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2008(5) Supreme 287
Supreme Court of india
(From Orissa High Court)
C.K. Thakker and D.K. Jain, JJ.
K.D. Sharma — Appellant
versus
Steel Authority of India Ltd. & Ors. — Respondent
Civil Appeal No. 4270 of 2008
Arising Out of Special Leave Petition (Civil) No. 17005 of 2006
Decided on : 09-07-2008
(1994)1 SCC 1; (2007)4 SCC 221 – Relied upon.
(b)Words and Phrases – Fraud – Fraud is 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 an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. (Para 17)
(c)Constitution of India,1950 – Articles 32 and 226 – The jurisdiction under Article 32 and Article 226 is extraordinary, equitable and discretionary – Prerogative writs mentioned therein are issued 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. (Para 24)
(1917) 1 KB 486 : 86 LJ KB 257 : 116 LT 136; (1977)2 SCC 431; (1983)3 SCC 333; (1983)4 SCC 575; (1996)4 SCC 297; (2002)9 SCC 601;(2001)3 SCC 92; 1990 Supp SCC 336; (2003)9 SCC 401 – Relied upon.
Facts of the case :
1.Steel Authority of India Ltd. issued tenders for raising, transporting and loading of iron ore lump and fines into railway wagons at Kalta Iron Mine.
2.Even after floating the tender for three times there was no competitive response. Fourth time there was some response. Ultimatelydecision could be taken after fifth round wherein the appellant was found eligible and qualified. His bid being the lowest was accepted and the work was entrusted to him.
3.The decision taken by the first respondent (SAIL) came to be challenged by respondent No. 2 in the High Court alleging mala fide.
4.The petition was heard on merits and the High Court vide its judgment and order dated May 30, 2002 dismissed the petition.
5.Respondent No. 2 filed a review in the High Court which was allowed and the Court directed the authorities (SAIL) to open fourth tender and consider the case of the petitioner (respondent No. 2) and respondent No. 3 (appellant) afresh.
6.The above order was challenged by the appellant as well as SAIL by filing Special Leave Petition. Both the Special Leave Petitions, however, were dismissed.
7.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.
8.The appellant filed Miscellaneous Case to recall the order dated February 16,2005 alleging fraud has been perpetrated by the opposite party on him as well as on the Hon’ble Court.
9.Since nothing was done by the High Court, he again approached Supreme Court.
Findings of the Court :
The appellant having not come with clean hands and supressing material facts, as also on merits is not entitled to any relief.
Result : Appeal dismissed.
Key Points: - The petitioner must come with clean hands and disclose all material facts without concealment or suppression (!) (!) . - Fraud vitiates all judicial acts, and a judgment obtained by fraud is a nullity (!) (!) . - If the petitioner misleads the Court or fails to disclose relevant facts, the petition may be dismissed at the threshold (!) (!) .
Judgment
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.
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, 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 who could not qualify himself earlier for want of requisite eligible criteria in tender process. Ultimately, the standard as prescribed earlier was relaxed and lowered down in the 5th 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 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
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