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2024 DIGILAW 929 (KER)

VINOD S. R. S/O S. RAMACHANDRAN v. TRAVANCORE DEVASWOM BOARD

2024-07-29

ANIL K.NARENDRAN, HARISANKAR V.MENON

body2024
JUDGMENT : ANIL K. NARENDRAN, J. 1. The petitioner, who is a devotee of Sree Krishna Swamy Temple, Neyyattinkara, which is a temple under the management of the 1st respondent Travancore Devaswom Board, has filed this writ petition, invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 communication dated 22.01.2024 issued by the 3rd respondent Deputy Devaswom Commissioner, (P&SGRC), issued on behalf of the 2nd respondent Devaswom Commissioner, Ext.P5 list dated 29.01.2024 of members of the newly elected Temple Advisory Committee of Sree Krishna Swami Temple, Neyyattinkara; and Ext.P6 communication dated 01.02.2024 of the 3rd respondent Deputy Devaswom Commissioner (P&SGRC), issued on behalf of the 2nd respondent Devaswom Commissioner, whereby the 4th respondent Assistant Devaswom Commissioner, Neyyattinkara has been informed that approval has been granted to the Temple Advisory Committee of that temple with the members in Ext.P5 list. Ext.P4 communication dated 22.01.2024 refers Ext.P3 judgment of this Court dated 22.02.2023 in W.P.(C)No. 9241 of 2021 and connected matters, i.e., W.P.(C) Nos.25720 of 2021 and 35870 of 2022. 2. On 14.02.2024, when this writ petition came up for admission, the matter was admitted on file. The learned Standing Counsel for Travancore Devaswom Board took notice for respondents 1 to 4. Notice on admission by special messenger was ordered to respondents 5 to 11. By the order dated 14.02.2024, the learned Standing Counsel was directed to make available for the perusal of this Court the files relating to Ext.P4 order dated 22.01.2024. 3. On 19.02.2024, when this writ petition came up for consideration, after perusing the files relating to Ext.P4 order dated 22.01.2024 this Court passed an interim order directing respondents 1 to 4 to restrain respondents 5 and 10, who are the President and Vice-President of the Temple Advisory Committee of Sree Krishna Swami Temple, Neyyattinkara, in associating with the activities of that Committee, for a period of two weeks. Paragraphs 4 to 12 of that order read thus: “4. The learned Standing Counsel has made available perusal of this Court the files relating to Ext.P4 communication dated 22.01.2024. The learned counsel for the petitioner and the learned counsel for the party respondents were also permitted to peruse the files handed over by the learned Standing Counsel. 5. Paragraphs 4 to 12 of that order read thus: “4. The learned Standing Counsel has made available perusal of this Court the files relating to Ext.P4 communication dated 22.01.2024. The learned counsel for the petitioner and the learned counsel for the party respondents were also permitted to peruse the files handed over by the learned Standing Counsel. 5. Page No. 513 of that file contains a report dated 04.01.2023 of the 4th respondent Assistant Devaswom Commissioner, addressed to the 2nd respondent Devaswom Commissioner. Ext.P4 communication dated 22.01.2024 is available at page No. 617. The office note on page No. 40 contains a note with Sl.Nos.110 and 111, which is stated to have been placed before the Devaswom Commissioner. That office note contains two initials made on 23.01.2024. One initial at page 40 appears to be that made by the person who has written the office notes at Sl.Nos.110 and 111 and another initial, which according to the learned Standing Counsel for Travancore Devaswom Board, is one made by the then Devaswom Commissioner, namely, C.N.Raman, who was the 8th respondent in W.P.(C)No. 43139 of 2023, against whom a writ of quo warranto was issued. The screenshot of the office note at Sl.Nos.110 and 111 is reproduced hereunder: 6. Other than the initial stated to have been made by the then Devaswom Commissioner, the office note does not contain any decision taken by the Devaswom Commissioner on the request made by respondents 5 to 11. The reasons stated in the office note at Sl.Nos.110 or 111 find no place in Ext.P4 communication dated 22.01.2024 addressed to 4th respondent Assistant Devaswom Commissioner. 7. An order passed by the Devaswom Commissioner on the request made by respondents 5 to 11 for re-inducting them into the registered mandalam, so as to enable them to participate in the general body meeting for electing the members of the Temple Advisory Committee of Sree Krishna Swami Temple, can be challenged by them before the appropriate forum, in case their request stands rejected. In case that request stands allowed, any devotee, who is feeling aggrieved by that decision can challenge it before the appropriate forum. To effectively challenge that order before the appropriate forum, the person aggrieved should know the reasoning of the Devaswom Commissioner. 8. In Breen v. Amalgamated Engineering Union, 1971 (1) All. In case that request stands allowed, any devotee, who is feeling aggrieved by that decision can challenge it before the appropriate forum. To effectively challenge that order before the appropriate forum, the person aggrieved should know the reasoning of the Devaswom Commissioner. 8. In Breen v. Amalgamated Engineering Union, 1971 (1) All. E.R. 1148 Lord Denning, M.R. Observed that, the giving of reasons is one of the fundamentals of good administration. In Alexander Machinery (Dudley) Ltd. v. Crabtree, 1974 ICR 120 it was observed that failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision - taker to the controversy in question and the decision or conclusion arrived at. 9. The procedure adopted by the Devaswom Commissioner while taking a decision on the request made by respondents 5 to 11 is per se arbitrary and in clear violation of the principles of natural justice. 10. Having considered the materials on record and the submissions made at the Bar, we deem it appropriate to pass an interim order directing respondents 1 to 4 to restrain respondents 5 and 10, who are the President and Vice President of the Temple Advisory Committee of Sree Krishna Swami Temple, in associating with the activities of the Temple Advisory Committee, for the time being, for a period of two weeks. The counter affidavit on behalf of respondents 1 to 4 and that of the party respondents shall be placed on record within 10 days. 11. It is for the Board to take necessary steps to ensure that the orders passed by the Devaswom Commissioner and other officials are speaking orders. Similarly, the endorsements made on the office note shall contain the designation of the officer concerned. 12. The files are returned to the learned Standing Counsel for Travancore Devaswom Board.” 4. On 02.04.2024, when this matter came up for consideration, the learned counsel for the petitioner made available for the perusal of this Court the festival notice with colour photographs of the members of the Temple Advisory Committee of Sree Krishna Swami Temple, Neyyattinkara. 12. The files are returned to the learned Standing Counsel for Travancore Devaswom Board.” 4. On 02.04.2024, when this matter came up for consideration, the learned counsel for the petitioner made available for the perusal of this Court the festival notice with colour photographs of the members of the Temple Advisory Committee of Sree Krishna Swami Temple, Neyyattinkara. A copy of the notice was handed over to the learned Standing Counsel, who sought time to get instructions as to whether a circular has already been issued by the Commissioner, Travancore Devaswom Board, prohibiting festival notices with the photographs of the members of the Temple Advisory Committee, utilizing the money collected from the devotees. 5. On 09.04.2024, by a detailed order, this Court dismissed I.A. No. 1 of 2024 filed by the petitioner seeking an order to amend this writ petition, as stated in that interlocutory application. Paragraphs 5 to 11 and also the last paragraph of that order read thus: “5. This is an application filed by the petitioner, invoking the provisions under Rule 155 of the Rules of the High Court of Kerala, 1971 seeking an order to amend the writ petition, as stated in this interlocutory application. In the affidavit filed in support of the application, it is stated that due to an inadvertent omission the reliefs sought for in the writ petition would indicate that the challenge is against all the members of the Temple Advisory Committee. During the pendency of this writ petition, Ext.R1(c) order dated 26.03.2024 has been issued by the Board, whereby the respondents [Sic: respondents 5 to 11] have been exonerated and the Vigilance report has been rejected. In the said circumstances, necessary amendment has to be carried out in the writ petition. The relief sought for in the application for amendment reads thus: “For the reasons stated in the accompanying affidavit, it is most humbly prayed that this Honourable Court may be pleased to permit the petitioner to carry out the following amendment in the writ petition: In relief (i), after the words “issue a writ of certiorari or any other appropriate writ, order or direction to call for the records leading to Exts.P4 and P6 and quash the same” add “as against respondents 5 to 11” and further, quash Ext.R1(c).” 6. Heard the learned counsel for the petitioner, the learned Standing Counsel for Travancore Devaswom Board and the respective counsel for party respondents. 7. Rule 155 of the Rules of the High Court of Kerala, 1971 reads thus: “155. New ground or relief not to be raised - No ground shall be relied upon and no relief sought at the hearing except the grounds taken and reliefs sought in the Original Petition and the accompanying affidavit.” 8. 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 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. 9. 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. 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. 10. It is during the pendency of this writ petition that the 1st respondent Travancore Devaswom Board issued Ext.R1(c) order dated 26.03.2024, whereby respondents 5 to 11 have been exonerated and the Vigilance report has been rejected. A copy of that order was placed on record on 01.04.2024, along with the counter affidavit filed by respondents 1 to 4. 11. For incorporating a challenge against the order dated 26.03.2024 of the 1st respondent Travancore Devaswom Board [Ext.R1(c)], the petitioner has to file an application to amend the statement of facts and grounds of the writ petition appropriately, taking note of the law laid down in the decisions referred to supra, after marking the said order as an exhibit in the writ petition, on the side of the petitioner, and seeking appropriate relief against the same. In such circumstances, this interlocutory application, i.e., I.A.No. 1 of 2024 is dismissed without prejudice to the right of the petitioner to file a proper application for amendment, invoking the provisions under Rule 155 of the Rules of the High Court of Kerala, 1971.” 6. Heard the learned counsel for the petitioner, the learned Standing Counsel for Travancore Devaswom Board for respondents 1 to 4 and also the respective counsel for the party respondents. 7. Heard the learned counsel for the petitioner, the learned Standing Counsel for Travancore Devaswom Board for respondents 1 to 4 and also the respective counsel for the party respondents. 7. The learned counsel for the petitioner seeks permission to withdraw this writ petition without prejudice to the right of the petitioner to challenge Ext.R1(c) order dated 26.03.2024 in a fresh writ petition, with proper pleadings and reliefs. 8. Based on the above submission made by the learned counsel for the petitioner, this writ petition is dismissed as withdrawn, leaving open the legal and factual contentions raised by both sides and without prejudice to the aforesaid right of the petitioner.