Kerala High Court
Baby.P vs The Registrar on 17 June, 2016
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY, THE 29TH DAY OF AUGUST 2017/7TH BHADRA, 1939
RP.No. 923 of 2016 (C)
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JUDGMENT IN WPC.NO.16228/2015 DATED 17.06.2016.
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REVIEW PETITIONER/2ND RESPONDENT IN THE WPC:
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BABY.P.,
ILLAMTHURUTHIL HOUSE, MATTUR,
KALADY P.O., ERNAKULAM.
BY SMT.BABY. P. [PARTY IN PERSON]
RESPONDENTS/PETITIONER/RESPONDENT 1 & 3 TO 6:
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1. THE REGISTRAR, KERALA STATE COMMISSION
FOR SCHEDULED CASTE & SCHEDULED TRIBES
AYYANKALI BHAVAN, KANAKA NAGAR,
VELLAYAMBALAM, THIRUVANANTHAPURAM 3.
2. THE MANAGING DIRECTOR,
KERALA STATE ROAD TRANSPORT CORPORATION,
TRANSPORT BHAVAN, FORT,
THIRUVANANTHAPURAM- 695 001.
3. THE DISTRICT TRANSPORT OFFICER,
KERALA STATE ROAD TRANSPORT CORPORATION,
ERNAKULAM.
4. THE SECRETARY,
ANGAMALY MUNICIPALITY, ANGAMALY,
ERNAKULAM.
5. THE DIRECTOR,
SCHEDULED CASTE DEVELOPMENT DEPARTMENT,
AYYANKALI BHAVAN,
THIRUVANANTHAPURAM - 695 001.
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RP.No. 923 of 2016 (C)
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6. THE MANAGING DIRECTOR,
KERALA TRANSPORT DEVELOPMENT
FINANCE CORPORATION LTD,
(A GOVERNMENT OF KERALA UNDERTAKING),
REGISTERED OFFICE AT LEVEL 8 (6TH FLOOR),
TRANS TOWERS, VAZHUTHACAUD,
THIRUVANANTHAPURAM, PIN: 695 014,
REPRESENTED BY ITS MANAGING DIRECTOR,
DR.USHA DEVI BALAKRISHNAN.
R1 & R5 BY SRI.K.V.SOHAN, STATE ATTORNEY
R2 & R3 BY SRI.M.GOPIKRISHNAN NAMBIAR, SC
R4 BY ADV. SRI. P.P.THAJUDEEN, SC
R6 BY ADV. SRI.SUNIL K.R.,SC
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION
ON 04-08-2017, THE COURT ON 29-08-2017 PASSED THE
FOLLOWING:
mbr/
RP.No. 923 of 2016 (C)
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APPENDIX
PETITIONERS' ANNEXURES:
ANNEXURE 1 : THE TRUE COPY OF THE COMMUNICATION
DATED 4.7.2013 ISSUED FROM THE OFFICE OF THE
6TH RESPONDENT.
RESPONDENTS' ANNEXURES: NIL.
//TRUE COPY//
P.S. TO JUDGE
mbr/
P.B.SURESH KUMAR, J.
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R.P.No.923 of 2016
in
W.P.(C).No.16228 of 2015
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Dated this the 29th day of August, 2017
O R D E R
The second respondent in the writ petition seeks review of the judgment.
2. The facts relevant for the disposal of the review petition are the following: The Kerala State Road Transport Corporation (the KSRTC) entered into an arrangement with the Kerala Transport Development Finance Corporation (the Corporation) for construction of a bus terminal-cum-commercial complex (the Building) at Angamali on Build-On-Transfer basis. As per the said R.P.No.923 of 2016 in W.P.(c).No.16228 of 2015 : 2 : arrangement, the Corporation had to construct the Building with their own funds and hand over the same to the KSRTC after recovering the project cost with interest by operating the project. After the construction of the Building, the Corporation has adopted a tender-cum-auction procedure for allotment of the commercial spaces in the Building. It is stated that the allotment of commercial space in the Building was based on the highest offer of interest free security deposit. The monthly rent fixed by the Corporation for one of the shop rooms in the Building bearing No.G44 was Rs.18,814.60/-. It is stated by the petitioner that the second respondent had participated in the tender-cum- auction process floated by the Corporation and offered 85 times of the monthly rent for the said shop room towards interest free security deposit. It is also stated that since the offer made by the second respondent was the highest in respect of the said shop room, the room was provisionally allotted to the second respondent and she was directed to remit the offered security deposit. It is stated by the R.P.No.923 of 2016 in W.P.(c).No.16228 of 2015 : 3 : petitioner that despite repeated demands, the second respondent has not remitted the offered security deposit. Since the second respondent has not remitted the security deposit, the allotment made in her favour in respect of the said shop was cancelled on 18.12.2013. Ext.P6 is the communication issued by the Corporation to the second respondent in this connection. It is stated that thereupon, fresh proceedings have been initiated for allotment of the said shop room and the shop room was allotted to one Basheer who offered more amount than offered by the second respondent towards interest free security deposit. It is also stated by the petitioner that in the meanwhile, though the second respondent filed W.P.(C).No.28146 of 2013 before this Court seeking directions to the Corporation to hand over the shop room and permit her to pay the interest free security deposit in thirty instalments, the said writ petition was dismissed as withdrawn. Thereafter, it is stated that the second respondent preferred another writ petition, W.P.(C).No.18611 of 2014, raising a claim that she R.P.No.923 of 2016 in W.P.(c).No.16228 of 2015 : 4 : is entitled to get the shop room allotted without payment of any security deposit, in her capacity as a member of a Scheduled Caste community and the said writ petition was also dismissed by this Court as per Ext.P8 judgment. Later, the second respondent preferred Ext.P10 complaint before the Kerala State Commission for Scheduled Caste and Scheduled Tribes (the Commission) alleging that the cancellation of the provisional allotment made in her favour is illegal. Ext.P10 complaint was allowed by the Commission directing the Corporation to restore the allotment made in favour of the second respondent. Ext.P12 is the order passed by the Commission in this connection. Ext.P12 order was under challenge in the writ petition. This Court found that the Commission was proceeding as if the second respondent was entitled to the allotment in terms of the offer made by her; that the second respondent was not entitled to the allotment in so far as she failed to pay the offered interest-free security deposit; that the Commission has power to issue orders in the nature of Ext.P12 under R.P.No.923 of 2016 in W.P.(c).No.16228 of 2015 : 5 : Section 9 of the Kerala State Commission for Scheduled Castes and the Scheduled Tribes Act, only if the Commission finds that the members of Scheduled Castes or Scheduled Tribes, as the case may be, are deprived of their due rights and that therefore, the Commission was not justified in issuing Ext.P12 order. The writ petition was accordingly allowed and the impugned direction was quashed. According to the second respondent, the said judgment of this Court is vitiated by errors apparent on the face of the records, and hence this review petition.
3. When the review petition came up for admission on 09.02.2017, the point canvassed by the learned counsel for the second respondent was that the second respondent has offered only one month's rent towards interest-free security deposit; that the demand raised by the Corporation for 85 times of the monthly rent from the petitioner towards interest-free security deposit was without any basis and that since the second respondent was prepared to pay the interest free security deposit R.P.No.923 of 2016 in W.P.(c).No.16228 of 2015 : 6 : offered by her, she was entitled to the allotment claimed by her. According to the learned counsel for the second respondent, it is in the said circumstances that the Commission has directed the Corporation to restore the allotment to the second respondent. It was contended by the learned counsel for the second respondent that while rendering the judgment sought to be reviewed, this Court was proceeding as if the second respondent has offered 85 times of the monthly rent towards interest free security deposit and since the judgment was rendered on that wrong premises, the same is liable to be reviewed.
4. When the review petition was taken up for final disposal on 04.08.2017, the second respondent appeared in person and contended that the Corporation was precluded from demanding security deposit from her in the matter of allotment of space in the Building as she is a person belonging to the Scheduled Caste community. According to the second respondent, she was, therefore, entitled to the allotment claimed by her. The submission of R.P.No.923 of 2016 in W.P.(c).No.16228 of 2015 : 7 : the second respondent was therefore that there was no illegality in Ext.P12 order of the Commission which was impugned in the writ petition.
5. A close reading of Ext.P12 order passed by the Commission does not indicate that the Commission has considered the right of the petitioner to claim allotment in the Building in terms of the tender-cum-auction notice published by the Corporation. On the other hand, the said order indicates that the Commission was proceeding as if the second respondent was entitled to allotment of the shop room claimed by her as she is a member of a Scheduled Caste community. Further, the contention that the second respondent has offered only one month's rent towards interest free security deposit in response to the tender notice and that the second respondent was entitled to the allotment claimed by her in the absence of any other bidder for the said shop room was not a contention raised at the time of hearing of the writ petition either by the counsel for the second respondent or the second respondent who R.P.No.923 of 2016 in W.P.(c).No.16228 of 2015 : 8 : argued the matter in person initially. Be that as if may, in so far as it is pointed out that a contention of the second respondent has not been considered by this Court while rendering the judgment sought to be reviewed, I deem it appropriate to consider the said contention also, leaving apart the technicalities.
6. Ext.P3 is the relevant portion of the tender notice containing the terms and conditions of allotment of space in the Building, published by the Corporation. It is evident from Ext.P3 that the allotment of space in the Building was on the basis of the highest offer of "Interest Free Security Deposit". It is also evident from Ext.P3 that persons interested in occupying commercial space in the Building had to initially submit a tender for the same and the allotment was based on the auction conducted thereafter to select the most acceptable offer. The terms and conditions also indicate that it was for the Corporation to decide whether the offers received are to be accepted. Ext.R2(a) is the tender submitted by the second respondent in the R.P.No.923 of 2016 in W.P.(c).No.16228 of 2015 : 9 : prescribed form. In the column provided therein for mentioning the offer as regards security deposit, the petitioner has mentioned only Rs.18,814.60, which represents one month's rent. Ext.R2(b) is the proceedings of the auction held thereafter on 30.04.2013. In Ext.R2(b), it is indicated that the second respondent has offered at the time of auction 85 times of the monthly rent towards interest free deposit. Ext.R2(b) contains the signature of the petitioner as also the signatures of the Chief Engineer (BOT Projects), Project Co-ordinator and Manager (M.PR&PC) of the Corporation. As noted above, in the counter affidavit filed in the writ petition, the second respondent has taken the stand that she has not offered 85 times of the rent towards security deposit. True, the stand taken by the second respondent that she has offered only one month's rent towards security deposit in the tender submitted by her is correct. But, the second respondent did not say anything in the counter affidavit about the auction in which she participated after the submission of the tender, though she R.P.No.923 of 2016 in W.P.(c).No.16228 of 2015 : 10 : has put her signature in the auction proceedings. The learned counsel for the second respondent argued that the second respondent was an illiterate lady and her signature was obtained in Ext.R2(b) without her knowledge and consent. Ext.P4 is the communication issued by the Corporation to the second respondent on 20.06.2013 directing her to pay 50% of the security deposit offered in terms of Ext.R2(b). The second respondent has not disputed the liability mentioned in Ext.P4 by sending a reply to the same. Instead, on 13.11.2013, the second respondent preferred W.P.(C.) No.28146 of 2013 before this Court admitting the auction proceedings evidenced by Ext.R2(b). Ext.P7 is the copy of the said writ petition. It is stated by the second respondent in the said writ petition that though she approached the Federal Bank for financial assistance to remit the security deposit, she is unable to obtain financial assistance from the said Bank. It is also stated by the second respondent in Ext.P7 that she has, thereafter approached the Bank of India and the matter is being considered by the R.P.No.923 of 2016 in W.P.(c).No.16228 of 2015 : 11 : said Bank. The relief claimed by the second respondent in the said writ petition, therefore, was a direction to the Corporation to permit her to pay the security deposit offered in terms of Ext.R2(b) in 30 monthly instalments. True, the second respondent has withdrawn Ext.P7 writ petition later. But, the facts sworn to by the second respondent indicates beyond doubt that the case set up by the petitioner in the writ petition that the second respondent has not offered 85 times of the monthly rent towards interest free security deposit is false. Even assuming that the second respondent has not made the offer mentioned in Ext.R2(b), merely for the reason that there was no other bidder for the shop room in question, she cannot claim that she was entitled to allotment of the said shop room. There is, therefore, absolutely no basis for the contention that the second respondent has not offered 85 times of the monthly rent towards the interest-free security deposit. As noted above, even though the contention raised by the second respondent that she has not offered 85 times of the monthly rent R.P.No.923 of 2016 in W.P.(c).No.16228 of 2015 : 12 : towards security deposit pursuant to the notice published by the Corporation for allotment has not been considered in the writ petition, in so far as it is now found that the said contention was raised without any basis and that even otherwise, she was not entitled to the allotment claimed by her in the Building, the review petition is only to be dismissed and I do so.
P.B.SURESH KUMAR JUDGE rsr