Kerala High Court
Hindustan Petroleum Corporation ... vs Superintendent Of Police
Author: Dama Seshadri Naidu
Bench: Antony Dominic, Dama Seshadri Naidu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
FRIDAY, THE 21ST DAY OF JULY 2017/30TH ASHADHA, 1939
WP(C).No. 21275 of 2017 (H)
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PETITIONER(S):
------------------
HINDUSTAN PETROLEUM CORPORATION LIMITED,
REPRESENTED BY CHIEF REGIONAL MANAGER, COCHIN RETAIL
REGIONAL OFFICE, POST BOX NO.1601, ERNAKULAM NORTH P.O,
PIN 682 018.
BY ADVS.SRI.R.SUDHISH
SRI.P.P.BALAN
SMT.M.MANJU
RESPONDENT(S):
--------------------
1. SUPERINTENDENT OF POLICE,
DISTRICT POLICE OFFICE, ERNAKULAM RURAL,
PERUVEMBA ROAD, ALUVA, ERNAKULAM 683 101.
2. DEPUTY SUPERINTENDENT OF POLICE,
KUZHIPPALLIKAVU ROAD, PERUMBAVOOR,
ERNAKULAM 683 542.
3. CIRCLE INSPECTOR OF POLICE,
PERUMBAVOOR CIRCLE, ERNAKULAM 683 542.
4. SUB INSPECTOR OF POLICE,
PERUMBAVOOR, ERNAKULAM, 683 542.
5. MUHAMMED ILLIYAS
S/O.T.P.MARAKKAR, AGED 45 YEARS, THENOOR HOUSE,
P.O MUDICKAL, PALLIPRAMKARA, MADAMBALY VILLAGE,
KUNNATHUNADU TALUK, ERNAKULAM 683 547.
6. ABDUL NAZAR
S/O.T.P.MARAKKAR, AGED 43 YEARS,
THENOOR HOUSE, P.O MUDICKAL, PALLIPRAMKARA,
MADAMBALY VILLAGE, KUNNATHUNADU TALUK,
ERNAKULAM 683 547.
WP(C).No. 21275 of 2017 (H)
---------------------------------
: 2 :
7. ABDUL KAREEM,
S/O.T.P.MARAKKAR, AGED 40 YEARS, THENOOR HOUSE,
P.O MUDICKAL, PALLIPRAMKARA, MADAMBALY VILLAGE,
KUNNATHUNADU TALUK, ERNAKULAM 683 547.
8. JAVANSA,
D/O.T.P.MARAKKAR, AGED 40 YEARS, THENOOR HOUSE,
P.O MUDICKAL, PALLIPRAMKARA, MADAMBALY VILLAGE,
KUNNATHUNADU TALUK, ERNAKULAM 683 547.
9. FOUSIYA,
D/O.T.P.MARAKKAR, AGED 46 YEARS, THENOOR HOUSE,
P.O MUDICKAL, PALLIPRAMKARA, MADAMBALY VILLAGE,
KUNNATHUNADU TALUK, ERNAKULAM 683 547.
10. BEEPATHUMMA,
W/O.T.P.MARAKKAR, AGED 68 YEARS, THENOOR HOUSE, P.O
MUDICKAL, PALLIPRAMKARA, MADAMBALY VILLAGE,
KUNNATHUNADU TALUK, ERNAKULAM 683 547.
11. SHEFEEQ,
S/O.MARAKKAR, AGED 35 YEARS, MANGALATHINGAL HOUSE,
OLIPPARA, NELLIKKUZHI PO, ERAMELLUR VILLAGE,
KOTHAMANGALAM, ERNAKULAM 686 691.
12. HASSANAR,
S/O.MARAKKAR, AGED 50 YEARS, PULICKAKKUDY HOUSE,
MOULOODPURA, PALLIKKAVALA, MARAMPALLI VILLAGE,
MUDICKAL P.O, PERUMBAVOOR, ERNAKULAM 683 547.
R5-R10 BY ADV. SRI.S.SREEKUMAR (SR.)
R5-R10 BY ADV. SRI.P.MARTIN JOSE
R5-R10 BY ADV. SRI.P.PRIJITH
R5-R10 BY ADV. SRI.THOMAS P.KURUVILLA
R5-R10 BY ADV. SRI.MANJUNATH MENON
R5-R10 BY ADV. SRI.R.GITHESH
R11 & 12 BY ADV. SRI.T.T.MUHAMOOD
R11 & 12 BY ADV. SRI.V.E.ABDUL GAFOOR
R11 & 12 BY ADV. SRI.A.MOHAMMED SAVAD
R11 & 12 BY ADV. SRI.C.Y.VINOD KUMAR
R BY SRI P.P. THAJUDEEN, SR. GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
21-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 21275 of 2017 (H)
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: 3 :
APPENDIX
PETITIONER(S)' EXHIBITS:
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EXHIBIT P1. COPY OF THE AGREEMENT OF LEASE DATED 25.09.00 EXECUTED BY
AND BETWEEN LATE T.P.MARAKKAR AND CORPORATION REGISTERED AS
DOCUMENT NO.5230 OF 2000 OF PERUMBAVOOR SUB REGISTRY OFFICE.
EXHIBIT P2. COPY OF THE JUDGMENT RSA 145/2011 BY THE HONOURABLE HIGH
COURT OF KERALA AND DATED 9.7.12.
EXHIBIT P3. COPY OF APPOINTMENT ORDER DATED 7.4.17 GIVEN BY THE
PETITIONER TO M/S. KUZHIKKATT FUELS GRANTING ADHOC DEALERSHIP.
EXHIBIT P4. COPY OF THE COMPLAINT FILED BY THE SENIOR SALES MANAGER OF
THE PETITIONER BEFORE THE 4TH RESPONDENT WITH COPY TO RESPONDENTS 2
AND 3 DATED 18.5.17.
RESPONDENT(S)' EXHIBITS:
--------------------------------
EXT.R7(a): TRUE COPY OF PLAINT IN O.S. NO. 233 OF 2012 FILED BEFORE THE
MUNSIFF'S COURT, PERUMBAVOOR.
True Copy/
P.A to Judge.
rv
ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ.
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W.P.(C) No. 21275 of 2017 (H)
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Dated this the 21st day of July 2017.
JUDGMENT
Dama Seshadri Naidu, J.
The petitioner, the Hindustan Petroleum Corporation Ltd (HPCL), entered into a lease agreement with the predecessor-in-title to respondents 5 to 12. The lease is for 30 years, commencing from 25.09.2000. HPCL established a petroleum retail outlet on the demised property and entrusted its maintenance to a Trust headed by the 7th respondent.
2. Later, it seems, because of certain differences between HPCL and the trust, HPCL terminated "the maintenance and handling contract" and entrusted the operations to some other agency. There arose further disputes. The contesting respondents, as the legal heirs of the original lessor, who is no more, claimed that HPCL has been in possession of more extent than what had been leased out to it. The claim led to a civil suit.
3. The litigation dragged on about 6 years and eventually W.P.(C) No. 21275/2017 -2- ended in Ext.P2--R.S.A. No. 145 of 2011--judgment, in which this Court, while dismissing the second appeal filed by the contesting respondents, observed:
"Resultantly, the Second Appeal is dismissed. But it is made clear that if the appellants have a case that the respondents are in possession of any property belonging to T.P. Marakkar as per Exts.A2 and A3 and not covered by Ext.A1 (which property is situated towards the eastern portion of the entire property, it will be open to the appellants to seek recovery of possession of such portion not covered by Ext.A1 on the strength of the title they claim, as provided under law giving opportunity to the respondents to raise appropriate contentions in this regard."
4. Now HPCL has come up before this Court with this writ petition seeking police protection. It complains that the contesting respondents have been resorting to violent methods to obstruct HPCL from carrying on its business.
5. In the above factual backdrop, the learned counsel for HPCL contends that despite losing the second appeal, the contesting respondents, under one pretext or another, have been preventing HPCL and its agent from carrying on the business. According to him, the contesting respondents still maintain--with no basis, though--that W.P.(C) No. 21275/2017 -3- a portion of the property has been under HPCL's illegal occupation. So, unless that issue, now in the second round of litigation, is resolved, HPCL cannot carry on its business.
6. Given the public interest involved and given the volatile nature of the substance HPCL trades in, it fears to carry on its business unless there is effective police protection. The learned counsel has stressed that the contesting respondents have been threatening time and again with violent methods that they would not allow HPCL or its agent from carrying on the business.
7. In response, Sri S, Sreekumar, the learned Senior Counsel for the contesting respondents, has submitted that HPCL itself has admitted in paragraph 2 of its counter affidavit that it had entrusted the operations of the retail outlet to a Trust. And there is any amount of dispute, according to the learned Senior Counsel, whether the Trust has handed over possession. Sri Sreekumar asserts that it is the HPCL's burden to approach a competent civil court and establish that it has been put in possession and, therefore, it is entitled to carry on business.
W.P.(C) No. 21275/2017 -4-
8. The learned senior Counsel has also submitted that invoking Article 226 of the Constitution of India in the name of police protection cannot be a shortcut for settling civil disputes. To support his contentions, he has relied on George v. Circle Inspector of Police1 and P.R. Murlidharan and others v. Swami Dharmananda Theertha Pader2.
9. Heard Sri R. Sudhish, the learned counsel for the petitioner and Sri. S. Sreekumar, the learned Senior Counsel, appearing for the contesting respondents, besides perusing the record.
10. Indeed, the factual dispute falls in a narrow compass. HPCL, a public-sector undertaking, is the lessee, the very deceased father of the contesting respondent was the lessor. The lease has been subsisting. For a few years "the Company Owned Contractor Operated" petroleum retail outlet was looked after by a trust, comprising the family members of the lessor. Then they had no disputes about which portion had been illegally occupied by HPCL, the lessee. For certain reasons, seem justifiable, the lessee cancelled the 1 1990(1) KLT 741 2 (2006) 4 SCC 501 W.P.(C) No. 21275/2017 -5- arrangement and took back the management. The Trust, a legal entity, did not challenge this cancellation.
11. Instead, the members, chiefly the lessor's children, picked up a collateral fight: disputed the area under the lessee's possession. The litigation went on for about six years, and ended in the lessee's favour, in second appeal.
12. If at all the Trust managed the retail outlet, it could have done so as a licencee, in permissive possession. Now, HPCL entrusted the management to some other agency. The Trust has not disputed even this arrangement. On either count, the Trust could have approached a competent civil court to vindicate its stand and establish its right. That was not to be.
13. On the other hand, though the contesting respondents have strenuously contended that the dispute concerns possession of the demised property--whether the Trust had handed over the vacant possession--and it ought to be decided by a civil court. That plea, we reckon, is available only to the Trust, capable of suing. Merely because one contesting respondent i.e., the 7th respondent, happened W.P.(C) No. 21275/2017 -6- to be its managing trustee, it does not mean that he has the locus to insist that only the lessee should go before a Court of law, but not the aggrieved Trust.
14. Viewed from a different angle, this Court in second appeal, involving the contesting respondents, has observed that if the contesting respondents have a case that HPCL is in possession of any property belonging to T.P. Marakkar (the lessor), not covered by the lease deed, they can recover possession of such portion as not covered by the lease deed through due process. In effect, in an inter-party litigation, this Court has observed that HPCL is in possession of the property. That observation binds the contesting respondents.
15. As has been rightly contended by the learned counsel for HPCL, given the volatile nature of the substance being marketed by it and the public interest involved, this Court leaves nothing for chance
--especially when the vigilantism or short cut, violent methods threatened to be adopted by the contesting respondents remain undenied.
16. Before parting, we may examine whether HPCL should W.P.(C) No. 21275/2017 -7- approach the civil court and whether that approach is the efficacious alternative remedy it has. For this, we will examine the precedents relied on by the contesting respondents.
17. Three persons (the appellants) are the joint owners of a piece of land, claiming to be in exclusive possession. They sold the right to cut and remove the old rubber trees to a contractor. Any obstruction caused, the appellants should clear the hurdles and enable the contractor to complete the work. The respondent trade unions obstructed. The appellants sought police protection. Help not forthcoming, they filed a writ petition. The respondent trade unions questioned the writ petition's maintainability.
18. On facts, this Court in George observed that averments in the writ petition "are vague and are of a general, sweeping nature." Even the generalized facts have not been substantiated, at least, prima facie, by any evidence discernible from the writ petition (then O.P.). That apart, the affidavit has not disclosed (1) who caused the obstruction or impediment, and (2) what political influence or other extraneous reason prevented the police from giving protection. The W.P.(C) No. 21275/2017 -8- Court also felt that there was no evidence that the appellants sought police protection on any particular day. They did not plead, the Court further observed, whether any alternative remedy is available; if available, its nature; and why it was not invoked or pursued. The Court concluded that absent positive and definite averments, it cannot hold that the appellants have made out a prima facie case.
19. In this context, drawing on well-known principles of public law remedy, the Court in George has held:
"7. It is settled law that the jurisdiction vested in this Court under Article 226 of the Constitution is an extraordinary one and the grant of relief is discretionary. The jurisdiction is one to be exercised with great circumspection and to remedy injustice. Broadly stated, the existence of an alternate remedy is no bar for the exercise of jurisdiction. But one of the important factors, which will deter this Court to entertain a petition under Article 226 of the Constitution to grant the relief is where there exists an alternate remedy, which is equally efficacious and adequate to the petitioner to ventilate his grievances. As to whether an alternate remedy is equally efficacious and adequate is largely a question of fact which depends upon the facts and circumstances of each case. For instance, even in the class of "police protection cases", cases wherein protection is sought for life, or personal liberty is entirely different and distinct from those cases where protection is sought for property. In the former case, the rules as to alternate remedy, pleading or proof and other requirements may not be as rigid or strict, as in the latter; and perspectives involved are different. This vital aspect may require consideration in appropriate cases. The burden is on the petitioner to show, prima facie, that the alternate remedy is not equally W.P.(C) No. 21275/2017 -9- efficacious and adequate in the circumstances."
20. In another instance, a person approached the civil court, asserted a right, and lost his claim. He then filed a writ petition praying for police protection. His claim was to hold the office of Madathipathi of a trust.
21. The Supreme Court in P.R. Murlidharan observed, in the above factual backdrop, that the respondent could not have maintained another suit having lost the earlier one. Yet, another suit on the same issue filed by a third party had still been pending, though. Despite this, the High Court determined contentious issues required to be proved by evidence and ordered police protection by "usurping jurisdiction of civil court." So the Supreme Court has held that disputed questions could not have been gone into by High Court in writ proceedings, and the writ petition could not be made a forum for adjudicating civil rights.
22. In these circumstances, leaving it open for the respondents to establish their right, if any, before a Court of law, we clarify that if W.P.(C) No. 21275/2017 -10- the HPCL or its agent approaches the police apprehending any breach of peace giving rise to a cognizable offence or any grave danger to public safety, the police should provide adequate police protection.
With the above observations, we dispose of the writ petition.
ANTONY DOMINIC, JUDGE.
DAMA SESHADRI NAIDU, JUDGE.
rv W.P.(C) No. 21275/2017 -11-