Chulliyodan Muhammed Anzari vs. Circle Inspector Of Police - Kerala High Court, 20 March 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR.JUSTICE S.V.BHATTI WEDNE AY,THE 20TH DAY OF MARCH 2019 / 29TH PHALGUNA, 1940 WP(C).No. 5724 of 2019 PETITIONER/S: CHULLIYODAN MUHAMMED ANZARI AGED 45 YEARS S/O ABDUL AZIZ, CHITARIPARAMBA, PANCHAYAT, P.O.MANANTHERY, VALIYAVELICHAM ROAD MANANTHERYVILLAGE, KANNUR, KERALA 670 650 BY ADVS. SRI.T.P.SAJID SRI.C.KHALID RESPONDENT/S: 1 CIRCLE INSPECTOR OF POLICE KUTHUPARAMBA POLICE STATION, KUTHUPARAMBA-670 643. 2 THE SUB INSPECTOR OF POLICE, KANNAVAM POLICE STATION, KANNAVAM, 670 707. 3 LORRY OWNERS ASSOCIATION NEAR ULLIYIL SUB REGISTRY, KEEZHOOR, IRITTY 670 703, REPRESENTED BY ITS PRESIDENT KARUNAKARAN. 4 SWATHANDRA LORRY OWNERS' ASSOCIATION, VALIYAVELICHAM, KUTHUPARAMBA 670 643,REPRESENTED BY ITS PRESIDENT BIJU. BY ADVS. SRI.K.V.PAVITHRAN SRI.P.SAJU FOR R4 SHRI.GANESAN M. SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL OTHER PRESENT: SR.GP SRI.P.P.THAJUDEEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P(C) No.5724/19 2 JUDGMENT P.R. Ramachandra Menon, J. The petitioner, who is a trader of hill produces including coconut, cashew, rubber etc., is aggrieved with the forceful obstruction stated as being caused by the respondents 3 and 4 in engaging the lorries of choice of the petitioner to transport the items collected from different farmers.

Heard Sri.C.Khalid, the learned counsel for the petitioner; the learned counsel appearing for the 3rd respondent and Sri.P.Saju, the learned counsel appearing for the 4th respondent

Union,

besides

the learned Sr.Government Pleader who appeared for the respondents 1 and 2. 3. The sequence of events narrated in the writ petition shows that the petitioner has obtained necessary registration certificate from

W.P(C) No.5724/19 3 the competent authorities as borne by Ext.P1 under the Central Goods and Services Tax Act, 2017. It is stated that the petitioner has been carrying on the business strictly in conformity with the relevant provisions of law. There was an instance of forceful obstruction earlier, when the petitioner was constrained to move this Court by filing W.P(C) No.16019/2011, where Ext.P2 verdict was passed by this Court granting police protection. It is contended that the petitioner is having every right to engage the lorries of his choice to transport the goods.

The obstruction from the part of the respondents 3 and 4 is based on a claim mooted by them stating that, if at all the petitioner wants to transport goods, the petitioner will have to depend upon them by placing requisition and that they will identify the lorries to be deputed. The learned counsel also submits that unconscionable transportation charges are being

W.P(C) No.5724/19 4 demanded by the said respondents, which cannot be acceded to by the petitioner. When similar obstruction was there from the part of some association/persons, similarly situated persons had approached this Court by filing W.P(C) Nos.16019/2011

and 34243/2018,

where interference was made by Exts.P2 and P3 judgments. The learned counsel submits that the petitioner is entitled to have similar reliefs and hence the writ petition, particularly since the request made by the petitioner before the police did not turn to be fruitful.

On receipt of notice issued by this Court, the 4th respondent has appeared and filed a counter affidavit. Paragraphs 5 and 7 are relevant and hence we find it appropriate to reproduce them below:

“5. The averments in the 5th paragraph of the writ petition are false and hence denied. It is submitted that this respondent never obstructed the right of the petitioner to

W.P(C) No.5724/19 5 carry on his business by hiring lorries of his choice. As alleged in the petition there is no self imposed arbitrary rule on the petitioner by violating his fundamental rights. 6. …........................................

It is submitted that the turn system is a self imposed regulation among the lorry owners/operators who are co-operating with the system. The 4th respondent has never stood in the way of any road carriers not co- operating with this system, going out of turn and taking loads. It is up to the petitioner/Common Carrier/anybody to engage any lorry of their choice to transport their goods. The above system is operational only for the members of the society and the lorry owners/operators who have accepted to co- operate with this system. The turn system is implemented after detailed discussion with various authorities and stakeholders for administrative ease and to avoid disputes regarding service of carriage of goods.”

The learned counsel for the 4th respondent submits that the said respondent has not caused any forceful obstruction and that the petitioner is free to engage any lorry of

W.P(C) No.5724/19 6 his choice, by way of hire or otherwise. The learned counsel however submits that the petitioner is not entitled to get any relief, as he is pursuing the transportation business contrary to the relevant provisions of 'the Carriage by Road Act 2007'.

The learned counsel for the 3rd respondent submits that the said respondent has also not caused forceful obstruction to the business of the petitioner in any manner and that the petitioner is free to engage lorries of his choice. Virtually, the said stand is similar to the stand taken by the 4th respondent in the counter affidavit.

After hearing both the sides, we find that the petitioner has established a case to call for interference. If the 4th respondent is having any grievance with regard to the alleged violation of any provisions of law, it is open for the petitioner to pursue appropriate course

W.P(C) No.5724/19 7 of action by contacting the competent Authorities/Court, in accordance with law. In so far as the said respondent has conceded in paragraphs 5 and 7 of the counter affidavit that no forceful obstruction has been caused by the said respondent with regard to the business of the petitioner in procuring the hill produces and engaging the lorry service of his choice for transportation, the petitioner is entitled to succeed. The submissions made by the learned counsel for the parties are recorded. If at all there occurs any forceful obstruction with regard to the hiring of lorries of the choice of the petitioner by the respondents 3 and 4 or anybody under them, and once the same is brought to the notice of police, immediate and adequate measures shall be taken by the police to abate such forceful obstruction, maintaining the law and order situation. It is also made clear that this

W.P(C) No.5724/19 8 will not stand in the way of the private respondents herein to challenge the acts and deeds of the petitioner, if there is any violation in accordance with law, of course, by approaching the competent authorities/Court in this regard. The writ petition stands disposed of. P.R.RAMACHANDRA MENON JUDGE S.V.BHATTI JUDGE okb //// P.S. to Judge

W.P(C) No.5724/19 9 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE GST REGISTRATION CERTIFICATE DATED 7.2.2019 ISSUED TO THE PETITIONER EXHIBIT P2OF THE JUDGMENT DATED 12.6.2011 PASSED BY THIS HON'BLE COURT IN WPC NO 16019/2011 (B) EXHIBIT P3OF THE JUDGMENT DATED 26.10.2018 PASSED BY THIS HON'BLE COURT IN WPC NO 34243/2018 EXHIBIT P4OF THE COMPLAINT DATED 10.2.2019 SUBMITTED BY THE PETITIONER BEFORE RESPONDENTS 1 & 2. RESPONDENTS' EXHIBITS: EXT.R4(A): BYE LAW OF THE ASSOCIATION OF R4 EXT.R4(B):OF THE RELEVANT PAGE OF THE MINUTES DTD.23.7.18 EXT.R4(C): TUE COPY OF THE REGISTER OF TURN SYSTEM