Wrong Practices Cannot Change Law Of Pleadings: Gujarat High Court On Facts Being Mentioned In Grounds Of Writ Petition

While hearing a matter wherein an alleged “agricultural land” had been declared as “excess land” by the authorities, the Gujarat High Court on Wednesday (August 7) orally remarked that the “law of pleadings” cannot be changed by any “wrong practices”.

The high court made the observations after noting that certain factual averments formed part of the grounds mentioned in writ petition which was filed by the appellants before the single judge bench.

A division bench of Chief Justice Sunita Agarwal and Justice Pranav Trivedi were hearing an appeal against a February 20 order of a single judge bench which had dismissed the appellants' (petitioners before the single judge) writ petition on the ground of delay in approaching the court. Before the single judge bench, the appellants had challenged a 1986 order passed by the competent authority & Deputy Collector, Ahmedabad under the provisions of Urban Land (Ceiling and Regulation) Act, 1976 whereby 15487 sq. metres of land in village Charodi had been declared as excess land.

The high court on Wednesday said that the appellants– who were earlier contesting the case before the concerned forums– had not mentioned in the writ petition before the single judge that on the day when Urban Land (Ceiling and Regulation) Repeal Act, 1999 Act into force, one the day of repeal they were in possession of the land. 

“The only issue for application of the 1999 Act is that actual physical possession is not taken…In your entire writ petition you don't say so…And why are you coming now in 2022, what happened? What gave you cause of action to approach this court in 2022?,” the court orally said to the appellant's counsel.

In response to this when the appellant's counsel pointed to the writ petition filed before the single judge bench, the high court orally said “No this is the ground (in original writ petition). Ground starts from paragraph 3…Whatever averments you are making in the grounds they are on legal advice. Factual statements are only in the body of the writ petition. We want you to show the statements in the body of the writ petition”.

At this stage the counsel said, “Your lordships are right but here the practice is that grounds are taken…”.

To this the high court orally remarked,

“No no no. Practice is nowhere changed. Law of pleading is not changed because of wrong practices. Then practices have to be changed, not the law. You cannot plead any statements in grounds, on your personal knowledge”.

The high court further said that the appellants had not even stated that the State Authorities had entered the land to dispossess them and even that averment was “missing” in the petition (which was before the single judge bench).

At this point the appellants counsel "agreed" with the court's observation . He thereafter requested the court to permit the appellants to place the factual averments in the body of the petition. He submitted an “agriculturist is losing his right” and comes from the “most downtrodden community” and urged to the court to take a "generous and charitable approach". 

To this the court orally said, “No sorry that you should have taken before the learned single judge that boat is now sailed. We cannot help, we wanted to help but we cannot”.

The counsel however said that there had been a “little error in drafting” but “nonetheless there was an averment but not in petition…in body of petition by way of grounds”.

After some argument, the counsel said that he be given one chance, and he shall present judgments to address the issues raised in the matter including on the point that a “good case on merits should not be defeated by the ground of delay”. After some hearing the high court listed the matter on August 12.

Before parting the counsel said that “Very honestly it has to be in the body of the petition. After averment you can develop the ground”.

Before parting, the high court said, “We would also like to write a judgment where we can state this so that it may be there for everyone in future that this is what we are facing almost every day. Drafting has been given a toss. Sometimes, it is intentional, sometimes it is because of lack of knowledge or experience. But the situation is that in these days when you intercept a counsel, a young Counsel specifically, on drafting, he will retaliate back. He will never try to understand what he has done and this is about the fate of the clients. He is playing with the fate of the clients who has put faith in him and then he will retaliate back to the court the same way that you are saying the grounds should be considered as the statement made in the body of the Writ Petition”.

When the counsel said that he had not retaliated but submitted, the high court further said that while the appellants' counsel had submitted, however the "young counsels, they retaliate because of the generational change". 

The court further said, "They don't even understand or they don't even try to understand that…what importance should be given to drafting of the Writ Petition. In the computer age, you cannot cut, copy and paste everywhere”.

Background:

Before the single judge the appellants had sought multiple reliefs, including quashing of proceedings and notifications issued under the ceiling act from 1986 and 1987. Additionally the appellant had then sought quashing and setting aside a 1999 communication issued by the Deputy Collector, Ahmedabad whereby, the appellants appeal (filed before the concerned appellate authority) was “returned” in light of the Urban Land (Ceiling and Regulation) Repeal Act, 1999. The appellants had finally sought a declaration that the possession of the land in question, is not taken by the respondent authorities.

The single judge bench while dismissing the petition observed, “The petitioners have slept over their right for almost three decades and after waking up from the slumber, in the year 2022, have applied under the Right to Information Act, 2005, got the papers and filed a writ petition; however, it is not stated as to what steps were taken after the year of 1986 and thereafter, from the year 1999”.

The high court had said that the only explanation found in the plea was in one at max two paragraphs and that it suffered from “sheer vagueness”.

The court said that it was well-settled that if a petitioner approaches seeking justice, it should not only state the facts correctly, but should also provide the details with precision, which would include the explanation for delay in approaching the court.

“The petition, is totally silent on the said aspect and what has been stated, it cannot be construed to be an explanation, so as to exercise the extra- ordinary jurisdiction of this Court under Article 226 of the Constitution of India,” the single judge bench had said.

Case title: LH OF LATE DHARMABHAI MADHABHAI & ORS. v/s STATE OF GUJARAT & ORS.