Orissa High Court
Debadutta Pal vs State Of Odisha &Ors. .... Opposite ... on 8 August, 2025
Author: S.K. Panigrahi
Bench: S.K. Panigrahi, G. Satapathy
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 14-Aug-2025 17:09:25
IN THE HIGH COURT OF ORISSA AT CUTTACK
RVWPET No.11 of 2022
(In the matter of an application under Order 47 Rule 1 read with
Section 114 of the Civil Procedure Code, 1908)
Debadutta Pal .... Petitioner(s)
-versus-
State of Odisha &Ors. .... Opposite Party (s)
Advocates appeared in this case throughHybrid Arrangement Mode:
For Petitioner(s) : Mr.Avijit Pal, Adv.
For Opposite Party(s) : Mr. Sonak Mishra, ASC
CORAM:
DR. JUSTICE S.K. PANIGRAHI
MR. JUSTICE G. SATAPATHY
DATE OF HEARING:-08.05.2024
DATE OF JUDGMENT: -08.08.2025
Dr. S.K. Panigrahi, J.
1. This RVWPET has been filed under Order XLVII Rule 1 read with
Section 114 of the Code of Civil Procedure, 1908 (hereinafter referred
to as "the C.P.C." for brevity) by the Petitioner praying for reviewing
the order dated 10.01.2022 passed in W.P.(C) No.16207 of 2012,
whereby the said Writ Petition was dismissed.
I. FACTUAL MATRIX OF THE CASE:
2. The facts, as narrated in the aforesaid Writ Petition as well as in the
present Review Petition, are that the Opposite Party No.1 invited item
Location: ORISSA HIGH COURT, CUTTACK
rate tenders for bridge works under the Biju Setu Yojana through 'E'-
procurement vide NIT No. NCB-Online-11-2011-12 (Bridges), Letter
No. 20634.
3. The Petitioner, being an 'A' Class Contractor under the Government
of Odisha, submitted its bid online for Item No. 28 in the Annexure,
concerning the work of construction of a bridge over Junia Nala on
the Kalipoi-Balipahad Road in the district of Cuttack. The
approximate estimated cost of the work was stated to be ₹1,66,86,000,
with the stipulated time of completion being 12 calendar months.
4. The Petitioner deposited the EMD amounting to ₹1,67,000, which was
kept in fixed deposit by the Opposite Party No.3.
5. The Opposite Parties shortlisted the Petitioner as the lowest bidder for
the aforesaid work. The Opposite Party No.3 informed the Petitioner
vide Letter No. 423 that his tender, being 5.91% less than the
corresponding estimated cost, had been accepted by the higher
authorities. The Petitioner was further requested to furnish an LSD of
₹1,45,030in the form of a fixed deposit from any scheduled bank, duly
pledged in favour of the Opposite Party No.3.
6. However, as the Opposite Party No.3 did not respond to the
Petitioner's subsequent requests, the Petitioner, through his lawyer,
sought information regarding the land acquisition status of the
proposed worksite under the Right to Information Act, 2005, by filing
an application under Section 6(1) of the said Act in the prescribed
format.
Location: ORISSA HIGH COURT, CUTTACK
7. The Petitioner also submitted a representation to the Opposite Party
No.3 seeking a refund of the illegally forfeited EMD amount of
₹1,67,000. In that representation, the Petitioner highlighted the non-
availability of the proposed site and contended that the forfeiture of
the EMD was illegal and arbitrary. Nevertheless, vide Letter No. 1298
dated 02.07.2012, the Opposite Party No.3 intimated the Petitioner
regarding the forfeiture of the EMD, without assigning any cogent
reasons.
8. Subsequently, the Opposite Party No.1, by its Letter No. 12916/RR-BR-
T-CTC=4/2C12 dated 24.07.2012, addressed to the Opposite Party
No.2, cancelled the tender in respect of the aforesaid work on the
ground that the BOQ wording in Item Nos. 4, 6, 23, and 25 was
defective, thereby preventing a decision from being taken in the said
tender. The Opposite Party No.1 further advised the Opposite Party
No.2 to invite a fresh tender after recasting the estimate based on the
current Schedule of Rates, 2012, and in strict adherence to all
formalities. The Opposite Party No.2 was also warned to be more
cautious in future to avoid such lapses. It was further mentioned that
all the tender documents that were under consideration for the award
of work had been returned to the Opposite Party No.2.
9. Thereafter, the Petitioner again applied, through his Advocate, for a
copy of Letter No. 12916 dated 24.07.2012 under the RTI Act on
30.07.2012. In response, the Public Information Officer, Rural Works
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Division, Cuttack-II, furnished a compliance report on 04.08.2012, but
did not supply a copy of the said letter.
10. Subsequently, the Opposite Party No.1 invited a fresh tender for the
same work vide NIT No. MCB No. Tender Online RWC-29, Letter No.
1549, along with a modified BOQ.
11. Thereafter, the matter was taken up for hearing by this Hon'ble Court
on 10.01.2022. It was the specific case of the Petitioner that the original
Notice Inviting Tender was defective and was, in fact, cancelled by the
authorities on that very ground. Accordingly, the Petitioner
contended that the forfeiture of the EMD could not be sustained in
law, as the cancellation was not due to any fault on the part of the
Petitioner. It was therefore submitted that the Petitioner was entitled
to a refund of the EMD amount along with applicable interest.
12. However, this Court, by its order dated 10.01.2022, dismissed the Writ
Petition, holding that the Petitioner's tender had been duly accepted
and communicated prior to its cancellation, and that the forfeiture of
the EMD was in accordance with the terms of the agreement. This
Court further observed that no material was placed on record to show
that the tender was cancelled on account of any defect in the tender
documents, and accordingly declined to interfere with the action
taken by the authorities.
13. Being aggrieved by the dismissal of the Writ Petition, the Petitioner
has preferred the present Review Petition seeking a review of the said
order dated 10.01.2022 passed in W.P.(C) No. 16207 of 2012.
Location: ORISSA HIGH COURT, CUTTACK
II. PETITIONER'SSUBMISSIONS:
14. Learned counsel for the Petitioner Mr. Avijit Pal earnestly made the
following submissions in support of his contentions:
(a) The Petitioner contended that in the order dated 10.01.2022, the
Division Bench did not consider the applicability of Section 114 of the
Indian Evidence Act, 1872 while examining the counter affidavit filed
by the State authorities. It was specifically urged by the Petitioner that
the notice inviting tender had been cancelled owing to defects in the
BOQ, a fact that remained uncontroverted by the State in its
pleadings.
(b) The Petitioner submitted that the letter dated 21.03.2012, which
indicated acceptance of the Petitioner's tender with respect to cost,
was merely tentative in nature. The language of the said letter
expressly recorded that it did not confer any enforceable right to the
award of the contract. When read conjointly with the letter dated
24.07.2012 issued by Opposite Party No. 2, it is evident that on the
date when Opposite Party No. 3 purportedly decided to forfeit the
EMD of the Petitioner, there was neither any award of contract nor
was there a concluded agreement. Consequently, the action of
forfeiting the EMD was without authority and is legally untenable.
(c) The Petitioner asserted that Opposite Party No. 1 had issued a fresh
Notice Inviting Tender bearing reference Tender Online RWC-29 vide
letter No.1549 dated 16.08.2012, in respect of the same work as well as
two other works. In the said tender, the earlier BOQ wording in Item
Location: ORISSA HIGH COURT, CUTTACK
Nos. 4, 6, 23, and 25 had been rectified. Accordingly, the forfeiture of
the EMD, despite subsequent acknowledgment of defects in the BOQ,
is arbitrary and contrary to law. In this context, the Petitioner referred
to paragraph 3.13 of the Writ Petition, wherein it was specifically
pleaded that Opposite Party No. 1, vide letter dated 24.07.2012 (No.
12916/RRBR-T-CTC-4/2012), had advised Opposite Party No. 2 to
cancel the tender on the ground of BOQ defects and to recast the
estimate as per the current schedule of rates before inviting fresh bids.
The said letter also recorded a caution to Opposite Party No. 2 to
avoid such irregularities in future and was marked to Opposite Party
No. 3 for appropriate action.
(d) The Petitioner submitted that inUnion of India v. Ibrahim Uddin and
another1, the Supreme Court observed that it is the duty of the party
to lead the best evidence in his possession which could throw light on
the issue in controversy and in case such material evidence is
withheld, the court may draw adverse inference under Section 114
Illustration (g) of the Indian Evidence Act, 1872. The Petitioner
submitted that this principle was directly relevant to the present case.
(e) The Petitioner contended that the absence of any comment or denial
by Opposite Party Nos. 2 and 3 in response to the specific allegation
regarding the cancellation of the NIT on account of defective BOQ
amounts to suppression of material facts. The Petitioner further
contended that this conduct of the said Opposite Parties warranted
(2012)8 SCC 148.
Location: ORISSA HIGH COURT, CUTTACK
the drawing of an adverse inference under law. In view of the
categorical averments in the Writ Petition and the contents of the
official correspondence, the forfeiture of the EMD was wholly
unjustified, and the Petitioner was entitled to a direction for refund of
the said amount along with applicable interest.
(f) The Petitioner submitted that the impugned order dated 10.01.2022
appears to have been rendered without taking into consideration
material evidence placed on record. This oversight constitutes an error
apparent on the face of the record, thereby justifying invocation of the
review jurisdiction of this Court.
III. SUBMISSIONS OF THE OPPOSITE PARTIES/ STATE:
15.Learned counsel for the Opposite Parties/ State Mr. Sonak Mishra
earnestly made the following submissions in support of his
contentions:
(a) Learned Additional Government Advocate submitted that the
Petitioner did not fulfil the obligations arising from the tender which
had been conditionally allotted in his favour. Consequently, the
tender was cancelled, and the Petitioner is not entitled to a refund of
the EMD. In view of the above, it was urged that the present Review
Petition does not merit interference by thisCourt and may accordingly
be dismissed.
IV. COURT'S REASONING AND ANALYSIS:
16. We have gone through the pleadings and heard learned counsels for
the parties.The scope of the present petition filed under Order XLVII
Location: ORISSA HIGH COURT, CUTTACK
Rule 1 read with Section 114 of the Code of Civil Procedure, 1908,
must be examined strictly within the confines of review jurisdiction.
17. It is well settled that a review is not an appeal in disguise. The
parameters for invoking review jurisdiction are narrowly
circumscribed. Unless there exists a patent error apparent on the face
of the record or the judgment under review causes a manifest
miscarriage of justice, interference in review is impermissible. Mere
disagreement with the reasoning of the Court or the possibility of an
alternative view is not sufficient ground for review.
18. The Supreme Court in Thungabhadra Industries Ltd. v. Govt. of A.P2,
observed the following:
"A review is by no means an appeal in disguise whereby an
erroneous decision is reheard and corrected, but lies only for
patent error. We do not consider that this furnishes a
suitable occasion for dealing with this difference
exhaustively or in any great detail, but it would suffice for
us to say that where without any elaborate argument one
could point to the error and say here is a substantial point of
law which stares one in the face, and there could reasonably
be no two opinions, entertained about it, a clear case of error
apparent on the face of the record would be made out."
19. Similarly, inLily Thomas v. Union of India3,the Supreme Court
observed as replicated hereinbelow:
"56. It follows, therefore, that the power of review can be
exercised for correction of a mistake but not to substitute a
view. Such powers can be exercised within the limits of the
(1964) 5 SCR 174.
(2000) 6 SCC 224.
Location: ORISSA HIGH COURT, CUTTACK
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..."
20. In the present case, the Petitioner's principal contention is that the
forfeiture of the EMD was unjustified, as the tender itself was
subsequently cancelled on the ground of defects in the BOQ, as
reflected in Letter No. 12916 dated 24.07.2012 issued by Opposite
Party No.1.
21. The Petitioner has also pointed to the issuance of a fresh Notice
Inviting Tender vide Letter No. 1549 with a modified BOQ which
evidences that the original tender was defective from its inception. It
was further submitted that the absence of a rebuttal by Opposite Party
Nos. 2 and 3 to the said cancellation should have invited an adverse
inference under Section 114(g) of the Indian Evidence Act, 1872.
22. Upon consideration, the contentions raised do not disclose any
manifest error apparent on the face of the record. The fact that the
BOQ was subsequently corrected and a fresh tender was issued does
not automatically render the earlier forfeiture of the EMD illegal per
se.This Court had already considered the issue of whether a
concluded contract had come into existence and found that the
Petitioner's tender was accepted and communicated prior to its
cancellation. The forfeiture was held to be in accordance with the
terms of the tender documents. These findings were based on the
Location: ORISSA HIGH COURT, CUTTACK
materials placed before the Court at the time and cannot now be
reopened under the guise of review.
23. Moreover, the letter dated 24.07.2012, which forms the foundation of
the Petitioner's argument, was referred to and relied upon in the writ
petition itself. The contention that it was overlooked or not adequately
appreciated does not meet the threshold of a "patent error" as
understood in law. Review jurisdiction does not permit reappreciation
of evidence or substitution of the Court's earlier view merely because
a party believes a different conclusion should have been drawn.
24. The Petitioner's submission regarding adverse inference under
Section 114(g) of the Evidence Act also appears to be an attempt to
recast earlier arguments in a different legal form.
25. In view of the above, this Court finds no manifest error, miscarriage of
justice, or omission of material evidence that would justify invoking
the review jurisdiction. The Petitioner's arguments essentially seek a
rehearing of the matter on the same facts, which is impermissible
under the law.
26. Accordingly, the Review Petition is dismissed.
(Dr.S.K. Panigrahi)
Judge
G. Satapathy, J.I agree.
(G. Satapathy)
Judge
Orissa High Court, Cuttack,
Dated the 8th August, 2025/
