Venus Publishing v. The Commercial Manager, Airport Authority of India, Thiruvananthapuram International Airport, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **FRIDAY, THE 15TH DAY OF FEBRUARY 2013/26TH MAGHA 1934** ## **WP(C).No. 5188 of 2011 (W)** **--------------------------** **PETITIONER(S):** **--------------------------** **VENUS PUBLISHING,TRVELLERS SHOP, DEPARTURE CHECK IN AREA, DOMESTIC TERMINAL, INTERNATIONAL AIRPORT, THIRUVANANTHAPURAM, REPRESENTED BY ITS PARTNER ANFIL HABEEB, T.C.25/2161.THYVILA ROAD, AYURVEDA COLLEGE, THIRUVANANTHAPURAM.** **BY ADVS.SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.P.M.SANEER SRI.V.S.THOSHIN** **RESPONDENT(S):** **----------------------------** **THE COMMERCIAL MANAGER, AIRPORT AUTHORITY OF INDIA, THIRUVANANTHAPURAM INTERNATIONAL AIRPORT, THIRUVANANTHAPURAM-695 008.** **BY ADV. SRI.V.SANTHARAM, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.5188/2011 W** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE TENDER.** - **P2: COPY OF THE LETTER DTD. 22/05/2009 ISSUED BY THE RESPONDENT.** - **P3: COPY OF THE CREDENTIAL CERTIFICATE.** - **P4: COPY OF THE LETTER NO.AAT/COM/2(7)/VOL-III/2009/407 DTD.19/07/09.** - **P5: COPY OF THE AGREEMENT DTD. 30/12/09 DOCUMENT NO.11/09.** - **P6: COPY OF THE FIXED DEPOSIT RECEIPT NO.267714687 DTD. 10/07/09.** - **P7: COPY OF THE LETTER DTD. 1/07/10 NO.AAt/COM/2(7)/400.** - **P8: COPY OF THE REPLY DTD. 19/07/10.** - **P9: COPY OF THE LETTER NO.AAT/COM/2(7)/DTD. 6/10/10.** - **P10: COPY OF THE REPLY DTD. 13/10/10.** - **P11: COPY OF THE LETTER DTD. 3/11/10 NO.AAT./COM/2(7)/674.** - **P12: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC.NO. 33910/2010 DTD. 10/12/2010.** - **P13: COPY OF THE LETTER DTD. 06/01/2011 ISSUED BY THE ASSISTANT GENERAL MANAGER (COMMERCIAL).** - **P14: COPY OF THE REPRESENTATION DTD. 19/01/2011 ALONG WITH THE DOCUMENTS.** - **P15: COPY OF THE ORDER DTD. 09/02/2011 ISSUED BY THE ASSISTANT GENERAL MANAGER (COMMERCIAL).** ## **RESPONDENT'S EXHIBITS:** - **R(A): COPY OF THE RETURNED POSTAL COVER HAVING ENDORSEMENT.** - **R(B): COPY OF THE COMMUNICATION DTD. 20/01/2010 ISSUED BY TRIVANDRUM CORPORATION.** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **P.R.RAMACHANDRA MENON, J.** - - - - - - - - - - - - - - - - - - - - - ## **W.P.(c) No. 5188 OF 2011** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15[th] day of February, 2013 ## **JUDGMENT** Ext.P15 proceedings issued by the respondent asking the petitioner to vacate the premises, where he is selling books is under challenge in this writ petition. The facts and proceedings narrated in the writ petition shows that, the respondent floated Ext.P1 tender with intent to let out the premises in the domestic terminal at the Thiruvananthapuram International Airport, subject to the conditions stipulated therein. According to the petitioner, he satisfied all the requirements, as borne by Ext.P1 and accordingly he participated in the tender. Having quoted the highest amount, Ext.P2 communication was given by the respondent asking the petitioner to produce the relevant documents in support of the claim. According to the petitioner, he had produced all the relevant documents particularly, Ext.P3 certificate showing three years of experience in the field, in so far as Ext.P1 tender specifically stipulates that individuals should have an experience W.P.(C)No.5188/2011 2 of 2 years in similar business. In pursuance to acceptance of the tender, an agreement was executed, as borne by Ext.P5 and the period of lease was stipulated as '5 years' from 01-08-2009 to 31-07-2014. Based on the said agreement, the petitioner was let to occupy the premises and conduct the business accordingly. The petitioner had also given Fixed Deposit Receipt to the tune of Rs. 2.45 lakhs, as borne by Ext.P6. 2. On a fine morning, the petitioner was served with Ext.P7 memo dated 1.7.2010, pointing out that, the documents produced by the petitioner showing his experience was presumed to be a false document. Immediately, on receipt of Ext.P7, the petitioner submitted Ext.P8 reply pointing out the facts and figures. According to the petitioner, the insinuation made in Ext.P7 was with reference to the address of the petitioner and the information collected by the respondent from the Corporation of Thiruvananthapuram, who certified that no such institution/entity as in the name of the petitioner, was functioning in the area of Thiruvananthapuram Corporation with the address/door number as given by the petitioner. The petitioner W.P.(C)No.5188/2011 3 pointed out vide Ext.P8 that 'Corporation Registration' is required only where 'Sales Tax Registration' is necessary and that the information gathered by the respondent was not enough to non-suit the petitioner and to hold that the experience certificate produced by the petitioner was false. Subsequent to the submission of Ext.P8 reply, the petitioner was served with Ext.P9 notice, whereby the petitioner was asked to submit further details, also referring to the absence of Sales Tax registration and registration under the Kerala Shops and Commercial Establishments Act. According to the petitioner, such a new version was put forth, pursuant to some opinion obtained from the Law Department. The petitioner immediately submitted Ext.P10 reply seeking to substantiate the facts and figures. Thereafter, the petitioner was served with Ext.P11 order asking the petitioner to vacate to premises. It was the subject matter of challenge in W.P.(C) No.33910/2010. After hearing both the sides, the impugned order was set aside by this Court, as per Ext.P12 judgment and the matter was directed to be reconsidered, after giving an opportunity of hearing to the petitioner. 4 W.P.(C)No.5188/2011 3. Pursuant to Ext.P12 verdict, Ext.P13 notice was issued to the petitioner asking him to produce relevant materials showing the correct address in which the petitioner was pursuing business before participating in the tender. On receipt of Ext.P13, the petitioner produced Ext.P14 along with some documents ( as many as 32 documents, according to the petitioner), which are mainly 'Bills' and such other materials showing the particulars of purchases effected by the petitioner. The said documents, according to the petitioner, were enough to substantiate the address of the petitioner and also the experience and as such no further proceeding could have been pursued against the petitioner. However, without any regard to the credentials sought to be established by the petitioner with reference to the documents produced along with Ext.P14, the respondent passed Ext.P15 order on 09/02/2011, whereby a finding was arrived at against the petitioner, asking to vacate the premises, which in turn is under challenge in this writ petition. 4. The respondent has filed a detailed counter affidavit pointing out the facts and figurers and asserting that the petitioner does W.P.(C)No.5188/2011 5 not have the requisite materials to show the experience and also the correct address as to the existence of the petitioner prior to the participation in the tender. 5. The learned counsel for the petitioner submits that there is absolutely no merit or bonafides in proceeding against the petitioner, which is only a malafide exercise at the instance of some others behind the curtain, whose name is discernible from Ext.R(b) produced by the respondent along with I.A.No.1198/2013, which is an information procured by a business rival, resorting to the proceedings under the RTI Act. The learned counsel for the petitioner submits that, the petitioner was never given an opportunity of hearing before passing Ext.P15 and further, absolutely no reference has been made to any of the documents produced along with Ext.P14 and hence it is liable to be intercepted by this Court. 6. The learned Standing Counsel for the respondent submits that, the tender condition specifically stipulates individuals to have an experience of 2 years as on the relevant date. Reference is made to Ext.P1 tender, whereby the last date of submission of tender was shown 6 W.P.(C)No.5188/2011 as '6.5.2009' and as such, the minimum experience of 'two years' ought to have been as on 6.5.2009 or a date prior to the said date. The learned counsel submits that, all the documents produced by the petitioner along with Ext.P14 including the 'Bills' are of the years 2008 or 2009 and no document has ever been produced by the petitioner pertaining to any date of the year 2007. No other document has been produced to substantiate that the petitioner was having two years minimum experience as on the date of participation in the tender. The learned counsel adds that Ext.P3 is also not a genuine document, for the reason that the particulars of registration, TIN number and such other details are not reflected therefrom. It is also pointed out that, even the address of the petitioner is not correctly given in Ext.P3. Same is the position with regard to the other Bills produced by the petitioner along with Ext.P14 i.e. after getting an opportunity to have a further hearing pursuant to the intervention made by this Court as per Ext.P12 judgment. The learned counsel adds that eventhough the petitioner's establishment is a firm, it is not having registration and no document has been produced as to the constitution of the firm. W.P.(C)No.5188/2011 7 Reference is made to Ext.R(a) produced along with I.A.No.1198/2013, which shows that the letter sent by the respondent to the petitioner in the address furnished by the petitioner at the time of participating in the tender i.e. **“T.C.25/2161, Thyvila Road, Ayurveda College, Trivandrum- 695 001”** was returned unserved, with the endorsement made by the postal authorities that there was no such addressee . The petitioner has not cared to offer any explanation by filing any reply affidavit, as to the facts and figures pointed out by the respondent in this regard. But for the address showing the place of business as Air Port, Trivandrum, no other material such as Partnership deed, Electricity bill or as such other documents as to the registration under the KGST Act/KVAT Act or as to the payment of tax etc. has been furnished by the petitioner to substantiate the claim. The petitioner has not even chosen to produce any such document before this Court as well. If any such document is produced by the petitioner, it is stated that the respondent is ready to have a re-look into the matter, which however is not forth coming. 7. With regard to the legal provisions, the learned counsel W.P.(C)No.5188/2011 8 submits that the contract entered into between the petitioner and the respondent is only a 'normal contract', which does not have the characteristics of a 'statutory contract'. If it is not a statutory contract, there cannot be any writ of mandamus and the power under Article 226 of the Constitution of India is not liable to be invoked in the case of the petitioner. The scope of 'judicial review' has been explained by the Apex Court on many an occasion, referring to the 'decision making process' and holding that the 'decision' cannot be intercepted at all, unless the process is arbitrary or illegal. This is discernible from the decision of the Apex Court as reported in **Bareilly Development Authority and another v. Ajai Pal Singh and others** (1989 ( 2) SCC 116 -paragraph 21), **Meerut Development Authority v. Association of Management Studies and another** ( 2009(6) SCC 171- paragraphs 40 and 41), **GRIDCO Ltd. v. Sadananda Doloi** ( 2012(1) KLT SN 44). Further, 'Clause 30' of Ext.P5 agreement, refers to the remedy by way of 'Arbitration', if at all there is any dispute. The petitioner has not sought to pursue any such course. 8. After hearing both the sides, this Court finds that the W.P.(C)No.5188/2011 9 specific aspects pointed out from the part of the respondent, especially with reference to the absence of documents to show the experience of 'two years' in respect of the period covering from 6.5.2007 onwards or prior to that, stand unrebutted and no document has been produced by the petitioner to substantiate the said fact. All the documents produced along with Ext.P14 are of the period of '2008' or '2009' and as such, they do not come to the rescue of the petitioner, even if they are accepted as genuine documents. Absolutely, no tenable ground is raised in the writ petition to call for any interference. In the said circumstance, interference is declined and the writ petition is dismissed. 9. After dictating the judgment, the learned counsel for the petitioner submitted that the petitioner might be given two month's time for making alternate arrangements and to vacate the premises; simultaneously adding that the petitioner does not intend to challenge the proceedings any further. 10. Considering the facts and figures including the necessity to enable the petitioner to make alternate arrangements, this Court finds it 10 W.P.(C)No.5188/2011 fit and proper to give some breathing time to the petitioner. Accordingly, the petitioner is granted time till 31.03.2013 to vacate the premises, subject to the condition that the entire arrears of rent, if any and the payments due for the premises upto 31.03.2013 shall be effected by the petitioner within 'one month' from the date of receipt of a copy of this judgment. The respondent shall inform the petitioner as to the arrears of rent if any within 'one week' from the date of receipt of a copy of this judgment. On expiry of the said period of two months, vacant surrender of the premises shall be effected by the petitioner; failing which, it will be open for the respondent to proceed with further steps in accordance with law, also by availing the assistance of Police, if necessitated. ## **P.R.RAMACHANDRA MENON JUDGE** sv.