TaxTMI 
TaxTMI 
2018 (11) TMI 935
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....Srivastava,V.K. Tiwari,V.V. Tiwari,V.V.Tiwari ORDER Anjani Kumar Mishra,J. M/s Mitra Prakash Ltd. is under liquidation, pursuant to the order of its winding up, passed on 23.05.2005, the Official Liquidator appointed its liquidator and the assets of the Company are in possession of this Court. Official Liquidator filed Report (Judicial) No.170 of 2018 stating that he was being pressurized by the Municipal Commissioner to demolish the building, housing the machinery etc. of the Company (In Liquidation), annexing thereto a letter dated 24.07.2018 received by him from the Municipal Commissioner, Allahabad. The Court, prima facie, finding that the Municipal Commissioner was under political pressure to effect demolition, directed him to appear in person on 16.08.2018 along with the material which indicated that the building needed to be demolished, forthwith. On 16.08.2018, the Municipal Commissioner, Allahabad appeared in person and on his behalf, the Court was informed that various orders and letters written by him regarding demolition of the structure of the Company (in Liquidation) would be withdrawn. Therefore, an order was passed in open Court, exempting further ....
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....d stated that he had never visited the site of demolition. Since, certain photographs had been filed by the Official Liquidator showing persons carrying out demolition and the Court was also informed that the iron girders put in place to support the roof of the structure were missing, these photographs were directed to be supplied to the S.H.O., Mutthiganj and the case of theft of iron girders was also directed to be registered and investigated. It was further directed that Robin Sharma and Rakesh Kumar Gupta be produced before the concerned Magistrate, their police remand be obtained for further investigation and for seeking to identify the persons seen carrying out demolition in the photographs filed on behalf of the Official Liquidator. The Administration was also directed to place a police picket to protect the assets of the Company (In Liquidation), fixing the matter for 12.09.2018. On the next date, the matter was adjourned for 14.09.2018, on which date, the SHO, Mutthiganj filed a report stating that when the aforesaid two persons were produced before the Magistrate, they were sent on judicial remand and therefore, no investigation could be carried out. The S.....
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....igam, Allahabad and Shri Gopal Verma, Counsel for the Panchayati Akhada sought time to examine the same. The matter was therefore, ordered to be put up on 08.10.2018. On 08.10.2018, Shri Anoop Trivedi, counsel for the Nagar Nigam, Allahabad was directed to produce the original record regarding the alleged inspection by the Nagar Nigam of the property, which had been demolished and for the purpose, the matter was ordered to be put up on 09.10.2018. On 09.10.2018, Shri Gopal Verma, counsel appearing for the Akhada produced a pen drive containing photographs and video footage shot during the demolition of the property of the Company (In Liquidation) which in the custody of this Company Court. After viewing the photographs and video footage shot and upon finding that Rakesh Kumar Gupta one of the persons produced before this Court by the S.H.O.,Mutthiganj and whose interrogation by the S.H.O., Mutthiganj revealed that he was taken a stand that he was totally unaware and had never visited the site of demolition and finding that his photograph was there among persons standing on the site of the demolition while demolition was taking place, this Court considered it appropriate to....
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....iction lies with the Magistrate, concerned. The Company Court has no role to play in the matter. It cannot issue any directions as to how the investigation agency should proceed. This Court had directed to the SHO to obtain police remand of the persons allegedly connected with the demolition, which direction was totally without jurisdiction. I have also heard Shri Rajnath N. Shukla, counsel for the Official Liquidator at length. As regards, the Municipal Corporation, Shri Anoop Trivedi, its Counsel has stated that replies have already been filed by means of two affidavits of Mr. Raj Kumar Gupta, Assistant Municipal Commissioner and that he has nothing further to add. In rejoinder, the contention of learned Advocate General is that admittedly the building which has been demolished was in dilapidated condition. Several incidents had occurred in the State UP where dilapidated buildings fell down resulting in loss of life. Therefore, directions have been issued at the highest level for demolition of such dilapidated buildings. Therefore, if any demolition has been done, the same cannot be faulted with. In any case large scale demolitions have been carried out in Allahabad. ....
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....Highest Level for demolition of such dilapidated buildings. Learned Advocate General by the above noted succinct argument is in effect justifying the demolition of the building, which is admittedly in the custody of the Company Court, which demolition has been effected without any direction or sanction having been obtained by this Court. Before dealing with the arguments, this Court considers it appropriate to observe that on the previous hearings and for the reasons given in the earlier orders, this Court was constrained to and in face forced to issue the directions, whereby State of U.P. and the learned Advocate General are highly aggrieved. The starting point of the sequence of events, which have culminated in the instant proceedings before this court is an application dated 19.01.2018 made by the Secretary of Shri Panchayati Akhara Naya Udasin made to the Chief Minister, Uttar Pradesh. In this application, it has been stated that part of the building of Maya Press, lay in the land of the Akhara and that its major portion fell down five years ago; the remaining portion is also likely to fall down. A prayer has been made that the dilapidated portion be demolished and ....
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....re photo copies of two photographs, which only reveal that the roof of the structure has collapsed. The Additional City Magistrate-III, Allahabad thereafter on 16.05.2018 has written a letter to the Chief Engineer, Nagar Nigam, Allahabad calling for action under the relevant provisions of the Municipal Corporation Act. A copy of this letter has been endorsed to the S.H.O., Muthhiganj, to provide adequate police force, in case, the same is demanded. There is yet another letter of the Chief Secretary, Panchayati Akhara dated 20.06.2018, available in the file stating that in pursuance of the letter issued by the Chief Minister for removal of unauthorized occupation and for correction in the House Tax imposed upon the Akhara an inspection was made on 19.03.2018. The fact in this letter and the date mentioned therein are contrary to the facts mentioned in the letter of the Chief Engineer, Nagar Nigam, Allahabad dated 12.04.2018, which states that inspection of the allegedly dilapidated structure was made in pursuance of the order dated 20.03.2018 passed by the City Magistrate, Allahabad. In case, an order was passed by the City Magistrate, directing the Chief Engineer to ins....
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....intimated the Company Court in this regard. As soon as, the orders are passed, the same shall be communicated. Finally, a direction has been issued that the dispute has not been resolved fully and that it should be resolved and a report be furnished, thereafter. This letter was received in the office of the Nagar Nigam, Allahabad on 09.07.2018 itself and in pursuance thereof a letter has been written to the Official Liquidator on 24.07.2018 seeking his prompt action in this matter. This letter specifically mentions that the prompt action for demolition is being pressed for by the office of the Chief Minister, the Divisional Commissioner, Allahabad, as also the District Magistrate, Allahabad. From the facts noticed above, it is writ large on the face of the record that the entire proceedings by the Administration on the directions of the Chief Minister's Office were initiated on a complaint regarding eviction of unauthorized occupants from the land of the Akhara and an objection regarding incorrect assessment of the House Tax. Thereafter, the Akhara and its Counsel appear to have mislead the City Magistrate, Allahabad, by stating that the premises was not sealed nor ....
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....gs to the Company (In Liquidation). Not only has the structure been demolished, the rubble and steel girders have been removed, which were the property belonging to the Company (In Liquidation) and the same would have been sold to liquidate the Company and to clear the liabilities of the secured creditors and the dues of the workmen. By their demolition and theft, it is the interest of the secured creditors, who have an exposure in excess of several crores, as also workmen of the Company which has been jeopardized. Under Section 466 of the Companies Act, the Company Court can recover assets of the Company (In Liquidation), which may be in the possession of any person. However, such recovery is possible only once, after investigation, it is established as to who in possession, of the stolen assets of the Company (In Liquidation). In this factual backdrop and for determining as to who was responsible for the demolition and for removal of assets of the Company (In Liquidation) the investigation was being monitored by the Court. In the very first order, it had been recorded that, prima facie, the Official Liquidator was being pressurized to get the structures demolished and th....
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....oduced before the concerned Magistrate and the S.H.O. had the guts to make a statement before this Court that the order passed on 06.09.2018 had been produced before the Magistrate concerned. The S.H.O. therefore, is prima facie guilty of having made a false statement before this Court to mislead and also with a view to stifle the investigation. As already noticed herein-above, the property demolished and stolen, belongs to the Company (In Liquidation) and was in the custody of the Company Court to be used for liquidating the Company and for paying of the secured creditors and the workmen during the course of the winding up proceedings. Under the circumstances, another question, which arises for consideration is whether, such interference by any person and the attempt of the investigating agency and its failure to investigate the matter, amounts to interference with the functioning of the Court and the administration of justice, amounting to criminal contempt. In any case, since the S.H.O. Mutthiganj, Allahabad, who is stated to have since, been transferred, appears to have made a false statement before this Court. Therefore, notices under Section 340 Cr.P.C. to show ca....
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.... that it was not brought to the notice of the Court, points to the complicity of the Nagar Nigam and the Municipal Commissioner, Nagar Nigam, Allahabad in the matter. Under the circumstances, a notice is liable to be issued to Shri Awinash Singh, the Municipal Commissioner, Nagar Nigam, Allahabad under Section 340 Cr.P.C. as to why action should not be taken against him for having furnished a wrong fact in his own hand writing to the Court with the intention of misleading the Court. This is so, also because it has been stated by Shri Gopal Verma that the entire rubble of the demolition was transported out, in vehicles belonging to the Nagar Nigam, Allahabad. I also find substance in the submission of counsel for the Panchayati Akhard that the police have not made any attempt to collect evidence. It has neither tried to interrogate the persons, who are seen in the various photographs and video footage, brought on record by him as also by the Official Liquidator. The CD produced before this Court and the interrogation of the Robin Sharma and Rakesh Kumar Gupta seeks to given an impression that they have nothing to do in the matter or are not disclosing anything. Shri Rake....
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....ate General of U.P. is aggrieved is the direction of the Court, upon receipt of information of illegal demolition and theft, issued to the administration to post a police picket to stop any further pilferage of the assets of the Company (In Liquidation).This direction in any case, cannot be construed as interference in the investigation. The question as to whether, the Official Liquidator has failed to perform his duty in securing the assets of the Company (In Liquidation) is an entirely different aspect and one between the Court and the Official Liquidator. The investigating agency, once a F.I.R. has been lodged, cannot take the plea raised. There is not an iota of doubt that illegal demolition and theft has taken place. Therefore, it does not lie in the mouth of the State to plead that since theft has been taken on account of any alleged lapse on the part of the Official Liquidator, the State and the Investigating Agency are absloved of the statutory duty to investigate the matter properly and diligently. The stand of the State and the learned Advocate General, who appears for the administration and the investigation agency is therefore, found to be an attempt to shield the cu....
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.... has undoubtedly resulted in diminishing the value of the assets of the Company (In Liquidation), which will adversely effect the interest of the secured creditors as also the workmen. It would also be relevant to refer to Section 456(2) of the Companies Act, which provides that all the property and assets of the Company (In Liquidation) shall be deemed in the custody of the Court from the date of the order of its winding up. Section 456(2)(d), of the Companies Act, 1956, provides that the Company Court, notwithstanding anything contained in any other law for the time being in force, has jurisdiction to entertain, or dispose of, any question of priorities or any other question, whatsoever, whether of law or fact, which may relate to or rise in the course of the winding up of the Company. The question of illegal demolition and theft of the Company has arisen in the course of the winding up of the Company. The objections of learned Advocate General are therefore, rejected out right, not only on the ground that they lack merit but also because, prima facie, they appear to have been raised, malafide, and only with a view to protect the perpetrators of the illegal demolition an....