9911796707
TMI Blog2003 (9) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... as Elias Meyer Free School and Talmud Torah by the pen of one David Elias Nahoum claimed to be the honorary secretary of the said school. According to him, the school is managed by a managing committee mostly comprising of the members of the Jewish community of Calcutta. Further, according to him, the managing committee is responsible for and authorised to protect the rights and interests of the said school and the properties of the school being the sole beneficiary. The school was formed in the nineteenth century. On March 27, 1912, a deed of trust was created by the members of the managing committee and three persons belonging to the Jewish community were appointed as trustees of the trust. Consequent on resignation of the three trustees on June 16, 1916, an indenture was executed by the retiring trustees and members of the managing committee of the school where under the official trustee of the State was appointed as sole trustee of the said trust. On November 17, 1938, one Birendra Chandra Dutta and one Bijoy Chandra Dutta conveyed about 76 bighas and 17 cottahs of land to the official trustee. On June 2, 1950, the official trustee leased out a portion of land comprising of 40 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he official liquidator had taken steps to execute the deed of conveyance in respect of the premises owned by the trust. On September 11, 1998, by an order of the court, the official liquidator was granted liberty to seek legal opinion and on the basis of the written opinion the official liquidator came to know that the company had a marketable title. On February 26, 1999, draft conveyance was sent to the office of the official liquidator. By making this application, in effect, the applicant asked for a relief in the nature of declaration that the land in question is absolutely freehold property held by the trust for the sole benefit of the school with other consequential reliefs. On the other hand, in C.A. No. 568 of 1999 the purchaser company and/or its assignee by the pen of one Sri Deepak Agarwal claiming to be the director of the purchaser company contended that the deed of lease in 1950 and the deed of assignment in 1951 were made in respect of the bare land only. The assignee, M/s. Beni Engineering and Works Ltd., now known as M/s. Beni Ltd. was entitled to erect sheds and structures thereon for their industrial purpose. The structure is still in existence. Such M/s. Beni L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the State authority under section 6(3) of the West Bengal Estate Acquisition Act, 1953, is ab initio void not maintainable in law and liable to be set aside along with the incidental reliefs in connection with the order passed by the authority. At the threshold, Mr. S.P. Sarkar, learned senior counsel, appearing for the applicant in C.A. No. 62 of 1999 raised an issue before this court that since the land dispute is to be heard by a Tribunal set up by the State under article 323B of the Constitution of India the subject-matter has to be heard as regards such question by such Tribunal, i.e., West Bengal Land Reforms and Tenancy Tribunal. I find that the West Bengal Estate Acquisition Act, 1953 and the West Bengal Land Reforms Act, 1954 (hereinafter discussed about the same) are specified Acts and are falling within the jurisdiction of the Tribunal. By virtue of sections 7 and 8 of the said Act jurisdiction of the High Court excepting exercising the writ jurisdiction under articles 226 and 227 of the Constitution by a Division Bench other jurisdictions are excluded. But interestingly, although all references have been made under the civil court nothing was indicated a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be recorded in the name of the company. This is the reason for recording the entire land in the name of the company. The record of the right in respect of the dispute 76 bighas and 14 cottahs of land was thus corrected under section 44(2a) of the Act and on the basis of the corrected record of right the impugned order under section 6(3) of the Act has been passed by the State Government. The Tribunal observed that the 40 bighas of land comprising the factory on the date of vesting was held by M/s. Beni Ltd. and such fact is undisputed. After the land comprised in the factory vested in the State and the lease determined by a reason of the notification under section 4 and the effects thereof under section 5 of the West Bengal Estate Acquisition Act provisions have been made in the proviso to section 6(2) and in section 6(3) of the Act to deal with the lessee and question of retention of such land. The proviso to section 6(2) lays down that if any land comprised in a factory or workshop was held immediately before the date of vesting under a lease such lease shall be deemed to have been given by the State Government on the same terms and conditions as immediately before such date sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany. Both the parties by two writ petitions proceeded before the Division Bench of this court under its writ jurisdiction being W.P.L.R.T. No. 279 of 2002 and W.P.L.R.T. No. 309 of 2002. The contention of the purchaser company before the Division Bench of this court was that notice to resume land on the ground that the said land is not required by the company is itself bad as the Government is not entitled to resume the land if the land was allowed to be retained by the company within the prescribed ceiling. The applicant-school contended before the Division Bench that the dispute between it and M/s. Beni Ltd. (in liquidation) is subject-matter of various proceedings. Therefore, the order of the Tribunal can be interfered with by the court but disputes in between themselves and the company (in liquidation) may be left open. However, without giving any answer to such point the Division Bench considered the point of law available before it. Only recording is "same argument has been advanced by Mr. Sarkar in respect of possession of the property which is also alleged to be in dispute". According to the Division Bench, the lands held by the company (in liquidation) were below the cei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e necessary questions as regards the determination of land at least to the extent of 40 bighas is established in favour of the company (in liquidation). That being the position there is hardly any scope to determine any of the questions made in the applications being C.A. No. 62 of 1999 and C.A. No. 568 of 1999. All the questions as to the declaration of a leasehold land and initiation of proceeding under section 6(3) of the 1953 Act are established by two courts in succession one is the respective Tribunal and another is Division Bench of this court. It was the contention of Mr. Sarkar on behalf of the Jewish School that the company had no jurisdiction to agitate the point before the Division Bench that the dispute in between them and the company (in liquidation) is to be kept open and in fact strive to start a rehearing of the matter before this court. According to me, the stand of Mr. Sarkar cannot be acceptable. He is trying to keep the dispute open for ever which cannot be the acceptable position. Moreover, I do not find there is any locus standi of such school at this stage. The locus standi, if any, was with the State, who said that the land in question can be resumed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also granted to them to complete the course of hearing before the Division Bench of the court Therefore, it was a clear understanding between the parties that the adjudication and order to be passed therein would have binding effect upon all the parties Therefore, if any of the parties now turns back and raises this issue before the company court, such court cannot listen by way of disposing of the company applications That apart, in the Companies Act there is no exclusion of jurisdiction like the West Bengal Land Reforms and Tenancy Tribunal Act, 1997. The requirement of section 446(2) of the Companies Act is that a leave is necessary for the purpose of proceeding with the same. In practice, all the matters are to be brought before the court having company jurisdiction to hear it out. But my question is that when both the parties arrived at a consensus before the company court to proceed before the Tribunal and also before the Division Bench and the court allowed the adjournment on the basis of the submissions can it not be said to be a leave granted by the court. It is, of course, a leave by necessary implication Leave was granted to go before the appropriate forum and come back ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
