M.M. Lakshmi Kutty Amma v. Keshava Panicker and others

## **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 6[th] 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 6[th] 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 6[th] 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) 3 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) 4 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) 5 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) 6 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) 7 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) 8 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**