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2015 DIGILAW 1025 (KAR)

Anand Investment Private Limited v. State of Karnataka

2015-09-01

A.S.BOPANNA

body2015
ORDER : A.S. Bopanna, J. 1. The petitioner is before this Court seeking for issue of mandamus to the second respondent to allot and transfer forthwith 20.13 acres of land in Sy. Nos. 97/3, 98/3, 99/2, 100/2 and 101 of Shettigere Village, Jalahobli, Bengaluru North (Additional) Taluk to the petitioner pursuant to the Government order dated 29.08.1992. The petitioner claims to be the transferee company to which M/s. Swadeshi Chemicals Private Limited, a Transferor Company has been amalgamated in the Scheme which also included four other Transferor Companies. In that view, the, petitioner-company claiming right under M/s. Swadeshi Chemicals Private Limited is before this Court seeking for a direction as has been sought herein. 2. At the first instance, M/s. Delicia India Limited, a company registered under the provisions of the Companies Act had purchased the land measuring 20.13 acres situate in Sy. Nos. 97/3, 98/3, 99/2, 100/2 and 101 of Shettigere village, Jalahobli, Bengaluru North (Additional) Taluk. However, considering that the said purchase being contrary to the provisions of the Karnataka Land Reforms Act, 1961 ('the Act' for short) appropriate action has been initiated. Subsequently, on taking note of the fact that the company was in possession of the land, an order dated 29.08.1992 (Annexure-C) was passed whereby the very same property regarding which the proceedings had been initiated under the Act was allotted in favour of M/s. Swadeshi Chemicals Private Limited taking into consideration that M/s. Delicia India Limited had by then merged with M/s. Swadeshi Chemicals Private Limited. 3. Thereafter the first respondent after collecting the requisite fee payable in that regard from M/s. Swadeshi Chemicals Private Limited had addressed the communication dated 13.11.2008 to the second respondent denoting all these aspects of the matter and handing over possession of the property and had directed the second respondent to make an allotment of the said property in favour of M/s. Swadeshi Chemicals Private Limited. Subsequent to the Said communication, the said M/s. Swadeshi Chemicals Private Limited has addressed letter to the second respondent seeking action in that regard. Since no action has been taken and on the contrary, when the communications dated 06.07.2012 enclosing a copy of the communication dated 18.05.2012 as at Annexures-J1 and J2 was issued to the petitioner. The petitioner in that light, has made a representation dated 06.03.2013. Since no action has been taken and on the contrary, when the communications dated 06.07.2012 enclosing a copy of the communication dated 18.05.2012 as at Annexures-J1 and J2 was issued to the petitioner. The petitioner in that light, has made a representation dated 06.03.2013. Since the request made therein was not considered, the petitioner is before this Court seeking for issue of mandamus. 4. The second respondent; has filed the objection statement. Insofar as the averments made in the petitions relating to the allotment of the property to M/s. Swadeshi Chemicals Private Limited and the manner in which the Government had proceeded, there is no dispute raised since it is an inter se issue. However, the second respondent has indicated that the action as proposed cannot be taken by them. The first respondent through their objection statement have not disputed the manner in which the consideration had been made with regard to the re-allotment of the property in favour of M/s. Swadeshi Chemicals Private Limited. The contentions raised on behalf of the first respondent is that the petitioner cannot claim to have any right over the said property regularized in favour of M/s. Swadeshi Chemicals Private Limited and therefore, the mandamus sought in that regard by the petitioner cannot be granted. 5. In the light of the contentions, at the outset, what is necessary to be considered is as to whether the petitioner can claim right in respect of the property which had been allotted in favour of M/s. Swadeshi Chemicals Private Limited. In that regards a perusal of the petition papers would disclose that M/s. Swadeshi Chemicals Private Limited and four other Transferor Companies had filed a petition under Sections 391 to 394 of the Companies Act before the High Court of Judicature at Mumbai. The Scheme as proposed was for amalgamation of all the Transferor Companies with M/s. Anand Investment Private Limited which is the petitioner herein. 6. The High Court of Judicature at Mumbai on considering the scheme has approved the same by the order dated 06.05.2011. The scheme is attached to the order. A perusal of the same would indicate that the Scheme at Clause 4 provides with regard to the transfer and vesting of the undertakings of the Transferor Companies in the Transferee Company viz., the petitioner herein. The scheme is attached to the order. A perusal of the same would indicate that the Scheme at Clause 4 provides with regard to the transfer and vesting of the undertakings of the Transferor Companies in the Transferee Company viz., the petitioner herein. In that light, Clause 4.3 refers that all permissions, approval, orders etc., made in favour of the Transferor Companies would vest in favour of the Transferee Company. 7. If that be the position, when M/s. Swadeshi Chemicals Private Limited was one of the Transferor Companies under the Scheme and when the Scheme was approved in accordance with law, all the rights granted in favour of M/s. Swadeshi Chemicals Private Limited also would stand transferred to the Transferee Company viz., the petitioner herein. All that is required to be done by the petitioner is to secure the decree of the order passed therein after the necessary stamp duty having been paid for transfer of the properties and the same is to be produced before the Government to take benefit of the order that has already been passed by the first respondent through Annexure-C in favour of M/s. Swadeshi Chemicals Private Limited which is now a part of the petitioner herein. 8. Hence, insofar as the action taken by the Government for allotment of the said property, there can be no dispute that the petitioner in view of the Scheme of Amalgamation being approved would be entitled to the benefit of the properties of the Transferor Company viz., M/s. Swadeshi Chemicals Private Limited. The other aspects which arise for consideration in that view is as to whether the mandamus as sought is to be issued against the second respondent or the first respondent. 9. Admittedly, the land in question is not a part of the industrial area formed by the second respondent. The entire extent of the property was initially purchased by M/s. Delicia India Limited which was thereafter transferred to M/s. Swadeshi Chemicals Private Limited and the first respondent though had found certain violations with regard to the purchase of the property, had taken note of the aspect relating to the companies having utilized the said property and therefore had passed the order of transfer of the property in favour of M/s. Swadeshi Chemicals Private Limited. Therefore, the petitioner would be presently entitled to take benefit of the possession. Therefore, the petitioner would be presently entitled to take benefit of the possession. Notwithstanding the communication which had been issued earlier by the Government to the second respondent, since the said land is not in an industrial layout, it would be open for the first respondent to take note of this aspect and ratify the earlier order in order to transfer the land in favour of the petitioner by passing an appropriate order to that effect after the decree obtained in the amalgamation proceedings is produced before the first respondent or if any other specific order is to be made in order to direct the second respondent to complete the transaction, the same also be made. 10. Hence, to the said extent, the petitioner shall file a representation along with a copy of the decree passed in the amalgamation proceedings and a copy of this order as also other supporting documents with the first respondent. The first respondent on taking note of the same shall pass appropriate orders in favour of the petitioner so as to enable the petitioner herein to enjoy the property which had been earlier ordered in favour of M/s. Swadeshi Chemicals Private Limited by the first respondent, by passing an appropriate order in accordance with law. Such consideration shall be made by the first respondent in an expeditious manner, but in any event the order shall be passed within two months from the date on which the representation along with the supporting documents are submitted by the petitioner to the first respondent. In terms of the above, the petitions stand disposed of.