Madhya Pradesh High Court
M/S Amit Upadhyay vs The State Of Madhya Pradesh on 29 March, 2022
Author: Anand Pathak
1 R.P.No.513/2021
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
JUSTICE SHEEL NAGU
&
JUSTICE ANAND PATHAK
REVIEW PETITION NO.513/2021
M/s Amit Upadhyay
Versus
State of Madhya Pradesh & Ors.
==================================================
Shri M.L. Swarnkar, learned counsel for the petitioner.
Shri Ankur Modi, learned Additional Advocate General for the
respondents/State.
==================================================
ORDER
{Delivered on 29th Day of March, 2022}
Per Justice Anand Pathak,
1. The present review petition has been preferred by the petitioner
seeking review of the order dated 06-04-2021 passed by the
Division Bench in Writ Petition No.4865/2021 wherein
interference has been declined and petition was dismissed.
2. Grievance as reflected in the submissions and pleadings in the
petition was that the petitioner is a proprietorship firm and in
pursuance to work order dated 25-08-2014 issued in favour of
petitioner for construction of cement concrete canal lining,
structure, repair of structures and drilling and grouting work of
Rajeev Sagar Tank Project, petitioner/firm completed the said
project. The stipulated date of completion of work was 24-08-
2016.
3. As per the submissions in the writ petition, petitioner completed
his work before time i.e. on 22.08.2016 itself and submitted his
final bill for payment, but since the balance amount as per the
revised estimate has not been paid to him for last more than four
years despite issuance of notices, then petitioner preferred this
petition for payment of balance amount.
4. Learned counsel for the petitioner while placing order/judgment
rendered by Apex Court in the case of M/s Surya Construction
Vs. State of U.P. and Ors. reported in (2019) 16 SCC 794,
passed on 08-03-2019 in Civil Appeal No.2610/2019 as well
as recent judgment of Apex Court in case of UNITECH
Limited & Ors. Vs. Telangana State Industrial
Infrastructure Corporation (TSIIC) & Ors. reported in 2021
SCC Online SC 99 passed in Civil Appeal No.317/2021 tried
to bring home the legal position before learned Writ Court that
contractual rights of the State are subject to judicial review
under Article 226 of the Constitution. Despite making frequent
requests for payment, no affirmative steps have been taken by
the State, therefore, the petition has been preferred.
5. In the writ proceedings, counsel for the respondents/State
opposed the prayer and submitted that case involves disputed
question of facts. While referring some of the letters issued by
respondent authorities like letter dated 11-05-2017 written by
Executive Engineer, Water Resources Department, Raghogarh
District Guna to Superintending Engineer, Water Resources
Department, Guna in which it was mentioned that some
repairing and improvement work had to be made in the defect
liability period and since defect liability period automatically
stands extended until the defect is rectified. Therefore,
petitioner had to perform the maintenance which he omitted to
do so. Similarly letter dated 24-04-2019 also indicated that
some fault was apparent in Canal Lining and contractor had to
do repairing and improvement work which he omitted to do so.
According to him, work of petitioner was not upto mark and
despite that he did not rectify the defect, therefore, case bears
disputed factual matrix. Thus, prayed for dismissal of the case.
6. After considering the rival submissions and on the basis of
existence of disputed questions in the controversy indulgence
by way of issuance of prerogative writ was not exercised by this
Court because it was disputed factual arena, therefore, Court
desisted to issue writ and impugned order has been passed.
7. In review petition, it is being submitted by petitioner that main
prayer of petitioner in the petition was to release withheld
amount which was admitted by the respondents to the petitioner
and since said amount had been withheld on alleged pretext of
paucity of fund therefore that cannot be a ground for rejection.
Through a table demonstrated in the review petition memo,
petitioner tried to assert that it is a case where factual
controversy has not been taken into care by learned Writ Court
and caused illegality. Through various judgments referred
earlier petitioner reiterates his case.
8. Learned counsel for the respondent/State opposed the prayer
and while relying upon earlier submissions as submitted before
learned Writ Court reiterated the said submissions and prayed
for dismissal of the review petition. According to learned
Additional Advocate General, scope of review has been tried to
be expanded by the petitioner.
9. Heard learned counsel for the parties at length and perused the
impugned order.
10. This is a case where petitioner is seeking review of the order
dated 06-04-2021 passed by this Court in Writ Petition
No.4865/2021. Interestingly, petitioner neither in writ petition
nor in the review petition submitted agreement/work contract
neither pleaded about arbitration clause. Since it was a work
contract, therefore, appropriate remedy regarding ventilation of
grievances of petitioner as works contractor was to approach
Tribunal under M.P. Madhyastham Adhikaran Adhiniyam, 1983.
Instead of approaching the said Tribunal, petitioner approached
directly this Court to redress his grievances. On close scrutiny
it appears that case involves disputed question of facts and it is
evident from different correspondences made by different
authorities of Water Resources Department. Apparently,
petitioner did not stand to his contractual obligation and now
trying to get indulgence of this Court on the pretext or the other.
11. Even it appears that petition suffers from delay and laches also
and filed much belatedly, but to cover it up, this petition
apparently was filed.
12. Review petition indicates that petitioner tried to get
reappreciation of controversy again on facts which is not
permissible under the limited jurisdiction of review. Scope is
very limited and no perversity, illegality or impropriety has been
indicated by the petitioner to show indulgence into the
controversy. Review jurisdiction cannot be used as appellate
forum. Judgments relied upon by the petitioner are of no avail
and move in different factual realm.
13. Scope of review is well defined in the case of Kamlesh Verma
Vs. 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".
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 meres 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."
14. 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.
15. Cumulatively, no case for interference is made out and review
petition sans merits and is hereby dismissed.
(Sheel Nagu) (Anand Pathak)
Judge Judge
Anil*
ANIL KUMAR
CHAURASIYA
2022.03.29
18:37:58
-07'00'
