Delhi High Court
Sh.Bali Ram vs Municipal Corporation Of Delhi on 13 April, 2009
Author: G.S. Sistani
Bench: G.S.Sistani
* IN THE HIGH COURT OF DELHI AT NEW DELHI
[1] WP(C)No.9669/2007
Judgments delivered on April 13th, 2009
# SH. BALI RAM .... Petitioner
Through : Ms. Anusuya Salwan, Adv.
Versus
$ MUNICIPAL CORPORATION OF DELHI .... Respondent
^ Through : Mr. Amit K. Paul, Adv.
[2] WP(C)No.9287/2007
# SH. BALI RAM .... Petitioner
Through : Ms. Anusuya Salwan, Adv.
Versus
$ MUNICIPAL CORPORATION OF DELHI .... Respondent
^ Through : Mr. Amit K. Paul, Adv.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
1. Whether reporters of local papers may be allowed to see
the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the
Digest? Yes
G.S. SISTANI, J:
1.
2. Learned counsel for the parties submit that both the writ
petitions are identical in nature, the parties in both the
petitions are same and the pleadings and annexures are also
identical, except the work order is different. Hence both the
WP(C)No.9669/2007 & WP(C)No.9287/2007 Page 1 of 18
abovesaid petitions are being disposed of by a common
judgment.
3. In the writ petition [WP(C)No.9669/2007] the petitioner was
awarded work of Development of U/R Colony SH: Construction
of drain and providing RMC from Arya Samaj Mandir to out fall
drain and from Rza 34/233 to RZJ-43 in West Sagarpur in W
No.52/NGZ. The estimated cost of work was Rs.49.75 lakhs
and the time for completion of work was eight months.
4. In the writ petition [WP(C)No.9287/2007 petitioner was
awarded a work of Development of U/R Colony SH:
Construction of drain and providing RMC from WZ 404 Gali
No.4A, near Ram Chowk to Pradhan Chowk and from Tanwar
House Gali No.16 to Sanchan Medical Store in Sadh Nagar in
Work Order No.387/NGZ. The estimated cost of work was
Rs.49,42,700/- and the time for completion of work was eight
months.
5. It is contended by counsel for the petitioner that immediately
after awarding of work, the petitioner mobilized his resources
to execute the work but it was found that though the work was
awarded with respect to construction of a drain but actually
the work which was sought to be executed pertained to work
of sewerage system. Hence, the work was not within the
scope of work awarded and the petitioner immediately brought
it to the notice of the respondent vide letter dated 30.05.2007.
The petitioner kept on representing to the respondent and
after persistent efforts the Superintending Engineer, Nazafgarh
Zone, agreed to have a meeting in the office wherein the
WP(C)No.9669/2007 & WP(C)No.9287/2007 Page 2 of 18
representative of the petitioner was present and it was agreed
by the respondent that since the scope of the work was totally
different, extra items would be sanctioned and the same would
be got approved by the executive engineer and also his
running bills would be passed. Learned counsel contends that
despite having given an assurance that extra items would be
sanctioned, nothing was done and this fact was brought to the
notice of the respondent vide letter dated 29.10.2007. It is
also contended that no work could be carried out at the site on
account of various reasons which were brought to the notice of
the respondents. Vide letter dated 30.05.2007 petitioner
brought it to the notice of the respondent that the site was
also not available as the width of the road was from 12 feet to
18 feet and even lesser in places and in the said site two
sewer lines and two water lines were in running position
because of which there was no scope for excavation and
hence RCC pipes could not be laid unless the running sewer or
water pipes were removed. It was also brought to the notice
of the respondent that this was not within the scope of the
work and further that the width of the road was so narrow that
the material could not be stacked. These facts were brought
to the notice of the respondents vide letter dated 29.10.2007
and 13.11.2007. While no action was taken pursuant to the
letters of the petitioner, the petitioner received a letter dated
06.11.2007 informing the petitioner that the above mentioned
contract work have been closed and his earnest money have
been forfeited and action would be taken against him for not
WP(C)No.9669/2007 & WP(C)No.9287/2007 Page 3 of 18
following instructions for enlistment of contracts in the MCD.
Petitioner claims to have replied to the aforesaid letter vide
letter dated 14.11.2007 bringing it to the notice of the
respondent that there has been no delay on his part and it is
the respondent who had committed breach of contract.
Various other reasons were also brought to the notice of the
respondent including non-availability of approval of designs
and drawings. The petitioner thereafter received the
impugned circular dated 26.11.2007 blacklisting the petitioner,
which led to the filing of the present petitions.
6. Learned counsel for the petitioner submits that the circular
dated 26.11.2007 is bad in law and is liable to be set aside as
the petitioner was not given any show cause notice before
passing the impugned circular blacklisting the petitioner. It is
contended that the petitioner was informed by the Executive
Engineer that action would be taken against him under the
Enlistment Rules, but no show cause notice has been given.
Moreover, the Additional Commissioner (Engineering) passed
the impugned order without giving any opportunity to the
petitioner to show cause and give a personal hearing. The
respondents, as per the petitioner, have failed to comply with
the principles of natural justice and the petitioner has been
debarred and thus his right of livelihood has been taken away
by a cryptic and an unreasoned order. Learned counsel for the
petitioner also contends that the only action that could have
been taken was under Rule 22 of the Enlistment Rules. Rule
22 reads as under:-
WP(C)No.9669/2007 & WP(C)No.9287/2007 Page 4 of 18
"22 Disciplinary Actions
The contractor shall have to abide by all the
rules of enlistment and also by the terms
and conditions of the contract and the Notice
inviting tenders. He shall have to execute
the works satisfactorily, on time and with
good quality. The enlisting authority shall
have the right to a lower class, suspend
business with him for any period, debar him
or remove his name from the approved list
of contractors after issue of show cause
notice. Decision of the department shall be
final and binding on the contractor. The
following actions of the contractor shall, in
general, make him liable to disciplinary
actions."
[Emphasis supplied]
7. Mr.Amit K. Paul, learned counsel for the respondent - MCD has
opposed these petitions on two grounds: firstly the petitioner
has not approached this court with clean hands and has
suppressed and withheld material facts and communications
and thus the petitioner is not entitled to invoke the extra
ordinary jurisdiction of this Court and secondly respondents
have complied with the principles of natural justice and have
issued show cause notice to the petitioner, granted personal
hearing and thereafter passed the impugned order. Learned
counsel further submits that even on merits the petitioner did
not comply with the terms of the work order and thus the
impugned orders were passed. Counsel for the MCD relies on
paras 3 to 6 of the counter affidavit, which are reproduced
below:
"3. It is respectfully submitted that the instant
petition is not maintainable as it is devoid of any
justiciable cause of action or legally enforceable
rights in favour of the petitioner. Neither is the
WP(C)No.9669/2007 & WP(C)No.9287/2007 Page 5 of 18
instant case one where the respondent has failed
to discharge a statutory obligation or acted
contrary to the statute or procedure prescribed
therein. The petitioner has in fact misrepresented
and concealed vital facts from this Hon‟ble Court
and is attempting to abuse the process of this
Court to secure his vested interests.
4. The main grievance of the petitioner is that
he has been debarred from further tendering with
the MCD for a period of 5 years vide circular dated
26.11.07 without following the principles of natural
justice in as much as neither was any show cause
opportunity given to him and nor was any personal
hearing granted to him before passing the said
order. On the contrary it is submitted that a show
cause notice as well as personal hearing was given
to the petitioner and only thereafter the impugned
order was passed in accordance with the rules of
enlistment of the contractors.
5. The petitioner was awarded the work of
Development of unauthorized regularized colony,
Sub-Head construction of drain and providing
Ready Mix Concrete from WZ 404 Gali No.4A, Near
Ram Chowk to Pradhan Chowk and from Tanwar
House, Gali No.16 to Sanchan Medical Store in
Sadh Nagar, in ward no.52 in Najafgarh Zone vide
work order no.EE/VI/Plan /TC/06-07/387 dated
15.03.2007. It is respectfully submitted that the
petitioner has failed to perform any work
whatsoever awarded to him under the subject
contract. It is submitted that work order on the
petitioner had been placed on 15.3.2007 and the
contract agreement was entered into on
20.3.2007. Needless to say, at the time of
tendering and even at the time of accepting the
work order and signing the work contract, the
applicant was deemed to have inspected the work
site and/or satisfied himself as to the nature of the
work to be performed and therefore all grievances
/disputes raised by the petitioner in this regard
subsequently are devoid of merit.
6. That even though the work order had been
placed on the petitioner on 15.03.2007 the
petitioner did not commence any work pursuant to
the same citing one reason or the other. Since the
awarded work was to be completed within a period
of eight months i.e. by 23.11.2007, the
respondents vide letter dated 03.10.2007
requested the petitioner to commence the work
immediately. Subsequently, vide letter dated
09.10.2007 the petitioner was given notice to
WP(C)No.9669/2007 & WP(C)No.9287/2007 Page 6 of 18
show cause as to why action under clause of the
agreement be not taken against him as he was
liable to pay compensation on account of not
starting the work. The petitioner was further
directed to show cause within a week‟s time as to
why action for suspension of business from
debarring from tendering in the M.C.D./Black
listing of the firm for not executing the work as per
the rules of enlistment be not taken. It was again
brought to the notice of the petitioner vide letter
dated 10.10.2007 that the work awarded was of
urgent nature for providing drainage system and
improvement of roads and since it had not yet
been started, the residents in the area were facing
great difficulty. However, before taking any action
in the interest of natural justice, the petitioner was
granted an opportunity to explain his position with
regard to the non-commencement/non-completion
of the awarded work.
7. That before taking any further disciplinary
action against the petitioner a personal hearing
was given to him by the Superintending Engineer,
Najafgarh Zone on 15.10.2007 during the course
of which the petitioner acknowledged that he was
yet to start the contracted work and further
promised to commence and complete the same at
the earliest. However, despite this commitment,
the petitioner failed to commence the contracted
work because of which the respondent were
constrained to send him another letter dated
06.11.2007 informing him that his work order "had
been closed" and earnest money of Rs.72,500/-
deposited at the time of tendering had been
forfeited and that his case was being processed for
further disciplinary action. Only thereafter as per
the enlistment rules circular dated 26.11.2007 was
issued by the Administrative Officer, Engineering
Department (HQ)."
8. I have heard learned counsel for the parties, who have taken
me through the petitions as well as annexures filed along with
the writ petition and reply thereto. No rejoinder has been
filed. Petition [WP(C)No.9287/2007] was filed earlier in time.
On the first date of hearing, when the matter came up for
hearing, the following order was passed on 17.12.2007:
WP(C)No.9669/2007 & WP(C)No.9287/2007 Page 7 of 18
"WP(C)9287/2007
Issue notice to show cause to the respondent
as to why rule nisi be not issued.
Mr.Amit S.Paul, Adv. accepts notice and
prays for time to file counter affidavit. Let the
same be filed within four weeks. Rejoinder
thereto, if any, may be filed before the next date
of hearing.
List on 14th May, 2008.
CM.17518/2007
Notice.
Mr.Amit S.Paul, Adv. accepts notice and
prays for time to file reply. Let the same be filed
within four weeks. Rejoinder thereto, if any, may
be filed before the next date of hearing.
List on 14th May, 2008.
Having regard to the grievance of the
petitioner that he has been debarred from
contracting with the MCD without issuing of notice
to show cause, there shall be a stay of the order
dated 26th November, 2007, till the next date of
hearing."
9. Subsequently petition [WP(C)No.9669/2007] was filed.
Relying upon the earlier order, show cause notice was issued
and the following order was passed on 2.1.2008:
"WP(C)9669/2007 & CM.18235/2007
Learned counsel for the parties state that in
an another writ petition WP(C)No.9287/2007,
notice has been issued and operation of the
circular dated 26th November, 2007 relating to the
work order No.EE-VI/Plan/TC/06-07/387 has been
stayed.
In these circumstances, issue notice to the
respondent /MCD to show cause as to why rule nisi
be not issued.
Mr.Amit K. Paul, Adv. accepts notice on
behalf of the Municipal Corporation of Delhi.
Counter affidavit shall be filed within three weeks.
Rejoinder, if any, will be filed within two weeks
thereafter.
In the meantime, operation of the impugned
Circular dated 26th November, 2007 is stayed.
However, it is clarified that it will be open to the
respondent/ MCD to issue show cause notice and
pass appropriate orders in terms of instructions for
enlistment of Contractors in MCD including Clause
22."
WP(C)No.9669/2007 & WP(C)No.9287/2007 Page 8 of 18
10. This court while issuing notice to show cause had
considered the submissions of counsel for the petitioner that
MCD without issuing show cause notice had debarred the
petitioner. On this submission, stay of the order dated
26.11.2007 was passed. Even in the body of the writ petition
it has been stated that after the award of the work, the
petitioner mobilized his resources, but found that the work
awarded was with respect to the construction of drain
however, the work which was sought to be executed pertained
to sewerage system which was brought to the notice of the
respondent vide letter dated 30.5.2007 (identical in both the
matters). Thereafter, petitioner is stated to have met the
Superintendent Engineer, Najafgarh Zone on 15.10.2007.
Perusal of the counter affidavit of respondent would show that
this meeting of 15.10.2007 was held in fact pursuant to a
communication dated 10.10.2007. As per the respondent,
after the work having been awarded to the petitioner, the
latter did not commence the work, forcing the respondent to
issue a communication dated 3.10.2007 which is reproduced
below:
"No. D/ 499/EEVI/2007 Dated 3.10.2007
M/s.Dagar & Co.
Mpl. Contractor,
Sub: Dev. of U/R. Cly. S/H: C/o. drain & [pdg. RMC
from Arya Samaj Mandir to outfall drain and from
RZA 34/233 to RZ-343 in West Sagarpur NGZ
The above cited work has been awarded to you
vide Work Order No.EEVI/Plan /TC/06-07/388 dated
15.3.07 with a completion period of 8 months. The
work has not been started by you so far even after
verbal pursuations. The non-taking up of the work may
WP(C)No.9669/2007 & WP(C)No.9287/2007 Page 9 of 18
result in inordinate delay in completion of the project
and inconvenience to the residents. You are, therefore,
directed to start the work without further loss of time
failing which action under the relevant clauses of the
agreement will be started against you & explain the
reasons for non starting the work so far within three
days of the receipt of this letter.
Yours faithfully,
Sd/-
Asstt. Engineer-II
Copy to: 1. SE (NGZ) for information pls.
2. EE VI for information pls."
11. After issuing of this letter dated 3.10.2007, another letter
dated 9.10.2007 was issued wherein it was pointed out that
the stipulated date of completion was 23.11.2007. Despite six
months having already been elapsed, the work has not
commenced till date. Petitioner was also directed to show
cause within one week as to why action for suspension of
business with his firm and further tendering the firm in the
black list, be not taken by the MCD. Petitioner was also
cautioned that if no reply is received within the specified
period, it would be presumed that you have nothing to say.
Communication dated 9.10.2007 is reproduced below:
"No. D/ 525/EEVI/2007 Dated 9.10.2007
M/s.Dagar & Co.
Mpl. Constractor,
Village & Post Office Issapur,
New Delhi -110 073
Sub: Development of unauthorized colony S.H.:
C/o. drain & pdg. RMC from WZ 404 Gali No.4A,
near Ram Chowk to Pradhan Chowk and from
Tanwar House Gali No.16 to Sanchan Medical Store
in Sadh Nagar
Dear Sirs,
WP(C)No.9669/2007 & WP(C)No.9287/2007 Page 10 of 18
The above said work was awarded to you
vide W.O. NO.EEVI/Plan/ TC/06-07/387 dated
15.3.2007 with a completion period of 8 months.
The stipulated date of completion of this as per
agreement is 23.11.2007. Time of more than 6
months have already been elapsed, but you have
not started the work even after personal
pursuations as well as in writing vide letter
No.D/498/EEVI dated 3.10.2007. This work is of
urgent nature for providing drainage system and
improvement of road by providing ready mix
concrete, but you have not started the work due to
which area residents are facing great difficulties.
It is, therefore, directed to start the work
immediately and complete with full swing. Your
non-taking up of work so far rendered yourself
liable to pay compensation under clause 2 of the
aforesaid agreement.
In exercise of powers conferred on me under
clause 2 of the agreement I, Ravinder Singh,
Executive Engineer (VI) hereby give you notice to
show cause within a week‟s time to my satisfaction
as to why action under clause 2 of the agreement
be not taken against you as are liable to pay
compensation on account of not starting the work.
You are also directed to show cause within a
week‟s time as to why action for suspension of
business with your firm/ debarring your firm from
further tendering in the MCD/ black list of your
firm, for not taking up the work as per the rules of
enlistment be not taken. If no reply is received
from you to the satisfaction of the undersigned
within above specified period, it will be presumed
that you have nothing to say in this regard and the
matter will be referred to the higher authority for
initiating disciplinary action against you under the
relevant clauses of the agreement.
Yours faithfully,
Sd/-
(Ravinder Singh)
Executive Engineer (VI)
Copy to:
1. C.E.-I for information pl.
2. DC (NGZ) for information pl.
3. SE(NGZ) for information pl.
4. AE-II to pursue & report.
Executive Engineer (VI)"
WP(C)No.9669/2007 & WP(C)No.9287/2007 Page 11 of 18
12. It is further observed that vide letter dated 10.10.2007
another opportunity was granted to the petitioner to explain in
person on 15.10.2007 at 11:00 a.m. Thus, the letters dated
3.10.2007, 9.10.2007 and 10.10.2007 would show that hearing
which took place on 15.10.2007 was pursuant to
communication dated 10.10.2007 and not due to persistent
requests by the petitioner, as stated in para 5 of the writ
petition. As per the writ petition, meeting of 15.10.2007 was
held on account of persistent efforts of the petitioner. Para 5
of the writ petition reads as under:
"5. The petitioner kept representing to the
respondent bringing out the aforementioned facts
to the Respondents that the work awarded is in
fact contrary to the work to be executed and
therefore extra items should be prepared.
Accordingly after persistent efforts the
Superintending Engineer, Nagafgarh Zone agreed
to have a meeting in his office wherein the
representative of the petitioner was present and
that it was agreed by the Respondent that since
the scope of work was totally different extra time
would be sanctioned and the same would be got
approved by the Executive Engineer and also his
running bills would be passed. That despite having
given assurance that extra items would be
sanctioned nothing was done, as a result of which
the petitioner was constrained to bring this to the
notice of the respondent by letter dated
29.10.2007"
13.During the course of hearing no reasonable explanation has been
rendered as to why the petitioner has suppressed the aforestated
communication. In the case of Arunima Baruah Vs. Union of
India, (2007) 6 SCC 120, the Apex Court has held that a petitioner
would be disentitled to seek discretionary relief in case of
suppression of material facts. Para 12 of the same reads as under:
WP(C)No.9669/2007 & WP(C)No.9287/2007 Page 12 of 18
"12. It is trite law that so as to enable the court to
refuse to exercise its discretionary jurisdiction
suppression must be of material fact. What would be a
material fact, suppression whereof would disentitle the
appellant to obtain a discretionary relief, would depend
upon the facts and circumstances of each case.
Material fact would mean material for the purpose of
determination of the lis, the logical corollary whereof
would be that whether the same was material for grant
or denial of the relief. If the fact suppressed is not
material for determination of the lis between the
parties, the court may not refuse to exercise its
discretionary jurisdiction. It is also trite that a person
invoking the discretionary jurisdiction of the court
cannot be allowed to approach it with a pair of dirty
hands. But even if the said dirt is removed and the
hands become clean, whether the relief would still be
denied is the question.
13. xxxxxxxx
14. In Halsbury's Laws of England, 4th Edn., Vol. 16,
pp. 874-76, the law is stated in the following terms:
"1303. He who seeks equity must do equity.--In
granting relief peculiar to its own jurisdiction a
court of equity acts upon the rule that he who
seeks equity must do equity. By this it is not
meant that the court can impose arbitrary
conditions upon a plaintiff simply because he
stands in that position on the record. The rule
means that a man who comes to seek the aid of
a court of equity to enforce a claim must be
prepared to submit in such proceedings to any
directions which the known principles of a court
of equity may make it proper to give; he must do
justice as to the matters in respect of which the
assistance of equity is asked. In a court of law it
is otherwise: when the plaintiff is found to be
entitled to judgment, the law must take its
course; no terms can be imposed.
* * *
1305. He who comes into equity must come with
clean hands.--A court of equity refuses relief to a
plaintiff whose conduct in regard to the subject-
matter of the litigation has been improper. This
was formerly expressed by the maxim „he who
has committed iniquity shall not have equity‟,
and relief was refused where a transaction was
based on the plaintiff‟s fraud or
misrepresentation, or where the plaintiff sought
to enforce a security improperly obtained, or
where he claimed a remedy for a breach of trust
WP(C)No.9669/2007 & WP(C)No.9287/2007 Page 13 of 18
which he had himself procured and whereby he
had obtained money. Later it was said that the
plaintiff in equity must come with perfect
propriety of conduct, or with clean hands. In
application of the principle a person will not be
allowed to assert his title to property which he
has dealt with so as to defeat his creditors or
evade tax, for he may not maintain an action by
setting up his own fraudulent design."
14. As far as the merits of the matter is concerned, a bare
reading of the writ petition would show that not only has the
petitioner concealed three important letters from this Court i.e.
letters dated 3.10.2007, 9.10.2007 and 10.10.2007, but has
intentionally tried to hoodwink this court, in para 5 of the
petition, it has been averred that a meeting of 15.10.2007 was
fixed on account of persistent efforts on the part of the
petitioner for the meeting. It may be noticed that work was
awarded to the petitioner vide work order dated 15.3.2007 for
completion of the same within eight months i.e. by
23.11.2007. On 3.10.2007, the petitioner was warned that
despite verbal requests the petitioner has not started the work
and due to delay in completion of the project there would be
inconvenience to the residents. Petitioner was directed to
start the work without loss of time failing which action under
the relevant clause of the agreement will be initiated and
petitioner was asked to explain the reasons for not starting the
work within three months. Vide communication dated
9.10.2007, while the contents of earlier letter were reiterated
and petitioner was informed that his not taking up the work till
date had rendered himself liable to pay compensation under
WP(C)No.9669/2007 & WP(C)No.9287/2007 Page 14 of 18
clause 2 of the aforesaid agreement and petitioner was asked
to show cause as to why action under clause 2 of the
agreement be not taken and also show cause why his firm
should not be blacklisted. Vide communication dated
10.10.2007, the petitioner was informed that in the interest of
justice he had been granted an opportunity to explain his
position in person on 15.10.2007 at 11:00 a.m. Petitioner did
not file any reply to letters dated 3.10.2007, 9.10.2007 and
10.10.2007. In addition to the aforesaid letters, a personal
hearing was granted wherein the petitioner had assured that
the work would commence. However, the petitioner did not
commence the work and he was informed by letter dated
6.11.2007 that as per circular dated 2.6.2003, the cases where
the work order /contract has been awarded for more than six
months and work has not yet started, the same is deemed as
closed and accordingly the contract /work order was closed
and earnest money of Rs.75,000/- was forfeited. Petitioner is
stated to have sent reply to this communication which was
found unsatisfactory.
15. Perusal of these communications would show that
despite a work order having been issued to the petitioner to
comply with the work within eight months, for over a period of
six months, the petitioner did not even start the work and in
addition of being asked verbally, the petitioner was issued
several communications dated 3.10.2007, 9.10.2007,
10.10.2007 and 6.7.2007; and a personal hearing was also
granted to the petitioner and it was only thereafter that the
WP(C)No.9669/2007 & WP(C)No.9287/2007 Page 15 of 18
petitioner was black listed. Not only the petitioner was issued
show cause notice, but he was also granted a personal
hearing. Learned counsel for the petitioner has relied upon in
the case of Gullapalli Nageswara Rao Vs. APSRTC,
reported at AIR 1959 SC 308, Saraswati Dynamics (P) Ltd.
Vs. U.O.I., reported at 2003 (IV) AD (Delhi) 225, and
Mekaster Trading Corporation Vs. U.O.I., reported at 106
(2003) DLT 573 in support of his submission that observance
of principles of natural justice was mandatory before passing
an order „blacklisting the petitioner‟. There is no quarrel to
this proposition of law argued by the counsel for the petitioner.
However, the judgments relied upon by the petitioner cannot
come to his rescue, in view of the facts of this case wherein a
proper show cause notice as well as a personal hearing was
given and even otherwise, the fact that despite work having
been awarded, the petitioner did not even commence the
work, I find there to be no infirmity in the impugned order.
Learned counsel for the petitioner has also referred to clause
22 of the Enlistment Rules, in support of her plea that the
show cause notice was mandatory. I find that the said rule has
been complied with in this case as a show cause notice was
given. In the case of Nova Steel (India) Ltd. Vs. MCD &
Ors., reported at (1995) 3 SCC 334, notice was issued to the
petitioner as to why should he not be black listed or debarred
for having not replied despite receipt of notice by the
petitioner, the Apex Court did not interfere with the order of
WP(C)No.9669/2007 & WP(C)No.9287/2007 Page 16 of 18
respondent, who had debarred the petitioner. Relevant
portion of the judgment reads as under:
"2. It is thus clear that the petitioner having
negotiated with the respondent to supply the iron
and received the acceptance in that behalf, he was
required to enter into the contract and to start
supply immediately, had not done the same.
Despite receipt of the notice of show cause, no
reply thereto was given. The respondent
necessarily has to take further action to get the
supply of required steel. Therefore, they exercised
the power and issued notice to the petitioner
which would be consistent with the principles of
natural justice and passed the offending order
blacklisting the petitioner for a period of two years.
The conduct of the petitioner constrained the
respondents to pass the order of blacklisting. The
exercise of the power, therefore, cannot be said to
be unwarranted nor arbitrary nor irrelevant. The
High Court, therefore, is right in declining to
interfere with the offending order in exercise of its
discretionary power under Article 226 of the
Constitution. We, therefore, find no ground
warranting interference under Article 136. The
SLP is accordingly dismissed."
16. For the reasons that sufficient opportunity had been granted
to the petitioner to explain his case and the petitioner has not
even started the work, I find no reason to interfere in the
impugned circular dated 26.11.2007.
17. In addition the conduct of the petitioner is such that he is not
entitled to any discretionary relief on the grounds that he had
mala fide intention and with a view to gain unfair advantage,
the petitioner on the first date of hearing misled this Court,
stating that no show cause notice was issued prior to the order
of blacklisting, and obtained a stay order. The petitioner has
suppressed documents which are material, integral, essential
and necessary for deciding the lis between the parties. A
WP(C)No.9669/2007 & WP(C)No.9287/2007 Page 17 of 18
person who seeks equity must do equity. The petitioner has
not approached this Court with clean hands and has
suppressed material communications dated 3.10.2007,
9.10.2007 and 10.10.2007. The sharp practices adopted by
the litigants are fast gaining pace and should be discouraged.
18. Petitions are accordingly dismissed with costs of Rs.25,000/-
each to be paid to the Delhi High Court Legal Aid Society.
G.S. SISTANI, J.
th April 13 , 2009 'ssn‟ WP(C)No.9669/2007 & WP(C)No.9287/2007 Page 18 of 18