Kerala High Court
Bharat Petroleum Corporation Ltd vs Kunji Mohammed on 6 April, 2022
Author: S.Manikumar
Bench: S.Manikumar, Murali Purushothaman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
WEDNESDAY, THE 6TH DAY OF APRIL 2022 / 16TH CHAITHRA, 1944
WA NO. 451 OF 2022
AGAINST THE JUDGMENT IN WP(C) 12035/2021 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 1 & 2 IN THE WPC:
1 BHARAT PETROLEUM CORPORATION LTD.
A COMPANY INCORPORATED UNDER COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE AT BHARAT BHAVAN, NO. 1 &
2, 4 & 6, CURRIMBHOY ROAD, BALLARD ESTATE,
MUMBAI-400 001, REPRESENTED BY ITS CHAIRMAN.
2 THE CHIEF GENERAL MANAGER (PROJECTS),
THE BHARAT PETROLEUM CORPORATION LTD.,
KOCHI REFINERY COMPLEX, AMBALAMUGAL, COCHIN-682 302.
BY ADVS.
M.GOPIKRISHNAN NAMBIAR
K.JOHN MATHAI
JOSON MANAVALAN
KURYAN THOMAS
PAULOSE C. ABRAHAM
RAJA KANNAN
SRI. MOHAMMED RAIZ
RESPONDENTS/PETITIONERS 1 TO 3 & RESPONDENTS 3 TO 8:
1 KUNJI MOHAMMED
AGED 38 YEARS,
S/O.HYDROSE HAJI, PADINJARETHIL HOUSE, PALLOOR P.O.,
DESAMANGALAM, THRISSUR DISTRICT, PIN-679 532,
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MR.SHABEER,
AGED 38 YEARS, S/O.HAMSA, MANALI PARAMBIL HOUSE,
VARODE P.O., OTTAPALAM, PALAKKAD-679 102.
2 ABOOBACKER,
S/O. SAIDALIKUTTY, MANALI PARAMBIL HOUSE,
THOTTAKARA P.O., OTTAPALAM, PALAKKAD-679 102,
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MR.SHABEER,
AGED 38 YEARS, S/O.HAMSA, MANALI PARAMBIL HOUSE,
VARODE P.O., OTTAPALAM, PALAKKAD-679 102.
W.A.No.451 of 2022
2
3 MAYAROOF,
S/O. PULICKAL KUNHI MOOSA, HIRA MANZIL,
CHAMPAD P.O., KANNUR-670 694, REPRESENTED BY HIS
POWER OF ATTORNEY HOLDER MR.SHABEER, AGED 38
YEARS, S/O.HAMSA, MANALI PARAMBIL HOUSE, VARODE
P.O., OTTAPALAM, PALAKKAD-679 102.
4 C.A.ABRAHAM,
CHEMMERIKAT HOUSE, MAYOORAM, SHORANUR P.O.,
SHORANUR, PALAKKAD, PIN-679 121.
5 THE SECRETARY,
OTTAPALAM MUNICIPALITY, OTTAPALAM,
PALAKKAD, PIN-679 102.
6 PETROLEUM AND EXPLOSIVES SAFETY ORGANIZATION
(PESO),
A BLOCK, CGO COMPLEX, 5TH FLOOR, SEMINARY HILLS,
NAGPUR, MAHARASHTRA, PIN-440 006, REPRESENTED BY
THE CHIEF CONTROLLER OF EXPLOSIVES.
7 THE DEPUTY CONTROLLER OF EXPLOSIVES,
PETROLEUM AND EXPLOSIVES SAFETY ORGANIZATION
(PESO), KENDRIYA BHAVAN, BLOCK C2,
CGO COMPLEX, KAKKANAD, ERNAKULAM-682 037.
8 KERALA STATE POLLUTION CONTROL BOARD,
HEAD OFFICE, PATTOM P.O., THIRUVANANTHAPURAM-695
004, REPRESENTED BY ITS CHAIRMAN.
9 THE ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONTROL BOARD, NEAR
DISTRICT PANCHAYAT OFFICE, PALAKKAD-678 001.
SRI. S.SREEKUMAR(SR) & SRI.MARTIN JOSE FOR R1-R3
SRI. M.JITHESH MENON FOR R4,
SRI. VINOD MADHAVAN, SC FOR R5,
SRI.S.MANU, ASG FOR R6 AND R7,
SRI. T.NAVEEN, SC FOR R8 AND R9
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
06.04.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.No.451 of 2022
3
JUDGMENT
Dated this the 6th day of April, 2022 S.Manikumar, C.J.
Before the writ court, respondent Nos.1 to 3 herein sought for the following reliefs:
"a. declare that the continuance of the petroleum outlet by the respondents 1 and 2 in the property of the petitioner covered under Ext.P3 lease is illegal; b. Issue a writ of mandamus or other writ, order or direction directing respondents 4 to 8 to take steps to close down the petroleum outlet conducted by respondents 1 and 2 in the property covered under Exhibit P3 lease agreement within a time limit to be fixed by this Hon'ble Court;
c. Issue a writ of mandamus or other writ, order or direction directing respondents 5 and 6 to stop the function of the petroleum outlet run by respondents 1 to 3 in the property covered under Ext.P3 lease deed under Rule 153(1) of Petroleum Rules; d. Issue a writ of mandamus or other writ, order or direction directing the respondents 4, 5 and 6 to consider and pass orders on Exts.P6 and P7 respectively within a time limit fixed by this Hon'ble Court;
e. Issue a writ of mandamus or other writ, order or direction directing respondents 7 and 8 to revoke the consent to operate issued to the respondents 1 to 3 W.A.No.451 of 2022 4 to operate the petroleum outlet in the land covered under Ext.P3."
2. After considering the rival submissions and taking note of the judgment of this court in W.P.(C)No.10213 of 2020 dated 22.12.2020, in particular, paragraphs 13 to 15 and the claim of the Corporation to the benefit of section 106 of the Kerala Land Reforms Act, 1963, countered by the respondents herein, placing reliance on K.C. Velayudhan and Others v. N.V. Venkatakrishnan and Others reported in 1993 KHC 197, writ court ordered thus:
"According to me, the point raised in this writ petition is covered by the above judgment. The petitioners have already approached the 6th respondent with a representation, as evident by Ext.P7. There can be a direction to the 6th respondent to consider Ext.P7 representation, in the light of the principles laid down by this Court in W.P.(C) No.10213 of 2020 and connected cases. The 6th respondent will give an opportunity of hearing to the petitioners and other affected parties also before deciding the same. The other civil rights of the petitioners and the respondents are left open. Therefore, this writ petition is disposed of with the following manner:-
i) The 6th respondent is directed to consider Ext.P7 representation, in the light of the principles laid W.A.No.451 of 2022 5 down by this Court in W.P.(C) No.10213 of 2020 and connected cases, as expeditiously as possible, at any rate, within six weeks from the date of receipt of a copy of this judgment.
ii) Before passing final orders, the 6 th respondent will give an opportunity of hearing to the petitioners and other affected parties.
iii) The petitioners will produce a copy of the writ petition along with the certified copy of this judgment before the 6th respondent for compliance.
iv) After passing the orders as directed above, the 6th respondent shall communicate the order to the petitioners and other affected parties immediately thereafter."
3. Being aggrieved, instant writ appeal is filed on the grounds inter alia that the appellants are protected from eviction and entitled to operate the petroleum outlet under section 106 of the Act. Grounds raised are reproduced:
A. The appellants are protected from eviction and are entitled to continue operating the petroleum outlet of the appellants in view of Section 106 of KLR Act. The appellants have taken the subject premises on lease long prior to 20.05.1967 for commercial/industrial purposes. Further, the appellants have constructed permanent structures on the subject premises for carrying out the business of retailing of petroleum products and have also constructed a retail petroleum outlet W.A.No.451 of 2022 6 in the said premises. There has been no express or implied surrender of the said lease by the appellants. Thus, the respondents 1 to 3 cannot be heard to claim that the possession and continued operations by the appellants is illegal. The appellants clearly have a right to use the subject premises for the retail outlet as per Rule 152 of Petroleum Rules, 2002, in view of Section 106 of KLT Act and this fact ought to have been appreciated by the learned Single Judge and the judgments of C Albert Morris case and Hindustan Petroleum case ought to have been differentiated. B. It is humbly submitted that, albeit in the context of Rent Control Act - Pondicheryy Buildings (Lease and Rent Control) Act, 1969, the analysis of whether the tenant therein was a statutory tenant under the said Rent Control Act was expressly undertaken by the Hon'ble Supreme Court in C Albert Morris case. It is only after arriving at a finding that the tenant therein does not have the statutory protection, the Hon'ble Supreme Court went on to hold that the tenant had no right to site for storing petroleum. Though the present case is not one involving a Rent Control Statute, an analogous, or even higher protection from eviction is available to the appellants under Section 106 of KLT Act. The learned Single Judge ought not to have relegated the matter to the 7th respondent without rendering a finding on this issue.
C. Without prejudice to the above, it is humbly submitted that at the least, the impugned judgment ought to have expressly directed PESO to consider the aspect of whether the W.A.No.451 of 2022 7 appellants are protected from eviction under Section 106 of KLR Act. However, to the detriment of appellants, it was merely observed in the impugned judgment that "the other civil rights of the petitioners and the respondents are left open".
4. Inviting the attention of this court to the rival contentions as regards the benefit of section 106 of the Kerala Land Reforms Act, summarised in paragraph No.6 of the impugned judgment, Mr.Mohammed Raiz S., learned counsel for the appellants submitted that there is no conclusion on the above and if the Deputy Controller of Explosives, Petroleum and Explosives Safety Organisation, Kakkanad, Ernakulam, respondent No.7, is directed to consider Exhibit P7 representation without reference to the benefit claimed under section 106 of the said Act, appellant would be remediless and therefore, the only modification which the appellant seeks is to direct the above said respondent to consider the said aspect also.
5. Per contra, Mr.S.Sreekumar, learned Senior Counsel appearing for the respondent Nos.1 to 3 submitted that the benefit of section 106 of the Act, if any, applicable to the W.A.No.451 of 2022 8 appellant can be decided only by a civil court and not by the above said authority. In this context, he also relied on the judgment in W.P.(C)No.10213 of 2020 dated 22.12.2020, considered by the learned single Judge. That apart, reliance is also placed on the decision in Indian Oil Corporation Ltd., Kochi v. Joseph Paul reported in 2016 (5) KHC 278, in particular, paragraph No.18. For the above said reasons, he objected to the consideration of the representation with reference to section 106 of the Act.
6. Heard learned counsel for the parties and perused the pleadings and the material on record.
7. As rightly contended by the learned counsel for the appellants, though the writ court has summarised the rival contentions with reference to the claim of benefit under section 106 of the Act, there is no conclusion. For brevity, paragraph No.6 of the impugned judgment is reproduced:
"6. On the other hand, the Standing Counsel appearing for the 1st respondent submitted that the facts in the above judgment is not applicable to the facts of the present case. The counsel submitted that the 1 st respondent is entitled to the benefit of Section 106 of the W.A.No.451 of 2022 9 Kerala Land Reforms Act. On the other hand, the Senior Counsel submitted that the 1st respondent is not entitled to the benefit of Section 106 of the Kerala Land Reforms Act in the light of the principles laid down by this Court in K.C. Velayudhan and others v. N.V. Venkatakrishnan and others [1993 KHC 197]. The counsel appearing for the 4th respondent submitted that, as per the records, the 3rd respondent is not the licensee. But on the other hand, the learned counsel appearing for the 3 rd respondent submitted that the 3rd respondent is the licensee and he produced the documents to support the same in his counter affidavit as Ext.R3(a)."
8. Paragraphs 13 to 15 of the decision relied on by the writ court in W.P.(C)No.10213 of 2020 dated 22.12.2020, are reproduced:
"13. Under Rule 152 of the Petroleum Rules, 2002 a licence is liable to be suspended or cancelled if the licensee ceases to have any right to the site for storing petroleum {see Rule 152(1)(i)}. The rights referred under the rules must be understood as an interest protected under law. The licensing authority is therefore, bound to examine the right of the licensee.
14. Petroleum product is a hazardous substance as referred under the Environment (Protection) Act, 1986. Petroleum is included in the hazardous substance as defined under Section 2(e) of the Environment (Protection) Act. Under the Public Liability Insurance Act, 1991, the statutory provisions cast a liability on the owner who has control over handling hazardous substance. The licensing under the Petroleum Rules have to be viewed very seriously. That is the reason why under Rule 152 it is stated that licence has to be cancelled, if W.A.No.451 of 2022 10 licensee ceases to have any right to site for storing petroleum. The licensing authority is only to examine whether the applicant for licence is having right in praesenti. It is not the look out of the licensing authority to examine the ongoing dispute between the parties. If anyone of the parties want to protect their right or interest, they have to obtain such right from the competent civil court or from such other forum. Licensing authority only need to consider whether the holder of licence is having an interest protected under law in the land or not.
15. The Apex Court, in fact, considered a similar issue in terms of the petroleum rules. In C.Albert Morris v. K.Chandrasekaran and Others [(2006) 1 SCC 228], after referring to rule 153(1) of the Petroleum Rules, 1976, which is similar to Rule 152 of the Petroleum Rules 2002, the Apex Court held that right means a legal right to continue on the land. It is appropriate to refer the relevant portion of the judgment.
In our opinion, any right which the dealer has over his site was the right which he had acquired in terms of the lease. When that lease expired and when the landlord declined to renew the same and also called upon the erstwhile tenant to surrender possession , the erstwhile lessee could no longer assert that he had any right to the site. His continued occupation of something which he had no right to occupy cannot be regarded as a source of a right to the land of which he himself was not in lawful possession. As observed by this Court in the case of M.C. Chockalingam & Ors. Vs. V.Manickavasagam & Ors. (supra), litigious possession cannot be regarded as lawful possession. As rightly pointed out by the Division Bench of the High Court the right referred to in this rule has necessarily to be regarded as right which is in accordance with law and the right to the site must be one which is capable of being regarded as lawful. We have already referred to Bhawanji Lakhamshi & Ors. Vs. Himatlal Jamnadas Devi & Ors. (supra) wherein this Court held that the act of holding over after the expiration of the term does not create a tenancy of any kind. A new tenancy is created only when the landlord assents to the W.A.No.451 of 2022 11 continuance of the erstwhile tenant or the landlord agrees to accept rent for the continued possession of the land by the erstwhile tenant. The contention of Mr. L.N. Rao that the landlord's assent should be inferred from the conduct of the landlord who had filed the suit for ejectment, but did not pursue the same, has no force. This suit was withdrawn with liberty to file a fresh suit on the same cause of action, liberty which the Court has granted. The possession of the site by the erstwhile lessee does not ripen into a lawful possession merely because the landlord did not proceed with the suit for ejectment at that time, but reserved the right to bring such a suit at a later point of time. That cannot amount to an assent on his part to the continued occupation of the landlord under cover of a right asserted by the erstwhile lessee. The words "right to the site" in Rule 153(1)(i)must, therefore, in our opinion, be given their full meaning and the effect that unless the person seeking a licence is in a possession to establish a right to the site, he would not be entitled to hold or have his licence renewed.
We have already rejected the contention of Mr. L.N. Rao that the appellant-tenant is a statutory tenant for the reasons recorded earlier. The lease deed is very clear as to what was leased in. the lease was of vacant land. That is evident from the recitals in the plaint, legal notice, lease deed etc. It is, therefore, not in dispute that the lease of land is not covered by the statute, The Pondicherry Buildings(Lease and Rent Control) Act, 1969 in force extending protection to tenants. 50. We now come to the last contention of Mr.L.N.Rao that the first respondent is not entitled to maintain the writ petition as the proceedings initiated by him before the Collector for cancellation of the no-objection certificate are pending. The said submission cannot be accepted. While granting NOC, the Collector is not concerned about the land and its suitability as a place for storage of petroleum. Rule 144 which deals with the grant of NOC does not contemplate an enquiry into the ownership of the land nor does it require the Collector to enquire into the nature of the right claimed by the person who has applied for NOC. W.A.No.451 of 2022 12 We,therefore, uphold the judgment and final order passed by the Division Bench dated 7-10-2003 in Writ Appeals Nos.1149 and 2140 of 2002 for the reasons given by us in this judgment.
I am of the view that the authority will have to address this issue in the light of C.Albert Morris's case (supra). It was clearly held by the Apex Court that when the lease expired and when the landlord declined to renew the same, the lessee could no longer assert that he had any right to the site. Though the counsel for HPCL tried to distinguish C.Albert Morris's case contending that the licensing authority need not go into the question of title, right and interest and it is for the civil court to decide, I cannot accept this argument for the simple reason that the licensing authority has to be satisfied with subsisting right of the holder of licence. In the absence of any lease or court order, the licensing authority has to decide the matter with available records. The licensing authority cannot postpone its decision merely citing the pendency of dispute before this Court or before any other court. The licensing authority cannot shirk its responsibility under statutory provisions. In such circumstances, I am of the view that by placing reliance on Rule 148(5), the licensing authority is attempting to evade from answering the real issue referable under Rule 152. Therefore, I hold that HPCL cannot claim the benefit of deemed licence. I declare so. Consequently, a direction is issued to the licensing authority, the second respondent in W.P. (C).No.20574/2020, to take a decision on renewal application after adverting to the law as above and hearing HPCL and N.Krishnan or his authorised representative. Till such a decision is taken, HPCL will have the benefit of Rule 148(5) of the Petroleum Rules."
9. A Division Bench of this court in Indian Oil Corporation Ltd., Kochi v. Joseph Paul (supra), after extracting section 106 of the Act, at paragraphs 15 to 19, held thus:
W.A.No.451 of 202213
"15. In the decision reported in Sulaikha Beevi v. Mathew, 2001 KHC 109: 2001 (1) KLT 360: 2001 (1) KLJ 221:
AIR 2001 Ker. 177, it was held that an implied surrender can be inferred from the conduct of parties. Further in the same decision it has been held, if it is found that it is on the basis of a new entrustment that a person is holding the property and there is no continuation of an earlier lease, then he is not entitled to get protection under S.106 of Kerala Land Reforms Act.
16. Further in the decision reported in Sathyanesan Punnoos v. Roberson Titus, 1993 KHC 458: 1993 (2) KLT 956: 1993 (2) KLJ 659, it has been held that lessee who constructed a building in the year 1958 and surrendered his lease hold right in 1961 and a new lease deed was executed on the same date where by the land and buildings were rented out to him, then the tenant is not entitled to get the benefit of the amended provisions of S. 106 of Kerala Land Reforms Act.
17. It will be seen from the recitals in Ext. A2 that the terms of lease are different and the extent of the property leased out is also different and it was a combined lease for the building and land. It is recited in Ext. A2 as follows, "whereas the period of lease under document No. 1949/1/66 cited above is to be expired in 1986 and whereas the lesser intends that the lease deed should be a composite one whereby the lease deed registered as document No. 1949/1966 was superseded and cancelled by execution and registration of this deed". Further the earlier lease though subsisting till 1986 was surrendered in view of the fact that a portion of the property with the buildings was acquired and without construction of a fresh building, the conduct of a petrol pump and service station could not be possible. It was in modification of the earlier lease, that the present lease deed was executed in the year 1981 after a portion of the property was retained by the landlord / lessor and only the balance extent was given to the defendant with effect from 1st April, 1981.
18. It is also mentioned in Ext. A2 that at the expiry of the period of lease, the lease will be automatically and without any further act of the parties here to be renewed for a further time of five years and it is also mentioned in W.A.No.451 of 2022 14 the lease deed itself that, at the time of expiry of the lease, the tenant has to surrender possession of the property after removing the structures constructed by them. From the above recitals in the documents and on the basis of evidence, it could not be said to be a renewal of 1966 lease. The evidence discloses that there was surrender of the earlier lease and subsequently a fresh lease deed was executed and it was on that basis the present buildings had been constructed. So the construction at any rate could be possible only after 1981 and not prior to the appointed date mentioned in S.106 of the Kerala Land Reforms Act and therefore, the Court below was perfectly justified in coming to the conclusion that the defendant is not entitled to get protection under S.106 of the Land Reforms Act and rightly rejected that claim on facts.
19. Then the other question to be decided is whether the finding in the earlier proceedings in respect of the question regarding protection under S.106 of the Kerala Land Reforms Act will operate as res judicata in this suit."
10. As the rival contentions as regards the benefit under section 106 of the Kerala Land Reforms Act has not been concluded by the writ court, we direct the Deputy Controller of Explosives, Petroleum and Explosives Safety Organisation, Kakkanad, Ernakulam, respondent No.7, to consider the said aspect as well.
11. However, we make it clear that such consideration should be on the principles of law laid down by this court in W.P.(C)No.10213 of 2020 dated 22.12.2020 and the decision of W.A.No.451 of 2022 15 this court in Indian Oil Corporation Ltd., Kochi v. Joseph Paul (supra).
12. Parties are also permitted to place relevant materials before the said authority for disposal of Exhibit P7 representation, within the time frame.
13. Permission is also granted to both the parties to produce copy of the judgment in this writ appeal and that the Deputy Controller of Explosives, Petroleum and Explosives Safety Organisation, Kakkanad, Ernakulam, respondent No.7, shall provide adequate opportunity to place all other relevant materials for further hearing.
Writ appeal is disposed of with the above modification. Pending interlocutory applications, if any, shall stand closed.
Sd/-
S.Manikumar Chief Justice Sd/-
Murali Purushothaman Judge vpv //true copy// P.A. to Judge