P.K. Jaiswal, J.:— By this writ petition under Article 226 of the Constitution of India, the petitioner is praying for issuance of writ of certiorari to quash the order dated 3-7-2013 (Annexure P/9), passed by the respondent No. 2, Revenue Commissioner, Ujjain Division Ujjain, whereby the resolution of respondent No. 3-Municipal Council, Neemuch, for allotment of land admeasuring area 163176 sq. ft. situated in the Scheme No. 1A (Commercial Cum Residential Use) at Neemuch, has been cancelled, on the ground that the offers received were not competitive and the NIT was published only in two Hindi News papers having circulation at Indore.
2. Fact of the case are that the respondent No. 3-Municipal Council, Neemuch, has invited tenders for allotment of land on lease ad-measuring 163176 sq. ft., for a period of 30 years. This land is situated in Scheme No. 1-A, Neemuch, for commercial and residential use. The Municipal Council has published this notice inviting tender in the four news papers viz. (Nai Diniya, Dainik Bhaskar, Free Press and Dashpur Express) on 23-6-2008 and 25-6-2008, which has vide circulation at Neemuch. These news papers are having circulation all over India. The petitioner, which is a registered partnership firm has submitted the tender and has deposited an earnest money of Rs. 47.00 lakhs and has submitted tender offering Rs. 5,81,00,106/-, for taking the land on lease.
3. Apart from the petitioner, number of firms and companies have also submitted the tenders. The respondent No. 3 in presence of representatives of all intending bidders opened their bids and the petitioner-firm was found to be the highest bidder, as the petitioner-firm was ready to take the land on lease for Rs. 5,81,00,000/-.
4. The respondent No. 3 accepted the offer of the petitioner and has issued a letter dated 27-9-2008, informing the petitioner-firm that the tender submitted by the petitioner was accepted and it was further directed that the amount of Rs. 1,45,25,050/-, 25% of the bid amount, within a period of seven days.
5. The petitioner-firm in compliance to letter dated 27-9-2008 has deposited 25% of the bid amount, amounting to? 1,45,25,050/- vide Cheque bearing No. 007804, dated 1-10-2008 drawn at Axis Bank Ltd., Neemuch.
6. Thereafter, the respondent No. 3 sought an opinion from Collector, Neemuch and the Resolution was sent for his approval. The Collector, Neemuch has approved the Resolution on 23-12-2008 passed by the respondent No. 3 and has held that the owner of the land was Municipal Council, Neemuch. Relevant part of the Resolution reads as under:—
7. After approval from the Collector, Neemuch the Municipal Council, Neemuch sent the matter for the approval of the State Government (Urban Administration and Development Department) under section 109 of the Municipalities Act, 1961 and Rule 7 of M.P. Municipalities (Transfer of Immovable Property), Rules, 1996. After enquiring the matter, the Principal Secretary approved and sanctioned the bid of the petitioner vide his communication dated 21-12-2009 and authorized the respondent No. 2 to hand over the possession of the land to the petitioner firm and has directed him to only examine the “land use” of the land so that it has to be as per the Development Plan 2011. Relevant part of the order of the State Government reads as under:—
8. The petitioner after receipt of letter dated 21-12-2009 has approached the respondent No. 2 for taking the possession of the said land but respondent No. 2 has not taken any action in this regard. The respondent No. 2 instead of handing over the possession of the land in question to the petitioner firm, has passed an order dated 3-7-2010 and stated that as the publication of the bid was only made in two newspapers of Indore and the bid invited were not competitive, therefore, set aside the proposal. This order has been passed without issuing any show cause notice to the petitioner and without granting any opportunity of hearing to the petitioner. As per resolution passed by the Municipal Council and the order passed by the Collector and the State Government, it is not in dispute that number of persons participated in the tender process and their bids were opened in presence of their representatives and none of them have raised any objection that the bid was not competitive and no wide circulation has been made.
9. From the letter (Annexure P/8) the Principal Secretary of the State Government has only directed and authorized the respondent No. 2 to as certain the market value as per guideline and handover the possession of the said land to the petitioner firm. But the respondent No. 2 exceeded his jurisdiction and passed the order dated 3-7-2010. Admittedly, the land in question was in the ownership of the Municipal Council, Neemuch. The Municipal Council, Neemuch after complying the provisions of section 109 of M.P. Municipalities Act, 1961 and Rule 7 of M.P. Municipalities (Transfer of Immovable Property), Rules, 1996 accepted the tender of the petitioner.
10. Learned Senior Counsel has submitted that as per M.P. Municipalities (Transfer of Immovable Property) Rules, 1996 no immovable property which yields or is capable of yielding an income shall be transferred by sale, or lease or otherwise conveyed except to the highest bidder at a public auction or offer in a sealed cover. In the case in hand offer was invited in four newspapers i.e. “Dainik Bhaskar, Naiduniya, Free Press and Daspur Express” which has wide circulation and on the basis of the aforesaid invitation the Municipal Council received four tenders and all the four tenders were opened in presence of their representatives and, therefore, the order of the Commissioner Ujjain Division, Ujjain that bid invited were not competitive or the publication of bidding was made only in two newspapers is incorrect and prayed for quashment of order dated 3-7-2010.
11. The stand of the respondent Nos. 1 and 2 is that as per the provisions of sub-section (3)(ii) of section 109 of the Municipalities Act, 1961 the approval of the State Government is necessary if the transfer of rights of any immovable property exceeding 50,000/- is to be effected. The Rule 7 of the M.P. Municipalities (Transfer of Immovable Property) Rules, 1996 also postulates approval from the State Government. The N.I.T. was widely published in Dainik Bhaskar, Naiduniya newspapers and Free Press, which has wide circulation in Indore Division as well as in Neemuch as a result of which there was adequate and proper competition in the process. The State Government vide letter dated 21-12-2009 authorized the Commissioner, Ujjain Division, Ujjain to allot the land on lease in favour of the petitioner.
12. The respondent No. 2 is a ‘State’ within the meaning of Article 12 of the Constitution of India. Its conduct in all fields including a contract is expected to be fair and reasonable. It was not supposed to act arbitrarily, capriciously or whimsically.
13. It is trite that if an action on the part of the State is violative the equality clause contained in Article 14 of the Constitution of India, a writ petition would be maintainable even in the contractual field. A distinction indisputably must be made between a matter which is at the threshold of a contract and a breach of contract; whereas in the former the Court's scrutiny would be more intrusive, in the latter the Court may not ordinarily exercise its discretionary jurisdiction of judicial review, unless it is found to be violative of Article 14 of the Constitution. While exercising contractual powers also, the Government bodies may be subjected to judicial review in order to prevent arbitrariness or favouritism on its part. Indisputably, inherent limitations exist, but it would not be correct to opine that under no circumstances a writ will lie only because it involves a contractual matter.
14. It is well settled that while exercising the power of judicial review the Court is more concerned with the decision making process than the merit of the decision itself. In doing so, it is often argued by the defender of an impugned decision that the Court is not competent to exercise its power when there are serious disputed questions of facts; when the decision of the Tribunal or the decision of the fact-finding body or the arbitrator is given finality by the statute which governs a given situation or which, by nature of the activity the decisionmaker's opinion on facts is final. But while examining and scrutinizing the decision-making process it becomes inevitable to also appreciate the facts of a given case as otherwise the decision cannot be tested under the grounds of illegality, irrationality or procedural impropriety. How far the Court of judicial review can reappreciate the findings of facts depends on the ground of judicial review. For example, if a decision is challenged as irrational, it would be well-nigh impossible to record a finding whether a decision is rational or irrational without first evaluating the facts of the case and coming to a plausible conclusion and then testing the decision of the authority on the touchstone of the tests laid down by the Court with special reference to a given case. This position is well settled in the Indian administrative law. Therefore, to a limited extent of scrutinizing the decision-making process, it is always open to the Court to review the evaluation of facts by the decision-maker.
15. Rule 3 and 7 of the M.P. Municipalities (Transfer of Immovable Property) Rules, 1996 reads as under:—
3. No immovable property which yields or is capable of yielding an income shall be transferred by sale, or lease dr otherwise conveyed except to the highest bidder at a public auction or offer in a sealed cover:
Provided that if the Council is of the opinion that it is not desirable to hold a public auction or to invite offers in sealed covers for such transfer, the Council may, with the previous sanction of the State Government, effect such transfer without public auction or inviting offers in sealed covers:
Provided further that the Council may, for reasons to be recorded in writing, transfer such immovable property to a bidder other than the highest bidder, with the previous sanction of the State Government:
Provided also that in any such transfer by lease, a reasonable premium shall be payable at the time of granting lease and annual rent shall also be payable during the whole term of the lease.
16. Clause (ii) of sub-section (3) of section 109 of M.P. Municipalities Act, 1961 reads as under:—
(3) The sanction of the President-in-Council or of the Council under subsection (2) may be given either generally for any class of cases or specially in any particular case:
Provided that—
(i) no property vesting in the Council in trust shall be leased, sold or otherwise conveyed in a manner that is likely to prejudicially effect the purpose of the trust subject to which such property is held;
(ii) no land exceeding fifty thousand rupees in value shall be sold or otherwise conveyed without the previous sanction of the State Government and every sale or other conveyance of property vesting in the Council shall be deemed to be subject to the conditions and limitations imposed by this Act or by any other enactment for the time being in force.”
17. From the perusal of the aforesaid, it is clear that tender has be invited in one or more local news-papers and shall be widely made known in the matter as determined by the Council. In the present case, the tender was invited in four news-papers which have wide circulation over an area where the property is situated and, therefore, the action of the respondent No. 2 is contrary to the Rules of 1996. From the facts as narrated above, the Municipal Council after accepting the bid of the petitioner passed a Resolution No. 218 and referred the same to the Collector, Neemuch, for approval. The Collector Neemuch has approved the Resolution on 23-12-2008 and has held that the owner of the land was Municipal Council and recommended to the Government of M.P. for its approval under section 109 of the M.P. Municipalities Act, 1916. The State Government vide communication dated 21-12-2009, granted approval under section 109 of the M.P. Municipalities Act, 1961 and Rule 7 of M.P. Municipalities (Transfer of Immovable Property) Rules, 1996 and authorized the respondent No. 2-Revenue Commissioner to transfer the same to the petitioner. By the aforesaid authorization the respondent No. 2 has a limited power to examine the matter as per terms of approval granted by the State Government. He has to see that the grant is as per section 109 of M.P. Municipalities Act, 1961 and Rule 7 of M.P. Municipalities (Transfer of Immovable Property) Rules, 1996 or not and he has to only examine the ‘land use of the land’, so as it is to be as per Neemuch Development Plan - 2011. Admittedly, the land use of the land is as per the Neemuch Development Plan - 2011. Thus, he being the delegated authority of the State Government is bound to handover the possession of the land to the petitioner-firm. The action of the respondent No. 3 is not bona fide nor is in public interest. The decision made by the respondent No. 2 is arbitrary and irrational and no responsible authority acting responsible in accordance with law, could have passed such an order when his role was limited and he has to examine the matter in the light of order passed by the State Government on 21-12-2009. The petitioner has paid Rs. 47,00,000/- as earnest money and thereafter, after accepting his bid, he has deposited 25% of the bid amount, i.e., 1,45,25,050/-. The action of the respondent No. 2 is not in public interest. We, therefore, quash the impugned order dated 3-7-2010 and direct the respondent No. 3 to grant approval on behalf of the State Government in terms of letter dated 21-12-2009 of the Government of Madhya Pradesh.
18. W.P. No. 12204/2010 is allowed without any order as to costs.
Petition allowed.