TDAC Solutions (P) Ltd v State of Kerala & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR. JUSTICE G. GIRISH ``` ``` MONDAY, THE 5[TH] DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945 ``` ``` WP(C) NO.4225 OF 2024 ``` ## **`PETITIONER:`** ``` TDAC SOLUTIONS (P) LTD ``` ``` 41/1180-A, SREE SHYLAM, ARANGATH CROSS ROAD, PULLEPADY ,KOCHI 682018, REPRESENTED BY ITS DIRECTOR, KOMAL BEN DAVVA AGED 38 YEARS, SREE SHYLAM,ARANGATH CROSS ROAD, PULLEPADY ,ERNAKULAM, PIN - 682018 ``` ## **`BY ADVS.MANSOOR.B.H. SAKEENA BEEGUM`** ## **`RESPONDENTS:`** - **`1 * STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE (DEVASWOM) DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM, PIN695001`** ``` *(STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE(DEWASWOM DEPARTMENT), SECERATARIATE THIRUVANANTHAPURAM, PIN – 695001 – CORRECTED AS PER ORDER DATED 05.02.2024) ``` - **`2 COCHIN DEWASWOM BOARD REPRESENTED BY ITS SECRETARY DEWASWOM HEAD QUARTERS SWARAJ ROUND WEST THRISSUR, PIN – 680001`** - **`3 EXECUTIVE ENGINEER COCHIN DEVASWOM BOARD DEWASWOM HEAD QUARTERS SWARAJ ROUND WEST THRISSUR, PIN – 680001`** - **`4 # THE ERNAKULAM KSHETHRA KSHEMA SAMITHI ERNAKULAM SIVA TEMPLE, DURBAR HALL ROAD, ERNAKULAM REPRESENTED BY ITS SECRETARY, PIN – 682011`** ``` # (THE ERNAKULAM KSHETHRA SEVA SAMITHI ``` ``` ERNAKULAM SIVA TEMPLE,DURBAR HALL ROAD,ERNAKULAM REPRESENTED BY ITS SECRETARY, PIN – 682011 - CORRECTED AS PER ORDER DATED 05.02.2024) ``` - **`@ADDL.R5 THE DEPUTY DIRECTOR, KERALA STATE AUDIT DEPARTMENT, COCHIN DEVASWOM BOARD AUDIT, ROUND`** ``` 2 ``` W.P(C)No.4225 of 2024 ``` NORTH, THRISSUR – 680001. @(ADDL.R5 IS SUO MOTU IMPLEADED AS PER ORDER DATED 05.02.2024) ``` ``` SRI S.RAJMOHAN - SR GOVERNMENT PLEADER ; SRI K.P.SUDHEER - STANDING COUNSEL- COCHIN DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.02.2024, THE COURT ON THE SAME DAY ``` ``` DELIVERED THE FOLLOWING: ``` ``` 3 ``` W.P(C)No.4225 of 2024 ## **JUDGMENT** ## **Anil K. Narendran, J.** Going by the averments in the writ petition, the petitioner had undertaken certain construction works in Ernakulam Siva Temple, which is a temple under the management of the Cochin Devaswom Board, as entrusted by Ernakulam Kshethra Kshema Samithi, which is the Temple Advisory Committee of Ernakulam Siva Temple. The petitioner has filed this writ petition, under Article 226 of the Constitution of India, seeking a writ of mandamus, commanding respondents 2 to 4, namely, the Cochin Devaswom Board represented by its Secretary, the Executive Engineer of the Cochin Devaswom Board and Ernakulam Kshetra Kshema Samithi, to process the bills submitted by the petitioner, as per Exts.P5 and P10 to P16 and to release the bill amounts, within a timeframe to be fixed by this Court. The petitioner has also sought for a writ of mandamus, commanding the 2[nd] respondent Cochin Devaswom Board, to take a decision on Ext.P17 representation dated 15.05.2023, which is one made by the petitioner before the 4[th] respondent Ernakulam Kshetra Kshema Samithi, with copy to the Secretary of the 2[nd] respondent Cochin Devaswom Board, the Devaswom Officer of Ernakulam Siva Temple and also the President of the Kshetra ``` 4 ``` W.P(C)No.4225 of 2024 Kshema Samithi; and a writ of mandamus, commanding the 2[nd] respondent Board and the 3[rd] respondent Executive Engineer, not to award the work covered by Ext.P2 order of this Court dated 23.07.2019 in D.B.P.No.34 of 2019 to any other person, without the permission of this Court. 2. Going by the averments in the writ petition, the petitioner had undertaken certain construction works in Ernakulam Siva Temple, as entrusted by the 4[th] respondent Ernakulam Kshethra Kshema Samithi, during the period 201721, namely, construction of Padippura, Nadappandhal and Aaraattupandhal, covered by Ext.P6 work order dated 20.11.2017. The construction of the Devaswom Office was awarded vide Ext.P1 work order dated 04.06.2018 issued by the 4[th] respondent. The construction of the compound wall of the temple pond was awarded by Ext.P7 work order dated 20.12.2019 of the 4[th] respondent. The construction of Gosala was awarded by Ext.P8 work order dated 22.07.2020 of the 4[th] respondent; and the construction of Southern Gopuram was awarded by Ext.P9 work order dated 02.04.2021 of the 4[th] respondent. Exts. P10 to P16 are the bills submitted by the petitioner before the President of the 4[th] respondent Kshethra Kshema Samithi. Ext.P10 bill dated 05.02.2018 is in respect of ``` 5 ``` W.P(C)No.4225 of 2024 the construction of Aarattupandal; Ext.P11 bill dated 05.06.2020 is in respect of extra work of Aarattupandal; Ext.P12 bill dated 05.02.2018 is in respect of construction of Nadapanthal; Ext.P13 bill dated 05.06.2020 is in respect of extra work of construction of Nadapandhal; Ext.P14 bill dated 21.12.2020 is in respect of construction of Gosala; Ext.P15 bill dated 11.02.2020 is in respect of construction of compound wall of the temple pond; and Ext.P16 bill dated 11.17.2021 is in respect of construction of Southern Gopuram. 3. The document marked as Ext.P2 is an order of this Court dated 23.07.2019 in DBP No.34 of 2019, whereby the 4[th] respondent Kshetra Kshema Samithi was permitted to carry out constructions in Ernakulam Siva Temple, utilizing the income derived from Ernakulathappan Ground, in the ratio 70:30. Paragraph No.4 of Ext.P2 order reads thus; “4. The short question to be considered in this DBP is whether the said work could be permitted to be carried out on the revised estimate ? The revised estimate is evident from Annexure-A5. Going by the same, estimated cost of work is Rs.1,29,37,000/-. The learned counsel appearing for the second respondent Ernakulam Kshethra Kshema Samithi which is the successor of Ernakulam Siva Kshethra Upadeshaka Samithi and conferred with the status of Temple Advisory Committee, submitted that the reconstruction work of Devaswom Office and staff quarters ``` 6 ``` W.P(C)No.4225 of 2024 in tune with the approved plan can be carried out based on the revised estimate. In this context, it is to be noted that the learned Ombudsman in the report suggested that sanction can be granted subject to five conditions. Virtually, there is no dispute with respect to condition Nos. 1 to 3 specified in the report. At the same time, the learned counsel appearing for the second respondent submitted that it is not correct to say that the reconstruction work could be carried out by the Ernakulam Kshethra Kshema Samithi by using the fund allowed to it by the Board. According to the learned counsel, the rent from Ernakulathappan ground is being shared by the second respondent and the Board. In this context, it is to be noted that the present proposal is to meet the necessary expenses for carrying out the work utilising 60% from the ground rent. Thus, it is obvious that there is enhancement with respect to the share of the rent from Ernakulathappan ground, for a period of two years. In fact, the earlier arrangement regarding its sharing was in the ratio 70:30 between the Board and the second respondent. Thus, it is evident that to enable the second respondent to carry out the work the parties have agreed between them, to enhance the share of the second respondent to 60%. We do not find any reason for not accepting the said arrangement. Going by condition No.4 in the report of the Ombudsman, the second respondent has to undertake to complete the work within a period of two years. It is submitted by the learned counsel for the second respondent that in case the work could not be completed within the aforesaid period liberty may be granted to the second respondent to approach the Board for getting ``` 7 ``` W.P(C)No.4225 of 2024 extended the period for completion of the aforesaid work. In the same breath the learned counsel submitted that all efforts would be made by the second respondent to complete the renovation work, within the period of two years and such a prayer is made only as an abundant caution. The liberty sought for, to move the Board, is granted. With respect to suggested condition No.5 of the learned Ombudsman, it is submitted by the learned counsel that the second respondent does not propose to collect fund from the public. In other words, it is submitted that the proposal is only to carry out and complete the renovation works utilising the amount from the aforesaid share. In the light of the aforesaid circumstances, recording the aforesaid submissions and accepting the suggestions to the extent mentioned hereinbefore, permission is granted to the second respondent to carry out the aforesaid work at the revised, estimated cost, in terms of the already approved plan." 4. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1 and also the additional 5[th] respondent and the learned Standing Counsel for Cochin Devaswom Board for respondents 2 and 3. 5. The issue that requires consideration in this writ petition is as to whether the petitioner who had entered into certain contracts with the 4[th] respondent Ernakulam Kshetra Kshema Samithi, for executing certain works in Ernakulam Siva Temple, which is a temple under the management of the Cochin ``` 8 ``` W.P(C)No.4225 of 2024 Devaswom Board, can invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, seeking the aforesaid reliefs. ## 6. 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 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 ``` 9 ``` W.P(C)No.4225 of 2024 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. 7. 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 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** ``` 10 ``` W.P(C)No.4225 of 2024 **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 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. 8. 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 ``` 11 ``` W.P(C)No.4225 of 2024 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 that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons. 9. 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 ``` 12 ``` W.P(C)No.4225 of 2024 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. ## 10. In **ABL International Ltd. [(2004) 3 SCC 553]** 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, which reads thus; - "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 ``` 13 ``` W.P(C)No.4225 of 2024 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 mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction." 11. 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. ``` 14 ``` W.P(C)No.4225 of 2024 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 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 ``` 15 ``` W.P(C)No.4225 of 2024 to the exercise of powers under Article 226 in a contractual matter. 12. 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 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 ``` 16 ``` W.P(C)No.4225 of 2024 exercise the power of judicial review. 13. 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 element, a writ of mandamus would not lie. 14. 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 ``` 17 ``` W.P(C)No.4225 of 2024 Authority in the said contractual field. 15. 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, 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. 16. 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 ``` 18 ``` W.P(C)No.4225 of 2024 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 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 ``` 19 ``` W.P(C)No.4225 of 2024 ## performance of a contract or for damages could be filed. 17. 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 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. 18. 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 ``` 20 ``` W.P(C)No.4225 of 2024 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 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. ``` 21 ``` W.P(C)No.4225 of 2024 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 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 crossexamination 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 ``` 22 ``` W.P(C)No.4225 of 2024 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 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 ``` 23 ``` W.P(C)No.4225 of 2024 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 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 ``` 24 ``` W.P(C)No.4225 of 2024 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 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." 19. In **SITCO Associates v. State of Kerala [2023 KHC 496]** , in the context of a contract awarded by the High Power Committee for Implementation of Sabarimala Master Plan, a Division Bench of this Court, in which one among us [Anil K. Narendran, J.], was a party, held that the contract entered into between the High Power Committee and the writ petitioner is of a non statutory character and the relationship is governed purely in terms of the contract between the parties, i.e., the agreement dated 31.03.2018. 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. Seriously disputed questions or ``` 25 ``` W.P(C)No.4225 of 2024 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. In such cases, the proper remedy of the person aggrieved would be to approach the competent civil court seeking appropriate reliefs. 20. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible, that the petitioner, who had entered into certain contracts with the 4[th] respondent Ernakulam Kshetra Kshema Samithi, for undertaking certain constructions in Ernakulam Siva Temple, cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking the reliefs sought for in this writ petition. In such circumstances, this writ petition filed on 23.01.2024 is dismissed on the ground of maintainability, without expressing anything on the factual contentions raised by the petitioner. (sd/-) **G. GIRISH, JUDGE** vgd ``` 26 ``` W.P(C)No.4225 of 2024 ## **`APPENDIX OF WP(C) 4225/2024`** ``` PETITIONER’S EXHIBITS ``` ``` EXHIBIT P1TRUE COPY OF THE WORK ORDER DATED 4/6/2018 ISSUED BY THE FOURTH RESPONDENT EXHIBIT P2TRUE COPY OF THE ORDER DATED 23/7/2019 IN DBP NO:34/2019 OF THIS HON'BLE COURT EXHIBIT P3TRUE COPY OF THE WORK ORDER DATED 21/3/2019 ISSUED BY THE FOURTH RESPONDENT EXHIBIT P4TRUE COPY OF THE REQUEST DATED 9/11/2020 SUBMITTED BY THE FOURTH RESPONDENT EXHIBIT P5TRUE COPY OF THE REQUEST DATED 20/2/2023 SUBMITTED BY THE PETITIONER EXHIBIT P6TRUE COPY OF THE WORK ORDER DATED 20/11/2017 EXHIBIT P7TRUE COPY OF THE WORK ORDER ISSUED BY THE FOURTH RESPONDENT DATED 20/12/2019 EXHIBIT P8TRUE COPY OF THE WORK ORDER DATED 22/7/2020 ISSUED BY THE FOURTH RESPONDENT EXHIBIT P9TRUE COPY OF THE WORK ORDER DATED 2/4/2021 ISSUED BY THE FOURTH RESPONDENT EXHIBIT P10TRUE COPY OF THE BILL SUBMITTED BY THE PETITIONER DATED 5/2/2018 FOR THE CONSTRUCTION OF AARATTUPANDAL EXHIBIT P11TRUE COPY OF THE BILL DATED 5/6/2020 FOR THE EXTRA WORK OF AARATTUPANDAL EXHIBIT P12TRUE COPY OF THE BILL DATED 5/2/2018 FOR THE CONSTRUCTION OF NADAPANTHAL EXHIBIT P13TRUE COPY OF THE BILL DATED 5.6.2020 FOR EXTRA WORK OF CONSTRUCTION OF NADAPANTHAL EXHIBIT P14TRUE COPY OF THE BILL DATED 21/12/2020 FOR THE CONSTRUCTION OF GOWSHALA EXHIBIT P15TRUE COPY OF THE BILL DATED 11/2/2020 FOR THE CONSTRUCTION OF TEMPLE POND WALL EXHIBIT P16TRUE COPY OF THE BILL DATED 11/12/2021 FOR THE CONSTRUCTION OF SOUTHERN GOPURAM ``` ``` 27 ``` W.P(C)No.4225 of 2024 ``` EXHIBIT P17TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 15.5.2023 ```