Rajath O.M. vs. State Of Kerala - Kerala High Court, 23 October 2018

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY ,THE 23RD DAY OF OCTOBER 2018 / 1ST KARTHIKA, 1940 WP(C).No. 29869 of 2018 PETITIONER/S: RAJATH O.M., OZHUKIL MEETHIL HOUSE, ANNASSERRY, THALAKULATHUR, KOZHIKODE. BY ADVS. SRI.P.S.SREEDHARAN PILLAI SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN SRI.T.K.SANDEEP RESPONDENT/S: 1 STATE OF KERALA, REP BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 EXECUTIVE ENGINEER, HARBOUR ENGINEERING DIVISION, PUTHIYAPPA, KOZHIKODE- 673 021. 3 SUB INSPECTOR OF POLICE, VELLAYI POLICE STATION, KOZHIKODE- 673 011. 4 COMMISSIONER OF POLICE, KOZHIKODE- 673 001. 5 PRASAD, S/O.RAMAN, MEDAPARAMBATHU, PUTHIYAPPA, PUTHIYANGADI P.O., KOZHIKODE- 673 021. 6 UTHAMAN, S/O.KUNJIKANNAN, MEDAPARAMBATHU, PUTHIYAPPA, PUTHIYANGADI P.O., KOZHIKODE- 673 021. W.P.C.29869/18 2 7 GANESH, S/O.SURENDRAN, MEDAPARAMBATHU, PUTHIYAPPA, PUTHIYANGADI P.O.,KOZHIKODE- 673 021. BY ADVS. R1 TO R4 BY SRI. P.P. THAJUDEEN, GOVERNMENT PLEADER SRI.P.JERIL BABU SRI.SRINATH GIRISH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.29869/18 3

JUDGMENT Devan Ramachandran, J. The petitioner says that he is the licencee under the Government of Kerala for collection of gate entry charges, wharfage charges and landing charges at the Puthiyappa Fishing harbour for a period from 29.05.2018 till 25.05.2019. He has placed on record the licence agreement in substantiation of this assertion as Ext.P1 as also the order issued by the Executive Engineer, Harbour Engineering Division as Ext.P2. 2. The petitioner states that as per the licence conditions, he has remitted 14,05,006/- towards half of ₹ licence fee and a further amount of 2,81,000/- towards ₹ security deposit in addition to the applicable GST. He further says that in addition to this amounts he also has to incur the cost of cleaning the harbour premises, cost of electric energy and lighting in the harbour as also the salary to be paid to the staff and workers. As per the petitioner, he has already incurred heavy borrowings and that he was forced to take bank loans to pay the licence fee and his allegation is against respondents 5 to 7, who he says are “Lumpen” elements creating law and order problems at the Toll Gate and thus preventing him from carrying on the operations as a licencee. He alleges that these respondents constantly block the entry gate of the Toll Plaza with their vehicles and threaten the staff of the petitioner seeking that they be allowed entry inside the fishing harbour without paying the toll amount. He says that out of fear, these demands were being met for some time but that it is now become impossible for him to operate the licence when these persons demand entry into the fishing harbour without paying any toll amount. He, therefore, prays that the concerned police officers, namely respondents 3 and 4, be directed to afford adequate and effective protection to the Toll Plaza from respondents 5 to 7 and persons acting under them.

When this matter was considered by this Court on 04.10.2018, we had noticed the statement dated 26.09.2018 filed by the 4th respondent, Sub Inspector of Police, wherein the said authority has stated that if the petitioner-contractor is to charge at the rates permitted in law it will lead to a law and order situation and that such issues have been averted now only because he is collecting at the old rate. We had, therefore, directed the 2nd respondent, Executive Engineer of the Harbour Engineering Division, Puthiyappa, to consider whether they would be amenable to a reconsideration of the rates of the licence fee fixed against the petitioner and we see that an affidavit, dated 12.10.2018, sworn to by the said Authority, has been placed on record today. As per this affidavit, the 2nd respondent appears to take a stand that no concession in the licence fee is possible and maintains that the petitioner ought to have been aware of these “ground realities” before he had committed himself to payment of such licence fees. In effect, the stand adopted by the 2nd respondent is that the unrest in the harbour area caused by certain vested elements is a ground reality and that the petitioner must suffer such realities if he has to operate as a licencee.

The learned senior Government Pleader, appearing on behalf of the police authorities, submits that if any complaint is made by the petitioner with respect to obstruction to his lawful activities under Ext.P1 licence agreement, the police will certainly give him protection and he asserts that the police had been doing so in the past also. The learned Senior Government Pleader affirms that some demands had been made by certain residents of the area in question; and not in particular respondents 5 to 7, that the toll fees be reduced or that the people of the locality be allowed entry into the fishing harbour without being charged any toll fee. The learned Senior Government Pleader submits that if the petitioner is not amenable to these demands, he can certainly approach the police and that the police will give him all necessary protection for operating the Toll Plaza.

Sri.Srinath Girish, learned counsel who has entered appearance on behalf of respondents 5 to 7, submits that the allegations against his clients are completely baseless and he says that he does not understand why his clients have been hand-picked by the petitioner to be arrayed as respondents because, according to him, they have caused no obstruction to the functioning of the Toll Plaza as has been alleged. He says that he has instructions form his clients that there were certain law and order issues in the past, which were not caused by them but by certain other groups of persons, perhaps claiming reduction in the toll charges. He however, asserts that his clients have not and does not have any intention to cause any obstruction to the petitioner.

In the afore circumstances, and taking specific note of the submissions made before us by Sri.Srinath Girish and by the learned Senior Government Pleader, we deem it appropriate to order this writ petition and to direct the 3rd respondent-Sub Inspector of Police, Vellayil Police Station, Kozhikode, to ensure that the petitioner is able to carry on his activities as a licencee under Ext.P1 agreement, without any let or hindrance from the part of respondents 5 to 7 or any other persons acting under them. The police will ensure that law and order is constantly and always maintained; and further that there is no breach of peace and tranquillity on account of any activity at the hands of respondents 5 to 7 or any other person in the area.

Needless to say, if any complaint is preferred before the police by the petitioner regarding the attempt to commit or commission of any cognizable offence, by the respondents 5 to 7 or any one acting under them, the same shall be taken note of and appropriate action pursued in terms of law without any delay. P.R.RAMACHANDRA MENON JUDGE DEVAN RAMACHANDRAN DG JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 AOF THE LICENSE AGREEMENT NO.HED/EE/LA/1/2018-19 DATED 29.05.2018. EXHIBIT P2 AOF THE ORDER NO.HC/4160/2014 DATED 29.04.2018 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P3 AOF THE PAYMENT RECEIPT DATED 23.04.2018 EVIDENCING THE PAYMENT MADE BY THE PETITIONER. EXHIBIT P4 AOF THE LETTER DATED 02.06.2018 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P5 AOF THE REPRESENTATION DATED 08.06.2018 SUBMITTED BEFORE THE 3RD RESPONDENT. EXHIBIT P6 AOF THE REPRESENTATION DATED 22.08.2018 SUBMITTED BEFORE THE ASST. COMMISSIONER OF POLICE, KOZHIKODE. EXHIBIT P7 AOF THE LETTER DATED 02.08.2018 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT.