THE HON’BLE SRI JUSTICE B PRAKASH RAO AND THE HON’BLE SRI JUSTICE R KANTHA RAO O S A NO. 16 OF 2008 JUDGMENT : (Per Sri Justice B Prakash Rao) The appellant herein is Andhra Pradesh Housing Board represented by its Secretary/ an auction purchaser in the process of liquidation proceedings in the matter of M/s. Krishi Engines Private Limited, who files this appeal under Section 483 of the Companies Act, 1956 inter-alia aggrieved against the orders of the learned Single Judge in allowing the application purported to have been filed under Rule 9 of the Companies (Court) Rules, 1959 on Original Side Rules as per the orders in Company Application No. 207 of 2002 dated 23rd day of October, 2007 . Heard Mr J Prabhakar, learned standing counsel for the appellant board, Mr Anil Kumar, learned counsel appearing for Official Liquidator representing the company in liquidation/10th respondent and Mr N Subba Reddy and Mr Addepalli Suryanarayana, learned counsel appearing for contesting respondents 1 to 9. In the aforesaid application filed by the respondents 1 to 9 herein, they sought a direction to the respondents which include the appellant and other respondents herein to abide by the report of the Commissioner dated 23.3.2001 filed in L G C No. 78 of 1997 on the file of the Special Court constituted under A P land Grabbing (Prohibition) Act, 1982 and allow them to identify the immovable property claimed by them and the appellant and other respondents viz., land in respect of survey nos. 144,145 and 146, situated at Qutbullapur village, Ranga Reddy district. The main plank on which, the claim of the said petitioners rests on the basis of the title in respect of survey no.144 situate at Qutbullapur village, Ranga Reddy district. It has been pointed out that land admeasuring 4355 sq yards belongs to 5th respondent who in-turn sold the same to respondents 6 and 7 and the 9th respondent is owner to an extent of 1091 sq yards . All these extents are part of said survey no.144. However, the complaint is very narrow to the effect that the property or estate belonging to the company in liquidation i.e., M/s.Krishi Engines Private Limited only pertain to land in survey no. 145 and 146 of Qutubullapur village, which was sought to be proceeded against for realization of the amounts in pursuance of the liquidation proceedings. Therefore, in no way, the said company in liquidation is concerned or having any right, title or interest of whatsoever nature in respect of land in survey no. 144, Qutubullapur village, of which the said applicants claim their right. Therefore it was their case that under the guise of the parting with the land in those survey numbers viz., Survey No. 145 and 146 the land in survey No. 144 is being interdicted. The claim of the applicants vis-a- vis that of the company in liquidation was already considered and the respective lands were identified as per the report of the Advocate Commissioner dated 23.3.2001 which was part of the record in LGC No. 78 of 1997 on the file of the Special Court and therefore that itself is a conclusive piece of evidence to show the applicants’ claim and the usurp of the extent also the land belongs to the company in liquidation. It has been pointed out that attempt was made in the said Special Court for reviewing those proceedings. However, same was rejected as per the orders in I A No. 979 of 2001 dated 10.10.2001 leaving it open for the parties to take appropriate steps in the present proceedings in liquidation. Therefore, the application. These applications were contested by the appellant and other respondents. In the proceedings before the learned Single Judge, certain further developments have taken place in furtherance of identification of the lands and to establish the identity. The appellant herein is an action purchaser which was held on 17.9.2001 and where the bid offered by the appellant was accepted with certain conditions, the details of which are not necessary to be gone into at this stage, however, the possession of the said land stated to have been delivered to the appellant on 21.12.2001. Though it is the case of the appellant that the said proceedings dated 14.9.2001 are in order of confirmation of sale, however, said fact is not a correct one. Now it is the finding of the learned Single judge that though the auction was held on 17.9.2001 with certain conditions in regard to the payment of consideration, but there is no conferment nor there are any orders of confirmation passed. In this regard, there is no serious dispute nor any denial on the part of the respondents herein or even by the appellant himself. No proceedings as such have been shown by the appellant to show that the said auction made in their favour was confirmed by any order, however, yet the possession was stated to have been delivered on 21.12.2001 which factum itself was found fault by the learned Single Judge. Therefore, the fact remains that though there has been auction sale in favour of the appellant on 17.9.2001 there is no confirmation of sale . Having regard to the dispute as to the identity, the order was made by the learned Single Judge on 11.7.2002 to appoint an Advocate Commissioner for the purpose of making local inspection and to submit a report. The said Commissioner was also asked to take assistance of the survey officials. The direction was to conduct survey of the property in survey nos. 144, 145 and 146 of Qutubullapur village. In pursuance thereon, the Advocate Commissioner having conducted the local inspection submitted its report dated 8.10.2002 with a finding that an extent of Ac.3.35 gts in survey no. 145 belongs to the company in liquidation, an extent of Ac.2.19 gts was used for jagadgirigutta road and for widening Narsapur main road and the land was encroached upon by M/s.Telangana Spinning and Weaving Mills. In regard to survey No. 146 he opined that an extent of Ac.0.10 gts was acquired for Jagadgirigutta road and Ac.0.39 gts was encroached on northern side of the fencing erected by the Housing Board and therefore it was his opinion ultimately that an extent of Ac.24.24 gts out of the total area of Ac.26.39 gts in survey No. 145 is in possession of the Housing Board. Thus, it has been his finding ultimately that the land in possession was found to be lesser than the land for which an auction was held. Therefore the appellant filed objections on 25.11.2002 complaining several aspects. There was again another order by this Court dated 17.2.2003 followed by an order dated 6.3.2003 with a direction to make a revisit along with revenue officials, whereupon the said Advocate Commissioner submitted a report dated 31.3.2003 reiterating the points which he has made earlier. Once again, the appellant has filed its objections. The learned single Judge after taking into consideration the rival submissions and especially the report dated 8.10.2003 of the Advocate Commissioner appointed by the said Court, did not find favour to accept the plea of the applicants in respect of the alleged report submitted on 23.3.2001 in LGC Case No. 78 of 1997 holding that the same is invalid. It was found by the learned single Judge that the Court itself has taken similar such exercise, as such any exercise made earlier and before the Special Court is will not be valid. Therefore considering those later reports and without having consideration of the report dated 23.3.2001 learned single Judge ultimately opined that having regard to the findings contained in the later reports, since the land found is only Ac.24.24 guntas in survey Nos. 145 and 146 , therefore the sale is confirmed only to that extent and leaving it open to the appellant herein to submit separate application for refund of excess amount paid and appellant was directed to remove the fencing to an extent of the land comprised in survey no. 144 which was not owned by m/s Krishi Engines pvt Ltd (company in liquidation). It was also directed that the appellant is at liberty to approach the Official Liquidator for the purpose of demarcation of the land which is sold to them at their expenses. Hence, the appeal. On consideration of the submissions made across the bar by both the sides and on perusal of the material, the point which boils down for consideration is whether in the facts and circumstances of the case, the application as has been filed and framed by respondents 1 to 9 herein is maintainable and whether the objections of the appellant are valid and sustainable. From the above checkered events it apparently transpires that admittedly in the auction which was conducted on 17.9.2001 to an extent of Ac.26.30 guntas, the appellant is auction purchaser. Even though there was no orders of any confirmation or any proceedings in furtherance thereof before the learned Single Judge, possession was delivered on 21.12.2001 for the alleged extent of land. The property which was sold and belongs to the company in liquidation is only part of survey no. 145 and 146 and there is no claim of whatsoever nature in respect of survey no. 144. Therefore, necessarily whatever the claim of the appellant it has to be restricted only to the land in Survey No. 145 and 146 having regard to the claim put forth by the appellant in survey no.144 in their own independent right, title and interest with which the company in liquidation has no concern and as admitted by the Official Liquidator himself also there has been a serious dispute as to the identity of the property. It is the case of the applicant that under the guise of the auction proceedings their land in survey no. 144 has been encroached. In support of their claim they sought to place reliance on report dated 23.3.2001 filed before the Special Court, whereas the appellant sought to deny the said claim and in respect of the twin exercise for the purpose of local inspection made through the Advocate Commissioner and consequent reports filed on 8.10.2002 and 31.3.2003 which only goes to show that the extent of the land which was found ultimately is Ac.24.24 guntas out of Ac.26.30 guntas. Therefore, the learned single Judge restricting the purchase of the appellant to the said extent of Ac.24.24 guntas, gave the aforesaid directions. In regard to the report dated 23.3.2001 in L G C No. 78 of 1997 on the file of the Special Court, which was relied upon by the applicants and which was more seriously pressed into service before the learned Single Judge for establishing their claim, there was no consideration of the same on merits. There is nothing on record to show whether the said report is made part of the record in the manner as required under the law of evidence with affording proper opportunity to either side. Be that as it may, it is only having regard to the fact that the very same Special Court in view of the observations made in I A No. 979 of 2001 dated 10.10.2001 giving liberty to both the sides to approach the company Court for the purpose of seeking any relief, the present application has been filed by the applicants. Necessarily, it is to be seen that without considering the applications in the manner in which it has been filed, for a relief sought for, it has to be either straightaway acceded to or rejected. The main prayed in the petition with all the narration of the facts and circumstances in the affidavit is only to seek a direction against the appellant and other respondents to abide by the report dated 23.3.2001 in LGC Case No.78 of 1997 on the file of the Special Court and allow to identify the properties belonging to both sides respectively in survey no. 144 on one side and survey nos. 145 and 146 of Qutubullapur village on another. The learned single Judge by taking into account the later reports obtained before the Company Court , giving a finding as to the exactitude of the land on the site and therefore given the directions for confirmation and other consequences. However, there is no specific consideration as to whether on the prayer as sought for by the applicant, aas to whether it should be allowed or rejected. Especially the report dated 23.3.2001 relied on by the applicant is being rejected on the ground that the same is invalid having regard to the similar exercise already done by this Court itself, the question of entertaining further or consideration of the application filed by the applicants in its own sphere of relief sought, does not arise. Once the report dated 23.3.2001 is not being taken into consideration, it only follows that the application has to be rejected and consideration of all other aspects does not arise. Further, as observed by the learned single Judge, there being no confirmation of the sale in respect of the auction dated 17.9.2001 and yet possession was delivered on 21.12.2001, necessarily as a consequence to consideration of the said application No. 207 of 2002 the confirmation steps should have been taken. Further, certainly it warrant an exercise as to the location of the land to an extent of Ac.26.30 guntas in survey no.145 and 146, no such exercise has been done nor any of the reports dated 8.10.2002 or report dated 31.3.2003 show that there was any attempt in respect of the estate by revenue or survey officials to identify and locate the survey nos 145, 146 with its original extents as mentioned in the revenue record or as is being shown in the proceedings. Apparently the Commissioner did not make any exercise either to locate the land in Survey No. 145 and 146 or even the land in survey no. 144. Whether such a comprehensive exercise could be done or cannot be a subject matter of this appeal. However, the fact remains that neither there is any identification of Survey no. 144 as claimed by the applicants nor survey nos. 145 and 146 as claimed by the appellant. It has to be mentioned that in spite of such objection forthcoming on behalf of the appellant about encroachment in the process of liquidation and auction in respect of the land claimed by the applicants. However, yet except tying to find out as to the land in possession on site as claimed from both sides, there is no exercise to identify those survey numbers vis-à-vis its original extents. Therefore, we are of the view that the very application as has been filed by the applicant basing upon report dated 23.3.2001, cannot be acceded to, especially, when very same report dated 23.3.2001 is not accepted. However, we are not expressing any opinion as to the correctness or otherwise of the report dated 23.3.2001. In spite of the findings against the said report dated 23.3.2001 which is prime master piece of evidence on behalf of the applicants, no appeal has been filed by the applicant as against those observations, or even against the orders passed by the learned single Judge, the said report stood negatived and therefore nothing remains to be considered in the said application. In the circumstances, the appeal is allowed and the order of the learned single Judge dated 23rd October, 2007 in Company Application No. 207 of 2002 is set aside. However, it shall be open for the parties before the Company Court to take appropriate steps as may be expedient and warrant in the circumstances of the case. No costs. ________________ B.PRAKASH RAO,J ______________ R KANTHA RAO,J DATE: -08-2009 TVK