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Judgment
Protik Prakash Banerjee, J
This writ petition under Article 227 of the Constitution of India seeks the following reliefs:
"(a) A Writ in the nature of Mandamus directing the respondent authorities to take immediate steps as per reply being memo No. NO-CAO(FA&TR/IDV/RTI/2018-191 dated 19/01/2019 given to the RTI Application and to act promptly to release the entire outstanding service bills submitted by the petitioner forthwith.
(b) A Writ in the nature of Mandamus to issue upon the respondent authorities to take necessary steps to resolve the dispute regarding payment of G.S.T. if any, on the basis of admission of releasing the entire service bills upto date reflected in the letter dated 19.01.2019 issued by the respondent no. 2 and to release the entire outstanding.
(c) A Writ in the nature of Certiorari do issue upon the respondent authorities directing them, their men, agents employees and subordinates to transmit before This Hon'ble Court all records and documents pertaining to the instant case so that conscionable justice may be done by passing appropriate order upon perusal of the same. "
The writ petition was affirmed by a purported constituted attorney of the petitioner, a proprietorship concern on March 13, 2019. The writ petitioner has not been arrayed as it was required to be done under Rule 9 of Appendix IV to the Appellate Side Rules. However, this is least of the troubles of the writ petitioner.
From the above prayers it shall be clear that the writ petitioner is seeking payment of amounts alleged to be payable to it as outstanding service bills from the respondent Bharat Sanchar Nigam Limited. At paragraph 9 of the writ petition, the writ petitioner has averred as follows:
"9. That your petitioner states that it has never received any warning letter and/or reminder letter regarding non deposition of GST from any concerned Finance Department of Central Government till today. Rather the respondent authorities in the names of those Govt. Authorities have been threatening the petitioner saying that unless statutory dues are paid within time, entire pending service bills would be withheld. I crave leave to refer copy of the relevant letters at the time of hearing."
This has not been affirmed as either being true to the knowledge of the petitioner or based on any information derived from the records which are readily believed to be true. They, therefore, are of the category of submissions which are alleged without taking responsibility. Therefore, it cannot be said that the petitioner has taken responsibility for the allegations that it never received any warning letter or reminder letter regarding non-deposition of goods and services tax from any concerned department of the Government till today. On the other hand, there is one letter disclosed in the affidavit in opposition filed by Mr. Gupta's client at page 18 thereof being part of Annexure R/3 which is dated August 25, 2018 and which purports to have been signed by the sole proprietor/proprietress herself and is addressed to the Deputy General Manager of the first respondent. I am extracting a portion of that letter:
"We have given the commitments to clear up the GST due of Rs. 32 Lac by 5th September, 2018 by submission of Return*."
The part which has been written after the asterisk is written by hand by the petitioner. It reads as follows: -
"In case of our failure to clear the due of GST upto March 18 BSNL/JDV will be at liberty to stop payment of our bills and may take suitable action as will be deemed fit. Company will take co (illegible) for disbursement of wages of Oct-18 in time."
This has not been disclosed in the writ petition. There is no averment which can be looked into which specifically deals with such letter dated August 25, 2018. I would have thought that even if the document itself was not quoted, the most elementary rule of pleading was to require the effect of the document to have been stated in the body of the writ petition with a reference to the date of the document on the basis of principles as underlie Order VI Rule 9 of the Code of Civil Procedure as to how a document is to be pleaded. It is not that the document was not material in nature. That document contained an endorsement by hand that the respondent No. 1 may stop payment of the bills of the petitioner if the petitioner fails to clear the goods and services tax dues and there was a further commitment of the petitioner that it would disburse the wages for October, 2018 in due time. Therefore, non-disclosure of this document and of its effect amount to approaching the Court with unclean hands.
While Mr. Chaudhury, learned counsel for the petitioner has strenuously contended that the question of payment of goods and services tax (In short 'GST') being service tax would not arise until the outstanding service bills were paid by the Bharat Sanchar Nigam Limited (In short 'BSNL') and that there is no warning letter on record from any authority to show that the petitioner is in default of its liability of payment of GST that is not the question which the petitioner is being asked. The question is not whether there has been failure on the part of the petitioner to clear its GST dues triggering the action by the respondent authorities. The question is whether the petitioner coming to a writ Court could have suppressed such a material document as the letter dated August 25, 2018 and the portion hand written therein by the petitioner instead of disclosing it and its effect, and averring that the contingency mentioned therein had not yet occurred. Yet the petitioner has only admitted its existence in the affidavit in reply after being confronted in the affidavit-in-reply with the said document as something suppressed by her.
For the sake of completeness, I quote the allegations contained in the affidavit in reply relating to the said document at page 3 of the reply.
"It is very much evident from the letter dated 25.08.2018 that petitioner was forced to give an undertaking in writing. Petitioner was totally misled and misguided before giving a false verbal assurance that all pending bills would be released very soon. Petitioner had no other alternative but to accept their offer which was later found to be nothing but a trap. The Handwritten portion of the letter clearly proves that same was written as dictated DGM (NW-OP)/JDV."
This itself shows that the stand of the writ petitioner is that it was forced to give an undertaking in writing being misguided and misled. This was the first time that it ever disclosed the said letter dated August 25, 2018 and that too in the affidavit-in-reply which does not give the respondents any chance of dealing with it though fresh allegations of the same being elicited by force on the basis of false verbal assurance has been made by the petitioner by such affidavit-in-reply. However, if a person is misled and misguided and forced into writing something which was a letter had been found to be nothing but a trap as alleged by the petitioner in the affidavit in reply, I do not think it would be reasonable for the writ petitioner to suppress it at the time of filing the writ petition. The writ petition was the first recourse to this Court. Instead he waited until the matter was disclosed by the respondents to make a disclosure of the same. This itself shows that the writ petitioner had tried to suppress material facts from this Court and having failed in the said attempt to mislead the Court and suppress the material facts tried to explain the said conduct. It is a case of too little too late.
Thus, even though the writ petitioner had a good case, I cannot hold in her favour. The respondent No. 1 has admitted the claim of the petitioner seeking payment of admitted amounts under bills to the tune of sixty-three lakhs eighty-two thousand, eight hundred and fifteen rupees, to which there is no real objection by way of the document at page 22 of the writ petition being Annexure P/4 whereby it has been admitted by the respondent No. 1 while providing information under the Right to Information Act, 2005 that all the bills have been released and sent to the concerned paying authority. Today Mr. Gupta, learned counsel appearing on behalf of the respondent No. 1 has said on the basis of written instructions dated September 11, 2019 that its paying authority referred to in Annexure P/4 is Accounts Officer is the Central Settlement Cell/Headquarters, Calcutta Telephones, BSNL, 8 Hare Street Calcutta - 700 001.
Yet I am afraid that despite the aforesaid, while exercising jurisdiction under Article 226 of the Constitution of India, I cannot come to the aid of such a writ petitioner who thinks it to be a merry sport to suppress material facts from the writ Court in a hope to get a favourable order. The tragedy is that the document could have been explained away without requirement of suppression had the writ petitioner properly advised. In this regard I am fortified by the decision in the case of K.D. Sharma-v-Steel Authority of India Limited and Others reported in (2008) 1 SCC 481. In it, the Hon'ble Supreme Court was pleased to hold as follows: -
"28. The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play `hide and seek' or to `pick and choose' the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the 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.
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."
In that case, the Hon'ble Supreme Court was pleased to dismiss the case with exemplary costs. I most respectfully follow this decision and dismiss this with exemplary costs, so that in the future both the litigant and her learned advocate are discouraged from resorting to suppression of material facts as advocacy. Keeping in mind the amount of money that the petitioner alleges it is entitled to, I think costs of 500 GMs ought to be sufficient deterrent for the purpose. So ordered.
This order shall not prevent the writ petitioner from approaching the Court afresh after full disclosure of all the documents on the basis of the admitted position that the bills have been cleared and have been sent to the paying officer whose name has been recorded in this order according to the written instructions of September 11, 2019 produced by Mr. Gupta, learned counsel for the respondents which is kept on record.
Photostat certified copy of the order, if applied for, be given to the parties on compliance of requisite formalities.