Dasan v. Kerala State Electricity Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 25TH DAY OF NOVEMBER 2016/4TH AGRAHAYANA, 1938** ## **WP(C).No. 20537 of 2016 (N)** **----------------------------** **PETITIONER:** **--------------------** **DASAN, 125(5/247), CHORAKKANDIKKUNNU COLONY, PADINJARETHARA P.O, WAYANAD DISTRICT.** **BY SRI.N.DHARMADAN,SENIOR ADVOCATE ADV. SMT.D.P.RENU** **RESPONDENTS:** **-------------------------** **1. KERALA STATE ELECTRICITY BOARD, VIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY IST SECRETARY, PIN-695 004.** ## **2. DIRECTOR,** - **KERALA HYDEL TOURISM CENTRE, VIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004** ## **3. ASSISTANT ENGINEER,** **TECHNICAL COMMITTEE, BANASURA HYDEL TOURISM CENTRE, BANASURA SAGAR DAM, THARIODE NORTH P.O, WAYANAD -673 575.** **R1 BY SRI.R.SUDHEER GANESH KUMAR,SC SRI.K.M.SATHYANATHA MENON,SC,KSEB SRI.SAJEEVKUMAR K.GOPAL,SC,KSEB R2 & R3 BY SRI.P.C.SASIDHARAN, SC,** **SRI.P.SREEKUMAR, SC, KERALA HYDEL TOURISM CENTRE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-11-2016, THE COURT ON 25-11-2016 DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 20537 of 2016 (N) -----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **----------------------------------------** - **P1 TRUE COPY OF ORDER DTD 10/6/2016 ISSUED BY THE 2ND RESPONDENT** - **P2 TRUE COPY OF NOTIFICATION (RELEVANT PORTION) DTD 17/4/2015 BY 2ND RESPONDENT** - **P3 TRUE COPY OF AGREEMENT DTD 31/5/2015 EXECUTED BY PETITIONER AND 2ND RESPONDENT.** - **P4 TRUE COPY OF RECEIPT DTD 29/6/2015 BY 3RD RESPONDENT** - **P5 TRUE COPY OF RECEIPT DTD 6/6/2016 BY 3RD RESPONDENT** - **P6 TRUE COPY OF REMINDER DTD 9/6/2016 BY PETITIONER TO 2ND RESPONDENT** - **P7 TRUE COPY OF REPRESENTATION DTD 4/6/2016 BY PETITIONER TO THE HON'BLE MINISTER FOR KSEB.** - **P8 TRUE COPY OF AGREEMENT DTD 17/7/2015 EXECUTED BY SRI.CHERIAN AND 2ND RESPONDENT** - **P9 TRUE COPY OF AGREEMENT DTD 16/9/2015 EXECUTED BY SRI.ABDULLA AND 2ND RESPONDENT.** - **P10 TRUE COPY OF THE APPLICATION DATED 16/12/2015 FILED BY THE PETITIONER.** - **P11 TRUE COPY OF THE APPLICATION DATED 3/3/2016 FILED BY THE PETITIONER.** - **P12 TRUE COPY OF THE RECEIPT DATED 1/11/2016 ISSUED BY 3RD RESPONDENT** ## **RESPONDENT(S)' EXHIBITS:** **------------------------------------------** - **R2(A) COPY OF THE FINANCIAL BID SUBMITTED BY SRI.DEVIS JOSEPH** - **R2(B) COPY OF THE LETTER OF SRI.DEVIS JOSEPH ADDRESSED TO THIS RESPONDENT** - **R2(C) COPY OF THE LETTER WITHDRAWING THE QUOTING OF SUJESH.** **/TRUE COPY/** **P.S.TO JUDGE** **sts** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.20537 of 2016 ----------------------------------------------Dated this the 25[th] day of November, 2016** ## **JUDGMENT** This writ petition is filed seeking to set aside Clause 9 in Ext.P1, which refers to the decision of the Director to invite fresh tenders with the object of denying renewal of licence for the operation of the parking area of 'Kerala Hydel Tourism Centre, Banasura Sagar Unit', Wayanad, to the petitioner, and seeking to declare that petitioner is entitled to get renewal of the licence to operate the parking area under the above Tourism Centre, for the next two years, since he had duly complied with all procedural formalities for getting renewal of the licence as per the agreement, and for other related reliefs. Material facts for the disposal of the writ petition are as follows: 2. Petitioner belongs to Scheduled Tribe community. He is residing in an Adivasi area in Wayanad District. According to the petitioner, his family is solely depending on his meagre income derived from the operation and management of the parking area attached to the Kerala Hydel 2 **W.P.(C) No.20537 of 2016** Tourism Centre, Banasura Sagar Unit. Pursuant to the notification issued by the 2[nd] respondent inviting tenders for the operation of parking business in the year 2015, petitioner submitted tender along with others. It was accepted by the 2[nd] respondent and agreement was executed in this behalf, evident from Ext.P3. The relevant portion of the tender notification is produced as Ext.P2. On execution of the agreement, petitioner has deposited the total amount of Rs.7,15,011/- as security, evident from Ext.P4 receipt. As per the agreement, petitioner is bound to pay Rs.65,001/- every month as licence fee for the parking area, and he had regularly deposited the said amount without any default, and the latest receipt dated 06.06.2016 is produced as Ext.P5. 3. That apart, it is contended, petitioner had already applied for renewal of the licence before the expiry of the period now fixed under the above agreement. According to the petitioner, Ext.P6 reminder application dated 09.06.2016 was also submitted. Thereafter, Ext.P7 representation was also filed by the petitioner before the Minister for Electricity. However, the same were not considered by the respective statutory authorities. That apart, it is contended, due to the **W.P.(C) No.20537 of 2016** 3 change of Government, respondents who are having leniency towards the present ruling party are denying the benefit of renewal and taking urgent steps to invite fresh tender for the grant of this facility of operation of parking area. It is also stated, in the case of grant of licence in respect of similarly situated persons, i.e. 'CAFETERIA', club building etc., same is awarded for a period of 36 months from March 2015, evident from Exts.P8 and P9. Therefore, according to the petitioner, the action of the respondents is arbitrary, discriminatory, _malafide_ and unfair. It is in these circumstances, the writ petition is filed seeking appropriate reliefs. 4. Second respondent has filed a counter affidavit stating that, 2[nd] respondent is a Charitable Society registered under the provisions of Act XII of 1955, and contends that being a society registered under the provisions of Act XII of 1955, no writ petition is maintainable against the society. Moreover, it is stated, society is not discharging any sovereign function, and that it is a society found for the purpose of effective utilization of water based tourism potential in the natural surroundings of the hydel project areas of Kerala and preserve the ecology of hydel project areas. It is also 4 **W.P.(C) No.20537 of 2016** contended, 2[nd] respondent society is not a 'State' within the meaning of Article 12 of the Constitution of India. 5. That apart, it is contended, there is no averment or allegation in the writ petition with respect to violation of any of the rights of the petitioner, leave alone, fundamental right consequent to any act of the 2[nd] respondent. That apart, it is submitted, the grievance raised in the writ petition is purely within the domain of contractual relationship between the petitioner and the society, and therefore no writ is maintainable unless it is pleaded and established that there is any act on the part of the respondents in violation of any constitutional rights. 6. The predominant contention advanced by the 2[nd] respondent is, petitioner even though is a member of the Scheduled Tribe community, one Davis is looking after all the affairs of the conduct of business. The said Davis Joseph is none else, but was a person who submitted tender pursuant to the public notice issued by the 2[nd] respondent, who has quoted an amount of Rs.1,00,009/- for operating the parking space, evident from Ext.R2(a). However, the said Davis withdrew from his quotation, evident from Ext.R2(b). The next highest **W.P.(C) No.20537 of 2016** 5 bid was that of one Sujesh, who had quoted an amount of Rs.66,000/-, who also withdrew, evident from Ext.R2(c). It is the contention of the 2[nd] respondent, the letters are issued in similar lines and with same content and in the same form and in the natural course of things, there should have been a retender. But for reasons not disclosed from the files, the tender was confirmed in favour of the writ petitioner and that too, at the rate of Rs.65,001/- by the then person in the affairs of the society. According to the 2[nd] respondent, petitioner is none other than a _binami_ of Sri. Davis. A contention is also raised to the effect, the said Davis is a local leader of the then ruling front State Government, and later, on enquiry, it is understood that petitioner is an agricultural worker of Sri. Davis. That apart, it is stated, even according to the petitioner, since the petitioner did not have sufficient means, petitioner had availed a loan from the Urban Co-operative Bank, Kalpetta, through the said Davis. The sum and substance of the contention is, petitioner is not the real contractor who is executing the contract work and he is only a _binami_ of the aforesaid Davis. 6 **W.P.(C) No.20537 of 2016** 7. It is also stated, agreement executed between the petitioner and the 2[nd] respondent does not contain any renewal clause entitling the petitioner to seek renewal as of right. On the other hand, Clause 15 of Ext.P3 agreement specifically says, on expiry of the said term or period or license or earlier termination thereof, the Licensee shall hand over vacant and peaceful possession of the Licensed premises to the Licensor in the same condition which the premises exist subject to normal wear and tear. It is also contended, the occupation of the premises after the termination will be deemed to be that of a trespasser. Yet another contention raised is that the amount for which the licence was granted in the year 2015 itself was at a very low rate and that too, after withdrawal of the person who quoted more than Rs.1,00,000/-, which according to the petitioner, is the person who actually carrying on with the contract awarded in the name of the petitioner. Because of increase of tourism potential in Wayanad, the business of parking in areas is substantially increased, and it was under the said circumstances, a conscious decision was taken not to renew the licence. It is also the case of the 2[nd] respondent that, only on mutual agreement, licence can be renewed, and **W.P.(C) No.20537 of 2016** 7 the respondent has taken a positive decision not to renew the licence and hence the petitioner cannot rely on the tender conditions as well. That apart, it is stated, in re-auction, there will be substantial increase in the licence fee, which is a fact experienced by the 2[nd] respondent. It is also stated, in Mattupetti, the licence fee for parking space was allotted for an amount of Rs.87,100/-. However, when it was re-auctioned, the amount fetched was Rs.1,75,555/- and in the said situation, there is every likelihood and fair possibility of increase of the amount in Banasura Sagar unit at Wayanad. That apart, it is stated, in the tourist centre 7 Tourist Boats are operating and is also having an amusement park with a museum and it is a spot liked by all. During Onam season, more than 14,000 persons visited the place on a day, evident from the gate collection details, which has gone up to Rs.10,000/- per day, and on holidays, it still went up. Therefore, it is the contention of the 2[nd] respondent, petitioner is not entitled to get any reliefs in the writ petition. 8. Petitioner has filed a reply affidavit, reiterating the stand adopted in the writ petition. According to the petitioner, petitioner has submitted Ext.P10 request on 16.12.2015 **W.P.(C) No.20537 of 2016** 8 seeking renewal, and thereafter on 03.03.2016 another application with stamp paper was submitted in the office, evident from Ext.P11. However, no decision was taken by the 2[nd] respondent. The contention raised by the 2[nd] respondent that the writ petition is not maintainable, is disputed and the nature and character of the 2[nd] respondent society, _vis-avis_ absence of sovereign functions, is traversed through by the petitioner. The specific allegation with respect to availing of loan by the petitioner through Davis from the Urban Cooperative Bank is not disputed. True, allegations raised against the petitioner connecting the said Davis is denied. It is admitted, Davis is working as a Manager of the petitioner and who is carrying out the day-to-day affairs. Therefore, it is contended, petitioner as of right is entitled to get renewal of the lease. 9. Heard learned Senior Counsel appearing for the petitioner, Sri. N.Dharmadan, learned Standing Counsel for respondent No.1, Sri. R. Sudheer Ganeshkumar, and Sri. P.C. Sasidharan, learned Standing Counsel appearing for the 2[nd] respondent, perused the documents and pleadings. 9 **W.P.(C) No.20537 of 2016** 10. The first question to be considered is, whether petitioner is entitled to get renewal of Ext.P3 agreement as of right. Clause 7.1 of Ext.P2, a portion of the tender notification, reads as follows: ## _“Renewal of Licence:_ _7.1. On successful completion of first year of the contract, i.e., from 1[st] May 2015 to 31.03.2016, and on the basis of mutual agreement between the licensor and the licensee, the license can be renewed for a further period of two more financial years from 1[st] April to 31[st] March on year to year basis at an increase of 10% of the licence fee every year subject to deposition of security deposit equivalent to 12 months of licence fee._ _7.2. The licensee will inform before 31[st] December of every year of his intention to renew the licence to the Director, KHTC in writing. If he fails to do so it will be presumed that he is not interested in renewing the licence and the licensor will be free to initiate the process of engagement of the new licence without any further correspondence._ _7.3. A fresh agreement and affidavit will be signed every year at the time of renewal of the licence before 1[st] April of the year”._ 11. On a reading of Clause 7.1, in my considered opinion, the same is not an automatic renewal since the provision is circumscribed by definite expression to mean that **W.P.(C) No.20537 of 2016** 10 the same can be done on the basis of mutual agreement between the licensor and the licensee at an increased rate of 10% of the licence fee. Moreover, yet another condition imposed as per Clause 7.2 is that the licensee shall inform the licensor before 31[st] December of every month of his intention to renew the licence to the Director and on violation, it will be presumed that he is not interested for renewing the licence. Therefore, in my considered opinion, in order to renew the licence, there should be a mutual agreement between the licensor and the licensee and if such an agreement is arrived at, then, the licence can be extended on an year to year basis from 1[st] April to 31[st] March at an increase of 10% of the licence fee. The tenor of the contentions and sequence of events will distinctively make it clear, there was no mutual agreement by and between the petitioner and the 2[nd] respondent to renew the licence. Therefore, in my considered opinion, on the basis of Clause 7.1, petitioner cannot insist, as of right, he is entitled to get the licence extended. True, petitioner might have issued letter seeking extension of licence period, evident from Ext.P10. However, it cannot be conclusively said that such a letter was forwarded by the petitioner due to the fact that in **W.P.(C) No.20537 of 2016** 11 the averments in the writ petition, no such contention is raised. Ext.P10 is produced only along with the reply affidavit filed by the petitioner. Moreover, since as per Clause 7.2, it is an imperative condition seeking extension, the same is a vital plea in the writ petition itself, which is absent. Petitioner has not cared to amend the writ petition, even though in the reply affidavit it is stated so. 12. In order to secure a relief under Article 226 of the Constitution of India, one should approach the Court with clean hands. Even though petitioner has disputed the allegations made by the 2[nd] respondent in the counter affidavit, against him, about the alliance with one Davis, who also participated in the tender and withdrew later, enough and more suspicious circumstances are available from the facts as well as the documents produced. The said Davis quoted an amount of Rs.1,00,009/-, however, he withdrew from the quote. But the contention of the petitioner in the reply affidavit is curious that the said Davis is working as the Manager of the petitioner looking after the affairs of the parking area. The allegation raised by the 2[nd] respondent, when considered along with the reply affidavit, creates grave suspicion in the mind of this 12 **W.P.(C) No.20537 of 2016** Court as to the _bonafides_ of the petitioner, in order to enjoy any special consideration, being a member of a Scheduled Tribe community. 13. Learned Senior Counsel for the petitioner has invited my attention to the judgment of the Apex Court in _**'Maa Binda Express Courier and another v. Northeast Frontier Railway and others**_ ' [AIR 2014 SC 390] and specifically to paragraph 8, wherein it is stated that award of a contract is essentially a commercial transaction which must be determined on the basis of consideration that are relevant to such commercial decision, which implies that terms subject to which tenders are invited are not open to judicial scrutiny, unless it is found that the same have been tailor made to benefit any particular tenderer or class of tenderers. It is also held therein that the authority inviting tenders can enter into negotiations or grant relaxation for _bonafide_ and cogent reasons, provided such relaxation is permissible under terms governing the tender process. 14. Learned Senior Counsel also invited my attention to the judgment of this Court in _**'Sobha George Adolfus v. State of Kerala'**_ [2016 (3) KLT 271] and specifically to 13 **W.P.(C) No.20537 of 2016** ## paragraph 19, which read thus: _“19. In modern deontology, most of the human rights are expressed in the political document as fundamental rights. To claim a right as a human right, one has to look at the moral condition of the interest related to human in the domain or space in which it is asserted. If such right has gained acceptance as a value in the social sphere or in the space in which it is claimed and treated as an essential pre-requisite for existence of human interest as a part of life the Court need not be hesitant to recognize such right. While interpreting Art.21 of the Constitution, the Court must bear in mind the duty of the court to give horizontal effect of value as the right to life has evolved through International Conventions, U.N. Resolutions etc. If those norms are compatible with domestic law, the Court is obliged to apply such values or 'norms' horizontally between private individuals. It is to be noted that the best interest of children has already become an accepted 'norm' under the Juvenile Justice (Care and Protection of Children) Act, 2015.”_ 15. Learned Senior Counsel has also drawn my attention to the judgment of the Apex Court in _**'People's**_ ## _**Union for Democratic Rights & Others. v. Union of India**_ _**& Others.**_ ' [AIR 1982 SC 1473], wherein the Apex Court had occasion to consider the rights that can be extended to weaker sections of the society. Therefore, it is the contention of the 14 **W.P.(C) No.20537 of 2016** learned Senior Counsel, applying all these principles, petitioner who belongs to lower level of the social strata, is entitled to be specially treated in order to bring him to the forefront of social relationship. It is also stated, in view of the said principles of Apex Court in _**'Maa Binda Express Courier and another'**_ cited _supra_ , _vis-a-vis_ Clause 7.1 of the licence condition, petitioner is entitled as of right for a negotiation and the approach of the 2[nd] respondent to extend such an opportunity to the petitioner is against the principles of law laid down thereunder. However, the contention raised by the 2[nd] respondent in respect of the maintainability of the writ petition is also addressed by learned Senior Counsel, contending that the 2[nd] respondent society is discharging a public function by inviting public tender to carry on the operation of the parking area and therefore the duty that is entrusted to the 2[nd] respondent is of a public nature, thus entitling the petitioner to maintain a writ petition against the 2[nd] respondent society. Learned Senior Counsel also pointed out from Exts.P1 and P2, it is clear that the property is belonging to the 1[st] respondent and therefore duty cast upon the 2[nd] respondent even though a society to discharge public functions. However, learned 15 **W.P.(C) No.20537 of 2016** counsel for the 2[nd] respondent submitted that there is no public function at all discharged by the 2[nd] respondent, much less, any sovereign function. 16. The question is, whether the petitioner is entitled for any right in order to extend the lease period, as of right. First of all, it is to be noted, Ext.P2 is a contract entered into by and between the petitioner and the 2[nd] respondent on specific terms and conditions. Clause 7.1 of Ext.P2 deals with renewal of lease, which shows, the renewal of lease can only be done after mutual agreement by and between the parties. The circumstances and sequence of events will reveal that there is no mutual agreement by and between the parties to deliberate on extension of lease period on such terms and agreement agreed upon by and between the parties. Moreover, as discussed above, petitioner has produced Ext.P10 letter only along with the reply affidavit. There is no pleading in the writ petition, petitioner has complied with clause 7.2 of Ext.P2 agreement, notifying the 2[nd] respondent that petitioner has interest to continue with the lease, even though a vague statement is made. Furthermore, a letter dated 09.06.2016 allegedly a reminder application is produced as Ext.P6. Taking **W.P.(C) No.20537 of 2016** 16 note of the specific provision contained under clause 7.2 of Ext.P2, Ext.P10 was the pivotal document, which is not produced along with the writ petition. Apart from all these, the factual circumstances and discussions show, carrying on the contract by the petitioner himself is a doubtful aspect, especially due to the fact that petitioner has admitted, Davis who participated in the tender, and has quoted the highest rate of Rs.1,00,009/- is retained by the petitioner as his manager for looking after the affairs. Specific contentions are made by the 2[nd] respondent in its counter affidavit that petitioner has secured loan from Urban Co-operative Bank through the said Davis. The said allegation is not disputed by the petitioner. Being a contract and since there is no illegality, arbitrariness or _malafides_ established against the 2[nd] respondent in the discharge of its duty, the maintainability of the writ petition itself is doubtful. All these circumstances lead me to the conclusion, petitioner is not entitled to get any reliefs as sought for, and also on the basis of the decisions of the Apex Court as well as this Court cited _supra,_ exercising the power of discretion under Article 226 of the Constitution of India. 17 **W.P.(C) No.20537 of 2016** Writ petition fails, accordingly it is dismissed. Sd/- **SHAJI P. CHALY JUDGE** St/17.11.2016