K. Satheesh Kuriyanappallil v. Travancore Devaswom Board and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 29[TH] DAY OF AUGUST 2022 / 7TH BHADRA, 1944 W.P.(C) NO. 10249 OF 2007** ## **PETITIONER:** **K.R.SATHEESH KURYANAPPALLIL HOUSE, ULLANNOOR P.O., KULANADA, PATHANAMTHITTA DISTRICT.** **BY ADVS. SRI.N.D.PREMACHANDRAN SRI.D.AJITHKUMAR SMT.A.K.SAJITHA** ## **RESPONDENTS:** - **1 TRAVANCORE DEVASWOM BOARD, REPRESENTED ITS SECRETARY, THIRUVANANTHAPOURAM.** - **2 THE CHIEF ENGINEER, TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPOURAM.** - **3 KODUMAN GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, KODUMAN.** **BY ADV SRI.K.N.VENUGOPALA PANICKER, SC, TDB SRI G.BIJU- STANDING COUNSEL-TDB** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 08.08.2022, THE COURT ON 29.08.2022 DELIVERED THE FOLLOWING:** 2 W.P.(C) No.10249 of 2007 ## **JUDGMENT** ## Ajithkumar, J. The petitioner was entrusted with the work of improvement and development of the temple tank of Sakthimangalam Ganapathi temple coming under the Punalur Group of the 1[st] respondent. He was nominated to do the work. The estimated amount of the work was Rs.9,85,000/-. At the request of the petitioner, the security deposit was waived by the 1[st] respondent. The 3[rd] respondent-Panchayat had undertaken to contribute Rs.3 lakhs towards the estimated amount. The petitioner did the work in part. He then demanded escalation of the rate. But the request was rejected as per Ext.P4. Therefore, the work was got done through a different contractor and the balance work was finished by spending an amount of Rs.5,85,853/- by the 3[rd] respondent using the funds sanctioned by the District Collector. The cost of the work done by the petitioner was quantified and recorded in the measurement book. Its cost was Rs.2,85,000/-. The petitioner demanded payment of the 3 W.P.(C) No.10249 of 2007 same, for which he submitted Ext.P5 representation. He also had filed Ext.P6 request. Since the respondents did not heed his demand, he filed W.P.(C) No.676 of 2006 before this Court. As per Ext.P7 judgment, the 1[st] respondent was directed to take a decision on the representation of the petitioner within two months. So far the amount due to the petitioner was not paid. Hence, the petitioner filed this Writ Petition under Article 226 of the Constitution of India seeking a writ of mandamus directing the respondents 1 and 2 to pay the amount due to the petitioner along with interest at the rate of 12% per annum. 2. The 1[st] respondent filed a counter affidavit disputing the liability of respondents 1 and 2 to make any payment to the petitioner. They maintain that this Writ Petition is not maintainable. Further, it is contended that the petitioner had abandoned the work. Despite issuing several notices, he did not resume the work. Therefore, the contract was terminated and the remaining work was got done through a different contractor. It is true that the work undertaken by 4 W.P.(C) No.10249 of 2007 the petitioner was measured and its cost was valued as Rs.2,53,779/-. The 2[nd] respondent in fact had sanctioned such a bill. But the said amount is not liable to be paid by this respondent. An amount of Rs.3 lakhs was agreed to be contributed by the 3[rd] respondent. Therefore, the work done by the petitioner, whom the 3[rd] respondent had nominated for the work, has to be paid by it, and not by respondents 1 and 2. It was specifically recited in Ext.R1(a) agreement that the amount due to the petitioner would be paid by the Devaswom Board. Hence, the petitioner cannot claim any amount from these respondents. 3. The 3[rd] respondent did not choose to file any counter affidavit. 4. Heard the learned counsel appearing for the petitioner and the learned Standing Counsel for the Travancore Devaswom Board. 5. It is beyond dispute that the petitioner, as a nominee, had carried out a part of the work of improvement and development of the temple tank of Sakthimangalam 5 W.P.(C) No.10249 of 2007 Ganapathi Temple. The work was awarded to the petitioner for an amount of Rs.9,55,801/-. The selection notice issued by the 1[st] respondent in that regard is Ext.P2. The petitioner has executed only a portion of the work and respondents 1 and 2 would admit that the cost of the work he had executed is Rs.2,53,779/-. The learned counsel appearing for the petitioner would contend that having admitted that fact, there is no justification for the respondents not to make the payment and in the circumstances, it is only appropriate for this Court to direct the respondents to make payment of that amount along with interest to the petitioner. 6. In **State of Kerala v. Anil [2002 (1) KLT 371]** , a Full Bench of this Court held that it cannot be absolute terms that a Writ Petition is not maintainable in contractual matters, including where the contractors seek enforcement of the obligation on the part of the State to pay the bill amounts admitted by the State. It is observed that all the activities of the State are in public interest and for public good. Where the State is a party to a contract, the same involves a public law 6 W.P.(C) No.10249 of 2007 element, and it is appropriate to say that a public duty on the part of the State is involved in the matter. The only limitation of the High Court in such matters is self-imposed restrictions while exercising the jurisdiction under Article 226 of the Constitution of India. 7. It is true that, here, the parties are not at dispute regarding the cost of the work undertaken by the petitioner. Respondents 1 and 2 would allege that the petitioner had abandoned the work midway and did not oblige repeated directions issued to him to complete the work. It was in such circumstances, that the contract was terminated and the work was got done through another contractor. 8. All the same, respondents 1 and 2 categorically would contend that they have no liability to pay the cost of the work done by the petitioner in terms of the conditions in Ext.R1(a) agreement. The petitioner is not a party to Ext.R1(a). It was executed between the Secretary of the 3[rd] respondent and the Executive Engineer under respondents 1 and 2. It is stipulated in clause (1) that the work done by the 7 W.P.(C) No.10249 of 2007 petitioner was already measured and the contribution to be paid by the 3[rd] respondent-Panchayat would be treated as the cost of such work. It is seen from Exts.P1 and P2 that the petitioner was nominated by the 3[rd] respondent to undertake the work in question and the same was accepted by the 1[st] respondent. Now the claim of the petitioner is to direct respondents 1 and 2 to make payment of the money due to him. When the work was done by the petitioner as a nominee of the 3[rd] respondent and as per Ext.R1(a), respondents 1 and 3 had entered into an agreement to the effect that the contribution to be made by the 3[rd] respondent would be treated as the cost of the work already undertaken, there arises a serious dispute interse the respondents as to who among them has to make payment to the petitioner. Such a disputed question of fact cannot be resolved in a Writ Petition in exercise of the powers of this Court under Article 226 of the Constitution of India. 9. In **Popatrao Vyankatrao Patil v. State Of Maharashtra [(2020) 19 SCC 241],** the Apex Court held,- 8 W.P.(C) No.10249 of 2007 “11. It could thus be seen, that even if there are disputed questions of fact which fall for consideration but if they do not require elaborate evidence to be adduced, the High Court is not precluded from entertaining a petition under Article 226 of the Constitution. However, such a plenary power has to be exercised by the High Court in exceptional circumstances. The High Court would be justified in exercising such a power to the exclusion of other available remedies only when it finds that the action of the State or its instrumentality is arbitrary and unreasonable and, as such, violative of Article 14 of the Constitution of India. In any case, in the present case, we find that there are hardly any disputed questions of facts.” (underline supplied) 10. The petitioner seeks to issue a writ directing respondents 1 and 2 to pay the amount due to it, but they categorically deny the obligation. Their definite contention is that it is the 3[rd] respondent, who is liable to make payment. In order to resolve that question, recording and appreciation of evidence is required, which is within the realm of the civil court. In such circumstances, we are of the view that this is not a case where this Court can exercise its plenary power under Article 226 of the Constitution of India in order to issue 9 W.P.(C) No.10249 of 2007 a direction as prayed by the petitioner. Hence, this Writ Petition is dismissed; however, leaving open the factual and legal contentions with respect to the liability to pay the amount claimed by the petitioner. ## **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 10 W.P.(C) No.10249 of 2007 ## **APPENDIX OF WP(C) 10249 OF 2007** ## **PETITIONER EXHIBITS** |**EXHIBIT P1**|**COPY OF THE DECISION OF THE KODUMAN**|**COPY OF THE DECISION OF THE KODUMAN**| |---|---|---| ||**GRAMA**<br>**PANCHAYAT**<br>**NOMINATING**|**THE**| ||**PETITIONER.**|| |**EXHIBIT P2**|**COPY OF THE SELECTION NOTICE ISSUED TO**|| ||**THE PETITIONER BY THE 1ST RESPONDENT.**|| |**EXHIBIT P3**|**COPY OF THE REQUEST LETTER **|**DATED**| ||**08.09.1999.**|| |**EXHIBIT P4**|**COPY**<br>**OF**<br>**COMMUNICATION**|**DATED**| ||**28.07.2001.**|| |**EXHIBIT P5**|**COPY**<br>**OF**<br>**REPRESENTATION**|**DATED**| ||**14.05.2004.**|| |**EXHIBIT P6**|**COPY OF REQUEST DATED 11.11.2005.**|| |**EXHIBIT P7**|**COPY OF THE JUDGMENT DATED 09.01.2006**|| ||**IN WPC 676 OF 2006 OF THE HIGH COURT.**|| |**EXHIBIT P8**|**COPY OF THE REPRESENTATION SENT ON**|| ||**BEHALF OF THE PETITIONER **|**DATED**| ||**23.01.2006.**|| |**RESPONDENT EXHIBITS**||| |**EXHIBIT R1(A)**|**COPLY OF THE AGREEMENT **|**DATED**| ||**24.09.2002.**||