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2024 DIGILAW 1608 (KER)

RAJESH P. R. S/O RAJAN v. STATE OF KERALA

2024-12-06

ANIL K.NARENDRAN, MURALEE KRISHNA S.

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JUDGMENT : ANIL K. NARENDRAN, J. 1. The petitioner, who is a Kuthaka holder in respect of Kuthaka item No. 136 in the list of Kuthaka items, which forms part of the e-tender notification dated 19.07.2024 issued by the additional 5th respondent Devaswom Commissioner, Travancore Devaswom Board, in respect of Sabarimala Devaswom, for the year 1200ME (2024-25), who has been issued with Ext.P7 Kuthaka certificate No. 196/24 dated 15.11.2024 by the 3rd respondent Executive Officer, Sabarimala, has filed this writ petition invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2nd respondent Travancore Devaswom Board and the 3rd respondent Executive Officer to grant him permission to operate a soda manufacturing and distribution unit during Mandala-Makaravilakku festival season of 1200ME (2024-25) and to issue necessary order, licence or permit without any delay. The petitioner has also sought for a writ of mandamus commanding the 2nd respondent Board to consider Exts.P4 and P5 applications dated 17.11.2024 and Ext.P6 application dated 20.11.2024, after affording him an opportunity of being heard, within a time limit to be fixed by this Court. 2. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for the 1st respondent State and the additional 4th respondent Senior Deputy Director, Kerala State Audit Department, Travancore Devaswom Board Audit and the learned Standing Counsel for Travancore Devaswom Board for respondents 2, 3 and also additional 5th respondent. 3. Going by the averments in the writ petition, originally the petitioner’s grandfather was the Kuthaka holder in respect of the Kuthaka item in question, who was conducting hotel by name ‘Ayyappas’ at Marakkoottam. After his demise, the petitioner’s father Ranjan Pillai was the Kuthaka holder in respect of the said Kuthaka item, who died in the year 2018. Thereafter, the petitioner is the Kuthaka holder in respect of the said Kuthaka item for the subsequent years. In the year 2016, by Ext.P1 order dated 03.12.2016 of the 2nd respondent Board, the petitioner’s father was granted permission to start a soda manufacturing and distribution unit at Hotel No. 3-Marakoottam, subject to the conditions stipulated therein. Ext.P1 order reads thus: 4. In the year 2016, by Ext.P1 order dated 03.12.2016 of the 2nd respondent Board, the petitioner’s father was granted permission to start a soda manufacturing and distribution unit at Hotel No. 3-Marakoottam, subject to the conditions stipulated therein. Ext.P1 order reads thus: 4. Pursuant to the direction contained in Ext.P1 order dated 03.12.2016, the 3rd respondent Executive Officer issued Ext.P2 communication dated 03.12.2016 to the petitioner’s father Rajan Pillai granting permission for staring soda manufacturing and distribution unit at Hotel No. 3-Marakoottam. The document marked as Ext.P3 is a copy of the Kuthaka certificate dated 24.11.2022 issued to the petitioner by the 3rd respondent Executive Officer, in respect of soda manufacturing and distribution unit at Hotel No. 3- Marakoottam with Serial No. 138 in the list of Kuthaka items, which forms part of the tender notification issued for the year 1198ME (2022-23). For the year 1200ME (2024-25), the petitioner submitted Ext.P4 application dated 17.11.2024 seeking permission to start soda manufacturing and distribution unit at Hotel No. 3-Marakoottam. The petitioner has also submitted Ext.P5 representation dated 17.11.2024 before the Special Commissioner, Sabarimala. Ext.P4 application was followed by Ext.P6 application dated 20.11.2024 before the 3rd respondent Executive Officer. The document marked as Ext.P7 is a copy of the Kuthaka certificate issued by the 3rd respondent Executive Officer in respect of Kuthaka item No. 136-Hotel No. 3-Marakoottam, for the year 1200ME (2024-25). 5. The issue that arises for consideration in this writ petition is as to whether the petitioner, who is the Kuthaka holder in respect of Kuthaka item No. 136-Hotel No. 3-Marakoottam, for the year 1200ME (2024-25) is legally entitled to seek a writ of mandamus commanding respondents 2 and 3 to grant permission to operate a soda manufacturing and distribution unit at Hotel No. 3-Marakoottam covered by Ext.P7 Kuthaka certificate dated 15.11.2024. 6. The description of Kuthaka item No. 136-Hotel No. 3 at Marakoottam - in the list of Kuthaka items, which forms part of the e-tender notification dated 19.07.2024 issued by the additional 5th respondent Devaswom Commissioner reads thus: 7. The petitioner, who is the Kuthaka holder in respect of the Kuthaka right to conduct Hotel No. 3-Marakoottam has no legal right to seek permission of the 2nd respondent Travancore Devaswom Board or the 3rd respondent Executive Officer to operate a soda manufacturing and distribution unit at Hotel No. 3-Marakoottam. The petitioner, who is the Kuthaka holder in respect of the Kuthaka right to conduct Hotel No. 3-Marakoottam has no legal right to seek permission of the 2nd respondent Travancore Devaswom Board or the 3rd respondent Executive Officer to operate a soda manufacturing and distribution unit at Hotel No. 3-Marakoottam. The Kuthaka right granted to the petitioner, vide Ext.P7 Kuthaka certificate, does not enable him to operate a soda manufacturing and distribution unit at Marakoottam. Soda manufacturing and distribution unit at Marakoottam is not a Kuthaka item in the list of Kuthaka items which forms part of the e-tender notification dated 19.07.2024 issued by the additional 5th respondent Devaswom Commissioner. 8. In Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh, (1977) 4 SCC 145 , a Three-Judge Bench of the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. 9. In Oriental Bank of Commerce v. Sunder Lal Jain, (2008) 2 SCC 280 the Apex Court held that in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed that the principles on which a writ of mandamus can be issued have been stated in “The Law of Extraordinary Legal Remedies” by F.G. Ferris and F.G. Ferris, Jr. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. 10. 10. In State of U.P. v. Harish Chandra, (1996) 9 SCC 309 the Apex Court held that under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. 11. In Bhaskara Rao A.B. v. CBI, (2011) 10 SCC 259 the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The Courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. 12. Ext.P7 Kuthaka certificate issued by the 3rd respondent Executive Officer in respect of Kuthaka item No. 136-Hotel No. 3 at Marakoottam - in the list of Kuthaka items which forms part of the e-tender notification dated 19.07.2024 issued by the additional 5th respondent Devaswom Commissioner will not enable the petitioner to operate a soda manufacturing and distribution unit at the hotel covered by that Kuthaka item. Further, soda manufacturing and distribution unit at Marakoottam is not a Kuthaka item in the list of Kuthaka items which forms part of the aforesaid e-tender notification dated 19.07.2024. In such circumstances, the petitioner has no legal right to operate a soda manufacturing and distribution unit at Marakoottam during Mandala-Makaravilakku festival season of 1200ME (2024-25) and as such he cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India to compel the 2nd respondent Travancore Devaswom Board and the 3rd respondent Executive Officer, by a writ of mandamus to act upon the request made by him in Exts.P4 and P6 applications for operating a soda manufacturing and distribution unit at Marakoottam. 13. In such circumstances, the petitioner is not entitled to any of the reliefs sought for in this writ petition. 13. In such circumstances, the petitioner is not entitled to any of the reliefs sought for in this writ petition. The writ petition fails and the same is accordingly dismissed. 14. As borne out from the pleadings and materials on record, during previous Mandala-Makaravilakku festival seasons, the petitioner and his father were granted permission to operate soda manufacturing and distribution unit at Marakoottam, though it was not a Kuthaka item in the list of Kuthaka items which forms part of the tender/e-tender notifications issued by the additional 5th respondent Devaswom Commissioner. The action of the 2nd respondent Travancore Devaswom Board and the 3rd respondent Executive Officer, Sabarimala in granting such permission to the petitioner and his father, openly flouting the tender conditions, without conducting a tender process, is per se arbitrary and illegal. The additional 4th respondent Senior Deputy Director, Kerala State Audit Department, Travancore Devaswom Board Audit is directed to conduct a detailed enquiry into the said issue, after verifying the relevant records, and submit a report before this Court, within one month from the date of receipt of a certified copy of this judgment, which shall be numbered as DBAR and listed before the Devaswom Bench.