High Court of KeralaDivision Bench2019-07-17Writ petition dismissed

Thulaseedharan et al. v. State of Kerala and Travancore Devasom Board and others (W.P.(C).13766/2019)

Case / Petition Number:W.P.(C).13766/2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. T. Ravikumar
N. Nagareesh
Judgment Date: 2019-07-17
Court Decision / Holding: W.P.(C).13766/2019 is dismissed; the petitioners are not entitled to the reliefs sought.
Final Disposition: Writ petition dismissed

Parties to the Case

Appellants / Petitioners

Thulaseedharan
Udayaraj K.R.
Bijin T.R.
Arun Raj T.
Shiju T.J.

Respondents

State of Kerala represented by its Chief Secretary, Kerala Government Secretariat, Thiruvananthapuram-695 001
Secretary Department of Forest, Kerala Government, Secretariat, Thiruvananthapuram-695001
Travancore Devasom Board represented by its Commissioner, Nanthancode, Thiruvananthapuram-695 011
The Commissioner Travancore Devasom Board, Nanthancode, Thiruvananthapuram-695011
Executive Officer Sabaramwala, Travancore Devasom Board, Nanthancode, Thiruvananthapuram-695 011

Legal Representation & Advocates

Counsels for Petitioners

• V. Philip Mathew
• Gibi C George

Counsels for Respondents

• S. Rajmohan, SC, TDB GP
• T.K. Anandakrishnan

Case Synopsis & Summary

Five petitioners were successful bidders in the Travancore Devaswom Board's auction of stalls at Sabarimala for the Mandalam-Makaravilakku period 1194 ME to 1195 ME (11.11.2018 to 31.10.2019). They paid 50% of the bid amount; the balance was due by 30.10.2018. The Board allegedly closed their stalls alleging non-payment. The writ petition seeks to challenge the closure as illegal, to mandamus to permit business in the stalls and to direct consideration of Exhibit P3 representation and to prevent recovery of the due amounts. After a hearing, the court noted a June 13, 2019 order directing the bidders to pay 25% of the balance in two instalments (10% by 15.06.2019 and 15% by 30.06.2019) and to permit continuation of business until 30.06.2019 if complied. On July 1, 2019, petitioners argued they could not pay; respondents stated that the order was conveyed and some bidders paid and continued during Midhunam; affidavits were exchanged. The court observed that developments after contract could not justify non-performance of contractual obligations and relied on a Supreme Court decision in Travancore Devaswom Board v. Thanath International (2004) 13 SCC 44. It held there was no merit in the petition as the petitioners had not complied with the terms, and dismissed the writ petition.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that the closure of their stalls in Sabarimala is illegal and unjust. They seek a writ of mandamus to permit them to continue business in the stalls and to direct the respondents to consider Exhibit P3 representation within a timeframe after hearing the petitioners. They also seek to restrain recovery of any amounts due for the business as per Exhibit P3 and paragraph 3. They state that they had paid 50% of the bid amount and were only required to pay the balance by 30.10.2018; they argue that the order dated 13.6.2019 allowed 25% payment in two instalments and that payment attempts were made as per the court’s directions, but were not accepted. They emphasize prior application procedures (RTGS/chalan) through the Devaswom Accounts Officer and contend that the Administrative Officer at Nilakkal was not a party to the petition, yet the officials were aware of the matter.

Contentions of Respondents

The respondents maintain that post-contract developments cannot justify non-performance of contractual obligations. They refer to the Court’s order dated 13.6.2019 directing petitioners to pay 25% of the balance in two instalments and to permit continuation if complied. They note that the petitioners did not comply with these terms and that some bidders did remit dues and continued during Midhunam. The respondents submit that the petitioners have no grounds for relief and that the petition should be dismissed; they rely on the principle that contract conditions must be met and that continuance without payment cannot be countenanced.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Travancore Devaswom Board v. Thanath International	(2004) 13 SCC 44	Positive	Cited to support the proposition that developments after contract cannot sustain a claim and that the petitioners must comply with contractual obligations.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Thulaseedharan et al. v. State of Kerala and Travancore Devasom Board and others (W.P.(C).13766/2019) and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 17TH DAY OF JULY 2019 / 26TH ASHADHA, 1941** **WP(C).No.13766 of 2019** ## **PETITIONERS:** **1 THULASEEDHARAN AGED 43,S/O. LATE K. KUTTAN PILLA, THANNIKYAPOYKAYIL, ANGAMOOZHY P.O., CHITTARSEETHATHODU, PATHANAMTHITTA DISTRICT.** **2 UDAYARAJ K.R. AGED 31,S/O RAJU, KARANCHERI, THULAPPALLI P.O., NARANANTHODU, PATHANAMTHITTA DISTRICT.** **3 BIJIN T.R. AGED 31,S/O. RAJAN T.N., THANNIMMOOTTIL P.O, THULAPPALLY P.O., NARANTHODU, PATHANAMTHITTA DISTRICT.** **4 ARUN RAJ T. AGED 30,S/O RAJAN T.K., ARYA BHAVAN, THULAPPALLY P.O., PATHANAMTHITTA DISTRICT.** **5 SHIJU T.J. AGED 38,S/O. JANARDHANEN NAIR, THUNDATHIL VEEDU, THULAPPALLY P.O., NARANAMTHODU, PATHANAMTHITTA DISTRICT.** **BY ADVS.** **SRI.V.PHILIP MATHEW SRI.GIBI.C.GEORGE** **W.P.(C).13766/2019** 2 ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2 THE SECRETARY DEPARTMENT OF FOREST, KERALA GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **3 TRAVANCORE DEVASOM BOARD REPRESENTED BY ITS COMMISSIONER, NANTHANCODE, THIRUVANANTHAPURAM-695 011.** - **4 THE COMMISSIONER TRAVANCORE DEVASOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM-695011.** - **5 EXECUTIVE OFFICER SABARIMALA, TRAVANCORE DEVASOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM-695 011.** **BY ADV. SRI.S.RAJMOHAN, SC, TDB GP- SRI T.K ANANDAKRISHNAN.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C).13766/2019** 3 ## **JUDGMENT** Ravikumar, J. The petitioners are successful bidders in the auction conducted by Travancore Devaswom Board to conduct shops from Mandalam Makaravilakku period of 1194 Malayalam Era till the Mandalam Makaravilakku period of 1195, viz., from 11.11.2018 to 31.10.2019. On becoming successful bidders, they were running the business at the allotted space/rooms. The petitioners had paid only 50% of the tender amount. The remaining 50% of the amount ought to have been paid on or before 30.10.2018. It is alleged that due to the failure of the petitioners to pay the balance 50% of the bid amount, the respondents 3 to 5 have forcefully closed the stalls/shops. This writ petition has been filed raising such contentions and seeking the following reliefs:- - i. Issue appropriate writ or order declaring that closure of petitioners' shops/stalls/business in Sabarimala mentioned in paragraph 3 of the Writ Petition is illegal and unjust. - ii. Issue a writ of mandamus or other appropriate writ or order commanding **W.P.(C).13766/2019** 4 respondents 3 to 5 to permit petitioners to do business in Sabarimala in the stalls and shops mentioned in Exhibit P3 and paragraph 3 of the Writ Petition. - iii. Issue a writ of mandamus or other appropriate writ or order commanding the 3[rd] respondent to consider and take appropriate action on Exhibit P3 representation within a time limit to be specified by this Honourable Court after hearing the petitioners. - iv. Issue a writ of mandamus or other appropriate writ or order commanding respondents not to take any steps to recover any amounts from the petitioners for the business in Sabarimala mentioned in Exhibit P3 and paragraph 3 of the Writ Petition. 2. After hearing the learned counsel for the petitioners as also the learned standing counsel appearing for the TDB, this Court passed an order on 13.6.2019 on the following lines:- “Each of the petitioners shall pay 25% of the balance amount in two instalments viz., 10% of the balance amount payable by them, on or before 15.06.2019 and the balance 15% on or before 30.06.2019. In case the petitioners comply with the said condition, the TDB shall permit the petitioners to continue with the business in their respective stalls/shops till 30.06.2019.” **W.P.(C).13766/2019** 5 3. Thereafter, when this matter was taken up for consideration on 1.7.2019, the learned counsel for the petitioners submitted that the authorities did not permit the petitioners to effect payment and therefore, they could not effect payment and to conduct the shops. Per contra, the learned standing counsel for the TDB submitted that pursuant to order dated 13.6.2019, the factum of issuance of the said order and the contents thereof, were informed to the officials concerned over phone followed by an information in writing through E-mail. It is also submitted that subsequently, some persons who were conducting shops based on successful bids remitted certain amounts and continued to conduct shops during the monthly pooja for the month of Midhunam (from 16.6.2019 to 20.6.2019). Taking note of the version of the petitioners as also the learned standing counsel, they were directed to file an affidavit/statement in tune with their respective version. Consequently, the petitioners have filed an affidavit and the first respondent has filed a statement. On going through the affidavit filed by the petitioners, it is their contention that **W.P.(C).13766/2019** 6 pursuant to the order dated 13.6.2019, they approached the Administrative Officer of the TDB at Nilakkal to effect 10% of the dues in terms of the said order and the Administrative Officer did not accept the demand. In this context, it is to be noted that a perusal of the array of the respondents in the writ petition would reveal that the Administrative Officer of the TDB at Nilakkal is not a party to the writ petition and the officer concerned is the 5[th] respondent viz., Executive Officer, Sabarimala. The petitioners got no case that they had approached the 5[th] respondent and attempted to pay the amount in terms of order dated 13.6.2019 and the said officer had refused to accept the said amount. At the same time, it is to be noted that statement filed by the TDB would reveal that all the successful bidders including the petitioners used to remit the licence fee through the account of the Devaswom Accounts Officer. The petitioners could have remitted the amount directly by filling up chalan or transfering the amount through RTGS and produce the receipts before the Executive Officer, Sabarimala. It is also stated that this procedure is **W.P.(C).13766/2019** 7 well known to the petitioners and in fact, they had also resorted to such procedures earlier. In short, it is submitted that the petitioners are finding one or other reason for not effecting payment. Taking into account the rival submissions, we have carefully considered the merits of the case. It is to be noted that developments subsequent to the finalisation of contract could not be a ground to sustain a claim raised for not complying with the conditions to be performed in terms of the contract. This position was settled by the Hon'ble Apex Court in the decision in **Travancore Devaswom Board v. Thanath International [(2004) 13 SCC 44].** Thus, it is evident that the petitioners are bound to comply with the conditions in the agreement which they had executed on becoming successful bidders with the TDB for the period in question. It is also the admitted position that in tune with the said liability, they have already paid 50% of the amount payable. It is virtually taking note of such positions that this Court passed an order on 13.6.2019. The said order was passed after hearing both sides. As per the said order, this Court permitted the **W.P.(C).13766/2019** 8 petitioners to pay 25% of the balance amount in two instalments viz., 10% of the balance amount payable on or before 15.06.2019 and the balance 15% on or before 30.06.2019. The petitioners got no case that in terms of order dated 13.6.2019, they effected payment of 25% of the amount remaining to be paid on or before 15.6.2019 or on or before 30.06.2019. In fact, they got no case that it was paid even thereafter. In such circumstances, we do not find any merit in this writ petition especially in view of the decision referred (supra). The petitioners are not entitled to any reliefs sought for in this writ petition. Consequently, this writ petition is dismissed. **Sd/-** ## **C.T.RAVIKUMAR** **JUDGE Sd/N.NAGARESH JUDGE** **W.P.(C).13766/2019** 9 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1** **COPY OF NOTIFICATION NO.ROC 53/18 SAB DATED 28.6.18 PUBLISHED BY THE THIRD RESPONDENT SPECIFYING THE MONOPOLY DETAILS (KUTHAKAVIVARAM)** **EXHIBIT P2** **COPY OF THE INTERIM ORDER DATED 13.11.2018 PASSED IN THAT WRIT PETITION.** **EXHIBIT P3** **COPY OF REPRESENTATION DATED 29.11.18 SUBMITTED BEFORE THE THIRD RESPONDENT.** **EXHIBIT P4** **COPIES OF POSTAL RECEIPTS ISSUED WHEN EXT.P3 AND OTHER THE REPRESENTATIONS WERE SENT BY POST.** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R3(A)** **A TRUE COPY OF THE LETTER DATED 12.07.2019 ALONG WITH THE STATEMENTS OF DUES OF THE PETITIONERS.** spc/ # **W.P.(C).13766/2019** 10