Chowallur Sivakshethra Bharana Samithi & Sri K. Ramadas v. The Commissioner, Cochin Devaswom Board & 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 13[TH] DAY OF JULY 2022 / 22ND ASHADHA, 1944** **R.P NO.547 OF 2022** **AGAINST THE ORDER DATED 03.06.2022 IN I.A.NO.4 OF 2022 IN R.P.NO. 463 OF 2019 IN W.P.(C) NO.37991 OF 2018 OF THIS HONOURABLE HIGH COURT OF** ## **KERALA AT ERNAKULAM** ## **REVIEW PETITIONERS/PETITIONERS/RESPONDENTS 4 & 5:** - **1 CHOWALLUR SIVKSHETHRA BHARANA SAMITHI CHOWALLUR DEVASWOM, KANDANASSERY P.O., THALAPPILLY TALUK, THRISSUR DISTRICT, KERALA PIN-680 102** - **2 SRI.K.RAMADAS, RESIDING AT FLAT NO.4H(1), SREEMADHAVAM, KOLADIPADI SH 49, THAIKKAD, GURUVAYUR-680 104, THE FORMER SECRETARY, CHOWALLUR SIVA KSHETHRA BHARANASAMITHI, CHOWALLUR DEVASWOM, KANDANASSERY P.O., THALAPPILLY TALUK, THRISSUR -680 102** **BY ADV. M.V.S.NAMPOOTHIRY** ## **RESPONDENTS/REVIEW PETITIONERS AND RESPONDENS 1 TO 3:** - **1 THE COMMISSIONER, COCHIN DEVASWOM BOARD THRISSUR-680 001** - **2 THE SECRETARY, COCHIN DEVASWOM BOARD, THRISSUR-680 001** - **3 THE SECRETARY, CHOWALLUR SIVAKSHETHRA PARIPALANA SAMITHI (REGD).,** - **CHOWALLUR DEVASWOM, KANDANASSERY P.O., THALAPPILLY TALUK, THRISSUR DISTRICT, -680 102** - **4 THE SECRETARY, DEPARTMENT OF DEVASWOM, SECRETARIATE, THIRUVANANTHAPURAM-695 001** - **5 CHOWALLUR SIVAKSHETHRA BHARANASAMITHI, CHOWALLUR P.O., KANDANASSERY , THRISSUR DISTRICT, -680 102, REPRESENTED BY ITS SECRETARY.** ## **SR.GP - S.RAJMOHAN** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 13.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.P.No.547 of 2022 in I.A.No.4 of 2022 in RP No.463 of 2019 in W.P.(C) No.37991 of 2018 ## **O R D E R** ## Anil K. Narendran, J. The petitioners, namely, Chowallur Sivakshethra Bharana Samithi and its former Secretary, have filed this review petition seeking review of the order of this Court dated 03.06.2022 in I.A.No.4 of 2022 in R.P.No.463 of 2019 in W.P.(C) No.37991 of 2018, invoking the provisions under Order XLVII Rule 1 of the Code of Civil Procedure, 1908. 2. Heard the learned counsel for the petitioners, the learned Standing Counsel for Cochin Devaswom Board and also the learned counsel for the party respondents. 3. The learned counsel for the petitioners would contend that, in view of Annexure 1 judgment of this Court dated 11.08.2021 in W.P.(C) No.37932 of 2018, 204 out of 226 persons included in the list enclosed along with covering letter dated 24.02.2020 in paragraph 8 of Report No.3 filed by the previous Advocate Commissioner, who have already been admitted in the year 2020, who are included in Annexure 3 list and remitted the requisite amount as per Annexure 4 Bank statement, may not be directed to apply in the new format and pay membership fee 3 R.P.No.547 of 2022 in I.A.No.4 of 2022 in RP No.463 of 2019 in W.P.(C) No.37991 of 2018 again. Further, in the new format of application, there is no provision for the applicants to be recommended by an existing member in the General Body, to avoid bogus applications and also admission of ineligible persons. 4. The relevant portion of paragraph 1 of Annexure 1 order dated 11.08.2021 in W.P.(C) No.37932 of 2018 reads thus; “The reports would reveal that in the light of the orders passed by this Court on the question of eligibility of persons to obtain membership in the Samithi the Advocate Commissioner has taken decisions on the applications. That apart, in respect of persons who are already members, but in arrears due to the Samithi also he has taken decisions. The learned Advocate Commissioner would submit that though he had taken decisions on such matters, the exact amounts to be collected towards arrears from the already existing members and from the applicants who are found to be eligible to be enrolled as members could not be ascertained and collected, due to the non cooperation of respondents 3 and 4. We may hasten to add that, today the learned counsel appearing for respondents 3 and 4 would submit that he would also cooperate for conduct of Samithi election. Besides that, he would submit that, on 24.02.2020, the Bharana Samithi received certain applications for membership and amounts were collected from them for admitting them as members. The amounts collected were already deposited in the account of the Devaswom, it is further submitted. However, in regard to the eligibility of such persons, the 4 R.P.No.547 of 2022 in I.A.No.4 of 2022 in RP No.463 of 2019 in W.P.(C) No.37991 of 2018 Advocate Commissioner is yet to take any decision. It is to be noted that the term of the lastly elected committee to the Bharana Samithi of Chowallur Sivakshetram had expired in the year 2017. The election could not be conducted despite the passage of orders of this Court. …………………… The Advocate Commissioner shall decide on the eligibility of the membership of persons from whom respondents 3 and 4 have already received applications along with necessary fee, which is said to have been deposited in the accounts of the Devaswom. If such applications along with the documents showing deposit of such amounts on or before 28.02.2020 are produced, the Advocate Commissioner shall take a decision on the eligibility of such persons. The ad-hoc committee shall intimate the Advocate Commissioner with respect to the amounts payable by those members who are in arrears and who are found to be entitled to be included in the voters list by the Advocate Commissioner. The amount now to be collected from persons whose applications for membership have been considered and found fit to be enrolled as members by the Advocate Commissioner shall also be intimated. Upon getting such information from the ad-hoc committee, the Advocate Commissioner shall entrust the amount already collected from such persons with the ad-hoc committee. The ad-hoc committee, upon receiving the same shall collect any further amount if inquired to be collected from such persons, and then the entire amount, thus collected, shall be deposited in the account of the Devaswom. After such exercise, the Advocate Commissioner shall prepare a final voters list taking the date for deciding the eligibility of 5 R.P.No.547 of 2022 in I.A.No.4 of 2022 in RP No.463 of 2019 in W.P.(C) No.37991 of 2018 members to enroll as voters for the purpose of election as on 28.02.2020, within a period of two months. After publication of voters list, election shall be conducted to the Bharana Samithi within a further period of one month.” (underline supplied) 5. On 03.06.2022, it was ordered that, while issuing the notification, the Advocate Commissioner shall permit 226 persons included in the list enclosed along with the covering letter dated 24.02.2020 to submit application in the format now approved by this Court. Paragraphs 8 and 9 of the order dated 03.06.2022 read thus; “8. Paragraph 8 of the Interim Report No.3 filed by the previous Advocate Commissioner, which is one dated 16.03.2020, reads thus; “It is submitted that Mr.Ramdas Chowalloor had sent me a list of 226 persons along with a covering letter dated 24.02.2020 stating that these persons had submitted the applications before him for getting themselves enrolled in the committee. I have informed him that this Honourable Court has directed me to consider only the applications for new membership submitted before the Cochin Devaswom Board which was mentioned in the memorandum of review petition. This was also mentioned to other persons also when they asked me whether they can submit applications for membership to me. Since, I had informed the 6 R.P.No.547 of 2022 in I.A.No.4 of 2022 in RP No.463 of 2019 in W.P.(C) No.37991 of 2018 people that new applications for the membership in the bharanasamithi cannot be accepted by me, I have decided not to include these 226 new applicants in the voters list.” 9. While issuing the notification, the Advocate Commissioner shall permit 226 persons included in the list enclosed along with the covering letter dated 24.02.2020 to submit application in the format now approved by this Court.” 6. During the course of arguments, the learned counsel for the petitioners could not point out any material to show that the previous Advocate Commissioner had taken a decision on the eligibility of those applicants for membership. Therefore, 226 persons included in the list enclosed along with the covering letter dated 24.02.2020 have to submit application in the format now approved by this Court. However, any applicant included in Annexure 3 list, on production of proof regarding payment of membership fee on or before 28.02.2020, need not pay membership fee along with the application submitted in the format now approved by this Court. 7. In paragraph 12 of the order dated 11.02.2022, we found considerable force in the submission made the learned counsel for Chowallur Shiva Kshetra Paripalana Samithi and also the learned Standing Counsel for Cochin Devaswom Board that the 7 R.P.No.547 of 2022 in I.A.No.4 of 2022 in RP No.463 of 2019 in W.P.(C) No.37991 of 2018 attempt of Chowallur Shiva Kshetra Bharanasamithi and its Secretary is to see that no new members are inducted before the conduct of election. 8. In the order dated 07.04.2022, we found that before the conduct of election to the Bharanasamithi of Chowallur Shiva Kshetram, as per the provisions under Chowallur Shiva Kshetra Bharana Scheme, which is placed on record as Ext.P4 in W.P. (C)No.37932 of 2018, a reasonable opportunity has to be given to those who are having the eligibility criteria prescribed in Clause 9 of the said Scheme for getting membership. Similarly, a reasonable opportunity has to be given to the existing members to clear their dues, if any, in order to exercise their voting right in the election to the Bharanasamithi. The learned counsel for Chowallur Shiva Kshetra Paripalana Samithi pointed out that the elegibility criteria for membership in the Bharanasamithi of Chowallur Shiva Kshetram should be in accordance with the provisions under Clause 9 of the Chowallur Shiva Kshetra Bharana Scheme. However, in Annexure R5(c) form of membership application produced by the petitioners herein (respondents 4 and 5 therein), additional eligibility criteria has been prescribed, which is legally 8 R.P.No.547 of 2022 in I.A.No.4 of 2022 in RP No.463 of 2019 in W.P.(C) No.37991 of 2018 impermissible. 9. Insofar as the aforesaid submission made by the learned counsel for Chowallur Shiva Kshetra Paripalana Samithi is concerned, we found in the order dated 07.04.2022 that the eligibility criteria for membership has to be strictly in accordance with the provisions under Clause 9 of the Chowallur Shiva Kshetra Bharana Scheme and the petitioners herein (respondents 4 and 5 therein) have absolutely no right or authority to insist for any additional eligibility criteria for such membership. Therefore, the form of application for membership should be one prepared in accordance with the provisions under Clause 9 of the Scheme. Therefore, the petitioners cannot seek review of the order dated 03.06.2022 on the ground that there is no provision in the new format of application for the applicants to be recommended by an existing member in the General Body. ## 10. In **Thungabhadra Industries Ltd v. Government of Andhra Pradesh [AIR 1964 SC 1372]** the Apex Court held that, review is, by no means an appeal in disguise, whereby an erroneous decision is reheard and corrected, but lies only for correcting patent errors. 9 R.P.No.547 of 2022 in I.A.No.4 of 2022 in RP No.463 of 2019 in W.P.(C) No.37991 of 2018 11. In **Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [(1980) 2 SCC 167]** the Apex Court held that, if the view adopted by the Court in the original judgment is a possible view, having regard to what the record states; it is difficult to hold that there is error apparent on the face of the record. 12. In **Lily Thomas v. Union of India [(2006) 3 SCC 224]** the Apex Court reiterated that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. 13. Viewed in the light of the law laid down in the decisions referred to supra, we find no reason to entertain this review petition and the same is accordingly dismissed, however, subject to the clarification contained hereinbefore at paragraph 6 of this order. No order as to costs. ## **Sd/ANIL K. NARENDRAN JUDGE** ## **Sd/P.G. AJITHKUMAR JUDGE** PV 10 R.P.No.547 of 2022 in I.A.No.4 of 2022 in RP No.463 of 2019 in W.P.(C) No.37991 of 2018 ## **APPENDIX OF RP 547/2022** ## **PETITIONER ANNEXURES** |**Annexure**|**1**|**TRUE COPY OF THE JUDGMENT DATED**| |---|---|---| |||**11.08.2021 IN WPC NO.37932 OF 2018 OF**| |||**THIS HON'BLE HIGH COURT**| |**Annexure**|**2**|**CERTIFIED COPY OF THE ORDER DATED**| |||**03.06.2022 IN IA NO.4/2022 OF THIS**| |||**HON'BLE COURT**| |**Annexure**|**3**|**TRUE COPY OF THE LIST OF APPLICATIONS**| |||**CONTAINING THE MEMBERSHIP NUMBER, AMOUNT**| |||**PAID ETC**| |**Annexure**|**4**|**TRUE COPY OF THE LEDGER ACCOUNT OF**| |||**ACCOUNT NO.12560100095669 AT THE FEDERAL**| |||**BANK CHOWALLUR IN FAVOUR OF CHOWALLUR**| |||**DEVASWOM.**|