INDRAPRASTHA PLASTICS (P. ) LTD. v. COLLECTOR, ALLAHABAD
2001-09-14
G.P.MATHUR, U.S.TRIPATHI
body2001
DigiLaw.ai
G. P. MATHUR, J. ( 1 ) THIS petition under Article 226 of the Constitution has been filed for quashing the recovery certificate dated 10. 7. 2000 sent by the Executive Engineer. Electricity Distribution Division and also the order dated 16. 1. 2001 passed by Tehsildar Allahabad. ( 2 ) THE petitioner M/s. Indraprastha Plastics Private Limited is a private limited company duly registered under the Indian Companies Act. The petitioner No. 2 Arun Kumar claims himself to be a shareholder of the company. It is averred in the writ petition that the petitioner has a unit over plot No. 977-A, Bamharaull, Tehsil Chail, Allahabad, which is lying closed since 1994. The executive Engineer, Electricity Distribution Division, U. P. Power Corporation Limited sent a recovery certificate dated 10. 7. 2000 to the Collector, Allahabad for recovering a sum of Rs. 1,07,208 towards electricity dues from the petitioner No. 1. The Collector was seeking to recover the amount as arrears of land revenue. The premises situate over plot No. 977-A, Bamharaull were attached in recovery proceedings by Tehsildar Sadar, Allahabad by his order dated 16. 1. 12001. The case of the petitioners further is that a winding up petition has been filed against the petitioner No. 1 in Delhi High Court, which has been registered as Company Petition No. 176 of 1998 where a provisional liquidator has been appointed by the order dated 24. 11. 1998 and consequently in view of Section 446 of the Companies Act, the recovery proceedings could not proceed against the petitioner company except with the leave of the Company Court, i. e. , delhi High Court where the winding up petition is pending. ( 3 ) SHRI Sudhir Agarwal learned counsel for the respondent Nos. 3 and 4 has submitted that the recovery is sought to be made under the provisions of U. P. Government Electrical Undertakings (Dues Recovery) Act, 1958 which has received the assent of the President of India on 12. 5. 1958 and consequently, will have an over-riding effect. He has further submitted that the agreement for supply of electricity between the U. P. State Electricity Board and the petitioner company was with regard to its unit situate over plot No. 977-B, Bamharauli and the writ petition filed for quashing the recovery proceedings with regard to the unit situate over plot No. 977-A, bamharauli is not maintainable.
He has further submitted that the agreement for supply of electricity between the U. P. State Electricity Board and the petitioner company was with regard to its unit situate over plot No. 977-B, Bamharauli and the writ petition filed for quashing the recovery proceedings with regard to the unit situate over plot No. 977-A, bamharauli is not maintainable. ( 4 ) WE have considered the submissions made by the learned counsel for the parties. The contention of Shri Agarwal that U. P. Government Electrical Undertakings (Dues Recovery) Act, 1958 will override the provisions of Companies Act as it has received the assent of the President of India, has no substance. The Companies Act has been enacted with reference to Entries 43 and 44 of List I (Union List) of Seventh Schedule of the Constitution while the U. P. Government electrical Undertakings (Dues Recovery) Act, 1958 has been made with reference to Entry 38 of list III (Concurrent List) of Seventh Schedule. The provisions of Article 254 (2) of the constitution relied upon by Sri Agarwal can come into play only if the law made by the parliament is also with respect to one of the matters enumerated in the Concurrent List. Since the companies Act has not been enacted with reference to any matters enumerated in the Concurrent list but has been enacted with respect to a matter enumerated in the Union List, the provisions of article 254 (2) of the Constitution will not apply. It is well settled that it is the Parliament, which has the exclusive power to make laws with respect to the matters contained in List I (Union List ). See Indu Bhusan Bose v. Rama Sundari, AIR 1970 SC 228 . Therefore, the first contention raised by Sri Agarwal has to be rejected. ( 5 ) THE question still remains whether the reliefs claimed by the petitioners in the present writ petition under Article 226 of the Constitution can be granted by this Court. There is no averment in the writ petition that there are no dues of the U. P. Power Corporation Limited against the petitioner No. 1 or that the amount mentioned in the recovery certificate is wrong or incorrect.
There is no averment in the writ petition that there are no dues of the U. P. Power Corporation Limited against the petitioner No. 1 or that the amount mentioned in the recovery certificate is wrong or incorrect. The only ground on which the petitioners have sought quashing of the proceedings is that a winding up petition has been filed in Delhi High Court being Company Petition No. 176 of 1998 in which an order has been passed on 24. 11. 1998 for appointment of provisional liquidator and, therefore, in view of Section 466 of the Companies Act, no recovery proceeding can be initiated against the petitioner No. 1 without the leave of the Court. The copy of the order dated 24. 11. 1998 (Annexure-1 to the writ petition) passed in Company Petition shows that the company petition has been admitted and by the same order, the Official Liquidator attached to the Court has been appointed as provisional liquidator and he has been directed to take into custody and possession the assets, stocks, books of accounts of the company and to prepare an inventory thereof. A factual controversy has been raised by the contesting respondents that the agreement between the petitioner company and U. P. State Electricity Board was with regard to the unit situate over plot No. 977-B, Bamharauli and not for the unit situate over plot No. 977-A, bamharauli. It is not possible to resolve the factual controversy raised in the present proceedings under Article 226 of the Constitution. Section 5 of the U. P. Government Electrical Undertakings (Dues Recovery) Act, 1958 provides that If the dues for which notice of demand has been served are not deposited with the prescribed authority within 30 days from the date of its service or such extended period as it may allow, the same together with the cost of recovery as may be prescribed, shall be recoverable as arrears of land revenue, notwithstanding anything contained in any other law or instrument or agreement to the contrary. In view of Section 5 aforesaid, the dues of respondent No. 3 will be recovered as arrears of land revenue in accordance with the provisions of U. P. Z. A. and L. R. Act. The Collector while recovering dues as arrears of land revenue functions as a revenue court.
In view of Section 5 aforesaid, the dues of respondent No. 3 will be recovered as arrears of land revenue in accordance with the provisions of U. P. Z. A. and L. R. Act. The Collector while recovering dues as arrears of land revenue functions as a revenue court. We are fortified in our view by a decision of Apex Court in state of Tamilnadu v. G. N. Venkataswamy, (1994) 5 SCC 314 , where while examining the provisions of Tamilnadu Revenue Recovery Act, 1864 it was held as follows : "the Collector has very wide powers under the Act to order distress sale of distrained property, attachment and sale of land and even arrest and detention of the defaulter. The Collector exercises the judicial power of the State. The Collector exercises powers under the Act which is an Act of the State Legislature. He is invested with the power to decide the controversy between the State and the defaulter. There is in existence a lis between the State and the defaulter. There is assertion and denial. The dispute involves the rights and obligations of the parties which are decided by the Collector. The Collector has the power to sell movable and immovable property of the defaulter. He can even arrest and detain the person up to a period of two years. All these powers of the Collector are the judicial powers of the State. The only conclusion which can be drawn is that the Collector under the Act is a revenue court. " Since the Collector while making recovery of an amount as arrears of land revenue functions as a Court, he comes within the purview of Section 442 (ii) of the Companies Act. The Company court has, therefore, complete jurisdiction to restrain the proceedings initiated by the Collector for recovery of the amount. Sub-section (1) of Section 446 of the Companies Act provides that when a winding up order has been made or the Official Liquidator has been appointed as provisional liquidator, no suit or any other legal proceedings shall be commenced or if pending at the date of the winding up order, shall be proceeded with against the company except by leave of the Court and subject to such term as the Court may impose.
Sub-section (2) of the same section provides that the Court which is winding up the company shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain or dispose of any suit or proceeding by or against the company and any claim made by or against the company. Therefore, the Company Court has the jurisdiction to entertain and dispose of any claim made against the company. ( 6 ) IN view of the fact that a winding up petition has been filed in Delhi High Court in which a provisional liquidator has been appointed, the proper remedy for the petitioners is to approach the Company Court which has the jurisdiction to grant the reliefs claimed in the present writ petition. It will, therefore, not be proper for this Court to entertain a writ petition under Article 226 of the Constitution at this stage. ( 7 ) FOR the reasons mentioned above, the writ petition is dismissed at the admission stage. The stay order is vacated. .