C.Achuthankutty vs The Malabar Devaswom Board
2023 Latest Caselaw 314 Ker

         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 11TH 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

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.

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 2 nd

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

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 4 th

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

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

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

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

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

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

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.

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

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.

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.

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