Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 14TH DAY OF SEPTEMBER 2023 / 23TH BHADRA, 1945 WP(C) NO.9988 OF 2022 PETITIONER:
JANARDHANAN AGED 66 YEARS, S/O.KUMARAN NAIR, RESIDING AT KAKKARA HOUSE, BUILDING NO XXIX/315, KANDESWARAM DESOM, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK, IRINJALAKUDA MUNICIPALITY, IRINJALAKUNDA P.O., THRISSUR DISTRICT-680 121 BY ADVS.
SREEDEVI KYLASANATH ACHUTH KYLAS R.MAHESH MENON DEAGO JOHN K RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEVASWOM DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001 2 THE COMMISSIONER, SREE KOODALMANIKYAM DEVASWOM, DEVASWOM DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
3 SREE KOODALMANIKYAM DEVASWOM, REPRESENTED BY ITS ADMINISTRATOR, DOOR NO 23/316, IRINJALAKUDA MUNICIPALITY, IRINJALAKUDA P.O., THRISSUR DISTRICT-680 121 4 ADDL.R4. E.G. SIJILKUMAR
2 W.P.(C) No.16593 of 2022& conn. case EDATHIPARAMBIL HOUSE, LOKAMALESWARAM P.O., KODUNGALLUR, THRISSUR DISTRICT, PIN 680 121.
(ADDITIONAL R4 IS IMPLEADED AS PER ORDER DATED 06.12.2022 IN I.A.NO.02/2022 IN W.P.(C) NO.9988 OF 2022) 5 ADDL.R5. THE DEPUTY DIRECTOR KERALA STATE AUDIT DEPARTMENT, MALABAR DEVASWOM AUDIT, PALAKKAD. [ADDITIONAL R5 IS SUO MOTU IMPLEADED AS PER ORDER DATED 27.03.2023 IN WP(C)9988/2022.]
BY ADVS.
N.N.SUGUNAPALAN (SR.)
C.K.PAVITHRAN NITA.N.S.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 16.08.2023, ALONG WITH WP(C).16593/2022, THE COURT ON 14.09.2023 DELIVERED THE FOLLOWING:
3 W.P.(C) No.16593 of 2022& conn. case IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 14TH DAY OF SEPTEMBER 2023 / 23TH BHADRA, 1945 WP(C) NO.16593 OF 2022 PETITIONER:
E.G.SIJIL KUMAR, EDATHIPARAMBIL HOUSE, LOKAMALESWARAM P.O, KODUNGALLOR, THRISSUR DISTRICT BY ADVS.
C.K.PAVITHRAN NEENU PAVITHRAN RESPONDENTS:
1 KOODALMANIKYAM DEVASWOM MANAGING COMMITTEE,IRINJALAKUDA P.O, THRISSUR DISTRICT, REPRESENTED BY ADMINISTRATOR, KOODALMANIKYAM DEVASWOM, IRINJALAKKUDA , PIN 680121.
2 ADMINISTRATOR, KOODALMANIKYAM DEVASWOM, IRINJALAKKUDA P.O, THRISSUR DISTRICT, PIN 680 121.
3 THE COMMISSIONER, KOODALMANIKYAM DEVASWOM, DEVASWOM DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001.
4 ADDL.R4.THE DEPUTY DIRECTOR KERALA STATE AUDIT DEPARTMENT, MALABAR DEVASWOM AUDIT, PALAKKAD IS SUO MOTU IMPLEADED AS ADDITIONAL R4 AS PER ORDER DATED 27/3/2023 IN
4 W.P.(C) No.16593 of 2022& conn. case WPC.16593/2022 BY ADVS.
S.SUJIN GOVERNMENT PLEADER N.N.SUGUNAPALAN (SR.)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 16.08.2023, ALONG WITH WP(C).9988/2022, THE COURT ON 14.09.2023 DELIVERED THE FOLLOWING:
5 W.P.(C) No.16593 of 2022& conn. case J U D G M E N T P.G.Ajithkumar, J.
The matter in issue involved in these writ petitions are interwoven and hence these writ petitions are disposed of by this common judgment.
1. W.P.(C) No.9988 of 2022:- Petitioner is the lessee of Sangameswara Building Complex belonging to the 3rd respondent, Koodalmanickam Devaswom. The building was proposed to be constructed in terms of Ext.P1 project report.
The petitioner who bid the leasehold right in a public auction entered into Ext.P2 agreement with the 3rd respondent. As agreed to, the petitioner paid an amount of Rs.1,63,80,000/- to the 3rd respondent. The said amount was agreed to be adjusted towards monthly rent for 36 months at the rate of Rs.4,55,000/-. The construction was not completed in time.
However, the petitioner was coerced by the 3rd respondent to enter into a lease agreement. Despite execution of a lease agreement on 13.01.2020, the building was handed over to the petitioner only one month thereafter.
1.1. The petitioner noticed several defects to the
6 W.P.(C) No.16593 of 2022& conn. case building. The petitioner complained repeatedly and eventually a settlement agreement was entered into between the petitioner and the 3rd respondent on 03.03.2020 which is Ext.P8. However, the defects to the building were not rectified as agreed to in Ext.P8. The building was constructed not in consonance with Ext.P1 project report. Although the entire amount was paid by the petitioner, the 3rd respondent did not issue proper receipts for the payments, GST bill or TDS receipts which resulted in huge loss to the petitioner. The 3rd respondent had agreed to demolish the old building in front of the Sangameswara Building Complex, but failed to do so. The petitioner alleging the above and claiming the following reliefs filed this writ petition under Article 226 of the Constitution of India:
i) To issue a writ of mandamus or any other writ or order directing the 3rd respondent to complete the construction as prescribed in Ext.P1 and Ext. P2 within a time frame as fixed by this Hon'ble Court;
(ii) To issue a writ of mandamus or any other writ or order directing the 3rd respondent to extend the lease for such period during which the rent was levied despite the fact that the construction was incomplete;
7 W.P.(C) No.16593 of 2022& conn. case (iii) To issue a writ of mandamus or any other writ or order directing the 3rd respondent to provide adequate and sufficient supply of water and the allied infrastructure in Sangameswara Complex;
(iv) To issue a writ of mandamus or any other writ or order directing the 3rd respondent to provide a proper GST bill, TDS receipt or any valid receipt in return for the amount paid by the petitioner in his favor;
(v) To declare that the actions of 3rd respondent are unconstitutional and violative of fundamental rights under Art. 14 and Art. 21 of the Constitution of India;
(vi) To issue a writ of mandamus or any other writ or order directing the 3rd respondent to provide compensation as fixed by this Hon'ble Court for the loss suffered by the petitioner;
(vii) To issue a writ of mandamus or any other writ or order directing the 2nd respondent to consider and pass appropriate orders on Ext. P22 representation submitted by the petitioner within a time frame as fixed by this Hon'ble Court after affording an opportunity of hearing to the petitioner;
1.2. On 07.04.2022, when this writ petition came up for consideration, this Court directed the 3rd respondent to consider the grievance of the petitioner regarding non issuance of proper GST bill, TDS receipts, etc. with notice to the petitioner and to take an appropriate decision within a
8 W.P.(C) No.16593 of 2022& conn. case period of three weeks.
1.3. The 3rd respondent filed a counter affidavit refuting the allegations in the writ petition, however, conceding that there were a few defects in the construction of the shopping complex and also the delay in handing over possession of the building. The claim of the petitioner for damages on account of the delay was acceded to. The material contentions of the 3rd respondent contained in paragraph Nos.7 to 14 of the counter affidavit are extracted below:
“7. Regarding the contentions of the petitioner that as per Ext.P1 project report in the ground floor there has to be 9 shop rooms with safety shutters and a veranda, it is submitted that it was on the petitioner's own request that the ground floor was converted into a hall and glass sheet was fitted in the front of the veranda. This is evident from communication dated 07/03/2020 issued by the Consultant Engineer of the respondent Devaswom wherein the request of the petitioner to convert the shop rooms of the ground floor as a single hall and to provide a glass cover in the place of the veranda and shutters is taken note of. True copy of the communication dated 07/03/2020 of the Consultant Engineer of the respondent Devaswom is produced herewith and
9 W.P.(C) No.16593 of 2022& conn. case marked as Exhibit R3(b). The ground floor was thereafter given on lease by the petitioner to the Kallamkunnu Service Co-operative Bank Ltd for business purposes. In this regard a letter was received from the said service Bank dated 13/10/2020 requesting for a consent letter from the land lord Devaswom, true copy of which is produced herewith and marked as Exhibit R3(c). Accordingly the consent letter was also issued by the 3rd respondent Devaswom. True copy of the consent letter of the 3rd respondent is produced herewith and marked as Exhibit R3(d). A further consent letter was also issued by the Administrator of the Devaswom to the Secretary of the Irinjalakkuda Municipality for letting out the building on rent by the petitioner. True copy of the consent letter dated Nil is produced herewith and marked as Exhibit R3(e). The rooms on the 1st floor of the building has been let out on rent by the petitioner.
8. It is further submitted that there was no promise by the 3rd respondent Devaswom to demolish the building standing in front of the Tana Sangameswara Complex. In fact tiles were laid in the space between the two buildings and parking space has been provided by the Devaswom spending about 2 lakhs.
To ensure regular and continuous supply of water, motors have been fitted in the well. In the site where the Sanghameswara complex is situated there was
10 W.P.(C) No.16593 of 2022& conn. case previously a police headquarters and they were using the water from the well. The nearby hotel is also using
the
water
from
the
well.
9. It is submitted that the contractor who was entrusted with the civil works of the building had earlier approached this Hon'ble Court seeking directions to the Devaswom to pay the final bill and by
judgment
dated
16.09.2021
in
WP (C)no.7599/2021-Exhibit-P17 the 2nd respondent herein was directed to take a decision in the matter.
Pursuant
thereto
proceedings
No
KMDC- 1/24/2021/KMDC dated 09.02.2022 true copy of same is produced & marked as Exhibit-R-3(f) was issued by the 2nd respondent Commissioner directing the contractor to carry out the rectification works and to get the same certified by a Government Agency and thereafter the Devaswom was directed to pay the contractor (The Petitioner in Exhibit P 17), a sum of Rs. 8,33,795/- as the balance amount due as also the security amount of Rs.4,67,000/-. Based on the proceedings complying the above judgment, the petitioner was informed that all the rectification works would be started from 02.03.2022 as per the letter No. KMD3/183/2018 dated 24.02.2022 of the 3rd respondent Devaswom Exhibit P19. As such the contractor (Sri.E.G.Sijil Kumar) has visited the building for completing the rectification works.
But the contractor (Sri.Sijil Kumar) and the workers
11 W.P.(C) No.16593 of 2022& conn. case were not permitted by the petitioner and his men, to enter into the building and to start the rectification works. Hence the contractor submitted a letter dated 07.04.2022 to the R3 respondent Devaswom true copy of the same is produced and marked as (Exhibit R3(g)). Along with this, the counsel for the contractor forwarded a letter dated 11.04.2022 to the R3 Devaswom stating that the tenant petitioner is making obstacles to enter in to the building so that the pending civil works could not be completed and wanted to release the balance payment to the contractor within a week. True Copy of the same is produced and marked as Exhibit-R3(h) .Being the situation, the 2nd respondent Commissioner has requested the District Collector Thrissur to provide sufficient police protection to the building so as to enter into there, by the contractor & team to complete the rectification/repair works as per the letter No.KMDC1/24/2021/KMDC dated 7.6.2022 and is produced and marked as (Exhibit-R3(i).
But the District Collector,Thrissur has not taken any action on this and informed the R3 Devaswom that the petitioner has filed this writ petition before this Hon'ble Court, as per letterNo. DCTCR/6671/2022-C1 dated 16.06.2022 True copy of the same is produced and marked as Exhibit-R3(j).
The urgent repair works including the leakages could not be repaired, due to the non-operation of the
12 W.P.(C) No.16593 of 2022& conn. case petitioner. This will lead to irreparable loss to the 3rd respondent Devaswom building. In the meanwhile the contractor (Sri.E.G.Sijil Kumar) thereafter filed W.P.(C) No.16593/2022 stating that he went to the building several times to attend the work along with the co-workers but the petitioner and his men refused entry into the building so that he was forced to return.
10. It is submitted that, in the meanwhile, after filing this writ petition before the Hon'ble court, the petitioner informed the R3 Devaswom vide his letter dated 06.04.2022 about the similar flimsy allegations that he has forwarded earlier. True copy of the same is produced and marked as Exhibit R3-(k).
11. It is humbly submitted that the commercial building is owed by the R3 devaswom and now it is not able to complete the rectification/repair works in the building including the leakage during this rainy season (as per clause (20) of Exhibit P2.) The action of the petitioner that, he is not allowing the contractor & team, entrusted by the Devaswom to enter in to the building to rectify the works, complying the judgment in the writ petition filed by the contractor, is highly unethical, illegal and irregular.
12. The grounds raised in this writ petition are therefore without any basis. The petitioner was always present when the construction work of the
13 W.P.(C) No.16593 of 2022& conn. case building was being carried out and necessary changes have been carried out as requested by the petitioner to suit his needs. Exhibits P2 and P5 were entered into after discussions and deliberations and there has been no coercion from the side of the officials of the Devaswom. In fact it is the petitioner who has failed to remit the amount as agreed upon in time as per Exhibit P2, which led to the delay in completion of the work.
13. It is submitted that, the 3rd respondent Devaswom had paid the petitioner an amount of Rs.7,83,320/- by cheque No.757386 dated 09.03.2020 drawn on Indian Overseas Bank Branch Irinjalakuda towards the penalty for the delay in construction of the building. The Devaswom has also remitted the building tax, the property tax and also the GST. The Devaswom obtained the GST registration on 23.10.2020 Pursuant to the order of this Hon'ble Court dated 07.04.2022 in this writ petition, the Tax invoice in respect of the rent has been issued to the petitioner under cover (paid up to March 2022) as per the letter No.KMD3/183/2018 dated 27.04.2022 of the 3rd respondent, true copy of which is produced herewith and marked as Exhibit R3(l), Later the Tax invoice in respect of rent remitted has also been issued to the petitioner for April-2022 to June 2022 (3 months) vide letter no.KMD3/183/2018
14 W.P.(C) No.16593 of 2022& conn. case dated 30.07.2022, True copy of the same is produced herewith and marked as Exhibit R3 (m). The tax invoice up to 09.03.2023 i.e., till the end of the 36 month rent remitted period as per Exhibit P2 will be issued to the petitioner on monthly basis, as done earlier.
14. It is submitted that, this respondent has no knowledge about the water quality repost as per Exhibit P24 and this has been carried out by the petitioner on his own accord. None of the tenants, either the co-op mart on the ground floor or the tenants on the 1st floor have raised any complaint about this and regarding the building.” 1.4. The petitioner has filed a reply affidavit dated 08.12.2022 reiterating the contentions in the writ petition.
Ext.P27 to P29 were produced along with the reply affidavit.
I.A No.1 of 2023 was filed by the petitioner producing therewith additional documents as Ext.P30 to P33.
2.
W.P.(C) No. 16593 of 2020:- The petitioner is the contractor for the construction of Sangameswara Shopping Complex belonging to the Koodalmanickam Devaswom. The petitioner entered into the agreement dated 11.01.2019, Ext.P2 regarding the construction of the building.
2.1. The construction was completed and possession of
15 W.P.(C) No.16593 of 2022& conn. case the building was handed over to the Koodalmanickam Devaswom Administrator on 31.12.2019. The cost of construction was Rs.1,25,60,414/-. As on 25.01.2021, an amount of Rs.99,45,105/- alone was paid to the petitioner. An amount of Rs.26,15,309/- towards balance cost of construction and Rs.4,67,000/-, the security deposit are due to the petitioner. The Administrator intimated the petitioner that there were a few defects to the construction. Although such defects were not strictly in relation to the work he had undertaken, he informed the Administrator his readiness to do all such rectification works. The petitioner sent a letter to the Administrator informing that he would be starting the rectification works on 24.02.2022. Although he, along with men and materials reached the building, he was not allowed by the lessee in the building to carry out the rectification works. That fact was intimated to the Administrator but no steps were taken enabling the petitioner to carry out rectification works.
2.2. Since the Devaswom did not make payment of the amount due to the petitioner, he has filed W.P.(C) No.7599 of
16 W.P.(C) No.16593 of 2022& conn. case 2021. In that writ petition this Court, directed the Commissioner of Koodalmanikckam Devaswom, as per Ext.P5 judgment, to hear the petitioner as well as the Administrator and take a decision in the matter within two months. The 3rd respondent accordingly, after hearing both sides, decided that an amount of Rs.7,83,320/- which was paid to the lessee in the building as damages on account of delay in completion of the construction, would be deducted from the total amount due to the petitioner. Finding that Rs.20,84,115/- was the total amount due to the petitioner, the Commissioner directed the Devaswom to pay an amount of Rs.13,00,795/- to the petitioner, after deducting the aforesaid amount of damages.
The petitioner aggrieved by the said decision filed this writ petition under Article 226 of the Constitution of India seeking the following reliefs:
“i. Issue a writ of mandamus or appropriate writ, direction or order directing the 2nd respondent to make necessary arrangement, for the petitioner to carry out the rectification work as directed in Ext.P6.
ii. Declare that the petitioner is not liable to pay/reimburse the amount of Rs. 7,83,320/- paid to the
17 W.P.(C) No.16593 of 2022& conn. case tenant by the respondent.
iii. Issue a writ of certiorari or appropriate writ, direction or order quashing Ext P6 to the extent of limiting the claim of the petitioner towards Rs. 13,00,795/-.” 2.3. The 2nd respondent, Koodalmanickam Devaswom through its Administrator filed a counter affidavit. It is explained that Rs.7,83,320/- was to be paid to the lessee as damages on account of the delay which occurred due to the fault on the petitioner, and deducting that amount, Rs.13,00,795/- alone is due to the petitioner. Further, the steps taken by the Administrator for carrying out the rectification works are stated in the counter affidavit.
2.4. Paragraphs No. 6 to 8 in the counter affidavit, where such matters have been explained are extracted below:
“6. It is evident from the writ petition that Ext. P7 communication was issued by the 2nd respondent soon after Ext P6 order directing the petitioner to carry out the rectification works at the earliest and report to the Devaswom office. The further allegation in the writ petition is that the petitioner is unable to carry on the work as the tenant Sri.Janardanan Kakkara, the tenant and his men are refusing entry to the building and therefore the petitioner is unable to carry on the rectification work.
18 W.P.(C) No.16593 of 2022& conn. case 7. As matters now obtain, the 3rd respondent has on being informed by the 2nd respondent as also the Counsel for the petitioner about the situation prevailing as mentioned in Para 6 above addressed the District Collector, Thrissur by letter dated 07/06/2022 to extend sufficient Police protection for carrying out the rectification work. True copy of the letter dated 07/06/2022 issued by the 3rd respondent to the District Collector Thrissur is produced herewith and marked as Exhibit R2(a). The 2nd respondent had also by letter dated 05/04/2022 requested the tenant Sri.Janardanan to arrange facilities to petitioner for carrying out the rectification work. It is submitted that Sri.Janardanan has filed W.P.(C) No.9988 of 2022 regarding non completion of construction work and for other reliefs which is pending consideration before this Hon'ble Court. In the circumstances the 2nd respondent has taken up the matter with the 3rd respondent as well as with the tenant, Sri.Janardanan for facilitating the petitioner to complete the rectification works.
8. Moreover it is submitted that due to the delay in execution of work by the petitioner, the Devaswom has incurred losses and since the quality of the work was also not upto good standards the Devaswom had to incur additional expenditure which was solely due to the indifference and lapses on the part of the petitioner.
There has always been constant compliance from the tenant on account of the defects in the construction.
19 W.P.(C) No.16593 of 2022& conn. case The work relating to lift and electricity were also delayed on account of the delay in execution of the work by the petitioner.” 3.
The petitioner in W.P.(C) No.16593 of 2022 was impleaded as additional respondents No.4 in W.P.(C) No.9988 of 2022. The Deputy Director, Kerala State Audit Department, Malabar Devaswom Audit, Palakkad was suo motu impleaded as an additional respondent in both the writ petitions.
4.
Heard the learned counsel appearing for the respective petitioner, the learned Senior Government Pleader and the learned Senior Counsel for Sree Koodalmanickam Devaswom and its managing committee.
5.
Sangameswara Shopping complex was constructed in the property of Sree Koodalmanickam Devaswom, which is situated near Tana junction, Irinjalakuda. The petitioner in W.P.(c) No.16593 of 2022, Sri.E.G.Sijilkumar was the building contractor. The Devaswom had entered into an agreement dated 28.12.2018 with the petitioner in W.P.(c) No.9988 of 2022, Sri Janardhanan regarding the lease of the building. It was mutually agreed that Rs.4,55,000/- would be the monthly
20 W.P.(C) No.16593 of 2022& conn. case rent and an amount of Rs.1,63,80,000/- which is equivalent to the rent for a period of 36 months would be paid to the Devaswom in advance. 8 months was agreed to be the period for completing the construction and handing over possession of the building to Sri.Janardhanan. Various other terms were also included in the agreement dated 28.12.2018.
6.
The building contractor Sri.Sijilkumar claimed that the construction was completed and the building was handed over to the Devaswom on 31.12.2019. The lessee Sri.Janardhanan would contend that he was given possession of the building only in February 2020, as though a lease agreement was entered into on 13.01.2020. Apart from the delay, there arose disputes with respect to the quality of the construction. Sri.Janardhanan pointed out several defects in the building and demanded rectification. The administrator of the Koodalmanickam Devaswom conceded that there were a few defects to the building and asked Sri.Sijilkumar to rectify the defects. He was prepared to rectify the mistakes and after intimating the Administrator, he reached along with men and material in the building to carry out the rectification works on
21 W.P.(C) No.16593 of 2022& conn. case 24.02.2022. But, he was denied entry to the building by Sri.Janardhanan. The Administrator of Koodalmanickam Devaswom would contend that on getting intimation from Sri.Sijilkumar about the obstruction by Sri.Janardhanan to carry out the rectification works, the District Collector, Thrissur was requested to afford sufficient police protection to carry out the rectification works, for which a letter dated 07.04.2022 was sent. The matters remain as such.
7.
The claim of Sri.Janardhanan for damages in terms of the provisions in the agreement dated 28.12.2018 for delay in handing over possession of the building was entertained by the Devaswom and an amount of Rs.7,83,320/- was paid. The Devaswom, in turn, recovered that amount from the building contractor Sri.Sijilkumar saying that there was a delay of 165 days on his part in handing over possession of the building.
Sri.Sijilkumar vehemently refutes that plea of the Devaswom.
In the light of the said contentions of the respective parties, several questions of fact are required to be resolved for adjudicating on the reliefs claimed in these writ petitions. A few of such disputed questions are:
22 W.P.(C) No.16593 of 2022& conn. case 1.Is not the construction in accordance with the project report(Ext.P1 in W.P(c) No.9988 of 2022)?
2.Was there delay in completing the construction and handing over possession of the building?
3.Did the Devaswom authorities coerce Sri.Janardhanan to enter into the lease agreement dated 13.01.2020(Ext.P5 in W.P(c) No. 9988 of 2022)?
4.Are there defects in the construction of Sangameswara Building Complex and if so, who has the obligation to rectify the defects?
5.Is the Koodalmanickam Devaswom at fault in the matter of issuing receipts for the payments, GST bills and TDS receipts to Sri.Janardhanan?
6.Is the decision to realise a penalty of Rs.7,83,320/- from Sri.Sijilkumar violative of the terms of the contract he entered into with the Devaswom?
7.Was there an agreement to demolish the old building in front of the Sangameswara Building Complex and the Devaswom failed to do so?
8.
The above and the other questions that arise in the light of the contentions of the parties are questions of fact.
Resolutions of such questions can be arrived at based only on the appropriate pleadings and evidence.
23 W.P.(C) No.16593 of 2022& conn. case 9.
The question as to whether jurisdiction of the High Court under Art.226 of the Constitution would be open to resolve disputes arising out of the contracts between the State and the citizen was considered in Radhakrishna Agarwal and others v. State of Bihar and others [(1977) 3 SCC 457. A distinction was drawn between the cases of a contract entered into by the State in the exercise of a statutory power, and a contract entered into between a State and the person aggrieved which is non-statutory and purely contractual, wherein the rights and liabilities of the parties are governed by the terms of the contract. It was held that if the contracting party complains about breach of such a contract, the remedy of Art.226 would not be open for such complaints and no writ or order can be issued under Art.226 in such cases to compel the authorities to remedy the breach of contract by the State.
10.
In Bareilly Development Authority and others v Ajay Pal Singh and others [(1989) 2 SCC 116] the Apex Court held that even though a development authority had the trappings of a State, in a matter pertaining to
24 W.P.(C) No.16593 of 2022& conn. case determination of the price of the flats constructed by it and the rate of monthly installments to be paid, the authority after entering into the field of an ordinary contract was acting purely in its executive capacity, and the right and obligations of the parties inter se would be governed only as per the terms of the contract.
11.
The maintainability of writ petition under Art.226 in disputes relating to terms of contract with a statutory body fell for consideration in Kerala State Electricity Board and other v. Kurien E. Kalathil and others [(2000) 6 SCC 293]. It was held that the writ court would not ordinarily be the proper forum for resolution of disputes relating to terms of contract with a statutory body and disputes arising from contractual or commercial activities must be settled according to ordinary principles of law of contract. The observations made in the judgment in this regard are as follows :
“10. The interpretation and implementation of a clause in a contract cannot be the subject - matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract? If a term of a contract is violated, ordinarily
25 W.P.(C) No.16593 of 2022& conn. case the remedy is not the writ petition under Art.226. We are also unable to agree with the observations of the High Court that the contractor was seeking enforcement of a statutory contract. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. We are also unable to agree with the observation of the High Court that since the obligations imposed by the contract on the contracting parties come within the purview of the Contract Act, that would not make the contract statutory. Clearly, the High Court fell into an error in coming to the conclusion that the contract in question was statutory in nature.
11. A statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions. Disputes arising out of the terms of such contracts or alleged breaches have to be settled by the ordinary principles of law of contract. The fact that one of the parties to the agreement is a statutory or public body will not of itself affect the principles to be applied. The disputes about the meaning of a covenant in a contract or its enforceability have to be determined according to the usual principles of the Contract Act. Every act of a statutory body need not necessarily involve an exercise of statutory power. Statutory bodies, like private parties, have power to contract or deal with
26 W.P.(C) No.16593 of 2022& conn. case property. Such activities may not raise any issue of public law. In the present case, it has not been shown how the contract is statutory. The contract between the parties is the realm of private law. It is not a statutory contract. The disputes relating to interpretation of the terms and conditions of such a contract could not have been agitated in a petition under Art.226 of the Constitution of India. That is a matter for adjudication by a civil court or in arbitration if provided for in the contract. Whether any amount is due and if so, how much and refusal of the appellant to pay it is justified or not, are not the matters which could have been agitated and decided in a writ petition.”
12.
Indisputably, the questions involved in these writ petitions arose out of the agreements entered into between the respective petitioners with the Koodalmanickam Devaswom; one is the building contract and the other is a contract for lease. Both are commercial contracts and not statutory contracts. In the light of the law laid down in the aforesaid decisions such questions are to be resolved resorting to the civil law and not to the writ jurisdiction. That apart, the questions involved in these writ petitions which are
27 W.P.(C) No.16593 of 2022& conn. case enumerated in paragraph No. 7 above can be decided based on evidence alone. Those questions, mostly relating to the alleged violations of the contracts, are therefore to be resolved in appropriate civil suits and not in these writ proceedings.
13.
In State of Bihar v. Jain Plastic and 5 Chemicals Ltd. [(2002) 1 SCC 216] the Apex Court observed that serious disputed questions or rival claims of the parties with regard to the breach of contract are to be investigated and determined on the basis of evidence which may be led by parties in a properly instituted civil suit rather than by a Court issuing prerogative writs.
14.
In State of U.P. and others v. Bridge & Roof Company (India) Limited [(1996) 6 SCC 22] the Apex Court dealt with an issue relating to a dispute arising out of a contract and retention of amount due to the contractor. The Apex Court held as under:
“16. Firstly, the contract between the parties is a contract in the realm of private law. It is not a statutory contract. It is governed by the
28 W.P.(C) No.16593 of 2022& conn. case provisions of the Contract Act or, maybe, also by certain provisions of the Sale of Goods Act. Any dispute relating to interpretation of the terms and conditions of such a contract cannot be agitated, and could not have been agitated, in a writ petition. That is a matter either for arbitration as provided by the contract or for the civil court, as the case maybe. Whether any amount is due to the respondent from the appellant - Government under the contract and, if so, how much and the further question whether retention or refusal to pay any amount by the Government is justified, or not, are all matters which cannot be agitated in or adjudicated upon in a writ petition. The prayer in the writ petition, viz., to restrain the Government from deducting a particular amount from the writ petitioner's bill(s) was not a prayer which could be granted by the High Court under Art.226. xxxx."
15. In Popatrao Vyankatrao Patil v. State Of Maharashtra [(2020) 19 SCC 241], the Apex Court held that even if there are disputed questions of fact which fall for consideration but if they do not require elaborate evidence to be adduced, the High Court is not precluded from entertaining a petition under Article 226 of the Constitution of India.
29 W.P.(C) No.16593 of 2022& conn. case However, such a plenary power has to be exercised by the High Court in exceptional circumstances. The High Court would be justified in exercising such a power to the exclusion of other available remedies only when it finds that the action of the State or its instrumentality is arbitrary and unreasonable and, as such, violative of Article 14 of the Constitution of India.
We are of the view that the disputes involved in the writ petitions do not fall in such exceptional categories. Therefore these writ petitions can only fail. Accordingly, these writ petitions are dismissed without prejudice to the right of the respective petitioners to approach the civil court claiming appropriate remedy.
Sd/- ANIL K. NARENDRAN, JUDGE Sd/- P.G. AJITHKUMAR, JUDGE PV
30 W.P.(C) No.16593 of 2022& conn. case APPENDIX OF WP(C) 16593/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE TENDER NOTIFICATION.
Exhibit P2 TRUE COPY OF THE AGREEMENT DATED 11.01.2019.
Exhibit P3 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 13.07.2021.
Exhibit P4 TRUE COPY OF THE LETTER DATED 23.03.2020.
Exhibit P5 TRUE COPY OF THE JUDGMENT IN W.P.C NO.
7599/2021 DATED 16.09.2021.
Exhibit P6 TRUE COPY OF THE PROCEEDINGS NO.
KMDC/1/24/21/DATED 09.02.2022.
Exhibit P7 TRUE COPY OF THE LETTER DATED 17.02.2022 ISSUED BY 2ND RESPONDENT.
Exhibit P8 TRUE COPY OF THE LETTER DATED 24.02.2022 ISSUED BY 2ND RESPONDENT.
Exhibit P9 TRUE COPY OF THE LETTER ISSUED BY THE ADMINISTRATOR ADDRESSED TO THE PETITIONER DATED 05.03.2022.
Exhibit P10 TRUE COPY OF THE LETTER DATED 16.03.2022 GIVEN BY THE PETITIONER TO THE ADMINISTRATOR.
Exhibit P11 TRUE COPY OF THE LETTER DATED 08.04.2022 ADDRESSED TO COMMISSIONER, THE 3RD RESPONDENT.
Exhibit P12 TRUE COPY OF THE LAWYER NOTICE DATED 11.04.2022.
RESPONDENT EXHIBITS Exhibit R2(A) TRUE COPY OF THE LETTER DATED 07.06.2022 BY THE 3RD RESPONDENT TO
31 W.P.(C) No.16593 of 2022& conn. case THE DISTRICT COLLECTOR THRISSUR.
32 W.P.(C) No.16593 of 2022& conn. case APPENDIX OF WP(C) 9988/2022 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE PROJECT REPORT OF SANGAMESWARA COMPLEX, TANA IRINJALAKUDA PREPARED BY THE DEVASWOM ENGINEER OF 3RD RESPONDENT DATED NIL Exhibit P2 A TRUE COPY OF CONTRACT DATED 28.12.2018 ENTERED INTO BETWEEN PETITIONER AND THE 3RD RESPONDENT Exhibit P3 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT DATED NIL Exhibit P4 A TRUE COPY OF THE REPRESENTATION DATED 13.1.2020 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT Exhibit P5 A TRUE COPY OF THE LEASE DEED ENTERED INTO BETWEEN THE PETITIONER AND THE 3RD RESPONDENT DATED 13.1.2020 Exhibit P6 A TRUE COPY OF THE REPRESENTATION DATED 17.2.2020 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT Exhibit P7 A TRUE COPY OF THE COMMUNICATION NO KMD 3/183/2018 DATED 27.2.2020 ISSUED BY 3RD RESPONDENT Exhibit P8 A TRUE COPY OF THE SETTLEMENT ENTERED INTO BETWEEN THE PETITIONER AND THE 3RD RESPONDENT DATED 3.3.2020 Exhibit P9 A TRUE COPY OF THE RECEIPT DATED NIL ISSUED BY THE 3RD RESPONDENT ON RECEIPT OF RS 65,52,000/- Exhibit P9(A) A TRUE COPY OF THE RECEIPT DATED 20.1.2020 ISSUED BY THE 3RD RESPONDENT
33 W.P.(C) No.16593 of 2022& conn. case ON RECEIPT OF RS 35,00,000/- Exhibit P9(B) A TRUE COPY OF THE RECEIPT DATED 9.3.2020 ISSUED BY THE 3RD RESPONDENT ON RECEIPT OF RS 13,28,000/- Exhibit P10 A TRUE COPY OF THE COMM NO KMD3/183/2018 DATED 10.3.2020 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER Exhibit P11 A TRUE COPY OF THE COMM NO KMD3/183/2020 DATED 10.8.2020 ISSUED BY THE THE 3RD RESPONDENT TO THE PETITIONER Exhibit P12 A TRUE COPY OF THE REPRESENTATION DATED 14.8.2020 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT Exhibit P13 A TRUE COPY OF THE COMMON KMP NO 3/2183/2018 DATED 5.10.2020 ISSUED BY 3RD RESPONDENT Exhibit P14 A TRUE COPY OF THE MINUTES AND DECISIONS OF THE MANGING COMMITTEE MEETING HELD ON 16.10.2020 OF THE 3RD RESPONDENT DEVASWOM Exhibit P15 A TRUE COPY OF THE COMM NO KMD3/183/2018 DATED 5.1.2021 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER Exhibit P16 A TRUE COPY OF THE REPRESENTATION DATED 23.6.2021 SUBMITTED BY THE PETITIONER BEFORE 3RD RESPONDENT Exhibit P17 A TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN WPC NO 7599 OF 2021 DATED 16.9.2021 Exhibit P18 A TRUE COPY OF THE COMMON NO KMD3/183/2018 DATED 17.2.2022 ISSUED
34 W.P.(C) No.16593 of 2022& conn. case BY 3RD RESPONDENT TO MR SIJIL KUMAR.
Exhibit P19 A TRUE COPY OF THE COMM NO KMD3.183/2018 DATED 24.2.2022 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER Exhibit P20 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT DATED 26.2.2022 Exhibit P21 A TRUE COPY OF THE PHOTOGRAPHS OF SANGAMESWARA COMPLEX Exhibit P22 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 28.2.2022 WITH POSTAL RECEIPT Exhibit P23 A TRUE COPY OF THE COMM NO KMD3/183/2018 DATED 5.3.2022 ISSUED BY THE 3RD RESPONDENT Exhibit P24 A TRUE COPY OF THE WATER TEST REPORT OF THE WELL WATER OF SANGAMESWARA COMPLEX DATED 15.3.2022 Exhibit P25 A TRUE COPY OF THE COMM. NO. K.M.D.
3/183/2018 DATED 05-04-2022 ISSUED BY 3RD RESPONDENT TO THE PETITIONER.
Exhibit P26 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE 3RD RESPONDENT DATED 06-04-2022.
Exhibit P27 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY PETITIONER DATED 10.2022 BEFORE THE REVENUE DIVISONAL OFFICER AT IRINJALAKUDA.
Exhibit P28 A TRUE COPY OF THE ORDER NO.B4- 5022/2022 DATED 11.10.2022 ISSUED BY REVENUE DIVISION OFFICER AT
35 W.P.(C) No.16593 of 2022& conn. case IRINJALAKUDA Exhibit P29 A TRUE COPY OF THE RTI REPLY COMM.NO.KMDRI /30/2012 DATED 8.11.2022 ISSUED BY PUBLIC INFORMATION OFFICER OF RESPONDENT DEVASWOM.
Exhibit P-30 A TRUE COPY OF THE COMM. NO.
K.M.D.3/183/2018 DATED 03.01.2023 ISSUED BY 3RD RESPONDENT TO THE PETITIONER Exhibit P-31 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT DATED 06.01.2023 Exhibit P-32 A TRUE COPY OF THE COMM. NO.
KMDR1/30/2012 DATED 08.11.2022 ISSUED BY THE PUBLIC INFORMATION OFFICER OF 3RD RESPONDENT TO THE PETITIONER AS REPLY TO RTI APPLICATION Exhibit P-33 A TRUE COPY OF THE COMM. NO.
KMD3/183/2018 DATED 03.01.2023 RESPONDENT EXHIBITS R3(a) True copy of the letter dated 28/09/2020 and the details of the amount paid R3(b) True copy of the communication dated 07/03/2020 of the Consultant Engineer of the respondent Devaswom R3(c) True copy of the letter dated 13/10/2020 from the bank requesting a consent letter from the Devasom R3(d) True copy of the consent letter of the 3rd respondent
36 W.P.(C) No.16593 of 2022& conn. case R3(e) True copy of the consent letter dated NIL R3(f) True copy of the proceedings No.KMDC- 1/24/2021/KMDC dated 09/02/2022 R3(g) True copy of the letter dated 07/04/2022 to the respondent Devasom R3(h) True copy of the letter dated 11/04/2022 to the Devasom R3(i) True copy of the letter No.KMDc- 1/24/2021/KMDC dated 07/06/2022 R3(j) True copy of the letter No.DCTCR/6671/2022-C1 dated 16/06/2022 R3(k) True copy of the letter dated 06/04/2022 R3(l) True copy of letter No.KMD3/183/2018 dated 27/04/2022 R3(m) True copy of the letter No.KMD3/183/2018 dated 30/07/2022