The petitioner, a `AA’ class contractor, has filed this writ petition assailing the validity and legality of the order dated 1.11.2021 passed by the second appellate authority as well as the order dated 23.9.2021 passed by the first appellate authority under Rajasthan Transparency in Public Procurement Act, 2012 (for brevity-`the RTPP Act’), for quashing and setting aside the order dated 7.12.2021 passed by the respondent no.2 as also the demand of additional performance security.
The facts in brief are that the petitioner submitted its bid in pursuance of the NIT no.1/2020-21 issued by the respondent no.2 for the work of “Retrofitting Works including Construction of Local Sources for conjunctive use, new CWR & OHSRs, connecting these OHSRs with existing Rising Mains, Pipeline from OHSRs to VTCs, Pipeline network inside the village, providing Functional Household Tap Connections (FHTC) including Geo tagging and O&M work (upto VTC) to be carried out under Jal Jeevan Mission (JJM) for Bisalpur-Tonk-Niwai Water Supply Project (Package-I)”. On standing lowest bidder, work order dated 4.8.2021 was issued in its favour wherein, a demand of additional performance security to the tune of Rs.6,27,08,766 was raised. Allegation that demand so raised was without any basis and was in violation of principles of natural justice, the petitioner preferred a first appeal under Section 38(1) of the Act of 2012 which came to be dismissed vide order dated 23.9.2021. This order was unsuccessfully challenged by the petitioner by way of a second appeal under Section 38(4) which came to be dismissed by the second appellate authority vide order dated 1.11.2021. Thereafter, the respondent no.2 issued a notice dated 10.11.2021 calling upon the petitioner to execute and sign the contract agreement in pursuance of work order dated 4.8.2021. Initially, the petitioner has assailed both these orders passed in appeals along-with demand of additional performance security; but, during pendency of the writ petition, the respondent no.2 passed an order dated 7.12.2021 whereby, the tender process of abovestated NIT was cancelled, the petitioner was required to deposit a sum of Rs.2.302 crores being 2% of the estimated cost of the work with debarment from participation in the re-invitation of the bids for the subject tender. By way of an amendment in the writ petition, the validity of this order has also been assailed.
The respondents in their reply have raised preliminary objection as to maintainability of the writ petition alleging that it suffers from the vice of concealment of material facts. It is averred that while submitting the bid, the petitioner has furnished an undertaking as also a declaration that it has read, understood all the terms and conditions of the bid documents including those in addenda issued by the department and the same were accepted by it without any deviation. It is averred that demand of additional performance security is pursuant to Circular dated 27.2.2019 incorporated in the terms and conditions of the bid documents which was accepted by the petitioner with open eyes without any demur against such condition. It is stated that in pursuance of the NIT, a pre-bid meeting was held on 18.3.2021, which was neither attended by the petitioner nor, he raised any objection to the aforesaid condition. It is pleaded that once the petitioner has participated in the NIT having accepted and resorted to its terms including the applicability of the Circular dated 27.2.2019, it is estopped from assailing the same.
On merits of the case, it was submitted that the respondents were well within their competence to provide for additional performance security in case of abnormally low bid. It was stated that similar conditions providing for the additional performance security were also incorporated in the various NITs issued by the answering respondent such as work of augmentation-cum- reorganisation of Sonwa Water Supply Project, District Baran as per Jal Jeevan Mission. It is pleaded that successful Bidders M/s. GCKC Jaipur in Sonwa Water Supply Project and M/s. VPRP, Jodhpur in Shyagarh Water Supply Project have deposited the additional performance security on the basis of such condition. It is also stated that prior to insertion of Rule 75A under the Rules of 2012 vide notification dated 18.12.2020, it was discretionary on the part of the procuring entity to put a condition for additional performance security which, now is made mandatory. With regard to issuance of fresh NIT and debarring the petitioner from participating in it, reference to Clause 27.6 of the bid document is made.
The petitioner in its rejoinder submitted that prior to insertion of Rule 75A, there was no provision for levy of additional performance security by any procuring entity and therefore, not raising any objection to it in the pre-bid meeting, does not operate as an estoppel on filing of the writ petition. It is averred that submission of declaration and undertaking by the petitioner to abide by the terms of the NIT is a standard practice and a mere formality before participation in every tender. It is submitted that any tender condition which is beyond the authority and jurisdiction of the procuring entity, can always be assailed by way of a writ petition.
Mr. K.K. Sharma, learned senior counsel for the petitioner, with regard to allegation of concealment of material facts, contended that submission of a declaration as also an undertaking that the bidder has gone through the terms and conditions of the tender documents and shall abide by the same, is a formality which is a standard practice in each and every bidding process with nothing peculiar in the instant tender. He submitted that relevant part of the bid document has already been annexed with the writ petition and hence, there is no concealment.
With regard to preliminary objection as to the writ petition being barred by the principle of estoppel, the learned senior counsel submitted that since the condition of imposing additional performance security is illegal and void ab initio, it could always be challenged even afterwards. He submitted that applicability of the additional performance security comes into force only once a bid is accepted and hence, there was no occasion for the petitioner to have assailed the same before acceptance of its bid lest the writ petition would have been premature. He submitted that even otherwise also, challenge to this condition would have prejudiced his financial bid as other bidders would have come to know that it was going to be abnormally low. Shri Sharma submitted that in the writ petition no.9620/2021; M/s. Shera Ram Choudhary vs. State of Rajasthan & Ors. and other connected matters involving identical controversy, a coordinate bench of this Court has, vide its order dated 21.1.2022, rejected plea of the respondents that the writ petition was not maintainable assailing the same condition of furnishing additional performance security even after participation in the bid process.
Drawing attention of this Court towards Section 16 of the Act of 2012, he submitted that it provides that the terms and conditions of the procurement contract entered into shall be in accordance with provisions of the Act and the applicable Rules and the same cannot travel beyond the scope thereof. He submitted that levy of additional performance security is not a part of the contents of bidding documents as envisaged under Section 20 of the Act. Shri Sharma submitted that Section 55 empowers the State Government to make Rules for carrying out the provisions of the Act and its clause (xxviii) provides for provisions relating to content of bidding document under Section 20. He submitted that Rule 75 of the Rules of 2013 provides for levy of performance security only as part of the contents of the bidding documents and Rule 75A which provides for levy of additional performance security, was inserted in the Rules of 2013 by way of the notification dated 22.10.2021, i.e., post NIT in question. Learned senior counsel contended that the demand of additional performance security is beyond the scope of the Act of 2012 and the Rules of 2013 made thereunder. Learned senior counsel submitted that in any case, levy of additional performance security in terms of Circular dated 27.2.2019 was not permissible as the same has been held to be illegal by the Finance Department, Government of Rajasthan vide its order dated 22.11.2019. Advancing his arguments further, Mr. Sharma canvassed that the demand of additional performance security is illegal and arbitrary on its face inasmuch as the performance security demanded under the NIT comes to about Rs.3 crores which too is staggered in the running bills whereas, a sum of more than Rs.6 crores is being demanded towards additional performance security that too in one go even before a contract is executed between the parties.
Learned senior counsel submitted that in case of M/s. Shera Ram Choudhary and other connected matters (supra), a coordinate bench of this Court has quashed and set aside the condition of additional performance security in the NIT issued prior to notification dated 18.12.2020 introducing Rule 75A. He submitted that therein this Court has also held that in view of the order dated 22.11.2019 issued by the Finance Department, the Circular dated 27.2.2019 issued by the PHED was of no avail. Learned senior counsel submitted that the respondents have not only not challenged the aforesaid judgement; rather, have implemented the same. Drawing attention of this Court towards the order of the coordinate bench of this Court dated 1.2.2022 in Civil Writ Petition No.16362/2021, M/s. Vishnu Prakash Punglia vs. State of Rajasthan & Anr. and the order dated 28.2.2020 passed by this Court in S.B. Civil Writ Petition No.409/2022, M/s. Mahadev Construction Co. vs. State of Rajasthan & other connected matters, the learned senior counsel contended that therein, the respondent-State had admitted that the issue of additional performance security prior to introduction of Rule 75A, was no more res integra as it already stood decided by this Court in the case of M/s. Shera Ram Choudhary and other connected matters (supra). He submitted that in the aforesaid circumstances, the respondents cannot be permitted to put the petitioner to hostile discrimination by pick and choose. Elaborating his submissions, learned senior counsel submitted that although, it is open for the State Government to defend its position to levy additional performance security even after taking a decision not to challenge the order in the case of M/s. Shera Ram Choudhary and other connected matters (supra); but, having implemented the same in respect of other similarly situated bidders also, it would be subversive to judicial propriety to permit the respondents to oppose similar prayer in the instant writ petition. He, in this regard, relied upon following judgements of the Hon’ble Apex Court of India:
1) Shobha Sinha vs. State of Bihar & Ors.-(2013) 16 SCC 456;
2) Union of India & Ors. vs. Carpenter Workers Union & Ors.-(2006) 12 SCC 435;
3) Supreme Court Advocate on Records Association & Anr. Vs. Union of India-(2016) 5 SCC 1;
4) Union of India & Ors. vs. Dr. O.P. Nijhawan & Ors.- (2020) 14 SCC 420.
Learned senior counsel submitted that the principle of stare decisis requires that there has to be finality of a judgement and it is not permissible for the parties to reopen the concluded judgements as it would not only tantamount to an abuse of the process of law but would have far reaching adverse effects on the administration of justice as it would also nullify the rule of estoppel as the stare decisis a well established principle of precedents. He, in this regard, relied upon following judgements of the Hon’ble Apex Court of India:
1) Union of India & Ors. vs. Major S.P. Sharma & Ors.- (2014) 6 SCC 351;
2) Narinder Singh vs. State of Punjab & Anr.-(2014) 6 SCC 466;
3) Kavi Raj & Ors. vs. State of Jammu & Kashmir & Ors.- (2013) 3 SCC 526;
4) G.C. Gupta & Ors. vs. N.K. Pandey & Ors.-(1988) 1 SCC 316.
Mr. Sharma submitted that respondents cannot be permitted to approbate and reprobate. He submitted that the judgement of this Court in the case of M/s. Shera Ram Choudhary and other connected matters (supra) having been accepted and implemented by the respondents not only qua those cases; but, qua other similar situated cases also, it is not permissible for the respondents to insist upon levy of additional performance security against the petitioner in the instant case. He, in this regard, relied upon following judgements of the Hon’ble Calcutta High Court:
1) Indu Bhushan Jana vs. Union of India & Ors.-AIR 2009 Cal 24;
2) Chanchal Kumar Chatterjee vs. State of West Bengal & Ors.-(2018) SCC Online Cal. 12970.
Assailing the validity of the order dated 7.12.2021 to the extent it blacklists the petitioner, the learned senior counsel submitted that it is passed under the misconception as if the petitioner was served upon with a notice before blacklisting. Drawing attention of this Court towards the order impugned dated 7.12.2021, he submitted that it refers to a notice dated 10.11.2021 to demonstrate that the petitioner was served upon with the notice pointing out very clearly the consequences of non- compliance, which is factually incorrect. He submitted that notice dated 10.11.2021 simply required the petitioner to execute the contract agreement failure thereof was to be treated as violation of tender document conditions entailing suitable action under Clause 27 of the ITT in Volume-1 of the tender documents. He submitted that it was duly responded by the petitioner but, was not taken into consideration before passing the order impugned dated 7.12.2021. He submitted that Section 46 of the Act of 2012 and the precedential law required a specific show cause notice proposing the penalty of blacklisting before one could be blacklisted. He in this regard relied upon a judgement of the Apex Court of India in case of Gorkha Security Services vs. Government (NCT of Delhi) & Ors.-(2014) 9 SCC 105. He, therefore prayed that the writ petition be allowed.
Per contra, Shri M.S. Singhvi, learned Advocate General submitted that the writ petition itself is not maintainable for the reasons of concealment of material facts, the principle of estoppel and failure on the part of the petitioner to challenge the NIT condition requiring additional performance security. Elaborating his arguments, Shri Singhvi asserted that the petitioner has nowhere disclosed in the entire memo of writ petition that clause no.30 of the NIT provided for additional performance security on abnormally low bids which was in consonance with the Circular dated 27.2.2019 issued by the PHED. He submitted that petitioner neither participated in the pre-bid meeting convened on 18.3.2021 nor, he submitted any objection to this condition; rather, submitted a declaration as also an undertaking that it has read, understood all the terms and conditions of the bid documents including those in the addenda which was acceptable to it without any deviation. Learned Advocate General submitted that the writ petition is silent about the aforesaid material facts.
Relying on the following judgements of the Hon’ble Apex Court, learned AG submitted that the writ petition deserves to be dismissed on this count alone.
1) Ramjas Foundation & Anr. vs. Union of India & Ors.- (2010) 14 SCC 38;
2) Bhaskar Laxman Jadhav & Ors. vs. Karamveer Kakasaheb Wagh Education Society & Ors.-(2013) 11 SCC 531;
3) Sciemed Overseas Inc. vs. BOC India Ltd. & Ors.- (2016) 3 SCC 70.
With regard to estoppel, Shri Singhvi submitted that it was not open for the petitioner to have assailed the NIT conditions having participated in the tender process without any demur on any count including the ground that the respondent had no authority to impose such conditions being violative of the provisions of the Act of 2012 and the Rules made thereunder. He, in this regard, relied upon a coordinate bench order of this Court dated 30.3.2022 in case of S.B. Civil Writ Petition No.3681/2022; M/s. Ramnarayan Contractor vs. State of Rajasthan & other connected matters.
Learned Advocate General submitted that a perusal of the prayer clause of the writ petition reveals that the petitioner has neither challenged clause 30 of the NIT nor, the circular dated 27.2.2019 issued by the Chief Engineer, PHED Department which provide for additional performance security and hence, the writ petition is not maintainable in absence of a challenge to these. He, in this regard, relied upon a judegment of Hon’ble Supreme Court of India in case of Government of Maharashtra vs. Deokar Distillery-(2003) 5 SCC 669.
Shri Singhvi, while admitting that the respondents have implemented the judgement of this Court in the case of M/s. Shera Ram Choudhary and other connected matters (supra), submitted that in view of the fact that the judgement impinges upon right of the procuring entity to lay down conditions in the NIT in its discretion which suit its best interest as also for the public cause, decided to contest the present writ petition. He submitted that the judgement in the case of M/s. Shera Ram Choudhary is per incuriam inasmuch as it does not take into consideration the statutory provisions contained in the Act of 2012 read with Rules of 2013 and the relevant precedential law of the Hon’ble Apex Court of India. Drawing attention of this Court towards Section 16 of the Act of 2012, learned Advocate General submitted that it does not speak of the terms and conditions of the NIT; but, of the terms and conditions of the contract between the parties which have to be in accordance with provisions of the Act, the applicable Rules as also the conditions indicated in the bidding documents. He submitted that rather this Section provides that in addition to provisions of the Act and the Rules, a contract has to be in accordance with the conditions indicated in the bidding documents which can always be supplemental to the provisions of the Act and the applicable Rules. He submits that Section 20 does not contain the exhaustive list of the contents of the bidding documents and its clause (e) provides that it may contain any other information which is considered by the procuring entity relevant for the purpose.
Drawing attention of this Court towards Rule 75 (2) of the Rules of 2013, learned Advocate General submitted that it provides that the amount of performance security shall be 5% or as may be specified in the bidding documents, of the amount of supply order in the case of procurement of goods and services and 10% of the amount of the work order in case of procurement of work. He, therefore, submitted that Rule 75 confers a discretion upon the procuring entity to levy performance security in excess of 5% or 10%, as the case may be and if the amount in the bidding document exceeds than the amount stipulated under Rule 75, it may be reckoned as additional performance security as the two expressions are identical. He, in this regard, relied upon an Apex Court judgement in the case of Kanhaiyalal Vishindas Gidwani vs. Arun Dattatray Mehta & Ors.-(2001) 1 SCC 78.
He submitted that in any case, the additional performance security is refundable on satisfactory completion of the work under the contract.
Learned AG submitted that prior to introduction of Rule 75A, levy of additional performance security was in the discretion of a procuring entity which, now, after notification dated 20th October, 2020, is no more discretionary; but, mandatory.
With regard to office order dated 22.11.2019 issued by the Finance Department requiring all the departments to withdraw the Circular providing for additional performance security, Shri Singhvi, drawing attention of this Court towards the letter of the procuring entity dated 21.1.2020, submitted that it was not an office order of the Finance Department; but, only an unofficial note issued by an officer in the Finance Department, which was not accepted by the procuring entity for the valid reasons.
Learned AG submitted that the Rules of 2013 provide for minimum standards which can always suitably be supplemented/optimised by the procuring entity as per its requirements provided the same are not violated. He submitted that a procuring entity has full discretion to provide for tender conditions in which the writ court could not interfere lightly. He in this regard relied upon the following judgements:
1) Master Marine Services (P) Ltd. vs. Metcalfe & Hodgkinson (P) Ltd. & Anr.-(2005) 6 SCC 138;
2) Michigan Rubber (India) Ltd. vs. State of Karnataka & Ors.-(2012) 8 SCC 216.
Shri Singhvi submitted that the scope of interference/judicial review by a writ court in NIT conditions is extremely limited. He in this regard relied on following judgements:
1) Ramana Dayaram Shetty vs. International Airport Authority of India & Ors.-(1979) 3 SCC 489;
2) Raunaq International Ltd. vs. I.V.R. Construction Ltd. & Ors.-(1999) 1 SCC 492;
3) Municipal Corporation, Ujjain & Anr. vs. BVG India Ltd. & Ors.-(2018) 5 SCC 462.
Learned Advocate General submitted that since, the judgement of this Court in the case of M/s. Shera Ram Choudhary and other connected matters (supra) has been passed without taking into consideration the aforesaid statutory provisions contained in the Act of 2012 and the Rules of 2013 as also the precedential law of the Hon’ble Apex court of India in such matters, it is per incuriam having no binding effect. He, in support of his submissions, relies upon following judgements:
1) A.R. Antulay vs. R.S. Nayak & Anr.-(1988) 2 SCC 602;
2) Nirmal Jeet Kaur vs. State of M.P. & Anr.-(2004) 7 SCC 558;
3) Jagannath Temple Managing Committee vs. Siddha Math & Ors.-(2015) 16 SCC 542.
Shri Singhvi asserted that even otherwise also, the contract in question being for water supply, in view of public interest involved, this Court cannot and should not permit commercial interest of the petitioner to override the larger public interest even if it is found that there was some violation of the NIT conditions/statutory provisions and the petitioner should be relegated to the relief of damages instead of interfering with the tender process. He, in this regard, relied upon an order of the Hon’ble Apex Court dated 21.3.2022 in Civil Special Appeal No.1846/2022; M/s. N.G. Products vs. M/s. Vinod Kumar Jain.
Lastly, learned AG submitted that the petitioner has not been blacklisted; but, has only been restrained from participating in the re-tender for the same work in view of clause 27.6 of the bid documents which, in no uncertain terms, lays down that if any bidder having submitted a bid does not execute the agreement or start the work or does not complete the work and the work has to be put to re-bidding, he shall stand debarred from such re-bidding in addition to forfeiture of bid security or security and other action under the agreement as per Rules. He submitted that it was categorically stipulated in the notice dated 10.11.2021 that failure to execute work contract may entail action under Clause 27. Learned AG further submitted that even otherwise also, the writ petition is devoid of even a whisper of averment as to the prejudice caused to the petitioner on account of absence of any notice preceding the order impugned dated 7.12.2021. He, therefore, prayed for dismissal of the writ petition.
First, this Court deals with preliminary objection raised by learned Advocate General as to maintainability of the writ petition account of “suppressio veri” and “suggestio falsi”.
The Hon’ble Apex Court has, in the case of Ramjas Foundation (supra), held as under:
“21. The principle that a person who does not come to the Court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every Court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have bearing on adjudication of the issue(s) arising in the case.”
Their Lordships have, in the case of Bhaskar Laxman Jadhav (supra), held as under:
“44. It is not for a litigant to decide what fact is material for adjudicating a case and what is not material. It is the obligation of a litigant to disclose all the facts of a case and leave the decision making to the Court. True, there is a mention of the order dated 2.5.2003 in the order dated 24.7.2006 passed by the JCC, but that is not enough disclosure. The petitioners have not clearly disclosed the facts and circumstances in which the order dated 2.5.2003 was passed or that it has attained finality.
45. We may only refer to two cases on this subject. In Hari Narain v. Badri Das, AIR 1963 SC 1558 stress was laid on litigants eschewing inaccurate, untrue or misleading statements, otherwise leave granted to an appellant may be revoked. It was observed as follows:
“9….It is of utmost importance that in making material statements and setting forth grounds in applications for special leave care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. That is why we have come to the conclusion that in the present case, special leave granted to the appellant ought to be revoked. Accordingly, special leave is revoked and the appeal is dismissed. The appellant will pay the costs of the respondent.”
47. A mere reference to the order dated 2.5.2003, en passant, in the order dated 24.7.2006 does not serve the requirement of disclosure. It is not for the Court to look into every word of the pleadings, documents and annexures to fish out a fact. It is for the litigant to come upfront and clean with all material facts and then, on the basis of the submissions made by learned counsel, leave it to the Court to determine whether or not a particular fact is relevant for arriving at a decision. Unfortunately, the petitioners have not done this and must suffer the consequence thereof.”
A coordinate bench of this Court has, in the case of M/s. Sahayog Silk Mills Pvt. Ltd. & Anr. vs. Rajasthan State Industrial Development and Investment Corporation, Jaipur-2013 (3) WLC (Raj.) 624, held as under:
“13. That aside, I am of the considered view that the writ petition is also liable to be dismissed on ground of the petitioner-M/s. Silk Ltd. having indulged in suppressio veri and suggestio falsi. In the entire length of the pleadings, no reference has been made by the Company to the standard terms and conditions of the bid, read and signed by the Director of the petitioner-M/s. Silk Ltd. (annexure-1 to writ petition) Condition No.11 of the standard terms and conditions duly signed by the Director of M/s. Silk Ltd. reads as under :
“the bidder / purchasers will be responsible for payment of dues of Central Government Departments/ Agencies, separately.”
14. As against the above duly established facts, in ground “A” of the writ petition, it has been stated that the action of the RIICO in imposing new condition No.6 in the letter of acceptance dated 06.12.2007 was illegal, arbitrary, unjustified. This appears to have been done deliberately and mischievously, intending to mislead this Court. The petition has been filed only with reference to the advertisement dated 14.06.2007 overlooking the fact that the said advertisement was not final as to the conditions and merely a commencement of the process wherein it was categorically stated that the prospective bidders were to obtain the detailed terms and conditions either from the concerned Regional Manger / Sr. Regional Manager or from website of RIICO or from the Sr. Deputy General Manager (F&R), RIICO. The advertisement dated 14.06.2007 itself indicates that the terms and conditions of the bid as detailed in the advertisement were only indicative. The attempt of the petitioner-M/s. Silk Ltd. therefore has been to mislead the Court and prod it to adjudicate the writ petition on the basis of the conditions in the advertisement dated 14.06.2007 which was not conclusive and had to be read with the standard terms and conditions of the RIICO for sale of assets by it. The present case is a clear case of suggestio falsi for being set up only with reference to the advertisement dated 14.06.2007 and of suppressio veri for the suppression of the standard terms and conditions of the bid/sale of assets of RIICO duly signed and accepted by the petitioner- Company No.1. Writ petitions under Article 226 of the Constitution of India confer an equitable, extraordinary and discretionary jurisdiction on this Court. The word “extraordinary”, it goes without saying, entails careful exercise of the discretion of this Court on the extraordinary facts of a case of injustice as the issue of writs is never a matter of course even were a legal ground be made out. Further, it is trite that for invoking the equitable jurisdiction, the petitioners should approach this court with clean hands. A petitioner, guilty of suggestio falsi and suppressio veri, cannot even remotely be said to have approached this Court with clean hands. In the case of K.D. Sharma Vs. Steel Authority of India Ltd. & Ors. [(2008) 12 SCC 481], the Hon'ble Supreme Court has held that it is of “utmost necessity” (underlining mine) that one invoking the extraordinary, equitable and discretion of a court under Article 226 of the Constitution of India approach the court with clean hands, put forward all facts before the court without concealing and suppressing anything and then seek appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner guilty of misleading the court, the petition deserves a threshold dismissal without consideration of the merits, even if any, of the case. This writ petition in the facts of the case would have been liable to be dismissed on this short ground alone.
Thus, the unexceptional legal position which emerges from the conspectus of the aforesaid judgements is that every litigant is under a bounden duty to disclose all the facts of the case and the Court is not obliged to exercise equitable jurisdiction in favour of an unscrupulous litigant who does not come to the Court with clean hands and is guilty of suppressio veri and/or suggestio falsi.
When the facts of the present case are examined on the touch stone of the aforesaid salutary principle, this Court finds that the petitioner has not approached this Court with clean hands and has not only suppressed the material facts; but, has also tried to mislead the court. This writ petition has been filed by the petitioner assailing the demand of additional performance security. Indisputably, the demand is based on the NIT condition which provides for levy of additional performance security on abnormally low bids. In the entire memo of writ petition, there is not a whisper of averment that additional performance security is based on the NIT condition; rather, it is categorically averred therein that the demand is without any basis. In para 6 of the writ petition, it has been stated that the impugned demand of additional performance security has been raised by the respondent no.2 without providing any reason or basis in the work order. In paras 7, 9 and 10 of the writ petition, though, the petitioner has made reference of rejection of its first appeal as also second appeal preferred under Section 38 of the Act of 2012 against the additional performance security; but, mischievously, the reason for rejection is not mentioned therein, which obviously was demand being based on the NIT condition. It is trite law that a litigant is required to make all the averments pertaining to the case in the pleadings and the Court is not expected to fish out the facts from the documents appended with the petition.
Please Login To View The Full Judgment!
Their Lordships have, in the case of Bhaskar Laxman Jadhav (supra) held that a mere reference of the order dated 2.5.2003 and en passant in the order dated 24.7.2006 does not serve the requirement of disclosure. It is not for the Court to look into every word of pleading, documents and Annexures to fish out a fact and it is for the litigant to come upfront and clean with all material facts. Conspicuously, the orders passed by the appellate authorities have not been assailed on the ground that the NIT condition providing for additional performance security was bad in law; rather, vide grounds no.(c), (d), (e), (f), (h) and (i) of the writ petition the demand of additional performance security has been attacked by the petitioner on account that it was not leviable in the facts and circumstances of the case; such as, it was not based on evaluation of the price analysis/consideration of the schedule of the estimated contract payments/without appreciating the true sense of the Circular dated 27.2.2019 requiring payment of additional performance security from the successful bidder/bid submitted by the petitioner which was barely 8% less than the estimated total cost of the project/the stipulation as specified in the Circular dated 27.2.2019 was not even applicable on the particular item-wise list mentioned in the bid document/estimated rate in the BOQ has been provided as Nil or Rs.1 every item and the bidders were required to fill their rates. Even the holistic reading of the memo of writ petition does not reveal a shred of suggestion/averment therein that the additional performance security was based on the NIT condition and it is bad in law. Contention of the learned senior counsel for the petitioner that non disclosure of the NIT condition providing for additional performance security has no material bearing on the issue being void ab initio, cannot be countenanced. Indisputably, the demand of additional performance security flows from the NIT condition and if the petitioner assails the aforesaid demand, it was imperative for it to have disclosed the aforesaid fact which, in the considered opinion of this Court, has material bearing on the issue. Even otherwise also, a litigant is bound to disclose all the facts relevant to the case and it is for the Court to decide whether it has material bearing on the issue or not as held by the Hon’ble Apex Court in the case of Bhaskar Laxman Jadhav (supra) in the following terms: “It is not for a litigant to decide what fact is material for adjudicating a case and what is not material. It is the obligation of a litigant to disclose all the facts of a case and leave the decision making to the Court.” The same principle applies against the petitioner on its failure to disclose about the declaration as also the undertaking submitted by it along with the bid document to the effect that it has read, understood all the terms and conditions of the bid document including those in the addenda which were acceptable to it without any deviation. Contention of the learned senior counsel for the petitioner that it being a standard practice in all the bids, its non-disclosure has no bearing on the issue, does not merit acceptance in view of the settled legal position that a litigant is duty bound to disclose all the facts related to the case leaving it for the Court to decide whether the same are material on not. Thus, this Court is of the considered opinion that the petitioner is guilty of “suppressio veri” as well as “suggestio falsi” and the writ petition deserves to be dismissed on this count alone. The writ petition is dismissed accordingly.