Orissa High Court
Case Details
AFR ORISSA HIGH COURT: CUTTACK RVWPET NO. 88 OF 2023 In the matter of an application under Order XLVII and Section 114 read with Section 151 of the Code of Civil Procedure, 1908 and Chapter VIII, Rule 23 of Orissa High Court Rules, 1948. --------------- Debjyoti Dutta ..… Petitioner -Versus- Bharat Sanchar Nigam Ltd. and others ….. Opp. Parties For petitioner : M/s. Biswajit Das, S. Misra, D. Chauhan, A. Sharma and Y. Harshavardhan, Advocates. For opp. parties : Mr. P.R. Barik Advocate P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE M.S. RAMAN Date of Judgment :: 05.04.2023 DR. B.R. SARANGI, J. The petitioner has filed this petition seeking review of the order dated 16.02.2023 passed in W.P.(C) No. 3586 of 2023, whereby the writ petition has been dismissed justifying rejection of the bid of the petitioner due to non- compliance of the conditions stipulated in Clause- 12.1.1 of Section-IV and Clause-5.1 of Section-VI of the Notice Inviting Tender (NIT). 2. The petitioner, by means of W.P.(C) No. 3586 of 2023, had prayed to quash the order dated 17.01.2023, which was annexed as Annexure-5 to the said writ petition, and to issue direction to the opposite parties no.1 to 3 to accept the technical bid of the petitioner and allow him to participate in the financial bid submitted for execution of the work “Laying PLB Pipe/Duct and Associated works by Open Trench Method/Trenchless Technology, Optical Fiber Cable Pulling/Blowing and slicing works etc., and drawing of Cable on Overhead for 4G Saturation Project in R.K. Nagar Area of Angul District under Dhenkanal SSA”. 3. This Court, on careful consideration of the contentions raised by learned counsel appearing for the respective parties and taking into account the stipulations made in Clause-12.1.1 of Section-IV and Clause-5.1 of Section-VI of the NIT, came to a conclusion that the same having not been complied with, opposite parties are well Page 2 of 14 justified in not opening the technical bid of the petitioner and accordingly dismissed the writ petition by passing a reasoned order on 16.02.2023, which is sought to be reviewed in the present petition. 4.
Legal Reasoning
Mr. B. Das, learned counsel appearing for the petitioner contended that the petitioner has filed this review petition on pure questions of law, which be taken into consideration by this Court. 5. Mr. P.R. Barik, learned counsel appearing for the opposite party-BSNL contended that the petitioner has sought review of the order dated 16.02.2023, by which W.P.(C) No.3586 of 2023 was dismissed due to non- compliance of certain provisions of bid documents. Therefore, review of such order cannot be sustained in the eye of law. 6. A bare look on the pleadings available in the review petition would go to show that the petitioner has made an attempt to re-open the matter once again for re- adjudication, which is not permissible in the eye of law, by way of filing of a petition for review. Page 3 of 14 7. Before delving into the merits of the case, it is at the outset necessary to go through the scope of the petition for review. In this context, it is relevant to refer to Section 114 read with Order-XLVII, Rule-1 of the CPC:- "114. Review.- Subject as aforesaid, any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed by this Code' or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit ORDER XLVII 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 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 judgement to the Court which passed the decree or made the order. for a review of (2) A party who is not appealing from a decree or order may apply judgement 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 Page 4 of 14 Appellate Court the case on which he applies for the review." 8. The apex Court in Gulab Ajwani v. Smt. Saraswati Bai, AIR 1978 SC 326 and Kalabharati Advertising v. Hemant Vimalnath Narichania, 2010(II) CLR (SC) 737 has clearly laid down that ‘review’ means a judicial re-examination of the case in certain specified and prescribed circumstances. The power of review is not inherent in a Court or Tribunal. It is a creature of the statute. A Court or Tribunal cannot review its own decision unless it is permitted to do so by statute. The Courts having general jurisdiction have no inherent power under Section 151, CPC to review its own order. The Explanation to Section 141, CPC clearly lays down that the expression “proceedings” includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution. Therefore, the provisions contained in Section 114 read with Order 47, Rule 1, CPC ipso facto may not apply to a proceeding under Article 226 of the Constitution, but its principle will apply. Page 5 of 14 9. In Chhajju Ram v. Neki., AIR 1922 PC 112, it was held by the Privy Council that analogy must be discovered between two grounds specified therein namely; (i) discovery of a new and important matter or evidence; and (ii) error apparent on the face of record, before entertaining the review on any other sufficient ground. 10. In Rajendra Kumar v. Rambhai, AIR 2003 SC 2095: 2003 AIR SCW 92 : 2002 (3) ACJ 1822; Green View Tea and Industries v. Collector, Golaghat, Assam,