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

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** ## **MONDAY, THE 14[TH] DAY OF FEBRUARY 2022 / 25TH MAGHA, 1943** ## **W.P.(C) NO.12035 OF 2021** ## **PETITIONERS:** **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. 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.** **BY ADVS. S.SREEKUMAR (SR.) P.MARTIN JOSE P.PRIJITH THOMAS P.KURUVILLA R.GITHESH AJAY BEN JOSE MANJUNATH MENON SACHIN JACOB AMBAT HARIKRISHNAN S. ANNA LINDA V.J** **W.P.(C) NO.12035 OF 2021** -2- ## **RESPONDENTS:** - **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.** - **3 C.A.ABRAHAM, CHEMMERIKAT HOUSE, MAYOORAM, SHORANUR P.O., SHORANUR, PALAKKAD, PIN-679 121.** - **4 THE SECRETARY, OTTAPALAM MUNICIPALITY, OTTAPALAM, PALAKKAD, PIN-679 102.** - **5 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.** - **6 THE DEPUTY CONTROLLER OF EXPLOSIVES, PETROLEUM AND EXPLOSIVES SAFETY ORGANIZATION (PESO), KENDRIYA BHAVAN, BLOCK C2, CGO COMPLEX, KAKKANAD, ERNAKULAM-682 037.** - **7 KERALA STATE POLLUTION CONTROL BOARD, HEAD OFFICE, PATTOM P.O., THIRUVANANTHAPURAM-695 004, REPRESENTED BY ITS CHAIRMAN.** - **8 THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, NEAR DISTRICT PANCHAYAT OFFICE, PALAKKAD-678 001.** ## **W.P.(C) NO.12035 OF 2021** -3- **BY ADVS. M.GOPIKRISHNAN NAMBIAR M.JITHESH MENON M.V.BOSE K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM VINOD MADHAVAN SHARATH S.PUTHENPARAMPAN ANU PAUL** **R1&R2 SRI.M.GOPIKRISHNAN NAMBIAR** - **R3 SRI.M.JITHESH MENON** - **R4 SRI.VINOD MADHAVAN, STANDING COUNSEL** **SRI.S.MANU, ASSITANT SOLICITOR GENERAL OF INDIA** **R7&R8 SRI.T.NAVEEN, STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C) NO.12035 OF 2021** -4- ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------------------------W.P.(C) No.12035 of 2021** **-----------------------------------------------Dated this the 14[th] day of February, 2022** ## **JUDGMENT** The above writ petition is filed with the following prayers: “a. Declare that the continuance of the petroleum outlet by the respondents 1 and 2 in the property of the petitioners covered under Exhibit 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 Exhibit 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 Exhibits P6 and P7 respectively within a time limit fixed by this Hon'ble Court; **W.P.(C) NO.12035 OF 2021** -5- 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 to operate the petroleum outlet in the land covered under Exhibit P3.” [ _SIC_ ] 2. According to the petitioners, they are the absolute owners in possession of the property having an extent of 0.0555 hectares in Survey No.175/33 of Ottapalam Village, vide Sale Deed No.668/1/21 dated 16.02.2021 of the Sub Registrar Office, Ottapalam. Ext.P1 is the sale deed and Ext.P2 is the tax receipt showing the payment of tax for the above land. It is the case of the petitioners that the 1[st] respondent had taken on lease an extent of 13.26 cents of land in Survey No.175/6 of Ottapalam-11 Village from Sathyavathi Amma and others for the purpose of erecting a petroleum outlet, in pursuance of which the 1[st] respondent was conducting a petroleum outlet in the property. It is the case of the petitioners that the lease expired on 28.02.1992. After the expiry of the lease, Sathyavathi Amma and others executed a fresh lease deed in favour of the 1[st] respondent in respect of the said 13.26 cents of land as per Ext.P3 lease deed. The period of lease as per **W.P.(C) NO.12035 OF 2021** -6- Ext.P3 was for a period of 20 years from 01.03.1992 to 28.02.2012. The lease was for the purpose of running the petroleum outlet of the 1[st] respondent. It is the case of the petitioners that by virtue of Clause 4(ii) of Ext.P3, on determination of the lease either by efflux of time or otherwise, the lessee shall remove all the fixtures and fittings in the premises within three months and shall hand over vacant possession thereof. The land owners Sathyavathi Amma and others assigned the property covered under Ext.P3 and in excess having an extent of 13.72 cents of land as per document Nos.4424 of 2005 dated 05.12.2005 and document No.4672 of 2007 dated 30.11.2007 in favour of Abdurahiman Haji and others. Thereafter, the petitioners purchased the property from Abdurahiman Haji and others as per Ext.P1 sale deed No.668/1 of 2021 dated 16.02.2021. 3. It is submitted that the 1[st] respondent had installed the petroleum outlet in the leasehold property and has been operating the same after obtaining licenses, consents from respondent Nos.4 to 8. It is the case of the petitioners that the 1[st] respondent had granted dealers license to the 3[rd] respondent **W.P.(C) NO.12035 OF 2021** -7- to operate the petroleum outlet in the property, covered under Ext.P3. The 3[rd] respondent is operating the petroleum outlet in the name and style 'E.P. Petroleum Agencies, in the land covered under Ext.P3. After the expiry of the period of Ext.P3 lease on 28.02.2012, the lease was not extended/renewed by the predecessors-in-interest of the petitioners. Hence, according to the petitioners, the lease got automatically terminated on 28.02.2012 by efflux of time and no rent has been paid by the respondent Nos.1 to 3 since then. It is submitted by the petitioners that the respondents 1 to 3 has not been paying rent since 2005 to the predecessors-in-interest of the petitioners. It is also submitted that, after the purchase of the property, the petitioners approached the respondent Nos.2 and 3 requesting to vacate the property covered under Ext.P3 lease deed after removing the installations, fixtures and fittings, etc. But the respondent Nos.2 and 3 has not vacated the leasehold property. Therefore, the petitioners approached the statutory authorities with representations. There is no action taken by them. In such situation, this writ petition is filed. **W.P.(C) NO.12035 OF 2021** -8- 4. Heard the Senior Counsel Adv. S. Sreekumar duly assisted by Adv. P. Martin Jose. I also heard the Standing Counsel appearing for the 1[st] respondent and the learned counsel appearing for the 3[rd] respondent who is running the petroleum outlet. I also heard the Standing Counsel for the 4[th] respondent Municipality and the Standing Counsel for respondents 7 and 8. 5. The short point raised by the Senior Counsel is that the issue raised in this writ petition is covered in favour of the petitioners as per the judgment dated 22.12.2020 in W.P.(C) No.10213 of 2020 and connected cases. The Senior Counsel submitted that in the light of the above judgment, the license cannot be renewed if the licensee ceased to have any right in the site. The petitioners have approached with Ext.P7 representation raising the point before the 6[th] respondent, no action is taken by the 6[th] respondent. The counsel submitted that in the light of the judgment in W.P.(C) No.10213 of 2020 and connected cases, the license is to be cancelled. 6. On the other hand, the Standing Counsel appearing for the 1[st] respondent submitted that the facts in the above **W.P.(C) NO.12035 OF 2021** -9- 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 Kerala Land Reforms Act. On the other hand, the Senior Counsel submitted that the 1[st] 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 4[th] respondent submitted that, as per the records, the 3[rd] respondent is not the licensee. But on the other hand, the learned counsel appearing for the 3[rd] respondent submitted that the 3[rd] respondent is the licensee and he produced the documents to support the same in his counter affidavit as Ext.R3(a). 7. After hearing both sides, this Court is of the view that, it is not necessary to go to the details of the case or the disputed questions of facts raised by the parties. I perused the judgment dated 22.12.2020 in W.P.(C) No.10213 of 2020 and connected cases. It will be better to extract the relevant portion of the above judgment. Paragraphs 13 to 15 of the said **W.P.(C) NO.12035 OF 2021** -10- ## judgment is extracted hereunder: “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 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 **W.P.(C) NO.12035 OF 2021** -11- 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 ## **W.P.(C) NO.12035 OF 2021** -12- 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 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 ## **W.P.(C) NO.12035 OF 2021** -13- 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. 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). **W.P.(C) NO.12035 OF 2021** -14- 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.” According to me, the point raised in this writ petition is **W.P.(C) NO.12035 OF 2021** -15- covered by the above judgment. The petitioners have already approached the 6[th] respondent with a representation, as evident by Ext.P7. There can be a direction to the 6[th] 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 6[th] 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 6[th] respondent is directed 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, 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 6[th] respondent for compliance. iv) After passing the orders as directed above, the ## **W.P.(C) NO.12035 OF 2021** **==> picture [20 x 9] intentionally omitted <==** 6[th] respondent shall communicate the order to the petitioners and other affected parties immediately thereafter. Sd/- **P.V. KUNHIKRISHNAN JUDGE** bpr -17- ## **W.P.(C) NO.12035 OF 2021** ## **APPENDIX** ## **PETITIONERS' 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 P4(A) TRUE COPY OF POSTAL RECEIPT FOR SENDING EXHIBIT P4.** - **EXHIBIT P5 TRUE COPY OF NOTICE ISSUED TO THE 3RD RESPONDENT DATED 05.04.2021.** - **EXHIBIT P6 TRUE COPY OF REPRESENTATION DATED 05.04.2021 SUBMITTED BY THE PETITIONERS BEFORE THE 4TH RESPONDENT REQUESTING NOT TO ISSUE TRADE LICENSE/D&O LICENCE OR TO REVOKE THE LICENSE IF ALREADY ISSUED TO THE RESPONDENTS 1 TO 3.** - **EXHIBIT P6(A) TRUE COPY OF POSTAL RECEIPT FOR SENDING EXHIBIT P6.** **EXHIBIT P7 TRUE COPY OF REPRESENTATION DATED 05.04.2021 SUBMITTED BY THE PETITIONERS BEFORE THE RESPONDENT NOS.5 AND 6 REQUESTING TO REVOKE/CANCEL THE PETROLEUM LICENSE (PESO) ISUED TO THE RESPONDENTS 1 TO 3.** **EXHIBIT P7(A) TRUE COPY OF POSTAL RECEIPT FOR SENDING EXHIBIT EXHIBIT P7 TO THE RESPONDENT NO.5** -18- ## **W.P.(C) NO.12035 OF 2021** **EXHIBIT P7(B) TRUE COPY OF POSTAL RECEIPT FOR SENDING EXHGIBIT P7 TO THE RESPONDENT NO.6.** **EXHIBIT P8** **TRUE COPY OF REPRESENTATION DATED 05.04.2021 SUBMITTED BY THE PETITIONERS BEFORE THE 8TH RESPONDENT TO CANCEL THE CONSENT TO OPERATE ISSUED TO THE RESPONDENT NOS.1 TO 3 FOR OPERATING THE PETROLEUM OUTLET.** **EXHIBIT P8(A) TRUE COPY OF POSTAL RECEIPT FOR SENDING EXHIBIT P8.** **EXHIBIT P9** **TRUE COPY OF REPLY DATED 10.04.2021 ISSUED BY THE 3RD RESPONDENT TO EXHIBIT P5 NOTICE.** ## **RESPONDENTS' EXHIBITS** **EXHIBIT R3(A) TRUE COPY OF THE DISPENSING PUMP & SELLING LICENSE OF THE 3RD RESPONDENT DATED 01.02.2020.**