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Judgment
Falshaw, C.J.—This is a petition filed under Article 226 of the Constitution by Raghbir Singh.
The allegations contained in the petition, which was admitted on the 8th of August 1962 when an order staying the eviction of the Petitioner from the premises in dispute was obtained, are so one-sided, and the petition omits so many material facts, that it is only possible to relate the facts which have given rise to the dispute by reference to the replies of the contesting Respondents, the Official Liquidator of the Palai Central Bank(In liquidation) and Shrimati Krishna Devi, the owner of the premises.
The relevant facts are as follows. The winding up of the Palai Central Bank Ltd. was ordered by the Kerala High Court on the 5th of December 1960, M.A. Narayanan, Respondent No. 2, being appointed as the Official Liquidator. There was a branch of the Bank at Delhi to which a man named A.S. Raddyar was indebted. He was carrying on busineas under the name of United Trading Company in the premises in dispute, which are situated in Lothian Road, Kashmeri Gate, Delhi. The Bank became the owner of machinery installed in these permises and also became the tenant of the landlord n the place of the debtor. The machinery was sold by public auction under the orders of the Liquidator on the 20th of September, 1961. Raghbir Singh Petitioner was the auction purchaser at a price of Rs. 2,50,000/-. The sale was subject to the conditions contained in annexure A.1 to the petition. Condition No 6 reads-
The purchaser must remove all the material of his lot within 60 days from the date of auction failing which he shall be liable to pay ground rent at 1% per diem. However, the Official Liquidator or his representative may grant extension for the removal of the material on the expiry of the specified period without charging the ground rent.
In the letter, copy annexure A. 2, dated the 26th of September, 1961 the Official liquidator conveyed to Raghbir Singh the acceptance of his bid by the Kerala High Court and at the same time he was informed that he would be liable to pay the monthly rent of the premises and the-salaries of the Chaukidars, in case he wished to retain them, with effect from the 1st of October 1961 until the goods were removed.
The monthly rent of the premises was apparently Rs. 700/-and there appears to be no doubt that in accordance with the letter A. 2 the Petitioner paid, and the Official Liquidator received, Rs. 700/-for each of the months of October, November, and December, 1961. When, however, the Petitioner sent a draft for Rs. 700/- towards the end of December, for January, 1962 he was sent the letter, copy A. 6 dated the 16th of January, 1962 stating that the Official Liquidator was unwilling to extend the period for the removal of the machinery up to the end of January, and he was given until 4 p. m. on the 24th of January, to remove the machinery, and failing delivery of possession to the Official Liquidator''s representative at Delhi, Mr. D.C. Wadhwa. he was informed that rent would be charged at the rate of Rs. 2,500/-per day i. e. 1% of the sale price as stipulated in the conditions of sale.
According to the affidavit of Mr. R.C. Raizada, the present representative of the Official Liquidator, during the previous period the Petitioner had been allowed to keep the keys of the premises in dispute with him during the day, and had been returning them each evening to Mr. D.C. Wadhwa, but above that period he had stopped returning the keys and kept them entirely in his possession, and about that time he also began claiming to be a regular tenant of the premises in dispute. Eventually on an application placed by the Official Liquidator before the Liquidation Judge at Kerala, P.T. Raman Nayar, J. passed the order on the 4th of April, 1962:-
Sanctioned, Liquidator may apply to the District Magistrate and police at Delhi for help for throwing out this trespasser.
In these circumstances a request was made on behalf of the Official Liquidator to the District Magistrate at Delhi for police assistance, but this was deferred until alter the 17th of July 1962 when Mr. K.C. Raizada, who by this time had taken the place of Mr. D.C. Wadhwa as the Official Liquidator''s representative at Delhi, went to the premises to present a formal letter of demand for surrender of possession addressed by the Official Liquidator to Raghbir Singh Petitioner. Mr. Raizada found a man called Shori Lal in possession of the premises on behalf of Raghbir Singh, and Shori Lal refused to surrender possession or even to accept the formal letter of demand. On the same day, the 17th of July, 1962, Mr. Raizada wrote the letter, copy R. 3, to Mr. M.W.K. Yusufzai, Additional District Magistrate, relating what had happened, and enclosing copies of the formal letter of demand and of the order of the Kerala High Court, and this was forwarded by the Additional District Magistrate to the Superintendent of Police (North) for furnishing the police assistance necessary to avoid any breach of the peace.
It is stated in the affidavit of Mr R.C. Raizada that on the 6th of August 1962 he went to the premises in dispute and rented by the Petitioner himself, He alleges that the representative of the Petitioner was present throughout and that the police who were in attendance took no part in the removal of the machinery. At 8-30 p. m. three locks were placed on the premises in dispute, one by the Petitioner''s representative and two by Mr. Raizada. When the work ceased on the night of the 6th of August the Petitioners'' representative had agreed in writing that the work would be continued on the following morning and this position was also accepted on the telephone by the Petitioner in a conversation with Mr. Raizada. However, this agreement was not kept and the writ petition was drafted on the 7th of August and, as I have said, admitted on the following day.
Although the petition is primarily based on the allegations that the Petitioner had become the tenant of the Official Liquidator, and that he could not be dispossessed under the orders of the District Magistrate, who was impleaded as Respondent No. 1 in the petition, under the provisions of Section 45 (S) of the Banking Companies Act of 1949, and this grounds for issuing a writ mainly consist of an attack ou the constitutionality of Section 45(S), this was not the basis of the main argument which has been addressed to me. In fact it would appear that although possibly, the provisions of Section 45(S) were referred to when a reference was first made to the District Magistrate, in actual effect there was never any question of the Petitioner being dispossessed u/s 45(S) by the order of the District Magistrate. The object of Section 45(S) is to enable District Magistrates to assist Liquidators in taking charge of property of a Banking Company in liquidation and its very terms appear to indicate that it is only intended to be applied in the case of moveable property. Sub-section (1) reads:-
For the purpose of enabling the official liquidator, or the special officer appointed under Sub-section (3) of Section 37 to take into his ms-tody or under his control, all property, effects and actionable claims to which a banking company, which has been ordered to be wound up, is or appears to be entitled, the official liquidator or the special officer, as the case may be, may request in writing the Chief Presidency Magistrate or the District Magistrate within whose jurisdiction any property, books of account or other documents of such banking company may be situate or be found, to take possession thereof, and the Chief Presidency Magistrate or the District Magistrate, as the case may be shall, on such request being made to him, take possession of such property, books of account or other documents and forward them to the official liquidator or the special officer.
These last words can clearly have no reference to immovable property, and it is quite obvious that in the present case police assistance was only asked for in order to enable the representative of the Official Liquidator to recover possession of the premises in dispute from the Petitioner without a breach of the peace for the purpose of handing over the premises to the owner as had been ordered by the High Court at Kerala. The question of anything being done u/s 45(S) under the orders of the District Magistrate therefore does not arise.
It is quite impossible on the facts related above to hold that any tenancy was created in favour of the Petitioner merely by the acceptance of so-called rent from him for his occupation in the premises pending the removal of the machinery, and the only argument advanced on behalf of the Petitioner is that since he had evidently not come into occupation of the premises as a trespasser, he could not be summarily and forcibly ejected and he could only be ejected in due process of law which, it was contended, could not include being thrown out on the strength of a mere direction obtained ex parte by the Official Liquidator from the Liquidation Judge of the Kerala High Court.
It was obvious that no ready answer to this contention was forthcoming from the Respondents, but a number of reasons have been advanced in support of the contention that this is not a case in which the Court ought to interfere under Article 228 of the Constitution.
The first of these reasons lies in the misstatement and suppression of material facts in the petition itself, which has frequently been hold to be a ground for rejecting a writ petition. It is contended that one such omission by itself is a sufficient ground for rejecting the petition. This is that on the 8th of May 1962 the Petitioner had actually instituted a regular civil suit in the Court at Delhi for a declaration that he is the tenant in the premises in dispute and for a permanent injunction restraining the Official Liquidator and other Defendants from interfering with his possession. This suit was instituted three months before the present recovery of possession from him. With this letter he apparently enclosed a copy of certain objections sent by him to the District Magistrate at Delhi and he writes-
I have sent a copy of the above objections to the Official Liquidator at Ernakulam for placing the same before the Hon''ble High Court at Kerala. The High Court at Kerala is closed for summer vacation and will open on 16th of May 1962 and I am going to make an application to the Hon''ble High Court also in connection with the above matter when it reopens after the vacation.
It is pointed out that he did not in fact ever file any application even after the High Court had opened, but instead he took no further action until he filed the present petition after some of the machinery had been removed from the premises in dispute on the 6th of August 1962.
It may be mentioned that after be had obtained the order of this Court staying his eviction he allowed the civil suit instituted by him at Delhi to be dismissed in default on the 5th of November 1962. There seems to be no doubt that this was due to the fact that although the jurisdiction of this Court under Article 226 of the Constitution in these matters might have been debatable, there could be no argument regarding the fact that the suit was not maintainable in the Court at Delhi in view of the provisions of Section 45(B) of the Banking Companies Act.
I am definitely of the opinion that the only proper Court for the Petitioner to approach on the matters in dispute in the present case was the High Court at Kerala in view of the fact that the Official Liquidator was seeking to recover possession of the premises in dispute from the Petitioner as an officer of that High Court and acting directly under the orders of the learned Liquidation Judge of the Court even in the matter of obtaining police assistance. I am also of the opinion that on the facts as they have turned out to be, and not as alleged in the petition, this Court has not even any jurisdiction to interfere since, there is no question of any dispossession being done under the orders of the District Magistrate of Delhi. It seems to me that the same principle will apply in this case as applies when petitions are filed in this Court relating to property and rights concerning matters arising in other States, It is well settled law that if the final order on these matters is passed by an officer at Delhi this is the only High Court which has the jurisdiction under Article 226, and I understand that an amendment of the Constitution is under consideration so as to enable the High Courts of other States to deal with matters which arise in those States although the final orders may be passed at Delhi. In the present case although the property is situated at Delhi the orders which are Challenged and are being executed are the orders of the learned Liquidation Judge of the High Court at Kerala, and they being carried out here by the Official Liquidator or his representative. I am therefore of the opinion that this Court has no jurisdiction to entertain the petition, and that even if it had the jurisdiction, it would be highly improper for it to do so. In these circumstances I dismiss the petition with costs. Counsel''s fee Rs. 500/- for each of the contesting Respondents.