Alappuzha Anandanarayanapuram Thuravur Thirumala Devaswom Election Commission v. Sajith Pai and others (OP(C). No. 2496 of 2016)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 8TH DAY OF FEBRUARY 2017/19TH MAGHA, 1938** **OP(C).No. 2496 of 2016 (O) ---------------------------** **ORDER DTD.5.10.2016 IN IA.1411/2016, IA.1414/2016, IA.1416/2016, IA.1418/2016, IA.1420/2016, IA.1422/2016, IA.1424/2016, IA.1426/2016, IA.1431/2016, IA.1433/2016 & IA.1438/2016 IN OS.8/1958 OF DISTRICT COURT, ALAPPUZHA** **.......** **PETITIONER(S):** **-------------** **1. ALAPPUZHA ANANDANARAYANAPURAM THURAVUR THIRUMALA DEVASWOM ELECTION COMMISSION, ANANDANARAYANAPURAM TEMPLE, ALAPPUZHA-688 011, REPRESENTED BY ITS COMMISSION MEMBER, R.KRISHNAKUMAR, S/O.M.RAMA SHENOY, AGED 58 YEARS, RESIDING AT PUTHANMADOM, A.N.PURAM, ALAPPUZHA-688 011.** **2. R.KRISHNAKUMAR, S/O.M.RAMA SHENOY, AGED 58 YEARS, COMMISSION MEMBER, ALAPPUZHA ANANDANARAYANAPURAM THURAVUR THIRUMALA DEVASWOM ELECTION COMMISSION, ANANDANARAYANAPURAM TEMPLE, ALAPPUZHA-688011, RESIDING AT PUTHANMADOM, A.N.PURAM, ALAPPUZHA-688011.** **3. DR.MADHUKARA PAI, S/O.REGHUNATHA PAI, AGED 65 YEARS, COMMISSION MEMBER, ALAPPUZHA ANANDANARAYANAPURAM THURAVUR THIRUMALA DEVASWOM ELECTION COMMISSION, ANANDANARAYANAPURAM TEMPLE, ALAPPUZHA-688 011, RESIDING AT SREEPADAM, A.N.PURAM, ALAPPUZHA-688 011.** **4. NANDAKUMAR, S/O.K.K.ANANDA PAI, AGED 66 YEARS, COMMISSION MEMBER, ALAPPUZHA ANANDANARAYANAPURAM THURAVUR THIRUMALA DEVASWOM, ELECTION COMMISSION, ANANDANARAYANAPURAM TEMPLE,ALAPPUZHA-688 011, RESIDING AT KALATHIPARAMBIL HOUSE, THIRUMALA BHAGOM P.O., THURAVUR, ALAPPUZHA-688 540.** **BY ADVS.SRI.C.A.CHACKO SMT.C.M.CHARISMA SMT.MEGHA K.XAVIER** **msv/** **-2-** **-2-** ## **OP(C).No. 2496 of 2016 (O)** ## **---------------------------** ## **RESPONDENT(S):** ## **--------------** ## **1. SAJITH PAI,** - **S/O.RENGANATHA PAI, AGED 57 YEARS, RESIDING AT KALAPARAMBATH, 20/26, ASHOKA LANE, ALUVA-683 101.** ## **2. VASANTHAKUMAR K.,** - **S/O.KRISHNA RAO, AGED 57 YEARS, ALUMMOOTTIL MADOM, KOMANA, ALAPPUZHA VILLAGE, AMBALAPUZHA-688 561.** ## **3. UMESH PAI,** - **S/O.NARAYANA PAI, AGED 43 YEARS, VALLAVEETTIL, VARAPUZHA VILLAGE, VARAPUZHA P.O., ERNAKULAM-683 517.** ## **4. V.KRISHNAKUMAR MALLAN,** - **S/O.VASUDEVA MALLAN, AGED 54 YEARS, NANDANAM, A.N.PURAM, KIZHAKKENADA, MULLACKAL VILLAGE, ALAPPUZHA-688 001.** ## **5. RENGA NAIK,** - **S/O.RAGHAVENDRA NAIK, AGED 69 YEARS, T.C.68/350, KAVITHA, THIRUVALLAM P.O., THIRUVALLAM VILLAGE, THIRUVANANTHAPURAM-695027.** ## **6. J.RADHAKRISHNA NAIK** **S/O.JANARDHANA NAIK, AGED 60 YEARS, REVATHY NIVAS, CMC NO.29, CONVENT ROAD, CHERTHALA NORTH VILLAGE, CHERTHALA-688 524.** **7. RADHAKRISHNAN S.,** - **S/O.SARVOTHAMA PAI, AGED 50 YEARS, MELEZHATH HOUSE, PURAKKAD VILLAGE, PURAKKAD P.O., ALAPPUZHA-673 522.** ## **8. NAGENDRA BHAKTHAN,** - **S/O.JANARDHANA BHAKTHAN, AGED 68 YEARS, THUNDU MADOM, KOZHENCHERY VILLAGE, KOZHENCHERY-689 541.** **9. MOHANA CHANDRA RAO,** - **S/O.ARJUNA PAI, AGED 51 YEARS, AMBALATHUNGAL MADOM, THOTTAPUZHASSERY PANCHAYAT, MARAMON MURI, MARAMON P.O., KOIPURAM TALUK, PATHANAMTHITTA DISTRICT-689 549.** **msv/** **-3-** **-3-** ## **OP(C).No. 2496 of 2016 (O) ---------------------------** ## **10. DILJITH** **S/O.VASUDEVA SHENOY, AGED 36 YEARS, THOTTUMKARA MADOM, AMBALAPUZHA MURI, AMBALAPUZHA VILLAGE, ALAPPUZHA-688 561.** ## **11. SANTHOSHKUMAR,** **S/O.RENGANATHA PAI, AGED 46 YEARS, UDUMBANATTU HOUSE, PALLIPURAM P.O., PALLIPURAM, CHERTHALA, ALAPPUZHA-688 524.** **12. ALAPPUZHA ANANDANARAYANAPURAM THURAVUR THIRUMALA DEVASWOM ANANDANARAYANAPURAM TEMPLE, ALAPPUZHA-688 011, REPRESENTED BY ITS PRESIDENT J.RADHAKRISHNA NAIK, RESIDING AT REVATHI NIVAS, CMC 29, CHERTHALA.** **R1 BY ADVS. SRI.A.S.P. KURUP SRI.SADCHITH P.KURUP R2 & R8 BY ADVS. SRI.M.P.RAMNATH SRI.P.RAJESH (KOTTAKKAL) SRI.M.VARGHESE VARGHESE SMT.UMA R.KAMATH SMT.S.SANDHYA SRI.BEPIN PAUL SRI.SHALU VARGHESE R3, R4, R5 & R7 BY ADV. SRI.R.AZAD BABU R6 BY ADV. SRI.S.B.PREMACHANDRA PRABHU R9 BY ADV. SRI.K.N.VENUGOPALA PANICKER R10 BY ADVS. SRI.V.SANTHARAM SRI.P.S.SISHOY SRI.LAKSHMEESH.S.KAMATH R12 BY ADVS. SRI.R.LAKSHMI NARAYAN SMT.R.RANJINI SRI.M.ASHOK KINI** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 08-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **OP(C).No. 2496 of 2016 (O) --------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1 TRUE COPY OF ELECTION NOTIFICATION ISSUED BY PETITIONERS.** **EXHIBIT P2 TRUE COPY OF NOMINATION OF 1ST RESPONDENT.** **EXHIBIT P3 TRUE COPY OF COMMUNICATION DATED 29-9-2016 ISSUED TO THE 1ST RESPONDENT.** **EXHIBIT P4 TRUE COPY OF COMMUNICATION DATED 29-9-2016 ISSUED TO THE 2ND RESPONDENT.** **EXHIBIT P5 TRUE COPY OF COMMUNICATION DATED 29-9-2016 ISSUED TO THE 3RD RESPONDENT.** **EXHIBIT P6 TRUE COPY OF COMMUNICATION DATED 29-9-2016 ISSUED TO THE 4TH RESPONDENT.** **EXHIBIT P7 TRUE COPY OF COMMUNICATION DATED 30-9-2016 ISSUED TO THE 5TH RESPONDENT.** **EXHIBIT P8 TRUE COPY OF COMMUNICATION DATED 29-9-2016 ISSUED TO THE 6TH RESPONDENT.** **EXHIBIT P9 TRUE COPY OF COMMUNICATION DATED 29-9-2016 ISSUED TO THE 7TH RESPONDENT.** **EXHIBIT P10 TRUE COPY OF COMMUNICATION DATED 29-9-2016 ISSUED TO THE 8TH RESPONDENT.** - **EXHIBIT P11 TRUE COPY OF COMMUNICATION DATED 1-10-2016 ISSUED TO THE 9TH RESPONDENT.** - **EXHIBIT P12 TRUE COPY OF COMMUNICATION DATED 29-9-2016 ISSUED TO THE 10TH RESPONDENT.** - **EXHIBIT P13 TRUE COPY OF I.A.NO.1411/2016 IN OS.NO.8/1958 FILED BY 1ST RESPONDENT.** **EXHIBIT P14 TRUE COPY OF ORDER DATED 30-9-2016 IN EXT. P13.** - **EXHIBIT P15 TRUE COPY OF JUDGMENT DATED 4-10-2016 IN OPC NO.2424/2016.** - **EXHIBIT P16 TRUE COPY OF COMMON ORDER DATED 5-10-2016 OF DISTRICT COURT ALAPPUZHA IN I.A.NO.1411/2016 AND OTHER CONNECTED IAS** **msv/** **-2-** **-2-** ## **OP(C).No. 2496 of 2016 (O) ---------------------------** **EXHIBIT P17 TRUE COPY OF ORDER IN I.A.NO.687/2016 IN O.S.NO.8/1958 DATED 28-6-2016.** **EXHIBIT P18 TRUE COPY OF RELEVANT PAGES OF SCHEME OF 12TH RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** - **EXT.R4(a): TRUE COPY OF IA.NO.1416/2016 SUBMITTED IN OS.NO.8/1958 OF THE DISTRICT COURT, ALAPPUZHA BY THE 3RD RESPONDENT.** - **EXT.R4(b): TRUE COPY OF THE OBJECTIONS DTD.3.10.2016 IN RESPECT OF DO SUBMITTED BY THE PETITIONERS.** - **EXT.R4(c): TRUE COPY OF IA.NO.1418/2016 SUBMITTED IN OS.NO.8 OF 1958 OF THE DISTRICT COURT, ALAPPUZHA BY THE 4TH RESPONDENT.** - **EXT.R4(d): TRUE COPY OF THE OBJECTIONS DTD.3.10.2016 IN RESPECT OF DO SUBMITTED BY THE PETITIONERS.** - **EXT.R4(e): TRUE COPY OF IA.NO.1420/2016 SUBMITTED IN OS.NO.8/1958 OF THE DISTRICT COURT, ALAPPUZHA BY THE 5TH RESPONDENT.** - **EXT.R4(f): TRUE COPY OF THE OBJECTIONS DTD.3.10.2016 IN RESPECT OF DO SUBMITTED BY THE PETITIONERS.** - **EXT.R4(g): TRUE COPY OF IA.NO.1424/2016 SUBMITTED IN OS.NO.8/1958 OF THE DISTRICT COURT, ALAPPUZHA BY THE 7TH RESPONDENT.** - **EXT.R4(h): TRUE COPY OF THE OBJECTIONS DTD.3.10.2016 IN RESPECT OF DO SUBMITTED BY THE PETITIONERS.** ## **//TRUE COPY//** **P.S.TO JUDGE** **Msv/** **A. MUHAMED MUSTAQUE, J. ---------------------------------O.P(C). No.2496 of 2016 ---------------------------------Dated this the 8[th] day of February, 2017** ## **JUDGMENT** The Alappuzha Anandanarayanapuram Thuravur Thirumala Devaswom is a Hindu Public Religious Trust. The administration of the above Devaswom is governed by the Scheme framed by the District Court, Alappuzha in O.S. No.8 of 1958. 2. This original petition is filed by an Election Commission, which was constituted by the General Body. In the process of election, certain nominations received by the Election Commission have been rejected. This resulted in such candidates approaching the District Court. The District Court originally allowed such challenge by a non-speaking order. This was challenged before this Court in an original petition at the instance of Election Commissioner and members of the Election Commission. This Court set aside the order with a direction to **O.P(C). No.2496 of 2016** **2** reconsider the matter including the maintainability. Thereafter, the Court below passed an elaborate order produced as Ext.P16 and found that rejection of nomination is erroneous and illegal. This order is challenged by the petitioners, the election commission, in this original petition. 3. It is to be noted that the challenge made by the candidates before the District Court is not by invoking any original jurisdiction of the Court, but based on the Scheme approved by the Court and in terms of the Scheme. That means, the Court retains the control in relation to the administration as well as election if so warranted. In that sense, it has to be understood that it was not an adjudication of normal nature and was an exercise of power that is referable to the Scheme. In that background, the question raised by the Election Commission has to be adverted. 4. The first point which is urged before this Court is that, the Court below did not advert to the maintainability of the election petition. The very case of the Election Commission is that **O.P(C). No.2496 of 2016** **3** once selection process is commenced, no Court shall interfere with the process of election. Secondly, it is argued that the rejection was on valid grounds and the Court could not have interfered with such order, except otherwise through a properly constituted election petition after the election is over. 5. In regard to the first argument regarding the maintainability, in fact the Court below adverted to the above aspects, the Court below relying on the judgment of the Hon'ble Supreme Court in _**Manda Jagannath v. K.S. Retnam and Others [(2004) 7 SCC 492]**_ held that an erroneous action of Returning Officer can be interfered even before election is concluded. The question therefore is whether that decision regarding maintainability is correct or not. It is noted that this Court exercising power under Article 227 of the Constitution of India, need not upset finding on a fact unless such finding is so perverse or erroneous. In that scenario like this Court cannot hold that the Court below exceeded its jurisdiction or failed to exercise its jurisdiction. The Court have adopted _parens patriae_ **O.P(C). No.2496 of 2016** **4** role for the public trust, therefore the Court has every power to ensure that the election is conducted in terms of the Scheme. Thus, the Court below appreciated the decision of the Election Commissioner in a perspective, in which it ought to have required to be addressed. Having addressed such dispute in terms of the Scheme and bylaw, this Court is of the view that there is no other maintainability issue arises to be considered by the Court. In this regard, the merit of the contention is essentially on a finding of facts. The Court below appreciated the given facts and found that the decision to reject the nomination is improper, illegal and is liable to be set aside. This Court cannot interfere with such a decision of the Court below as an appellate Court. Having considering the facts and circumstances, this Court is of the view that there is no scope of interfering with the order. Accordingly, declining the jurisdiction, the above original petition is dismissed. However, it is open for the Election Commission to fix a new schedule for completing the exercise, based on the original **O.P(C). No.2496 of 2016** **5** notification, from the stage where it was stopped, accepting the nomination of such candidates in terms of the impugned order. Sd/- **A. MUHAMED MUSTAQUE, JUDGE.** //True Copy// P.A. to Judge sp/09/02/17