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2006(4) Supreme 308
SUPREME COURT OF INDIA
(From Calcutta High Court)
S.B. Sinha & P.K. Balasubramanyan, JJ.
Howrah Mills Co. Ltd. & Anr.—Appellants
versus
Md. Shamim & Ors.—Respondents
Civil Appeal No. 2639 of 2006
(Arising out of SLP (C) No. 21979 of 2004)
With
I.A. No. 4/2006 and I.A. No. 5/2006
Decided on 12-5-2006
Counsel for the Parties :
For the Appellants : Mukul Rohtagi, Sr. Advocate, Utpal Majumdar, Sanjeev Sen, Dipak Kumar Jena, Prabitra Kumar Biswal, Ghanshyam Joshi and Mrs. Minakshi Jang (Ghosh), Advocates.
For the Respondents : Tarun K. Roy, R.F. Nariman and Anupam Chatterjee, Sr. Advocates, Tara Chandra Sharma, Ms. Neelam Sharma, Abhijit P. Medh, Rauf Rahim and Mahmud, Advocates.
Held : We do not see much force in the submission for counsel for respondents 1 to 3 that since they are raising some claim over a fraction of the property, no relief can be granted to the appellants herein. At best, respondents 1 to 3 herein are assignees of undivided shares from a co-owner, and prima facie, their rights, if any, is to sue for partition. Prima facie, they are not entitled to enter the property or to interfere with the possession of the appellants. If the property is protected from trespassers meanwhile, it will only be to their advantage. Then, they can work out their rights without obstruction. It appears to us that this is a case where the State should be equally interested in seeing to it that the property was fully protected, until the scheme proposed by the BIFR is implemented and the revival of the industry is ensured. It is said that six thousand workers are involved and their welfare, along with the welfare of the creditors and of the management, depends upon the scheme being put through. One would have expected the State of West Bengal to readily respond to a request for protecting the property from trespassers so as to ensure that the revival of a sinking industry is achieved and its workers are protected. Even otherwise, in a situation like the present, it is the duty of the police of the State to give necessary protection to the struggling industry to tide over the crises and protect its property from interference by law less elements and unauthorized persons. Going by the Police Regulations, Bengal 1943, Regulations 666 and 669, it may even be possible to say that the protection in such circumstances should be afforded even without insisting on payment by the private party seeking protection. But in this case, the appellants have approached the Court praying for protection expressing their readiness to meet the charges for such protection on the basis that they are liable to pay such charges. In fact, the order for protection was extended to the appellants from the filing of the writ petition till this date only on that basis. Therefore, we are of the view that it would not be appropriate to hold, on the facts of this case that the appellants have no obligation at all to meet the costs of the protection given to them by the police.(Paras 8 and 9)
At the same time, we think that only a reasonable amount should be fixed so that the endeavour made to revamp the industry is not frustrated by too heavy a slice of the price of the land to be sold under the supervision of the BIFR for the resurrection of the industry being spent on this score. It is no doubt true that the appellants had agreed to pay a sum of Rs.16,413/- per day for the protection.(Para 10)
Since the protection for the property from trespassers is also to ensure to the benefit of the industry as a whole including its workforce of about six thousand, we think that a sum of Rs. 10,000/- per day for the entire period for which the appellants have not paid would be adequate compensation to the State. We, therefore, direct the appellants to pay the entire arrears calculated at the rate of Rs. 10,000/- per day for the entire period set out in I.A. No.4 of 2006 within a period of two months from this date. The appellants would also be liable to pay at the rate of Rs. 10,000/- per day from the last date referred to in I.A.No. 4 of 2006 till this date within that period and will continue to pay the said sum per day from today till the plot to be sold is separately demarcated and bounded and boundary of the balance property repaired or rebuilt. The current payments have to be made by the appellants at the rate of Rs. 10,000/- per day, once in 15 days, starting from today.(Para 10)
JUDGMENT
P.K. Balasubramanyan, J.—Leave granted.
1. The appellants approached the High Court of Calcutta praying for the issue of a writ of mandamus directing the State and its police authorities to give the appellants the necessary protection in respect of the property of the first appellant, the Howrah Mills Co. Ltd. The appellants pointed out that the company was before the Board for Industrial and Financial Reconstruction (in short “the BIFR”) for its reconstruction and a proposal to sell away a portion of its land as a means to revive the industry, has been approved by the BIFR, especially since the State of West Bengal had also agreed before it to such a course. The company owned a vast extent of land out of which a portion was to be sold and the process for sale is at an advanced stage. Meanwhile, attempts were being made to interfere with the possession of the appellants over the property and in spite of requests in that behalf, the police authorities were not rendering the necessary help to the appellants. The company employed about six thousand workers and a revival of the company, which was still working, would be for the benefit of such a work force also and it was all the more reason for the respondents to give the necessary protection to the appellants to protect the property from unauthorized trespassers. There was also a prayer for affording protection for the purpose of repairing the compound wall of the property and for putting up a separate boundary wall protecting the portion to be alienated. The appellants offered that they would meet the expenses for the affording of such protection.
2. While entertaining the writ petition, a learned Single Judge of the High Court of Calcutta granted an interim order of protection. The learned Judge found that there was prima facie failure on the part of the police to perform their duty and in the circumstances it was just and proper to issue a direction to the Superintendent of Police, Howrah to ensure that the officer in charge of the Shibpur Police Station strictly complied with the direction given to him to see to it personally that no one, in any manner, stepped into the property in question, without specific permission being granted by the appellants. The writ petition was directed to be listed for final hearing.
3. An appeal was filed by three persons claiming to be assignees of a fraction of a share from a fraction shareholder challenging the direction issued by the learned Single Judge on a claim that they were co-owners of the property and hence were entitled to exercise rights as such and their right to give permission for use of the property cannot be interfered with, that too, by a direction in a writ petition seeking a mandamus for what can be called police protection. They contended that intricate questions of title and right over the land were involved and when it was so, the Single Judge or the High Court could not exercise jurisdiction under Article 226 of the Constitution of India to issue a direction like the one issued by the learned Single Judge purporting to protect the disputed rights of the writ petitioners. The Division Bench without paying proper attention to the circumstances obtaining in the case and the need to protect the property in the interests of one and all, set aside the order of the learned Single Judge on the view that disputed questions were involved and hence no such direction as the one given by the learned Single Judge could have been granted. The interim direction of the learned Single Judge was, thus, set aside and the prayer for interim relief was rejected.
4. The appellants challenged this order of the Division Bench in this Court and while directing the listing of the case, this Court stayed the order of the Division Bench. Subsequently on 1.11.2004 this Court issued notice, continued the interim order of stay of operation of the judgment of the Division Bench of the High Court and directed that the police protection sought fo
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