High Court
Legal Reasoning
WP 13191 24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 13191 OF 2024M/s. Octal Suppliers Private LimitedA Company incorporated under theIndian Companies Act, 1956, havingits registered office at 15-B,Everest House, 46-C, Chowrangee RoadKolkata ANDWork place at Plot No. SW-2, villageBrahamanvel, Tq. Sakri, Dist. Dhule,Through its Director.…PetitionerVERSUS1)The State of MaharashtraIndustry, Energy & Labour Department,Mantralaya, Mumbai.2)Maharashtra Industrial DevelopmentCorporation, through itsExecutive Engineer, Dhule.3)The Collector, Dhule.4)The Superintendent of Police, Dhule5)The Police Inspector,Nizampur Police Station, Sakri, Dhule.6)K.P. Power Private Limited,229/230, Arun Chambers, Next toAC Market, Tardeo, Mumbai-400034....Respondents.…Advocate for Petitioner : Mr. S.V. AdwantA.G.P. for Respondent/State : Mrs. P.J. BharadCORAM: MANGESH S. PATIL & PRAFULLA S. KHUBALKAR , JJ.DATE: 03.12.20241/6
Legal Reasoning
WP 13191 24.odtORDER : ( MANGESH S. PATIL, J.)Heard learned advocate Mr. Adwant for the petitioner and thelearned A.G.P. Mrs. Bharad.2.The petitioner, which is a private limited company, is coming withfollowing prayers:“B)By issuing appropriate writ, order or direction, therespondent nos. 1 to 5, be directed to arrest the illegalactivities and nuisance caused by the intruders, ascomplained by the petitioner in its complaint dated23.08.2024.C)By issuing appropriate writ, order or direction, therespondent nos. 4 and 5 be directed to provide protectionand depute an officer at the site to enable the petitioner torestart the windmill turbines, the operation of which hasbeen stopped due to the nuisance created by the intruders.D)By issuing appropriate writ, order or direction, therespondent no. 3 be directed to identify and locate theboundaries of the leasehold land allocated to thepetitioner.” 3.Mr. Adwant, at the outset submits that though the petitioner isseeking relief in terms of prayer ‘D’, the measurement has already beencarried out and the boundaries have been fixed in respect of the petitioner’sproperty which is originally owned by respondent no. 2-MaharashtraIndustrial Development Corporation (MIDC), taken on lease by respondentno. 6-Company and is in petitioner’s possession as a sub-lease, with theconsent of respondent no. 2-MIDC. He, therefore, submits that the petitioneris merely seeking a copy of the measurement map. Its request is not beingconceded to by respondent nos. 2 and 3.4.In response to our query as to why the petitioner should not be2/6 WP 13191 24.odtrelegated to the remedy of filing a suit in a civil court in respect of theprayer clauses ‘B’ and ‘C’ (supra), in the facts and circumstances of the case,Mr. Adwant would submit that the plot in possession of the petitionerbelongs to respondent no. 2 MIDC. The petitioner is in the business ofenergy generation with renewable sources. The State has evolved a policyfor maximum use of such renewable sources for generation of electricity.The petitioner had taken the plot SW-2 on a sub-lease for 25 years forsetting up a ‘wind farm project’ under the agreement dated 03.01.2006, withthe consent of respondent no. 2-MIDC. It has been operating the wind millssince the year 2006. It has invested huge money to erect the paraphernalia.The State and the State instrumentalities like respondent no.2-MIDC, arebound to protect petitioner’s property. But, there is dearth of action.5.Mr. Adwant would then submit that some miscreants/intruders areobstructing the petitioner in smooth functioning of the wind mills. Thesepersons have been claiming that the land, over which the wind mills havebeen erected belongs to one Ms. Fulabai Fulsing Sonware, and she has beendemanding money. Since the petitioner’s activities had come to a standstill,under compulsion, having been left with no option, it entered into anagreement with that lady on 16.07.2024 and paid her a sum of Rs.5,50,000/-. Still the obstruction has continued. In spite of petitioner’semployees having approached respondent nos. 1 to 5, they are not payingany heed. The F.I.R. had to be lodged. Offence has been registered and stillthe obstruction continues.6.Left with no alternative, the petitioner is invoking the powers of thisCourt under Article 226 of the Constitution of India to protect its rights inthe property, which would otherwise adversely affect the public interestsince the petitioner would not be able to generate and supply the energy.7.Mr. Adwant would submit that it is a public law remedy and thisCourt should intervene. He would rely upon following decisions:3/6 WP 13191 24.odt(1)Hari Krishna Mandir Trust Vs. State ofMaharashtra and others; (2020) 9 SCC 356.(2)Binny Ltd. and another Vs. V. Sadasivan andothers; (2005) 6 Supreme Court Cases 657.(3)St. Mary’s Education Society & another Vs.Rajendra Prasad Bhargava & others; (2023) 4 SCC 498.(4)Sivanandan C.T. and others Vs. High Court ofKerala and others; (2024) 3 Supreme Court Cases 799.8.The learned A.G.P. would submit that the petitioner is seeking toprotect his personal interests by resorting to the extant remedy under Article226 of the Constitution of India, as a shortcut. She submits that if all suchindividual centric disputes are brought to the High Court, that wouldparalyze its functioning. Merely because the petitioner is a private limitedcompany and can afford to approach the High Court directly, cannot beheard particularly when it is quite aware about the dispute and can verywell take recourse to the common law remedy of filing a suit.9.We have considered the rival submissions and perused the papers. Asis mentioned herein above, so far as prayer clause ‘D’ is concerned, indeed,once the measurement has been carried out, it would be appropriate for thepublic offices to issue certified copies of the measurement maps to thepetitioner in accordance with the rules applicable to it.10.So far as the other two prayer clauses ‘B’ and ‘C; are concerned, thesubmission of Mr. Adwant that this Court should exercise extraordinarypower under Article 226 of the Constitution of India on the ground that theState is duty bound to protect the individual interest, is too broad astatement to persuade us to exercise that power. If this parameter is to beapplied, every conceivable dispute would land in the High Court, for it is theState’s responsibility ultimately to maintain the rule of law and protect therights of its citizens.4/6 WP 13191 24.odt11.The decisions cited by Mr. Adwant will have to be understood in thecontext in which those were rendered. The basic principles, which can bededuced from catena of judgments, including the ones cited by Mr. Adwantare to the effect that the power of judicial review is designed to preventabuse of power and neglect of duty by public authorities. Merely becausethere are some factual disputes that by itself cannot be a ground for theHigh Court to refuse to exercise the powers under Article 226 of theConstitution of India, it would depend upon the facts and circumstances ofeach case, as has been laid down in the matter of Gunwant Kaur Vs.Municipal Committe, Bhatinda; (1969) 3 Supreme Court Cases 769, whichhas been referred to and relied upon with emphasis in the matter of HariKrishna Mandir Trust (supra).12.If the petitioner admittedly has taken a property owned by respondentno. 2-MIDC, which was leased out by it to respondent no. 6-Company, on asub-lease from the latter, once the measurements have been carried out, thepetitioner cannot expect the authorities to protect his possession. To theextent of lodging of the F.I.R., the police have already registered the offence.So far as abatement of the alleged illegal activities of causing obstruction orof intrusion into the petitioner’s property, it is always open for it to resort tothe common law remedies of approaching a Civil Court for vindication of itsrights in the property. It would be utopian thought to expect the Statemachinery to guard such individual properties.13.When the petitioner is aware about the nature of obstruction and eventhe reason therefor, in our considered view, this case presents thecircumstances wherein the appropriate remedy for the petitioner is toapproach the Civil Court. We are of the considered view that under the guiseof invoking a public law remedy as a shortcut, the petitioner is avoiding toapproach the Civil Court. Even that lady is not being arrayed as arespondent nor is the petition specifically attributing any direct role of thelady in creating the obstruction. The petitioner, in all probability, is trying to5/6
Decision
WP 13191 24.odtmerely suggest seeking to draw insinuations, by pleading about theobstruction by that lady and the agreement entered into with her.14.Another limb of argument of Mr. Adwant, and as has been mentionedin the ground in the petition, the petitioner is trying to suggest that theremedy of approaching the Civil Court would be a time consuming one,meaning thereby that its stand buttresses our inference that the petitioner isfinding a shortcut. We are not impressed with even this ground beingagitated by the petitioner for this Court to entertain the petition.15.In the circumstances, we dismiss the petition to the extent of prayerclauses ‘B’ and ‘C’ with liberty to the petitioner to resort to the appropriateremedies as are available to it in law including approaching the Civil Court.16.To the extent of prayer clause ‘D’, we direct respondent nos. 2 and 3to ensure that the petitioner is issued with certified copies of themeasurement maps in accordance with the relevant rules, as expeditiouslyas possible. ( PRAFULLA S. KHUBALKAR J.) (MANGESH S. PATIL, J.)mkd/-6/6