Calcutta High Court (Appellete Side)
Pg (Birendra Singh vs State Of West Bengal & Ors.) on 4 May, 2016
Author: Dipankar Datta
Bench: Dipankar Datta
1
16 04.05.2016 W.P.7362(W) of 2016
pg (Birendra Singh vs. State of West Bengal & Ors.)
Mr. Debjit Mukherjee
Ms. Susmita Chatterjee ............for the petitioner
Mr. Sakya Sen
Mr. Tapas Ballav Mondal...........for the State
The petitioner instituted a suit for eviction of
a licensee i.e. the private respondent. The suit was
decreed by the learned civil Judge on contest. The private respondent was directed to quit and vacate the suit property within 90 days, failing which the petitioner was granted liberty to have the decree executed through Court according to law. The decree passed by the trial court was affirmed by the first appellate Court as well as by this Court in second appeal.
The private respondent did not deliver possession of the decretal property in favour of the petitioner despite dismissal of the second appeal resulting in the petitioner levying execution. The process server of the Court, however, failed to deliver possession of the decretal property in favour of the petitioner on January 15, 2008 due to resistance offered by the private 2 respondent. This resulted in the petitioner making an application for police help before the executing court. He prayed that one sub-inspector of police, one armed assistant sub-inspector of police and four armed constables may be directed to be deputed for assisting the process server to facilitate execution of the decree by delivery of possession of the decretal property in favour of the petitioner. Such application was considered by the executing court and by an order dated December 06, 2014, the Superintendent of Police, Hooghly was requested to let the Court know within April 06, 2015 "the number of male and female police forces alongwith their costs involved therein, to be required, for executing the decree passed by this court and submit a report along with the possible date for rendering the police help to execute the decree......."
In pursuance of such order, the superintendent of police submitted a report dated February 20, 2016 contained in memo dated February 26, 2016. The relevant portion of the report of the superintendent reveals as follows:
".........During discreet enquiry it is assessed that during the eviction there is very likelihood of political problem over the issue of delivery of possession resulting in breach of peace and upsurge of 3 law and order troubles. As per available report the requirement of force for this purpose is mentioned herein below.
Requirement of Officer and men for deployment.
Ten(10) S.I.s, ten (10) A.S.I.s., forty (40) Constables, twenty five (25) Lady Constables.
Under the circumstances the decree holder may kindly be directed to deposit an amount of Rs. 94,075/- (Rupees ninety four thousand seventy five only) for the cost of required Police help as per guidelines of Finance Department........"
The petitioner is aggrieved by the assessment of costs made by the superintendent for deputing 85 nos. of police personnel.
This Bench has heard Mr. Mukherjee, learned advocate for the petitioner and Mr. Sen, learned advocate for the State. Despite service of notice, the private respondent has not appeared.
The issue raised in this writ petition is covered by the decision of this Bench reported in 2007 (1) CLJ (Cal.) 383 : Anil Kumar Maity vs. State of West Bengal & Ors. It was held therein that a decree holder need not bear costs for police aid, if police help is required arising out of a situation contemplated in clause
(b) of rule 208(1) of the Civil Rules and Orders of the High Court at Calcutta; however, if the situation contemplated in clause (a) emerges, the decree holder would be 4 required to deposit costs.
In terms of note 1 appended to rule 208, it is the duty of the executing court to decide in each case under which category the claim falls i.e. whether police aid should be given under clause (a) above, in which case, the party has to deposit necessary costs or under clause (b) in which case, no costs could be charged.
In the present case, the executing court has not given any decision as to whether the case falls under clause (a) or clause (b). However, having regard to the report of the superintendent, extracted supra, there cannot be any two opinions that requirement of 84 number of police personnel to deal with possibility of breach of peace arising out of likely political problem over the issue of delivery of possession can never fall under clause (a).
In that view of the matter, the petitioner is not liable to pay Rs.94,075/- for deployment of 85 nos. of police personnel. However, the petitioner would be liable to pay costs for one inspector of police, two sub- inspectors of police, three male constables and two female constables, who shall be deputed for assisting the process server to deliver possession of the decretal 5 property in favour of the petitioner towards execution of the decree. If any other/further number of police personnel is required to be deployed to tackle the law and order situation, the petitioner shall not be liable to bear any cost.
The executing court is requested to call upon the superintendent to assess police costs in the light of this order and to fix up a date when police personnel in terms of this order shall be deployed by the superintendent of police. The costs shall be assessed by the superintendent as early as possible but not later than two weeks from date of the request to be made by the executing court.
In the event the petitioner makes payment of the costs to be assessed for deployment of 8 nos. of police personnel as above, the superintendent shall depute such number of police personnel, as may be required on the date to be fixed by the executing court.
The writ petition stands disposed of with the aforesaid directions. There shall be no order as to costs.
Needless to observe, this order shall not fetter the jurisdiction of the executing court to pass such other or further order for recording satisfaction of the decree. 6
Urgent photostat certified copy of this order, if applied for, be furnished to the parties expeditiously.
(DIPANKAR DATTA,J.)