Kerala High Court
Brothers Industries vs Travancore Devaswom Board on 14 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE K.HARIPAL
THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942
WP(C).No.26217 OF 2020(B)
PETITIONER/S:
BROTHERS INDUSTRIES,
REPRESENTED BY ITS MANAGING PARTNER, BHASKARAK K.,
PUTHIYAVILA, VELANCHIRA, KAYAMKULAM, ALLEPPEY DISTRICT-
690 531.
BY ADVS.
SMT.V.P.SEEMANDINI (SR.)
SMT.V.BHARGAVI (PANANGAD)
SMT.P.A.RINUSA
SRI.M.R.ANISON
RESPONDENT/S:
1 TRAVANCORE DEVASWOM BOARD,
REPRESENTED BY ITS SECRETARY, OFFICE OF THE TRAVANCORE
DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM-695
033.
2 THE DEVASWOM COMMISSIONER
TRAVANCORE DEVASWOM BOARD, OFFICE OF THE TRAVANCORE
DEVASWOM BOARD, NANTHANCODE,THIRUVANANTHAPURAM-695 033.
3 THE EXECUTIVE OFFICER
SABARIMALA DEVASWOM, PAMPA, THRIVENI P.O.,
PATHANAMTHITTA-689 662.
BY SRI.G BIJU, SC, TDB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-11-
2020, THE COURT ON 14-01-2021 DELIVERED THE FOLLOWING:
W.P.(C) No.26217/2020 2
JUDGMENT
Haripal, J.
This is a writ petition filed under Article 226 of the Constitution of
India.
2. The petitioner claims to be a partnership firm engaged in the
business of procuring and processing coconut for the last three decades in
Sabarimala. From its experience, it is said that even though e-tenders were
floated for the purpose of allotting monopoly rights for various business
activities in Sabarimala during the festival season, for the last several years
such rights were never sold out in a single stretch; as a matter of fact, left
out items were auctioned by successive auctions; that such process would
continue even after the commencement of the festival season. This time
also, pursuant to Ext.P1 notification, out of 216 items only one item was
sold out in the first auction; in the second auction, only two items were sold
out, which necessitated publication of the third auction notice. The third
auction notification was published in the website on 10.11.2020 following
which public auction was conducted on 12.11.2020. There also responses
were poor. Thereafter, on 12.11.2020, instead of ordering re-e-tender, in
the evening itself tenderers were allowed to submit their rates and they
were allowed to quote at unimaginably low rates viz., 2-3% of the tender
value by waiving 97-98%. Moreover, in this tender, persons were not
insisted to deposit Earnest Money Deposit; EMD rate was considerably cut
down; auction amounts were abysmally low. He has produced a
comparative chart in Ground-A of the writ petition, which shows that
against the approximate auction amount of Rs.5 crores last year, the tender
value this year was only Rs.1,00,05,000/-. In other words, almost all the
tenders were confirmed at 2-3% of the tender value at a huge loss of 97-
98%. Everything was done arbitrarily and illegally. Re-tender was
conducted at short notice without giving sufficient opportunity to the
tenderers. All the tenders submitted on 12.11.2020 were accepted,
suffering 97-98% loss, creating utter confusion in the minds of the persons
who had participated in the public auction. Normal practice of collecting
50% of the tender amount was done away with. There was also instance in
which a person in whose favour tender was confirmed had backed out; still
entire Earnest Money Deposit was released to him. So the petitioner has
approached this Court seeking the following reliefs:-
"i. to issue a writ of mandamus or other appropriate writ,
order or direction, directing the respondents to re-tender all
the items, for allotment of monopoly at Sabarimala for the
period from 01.11.2020 to 30.10.2021, by giving wide
publicity, and to finalise all tenders, by giving sufficient
time to the public (at least one week time in between last
date of submission and finalization of tenders);
ii. to declare as invalid the entire auction procedure
conducted by the respondents on 12.11.2020, for allotment
of monopoly all items at Sabarimala during the period from
01.11.2020 to 30.10.2021"
3. We heard Smt.V.P. Seemanthini, the learned senior counsel for
the petitioner as also Sri. G. Biju, the learned standing counsel for
Travancore Devaswom Board.
4. According to the learned senior counsel, everything was done
in most arbitrary manner contrary to usual way of doing things. If the
auction was conducted after giving wide publicity, the respondents would
have benefited and therefore, the learned senior counsel vehemently
pleaded for ordering re-tender and also to consider Exts.P11 and P12
representations.
5. On the other hand, the learned standing counsel opposed the
plea. According to him, even after publishing three consecutive
notifications, since responses were poor, the rights were auctioned out by
suffering huge loss because there was no other way out since the season
had to commence on 16.11.2020. According to the learned standing
counsel, in between, there were holidays for the Board due to Chithira
Attam, Deepavali and Sunday.
6. It is not disputed that for the festival season in Sabarimala in
1196 M.E., that is from 11.11.2020 to 31.10.2021, about 216 items for the
supply of goods and services were to be auctioned out; the first notification
was issued by way of publishing Ext.P1 notification dated 07.10.2020. The
response was very poor; petitioner says that only one item was auctioned
out pursuant to the said notification. Later, Ext.P2 re-e-tender notification
was issued on 27.10.2020 scheduling the opening date on 04.11.2020.
Then also the response was poor and that led to the issue of Ext.P3
notification dated 10.11.2020 fixing the last date for submitting quotations
on 12.11.2020. Then also the response was disappointing and that led to
the respondents to take steps to auction out the rights by inviting quotations
from the interested. According to the petitioner, quotations were submitted
offering unimaginably low rates of 2-3% of the tender value, suffering huge
loss of 97-98% by the respondents. According to the petitioner, if such a
procedure was adopted by giving wide publicity, the rights would have
been sold out at much higher amounts and thus the respondents are sought
to be directed to conduct re-tender.
7. We have no doubt that matters in the current year are not
comparable with the situation in yester years. Due to Covid-19 pandemic,
entry of devotees is limited. Last year, when there was unrestricted entry,
there used to be one lakh devotees a day, on an average, taking darshan at
the hill shrine; but due to the intervention of the Government and the
introduction of health protocol, this year the number of devotees had to be
restricted. Initially only 1000 devotees were allowed to enter the shrine a
day, which was later enhanced to 2000, that too imposing strict conditions.
Thereafter, only at the intervention of this Court, the number of devotees
was enhanced to 5000 on a day. In other words, at the time when tender
notifications were issued, there prevailed absolute uncertainty and
conventional traders were hesitant to submit any offer. That made the
respondents to issue successive re-notifications and even after making three
notifications, the responses were disappointing and that led them to take the
extreme step of inviting quotations by waiving the value of tenders.
8. As rightly pointed out by the learned standing counsel, the
urgency of the situation cannot be ignored by the court. The date of
opening of the third tender was 12.11.2020. Between 12.11.2020 and
16.11.2020, the date of opening the shrine, only few days were left and
some holidays also intervened and thus the respondents had no other option
but to invite quotations and sell out the kuthaka rights without loss of
further time. The petitioner and such other traders, who had not made use
of the earlier opportunities, cannot be heard to say that everything was done
in haste.
9. Secondly, the prayer for issue of mandamus is clearly out of
place. It is the settled proposition of law that a writ of mandamus does not
lie to create or establish a legal right, but to enforce a legal right that is
already established. The petitioner has no case that he has any such legal
right to be enforced. Moreover, it is an equitable right and is governed by
equitable principles. Promotion of substantial justice is the prime
consideration for issue of such a writ. [See the decision reported in The
Rajasthan State Industrial Development and Investment Corporation
& another. v. Diamond and Gem Development Corporation Ltd.
[(2013) 5 SCC 470]. It is also settled law that such a writ cannot be issued
based on sympathetic consideration and that there must be a legal right to
be enforced. The petitioner could not establish any such legal right in his
favour.
10. Moreover, many other writ petitions seeking identical reliefs
were rejected by this Court on the premise that such repeated notifications
were issued out of absolute necessity and ultimately quotations were
accepted since there was no taker in spite of making three attempts. There
is no reason why the same view should not be taken here also.
11. The petitioner is thus not entitled to get any relief and the writ
petition is liable to be dismissed. Dismissed in limine.
12. Some of the allegations in the writ petition are disheartening.
We do not propose to go further into the allegations. But it is for the
respondents to see that if any such unhealthy practices are in vogue, that
should be guarded against.
Sd/-
C.T.RAVIKUMAR
JUDGE
Sd/-
K.HARIPAL
JUDGE
okb/11.01.2021
//True copy// P.S. to Judge
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE RELEVANT PAGES OF
NOTIFICATION PUBLISHED BY THE RESPONDENT
INVITING E-TENDER BEARING NO.R.O.C.53/20/SAB.
DATED 7.10.2020.
EXHIBIT P2 A TRUE COPY OF THE SECOND E-TENDER
NOTIFICATION DATED 27.10.2020.
EXHIBIT P3 A TRUE COPY OF THE THIRD TENDER NOTIFICATION
10.11.2020.
EXHIBIT P4 A TRUE COPY OF THE TENDER NOTIFICATION BEARING
NO.R.O.C.53/20/SAB. DATED 11.11.2020.
EXHIBIT P5 A TRUE COPY OF THE GENERAL CONDITIONS BEARING
NO.R.O.C.53/20/SAB. DATED 11.1.2020.
EXHIBIT P6 A TRUE COPY OF THE CHALAN SHOWING PROPOSED
REMITTANCE OF 50% OF TENDER VALUE FOR ITEM
NO.1 DATED 12.11.2020.
EXHIBIT P7 A TRUE COPY OF THE CHALAN SHOWING PROPOSED
REMITTANCE OF 50% OF TENDER VALUE FOR ITEM
NO.2 DATED 12.11.2020.
EXHIBIT P8 A TRUE COPY OF THE CHALAN SHOWING PROPOSED
REMITTANCE OF 50% OF TENDER VALUE FOR ITEM
NO.81 DATED 12.11.2020.
EXHIBIT P10 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P11 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE PETITIONER BEFORE THE 3RDRESPONDENT.
EXHIBIT P12 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE PETITIONER BEFORE THE PRESIDENT OF
TRAVANCORE DEVASWOM BOARD.
