Orissa High Court
Case Details
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 State of Odisha &Ors. -versus- …. …. Petitioner(s) Opposite Party (s) Advocates appeared in this case throughHybrid Arrangement Mode: For Petitioner(s) For Opposite Party(s) : : Mr.Avijit Pal, Adv. 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 Page 1 of 10 Signature Not Verified
Legal Reasoning
Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 14-Aug-2025 17:09:25 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. Page 2 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 14-Aug-2025 17:09:25 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 Page 3 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 14-Aug-2025 17:09:25 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. Page 4 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 14-Aug-2025 17:09:25 II. PETITIONER’SSUBMISSIONS:
Legal Reasoning
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 Page 5 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 14-Aug-2025 17:09:25 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 1(2012)8 SCC 148. Page 6 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 14-Aug-2025 17:09:25 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 Page 7 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 14-Aug-2025 17:09:25 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: for dealing with “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 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 2(1964) 5 SCR 174. 3(2000) 6 SCC 224. Page 8 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 14-Aug-2025 17:09:25 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 Page 9 of 10 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 14-Aug-2025 17:09:25 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.
Decision
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. G. Satapathy, J.I agree. Orissa High Court, Cuttack, Dated the 8th August, 2025/ (Dr.S.K. Panigrahi) Judge (G. Satapathy) Judge Page 10 of 10