Ghanshyam Dass Vs State - Court Judgment

Excerpt:
absence of any express stipulation in the instructions to bidders / what in the absence of any mention of the consequence of rejection of the offer? / whether a condition is essential or collateral could be ascertained by reference to the consequence of non-compliance thereto -- in the absence of any express stipulation in the instructions to bidders or the special terms and conditions or in the prescribed price schedule prohibiting the tenderer from quoting a discount on the price offered by him, the high court could not have come to the conclusion that by offering a discount of 1% on the quoted price ion exchange has committed a breach of the essential terms of the tender notification or the tender format.[para 16] in the absence of any mention of the consequence of rejection of the offer for not indicating the total excise duty amount in rupees included in the price of plants and equipments in the tender documents, the high court could not have held that ion exchange had committed breach of an essential term or condition of the tender notification or the tender format. for this conclusion, we are again supported by the decision inkanhaiya lal agrawal v. union of india and others (supra) in which this court relying on g.j. fernandez v. state of karnataka [(1990) 2 scc 488[para 18] "whether a condition is essential or collateral could be ascertained by reference to the consequence of non-compliance thereto. if non- fulfillment of the requirement results in rejection of the tender, then it would be an essential part of the tender otherwise it is only a collateral term." hence, if on the recommendation of the tender committee, the accepting authority did not find the deviation from clause (ii) of the note by ion exchange very material and has accepted the offer of ion exchange, the division bench of the high court could not have held that ion exchange committed a breach of an essential term by not mentioning the excise duty amount in rupees in its offer.[para 18] by reversing the decision of the accepting authority of the irctc, the division bench of the high court, in our considered opinion, acted as an appellate court and exceeded its power of judicial review in a matter relating to award of contract contrary to the law laid down by this court in the leading case of tata cellular (supra). held: in the result, we set aside the impugned judgment and order of the division bench of the high court and allow the appeals of irctc and ion exchange and dismiss the appeal of doshion. there shall be no order as to costs.[para 19,20]1. whether reporters of local papers may be allowed to see the judgment?2. to be referred to the reporter or not?3. whether judgment should be reported in digest?1. by the present petition, the petitioner has assailed an order dated 23 rd june, 2010, passed by learned additional sessions judge, partly allowing the revision petition of the petitioner.2. the brief facts necessary for the purpose of deciding this petition are that in fir no. 360 of 1996, registered at police station mehrauli under sections 420/34 ipc read with section 120-b ipc, police filed a charge-sheet on completion of investigation. a supplementary charge-sheet was also filed by the police. in the charge-sheet police had mentioned names of several persons in column no. 2, who were bonafide subsequent purchasers of the plots of land. police could find material for trial only against accused ran singh, satbir singh, dharam singh and karam singh.3. vide order dated 5th may, 2001, the learned m.m. directed for issuance of summons to the accused persons sent for trial. it seems that the ministerial staff of the court of learned m.m. issued summons to each and every person whose name was mentioned in the charge-sheet including those whose names were in column no. 2. vide order dated 4th february, 2008, the court of m.m. observed that his predecessor had ordered for summoning ran singh, satbir singh, karam singh and dharam singh, who were the persons allegedly involved in unauthorized possession of the land, without consent or permission of lawful owner and who further sold the land by forging documents. no offence was made out against those persons who purchased the plots of land from these persons as they were the victims and they had no hand in forgery or cheating and that is why their names were mentioned in column no. 2, but the ministerial wrongfully issued summons of the persons mentioned in column no. 2, without any directions from the court of m.m. thus he discharged all those persons and ordered that process issued against the persons named in column no. 2 stood withdrawn. he also discussed whether charge was made out against those persons or not and after discussion found that no charge was made out against karamvir singh and satbir singh and hence karamvir singh and satbir singh were also discharged.4. against this order of mm, a revision petition was preferred by the complainant and the learned asj found that the order of learned mm dropping proceeding against persons mentioned in column no. 2 wrongfully summoned by ministerial staff was correct. however, the asj did not agree that satbir singh and karamvir singh were not liable to be tried as no charge was made out. he after considering the material on record came to conclusion that satbir singh and karamvir singh were also liable to be charged for appropriate offences as made out from the charge-sheet.5. the counsel for the petitioner submits that the persons who were subsequent purchasers should also have been summoned as accused since they purchased the property knowing fully well that the value of the property was much higher but it was being sold to them at lesser rate and the lesser rate was being quoted only because the persons selling the land were not the actual owners.6. the court cannot raise such presumptions while considering charge. charge has to be considered on the basis of facts as appearing on record. it is undisputed fact that the persons mentioned in column no. 2 were those persons against whom police had not been able to find any evidence of their conniving with the other accused persons and they were bonafide purchasers of the plots. the trial court and the court of asj were, therefore, right in holding that subsequent purchasers of plots were not liable to be prosecuted as no offence was found of their involvement in either cheating or conspiracy. i am fully agreement with the view taken by the trial court and the court of learned asj. i find no reason to entertain this petition. the petition is hereby dismissed.

Judgment:
1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

1. By the present petition, the petitioner has assailed an order dated 23 rd June, 2010, passed by learned Additional Sessions Judge, partly allowing the Revision Petition of the petitioner.

2. The brief facts necessary for the purpose of deciding this petition are that in FIR No. 360 of 1996, registered at Police Station Mehrauli under Sections 420/34 IPC read with Section 120-B IPC, police filed a charge-sheet on completion of investigation. A supplementary charge-sheet was also filed by the police. In the charge-sheet police had mentioned names of several persons in Column No. 2, who were bonafide subsequent purchasers of the plots of land. Police could find material for trial only against accused Ran Singh, Satbir Singh, Dharam Singh and Karam Singh.

3. Vide order dated 5th May, 2001, the learned M.M. directed for issuance of summons to the accused persons sent for trial. It seems that the ministerial staff of the Court of learned M.M. issued summons to each and every person whose name was mentioned in the charge-sheet including those whose names were in Column No. 2. Vide order dated 4th February, 2008, the Court of M.M. observed that his predecessor had ordered for summoning Ran Singh, Satbir Singh, Karam Singh and Dharam Singh, who were the persons allegedly involved in unauthorized possession of the land, without consent or permission of lawful owner and who further sold the land by forging documents. No offence was made out against those persons who purchased the plots of land from these persons as they were the victims and they had no hand in forgery or cheating and that is why their names were mentioned in Column No. 2, but the ministerial wrongfully issued summons of the persons mentioned in Column No. 2, without any directions from the Court of M.M. Thus he discharged all those persons and ordered that process issued against the persons named in Column No. 2 stood withdrawn. He also discussed whether charge was made out against those persons or not and after discussion found that no charge was made out against Karamvir Singh and Satbir Singh and hence Karamvir Singh and Satbir Singh were also discharged.

4. Against this order of MM, a Revision Petition was preferred by the complainant and the learned ASJ found that the order of learned MM dropping proceeding against persons mentioned in Column No. 2 wrongfully summoned by ministerial staff was correct. However, the ASJ did not agree that Satbir Singh and Karamvir Singh were not liable to be tried as no charge was made out. He after considering the material on record came to conclusion that Satbir Singh and Karamvir Singh were also liable to be charged for appropriate offences as made out from the charge-sheet.

5. The counsel for the petitioner submits that the persons who were subsequent purchasers should also have been summoned as accused since they purchased the property knowing fully well that the value of the property was much higher but it was being sold to them at lesser rate and the lesser rate was being quoted only because the persons selling the land were not the actual owners.

6. The court cannot raise such presumptions while considering charge. Charge has to be considered on the basis of facts as appearing on record. It is undisputed fact that the persons mentioned in Column No. 2 were those persons against whom police had not been able to find any evidence of their conniving with the other accused persons and they were bonafide purchasers of the plots. The Trial Court and the Court of ASJ were, therefore, right in holding that subsequent purchasers of plots were not liable to be prosecuted as no offence was found of their involvement in either cheating or conspiracy. I am fully agreement with the view taken by the Trial Court and the Court of learned ASJ. I find no reason to entertain this petition. The petition is hereby dismissed.