BSS Educational Society & The Principal, B.S.S. Gurukulam High School, Alathur, Palakkad District v. State of Kerala & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` # **`THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON ``` ``` WEDNESDAY, THE 17[TH] DAY OF JULY 2024 / 26TH ASHADHA, 1946 WA NO. 783 OF 2022 ``` ``` AGAINST THE JUDGMENT DATED 25.05.2022 IN WP(C) NO.14550 OF 2022 OF HIGH ``` ## **`COURT OF KERALA`** ``` APPELLANTS/PETITIONERS: ``` - **`1 BSS EDUCATIONAL SOCIETY, ALATHUR P.O., PALAKKAD DISTRICT 678541, REPRESENTED BY ITS PRESIDENT.`** - **`2 THE PRINCIPAL, B.S.S. GURUKULAM HIGHER SECONDARY SCHOOL, ALATHUR, PALAKKAD DISTRICT - 678541.`** ``` BY ADVS. GEORGE POONTHOTTAM (SR.) NISHA GEORGE ``` ## **`RESPONDENTS/RESPONDENTS IN W.P.(C):`** - **`1 STATE OF KERALA, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -695001.`** - **`2 DIRECTOR OF GENERAL EDUCATION, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THYCAUD, THIRUVANANTHAPURAM DISTRICT - 695 014.`** - **`3 THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD, OFFICE AT CIVIL STATION, KENATHUPARAMBU, KUNATHURMEDU, PALAKKAD - 678001.`** - **`4 THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD, OFFICE AT MUNICIPAL COMPLEX, ROBINSON ROAD, OPPOSITE GOVERNMENT HOSPITAL, SANTHI NAGAR, PALAKKAD - 678014.`** - **`5 THE MANAGER, HOLY FAMILY CONVENT U.P. SCHOOL, ALATHUR, PALAKKAD DISTRICT - 678541. BY ADVS. GOVERNMENT PLEADER(B/O) JOSE ABRAHAM E.ADITHYAN`** ## **`OTHER PRESENT:`** ``` SRI. BIJOY CHANDRAN- SR. GP ``` ``` THIS WRIT APPEAL HAVING COME UP FOR HEARING ON 17.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 W.A.No.783 of 2022 ## **JUDGMENT** Harisankar V. Menon, J. This writ appeal is instituted by the petitioners in W.P.(C)No.14550 of 2022 before this Court. By the impugned judgment dated 25.05.2022, a learned Single Judge has found that the writ petition is bereft of relevant particulars and has, therefore, dismissed the same with liberty to file a fresh writ petition with better particulars. 2. The 1[st ] petitioner in the writ petition is a society, which is running a school and the 2[nd] petitioner is its principal. The petitioners have filed the writ petition challenging Ext.P1 Government Order by which recognition for classes VIII to X has been granted to the 5[th] respondent therein. In the writ petition, the petitioners have relied upon Chapter V of the Kerala Education Rules (for short ‘KER’) to contend that there was no proper consideration of the prescribed criteria, while issuing Ext.P1 order. 3. We have heard the learned counsel appearing for the appellants, the learned Senior Government Pleader appearing for respondents 1 to 4 and the learned counsel appearing for the 5[th] respondent herein. 3 W.A.No.783 of 2022 4. The learned counsel appearing for the appellants has contended that Ext.P1 challenged in the writ petition cannot be sustained for the reasons stated in the writ petition and also on account of various documents produced along with the reply affidavit. 5. However, we notice that, as rightly found by the learned Single Judge, the writ petition is one without proper pleadings and necessary records. On a perusal of the writ petition, apart from producing Ext.P1 and relying on Chapter V and the Rules made thereunder, no relevant data have been produced or relied on by the petitioner. Counter affidavits have been filed in the writ appeal by the Government and by the 5[th] respondent herein. A reply affidavit is filed by the appellants to the counter affidavit filed by the 5[th] respondent herein. But pleadings are bereft in the writ petition. 6. In **Bharat Singh v. State of Haryana [(1988) 4 SCC 534]** the Apex Court held that, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition 4 W.A.No.783 of 2022 and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the Court will not entertain the point. The Apex Court held further that there is a distinction between a pleading under the Code of Civil Procedure, 1908 and a writ petition or a counter affidavit. While in a pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. ## 7. In **M/s.Larsen and Toubro Ltd. v. State of Gujarat** **[(1998) 4 SCC 387]** , the Apex Court was dealing with a case arising out of the proceedings initiated for the acquisition of land for M/s.Larsen and Toubro Ltd. under the provisions of the Land Acquisition Act, 1894. The Apex Court noticed that, in the absence of any allegation that Rule 3 of the Land Acquisition (Companies) Rules, 1963 had not been complied and there being no particulars in respect of non compliance of Rule 4 also, it is difficult to see as to how the High Court could have reached the finding that statutory 5 W.A.No.783 of 2022 requirements contained in these Rules were not fulfilled before issuance of notification under Section 4 and declaration under Section 6 of the Land Acquisition Act. High Court did not give any reason as to how it reached the conclusion that Rules 3 and 4 had not been complied in the face of the record of the case. Rather, it returned a finding which is unsustainable that it was "not possible on the basis of the material on record to hold that there was compliance with Rules 3 and 4". The Apex Court held that, it is not enough to allege that a particular Rule or any provision has not been complied. It is a requirement of good pleading to give details, i.e., particulars as to why it is alleged that there is non compliance with a statutory requirement. Ordinarily, no notice can be taken on such an allegation which is devoid of any particulars. No issue can be raised on a plea, the foundation of which is lacking. Even where rule nisi is issued, it is not always for the department to justify its action, when the court finds that a plea has been advanced without any substance, though ordinarily department may have to place its full cards before the court. On the facts of the case, the Apex Court found that the State has more than justified its stand that there has been compliance not only with Rule 4 but with Rule 3 as well, 6 W.A.No.783 of 2022 though there was no challenge to Rule 3, and the averments regarding non compliance with Rule 4 were sketchy and without any particulars whatsoever. High Court was, therefore, not right in quashing the acquisition proceedings. 8. In **Narmada Bachao Andolan v. State of Madhya Pradesh [(2011) 7 SCC 639]** a Three-Judge Bench of the Apex Court held that, it is a settled proposition of law that a party has to plead its case and produce/adduce sufficient evidence to substantiate the averments made in the petition and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question(s) in issue, so that the parties may adduce appropriate evidence on the said issue. It is settled legal proposition that as a rule, relief not founded on the pleadings should not be granted. Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues 7 W.A.No.783 of 2022 clearly defined and to prevent cases being expanded or grounds being shifted during trial. If any factual or legal issue, despite having merit, has not been raised by the parties, the court should not decide the same as the opposite counsel does not have a fair opportunity to answer the line of reasoning adopted in that regard. Such a judgment may be violative of the principles of natural justice. Therefore, we are of the opinion that there is no merit in this writ appeal and the same is only to be dismissed, however permitting the petitioner to file a proper writ petition with necessary pleadings and documents, if so advised. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **HARISANKAR V. MENON, JUDGE** Skk//20.07.2024 8 W.A.No.783 of 2022 ## **`APPENDIX OF WA NO.783 OF 2022`** ## **`PETITIONERS’ ANNEXURES:`** ``` ANNEXURE A1 TRUE COPY OF THE LOCATION PLAN SUBMITTED BYTHE 5[TH] RESPONDENT ANNEXURE A2 TRUE COPY OF THE DECLARATION DATED 24.09.2021, SUBMITTED ALONG WITH THE APPLICATION, BY THE 5[TH] RESPONDENT ``` ## **`RESPONDENTS’ ANNEXURES:`** ``` ANNEXURE R1(A) TRUE COPY OF THE INTERIM ORDER DATED, 11.04.2019 IN IA NO.3/2019 ANNEXURE R1(B) TRUE COPY OF G.O(P) NO. 45/2019/G.EDN. DATED, 22.05.2019 ANNEXURE R5 TRUE COPY OF THE MINORITY STATUS CERTIFICATE DATED 6[TH] DAY OF FEBRUARY 2013 ISSUED IN THE NAME OF THE “HOLY FAMILY CONVENT U.P. SCHOOL” ```