Amitava Lala, J. - (1.) Originally there is an application under Section 446(2) of the Companies Act, 1956, read with the Companies (Court) Rules, 1959, which is numbered as Company Petition (hereinafter called as "C P.") No. 142 of 1992 (Ramanlal Madanlal v. Beni Ltd. [2002] 110 Comp Cas 620 (Cal)). Two interlocutory applications being Company Application (hereinafter called as "C. A.") No. 62 of 1999 and Company Application (hereinafter called as "C. A.") No. 568 of 1999 are the subject-matter of due consideration before this Court at present.
(2.) The first application, being C. A. No. 62 of 1999, was taken out by a school known as Elias Meyer Free School and Talmud Torah by the pen of one David Elias Nahoum claimed to be the honorary secretary of the said school. According to him, the school is managed by a managing committee mostly comprising of the members of the Jewish community of Calcutta. Further, according to him, the managing committee is responsible for and authorised to protect the rights and interests of the said school and the properties of the school being the sole beneficiary. The school was formed in the nineteenth century. On March 27, 1912, a deed of trust was created by the members of the managing committee and three persons belonging to the Jewish community were appointed as trustees of the trust. Consequent on resignation of the three trustees on June 16, 1916, an indenture was executed by the retiring trustees and members of the managing committee of the school whereunder the official trustee of the State was appointed as sole trustee of the said trust. On November 17, 1938, one Birendra Chandra Dutta and one Bijoy Chandra Dutta conveyed about 76 bighas and 17 cottahs of land to the official trustee. On June 2, 1950, the official trustee leased out a portion of land comprising of 40 bighas in favour of one M/s. B. M. Singh and Sons, a joint hindu family firm for a period of 51 years which was to expire on June 1, 2001. On March 14,1951, with the consent and approval of the official trustee M/s. B. M. Singh and Sons assigned their leasehold interest to one M/s. Beni Engineering Works Ltd. (now known as M/s. Beni Ltd.) for the residuary period of the lease. On April 15, 1955, the official trustee and/or beneficiary, if any, under the trust lost the right of retention of the aforesaid 40 bighas of land by operation of the West Bengal Estate Acquisition Act. Since the official trustee and/or beneficiary of the trust lost the rights of retention of the land which was leased out to M/s. B. M. Singh and Sons and since such lessees were not in khas possession of the property M/s. Beni Engineering Works Ltd. continued to be in the khas possession of the land in question. By an order dated November 17, 1992, M/s. Beni Ltd. was wound up by the hon'ble High Court at Calcutta, and the official liquidator of the High Court was appointed liquidator of the said company. Such official liquidator possessed all the assets of the company including the premises No. 117 B. T. Road where the factory of the company is situates on such land as aforesaid. An order of sale was made by the High Court including its rights, title and interest in the said property. On October 16, 1995, sale notice was published offering sale of the factory. On March 15,1996, the sale was confirmed in favour of one M/s. Ratnagiri Engineering Pvt. Ltd. for a sum of Rs. 1.57 crores. Such M/s. Ratnagiri Engineering Pvt. Ltd. is also the applicant under C. A. No. 568 of 1999. After receiving Rs. 1.57 crores from M/s. Ratnagiri Engineering Pvt. Ltd. the official liquidator handed over all assets of the company including the said land on August 1, 1996. On February 16, 1998, the official liquidator was directed to execute the conveyance by an order of the court. Leave was granted by a Bench of this Court on April 2, 1998, to execute the conveyance in favour of the purchaser's nominee. On August 12, 1998, the official liquidator informed the official trustee about the execution of deed of conveyance in favour of M/s. Ratnagiri Engineering Pvt. Ltd. as a freehold land. On August 18, 1998, the applicant received the copy of the letter and according to him for the first time he came to know that the official liquidator had taken steps to execute the deed of conveyance in respect of the premises owned by the trust. On September 11, 1998, by an order of the court, the official liquidator was granted liberty to seek legal opinion and on the basis of the written opinion the official liquidator came to know that the company had a marketable title. On February 26, 1999, draft conveyance was sent to the office of the official liquidator. By making this application, in effect, the applicant asked for a relief in the nature of declaration that the land in question is absolutely freehold property held by the trust for the sole benefit of the school with other consequential reliefs.
(3.) On the other hand, in C. A. No. 568 of 1999 the purchaser company and/or its assignee by the pen of one Sri Deepak Agarwal claiming to be the director of the purchaser company contended that the deed of lease in 1950 and the deed of assignment in 1951 were made in respect of the bare land only. The assignee, M/s. Beni Engineering and Works Ltd., now known as M/s. Beni Ltd. was entitled to erect sheds and structures thereon for their industrial purpose. The structure is still in existence. Such M/s. Beni Ltd. continued to remain in possession till when the final order of winding up of the company was passed. The official liquidator took over the possession of the assets of the company and continued to be in possession. The official liquidator took steps to make valuation and published advertisements on all India basis to sell the company. Sale was confirmed in favour of the applicant at a sum of Rs. 1.57 crores. Just after the approval and before making the final conveyance the application being C. A. No. 62 of 1999 was proceeded by the said school with a prayer of handing over the possession of the premises to the official trustee. During the pendency of the proceedings a notice was received by the applicant being dated April 30, 1999, whereunder objections were invited against the proposed decision of the State Government to resume an area of 24.25 acres of land being the surplus of the requirement of the company, i.e., M/s. Beni Engineering Works Ltd. (in liquidation). The Joint Secretary, Lands/Land Reforms Department, Government of West Bengal, called upon the purchaser company in his office for hearing of the matter. As the notice dated April 30, 1999, was received only June 11, 1999, being the date of hearing, the purchaser company wrote a letter saying that they purchased the land free from all encumbrances but the question of ownership of the land is sub-judice under the company application being C. A. No. 62 of 1999 before the appropriate court having company jurisdiction of this High Court. But surprisingly, without hearing the applicant the authority of the State finally held that it is satisfied that the order of resumption of 24.25 acres of land is no longer required for the company for the purpose of running the factory and hence in exercise of the power conferred under Section 6(3) of the West Bengal Estate Acquisition Act, 1953, the Governor of the State of West Bengal had been pleased to resume the said land as detailed in the schedule of the order. The order which has been passed by the authority is totally bad in law. The State did not obtain any leave from the High Court to proceed with this matter which is totally contrary to the scope and ambit of Section 446 of the Companies Act, 1956. Ultimately, the purchaser company by initiating this application prayed before this Court relief in the nature of declaration that the proceeding initiated by the State authority under Section 6(3) of the West Bengal Estate Acquisition Act, 1953, is ab initio void not maintainable in law and liable to be set aside along with the incidental reliefs in connection with the order passed by the authority.;