Hindusthan Pilkington Glass Works Ltd. (In Liquidation) and Wellworth Vanijya Pvt. Ltd. and Another Vs. the Official Liquidator, High Court, Calcutta and Others - Court Judgment

Excerpt:
west bengal estate acquisition act, 1953 - section 6(3) -ashim kumar banerjee. j. hindusthan pilkington glass works ltd. was a company having its factory on a land comprising of 56.486 cottahs on both sides of the g.t. road at asansol. from the report submitted by the state through additional district magistrate appearing at pages 315-319 of the paper book, following facts would reveal : i) hindustan pilkington was constituted in the year 1951. the said company acquired land through state government in the mouza- asansol and kalipahari. total land would be 54.45 acres, however as per the record of the official liqudiator it was 56.456 acres. ii) the factory was functional up to may 25, 1980 when the company declared lock out, since then the company was closed. iii) on an application for winding up being c.p. 435 of 1985 this court passed an order of winding up on february 28, 1986, coupled with a direction on the official liquidator to take possession of the assets and ultimately put up the assets for sale. there had been protracted litigation. ultimately, sale was confirmed in favour of theappellant along with three other companies vide order dated february 19, 2003 appearing at pages 32-34 of the paper book. the appellant took possession of the assets on february 24, 2003. iv) on may 20, 1980 the assistant settlement officer, asansol issued a notice, asking the company to submit the requirement of land as the company was allowed to retain 45.87 acres, in terms of section 6(3) of west bengal estate acquisition act, 1953 (hereinafter referred to as ‘the said act of 1953’). v) a survey was conducted by the revenue officer on october 26, 2005 when the machineries were not found, though the staff occupied the quarters meant for them. we thus find that as far back on may 20, 1980 the state initiated proceedings under section 6(3) of the said act of 1953. the follow up action was taken in 2005 through spot inspection. from the pleadings it also appears that vide order dated june 30, 2003 the purchaser got the municipal dispute settled by paying corporation dues and got their name mutated in the municipal record. similarly, court passed order on the electricity authority on restoration of electricity. the present issue would relate to the land revenue. on may 19, 2004, the purchaser paid the arrear land revenue without prejudice and prayed for mutation of their name in the record of rights. they also demanded ‘parcha’ to be issued to them, recording their name therein. the state did nothing on the issue. on october 26, 2005 state issued a notice appearing at page-47 of the paper book, asking the company to show-cause why the state would not cancel the permission granted to them to retain additional land measuring 45.87 acres and would not re-possess the same as the surplus land was not being used by the company. the purchaser replied to the said notice by showing cause as appearing at pages 60-68 of the paper book. they explained the reason for delay. they pointed out that trial run of the jute unit was done in march-april, 2005. subsequently, on their request made to the managing director, west bengal industrial development corporation, the corporation permitted them to shift the said project from asansol to belur. since then, no industrial activity was being carried on the said land in question. the machineries had already been removed. on these facts, the purchasers approached the learned single judge after about four years. pertaining to note, official liquidator executed conveyance on may 13, 2005 and thus did not have any further responsibility whatsoever on the asset in question. the sale notice handed over by mr. debojyoti datta, leaned counsel appearing for the official liquidator would reveal, the property was sold “as is where is and whatever there is basis”. after about four years the purchaser approached the learned single judge by filing an application on may 19, 2009 for a direction upon the state to record their names in the record of rights as per the deed of conveyance and in the alternative, to hand over the record of rights after giving effect to the sale. the learned single judge passed an interim order directing the authority to mutate their name upon payment of their outstanding land revenue. pertaining to note, appellant made the application being one of the purchasers. the other three purchasers did not approach. in paragraph-2 the appellant claimed that sale confirmed in its favour. however, we would find that the conveyances were executed in favour of the four purchasers being four limited companies. be that as it may, no explanation was offered as to the delay save and except that the last hearing before the authority was held on july 24, 2006 and the hearing was concluded. the applicant received a further notice on july 17, 2007. the learned judge declined to interfere on the ground that after the sale being closed the company court would not have any jurisdiction to direct the land revenue authority to record the name of the purchaser. hence, this appeal before us. at the initial stage of admission, this court recorded the fact that the appellant would be using the land for industrial purpose. subsequently, matter was mentioned and the order was modified to the extent that the appellant made it clear that they might be going for a housing complex. in this backdrop we heard the appeal on the abovementioned dates. mr. jayanta kumar mitra, learned senior counsel appearing for the appellant contended, once the sale was conducted by the court, it was incumbent upon the court to prefect the title of the purchaser particularly when the purchaser paid as substantial consideration. according to mr. mitra, official liquidator handed over possession in terms of the order of the court. the official liquidator executed and registered conveyance as per the direction of this court. this court resolved the issue on statutory outgoings. municipal corporation already mutated the name as per the direction of this court. hence, the learned judge should not have dismissed the said application by vacating the interim order. mr. mitra relied on a series of orders passed from time to time by the learned judge, taking company matters. he also referred to the reply given by the appellant to the show-cause notice. mr. mitra contended, once the hearing was concluded in 2006, it was incumbent upon the hearing authority to pass appropriate orders, directing mutation. since mutation had already been done this court should confirm the same. he lastly contended, for act of court the litigant should not suffer. he relied upon the decision in the case of a.r. antulay vs. r.s. nayak and anr. reported in all india reporter 1988 supreme court page-1531. mr. mitra relied upon paragraphs 100 and 104 of the said decision to support his contention, for act of court the litigant must not suffer. according to him, the court invited offers by publishing notice in media. being encouraged by the said advertisement, the appellant participated in the sale and became the successful bidder after the sale was affirmed by the apex court in its judgment and order dated february 6, 2003. hence, official liquidator or the court should not avoid their responsibility to perfect the title. opposing the appeal, mr. debangshu basak, learned senior state government advocate contended, the sale was confirmed in 2001. it reached finality through the apex court order dated february 6, 2003. official liquidator executed conveyance on may 13, 2005. hence, no lis was pending before the learned company judge that could attract jurisdiction to entertain the application of the purchaser. referring to the provisions under section 446(2) of the companies act, 1956, mr. basak contended that the question that would arise now would not be available for adjudication before the learned company judge as it admittedly did not occur “in course of winding up”. the state issued notice upon the company on october 26, 2005. by that time, the official liquidator had already conveyed the property to the purchaser. whether the state would be entitled to deny mutation of the name of the appellant in the record of rights or they would be entitled to call back the excess land in terms of section 6(3) of the said act of 1953, would be exclusively within the domain of the state and would not be available for judicial review of the learned company judge. if the appellant would feel aggrieved by any act of the state, it would have the remedy in law to approach the appropriate forum. the company court was not the proper forum. he prayed for dismissal of the appeal. mr. debojyoti datta, learned counsel appearing for the official liquidator submitted a photocopy copy of the sale notice and the terms and conditions of sale that would reveal that the assets were sold “as is where is and whatever there is basis”. mr. datta adopted the submissions made by mr. basak and contended, official liqudiator had hardly anything further to do in the matter. neither the official liqudiator nor the company court could be unnecessarily bothered with the controversy that would be exclusively within the domain of the state. while replying, mr. mitra contended that the purchaser participated in the sale in good faith when the official liquidator on behalf of the company court published notice inviting offers from the intending purchasers. hence, official liquidator could not avoid responsibility to give a legal title to the public. the purchaser paid consideration. if they are divested of the possession that would frustrate the sale, sale was an act of court for which the appellant must not suffer. he referred to the conveyance by saying the conveyance schedule would demarcate the land that was conveyed to the purchaser free from all encumbrances. hence, state was not within their right to call back the land at this stage. we have considered the rival contentions. if we strictly follow the law we would have no other option but to dismiss the appeal in limine. official liquidator put up the property for sale on “as is where is and whatever there is basis” meaning thereby, the intending purchaser would have to satisfy himself about the title, measurement, location of the assets including its nature, character, suitability as well as disability. keeping their eyes wide open, the purchaser purchased this property. they took possession of the assets without any protest. the official liquidator executed and registered the conveyance as far back in 2005. they got the property mutated in the municipal records upon payment of statutory outgoings. at this stage, they would not be entitled to approach either the official liqudator or the company court for further directions. the learned judge rightly dismissed the application that would deserve no interference. the appeal is dismissed without however, any order as to costs. before we part with, we wish to record the backdrop. when the appeal was initially admitted by this court, this court considering equity, keeping it in mind the issue of revival of the industrial unit, wanted to intervene and act as a conciliator between the state and the purchaser. to do substantial justice, we proceeded on that basis. initially, we were prompted to do so when mr. samit talukdar, learned senior counsel categorically contended that purchaser would be utilising the land for industrial purpose. we disposed of the matter. subsequently, mr. talukdar mentioned the matter and contended that he misunderstood his instruction. his client was not willing to go for it. they would be happy to set up a residential complex. we stopped our venture and directed appeal to be heard on merits. even at the start of the hearing, we asked mr. mitra to make up his mind. mr. mitra in his usual fairness, tried to persuade his client, however became unsuccessful. as we have observed at the outset, if we go by strict letters of law, we would have to dismiss of the appeal as we have done herein. however, the court cannot be a mere on-looker when the court would find that some extended blessing and/or persuasion would rather ultimately result to a public good. the revival of an industry would result employment generation. the court must rise to the occasion. we did so. the appellant however, did not extend its support. alas! our attempt failed. we thus conclude as such. urgent certified copy of this judgment, if applied for, be given to the parties on their usual undertaking. shukla kabir (sinha), j. i agree.