Sabarimala Vyapari Vyavasayi Ekopana Samathi v. Travancore Devaswom Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 13TH DAY OF OCTOBER 2020 / 21ST ASWINA, 1942** **WP(C).No.21621 OF 2020(C)** ## **PETITIONERS:** 1 **SABARIMALA VYAPARI VYAVASAYI EKOPANA SAMATHI REGD.NO.PTM/TC/9/2019** **SABARIMALA SANNIDHANAM P.O, PATHANAMTHITTA, PIN-689662, REPRESENTED BY ITS SECRETARYMUHAMMED SANEER M., SON OF MUHAMMED KUTTY, AGED 40 YEARS, RESIDING AT PUTHENVEEDU, ALISSERY WARD, ALAPPUZHA, PIN-688001 MOB.NO.9400058595** **2 RIJI S., S/O.SIVADAS, AGED 48 YEARS, RANI NIVAS, MUTTAPPALAM P.O, THACODE, VARKALA, PIN-695145** **BY ADVS.** **SRI.ASOK M.CHERIAN SRI.N.SATHEESH SRI.K.JANARDHANA SHENOY** ## **RESPONDENTS:** **1 THE TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY OFFICE OF THE TRAVANCORE DEVASWOM BOARD NANTHANCODE, THIRUVANANTHAPURAM-695033** **W.P.(C).21621/2020** 2 **2 THE DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD OFFICE OF THE TRAVANCORE DEVASWOM BOARD NANTHANCODE, THIRUVANANTHAPURAM-695033** - **3 THE EXECUTIVE OFFICER SABARIMALA DEVASWOM, PAMPA THRIVENI P.O PATHANAMTHITTA, PIN-689662 SRI. G.BIJU, SC, TDB** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C).21621/2020** 3 ## **JUDGMENT** _Ravikumar, J._ This writ petition is filed by an organisation by name Sabarimala Vyapari Vyavasayi Ekopana Samathi registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. It claims that it is an organisation of traders who conduct various business activities at Sabarimala during pilgrimage season in each year acquiring the right through auction when tenders are invited by the first respondent-Travancore Devaswom Board (TDB). The second petitioner is a member of the first petitioner-organisation. He obtained the right to conduct business mentioned in Serial No.36 of the schedule attached to Ext.P2 notification, during the season extending from 11.11.2019 to 31.10.2020. Essentially, the contention of the petitioner-organisation is that its members including the second petitioner participated in the auction and obtained the right to do business in Sabarimala during 2019-2020 season on the legitimate expectation and belief that they **W.P.(C).21621/2020** 4 would be able to conduct the permitted business for a total period of 142 days. It is also stated that persons named in Ext.P4 had earlier conducted business in Sabarimala during the pilgrimage seasons 2017-2018 and 2018-2019. During the season 2017-2018, owing to the flood occurred in August, 2018 and the situations prevailed immediately after the pronouncement of the verdict regarding the right of women to worship in Sabarimala, they could not conduct their activities. We may hasten to add at this juncture that the said contention is bereft of any basis for the simple reason that during the seasons 2017-2018 and 2018-2019, pilgrimage was conducted and there was no prohibition for the successful bidders to conduct business. Even the petitioners did not have any such case. May be the petitioners were not able to generate business income to their satisfaction or their expectation. Be that as it may, the contention is that since such situations caused heavy loss to them, they could recoup at least part of their loss in case they are permitted to continue business beyond 31.10.2020 during this season or at least for 72 days **W.P.(C).21621/2020** 5 more. Raising such claims and contentions, the petitionerorganisation submitted Ext.P5 representation. It is the nonconsideration of the said representation that constrained the petitioners to file the captioned writ petition seeking the following reliefs:- - a) to issue a Writ in the nature of mandamus directing the Respondents to allow the traders represented by the 1[st] petitioner organisation whose names mentioned in Exhibit P4 to conduct business for at least 72 days of pilgrimage in Sabarimala during the year 20202021 commencing from November 2020. - b) to issue a Writ in the nature of mandamus directing not to invite tenders for conducting business in Sabarimala for the year 2020-2021 commencing from 11.11.2020, without considering Exhibit P5 representation and passing orders thereon.” 2. Heard the learned counsel for the petitioners and the learned standing counsel appearing for the TDB. The afore-extracted reliefs sought for in the writ petition would reveal that the petitioners are seeking issuance of writ of mandamus. There can be no doubt with respect to the position that the prerogative of mandamus could be **W.P.(C).21621/2020** 6 granted when legal duty is imposed on the authority in question and the person approaches this Court got a legal right to compel the performance of that duty. In other words, the existence of a legal right in the petitioner and the corresponding legal duty on the respondent are the conditions precedent for issuance of a writ of mandamus. We have no hesitation at all to hold that the first petitioner organisation and its members who conducted business or who are conducting business, on the strength of becoming successful bidders and upon due authorisation, in accordance with law, cannot claim any legal right to conduct business in Sabarimala. Such activities are permissible in Sabarimala only when the shrine is opened and subject to conditions and restrictions. Hence, the petitioners cannot be heard to contend that the TDB got legal duty to permit them to conduct business during the ensuing Mandala-Makaravilakku season as well. It is indisputable that each year the right to conduct the permitted business activities in Sabarimala is being given after issuing tender notifications and conducting auction, in accordance with prescribed procedures. The **W.P.(C).21621/2020** 7 learned standing counsel for TDB submitted that this year also, as in the case of yesteryears, notification has been issued. 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. When that be the circumstances, the first petitioner is not justified in contending that it is an organisation of persons to conduct business activities at Sabarimala during pilgrimage season. May be its members were fortunate to get such rights for a limited period upon becoming the successful bidders for the season concerned. But such rights will not be available for the next season unless they could succeed in the next year's auction. We have already taken note of the fact that the grievance of the first petitioner raised on behalf of its members including the second petitioner is that last year, they participated in the auction under the impression that they could conduct business for a period of 142 days. As an impact of the **W.P.(C).21621/2020** 8 COVID-19 pandemic, they could conduct business only for a period of 70 days as there was no pilgrimage from March 2020 onwards. The prayer is for issuance of writ of mandamus to allow the members of the first petitioner including the second 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 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 **W.P.(C).21621/2020** 10 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. **Sd/C.T.RAVIKUMAR JUDGE Sd/K.HARIPAL JUDGE** **W.P.(C).21621/2020** 11 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** - **EXT.P1:A TRUE COPY OF THE CERTIFICATE OF REGISTRATION DATED 16.01.2019 OF THE 1ST PETITIONER ORGANISATION ISSUED BY THE REGISTRAR UNDER TRAVANCORE-COCHIN LITERARY, SCIENTIFIC AND CHARITABLE SOCIETIES REGISTRATION ACT, 1955.** - **EXT.P2:A TRUE COPY OF THE NOTIFICATION DATED 16.07.2019 ISSUED BY THE THIRD RESPONDENT AS AUTHORISED BY THE 1ST RESPONDENT INVITING TENDERS FOR CONDUCTING SCHEDULED BUSINESS ACTIVITIES AT SABARIMALA DURING VARIOUS FESTIVALS IN THE SEASON YEAR 2019-2020 COMMENCING FROM 11.11.2019.** - **EXT.P3:A TRUE COPY OF THE CERTIFICATE DATED 16.11.2019 ISSUED BY THE 3RD RESPONDENT SHOWING THAT THE 2ND PETITIONER HAS AUCTIONED THE RIGHT TO CONDUCT BUSINESS SCHEDULED AS SERIAL NO.36 IN THE SCHEDULE TO EXHIBIT P2 FOR THE YEAR 2019-2020.** - **EXT.P4:THE DETAILS OF THE MEMBERS OF THE 1ST PETITIONER WHOSE GRIEVANCES ARE VINDICATED IN THE WRIT PETITION SEEKING RELIEFS THERETO.** - **EXT.P5:A TRUE COPY OF THE REPRESENTATION DATED 6.10.2020 SUBMITTED BY THE 1ST PETITIONER ON BEHALF OF THEIR MEMBERS MENTIONED IN EXHIBIT P4, ADDRESSED TO THE 2ND RESPONDENT WITH COPIES TO THE OTHER RESPONDENTS.** ## **spc/**