TMI Blog2008 (7) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 10 of 2005 and Miscellaneous Case No. 57 of 2004 in Review Petition No. 4 of 2002 passed by the High Court of Orissa. 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 per Clause 7.7 of Purchase/Contract Procedure, 2000. Re-tender was, therefore, issued on September 8, 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anwhile, 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 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 partyrespondent. 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 frau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 nullity and non est in the eye of law. Such a judgment, decree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 tende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 Wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 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 suppre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 administratio ..... 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