C.N. Unnikrishnan v. Guruvayoor Devaswom Managing Committee and Others

## **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 20[TH] DAY OF JUNE 2023 / 30TH JYAISHTA, 1945** **W.P.(C) NO. 15761 OF 2021** ## **PETITIONER:** ## **C.N.UNNIKRISHNAN,** **AGED 56 YEARS, S/O NARAYANAN, CHOLAYIL VEEDU, PORKKULAM, PAZHANJI, THRISSUR DISTRICT – 680542.** **BY ADVS. RAJIT LEKSHMI P. NAIR** ## **RESPONDENTS:** - **1 GURUVAYUR DEVASWOM MANAGING COMMITTEE GURUVAYOOR, CHAVAKKAD TALUK, THRISSUR DISTRICT680 101, REPRESENTED BY THE ADMINISTRATOR.** - **2 THE ADMINISTRATOR GURUVAYOOR DEVASWOM MANAGING COMMITTEE, GURUVAYOOR, CHVAKKAD TALUK, THRISSUR DISTRICT680101.** - **3 THE CHAIRMAN GURUVAYOOR DEVASWOM MANAGING COMMITTEE, GURUVAYUR, CHAVAKKAD TALUK, THRISSUR DISTRICT680 101.** - **BY ADV T.K.VIPINDAS, SC, GURUVAYUR DEVASWOM MANAGING COMMITTEE** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 20.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 W.P.(C) No.15761 of 2021 ## **JUDGMENT** ## P.G. Ajithkumar, J. The petitioner is the contractor for the conduct of “Pay & Use Comfort Station and Shops & Parking Lot” at South Nada of Sree Krishna Temple, Guruvayur for the period from 01.10.2019 to 30.09.2020. The tender price was Rs.26,17,778/-. An agreement in that regard was executed by the petitioner with the Guruvayur Devaswom Managing Committee on 28.09.2019. The petitioner was performing the aforesaid contract. While so, COVID-19 pandemic spread out and the Temple was closed down for a long period. The devotees were not coming to the Temple and in such circumstances, the petitioner requested on 24.08.2020 to the 2[nd] respondent to extend the period of contract for a period of six months. The petitioner further requested the 2[nd] respondent o waive the payment for the extended period, considering the loss he had sustained. The respondent accordingly extended the period for a period of six months from 01.10.2020. Later, taking into account continuation of the lockdown and the loss occasioned to the petitioner on account of the same, he requested the respondent either to 3 W.P.(C) No.15761 of 2021 relieve him from the contract or to extend the period for a further period of six months, waiving the fees payable to the respondents. The 2[nd] respondent as per the letter dated 31.03.2021 the period of contract was extended for a further period of six months from 01.04.2021. The petitioner was informed that his request for waiving the fees was under deliberation. However, the petitioner was later informed that he should make the payment for the extended period in proportion to the tender amount for the period from 01.10.2019 to 30.09.2020. Ext.P6 is the letter dated 30.06.2021 in that regard. The petitioner, aggrieved by the same, has filed this Writ Petition under Article 226 of the Constitution of India, seeking the following reliefs; - “i) To issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent to refund 50% of the amount deposited by the petitioner in respect of the tender for 'Pay & Use Comfort Station', Shop and Parking lot, at the North Nada of the renowned Guruvayoor Sri Krishna Temple - ii) Declare that the respondents are eligible to collect the proportionate amount in respect of the tender for 'Pay & Use Comfort Station', Shop and Parking lot, at the North Nada of the renowned Guruvayoor Sri Krishna Temple, only for the period the temple was opened and functioning normally.” 4 W.P.(C) No.15761 of 2021 2. The respondents have filed a counter-affidavit, wherein the contentions of the petitioner are refuted. It is further contended that the dispute involved in this Writ Petition is not liable to be entertained since the parties had agreed to as per the agreement dated 28.09.2019 that the dispute, if any, between them in regard to the contract in question shall be subject to the jurisdiction of the courts coming under the local area of the District Court, Thrissur. 3. Heard the learned counsel appearing for the petitioner and the learned Standing Counsel for the Guruvayur Devaswom Managing Committee, for the respondents. 4. In terms of the order of this Court the learned Standing Counsel for the respondents made available for our perusal the files relating to the contract in question. The learned counsel appearing for the petitioner was also permitted to peruse the said file. The learned Standing Counsel for the Guruvayur Devaswom Managing Committee would point out that when the agreement entered into between the parties in respect of the contract in question contains a clause that the disputes relating to the contract shall be agitated before the courts within the local area of 5 W.P.(C) No.15761 of 2021 the District Court, Thrissur, the petitioner is not entitled to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. The petitioner does not dispute that the agreement he had executed contains such a clause. 5. In **Commissioner of Income Tax v. Chhabil Dass Agarwal [(2014) 1 SCC 603]** the Apex Court held that non-entertainment of a writ petition under Article 226 of the Constitution of India when an efficacious alternative remedy is available is a rule and self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India, despite the existence of alternative remedy. However, High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same, unless he has made out an exceptional case warranting such interference or there exists sufficient ground to invoke the extraordinary jurisdiction under Article 226. 6 W.P.(C) No.15761 of 2021 6. In **Authorised Officer, State Bank of Travancore v. Mathew K.C. [(2018) 3 SCC 85]** the Apex Court reiterated that the discretionary jurisdiction under Article 226 of the Constitution of India is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution of India ought not to be entertained if alternative statutory remedies are available, except in cases falling within the well-defined exceptions as observed in **Chaabil Dass Agarwal** , i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question or in defiance of the fundamental principles of judicial procedure or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice. After referring to the law laid down in **Thansingh Nathmal v. Superintendent of Taxes [AIR 1964 SC 1419]** and **Titaghur Paper Mills Company Ltd. v. State of Orissa [(1983) 2 SCC 433]** the Apex Court held that High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved 7 W.P.(C) No.15761 of 2021 person or the statute under which the action complained of contains a mechanism for redressal of grievance. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 7. In **Thansingh Nathmal** a Constitution Bench of the Apex Court held that the jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily, the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an 8 W.P.(C) No.15761 of 2021 elaborate examination of evidence to establish the right to enforce for which the writ is claimed. The High Court does not, therefore, act as a Court of appeal against the decision of a Court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed and will leave the party applying to it to seek resort to the machinery so set up. 8. In **Balkrishna Ram v. Union of India [(2020) 2 SCC 442]** one of the issues raised before the Apex Court was whether an appeal against an order of a single judge of a High Court deciding a case related to an Armed Forces personnel pending before the High Court is required to be transferred to the Armed Forces Tribunal or should be heard by the High Court. The Apex Court held that sub-section (1) of Section 14 of the Armed Forces Tribunal Act, 2007 clearly provides that 9 W.P.(C) No.15761 of 2021 the Armed Forces Tribunal will exercise powers of all Courts except the Supreme Court or High Court exercising jurisdiction under Article 226 and Article 227 of the Constitution of India. Section 34 is very carefully worded. It states that 'every suit', or 'other proceedings' pending before any Court including a High Court immediately before the establishment of the Tribunal shall stand transferred on that day to the Tribunal. The Legislature has clearly not vested the Armed Forces Tribunal with the power and jurisdiction of the High Court to be exercised under Article 226 of the Constitution. There can be no manner of doubt that the High Court can exercise its writ jurisdiction even in respect of orders passed by the Armed Forces Tribunal. Since an appeal lies to the Supreme Court against an order of the Armed Forces Tribunal, the High Court may not exercise their extraordinary writ jurisdiction because there is an efficacious alternative remedy available but that does not mean that the jurisdiction of the High Court is taken away. In a given circumstance, the High Court may and can exercise its extraordinary writ jurisdiction even against the orders of the High Court [sic: Armed Forces Tribunal]. 10 W.P.(C) No.15761 of 2021 9. In **Balkrishna Ram** the Apex Court held that the principle that the High Court should not exercise its extraordinary writ jurisdiction when an efficacious alternative remedy is available, is a rule of prudence and not a rule of law. The Writ Courts normally refrain from exercising their extraordinary power if the petitioner has an alternative efficacious remedy. The existence of such remedy however does not mean that the jurisdiction of the High Court is ousted. At the same time, it is a well settled principle that such jurisdiction should not be exercised when there is an alternative remedy available - **Union of India v. T.R. Varma [AIR 1957 SC 882]** . The rule of alternative remedy is a rule of discretion and not a rule of jurisdiction. Merely because the Court may not exercise its discretion, is not a ground to hold that it has no jurisdiction. There may be cases where the High Court would be justified in exercising its writ jurisdiction because of some glaring illegality committed by the Armed Forces Tribunal. One must also remember that the alternative remedy must be efficacious and in case of a Non-Commissioned Officer (NCO), or a Junior Commissioned Officer (JCO); to expect such a person to approach the Supreme Court in every case may not 11 W.P.(C) No.15761 of 2021 be justified. It is extremely difficult and beyond the monetary reach of an ordinary litigant to approach the Supreme Court. Therefore, it will be for the High Court to decide in the peculiar facts and circumstances of each case whether it should exercise its extraordinary writ jurisdiction or not. There cannot be a blanket ban on the exercise of such jurisdiction because that would effectively mean that the Writ Court is denuded of its jurisdiction to entertain such writ petitions which is not the law laid down in **L. Chandra Kumar v. Union of India [(1997) 3 SCC 262]** . 10. Here, the dispute between the parties is purely of civil in nature. It pertains to the contractual obligation that flows from the agreement dated 28.09.2019. The parties mutually agreed about the forum for resolution of the dispute as well. Therefore, the petitioner can well avail the recourse as provided in the agreement for redressal of his grievance. This Writ Petition, therefore, is not maintainable and it is accordingly dismissed as not maintainable, however, leaving open all legal and factual questions involved in the matter and also without prejudice to the right of the petitioner to avail the remedy as provided in the said agreement. 12 W.P.(C) No.15761 of 2021 The Registrar (Judicial) to return the files kept in the safe custody to the learned Standing Counsel for the Guruvayur Devaswom Managing Committee. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 13 W.P.(C) No.15761 of 2021 ## **APPENDIX OF WP(C) 15761/2021** ## **PETITIONER EXHIBITS** **EXHIBIT P1 A TRUE COPY OF THE REPRESENTATION DATED 24.08.2020 EXHIBIT P2 A TRUE COPY OF THE LETTER DATED 24.10.2020 OF THE 2ND RESPONDENT EXHIBIT P3 A TRUE COPY OF THE REPRESENTATION DATED 05.11.2020** **EXHIBIT P4 A TRUE COPY OF THE ABOVE REPRESENTATION DATED 23.03.2021 EXHIBIT P5 A TRUE COPY OF THE LETTER OF THE 2ND RESPONDENT DATED 31.03.2021** **EXHIBIT P6 A TRUE COPY OF THE LETTER DATED 30.06.2021 OF THE 2ND RESPONDENT** **RESPONDENT EXHIBITS** **EXHIBIT R1(A) TRUE COPY OF THE RESOLUTON OF THE GURUVAYOOR DEVASWOM MANAGING COMMITTEE DATED 09.10.2020. EXHIBIT R1(B) TRUE COPY OF THE RESOLUTION NO.28 DATED 26.04.2021.**