Kunji Mohammed and Others v Bharat Petroleum Corporation Ltd. and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 22[ND] DAY OF AUGUST 2022 / 31ST SRAVANA, 1944** **WP(C) NO. 18108 OF 2022** ## **PETITIONERS:** 1 MR.KUNJI MOHAMMED, AGED 66 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, MANAL PARAMBIL HOUSE, VARODE P.O.OTTAPALAM, PALAKKAD, PIN - 679102 2 MR.ABOOBACKER, AGED 62 YEARS S/O SAIDALIKUTTY, MANAL PARAMBIL HOUSE, THOTTAKARA P.O., OTTAPALAM, PALAKKAD- 679102 REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MR.SHABEER, AGED 38 YEARS, S/O HAMSA, MANAL PARAMBIL HOUSE, VARODE P.O.,OTTAPALAM, PALAKKAD, PIN - 679102 3 MR.MAYAROOF, AGED 61 YEARS S/O PULICKAL KUNHI MOOSA, HIRA MANZIL, CHAMPAD P.O., KANNUR- 670694 REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MR.SHABEER, AGED 38 YEARS, S/O HAMSA, MANAL PARAMBIL HOUSE, VARODE P.O., OTTAPALAM, PALAKKAD, PIN - 679102 BY ADVS. P.MARTIN JOSE P.PRIJITH THOMAS P.KURUVILLA R.GITHESH AJAY BEN JOSE MANJUNATH MENON SACHIN JACOB AMBAT ANNA LINDA V.J HARIKRISHNAN S. W.P.(C) No.18108/2022 2 S.SREEKUMAR (SR.) ## **RESPONDENTS:** 1 THE 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 . REPRESENTED BY ITS CHAIRMAN , PIN - 400001 2 THE CHIEF GENERAL MANAGER (PROJECTS) THE BHARAT PETROLEUM CORPORATION LTD. KOCHI REFINERY COMPLEX, AMBALAMUGAL, COCHIN ., PIN - 682302 3 MR.C.A.ABRAHAM, CHEMMERIKAT HOUSE, 'MAYOORAM',SHORANUR P.O., SHORANUR, PALAKKAD, , PIN - 679121 4 PETROLEUM AND EXPLOSIVES SAFETY ORGANIZATION (PESO), 'A' BLOCK, CGO COMPLEX, 5TH FLOOR, SEMINARY HILLS, NAGPUR, MAHARASHTRA, REPRESENTED BY THE CHIEF CONTROLLER OF EXPLOSIVES , PIN - 440006 5 THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, PETROLEUM AND EXPLOSIVES SAFETY ORGANIZATION (PESO) KENDRIYA BHAVAN, BLOCK C2, CGO COMPLEX, KAKKANAD, ERNAKULAM. , PIN - 682037 BY ADVS. M.GOPIKRISHNAN NAMBIAR M.JITHESH MENON K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM ## **OTHER PRESENT:** S.C. SRI.M.GOPIKRISHNAN NAMBIAR FOR R1 AND R2 ADV.M.JITESH MENON FOR R3 ASGI S. MANU W.P.(C) No.18108/2022 3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.08.2022, THE COURT ON 22/8/2022 DELIVERED THE FOLLOWING: W.P.(C) No.18108/2022 4 ## **V.G.ARUN J.** ------------------------------------- ## **W.P.(C) No.18108 of 2022** ## **---------------------------------** Dated this the 22[nd] day of August 2022 ## **JUDGMENT** Petitioners are the absolute owners in possession of landed property having an extent of 0.0555 hectares in Sy.No. 175/33 of Ottapalam Village, purchased by them under Ext.P1 sale deed. From the property sold to the petitioners, the predecessor-in -interest of their vendors had given an extent of 0.0536 hectares on lease to the first respondent, for conducting a petroleum outlet. The third respondent has been operating the petroleum outlet in the lease hold property, based on the dealers licence granted by the first respondent. The period of lease, which was extended from time to time, expired on 28.02.2012. Thereafter, the lease was not renewed/extended and no rent was collected by the lessors. After purchasing the property on 16.02.2021, the petitioners requested respondents 1 to 3 to vacate the leasehold premises and remove the fixtures and fittings. Since respondents 1 to 3 failed to accede to their request, petitioners approached the statutory authorities, including respondents 4 and 5 demanding to revoke/cancel the licence/permit issued to respondents 1 to 3. The official respondents having failed to take action, the petitioners approached this court in W.P. (C).No. 12035 of 2021 for a declaration that, continuance of the W.P.(C) No.18108/2022 5 petroleum outlet by respondents 1 and 2 in the leasehold property is illegal. That writ petition was disposed of by Ext.P8 judgment, directing the fifth respondent to consider petitioners’ representation in the light of the principles laid down in the judgment in W.P.(C)No.10213 of 2020 and connected cases(Ext.P9). Aggrieved, respondents 1 and 2 preferred appeal against Ext.P8. The writ appeal was disposed of by Ext.P10 judgment, directing the fifth respondent to consider the rival contentions as regards the benefit of Section 106 of the Kerala Land Reforms Act, based on the principles of law laid down in Ext.P9 judgment and the decision in _**Indian Oil Corporation Ltd., Kochi v Joseph Paul**_ **(2016(5) KHC 278).** In purported compliance of the direction, the fifth respondent heard the parties and issued Ext.P12 order, the concluding portion of which reads as under; 1). The request of the petitioner for actions like suspension/cancellation of the License No.P/SC/KL/14/611 (P35310) cannot be considered at this stage for the same being premature in the light of the fact that BPCL's right to the site for storing petroleum is to be decided by the competent civil court or by such other forum. - 2). It is hereby elucidated that appropriate action for suspension/cancellation of the license under rule 152(1)(i) of Petroleum Rules, 2018 will be initiated on confirmation that M/s.BPCL ceased to have any right to the relevant site for storing petroleum, by the competent authority as explained herein above. W.P.(C) No.18108/2022 6 3). The petitioners may approach the concerned District Magistrate to get the NOC cancelled on the basis of their claim, if they may choose so. 2. This writ petition is filed seeking to quash Ext P12 and for other ancillary reliefs. 3. Learned Senior Counsel appearing for the petitioners contended that Ext. P12 is _ex facie_ illegal, as the order is issued contrary to the directions in Ext.P8 and P10 judgments. This court having directed the fifth respondent to take a decision, the said authority committed gross illegality by holding that the BPCL’s right to the site for storing petroleum is to be decided by the competent civil court or such other forum. It is submitted that in Ext.P9 judgment, the learned single judge had relied on the Apex Court judgment in _**C. Albert Morris v K.Chandrasekharan and others**_ **[(2006)1 SCC 228]** to hold that in the absence of any lease or court order, the licensing authority has to decide the matter with available records. It was also observed that the licensing authority cannot postpone its decision merely citing the pendency of dispute before this court or any other court, as the authority cannot shirk its responsibility under statutory provisions. It is contended that, by requiring the petitioners to approach the civil court or other forum, the fifth respondent has done precisely what this court asked him not to do. Attention is drawn to Rule 153(1)(i) of the Petroleum Rules and the dictum in _**Albert Morris** (cited supra)_ to contend that, once the lease expires, the lessees right to the site ceases. W.P.(C) No.18108/2022 7 4. Learned Standing Counsel appearing for respondents 1 and 2 contended that the fifth respondent was justified in rejecting the prayer for cancellation of NOC cancelling the NOC, since disputed questions of fact and law are involved, which the fifth respondent is not empowered to resolve in exercise of the limited power conferred under the Explosives Act and Rules. Alternatively, it is contended that, in event of this Court directing the fifth respondent to re-consider the issue, the said authority should be directed to consider the contention raised by respondents 1 and 2 based on Section 106 of the Land Reforms Act and the dictum in **Joseph Paul's case** (cited supra). 5. Having carefully scrutinized Ext.P8 and P10 Judgments, I find merit in the contention that the fifth respondent had failed to consider the petitioners' representation in the manner directed by this Court. In Ext.P8 Judgment, after elaborately extracting the relevant portions of Ext.P9 judgment including the Apex Court’s decision in _**C.Albert Morris's case**_ (supra), the learned Single Judge had directed the fifth respondent to consider the petitioners' representation in accordance with the principles laid down in Ext.P9 judgment. In this context, it may be relevant to note that Ext.P9 judgment was rendered relying on the dictum in _**C.Albert Morris' case** ,_ the relevant portion of which is extracted hereunder for easy reference. _**“43.** 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_ W.P.(C) No.18108/2022 8 _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 source of a right to the land of which he himself was not in lawful possession. As observed by this Court in M.C. Chockalingam v. V. Manickavasagam [(1974) 1 SCC 48] 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 v. Himatlal Jamnadas Dani [(1972) 1 SCC 388 : (1972) 2 SCR 890] 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 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 for which the Court has granted. The possession of this 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 land 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_ W.P.(C) No.18108/2022 9 _meaning and the effect that unless the person seeking a licence is in a position 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. 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 the tenants.”_ 6. Relying on the afore findings, the learned Single Judge made the following observations inExt.P9 judgment; _“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. “_ 7. It is pertinent to note that the only modification brought about to Ext.P8 judgment by the Division Bench was the direction issued to the fifth respondent to consider the rival contentions as regards the benefit under Section 106 of the Kerala Land Reforms Act also. That too, based W.P.(C) No.18108/2022 10 on the principles of law laid down in Ext.P9 judgment and the decisions in _**Joseph Paul's case**_ (supra). 8. Surprisingly, despite the specific direction in Exts.P8 and P10 judgments, the fifth respondent proceeded to hold that the statutes and rules relevant for dispensation of the functions of PESO does not confer adjudicatory powers on PESO, particularly with regard to disputed questions of facts or law as raised by the parties. Consequently, the fifth respondent refused to consider actions like suspension/cancellation of license issued in favour of first respondent on the premise that such actions can be initiated only after the BPCL ceases to have any right for storing petroleum at the site. If, instead of hastily proceeding to abdicate its powers, the fifth respondent had taken some efforts to read the well considered judgment of the Hon'ble Supreme Court in Albert Morris's case, the authority could have understood that when lease of the land in which the outlet is functioning and petroleum products are stored has expired and the landlord has refused to renew the lease, the erstwhile lessee could no longer assert his right to the site. The Apex Court has specifically held that continued occupation in such cases cannot be regarded as a source of right to the land of which the erstwhile lessee was not in lawful possession. The above legal position is reiterated in Ext.P9 judgment and the learned Judge has also observed that, in the absence of any lease or court order, the licensing authority has to decide the matter with available records. In such circumstances, the fifth respondent was bound to take a decision, rather than shirking from its duty, by putting forth lame excuses. Needless to say that this W.P.(C) No.18108/2022 11 Court having directed to consider the rival contentions with regard to the benefit of Section 106 of the Land Reforms Act, that aspect should also have been addressed and decided. The fifth respondent having failed to venture into any such exercise, Ext.P12 is liable to be quashed. 9. In the result, the writ petition is allowed to the limited extent of quashing Ext.P12 order. Consequently, the fifth respondent is directed to reconsider Ext.P6 representation, strictly in terms of the directions contained in Ext.P8 and P10 judgments and pass a reasoned order after affording opportunity of hearing to the parties. The decision, as directed above, shall be taken within one month of receipt of a copy of this judgment. Sd/- **V.G.ARUN Judge** dpk W.P.(C) No.18108/2022 12 ## **APPENDIX OF WP(C) 18108/2022** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|TRUE COPY OF SALE DEED NO. 668/1/21 DATED 16-| ||02-2021 OF OTTAPALAM SRO| |Exhibit P2|TRUE COPY OF RECEIPT DATED 01-03-2021| ||REMITTED BASIC TAX FOR THE PERIOD 2020-2021| |Exhibit P3|TRUE COPY DOCUMENT NO.2284 OF 1993 OF| ||OTTAPALAM SRO DATED 12-07-1993| |Exhibit P4|TRUE COPY OF NOTICE ISSUED TO THE 2ND| ||RESPONDENT DATED 05-04-2021| |Exhibit P5|TRUE COPY OF NOTICE DATED 05-04-2021ISSUED TO| ||THE 3RD RESPONDENT| |Exhibit P6|TRUE COPY OF REPRESENTATION DATED 05-04-2021| ||SUBMITTED BY THE PETITIONERS BEFORE THE| ||RESPONDENT NOS.4 AND 5, REQUESTING TO REVOKE/| ||CANCEL THE PETROLEUM LICENSE (PESO) ISSUED TO| ||RESPONDENTS 1 TO 3| |Exhibit P7|TRUE COPY OF REPLY DATED 10-04-2021 ISSUED BY| ||THE 3RD RESPONDENT TO EXHIBIT.P5 NOTICE| |Exhibit P8|TRUE COPY OF JUDGMENT IN W.P.(C).NO.12035 OF| ||2021 DATED 14-02-2022 OF THIS HON'BLE COURT.| |Exhibit P9|TRUE COPY OF JUDGMENT DATED 22-12-2020 IN| ||W.P.(C).NO.10213 OF 2020| |Exhibit P10|TRUE COPY OF JUDGEMENT IN W.A.NO.451 OF 2022| ||DATED 06-04-2022 OF THIS HON'BLE COURT| |Exhibit P11|TRUE COPY OF HEARING NOTES DATED 01-04-2022| ||SUBMITTED BY THE PETITIONER BEFORE THE 5TH| ||RESPONDENT| |Exhibit P12|TRUE COPY OF ORDER DATED 01-04-2022 PASSED BY| ||THE 5TH RESPONDENT, REJECTING EXHIBIT.P6| ||REPRESENTATION| |RESPONDENT EXHIBITS|| |Exhibit R3(A)|TRUE COPY OF THE DISPENSING PUMP AND SELLING| ||LICENCE OF THE 3RD RESPONDENT DATED| W.P.(C) No.18108/2022 13 01/02/2020