Kerala High Court

A.D. Gireesh vs State Of Kerala on 28 February, 2025

                                    1

 W.P(C) Nos.39941 of 2018
 and 7129 of 2018                                  2025:KER:16595


                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

              THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON

     FRIDAY, THE 28TH DAY OF FEBRUARY 2025 / 9TH PHALGUNA, 1946

                          WP(C) NO.39941 OF 2018


PETITIONER:

              M/S.ROHINI FACILITY MANAGEMENT SERVICES,
              REVENUE TOWER, B18, NEAR BOAT JETTY, ERNAKULAM,
              COCHIN-682011, REPRESENTED BY PROPRIETOR, A.D. GIREESH,
              AGED 44, S/O. DHARMAN, ALLAPARAMBIL, CHERAI,
              PALLIPPURAM VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT.

              BY ADV.VARGHESE C.KURIAKOSE


RESPONDENTS:

    1         STATE OF KERALA,
              REPRESENTED BY CHIEF SECRETARY, SECRETARIAT,
              MAHATHMA GANDHI ROAD JUNCTION, STATUE ROAD,
              PALAYAM, THIRUVANANTHAPURAM, KERALA-695001.

    2         THE SECRETARY, DEPARTMENT OF PUBLIC WORKS,
              SECRETARIAT, MAHATHMA GANDHI ROAD JUNCTION,
              STATUE ROAD, PALAYAM, THIRUVANANTHAPURAM,
              KERALA-695001.

    3         THE LAND REVENUE COMMISSIONER,
              STATE OF KERALA, PUBLIC OFFICE BUILDING,
              MUSEUM ROAD, OPPOSITE ZOO, VIKHAS BHAVAN P.O.,
              THIRUVANANTHAPURAM, KERALA-695033.

    4         THE DISTRICT COLLECTOR, ERNAKULAM DISTRICT,
              CIVIL STATION, KAKKANAD, KOCHI-682030.

    5         THE DEPUTY TAHASILDAR (RR).
              KOCHI TALUK, FORT KOCHI-682001.
                                  2

 W.P(C) Nos.39941 of 2018
 and 7129 of 2018                             2025:KER:16595



    6     THE ROADS AND BRIDGES DEVELOPMENT CORPORATION OF
          KERALA LTD., 2ND FLOOR, PREETHI BUILDING, M.V. ROAD,
          PALARIVATTOM, KOCHI-682025, REPRESENTED BY ITS MANAGING
          DIRECTOR.


          BY SENIOR GOVERNMENT PLEADER, SRI.E.G.GORDEN
          SRI.VIPIN P.VARGHESE
          SRI.ADARSH MATHEW
          SRI.DILJITH K.MANOHAR
          SMT. DHANYA T MALLAR
          RESMITHA.R.CHANDRAN, STANDING COUNSEL


THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20.02.2025,
ALONG WITH WP(C).7129/2018, THE COURT ON 28.02.2025 DELIVERED THE
FOLLOWING:
                                     3

 W.P(C) Nos.39941 of 2018
 and 7129 of 2018                                  2025:KER:16595



                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

              THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON

     FRIDAY, THE 28TH DAY OF FEBRUARY 2025 / 9TH PHALGUNA, 1946

                          WP(C) NO. 7129 OF 2018


PETITIONER:
              A.D. GIREESH, AGED 42 YEARS,
              S/O.DHARMAN A.R., ALLAPARAMBIL HOUSE, CHERAI P.O.,
              PIN-683514, PROPRIETOR, ROHINI FACILITY MANAGEMENT
              SERVICES, ROHINI TOWER, B-18, NEAR BOAT JETTY,
              ERNAKULAM, KOCHI-682011.

              BY ADVS.
              SRI.VARGHESE C.KURIAKOSE
              SRI.P.J.JOSE
              SMT.SEENU SADIQUE

RESPONDENTS:

     1        STATE OF KERALA, REP. BY SECRETARY, PUBLIC WORKS
              DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.

     2        THE PRINCIPAL SECRETARY, PUBLIC WORKS DEPARTMENT,
              THIRUVANANTHAPURAM-695001.

     3        THE ROADS AND BRIDGES DEVELOPMENT,
              CORPORATION OF KERALA, PALARIVATTOM,
              REP. BY ITS MANAGING DIRECTOR-682024.

              BY SMT.RESMITHA.R.CHANDRAN, STANDING COUNSEL
              BY SRI.E.G.GORDEN, SENIOR GOVERNMENT PLEADER

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.02.2025,
ALONG WITH WP(C).39941/2018, THE COURT ON 28.02.2025 DELIVERED THE
FOLLOWING:
                               4

W.P(C) Nos.39941 of 2018
and 7129 of 2018                            2025:KER:16595



                           JUDGMENT

[W.P(C) Nos.39941/2018 and 7129/2018]

These two writ petitions are filed challenging the steps

taken by the 6th respondent Corporation in W.P(C)No.39941

of 2018 (3rd respondent in W.P(C)No.7129 of 2018) with

respect to the dispute over the user fee collection at the

overbridges at S.N junction, Tripunithura-Irumpanam in the

Seaport-Airport road and Ponnurunni overbridge

respectively.

2. The petitioner in W.P(C)No.39941 of 2018 states

that he was the successful bidder for the collection of user

fee on contract basis on the overbridges noticed above,

awarded by the 6th respondent - a Government of Kerala

undertaking. The total amount payable by the petitioner was

to the extent of Rs.3,67,20,000/-, in 24 installments

commencing from 01.06.2014 and ending by 16.05.2015.

The contract was for a period of one year from 01.06.2014

and 7129 of 2018 2025:KER:16595

to 01.06.2015. A bank guarantee for Rs.93,63,600/- is

stated to have been furnished towards the security deposit.

The petitioner contends that they were not in a position to

collect the user fee on account of agitation by the regional

residents associations and the local politicians, according to

whom, more than sufficient collection compared to the cost

of construction has already been made. On account of the

afore, the petitioner states that he could not effect the

installments as stipulated. The petitioner states that though

he filed a writ petition seeking police protection, during the

pendency of the same, the 6th respondent Corporation, as

per Ext.P1 dated 16.08.2014, terminated the contract. The

petitioner states that they submitted a detailed

representation to the 6th respondent pointing out the

difficulties faced by them. However, the respondent

Corporation invoked the bank guarantee submitted by the

petitioner. The petitioner also approached the Government

and 7129 of 2018 2025:KER:16595

voicing his grievance and the same was rejected by the

Government. The said rejection was the subject matter for

challenge in W.P(C)No.3022 of 2015 filed by the petitioner,

which stood disposed of by judgment dated 26.10.2016,

noticing that the impugned order was issued by the

Managing Director of the respondent Corporation at that

point of time, who was also holding the charge of the

Secretary to the Government. This Court noticing that the

encashment of the bank guarantee was made without a

proper adjudication and consequential quantification of

liability, permitted the petitioner to make a motion to that

effect to the Government, further directing the Government

to take a decision on the matter after obtaining legal advice

from the Law Department, if found necessary.

3. The Government thereafter issued Ext.P9 dated

28.08.2017 and found that the amount realized by invoking

the bank guarantee was required to be refunded to the

and 7129 of 2018 2025:KER:16595

petitioner on "humanitarian reasons". It may straight away

be noticed that the order recorded that the petitioner was

not able to collect the user fee on account of the public

outcry.

4. The afore order of the Government was

challenged by the respondent Corporation by filing

W.P(C)No.29860 of 2017, essentially on the ground that out

of the security deposit encashed-Rs.93,63,600/-, an amount

of Rs.47,42,400/- has been adjusted to the installments

defaulted by the petitioner prior to termination of the

contract and it is the balance of Rs.45,79,420/-, that need to

be refunded to the petitioner. However, by Ext.P11 judgment

dated 10.10.2017, that writ petition was withdrawn by the

respondent Corporation unconditionally. Later, notice dated

29.06.2018 was issued seeking to recover the installments

defaulted till the termination of the contract to which the

petitioner submitted Ext.P13 reply, that nothing remains to

and 7129 of 2018 2025:KER:16595

be recovered from the petitioner in the light of Ext.P9

Government Order dated 28.08.2017. The respondent

Corporation has thereafter sought to realize the afore arrears

through revenue recovery proceedings by Exts.P16 and P17.

It is in the afore circumstance that W.P(C)No.39941 of 2018

is filed.

5. W.P(C)No.7129 of 2018 is filed by the petitioner

contending that he was the successful bidder for the

collection of user fee on a contract basis from the Ponnurunni

overbridge, that no collection could be effected on account

of the public uproar as in the other case. When it was

pointed out, the respondent Corporation sought to cancel the

agreement upon the petitioner consenting to the same by

Ext.P6 dated 14.11.2014, without endorsing the risk and cost

liability allowing an amount of Rs.4,60,571/- to the

petitioner, however, adjusting the afore amount to the

alleged dues payable with respect to the overbridges which

and 7129 of 2018 2025:KER:16595

are the subject matter of the dispute in the connected case.

The petitioner has sought a refund of the afore amounts

through this writ petition.

6. I have heard Sri. Varghese C. Kuriakose, the learned

counsel for the petitioners, Smt. Resmitha R. Chandran, the

learned Standing Counsel for the respondent Corporation

and Sri. E.G. Gorden, the learned Senior Government

Pleader for the State.

7. The following issues arise for consideration in these

writ petitions: -

i. Whether the petitioner can maintain a challenge

against the recovery proceedings through a writ

petition filed under Article 226 of the Constitution

of India in the facts and circumstances of the case?

ii. Whether the respondent Corporation is entitled to

take steps to realize the alleged defaulted arrears

of installments in the light of the findings in Ext.P9

and 7129 of 2018 2025:KER:16595

Government Order?

8. The first issue arising for consideration in these writ

petitions is with reference to the maintainability of the writ

petitions. Smt. Resmitha, the learned counsel for the

respondent Corporation relied on the judgment of the Apex

Court in Joshi Technologies International Inc. v. Union

of India and Others [(2015) 7 SCC 728]. True, the afore

judgment of the Apex Court held that writ jurisdiction of High

Court was not intended to facilitate avoidance of contractual

obligation. However, in the case at hand, the contention

raised by the petitioner is to the effect that the liability, if any

of the petitioner stood governed by the orders issued by the

Government at Ext.P9 dated 28.08.2017 and on the face of

the afore, the respondent Corporation cannot proceed to

invoke the power under the Kerala Revenue Recovery Act,

1968, for realization of the alleged defaulted installments. In

other words, the case of the petitioner is centered around

and 7129 of 2018 2025:KER:16595

the scope of Ext.P9 Government Order. The prayer in the

writ petition is also with reference to the proposal to realize

the defaulted installments on the face of Ext.P9, and when

that be so, I am of the opinion that the petitioner can

maintain a writ petition challenging the coercive

proceedings. Therefore, the first objection raised by Smt.

Resmitha is only to be recorded and rejected.

9. The second issue arising for consideration is with

reference to the steps taken to realize the alleged defaulted

installments by the respondent Corporation under the Kerala

Revenue Recovery Act, 1968. The amount sought to be

realized is the arrears of installments till termination of the

contract, is clear from a perusal of Ext.P12.

10. The learned counsel Smt.Resmitha relied on clauses

3.18 and 3.19 of Ext.R6(1) agreement executed between the

parties to contend that once there is a default, the

respondent Corporation is at liberty to recover the loss. She

and 7129 of 2018 2025:KER:16595

would also rely on clause 3.12 to contend that the petitioner

cannot plead ignorance of the ground realities, with

reference to the public protest pointed out by the petitioner.

11. I have considered the afore contention. True, clause

3.12 of Ext.R6(1) agreement reads as under:-

"3.12 Contractor has to make all arrangements other than what are existing at the tollbooths for the smooth running of user fee collection at his own expense. RDBCK has no liability in this regard."

Therefore, it is for the petitioner to make arrangements for

the smooth running of the toll booth. The petitioner has

contended that when obstruction was created, they had

approached this Court seeking police protection and it was at

that point, the agreement was terminated. In this

connection, I notice the dictum laid down by the Apex court

in ABL International Ltd. and Another v. Export Credit

Guarantee Corporation of India Ltd. and Others

[(2004) 3 SCC 553] wherein it is held that when the State

and 7129 of 2018 2025:KER:16595

or its instrumentality is a party to a contract, it has an

obligation to act fairly, justly and reasonably with reference

to the requirement under Article 14 of the Constitution. It is

in the light of the afore principles that in the proceedings at

Ext.P9 the existence of the public outcry, as pointed out by

the petitioner, which prevented him from making the toll

collection, is found correct. In the light of the afore, the case

built up by the respondent Corporation with reference to

clauses 3.12 and 3.19, does not appear to be convincing.

12. It is also to be noticed that under clause 3.19, once

there is a default in payment of the installments as stipulated

in clause 3.17, the work can be rearranged at the risk and

cost for the petitioner and the loss if any sustained by the

respondent Corporation can be recovered from either the

security deposit or by revenue recovery action. In the case

at hand, along with termination of the contract, the entire

amount of security deposit is seen realized from out the bank

and 7129 of 2018 2025:KER:16595

guarantee furnished by the petitioner. Therefore, the

respondent Corporation has invoked the provisions of clause

3.19 against the petitioner. But the Government intervened,

taking note of the special circumstance, which, according to

the Government, requires the application of "humanitarian

reasons", ordering the entire security deposit of

Rs.92,63,600/- to be returned to the petitioner. In the light

of the afore, I am of the opinion that the Government has

thought it as a fit case not to invoke clause 3.19 of the

agreement. When the Government directs a fixed deposit to

be returned back to the petitioner even after the same being

invoked, there cannot be a separate recourse to the revenue

recovery proceedings under clause 3.19.

13. From the afore, I notice that the respondent

Corporation was also aware that there cannot be any further

proceedings against the petitioner in the light of Ext.P9 order

and that is why W.P(C)No.29860 of 2017 was filed by them

and 7129 of 2018 2025:KER:16595

challenging the Government Order at Ext.P9. However, the

afore writ petition was withdrawn by the respondent

Corporation themselves and in the light of the afore, there

cannot be any further proceedings against the petitioner. In

this connection, I take note of the contention raised by the

learned counsel Smt. Resmitha, with reference to Ext.R6(a)

communication of the Government dated 16.05.2018,

whereby the Government informed the respondent

Corporation that the default amount may be dealt with as

per the Rules of the company. However, I notice that the

afore communication has not been issued with specific

reference to the Government Order at Ext.P9 dated

28.08.2017 and that the petitioner was also not heard while

issuing the same. Therefore, I am of the opinion that much

reliance can't be placed on the said communication as

contended by the respondent Corporation.

and 7129 of 2018 2025:KER:16595

14. I also notice that the Government issued Ext.P9

with specific reference to the directions contained in

make it clear that this Court directed the Government to

consider the rival contentions/entitlements/liability in their

entirety taking note of the factual and legal issues.

Considering the aforementioned, the findings in Ext.P9 can

only be one rendered by the Government with respect to the

liability of the petitioner for the default in installments as well

as the entitlement to get back the security deposit.

15. Furthermore, if the contention raised by the

respondent Corporation is to be accepted, then it has to be

held that the extension of the humanitarian grounds can only

be for the claim of realization of security deposit and not for

realization of the defaulted installments. As already noticed,

the security deposit is furnished for safeguarding the

defaulted installments also.

and 7129 of 2018 2025:KER:16595

16. Therefore, I hold that the respondent Corporation is

not entitled to initiate revenue recovery proceedings for

realization of the defaulted installments, in the light of the

findings contained in Ext.P9. I also notice that as regards

the Ponnurunni overbridge, the subject matter of

risk/cost is sought to be demanded from the petitioner.

When that be so, it is only just and proper that the same

yardstick is applied as regards the dispute involved in the

other case also.

17. In the light of the afore, the attempt of the

respondent Corporation to adjust the amount of

Rs.4,60,571/- as per the impugned order at Ext.P9 in

arbitrary.

In the result, these writ petitions are disposed of as

under:

and 7129 of 2018 2025:KER:16595

Exts.P16 and P17 issued by the 5th respondent.

Ext.P9 order issued by the 3rd respondent, to the

extent an amount of Rs.4,60,571/- is sought to be

adjusted towards the alleged liability payable by the

petitioner.

Sd/-

                           HARISANKAR V. MENON, JUDGE
  ln



and 7129 of 2018                                  2025:KER:16595



                    APPENDIX OF WP(C) 7129/2018

PETITIONER'S EXHIBITS:

EXHIBIT P1       TRUE PHOTOCOPY OF THE WORK ORDER DATED 30-01-2014.

EXHIBIT P2       TRUE PHOTOCOPY OF THE AGREEMENT DATED 31-01-2014.

EXHIBIT P3       TRUE PHOTOCOPY OF THE RECEIPT DATED 31-01-2014
                 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P4       TRUE PHOTOCOPY OF THE RECEIPT ISSUED BY THE 3RD
                 RESPONDENT.

EXHIBIT P5       TRUE PHOTOCOPY OF THE REPLY DATED 25-10-2014.

EXHIBIT P6       TRUE PHOTOCOPY OF THE LETTER DATED 14-11-2014.

EXHIBIT P7       TRUE PHOTOCOPY OF THE JUDGMENT DATED 26-10-2016 IN

EXHIBIT P8 TRUE PHOTOCOPY OF THE ORDER PASSED BY THE GOVT. ON 28-08-2017.

EXHIBIT P9 TRUE PHOTOCOPY OF THE REPLY NOTICE DATED 22-12- 2017.

EXHIBIT P10 TRUE PHOTOCOPY OF THE REPLY NOTICE DATED 30-01- 2018.

EXHIBIT P11 TRUE PHOTOCOPY OF THE PETITION TO THE 1ST RESPONDENT ON 18-12-2017.

RESPONDENTS' EXHIBITS:

EXHIBIT R3(A) PHOTOSTAT COPY OF AGREEMENT EXECUTED BETWEEN THE WRIT PETITIONER AND MANAGING DIRECTOR, ROADS & BRIDGES DEVELOPMENT CORPORATION OF KERALA LTD.

                 DATED 31.1.2014



and 7129 of 2018                               2025:KER:16595



                  APPENDIX OF WP(C) NO.39941/2018


PETITIONER'S EXHIBITS:

EXHIBIT P1        TRUE PHOTOSTAT COPY OF THE NOTICE OF

TERMINATION DATED 16/08/2014 SERVED ON 20/08/2014.

EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE OBJECTION FILED BY THE PETITIONER.

EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE REPRESENTATION DATED 23/10/2014.

EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE INFORMATION COLLECTED ON 03/07/2014.

EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE INFORMATION COLLECTED ON 19/09/2013.

EXHIBIT P6 TUE PHOTOSTAT COPY OF THE REPRESENTATION DATED 24/10/2014 SUBMITTED BY THE PETITIONER BEFORE 2ND RESPONDENT.

EXHIBIT P7 TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 05/11/2017 IN WPC NO.29025/2014 IF THIS HON'BLE COURT.

EXHIBIT P8 TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 26/10/2016 IN WPC NO.3022/2015.

EXHIBIT P9 TRUE PHOTOSTAT COPY OF THE ORDER DATED 28/08/2017 PASSED BY THE 2ND RESPONDENT.

EXHIBIT P10 TRUE PHOTOSTAT COPY OF THE WRIT PETITION FILED AS WPC NO.29860/2017 WITHOUT EXHIBITS.

EXHIBIT P11 TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 10/10/2017 IN WPC NO.29860/2017.


EXHIBIT P12       TRUE PHOTOSTAT COPY OF THE LETTER DATED



and 7129 of 2018                               2025:KER:16595

29/06/2018 WAS ISSUED TO THE PETITIONER.

EXHIBIT P13 TRUE PHOTOSTAT COPY OF THE OBJECTION DATED 02/07/2018 GIVEN BY THE PETITIONER.

EXHIBIT P14 TRUE PHOTOSTAT COPY OF THE REPLY DATED 14/08/2018 ISSUED BY THE 6TH RESPONDENT.

EXHIBIT P15 TRUE PHOTOSTAT COPY OF THE REPLY DATED 21/08/2018 GIVEN BY THE PETITIONER.

EXHIBIT P16 TRUE PHOTOSTAT COPY OF THE DEMAND NOTICE ISSUED UNDER SECTION 7 OF THE KERALA REVENUE RECOVERY ACT.

EXHIBIT P17 TRUE PHOTOSTAT COPY OF THE DEMAND NOTICE DATED 17/09/2018 ISSUED UNDER SECTION 34 OF THE KERALA REVENUE RECOVERY ACT.

EXHIBIT P18 TRUE PHOTOSTAT COPY OF THE APPEAL PETITION DATED 24/11/2018 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

RESPONDENTS' EXHIBITS:

EXHIBIT R6(3) TRUE COPY OF THE PARTITION DEED NO. 127/2022 OF SUB REGISTRAR OFFICE, KUZHUPPULLY.

EXHIBIT R6(4) TRUE COPY OF THE LETTER SENT BY THE ANSWERING RESPONDENT TO THE 4TH RESPONDENT HEREIN ON 14/02/2023.

EXHIBIT R6(5) TRUE COPY OF THE WRIT PETITION IN WPC NO.

29768 OF 2021.

EXHIBIT R6(6) TRUE COPY OF THE JUDGMENT DATED 05/01/2022 IN WPC NO. 29768 OF 2021 .

EXHIBIT R6(7) TRUE COPY OF RECEIPT NO. 3404 DATED 05.05.2014 EVIDENCING THE PAYMENT OF RS.5,00,000/.
and 7129 of 2018                              2025:KER:16595


EXHIBIT R6(8)    TRUE COPY OF RECEIPT NO. 3423 DATED 20.05.2014
EVIDENCING THE PAYMENT OF RS. 6,95,669/-.

EXHIBIT R6(9) TRUE COPY OF RECEIPT NO. 3434 DATED 30.05.2014 EVIDENCING THE PAYMENT OF RS.3,64,931/-.

EXHIBIT R6(10) TRUE COPY OF RECEIPT NO. 3470 DATED 17.07.2014 EVIDENCING THE PAYMENT OF RS. 10,00,000/-.

EXHIBIT R6(11) TRUE COPY OF RECEIPT NO.3493 DATED 05.08.2014 EVIDENCING THE PAYMENT OF RS. 5,00,000/-.

EXHIBIT R6(12) TRUE COPY OF THE EXTRACT OF THE RELEVANT PAGE OF THE CHEQUE REGISTER EVIDENCING THE RETURN OF AN AMOUNT OF RS. 92,79,627/- VIDE CHEQUE NO. 993659 DRAWN ON THE STATE BANK OF INDIA.

EXHIBIT R6(1)- TRUE COPY OF THE AGREEMENT DATED 30/05/2014 R6(1) 25 EXECUTED BY THE PETITIONER.

EXHIBIT R1(A) TRUE COPY OF THE LETTER NO.H2/192/2017/PWD DATED 16.05.2018.