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CASE NO.: Appeal (civil)  2639 of 2006

PETITIONER: HOWRAH MILLS CO. LTD. & ANR.

RESPONDENT: MD. SHAMIN & ORS.

DATE OF JUDGMENT: 12/05/2006

BENCH: S.B. SINHA & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T (ARISING OUT OF S.L.P. (C) NO.21979 OF 2004) [with I.A. No. 4/2006 and I.A. No. 5/2006]

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

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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 leaned 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  for by the appellants would be given at the cost of the  appellants.   Thus, the protection which was granted  pursuant to the direction of the learned Single Judge  continued, pursuant to the order of this Court.   The  position now is that the protection is now being offered to  the appellants on their liability to pay the costs for such  protection.

5.              Learned senior counsel for the appellants  submitted that the protection being granted may be  continued until the portion of the property directed to be  sold by the BIFR is sold and the purchaser put in  possession and the industry is in a position to move ahead  in full steam with the purchase price that will be available  to it for such resurrection.   Counsel further submitted  that a direction may be issued to the police to grant  protection to the appellants to erect the compound wall  separating the plot earmarked for sale so as to separate it  from the rest of the property and protection may also be  ordered for enabling the appellants to repair and renovate  the boundary of the property of the company.   Counsel  also pointed out that the appellants have filed I.A. No.6 of  2005 praying that they may not be compelled to pay the  astronomical sums claimed by the police department  towards the charges for protection given thus far.    Counsel submitted that it was in the interest of everyone,  including the six thousand workers and the economy of  the State, to have the working of the industry fully revived  and in that context, the State had also a duty to ensure  that the scheme before the BIFR was worked out under

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the supervision of the BIFR.   Counsel pointed out that if  the appellants are compelled to pay huge sums as costs of  protection as demanded by the State, substantial portion  of the proceeds of sale of a portion of the property  permitted to be sold with the consent of the State, would  be dissipated in such costs and there would be no  adequate funds available for revival of the industry fully.   In answer, Mr. R.F. Nariman, learned Senior Counsel for  Respondents 1 to 3, the appellants before the Division  Bench, argued that as disputed questions of title and  possession were involved, it was not appropriate for the  Court to exercise its jurisdiction under Article 226 of the  Constitution of India to protect the alleged rights of the  appellants by issuing a writ of mandamus.  Counsel  further raised a contention that the appellants are, at  best, Thika tenants and the appellants have no rights over  the land, the same having vested in the Government and  their rights were confined to the super structures.   It  appears that such a contention was not raised earlier.    But even assuming that such a contention can be looked  into by us, the position would be that so long as the Thika  tenancy continues, respondents 1 to 3 as alleged  assignees of fractional title in the property, would have no  right to interfere with the possession of the property.  If  there is a vesting under Sections 5 and 6 of the Calcutta  Thika Tenancy (Acquisition and Regulation) Act, 1981,  then it will be a complete vesting of all rights and the  rights of the landlord would also stand vested in the State.   We may notice that Mr. Tarun K. Roy, learned Senior  Counsel appearing for the State of West Bengal submitted  that the State had not made any claim of right under the  Thika Tenancy Act, no such claim was put forward before  BIFR also and that, as a matter of fact, the State had all  along supported the cause of the appellants for the  rehabilitation of the industrial undertaking before BIFR  and the sale of a portion of the land proposed to be sold  under the supervision of the BIFR.  This argument,  therefore, cannot carry respondents 1 to 3 herein, far.    Even otherwise, if there is a Thika tenancy in favour of the  appellants, it would not be open to respondents 1 to 3  herein to interfere with the possession or right of the  appellants so long as the tenancy continues.   In  purported exercise of their fractional right in reversion,  they cannot seek to interfere with the possession of the  Thika tenant.   This argument, therefore, deserves to be  overruled.

6.              Learned counsel further submitted that in any  event respondents 1 to 3 herein were disputing the title  and possession claimed by the appellants and were setting  up rights in themselves including a claim of possession  over portions of the property and in such a situation, a  direction for police protection should not or could not be  granted.   Learned counsel reiterated the submissions  made before the Division Bench of the High Court and  accepted by that Court.

7.              On behalf of the State of West Bengal, learned  counsel submitted that the appellants have not paid even  the agreed charges for grant of protection which they had  agreed to pay.  Learned counsel pointed out that earlier  and before this Court also the appellants had agreed to  pay at the rate of Rs.16,413/- per day and the amount is  due from 24.12.2004 till date.   Counsel submitted that  the State would be willing to give necessary protection

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provided the charges are paid and they are continued to  be paid as demanded by the State.   8.              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 right, 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.  

9.              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.

10.             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.  It is seen from I.A.  No.4 of 2006 filed by respondents 4 to 7 in the appeal that  they have now computed the amount payable at  Rs.9,195/- per day from 1.10.2005 till this date and for  the earlier period between 31.1.2005 to 30.9.2005 they  had proposed to claim a sum of Rs.15,678/- per day  though for an earlier period between 24.12.2004 and  30.01.2005 they have proposed to claim @ Rs.41,520/-  per day.   Since the protection for the property from  trespassers is also to enure 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

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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. 11.             Respondents 4 to 7 are directed to continue to  give the requisite protection to the appellants in respect of  the property of the first appellant - company and also to  give necessary protection to enable the company to repair  or renovate its boundary walls as also for construction of  separate boundary walls for the plot of land proposed to  be sold under the supervision of the BIFR. 12.             Mr. Roy, learned Counsel for the State has  categorically submitted before us that the State would  perform its duties in the matter of maintenance of law and  order and it shall provide protection to the property of the  first appellant \026 Company in discharge of the statutory  duties of the State and the Police.  In this context, the  Authorities may consider whether it is necessary to engage  a large force of policemen at this stage and consider  posting only such number of personnel as may be found  necessary for the protection of the property.  That would  enable a reduction in the cost of protection to be paid by  the appellants and the State would be free to reduce the  charges payable by the appellants for protection of the  properties.  In the light of the directions as above and the  observations, I.A. Nos. 4 and 5 of 2006 will stand disposed  of.   13.             The appeal is allowed in the above manner and  the Interlocutory Applications are disposed of in the light  of the directions contained above.  There will be no order  as to costs.