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2021 DIGILAW 595 (UTT)

PANCHGHATI CONSTRUCTION v. DALIP SINGH ADHIKARI

2021-11-23

ALOK KUMAR VERMA, RAGHVENDRA SINGH CHAUHAN

body2021
JUDGMENT (per Hon'ble Sri Alok Kumar Verma, J.) This review application has been filed to review the judgment, dated 22.09.2021, passed by this Court in Special Appeal No. 300 of 2020, M/s. Panchghati Construction vs. M/s Dalip Singh Adhikari and others. 2. The brief facts of this case, which are necessary to notice for deciding the present review application, are that, by tender notice dated 04.12.2019, the Uttarakhand Rural Road Development Agency, the respondent no.2, had invited bids for construction of motor road (Package No.UT-402) (Upgradation) from Banku to Salla-Pasam, for a length of 13.00 Kms. Pursuant to the tender notice, four bidders had applied for the same. On 28.01.2020, the technical bids of all the four bidders were evaluated by the Technical Committee. While the Technical Committee approved the technical bids of three bidders, namely M/s Panchaghati Construction (the appellant before this Court), M/s Dalip Singh Adhikari (the petitioner before the Writ Court), M/s L.D. Binwal, the Technical Committee rejected the technical bid of A.R. Thermosets Pvt. Ltd. 3. M/s Panchaghati Construction, the respondent No.5, and the appellant before this Court, filed a complaint on 03.02.2020 against the petitioner M/s Dalip Singh Adhikari, ostensibly, on the ground that the legal status of the partnership firm of the petitioner was unclear. Immediately, on 04.02.2020, the petitioner, M/s Dalip Singh Adhikari submitted its objections to the complaint. In its objection, the petitioner admitted that there has been a change in the 3 composition, as the members of the partnership firm had increased. However, the change in the number of partners does not change “the legal status" of the partnership firm. 4. Disagreeing with the reply submitted by the petitioner, by order dated 03.03.2020, the Technical Evaluation Committee, declared the petitioner's bid as non-responsive on the ground of “doubtful legal status". On 07.03.2020, the financial bid was opened. It was discovered that the respondent No.5, M/s Panchghati Construction is the lowest bidder. 5. Meanwhile, since the petitioner was aggrieved by order dated 03.03.2020, it filed a writ petition before the learned Single Judge. Although, the petitioner had also filed a stay application, this Court declined to grant any stay in favour of the petitioner. Therefore, by order dated 05.09.2020, the Procurement Evaluation Committee recommended that the bid of the respondent No.5, M/s Panchghati Construction, should be accepted. Although, the petitioner had also filed a stay application, this Court declined to grant any stay in favour of the petitioner. Therefore, by order dated 05.09.2020, the Procurement Evaluation Committee recommended that the bid of the respondent No.5, M/s Panchghati Construction, should be accepted. However, it was an admitted fact that despite the said recommendation, no work order was issued to the respondent No.5. 6. After hearing all the learned counsel for the parties, by order dated 18.11.2020, the learned Single Judge allowed the writ petition, and set-aside the order dated 03.03.2020. 7. Since the review applicant – appellant was aggrieved by order dated 18.11.2020, it had filed the Special Appeal No. 300 of 2020 before this Court. At the time of the hearing of the said appeal, this Court observed that even as of today, i.e. time of the hearing, no work order was issued to the appellant. After hearing the parties at length, the order dated 22.09.2021, under review, was passed by this Court, by which the Special Appeal was dismissed. 8. Heard Mr. Sanjay Bhatt, learned counsel for the review applicant, and perused the judgment under review. 9. Mr. Sanjay Bhatt, the learned counsel for the review applicant (appellant in the Special Appeal No.300 of 2020), submits that the partner of the firm, respondent No. 1, namely M/s Dalip Singh Adhikari, is highly influential person, who used to obtain work by playing fraud. A work contract of almost Rs. 123 crores was obtained by the respondent No. 1 by annexing forged documents. After inquiry, a detailed report was submitted by the Chief Engineer, Kumaun, on 15.06.2017. On the basis of the Inquiry Report dated 15.06.2017, a First Information Report was registered against the partner of the respondent No. 1 under Sections 420, 467, 468 and 471 of IPC. However, subsequently, the Trial Court discharged him. Though the discharge order, passed in the said criminal case, has attained finality, the fact remains that the respondent no.1 had misappropriated the public money. 10. Mr. However, subsequently, the Trial Court discharged him. Though the discharge order, passed in the said criminal case, has attained finality, the fact remains that the respondent no.1 had misappropriated the public money. 10. Mr. Sanjay Bhatt, the learned counsel for the review applicant, has relied upon the following judgments of the Hon'ble Supreme Court:- (1) AIRONLINE 2020 SC 959 (2) AIRONLINE 2020 SC 466 (3) AIR 2016 SC 4305 (4) AIR 2016 SC 4946 (5) AIR 1998 SC3085 (6) (2007) 14 SCC 517 (7) AIR 1996 SC 2160 (8) AIR 2000 SC 1287 (9) AIR 1996 SC 51 (10) AIR 1996 SC 11 11. At this stage, it is necessary to refer to the provisions of Rule 1 of Order XLVII of the Code of Civil Procedure. Rule 1 of Order XLVII of the Code of Civil Procedure reads as under:- 1. Application for review of judgment- (1) Any person considering himself aggrieved- (a) by a decree or Order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or Order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of 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 made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or Order made against him, may apply for a review of judgment of the Court which passed the decree or made the Order. (2) A party who is not appealing from a decree or Order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. [Explanation-The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. 12. The judgments, cited by the learned counsel for the review applicant, are not applicable in the present matter as these judgments are not related to the review proceedings. 13. It is well settled that a review is not an appeal. The limitation on exercise of the powers of review are well settled. The first and foremost requirement for entertaining a review application is that the order, review of which is sought, suffers from any error apparent on the face of the order. In the absence of any such error, finality attached to the judgment cannot be disturbed. 14. In State of West Bengal and others vs. Kamal Sen Gupta and Another, [ (2008) 8 SCC 612 ], the Hon'ble Supreme Court observed that the term “mistake or error apparent" by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record. 15. In view of the ratio laid down by the Hon'ble Supreme Court in Patel Narshi Thakershi and others vs. Shri Pradyumansinghji, AIR 1970 SC 1273 , the power of review can be exercised for correction of a mistake. Such power can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. 16. In Lilly Thomas vs. Union of India, (2000) 6 SC 224, the Hon'ble Supreme Court observed and held that the power of review can be exercised for correction of a mistake but not substitute a view. 17. The mere possibility of two views on the subject is not a ground for review. 16. In Lilly Thomas vs. Union of India, (2000) 6 SC 224, the Hon'ble Supreme Court observed and held that the power of review can be exercised for correction of a mistake but not substitute a view. 17. On a very reading of Rule 1, it is also apparent that any person considering himself as aggrieved by an order may apply for review provided he has to establish that he “from the discovery of 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 order was made". The person applying for review the order has to satisfy that he is aggrieved by the order, and also that he was not in the position to bring the fact earlier. 18. The applicant had an opportunity to raise all his contentions on the previous occasion. When a question of fact is produced before the party, the party is free to decide it in any way that he thinks proper. Failure to raise a plea does not constitute an error apparent on the face of the record or a ground for review. Failure to argue any point by the counsel is not ground for review and grounds not taken earlier cannot be allowed to be taken in the review application. Similarly, it is not open to the review applicant to seek review of the order even on the grounds already rejected by this Court. It is settled position that the review applicant cannot re-argue the matter in the guise of review application. The review cannot be treated as an appeal in disguise. 19. Under these circumstances, this Court is of the view that it is an attempt to re-argue the matter, therefore, there is no ground to entertain this review application. The review application is liable to be rejected; the same is rejected at the admission stage.