Kerala High Court
Sachin Ss vs *State Of Kerala on 5 November, 2024
Author: Anil K. Narendran
Bench: Anil K. Narendran
2024:KER:82573
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
TUESDAY, THE 5TH DAY OF NOVEMBER 2024/14TH KARTHIKA, 1946
WP(C) NO. 37305 OF 2024
PETITIONER:
SACHIN SS, AGED 24 YEARS
S/O SANTHOSH, RESIDING AT SANTHOSH BHAVAN,
KIZHUVILAM, KOONTHALOOR, PARAYATHUKONAM,
TRIVANDRUM, PIN - 695104
BY ADVS.
NAVANEETH.N.NATH
ABHIRAMI S.
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY, DEPARTMENT OF
DEVASWOM, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, KERALA, PIN-682 301 (THE
DESCRIPTION OF RESPONDENT 1 CORRECTED AS "STATE
OF KERALA, REPRESENTED BY THE SECRETARY,
REVENUE (DEVASWOM ) DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, KERALA, PIN-
695 001" AS PER ORDER DATED 29.10.2024 IN IA
NO.2/2024 IN WP(C) NO.37305/2024)
2 TRAVANCORE DEVASWOM BOARD,
REPRESENTED BY ITS SECRETARY, TRAVANCORE
DEVASWOM BOARD, DEVASWOM HEADQUARTERS,
THIRUVANANTHAPURAM, KERALA, PIN-695 001.
3 DEVASWOM COMMISSIONER
TRAVANCORE DEVASWOM BOARD OFFICE OF THE
COMMISSIONER, TRAVANCORE DEVASWOM BOARD,
DEVASWOM HEADQUARTERS, THIRUVANANTHAPURAM,
W.P.(C)No.37305 of 2024
2024:KER:82573
-2-
KERALA, PIN - 695001
4 ADDL.R4: SENIOR DEPUTY DIRECTOR,
STATE AUDIT DEPARTMENT, TRAVANCORE DEVASWOM
BOARD AUDIT, NANTHANCODE, THIRUVANANTHAPURAM,
PIN-695 003 (ADDL.R4 IS IMPLEADED AS PER ORDER
DATED 29.10.2024 IN IA NO.1/2024 IN WP(C)
NO.37305/2024)
BY ADV G.BIJU
OTHER PRESENT:
SRI. S. RAJMOHAN, SR. GP;
SRI. G. BIJU, SC, TDB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 05.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C)No.37305 of 2024
2024:KER:82573
-3-
JUDGMENT
Anil K. Narendran, J.
The petitioner, who submitted a bid pursuant to Ext.P1 e-
Tender notification dated 15.07.2024 issued by the 3rd respondent
Devaswom Commissioner, Travancore Devaswom Board, for supply
of 'Kettu Nara' articles for Sabarimala pilgrims at Pamba Devaswom
for the period from Vrischikam 1st 1200ME to Thulam 30th 1201ME,
has filed this writ petition under Article 226 of Constitution of India,
seeking a writ of certiorari to quash Ext.P6 communication dated
18.10.2024 issued by the 3rd respondent Devaswom Commissioner,
whereby the tender submitted by the petitioner stands rejected for
the reasons stated therein.
2. Going by the averments in the writ petition, the
petitioner submitted bid pursuant to Ext.P1 e-Tender notification,
as evident from Ext.P2 bid submission dated 29.07.2024. He
remitted an amount of Rs.25,000/- towards the Earnest Money
Deposit (EMD) and sum of Rs.1,500/- towards the tender fee, as
evident from Ext.P3 receipt dated 07.09.2024. The petitioner
quoted an amount of Rs.96/- per Kettu, which was the lowest
(L1). Two others have also participated in the tender process, who
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quoted amounts higher than that quoted by the petitioner. In the
tender process, there was a process of verification by the Vigilance
Wing of the Travancore Devaswom Board, headed by the
Chief Vigilance and Security Officer (Superintendent of Police). It
is after considering the report of the Vigilance Wing of the Board
that the 3rd respondent Devaswom Commissioner issued Ext.P6
communication dated 18.10.2024, whereby the bid submitted by
the petitioner stands rejected, though which was the lowest, for
the reasons stated therein.
3. On 24.10.2024, when this writ petition came up for
admission, the learned Standing Counsel for Travancore Devaswom
Board was directed to make available for the perusal of this Court
the files relating to the tender submitted by the petitioner.
4. By the order dated 29.10.2024 in I.A.Nos.1 and 2 of
2024, the description of the 1st respondent State was corrected and
the Senior Deputy Director, Kerala State Audit Department,
Travancore Devaswom Board Audit was impleaded as additional 4th
respondent.
5. Pursuant to the order of this Court dated 24.10.2024,
the files relating to the tender submitted by the petitioner were
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made available for the perusal of this Court, which contained a
detailed report dated 12.09.2014 of the Vigilance Sub Inspector,
addressed to the Chief Vigilance and Security Officer
(Superintendent of Police).
6. On 29.10.2024, the learned Standing Counsel for the
Travancore Devaswom Board pointed out the provisions contained
in Clause 12(e) of Chapter VI of the Travancore Devaswom Board
Manual, Volume II (Office Manual), which deals with supply of
articles, which provides that the Earnest Money Deposit (EMD)
should not be accepted from persons who have no properties at
all. On a query made by this Court, the learned counsel for the
petitioner submitted that the petitioner does not have any
immovable properties. The learned counsel sought time to get
instructions as to the bank balance of the petitioner, as on
29.10.2024, in the savings account maintained by the petitioner.
7. On 04.11.2024, during the course of arguments, the
learned counsel for the petitioner submitted that the bank balance
in the savings account maintained by the petitioner is only
Rs.1,000/-. However, the bank balance in the account maintained
by the firm - Surya Trading Company - referred to in Ext.P4
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communication dated 11.09.2024 of Dheera Trading Company, is
Rs.5,82,909/-. The learned counsel for the petitioner has made
available for the perusal of this Court a screenshot of the passbook
of the account maintained by the firm Surya Trading Company, as
per which the balance amount as on 02.10.2024, was only
Rs.2,955/-.
8. On 04.11.2024, the learned Standing Counsel for
Travancore Devaswom Board pointed out that Ext.P3 bid
submission of the petitioner is in his individual name and not as a
partner of Surya Trading Company. The learned Standing Counsel
pointed out the judgments of this Court in Sumesh Kumar v.
State of Kerala [2024 KHC OnLine 1171], Sunil Kumar P.G.
v. State of Kerala [2022 KER 71822], etc., in respect of the
tender process for Kuthaka items in Sabarimala Devaswom.
9. The learned Standing Counsel for the Travancore
Devaswom Board has placed on record a counter affidavit dated
05.11.2024 on behalf of the 2nd respondent. Paragraphs 4 to 7 of
that counter affidavit read thus;
"4. It is submitted that Exhibit-P1 e-tender notification was
published inviting tenders for the supply of kettu nira articles
required for the kettu nira of Sabarimala pilgrims for the
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period from Vrischikam 1st, 1200 M.E to Thulam 30th of 1201
M.E. The tenders have to be submitted through online and
the last date for submission of tenders was upto 11 am on
30/07/2024. The petitioner responded to Exhibit-P1 tender
notification and submitted his bid. Three bids were received
and pursuant to Exhibit-Pl notification. The tenders received
were opened on 31.07.2024 at Devaswom Commissioner's
office at Thiruvananthapuram. The bid submitted by
petitioner was the lowest bid.
5. It is submitted that usually the credentials of the lowest
bidders, L1 & L2 are verified by the Vigilance wing of the
Board headed by the Superintendent of Police. The
credentials of the prospective bidders are enquired to
ascertain their capability to supply the required items without
any fail. The above verification is insisted in respect of all
suppliers since any shortfall or delay in supplying the articles
will adversely affect the religious rites of the pilgrims, which
cannot be compensated in terms of money. As regards the
kuthaka item covered by Exhibit-P1 notification, only one
supplier is awarded the right to supply the kettu nira articles
at Pamba. Majority of the pilgrims depend on the articles
supplied by this Kuthaka holder at pamba for their kettu nira.
Hence the capacity and credibility of the supplier is a crucial
factor required to be ascertained before awarding the
kuthaka right.
6. It is submitted the credentials of the petitioner with
respect to his capacity to execute the supply was enquired
and it is revealed that he does not have the experience or
capacity to execute the contract, Petitioner do not have any
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means or assets. Though the petitioner submitted bid in his
individual capacity, it is revealed on enquiry that he is a name
lender for another company named Surya Trading Company.
The above company seems to have made the petitioner a
partner of it after submission of Exhibit-P3 bid. Such persons
cannot be awarded the contract, since there is likelihood of
blacklisted persons/companies attempting to take part in the
tender process through other name lenders. On enquiry by
the Vigilance wing, it is revealed that Petitioner is such a
name lender. In case of any default or failure in the supply,
the Board cannot proceed against the petitioner, since he has
no assets in his name.
7. It is respectfully submitted that considering the above
facts, the bid submitted by the petitioner was rejected vide
Exhibit-P6. This Hon'ble Court on earlier occasions
deprecated the practice of awarding kuthakas to those who
lack the capacity to execute the same. [Sumesh Kumar. R v.
State of Kerala & others [2024:KER:11270]".
10. Heard the learned counsel for the petitioner, the learned
Senior Government Pleader for the 1st respondent State and also
for additional 4th respondent Senior Deputy Director, State Audit
Department, Travancore Devaswom Board and also the learned
Standing Counsel for Travancore Devaswom Board for respondents
2 and 3.
11. The Travancore-Cochin Hindu Religious Institutions Act,
1950 enacted by the State Legislature makes provision for the
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administration, supervision and control of incorporated and
unincorporated Devaswoms and of other Hindu Religious
Endowments and Funds. Sabarimala Devaswom and Pamba
Devaswom are incorporated Devaswoms mentioned in Schedule I
of the Act, under Chengannur Group, Pathanamthitta Taluk.
12. Section 15A of the Act, inserted by Act 5 of 2007, with
effect from 12.04.2007, deals with duties of the Board. As per
Section 15A, it shall be the duty of the Board to perform the
following functions, namely, (i) to see that the regular traditional
rites and ceremonies according to the practice prevalent in the
religious institutions are performed promptly; (ii) to monitor
whether the administrative officials and employees and also the
employees connected with religious rites are functioning properly;
(iii) to ensure proper maintenance and upliftment of the Hindu
religious institutions; (iv) to establish and maintain proper facilities
in the temples for the devotees. As per Section 31 of the Act,
subject to the provisions of Part I and the rules made thereunder,
the Board shall manage the properties and affairs of the
Devaswoms, both incorporated, and unincorporated as heretofore,
and arrange for the conduct of the daily worship and ceremonies
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and of the festivals in every temple according to its usage.
13. Sabarimala is situated in a difficult forest terrain prone
to natural disasters. Sabarimala and its vicinity are declared as a
Special Security Zone under Section 83(1) of the Kerala Police Act,
2011, in order to exercise the powers under Section 83(2) of the
said Act, to ensure a safe, secure and hassle-free pilgrimage, in
terms of the notification issued by the State Government. The
management of Virtual-Q system for Sabarimala darshan is
governed by the directions contained in the order of this Court in
Suo Motu v. Travancore Devaswom Board and others [2022
(7) KHC SN 5 : 2022 SCC OnLine Ker 2185]. As directed in that
order, verification of Virtual-Q tickets and other related matters are
the responsibilities of the Kerala Police, as part of crowd
management. The number of footfall at Sabarimala Sannidhanam
during Mandala-Makaravilakku festival season of 1199 ME (2023-
24) was more than 1,00,000 per day, which had gone up to
1,15,000 per day, as per the records.
14. In the instant case, Ext.P1 e-Tender notification issued
by the 3rd respondent Devaswom Commissioner is for supply of
'Kettu Nara' articles for Sabarimala pilgrims at Pamba Devaswom
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for the period from Vrischikam 1st 1200ME to Thulam 30th 1201ME.
Pursuant to that notification, the petitioner submitted his bid, in his
individual capacity, which was the lowest bid (L1). As per the
practice that is being followed during every Mandala-Makaravilakku
festival seasons, the credentials of those who submitted the lowest
bids (L1 & L2) were verified by the Vigilance Wing of the Travancore
Devaswom Board, headed by the Chief Vigilance and Security
Officer (Superintendent of Police). The credentials of the
prospective bidders are enquired into by the Vigilance Wing of the
Board, to ascertain their capacity to supply the required items
without any default. Such a verification is insisted in respect of all
suppliers, since any shortfall or delay in supplying the required
articles would adversely affect the religious rights of the pilgrims,
which cannot be compensated in terms of money. Insofar as the
Kuthaka item covered by Ext.P1 e-Tender notification is concerned,
only one person is awarded the right to supply Kettu Nara articles
at Pamba. Majority of the pilgrims on their way to Sabarimala
Sannidhanam depend upon the supply of Kettu Nara articles of the
successful bidder in the tender process pursuant to Ext.P1 e-Tender
notification. Hence, the capacity and credibility of the supplier is a
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crucial factor required to be ascertained by the Board before
awarding the contract.
15. In the counter affidavit filed by the 2nd respondent, it is
stated that the credentials of the petitioner with respect to his
capacity to execute the supply of Kettu Nara articles were entered
into by the Vigilance Wing. In that enquiry, it was revealed that the
petitioner does not have any experience or capacity to supply the
required articles and that he does not have any means or assets.
Though the petitioner submitted bid in his individual capacity, the
enquiry revealed that he is only a name lender for a Firm by name
Surya Trading Company. The said Firm appears to have made the
petitioner as one of its partners, after the submission of Ext.P3 bid.
The stand taken in the counter affidavit filed by the 2nd respondent
Board is that such a person cannot be awarded the contract, since
there is likelihood of black-listed persons/Companies attempting to
take part in the tender process conducted by the Board, through
name lenders. In the enquiry by the Vigilance Wing, it was revealed
that the petitioner is only a name lender and in case there is any
default or delay on the part of the petitioner in supplying the
required quantity of Kettu Nara articles, the Board cannot proceed
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against him, since he does not have any assets in his name.
Therefore, the 3rd respondent Devaswom Commissioner decided to
reject Ext.P3 bid submitted by the petitioner.
16. During the course of arguments, the learned counsel for
the petitioner would place reliance on the decision of the Calcutta
High Court in Saheli Nandi v. Union of India and Others (WPA
No.25906 of 2023), wherein it is held in paragraph 23 as follows;
"23. It is also well-settled that "the goal posts cannot be
changed once the game has begun". In the present case, the
respondent-Authorities have altered the cardinal premise of
the tender, that is, the minimum quotable rate, after all the
bidders submitted their bid and had no occasion to alter the
same. Such arbitrary fixation of a minimum price after taking
in all the bids is unheard of and ex facie arbitrary. If the
petitioner and the private respondent nos.6 to 12 and the
other bidders were aware that the minimum rate was
Rs.88.63p they would have definitely taken the same into
consideration and put in their bids accordingly. In fact, fixing
a particular minimum rate has its own demerits. It is often
seen that in such cases several, if not all, bidders quote
exactly the minimum rate as their own quotations, which
would render an otherwise competitive tender a farce."
17. The learned counsel for the petitioner has also relied on
the decision of a Division Bench of the High Court of Jharkhand
in Anik Industries Limited v. Jharkhand State Housing Board
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and Others (Letters Patent Appeal No.128 of 2009), in order to
contend that the tender conditions could not have been
amended/altered by the Travancore Devaswom Board, after the
issuance of Ext.P1 e-Tender notification. In the said decision, the
High Court of Jharkhand relied on the decision of the Apex Court in
Mohinder Singh Gill v. Chief Election Commissioner [AIR
1978 SC 851].
18. Al already noticed hereinbefore, under Section 15A of
the Act, it shall be the duty of the Travancore Devaswom Board to
see that the regular traditional rites and ceremonies according to
the practice prevalent in Sabarimala, Malikappuram and Pamba
Devaswoms are performed promptly and to establish and maintain
proper facilities in the temples for the devotees. As per Section 31
of the Act, the Board shall arrange for the conduct of the daily
worship and ceremonies and of the festivals in Sabarimala,
Malikappuram and Pamba Devaswoms according to its usage.
19. In Ram Mohan Das v. Travancore Devaswom Board
[1975 KLT 55] a learned Single Judge of this Court held that,
under Section 31 of the Travancore-Cochin Hindu Religious
Institutions Act, the Travancore Devaswom Board shall manage the
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properties and affairs of the Devaswoms, both incorporated and
unincorporated and arrange for the conduct of the daily worship
and ceremonies and of the festivals in every temple according to
its usage. The position of the Board in regard to the Devaswoms -
incorporated and unincorporated - is analogous to that of trustees.
Any improper act of the Trustees could be questioned by a
worshipper
20. In M.V. Ramasubbiar v. Manicka Narasimachara
[(1979) 2 SCC 65], in the context of Sections 49, 51 and 52 of
the Trusts Act, 1882, the Apex Court explained the nature of the
fiduciary position of the trustee and his duties and obligations. It is
the duty of the trustees of the property to be faithful to the Trust
and execute any document with reasonable diligence in the manner
of an ordinary prudent man of business would conduct his own
affairs. A trustee could not, therefore, occasion any loss to the Trust
and it is his duty to sell the property if at all that was necessary, to
the best advantage.
21. In view of the statutory provisions referred to
hereinbefore and the law laid down in the decisions referred to
supra, in the tender process for supply of Kettu Nara articles for
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the pilgrims at Pamba for the period from Vrischikam 1st 1200ME
to Thulam 30th 1201ME, in connection with Mandala-Makaravilakku
festival season of 1200ME (2024-25), the 2nd respondent
Travancore Devaswom Board and the 3rd respondent Devaswom
Commissioner, have a duty to exercise reasonable diligence in the
manner of an ordinary prudent man of business would conduct his
own affairs, keeping in mind that the position of the Board in regard
to the Devaswoms - incorporated and unincorporated - is
analogous to that of trustees. Any shortfall or delay in the supply
of Kettu Nara articles at Pamba will adversely affect the religious
rights of lakhs of pilgrims, who depend on the Kettu Nara articles
supplied at Pamba Devaswom, during every Mandala-
Makaravilakku festival seasons. Since only one person is awarded
the right to supply Kettu Nara articles at Pamba, any shortfall or
delay in supply may cause serious prejudice to the rights of the
pilgrims, who will have to proceed to Sannidhanam without
Irumudikettu, which cannot be compensated in terms of money.
The process of verification by the Vigilance Wing to ascertain the
credibility of the lowest bidders (L1 & L2) is done in respect of all
Kuthaka items in Sabarimala, Malikappuram and Pamba
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Devaswoms. Such a process undertaken by the Board, through its
Vigilance Wing cannot be said to be either arbitrary or illegal and
the contentions to the contra raised by the learned counsel for the
petitioner, relying on the decisions in Saheli Nandi v. Union of
India and Others (WPA No.25906 of 2023) and Anik Industries
Limited v. Jharkhand State Housing Board and Others
(Letters Patent Appeal No.128 of 2009) can only be repelled as
untenable and we do so.
22. During every Mandala-Makaravilakku festival season,
there is cartel formation by the bidders in connection with the
tender process pursuant to the tender notifications issued by the
3rd respondent Devaswom Commissioner, in respect of Sabarimala,
Malikappuram and Pamba Devaswoms. In terms of the directions
contained in the judgment of this Court Sumesh Kumar v. State
of Kerala [2024 KHC OnLine 1171] and Sunil Kumar P.G. v.
State of Kerala [2022 KER 71822], etc., the Board has initiated
revenue recovery proceedings against the defaulted Kuthaka
holders. In terms of the directions issued by this Court, in
appropriate cases, the Board has to initiate proceedings to blacklist
the Kuthaka holder, who has committed default in supplying the
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articles or in remitting the balance bid amount. The shortfall or
delay in supply of required quantity of composite cans for Aravana
Prasadam and the shortfall in supply of manpower for making
Appam Prasadam during the previous Mandala-Makaravilakku
festival seasons of 1198ME and 1199ME were the subject matter
of various SSCRs filed by the Special Commissioner, Sabarimala, in
which this Court has issued various directions. The default
committed by the respective Kuthaka holders in supplying the
required quantity of composite cans and manpower had resulted in
shortage of Aravana Prasadam and Appam Prasadam during the
festival season, resulting huge loss to the Board. In addition to that,
the Board was forced to procure composite cans during the festival
season, at a higher rate, in order to ensure sufficient supply of
Prasadam to the pilgrims. In such circumstances, the 3rd
respondent Devaswom Commissioner cannot be found fault with in
rejecting the lowest bid of the petitioner, for the reasons stated in
Ext.P6.
23. We have also perused the files relating to the tender
process pursuant to Ext.P1 e-Tender notification, which would make
it expressly clear that, after considering the report of the Vigilance
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Wing on the credibility of the petitioner, the Board decided to reject
the bid submitted by the petitioner quoting an amount of Rs.96/-
per Kettu and accepted the bid by one Ayyappan Pillai K.C. of
Malabar Agencies, who quoted Rs.102/- per Kettu. During the
course of arguments, the learned Standing Counsel for Travancore
Devaswom Board would submit that the bid submitted by quoting
Rs.102/- per Kettu has already been accepted by the 3rd
respondent Devaswom Commissioner, since the Mandala-
Makaravilakku festival season of 1200ME will commence on
16.11.2024 and the pilgrims will reach Pamba by 15.11.2024.
24. For the reasons stated above, we find that the petitioner
who submitted Ext.P3 bid in his individual capacity is not entitled
to any of the reliefs sought for in this writ petition.
In the result, the writ petition fails and the same is
accordingly dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
Scl/
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APPENDIX OF WP(C) 37305/2024
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE TENDER INVITATION
DATED 15/07/2024 ISSSUED BY
THIRUVATHANKUR DEVASOM BOARD
Exhibit P2 A TRUE COPY OF THE PETITIONER'S BID
SUBMISSION DATED 29/07/2024
Exhibit P3 A TRUE COPY OF THE RECEIPT FOR THE
EARNEST MONEY DEPOSIT OF ETENDERING
SYSTEM , GOVERNMENT OF KERALA, BID
ACKNOWLEDGEMENT DATED 07/09/2024
Exhibit P4 A TRUE COPY OF THE LETTER FROM DHEERA
TRADING COMPANY DATED 11/09/2024
Exhibit P5 A TRUE COPY OF REPRESENTATION PREFERRED
BY PETITIONER DATED 07/10/2024
Exhibit P6 A TRUE COPY OF THE LETTER ISSUED BY
THIRUVATHANKUR DEVASWOM BOARD DATED
18/10/2024
