Jayaprakash P.G. v. Travancore Devaswom Board - Kerala High Court, 24 Jan 2023

Judgment

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 24TH DAY OF JANUARY 2023 / 4TH MAGHA, 1944 W.P.(C) NO. 14177 OF 2022 PETITIONER:

RAJESH T.B., AGED 45 YEARS, S/O. BHADRAN NAIR, THURUNTHAYIL HOUSE, THAZHAM P.O., MALAYALAPPUZHA, PATHANAMTHITTA - 689 666.

BY ADVS.

D.AJITHKUMAR HARSHA S. NAIR RESPONDENTS:

1 TRAVANCORE DEVASWOM BOARD , TRAVANCORE DEVASWOM HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM - 695 003, REPRESENTED BY ITS SECRETARY.

2 SECRETARY, TRAVANCORE DEVASWOM BOARD, TRAVANCORE DEVASWOM HEAD QUARTERS, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM - 695 003.

3 DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM HEAD QUARTERS, NANTHANCODE, KOWDIAR POST, THIRUVANANTHAPURAM - 695 003.

4 ADMINISTRATIVE OFFICER, MALAYALAPPUZHA DEVASWOM, TRAVANCORE DEVASWOM BOARD, PATHANAMTHITTA - 689 666.

BY ADV SHRI.G.BIJU, SC, TRAVANCORE DEVASWOM BOARD

2 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 14.12.2022, ALONG WITH WP(C).14615/2022 AND CONNECTED CASES, THE COURT ON 24.01.2023 DELIVERED THE FOLLOWING:

3 W.P.(C) Nos.14177, 14184, 14185 and 14615 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 24TH DAY OF JANUARY 2023 / 4TH MAGHA, 1944 W.P.(C) NO. 14184 OF 2022 PETITIONER:

JAYAPRAKASH P.G.

AGED 36 YEARS, S/O.GOPINATHAN NAIR, PARAPPATTU PUTHEN VEEDU, THAZHAM P.O., MALAYALAPPUZHA, PATHANAMTHITTA - 689 666.

BY ADVS.

D.AJITHKUMAR HARSHA S. NAIR RESPONDENTS:

1 TRAVANCORE DEVASWOM BOARD DEVASWOM HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM - 695 003, REPRESENTED BY ITS SECRETARY.

2 SECRETARY TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM - 695 003.

3 DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM - 695 003.

4 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 4 ADMINISTRATIVE OFFICER MALAYALAPUZHA DEVASWOM, TRAVANCORE DEVASWOM BOARD, KUMBAZHA - MALAYALAPUZHA ROAD, MALAYALAPUZHA, PATHANAMTHITTA - 689 666.

BY ADV SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 14.12.2022, ALONG WITH WP(C).14615/2022 AND CONNECTED CASES, THE COURT ON 24.01.2023 DELIVERED THE FOLLOWING:

5 W.P.(C) Nos.14177, 14184, 14185 and 14615 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 24TH DAY OF JANUARY 2023 / 4TH MAGHA, 1944 W.P.(C) NO. 14185 OF 2022 PETITIONER:

RAJESH.T.B., AGED 45 YEARS S/O. BHADRAN NAIR, THURUNTHAYIL HOUSE, THAZHAM P.O., MALAYALAPPUZHA, PATHANAMTHITTA 689 666.

BY ADVS.

D.AJITHKUMAR HARSHA S. NAIR RESPONDENT/S:

1 TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM - 695 003, REPRESENTED BY ITS SECRETARY.

2 SECRETARY, TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM - 695 003.

3 DEVASWOM COMMISSIONER, DEVASWOM HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM - 695 003.

6 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 4 ADMINISTRATIVE OFFICER, MALAYALAPPUZHA DEVASWOM, TRAVANCORE DEVASWOM BOARD, KUMBAZHA, MALAYALAPUZHA ROAD, MALAYALAPUZHA, PATHANAMTHITTA - 689 666.

7 W.P.(C) Nos.14177, 14184, 14185 and 14615 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 24TH DAY OF JANUARY 2023 / 4TH MAGHA, 1944 W.P.(C) NO. 14615 OF 2022 PETITIONER:

VINISH R.

AGED 65 YEARS, S/O RAVEENDRAN, PANAVELI.P.O, KOTTARAKKARA, KOLLAM, PIN-691532.

BY ADVS.

D.AJITHKUMAR HARSHA S. NAIR RESPONDENTS:

1 TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, DEVASWOM HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM- 695003.

2 THE SECRETARY, TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM-695003.

3 DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANTHANCODE, THIRUVANANTHAPURAM-695003.

8 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 4 ADMINISTRATIVE OFFICER, KULASEKHARANALLUR SUB GROUP, (SREE MAHAGANAPATHY TEMPLE), TRAVANCORE DEVASWOM BOARD, KOTTARAKKARA, KOLLAM-691506.

BY ADV SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 14.12.2022, ALONG WITH WP(C).14177/2022, 14184/2022 AND CONNECTED CASES, THE COURT ON 24.01.2023 DELIVERED THE FOLLOWING:

9 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 JUDGMENT P.G.Ajithkumar, J.

The facts and reliefs claimed are identical and hence these Writ Petitions are disposed of by this common judgment.

The writ petitioners are successful bidders in the auctions conducted for allotting various Kuthaka rights in different Temples under the management of the Travancore Devaswom Board for the year 2022-2023. In terms of the tender conditions, 50% of the bid amount has to be paid immediately on finalisation of the bid. These petitioners accordingly had paid 50% of the respective bid amounts along with GST. They have started exercising the Kuthaka right also.

Thereafter, the 1st respondent-Devaswom Board issued letter No.ROC.21902/21/NS-2 dated 04.04.2022 to every Deputy Devaswom Commissioners and Assistant Devaswom Commissioners instructing not to confirm the auction in favour of the highest bidder in respect of various Kuthaka items, if the same bidder quoted a higher amount for the very same

10 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 Kuthaka item in the previous year, i.e., 2021-2022, unless they pay the difference amount. In terms of the said instruction, letters were sent to petitioners in these Writ Petitions asking them to pay the difference between the bid amount of the current year and that of the previous year. The writ petitioners challenge vires of the communication No.ROC.21902/2021/NS2 dated 04.04.2022 issued by the 1st respondent and the demand issued to the respective writ petitioners for payment of such difference amount. Common reliefs prayed for are,- 1) to quash the demand letter for payment of the difference between the bid amount of the present year and previous year and the letter No.ROC.21902/21/NS- 2 dated 04.04.2022 of the 1st respondent;

2) to issue a writ of mandamus directing the respondents to comply with the terms and conditions in the original tender notification, Ext.P1; and 3) to direct the 1st respondent to consider the representations submitted by the respective writ petitioners requesting to desist from demanding more amount and to receive the 2nd and 3rd instalments due to be paid by the respective writ petitioners.

11 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 3.

For easy reference, the details showing the difference amount demanded from the respective writ petitioners are tabulated below:

Sl.

No W.P.(C) No.

Kuthaka item Bid amount in 2021-22 (Rs.)

Bid amount in 2022-23 (Rs.)

Difference 1 14177 of 2022 Collecting 'Kozhi' 67,00,001/- 44,24,000/- 26,85,680/- 2 14814 of 2022 Selling pooja items 75,85,951/- 48,10,000/- 29,21,622/- 3 14185 of 2022 Collecting 'Manchadi' 30,00,000/- 26,58,500/- 4,02,,970/- 4 14615 of 2022 Selling pooja items 75,06,001/- 69,10,000/- 5,96,001/- 4.

These Writ Petitions were admitted and enforcement of the demand made by the respondents to make payment of the additional amount was stayed in all the Writ Petitions initially for a limited period. The interim order was extended from time to time.

A statement was filed by the Standing Counsel for the Travancore Devaswom Board on behalf of the respondents in each of the Writ Petitions. Similar are the contentions

12 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 raised. Each of the Kuthaka items was tendered twice. The contractors formed a cartel and did not bid in the said auctions with mala fide intention of reducing the auction price.

That resulted in huge loss to the Travancore Devaswom Board and the respective Deities. In such circumstances, the respondents were compelled to reduce the upset price twice.

It was thereafter the respective writ petitioners participated in the auction, which was held the third time. The 1st respondent on noticing the said malpractices and that in the year 2021-2022, during which period normal human life was seriously affected on account of the spread of COVID-19, the bid amount were more decided not to confirm the auction unless the difference amount is paid by the respective writ petitioners. The Deputy Devaswom Commissioners and Assistant Devaswom Commissioners were instructed accordingly. They in terms of such instructions issued notices to the respective writ petitioners, which is legal and justified.

If the writ petitioners are not prepared to make payment of such additional amounts, they are not entitled to be awarded

13 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 the contract, and the Kuthaka items are liable to be awarded in favour of those who are prepared to pay the higher amount. In such circumstances, the Writ Petitions are sought to be dismissed.

The respective petitioners filed reply affidavits controverting the contentions in the statement filed by the respondents. This Court has directed the respondents to make available for our perusal the files relating to the decision in question. The learned Standing Counsel for the respondents accordingly has made available the files for our perusal, which we have perused. The files were returned to the learned Standing Counsel after perusal as per the order dated 20.10.2022.

Heard the learned counsel appearing for the petitioners and the learned Standing Counsel for the Travancore Devaswom Board.

The learned Counsel appearing for the petitioners would submit that in Ext.P1 all the terms and conditions regarding the tender for awarding various Kuthaka rights in

14 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 different Temples under the Travancore Devaswom Board are enumerated. Although the e-tender was notified twice, nobody came forward to bid the said right. It was thereafter the Travancore Devaswom Board, on getting convinced that the upset price fixed was high, reduced the upset price for various Kuthaka rights by 25%, 30%, 35% and 40%. Accordingly, the tender was floated again on 30.03.2022. It was in the said auction the writ petitioners participated and offered the highest amounts for the respective Kuthaka items. The terms and conditions for the auction were again as contained in Ext.P1 and in terms of the same, all the petitioners have remitted 50% bid amount along with the GST in time.

The learned Counsel appearing for the petitioners would submit that having confirmed the tender in respect of various Kuthaka items in favour of the respective petitioners, the respondents are estopped from retracting from the terms and conditions in Ext.P1 and demand more amount.

Therefore, the decision taken by the 1st respondent to insist on payment of the additional amount by the petitioners and

15 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 the consequent demands (Ext.P6 in W.P.(C) No.14177, Ext.P4 in W.P.(C) No.14184 of 2022, Ext.P6 in W.P.(C) No.14185 of 2022 and Ext.P4 in W.P(C) No.14615 of 2022) are illegal and unsustainable in law.

10.

The learned Standing Counsel for the Travancore Devaswom Board on the other hand would submit that the turn of events resulting in confirmation of the auction in favour of these petitioners would reveal a cartel formation by the contractors, practically amounting to bid-rigging. These petitioners bid the respective Kuthala rights in 2021-2022 for far higher amounts, although during 2021-2022 normal human life was not possible on account of the restrictions due to the spread of COVID-19 and the number of Temple-goers was very limited. More conspicuously, either these petitioners or some other contractors bid the same Kuthaka rights for still higher amount during the year 2020-2021. After taking into all such aspects only the Devaswom Board took a decision to insist on the contractors to make payment of additional amounts to the Board.

16 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 11.

The learned counsel appearing for the petitioners falls upon the principle laid down by the Apex Court in ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd. [(2004) 3 SCC 553] that once the State or an instrumentality of the State is a party to the contract, it has an obligation in law to act fairly, justly and reasonably, which is a requirement of Article 14 of the Constitution of India, and contended that the respondents are estopped from varying the terms and conditions in Ext.P1.

The learned Counsel would accordingly submit that the demand for additional amount than what has been quoted by the respective petitioners is illegal.

12.

It is an undisputed fact that in the auction held on 30.03.2022 the petitioners were the highest bidders for the respective Kuthaka items. The normal procedure of a tender process is to accept the offer of the highest bidder and strike the deal, which amounts to acceptance of the offer, and a contract is thereby entered into. These petitioners, in terms of the terms in Ext. P1, remitted the first installment of 50%

17 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 along with GST. Pointing out that fact the petitioners would contend that the respondents are estopped from deviating from the terms and conditions in Ext.P1. As a matter of fact, none of the petitioners had executed a formal contract although they remitted the first installment and started exercising the Kuthaka right. Immediately i.e., on 04.04.2022, the 1st respondent decided to insist on payment of additional payment.

13.

In ABL International Ltd. (supra), the Apex Court held, “Unlike the private parties the State while exercising its powers and discharging its functions, acts indubitably, as is expected of it, for public good and in public interest.

The impact of every State action is also on public interest. It is really the nature of its personality as State which is significant and must characterize all its actions, in whatever field, and not the nature of function, contractual or otherwise, which is decisive of the nature of scrutiny permitted for examining the validity of its act.

The requirement of Article 14 being the duty to act fairly, justly and reasonably, there is nothing which militates against the concept of requiring the State always to so

18 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 act, even in contractual matters. This factor alone is sufficient to import at least the minimal requirements of public law obligations and impress with this character the contracts made by the State or its instrumentality. It is a different matter that the scope of judicial review in respect of disputes tailing within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes.

However, to the extent challenge is made on the ground of violation of Article 14 by alleging that the impugned act is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the domain of contractual obligations would not relieve the State of its obligation to comply with the basic requirements of Article 14.” Therefore, it is the obligation of the State and statutory authorities just like any other contracting party to act fairly and reasonably by sticking to the terms of the contract and even the assurances given during the formation of the contract. The doctrine of promissory estoppel may bar a party from any departure. That is the general principle of law. But, it is not invariable. The rule is subject to exceptions.

19 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 14. In Union of India v. Godfrey Philips India Limited [(1985) 4 SCC 369] the Apex Court held, “Now the doctrine of promissory estoppel is well- established in the administrative law of India. It represents a principle evolved by equity to avoid injustice and, though commonly named promissory estoppel, it is neither in the realm of contract nor in the realm of estoppel. The basis of this doctrine is the interposition of equity which has always, true to its form, stepped in to mitigate the rigour of strict law. This doctrine, though of ancient vintage, was rescued from obscurity by the decision of Mr. Justice Denning as he then was, in his celebrated judgment in Central London property Trust Limited v. High Trees House Limited [(1956) 1 All E.R. 256]. The true principle of promissory estoppel is that where one party has by his word or conduct made to the other a clear and unequivocal promise or representation which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise or representation is made, and it is in fact so acted upon by the other party, the promise or representation would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so, having regard to the dealings which have taken place between the parties.” (underline supplied)

20 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 15.

In Central London Property Trust Limited (supra) the plaintiff let out to the defendant a block of flats for a term of 99 years. The annual ground rent agreed was 2,500 pounds. In the wake of the war, the plaintiff had agreed by sending a letter to the defendant that the ground rent would be reduced to 1,250 pounds. However, by the beginning of the year 1945, the defendant could let out all the flats. Then the plaintiff demanded to pay the originally agreed rent of 2,500 pounds. The defendant on the said facts contended that the plaintiff was estopped from demanding rent at the higher rate.

The Court through Lord Dening J. held,- “(1) that where parties enter into an arrangement which is intended to create legal relations between them and in pursuance of such arrangement one party makes a promise to the other which he knows will be acted on and which is in fact acted on by the promisee, the court will treat the promise as binding on the promisor to the extent that it will not allow him to act inconsistently with it even although the promise may not be supported by consideration in the strict sense and the effect of the arrangement made is to vary the terms of a contract under seal by one of less

21 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 value; and (2) that the arrangement made between the plaintiffs and the defendants in January, 1940, was one which fell within the above category and, accordingly, that the agreement for the reduction. of the ground rent was binding on the plaintiff company, but that it only remained operative so long as the conditions giving rise to it continued to exist and that on their ceasing to do so in 1945 the

plaintiffs were entitled to recover the ground rent claimed at the rate reserved by the lease.” 16.

How far the promissory estoppel would debar the State and statutory authorities from raising a contention on equitable grounds to vary the terms of the agreement has been the subject of discussion of the Apex Court in a catena of decisions. In Kasinka Trading v. Union of India [(1995) 1 SCC 274], the Apex Court held,- "12. It has been settled by this Court that the doctrine of promissory estoppel is applicable against the Government also particularly where it is necessary to prevent fraud or manifest injustice. The doctrine, however, cannot be pressed into aid to compel the Government or the public authority "to carry out a representation or promise which is contrary to law or

22 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 which was outside the authority or power of the officer of the Government or of the public authority to make".

In our opinion, the doctrine of promissory estoppel cannot be invoked in the abstract and the courts are bound to consider all aspects including the results sought to be achieved and the public good at large, because while considering the applicability of the doctrine, the courts have to do equity and the fundamental principles of equity must for ever be present to the mind of the court, while considering the applicability of the doctrine. The doctrine must yield when the equity so demands if it can be shown having regard to the facts and circumstances of the case that it would be inequitable to hold the Government or the public authority to its promise, assurance or representation." (emphasis supplied)

23 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 17.

In Union of India v. Unicorn Industries [(2019) 10 SCC 575], the Apex Court held,- “The doctrine of promissory estoppel is applicable against the Government also, particularly where it is necessary to prevent fraud or manifest injustice. The doctrine, however, cannot be pressed into aid to compel the Government or the public authority "to carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of the Government or of the public authority to make".

There is preponderance of judicial opinion that to invoke the doctrine of promissory estoppel clear, sound and positive foundation must be laid in the petition itself by the party invoking the doctrine and that bald expressions, without any supporting material, to the effect that the doctrine is attracted because the party invoking the doctrine has altered its position relying on the assurance of the Government would not be sufficient to press into aid the doctrine. The doctrine of promissory estoppel cannot be invoked in the abstract and the courts are bound to consider all aspects including the results sought to be achieved and the public good at large, because while considering the applicability of the doctrine, the courts have to do equity and the fundamental principles of equity must for ever be present to the mind of the court, while

24 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 considering the applicability of the doctrine. The doctrine must yield when the equity so demands if it can be shown having regard to the facts and circumstances of the case that it would be inequitable to hold the Government or the public authority to its promise, assurance or representation.” (emphasis supplied) 18.

In Yamuna Expressway Industrial Development Authority v. Shakuntla Education and Welfare Society [2022 SCC OnLine SC 655], the Apex Court held,- “54. It has been held by this Court that the doctrine of promissory estoppel cannot be invoked in the abstract and the courts are bound to consider all aspects including the results sought to be achieved and the public good at large. It has been held that while considering the applicability of the doctrine, the courts have to do equity and the fundamental principles of equity must for ever be present to the mind of the court, while considering the applicability of the doctrine. It has been held that the doctrine being an equitable doctrine, it must yield when the equity so requires, if it can be shown by the Government or Public Authority that having regard to the facts and circumstances as they have transpired, it would be inequitable to hold the Government or the Public Authority to the promise, assurance or representation made by it.” (emphasis supplied)

25 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 19.

The conspectus of the principles of law laid down in the aforesaid decisions is that the courts are bound to consider the plea raised by the State or statutory authorities against promissory estoppel in the touchstone of equity, in the light of all the facts and circumstances of the case on hand. if the public good at large is involved, the State or a statutory authority cannot be fastened with unconscionable term or condition in a contract by applying the doctrine of promissory estoppel.

20.

Coming back to the case, the following are the bid amounts of Kuthaka items in question during the last three years and the contractors:

W.P.(C) No.14177 of 2022 - Right to sell rooster in Malayolappuzha Devaswom Sl.

No Year Amount (Rs.)

Bidder 1 2020-2021 95,59,999/- Gopakumar, Lakshmi Sadanam, Malayalapuzha.

2 2021-2022 67,00,000/- T.B.Rajesh, Thurantayil Puthen veedu, Malayalapuzha.

3 2022-2023 44,24,000/- T.B.Rajesh, Thurantayil Puthen veedu, Malayalapuzha.

26 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 W.P.(C) No.14184 of 2022 - Right to sell Pooja items in Malayolappuzha Devaswom Sl.

No Year Amount (Rs.)

Bidder 1 2020-2021 85,75,751/- T.S.Sundaresan, Thundiyil Veedu, Malayalapuzha.

2 2021-2022 72,85,951/- Vinod K.P., Parayil Puthen Veedu, Kumbazha.

3 2022-2023 48,10,000/- Vinod K.P., Parayil Puthen Veedu, Kumbazha.

W.P.(C) No.14185 of 2022 - Right to collect Manchadi in Malayolappuzha Devaswom Sl.

No Year Amount (Rs.)

Bidder 1 2020-2021 55,50,999/- Gopakumar, Lakshmi Sadanam, Malayalapuzha.

2 2021-2022 30,00,000/- Rakesh, Malayalapuzha.

3 2022-2023 26,58,000/- T.B.Rajesh, Thurantayil Puthen veedu, Malayalapuzha.

W.P.(C) No.14165 of 2022 - Right to sell sell Pooja items in Sree Mahaganapathy Temple Sl.

No Year Amount (Rs.)

Bidder 1 2020-2021 1,35,00,108/- Anil Kumar, Kochuparakkal, Kizhakkekara, Kottarakkara.

27 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 2 2021-2022 75,06,001/- Vinish, Paravila Veedu, Vilangara P.O., Kottarakkara.

3 2022-2023 69,10,000/- Vinish, Paravila Veedu, Vilangara P.O., Kottarakkara.

21.

For all the aforesaid Kuthaka items, the e-tender was held twice. Since the petitioners were the contractors in the previous years for the same Kuthaka items, it cannot be said that they were not in a position to participate in the auction at the first instance itself. They eluded from the auction twice. Only after the upset price was considerably reduced they came forward to participate in the auction. In the circumstances, what can be understood is that all of them have purposefully avoided participating in the auction. When a few persons by agreement or understanding, among themselves, in their attempt to control the pricing, limit, control or attempt to control the sale, price, etc. of goods or services, that amounts to cartelisation. In that view of the matter if the persons interested in bidding, on the basis of their mutual understanding, fail to participate in the auction

28 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 and thereby compelling the employer to award the contract at an unconscionably lower price, a cartel formation can certainly be inferred. It is true that in this case there is no visible materials to establish a cartel formation. It may be noted the petitioners themselves bid the same Kuthaka rights in the previous year for higher amounts, and after their abstinence from participating in the successive auctions, thereby compelling the Travancore Devaswom Board to reduce the upset price considerably, bid the tender by quoting very low amounts. It certainly establishes a dubitable act on the part of the petitioners. Those circumstances are enough to find that the petitioners formed themselves a cartel. They thereby illegally and unjustly had interfered with the tender process.

22.

In the light of the law laid down by the Apex Court in the aforesaid decisions, a person who is guilty of iniquitous acts in the formation of the contract, cannot, in equity, advance the plea of promissory estoppel. The doctrine of promissory estoppel is inapplicable in such a situation and the public authority can repudiate the contract. Therefore, the

29 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 plea of the petitioners that the respondents are estopped from demanding any additional amount over and above the bid amount they have quoted is untenable.

23.

On account of the spread of COVID-19 the number of devotees reaching the Temples were comparatively low last year and there was such an apprehension that a similar situation would prevail this year also. But such an apprehension was turned out to be misplaced. This year, 2022-2023 there have not been any restrictions for human activities on account of COVID-19. The principle in Central London Property Trust Limited (supra) as approved by the Apex Court in the aforementioned decisions is therefore applicable to this case.

24.

The 1st respondent Board as per the letter dated 04.04.2022 instructed to collect additional amounts from the respective petitioners being the difference between the bid amount of this year and previous year. We find no reason to find fault with the said decision of the 1st respondent and consequent direction to the petitioners to remit the additional

30 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 amount. Therefore the petitioners are not entitled to get the reliefs claimed. The Writ Petitions are accordingly dismissed.

The respondents are permitted to take necessary action for enforcement of the demand for payment of the additional amount in the respective demand notices at the earliest. If such payments are defaulted, the respondents shall take effective steps for ensuring the payment, including immediate cancellation of the contracts and re-tender of the Kuthaka items.

Sd/- ANIL K. NARENDRAN, JUDGE Sd/-

P.G. AJITHKUMAR, JUDGE dkr

31 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 APPENDIX OF W.P.(C) 14177/2022 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE E-TENDER NOTIFICATION FOR THE SAME PUBLISHED IN THE WEBSITE HTTP/ ETENDERS KERALA GOV.IN.

EXHIBIT P2 TRUE COPY OF THE TDB CHALLAN DATED 31.03.2022 IN THE DHANLAXMI BANK LTD, PATHANAMTHITTA

BRANCH

FOR

RS.

22.58.320/- OF THE AUCTION AMOUNT INCLUDING GST.

EXHIBIT P3 TRUE COPY OF THE TDB CHALLAN DATED 31.03.2022 IN THE DHANLAXMI BANK LTD, PATHANAMTHITTA BRANCH FOR EMD AMOUNT OF RS. 7.50,000/- ON 30.03.2022.

EXHIBIT P4 TRUE COPY OF THE RECEIPT DATED 31.03.2022 FOR THE EXHIBIT P2 AMOUNT ISSUED BY 4TH RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE RECEIPT DATED 31.03.2022 FOR THE EXHIBIT P3 AMOUNT ISSUED BY 4TH RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE NOTICE DATED 06.04.2022 RECEIVED BY PETITIONER FROM THE 4TH RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE REPLY DATED 12.04.2022 SENT BY PETITIONER TO EXHIBIT P6 NOTICE.

EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 12.04.2022 ALONG WITH POSTAL RECEIPT TO THE BOARD SUBMITTED BY PETITIONER THROUGH THE 2ND RESPONDENT.

32 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 EXHIBIT P9 TRUE COPY OF THE ROC NO. 21902/21/NS-2 DATED 17.03.2022 ISSUED BY 3RD RESPONDENT.

EXHIBIT P10 TRUE COPY OF THE ROC 21902/21/NS-2 DATED 25.03.2022 ISSUED BY 3RD RESPONDENT.

EXHIBIT P11 TRUE COPY OF THE ROC NO. 21902/21/NS/2 DATED 04.04.2022 ISSUED BY 3RD RESPONDENT.

33 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 APPENDIX OF WP(C) 14184/2022 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE E-TENDER NOTIFICATION FOR THE SAME PUBLISHED IN THE WEBSITE HTTO./ETENDERS, KERALA.GOV.IN.

EXHIBIT P2 TRUE COPY OF THE TDB CHALLAN DATED 31/03/2022 IN THE DHANLAXMI BANK LTD., PATHANAMTHITTA BRANCH FOR REMITTING 1ST INSTALMENT OF RS.24,05,000/- OF THE AUCTION AMOUNT AND GST AMOUNT OF RS.8,65,800/- AND THUS THE TOTAL AMOUNT OF RS.32,70,800/-.

EXHIBIT P3 TRUE COPY OF THE RECEIPT DATED 31/03/2022 FOR THE EXHIBIT P2 ISSUED BY 4TH RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 06/04/2022 RECEIVED BY PETITIONER FROM THE 4TH RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE REPLY DATED 11/04/2022 SENT BY PETITIONER TO EXHIBIT P4 NOTICE.

EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 11/04/2022 SENT BY PETITIONER TO THE BOARD THROUGH THE 2ND RESPONDENT ALONG WITH POSTAL RECEIPT.

EXHIBIT P7 TRUE COPY OF THE ROC NO.21902/21/NS-2 DATED 17/03/2022 ISSUED BY 3RD RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE ROC 21902/21/NS-2 DATED 25/03/2022 ISSUED BY 3RD RESPONDENT.

34 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 EXHIBIT P9 TRUE COPY OF THE ROC NO.21902/21/NS/2 DATED 04/04/2022 ISSUED BY 3RD RESPONDENT.

35 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 APPENDIX OF WP(C) 14185/2022 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE E-TENDER NOTIFICATION FOR THE SAME PUBLISHED IN THE WEBSITE HTTP/ ETENDERS, KERALA GOV.IN.

EXHIBIT P2 THE KOTTAYAM CO-OPERATIVE URBAN BANK LTD, 686 001. TDB CHALLAN DATED 31.3.2022 ISSUED TO THE PETITIONER FOR RS. 13,57,780/-.

EXHIBIT P3 TRUE COPY OF THE TDB CHALLAN DATED 31.3.2022 ISSUED TO THE PETITIONER FOR RS. 4,50,000/- EXHIBIT P4 TRUE COPY OF THE RECEIPT DATED 31.03.2022 FOR EXHIBIT P2 AMOUNT ISSUED BY 4TH RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE RECEIPT DATED 31.03.2022 FOR EXHIBIT P3 AMOUNT ISSUED BY 4TH RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE NOTICE DATED 06.04.2022 RECEIVED BY PETITIONER FROM THE 4TH RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE REPLY DATED 11.04.2022 SENT BY PETITIONER TO EXHIBIT P6 NOTICE.

EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 11.04.2022 ALONG WITH POSTAL RECEIPT TO THE BOARD SUBMITTED BY PETITIONER THROUGH THE 2ND RESPONDENT.

EXHIBIT P9 TRUE COPY OF THE ROC NO. 21902/21/NS-2 DATED 17.03.2022 ISSUED BY 3RD RESPONDENT.

36 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 EXHIBIT P10 TRUE COPY OF THE ROC 21902/21/NS-2 DATED 25.03.2022 ISSUED BY 3RD RESPONDENT.

EXHIBIT P11 TRUE COPY OF THE ROC NO.21902/21/NS/2 DATED 04.04.2022 ISSUED BY 3RD RESPONDENT.

37 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 APPENDIX OF WP(C) 14615/2022 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE E-TENDER NOTIFICATION PUBLISHED IN THE WEBSITE HTTP:/TENDERS . KERALA.GOVT.IN.

EXHIBIT P2 TRUE COPY OF THE RECEIPT FOR THE PAYMENT OF 1ST INSTALMENT OF RS.34, 55,000/-WHICH IS THE 50% OF THE AUCTION AMOUNT DATED 30.03.2022.

EXHIBIT P3 TRUE COPY OF THE RECEIPT FOR THE PAYMENT

GST

AMOUNT

OF RS.12,43,800/- DATED 30.03.2022.

EXHIBIT P4 TRUE COPY OF THE UNDATED NOTICE RECEIVED BY PETITIONER FROM THE 4TH RESPONDENT ON 21.04.2022.

EXHIBIT P5 TRUE COPY OF THE REPLY DATED 23.04.2022 SENT BY PETITIONER TO EXHIBIT-P4 NOTICE EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 23.04.2022 SENT BY PETITIONER TO THE BOARD THROUGH THE 2ND RESPONDENT EXHIBIT P7 TRUE COPY OF THE ROC NO.21902/21/NS-2 DATED 17.03.2022 ISSUED BY 3RD RESPONDENT EXHIBIT P8 TRUE COPY OF THE ROC 21902/21/NS-2 DATED 25.03.2022 ISSUED BY 3RD RESPONDENT.

EXHIBIT P9 TRUE COPY OF THE ROC NO.21902/21/NS/2 DATED 04.04.2022 ISSUED BY THE 3RD RESPONDENT.

38 W.P.(C) Nos.14177, 14184, 14185 and 14615 of 2022 EXHIBIT P10 TRUE COPY OF THE ORDER DATED 19.04.2022 IN W.P(C)NO.14177 OF 2022.