M.P. George vs Travancore Devaswom Board Rep. By Secretary

Muralee Krishna,J.

The appellant is the petitioner in W.P.(C)No.19489 of 2015. He filed the writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents to dispose of Ext.P3 representation dated 14.11.2009 submitted by him to refund the Earnest Money Deposit (‘EMD’ for short) of Rs.9,10,000/- with interest, which was deposited by him while obtaining the tender for collection of parking fee from vehicles proceeding to Sabarimala from the toll booths at Chalakayam, Elavunkal and Plappally, during the Sabarimala pilgrimage season of the year 2009 and a declaration that the inaction of the respondents in disposing of Ext.P3 is highly illegal and violative of the direction of this Court in Ext. P1 judgment dated 31.05.2013 passed in W.P.(C)No.18124 of 2012. As per the impugned judgment dated 30.07.2015, the learned Single Judge dismissed the writ petition for various reasons. Hence the appellant is now before this Court with the above writ appeal, filed under Section 5(i) of the Kerala High Court Act, 1958.

The facts that can be discernible from the records are as follows:

As per Ext.P2(a) tender notification dated 25.10.2010 and as per Ext.P2(b) re-tender notification dated 03.11.2009, the 1st respondent Travancore Devaswom Board invited tenders for parking fee collection from vehicles proceedings to Sabarimala at Chalakkayam, Elavunkal and Plappally toll booths, for the period from 10.11.2009 to 25.10.2010. As per the stipulation in Ext.P2(b), the minimum amount to be quoted by the eligible tenderer was Rs.1,75,00,000/-. Including the appellant, seven persons participated in the tender. The appellant had quoted Rs.1,77,44,447/- and produced a demand draft for Rs.10,000/-along with the tender. The amount quoted by the appellant was found as the highest and hence the 2nd respondent directed him to deposit a sum of Rs.9,00,000/-, being 5% of EMD for confirmation of the tender. Accordingly, the appellant remitted a sum of Rs.9,00,000/- by cash and thereby altogether deposited a sum of Rs.9,10,000/- as EMD.

2.1 But without confirming the tender, the respondents gave an opportunity to all the tenderers to make another bid. The appellant did not participate in the re-tender. One Binish quoted a sum of Rs.1,78,55,355/- in the re-tender. But said Binish later intimated the 2nd respondent that he was withdrawing from the tender. Since no amount above that quoted by the appellant was offered by any of the other persons, the respondents sent Ext.P4 telegram to the appellant informing that the tender was confirmed to him and demanding him to pay 50% of the bid amount. But, the appellant had already returned without an intention to proceed with the tender for the reason that the respondents neglected the finalised the tender and again gave the parties an opportunity to submit fresh quotations. Then he submitted Ext.P3 representation dated 14.11.2009 to the 2nd respondent requesting to release the EMD. Since the 2nd respondent did not return the EMD, the appellant filed W.P.(C) No.12471 of 2010 before this Court for refund of the EMD along with interest at the rate of 15% per annum from 07.11.2009 onwards. As per Ext.P5 judgment dated 21.03.2011 this Court directed the respondents to dispose of Ext.P3 representation within a period of three months from the date of receipt of a copy of the judgment.

2.2 As per Ext.P6 proceedings dated 10/2011 the 1st respondent disallowed Ext.P3 representation submitted by the appellant, stating that the audit report of the relevant period was placed before the Ombudsman with a specific remark on the essence of forfeiture. Since the issue was informed as under consideration of the Ombudsman, the appellant submitted Ext.P7 complaint No.19/2012 before the Ombudsman. But as per Ext.P8 order dated 24.02.2012 the learned Ombudsman closed the proceedings, observing that contentions raised by the appellant no longer subsist and also observing that the matter is pending before this Court. Thereafter, the appellant again filed W.P.(C)No. 18124 of 2012 before this Court and as per Ext.P1 judgment 31.05.2013, this Court directed the respondents to dispose of Ext.P3 representation, after hearing the appellant, within 4 months from the date of receipt of a copy of that judgment. After Ext.P1 judgment, the 1st respondent issued Ext.P10 letter dated 04.10.2013 to the appellant asking him to appear for a hearing on 09.10.2013 at 4.00 p.m. The appellant appeared before the President of the 1st respondent Board and the grievances of the appellant were heard by him. However, no order has been passed pursuant to Ext.P1 judgment. Therefore, the petitioner approached this Court by filing W.P.(C)No.19489 of 2015 which resulted in the impugned judgment.

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

The learned counsel for the appellant argued that though the tender submitted by the appellant was the highest, it was not accepted by the respondents and they gave another opportunity to the participants to make fresh quotes and thereby rejected the quotation of the appellant. The said fact is evident from Ext.P6 proceedings dated 10/2011 of the 1st respondent Travancore Devaswom Board wherein it is stated that it is deviating from tender regulations, the 2nd respondent Commissioner called for further quotations from all bidders and the appellant did not participate  in  the  second  bid.  As  per  Ext.P8  decision  dated 24.02.2012 the learned Ombudsman closed the proceedings finding that it is the 1st respondent Board has to take a decision regarding the return of EMD due to the appellant in view of the judgment of this Court in the writ petition. Even after hearing the appellant in pursuance to Ext.P10 notice issued by the 1st respondent on 09.10.2013, no order has been passed in Ext.P3 representation as directed by this Court in Ext.P5 judgment. The learned Single Judge failed to consider these aspects in its proper perspective which resulted in the impugned judgment and hence it is liable to be set aside.

On the other hand, the learned Standing Counsel for the respondents submitted that the appellant had to approach the civil Court for the remedy as early as in the year 2011 itself, in view of the observations made in Ext.P5 judgment of this Court. The Division Bench directed the 1st respondent to consider Ext.P3 representation only for the reason that the said representation submitted by the appellant was pending consideration. The claim of the appellant requires a detailed consideration by adducing evidence and such an exercise cannot be undertaken in a writ petition. It is considering all these aspects the learned Single Judge rightly dismissed the writ petition and hence no interference is needed to the impugned judgment.

The appellant along with certain other persons participated in the tender process for the collection of parking fees at three toll booths during Sabarimala pilgrimage season of the year 2009. He was the highest bidder and he had deposited the EMD of Rs.9,10,000/- for finalisation of the tender in his favour. However, according to him, the respondents unilaterally gave a second chance for the participants of the auction to submit fresh quotations and hence the appellant withdrew from the tender process. Though in the second auction another person quoted more amount than quoted by the appellant, he also did not proceed further. It is thereafter the 2nd respondent issued Ext.P10 invitation dated 04.10.2013 to the appellant asking him to proceed with the initial tender. Since he did not accept the work by paying the balance amount, the EMD was forfeited by the 1st respondent.

It is true that in Ext.P5 judgment this Court directed the 1st respondent to consider Ext.P3 representation dated 14.11.2009 submitted by the appellant for return of the EMD within a time frame stipulated therein. But, in that judgment itself the Division Bench held that it would not be appropriate for this Court to enter into a finding as to whether the appellant is entitled to get back the EMD or not. The Division Bench before directing the 1st respondent to consider Ext.P3 representation, made certain observations that are relevant as far as the claim of the appellant is concerned, which reads thus:

“4. The question whether there is breach of contract, in the light of the contentions mentioned earlier, is a question of fact. Ext.P1, which is only a tender notice, mentions that the conditions of the tender will be as per the prevalent rules in Travancore Devaswom Board and as per the notification No.ROC.1142/09/Sab dated 25.10.2009. The said notification is not produced. Therefore, what are those conditions is not known. The copy of the prevalent rules is also not produced. The question as to whether the termination of the tender process could commence on the 1st respondent giving opportunity for quoting higher amounts also would depend upon the terms and conditions of the tender notification. In the above circumstance, with the materials on record, we are not in a position to conclude whether the tender process was terminated or not. So also the question as to whether there is breach on the part of the petitioner and whether he is liable to forge the Earnest Money Deposit would depend upon the facts and circumstances which is to be decided in a civil suit after taking evidence. With the materials available on record, we are not in a position to decide the same. In the event, the petitioner had committed breach, the petitioner is not entitled to get refund of the Earnest Money.”

The learned counsel for the appellant, at this juncture, by relying on the judgment of a Division Bench of Rajasthan High Court in Satya Narain v. The State of Rajasthan [2003 SCC Online Raj 646] argued that the High Court under Article 226 of the Constitution of India can make appropriate orders to ensure that earlier directions made by it are complied with.

The materials on record would show that after Ext.P5 judgment, the 1st respondent Board passed Ext.P6 order, disallowing Ext.P3 representation for the reason that the matter was in consideration before the Ombudsman. Therefore, it cannot be said that the 1st respondent has not complied with the direction of this Court in Ext.P5 judgment. In Satya Narain [2003 SCC Online Raj 646], the Division Bench of the Rajasthan High Court held that in appropriate cases by exercising jurisdiction under Article 226 of the Constitution of India, the High Court can make appropriate orders in the nature of orders made in the execution proceedings to ensure that the earlier directions/orders made by it are complied with. But in this case, as said above, the 1st respondent Devaswom Board considered Ext.P3 representation submitted by the appellant and passed orders therein. Only for the reason that the 1st respondent did not decide Ext.P3 representation as wished by the appellant it cannot be said that his representation was not considered by the 1st respondent. Later, the Ombudsman also closed the proceedings for the reason that the matter is pending before this Court. It is true that as contended by the appellant, there was no matter pending before this Court at that time. However, it will make no difference as far as the decision of the Ombudsman is concerned, for the simple reason that Ombudsman is not the appropriate authority to decide the claim of the appellant as per the pleadings of the appellant himself.

In Sitco Associates v. State of Kerala [2023 (6) KHC SN 5] which is a writ petition filed under Article 226 of the Constitution of India by the person who obtained the tender for construction of a straight walkway including side drain and utility ducts along the trekking path of Chandranandan Road, for a length of 800 meters, in Sabarimala, seeking a writ of mandamus commanding the respondents therein to relieve him from the agreement and also claiming return of EMD deposited and security, this Court held thus:

“21. The law laid down by the Apex Court in Radhakrishna Agarwal v. State of Bihar [1977 (3) SCC 457], Premji Bhai Parmar v. Delhi Development Authority [1980 (2) SCC 129] and Divisional Forest Officer v. Bishwanath Tea Company Ltd. [1981 (3) SCC 238] is that, where the contract entered into between the State and the persons aggrieved is non - statutory and purely contractual and the rights are governed only by the terms of the contract, no writ or order can be issued under Art.226 of the Constitution of India so as to compel the authorities to remedy a breach of contract pure and simple.

In Bishwanath Tea Company Ltd. [1981 (3) SCC 238] the Apex Court considered the question of maintainability of a writ petition in respect of a claim arising out of the contractual rights and obligations flowing from the terms of a lease. The Apex Court held that, it is undoubtedly true that High Court can entertain in its extraordinary jurisdiction a petition to issue any of the prerogative writs for any other purpose. But such writ can be issued where there is executive action unsupported by law or even in respect of a corporation there is a denial of equality before law or equal protection of law. The Corporation can also file a writ petition for enforcement of a right under a statute. On the facts of the case on hand, the Apex Court noticed that Bishwanath Tea Company Ltd., the respondent company, was merely trying to enforce a contractual obligation. The obligation to pay royalty for timber cut and felled and removed is prescribed by the relevant regulations. The validity of regulations is not challenged. Therefore, the demand for royalty is unsupported by law. What the respondent claimed was an exception that in view of a certain term in the indenture of lease, i.e., clause 2, the appellant is not entitled to demand and collect royalty from the respondent. This is nothing but enforcement of a term of a contract of lease. Hence, the question was whether such contractual obligation can be enforced by the High Court in its writ jurisdiction. Ordinarily, where a breach of contract is complained of, a party complaining of such breach may sue for specific performance of the contract, if the contract is capable of being specifically performed, or the party may sue for damages. Such a suit would ordinarily be cognizable by the civil court. The High Court in its extraordinary jurisdiction would not entertain a petition either for specific performance of a contract or for recovering damages. A right to relief flowing from a contract has to be claimed in a civil court where a suit for specific performance of a contract or for damages could be filed.

The legal principles that can be culled out from the decisions referred to supra are that, in a case where the contract entered into between the State and the person aggrieved is of a non - statutory character and the relationship is governed purely in terms of a contract between the parties, the contractual obligations are matters of private law and a writ would not lie to enforce a civil liability arising purely out of a contract. The proper remedy in such cases would be to file a civil suit for claiming damages, injunctions or specific performance or such appropriate reliefs in a competent civil court. Pure contractual obligation in the absence of any statutory complexion would not be enforceable through a writ.”

From the observations made in Ext.P5 judgment by this Court, we noticed that the appellant was aware of the fact that his remedy to claim the EMD was before the competent Civil Court. But without approaching the proper authority, the appellant once again approached this Court probably for the reason that the limitation period for seeking recovery of money had expired by that time. In the impugned judgment, the learned Single Judge considered all these aspects and rightly dismissed the writ petition.

On re-appreciation of the pleadings and materials on record and hearing the submissions made at the Bar, we find no sufficient ground to interfere with the impugned judgment of the learned Single Judge. Therefore, the writ appeal is liable to be dismissed.

In the result, the writ appeal stands dismissed.