categorically been recorded that route/destination with respect to other tender was quite different and thereby it never happens to be that order is being sought to be reviewed on account of any error apparent on the face of the record rather it is being sought to be reviewed on its merit which is not permissible. Accordingly, we do not find this Review Application maintainable. Accordingly, it is dismissed.