Madhu M.B. v. State of Kerala & Others

1 W.P.(C)No.41729 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE G. GIRISH ``` ``` MONDAY, THE 18[TH] DAY OF DECEMBER 2023/27TH AGRAHAYANA, ``` ``` 1945 ``` **==> picture [166 x 10] intentionally omitted <==** ``` PETITIONER: ``` ``` MADHU M.B., AGED 50 YEARS, S/O. BHASKARN MAVUNKAL, KARUNAPURAM KALLAR, IDUKKI DISTRICT, PIN - 685552 ``` ``` BY ADVS. ``` ``` V.PHILIP MATHEWS ASHISH MATHEW JOHN ``` ``` RESPONDENTS: ``` - **`1 STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 THE DISTRICT COLLECTOR, SECOND FLOOR, COLLECTORATE, PATHANAMTHITTA, PIN - 689645`** - **`3 TRAVANCORE DEVASOM BOARD, DEVASWOM HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, PIN - 695003`** - **`4 DEVASWOM COMMISSIONER, TRAVANCORE DEVASOM BOARD, DEVASWOM HEAD QUARTERS, NANTHANCODE,`** 2 W.P.(C)No.41729 of 2023 ## **`THIRUVANANTHAPURAM, PIN - 695003`** - **`5 EXECUTIVE OFFICER, SABARIMALA, TRAVANCORE DEVASWOM BOARD, PATHANAMTHITTA, PIN - 689662`** - **`6 SUB INSPECTOR OF POLICE, NILAKKAL POLICE STATION, KONNI, PATHANAMTHITTA, PIN - 689662`** - **`7 RANNI-PERUNNADU GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY RANNII-PERUNNADU GRAMA PANCHAYAT OFFICE RANNI PERUNNADU P.O, PATHANAMTHITTA, PIN - 689711`** ## **`OTHER PRESENT:`** ``` SRI S.RAJMOHAN – SR. GOVERNMENT PLEADER ``` ``` SRI G.BIJU - STANDING COUNSEL- TRAVANCORE DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P.(C)No.41729 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner, who is a Kuthaka holder in Nilakkal Devaswom for Kuthaka items Nos.219 and 222 in the list of Kuthaka items, which forms part of the re-e-tender notification dated 22.09.2023 issued by the 5[th] respondent Executive Officer, Sabarimala, subject to Ext.P1 general and special conditions, has filed this writ petition under Article 226 of the Constitution of India, seeking a declaration that persons permitted by the Travancore Devaswom Board and Ranni-Perunad Panchayat alone are entitled to sell or offer any articles including food items to pilgrims and to do business in Sannidhanam, Pamba and Nilakkal; a writ of mandamus commanding respondents 2 to 7 to take necessary steps to ensure that there is no sale or offer of articles to Sabarimala pilgrims in Sannidhanam, Pamba and Nilakkal except by persons having permission from the Travancore Devaswom Board; a writ of mandamus commanding Travancore Devaswom Board to take necessary steps to ensure 4 W.P.(C)No.41729 of 2023 that there is no sale or offer of articles including food items of Sabarimala pilgrims in violation of Ext.P1 general and special conditions issued by the 5[th] respondent Executive Officer; and a writ of mandamus commanding the 3[rd] respondent Travancore Devaswom Board to consider and take appropriate action on Ext.P4 representation dated 28.11.2023, within a time limit to be specified by this Court, after hearing the petitioner. 2. Going by the averments in the writ petition, the petitioner participated in the tender process pursuant to Ext.P1 general and special conditions for Kuthaka items in Sannidhanam, Pamba and Nilakkal for the period from November, 2023 to October, 2024. He is the successful bidder in respect of Kuthaka items 219 and 222 in the list of Kuthaka items, which form part of the re-e-tender notification dated 22.09.2023, in respect of which he has been issued with Exts.P2 and P3 certificates dated 08.11.2023 issued by the 5[th] respondent Executive Officer, Sabarimala. The grievance of the petitioner is that a large number of unidentified persons, without any licence or permission are selling or offering articles including food items to pilgrims near his stalls. This affects the livelihood of the petitioner and also the right of the pilgrims to get healthy food 5 W.P.(C)No.41729 of 2023 and good quality articles. The petitioner submitted Exts.P4 and P5 representations, pointing out his grievance. 3. On 14.12.2023, when this writ petition came up for admission, the learned Senior Government Pleader and also the learned Standing Counsel for Travancore Devaswom Board sought time to get instructions. The petitioner was directed to file an application to implead the Executive Magistrate at Nilakkal, Pamba and Sannidhanam. 4. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for the State and its officials and the learned Standing Counsel for Travancore Devaswom Board for the Board and its officials. 5. During the course of arguments, the learned counsel for the petitioner would submit that the petitioner has already filed an application for impleadment. The learned counsel for the petitioner has made available for the perusal of this Court a copy of licence dated 02.12.2023 issued by the Secretary of Ranni-Perunad Grama Panchayat to the petitioner, namely, Madhu M.B. Mavunkal, Karunapuram, Idukki, to conduct bakery, cool bar, stationery, fancy items and toys under the name Sri.Ayyappan, near Maha Deva Temple, in the shop rooms 6 W.P.(C)No.41729 of 2023 covered by Kuthaka items 219 and 222 in the list of Kuthaka items, which forms part of the re-e-tender notification dated 22.09.2023 issued by the Executive Officer, Sabarimala. Those licenses issued by the Secretary of Ranni-Perunad Grama Panchayat are reproduced hereunder; **==> picture [405 x 453] intentionally omitted <==** 7 W.P.(C)No.41729 of 2023 **==> picture [391 x 440] intentionally omitted <==** 6. The documents marked as Exts.P2 and P3 are the certificates issued by the 5[th] respondent Executive Officer, Sabarimala, wherein it is certified that the petitioner is the Kuthaka holder in Sabarimala Devaswom for the year 1199 ME (2023-24) in respect of Kuthaka items Nos.219 and 222. The relevant extract of the list of Kuthaka items, which forms part of 8 W.P.(C)No.41729 of 2023 ## re-e-tender notification dated 22.09.2023 issued by the ## Executive Officer, Sabarimala reads thus; എസ്.്റി.ഡി. ബൂ്ᩈ് കം ്ഹാൾ (മ ാബബൽ കമ്യൂണി്കേഷൻ മെന്റർ കം ്ഹാൾ) |എസ.്ി.ഡി. ബൂ്് കം ്ാൾ<br>(മ ാബബൽ കമയൂണി്േഷൻ മെനറർ കം ്ാൾ)|എസ.്ി.ഡി. ബൂ്് കം ്ാൾ<br>(മ ാബബൽ കമയൂണി്േഷൻ മെനറർ കം ്ാൾ)|എസ.്ി.ഡി. ബൂ്് കം ്ാൾ<br>(മ ാബബൽ കമയൂണി്േഷൻ മെനറർ കം ്ാൾ)|എസ.്ി.ഡി. ബൂ്് കം ്ാൾ<br>(മ ാബബൽ കമയൂണി്േഷൻ മെനറർ കം ്ാൾ)|എസ.്ി.ഡി. ബൂ്് കം ്ാൾ<br>(മ ാബബൽ കമയൂണി്േഷൻ മെനറർ കം ്ാൾ)|എസ.്ി.ഡി. ബൂ്് കം ്ാൾ<br>(മ ാബബൽ കമയൂണി്േഷൻ മെനറർ കം ്ാൾ)| |---|---|---|---|---|---| |219|219|ഗ്്<br>ഹൗെിൽ<br>നിനനം<br>ശരീ ഹാ്േവ<br>്േശര്ിമെ<br>നട്്െി്െᩄേ്<br>ഇറ്നന<br>്റാഡിനമറ വെരനവരം പഴയം<br>എസ.ടി.ഡി.<br>ബൂ്്<br>കം<br>്ാളിനമറ അ്ര്െ്ന10X5<br>m<br>അളവിൽ<br>്ാൻ<br>ശപകാരം<br>ഓ്ൺ ബവബൈ,െിം കാർഡ,<br>റീചാർ്്,<br>്ൈാ്ടാ<br>്<br>ാ്ി,<br>ഓൺബെൻ<br>ആ്ി്േഷൻസ,<br>കമയൂടർ<br>ശപിനറർ<br>എനീ<br>ൌകരയ്ൾ<br>നിർബ് ായനം<br>ശപവർ്ി്ിേണം.<br>(2023<br>നവംബർ ാെം11നരൽ2024<br>ഒക്ടാബർ<br>31<br>വമരയന്<br>കാെയളവിൽ)|<br> <br> <br> <br> <br> <br> <br> <br> <br> <br>െി|1,99,815|19,982| |222|222|പൂജാൊധന്ട് <br>ഉൾമ്ട ്ാൾ<br>2023നവംബർ ാെം11നരൽ<br>2024ഒക്ടാബർ31വമരയന്<br>കാെയളവിൽ നിെᩄേൽ ്േശര<br>പരിെര്്<br>ഡി്ാർടിമ നറിൽ<br>നിനനം<br>നി്യി്ിരിേനന<br>്െ്്7 x 5ീ അളവിൽ<br>കടമകടി<br>എ്,<br>കർ്ൂരം,<br>ൊശമാണി,<br>നാളി്<br>രം<br>രനട്ിയവ<br>വിൽേനനരിനനം<br>ഏറന<br>നാളി്<br>രം<br>എടനേനനരിനനം ഉൾമ്മട ഒരന<br>്ാൾ<br>നട്നനരിനന്<br>അവകാരം|<br> <br> <br> <br> <br> <br> <br> <br> <br> <br> <br>െി|3,28,901|32,890| Therefore, on the strength of Ext.P2 certificate in respect of Kuthaka item No.219, the petitioner can conduct STD booth cum mobile communication center to provide the services specifically referred to above and on the strength of Ext.P3 certificate, a 9 W.P.(C)No.41729 of 2023 pooja stall selling the items specifically referred to above. Now, as evident from the licenses extracted hereinbefore, the petitioner secured licence from Ranni-Perunad Grama Panchayat to run bakery, cool bar, stationery, fancy items and toys in the shop rooms covered by Kuthaka item Nos.219 and 222 in Sabarimala Devaswom. 7. Section 83 of the Kerala Police Act, 2011 deals with Special Security Zones. As per sub-section (1) of Section 83, the Government may, on the recommendation of the State Police - Chief or otherwise by reason of high security threats faced by any distinguished or protected person present in an area or any important institution or premises situated therein, notify such area as a Special Security Zone. As per sub-section (2) of Section 83, the Government may direct in areas so notified under sub-section (1) reasonable restrictions with respect to the use of building premises and vehicles and in respect of the movement of persons, vehicles and objects and police officers may issue, to all concerned, such directions as are necessary for the compliance of such restrictions. 8. The Government, vide G.O.(P)No.72/2022/Home dated 19.10.2022, declared Sabarimala and its vicinity as a 10 ## W.P.(C)No.41729 of 2023 'Special Security Zone' under sub-section (1) of Section 83 of the Kerala Police Act, 2011, in order to exercise the powers under sub-section (2) of Section 83 of the said Act, to ensure a safe, secure and hassle-free pilgrimage during Mandala Makaravilakku festival season of 1198 ME (2022-23). Similar notifications are being issued during Mandala Makaravilakku festival seasons. The management of the Virtual-Q system for Sabarimala darshan is governed by the directions contained in the order of this Court in **Suo Motu v. Travancore Devaswom Board [2022 (7) KHC SN 5 : 2022:KER;20733]** . 9. In this writ petition, the petitioner is seeking various reliefs, invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, alleging unauthorised sale of food items and other articles in Sannidhanam, Pamba and Nilakkal, in violation of the general and special conditions in the re-e-tender notification dated 22.09.2023 issued by the 5[th] respondent Executive Officer, Sabarimala in respect of Kuthaka items in Sabarimala Devaswom for the year 1199 ME (2023-24). 10. As stated by Scrutton, L.J, in **R. v. Kensington Income Tax Commissioners [(1917) 1 K.B. 486]** , an applicant who does not come with candid facts and ‘clean breast’ 11 W.P.(C)No.41729 of 2023 cannot hold a writ of the court with ‘soiled hands’. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. 11. The petitioner, who secured licence from RanniPerunad Grama Panchayat for conducting bakery, cool bar, stationery, fancy and toys in the stalls in shop rooms covered by Kuthaka item Nos.219 and 222, beyond the scope of those Kuthaka rights, openly flouting the general and special conditions contained in Ext.P1, cannot invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India with ‘soiled hands’. On that sole ground, this writ petition is liable to be dismissed. 12. It is for the 5[th] respondent Executive Officer, Sabarimala and the Secretary of the 7[th] respondent RanniPerunad Grama Panchayat to take immediate steps to ensure that the trade in the petitioner’s stalls covered by Exts.P2 and P3 certificates are strictly in terms of the Kuthaka rights vide Kuthaka item Nos.219 and 222. 13. In SSCR No.29 of 2023 filed by the Special Commissioner, Sabarimala, Ranni-Perunad Grama Panchayat, 12 W.P.(C)No.41729 of 2023 represented by its Secretary has already been impleaded as an additional respondent and the Secretary of that Grama Panchayat and the Secretary of Erumeli Grama Panchayat are directed to ensure that the licence issued to various Kuthaka holders in Sabarimala and Erumeli are not beyond the scope of the Kuthaka right granted to the respective Kuthaka holder. In the result, this writ petition is dismissed for the reason stated hereinbefore, subject to the above observation. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **G. GIRISH, JUDGE** MIN 13 W.P.(C)No.41729 of 2023 ## **`APPENDIX OF WP(C) 41729/2023`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1 ``` ``` TRUE COPY OF DB ROC.04/23/SABARIMALA (MONOPOLY) DATED 07/08/2023 (DB ROC.04/23/SABARIMALA (MONOPOLY) DATED 21/09/2023 PUBLISHED BY THIRD RESPONDENT ``` ``` EXHIBIT P2 ``` - **`A TRUE COPY OF CERTIFICATE NUMBER EOP NO.196/23/SABARIMALA DATED 08- 11-2023 ISSUED BY 5TH RESPONDENT STATING THAT SREE AYYAPPAN HAS BEEN ALLOTTED STALL NO.219`** ``` EXHIBIT P3 ``` - **`A TRUE COPY OF CERTIFICATE NUMBER E.O. P NO.196/23/SABARIMALA DATED 08-112023(DATE MISTAKENLY NOTED AS 0-112023) ISSUED BY 5TH RESPONDENT STATING THAT PETITIONER HAS BEEN ALLOTTED STALL NO.222`** - **`EXHIBIT P4 A TRUE COPY OF THE HANDWRITTEN PETITION DATED 28.11.23 GIVEN TO THE MANAGER, DEVASWOM BOARD ALONG WITH TYPED COPY`** ``` EXHIBIT P5 A TRUE COPY OF THE HANDWRITTEN PETITION DATED 28-11-2023 GIVEN TO THE SIXTH RESPONDENT ALONG WITH A TYPED COPY ```