(^A^" \ sr^y: @ IN THE HON'BLE HI6H COURT OF CHHATTES6ARH AT BILASPUR W.P.fC)NO.c33320F2009 WRITPETITTON UNbERARTICLE 226. CONSTITUTION OF INDIA Petitioner .<^-;^y-; ^.-•^c^;-""^-' >-^^~"^--"' Y^r- '^--'^^"' ,..s^^-" ^ A®*••••" Ashwant Sahu, S/o Late Bahur Singh Sahu, aged 29 year's, R/o ; Wgrd No. 8,)Tilda-Neora, Distt-. Raipur (Chhattisgarh) Versus Respondents i¥» ^s 1. ' State 6f Chhattisgarth, through the Secretary, &epdrtment of Urban Administration, &.K.S. Bhawan, Raipur. 2. Nagar PalikaParishad/Tilda-Nepra, througH the Chief MuniCipal Officer, Nagar Palika PanshaGl, Tilda-Neora, Distt. Raipur- irh) 3. Smt. Krishna Khatik, aged about 50 yedrs, Chief Municipat Qfficer, Nagar'PalikaPciri3had,!Tilda-Neora, Drstt. Raipur (Chhattisgarh) 1. PARTIGULARS OF THE PETTTEONER HIGH COURT OF CHHATriSGARH : BILASPUR Sinale Bench: Hon'ble Shri Manindra Mohan Shrivastava, J. PETITIONER RESPONDENTS WRIT PETITION (Cl N0.2866/2009 Ashwant Sahu Versus State of Chhattisgarh & 2 others PET!T10N£R RESPONDENTS WRIT PETITION (C) N0.2932/2009 Ashwant Sahu Versus State of Chhattisgarh & 2 others PETITIONER RESPONDENTS PETITIONER RESPQNDENTS WRITPETITION (0 N0.2933/2009 Ashwant Sahu Versus State of Chhattisgarh & 2 others & WRIT PETITION (C) N0.2934/2009 Ashwant Sahu Versus State of Chhattisgarh & 2 others rTesent: • Shri Sanjay Shyam Agrawal, counsei for the petitioner. Shri Sushil Dubey, Government Advocate for the State/respondent No.1. Shri Y.S. Thakur, counsel for respondents No.2 and 3. ORAL ORDER (Passed on 28th of Mareh, 2011) By this common order, the aforesaid four writ petitions are being disposed off, as similar questions of law and fact arises for consideration. All the four petitions have been filed by one person - Ashwant Sahu, who participated in the auction proceedings. 2. The facts necessary for disposal of controversy involved in this petition are that respondent No.2-Municipality constituted under Chhattisgarh Municipalities Act, constructed certain shops situated at Police Ground, Commercial Premises, Yatri Milap Bhawan and Pratiksha Bus Stand. In order to grant lease- the respondent - Municipality proceeded to issue an auction notlce on 13/1/09 (Annexure P/2), putting to notice, interested persons to participate in auction, in respect ofthe shops described in the auction notice. The auction notice was in respect of 16 commercial shops situated at Police Ground, Commercial Premises. The auctions were held in the period from 28/1/2009 to 30/01/2009. As the auction proceedings were not finalised in respect of number of shops, another auction notice in respect of remaining 11 commercial shops was issued on 30/04/09 (Annexure P/3). Under these auction notices, the auctions were scheduled to be held on 15/5/09 at 11 A.M. In the auction proceedings, on that day, the petitioner, in four petitions, offered his bid in respect of shop No.2, 7, 8 and16. The offer of the petitioner in respect of different shops was as below - a). ShopNo.2 - SLakhs b). ShopNo.7 - 7.20Lakhs c). ShopNo.8 - 4.02Lakhs d). ShopNo.16 - CLakhs Though the offer of the petitioner, in respect of the aforesaid four shops and the bid quoted was the highest one, the Chief Municipal Officer did not accept the same and it was recorded in the bid sheet that as the bid is not sufRcient, auction is stayed. -It is the aforesaid decision of the respondent-the Chief Municipal OfRcer which is under challenge before this Court in the fbur writ petitions, on similar grounds. 3. Learned counsel for the petitioner assailed the legality and validity of the aforesaid decision of the Chief Municipal Officer on following principal submissions - a. That once a bid of an amount, more than minimum reserved price, is received as highest, it is beyond the authority of the Chief Municipal Officer to reject or stay the auction proceedings. b. That decision to stay by not accepting the highest bid of the petitioner is otherwise arbitrary and violative of the Article 14 of the Constitution of India. c. The action of respondent - the Chief Municipal OfRcer is highty malafide that the respondent - the Chief Municipal OfRcer demanded a huge amount from the petitioner as consideration of acceptance of his highest bid. 4. Elaborating his submissions, learned counsel for the petitioner contended that under the scheme of the Municipal Act, as contained in Section 109 thereof, and the provisions contained in Chhattisgarh Munlcipalities (Transfer of Immovable Property) Rutes, 1996 (hereinafter referred to as the Rules of 1996), once highest bid is found to be more than the minimum reserved price, the Chief Uunicipal Officer is required to forward a proposal to the State Govemment as envisaged under Section 109 (3) proviso (ii) read with Rule 7 of the rules of1996. He submits that whether or not, the bid is required to be accepted or the auction proceeded to be stayed or re-auction to be held, in such cireumstanc^s, the matter is required to be considered at the State Government level and the matter could not be nipped in the bud by the Chief Municipal Officer himself, without bringing it to the notice and knowledge ofthe State Government. On the second issue, learned counsel for the petitioner vehemently contended that even assuming that such power is available with the Chief h4unicipal Officer, the power has been exercised in a most arbitrary, unreasonable and irrational manner. Learned counsel for the petitioner argued that the decision, not to accept the bid offered by the petitioner and to stay auction proceedings, was most unreasonable. According to him, once the Municipal Council had resolved to the effect that minimum reserved price would be threelakhs, any amount fetched more than that, ought to have been accepted. He further submits that the bid sheets in all the cases do not specifically spell out the reasons which are now being supplied in the return of the respondents. According to him, it has been vaguely stated in the bid sheets, in each of the cases relating to four shops, that the bid is insufRcient, without any other reason stated in the bkl sheets. On the aforesaid premises, leamed counsel for the petitioner submits that the decision of the authority iswholly irrational and therefore, violative of the Article 14 ofthe Constitution of India. 5. On the stated malafide exercise of power, it has been argued that the petitioner has very categorically averred in the writ petition, which is supported by affidavit oftwo other participants in the auction proceedings that respondent No.3 had demanded money from the petitioner as the consideration for acceptance of the offer subm'rtted by the petitioner. Learned counsel for the petitioner submits that this was the real operative reason behind rejection of the petitioner's bid rather than any other. bonafide reasons by the respondent - the Chief Municipal Officer. 6. On the other hand, learned counsel for the State as well as counsel for the Municipality as also counsel for the Chief Municipal Officer have submitted that the decision taken by the Chief Municipal Officer in his official capacity as such, is neither illegal nor arbitrary, much less tainted by any malafide motive. Learned counsel for the respondents argued that the Chief Municipal Officer is the competent authority under the taw to sell and / or grant lease and otherwise dispose off Municipal property, though, whiie exercising such power, he is required to follow some procedure and consult appropriate authority, as and when required by law. Therefore, it is contended that the power to reject highest bid or to stay auction proceedings vests in the Chief Municipat Officer by virtue of its power to accept. He further submits that proposal for sanction is required to be forwarded to the State Government as contemplated under Section 109 (3) proviso (ii) read with rule 7 of the Rutes of 1996, onty when the Chief Municipal Officer decides to accept a bid and recommends it to the higher authority for grant of lease. tt is argued that in case, at the level of the Chief Municipai Officer itself if it is decided, not to proceed further in the matter, law does not require such a decision also to be sanctioned or approved, either by Municipal Council or by the State Government. tt is also argued that as far as the decision, not to accept and stay the auction proceedings in respect of shops No.2, 7, 8 and 16 is . concemed, the same is the outcome of bonafide exercise of administrative power based on relevant circumstances. Learned counsel for the respondent argued that the administrative decision cannot be subjected to judicial review as if the Court were an appellate authority. He submits that the decision, not to accept the highest bid of the petitioner in respect of shops No.2, 7, 8, and 16 was founded on relevant considerations based on established facts. Though the amount offered by the petitioner in respect of the shops No.2, 7, 8 and 16 was ? ,.f ..^ : I ;|fr-r^, t !„ <te.-»"^ '"':"*a~jsy highest and more than minimum reserved price, it was found that even in respect of shops for reserved category, a very high amount of Rs.10 takhs and above was offered. This was one of the importani considerations for the Chief Municipal Officer, not to accept the offer of the petitioner. As far as ailegations of demand are concerned, it has been contended that those aliegations are oniv an anerthought, vague and improbabie. 7. As far as first submission of learned counsei for the petitioner that the Chief Municipai Ofricer does not have the power to stay auction proceedings, the same wiii reauire consideration in the light of the provisions contained in Section 109 and the provisions contained in the ruies and aiso the terms and conditions of auction. The statutorv scheme of Section 109 cieariv show that in ail circumstances, the authorifri/ comDetent to seti or otherwise dispose off the Municipai property, is the Chier Municipai Officer. May be that, depending upon valuation of the propertv, the Chief Municipai Officer is required to obtain sanction of the President in Councii. Council or the State Government as the case may be, it is the Chief Municipal Officer aione who is the competent authoritv to seii Drooertv. From the orovisions contained in the Rules of 1996 also, it is cieariv refiected that the auction has to take place underthe supen/ision of the Chief Municipai Officer as contempiated in Ruie 5 thereof. The auction notice which has been issued bv the Chief Municipai Officer states that in case. sufficient bid is not obtained. re-auction could be done. This power of the Chief Municipai Officer inciudes in it, aii other powers which are incidentai for effective exereise of such power. Therefore, by necessary coroliary thereof, the power to accept inciudes the power, not to accept and to stay auction proceedings as weil. Neither in the provisions of Section 109 nor In any of the ruies contained in Rules of 1996, there is any provision, which provides otherwise or by necessary implication prohibits the Chief Municipal' Officer from taking a decision with regard to rejection of a particular bid or offer. The reliance placed by leamed counsel for the petitioner on the rules contained in the Rules of 1996 is misplaced for the reason that an occasion to forward the proposal to the State Government would arise only in the eventuality, when a resolution is passed by the Council in terms of proviso (ii) of Sub-Section 3 of Section 109 of the Municipalities Act. Present is not a case where highest bid was accepted and the Chief Municipal Officer was required to obtain sanction of the Council and in that connection, the matter was placed before the Council. It is also not a case that it being a case covered by proviso (ii) of Sub-Section 3 of Section 109 of the Municipalities Act, which was to be placed before the Council, after acceptance of the highest bid. ff the bid has not been accepted by the Chief Munreipal Officer, there was no occasion to forward the proposal in terms of provisions contained in Rute 7 of the Rules of 1996. Therefore, l am of the view that the Chief Municipal Officer had all the authority to accept or not to accept any bid. 8. As far as the submission with regard to the reasonabitity of the action is concemed, what 1 find that the Chief Municipal OfRcer, in all the cases, retating to Shops No.2,7, 8 and 16, has recorded in the bid sheet that the auction is stayed as the bid is not sufTicient. Facially, the reasons which have beenassigned for not proceeding further in the matter, cannot be said to be extraneous or irrelevant. The provisions contained in the Rules of 1996, particularly, those contained in Rule 6 thereof are clearly indicative of such an eventuatity. The auction notice, very explicitly states that if sufficient bid is not obtained, shops may be putto re-auction. in order to justifv such subjective satisfaction, in the return, the respondents have come out with ciear specific detaiis regarding highest bid retched with respect of shops No.2, 7, 8 and 16 in auction dated 28/01/09, 29/01/09 and 15/05/09. The reason which has been assigned to arrive at such a satisfaction that the bids are not surricient as stated in the return are that though in respect of other shops, particuiariy in respect of shop No.6, reserved for Scheduied Castes, high bid amount was received which was Rs.10 iakhs and above, in respect of shops No.2, 7, 8, 16, even though it was more than minimum resen/ed price, it was comparatively less than the price for which shops No.1, 3, 4, 5, and 6 were auctioned. For shop No.10, 12, 13 and 15, the bid offered was more than Rs.10 iakhs. Learned counsei for the Detitioner couid not point out that any shop which fetched a bid amount iess than the bid offered by ihe petitioner in respect of shops No.2, 7, 8 and 16, was accepted by the respondent-Council. Therefore, ifthe decision is founded on such relevant materiai, I am unabie to hoid that the decision of the Chief Municipai Officer was so arbitrary, irrationai that no reasonable man of ordinary prudence couid have taken such a decision. in those circumstances, whiie scrutinizing the administrative action on the touchstone of Article 14 of the Constitution of india. this Court wouid not act as an aDDeliate auihoritv to substitute its own decision bv taking any view but the scope of judiciai review is more confined to the decision making process rather than the decision itself, uniess the decision is absoiutely iilogicai, irrational and so arbitrary that it cannot be accepted on the face of rt. Mere possibility of another view, could not be made a basis to chaiienge adminiS:rative action. in the oreseni case, the view which has been taken bv the Chief MuniciDai Officer cannot be termed as arbitrarv or outraaeous. so as to warrant interference by this Court in exereise of powers conferred under Article 226 ofthe Constitution of India. 9. There is one more aspect of the matter which requires to be dealt with. The petitioner has made serious allegations on the Chief Municipal Officer that the Chief Municipal Officer demanded money as consideration for acceptance of the petitioner's bid. In para 8.7 of the petition, the petitioner has stated that the Chief Municipal Officer illegally demanded a sum of Rs.50,000/- from the petitioner for allotment of shops in favour of the petitioner. There are two affidavits which have been placed on record by the petitioner in support of this version. 1 however, find that nelther in the petition nor in those affidavits, it has been specifically stated as to the time and place, where such demand was made by the Chief Municipal Officer. It is also relevant to mention here that though the allegation is that the demand was made by the respondent-Chief Municipal Officer presumably on 15/5/09, the petitioner till filing ofthese petitions, did not take up those matters nor nnade any complaint to any authority. For the first time in the writ petition before this Court, such allegation has been leveled. The two persons, whose affidavits were sown, were sown just before fiting of the writ petition. Ordinarily, the auction proceedings are held in the presence of large number of people, which includes various officers, staffs, auctioneers eto. The attegation that the respondent - Chief Municipal Officer demanded money in the presence of those persons, appears to be quite improbabte. Therefore, on the material which has been placed before this Court, this Court is not inclined to accept the version of the petitioner that the respondent- Chief Municipal Officer demanded bribe from the petitioner. The atlegations of malafide act require, as a matter of law, a very high degree of proof. The averments and affidavit of the 10 petitioner, faced with the facts and circumstances, fail to satisfy such a requirement of law regarding burden of proof. Therefore, 1 am not inclined to accept that the respondent - Chief Municipal Officer demanded such an amount as alleged bythe petitioner as a consideration for acceptance ofpetitioner's bid. 10. In the result, l do not find any merit in these petitions. The petitions are accordingly dismissed. The interim order passed eariier shatl stand vacated. DBBptl 11. Copy of this order be placed in the records of W.P.(C) N0.2932/2009, W.P.(C) N0.2933/2009 and W. P.(C) N0.2934/2009. Sdl- Nlanindra M^Shrivastava •^