Madhya Pradesh High Court
Sew Realty Limited Through Authorised ... vs The State Of Madhya Pradesh on 22 November, 2024
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
NEUTRAL CITATION NO. 2024:MPHC-IND:33214
1 WA-590-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
&
HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA
ON THE 22nd OF NOVEMBER, 2024
WRIT APPEAL No. 590 of 2023
SEW REALTY LIMITED THROUGH AUTHORISED SIGNATORY MR.
RAVI KISHORE KANNEGANTI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Shekhar Sharma, learned counsel for the petitioner.
Shri Mukesh Parwal, learned GA for the respondents No.1-4/State.
Shri Vinay Gandhi, learned counsel for the respondents No.5 & 6.
ORDER
Per: Justice Vijay Kumar Shukla The present intra-Court appeal is filed under Section 2(1) of the M.P. Uchcha Nyayalaya (Khand Nyaya Peeth Ko Appeal) Adhiniyam, 2005 being aggrieved by the order dated 14.03.2023 passed by learned Single Judge in W.P. No.4853/2023 whereby the writ petition filed by the appellant has been dismissed with liberty to the petitioner to resort the remedy available to him in accordance with the law.
02. Facts draped in brevity narrated in the appeal are that the appellant company i.e. SEW Realty Limited is registered and incorporated under the provisions of the Indian Companies Act, 1956 by the Registrar of companies Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 11/25/2024 6:08:40 PM NEUTRAL CITATION NO. 2024:MPHC-IND:33214 2 WA-590-2023 in Andhra Pradesh. The said company is dealing in the business of sale and purchase of real estate like agricultural land, plots, and other residential non- residential accommodations. The said company is one of the pan-India Company in the business of real estate. The appellant company for mobilization of its business activities used to purchase lands in the various places in India including state of Madhya Pradesh. The appellant has purchased land bearing Khasra No. 135/1 area 2.49 hectarés of village Khal Bujurg Patwari Halka No. 03, Tehsil Kasrawad, District Khargone through sale deed dated 31/03/2011 from M/s Khalghat Realities Pvt. Ltd. for the sale consideration of Rs. 56,76,769/-. Thereafter the appellant company enjoys the position of the said land and for convenience the appellant has also constructed some rooms. That a case of unauthorised mining of Murum was registered against SEW Infrastructure Limited company and in the said case a penalty of Rs.1,97,73,000/- was imposed upon it. For the recovery of the said penalty, respondent no.4 pursuant to directions of respondent no. 2 and 3 has initiated a recovery proceeding against SEW Infrastructure Limited company. Earlier on 20.11.2015 the proceeding was instituted by the respondent No. 4 and thereafter the respondent No. 4 for recovery of the said amount in terms of section 147 (b) of the M.P. Land Revenue Code, 1959 (hereinafter, referred to as, "MPLRC") has issued a demand notice against SEW Infrastructure Limited Company. The respondent No.4 on 15.01.2019 has issued a demand notice against the appellant. The appellant/petitioner submitted his response on 31.10.2019. In response to the aforesaid objection, the Patwari of the said village informed him that for the Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 11/25/2024 6:08:40 PM NEUTRAL CITATION NO. 2024:MPHC-IND:33214 3 WA-590-2023 recovery of the said dues, the property of the appellant was attached. The respondent No.4 in exercise of the powers conferred under Rule 6 framed under Section 147 of MPLRC on 21.11.2019 issued an auction notice of the said property of the appellant in which auction was scheduled on 12.12.2019. On 25.11.2019 it was informed by the concerned Deputy Collector to respondent No.2 that a Toll Naka was operated by SEW Infrastructure Limited Company in the Jamly Tehsil, District: Barwani from which due amount can be recovered for that he has sought appropriate instructions. Thereafter, on 29.10.2020 despite knowing the said fact that the respondent No.4 issued an auction notice on 29.10.2020 under Section 147 of MPLRC. The auction was scheduled on 10.11.2020 and the date was changed and auction was rescheduled on 18.11.2020, 11.12.2020 and 15.12.2020. On 15.12.2020 the auction was conducted and has confirmed the sale in favour of respondent No.4. The respondent No.4 in favour of respondent No.5 issued a sale certificate on 26.12.2020 under section 147(c) of MPLRC in form (Cha) Rule 8 on sale consideration of Rs.1,12,05,000/-. By order dated 23.01.2021, the respondent No.4 has mutated the name of the respondent No.5 in place of the appellant. The mutation was done in favour of the respondent No.5. Being aggrieved by the mutation in favour of the respondent No.5 by the respondent No.4, the appellant filed WP No.13247/2022 which was disposed of by order dated 08.07.2022 by granting liberty to the petitioner to raise all the issues regarding identity of the petitioner being different from the company SEW Infrastructure Ltd. The authority was directed to consider the objection and to pass an order in Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 11/25/2024 6:08:40 PM NEUTRAL CITATION NO. 2024:MPHC-IND:33214 4 WA-590-2023 accordance with the law within a period of one month from the date of filing of the objection by passing a speaking and reasoned order after affording opportunity of hearing to the parties. In compliance of the directions, the objection was submitted and by order dated 29.12.2022 the Tehsildar rejected the objection of the appellant/petitioner. Being aggrieved by the aforesaid order, the appellant/petitioner filed the writ petition WP No.4853/2023 which has been dismissed with liberty to resort to the other remedy by the impugned order.
03. Counsel for the petitioner has vehemently argued that the appellant/petitioner company "SEW Realty Limited" is a different entity from "SEW Infrastructure Pvt. Ltd.". The authorities have erred while holding that the appellant/petitioner is a holding and subsidiary company of SEW Infrastructure Pvt. Ltd. as 100% shares of the appellant/petitioner's company are with SEW Infrastructure Ltd. company. It is argued that since both the companies are different and distinct company, therefore, the respondents ought to have issued a notice to the appellant/petitioner company and thereafter the auction proceedings could have been conducted. Since no notice was issued to the appellant/petitioner company by the Revenue Authorities in proceedings under section 146 of MPLRC, therefore, the recovery proceedings, auction and the sale certificate are nullity and liable to be quashed. In support of his submission, he has placed reliance on the judgment passed by the High Court Kerala in the case of Walnut Packaging Private Limited vs. The Sirpur Paper Mills Limited decided on 18.03.2008. He referred para-33 of the said judgment wherein it Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 11/25/2024 6:08:40 PM NEUTRAL CITATION NO. 2024:MPHC-IND:33214 5 WA-590-2023 has been held that the holding and subsidiary company are separate and distinct and, therefore, they cannot be treated to be the same. Therefore, the learned Single Judge has erred in dismissing the writ petition on the ground that the petition involves disputed question of facts and the sale certificate confirmed by the authority in favour of the auction purchaser cannot be quashed in writ jurisdiction under Article 226 of the Constitution of India.
04. The petitioner further relied on the judgment passed in the case of Kedar nath Dubey (D) by Lrs. & Ors. vs. Sheo Narain Dubey (D) by Lrs. & Ors. MANU/SC/0392/2005 and Rakesh Kumar Goel & Ors. vs. U.P. State Industrial Development Corporation Ltd. & ors. MANU/SC/0453/2010 to support his submission that even in a writ jurisdiction, the sale certificate can be set aside. It is argued that writ of mandamus can also be issued for handing over the possession even after confirmation of the sale in auction when there is violation of fundamental right. He relied on the judgment passed by High Court of Allahabad in Behari Lal Baldeo Prasad vs., Commissioner, Jhansi Division & ors., Civil Misc. Writ No.2988/1964 decided on 16.03.1965. He also referred the judgment passed by Coordinate Bench in the case of Suresh Kumar & Ors. vs. Mohan Lal & Ors. 201194) MPLJ 513 wherein it has been held that auction proceedings for sale of appellants land for recovery of land revenue initiated by the respondent-State without issuing demand notice as required under section 146 or following the procedure under section 147 are null and void. The law laid down in the case of Suresh Kumar (supra) by coordinate Bench says that the demand notice has to be issued under section 146 and procedure has to be followed Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 11/25/2024 6:08:40 PM NEUTRAL CITATION NO. 2024:MPHC-IND:33214 6 WA-590-2023 prescribed under section 147 before auction proceedings for sale. There is no dispute to the aforesaid proposal of law, but here the notice was given to SEW Infrastructure Limited company which is admittedly having 100% shares of the appellant/petitioner company. The appellant/petitioner company has been found to be holding/subsidiary of SEW Infrastructure Limited Company. Thus the notice was issued as per the procedure prescribed under section 146 of MPLRC.
05. Per contra, counsel for the respondents supported the order passed by learned Single judge and vehemently argued that in pursuant to the order passed in earlier writ petition WP No.13247/2022, the Tehsildar considered all the issues raised by the petitioner and called a report from Patwari i.e. Annexure P/20 and on the basis of the record and report of the Patwari, the Tehsildar passed the order Annexure P/24 dated 29.12.2022 rejecting the objection of the petitioner.
06. After hearing learned counsel for the parties, we do not find any merit in the submission of learned counsel for the appellant. Upon perusal of the record, it is pellucid that there was an order of penalty for illegal mining and the total amount which was to be recovered from the company was Rs.1,97,73,000/-. After the order passed in W.P. No.13247/2022 filed by the petitioner wherein the petitioner was directed to submit a detailed objection before the Tehsildar and the Tehsildar was directed to consider and decide the objection of the petitioner, Tehsildar called a report from Patawari and vide Annexure P/20, Patwari submitted a report to the Tehsildar on the basis of assessment of the company records that the appellant/petitioner company Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 11/25/2024 6:08:40 PM NEUTRAL CITATION NO. 2024:MPHC-IND:33214 7 WA-590-2023 is holding/subsidiary company of SEW Infrastructure Limited Company. The 100% share of petitioner/company is owned by SEW Infrastructure Company Limited whose notices were issued and the recovery were initiated. It was also reported that most of the directors of both the companies are common. The registered address of both the companies and their emails are common. On the objective assessment of the record, Tehsildar after considering the report of the Patwari and record held that the appellant/petitioner company is holding/subsidiary company of SEW Infrastructure Ltd. and, therefore, the plea of the appellant/petitioner that both the companies are distinct and separate is without any substance. The said objection was rejected.
07. The learned Single Judge considering the aforesaid report of Tehsildar and the order of Tehsildar held that the appellant/petitioner company is a holding and subsidiary company of SEW Infrastructure Limited and, therefore, the contentions of the appellant/petitioner company that both the companies are different and distinct because of separate account sheets etc. cannot be appreciated in a writ petition under Article 226 of the Constitution of India. The disputed question of facts are involved which cannot be adjudicated in the writ jurisdiction and if the appellant/petitioner desires to seek cancellation of sale deed after its confirmation in an auction in favour of the respondent No.5, the appellant/petitioner has to resort to the remedy available to him in accordance with the law. The judgment rendered in the case of Kedar Nath Dubey (D) by Lrs. (supra) and Rakesh Kumar Goel (supra) by the Apex Court would not render any assistance to the facts Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 11/25/2024 6:08:40 PM NEUTRAL CITATION NO. 2024:MPHC-IND:33214 8 WA-590-2023 of the present case. Those were not the judgments dealing with issue of distinct and separate two companies. The judgment of Kerala High Court is also on different facts. In the present case, there is a specific report of Patwari based on consideration of relevant record stating that the appellant/petitioner is holding and subsidiary of SEW Infrastructure Limited company and 100% shares of the appellant/petitioner company are holding by the SEW Infrastructure Limited Company. The Tehsildar has passed a well reasoned and speaking order after considering the records of both the companies and report of Patwari. He has also not impleaded SEW Infrastructure Limited Company if his contention was that it is not his liability, but it is the liability of the said company.
08. The petitioner argued that the revenue authorities have acted in a malicious and bias manner, but he has not made any allegation of malafide against any revenue authority.
09. In the case of Baddula Lakshmaiah and others vs. Sri Anjaneya Swami Temple and others, (1996) 3 SCC 52 , the Apex Court ruled that in an intra-court appeal the appellate Court is a Court of Correction which corrects its own orders, in exercise of the same jurisdiction as was vested in the Single Bench. Such is not an appeal against an order of subordinate court. In such appellate jurisdiction the High Court exercises the powers of a Court of Error.
10. In view of aforesaid, we do not find any illegality in the impugned order passed by the learned Single Bench warranting any interference in this Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 11/25/2024 6:08:40 PM NEUTRAL CITATION NO. 2024:MPHC-IND:33214 9 WA-590-2023 intra-court appeal. Accordingly, the writ appeal deserves and is hereby dismissed.
No order as to costs.
(VIJAY KUMAR SHUKLA) (DUPPALA VENKATA RAMANA)
JUDGE JUDGE
soumya
Signature Not Verified
Signed by: SOUMYA
RANJAN DALAI
Signing time: 11/25/2024
6:08:40 PM