Page No.# 1/10 GAHC010172612026 2026:GAU- AS:13437-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WA/301/2026 SRI NIRMAL KUMAR SHARMA S/O- SRI RADHESHYAM SHARMA, R/O-12, APSARA READYMADE, JP AGARWALA PATH NEAR LACHIT PARK, P.O. AND P.S.- SIVASAGAR, DIST.- SIVASAGAR, ASSAM, PIN- 785640. VERSUS OIL AND NATURAL GAS CORPORATION (ONGC) AND 4 ORS. REPRESENTED BY ITS CHAIRMAN, HAVING ITS REGISTERED OFFICE AT -5A - 5B, NELSON MANDELA ROAD, VASANT KUNJ, NEW DELHI, 110070 2:CHIEF GENERAL MANAGER (MM) CENTRAL LOGISTIC AND PRODUCTION SERVICES PROCUREMENT GROUP CENTRAL PROCUREMENT DEPARTMENT ONGC 7TH FLOOR NBP GREEN HEIGHTS BKC BANDRA E MUMBAI MAHARASHTRA- 400051. 3:DEPUTY GENERAL MANAGER (MM) CENTRAL LOGISTICS AND PRODUCTION SERVICES GROUP CENTRAL PROCUREMENT DEPARTMENT ONGC 15TH FLOOR MAKER TOWER E CHAMUNDESHWARI NAGAR CUFFE PARADE MUMBAI MAHARASHTRA-400005. 4:THE SUPERINTENDING ENGINEER (ELECTRICAL) CENTRAL LOGISTICS AND PRODUCTION SERVICES PROCUREMENT Page No.# 2/10 GROUP CLPG CENTRAL PROCUREMENT DEPARTMENT CPD ONGC 15TH FLOOR MAKER TOWER E CUFFE PARADE MUMBAI400005. 5:SRI RAJIB HAZARIKA S/O- LATE PROBIN HAZARIKA PRESENTLY RESIDING AT B.P. CHALIHA ROAD MELACHAKAR DISTRICT- SIVASAGAR ASSAM PIN-785640 Advocate for the Petitioner : MR. L N DIHINGIA, MR. A K SAHU,MR. PAVLOV HANDIQUE Advocate for the Respondent : MR. D DAS SR. ADV (r-5), Y KHAUND (r-5),MS. NEHA BEGUM (r-5),MR. INDRAJIT BHUYAN (r-5),M BARUAH (r-5),MS M KAKOTY (r-5),R SARMAH (r-5) BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA HONOURABLE MRS. JUSTICE HELEN DAWNGLIANI ORDER Date : 10/09/2026 (Michael Zothankhuma, J) 1. Heard Mr. K.N. Choudhury, learned senior counsel assisted by Mr. P. Handique, learned counsel for the appellant. Also heard Mr. I. Chowdhury, learned senior counsel assisted by Mr. P. Baruah, learned counsel for the respondent nos. 1 to 4 and Mr. D. Das, learned senior counsel assisted by Mr. R. Sarmah, learned counsel for the respondent no. 5. 2. The appellant's case in brief is that pursuant to the NIT dated 25/07/2025 for hiring of services of 12 nos. of Scrapping Winch units for Assam Asset for five years, the appellant and the respondent no. 5 (writ petitioner), took part in the tender process along with others. The appellant being the lowest tenderer, he was selected as the successful tenderer for the contract. The same was put to challenge by the respondent no. 5 vide WP(C) No. 5768/2025 by claiming that the appellant was not Page No.# 3/10 covered under clause 29.1.1(i) of the information/instructions to the bidders, which allowed for an MSE bidder to be given preference over a non-MSE bidder. However, the appellant having been found to be an MSE bidder, the writ petition was dismissed by the learned Single Judge on 26/09/2025. 3. The respondent no. 5, after dismissal of WP(C) No. 5768/2025, came into possession of two documents/MOUs, wherein the appellant had entered into an agreement with the manufacturer of Scrapping Winch and the supplier of Vehicles, on which the Scrapping Winch were to be mounted. However, the MoUs did not contain the signatures of the appellant. As the said MoUs were a part of the bid submitted by the appellant, the respondent no. 5 filed another writ petition, i.e. WP(C) 6369/2025, with a prayer to set aside the award of the contract to the appellant, on the ground that the absence of the signature of the appellant on the two MoUs proved that the appellant was not qualified to be a bidder and the same would have been a good enough ground for not accepting the technical bid of the appellant, which had been announced on 08/09/2025. 4. The above stand of the respondent no. 5 in WP(C) 6369/2025, had been taken in relation to the “Special Terms and Conditions of the Contract” no. 3.0-A- category II- (I), (II) & (III), with the prayer for cancelling the contract given to the appellant. 5. “Special Terms and Conditions of the Contract” no. 3.0-A-category II- (I), (II) & (III), provides as follows :- “Category II: Offered scraping unit/s are yet to be acquired by the bidder I. Bidder should submit a copy of MOU/Agreement with the manufacturer/vendor or Its authorized agent to supply "New Winch" (as per technical specifications) along-with techno- commercial bid and the winch/es will be available for deployment at ONGC work site within 75 days from the date of NOA. II. Bidder should submit a copy of MOU / Agreement with the manufacturer/vendor or Its Page No.# 4/10 authorized agent to supply "New Vehicle" complete in all respects (as per technical specifications along-with all accessories) along-with techno-commercial bid and the unit will be available for deployment at ONGC work within 75 days from the date of NOA. III. The bidder has to give an undertaking as per Appendix-1 of Annexure-III.” 6. The learned Single Judge, while hearing WP(C) 6369/2025 for the first time on 12/11/2025, pertaining to the challenge made to the appellant’s contract on the new ground set out in the second writ petition, i.e. the 2 MoUs, had made an observation that the issuance of notice in WP(C) 6369/2025 would not affect the right of the appellant herein, to raise the question of maintainability of the second writ petition. 7. The respondent no. 5 thereafter, by way of abundant caution, filed Review Petition no. 82/2026, praying for setting aside the Judgment and Order dated 26/09/2025 passed in WP (C) No. 5768/2025, on the ground that the two new documents/MoUs, which came to the possession of the respondent no. 5, after disposal of WP(C) 5768/2025, showed that the appellant’s technical bid could not have been accepted by the State respondents and consequently, the appellant could not have been awarded the contract. 8. The learned Single Judge on hearing the Review Petition no. 82/2026 for the first time on 16/07/2026, held that the respondent no. 5 had been able to make out a case of discovery of new and important evidence touching upon the technical evaluation of the appellant, which was not available to the respondent no. 5, either at the time of filing of WP(C) no. 5768/2025 or when the judgment and order dated 26/09/2025 was passed. The learned Single Judge thus held that a case for review had been made out, due to the discovery of the 2 MoUs, which did not contain the signature of the appellant. Accordingly, the judgment and order dated 26/09/2025 passed in WP (C) no. 5768/2025 was recalled, but only to the extent of considering the 2 MoUs, pertaining to the agreements executed by the appellant with the Page No.# 5/10 manufacturer of the Scrapping Winch and the supplier of the vehicle. 9. The learned counsels for the appellant and the respondent nos. 1 to 4 submit that the review could not have been allowed by the learned Single Judge, inasmuch as, though there might have been a discovery of new and important matters or evidence, the respondent no. 5 had not been able to demonstrate that he was not in the knowledge and was unable to discover the new and important matter or evidence earlier, after exercise of due diligence. They submit that the respondent no. 5 has not stated as to what steps he had taken to discover the 2 documents and whether he had been prevented from filing any application under the RTI Act, 2005, prior to the discovery of the 2 documents. They also submit that the respondent no. 5 has failed to disclose the source and the date from where he got the two MoUs. 10. The learned counsels for the appellant and the respondent nos. 1 to 4 submit that in the absence of the respondent no. 5 showing that he was not in the knowledge and was unable to discover the 2 MoUs, after exercise of due diligence, the learned Single Judge could not have allowed the review, especially when the learned Single Judge has not considered the aspect of due diligence raised by the counsels for the appellant and the respondent nos. 1 to 4. 11. Mr. I. Choudhury, learned counsel for the respondent nos. 1 to 4 submits that as per sub-category (III) of 3.0-A Category-II of the “Special Terms and Conditions of the Contract”, the appellant has submitted an undertaking as per Appendix-I of Annexure-III. Thus, there was no infirmity with the appellant’s bid. 12. Mr. D. Das, the learned senior counsel for the respondent no. 5, submits that the tender documents submitted by other bidders could not be seen, as the website had been disabled with respect to seeing documents submitted by other bidders, to maintain confidentiality. The bidders could only see their own bid documents and not the bid documents of the other bidders. However, the respondent no. 5 could Page No.# 6/10 somehow, thereafter, obtain copies of the 2 MoUs pertaining to the petitioner’s bid in relation to the “Special Terms and Conditions of the Contract” no. 3.0-A-category II- (I), (II) & (III), which should have disqualified the appellant at the time of consideration of the technical bids. 13. Learned counsel for the respondent no. 5 also submits that there is no requirement for the respondent no. 5 to indicate as to what steps he had taken for procuring the 2 new documents/MoUs. He submits that even if a document is procured by improper or illegal means, there is no bar to its admissibility if it is relevant and the genuineness of the same is proved. In this regard, he has relied upon the judgment of the Supreme Court in the case of Umesh Kumar v. State of Andhra Pradesh and another reported in (2013) 10 SCC 591 and in the case of Magraj Patodia vs. R. K. Birla and others reported in (1970) 2 SCC 888. 14. The issue involved in the present case is (i) whether the two MoUs constitute new and important evidence within the meaning of Order 47 Rule 1 CPC that could not have been produced earlier despite exercise of due diligence, (ii) whether the respondent No. 5 had discharged its burden of proving due diligence. The further question to be decided is whether the non-disclosure of the source of the confidential documents was fatal to the case of the respondent No. 5. (iii) whether the MoUs have any nexus with the ratio of the judgment dated 26/09/2025 dismissing WP (C) 5768/2025, (iv) whether the review is barred in view of a parallel pending proceeding, i.e. WP(C) 6369/2025, due to the basis for challenging the allotment of the contract work to the appellant is different in the review petition and in the disposed of writ petition, (v) whether the learned Single Judge should have decided the contested issue of due diligence keeping in view the provisions of Order 47, Rule 1, CPC and the objection raised by the appellant to the subsequent production of the 2 MoUs. 15. On considering the fact that the only subject matter in issue in the first writ petition i.e. WP(C) 5768/2025, was with regard to whether the appellant was an MSE Page No.# 7/10 bidder and the said writ petition had been disposed of by the learned Single Judge with the finding that the appellant was an MSE bidder, the attempt by the respondent no. 5 to revive the disposed of writ petition, by bringing up an altogether new ground to cancel the contract awarded to the appellant, which was never an issue/ground, in our view, would depend on several considerations, depending upon the facts of each case. In any event, the said new ground of challenge to the allotment of the contract to the appellant, which the respondent no. 5 is now trying to bring up in the disposed of WP(C) 5768/2025, is already pending a decision in WP (C) 6369/2025, inasmuch as, there are 2 parallel proceedings on the same issue. 16. In the case of State of West Bengal and others Vs. Kamal Sengupta and others reported in (2008) 8 SCC 612, the Supreme Court has held that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character, that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge even after exercise of due diligence, the same could not be produced before the Court earlier. 17. In the present case, the stand taken by the respondent no. 5, with regard to two documents/MoUs in question, is reflected in paragraph 9 of the application for review, which is to the effect that after issuance of the contract to the appellant, the respondent no. 5 came into possession of 2 new documents, i.e. the MoU/purchase agreement dated 14/08/2025 and MoU/sale agreement dated 13/08/2025. There is no mention as to the date or manner in which the respondent no.5 came into possession of the 2 MoUs. 18. A reading of the review petition does not indicate as to what steps had been taken by the respondent no. 5 for coming into possession of the 2 MoUs. As such, it is Page No.# 8/10 not understood as to how the respondent no.2 came into possession of the 2 new documents and the date on which it came into possession of the 2 new documents. There is nothing shown that the respondent no. 5 had exercised due diligence in trying to have knowledge about the bidding documents of the appellant. 19. In the case of Umesh Kumar (Supra) and Magraj Patodia (Supra), the Supreme Court has held that even if a document is procured by improper or illegal means, there will not be a bar to its admissibility, if it is relevant and its genuineness proved. The decision in Magraj Patodia (Supra), was with regard to a corrupt practice in elections and the decision in Umesh Kumar (Supra), was in relation to a criminal case. 20. Without going further into the said issue, the next issue to be decided is whether respondent No.5 despite exercise of due diligence did not have knowledge of the existence of the two MoUs. This aspect has not been gone into by the learned Single Judge and neither had the respondent no. 5 made any attempt to explain whether he had discharged his burden of due diligence. 21. As stated earlier, the challenge to the award of the contract to the appellant by the respondent No. 5 in WP (C) 5768/2025 had been made only on the ground that the appellant was not a MSE bidder. However, the appellant being found to be a MSE bidder, the writ petition was dismissed. However, by the review petition, the respondent No. 5 is now expanding the scope of the subject matter of the disposed of writ petition. When the basis for the challenge to the allotment of the contract to the Appellant has been dismissed, any review would have to be on the basis of new and important evidence, which is analogous to the issue decided earlier, i.e. the question with regard to the appellant being a MSE bidder or not. Though the prayer of the respondent No. 5 in WP (C) 5768/2025 and the review petition is basically the same, the fact remains that a new ground for challenge is made out, which was never a part Page No.# 9/10 of the earlier writ petition. If the review petition is allowed, only on the ground that a new issue has arisen, which was never analogous to the earlier issue of whether the appellant was an MSE bidder, there would never be an end to a matter, inasmuch as, a completely new issue may again be brought out on a future date, which again has no nexus to whether the appellant is an MSE bidder or not. 22. In the present case, the respondent no. 5 has challenged the award of the contract to the appellant by way of the first writ petition, only on the ground that the appellant was not an MSE bidder without being aware of the 2 MoUs. The earlier writ petition was thereafter dismissed. The review petition has been filed on a totally different cause of action than that of the disposed of writ petition. Though the review filed by the respondent no. 5 would amount to expanding the scope of the earlier disposed of writ petition, we would have to see whether the conditions set forth for a review to be maintainable, in terms of Order 47 Rule 1 CPC have been satisfied. 23. As held by the Supreme Court in the case of Kamal Sengupta (Supra), the party seeking review has to show that the additional matter or evidence was not within his knowledge, even after exercise of due diligence. In the present case, there is nothing to show that the respondent no. 5 had discharged his burden of due diligence prior to filing the review petition. 24. In the case of Kamlesh Verma vs. Mayawati reported in (2013) 8 SCC 320, one of the grounds for a review to be maintainable, would be when the review petitioner was able to show that the discovery of the new and important matter or evidence, which after exercise of due diligence, was not within the knowledge of the review petitioner or could not be produced by him. It was also held that a review is not rehearing of an original matter and the power of review cannot be confused with the appellate power, which enables the superior Court to correct all errors committed by a subordinate Court. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases. Page No.# 10/10 25. Though the two MoUs constitute new and important evidence within the meaning of Order 47, Rule 1 CPC, the respondent no. 5 has not been able to discharge his burden of due diligence for having a review of the judgment dated 26/09/2025 passed in WP(C) 5768/2025. 26. In view of the above reasons, we find that the two MoUs have no nexus with the ratio of the judgment dated 26/09/2005 dismissing WP (C) 5768/2025. We are also of the view that there cannot be two parallel pending proceedings in this Court in respect of the same subject matter in issue. We also find that the learned Single Judge did not decide the contested issue of due diligence on the part of the respondent no. 5, keeping in view the provisions of Order 47 Rule 1 CPC, in relation to the production of the two MoUs, at the time of deciding the review petition. As the conditions for review on the ground of discovery of new evidence had not been satisfied by the respondent no. 5 for a review of the order passed in WP (C) 5768/2025, the review petition could not have been allowed. We also find that there has been an unexplained delay of nearly 8 months in filing the review petition, without any application for condonation of the delay being filed. 27. Accordingly, as the respondent no. 5 has not been able to show that he has discharged his burden of due diligence with respect to two new MoUs/evidence, required for a review, we hold that the impugned order dated 16/09/2026, passed in review petition no. 82/2026, is not sustainable. The same is accordingly dismissed. Consequently, the revived WP(C) No. 5768/2025 stands dismissed. JUDGE JUDGE Comparing Assistant