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Judgment
Rongon Mukhopadhyay, J
Heard Ms. Aprajita Bhardwaj, learned A.C. to A.G for the respondent/review petitioners and Dr. S.K Verma, learned counsel appearing for the appellant/respondent.
This application has been preferred by the respondent-petitioners for review of the order dated 25. 06.2018 passed in L.P.A. No. 312 of 2018 and I.A. No. 5156/2018.
It has been submitted by Ms. Aprajita Bhardwaj, learned A.C. to A.G. for the respondent-petitioners that the order passed in L.P.A. No. 312 of 2018 requires review since there is an error apparent on the face of the record. It has further been submitted that no opportunity of filing a counter affidavit was given to the respondent-petitioners either during hearing of the writ application or during the hearing of L.P.A. No. 312 of 2018. Learned counsel further submits that in W.P.(C) No. 2701 of 2018, the prayer made in the writ application was for quashing the order as contained in Memo No. 1271(S) dated 28.02.2018 by which the respondent-company herein had been restrained from participating in any other tender issued by the Road Construction Department, Jharkhand, Ranchi till the time the respondent herein completed the work allotted in its favour by the Road Construction Department since the said order is arbitrary, illegal and in violation of the principles of natural justice but the said prayer was never pressed by the learned counsel for the respondent herein, rather it was confined to the prayer for clarification regarding the applicability of concerned Memo No. 1271(S) dated 28.02.2018. Considering the limited prayer made by the petitioner (respondent herein) the learned writ court vide order dated 07.06.2018 passed in W.P.(C) No. 2701 of 2018, observed that the impugned letter shall be applicable only to the State of Jharkhand. It is canvassed that the order dated 07.06.2018 of the respondent, the writ court clarified vide order dated 08.06.2018 on subsequent prayer, that the applicability of the letter was limited only with respect to the Department of Road Construction of the State of Jharkhand. It is urged that since the respondent herein, had confined and limited its prayer, in the writ application, vis-a-vis the applicability of Memo No. 1271(S) dated 28.02.2018, therefore the petitioners (respondents in the said writ) did not raise any objection. However, in L.P.A. No. 312 of 2018 the respondents challenged the entirety of the impugned letter as per the pleadings in the writ application. It is argued that without giving an opportunity of hearing to the State of Jharkhand, the appellate court by order dated 25.06.2018 allowed the appeal.
It is canvassed that in the writ proceedings as well as in the appeal, the State of Jharkhand was deprived of the opportunity of reply to the contentions raised by the respondent-writ petitioners. It is reiterated that the order passed in W.P.(C) No. 2701 of 2018 did not affect the interest of the State, but the order passed in L.P.A. No. 312 of 2018 is contrary to the submissions advanced by the respondent herein. It is contended that the circumstances clearly indicate that the order passed in L.P.A. No. 312 of 2018 requires to be reviewed in view of the error apparent on the face of the record.
Dr. S.K. Verma, learned counsel, for the respondent herein, has supported the order passed in L.P.A. No. 312 of 2018 and contended that onus was upon the State Government to have fulfilled the requisite conditions and for giving possession of the site to the contractor. It is argued that since the State had not exercised its power for acquiring the lands, the appellate court had rightly quashed the order passed by the learned Single Judge in W.P.(C) No. 2701 of 2018. It is submitted that since the entire documents were brought on record and the reason for issuance of the impugned letter dated 28.02.2018, as contained in Memo No. 1271(S), was obviously discernible therefore, there was no necessity for the appellate court to have granted time to the State (petitioners herein) to file the counter affidavit. He submits that if the entirety of the prayer is considered in the back drop of the facts, then it is evident that the impugned letter dated 28.02.2018 is arbitrary and illegal, and therefore the appellate court had rightly set aside the said letter. It is urged that there being no error apparent on the face of the record, the present review application deserves to be dismissed. Dr Verma has referred to the judgment of the Hon'ble Supreme Court in "Kamlesh Verma versus Mayawati and Others" reported in (2013) 8 SCC 320, and stressed that the principles enumerated in the said judgment covers the facts of the instant case with respect to non-maintainability of a review application. It is contended that in view of the settled proposition and parameters the review application is not maintainable.
Heard. For proper appreciation it will be profitable to recapitulate the facts of the writ application as detailed in the writ application filed by the respondent herein. As per the pleadings the Road Construction Department of the State of Jharkhand had invited tenders along with the standard bidding documents for the work of "widening and strengthening / reconstruction of Kharsawan-Hurangda-Rajama -Kanderkuti-(Rangamati) Rargaon Road from 0.00 Km to 29.407 Km."
The writ petitioner had participated in the bidding process and was found to be the lowest bidder. A letter of acceptance was issued in favour of the writ petitioner vide letter dated 06.05.2013, and the work of construction of the road in question was awarded in his favour. An agreement between the concerned department and the writ petitioner was executed on 22. 05.2015. Consequent to entering into an agreement the work in question commenced. Some road blocks were faced by the writ petitioner since the land acquisition process was not completed by the State of Jharkhand in particular stretches of land apart from perception of threat from the extremists. The hindrances being faced by the writ petitioner was brought to the knowledge of the Deputy Commissioner, Seraikella-Kharsawan and the Executive Engineer, Road Division, Road Construction Department.
The writ petitioner had received a communication from the Engineer-in-Chief, Road Construction Department as contained in Memo No. 1271(S) dated 28. 02.2018, wherein it was indicated that on spot inspection and verification by the Chief Engineer, the work undertaken and done, by the writ petitioner, was found to be defective and accordingly an order was passed restraining the writ petitioner for further participation in any tender issued by the Road Construction Department till, such time, the petitioner completes the work in question allocated by the Road Construction Department.
Being aggrieved with the letter as contained in Memo No. 1271(S) dated 28.02.2018, the petitioner had preferred a writ application being W.P.(C) No. 2701 of 2018 accompanied by an Interlocutory Application being I.A. No. 4769 of 2018 with a prayer to stay the impugned letter dated 28.02.2018. The writ application along with the I.A. No. 4769 of 2018 was listed on 07.06.2018 before the learned Single Judge and the same was disposed off on 07.06.2018 itself.
Perusal of the order dated 07.06.2018 passed by the learned Single Judge reveals that the writ petitioner had confined its' prayer only with respect to clarification regarding the applicability of Memo No. 1271(S) dated 28.02.2018. The learned State counsel, in view of the limited prayer made by the writ petitioner, had clarified that the debarment of the writ petitioner is limited only to the State of Jharkhand.
Accordingly, the learned Single Judge disposed off the writ application on 07.06.2018 observing that the impugned letter dated 28.02.2018 is applicable only to the State of Jharkhand. However, again on the prayer of the writ petitioner the order was modified vide order dated 08.06.2018 with the clarification that the applicability of the impugned letter dated 28.02.2018 shall be with respect to the Department of Road Construction of the State of Jharkhand.
It is noticed that in view of the clarificatory order passed by the learned Single Judge on 07.06.2018 and 8. 06.2018 the doubts raised by the writ petitioners were cleared, but the writ petitioner despite the clarificatory orders passed on his limited prayer, filed L.P.A. No. 312 of 2018 along with I.A. No. 5156 of 2018 wherein the entire gamut of the prayer made in the writ application was re-agitated in the appeal.
The appeal was heard on 25.06.2018 and on the same day itself, without giving an opportunity to the State for filing a counter affidavit, the appellate court had set aside and quashed the order passed by the learned Single Judge in W.P.(C.) No. 2701 of 2018 dated 07.06.2018 as well as the impugned letter dated 28.02.2018.
The primary reason for setting aside the impugned letter was that the State Government had failed to acquire the land in question and therefore the land on which the road was to be constructed was not free from all encumbrances. In the Letters Patent Appeal a cost of Rs. 2,000/- was also imposed upon the State Government.
The writ petitioner, therefore, seems to have re-agitated his grievance with respect to the challenge made to the impugned letter dated 28.02.2018 converse to the actual stand taken by the writ petitioner in as much as he had confined his prayer only with respect to the extent of applicability of the debarment of the writ petitioner and perhaps since the prayer was confined only in order to seek a clarification the same was also not opposed to by the learned State counsel and rightly so. The impugned letter dated 28. 02.2018 clearly reveals that the writ petitioner was restrained from further participation in any tender issued by the Road Construction Department till, such time, the petitioner completes the work in question allotted to it by the Road Construction Department. The writ petitioner, therefore, acted beyond the prayer as emphasized by it on confinement of its prayer for necessary clarification, which had been sought for. In such circumstances, the writ petitioner was, as per his conduct estopped from re-agitating the grievance raised in the writ application. It is amply clear that the order dated 25.06.2018 passed in L.P.A. No. 312 of 2018 along with I.A. No. 5156 of 2018 has not addressed and/or considered the reason or the ground on which the learned Single Judge had passed the orders dated 07.06.2018 and 08.06.2018.
In 'Kamlesh Verma' (Supra) as referred to by the learned counsel for the respondent, the parameters stipulated for maintainability of a review application are as follows:
"20.1. When the review will be maintainable:
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
The words "any other sufficient reason" have been interpreted in Chhajju Ram v. Neki and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd."
The principles enunciated for holding a review as being not maintainable are depicted as under:
"20.2. When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."
Now in the backdrop of the judgment and the principles enunciated therein, and on consideration of the facts of the case in hand, as narrated, it is palpable that in the order passed in L.P.A. No. 312 of 2018 dated 25.06.2018 the error is apparent on the face of the record. The principles elucidated in the case of 'Kamlesh Verma' (supra) are not applicable to the exposited facts of the instant case. In view of the discussions made, a fortiori, the order dated 25. 06.2018 passed in L.P.A. No. 312 of 2018 read with I.A. No. 5156 of 2018 deserves to be reviewed and is, hereby, recalled and it shall be restricted only with respect to the fact that impugned letter of Memo No. 1271(S) dated 28.02.2018 shall be applicable only with respect to the Road Construction Department in the State of Jharkhand.
This review application, accordingly, stands allowed.
In the present proceedings notices were issued to the respondent on a condition that the petitioners were to deposit an amount of Rs. 25,000/- before the Registrar General of this Court within a period of four weeks. The said amount had been deposited by the petitioners. Since this Court has allowed the present review application and has reviewed the order dated 25.06.2018 passed in L.P.A. No. 312 of 2018 the amount of Rs. 25,000/- as deposited should be returned back to the petitioners. The Registrar General of this Court is accordingly directed to take steps for returning the said amount to the office of the learned Advocate General for onward communication to the concerned department.