Laxmi Dutt Binwal vs State Of Uttarakhand & Others

Ramesh Ranganathan, CJ

Heard Mr. Shiv Bhatt, learned Counsel holding the brief of Mr. Sanjay Bhatt, learned counsel for the petitioner, Mr. Ranjan Ghildiyal, learned Brief Holder for the State/ respondent nos.1 to 4 and Mr. U.K. Uniyal, learned Senior Counsel assisted by Mr. Sandeep Kothari, learned Counsel for respondent No.5.

This application (MCC 34/2019) has been filed seeking review of the order passed by us in SPA No.999 of 2019 dated 4.1.2019.

Mr. Shiv Bhatt, learned Counsel for the review petitioner, while drawing our attention to paragraph no.18 of the order passed by us, would submit that the observations made by this Court, to the effect 'none of these grounds have been either questioned in the objections submitted by the appellant-writ petitioner in his letter dated 23.8.2018, or subjected to challenge in the writ petition', suffers from an error apparent on the face of the record, in as much as the appellant could not have raised objections in his letter dated 23.8.2018 with regards the grounds of disqualification as referred to in the subsequent proceedings of the Technical Evaluation Committee dated 28.8.2018. We are satisfied that, to limited extent this Court had observed that these grounds were not questioned in the objections submitted by the appellant, the order under review suffers from an error apparent, since the petitioner could not, in his objections dated 23.8.2018, have questioned the disqualifications referred to in the subsequent proceedings dated 28.8.2018. This error would, however, not necessitate the order under review being set aside, since the fact remains that the other three disqualifications, referred to in the proceedings dated 28.8.2018, were not subjected to challenge in the writ petition; and, to the extent we had observed that it was not under challenge in the writ petition, the order under review does not suffer from any error, much less an error apparent.

Mr. Shiv Bhatt, learned Counsel for the review petitioner, would submit that the prayer in the writ petition is to call for the records, and to quash the decision dated 28.8.2018; and, if this Court had called for the records, it would have then become evident that the other three disqualifications were also without basis.

The scope of interference, in matters relating to tenders, is extremely limited. In the absence of a challenge to the other three grounds of disqualification referred to in the proceedings of the Tender Evaluation Committee dated 28.8.2018, this Court would not be justified in calling for the records, and to suo moto examine whether the other three grounds of disqualification were justified or not. The mere fact that the petitioner had sought a writ of certiorari to call for the records, and to quash the said order, would not justify this Court setting aside the three grounds of disqualification which have not even been subjected to challenge in the writ petition. In any event, that is not a ground to review the order, since it cannot be said to have resulted in an error apparent on the face of the record.

Mr. Shiv Bhatt, learned Counsel for the review petitioner, would seek to place reliance on certain documents, now filed in the review petition, to submit that these documents would disclose that the rejection of the petitioner's technical bid was not valid. In paragraph no.2 of the affidavit, filed in support of the review petition, the petitioner has stated that, due to inadvertent error and mistake by the counsel for the appellant, the necessary documents and information were not placed on record in the special appeal; and the same are being filed herewith in the present review petition.

Order XLVII Rule 1 of the Code of Civil Procedure, 1908 enables fresh documents to be filed along with the review application, only on the discovery of new and important matters of evidence which, after exercise of due diligence, was not within the knowledge of the review petitioner at the time when the order in the writ petition was passed. No such assertion is even to be found in the affidavit filed in support of the review petition. On the other hand, learned Counsel for the review petitioner seeks to rely on these documents contending that they were not filed by the Counsel by oversight. That would not justify this Court examining the order under review based on new material sought to be produced for the first time in review proceedings.

Viewed from any angle, we see no reason to review the order in Special Appeal No.999 of 2018 dated 4.1.2019, except to the limited extent indicated hereinabove.

Subject to the aforesaid observations, the review petition fails and is, accordingly, dismissed.