K.H.Rafia v. Dr.M.Murugan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 12.11.2009 C O R A M :THE HONOURABLE MR.H.L.GOKHALE, THE CHIEF JUSTICEANDTHE HONOURABLE MR.JUSTICE N. PAUL VASANTHAKUMAR W.A.Nos.1625 of 2009 and 504 of 2008and W.P.No.11322 of 2006 andM.P.No.1 of 2009 (2 MPs)W.A.No.1625 of 2009:K.H.Rafia... Appellant -vs- 1. Dr.M.Murugan2.M.Vimala3.Hindustan Petroleum CorporationLimited, rep.by its Chief ExecutiveOfficer, No.17, Jamshedji Tata Road, Mumbai-400 020. ... Respondents W.A.No.504 of 2008:Hindustan Petroleum CorporationLimited, rep.by its Chief ExecutiveOfficer, No.17, Jamshedji Tata Road, Mumbai-400 020. ... Appellant -vs-1.Dr.M.Murugan2.M.Vimala3.K.H.Rafia ... Respondents W.P.No.11322 of 2006:

Dr.M.Murugan2.M.Vimala ... Petitioners -vs-1.The Hindustan Petroleum Corporationrep.by its Chief Executive Officer,17, Jamshedji Tata Road, Mumbai-400 020. https://hcservices.ecourts.gov.in/hcservices/

K.H.Rafia ... Respondents PRAYER : Appeals filed under Clause 15 of the Letters Patent againstthe order dated 16.8.2007 made in W.P.M.P.No.12872 of 2006 Presentedto this Court to grant an order of injunction restraining the 1strespondent from supplying petrol, diesal or other allied products tothe 2nd respondent at land and Premises at old survey No.5/1B-5 and5/12B (New S.No.5/1-2B, 15 and 5/2 B6) at Varna Theertham village, Harur Town, Dharmapuri District pending in W.P.No.11322 of 2006 onthe file of this Court.PRAYER IN W.P. : Petition filed under Article 226 of the Constitutionof India praying for the issuance of a writ of mandamus forbearingthe first respondent from renewing the licence in favour of the 2ndrespondent to vend its petroleum products in the land in S.No.5/1B-15and 5/12B (New S.No.5/1-2B, 15 and 5/2B6) of Varnatheertham Village, Harur Town, Dharmapuri District. In W.A.No.1625 of 2009:For appellant : Mr.R.Muthukumarasamy, SC for Mr.A.J.Jawad For respondents : Mr.R.Subramanian for R1 & R2 Mr.Yashod Vardhan, SC for M/s.Span Associates for R3 In W.A.No.504 of 2008:For appellant : Mr.Yashod Vardhan, SC for M/s.SPAN Associates For respondents : Mr.R.Subramanian for R1&R2 Mr.R.Muthukumarasamy, SC for Mr.A.J.Jawad for R3 In W.P.No.11322 of 2006:For petitioner : Mr.R.Subramanian For respondents : Mr.Yashod Vardhan, SC for M/s.Span Associates for R1 Mr.R.Muthukumarasamy, SC for Mr.A.J.Jawad for R2 https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T(JUDGMENT OF THE COURT WAS DELIVERED BY THE HONOURABLE THE CHIEF JUSTICE)The appeals seek to challenge the order passed by a learnedSingle Judge dated 16th August 2007 on an interim petition bearingW.P.M.P.No.12872 of 2006 in Writ Petition No.11322 of 2006. This writpetition was filed by one Dr.M.Murugan and his wife Mrs. Vimala, whoare respondents 1 and 2 in both the appeals.2. The appellant in W.A.No.504 of 2008 is Hindustan PetroleumCorporation Limited (HPCL), whereas the appellant in W.A.No.1625 of2009 is one K.H.Rafia, who is the second respondent in the writpetition. The dispute is with respect to the running of a petrolstation of Hindustan Petroleum on the land bearing Survey No.5/1B-15and 5/12B (New S.No.5/1-2B, 15 and 5/2B6) of Varnatheertham Village, Harur Town, Dharmapuri District.

Heard Mr.Yashod Vardhan, learned Senior Counsel appearingwith M/s.Span Associates for the Hindustan Petroleum Corporation; Mr.R.Subramanian, learned counsel appearing for Dr.Murugan and Smt. Vimala; and Mr.R.Muthukumaraswamy, learned Senior Counselappearing with Mr.A.J.Jawad for Smt. Rafia.

The learned counsel for all the parties agree that alongwith these appeals, the main writ petition itself may, as well, bedecided. Accordingly, the writ petition is taken up in the causelistand the writ appeals and the writ petition are being decided together.

The short facts leading to these appeals are thiswise:-The concerned parcel of land was initially owned by one AbdulMajid. He entered into a dealership agreement with M/s.ESSO EasternIncorporation, the predecessor of Hindustan Petroleum Corporation on11th March 1970. The agreement was continued from time to time. Theabove-referred Abdul Majeed died on 29th January 1980 leaving behindhis son A.Haroon and daugher-in-law Smt. Rafia, who took over thebusiness. A.Haroon died on 18th July 1988. Smt. Rafia thereafter soldthe property to one M.Masi, son of Muthu Gounder on 21st October 1991.The said Masi died on 29th January 2006. His representatives sold theproperty to Dr.Murugan and Smt. Vimala on 23rd February 2006. Thepetrol bunk on the particular property was continued to be run by theabovereferred Smt. Rafia under her dealership with M/s.HindustanPetroleum Corporation. It is, however, not disputed that from 2002onwards, the petrol bunk has not been running. It appears from therecord that the petrol bunk became defunct and there are statementson record that in 2004, there was no petrol stock in this petrol pump. https://hcservices.ecourts.gov.in/hcservices/

Be that as it may, the abovereferred Dr.Murugan and his wifefiled the writ petition praying that the Hindustan PetroleumCorporation be restrained from renewing the licence in favour of thesecond respondent - Smt. Rafia with respect to the particular parcelof land. Dr.Murugan and his wife also sought an injunction torestrain the Hindustan Petroleum Corporation from supplying petrol, diesel or other allied products to Smt. Rafia.

After hearing all the parties, the learned Single Judge hasgranted the injunction and, hence, these two appeals, one byM/s.Hindustan Petroleum Corporation and the other by Smt. Rafia.

Mr.Yashod Vardhan, learned Senior Counsel appearing forM/s.Hindustan Petroleum Corporation submits that the dealershipagreement between this Corporation and the abovereferred Smt. Rafiacontinues to subsist. Under Clause 3 of this agreement, the saidagreement is supposed to remain in force for one year from the dateof the agreement and thereafter until determined. His submission isthat the agreement is not determined and, therefore, the HindustanPetroleum Corporation should be permitted to run the petrol bunk overthere with its dealership to Smt. Rafia.

Mr.R.Muthukumarasamy, learned Senior Counsel appearing forthe aforesaid Smt. Rafia supports this submission. He submits that thewording in the prayer is defective. The licence is given toM/s.Hindustan Petroleum Corporation by the Government of India, Ministry of Commerce and Industry, Department of Explosives. Thedealership between M/s.Hindustan Petroleum Corporation and Smt. Rafiais that of a Principal and Agent or that of a Dealer. In any case, his submission is that this injunction should not have been granted.

There is also a reference to Rule 153 of the PetroleumRules, 2002 and also to a judgment of the Apex Court in the case ofC.ALBERT MORRIS -VS- K.CHANDRASEKARAN & OTHERS reported in 2006-1-L.W. 521, wherein it is held that under sub-clause (1) of the saidRule, once the ownership of the property passes to a differentperson, automatically the licence granted comes to an end. It issubmitted by both the learned Senior Counsel that this judgment willnot apply to the present case. As against that, Mr.R.Subramanian, learned counsel submits that Dr.Murugan and his wife have nothing todo with the agreement of dealership between the Hindustan PetroleumCorporation and Smt. Rafia. The land belongs to them and if they donot want this petrol bunk to be run in their property, they cancertainly object and seek an injunction that they have sought, whichis what the learned Single Judge has done.

We have noted the submission of all the learned counsel. Inour view, the position is very clear. Dr.Murugan and his wife are notparties to the agreement between M/s.Hindustan Petroleum Corporationand Smt. Rafia, though they are the owners of the property and they do https://hcservices.ecourts.gov.in/hcservices/ not want a petrol bunk to be run in their property. They have soughta mandatory injunction through the writ petition, which is what thelearned Judge has done and in our view, this was perfectlyjustified. The petition is also fully justified with respect to thisprayer. It is the right of the owners of the property to decide as towhat activity should be carried on in their property. The agreementbetween the other parties cannot bind them in any manner whatsoever.

In the circumstances, both the appeals stand dismissed. Thewrit petition stands allowed. Consequently, the connectedmiscellaneous petitions are closed. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarToThe Chief Executive Officer, Hindustan Petroleum CorporationLimited, No.17, Jamshedji Tata Road, Mumbai-400 020. +Two CCs to Mr.S.Swaminathan Advocate Sr.60705 & 60704+One CC to Mr.R.Subramaniam Advocate Sr.61165+One CC to Mr.A.J.Jawad, Advocate, Sr.60604 W.A.Nos.1625 of 2009 and 504 of 2008 and W.P. No.11322 of 2006 and M.P.No.1 of 2009 (2 MPs)TEJ (CO)SRA 26/11/2009