K.A. Puj, J.
1. Company Application No. 324/94 is filed by one Mr. Narendrasinhji Jagatsinhji Vaghela, seeking direction to the Official Liquidator of Kalol Mills Limited, Kalol to return back to the applicant, possession of that portion of the land which was owned by the applicant and which was not let out by him to the Kalol Mills Limited (in liquidation). The applicant has further prayed for the direction to the Official Liquidator to return to the applicant that portion of the land which was given on rent by the applicant to the Kalol Mills Limited (in liquidation) or in the alternative, to pay rent to the applicant at the rate of Rs. 670.75 p.a. in respect of the said portion of the land which was given on rent to Kalol Mills Limited.
2. The above application was rejected by this Court (Coram: D.A. Mehta, J.) along with 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 in so far 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 therein. The said application was rejected by this Court (Coram: D.A. Mehta, J.) on 28/02/2003 as the Court found that no case was made out for review of the order and judgment dated 30/7/2002.
4. Being aggrieved by and dissatisfied with the said order and judgment dated 28/02/2003, the applicant has filed O.J. Appeal No. 11/03 in Company Application No. 29/03 with Company Application No. 120/03. The said O.J. Appeal was decided and disposed of by the Division Bench vide its order dated 28/3/2003. The Division Bench has quashed and set aside the order dated 28/02/2003 and directed the learned Company Judge to hear the Company Application afresh in the light of the observations made by the Division Bench and after considering the records produced in O.J. Appeal by the learned AGP before the Division Bench. Pursuant to the said order of the Division Bench, the Learned Company Judge (Coram: D.A. Mehta, J.) passed an order dated 12/12/2003 in Company Application No. 28/03 restoring the Company Application No. 324/94 and directing the office to place it for order before appropriate Court as per the roaster.
5. It is in the above background of the matter, the Company Application No. 324/94 is placed before this Court for considering the prayer (A) made in the said application.
6. Company Application No. 244/04 is filed by the Official Liquidator praying for quashing and setting aside the order dated 30th September, 2002 passed by the Prant Officer, Gandhinagar in City Survery/Appeal/ESSAR/53/2001. The Official Liquidator has further prayed for the direction to the Opponent No. 1 and 2 not to implement and act as per the said order dated 30th September, 2002 passed by the Prant Officer, Gandhinagar. He has also prayed for the direction to the opponent No. 2 in the said application to cancel the entry made in the revenue records pursuant to the order dated 30th September, 2002. The Official Liquidator has further prayed for the declaration that the land bearing Survey No. 132 is properly demised by the opponent No. 1 upto Ahmedabad Manufacturing and Calico Printing Company Limited (in liquidation) and properly assigned to Kalol Mills Limited (in liquidation).
7. As far as Company Application No. 324/94 is concerned, Mr. Navin K. Pahwa, the learned Advocate appearing for the applicant has submitted that the applicant's father owned substantial land at Kalol, 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 to the Company under the lease deed. Mr. Pahwa has further submitted that inspite of repeated requests made by the applicant, the Official Liquidator has not taken any steps and hence the applicant was constrained to file the present application before this Court. Mr. Pahwa has further submitted that so far as the land which is in possession of the Official Liquidator and which was not let out to the Company (In Liquidation) is concerned, the possession of the Official Liquidator if that of the encroacher and that the Official Liquidator has no right to be on the said property. The Official Liquidator is, therefore, required to hand over the possession of the said land to the applicant. In support of this contention Mr. Pahwa has relied on the recitals made in the agreement dated 1st February, 1937, wherein while giving description of the boundaries, it is recorded that on western side, remaining land of the even number is situated which is of the ownership and occupation of the landlord. Based on the said recital in the agreement, Mr. Pahwa has submitted that though the land bearing City Survey No. 132 (new) is not in possession of the Mill Company, the said land has been wrongly, illegally and without any basis and on the wrong interpretation of the Official Liquidator of own records as well as the Government records, considered to be the part and parcel of the property of the Mill Company. He has further submitted that the land belonging to the predecessor-in-title of the applicant was originally numbered as Revenue Survey No. 1/1 and the same was admeasured about 20 acres and 32 Gunthas. He has further submitted that original Mill Company i.e. Bharat Vijay Mills Ltd. decided to set up a Mill at Kalol some where in the year 1937 and, therefore, it desired to have land admeasuring 9 Acres and 0 Gunthas out of the Revenue Survey No. 1/1 from the predecessor-in-title of the applicant entered into lease deed with original Mills Company, namely Bharat Vijay Mills Limited and the said agreement has been duly registered before registering authority as stated earlier. The said Deed clearly mentions that the lease entered into by and between the predecessor-in-title of the applicant and Shri Bharat Vijay Mills Limited relates to 17.13 Bigha land which is equivalent to 9 acres and 0 Gunthas forming part of original Survey No. 1/1, totally consisting of about 30.8 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 Mamlatdar, Kalol way back on December 31, 1969.
10. Mr. Pahwa has further submitted that somewhere in the year 1969-70 the State Government took decision to have City Survey of Kalol and the said decision was implemented by the State Government in the year 1973. He has further submitted that even in the City Survey records, which are entirely based upon original Revenue Code clearly reveal that the Mill Company is in possession as a lessee of 9 Acres land only. He has, therefore, submitted that when the City Survey was conducted, the whole of Revenue Survey No. 1/1 was given City Survey No. 129 and 132. The land bearing survey No. 129 admeasuring 9 Acres is in the possession of the Mill Company as a lessee while Survey No. 132 admeasuring about 11 Acres and 32 Gunthas i.e. 28308 Sq. Mtrs. is in possession of the applicant. Mr. Pahwa thereafter referred to and relied on the affidavit filed by one Mr. Shashikant Joshi, power of attorney holder of the applicant, wherein it is stated that as per the map, the land occupied by the Company in liquidation and prepared by the office of City Survey Superintendent Kalol, the land bearing Survey No. 132 is situated on western side of the land leased to the Company in liquidation. While describing the boundaries, it is specifically stated that the land situated on western side is of the ownership of the landlord i.e. the applicant. Considering the boundaries as described in the lease deed, the case of the applicant is further strengthened to the effect that the land situated on the western side of the Mill Company i.e. land bearing Survey No. 132 is not leased to the Company in Liquidation. He has further submitted that in the year 1937, when the lease deed was executed the lands were in agricultural zone and therefore, the lands were given revenue survey No. 1/1. Thereafter, in the year 1973, the subject land came to be covered within the City limits and, therefore, the land was divided in two parts and were given City Survey No. 129 and 132. He has further submitted that before giving the City Survey Numbers, the Inquiry Officer issued notice to the Manager of the Company in Liquidation and did not issue any notice to the land owner more particularly in respect of the land covered by City Survey No. 132. The inquiry officer recorded the statement of Manager of the Company in Liquidation and showed both the lands i.e. the land covered by City Survey No. 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 learnt 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 Superintended 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 had not leased out the land covered by City Survey No. 132 to the Company in Liquidation.
12. Mr. R.M. Desai, the learned Advocate appearing for the Official Liquidator has submitted that the contentions raised and submissions made on behalf of the applicant are absolutely baseless and contrary to the records of the case. He has further submitted that it is clear from the letter dated 1st May, 1997 addressed by City Survey Superintendent, Kalol to the Official Liquidator, Ahmedabad that Survey No. 1/1 was divided into two Survey Numbers one was numbered as 129 and another was numbered as 132. In the year 1973 when survey was conducted by City Survey office, the aforesaid number was given to the original survey number. He has further submitted that the land bearing Survey No. 1/1 referred to in the Lease Deed dated 1st February, 1937 is divided into two Survey Number one bearing Survey No. 129 and another Survey No. 132. The land demised vide lease deed dated 1st February 1937 is numbered as Survey No. 129 and land demised by lease deed dated 12th October, 1919 is numbered as Survey No. 132. So far as Survey No. 129 is concerned, the applicant has admitted that the said land was demised and as per the order passed by this Court on 30th July, 2002, so far as prayer (B) in respect of that land is concerned, the application was rejected. He has further submitted that the Inquiry Officer, City Survey (E.A) Kalol made an Enquiry and passed an Order Marked 'Tharav' and held that two properties are demised to Ahmedabad . He has further submitted that the lease deed registered with the Sub Registrar of Assurances on 4th November 1919 is produced with the documents and in para 4 of the said document, it is recited that after expiry of 99 years on request being made lease will be renewed. Letter dated 28th May 1973 addressed by Kalol Mills to Enquiry Officer at item No. 2 refers to Lease Deed dated 12th October, 1919. He has further submitted that description of the boundaries given in the lease deed of 1937 clearly establishes that over and above the property demised by the said lease deed of 1937, on 12th October 1919 property of the same Survey Nos. was given on lease to the Mill Company. He has further submitted that the land bearing survey No. 132 was demised to Ahmedabad . An indenture dated 25th May 1959 registered 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.Nos. 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 item (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 . and thereafter to Kalol Mills Ltd. and as such Liquidator is entitled to retain the possession of the demised land and is not required to hand over the possession of the said land and is entitled to deal with the same subject to the terms and conditions of the Lease.
14. Mr. Desai has further submitted that one Mr.Bhupendra R. Trivedi, Director of Kalol Mills Ltd., gave a statement to the Liquidator under Rule 130 of the Companies (Court) Rules, 1959 on 20th February 1990, wherein it is stated that outside the Mills premises at Kalol, there is an open land. He has further submitted that pursuant to the direction issued by this Court, reports and value was obtained wherein it was observed that there was one original property in which C.T.S. No. 132 of Kalol was in ownership of Lave Narendrasinhji Jagatsinhji in 1973 and name of Ahmedabad . was shown as a Lessee for 98 years. There was another property Register Card in which on 5th July 1996 certain facts were narrated and a note was put up stating that status of lessee is still there in the name of 'The Ahmedabad .' On the basis of this documentary evidence, Mr. Desai submitted that the applicant is making false statement contrary to the record of the case and claiming the property to which the applicant is not entitled at all.
15. The officers from the City Survey Office, Kalol with original record were also present at the time of hearing of this application and an affidavit was filed by one Mr. K.B. Vyas, City Survey Superintendent, Kalol on 13th October, 2004, wherein it is stated that pursuant to the further investigation and inquiry conducted by him in pursuance of the Prant Officer's order, it has been revealed on observing the village form No. 6, form No. 7/12, Revenue map, city survey map, partition form No. 4 and the measurement sheet etc. that City Survey No. 129 comprises of some part of Revenue Survey No. 1/1 and part of Revenue Survey No. 1/2 and the other City Survey No. 132 is a part of the Revenue Survey No. 1/1 in part. It is further stated that City Survey No. 129 has two parts of revenue Survey No. and 132 has one part of revenue survey No. which are part of 1/1 and 1/2 Revenue Survey No. & 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 No. 133 and 136 survey No. and to the east of the same City Survey No. 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 No. 143 and 133 which is a pond and farm which is R.S. No. 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 No. 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 farm bearing city survey No. 143 and 133 respectively. It is, therefore, clearly stated that the relevant lands are duly leased to the mills. But as on today in records the entry of lease is cancelled as per the order of the Prant Officer. The said Mr.Vyas has made it very clear that his earlier affidavit was filed based on the order of the Prant Officer and according to him that order of the Prant Officer appears to be incorrect in view of the inspection and verification of the relevant records and the order of the Prant Officer would also require necessary rectification.
16. Mr. Hashit Dave, learned AGP appearing for the City Survey Superintendent has therefore submitted that based on further affidavit filed by Mr.Vyas and perusal of relevant records, it is clearly established that land bearing survey No. 129 and 132 were leased to the Mills Company and the applicant's claim is not justified.
17. In Company Application No. 244/04, the Official Liquidator has challenged the order passed by the Prant Officer on 30th September, 2002 mainly on the ground that though the Company went into liquidation, the appellant in that appeal before the Prant officer and the opponent in the present application has not obtained any permission of this Court under Section 446 of the Companies Act, 1956. The Official Liquidator was not joined as a party in that proceeding nor he was heard in the matter. Mr. R.M. Desai, the learned Advocate appearing for the applicant in this application has submitted that the Official Liquidator came to know of the order dated 30th September, 2002 passed by the Prant Officer, Gandhinagar only when the said order was produced by Shri K.B. Vyas alongwith his affidavit dated 27th March, 2003 and copy was furnished to the advocate. Mr. Desai has further submitted that the correct facts were not stated in the said order. It was not mentioned in the application as to who has made the application for cancelling the entry. It was also not stated as to when the applicant has preferred the said appeal. On the perusal of the said order it appears that except hearing the respondent No. 1 i.e. City Survey Superintendent, Kalol and accepting in toto what has been submitted by the said respondent, the said order was passed by the Prant Officer. Mr. Desai has further submitted that even the office of the City Survey Superintendent, who was made 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, inspite 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 decide the issue as to whether a deed of lease has been executed or not. It is not within the jurisdiction and authority of the Prant Officer to decide the issue as to whether any rights of the parties are involved pursuant to the contract entered into between them. Mr. Desai has further submitted that the Prant Officer has not produced the record of the case, which specifically shows that the Survey No. 132 is demised to Ahmedabad ., by the Lease Deed executed in 1919. The duty of the Revenue Authority is to enter the names of the parties in the Revenue Record pursuant to the contract. The Prant Officer, Gandhinagar failed to appreciate that the entry is effected by the City Survey Superintendent only on old Survey No. 1/1 being included in the City of Kalol and being given City Survey No. 129 and 132. Prant Officer, Gandhinagar failed to appreciate that by the said entry no new right has been created in favour of any party. The rights were created pursuant to the deed of lease executed between the parties and if the lease deed in respect of Survey No. 132 would have been produced by the applicant, the Prant Officer on perusal of the same would have been in a position to decide that in fact land is demised by the present opponent in favour of the Mills Company.
20. Mr. Desai has further submitted that inspite of an entry to the effect that the deed of lease was executed somewhere in 1919 by the predecessor in title of Respondent No. 1 in this application in favour of Ahmedabad Calico Mill, the Respondent No. 1 had the audacity to make a statement that no lease deed has been executed. By misrepresentation of facts and suppression of material facts before the Prant Officer, Gandhinagar, Respondent No. 1 had obtained an order in his favour. Even the Respondent No. 2, it appears, had collided with Respondent No. 1 and has not produced the records before the Prant Officer, Gandhinagar.
21. Mr. Desai has further submitted that the Prant Officer, Gandhinagar has no authority to hear the appeal under Rule 108 of Gujarat Land Revenue Rules. Rule 108 of Gujarat Land Revenue Rules does not empower the Prant Officer to quash and set aside or to cancel the contract entered into between the parties which in fact the Prant Officer has done in the said appeal. Mr. Desai has further submitted that it was incumbent upon the respondent No. 1 to intimate to the authority 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 exfacie illegal and contrary to the provision of the Act as well as against the decided case law and hence the order deserves to be quashed and set aside.
22. Mr. Pahwa, learned advocate appearing for the respondent No. 1 has submitted that it is true that the Prant officer has not heard the Official Liquidator before passing the impugned order and also the Official Liquidator was not impleaded as a party in the said appeal. However it is the case of the respondent No. 1 that the land bearing Survey No. 132 was owned and possessed by the applicant and it was never leased out to the Company in liquidation and hence neither the Company in liquidation nor the liquidator is required to be joined as a party in the said appeal. Mr. Pahwa has submitted that even otherwise, the respondent No. 1 has agitated this very issue in Company Application No. 324/94 and if he succeeds in the said application the proceedings with regard to the entry before the Prant Officer became infructuous as they were not survived. In any case, he has no objection if the matter is remanded to the Prant Officer for deciding it afresh after hearing the Official Liquidator in the matter.
23. Mr. D.S. Vasavda the learned Advocate appearing for the Majoor Mahajan Sangh has supported the application moved by the Official Liquidator and submitted that the order passed by the Prant Officer is a nullity and it therefore deserves to be quashed and set aside.
24. Mr. Hashit Dave, the learned AGP appearing for the City Survey Superintendent has adopted his arguments canvassed in Company Application No. 324/94 and submitted that the order passed by the Prant Officer is required to be quashed and set aside.
25. After having heard learned advocates appearing for the respective parties in both these applications and after having perused the record of the case as well as the original record of the City Survey Superintendent, Kalol and after having given serious thoughts to the issues raised before the Court, the Court is of the view that there is no substance or merit in the submission of Mr. Pahwa that the land bearing present Survey No. 132 is not leased out to the Mills Company (In liquidation) and that the applicant is entitled to take back the possession of the said land. The only evidence on which the reliance was placed by Mr. Pahwa is the recital made in the lease agreement dated 1st February, 1937 which states that on the western side of the land, 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 11.08.1969 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 30.03.1996 for cancellation of an entry of the Mills Company from the property card. Though the said entry was cancelled on 05.07.1996, the City Survey Superintendent has cancelled this cancellation entry vide his order dated 26.08.1996. This order dated 26.08.1996 was challenged in an Appeal before Prant Officer on 05.03.2001. Even in this appeal, the applicant has not disclosed the fact regarding pendency of above Company Application before this Court. The said appeal was also got decided by the applicant on 30.09.2002, after the above Company Application was rejected by this Court on 30.07.2002. This whole conduct of the applicant raises very serious doubts and suspicions about the correctness and genuineness of the claim as well as the documents produced by him. The applicant, therefore, does not deserve for any relief either in law or on facts from this Court.
26. As against the case of the applicant, there are several documents which establish the case of the Official Liquidator that the disputed land was given on lease to the Mills Company. Lease Deed dated 01.02.1937 on which the reliance was placed by the applicant clearly establishes that over and above the property demised by the said lease deed of 1937, on 12th October 1919, property of the same survey number was given on lease to the Mills Company. An Indenture dated 25.05.1959 referred to above clearly recited that the Mills Company is possessed of and entitled to leasehold lands bearing Survey No. 1/1 (part) admeasuring 13 Bighas and Survey No. 1/2 (part) admeasuring 19 Bighas 1 Vasa. In the deed of Conveyance, Release and Confirmation dated 23.06.1972, it was specifically shown that there were two separate leases one demised to Bharat Vijay Mills and another to Kalol Mills Ltd. The record of City Survey Superintendent, Kalol supports the case of the Mills Company that the disputed land was leased out to the Mills Company. Based on this record, the affidavit filed by the City Survey Superintendent, Kalol on 13.10.2004 makes it clear that the lands bearing Revenue Survey No. 1/1 (part) and 1/2 (part) were given on lease to the Mills Company by two separate agreements in the year 1919 and the agreement of 1937 gave further land on lease from the same Survey No. 1/1 to the Mills Company and on seeking the description of boundaries given in this agreement, it is obvious that on the western side of the said land is the land bearing City Survey No. 144 which is now Government land and similarly on the southern side, there is pond and farm bearing City Survey No. 143 and 144 respectively. 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 30.09.2002, which is absolutely unlawful and unsustainable on many grounds. First of all, appeal filed by the landlord being opponent 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 material facts. Even on merits also, in light of the discussion made and view taken in Company Application No. 324 of 1994, the Prant Officer is not justified in passing the impugned order. The said order is hereby quashed and set aside. The City Survey Superintendent is hereby directed to cancel the entry made in the Revenue records pursuant to the impugned order dated 30.09.2002.
29. In the result, Company Application No. 324 of 1994 is rejected whereas Company Application No. 244 of 2004 is allowed, without any order as to costs.