9911796707
TMI Blog2004 (12) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... n on rent to Kalol Mills Limited. 2. The above application was rejected by this Court (Coram: D.A. Mehta, J.) alongwith other applications, vide order and judgment dated 30th July, 2002 and it was held therein that the possession of the land in question could not be handed over to the applicant-landlords for the reasons stated in the said judgment. 3. The applicant thereafter moved Company Application No. 29/03 in Company Application No. 324/94 seeking review of the order and judgment dated 30-7-2002 passed by this Court in Company Application No. 324/94 in Company Petition No. 163/89 insofar as it related to the land bearing City Survey No. 132 admeasuring 28 308 Sq. Mtrs. of revenue Survey No. 1/1, village Kalol, District-Gandhinagar, as the said portion of land has not been leased to the Kalol Mills Limited (in liquidation) and it was also prayed that after reviewing the said order, the opponent be directed to return back the possession of the said land to the applicant. The applicant has also moved a draft amendment in the said application requesting the Court to restore the Company Application No. 324/94 to its original file with respect to the prayer ( a ) made ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, District Mehsana. In the year 1937 by Registered Deed, the applicant s father gave land bearing Survey No. 1/1 admeasuring 17.13 bighas out of in all 30.8 bighas of land on lease to Kalol Mills Ltd., on condition that the Company shall pay to the applicant s father lease rent of Rs. 617.75 p.a. Pursuant to the said lease deed, the Company took over possession of the said land and put up structures and also plants and machineries. The applicant s father thereafter died and the applicant became owner of the said land. 8. Mr. Pahwa has further submitted that in the middle of 1980, the Company went into liquidation and the Official Liquidator was appointed to look after the affairs of the Company. By virtue of the powers vested in him under the provisions of Companies Act, 1956, the Official Liquidator took over possession of the assets of the Company. In the process, the Official Liquidator also took over possession of other areas which were not let out by the applicant and which belonged to the applicant. Mr. Pahwa has further submitted that the applicant has requested the Official Liquidator to hand over that portion of the land which was not let out by the applicant s father ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .8 Bigha which is equivalent to 20 Acres and 32 Gunthas. He has further submitted that the plain reading of the said lease deed clearly spells out the fact that out of total land of Revenue Survey No. 1/1 which is admeasuring about 20 Acres and 32 Gunthas, a portion of 9 Acres land was leased under the said lease deed leaving the balance of about 11 Acres and 32 Gunthas which is the land not leased to the Mill Company. Mr. Pahwa has further submitted that no further lease deed was executed thereafter and the applicant remained in possession and occupation of the said land. 9. Mr. Pahwa has further submitted that on 11th August, 1969, the Manager of the Mill Company himself applied for Hissa Form No. 4 and on the basis of the application given by the Mill Company, relevant entries were made in village Form No. 6 bearing City Survey No. 2373. The said entry was mutated in village Form No. 6 on 28th October, 1969 and after following the proper procedure as prescribed under the Bombay Land Revenue Code, read with relevant rules and after giving opportunity of being heard to the predecessor-in-title of the applicant as well as Mill Company, the said entry was certified by the Mamlat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e the land covered by City Survey Nos. 129 and 132 as being leased by the applicant to the Company in Liquidation. The land owner was neither issued notice nor was heard before making the said entry. Mr. Pahwa has further submitted that after the winding up order was made and an advertisement was issued to that effect, the land owner learn about the mistake committed by the Inquiry Officer in the Inquiry Register. The applicant made an application to the City Survey Superintendent on 5-7-1996. The City Survey Superintendent by referring to the lease agreement and the boundaries as described therein agreed that mistake was committed. The City Survey Superintendent, therefore, rectified the mistake. However, subsequently it was felt that the City Survey Superintendent may not be competent to rectify the register and only Dy. Collector may be competent to rectify such entries made in the register. The applicant, therefore, moved appropriate proceedings before the Dy. Collector who in turn by order dated 30-9-2002 rectified the entry made in the register. 11. Considering the aforesaid facts Mr. Pahwa has submitted that the applicant has not leased out the land covered by City ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Sub-Registrar of Assurance under Serial No. 926 is executed between Bharat Vijay Mills Ltd., Kalol of the One Part and Kalol Mills Private Ltd. of the Other Part, it is recited that Company is possessed of and entitled to leasehold lands in the town of Kalol bearing S. No. 1/1 (part) admeasuring 13 Bighas and S. No. 1/2 (part) admeasuring 19 Bighas 1 Vasa. So far as description of the land is concerned, it is given in Schedule 1 and perusal of Schedule 1 will show that two separate pieces of land shown at items (1) and (2) are described which are demised to Company. 13. Mr. Desai has further submitted that a deed of Conveyance Release and Confirmation was made at Kalol on 23rd June, 1972 and Registered with Sub-Registrar of Assurance under Sr. No. 1162 and made between one Thakore Jagatsinhji Mansinhji and others and it appears from the said documents that applicant is executing party to the said documents and his name is shown at Serial No. 4. Here also it was specifically shown that there were two separate leases one demised to Bharat Vijay Mills and another to Ahmedabad Manufacturing and Calico Mills Limited by the applicant s predecessor in title. He has further submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has two parts of Revenue Survey No. and 132 has one part of Revenue Survey No. which are parts of 1/1 and 1/2 Revenue Survey Nos. City Survey No. 132 is part of 1/1. It is further stated that to the west of City Survey No. 129 there is open piece of land of 132 City Survey Nos. 133 and 136 Survey No. and to the east of the same City Survey Nos. 131 and 130 and after it, there is railway line. To the west of City Survey No. 132 is open piece of land bearing Survey No. 144 which is presently a Government owned land and to the east is 129 and to the south is survey Nos. 143 and 133 which is a pond and farm which is R.S. Nos. 4 and 3 respectively. It is further stated that on perusal of the two agreements dated 1919 and that of 1937 it is clearly observed that the revenue survey Nos. 1/1 part and 1/2 part were given on lease to the mills by two separate agreements in the year 1919 for City Survey No. 129. The agreement of 1937 gave further land on lease to the mills from Survey No. 1/1 and on seeing the directions of this agreement it is clearly mentioned to the west of the same is land bearing City Survey No. 144 which is now Government land and similarly to the south is pond and fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent, did not care to produce any record to show the correct facts to the Prant Officer, Gandhinagar. He has further submitted that in the order nowhere it is stated that the City Survey Superintendent had appeared and produced the record of the case. 18. Mr. Desai has further submitted that without following the principle of natural justice, the Prant Officer, Gandhinagar has passed the order dated 30th September, 2002. He has, therefore, submitted that the order passed by the Prant Officer is illegal and not binding on the Official Liquidator and it is required to be quashed and set aside. Mr. Desai has further submitted that when no original documents were produced by the applicant, the appeal should have been rejected by the Prant Officer, Gandhinagar. He has further submitted that the Prant Officer, Gandhinagar, in spite of non-production of the document, though called upon to produce and not produced by the applicant, passed the order, which speaks volume of the attitude of the respondent No. 1. 19. Mr. Desai has further submitted that the Prant Officer has no jurisdiction nor any authority to inquire into and decided the issue as to whether a deed of lease has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Company was ordered to be wound up and liquidator was appointed. It is also necessary to point out to the Prant Officer while making an application of deletion of the entry that the matter was subjudiced before this Court. The said fact was never intimated by the respondent No. 1 to this Hon ble Court or to the liquidator. It will be seen that the order is passed by the Prant Officer, Gandhinagar after the Company Application No. 324 of 1994 was dismissed by this Hon ble Court on 30th July, 2002. He has further submitted that under the provisions of section 446 of the Companies Act, 1956 after the Company is ordered to be wound up, before initiating any proceeding, permission of the Company Court, is mandatory. In the case before the Prant Officer Respondent No. 1 had not obtained any permission under section 446 to initiate any proceedings. Instead of following proper procedure of law, respondent No. 1 has adopted an attitude of making an application without joining Liquidator and taking away the right of Liquidator. Mr. Desai has, therefore, submitted that the order passed by the Prant Officer is ex facie illegal and contrary to the provision of the Act as well as agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the remaining land of even number is situated which is the ownership and occupation of the landlord. No measurement is given of this land. From the description of the boundaries in the agreement of 1937, one cannot jump to the conclusion that the applicant has not leased out the disputed land or that he is in possession of the said land. It is also very interesting to note that though the applicant is claiming ownership and possession of this disputed land on the basis of description of boundaries given in the agreement of 1937, he has not bothered about this land till 1994 when the above Company application was filed before this Court. The applicant has not produced the alleged letter dated 11-8-1969 of the Manager, extract from Hissa Form No. 11 and the Village Form No. 6, alongwith the Company application. These documents were produced alongwith the Affidavit filed in March, 2000. The applicant has not disclosed the fact regarding pendency of the above application while giving an application on 30-3-1996 for cancellation of an entry of the Mills Company from the property card. Though the said entry was cancelled on 5-7-1996, the City Survey Superintendent has cancelled this canc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly. The City Survey Superintendent has, therefore, come to the conclusion that relevant lands were duly leased out to the Mills Company. 27. From the above discussion, the Court is of the view that the applicant has failed to establish his case before the Court and on the basis of such remote and far-stretched documents, the belated claim of the applicant can neither be entertained nor be allowed. 28. So far as Company Application No. 244 of 2004 is concerned, the challenge therein is the order of the Prant Officer passed on 30-9-2002, which is absolutely unlawful and unsustainable on many grounds. First of all, appeal filed by the landlord being apponent in this application was hopelessly time-barred. No reason, much less any convincing reason is given in the order for condonation of delay. Though the Mills Company is under liquidation, neither any permission under section 446 of the Act was sought for before filing the said appeal nor the Official Liquidator was joined as a party in the said appeal. Despite the pendency of Company Application No. 324 of 1994 before this Court, the said fact was not disclosed and the order was fraudulently obtained by suppressing the mater ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
