Unknown vs M/S Dalip Singh Adhikari
2021 Latest Caselaw 4690 UK

      IN THE HIGH COURT OF UTTARAKHAND
                          AT NAINITAL
    THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH
                         CHAUHAN

                                  AND

           THE HON'BLE SRI JUSTICE AlOK KUMAR VERMA

                     23RDNOVEMBER, 2021


           MCC REVIEW APPLICATION NO. 10436 OF 2021

                                   IN

                  SPECIAL APPEAL NO.300 OF 2020



   Between:

   M/s Panchghati Construction
                      ...... Review Applicant/Appellant.

   And


   M/s Dalip Singh Adhikari and others.            ...Respondents.

Counsel for the appellant : Mr. Sanjay Bhatt, learned counsel for the review applicant.

Counsel for the respondents : Mr. Shobhit Saharia, learned counsel for respondent no.1 Mr. S.S. Chauhan, learned counsel for respondent No. 3.

The Court made the following:

JUDGMENT :(per Hon'ble Sri Alok Kumar Verma, J.)

This review application has been filed to

review the judgment, dated 22.09.2021, passed by

this Court in Special Appeal No. 300 of 2020, M/s.

Panchghati Construction vs. M/s Dalip Singh Adhikari

and others.

2. The brief facts of this case, which are

necessary to notice for deciding the present review

application, are that, by tender notice dated

04.12.2019, the Uttarakhand Rural Road Development

Agency, the respondent no.2, had invited bids for

construction of motor road (Package No.UT-402)

(Upgradation) from Banku to Salla-Pasam, for a length

of 13.00 Kms. Pursuant to the tender notice, four

bidders had applied for the same. On 28.01.2020, the

technical bids of all the four bidders were evaluated by

the Technical Committee. While the Technical

Committee approved the technical bids of three

bidders, namely M/s Panchaghati Construction (the

appellant before this Court), M/s Dalip Singh Adhikari

(the petitioner before the Writ Court), M/s L.D. Binwal,

the Technical Committee rejected the technical bid of

A.R. Thermosets Pvt. Ltd.

3. M/s Panchaghati Construction, the respondent

No.5, and the appellant before this Court, filed a

complaint on 03.02.2020 against the petitioner M/s Dalip

Singh Adhikari, ostensibly, on the ground that the legal

status of the partnership firm of the petitioner was

unclear. Immediately, on 04.02.2020, the petitioner,

M/s Dalip Singh Adhikari submitted its objections to the

complaint. In its objection, the petitioner admitted that

there has been a change in the 3 composition, as the

members of the partnership firm had increased.

However, the change in the number of partners does not

change "the legal status" of the partnership firm.

4. Disagreeing with the reply submitted by the

petitioner, by order dated 03.03.2020, the Technical

Evaluation Committee, declared the petitioner's bid as

nonresponsive on the ground of "doubtful legal status".

On 07.03.2020, the financial bid was opened. It was

discovered that the respondent No.5, M/s Panchghati

Construction is the lowest bidder.

5. Meanwhile, since the petitioner was aggrieved

by order dated 03.03.2020, it filed a writ petition before

the learned Single Judge. Although, the petitioner had

also filed a stay application, this Court declined to grant

any stay in favour of the petitioner. Therefore, by order

dated 05.09.2020, the Procurement Evaluation

Committee recommended that the bid of the respondent

No.5, M/s Panchghati Construction, should be accepted.

However, it was an admitted fact that despite the said

recommendation, no work order was issued to the

respondent No.5.

6. After hearing all the learned counsel for the

parties, by order dated 18.11.2020, the learned Single

Judge allowed the writ petition, and set-aside the order

dated 03.03.2020.

7. Since the review applicant - appellant was

aggrieved by order dated 18.11.2020, it had filed the

Special Appeal No. 300 of 2020 before this Court. At the

time of the hearing of the said appeal, this Court

observed that even as of today, i.e. time of the hearing,

no work order was issued to the appellant. After hearing

the parties at length, the order dated 22.09.2021, under

review, was passed by this Court, by which the Special

Appeal was dismissed.

8. Heard Mr. Sanjay Bhatt, learned counsel for

the review applicant, and perused the judgment under

review.

9. Mr. Sanjay Bhatt, the learned counsel for

the review applicant (appellant in the Special Appeal

No.300 of 2020), submits that the partner of the firm,

respondent No. 1, namely M/s Dalip Singh Adhikari, is

highly influential person, who used to obtain work by

playing fraud. A work contract of almost Rs. 123 crores

was obtained by the respondent No. 1 by annexing

forged documents. After inquiry, a detailed report was

submitted by the Chief Engineer, Kumaun, on

15.06.2017. On the basis of the Inquiry Report dated

15.06.2017, a First Information Report was registered

against the partner of the respondent No. 1 under

Sections 420, 467, 468 and 471 of IPC. However,

subsequently, the Trial Court discharged him. Though

the discharge order, passed in the said criminal case,

has attained finality, the fact remains that the

respondent no.1 had misappropriated the public

money.

10. Mr. Sanjay Bhatt, the learned counsel for

the review applicant, has relied upon the following

judgments of the Hon'ble Supreme Court:-

(1) AIRONLINE 2020 SC 959

(2) AIRONLINE 2020 SC 466

(3) AIR 2016 SC 4305

(4) AIR 2016 SC 4946

(5) AIR 1998 SC3085

(6) (2007) 14 SCC 517

(7) AIR 1996 SC 2160

(8) AIR 2000 SC 1287

(9) AIR 1996 SC 51

(10) AIR 1996 SC 11

11. At this stage, it is necessary to refer to the

provisions of Rule 1 of Order XLVII of the Code of Civil

Procedure. Rule 1 of Order XLVII of the Code of Civil

Procedure reads as under:-

1. Application for review of judgment- (1) Any person considering himself aggrieved-

(a) by a decree or Order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or Order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or Order made, or on account of some mistake or error

apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or Order made against him, may apply for a review of judgment of the Court which passed the decree or made the Order.

(2) A party who is not appealing from a decree or Order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.

[Explanation-The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.

12. The judgments, cited by the learned

counsel for the review applicant, are not applicable in

the present matter as these judgments are not related

to the review proceedings.

13. It is well settled that a review is not an

appeal. The limitation on exercise of the powers of

review are well settled. The first and foremost

requirement for entertaining a review application is

that the order, review of which is sought, suffers from

any error apparent on the face of the order. In the

absence of any such error, finality attached to the

judgment cannot be disturbed.

14. In State of West Bengal and others vs.

Kamal Sen Gupta and Another, [(2008) 8 SCC

612], the Hon'ble Supreme Court observed that the

term "mistake or error apparent" by its very

connotation signifies an error which is evident per se

from the record of the case and does not require

detailed examination, scrutiny and elucidation either of

the facts or the legal position. If an error is not self-

evident and detection thereof requires long debate and

process of reasoning, it cannot be treated as an error

apparent on the face of the record.

15. In view of the ratio laid down by the

Hon'ble Supreme Court in Patel Narshi Thakershi

and others vs. Shri Pradyumansinghji, AIR 1970

SC 1273, the power of review can be exercised for

correction of a mistake. Such power can be exercised

within the limits of the 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.

16. In Lilly Thomas vs. Union of India,

(2000) 6 SC 224, the Hon'ble Supreme Court

observed and held that the power of review can be

exercised for correction of a mistake but not substitute

a view.

17. On a very reading of Rule 1, it is also

apparent that any person considering himself as

aggrieved by an order may apply for review provided

he has to establish that he "from the discovery of new

and important matter or evidence which, after the

exercise of due diligence, was not within his knowledge

or could not be produced by him at the time when the

order was made". The person applying for review the

order has to satisfy that he is aggrieved by the order,

and also that he was not in the position to bring the

fact earlier.

18. The applicant had an opportunity to raise all

his contentions on the previous occasion. When a

question of fact is produced before the party, the party

is free to decide it in any way that he thinks proper.

Failure to raise a plea does not constitute an error

apparent on the face of the record or a ground for

review. Failure to argue any point by the counsel is not

ground for review and grounds not taken earlier

cannot be allowed to be taken in the review

application. Similarly, it is not open to the review

applicant to seek review of the order even on the

grounds already rejected by this Court. It is settled

position that the review applicant cannot re-argue the

matter in the guise of review application. The review

cannot be treated as an appeal in disguise.

19. Under these circumstances, this Court is of

the view that it is an attempt to re-argue the matter,

therefore, there is no ground to entertain this review

application. The review application is liable to be

rejected; the same is rejected at the admission stage.

_____________________________ RAGHVENDRA SINGH CHAUHAN, C.J.

___________________ ALOK KUMAR VERMA, J.

Dt: 23rd November, 2021 Pant/