Sri Bhupen Chandra Das vs The State Of Assam And 4 Ors
2021 Latest Caselaw 2313 Gua

                                                               Page No. 1/12

GAHC010033382020




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : Review. Pet./25/2020

         SRI BHUPEN CHANDRA DAS
         SECRETARY, NAMAH SUDRA FISHERY CO-OPERATIVE SOCIETY LTD., S/O-
         LATE BHOGI RAM DAS, R/O- NATUN BASTI, P.O. PALASHBARI, DIST.-
         KAMRUP, PIN- 781128.

         VERSUS

         THE STATE OF ASSAM AND 4 ORS
         REP. BY THE COMMISSIONER AND SECRETARY, FISHERY DEPARTMENT,
         DISPUR, GOVT. OF ASSAM, GUWAHATI- 781006.

         2:THE DEPUTY COMMISSIONER
          KAMRUP
         AMINGAON
         ASSAM
          PIN- 781039

         3:THE ADDITIONAL DEPUTY COMMISSIONER
          REVENUE FISHERY BRANCH KAMRUP
         AMINGAON
         ASSAM
          PIN- 781039

         4:THE DISTRICT FISHERY DEVELOPMENT OFFICER
          P.O. AND DIST.- KAMRUP
         ASSAM
          PIN- 781031.

         5:SRI RAM PRASAD MALODAS
          SECRETARY
          BAHARI RESERVE GAON MIN SAMABAI SAMITI LTD.
          R/O- VILL.- BAHARI RESERVE
          P.O. BAHARIHAT
          P.S. TARABARI
                                                                                           Page No. 2/12

              DIST.- BARPETA
              ASSAM
              PIN- 781302

Advocate for the Petitioner     : MR. M H ANSARI

Advocate for the Respondent : GA, ASSAM

                                     BEFORE
                    HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                               ORDER

Date : 27-09-2021

Heard Mr. K.K. Mahanta, learned Senior Counsel assisted by Mr. M.H. Ansari, learned counsel for the review petitioner. Also heard Mr. D. Nath, learned Senior Government Advocate for the respondent nos. 1-4 and Mr. D. Das, learned Senior Counsel assisted by Mr. K. Mohammed, learned counsel for the respondent no. 5.

2. Three writ petitions - (i) W.P.(C) no. 4896/2017 (ii) W.P.(C) no. 5001/2017 and (iii) W.P.(C) no. 7934/2017 - came to be filed in connection with a process initiated for settlement of III-A Lower Part Brahmaputra Meen Mahal (the Fishery, for short) in Kamrup district for a settlement period of 7 (seven) years. The two writ petitions, W.P.(C) no. 4896/2017 and W.P.(C) no. 7934/2017 were filed by the present respondent no. 5 whereas the W.P.(C) no. 5001/2017 was filed by the present review petitioner. The process of settlement of the Fishery was initiated by a Notice Inviting Tender (NIT) dated 29.06.2017. It may be stated that 6 (six) bidders including the present review petitioner and the present respondent no. 5, submitted their bids in response to the NIT. It may be mentioned that the NIT stipulated for submission of a number of documents including (i) Fishing Experience Certificate;

(ii) Caste Certificate in proof of belonging to Scheduled Caste/Maimal Community; and (iii) Bakijai Certificate issued by the Deputy Commissioner concerned. The settling authority after opening the bids, evaluated the same and prepared a comparative statement. The present respondent no. 5 as a bidder, offered a bid value of Rs. 1,48,47,777/- for the period of 7 (seven) years. In terms of the rates

offered by the six bidders, the respondent no. 5 stood as the 3 rd highest bidder. The 1st highest

bidder, 2nd highest bidder and 4th highest bidder were adjudged disqualified. The present respondent no. 5 was also declared as not qualified for non-submission of the Experience Certificate and the Bakijai Certificate. As per the comparative statement, the present review petitioner offered Rs. 36,47,000/- and he was declared as the highest valid bidder as he submitted all the required Page No. 3/12

documents. His bid value was 5th highest.

3. Aggrieved by such disqualification, the present respondent no. 5 preferred the two writ petitions (supra). The main grounds for preferring the writ petitions were that the respondent authorities were wrong in holding that Fishing Experience Certificate and Bakijai Certificate were not submitted by the writ petitioner therein i.e. the present respondent no. 5 herein along with the bid. It was contended that those two documents were submitted along with the bid.

4. All the three writ petitions came to be considered by the Court on 29.05.2018 and the original records of settlement were produced by the learned Standing Counsel, Fishery Department on that day. After hearing the learned counsel for the parties and upon perusal of the records in original, the Court disposed of all the three writ petitions by a common order dated 29.05.2018.

5. Mr. Mahanta, learned senior counsel for the review petitioner has submitted that the learned Single Judge had erred in holding that the respondent no. 5 had submitted a valid Bakijai Certificate along with the bid. Referring to Bakijai Certificate (Annexure-2 to the review petition), he has submitted that it was a certificate which was stated to have been available in the records. The assailment on the Bakijai Certificate is made on three grounds :- (a) the Bakijai Certificate did not contain any signature of the members of the Tender Evaluation Committee, thus, making it apparent that the said document was, later on, interpolated in the records and for the said reason, the Committee recorded about its non-submission in the comparative statement; (b) the Fishery is located in the district of Kamrup whereas the Bakijai Certificate, stated to have been submitted by the respondent no. 5, was issued by the Deputy Commissioner, Barpeta district; and (c) the Bakijai Certificate was issued in favour of the Secretary, Bahri Reserve Gaon Meen Samabai Samittee Ltd. and not in the name of the said Society. Having referred so, Mr. Mahanta submitted that there is error apparent on the face of the record and the same is needed to be rectified by way of review. The Court had recorded its finding on the Bakijai Certificate without recording any reason, thereby, foreclosing the option for the settling authority to make any further consideration on the said Bakijai Certificate. As a result, immense prejudice has been caused to the review petitioner.

6. In response, Mr. Das, learned senior counsel for the respondent no. 5 has submitted that by order dated 29.05.2018, the Court while disposing of the three writ petitions, had remanded the matter of settlement to the settling authority with a direction to make a fresh consideration on the Page No. 4/12

aspects observed by the Court, within a period of 3 (three) weeks from 29.05.2018. It was observed that the settlement of the Fishery would follow the decision taken after fresh consideration on the two aspects, stated in the order, and the settlement of the Fishery was directed to be made to the highest valid bidder. It is submitted by him that on 29.05.2018, the learned State counsel produced the records of settlement before the Court. Before going through the records of settlement by the Court, the Court permitted all the learned counsel appearing for the parties to go through the records and to make submissions thereafter. Mr. Das has submitted that all the learned counsel for the parties including the learned counsel assisting him, had the opportunity to go through the records of settlement. It was only after going through the records of settlement, all the learned counsel including the learned counsel for the petitioner therein, had made their submissions. After the said order dated 29.05.2018, the review petitioner had preferred another writ petition, W.P.(C) no. 5185/2018 seeking inter alia, directions not to settle the Fishery in favour of respondent no. 5 and to settle the Fishery in its favour. In the said writ petition, the petitioner therein i.e. the review petitioner had alleged about manipulation of settlement records in respect of the Fishery. The said writ petition, W.P.(C) no. 5185/2018 was disposed of by an order dated 30.08.2018 with the direction to the settling authority to finalize the settlement process of the Fishery in question under the supervision of Additional Chief Secretary to the Government of Assam, In-charge of the Fishery Department. Subsequently, the settlement order came to be passed on 08.10.2018 settling the Fishery in favour of the respondent no. 5 for a period of 7 (seven) years. The said settlement order has been assailed by the present review petitioner in a writ petition, W.P.(C) no. 7691/2018 and the said writ petition is pending as on date. When the writ petition, W.P.(C) no. 7691/2018 was moved on 12.11.2018 and a prayer for interim relief was made, the Court declined the prayer for interim relief by recording reasons. It was only on 11.02.2020, the instant review petition has been filed. Submitting as above, Mr. Das has submitted that after failing on different attempts the review petitioner has preferred this review petition. It is his submission that the petitioner has abjectly failed to make out any ground for review. Even it is assumed that the Court in its order dated 29.05.2018 had not recorded any reason the same by itself would not give rise to an occasion to prefer a review petition. The present review petition tantamounts to an appeal in disguise, he submits.

7. Mr. Das, learned Senior Counsel for the respondent no. 5 has referred to the decision of the Hon'ble Supreme Court in Devaraju Pillai vs. Sellayya Pillai, reported in (1987) 1 SCC 61, to press home the point that when the learned Single Judge who heard the three writ petitions earlier on 29.05.2018, had considered the document (Bakijai Certificate) and construed the same in a particular Page No. 5/12

way this Court on an application filed for review of the order dated 29.05.2018, cannot construe the document differently as it would amount to virtually sitting in judgment over the decision of the earlier learned Single Judge. Taking a different view on a construction of a document in review would upset the judgment of the earlier Single Judge and the same is not permissible in review. He has further referred to the decision of the Hon'ble Supreme Court in Jain Studios Ltd. vs. Shin Satellite Public Co. Ltd., reported in (2006) 5 SCC 505, for the settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court and in review jurisdiction, the original matter cannot be re-heard. Mr. Mahanta, learned Senior Counsel for the review petitioner has submitted that there is no dispute to the settled position of law as regards review, as reiterated in the aforesaid decisions. He has submitted that the Court had not considered the contents of the document in question while holding the view that no further consideration on the said document was necessary and as such, the position is different in the case in hand.

8. I have duly considered the submissions of the learned counsel for the parties and also perused the materials on record. I have also gone through the averments made in the review petition and the affidavit-in-opposition filed on behalf of the respondent no. 5.

9. To appreciate the issues raised in this review petition preferred by the review petitioner, who was a respondent in W.P.(C) no. 4896/2017 and W.P.(C) no. 7934/2017 and the writ petitioner in W.P. (C) no. 5001/2017, it would be apposite to re-produce the relevant portion of the common order dated 29.05.2018 hereinbelow -

"4. On the controversy raised, this Court is of the view that the determination of this case hinges on the aspect as to whether the petitioner had indeed submitted the said two documents along with the Tender papers. To ascertain the same, records in original, produced by Mr. SS Roy, learned Standing Counsel, Fishery Department, is perused. From the records, it appears that insofar as the Bakijai Certificate is concerned, the same was mixed up with the Tender papers of one of the bidder, namely, Sri Gobinda Sarkar. The records at least show that there is a Bakijai Certificate in the name of the petitioner and which forms part of the record. Insofar as the Experience Certificate is concerned, it is seen that the Certificate as found in the records pertains to an individual member i.e. the Secretary of the Society certifying that he is a Member of the Society belonging to Scheduled Caste and he is an actual fisherman.

5. Having regard to the contents of the said Certificate, the point for determination is Page No. 6/12

whether the said certificate can be construed as an Experience Certificate inasmuch as, the said Certificate makes no mention about any experience. This aspect of the matter has to be considered by the respondents before passing final order of settlement in favour of the valid highest bidder. This aspect of the matter with regard to the Experience Certificate is also the point urged by Mr. Dutta. In addition, Mr. Dutta also submits that as part of the Tender documents, the Caste Certificate was also required to be submitted. It is contended that the petitioner had neither submitted the Experience Certificate showing that the Society in question had the requisite experience nor the Caste Certificate certifying that the Members of the Society belong to the Scheduled Caste/ Maimal Community.

6. Records in original do not show any Certificate issued in favour of the Society in question certifying that the Members of the Society belong to Scheduled Caste/ Maimal Community. If the document at page-35 of the writ petition [W.P.(C) no. 4896/2017] is construed to be the Certificate, the same do not make any mention that the Members of the Society belong to the Scheduled Caste/ Maimal Community.

7. Having regard to the contents of the said Certificate, the respondents are also required to consider whether the document at page-35 of the writ petition fulfills the requirement of a valid Caste Certificate, as required for the purpose of making settlement.

8. On the above two counts, let a fresh decision be taken by the State respondents on the basis of the records available as to whether the petitioner had submitted the documents fulfilling the requirement of Experience Certificate in the name of the Society in question as well as Caste Certificate certifying the status of the Members of the Society in question along with the Tender for the purpose of settlement. Insofar as the issue with regard to Bakijai Certificate is concerned, no further consideration is to be made by the State respondents as the Bakijai Certificate of the petitioner is part of the records, though it was mixed up with the Tender papers of the one of the bidder i.e. Sri Gobinda Sarkar.

9. The present writ petition i.e. W.P.(C) no. 4896/2017 stands disposed of with a direction to the State respondents to make a fresh consideration on the aspects alluded to above within a period of 3 (three) weeks from today. Settlement of the Fishery in question will follow the decision taken after making fresh consideration on the aforesaid two aspects.

10. In view of the order passed today, no further order is required to be passed in W.P. (C) no. 7934/2017 as well as in W.P.(C) no. 5001/2017. It is made clear that settlement of the Fishery shall be made to the highest valid bidder after completing the exercise as indicated above. All three writ petitions stands accordingly disposed of."

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10. It would also be apposite to mention the events which occurred subsequent to the passing of the afore-mentioned order dated 29.05.2018. With the disposal of the three writ petitions - W.P.(C) no. 4896/2017, W.P.(C) no. 7934/2017 and W.P.(C) no. 5001/2017 - by the common order dated 29.05.2018, the matter of settlement stood remanded to the State respondents as a direction was made to the State respondents to make a fresh consideration on the aspects stated therein within a period of 3 (three) weeks from 29.05.2018 and to make settlement of the fishery in favour of the highest valid bidder after making such fresh consideration.

11. The present review petitioner as a writ petitioner had preferred another writ petition, W.P.(C) no. 5185/2018 immediately thereafter seeking the following reliefs :-

"1. A writ in the nature of mandamus directing the respondents to register criminal case against respondent No. 7 and all other erring officials involved in falsification and manipulation of records pertaining to the settlement of 3(A) Lower Part Brahmputra Min Mahal Fishery by lodging an FIR.

2. A writ in the nature of mandamus directing the respondents not to settle the 3(A) Lower Part Brahmputra Min Mahal Fishery with the respondent No. 8 and of set aside any order settling the 3(A) Lower Part Brahmputra Min Mahal Fishery with the respondent No. 8.

3. A writ in the nature of mandamus directing the respondents to settle the 3(A) Lower Part Brahmputra Min Mahal Fishery with the petitioner on the basis of its highest valid bid.

4. Pass such further or other order as Your Lordships may deem fit and proper in the interest of justice and to grant complete relief to the petitioner."

The respondent no. 8 therein was the present respondent no. 5.

12. In the affidavit-in-opposition filed by the respondent no. 5, an order dated 30.08.2018 passed in the writ petition, W.P.(C) no. 5185/2018 has been annexed. From the said order, it is noticed that in the said writ petition, W.P.(C) no. 5185/2018, it was argued on behalf of the petitioner therein i.e. the review petitioner herein that to deny the settlement of the Fishery to the petitioner, records had been tampered to show that the tender submitted by the petitioner was not valid, and thereby, to disqualify the petitioner so that the settlement of the Fishery could be granted in favour of the respondent no. 8 therein i.e. the present respondent no. 5 herein. During the hearing held on 30.08.2018, the records of settlement were produced before the Court. In the order dated 30.08.2018 whereby the writ Page No. 8/12

petition, W.P.(C) no. 5185/2018 was disposed of, it was reflected that the records so produced, were perused by the Court. The Court was of the view that interference at that stage might not be justified since settlement order was not issued till then. The writ petition was disposed of with a direction to the settling authority to finalize the settlement process for settlement of the Fishery by taking note of the grievances expressed by the petitioner therein, under the supervision of the Additional Chief Secretary to the Government of Assam, In-Charge of Fishery Department.

13. After disposal of the writ petition, W.P.(C) no. 5185/2018, the order of settlement dated 08.10.2018 in respect of the Fishery came to be passed under the hand of the Additional Chief Secretary to the Government of Assam, Fishery Department. The order of settlement observed that after verification of the relevant documents in the file the present respondent no. 5 was found to be the highest valid bidder and their bid value at Rs. 1,48,47,777/- for a period of 7 (seven) years was found to be the highest valid bid. Accordingly, the Fishery was settled with the present respondent no.

5.

14. Aggrieved by and dissatisfied with the said order of settlement dated 08.10.2018, the present review petitioner as the writ petitioner has assailed its legality and correctness in another writ petition, W.P.(C) no. 7691/2018. From the order dated 12.11.2018 passed by the Court, appended to the affidavit-in-opposition of the respondent no. 5, it is noticed that when the writ petition was moved, the petitioner had contended that there was manipulation of records in the course of settlement whereby Fishing Experience Certificate and Bakijai Clearance Certificate of the respondent no. 7 therein i.e. the present respondent no. 5 herein were placed in the record at a subsequent stage. Contention was also made to the effect that there were no initials in the Bakijai Clearance Certificate issued by the office of the Deputy Commissioner, Barpeta in favour of the respondent no. 7 therein i.e. the present respondent no. 5 herein. Submission was advanced that it prima facie indicated that the document was not available at the time of evaluation of tenders. It was further contended that the said two certificates cannot be considered because those were issued by the authorities of Barpeta district whereas the Fishery is situated in Kamrup (Rural) district. While directing the learned State counsel to produce the settlement record on the returnable date, the Court declined the prayer made on behalf of the petitioner therein for stay of the order of settlement dated 08.10.2018. It was observed that the order of settlement dated 08.10.2018 would be subject to the outcome of the writ petition, W.P.(C) no. 7691/2018.

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15. From the above, it has emerged that the review petitioner before undertaking this journey seeking invocation of the review jurisdiction, has already preferred two writ petitions, W.P.(C) no. 5185/2018 and W.P.(C) no. 7691/2018 after passing of the common order dated 29.05.2018. The first writ petition, W.P.(C) no. 5185/2018 was preferred immediately after the passing of the order dated 29.05.2018 and while disposing of the said writ petition on 30.08.2018, the records of settlement were perused. The second writ petition, W.P.(C) no. 7691/2018 has been preferred after passing of the order of settlement dated 08.10.2018. It is submitted at the bar that the second writ petition, W.P. (C) no. 7691/2018 is pending as on date. The Court by order dated 12.11.2018, had already directed to produce the records of settlement.

16. On perusal of the order dated 12.11.2018 passed in the writ petition, W.P.(C) no. 7691/2018 it transpires that some of the grounds taken in this review petition, have already been agitated in the previous two writ petitions, filed by the review petitioner.

17. It is worthwhile to note that this Court did not hear the three writ petitions - W.P.(C) no. 4896/2017, W.P.(C) no. 5001/2017 and W.P.(C) no. 7934/2017 - on 29.05.2018. The Hon'ble Judge who heard the matter on 29.05.2018, has since demitted his office. The writ petition, W.P.(C) no. 5185/2018, disposed of on 30.08.2018, was also not heard by this Court. It has further emerged that the learned counsel who appeared and argued on 29.05.2018 in the afore-mentioned three writ petitions (supra) and on 30.08.2018 in the writ petition, W.P.(C) no. 5185/2018 on behalf of Sri Bhupen Chandra Das, Secretary, Namah Sudra Fishery Co-operative Society Ltd. (i.e. the present review petitioner) is not representing him in this review petition. Mr. D. Das, learned Senior Counsel for the present respondent no. 5, Sri Ram Prasad Malodas, Secretary, Bahari Reserved Gaon Min Samabai Samiti Ltd. had appeared for him on both the earlier occasions.

18. It is settled that nothing in Article 226 of the Constitution prevents a High Court from exercising the power of review which is inherent in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and ex-facie apparent errors committed by it. In this connection, the Hon'ble Supreme Court of India in the decision in Aribam Tuleshwar Sharma vs. Ariban Pishak Sarma, reported in (1979) 4 SCC 389, has observed in the following manner :-

"3....... It is true as observed by this Court in Shivdeo Singh vs. State of Punjab, AIR 1963 SC 1909 there is nothing in Article 226 of the Constitution to preclude a High Court from Page No. 10/12

exercising the power 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 definitive limits to the exercise of the power of review. The power of review may be exercised to the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the 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; it may also be exercised on any analogous ground. But it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner or errors committed by the subordinate court"

19. Order 47 Rule 1 of the Code of Civil Procedure, 1908, provides for an application for review. The review proceedings are not by way of an appeal and have to be strictly confined to the ambit and scope of Order 47 Rule 1 of the Code of Civil Procedure, 1908. In a review petition, it is not open for the Court to re-appreciate the evidence. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the Court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition. It has been held in Kerala Electricity Board vs. Hitech Electrothermics and Hydropower Ltd., (2005) 6 SCC 651 that to permit a review petitioner to argue on a question of appreciation of evidence could amount to converting a review petition into an appeal in disguise. It has been held in Kamlesh Verma vs. Mayawati and others, reported in (2013) 8 SCC 320, that a review proceeding cannot be equated with the original hearing of the case. The power of review can be exercised for correction of a mistake but not to substitute a view. The mere possibility of two views on the subject is not a ground for review. In a review petition, it is not open to the Court to re-appreciate the evidence and reach a different conclusion, even if that is possible. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction.

20. It would also be apposite to refer to the observations made by the Hon'ble Supreme Court in Tamil Nadu Electricity Board and another vs. N. Raju Reddiar and another, reported in (1997) 9 SCC 736, with regard to the practice of filing review petition. It has been noted therein that the Court spends valuable time in deciding a case. Review petition is not, and should not be, an attempt for Page No. 11/12

hearing the matter again on merit. Taking note of the practice, developed in recent times, to file review petitions as a routine, that to, with change of counsel, without obtaining consent of the learned counsel who appeared at the earlier stage, the Hon'ble Supreme Court has observed that the same is not conducive to healthy practice. This Court is not inclined to mention the other observations, though relevant, made in the said judgment.

21. Having regard to the ambit and scope of review jurisdiction and the fact situation obtaining in the case, this Court likes to observe that what transpired during the hearing on 29.05.2018 is neither within the knowledge of the present learned counsel for the review petitioner or the review petitioner in this review petition as he was not personally present in the Court on that day, nor within the knowledge of this Court. What is certain is that the records of settlement was produced before the Court by the learned State counsel. It is not within the knowledge of the learned counsel for the review petitioner to confirm as to whether those records were perused by the learned counsel who appeared for the present review petitioner on 29.05.2018 or not, as he did not appear before the Court on 29.05.2018, as there has been change of counsel. The same counsel who appeared on 29.05.2018, also appeared and argued in the writ petition, W.P.(C) no. 5185/2018 on 30.08.2018 for the present review petitioner and the present review petitioner was the writ petitioner therein. It has not emerged with certainty from the prayers made in the said writ petition, W.P.(C) no. 5185/2018 that the grounds taken in this review petition, were taken therein or not and the learned counsel for the writ petitioner, as he then was, had argued on those grounds. The grounds taken in this review petition were very much available to be taken at the time of preferring the said writ petition. It can also be noticed that the some of the grounds taken in this review petition, as is evident from the order dated 12.11.2018 passed in the writ petition, W.P.(C) no. 7691/2018 which is also filed by the present review petitioner, have been agitated in the said writ petition. In the absence of the learned counsel who appeared on 29.05.2018 and who only could have vouched for the veracity of such claim and with a new learned counsel who did not appear on 29.05.2018, it is not open and permissible for the review petitioner to take a ground that the petitioner had no opportunity to look into the Bakijai Certificate which was available in the records and accordingly, no submission could be made on the said document. It is noticed that the learned counsel who appeared for the review petitioner on 29.05.2018, had advanced his submissions on two other documents of the respondent no. 5's bid. While it could be possible to draw an inference that the learned counsel for the review petitioner had no opportunity to look into the records on 29.05.2018, it is also possible to draw an inference that the learned counsel had the opportunity to look into the records on 29.05.2018 and satisfied with the Page No. 12/12

Bakijai Certificate, he had chosen not to make any submission on the Bakijai Certificate.

22. The present review petition has been filed on 11.02.2020. Conspicuously, none of the previous events afore-stated, have been mentioned in this review petition. From the afore-stated events that took place during the intervening period from 29.05.2018 till the filing of this review petition, this Court is of the view that the present review petition has been filed as an afterthought. On the aspect of consideration of the Bakijai Certificate stated to be submitted by the respondent no. 5 herein along with his tender pursuant to the NIT dated 29.06.2017, the Court after hearing all the parties and perusal of the concerned records of settlement, had given a decision on the said Bakijai Certificate. With the grounds that have been urged on behalf of the review petitioner now, some of which have already been agitated in the writ petition, W.P.(C) no. 7691/2018, it is not within the ambit and scope of the review jurisdiction of this Court to sit virtually in judgment over the decision of the learned Judge who decided on it and to construe the document differently as the same would amount to exercise of appellate jurisdiction in disguise. This Court in review cannot examine as to whether there is possibility to arrive at a different view on the document than the one already arrived at by the learned Judge on 29.05.2018. The review petitioner became aware, if not at any earlier point of time, of the Bakijai Certificate and the contents thereof, on 29.05.2018. What prevented him not to agitate the grounds on which the present petition is filed during the intervening period from 29.05.2018 to 11.02.2020 has not been alluded in the present petition. It has not been pleaded that there was discovery of new and important matter. There is, thus, apparent lack of due diligence on the part of the petitioner.

23. For all the afore-stated reasons, this Court is of the unhesitant view that the review petition is devoid of any merit and is liable to be dismissed. It is accordingly done. No cost.

JUDGE

Comparing Assistant