Amrit Prasad v State of Kerala and Others (WP(C) Nos. 33169/2011 & 30844/2011)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** ## **WEDNESDAY, THE 15[TH] DAY OF DECEMBER 2021 / 24TH AGRAHAYANA, 1943** ## **WP(C) NO. 33169 OF 2011** ## **PETITIONER:** MR.AMRIT PRASAD, AGED 25 YEARS ALTIUS, NO. 17, RAJ BHAWAN ROAD, BANGALORE-1. BY ADVS. M.K.DAMODARAN (SR.) O.V.BINDU GILBERT GEORGE CORREYA NISHIL.P.S. P.K.VIJAYAMOHANAN VIZZY GEORGE KOKKAT J.VIMAL ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF TOURISM, THIRUVANANTHAPURAM-695001. 2 NEHRU TROPHY BOAT RACE SOCIETY, REPRESENTED BY ITS SECRETARY, REVENUE DIVISIONAL OFFICER, ALAPPUZHA, REVENUE DIVISIONAL OFFICE, ALAPPUZHA-688001. 3 THE DISTRICT COLLECTOR, ALAPPUZHA AND CHAIRMAN, NEHRU TROPHY BOAT RACE SOCIETY, COLLECTORATE, ALAPPUZHA-688001. 4 THE REVENUE DIVISIONAL OFFICER, ALAPPUZHA AND SECRETARY, NEHRU TROPHY BOAT RACE SOCIETY, REVENUE DIVISIONAL OFFICE, ALAPPUZHA-688001. 5 THE JURY OF APPEALS, NEHRU TROPHY BOAT RACE-2011, REPRESENTED BY ITS CHAIRMAN, THE DISTRICT COLLECTOR, ALAPPUZHA-688001. 6 T.S. KALADHARAN, WP(C) Nos.33169 & 30844 of 2011 2 OWNER AND SPONSOR, DEVAS CHUNDAN VALLOM, DEVAS FARM HOUSE MAHADEVIKADU P.O., KARTHIKAPPALLY, ALAPPUZHA-690555. 7 KARICHAL CHUNDAN VALLOM SAMITHY (REG. NO. 48/70), REPRESENTED BY ITS PRESIDENT MR. A. SANTHOSHKUMAR, KARICHAL, PAYAPADU P.O., HARIPAD-690556, ALAPPUZHA. BY ADVS. S.GANESH KUMAR SMT.VIDYA KURIAKOSE, GOVERNMENT PLEADER C.S.MANU S.K.PREMRAJ P.K.PRIYA S.SREEKUMAR (SR.) K.V.SREE VINAYAKAN S.VINODKUMAR T.K.VIPINDAS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.12.2021, ALONG WITH WP(C).30844/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) Nos.33169 & 30844 of 2011 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 15[TH] DAY OF DECEMBER 2021 / 24TH AGRAHAYANA, 1943** ## **WP(C) NO. 30844 OF 2011** ## **PETITIONERS:** - 1 T.S.KALADHARAN, OWNER AND SPONSER, DEVAS CHUNDAN VALLAM (DEVAS SNAKE BOAT), DEVAS FARM HOUSE, MAHADEVIKADU.P.O., KARTHIKAPALLY, ALAPPUZHA-690555. - 2 ABRAHAM KOSHY, MEMBER, EXECUTIVE COMMITTEE & TEAM MEMBER OF JESUS BOAT CLUB, KOLLAM, RESIDING AT MOONNUTHYCAKL HOUSE, EDATHUA.P.O., ALAPPUZHA-690555. BY ADVS. SRI.K.RAMAKUMAR (SR.) SRI.C.S.MANU SMT.SMITHA GEORGE ## **RESPONDENTS:** - 1 THE DISTRICT COLLECTOR, ALAPPUZHA (THE CHAIRMAN OF THE NEHRU TROPHY BOAT RACE, SOCIETY), ALAPPUZHA-688001. - 2 THE REVENUE DIVIONAL OFFICER, ALAPPUZHA(THE SECRETARY, NEHRU TROPHY BOAT RACE, SOCIETY), ALAPPUZHA-688001. - 3 THE JURY OF APPEALS IN RELATION TO NEHRU TROPHY BOAT RACE REPRESENTED BY ITS, CHAIRMAN,(THE DISTRICT COLLECTOR), ALAPPUZHA, PIN-688001. - 4 THE KARICHAL CHUNDAN VALLOM (KARICHAL SNAKE BOAT) SAMITHY, REPRESENTED BY ITS 4 WP(C) Nos.33169 & 30844 of 2011 PRESIDENT, SHRI. A SANTHOSHKUMAR, KARICHAL, PAYIPADY.P.O., PIN-680556, ALAPPUZHA DISTRICT. 5 THE SUPERINTENDENT OF POLICE ALAPUZHA-688001.(MEMBER, JURY COMMITTEE, NEHRU, TROPHY BOAT RACE, ALAPUZHA.) 6 THE ADDITIONAL DISTRICT MAGISTRATE, ALAPPUZHA-688001(MEMBER, JURY COMMITTEE,, NEHRU TROPHY BOAT RACE, ALAPPUZHA). 7 THE DISTRICT GOVERNMENT PLEADER ALAPUZHA-688001.(MEMBER, JURY COMMITTEE, NEHRU, TROPHY BOAT RACE, ALAPPUZHA). 8 ADDL R8: MR.AMRIT PRASAD, AGED 26 YEARS, ALTIUS NO-17, RAJBHAVAN ROAD, BANGLORE – I(AS PER ORDER DATED 17.01.2012 IN IA 625/12) BY ADVS. GOVERNMENT PLEADER SRI.ANEESH JAMES SRI.M.K.DAMODARAN SR. SRI.P.MARTIN JOSE SRI.S.SREEKUMAR SR. SRI.VIZZY GEORGE KOKKAT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.12.2021, ALONG WITH WP(C).33169/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) Nos.33169 & 30844 of 2011 5 ## **P.V.KUNHIKRISHNAN, J** **------------------------------------W.P.(C)Nos.33169 and 30844 of 2011 ------------------------------------Dated this the 15[th] day of December,2021** ## **JUDGMENT** **These two writ petitions are filed challenging the order dated 02.11.2011 of the Jury of Appeal constituted in connection with the Nehru Trophy Boat Race. 59[Th] Nehru Trophy Boat Race was held on 13.08.2011 at Punnamada lake in Alappuzha District. The petitioner in W.P.(C) No.33169/2011 was the captain of Snake boat 'Muttael Kainakari' of the United Boat club, Kainakari. The 1[st] petitioner in W.P.(C)No.30844/2011 was the owner and sponsor of Devas Chundan Vellam (Snake boat). The petitioners in W.P. (C)No.30844/2011 are aggrieved because they were black listed from participating in Nehru Trophy Boat Race as per the impugned order passed by the Jury of Appeal and as** 6 WP(C) Nos.33169 & 30844 of 2011 **far as the petitioner in W.P.** **(C)No.33169/2011 is concerned, he is aggrieved because point No.3 framed in the impugned order of the Jury is not considered and discussed by the Jury of Appeal. The common point raised by both the petitioners is that the order is passed without giving an opportunity of hearing.** **2. Heard the learned Senior counsel Sri.K.Ramkumar appearing for the petitioners in W.P.(C)No.30844/2011 and the learned counsel appearing in W.P.(C)No.33169/2011. I also heard the learned Senior counsel Sri.S.Sreekumar for the contesting respondents in W.P.(C)Nos.30844/2011 and 33169/2011 and the learned Government Pleader appeared for the official respondents.** **3. The learned Senior counsel Sri.K.Ramkumar submitted that the impugned order is to be set aside for the simple** WP(C) Nos.33169 & 30844 of 2011 7 **reason that, it is an order passed without hearing the affected parties. On the other hand the learned Senior counsel Sri.S.Sreekumar submitted that, it is an admitted fact that the petitioners violated Clause 3 of Ext.P1 regulations. The learned Senior counsel also submitted that, admittedly these participants have not used the prescribed uniform. In such situation, the team is disqualified and that is why the impugned order is passed without hearing the petitioners. The learned Senior counsel also relied on the judgments of this Court in** _**Binoy V.R. and Others v. Vegetable and Fruit Promotion Council and Another [2007 (3) KHC 433]**_ **and the judgment of the Division Bench of this Court in** _**Thrissur District Petroleum Dealers Association v. State of Kerala and Others [2009(4)KHC 700]**_ **. In** _**Binoy's case(supra)**_ **, the learned senior counsel relied on paragraph 8 of the** WP(C) Nos.33169 & 30844 of 2011 8 **judgment and in** _**Thrissur District Petroleum Dealers Association's case (supra)**_ **, the senior counsel relied on paragraph 9 of the judgment.** **4. Admittedly in both these cases, the Jury of Appeal passed the order without giving a personal hearing to the affected parties. I perused the impugned order passed by the Jury of Appeal. In the impugned order there is also a black listing of the petitioners in W.P.(C)No.30844/2011, if the petitioners have not complied certain conditions. Such an order is passed without hearing the affected parties. In such situation, according to me, the decisions relied by the Senior counsel is not applicable. There is nothing in that order to show that an opportunity of hearing is given to the affected parties before passing such an order. Admittedly, the petitioner in W.P.(C)No.30844/2011 is black listed in** WP(C) Nos.33169 & 30844 of 2011 9 **participating in Nehru Trophy Boat Race, as per the order passed by the Jury of Appeal, ofcourse, only on non compliance of certain conditions mentioned in it . This order is passed without giving an opportunity of hearing to the petitioners. This Court in** _**Jose M.K. v. Secretary, Public Works Department and Others [2021 (6) KHC 375]**_ **observed like this:** _“15. In Kulja Industries Limited v. Chief General Manager, W.T. Project, BSNL (2013 KHC 4798: 2013 (4) KHC SN 17: 2013 (12) SCALE 423: AIR 2014 SC 9 : (2014) 14 SCC 731) the Apex Court held that the power to blacklist a contractor whether the contract be for supply of material or equipment or for the execution of any other work whatsoever is inherent in the party allotting the contract. There is no need for any such power being specifically conferred by Statute or reserved by contractor. That is because 'blacklisting' simply signifies a business decision by which the party affected by the breach decides not to enter into any contractual relationship with the party committing the breach. Between two private parties the right to take any such decision is absolute_ WP(C) Nos.33169 & 30844 of 2011 10 _and untrammelled by any constraints whatsoever. The freedom to contract or not to contract is unqualified in the case of private parties. But any such decision is subject to judicial review when the same is taken by the State or any of its instrumentalities. This implies that any such decision will be open to scrutiny not only on the touchstone of the principles of natural justice but also on the doctrine of proportionality. A fair hearing to the party being blacklisted thus becomes an - essential pre condition for a proper exercise of the power and a valid order of blacklisting made pursuant thereto. The order itself being reasonable, fair and proportionate to the gravity of the offence is examinable by a Writ Court. The legal position on the subject is settled by a long line of decisions rendered by the Apex Court starting with Erusian Equipment and Chemicals Ltd. v. State of West Bengal (1975 KHC 463 : 1975 (1) SCC 70 : AIR 1975 SC 266 : 1975 (1) ALR 22) where the Apex Court declared that blacklisting has the effect of preventing a person from entering into lawful relationship with the Government for purposes of gains and that the authority passing any such order was required to give a fair hearing before passing an order blacklisting a certain entity.”[emphasis supplied]_ WP(C) Nos.33169 & 30844 of 2011 11 **5. Moreover, it is fundamental that, when an order is passed against a party, an opportunity of hearing should be given to that party. Admittedly, no opportunity is given to the petitioners in these writ petitions before passing such an order.** **6. The learned Government Pleader on the other hand submitted that, no opportunity need to be given to the petitioners in the facts and circumstances of this case because the Jury decided an issue which is not disputed by the petitioners. According to the learned Government Pleader, the petitioners are not in a proper uniform which is a mandatory provision. The learned Government Pleader also relied on the judgment of the Apex Court in** _**Aligarh Muslim University and Others v. Mansoor Ali Khan [2000 (7) SCC 529]**_ **and the judgment in** _**Asok Kumar Sonkar v. Union of India and Others [2007(4)SCC**_ 12 WP(C) Nos.33169 & 30844 of 2011 _**54]**_ **. The learned Government Pleader** **submitted that the black listing is conditional and that the ground for allowing the appeal is based on an admitted fact. Whatever that may be, when a serious order like black listing in participating in an event is ordered, it is the duty of the Jury of Appeal to give an opportunity of hearing to the petitioners. According to me, there is nothing wrong in giving an opportunity of hearing to the parties before passing such orders. Moreover, the issue No.3 framed in the order of the Jury of Appeal is not addressed by the Jury of Appeal as contended by the petitioner in W.P.(C)No.33169/2011. Therefore, without expressing any opinion on merit, the impugned order in these writ petitions can be set aside and the matter can be remanded back to the Jury of Appeal for reconsideration after giving an opportunity of hearing to all the affected** WP(C) Nos.33169 & 30844 of 2011 13 ## **parties.** **Therefore these writ petitions are** **allowed in the following manner:** **i) Ext.P5 order in W.P.(C)No.30844/2011 (Ext.P4 in W.P.(C)No.33169/2011) is quashed.** **ii) The petitioners in these writ petitions and the party respondents will appear before the District Collector, Alappuzha on 03.01.2022.** **iii)The 3[rd] respondent in W.P.(C) No.30844/2011 (5[th] respondent in W.P.(C) No.33169/2011) is directed to reconsider the matter after giving an opportunity of hearing to the petitioners in these writ petitions and all other affected parties. The Jury of Appeal will consider point No.3 framed in Ext.P4 in W.P.(C)No.33169/2011 also while deciding the matter.** **iv) The appellate authority will serve a copy of the appeal filed by the appellant to the petitioners herein and other affected** WP(C) Nos.33169 & 30844 of 2011 14 **parties before deciding the appeal.** **v) The Jury of Appeal will decide the matter, as expeditiously as possible, at any rate, within two months from the date of the first appearance of the parties as directed by this Court.** **vi) All the contentions raised by the petitioners and other contesting respondents are left open.** **Sd/P.V.KUNHIKRISHNAN JUDGE** **DM** WP(C) Nos.33169 & 30844 of 2011 15 ## **APPENDIX OF WP(C) 33169/2011** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE COMPETITION RULES FRAMED FOR THE NEHRU TROPHY BOAT RACE-2011, DATED 25/07/2011. EXHIBIT P2 TRUE COPY OF THE PETITION DATED 14/08/2011 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 22/08/2011 SENT BY THE PETITIONER TO RESPONDENT NOS. 3 AND 4. EXHIBIT P4 TRUE COPY OF THE DECISION DATED 02/11/2011 OF THE JURY OF APPEAL. EXHIBIT P5 TRUE COPY OF THE MATHRUBHUMI NEWSPAPER DATED 14/08/2011 WITH PHOTOGRAPHS OF THE SNAKE BOAT FINAL RACE. EXHIBIT P6 THE TRUE COPY OF THE MALAYALA MANORAMA NEWSPAPER DATED 14/08/2011 WITH PHOTOGRAPHS OF THE SNAKE BOAT FINAL RACE. EXHIBIT P7 TRUE COPY OF THE COMPETITION DIRECTIVES ISSUED TO CAPTAINS AND MEMBERS OF COMPETING TEAMS. EXHIBIT P8 THE TRUE COPY OF THE G.O.(RT) NO.5992/2011/TSM DATED 4/8/2011 SANCTIONING RS.5/- LAKHS AS CASH AWARD TO BE DISTRIBUTED TO THE WINNERS OF NEHRU TROPHY BOAT RACE EXHIBIT P9 THE TRUE COPY OF THE UTILIATION CERTIFICATE ISSUED BY SECRETARY NEHRU BOAT RACE SOCIETY & REVENUE DIVISIONAL OFFICER DATED 26/7/2011 EXHIBIT P10 THE TRUE COPY OF THE LETTER ISSUED BY CHAIRMAN NEHRU TROPHY BOAT RACE 16 WP(C) Nos.33169 & 30844 of 2011 SOCIETY & DISTRICT COLLECTOR, ALAPPUZHA ADDRESSED TO THE DIRECTOR, TOURISM DEPARTMENT DATED 21/7/2011 WP(C) Nos.33169 & 30844 of 2011 17 ## **APPENDIX OF WP(C) 30844/2011** PETITIONER EXHIBITS EXHIBIT P1 TRUE EXTRACT OF THE RELEVANT PORTIOIN OF THE RULES FRAMES FOR CONDUCTING NEHRU TROPHY BOAT RACE BY THE BOAT RACE SOCIETY. EXHIBIT P2 TRUE COPY OF APPEAL DATED NIL SUBMITTED BY THE KARICHAL CHUNDAN VALLAM SAMITHI BEFORE THE JURY OF APPEALS. EXHIBIT P3 TRUE COPY OF COMPLAINT NO.107 OF 2011 DATED 18.8.2011 SUBMITTED BY THE FREEDOM BOAT CLUB BEFORE THE DISTRICT COLLECTOR, ALAPPUZHA. EXHIBIT P4 TRUE COPY OF NEWS ITEM APPEARED IN THE MATHRUBOOMI DAILY DATED 18.11.2011. EXHIBIT P5 TRUE COPY OF ORDER DATED 2.11.11 PASSED BY THE JURY OF APPEALS IN RELATION TO THE NEHRU TROPHY BOAT RACE. RESPONDENTS EXHIBITS : NIL **==> picture [95 x 11] intentionally omitted <==** **==> picture [81 x 8] intentionally omitted <==**