# Kailash Nath Bajpai & others v. Hind Housing and Construction Ltd. and others

- **Citation:** (2000) 3 ILRA 211
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kailash-nath-bajpai-others-v-hind-housing-and-construction-ltd-and-others-39020
- **Pages:** 5

## Text

3All] Kailash Nath Bajpai & others V. Hind Housing and Construction Ltd. and others 211

make
a
representation
to
the
Detaining Authority also. Therefore, it
was incumbent upon the respondent no.3
to have communicated to petitioner of his
right to make a representation to the
detaining authority also while serving the
detention
order
as
contained
in
Annexures-1 and 2 upon the petitioner.
The respondent no.3 having failed in
observing constitutional mandate, the
order of detention passed by the said
authority as approved by the State
Government cannot be sustained and the
continued detention of the petitioner
under such order would be rendered to be
illegal.

14. We do not feel it necessary to
deal with the other submissions made on
behalf of the petitioner.

15. For the foregoing reasons, this
writ petition is allowed and the continued
detention of the petitioner is found to be
illegal. Respondents are directed to set
petitioner at liberty forthwith, if he is not
required to be detained in connection with
any other case.

16. No order as to costs.
Petition Allowed.

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By the Court

1.
M/S
Hind
Housing
and
Construction Ltd. (hereinafter referred as
the Company in liquidation) was ordered
to be wound up by this Court by order
dated 16.4.1970 passed in Company
Petition No. 18 of 1967. The Official
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

212
Liquidator attached to this court was
appointed the Liquidator of the said
company (in liquidation) as per section
449
of
the
Companies
Act.
The
Liquidator took possession of moveable
assets and record of the company through
District
Magistrate,
Lucknow.
The
company owned certain agricultural land
in village Behsa and Mati, Pargana
Bijnor. Tehsil and District Lucknow duly
recorded in the relevant revenue records
in the name of company (in liquidation).
The Official Liquidator sought permission
of this court through report No. 51 of
1983 to sell the landed property of the
company (in liquidation). By order dated
5.10.1983
this
court
granted
such
permission to the Official Liquidator.
When the Official Liquidator got the
revenue records verified on 7.3.1988, it
transpired that the entire land left over in
the aforesaid villages belonging to the
company
(in
liquidation)
had
been
acquired
by
A.D.M.
(Acquisition)/Competent Authority, Land
Ceiling, vide order and judgment dated
6.1.1988 in case no 1/2/12/32/94 of 198788. State vs. Ram Chandra Gurnani under
the U.P. Imposition of Ceiling on Land
Holdings
Act,
1960,
the
Official
Liquidator then made an application to
this court complaining that the entire
proceedings under the U.P. Imposition of
Ceiling on Land Holdings Act 1960 were
null and void and without jurisdiction for
the reason that after the winding up
orders, the property in question belonging
to company (in liquidation) had come in
the sustody of the court and were thus
custodia
legis
through
the
Official
Liquidator. No proceedings under the
aforesaid Ceiling Act of 1960 could take
place without the permission of this Court
under section 446 of the Companies Act.

2. By order dated 27.7.1994 this
court allowed the application of the
Official Liquidator whereby the order
dated 6.1.2988 declaring the land of the
company (in liquidation) as surplus was
quashed with the result the said land was
to be deemed to be belonging to the
company
(in
liquidation)
under
the
custody of the court thourgh Official
Liquidator. The above is the background
concerning the application A-16 made by
4 applicants, namely, Kailash Nath
Bajpai, Amitabh Adhar, Radha Krishna
Gupta and Mahendra Kumar.

3. The company (in liquidation),
Additional Tehsildar, Sadar Lucknow
Sub-Divisional Officer, Lucknow and the
Commissioner,
Lucknow
have
been
arrayed as respondents. The case, as set
up by the applicants, is that the winding
up order had been passed by this court on
16.4.1970 on a petition having been filed
by M/S Krishna Brick Field, Allahabad..
The company filed Special Appeal No.
364 of 1970 in which stay order was
passed
on
22.4.1970,
staying
the
operation of the winding up order which
was confirmed on 2.11.1970.But the
special appeal in question bearing Appeal
No. 364 of 1970 was dismissed in default
on 13.7.1973 and the application filed to
restore the same was also dismissed on
20.7.1974. The winding up petition had
been filed on 12.12.1967. Thus in fact
there was no effective winding up order
upto
13.7.1973.
On
2.2.1972
Seth
Hiranand Ram Chandra Gurnani, the then
Managing Director executed three sale
deeds in favour of Kailash Nath Bajpai,
Amitabh Adhar and Kishori Saran.
Another sale deed dated 4.2.1972 was
executed in favour of Sita Ram. The
present applicants no. 1 and 2 and
predecessors of applicants 3 and 4 were
3All] Kailash Nath Bajpai & others V. Hind Housing and Construction Ltd. and others 213

bona
fide
purchasers
for
valuable
consideration without any notice or
knowledge of winding up proceedings
pending against the company. To come to
the point, their contention is that after the
setting aside of the order of the ceiling
authority dated 6.1.1988 whereby the land
of the company (in liquidation) had been
declared surplus, the position as it stood
before 6.1.1988 has to be restored. They
made an application for mutation, which
was rejected by respondent no.2 on
3.7.1998 on the ground, that the vendor
(Company in liquidation) did not have the
title to sell the land . The relevevant
prayers made by the applicants are the
following:

(a-1) To issue suitable direction to
respondents no 2 & 3 for restoring the
name of company in all revenue records
as per the direction, contained in the
judgment and order of this Hon'ble Court
Dated 27.7.1994

(b)
To issue a suitable direction for
mutation of the applicants' names in the
relevant revenue records and Khatauni in
respect of Land situated in village Mati,
Pargana Bijnore, Tehsild and District
Lucknow after Expunging the entry
UNDER CEILING ACT, ADDITIONAL
DECLARED LAND' and restoring the
position as existing before 6.1.1988."

4. The Official Liquidator has filed
counter affidavit A -17 narrating the
history of the case. He has also filed as
Annexure 7 to his counter affidavit a copy
of the order dated 13.8.1998 passed by the
Additional
District
Magistrate
(Supply)/Prescribed Authority (Ceiling)
Lucknow in case no. 3 of 07-98, rejecting
the application of the applicants dated
24.3.1998 for correction of papers.
Rejoinder affidavit A-18 has been filed by
the applicant Radha Krishna Gupta.

5. I Have heard Sri A.K.Gupta,
Learned counsel for the applications and
Sri Sunil Ambwani, appearing from the
side
of
Offical
Liquidator.
The
submission of the learned counsel for the
applicants is that the applicants simply
want the name of the company (In
liquidation) to be mutated by way of
correction in the revenue record in
respect of the land in question which had
been declared as surplus by the Ceiling
Authority for the reason that the said
order of declaring the land as surplus was
quashed by this court vide order dated
24.7.1994. On the other hand, Sri Sunil
Ambwani has urged that actually the
applicants have no locus standi to make
any application in this behalf. The reason,
according to him. Is that the so-called sale
deeds
have
been
executed
by
the
Managing Director of the Company (in
liquidation) in favour of the applicants
and their predecessors after passing of the
winding up order which could not legally
be taken note of. Therefore, they now
have no business to intermeddle and to
stampede themselves.

6. I have considered the matter
carefully. It is an admitted fact that the
declaration of the land standing in the
name of the company (in liquidation) as
surplus by the Ceiling Authority came to
be quashed by this Court's order dated
27.7.1994. The resultant effect is that for
all practical purposes, the declaration of
land as surplus has to be ignored and the
position as obtaining earlier to 6.1.1988
before the Ceiling Authority passed the
order declaring the land as surplus has to
be retrieved. Really speaking, it is the job
of the Official Liquidator to take steps for
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

214
the mutation of the land in the name of
the company (in liquidation) again. The
land continues to be custodia legis
through him. Indeed, it has to be
proceeded with in liquidation as per the
relevant provisions contained in the
Companies Act 1956. It is not very
material that such a prayer for re-mutation
of the land in question in the name of the
company (in liquidation) has been made
by the applicants. In the proper sense, it
may be so taken that the applicants are
simply inviting the attention of this court
to this aspect of the matter that after
quashing of the order declaring the land a
ssurplus it (land) should be recorded in
the revenue papers in the name of the
company (in liquidation) and the records
should be corrected accordingly.

7. As per section 441 (2) of the
Companies Act, in a case not covered by
Sub-Section (I) of the said section, the
winding up of a company by the court
shall be deemed to commence at the time
of the presentation of the petition for the
winding up. Therefore, winding up of the
company in question which was wound
up on 16.4.1970 shall be deemed to have
commenced on 12.12.1967 when the
winding up petition was presented by M/S
Krishna Brick Field, Allahabad. The sale
deeds in favour of the applicants and their
predecessors stand still on a lower footing
as the same were executed in 1972 viz.,
after the passing of the actual winding up
order. The fact that for a certain period
the winding up order remained stayed
under the orders passed in Special Appeal
would not make any difference. The
Special Appeal was also ultimately
dismissed. In this view of the matter,
there can be no question of the applicants
or their predecessors acquiring title in
respect of the land covered by the sale
deeds relied upon by them. The sale deeds
have to be simply ignored. However, the
land in question which was declared
surplus by the Ceiling Authority by order
dated 6.1.1988 must be ordered to be
recorded back in the name of the
company (in liquidation) through Official
Liquidator for the obvious reason that the
declaration of the land as surplus was
quashed by this court by order dated
27.7.1994.

8. It is, therefore, ordered that the
land in question of Village Behsa and
Village Mati, Pargana Bijnore, Tehsil and
District Lucknow which was recorded in
the relevant revenue records in the name
of M/S Hind Housing Construction Ltd.
(which was declared surplus by the order
of the A.D.M. (Executive)/Land Ceiling
Authority by order dated 6.1.1988 in case
no. 1/2/12/32/94 of 1987-88, State vs
Ram Chandra Gurnani under the U.P.
Imposition of Ceiling on Land Holdings
Act,1960,
which
was
subsequently
quashed by this court vide order dated
27.7.1994) shall be recorded back in the
revenue records in the name of the said
company (in liquidation) through Official
Liquidator by the authorities concerned
(respondents no. 2 and 3) within fifteen
days of the production of a certified copy
of this order, either by the Official
Liquidator attached to the High Court,
Allahabad or by any of the applicants of
application no. A-16

9. Application A-16 stands disposed
of accordingly.
Application Disposed of.
3All] Dev Narain Dev V. State of U.P. and others 215

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By the Court

1. In this petition under section 482
Cr.P.C., the petitioner has assailed the
order of the learned Sessions Judge,
Bulandshahr passed in Criminal Revision
No. 81 of 1996 whereby he set aside the
order of the learned Chief Judicial
Magistrate taking cognizance of the
offence under section 397 I.P.C. in
complaint case no.551 of 1996.

2. The complainant, petitioner
herein, filed the aforesaid complaint
alleging that on 30.5.1996 at about 2 P.M.
the opposite parties (hereinafter referred
to as 'the accused persons) being armed
with this came to his house, dismantled
the roof and removed the rafters and other
materials. He lodged a report to the
police, but as no case was registered on
such report, he complained to the
Superintendent of Police. Even thereafter
when no action was taken, he approached
the
court
by
filing
the
aforesaid
complaint.
Learned
Magistrate
after
having recorded the statement of the
complainant
conducted
inquiry
as
onvisaged in section 202 Cr.P.C. in
course of which he recorded the evidence
of
witnesses
as
produced
by
the
complainant. Thereupon, on scrutiny of
the evidence he was satisfied that there is
a prima facie case under section 397
I.P.C. and accordingly took cognizance of
the said offence and issued process
against the accused persons for their
appearance.
Aggrieved
thereby,
the
accused persons preferred revision and
the learned Sessions Judge by the
impugned order set aside the order of the
learned Magistrate and dismissed the
complaint. The legality and propriety of
the said order of the revision court is
under challenge in the present proceeding.

3. Learned counsel appearing for the
complainant strenuously urged that the
revision court exceeded its jurisdiction
permitting the accused persons to lead
some
documentary
evidence
in
consideration whereof it came to hold that
since there was serious dispute with
regard to title and possession of the house