Calcutta High Court
Anil Kumar Maity vs State Of West Bengal And Ors. on 16 January, 2007
Equivalent citations: 2007(2)CHN124, 1(2007)CLT691
Author: Dipankar Datta
Bench: Dipankar Datta
JUDGMENT Dipankar Datta, J.
1. This is a rare case where the facts are such that despite the prayers of the petition not being appropriately framed, I am inclined to grant relief to the petitioner because he has been subjected to grave injustice. I proceed to grant relief to the petitioner keeping in mind that Article 226 of the Constitution ex facie confers a wide power on the High Courts to reach injustice wherever it is found [see Dwarkanath v. I.T.O. , followed in Shri Anadi Mukta Sadguru S.M.V.S.J.M.S. Trust v. V.R. Rudani ] and that if foundation for grant of a particular relief is laid and a party is entitled to relief on merits, an application cannot be thrown out simply on the ground that the proper writ or direction has not been prayed for and it would be permissible for the Writ Court to mould the relief for ends of justice.
2. Certain basic facts are required to be noted for appreciating the plight of the petitioner.
3. After being involved in a gruelling litigation for eleven long years, the petitioner succeeded in the suit instituted by him (T.S. No. 337 of 1987) before the learned Civil Judge (Junior Division), 1st Court at Barasat, North 24-Parganas, in which he prayed for eviction of his tenant Bhola Nath Mondal (the defendant) and recovery of possession of the suit property. During pendency of the suit, Bhola Nath died. His legal heirs were brought on record who contested the suit as defendants. The suit was decreed in part, on contest, on 4.8.98. The defendants were directed to vacate the suit premises in favour of the petitioner within three months from date failing which the petitioner was given liberty to execute the decree through Court.
4. Since the defendants did not vacate the suit property, the decree was put into execution by the petitioner on 30.6.99 giving rise to T. Ex. Case No. 5 of 1999. Despite orders passed by the Executing Court, possession of the suit property could not be handed over to the petitioner owing to resistance put up by the judgment-debtors. On an application under Order 21 Rule 97 of the Code of Civil Procedure filed by the petitioner praying for police help, Misc. Case No. 5 of 2004 was registered. The Executing Court by order dated 17.7.04 was pleased to allow the Misc. Case ex parte and passed an order directing issuance of a letter to the Superintendent of Police, North 24-Parganas (hereafter the said S.P.) for assessment of cost for providing police help involving an Inspector, three constables and two lady constables and to report by 7.9.04. This order failed to activate the said S.P. and consequently the petitioner had to again approach the Executing Court with a petition on 7.12.05 for issuance of an order on the said S.P. as and by way of a reminder. By an order dated 7.12.05, the Executing Court directed issuance of reminder to the said S.P. and the case was adjourned till 19.1.06 awaiting a reply.
5. The woes of the petitioner persisted since the said S.P. remained unmoved. The petitioner was compelled to approach this Court in its civil revisional jurisdiction by filing an application under Article 227 of the. Constitution of India. By an order dated 3.8.06, the said application was disposed of by this Hon'ble Court with the following order:
It is really unfortunate that execution of a decree of Civil Court has been frustrated by the inaction and indifference on the part of the Superintendent of Police, 24-Parganas (North).
In disposing of the revisional application, direction is given to the Superintendent of Police, 24-Parganas (North) to submit the estimated cost of police help within seven days from the date of communication of the order, failing which appropriate action will have to be taken against Superintendent of Police, 24-Parganas (North).
It is made clear that once the estimated cost is given, the Executing Court shall take all possible steps to have the decree executed without any further loss of time.
Pursuant to communication of the aforesaid order of this Court, the said S.P. was ultimately activated and by his letter dated 28.8.06, addressed to the Executing Court, replied as follows:
In compliance with your memo cited under reference, the undersigned writes to inform you that the following number of police person will be required for the above purpose.
Inspector: 1(one) SI: 4(four) ASI: 5(five) Constable: 20(twenty) Lady Constable: 6 (six)
The total cost of the said police personnel arrived at Rs. 11,882/- (Rs. Eleven thousand eight hundred eighty-two) only. The petitioner/decree holder may kindly be directed to deposit the amount to the Treasury by Treasury Challan under head of A/C 0055-00-104-001-13.
Further action in the matter will be taken from this end on receipt of the copy of the Treasury Challan depositing the amount.
6. Feeling aggrieved by the aforesaid communication containing assessment of cost for deputing police personnel, the petitioner has approached this Court once again (now invoking its Constitutional Writ Jurisdiction), inter alia, with prayer for a direction upon the said S.P. to comply with the order dated 17.7.04 passed by the Executing Court in connection with Misc. Case No. 5 of 2004 and to assess the cost for deployment of police personnel in terms thereof. By way of interim relief, it has been prayed for that the said S.P. be directed to assess police cost for delivery of possession of the suit property only and not for maintenance of law and order.
7. The writ petition was moved on notice to the State as well as to the private respondents (defendants in T.S. No. 337 of 1987). Although the State was represented by learned Advocates, the private respondents chose not to appear.
8. By an order dated 22.12.2006, the said S.P. was directed to file a report on 5.1.07 clarifying therein the basis of assessment of costs for deployment of police personnel as indicated in the said letter dated 28.8.06 and further to indicate as to why and under what circumstances it was felt that 36 police personnel would be required for delivery of possession of the suit property involved in T. Ex. Case No. 5 of 1999.
9. In purported compliance with the aforesaid order, a report dated 2.1.07 was filed by the said S.P. through his Advocate, on 5.1.07. I perused the report, and called upon the parties to argue their respective cases. Learned Advocates for the petitioner and the State were heard. None, however, appeared on behalf of the private respondents on this date too. I concluded hearing and reserved my judgment.
10. For proper adjudication of the issue raised in this petition, relevant portions of the report filed by the said S.P. are extracted below:
For effective compliance of the solemn order dated 03.08.2006 of Hon'ble High Court, Calcutta, I directed the Officer-in-Charge, Deganga Police Station to enquire and submit an assessment report vide this office memo No. 5953/C/CA-I dated 22.08.2006.
In compliance with the order of the Hon'ble High Court, Calcutta the Officer-in-Charge, Deganga Police Station enquired into the matter personally and submitted a report assessing the strength offeree required for the purpose.
As regards the assessment offeree and the cost of assessed force this is to submit that ld. Civil Judge, Junior Division vide his order No. 150 dated 25/08/2004 estimated the police strength for help in connection with T.Ex No. 5/99 as that of 1 Sub-Inspector of Police, 3 Constables and 2 Lady Constables. The total cost of this assessment is Rs. 1988/- (Rupees One thousand nine hundred eighty-eight only).
However, as per report submitted by the Officer-in-Charge, Deganga PS, who has enquired into the matter personally regarding probable strength of police required in connection with the abovementioned T.Ex Suit is 1(one) Inspector, 4(four) Sub-Inspectors of Police, 5 (five) Asstt. Sub-Inspectors of Police, 20 (twenty) Constables and 6 (Six) Lady Constables. The total cost of this strength is Rs. 11,882/-.
In compliance with the order of the Hon'ble High Court, Calcutta the probable cost of the revised estimate was intimated to Id. Civil Judge, Junior Division, 1st Class, Barasat vide this office Memo No. 6404/E/CA-I dt. 28.8.2006.
The Officer-in-Charge, Deganga Police Station was specifically asked to submit his assessment in connection with eviction and he has submitted the following report:
With due respect I beg to report that after getting the abovenoted memo, from your end I enquired the matter personally. During such enquiry it could be ascertained that the concerned room (15 ft. x 10 ft) facing Haroa Road on East is closed since long and a Title Suit Vide TS No. 337 of 1987 is sub-judice in the Court of Id. Civil Judge, Barasat. It was also revealed that one Bhola Nath Mondal, son of late Panchanan Mondal of Vill. Dhanyakuria, P.S. Basirhat and A/P of Debalaya P.S. Deganga acquiring the verandha of that room of petitioner Anil Kr. Maity is running his business of green vegetable since long. Since many a times the petitioner Anil Kr. Maity took several attempts to evict the said Bhola Nath but in no occasion he could be successful in his such attempts. The said enquiry also ascertained that the entire bazaar area including bazaar committee are also hundred per cent in support of Bhola Nath Mondal the defendant. Therefore, it is obviously a hard task to evict Bhola Nath Mondal from the verandah of Anil Maity's Room on Dag No. RS/1668, Khatian No. 205, Mouza Deulia with a scanty number of police. Hence to tackle the inevitable law and order situation over the said area the police force as noted below should be deployed to avoid any sort of serious breach of peace at the time of eviction. Strength of Force-4 S.Ls, 5 A.S.I.s, 20 Constables and 6 Lady Constables. Apart from this, 1 Inspector also should be deployed at the time of eviction.
Under the circumstances, I beg to submit that the police cost required is a result of assessment of strength made by Officer-in-Charge, Deganga P.S. according to whose assessment the first probable assessment of strength i.e. l(one) Sub-Inspector of Police, 3 (three) constables and 2(two) Lady Constables urill not be sufficient.
11. It would appear that enquiry made by the Officer-in-Charge, Deganga Police Station (hereafter the said O.C.) has not revealed truth in its entirety. T.S. No. 337 of 1987 is no longer sub-judice. Bhola Nath Mondal being no more, question of the local people supporting Bhola Nath Mondal or evicting Bhola Nath Mondal does not arise., Be that as it may, the said S.P. appears to have issued the letter dated 28.8.06 based totally on what was reported to him by the said O.C. without taking any pain to ascertain either the factual position or the legal position. The approach of the said S.P. to address the problem appears to me to be absolutely mechanical. The report is also silent regarding manner of computation of the sum of Rs. 11,882/-, assessed as costs to be borne by the petitioner.
12. The facts as noted above, indeed, depict a sordid state of affairs. A citizen, in order to recover possession of his own property (a room barely measuring 15 ft. x 10 ft.) through judicial process, did whatever the law obliged him to do. The civil suit instituted by him took eleven long years to be decided. Thereafter, another nine years have passed by. He is yet to recover possession of the suit property. In all twenty years have passed by, and now he is told to deposit an amount of Rs. 11,882/- for deputing police personnel to maintain the general law and order situation in the locality and to tackle any resistance that might be offered by the judgment-debtors and their accomplices, while efforts are made to give him possession of the suit property. Should this position be allowed to continue? Should the Court remain a mute spectator in the circumstances? The answers to both these questions, in my considered view, would be an emphatic 'NO'. The next question is, to what relief is the petitioner entitled and what should the Court order in the circumstances? It would now be my endeavour to find the correct answer.
13. Chapter 10 of the Civil Rules and Orders of the High Court, Calcutta deals with Execution of Decrees. Rule 208 thereof provides for police help for executing a decree. Sub-rule (2) of rule 208 is extracted below:
Rule 208(1) ****** (2) The requisition to the Superintendent of Police should state in brief the need for such aid, the number and rank of men required, the nature of the process and the place where it is to be executed. It will be for the Superintendent of Police to decide how best and when he will be in a position to offer the help sought.
a) Costs for police help shall be charged in executing decrees in cases where such help is considered necessary because of apprehensions of violence or obstruction from the judgment-debtor himself. The party concerned shall be ordered to deposit such costs for the service as the Superintendent of Police may require under the rules of the department.
b) Costs for police aid shall not be levied in cases where police help is required because of conditions of a general character, such as the locality being in a disturbed state or a class of people similarly situated, being likely to make a common cause with the judgment-debtor and resist execution.
c) In cases where a levy of costs is ordered, such costs shall be added to the costs of execution.
Note 1- It shall be the duty of the Court to decide in each case under which category it falls, that is 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 are to be charged.
Note 2- Police aid shall not be requisitioned or taken in effecting the arrest of judgment-debtors unless it is clear that no other means will possibly achieve the required result.
14. Rule 208(2)(b) makes the position absolutely clear. Costs for police aid is not to be levied in the cases mentioned therein. The present case falls well-nigh within the cases contemplated by the said provision. The Executing Court having reached a conclusion that because of apprehended violence or obstruction from the judgment-debtor himself aid of an Inspector, three Constables and two Lady Constables would be required for executing the decree in question, the petitioner in terms of Rule 208(2)(a) would be liable to bear, at best, the costs of only those six police personnel, amounting to Rs. 1,988/- and no more. But to foist the liability of bearing costs for deputing 36 police personnel, i.e. Rs. 11,882/-, as assessed by the police authorities of the district purportedly to maintain the general law and order situation and to prevent breach of peace (which they apprehend is likely to be breached at the instance of rowdies not having any respect for the rule of law) is not only illegal and arbitrary but has to branded, in the circumstances, as mala fide.
15. The duties of police officers in terms of the Police Act, 1861 and the provisions of the Police Regulations of Bengal, 1943 are well defined, and no elaborate discussion is necessary. To ask a citizen to pay for costs of deputing police personnel to maintain the general law and order situation and for prevention of breach of peace appears to me to be preposterous.
16. The situation with which the petitioner is faced is not new and history seems to have repeated itself. This Court was faced with a similar situation, as it appears from the decision reported in 63 C.W.N. 561 Probodh Chandra Butt v. State of West Bengal (cited by learned Advocate for the petitioner). Hon'ble P.B. Mukharji, J. (as His Lordship then was) observed:
As the petitioner could not execute the decree for recovery of possession, he applied for police help and was prepared to pay reasonable police charges. By an order passed by the Munsif on the 27th/28th February, 1956, the petitioner was required to deposit the exorbitant sum of Rs. 7,641/- as costs for such police help. It is against this order that the petitioner has come up before the Court for a Constitutional writ to quash it. He naturally says that this is denial of bare justice to him. Indeed, I have not come across a more glaring case. If a citizen of this Republic who has obtained his decree from the lawfully constituted Courts of this country has got to deposit for police costs the sum of Rs. 7641/- for the recovery of a small area of land hardly measuring 15 feet x 15 feet and not worth more than Rs. 75/- to vindicate and execute his decree then I am afraid all judicial processes, judicial pronouncements and decrees are in grave danger and the whole Government and administration are in jeopardy.
...
Common sense and common fairness demand that no decree-holder should be called upon to pay so exorbitant and absurd a sum like Rs. 7,641/- for execution of his decree for possession of a tiny area of land measuring 15 feet x 15 feet and costing not more than Rs. 75/-. The enormity of the sum is itself its own condemnation.
17. I respectfully agree with the view expressed by His Lordship. The judgment in Probodh Chandra (supra) was delivered on 20.2.59. Almost forty-eight years have passed since then. The tradition of apathy and indifference of the police continues. The petitioner has named two officers of Deganga Police Station who, he alleges, expressed dissatisfaction over the petitioner moving this Court and had threatened that the petitioner would not get police help for recovering possession of the suit property. Whether the allegations are true or not, need not be enquired into here since I have not called for affidavits. But having regard to the startling facts which have since surfaced, the judiciary ought not to sit back. Technicalities cannot stand in the way of serving the people of the Republic, or else the public would lose faith in the justice delivery system and are likely to have an impression that the concept of 'rule of law' exists only on paper. In ordinary circumstances, I would have only direct the said S.P. to comply with the order dated 17.7.04 passed by the Executing Court. But this is a glaring case where the petitioner despite doing all what the law obliges him to do is yet to achieve his goal of recovering possession of the suit property, through judicial process. Accordingly appropriate orders are required to be passed to render 'just justice' to the petitioner who, by the passage of time has turned into a septuagenarian.
18. Accordingly while moulding the relief as prayed for, I quash the assessment of costs for deployment of 36 police personnel as communicated by the said S.P. vide letter dated 28.8.06 since it clearly contravenes Rule 208(2)(b) supra. I further direct that within a period of three weeks from date of communication of this order, the said S.P. shall fix a date as per his convenience (which is to be intimated to the learned Civil Judge who is in seisin of Misc. Case No. 5 of 2004 seven days in advance), when he shall be in a position to make available his police force, in sufficient number, to maintain the general law and order situation in the locality where the suit property is situated and to prevent any breach of peace by elements not having regard for the legal system, whilst possession of the suit property is made over to the petitioner by the concerned bailiff to be deputed by the learned Civil Judge. If the situation so warrants, the said S.P. shall personally supervise the entire operation. Any untoward incident shall be strictly dealt with according to law and no offender shall be spared.
19. The writ application, thus, succeeds.
20. I am inclined to award costs to the petitioner, for, leaving aside the agony he had to withstand for all these twenty years, even to activate the said S.P. he had to move this Court on an earlier occasion and now a second petition before this Court had to be moved against an order which is clearly untenable. Hence, I hold the petitioner to be entitled to the costs of this application. The sum of Its. 1,988/- which was assessed to be the costs for deployment of six police personnel need not be paid by the petitioner since the same, in terms of this order, shall constitute the costs awarded to the petitioner on this application.
21. I also direct the Registrar General to forward a copy of this judgment to the Director General of Police, West Bengal and the Commissioner of Police, Calcutta with the request to them to apprise their subordinates the tenor and purport of Rule 208 of the Civil Rules and Orders of the High Court, Calcutta so that there is no recurrence of any order as the one impugned herein and that other decree holders do not face the same predicament as the present petitioner.
22. Urgent xerox certified copy of this judgment be furnished to the parties, if applied for, within 3 days from date of putting in the requisites therefor.