Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 18TH DAY OF NOVEMBER 2022 / 27TH KARTHIKA, 1944 W.P.(C) NO. 22230 OF 2021 PETITIONER:
S.R. RAJAN, AGED 64 YEARS, S/O.RAGHAVAN, MANAYIL HOUSE, IRIANGAPPURAM, PUTHANPALI, CHAVAKKAD TALUK, THRISSUR DISTRICT.
BY ADV RAJIT RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, SECRETARIAT, THIRUVANANTHAPURAM - 685001.
2 GURUVAYOOR DEVASWOM MANAGING COMMITTEE GURUVAYUR CHAVAKKAD THALUK, THRISSUR DISTRICT - 680101, REPRESENTED BY THE ADMINISTRATOR.
3 THE ADMINISTRATOR GURUVAYOOR DEVASWOM MANAGING COMMITTEE, GURUVAYUR, CHAVAKKAD TALUK, THRISSUR DISTRICT - 680101.
4 COMMISSIONER GURUVAYOOR DEVASWOM, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.
R1 & R4 BY SRI S.RAJMOHAN- SR GOVERNMENT PLEADER R2 & R3 BY ADV T.K.VIPINDAS, SC FOR GURUVAYOOR DEVASWOM MANAGING COMMITTEE
2 W.P.(C) No.22230 of 2021 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 18.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
3 W.P.(C) No.22230 of 2021 JUDGMENT Anil K. Narendran, J.
The petitioner, who is the second highest bidder to conduct the 'coconut counter' for selling as offering to the Ganapathi Temple annexed to Sree Krishna Temple, Guruvayoor, for the period from 01.11.2019 to 31.10.2020, has filed this Writ Petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents to immediately refund the proportionate amount deposited by him for the tender in question, for the period during which he was unable to conduct coconut counter. Going by the averments in the Writ Petition, the petitioner was the successful bidder for the said item for an amount of Rs.78,00,000/-. He remitted a total amount of Rs.92,82,000/-, which includes GST of Rs.14,04,000/- and Rs.78,000/- as cess. He had entered into Ext.P1 agreement with the 2nd respondent-Guruvayoor Devaswom Managing Committee for the period from 01.11.2019 to 31.10.2020. The coconut counter was opened on 01.11.2019. On the spreading of Covid-19 pandemic, the
4 W.P.(C) No.22230 of 2021 Central Government declared a nation-wise lockdown in March 2020. On 10.03.2020, the 2nd respondent issued a circular prohibiting Darshan in Sree Krishna Temple, Guruvayoor. The entire Temple premises was ordered to be closed for devotees. Therefore the petitioner has to close down the coconut counter. He submitted Ext.P2 representation dated 13.04.2020 before the 2nd respondent, through the 3rd respondent Administrator, with a request for extension of the period of tender by three months. However, no action was taken on that representation. According to the petitioner, the item coconut is exempted from GST. However, he was required to pay an amount of Rs.14,00,000/- towards GST and Rs.78,000/- towards cess. The petitioner is entitled for full refund of the said amount. In support of the said claim, the petitioner would place reliance on Ext.P3 Chit of the Chief Finance and Accounts Officer of the 2nd respondent dated 06.07.2020. According to the petitioner, in view of Ext.P3, the 2nd respondent has taken a decision to refund the amount collected from him towards 18% GST, if the same has not already been remitted to the State Government. Based on
5 W.P.(C) No.22230 of 2021 Ext.P2 request, the 2nd respondent took a decision on 21.10.2020, whereby it was decided that on account of the situation prevailing in the State due to Covid-19 pandemic, the coconut counter cannot be reopened. The petitioner submitted Ext.P6 representation dated 19.10.2020 before the Chairman of the 2nd respondent, which was followed by Ext.P7 representation dated 29.10.2020. Thereafter, the 2nd respondent has taken Ext.P8 decision on 24.11.2020 to refund proportionate amount of tender amount to the petitioner. The 3rd respondent Administrator issued Ext.P9 letter dated 12.02.2021 before the 4th respondent Commissioner. Ext.P9 was followed by Ext.P10 reminder dated 18.06.2021. Since no action was taken, the petitioner submitted Ext.P11 representation dated 16.08.2021 before the 3rd respondent, and thereafter, moved this Writ Petition before this Court seeking a writ of mandamus commending the respondents to immediately refund the proportionate amount deposited by him for the tender in question for the period during which he was unable to conduct coconut counter.
6 W.P.(C) No.22230 of 2021 2.
On 03.03.2022, when this Writ Petition came up for admission, the learned Standing Counsel for Guruvayoor Devaswom Managing Committee sought time to get instructions.
3.
Respondents 2 and 3 have filed a counter affidavit dated 05.01.2022 opposing the reliefs sought in this Writ Petition. Paragraphs 4 to 9 of that counter affidavit read thus;
“4. The actual facts and sequence of events which lead to the present Writ Petition (Civil) is deliberately suppressed and mislead by the petitioner and hence the actual facts are detailed herewith. It is submitted that the above Writ Petition pertains to the tender for the conduct of the coconut counter at the eastern nada of Guruvayur Temple. The petitioner was awarded the tender to conduct of the coconut counter at the eastern nada of Guruvayur Temple from 01.11.2019 to 30.10.2020. The petitioner had remitted the amounts stipulated in the tender for the said period. On account of the outbreak of Covid 19 pandemic, nation vide Lockdown was declared in March, 2020 and that the GST consultant of this respondent had intimated that GST is not applicable for coconut and that the petitioner submitted an application to return the amount collected as GST. The aforesaid application was considered by the GDMC and Exhibit P4 resolution was passed. On account
7 W.P.(C) No.22230 of 2021 of the fact that the contract period was being over by 31.10.2020, an agenda came up for consideration as to the further course of proceedings to be adopted. The GDMC had taken Exhibit P5 resolution stating that further actions are not temporarily necessary. On 20.11.2020, the petitioner had submitted an application requesting to refund the proportionate amount on account of the closure of the coconut counter due to the covid pandemic. A true copy of the application submitted by the petitioner dated 20.11.2020 is produced herewith and marked as Exhibit R2(a).
5. Exhibit R2(a) application was evaluated by the GDMC and that the P8 resolution was passed, whereby it was decided to refund the proportionate amount subject to the approval of the 4th respondent. Based on the same, Exhibit P9 letter was submitted to the 4th respondent, for according sanction to refund the proportionate amount to the petitioner. Since there was no reply, going by the office procedure adopted, Exhibit P10 reminder was also send in this regard.
6. Subsequent to the filing of this Writ Petition, it was brought to the notice of these respondents that the course adopted was contrary to the law laid down by this Hon'ble Court in 2021 KHC 130 (Harikumar G. v.
Travancore Devaswom Board, Thiruvananthapuram & others). Accordingly, the matter was reconsidered by the GDMC in its meeting held 17.12.2021 and that it was resolved to cancel the decision to refund the
8 W.P.(C) No.22230 of 2021 amount vide Resolution No:17 dated 17.12.2021. A true copy of the Resolution No:17 dated 17.12.2021 is produced herewith and marked as Exhibit R2(b).
7. By virtue of Exhibit R2(b), the GDMC has cancelled the resolution to refund the amount as per Exhibit P8 resolution and in accordance with Exhibit R2(b), no amount is due to be paid by these respondents. In this context it is further submitted that after the completion of the tender period, interest free security deposit, retained by this respondent was returned to the petitioner. Exhibit R2(b) was intimated to the 4th respondent. Thus no action is required to be taken by the 4th respondent on the basis of Exhibits P9 and P10.
8. The averments made in paragraphs 1 to 17 of the Writ Petition (Civil) which is contrary to the actual facts stated above is totally incorrect and hence denied.
9. The averments made in Grounds A to G of the Writ Petition (Civil) which is contrary to the actual facts stated above is totally incorrect and hence denied. None of the grounds raised is sustainable in view of the law laid down by this Hon'ble Court in 2021 KHC 130 (Harikumar G. v. Travancore Devaswom Board, Thiruvananthapuram & others) and 2021 (6) KHC 793.” 4.
The petitioner filed I.A.No.1 of 2022 seeking an order to amend the Writ Petition for incorporating additional statement of facts, grounds and reliefs, in order to challenge Ext.R2(b) decision taken by the 2nd respondent. That
9 W.P.(C) No.22230 of 2021 application was allowed by order dated 07.02.2022 and the petitioner has also filed an amended Writ Petition.
5.
Heard the learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1 and 4, and also the learned Standing Counsel for Guruvayoor Devaswom Managing Committee for respondents 2 and 3.
6.
During the course of arguments, on the query made by this Court, the learned Standing Counsel for Guruvayoor Devaswom Managing Committee would submit that Ext.R2(b) decision is one issued without notice to the petitioner. The learned Standing Counsel would point out that the petitioner has filed this Writ Petition even before Ext.P8 decision taken by the 2nd respondent was approved by the 4th respondent Commissioner. The learned Standing Counsel would also point out that Ext.P4 decision regarding liability for payment of GST paid and the opinion of the GST Consultant are also not approved by the Commissioner. The learned Standing Counsel for Guruvayoor Devaswom Managing Committee would point out the decision of this Court in Suneesh K.S. v. Travancore Devaswom Board and others [ILR 2022 (1) Ker.1091].
10 W.P.(C) No.22230 of 2021 7.
The learned counsel for the petitioner would contend that the decision of Division Bench of this Court in Harikumar G. v. Travancore Devaswom Board [ILR 2021 (1) Ker.1050] is on an entirely different factual matrix, which could not be brought to the notice of the 2nd respondent, since Ext.R2(a) decision is one taken without notice to the petitioner.
8.
Having considered the submissions made by the learned counsel on both sides, we find that the legal and factual contentions raised by the petitioner and also that raised by respondents 2 and 3 need not be gone into in these proceedings, since Ext.R2(b) decision taken by the 2nd respondent is the one without notice to the petitioner. When the said fact is not in dispute, the said order is liable to be set aside, on that sole ground.
9.
In such circumstances, this Writ Petition is disposed of setting aside Ext.R2(b) order dated 17.12.2021 of the 2nd respondent, since it is one issued in violation of the principles of natural justice and by directing the said respondent to re- consider the entire issue, including liability of the petitioner to
11 W.P.(C) No.22230 of 2021 pay GST and cess, after affording the petitioner an opportunity of being heard. It would be open to the petitioner to submit written submission before the 2nd respondent, raising legal and factual contentions, which shall be dealt with appropriately by the said respondent. The 2nd respondent shall pass a reasoned order and the decision by the 2nd respondent shall be placed before the 4th respondent Commissioner for approval, as per the mandatory requirements under Section 10 of the Guruvayoor Devaswom Act, 1978, as expeditiously as possible, at any rate, within a period of two months from the date of production of a certified copy of this judgment.
Sd/- ANIL K. NARENDRAN, JUDGE Sd/- P.G. AJITHKUMAR, JUDGE dkr
12 W.P.(C) No.22230 of 2021 APPENDIX OF WP(C) 22230/2021 PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE TENDER AGREEMENT BETWEEN THE PETITIONER AND THE GURUVAYUR DEVASWOM ADMINISTRATOR FOR THE YEAR 2019-2020 DATED 22.11.2019.
EXHIBIT P2 A TRUE COPY OF THE REPRESENTATION MADE BY THE PETITIONER DATED 13.04.2020.
EXHIBIT P3 A TRUE COPY OF THE LETTER NO. F10- 13196/2019 ISSUED BY THE CHIEF FINANCE AND ACCOUNTS OFFICER OF GURUVAYUR DEVASWOM DATED 06.07.2020.
EXHIBIT P4 A TRUE COPY OF THE DECISION NO.32 OF GURUVAYOOR DEVASWOM DATED 29.07.2020.
EXHIBIT P5 A TRUE COPY OF THE DECISION NO. 23 OF GURUVAYOOR DEVASWOM DATED 21.10.2020.
EXHIBIT P6 A TRUE COPY OF THE REPRESENTATION MADE BY THE PETITIONER BEFORE THE GURUVAYOOR DEVASWOM DATED 19.10.2020.
EXHIBIT P7 A TRUE COPY OF THE REPRESENTATION MADE BY THE PETITIONER BEFO0RE THE GURUVAYOOR DEVASWOM DATED 29.10.2020.
EXHIBIT P8 A TRUE COPY OF THE DECISION NO. 33 OF GURUVAYOOR DEVASWOM DATED 24.11.2020.
EXHIBIT P9 A TRUE COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT TO GURUVAYOOR DEVASWOM COMMISSIONER DT. 12.02.2021.
EXHIBIT P10 A TRUE COPY OF THE LETTER REMINDER DATED 18.06.2021 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT.
13 W.P.(C) No.22230 of 2021 EXHIBIT P11 A TRUE COPY OF THE REPRESENTATION MADE BY THE PETITIONER BEFORE THE GURUVAYOOR
DEVASWOM
ADMINISTRATOR DATED 16.08.2021.
PETITIONER EXHIBITS EXHIBIT R1(A) TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 20.11.2020.
EXHIBIT R1(B) TRUE COPY OF THE RESOLUTION NO.17 DATED 17.12.2021.