Disposed

The Travancore Devaswom Board v. the Deputy Director

Kerala HC26 Jul 2023DBP/8/2018

Case brief

AI extract

What is this about?

In proceedings regarding a disputed computerization project agreement, the bench observed that the contract and warranty period had expired with no project completion. The court held continuation of judicial proceedings unnecessary and disposed of the petitions by directing the Travancore Devaswom Board to prepare and submit a scheme to the Ombudsman for future implementation.

What did the court decide?

Petitions disposed of directing the Travancore Devaswom Board to prepare a scheme for a computerized system and submit it to the Ombudsman.

The Travancore Devaswom Board Vs the Deputy… — Contract and Commercial Disputes | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 26^TH DAY OF JULY 2023 / 4TH SRAVANA, 1945 D.B.P. NO. 8 OF 2018

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IN THE MATTER OF TRAVANCORE DEVASWOM BOARD - TDB

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PROCEEDINGS INITIATED - REG.

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PETITIONER/S:

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THE TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM.

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BY ADVS.

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SRI.G.BIJU, SC, TRAVANCORE DEVASWOM BOARD

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RESPONDENTS:

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1 THE DEPUTY DIRECTOR

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LFA TRAVANCORE DEVASWOM BOARD AUDIT, THIRUVANANTHAPURAM- 695001.

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2 K.M.NANDINI DEVI PROJECT MANAGER, TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM.

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3 VINAYAKUMAR

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CHIEF ENGINEER, TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM.

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4 THE EXECUTIVE ENGINEER TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM.

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D.B.P.Nos.8 of 2018 and 1 of 2020

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5 KELTRON, REPRESENTED BY ITS MANAGING DIRECTOR.*

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*ADDL.R5 IS IMPLEADED AS PER ORDER DATED 12.02.2018 IN DBP 8/2018

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BY ADVS.

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R1 BY SRI S.RAJMOHAN - SR GOVERNMENT PLEADER ADDL.R5 BY SMT.M.A.ZOHRA

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OTHER PRESENT:

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SRI P.RAMACHANDRAN- AMICUS CURIAE

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THIS DEVASWOM BOARD PETITION HAVING COME UP FOR FINAL HEARING ON 10.07.2023, ALONG WITH DBP.1/2020, THE COURT ON 26.07.2023 DELIVERED THE FOLLOWING:

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D.B.P.Nos.8 of 2018 and 1 of 2020

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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WEDNESDAY, THE 26^TH DAY OF JULY 2023 / 4TH SRAVANA, 1945

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D.B.P. NO. 1 OF 2020

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IN THE MATTER OF TRAVANCORE DEVASWOM BOARD - TDB

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PROCEEDINGS INITIATED - REG.

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PETITIONER:

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TRAVANCORE DEVASWOM BOARD

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REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM

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BY ADVS.

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SRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD

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RESPONDENTS:

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1 THE DEPUTY DIRECTOR FOR LOCAL FUND ACCOUNTS THIRUVANANTHAPURAM, PIN - 695 001.

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2 THE SECRETARY, BOARD OF REVENUE

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3 THE DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM

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4 EXECUTIVE ENGINEER,

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TDB, THIRUVANANTHAPURAM (PROJECT MANAGER-INCHARGE, COMPUTERIZATION IMPLEMENTATION PROGRAMME)

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D.B.P.Nos.8 of 2018 and 1 of 2020

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5 KERALA STATE ELECTRONIC DEVELOPMENT CORPORATION REPRESENTED BY ITS MANAGING DIRECTOR*

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*IS SUO MOTU IMPLEADED AS ADDL. R5 AS PER ORDER DATED 20.01.2020 IN DBP 1/2020

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BY ADVS.

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R1 & R2 BY SRI S.RAJMOHAN - SR GOVERNMENT PLEADER ADDL.R5 BY SMT.M.A.ZOHRA

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OTHER PRESENT:

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SRI P.RAMACHANDRAN- AMICUS CURIAE

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THIS DEVASWOM BOARD PETITION HAVING COME UP FOR FINAL HEARING ON 10.07.2023, ALONG WITH DBP.8/2018, THE COURT ON 26.07.2023 DELIVERED THE FOLLOWING:

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D.B.P.Nos.8 of 2018 and 1 of 2020

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O R D E R

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P.G. Ajithkumar, J.

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D.B.P No. 8 of 2018 was registered based on TDB Report No.8/2018 in SMC No.93/2017. D.B.P No. 1 of 2020 was registered based on TDB Report No.69/2019 in Complaint No.14/19, DBA No. 9/2016 and SMC No. 93 of 2017. Both D.B.P.s are in regard to computerisation of different temples and offices of the Travancore Devaswom Board under “the total computerisation of Travancore Devaswom Board Project”. The work was awarded to the Kerala State Electronics Development Corporation Limited (KELTRON). In pursuance of that, they executed an agreement dated 12.04.2017. The total cost of the project is Rs.9,73,61,396/-.

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Annexure-O4 in DBP No.1/2020 is the report dated 24.12.2019 of the Nodal Officer, I.T. division in the Travancore Devaswom Board. It would reveal that going by the agreement executed between the TDB and the KELTRON, the latter was to develop '6' main software modules consisting of '33' sub-modules within the time limit of 4 months. In

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D.B.P.Nos.8 of 2018 and 1 of 2020

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Annexure-O4, it is further stated that only '3' sub-modules viz., devotee portal (online booking of vazhipadu and accommodation at Sabarimala, counter billing at Sabarimala and counter billing at other temples) alone were developed and implemented. The hardwares are also installed. The reason for registration of the complaint based on which the aforesaid reports were submitted, was the failure to honour the bills submitted by the KELTRON – ULCCS consortium in the matter of computerisation. The Travancore Devaswom Board has constituted a committee for expert evaluation and opinion in regard to the works completed by KELTRON pursuant to the agreement referred to herein before.

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As noted above, going by Annexure-O4 '6' main software modules and '33' sub-modules were to be developed in terms of the agreement. While the stand of the TDB is that only '3' sub-modules out of the '33' sub-modules have been developed and handed over to TDB, the stand of the KELTRON, as can be seen from the statement filed by the 5^th respondent dated 15.07.2021, is that '32' sub-modules were

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D.B.P.Nos.8 of 2018 and 1 of 2020

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developed. Such a claim is stated in paragraph '4.l' of the statement and it reads thus:

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“4.l. TDB have to do the user acceptance test for all the software's modules (32 Modules) in this project and permission for hosting the application at State Data Center. But it is still pending from TDB's side."

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That apart, in paragraph No.6 of the said

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statement, it is stated thus:

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“6. As part of the Computerisation of Travancore Devaswom Board Project, KELTRON has developed 6 Main Software Modules and total of 32 Sub modules.”

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Thus, the KELTRON claims that, they had

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developed '6' main software modules and a total of '32' submodules, whereas, as per the Travancore Devaswom Board, KELTRON had developed and handed over only '3' submodules. Taking note of the respective stand taken by Travancore Devaswom Board and KELTRON, this Court pointedly asked the learned Standing Counsel appearing for KELTRON as also to Travancore Devaswom Board to get instructions, precisely on the number of modules/sub-modules actually developed based on the aforementioned agreement as part of the project in question.

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D.B.P.Nos.8 of 2018 and 1 of 2020

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When this matter was taken up on 09.08 2021, the submissions were made by both Counsel sticking on their earlier stand. According to the Travancore Devaswom Board, only '3' sub-modules were developed and handed over to it and according to KELTRON '6' main software modules and '32' submodules were already developed. The divergent stand taken by KELTRON and the Travancore Devaswom Board, as afore-noted, would indicate that one of the parties is trying to mislead this Court. Hence, this Court found it necessary to get a detailed report on the aforesaid disputed aspect for passing further order and also for taking appropriate action in case of any attempt to mislead this Court. It is submitted by the learned Standing Counsel appearing for the KELTRON, on instructions that, it would be acceptable for KELTRON, if a report is called for through the I.T. Mission, which is now conducting the security audit in regard to the works already completed by the KELTRON. This is acceptable to the Travancore Devaswom Board as well. In such circumstances this Court directed the I.T.Missio to do a verification of the

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D.B.P.Nos.8 of 2018 and 1 of 2020

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aforesaid aspects in the presence of the Sabarimala Special Commissioner or some one authorised by him specifically for that purpose. A report was directed to be submitted by the I.T.Mission to the Sabarimala Special Commissioner, on or

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before 06.09.2021, who in turn, to submit the report for perusal of this Court, on or before 13.09.2021 along with remarks, if any.

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In terms of the directions in the aforesaid order, the I.T.Mission prepared a report and submitted to the Special Commissioner, Sabarimala. In turn, the Special Commissioner submitted a report before this court on 10.05.2022. The remarks/suggestions of the Special Commissioner in the

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above regard are enumerated in the report, which reads,-

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“(i) present software of computerization is outdated and methodology of the development of software is also found to be not suitable.

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(ii) The present methodology of software development is akin to the water fall model of software development.

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(iii) The way forward for fool proof development of the software application is to adopt Agile methodology of software development which requires for interaction

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D.B.P.Nos.8 of 2018 and 1 of 2020

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with the domain experts and officers of the TDB and taking into consideration various methods of process and functioning adopted by the TDB while continuously improving application while developing the software. The functionality of the software can be ensured only by getting inputs from domain experts from the Travancore Dewasvom Board.

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(iv) Agreement has to be renewed between TDB and KELTRON-ULCC consortium.

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(v) KELTRON-ULCC has to give technical training to the TDB IT division team.

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(vi) Software development team should work from TDB HQ and the various major temples including Sabarimala, get inputs from domain experts, receive feedback from pilgrims until the Softwares and applications are successfully developed, by ensuring functionality and the completion of the project.

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(vii) UI (User Interface) of the current applications should be modified to be attractive and easy to use by devotees. More information should be furnished in the user interface.

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(viii) Up to date technology is to be adopted for the whole project. The entire software applications are to be hosted in the cloud ecosystem and cloud technology can be used to reduced the implementation cost.

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(ix) For development of software and conducting UAT, though the TDB has an Information Technology Wing

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D.B.P.Nos.8 of 2018 and 1 of 2020

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IT Department now, it is suggested to post a competent officer from Kerala State IT Mission who is conversant with the process of development of software and application on deputation basis to the TDB.

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(x) The KELTRON, ULCCS consortium should give necessary back up to the TDB.

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(xi) Training should be provided by KELTRON ULCCS consortium to a hand full of employees of the TDB from each of its different wings and they are to be appointed as master trainers.

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(xii) The master trainers in turn have to give training to all the employees of TDB in operating the software. Within a time frame all the staff of the TDB should be able to operate the software applications.

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(xiii) The hardware asset management of Travancore Devaswom Board has to be implemented with the aid of Kerala State IT Mission.

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(xiv) The current DPR, on which the softwares are being developed was prepared in the year 2013-'14. After that a lot of technological advances happened in the industry. Hence proceeding with this old DPR is not practical and it will become a loss to the Board. Hence it is suggested that the 3 modules now in use only should be completed properly and can be put in use.

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(xv) New DPR should be prepared for the remaining computerization programme and that too should be

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D.B.P.Nos.8 of 2018 and 1 of 2020

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completed within a time frame.

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(xvi) The funds received through the billing system of present modules are not yet reconciled. Proper and strict direction to reconcile the accounts should be given to the accounts officer/Finance Commissioner, within a time limit. The refund issues can be sorted out only after doing the reconciliation. The Travancore Devaswom Board may also consider using the free softwares provided by Kerala State Govt. for office administration, like e-office, SPARK, BIMS etc.

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(xvii) An IT technical team should be constituted urgently for implementing the computerization in TDB. (xviii) Scope of developing a user friendly mobile application which enables the devotees to get information from all major temples, access services, book poojas, make e-kanikka vazhipadu etc may be considered by all the stakeholders.”

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The 5^th respondent in continuation of the earlier affidavits filed filed a fresh affidavit explaining its stand and also the demand for payment of the amount that remained unpaid as per the agreement dated 12.04.2017. The stand taken by the 5^th respondent as contained in the last two paragraphs of the affidavit read as follows:-

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“KELTRON commenced the execution of the Project in

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D.B.P.Nos.8 of 2018 and 1 of 2020

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the 2016 Mandala Makaravilaku season and is continuing the support for Sabarimala including monthly/Mandala Pooja season and so at other temples. As per the terms of the Agreement, handholding support is only for one year and the warranty support is for 3 years. KELTRON has provided support for additional two years after the one year handholding support and still continuing. It is too difficult for KELTRON to continue the handholding support without getting the payment for the additional support already done as agreed. TDB has not paid payments in spite of repeated requests.

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It is submitted that the entire work is being done as per directions issued by this Honourable Court in the prior petitions filed by TDB in the matter of Sabarimala Project and without any delay on the part of this respondent, but in spite of the earnest efforts taken by KELTRON to complete the work on war footing to comply with the directions, no payment is made by TDB. Now, new allegations have been made which is unbearable in the nature of the work done and the attempt is to pressurize KELTRON to continue to do the work without payment as promised, but not noted in the minutes. Hence, it is humbly prayed that this Honourable Court may be kindly pleased to issue directions to the TDB to release payments on pending approved bills at the earliest and to proceed with

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D.B.P.Nos.8 of 2018 and 1 of 2020

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finalization of the balance bills to preserve KELTRON from financial constraints faced by it unless which KELTRON will be rendered helpless to finish off the work as per the Project and its Scope.”

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In answer to the report of the Special Commissioner, the Travancore Devaswom Board has filed a reply affidavit, which is dated 25.05.2023. The steps taken by the Travancore Devaswom Board in the matter of setting right the project of computerisation and automation of the system at Sabarimala and other Temples and offices of the Devaswom

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Board in terms of the agreement dated 12.04.2017 have been explained in the said affidavit. The relevant averments contained in paragraphs No.9 to 15 read as follows:-

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“9. It is submitted that, in the meeting convened at Travancore Devaswom Board Head Quarters on 03.05.2023 with KELTRON and ULCCS, the following decisions were taken:

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(i) To authorize the Devaswom Commissioner to release the 10% amount withheld from the warranty coverage of the hardware Items.

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(ii) To release the payment for the 3 modules developed and handed over by KELTRON to Travancore Devaswom Board.

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D.B.P.Nos.8 of 2018 and 1 of 2020

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(iii) The further steps regarding the remaining 29 modules will be decided in terms of the outcome of the case pending before the Hon'ble High Court. (iv) To pay Rs.3,245/- per person for the hand held support provided by KELTRON from November 2022.

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It is submitted that Travancore Devaswom Board had already given 10% of the total project cost (9,73,61,396/-) as mobilization advance (97,36,139/-), Travancore Devaswom Board has also given Rs.97,75,572/- for hardware purchase, totalling to an amount of Rs.1,95,11,711/- so far. 11. In the initial stage of the project it was decided to implement the project in 10 A.O Grade temples, Sabarimala and the Head Quarters of Travancore Devaswom Board. The only module which was used at that stage was the counter billing module. Though the other modules which were decided to be used along with the counter billing module were claimed to be functional by the bidder, but those modules had many flaws, were incomplete and could not be used. Though the Travancore Devaswom Board approached the bidder for the rectification of the flaws in those modules, it did not turn up.

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It is submitted that KELTRON doesn't have any technical control over the modules which are currently in use, ULCCS solemnly controls every aspect related to

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D.B.P.Nos.8 of 2018 and 1 of 2020

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those 3 modules. ULCCS and KELTRON have frequently failed in providing support even for the matters of urgency by making excuses related to payment even though the matter is under the consideration of this Hon'ble Court.

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In the meeting held at Travancore Devaswom Board Head Quarters on 26.09.2022 it was agreed by KELTRON to make the necessary changes which were suggested by Travancore Devaswom Board. But the bidder failed to make those changes by stating that those requirements are out of the scope of the tender document and demanded additional payment. But most of those major changes suggested by the Travancore Devaswom Board are specified in the DPR and come under the scope of the tender document.

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Travancore Devaswom Board has appointed a team of IT domain experts, Project Engineer (IT) and Technical Assistants (IT) in the IT Division of Travancore Devaswom Board after obtaining sanction from this Hon'ble Court and have already gone forward with the works like implementation of KSWAN connectivity, hosting of current modules at State Data Centre, bulk SMS purchase, hardware stock verification at offices and devaswoms etc.

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It is submitted that the Travancore Devaswom Board has few more suggestions in addition to those contained in the report of the Special Commissioner.

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D.B.P.Nos.8 of 2018 and 1 of 2020

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(a) The three software modules now in use work on outdated technology and require high implementation cost.

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(b) The above three modules can only be used till a system with a newer technology is introduced or the current system is upgraded with newer technology.

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(c) It will be difficult and more expensive for the Travancore Devaswom Board to expand the scope of the currently used 3 software modules to its other offices or temples.

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(d) The other modules claimed to have developed by 5^th respondent are made without obtaining any inputs from the user and are not suitable for being used in the offices and temples under the Board.

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(e) Some changes have been made in the source code of the software modules. After the last audit, some changes were made to rectify the errors in Sabarimala accommodation module, which comes within the responsibility of the developer. Even now the same is not fault free.

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(f) KELTRON ULCCS consortium should make necessary arrangements to audit the software module free of cost and should host it in the State Data Centre which is under Kerala State IT Mission.

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(g) All online booking services related to Sabarimala (like virtual-Q, Vazhipadu/Pooja, accommodation) must be integrated into one online portal.

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D.B.P.Nos.8 of 2018 and 1 of 2020

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The three modules currently developed and handed over are not fully functional and these are running on outdated technology. The 5^th respondent is bound to supply all the software modules with up to date latest technology and must be user friendly. The entire application should be suitable for the work flow and requirement in Travancore Devaswom Board and capable of being hosted in the cloud ecosystem to reduce the implementation cost.”

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From the stand taken by the Travancore Devaswom

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Board and the 5^th respondent-KELTRON as reflected from the aforesaid affidavits of the respective parties, it is evident that completion of the project as agreed to between the parties in the agreement dated 12.04.2017 is elusive and not possible within the framework of the said agreement. The period of the contract is over. Period of the warranted support of 3 years also is over. Therefore the parties have to work out remedies in the matter in accordance with law. The Travancore Devaswom Board has to take effective steps for a hassle-free computerised system at Sabarimala and other Temples and

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also its offices for which it has to explore the possible ways and means either with the help of KELTRON or other agencies.

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D.B.P.Nos.8 of 2018 and 1 of 2020

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In such circumstances, the continuance of the proceedings of these D.B.P.s are unnecessary. In order to avail remedies arising out of the contract in question the respective parties may resort to the recourse available under law.

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Hence, we are of the view that these D.B.Ps. can be disposed of directing the Travancore Devaswom Board to take effective steps for implementing a hassle-free computerised system in Sabarimala and other major Temples and also offices of the Board. The Travancore Devaswom Board after preparing a scheme, shall submit it before the learned Ombudsman for the Travancore Devaswom Board before proceeding with it further. The learned Ombudsman, after deliberating upon such report/s of the Travancore Devaswom Board, shall submit report before this Court for necessary orders.

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With the aforementioned directions, this D.B.P.s are disposed of.

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Sd/-

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ANIL K. NARENDRAN, JUDGE Sd/P.G. AJITHKUMAR, JUDGE

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dkr

The Travancore Devaswom Board v. the Deputy Director

Case brief

What is this about?

What did the court decide?

The Travancore Devaswom Board v. the Deputy Director

Case brief

What is this about?

What did the court decide?

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