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2019 DIGILAW 231 (UTT)

Aditya Sah v. State of Uttarakhand

2019-03-25

N.S.DHANIK, RAMESH RANGANATHAN

body2019
JUDGMENT : Ramesh Ranganathan, J. This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (M/S) No. 739 of 2019 dated 18.03.2019. 2. The appellant herein filed Writ Petition (M/S) No. 739 of 2019 seeking a writ of certiorari to quash the order passed by the Tender Evaluation Committee through its Chairman (the District Collector, Bageshwar) dated 15.03.2019, whereby the technical bid submitted by the petitioner was rejected; and for a mandamus directing the respondents to open and consider the financial bid of the petitioner for the IMFL shop at Bageshwar. 3. The appellants-writ petitioner had invoked the jurisdiction of this Court contending that rejection of their technical bid was contrary to the tender condition itself. In the order under appeal, the learned Single Judge has noted that “after arguing for a while, learned counsel for the petitioners confined his prayer only to the extent that petitioners are permitted to avail the alternative remedy provided under Section 11 of the U.P. Excise Act, 1910, and the respondent authority be directed to take a decision on the petitioner’s appeal/revision.” The learned Single Judge, thereafter, observed that the innocuous prayer made by the learned counsel for the petitioners was allowed and, in case the petitioner prefers an appeal/revision under Section 11 of the U.P. Excise Act within two days, the same shall be decided by the authorities within a period of thirty days from the date of production of a certified copy of the order along with the revision/appeal. The learned Single Judge further directed that the decision so taken by the authority concerned, on the petitioner’s application, shall be communicated to the petitioners at the earliest. Aggrieved thereby, the present appeal. 4. Sri Sandeep Kothari, learned counsel for the appellants-writ petitioners, would question the order of the learned Single Judge on two grounds, firstly that the appellant had not made any such concession before the learned Single Judge; and secondly that, even if it is presumed that such a concession had been made, consent would not confer jurisdiction; and, since Section 11 of the U.P. Excise Act does not provide for an appeal against rejection of the appellant-writ petitioner’s technical bid, the Excise Commissioner would lack jurisdiction to entertain such an appeal under Section 11 of the U.P. Excise Act. 5. 5. The first contention of Sri Sandeep Kothari, learned counsel for the appellants-writ petitioners, that he never made any such concession before the learned Single Judge, has been considered in State of Maharashtra vs. Ramdas Srinivas Nayak : (1982) 2 SCC 463 , wherein the Supreme Court observed: “…….When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submissions made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation". Per Lord Atkinson in Somasundaran v. Subramanian A.I.R. 1926 P.C. 136 We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is' incumbent, upon the party, while the matter is still fresh in the minds of the judges, to call attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. Per Lord Buckmaster in Madhusudan v. Chanderwati A.I.R. 1917 P.C. 30 That is the only way to have the record corrected. Per Lord Buckmaster in Madhusudan v. Chanderwati A.I.R. 1917 P.C. 30 That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment. In Rev. Mellor 7 Cox. C.C. 454 Martin B was reported to have said “we must consider the statement of the learned judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity”. In King Emperor v. Barendra Kumar Ghost 28 C.W.N. 170 said: “...these proceedings emphasise the importance of rigidly maintaining the rule that a statement by a learned judge as to what took place during the course of a trial before him is final and decisive; it is not to be criticized or circumvented; much less is it to be exposed to animadversion.” In Sarat Chandra v. Bibhabati Debi 34 C.L.J. 302. Sir Asutosh Mookerjee explained what had to be done: ….It is plain that in cases of this character where a litigant feels aggrieved by the statement in a judgment that an admission has been made, the most convenient and satisfactory course to follow, wherever practicable, is to apply to the Judge without delay and ask for rectification or review of the judgment. So the judges, record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the judge himself, but nowhere else. ….emphasis supplied” 6. The only remedy therefore for the appellant, in case he is justified in his submission that he never made such a concession, is to file an application seeking review of the order before the learned Single Judge himself, and bring it to his notice that he had never made such a concession as recorded in the order under appeal. The only remedy therefore for the appellant, in case he is justified in his submission that he never made such a concession, is to file an application seeking review of the order before the learned Single Judge himself, and bring it to his notice that he had never made such a concession as recorded in the order under appeal. It would be wholly inappropriate for any other Court, including an appellate Court, to examine whether or not the appellants-writ petitioners had made such a concession before the learned Single Judge. 7. The second contention of Sri Sandeep Kothari, learned counsel for the appellants-writ petitioners, is that the appellants-writ petitioners do not have a remedy of preferring an appeal/revision under Section 11 of the U.P. Excise Act, 1910 and, even if he is presumed to have so consented, his consent would not confer jurisdiction on the Excise Commissioner to entertain the appeal/revision. 8. Section 11 of the U.P. Excise Act, 1910 relates to appeals and revisions, and Sub-Section (1) thereof provides that the Collector and every other Excise Officer (not being the Excise Commissioner) shall, in respect of all proceedings under the Excise Act, be subject to the control of the Excise Commissioner and “all orders passed” by the Collector or such other officer under the Act, shall be appealable to the Excise Commissioner in the manner prescribed by the rules made by the State Government in that behalf. 9. The submission of the learned counsel is that it is only in respect of proceedings under the Excise Act that an appeal would lie against the order of the District Collector to the Excise Commissioner; and, since the order of the District Collector in the present case was not qua the provisions of the U.P. Excise Act but as the Chairman of the Tender Evaluation Committee, no appeal would lie under Section 11 of the said Act. We must express our inability to agree. 10. While the first limb of Section 11 (1) of the U.P. Excise Act makes the Collector and every other Excise Officer, in respect of all proceedings under the U.P. Excise Act, to be subject to the control of the Excise Commissioner, the second limb provides that all orders passed by Collector under the U.P. Act, 1910 shall be appealable to the Excise Commissioner. By use of the words “all orders passed by the Collector”, the legislature has provided for an appeal against all forms of orders passed by the Collector under the Act. 11. The order passed by the District Collector, rejecting the petitioner’s technical bid, is with respect to allotment of an IMFL shop, which, undoubtedly, falls within the ambit of the U.P. Excise Act. We are satisfied, therefore, that an appeal would lie even against such an order under Section 11 of the U.P. Excise Act, 1910. The contention that the appellants cannot, by their consent, confer jurisdiction on the Excise Commissioner to entertain an appeal is, therefore, wholly untenable. 12. Leaving it open to the appellants-writ petitioners, if they so choose, to file an application for review before the learned Single Judge, and to satisfy him that no such concession had been made, the appeal fails and is, accordingly, dismissed. No costs.