Vyapari Sangh Vs. State of M.P. and ors. - Court Judgment

Excerpt:
contract - legality of tender - petitioner was association engaged in business of construction - respondent corporation invited tender for construction of shops - tender was awarded to respondent no. 3 - petitioner aggrieved by said order of respondent - hence, present petition - held, advertisement related to tender did not published in all copies of news paper - further offer of petitioner was double of offer of respondent no. 3 - therefore acceptance of offer of respondent was neither in public interest nor in consonance with commercial principle - hence, order of award of tender accordingly set aside - invitation of tender be made in accordance with due procedure - petition allowed - indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - whether a local body can abandon its sense of socio-economic purpose in entirety, abdicate its sacrosanct duty pertaining to commercial gain and pave the path of colourable originality of a xerox machine and act like a hypocrite even in sleep to propagate it has acted in good faith in a transparent manner when it has actually dealt with its largess diminishing all public element and giving it if not for a song but for slightly more than pinch of snuff? choudhary, learned counsel for the corporation, countering the aforesaid submission of the corporation, countering the aforesaid submission of the learned counsel for the petitioner, contended that there had been due publicity but the petitioner maintained golden silence only to wake up like a. phoenix after everything was over to imbibe life into a dead body which is well nigh impossible in any realm. it is relevant to state that the learned counsel for the municipal corporation as well as the promoter very fairly conceded before this court that no construction has taken place. chouksey that the petitioner known about the publication he would have come with a much better offer. in the meantime respondents 1 and 2 shall not create any third party interest in respect of constructed shops or in respect of shops which is under constructions as well as in respect of the vacant land. rajendra singh kadyan (2000) 6 scc 698 :(air 2000 sc 2513) a three judge bench of the apex court in paragraph 29 has expressed thus :29..it is a well known principle of administrative law that when relevant considerations have been taken note of and irrelevant aspects have been eschewed from consideration and that no relevant aspect has been ignored and the administrative decisions have nexus with the facts on record, the same cannot be attacked on merits. it is well settled that there can be 'malice in law'.existence of such 'malice in law' in part of the critical apparatus of a particular action in administrative law. indeed 'malice in law' is part of the dimension of the rule of relevance and reason as well as the rule of fair play in action. one would require multilayered blindfold to reject the appeal of the appellant on any tenous ground so that the respondent may enjoy and aggrandize his unjust enrichment. and had the offer inviting tender been published in those newspapers a better offer could have come. 3 on the foundation that it was highest offer is neither in public interest nor is based on well advised and appropriate commercial principle.orderdipak misra, j.1. the centroidal issue and the kernel of controversy that arises for adjudication in this case compels one to put a singular and pointed question: whether a local body can abandon its sense of socio-economic purpose in entirety, abdicate its sacrosanct duty pertaining to commercial gain and pave the path of colourable originality of a xerox machine and act like a hypocrite even in sleep to propagate it has acted in good faith in a transparent manner when it has actually dealt with its largess diminishing all public element and giving it if not for a song but for slightly more than pinch of snuff? i have begun with the aforesaid protasis as the petitioner, a registered association of business of bakshikhana market, sagar invoking the extraordinary jurisdiction of this court under article 226 of the constitution of india has called in question the propriety and acceptability of the action taken by the municipal corporation, sagar vide resolution dated 25-8-2004 contained in annexure-p-8 and prayed for issue of a writ of certiorari for quashment of the same and also to lancet the agreement entered into between the municipal corporation, the respondent no. 2 herein, and the respondent no. 3, promoter/builder, in respect of the construction of market complex and pass such order/ orders as may be deemed fit and proper in the facts and circumstances of the case.2. the facts which are essential to be stated are that the petitioner-association has 185 members and said members are the permanent lessees of the respondent-corporation in respect of the plots/shops in their possession situated at bhakshikhana market, gujarati bazar, sagar, municipal corporation, sagar agreed to construct 183 shops over the existing bakshikhana market place. the entire project of construction of said complex /market place was allotted in favour of respondent no. 3, the promoter, for a sum of rs. 51,61,320/- without giving wide publicity to the said project. it is pleaded that the 'offer invitation notice' was published in only 20-25 copies of a newspaper, namely, 'dainik acharan' sagar on 26-4-2004 which was a shadow of compliance of publicity. according to the writ petitioner the notice was not published in all the copies of the newspaper in question as a result of which the petitioner-association was not aware of the said offer and all this was done in clandestine manner to show favour to the respondent no. 3. it is urged that by designing such a device the respondent-corporation intentionally restricted the offers from the general public and caused heavy financial loss to the corporation and denied the benefit to the petitioner-association who could have participated in the project. it is contended that vide proposal no. 4 of the meeting of the mayor-in-council the offer of the respondent no. 3 was considered for constructing a three storied market complex and the said proposal was forwarded to the government for final approval, though the amount obtainable could have been more than rupees one crore.3. according to the writ petitioner it was kept in total dark and the intention of the respondent-corporation could only be known on 26-7-2004. it is also put forth that when a public element was involved there could have been wide publicity in respect of the offer invitation notice and the same should not have been restricted to the limited copies of the newspaper which does not have much circulation.4. it is worthwhile to mention here that an application was filed to take the additional documents on record to show how another daily newspaper, namely, 'nai duniya' also did not publish in all its copies about the offer invitation notice.5. a return has been filed by the respondent no. 2 contending, inter alia, that the petitioner-association could have approached the state government before institution of the present petition and as the alternative remedy has not been exhausted the writ petition should not be entertained. it. has been asseverated that there are 183 temporary shops in bhakshikhana market and on several occasions in the past the shopkeepers of the market suffered huge loss on account of fire incident and there was a request by the shopkeepers for construction of the permanent shops. the representations of the shopkeepers were sent to the state government and there was recommendation by the state government for such construction. however, as the corporation had the financial problem it was unable to construct the market and, therefore, a decision was taken to get the market constructed through a promoter. this led to publication of a notice inviting tender from promoters. the paper publication made in 'dainik acharan' and 'nai duniya' newspapers have been brought on record. it is contended that the tender notice was published in 'dainik acharan' on 26-4-2004 and 'dainik nai duniya, bhopal', on the same date. the tender notice were also affixed on the notice board of the municipal corporation. in pursuance of the advertisement the respondents received three different tenders and as the offer of the! respondent no. 3 was the highest it was decided to accept the said tender. the stand of the petitioner that the tender notice was not published in all the copies of the newspaper has been controverted. the status of the members of the association as regards lease hold right is also disputed. the stand of the petitioner that the project of market complex would have fetched more then crore of rupees and has been given in lesser price in favour of respondent no. 3 is a wild allegation without any kind of base or foundation.5a. a counter-affidavit has been filed by the respondent no. 3 putting forth that the allegations made by the petitioner are without any justification as there has been due publication in the newspapers and the respondent no. 3 submitted his tender in accordance with the terms of the offer invitation notice along with a bank draft of rs. 1,00,000/-. it is urged that the tenders were opened by the commissioner of the municipal corporation and finding that his tender was the highest he was allotted the project in question. it is also put forth that on 22-7-2004 the respondent no. 2 asked the respondent no. 3 to deposit rs. 12,90,330/. it has also denied with regard to number of shops to be constructed. it is also put forth that the petitioner has put forth an exhorbitant figure of rupees one crore which is in the realm of imagination. it is asseverated that, the everything has been done in accordance with the procedure and in the absence of any kind of illegality or irregularity the acceptance of tender of respondent no. 3 cannot be found fault with.6. a reply has been filed by the respondent no. 4, acharan printers pvt. ltd., disputing the stand that only 20-25 copies of the newspaper contained the advertisement. it is set forth that the order of municipal corporation for publication of the advertisement was received by the press on 23-4-2004 and the advertisement was to be published on 26-4-2004 and by that time the printing of the newspaper which are meant to be circulated in the far flung areas had already commenced and the copies which were to be circulated within the city of sagar were printed late night and, therefore, the edition which was meant for circulation within the city carried the advertisement. it is put forth that more than 7000 copies of newspaper contained advertisement in question. a chart has been annexed wherein the areas and the number of the copies of the newspaper distributed in the said areas have been mentioned. all other allegations regarding any kind of nexus between the respondent no. 3 and 4 has been denied.7. i have heard mr. arvind chouksey, learned counsel for the petitioner, mr. s. k. yadav, learned government advocate for the state, mr. v. s. choudhary, learned counsel for the respondent no. 2, municipal corporation, mr. s. d. mishra, learned counsel for respondent no. 3 and mr. sharad verma, learned counsel for the respondent no. 4.8. mr. chouksey, learned counsel for the petitioner contended that on a perusal of the material brought on record it is clear and perceptible that there has been no wide publication of the advertisement and a chart shown in the counter-affidavit of the respondent no. 3 also would go a long way to exposit that there was partial publication in the city of sagar but not in any other place, ft is also contended by him that the municipal corporation in its return had made bald denials in respect of making any kind of positive affirmation with regard to its transparent function. it is his further submission that the petitioner-association had really not been aware of the proposal and there has been deliberate close circuit circulation of the publication of the advertisement as a consequence of which the municipal corporation has suffered heavy loss since such a project would have fetched more than rs. 1 crore but it has been given at half price. it is also propounded by the plea of alternative remedy is totally untenable in the case at hand as the litigation has a different scenario to project.9. mr. v. s. choudhary, learned counsel for the corporation, countering the aforesaid submission of the corporation, countering the aforesaid submission of the learned counsel for the petitioner, contended that there had been due publicity but the petitioner maintained golden silence only to wake up like a. phoenix after everything was over to imbibe life into a dead body which is well nigh impossible in any realm. pyramiding the aforesaid submission it is submitted by mr. choudhary that the petitioner watched from the distance and after the tender was finalised it approached the court which shows its mala fide intention and in the matter of this nature, the court should take the conduct of the petitioner into account and should not entertain the petition which is nothing but sound arid a fury signifying nothing. learned counsel further propounded that the petitioner had due knowledge about the whole thing but had woken up at a later stage for no apparent reason and a plea is take with regard to wide publicity which has no base or foundation and is bound to fonder.10. mr. s. d. mishra, learned counsel for the respondent no. 3 supported the submissions put forth by mr. choudhary and further added that the respondent had no nexus either with the corporation or with the newspaper but his offer being the highest than the others the same was accepted and, therefore, the action of the municipal corporation has to be regarded as impeccable.11. mr. sharad verma, learned counsel for the respondent no. 4 contended that the newspaper has performed its duty and the allegation that there has been publication in the limited copies is neither correct nor sound.12. mr. s. k. yadav, learned government advocate, in his turn, submitted that the question 6i public element has to be kept in view and the matter should be dealt with from the spectrum of public interest and financial gain of the corporation.13. before dwelling upon the rivalised submissions raised at the bar, it is appropriate to mention here that this court on 5-1-2005 restrained the respondent no. 1 from not allotting any shop without prior permission of this court. it is relevant to state that the learned counsel for the municipal corporation as well as the promoter very fairly conceded before this court that no construction has taken place. accepting the said submission the matter is to be dealt with.14. at this stage it is seemly to refer to the order dated 2-2-2005. on that date this court passed the following order :-'heard mr. arvind chouksey, learned counsel for the petitioner and the learned counsel for the respondents in part.in course of hearing mr. chouksey has submitted that the municipal corporation has extended the benefit in favour of the respondent no. 3 on acceptance of rs. 51,61,320'/-. it is submitted by the learned counsel for the petitioner that there has been limited publication as a consequence of which the' petitioner has been deprived from competing with others. as presently advised, i am not inclined to enter into such fact.it is submitted by mr. chouksey that the petitioner known about the publication he would have come with a much better offer. when a query was made whether he would be able to deposit rupees one crore before the registrar general of this court, after obtaining instructions the learned counsel submitted that he is prepared to deposit rupees one crore before the registrar general of this court by 22-2-2005. in view of the aforesaid submission made by mr. chouksey i am inclined to grant time to deposit the aforesaid amount. mr. chouksey has also submitted that if the amount is not deposited within the aforesaid period he would not press the writ petition. it would be open to the respondent no. 3 to raise the contentions as per law on next date of hearing. in the meantime respondents 1 and 2 shall not create any third party interest in respect of constructed shops or in respect of shops which is under constructions as well as in respect of the vacant land. no coervice action shall be taken to demolish any structure. this court hopes and trusts that the authorities shall behave with due propriety.'15. at this juncture, i think it appropriate to refer to certain decisions to appreciate the centripetal issue that arises for consideration in this case, namely, whether the decision making process of the municipal corporation is just sound and proper or there is any concavity in it, to invite its own destruction. in the case of state of u.p. v. dharmander prasad singh, air 1989 sc 997 a two judge bench of the apex court while dealing with the concept of judicial review in the matter of decision making process has expressed the view as under :- (para 28)'judicial review under article 226 cannot be converted into an appeal. judicial review is directed, not against the decision, but is confined to the examination issues raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting, to take into account of relevant factors or is so manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision, the judicial review of the decision making process includes examination as a matter of law, of the relevance of the factors'.16. in the case of union of india v. lt. gen. rajendra singh kadyan (2000) 6 scc 698 : (air 2000 sc 2513) a three judge bench of the apex court in paragraph 29 has expressed thus :-'29............it is a well known principle of administrative law that when relevant considerations have been taken note of and irrelevant aspects have been eschewed from consideration and that no relevant aspect has been ignored and the administrative decisions have nexus with the facts on record, the same cannot be attacked on merits. judicial review is permissible only to the extent of finding whether the process in reaching decision has been observed correctly and not the decision as such.........'17. in the case of w.b. state electricity board v. patel engineering co. ltd., (2001) 2 scc 451 : (air 2001 sc 682) emphasis was laid on protection of public interest and also on adherence to the rules.18. in the case of netai bag v. state of w.b., (2000) 8 scc 262 : (air 2000 sc 3313) in paragraphs 17 and 18 their lordships have expressed the view as under :-'17. it has been consistently held by this court that in a democracy governed by the rule of law, the executive government or any of its officers cannot be allowed to possess arbitrary powers over the interests of the individual. every action of the executive government must be in conformity with reason and should be free from arbitrariness. the government cannot be equated with an individual in the matter of selection of the recipient for its largesse. dealing with the limits on the exercise of executive authority in relation to rule of administrative justice, mr. justice frankfurter in vitarelli v. seaton (1959 (359) us 535) said :'an executive agency must be rigorously held to the standards by which it professes it action to be judged......accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed ..... this judicially evolved rule of administrative law is now firmly established and, if i may add, rightly so. he that takes the procedural sword shall perish with that sword.'18. this rule of administrative law was accepted as valid and applicable in india by this court in amarjit singh ahluwalia (dr.) v. state of punjab : (air 1975 sc 984), sukhdev singh v. bhagatram sardar singh raghuvanshi : (air 1975 sc 1331) and ramana dayaram shetty v. international airport authority of india. : (air 1979 sc 1628).19. in this context i may refer with profit to the decision rendered in the case of mahabir auto stores v. indian oil corporation, air 1990 sc 1031 wherein their lordships laid down as follows :- (paras 12 and 13)'the state acts in its executive power under article 298 of the constitution in entering in contracts with individual parties. article 14 of the constitution would be applicable to those exercise of power. therefor, the action of state organ can be checked under article 14. every action of the state executive authority must be subject to rule of law and must be informed by reason. so, whatever be the activity of the public authority, it should meet the test of article 14 of the constitution. if a governmental action even in the matters of entering or not entering into contracts, fails to satisfy the test of reasonableness, the same would be unreasonable. rule of reason and rule against arbitrariness and discrimination, rules of fair play and natural justice are part of the rule of law applicable in situation or action by state instrumentality in dealing with citizens. even though the rights of the citizens are in the nature of contractual rights, the manner, the method and motive of a decision of entering or not entering into a contract, are subject to judicial review on the touchstone of relevance and reasonableness, fair play, natural justice, equality and non-discrimination. it is well settled that there can be 'malice in law'. existence of such 'malice in law' in part of the critical apparatus of a particular action in administrative law. indeed 'malice in law' is part of the dimension of the rule of relevance and reason as well as the rule of fair play in action.'20. in the case of sterling computers ltd. v. m. & n. publications ltd., air 1996 sc 51 it has been held as under :-'while exercising the power of judicial review, respect of contracts entered into on behalf of the state, the court is concerned primarily as to whether there has been any infirmity in the 'decision making process.' by way of judicial review the court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the state. court have inherent limitations on the scope of any such enquiry. but at the same time the courts can certainly examine whether 'decision making process' was reasonable rational, not arbitrary and violative or article 14 of the constitution. if the contract has been entered into without ignoring the procedure which can be said to be basis in nature and after an objective consideration of different options available taking into account the interest of the state and the public, then court cannot act as an appellate authority by substituting its opinion in respect of selection made for entering into a contract. but, once the procedure adopted by an authority for purpose of entering into a contract is held to be against the mandate of article 14 of the constitution, the court cannot ignore such action saying that the authorities concerned must have some latitude or liberty in contractual matters and any interference by court amounts to encroachment on the exclusive right of the executive to take such decision.' 21. in the case of tata cellular v. union of india, air 1996 sc 11 the apex court has expressed the view that the principles of judicial review would apply to the exercise of contractual powers by government body in order to prevent any kind of arbitrariness or favouritism. their lordships in have ruled thus :- (para 113)'the government must have freedom of contract. in other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. however, the decision must not only be tested by the application of wednesbury principle of reasonableness (including its other facts.........) but must be free from arbitrariness not affected by bias or actuated by mala fides.' 22. in the case of union of india v. dinesh engg. corporation, (2001) 8 scc 491 : (air 2001 sc 3887) their lordship of the apex court ruled as under :-'16. but then as has been held by this court in the very same judgment that a public authority, even in contractual matters should not have unfettered discretion and in contracts having commercial element even though some extra discretion is to be conceded in such authorities, they are bound to follow the norms recognized by courts while dealing with public property. this requirement is necessary to avoid unreasonable and arbitrary decisions being taken by public authorities whose actions are amenable to judicial review. therefore, merely because the authority has certain elbow room available for use of discretion in accepting offer in contracts, the same will have to be done within the four corners of the requirements of law, especially article 14 of the constitution.' 23. from the aforesaid pronouncements of law it is clear as day perceivable that the court has its own limitations while exercising the judicial review but the court has the power to scrutinize with regard to the manner, mode and method in which the decision has been taken and is also required to see whether the action of the authorities is vitiated because of the abuse of discretion and burial of collective interest for the benefit of a group of individuals or an individual.24. it is to be borne in mind that the principle of reasonableness and non-arbitrariness in public action, be it governmental or other authority is the core of entire conception scheme and structure.25. in the case at hand, as has been indicated earlier, the petitioner-association not only put forth a tall claim with regard to obtaining of higher price but also deposited the amount to make the effort bona fide. in this context i think it condign to refer to the decision rendered in the case of ram and shyam company v. state of haryana, air 1985 sc 1147 wherein the apex court while observing enhancement of an offer in respect of a lease of a minor mineral from 4.5 lacs to 25 lacs expressed thus :-'6. shock and surprise was visible on the face of each one in this court. shock was induced by the fact that public property was squandered away for a song by persons in power who hold the position of trust. surprise was how judicial intervention can serve larger public interest. one would require multilayered blindfold to reject the appeal of the appellant on any tenous ground so that the respondent may enjoy and aggrandize his unjust enrichment. on this point we say no more.' 26. on a perusal of the pleadings it is demonstrable that there was publication of the advertisement in the newspaper, namely, 'dainik acharan' only in respect of city of sagar. it is admitted position that there has been no publication in all the copies of the said newspaper. it is also perceivable from the counter-affidavit filed by the respondent no. 4 that as the press note was received late the advertisement was re-arranged in blocks in that edition which was meant for circulation within the city of sagar. the municipal corporation has really not stated that in how many copies the advertisement was published. that apart, what is shocking is that the bid of the respondent no. 3 which was only rs. 51,45,000/- was accepted treating it to be the highest though there were hardly three tenders. it is not disputed at the bar that there are widely published newspapers in the state of m. p. and had the offer inviting tender been published in those newspapers a better offer could have come. the said aspect is lunmiescent since the petitioner-association has made an offer of rs. 1 crore and deposited the said amount before this court. it is to be borne in mind that in promoters' scheme the promoter has to build the shops and give it on certain premium to the interested persons. the municipal corporation is the gainer. there can be no scintilla of doubt that in transaction of this nature the effort of the municipal corporation is to get as much amount as possible. while extending such benefit to the promoter, tranparency and openness in public auction are to be the guiding principles. tested on those guidelines, i am of the considered opinion that the acceptance of tender of the respondent no. 3 on the foundation that it was highest offer is neither in public interest nor is based on well advised and appropriate commercial principle. i am conscious that the court should not require substitute the commercial principles but in the present case there had been no wide publicity which is outstanding important fact, and the petitioner has come with an offer which is more than the 100% amount that has been quoted by the respondent no. 3 and the facts are tell tale which leads to the irresistible conclusion that decision making process smacks of unreasonableness. therefore, it has to be struck down and accordingly the acceptance of tender of respondent no. 3 is annulled. be it noted that there had been concession at the bar that the respondent no. 3 had not started any construction. the matter would have been different had the construction taken place.27. once the acceptance of tender of respondent no. 3 is quashed certain directions are required to be issued and accordingly following directions are issued :-(i) the municipal corporation sagar shall re-advertise matter that had been advertised in 'dainik acharan' in exact terms in two widely circulated hindi newspapers, namely, 'nav bharat and 'dainik bhaskar' as had been suggested by the learned counsel for the corporation in course of hearing when a query was made with regard to widely published newspapers in the state.(ii) a gap of twenty one days from the date of publication shall be given for the purpose of submission of tender.(iii) the tender shall be opened by the municipal corporation in presence of bidders under the supervision of collector, sagar.(iv) the upset price shall be rupees one crore and any offer/ quotation below the said price shall be rejected.(v) the earnest money amount to be deposited along with the tender should be rs. 3,00,000/-. as the petitioner has deposited rs. 1 crore before this court it need not deposit the earnest money.(vi) the successful bidder shall deposit 30% of the bid amount with the corporation before the work is awarded.(vii) if the petitioner becomes the highest bidder its bid shall be accepted and the 30% of the bid amount shall be drawn by the municipal corporation on filing due application before the registry of this court. in addition, be it noted that if no higher offer comes then what has been offered by the petitioner before this court, he shall be deemed to be the highest bidder and the work in question shall be awarded in his favour and he would be liable to carry out the work in question.(viii) the balance amount deposited before this court after excluding amount as directed above shall be refunded to the petitioner.(ix) to ensure quality of construction the work shall be supervised by the chief technical engineer, pwd, state of m. p. from time to time.(x) the exercise in respect, of the aforesaid aspects shall commence by 25-3-2005.28. the writ petition is allowed to the extent indicated above. however, in the peculiar facts and circumstances of the case there shall be no order as to costs.

Judgment:
ORDER

Dipak Misra, J.

1. The centroidal issue and the Kernel of controversy that arises for adjudication in this case compels one to put a singular and pointed question: Whether a local body can abandon its sense of socio-economic purpose in entirety, abdicate its sacrosanct duty pertaining to commercial gain and pave the path of colourable originality of a xerox machine and act like a hypocrite even in sleep to propagate it has acted in good faith in a transparent manner when it has actually dealt with its largess diminishing all public element and giving it if not for a song but for slightly more than pinch of snuff? I have begun with the aforesaid protasis as the petitioner, a registered association of business of Bakshikhana Market, Sagar invoking the extraordinary Jurisdiction of this Court under Article 226 of the Constitution of India has called in question the propriety and acceptability of the action taken by the Municipal Corporation, Sagar vide resolution dated 25-8-2004 contained in Annexure-P-8 and prayed for issue of a writ of certiorari for quashment of the same and also to lancet the agreement entered into between the Municipal Corporation, the respondent No. 2 herein, and the respondent No. 3, Promoter/Builder, in respect of the construction of market complex and pass such order/ orders as may be deemed fit and proper in the facts and circumstances of the case.

2. The facts which are essential to be stated are that the petitioner-association has 185 members and said members are the permanent lessees of the respondent-Corporation in respect of the plots/shops in their possession situated at Bhakshikhana Market, Gujarati Bazar, Sagar, Municipal Corporation, Sagar agreed to construct 183 shops over the existing Bakshikhana market place. The entire project of construction of said complex /market place was allotted in favour of respondent No. 3, the Promoter, for a sum of Rs. 51,61,320/- without giving wide publicity to the said project. It is pleaded that the 'Offer Invitation Notice' was published in only 20-25 copies of a newspaper, namely, 'Dainik Acharan' Sagar on 26-4-2004 which was a shadow of compliance of publicity. According to the writ petitioner the notice was not published in all the copies of the newspaper in question as a result of which the petitioner-association was not aware of the said offer and all this was done in clandestine manner to show favour to the respondent No. 3. It is urged that by designing such a device the respondent-corporation intentionally restricted the offers from the general public and caused heavy financial loss to the Corporation and denied the benefit to the petitioner-association who could have participated in the project. It is contended that vide proposal No. 4 of the meeting of the Mayor-in-Council the offer of the respondent No. 3 was considered for constructing a three storied market complex and the said proposal was forwarded to the Government for final approval, though the amount obtainable could have been more than rupees one crore.

3. According to the writ petitioner it was kept in total dark and the intention of the respondent-corporation could only be known on 26-7-2004. It is also put forth that when a public element was involved there could have been wide publicity in respect of the offer invitation notice and the same should not have been restricted to the limited copies of the newspaper which does not have much circulation.

4. It is worthwhile to mention here that an application was filed to take the additional documents on record to show how another daily newspaper, namely, 'Nai Duniya' also did not publish in all its copies about the offer invitation notice.

5. A return has been filed by the respondent No. 2 contending, inter alia, that the petitioner-association could have approached the State Government before institution of the present petition and as the alternative remedy has not been exhausted the writ petition should not be entertained. It. has been asseverated that there are 183 temporary shops in Bhakshikhana market and on several occasions in the past the shopkeepers of the market suffered huge loss on account of fire incident and there was a request by the shopkeepers for construction of the permanent shops. The representations of the shopkeepers were sent to the State Government and there was recommendation by the State Government for such construction. However, as the Corporation had the financial problem it was unable to construct the market and, therefore, a decision was taken to get the market constructed through a promoter. This led to publication of a notice inviting tender from promoters. The paper publication made in 'Dainik Acharan' and 'Nai Duniya' newspapers have been brought on record. It is contended that the tender notice was published in 'Dainik Acharan' on 26-4-2004 and 'Dainik Nai Duniya, Bhopal', on the same date. The tender notice were also affixed on the notice board of the Municipal Corporation. In pursuance of the advertisement the respondents received three different tenders and as the offer of the! respondent No. 3 was the highest it was decided to accept the said tender. The stand of the petitioner that the tender notice was not published in all the copies of the newspaper has been controverted. The status of the members of the association as regards lease hold right is also disputed. The stand of the petitioner that the project of market complex would have fetched more then crore of rupees and has been given in lesser price in favour of respondent No. 3 is a wild allegation without any kind of base or foundation.

5A. A counter-affidavit has been filed by the respondent No. 3 putting forth that the allegations made by the petitioner are without any justification as there has been due publication in the newspapers and the respondent No. 3 submitted his tender in accordance with the terms of the offer invitation notice along with a Bank Draft of Rs. 1,00,000/-. It is urged that the tenders were opened by the Commissioner of the Municipal Corporation and finding that his tender was the highest he was allotted the project in question. It is also put forth that on 22-7-2004 the respondent No. 2 asked the respondent No. 3 to deposit Rs. 12,90,330/. It has also denied with regard to number of shops to be constructed. It is also put forth that the petitioner has put forth an exhorbitant figure of rupees one crore which is in the realm of imagination. It is asseverated that, the everything has been done in accordance with the procedure and in the absence of any kind of illegality or irregularity the acceptance of tender of respondent No. 3 cannot be found fault with.

6. A reply has been filed by the respondent No. 4, Acharan Printers Pvt. Ltd., disputing the stand that only 20-25 copies of the newspaper contained the advertisement. It is set forth that the order of Municipal Corporation for publication of the advertisement was received by the press on 23-4-2004 and the advertisement was to be published on 26-4-2004 and by that time the printing of the newspaper which are meant to be circulated in the far flung areas had already commenced and the copies which were to be circulated within the city of Sagar were printed late night and, therefore, the edition which was meant for circulation within the city carried the advertisement. It is put forth that more than 7000 copies of newspaper contained advertisement in question. A chart has been annexed wherein the areas and the number of the copies of the newspaper distributed in the said areas have been mentioned. All other allegations regarding any kind of nexus between the respondent No. 3 and 4 has been denied.

7. I have heard Mr. Arvind Chouksey, learned counsel for the petitioner, Mr. S. K. Yadav, learned Government Advocate for the State, Mr. V. S. Choudhary, learned counsel for the respondent No. 2, Municipal Corporation, Mr. S. D. Mishra, learned counsel for respondent No. 3 and Mr. Sharad Verma, learned counsel for the respondent No. 4.

8. Mr. Chouksey, learned counsel for the petitioner contended that on a perusal of the material brought on record it is clear and perceptible that there has been no wide publication of the advertisement and a chart shown in the counter-affidavit of the respondent No. 3 also would go a long way to exposit that there was partial publication in the city of Sagar but not in any other place, ft is also contended by him that the Municipal Corporation in its return had made bald denials in respect of making any kind of positive affirmation with regard to its transparent function. It is his further submission that the petitioner-association had really not been aware of the proposal and there has been deliberate close circuit circulation of the publication of the advertisement as a consequence of which the Municipal Corporation has suffered heavy loss since such a project would have fetched more than Rs. 1 crore but it has been given at half price. It is also propounded by the plea of alternative remedy is totally untenable in the case at hand as the litigation has a different scenario to project.

9. Mr. V. S. Choudhary, learned counsel for the Corporation, countering the aforesaid submission of the Corporation, countering the aforesaid submission of the learned counsel for the petitioner, contended that there had been due publicity but the petitioner maintained golden silence only to wake up like a. phoenix after everything was over to imbibe life into a dead body which is well nigh impossible in any realm. Pyramiding the aforesaid submission it is submitted by Mr. Choudhary that the petitioner watched from the distance and after the tender was finalised it approached the Court which shows its mala fide intention and in the matter of this nature, the Court should take the conduct of the petitioner into account and should not entertain the petition which is nothing but sound arid a fury signifying nothing. Learned counsel further propounded that the petitioner had due knowledge about the whole thing but had woken up at a later stage for no apparent reason and a plea is take with regard to wide publicity which has no base or foundation and is bound to fonder.

10. Mr. S. D. Mishra, learned counsel for the respondent No. 3 supported the submissions put forth by Mr. Choudhary and further added that the respondent had no nexus either with the Corporation or with the newspaper but his offer being the highest than the others the same was accepted and, therefore, the action of the Municipal Corporation has to be regarded as impeccable.

11. Mr. Sharad Verma, learned counsel for the respondent No. 4 contended that the newspaper has performed its duty and the allegation that there has been publication in the limited copies is neither correct nor sound.

12. Mr. S. K. Yadav, learned Government Advocate, in his turn, submitted that the question 6i public element has to be kept in view and the matter should be dealt with from the spectrum of public interest and financial gain of the Corporation.

13. Before dwelling upon the rivalised submissions raised at the Bar, it is appropriate to mention here that this Court on 5-1-2005 restrained the respondent No. 1 from not allotting any shop without prior permission of this Court. It is relevant to state that the learned counsel for the Municipal Corporation as well as the Promoter very fairly conceded before this Court that no construction has taken place. Accepting the said submission the matter is to be dealt with.

14. At this stage it is seemly to refer to the order dated 2-2-2005. On that date this Court passed the following order :-

'Heard Mr. Arvind Chouksey, learned counsel for the petitioner and the learned counsel for the respondents in part.

In course of hearing Mr. Chouksey has submitted that the Municipal Corporation has extended the benefit in favour of the respondent No. 3 on acceptance of Rs. 51,61,320'/-. It is submitted by the learned counsel for the petitioner that there has been limited publication as a consequence of which the' petitioner has been deprived from competing with others. As presently advised, I am not inclined to enter into such fact.

It is submitted by Mr. Chouksey that the petitioner known about the publication he would have come with a much better offer. When a query was made whether he would be able to deposit rupees one crore before the Registrar General of this Court, after obtaining instructions the learned counsel submitted that he is prepared to deposit rupees one crore before the Registrar General of this Court by 22-2-2005. In view of the aforesaid submission made by Mr. Chouksey I am inclined to grant time to deposit the aforesaid amount. Mr. Chouksey has also submitted that if the amount is not deposited within the aforesaid period he would not press the writ petition. It would be open to the respondent No. 3 to raise the contentions as per law on next date of hearing. In the meantime respondents 1 and 2 shall not create any third party interest in respect of constructed shops or in respect of shops which is under constructions as well as in respect of the vacant land. No coervice action shall be taken to demolish any structure. This Court hopes and trusts that the authorities shall behave with due propriety.'

15. At this juncture, I think it appropriate to refer to certain decisions to appreciate the centripetal issue that arises for consideration in this case, namely, whether the decision making process of the Municipal Corporation is just sound and proper or there is any concavity in it, to invite its own destruction. In the case of State of U.P. v. Dharmander Prasad Singh, AIR 1989 SC 997 a two Judge Bench of the Apex Court while dealing with the concept of judicial review in the matter of decision making process has expressed the view as under :- (Para 28)

'Judicial review under Article 226 cannot be converted into an appeal. Judicial review is directed, not against the decision, but is confined to the examination issues raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting, to take into account of relevant factors or is so manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision, the judicial review of the decision making process includes examination as a matter of law, of the relevance of the factors'.

16. In the case of Union of India v. Lt. Gen. Rajendra Singh Kadyan (2000) 6 SCC 698 : (AIR 2000 SC 2513) a three Judge Bench of the Apex Court in paragraph 29 has expressed thus :-

'29............It is a well known principle of administrative law that when relevant considerations have been taken note of and irrelevant aspects have been eschewed from consideration and that no relevant aspect has been ignored and the administrative decisions have nexus with the facts on record, the same cannot be attacked on merits. Judicial review is permissible only to the extent of finding whether the process in reaching decision has been observed correctly and not the decision as such.........'

17. In the case of W.B. State Electricity Board v. Patel Engineering Co. Ltd., (2001) 2 SCC 451 : (AIR 2001 SC 682) emphasis was laid on protection of public interest and also on adherence to the Rules.

18. In the case of Netai Bag v. State of W.B., (2000) 8 SCC 262 : (AIR 2000 SC 3313) in paragraphs 17 and 18 their Lordships have expressed the view as under :-

'17. It has been consistently held by this Court that in a democracy governed by the rule of law, the executive Government or any of its officers cannot be allowed to possess arbitrary powers over the interests of the individual. Every action of the executive Government must be in conformity with reason and should be free from arbitrariness. The Government cannot be equated with an individual in the matter of selection of the recipient for its largesse. Dealing with the limits on the exercise of executive authority in relation to rule of administrative justice, Mr. Justice Frankfurter in Vitarelli v. Seaton (1959 (359) US 535) said :

'An executive agency must be rigorously held to the standards by which it professes it action to be judged......Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed ..... This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword.'18. This rule of administrative law was accepted as valid and applicable in India by this Court in Amarjit Singh Ahluwalia (Dr.) v. State of Punjab : (AIR 1975 SC 984), Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi : (AIR 1975 SC 1331) and Ramana Dayaram Shetty v. International Airport Authority of India. : (AIR 1979 SC 1628).

19. In this context I may refer with profit to the decision rendered in the case of Mahabir Auto Stores v. Indian Oil Corporation, AIR 1990 SC 1031 wherein their Lordships laid down as follows :- (Paras 12 and 13)

'The State acts in its executive power under Article 298 of the Constitution in entering in contracts with individual parties. Article 14 of the Constitution would be applicable to those exercise of power. Therefor, the action of State organ can be checked under Article 14. Every action of the State executive authority must be subject to rule of law and must be informed by reason. So, whatever be the activity of the public authority, it should meet the test of Article 14 of the Constitution. If a Governmental action even in the matters of entering or not entering into contracts, fails to satisfy the test of reasonableness, the same would be unreasonable. Rule of reason and rule against arbitrariness and discrimination, rules of fair play and natural justice are part of the rule of law applicable in situation or action by State instrumentality in dealing with citizens. Even though the rights of the citizens are in the nature of contractual rights, the manner, the method and motive of a decision of entering or not entering into a contract, are subject to judicial review on the touchstone of relevance and reasonableness, fair play, natural justice, equality and non-discrimination. It is well settled that there can be 'malice in law'. Existence of such 'malice in law' in part of the critical apparatus of a particular action in administrative law. Indeed 'malice in law' is part of the dimension of the rule of relevance and reason as well as the rule of fair play in action.'

20. In the case of Sterling Computers Ltd. v. M. & N. Publications Ltd., AIR 1996 SC 51 it has been held as under :-

'While exercising the power of judicial review, respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the 'decision making process.' By way of judicial review the Court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Court have inherent limitations on the scope of any such enquiry. But at the same time the Courts can certainly examine whether 'decision making process' was reasonable rational, not arbitrary and violative or Article 14 of the Constitution. If the contract has been entered into without ignoring the procedure which can be said to be basis in nature and after an objective consideration of different options available taking into account the interest of the State and the public, then Court cannot act as an appellate authority by substituting its opinion in respect of selection made for entering into a contract. But, once the procedure adopted by an authority for purpose of entering into a contract is held to be against the mandate of Article 14 of the Constitution, the Court cannot ignore such action saying that the authorities concerned must have some latitude or liberty in contractual matters and any interference by Court amounts to encroachment on the exclusive right of the executive to take such decision.'

21. In the case of Tata Cellular v. Union of India, AIR 1996 SC 11 the Apex Court has expressed the view that the principles of judicial review would apply to the exercise of contractual powers by Government body in order to prevent any kind of arbitrariness or favouritism. Their Lordships in have ruled thus :- (Para 113)

'The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts.........) but must be free from arbitrariness not affected by bias or actuated by mala fides.'

22. In the case of Union of India v. Dinesh Engg. Corporation, (2001) 8 SCC 491 : (AIR 2001 SC 3887) their Lordship of the Apex Court ruled as under :-

'16. But then as has been held by this Court in the very same judgment that a public authority, even in contractual matters should not have unfettered discretion and in contracts having commercial element even though some extra discretion is to be conceded in such authorities, they are bound to follow the norms recognized by Courts while dealing with public property. This requirement is necessary to avoid unreasonable and arbitrary decisions being taken by public authorities whose actions are amenable to judicial review. Therefore, merely because the authority has certain elbow room available for use of discretion in accepting offer in contracts, the same will have to be done within the four corners of the requirements of law, especially Article 14 of the Constitution.'

23. From the aforesaid pronouncements of law it is clear as day perceivable that the Court has its own limitations while exercising the judicial review but the Court has the power to scrutinize with regard to the manner, mode and method in which the decision has been taken and is also required to see whether the action of the authorities is vitiated because of the abuse of discretion and burial of collective interest for the benefit of a group of individuals or an individual.

24. It is to be borne in mind that the principle of reasonableness and non-arbitrariness in public action, be it Governmental or other authority is the core of entire conception scheme and structure.

25. In the case at hand, as has been indicated earlier, the petitioner-association not only put forth a tall claim with regard to obtaining of higher price but also deposited the amount to make the effort bona fide. In this context I think it condign to refer to the decision rendered in the case of Ram and Shyam Company v. State of Haryana, AIR 1985 SC 1147 wherein the Apex Court While observing enhancement of an offer in respect of a lease of a minor mineral from 4.5 lacs to 25 lacs expressed thus :-

'6. Shock and surprise was visible on the face of each one in this Court. Shock was induced by the fact that public property was squandered away for a song by persons in power who hold the position of trust. Surprise was how judicial intervention can serve larger public interest. One would require multilayered blindfold to reject the appeal of the appellant on any tenous ground so that the respondent may enjoy and aggrandize his unjust enrichment. On this point we say no more.'

26. On a perusal of the pleadings it is demonstrable that there was publication of the advertisement in the newspaper, namely, 'Dainik Acharan' only in respect of city of Sagar. It is admitted position that there has been no publication in all the copies of the said newspaper. It is also perceivable from the counter-affidavit filed by the respondent No. 4 that as the press note was received late the advertisement was re-arranged in blocks in that edition which was meant for circulation within the city of Sagar. The Municipal Corporation has really not stated that in how many copies the advertisement was published. That apart, what is shocking is that the bid of the respondent No. 3 which was only Rs. 51,45,000/- was accepted treating it to be the highest though there were hardly three tenders. It is not disputed at the Bar that there are widely published newspapers in the State of M. P. and had the offer inviting tender been published in those newspapers a better offer could have come. The said aspect is lunmiescent since the petitioner-association has made an offer of Rs. 1 crore and deposited the said amount before this Court. It is to be borne in mind that in promoters' scheme the promoter has to build the shops and give it on certain premium to the interested persons. The Municipal Corporation is the gainer. There can be no scintilla of doubt that in transaction of this nature the effort of the Municipal Corporation is to get as much amount as possible. While extending such benefit to the promoter, tranparency and openness in public auction are to be the guiding principles. Tested on those guidelines, I am of the considered opinion that the acceptance of tender of the respondent No. 3 on the foundation that it was highest offer is neither in public interest nor is based on well advised and appropriate commercial principle. I am conscious that the Court should not require substitute the commercial principles but in the present case there had been no wide publicity which is outstanding important fact, and the petitioner has come with an offer which is more than the 100% amount that has been quoted by the respondent No. 3 and the facts are tell tale which leads to the irresistible conclusion that decision making process smacks of unreasonableness. Therefore, it has to be struck down and accordingly the acceptance of tender of respondent No. 3 is annulled. Be it noted that there had been concession at the Bar that the respondent No. 3 had not started any construction. The matter would have been different had the construction taken place.

27. Once the acceptance of tender of respondent No. 3 is quashed certain directions are required to be issued and accordingly following directions are issued :-

(i) The Municipal Corporation Sagar shall re-advertise matter that had been advertised in 'Dainik Acharan' in exact terms in two widely circulated Hindi newspapers, namely, 'Nav Bharat and 'Dainik Bhaskar' as had been suggested by the learned counsel for the Corporation in course of hearing when a query was made with regard to widely published newspapers in the State.

(ii) A gap of twenty one days from the date of publication shall be given for the purpose of submission of tender.

(iii) The tender shall be opened by the Municipal Corporation in presence of bidders under the supervision of Collector, Sagar.

(iv) The upset price shall be rupees one crore and any offer/ quotation below the said price shall be rejected.

(v) The earnest money amount to be deposited along with the tender should be Rs. 3,00,000/-. as the petitioner has deposited Rs. 1 crore before this Court it need not deposit the earnest money.

(vi) The successful bidder shall deposit 30% of the bid amount with the Corporation before the work is awarded.

(vii) If the petitioner becomes the highest bidder its bid shall be accepted and the 30% of the bid amount shall be drawn by the Municipal Corporation on filing due application before the Registry of this Court. In addition, be it noted that if no higher offer comes then what has been offered by the petitioner before this Court, he shall be deemed to be the highest bidder and the work in question shall be awarded in his favour and he would be liable to carry out the work in question.

(viii) The balance amount deposited before this Court after excluding amount as directed above shall be refunded to the petitioner.

(ix) To ensure quality of construction the work shall be supervised by the Chief Technical Engineer, PWD, State of M. P. from time to time.

(x) The exercise in respect, of the aforesaid aspects shall commence by 25-3-2005.

28. The writ petition is allowed to the extent indicated above. However, in the peculiar facts and circumstances of the case there shall be no order as to costs.