9911796707
TMI Blog2005 (12) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... emerge from the record can be summarized as under : 2.1 The GSCL was established and registered under the provisions of the Indian Companies Act, 1956. GSCL has its registered office at Sidheegram, Junagadh District of Gujarat. Due to market recession GSCL suffered losses and ultimately registered with BIFR under the provisions of Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as SICA ) in July 1990. A rehabilitation scheme was presented in the year 1990 and the GSCL was registered under section 3(1)( o ) of SICA. Initially the scheme was sanctioned on 26-10-1993 and State Bank of India was appointed as the Operating (Monitoring) Agency. On 30-5-2001 BIFR granted last extension for submitting modified scheme, but the same could not be presented, as a result of which the BIFR passed an order on 29-11-2001 for winding up of GSCL. 2.2 Feeling aggrieved by the order passed by BIFR, GSCL preferred Appeal No. 367 of 2001 before AAIFR. The Company submitted their scheme on 12-2-2002. 2.3 By their letter dated 15-2-2002 the State Government informed AAIFR that rehabilitation plan of the Company depends critically on reliefs and concessions e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin a week. GSCL shall supply all the required information for preparation of revised projections by SBI. SBI shall prepare the revised version of DRS after incorporating the modifications pursuant to the decisions recorded above and the information to be received from IDBI about participating FIs in term loan, along with revised statements of projection and submit copies thereof at least five days before the next date of hearing with copies to all concerned." 2.8 The matter was thereafter adjourned to 4-7-2002 for further orders. In the meantime the petitioner addressed a communication dated 25-6-2002 pointing out that the State Government is not in a position to accept the concessions envisaged from the Government of Gujarat, as the equitable and matching principle is not satisfied. It was further stated that it has been the policy of the State Government since last 11 years that unless equitable and matching principle is satisfied there is no question of the Government of Gujarat participating in any such rehabilitation scheme. Again vide communication dated 16-8-2002 the petitioner informed AAIFR the details of the sacrifices required to be made by the State Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he letter dated 29-4-2002 was very clear that the proposed scheme on which the objections were invited, was objected by the petitioner and it has not given consent for implementation of the scheme. 3.4 According to Mr. Shelat, AAIFR has committed an error in holding that the equitable and matching principle is required to be satisfied in terms of percentage and not in terms of absolute amounts and thus by way of an interim order, during the course of hearing on 27-5-2002 observed that the principle stands satisfied. 3.5 Mr. Shelat submitted that GSCL has paid Rs. 318 crores to Banks and Financial Institutions at the cost of Government of Gujarat by way of relief of deferment of Government taxes and therefore GSCL is trying to escape from tax liability by seeking benefit under one scheme or the other Government Resolution while continuing to make payment to banks and financial institutions. 3.6 According to Mr. Shelat, the finding of AAIFR with regard to deemed consent is not tenable inasmuch as the order dated 27-5-2002 was not a final order sanctioning the scheme. He pointed out that the matter was adjourned to 24-10-2002 and thereafter till it was finally decided on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to sub-let, the tenant must be granted that right to do so, by the landlord. The expression confer is pointer to something done overtly and explicitly. The meaning of the word confer as indicated in the Law Lexicon by P. Ramanatha Aiyar 2nd Ed. Reprint 2000 at page 381 means go give . Conferring is an act of authority...men in power confer . It is therefore clear that the conferring indicates some positive action in giving something, may be some right or privilege to another person. It is in this background that the word consent as occurring in clause ( i ) of sub-section (4) of section 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965 is to be seen. According to the said provision if the lease does not confer a right on the tenant to sub-let, he cannot do so without the consent of the landlord. If he does so after coming into force of the Act, he would be liable to be evicted and the possession be given to the landlord. On reading of the whole provision proposition of implied consent, in such cases, would not be readily acceptable. The consent of the landlord should be in a positive way, clear cut and without ambiguity since otherwise right to sub-let is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of acquiescence , it is not consent. The difference which is pointed out between the two in this contest is that consent involves some affirmative acceptance, not merely a standing by and absence of objection. The affirmative acceptance may be in writing, which is the clearest obviously; it may be oral; it may conceivably even be by conduct, such as nodding the head in a specific way in response to an express request for consent. But it must be something more than merely standing by and not objecting. Bell v. Alfred Franks Bartlett Co. Ltd. [1980] 1 All ER 356 at 362 C.A. per Megaw LJ. The above observations though no doubt made in reference to particular provision, yet they throw some light on the question of implied consent that there has to be something more than mere inaction or lack of initiative on the part of the landlord. In context with the above, we find our view reinforced on the meaning and import of the word consent as used in clause ( i ), sub-section (4) of section 11 of the Act when read in the background of the word confer in the latter part it will only mean that consent has to be with some positive action on the part of the landlord so that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r trial." (p. 1438) 3.12 Mr. Shelat has also relied upon a decision in the case of Amar Chand Butail v. Union of India AIR 1964 SC 1658. Paragraph 9 of the said decision reads as under : "(9) It appears that at the stage of trial, a document purporting to be an affidavit was filed making a claim for privilege on behalf of respondent No. 2. This document was signed by Padam Dev who was the Home Minister in Himachal Pradesh. It is clear that on the point of the privilege the appellant cannot be met by the plea of res judicata in this Court, because whatever may have been the position in regard to the effect of the interlocutory orders passed by the Judicial Commissioner on this point. Now that the matter has come to this Court in the form of an appeal by the appellant against the final decree passed in the suit, it is perfectly open to him to contend that the Courts below were in error in upholding the plea of privilege. This position is not and cannot be disputed. Therefore, the question which arises for our decision is whether the claim for privilege was justified." (p. 1661) 4. Mr. Nageshwara Rao, learned senior counsel appearing for GSCL, the respondent No. 2 here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances, the review order could not have more force than the original order. Therefore, we do not find any manifest error of law warranting interference. " [Emphasis supplied] (p. 2183) 4.3 Mr. Rao submitted that the High Court will issue a writ of a certiorari only when there is an error apparent on record or when the order impugned suffers from jurisdictional errors. He submitted that normally the High Court will not exercise its discretion unless the impugned order is a perverse order. He further submitted that the Appellate Authority has considered the interest of all concerned and formed an opinion in favour of revival of the company. Therefore, even if a second view is possible, it is not desirable to change the same after the scheme was implemented and in operation and when the parties have altered their position. 4.4 In support of this contention he has relied upon the decisions in the cases of State of U.P. v. Johrimal AIR 2004 SC 3800, Ranjit Singh v. Raviprakash AIR 2004 SC 3892, Ranjeet Singh v. Ravi Prakash AIR 2004 SCW 4221, Suryadev Rai v. Ramchander Rai AIR 2003 SC 3044 and Vinedale Distilleries Ltd. v. Appellate Authority for Industrial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jarat Industries Mines Deptt. GR No. LML-1090/116/B/273-P dated 26-6-1991, which was in force at material time, does permit relaxations beyond guidelines in individual cases. The relevant provision in the GR itself states that "where relaxation is required in individual cases, Government orders will be obtained". He therefore submitted that the Operating Agency has not committed any error in including reliefs and concessions beyond the scope of the policy of the Government of Gujarat. 5.3 Mr. Desai submitted that since the scheme has worked for almost three years at this stage the petition deserved to be dismissed. He further submitted that he is also adopting the arguments advanced on behalf of the GSCL and submit that the petition may be dismissed. 6. Mr. Bharat Jani for IDBI has supported the contentions raised on behalf of GSCL, and the Operating Agency and submitted that the petition deserves to be dismissed. 7. The other respondents have not supported the case of the petitioner and have accepted the order of AAIFR. 8. At the outset it is required to be noted that the present petition is against the order of the Appellate Authority dated 27-11-2002 whereby th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y when ( i ) the error is manifest and apparent on face of record and ( ii ) grave injustice or gross failure of justice has been occasioned thereby. 8.4 In the case of Vinedale Distilleries Ltd. ( supra ) it is held as under : ". . .In exercise of its jurisdiction under article 226 of the Constitution in the matter of reviewing orders of the Board for Industrial and Financial Reconstruction, reappreciation of evidence by the Court is totally impermissible. The court may have to judicially review the decision or the order, but the Court would interfere only if it finds that the decision-making process is vitiated by an error apparent on the face of the record. The Court would interfere with findings and conclusions of the Board for Industrial and Financial Reconstruction if they are Perverse. Non-consideration of material evidence may vitiate the findings. The Court may in a given case direct the appellate authority or the Board for Industrial and Financial Reconstruction to reconsider the matter in accordance with law. But the Court in exercise of its judicial review jurisdiction would not substitute the findings for that matter of the quasi-judicial bodies who are entrust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as deemed consent. 9.3 Thus, the suggestion was that there should be higher contribution from promoters or for reworking of the scheme. The aforesaid communication was noted in paragraph 14 of the order dated 27-5-2002 and the same was dealt with it paragraph 16 of the said order. Paragraph 16 of the said order reads as under : "16. The Government of Gujarat has neither withheld nor given its consent but has urged that there should be parity, in the sacrifices by FIs/Banks on the one hand and the Government of Gujarat on the other hand and that the promoters should bring in higher contribution. As the outstanding dues of FIs/Banks and the Government of Gujarat are different, the principle of parity can be observed in terms of percentage and not in terms of absolute amounts. The promoters have already agreed to mobilize and induct funds of Rs. 13.24 Cr. In addition to Rs. 15 Cr. envisaged by the DRS. Therefore the points raised by the Government of Gujarat have been substantially met." 9.4 It is evident from the above paragraph that in pursuance of the suggestion by the petitioner by their communication dated 29-4-2002, the promoters have agreed to mobilize and induct f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment. This was considered by AAIFR and in view of the fact that the promoters have agreed to increase their contribution, AAIFR came to the conclusion that the points raised by the petitioner have been substantially met. The petitioner has not challenged the order dated 27-5-2002. They only sought clarification of the said order. The AAIFR, after hearing the counsel for the petitioner and after considering the aforesaid aspect, came to the conclusion as under : "8. We have considered these contentions. As also admitted by the learned counsel for the GOG this Authority has no power to review its own order being a Tribunal of limited jurisdiction. We have gone through the submissions made in letters dated 25-6-2002 and 16-8-2002. What these letters show is that the State Government is aggrieved and is not satisfied with the decision of this Authority contained in para 16 of order dated 27-5-2002. This is nothing but seeking review of our order and not clarification. The order is clear and explicit. These applications are dismissed." 9.8 It is well-settled that AAIFR has no power to review its own order. Even though the petitioner termed the applications for clarification, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period were not filed and conditional consent was given on the basis of sacrifices of financial institutions and State Government on parity basis and/or higher contribution by the promoter. The authority has considered both the objections and has come to a conclusion in its order dated 27-5-2002 which is final for acceptance of the scheme. The subsequent hearing was fixed to approve the implementation of direction issued in the operative order. The subsequent letters dated 25-6-2002 and 16-8-2002 are nothing but an afterthought. The objection with regard to higher sacrifices ought to have been pointed out before 21-4-2002. Therefore, I do not find any merits in the contention raised on behalf of the petitioner in this regard. 10.3 Further, the letter dated 29-4-2002 written by the petitioner does not state or not even suggesting that the consent was withheld. The only objection raised on behalf of the petitioner was considered by the AAIFR, which was not challenged in this petition. Moreover, in the hearing dated 27-5-2002 before AAIFR no further objections were raised on behalf of the petitioner. Even in the order there is no mention about any further objections. I am, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various proceedings, such guidelines or the restrictions cannot apply as a matter of rule to the authority under Special Acts inasmuch as the Government Resolution cannot override the powers of AAIFR which has to consider the scheme keeping in mind the interest of capital investment, the requirement of the industries, interest of workers and other dues of the State Government. AAIFR has to strike a balance amongst all the factors. The Expert Authority constituted under the Act has considered the scheme in detail and therefore, it cannot be said that the scheme has been sanctioned without application of mind. Even otherwise, the Government Resolution itself states that "where relaxation is required in individual cases, Government orders will be obtained." Therefore, there cannot be any hard and fast rule that in each and every case the Government Resolution should be made applicable in strict sense. Therefore, I do not see any merits in the contention raised by the petitioner that AAIFR is bound by the Government Resolution. The said Government Resolution is only guidelines for Government and it will not restrict the power of AAIFR. 10.8 It is also required to be noted that upon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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