Whether court can allow amendment of pleading even if there inadvertence or infraction of rules of procedure?

It is well settled that rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure. The Court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting malafide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2366 of 2010

Decided On: 14.05.2015

 Mahila Ramkali Devi and Ors. Vs.  Nandram and Ors.

Hon'ble Judges/Coram:

M. Yusuf Eqbal and Amitava Roy, JJ.

Citation: 2015(4) ALLMR 426 SC

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Whether Mala fides can be inferred from undisputed facts?

It is well settled that use of power for a purpose
different from the one for which power is conferred is
colourable exercise of power. Statutory and public power is
trust and the authority on whom such power is conferred is
accountable for its exercise. Fraud on power voids the action
of the authority .State of Punjab v. Gurdial Singh (1980) 2 SCC 417, Greater Noida Industrial Development Authority v. Devendra Kumar (2011) 12 SCC 375, para 39
 Mala fides can be inferred from
undisputed facts even without naming a particular officer and
even without positive evidence.  State of Punjab v. Ramjilal (1970) 3 SCC 602, pr 9-10; Express Newspapers (P) Ltd. V. UOI
xx(1986) 1 SCC 133, pr. 119-120
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5072 OF 2016
(ARISING OUT OF SLP (Civil) NO.5455 OF 2014)
UDDAR GAGAN PROPERIES LTD.
V
SANT SINGH & ORS
Citation: (2016) 11 SCC378

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Whether publication of identity of victim without malafide intention amounts to offence under POCSO Act?

  The subject matter of this writ petition is revolving

round Ext.P15 order passed by the Commission for Protection

of Child Rights.      The question to be decided is whether it

suffers from any manner of illegality or arbitrariness enabling

this Court to interfere with the same.            The paramount

contention advanced by learned counsel for the petitioner is

that the petitioner has made the post in the face book which

contained the name of the child with bonafide and good

intentions. The intention of the petitioner was to book the real

culprit, who is a teacher in the school in question. It is also

stated that the name of the child is contained in Exts.P7 and

P8 and P9, which were received by the petitioner under the RTI

Act, and therefore mere posting of the same will not amount to

the offence under Sec.23 of the POCSO Act.             Therefore,

essence of the issue is dependent on Sec.23 of POCSO Act,

which reads as follows:

              "23. Procedure for media.--(1) No person shall

      make any report or present comments on any child

      from any form of media or studio or photographic

      facilities  without  having  complete    and authentic

      information, which may have the effect of lowering his

      reputation or infringing upon his privacy.



           (2) No reports in any media shall disclose, the

     identity of a child including his name, address,

     photograph, family details, school, neighbourhood or

     any other particulars which may lead to disclosure of

     identity of the child:

           Provided that for reasons to be recorded in

     writing, the Special Court, competent to try the case

     under the Act, may permit such disclosure, if in its

     opinion such disclosure is in the interest of the child.

           (3) The publisher or owner of the media or studio

     or photographic facilities shall be jointly and severally

     liable for the acts and omissions of his employee.

           (4) Any person who contravenes the provisions of

     sub-section (1) or sub-section (2) shall be liable to be

     punished with imprisonment of either description for a

     period of which shall not be less than six months but

     which may extend to one year or with fine or with

     both".

     10. On an evaluation of Sec.23, it is unequivocally clear,

a prohibition is made under sub-section (1) thereto, by which,

no person shall make any report or comments on any child

from any form of media or studio or photographic facilities

without having complete and authentic information, which may

have the effect of lowering his reputation or infringing upon his

privacy.   Further, as per sub-section (2), no reports in any

media shall disclose the identity of a child including his name,



address,   photograph,     family   details,  school    etc.  etc.

Therefore, the intention under Sec.23 is very clear that the

victim child shall not be exposed to any sort of publication so

as to affect her future and damn her career. In my considered

opinion, in order to constitute an offence under sub-section (4)

of Sec.23, no mens rea, culpability, and malafide or illegal

intention is required. Mere publication of the details of the

victim child will attract the offence under sub-section (4).

Therefore, the thrust of the contention advanced by the

petitioner that the petitioner did not have any malafide

intention to expose the child, cannot be sustained under law.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                             PRESENT:

                        MR. JUSTICE SHAJI P.CHALY

                         11TH DAY OF NOVEMBER 2016

                           WP(C).No. 31378 of 2016 (V)
                             

                     SUDHEESH KUMAR.S.R.,
               

V

            STATE OF KERALA,
                     Citation: 2017 CRLJ 443 kerala

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Whether allegation that annual confidential report was written with malafide is tenable?

 It is apparent that in this case the applicant has been given an opportunity of hearing and principles of natural justice have been followed and after considering his defence the impugned orders have been passed rejecting his request to improve the gradings. The applicant has made various allegations but surprisingly no one has been impleaded by name as a party so as to alleged or prove any mala fide intentions on the part of the named authorities.
It is settled legal proposition that in case allegations of mala fide are made against any person he is to be impleaded by name, otherwise the allegations cannot be considered as held in the cases of (Dr. J.N. Banavalikar v. Municipal Corporation of Delhi and Anr., MANU/SC/0083/1996 : AIR 1996 SC 326; State of Bihar and Anr. v. P.P. Sharma, I.A.S. and Anr., MANU/SC/0542/1992 : 1992 Suppl (1) SCC 222; I.K. Mishra v. Union of India and Ors., MANU/SC/0927/1997 : (1997) 6 SCC 228; and All India State Bank Officers Federation and Ors. v. Union of India and Ors., MANU/SC/1377/1997 : JT 1996 (8) SC 550.

In the case of Federation of Officers Association v. Union of India and Ors., MANU/SC/0231/2003 : 2003 AIR SCW 1764, the Apex Court has held that the allegation of mala fide has to be specifically made and the person against whom such allegations are made has to be impleaded and in his absence such allegations cannot be taken into consideration.

 The allegations made by the applicant in this case against Reporting Officer and Reviewing Authority are of sweeping in nature and do not require any investigation on the issue for the reason that same are not specific and fall short of making any inquiry in this regard. The issue of "malus animus" was considered in the case of Tara Chand Khatri v. Municipal Corporation of Delhi and Ors., MANU/SC/0549/1976 : AIR 1977 SC 567, wherein the Hon'ble Supreme Court has held that the High Court would be justified in refusing to carry on investigation into the allegation of mala fides, if necessary particulars of the charge making out a prime facie case are not given in the writ petition and burden of establishing mala fide lies very heavily on the person who alleges it and there must be sufficient material to establish malus animus.

IN THE CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH

O.A. No. 060/00296/2014

Decided On: 26.05.2016

Jaswinder Singh Vs. Union of India

Hon'ble Judges/Coram:Sanjeev Kaushik, Member (J)

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Leading judgment on government contract and tender proces

In Reliance Airport Developers (P) Ltd. vs. Airports
Authority of India & Ors., (2006) 10 SCC 1, this Court held
that while judicial review cannot be denied in contractual
matters or matters in which the Government exercises its
contractual powers, such review is intended to prevent
arbitrariness and must be exercised in larger public interest.

17) In Jagdish Mandal vs. State of Orissa and Others,
(2007) 14 SCC 517, the following conclusion is relevant:
“22. Judicial review of administrative action is intended to
prevent arbitrariness, irrationality, unreasonableness, bias
and mala fides. Its purpose is to check whether choice or
decision is made “lawfully” and not to check whether choice
or decision is “sound”. When the power of judicial review is
invoked in matters relating to tenders or award of contracts,
certain special features should be borne in mind. A contract
is a commercial transaction. Evaluating tenders and
awarding contracts are essentially commercial functions.
Principles of equity and natural justice stay at a distance. If
the decision relating to award of contract is bona fide and is
in public interest, courts will not, in exercise of power of
judicial review, interfere even if a procedural aberration or
error in assessment or prejudice to a tenderer, is made out.
The power of judicial review will not be permitted to be
invoked to protect private interest at the cost of public
interest, or to decide contractual disputes. The tenderer or
contractor with a grievance can always seek damages in a
civil court. Attempts by unsuccessful tenderers with
imaginary grievances, wounded pride and business rivalry,
to make mountains out of molehills of some
technical/procedural violation or some prejudice to self, and
persuade courts to interfere by exercising power of judicial
review, should be resisted. Such interferences, either interim
or final, may hold up public works for years, or delay relief
and succour to thousands and millions and may increase
the project cost manifold. Therefore, a court before
interfering in tender or contractual matters in exercise of
power of judicial review, should pose to itself the following
questions:
(i) Whether the process adopted or decision made by the
authority is mala fide or intended to favour someone;
OR
Whether the process adopted or decision made is so
arbitrary and irrational that the court can say: “the decision
is such that no responsible authority acting reasonably and
in accordance with relevant law could have reached”;

(ii) Whether public interest is affected.
If the answers are in the negative, there should be no
interference under Article 226. Cases involving blacklisting
or imposition of penal consequences on a
tenderer/contractor or distribution of State largesse
(allotment of sites/shops, grant of licences, dealerships and
franchises) stand on a different footing as they may require a
higher degree of fairness in action.”
18) The same principles have been reiterated in a recent
decision of this Court in Tejas Constructions &
Infrastructure Pvt. Ltd. vs. Municipal Council, Sendhwa &
Anr., (2012) 6 SCC 464.
19) From the above decisions, the following principles
emerge:
(a) the basic requirement of Article 14 is fairness in action
by the State, and non-arbitrariness in essence and substance
is the heartbeat of fair play. These actions are amenable to
the judicial review only to the extent that the State must act
validly for a discernible reason and not whimsically for any
ulterior purpose. If the State acts within the bounds of
reasonableness, it would be legitimate to take into
consideration the national priorities;
(b) fixation of a value of the tender is entirely within the
purview of the executive and courts hardly have any role to

play in this process except for striking down such action of the
executive as is proved to be arbitrary or unreasonable. If the
Government acts in conformity with certain healthy standards
and norms such as awarding of contracts by inviting tenders,
in those circumstances, the interference by Courts is very
limited;
(c) In the matter of formulating conditions of a tender
document and awarding a contract, greater latitude is
required to be conceded to the State authorities unless the
action of tendering authority is found to be malicious and a
misuse of its statutory powers, interference by Courts is not
warranted;
(d) Certain preconditions or qualifications for tenders have
to be laid down to ensure that the contractor has the capacity
and the resources to successfully execute the work; and
(e) If the State or its instrumentalities act reasonably, fairly
and in public interest in awarding contract, here again,
interference by Court is very restrictive since no person can
claim fundamental right to carry on business with the
Government.

20) Therefore, a Court before interfering in tender or
contractual matters, in exercise of power of judicial review,
should pose to itself the following questions:
(i) Whether the process adopted or decision made by the
authority is mala fide or intended to favour someone; or
whether the process adopted or decision made is so arbitrary
and irrational that the court can say: “the decision is such
that no responsible authority acting reasonably and in
accordance with relevant law could have reached”; and (ii)
Whether the public interest is affected. If the answers to the
above questions are in negative, then there should be no
interference under Article 226.

REPORTABLE

 IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL NO. 5898 OF 2012
(Arising out of SLP (C) No. 25802 of 2008
M/s Michigan Rubber (India) Ltd. .... Appellant (s)
Versus
The State of Karnataka & Ors. .... Respondent(s)
 Dated:AUGUST 17, 2012.

 P. Sathasivam, J.

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