Rajesh T.B. and others v. Travancore Devaswom Board and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 22[ND] DAY OF DECEMBER 2021 / 1ST POUSHA, 1943** ## **W.P.(C)NO.29961 OF 2021** ## **PETITIONERS:** **1 RAJESH T.B., AGED 45 YEARS, S/O.BHADRAN NAIR, THURUNTHAYIL VEETTIL, EDANADUMURI, MALAYALAPPUZHA P.O., PATHANAMTHITTA DISTRICT, PIN - 689 666. 2 RAGESH K., AGED 36 YEARS, S/O.KUTTAPPAN NAIR, PEZHUMMOOTTIL, NALLORMURI, MALAYALAPPUZHA P.O., PATHANAMTHITTA DISTRICT, PIN - 689 666. 3 JAYAPRASKASH P.G., AGED 35 YEARS, S/O.GOPINATHAN NAYAR, PARAPATTU PUTHENVEED, THAZHAM P.O., MALAYALAPPUZHA, PATHANAMTHITTA DISTRICT, PIN - 689 666.** **4 VINOD P.K., AGED 44 YEARS, S/O.PURUSHOTHAMAN, PARAYIL PUTHENVEETIL, KUMBAZHA P.O., PATHANAMTHITTA DISTRICT, PIN - 689 666.** **BY ADVS. R.RENJITH MANJUSHA K M.T.SURESHKUMAR** ## **RESPONDENTS:** **1 TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM, PIN - 695 003 REPRESENTED BY ITS SECRETARY.** W.P.(C) NO. 29961 OF 2021 2 **2 THE SECRETARY TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM, PIN - 695 003. 3 THE COMMISSIONER TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM, PIN - 695 003. 4 ADMINISTRATIVE OFFICER, MALAYALAPPUZHA DEVASWOM, MALAYALAPPUZHA THAZHAM, TRAVANCORE DEVASWOM BOARD, PATHANAMTHITTA DISTRICT, PIN - 689 533** ## **OTHER PRESENT:** ## **SRI BIJU G-STANDING COUNSEL ,TDB** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) NO.29961 OF 2021 3 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioners, who are successful bidders in the auction conducted by the 1st respondent-Travancore Devaswom Board in the matter of providing materials for performing different rituals in Malayalappuzha Devi Temple, for the period from 01.04.2021 to 31.03.2022, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P6 order dated 26.10.2021 issued by the 1st respondent and Exts.P7 to P11 notices dated 06.12.2021 issued by the 4th respondent-Administrative Officer, Malayalappuzha Devaswom. The petitioners have also sought for a writ of mandamus commanding the respondents to give proportionate reduction in the bid amount for the period during which the temple in question remained closed due to lock down and also to direct the respondents to renew the contract in favour of the petitioners for one more year, so that they will be able to make good the alleged loss. 2. Heard the learned counsel for the petitioners and also the learned Standing Counsel for the Travancore Devaswom Board. W.P.(C) NO.29961 OF 2021 4 3. The petitioners had earlier filed W.P.(C)No.14574 of 2021 seeking a writ of certiorari to quash notice dated 16.07.2021 issued by the Assistant Devaswom Commissioner, Aranmula, whereby they were required to remit the defaulted second instalment together with penal interest in respect of the kuthaka stalls on or before 19.07.2021, failing which the stalls will be sealed for conducting re-auction. The petitioners were also required to execute agreement with the Assistant Devaswom Commissioner, in terms of the tender conditions. In the said writ petition the petitioners have also sought for a writ of mandamus commanding the respondents to consider their representations dated 09.07.2021 and to extend the time to remit the balance auctioned amount till January, 2022. That writ petition was disposed of by Ext.P1 judgment dated 26.07.2021 permitting the petitioners to effect payment of the second installment on or before 30.09.2021 and in case they effect payment towards second installment on or before 30.09.2021, it would be open to them to approach the Travancore Devaswom Board seeking further time for effecting payment of the third installment. On receipt of the application W.P.(C) NO.29961 OF 2021 5 for time to effect payment of the third installment, the Travancore Devaswom Board was directed to take appropriate decision. 4. In Ext.P1 judgment this Court found that the 1[st] petitioner is liable to pay an amount of Rs.33.5 lakhs more to honour the conditions of the contract. In respect of petitioners 2 and 3 the outstanding amount is Rs.15 lakhs and 12.25 lakhs respectively. In the first paragraph of Ext.P1 judgment this Court noticed that the limited prayer in W.P.(C)No.14574 of 2021 is for a direction to the respondents to consider the representations made by the petitioners to remit the balance auctioned amount till January, 2022. 5. On 26.07.2021 when W.P.(C)No.14574 of 2021 came up for consideration, the learned Standing Counsel for Travancore Devaswom Board made available for the perusal of this Court a copy of proceedings dated 19.07.2021 of the Board, which is a general order, whereby the successful bidders in respect of different items in different Temples under the Board are granted extension of time for effecting payment of balance auctioned amount. As per that proceedings, the second W.P.(C) NO.29961 OF 2021 6 instalment has to be paid on or before 31.08.2021 and the third instalment on or before 30.09.2021. 6. As discernible from Ext.P1 judgment, the submission made by the learned counsel for the petitioners was that, taking note of the huge amount remaining to be paid some more time may be granted for effecting payment. The learned Standing Counsel for Travancore Devaswom Board submitted that, in case the petitioners are effecting the second instalment on or before 30.09.2021, it would be open to them to approach the Board seeking further time for effecting payment of the third instalment. The Division Bench recorded the aforesaid submission made by the learned Standing Counsel and disposed of W.P(C)No.14574 of 2021 by Ext.P1 judgment. 7. After remitting the second instalment the petitioners submitted Exts.P2 to P5 representations dated 20.10.2021 seeking extension of time for remitting the third instalment. They were issued with a notice dated 01.10.2021 of the 4[th] respondent-Administrative Officer, whereby they were required to remit the third instalment immediately, failing which proceedings will be taken to re-auction the respective stalls. In W.P.(C) NO.29961 OF 2021 7 those representations the petitioners have also sought for proportionate reduction of the auctioned amount for 67 days of closure of the Temple due to lock down; or to extend the period of auction for a further period of 67 days; or to permit them to bid the auction for the period from 01.04.2022 to 31.03.2023 at the very same amount. The 1[st] respondent considered the above request made by the petitioners, in the light of the direction contained in Ext.P1 judgment dated 26.07.2021 in W.P.(C)No.14574 of 2021, and granted them and other successful bidders, who have remitted the second instalment on or before 30.09.2021, time till 31.12.2021 for remitting the third instalment. In Ext.P6 order it was made clear that in case the third instalment is not remitted within 31.12.2021, further proceedings in accordance with the tender conditions will be initiated. In the said order, the Board has rejected the request made by the petitioners for proportionate reduction of the auctioned amount. In terms of Ext.P6 order, the 4[th] respondentAdministrative Officer by Exts.P7 to P11 notices dated 06.12.2021 required to petitioners to remit a sum of Rs.16,75,000/-, Rs.7,50,000/- Rs.6,12,500/-, Rs.17,92,976/- W.P.(C) NO.29961 OF 2021 8 and Rs.3,56,313/- towards the third instalment, on or before 31.12.2021, failing which they will not be permitted to conduct the respective stalls, with effect from 01.01.2022. 8. The learned counsel for the petitioners would contend that since the Temple remained closed for more than 67 days during the period of lock down, the respondents ought to have taken a favourable decision on the request made by the petitioners in Exts.P2 to P5 representations. Per contra, the learned Standing Counsel for Travancore Devaswom Board would point out that the only relief sought for in W.P. (C)No.14574 of 2021 was for extension of time to remit the balance auctioned amount till January, 2022. In terms of the direction contained in Ext.P1 judgment, the Board issued Ext.P6 order granting extension of time for remitting the third instalment till 31.12.2021, in respect of successful bidders who had remitted the second instalment on or before 30.09.2021. 9. During the course of arguments, the learned Standing Counsel has also furnished the auctioned amount of the kuthaka items in question, for the years 2019-2020, 20202021 and 2021-2022, in order to show that the auctioned W.P.(C) NO.29961 OF 2021 9 amount for the year 2021-2022 is on a lower side, compared to the auctioned amount for the previous year, i.e., 2020-2021. The particulars furnished by the learned Standing Counsel for Travancore Devaswom Board are extracted hereunder: ## - st 1. Ext.P7 notice 1 petitioner |2019-2020|:|||||Rs.85,99,777/-| |---|---|---|---|---|---|---| |2020-2021|:|||||Rs.95,59,999/-| |2021-2022|:|||||Rs.67,00,001/-| |2.E<br>xt.P8 notice-2||nd<br>|||petitioner|| |2019-2020|:|||||Rs.45,57,931/-| |2020-2021|:|||||Rs.55,50,999/-| |2021-2022|:|||||Rs.30,00,001/-| |3.Ext.P9 notice-3||rd<br>|||petitioner|| |2019-2020|:|||||Rs.27,07,273/-| |2020-2021|:|||||Rs.35,15,010/-| |2021-2022|:|||||Rs.24,50,001/-| |4. Ext.P10 notice-4|||th<br>|||petitioner| |2019-2020|:|||||Rs.50,05,559/-| |2020-2021|:|||||Rs.85,75,751/-| |2021-2022|:|||||Rs.72,85,951/-| |5.Ext.P11 notice-4||||th<br>||petitioner<br>| |2019-2020|:|||||Rs.15,65,556/-| |2020-2021|:|||||Rs.24,75,751/-| |2021-2022|:|||||Rs.14,25,251/-| |10.<br>Having considered the pleadings and materials on||||||| record and also the submissions made by the learned counsel on both sides, this Court finds that the only relief sought for in W.P.(C)No.14574 of 2021 was an order directing the W.P.(C) NO.29961 OF 2021 10 respondents to consider the representations made by the petitioners and to extend the time limit to remit the balance auctioned amount till January, 2022. During the pendency of that writ petition, by proceedings dated 19.07.2021, the Board extended the time limit for payment of the second instalment by 31.08.2021 and that for payment of the third instalment by 30.09.2021. By Ext.P1 judgment, taking note of the stand taken by the Travancore Devaswom Board that in case the petitioners effect payment of the second instalment on or before 30.09.2021, they can approach the Board for seeking further time for effecting payment of the third instalment, this Court disposed of W.P(C)No.14574 of 2021 by Ext.P1 judgment, whereby the petitioners were permitted to effect payment of the second instalment on or before 30.09.2021 and thereafter approach the Board seeking further time for effecting payment of the third instalment. 11. As already noticed hereinbefore, the auctioned amount for the year 2021-2022 is on the lower side, when compared to that for the previous year, i,e., 2020-2021. The petitioners, who are the successful bidders in the auction W.P.(C) NO.29961 OF 2021 11 conducted by the Board for the year 2021-2022 are bound to remit the entire amount in three instalments, within the time limit stipulated by the Board. The only relief that can be granted by the Board, while considering Exts.P2 to P5 representations, in the light of the directions contained in Ext.P1 judgment of this Court dated 26.07.2021 in W.P. (C)No.14574 of 2021, is grant of extension of time for remitting the third instalment, which has already been granted by Ext.P6 order dated 25.10.2021, by granting time till 31.12.2021. Therefore, the further reliefs sought for in Exts.P2 to P5 for proportionate reduction of the auctioned amount, extension of the period of contract, etc., were rightly rejected by the Board in Ext.P6 order. 12. It is pertinent to note that a similar request for extension for the period of contract made by Sabarimala Vyapari Vyavasayi Ekopana Samithi and another has already been turned down by this Court in the judgment dated 13.10.2020 in W.P.(C)No.21621 of 2020. The relevant portion of that judgment reads thus: 'The prayer is for issuance of writ of mandamus to allow the members of the first petitioner including the second W.P.(C) NO.29961 OF 2021 12 petitioner to do business for the remaining 72 days, commencing from November 2020. In other words, the petitioners are contending that this year, at least for 72 days, no other person shall be permitted to conduct the business in respect of the businesses being conducted by the members of the first petitioner. In the contextual situation, it is only appropriate to refer to the decision of the Apex Court in Travancore Devaswom Board v. Thanath International reported in (2004) 13 SCC 44. Paragraph 12 of the said decision assumes relevance in this context and it reads thus:- “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 W.P.(C).21621/2020 9 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 W.P.(C) NO.29961 OF 2021 13 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.” In the light of the aforesaid decision, there can be no doubt with respect to the position that in respect of concluded contract, the parties are governed by the terms of contract. Subsequent developments cannot be a reason for the petitioners to say that ignoring the specified terms in the contract, right should be extended even though no such right is actually flowing from the concluded contract. In this case, the members of the first petitioner as also the second petitioner got right to conduct business in Sabarimala till 31.10.2020 only on the strength of becoming the successful bidders in the auction conducted in the year 2019-2020. That circumstances cannot be a reason for the first petitioner to contend that ignoring the terms of the contract as also the factum of issuance of fresh tender notification, its members including the second petitioner should be permitted to continue to do business this entire season or for a period of 72 days. In short, we do not find any merit in this writ petition carrying the aforesaid prayers. Consequently, it is dismissed.' 13. In **Rajani P. Kuttan and another v. State of Kerala and others [2021 (6) KHC 513]** a Division Bench of this Court noticed that among the 1250 Temples managed by W.P.(C) NO.29961 OF 2021 14 the Travancore Devaswom Board, only 60 major Temples are self-sufficient and the rest are being managed utilising the surplus income from Sabarimala Devaswom. The total number of sanctioned posts in various categories in the Travancore Devaswom Board is 5692 and the total number of pensioners is 5749. The major source of revenue of the Travancore Devaswom Board is the income received by way of offering by the devotees, the amount received from vazhipadu and the revenue generated through the auction of temple premises for various activities in connection with rituals and festivals in the Temples. Paragraph 59 of the said decision reads thus: “59. The Financial position of the Devaswom Board:- The competent officer of the Devaswom Board filed an affidavit dated 14.06.2021 stating its financial position. It is submitted that there are 1250 temples under the Administrative Control of the Devaswom Board. The total number of sanctioned posts in various categories in the Devaswom Board is 5692, and the total number of pensioners is 5749. It is further submitted that the major sources of revenue of the Devaswom Board are the income received by way of offerings from devotees, the amount received from vazhipadu, and the revenue generated through the auction of the temple premises for various activities in connection with rituals and festivals in W.P.(C) NO.29961 OF 2021 15 the temples. Besides this, the Devaswom Board gets an approximate sum of 14 crores per annum by way of the rent of the buildings owned by it. The annual contribution from the State Government under Article 290A of the Constitution of India is Rs.80 lakhs. It is further submitted that among the 1250 temples managed by the Devaswom Board, only 60 major temples are self-sufficient, and the rest are being managed utilising the surplus income from Sabarimala Devaswom. Now, due to the spread of the Covid-19 pandemic, the temples remain closed, and the major source of income has come down. The Devaswom Board is finding it difficult even to pay the salary of the existing employees. The pleadings regarding the financial position of the Devaswom Board in the affidavit dated 14.06.2021 have not been controverted by the petitioners.” 14. The auction amount paid by the petitioners and other successful bidders represents 'muthalkoottu' which will go to the account of the Travancore Devaswom Board. 'Muthalkoottu' adds on to the income of the Board, which will have to be appropriately used for running different establishments of the Board and also for paying salary to the employees, providing necessary infrastructure for various activities of the Board, etc. During Covid-19 pandemic this major source of income of the Board has come down considerably, for the reason that the W.P.(C) NO.29961 OF 2021 16 auctioned amount of various kuthaka items in different Temples are on the lower side. The petitioners and other successful bidders, who have auctioned the right for the year 2021-2022 at a lower rate, have already been granted extension of time for remitting the second and third instalments. They are not entitled for any further extension of time or relaxation. 15. In the above circumstances, we find no valid grounds to interfere with Ext.P6 order dated 26.10.2021 issued by the 1[st] respondent-Travancore Devaswom Board or Exts.P7 to P11 notice 06.12.2021 issued by the 4[th] respondent-Administrative Officer. In the result, the writ petition fails and the same is accordingly dismissed. No order as to costs. ## Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** MIN W.P.(C) NO.29961 OF 2021 17 ## **APPENDIX OF W.P.(C)NO.29961 OF 2021** **EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE JUDGMENT PASSED BY THIS HONOURABLE COURT ON 26.7.2021 IN W.P.(C) No.14574 OF 2021 EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE REPRESENTATION DATED 20.10.20221 SUBMITTED BY THE 1ST PETITIONER BEFORE THE PRESIDENT, TRAVANCORE DEVASWOM BOARD EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE REPRESENTATION DATED 20.10.2021 SUBMITTED BY THE 2ND PETITIONER BEFORE THE PRESIDENT, TRAVANCORE DEVASWOM BOARD EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE REPRESENTATION DATED 20.10.2021 SUBMITTED BY THE 3RD PETITONER BEFORE THE PRESIDENT, TRAVANCORE DEVASWOM BOARD EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE REPRESENTATION DATED 20.10.2021 SUBMITTED BY THE 4TH PETITIONER BEFORE THE PRESIDENT, TRAVANCORE DEVASWOM BOARD EXHIBIT P6 TRUE PHOTOSTAT COPY OF THE ORDER NO.456/21/NS DATED 26.10.2021 PASSED BY THE ASSISTANT SECRETARY OF THE 2ND RESPONDENT WITH TRUE TYPED COPY EXHIBIT P7 TRUE PHOTOSTAT COPY OF THE NOTICE NO.249 DATED6.12.2021 ISSUED TO THE 1ST PETITIONER BY THE 4TH RESPONDENT EXHIBIT P8 TRUE PHOTOSTAT COPY OF THE NOTICE NO.253 DATED 6.12.2021 ISSUED TO THE 2ND PETITIONER BY THE 4TH RESPONDENT** W.P.(C) NO.29961 OF 2021 18 ## **EXHIBIT P9** **TRUE PHOTOSTAT COPY OF THE NOTICE NO.250 DATED 6.12.2021 ISSUED TO THE 3RD PETITIONER BY THE 4TH RESPONDENT** **EXHIBIT P10 TRUE PHOTOSTAT COPY OF THE NOTICE NO.251 DATED 6.12.2021 ISSUED TO THE 4TH PETITIONER BY THE 4TH RESPONDENT EXHIBIT P11 TRUE PHOTOSTAT COPY OF THE NOTICE NO.254 DATED 6.12.2021 ISSUED TO THE 4TH PETITIONER BY THE 4TH RESPONDENT**