- (1.) DEVI Prasad Singh, J. Whether non-compliance of provision contained in Chapter X Section E of U. P Zamindari Abolition and Land Reforms Rules, 1952 (in short here in after referred as the Rules) shall render the auction and sale of a property illegal and void, is the question involved for adjudication in the present proceeding. Apart from Rules the provision contained in Order XXI Rule 54 of Code of Civil Procedure and the provision contained in Chapter X read with Section 327 of the U. P Z. A. and L. P. Act, 1950 (in short here in after referred as the Act) and certain other statutory provisions have been invited the attention of this Court for interpreta tion which relates to procedure for recovery of dues as arrears of land revenue.
(2.) M/s. Swadeshi Polytex Limited (hereinafter referred to as the SPL) is a company incorporated under the provisions of the Companies Act, 1956 (here in after referred to as the Com panies Act) and has its registered office at Kavi Nagar, Industrial Area, Ghaziabad. While 33. 609% of the shares were held by Swadeshi Cotton Mills Company Limited, Kanpur, (an unit of National Textile Corporation a Government of India enterprises) 28. 0218% share are held by M/s. Paharpur Cooling Towers Ltd. the 15. 290% of the shares are held by the Financial In stitutions and the remaining 23. 0922% shares are held by the general public PCT is also a company incorporated under the provision of the Companies Act and has its registered office at Kolkata. Swadeshi Cotton Mills. Ltd. Kanpur, as stated above, held 33. 609% share of SPL but by virtuo of nationalisation, the shares of Swadeshi Cotton Mills Limited, were transferred in the name of National Textile Corporation Limited, (hereinafter referred to as 'ntc' ). From the evidence on record (Annexure -34 ). it borne out that CMD, National Textile Corporation Ltd. is hold ing charge of the petitioner company and has taken steps by pursuing the Central Government for the rehabilita tion of the petitioner company. According to petitioner's Coun sel, Shri N. K. Seth, petitioner company was doing well till 1996-1997 but on ac count of financial crisis and under cer tain compelling circumstances it was closed on 30th September, 1998. The SPL could not pay wages to the workers and application was filed on 28-12-1999 before Deputy Labour Commissioner Ghaziabad for payment of wages of December, 1998 to September, 1999. Again application was filed in the month of February, 2000 by respondent No. 8 in pursuance to provision contained in Uttar Pradesh Industrial Peace (Timely Payment of Wages) Act, 1978. In response to application submitted by respondent No. 8 workers, recovery certificate was issued under sub-sec tion (1) of Section 3 of the 1978 Act, Ac cording to petitioner's Counsel the recovery certificate was issued ex pane as no notice was served on occupier of the company in pursuance to provision contained in Section 4 of the 1978 Act. An objection was filed under Rule 285 (i) of the Rules which was dismissed by the Commissioner, Meerut Division, Meerut. A revision against the order passed by the Commissioner, Meerut Division, Meerut, was also dismissed by Board of Revenue. Feeling aggrieved, the present writ petition has been preferred by the petitioner. The facts and pleadings as argued and relied upon by the parties are discussed hereinafter.
(3.) UNDER the above facts and cir cumstances, application submitted by respondent No 8 under 1978 Act was allowed by Deputy Labour Commis sioner, Ghaziabad in pursuance to power conferred under sub- section (1) of Section 3 of the 1978 Act, copies of the recovery certificates have been filed as Annexures 3 to 7 to the writ petition. When the amount could not be satisfied and wages could not be paid on the ref erence made by the Deputy Labour Commissioner, the district authorities had proceeded ahead to recover the dues in pursuance to recovery certifi cate issued by the Deputy Labour Com missioner as arrears of land revenue. The copies of demand notice/citation to appear have been filed as Annexures 8 to 15 to the writ petition. Thereafter, on the basis of report submitted by the Amin dated 7-1 2005 (Annexure-16) and the report of Sub-Divisional Magistrate, Ghaziabad dated 10-2-2005 (Annexure-17), an attachment notice (Annexure-18) was issued in ZA Form 73-D. A proclamation of sale was issued on 23-2-2005 (Annexjre-19 ). The Sub Divisional Magistrate had how over, cancelled the proclamation dated 23 2 2005 and considered the matter afresh and had passed an order dated 1 4 2005 (Annexure-20) appointing the Tehsildar, Ghaziabad as an officer to hold auction. By the same order, 2nd May, 2005 was fixed as a date of auction directing the Tehsildar to give wide publicity relating to advertisement and also evaluate the properties. However, on the same day, fresh sale proclama tion was is Lied by the Sub- Divisional Magistrate. Ghaziabad (Annexure-21) without disclosing the estimated costs and specifying the property in question. The sale proclamation also does not disclose the date of auction. In conse quence there of, an auction notice dated 2242005 was published in Hindi Newspaper "amar Ujala" (Annexure 22) indicating the estimated cost as about 27 crores with the rider that the transfer of property in pursuance to auction shall be done on the terms and condition provided by U. P State Industrial Development Corporation (in short here in after referred as UPSIDC ). Admit tedly, the advertisement has been done in only one newspaper "amar Ujala" (Hindi) in its edition dated 22-4-2005. The personal service of the sale proclamation was done on peon/chowkidar of the petitioner establishment on 21-4-2005 as appears from the- en dorsement made over the back of sale proclamation, a copy of which has been filed as Annexure-21 to the writ petition. Auction was held on 2- 5-2005 and UP SIDC was found to be highest bidder. It has been brought on record that the issuance of recovery certificate by Deputy Labour Commissioner under the 1978 Act was subject matter of dis pute in a Writ Petition No. 5160 of 2005 filed in this Court at Allahabad which was dismissed by Division Bench of this Court by judgment and order dated 31-1-2005, a copy of the judgment has been filed as Annexure-CA 1 to the counter-affidavit filed by respondent No. 8. The judgment of the Division Bench was affirmed by Apex Court by dismissing the special leave petition at admission stage (Annexure CA-2 ). The auction notice dated 22-4-2005 publish ed by the Tehsildar, Ghaziabad was im pugned in a Writ Petition No. 35005 of 2005 in this Court at Allahabad, which was dismissed by judgment and order dated 4-5-2005, a copy of which has been filed as Annexure-CA 6 of the counter-affidavit filed by the respondent No. 8. As shall be evident from discus sion here in after while dismissing both these writ petitions the Division Bench of this Court had observed that for pro cedural illegality H shall be open to the petitioner to file an objection under Rule 285 (i) of the Rules.;