M.M.Lakshmi Kutty Amma vs Keshava Panicker
2021 Latest Caselaw 6382 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

   TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942

                       WP(C).No.4655 OF 2021(F)


PETITIONER:

               M.M.LAKSHMI KUTTY AMMA
               AGED 67 YEARS
               D/O. LATE MADHAVI KUTTY VARASYAR,
               MAZHUVANCHERRY VARIYAM, KUMARANKARY P. O., VELIYANADU
               VILLAGE, ALAPPUZHA DISTRICT,
               PIN - 686 103.

               BY ADV. SRI.M.P.MADHAVANKUTTY

RESPONDENTS:

      1        KESHAVA PANICKER
               AGED 78 YEARS
               PADMA NIVAS (CHAITHRAM), KUMARANKARY P. O.,
               VELIYANADU VILLAGE, ALAPPUZHA DISTRICT,
               PIN - 686 103.

      2        PADMAKUMAR, AGED 50 YEARS
               S/O. KESHAVA PANICKER, PADMA NIVAS (CHAITHRAM),
               KUMARANKARY P. O., VELIYANADU VILLAGE,
               ALAPPUZHA DISTRICT, PIN - 686 103.

      3        AJITH KUMAR, AGED 47 YEARS
               S/O. KESHAVA PANICKER, PADMA NIVAS (CHAITHRAM),
               KUMARANKARY P. O., VELIYANADU VILLAGE,
               ALAPPUZHA DISTRICT, PIN - 686 103.

      4        VILLAGE OFFICER
               VELIYANADU VILLAGE, ALAPPUZHA DISTRICT,
               PIN - 689 590.

      5        TAHASILDAR
               KUTTANADU TALUK, ALAPPUZHA DISTRICT, PIN - 688503.

      6        DISTRICT COLLECTOR
               ALAPPUZHA DISTRICT, PIN - 688 001.


             R4 TO R6 BY SMT K.AMMINIKUTTY-SR GOVERNMENT PLEADER
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.4655 OF 2021(F)

                                              2


                                   JUDGMENT

The petitioner has filed this writ petition under Article 226 of

the Constitution of India, seeking a writ of mandamus commanding

the 6th respondent District Collector to initiate action against

respondents 1 to 3 for filling up and encroaching the property

situated in Sy.No.378/4 in Veliyanandu Village, under the Kerala

Escheats and Forfeitures Act, 1964; a writ of mandamus

commanding the 6th respondent to initiate action against

respondents 1 to 3 under Section 13 of the Kerala Conservation of

Paddy Land and Wetland Act, 2008 and to restore the edathodu to

its earlier position; a writ of mandamus commanding the 6 th

respondent to initiate action against respondents 1 to 3 under the

Kerala Land Conservancy Act, 1957 for encroaching over the

puramboke kulam and claiming right over the same; and a writ of

mandamus commanding the 6th respondent to pass appropriate

orders on Ext.P11 representation within a time frame.

2. Paragraph 4 of the writ petition reads thus:

"4. It is respectfully submitted that, an extent of 10 cents in Survey No.378/4 is lying in the north south direction on the western boundary of the petitioner's property. The above extent of land belongs to one Abraham, WP(C).No.4655 OF 2021(F)

S/o.Punnoos, Chirayil House, Vazhappally West Village, Changanacherry Taluk. As per the Thandapper Register, the above property is lying in Thandapper No.1605/93 in the name of the above named Abraham. He has effected mutation with respect to the above extent and another extent of 55 cents as P.V.No.2/93 dated 06.05.1993 of Veliyanadu Village. The whole extent of 65 cents including the 10 cents lying on the western side of the petitioner's property is described as Nilam in the above Thandapper Register. The Thandapper details of the above property situated in Survey No.378/4 is produced herewith and marked for identification Ext.P2."

3. In this writ petition, the petitioner is mainly relying on

Section 11A of the Kerala Escheats and Forfeitures Act, 1964,

which deals with abandoned property. As per Section 11A, any

immovable property abandoned by the rightful owner thereof shall

be abandoned property and shall belong to the Government. As

already noticed hereinbefore, in paragraph 4 of the writ petition,

the petitioner has furnished the address of the owner of that

property; however he is not made a party to this proceedings.

4. Rule 148 of Rules of the High of Kerala, 1971 reads

thus:

"148. Addition of parties.-- All persons directly affected shall be made parties to the petition. Where such WP(C).No.4655 OF 2021(F)

persons are numerous, one or more of them may with the permission of the court on application made of the purpose be impleaded on behalf of or for the benefit of all persons so affected; but notice of the Original Petition shall, on admission, be given to all such persons either by personal service or by public advertisement as the Court in each case may direct."

5. Considering the nature of reliefs sought for, the

aforesaid Abraham is a necessary party to this writ petition. In

such circumstances, this writ petition cannot be entertained,

without the said person in the party array.

6. The learned counsel for the petitioner would submit that

the petitioner shall file an application for impleadment.

7. 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 WP(C).No.4655 OF 2021(F)

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.

8. 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 WP(C).No.4655 OF 2021(F)

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 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.

WP(C).No.4655 OF 2021(F)

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. 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 WP(C).No.4655 OF 2021(F)

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. The requirement of proper pleadings in a writ petition

filed under Article 226 of the Constitution of India will not be

satisfied by the mere filing of an application for impleadment,

without appropriate amendment in the statement of facts, grounds,

etc.

11. The learned counsel for the petitioner seeks permission

to withdraw this writ petition, without prejudice to the right of the

petitioner to file a fresh writ petition with appropriate pleadings and

the aforesaid Abraham in the party array.

Based on the above submission made by the learned counsel

for the petitioner, this writ petition is dismissed as withdrawn,

without prejudice to the aforesaid right of the petitioner.

Sd/-

                                        ANIL K.NARENDRAN
JV                                             JUDGE