Brothers Industries vs Travancore Devaswom Board And Ors

K. Haripal, J

This is a writ petition filed under Article 226 of the Constitution of India.

The petitioner claims to be a partnership firm engaged in the business of procuring and processing coconut for the last three decades in Sabarimala.

From its experience, it is said that even though e-tenders were floated for the purpose of allotting monopoly rights for various business activities in

Sabarimala during the festival season, for the last several years such rights were never sold out in a single stretch; as a matter of fact, left out items

were auctioned by successive auctions; that such process would continue even after the commencement of the festival season. This time also,

pursuant to Ext.P1 notification, out of 216 items only one item was sold out in the first auction; in the second auction, only two items were sold out,

which necessitated publication of the third auction notice. The third auction notification was published in the website on 10.11.2020 following which

public auction was conducted on 12.11.2020. There also responses were poor. Thereafter, on 12.11.2020, instead of ordering re-e-tender, in the

evening itself tenderers were allowed to submit their rates and they were allowed to quote at unimaginably low rates viz., 2-3% of the tender value by

waiving 97-98%. Moreover, in this tender, persons were not insisted to deposit Earnest Money Deposit; EMD rate was considerably cut down;

auction amounts were abysmally low. He has produced a comparative chart in Ground-A of the writ petition, which shows that against the

approximate auction amount of Rs.5 crores last year, the tender value this year was only Rs.1,00,05,000/-. In other words, almost all the tenders were

confirmed at 2-3% of the tender value at a huge loss of 97-98%. Everything was done arbitrarily and illegally. Re-tender was conducted at short

notice without giving sufficient opportunity to the tenderers. All the tenders submitted on 12.11.2020 were accepted, suffering 97-98% loss, creating

utter confusion in the minds of the persons who had participated in the public auction. Normal practice of collecting 50% of the tender amount was

done away with. There was also instance in which a person in whose favour tender was confirmed had backed out; still entire Earnest Money Deposit

was released to him. So the petitioner has approached this Court seeking the following reliefs:-

“i. to issue a writ of mandamus or other appropriate writ, order or direction, directing the respondents to re-tender all the items, for allotment of

monopoly at Sabarimala for the period from 01.11.2020 to 30.10.2021, by giving wide publicity, and to finalise all tenders, by giving sufficient time to

the public (at least one week time in between last date of submission and finalization of tenders);

ii. to declare as invalid the entire auction procedure conducted by the respondents on 12.11.2020, for allotment of monopoly all items at Sabarimala

during the period from 01.11.2020 to 30.10.2021â€​

We heard Smt.V.P. Seemanthini, the learned senior counsel for the petitioner as also Sri. G. Biju, the learned standing counsel for Travancore

Devaswom Board.

According to the learned senior counsel, everything was done in most arbitrary manner contrary to usual way of doing things. If the auction was

conducted after giving wide publicity, the respondents would have benefited and therefore, the learned senior counsel vehemently pleaded for ordering

re-tender and also to consider Exts.P11 and P12 representations.

On the other hand, the learned standing counsel opposed the plea. According to him, even after publishing three consecutive notifications, since

responses were poor, the rights were auctioned out by suffering huge loss because there was no other way out since the season had to commence on

16.11.2020. According to the learned standing counsel, in between, there were holidays for the Board due to Chithira Attam, Deepavali and Sunday.

It is not disputed that for the festival season in Sabarimala in 1196 M.E., that is from 11.11.2020 to 31.10.2021, about 216 items for the supply of

goods and services were to be auctioned out; the first notification was issued by way of publishing Ext.P1 notification dated 07.10.2020. The response

was very poor; petitioner says that only one item was auctioned out pursuant to the said notification. Later, Ext.P2 re-e-tender notification was issued

on 27.10.2020 scheduling the opening date on 04.11.2020. Then also the response was poor and that led to the issue of Ext.P3 notification dated

10.11.2020 fixing the last date for submitting quotations on 12.11.2020. Then also the response was disappointing and that led to the respondents to

take steps to auction out the rights by inviting quotations from the interested. According to the petitioner, quotations were submitted offering

unimaginably low rates of 2-3% of the tender value, suffering huge loss of 97-98% by the respondents. According to the petitioner, if such a

procedure was adopted by giving wide publicity, the rights would have been sold out at much higher amounts and thus the respondents are sought to

be directed to conduct re-tender.

We have no doubt that matters in the current year are not comparable with the situation in yester years. Due to Covid-19 pandemic, entry of

devotees is limited. Last year, when there was unrestricted entry, there used to be one lakh devotees a day, on an average, taking darshan at the hill

shrine; but due to the intervention of the Government and the introduction of health protocol, this year the number of devotees had to be restricted.

Initially only 1000 devotees were allowed to enter the shrine a day, which was later enhanced to 2000, that too imposing strict conditions. Thereafter,

only at the intervention of this Court, the number of devotees was enhanced to 5000 on a day. In other words, at the time when tender notifications

were issued, there prevailed absolute uncertainty and conventional traders were hesitant to submit any offer. That made the respondents to issue

successive re-notifications and even after making three notifications, the responses were disappointing and that led them to take the extreme step of

inviting quotations by waiving the value of tenders.

As rightly pointed out by the learned standing counsel, the urgency of the situation cannot be ignored by the court. The date of opening of the third

tender was 12.11.2020. Between 12.11.2020 and 16.11.2020, the date of opening the shrine, only few days were left and some holidays also

intervened and thus the respondents had no other option but to invite quotations and sell out the kuthaka rights without loss of further time. The

petitioner and such other traders, who had not made use of the earlier opportunities, cannot be heard to say that everything was done in haste.

Secondly, the prayer for issue of mandamus is clearly out of place. It is the settled proposition of law that a writ of mandamus does not lie to create

or establish a legal right, but to enforce a legal right that is already established. The petitioner has no case that he has any such legal right to be

enforced. Moreover, it is an equitable right and is governed by equitable principles. Promotion of substantial justice is the prime consideration for issue

of such a writ. [See the decision reported in The Rajasthan State Industrial Development and Investment Corporation & another. v. Diamond and

Gem Development Corporation Ltd. [(2013) 5 SCC 470]. It is also settled law that such a writ cannot be issued based on sympathetic consideration

and that there must be a legal right to be enforced. The petitioner could not establish any such legal right in his favour.

Moreover, many other writ petitions seeking identical reliefs were rejected by this Court on the premise that such repeated notifications were

issued out of absolute necessity and ultimately quotations were accepted since there was no taker in spite of making three attempts. There is no

reason why the same view should not be taken here also.

The petitioner is thus not entitled to get any relief and the writ petition is liable to be dismissed. Dismissed in limine.

Some of the allegations in the writ petition are disheartening. We do not propose to go further into the allegations. But it is for the respondents to

see that if any such unhealthy practices are in vogue, that should be guarded against.