JUDGMENT Hon’ble Ashok Bhushan, J.—Heard Sri Ravi Kant, learned Senior Advocate, assisted by Sri Tarun Agrawal, Advocate for the petitioner and Sri Anil Tiwari, Advocate appearing for respondent No. 1. 2. By this writ petition, the petitioner through its Managing Director, has prayed for quashing the agreement dated 26th June, 2008 and the rectified agreement dated 10th March, 2011 entered between respondent Nos. 1 and 2 for implementation of project for disposal of Municipal solid waste and setting up a mechanical compost plant at Razau Paraspur site, Nagar Nigam, Bareilly. By subsequent agreement dated 10th March, 2011 certain amendments were made in the earlier agreement. The petitioner has also prayed for quashing the licence dated 10th March, 2011 issued by the Nagar Nigam, Bareilly in favour of respondent No. 2 to carry on the project of systematic treatment, processing and disposal of Municipal solid waste. 3. Brief facts of the case as disclosed in the writ petition are; the Nagar Nigam, Bareilly has prepared a blue print of solid waste management project within the limits of Nagar Nigam, Bareilly. It is stated that project lies close by two air fields maintained by the Army and Air Force. A letter dated 25th January, 2006 issued by the Lieutenant Colonel of the Army Headquarters, Bareilly Cantonment has been referred to in which it has been stating that construction of solid waste treatment plant shall pose a serious hazard to flight safety, the matter be taken up with the District Magistrate on priority basis and the development work be stopped at the proposed site. It is stated that Municipal Corporation is obliged to take steps for solid waste management in accordance with the statutory rules, namely, Municipal Solid Wastes (Management and Handling) Rules, 2000. It is stated in the writ petition that project site is located at village Rajau Paraspur which is skirted by a number of leading educational institutions and further the master plan has not been amended and no ‘’no development zone’ has been created so far. The dumping of municipal solid wastes, biomedical wastes and non-degradable wastes, hazardous wastes etc. shall pose a serious threat to the health and well being. Reference of the interim order of this Court dated 17th February, 2005 passed in Writ Petition No. 7043 of 2005 has also been made by which order this Court directed for shifting of the site. The dumping of municipal solid wastes, biomedical wastes and non-degradable wastes, hazardous wastes etc. shall pose a serious threat to the health and well being. Reference of the interim order of this Court dated 17th February, 2005 passed in Writ Petition No. 7043 of 2005 has also been made by which order this Court directed for shifting of the site. It is stated in paragraph 19 of the writ petition that respondents have published an advertisement in news daily “Dainik Jagaran” dated 25th January, 2008 (published from Delhi) and “Hindustan Times” dated 28th January, 2008 (Delhi Edition) providing 31st January, 2008 as last date of submitting tender. It is stated that newspaper “Dainik Jagaran” dated 25th January, 2008 has scanty circulation in the State and the publication in “Hindustan Times” was as late as on 28th January, 2008 which gave a very short time for any interested agency to obtain the tender form. All details were also not provided regarding sanctioned money and the estimated cost. It is stated in paragraph 21 of the writ petition that only two firms submitted their expression of interest till 11th February, 2008 and the last date for submitting the tender was 31st January, 2008. The tenders were to be opened on 15th February, 2008 but since only two proposals were received it was decided to publish fresh notice in nationally circulated newspapers. Fresh notice was published in Hindi News Daily “Dainik Jagaran” (Delhi Edition) and “Times of India” (Delhi Edition) on 7th March, 2008. It is stated that no fresh tender was received in pursuance of the subsequent publication and the Corporation chose to consider two tenders submitted earlier. In paragraph 31 of the writ petition it is submitted that publications were placed in some obscure corner of the news daily and the petitioner could not know about it, hence it could not submit its tender to the aforesaid publication. It is pleaded in paragraph 32 of the writ petition that petitioner fully complies with the parameters as prescribed in the news publication. It has further been stated that when the Corporation decided to reject the tender in response to the first publication, it could not have resuscitated the aforesaid tenders when no fresh tender was received in response to second publication. The Corporation entered into an agreement on 26th June, 2008 in favour of respondent No. 2. It has further been stated that when the Corporation decided to reject the tender in response to the first publication, it could not have resuscitated the aforesaid tenders when no fresh tender was received in response to second publication. The Corporation entered into an agreement on 26th June, 2008 in favour of respondent No. 2. There was certain dispute regarding condition as suggested by respondent No. 2 and after detail correspondences a rectification agreement was executed on 10th March, 2011. On the aforesaid pleadings, the writ petition has been filed with the prayers as noticed above. 4. Sri Anil Tiwari, learned counsel appearing for respondent No. 1 at the very out set, has raised a preliminary objection to the entertainability of the writ petition. It is stated by Sri Tiwari that the petitioner has not come in this writ petition with clean hand. It is submitted that several material facts have been concealed in the writ petition deliberately by the petitioner. It is submitted that, in fact, the project of solid waste management was advertised by the Nagar Nigam on BOOT (Built Operate Own & Transfer) basis inviting expression of interest by notice dated 7th November, 2006. In response to the aforesaid notice three firms submitted their expression of interest including the petitioner. The request for proposal received from all the three firms were forwarded to the State Government. The State Government directed for power point presentation by all the three firms. One M/s Holo Fix Private India Limited made his power point presentation before the State Government. Another firm, namely, M/s Panipat B.K. Recycling and Transport Company Limited, New Delhi did not make any power presentation and the petitioner on 6th November, 2007 made his power presentation at Nagar Nigam, Bareilly in which Mayor, Director, Jal Nigam, officers of the Air Force, Nagar Ayukta, Bareilly and other officers were present. Although the presentation of the petitioner was not satisfactory, the Jal Nigam has recommended for accepting the request of proposal of the petitioner. The Government of India in its meetings held on 17th December, 2007 and 26th December, 2007 enquired about the detail of progress of the project. Thereafter the papers submitted by the petitioner were thoroughly examined and it was found that experience certificates which were submitted by the petitioner, were forged. The Government of India in its meetings held on 17th December, 2007 and 26th December, 2007 enquired about the detail of progress of the project. Thereafter the papers submitted by the petitioner were thoroughly examined and it was found that experience certificates which were submitted by the petitioner, were forged. The experience certificates and other supporting documents submitted by the petitioner were thoroughly examined by enquiring from the authorities concerned and it was found that petitioner’s certificates were forged and it had no experience of work. In the documents submitted by the petitioner there were certain interpolation also and then a decision was taken to reject the request of proposal of the petitioner and other two firms and further decision was taken to get expression of interest from technical experts and thereafter fresh tender notice be notified. The said decision was taken on 28th December, 2007 and thereafter fresh publication was made in the newspapers “Dainik Jagaran” on 25th January, 2008 and in “Hindustan Times” on 28th January, 2008. 5. Learned counsel for respondent No. 1 submits that petitioner in the writ petition has concealed all materials facts including the fact that petitioner had earlier submitted his request for proposal in response to the earlier notice dated 7th November, 2006 and the petitioner’s proposal was thoroughly examined including his power point presentation and the same was rejected having found the petitioner annexing several forged documents and experience certificates and after rejecting all the offers received, fresh advertisement was issued. It is submitted that there had been several attempts for stopping the project of solid waste management including filing of writ petition by one educational institution, namely, Invertis Institute of Management which was ultimately dismissed by this Court. One petition was also got filed through some Corporators which was also dismissed. Sri Tiwari has also filed a short counter-affidavit raising preliminary objection regarding maintainability of the writ petition on the ground of concealment of material facts and participation of the petitioner in the project in question in the year 2006. Copy of the order dated 28th December, 2007 giving all details of earlier proceedings and participation of the petitioner has also been brought on the record as Annexure-1 to the short counter-affidavit. 6. Copy of the order dated 28th December, 2007 giving all details of earlier proceedings and participation of the petitioner has also been brought on the record as Annexure-1 to the short counter-affidavit. 6. A rejoinder-affidavit has been filed by the petitioner in which participation in the project by the petitioner and submission of request for proposal in the year 2006 has not been denied. It has further been stated in the rejoinder-affidavit that order dated 28th December, 2007 which has been brought on the record alongwith the counter-affidavit was not communicated to the petitioner. 7. We have heard learned counsel for the parties and have perused the record. 8. In the writ petition, the petitioner has raised various grounds against very project alleging that the project in question is not in accordance with the Municipal Solid Wastes (Management and Handling) Rules, 2000. The objection raised by Army authorities by letter dated 25th January, 2006 has also been referred to. However, in the subsequent part of the writ petition, the petitioner has pleaded that publication of the advertisements in the newspapers “Dainik Jagaran” and “Times of India” were at some obscure places and the petitioner could not know about the said publication. It is further submitted that in pursuance of the advertisement dated 25th January, 2008 the last date for submitting the tender was 31st January, 2008 which was such a short time that it would not be possible for interested agency to obtain the tender form and after completing all the formalities given in the advertisement submit the same. There is no pleading in the writ petition that petitioner could not know about the advertisement published on 25th January, 2008. However, with regard to second publication which was made in the newspapers “Daink Jagaran” and “Times of India” on 7th March, 2008 it has been stated that petitioner could not know about the same, hence he could not submit its tender. 9. The preliminary objection, which has been raised by learned counsel for the respondent No. 1 is that writ petition is liable to be dismissed on the ground of concealment of facts since the petitioner deliberately concealed his participation in pursuance of the earlier advertisement which was published on 7th November, 2006 and rejection of his claim necessitating second advertisement which was published on 25th January, 2008. It is further submitted that project was advertised after all objections including the objection by Army authorities were removed and consent was given by the Ministry of Defence. The petitioner itself having participated in pursuance of the advertisement dated 7th November, 2006, raising various objection in the writ petition regarding very viability of the project is nothing but concealment of material facts. 10. Sri Ravi Kant, learned counsel for the petitioner, replying the preliminary objection of the counsel for respondent No. 2, has submitted that although it is true that petitioner did not disclose in the writ petition regarding his earlier participation in the project as published on 7th November, 2006 but the said participation is not a material fact which was necessary to be disclosed. He submits that present writ petition has been filed on a different cause of action and non mentioning of earlier participation by the petitioner is not a material fact. In support of his submission, learned counsel for the petitioner has placed reliance on judgments of the Apex Court in the cases of S.J.S. Business Enterprises (P) Limited v. State of Bihar, (2004)7 SCC 166 , Arunima Baruah v. Union of India and others, 2007 AIR SCW 4609 and Venture Global Engineering v. Satyam Computer Services Ltd. and another, AIR 2010 SC 3371 . 11. Before we come to the facts of the present case to determine as to whether facts which have been concealed by the petitioner, were material facts, it is necessary to have a look into the cases relied by the counsel for the petitioner. In S.J.S. Business Enterprises’ case (supra) a suit was filed by the appellant on 4th April, 2002 through one of its Directors praying for injunction supported by an application for interim relief praying for restraining sale of the hotel against which loan was taken by the appellant from Bihar State Credit and Investment Corporation Limited. On the interim relief application notices were issued by the Sub-Judge on 8th April, 2002 to the Corporation. On 9th April, 2002 a writ petition was filed in the High Court by the appellant through another Director in which an interim order was granted by the High Court. The suit was withdrawn by the appellant after two weeks. On the interim relief application notices were issued by the Sub-Judge on 8th April, 2002 to the Corporation. On 9th April, 2002 a writ petition was filed in the High Court by the appellant through another Director in which an interim order was granted by the High Court. The suit was withdrawn by the appellant after two weeks. When the writ petition came for hearing, the same was dismissed by the learned Single Judge on the ground that appellant was dis-entitled to any relief under extra ordinary jurisdiction of writ Court since it has concealed the factum of filing the suit. The Division Bench also dismissed the appeal against which appellant filed special leave to appeal in the Apex Court. The Apex Court laid down in the said judgment that as a general rule suppression of material facts by a litigant disqualifies such litigant from obtaining any relief, however, suppression must be of a material fact which would have affect on the merits of the case. Following was laid down by the Apex Court in paragraphs 13, 14 and 15 of the said judgment, which are as under : “13. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the Court, whatever view the Court may have taken. Thus when the liability to Income Tax was questioned by an applicant on the ground of her non- residence, the fact that she had purchased and was maintaining a house in the country was held to be a material fact the suppression of which disentitled her from the relief claimed. Thus when the liability to Income Tax was questioned by an applicant on the ground of her non- residence, the fact that she had purchased and was maintaining a house in the country was held to be a material fact the suppression of which disentitled her from the relief claimed. Again when in earlier proceedings before this Court, the appellant had undertaken that it would not carry on the manufacture of liquor at its distillery and the proceedings before this Court were concluded on that basis, a subsequent writ petition for renewal of the licence to manufacture liquor at the same distillery before the High Court was held to have been initiated for oblique and ulterior purposes and the interim order passed by the High Court in such subsequent application was set aside by this Court. Similarly, a challenge to an order fixing the price was rejected because the petitioners had suppressed the fact that an agreement had been entered into between the petitioners and the Government relating to the fixation of price and that the impugned order had been replaced by another order. 14. Assuming that the explanation given by the appellant that the suit had been filed by one of the Directors of the Company without the knowledge of the Director who almost simultaneously approached the High Court under Article 226 is unbelievable, the question still remains whether the filing of the suit can be said to be a fact material to the disposal of the writ petition on merits. We think not. The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a Court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226. But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If however a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the Court to entertain the writ petition. The Rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another Court. If however a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the Court to entertain the writ petition. The Rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another Court. But this Court has also held in C.B. Gosain Bhan v. State of Orissa, 14 STC 766 :1963 (2) SCR 879, that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief. This Court has also held that that when a party has already moved the High Court under Article 226 and failed to obtain relief and then moved an application under Article 32 before this Court for the same relief, normally the Court will not entertain the application under Article 32. But where in the parallel jurisdiction, the order is not a speaking one or the matter has been disposed of on some other ground, this Court has, in a suitable case, entertained the application under Article 32. Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 226. Therefore the fact that a suit had already been filed by the appellant was not such a fact the suppression of which could have affected the final disposal of the writ petition on merits. 15. In this case, admittedly the appellant has withdrawn the suit two weeks after the suit had been filed. In other words the appellant elected to pursue its remedies only under Article 226. The pleadings were also complete before the High Court. No doubt, the interim order which was passed by the High Court was obtained when the suit was pending. But by the time the writ petition was heard the suit had already been withdrawn a year earlier. In other words the appellant elected to pursue its remedies only under Article 226. The pleadings were also complete before the High Court. No doubt, the interim order which was passed by the High Court was obtained when the suit was pending. But by the time the writ petition was heard the suit had already been withdrawn a year earlier. Although the appellant could not, on the High Court’s reasoning, take advantage of the interim order, it was not correct in rejecting the writ petition itself when the suit had admittedly been withdrawn, especially when the matter was ripe for hearing and all the facts necessary for determining the writ petition on merits were before the Court, and when the Court was not of the view that the writ petition was otherwise not maintainable.” 12. Another judgment which has been relied by learned counsel for the petitioner is Arunima Baruah’s case (supra) which was also a case where the appellant challenging her termination of services has filed a suit in the District Court in which suit on the application for interim relief notices were issued but no interim order was passed. A writ petition was filed in the Delhi High Court on 10th April, 2001 in which writ petition the fact of pendency of the suit was not disclosed, however, before the writ petition came for preliminary hearing the application was filed by the appellant for withdrawal of the suit which suit was subsequently permitted to be withdrawn on 30th April, 2001. The writ petition was dismissed by learned Single Judge on 29th November, 2002 opining that in view of concealment of fact regarding filing of suit, the writ petitioner is not entitled for any relief. The Apex Court in the said case laid down following in paragraphs 11 and 12, which are as under : “11. The court’s jurisdiction to determine the lis between the parties, therefore, may be viewed from the human rights concept of access to justice. The same, however, would not mean that the court will have no jurisdiction to deny equitable relief when the complainant does not approach the court with a pair of clean hands but to what extent such relief should be denied is the question. 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. 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. The third judgment relied by learned counsel for the petitioner is in Venture Global Engineering’s case (supra) where an application in proceeding under Section 34 of the Arbitration and Conciliation Act, 1996 for additional pleading was rejected. The revision was also dismissed by the High Court. Thereafter special leave petition was filed before the Apex Court. The Apex Court in the said judgment laid down following in paragraphs 57 to 60, which are as under : “57. This Court also holds that the facts concealed must have a causative link. And if the concealed facts, disclosed after the passing of the award, have a causative link with the facts constituting or inducing the award, such facts are relevant in a setting aside proceeding and award may be set aside as affected or induced by fraud. 58. The question in this case, is therefore one of relevance of the materials which the appellant wants to bring on record by way of amendment in its plea for setting aside the award. 59. Whether the award will be set aside or not is a different question and that has to be decided by the appropriate Court. In this appeal, this Court is concerned only with the question whether by allowing the amendment, as prayed for by the appellant, the Court will allow material facts to be brought on record in the pending setting aside proceeding. 60. In this appeal, this Court is concerned only with the question whether by allowing the amendment, as prayed for by the appellant, the Court will allow material facts to be brought on record in the pending setting aside proceeding. 60. Judging the case from this angle, this Court is of the opinion that in the interest of justice and considering the fairness of procedure, the Court should allow the appellant to bring those materials on record as those materials are not wholly irrelevant or they may have a bearing on the appellant’s plea for setting aside the award.” 14. From the law laid down in S.J.S. Business Enterprises’ case (supra) and in Arunima Baruah’s case (supra), it is clear that suppression of material fact would dis-entitle a litigant to obtain discretionary relief from writ Court exercising jurisdiction under Article 226 of the Constitution but the fact concealed must be a material fact which would mean material for the purposes of determination of the lis i.e. where the same was material for grant or denial of the relief. 15. The question in Venture Global Engineering’s case (supra) was as to whether award could be set-aside on the basis of the fact which was sought to be introduced by amendment. In above context the Apex Court laid down that if the facts disclosed after passing of the award have a causative link with the facts constituting or inducing the award, such facts are relevant in setting aside proceeding and award may be set-aside as affected or induced by fraud. The above case is on different set of facts and in the said case the Apex Court was examining the question of amendment of pleading in proceeding under Section 34 of the Arbitration and Conciliation Act, 1996. 16. Now coming to the facts of the present case, the petitioner has come up in this writ petition with a complaint that he could not submit his tender in response to the advertisement by which applications were invited for setting up a mechanical compost plant on BOOT basis. In the writ petition although the petitioner has come with the case that subsequent advertisement in the newspapers “Dainik Jagaran” and “Times of India” could not be read by the petitioner whereas there is no denial that he was aware of the first advertisement. In the writ petition although the petitioner has come with the case that subsequent advertisement in the newspapers “Dainik Jagaran” and “Times of India” could not be read by the petitioner whereas there is no denial that he was aware of the first advertisement. One fact mentioned in the writ petition (paragraph 19) that advertisement was published on 25th January, 2008 and the last date for submitting the tender was 31st January, 2008 is factually incorrect. Copy of the advertisement dated 25th January, 2008 (Annexure-4 to the writ petition) clearly provides that last date for submission of the tender was 11th February, 2008 whereas 31st January, 2011 was the last date for issuing of request for proposal (RFP) document. The petitioner thus is complaining in the writ petition his grievance that he could not get an opportunity to submit his tender in response to two advertisements issued for the project. 17. From the facts which have come on the record and the specific pleading in the short counter-affidavit, it is clear that in response to the advertisement issued in the year 2006 the petitioner has offered, participated, his tender was examined and after participation of the petitioner the same was rejected and thereafter fresh notices were issued on 25th January, 2008. The fact that petitioner had submitted tender for the same project and his tender after thorough examination and participation of the petitioner including his power point presentation was rejected, cannot be irrelevant fact when the petitioner is coming in the writ petition complaining that it could not submit tender in pursuance of the advertisement. The petitioner in the writ petition also stated that the project is not viable and is not in accordance with the Municipal Solid Wastes (Management and Handling) Rules, 2000. The fact that petitioner tried to obtain the same project and submitted his tender which could not be accepted and was rejected is a relevant fact in the context when the petitioner is coming in the writ petition raising various objection regarding viability of the project. 18. Learned counsel for the petitioner submits that copy of the order which has been filed alongwith the short counter-affidavit by which tender of the petitioner and others have been rejected on 28th December, 2007 has not been communicated to the petitioner. 18. Learned counsel for the petitioner submits that copy of the order which has been filed alongwith the short counter-affidavit by which tender of the petitioner and others have been rejected on 28th December, 2007 has not been communicated to the petitioner. Even if it is assumed that the petitioner was not communicated the order dated 28th December, 2007, the fact cannot be lost sight that the petitioner had submitted tender and contract was not awarded to it and when fresh advertisement was issued advertising the same project the fact that petitioner has earlier offered pursuant to advertisement dated 7th November, 2006 cannot be said to be not a material fact. In event the petitioner was not aware of the order dated 28.12.2007, the petitioner could have attacked the very advertisement on the ground that his tender earlier submitted in response to the notice dated 7th November, 2006 has not been decided whereas in the writ petition the petitioner deliberately did not mention his earlier tender which was submitted in response to the notice dated 7th November, 2006. We are fully satisfied that the petitioner has concealed the material facts in the writ petition and has not come to this Court with clean hands. 19. The preliminary objection raised by the counsel for respondent No. 1 has substance and the petitioner is not entitled for any relief in discretionary jurisdiction of this Court. The writ petition is dismissed. —————