Friday, 1 July 2016

Whether Fast track Court Judges appointed on Ad hoc basis have right for regular promotion on the basis of such appointment?

From the aforesaid two authorities, it is quite clear
that the appointments in respect of Fast Track Courts are
ad hoc in nature and no right is to accrue to such recruits
promoted/posted on ad hoc basis from the lower judiciary

for the regular promotion on the basis of such appointment.
It has been categorically stated that FTC Judges were
appointed under a separate set of rules than the rules
governing the regular appointment in the State Higher
Judicial Services.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6105 OF 2013
V. Venkata Prasad & Ors. ... Appellants
 VERSUS
High Court of A.P. & Ors. ... Respondents
Dated:June 29, 2016
Dipak Misra, J.
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When appellate court should allow production of additional evidence as per O41 R27 of CPC?

This takes us to the next question in relation to
the application filed under Order 41 Rule 27 of the
Code. In our considered view, the High Court
committed another error when it rejected the
application filed by the appellant under Order 41 Rule
27 of the Code. This application, in our opinion,
should have been allowed for more than one reason.
34) First, there was no one to oppose the application.
In other words, the respondents were neither served
with the notice of appeal and nor served with the
application and hence they did not oppose the
application. Second, the appellant averred in the
application as to why they could not file the additional
evidence earlier in civil suit and why there was delay
on their part in filing such evidence at the appellate

stage. Third, the averments in the application were
supported with an affidavit, which remained
un-rebutted. Fourth, the application also contained
necessary averment as to why the additional evidence
was necessary to decide the real controversy involved
in appeal. Fifth, the additional evidence being in the
nature of public documents and pertained to suit land,
the same should have been taken on record and lastly,
the appellant being the Union of India was entitled to
legitimately claim more indulgence in such procedural
matters due to their peculiar set up and way of
working.
35) It was for all these reasons, we are of the view
that the application filed by the appellant under Order
41 Rule 27 of the Code deserved to be allowed and is
accordingly allowed by permitting the appellant to file
additional evidence.
36) Learned counsel for the respondents, however,
contended that the additional evidence is not relevant

for deciding the appeal/suit. He also urged that the
appellant has not pleaded any cause as required under
Order 41 Rule 27 to file such evidence at the appellate
stage. We are not impressed by this submission in the
light of the reasons given supra. This submission is
accordingly rejected.
37) Order 41 Rule 27 of the Code is a provision which
enables the party to file additional evidence at the first
and second appellate stage. If the party to appeal is
able to satisfy the appellate Court that there is
justifiable reason for not filing such evidence at the
trial stage and that the additional evidence is relevant
and material for deciding the rights of the parties
which are the subject matter of the lis, the Court
should allow the party to file such additional evidence.
After all, the Court has to do substantial justice to the
parties. Merely because the Court allowed one party to
file additional evidence in appeal would not by itself
mean that the Court has also decided the entire case

in his favour and accepted such evidence. Indeed once
the additional evidence is allowed to be taken on
record, the appellate Court is under obligation to give
opportunity to the other side to file additional evidence
by way of rebuttal.

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 920 OF 2008
Union of India Appellant(s)
VERSUS
K.V. Lakshman & Ors. Respondent(s)

Abhay Manohar Sapre, J.
Dated:June 29, 2016.
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Thursday, 30 June 2016

When contractor in government contract should not be disqualified?

So far as clause (j) of the detailed notice inviting E-tender No.01/KMDA/MAT/CE/2013-2014 dated 10.5.2013 emanating from the office of the Chief Engineer is concerned, it seems to us that contrary to the conclusion in the impugned judgment, the clause is not an essential element or ingredient or concomitant of the subject NIT. In the course of hearing, the Income Tax Return has been filed by the Appellant-company and scrutinized by us. For the Assessment Year 2011-2012, the gross income of the Appellant- company was Rs.15,34,05,627, although, for the succeeding Assessment Year 2012-2013, the income tax was NIL, but substantial tax had been deposited. We think that the Income Tax Return would have assumed the character of an essential term if one of the qualifications was either the gross income or the net income on which tax was attracted.
In many cases this is a salutary stipulation, since it is indicative of the commercial standing and reliability of the tendering entity. This feature being absent, we think that the filing of the latest Income Tax Return was a collateral term, and accordingly the Tendering Authority ought to have brought this discrepancy to the notice of the Appellant- company and if even thereafter no rectification had been carried out, the position may have been appreciably different. It has been asserted on behalf of the Appellant-company, and not denied by the learned counsel for the Respondent-Authority, that the financial bid of the Appellant-company is substantially lower than that of the others, and, therefore, pecuniarily preferable.
14. In this analysis, we find that the Appeal is well founded and is allowed. The impugned judgment is accordingly set aside. The disqualification of the Appellant-company on the ground of it having failed to submit its latest Income Tax Return along with its bid is not sufficient reason for disregarding its offer/bid. 
Rashmi Metaliks Ltd. & ANR. Vs. Kolkata Metropolitan Development Authority & Ors.
[Civil Appeal No. 6772 of 2013]
VIKRAMAJIT SEN, J.
Dated:11-9-2013
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When court can interfere in case of grant of government contract?

 This court is conscious that its conclusions have the effect of
invalidating the award of contract to some of the respondents. There is no
doubt that a court, in its judicial review jurisdiction, exercises a limited role.
That does not include the wisdom of the decision of the Government or
executive agency which awards the contract. This court recollects the
decision of the Supreme Court in Air India Ltd. v. Cochin International
Airport Ltd & Ors. (2000) 2 SCC 617, in this context, that:
"7………………The award of a contract, whether it is by a private party or
by a public body or the State, is essentially a commercial transaction. In
arriving at a commercial decision considerations which are of paramount are
commercial considerations. The state can choose its own method to arrive at
a decision. It can fix its own terms of invitation to tender and that is not open
to judicial scrutiny. It can enter into negotiations before finally deciding to
accept one of the offers made to it. Price need not always be the sole
criterion for awarding a contract. It is free to grant any relaxation, for bona
fide reasons, if the tender conditions permit such a relaxation. It may not
accept the offer even though it happens to be the highest or the lowest. But
the State, its corporations, instrumentalities and agencies are bound to
adhere to the norms, standards and procedures laid down by them and cannot
depart from them arbitrarily. Though that decision is not amenable to
judicial review, the court can examine the decision-making process and
interfere if it is found vitiated by mala fides, unreasonableness and
arbitrariness. The State, its corporations, instrumentalities and agencies have
the public duty to be fair to all concerned. Even when some defect is found
in the decision- making process the court must exercise its discretionary
power under Article 226 with great caution and should exercise it only in
furtherance of public interest and not merely on the making out of a legal
point. The court should always keep the larger public interest in mind in
order to decide whether its intervention is called for or not. Only when it
comes to a conclusion that overwhelming public interest requires
interference, the court should intervene.” 
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : TENDER MATTER

Decided on: 27.09.2013
W.P.(C)4056/2013 & C.M. APPL. 9559/2013
MI2C SECURITY & FACILITIES PRIVATE LIMITED ..... 
versus
GOVERNMENT OF NCT & ORS. ...
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE NAJMI WAZIRI
MR. JUSTICE S. RAVINDRA BHAT

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