Bombay High Court
M/S. H.P. Ghumare Thr. Prop. ... vs State Of Maharashtra Thr. Prin. ... on 15 March, 2023
Bench: Sandeep V. Marne
904-RPW-ST-6714-2023 (3)-f
Pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
REVIEW PETITION ST. NO. 6714 OF 2023
IN
WRIT PETITION NO. 6394 OF 2021
M/s. H. P. Ghumare .. Petitioner
Versus
The State of Maharashtra & Anr. .. Respondents
Ms. Pradyna Talekar i/by Talekar & Associates for petitioner.
Mr. A. A. Kumbhakoni, Senior Advocate a/w Mr. P. P. Kakade,
Government Pleader a/w Mr. Akshay Shinde, "B" Panel a/w Mr.
M. M. Pabale, AGP for State.
CORAM: S. V. GANGAPURWALA, ACTING CJ. &
SANDEEP V. MARNE, J.
RESERVED ON: MARCH 10, 2023
PRONOUNCED ON : MARCH 15, 2023
P.C. [Per Sandeep V. Marne, J.]:
1. Petitioner seeks review of the judgment and order dated 16th
February 2023 by which the writ petition is rejected. Petitioner had
challenged rejection of its bid as being ineligible. The main
contention of petitioner in the writ petition was that its cumulative
work experience in past three years ought to have been taken into
consideration in terms of para 5.1 of the Government Resolution
dated 15th January 2021. This Court negated the contention and
upheld State Government's contention that bidders needed to
possess the prescribed work experience and turnover in any one of
the 5 years.
904-RPW-ST-6714-2023 (3)-f
2. Petitioner assailed the judgment under review before the
Supreme Court by filing Petition for Special Leave Petition (C) No.
4010 of 2023. When the SLP came up for hearing on 3rd March
2023, Petitioner withdrew the same. After the dismissal of the SLP
as withdrawn, petitioner has filed the present petition seeking
review of the judgment and order dated 16th February 2023.
3. The main point canvassed by Ms. Talekar, the learned counsel
appearing for petitioner, is that the cumulative reading of Condition
No. QC-5 together with paragraphs 5.1 and 5.3 of the Government
Resolution dated 15th January 2021 would demonstrate that
cumulative work experience and turnover of five years is required
to be taken into consideration for the purpose of determination of
eligibility of bidders in accordance with the district-sheet published
along with the tender. She however fairly admits that attention of
this Court was not invited to condition QC-5 during the course of
hearing of the Petition. According to her, since the issue goes to the
root of the matter, this court may permit her to raise the argument
based on condition QC-5 for the first time in review. She would
further submit that various documents and data that was supposed
to be submitted along with the bid would further make it explicitly
clear that cumulative figures of work experience and turnover of 5
years are required to be considered for determining eligibility.
4. Mr. Kumbhakoni, the learned senior advocate for the State
Government would oppose the petition submitting that the
contentions raised in review petition were raised and argued before
the Supreme court and that the SLP was withdrawn only after the
Court was about to dismiss the SLP. That therefore the review
petition is gross abuse of process of law. That the review is
essentially in the nature of an appeal. In support of his
submissions, Mr. Kumbhakoni would rely upon the Judgment in
904-RPW-ST-6714-2023 (3)-f
Perry Kansagra vs. Smriti Madan Kansagra, reported in (2019)
20 SCC 753.
5. After having heard the learned counsels for the parties, no
error in the judgment under review which is apparent on face of
record has been demonstrated. As fairly conceded by Ms. Talekar,
provisions of Condition No. QC-5 were never pressed into service
when the writ petition was argued. Therefore, review of judgment
cannot be sought by raising fresh pleas. Furthermore, what is
sought in review is essentially change of our opinion by seeking to
present a different interpretation about eligibility conditions than
the one we have taken while delivering the judgment, this, in our
opinion, would be outside the scope of review. Thus, the review
petition is more in the nature of an appeal. As held by the Apex
Court in Perry Kansagra (supra), a review Court does not sit in
appeal over its order and that once a judgment is signed or
pronounced, it should not be altered.
6. Also, even if we were to travel beyond the permissible scope
of review, we are not able to hold that cumulative work experience
and turnover of five years can be taken into consideration for
determining the eligibility of bidders, even after taking into
consideration provisions of condition QC-5. Therefore, even on
merits, no case is made out for review of the judgment.
7. As observed above, the present petition is in the nature of an
appeal over the judgment which is sought to be reviewed.
Correctness of the judgment was tested before the Apex Court. The
petitioner has chosen to withdraw the SLP, which is dismissed as
withdrawn. Though dismissal of SLP would not act as a bar for
entertaining review petition, we are of the considered view that no
case is made out in the present petition for review of the judgment.
904-RPW-ST-6714-2023 (3)-f
8. No case is thus made out for review of the judgment. The
Review Petition being devoid of merits, is dismissed without any
SALUNKE order as to costs.
JV
Digitally signed
by SALUNKE J V
Date: 2023.03.15
14:58:40 +0530
(SANDEEP V. MARNE, J.) (ACTING CHIEF JUSTICE)
