Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4270 OF 2008
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 17005 OF 2006
K.D. SHARMA … APPELLANT
VERSUS
STEEL AUTHORITY OF INDIA
LTD. & ORS. … RESPONDENT
J U D G M E N T
C.K. THAKKER, J.
1. Leave granted.
2. The present appeal arises out of the
judgment and order dated February 16, 2005 in
Miscellaneous Case Nos. 9 and 10 of 2005 and
Miscellaneous Case No. 57 of 2004 in Review
Petition No. 4 of 2002 passed by the High Court
of Orissa.
2
3. Shortly stated the facts of the case
are that respondent No. 1, Steel Authority of
India Ltd. (‘SAIL’ for short) issued tenders
for raising, transporting and loading of iron
ore lump and fines into railway wagons at Kalta
Iron Mine. The tender was required to be
submitted in two parts: (i) Techno-Commercial
Parameters (Part-I) and (ii) Price Bid (Part-
II). Price bid of the tender was to be opened
only after opening of the Techno-Commercial
Parameters and if the bidder was found
qualified. In response to the first notice
dated June 5, 2000, 19 tender papers were sold.
The authorities, however, received response
only from 10 persons. Techno-Commercial
Parameters (Part-I) was opened and it was found
that only one bidder, namely, M/s Ores India
Pvt. Ltd. (respondent NO. 2 herein) was
qualified. The process, therefore, had to be
cancelled because for opening of Price Bid
(Part-II), minimum three Techno-Commercially
qualified offers ought to have been there as
3
per Clause 7.7 of Purchase/Contract Procedure,
2000. Re-tender was, therefore, issued on
September 8, 2000, but it was also required to
be cancelled owing to ‘no perceptible
improvement’ in the situation. The tender was
floated for the third time, which was
unsuccessful. The fourth notice inviting
tenders was issued on January 22, 2001. It met
with the same fate. Then fifth time, tenders
were invited on May 7, 2001 wherein the
appellant was found eligible and qualified. His
bid was the lowest. The said bid was accepted
and the work was entrusted to him. The
decision taken by the first respondent (SAIL)
came to be challenged by respondent No. 2 in
the High Court of Orissa by filing a Writ
Petition being OJC No. 3508 of 2002. The main
allegation of the petitioner before the High
Court (respondent No. 2 herein) was that first
respondent (SAIL) cancelled previous four
notices inviting tenders only with a view to
oblige the appellant and to entrust work to him
4
who could not qualify himself earlier for want
of requisite eligible criteria in tender
process. Ultimately, the standard as prescribed
th
earlier was relaxed and lowered down in the 5
tender notice. When the present appellant
became eligible and qualified, the tenders were
opened and his bid was illegally accepted by
SAIL. The petition was heard on merits and the
High Court vide its judgment and order dated
May 30, 2002 dismissed the petition.
Respondent No. 2, however, came to know that he
was eligible and yet his case was not
considered. He, therefore, filed a review in
the High Court which was registered as Review
Petition No. 4 of 2002. By a judgment and
order dated February 3, 2003, the Division
Bench allowed the Review Petition and directed
the authorities (SAIL) to open fourth tender
and consider the case of the petitioner
(respondent No. 2) and respondent No. 3
(appellant) afresh in accordance with law
within a period of one month from the receipt
5
of the writ. The above order was challenged by
the appellant by filing Special Leave Petition
in this Court. Special Leave Petition was also
filed by SAIL. Both the Special Leave
Petitions, however, were dismissed by this
Court on November 28, 2003.
4. It is alleged by the appellant that
after dismissal of Special Leave Petitions by
this Court, SAIL opened tender in presence of
the second respondent only without intimating
the appellant and in his absence. SAIL also
negotiated the rates with the second respondent
and decided to entrust the work to him.
Meanwhile, several applications were filed
before the High Court for clarification and/or
modification/ alteration of the order passed in
Review Petition. Miscellaneous Case No. 46 of
2004 was filed by respondent No. 2 seeking
implementation of the order of the High Court
dated February 3, 2003. Miscellaneous Case No.
48 of 2004 was filed by SAIL for clarification
while Miscellaneous Case No. 57 of 2004 was
6
filed by the appellant to decide
disqualification of respondent No. 2.
Miscellaneous Cases 9 and 10 of 2005 were also
said to have been filed requesting the High
Court to dispose of matters in view of
compromise and settlement arrived at between
the parties.
5. The High Court by the impugned order
dated February 16, 2005, disposed of all the
applications on the basis of the settlement
said to have been arrived at between the
parties which was duly recorded in the order
wherein the present appellant was also a party-
respondent. The appellant came to know that
fraud had been committed by the respondents
upon him as well as upon the Court. He,
therefore, filed Miscellaneous Case No. 63 of
2005 on June 28, 2005 to recall the order dated
February 16, 2005 alleging inter alia that
fraud has been perpetrated by the opposite
party on him as well as on the Hon’ble Court.
A prayer was also made to investigate the
7
matter by Central Bureau of Investigation (CBI)
or Vigilance Authorities. Since nothing was
done by the High Court, he again approached
this Court by filing Special Leave Petition
which was registered as Special Leave Petition
(Civil) No. …… of 2006 (CC 2486 of 2006). The
said petition came up for hearing before this
Court and was dismissed on May 12, 2006 as “not
pressed at this stage”. It was observed that
if the petitioner would make a prayer before
the High Court for expeditious disposal of the
application to recall the order, the said
prayer would be considered appropriately and
application would be disposed of accordingly.
It is the case of the applicant that even
thereafter the recall application had not been
placed before the Court and was not decided as
directed by this Court. In the circumstances,
the appellant approached this Court by filing a
Special Leave Petition on September 6, 2006.
6. On October 9, 2006, the matter was
placed before this Court for admission hearing.
8
Notice was issued to the respondents. When the
matter was placed for further hearing on March
8, 2007, the following order was passed;
“Service is complete.
Though served, nobody appears on
behalf of respondent No. 2 (original
petitioner). With a view to give one
more opportunity, list the matter
after two weeks”.
7. According to the appellant, it is only
after the above order that the wheels moved
very fast. The respondents made all attempts
to get the matter on Board before the High
Court. The Court finally rejected the prayer of
the appellant for recalling of the order and
dismissed the application. According to the
appellant, all those actions were illegal,
contrary to law and deserve interference by
this Court.
8. We have heard the learned counsel for
the parties.
9. Learned counsel for the appellant
contended that fraud has been played upon the
9
Court as well as upon the appellant and all
orders passed by the High Court deserve to be
quashed and set aside only on that ground.
According to the appellant, when Miscellaneous
Petitions were placed before the High Court,
the Court was bound to decide them in
accordance with law after hearing the parties.
Instead, the High Court disposed of all the
petitions on the basis of `so-called’
settlement said to have been arrived at between
the parties. So far as appellant is concerned,
he had never entered into any settlement or
compromise. Mr. C.M. Ramesh, Chairman and
Managing Director of Rithwik Projects who was
earlier representative of the appellant and in
whose favour the appellant had issued Power of
Attorney had joined hands with respondent No. 2
and was virtually won over by him. The
appellant had also revoked and withdrawn Power
of Attorney issued in favour of Ramesh and,
obviously therefore, he had no authority to
represent the appellant and could not have
1
appeared either before SAIL for negotiations
for him or entered into any compromise or
settlement on behalf of the appellant. It was
also contended that though for a substantial
long period, application for recalling of order
instituted by the appellant had not come on
Board and he had to approach this Court making
grievance about non-hearing of the matter,
there was no progress whatsoever. It was only
after the order passed by this Court and
affording an opportunity to the respondent
stating that if he would not appear, an
appropriate order would be passed that
respondent No. 2 got the matter hurriedly
disposed of in the High Court. It was also the
allegation of the appellant that at the time of
hearing of Miscellaneous Cases, a new advocate
appeared on his behalf who was not engaged by
the appellant. Some blank papers on which the
appellant might have singed earlier came to be
utilized for the purpose of making applications
for settlement showing that the appellant was
1
agreeable to such settlement; the settlement
was produced before the Court and on that
basis, the matter were finally disposed of on
the assumption that all the parties had
compromised and amicably settled the matter and
nothing was required to be done. Accordingly
all the three Miscellaneous Petitions Nos. 46,
48 and 57 of 2004 were disposed of. It was
submitted that in these circumstances, the
order passed by the High Court deserves to be
quashed and set aside by remitting the matter
to the High Court so that the recall-
application filed by the appellant be decided
afresh after hearing the parties.
10. The learned counsel for Respondent No.
1-SAIL strongly refuted the allegations
levelled by the appellant. An affidavit-in-
reply is filed denying all the averments and
allegations against SAIL. It was stated that
the order passed by the High Court in Review
Petition was challenged by SAIL, but Special
Leave Petition was dismissed. Thereafter
1
obviously, SAIL was required to act in
accordance with the order passed by the High
Court in the Review Petition and confirmed by
this Court. It was also submitted by learned
counsel for SAIL that bald allegations have
been levelled against SAIL by the appellant
without there being any material whatsoever in
support of such allegations. On the contrary,
all throughout SAIL has acted strictly in
consonance with law. The Counsel stated that
in accordance with the order passed by the High
th
Court in Review Petition, 4 Tender was
considered, notices were issued to respondent
No. 2 as also to the appellant herein. The
appellant received the notice. He addressed a
letter to SAIL stating therein that he would
remain present in pursuance of the notice
issued by SAIL through his Power of Attorney
and representative Ramesh of Rithwik Projects.
Accordingly, Rithwik Projects through its
Chairman and Managing Director Ramesh appeared
and a decision was taken to entrust contract to
1
respondent No. 2. In the circumstances, it
cannot be said that any fraud has been
committed by SAIL either on the appellant or on
the Court. The counsel for SAIL further stated
that the appellant has not been affected at
all. It was stated that work entrusted to the
appellant was under tender notice 5 and not
under tender notice 4. Period of tender notice
5 was for three years. The said period of
three years was over and the appellant had
completed the said work. Thereafter there was
no right in favour of the appellant nor he
could insist continuance of the contract. The
counsel, therefore, submitted that the appeal
should be dismissed by this Court.
11. Even otherwise, according to the
counsel, no communication was sent at any point
of time by the appellant to SAIL that though
earlier he had issued Power of Attorney in
favour of Ramesh of Rithwik Projects, it was
subsequently withdrawn or revoked and that he
would not represent the appellant in future
1
before SAIL. On the contrary, though notice
was issued by SAIL and received by the
appellant, he did not remain present and sent a
communication to SAIL that Ramesh of Rithwik
Projects would represent him. It was,
therefore, not open to the appellant thereafter
to turn round and make wild allegations against
SAIL nor is he entitled to any relief.
12. On behalf of respondent No. 2 - M/s
Ores India Pvt. Ltd., the counsel contended
that no case whatsoever has been made out by
the appellant so as to interfere with the order
passed by the High Court. According to the
counsel, in fact SAIL had obliged appellant
which was clear from the facts and proved from
the decision in the Review Petition by the High
th
Court. When 4 tender notice was cancelled,
respondent No. 2 instituted a writ petition
challenging the said action of SAIL.
th
Meanwhile, 5 tender notice was issued and the
bid of the present appellant was accepted by
SAIL. The petition filed by respondent No. 2
1
th
in relation to 4 tender notice came to be
dismissed. Subsequently, however, respondent
No. 2 came to know that though respondent No. 2
was eligible and qualified, SAIL had obliged
the present appellant by canceling the process
th
of 4 tender notice considering other bidders
ineligible and unqualified. He, hence, filed
Review Petition. In Review Petition, the Court
was convinced that the grievance voiced by
respondent No. 2 was correct and the action of
SAIL was wholly illegal and improper. Review
Petition was, therefore, allowed and SAIL was
directed to reconsider the Tender Notice by
treating the respondent No. 2 as eligible and
qualified. Even observations were made by the
High Court against the conduct of officers of
SAIL. The said order was challenged by SAIL as
also by the appellant but this Court did not
th
interfere. 4 Tender was thereafter
considered. Notices were given to all bidders
including the appellant. The bid of respondent
No. 2 was accepted and the work was entrusted
1
to him. It is, therefore, submitted that the
appellant has no reason or ground to make
grievance against that action and the appeal
filed by him is liable to be dismissed.
13. We have considered rival contentions
of the parties.
14. The learned counsel for the appellant
alleged that fraud had been committed by the
respondents on the appellant as well as on the
Court. Only on that ground, the impugned action
of SAIL granting contract in favour of
respondent No.2 deserves to be set aside.
According to the counsel, Ramesh, Chairman and
Managing Director of Rithwik Projects, in whose
favour the appellant had issued Power of
Attorney, had taken side of respondent No.2.
The Power of Attorney was, therefore, later on
withdrawn by the appellant and yet he was
allowed to be represented for the appellant
before SAIL as also before the High Court and
‘so called’ compromise and settlement was
arrived at. He was not authorized to do so
1
against the interest of the appellant and on
his representation, the High Court could not
have disposed of Miscellaneous Cases.
15. It is well settled that “fraud avoids
all judicial acts, ecclesiastical or temporal”
proclaimed Chief Justice Edward Coke of England
before about three centuries. Reference was
made by the counsel to a leading decision of
this Court in S.P. Chengalvaraya Naidu (Dead)
by Lrs. V. Jagannath (Dead) by Lrs. & Ors.,
(1994) 1 SCC 1 wherein quoting the above
observations, this Court held that a
judgment/decree obtained by fraud has to be
treated as a nullity by every Court.
16. Reference was also made to a recent
decision of this Court in A.V. Papayya Sastry
& Ors. V. Govt. of A.P. & Ors., (2007) 4 SCC
221. Considering English and Indian cases, one
of us (C.K. Thakker, J.) stated:
“It is thus settled proposition of law
that a judgment, decree or order
obtained by playing fraud on the
Court, Tribunal or Authority is a
1
nullity and non est in the eye of law.
Such a judgment, decree or order —by
the first Court or by the final Court—
has to be treated as nullity by every
Court, superior or inferior. It can be
challenged in any Court, at any time,
in appeal, revision, writ or even in
collateral proceedings”.
17. The Court defined fraud as an act of
deliberate deception with the design of
securing something by taking unfair advantage
of another. In fraud one gains at the loss and
cost of another. Even the most solemn
proceedings stand vitiated if they are actuated
by fraud. Fraud is thus an extrinsic collateral
act which vitiates all judicial acts, whether
in rem or in personam .
18. So far as the proposition of law is
concerned, there can be no two opinions. The
learned counsel for the respondents also did
not dispute the principles laid down in the
above decisions as also in several other
judgments. They, however, stated that on the
facts and in the circumstances of the case, the
1
ratio laid down in the above cases has no
application.
19. As already adverted to earlier,
according to SAIL, pursuant to the order passed
by the High Court in Review and after dismissal
of Special Leave Petitions by this Court, it
issued notices to the parties including the
present appellant. Respondent No.2 remained
present for negotiation. The appellant received
the notice but intimated SAIL that Ramesh of
Rithwik Projects would remain present on his
behalf. At no point of time, the appellant had
made any grievance against Ramesh nor he had
informed SAIL that he had withdrawn Power of
Attorney issued earlier in favour of Ramesh.
It, therefore, cannot be said that the
appellant was deceived or cheated, either by
SAIL or by anyone else.
20. The argument of the learned counsel
for the appellant of violation of principles of
natural justice and fair play also has no
force. When notice was issued by SAIL to the
2
appellant and he had informed SAIL by a written
communication that Ramesh would remain present
as his representative, it does not lie in the
mouth of the appellant that SAIL had acted in
breach of natural justice.
21. SAIL in its written submissions
contended that the appeal filed by the
appellant is liable to be dismissed on account
of suppression of material facts and deliberate
misrepresentation by him. An impression was
sought to be created by the appellant,
submitted the counsel, that the appellant could
not complete the work given to him and was
assigned to respondent No.2. It is clear that
after tender notice No. 4 was cancelled,
albeit illegally as held by the High Court and
by this Court, tender notice No. 5 was issued.
The bid of the appellant was accepted and
contract was given to him. It was for 2002-05
i.e. for three years. The appellant was allowed
to complete the said period and the contract
had not been terminated or abruptly
2
discontinued during the said period. It was
over in 2005 by efflux of time. What was done
by SAIL was to implement the order of High
Court in connection with tender notice No. 4
which was not acted upon. In that process,
parties were called for negotiations, offer of
respondent No.2 was accepted and work was given
to him. It is, therefore, not correct to say
that the appellant had suffered. The appellant
wanted to continue the work even though the
period of tender notice No. 5 was over and he
had taken the benefit thereunder. The
appellant had no right or reason to make
grievance so far as tender notice No. 4 was
concerned. Hence, the appellant is not
entitled to any relief.
22. We find considerable force in the
argument of the learned counsel. From the
record, it is clear that tender notice No.4 was
wrongly ignored and no process thereunder was
undertaken by SAIL. What was granted to the
appellant was a contract under tender notice
2
No.5. The appellant was working under tender
notice No.5. Meanwhile, the review of
respondent No.2 against tender notice No.4 was
allowed and after the order passed by this
Court dismissing Special Leave Petitions, SAIL
implemented the said order, bid of respondent
No.2 was accepted and contract was given to
him. To us, SAIL is right in urging that the
appellant cannot insist that even under the
contract under tender notice No.5, he should be
allowed to continue the work. We, therefore,
see no substance in the argument of the learned
counsel for the appellant and the contention is
rejected.
23. The learned counsel for SAIL is also
right in urging that the appellant has not
approached the Court with clean hands by
disclosing all facts. An impression is sought
to be created as if no notice was ever given to
him nor he was informed about the consideration
of cases of eligible and qualified bidders in
pursuance of the order passed by the High Court
2
in Review and confirmed by this Court. The true
facts, however, were just contrary to what was
sought to be placed before the Court. A notice
was issued by SAIL to the appellant, he
received the notice, intimated in writing to
SAIL that he had authorized Ramesh of Rithwick
Projects to appear on his behalf. Ramesh duly
appeared at the time of consideration of bids,
bid of respondent No.2 was found to be lowest
and was accepted and contract was given to him
(under tender notice No.4). The said contract
had nothing to do with tender notice No.5 and
contract thereunder which had been given to the
appellant herein and he had completed the work.
Thus, it is clear that the appellant had not
placed all the facts before the Court clearly,
candidly and frankly.
24. The jurisdiction of the Supreme Court
under Article 32 and of the High Court under
Article 226 of the Constitution is
extraordinary, equitable and discretionary.
Prerogative writs mentioned therein are issued
2
for doing substantial justice. It is,
therefore, of utmost necessity that the
petitioner approaching the Writ Court must come
with clean hands, put forward all the facts
before the Court without concealing or
suppressing anything and seek an appropriate
relief. If there is no candid disclosure of
relevant and material facts or the petitioner
is guilty of misleading the Court, his petition
may be dismissed at the threshold without
considering the merits of the claim.
25. The underlying object has been
succinctly stated by Scrutton, L.J., in the
leading case of R. v. Kensington Income Tax
Commissioners, (1917) 1 KB 486 : 86 LJ KB 257 :
116 LT 136 in the following words:
“[I]t has been for many years the rule
of the Court, and one which it is of
the greatest importance to
maintain, that when an applicant comes
to the Court to obtain relief on an ex
parte statement he should make a full
and fair disclosure of all the
material facts- it says facts, not
law. He must not misstate the law if
he can help it; the Court is supposed
2
to know the law . But it knows nothing
about the facts , and the applicant
must state fully and fairly the facts;
and the penalty by which the Court
enforces that obligation is that if it
finds out that the facts have not been
fully and fairly stated to it the
Court will set aside any action which
it has taken on the faith of the
imperfect statement”.
(emphasis supplied)
26. A prerogative remedy is not a matter
of course. While exercising extraordinary power
a Writ Court would certainly bear in mind the
conduct of the party who invokes the
jurisdiction of the Court. If the applicant
makes a false statement or suppresses material
fact or attempts to mislead the Court, the
Court may dismiss the action on that ground
alone and may refuse to enter into the merits
of the case by stating “ We will not listen to
your application because of what you have
done”. The rule has been evolved in larger
public interest to deter unscrupulous litigants
from abusing the process of Court by deceiving
it.
2
27. In Kensington Income Tax Commissioner,
Viscount Reading, C.J. observed:
“Where an ex parte application has
been made to this Court for a rule
nisi or other process, if the Court
comes to the conclusion that the
affidavit in support of the applicant
was not candid and did not fairly
state the facts, the Court ought, for
its own protection and to prevent an
abuse of its process, to refuse to
proceed any further with the
examination of the merits. This is a
power inherent in the Court, but one
which should only be used in cases
which bring conviction to the mind of
the Court that it has been deceived.
Before coming to this conclusion a
careful examination will be made of
the facts as they are and as they have
been stated in the applicant’s
affidavit, and everything will be
heard that can be urged to influence
the view of the Court when it reads
the affidavit and knows the true
facts. But if the result of this
examination and hearing is to leave no
doubt that this Court has been
deceived, then it will refuse to hear
anything further from the applicant in
a proceeding which has only been set
in motion by means of a misleading
affidavit”.
(emphasis supplied)
28. The above principles have been
accepted in our legal system also. As per
2
settled law, the party who invokes the
extraordinary jurisdiction of this Court under
Article 32 or of a High Court under Article 226
of the Constitution is supposed to be truthful,
frank and open. He must disclose all material
facts without any reservation even if they are
against him. He cannot be allowed to play `hide
and seek’ or to `pick and choose’ the facts he
likes to disclose and to suppress (keep back)
or not to disclose (conceal) other facts. The
very basis of the writ jurisdiction rests in
disclosure of true and complete (correct)
facts. If material facts are suppressed or
distorted, the very functioning of Writ Courts
and exercise would become impossible. The
petitioner must disclose all the facts having a
bearing on the relief sought without any
qualification. This is because, “the Court
knows law but not facts”.
29. If the primary object as highlighted
in Kensington Income Tax Commissioners is kept
in mind, an applicant who does not come with
2
candid facts and ‘clean breast’ cannot hold a
writ of the Court with `soiled hands’.
Suppression or concealment of material facts is
not an advocacy. It is a jugglery,
manipulation, maneuvering or misrepresentation,
which has no place in equitable and prerogative
jurisdiction. If the applicant does not
disclose all the material facts fairly and
truly but states them in a distorted manner and
misleads the Court, the Court has inherent
power in order to protect itself and to prevent
an abuse of its process to discharge the rule
nisi and refuse to proceed further with the
examination of the case on merits. If the Court
does not reject the petition on that ground,
the Court would be failing in its duty. In
fact, such an applicant requires to be dealt
with for contempt of Court for abusing the
process of the Court.
30. Let us consider some important
decisions on the point:
2
31. In State of Haryana v. Karnal
Distillery, (1977) 2 SCC 431, almost an agreed
order was passed by the Court that on expiry of
the licence for manufacturing of liquor on
September 6, 1976, the distillery would cease
to manufacture liquor under the licence issued
in its favour. Then, the Company filed a
petition in the High Court for renewal of
licence for manufacture of liquor for 1976-77,
and the Court granted stay of dispossession. In
appeal, the Supreme Court set aside the order
granting stay of dispossession on the ground
that the petitioner-Company in filing the
petition in the High Court had misled it and
started the proceedings for oblique and
ulterior motive.
32. In Vijay Kumar v. State of Haryana,
(1983) 3 SCC 333, it was the case of the
petitioners that the provisional admissions
granted to them were not cancelled and they
were continuing their studies as post-graduate
students in Medical College on the relevant
3
date. On the basis of that statement, they
obtained an order of status quo. The Supreme
Court ordered inquiry and the District Judge
was asked to submit his report whether the
provisional admissions granted to the
petitioners were continued till October 1, 1982
or were cancelled. The report revealed that to
the knowledge of the petitioners their
provisional admissions were cancelled long
before October 1, 1982 and thus, the
petitioners had made false representation to
the Court and obtained a favourable order.
33. Dismissing the petition, this Court
observed:
“But for the misrepresentation this
Court would never have passed the said
order. By reason of such conduct they
have disentitled themselves from
getting any relief or assistance from
this Court and the Special Leave
Petitions are liable to be dismissed”.
34. Deprecating the reprehensible conduct
of the petitioners as well as of their counsel,
the Court stated;
3
“Before parting with the case,
however, we cannot help observing that
the conduct or behaviour of the two
petitioners as well as their counsel
(Dr. A.K. Kapoor who happens to be a
medico-legal consultant practising in
Courts) is most reprehensible and
deserves to be deprecated. The
District Judge's report in that behalf
is eloquent and most revealing as it
points out how the two petitioners and
their counsel, (who also gave evidence
in support of the petitioner's case
before the District Judge) have
indulged in telling lies and making
reckless allegation of fabrication and
manipulation of records against the
College Authorities and how in fact
the boot is on their leg. It is a sad
commentary on the scruples of these
three young gentlemen who are on the
threshold of their carriers. In fact,
at one stage we were inclined to refer
the District Judge's report both to
the Medical Council as well as the Bar
Council for appropriate action but we
refrained from doing so as the
petitioners' counsel both on behalf of
his clients as well as on his own
behalf tendered unqualified apology
and sought mercy from the Court. We,
however, part with the case with a
heavy heart expressing our strong
disapproval of their conduct and
behaviour… ”
(emphasis supplied)
35. In Welcom Hotel v. State of A.P.,
(1983) 4 SCC 575, certain hoteliers filed a
3
petition in this Court under Article 32 of the
Constitution challenging the maximum price of
foodstuffs fixed by the Government contending
that it was uneconomical and obtained ex parte
stay order. The price, however, was fixed as
per the agreement between the petitioners and
the Government but the said fact was
suppressed.
36. Describing the fact as material, the
Court said:
“Petitioners who have behaved in this
manner are not entitled to any
consideration at the hands of the
Court”.
37. In Agricultural & Process Food
Products v. Oswal Agro Furnae, (1996) 4 SCC
297, the petitioner filed a petition in the
High Court of Punjab and Haryana which was
pending. Suppressing that fact, it filed
another petition in the High Court of Delhi and
obtained an order in its favour. Observing that
the petitioner was guilty of suppression of
3
‘very important fact’, this Court set aside the
order of the High Court.
38. In State of Punjab v. Sarav Preet,
(2002) 9 SCC 601, A obtained relief from the
High Court on her assertion that a test in a
particular subject was not conducted by the
State. In an appeal by the State, it was stated
that not only the requisite test was conducted
but the petitioner appeared in the said test
and failed. Observing that the petitioner was
under an obligation to disclose the said fact
before the High Court, this Court dismissed the
petition.
39. In Union of India v. Muneesh Suneja,
(2001) 3 SCC 92, the detenu challenged an order
of detention under the Conservation of Foreign
Exchange and Prevention of Smuggling Activities
Act, 1973 (COFEPOSA) by filing a petition in
the High Court of Delhi which was withdrawn.
Then he filed a similar petition in the High
Court of Punjab & Haryana wherein he did not
disclose the fact as to filing of the earlier
3
petition and withdrawal thereof and obtained
relief. In an appeal by the Union of India
against the order of the High Court, this Court
observed that non-disclosure of the fact of
filing a similar petition and withdrawal
thereof was indeed fatal to the subsequent
petition.
40. A special reference may be made to a
decision of this Court in All India Sate Bank
Officers Federation v. Union of India, 1990
Supp SCC 336. In that case, promotion policy of
the Bank was challenged by the Federation by
filing a petition in this Court under Article
32 of the Constitution. It was supported by an
affidavit and the contents were affirmed by the
President of the Federation to be true to his
‘personal knowledge’. It was stated: “The
petitioners have not filed any other similar
writ petition in this Honourable Court or any
other High Court”.
41. In the counter-affidavit filed on
behalf of the Bank, however, it was asserted
3
that the statement was `false’. The Federation
had filed a writ petition in the High Court of
Andhra Pradesh which was admitted but interim
stay was refused. Another petition was also
filed in the High Court of Karnataka. It was
further pointed out that Promotion Policy was
implemented and 58 officers were promoted who
were not made parties to the petition.
42. In affidavit-in-rejoinder, once again,
the stand taken by the petitioner was sought to
be justified. It was stated: “The deponent had
no knowledge of the writ petition filed before
the High Court of Andhra Pradesh, hence as soon
as it came to his knowledge the same has been
withdrawn. Secondly, the petitioners even today
do not know the names of all such 58 candidates
who have been promoted/favoured”. It was
contended on behalf of the Bank that even that
statement was false. Not only the petitioner-
Federation was aware of the names of all the 58
officers who had been promoted to the higher
post, but they had been joined as party-
3
respondents in the writ petition filed in the
Karnataka High Court, seeking stay of promotion
of those respondents. It was, therefore,
submitted that the petitioner had not come with
clean hands and the petition should be
dismissed on that ground alone.
43. ‘Strongly disapproving’ the
explanation put forth by the petitioner and
describing the tactics adopted by the
Federation as ‘abuse of process of court’, this
Court observed:
“There is no doubt left in our minds
that the petitioner has not only
suppressed material facts in the
petition but has also tried to abuse
judicial process.
. . .
Apart from misstatements in the
affidavits filed before this Court,
the petitioner Federation has clearly
resorted to tactics which can only be
described as abuse of the process of
court. The simultaneous filing of writ
petitions in various High Courts on
the same issue though purportedly on
behalf of different associations of
the Officers of the Bank, is a
practice which has to be discouraged.
Sri Sachhar and Sri Ramamurthy wished
to pinpoint the necessity and
importance of petitions being filed by
3
different associations in order to
discharge satisfactorily their
responsibilities towards their
respective members. We are not quite
able to appreciate such necessity
where there is no diversity but only a
commonness of interest. All that they
had to do was to join forces and
demonstrate their unity by filing a
petition in a Single Court. It seems
the object here in filing different
petitions in different Courts was a
totally different and not very
laudable one ”. (emphasis supplied)
44. ‘Deeply grieved’ by the situation and
adversely commenting on the conduct and
behaviour of the responsible officers of a
Premier Bank of the country, the Court
observed;
“We have set out the facts in this
case at some length and passed a
detailed order because we are deeply
grieved to come across such conduct
on the part of an association, which
claims to represent high placed
officers of a premier bank of this
country. One expects such officers
to fight their battles fairly and
squarely and not to stoop low to
gain, what can only be, temporary
victories by keeping away material
facts from the court. It is common
knowledge that, of late, statements
are being made in petitions and
affidavits recklessly and without
3
proper verification not to speak of
dishonest and deliberate
misstatements. We, therefore, take
this opportunity to record our
strong and emphatic disapproval of
the conduct of the petitioners in
this ease and hope that this will be
a lesson to the present petitioner
as well as to other litigants and
that at least in future people will
act more truthfully and with a
greater sense of responsibility .
(emphasis supplied)
45. Yet in another case in Vijay Syal &
Anr. v. State of Punjab & Ors., (2003) 9 SCC
401; this Court stated;
“In order to sustain and maintain
sanctity and solemnity of the
proceedings in law courts it is
necessary that parties should not
make false or knowingly, inaccurate
statements or misrepresentation
and/or should not conceal material
facts with a design to gain some
advantage or benefit at the hands of
the court, when a court is
considered as a place where truth
and justice are the solemn pursuits.
If any party attempts to pollute
such a place by adopting recourse to
make misrepresentation and is
concealing material facts it does so
at its risk and cost. Such party
must be ready to take consequences
that follow on account of its own
making. At times lenient or liberal
3
or generous treatment by courts in
dealing with such matters are either
mistaken or lightly taken instead of
learning proper lesson. Hence there
is a compelling need to take serious
view in such matters to ensure
expected purity and grace in the
administration of justice”.
46. In the case on hand, the appellant has
not come forward with all the facts. He has
chosen to state facts in the manner suited to
him by giving an impression to the Writ Court
that an instrumentality of State (SAIL) has not
followed doctrine of natural justice and
fundamental principles of fair procedure. This
is not proper. Hence, on that ground alone, the
appellant cannot claim equitable relief. But we
have also considered the merits of the case and
even on merits, we are convinced that no case
has been made out by him to interfere with the
action of SAIL, or the order passed by the High
Court.
47. For the foregoing reasons, the appeal
deserves to be dismissed and is accordingly
dismissed with costs.
4
………………………………………………J.
(C.K. THAKKER)
NEW DELHI, ………………………………………………… J.
JULY 09, 2008. (D.K. JAIN)