ATIQ MALIK Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) By means of this petition, moved under Article 226 of Constitution of India, the petitioner has sought writ in the nature of certiorari quashing the impugned judgment and order dated 5-5-2005 (copy Annexure 14 to the writ petition), passed by District Magistrate, Champawat. A mandamus has also been sought not to interfere in petitioner's exercise of property rights over the property purchased by him through the proceedings taken by Recovery Officer, Debt Recovery Tribunal-II, Kolkata.

(2.) Heard learned counsel for the parties.

(3.) Brief facts of the case are that an advertisement (Annexure-1 to the writ petition) was issued in the newspaper by Recovery Officer, attached to Debt Recovery Tribunal- II, Kolkata in T.R.C. No. 06 of 2002, Dena Bank v. M/s. KHSL Industries Limited, for sale of industrial units, one of which is located at Tanakpur, District Champawat in Uttaranchal. The petitioner in pursuance to said advertisement, submitted his tender complying the condition of sale notice. The bid of the petitioner being highest at Rs. 9,00,000/- was accepted and sale confirmation order dated 9-8-2004 (copy Annexure-2) and sale certificate dated 9-8-2004 (copy Annexure-3) in respect of the movables of debtor company (except for the item known as Bucket Elevator) was Issued in favour of the petitioner. Also, the bid in respect of immovable property submitted by the petitioner was found highest. However, meanwhile one M/s. Kristina Vlnimoy, a company participating in the auction filed its objection on which the Debt Recovery Tribunal stayed the proceedings in the matter. But later, the said order was modified and the sale of immovable property in favour of the petitioner was also confirmed (confirmation order and certificate are Annexure- 7 and 8 to the writ petition). The receiver of the property was directed to handover the possession of the property to the petitioner and delivery of possession was made vide memorandum-dated 16-4-2005 (Annexure- 11 to the writ petition) to the petitioner. Since then the petitioner is in actual physical possession of the property purchased by him in the aforesaid sale. ft. appears that in the year 1999, company petition No. 77 of 1999, was filed by Dena Bank and another for winding up of the company under Sections 433, 434 and 439 of the Company Act, 1956, before High Court judicature at Allahabad, wherein judgment and order-dated 15-10-2003 (Annexure-12 to the writ petition) was passed directing winding up of the company. In pursuance to said order, it appears that the Official Liquidator made request to the District Magistrate, Champawat to take charge of unit at Tanakpur. Consequently, a representative of the Official Liquidator accompanied by local Tehsildar, demanded possession of the premises from the petitioner. When the petitioner disclosed to said persons that he is the owner of the property, the District Magistrate without issuing notice and affording any opportunity of hearing to the petitioner unilaterally acted on the report of Tehsildar and passed the impugned order dated 5-5-2005 (Annexure- 1 4 to the writ petition) restraining the petitioner from alienating or dissipating the movable and immovable property of the unit purchased by him. Aggrieved by said order, this writ petition has been filed relying on the principle of law laid down in Allahabad Bank v. Canara Bank & another, Judgment Today, 2000 (4) SC 411 : AIR 2000 SC 1535. In other words, it is alleged by the petitioner that the provisions of Recovery of Debts Due to Banks and Financial Institutions Act, 1993, has an overriding effect over the provisions of Companies Act.