The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RVWPET No.176 of 2024 (An application under Chapter-VIII Rule 10 of Orissa High Court Rules read with Section 114 read with Order-47 Rule-1 of Code of Civil Procedure, 1908) S.G.B.L. India Ltd., Cuttack and another … Petitioners -versus- State of Orissa & Others … Opposite Parties For Petitioners : Mr. A.Parija, Sr. Advocate along with Mr. B.P. Das, Advocate For Opposite Parties : Mrs. J. Sahoo, ASC Mr. D. Mohapatra, Sr. Advocate along with Associates CORAM: HON’BLE DR. JUSTICE S.K. PANIGRAHI HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :11.02.2025 DATE OF JUDGMENT:08.05.2025 G. Satapathy, J. 1. This is a review petition under Section 114 read with Order XLVII Rule 1 of the Code of Civil Procedure, 1908 (in short the “CPC”) by the petitioner praying to review the order dated 24.04.2024 passed RVWPET No.176 of 2024 Page 1 of 17 by this Court in W.P.(C) No.9783 of 2021 on the ground of error apparent on the face of record. 2. By the aforesaid order, a Division Bench of this Court of which one of us Justice G. Satapathy was a member has passed the following order in the writ:-
Legal Reasoning
“This matter is taken up by hybrid mode. 2. Heard Mr. B.P. Das, learned counsel for the petitioners; Mr. P.K. Muduli, learned Additional Government Advocate for the State opposite party no. 1; and Mr. D. Mohapatra, learned counsel appearing for opposite party nos. 2 and 3. 3. The petitioners have filed this writ petition seeking direction to the opposite parties, more particularly the opposite parties 2 and 3 to execute the supplementary agreement by suitably amending it as per the request stipulated under Annexure-19 with forthwith effect. 4. Mr. B.P. Das, learned counsel for the petitioners contended that opposite party no.2 invited bid from the reputed experienced and financially sound bidders for renovation and maintenance of Biju Pattnaik Udyan (Park) on Maintain-Build-Operative basis. The petitioners participated in the same and declared as the highest bidder. Even though the petitioners were declared as the highest bidder, the opposite parties did not the agreement, for which they have approached this Court in the present writ petition. 5. Mr. learned Additional Government Advocate contended before this Court that the agreement has not been executed between the parties as because decision has been taken at the Government level to give it to CDA without taking any P.K. Muduli, execute RVWPET No.176 of 2024 Page 2 of 17 assistance of 3rd party. Therefore, the claim of the petitioners to execute the agreement cannot be sustained in the eye of law. 6. Mr. D. Mohapatra, learned counsel appearing for CDA produced before this Court letter dated 09.05.2023 of the Vice-Chairman, CDA Cuttack under the subject administrative approval for renovation & up-gradation of Biju Patnaik Park, Sector-12, CDA, Cuttack for which an amount of Rs.24,35,34,420.96 has been granted. Therefore, it is contended that unless the work is undertaken, the amount, which has been sanctioned will be lapsed and, as such, it will not be beneficial to either of the parties. If the petitioners have any grievance, it will be open to them to approach the authorities, which can be resolved amicably between the parties. 7. Having heard learned counsel for the parties, since decision has been taken with regard to renovation & up-gradation of Biju Patnaik Park, Sector-12, CDA, Cuttack by the opposite and no 3rd party parties intervention is required, this Court is not inclined to interfere with the same and is not inclined to issue any direction to the opposite parties to proceed with the earlier tender. Once the agreement has not been executed between the parties, the benefit cannot be made admissible to the petitioners. If the petitioners have incurred certain expenses after being declared as the highest bidder, they may approach the CDA authorities, so that the same can be resolved amicably. 8. With the above observation and direction, the writ petition stands disposed of.” themselves 3. Heard, Mr. Ashok Parija, learned Senior Counsel who is assisted by Mr. Bibhu Prasad Das, learned counsel for the Petitioners, Mr. Dayananda RVWPET No.176 of 2024 Page 3 of 17 Mohapatra, learned Senior Counsel who is assisted by his associates and Smt. Jyostnamayee Sahoo, learned Additional Standing Counsel in the matter and perused the record. According to the submission of learned Sr. counsel Mr. Parija, non-consideration of document which is an agreement executed between the Petitioners and OP Nos. 2 and 3, available on record in the order dated 24.04.2024 passed by a Division Bench of this Court is an error apparent on the face of record and, therefore, the said order is liable to reviewed. Additionally, it is contended by Mr. Parija that the reliance by the Court the letter dated 09.05.2023 produced by OP Nos. 2 & 3 without knowledge of the petitioners being not served and referred in Paragraph- 6 of the order constitutes an error apparent on the face of record, since the same violates the principle of natural justice and procedure of the High Court. Similarly, the sum and substance of the argument of OP Nos. 2 and 3 is that the consideration or non- consideration of agreement in the order is to be gathered by reading the order as a whole, but not by RVWPET No.176 of 2024 Page 4 of 17 reading a sentence of the order in isolation of the whole order and the observation of the Court about non- execution of agreement between the parties can be meant in the context of non-execution of the supplementary agreement which was sought to be
Decision
executed by the Petitioners in the writ petition and the same has in fact not been executed, which is very much clear from the submission of the Petitioners reflected in the paragraph-4 of the said order and therefore, no ground being made out for review of the order, the present review petition merits no consideration. In echoing the submission of OP Nos. 2 and 3, learned ASC prays to dismiss the review petition. 4. In addressing the core issue of amenability of the order passed by a Division Bench of this Court to review on the backdrop of rival submissions, there appears no quarrel over the undisputed position of law that a review petition can be admitted in exercise of power U/S. 114 read with Order XLVII Rule 1 of CPC provided the party applying for review of the order RVWPET No.176 of 2024 Page 5 of 17 must satisfy the Court any of the three grounds, such as:- (i) discovery of new and important matter of evidence which after exercise of due diligence was not within the knowledge of the party applying for review or could not be produced by him at the time, when the decree was passed or order made, (ii) for some mistake or error apparent on the face of the record, (iii) for any other sufficient reasons. Further, it is clear beyond doubt that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order-47 Rule-1 of the CPC. The review petition has to be entertained only on the grounds enumerated therein and one of such grounds therein is error apparent on the face of record and while considering such ground, the Court has to consider such ground only, but not on any other ground. An error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points. RVWPET No.176 of 2024 Page 6 of 17 5. On a careful scrutiny of the averments taken in the review petition together with rival submissions, there appears no dispute about the plea of the petitioners for review of the order on the very limited point of error apparent on the face of record. Addressing such issue and contention, it is not in dispute that the aforesaid order was passed by the Division Bench of this Court in presence of the learned counsel for the parties and Mr. B.P. Das, learned counsel for the Petitioners appearing in the writ petition had in fact contended at the time of hearing that the OPs did not execute the agreement for which they have approached this Court in the writ petition which was also reiterated by learned Additional Government Advocate by contending inter-alia therein that the agreement has not yet been executed between the parties because decision has been taken at the Government level to give it to CDA without taking any assistance of 3rd party. It is, however, never disputed that the main prayer of the Petitioners in the writ petition is for a direction to OP Nos. 2 and 3 to execute RVWPET No.176 of 2024 Page 7 of 17 the supplementary agreement by suitably amending it in terms of Annexure-19 to the writ petition which was in fact quoted and considered by the Division Bench while passing the order after hearing the aforesaid rival submissions of the parties and the same has been quite reflected unambiguously in paragraph-7 of the order in which there is a reference to the sentence “once the agreement has not been executed between the parties, the benefit cannot be made admissible to the Petitioners” which was in fact been observed by the Division Bench referring to the submission of the Petitioners and the State, but it has never omitted to consider the original agreement executed between the parties, rather the observation of the Division Bench needs to be considered as a whole, but not in piecemeal manner. The division Bench was quite conscious about the agreement executed between the parties which can be gathered from the paragraph-3 of the aforesaid order in which the Division Bench has quoted the prayer of the Petitioners. Thus, by reading the aforesaid order as a whole, one can be quite clear RVWPET No.176 of 2024 Page 8 of 17 that the Division Bench in its order was referring to the supplementary agreement to have not been executed. Further, the order was in fact passed by a Division Bench in considering the materials placed on record on the backdrop of rival submissions and, therefore, the Division Bench of this Court having not omitted to consider the agreement executed between the parties, it cannot be said that the Division Bench has in fact not considered the agreement by making a casual reference to the sentence “once the agreement has not been executed between the parties, the benefit cannot be made admissible to the Petitioners” in isolation to the entire operative part of the order and rival submission of the parties, but such observation of the Court in the order is in fact meant for supplementary agreement. Addressing the other plea of violation of natural justice and error apparent on the face of record for referring to the letter dated 09.05.2023 by the Court without the same being served on the petitioners, it is not to be forgotten, the order was in fact passed in open Court in presence of the learned counsels for the parties RVWPET No.176 of 2024 Page 9 of 17 including Mr.B.P.Das, learned counsel for the petitioners who neither raised any objection at the time of hearing of the writ petition nor informed the Court about such letter being not served on him and, therefore, the petitioners cannot claim violation of principle of natural justice nor can it be called as a error apparent on the face of the record as contemplated under Order 47 Rule 1 of the CPC. 6. On coming back to the citation relied on by the Petitioners for review of the order in Rajender Singh Vrs. Lt. Governor, Andaman & Nicobar Islands; (2005) 13 SCC 289, it appears that appellant has relied on paragraph-15 of the aforesaid judgment, wherein the Apex Court had in fact considered the plea of the appellant to have not been able to produce some of the documents which were not in his possession at the time of hearing of this case by directing review of the order, but in the preset case, the plea of the review-Petitioners is for non- consideration of the documents placed on record which was never stated to have not been considered in the RVWPET No.176 of 2024 Page 10 of 17 order passed by the Division Bench. For better understanding and clarity, paragraph-15 of the Rajender Singh(supra) is quoted herein under:- for “15. We are unable to countenance the argument advanced by learned Additional Solicitor General appearing for the respondents. A careful perusal of the impugned judgment does not deal with and decide many important issues as could be seen from the grounds of review and as raised in the grounds of special leave petition/appeal. The High Court, in our opinion, is not justified in ignoring the materials on record which on proper consideration may justify the claim of the appellant. Learned counsel the appellant has also explained to this Court as to why the appellant could not place before the Division Bench some of these documents in possession of the which were not appellant at the time of hearing of the case. The High Court, in our opinion, is not correct in overlooking the documents relied on by the appellant and the respondents. In our opinion, review jurisdiction is available in impugned the present case since the judgment is a clear case of an error apparent on the face of the record and non- consideration of relevant documents. The appellant, in our opinion, has got a strong case in their favour and if the claim of the appellant in this appeal is not countenanced, the appellant will suffer immeasurable loss and injury. Law is well-settled that the power of judicial review of its own order by the High in every Court of plenary Court jurisdiction to prevent miscarriage of justice.” inheres RVWPET No.176 of 2024 Page 11 of 17 7. Further, the Petitioners has relied on the decision in Srinivasiah Vrs. Sree Balaji Krishna Hardware Stores; (1998) 8 SCC 312, wherein the Apex Court in paragraph nos. 2 and 8 has held as under:- “2. The point raised in the Review application was that this Court wrongly assumed that the vacant shop on the ground floor behind the shop occupied by the tenant was a 'godown' and was not a shop and that was also the admission of the tenant and also the finding of the Rent Controller and the appellate authority. On 1.4.1998, we ordered notice in the review application. The tenant appeared and filed his counter in this application. 8. The judgment rendered by us in the Civil Appeal proceeded on the assumption that the said available accommodation was in the nature of shop. This assumption, as shown above, was not correct. The findings of the Rent Controller or the Appellate authority above set out that this accommodation was in the nature of a 'godown' were not brought to our notice as the concerned judgments were not filed in the paper book. There is, therefore, ample justification for interference in our review jurisdiction. We accordingly accept the finding of the said tribunals and hold that the objection raised by the tenant cannot be sustained.” This Court on a respectful consideration of the aforesaid observation of the Apex Court in RVWPET No.176 of 2024 Page 12 of 17 paragraph nos. 2 and 8 found it distinguishable from the facts of the present case and thereby, considers it not helpful to the petitioners. 8. A careful conspectus of discussion made hereinabove together with the law laid down by the Apex Court in the decision referred to above, this Court is of the considered view that there is no error apparent on the face of record and the Petitioners cannot use subterfuge to contend that the agreement was in fact not considered by the Division Bench by making a casual reference to one sentence of the order in isolation to the entire order which has in fact been passed by duly considering the rival submissions. Hence, no ground for review has been made out by the Petitioners to entertain this review application. 9. Be that as it may, the Petitioners in the writ petition in fact have sought for a direction to OP Nos. 2 and 3 to execute the supplementary agreement by suitably amending it which is in fact in the guise of specific performance of contract, but contractual obligation has to be performed within the contours of RVWPET No.176 of 2024 Page 13 of 17 the terms and conditions of the agreement executed between the parties and specific performance of contract can be enforced by a Civil Court, however, the same cannot be entertained in the writ petition. In this regard, this Court considers it useful to refer to paragraph-22 of the decision in Jagdish Mandal Vrs. State of Orissa; (2007) 14 SCC 517, wherein the Apex Court has held as under:- “22.Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides. Its purpose is to check whether choice or decision is made 'lawfully' and not to check whether choice or decision is 'sound'. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts functions. are essentially commercial Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a RVWPET No.176 of 2024 Page 14 of 17 civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. xxx xxx xxx xxx xxx xxx” 10. This Court is quite conscious of the alternative submissions advanced for the Petitioners that existence of alternate remedy does not bar the exercise of jurisdiction under Article 226 of the Constitution of India. In this regard, the Petitioners have relied upon paragraph 82 of the decision in M.P. Power Management Co. Ltd. Vrs. Sky Power Southeast Solar India(P) Ltd.; (2023) 2 SCC 703, wherein the Apex Court at paragraph-82.7 has held as under:- “82.7 The existence of an alternate remedy, is, undoubtedly, a matter to be borne in mind in declining relief in a Writ Petition in a contractual matter. Again, the question as to whether the Writ Petitioner must be told off the gates, would depend upon the nature of the claim and relief sought by the petitioner, the questions, which would have to be decided, and, most RVWPET No.176 of 2024 Page 15 of 17 fact, resolution of which there are disputed importantly, whether questions of is necessary, as an indispensable prelude to the grant of the relief sought. Undoubtedly, while there is no prohibition, in the Writ Court even deciding disputed questions of fact, particularly when the dispute surrounds demystifying of documents only, the Court may relegate the party to the remedy by way of a civil suit.” 11. Further, it is found from the record and not disputed by any of the parties that the park for which the original agreement was executed, has already been inaugurated and has been opened for the use of general public pursuant to the direction of this Court in W.P.(C) P.I.L. No. 22990 of 2014 and the Division Bench of this Court has also directed in the order that if the Petitioners have incurred any certain expenses after being declared as the highest bidder, they may approach the CDA authorities so that the same can be resolved amicably and, therefore, even if allowing the review petition would not be helpful to the Petitioners to redress their grievance for execution of supplementary agreement which is the main prayer made by the Petitioners in the writ petition. Thus, the RVWPET No.176 of 2024 Page 16 of 17 Petitioners have neither made out a case for review either on law or facts. 12. Resultantly, the review petition being devoid of merit stands dismissed on contest, but in the circumstance, no order as to costs. (G. Satapathy) Judge Dr. S.K. Panigrahi, J. I Agree. (Dr. S.K. Panigrahi) Judge Orissa High Court, Cuttack, Dated the 8th day of May, 2025/Priyajit Signature Not Verified Digitally Signed Signed by: PRIYAJIT SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 09-May-2025 13:24:36 RVWPET No.176 of 2024 Page 17 of 17