Gauhati High Court

Uttar Pradesh vs The State Of Assam And 3 Ors on 1 September, 2025

Author: Sanjay Kumar Medhi

Bench: Sanjay Kumar Medhi

Page No.# 1/23

GAHC010102682025

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

Case No. : Review.Pet./78/2025

HINDUSTAN LATEX FAMILY PLANNING PROMOTION TRUST,
THROUGH ITS AUTHORIZED SIGNATORY AWANISH AWASTHI, HAVING ITS
CORPORATE OFFICE AT B-14A, IIND FLOOR, A SECTOR-62, NOIDA- 201307,
UTTAR PRADESH

VERSUS

THE STATE OF ASSAM AND 3 ORS
THROUGH HEALTH AND FAMILY WELFARE, DEPARTMENT,
GOVERNMENT OF ASSAM, DISPUR, GUWAHATI-781006.

2:THE NATIONAL HEALTH MISSION
ASSAM REPRESENTED BY THE MISSION DIRECTOR HAVING ITS OFFICE
AT SAIKIA COMMERCIAL COMPLEX SRI NAGAR PATH
NEAR POST OFFICE BUS STAND G.S. ROAD
CHRISTIANBASTI
GUWAHATI-781005.

3:THE MISSION DIRECTOR
NATIONAL HEALTH MISSION (NHM)
OFFICE OF THE MISSION DIRECTOR SAIKIA COMMERCIAL COMPLEX
SRINAGAR PATH CHRISTIANBASTI
G.S. ROAD GUWAHATI-781005
ASSAM

4:THE COMMUNITY ACTION
THROUGH MOTIVATION PROGRAMME- CAMP REPRESENTED BY ITS
PRESIDENT F106
GARDEN RESIDENCY
CHUNA 7 BHATTI BHOPAL
MADHYA PRADESH462016
Page No.# 2/23

Advocate for the Petitioner : MR B P BORAH, A NEOG,MR P J DUTTA,MS. G GOSWAMI

Advocate for the Respondent : SC, NHM, MR. A DHAR (R-4),MS. A VERMA(R-4)

BEFORE
Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI

Advocate for the applicant : Shri KN Choudhury, Senior Counsel
Ms. G. Goswami
Shri PJ Dutta
Ms. A. Neog

Advocate for the respondents : Shri B. Gogoi, SC- NHM
Shri A. Dhar, R. No. 4.

Date of hearing : 28.08.2025
Date of Judgment : 01.09.2025

Judgment & Order

The instant application has been filed for review of the judgment and
order dated 04.05.2023 passed by this Court in WP(C)/2049/2023.

2. There is a chequered history in this case. Suffice it to mention that the
applicant, as writ petitioner had put to challenge an order dated 28.06.2023
issued by the National Health Mission (hereinafter, NHM) allotting a work to the
respondent no. 4 which is termed as Service Level Agreement (SLA). The
aforesaid work was allotted pursuant to a tender process mooted vide a Notice
Inviting Tender (NIT) dated 01.10.2022 which was for providing Mobile Medical
Units (MMU) in the State of Assam. In the said process, the applicant / writ
petitioner was unsuccessful and accordingly the writ petition was instituted
challenging the decision to allot the work to the respondent no. 4. The writ
Page No.# 3/23

petition was however dismissed by this Court vide order dated 04.05.2023.
Being aggrieved, the applicant had preferred a writ appeal being WA/165/2023
which however was also dismissed vide order dated 24.05.2023 by the Hon'ble
Division Bench. The applicant thereafter had preferred SLP(C)/14928/2023
before the Hon'ble Supreme Court in which the notice was issued on
21.07.2023. Subsequently vide order dated 13.10.2023 status-quo was directed
to be maintained. It is the case of the applicant / writ petitioner that during the
proceeding before the Hon'ble Supreme Court vide order dated 17.01.2025, the
parties were given the liberty to inspect the records which the applicant had
done. Subsequently, vide order dated 18.03.2025, the SLP has been dismissed.
It is thereafter that the instant review petition has been filed.

3. It may however be mentioned that initially the review petition was
preferred before the Hon'ble Division Bench being Review.Pet./43/2025 in which
the Hon'ble Division Bench had passed an order dated 09.05.2025 directing the
petitioner / applicant to approach the Single Bench, if permitted by law and
thereafter the present application has been filed.

4. I have heard Shri KN Choudhury, learned Senior Counsel assisted by Ms.
G. Goswami, learned counsel for the review applicant / writ petitioner. I have
also heard Shri B. Gogoi, learned Standing Counsel, NHM and Shri A. Dhar,
learned counsel for the respondent no. 4.

5. Shri Choudhury, learned Senior Counsel for the review applicant / writ
petitioner has submitted that the respondent no. 4 had furnished documents in
support of its eligibility which was not sufficient to adjudge its eligibility. He has
submitted that in the tender document, there is a procedure laid down for
evaluation of the bids and under Section V Clause 2, at least 3 years experience
in community medicine is necessary. He has also submitted that as per the
Page No.# 4/23

appendix to the aforesaid Section, the requirement of such Certificate has to be
in original. It is the specific case of the applicant that in the eligibility Certificate
regarding experience of the respondent no. 4, there are major anomalies which
would also indicate the involvement of fraud.

6. By drawing the attention of this Court to a letter dated 30.08.2021, the
learned Senior Counsel for the applicant / writ petitioner has submitted that
there are gross anomalies in the said letter. A similar letter has been relied upon
by the respondent no. 4 dated 30.06.2021. By drawing the attention of this
Court to another letter dated 12.02.2025 issued to the applicant by the same
authority of the State of Odisha, the learned Senior Counsel has submitted that
the letter is on a different letterhead containing a different signature. He has
submitted that as per the minutes of meeting dated 26.12.2022 of the NHM,
there was an observation that the Certificate furnished by the respondent no.4
was not legible and therefore clarification was sought for, which was to be done
within a period of 3 days. However there is no further material to show that the
NHM was satisfied on the said aspect. He has also drawn the attention of the
Court to the SLA dated 28.06.2023 and as per Clause 4.5, 90 days time was
given to commence the work failing which the work would stand cancelled and
the security amount would be forfeited. He has submitted that the said period
had ended on 26.09.2023 whereafter the same was extended to 05.10.2023
vide a minutes of meeting dated 03.10.2023. He has submitted that even within
the extended period of time, the job could not be commenced and therefore, as
per the aforesaid Clause 4.5 the work was liable to be cancelled.

7. By drawing the attention of this Court to the affidavit-in-opposition of the
NHM, the learned Senior Counsel for the applicant has highlighted that the
inconsistencies which were shown by the applicant in the documents of the
Page No.# 5/23

respondent no.4 have not been able to be clarified.

8. The learned Senior Counsel has submitted that though a clarification was
sought for by the NHM, the same is after the issuance of the SLA on 28.06.2023
which is not permissible in law. He has submitted that such clarifications were
not on record before the authority on or before the date of opening of the bids
and therefore, cannot be taken into consideration. He has also submitted that
by taking recourse to the Right to Information Act, information has been sought
from the State of Odisha and vide communication dated 02.06.2025, though the
information has been given, however, the project cost of the earlier work of
which experience has been relied upon is kept blank. He has also submitted that
the respondent no. 4 has failed to submit original documents.

9. The learned Senior Counsel for the applicant / writ petitioner has
submitted that the aspect of fraud cannot be ruled out. By drawing the attention
of this Court to Section 17 of the Indian Contract Act, 1872 he has also
submitted that the respondent no. 4 indulged in fraud and therefore the entire
process is vitiated. He has submitted that despite the minutes of meeting dated
26.12.2021 whereby it was held that the Certificate of the respondent no. 4 was
not legible, the technical bid of the said respondent no. 4 was considered
responsive. He has also submitted that the justification has been sought to be
made on the basis of a document which was not existing at that time.

10. The learned Senior Counsel has also informed that an order of status quo
was operative all this while and vide a communication dated 17.08.2025, the
applicant has been directed to wind up its operations by 01.09.2025 and the
respondent no. 4 has been directed to take over the operations from the said
date. He has submitted that the entire tender process is required to be
cancelled and a fresh process be initiated.
Page No.# 6/23

11. In support of his submission, the learned Senior Counsel has placed
reliance upon the following case laws-

i. (2007) 4 SCC 221 [A.V. Papayya Sastry and Ors. Vs. Govt.
of A.P. and Ors.]

ii. (2019) 4 SCC 376 [Khoday Distilleries Limited and Ors. Vs.
Sri Mahadeshwara Sahakara Sakkare Karkhane Limited,
Kollegal]

iii. (2025) 6 SCC 717 [Noida Toll Bridge Company Limited Vs.
Federation of Noida Residents Welfare Association and Ors.]

12. The case of A.V. Papayya (supra) has been cited to bring home the
contention that if a judgment or a decree is obtained by playing fraud, it can be
challenged in any Court at any time. Reliance upon this case is also made for
the purpose to explain the doctrine of merger which, however, has an exception
if fraud is involved. For ready reference, the relevant observations are extracted
hereinbelow-

"22. It is thus settled proposition of law that a judgment, decree or

order obtained by playing fraud on the Court, Tribunal or Authority
is a nullity and non est in the eye of law. Such a judgment, decree
or order - by the first Court or by the final Court - has to be treated
as nullity by every Court, superior or inferior. It can be challenged in
any Court, at any time, in appeal, revision, writ or even in collateral
proceedings.
...

...

38. The matter can be looked at from a different angle as well.

Page No.# 7/23

Suppose, a case is decided by a competent Court of Law after hearing the parties and an order is passed in favour of the applicant/plaintiff which is upheld by all the courts including the final Court. Let us also think of a case where this Court does not dismiss Special Leave Petition but after granting leave decides the appeal finally by recording reasons. Such order can truly be said to be a judgment to which Article 141 of the Constitution applies. Likewise, the doctrine of merger also gets attracted. All orders passed by the courts/authorities below, therefore, merge in the judgment of this Court and after such judgment, it is not open to any party to the judgment to approach any court or authority to review, recall or reconsider the order.

39. The above principle, however, is subject to exception of fraud. Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non-existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as nullity, whether by the court of first instance or by the final court. And it has to be treated as non est by every Court, superior or inferior."

13. In the case of Khoday Distilleries Limited (supra), the Hon'ble Supreme Court has clarified that when a Special Leave Petition is dismissed by refusal to grant leave, the doctrine of merger does not apply. For ready Page No.# 8/23

reference, the relevant observations are extracted hereinbelow-

"26.2 We reiterate the conclusions relevant for these cases as under:

"(iv) An order refusing special leave to appeal may be a non-

speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.

(v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.

Page No.# 9/23

(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.

(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 CPC."

14. In the case of Noida (supra), the Hon'ble Supreme Court has reiterated the requirement of fairness in State action, the relevant observations are extracted hereinbelow-

"38. Second, it is crucial to recognise that when a contract involving

a State instrumentality like NOIDA, significantly impacting the public, the metes and bounds of judicial review ought to be expanded. The guiding principle is that every State action must prioritise public interest. If a governmental action disproportionately favours a private entity at the expense of public welfare, it is liable to be struck down as invalid. As rightly acknowledged by the High Court also, the State is duty-bound to act equitably and in accordance with the Public Trust Doctrine, ensuring that no action harms the broader public interest."

15. Per contra, Shri B. Gogoi, the learned Standing Counsel, NHM has, at the outset raised the aspect of maintainability of this review application by submitting that the matter has again been tried to be agitated afresh after the decision of this Court had attained finality by the dismissal of the SLP.

Page No.# 10/23

16. He has submitted that the even otherwise the projections made in this application are not factually correct. He has clarified that the applicant / writ petitioner had qualified in the technical aspect and was considered in the financial bid wherein the bid of the respondent no. 4 was found to be more competitive. He has drawn the attention of this Court to the writ petition and has submitted that the prayer was only for quashing of the entire tender process and to grant extension to the applicant. He has raised serious questions on the bona fide of the applicant in trying to drag the process as the applicant was the earlier party which was allotted the job and has been continuing in spite of the period being over due to the pending litigation.

17. The learned Standing Counsel has submitted that this Court, vide order dated 04.05.2023 had dismissed the writ petition after hearing all the parties and by passing a detailed order where the scope of review is absolutely limited. He has submitted that the views expressed by this Court was fortified by the dismissal of the writ appeal - WA/165/2023 vide order dated 24.05.2023 and the subsequent dismissal of the SLP instituted by the applicant. With regard to the order dated 17.01.2025 of the Hon'ble Supreme Court whereby the parties were permitted to inspect the original records, the learned Standing Counsel has submitted that irrespective of the aforesaid observation, once the technical bids were opened, the process being e-tender, the credentials of all the parties were open for inspection on the website. He has submitted that in any case, the Hon'ble Supreme Court, vide order dated 18.03.2025 has dismissed the SLP.

18. With regard to the submissions made that the order of the Hon'ble Supreme Court was a non-speaking order and therefore the doctrine of merger would not apply, Shri Gogoi, learned Standing Counsel, NHM has submitted that the aforesaid projection is not legally correct. He has submitted that though the Page No.# 11/23

order dated 18.03.2025 of the Hon'ble Supreme Court does not contain elaborate reasons, the same was passed after a due hearing. He has submitted that even assuming that the order of the Hon'ble Supreme Court may not be treated to be an order of merger, the order of the Hon'ble Division Bench by which the writ appeal was dismissed would still be there and in view of the same, this may not be a fit case for this Court to exercise the powers of review. He has submitted that while the initial review being Review.Pet./43/2025 was dismissed, the Hon'ble Division Bench has made an observation that the Single Judge can be approached only when law permits for such review. He has submitted that there is no direction as such from the Hon'ble Division Bench to entertain the review and rather the caveat is that such application can be filed only when permitted by law.

19. On the merits of the case, the learned Standing Counsel, NHM has submitted that based on the queries raised, a communication was made by the NHM to the State of Odisha on 28.04.2025 which was replied on 8.05.2025 whereby it was categorically stated that the credentials and testimonials furnished by the respondent no. 4 were authentic. However, further clarification was sought for by the NHM vide a subsequent communication dated 23.05.2025 whereby certain discrepancies were specifically directed to be explained. The said communication was also responded on 27.05.2025 by the concerned Department of the State of Odisha whereby the discrepancies have been explained. He has submitted that all the documents furnished by the respondent no. 4 were cross-checked and found to be authentic and the Department had taken due diligence. He has also submitted that clarification was sought from the State of Chhattisgarh on 28.04.2025 which was responded on 08.05.2025 wherein the document dated 26.11.2019 of the respondent no. 4 was stated to Page No.# 12/23

be authentic.

20. The learned Standing Counsel, NHM has submitted that it is not a case where additional documents were sought from the respondent no. 4 after the last date of submission of bids but only clarification was sought for by the NHM from the concerned States as there should not be any discrepancy in the allotment of the work which concerns public interest. He has also highlighted that if any party indulges in fraudulent activities by submitting false documents, there is provision for taking panel action.

21. The learned Standing Counsel has relied upon the case of Jagdish Mandal Vs. State of Orissa and Ors. reported in (2007) 14 SCC 517, wherein the Hon'ble Supreme Court has reiterated the restrictions in exercise of powers of judicial review in contractual matters. He has highlighted the aspect wherein the Hon'ble Supreme Court had taken into consideration that unsuccessful tenderers with imaginary grievance may approach this Court which is to be thwarted. For ready reference, the relevant observations are extracted hereinbelow-

"22. Judicial review of administrative action is intended to prevent

arbitrariness, irrationality, unreasonableness, bias and malafides. Its purpose is to check whether choice or decision is made 'lawfully' and not to check whether choice or decision is 'sound'. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, Page No.# 13/23

courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions :

(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone.

Whether the process adopted or decision made is so arbitrary and irrational that the court can say : 'the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached.'

(ii) Whether public interest is affected.

If the answers are in the negative, there should be no interference Page No.# 14/23

under Article 226. Cases involving black-listing or imposition of penal consequences on a tenderer/contractor or distribution of state largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action."

22. The learned Standing Counsel has also drawn the attention of this Court to the grounds taken in the review petition and has submitted that the aspect that the respondent no. 4 was allotted 3 days to make clarification regarding certain documents which were not legible, is not even a ground of review. He has also submitted that as per information received, the applicant has also approached the Orissa High Court with the same cause of action questioning the documents of the respondent no. 4 and this fact has not been disclosed either in the review petition or during the course of the arguments.

23. Shri Gogoi, learned Standing Counsel, NHM has accordingly submitted that the review petition be dismissed.

24. Shri A. Dhar, learned counsel for the respondent no. 4 has supported the views expressed by the learned Standing Counsel, NHM. He has also highlighted the aspect that the applicant has made a complaint on 28.04.2025 before the Director General of Police wherein 4 aspects have been flagged, namely,

i. submission of fake Certificate

ii. non-adherence to the SLA

iii. incomplete tender clause

iv. prior track record of the respondent no.4

25. He has submitted that the applicant is bent upon to prevent the job being Page No.# 15/23

executed by the respondent no. 4 which is the successful bidder by instituting litigations. He has submitted that once the matter has been finally settled by the Hon'ble Supreme Court, there is no scope of any review.

26. Ms. G. Goswami, learned counsel assisting Shri Choudhury, learned Senior Counsel for the applicant has advanced the rejoinder arguments. She has submitted that the applicant was not required in law to examine the authenticity / veracity of the document of the respondent no. 4 during the technical bid and it was the duty of the Department which it failed. She has also informed that IA(C)/2650/2025 has been filed by the applicant seeking stay on the implementation of the e-tender dated 01.10.2022 and SLA dated 28.06.2023. She has emphasized that the SLP was dismissed in limine and therefore, the doctrine of merger would not be applicable.

27. The rival contentions of the learned counsel for the parties have been duly considered and the materials placed before this Court have been carefully examined.

28. It is no longer res integra that a High Court in exercise of powers under Article 226 exercises plenary jurisdiction in which the power of review is inbuilt. In this regard, one may gainfully refer to the case of MM Thomas Vs. State of Kerala and Ors. reported in (2000) 1 SCC 666 wherein the following observations were made:

"14. The High Court as a Court of record, as envisaged in Article

215 of the Constitution, must have inherent powers to correct the records. A Court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A Court of record is undoubtedly a superior Court which Page No.# 16/23

is itself competent to determine the scope of its jurisdiction. The High Court, as a Court of record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it. The High Court's power in that regard is plenary. In Naresh Shridhar Mirajkar v. State of Maharashtra a nine-Judge Bench of this Court has recognised the aforesaid superior status of the High Court as a Court of plenary jurisdiction being a Court of record."

In a subsequent case of Municipal Corpn. of Greater Mumbai v. Pratibha Industries Ltd., reported in (2019) 3 SCC 203, the aforesaid view has been reiterated.

29. At the same time, it is a settled position of law that the contours of a Review Court is circumscribed and should be within the ambit of the principles laid in Order 47 Rule 1 read with Section 114 of the CPC. In the case of Parsion Devi and Ors. Vs. Sumitri Devi and Ors. reported in (1997) 8 SCC 715 it has been laid down that in review there cannot be examination of the reason. In the case of Karnataka Power Coprpn. Ltd. Vs. Alagendran Exports Ltd. reported in (2004) 13 SCC 377, it has been laid down that only because of another view is possible, review is not permitted.

30. In a recent decision dated 18.08.2022 reported in (2022) SCC OnLine 1034, (S. Madhusudhan Reddy Vs. V Narayana Reddy & Ors.) a three Judges' Bench of the Hon'ble Supreme Court, after discussing the relevant case laws has reiterated the principles laid down in the case of Kamlesh Verma Vs. Mayawati and Ors. reported (2013) 8 SCC 320 which are as follows:

Page No.# 17/23

"20. Thus, in view of the above, the following grounds of review are

maintainable as stipulated by the statute:

20.1. 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 v. Neki and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd.

20.2. 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 Page No.# 18/23

on the face of the 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) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negative."

31. Taking the aforesaid guidelines laid down by the Hon'ble Supreme Court, the present application for review is being considered.

32. This Court had dismissed the writ petition on 04.05.2023 by an elaborate order and the same was upheld by the Hon'ble Division Bench in WA/165/2023 vide order dated 24.05.2023 whereby the said writ appeal was dismissed. Thereafter, SLP(C)/14928/2023 was preferred by the applicant which was dismissed on 18.03.2025.

33. First let this Court to deal with the contention advanced on behalf of the applicant that the doctrine of merger would not be applicable qua the order of the Hon'ble Supreme Court and the projection is that the SLP was Page No.# 19/23

dismissed in limine. It however appears that notice was issued by the Hon'ble Supreme Court on 21.07.2023 and thereafter the matter was considered again on 13.10.2023 when status quo order was passed by the Hon'ble Supreme Court. On the subsequent date i.e. 17.01.2025 the parties were permitted to inspect the records and thereafter on 18.03.2025 the SLP was dismissed.

34. The expression in limine is a Latin term which means "on the threshold" or "at the outset". As indicated above, the SLP was not dismissed on the first date when it was moved and rather was considered on a number of dates and in between status quo order was passed and vide order dated 17.01.2025, had also permitted the parties to inspect the records. Though it is true that in the order of dismissal, the Hon'ble Supreme Court did not record elaborate reasons, it is not the case that on the first date itself the SLP was dismissed. Therefore, this Court is unable to accept the submission that the SLP was dismissed in limine. Consequently, this Court is unable to accept the submission made on behalf of the applicant that the doctrine of merger would not be applicable qua the order of the Hon'ble Supreme Court dated 18.03.2025

35. However, even assuming that the doctrine of merger is not applicable, qua the order passed by the Hon'ble Supreme Court, the said doctrine would definitely be applicable so far as the order dated 24.05.2023 passed by the Hon'ble Division Bench in WA/165/2023 is concerned. The applicant had approached the Hon'ble Division Bench in review petition being Review.Pet./43/2025 which however was dismissed. The liberty to approach the Single Bench was however clarified in the following manner:

"After attempting to argue the matter for quite some time, Mr. P.K. Page No.# 20/23

Goswami, learned senior counsel for the petitioner, on instructions, has submitted that he wants to withdraw this review petition with liberty for the petitioner to file an application for review before the learned Single Judge.

Mr. B. Gogoi, learned standing counsel, Health Department has submitted that such liberty cannot be granted.

Having heard the learned counsel appearing for the parties, we are of the view that if the review petitioner wants to withdraw the review petition with liberty as prayed for, the same can be granted only if the law permits the review petitioner to approach the learned Single Judge by filing a review application.

Hence, this review petition is dismissed as withdrawn, with liberty as prayed for, if law permits to do so."

36. The Hon'ble Division Bench has put a caveat that though the review application can be filed, the same has to be done only if permitted by law.

37. The aspect of powers to be exercised by a Review Court, as noted above, is well settled. The applicant is trying to make out a case that certain new things have been discovered and on the said basis, the review application has been filed. Such discovery pertains to certain documents of eligibility of the respondent no. 4 in the tender process initiated by the NIT dated 01.10.2022. It however transpires that after opening of the technical bids of the tender process which was in the e-mode, all the credentials of the parties were available on the website.

38. What intrigues this Court is that the applicant, in spite of having access to all the documents, had never raised the aforesaid issue. Though it Page No.# 21/23

has been tried to be contended on the part of the applicant that it is for the authority to examine the veracity of the documents of each of the parties, the minutes of meeting placed on record would show that such an exercise was done and in fact, few of the documents which were not legible were directed to be rectified. This Court has also seen that the respondent authorities had conducted a due diligence exercise by seeking clarification from the State of Odisha as well as the State of Chhattisgarh after lodging of the complaint by the applicant before the ADGP on 28.04.2025. Seeking of such clarification would not, in the considered opinion of this Court, amount to allowing a party to introduce new documents after the last date of submission of the bids. Such an exercise is only in furtherance of maintaining transparency and fairness in the matter of distribution of State largesse which was done from the authorities involved in issuing the documents to the respondent no. 4.

39. Much emphasis has been laid on the aspect that a fraudulent practice has been indulged by the respondent no. 4 and the case of AV Papayya (supra) has been relied. The relevant observations have already been extracted above and the judgment is based on the leading case of Lazarus Estates Ltd. Vs. Beasley reported in (1956) 1 All ER 341 wherein the following observations were made:

"No judgment of a Court, no order of a Minister, can be allowed to

stand if it is obtained by fraud."

40. The underlying principle laid down is on obtaining a judgment, decree or order by playing fraud. The Hon'ble Supreme Court has further clarified that such a judgment decree or order by the First Court or by the Final Court has to be treated as nullity by every Court.

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41. In the instant case, the allegation of fraud made by the applicant is not with regard to the Court proceeding but in a tender process. Even by taking a broad view, it has to be noted that it is at the stage of filing a review that such an allegation has been made. It is however important to note that the allegation is based on certain documents which were available much before the writ petition was instituted.

42. In that view of the matter, it does not fulfill the requirement that there is discovery of new materials which, in spite of due diligence, was not within the knowledge of the party seeking review. The emphasis is on the aspect of whether the party, after exercising of due diligence, was not aware of the same. In the instant case, it is not in dispute that the process being an e-tender, after the technical bids was opened, the credentials of each of the parties were available on the website and due diligence was required to be exercised by the applicant or for that matter, any party to examine the documents of the competitors. It is also to be taken into consideration that the applicant was declared technically responsive and it failed to compete in the financial bid with the respondent no. 4.

43. In the considered opinion of this Court, the present application for review does not warrant any merit.

44. This Court has also given a consideration to the fact that the applicant was the earlier allottee and by virtue of the present litigation has been continuing with its earlier job even after expiry of its term only because the job in question is of immense public importance. The present application for review, in view of the aforesaid discussion, does not appear to be with a bona fide intention and on the other hand, appears to be another step to thwart the process of the allotment of the job which was initiated vide a NIT Page No.# 23/23

dated 01.10.2022. Almost 3 years have been elapsed because of the litigation and in view of the dismissal of the SLP on 18.03.2025, the petitioner / applicant has sought to institute the present application for review.

45. This Court has also noticed that the SLP was not withdrawn and no liberty as such was given by the Hon'ble Supreme Court to file any review.

46. It is also seen that even after the confirmation with the order of this Court dated 04.05.2023 by the Hon'ble Division Bench and dismissal of the SLP, the applicant has filed an IA(C)/2650/2025 with the prayer to maintain status quo. In other words, the applicant has sought further extension which does not appear to be bona fide at all more so, when its term had expired long time back.

47. In that view of the matter, while the review application is dismissed, this Court imposes a cost of Rs.50,000/- (Rupees Fifty Thousand) only upon the review applicant / writ petitioner. The cost is to be deposited in favour of the Gauhati High Court Bar Association Welfare Fund.

JUDGE

Comparing Assistant