IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942
WP(C).No.26403 OF 2020(A)
PETITIONER:
SUHARABI
AGED 39 YEARS
W/O. ABDUL MANAF, EDATHADATHIL HOUSE, KALPAKANCHERRY
P. O. TIRUR TALUK, MALAPPURAM DISTRICT.
BY ADV. SRI.C.M.MOHAMMED IQUABAL
RESPONDENTS:
1 THE DEPUTY SUPERINTENDENT OF POLICE
TIRUR, TIRUR P. O., MALAPPURAM DISTRICT,
PIN - 676 101.
2 THE SUB INSPECTOR OF POLICE
KALPAKANCHERRY POLICE STATION,
KALPAKANCHERRY P. O., MALAPPURAM DISTRICT,
PIN - 676 551.
3 MOHAMMED SHAFEEQUE
AGED 26 YEARS
S/O. KUNHUMUHAMMED, MURICKANKATTIL HOUSE,
KALPAKANCHERRY P. O., TIRUR TALUK,
MALAPPURAM DISTRICT, PIN - 676 551.
4 HANEEFA
S/O. MUHAMMED, MURICKANKATTIL HOUSE,
KALPAKANCHERRY P. O., TIRUR TALUK,
MALAPPURAM DISTRICT, PIN - 676 551.
5 SIDHIQUE
S/O. MUHAMMED, MURICKANKATTIL HOUSE,
KALPAKANCHERRY P. O., TIRUR TALUK,
MALAPPURAM DISTRICT, PIN - 676 551.
R3-R5 BY ADV. SMT.DEEPA NARAYANAN
R3-R5 BY ADV. SMT.ASHA MARIAM MATHEWS
R1 & R2 BY SMT K.AMMINIKUTTY, SR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.26403 OF 2020(A)
2
JUDGMENT
The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 and 2 to provide necessary and adequate protection to the life and property of the petitioner from respondents 3 to 5 and their family members and henchmen. The petitioner has also sought for a writ of mandamus commanding the 2 nd respondent to take appropriate action on Ext.P3 complaint filed by the petitioner within a time limit to be stipulated by this Court.
2. The relief sought for in this writ petition is based on Ext.P3 representation dated 21.11.2020 of the petitioner before the 1st respondent Deputy Superintendent of Police, Tirur. The said representation reads thus:
"The petitioner is the owner and in possession of 4.25 Ares of land in Survey No.332/5-20 of Kalpakancherry Village.
She purchased the same from Murickankattu Mammadkutty @ Mohammedkutty by virtue of Document No.976/2020 of SRO Kalpakancherry. The respondents are his family members. They are in inimical terms since he has not sold the property to his own family members. There is a road to this property. To take revenge against the assignor, the respondents are creating life threat to the petitioner while using the road. Even though I approached the WP(C).No.26403 OF 2020(A) 3 Kalpakancherry Police in this regard, no positive results were evolved.
Hence it is most humbly prayed that your good office may be pleased to direct the Kalpakancherry Police to provide necessary protection to the life and property of the petitioner from the atrocities of the respondents and their men."
3. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1 and 2 and also the learned counsel for respondents 3 to 5.
4. 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 WP(C).No.26403 OF 2020(A) 4 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.
5. 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 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 WP(C).No.26403 OF 2020(A) 5 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, 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.
6. 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 WP(C).No.26403 OF 2020(A) 6 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 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.
7. In the instant case, the petitioner filed Ext.P3 WP(C).No.26403 OF 2020(A) 7 representation dated 21.11.2020 before the 1 st respondent Deputy Superintendent of Police, Tirur with a request to direct the 2 nd respondent Sub Inspector of Police, Kalpakancherry Police Station to provide necessary protection to the life and property of the petitioner from the atrocities of respondents 3 to 5 and their men. The only allegation in Ext.P3 representation is that the respondents are in inimical terms with the assignor of the property owned by the petitioner and in order to take revenge against him, they are creating life threat to the petitioner, while using the road. Ext.P3 representation contains no specific allegations against respondents 3 to 5. Not even a single instance of threat to the life of the petitioner, from the side of respondents 3 to 5, is pointed out in Ext.P3.
8. In Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145] a Three-Judge Bench of the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties WP(C).No.26403 OF 2020(A) 8 prescribed by statute and to keep subordinate tribunals and officers exercising public functions with in the limit of their jurisdiction.
9. In State of U.P. v. Harish Chandra [(1996) 9 SCC 309] the Apex Court held that, under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law.
10. In Oriental Bank of Commerce v. Sunder Lal Jain [(2008) 2 SCC 280] the Apex Court held that, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed the principles on which a writ of mandamus can be issued have been stated as under in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. that, mandamus WP(C).No.26403 OF 2020(A) 9 is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice.
11. In Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259] the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass orders or directions which are contrary to what has been injected by law.
12. In order to seek police protection under Article 226 of the Constitution of India, the petitioner in a writ petition filed under Article 226 of the Constitution of India has to first approach the concerned Station House Officer with a proper complaint against those who are causing threat to the life and/or the property of the petitioner. Since a writ of mandamus can be granted only in a case where there is a failure on the part of that officer concerned to discharge the statutory obligation, in the complaint filed before the WP(C).No.26403 OF 2020(A) 10 concerned Station House Officer, which is foundation upon which a writ petition seeking police protection has been built, the petitioner has to disclose his legal right to compel performance of a statutory duty cast upon that authority. The said complaint should contain necessary pleadings. In case there is any failure on the part of the officer concerned in discharging the statutory duty or obligation, the petitioner can approach this Court in a writ petition filed under Article 226 of the Constitution of India, seeking appropriate reliefs, in which the State of Kerala, the officer concerned and also those who are causing threat to the life and/or the property of the petitioner, as alleged in the said complaint, are to be arrayed as respondents.
13. In the instant case, in the absence of necessary pleadings in Ext.P3 complaint, it cannot be said that there is any failure on the part of respondents 1 and 2 to discharge their statutory obligations.
In such circumstances, the petitioner is not entitled for the reliefs sought for in this writ petition. In the result, the writ petition is dismissed for the aforesaid reason, however, without prejudice to the right of the petitioner to move a proper representation before WP(C).No.26403 OF 2020(A) 11 the concerned Station House Officer, seeking police protection, in case there is any threat to her life and property from respondents 3 to 5 and their men, and to move a fresh writ petition before this Court, in case there is inaction on the part of the concerned Station House Officer in rendering necessary police protection.
Sd/-
ANIL K.NARENDRAN
jv JUDGE
WP(C).No.26403 OF 2020(A)
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF DOCUMENT NO.976/1/2020
OF SRO KALPAKANCHERRY DATED 08.06.2020.
EXHIBIT P2 THE TRUE COPY OF THE LAND TAX RECEIPT
ISSUED BY KALPAKANCHERRY VILLAGE OFFICE
DATED 01.07.2020.
EXHIBIT P3 THE TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONER BEFORE THE
1ST RESPONDENT DATED 21.11.2020.