A spouse cannot file a writ petition on behalf of the other spouse without a duly executed power of attorney.

JUDGMENT :

C.S. DIAS, J.

1. The writ petitioner’s husband is the co-owner of 12.48 Ares of land comprised in Survey No.309 in Tanur Village, Tirur Taluk. The petitioner is managing the property as her husband is employed abroad. The property is ‘dry land’. However, the respondents have erroneously classified the land as 'wet land' and included it in the data bank prepared under the Kerala Conservation of Paddy Land and Wetland Act, 2008 and the Rules framed thereunder (‘Act’ and ‘Rules' for brevity). To rectify the misclassification of the land, the petitioner’s husband and the other co-owners had submitted Ext.P3 application in Form 5 under Rule 4 (4d) of the Rules before the 1^st respondent. As there was an inordinate delay in considering the application, the petitioner’s husband filed W.P.(C) No.24574/2024 before this Court. By Ext.P4 judgment, the 1^st respondent was directed to consider the application within one month. Nevertheless, the 1^st respondent rejected the application by Ext.P7 order, which has led to the filing of the present writ petition.

2. When the writ petition was taken up for hearing, this Court questioned the petitioner’s locus- standi to file the writ petition, since she is neither the owner of the property nor the power of attorney holder.

3. I have heard Sri. C.M. Mohammed Iquabal, the learned Counsel for the petitioner and Smt. Deepa V., the learned Government Pleader.

4. The learned counsel for the petitioner argued that, by virtue of Section 120 of the Evidence Act, 1872, the petitioner, being the wife of a co-owner of the property, is competent to represent her husband’s estate and file the writ petition even without a power of attorney. The learned Counsel placed reliance on Order III Rule 1 of the Code of Civil Procedure (‘CPC’ in short) and the decisions of this Court in Narayanan Nair v. John Kurien, 1998 (1) KLT 673 and Ashadevi N.P. and Others v. State of Kerala and Others, 2020 (4) KHC 280 to fortify his submissions.

5. The learned Government Pleader opposed the above contention and submitted that the petitioner cannot file the writ petition without a power of attorney executed in her favour, for the action is in personam and the right to sue rests solely with the landowners.

6. The facts that the petitioner is not the owner of the property in question, her husband has not executed a power of attorney in her favour, and it was her husband who filed the earlier writ petition are not disputed.

7. The reliance placed on Section 120 of the Evidence Act, 1872, is wholly misconceived, and it reads as follows:

“120. Parties to civil suit and their wives or husbands―Husband or wife of person under criminal trial.

In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness”.

8. The above provision merely enables a spouse to be a competent witness in a proceeding involving the other spouse. It does not clothe a non-party spouse with the right to institute proceedings in substitution of the party spouse.

9. Chapter XI of the Rules of the High Court of Kerala, 1971, lays down the procedure for presentation of writ petitions before this Court. Rule 145 unequivocally mandates that the writ petitions filed under Articles 226, 227 and 228 of the Constitution have to be filed by the petitioner or his duly authorised Advocate. Rule 19 prescribes the form and manner in which a vakalath has to be attested to appoint an Advocate. In addition to the above, writ petitions have to be accompanied by an affidavit sworn to by the party. There is n