IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA & THE STATE OF ANDHRA PRADESH (Special Original Jurisdiction) FRIDAY, THE NINETEENTH DAY OF DECEMBER TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.11191 of 2014 BETWEEN M/s. Hindustan Petroleum Corporation Limited.
AND ... PETITIONER The Government of A.P., Rep. by its Principal Secretary, Home Department, Secretariat, Building, Hyderabad and others.
...RESPONDENTS Counsel for the Petitioner: MR. MANU Counsel for the Respondents: GP FOR HOME – R1 & R2 MR. E. MADAN MOHAN RAO For MR. M. VIJAY REDDY – R3 TO R6 MR. G.S. VENUGOPAL – R7 The Court made the following:
ORDER:
Petitioner, Hindustan Petroleum Corporation Limited (HPCL), is a Central Government Undertaking and during the course of its business, it has acquired the premises in question. It has also obtained appropriate protective orders from the competent civil Court in the nature of injunction. However, alleging that there was unlawful interference by respondents 3 to 7, HPCL filed a complaint dated 12.03.2014 before the Commissioner of Police, Hyderabad; the Deputy Commissioner of Police, North Zone as well as the Station House Officer, Police Station Chilakalaguda. Alleging inaction on the part of respondents 1 and 2, which includes the Station House Officer concerned. The present writ petition is filed seeking a Mandamus to compel respondents 1 and 2 to perform their public duty. The writ petition is contested by respondents 3 to 7.
2. Hence, it is necessary to set out few relevant facts, as under:
(a) It is stated that respondent No.7 acquired leasehold rights over premises bearing Municipal No.6-1-118/A/1, A/1/1/ and A/1/2 admeasuring 844.59 sq. yards at Padmaraonagar, Zamistanpur, Secunderabad under registered lease deeds bearing document Nos.358, 359, 360 and 361 of 2013, all of which were registered on 21.02.2013 and were executed by respondents 3 to 6.
The said leasehold rights are stated to subsist till 28.02.2043. Under clause 1(e), setting out lessees covenants, it was provided as follows:
(e) To Sub-lease the site to HPCL for development related to subject matter of business only by registering a separate lease agreement.
Under clause 2 dealing with the covenants of lessor, clause (e) provided as follows:
(e) The Lessor has no objection for sub-leasing the Demised Premises only to HPCL as mentioned in Clause 1(e).
Further, the agreed clause under 3(a) of the lease deed provided as follows:
“(a) The lessee is permitted by the Lessor to utilize the demised premises for the lawful construction of HPCL Retail Outlet and to carry on Petroleum products trade and to enter into sub-leases with HPCL authorities within the leased period of this lease deed.”
(b) Pursuant to the aforesaid specific power to sub-lease, respondent No.7 executed sub-lease deed being document No.556/2013 dated 28.02.2013 in favour of the HPCL. HPCL claims that they were put in possession pursuant to the said sub-lease with the knowledge and consent of respondents 3 to 6 and it is further alleged that respondent No.5 is also a witness to the said sub-lease deed. HPCL, therefore, claims, under the aforesaid lease commencing from 01.04.2013 till 28.02.2043, that they are entitled to use and enjoy the possession of the aforesaid premises. HPCL further states that after the execution of sub-lease deed, it had entrusted the developmental work to one of its contractors, who erected sheds and barricaded the property with a view to protect from third parties.
(c) While so, respondents 3 to 6 started interfering with the development activities of HPCL and even filed a suit O.S.No.438 of 2013 before the III Senior Civil Judge, Secunderabad and obtained ex parte interim injunction vide I.A.No.1020 of 2013 and ultimately, the application in I.A.No.1020 of 2013 was dismissed on 11.10.2013. HPCL also lodged a police complaint dated 04.10.2013. However, as the respondent police did not extend any assistance, respondents 3 to 6 continued to prevent the contractor of HPCL from developing the property and since the interference continued, HPCL filed O.S.No.465 of 2013 before the III Senior Civil Judge, Secunderabad and obtained interim injunction in I.A.No.1138 of 2013 on 23.10.2013. HPCL also sought orders for grant of police aid to enforce the interim injunction in their favour and at that stage, the learned trial Judge heard the injunction application finally and made the injunction absolute on 21.02.2014. HPCL states that, thereafter, their request for police protection dated 12.03.2014 also produced no response. Hence, HPCL moved this Court by the present writ petition.
3. Learned counsel for the petitioner strongly relied upon decision of this
[1]
Court in SATYANARAYANA TIWARI v. SHO, P.S. SANTOSHNAGAR and a decision of the Supreme Court in P.R. MURLIDHARAN v. SWAMI DHARMANANDA THEERTHA [2] PADAR and another decision of this Court in GAMPALA ANTHAIAH v.
[3] KASARLA VENKAT REDDY .
4. Respondent No.2 filed a counter affidavit wherein it is stated that both the parties have filed civil suits before the competent civil Court, which are pending. It is further stated that since no criminal ingredients are made out in the representations/complaints of the petitioner and in view of pendency of the civil disputes, the police did not take any action.
5. In the counter affidavit, however, the execution of the documents, as aforesaid, is admitted. However, they denied interference with the petitioner, as alleged. It is also stated that against the vacation of their injunction in I.A.No.1020 of 2013 in O.S.No.438 of 2013 they have filed CMA.No.41 of 2013, which is pending before the I Additional Chief Judge, City Civil Court, Secunderabad. They denied that respondent No.7 ever paid rents to them. They also denied that any possession was delivered to respondent No.7 in pursuance of the main lease deed. It is also stated that in the suit filed by HPCL, the trial Court made the injunction absolute. However, against that they have already preferred CMA.No.21 of 2014, which is also pending before the I Additional Chief Judge, City Civil Court, Secunderabad. It is, further, stated that though respondents 3 to 6 entered into lease deed with respondent No.7, according to them, the no objection certificate obtained by respondent No.7 relates to only premises bearing No.6-1-118/A/1/1 admeasuring 95 sq. yards and that the no objection did not cover the entire demised property. It is also further alleged that respondents 3 to 6 entered into partnership deed with respondent No.7 but on account of their internal disputes the suits came to be filed, as aforesaid. It is also asserted that neither respondent No.7 nor HPCL has obtained clearance from the Police or Fire Department and as such, there is no permission in favour of the HPCL from the Greater Hyderabad Municipal Corporation.
6. The main thrust of the contentions of the learned counsel for the petitioner is on the lease deed and the sub-lease deed, which are not in dispute between the parties. Learned counsel also placed strong reliance upon the orders of the civil Court, which had made the injunction absolute in favour of HPCL and vacated the interim injunction granted in favour of respondents 3 to 6. Learned counsel, therefore, submits that the possession of HPCL is established by the aforesaid orders. Hence, the respondent – police are duty bound to extend protection to HPCL.
7. Mr. E. Madan Mohan Rao, learned counsel for respondents 3 to 6, on the other hand, submits that though the main lease deed is admitted, delivery of possession is disputed and according to him, the lease deed has not been acted upon. Even otherwise he submits that under a lawyer’s notice dated 20.09.2014, the lease deeds were terminated and thereby, no rights subsist in favour of either respondent No.7 of HPCL. So far as the orders of injunction obtained by HPCL are concerned, it is stated that CMA.No.41 of 2013 and CMA.No.21 of 2014 filed by respondents 3 to 6 are pending adjudication.
CONCLUSIONS:
8. The execution of the lease deeds having been admitted and the sub- lease not being questioned by respondent No.7, prima facie, shows that the right in property created in favour of HPCL is required to be accepted for the purpose of this writ petition unless in the final adjudication in the suits, a finding contrary is recorded. Secondly, the fact that the trial Court has considered injunction applications of HPCL as well as respondents 3 to 6 and has confirmed the injunction in favour of HPCL and vacated the injunction in favour of respondents 3 to 6, clearly establishes that HPCL is in possession and its possession was protected by the order of interim injunction. As long as the said orders subsist, it is, therefore, not open to draw an inference or conclusion that notwithstanding the said injunction orders, the HPCL is not in possession of the property.
9. The contention of the learned counsel for respondents 3 to 6 that the possession was not delivered in pursuance of the lease deeds and consequently, the sub-lease deed, cannot be accepted and it would be contrary to the prima facie finding recorded by the civil Court while making the injunction orders absolute in favour of HPCL as well as vacating the injunction in the application of respondents 3 to 6.
It is, therefore, clear that so far as the writ petition is concerned, HPCL is justified in claiming that its possession is protected by the orders of the civil Court, as referred to above and as such, respondents 1 and 2 are duty bound to protect and provide aid to HPCL so as to enforce the said orders and ensure that the said orders are not violated.
10. Legal position in this respect is well settled as in the Division Bench decision in SATYANARAYANA TIWARI’s case (1 supra) it was held in para 3 that “The legal position as observed by the learned single Judge does not admit of any doubt that the orders of Civil Court prevail on the question of possession. Any anterior or subsequent enquiry and finding of the police or any other authority cannot nullify the findings of the civil Court …”. It was further held in para 5 that “… the police authorities owe a legal duty to the public to enforce the law is clear from the decision of the Court of appeal reported in R. V. Metroplitan Police Commissioner [(1968) 1 All ER 763]…. If the police authorities are under a legal duty to enforce the law and the public or citizens are entitled to seek directions under Article 226 of the Constitution of India for discharge of such duties by the police authorities, we feel that the civil courts also can give appropriate directions under Section 151 CPC to render aid tot eh aggrieved party for the due and proper implementation of the orders of the Court …’. It was held in para 7 that “…The power which a civil Court has under Section 151 CPC, the High Court has in much larger measure under Article 226 of the Constitution of India. We have, therefore, no hesitation in concluding that this Court has ample jurisdiction, to issue a writ or direction to the authorities including the police within the State to enforce the order of the civil Court … and maintain the rule of law.”
11. In the decision in P.R. MURLIDHARAN’s case (2 supra) the Supreme Court also considered the aforesaid aspect and it was held that a writ jurisdiction may be invoked for compliance with a decree or injunction in favour of the writ petitioner or for ensuring police protection in terms of a decree or order passed by the Court with jurisdiction.
12. In the decision in GAMPALA ANTHAIAH’s case (3 supra) it was held vide para 12 that “… The very grant of an order of temporary injunction presupposes that the Court is satisfied as to the prima facie possession of the plaintiff over the suit schedule property and as to balance of convenience in according protection for such possession…” Keeping in view the aforesaid ratio, therefore, as mentioned earlier, the injunction in favour of HPCL was made absolute and the temporary injunction earlier granted in favour of respondents 3 to 6 was vacated, which by itself presupposes that HPCL is in possession and is entitled to seek direction to enforce the said order against any unlawful interference by respondents 3 to 6. Respondents 1 and 2 are, therefore, duty bound to enforce the said order of interim injunction and to give protection and assistance to HPCL, which they have sought by their complaint.
13. Before concluding it is necessary to refer to one Division Bench decision of this Court in POLAVARAPU NAGAMANI v. PARCHURI
[4]
KOTESHWARA RAO wherein it was held to the contrary that an application for police aid under Article 226 of the Constitution of India cannot be filed if the order of interim injunction is violated. Though the said decision is not relied upon by the learned counsel for the respondents, it is necessary to point out that the said decision did not notice the Division Bench decision of this Court in SATYANARAYANA TIWARI’s case (1 supra) as well as the decision of the Supreme Court in P.R. MURLIDHARAN’s case (2 supra) referred to above and the said Division Bench judgment in POLAVARAPU NAGAMANI’s case (4 supra) is also declared as per incuriam in the decision in GAMPALA ANTHAIAH’s case (3 supra). I agree that the decision in POLAVARAPU NAGAMANI’s case (4 supra) is per incuriam.
In the circumstances, the writ petition is accordingly allowed. Petitioner/HPCL is at liberty to make a fresh representation/complaint, if interference by respondents 3 to 6 continues and seek aid of respondents 1 and 2 for enforcement of the interim injunction order in its favour in I.A.No.1138 of 2013 in O.S.No.465 of 2013 passed by the learned III Senior Civil Judge, Secunderabad dated 23.10.2013 and which was also made absolute on 21.02.2014. If such complaint is received, respondent No.2, in particular, shall act in accordance with this order and provide necessary protection to HPCL. As a sequel, miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
VILAS V. AFZULPURKAR, J December 19, 2014 DSK
[1] (1983) 1 An.W.R. 114 = 1982 (2) APLJ 163 (DB)
[2] (2006) 4 SCC 501
[3] 2014 (2) ALD 281
[4] 2010 (2) ALD 41 (DB)