IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 4TH JULY 2011 / 13TH ASHADHA 1933 WP(C).No. 13892 of 2011(J) ---------------------------------------- PETITIONER(S): ------------------------- A.D.BAIJU, AGED 35 YEARS, S/O.DEVASSIKUTTY, ARACKAL HOUSE, AYYAMPUZHA.P.O., KOZHIKODE. BY ADV. SRI.P.DEEPAK RESPONDENT(S): ---------------------------- 1. THE PLANTATION CORPORATION OF KERALA LIMITED., REGISTERED OFFICE KOTTAYAM, PIN-686 004, REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE MANAGER, THE PLANTATION CORPORATION OF KERALA LIMITED, PERAMBRA ESTATE, MUTHUKAD.P.O. 686 004. R1BY ADVS. SRI.V.ABRAHAM MARKOS, SRI.MATHEWS K.UTHUPPACHAN, SRI.BINU MATHEW, SRI.TERRY V.JAMES, SRI.B.J.JOHN PRAKASH, SRI.TOM THOMAS (KAKKUZHIYIL). THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/06/2011, THE COURT ON 04/07/2011 DELIVERED THE FOLLOWING: Kss WPC.NO.13892/2011 J APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE TENDER NOTICE DTD. 6/01/2011. P2: COPY OF THE COMMUNICATION DTD.15/03/2011. P3: COPY OF THE AGREEMENT DTD. 16/03/2011. P4: COPY OF THE COMMUNICATION DTD. 16/03/2011. P5: COPY OF THE COMMUNICATION DTC. 26/04/2011. P6: COPY OF THE COMMUNICATION DTD. 6/05/2011. P7: COPY OF THE ORDER OF CANCELLATION DTD. 10/05/2011. P8: COPY OF THE MINUTES OF THE 371ST MEETING OF THE BOARD OF DIRECTORS DTD. 6/05/2011 IN ITEM NO.2. RESPONDENT'S ANNEXURES: ANNEX.R1(A):COPY OF MINUTES OF THE 371ST MEETING OF THE BOARD DTD. 6/05/2011. /TRUE COPY/ P.A.TO JUDGE Kss P.R.RAMACHANDRA MENON, J ....................................................... W.P.(C).13892/2011 .............................................. Dated this the 4th day of July, 2011 JUDGMENT Whether the contract in question stated as entered into between the petitioner and the second respondent could be sought to be enforced by specific performance, once the same is cancelled, is the issue involved. 2. Petitioner is stated as engaged in the business of supply of manpower security cover for Trading & Commercial establishments including plantations and estates. The respondent/Corporation owns extensive tracts of rubber, arecanut and cashew plantations in various parts of the State including at Perambra in Kozhikode district. It is stated that since such estates are mostly lying contiguous with reserve forests, wild animals' incursions and attacks, thereby causing huge crop loss, is a common feature. To protect the crop/trees and the estate of the Corporation, Estate Watchers/Wild Animals Scarers were decided to be engaged on contract basis. Ext.P1 is one such tender issued by the second respondent on 6.1.2011. W.P.(C).13892/11 2 3. Pursuant to Ext.P1 tender, the petitioner submitted his bid on 31.1.2011 quoting a sum of Rs.40/- per hectare, as the security charges. It is stated that the bid was opened on 31.1.2011, the scheduled date and the amount was slashed down to Rs.38/- per hectare in negotiation and accordingly, the bid submitted by the petitioner was accepted as borne by Ext.P2 communication dated 15.3.2011. On acceptance of the petitioner's bid, Ext.P3 agreement was executed between the petitioner and the second respondent on 16.3.2011, incorporating the relevant terms and conditions; based on which Ext.P4 'work order' was awarded on 16.3.2011 asking the petitioner to commence the work from the next day onwards. 4. The case of the petitioner is that, on awarding the work as above, petitioner has been discharging the duties, deploying sufficient manpower security; despite which some stray incidents of wild animal attack occurred, causing destruction of the trees belonging to the Corporation. In tune with the terms of the contract, loss caused to the Corporation was fixed at the rate of Rs.2,000/- per tree and the same was sought to be recovered from the petitioner [in respect of the incidents W.P.(C).13892/11 3 occurred on 19.4.2011 and 22.4.2011] as per Ext.P5; thus demanding a total sum of Rs.22,000/- to be paid within two days. This was followed by Ext.P6 dated 6.5.2011, as to similar incidents and loss occurred on 28.4.2011 and 2.5.2011 respectively, demanding a sum of Rs.6,000/- towards the loss. Petitioner contends that, though he had not satisfied the amounts as demanded, he had conveyed the consent for deducting the said amounts from the amount payable to him as per the contract, in respect of the relevant months in question (though no proof in this regard has been produced before this Court). 5. While so, the petitioner is stated as served with Ext.P7 memo dated 10.5.2011 issued by the second respondent cancelling the agreement, referring to the decision taken by the Board of Directors of the respondent/Corporation on 6.5.2011. A copy of the minutes of the relevant meeting of the Board of Directors held on 6.5.2011 has been produced as Ext.P8. Petitioner challenges Exts.P7 and P8 on many a ground, specifically contending that the steps taken by the respondents in cancelling the contract/agreement are per-se wrong and illegal and arbitrary in all respects and also without complying with W.P.(C).13892/11 4 the principles of natural justice, in so far as the petitioner was not given any opportunity of hearing before the cancellation of the contract. It is the contention of the petitioner that the respondents are bound to give effect to the terms of the contract. It is also pointed out that Ext.P3 agreement contemplates cancellation of the contract only under 'two circumstances', first one with reference to non-payment or the non-satisfaction of the loss sustained to the Corporation due to the lapses of the petitioner and the second one, if any such event takes place in two consecutive months. 6. The respondents have filed a statement, pointing out that the writ petition itself is not maintainable, primarily for the reason that the respondent/Corporation is not a State or other authority under Article 12 so as to sustain the writ petition under Article 226 of the Constitution of India and secondly, that the petitioner is wrongly seeking to enforce a contract which has already been cancelled. Reliance is also sought to be placed on the decision rendered by the Apex Court in Radhakrishna Agarwal v. State of Bihar (AIR 1977 SC 1496); simultaneously pointing out that the issue involved is purely of a W.P.(C).13892/11 5 civil nature and that the remedy of the petitioner lies elsewhere. 7. Both the sides were heard in detail. 8. The learned counsel for the petitioner submits with reference to the materials on record, that the sequence of events is not disputed by the respondents and hence the rights and liberties of the petitioner arising out of contract have already been crystallized and as such, the cancellation of the contract, for no reason should not have been pursued contrary to the terms of the contract. According to the petitioner, the only two circumstances for cancellation of the contract are as specified in condition No.4 as well as in condition No.12 of Ext.P3 Agreement; the former one due to failure if any, to satisfy the loss caused because of the lapses on the part of the petitioner within three days of demand and the latter, if such lapses occurred in two consecutive months. Obviously, there is no reference in Ext.P7 memo of cancellation or in Ext.P8 resolution of the Board to any such event and as such, the decision taken to cancel the contract for some other reason is stated as not correct W.P.(C).13892/11 6 or sustainable. With regard to the dispute as to the maintainability of the writ petition, raised by the respondents, reliance is sought to be placed on the decision rendered by this Court in Mathew v. Plantation Corporation of Kerala (1994 (2) KLT 874), holding that the respondent/Corporation is very much an 'other authority' who comes within the writ of jurisdiction of this Court, which hence stands concluded. 9. In response to the contention of the respondent/Corporation that the writ petition is not maintainable, the relief sought for being enforcement of the rights under the contract and hence as to the necessity to avail the civil remedy, the learned counsel for the petitioner submits that, interference is very much possible by this Court under Article 226 of the Constitution of India even in such cases, in view of the law declared by the Apex Court in Common Cause. A Registered Society v. U nion of India (1999 (6) SCC 667) (wherein decision cited and relied on by the respondent - Radhakrishna Agarwal v. State of Bihar (AIR 1977 SC 1496 - has been referred to) and Popcorn Entertainment and Another v. City Industrial Development Corporation and Another (2007 (9) SCC 593). W.P.(C).13892/11 7 10. After hearing both the sides, this Court finds that the contention raised by the respondent/Corporation that no writ is maintainable, the respondent not being a State or other authority under Article 226, is not liable to be accepted in view of the law already declared by this Court in Mathew v. Plantation Corporation of Kerala (1994 (2) KLT 874) which has been stated as become final. 11. With regard to the scope of interference, there is considerable force in the submission made by the learned counsel for the petitioner in the light of the law declared by the Apex Court as referred to above that, interference is possible and even specific performance can be ordered by this Court invoking power under Article 226 in appropriate cases. But here, the question is something different. It is, whether this is a fit case to call for any such interference ordering specific performance of contract or to compensate the petitioner in any manner, invoking such extra-ordinary and discretionary power. This being the limited question,, this Court does not find it necessary to refer to the factual position or to the finding arrived W.P.(C).13892/11 8 at by the Apex Court in various other decisions cited by the petitioner to sustain the maintainability of the writ petition and to grant the reliefs. 12. Obviously, Ext.P1 tender notification has been issued by the second respondent/Manager on 6.1.2011 and the same was finalised on 13.1.2011 when the bid was opened, leading to Ext.P2 acceptance of the bid issued on 15.3.2011, followed by Ext.P3 agreement dated 16.3.2011 and Ext.P4 work order dated the same day, asking to start the work from the next day. Issuance and finalization of the tender as above and some incidental aspects were brought to the notice of the Board by the Managing Director of the first respondent/Corporation, as discernible from Ext.P8 resolution of the Board. After considering the same, Board observed that the awarding of 'watching contract' for mature rubber trees for the first time ought to have been brought before the Board. The Board also noted that the financial commitment of the contract was above 30 Lakhs for the three years period in question and further that the required tender formalities were not observed in issuing and finalizing the contract. It was in the said circumstances, W.P.(C).13892/11 9 that, Ext.P8 decision was taken by the Board to cancel the contract with immediate effect asking the Managing Director to take necessary action regarding the payment due to the contractor after observing all necessary formalities. It was pursuant to this decision dated 6.5.2011, that Ext.P7 communication was issued by the second respondent cancelling Ext.P3 agreement on 10.5.2011. 13. What is the procedure to be followed in issuing and finalising the tender, in the given circumstances; whether there was any violation in this regard; whether the second respondent/Manager was competent to have issued Ext.P1 Tender Notice, that too without knowledge of the Board/MD; whether the prescribed procedure, if any, was followed; whether the said proceedings were pursued in a transparent manner with liberty to all to participate in the bid; whether the watching of estate in respect of mature rubber trees in the estate was being pursued for the first item as observed by the Board; was there any enabling provision or decision taken by the Board or order issued by the Managing Director to have such a procedure in respect of mature trees (unlike in the case of saplings or crops) W.P.(C).13892/11 10 etc., are matters to be looked into, before arriving at a finding as to the legality of the proceedings. This, of course, is a matter to be considered and decided on the basis of appropriate pleadings and evidence to be let in; which exercise need not and cannot be pursued by this Court invoking the extra-ordinary and discretionary jurisdiction under Article 226 of the Constitution of India, but squarely comes within the realm of Civil dispute, to be agitated before the competent Civil Court. 14. There is a contention for the petitioner that Ext.P7 decision taken by the Board stands to an exception in the case of the petitioner, in so far as, such a decision was taken in respect of an item which was not included in the 'Agenda'. As per the relevant provisions of the Companies Act, or such other provisions akin thereto, it is not a taboo for an entity like the first respondent to have considered any matter, though not included in the Agenda by the Board of Directors and to take a decision depending upon the exigency pointed out. In the instant case, it was after taking note of the report of the Managing Director (referring to the course pursued by the second respondent/Manager) as to the issuance and finalization of the W.P.(C).13892/11 11 tender without following the prescribed procedures and that too, in respect of the estate with mature trees for the first time, causing much financial liability upon the Corporation, that the Board decided to consider the same, passing appropriate orders therein; more so, when the cancellation of the petitioner's contract was not the sole item considered by the Board “out of the Agenda”, but was only one among the 'eight items' considered out of the agenda on the said day, as discernible from the full text of the meeting produced by the respondents as Annexure-R1(a) along with that their statement dated 7.6.2011. It can be seen from Annexure-R1(a) that, including the issue pertaining to the petitioner, there were eight items; beyond the Agenda, such as:- (i). Extension of LWA application of Sri.M.B.Sivadasan, PF No.1246. (ii). Awarding of Watching on contract basis at Perambra Estate. (iii). Conducting medical camp for Workers. (iv). Payment payable to victims of Endosulfan (v). Cancellation of the lease agreement of Rajapuram Estate - 264 Hectare W.P.(C).13892/11 12 (vi). Appointment of General Manager(O) (vii). Permanent Tapping Exemption request of Sri.V.K.Divakaran (viii). Advertisement - payment - reg. Appropriate decision was taken by the Board in respect of all the above 'eight items' and it was not a case of exception in the case of the petitioner. That apart, there is no specific plea of 'mala fides' anywhere in the writ petition and none of the concerned officer or member of the Board has been included in the party array, in the personal capacity, if at all any such plea is to be substantiated or legally accepted. 15. Petitioner has contented that the apprehension expressed by the Corporation/respondent with regard to the financial commitment/liability is without any basis, pointing out that the annual average loss caused to the Corporation because of the wild animal attacks was about 13 Lakhs while the annual contract payable to the petitioner was about Rs.10 Lakhs (the total contract amount of about 30 Lakhs being for the contract period of three years). To what extent the Corporation would be benefited, because of such engagement of the persons like the W.P.(C).13892/11 13 petitioner, that too at the rates as now quoted and stated as accepted, is definitely a matter to be considered by the competent authority of the respondent/Corporation and not by the second respondent/Manager; unless otherwise permitted in this regard. This is more so, when such Watching of the Estate animals in respect of mature trees was sought to be brought in for the first time, as observed in Ext.P7 Board resolution. Whether there was any fault on the part of the second respondent, acting contrary to the prescribed norms and procedures and what should be the policy of the Board in this regard etc., are matters to be considered at the appropriate level. Whether there was any lapse or illegality, impropriety or irregularity in this regard, is also a matter to be specifically pleaded and established on the basis of evidence to be let in; which is to be carried out before the competent Civil Court. For this reason also, interference is not possible by this Court. 16. Yet another aspect to be noted is that the petitioner, while contending that the agreement/contract could have been cancelled only for 'two' reasons as mentioned in clauses 4 & 8 of Ext.P3 agreement and for no other reason at all, it stands an W.P.(C).13892/11 14 admitted fact that the petitioner was asked to compensate for the loss sustained to the Corporation, because of the lapse on the part of the petitioner in the matter of providing security, as borne by Exts.P5 and P6. It is also an undisputed fact that the petitioner did not clear the amount sought to be remitted as per Exts.P5 and P6 and the only case of the petitioner is that the petitioner had informed the second respondent to have the said amounts deducted from the monthly payments to be effected to the petitioner and hence that there is no default. But for the vague averments as above, no material has been produced before this Court to show that the petitioner had given any such letter/consent to the second respondent to deduct the amounts payable by the petitioner under Exts.P5 and P6, from the monthly payments to be effected to him; nor is there any proof as to the acceptance of such proposal and the confirmation in this regard if any, issued by the second respondent. 17. Admittedly, Clause 12 of Ext.P3 Agreement clearly stipulates that the contract is liable to be cancelled, if such loss/lapses are resulted in two consecutive months. In view of the specific instances pointed out in Exts.P5 and P6, such lapses W.P.(C).13892/11 15 occurred on the part of the petitioner in 'April, 2011' as well as in 'May, 2011'. Since the petitioner does not have a case that the instances pointed out by the respondents are wrong. On the other hand, he admits the liability under Exts.P5 and P6 and contends that he had given concurrence to have the amounts due under Exts.P5 and P6 to be deducted from the monthly amount payable to him. The factum of loss/lapses occurred in two consecutive months (April & May, 2011) stands conceded/established. If this be the position, it comes within the scope of Clause 12 of Ext.P3 as well and since the admitted facts do not require to be proved in view of Section 58 of the Evidence Act, the respondents may be able to sustain the stand even otherwise, as and when the challenge is raised before the Civil Court. The said aspect has not been considered by the Board while taking Ext.P7 decision on 6.5.2011, obviously for the reason that it was not necessitated in view of the cancellation of the contract for not following appropriate procedures. This Court finds that this is not a fit case to exercise the extra- ordinary, discretionary jurisdiction of this Court under Article 226 of the Constitution of India, to give any positive relief to the petitioner. W.P.(C).13892/11 16 In the above circumstances, interference sought for to set aside Exts.P7 and P8 is declined. The writ petition fails and the same is dismissed accordingly. P.R.RAMACHANDRA MENON, Judge mrcs