(Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) 1. OJ Appeal Nos.73 and 74 of 2004 are filed by the individuals concerned. Whereas OJ Appeal No.72 of 2004 is filed by the Association of the occupants of the Chawl situated in the premises of the Mills Company. These appeals are filed against the order passed in Company Application No.249 of 2001 in Company Petition No.72 of 1991 dated 30.9.2004 (common order under challenge in all the 3 appeals) whereby the learned Company Judge is pleased to observe as under :
“39. Taking overall view of the matter and considering the entire case law on the subject which was discussed hereinabove, the Court is of the view that there is no substance in all these applications filed by the occupants for seeking protection against the eviction. The Company Application No. 249 of 2001 is, therefore, allowed to the above extent. Interim relief granted earlier staying the operation of the order dated 16.12.2002 is vacated. Civil Application No.203 of 2002 which is mainly for joining parties and which is ordered to be heard along with Company Application No.249 of 2001 and which is listed all through out along with this group, is also disposed off since the Company Application No. 249 of 2001 is being disposed off by this common judgment. Company Applications No. 21, 22, 64, 106 and 107 of 2003 are rejected and interim relief, if any, granted earlier is vacated and the Official Liquidator is directed to take possession of the Chawls in question from them forthwith.”
(emphasis supplied)
1.1 It is not in dispute that after the said judgment and order, present appeals came to be filed and at the time of admission of all these appeals, the order came to be stayed. By virtue of that, the appellants have continued to remain in possession of the premises (Chawls).
2. Learned advocate Mr.A.S.Vakil emphatically submitted that this is one case wherein the appellants can legitimately contend that there is gross violation of principles of natural justice qua the appellants. Learned advocate for the appellant in OJ Appeal No.73 and 74 of 2004 and learned advocate Mr.Pahwa for the appellant in OJ Appeal No.72 of 2004 jointly submitted that the learned company Judge passed various orders in Company Application No.249 of 2001 filed by the Textile Labour Association (TLA). It is not in dispute that these orders were directly – adversely affecting the present appellants – occupants of the Chawls. The learned advocates for the appellants submitted that at no stage either TLA or the Official Liquidator deemed it proper to bring these appellants before the Court so that they can represent their case. It is therefore submitted that the orders passed by the learned company Judge are in violation of the principles of natural justice vis-a-vis the appellants. Learned advocates for the appellants invited attention of the Court to the order passed by the learned company Judge first in Company Petition No.72 of 1991 dated 22.11.1991, by which the Mills Company (Amruta Mills Ltd.) was ordered to be wound up. Thereafter Company Application No.249 of 2001 was filed by the TLA. In the said application, the learned company Judge passed various orders which were directly – adversely affecting the appellants, but the appellants were never before the Court.
2.1 The TLA filed its report to the Company Application No.249 of 2001 which is referred to in Para.3.6 of the appeal memo. Thereafter, the order passed by the learned company Judge after considering the Official Liquidator's Report on 5.12.2011 is referred to in later part of Para.3.6. In Para.3.7 the appellants have reproduced relevant part from the Official Liquidator's Report dated 24.1.2002 which was filed after aforesaid order dated 5.12.2001. In Para.3.8 the relevant part of the order passed in Company Application No.249 of 2001 on 12.2.2002 is produced.
2.2 The appellants have then produced the relevant part of Official Liquidator's Report dated 24.7.2002 in Para.3.9 and in Para.3.10, the relevant part of order dated 25.7.2002 passed by the learned company Judge in Official Liquidator's Report is produced. In Para.3.12 the notice issued by the Official Liquidator dated 19.8.2002 is referred to which is purported to have been issued on the basis of the statement recorded in order dated 25.7.2002. Learned advocates for the appellants submitted that this notice was replied by the occupants of the Chawl by letter dated 28.8.2002.
2.3 The Official Liquidator then filed another Report dated 5.9.2002. The relevant part of which is quoted in Para.3.13. The hearing of the Company Application No.249 of 2001 took place and an order was passed on 16.12.2002. The relevant part of which pertaining to the occupants of the Chawl is reproduced in Para.3.14 which is relevant for the purpose of deciding this OJ Appeal. The same is reproduced here for the ready perusal.
“...... (i) In this Company Application the Official Liquidator has filed his report on 5th September, 2002, wherein it is stated that he has received the letter dated 28-8-2002 from the occupants of the chawls stating that they are occupying their rooms since last 15 years and asked for 2 months extension and requested the Official Liquidator to allow them to stay in the chawls on rental basis or they may be allowed to buy the said chawl.
ii) More than two months time has passed and yet nothing is placed on record as to whether the occupants of that chawls have vacated the said chawls. The Official Liquidator is, therefore, directed to issue the notices to all the occupants of this chawl for vacating the rooms. There is no question of allowing them to buy the said chawl at present, as and when the entire property belonging to the company(in liquidation) is sold off this question can be considered by the Court. If the occupants are not vacating the chawl, the Official Liquidator is directed to take appropriate actions in the matter for getting the vacant possession of the said chawl from the said occupants. ”
(emphasis supplied)
3. After the said order was passed on 16.12.2002, the Official Liquidator issued notice/s on 25.12.2002. It is pursuant to this notice that the appellants for the first time appeared before the learned company Judge in Company Application No.249 of 2001 filed by the TLA and prayed for time. The time was granted, giving liberty to the appellants to apply for modification of the order dated 16.12.2002.
4. Learned advocates for the appellants submitted that the appellants of OJ Appeal Nos.73 and 74 of 2004 filed Company Application Nos.21 and 64 of 2003 and so far as appellant of OJ Appeal No.72 of 2004 is concerned, it filed OJ Civil Application No.203 of 2002.
4.1 The order dismissing these Company Applications and OJ Civil Application has given rise to the present OJ Appeals.
5. On perusal of the papers, it is noticed that the order dated 16.12.2002 was passed in absence of the present applicants – appellants and the ground on which the Company Application Nos.21 and 64 of 2003 and OJ Civil Application No.203 of 2002 are rejected by the learned company Judge is under consideration. The same are required to be considered in the light of the fact pointed out by the learned advocate for the appellants in OJ Appeal Nos.73 and 74 of 2004 that is, 'there was a litigation between the Company in liquidation and the applicant – appellant in OJ Appeal No.73 of 2004.' The facts of that suit are set out in Para.3.2 of OJ Appeal No.73 of 2004. For ready perusal, the same are reproduced here :
“After the death of Hathila Dharamji, the Company had filed one HRP Civil Suit No.184 of 1984 (for short 'the Suit') in the Small Causes Court No.11 at Ahmedabad (for short 'the Trial Court') against the appellant and only had prayed for a permanent injunction, restraining the appellant from transferring, assigning etc. the Chawl and from handing over the possession thereof to any other person. The appellant appeared in the Suit and filed his Written Statement dated 2.9.1984.”
5.1 This fact has nowhere come on record not even in the application filed by TLA and or in any of the Reports filed by the Official Liquidator. This shows the degree of care on the part of the Official Liquidator in a crucial matter of deciding the nature of occupancy held by the applicants – appellants of OJ Appeal No.73 of 2004. Be that as it may. The fact remains that the Official Liquidator acted in a mechanical manner and presented, if not wrong facts, definitely incorrect facts before the learned company Judge which made the company Judge to pass orders referred hereinabove. These facts of Para.3.2 of OJ Appeal No.73 of 2004 are not controverted by any of the opponents – respondents. In view of these facts, this Court is of the considered opinion that neither the Official Liquidator nor any other agency can disturb the possession of the applicants – appellants of OJ Appeal No.73 of 2004 or evict them without following the procedure prescribed under the law. The question whether any proceedings can be filed now for evicting the applicants - appellants from when the Company in liquidation had already filed an HRP Suit No.184 of 1984 with a limited prayer i.e. “a permanent injunction restraining the appellant from transferring, assigning etc. the Chawl and from handing over the possession thereof to any other person.” remains to be examined. But before such question is considered and answered by the competent Court, the Official Liquidator cannot act in a manner in which he has acted in this matter. This Court is of the opinion that the grievance of the applicants – appellants requires to be redressed. One of the grievances is that injustice is done to them as orders were passed at their back.
6. Learned advocate Mr.J.S.Yadav appearing for the Official Liquidator invited attention of the Court to Para.3 and 4 of the order passed by the learned company Judge in Company Application No.249 of 2001 (filed by TLA) on 16.12.2002, which reads as under :
“3. It is further stated by the Official Liquidator that he has received a letter from the members of the Textile Labour Association informing that eight houses are illegally constructed in the mill compound. One Mr.Jagdish has given all these eight houses on rental basis and rent is not deposited in the office of the Official Liquidator.
4. It appears that the said eight houses were constructed within the mill compound after the company went into liquidation. The security staff is supposed to take care of the property of the mills’ company and hence, they are supposed to explain as to why the said houses were illegally constructed. The Official Liquidator is, therefore, directed to call for the explanation from the security staff on this point and he is further directed to remove this illegal construction and ask the occupants of this illegally constructed houses to immediately vacate. The Official Liquidator is further directed to inquire as to who is this person Mr.Jagdish, who has given these illegally constructed houses on rental basis and after making necessary inquiry the Official Liquidator is directed to take appropriate action against the person so involved in such illegal activity.”
(emphasis supplied)
6.1 Learned advocate for the Official Liquidator submitted that it is recorded by the learned company Judge that an illegal construction has taken place and that is why the learned company Judge has given necessary directions to see that the persons, who are occupying the said illegal construction, are evicted and necessary action is taken against the person who got such illegal construction put up on the premises of the Mills Company.
6.2 So far as the directions issued by the learned company Judge in this behalf are considered they are not disputed by this judgment as that person viz. Mr.Jagdish is not before this Court as an appellant praying any relief from this Court. The other question which is required to be considered is whether the present applicants – appellants can be put at par with said Mr.Jagdish. Obviously, there is no comparison because it is not the case that the applicants – appellants have put up any construction and that too, illegally. Present applicants – appellants have their own case. They have nothing to do with said Mr.Jagdish. It is not the case of either Official Liquidator or any other party that the present applicants have put up any construction and/or that they are occupying construction which is illegal. Therefore, in the interest of justice, it is required that all these occupants – applicants in Company Application Nos.21 and 64 of 2003 and OJ Civil Application No.203 of 2002 are given an opportunity to place before the learned company Judge all materials available with them for the consideration by the learned company Judge to come to decide the nature of their occupancy, which they are holding being in possession of the premises vis-a-vis company in liquidation and also about their right to continue in possession or in the alternative, their right to become owner of the premises in question.
7. These appeals are allowed. The judgment and order dated 16.12.2002 and 26.12.2002 and the impugned judgment dated 30.9.2004 passed in Company Application No.249 of 2001 are hereby quashed and set aside only qua the applicants.
8. It is required to be clarified that order dated 16.12.2002 does contain the directions pertaining to a person named Mr.Jagdish about whom a finding is recorded that, 'he has put up illegal construction.' So, qua him it will be open for the Official Liquidator to take appropriate action as per the directions issued in the said order (dated 16.12.2002). The Company Application Nos.21 and 64 of 2003 and OJ Civil Application No.203 of 2002 are remitted back to the learned company Judge with a request to decide his own modalities for deciding the aforesaid question viz. 'the nature of possession and right of the occupants etc. as referred hereinabove vis-a-vis the applicants in all the 3 applications.
9. At the request of all the learned advocates including learned advocate for the secured creditors, it is clarified that it will be open for all the parties to place all relevant material in addition to whatever is already placed on the record of these applications.
10. It is reiterated at the request of learned advocates for the parties that present appeals are decided only on the aforesaid point and the Court has not examined any other aspect / the merits of the matters.
(RAVI R. TRIPATHI, J.) (vipul) (N. V. ANJARIA, J.)