P. D. KUDAL, J. - (1.) THESE two company petitions arise out of the same matter and as common questions of law and facts are involved, both these petitions are being disposed of by a single order.
(2.) THE Official Liquidator and M/s Madhu Industries (P) Ltd. , have moved applications under section 446 of the Companies Act, 1956 for quashing the award and proceedings of the Land Acquisition Officer, Collectorate, Jaipur, dated January 30, 1979 in file No. 132/76 for acquisition of all the assets of M/s Madhu Industries (P) Ltd. (In liquidation ). By an order dated March 3, 1970 of this Court M/s Madhu Industries (P) Ltd. came under liquidation and the Official Liquidator attached to this Court and was appointed as liquidator. It has been contended by the Official Liquidator that in view of the provisions of Sec. 456 of the Companies Act, 1956, all assets and properties of the company in liquidation vest in the Official Liquidator. The Ex-management of M/s Madhu Industries reported to the Official Liquidator that at the instance of Rajasthan State Electricity Board, Jaipur, the Land Acquisition Officer, Jaipur, has passed an award on January 30, 1979 for acquisition of the land of the factory. It was further contended that no notice of the acquisition proceedings was given by the Land Acquisition Officer, Jaipur, to the Official Liquidator. It has been further contended by the Official Liquidator that the permission of this Court should have been obtained in view of the provisions of Sec. 446 of the Companies Act, and as the Land Acquisition Officer, Jaipur, before passing the award has not obtained permission of this Court the entire acquisition proceedings are liable to be quashed and the proceedings initiated by the Land Acquisition Officer, Jaipur, are-illegal and void ab-initio. The Ex-management of M/s Madhu Industries (P)Ltd. , further informed the Official Liquidator that the Collector, Jaipur has directed the Tehsildar, Jaipur to hand over possession of the lands of the company to the Rajasthan State Electricity Board, Jaipur and before issuing such orders no intimation of the proposed action was given by the Collector, Jaipur to the Official Liquidator It has been further contended by the Official Liquidator that as prior permission of this court was not obtained by the Land Acquisition Officer, Jaipur before initiating acquisition proceedings, the entire proceedings are liable to be quashed. The Ex management also reported that the labour belonging to the Rajasthan State Electricity Board have started putting up their material in the premises of M/s Madhu Industries. The Rajasthan State Electricity Board, Jaipur, filed reply to the application under sec 446 of the Companies Act filed by the Official Liquidator. It has been conceded by the Rajasthan State Electricity Board, Jaipur, that M/s Madhu Industries (P) Ltd. went into liquidation by an order of this court and the property of the company (under liquidation) was auctioned by the Official Liquidator at the instance of the Rajasthan Financial Corporation from whom the company had taken loans. It was further contended that the State Electricity Board was the highest bidder of the auction sale and the bid was accepted. The State Electricity Board deposited Rs. 4,76,000/ -. It was also contended that the 25 per cent of the total bid was paid at the time of the auction and the balance was deposited with the High Court at Jodhpur. The Ex-Managing Director of M/s. Madhu Industries moved an application under Order 21 Rule 89 C. P. C. for setting aside the sale in favour of the State Electricity Board. The Managing Director paid to the decree holder the amount due to the company and also deposited 5 per cent of the purchase money for payment to the purchaser. This court set aside the sale and the State Electricity Board withdrew the amount together with 5 per cent of the purchase money. The State Electricity Board further contended that as considerable time has elapsed the Board thought that the company have settled with the creditors and the property has been released from liquidation. It was further contended by the Electricity Board that it was deprived of the property which the Board urgently required for placing its store and other material. As the existing store did not have enough space, the State Electricity Board moved the State Government for acquiring this land. Under these circumstances, acquisition proceedings were initiated and the State Government issued a notification under section 4 and sec. 17 (4) of the Rajasthan Land Acquisition Act on May 29, 1978. It was further contended that by another notification dated June 15. 1978, the description of the area sought to be acquired was corrected. It was further contended that a notice was published in the Rajasthan Patrika dated November 8, 1978 to all interested persons to file their claims to the Land Acquisition Officer by November 25, 1978. Thereafter, the matter was enquired into by the Land Acquisition Officer and an award was issued on January 30, 1979 The award was for a sum of Rs. 4, 99, 275. 17. This amount was deposited by the State Electricity Board and the respondent came into possession of the land and the material and stores belonging to the (State Electricity Board are lying in the land in dispute. It was further contended by the State Electricity Board that the notices issued in Rajasthan Gazette on June 8, 1978 and June 29, 1978 and the Rajasthan Patrika dated November 8, 1978, are public notices meant for all concerned including the Official Liquidator. It was further contended that the Official Liquidator, if he had any interest in the property should have taken notice of the public notice and should have objected to the proceedings carried on before the Land Acquisition Officer. It has been further contended that the Ex-management of the Official Liquidator should be deemed to have been informed through these public notices. It was further contended that the ex-management and the Official Liquidator are now estopped from raising objections against the award passed by the Land Acquisition Officer. It was also contended that through this auction the property has fetched much more value than it could have ordinarily fetched and as such, the Official Liquidator or the ex-management has not been put to any loss. It was also contended by the State Electricity Board that the proceedings before the Land Acquisition Office are not covered, under section 446 of the Companies Act and, even if, for arguments' sake if they are covered, then an irregularity may now be regularised and the Court may now be pleaded to accord sanction with regard to the proceedings taken by the State Government and the award given by the Land Acquisition Officer, Jaipur. Replies were also filed on behalf of the State of Rajasthan, the Collector, Jaipur, the Land Acquisition Officer, Jaipur and the Tehsildar, Jaipur. It has been contended by them that it was not within their knowledge that M/s. Madhu Industries (P) Ltd. was under liquidation. It has been further contended that the non-petitioners were not aware that the property in dispute belonged to the petitioner, and hence, no notice was given to the Official Liquidator and M/s Madhu Industries (P) Ltd. It was also contended that the Land Acquisition Officer, Jaipur was to give notice of the acquisition proceedings to the registered owner of the land in dispute only. If M/s. Madhu Industries (P) Ltd, or on their behalf the Official Liquidator was the owner of the property in dispute they should have presented their claim before the Land Acquisition Officer, Jaipur. It was further contended that as they have failed to do so they are not entitled to agitate the matter before this Court. It was further contended that the non-petitioners have not initiated any acquisition proceedings of the land belonging to the petitioner or to M/s. Madhu Industries (P) Ltd. The acquisition proceedings were drawn in respect of the property which does not stand in the name of the petitioner and M/s. Madhu Industries (P) Ltd. It was also contended that the Tehsildar, Jaipur was ordered to take possession of the land bearing Khasra No. 54 to 60, 207 and 208 of Village Sodlaal (Jaipur) from Kha-tedar Seth Gopal Nath, Shri Durgalal, Shri Saduram and Shri Daulat Chand. As the land in dispute was not entered in the name of M/s. Madhu Industries (P) Ltd. the non-petitioners were justified in taking recourse to acquisition proceedings. It was further contended that as no award has been granted in respect of assets of M/s. Madhu Industries (P) Ltd. , the question of taking prior permission of the High Court under section 446 of the Companies Act, 1956 did not arise at all. It was further contended by the non-petitioners that the Tehsildar, Jaipur, has taken in possession the land in dispute and a possession memo was prepared which bears the signatures of Shri Durgalal, Shri Sadu Ram, Shri Daulat Ram and Shri Nathu Singh, Chowkidar, has signed on behalf of Gopal Nath. The Rajasthan State Electricity Board officials and the local Patwari also signed the memo. It was also contended that no resistance was put up by any-body including the Chowkidar. It was also contended by the non-petitioners that after taking over the possession, the State Electricity Board has a right to use the land in dispute. It was also contended that as the proceedings before the Land Acquisition Officer, Jaipur are quasi judicial in nature, the publication of the notice in the Rajasthan State Gazette should be deemed as sufficient notice to the Official Liquidator. It was further contended by the non-Petitioners that on the request of the Rajasthan State Electricity Board notice to acquire land bearing Khasra Nos. 54 to 60, 207 and 208 measuring 7 bighas 19 biswas of Village Sodala, Jaipur was published as required by law. There-after another notice was issued inviting claims of the beneficiaries having interest in the dispute. After full proceedings an award was passed by the Land Acquisition Officer, Jaipur on January 30, 1979. No reference against this award has been made by any of the beneficiears and hence they are estopped from taking any proceedings before this court. It was also contended that in view of the circumstances of the case the application by the Official Liquidator is not maintainable. It was further prayed that the proceedings before the Land Acquisition Officer, Jaipur could not be quashed.
(3.) THE official Liquidator has filed rejoinder to the reply filed by the non-petitioners. It has been contended by the Official Liquidator that the non-petitioners were fully aware that the property in dispute belonged to M/s. Madhu Industries (Pvt.) Ltd (in liquidation), and that the assets of the said company being under liquidation were under the charge of the Official Liquidator. It was further contended that the non-petitioners have failed to notice that the land in dispute is not agricultural land and that it belongs to the company M/s. Madhu Industries (P) Ltd. and is an industrial land. It was further contended that the non-petitioners have not seen their own record before filing the reply. It was further contended that the winding up of the aforesaid company was widely published and was also published in the Official Gazette of the Rajasthan State dated March 3, 1970. THE State and the other non-petitioners should be presumed to have knowledge of the Gazette dated March 3, 1970. It was further contended that the Rajasthan State Electricity Board had the full knowledge of the said order because they had taken part in the auction sale of the assets of M/s. Madhu Industries and the Rajasthan State Electricity Board was the highest bidder. The sale was cancelled by this Court on the petition of the company. It was further contended that Sec. 446 of the Companies Act is mandatory in character and admits no exception. The State or the Land Acquisition Officer could not have taken any proceedings against the company in liquidation without prior leave of this Court. It was also contended that without prior permission of this Court the possession of the land could not be handed over to any body. By an application dated 13th January, 1981 the State has prayed for ex-post facto leave to initiate acquisition proceedings. This application for ex-post facto leave has been opposed by the ex-management and the Official Liquidator. ;