W.P.(C) Nos.18551 and 18564 of 2022

``` 1 ``` W.P.(C) Nos.18551 and 18564 of 2022 ## **`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 22[ND] DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA, 1944 ``` ``` WP(C) NO. 18551 OF 2022 ``` ## **`PETITIONER/S:`** ``` R.P.JANARDANAN AGED 70 YEARS S/O K. PERUMAL, SAI NIVAS, MELEPLAVARTHALA LANE, THAMALAM, POOJAPPURA P.O., THIRUVANANTHAPURAM-695 012. ``` ``` BY ADV J.G.SYAMNATH ``` ## **`RESPONDENT/S:`** ``` 1THE SECRETARY TRAVANCORE DEVASWOM BOARD,DEVASWOM HEAD QUARTERS. NANTHANCODE, THIRUVANANTHAPURAM-695 003. ``` ``` 2THE CHIEF ENGINEER, TRAVANCORE DEVASWOM BOARD,DEVASWOM HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM- 695 003. ``` ``` 3THE EXECUTIVE ENGINEER, ESTATE DIVISION, TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM- 695 003. 4THE ASSISTANT ENGINEER, TRAVANCORE DEVASWOM BOARD, VARKALA, THIRUVANANTHAPURAM- 695 141. ``` ``` 5 ADDL.R5 THE EXECUTIVE ENGINEER, THIRUVANANTHAPURAM DIVISION, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM, PIN - 695 003. ``` ``` 2 ``` W.P.(C) Nos.18551 and 18564 of 2022 ``` [ADD.R5 IS IMPLEADED AS PER ORDER DATED 04/08/2022 IN I.A:1/22 IN WP(C) 18551/22] 6 ADDL.R6 THE CHIEF VIGILANCE OFFICER VIGILACE WING, TRAVANCORE DEVASWOM BOARD, NANDANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM – 695 003 [ADD.R6 IS IMPLEADED AS PER JUDGMENT DATED 22/11/2022 IN WP(C) 18551/22& 18564 OF 2022] ``` ``` BY ADV SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMIS- SION ALONG WITH W.P.(C) No.18564 OF 2022 ON 22.11.2022 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 3 ``` W.P.(C) Nos.18551 and 18564 of 2022 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` **==> picture [8 x 8] intentionally omitted <==** ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` TUESDAY, THE 22[ND] DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA, 1944 ``` ``` WP(C) NO. 18564 OF 2022 ``` ``` PETITIONER/S: ``` ``` P. S. LALKUMAR AGED 56 YEARS S/O G. PRABHAKARAN NAIR, THIRUVONAM, KIZHAKKUMKARA, KULATHOOR P.O., THIRUVANANTHAPURAM- 695 583. BY ADV J.G.SYAMNATH ``` ## **`RESPONDENT/S:`** ``` 1THE SECRETARY TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS NANTHANCODE, THIRUVANANTHAPURAM- 695 003. 2THE CHIEF ENGINEER, TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM- 695 003. 3THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, TRAVANCORE DEVASWOM BOARD, CHENGANOOR, ALAPPUZHA- 689 121. 4THE ASSISTANT ENGINEER (ELECTRICAL), TRAVANCORE DEVASWOM BOARD, SABARIMALA DEVELOPMENT PROJECT, SABARIMALA- 689 662. 5 ADDL.R5 THE CHIEF VIGILANCE OFFICER VIGILACE WING, TRAVANCORE DEVASWOM BOARD, NANDANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM – 695 003 ``` ``` 4 ``` ## W.P.(C) Nos.18551 and 18564 of 2022 ``` [ADD.R5 IS IMPLEADED AS PER JUDGMENT DATED 22/11/2022 IN WP(C) 18551/22& 18564 OF 2022] ``` ``` BY ADV SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ALONG WITH W.P.(C) NO.18551 OF 2022 ON 22.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 5 ``` W.P.(C) Nos.18551 and 18564 of 2022 ## **JUDGMENT** ## Anil K. Narendran, J. The Chief Vigilance Officer, Vigilance Wing, Travancore Devaswom Board, Nandancode, Kowdiar P.O., Thiruvananthapuram-695 003, is suo motu impleaded as additional 6[th] respondent in W.P.(C)No.18551 of 2022 and as additional 5[th] respondent in W.P.(C)No.18564 of 2022. 2. Registry to carry out necessary corrections in the cause title. 3. W.P.(C)No.18551 of 2022:- The petitioner is a contractor having registration with the Travancore Devaswom Board. Going by the averments in the writ petition, the petitioner has been awarded contracts relating to the construction and maintenance of the temples in Navaikulam Devaswom under Varkala Group and Aniyoor Devaswom under Ulloor Group of the Travancore Devaswom Board. The details of the works, as stated in paragraph 2 of the writ petition, read thus; “2. The petitioner is a contractor registered with the Travancore Devaswom Board with registration No.7C/2009-10. He is a well-known Temple Architect in Kerala having many years of experience and is a master ``` 6 ``` W.P.(C) Nos.18551 and 18564 of 2022 in his trade with many famous temples in Kerala being built in his design and supervision. The petitioner was awarded with the work of construction and maintenance of temple coming under the Navaikulam Devaswom in Varkala group and Aniyoor Devaswom in Ulloor Group of the Travancore Devaswom Board in years 2018-21. The works awarded to the petitioner are as follows; i) Navaikulam Devaswom in Varkala Group-Providing over the roof for existing sadyalayam and kitchen front side. A true copy of the selection notice issued to the petitioner by the 3[rd] respondent dated 21.04.2017 is produced herewith and marked as Exhibit P1. Upon completion of the work, the bills submitted by the petitioner for Rs. 63,792.72/- were forwarded to the office of the 3[rd] respondent by the 4[th] respondent on 23.06.2018. A true copy of the letter issued to the 3[rd] respondent by the 4[th] respondent is produced herewith and marked as Exhibit P2. ii) Navaikulam Devaswom in Varkala Group-Providing over roof for existing sadyalayam and kitchen back side. A true copy of the selection notice issued to the petitioner by the 3[rd] respondent dated 10.11.2016 is produced herewith and marked as Exhibit P3. Upon completion of the work, the bills submitted by the petitioner for Rs.92,218/- were forwarded to the office of the 3[rd] respondent by the 4[th] respondent on 23.06.2018. A true copy of the letter issued to the 3[rd] respondent by the 4[th] respondent is produced herewith and marked as Exhibit P4. iii) Navaikulam Devaswom in Varkala Group-Providing ``` 7 ``` W.P.(C) Nos.18551 and 18564 of 2022 over the roof for the existing auditorium front side. A true copy of the selection notice issued to the petitioner by the 3[rd] respondent dated 21.04.2017 is produced herewith and marked as Exhibit P5. Upon completion of the work, the bills submitted by the petitioner for Rs.2,72,588/- were forwarded to the office of the 3[rd] respondent by the 4[th] respondent on 23.06.2018. A true copy of the letter issued to the 3[rd] respondent by the 4[th] respondent is produced herewith and marked as Exhibit P6. iv) Navaikulam Devaswom in Varkala Group-Providing over the roof for existing auditorium back side. A true copy of the selection notice issued to the petitioner by the 3[rd] respondent dated 21.04.2017 is produced herewith and marked as Exhibit P7. Upon completion of the work, the bills submitted by the petitioner for Rs.1,69,226/- were forwarded to the office of the 3[rd] respondent by the 4[th] respondent on 23.06.2018. A true copy of the letter issued to the 3[rd] respondent by the 4[th] respondent is produced herewith and marked as Exhibit P8. v) Navaikulam Devaswom in Varkala Group-Annual maintenance in connection with Ulsavam in 1193 M.E. Upon completion of the work a letter was issued by the 2[nd] respondent to the 1[st] respondent sanctioning Rs.1,92,000/- to the petitioner. A true copy of the letter dated 13.08.2020 issued by the 2[nd] respondent to the 1[st] respondent is produced herewith and marked as Exhibit P9. vi) Sarkara Devaswom in Varkala Group-Annual ``` 8 ``` W.P.(C) Nos.18551 and 18564 of 2022 maintenance in 1194 M.E. Upon completion of the work a letter was issued by the 2[nd] respondent to the 1[st] respondent sanctioning Rs.3,08,000/- to the petitioner. A true copy of the letter dated 25.08.2020 issued by the 2[nd] respondent to the 1[st] respondent is produced herewith and marked as Exhibit P10. vii) Varakala Devaswom in Varkala Group-Providing temporary vazhipadu counter (2nos.) for installing computer. Upon completion of the work, a letter was issued by the 2[nd] respondent to the 3[rd] respondent sanctioning Rs.3,00,040/- to the petitioner. A true copy of the letter dated 29.06.2021 issued by the 2[nd] respondent to the 3[rd] respondent is produced herewith and marked as Exhibit P11. viii) Aniyoor Devaswom in Ulloor Group-Maintenance to the temple structure. Upon completion of the work, a letter was issued by the 2[nd] respondent to the 1[st] respondent sanctioning Rs.1,75,000/- to the petitioner. A true copy of the letter dated 03.02.2020 issued by the 2[nd] respondent to the 1[st] respondent is produced herewith and marked as Exhibit P12.” 3.1. The petitioner has filed this Writ Petition under Article 226 of the Constitution of India seeking to issue a writ of mandamus directing the respondents to disburse the pending payments due to the petitioner along with interest thereon, within a time limit to be stipulated by this Court. 3.2. The averments in paragraphs 3 and 4 of the Writ ``` 9 ``` W.P.(C) Nos.18551 and 18564 of 2022 ## Petition, in support of the relief sought for, read thus; “3. The petitioner started and he completed the works promptly. After the completion of the work and the submission of the bills in a timely manner, the bills have not yet been processed and finally paid to the petitioner. A total of Rs.15,72,864.72/- was sought for by the petitioner, out of which he has not even received a part payment till date. A total of Rs.15,72,864.72/- of the petitioner is unlawfully withheld by the respondents. 4. For the past 3 years, the petitioner has been running from pillar to post and has been knocking on all available doors for getting the amount released. The petitioner, in an attempt to maintain good relationship with the respondents, has not resorted to legal recourse but has been continuously approaching them in person and has been making written submissions and representations seeking for the release of the pending payments. The petitioner even had to face recovery actions from Vijaya Bank, Thiruvananthapuram. Though those facts were brought to the notice of the respondents, no action in the affirmative was taken by them. The inaction of the respondents to release the payments due to the petitioner cannot be justified in any manner. The reports and the correspondences between the respondents from time to time have made it clear to the petitioner that the respondents are purposefully evading the payment due to the petitioner. Citing his financial constraints and the need for an early release of money, the petitioner has been submitting representations to the respondents. A true copy of the representation filed by the petitioner to ``` 10 ``` W.P.(C) Nos.18551 and 18564 of 2022 the 3[rd] respondent dated 05.08.2021 is produced herewith and marked as Exhibit P13. A true copy of the representation filed by the petitioner to the 2[nd] respondent dated 26.10.2021 is produced herewith and marked as Exhibit P14. A true copy of the representation filed by the petitioner to the 1[st] respondent dated 15.02.2022 is produced herewith and marked as Exhibit P15.” 3.3. A counter affidavit has been filed by the 5[th] respondent, opposing the reliefs sought for in this writ petition. Paragraphs 7 to 12 of that counter affidavit read thus; “7. It is submitted that the estimates for the four works [Sl. Nos. (i) to (iv)] in 'Navaikulam Devaswom, Varkala Group for providing over the roof for various parts of existing Auditorium-Kitchen and Sadyalayam', were prepared based on the 2012 schedule of rates and the same were sanctioned by Chief Engineer and the Board. All the works were awarded to the petitioner, as nominee of the Temple Advisory Committee at 10% below the sanctioned estimate rate. The Executive Engineer, Estate Division, the 3[rd] respondent herein had issued a selection notice to the petitioner to execute the agreement and to complete the work within three months from the date of handing over the site. He commenced all the works, but the works are not completed till date. 8. It is submitted that in the meanwhile, the 4[th] respondent has prepared part bills for these works and forwarded the same to the Executive Engineer, Estate Division in June 2018. Thereafter, the petitioner ``` 11 ``` W.P.(C) Nos.18551 and 18564 of 2022 requested to consider the part bills submitted by the Assistant Engineer as final and to release the payment. Accordingly, the then Executive Engineer, Estate Division sent a letter to the 4[th] respondent on 9.6.2020 seeking his clarification report on closing the bill without completing the works as per the sanctioned estimate. A true copy of letter No.124 dated 9.6.2020 issued by the 3[rd] respondent to the 4[th] respondent in respect of the work, Sl. No.(i) is produced herewith and marked as Exhibit R5(a). A true copy of letter No.124 dated 9.6.2020 issued by the 3[rd] respondent to the 4[th] respondent in respect of the work, Sl.No.(ii) is produced herewith and marked as Exhibit R5(b). A true copy of letter No.124 dated 9.6.2020 issued by the 3[rd] respondent to the 4[th] respondent in respect of the work, Sl. No.(iii) is produced herewith and marked as Exhibit R5(c). A true copy letter No.124 dated 9.6.2020 issued by the 3[rd] respondent to the 4[th] respondent in respect of the work, Sl. No.(iv) is produced herewith and marked as Exhibit R5(d). But no reply was received from the 4[th] respondent. 9. It is submitted that the 2[nd] respondent as per the letter dated 11.11.2021 sought for a report from this respondent as to the status of the work, the reason for the delay in sanctioning the bills to the contractor, etc. A true copy of the letter dated 11.11.2021 issued by the 2[nd] respondent to the 3[rd] respondent is produced herewith and marked as Exhibit R5(e). Though a copy of Exhibit R5(e) was forwarded to the 4[th] respondent seeking a detailed report on the matter, nothing was received. 10. It is submitted that again this respondent called for a ``` 12 ``` W.P.(C) Nos.18551 and 18564 of 2022 report from the 4[th] respondent regarding the status of the above works. The 4[th] respondent as per the report dated 23.06.2022 stated that the petitioner has not completed the work till date. The RCC columns are casted in different levels without any roofing sheet and the Sadyalayam is leaking. 11. It is submitted that as regards the works, Sl. Nos. (v) to (viii) in para 2, a lot of irregularities, i.e., manipulations and fabrication of documents are found in the work files. It is seen that even the signature of the Executive Engineer is forged. The work, Navaikulam Devaswom in Varkala Group-Annual maintenance in connection with Ulsavam in 1193 ME, was commenced without obtaining administrative sanction. No recommendation was sent by the Executive Engineer, Thiruvananthapuram Division for contract sanction. But contract sanction is seen obtained later producing forged documents. As regards the work, Sarkara Devaswom in Varkala Group-Annual maintenance in 1194 ME, no administrative sanction and contract sanction was obtained and the work schedule attached is a fabricated one and not prepared in the office of the Executive Engineer. The Executive Engineer, Thiruvananthapuram has reported the discrepancies noted in the files and the fabrications in the work schedule to the Chief Engineer as per the letter dated 15.10.2020. A true copy of letter no.715 dated 15.10.2020 sent by the Executive Engineer, Thiruvananthapuram to the 2[nd] respondent pointing out the irregularities is produced herewith and marked as Exhibit R5(f). A true copy of the reminder letter no.675 dated 20.10.2021 sent to the 2[nd] ``` 13 ``` W.P.(C) Nos.18551 and 18564 of 2022 respondent in respect of the discrepancies in the above work is produced herewith and marked as Exhibit R5(g). A true copy of reminder letter No.1.674 dated 20.10.2021 sent to the 2[nd] respondent in respect of the above work is produced herewith and marked as Exhibit R5(h). 12. It is submitted that the work, Varkala Devaswom in Varkala Group-providing temporary Vazhipadu Counter-2 Nos. for installing the computer, the documents returned along with the bill are fabricated, i.e., one fabricated schedule agreement was executed on post-dated stamp paper with forged signatures. A true copy of letter no.231 dated 05.07.2021 sent by the Executive Engineer, Thiruvananthapuram to the Chief Engineer pointing out the discrepancies found in the work file relating to the above work is produced herewith and marked as Exhibit R5(i). As regards the work, Aniyoor Devaswom in Ulloor Group-Maintenance to the temple structures, no report was received from the Assistant Engineer regarding the execution of the work and no work bill is received yet. A true copy of letter no.163 dated 07.05.2022 sent to the Chief Engineer in respect of the discrepancies in the works in Sarkara Devaswom, Navaikulam Devaswom and Varkala Devaswom is produced herewith and marked as Exhibit R5(j). The Executive Engineer, Thiruvananthapuram has sent a detailed report dated 21.06.2022 to the 2[nd] respondent in respect of the irregularities in the above works [Sl. Nos. (v) to (viii)]. A true copy of the report dated 21.06.2022 sent by the Executive Engineer, Thiruvananthapuram to the 2[nd] respondent is produced herewith and marked as Exhibit R5(k).” ``` 14 ``` W.P.(C) Nos.18551 and 18564 of 2022 4. W.P.(C) No.18564 of 2022:- The petitioner is an electrical contractor with registration No.6/SDP/B(ELE)17-18. Going by the averments in the writ petition, the petitioner was awarded the work of drawing power distribution UG cable from the transformer yard to 250 KVA DG room, laying UG cables from flour mill panel board to various motor and certain urgent needs in connection with Mandala-Makaravilakku festival season of 1194 M.E., vide Ext.P1 work order. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents to disburse the pending payments due to the petitioner along with interest, within a time limit to be stipulated by this Court. 4.1. The averments contained in paragraphs 2 to 6 of the writ petition, in support of the relief sought for, read thus; “2. The petitioner is an electrical contractor registered with the Travancore Devaswom Board with registration No. 6/SDP/B(ELE) 17-18. He is having many years of experience and is a master in his trade with many famous temples in Kerala being renovated and worked under his plan and supervision. The petitioner was awarded with the work of Sabarimala Devaswom M&M festival in 1194ME-Drawing power distribution UG cable from transformer yard to 250KVA DG room, laying UG cables from flour mill panel board to various motor & certain ``` 15 ``` W.P.(C) Nos.18551 and 18564 of 2022 urgent needs. The work was awarded to the petitioner as per tender conditions in the year 2018. A true copy of the selection notice issued to the petitioner by the 3[rd] respondent vide No. 290/3/19-20 is produced herewith and marked as Exhibit P1. 3. On the said date of accepting the tender, there were no circumstances to start or complete the work. Moreover, the Contract Sanction was accorded to the petitioner with regard to the said work in October, 2019, which itself is in violation of the existing rules and regulations. Most of the materials included in the schedule of this work were purchased and brought by the petitioner to Sabarimala following the instructions of the 4[th] respondent, who had demanded the same to be done, at the earliest. However, after the receipt of the Contract Sanction, when the petitioner tried to resume the work, he was informed that the site conditions are not favourable. It is also submitted that the rates quoted in the schedule of the work are as per the rates in the year 2014. It is not just difficult but almost impossible to purchase these materials at the market rates today. There has been an increase of almost 100% in the price of the materials. required. It is not feasible to procure the materials at the quoted rates, today. 4. Owing to these reasons, the petitioner though had started the work, was not able to complete the work promptly. After the part completion of the work and the submission of the bills in a timely manner, the bills have not yet been processed and finally paid to the petitioner. A bill amount of Rs. 4,00,000/- along with the EMD and ``` 16 ``` W.P.(C) Nos.18551 and 18564 of 2022 Security deposit of Rs.60,000/- was sought for by the petitioner, out of which he has not even received a part payment till date. A total of Rs. 4,60,000/- of the petitioner is unlawfully withheld by the respondents. 5. For the past 3 years, the petitioner has been running from pillar to post and has been knocking on all available doors for getting the amount released. The petitioner in an attempt to maintain a good relationship with the respondents has not resorted to legal recourse but has been continuously approaching them in person and has been making written submissions and representations seeking for the release of the pending payments. The petitioner is facing recovery actions from different banks. Though those facts were brought to the notice of the respondents, no action in the affirmative was taken by them. The inaction of the respondents to release the payments due to the petitioner, cannot be justified in any manner. The reports and the correspondences between the respondents from time to time have made it clear to the petitioner that the respondents are purposefully evading the payment due to the petitioner. Citing his financial constraints and the need for an early release of money, the petitioner has been submitting representations to the respondents. A true copy of the representation filed by the petitioner to the 4[th] respondent dated 21.05.2020 is produced herewith and marked as Exhibit P2. A true copy of the representation filed by the petitioner to the 3[rd] respondent is produced herewith and marked as Exhibit P3. 6. Even in spite of an elapse of time from the date of ``` 17 ``` W.P.(C) Nos.18551 and 18564 of 2022 submission of the representations by the petitioner, the respondents have not acted upon the same. The petitioner was never given a chance to appear before the respondents nor were his representations examined in merits. The representation submitted by the petitioner was not taken into consideration by the respondent to understand the real situation of the petitioner and how the non-releasing of pending payments would be detrimental for the livelihood of the petitioner.” 4.2. On 08.06.2022, when this writ petition came up for admission, the learned counsel for the petitioner sought an adjournment to address the arguments taking note of the law laid down by the Apex Court in **State of Kerala and others v. M.K.Jose [(2015) 9 SCC 433]** . 4.3. On 23.06.2022, when this writ petition came up for consideration, this Court passed the following order; “The petitioner has filed this writ petition seeking a writ of mandamus commanding the respondents to disburse the pending payments along with interest thereon, within a time limit to be stipulated by this Court. In the writ petition, it is averred that the petitioner, who is an electrical contractor registered with Travancore Devaswom Board with registration No.6/SDP/B(ELE) 1718 was awarded certain works at Sabarimala based on Ext.P1 selection notice. 2. On 08.06.2022, when this writ petition came up for admission, after arguing for some time, the learned ``` 18 ``` W.P.(C) Nos.18551 and 18564 of 2022 Standing Counsel for the petitioner sought an adjournment to address arguments taking note of the law laid down by the Apex Court in **State of Kerala v. M.K.Jose [(2015) 9 SCC 433]** . 3. Today, when this case is taken up for consideration, the learned Standing Counsel for Travancore Devaswom Board, on instructions, would submit that after the issuance of Ext.P1 selection notice, the petitioner has not chosen to execute an agreement. Now steps are being taken by the Board, against the petitioner. The fact that the petitioner did not undertake the contract work in question is admitted in Ext.P3 representation addressed to the Executive Engineer, Electrical Division, Chenganoor. 4. The learned Standing Counsel seeks time to file counter affidavit of the 3[rd] respondent - Executive Engineer, within two weeks.” ## 4.4. The 3[rd] respondent has filed a counter affidavit, opposing the reliefs sought for in this writ petition. Paragraphs 5 to 11 of that counter affidavit read thus; “5. It is submitted that administrative sanction for the work, drawing power distribution UG cable from transformer yard to 250 KVA DG room, laying UG cables from flour mill panel board to various motor & certain urgent needs, was accorded for an amount of Rs.8,10,000/-based on DSR 2016 schedule of rates. The work was tendered and awarded to the petitioner at 9% excess over the estimated rate. The selection notice was issued to the petitioner for executing the draft schedule agreement before 10.10.2019. But the petitioner did not ``` 19 ``` W.P.(C) Nos.18551 and 18564 of 2022 respond to the notice. Thereafter he executed only a small portion of the work. The major and essential part of the work, the installation of power distribution panel which distributes power to Vella Nivedyam and Sharkara Payasam preparation heaters is not done. The above work has to be completed urgently since the existing one is in a totally damaged condition. 6. It is submitted that the panel needs to be replaced with a new one for the preparation of the Nivedyams, considering the safety of the employees engaged in the preparation of the Nivedyams, and also for the smooth conduct of the ensuing pilgrimage season. There is no standby UG cable for drawing power from 11KV substation to the 250 KVA DG room, from where the electric supply is distributed to the Aravana plant. The present estimate contains provisions for laying 3.5 x 300 sq. mm cable from 11KV substation to this DG room as standby in case of emergency. 7. It is submitted that if the existing cable becomes faulty, the functioning of the Aravana plant will be stalled. The petitioner has taken four works in other Devaswoms also and failed to execute the works. Though several notices were issued to the petitioner to complete the works, he did not turn to complete the same. A copy of the report forwarded by the 3[rd] respondent to the 2[nd] respondent dated 9.5.2022 is produced herewith and marked as Exhibit R3(a). 8. It is submitted that due to the non-execution of the work awarded to the petitioner, respondents are facing serious difficulties and threats to the safety of the ``` 20 ``` W.P.(C) Nos.18551 and 18564 of 2022 employees working on the plants. Hence the respondents propose to terminate the works awarded to the petitioner at his risk and cost and to rearrange the work. The financial loss suffered by the Board in rearranging the work has to be assessed and recovered from the petitioner. 9. The averments in para 3 to 7 of the writ petition are not true to facts and hence denied. The estimate was prepared in the DSR 2016 schedule of rates, which prevailed at the time of awarding the contract. He failed to execute the work in spite of several notices requiring him to complete the work. He cannot now turn around and say that materials are not available at the quoted rates now. Since the works are to be rearranged and the loss and damage sustained to the Board have to be assessed and recovered from the petitioner, no amount can be released to the disputed work at this stage. 10. It is submitted that the petitioner alleges breach of contract in terms and seeks relief on the basis of contractual obligation. In **State of Bihar V. Jain Plastics and Chemicals Ltd. [(2002) 1 SCC 216]** the Apex Court held that a writ petition under Article 226 is not the proper proceedings for adjudicating disputes in respect of the enforcement of contractual obligations. In **State of Kerala V. 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]** , the Apex Court reiterated that a Writ Court should ordinarily not entertain a writ petition under Article 226 of the ``` 21 ``` W.P.(C) Nos.18551 and 18564 of 2022 Constitution of India, if there is a breach of contract involving disputed questions of fact. 11. It is submitted that in view of the law laid by the Apex Court in the decisions cited above it is clear that the claim made by the petitioner on the basis of disputed bill payments involves adjudication of disputed questions of fact in a contractual dispute, which is impermissible in a writ petition under Article 226 of the Constitution of India.” 5. Heard the learned counsel for the petitioners and the learned Standing Counsel for the Travancore Devaswom Board for the respondents. 6. After arguing for some time, the learned counsel for the petitioner seeks permission to withdraw both the writ petitions. 7. As stated by Scrutton, L.J, in **R. v. Kensington Income Tax Commissioners [(1917) 1 KB 486]** , an applicant who does not come with candid facts and ‘clean breast’ cannot hold a writ of the court with ‘soiled hands’. Suppression or concealment of material facts is not advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. 8. In **Prestige Lights Limited v. State Bank of India [(2007) 8 SCC 449]** the Apex Court reiterated that a ``` 22 ``` W.P.(C) Nos.18551 and 18564 of 2022 prerogative remedy is not a matter of course. Therefore, in exercising extraordinary power, a writ court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppress relevant materials or is otherwise guilty of misleading the court, the Court may dismiss the action without adjudicating the matter. This rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible. 9. In **Prestige Lights Limited** the Apex Court held further that, under Article 226 of the Constitution of India, the High Court is exercising discretionary and extraordinary jurisdiction. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the court, the writ court may refuse to entertain ``` 23 ``` W.P.(C) Nos.18551 and 18564 of 2022 the petition and dismiss it without entering into merits of the matter. 10. In **Usha Nanthini v. Regional Transport Authority, Palakkad [2018 (2) KHC 89]** this Court held that, once it is found that the petitioner has approached this Court invoking the extraordinary jurisdiction under Article 226 of the Constitution of India by suppressing material facts and making false statements, such an attempt made by the petitioner to abuse the process of this Court has to be dealt with appropriately. In such cases this Court has ample power to decline the permission sought for withdrawal of the writ petition. Dismissal of such writ petitions imposing exemplary costs is inevitable, in order to prevent abuse of process of this Court and to preserve purity of judicial proceedings. 11. The law laid down by this Court in **Usha Nanthini [2018 (2) KHC 89]** has been affirmed by a Division Bench of this Court in W.A.No.455 of 2018. 12. The averments in the counter affidavit filed in the respective writ petitions by the respondents would make it explicitly clear that the petitioner in the respective writ petitions has approached this Court, invoking the extraordinary ``` 24 ``` W.P.(C) Nos.18551 and 18564 of 2022 jurisdiction under Article 226 of the Constitution of India, suppressing material facts from the notice of this Court. Such an attempt made by the petitioner in the respective writ petitions to abuse the process of this Court has to be dealt with appropriately. 13. In the above circumstances, the petitioner in the respective writ petitions is not entitled to the relief sought for. Having considered the materials brought on record in the counter affidavits filed by the respondents, the Chief Vigilance Officer in the Vigilance Wing of the Travancore Devaswom Board, who is _suo motu_ impleaded as additional 6[th] respondent in W.P.(C)No.18551 of 2022 and as additional 5[th] respondent in W.P.(C)No.18564 of 2022, is directed to conduct a detailed enquiry into the contract works, which are the subject matter of both the writ petitions, with notice to the petitioner in the respective writ petition and also the officers concerned, and submit reports before the Travancore Devaswom Board, which shall be placed on record within a period of three months from the date of receipt of a certified copy of this judgment. Based on those reports, the Travancore Devaswom Board shall take necessary action against the concerned contractor/officer of the ``` 25 ``` W.P.(C) Nos.18551 and 18564 of 2022 Board. Any loss caused to the Board shall be recovered by proceeding against the concerned contractor/officer of the Board. Proceedings in this regard shall be initiated within a further period of one month. The writ petitions are disposed of with the above directions. **Sd/ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr ``` 26 ``` W.P.(C) Nos.18551 and 18564 of 2022 ## **`APPENDIX OF WP(C) 18551/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1A TRUE COPY OF THE SELECTION NOTICE ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT DATED 21-04-2017. Exhibit P2A TRUE COPY OF THE LETTER ISSUED TO THE 3RD RESPONDENT BY THE 4TH RESPOND- ENT DATED 23-06-2018. Exhibit P3A TRUE COPY OF THE SELECTION NOTICE ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT DATED 10-11-2016. Exhibit P4A TRUE COPY OF THE LETTER ISSUED TO THE 3RD RESPONDENT BY THE 4TH RESPOND- ENT DATED 23-06-2018. Exhibit P5A TRUE COPY OF THE SELECTION NOTICE ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT DATED 21-04-2017. Exhibit P6A TRUE COPY OF THE LETTER ISSUED TO THE 3RD RESPONDENT BY THE 4TH RESPOND- ENT DATED 23-06-2018. Exhibit P7A TRUE COPY OF THE SELECTION NOTICE ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT DATED 21-04-2017. Exhibit P8A TRUE COPY OF THE LETTER ISSUED TO THE 3RD RESPONDENT BY THE 4TH RESPOND- ENT DATED 23-06-2018. Exhibit P9A TRUE COPY OF THE LETTER DATED 13-08- 2020 ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. Exhibit P10A TRUE COPY OF THE LETTER DATED 25-08- 2020 ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. Exhibit P11A TRUE COPY OF THE LETTER DATED 29-06- 2021 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT. ``` ``` 27 ``` W.P.(C) Nos.18551 and 18564 of 2022 ``` Exhibit P12A TRUE COPY OF THE LETTER DATED 03-02- 2020 ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. ``` ``` Exhibit P13A TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER TO THE 3RD RE- SPONDENT DATED 05-08-2021. ``` ``` Exhibit P14A TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER TO THE 2ND RE- SPONDENT DATED 26-10-2021. ``` ``` Exhibit P15A TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER TO THE 1ST RE- SPONDENT DATED 15-02-2022. ``` ``` RESPONDENT EXHIBITS ``` ``` Exhibit R5(a)TRUE COPY OF THE LETTER NO.124 DATED 9/6/2020 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT IN RESPECT OF THE WORK, SI, NO.(I) ``` ``` Exhibit R5(b) ``` ``` TRUE COPY OF THE LETTER NO.124 DATED 9/6/2020 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT IN RESPECT OF THE WORK ``` ``` Exhibit R5(c) ``` ``` TRUE COPY OF THE LETTER NO.124 DATED 9/6/2020 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT IN RESPECT OF THE WORK, SI.NO.(III)> ``` ``` Exhibit R5(D) ``` ``` TRUE COPY OF THE LETTER NO.124 DATED 9/6/2020 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT IN RESPECT OF THE WORK, SI.NO(IV) ``` ``` Exhibit R5(E) ``` ``` TRUE COPY OF THE LETTER DATED 11/11/2021 ISSUED BY THE 2ND RESPOND- ENT TO THE 3RD RESPONDENT ``` ``` Exhibit R5(F) ``` ``` TRUE COPY OF THE LETTER DATED 15/10/2020 SENT BY THE EXECUTIVE ENGI- NEER, THIRUVANANTHAPURAM TO THE 2ND RESPONDENT POINTING OUT OF THE IRREGU- LARITIES ``` ``` 28 ``` ## W.P.(C) Nos.18551 and 18564 of 2022 ``` Exhibit R5(g) ``` ``` TRUE COPY OF THE REMINDER LETTER NO.675 DATED 20/10/2021 SENT TO THE 2ND RESPONDENT IN RESPECT OF THE DIS- CREPANCIES IN THE ABOVE WORK ``` ``` Exhibit R5(h) ``` ``` TRUE COPY OF THE REMINDER LETTER NO.674 DATED 20/10/2021 SENT TO THE 2ND RESPONDENT IN RESPECT OF THE DIS- CREPANCIES IN THE ABOVE WORK ``` ``` Exhibit R5(I) ``` ``` TRUE COPY OF THE LETTER NO.231 DATED 5/7/2021 SENT BY THE EXECUTIVE ENGI- NEER, THIRUVANANTHAPURAM TO THE CHIEF ENGINEER POINTING OUT THE DISCREPAN- CIES FOUND IN THE WORK FILE RELATING TO THE ABOVE WORK ``` ``` Exhibit R5(J) ``` ``` TRUE COPY OF THE LETTER NO.163 DATED 7/5/2022 SENT TO THE CHIEF ENGINEER IN RESPECT OF THE DISCREPANCIES IN THE ABOVE WORK ``` ``` Exhibit R5(K)TRUE COPY OF THE REPORT DATED 2/6/2022 SENT BY THE EXECUTIVE ENGINEER, THIRU- VANANTHAPURAM TO THE 2ND RESPONDENT ``` ``` 29 ``` W.P.(C) Nos.18551 and 18564 of 2022 ## **`APPENDIX OF WP(C) 18564/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1A TRUE COPY OF THE SELECTION NOTICE ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT VIDE NO. 290/3/19-20. ``` ``` Exhibit P2A TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER TO THE 4TH RE- SPONDENT DATED 21-05-2020. ``` ``` Exhibit P3A TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER TO THE 3RD RE- SPONDENT. ``` ``` RESPONDENT EXHIBITS ``` ``` Exhibit R3(A)TRUE COPY OF THE REPORT FORWARDED BY THE 3RD RESPONDENT TO THE 2ND RESPOND- ENT DATED 09/05/2022 ```