C.N.Unnikrishnan vs Guruvayur Devaswom Managing ...
2023 Latest Caselaw 6643 Ker

         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 20TH DAY OF JUNE 2023 / 30TH JYAISHTA, 1945
                 W.P.(C) NO. 15761 OF 2021
PETITIONER:

          C.N.UNNIKRISHNAN,
          AGED 56 YEARS, S/O NARAYANAN,
          CHOLAYIL VEEDU, PORKKULAM, PAZHANJI,
          THRISSUR DISTRICT - 680542.
          BY ADVS.
          RAJIT
          LEKSHMI P. NAIR

RESPONDENTS:

    1     GURUVAYUR DEVASWOM MANAGING COMMITTEE
          GURUVAYOOR, CHAVAKKAD TALUK, THRISSUR DISTRICT-
          680 101, REPRESENTED BY THE ADMINISTRATOR.
    2     THE ADMINISTRATOR
          GURUVAYOOR DEVASWOM MANAGING COMMITTEE,
          GURUVAYOOR, CHVAKKAD TALUK, THRISSUR DISTRICT-
          680101.
    3     THE CHAIRMAN
          GURUVAYOOR DEVASWOM MANAGING COMMITTEE,
          GURUVAYUR, CHAVAKKAD TALUK, THRISSUR DISTRICT-
          680 101.
          BY ADV T.K.VIPINDAS, SC, GURUVAYUR DEVASWOM
          MANAGING COMMITTEE


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL
HEARING ON 20.06.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
                                     2
W.P.(C) No.15761 of 2021


                               JUDGMENT

P.G. Ajithkumar, J.

The petitioner is the contractor for the conduct of "Pay &

Use Comfort Station and Shops & Parking Lot" at South Nada

of Sree Krishna Temple, Guruvayur for the period from

01.10.2019 to 30.09.2020. The tender price was

Rs.26,17,778/-. An agreement in that regard was executed by

the petitioner with the Guruvayur Devaswom Managing

Committee on 28.09.2019. The petitioner was performing the

aforesaid contract. While so, COVID-19 pandemic spread out

and the Temple was closed down for a long period. The

devotees were not coming to the Temple and in such

circumstances, the petitioner requested on 24.08.2020 to the

2nd respondent to extend the period of contract for a period of

six months. The petitioner further requested the 2 nd

respondent o waive the payment for the extended period,

considering the loss he had sustained. The respondent

accordingly extended the period for a period of six months

from 01.10.2020. Later, taking into account continuation of

the lockdown and the loss occasioned to the petitioner on

account of the same, he requested the respondent either to

W.P.(C) No.15761 of 2021

relieve him from the contract or to extend the period for a

further period of six months, waiving the fees payable to the

respondents. The 2nd respondent as per the letter dated

31.03.2021 the period of contract was extended for a further

period of six months from 01.04.2021. The petitioner was

informed that his request for waiving the fees was under

deliberation. However, the petitioner was later informed that

he should make the payment for the extended period in

proportion to the tender amount for the period from

01.10.2019 to 30.09.2020. Ext.P6 is the letter dated

30.06.2021 in that regard. The petitioner, aggrieved by the

same, has filed this Writ Petition under Article 226 of the

Constitution of India, seeking the following reliefs;

"i) To issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent to refund 50% of the amount deposited by the petitioner in respect of the tender for 'Pay & Use Comfort Station', Shop and Parking lot, at the North Nada of the renowned Guruvayoor Sri Krishna Temple

ii) Declare that the respondents are eligible to collect the proportionate amount in respect of the tender for 'Pay & Use Comfort Station', Shop and Parking lot, at the North Nada of the renowned Guruvayoor Sri Krishna Temple, only for the period the temple was opened and functioning normally."

W.P.(C) No.15761 of 2021

2. The respondents have filed a counter-affidavit,

wherein the contentions of the petitioner are refuted. It is

further contended that the dispute involved in this Writ

Petition is not liable to be entertained since the parties had

agreed to as per the agreement dated 28.09.2019 that the

dispute, if any, between them in regard to the contract in

question shall be subject to the jurisdiction of the courts

coming under the local area of the District Court, Thrissur.

3. Heard the learned counsel appearing for the

petitioner and the learned Standing Counsel for the Guruvayur

Devaswom Managing Committee, for the respondents.

4. In terms of the order of this Court the learned

Standing Counsel for the respondents made available for our

perusal the files relating to the contract in question. The

learned counsel appearing for the petitioner was also

permitted to peruse the said file. The learned Standing

Counsel for the Guruvayur Devaswom Managing Committee

would point out that when the agreement entered into

between the parties in respect of the contract in question

contains a clause that the disputes relating to the contract

shall be agitated before the courts within the local area of

W.P.(C) No.15761 of 2021

the District Court, Thrissur, the petitioner is not entitled to

invoke the extraordinary jurisdiction of this Court under

Article 226 of the Constitution of India. The petitioner does

not dispute that the agreement he had executed contains

such a clause.

5. In Commissioner of Income Tax v. Chhabil

Dass Agarwal [(2014) 1 SCC 603] the Apex Court held

that non-entertainment of a writ petition under Article 226 of

the Constitution of India when an efficacious alternative

remedy is available is a rule and self-imposed limitation. It is

essentially a rule of policy, convenience and discretion rather

than a rule of law. Undoubtedly, it is within the discretion of

the High Court to grant relief under Article 226 of the

Constitution of India, despite the existence of alternative

remedy. However, High Court must not interfere if there is an

adequate efficacious alternative remedy available to the

petitioner and he has approached the High Court without

availing the same, unless he has made out an exceptional

case warranting such interference or there exists sufficient

ground to invoke the extraordinary jurisdiction under Article

226.

W.P.(C) No.15761 of 2021

6. In Authorised Officer, State Bank of

Travancore v. Mathew K.C. [(2018) 3 SCC 85] the Apex

Court reiterated that the discretionary jurisdiction under

Article 226 of the Constitution of India is not absolute but has

to be exercised judiciously in the given facts of a case and in

accordance with law. The normal rule is that a writ petition

under Article 226 of the Constitution of India ought not to be

entertained if alternative statutory remedies are available,

except in cases falling within the well-defined exceptions as

observed in Chaabil Dass Agarwal, i.e., where the statutory

authority has not acted in accordance with the provisions of

the enactment in question or in defiance of the fundamental

principles of judicial procedure or has resorted to invoke the

provisions which are repealed, or when an order has been

passed in total violation of the principles of natural justice.

After referring to the law laid down in Thansingh Nathmal v.

Superintendent of Taxes [AIR 1964 SC 1419] and

Titaghur Paper Mills Company Ltd. v. State of Orissa

[(1983) 2 SCC 433] the Apex Court held that High Court will

not entertain a petition under Article 226 of the Constitution if

an effective alternative remedy is available to the aggrieved

W.P.(C) No.15761 of 2021

person or the statute under which the action complained of

contains a mechanism for redressal of grievance. Therefore,

when a statutory forum is created by law for redressal of

grievances, a writ petition should not be entertained ignoring

the statutory dispensation.

7. In Thansingh Nathmal a Constitution Bench of the

Apex Court held that the jurisdiction of the High Court under

Article 226 of the Constitution is couched in wide terms and the

exercise thereof is not subject to any restrictions except the

territorial restrictions which are expressly provided in the Article.

But the exercise of the jurisdiction is discretionary: it is not

exercised merely because it is lawful to do so. The very

amplitude of the jurisdiction demands that it will ordinarily be

exercised subject to certain self-imposed limitations. Resort to

that jurisdiction is not intended as an alternative remedy for

relief which may be obtained in a suit or other mode prescribed

by statute. Ordinarily, the Court will not entertain a petition for a

writ under Article 226, where the petitioner has an alternative

remedy, which without being unduly onerous, provides an equally

efficacious remedy. Again the High Court does not generally

enter upon a determination of questions which demand an

W.P.(C) No.15761 of 2021

elaborate examination of evidence to establish the right to

enforce for which the writ is claimed. The High Court does not,

therefore, act as a Court of appeal against the decision of a Court

or tribunal, to correct errors of fact, and does not by assuming

jurisdiction under Article 226 trench upon an alternative remedy

provided by statute for obtaining relief. Where it is open to the

aggrieved petitioner to move another tribunal or even itself in

another jurisdiction for obtaining redress in the manner provided

by a statute, the High Court normally will not permit by

entertaining a petition under Article 226 of the Constitution the

machinery created under the statute to be bypassed and will

leave the party applying to it to seek resort to the machinery so

set up.

8. In Balkrishna Ram v. Union of India [(2020) 2

SCC 442] one of the issues raised before the Apex Court was

whether an appeal against an order of a single judge of a High

Court deciding a case related to an Armed Forces personnel

pending before the High Court is required to be transferred to

the Armed Forces Tribunal or should be heard by the High

Court. The Apex Court held that sub-section (1) of Section 14

of the Armed Forces Tribunal Act, 2007 clearly provides that

W.P.(C) No.15761 of 2021

the Armed Forces Tribunal will exercise powers of all Courts

except the Supreme Court or High Court exercising

jurisdiction under Article 226 and Article 227 of the

Constitution of India. Section 34 is very carefully worded. It

states that 'every suit', or 'other proceedings' pending before

any Court including a High Court immediately before the

establishment of the Tribunal shall stand transferred on that

day to the Tribunal. The Legislature has clearly not vested the

Armed Forces Tribunal with the power and jurisdiction of the

High Court to be exercised under Article 226 of the

Constitution. There can be no manner of doubt that the High

Court can exercise its writ jurisdiction even in respect of

orders passed by the Armed Forces Tribunal. Since an appeal

lies to the Supreme Court against an order of the Armed

Forces Tribunal, the High Court may not exercise their

extraordinary writ jurisdiction because there is an efficacious

alternative remedy available but that does not mean that the

jurisdiction of the High Court is taken away. In a given

circumstance, the High Court may and can exercise its

extraordinary writ jurisdiction even against the orders of the

High Court [sic: Armed Forces Tribunal].

W.P.(C) No.15761 of 2021

9. In Balkrishna Ram the Apex Court held that the

principle that the High Court should not exercise its

extraordinary writ jurisdiction when an efficacious alternative

remedy is available, is a rule of prudence and not a rule of law.

The Writ Courts normally refrain from exercising their

extraordinary power if the petitioner has an alternative

efficacious remedy. The existence of such remedy however does

not mean that the jurisdiction of the High Court is ousted. At

the same time, it is a well settled principle that such jurisdiction

should not be exercised when there is an alternative remedy

available - Union of India v. T.R. Varma [AIR 1957 SC

882]. The rule of alternative remedy is a rule of discretion and

not a rule of jurisdiction. Merely because the Court may not

exercise its discretion, is not a ground to hold that it has no

jurisdiction. There may be cases where the High Court would be

justified in exercising its writ jurisdiction because of some

glaring illegality committed by the Armed Forces Tribunal. One

must also remember that the alternative remedy must be

efficacious and in case of a Non-Commissioned Officer (NCO),

or a Junior Commissioned Officer (JCO); to expect such a

person to approach the Supreme Court in every case may not

W.P.(C) No.15761 of 2021

be justified. It is extremely difficult and beyond the monetary

reach of an ordinary litigant to approach the Supreme Court.

Therefore, it will be for the High Court to decide in the peculiar

facts and circumstances of each case whether it should exercise

its extraordinary writ jurisdiction or not. There cannot be a

blanket ban on the exercise of such jurisdiction because that

would effectively mean that the Writ Court is denuded of its

jurisdiction to entertain such writ petitions which is not the law

laid down in L. Chandra Kumar v. Union of India [(1997) 3

SCC 262].

10. Here, the dispute between the parties is purely of

civil in nature. It pertains to the contractual obligation that

flows from the agreement dated 28.09.2019. The parties

mutually agreed about the forum for resolution of the dispute

as well. Therefore, the petitioner can well avail the recourse

as provided in the agreement for redressal of his grievance.

This Writ Petition, therefore, is not maintainable and it is

accordingly dismissed as not maintainable, however, leaving

open all legal and factual questions involved in the matter and

also without prejudice to the right of the petitioner to avail the

remedy as provided in the said agreement.

W.P.(C) No.15761 of 2021

The Registrar (Judicial) to return the files kept in the

safe custody to the learned Standing Counsel for the

Guruvayur Devaswom Managing Committee.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE dkr

W.P.(C) No.15761 of 2021

APPENDIX OF WP(C) 15761/2021

PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE REPRESENTATION DATED 24.08.2020 EXHIBIT P2 A TRUE COPY OF THE LETTER DATED 24.10.2020 OF THE 2ND RESPONDENT EXHIBIT P3 A TRUE COPY OF THE REPRESENTATION DATED 05.11.2020 EXHIBIT P4 A TRUE COPY OF THE ABOVE REPRESENTATION DATED 23.03.2021 EXHIBIT P5 A TRUE COPY OF THE LETTER OF THE 2ND RESPONDENT DATED 31.03.2021 EXHIBIT P6 A TRUE COPY OF THE LETTER DATED 30.06.2021 OF THE 2ND RESPONDENT RESPONDENT EXHIBITS EXHIBIT R1(A) TRUE COPY OF THE RESOLUTON OF THE GURUVAYOOR DEVASWOM MANAGING COMMITTEE DATED 09.10.2020.

EXHIBIT R1(B) TRUE COPY OF THE RESOLUTION NO.28 DATED 26.04.2021.