Patna High Court
M/S Arun Deo Kumar vs The State Of Bihar on 15 May, 2025
Author: P. B. Bajanthri
Bench: P. B. Bajanthri, Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVIEW No.145 of 2023
In
Civil Writ Jurisdiction Case No.7928 of 2020
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M/s Arun Deo Kumar, a proprietorship firm, through its sole proprietor,
namely, Arun Deo Kumar, aged about 60 years, Male, Son of Shri Hira Lal,
Resident of Mahalpar, P.S. Biharsharif, District- Nalanda.
... ... Petitioner/s
Versus
1. The State of Bihar through Principal Secretary, Department of Urban
Development, Main Secretariat, Patna.
2. The Divisional Commissioner, Patna.
3. The Chairman, Biharsharif Smart City Limited, Biharsharif, Nalanda.
4. The Municipal Commissioner, Biharsharif, Nalanda.
5. The Chief Executive Officer, Biharsharif Smart City Limited, Biharsharif,
Nalanda.
6. The Executive Engineer, BUDICO-cum-Nodal Officer, Biharsharif Smart
City Limited, Biharsharif, Nalanda.
7. The Deputy Team Leader, Project Management Consultant, Biharsharif
Smart City Limited, Biharsharif, Nalanda.
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Basant Choudhary, Sr. Advocate
Mr.Chandan Kumar, Advocate
For the Opposite Party/s : Mr. Lalit Kishore, Sr. Advocate
Mr. Kanishka Shankar, Advocate
Mr. Deepak Kumar, AC to AAG-7
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE ARUN KUMAR JHA)
Date : 15-05-2025
The present civil review petition has been filed for
recalling/reviewing the order dated 20.04.2023 passed in CWJC
No. 7928 of 2020 by this Court whereby and whereunder the
writ petition filed by the review petitioner has been dismissed.
2. Briefly stated, the facts of the case, culled out from
Patna High Court C. REV. No.145 of 2023 dt.15-05-2025
2/15
the record, are that pursuant to a notice inviting tender for
construction of Jan Suvidha Kendra Building at 20 locations in
Bihar Sharif under the Smart City Mission, the petitioner
participated in the tender process and the petitioner was the
lowest bidder. After negotiation of rate, Letter of Acceptance
was issued to the petitioner. The contract was finally awarded
for a sum of Rs. 11,35,06,000/-in total. In terms of LOA and
clause 50.1 of Instructions to Bidder, the petitioner submitted
the performance security to the tune of Rs. 14,57,000/ in the
shape of Fixed Deposit and other relevant documents.
Thereafter, the petitioner was directed to submit the work
schedule of the allotted work. The petitioner was further
directed to submit drawing and design and architectural view of
the Jan Suvidha Kendra. The petitioner requested the authority
concerned to provide the work order, execute agreement, lay out
drawing and working drawing for execution of the contract. The
petitioner also requested the respondent to give permission to
start the work. The petitioner also requested the respondents to
execute agreement and issue written work order as the petitioner
was executing the work as per oral instructions. Thereafter, on
18.06.2020, 1st RA Bill for an amount of Rs. 1,62,04,447/- was submitted by the petitioner to the respondent authority. Instead Patna High Court C. REV. No.145 of 2023 dt.15-05-2025 3/15 of payment the running bill, the respondent authority has issued a letter dated 08.07.2020 by which the petitioner has been called upon to execute agreement only for the construction of Jan Suvidha Buildings in Ward No.01,0623, 29, 33, 46 and 12 within a period of three days. In reply to the aforesaid letter, the petitioner filed a detailed representation dated 13.07.2020, but the respondent nos. 3 to 6 kept pressurizing the petitioner to execute agreement only with respect to 3 wards and they have not executed the agreement.
3. Being aggrieved by the inaction on the part of the respondent authorities, the petitioner moved before this Court by filing CWJC No.7928 of 2020 with following reliefs :
"(i) For issuance of appropriate writ and/or direction upon the Respondents to execute agreement for the entire work at 20 locations in terms of the Letter of Acceptance dated 30.08.2019 in Tender No. NIT-1/2018-19 dated 11-10 2018.
(ii) For issuance of appropriate writ and/or direction upon the Respondents to forthwith pay the 1st running bill dated 18.06.2020 amounting to Rs 1,62,04,447/- (one crore Sixty Two Lakhs Four Thousand Four Hundred Forty Seven Only) raised by the Petitioner against the works done on the instruction of the Respondent pursuant to issuance of Letter of Acceptance by the Respondent in favor of the Petitioner which was duly inspected by the Respondent from time to time;
Patna High Court C. REV. No.145 of 2023 dt.15-05-2025 4/15
(iii) For a direction upon the Respondent to forthwith facilitate with the Petitioner to expedite to complete the developmental project of construction of Jan Suvidha Kendra building in 20 different wards in the town of Biharsharif and not to obstruct in the execution of the welfare project.
(iv) For issuance of appropriate writ and/or direction upon the Respondents restraining them from taking any adverse action or coercive steps against the Petitioner in execution of the present Tender Notice dated 20.01.2018; and/or for any other relief[s] for which the Petitioner may be found entitled to in the facts & circumstances of the present case."
4. This Court, after hearing the parties, vide judgment/order dated 20.04.2023 dismissed the writ petition filed by the petitioner holding that the petitioner failed to establish that he has any legal right to invoke the writ jurisdiction of this Court. Thereafter, the petitioner filed the instant review application for review of the aforesaid judgment/order dated 20.04.2023.
5. The learned senior counsel appearing on behalf of review petitioner submitted that non-execution of agreement is attributable to the respondent authorities only and the act of the respondent authorities in non-execution of agreement till date is arbitrary and against the principles of natural justice. The Patna High Court C. REV. No.145 of 2023 dt.15-05-2025 5/15 learned senior counsel further submitted that even as on date, a sum of Rs. 11,20,000/- and Rs.14,57,000/- deposited by the petitioner as EMD and Performance Security for whole of contract of Rs.11,35,06,000/- is lying with the office of the respondents last four years. The learned senior counsel further submitted that the respondent authorities are responsible and liable to pay the work done by the petitioner in the light of LOA issued by the respondents. The learned senior counsel further submitted that the claim of the petitioner regarding work done by him for which bill has been submitted to the respondent authorities on 18.06.2020 for an amount of Rs.1,62,04,447/- is still pending and the respondent authorities have not rejected or refused the claim of the petitioner. The learned senior counsel further submitted that the petitioner has been forced to work on instruction of the respondents without formal execution of the agreement and, therefore, it is incumbent upon the respondent to clear the first running bill raised by the petitioner for the works done by the petitioner and the same cannot be withheld by the respondent and it is the respondent who is responsible for delaying an important development work by not entering into an agreement in terms of LOA for all 20 wards and to enable the petitioner to execute the same by extending full cooperation. Patna High Court C. REV. No.145 of 2023 dt.15-05-2025 6/15
6. The learned senior counsel further submitted that the writ petition was dismissed mainly on two grounds, firstly that the dispute is a contractual dispute which involves adjudication of disputed question of facts which cannot be adjudicated by the writ Court and secondly as there is no agreement between the parties duly signed, the petitioner could not be helped by this Court. In this regard, the learned senior counsel submitted that both the grounds are erroneous on facts as well as on law because the respondent no. 5 has not disputed in the counter affidavit that pursuant to their verbal order, the petitioner has not undertaken any work and have not denied the fact of clear acceptance of petitioner's bid, award of contract to the petitioner and acceptance of Performance Security. Hence, there is an apparent error of fact in the judgment that the petitioner has undertaken works duly shown in the running bill of the value claimed. So far as there is no agreement between the parties, learned senior counsel submitted that the contract between the parties stands sealed and complete the moment respondent no. 5 accepted bid offer of petitioner on 30.08.2019 and further by deposit of Performance Security on 27.09.2019. The learned senior counsel further submitted that Sections 2, 3 and 4 of the Indian Contract Act, 1872 make it clear that Patna High Court C. REV. No.145 of 2023 dt.15-05-2025 7/15 acceptance of offer or promise makes the contract final unless revoked in accordance with law and there was no requirement to execute a written agreement duly signed by the parties. The learned senior counsel further submitted that in absence of denial by the respondent no.5, it is admitted fact that some work was done admittedly at the instruction of respondent no.5, which the said respondent cannot refuse to honour. The learned senior counsel further submitted that writ petitioner brought his action on the basis of a public law, i.e., Article 14 of the Constitution of India, which is protection against the arbitrariness, whim and fairness on the part of the State authorities and not invoking the private law which is the law of contract. This Court did not take this fact into consideration making its decision erroneous and, hence, liable to be reviewed. Thus, learned senior counsel submitted that there is apparent error of facts as well as law crept in the impugned judgment.
7. On the other hand, the learned senior counsel appearing on behalf of the respective respondents, reiterating the submission made in the writ petition, submitted that the writ petition was rightly dismissed by this Court since the same was not maintainable on the factual aspects of the matter and on the point of law. The learned counsel further submitted that till date, Patna High Court C. REV. No.145 of 2023 dt.15-05-2025 8/15 agreement has not been signed by the parties, as such, no payment can be processed. He has further submitted that vide letters dated 25.06.2020, 03.07.2020 and 13.07.2020, the petitioner was called for signing the agreement but he did not turn up. So, now there is no question of execution of agreement. Hence, no case is made out for review of the judgment/order dated 20.04.2023 and, as such, no interference is required by this Court in this matter.
8. It appears from perusal of judgment under review that this Court after examining the question of maintainability of the writ petition under Article 226 of the Constitution of India and after placing reliance on the decisions of the Hon'ble Apex Court in Subhash Jain vs. Rajeshwari Suman and Ors, reported in 2021 SCC Online SC 562 and Union of India and Ors. Vs. Puna Hinda, reported in (2021) 10 SCC 690 was of the view that the Court must, undoubtedly eschew, disputed questions of fact which would depend upon an evidentiary determination requiring a trial. The dispute as to whether any amount is payable or not and/or how much amount is payable are disputed questions of facts and cannot be adjudicated by the writ court. Furthermore, this Court would not come to the rescue of a person who proceeded to execute the work on verbal orders Patna High Court C. REV. No.145 of 2023 dt.15-05-2025 9/15 without any agreement being signed by the parties. If the petitioner acted upon the oral instruction of the respondent, he should be ready to face the consequence. His grievance was not redressable in the writ jurisdiction of this Court. Thus, this Court was of the view that the writ petition was not maintainable since the petitioner has not been able to establish that he has any statutory and legal right to invoke the writ jurisdiction of this Court. Moreover, this Court would be transgressing its jurisdiction if it enters into the dispute raised by the petitioner, i.e., directing the respondents to sign the agreement for all wards and making payment to the petitioner for the work done on verbal instruction.
9. It is well settled that a review proceeding cannot be equated with the original hearing of the case. A party is not entitled to seek review of a judgment merely for the purpose of re-hearing and fresh decision of the case. Review of an earlier order cannot be done unless the Court is satisfied that some material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
10. In the case of Col. Avtar Singh Sekhon v. Union of India, reported in 1980 Supp SCC 562, the Hon'ble Supreme Court in paragraph 12 held as under :-
"12. A review is not a routine procedure. Patna High Court C. REV. No.145 of 2023 dt.15-05-2025 10/15 Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. In Sow Chandra Kante v. Sheikh Habib [(1975) 1 SCC 674, 675 : 1975 SCC (Tax) 200 : 1975 SCC (L&S) 184 : (1975) 3 SCR 933, 934] this Court observed : (SCC p. 675, para 1) "A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.... The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality."
11. The scope of Order XLVII Rule 1 CPC, dealing with review of a judgment, has been succinctly stated by the Hon'ble Supreme Court in the case of Parsion Devi v. Sumitri Devi reported in (1997) 8 SCC 715 as under:-
7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. [AIR 1964 SC 1372 : (1964) 5 SCR 174] (SCR at p. 186) this Court opined:
"What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any Patna High Court C. REV. No.145 of 2023 dt.15-05-2025 11/15 substantial question of law is an 'error apparent on the face of the record'). The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error."
12. To the same effect is the decision of the Hon'ble Supreme Court in the case of Arun Dev Upadhyaya v. Integrated Sales Service Ltd. reported in (2023) 8 SCC 11, wherein in paragraph 35 it has been held as under :
"35. From the above, it is evident that a power to review cannot be exercised as an appellate power and has to be strictly confined to the scope and ambit of Order 47 Rule 1CPC. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions".
(emphasis is ours)
13. In the case of Lily Thomas v. Union of India Patna High Court C. REV. No.145 of 2023 dt.15-05-2025 12/15 reported in (2000) 6 SCC 224, the principle was reiterated by the Hon'ble Supreme Court with a caution that in exercise of power of review, the Court may correct the mistake but not to substitute the view. Relevant portion of paragraph 56 of the said judgment is reproduced below :
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 statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise..."
14. Further, scope of review is limited in the light of Order 47 Rule 1 of CPC. Hon'ble Apex Court in the case of S.Murali Sundaram vs. Jothibai Kannan & Ors. reported in 2023 SCC OnLine SC 185 elaborately considered under what circumstances courts can review its own order. Recently in yet another decision in the case of Sanjay Kumar Agarwal v. State Tax Officer (1) & Anr. reported in 2023 SCC OnLine SC 1406 Supreme Court has laid down eight principles in Para 16 which reads as under:
16. The gist of the aforestated decisions is that:
16.1. A judgment is open to review inter alia if there is a mistake or an error apparent on the face of the record.
Patna High Court C. REV. No.145 of 2023 dt.15-05-2025 13/15 16.2. A judgment pronounced by the court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so.
16.3. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review.
16.4. In exercise of the jurisdiction under Order 47 Rule 1CPC, it is not permissible for an erroneous decision to be "reheard and corrected".
16.5. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise".
16.6. Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided.
16.7. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long- drawn process of reasoning on the points where there may conceivably be two opinions.
16.8. Even the change in law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review".
15. Having regard to the facts before us, the grounds Patna High Court C. REV. No.145 of 2023 dt.15-05-2025 14/15 taken for recalling/reviewing the order dated 20.04.2023 passed in CWJC No.7928/2020 are misconceived. This Court has not expressed any opinion on claim of the petitioner to get paid from the respondents. We have also pointed out that such an exercise would require entering into the disputed question of facts. Therefore, seeking review on this ground is out of question.
Secondly, the challenge to the finding that there was no agreement between the parties is only the half of the story. What this Court recorded was that this Court would not come to rescue of the petitioner if the work was done on verbal orders without any agreement being signed by the parties. This Court further observed that if the petitioner acted upon oral instruction of the respondents, he should be ready to fact the consequences. Whether the contract was complete or enforceable, the same could not be the subject matter of the Writ Court and, for this reason, the objection of the petitioner to the finding recorded by this Court is not sustainable.
Lastly, the petitioner has taken recourse of Article 14 of the Constitution of India to seek review of the order dated 20.04.2023 passed by this Court in CWJC No. 7928 of 2020 claiming that writ was brought seeking redressal against Patna High Court C. REV. No.145 of 2023 dt.15-05-2025 15/15 arbitrariness, whims and fancy on the part of the respondent authorities, but this contention of the review petitioner stand taken care of by discussion in the aforesaid paragraphs and does not need further elaboration.
16. In the light of aforesaid discussion as well as principles laid down by the Hon'ble Apex Court in a catena of decisions including the decision rendered in the case of Sanjay Kumar Agarwal (supra), we are of the considered opinion that the petitioner has not been able to even remotely show us any material error manifest in the face of record and, therefore, the judgment under review does not fall within the scope and ambit of Order 47 Rule 1 read with Section 114 of the Code of Civil Procedure so as to recall/review the judgment/order dated 20.04.2023 passed in CWJC No. 7928 of 2020. Therefore, the civil review petition stands dismissed.
(P. B. Bajanthri, J) ( Arun Kumar Jha, J) V.K.Pandey/-
AFR/NAFR AFR CAV DATE 18.04.2025 Uploading Date 15.05.2025 Transmission Date NA