C.ACHUTHANKUTTY and SURENDRAN P. v MALABAR DEVASWOM BOARD and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 11[TH] DAY OF JANUARY 2023 / 21ST POUSHA, 1944 W.P.(C) NO. 36586 OF 2022** ## **PETITIONERS:** - **1 C.ACHUTHANKUTTY AGED 72 YEARS, S/O ACHUTHAN NAIR, ACHUTHAM, THOTTAKARA (P.O), OTTAPALAM, PALAKKAD DISTRICT, PINCODE-679101.** - **2 SURENDRAN.P,** **AGED 57 YEARS, S/O APPUKUTTY EZHUTHACHAN, PACHIREEKKATTIL HOUSE, THOTTAKARA (P.O), OTTAPALAM, PALAKKAD DISTRICT, PINCODE-679101.** **BY ADVS.** - **G.SREEKUMAR (CHELUR)** - **K.RAVI (PARIYARATH)** ## **RESPONDENTS:** - **1 THE MALABAR DEVASWOM BOARD, EPRESENTED BY ITS SECRETARY, OFFICE OF THE SECRETARY, HOUSE FED COMPLEX, ERANHIPALAM (P.O), KOZHIKODE,PIN-673006.** - **2 THE COMMISSIONER, MALABAR DEVASWOM BOARD, HOUSE FED COMPLEX, ERANHIPALAM (P.O), KOZHIKODE, PIN-673006.** - **3 THE ASSISTANT COMMISSIONER, MALABAR DEVASOM BOARD, CIVIL STATION, PALAKKAD, PIN-678001.** 2 W.P.(C) No.36586 of 2022 - **4 THE EXECUTIVE OFFICER, SREE CHINAKKATHOOR BHAGAVATHY TEMPLE, PALAPPURAM (P.O), OTTAPALAM, PALAKKAD DISTRICT, PIN-679103.** - **5 K. KARUNAKARAN, S/O C.S. NAIR, JAYA VIHAR, THOTTAKARA (P.O),OTTAPALAM, PALAKKAD DISTRICT, PIN 679101.** - **6 K. SIVADASAN, KATTANAKALAM, HOUSE, THOTTAKARA (P.O), OTTAPALAM, PALAKKAD DISTRICT, PIN-679101.** - **7 M.K. VINOD, S/O RAMACHANDRAN NAIR, AMBADI HOUSE, PALATTU ROAD, OTTAPALAM, PALAKKAD DISTRICT, PIN-679101.** - **8 T.P. PRADEEP KUMAR, S/O KUTTAPPA, THEKHEPURAKKAL HOUSE, THOTTAKARA (P.O), OTTAPALAM, PALAKKAD DISTRICT, PIN 679101.** **BY ADVS. Lakshmi Narayan R. SANTHEEP ANKARATH** - **J.RAMKUMAR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 03.01.2023, THE COURT ON 11.01.2023 DELIVERED THE FOLLOWING:** 3 W.P.(C) No.36586 of 2022 ## **JUDGMENT** ## P.G.Ajithkumar, J. The petitioners contested in the election to the Ottapalam Desom Pooraghosha Committee, which was to be constituted in connection with the Pooram Festival-2023 in Chinakkathoor Bhagavathy Temple, Palappuram in Ottapalam. They lost. Thereafter, they filed this Writ Petition invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. They seek a writ of certiorari quashing Ext.P6, and further to direct respondents No.1 to 4 to conduct a fresh election to the Ottapalam Desom Pooraghosha Committee. 2. The petitioners would contend that the election was not in compliance with the directions in Ext.P1 circular issued by the 2nd respondent, that due public notice regarding the election was not given, and that respondents No.5 and 6 along with their henchmen practically rig the election. The election thereby turned out to be a farce. The 6th respondent, who contested in the election, is not a resident of Ottapalam 4 W.P.(C) No.36586 of 2022 locality and the complaint in that regard was not considered by the 4th respondent-Executive Officer. For such reasons, the election of respondents No.5 and 6 as the office bearers of the Pooraghosha Committee was invalid. However, the 3rd respondent as per Ext.P6 approved the election. Ext.P6 is therefore illegal and liable to be set aside. 3. On 15.11.2022, when this matter came up for consideration, the learned Standing Counsel for the Malabar Devaswom Board took notice for respondents No.1 to 3. Notice was directed to be served on respondents No.4 to 8. 4. Respondents No.5 to 8 entered appearance through their learned counsel and filed a counter affidavit. Counter affidavit of the 3rd respondent was also placed on record. The petitioners have filed a reply affidavit producing therewith Exts.P7 to P9. 5. Heard the learned counsel appearing for the petitioners, the learned Standing Counsel for Malabar Devaswom Board and the learned counsel appearing for respondents No.5 to 8. 5 W.P.(C) No.36586 of 2022 6. The petitioners’ main plank of contention is that election held on 27.08.2022 to constitute the Ottapalam Desom Pooraghosha Committee was improper and illegal, since there was no due public notice and the direction in Ext.P1, circular dated 15.06.2007 issued by the 2nd respondent regulating the process of election were violated. The learned counsel appearing for the petitioners would contend that the public notice regarding the election was published in the newspaper of the same date, a copy of which is Ext.P3, and for that reason itself, the election is illegal. Although the learned counsel tried to substantiate the contention that the process of election was not in terms of the instructions issued in Ext.P1, no specific instance of violation has been pointed out, except that the election process was commenced without obtaining permission from the Devaswom Board or its authorities. 7. The learned Standing Counsel for the Malabar Devaswom Board and also the learned counsel appearing for respondents No.5 to 8, on the other hand, would contend that 6 W.P.(C) No.36586 of 2022 the election in question was held following the practice in the yesteryears and there occurred no irregularity or illegality. Respondents No.5 to 8 produced Ext.R6(b) which is a copy of the notice dated 20.08.2022 communication sent by the President/Secretary of Ottapalam Desa Committee to the 4th respondent regarding the meeting of the general body to be held on 27.08.2022. It is seen that after giving such an advance intimation to the 4th respondent-Executive Officer, the election notice was publicised. It is true that a news item regarding holding of the general body meeting to elect the Pooraghosha Committee was published in the newspaper only on the same day. That does not mean that a public notice was not given earlier. Exts.R6(c) to R6(f) are copies of the newspaper carrying news regarding election of the Desa Committee in the years 2017, 2019 and 2021. Those publications were either on the same day of election or on the previous day. Therefore, the fact that a news item regarding the election of the Ottapalam Desom Pooraghosha Committee on 27.08.2022 was published in the newspaper on the same 7 W.P.(C) No.36586 of 2022 day, cannot be a reason to hold that there occurred irregularity in the conduct of the election. 8. From the pleadings and the submissions across the bar, we find that it is two-tier election; the first round elections for constituting seven Desom Pooraghosha Committees, and the second to elect the Pooraghosha Committee for the conduct of the festival in Chinakkathoor Bhagavathy Temple, which alone is under the direct control of the Malabar Devaswom Board. As per Ext.P6, approval was given to the Ottapalam Desom Pooraghosha Committees, which is one among the seven Pooraghosham Desom Committees. After such a primary round of elections, office bearers of the Apex Body of Pooraghosha Committee was later constituted. Ext.R6(a) was issued on 24.12.2016 by the 3rd respondent regulating the constitution of the Pooraghosha Committee. 9. The petitioners approached this Court belatedly. It is true that on account of the delay only a Constitutional remedy shall not be denied. But, here the delay became fatal 8 W.P.(C) No.36586 of 2022 since the subsequent election would have taken place and the festival to take place soon. They are the candidates lost in the election this time, but persons elected during the last four years, which elections were held following the same procedure. Practically and essentially their plea is regarding the irregularity in the conduct of the election, but they clamoured the reliefs so as to get the order approving the committee, Ext.P6 set aside, without seeking to set aside the election, remedy for which lies elsewhere. In the circumstances, it cannot be said that the petitioner approached this Court with bona fides and placed all the necessary facts before the Court. The petitioners have failed to plead as to what are the irregularities in the election. Even regarding the delay and absence of sanction for the conduct of the election, facts such as, the period of notice prescribed, the kind of sanction required, etc. are not pleaded. 10. 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 9 W.P.(C) No.36586 of 2022 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 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 Code, 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. 11. 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 10 W.P.(C) No.36586 of 2022 noticed that, in the absence of any allegation that Rule 3 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 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 11 W.P.(C) No.36586 of 2022 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, 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. 12. 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 12 W.P.(C) No.36586 of 2022 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 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. 13 W.P.(C) No.36586 of 2022 13. Viewed in the light of the law laid down in the aforesaid decisions, the petitioners are not entitled to get the reliefs prayed for want of sufficient pleadings. On merits as well as on the ground of the delay also the Writ Petition fails. The Writ Petition is accordingly dismissed. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 14 W.P.(C) No.36586 of 2022 ## **APPENDIX OF WP(C) 36586/2022** **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE CIRCULAR WITH NO. H.R.H 5/8246/06 ISSUED AT THE INSTANCE OF THE 1ST RESPONDENT, DATED 15.06.07.** **EXHIBIT P2 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT, TO THE 4TH RESPONDENT, DATED 08.09.16.** **EXHIBIT P3 TRUE COPY OF THE PUBLIC NOTICE PUBLISHED IN MATHRUBHOOMI DAILY DATED, 27.08.22** **EXHIBIT P4 TRUE COPY OF THE COMMUNICATION, ISSUED BY THE 2ND RESPONDENT TO ONE DHARMARAJAN.U.P, INFORMING HIM ABOUT THE DIRECTION GIVEN TO THE 4TH RESPONDENT TO DECIDE, THE ISSUE, WHETHER THE 6TH RESPONDENT'S RESIDENTS COMES WITHIN THE AREA OF OTTAPALAM DESOM, DATED 22.02.21.** - **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED ON BEHALF OF THE PANEL HEADED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT, WITH COPY TO RESPONDENTS 2 TO 4, DATED NIL.** - **EXHIBIT P6 TRUE COPY OF THE ORDER PASSED AT THE INSTANCE OF THE 3RD RESPONDENT GIVING APPROVAL TO THE PANEL HEADED BY THE RESPONDENTS 5&6, AS THE OTTAPALAM DESOM, POORAGHOSHA COMMITTEE ,FOR THE YEAR 2003,DATED, 12.10.22.** **EXHIBIT P7** **TRUE COPY OF THE JUDGMENT, PASSED BY THIS HON'BLE COURT, IN W.P.(C) NO. 39624/2015, DATED 06.01.16.** 15 ## W.P.(C) No.36586 of 2022 **EXHIBIT P8 TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT, AS ORDER NO.J3.40/2016/MDB DATED 21.01.16.** **EXHIBIT P9** **TRUE COPY OF THE PUBLIC NOTICE CIRCULATED IN RESPECT OF THE CONDUCT OF CHINAKHATHOOR POORAM, ISSUED AT THE INSTANCE OF THE RESPONDENT 5 & 6, DATED NIL.** ## **RESPONDENT EXHIBITS** **EXHIBIT R6 A** **TRUE COPY OF THE CIRCULAR NO. J5/3433/2016/ MDB (K.DIS.) DATED 24.12.2016 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT R6 B TRUE COPY OF THE NOTICE THAT WAS PUBLISHED IN THE OFFICE NOTICE BOARD OF THE DEVASWOM AND DATED 20.8.2022.** **EXHIBIT R6 C** **TRUE COPY OF NOTICE PUBLISHED IN JANMABHOOMI DAILY DATED 28.4.2017.** **EXHIBIT R6 D** **TRUE COPY OF NOTICE PUBLISHED IN SIRAJ DAILY DATED 4.11.2019.** **EXHIBIT R6 E TRUE COPY OF NOTICE PUBLISHED IN DESHABHIMANI DAILY DATED 3.11.2020.** **EXHBIT R6 F TRUE COPY OF NOTICE PUBLISHED IN SIRAJ DAILY DATED 4.11.2021.** **EXHIBIT R6 G TRUE COPY OF TITLE DEED OF THE SOCIETY NUMBERED AS DOC. NO. 2536/2001 DATED 30.7.2001.** **EXHIBIT R6 ( H ) TRUE COPY OF COMPLAINT FILED BY THE 2ND WRIT PETITIONER AND OTHERS BEFORE THE CIRCLE INSPECTOR OF POLICE, OTTAPALAM ON 10.9.2015.** 16 W.P.(C) No.36586 of 2022 **EXHIBIT R-3(A) THE TRUE COPY OF THE PROCEEDINGS/ORDER DATED 30.12.2017 EXHIBIT R-3(B) THE TRUE COPY OF THE PROCEEDINGS/ORDER DATED 01.12.2018 EXHIBIT R-3(C) THE TRUE COPY OF THE PROCEEDINGS/ORDER DATED 28.01.2021 EXHIBIT R-3(D) THE TRUE COPY OF THE PROCEEDINGS/ORDER DATED 09.12.2021**