Jharkhand High Court
Jharkhand Urja Vikas Nigam Limited ... vs Asl Enterprises Limited on 11 April, 2022
Bench: Shree Chandrashekhar, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Letters Patent Appellate Jurisdiction)
L.P.A No. 337 of 2011
1. Jharkhand Urja Vikas Nigam Limited through its Law Officer, Mithilesh
Kumar, s/o Sri R.B. Choudhary, r/o Sector-II, Dhurwa, PO-Dhurwa, PS-
Jagarnathpur, District-Ranchi officiating at Dept. of Legal Affairs, Near
Nepal House, PO & PS-Doranda, District-Ranchi
2. The General Manager cum Chief Engineer, Singhbhum Electric Supply
Area, Jharkhand Urja Vikas Nigam Limited, Co-operative Bank Building,
Bistupur, Jamshedpur, PO & PS-Bistupur, District-East Singhbhum
3. The Electrical Superintending Engineer, Adityapur Electric Supply Circle,
Jharkhand Urja Vikas Nigam Limited, Vikash Bhawan, PO & PS-Adityapur,
District-West Singhbhum
4. The Electrical Executive Engineer (C&R), Singhbhum Electric Supply
Area, Jharkhand Urja Vikas Nigam Limited, Vikash Bhawan, PO & PS-
Adityapur, District-West Singhbhum ..... Appellants
Versus
ASL Enterprises Limited, a Company incorporated under the provisions of
the Companies Act, 1956 and having its Registered Office at 'Punwari
Chambers', 7B, Kiran Shankar Roy Road, 1st Floor, Kolkata-700001
.... ... Respondent
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellants : Mr. Mrinal Kanti Roy, Advocate
For the Respondent : Mr. M.S. Mittal, Sr. Advocate
Mr. S.L. Agarwal, Advocate
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ORDER
11th April 2022 Per, Shree Chandrashekhar, J On oral submission of Mr. Mrinal Kanti Roy, the learned counsel for the appellants permission is granted to carry out further corrections in the memo of parties to the extent that "Jharkhand State Electricity Board" shall be replaced by "Jharkhand Urja Vikas Nigam Limited" (in short, JUVNL). The corrections shall be carried out during the course of the day with red ink.
2. The appellants have challenged the order dated 30th August 2011 passed in W.P.(C) No.1990 of 2011 by which the action of the appellants in not issuing "No Objection Certificate" (NOC) to M/s BECO Industries Private Limited (now, M/s ASL Enterprises Limited) for switching over to 2 L.P.A. No.337 of 2011 another licensee JUSCO was found not proper and the writ Court issued a direction to the appellants to issue 'NOC' to the industry within 30 days without insisting on further payment.
3. In the order dated 30th August 2011 passed in W.P(C) No. 1990 of 2011, the writ Court has held as under:
"11. So far the question of interim order not deciding any ratio or having binding effect is concerned, evidently W.P.(C) No. 36 of 2010 was finally disposed of in terms of the same interim order. However, accepting the argument that the order was passed on the facts and in the circumstances of a particular case, I proceed to decide the facts of the instant case as well. The prayer of the previous writ petition W.P.(C) No. 171 of 2005 quoted in paragraph 7 of this writ petition is not disputed by the respondents in their counter affidavit. Paragraph 11 of the counter affidavit is a consolidated reply to the statements made in paragraphs 3 to 7, 10 to 12, 14 to 19 and 26 to 29 of the writ petition. Thus the prayer is admitted in the present petition. I had also specifically questioned to Mr. M.S. Mittal, senior counsel appearing on behalf of the petitioner, regarding the dues to the tune of Rupees Three Crores and odd and during course of his argument, while giving rejoinder to the argument of Mr. V.P. Singh, it was brought to my notice that the amount is exorbitantly escalated on account of levy on Delayed Payment Surcharge and the same having been levied on part of such amount which continued to be in deposit with the Board, but for some reason, the same could not be credited in its account. This argument is not disputed and, therefore, Rs. 5,00,000/- which has been deposited pursuant to an interim order by this Court continues to be in deposit with the Board besides the undertaking filed by one of the Directors and the Managing Director along with the document pertaining to landed property before the Registrar General of this Court is sufficient undertaking and security. However, the objection that the original document has not been deposited cannot be overruled. In view of the circumstances, in my opinion, the petitioner shall submit the original document, if not deposited till date of the property furnished as 'security' along with an affidavit of Dilip Kumar Goel and thereafter the respondents Board shall issue NOC within 30 days without insisting for further payment. Also remove all its equipments to enable the petitioner to get a fresh electricity connection.
12. This writ petition is, accordingly, disposed of with the aforesaid directions. The parties shall make compliance forthwith within the prescribed period."
4. The order dated 30th August 2011 records that there was some dispute as regards levy of delayed payment surcharge and an amount of Rs.5 lacs was deposited by the industry as a condition for grant of interim order pursuant to an order passed by the writ Court in W.P.(C) No. 171 of 2005. The order dated 30th August 2011 would indicate that one of the Directors of M/s BECO Industries Private Limited was directed to deposit original 3 L.P.A. No.337 of 2011 documents pertaining to the landed property with the Registrar General of this Court.
5. Mr. M.S. Mittal, the learned senior counsel for the respondent states that in compliance of the order passed by the writ Court original land documents were deposited with the Registrar General of this Court.
6. Pursuant to an order passed by this Court on 7 th March 2022 an affidavit as noticed in the previous order dated 5th April 2022 has been filed by JUVNL stating that 'NOC' was granted in favour of the industry vide Memo No. 3079 dated 6th November 2013. It is further stated in paragraph no.8 of the affidavit dated 5th April 2022 that claim of JUVNL for Rs. 3 Crores & odd is the subject matter of W.P(C) No.171 of 2005.
7. Mr. Mrinal Kanti Roy, the learned counsel for the appellants states that for early hearing of W.P(C) No. 171 of 2005 the appellants shall be filing a mentioning slip before the jurisdictional Bench.
8. We have recorded in our order dated 5th April 2022 that by virtue of the order dated 21st December 2012 passed in Company Petition No. 197 of 2012 with Company Application No. 330 of 2012 M/s BECO Industries Private Limited and M/s Chirag Vatika Private Limited merged together with M/s ASL Enterprises Limited.
9. We have already noticed that in paragraph nos.1 and 2 of the order dated 21st December 2012 the Hon'ble Single Judge of the High Court at Calcutta has recorded that all rights and interests of the transferor company nos.1 and 2 shall be transferred to and vest in M/s ASL Enterprises Limited. It has further been recorded that all the liabilities and duties of the said transferor company nos.1 and 2 shall be transferred from the said transfer date without further act or deed to the said transferee company and accordingly the same shall pursuant to section 394(2) of the Companies Act, 1956 be transferred to and become the liabilities and duties of the said transferee company.
10. In view of the pending litigations between the parties in W.P(C) No. 171 of 2005 and compliance by the erstwhile M/s BECO Industries Private Limited of order dated 30th August 2011 passed in W.P.(C) No.1990 of 2011 more particularly because pursuant to 'NOC' dated 6 th November 2013 granted by the appellants the industry shifted to JUSCO, the issue 4 L.P.A. No.337 of 2011 sought to be raised in the present Letters Patent Appeal has become academic and therefore we are not inclined to adjudicate the said issue on merits leaving the issue open for a decision in another case.
11. Subject to the decision in W.P(C) No. 171 of 2005, L.P.A No. 337 of 2011 stands disposed of with liberty to the appellants to recover dues from M/s ASL Enterprises Limited, in accordance with law.
12. Consequently, I.A. No. 1960 of 2019 stands disposed of.
(Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated : 11th April 2022 R.K/sudhir/N.A.F.R