IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 WP(C).No. 29842 of 2009(A) -------------------------- PETITIONER(S): --------------- AJITHKUMAR, SON OF SUKUMARAN, AGED 40 YEARS, RESIDING AT AIKKARASSERIL PAYKUZHI, OCHIRA, KOLLAM DISTRICT. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH SRI.V.J.ANAND RESPONDENT(S): --------------- 1. TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. 2. THE DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD, SABARIMALA. 3. CHIEF ENGINEER (SABARIMALA), TRAVANCORE DEVASWOM BOARD, SABARIMALA. 4. THE ASSISTANT ENGINEER, THE TRAVANCORE DEVASWOM BOARD, SABARIMALA. ADV. SRI.V.KRISHNA MENON, SC, TDB FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON, JJ ----------------------------- W.P(C) No.29842 of 2009-A ------------------------------ Dated this the 6th day of November, 2009. J U D G M E N T P.R.Raman J The petitioner submitted his tender pursuant to Ext.P1 notification issued by the first respondent Travancore Devaswom Board for allotment of a stall at Sabarimala. According to him the stall to which he submitted the tender was Sl.No.57 in Ext.P1, having room No.58 in the layout plan prepared by the Board. The petitioner was the successful bidder in the previous year also for the same room and he is in occupation of the same even now. This year he quoted highest amount for the stall as stated above. But the petitioner later came to know that that there was a change in the layout plan in that the previous room No.58 which faces east side was renumbered as room No.59 and this fact was notified in the notice board. The petitioner has been informed that there was bid for room No.58 as per the new layout plan. According to him the present room No.58 faces western side and his shop room has much less scope for business than the other room. Hence he seeks for a writ of mandamus commanding the respondents to allot the old room No.58 ie. the present room No.59 included in Ext.P1 as serial No.57 and to declare that the action of the respondents in changing the room numbers after issuing W.P(C) No.29842 of 2009-A : 2 : Ext.P1 without any notice to the bidders is illegal and arbitrary. 2. On behalf of the first respondent a counter affidavit has been filed. It is stated that the Travancore Devaswom Board had conducted an auction/tender for the various stalls, spaces, sheds etc. at Pampa, Sabarimala and Nilackal in connection with the festival season 1185 M.E in terms of Ext.P1 auction schedule as approved by this Court in D.B.A No.111 of 2009. The order in D.B.A. No.111 of 2009 is produced as Ext.R1(a). As per the auction schedule approved by this Court stall No.58 in the cellar portion of donor House No.7 is intended for “other stall” ie selling articles other than food items. Last year stall Nos.58 and 59 were set apart for “other stall”. However, this year the Board had decided to reduce the number of shops/stalls at Sabarimala, Pamba and Nilackal in consonance with the Master Plan and as a result of reduction of various shops/stalls it was decided to convert stall No.59 which was used as an “other stall” last year, as a hotel for selling packed food articles during this year. The decision taken in this regard is produced as Ext.R1(b). The contention of the petitioner is that room No.58 faces the east and room No.59 faces the west is incorrect and against facts. According to them both the rooms are presently located in the same manner as in the previous year and that there has been no change in the number of rooms. The only fact is that the room No.59 has been changed from “other stall”. W.P(C) No.29842 of 2009-A : 3 : Now it is a hotel for selling packed food articles. It is also submitted that before the conduct of the auction, the layout plan of the location of the various shops/shops/spaces were displayed and all the bidders/tenders were informed over the public address system to verify the layout and only thereafter participate in the auction/tender. It is submitted that pursuant to the auction conducted stall No.58 was bid by the petitioner while the stall No.59 was bid by one Sri.Gopalakrishnan Nair of Haripad for Rs.22,23,313/- for conducting the hotel. Since the petitioner did not participate in the auction for room No.59 he has no claim and has necessarily to vacate the premises to the successful bidder. It is also pointed out that both the rooms are located and shown in the plan and one cannot be set out as more prominent than the other. It is pointed out that Ext.P1 auction schedule will disclose that the upset price for stall No.59 was Rs.15,00,000/- and whereas the upset price for stall No.58 which was bid by the petitioner was Rs.5,40,880/-. Therefore they prayed that the writ petition may be dismissed. 3. Ext.R1(a) is the order passed by this Court in D.B.A.No.111 of 2009. It is also pointed out that based on the high power committee recommendations they decided to reduce the number of stalls in Sabarimala, Pamba and Nilackkal. After considering the entirety of the matter, this Court accorded permission to auction/tender the vacant W.P(C) No.29842 of 2009-A : 4 : premises/shops etc. as prayed for. Pursuant to the said permission accorded they proceeded to tender/auction the various shops, places etc. during the coming festival session. Admittedly, the petitioner was a bidder of one of the rooms at Sabarimala. It is also not in dispute that he was a successful bidder of two rooms Nos.58 and 59 in the previous year. But this year he give up his claim on one of the rooms and he did not submit any tender in respect of one of the two rooms. He submitted a tender for stall No.58. The point in dispute is whether the room to which he bid is earmarked towards for a hotel. According to him there was a change in the number subsequent to the auction which is denied in the counter affidavit and the absence of any material, we cannot decide the disputed facts. Prima facie the proof adduced in the case clearly shows that a layout plan prepared was for room No.58 and 59 and according to the counter affidavit filed there was no change in the number also. Admittedly both are adjacent rooms. Though the petitioner would say that one room faces the east and other faces the west, it is denied by the respondent. The point is whether the entry to both the rooms is from the same direction namely east or west or whether entry to one room is from east and the other from west. There is lack of clarity in this regard. Admittedly the petitioner did not participate in respect of the other room and the present room is earmarked for the hotel. The petitioner is not W.P(C) No.29842 of 2009-A : 5 : interested in running the hotel. Therefore the question of re-auction for the hotel does not arise nor can we direct the Board to change the number. Further, the successful bidder of the hotel is not made a party in the writ petition. Therefore the petitioner is not entitled for any such relief. 4. However the petitioner states that his bid is towards the room having a frontage from east and has submitted the bid. The layout plan and the other details are placed on the notice board and sufficient care should have been taken. But in the case of the petitioner, he has occupied both the rooms and there is the likelihood of mistake being committed by him bonafidely as to which of the room is really numbered as 58 and 59. We think the only relief which can be granted is to refund the amount to him and to re-auction the room. The learned standing counsel appearing on behalf of the Board submits that since the petitioner ought to have verified the layout plan and other details and in case re-auction is conducted, if it did not fetch the same amount then the deficit will have to be met by him. That is the normal rule. But the circumstances as pointed out requires to draw a distinction from the other cases. We feel that if there is a bonafide mistake as pointed out, the party shall not be allowed to suffer on that account. But this will not W.P(C) No.29842 of 2009-A : 6 : form precedents. In such circumstances we direct to refund the amount to the petitioner but only after the re-auctioning of the room is completed and after the petitioner vacates the room. Sd/- P.R.RAMAN (JUDGE) Sd/- P.R.RAMACHANDRA MENON (JUDGE) //True Copy// PA to Judge ab