Ajishbhanu v. Travancore Devaswom Board

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ## **`THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022/10TH KARTHIKA, 1944 ``` ``` WP(C) NO.34841 OF 2022 ``` ``` PETITIONER: ``` ``` AJISHBHANU, AGED 41 YEARS, ``` ``` S/O UDAYA BHANU, MALATHARAYIL HOUSE, SEETHATHODU P.O., SEETHATHODU VILLAGE, KONNI TALUK, PATHANAMTHITTA DISTRICT, PIN- 689 667. ``` ``` BY ADVS.MANJUSHA K SREELAKSHMI SABU M.T.SURESHKUMAR ``` ## **`RESPONDENTS:`** - **`1 TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KAWDIAR PO, THIRUVANANTHAPURAM 695 003, REPRESENTED BY ITS SECRETARY.`** - **`2 THE PRESIDENT, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KAWDIAR P.O., THIRUVANANTHAPURAM 695 003.`** - **`3 THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, DEVASWOM COMMISSIONER OFFICE, THIRUVANANTHAPURAM. PIN -695003.`** - **`4 EXECUTIVE ENGINEER, SABARIMALA DEVELOPMENT PROJECT, TRAVANCORE DEVASWOM BOARD BUILDING, KUMBAZHA ROAD, PATHANAMTHITTA. PIN 689645`** ``` SRI G.BIJU – SC, TDB ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- W.P.(C) No.34841 of 2022 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioner, who is a registered B Class Contractor, who had undertaken various construction works at Sabarimala and Pamba Devaswoms, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents to adjust the amount due to him, as reflected in the list appended to Ext.P2 information dated 06.09.2022, against the auction amount to be deposited by him as he had successfully auctioned Hotel No.8 at Pilgrim Centre 3, which is item No.14 in Ext.P4 list of auction items dated 28.09.2022. The grievance of the petitioner, which is highlighted in this writ petition, is regarding non-payment of bills in respect of various works undertaken at Sabarimala and Pamba Devaswoms. The amounts as shown in the list appended to Ext.P2 is pending payment or the bills are under scrutiny. According to the petitioner, the pending payments due to him from the 1[st] respondent Board come to Rs.1,79,29,148/-. The request of the petitioner in Ext.P5 representation dated 28.10.2022 submitted before the 1[st] respondent Travancore Devaswom -3- W.P.(C) No.34841 of 2022 Board to adjust Rs.1,26,40,572/-, which the petitioner has to remit towards the first installment of the auction amount, i.e., 50% of the bid amount in respect of Hotel No.8 at Pilgrim Centre 3, which is item No.14 in Ext.P4 list of auction items dated 28.09.2022, which he has to remit before 03.11.2022, against the amount due to the petitioner, as shown in the list appended to Ext.P2. 2. Heard the learned counsel for the petitioner and also the learned Standing Counsel for Travancore Devaswom Board. 3. The law laid down by the Apex Court in **Radhakrishna Agarwal v. State of Bihar [(1977) 3 SCC 457]** , **Premji Bhai Parmar v. Delhi Development Authority [(1980) 2 SCC 129]** and **Divisional Forest Officer v. Bishwanath Tea Company Ltd. [(1981) 3 SCC** **238]** is that where the contract entered into between the State and the persons aggrieved is non-statutory and purely contractual and the rights are governed only by the terms of the contract, no writ or order can be issued under Article 226 of the Constitution of India so as to compel the authorities to remedy a breach of contract pure and simple. -4- W.P.(C) No.34841 of 2022 4. In **State of Kerala v. M.K. Jose [(2015) 9 SCC 433]** the Apex Court was dealing with a case in which the respondent had earlier challenged the order of termination of contract before the High Court by filing in W.P.(C)No.22541 of 2013. That writ petition ended in dismissal. He filed W.A.No.1912 of 2013. The Division Bench, by the judgment dated 24.02.2014, allowed that writ appeal. The Division Bench, on the basis of the report of the Advocate Commission, came to the conclusion that the order of termination was founded on erroneous facts, inasmuch as the competent authority had opined that more than 50% of the work remained to be done. The Division Bench opined that, as there was a factual defect, which was evident from the report of the Advocate Commission, the order of termination of the contract is liable to be quashed. After quashing the said order, the Division Bench directed the Superintending Engineer, Public Works Department (Roads and Bridges) to consider and dispose of the matter afresh after affording the contractor an opportunity of being heard. It also directed that the Commission's report and the Engineer's report and the accounts shall be produced by the Contractor before the -5- W.P.(C) No.34841 of 2022 competent authority, who shall take the same into account before taking a final decision in the matter. The State and the official respondents took up the matter before the Apex Court. The Apex Court, after referring to the law laid down in **Jain Plastics and Chemicals Ltd. [(2002) 1 SCC 216] and Ganga Enterprises [(2003) 7 SCC 410]** , reiterated that a writ court should ordinarily not entertain a writ petition under Article 226 of the Constitution of India if there is a breach of contract involving disputed questions of fact. The High Court appointed a Commission to collect the evidence, accepted the same without calling for objections from the respondent, and quashed the order of termination of the contract. The Apex Court observed that the procedure adopted by the High Court is quite unknown to the exercise of powers under Article 226 in a contractual matter. 5. In **M.K. Jose [(2015) 9 SCC 433]** the Apex Court noticed that in **ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd. [(2004) 3 SCC 553]** a Two-Judge Bench after referring to various judgments as well as the pronouncement in **Gunwant Kaur v. Municipal** -6- W.P.(C) No.34841 of 2022 **Committee, Bhatinda [(1969) 3 SCC 769]** and **Century Spinning and Manufacturing Company Ltd. v. Ulhasnagar Municipal Council [(1970) 1 SCC 582]** granted the relief as the facts were absolutely clear from the documentary evidence brought which pertain to interpretation of certain clauses of contract of insurance. The issue that had arisen in **ABL International** was that an instrumentality of a State was placing a different construction on the clauses of the contract of insurance and the insured was interpreting the contract differently. The Court thought it apt, merely because something is disputed by the insurer, it should not enter into the realm of disputed questions of fact. In fact, there was no disputed question of fact, but it required interpretation of the terms of the contract of insurance. Similarly, if the materials that come on record from which it is clearly evincible, the writ court may exercise the power of judicial review. 6. The learned Standing Counsel for Travancore Devaswom Board would point out that a similar contention raised by another Kuthaka holder for conducting cloak room and stall at Pamba and Sabarimala for the year 1197 ME (2021-22) was considered by this Court in the judgment -7- W.P.(C) No.34841 of 2022 dated 08.06.2022 in W.P.(C)No.18537 of 2022. The said writ petition ended in dismissal. In paragraph 15 of that judgment, this Court dealt with the request made by the petitioner therein as follows; “15. In case any amount is legally due from the petitioner towards refund of EMD and other security deposits, referred to in Ext.P3 representation dated 29.11.2021 and also the subsequent representations referred to in relief No.(vi), it is for the petitioner to pursue those representations before respondents 3 and 4 and it cannot be a ground for defaulting payment of the balance bid amount in terms of the tender conditions in Ext.P1 notification, in respect of Kuthaka item No.115 for conducting cloak room and stall at Pamba, for the year 1197ME. The said dispute cannot be resolved in a writ petition filed under Article 226 of the Constitution of India, in view of the law laid down by the Apex Court in **M.K.Jose [(2015) 9 SCC 433]** .” 7. In the instant case, the petitioner is seeking an order directing the respondents to adjust the amount due to him, as reflected in the list appended to Ext.P2 information dated 06.09.2022, against the auction amount to be deposited by him, as he had successfully auctioned Hotel No.8 at Pilgrim Centre No.3, which is item No.14 in Ext.P4 list of auction items dated 28.09.2022. -8- W.P.(C) No.34841 of 2022 8. Admittedly, in terms of the tender conditions, the petitioner, who is the highest bidder, has to remit 50% of the auction amount for the kuthaka item in question, immediately after confirmation of the auction and he has to remit the balance bid amount, within the time limit stipulated in the tender conditions, which cannot be adjusted against the amounts stated to have been due to him in respect of the contract workers referred to in the list appended to Ext.P2. 9. In view of the law laid down in the decisions referred to supra, we find that the petitioner is not entitled to the relief sought for in this writ petition. In such circumstances, this writ petition fails and the same is accordingly dismissed. No order as to costs. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** AV/2/11 -9- W.P.(C) No.34841 of 2022 ## **`APPENDIX OF WP(C) 34841/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1 ``` ``` TRUE COPY OF THE RTI APPLICATION FILED BY THE PETITIONER DATED 1/9/2022 UNDER THE RIGHT TO INFORMATION ACT. ``` ``` Exhibit P2 TRUE COPY OF THE INFORMATION NUMBER RTI-16/2022 PROVIDED BY THE PUBLIC INFORMATION OFFICER OF THE TRAVANCORE DEVASWOM BOARD WITH THE COVERING LETTER DATED 6/9/2022. ``` ``` Exhibit P3 ``` ``` TRUE COPY OF THE GENERAL CONDITIONS FOR PARTICIPATING IN TENDER VIDES ROC.53/22/SAB DATED 10-8-2022. ``` ``` Exhibit P4 TRUE COPY OF THE LIST OF AUCTION ITEMS VIDE ROC NO.53/22/SABA. DATED 28-9- 2022. ``` ``` Exhibit P5 ``` ``` TRUE COPY OF THE SAID REPRESENTATION DATED 28.10.2022. ```