THE HONBLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.11191 of 2014 19-12-2014 M/s. Hindustan Petroleum Corporation Limited.PETITIONER The Government of A.P., Rep. by its Principal Secretary, Home Department, Secretariat, Building, Hyderabad and others.RESPONDENTS

THE HONBLE SRI JUSTICE VILAS V. AFZULPURKAR        

WRIT PETITION No.11191 of 2014  

19-12-2014

M/s. Hindustan Petroleum Corporation Limited.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    
<GIST   :
>HEAD NOTE:  
? Cases referred:
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)


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.


... PETITIONER
AND

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 Court in SATYANARAYANA TIWARI v. SHO, P.S.    
SANTOSHNAGAR  and a decision of the Supreme Court in    
P.R. MURLIDHARAN v. SWAMI DHARMANANDA THEERTHA            
PADAR  and another decision of this Court in GAMPALA ANTHAIAH    
v. 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 lawyers 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 TIWARIs 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. MURLIDHARANs 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 ANTHAIAHs 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      
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  
TIWARIs case (1 supra) as well as the decision of the Supreme Court
in P.R. MURLIDHARANs case (2 supra) referred to above and the
said Division Bench judgment in POLAVARAPU NAGAMANIs case (4      
supra) is also declared as per incuriam in the decision in GAMPALA
ANTHAIAHs case (3 supra). I agree that the decision in
POLAVARAPU NAGAMANIs 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