Adani Power Maharashtra Ltd. vs IFCI And Ors.

S.N.H. Zaidi, J

Heard parties' Counsel on appeal. The instant appeal has been fried qua the order dated 16.2.2012 passed by DRT-II, Delhi in Appeal No. 18/2012, whereby the direction given by the Recovery Officer (RO), vide order dated 19.1.2012 in RC No. 171/2001, to the appellant to vacate the property in question within two weeks has been confirmed but the direction to pay the penalty of Rs. 1.50 lacs for each day, has been set aside and the matter has been remanded to the Recovery Officer for fresh adjudication of the issue of liability of the payment of penalty. Mr. Nagar submits that the appellant is aggrieved only with the order qua the vacation of the property in question. Certain admitted facts, as emerged from the submissions of the parties' Counsel, are that an OA filed by IFCI (respondent No. 1) against Lan Eseda Industries (respondent No. 2) was allowed and an R.C. was accordingly issued. In the recovery proceedings, the property bearing Plot No. C-4/1 and C-4/2 measuring about 99 acres, situated at Gondia Industrial Area, Village Mandipar, Taluka and Distt. Gondia, Maharashtra of the CD/respondent No. 2, hereinafter referred to as the property in question, was put to auction sale by the R.O. wherein Plot No. C-4/1 was purchased by M/s. Hari Rice and Agro Pvt. Ltd. (respondent No. 4) and Plot No. C-4/2 was purchased by D.J. Enterprises (respondent No. 3). But before the sale could be confirmed, one of the bidders (M/s. Samvijay Rolling Mills) filed objection before the R.O., challenging the sale. The R.O., however, dismissed those objections and on 6.8.2008 the sale was confirmed and sale certificates were issued to the auction purchasers. Against the dismissal of the objections, an appeal was preferred by the objector and the DRT, vide order dated 6.10.2008, set aside the auction sale. The auction purchasers, respondent Nos. 3 and 4, preferred appeal before this Tribunal against the said order of the DRT, but this Tribunal vide order dated 9.6.2009, dismissed the said appeal and since in the meanwhile auction purchasers had come in possession over the property in question, they were held to be trespassers and were directed to be evicted within three weeks. The auction purchasers assailed the order of this Tribunal in Writ Petition WP(C) No. 10219/2009, before the Hon'ble Delhi High Court, but the same was dismissed vide judgment dated 4.5.2010 and the observation of this Tribunal that the possession of the auction purchasers is of that a trespasser and they are liable to be evicted, was upheld. The order of the High Court was challenged before the Hon'ble Supreme Court, but the SLP was dismissed in limine on 27.9.2010.

In the meanwhile, on 1.8.2010, respondents 3 and 4 had inducted Adani Power Maharashtra Ltd., the appellant, as tenant over the property in question allegedly representing their ownership on the basis of the sale certificates but suppressing that the sale in their favour had been set aside. The appellant, an electrical generating company, having a project for construction of a power plant at a nearby land, stored the equipments, machinery, etc., which, according to Mr. Nagar, were weighing about 97000 MT and worth about Rs. 1000 crores, on the property in question. The RO had appointed a Court Receiver for taking the physical possession over the property in question on the application of the CH, but when the Receiver visited the site he found heavy plant, machinery and equipments stored all over the property in question and as such he could not take physical possession thereof and submitted his report to the RO. The RO then issued notice to the appellant. The appellant appeared on 5.1.2012 and filed application before the RO seeking leave to vacate the property in question by the end of December, 2012. The RO dismissed that application vide order dated 19.1.2012, and directed the appellant to vacate the property in question within two weeks and also imposed a penalty of Rs. 1.5 lacs per day for the use and occupation thereof. The appellant challenged that order in Appeal under Section 30 of the RDDBFI Act before the Presiding Officer of the DRT-II, Delhi and the DRT disposed of that appeal by the order impugned with the directions as has been mentioned above.

Mr. Nagar submits that the appellant is not claiming any possessory right or legal title over the property in question. He further submits that the appellant had taken the properly in question on lease, on a rental of Rs. 33,000/- per acre per annum, when it was offered to it by the respondent Nos. 3 and 4, representing their title on the basis of sale certificates, as it was in need of land for storing its plant and machinery for the construction of the power plant. He further submits that the appellant is in the process of vacating the land in question and some of the land has already been vacated and the present volume of the plant and machinery has been reduced to 30000 MT. He points out that an adjacent plot (No. C-5) of Lan Esada Steel, has already been handed over to its owner. Mr. Nagar submits that the appellant is only seeking time to vacate the property in question by the end of December, 2012 and it will definitely vacate it by that time and it is ready to file an undertaking to that effect. He also points out that in another appeal filed by the borrower (respondent No. 2) the appellant has deposited Rs. 75 lacs towards the use and occupation of the property in question. Mr. Nagar also prays for stay of the operation of the order impugned in the meanwhile, so that the appellant may move out of the property in question or to take legal recourse.

Mr. Khan, the Counsel for the CH, respondent No. 1, submits that as per the appellant, it was cheated/defrauded by respondents 3 and 4 by misrepresenting about their title over the property in question, but no report has been lodged by it with the police or any concerned authority against them, which shows that the appellant was in the knowledge of all the facts qua the title of the property in question. He also submits that the appellant is seeking to continue its unlawful possession over the property in question, but since its possession is on the basis of alleged lease on behalf of respondent Nos. 3 and 4 who have already been held to be trespassers, therefore, it cannot be allowed by this Tribunal to remain in possession even for a single day.

Mr. Gupta, the Counsel for respondent No. 2, has reiterated that the possession of the alleged lessors of the appellant has already been held to be unauthorised and illegal by this Tribunal and they have been held to be the trespassers over the property in question and have been ordered to be evicted and the said order has been confirmed by the Delhi High Court and the Apex Court. He further submits that since the auction purchasers were having no legal right to the property in question, the appellant cannot be said to have received any legal right from them on the basis of the alleged lease. He also points out that though the alleged lease is said to be annual yet the lease deed is unregistered and not properly stamped, thus, no leasehold right has accrued in favour of the appellant on the basis of this document and the possession of the appellant over the property in question is illegal and it cannot be allowed to remain in possession thereof even up to December, 2012.

Mr. Data appearing for respondents 3 and 4 submits that the RC was issued against the borrower/respondent No. 2, in 2001 but it has neither deposited any money till date nor appeared for almost 11 years and had put in appearance before the RO in 2011, only when the objection qua the auction sale was filed. He further submits that the auction purchasers are still ready to purchase the property in question, if it is put to auction sale even on the 'as is where is basis'.

In rejoinder, Mr. Nagar has relied upon the following judicial authorities in support of his contentions wherein the Hon'ble Courts have allowed time to the tenants for the eviction from the premises in question:

Jai Prakash Gupta (D) thr. LRs. v. Riyaz Ahamad and Anr., VIII (2009) SLT 181.

Dunlop India Limited v. A.A. Rahna and Anr., IV (2011) SLT 597.

Ganga Devi v. Distt. Judge, Nainital and Ors., V (2009) SLT 266.

Deep Chandra Juneja v. Smt. Lajwanti Kathuria (Dead) through L.Rs.,.

M.M. Bilaney and Anr. v. Fali Rustomjt Kumar,.

The observation made or the view taken by the Hon'ble Courts on the facts and circumstances of these cases, being entirely different, do not apply to the present case.

Considering the submissions of the parties' Counsel, I am of the considered view that since the possession of the appellant over the property in question is without any authority of law and since it has come in possession thereof from respondents 3 and 4 who has already been held to be trespassers, therefore, the possession of the appellant is also as a trespasser which cannot be allowed to be continued even for a day what to say up to the end of this year. In view of this, the appellant has failed to show any case for staying the operation of the order impugned, which does not appear to be suffering with any illegality or infirmity.

The appeal being devoid of any force, is dismissed accordingly.

Copy of this order be furnished to the parties as per law.