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TMI Blog2018 (11) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... on of priorities or any other question, whatsoever, whether of law or fact, which may relate to or rise in the course of the winding up of the Company. The question of illegal demolition and theft of the Company has arisen in the course of the winding up of the Company. The objections of learned Advocate General are therefore, rejected out right, not only on the ground that they lack merit but also because, prima facie, they appear to have been raised, malafide, and only with a view to protect the perpetrators of the illegal demolition and theft This Court also finds substance in the contention of Shri Gopal Verma that the police has failed to interrogate the persons, whose photographs were provided by the Official Liquidator. Various photographs have been provided by him to the Court also. This Court also considers it necessary to note that the counsel appearing for the State have been consistently praying for further time. Even the Principal Secretary(Home) after being asked by the Court, as to whether, he was aware of the seriousness of the matter stated that he had been apprised of the situation. He thereafter made a prayer for two months further time for carrying o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . For the Petitioner : Gopal Chandra Saxena,A.N. Mishra,A.N. Mitra,Aditya Pandey,Ajal Krishna,Ashwaini Mishra,Ashwani Mishra,B. Raj,B.K. Jha,Brij Gopal Tripathi,Brijesh Kr. Pandey,Jeetendra Pandey,Krishna Mohan,Manish Goyal,Navin Kr. Srivastava,Nimai Dass,Nirbhay Kumar,O.L. O.P. Sharma,P.K. Ganguly,P.K. Sinha,Piyush Bhargava,Prakash Chandra Srivastav,Raj Nath N. Shukla,Rajeev Gupta,Rakesh Chandra Tiwari,Rakesh Kr. Pandey,Rakesh Kr. Yadav,Ram Kaushik,S. Jaiswal,S.R. Yadav,Sachindra Mohan,Sundeep Agarwal,V.K. Ganguly,Vishnu Kesarwani,Y.S. Saxena For the Respondent : J. Nagar,Arun Kumar Singh,B.K. Tewari,Binod Kumar Jha,C.B. Yadav,C.P. Singh,C.S.C.,Diptiman Singh,Kushal Kant,Miss Bushra Marium,Navin Sinha,O.L. M.K. Bagari,O.L.B.K.L. Srivastava,P.K. Mukherji,Prateek Kumar,R.K. Pandey,Rahul Sahai,Rajnath N. Shukla,Ram Krishna,S. Narain Sinha,S.S. Yadav,Siddharth,T.P. Singh,Taria Naiyer,U.P. Singh,V.K. Srivastava,V.K. Tiwari,V.V. Tiwari,V.V.Tiwari ORDER Anjani Kumar Mishra,J. M/s Mitra Prakash Ltd. is under liquidation, pursuant to the order of its winding up, passed on 23.05.2005, the Official Liquidator appointed its liquidator and the assets of the Company ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of property in the custody of the Court. However, on a query by the Court, it was stated that one Robin Sharma had been arrested and subsequently let off on a personal bond. Robin Sharma was also stated to have informed that the demolition was carried out on the instructions of one Rakesh Kumar Gupta. Since, despite the above information, the police had not been able to trace out or arrest Rakesh Kumar Gupta, who according to them, was responsible for the illegal demolition, the Court granted 48 hours time for the said purpose. The persons, who according to the police were responsible for demolition were directed to be produced before the Court on the next date, namely, 06.09.2018. On 06.09.2018, two persons, namely, Robin Sharma and Rakesh Kumar Gupta, who produced before the Court. Their statements made in Court are recorded in the order passed on the said date. More importantly, Rakesh Kumar Gupta had stated that he had never visited the site of demolition. Since, certain photographs had been filed by the Official Liquidator showing persons carrying out demolition and the Court was also informed that the iron girders put in place to support the roof of the structur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eared in the matter and sought an adjournment on the assurance that he would make efforts to ensure that a proper report was filed. This was so because the report submitted by the S.H.O. Mutthiganj on that date was found highly unsatisfactory, as it was almost entirely a narration of the history of the Company petition. The matter was accordingly adjourned for 27.09.2018. On 27.09.2018, further time was sought for a report as the Court was informed by Shri Manish Goyal that he had held a conference with the concerned Officials till late the previous night and action in pursuance thereof was being taken. The matter was therefore, adjourned for 01.10.2018. Since, the hearing could not be held on 1.10.2018, the matter was fixed for 03.10.2018, on which date, the matter was again adjourned for 04.10.2018 and then again to 05.10.2018. On 05.10.2018, a reply was filed Shri Anoop Trivedi, Counsel for the Nagar Nigam, Allahabad and Shri Gopal Verma, Counsel for the Panchayati Akhada sought time to examine the same. The matter was therefore, ordered to be put up on 08.10.2018. On 08.10.2018, Shri Anoop Trivedi, counsel for the Nagar Nigam, Allahabad was directed to produce the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... His first contention is that the Official Liquidator has failed to perform his duty of providing adequate security to protect the assets of the Company (in liquidation) and, therefore, demolition has been occasioned. The second contention is that the Company Court exercising jurisdiction under the Companies Act, 1956 is only competent to get an FIR lodged as has been done in the case at the hand.Thereafter, the Company Court has no role to play in the matter and it is for investigating agency to investigate the matter, in any manner, it thinks fit. Reliance has been placed upon the decision of the Supreme Court in D. Venkatasubramaniam Ors. vs. M.K. Mohan Krishnamachari Anr. : 2010 (1) JIC148 (SC) especially in para 2 thereof. The next contention of the Advocate General is that in the incident no offence has been committed against the Company (in Liquidation) and in case any offense has been committed, the jurisdiction lies with the Magistrate, concerned. The Company Court has no role to play in the matter. It cannot issue any directions as to how the investigation agency should proceed. This Court had directed to the SHO to obtain police remand of the persons alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of order on 22.10.2018 on which date, the Officers who are present in person shall again remain present, along with the report of the further investigations, for which time has been sought by the Principal Secretary. His initial prayer was for the grant of two months further time for completing the investigations. From the order quoted above, it emerges that the State of U.P., represented by the Advocate General, is aggrieved by the directions that have been issued by this Company Court through the various orders noticed above. It is his case that such directions cannot be issued by the Company Court and are wholly without jurisdiction. The second limb of his argument is that the building in question, in any case, was in dilapidated condition and therefore, necessarily required demolition because several dilapidated buildings in the State of U.P. had fallen down resulting in loss of life and property requiring directions from the Highest Level for demolition of such dilapidated buildings. Learned Advocate General by the above noted succinct argument is in effect justifying the demolition of the building, which is admittedly in the custody of the Company Court, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dilapidated house of Maya Press is not sealed under the orders of the High Court and that a copy of the order in this regard shall be produced within two days. Accordingly, a direction has been issued that the dilapidated structure of Maya Press, No.286, Mutthiganj, Allahabad be inspected and the Municipal Commissioner, Allahabad be requested to take suitable action in the matter. There is yet another letter dated 22.03.2018 by the Chief Secretary of the Panchayati Akhara addressed to the Municipal Commissioner / Mayor, Nagar Nigam, Allahabad, wherein permission for demolition of House No.286 and 287 has been prayed for. Thereafter on 12.04.2018, the Chief Engineer, Nagar Nigam, Allahabad wrote to the City Magistrate, Allahabad stating that an inspection was made by an Engineer of the Municipal Corporation whereupon, demolition of the structure is necessary as it is in dilapidated condition. The only material annexed with this letter are photo copies of two photographs, which only reveal that the roof of the structure has collapsed. The Additional City Magistrate-III, Allahabad thereafter on 16.05.2018 has written a letter to the Chief Engineer, Nagar Nigam, Allahabad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner and the District Magistrate as the Assistant Municipal Commissioner had communicated with the Chief Minister's office, directly. On 09.07.2018, the Commissioner, Allahabad wrote a letter to the Municipal Commissioner, Nagar Nigam, Allahabad stating therein that the issues raised by the complaint of the Secretary, Panchayati Akhara vide application dated 19.01.2018 have not been resolved completely. It states that it does not appear feasible that the building of Maya Press can be repaired. This building is alleged to have been leased out by the Akhara and since the lessee has become insolvent, the building has been sealed by the Official Liquidator and that this information displayed in front of the building. This letter also states that the identical facts have been stated by Jagtar Muni in his application dated 19.01.2018. This letter also states that the Official Liquidator has been informed that he has stated that he has intimated the Company Court in this regard. As soon as, the orders are passed, the same shall be communicated. Finally, a direction has been issued that the dispute has not been resolved fully and that it should be resolved and a report b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion) has a lien over the property in accordance of judicial orders passed in this regard. There is yet another next aspect of the matter. The Akhara claims to have let out the land to Maya Press. However, when the Official Liquidator invited claims, no claims has been lodged by the Panchayati Akhara. Even if, it is assumed and accepted that the Akhara had let out the land, its actions are geared towards getting back possession, illegally and in this endeavour, the District Administration and Municipal Corporation and the office of the Chief Minister have extended all possible help to the Akhara. On receipt of the information that the demolition was actually being carried out, the F.I.R., as noticed above, was directed to be lodged and the police was asked to investigate. The case of the Akhara, at best, is that it had let out the land. It is not their case that any structure had been let out. The structure therefore, necessarily, belongs to the Company (In Liquidation). Not only has the structure been demolished, the rubble and steel girders have been removed, which were the property belonging to the Company (In Liquidation) and the same would have been sold to liqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isters' office and for this reason, the police has failed to act in the matter and has been adopting dilatory tactics. The S.H.O. Mutthiganj had been directed to register an F.I.R. and to investigate the matter. He was required to produce the persons carrying out the demolition before the Court. Providence intervened and this situation did not arise because on the date fixed, the Court was closed. The matter came up again before the Court, two weeks, thereafter. The investigating agency could identify only one person who is stated to have taken the name of another person, both of whom were produced before the Court on its direction. The persons were directed to be produced before the concerned Magistrate and the police was required to obtain their remand and to interrogate them. The police did produce these two persons before the concerned Magistrate, but did not pray for a police remand. Neither the order passed by this Court was produced before the concerned Magistrate and the S.H.O. had the guts to make a statement before this Court that the order passed on 06.09.2018 had been produced before the Magistrate concerned. The S.H.O. therefore, is prima facie guilt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erma, counsel for the Akhada. In case, the Nagar Nigam had no role to play in the demolition, there is no justification why its officers were present on the site. In this regard, there is a report made by the staff, employed in the office of the Official Liquidator, who visited the site after the order was passed on 16.08.2018 and questioned the persons carrying out demolition. They were informed that the demolition was being carried out at the instance of the Municipal Commissioner, Nagar Nigam. Not only has the Municipal Commissioner tried to mislead the Court and has given a prima facie, false letter to the Court, his conduct also shows a totally lack of bona fide because he could have informed the Court that demolition was already being carried out. This would have indicated his bona fides regarding the stand that the Municipal Commissioner, Nagar Nigam, Allahabad or the Nagar Nigam itself was not involved in the demolition. The very fact that it was not brought to the notice of the Court, points to the complicity of the Nagar Nigam and the Municipal Commissioner, Nagar Nigam, Allahabad in the matter. Under the circumstances, a notice is liable to be issued to Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rection to obtain remand was necessary, also because from the various reports brought on record, it transpires that the investigating agency has only been issuing notices to various persons to get their statement recorded. No attempt was made and at least none has been reported that the investigating agency made any attempt on its own to interrogate anyone. The investigation therefore cannot be termed a proper investigation. The police made not attempt, even to interrogate the persons, who as per its own report were responsible for the illegal demolition. It is not their case that the direction to obtain police remand was unnecessary, because even if it was possible to interrogate the persons during his judicial remand, no such attempt has been made by the Investigating Agency. The direction regarding obtaining remand, therefore, cannot be said to be any interference by the Court in the investigation. The only other direction, whereby, learned Advocate General of U.P. is aggrieved is the direction of the Court, upon receipt of information of illegal demolition and theft, issued to the administration to post a police picket to stop any further pilferage of the assets of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tration and in general the entire State machinery is trying to dilute the investigation required in pursuance of the first information report, lodged on the directions of this Court. The attempt appears to be to prevent correct facts being brought forth. On the question of jurisdiction, raised by learned Advocate General, suffice would be refer to the provisions contained in Rule 9 of the Company Court Rules, 1959, which reads as under - Rule-9 - Inherent powers of Court -Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Court to give such directions or pass such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. As already noticed in the body of this order above, the investigation had been ordered because the Company Court found that not only property belonging to the Company (In Liquidation) had been demolished, it had also been stolen. The demolition has undoubtedly resulted in diminishing the value of the assets of the Company (In Liquidation), which will adversely effect the interest of the secured creditors as also the workmen. It would also be relevant to refer to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is also force in the submission of Shri Gopal Verma that in view of the allegations made that the rubble was removed in vehicles belonginig to the Nagar Nigam attempts should have been made by the Investigating Agency to obtain the vide footage from the CCTV's installed in the vicinity of the site of the demolition. This was clearly not done till 22.10.2018. The police cannot claim to be unaware that video footage from DVR's is to be procured promptly, failing which, it gets overwritten within a fortnight or at the most, after a month. The failure on the part of the investigating agency to act promptly was therefore only with a view to allow the evidence to be destroyed. This by itself show that complicity of the police in the matter. The SSP, Allahabad, on 22.10.2018, stated precisely this very fact before the Court. Even though, right from the beginning, the Akhara was sought to be implicated by the police, no attempt was made to question Jagtar Muni on the specious reasoning that he was out of station. Why were the police personnel, including the SSP, shy of interrogating him, despite being fully aware of his whereabouts ? The only conclusion that can be draw ..... X X X X Extracts X X X X X X X X Extracts X X X X
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