Rajasthan High Court - Jaipur
M/S Shri Ram Traders vs State Of Rajasthan on 8 September, 2022
Bench: Manindra Mohan Shrivastava, Vinod Kumar Bharwani
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Special Appeal (Writ) No. 757/2022
In
S.B. Civil Writ Petition No.3644/2022
M/s Shri Ram Traders, through its Proprietor Brij Ballabh Sharma
S/o Shri Parmanand Sharma Aged about 54 Years, R/o Ganesh
Nagar Colony, Kota Road, Baran, Rajasthan.
----Appellant
Versus
1. State Of Rajasthan through Principal Secretary, Energy
Department, Government Of Rajasthan, Government
Secretariat, Jaipur, Rajasthan.
2. Rajasthan Rajya Vidyut Utpadan Nigam Ltd. through its
CMD, Vidyut Bhawan, Jaipur, Rajasthan.
3. Rajasthan Rajya Vidyut Utpadan Nigam Ltd. (Fuel Wing)
through its Additional Chief Engineer (ASH), Vidyut
Bhawan, Jaipur, Rajasthan.
4. Superintending Engineer (ASH), Rajasthan Rajya Vidyut
Utpadan Nigam Ltd. Vidyut Bhawan, Jaipur, Rajasthan.
5. Superintending Engineer (Fuel), Rajasthan Rajya Vidyut
Utpadan Nigam Ltd. Vidyut Bhawan, Jaipur, Rajasthan.
6. M/s Bankesh Mehta Construction Company, Motipura
Chowki, Thermal Chouraha Tehsil, Chabra, Dist. Baran,
Rajasthan.
----Respondents
For Appellant(s) : Mr. R.N. Mathur, Senior Advocate assisted by Mr. Shovit Jhajharia Advocate.
For Respondent(s) : Mr. M.S. Singhvi, Advocate General assisted by Mr. Sheetanshu Sharma Advocate & Mr. Pranav Bhansali Advocate.
Mr. Kratik Seth Advocate assisted by Ms. Shriya Gilhotra Advocate through Video Conferencing.
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(2 of 7) [SAW-757/2022] HON'BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI Judgment / Order 08/09/2022 Heard on admission.
Learned Senior Counsel appearing for the appellant would argue that the learned Single Judge committed illegality and perversity in vacating the interim order dated 03.03.2022 on the ground that in the writ petition, the appellant-writ-petitioner did not disclose that in connection with the work under the contract awarded to it, as many as 15 letters and notices on various occasions conveying complaint of over charging of the rate and not performing work diligently was issued. Learned Senior Counsel would further argue that the learned Single Judge failed to appreciate that the relief sought in the writ petition was essentially based on the ground that the respondents- authorities have allowed another contractor to execute a part of the work already awarded to the appellant-writ-petitioner under the contract, which is still subsisting and not cancelled. His submission is that such non-disclosure was not with any intention to mislead the Court by suppressing material facts, but only on bona-fide assumption on the part of the appellant-writ-petitioner that those facts were not material for adjudication of the controversy involved in the writ petition.
Learned Senior Counsel further contended that whether or not those facts are disclosed, it has no bearing on the merits of the case pending before the learned Single Judge inasmuch as even if it is found that there were issues relating to recovery of higher rate of charges, though denied by the appellant-writ-petitioner, or an issue that the authorities were alleging failure on the part of the appellant- (Downloaded on 25/12/2022 at 07:35:37 AM)
(3 of 7) [SAW-757/2022] writ-petitioner to execute the work in accordance with the terms of the contract, the ground on which action of the respondents in awarding a part of the contract under the subsisting agreement with the appellant-writ-petitioner to another contractor would still stand because the contract of the appellant-writ-petitioner is subsisting. Therefore, it is argued, it cannot be said to be suppression of material facts affecting the ultimate result of the case.
On the other hand, learned Advocate General would submit that the appellant-writ-petitioner sought to invoke extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, which is equitable relief and, therefore, the appellant-writ-petitioner ought to have come with clean hands. His submission is that it is not for the appellant-writ-petitioner to decide whether the facts relating to the dispute between the parties are relevant for adjudication of the controversy involved in the writ petition, but it is the Court which has to decide the issue of relevance and what was required on the part of the appellant-writ-petitioner was to disclose all the facts concerning the dispute between the parties. He would submit that the dispute between the parties is essentially in the realm of contractual dispute and the Writ Court has discretion to interfere or not to interfere and it is not necessary that in every contract involving the state and an individual, the Writ Court would necessarily interfere because there exists an alternative remedy of seeking damages. The appellant-writ- petitioner while filing the writ petition deliberately made a false statement in para 9 of the writ petition that the appellant-writ- petitioner is performing its duties at the given site with diligence and that respondents have not issued any warning or show cause notice with regard to the work of the appellant-writ-petitioner, therefore, it can be safely concluded that the appellant-writ-petitioner is (Downloaded on 25/12/2022 at 07:35:37 AM) (4 of 7) [SAW-757/2022] discharging its duties with utmost sincerity. The appellant-writ- petitioner painted a picture before this Court that it was discharging its duties without complaint on ingeniously crafted pleadings as if it was being harassed for not good reasons or that the authorities, have absolutely no basis, whatsoever, to award a part of work earlier assigned to the appellant-writ-petitioner, to a third party as the appellant-writ petitioner's work was without any blemish. At the stage of granting interim relief, the appellant-writ-petitioner was required to disclose these facts so that the learned Single Judge could have exercised its discretion whether or not to grant interim relief. The interim relief was granted by the learned Single Judge on such innocuous pleadings. When these facts were brought to the notice of the learned Single Judge, the stay granted in favour of the appellant- writ-petitioner was rightly vacated. He would further submit that when the writ petition was listed before the learned Single Judge on 22.04.2022, time was granted to satisfy the Court regarding the aforesaid aspect of suppression of material facts and the writ petition containing false averments having important bearing on the issue whereafter, the appellant-writ-petitioner sought to amend the pleadings as is reflected in the impugned order. In Support of his submissions, learned Advocate General has placed reliance on the decisions of the Hon'ble Supreme Court in the cases of Bhaskar Laxman Jadhav and Others Versus Karamveer Kakasaheb Wagh Education Society and Others, (2013) 11 Supreme Court Cases 531 and Sciemed Overseas Inc. Versus BOC India Limited and Others, (2016) 3 Supreme Court Cases 70.
We have considered the submissions of learned counsel for the parties and perused the records.
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(5 of 7) [SAW-757/2022] The appellant-writ-petitioner filed writ petition raising a grievance that during subsistence of contract awarded to the appellant-writ- petitioner by the respondents, a part of its work is sought to be allowed to a third party. The legal issue raised by the appellant-writ- petitioner in essence was that as long as the contract between the parties subsists, the work under the contract could not be awarded to a third party. Pleadings made in paragraph 9, as has been referred by the learned Single Judge were to the effect that till the date of filing of the writ petition, appellant-writ-petitioner is performing its duties at the given site with diligence and that till date, respondents have not issued any warning or show cause notice with regard to the work of the appellant-writ-petitioner, thus, it can be safely concluded that the appellant-writ-petitioner is discharging its duties with utmost sincerity. Finding a prima-facie case that without there being anything against the appellant-writ-petitioner, a part of its work is sought to be awarded to a third party, learned Single Judge exercised its discretion at that stage to protect the appellant-writ-petitioner by an interim order.
However, later on, when the reply was filed by the respondents, it was disclosed before the Court that about 15 communications/ notices were issued to the appellant-writ-petitioner involving dispute with regard to the rate at which charges could be recovered and at times, letters were also issued complaining that the appellant-writ- petitioner was not able to complete its work as per the terms of the contract and there were shortcomings in its performance.
Technically speaking, it is true that no show cause notice with regard to the work of the appellant-writ-petitioner proposing to cancel contract, was issued. However, learned Single Judge has taken a prima-facie view at the stage of consideration of interim applications including application for vacating stay that non-disclosure of various (Downloaded on 25/12/2022 at 07:35:37 AM) (6 of 7) [SAW-757/2022] communications amount to suppression of material facts. Whether communications made to the appellant-writ-petitioner should be treated as warning or not is essentially a matter for being considered at the stage of final hearing of the writ petition.
Jurisdiction under Article 226 of the Constitution of India is essentially an extraordinary and discretionary power of the Writ Court. Further, even before final adjudication, whether the appellant-writ- petitioner, who has come before the Court, should be protected by an interim relief is also a matter of discretion, though required to be exercised judiciously on application of settled principles with regard to grant of interim relief in the writ petition.
The ground of interim relief and vacating interim relief both are orders of interim nature and do not finally adjudicate the issue between the parties. However, the learned Single Judge has exercised its discretion not to continue interim order because it found that the appellant-writ-petitioner's assertion of its work being absolutely clean and unblemished, was factually incorrect in the light of various communications placed on record by the respondents. Whether the respondents were justified in issuing those letters, making allegation of short performance of contract or charging rates at a rate higher than the permissible rate under the law is essentially a matter for consideration at the final stage of the case.
Nevertheless, learned Single Jude was of the view that had those facts being disclosed, its discretion to grant or not to grant interim relief would have been exercised, taking into consideration such facts.
It is the serious allegation of the respondents in their reply that the appellant-writ-petitioner is guilty of suppressio veri and suggestio falsi, which has prompted learned Single Judge not to continue interim order, which perhaps was granted on the basis of pleadings that (Downloaded on 25/12/2022 at 07:35:37 AM) (7 of 7) [SAW-757/2022] discharge of work by the appellant-writ-petitioner was unblemished and clear without any warning or show cause notice.
In our considered view, the order passed by the learned Single Judge cannot be said to be patently illegal or outrageously erroneous that we should interfere with the order in this intra-court appeal, particularly taking into consideration that there is no final adjudication on merits of the case on various issues.
We, however, hasten to clarify that this appeal is only against an interim order and not against any final adjudication on merit, we leave this issue to be considered by the learned Single Judge as to whether in view of relief sought in the writ petition, the facts which were not disclosed would dis-entitle the appellant-writ-petitioner to main relief. We also leave it open for consideration by the learned Single Judge whether despite issuance of various communications and the letters, referred to in the order of the respondents, it was legally permissible for respondents to reduce the quantity of work awarded under the contract to the appellant-writ-petitioner without termination of contract. This, we are saying so because learned Single Judge has not finally disposed off the writ petition, but kept the same pending which would necessarily mean that a final view on all the aspects, which have been considered in the impugned order, is yet to be taken and the views are prima-facie only confined to the aspect as to whether interim order earlier granted in favour of the appellant-writ-petitioner should be continued.
In the result, we do not find any merit in the appeal and the same is, therefore, dismissed.
(VINOD KUMAR BHARWANI),J (MANINDRA MOHAN SHRIVASTAVA),ACTING CJ Sanjay Kumawat-4 (Downloaded on 25/12/2022 at 07:35:37 AM) Powered by TCPDF (www.tcpdf.org)