N. Sasikumar v. Travancore Devaswom Board

## **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 DECEMBER 2022/ 29TH AGRAHAYANA, 1944** ## **W.P.(C) NO. 27849 OF 2021** ## **PETITIONER:** **N.SASIKUMAR, AGED 60 YEARS, S/O. NAGAMANI, PUSHPAVILASOM, PLAVERAMELA PUTHEN VEEDU, PINACODE, MANCHAVILAKOM P.O, PERUMKADAVILA VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN-695 503.** ## **BY ADV RAJESH P.NAIR** ## **RESPONDENTS:** - **1 THE TRAVANCORE DEVASWOM BOARD, DEVASWOM HEADQUARTERS, NANTHENCODE, THIRUVANANTHAPURAM, PIN - 695 003, REPRESENTED BY ITS SECRETARY.** - **2 THE SECRETARY, TRAVANCORE DEVASWOM BOARD, TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANTHENCODE, THIRUVANANTHAPURAM, PIN - 695 003.** - **3 THE EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE ENGINEER, SABARIMALA DEVELOPMENT PROJECT, TRAVANCORE DEVASWOM BOARD BUILDING, KUMBAZHA ROAD, PATHANAMTHITTA-689645.** - **4 THE ASSISTANT ENGINEER, OFFICE OF THE ASSISTANT ENGINEER, SABARIMALA DEVELOPMENT PROJECT, TRAVANCORE DEVASWOM BOARD BUILDING, KUMBAZHA ROAD, PATHANAMTHITTA, PIN CODE - 689 645.** 2 W.P.(C) No.27849 of 2021 - **5 THE OVERSEER,** - **OFFICE OF THE ASSISTANT ENGINEER, SABARIMALA DEVELOPMENT PROJECT, TRAVANCORE DEVASWOM BOARD BUILDING, KUMBAZHA ROAD, PATHANAMTHITTA, PIN CODE - 689 645.** - **6 DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANTHENCODE, THIRUVANANTHAPURAM, PIN - 695 003.** - **7* SRI.P.D. SHAJIMON, MULAMOOTTIL HOUSE, RANNI P.O., PATHANAMTHTTA PIN – 689672.** - **8** VIJAYA MOHAN** - **THE ASSISTANT ENGINEER, OFFICE OF THE ASSISTANT ENGINEER, TRAVANCORE DEVASWOM BOARD, ERUMELI P.O., ERUMELI KOTTAYAM DISTRICT PIN – 686509.** - ***ADDL. R7 IS SUO MOTU IMPLEADED AS PER ORDER DATED IN 07.04.2022 IN WPC NO. 27849.2021.** - ****ADDL.R8 IS IMPLEADED AS PER ORDER DATED** - **23.09.2022 IN IA 1/2022 IN WPC NO. 27849/2021.** - **BY ADVS.** - **R1 TO R5 BY SHRI.G.BIJU,SC, TRAVANCORE DEVASWOM BOARD** - **R7 BY K.SASIKUMAR** **R7 BY S.ARAVIND** **R8 BY C.S.MANILAL** - **R8 BY S.NIDHEESH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 30.11.2022, THE COURT ON 20.12.2022 DELIVERED THE FOLLOWING:** 3 W.P.(C) No.27849 of 2021 ## **JUDGMENT** P.G.Ajithkumar, J. The petitioner seeks a writ of mandamus commanding the 3[rd] respondent to disburse to the petitioner Rs.8,83,298.43, being the contractual liability in respect of the work of providing interlocking pavers in between Ramamoorthy Mandapam and permanent Hotel Building at Pamba during the period 2017-2018. He further seeks a writ of mandamus commanding respondents 3 and 6 to consider and pass appropriate orders on Exts.P4 and P6 representations submitted by him. 2. The petitioner claims that he is a contractor by profession. He has 30 years of experience as a contractor. He was entrusted with the aforesaid work by the 3[rd] respondent. Since the work was occasioned following the severe flood, there was urgency, and therefore the work was entrusted with him without inviting tenders. The work was satisfactorily carried out by him and that fact has been noted in the measurement book No.SDP/20/2017 PAMBA, a copy of which 4 W.P.(C) No.27849 of 2021 is Ext.P1. A bill was also drawn up. However, payment was not effected in time. Therefore, the petitioner has submitted representations one after the other. Ext.P4 representation was submitted to the 6[th] respondent-Commissioner and Ext.P6 representation was submitted to the 3[rd] respondentExecutive Engineer. Payment has not yet been effected and hence the petitioner was constrained to file this Writ Petition invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. 3. A statement was filed by the learned Standing Counsel for the Travancore Devaswom Board for and on behalf of respondent Nos.1 to 6. The contention taken up by those respondents is that there was no contract with the petitioner in relation to such a work. Work was not undertaken by the petitioner. After drawing up an estimate of the said work, competitive tenders were invited. Last date for submission of tenders was 10.10.2017. The lowest bidder Sri.K.Lenin was awarded with the work. He has executed the work. The petitioner did not submit any tender and there was 5 W.P.(C) No.27849 of 2021 no privity of contract between the respondents and the petitioner. They have therefore no obligation to pay any amount to the petitioner as prayed. Accordingly, respondents No. 1 to 6 seek to dismiss the petition. 4. On 14.03.2022, when this Writ Petition was taken up for consideration, the learned counsel appearing for the petitioner had handed over a notarised copy of the measurement book in question. Since it was attested to be a true copy by a Notary Public, a query was posed as to its original. The learned counsel for the petitioner submitted that the original book was with the petitioner and the same could be produced. Accordingly, on 23.03.2022 the petitioner brought the original measurement book to the Court. He was directed to produce the measurement book before the Registrar (Judicial), who was instructed to keep the same in safe custody. 5. In the wake of production of the original measurement book by the petitioner, the 4[th] respondentAssistant Engineer was directed to be personally present 6 W.P.(C) No.27849 of 2021 before this Court along with the relevant files. In terms of the said direction, he appeared before this Court on 30.03.2022 and submitted that the Assistant Engineer then in charge of the work, had already retired and furnished his present address. This Court accordingly impleaded him suo motu as the additional 7[th] respondent. 6. The 7[th] respondent entered appearance through his learned counsel and has filed a counter-affidavit. In the counteraffidavit, the 7[th] respondent took the stand that one Sri.Vijayamohanan was the Assistant Engineer at Pamba till 18.03.2018 and during his tenure the work in question was carried out. As directed by this Court, a petition for impleadment was filed by the petitioner and accordingly Sri.Vijayamohanan, Assistant Engineer was impleaded as additional 8[th] respondent. He also has filed a counter-affidavit. 7. Reply-affidavits were filed by the petitioner in answer to the averments in the statement filed on behalf of respondents 1 to 6 and also the counter-affidavits filed by the additional 7[th] respondent. 7 W.P.(C) No.27849 of 2021 8. Heard the learned counsel appearing for the petitioner, the learned Standing Counsel for the Travancore Devaswom Board and the respective learned counsel appearing for respondents No. 7 and 8. 9. The claim of the petitioner is that he has undertaken the work of providing interlocking pavers in between Ramamoorthy Mandapam and permanent Hotel Building at Pamba. He would contend that considering the urgency, the 3[rd] respondent instructed him to carry out the work without inviting tenders. The petitioner claims to be a contractor, having 30 years of experience, and has undertaken various works under the Sabarimala Development Project. It was on account of that acquaintance and trust, he was entrusted with the work in question. It is his contention that on completion of the work by him on 18.03.2018, the 4[th] respondent made relevant entries in the measurement book and submitted the same for approval before the 3[rd] respondent. Although the 3[rd] respondent was convinced that the work was satisfactorily completed by the 8 W.P.(C) No.27849 of 2021 petitioner, he purposefully delayed payment. On account of that delay, the petitioner had to approach the 6[th] respondentCommissioner by submitting a representation dated 15.11.2021, copy of which is Ext.P4. A similar representation was submitted before the 3[rd] respondent also, a copy of which is Ext.P6. 10. The claim of the petitioner that he has undertaken the work is denied by respondents 1 to 6. The categoric contention in the statement filed on behalf of respondents 1 to 6 is that on inviting tenders, the work in question was awarded in favour of one Sri.K.Lenin who quoted the lowest bid amount and the work was completed by him. It is also contended by these respondents that a tender was floated regarding the work and the petitioner never had participated in the tender process. Without there having any material to show that he was awarded with the work and a contract was entered into between him and the Travancore Devaswom Board, he has been claiming the price of the work. 9 W.P.(C) No.27849 of 2021 11. Additional 7[th] respondent maintains that the claim of the petitioner is surrounded by suspicion. He would contend that he was not aware of who did the work. During the relevant period he was not working as Assistant Engineer, Pamba and therefore he did not know anything further about it. He also contended that he took charge as Assistant Engineer, Pamba only on 14.10.2019. He found that Ext.P1 was pending in that office and he did not take any further action for want of supporting documents. 12. The additional 8[th] respondent also took a similar stand. He admitted that he was the Assistant Engineer of Sabarimala Development Project, Pamba from 12.08.2016 to 28.03.2018. He denied that the work in question was entrusted with the petitioner. It is also stated that a part of the work in question was executed by the petitioner although there was no contract between the petitioner and the Board. Thereby he also took the stand that the petitioner has no right to claim any amount from the Travancore Devaswom Board. 10 W.P.(C) No.27849 of 2021 13. From the pleadings and materials on record, what emerges is that other than Exts.P1 and P2, there is absolutely no material to show that the work of providing interlocking pavers in between Ramamoorthy Mandapam and permanent Hotel Building at Pamba was awarded to the petitioner. The additional 8[th] respondent submitted that in emergencies, works are used to be entrusted with the contractors without inviting tenders. But the case of respondents 1 to 6 is that the work in question was never entrusted with the petitioner and the work was not undertaken by him. The employer-Travancore Devaswom Board thus takes a definite stand that there is no privity of contract. 14. The learned Standing Counsel for the Travancore Devaswom Board places reliance on **State of Bihar v. Jain Plastics and Chemicals Ltd. [(2002) 1 SCC 216], National Highway Authority of India v. Ganga Enterprises [(2003) 7 SCC 410] and State of Kerala v. M.K.Jose [(2015) 9 SCC 433]** to fortify his contention that 11 W.P.(C) No.27849 of 2021 the dispute pertains contractual relationship between the petitioner and the Board and such a question cannot be considered in proceedings under Article 226 of the Constitution of India. It has been succinctly held that disputes relating to contracts cannot be agitated under Art.226 of the Constitution of India. (Also see: **Kerala State Electricity Board v. Kurien E. Kalathil, (2000) 6 SCC 293** , **State of Uttar Pradesh v. Bridge and Roof Company (India) Limited, (1996) 6 SCC 22** and **B.D.A. v. Ajai Pal Singh, (1989) 2 SCC 116** ). Thus it is the settled law that in respect of contractual disputes a Writ Court is not the proper forum. Further, the issue involved in the writ petition can be resolved only by answering the disputed questions of facts which is not possible in a writ proceedings. 15. Here, the position is still worse. Very existence of a contract regarding the work in question is in dispute. The petitioner could not produce any document to show that the work was awarded to him by the Travancore Devaswom 12 ## W.P.(C) No.27849 of 2021 Board. it is true that in Ext.P1 measurement book and Ext.P2 daily report which was submitted by the 3[rd] respondent Overseer name of the petitioner is mentioned as the contractor. The 3[rd] respondent has the responsibility of supervising the work. When the employer, the Travancore Devaswom Board denies existence of any contract between the petitioner and the Board, the entries in Exts.P1 and P2 alone, unsupported by any other document, are absolutely insufficient to show that the petitioner was the contractor who undertook the work. In such circumstances, even if the petitioner has done some work as he claimed, he cannot enforce his claim as a contractual obligation. If he really had done the work, his remedy is to approach the civil court, provided the law enables him to do so. In such circumstances, the petitioner is not entitled to any reliefs as he claimed. 16. Before parting with, we hasten to mention about the totally unacceptable practice in the Travancore Devaswom Board which we noticed during the course of the 13 ## W.P.(C) No.27849 of 2021 proceedings in this Writ Petition. The petitioner is a contractor. The 4[th] respondent, who appeared before this Court in person on 30.03.2022, stated that on no account a measurement book could be with a private individual. The original of the measurement book should always be with the officials of the Travancore Devaswom Board. The original measurement book maintained in the office of the Assistant Engineer of the Sabarimala Development Project, Pamba, was in the possession of the petitioner and he produced the same from his custody before this Court. A measurement book has sanctity for, details of various maramath works undertaken by the contractors for the Devaswom Board are entered in it on a regular basis. When such a document is entrusted with the contractor, who never can possess it, the officials concerned abdicated their official responsibility and that amounts to dereliction of duty. We do not propose to add anything further except that it is for the Travancore Devaswom Board to conduct necessary enquiry into the matter, though its Chief 14 W.P.(C) No.27849 of 2021 Vigilance Officer and to take remedial action in the matter. The enquiry shall be completed within a period of three months. With the above observations, the Writ Petition is dismissed. The Registrar (Judicial) shall return the original measurement book to the Chief Vigilance Officer, Travancore Devaswom Board, on proper acknowledgement. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr 15 W.P.(C) No.27849 of 2021 ## **APPENDIX OF WP(C) 27849/2021** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF THE SAID MEASUREMENT BOOK NO. SDP/20/2017.** - **EXHIBIT P2** **TRUE COPY OF THE DAILY REPORT DATED 05.11.2017 SUBMITTED BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT.** **EXHIBIT P3** - **TRUE COPY OF THE DISCHARGE SUMMARY ISSUED BY THE MANUAL ORTHOPAEDIC HOSPITAL, THIRUPPATHISARAM, DATED 22.01.2019.** - **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 15.11.2021 SUBMITTED BEFORE THE 6TH RESPONDENT COMMISSIONER.** - **EXHIBIT P5** - **TRUE COPY OF THE TRACK CONSIGNMENT DETAILS CONFIRMING THE DELIVERY OF EXHIBIT P4 REPRESENTATION DATED 16.11.2021, TO THE 6TH RESPONDENT.** - **EXHIBIT P6** - **TRUE COPY OF THE REPRESENTATION DATED 15.11.2021 SUBMITTED BEFORE THE 3RD RESPONDENT BY THE PETITIONER.** - **EXHIBIT P7** - **TRUE COPY OF THE TRACK CONSIGNMENT DETAILS CONFIRMING THE DELIVERY OF EXHIBIT P6.** - **EXHIBIT P9** - **TRUE COPY THE LAWYER NOTICE DATED 6.9.2021 SENT BY THE PETITIONER TO THE SECRETARY, TRAVANCORE DEVASWOM BOARD** - **RESPONDENT EXHIBITS** - **EXHIBIT R7(A)** - **A TRUE COPY OF THE LETTER DATED 5-102021 FORWARDED BY THE 3RD RESPONDENT.** 16 W.P.(C) No.27849 of 2021 **EXHIBIT R8(A) TRUE COPY OF THE ORDER OF TRANSFER NO. ROC 5817/16/EST-I DATED 14/03/2018** **EXHIBIT R8(B) TRUE COPY OF THE NOTICE INVITING TENDER (NO. SDP/EE/T-6/17-18 DATED 27/09/2017)** **EXHIBIT R8(C) TRUE COPY OF THE CONTRACT SANCTION DATED 24/07/2018** **EXHIBIT R8(D) TRUE COPY OF THE ADMINISTRATIVE SANCTION GRANTED BY THE BOARD DATED 15/05/2019** **EXHIBIT R8(E) TRUE COPY OF THE NOTICE DATE 05/10/2021 ISSUED BY THE 3RD RESPONDENT** **EXHIBIT R8(F) TRUE COPY OF THE REPLY DATED 11/10/2021 BY ASSISTANT ENGINEER, TDB, MUNDAKKAYAM** **EXHIBIT R8(G)** **TRUE COPY OF THE LETTER DATED 14/08/2022 FROM ASST. ENGINEER, SDP PAMBA TO EXECUTIVE ENGINEER, SDP PATHANAMTHITTA** **EXHIBIT R8(H)** **TRUE COPY OF THE LETTER DATED 14/08/2020 ISSUED BY THE 3RD RESPONDENT TO THE 7TH RESPONDENT**