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2014 DIGILAW 351 (MP)

Phoenix Devecons Pvt. Ltd. v. Manisha Parihar.

2014-03-28

JARAT KUMAR JAIN, SHANTANU KEMKAR

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JUDGMENT : Shantanu Kemkar, J.:- With consent heard finally. 2. This order shall govern the disposal of the W. A. No. 318/14, W. A. No. 319/14, W. A. No. 320/14, W. A. No. 321/14, W. A. No. 322/14, W. A. No. 323/14, W. A. No. 325/14, W. A. No. 328/14, W. A. No. 329/14, W. A. No. 330/14, W. A. No. 331/14, W. A. No. 332/14, W. A. No. 333/14, W. A. No. No. 334/14,W.A. No.335/14,W. A. No. 336/14, W. A. No. 337/14, W. A. No.338/14 W. A. No 339/14, W. A. No. 340/14, W. A. No. 341/14 W. A No. 342/14, W. A. No. 343/14, W. A. No. 344/14, W. A. No. 345/14, W. A. No.346/14, W. A. No. 347/14 W. A No. 348/14, W. A No. 349/14 W. A. No. 350/14, W. A. No. 351/14, W. A. No.352/14, W. A. No. 353/14, W. A No. 355/14, W. A. No. 357/14, W. A. No.358/14, W. A. No. 359/14, W. A. No. 361/14, W. A. No. 362/14, W. A. No. 363/14 as they arise out of a common order dated 30-11-2013 passed in various writ petitions observing that the question involved in all of them are identical in nature. 3. For the sake of convenience, facts are taken from Writ Appeal No. 315/14 arising out of the order passed in W. P. No. 12992/13. 4. The first respondent had filed the aforesaid writ petition claiming following reliefs :-- "(i) to call for the relevant records of the case; (ii) to direct the police authorities for registration of FIR against the culprit directors/shareholders/promoters of the company; (iii) to return the amount of Rs. 50,000/- along with the interest of current market rate to the petitioner or alternately Rs. 16.50 crores collected by the company along with interest at current market rate to the residents Welfare Society formed by the plot owners of the Phoenix Township; (iv) to direct the Statutory Authority to take over the management of the company and do the development of the township, which comprises thousands of residents like petitioner; (v) to award costs of this petition; (vi) any other writ or direction, which this Hon'ble Court may deem fit and proper in the peculiar circumstances of the case may also be issued." 5. The Writ Court vide impugned common order disposed of the writ petition by giving following directions :-- "(1) Original Directors and substituted Directors namely, Mr. Nilesh, Ajmera, Smt. Sonali Ajmera, Ritesh Ajmera and Mr. Chirag Shah will join as Directors of respondent No. 6/company within a period of two weeks. (2) Respondent No. 6/company shall complete all the formalities and shortcomings of the Phoenix Township as promised initially within a period of six months without fail. The plots shall be demarcated and shall be marked so that the same can be identified easily by each of the plot holder. (3) Respondent No. 6/Company shall keep on site office at Phoenix Township so that the plot holders can get the required information easily. (4) So far as W. P. Nos. 13623/2013, 13629/13 and 13631/2013 are concerned, the allegations are that petitioner of these petitions are cheated as the amount was received against allotment of plots in Phoenix Township but now the respondent No. 6/Company is offering the plots else where. In this regard, suffice to say that respondent No. 6/ Company shall fulfil the promise. Petitioner of these petitions are at liberty to take legal action in accordance with law. (5) It is informed that the plot holders who have issued cheques from time to time, were dishonoured. If the cheques are dishonoured then at the time of giving possession, it will be incumbent upon the plot holders to clear the dues for which the cheques were given. Similarly, the outstanding amount, which is shown in the sale deeds for which No Dues Certificate is not issued by respondent No. 6/Company, shall be, payable at the time of possession. Needful shall also be done by the respondent No. 6/Company and its Directors for collecting the sale deeds from the Office of Sub-Registrar. In case of default in compliance of any of the directions issued by this Court, upon production of copy of the order, Competent Authority shall take appropriate action including criminal against respondent No. 6/Company and its Directors in accordance with law." 6. It has been argued by the learned Counsel for the appellant that the learned Single Judge has committed gross illegality in issuing impugned directions for which no relief was claimed. It has been argued by the learned Counsel for the appellant that the learned Single Judge has committed gross illegality in issuing impugned directions for which no relief was claimed. He submits that issuance of the aforesaid directions to the appellant-a Private Limited Company is beyond the scope of the writ jurisdiction as the appellant-Company is not amenable to the writ jurisdiction. The Company is not discharging any public duty, which can be directed to be enforced by issuance of the writ and it is not an authority under Article 12 of the Constitution. He further argued that the Commissioner's report received on the basis of the interim order passed by the learned Single Judge was in fact in favour of the Company, in the circumstances, there was absolutely no necessity for issuing the impugned direction. He submits that the direction No. 1 contained in the order is matter relating to the Company Law regarding, which there is a complete procedure and de hors to that no such direction can be issued in writ jurisdiction. He also submits that even if there were any deficiencies noticed, the learned Single Judge should have only directed the writ petitioner to approach the State Government Authorities or any other Appropriate Forum for redressal of the grievance or the official respondents could have been issued some directions in accordance with law, but no directions in the nature contained in the impugned order could have been issued. He also submitted that the appellants' averments made in reply Paragraph Nos. 7, 8, 9 and 10 have been completely ignored by the learned Single Judge and the mention in the order that the appellant had agreed for issuance of the direction is wrong. 7. On the other hand, learned Counsel appearing for the writ petitioners have supported the impugned order and have stated that on account of the lapses on the part of the Company and its Directors, the writ petition was filed in which taking into consideration the Commissioner's report, the impugned directions have rightly been issued by the learned Single Judge, which are well within the writ jurisdiction. In support, learned Counsel for the writ petitioners placed reliance on the judgments of the Supreme Court delivered in the cases of Binny Ltd. and another vs. Sadasivan and others, AIR 2005 SC 3202 , Babubhai Jamnadas Patel vs. State of Gujarat and others, (2009) 9 SCC 610 and Shalini Shyam Shetty and another vs. Rajendra Shankar Patil, 2010(4) MPLJ (S.C.) 590 = (2010) 8 SCC 329 . 8. We have heard learned Counsel for the parties at length. Perused the impugned order, averments made in the writ petition, reply and the annexures as also the Commissioner's report. 9. On going through the relief clause as extracted above, we find that the writ petitioner had prayed for issuance of directions to the police authorities for registration of FIR against the culprits Directors/shareholders/promoters of the company and to return the amount of Rs. 50,000/- along with interest of current market rate to the petitioner or alternately Rs. 16.50 crores collected by the company along with interest at current market rate to the Residents Welfare Society formed by the plot owners of the Phoenix Township and to direct the Statutory Authority to take over the management of the Company and do the development of the ownership, which comprises thousands of residents like petitioner. 10. However, instead of passing the order in regard to the reliefs claimed, we find that the learned Single Judge has issued altogether different directions than what was prayed. The Commissioner's report also prima facie appears to have not been rightly dealt with. The learned Single Judge before issuance of the impugned direction did not consider and decide as to whether the appellant-Private Limited Company in question is amenable to writ jurisdiction, is the company in discharging any public duty, which it failed to discharge. In our considered view, the learned Single Judge could not have issued impugned direction to either the individuals, who are Directors of the Private Ltd. Company or to the appellant-a Private Limited Company without firstly giving any finding about its constitution, as to whether the entire share capital of the company is held by the Government; whether its administration is in the hands of the Board of Directors appointed by the Government and whether there exists within the company deep and pervasive State control. The Writ Court before issuing the impugned direction was required to examine the factors, which are required to be considered, like whether the functions carried out by the company are closely related to the Governmental function. The other factors like formation of appellant's company, its objectives, functions, its management and control, financial aids received by it, the question of its dominations by the Government as all these matters would only render it in as authority amenable to writ jurisdiction of High Court. Having failed to consider all these related issues in view of the law laid down by the Supreme Court in the case of Balmer Lawrie and Co. Ltd. vs. Partha Sarathi Sen Roy, reported in (2013) 8 SCC 345 , impugned directions as also the order passed by the learned Single Judge cannot be sustained. 11. As regards the reliance of the petitioner on the judgment passed by the Supreme Court in the case of Binny Ltd. and another (supra), the same will not help the petitioner for the simple reason that in that case also, the Supreme Court has held that a writ of mandamus can be issued against a private body or a person, but for enforcement of public duty. In the case of Babubhai Jamnadas Patel (supra), the Supreme Court has held that the High Court and Supreme Court are sentinels of justice. They have been vested with extra powers of judicial review and supervision to ensure that rights of citizens are duly protected. Courts have to maintain a constant vigil against inaction of authorities in discharging their duties and obligation in the interest of citizens, for whom they exist. The Supreme Court as also the High Court have to issue appropriate writ or directions from time to time to ensure that the authorities performed at least such duties as they were required to perform, under various statutes and orders passed by administration. However, in the present case, the directions, which have been issued by the learned Single Judge are not to the authorities but, the same are issued to the Directors and to a Private Limited Company without recording a finding that they are amenable to the writ jurisdiction as they failed in discharging the public duty. However, in the present case, the directions, which have been issued by the learned Single Judge are not to the authorities but, the same are issued to the Directors and to a Private Limited Company without recording a finding that they are amenable to the writ jurisdiction as they failed in discharging the public duty. In the case of Shalini Shyam Shetty and another, again the Supreme Court has said that under the phraseology of Article 226, the High Court can issue writ to any person but, the person against whom writ will be issued must have some statutory or public duty to perform. (Emphasis supplied) 12. Keeping in view the aforesaid clear legal position, we are of the view that in the absence of there being finding recorded by the Writ Court in terms of the law laid down by the Supreme Court in various cases referred above, in our considered view, the order passed by the learned Single Judge cannot be sustained. We, accordingly, set aside the impugned order. Writ petitions are restored to their original numbers for being decided by the Single Bench afresh. Order accordingly.