Sathyan C.V v. Guruvayur Devaswom Managing Committee & Ors

## **`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 11[TH] DAY OF APRIL 2023 / 21ST CHAITHRA, 1945 ``` ## **`W.P.(C)NO.40578 OF 2022`** ## **`PETITIONER:`** ``` SATHYAN C.V, AGED 60 YEARS, SON OF VELAYUDHAN, CHELAKUDIKKARAN HOUSE, KANNAMPATHUR, CHENGALOOR.P.O, THRISSUR DISTRICT, KERALA- 680312. ``` ``` BY ADVS. BIJO FRANCIS JOSE KURIAKOSE (VILANGATTIL) ``` ## **`RESPONDENTS:`** ``` 1 [THE ADMINISTRATOR, GURUVAYUR DEVASWOM, DEVASWOM OFFICE, GURUVAYUR, THRISSUR DISTRICT, KERALA-680101.]* ``` ``` * THE DESCRIPTION OF THE RESPONDENT IS CORRECTED AS "GURUVAYUR DEVASWOM MANAGING COMMITTEE, REPRESENTED BY ADMINISTRATOR GURUVAYUR DEVASWOM, DEVASWOM OFFICE, GURUVAYUR, THRISSUR DISTRICT, KERALA 680101” AS PER ORDER DATED 21.12.2022 IN IA NO.1 OF 2022 IN W.P.(C)NO.40578 OF 2022 ``` ``` 2** MANAGER (LIVESTOCK) ``` ``` GURUVAYUR DEVASWOM, DEVASWOM OFFICE, GURUVAYUR, THRISUR DISTRICT, KERALA – 680 101. ``` ``` ** IMPLEADED AS ADDITIONAL 2[ND] RESPONDENT AS PER ``` ``` 2 ``` W.P.(C) No.40578 of 2022 ``` ORDER DATED 11.04.2023 IN IA NO.2 OF 2022 IN W.P.(C)NO.40578 OF 2022) ``` ``` SRI T.K. VIPINDAS - STANDING COUNSEL, GURUVAYUR DEVASWOM MANAGING COMMITTEE. ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 11.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 3 ``` W.P.(C) No.40578 of 2022 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner has entered into Ext.P1 contract with the 1[st] respondent Guruvayur Devaswom Managing Committee for cultivating fodder grass in 30 Acres of Devaswom land comprised in Sy.Nos.81, 83, 84, 85 and 94 in Murkanad Village in Perinthalmanna Taluk, where Vengadu Gokulam of Guruvayur Devaswom situates. The petitioner has filed this writ petition, invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent to immediately comply with the terms of Ext.P1 contract, by making available 30 Acres of land comprised in Sy.Nos.81, 83, 84, 85 and 94 in Murkanad Village for the cultivation of fodder grass, provide water for irrigation and manure from the byres for the entire term of that contract. The petitioner has also sought for an order directing the 1[st] respondent to conduct an internal enquiry, in the light of Ext.P12 reply dated 02.11.2022 obtained under the provisions of the Right to Information Act, 2005, and take appropriate action against the Devaswom employees, who have caused loss to the assets of the Deity, namely, Lord Guruvayurappan. ``` 4 ``` W.P.(C) No.40578 of 2022 2. On 21.12.2022, when this writ petition came up for admission, the learned Standing Counsel for the Guruvayur Devaswom Managing Committee took notice on admission for the respondent and sought time to file counter affidavit. By the order in I.A. No. 2 of 2022, the Manager (Livestock), Guruvayur Devaswom was impleaded as the additional 2[nd] respondent. 3. The 1[st] respondent has filed a counter affidavit dated 14.03.2023, wherein it is contended that the writ petition is not maintainable since the petitioner has not chosen to invoke the alternative remedy available under clause 21 of Ext.P1 agreement, which provides that the disputes, if any, with regard to the said agreement or any actions pursuant to the same shall be within the jurisdiction of Thrissur District Court. As per the tender notification, 30 acres of land in Vengad Gokulam have to be converted for the cultivation of the grass at the cost of the person who succeeds in the tender and the cultivated Hybrid Napier green grass has to be delivered to the Gokulam sheds for the cows. It is the duty of the petitioner to convert the land of the Gokulam, which has special topography, into a normal land fit for cultivation. This has been also mentioned in clause No.3 of Ext.P1 agreement. The survey sketch of the land has also been ``` 5 ``` W.P.(C) No.40578 of 2022 handed over to the petitioner by the Devaswom Surveyor. On 24.08.2020, the petitioner sent a letter to the Managing Committee seeking permission to dig a bore well and to install a motor, to provide a three-phase electric connection, to construct a temporary tank for storing slurry, and to install a weighbridge to weigh the grass. The Managing Committee as per decision No.84 dated 12.11.2020 decided to permit the construction of a temporary tank and other demands have not been considered. The Managing Committee further decided to measure the land which is suitable for grass cultivation and the Devaswom Tahsildar has been authorised to ascertain the remaining land that can be given for the purpose of grass cultivation. As per the tender notification, the Managing Committee decided to develop 30 acres of land for the cultivation of grass. In the said tender, the lowest amount was quoted by one Prakashan, who withdrew from the tender due to ill health and the Managing Committee decided to invite all other participants for negotiation. The Committee as per resolution No.13 dated 13.05.2020 accepted the rate quoted by the petitioner (Rs.1.74/- per kg.) and executed Ext.P1 agreement with the petitioner, for a period of 7 years. The petitioner caused to issue a lawyer notice stating that ``` 6 ``` W.P.(C) No.40578 of 2022 30 Acres of land has not been fully handed over and therefore he had incurred a loss of Rs.2,32,861/-. On receipt of the lawyer notice, the Committee again invited the petitioner for negotiation, who requested to enhance the rate. Accordingly, the Committee - decided to enhance the rate of green grass to Rs.2.74/ per kg. after considering all aspects, and the period of the contract has also been extended for one more year, vide Ext.R1(a) decision No.7 dated 01.12.2021 of the Managing Committee. Therefore, according to the 1[st] respondent, the loss, if any, incurred by the petitioner due to the alleged failure on the part of the Committee to hand over the 30 acres of land has been solved in negotiation, by enhancing the rate of the grass. Based on Ext.R1(a) decision, the Administrator of Guruvayur Devaswom issued Ext.P10 order dated 18.12.2021. Since Ext.R1(a) decision of the Managing Committee has been taken after negotiation with the petitioner, the present claim of the petitioner to implement fully the conditions in Ext.P1 agreement is not legally sustainable. Therefore, the petitioner has no legal right to seek the reliefs sought for in this writ petition. 4. The petitioner has filed a reply affidavit dated 21.03.2023, wherein it is stated that he is not disputing Ext.P1 ``` 7 ``` W.P.(C) No.40578 of 2022 agreement or its terms. The relief sought for is only a direction to the 1[st] respondent to fully comply with the terms of the said agreement. Neither the petitioner nor the 1[st] respondent has not so far disputed the terms of that agreement therefore, clause 21 of Ext.P1 agreement will not oust the jurisdiction of this Court. Since the signing of Ext.P1 agreement, the petitioner has on several occasions requested the 1[st] respondent to handover physical possession of 30 acres of the land comprised in survey numbers 81, 83, 84, 85 and 94 in Murkanad Village. The said fact is not denied by the 1[st] respondent so far. The 1[st] respondent has not stated any cogent reason for not handing over to the petitioner the total extent of the land covered by Ext.P1 agreement. Based on the representations made by the petitioner, the 1[st] respondent has directed its Manager stationed at Vengadu Gokulam to take immediate steps to hand over to the petitioner the balance extent of land for cultivation. However, the Managers of the 1[st] respondent failed to comply with those directions. This is because of the unfortunate state of affairs at Vengadu Gokulam, where the Managers are under the thumb of the local party leaders. This Court has already expressed displeasure about political parties in power deciding or influencing decisions that ``` 8 ``` W.P.(C) No.40578 of 2022 are taken for the day-to-day administration of temple properties. In terms of Ext.P1 agreement, the petitioner is required to prepare the total extent of the land to undertake grass cultivation and procure plumbing materials required for that extent. Accordingly, the petitioner purchased plumbing materials for the entire extent of 30 acres, half of which now remain unutilised, since only 15 acres of land have been handed over. 5. Going by the averments in the reply affidavit, by submitting Ext.P2 representation dated 24.08.2020 the petitioner made the following requests before the 1[st] respondent; “(i) since as per Ext.P1, it is the petitioner who will meet the electricity charges for the motors installed, to install separate electricity meters for the motors used by the petitioner; (ii) to dig 3 wells and install motors of appropriate capacity; (iii) to install a three-phase electrical connection to the existing motors in the wells; (iv) to construct a temporary tank to collect slurry; and (v) to install a weighbridge to weigh the grass.” In response, Ext.P3 decision was taken by the Chief Finance and Accounts Officer of the 1[st] respondent, wherein it was decided that all relevant departments of the Devaswom are to take immediate measures to meet all the five requests made by the petitioner. Therefore, the averments in the counter affidavit filed by the 1[st] respondent that the request for the construction of the ``` 9 ``` W.P.(C) No.40578 of 2022 slurry tank alone was considered is false. In furtherance to Ext.P3, the officers of the 1[st] respondent have not measured the remaining land to be handed over to the petitioner. This is because the land has already been measured prior to Ext.P1 agreement and the sketch is annexed to that agreement. The petitioner was awarded the contract since he submitted the lowest rate in the tender. According to the petitioner, the increase - of Rs.1/ per kilo in the purchase price of the grass and the extension of the term of Ext.P1 agreement are not in lieu of denying possession of the full extent of land as required under the said agreement. Ext.P10 is the final and complete version of the communication that the petitioner received based on Ext.R1(a) decision. In Ext.P10, it is categorically mentioned that, in addition to the increase in the purchase price of the grass, the extension of the term of the contract is on the same terms as it stood before, which means that the extent of the land remains the same. Moreover, Ext.P13 consent letter dated 02.03.2022 issued by the 1[st] respondent, which is one issued 3 months after Ext.R1(a) decision, to apply for an electricity connection for the additional motors to be installed, categorically states that the petitioner is authorised to cultivate grass in 30 acres of land. If, ``` 10 ``` W.P.(C) No.40578 of 2022 as stated in the counter affidavit, the 1[st] respondent has already concluded that the petitioner is compensated for not having possession of the total extent of the land, the 1[st] respondent need not allow the petitioner to procure new electricity connections based on Ext.P13. Moreover, the 1[st] respondent never approached the petitioner to amend the terms of Ext.P1 agreement regarding the extent of land. 6. In the reply affidavit, the petitioner has stated that as evident from Ext.P11 reply received under the Right to Information Act, the current purchase price for the grass is Rs.5.10/- per kg. and local purchases are made for Rs.7.50/- per kg. and at even higher rates. Immediately after the execution of Ext.P1 agreement, the Managers at Vengadu Gokulam are purchasing fodder grass from outside sources at prices five to seven times higher than what is contracted with the petitioner. Until the petitioner insisted, a weighbridge was not installed at Vengadu Gokulam. Till then, the Managers purchased fodder grass without proper estimation of weight. Allowing the petitioner to cultivate fodder grass in the full extent of land, which will meet the entire requirement for about 1400 cows and calves at Vengadu Gokulam, the unscrupulous practice in the purchase of ``` 11 ``` W.P.(C) No.40578 of 2022 fodder grass, which causes huge loss to the assets of the Deity, could have been avoided. From 01.06.2020, the expenses for all raw materials that are required for the cultivation of grass, for instance, the price of diesel for transportation of fodder and for the excavator to prepare the land has gone up at least Rs.15/per litre, so also the electricity charges and labour charges. However, the petitioner never demanded an increase in the purchase price of fodder grass. In the reply affidavit, it is alleged that the 1[st] respondent has no full control over the Managers at Vengadu Gokulam. After denying the right of the petitioner to cultivate in the full extent of land, as agreed upon in Ext.P1 agreement, the Managers of the 1[st] respondent, who are stationed at Vengadu Gokulam, are purchasing fodder grass from other contractors at a higher price than what is contracted with the petitioner, thereby causing huge loss to the assets of the Deity. It is to facilitate this outside purchase, that the petitioner is denied possession of the full extent of land, despite repeated directions from the 1[st] respondent to its Managers. If the petitioner is allowed to cultivate fodder grass, as agreed upon in Ext.P1 agreement, there is no requirement for the outside purchase of fodder grass. ``` 12 ``` W.P.(C) No.40578 of 2022 7. Heard the learned counsel for the petitioner and also the learned Standing Counsel for Guruvayur Devaswom Managing Committee for the respondent. 8. The learned Standing Counsel for Guruvayur Devaswom Managing Committee would raise the question of maintainability of the writ petition, in view of clause 21 of Ext.P1 agreement. The learned counsel would contend that adjudication of the disputed question of facts is legally impermissible in writ proceedings under Article 226 of the Constitution of India. Per contra, the learned counsel for the petitioner would contend that since the terms of Ext.P1 agreement are not in dispute, the issues raised in this writ petition can be decided in writ proceedings under Article 226 of the Constitution of India. 9. In **State of Bihar v. Jain Plastics and Chemicals Ltd. [(2002) 1 SCC 216]** the Apex Court reiterated that a writ petition under Article 226 of the Constitution of India is not the proper procedure for adjudicating disputes relating to the enforcement of contractual obligations. Under the law, it was open to the respondent to approach the court of competent jurisdiction for appropriate relief for breach of contract. It is settled law that when an alternative and equally efficacious ``` 13 ``` W.P.(C) No.40578 of 2022 remedy is open to the litigant, he should be required to pursue that remedy and not invoke the writ jurisdiction of the High Court. Equally, the existence of an alternative remedy does not affect the jurisdiction of the court to issue a writ, but ordinarily, that would be a good ground for refusing to exercise the discretion under Article 226. It is true that many matters could be decided after referring to the contentions raised in the affidavits and counter-affidavits, but that would hardly be a ground for the exercise of extraordinary jurisdiction under Article 226 of the Constitution in case of an alleged breach of contract. Whether the alleged non-supply of road permits by the appellants would justify a breach of contract by the respondent would depend upon facts and evidence and is not required to be decided or dealt with in a writ petition. Such seriously disputed questions or rival claims of the parties with regard to breach of contract are to be investigated and determined on the basis of evidence which may be led by the parties in a properly instituted civil suit rather than by a court exercising the prerogative of issuing writs. 10. In **National Highways Authority of India v. Ganga Enterprises [(2003) 7 SCC 410]** the Apex Court was dealing with a case in which the respondent had filed a writ ``` 14 ``` W.P.(C) No.40578 of 2022 petition before the High Court for refund of the amount. The High Court posed two questions, namely, (a) whether the forfeiture of the security deposit is without the authority of law and without any binding contract between the parties and also contrary to Section 5 of the Contract Act; and (b) whether the writ petition is maintainable in a claim arising out of breach of contract. While dealing with the said issue the Apex Court opined that it is settled law that disputes relating to contracts cannot be agitated under Article 226 of the Constitution of India. It has been so held in **Kerala State Electricity Board v. Kurien E. Kalathil [(2000) 6 SCC 293]** , **State of U.P. v. Bridge and Roof Company (India) Ltd. [(1996) 6 SCC 22]** and **Bareilly Development Authority v. Ajai Pal Singh [(1989) 2 SCC** **116]** . This is settled law. The dispute in the case before the Apex Court was regarding the terms of an offer. They were thus contractual disputes in respect of which a writ court was not the proper forum. The Senior Counsel for the respondent relied upon the decisions in **Verigamto Naveen v. State of A.P. [(2001)** **8 SCC 344]** and **Harminder Singh Arora v. Union of India [(1986) 3 SCC 247]** . The Apex Court noticed that those are cases where the writ court was enforcing a statutory right or ``` 15 ``` W.P.(C) No.40578 of 2022 duty. These cases do not lay down that a writ court can interfere in a matter of contract only. Thus, on the ground of maintainability, the writ petition should have been dismissed. 11. In **Gunwant Kaur v. Municipal Committee, Bhatinda [(1969) 3 SCC 769]** the Apex Court opined that the High Court is not deprived of its jurisdiction to entertain a petition under Article 226 of the Constitution of India merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226, the High Court has jurisdiction to try issues both of fact and law. It is true that exercise of the jurisdiction is discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or ``` 16 ``` W.P.(C) No.40578 of 2022 that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons. 12. In **ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd. [(2004) 3 SCC 553]** the Apex Court, after referring to various judgments as well as the pronouncement in **Gunwant Kaur v. Municipal Committee, Bhatinda [(1969) 3 SCC 769]** and **Century Spinning and Manufacturing Company Ltd. v. Ulhasnagar Municipal Council [(1970) 1 SCC 582]** , held that, merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the Court entertaining such a petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In **Gunwant Kaur [(1969) 3 SCC 769]** the Court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact. ``` 17 ``` W.P.(C) No.40578 of 2022 ## 13. In **ABL International Ltd. [(2004) 3 SCC 553]** the Apex Court laid down the following legal principles; - (a) in an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable. - (b) merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. - (c) a writ petition involving a consequential relief of monetary claim is also maintainable. While laying down the principle, the Apex Court sounded a word of caution as under in paragraph 28; “28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the Court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has the discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. See: **Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1]** . And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional ``` 18 ``` W.P.(C) No.40578 of 2022 mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction.” ## 14. In **State of Kerala v. M.K. Jose [(2015) 9 SCC** **433]** the Apex Court was dealing with a case in which the respondent had earlier challenged the order of termination of the contract before the High Court by filing in W.P.(C)No.22541 of 2013. That writ petition ended in dismissal. He filed W.A.No.1912 of 2013. The Division Bench, by the judgment dated 24.02.2014, allowed that writ appeal. The Division Bench, on the basis of the report of the Advocate Commission, came to the conclusion that the order of termination was founded on erroneous facts, inasmuch as the competent authority had opined that more than 50% of the work remained to be done. The Division Bench opined that, as there was a factual defect, which was evident from the report of the Advocate Commission, the order of termination of the contract is liable to be quashed. After quashing the said order, the Division Bench directed the Superintending Engineer, Public Works Department (Roads and Bridges) to consider and dispose of the matter afresh after affording the contractor an opportunity of being heard. It also directed that the Commission's report and the Engineer's report and the accounts shall be produced by the ``` 19 ``` W.P.(C) No.40578 of 2022 Contractor before the competent authority, who shall take the same into account before taking a final decision in the matter. The State and the official respondents took up the matter before the Apex Court. The Apex Court, after referring to the law laid down in **Jain Plastics and Chemicals Ltd. [(2002) 1 SCC 216] and Ganga Enterprises [(2003) 7 SCC 410]** , reiterated that a writ court should ordinarily not entertain a writ petition under Article 226 of the Constitution of India if there is a breach of contract involving disputed questions of fact. The High Court appointed a Commission to collect the evidence, accepted the same without calling for objections from the respondent, and quashed the order of termination of the contract. The Apex Court observed that the procedure adopted by the High Court is quite unknown to the exercise of powers under Article 226 in a contractual matter. 15. In **M.K. Jose [(2015) 9 SCC 433]** the Apex Court noticed that in **ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd. [(2004) 3 SCC 553]** a Two-Judge Bench after referring to various judgments as well as the pronouncement in **Gunwant Kaur v. Municipal Committee, Bhatinda [(1969) 3 SCC 769]** and **Century** ``` 20 ``` W.P.(C) No.40578 of 2022 **Spinning and Manufacturing Company Ltd. v. Ulhasnagar Municipal Council [(1970) 1 SCC 582]** granted the relief as the facts were absolutely clear from the documentary evidence brought which pertain to interpretation of certain clauses of contract of insurance. The issue that had arisen in **ABL International** was that an instrumentality of a State was placing a different construction on the clauses of the contract of insurance and the insured was interpreting the contract differently. The Court thought it apt, merely because something is disputed by the insurer, it should not enter into the realm of disputed questions of fact. In fact, there was no disputed question of fact, but it required interpretation of the terms of the contract of insurance. Similarly, if the materials that come on record from which it is clearly evincible, the writ court may exercise the power of judicial review. 16. It is well settled that, where the rights which are sought to be agitated are purely of a private character no mandamus can be claimed. Even if the relief is sought against the State or its instrumentality, the precondition for the issuance of a writ of mandamus is a public duty. In a dispute based on a purely contractual relationship, there being no public duty ``` 21 ``` W.P.(C) No.40578 of 2022 element, a writ of mandamus would not lie. 17. In **Bareilly Development Authority v. Ajay Pal Singh [(1989) 2 SCC 116]** the Apex Court noticed that, even conceding that Bareilly Development Authority has the trappings of a State or would be comprehended in 'other authority' for the purpose of Article 12 of the Constitution of India, while determining price of the houses/flats constructed by it and the rate of monthly instalments to be paid, the 'authority' or its agent after entering into the field of ordinary contract acts purely in its executive capacity. Thereafter, the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines the rights and obligations of the parties inter se. In this sphere, they can only claim rights conferred upon them by the contract in the absence of any statutory obligations on the part of Bareilly Development Authority in the said contractual field. 18. The law laid down by the Apex Court in **Radhakrishna Agarwal v. State of Bihar [(1977) 3 SCC 457]** , **Premji Bhai Parmar v. Delhi Development Authority [(1980) 2 SCC 129]** and **Divisional Forest Officer v. Bishwanath Tea Company Ltd. [(1981) 3 SCC 238]** is that, ``` 22 ``` W.P.(C) No.40578 of 2022 where the contract entered into between the State and the - persons aggrieved is non statutory and purely contractual and the rights are governed only by the terms of the contract, no writ or order can be issued under Article 226 of the Constitution of India so as to compel the authorities to remedy a breach of contract pure and simple. ## 19. In **Bishwanath Tea Company Ltd. [(1981) 3 SCC** **238]** the Apex Court considered the question of maintainability of a writ petition in respect of a claim arising out of the contractual rights and obligations flowing from the terms of a lease. The Apex Court held that, it is undoubtedly true that High Court can entertain in its extraordinary jurisdiction a petition to issue any of the prerogative writs for any other purpose. But such writ can be issued where there is executive action unsupported by law or even in respect of a corporation there is a denial of equality before law or equal protection of law. The Corporation can also file a writ petition for enforcement of a right under a statute. On the facts of the case on hand, the Apex Court noticed that Bishwanath Tea Company Ltd., the respondent company, was merely trying to enforce a contractual obligation. The obligation to pay royalty for timber cut and felled and removed is ``` 23 ``` W.P.(C) No.40578 of 2022 prescribed by the relevant regulations. The validity of regulations is not challenged. Therefore, the demand for royalty is unsupported by law. What the respondent claimed was an exception that in view of a certain term in the indenture of lease, i.e., clause 2, the appellant is not entitled to demand and collect royalty from the respondent. This is nothing but enforcement of a term of a contract of lease. Hence, the question was whether such contractual obligation can be enforced by the High Court in its writ jurisdiction. Ordinarily, where a breach of contract is complained of, a party complaining of such breach may sue for specific performance of the contract, if the contract is capable of being specifically performed, or the party may sue for damages. Such a suit would ordinarily be cognisable by the civil court. The High Court in its extraordinary jurisdiction would not entertain a petition either for specific performance of a contract or for recovering damages. A right to relief flowing from a contract has to be claimed in a civil court where a suit for specific performance of a contract or for damages could be filed. 20. The legal principles that can be culled out from the decisions referred to supra are that, in a case where the contract entered into between the State and the person aggrieved is of a ``` 24 ``` W.P.(C) No.40578 of 2022 non-statutory character and the relationship is governed purely in terms of a contract between the parties, the contractual obligations are matters of private law and a writ would not lie to enforce a civil liability arising purely out of a contract. The proper remedy in such cases would be to file a civil suit for claiming damages, injunctions or specific performance or such appropriate reliefs in a competent civil court. Pure contractual obligation in the absence of any statutory complexion would not be enforceable through a writ. 21. In **Joshi Technologies International Inc. v. Union of India [(2015) 7 SCC 728]** the Apex Court held that there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under certain circumstances, it can refuse to exercise. In paragraph 69 of the decision, the Apex Court summarised the circumstances in which the Court would not normally exercise such discretion. In paragraph 70 the Apex Court summarised different situations/ aspects relating to contracts entered into by the State/public authority with private parties. Paragraphs 69 and 70 of the said ``` 25 ``` W.P.(C) No.40578 of 2022 ## decision read thus; “69. The position thus summarised in the aforesaid principles has to be understood in the context of the discussion that preceded which we have pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under certain circumstances, it can refuse to exercise. It also follows that under the following circumstances, “normally”, the Court would not exercise such a discretion: - 69.1. The Court may not examine the issue unless the action has some public law character attached to it. - 69.2. Whenever a particular mode of settlement of dispute is provided in the contract, the High Court would refuse to exercise its discretion under Article 226 of the Constitution and relegate the party to the said mode of settlement, particularly when settlement of disputes is to be resorted to through the means of arbitration. - 69.3. If there are very serious disputed questions of fact which are of complex nature and require oral evidence for their determination. - 69.4. Money claims _per se_ particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances. 70. Further, the legal position which emerges from various judgments of this Court dealing with different situations/aspects relating to contracts entered into by the ``` 26 ``` W.P.(C) No.40578 of 2022 State/public authority with private parties, can be summarised as under: - 70.1. At the stage of entering into a contract, the State acts purely in its executive capacity and is bound by the obligations of fairness. - 70.2. State in its executive capacity, even in the contractual field, is under obligation to act fairly and cannot practise some discriminations. - 70.3. Even in cases where question is of choice or consideration of competing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 of the Constitution could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. In such cases the Court can direct the aggrieved party to resort to alternate remedy of civil suit, etc. - 70.4. Writ jurisdiction of the High Court under Article 226 of the Constitution was not intended to facilitate avoidance of obligation voluntarily incurred. - 70.5. Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the ``` 27 ``` W.P.(C) No.40578 of 2022 terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the licence if he finds it profitable to do so and he can challenge the conditions under which he agreed to take the licence, if he finds it commercially inexpedient to conduct his business. - 70.6. Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages. - 70.7. Writ can be issued where there is executive action unsupported by law or even in respect of a corporation there is denial of equality before law or equal protection of law or if it can be shown that action of the public authorities was without giving any hearing and violation of principles of natural justice after holding that action could not have been taken without observing principles of natural justice. - 70.8. If the contract between private party and the State/instrumentality and/or agency of the State is under the realm of a private law and there is no element of public law, the normal course for the aggrieved party, is to invoke the remedies provided under ordinary civil law rather than approaching the High Court under Article 226 of the Constitution of India and invoking its extraordinary jurisdiction. - 70.9. The distinction between public law and private law element in the contract with the State is getting blurred. However, it has not been totally obliterated ``` 28 ``` W.P.(C) No.40578 of 2022 and where the matter falls purely in private field of contract, this Court has maintained the position that writ petition is not maintainable. The dichotomy between public law and private law rights and remedies would depend on the factual matrix of each case and the distinction between the public law remedies and private law field, cannot be demarcated with precision. In fact, each case has to be examined, on its facts whether the contractual relations between the parties bear insignia of public element. Once on the facts of a particular case it is found that nature of the activity or controversy involves public law element, then the matter can be examined by the High Court in writ petitions under Article 226 of the Constitution of India to see whether action of the State and/or instrumentality or agency of the State is fair, just and equitable or that relevant factors are taken into consideration and irrelevant factors have not gone into the decision-making process or that the decision is not arbitrary. - 70.10. Mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirements of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness. - 70.11. The scope of judicial review in respect of disputes falling within the domain of contractual obligations ``` 29 ``` W.P.(C) No.40578 of 2022 may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes.” 22. In the instant case, the contact entered into between - the petitioner and the 1[st] respondent is of a non statutory character and the relationship is governed purely in terms of the contract between the parties, i.e., Ext.P1 agreement dated 01.06.2020. In such situations, the contractual obligations are matters of private law and a writ under Article 226 of the Constitution of India would not lie to enforce a civil liability arising purely out of that contract, since a pure contractual obligation in the absence of any statutory complexion would not be enforceable through a writ. In the counter affidavit, the 1[st] respondent has raised certain contentions relying on Ext.R1(a) decision taken by the Managing Committee dated 01.12.2021. In that context, the learned Standing Counsel for Guruvayur Devaswom Managing Committee has addressed arguments, relying on the provisions under Section 62 of the Contract Act, 1872 which deals with the effect of novation, rescission, and alteration of contract. Seriously disputed questions or rival claims of the parties with regard to breach of contract are to be ``` 30 ``` W.P.(C) No.40578 of 2022 investigated and determined on the basis of evidence which may be led by the parties in a properly instituted civil suit rather than by a court exercising the prerogative of issuing writs. In such cases, the proper remedy of the person aggrieved would be to approach the competent civil court seeking appropriate reliefs. 23. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the grievance of the petitioner, which is raised in this writ petition, in respect of Ext.P1 contract cannot be decided in the writ jurisdiction of this Court under Article 227 of the Constitution of India. Therefore, the petitioner cannot seek a writ of mandamus commanding the 1[st] respondent to comply with the terms of Ext.P1 contract, by making available 30 Acres of land for the cultivation of fodder grass, to provide water for irrigation and manure from the byres for the entire term of that contract [i.e., relief No.(a)], invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. Therefore, relief No.(a) sought for in this writ petition is declined as not maintainable under Article 226 of the Constitution of India; leaving open the legal and factual contentions raised by both sides. ``` 31 ``` W.P.(C) No.40578 of 2022 24. The further relief sought for in this writ petition, i.e., relief No.(b), is a writ of mandamus commanding the 1[st] respondent to conduct an internal enquiry, in the light of Ext.P12 reply dated 02.11.2022 obtained under the provisions of the Right to Information Act, 2005, and take appropriate action against the Devaswom employees, who have caused loss to the assets of the Deity, namely, Lord Guruvayurappan. 25. Relying on Ext.P11 reply received under the Right to Information Act, the learned counsel for the petitioner would point out that when the current purchase price for the fodder grass supplied by the petitioner is Rs.5.10/- per kg., the local purchase is made at a higher rate. The learned Standing Counsel for Guruvayur Devaswom Managing Committee would point out that, in terms of Ext.P1 contract, the petitioner has been provided with 15 Acres of Devaswom land for cultivating fodder grass, manure from the byres, groundwater, etc. and therefore he cannot raise a contention that there are irregularities in the purchase of fodder grass from outsiders, at a higher rate. The learned Standing Counsel would point out that the petitioner has not made any complaints to the 1[st] respondent Managing Committee on the above aspect. ``` 32 ``` W.P.(C) No.40578 of 2022 ## 26. In **Suo Motu v. Managing Committee, Guruvayur** **Devaswom [2022 (6) KLT 849]** this Court reiterated that the role assigned to Guruvayur Devaswom Managing Committee constituted under Section 3 of the Guruvayur Devaswom Act, 1978, is that of a trustee in management of the properties vested in the deity. The Managing Committee is duty bound to scrupulously follow the stipulations contained in the Act of 1978. Unless a contrary intention, either expressly or by necessary implication, arises from the provisions of the statute in any particular subject or context, Guruvayur Devaswom Managing Committee is legally bound to administer and manage the Devaswom and its properties in accordance with the settled legal principles relating to the administration of Hindu Religious Trusts. The Committee, being the trustee in the management of Devaswom properties, is legally bound to perform its duties with utmost care and caution. 27. In the above circumstances, though relief No.(a) sought for is declined on the ground of maintainability, this writ petition is disposed of by directing the 1[st] respondent Guruvayur Devaswom Managing Committee to conduct a proper enquiry, within two weeks from the date of receipt of a certified copy of ``` 33 ``` W.P.(C) No.40578 of 2022 this judgment, with notice to the petitioner, in order to find out whether there is any irregularity in the local purchase of fodder grass at Vengadu Gokulam. With the above direction, this writ petition is disposed of. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** dkr ``` 34 ``` W.P.(C) No.40578 of 2022 ## **`APPENDIX OF WP(C) 40578/2022`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1 TRUE COPY OF THE AGREEMENT DATED 01-06- 2020 BETWEEN THE PETITIONER & THE RESPONDENT. ``` - **`EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED 2408-2020 FILED BY THE PETITIONER TO THE RESPONDENT.`** - **`EXHIBIT P3 TRUE COPY OF THE ORDER DATED 15-12-2020 OF THE RESPONDENT DIRECTING THE RESPONDENT'S EMPLOYEES TO IMMEDIATELY COMPLY WITH THE TERMS OF EXHIBIT P1.`** - **`EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 0803-2021 FILED BY THE PETITIONER TO THE RESPONDENT.`** - **`EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 3003-2021 FILED BY THE PETITIONER TO THE RESPONDENT.`** - **`EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 1904-2021 FILED BY THE PETITIONER TO THE RESPONDENT.`** - **`EXHIBIT P7 TRUE COPY OF THE ORDER DATED 04-06-2021 OF THE RESPONDENT, ALONG WITH TYPED LEGIBLE COPY`** - **`EXHIBIT P8 TRUE COPY OF THE LAWYER NOTICE DATED 0507-2021.`** ``` EXHIBIT P9 TRUE COPY OF THE REPORT OF THE LIVESTOCK MANAGER DATED 05-10-2021. ``` ``` EXHIBIT P10 TRUE COPY OF THE ORDER DATED 18-12-2021 OF THE RESPONDENT. EXHIBIT P11 TRUE COPY OF THE RTI APPLICATION FILED BY THE RESPONDENT DATED 1210-2022. ``` ``` 35 ``` W.P.(C) No.40578 of 2022 ``` EXHIBIT P12 TRUE COPY OF THE REPLY OF THE RESPONDENT DATED 02-11-2022. EXHIBIT P13 TRUE COPY OF THE CONSENT LETTER DATED 02- 03-2022 ISSUED BY THE 1ST RESPONDENT RESPONDENT EXHIBITS EXHIBIT R1(A) TRUE COPY OF THE DECISION NO. 7 OF GURUVAYUR DEVASWOM MANAGING COMMITTEE DATED 1.12.2021 ```