V.V.S. Rao, J. - (1.) THIS application is filed by Andhra Pradesh Industrial Infrastructure Corporation Limited (APIIC) under Section 446 of the Companies Act, 1956 ('the Act', for brevity) and Rule 9 of Companies (Court) Rules, 1959 ('the Rules', for brevity), seeking permission to issue orders cancelling allotment of land and resume possession of land admeasuring Acs. 1.22 guntas in survey No. 82/2 situated at Hafeezpet village of Serilingampally Mandal in Ranga Reddy District (hereafter called, 'scheduled land') under the right of re -entry. The applicant seeks to resume possession by resorting to provisions of the Andhra Pradesh Public Premises (Eviction of Unauthorised Occupants) Act, 1968.
(2.) THE fact of the matter is not much in dispute. M/s. Sri Ambuja Petro Chemicals Limited (APCL) is a small scale industry. APIIC allotted scheduled land to APCL on 22 -4 -1989. As per said allotment order, the land was meant for construction of godown and storage tanks. The allottee paid an amount of Rs. 52,324.80 towards full provisional cost. APIIC and APCL entered into an agreement on 16 -7 -1990 and possession was handed over to APCL on 20 -7 -1990. The agreement inter alia provided that allottee company shall commence construction of godown and storage tanks within three months and complete within eighteen months, in default of which vendor was given right to resume possession treating occupation as trespass/encroachment. Agreeing with all conditions, APCL gave Bank guarantee on 22 -8 -1988 for Rs. 14.50 lakhs to meet the enhanced cost of acquisition of scheduled land. There was, however, no enhancement of compensation and thus the allottee is deemed to have paid entire sale consideration of Rs. 52,324.80. Apcl was directed to be wound up by order of this Court dated 10 -4 -1998 in RCC No. 4 of 1997 and OL attached to this Court was appointed as liquidator of the company. The liquidator however did not take any steps till APIIC moved present application. A report is filed on 25 -2 -2004 opposing the application inter alia it is urged by Official Liquidator (OL) that there are interpolations in the relevant clause of the agreement and that the same cannot be given effect to by permitting APIIC to cancel the allotment and resume the land. Another report dated 22 -6 -2006 was filed along with chronological events depicting various stages and steps taken by liquidator. Yet another report was also filed on 14 -7 -2006 with reference to order of this Court dated 22 -6 -2006, directing APIIC as well as OL to locate and identify the land. Revenue officials conducted survey and a report is filed on 28 -7 -2006 by OL stating that Mandal Surveyor has identified and shown the land and that the land admeasuring Acs. 1.09 gts has been encroached upon by third parties, who made constructions thereon.
(3.) LEARNED Standing Counsel for APIIC submits that clause 14(b) of the agreement obliges APCL to obtain necessary approvals from statutory authorities and commence construction of factory building and complete within a period of eighteen months. Under the said clause allottee shall have to utilize scheduled land for the purpose for which it was allotted and if it is not utilized, under clauses 18 and 19, APIIC can resume unutilized land or cancel the contract, treating the allottee as trespasser and take possession of scheduled land. He placed strong reliance on the decision of Supreme Court in Indu Kakkar v. : AIR1999SC296 in support of his contention that such a clause is enforceable in law. Per contra, learned Counsel for OL submits that agreement dated 16 -7 -1990 between APIIC and APCL cannot be given effect to, as there are material alternations in clause 14(b), which are not duly attested or acknowledged by the signatory on behalf of APCL. Secondly he submits that notwithstanding clauses 18 and 19, APIIC cannot cancel the agreement when entire sale consideration is paid and those clauses being unconscionable are void and not binding on the allottee. He placed reliance on the decisions in Estate Officer and Manager (Recoveries), APIIC Ltd. v. : AIR2004AP198 , Teri Oat Estates (P.) Ltd. v. : (2004)2SCC130 and Polymat India (P.) Ltd. v. : AIR2005SC286 .;