P.K. Jaiswal, J.:— This review petition has been filed by the petitioner (respondent No. 3 in the writ petition) - Municipal Council, Neemuch, for reviewing the order dated 31/08/2017, passed in W.P. No. 12204/2010 on the ground that powers for granting an approval are vested in the State Government and after receipt of letter dated 21/12/2009 by the Revenue Commissioner, Ujjain wrote a letter on 3/03/2010 to the Government of Madhya Pradesh for action/decision to be taken at the State Government level. Thereafter, the State Government by its letter dated 18/05/2010 again intimated the Revenue Commissioner, Ujjain whereby clarifying and authorizing the Revenue Commissioner, Ujjain to examine the matter in accordance with Section 109 of the M.P. Municipalities Act, 1961 and the Rules of 1996. It was also clarified that if the Revenue Commissioner is not agreed with the proposal of the petitioner, the Revenue Commissioner shall be entitled to reject the same and shall also be entitled to direct the petitioner to take action afresh, Along with the review application a letter (Annexure-A/2) dated 18/05/20210, Annexure-A/3 dated 13/09/2012 and Annexure-A/4 which was not part of the record of the writ petition have been filed and relying on the aforesaid letters the ground has been taken that there is error apparent on the face of the record and prays for review of the order.
2. A preliminary objection was raised by the learned Senior Counsel for the respondent No. 1 and submitted that the Municipal Council, Neemuch who was respondent No. 3 in the writ petition accepted the offer of the respondent No. 1(writ petitioner) and has issued a letter dated 27/09/2008, informing the respondent No. 1 that the tenders submitted by the respondent No. 1 was accepted and it was further directed to deposit the amount of Rs. 1,45,25,050/-, 25% of the bid amount, within a period of seven days.
3. The respondent No. 1 in compliance to letter dated 27/09/2018 has deposited 25% of the bid amount, amounting to Rs. 1,45,25,050/- vide Cheque bearing No. 007804, dated 1/10/2008 drawn at Axis Bank Ltd., Neemuch. Thereafter, the petitioner (respondent No. 3 therein), Neemuch 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. The relevant part of the Resolution is quoted in para - 6 of the order passed by the learned writ Court in W.P. No. 12204/2010.
4. It is further submitted that 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 respondent No. 1 vide his communication dated 21/12/2009 and authorised the respondent No. 3 to hand over the possession of the land to the respondent No. 1 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 approval and sanction granted by the State Government has been quoted in para - 7 of the writ order.
5. He has also drawn our attention to the reply filed by the Municipal Council. Para 1 to 4 of the reply to the writ petition filed by the Municipal Council on 28/02/2011 reads as under:—
1. The present petition is filed against the order dated 3-7-10 passed by the Revenue Commissioner of Ujjain Division whereby, the resolution of the answering respondent for allotment of land admeasurig 163176 sq. ft. situated in Scheme no. 1A at Neemuch for commercial even residential purpose has been rejected.
2. It is submitted that the answering respondent called tender for allotment of the aforesaid plot by advertisement. The terms of allotment/NIT were duly prescribed(copy of same is annexed as Annexure P/3).
That the clause No. 4 of the said terms specifically prescribe that after the proposal/resolution of the Municipality the same shall be forwarded to the State Government and only after approval of the State the allotment shall be made. Further Clause No. 21 also gives absolute power to the respondents for cancellation of the NIT even without assigning any reasons. The said terms of NIT were duly accepted by the petitioner.
3. That in the process four companies/firm participated in the tender process out of which the petitioner was the highest bidder, thus accordingly the resolution was passed and forwarded to the State Government for its approval.
4. The State Government authorized the respondent No. 2 for the purpose of examining and scrutinizing the proposal/resolution and after the same it was found that the offers which were remind pursuant to the NIT were not of competitive nature and the NIT was also not adequately published, thus no satisfactory offer was received. Thus, the resolution passed by the answering respondent was rejected and matter has been remanded back for inviting fresh tenders.
6. The Division Bench of this Court after appreciating the stand taken by the Municipal Council as well as by the State Government allowed the writ petition (W.P.) No. 12204/2010) on 31.08.2017 by issuing the following directions in para 6 to 17 which reads as under:—
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 Municipalties 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 decision-maker'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 or 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 sub-section (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, ie., 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.
7. Learned Senior Counsel for the respondent No. 1 has submitted that the Municipal Council has accepted the bid after finalizing the proposal, which was sent for the approval. The State Government after examining the matter came to the conclusion that there was no flaw and authorized the Revenue Commissioner to examine the matter and issue appropriate order therein. He further submitted that as per M.P. Municipalities Act, 1961 and Rules made thereunder, there is a requirement to publish the bid/NIT in two newspapers. The procedure as prescribed has been followed and adopted by the Municipal Council, the order passed by the Revenue Commissioner was rightly set aside. The approval for the sale of immovable property was granted by the State Government on the proposal made by the Municipal Council and later on the same was duly approved by the Collector. Now at later stage, there is no requirement to again grant approval, only the property has to be transferred by the Municipal Council in view of the order passed by the State Government. He lastly submitted that the learned writ Court considered each and every aspect of the matter while passing the impugned order.
8. The letter which has been filed along with the review petition was not brought to the notice of the Court nor in their reply the aforesaid stand was taken, the proposal has already been approved by the State Government, the Municipal Council is only required to act and hand over the possession in view of the order passed by the State Government. No fresh approval is required in the matter. The State Government has already granted the approval, the Revenue Commissioner was only authorized to hand over the possession on behalf of the State Government. There is no error apparent on the face of the record and prayed for dismissal of the review petition.
9. It is well settled that no review is permissible on the ground that the Court has proceeded on wrong preposition of law or on the ground that the decision is erroneous on merits. The review is permissible only for correction of mistake apparent on the face of the record but not to substitute views. We cannot review the order impugned merely because the interpretation of a document has not been made in the proper perspective. Mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae, the petitioner seeking review has to show that such additional matter or evidence was not within his knowledge and even after exercising of due diligence, the same could not be produced.
10. From the reply as well as in the main application, no such ground was taken nor it was the case of the Municipal Council that after exercising of due diligence, the letters on which they are placing reliance were could not be produced in writ proceedings.
11. For the above mentioned reasons, we are of the view that the review application has no merit and is, accordingly, dismissed but without any order as to costs.