HOWRAH MILLS CO. LTD. AND ANR.versusMD. SHAMIM AND ORS.

A                   HOWRAH MILLS CO. LTD. AND ANR.
                                          V.

                            MD. SHAMIM AND ORS.

                                   MAY 12, 2006

B             [S.B. SINHA AND P.K. BALASUBRAMANYAN, JJ.]

         Constitution of India, 1950:

          Article 226-Writ petition-Po/ice protection-Jn respect of property
C   of a company-A proposal to sell away a portion of the company's land as
    a means to revive the industry was approved by the BlFR-Company owned
    vast extent of land out of which a portion was to be sold and the process
    for sale was at an advanced stage-Attempts were made by some persons
    to interfere with the possession of the company over the property-Writ
D   petition filed by company for necessary protection to the company to protect
     the property from unauthorized trespassers-Company agreed to meet the
    expenses for affording of such protection-High Court dismissed the writ
    petition-Correctness of-Held: This is a case where the State should be
    equal(v interested in seeing to it that the property was folly protected, until
     the scheme proposed by the BIFR is implemented and the revival of the
E    industry is ensured-Since the company had agreed to meet the charges of
    protection the same is fz.xed at Rs. 10,0001 per day so that too heavy a slice
     of the price of the land is not spent on this score-State directed to give
     requisite protection to the property of the company-High Court judgment
     set aside-Police Regulation, Bengal 1943--Calcutta Thika Tenancy
F    (Acquisition and Regulation) Act, 1981, Ss. 5 & 6.

          The appellant-company was before the Board for industrial and
    Financial Reconstruction (BIFR) for its reconstruction and a proposal
    to sell away a portion of its land as a means to revive the industry was
G   approved by the BIFR. The appellant-company owned a vast extent of
    land out of which a portion was to be sold and the process for sale was
    at an advanced stage. Attempts were made by the respondents to
    interfere with the possession of the appellants over the property and
    inspite of requests in that behalf, the police authorities did not render
H   the necessary help to the appellants.
                                         692
              HOWRAH MILLS CO. LTD. v. MD. SHAMIM                      693

      The appellants, therefore, filed a writ petition before the High         A
Court for necessary protection to the appellants to protect the property
from unauthorized trespassers. The appellants also prayed 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. A Single Judge of the High
                                                                               B
Court granted an interim order of protection. The respondent-State had
all along supported the cause of the appellants for the rehabilitation of
the industrial undertaking before the BIFR.

     Respondents 1 to 3, claiming to be assignees, of undivided shares         C
from a co-owner, filed an appeal before the Division Bench of the High
Court contending that disputed and intricate questions of title were
involved in the writ petition and, therefore, the Single Judge could not
have exercised jurisdiction under Article 226 of the Constitution of
India to pass an interim order of protection. The Division Bench set           D
aside the interim direction of the High Court. Hence the appeal.

     Allowing the appeal, the Court

       HELD: 1. It is not possible to accept the contention of respondents
 1 to 3 that since they are raising some claim over a fraction of the          E
 property, no relief can be granted to the appellants. At best, respondents
 1 to 3 are assignees of undivided shares from a co-owner, and prima
facie, their rights, if any, are 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,       F
 it will only be to their advantage. Then, they can work out their rights
 without obstruction. (698-E-G)

      2. 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            G
is ensured. 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 lawless elements and unauthorized persons. Going by the Regulations
666 and 669 of the Police Regulations, Bengal 1943, it may even be             H
    694                 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.


A   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 of protection was extended to the appellants from the
B   filing of the writ petition till this date only on that basis. Therefore, 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. (698-G, 699-A-DI


c         3. However, 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.
    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
D   six thousand 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. (699-D, FJ

         4. Respondents 4 to 7 are directed to continue to give the requisite
E   protection to the appellants in respect of the property of the first
    appellant-company and also to give the necessary protection to enable
    the company to repair or renovate its boundary walls as also for
    construction of the separate boundary walls for the plot of land
    proposed to be sold under the supervision of the BIFR. (700-A, BJ
F
         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2639 of
    2006.

          (arising out of SLP (C) No. 21979 of 2004)

G        From the Judgment and Order dated 11. I0.2004 of the High Court of
    Calcutta in MAT No. I080 of 2004 in CAN No. 4393 of 2004.

          Mukul Rohtagi, Utpal Majumdar, Sanjeev Sen, Dipak Kumar Jena,
    Pabitra Kumar Biswal, Ghanshyam Joshi and Mrs. Minakshi Jang (Ghosh)
H   for the Appellants.
          HOWRAH MILLS CO. LTD. v. MD. SHAMIM [BALASUBRAMANYAN, J.]           695


-           Tarun K. Roy, R.F. Nariman and Anupam Chatterjee, Tara Chandra
    · Shanna, Ms. Neelam Shanna, Abhijat P. Medh, Rauf Rahim and Mahmud
      for the Respondents.
                                                                                      A



         The Judgment of the Court was delivered by

          P.K. BALASUBRAMANY AN, J. : Leave granted.                                  B

           I. 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         c
    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
                                                                                      D
    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       E
    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.
                                                                                      F
    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       G
    perfonn 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        H
    696                  SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A   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
B   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
c   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
D    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
E   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
F
    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
G   being granted may be continued until the pmtion 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
H   appellants to erect the compound wall separating the plot eannarked for sale
       HOWRAH MILLS CO. LTD. v. MD. SHAMIM [BALASUBRAMANYAN, J.]               697

  so as to separate it from the rest of the property and protection may also be        A
· 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
                                                                                       B
  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 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      c
  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 I to 3, the appellants before the Division Bench,
   argued that as disputed questions of title and possession were inyolved, it
                                                                                       D
   was not appropriate for the Court to exercise its jurisdiction under Article
. 226 of the Constitution oflndia 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         E
   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 I 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                   F
   (Acquisition and Regulation) Act, 1981, then it will be a complete vesting
   ofall 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 offact, the State had all along supported the       G
   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 I to 3 herein, far. Even otherwise, if there is a Thika tenancy
   in favour of the appellants, it would not be open to respondents I to 3 herein      H
    698                  SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A   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
B   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
c   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
D   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 provided the charges are paid and they are continued to be paid
    as demanded by the State.

E         8. We do not see much force in the submission for counsel for
    respondents I 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 I to 3 herein are assignees ofundivided shares from a co-owner,
    and primafacie, their right, if any, is to sue for partition. Primafacie, they
F   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
    obstmction.

          9. It appears to us that this is a case where the State should be equally
G 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
H    State of West Bengal to readily respond to a request for protecting the
      HOWRAH MILLS CO. LTD. v. MD. SHAMIM [BALASUBRAMANYAN, J.]               699

property. from trespassers so as to ensure that the revival of a sinking industry     A
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
                                                                                      B
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       c
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.
                                                                                      D
       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 BlFR 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                E
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                 F
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. I0,000 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 of2006 within       G
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             H
    700                  SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A   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 g,ive necessary protection to enable the company to
B   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
c   before us that the State would perform its duties in the matter of maintenance
    ef law and order and it shall provide protection to the property of the first
    appellant - 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
D   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.
E
         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.

    v.s.s.                                                       Appeal allowed.