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2021 DIGILAW 322 (MP)

Kalyan Toll Infrastructure Limited v. State of M. P.

2021-03-08

ANAND PATHAK, SHEEL NAGU

body2021
JUDGMENT : Anand Pathak, J. 1. Present review petition has been preferred by the petitioner seeking review of the order dated 16-12-2020 passed in Writ Petition No. 19466/2020 whereby the petition preferred by the petitioner has been dismissed. 2. Precisely stated facts of the case are that petitioner who is work contractor completed one project of respondents on 31-07-2004 and extension of time for completion of project was granted by the respondents under certain clauses of agreement without levy of compensation and therefore, according to petitioner, delay in completion of project was not attributable to the petitioner. Final bill was also paid on 12-01-2007, therefore, according to petitioner, contract was duly completed and there was no dispute between the parties till its completion. 3. It further appears that respondent No. 2 (Chief Engineer, Yamuna Kachhar Zone, WRD Gwalior) suo motu reviewed its earlier decision and passed the order dated 23-02-2007 holding that delay caused in completion of project was attributable to the petitioner and resultantly 1% of contract value be recovered as liquidated damages. 4. Being aggrieved by such action, petitioner preferred petition vide Writ Petition No. 8975/2012 which was dismissed vide order dated 18-11-2015 whereby this Court declined to go into merits of the matter and relegated the petitioner to avail the remedy of arbitration under the agreement. 5. It appears that petitioner did not approach the M.P. Arbitration Tribunal after the said order but resurfaced as litigant again before this Court by way of filing Writ Petition No. 19466/2020 when Executive Engineer of WRD-respondent No. 3 herein requested the revenue authority to recover the amount of Rs. 89.87 lacs from the petitioner which according to them is unduly made and excess payment to the petitioner. This Court vide order dated 16-12-2020 found the case repetitive in nature with same set of allegations and relief as sought earlier by way of Writ Petition No. 8975/2012 and after considering the fact situation as well as legal position, dismissed the petition with the direction to avail in house remedy of arbitration as directed in earlier round of litigation. 6. 6. It further appears that the petitioner instead of challenging the said order before the Apex Court, has preferred this review petition solely on the ground that contract includes both the parties, present petitioner as well as State Government and therefore, if the State Government has any grievance left as per contract then the State Government should approach Arbitration Tribunal and not otherwise. He again relied upon the judgment passed in the case of Baijnath Singh Vs. State of Madhya Pradesh and others, 2005 (3) MPLJ 540 which is based upon the decision of Apex Court in the case of State of Karnataka Vs. Shri Rameshwara Rice Mills, AIR 1987 SC 1359 . 7. According to learned counsel for the petitioner, the Court erred in passing the impugned order dated 16-12-2020 and therefore, deserves to review the same and recall it. 8. Per contra, learned counsel for the respondents/State opposed the prayer and submitted that once this Court in earlier round of litigation i.e. Writ Petition No. 8975/2012 decided the controversy and dismissed the petition vide order dated 18-11-2015 and relegated the petitioner to avail the remedy of arbitration before M.P. Arbitration Tribunal then no scope exist for the petitioner to file Writ Petition No. 19466/2020 by way of second round of litigation and if it is filed so then the Court has rightly dismissed the petition. No scope of review existed in the matter. 9. Heard learned counsel for the parties and perused the record appended to the petition. 10. In the case of Kamlesh Verma v. Mayawati and Others, (2013) 8 SCC 320 , principles relating to review jurisdiction have been laid down. The principles relating to review jurisdiction may be summarized as follows: When the review will be maintainable: (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record; (iii) Any other sufficient reason. The words "any other sufficient reason" have been interpreted in Chhajju Ram Vs. Neki, (1921-22) 49 IA 144 and approved by this Court in the case of Moran Mar Basselios Catholicos Vs. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The words "any other sufficient reason" have been interpreted in Chhajju Ram Vs. Neki, (1921-22) 49 IA 144 and approved by this Court in the case of Moran Mar Basselios Catholicos Vs. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 to mean "a reason sufficient on grounds at least analogous to those specified in the rule". When the review will not be maintainable: "(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case. (iv) Review is not maintainable unless the material error, manifest on the face of order, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. (vi) The mere possibility of two views on the subject cannot be a ground for review. (vii) The error apparent on the face of the record should not be an error which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate Court, it cannot be permitted to be advanced in the review petition. (ix) Reviews is not maintainable when the same relief sought at the time of arguing the main matter had been negatived." It is also held by the Apex Court in the case of State of West Bengal & Ors. Vs. Kamal Sengupta & Anr., (2008) 8 SCC 612 that mistake or error apparent on the face of the record means that mistake or error which is prima facie visible and does not require any detail examination. Erroneous view of law is not a ground for review and review cannot partake the category of the appeal. 11. If the pleadings of the case are tested on the anvil of said legal pronouncements, then it appears that petitioner has reiterated the submission referred in earlier two rounds of litigation and no substantive ground has been raised in review petition. 11. If the pleadings of the case are tested on the anvil of said legal pronouncements, then it appears that petitioner has reiterated the submission referred in earlier two rounds of litigation and no substantive ground has been raised in review petition. So far as reliance over the judgment of Hon'ble Apex Court in the case of Shri Rameshwara Rice Mills (supra) is concerned, the said case moves into different factual realm and here the petitioner is relegated to avail the remedy of in house arbitration/before M.P. Arbitration Tribunal and it is statutory body. Therefore, it is not a case where officer of State or respondents themselves are adjudicating the dispute, therefore, reliance over the said judgment is misplaced. 12. Testing the facts of the case on the touchstone of said legal position and when the factual contours are considered, then it appears that no case for review is made out. After due consideration, no error apparent on the face of record found to exist. Petitioner has already advanced his arguments in previous proceedings at length. No case for interference is made out under the limited scope of review. 13. Review petition sans merits and is hereby dismissed.