{"id":239279,"date":"2000-07-21T00:00:00","date_gmt":"2000-07-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/duncan-international-india-vs-appellate-authority-for-on-21-july-2000"},"modified":"2019-01-11T08:41:51","modified_gmt":"2019-01-11T03:11:51","slug":"duncan-international-india-vs-appellate-authority-for-on-21-july-2000","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/duncan-international-india-vs-appellate-authority-for-on-21-july-2000","title":{"rendered":"Duncan International (India) … vs Appellate Authority For … on 21 July, 2000"},"content":{"rendered":"
Delhi High Court<\/div>\n
Duncan International (India) … vs Appellate Authority For … on 21 July, 2000<\/div>\n
Equivalent citations: 2003 115 CompCas 237 Delhi, 86 (2000) DLT 698, 2000 (54) DRJ 836<\/div>\n
Author: D Gupta<\/div>\n
Bench: D Gupta, K Gupta<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
Devinder Gupta, J.<\/p>\n
1.     In this petition filed under Article 226 of the Constitution of India, challenge has been made by the petitioner Company to that part of the order passed  by  Board  for Industrial and Financial  Reconstruction  (BIFR)  on 28.2.1997  in  case No. 117\/87 in Re: M\/s. Anglo India Jute  Mills  Company Limited (AIJM) in the proceedings held on 6.2.1997; by which the petitioner was directed to pay rental @ Rs.10,000\/- per month for Flat No.34, Woodland Estate,  Alipore, Calcutta, without adjusting the amount against  any  dues claimed by it from Anglo India Jute Mills Company Limited, further  directing that rental payable shall be increased to Rs. 27,000\/- per month w.e.f. 1.4.1997  and  within  a period of six months, the  petitioner  shall  make necessary  arrangement  to vacate the flat in favour of  Anglo  India  Jute Mills and against the order passed on 15.4.1998 by the Appellate  Authority for Industrial and Financial Reconstruction (AAIFR) dismissing its appeal.\n<\/p>\n
2.   Relevant facts, in brief, are that the Anglo India Jute Mills  Company Limited  (Respondent No.7 herein) of which J.P. Goenka and A.  Goenka  (Respondents  Nos. 8 and 9 respectively) are the erstwhile promoters became  a sick industrial unit. Its case was referred to the Board for Industrial and Financial Reconstruction (BIFR) in December, 1987. The then promoters tried to revive the sick unit, but their efforts remained unfruitful. A  proposal was given by respondent No.6 Company in or about September, 1992 for revival of the sick unit. This proposal was accepted by BIFR Subject to  certain conditions  and  a scheme to that effect was sanctioned  on  4.2.1994.  The sanctioned  scheme dated 4.2.1994, inter-alia, stipulated some  obligations on  the  out-going,  promoters and it is alleged that  the  said  promoters fulfillled  those  obligations. The sanctioned scheme did  not  contain  any provision regarding flat No.34, Woodland Estate, Alipore, Calcutta, of which it  is claimed that the first petitioner Company is a lawful  tenant  since 1.4.1991 and which has been occupied by its employee Mr. Bakshi eversince.\n<\/p>\n
3.   It  is the petitioner’s case that in the sanctioned scheme,  BIFR  did not include the flat because recovery of possession of tenanted premises is outside  the  purview Sick Industrial Companies (Special  Provisions)  Act, 1985 (Act No.1 of 1986) (hereinafter referred to as “SICA”). On 29.3.1994 a corrigendum was issued to the sanctioned scheme dated 4.2.1994 ratifying or clarifying  certain anomalies in the said scheme. Another  corrigendum  was issued on 10.5.1994 providing for payment of interest @ 17.5% on the agreed dues  of Rs.350 lakhs of State Bank of India from the date of  sanction  of the scheme. After the scheme was sanctioned, first review meeting was  held on  26.5.1994.  In the said meeting, suggestions were  made  by  respondent Nos.6  and 7 and other parties to the scheme. In the second review  meeting held on 14.11.1994, it is stated that O.P. Chandak appeared as a  representative  of respondents Nos.8 and 9. On 20.7.1995 third review  meeting  was held when respondent Nos.6 and 7, inter-alia, stated to have stressed their claim, for the first time, in respect of the flat in question. It is stated that  BIFR directed respondent No.7 to cause a notice to be issued  to  the erstwhile promoters, namely, respondents Nos.8 and 9 for arranging to  hand over vacant possession of the Company’s properties held by them within  120 days  or pay the market rent of the properties. BIFR also stated that  upon completion  of  the  lease arrangement, the property shall  revert  to  the Company  unless there is specific arrangement between the Company  and  the issue  holders  of the property agreeing to extend the  lease  on  mutually acceptable basis.\n<\/p>\n
4.   It  is  petitioner’s  case that respondent No.7  despite  having  full knowledge of the flat and status of petitioner’s Company as a lawful tenant at all material points of times, having received rent without demur,  chose not to make any claim for including the flat within the purview of rehabilitation  scheme for almost one-and-a-half years after the scheme was  sanctioned on 4.2.1994. The issue regarding handing over of the flat was raised for  the  first time only in the third review meeting  held  on  20.7.1995. Notice  was  never  issued to the first petitioner Company  to  attend  and participate in the meetings.\n<\/p>\n
5.   Apprehending  that respondent No.7 might resort to unlawful action  to deprive  and deny the first petitioner of its lawful tenancy rights of  the flat in question, a suit for declaration was filed by it on 27.1.1996 under the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as  ‘WB Tenancy  Act’)  before Civil Court at Alipore,  Calcutta.  Respondent  No.7 submitted to the jurisdiction of Alipore Court and filed an application  on 12.6.1996 under order 7 Rule 11 C.P.C. praying for stay of the  proceedings and for rejection of the plaint, in view of pending proceedings before  the BIFR.  It was pointed out during the course of argument that Alipore  Court declined to grant ad-interim stay of the proceedings and now the matter  is stated to be pending in Calcutta High Court and the proceedings in the said
\nSuit No.5\/96 have been stayed.\n<\/p>\n
6.   The petitioner alleges that BIFR arbitrarily and unlawfully varied the scope  of  original sanctioned scheme by summarily  ordering,  without  any notice  to  petitioner No.1, that petitioner No.1 shall increase  the  rent payable  to respondent No.7 from Rs.10,000\/- to Rs.27,000\/- and vacate  the flat  within a period of six months. No hearing was afforded to  the  petitioner before passing the said order. BIFR also over looked the  statements of  the representative of IFCI, the monitoring agency, to the  effect  that the flat in question is tenanted to the petitioner and tenancy was  created prior  to sanction of the rehabilitation scheme. Statement was affirmed  by respondent  No.7. Feeling aggrieved, an appeal was preferred by  the  petitioner before AAIFR on the ground that no hearing was afforded to it and no notice  was ever issued and that BIFR also exceeded in its jurisdiction  in as much it had no authority to determine a lawful tenancy in respect of the flat, which was not even a part of the sanctioned scheme of rehabilitation. AAIFR  on  15.4.1998 dismissed the appeal erroneously concluding  that  the petitioner had been given hearing and that BIFR had jurisdiction and  power to  determine tenancy as well as fixing enhanced rent. AAIFR  proceeded  to record  other  finding holding that SICA had over-riding effect on  the  WB Tenancy Act and in view of proviso to Article 254(2) of the Constitution of India, the provision made in WB Tenancy Act, 1956 can be varied or repealed by any law, made by the Parliament with respect to the same matter.\n<\/p>\n
7.   Reiterating  the  facts alleged in the petition,  Mr.  Chidambaram  on behalf  of the petitioner urged that the WB Tenancy Act, 1956 and the  SICA operate in two different fields of legislation, the subjects being  covered by  the  Concurrent List and Union List respectively. Article  254  of  the
\nConstitution  of India applies only if the two enactments fall in the  Concurrent List. One law may be repugnant to another if they are with  respect to the same matter, which certainly is not the case here. As such,  Article 254  of  the Constitution has no application. View of  AAIFR  that  Section 32(1)  of SICA will have over-riding effect on WB Tenancy Act, is a  result of  misreading of the scope of the said section. Eviction  proceedings  are clearly not barred under Section 22(1) of SICA. Therefore, the question  of tenancy  rights  of the petitioner Company should be  adjudicated  upon  by Courts constituted for the said purpose under an appropriate law. Even  the rent  payable  is liable to be determined by an appropriate,  Rent  Control Authority.  SICA does not have jurisdiction as regards recovery of rent  or assessment  of  rent  payable by a tenant and to pass  a  summary  eviction order. Therefore, application of the provisions of SICA to the present case is  untenable. Misinterpretation by AAIFR of various provision of SICA  has led  it to include a residential promises within the purview of  industrial undertaking   and  thus  it  has  erroneously  proceeded  to  dismiss   the petitioner’s  appeal in which primary question raised, in addition  to  the jurisdiction was the non-compliance with the provisions of natural  justice.\n<\/p>\n
In this background, the petitioner has prayed for quashing of the  impugned order.\n<\/p>\n
8.   On  behalf of the respondents, it was contended that proper  and  adequate hearing was afforded to the petitioner. O.P. Chandak, who has  signed and  verified the plaint in civil suit before Civil Court and the  proceedings  in  Calcutta High Court has described himself as  the  President  and Constituted  Attorney of the petitioner. He had notice of  the  proceedings before  BIFR from the very beginning. In the meeting called by  IFCI  also. Mr. Chandak represented petitioner No.1 and even before BIFR he had put  in appearance.  Mr. P.K. Basu, Constituted Attorney and Principal  Officer  of the  petitioner  No.1  appeared  before IFCI in a  joint  meeting  held  on 31.1.1997,  describing  himself as the Constituted Attorney  and  Principal Officer of the petitioner. Respondents Nos.8 and 9 and their associates are holding  about 83.6% shares in petitioner No.1 and respondent No.8  is  the Director of petitioner No.1 Company, who had notice of all the  proceedings before  BIFR.  From the minutes of BIFR it would be seen that  Mr.  Chandak represented  promoters and the petitioners in respect of the flat in  question in the review meeting of BIFR held on 20.7.1995; in the review hearing before  BIFR  on  22.8.1996;  in the joint  meeting  before  IFCI  held  on 31.1.1997; and in the review meeting of BIFR held on 6.2.1997. M\/S  Khaitan &  Company Advocates had sent notices on behalf of respondents Nos.8 and  9 and  also on behalf of the petitioner Company with respect to the  flat  in question.\n<\/p>\n
9.   The  case of respondent No.6 is that the order dated 20.7.1995  passed by  BIFR has not been appealed against. The petitioners being  shareholders and  creditors of respondent No.7, by virtue of applicability  of  Sections 18(8),  26 and 32 of SICA, are bound by the scheme. It has been  denied  by respondent  No.6  that Woodland flat was not a part of  the  rehabilitation scheme. It is claimed that it was shown in the balance sheet read with  the statement  of the palnt register as one of the assets. Claim of  the  petitioner  Company that the flat is tenanted to it by respondent No.7 is  sham and  fictitious  in  as much as there is no lease agreement  and  no  Board Resolution of respondent No.7 authorising anyone to create tenancy; tenancy plea is malafide and is an abuse of process of law as tenancy is claimed by
\nerstwhile promoter of respondent No.7 in addition to respondents Nos.8  and 9,  who also own 83.6% shareholding in the petitioner Company; no rent  was paid from April, 1991 to March, 1992. Subsequently, the petitioner  Company claimed adjustment of the amount of rent towards the trade advance. For the first time rent was paid in December, 1992 and that also after the BIFR had
\npassed  stay order dated 4.6.1992 and after respondent No.6  had  submitted its rehabilitation scheme in September, 1992. As per the report of  Operating Agency, fair rental is not less than Rs. 65,000\/- p.m. <\/p>\n
10.  We  have  been taken through the entire record during  the  course  of elaborate  arguments addressed by Mr. P. Chidambaran, learned Senior  Advocate  on  behalf of the petitioners, by Mr. Kapil  Sibbal,  learned  Senior Advocate  appearing  on  behalf of respondent No.6 and  Dr.  A.M.  Singhvi, learned Senior Advocate for respondent No.7.\n<\/p>\n
11.  The primary questions for consideration are the competence and  jurisdiction  of BIFR and AAIFR to pass orders for eviction against a person  in occupation  claiming to be a tenant, from residential flat owned by a  Sick Industrial  Company  and  to order enhancement and  determination  of  rent payable for the tenanted premises and whether the impugned order passed  by BIFR is vitiated due to non-observance of the principles of natural justice and  non-providing  of adequate hearing and opportunity to  put  forth  its case.\n<\/p>\n
12.  SICA  was  enacted under entries 44 and 54 of the Union  List  by  the Parliament.  It  is a complete and exhaustive code on the subject  and  was enacted  to make in the public interest, special provisions with a view  to securing the timely detection of sick and potentially sick companies owning industrial undertakings, the speedy determination by a Board of experts  of the preventive, ameliorative, remedial and other measures, which need to be taken with respect to such companies and the expeditious enforcement of the measures  so determined and for matters connected therewith  or  incidental thereto.\n<\/p>\n
13.  Sick  Industrial Company has been defined in the Act in clause (o)  of sub-section (1) of Section 3 to mean an industrial company (being a Company registered  for  not  less than five years), which has at the  end  of  any financial  year  accumulated losses equal to or exceeding  its  entire  net
\nworth. Industrial Company has been defined in clause (o) of sub-section (1) of Section 3 to mean a Company which owns one or more industrial  undertakings. Definition of Industrial Undertaking in clause (f) of sub-section (1) of Section 3 reads:-\n<\/p>\n
     “(f)  Industrial  Company means any undertaking pertaining  to  a scheduled  industry  carried on in one or more factories  by  any company but does not include-\n<\/p><\/blockquote>\n
     (i)  an  ancilliary industrial undertaking as defined  in  clause (aa) of Section 3 of the Industries (Development and Regulations) Act, 1951; and <\/p>\n<\/blockquote>\n
     (ii)  a small scale industrial undertaking as defined  in  clause (j) of the aforesaid Section 3″\n<\/p><\/blockquote>\n
14.  Board  for  Industrial and Financial Reconstruction (BIFR)  is  established by Central Government under the powers conferred on it by Section  4
\nof the Act to exercise the jurisdiction and powers and discharge the  functions  and duties conferred or imposed on Board by or under this Act”.  The Appellate Authority for Industrial and Financial Reconstruction is  constituted under Section 5 of the Act. Chapter-III of the Act deals with  references,  inquiries and schemes. Section 18 makes provision  for  preparation and sanction of schemes and it says that where an order is made under  sub-section  (3) of Section 17 in relation to any Sick Industrial Company,  the Operating Agency specified in the order shall prepare, as expeditiously  as possible  and  ordinarily within a period of ninety days from the  date  of such order, a scheme with respect to such company providing for any one  or more of the following measures, enumerated in clauses (a) to (f) as under:-\n<\/p>\n
     “(a) the financial reconstruction of the sick industrial company:\n<\/p><\/blockquote>\n
     (b)  the  proper  management of the sick  industrial  company  by change in, or take over of, management of the sick in  industrial company:\n<\/p><\/blockquote>\n
     (c) the amalgamation of-\n<\/p><\/blockquote>\n
     (i) the sick industrial company with any other company; or<\/p>\n<\/blockquote>\n
     (ii) any other company with the sick industrial company:\n<\/p><\/blockquote>\n
     (hereafter  in this section, in the case of sub-clause  (i),  the other  company,  and  in the case of sub-clause  (ii),  the  sick industrial company, referred to as “transferee company”.\n<\/p><\/blockquote>\n
     (d) the sale or lease of a part or whole of any industrial undertaking of the sick industrial company:\n<\/p><\/blockquote>\n
     [(da)  the rationalisation of managerial  personnel,  supervisory staff and workmen in accordance with law:] <\/p>\n<\/blockquote>\n
     (e) such other preventive, ameliorative and remedial measures  as may be appropriate;\n<\/p><\/blockquote>\n
     (f)  such incidental, consequential or supplemental  measures  as may  be  necessary  or expedient in connection with  or  for  the purposes of the measures specified in clauses (a) to (e).\n<\/p><\/blockquote>\n
15.  One  of the measures, which may be provided for in the scheme,  to  be framed by Operating Agencies, is the sale or lease of a particular or whole of  an industrial undertaking or sick industrial company. Clauses (i),  (j) and  (k) of sub-section (2) of Section 18 with reference to clause  (d)  of sub-section  (1) of Section 18 further clarifies in detail as regards  sale or lease of a part or whole of any industrial undertaking of Sick Industrial Company as under:-\n<\/p>\n
     (i)  sale  of the industrial undertaking of the  sick  industrial company  free  from all encumbrances and all liabilities  of  the company  or  other such encumbrances and liabilities  as  may  be specified, to any person, including a co-operative society formed by the employees of such undertaking and fixing of reserve  price for such sale;\n<\/p><\/blockquote>\n
     (j)  lease of the industrial undertaking of the  sick  industrial company to any person, including a co-operative society formed by the employees of such under taking.\n<\/p><\/blockquote>\n
     (k) method of sale of the assets of the industrial undertaking of the  sick  industrial  company such as by public  auction  or  by inviting  tenders or in any other manner as may be specified  and for the manner of publicity therefor.\n<\/p><\/blockquote>\n
16.  Clause  (b) of sub-section (2) of Section 18 says that  amongst  other
\nprovisions,  the  scheme  may also provide for transfer  of  the  business, properties,  assets and liabilities of the Sick Industrial Company  to  the transferee Company on such terms and conditions, as may be specified in the scheme. While clause (i) in sub-section (2) above provides for sale of  the industrial undertaking of the Sick Industrial Company free from all  encumbrances  and all liabilities of the Company or other such  encumbrances  or liabilities,  as may be specified, to any person, including a  co-operative society  formed by the employees of such undertaking and fixing  a  reserve price for such sale; clause (b) of sub-section (2) does not make a  similar provision  of transfer of assets of the Sick Industrial Company, free  from
\nall encumbrances.\n<\/p>\n
17.  The scheme prepared by Operating Agency is required to be examined  by the Board, who is enjoined upon to publish or cause to be published,  after considering  suggestions and objections, if any. The Board is empowered  to modify  the draft scheme in the light of suggestions and  objections.  Sub-section  (6A)  of Section 18 envisages that a sanctioned  scheme,  when  it provides  for  transfer  of any property or liability  of  Sick  Industrial Company  in  favour of any other Company or person, the property  shall  be transferred  to, and vest in, and the liability shall become the  liability of such other Company, as the case may be. It reads:-\n<\/p>\n
     “6A.  Where a sanctioned scheme provides for the transfer of  any property or liability of the sick industrial company in favour of any other company or person or where such scheme provides for the transfer  of  any property or liability of any other  company  or person in favour of the sick industrial company, then, by  virtue of,  and to the extent provided in, the scheme, on and  from  the date  of  coming into operation of the sanctioned scheme  or  any provison thereof, the property shall be transferred to, and  vest in,  and the liability shall become the liability of, such  other company  or  person or, as the case may be, the  sick  industrial company.”\n<\/p>\n
18.  Sub-section (6A) of Section 18 also does not provide that transfer  of property  of  Sick Industrial Company will be free of all  encumbrances  or
\nthat it will vest in the transferee Company free from all encumbrances.\n<\/p>\n
19.  Section  22 of the Act provides for suspension of  legal  proceedings, contracts etc, in respect of an industrial Company with respect to which an inquiry  under  Section 16 of the Act is pending or for  which  any  scheme referred  to in Section 17 is under preparation or consideration  or  sanctioned  scheme is under implementation or where appeal under Section 15  is pending.  Section  22A of the Act empowers the Board,  in  certain  circumstances,  to direct the sick industrial company not to dispose  of,  except with  the  consent  of the Board, any of its assets during  the  period  of preparation  or consideration of the scheme under Section 18 or during  the period beginning with the recording of opinion by the Board for winding  up of  the company under sub-section (1) of Section 20 and up to  commencement
\nof  the  proceedings relating to the winding up before the  concerned  High Court. Section 26 creates a bar of jurisdiction of Civil Court or any other authority  over  matters, which are to be dealt with by BIFR or  AAIFR.  It says:-\n<\/p>\n
     “26. Bar of jurisdiction.- No order passed or proposal made under this  Act shall be appealable except as, provided therein and  no civil  Court  shall have jurisdiction in respect  of  any  matter which  the Appellate Authority or the Board is empowered  by,  or under,  this Act to determine and no injunction shall be  granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under  this Act.”\n<\/p>\n
20.  Effect of the provisions of this Act on other laws is provided for  in Section  32,  saying that the provisions of this Act and of  any  rules  or schemes  made thereunder shall have effect notwithstanding anything  inconsistent therewith contained in any other law.\n<\/p>\n
21.  WB Premises Tenancy Act, 1956 has been enacted under Entries 6, 7  and 13 of the Concurrent List. SICA 1985 was enacted under Entries 44 and 55 of the Union List by the Parliament. Both the enactments operate in two different  fields  of Legislation. The AAIFR in the impugned  order  (Annexure-A) held that in view of the proviso to Article 254(2) of the Constitution, the provisions  made in West Bengal Premises Tenancy Act, 1956 can be varied  or repealed by any law made by the Parliament with respect to the same  matter and thus proceeded to hold that BIFR had necessary jurisdiction and  powers to fix the rent of the Woodland Flat, the property belonging to  respondent No.7,  a sick industrial company for which a scheme had been sanctioned  by BIFR  as  well as ordering restoration of the possession by the  tenant  to respondent No.7. In holding so, in the impugned order, AAIFR observed:-\n<\/p>\n
     “Therefore,  in  view  of the proviso to Article  254(2)  of  the Constitution, the provisions made in West Bengal Premise  Tenancy Act 1956 can be varied or repealed by any law, made by Parliament with  respect to the same matter. The Act under which the  scheme was sanctioned by BIFR for the rehabilitation of AIJM was enacted by Parliament subsequent to the West Bengal Premises Tenancy Act, 1956.  The non-obstinate clause in S.32(1) of the Act, being  the later  Act,  over-rides the provisions of  West  Bengal  Premises Tenancy  Act, 1956. It is a self contained one. It  contains  detailed  provisions regarding the preparation of schemes for  sick industrial  companies and implementation thereof. A scheme for  a sick industrial company can, inter alia, provide for the sale  or lease  of  a part or whole of any industrial undertaking  of  the sick  industrial company (S. 18(1)(d) of the Act).  Clauses  (i), (j) (k) of sub-section 2 of Section 18 of the Act contain  provisions    about   the   sale   or   lease   of   the    industrial undertaking\/assets of the sick industrial company and the  procedure therefor; industrial undertaking of a sick industrial company can be sold free from all encumbrances and all liabilities  of the  company or such other encumbrances or liabilities as may  be specified,  to any person, and a reserve price may be  fixed  for such  sale;  the industrial undertaking of  the  sick  industrial company  can be leased to any person. Provision for lease  necessarily  implies determination of the lease rent. Therefore,  BIFR can, as part of a scheme prepared and sanctioned\/ modified  under various  provisions  of  S.18 of the Act, provide  for  lease  or transfer  of  the assets of the sick industrial company  and  all other incidental consequences, supplemental measures; in case  of lease,  such incidental, consequential or  supplemental  measures will,  naturally include details like period of lease, amount  of rent, termination of lease etc. Therefore, as regards the  assets of the sick industrial company, the provisions of the Act and the provisions made in any scheme sanctioned under the Act  over-ride  the  provisions  of West Bengal Premises Tenancy  Act,  1956.  We conclude  that BIFR has the necessary jurisdiction and powers  to fix the rent of the Woodland flat, a property belonging to AIJM – a sick industrial company for which a scheme has been  sanctioned by  BIFR – as well as order the restoration of the possession  of the said flat to AIJM.”\n<\/p>\n
22.  The aforementioned view taken by AAIFR is not in consonance with  law. Supreme  Court  in Tata Davy Ltd. Vs. State of Orissa and others   held that SICA, 1985 has been enacted by the  Parliament  under Entry  52  of  the Union List, which empowers Parliament  to  legislate  in respect  of  industries, the control of which by the Union is  declared  by Parliament  by law to be expedient in the public interest. The Central  Act declares  that it is for giving effect to the policy of the  State  towards securing  the principles specified in clauses (b) and (c) of Article 39  of the  Constitution, namely, that the ownership and control of  the  material resources  of  the  community are so distributed as best  to  subserve  the common  good and that the operation of the economic system does not  result in the concentration of wealth and means of production to the common detriment.  It  was held that SICA, 1985 does not impair or interfere  with  the rights of the States to legislate with respect to Sales Tax under Entry  54 of List II of Seventh Schedule.\n<\/p>\n
23.  Referring to the scope of Entry 52 of List I, in the content of legislature  dealing  with  regulation of supply and production  of  sugar  cane factories  required  for use in sugar factories, the Supreme Court  in  Ch. Tika  Ramji and others Vs. The State of Uttar Pradesh and others  observed:-\n<\/p>\n
     “Industry  in  the wide sense of the term’ would  be  capable  of comprising  three different aspects: (1) raw materials which  are  an  integral part of the industrial process, (2) the  process  of manufacture  or  production,  and (3)  the  distribution  of  the products of the industry. The raw materials would be goods  which would be comprised in Entry 27 of List 2. The process of manufacture  or  production  would be comprised in Entry 24  of  List  2  except where the industry was a controlled industry when it would fall  within  Entry  52  of List 2 except  where  they  were  the  products of the controlled industries when they would fall within Entry 33 of List 3.”\n<\/p>\n
24.  In B. Vishwanathiah and Company and others Vs. State of Karnataka  and others   quoting the aforementioned  passage  in  Tika Ramji’s case (supra), it was held that it is not all aspects of the  industry that fall within the scope of Entry 52 of List I. It is only one aspect of  the  industry, that is, the process of manufacture or  production  that falls  under Entry 52 of List 1. It does not include raw materials used  in the  industry or the distribution of the products of the industry.  In  Harakchand Ratanchand Banthia Vs. Union of India  and Kannan Devan  Hills  Produce Company Ltd. Vs. State of Kerala  also  this view was reaffirmed by the Supreme Court holding that  ambit  of
\nEntry  52 of List I should be limited and confined only to the  process  of manufacture  or  production of an industry.  Though  particular  expression “industry”  in  Entry 52 of List I in its wide sense  may  comprehend  many aspects, but in view of the scope of other entries in the other lists,  the ambit  of  Entry 52 of List I should be limited and confined  only  to  the
\nprocess of manufacture or production.\n<\/p>\n
25.  From the aforementioned, it can safely be said that what would fall in Entry  52 of List I is only the process of manufacture or  production.  The provision of SICA thus deal only with the process of manufacture or production  and for this reason alone industrial undertaking has been defined  in clause (f) of sub-section (1) of Section 3 of the Act to mean any undertaking pertaining to a scheduled industry carried on in one or more  factories by any company. Sick industrial company is an industrial company. Industrial Company is that company, which owns one or more industrial undertakings. Industrial undertaking in its turn is such an undertaking, which pertain to a scheduled industry carried on in one or more factories by any company. It however, does not include an ancillary industrial undertaking as defined in Industrial (Development and Regulation) Act, 1951 nor a small scale  industrial undertaking as defined in the said Industrial (Development and  Regulation) Act. By virtue of clause (4) of Section 1 also, the Act applies  to all scheduled industries other than schedule industry relating to ships and other  vessels drawn by power, Preamble of the Act also says that it is  an Act  dealing with special provisions with a view to securing timely  detection of sick and potentially sick companies owing industrial  undertakings. The  scope  of  SICA is limited to the provisions  and  contents  expressly stated  therein  and the powers and jurisdiction of BIFR and  AAIFR  cannot exceed those as are provided in SICA. BIFR wrongly relied upon Article  254 of  the Constitution, which can apply only in case the two enactments  fall under the concurrent list. One law may be repugnant to another if they  are with  respect to the same matter, which is not the position  here.  Article 254 of the Constitution has no applicability to the present case.\n<\/p>\n
26.  The  Supreme Court in Zeverbhai Amaidas. Vs. State of Bombay  on Article 254(2) held:-\n<\/p>\n
     “The important thing to consider with reference to this provision is whether the legislation is “in respect of the same matter”. If the  legislation deals with matters, which formed subject of  the earlier legislation but with other and distinct matters though of a  cognate  and allied character, then Art.254(2)  will  have  no application. The principle embodied in section 107(2) and Article 254(2) is that when there is legislation covering the same ground both by the centre and by the Province, both of them being competent to enact the same, the law of the Centre should prevail over that of the State.”\n<\/p>\n
27.  In  Deep Chand Vs. State of U.P. , it was  held  that repugnancy  between  two statutes may be ascertained on the  basis  of  the following three principles:-\n<\/p>\n
     “1. Whether there is direct conflict between the two provisions:\n<\/p><\/blockquote>\n
     2. Whether Parliament intended to lay down an exhaustive code  in respect  of  the subject matter replacing the Act  of  the  State Legislature; and<\/p>\n<\/blockquote>\n
     3.  Whether  the law made by Parliament and the law made  by  the State Legislature occupy the same field.”\n<\/p><\/blockquote>\n
28.  Three tests of inconsistency or repugnancy are referred to by Nicholas in his Australian Constitution, 2nd Edition, page 303:-\n<\/p>\n
     “1. There may be inconsistency in the actual terms of the competing statutes:\n<\/p><\/blockquote>\n
     (2).  Though there may be no direct conflict, a State law may  be inoperative  because  the Commonwealth law, or the award  of  the Commonwealth Court, is intended to be a complete exhaustive code, and<\/p>\n<\/blockquote>\n
     3.  Even in the absence of intention, a conflict may  arise  when both State and Commonwealth seek to exercise their powers over the same subject matter.”\n<\/p><\/blockquote>\n
     Supreme  Court in Tika Ramji’s case (supra) accepted the  above  three tests amongst others as useful guide to decide the question of repugnancy.\n<\/p><\/blockquote>\n
29.  In  M\/s.  Hoechst Pharmaceuticals Ltd. and another etc. Vs.  State  of Bihar and others , it was held:-\n<\/p>\n
     “Article 254(1) has no application to cases of repugnancy due  to over lapping found between List II on the one hand and List I and List  III  on the other. The question of repugnancy  arises  only when both the legislatures are competent to legislate in the same field  i.e. with respect to one of the matters enumerated in  the Concurrent  List. Hence Article 254(1) cannot apply unless  both the  union  and State laws relate to a subject specified  in  the Concurrent List and they occupy the same field.”\n<\/p>\n
30.  As SICA and W.B. Premises Tenancy Act occupy two separate and distinct fields,  there is no question of repugnancy and the view of AAIFR  that  by virtue  of Section 32(1), SICA will have an overriding effect on  the  W.B. Premises Tenancy Act is not correct. The provisions of Section 32(1) of the Act  will have an overriding bearing only in respect of those  laws,  which are inconsistent with SICA on the same subject.\n<\/p>\n
31.  WB  Premises  Tenancy Act relates to tenancies in the  State  of  West Bengal. SICA cannot be said to have conferred on BIFR or AAFIR any power to adjudicate  upon  the  tenancy rights or such other matters  for  which  WB Premises Tenancy Act has been enacted by the West Bengal State Legislature.\n<\/p>\n
     Dealing  with the provisions of SICA, 1985 and the scope and  applicability  of Section 22(1), the Supreme Court in Shree Chamundi  Mopeds  Ltd, Vs.  Church  of Bouth India Trust Association   held  that under Section 22(1) of the Act, only the following proceeding are automatically suspended:-\n<\/p>\n
     “(1) Proceedings for winding up of the industrial company:\n<\/p>\n
     (2)  Proceedings for execution, distress or the like against  the properties of the sick industrial company: and<\/p>\n
     (3) Proceedings for the appointment of receiver.”\n<\/p>\n
32.  It was held that eviction proceedings initiated by a landlord  against a  tenant  company would not fall in the categories  aforementioned.  While holding so, it was held that:-\n<\/p>\n
     “We  may,  in this context, point out that, as indicated  in  the Preamble,  the  Act has been enacted to make  special  provisions with  a view to securing the timely detection of sick and  potentially sick companies owning industrial undertakings, the  speedy determination  by a Board of experts of the  preventive,ameliorative,  remedial  and other measures which need to be  taken  with respect  to such companies and the expeditious enforcement  legal proceedings  contained  in  Section 22(1) seeks  to  advance  the object of the Act by ensuring that a proceeding having an  effect on the working or the finances of a sick industrial company shall not  be instituted or continued during the period the  matter  is under  consideration before the Board of the Appellate  Authority or  a sanctioned scheme is under implementation without the  consent of the Board or the Appellant Authority. It could not be the intention of Parliament in enacting the said provision to  aggravate  the  financial difficulties of a  sick  industrial  company while  the  said  matters were pending before the  Board  or  the Appellate  Authority  by enabling a sick  industrial  company  to continue  to incur further liabilities during this  period.  This would  be  the consequence if sub-section (1) of  Section  22  is construed  to bring about suspension of proceedings for  eviction instituted  by landlord against a sick industrial  company  which has  ceased to enjoy the protection of the relevant rent  law  on account  of default in payment of rent. It would also means  that the landlord of such a company must continue to suffer a loss  by permitting  the  tenant (sick industrial company) to  occupy  the premises  even  though it is not in a position to pay  the  rent. Such  an  intention  cannot be impugned to  Parliament.  We  are, therefore,  of the view that Section 22(1) does not cover a  proceeding instituted by a landlord of a sick industrial company for the eviction of the company premises let out to it.”\n<\/p>\n
33.  From  the facts, as are apparent on the record and as is the  admitted position the petitioner company is not a party to the scheme of rehabilitation.  Its  relationship  with respondent No.7 is that of  a  landlord  and tenant.  The Sanctioned Rehabilitation Scheme dated 4.2.1994,  inter  alia, stipulated some obligations on the outgoing promoters and the same were  to the following effect:-\n<\/p>\n
     “(a) To agree to transfer the shares held by them in the name  of  new  promoters  against  payment of written  down  value  of  the  shares.\n<\/p><\/blockquote>\n
     (b) To agree to freezing off of other dues owed by AIJM to original promoters and associates:\n<\/p><\/blockquote>\n
     (c) To agree to keep intact the investments held by AIJM  including shares held in Wool Combers of India Limited:\n<\/p><\/blockquote>\n
     (d)  To  facilitate handing over of office space of  4000  sq.ft. held by their associate concern, Landale & Clark, to new  promoters, at 18, Netaji Subhash Chand on leave and licence basis, and<\/p>\n<\/blockquote>\n
     (e) To hand over gratuity fund of Rs.140 lakhs or more accumulated for the benefit of employees to the new management.”\n<\/p><\/blockquote>\n
34.  Sanctioned Scheme nowhere made any provision as regards flat in  Woodland  Estate,  Alipur, Calcutta. The petitioners’ case is  that  petitioner No.1  company is a lawful tenant since 1.4.1991 and the flat is in  occupation  of its employee Shri Bakshi ever since. BHR rightly did  not  include the flat in question in the Rehabilitation Scheme because tenanted  properties are out side the purview of SICA. Handing over possession of the  flat by petitioner company to respondent No.7 has never been contemplated in the sanctioned scheme.\n<\/p>\n
35.  As noticed above, the scheme could provide for sale or lease of a part or  whole of any industrial undertaking of the sick industrial  company  to the transferee company [Section 18(1)(d) of SICA] and thereby to  transfer to the transferee industrial company of the business properties, assets and
\nliabilities of the sick industrial company on terms and conditions, as  may be  specified  in the Scheme [Section 18(2)(b) of SICA]. Only the  sale  of industrial  undertaking of sick industrial company could be free  from  all encumbrances. The flat in question cannot by any stretch of imagination  be covered  by  the definition of industrial undertaking. The  flat  would  be included only as an asset of the company. In case it has to be treated as a part  of  the asset of the sick industrial company, in that  case  assuming that  the  flat  of respondent No.7 company already  stood  transferred  by
\nvirtue  of clause (b) of sub-section (2) of Section 18 of the SICA  to  the
\ntransferee company, in that case it is not provided in the Act nor it is in the Scheme of the Act that such transfer will have the effect of  affecting the tenancy rights of a tenant. Tenancy being an encumbrance on the property, no such transfer of assets of the sick industrial company is  envisaged in the Act free from all encumbrances. At the most the transferee  company, will stop into the shoes of the Sick Industrial Company, in case assets  of respondent No.7 company can be said to have been transferred to the  transferee company. In that case the property will vest in the transferee company  with the tenancy remaining intact. The transferee company will have  to secure  eviction of the tenant only by having recourse to  the  proceedings under the WB Premises Tenancy Act, 1956 or under any other raw for the time being  in  force relating to the tenancies. Neither BIFR  nor  AAIFR  could exercise  authority or jurisdiction with respect to tenancy rights  of  the petitioner.  The petitioner company being not party to the Scheme of  Rehabilitation  and  having no connection with respondent No.7  company  except being  a  tenant of respondent No.7 company, there was no question  of  any misfeasance  proceedings  being taken out against  the  petitioner  company under  Section 24 of the Act. Neither BIFR nor AAIFR have any authority  to determine the tenancy or fix the standard rent or passing summary  eviction order. Bar of Section 26 has also no application. There is also no scope of applicability of Section 29 in the case. Section 29 authorises the Board or the Operating Agency, on being directed by the Board, to seek assistance of Chief  Metropolitan Magistrate or District Magistrate to take into  custody or under its control all properties, effects and actionable claims to which a  sick  industrial company is or appears to be entitled.  Properties  i.e. flat belonging to respondent No.7 company was under encumbrance (on  tenan-\n<\/p>\n
cy)  with the petitioner company. Section 29 no where authorises  Board  to seek  assistance  of  a Magistrate to take possession of  the  property  by removal of encumbrances.\n<\/p>\n
36.  A similar question arose when under Section 456 of the Companies  Act,
\n1956  the  Official  Liquidator was required to take into  its  custody  or control  all the properties of the company in winding up. The question  was whether  the  Official  Liquidator could demand actual  possession  of  the property  from  a mortgagee, who was in lawful possession of  the  same.  A Division Bench of Bombay High Court in Maharashtra State Financial Corporation, Bombay Vs. The Official Liquidator, High Court Bombay and  Liquidator of M\/s. Atrois Chemicals Private Limited  held that:-\n<\/p>\n
     “The property of the company does not vest in Court or  “Official Liquidator. The property remains the property of the company. The Official  Liquidator cannot take possession of the property  from the mortgages in lawful possession.”\n<\/p><\/blockquote>\n
     A Division Bench of this Court also in Globe Financiers (P)  Ltd. Vs. Official Liquidator. (1970) Vol.40 Company Cases 1161 held:-\n<\/p><\/blockquote>\n
     “There  is no provision in the Companies Act that the  liquidator shall  sell properties of the company free from  all  restrictive covenants or legal disability……..”\n<\/p><\/blockquote>\n
37.  The  petitioner is a company within the meaning of the Companies  Act, 1956.  Being a company it is an independent juristic entity. No notice  was issued to it by BIFR before passing the impugned order. Since no notice was issued, it had no occasion to depute its representative during the hearings before the BIFR. On behalf of the respondents, it was contended that  there
\nare circumstances on record to suggest that the petitioner company had  all along notice and knowledge of the proceedings through its authorised representative.  It  is  so stated by alleging that Shri O.P.  Chandak  who  has singed and verified the plaint in Suit No. 275\/95 in High Court of Calcutta and having described himself as the President and constituted attorney, had notice  of  the proceedings before BIFR. Shri Chandak was  present  in  the meeting  called by I.F.C.I. and also signed ratter on behalf of  petitioner No.1  company requesting I.F.C.I. to advise necessary developments  in  the matter  to enable petitioner No.1 company to arrange to do the  needful  in that respect. Shri P.K. Basu, Constituted Attorney and Principal Officer of the petitioner company appeared and pleaded before I.F.C.I at joint meeting on 31.1.1997 that respondents 8 and 9 and their associates held about 83.6% shares  in petitioner No.1 company. Khaitan & Co. Advocates  of  petitioner No.1  company,  who were also advocates for respondents 8 and 9,  had  sent notice  on behalf of respondents 8 and 9 and also on behalf  of  petitioner No.1 company.\n<\/p>\n
38.  ‘Be  that as it may, the fact remains and it is the admitted  position that  before making the impugned order as regards payment of enhanced  rent and  for  eviction,  no notice was even served by BIFR  on  the  petitioner company.  The  respondents are banking upon some circumstances  to  suggest that representatives of the petitioner were aware of the proceedings.  Such participation by the person in the proceedings will not be a substitute for proper  notice apprising the petitioner company of the exact nature of  the proceedings  pending  against it or allowing a fair  opportunity  of  being heard  since those representatives were not representing  the  petitioners, but  were representing respondents No. 8 and 9 only. Notice ought  to  have been  served  on  the petitioner that why an order be not  passed.  It  was necessary  to  have apprised the petitioner company that BIFR  intended  to pass such an order so as to enable the petitioner to raise all question  by it before BIFR, which were raised in the appeal preferred by it. Matter had to be examined before BIFR whether or not it could exercise jurisdiction or not.  However,  BIFR proceeded to examine material in the  absence  of  the petitioner  company and accepted the claim of respondent No.7 that  circumstances  suggest  that  the tenancy is bogus. When the  petitioner  had  no notice  from  BIFR, it has to be held that proceedings are  void.  No  such finding  could have been recorded without affording the petitioner  company an  opportunity  of being heard. The question that the plea of  tenancy  is mala fide or that there is no proper tenancy created in favour of petitioner company could not have been examined without any notice. The order being bad in law is liable to be set aside.\n<\/p>\n
39.  In  view of the above, we have no hesitation in allowing the  petition and  setting aside the impugned order holding that neither BIFR  nor  AAIFR has any authority or jurisdiction to pass impugned order against the  petitioner calling upon it to pay enhanced rent or to vacate tenancy  premises. The  order  of BIFR is also held to be bad in law because of  violation  of
\nprinciples  of natural justice. Accordingly, the writ petition  is  allowed and  the impugned orders are set aside. Parties are left to bear their  own costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Duncan International (India) … vs Appellate Authority For … on 21 July, 2000 Equivalent citations: 2003 115 CompCas 237 Delhi, 86 (2000) DLT 698, 2000 (54) DRJ 836 Author: D Gupta Bench: D Gupta, K Gupta ORDER Devinder Gupta, J. 1. In this petition filed under Article 226 of the Constitution of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-239279","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nDuncan International (India) ... vs Appellate Authority For ... on 21 July, 2000 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/duncan-international-india-vs-appellate-authority-for-on-21-july-2000\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Duncan International (India) ... vs Appellate Authority For ... on 21 July, 2000 - 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