Heard Sri H.N.Pandey learned counsel for the petitioner , learned standing counsel for respondent Nos. 1,2,3 and 5, Sri Anil Bajpayee for respondent No.4 and Sri T.P.Singh Senior Advocate, assisted by Sri Siddharth learned counsel for respondent nos. 6 and 7.
The relevant facts of the case are that Naini Glass Works Private Limited respondent no.4 is a company registered under the 'Companies Act' having its factory and head office at 92 Chak Ataullah Naini, Allahabad. Due to shortage of coal which is the primary requirement for functioning the furnaces meant for melting the glasses and other factors, it became impossible for the company to run the glass factory. As consequence in March 1978 the company was left with no option but to close down the furnaces and stop manufacturing process in the company with effect from 25th March 1978 and lay off the workmen on account of non supply of coal. Accordingly a notice of lay off was given to the workmen on 24.3.1978 . The lay off continued from time to time by further notices. However, eventually the application moved on behalf of respondent no.4 for permission to lay off for the period 24.3.1978 to 7.5.1978 was rejected illegally by the labour commissioner. Upon receiving the order of the labour commissioner dated 7.5.1978 the respondent no.4 again moved an application on 9.5.1978 for permission of lay off in the prescribed format for the subsequent periods 8.5.1978, 8.7.1978, 8.7.1978 10.9.1978 to 30.11.1978 on 8.5.1978, 5.7.78 and 17.11.1978. The said applications remained pending before the Deputy Labour Commissioner but when the respondent no.4 failed to arrange finance for re-opening the factory, the respondent no.4 gave notice on 5.10.1977 for closure of the factory. Thereafter the Deputy labour commissioner issued letters to the respondent no.4 on 27.10.1977 purporting to be under Section 4 of the U.P. Industrial Peace and timely payment of Wages Act 1978, (U.P. Act No.5 of 1974), requiring the respondent no.4 to produce the records pertaining to the wages to the workmen, upon receiving the said notice the respondent no.4 produced the record pertaining to the wages of the workmen and filed statements showing the amount payable as wages and lay off compensation. The deputy labour commissioner thereafter issued a recovery certificate to the collector/ District Magistrate, Allahabad under Section 3 of the U.P .Act No.5 of 1978 requiring him to recover a sum of Rs.4,80,000/ as arrears of wages payable to workmen employed in the establishment of respondent no.4. The respondent no.4 challenged the said recovery certificate before this court in Civil Misc. Writ Petition No.504/1978 and obtained an interim order. It appears that the said writ petition was dismissed in default on 6.5.2003. Where -after Naini Glass Works Majdoor Union Naini, Allahabad filed the instant writ petition before this Court for following reliefs:
"1) issue a writ order or direction in the nature of mandaums directing the District Magistrate Allahabad to recover the outstanding dues Rs.5,28,000/ as Land Revenue.
2. issue a writ order or direction in the nature of mandamus directing the Deputy Labour Commissioner Allahabad to issue a fresh recovery certificate for realising of the outstanding dues.
3. issue a writ order or direction in the nature of mandamus directing the District Magistrate, Allahabad to ensure that the possession of the Factory site situated plot no. 80 and 81 village Chak Lal Mohammad may not be handed over to any one till the clearance of the employees outstanding dues and other consequential benefits.
4. issue any other writ order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case.
5. award the cost of thee writ petition to the petitioner " In the said writ petition following interim order was passed by this Court on 11.5.2005 " Hon.Arun Tandon J.
From the record it is apparent that an order was passed by the Deputy Labour Commissioner, Alahabad(respondent no.3) dated 6th November 1978(Annexure 3 to the writ petition) requesting the District Magistrate Allahabad (respondent no.2) to recover a sum of Rs.4,80,000/ under the provisions of U.P.Act No.5 of 1978 as arrears of land revenue. The said order was challenged by M/s Naini Glass Works Proctor Ltd, Naini, Allahabad by means of the writ petition no.504 of 1979. The writ petition was dismissed under order of this Court dated 6th may 2003. On dismissal of the said writ petition the petitioner again approached the District Magistrate to enforce the recovery in terms of the recovery certificate issued by the Deputy labour Commissioner dated 6th November 1978.
It is surprising till date the District Magistrate , Allahabad has not taken any step for enforcing the said recovery against the employers. List on 19th May 2005.
Learned standing counsel is directed to to file an affidavit of the District Magistrate, Allahabad or some other responsible officers of the State of U.P. categorically disclosing as to why the recovery in pursuance of the recovery certificate issued by the Deputy Labour Commissioner dated 6th November 1978, has not been enforced till date. A copy of this order shall be supplied to the learned standing counsel by tomorrow i.e. 12.5.2005.
11.5.2005"
Pursuant to the aforesaid order plot nos. 80-81 situated in Chak Ata Ullah, Pargana Arail, Tehsil Karchhana, District Allahabad, ( hereinafter referred to as the 'disputed plots'), were put to auction sale. However, before the auction could take place an application was moved on behalf of Sahyog Sahkari Samiti and its Secretary yadunath for being impleaded as respondent nos. 6 and 7 in the writ petition on the ground that they were bonafide purchasers of the disputed plots in redemption of mortgage created by directors of respondent no.4 who were the owners of the disputed plots in favour of the State Bank of India, for securing loan obtained by the respondent no.4 company. The said application was allowed. The Society and its Secretary Yadunath were impleaded as as respondent nos. 6 and 7 and thereafter on a statement of counsel for the newly impleaded respondent nos. 6 and 7 before this Court an order dated 10.11.2005 staying the auction sale of the disputed plots which was scheduled to take place on 14.11.2005 was passed subject to the respondents no.6 and 7 depositing the entire amount due to the respondent no.4 the petitioner of writ petition No.11101/2005 within a week.
Pursuant to the aforesaid order the respondent no.6 deposited the sum of Rs.5 lacs with the District Magistrate/Collector Allahabad. The respondent nos. 6 and 7 allege that the respondent no.4 company was never the owner of plot nos 80 and 81. and the said plots belonged to the directors of the company, who had jointly mortgaged the disputed plots with the State Bank of India as security for the repayment of the loan obtained by the Company.
The aforesaid loan could not be repaid and there was a default in the repayment of the loan amount. In order to liquidate the outstanding dues the directors of the respondent no.4 entered into a registered agreement for sale of the disputed plots on 6.10.1999 with the respondent no.6 on the condition that the respondent no.6 will deposit the amount of Rs.25 lacs which was outstanding against the directors. The Branch Manager of the concerned branch of the State Bank of India, was also informed of the manner in which the directors proposed to clear outstanding dues i.e. 25 lacs would be deposited by the respondent no.6 and balance of Rs.4.7 lacs would be paid by the directors of the company who were the owners of the land and the State Bank of India accepted the proposal forwarded by the directors and entered into an agreement with the directors of the respondent no.4 company on 23.2.2003 agreeing under one time settlement on payment of Rs.29.7 lacs to the bank by the directors. The entire amount was deposited in the bank against the loan whereupon no dues certificate was issued by the Bank. The disputed plots were transferred by the directors of the respondent no.4 in favour of respondent no.6 by sale deed dated 9.7.2001. The respondent no.6 after getting its name mutated in the revenue records sub divided the disputed plots into several sub plots and transferred them in favour of different persons and the names of the transferees were also mutated over the respective plots purchased by them.
Leaned counsel for the petitioner has submitted that the dues of the employees of the respondent no.4 are liable to be recovered from the sale of the disputed plots. He has further stated that the claim put forward by the respondent nos. 6 and 7 that the disputed plots did not belong to the company but are the personal properties of the directors of the company, is absolutely false and incorrect. He further submitted that the disputed plots were deliberately transferred by the directors of the respondent no.4 to avoid the payment of lawful dues of the workmen of respondent no.4.
Learned counsel for the petitioner also submitted that the dues which have been sought to be recovered relate to the period prior to the date on which the disputed plots were transferred in favour of respondent nos 6 and 7 and even if it is assumed though without admitting that the owner of the disputed plots are the directors even then the recovery of dues from the directors of the company in several cases has been permitted to be made and thus the arrears of the wages of the workmen of the respondent no.4 company are liable to be recovered from the disputed plots.
Sri T.P.Singh learned counsel for the respondent no.6 and 7 vehemently urged that the respondent no.6 is bonafide purchaser of the disputed plots for valuable consideration and the outstanding dues of the employees of the respondent no.4 can not be recovered from the disputed plots.
Sri T.P.Singh next submitted that whether charge created on the disputed plots for payment of the arrears of wages of the employees of the respondent no.4 can not be enforced against the respondent no.6 who is a transferee of the disputed plots and being a bonafide purchaser for valuable consideration, is entitled to get benefit of Section 15(1)(g) of the Transfer of Property Act.
After considering the submissions made by the learned counsel for the parties and perused the record of the writ petition I am of the view that the submissions raised by the learned counsel for the parties raise an issue of fact with regard to the ownership of the disputed plots which requires taking of evidence and writ proceedings are not the appropriate forum for deciding the said issues.
The main question which is to be decided is that - whether disputed plots were the self acquired properties of the directors of the company or the company was the owner thereof. There is no material on record filed by either of the parties on the basis of which the court may decide the said issue.
In my opinion the Collector/ District Magistrate, Allahabad who is executing the impugned recovery certificate issued by the deputy labour commissioner under section 3 of the Act No.3 (Timely Payment of wages Act 1979) can look into the question and decide the same after affording opportunity to all concerned to lead evidence in support of their respective claims. The amount of Rs.5 lacs which has been deposited by the respondent no.4 pursuant to the order of this Court dated 14.11.2005 with the collector/district magistrate, Allahabad shall be kept by him till the matter is decided by the collector/district magistrate.
With the consent of learned counsel for the parties, this writ petition is finally disposed of with the following directions:
1.The petitioner as well as the respondent Nos. 4 and 6 Sahyog Sahkari Samiti shall set up their respective claims by filing representations before the respondent no.2 collector/ district magistrate, Allahabad within a period of two weeks from the date of issue of certified copy of this order , raising all the grievances which have been raised by them before this Court alongwith the material on which they propose to rely.
2. The respondent no.2 shall issue notice to the State Bank of India requiring the Manager of the concerned Branch to produce the mortgage deed executed by the directors of the company for securing loan obtained by them in respect of the plot nos. 80 and 81 situated in chak Ata Ullah Naini, Pargana Arail, Tehsil Karchhana, District Allahabad.
3. The respondent no.2 shall consider the matter in accordance with law and decide the same by a reasoned and speaking order within a period of three months from the date of filing of representations as indicated herein above.
It is made clear that if any constructions are raised by the transferees from the respondent no.7 on the disputed plots, the same shall be at their own risk and shall abide with the final orders which may be passed in the matter by the collector/district magistrate, Allahabad. Order Date :- 2.4.2010 cps