Suharabi vs The Deputy Superintendent Of ...
2021 Latest Caselaw 115 Ker

               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)

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)

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)

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)

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)

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)

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)

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)

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)

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)






                                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.