Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE P.G.AJITHKUMAR WEDNESDAY, THE 29TH DAY OF MARCH 2023 / 8TH CHAITHRA, 1945 W.P.(C)NO.18864 OF 2022 PETITIONER:
RADHAKRISHNAN C.G., S/O. GOPALAKRISHNAN NAIR, REMYA NIVAS, KIZHAKKENADA, VAIKOM P.O., PIN - 686 141, DIST. KOTTAYAM.
BY ADVS.
K.REGHU KOTTAPPURAM R.MAHESH (KOTTAPPURAM) MURUKESH REGHU
RESPONDENTS:
1 TRAVANCORE DEVASWOM BOARD, DEVASWOM HEADQUARTERS, NANTHANCODE, THIRUVANANTHAPURAM - 695 003, REPRESENTED BY ITS SECRETARY.
2 THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, DEVASWOM HEADQUARTERS, NANTHANCODE, THIRUVANANTHAPURAM - 695 003.
3 THE DEPUTY DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, VAIKOM DIST., KOTTAYAM - 686 141.
4 THE ASSISTANT DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, VAIKOM GROUP, VAIKOM, DIST. KOTTAYAM-686141.
5 THE ADMINISTRATIVE OFFICER, VAIKOM DEVASWOM, TRAVANCORE DEVASWOM BOARD,
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VAIKOM DIST., KOTTAYAM.-686141.
6 STATE TAX OFFICER, GST DEPARTMENT,NORTH GATE ,VAIKOM-686141 (ADDL.R6 SUO MOTU IMPLEADED AS PER ORDER DATED 3/8/2022 )
BY ADVS.
SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD ADVOCATE GENERAL OFFICE KERALA
OTHER PRESENT:
SR.GP. - SRI. S. RAJMOHAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Anil K. Narendran, J.
The petitioner, who was the Kuthaka holder for sale of pooja items, for the year 2017-18 and 2018-19, in Vaikom Sree Mahadeva Temple, which is a temple under the management of the 1st respondent Travancore Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 and 2 to refund or cause to be refunded a total sum of Rs.4,44,200/- deposited towards Earnest Money Deposit (EMD) for grant of kuthaka right to sell pooja items for the year 2017-18 and 2018-19 and to disburse the same to the petitioner forthwith. The grievance of the petitioner is that despite the direction contained in Ext.P8 judgment dated 29.03.2021 of a learned Single Judge in W.P.(C)No.7259 of 2021, no orders have been passed on Ext.P7 representation dated 14.03.2021 made for refund of the said amount of Rs.4,44,200/- deposited by the petitioner towards EMD. Therefore, the petitioner filed a fresh representation, i.e., Ext.P10 representation dated 31.05.2022 before the 2nd respondent Devaswom Commissioner and thereafter, moved this writ petition on
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06.06.2022 seeking the aforesaid relief.
2.
On 10.06.2022, when this writ petition came up for admission, the learned Standing Counsel for Travancore Devaswom Board sought time to get instructions and file statement. By the order dated 10.06.2022, the learned Standing Counsel was directed to get instructions as to the action taken pursuant to the direction contained in the order of this Court in Suo motu v. State of Kerala and others [2022/KER/20593 : CDJ 2022 Ker. HC 435] – order dated 24.02.2022 in DBP No.10 of 2022 – and also the further proceedings, if any, initiated against the petitioner.
On 27.06.2022, the learned Standing Counsel submitted that, the Board is yet to make arrangements for the sale of flower garlands inside Vaikom Sree Mahadeva Temple, after the termination of Kuthaka right granted to the petitioner for the year 2021-22. By the order dated 03.08.2022, the Sale Tax Officer, GST Department, North Gate, Vaikom was suo motu impleaded as the additional 6th respondent.
3.
The 5th respondent Administrative Officer, Vaikom Devaswom has filed an affidavit dated 04.07.2022 in terms of the directions contained in the order of this Court dated 27.06.2022, opposing the reliefs sought for in this writ
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petition. Paragraphs 6 and 7 of that affidavit read thus;
“6. It is submitted that during 2017-2018, petitioner was the kuthaka holder for the right to sell pooja articles in Vaikom Devaswom. He bid the right for the above item for an amount of Rs.21,33,333/-. But he has not remitted the GST amounting to Rs.3,84,000/- for the above item. During 2018-2019 also petitioner was the successful bidder for the right to sell pooja items in Vaikom Devaswom. He bid the above right for an amount of Rs.30,33,333/-. He didn't remit the GST amounting to Rs.5,46,000/- so far. During 2018-2019, he was the successful bidder for the right to sell 'Manjal and 'Kunkumam' in Vaikom Devaswom. He bid the above right for an amount of Rs.4,53,333/- and he didn't pay the GST amounting to Rs.81,600/-. He was the successful bidder for the right to sell gold and silver models in Vaikom Devaswom during 2018-2019 for an amount of Rs.1,69,000/-. He has not paid the GST amounting to Rs.30,420/- for this item. Moreover, he has cheated the devotees by selling decayed koovala mala to the devotees at exorbitant rate and obtained unjust enrichment. The amount collected in this regard is to be assessed and to be recovered from the petitioner apart from the penal action to be taken against him. Hence petitioner is not entitled to get the relief prayed for in the writ petition.
7. It is submitted that the right to sell koovala mala in Vaikom Devaswom for the year 2022-2023 was given to one Santhosh Kumar, Ellathu Veli, CMO-10, Cherthala, based on the quotations received. The rate quoted by him was the highest among the quotations
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received. He quoted an amount of Rs.3,525/- per day, i.e., for the remaining 304 days amounting to Rs.10,71,600/-. A copy of ROC No.2499/22/NS dated 18.06.2022 sanctioning the kuthaka in favour of Sri.Santhosh Kumar is produced herewith and marked as Ext.R5(a).
Sri.Santhosh Kumar entered into agreement with the Board with conditions to ensure quality garlands, and to exhibit price list etc. conditions regarding the staff to be engaged in the stall etc.”
4.
The said affidavit was followed by an affidavit filed by the 3rd respondent Deputy Commissioner, Vaikom, producing therewith Ext.R3(a) order dated 18.06.2022 granting Kuthaka right for sale of Koovalamala in Vaikom Sree Mahadeva Temple, for the year 2022-23, in favour of one Santhoshkumar, for a sum of Rs.10,71,600/-.
5.
The petitioner has filed a reply affidavit dated 11.07.2022, producing therewith Exts.P11 to P14 documents.
6.
The learned Government Pleader has filed a counter affidavit on behalf of the additional 6th respondent Sales Tax Officer, GST Department, producing therewith Exts.R6(a) to R6(c) documents. Paragraphs 4 and 5 of that counter affidavit read thus;
“4. That, admittedly, the petitioner herein was granted 'kuthaka'(monopoly) right, for various years, to sell
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‘vazhipad' (offerings to the idol) by the 1st respondent after inviting tenders. A true copy of the advertisement for tender for the year 2017-18 is produced herewith and marked as Ext.R6(a).
True copy of the advertisement for tender for the year 2018-19 is produced herewith and marked as Ext.R6(b). A true copy of the conditions for submitting tender applications is exhibited herewith and marked as EXHIBIT -R6(c). As per Clause 27 of the conditions for submitting tender applications, the successful bidder is bound to pay taxes due to the Government.
5. That, by becoming the successful bidder the petitioner has agreed to procure and supply 'vazhipad' items such as 'poomala' (garland), ‘swarnam velli alroopams' (miniature replicas) and 'manjal kumkumam for panachical' (turmeric and vermillion) and to make it available to the devotees at the vending point provided in the compound of Vaikom Mahadeva Temple. The above bidding of 'kuthaka' right comes under the GST service classification 999792 -Agreeing to do an act which comes under the heading 9997- other services as per the scheme of Classification of Services adopted for the purposes of GST which is a modified version of the United Nations Central Product Classification. The subject supply of services is covered under Entry No.35 of Notification No.11/ 2017 Central Tax (rate) dated 28.06.2017 and are liable to Central Goods and Services Tax at the rate of 9%.
Simultaneously, the transaction is also liable to tax at 9% under Kerala State Goods and Services Tax.
Therefore, the petitioner is liable to remit 18% GST for
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the agreed bid amounts.” 7.
The petitioner has filed a reply affidavit dated 27.12.2022 to the counter affidavit filed by the additional 6th respondent, producing therewith Ext.P15 document.
8.
Heard the learned counsel for the petitioner, the learned Standing Counsel for Travancore Devaswom Board for respondents 1 to 5 and also the learned Government Pleader for the additional 6th respondent Sales Tax Officer, GST Department.
9.
The issue that arises for consideration in this writ petition is as to whether the petitioner is entitled for refund of the EMD amounting to Rs.4,44,200/- deposited in respect of Kuthaka right to sell pooja items in Vaikom Sree Mahadeva Temple, for the years 2017-18 and 2018-19, as sought for in this writ petition.
10. The averments in the affidavit filed by the 3rd respondent Deputy Commissioner and that filed by the 5th respondent Administrative Officer would show that the non- refund of EMD amounting to Rs.4,44,200/- deposited by the petitioner in respect of Kuthaka right to sell pooja items in Vaikom Sree Mahadeva Temple for the years 2017-18 and 2018-19 is on account of the default committed by the
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petitioner in remitting GST amounting to Rs.3,84,000/- for the year 2017-18 (right to sell pooja items), Rs.5,46,000/- for the year 2018-19 (right to sell pooja items), Rs.81,600/- for the year 2018-19 (right to sell Manjal and Kumkum) and Rs.30,420/- for the year 2018-19 (right to sell gold and silver roopams). Along with the counter affidavit filed on behalf of the additional 6th respondent Sales Tax Officer, Ext.R6(a) and Ext.R6(b) tender notifications for the years 2017-18 and 2018-19 and also Ext.R6(c) general conditions, which forms part of the tender notification issued for the year 2021-22 are placed on record. As per clause (27) of the general conditions, the Kuthaka holder is bound to pay any amount due to the State towards tax.
11. The fact that, in terms of the tender conditions, the Kuthaka holder is required to remit only 50% of the bid amount at the time of confirmation, is not in dispute. It is also not in dispute that in respect of Kuthaka rights up to Rs.5,00,000/-, the Kuthaka holder has to remit the balance 50% of the bid amount within the time limit stipulated by the Board. Insofar as Kuthaka rights above Rs.5,00,000/- are concerned, the successful bidder has to remit 50% of the bid amount at the time of confirmation and the balance
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bid amount in two equal monthly installments, within the time limit stipulated by the Board. In case of any default in remitting the balance bid amount, the Board is entitled to levy penal interest at the rate of 18% per annum.
12. During the course of arguments, the submission made by the learned counsel for the petitioner is that, from the amount remitted by the successful bidder, at the time of confirmation, towards 50% of the bid amount, the Travancore Devaswom Board has to pay GST to the GST Department.
13. If the above argument advanced by the learned counsel for the petitioner is accepted, out of 50% of the bid amount remitted by the successful bidder at the time of confirmation of tender, the Travancore Devaswom Board has to remit GST at the prescribed rate, which is leviable on the entire bid amount. In Ext.P15 circular dated 24.09.2022 issued by the Travancore Devaswom Board it was made clear that, even in a case in which the total bid amount is permitted to be remitted in instalments, the GST for the entire bid amount has to be collected from the successful bidder at the initial stage itself. The said circular would not in any manner support the case of the petitioner that he is
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not liable to pay GST at the prescribed rate for the bid amount. Relying on the said circular, the petitioner cannot contend that the Travancore Devaswom Board has to remit GST for the entire bid amount from the amount remitted by the successful bidder, at the time of confirmation of tender, towards 50% of the total bid amount.
14. When the petitioner has defaulted payment of GST, as stated in the affidavits filed by respondents 3 and 5, for the years 2017-18 and 2018-19, he is not entitled for refund of the EMD of Rs.4,44,200/-, as sought for in Ext.P7 representation dated 14.03.2021 and Ext.P10 representation dated 31.05.2022. Therefore, the petitioner is not entitled to the reliefs sought for in this writ petition.
In the result, this writ petition fails and the same is accordingly dismissed. It is for the 1st respondent Travancore Devaswom Board to initiate appropriate proceedings against the petitioner for recovery of the balance amount payable towards GST, together with interest.
Sd/- ANIL K. NARENDRAN, JUDGE
Sd/- P.G. AJITHKUMAR, JUDGE MIN
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APPENDIX OF WP(C) 18864/2022
PETITIONER EXHIBITS Exhibit P1 A PHOTOCOPY OF RECEIPT DATED 14-3- 2017.
Exhibit P2 A PHOTOCOPY OF RECEIPT DATED 28-9- 2017.
Exhibit P3 A PHOTOCOPY OF BID SUBMISSION CONFIRMATION DATED 4-3-2017.
Exhibit P4 A PHOTOCOPY OF BID SUBMISSION CONFIRMATION DATED 23-2-2018.
Exhibit P5 A PHOTOCOPY OF BID SUBMISSION CONFIRMATION DATED 16-3-2018.
Exhibit P6 PHOTOCOPY OF BID SUBMISSION CONFIRMATION DATED 23-2-2018.
Exhibit P7 A PHOTOCOPY OF REPRESENTATION DATED 14-3-2021.
Exhibit P8 A PHOTOCOPY OF JUDGEMENT DATED 29-3- 2021 IN W.P.(C) NO. 7259/2021.
Exhibit P9 A PHOTOCOPY OF POSTAL ACKNOWLEDGEMENT CARD.
Exhibit P10 A PHOTOCOPY OF REPRESENTATION DATED 31-5-2022 TO THE DEVASWOM COMMISSIONER SENT BY THE PETITIONER.
Exhibit P11 A PHOTOCOPY OF TENDER NOTIFICATION NO.ROC 2356/2017/NS-2 DATED 10-2-2017 Exhibit P12 A PHOTOCOPY OF RECEIPT DATED 21-6-2022 Exhibit P13 A PHOTOCOPY OF RECEIPT DATED 23-3-2022 Exhibit P14 A PHOTOCOPY OF RECEIPT DATED 5-10-2020 RESPONDENT EXHIBITS EXHIBIT R6[A] TRUE COPY OF THE ADVERTISEMENT FOR
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TENDER FOR THE YEAR 2017-18 EXHIBIT R6[B] TRUE COPY OF THE ADVERTISEMENT FOR THE YEAR 2018-19 EXHIBIT R6[C] TRUE COPY OF THE CONDITIONS FOR SUBMITTING TENDER APPLICATIONS ANNEXURE R3(A) TRUE COPY OF THE ROC NO.2499/22/NS DATED 18.06.2022 SANCTIONING THE KUTHAKA IN FAVOUR OF SRI.SANTHOSH KUMAR ANNEXURE R5(A) TRUE COPY OF THE ROC NO.2499/22/NS DATED 18.06.2022 SANCTIONING THE KUTHAKA IN FAVOUR OF SRI.SANTHOSH KUMAR PETITIONER EXHIBITS EXHIBIT P15 A PHOTOCOPY OF CIRCULAR NO. 700/17/ ACCOUNTS DATED 24-9-2022 ISSUED BY THE TRAVANCORE DEVASWOM BOARD