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TMI Blog2020 (10) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... tions (2) and (3) of section 4 of the Act and shall not come into effect except with the approval of the Central Government in writing. The proviso to the said section says that no such approval will be necessary when the only change in the name of the company is deletion therefrom or addition thereto of the word private consequent on the conversion of any one class of the company to another class in accordance with the provisions of the Act. Thus, any change that is brought about in the name of a company by either deletion or addition of the word private would not require written approval. What appears to be the legal position from reading the aforesaid sections is that mere change in the name of company from public to private would not tantamount to a change in the constitution of the company since this is brought out only with a view for the purpose of complying with the requirements viz-a-viz the government under the Companies Act. There is no change in the constitution thereof. Accordingly, the stand of the corporation for levying of transfer fees is bad. Non utility charges or penalty for non utilisation of plots - HELD THAT:- It is evident from reading the notification of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the Companies Act, 2013. 2.3 The petitioner made an application on 20.11.2017 to the respondent GIDC to amend the name in the records. The petitioner received a letter dated 10.04.2018, which is impugned in this petition as well as the other petition albeit for different amounts demanding transfer fee and non utility penalty. In the facts of this petition the demand was ₹ 91,56,140/- towards transfer fee and ₹ 1,83,12,280/- towards nonutility penalty. 3. Mr. Navin Pahwa, learned Senior Advocate with Mr. Chaitanya Joshi, learned advocate for the petitioner made the following submissions: (I) As far as the issue of non utility penalty is concerned, Mr. Pahwa submitted that as a result of a moratorium of the Ministry of Environment and Forests issued vide notification dated 25.08.2009, the plot allotted could not be used. (II) The notification dated 25.08.2009 kept all activities in the Ankleshwar GIDC in abeyance as a result of environmental issues which were only lifted by a notification dated 25.11.2016. The petitioner therefore as a result of force majeure could not utilise the plot for such purposes and the the non utility penalty was unjustified. The plo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 26.10.2017 and the environmental clearance was granted only on 31.12.2019. With respect to the plot at Panoli the environmental clearance was granted on 14.04.2018. 3.1 In support of his submission on the issue of transfer charges, Mr. Pahwa relied upon the following decisions: (a) Anup Industries Ltd. vs. State of Gujarat reported in (2002) 3 GLH 303. (b) Hasmukhbhai Dhanjibhai Zaveri vs. Parthsarthy reported in 1971 GLR 128 (paras 14:16 to 19) in support of his submission that the orders had serious civil consequences and so could not have been passed without giving an opportunity of hearing to the petitioner. (c) Kothari Filaments and Another vs. Commissioner of Customs (Port) Kolkata and Others (2009) 2 SCC 192. 4. Mr. Rajesh Dave, learned advocate for the respondent GIDC in both the petitions made the following submissions: (I) Relying on the letter of the GIDC and reply filed, Mr. Dave submitted that reading of the policies would indicate that what in fact occurred was a change in substantial shareholding pattern. The policy exempts levying of transfer fee only when 100% shareholding remains the same and only then the application can be considered in the "change ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd 9.73 11 Bimla Jhaver 1.63 12 M/s. D.K. Securities Pvt. Ltd 4.56 13 M/s. Jhaver Mercantile Pvt. Ltd. 7.64 14 M/s. RSJK Project Consultancy Pvt. Ltd. 0.6 15 M/s. Sri Hari Agencies Pvt. Ltd. 0.6 16 M/s. Southern Group Industries Ltd. 1.42 17 M/s. Madhu Commercials Ltd. 0.89 18 M/s. RSRK Mercantile Pvt. Ltd. 0.6 19 Abhimanyu Jhaver 0 Total 100 5.2 Thereafter the percentage shareholding of TAGROS Chemicals India Private Limited was as follows: Sr. No. Name of Shareholder Percentage of shareholdings Jan - 18 1 R.K. Jhaver 1.49 2 Parikshit Jhaver 3.06 3 M/s. TIL Healthcare Pvt. Ltd. 49.02 4 M/s Okley Bowden & Co. Pvt. Ltd. 3.54 5 D.K. Jhaver 3.54 6 J.K. Jhaver 0 7 Kapil Jhaver 3.06 8 Srikanta Jhaver 6.11 9 Manju J Jhaver 0 10 M/s. RSVK Mercantile Pvt. Ltd 9.73 11 Bimla Jhaver 1.63 12 M/s. D.K. Securities Pvt. Ltd 4.56 13 M/s. Jhaver Mercantile Pvt. Ltd. 7.64 14 M/s. RSJK Project Consultancy Pvt. Ltd. 0.6 15 M/s. Sri Hari Agencies Pvt. Ltd. 0.6 16 M/s. Southern Group Industries Ltd. 1.42 17 M/s. Madhu Commercials Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act and shall not come into effect except with the approval of the Central Government in writing. The proviso to the said section says that no such approval will be necessary when the only change in the name of the company is deletion therefrom or addition thereto of the word 'private' consequent on the conversion of any one class of the company to another class in accordance with the provisions of the Act. Thus, any change that is brought about in the name of a company by either deletion or addition of the word 'private' would not require written approval. 5.6 What appears to be the legal position from reading the aforesaid sections is that mere change in the name of company from public to private would not tantamount to a change in the constitution of the company since this is brought out only with a view for the purpose of complying with the requirements viz-a-viz the government under the Companies Act. There is no change in the constitution thereof. Accordingly, the stand of the corporation for levying of transfer fees is bad. 6. As far as the case of non utility charges or penalty for non utilisation of plots is concerned, it is evident from reading th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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