Sunilkumar P.G v. State of Kerala and 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 ``` ``` TUESDAY, THE 19[TH] DAY OF JULY 2022 / 28TH ASHADHA, 1944 ``` ## **`WP(C) NO.19465 OF 2022`** ``` PETITIONER: ``` ``` SUNILKUMAR P.G, AGED 43 YEARS S/O.GOPALAKRISHNAN MANIKANDDAVILASAM, MANNIRAM P.O., RANNI, PATHANAMTHITTA DISTRICT, PIN - 689 672. ``` ``` BY ADVS. V.H.JASMINE JESWIN P.VARGHESE REETHU JACOB ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REP. BY ITS SECRETARY TO GOVERNMENT, REVENUE (DEVASWOM) DEPARTMENT, THIRUVANANTHAPURAM-695001.`** - **`2 THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, DEVASWOM BOARD HEAD QUARTERS, NANTHENCODE, THIRUVANANTHAPURAM695003.`** - **`3 THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, KAVADIYOR P.O NANDANCODE, NANTHENCODE, THIRUVANANTHAPURAM-695003.`** - **`4 THE EXECUTIVE OFFICER, TRAVANCORE DEVASWOM BOARD, SABARIMALA, PAMPA TRIVENI P.O., PATHANAMTHITTA-689670.`** - **`5 THE ASSISTANT EXECUTIVE OFFICER TRAVANCORE DEVASWOM BOARD, SABARIMALA. PAMPA TRIVENI P.O., PATHANAMTHITTA-689670.`** - **`BY ADV.`** 2 W.P.(C)No.19465 of 2022 ``` SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD ``` ``` SRI S.RAJMOHAN- SR GOVERNMENT PLEADER ; SRI N.RAGHURAJ- AMICUS CURIAE ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P.(C)No.19465 of 2022 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner, who is stated to be an 'A' class contractor, carrying out various contract works in the Travancore Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P3 communication dated 05.06.2022 issued on behalf of the 4[th] respondent Executive Officer, Sabarimala, by the 4[th] respondent Assistant Executive Officer, and a writ of mandamus commanding the respondents not to take any coercive action against the petitioner. On 21.06.2022, when this writ petition came up for consideration, the learned Standing Counsel for Travancore Devaswom Board sought time to get instructions, who was directed to make available for the perusal of this Court, the files relating to Ext.P3. 2. On 28.06.2022, the learned Standing Counsel for Travancore Devaswom Board has made available for the perusal of this Court, the files relating to Ext.P3. From the file notes in ROC No.1221/21/SAB, this Court noticed that, though it was specifically noted on 19.04.2022 that notice can be issued to the 4 ## W.P.(C)No.19465 of 2022 petitioner in terms of the decision taken by the Board to blacklist him from participating in the auctions for Kuthaka item in any temple under the Travancore Devaswom Board, including Sabarimala, in the file note dated 23.04.2022, it is noted that there is no necessity to issue any such notice. Therefore, the 3[rd] respondent Devaswom Commissioner was directed to file counter affidavit with specific reference to the said file note. 3. The 3[rd] respondent Devaswom Commissioner has filed a counter affidavit dated 04.07.2022, wherein it is stated that, the petitioner is the successful bidder for the right to conduct cloak room in Pamba during 2021-22. He was the contractor, who regularly bid the toilet block at Pamba for the past several years. During 2021-22 he quoted a high rate and abstained from remitting the tender amount and played all sorts of tactics to pressurise the Board to give the contract to him on a nominal amount. The contract for conduct of toilet block in Pamba for 2021-22 was given to one Santhosh, who quoted the highest rate among the sealed quotations received. Thereafter, petitioner used to cause constant threat and other illegal activities to obstruct the smooth functioning of the toilets in 5 ## W.P.(C)No.19465 of 2022 Pamba operated through the said Santhosh. The 4[th] respondent Executive Officer, Sabarimala reported that the petitioner and his men physically assaulted Santhosh and his helpers and attempted to obstruct the functioning of the toilet blocks. He has done all these acts with the intention to threaten the present bidder to keep him away and to stall the operation of the toilets in Pamba, thereby to cause difficulties to the devotees, so that he can grab the contract from him. When this incident first occurred, Santhosh had lodged a complaint to the Pamba Police and both parties were called to the station and released the petitioner on the assurance that he would not cause any further problems. Even thereafter, Santhosh and his co-workers were manhandled by the petitioner and his men and they sustained injuries. The Police registered Crime No.4/22 of Pamba Police Station against the petitioner, alleging offences under Sections 294(b), 506(i), 341, 323, 324 and 34 of the Indian Penal Code against the petitioner. Faced with the constant attacks and criminal activities of the petitioner, the Executive Officer reported the matter to the Devaswom Commissioner requesting to take stringent action against the petitioner. Accordingly, the matter 6 ## W.P.(C)No.19465 of 2022 was reported to the Travancore Devaswom Board to take a decision as to the further course to be adopted in the matter. The matter was considered by the Board and the Board vide Ext.R3(a) order dated 23.03.2022 directed the Devaswom Commissioner to take further proceedings to blacklist the petitioner from taking part in future auctions of the temples under the Travancore Devaswom Board. The order of the Board was forwarded to the concerned section for taking further steps in the matter. The Section Officer recorded in the file that a notice should be given to the petitioner. Considering the seriousness of the matter to take immediate action in the matter, the Devaswom Commissioner noted that no notice need be given and it was directed to take immediate action. Since a criminal case was registered against the petitioner and to prevent the further threat and atrocities from his side, he was blacklisted as directed by the Board. The order blacklisting the petitioner was issued with the bonafide intention to keep him away from future tender proceedings of the Board and to have a peaceful atmosphere in Pamba. Ext.P3 is the communication given by the 4[th] respondent to the petitioner informing him that he is 7 ## W.P.(C)No.19465 of 2022 blacklisted from participating in the tender proceedings of the Board, including that at Sabarimala. The petitioner submitted Ext.R3(b) representation before the Devaswom Commissioner on 27.06.2022, requesting to reconsider the decision blacklisting him and to permit him to participate in the tender proceedings of the Board. On receipt of Ext.R3(b) representation, the Devaswom Commissioner decided to treat the earlier decision as a provisional order and to give an opportunity of hearing to the petitioner before taking final decision in the matter. Accordingly, Ext.R3(c) notice was issued to the petitioner to appear for the hearing scheduled on 04.07.2022. The petitioner attended the hearing and the final decision in the matter will be taken immediately and the same will be communicated to the petitioner. 4. The petitioner has filed a reply affidavit dated 16.07.2022 to the counter affidavit filed by the 3[rd] respondent, wherein it is stated that the procedure adopted by the respondents, who allotted the contract for conducting toilet block in Pamba to one Santhosh, is against the tender procedure, for that petitioner already approached this Court by filing 8 ## W.P.(C)No.19465 of 2022 W.P.(C)No.29772 of 2021 and the matter is pending before this Court. He never involved in any activities mentioned in paragraph 3 of the counter affidavit. Since the petitioner approached before this Court by filing W.P.(C)No.29772 of 2021, the respondents along with Santhosh and his friends made attempts to take revenge against him and filed false cases against him, against which he filed Exts.P1 and P2. On receipt of Ext.R3(c) notice, the petitioner appeared for the personal hearing held on 04.07.2022. The 3[rd] respondent issued Ext.P4 notice dated 07.07.2022 to the petitioner and directed him to remit the balance amount. On 11.07.2022 petitioner remitted total amount of Rs.22,12,500/-, including interest at the rate of 18%, vide Ext.P5 receipt No.ST 803 dated 11.07.2022 issued from the Dhanalakshmi Bank, Pathanamthitta Branch. 5. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for the 1[st] respondent and also the learned Standing Counsel for Travancore Devaswom Board for respondents 2 to 5. 6. The learned counsel for the petitioner would contend that Ext.P3 order is one issued in violation of the principles of 9 ## W.P.(C)No.19465 of 2022 natural justice. No notice whatsoever has been issued to the petitioner to show cause why he should be blacklisted from taking part in future auctions for Kuthaka items in the temples under the management of the Travancore Devaswom Board. 7. Per contra, the learned Standing Counsel for Travancore Devaswom Board would submit that the order blacklisting the petitioner was issued with a bonafide intention to keep him away from future tender proceedings of the Board, in order to have a peaceful atmosphere in Pamba. On 27.06.2022, the petitioner submitted Ext.R3(b) representation for reconsideration of that decision. On receipt of that representation the 3[rd] respondent Devaswom Commissioner decided to treat the earlier decision as a provisional order and to give him opportunity of hearing, by issuing Ext.R3(c) notice. Accordingly, the petitioner attended the personal hearing and a final decision in the matter will be taken immediately. 8. Travancore-Cochin Hindu Religious Institutions Act, 1950 enacted by the State Legislature makes provision for the administration, supervision and control of incorporated and unincorporated Devaswoms and of other Hindu Religious 10 W.P.(C)No.19465 of 2022 Endowments and Funds. As per sub-section (3) of Section 1 of the Act, substituted by the Kerala Adaptation of Laws Order, 1956, Part I of the Act shall extend to Travancore, Part II of the Act shall extend to Cochin and Part III of the Act shall extend to the whole of the State of Kerala, excluding the Malabar District. Sabarimala Devaswom is an incorporated Devaswom mentioned in Schedule I of the Act, under Chengannur Group, Pathanamthitta Taluk. 9. Chapter II of the Act deals with the Travancore Devaswom. Section 3 of the Act deals with vesting of administration in Board. Section 4 of the Act deals with constitution of the Travancore Devaswom Board. As per subsection (2) of Section 4, the Board shall be a body corporate having perpetual succession and a common seal with power to hold and acquire properties for and on behalf of the incorporated and unincorporated Devaswoms and Hindu Religious Institutions and Endowments under the management of the Board. 10. Section 15 of the Act deals with vesting of jurisdiction in the Board. As per sub-section (1) of Section 15, subject to the provisions of Chapter III of Part I, all rights, authority and 11 ## W.P.(C)No.19465 of 2022 jurisdiction belonging to or exercised by the Ruler of Travancore prior to the first day of July, 1949, in respect of Devaswoms and Hindu Religious Endowments shall vest in and be exercised by the Board in accordance with the provisions of this Act. As per sub-section (2) of Section 15, the Board shall exercise all powers of direction, control and supervision over the incorporated and unincorporated Devaswoms and Hindu Religious Endowments under their jurisdiction. 11. Section 15A of the Act, inserted by Act 5 of 2007, with effect from 12.04.2007, deals with duties of the Board. As per Section 15A, it shall be the duty of the Board to perform the following functions, namely, (i) to see that the regular traditional rites and ceremonies according to the practice prevalent in the religious institutions are performed promptly; (ii) to monitor whether the administrative officials and employees and also the employees connected with religious rites are functioning properly; (iii) to ensure proper maintenance and upliftment of the Hindu religious institutions; (iv) to establish and maintain proper facilities in the temples for the devotees. Section 16 of the Act deals with supervision and control by the Board. As per 12 ## W.P.(C)No.19465 of 2022 Section 16, the Board shall, subject to the provisions of Part I of the Act, exercise supervision and control over the acts and proceedings of all officers and servants of the Board and of the Devaswom Department. 12. Section 24 of the Act deals with maintenance of Devaswoms, etc., out of Devaswom Fund. Section 27 of the Act deals with Devaswom properties. Section 31 of the Act deals with management of Devaswoms. As per Section 31, subject to the provisions of Part I and the rules made thereunder, the Board shall manage the properties and affairs of the Devaswoms, both incorporated and unincorporated as heretofore, and arrange for the conduct of the daily worship and ceremonies and of the festivals in every temple according to its usage. ## 13. In **M.V. Ramasubbiar v. Manicka Narasimachara** **[(1979) 2 SCC 65]** , in the context of Sections 49, 51 and 52 of the Trusts Act, 1882, the Apex Court explained the nature of the fiduciary position of the trustee and his duties and obligations. It is the duty of the trustees of the property to be faithful to the Trust and execute any document with reasonable diligence in the manner of an ordinary prudent man of business would conduct 13 ## W.P.(C)No.19465 of 2022 his own affairs. A trustee could not therefore occasion any loss to the Trust and it is his duty to sell the property, if at all that was necessary, to best advantage. Paragraph 4 of that decision reads thus; “4. There is some controversy on the question whether Defendant 1 made an outright purchase of the suit property for and on behalf of the trust for Rs. 21,500 on April 19, 1959, or whether he intended to purchase it for himself and then decided to pass it on to the trust, for defendants have led their evidence to show that the property was allowed to be sold for Rs. 21,500/-, which was less than its market value, as it was meant for use by the trust and that Defendant 1 was not acting honestly when he palmed off the property to his son soon after by the aforesaid sale deed Ext.B13 dated July 14, 1960. The fact, however, remains that Defendant 1 was the trustee of the property, and it was his duty to be faithful to the trust and to execute it with reasonable diligence in the manner an ordinary prudent man of business would conduct his own affairs. He could not therefore occasion any loss to the trust and it was his duty to sell the property, if at all that was necessary, to best advantage. It has in fact been well recognised as an inflexible rule that a person in a fiduciary position like a trustee is not entitled to make a profit for himself or a member of his family. It can also not be gainsaid that he is not allowed to put himself in any such position in which a conflict may arise between his duty and personal interest, 14 ## W.P.(C)No.19465 of 2022 and so the control of the trustee's discretionary power prescribed by Section 49 of the Act and the prohibition contained in Section 51 that the trustee may not use or deal with the trust property for his own profit or for any other purpose unconnected with the trust, and the equally important prohibition in Section 52 that the trustee may not, directly or indirectly, buy the trust property on his own account or as an agent for a third person, cast a heavy responsibility upon him in the matter of discharge of his duties as the trustee. It does not require much argument to proceed to the inevitable further conclusion that the Rule prescribed by the aforesaid sections of the Act cannot be evaded by making a sale in the name of the trustee's partner or son, for that would, in fact and substance, indirectly benefit the trustee. Where therefore a trustee makes the sale of a property belonging to the trust, without any compelling reason, in favour of his son, without obtaining the permission of the court concerned, it is the duty of the court, in which the sale is challenged, to examine whether the trustee has acted reasonably and in good faith or whether he has committed a breach of the trust by benefitting himself from the transaction in an indirect manner. The sale in question has therefore to be viewed with suspicion and the High Court committed an error of law in ignoring this important aspect of the law although it had a direct bearing on the controversy before it.” (underline supplied) (underline supplied) ## 14. In **Rajani P. Kuttan v. State of Kerala [2021 (6)** 15 W.P.(C)No.19465 of 2022 **KHC 513]** a Division Bench of this Court noticed that among the 1250 Temples managed by 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. 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. 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 16 ## W.P.(C)No.19465 of 2022 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 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.” (underline supplied) 15. In **A.A. Gopalakrishnan v. Cochin Devaswom** **Board [(2007) 7 SCC 482]** a Three-Judge Bench of the Apex Court held that the properties of deities, temples and Devaswom Boards are required to be protected and safeguarded by their 17 ## W.P.(C)No.19465 of 2022 trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of ‘fences eating the crops’ should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation. 16. In **Travancore Devaswom Board v. Mohanan Nair [(2013 (3) KLT 132]** a Division Bench of this Court noticed that in **A.A. Gopalakrishnan [(2007) 7 SCC 482]** the Apex Court emphasised that it is the duty of the courts to protect and safeguard the interest and properties of the religious and charitable institutions. The relevant principles under the Hindu law will show that the Deity is always treated similar to that of a 18 ## W.P.(C)No.19465 of 2022 minor and there are some points of similarity between a minor and a Hindu idol. The High Court therefore is the guardian of the Deity and apart from the jurisdiction under Section 103 of the Land Reforms Act, 1957 viz. the powers of revision, the High Court is having inherent jurisdiction and the doctrine of parents patriae will also apply in exercising the jurisdiction. Therefore, when a complaint has been raised by the Temple Advisory Committee, which was formed by the devotees of the Temple, about the loss of properties of the Temple itself, the truth of the same can be gone into by the High Court in these proceedings. 17. In **Suneesh K.S. [ILR 2022 (1) Ker. 1091: 2022 SCC OnLine Ker 611]** we held that, the properties of deities and temples are required to be protected and safeguarded from usurpation or encroachment in any manner. Persons entrusted with the duty to manage such properties should be vigilant to prevent such usurpation or encroachment. When such usurpation or encroachment is possible only with the passive or active collusion of the authorities concerned, such acts of ‘fences eating the crops’ should be dealt with sternly. The officers concerned and also the devotees should be vigilant to prevent 19 ## W.P.(C)No.19465 of 2022 any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from usurpation or encroachment, wrongful claims or misappropriation. Therefore, the concerned Assistant Devaswom Commissioner and the Administrative Officer shall take stern action against those who have defaulted payment of instalments in respect of the Kuthaka items, in violation of the tender conditions, if found necessary, after seeking police assistance. If any such request is received, it is the duty of the concerned Station House Officer to render necessary assistance to the concerned Assistant Devaswom Commissioner or the Administrative Officer, in order to protect and safeguard the properties of deities and temples from usurpation or encroachment in any manner. Proceedings under clause (23) of the tender conditions shall also be initiated against - such defaulters, for black listing. In the said decision rendered on 01.02.2022, the Secretary of the Travancore Devaswom Board was directed to issue a circular, within one month from the date of receipt of a certified copy of that judgment, requiring the concerned Assistant Devaswom Commissioner and the 20 ## W.P.(C)No.19465 of 2022 Administrative Officer to take stern action against those who have defaulted payment of instalments in respect of the Kuthaka items, in violation of the tender conditions. 18. In **Abu K.S. v. Travancore Devaswom Board and** **others [2022 SCC OnLine Ker 1642]** [judgment dated 09.02.2022 in W.P.(C)No.2254 of 2022] a Division Bench of this Court, in which both of us were parties, was dealing with a case in which Kuthaka right for running Aymanam Sri Narasimhaswami Auditorium (sadyalayam) constructed by the Travancore Devaswom Board was auctioned for a period of two years from 01.08.2019 to 31.07.2021, for Rs.2,41,000/-. The average monthly income generated from the said building constructed by the Travancore Devaswom Board by spending several lakhs of rupees was only Rs.10,000/-. Relying on the law laid down by the Apex Court in **M.V. Ramasubbiar [(1979) 2 SCC 65** ] this Court held that, while auctioning the right for running that sadyalayam, the Travancore Devaswom Board and its officials have to ensure that proper income to the Board is generated from the said building. In case of any default committed by the successful bidder in remitting the balance auction amount, 21 ## W.P.(C)No.19465 of 2022 electricity charges or any other statutory dues payable as per the tender conditions, the concerned Assistant Devaswom Commissioner and the Sub Group Officer have to take prompt action against such bidder and the said fact has to be promptly reported to the concerned officer in the Estate Division of the Travancore Devaswom Board. ## 19. In **Abu K.S. [2022 SCC OnLine Ker 1642]** the writ petitioner, the successful bidder, remitted only 50% of the auction amount on 18.07.2019. Though he had defaulted payment of the balance amount of Rs.1,20,500/-, he was permitted to continue to occupy the sadyalayam, even beyond the period of auction, i.e., 31.07.2021. The concerned Assistant Commissioner and the Sub Group Officer have not taken any action against the successful bidder till the order of this Court dated 01.02.2022, whereby they were directed to take over possession of the sadyalayam forthwith, if found necessary with police assistance. In such circumstances, in the said decision, this Court deprecated in the strongest words the conduct of the concerned Assistant Commissioner and the Sub Group Officer and also the concerned officers in the Estate Division of the 22 ## W.P.(C)No.19465 of 2022 Travancore Devaswom Board in taking no action against the successful bidder, who was a defaulter. In the said decision, this Court found that, the concerned officers of the Travancore Devaswom Board have not shown reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs. Since, such irregularities in the conduct of auction for running auditoriums/sadyalayams in the temples under the management of the Travancore Devaswom Board cannot be permitted in future, this Court directed Registry to initiate _suo motu_ proceedings in that matter. 20. The petitioner had approached this Court in W.P.(C)No.18537 of 2022, challenging a notice dated 17.05.2022 (Ext.P39), issued by the 4[th] respondent Executive Officer whereby he was directed to remit the balance bid amount of Rs.20,00,000/- together with penal interest in respect of the Kuthaka item for conducting cloak room and stall at Pamba in Sabarimala for the year 1197ME (2021-22). That writ petition was dismissed by the judgment dated 08.06.2022, declining interference on the notice dated 23.05.2022 issued by the 4[th] respondent Executive Officer and also the proceedings initiated 23 ## W.P.(C)No.19465 of 2022 pursuant to that notice. By that judgment, respondents 2 to 4 herein were directed to proceed against the petitioner, in accordance with law, taking note of the law laid down by this Court in **Suneesh K.S. [ILR 2022 (1) Ker. 1091]** and also the general directions contained therein. Paragraphs 24 to 28 of that ## judgment read thus; “24. As already noticed hereinbefore, despite the default in payment of the balance bid amount of Rs.20,00,000/together with penal interest at the rate of 18% from 24.12.2021, and penal interest at the said rate for the belated payment of Rs.5,00,000/- made on 14.03.2022, from 24.12.2021 till the date of such payment, the petitioner is permitted to continue as Kuthaka holder for conducting cloak room and stall at Pamba. Among the 1250 temples managed by the 2[nd] respondent Board, only 60 major temples are self-sufficient, and the rest are being managed utilising the surplus income from Sabarimala Devaswom. In view of the law laid down in **Suneesh K.S. [ILR 2022 (1) Ker. 1091 : 2022 SCC OnLine Ker 611]** the 4[th] respondent Executive Officer ought to have reported the default committed by the petitioner to the 3[rd] respondent Devaswom Commissioner for taking stern action against the petitioner, who has defaulted payment of balance bid amount in respect of the Kuthaka item, in violation of the tender conditions. The competent authority in the 2[nd ] respondent Board 24 W.P.(C)No.19465 of 2022 ought to have initiated proceedings against the petitioner for cancellation of the bid, followed by recovery proceedings and also proceedings for blacklisting. 25. After repeated demand notices, the petitioner was issued with Ext.P36 notice dated 14.04.2022 and Ext.P39 notice dated 17.05.2022, whereby the petitioner was informed that on account of the default in payment of the balance bid amount, he will have to face recovery proceedings and other penal actions, including proceedings for blacklisting. 26. During the course of arguments, the learned Standing Counsel for Travancore Devaswom Board has made available for the perusal of this Court a proceedings dated 17.05.2022 of the 3[rd] respondent Devaswom Commissioner, whereby the petitioner has been blacklisted from participating in the auction for Kuthaka items in temples under the Travancore Devaswom Board, including Sabarimala. In the said order it is noticed that during Mandala-Makaravilakku Festival of 1197ME and also Masapooja and Thiru-Ulsavam, the petitioner attacked the successful bidder for toilet block at Pamba Manalppuram and his associates, which had resulted in registration of various crimes in Pamba Police Station. We do not propose to consider the legality or otherwise of the order dated 17.05.2022 of the 3[rd] respondent Devaswom Commissioner, whereby the petitioner is blacklisted, since it is beyond the scope of this writ petition. The learned counsel for the petitioner would submit that the petitioner is yet to be issued with a copy of the said order and the 25 W.P.(C)No.19465 of 2022 petitioner will challenge that order in appropriate proceedings. 27. In the above circumstances, we find no reason to interfere with Ext.P39 notice dated 23.05.2022 issued by the 4[th] respondent Executive Officer, Sabarimala and also the proceedings initiated pursuant to that notice, on account of the default on the part of the petitioner in remitting the balance bid amount in respect of Kuthaka item No.115 in Ext.P1 tender notification. The relief sought for in this writ petition in respect of the proceedings initiated pursuant to Ext.P39 notice dated 23.05.2022 of the 4[th] respondent Executive Officer are declined. It would be open to the petitioner to pursue the representations, if any, pending before 3[rd] and 4[th] respondents, in respect of Kuthaka items for the previous years, in case he is having a legal right for claiming such amount as per the tender conditions applicable for the previous years. 28. In the result, this writ petition fails and the same is accordingly dismissed, subject to the aforesaid observations. Respondents 2 to 4 shall proceed against the petitioner, in accordance with law taking note of the law laid down by this Court in **Suneesh K.S. [ILR 2022 (1) Ker. 1091]** and also the general directions contained therein.” 21. In **State of Kerala v. M.K. Jose [(2015) 9 SCC 433]** the Apex Court was dealing with a case in which the plaintiff had earlier challenged the order of termination of 26 ## W.P.(C)No.19465 of 2022 contract before this Court by filing in W.P.(C)No.22541 of 2013. That writ petition ended in dismissal. The plaintiff 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 contract was accordingly quashed. Thereafter, 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 Contractor before the competent authority, who shall take the same into account before taking final decision in the matter. The State and the official respondents took up the matter before the Apex Court ## 27 ## W.P.(C)No.19465 of 2022 and the Apex Court in **M.K. Jose [(2015) 9 SCC 433]** , 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. 22. 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 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 ## 28 ## W.P.(C)No.19465 of 2022 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. 23. In **M.K. Jose [(2015) 9 SCC 433]** the Apex Court was dealing with a case in which the High Court has appointed a Commission to collect the evidence, accepted the same without calling for objections from the respondent, and quashed the order of termination of contract. The Apex Court observed that, the procedure adopted by the High Court is quite unknown to exercise of powers under Article 226 in a contractual matter. Accordingly, the plaintiff filed O.S.No.18 of 2018 before the Sub Court, Hosdurg seeking the aforesaid reliefs. ## 24. In **Jose M.K. v. Secretary, Public Works** **Department [2021 (6) KHC 371]** this Court was dealing with a case in which the appellant contended that since the 29 ## W.P.(C)No.19465 of 2022 proceedings initiated by the 3[rd] defendant, vide Ext.A1 notice dated 30.03.2021, to blacklist the appellant is also based on the order of termination of contract dated 25.07.2013, which is under challenge in O.S.No.18 of 2018, the said proceedings is liable to be kept in abeyance during the pendency of O.S.No.18 of 2018, otherwise, the appellant will be put to irreparable injury and hardship. Per contra, the learned Special Government pleader for respondents contended that the proceedings to blacklist the appellant was initiated at the recommendation of the Vigilance and Anti Corruption Bureau. It is a separate proceedings by the Vigilance and Anti Corruption Bureau. The intention of the appellant is only to avoid appearance before the Vigilance and Anti Corruption Bureau. The appellant can always explain all facts before PWD authorities, as directed in the notice dated 30.03.2021. 25. In **Jose M.K. [2021 (6) KHC 371]** this Court noticed the law laid down by the Apex Court in **Kulja Industries** ## **Limited v. Chief General Manager, W.T. Project, BSNL** **[(2014) 14 SCC 731]** , wherein it was held that the power to blacklist a contractor whether the contract be for supply of 30 ## W.P.(C)No.19465 of 2022 material or equipment or for the execution of any other work whatsoever is inherent in the party allotting the contract. There is no need for any such power being specifically conferred by Statute or reserved by contractor. That is because ‘blacklisting’ simply signifies a business decision by which the party affected by the breach decides not to enter into any contractual relationship with the party committing the breach. Between two private parties the right to take any such decision is absolute and untrammelled by any constraints whatsoever. The freedom to contract or not to contract is unqualified in the case of private parties. But any such decision is subject to judicial review when the same is taken by the State or any of its instrumentalities. This implies that any such decision will be open to scrutiny not only on the touchstone of the principles of natural justice but also on the doctrine of proportionality. A fair hearing to the party being blacklisted thus becomes an essential pre-condition for a proper exercise of the power and a valid order of blacklisting made pursuant thereto. The order itself being reasonable, fair and proportionate to the gravity of the offence is examinable by a writ court. The legal position on the subject is settled by a long 31 ## W.P.(C)No.19465 of 2022 line of decisions rendered by the Apex Court starting with **Erusian Equipment and Chemicals Ltd. v. State of West** **Bengal [(1975) 1 SCC 70]** where the Apex Court declared that blacklisting has the effect of preventing a person from entering into lawful relationship with the Government for purposes of gains and that the authority passing any such order was required to give a fair hearing before passing an order blacklisting a certain entity. 26. During the course of arguments, the learned counsel for the petitioner would point out Ext.P4 notice dated 07.07.2022 issued by the 3[rd] respondent and also Ext.P5 receipt dated 11.07.2022, evidencing the payment of Rs.22,12,500/-, which was paid on 11.07.2022. The learned counsel for petitioner would submit that the said amount includes Rs.20,00,000/towards balance bid amount and a further sum of Rs.2,12,500/- towards delayed payment of the balance bid amount, which the petitioner was bound to remit, in terms of the tender conditions, by 24.01.2022. 27. In the judgment dated 08.06.2022, while dismissing W.P.(C)No.18537 of 2022, this Court noticed that in view of the 32 ## W.P.(C)No.19465 of 2022 law laid down in **Suneesh K.S. [ILR 2022 (1) Ker. 1091]** the 4[th] respondent Executive Officer ought to have reported the default committed by the petitioner to the 3[rd] respondent Devaswom Commissioner to take stern action against him. Further, the competent authority in the Travancore Devaswom Board ought to have initiated proceedings against the petitioner for cancellation of the bid, followed by recovery proceedings and also proceedings for blacklisting. The proceedings initiated against the petitioner for blacklisting was on account of the instances pointed out in the counter affidavit filed by the 3[rd] respondent. It is a serious misconduct on the part of a Kuthaka holder at Sabarimala, especially when such incident occurred during Mandala-Makaravilakku festival season, when large number of devotees had dharshan at Sabarimala through Virtual-Q platform. The said incident was brought to the notice of this Court through the report of the Special Commissioner, Sabarimala. Having considered the pleadings and materials on record and also the submissions made by the learned counsel on both sides, we deem it appropriate to direct the 2[nd] respondent 33 ## W.P.(C)No.19465 of 2022 Travancore Devaswom Board to take an appropriate decision in the proceedings initiated against the petitioner for blacklisting, as evidenced by Ext.P3 communication dated 05.06.2022, after considering the explanation offered by him before the 3[rd] respondent Devaswom Commissioner, taking note of the law laid down in the decisions referred to _supra_ and the directions contained in the judgment dated 08.06.2022 in W.P.(C)No.18537 of 2022. While taking such decision, the 2[nd] respondent Board shall keep in mind the law laid down by the Apex Court in **M.V.** **Ramasubbiar [(1979) 2 SCC 65]** . A decision in this regard shall be taken, as expeditiously as possible, at any rate, within a period of three weeks from the date of receipt of a certified copy of this judgment, after affording the petitioner an opportunity of being heard. The decision taken by the Board, which shall be supported by reasons, shall be brought to the notice of this Court along with the report of the Special Commissioner, Sabarimala, within a further period of one week. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** ## **P.G. AJITHKUMAR, JUDGE** PV 34 W.P.(C)No.19465 of 2022 ## **`APPENDIX OF WP(C) 19465/2022`** |**`PETITIONER`**|**`EXHIBITS`**| |---|---| |**`Exhibit P1`**|<br>**`THE TRUE COPY OF THE ACKNOWLEDGMENT`**| ||**`RECEIPT OF PETITION NO.3954/2022 ISSUED`**| ||**`BY THE PAMBA POLICE STATION DATED`**| ||**`06.01.2022.`**| |**`Exhibit P2`**|<br>**`THE TRUE COPY OF THE COMPLAINT DATED`**| ||**`13.01.2022 SUBMITTED BY THE PETITIONER`**| ||**`BEFORE THE SUPERINTENDENT OF POLICE`**| ||**`PATHANAMTHITTA.`**| |**`Exhibit P3`**|<br>**`THE TRUE COPY OF THE NOTICE NO. E.O.P`**| ||**`NO. 196/22/SABA DATED 05.06.2022 ISSUED`**| ||**`BY THE 5TH RESPONDENT TO THE PETITIONER.`**| |**`Exhibit P4`**|<br>**`TRUE COPY OF THE NOTICE NO ROC NO`**| ||**`1221/2022/SAB DATED 7.7.2022 ISSUED BY`**| ||**`THE 3RD RESPONDENT`**| |**`Exhibit P5`**|<br>**`TRUE COPY OF THE RECEIPT NO ST 803 DATED`**| ||**`11.7.2022 FROM THE DHANALAKSHMI BRANCH,`**| ||**`PATHANAMTHITTA`**|