Kerala High Court
Saju T.B vs State Of Kerala
Author: Shaji P. Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 17TH DAY OF OCTOBER 2016/25TH ASWINA, 1938
WP(C).No. 3199 of 2016 (Y)
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PETITIONER(S):
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1. SAJU T.B., AGED 42,
S/O.BALAKRISHNAN, THUNDATHIL HOUSE,
MULAVUKADU VILLAGE, KANAYANNUR TALUK,
ERNAKULAM DISTRICT. 682 504.
2. A.D.GIREESH, AGED 41,
S/O.DHARMAN, ALLAPARAMBIL, CHERAI,
PALLIPPURAM VILLAGE, KOCHI TALUK,
ERNAKULAM DISTRICT. 683 514.
BY ADVS.SRI.VARGHESE C.KURIAKOSE
SRI.P.J.JOSE
SRI.K.O.MANUEL (KOPRAMB)
SRI.V.P.PAULOSE
SMT.SEENU SADIQUE
RESPONDENTS:
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1. STATE OF KERALA
REPRESENTED BY SECRETARY, DEPARTMENT OF TOURISM,
SECRETARIAT, THIRUVANANTHAPURAM.
2. THE DIRECTOR
DEPARTMENT OF TOURISM, STATE OF KERALA,
THIRUVANANTHAPURAM - 695 001.
3. THE DISTRICT TOURISM PROMOTION COUNCIL
OFFICE OF THE DTPC, PARK AVENUE, KOCHI 682 011,
REPRESENTED BY ITS SECRETARY.
4. THE CHAIRMAN
THE DISTRICT TOURISM PROMOTION COUNCIL
OFFICE OF THE DTPC, PARK AVENUE, KOCHI 682 011.
WP(C).No. 3199 of 2016
5. THE DISTRICT COLLECTOR
CIVIL STATION, ERNAKULAM DISTRICT,
KAKKANAD, KOCHI 682 030.
6. THE REVENUE DIVISIONAL OFFICER & SUB COLLECTOR
OFFICE OF THE RDO, FORT KOCHI 682 001.
7. PALLIPPURAM GRAMA PANCHAYAT
GRAMA PANCHAYAT OFFICE, PALLIPPURAM, REPRESENTED BY
ITS SECRETARY. 683 514.
R2, R3 & R4 BY ADV. SRI.V.B.HARI NARAYAN, SC,
DISTRICT TOURISM PROMOTION COUNCIL
R1, R5 AND R6 BY SENIOR GOVERNMENT PLEADER
SRI. T.K. ARAVINDKUMAR BABU
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 17-10-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 3199 of 2016 (Y)
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APPENDIX
PETITIONERS' EXHIBITS
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EXHIBIT P1. COPY OF THE AGREEMENT DATED 1.3.09
BEARING NO. 19/08-09 IN RELATION TO KIOSK NO.B IN
THE NAME OF THE 2ND PETITIONER.
EXHIBIT P2. COPY OF THE AGREEMENT ENTERED INTO IN
RELATION TO KIOSK NO.A IN THE NAME OF THE IST
PETITIONER.
EXHIBIT P2. COPY OF THE STATEMENT OF ELECTRICITY
CHARGES ISSUED BY THE 3RD RESPONDENT FOR THE
PERIOD FROM MARCH 2009 TO DECEMBER 2010.
EXHIBIT P4. COPY OF THE MODIFIED BILL DATED
17.6.11.
EXHIBIT P5. COPY OF THE LETTER TO THE ASSISTANT
EXECUTIVE ENGINEER OF THE KERALA STATE ELECTRICITY
BOARD.
EXHIBIT P6. COPY OF THE LETTER DATED 12.10.11.
EXHIBIT P7. COPY OF THE LETTER TO THE SECERETARY
OF THE 3RD RESPONDENT.
EXHIBIT P8. COPY OF THE OBJECTION BY THE 3RD
RESPONDENT DATED 13.8.12.
EXHIBIT P9. COPY OF THE NOTICE DATED 24.8.12.
EXHIBIT P10. COPY OF THE RECEIPT DATED 24.8.12.
EXHIBIT P11. COPY OF THE RECEIPT ISSUED BY THE 3RD
RESPONDENT IN RESLECT OF KIOSK A DATED 18.10.12.
EXHIBIT P12. COPY OF THE REPRESENTATION DATED
18.10.12 GTVEN BY THE PETITIONERS TO THE
RESPONDENTS NO. 4 AND 5.
EXHIBIT P13. COPY OF THE INTERIM ORDER IN WPC
30121/12 DATED 2.1.13.
EXHIBIT P14. COPY OF THE RECEIPT OF RS.100,000/-.
EXHIBIT P15. COPY OF THE LETTER DATED 7.1.16 TO
THE 2ND RESPONDENT.
WP(C).No. 3199 of 2016
EXHIBIT P16. COPY OF THE REPRESENTATION DATED
14.1.16 TO THE SECRETARY OF THE 3RD RESPONDENT FOR
EXTENSION.
EXHIBIT P17. COPY OF THE REPRESENTATION DATED
19.1.16 ISSUED BY THE PETITIONERS TO RESPONDENTS
NO. 5 AND 6 FOR EXTENSION OF THE PERIOD.
EXHIBIT P18. COPY OF THE COMMUNICATION DATED
21.1.16 ISSUED BY THE 5TH RESPONDENT TO THE 6TH
RESPONDENT FOR ACTION.
EXHIBIT P19. COPY OF THE AUCTION NOTICE DATED
4.1.16 ISSUED BY THE RESPONDENTS NO.3 TO 6.
EXHIBIT P20. TRUE COPY OF THE NOTICE WITH REPLY
DATED 22.01.2016 ISSUED BY THE SECRETARY, DISTRICT
TOURISM PROMOTION COUNCIL, ERNAKULAM, 3RD
RESPONDENT.
EXHIBIT P21: TRUE COPY OF THE EVICTION ORDER
PASSED BY THE 6TH RESPONDENT DATED 01.03.2016.
EXHIBIT P22 : TRUE COPY OF THE LETTER ISSUED BY THE
DISTRICT TOURISM PROMOTION COUNCIL TO MAKE PAYMENT
OF A SUM OF RS.1,28,398/- DATED 20.04.2016 TO THE
PETITIONERS.
RESPONDENTS' EXHIBITS : NIL
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//TRUE COPY//
P.A. TO JUDGE
smv
SHAJI P. CHALY, J.
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W.P.(C). No. 3199 of 2016
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Dated this the 17th day of October, 2016
JUDGMENT
This writ petition is filed by the petitioners seeking to quash Ext.P19 and for other related reliefs.
2. Material facts for the disposal of the writ petition are as follows; 3rd respondent was maintaining two kiosks at Cherai Beach. In the Tsunami onslaught, both kiosks were destroyed, subsequently the same was rendered useless. Therefore, 3rd respondent invited tenders, pursuant to which, petitioners appeared before the 3rd respondent, which led to Exts.P1 and P2 agreement. The said agreement, according to the petitioners, is one which is captioned as build, operate and transfer. By expending money, the kiosks were reconstructed, operated and after the period transferred back. According to the petitioners, the consideration was fixed in such a manner that the expenditure had to be reimbursed. However, by the inaction, lack of support and W.P.(C).3199 of 2016 2 failure to render electricity and building, huge additional expenses were incurred, which is not taken care of in Exts.P1 and P2 agreements. Therefore, according to the petitioners, extension of period in Exts.P1 and P2 by a like period is necessary. However, respondent Nos. 2 to 6 have taken steps to tender the right of operation of the kiosks under Ext.P19. It is in this background challenging Ext.P19 this writ petition is filed.
3. Third respondent has filed a statement refuting the allegations and claims and demands made by the petitioners. It is also stated that the two kiosks at Cherai Beach were entrusted to the petitioners on BOT basis for a period of 7 years w.e.f. 1.3.2009. The monthly rental for each kiosks was fixed at Rs.2,300/-, out of which Rs.1,800/- was adjusted towards the construction costs of the kiosks undertaken by the petitioners at Rs.1,50,000/- each. Thus the actual amount paid by the petitioners towards the monthly rent was only Rs.500/- and the remaining amount was being adjusted W.P.(C).3199 of 2016 3 towards construction cost. Petitioners having thus entered into an agreement with the 3rd respondent for running the kiosks for a period of 7 years and having profited from running the business for a long period of 7 years cannot now turn around and contend that, they need a further period of 7 years to recoup the alleged loss said to be sustained by them. Since the period of lease expired on 29.02.2016, Ext.P19 notice was issued inviting tenders from the public. It is further contended that, the statement in the writ petition that, 3rd respondent provided illegal electricity connection to the kiosks from the existing high mast lights in the beach is absolutely false and incorrect. The petitioners had clandestinely took an unauthorized connection without the knowledge of the 3rd respondent as well as the KSEB authorities. On coming to know of the same, KSEB authorities initiated action against the petitioners to recover huge amounts towards electricity charges due from the petitioners. According to the 3rd respondent, 3rd respondent W.P.(C).3199 of 2016 4 has no manner of liability to pay the electricity charges or other expenses. It is further contended, both parties are bound by the terms and conditions of the agreements. Therefore, 3rd respondent seeks dismissal of the writ petition.
4. Heard learned counsel for the petitioner, learned Senior Government Pleader as well as counsel appearing for 3rd respondent and perused the documents on record and the pleadings put forth by the respective parties.
5. It is an admitted fact that as per Exts.P1 and P2, a build, operate and transfer agreement was executed by and between the petitioners and the 3rd respondent. It is also an admitted fact, the period as per Exts.P1 and P2 expired and it was consequent to the same, 3rd respondent has invited tenders by issuing Ext.P19. Therefore, merely because petitioners contend that, the petitioners were unable to recoup the amount expended for the construction of kiosks is not a ground sustainable for the petitioners, to have the agreement period continued, to recoup the loss. If the W.P.(C).3199 of 2016 5 petitioners have suffered with any loss, it is for the petitioners to approach a civil court and seek appropriate statutory remedy. On the other hand learned counsel for 3rd respondent submitted that, pursuant to Ext.P19, several offers were received and the successful bidder was identified, entered agreement and already a successful bidder started operating the kiosks.
6. Taking note of the respective submissions made across the Bar, I am satisfied that there is no illegality on the part of the 3rd respondent in issuing Ext.P19 tender notification inviting tenders for running kiosks. Therefore, there are no circumstances pointed out by the petitioners in order to enable this court to exercise the power of discretion under Article 226 of the Constitution of India.
Writ petition fails and accordingly it is dismissed.
Sd/-
SHAJI P. CHALY JUDGE smv 17.10.2016