Ponnamma Balakrishnan v. Revenue Divisional Officer, Alappuzha

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 12TH DAY OF FEBRUARY 2021 / 23RD MAGHA,1942** **WP(C).No.1408 OF 2021(A)** ## **PETITIONER/S:** **PONNAMMA BALAKRISHNAN** **W/O. LATE BALAKRISHNAN NAIR, AGED 64 YEARS, THOMADAM, KANNADY P.O, KANNADY PADINJAREMURI, PULINKUNNU VILLAGE, KUTTANADU TALUK, ALAPPUZHA-688 504** **BY ADVS. SRI.K.S.HARIHARAPUTHRAN SMT.BHANU THILAK** **RESPONDENT/S:** **THE REVENUE DIVISIONAL OFFICER, ALAPPUZHA, THATHAMPALLY, ALAPPUZHA-688 013** **OTHER PRESENT:** **SMT A.C VIDHYA -GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- W.P.(C). No. 1408 of 2021 ## **JUDGMENT** The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondent Revenue Divisional Officer to consider and dispose of Ext.P1 P.V.Appeal No.8004 of 2019 [sic: P.V.Appeal Nos.8004 of 2020] dated 28.04.2020 filed by the petitioner along with one Santhamma, within a time frame to be fixed by this Court. 2. On 19.01.2021, when this writ petition came up for admission, the learned counsel for the petitioner sought time to place on record a copy of the order, which is the subject matter of challenge in Ext.P1 appeal. 3. Along with I.A. No.1 of 2021, the petitioner has placed on record Ext.P2 order dated 06.06.2018 of the Tahsildar, Taluk Office, Kuttanad. 4. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondent. 5. In **Bharat Singh v. State of Haryana, [(1988) 5** -3- W.P.(C). No. 1408 of 2021 **SCC 434]** 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 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. 6. Ext.P1 appeal filed by the petitioner along with Smt.Santhamma is one dated 28.04.2020, filed under Rule 16 [sic Rule 18] of the Transfer of Registry Rules, 1966, -4- W.P.(C). No. 1408 of 2021 challenging Ext.P2 order dated 06.06.2018 of the Tahsildar, Taluk Office, Kuttanad. A copy of that order was not produced along with the writ petition and the date of the impugned order is not mentioned either in the writ petition or in Ext.P1 appeal filed before the respondent Revenue Divisional Officer. 7. Ext.P2 order of the Tahsildar is appealable before the respondent Revenue Divisional Officer, under clause (i) of Rule 18 of the Transfer of Registry Rules, within 30 days from the date of receipt of the order. In computing the period of 30 days, the time taken for obtaining a copy of the order shall be excluded. As per clause (ii) of Rule 18 the appellate authority may admit an appeal after expiry of the prescribed period of 30 days, if he is satisfied that the appellant has good and sufficient cause for not preferring the appeal within that period. In such cases, the authority who admits the appeal shall record the fact of having condone the delay. As per clause (iii) of Rule 18 no appeal shall be admitted unless accompanied by a original of a certified copy of the order appealed against. No officer shall decide a case in appeal -5- W.P.(C). No. 1408 of 2021 without giving notice to the parties who are affected by the decision and without giving them an opportunity of being heard. 8. As can be seen from Ext.P2 order dated 06.06.2018, a copy of that order was communicated to Smt.Santhamma and also to the petitioner, Sri.Madhavan @ Madhavan Nair, Smt.Sreeja Anil, Smt.Sreedevi V.Nair, Smt.Jagadamma and Smt.Vijayamma. In view of the provisions under Rule 18 of the Transfer of Registry Rules, Ext.P1 appeal, in case it is accompanied by the original of a certified copy of Ext.P2 order, can be entertained by the respondent Revenue Divisional Officer only if it is supported by an application for condonation of delay stating good and sufficient cause for not preferring the appeal within the time limit prescribed in clause (ii) of Rule 18. In addition to this the affected parties have to be arrayed as respondents in that appeal. 9. In such circumstances, this writ petition is disposed of by directing the respondent Revenue Divisional Officer to -6- W.P.(C). No. 1408 of 2021 consider as to whether Ext.P1 appeal filed by the petitioner satisfy the statutory requirements of clauses (i) to (iii) of Rule 18 of the Transfer of Registry Rules, 1966, with notice to the petitioner and Smt.Santhamma, and after affording them an opportunity of being heard. 10. The conduct of the petitioner in filing this writ petition even without pleading the basic facts, has to be deprecated in the strongest words and I do so. 11. In **State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that 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. 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 the orders or directions which are contrary to what has been injected by law. -7- W.P.(C). No. 1408 of 2021 12. Therefore, in terms of the direction contained in this judgment, the respondent shall take an appropriate decision in the matter, strictly in accordance with law, taking note of the relevant statutory provisions and also the law on the point. No order as to costs. **Sd/ANIL K.NARENDRAN JUDGE** das -8- W.P.(C). No. 1408 of 2021 ## **APPENDIX** **PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE P.V. APPEAL NO. 804/19 DATED 28.04.2020 FILED BEFORE THE RESPONDENT. EXHIBIT P2 TRUE COPY OF THE ORDER OF TAHASILDAR, KUTTANAD DATED 06/06/2018 HAVING NO.A4-3259/14 ISSUED BY THE TAHASILDAR, KUTTANAD.**