Mr. S.C. Arora, Advocate for the v. Barde
Case Details
{1} RA 14.24 R.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADREVIEW APPLICATION NO. 14 OF 2024INWRIT PETITION NO. 2212 OF 2023GENERAL MANAGER, TELECOM AND OTHERSVERSUSM/S EARTH BUILDCON AND ANOTHER.…Mr. S.C. Arora, Advocate for the applicant.Mr. Parag V. Barde, Advocate for respondent No.1/petitioners in writpetitionSmt. Sudha Chintamani, Standing Counsel for respondent No. 2 CORAM : RAVINDRA V. GHUGE & S.G. CHAPALGAONKAR, JJ. DATE : 28th MARCH, 2024. ORDER (Per S. G. Chapalgaonkar, J) :-1.The Applicant seeks review of the order dated 12th April,2023, passed by this Court in W.P. No. 2212 of 2023. The Petition wasfiled by the Respondent, impugning the order dated 14.2.2023 passed byApplicant No.1 by which, the Respondent firm was banned fromparticipating in future tenders of BSNL w.e.f. 14.2.2023. This courtallowed the Writ Petition and set aside the order dated 12.4.2023 passedby Applicant No.1.2.Mr. S.C. Arora, learned advocate appearing for the Applicantsubmits that in the year 2016, Respondent No.1 had participated in thetender floated by BSNL office Jalna, for laying optical fiber cable inBhokardan and Ghansawangi Clusters. Respondent No.1 was thesuccessful bidder. He relied upon the experience certificate issued by the
Facts
{2} RA 14.24 R.odtIdea Cellular to meet the Tender condition regarding similar work. TheRespondent No.1 submitted an undertaking and declaration that all theinformation, documents, photo copies of documents, certificates enclosedalongwith the tender offer, are correct and that if anything is found falseand/or incorrect and/or reveals any suppression of fact at any time,BSNL would have right to debar tender offer/ cancel LOI/award ofwork/work order if issued and forfeit the EMD/SD/Bill pending with theBSNL. In addition, BSNL may debar the contractor from participation inits future tenders.3.It was subsequently revealed that the work done certificatedated 27.4.2016, relied by Respondent No.1, purported to have beenissued by Idea Cellular Limited, is fake/false document. Consequently, ashow cause notice was issued to the Respondent No.1 and pending billamount of Rs. 13,15,100/- was forfeited. Lateron, in pursuance of theadvice of the Central Vigilance Office, New Delhi, new business with theRespondent No.1 firm was banned w.e.f. 14.2.2023. The RespondentNo.1 had challenged the said order in W.P. No. 2212 of 2023. This Courtallowed the writ petition vide order dated 12.4.2023 and set aside theorder of ban passed against Respondent No.1.4.Mr. Arora, the learned Advocate appearing for the Applicanturged to recall/review the order dated 12.4.2023 on the ground that theRespondent No.1 had given undertaking while obtaining the tender thatin case of any fraud or suppression of material information, BSNL hadright to debar the tenderer and also forfeit EMD/SD/Bill amount andfurther debar him from participating in the future tenders. The CentralVigilance Commission, New Delhi had advised the Applicant to takebanning action against Respondent No.1 and on such advice the order {3} RA 14.24 R.odtimpugned in the Writ Petition was passed. He would further submit thatthe Respondent No.1 had secured the work under tender on the basis offalse work done certificate dated 27.4.2017. The Idea Cellular Company,vide communication dated 27.11.2020 confirmed that the certificatedated 27.4.2017 is a false document. Respondent No.1 completed thetender work that was secured based on the forged document andobtained Experience Certificates dated 27.4.2017, 2.11.2017 and16.6.2018 from the Applicant company and secured further contractsfrom the Applicant as well as other Government Departments andindulged in perpetuity of fraud. Mr. Arora would further submit that theaction of banning the business was entirely independent, apart fromaction dated 6.5.2021 regarding forfeiture of bills. Consequently, heseeks review of the order dated 12.4.2023 passed by this Court.5.Mr. Barde, learned advocate appearing for Respondent No.1strongly opposes the prayer. He submits that the Respondent No.1 wasserved with a show-cause-notice dated 26.2.2021 and after consideringthe reply filed by Respondent No.1, the final action of forfeiture ofpending bills worth Rs. 13,15,100/- has been taken against respondentNo.1. Lateron, vide order dated 14.2.2023 further action to ban thebusiness with the Respondent No.1 firm was taken without following theprinciples of natural justice. Further, such action was in the nature ofdouble penalty for a single default. This Court after appreciating theaforesaid circumstances allowed the Writ Petition and quashed and setaside the impugned order, imposing ban against Respondent No.1. Hesubmits that the grounds raised in the review application are regardingfactual aspects and merit of the matter and do not constitute goodgrounds for review.
Legal Reasoning
{5} RA 14.24 R.odtVigilance Office, New Delhi, which has been set aside by this Court.Therefore, the ground of review sought to be urged are based on the verysame material that was available and considered by this court whilepassing the order under review. The second contention is that theRespondent has obtained the Experience Certificates from the BSNLoffice on the basis of work executed and now he is using same forsecuring further works. In our considered view it cannot be a goodground for review. Such contention was neither subject matter of theWrit Petition, nor can it be advanced beneficially to ask review of theorder passed by this court in writ petition.10.Consequently, there is no merit in the application. Samestands dismissed.[S.G. CHAPALGAONKAR, J.] [ RAVINDRA V. GHUGE, J.] grt/-
Arguments
{4} RA 14.24 R.odt6.We have considered the rival submissions advanced by thelearned advocates appearing on behalf of respective parties. We haveperused the grounds of review carved out in the application. It is tritethat this Court can review its own order only when the groundsprescribed under Section 114 and/or Order 47 of the CPC, 1908 exist.The errors leading to miscarriage of justice can be remedied when thepatent and apparent errors on face of record have been occurred whilepassing the order. Even the review is possible when a new or importantmatter has been discovered which was not within the knowledge of theapplicant at the time of passing the order under review.7. The Honourable Supreme Court of India in the case of “LilyThomas and others Vs. Union of India” (2000) 6 SCC 224 and in the caseof “State of Rajasthan vs. Surendra Mohnot” reported in AIR 2015 SC2925, elaborated the scope of the powers of review. Keeping in mind theprinciples of law espoused in the said judgments, the grounds of reviewadvanced on behalf of the applicant need to be examined.8.The order under review depicts that this Court set aside theorder dated 14.2.2023 issued by the Applicant No.1 on the ground thatthere can not be double punishment for the very same default. No suchpowers are vested with the authority. Secondly, the source of power withthe respondent authority does not justify imposing ban on the Petitioner.9.Going by the grounds raised in this application andsubmissions advanced on behalf of the Applicant, it can be gathered thatafter taking final action for default of the Respondent No.1 regardingforfeiture of bill amount of Rs. 13,15,100/- in the year 2021, secondaction dated 14.2.2023 had been taken as per the advice of Central