Kuttan Unnithan vs Travancore Devaswom Board on 1 September, 2022

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Kerala High Court

Kuttan Unnithan vs Travancore Devaswom Board on 1 September, 2022

The petitioner, who is the holder of kuthaka right for selling flower garlands in Chettikulangara Devi Temple for the year 2022- 23, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents to refund Rs.2,91,550/-, remitted on 30.03.2019 as earnest money deposit for participating in the auction for the very same kuthaka right in the said temple for the year 2019-20, with 12% interest per annum since 18.03.2022.

2. On 20.05.2022, when this writ petition came up for admission, the learned Standing Counsel for Travancore Devaswom Board, on instructions, submitted that the petitioner has defaulted payment of a sum of Rs.1,75,000/- together with interest towards the balance bid amount, which was payable on or before 30.09.2020 for the year 2021-22. The learned Standing Counsel sought time to file statement.

3. On 07.06.2022, during the course of arguments, it was brought to the notice of this Court that the petitioner had earlier approached this Court by filing W.P.(C)No.21302 of 2021, which was disposed of by the judgment dated 11.10.2021. The W.P.(C)NO.16423 OF 2022 3 operative portion of the said judgment reads thus;

"(i) within three weeks from the date of receipt of a certified copy of this judgment, the petitioner shall remit a sum of Rs.3,50,000/- with the 4th respondent Administrative Officer of Chettikulangara Devaswom, towards his liability to pay installment, in terms of the tender conditions for the sale of poomala (garlands) in Chettikulangara Devi Temple, for the year 2021-22. On such payment being made, the 2nd respondent shall consider and pass appropriate orders on Ext.P5 representation made by the petitioner, strictly in accordance with law, as expeditiously as possible, at any rate, within a further period of two weeks.

(ii) the 4th respondent shall keep in abeyance any coercive steps against the petitioner for recovering the balance dues in respect of the contract in question, till expiry of the time limit fixed in this judgment for the 2nd respondent to consider and take a decision on Ext.P5 representation, in case the petitioner remits a sum of Rs.3,50,000/- with the 4th respondent, within the time limit specified as above."

4. Thereafter, the petitioner filed I.A.No.1 of 2021 seeking enlargement of the time limit fixed in the said judgment for payment of the balance bid amount of Rs.1,50,000/-, out of 50% of the amount ordered to be deposited in the judgment dated 11.10.2021 in W.P.(C)No.21302 of 2021. In the said interlocutory application, this Court passed an order dated W.P.(C)NO.16423 OF 2022 4 08.12.2021. Paragraphs 7 and 8 of the said order read thus;

"7. The learned counsel for the petitioner would contend that only due to the financial stringency created on account of pandemic situation and the consequent decrease in the number of devotees coming to the Temple, the petitioner was not able to make payment in time, inspite of his earnest efforts. The period of the contract is up to 31.03.2022. After filing of this application, the petitioner has remitted the balance amount remained to be paid as per the directions contained in the judgment dated 11.10.2021. Taking into account all such aspects, we are of the view that the delay can be condoned on the condition of payment of 50% of the balance amount of Rs.3,50,000/-, which remains to be paid by the petitioner within one week from today. The interlocutory application is, accordingly, allowed on that condition.

8. If the petitioner makes remittance of the amount as above, the 2nd respondent shall consider and pass appropriate orders on Ext.P5 representation made by the petitioner, strictly in accordance with law, as expeditiously as possible, at any rate, within a further period of two weeks."

5. Despite the specific directions contained in the judgment dated 11.10.2021 in W.P.(C)No.21302 of 2021 and the order dated 08.12.2021, the Secretary of the 1st respondent Board delayed the disposal of the representation made by the petitioner and the order was passed only on 26.05.2022 W.P.(C)NO.16423 OF 2022 5 (R.O.C.No.459/21/NS), whereby the request made by the petitioner for absolving him from the payment of the balance bid amount for the year 2021-22 stands rejected. The balance bid amount of Rs.1,75,000/- for the year 2021-22, which is yet to be paid by the petitioner along with 18% interest, comes to Rs.2,11,492/-.

6. On 07.06.2022, while listing this writ petition for further consideration on 23.06.2022, this Court directed the Secretary of the 1st respondent Board to file an affidavit, explaining the facts and circumstances before the next posting date.

7. On 23.06.2022, when this writ petition came up for consideration, the 1st respondent has filed a counter affidavit, opposing the reliefs sought for in this writ petition. Paragraphs 2 to 7 of that counter affidavit read thus;

"2. It is submitted that this Hon'ble Court as per judgment dated 11.10.2021 in W.P.(C)No.21302 of 2021 dated 11.10.2021 directed the petitioner to remit a sum of Rs. 3,50,000/- with the 4th respondent, the Administrative Officer Chettikulangara Devaswom within three weeks from the date of receipt of copy of the judgment towards the balance amount in terms of the tender conditions for the sale of poomala (Garlands) in Chettikulangara Devi W.P.(C)NO.16423 OF 2022 6 temple for the year of 2021-22. It was further directed that this respondent shall consider the representation of the petitioner within a further period of two weeks from the date of such payment. It was also directed that, if the petitioner remits the payment as above, the coercive steps against the petitioner shall be kept in abeyance till a decision on his representation is taken as directed above. But the petitioner didn't remit the amount within the time fixed by this Hon'ble Court.

3. It is submitted that the petitioner thereafter filed I.A. No.01 of 2021 seeking enlargement of the time limit fixed in the judgment for payment of balance amount. This Hon'ble Court extended the time as per order dated

08.12.2021 on condition that, if the petitioner remits 50% of the balance amount of Rs.3,50,000/- within one week, his representation shall be considered and orders thereon shall be passed within a further period of two weeks.

4. It is submitted that the petitioner thereafter remitted Rs.1,75,000/- on 13.12.2021. Thereupon, the representation of the petitioner was considered. In the representation he has requested to waive the bid amount during the period the temple was closed. To consider the request of the petitioner, a report from the Devaswom Commissioner was required. Hence the Devaswom Commissioner was asked to furnish a report in the matter. There was a slight delay in getting the report. On getting the report from the Devaswom Commissioner, order, R.O.C.No.459/21/Ns dated 26.05.2022, was passed rejecting the request of the petitioner.

5. It is respectfully submitted that the auction proceedings W.P.(C)NO.16423 OF 2022 7 for the period 2022-23 started on 03.03.2022. But no one participated in the E Tender. Hence, E-Tender was conducted again on 14.03.2022 and no one participated on that day also. Since, no one participated in the E- Tender, open tender was conducted on 22.03.2022. But no one took part in the open tender also. Again open tender was conducted on 30.03.2022 and that attempt also was in vain.

6. The decision to call a third open tender was taken since there were no participants in the earlier tenders. At this juncture, the petitioner informed that he was ready to participate in the tender if permitted. Accordingly, the Administrative Officer reported the same to the Devaswom Commissioner seeking approval for participating him in the tender proceedings and the Devaswom Commissioner granted approval for the same.

7. On getting approval from the Devaswom Commissioner, open tender was held again on 31.03.2022. The petitioner participated in the tender and offered an amount of Rs.16,97,000/-. The previous year's auction amount was Rs.18,22,300/-. Since nobody else came forward to participate in the tender, there was no other option than accepting the petitioner's offer. It is also expected that this will help in recovering the balance amount due from the petitioner in the last year's auction. Now an amount of Rs.1,75,000/- is due from the petitioner towards the balance amount payable in last year's auction (2021-22). Steps are being initiated to recover the above amount from the petitioner."

8. On 14.07.2022, the petitioner has filed a reply affidavit W.P.(C)NO.16423 OF 2022 8 producing therewith Exts.P3 and P4. Paragraphs 2 to 4 of that reply affidavit read thus;

"2. I was the contractor for the sale of garlands in the year 2020-21 also. As a matter of fact, on 04.10.2021, I have preferred W.P.(C)No.21302 of 2021 with a prayer for exempting me from the payment of contractual amount during the period in which the temple was closed due to Covid-19 pandemic during the financial year 2021-22. On 11.10.2021, this Hon'ble Court disposed of the said writ petition directing me to remit a sum of Rs.3.5 lakhs with the 2nd respondent herein within 3 weeks from the date of order and further directed the 1st respondent herein to consider my request for exempting from the payment referred above. The true copy of the said judgment is Ext.P3. But I could not properly remit the money as directed by this Hon'ble court. However, on 06.11.2021, I have remitted Rs.2 lakhs. Thereafter, I have applied for enlargement of time for remitting the balance amount of Rs.1.5 lakhs. However, after filing I.A.No.1 of 2021 for enlargement of time referred above, I have remitted the balance amount of Rs.1.5 lakhs also on 31.11.2021. Thereafter, on 08.12.2021 this Hon'ble Court was pleased to enlarge the time on a condition to pay the 50% of the remaining Rs.3.5 lakhs dues within a period of 1 week, and further directed to consider my request as expeditiously as possible, at any rate, within a further period of two weeks therefrom. The true copy of the said order is produced herewith and marked as Ext.P4.

3. In compliance of the said direction, on 13.12.2021, I W.P.(C)NO.16423 OF 2022 9 have remitted Rs.1.75 lakhs. Therefore, the 1st respondent has to consider my request within 21 days from 08.12.2021, which expired on 29.12.2021. As a matter of fact, I have believed that my request was approved by the 1st respondent.

4. But on 23.06.2022, the 1st respondent filed an affidavit before this Hon'ble court wherein it is stated that on 26.05.2022, my prayer for exemption was rejected. I came to know the said rejection through the said affidavit only. The authorities do not intimated me about the rejection so far. However, I am willing to abide by the said order of the 1st respondent on a request to exempt me from payment of interest."

9. On 26.07.2022, when this writ petition came up for consideration, the learned Standing Counsel for Travancore Devaswom Board sought time to file an affidavit of the Secretary of the 1st respondent Board, producing therewith the notices issued to the petitioner demanding payment of the balance bid amount.

10. Heard the learned counsel for the petitioner, the learned Standing Counsel for Travancore Devaswom Board for respondents 1 and 2 and also the learned Senior Government Pleader for the 3rd respondent Deputy Director.

11. The learned counsel for the petitioner would contend that the request made by the petitioner for waiving the payment W.P.(C)NO.16423 OF 2022 10 of the balance bid amount for the kuthaka right to sell flower garlands in Chettikulangara Devi Temple for the year 2021-22 was pending consideration before the Secretary of the 1st respondent Board, pursuant to the directions contained in Ext.P3 judgment of this Court dated 11.10.2021 in W.P.(C)No.21302 of 2021. That request was turned down only on 26.05.2022 and in such circumstances, the Board is not justified in demanding penal interest for the balance bid amount of Rs.1,75,000/- for the year 2021-22. The petitioner is entitled to a favourable order for waiving payment of the balance bid amount for the year 2021- 22, considering the situation prevailing in the State due to Covid- 19 pandemic.

12. Per contra, the learned Standing Counsel for Travancore Devaswom Board would contend that, the question as to whether the petitioner is entitled for waiver of payment of the balance bid amount of Rs.1,75,000/-, for the year 2021-22, is covered against him by various judgments of this Court on similar issues. Though there is a prohibition in the tender conditions, whereby a defaulter cannot participate in the auction for kuthaka right in temples under the management of Travancore Devaswom Board, for the subsequent year, considering the fact that the W.P.(C)NO.16423 OF 2022 11 request made by the petitioner for waiving payment of the balance bid amount of Rs.1,75,000/- for the year 2021-22 was pending consideration before the 1st respondent Board, which was directed to be considered by Ext.P3 judgment of this Court dated 11.10.2021 in W.P.(C)No.21302 of 2021, the petitioner was awarded kuthaka right to sell garlands in Chettikulangara Devi Temple for the year 2022-23, by negotiation, when there were no takers for the said kuthaka item in the e-tender, which was followed by three open tenders.

13. Travancore-Cochin Hindu Religious Institutions Act, 1950 enacted by the State Legislature makes provision for the administration, supervision and control of incorporated and unincorporated Devaswoms and of other Hindu Religious Endowments and Funds. As per sub-section (3) of Section 1 of the Act, substituted by the Kerala Adaptation of Laws Order, 1956, Part I of the Act shall extend to Travancore, Part II of the Act shall extend to Cochin and Part III of the Act shall extend to the whole of the State of Kerala, excluding the Malabar District. Sabarimala Devaswom is an incorporated Devaswom mentioned in Schedule I of the Act, under Chengannur Group, Pathanamthitta Taluk.

14. Chapter II of the Act deals with the Travancore W.P.(C)NO.16423 OF 2022 12 Devaswom. Section 3 of the Act deals with vesting of administration in Board. Section 4 of the Act deals with constitution of the Travancore Devaswom Board. As per sub- section (2) of Section 4, the Board shall be a body corporate having perpetual succession and a common seal with power to hold and acquire properties for and on behalf of the incorporated and unincorporated Devaswoms and Hindu Religious Institutions and Endowments under the management of the Board.

15. Section 15 of the Act deals with vesting of jurisdiction in the Board. As per sub-section (1) of Section 15, subject to the provisions of Chapter III of Part I, all rights, authority and jurisdiction belonging to or exercised by the Ruler of Travancore prior to the first day of July, 1949, in respect of Devaswoms and Hindu Religious Endowments shall vest in and be exercised by the Board in accordance with the provisions of this Act. As per sub- section (2) of Section 15, the Board shall exercise all powers of direction, control and supervision over the incorporated and unincorporated Devaswoms and Hindu Religious Endowments under their jurisdiction.

16. 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 W.P.(C)NO.16423 OF 2022 13 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. Section 16 of the Act deals with supervision and control by the Board. As per Section 16, the Board shall, subject to the provisions of Part I of the Act, exercise supervision and control over the acts and proceedings of all officers and servants of the Board and of the Devaswom Department.

17. Section 24 of the Act deals with maintenance of Devaswoms, etc., out of Devaswom Fund. Section 27 of the Act deals with Devaswom properties. Section 31 of the Act deals with management of Devaswoms. As per Section 31, 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 W.P.(C)NO.16423 OF 2022 14 the conduct of the daily worship and ceremonies and of the festivals in every temple according to its usage.

18. 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 best advantage. Paragraph 4 of that decision reads thus;

"4. There is some controversy on the question whether Defendant 1 made an outright purchase of the suit property for and on behalf of the trust for Rs. 21,500 on April 19, 1959, or whether he intended to purchase it for himself and then decided to pass it on to the trust, for defendants have led their evidence to show that the property was allowed to be sold for Rs. 21,500/-, which was less than its market value, as it was meant for use by the trust and that Defendant 1 was not acting honestly when he palmed off the property to his son soon after by the aforesaid sale deed Ext.B13 dated July 14, 1960. The fact, however, remains W.P.(C)NO.16423 OF 2022 15 that Defendant 1 was the trustee of the property, and it was his duty to be faithful to the trust and to execute it with reasonable diligence in the manner an ordinary prudent man of business would conduct his own affairs. He could not therefore occasion any loss to the trust and it was his duty to sell the property, if at all that was necessary, to best advantage. It has in fact been well recognised as an inflexible rule that a person in a fiduciary position like a trustee is not entitled to make a profit for himself or a member of his family. It can also not be gainsaid that he is not allowed to put himself in any such position in which a conflict may arise between his duty and personal interest, and so the control of the trustee's discretionary power prescribed by Section 49 of the Act and the prohibition contained in Section 51 that the trustee may not use or deal with the trust property for his own profit or for any other purpose unconnected with the trust, and the equally important prohibition in Section 52 that the trustee may not, directly or indirectly, buy the trust property on his own account or as an agent for a third person, cast a heavy responsibility upon him in the matter of discharge of his duties as the trustee. It does not require much argument to proceed to the inevitable further conclusion that the Rule prescribed by the aforesaid sections of the Act cannot be evaded by making a sale in the name of the trustee's partner or son, for that would, in fact and substance, indirectly benefit the trustee. Where therefore a trustee makes the sale of a property belonging to the trust, without any compelling reason, in favour of his son, without obtaining the permission of the court concerned, it is the duty of the W.P.(C)NO.16423 OF 2022 16 court, in which the sale is challenged, to examine whether the trustee has acted reasonably and in good faith or whether he has committed a breach of the trust by benefitting himself from the transaction in an indirect manner. The sale in question has therefore to be viewed with suspicion and the High Court committed an error of law in ignoring this important aspect of the law although it had a direct bearing on the controversy before it."

(underline supplied)

19. In Rajani P. Kuttan v. State of Kerala [2021 (6) KHC 513] a Division Bench of this Court noticed that among the 1250 Temples managed by the Travancore Devaswom Board, only 60 major Temples are self-sufficient and the rest are being managed utilising the surplus income from Sabarimala Devaswom. The total number of sanctioned posts in various categories in the Travancore Devaswom Board is 5692 and the total number of pensioners is 5749. The major source of revenue of the Travancore Devaswom Board is the income received by way of offering by the devotees, the amount received from Vazhipadu and the revenue generated through the auction of temple premises for various activities in connection with rituals and festivals in the Temples. Among the 1250 temples managed by the Devaswom Board, only 60 major temples are self-sufficient, and the rest are being managed utilising the surplus income from W.P.(C)NO.16423 OF 2022 17 Sabarimala Devaswom. Paragraph 59 of the said decision reads thus;

"59. The Financial position of the Devaswom Board:-- The competent officer of the Devaswom Board filed an affidavit dated 14.06.2021 stating its financial position. It is submitted that there are 1250 temples under the Administrative Control of the Devaswom Board. The total number of sanctioned posts in various categories in the Devaswom Board is 5692, and the total number of pensioners is 5749. It is further submitted that the major sources of revenue of the Devaswom Board are the income received by way of offerings from devotees, the amount received from Vazhipadu, and the revenue generated through the auction of the temple premises for various activities in connection with rituals and festivals in the temples. Besides this, the Devaswom Board gets an approximate sum of 14 crores per annum by way of the rent of the buildings owned by it. The annual contribution from the State Government under Article 290A of the Constitution of India is Rs. 80 lakhs. It is further submitted that among the 1250 temples managed by the Devaswom Board, only 60 major temples are self-sufficient, and the rest are being managed utilising the surplus income from Sabarimala Devaswom. Now, due to the spread of the Covid-19 pandemic, the temples remain closed, and the major source of income has come down. The Devaswom Board is finding it difficult even to pay the salary of the existing employees. The pleadings regarding the financial position of the W.P.(C)NO.16423 OF 2022 18 Devaswom Board in the affidavit dated 14.06.2021 have not been controverted by the petitioners."

(underline supplied)

20. In A.A. Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482] a Three-Judge Bench of the Apex Court held that the properties of deities, temples and Devaswom Boards are required to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of 'fences eating the crops' should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation.

21. In Travancore Devaswom Board v. Mohanan Nair [(2013 (3) KLT 132] a Division Bench of this Court noticed that W.P.(C)NO.16423 OF 2022 19 in A.A. Gopalakrishnan [(2007) 7 SCC 482] the Apex Court emphasised that it is the duty of the courts to protect and safeguard the interest and properties of the religious and charitable institutions. The relevant principles under the Hindu law will show that the Deity is always treated similar to that of a minor and there are some points of similarity between a minor and a Hindu idol. The High Court therefore is the guardian of the Deity and apart from the jurisdiction under Section 103 of the Land Reforms Act, 1957 viz. the powers of revision, the High Court is having inherent jurisdiction and the doctrine of parents patriae will also apply in exercising the jurisdiction. Therefore, when a complaint has been raised by the Temple Advisory Committee, which was formed by the devotees of the Temple, about the loss of properties of the Temple itself, the truth of the same can be gone into by the High Court in these proceedings.

22. In Suneesh K.S. [ILR 2022 (1) Ker. 1091: 2022 SCC OnLine Ker 611] we held that, the properties of deities and temples are required to be protected and safeguarded from usurpation or encroachment in any manner. Persons entrusted with the duty to manage such properties should be vigilant to prevent such usurpation or encroachment. When such usurpation W.P.(C)NO.16423 OF 2022 20 or encroachment is possible only with the passive or active collusion of the authorities concerned, such acts of 'fences eating the crops' should be dealt with sternly. The officers concerned and also the devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from usurpation or encroachment, wrongful claims or misappropriation. Therefore, the concerned Assistant Devaswom Commissioner and the Administrative Officer shall take stern action against those who have defaulted payment of instalments in respect of the Kuthaka items, in violation of the tender conditions, if found necessary, after seeking police assistance. If any such request is received, it is the duty of the concerned Station House Officer to render necessary assistance to the concerned Assistant Devaswom Commissioner or the Administrative Officer, in order to protect and safeguard the properties of deities and temples from usurpation or encroachment in any manner. Proceedings under clause (23) of the tender conditions shall also be initiated against such defaulters, for black-listing. In the said decision rendered on 01.02.2022, the Secretary of the Travancore Devaswom Board W.P.(C)NO.16423 OF 2022 21 was directed to issue a circular, within one month from the date of receipt of a certified copy of that judgment, requiring the concerned Assistant Devaswom Commissioner and the Administrative Officer to take stern action against those who have defaulted payment of instalments in respect of the Kuthaka items, in violation of the tender conditions.

23. In Abu K.S. v. Travancore Devaswom Board and others [2022 SCC OnLine Ker 1642] [judgment dated 09.02.2022 in W.P.(C)No.2254 of 2022] a Division Bench of this Court, in which both of us were parties, was dealing with a case in which Kuthaka right for running Aymanam Sri Narasimha- swami Auditorium (sadyalayam) constructed by the Travancore Devaswom Board was auctioned for a period of two years from 01.08.2019 to 31.07.2021, for Rs.2,41,000/-. The average monthly income generated from the said building constructed by the Travancore Devaswom Board by spending several lakhs of rupees was only Rs.10,000/-. Relying on the law laid down by the Apex Court in M.V. Ramasubbiar [(1979) 2 SCC 65] this Court held that, while auctioning the right for running that sadyalayam, the Travancore Devaswom Board and its officials have to ensure that proper income to the Board is generated from the said W.P.(C)NO.16423 OF 2022 22 building. In case of any default committed by the successful bidder in remitting the balance auction amount, electricity charges or any other statutory dues payable as per the tender conditions, the concerned Assistant Devaswom Commissioner and the Sub Group Officer have to take prompt action against such bidder and the said fact has to be promptly reported to the concerned officer in the Estate Division of the Travancore Devaswom Board.

24. In Abu K.S. [2022 SCC OnLine Ker 1642] the writ petitioner, the successful bidder, remitted only 50% of the auction amount on 18.07.2019. Though he had defaulted payment of the balance amount of Rs.1,20,500/-, he was permitted to continue to occupy the sadyalayam, even beyond the period of auction, i.e., 31.07.2021. The concerned Assistant Commissioner and the Sub Group Officer have not taken any action against the successful bidder till the order of this Court dated 01.02.2022, whereby they were directed to take over possession of the sadyalayam forthwith, if found necessary with police assistance. In such circumstances, in the said decision, this Court deprecated in the strongest words the conduct of the concerned Assistant Commissioner and the Sub Group Officer W.P.(C)NO.16423 OF 2022 23 and also the concerned officers in the Estate Division of the Travancore Devaswom Board in taking no action against the successful bidder, who was a defaulter. In the said decision, this Court found that, the concerned officers of the Travancore Devaswom Board have not shown reasonable diligence in the manner of an ordinary prudent man of business to conduct his own affairs. Since, such irregularities in the conduct of auction for running auditoriums/sadyalayams in the temples under the management of the Travancore Devaswom Board cannot be permitted in future, this Court directed Registry to initiate suo motu proceedings in that matter.

25. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the petitioner is not entitled for waiver of payment of the balance bid amount of Rs.1,75,000/- in respect of kuthaka right for selling flower garlands in Chettikulangara Devi Temple for the year 2021-22. As per the terms of the tender conditions the said amount towards balance bid amount ought to have been paid on or before 30.09.2020. Therefore, the petitioner, who has defaulted payment of the balance bid amount, is liable for payment of the said amount together with 18% penal interest from 01.10.2020. W.P.(C)NO.16423 OF 2022 24 Despite the fact that the petitioner has defaulted payment of the balance bid amount for the year 2021-22, the 1st respondent Board and its officials have not taken any steps to recover the balance bid amount together with penal interest from the petitioner, by initiating appropriate coercive steps. Instead, he was permitted to continue as kuthaka holder for the year 2021-

22. He was even granted kuthaka right to sell flower garlands in Chettikulangara Devi Temple for the year 2022-23, by negotiation, for an amount of Rs.16,97,000/-. As can be seen from the counter affidavit filed by the 1st respondent, for the year 2021-22 the petitioner auctioned the said kuthaka right for an amount of Rs.18,22,300/. During the course of arguments, it is submitted by the learned Standing Counsel for Travancore Devaswom Board that the petitioner has defaulted payment of the balance bid amount for the year 2022-23.

26. In the above circumstances, we find absolutely no merits in various contentions raised by the petitioner in this writ petition. The petitioner, who has defaulted payment of balance bid amount for the year 2021-22 amounting to Rs.1,75,000/- together with penal interest at the rate of 18% per annum from 01.10.2020, who has also defaulted payment of balance bid W.P.(C)NO.16423 OF 2022 25 amount for the year 2022-23 is not entitled for refund of a sum of Rs.2,91,550/- deposited as earnest money deposit in respect of the kuthaka right for the year 2019-20. The said amount has to be adjusted towards his liability for the balance bid amount for the year 2021-22 and that for the year 2022-23. The defaulted amount for 2021-22 has to be recovered from the petitioner together with 18% penal interest from 01.10.2020 and defaulted amount for the year 2022-23 has to be recovered from him together with 18% penal interest from the respective due dates. It is for the respondents 1 and 2 to take necessary steps in this regard, as expeditiously as possible, at any rate, within a period of two weeks from the date of receipt of a certified copy of this judgment. In case the petitioner has not chosen to make payment towards the balance bid amount for the year 2022-23 together with penal interest at the rate of 18% from the respective due dates, the 1st respondent Board through the competent officer shall initiate steps against the petitioner for terminating the contract and proceedings shall also be initiated against him for blacklisting, in accordance with the tender conditions. The 1st respondent Board shall conduct an enquiry through the concerned Deputy Commissioner as to the circumstances in which W.P.(C)NO.16423 OF 2022 26 the kuthaka right for selling flower garlands in Chettikulangara Devi Temple for the year 2022-23 was awarded to the petitioner, by negotiation, for an amount of Rs.16,97,000/-, as against the auction amount of Rs.18,22,300/-, for the previous year 2021- 22, during which period the petitioner was the successful bidder. Based on the report of the enquiry, the 1st respondent Board shall take necessary action against those who were responsible for the loss caused to the Board and steps shall be taken to recover the said amount. The exercise in this regard shall be completed, within a period of three months from the date of receipt of a certified copy of this judgment.

With the above directions, this writ petition is disposed of.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

P.G. AJITHKUMAR, JUDGE MIN W.P.(C)NO.16423 OF 2022 27 APPENDIX OF W.P.(C)NO.16423/2022 PETITIONER'S EXHIBITS:

Exhibit P1 TRUE COPY OF THE REQUEST (UNDATED) SUBMITTED BY THE PETITIONER.

Exhibit P2                TRUE COPY OF THE REQUEST DATED
                          18.03.2022 SUBMITTED BY THE PETITIONER
                          BEFORE THE 2ND RESPONDENT.

Exhibit P3                TRUE COPY OF THE JUDGMENT DATED
                          11.10.2021 IN WPC NO 21302/2021 THIS
                          HON'LE COURT

Exhibit P4                TRUE COPY OF THE ORDER 8.12.2021 IN WPC
                          NO 21302/2021 OF THIS HON'BLE COURT

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Kerala High Court