Kunhiraman v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943** **WP(C).No.7191 OF 2021(Y)** ## **PETITIONER:** **KUNHIRAMAN AGED 62 YEARS S/O. RAVUNNI MOOTHAN, THEKKENANGADI, MEKKOTTIL HOUSE, MANNAMPATTA, KULAKKATTUKURUSSI,(P.O), SREEKRISHNAPURAM, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN – 678 633.** **BY ADV. SRI.K.RAVI (PARIYARATH)** ## **RESPONDENTS:** **1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – 695 001. 2 THE DISTRICT POLICE CHIEF, OFFICE OF THE DISTRICT POLICE CHIEF, PUDUPALLI THERUVU, PALAKKAD, PIN – 678 001. 3 THE SUB INSPECTOR OF POLICE, SREEKRISHNAPURAM POLICE STATION, SH 53,PALAKKAD ROAD, THIRUVAZHIYODE, OTTAPALAM, PALAKKAD DISTRICT – 679 514.** W.P(C).No.7191 OF 2021 2 **4 PADMINI, KALLAMPARAMBIL, KULAKKATTUKURUSSI,(P.O), SREEKRISHNAPURAM, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN – 678 633.** **SRI. SUNIL NATH N.B - GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C).No.7191 OF 2021 3 ## **JUDGMENT** The petitioner along with his sisters owns an extent of 07.11 Ares of land comprised in Survey Nos.25/11A 4pt, 25/11A 5pt and 25/11A 3pt of Sreekrishnapuram I Village in Ottapalam Taluk, which was subject matter of Original Application No.114/1980 on the file of the Forest Tribunal, Palakkad, wherein it was declared that the said property is not vested in the Government. Resultantly, the custodian was directed to restore the property. Alleging that the said order of restoration did not take place, the petitioner along with his sisters approached this Court by filing O.P No.3344 of 1995 and that writ petition was disposed of by Ext.P2 order dated 18.09.2003 ordering restoration of the property within a time frame. 2. Going by the averments in this writ petition, thereafter that property got restored and the petitioner along with his sisters is in enjoyment of that property, which was developed into a rubber plantation. While so, on 03.03.2021 the 4[th] respondent threatened the workers employed by the petitioner from performing their work in the property and W.P(C).No.7191 OF 2021 4 shouted that she will obstruct the work. The petitioner submitted Ext.P5 complaint before the 3[rd] respondent Sub Inspector of Police on 03.03.2021 and thereafter moved this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding the respondents 1 to 3 to grant effective and adequate police protection to the petitioner, for the peaceful enjoyment of the property situated in Survey Nos.25/11A 4pt, 25/11A 5pt and 25/11A 3pt of Sreekrishnapuram-I Village, Ottappalam Taluk, Palakkad District, from the threat posed at the instance of the 4[th] respondent. 3. On 19.03.2021, when this writ petition came up for admission, after arguing for sometime the learned counsel for the petitioner sought adjournment and accordingly the matter is listed today for consideration. 4. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for respondents 1 to 3. 5. The learned counsel for the petitioner would submit that the 4[th] respondent, who has absolutely no right W.P(C).No.7191 OF 2021 5 whatsoever over the property in question, has obstructed the workers employed by the petitioner when they attempted to cut tree standing in that property. The petitioner submitted Ext.P5 complaint dated 03.03.2021 before the 3[rd] respondent Sub Inspector of Police seeking police protection. 6. The learned Government Pleader, on instructions from the 3[rd] respondent would submit that there is no law and order issues in the locality and the petitioner and the 4[th] respondent were summoned to the Police Station and instructed them not to take law into their own hands. 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 further W.P(C).No.7191 OF 2021 6 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. 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 W.P(C).No.7191 OF 2021 7 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. 9. In **St.George Tabore Church and others v. State of Kerala and others [2021 (1) KHC SN 1]** this Court held that, 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 W.P(C).No.7191 OF 2021 8 failure on the part of that officer concerned to discharge the statutory obligation, in the complaint filed before the 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. 10. In the instant case, Ext.P5 complaint made by the petitioner does not contain any specific averment as to the threat/obstruction from the side of the 4[th] respondent. Even the date on which the 4[th] respondent alleged to have caused obstruction or threat to the petitioner and his workers is not W.P(C).No.7191 OF 2021 9 disclosed in Ext.P5 complaint made by the petitioner before the 3[rd] respondent Sub Inspector of Police, Sreekrishnapuram Police Station. The petitioner has also not made out a case of threat to law and order in the locality, at the instance of the 4[th] respondent. In the absence of any such pleadings, the petitioner is not entitled for the reliefs sought for in this writ petition. In the result, the writ petition fails and the same is accordingly dismissed; however, without prejudice to the right of the petitioner to approach the competent Civil Court seeking appropriate reliefs against the 4[th] respondent. No order as to cost. Sd/- **ANIL K. NARENDRAN JUDGE** SPR W.P(C).No.7191 OF 2021 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE ORDER PASSED BY THE HON'BLE FOREST TRIBUNAL PALAKKAD, IN O.A.NO.114/1980, DATED 15.04.1982.** **EXHIBIT P2** **TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN O.P.NO.3344/1995, DATED 18.09.2003.** **EXHIBIT P3** **TRUE COPY OF THE CERTIFICATE ISSUED TO THE PETITIONER AND TO HIS SISTERS AT THE INSTANCE OF THE DIVISIONAL FOREST OFFICER, PALAKKAD, DATED 04.12.2004.** **EXHIBIT P4** **TRUE COPY OF THE TAX RECEIPT REMITTANCE OF TAX AT THE INSTANCE OF THE PETITIONER DATED 29.12.2020.** **EXHIBIT P5 TRUE COPY OF THE COMPLAINT PREFERRED BY THE PETITIONER BEFORE THE 3RD RESPONDENT,AGAINST THE 4TH RESPONDENT, DATED 03.03.2021.** **RESPONDENT'S/S EXHIBITS: NIL.**