Koodathayi Gas Agency, Chunkam Thamarassery, Kozhikode represented by its proprietor K.K. Abdul Majeed v. Director General of Police, Police Headquarters, Thiruvananthapuram; Superintendent of Police, Vadakara (Rural), Kozhikode; Deputy Superintendent of Police, Thamarassery, Kozhikode; Circle Inspector of Police, Thamarassery, Kozhikode; Sub Inspector of Police, Thamarassery, Kozhikode; Indian Oil Corporation Ltd., represented by its Area Manager, Indane Area Office, 2nd Floor, PMK Tower, Civil Station, Vayanadu Road, Kozhikode; V.K. Hassan Kutty; C.A. Muhammed; Shemzeer; Majeed Haji; Numsheed; Suneer P.K.; Shafi Valanjapara

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN MONDAY, THE 28TH DAY OF JANUARY 2013/8TH MAGHA 1934 WP(C).No. 27120 of 2012 (L) -------------------------------- PETITIONER(S): ---------------KOODATHAYI GAS AGENCY CHUNKAM THAMARASSERY P.O. KOZHIKODE REPRESENTED BY ITS PROPRIETOR K.K.ABDUL MAJEED. BY ADVS.DR.S.GOPAKUMARAN NAIR (SR.) SRI.M.CHANDRA BOSE SRI.A.RAJASIMHAN RESPONDENT(S): - ------------------- 1. DIRECTOR GENERAL OF POLICE POLICE HEAD QUARTERS VELLAYAMBALAM P.O. THIRUVANANTHAPURAM 695001. 2. SUPERINTENDENT OF POLICE, VADAKARA (RURAL) KOZHIKODE 673001. 3. DEPUTY SUPERINTENDENT OF POLICE, THAMARASSERY, KOZHIKODE - 673001. 4. CIRCLE INSPECTOR OF POLICE, THAMARASSERY, KOZHIKODE 673001. 5. SUB INSPECTOR OF POLICE, THAMARASSERY, KOZHIKODE 673001. 6. INDIAN OIL CORPORATION LTD,. REPRESENTED BY ITS AREA MANAGER, INDANE AREA OFFICE IIND FLOOR, PMK TOWER, CIVIL STATION VAYANADU ROAD, KOZHIKODE 673020. 7. V.K,.HASSAN KUTTY, S/O.AHEMDKUTTY, VARUVINKALAYIL HOUSE ADIVARAM P.O. KOZHIKODE 673001. WP(C).No. 27120 of 2012 (L) ## 8. C.A.MUHAMMED, S/O.KHADER, CHEERAKUZHIYIL HOUSE KAITHAPOYIL P.O. KOZHIKODE 673 001. 9. SHEMZEER, S/O.HUSSAIN, KOTHATTIL HOUSE, KOTTARAKOTH PUTHUPADY, PERUMPALLY P.O. KOZHIKODE 673 001. ## 10. MAJEED HAJI S/O. LATE ABDUL RAHMAN HAJI, THUMBAMPARAMBIL HOUSE PUTHUPADI P.O. KOZHIKODE 673 001. 11. NUMSHEED, S/O.MAMMI, PAZHANKUNNUMMEL, KAITHAPOYIL P.O PUTHUPADI, KOZHIKODE 673 001. 12. SUNEER P.K. S/O. ABDUL RAHMAN, KOTTAMKUZHIYIL KAKKAD P.O. KOZHIKODE 673 001. 13. SHAFI VALANJAPARA, KOTTARAKOTH, PERUMPALLY P.O. PUTHUPADI KOZHIKODE 673 001. R7-R13 BY ADV. SRI.K.A.SALIL NARAYANAN R5 BY STATE ATTORNEY SRI.P.VIJAYARAGHAVAN BY SENIOR GOVERNMENT PLEADER MUHAMMED SHAH R6 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R6 BY ADV. SRI.P.GOPINATH R6 BY ADV. SRI.P.BENNY THOMAS R6 BY ADV. SRI.K.JOHN MATHAI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SJ WP(C).No. 27120 of 2012 (L) ## **APPENDIX** PETITIONER(S) EXHIBITS - EXT.P1 TRUE COPY OF THE CERTIFICATE. EXT.P2 TRUE COPY OF THE CONCESSION CERTIFICATE. EXT.P3 TRUE COPY OF THE REPORT IN MALAYALA MANORAMA ON 3/3/2012. EXT.P4 TRUE COPY OF THE REPORT IN MALAYALA MANORAMA ON 27/10/2012. EXT.P5 TRUE COPY OF THE REPORT IN MALAYALA MANORAMA ON 11/11/2012. EXT.P6 TRUE COPY OF THE REPORT IN MATHRUBHOOMY ON 10/11/2012. EXT.P7 TRUE COPY OF THE COMPLAINT DT. 7/11/2012. EXT.P8 PHOTOGRAPHS EXT.P9 TRUE COPY OF THE COMPLAINT DT. 10/11/2012. EXT.P10 TRUE COPY OF THE REPORT IN MALAYALA MANORAMA ON 14/11/2012. RESPONDENTS' EXHIBITS NIL /TRUE COPY/ P.A.TO JUDGE SJ ## **K.M. JOSEPH & K. RAMAKRISHNAN, JJ.** - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No.27120 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28[th] day of January, 2013 ## J U D G M E N T ## **K.M. JOSEPH,J** Petitioner has approached this court seeking the following reliefs: i. Issue a writ of mandamus, or any other writ, order or direction, directing respondents 1 and 5 to give adequate and effective police protection for the smooth functioning, supply and property of the petitioner agency and for the life of its staff including the distributor. ii. Issue a writ of mandamus, or any other writ, order or direction, directing the respondents 7 to 13 to pay a compensation of Rs.2,50,000/- to the petitioner for the damages caused to the petitioner agency and also to pay the cost of 6 regulators taken away by them from the petitioner agency. 2. Briefly put, the case of the petitioner is as follows: _W.P.(C). No.27120 / 2012_ 2 Petitioner is a LPG distributor in Kozhikode. There has been acute shortage of LPG from the plant which is evident from Ext.P3 to P6 and for taking political mileage out of the same respondents 7 to 13 activists of Muslim Youth League with their men picketed petitioner agency, attacked and assaulted its distributor and staff and destroyed the properties of the agency by criminally trespassing into it on 7.11.2012 and 10.11.2012(Ext.P8). Apart from causing huge damage for Rs.2,50,000/- the above respondents took away 6 gas regulators also. They are not allowing the petitioner to function and are causing threat to the life and properties of the petitioner and its staff. Though Ext.P7 and P9 complaints were given, till date no action has been taken and hence the petitioner is before us. ## 3. Counter affidavit is filed by respondents 7 to 13, inter alia, stating as follows: The petitioner agency operates over an area of 30 kilometers spread over 15 panchayats and having 43,000 customers. There was a shortage of LPG in the _W.P.(C). No.27120 / 2012_ 3 state. But, the petitioner even before that, was indulging in all kinds of illegal activities. Consumers who had booked for their refill cylinders, had to wait for weeks, if not months for getting the refill cylinders. The same is not due to paucity of LPG, but due to the fact that petitioner was indulging in black marketing by selling the cylinders to persons jumping the queue for a higher price. There is reference to Ext.R7(a) resolution passed by the Panchayat. It is further stated that the petitioner has not fulfilled its duty to deliver the refill cylinders at the residence of the customers as seen in Ext.R7(c) paper report. Exts.R7(b) to (d) are new paper reports relied on by the party respondents. There is a communication from the office of the Civil supplies officer. 4. Petitioner has filed a reply affidavit. A statement is also filed by the 6[th] respondent, inter alia, stating that the sixth respondent has not received any formal complaint alleging that the petitioner has been indulging in black marketing, or that petitioner is refusing _W.P.(C). No.27120 / 2012_ 4 to deliver the cylinders to the residence of the consumers as alleged. A statement is also filed by the 5[th] respondent. Therein, it is, inter alia, stated that there are several complaints of malpractice and black marketing against the agency in distributing gas cylinders to the customers. The IUML Activists themselves conducted an unlawful assembly and their march obstructed the movement of vehicles and pedestrians and blocking the gas agency raising slogans against the CITU. It is stated that the police have arranged police patrolling and picket-post in around the premises to maintain law and order. 5. We heard learned counsel for the petitioner, the learned counsel appearing on behalf of respondents 7 to 13 and the learned counsel for the 6[th] respondent/corporation besides the learned government pleader. In the circumstances, we see no reason why we should not make the interim order absolute. Accordingly, we dispose of the writ petition, by making the interim order dated 16.11.2012 as clarified in order dated 30.11.2012, in _W.P.(C). No.27120 / 2012_ 5 paragraph two which are extracted herein, absolute: ## Interim Order dated 16.11.2012 reads as follows: “Government Pleader takes notice for respondents 1 to 5. M/s. Menon & Pai takes notice for the sixth respondent. Notice by special messenger to respondents 7 to 13. There will be an interim order directing respondents 4 and 5 to give effective police protection for the smooth functioning of the petitioner agency and for the life of the staff as against any obstruction from respondents 7 to 13, for a period of one week.” ## Interim Order dated 30.11.2012 reads as follows: “The interim order is extended till 11.12.2012 subject to condition that the petitioner will carry on the business strictly in accordance with law and as per the contractual provisions.” 6. We also direct that protection will be granted as and when required. We further make it clear that this judgment will not stand in the way of the crimes registered _W.P.(C). No.27120 / 2012_ 6 being investigated in accordance with law. 7. We also record the willingness of the 6[th] respondent to look into any complaint as per law. The learned counsel for petitioner then submits that this court may also consider granting compensation as sought for in the second relief. In this context he sought to draw support from the judgment of a Division Bench of this Court in [ **Kodungalloor Merchants Association v. State of Kerala (2006 KHC 199)** ]. We notice that the prayer for compensation is sought against respondents 7 to 13. They are private individuals. The judgment which is relied on by the learned counsel for petitioner related to damages caused during the course of “bandh” and “harthal”. Therein, the Bench observed that since the matter relates to fundamental rights and enforcement of public duties, the remedy would still be available, notwithstanding the pendency of the Civil Suit for damages under the private law. Reliance placed on the said judgment in the facts of this case is misplaced. _W.P.(C). No.27120 / 2012_ 7 8. In this case as already noted the relief sought is for compensation against private individuals. The petitioner is relegated to pursue the remedy before the competent civil court. _Sd/-_ **K.M.JOSEPH, JUDGE** _Sd/-_ **K.RAMAKRISHNAN, JUDGE** _// True Copy //_ _P.A. To Judge_ _ss_