Swamy Ayyappa Enterprises v. Travancore Devaswom Board & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN & THE HONOURABLE MRS.JUSTICE SOPHY THOMAS ``` ``` MONDAY, THE 9[TH] DAY OF OCTOBER 2023 / 17TH ASWINA, 1945 ``` **==> picture [167 x 12] intentionally omitted <==** ## **`PETITIONER:`** ``` SWAMY AYYAPPA ENTERPRISES, CC33/2366C, 2ND FLOOR, MUDAVATHIL BUILDING, GEETHANJALI JUNCTION, N.H. BYEPASS, THAMMANAM P.O., COCHIN, PIN-682 032, REPRESENTED BY ITS MANAGING PARTNER, SURESH M.S., AGED 49 YEARS, S/O.SIVARAMAN M.A., MECHERIL HOUSE, ARAKKULAM P.O., THODUPUZHA, IDUKKI DISTRICT. ``` ``` BY ADVS. BABU S. NAIR SMITHA BABU P.A.RAJESH SHAMSEERA. C.ASHRAF PRANAV K.P.DHANEESH SIDDHARTH KARUN PISHARODY ``` ## **`RESPONDENTS:`** ``` 1THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, DEVASWOM BOARD HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM,PIN – 695003. 2THE PRESIDENT, TRAVANCORE DEVASWOM BOARD, DEVASWOM BOARD HEAD QUARTERS, NANTHANCAUDE, THIRVUNANTHAPURAM, PIN – 695003. 3THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, DEVASWOM BOARD HEAD ``` 2 W.P.(C) No.32729 of 2023 ``` QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM, PIN – 695003. ``` ``` 4THE EXECUTIVE OFFICER, TRAVANCORE DEVASWOM BOARD, SABARIMALA, PATHANAMTHITTA DISTRICT, PIN – 689662. ``` ``` SRI G. BIJU - STANDING COUNSEL- TRAVANCORE DEVASWOM BOARD ``` ``` SRI.S.RAJMOHAN, SENIOR GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 ## W.P.(C) No.32729 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner, who submitted an e-tender pursuant to e-tender notification dated 24.08.2023 issued by the Executive Officer, Sabarimala, for Kuthaka item No.2 in Sabarimala Devaswom - right to sell coconuts in Sannidhanam, during the Mandala-Makaravilakku Festival season of 1199 ME (2023-24), for the period from 11.11.2023 till 31.10.2024, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the respondents to confirm the highest bid of the petitioner for Kuthaka item No.2 in Sabarimala Devaswom - right to sell coconuts in Sannidhanam, in the list of Kuthaka items which forms part of that e-tender notification. The petitioner has also sought for a writ of mandamus commanding the respondents not to confirm the re-e-tender issued in respect of Kuthaka item No.2 in Sabarimala Devaswom - right to sell coconuts in Sannidhanam for the Mandala-Makaravilakku Festival season of 1199 ME (2023-24); and a declaration that the cancellation and re-e-tendering of Kuthaka item No.2 in Sabarimala Devaswom - right to sell coconuts in 4 W.P.(C) No.32729 of 2023 Sannidhanam, without hearing the petitioner, who being the highest bidder in the tender process, is absolutely illegal and arbitrary. 2. In the writ petition, the petitioner has stated that in respect of a Kuthaka item in Sabarimala Devaswom during the Mandala-Makaravilakku Festival season of 1196 ME (2020-21), the Travancore Devaswom Board filed O.S.No.36 of 2022 before the Sub Court, Pathanamthitta, for recovering an amount of Rs.13,00,000/together with interest, which is pending consideration. The said suit is one filed by the Board, without noticing the fact that the petitioner had already cleared dues in respect of that Kuthaka right. 3. On 05.10.2023, when this writ petition came up for admission, the learned Standing Counsel for the Travancore Devaswom Board sought time to get instructions. 4. Heard the learned counsel for the petitioner and also the learned Standing Counsel for the Travancore Devaswom Board for respondents 1 to 4. 5. In **Sunil Kumar P.G. v. State of Kerala [2022:KER: 71822]** a Division Bench of this Court, in which one among us [Anil K. Narendran, J] was a party, was dealing with the auction conducted 5 W.P.(C) No.32729 of 2023 for the Kuthaka item No.119 (maintenance of Pamba toilet block) in Sabarimala Devaswom for the year 1197 ME (2021-2022). By the judgment dated 13.10.2022, W.P.(C)Nos.29772 of 2021 and 29859 of 2021 were disposed of by directing the Chief Vigilance Officer, Travancore Devaswom Board to conduct a detailed enquiry, with notice to the writ petitioners and also the party respondents, on the e-tender process for Kuthaka items in Sabarimala Devaswom, for the year 1197 ME, with specific reference to item No.119 (maintenance of Pamba toilet block), after the Mandala-Makaravilakku Season of 1198 ME is over. The report of the Chief Vigilance Officer was directed to be placed before the Travancore Devaswom Board, by the first week of March, 2023. The decision taken by the Board, based on the enquiry report of the Chief Vigilance Officer, was directed to be placed before this Court, along with the report of the Special Commissioner, Sabarimala. 6. In **Sunil Kumar P.G. [2022:KER:71822]** this Court ordered that the entire e-tender for Kuthaka items in Sabarimala Devaswom, from Mandala-Makaravilakku festival season of 1199 ME (2023-24) onwards shall be conducted, after publishing an auction 6 W.P.(C) No.32729 of 2023 notification specifying the highest bid for the previous three years, excluding the period during which there were restrictions on account - of Covid 19 pandemic. After completion of the tender process, the details of the successful bidders along with the bid amount, the balance bid amount payable, its due date, etc., shall be exhibited on the official website of the Board. The list of those who have defaulted payment of the balance bid amount shall also be exhibited on the official website. The list of defaulters shall be forwarded to the Devaswom Commissioner for necessary action. A copy of that list shall also be forwarded to the Special Commissioner, Sabarimala. 7. In **Sunil Kumar P.G. [2022:KER:71822]** this Court directed the Travancore Devaswom Board to adopt a similar procedure in respect of all major temples under its management, in which the annual income is above Rs.2 Crore. In respect of such temples, the list of defaulters shall be forwarded to the Devaswom Commissioner for necessary action. The Kuthaka holders, who have defaulted payment of the balance bid amount, shall be proceeded against, in accordance with the tender conditions. In appropriate cases, proceedings shall also be initiated for blacklisting. In the said 7 W.P.(C) No.32729 of 2023 decision, this Court ordered that the successful bidders and their staff, if any, in respect of Kuthaka items in Sabarimala Devaswom and other Devaswoms under the management of the Travancore Devaswom Board shall be issued with photo identity cards. They shall be required to produce police clearance certificate. In respect of Kuthaka items above Rs.5,00,000/-, the Travancore Devaswom Board shall insist on the Income Tax particulars of the bidders. 8. In the matter of **Audit Report of the Travancore Devaswom Board for the year 1967-1968 (Sabarimala Improvement Fund)** reported in **[(1990) 1 KLT 347]** , in the context of Section 32 of the Travancore-Cochin Hindu Religious and Charitable Institutions Act, a Division Bench of this Court reminded the President and Members of the Travancore Devaswom Board about their public accountability. In the said decision, it was made clear that it is for all persons concerned to see that greater vigil is exercised by the President and Members of the Board in the overall administration of the Board and in the collection and disbursement of funds. 9. In **Suo Motu v. State of Kerala and others [2023 (3)** 8 W.P.(C) No.32729 of 2023 **KHC SN 12 : 2023:KER: 21878]** relating to collection of parking fees in the parking grounds at Nilakkal Base Camp for the year 1198 ME (2022-23), a Division Bench of this Court, in which one among us [Anil K. Narendran, J] was a party, noticed that despite the directions contained in the decisions of this Court in **Abu K.S. v. Travancore Devaswom Board [2022:KER: 6409]** , **Suneesh K.S. v. Travancore Devaswom Board [ILR (2022) 1 Ker 1091]** and **Sunil Kumar P.G. [2022:KER:71822]** the Travancore Devaswom Board and its officials have not shown reasonable diligence in the manner of an ordinary prudent man of business who conduct his own affairs, in matters relating to the auctioning of Kuthaka rights at Sabarimala Devaswom for the year 1198 ME (2022-23). 10. Clause (3) of the general conditions in the general and special conditions which form part of the e-tender notification dated 24.08.2023 issued by the 4[th] respondent Executive Officer, for Kuthaka items in Sabarimala Devaswom, during the MandalaMakaravilakku Festival season of 1199 ME (2023-24), for the period from 11.11.2023 till 31.10.2024, provides for the disqualification of 9 W.P.(C) No.32729 of 2023 defaulters and persons who are blacklisted by the Travancore Devaswom Board. Clause (3) of the general conditions read thus; “(3). ടെൻഡറിൽ പടെെു്കു്ᩐവർ 1500/- രൂപ രജി്ᩗ്രെഷൻ ഫീ . . ഓൺലൈൻ ആയി അെ്്ക്ᩂതാണ് െി തുക തിരിടക ൈഭി്കു്ᩐതൈല അരപകാരം ഹാജരാ്കാ്ᩈവടരയും, നിരത രരവയം , സാധാരണ ഹാജരാ്കാ്ᩈവടരയും വയവ്ഽകൾ അനുസരി്ച് ടെൻഡറിൽ പടെെു്ᩔി്കുവാൻ ്യാഗ്യത ഇൈലാ്ᩈവടരയും . ടെൻഡറിൽ ്േരാൻ അനുവരി്കു്ᩐതൈല ്േൽ്ᩔറ്ഞ ്യാഗ്യതകൾ ഉ്ᩂായിരു്ᩐാൈും ടെൻഡറിൽ ഏടതെിൈും വയ്വിടയ ്േർ്കുക്യാ ്േർ്കാതിരി്കുക്യാ ടേ്ᩞു്ᩐതിന് ടെൻഡർ സവീകരി്കു്ᩐ . ഉ്രയാഗ ന് പരിപൂർ്ᩆ അധികാരം ഉ്ᩂായിരി്കു്ᩐതാണ് ഈ . വയവ്ഽകൾ നെ്ᩔ് ്കാൺരൊക്െർോർ്കും ബാധകോയിരി്കും േുൻകുെി്ിക്ാടരയും, ്ാ്ക് ൈി്ഹ് ടേയതവടരയും യാടതാരു കാരണവശാൈും ടെൻഡറിൽ പടെെു്ി്ു്തൈ. ഓ്ᩔൺ ്ൈൈം നെ്കു്ᩐ ്വളയിൽ ്ൈൈഹാളിൽ രപ്വശി്ച് ്ൈൈ്ᩈിൽ പടെെു്കു്ᩐതിന് കു്ᩈക ടഷഡയൂളുകളിൽ ഓ്രാ ഇന്ങളുടെ ്നടര ്രഖട്ᩔെു്ᩈിയി്ടു്ᩦ നിരതരരവയ തുകകൾ (അെി്ഽാന്ൈൈ തുകയുടെ പ്ᩈു ശതോനം) ടക്ടിവയ ്ക്ᩂതും, ്ൈൈഹാളിൽ ്ൈൈം ്ൈൈ നെപെികൾ ടകാ്ᩦാ്ᩈവരുടെ തുക അ്്ᩐ രിവസട്ᩈ . പൂർ്ᩆോയി കഴിയു്ᩐ േുറയ ് തിരിടക നൽകു്ᩐതും ആയിരി്കും നൽകു്ᩐതും ആയിരി്കും ്ൈൈ്ᩈിൽ പടെെു്കു്ᩐവർ്ക് ടോലബൽ ്ഫാൺ ഉപ്യാഗ്ി്കാൻ പാെിൈലാ്ᩈതാണ്.” 11. In **S. Vijayakumar v. State of Kerala and others** **[2023:KER:60248]** a Division Bench of this Court in which both of us were parties noticed that Kuthaka holders, who defaulted payment of the balance bid amount, are bound to pay the defaulted payment together with penal interest at the rate of 18% per annum from the respective due dates, as per the conditions of the tender/e- tender notifications issued by the Travancore Devaswom Board. A 10 W.P.(C) No.32729 of 2023 person who is a defaulter in payment of the balance bid amount in - respect of Kuthaka items as on the date of a tender/e tender notification or re-tender/re-e-tender notification is disqualified from submitting tender/e-tender pursuant to such a notification, on account of the disqualification provided in Clause (3) of the general conditions. 12. The learned Standing Counsel for the Travancore Devaswom Board, on instructions, would submit that the petitioner is a defaulter in respect of a Kuthaka item in Sabarimala Devaswom during Mandala-Makaravilakku Festival season of 1196 ME (202021). O.S.No.36 of 2022 filed by the Board is pending consideration before the Sub Court, Pathanamthitta. The petitioner has to pay the defaulted amount of Rs.20,01,238/- together with 18% penal interest, in terms of the tender conditions. In view of Clause (3) of the general conditions in the general and special conditions which form part of the e-tender notification dated 24.08.2023 issued by the 4[th] respondent Executive Officer, for Kuthaka items in Sabarimala Devaswom, during the Mandala-Makaravilakku Festival season of 1199 ME (2023-24), for the period from 11.11.2023 till 31.10.2024, 11 W.P.(C) No.32729 of 2023 the petitioner is disqualified from participating in the tender process. 13. After arguing for some time, the learned counsel for the petitioner seeks permission to withdraw this writ petition, without prejudice to the right of the petitioner to raise appropriate contentions in O.S.No.36 of 2022 pending before the Sub Court, Pathanamthitta. Recording the aforesaid submission made by the learned counsel for the petitioner, this writ petition is dismissed as withdrawn, without prejudice to the aforesaid right of the petitioner. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **SOPHY THOMAS, JUDGE** DSV 12 W.P.(C) No.32729 of 2023 ## **`APPENDIX OF WP(C) 32729/2023`** ``` PETITIONER’S EXHIBITS : ``` ``` Exhibit P1TRUE COPY OF THE PROCEEDINGS OF E- TENDERING SYSTEM DATED, 3-10-2023 WHICH WAS IN THE NAME OF THE PETITIONER. ``` ``` Exhibit P2A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED, 17-7-2021. ``` ``` Exhibit P3A TRUE COPY OF THE CHALAN RECEIPT SHOWING THE PAYMENT OF RS.2 LAKHS BY THE PETITIONER DATED, 16-8-2021. Exhibit P4A TRUE COPY OF THE CHALAN RECEIPT SHOWING THE PAYMENT OF RS.14,50,000/- DATED, 12- 11-2020. ``` ``` Exhibit P5A TRUE COPY OF THE PLAINT IN O.S.NO.36/2022 OF THE SUB COURT, PATHANAMTHITTA DATED, 8-6-2022. Exhibit P6A TRUE COPY OF THE REPRESENTATION MADE BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED, 25-9-2023. Exhibit P7A TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT TO THE DEVASWOM COMMISSIONER DATED, 25-9-2023. Exhibit P8A TRUE COPY OF THE LIST OF VARIOUS AMOUNTS WHICH THE PETITIONER IS ENTITLED AS RETURN OF EMD IN THE E-TENDERING SYSTEM FROM THE YEAR 2016. ``` ## **`RESPONDENTS’ EXHIBITS : NIL`**