Madhya Pradesh High Court
Rachana Construction Co. Through Its ... vs The State Of Madhya Pradesh on 4 August, 2020
Author: Vivek Rusia
Bench: Vivek Rusia
THE HIGH COURT OF MADHYA PRADESH
R.P. No. 670/2020
Rachana Construction Co. V/s. State of M.P. & others.
-: 1 :-
Indore, dated: 04.08.2020
Appellant/petitioner by Shri R.S.Chhabra, Advocate.
Respondent/State by Shri Pushyamitra Bhargava, Addl.
Advocate General.
Heard on question of admission and interim relief.
ORDER
Per Vivek Rusia, J:
Being aggrieved by the decision taken by the Evaluation Committee dated 13.3.2020 whereby the appellant/petitioner was declared non-responsive for want of fulfilling the criteria under Clause 2.2.2.2 (ii) of RFP document for one similar work of 25% of the estimated project cost, a writ petition No. 8404/2020 was filed and after the dismissal of the writ petition vide order dated 2.7.2020 appellant/petitioner is before this court by way of this review petition.
2. Facts of the case, in a nutshell, are that the appellant/petitioner is a partnership firm having its registered office at Panoli, Teh. Ankleshwar, District Bharuch, Gujarat, engaged in the construction of highway, bridge, flyover, etc. The respondents issued a tender for the construction of an elevated corridor from LIG Square to Navlakha Square, A.B. Road in Indore city. In response to the aforesaid NIT, the appellant/petitioner amongst 11 others was one tenderer. The technical bids of all the 11 bidders were opened by Office of Chief Engineer, MP PWD, Bridge Zone, Bhopal on 3.2.2020.
THE HIGH COURT OF MADHYA PRADESH R.P. No. 670/2020 Rachana Construction Co. V/s. State of M.P. & others.
-: 2 :-All the 11 tenders documents were placed before the Evaluation on 12.3.2020, which has deliberated the technical evaluation, and out of 11 bidders, only 5 bidders were found technically responsive. The appellant/petitioner has been declared non-responsive due to non-fulfilling criteria under Clause 2.2.2.2 (ii) of RFP document. The Evaluation Committee in its meeting held on 1.5.2020 re-evaluated the technical bid of the appellant/petitioner and 3 other non- responsive companies including U.P. State Bridge Corporation Ltd., Lucknow, and again held that the representation submitted by the appellant/petitioner is not satisfactory and not eligible for opening of financial bid.
3. Being aggrieved by the decision of the Evaluation Committee taken on 13.3.2020 and 1.5.2020 the appellant/petitioner filed a writ petition before this Court inter alia on the ground that as per the certificate issued by Dy. Chief Project Manager, Engg., DFCCIL, Ahmedabad, the appellant/petitioner is doing the construction work of two numbers of road overbridges between Kamil and Unjha (693/9-694 Kms.) of the total value of the contract is Rs.76,87,90,596.00 and out of which the bill amount Rs.68,71,06,609.00 has been paid up to 16.1.2020
4. Meanwhile, U.P. State Bridge Corporation Ltd. also filed W.P. No.6681/2020 before this Court who was also declared non-responsive in the meeting held on 13.3.2020.
THE HIGH COURT OF MADHYA PRADESH R.P. No. 670/2020 Rachana Construction Co. V/s. State of M.P. & others.
-: 3 :-Vide interim order dated 17.3.2020 the Division Bench of this Court directed the respondents to open the financial bid of U.P. State Bridge Corporation Ltd. also and which shall be subject to the outcome of the writ petition. In compliance of the aforesaid interim order, the Evaluation Committee in its meeting dated 1.5.2020 has decided to open the financial bid of U.P. State Bridge Corporation Ltd. along with other responsive bidders. After the opening of the financial bid, the U.P. State Bridge Corporation Ltd. was found L1. Later on, vide order dated 15.06.2020 the Division Bench of this Court has allowed the said writ petition with directions to the respondents to take consequential action by issuing LOI to the appellant/petitioner i.e. U.P. State Bridge Corporation Ltd.
6. In the writ petition filed by the appellant/petitioner, the respondents filed the reply by submitting that the total cost of construction of present work is Rs.272.66 Crores and the bidder should have an experience of completing and constructing of a single project with the cost of to Rs.68.17 Crores i.e. 25% of the present work cost. The documents submitted by the appellant/petitioner reveals that the construction work of two numbers of road overbridges between Kamil and Unjha (693/9-694 Kms.) has been completed upto 95% with total value Rs.68,71,06,609.00 thus, the appellant/petitioner was not found fulfilling the eligibility criteria regarding work experience and hence, the THE HIGH COURT OF MADHYA PRADESH R.P. No. 670/2020 Rachana Construction Co. V/s. State of M.P. & others.
-: 4 :-tender of the appellant/petitioner has rightly been declared as non-responsive.
7. After hearing the learned counsel for the parties at length this court has dismissed the writ petition on the ground that the certificate issued by DFCCIL, Ahmedabad, reveals that the appellant/petitioner is undertaking construction work of 2 No. of road overbridges of the total contract value Rs.76,87,90,595.00, therefore, the construction of one road overbridge would be half of the total contract value, though the appellant/petitioner might have signed one contract for two overbridges, but the cost of one overbridge would be less than 68.17 Crores which is 25% of the present work, hence, the Evaluation Committee has not committed any error while declaring the appellant/petitioner as non-responsive.
Now the appellant/ petitioner has again approached this court by way of the review petition on following grounds:-
(i) That this Hon'ble Court grossly erred in misconstruction of clause 2.2.2.2 (ii) of the Tender in para 9 of the impugned order. The Hon'ble Court erred in dividing the construction of two Roads Over Bridges which were an indispensable part of the same contract. The Tender document does not stipulate that only one road overbridge could have been made under one contract. The term "one similar work"
ought not to have been interpreted in such a restricted and pedantic manner. This restricted interpretation THE HIGH COURT OF MADHYA PRADESH R.P. No. 670/2020 Rachana Construction Co. V/s. State of M.P. & others.-: 5 :-
has resulted in a gross miscarriage of justice as if the Petitioner had passed his technical bid, it would have been awarded the contract as its bid was lower than the L-1 bidder by Rs. 13 crores.
(ii) That financial bid submitted by the petitioner was Rs.
293.25 crores and if the same had been accepted, the State Exchequer would have saved Rs. 13 crores.
(iii) That in cases of grave miscarriage of justice, even under review jurisdiction, this Hon'ble Court is empowered to re-open and adjudicate the matter on merits. Learned counsel appearing for the appellant relies upon the judgment of Rajender Singh Vs. Lt. Governor Andaman & Nicobar Islands and others reported in (2005) 13 SCC 289 and Food Corporation of India and another Vs, Seil Ltd. and others reported in (2008) 3 SCC 440.
We have heard the learned counsel for the parties and peruse the record and in our considered opinion this review petition deserves to be dismissed.
The appellant/petitioner has already argued these ground in the writ petition and now this review petition has been filed on all the grounds which had already raised in the writ petition.
That scope of interference in the review petition is very limited as held in the case of Kamlesh Verma Vs. Mayawati , reported in (2013) 8 SCC 320 in which the THE HIGH COURT OF MADHYA PRADESH R.P. No. 670/2020 Rachana Construction Co. V/s. State of M.P. & others.
-: 6 :-Apex Court has summarised the principles of review, the relevant para are reproduced below:-
8. The only point for consideration in this petition is whether the review petitioner has made out a case for reviewing the judgment and order dated 6-7-2012 and satisfies the criteria for entertaining the same in review jurisdiction? Review jurisdiction
9. Article 137 of the Constitution of India provides for review of judgments or orders by the Supreme Court which reads as under:
"137. Review of judgments or orders by the Supreme Court.--Subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it."
10. Order 47 Rule 1(1) of the Code of Civil Procedure, 1908 provides for an application for review which reads as under:
"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 which 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 judgment to the court which passed the decree or made the order."
11. Further, Part VIII Order 40 of the Supreme Court Rules, 1966 deals with the review and consists of four rules. Rule 1 is important for our purpose which reads as under:
"1. The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order 47 Rule 1 of the Code, and in a criminal proceeding except THE HIGH COURT OF MADHYA PRADESH R.P. No. 670/2020 Rachana Construction Co. V/s. State of M.P. & others.-: 7 :-
on the ground of an error apparent on the face of the record."
12. This Court has repeatedly held in various judgments that the jurisdiction and scope of review is not that of an appeal and it can be entertained only if there is an error apparent on the face of the record. A mere repetition through different counsel, of old and overruled arguments, a second trip over ineffectually covered grounds or minor mistakes of inconsequential import are obviously insufficient. This Court in Sow Chandra Kante v. Sk. Habib held as under: (SCC p. 675, para 1) "1. Mr Daphtary, learned counsel for the petitioners, has argued at length all the points which were urged at the earlier stage when we refused special leave thus making out that a review proceeding virtually amounts to a rehearing. May be, we were not right in refusing special leave in the first round; but, once an order has been passed by this Court, a review thereof must be subject to the rules of the game and cannot be lightly entertained. 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. A mere repetition, through different counsel, of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the insistence of counsel's certificate which should not be a routine affair or a habitual step. It is neither fairness to the court which decided nor awareness of the precious public time lost what with a huge backlog of dockets waiting in the queue for disposal, for counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost. The Bench and the Bar, we are sure, are jointly concerned in the conservation of judicial time for maximum use. We regret to say that this case is typical of the unfortunate but frequent phenomenon of repeat performance with the review label as passport. Nothing which we did not hear then has been heard now, except a couple of rulings on points earlier put forward. May be, as counsel now urges and then pressed, our order refusing special leave was capable of a different course. The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality."
THE HIGH COURT OF MADHYA PRADESH R.P. No. 670/2020 Rachana Construction Co. V/s. State of M.P. & others.
-: 8 :-(emphasis in original)
13. In a criminal proceeding, review is permissible on the ground of an error apparent on the face of the record. A review proceeding cannot be equated with the original hearing of the case. In Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, this Court, in paras 8 and 9 held as under: (SCC pp. 171-
72) "8. It is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that 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: Sajjan Singh v. State of Rajasthan. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will review its judgment: Girdhari Lal Gupta v. D.H. Mehta. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice: O.N. Mohindroo v. District Judge, Delhi. Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in Order 47 Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record (Order 40 Rule 1 of the Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except 'where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility': Sow Chandra Kante v. Sk. Habib.
9. Now, besides the fact that most of the legal material so assiduously collected and placed before us by the learned Additional Solicitor General, who has now been entrusted to appear for the respondent, was never brought to our attention when the appeals were heard, we may also THE HIGH COURT OF MADHYA PRADESH R.P. No. 670/2020 Rachana Construction Co. V/s. State of M.P. & others.
-: 9 :-examine whether the judgment suffers from an error apparent on the face of the record. Such an error exists if of two or more views canvassed on the point it is possible to hold that the controversy can be said to admit of only one of them. If the view adopted by the Court in the original judgment is a possible view having regard to what the record states, it is difficult to hold that there is an error apparent on the face of the record."
14. Review of the earlier order cannot be done unless the court is satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. This Court in Col. Avtar Singh Sekhon v. Union of India held as under: (SCC p. 566, para 12) "12. A review is not a routine procedure. 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. Sk. Habib this Court observed: (SCC p. 675, para 1) '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.'"
15. 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 the record justifying the Court to exercise its power of review. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. This Court in Parsion Devi v. Sumitri Devi held as under: (SCC pp. 718-19, paras 7-9) "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. this Court opined:
(AIR p. 1377, para 11) '11. What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any 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 THE HIGH COURT OF MADHYA PRADESH R.P. No. 670/2020 Rachana Construction Co. V/s. State of M.P. & others.-: 10 :-
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.'
8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma this Court once again held that 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 CPC.
9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. 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 the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition, it must be remembered has a limited purpose and cannot be allowed to be 'an appeal in disguise'."
16. Error contemplated under the Rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. The power of review can be exercised for correction of a mistake but not to substitute a view. The mere possibility of two views on the subject is not a ground for review. This Court, in Lily Thomas v. Union of India held as under: (SCC pp. 250-53, paras 54, 56 & 58) "54. Article 137 empowers this Court to review its judgments subject to the provisions of any law made by Parliament or any rules made under Article 145 of the Constitution. The Supreme Court Rules made in exercise of the powers under Article 145 of the Constitution prescribe that in civil cases, review lies on any of the grounds specified in Order 47 Rule 1 of the Code of Civil Procedure which provides:
'1. Application for review of judgment.--(1) Any person considering himself aggrieved--
THE HIGH COURT OF MADHYA PRADESH R.P. No. 670/2020 Rachana Construction Co. V/s. State of M.P. & others.-: 11 :-
(a) by a decree or order from which an appeal is allowed, but from which 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 judgment to the court which passed the decree or made the order.' Under Order 40 Rule 1 of the Supreme Court Rules no review lies except on the ground of error apparent on the face of the record in criminal cases. Order 40 Rule 5 of the Supreme Court Rules provides that after an application for review has been disposed of no further application shall be entertained in the same matter.
* * *
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. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment.
* * *
58. Otherwise also no ground as envisaged under Order 40 of the Supreme Court Rules read with Order 47 of the Code of Civil Procedure has been pleaded in the review petition or canvassed before us during the arguments for the purposes of reviewing the judgment in Sarla Mudgal case. It is not the case of the petitioners that they have discovered THE HIGH COURT OF MADHYA PRADESH R.P. No. 670/2020 Rachana Construction Co. V/s. State of M.P. & others.
-: 12 :-any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal case. We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting Section 494 amounted to violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words 'any other sufficient reason appearing in Order 47 Rule 1 CPC' must mean 'a reason sufficient on grounds at least analogous to those specified in the rule' as was held in Chhajju Ram v. Neki and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius. Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In T.C. Basappa v. T. Nagappa, this Court held that such error is an error which is a patent error and not a mere wrong decision. In Hari Vishnu Kamath v. Ahmad Ishaque, it was held: (AIR p. 244, para 23) '23. ... [I]t is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? The learned counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated.
Mr Pathak for the first respondent contended on the strength of certain observations of Chagla, C.J. in Batuk K. Vyas v. Surat Borough Municipality, that no error could be said to be apparent on the face of the record if it was not self-evident and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of THE HIGH COURT OF MADHYA PRADESH R.P. No. 670/2020 Rachana Construction Co. V/s. State of M.P. & others.
-: 13 :-cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.' Therefore, it can safely be held that the petitioners have not made out any case within the meaning of Article 137 read with Order 40 of the Supreme Court Rules and Order 47 Rule 1 CPC for reviewing the judgment in Sarla Mudgal case. The petition is misconceived and bereft of any substance."
17. In a review petition, it is not open to the Court to reappreciate the evidence and reach a different conclusion, even if that is possible. Conclusion arrived at on appreciation of evidence cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. This Court in Kerala SEB v. Hitech Electrothermics & Hydropower Ltd. held as under: (SCC p. 656, para 10) "10. ... In a review petition it is not open to this Court to reappreciate the evidence and reach a different conclusion, even if that is possible. The learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise."
18. Review is not rehearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled argument is not enough to reopen THE HIGH COURT OF MADHYA PRADESH R.P. No. 670/2020 Rachana Construction Co. V/s. State of M.P. & others.
-: 14 :-concluded adjudications. This Court in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd., held as under: (SCC pp. 504-505, paras 11-
12) "11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.
12. When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of 'second innings' which is impermissible and unwarranted and cannot be granted."
19. 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 CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction. Summary of the principles
20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
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 THE HIGH COURT OF MADHYA PRADESH R.P. No. 670/2020 Rachana Construction Co. V/s. State of M.P. & others.
-: 15 :-analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd.
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.
It is clear from the above verdict that review will be maintainable upon discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the petitioner or could not be produced by him. That under Clause 2.2.2.2 (ii) all the tenders were required to submit the proof of completion of one similar work and the value of the executed work was to be at least 25% of the value of the work in the present tender. Said Clause 2.2.2.2 (ii) is reproduced below :
"2.2.2.2 (ii) For normal Highway projects (including Major Bridges/ROB/Flyovers/Tunnels):
THE HIGH COURT OF MADHYA PRADESH R.P. No. 670/2020 Rachana Construction Co. V/s. State of M.P. & others.-: 16 :-
Provided that at least one similar work of 25% of Estimated Project Cost Rs.68.17 Crores (Rs.Sixty Eight Crores Seventeen Lakhs only) shall have been completed from the Eligible Projects in Category 1 and/or Category 3 specified in Clause 2.2.2.5. For this purpose, a project shall be considered to be completed, if more than 90% of the value of work has been completed and such completed value of work is equal to or more than 25% of the estimated project cost. If any Major Bridge/ROB/Flyover/Tunnel is (are) part of the project, then the sole Bidder or in case the Bidder being a Joint Venture, any member of Joint Venture shall necessarily demonstrate additional experience in construction of Major Bridge/ROBs/Flyovers/Tunnel in the last 5(Five) financial years preceding the Bid Due Date i.e. shall have completed atleast one similar Major Bridge/ROB/Flyover having span equal to or greater than 50% of the longest span of the structure proposed in this project and in case of tunnel, if any, shall have completed construction of atleast one tunnel consisting of single or twin tubes (including tunnel(s) for roads/Railway/Metro rail/irrigation/hydro-electric projects etc.) having atleast 50% of the cross-sectional area and 25% length of the tunnel to be constructed in this project."
The aforesaid Clause specifically provides that for Highway projects including Major Bridges/ROB/Flyovers/Tunnels, at least one similar work of 25% of Estimated Project Cost Rs.68.17 Crores has been completed. The appellant/petitioner is undertaking construction work of 2 No. of road overbridges of the total contract value Rs.76,87,90,595.00, therefore, the construction of one road overbridge would be half of the total contract value. Though the appellant/petitioner might have signed one contract for two overbridges, but the cost of one overbridge would be less than 68.17 Crores which is 25% of THE HIGH COURT OF MADHYA PRADESH R.P. No. 670/2020 Rachana Construction Co. V/s. State of M.P. & others.
-: 17 :-the present work. Even otherwise the appellant has not completed the work so far, the work is said to have completed only when the competent authority issues the completion certificate. The certificate filed by the appellant is not a completion certificate, therefore, the appellant does not fulfill the condition no.2.2.2.2 of NIT. There error in dismissing the writ petition which is liable to be reviewed in this review petition So far the rate quoted by the appellant/petitioner i.e.Rs.293.25 Crores as compared to L1 i.e. 3,06,27,00,000/- and saving, Rs.13.00 Crores is concerned, once the appellant/petitioner has been declared non-responsive, then its financial bid and the rates quoted is immaterial.
Since the appellant/petitioner has failed to make out any error apparent on the face of the record, hence because of the foregoing discussion, the review petition fails and hereby dismissed.
No order as to costs.
( S.C. SHARMA ) ( VIVEK RUSIA )
JUDGE JUDGE
Alok/- Digitally signed by Alok Gargav
Date: 2020.08.07 16:51:55 +05'30'