The High Court dismissed a writ petition where petitioners sought to quash a tender notice issued after their kiosks' lease expired. The court held that mere inability to recoup construction costs was not a valid ground for extending the period and that the tender issuance was legal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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)
PETITIONER(S):
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:
1. STATE OF KERALA
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)
APPENDIX
PETITIONERS' EXHIBITS
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
//TRUE COPY//
P.A. TO JUDGE
smv
SHAJI P. CHALY, J.
W.P.(C). No. 3199 of 2016
----------------------------------------------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.
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
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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.
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
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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.
W.P.(C).3199 of 2016
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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.
Writ petition fails and accordingly it is dismissed.
Sd/- SHAJI P. CHALY JUDGE
smv 17.10.2016
2 issues framed by the court
Whether the High Court can exercise its discretionary power under Article 226 to extend the lease period for the petitioners to recoup construction costs.
Whether the 3rd respondent acted illegally in issuing a tender notice inviting offers for the kiosks after the original agreement expired.
1 provisions across 1 enactments
SAJU T.B. and A.D.GIREESH
STATE OF KERALA
THE DIRECTOR DEPARTMENT OF TOURISM, STATE OF KERALA
THE DISTRICT TOURISM PROMOTION COUNCIL OFFICE OF THE DTPC, PARK AVENUE, KOCHI
THE CHAIRMAN THE DISTRICT TOURISM PROMOTION COUNCIL OFFICE OF THE DTPC, PARK AVENUE, KOCHI
THE DISTRICT COLLECTOR CIVIL STATION, ERNAKULAM DISTRICT
SHAJI P CHALY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
