Case: National Textile Corporation(Sm) Vs. Associated Building Company

(2) Even on the merits, the High Court was in error in holding that no enforceable right vested in the Custodian under Section 3(2) of the Act to take possession of the premises wherein the registered office of the Tata Mills Ltd. in Bombay House was located. On the other hand, Mr. soli J.Sorabjee, Counsel for petitioners 1 to 5 submitted that the maintainability of the Writ Petition was not put forward before the High Court either in the counter-affidavits failed on during arguments and on the basis averments contained in the affidavits filed, parties joined issue and argued the matter. It is no longer open to the appellant to contend that the parties may be relegated to the ordinary remedy at law to seek redress. He further contended, that on merits, the High Court was justified in holding that the Tata Mills Limited had no enforceable or definite right in the space where the registered office was located in Bombay House and so the Controller was incompetent and could not seek possession on control or unspecified portion of Bombay House. 12. The affidavits filed in the case disclose that when petitioners No.1 and 5 were informed that immediate possession and control of the Tata Mills office at Bombay House will be taken, they promptly replied by communication dated 18.1.1984 that no specific part or portion of the Bombay House was allotted to the Tata Mills Limited, and the Mills were allowed to continue the registered office gratuitously and the records of the company will bear out this fact. The respondents were also informed that the Tata Mills Limited have no right, title or interest whatsoever in any portion of the Bombay House which could be handed over or taken possession of by the Custodian. The over or taken possession of by the Custodian. The respondents did not care to verify the records of the company. The appellant should have gathered material to know the nature of the arrangement by which the registered office of the Tata Mills Limited was functioning in the Bombay House. Since the entire assets of the Tata Mills Limited had vested in the Government, the records should be available with the Custodian. He could have verified the records. He could have asked petitioner No.1 to produce relevant records, if any, available with it in that regard . When objection was taken regarding the basis facts, one would normally expect the respondents to verify the records and then only to proceed further in the matter, or to stay their hands and intimate the parties concerned that they will proceed only in accordance with law. This is the appropriate procedure to be adopted by any public on statutory authority placed in similar circumstances. The respondents totally failed to do so. Such inaction necessarily led to the filing of the Writ Petition. We are of the view that the Writ Petition filed by petitioners No.1 to 5, in the circumstances, is really a defensive action.The fact that petitioners No.1 to 5 figured nominee as Petitioners in the Writ Petition, is irrelevant. The burden is on the respondent to prove that the Tata Mills Limited had any definite and enforceable right in Bombay House which vested in the respondents under Section 3 of the Act and capable of being enforced. This is a basic or jurisdictional f act which should have been proved by the respondents. The plea put forward by the respondents that the occupation of the Tata Mills Limited if a portion of the Bombay House as tenants or that they had any enforceable right or power or asset, was not based on any material. IT was not substantiated at all. The plea of the petitioners stated in their communications dated 18.1.1984 and reiterated in the Writ Petition, was not dis-proved, in the above circumstances, the High Court, in our opinion, correctly reached the conclusion that the action of the respondents by addressing the letter dated 16.1.1984 seeking possession and control of unspecified portion of Bombay House, is without jurisdiction.13. We are of the opinion that the respondents have totally failed to prove that there was any enforceable right or interest of the Tata Mills Ltd. in any portion of the Bombay House, and in the circumstances, no part or portion of the Bombay House, formerly occupied gratuitously by the Tata Mills Limited, vested in the Central Government under Section 3 of the Act. The assumption by the respondents to the contrary is not justified in law.14. It is significant to note that no plea was taken in the counter affidavits filed by the respondents that the Write Petition is not maintainable or that further evidence is required to be taken to adjudicate the rival pleas put forward by the parties. We reject the plea so urged before us for the first time in this appeal. Having chosen to fight to case on the basis of affidavits, it is not open to the appellant to contend that factual aspects involved leading of evidence and the High Court should have declined jurisdiction under Article 226 of the Constitution. The plea that the occupation of the Tata Mills Limited of a portion of the Bombay House was as a tenant or lessee or licensee or that there existed any power or asset, is based on no material, but mere assertion. Respondents had every opportunity to verify the relevant records to ascertain under what arrangement the Tata Mills Limited was occupying the undivided and undemarcated portion of the Bombay house for its registered office. Normally, the records of the T ata Mills Ltd. should be with the Custodian. Even if the relevant records were not available, the respondents could have required of petitioner No. 1 or petitioner No. 5, to produce whatever records were available with them, to probe into the matter further. They failed to do so. Instead, they acted at their ipse dixit to take possession of the premises in Bombay House. This was totally unreasonable and unjustified.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]12. The affidavits filed in the case disclose that when petitioners No.1 and 5 were informed that immediate possession and control of the Tata Mills office at Bombay House will be taken, they promptly replied by communication dated 18.1.1984 that no specific part or portion of the Bombay House was allotted to the Tata Mills Limited, and the Mills were allowed to continue the registered office gratuitously and the records of the company will bear out this fact. The respondents were also informed that the Tata Mills Limited have no right, title or interest whatsoever in any portion of the Bombay House which could be handed over or taken possession of by the Custodian. The over or taken possession of by the Custodian. The respondents did not care to verify the records of the company. The appellant should have gathered material to know the nature of the arrangement by which the registered office of the Tata Mills Limited was functioning in the Bombay House. Since the entire assets of the Tata Mills Limited had vested in the Government, the records should be available with the Custodian. He could have verified the records. He could have asked petitioner No.1 to produce relevant records, if any, available with it in that regard . When objection was taken regarding the basis facts, one would normally expect the respondents to verify the records and then only to proceed further in the matter, or to stay their hands and intimate the parties concerned that they will proceed only in accordance with law. This is the appropriate procedure to be adopted by any public on statutory authority placed in similar circumstances. The respondents totally failed to do so. Such inaction necessarily led to the filing of the Writ Petition. We are of the view that the Writ Petition filed by petitioners No.1 to 5, in the circumstances, is really a defensive action.The fact that petitioners No.1 to 5 figured nominee as Petitioners in the Writ Petition, is irrelevant. The burden is on the respondent to prove that the Tata Mills Limited had any definite and enforceable right in Bombay House which vested in the respondents under Section 3 of the Act and capable of being enforced. This is a basic or jurisdictional f act which should have been proved by the respondents. The plea put forward by the respondents that the occupation of the Tata Mills Limited if a portion of the Bombay House as tenants or that they had any enforceable right or power or asset, was not based on any material. IT was not substantiated at all. The plea of the petitioners stated in their communications dated 18.1.1984 and reiterated in the Writ Petition, was not dis-proved, in the above circumstances, the High Court, in our opinion, correctly reached the conclusion that the action of the respondents by addressing the letter dated 16.1.1984 seeking possession and control of unspecified portion of Bombay House, is without jurisdiction.13. We are of the opinion that the respondents have totally failed to prove that there was any enforceable right or interest of the Tata Mills Ltd. in any portion of the Bombay House, and in the circumstances, no part or portion of the Bombay House, formerly occupied gratuitously by the Tata Mills Limited, vested in the Central Government under Section 3 of the Act. The assumption by the respondents to the contrary is not justified in law.14. It is significant to note that no plea was taken in the counter affidavits filed by the respondents that the Write Petition is not maintainable or that further evidence is required to be taken to adjudicate the rival pleas put forward by the parties. We reject the plea so urged before us for the first time in this appeal. Having chosen to fight to case on the basis of affidavits, it is not open to the appellant to contend that factual aspects involved leading of evidence and the High Court should have declined jurisdiction under Article 226 of the Constitution. The plea that the occupation of the Tata Mills Limited of a portion of the Bombay House was as a tenant or lessee or licensee or that there existed any power or asset, is based on no material, but mere assertion. Respondents had every opportunity to verify the relevant records to ascertain under what arrangement the Tata Mills Limited was occupying the undivided and undemarcated portion of the Bombay house for its registered office. Normally, the records of the T ata Mills Ltd. should be with the Custodian. Even if the relevant records were not available, the respondents could have required of petitioner No. 1 or petitioner No. 5, to produce whatever records were available with them, to probe into the matter further. They failed to do so. Instead, they acted at their ipse dixit to take possession of the premises in Bombay House. This was totally unreasonable and unjustified.