Giju P Vijayan and others v. Travancore Devaswom Board and others; Ravi Kumar K.R. and others v. Travancore Devaswom Board and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 22[ND] DAY OF JUNE 2021 / 1ST ASHADHA, 1943 WP(C) NO. 13525 OF 2020** ## **PETITIONERS:** - **1 GIJU P VIJAYAN, AGED 38 YEARS S/O.VIJAYAN PILLAI, PANIKKAMANNIL,RANNI,PERUNADU, PATHANAMTHITTA DISTRICT.** - **2 BIJUKUMAR,AGED 40 YEARS S/O.KOMALAN,CHARIVUKALAYIL HOUSE,** - **KUMBAZHA.P.O, PATHANAMTHITTA DISTRICT.** - **3 BHASKARAN,AGED 69 YEARS S/O.KOCHUMANI,HARIG TRADING COMPANY, POLLACHI.** - **4 GOPAKUMAR.R,AGED 33 YEARS S/O.RAMAKRISHNA KURUP,PLAVILAKIZHAKKETHIL, PANAYIL.P.O,PALLICKAL,NOORANADU, ALAPUZHA DISTRICT.** - **5 HAKIM,AGED 51 YEARS S/O.ALIYARUKUNJU,MALIYEKKAL VADAKATHIL, NEAR M.S.M.H.S.S,KAYAMKULAM,ALAPPUZHA DISTRICT.** - **6 OMANAKUTTAN,AGED 64 YEARS S/O.PRABHAKARAN,VALLIATHU, SOORANADU NORTH.P.O. KOLLAM DISTRICT.** W.P.(C)Nos.13525 & 16933 of 2020 2 - **7 VISHNU.V.S,AGED 41 YEARS, S/O.SUKUMARAN, VELITHANTHUKUNNEL HOUSE, ARAVINDAM APARTMENT,PADINJARE NADA, GURUVAYUR,THRISSUR DISTRICT.** **BY ADVS.P.HARIDAS SRI.BIJU HARIHARAN SRI.R.B.BALACHANDRAN SRI.RENJI GEORGE CHERIAN SRI.P.C.SHIJIN** ## **RESPONDENTS:** - **1 THE TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY,OFFICE OF THE TRAVANCORE DEVASWOM BOARD,NANTHANCODE, KOWDIAR.P.O, THIRUVANANTHAPURAM,PIN-695003.** - **2 THE COMMISSIONER,TRAVANCORE DEVASWOM BOARD, OFFICE OF THE TRAVANCORE DEVASWOM BOARD,NANTHANCODE, THIRUVANANTHAPURAM,PIN-695003.** - **3 THE EXECUTIVE OFFICER, TRAVANCORE DEVASWOM BOARD,SABARIMALA SANNIDHANAM,SANNIDHANAM.P.O,PIN-689662.** **BY ADV SRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.06.2021, ALONG WITH WP(C).16933/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)Nos.13525 & 16933 of 2020 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 22[ND] DAY OF JUNE 2021 / 1ST ASHADHA, 1943 WP(C) NO. 16933 OF 2020** ## **PETITIONERS:** - **1 RAVI KUMAR K.R., AGED 56 YEARS S/O.RAGHAVAN NAIR, KOODAKAVIL HOUSE, PERUNADU P.O.,PERUNADU VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT-689 711.** - **2 CHACKO SAMUEL, AGED 48 YEARS** **S/O.N.C.SAMUEL, NEDUMANNIL HOUSE, MANDIRAM P.O., RANNI VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT-689 672.** - **3 RATEESH A.V., AGED 40 YEARS S/O.VENU, AMBALATHUNKAL HOUSE, THULAPALLY P.O., KOLLAMULA VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT-668 510.** - **4 RAJEEV VARGHESE, AGED 37 YEARS S/O.VARGHESE, CHEENKALLIL (H), MOOLAKKAYAM, KOLLAMULA VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT-686 510.** **BY ADVS.MANU RAMACHANDRAN M.KIRANLAL R.RAJESH (VARKALA) T.S.SARATH SAMEER M NAIR** W.P.(C)Nos.13525 & 16933 of 2020 4 ## **RESPONDENTS:** - **1 THE TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM DISTRICT-695 003, REP BY ITS SECRETARY.** - **2 THE SECRETARY, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM DISTRICT-695 003,** - **3 THE COMMISSIONER TRAVANCORE DEVASWOM BOARD,NANTHANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM DISTRICT-695 003,** - **4 THE EXECUTIVE OFFICER, SABARIMALA DEVASWOM, TRAVANCORE DEVASWOM BOARD, PAMPA THRIVENI P.O., PATHANAMTHITTA DISTRICT-689 662.** **BY ADV G.BIJU, SC FOR TDB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.06.2021, ALONG WITH WP(C)NO.13525/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)Nos.13525 & 16933 of 2020 5 ## **JUDGMENT** ## **Ravikumar, J.** Since these writ petitions involve common issues, they were heard together and are being disposed of by this common judgment. ## **W.P (C) No. 13525/2020** 2. The petitioners in this writ petition are the licensees/ kuttakas who auction purchased the right to conduct various business at Sabarimala Sannidhanam and Pampa for the period from 11.11.2019 to 31.10.2020. According to the petitioners, due to the onset of COVID19 pandemic and supervening events, they could not carry out the business from 13.03.2020. Therefore, the contract has become frustrated and in the said circumstances, the petitioners requested the Travancore Devaswom Board (TDB) to take steps to permit them to continue the business for a further term as a grace period or to refund the amount proportionate to the days of business they lost consequent to the frustration of contract. Since the TDB did not take any action on their representations, they have filed this writ petition mainly for the following relief:- “(a) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction commanding W.P.(C)Nos.13525 & 16933 of 2020 6 respondents to consider and pass orders on Exhibits P2 to P8 (a) after hearing the respective petitioners and to refund an amount proportionate/equivalent to the licence fee of 72 days reckoning that the total licence fee remitted by each of them are for 142 days.” ## **W.P. (C) No. 16933/2020** 3. The petitioners in this writ petition are the successful bidders in the tender floated by the TDB auctioning the rights to conduct various business activities at Sabarimala Devaswom for the period from 11.11.2019 to 31.10.2020. 4. According to the petitioners, the maximum business days available for them during the one year period from 11.11.2019 to 31.10.2020 are 139 days during which the Sabarimala temple opens for pilgrimage. However, the petitioners got the opportunity to conduct business only during the Mandala-Makara Vilakku pooja and monthly pooja of February, 2020, i.e., for a period of 70 days and thereafter due to COVID-19 Pandemic and the lock down declared by the Government, there was restriction for pilgrimage and there was absolutely no business. The petitioners contend that, even if restrictions are lifted, due to the threat of COVID-19 Pandemic, there is no possibility that pilgrimage will resume to its normalcy before 31.10.2020, the period W.P.(C)Nos.13525 & 16933 of 2020 7 upto which the petitioners are granted the right to do business at Sabarimala by TDB. According to the petitioners, after entering into contract with the TDB, due to the unprecedented pandemic situation, they could not do business and the said situation in a 'Force Majeure' event has caused the frustration of the contract. The petitioners have approached the TDB with Ext. P7 representation requesting to make good the loss sustained by them; but the TDB has not taken any action on their request. Accordingly, the petitioners have approached this Court with this writ petition seeking the following reliefs:- “1).To issue a writ of mandamus, or any appropriate writ or direction directing the respondents 1 to 4 to extend the petitioner's right to conduct the business pursuant to Exhibit P1 and as per Ext. P2 to Ext.P6 (a) for the 2020-2021pilgimage at Sabarimala; 2). Issue a writ of mandamus, or any appropriate writ or direction directing the respondents 1 to 3 to consider the Exhibit P7 representation within a time frame fixed by this Hon'ble Court;” 5. Heard the learned counsel for the petitioners and the learned standing counsel for the TDB. 6. The case of the petitioners in both the writ petitions is that, after the award of contract to the petitioners for the conduct of business activities at Sabarimala, Pampa and Nilakkal by the TDB, they W.P.(C)Nos.13525 & 16933 of 2020 8 could not do any business due to restrictions in pilgrimage on account of the outbreak of COVID-19 pandemic and the contract became frustrated. Accordingly, they have approached this Court seeking issuance of writ of mandamus to extend their right to conduct the business during the next season. The petitioners in W.P. (C) No. 13525/2020 has also sought for writ of mandamus for refund of the amount proportionate to the days of business they lost consequent to the frustration of contract. 7. It is trite that the existence of a legal right in the petitioners and the corresponding legal duty on the respondents are the conditions precedent for issuance of a writ of mandamus. The petitioners who conducted business on becoming successful bidders pursuant to tenders floated by TDB cannot claim any legal right to conduct business in Sabarimala. The business activities are permissible in Sabarimala only when the shrine is open and subject to conditions and restrictions. Hence, the petitioners cannot contend that the TDB has got legal duty to permit them to conduct business during the next Mandala-Makaravilakku season as well. The right to conduct the permitted business activities in Sabarimala each year is being given after issuing tender notifications and conducting auction, in accordance W.P.(C)Nos.13525 & 16933 of 2020 9 with prescribed procedures. The auction will be conducted only in respect of business activities specifically mentioned in the notification and such business would be permitted to be conducted only in specified places. Only successful bidders will be getting such rights, that too, only for the period specifically allowed and such rights will not be available for the next season unless they could succeed in the next year's auction. According to the petitioners, the maximum business days available for them during the one year period from 11.11.2019 to 31.10.2020 are 139 days during which the Sabarimala temple opens for pilgrimage. However, the petitioners got the opportunity to conduct business only during the Mandala-Makara Vilakku pooja and monthly pooja of February, 2020, i.e., for a period of 70 days and thereafter due to COVID-19 Pandemic and the lock down declared by the Government, there was absolutely no business. Therefore, the prayer is to permit them to continue the business for a further term in the next pilgrim season as a grace period or to refund the amount proportionate to the days of business they lost. In this context, it is apposite to refer to the decision of the Hon'ble Apex Court in **Travancore Devaswom Board** _**v**_ **. Thanath International** reported in **(2004) 13 SCC 44** . Paragraphs 12 and 13 of the said decision read as follows:- W.P.(C)Nos.13525 & 16933 of 2020 10 “12.The law on the subject is well settled. In the case of Alopi Parshad & Sons Ltd. v. Union of India this Court has held that the Contract Act, 1872 does not enable a party to a contract to ignore the express covenants thereof. It is held that the Contract Act does not permit a party to claim payment of consideration for performance of contract at rates different from the stipulated rates, on some vague plea of equity. It is held that in the performance of a contract, one often faces, in the course of carrying it out, a turn of events which are not anticipated e.g. an abnormal rise or fall in prices, sudden depreciation of currency, an unexpected obstacle to execution or the like. It is held that these do not affect the bargain that has been made. It is held that there is no general liberty reserved to the courts to absolve a party from liability to perform his part of the contract, merely because on account of an uncontemplated turn of events, the performance of the contract has become onerous. It is held that compensation quantum meruit is awarded when the price is not fixed by the contract. It is held that for work done or services rendered pursuant to the terms of contract, compensation quantum meruit cannot be awarded. 13. The above law fully governs this case. In this case the contract between the parties laid down the price. Clause 2 specifically provides that this price was to remain firm till May 1991. As stated above, the circumstances enumerated by the respondents were not such as frustrated the contract. Merely because performance had become more onerous was not a ground for non performance or for claiming enhancement of price.” 8. Thus, it is trite law that in respect of concluded contract, the parties are governed by the terms of contract. W.P.(C)Nos.13525 & 16933 of 2020 11 Subsequent events cannot be a reason for the petitioners to contend that ignoring the specified terms in the contract, right should be extended, even though no such right is actually flowing from the concluded contract. Further, once a contract is entered into, it certainly involves certain uncertainties. As observed in **Thanath International** (supra), merely because performance had become more onerous is not a ground for non performance or for claiming enhancement of price. Therefore, COVID-19 pandemic and the restrictions imposed and the consequent inability to conduct business cannot be a ground for extension of the petitioners' right to conduct business during the next pilgrim season or for getting refund of license fee. 9. The learned counsel for the petitioners contended that on account of the restrictions placed on pilgrimage due to COVID-19 pandemic, it was impossible for the petitioners to perform their part of the contract and the contract has become frustrated. According to the petitioners, after entering into contract with the TDB, due to the unprecedented pandemic situation, they could not do business and the said situation in a 'Force Majeure' event has caused the frustration of the contract. The contract entered into by the 1[st] petitioner in W.P (C) W.P.(C)Nos.13525 & 16933 of 2020 12 No. 13525/2020 with the TDB has been produced as Ext. P9 in the said writ petition and on going through the same, it is seen that there is no 'Force Majeure' clause in the contract between the parties. “Force Majeure' is a contractual remedy and the terms and conditions constituting 'Force Majeure' clause are to be fixed and incorporated in the contract at the time of execution of the contract. Then the question is whether the contract stands frustrated attracting the second part of section 56 of the Contract Act. It is to be noted that the period of contract is from 11.11.2019 to 31.10.2020. There was no restrictions on account of pandemic during the period from 11.11.2019 till 24.03.2020 and the petitioners were doing business as per the contract during the said period. It is also pertinent to note that the petitioners have no case that after lifting the lock down and when the temples were opened for devotees they could not conduct business for the rest of the period of contract. Therefore, the petitioners cannot contend that the contract has become impossible of performance and has become frustrated. The frustration of contract happens when the execution of contract is wholly impossible. The supervening events have not made the execution of contract wholly impossible, though it might have made the performance of contract more onerous and difficult. Therefore, the petitioners cannot contend W.P.(C)Nos.13525 & 16933 of 2020 13 that there is frustration of contract. 10. Once a contract is entered into, unforeseeable events are likely to happen. An experienced contractor who enters into contract with eyes wide open, may sometimes incur loss. Sometimes, in some contracts, he may also earn handsome profits. The reason that contractors could earn good profit during a season do not fasten on them any liability to pay any portion of the profits to the Board and vice versa. The petitioners are not entitled to refund of licence fee. In the circumstances, the prayer of the petitioners to extend their right to conduct business for the next season or for refund of license fee cannot be allowed and the writ petitions are accordingly dismissed. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.HARIPAL Judge** spc/TKS W.P.(C)Nos.13525 & 16933 of 2020 14 ## **APPENDIX OF WP(C) 13525/2020** ## **PETITIONERS' EXHIBITS** - **EXHIBIT P1 TRUE COPY OF THE NOTICE INVITING TENDER INCLUDING TENDER CONDITIONS (NIT NO.R.O.C.53/19/SAB.DATED 23/09/2019** - **EXHIBIT P2 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE RESPONDENTS DATED 15.06.2020** - **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER BEFORE THE RESPONDENTS DATED 15.06.2020** **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 3RD PETITIONER BEFORE THE RESPONDENTS DATED 15.06.2020** **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 4TH PETITIONER BEFORE THE RESPONDENTS DATED 15.06.2020** **EXHIBIT P6 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 5TH PETITIONER BEFORE THE RESPONDENTS DATED 15.06.2020** **EXHIBIT P7 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 6TH PETITIONER BEFORE THE RESPONDENTS DATED 15.06.2020** **EXHIBIT P8 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 7TH PETITIONER BEFORE THE RESPONDENTS DATED 15.06.2020 EXHIBIT TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE P8(a) 7TH PETITIONER BEFORE THE RESPONDENTS DATED 23.06.2020** W.P.(C)Nos.13525 & 16933 of 2020 15 **EXHIBIT P9 TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN 1ST PETITIONER AND THE 3RD RESPONDENT DATED 11.11.2019.** W.P.(C)Nos.13525 & 16933 of 2020 16 ## **APPENDIX OF WP(C) 16933/2020** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE TENDER NOTIFICATION VIDE ROC 53/19/SAB. DATED 23/09/2019 ALONG WITH RELEVANT PAGES OF TABLE OF RIGHTS INTENDED TO BE AUCTIONED THEREIN.** **EXHIBIT P2 THE TRUE COPY OF THE CERTIFICATE CONFERRING RIGHT DESCRIBED IN SERIAL NO.180 OF EXT.P1 OVER THE 1ST PETITIONER.** **EXHIBIT P3 THE TRUE COPY OF THE CERTIFICATE CONFERRING RIGHT DESCRIBED IN SERIAL NO.206 OF EXT.P1 OVER THE 2ND PETITIONER.** **EXHIBIT P3(a) THE TRUE COPY OF THE CERTIFICATE CONFERRING RIGHT DESCRIBED IN SERIAL NO.207 OF EXT.P1 OVER THE 2ND PETITIONER.** - **EXHIBIT P4 THE TRUE COPY OF THE CERTIFICATE CONFERRING RIGHT DESCRIBED IN SERIAL NO.175 OF EXT.P1 OVER THE 3RD PETITIONER.** **EXHIBIT P4(a) THE TRUE COPY OF THE CERTIFICATE CONFERRING RIGHT DESCRIBED IN SERIAL NO.190 OF EXT.P1 OVER THE 3RD PETITIONER.** **EXHIBIT P5 THE TRUE COPY OF THE CERTIFICATE CONFERRING RIGHT DESCRIBED IN SERIAL NO.189 OF EXT.P1 OVER THE 4TH PETITIONER.** **EXHIBIT P6 THE TRUE COPY OF THE RECEIPT OF AUCTION AMOUNT PAID BY HIM FOR SERIAL NO.185** **EXHIBIT P6(a) THE TRUE COPY OF THE RECEIPT OF AUCTION AMOUNT PAID BY HIM FOR SERIAL NO.197.** W.P.(C)Nos.13525 & 16933 of 2020 17 **EXHIBIT P7 THE TRUE COPY OF THE REPRESENTATION DATED 10/8/20 PREFERRED BY THE PETITIONERS.** **EXHIBIT P7(a) THE TRUE COPY OF THE PRINT OUT OF EMAIL DATED 12/08/2020 THROUGH WHICH EXT.P7 COMPLAINT WAS FORWARDED TO RESPONDENTS** ## **TKS**