Ishtiaq Ahmad vs Union of India (UOI) and Others

G.D. Sharma, J.—The petitioner herein is an Industrial Unit which manufactures soaps of verious varieties and is known as ""John Soap

Industries"". Through the medium of this petition filed by its Managing Director, the writ jurisdiction of the Court vested under Art. 226 of the

Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir has been invoked. Direction is sought against the

respondents to vacate the premises of the said Industrial unit which is situated in village Lethapora of Srinagar District. Compensation for

unauthorised use and occupation of the said premises as well as loss suffered on account of the closure of the said unit is also claimed. It has inter-

alia been pleaded that in the year 1982, the petitioner-unit stepped into the shoes of the original promoters of the Unit in question as the same had

become non-functional. The Unit was brought on the rails after making huge investments. Skilled and unskilled workers were employed and the

Unit used to manufacture three varieties of soaps. During the month of March, 1993, respondents forcibly occupied the premises of the said

Industrial Unit and eversince then are in possession thereof. The petitioner many a times asked respondent No. 3 for the vacation of the premises

but all such efforts ended in vain. Respondents have also caused extensive damage to the structures. Vacation of the said premises is sought from

respondents 3 to 6 and compensation for the loss of the business, use and occupation as well as actual damage caused to the structures is sought

from respondent No. 1.

Respondents in their objections have raised preliminary objection regarding the maintainability of the writ petition on the plea that questions of

fact are involved to be determined in this case which cannot be get done while exercising the writ jurisdiction. It is admitted that column of 79 Med.

Regt. Unit (respondent No. 4) occupied the vacant sheds on November 24, 1993 but vacated the same on Dec. 6, 1993. Thereafter, they again

entered into possession on April 30, 1994 and vacated the same on May 16, 1994. The column of 1872 Lt. Regt. (respondent No. 5) occupied

the premises in Dec. 1993 and vacated the same on May 13, 1994. That column of 66 FD Regt. (respondent No. 6) entered the vacant sheds of

the Unit in question on September 20, 1993 and vacated the same on May 2,1994. The column of 1 RR moved near the location of the premises

of the petitioner in February, 1993 and itched up their tents in the open space. It is also proaded that the petitioner had received threats from the

militants. They had been extorting the petitioner to pay them lump-sum in the amount of rupees one-lakh. The petitioner could not meet the demand

and under lurking fear abandoned the premises which were lying vacant. Since, the petitioner apprehended danger at the hands of the militants to

the structure of the factory so he made requests to the concerned officers of the respondents to occupy the vacant sheds. The occupation of the

vacant sheds was taken from the concerned chowkidars of the petitioner-Industrial Unit namely Kulwant Singh and Rattan Singh. The possession

of these sheds was resorted to them when the sheds were vacated. The factory building and the laboratory blocks always remained under the lock

and key of these chowkidars. It is denied that any damage was done to the building or for the acts of the respondents the business of the factory

was closed.

Heard the arguments of the counsel appearing for the parties.

Mr. Jan, learned counsel for the petitioner, has contended that respondent Nos. 3 to 6 forcibly occupied the Industrial premises of the petitioner

and the result was that trade and business came to a grinding halt. All the enteaties of the petitioner for getting the premises vacated fell flat into the

deaf ears. By this illegal act, the fundamental rights of the partners of the petitioner to carry on their trade and business have been infringed.

Constant recurring loss in their earnings is being caused from the month of M arch, 1993. The material which had been collected there for

manufacturing of soaps of various varieties was destroyed. Besides this, extensive damage to the existing structures was done.

Mr. Anil Bhan. Sr. CGSC has contended that on the request of the Management of the petitioner-Industrial Unit the army personnel occupied

the vacant sheds. According to him, on the eruption of militancy in the valley, the Industrial Unit in the valley had become sick. The militants had

been marking demands to extort as sum of rupees one lakh and in order to save their skin and the property of the industrial Unit in question the

nartners of the concern in question them-selves had invited the army personnel and inducted them in possession. That the petitioner unit has failed

to place on record any balance-sheet which could lend assurance to their contention that the unit was functioning before its alleged forcible

takeover. In this manner no right to carry on trade or profession was infringed and the writ petition is not maintainable. However, if any tortious act

has been committed by the respondents, for that the gates of the Civil Courts are open and on proof the petitioner can get the general as well as

special damages.

Before adverting to the respective contentions of the learned counsel appearing for the parties, it becomes necessary to go into the contents of

the report of the Commissioner appointed by the Court vide order on 1-6-1994. Mr. G. Q. Wani, Dy. Registrar of this Court was appointed as a

Commissioner and he on 10-6-1994 inspected the petitioner-Industrial unit in the presence of the counsel for the parties and the administrative

Officer of the petitioner. He has reported that the army authorities did not give him the keys of two reception rooms (marked 'A' in the site plan

prepared by him) and they were under the occupation of the army authorities. The main factory building where the soap used to be manufactured

(marked 'B' in the site plan) was found closed and locked. The Administrative Officer had stated that the same was under the occupation of the

army. That in the adjoining rooms (which were in large numbers) no activity for reviving the soap manufacturing process could be revived. The first

storey building and on its back a long corridor shown as mark ""1 and 2"" in the site plan were under the occupation of the army. Nine double rooms

on the first floor except room Nos. 6 and 7 were also found under the lock and key of the army and they refused to open them. The army

personnel did not permit the administrative officer to enter those rooms which were lying vacant. According to the administrative officer, the army

personnel caused damage to the finished soap cakes lying in the Laboratory room to the extent of Rs. 8000/-. Two big halls previously used as

godowns on the ground floor were also being used by the army. The boiler and generator rooms were also found in the occupation of the army.

Near the boiler room one open concrete cement tank used for raw soap was found and according to the administrative officer, the army personnel

had caused damage to the raw soap to the tune ot"" rupees one lakh. Other rooms in that vicinity were also found in possession of the army

personnel. The manufacturing material which was being used for making the soap was seen by the Commissioner in damaged condition, in one

unlocked room there were found number of perfume drums and according to the administrative officer, damage was caused to the tune of rupees

three lakh. A well in the factory premises was found which according to the administrative officer was 60 fit, deep but the same was found filled

with all kinds of waste material. Rapping material was found lying in one room and it was estimated that damage was caused to it to the extent of

rupees two lakhs.

On the receipt of the report of the Commissioner, the counsel for respondents was asked to file objections which were not filed. Mr. Bhan, Sr.

CGSC filed the objections to the writ petition after the receipt of the report of the Commissioner and had failed to raise any objection regarding the

factual correctness of this report. In this view of the matter, the report Commissioner remains unchallenged.

After appraising the respective contentions of the counsel for the parties, it is found that there is not even an iota of truth in the plea of the

respondents to the effect that they occupied the premises of the factory in question at the behest of the partners of the petitioner-concern. From the

own admission of the respondents it is established that they are in occupation of the premises from the year 1993. They have tried to establish that

part of these premises were vacated by them by the year 1994 against receipts issued by the employees of the petitioner-Unit. This ipse dixit of the

respondents cannot be accepted without demur as the receipts have been obtained from the lowest rung of the employees of the petitioner and

element of allurement or coercion cannot be eliminated, On the contrary, the report of the Commissioner (Deputy Registrar of this Court) is a tell

tale and cannot be brushed aside. He visited the premises in the presence of the counsel for the parties. Despite the directions from this court for a

detailed inspection the army personnel on the spot showed recalcitrance and obduracy.

According to the Commissioner, finished soap cakes lying in the room were destroyed to the extent of the value of Rs. 8000/'-. Damages to the

raw soap was caused and perfume contained in the drums was also destroyed. The rapping material was also damaged. The Administrative

Officer of the petitioner had on the spot estimated all these damages exceeding rupees six lakhs. Article 19 of the Constitution of India ensures that

all citizens shall have the right to practice any profession or to carry on any occupation, trade or business. The facts of the case undubitably

establish that the army authorities without any lawful authority have occupied the premises of the industrial unit in question. The oral assertion of

Mr. Bhan that on the invitation of the employees of the petitioner, the army had moved in the vacant premises and pitched up their tents is not

acceptable. The petitioner has been at least clamouring since the year 1994 (when this writ petition was filed) to get the premises vacated but the

respondents like a cantankerous litigant are fighting out the litigation on flimsy and aerie grounds. After the filing of this writ petition, the alleged

gratuitous and grandeur stay of the respondents in the premises in question had been scuttled and aborted but it is not understandable how they are

extending their stay without paying anything either by way of rent or licence fee to the petitioner. The law enforcing agencies are required to obey

rule of law more rigorously and vigorously. Unauthorised presence of the respondents in the premises and their occupation of the building have

made it impossible for the petitioner to carry on its trade and business and thus infringement of fundamental right guaranteed under Article 19 of the

Indian Constitution has been done. While exercising discretionary writ jurisdiction proper assessment of damages (both general and special) cannot

be made but the court will be failing to discharge its constitutional duty in case the fundamental right of the petitioner is not restored.

In the case of Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others, the apex Court granted the compensation when it was

found that violation of the fundamental right to life was established, In the case of Rudul Sah Vs. State of Bihar and Another, , the Supreme Court

granted the compensation to a detenu where his detention was found illegal. In the case of Century Spinning and Manufacturing Company Ltd. and

Another Vs. The Ulhasnagar Municipal Council and Another, the apex Court had held that where alternative remedy of civil suit was open,

petitioner not to be relegated to the remedy of suit merely because questions of fact were raised.

In this case, questions of fact are raised and they require determination as to how much damages (both general and special) are payable to the

petitioner. But legally there can be no bar for granting interim relief to the petitioner. The partners of the petitioner Unit had been eking out their

livelihood peacefully but because of this act of the respondents they have been left high and dry. With alarming alacrity the partners of the Industrial

Unit in question want to put on rails their trade and business and require immediate reimbursement. On these facts and the circumstances of the

case, the petition is accepted and the respondents are mandated to vacate the premises in question within a period of three months and to pay

compensation in the sum of rupees two lakhs. The sum so awarded and paid will be finally adjust in the payment of all dues which the competent

forum may finally determine in case the petitioner put forth the claims. The petition is accordingly disposed of.