Disposed

Echjay Forgings Pvt. Ltd. v. the Official Liquidator (Mansukh Industries Ltd. )

Bombay HC5 May 2014CA/136/2014

Case brief

AI extract

What is this about?

The court appointed a valuer to resolve a dispute regarding the alignment of an access road. After accepting the valuer's report which contradicted the applicants' maps, the court directed the construction of a temporary fence but held that all contentions regarding encroachments and boundary alignment are kept open.

What did the court decide?

Directed construction of crimped wire netting fence along the valuer's determined boundary line at applicants' cost; substantive claims regarding encroachments and boundary alignment kept open.

1.This is an application by one Echjay Forgings Pvt. Ltd. (“Echjay Forgings”). It is not a party to the Company Petition. The application is that the Official Liquidator appointed of Mansukh Industries Limited (the company in liquidation) should ascertain

what Echjay Forgings alleges is an encroachment by respondents Nos. 2 to 4; that these respondents be evicted from this “encroached area”; for an injunction restraining either the Official Liquidator and the other respondents from preventing Echjay Forgings from constructing a boundary wall along its access road; and for other consequential reliefs. There is an affidavit in support of the company application filed by one Nagesh Doshi.

2.Respondents Nos. 2 and 3 claimed to be tenants of the property in question or part thereof. The status of respondent No. 4 seems to be seriously disputed. The 4th respondent is not an agent of the Liquidator, and whether the respondent No. 4 is or is not in existence is at this stage unclear.

3.Echjay Forgings claims to be the owner of the CTS No. 1019 at Kanjur Marg. The property admeasures about 15732.9 sq. meters. Echjay Forgings’ property adjoins CTS No. 1020/3, which is said to be the property of Mansukh Industries, the company in liquidation.

4.The encroachment to which this application relates is an access road of 30 feet width to Echjay Forgings’ property CTS No. 1019. Ms. Dave, learned Advocate for Echjay Forgings, says that a part of this access road has been encroached by respondent Nos. 2 and 3. This is very seriously disputed by Mr. Toor, learned counsel for respondent Nos. 2 and 3. To the affidavit in support of the application are annexed several maps. These are said to be official maps prepared by City Survey Officer under the provisions of Maharashtra Land Revenue Code. Although two maps were annexed to the affidavit in support of the application, there are in fact three separate maps. All of these purport to show a dotted line traversing down the length of this 30-foot access road on CTS No. 1019. At several places, this dotted line deviates from the western edge or line

5.The access road runs north-south; its eastern boundary is fixed; the access road is 30 feet to the west of the eastern boundary. When Echjay Forgings attempted putting up a boundary wall on the western edge of this access road, the Official Liquidator’s representative prevented that work. A report was made inter alia seeking that the property be resurveyed by a Government agency. It was in those circumstances the present application was filed.

6.Rather than await a report of the Government Surveyor, which would have taken far too much time, I requested a surveyor on the panel of the Official Liquidator to inspect and survey the property boundaries. This was by my order dated 21st February 2014. The surveyors then appointed, M/s. Basavraj Masangi & Co prepared a report that was wholly unsatisfactory. In subsequent orders I noted this. In fact, those surveyors made a report saying that they could not comment on encroachments. Therefore, by an order dated 4th April 2014 I asked M/s. N. M. Shah & Co., long on the panel of the Official Liquidator, to accept the assignment. Mr. N. M. Shah of M/s. N. M. Shah & Co. personally undertook the task. He visited the site. Representatives of both parties met him there.

7.Mr. Shah’s report dated 15th April 2014 is on file. Both the applicants, as also respondents Nos. 2 and 3 have been given an opportunity to respond this report. I have heard Ms. Dave at some length on this report and on her application. Although Ms. Dave contends that Mr. Shah’s report is entirely incorrect and he did not sufficiently rely on the documents produced by her clients, and even that he has ‘created a distortion’, I an not prepared to accept these

assertions. I find no substance in any of them, and I most emphatically deprecate this growing tendency of parties to launch personal attacks on professionals and others when they submit reports that are found to be inconvenient to some party. It is one thing to say that Mr. Shah’s report suffers from some infirmity. It is quite another to accuse him of something bordering on misconduct. Indeed, Mr. Shah’s work seems to me in this case to be impartial, precise, meticulous, and well-reasoned.

8.What Mr. Shah’s report indicates is that taking into account the datum line, i.e., the fixed wall building line constructed by Mansukh Industries Limited on Plot No. 1020 before 1997, as also the other available municipal, factories department and official documents, it has been possible to plot the correct boundaries of the access corridor in question. To his report are annexed several drawings indicating the alignment of the eastern and western boundaries of this 30-foot access corridor. It is apparent that the plotting of these eastern and western boundaries of the access road plotted by Mr. Shah do not conform to the dotted lines allegedly showing an encroachment on the plans produced by Echjay Forgings; hence their discomfiture. Mr. Shah was personally present in Court on each occasion this matter was heard. He has explained his report succinctly and with clarity. He has pointed out that there is no disclosed basis for those dotted lines on the plans produced by Echjay Forgings. Indeed, other than saying that those dotted lines were plotted by a revenue officer on the basis of some boundary markers, there is no material either on affidavit or even sufficiently established in arguments to show the correctness of those dotted lines. Even Echjay Forgings’ private surveyor was not able to explain how, from those boundary markers, and without any reference to a building line or datum line, the so-called encroachment and dotted lines could be established. Whatever may be the presumption that might attach to

any drawings may by a Survey officer, once a Court-appointed valuer has considered that material, it is for the applicant to show how and on what material the so-called encroachments are shown. Merely because these plans have been prepared by the City Survey Officer does not mean that they are sacrosanct or that they are beyond dispute. They enjoy a certain evidentiary value; they are not inviolate such that their correctness can never be disputed. It is impossible in this proceedings to go into the question of correctness of these drawings. That will have to be established by evidence in appropriate proceedings.

9.This much is certain: Echjay Forgings’ access road is (a) of 30 feet width. Ms. Dave contends on instructions that “it might be more” but again is unable to show on what basis this assertion is made; (b) that width of 30 feet is to be measured from the fixed eastern boundary, about which again there is no dispute, towards the west. Once that is done, that access road running north-south with its 30-foot width in an east-west direction is clearly demarcated and delineated on the drawings annexed to Mr. Shah’s report.

10.If the applicants desire to put up a protective boundary along the western side of this access road, they are free to do so. The alignment of this access road can only be in the manner indicated by Mr. Shah on the drawings annexed to his report. That boundary will be of crimped wire netting or chain-link fencing, and will be constructed by the Official Liquidator at the applicants’ cost under the supervision of Mr. N. M. Shah. The costs of this work and Mr. Shah’s professional fees for this construction work shall be borne by the applicants. It is clarified that a pucca concrete or brick masonry wall is not being permitted at this stage.

11.Mr. Shah points out that during the course of constructing this fencing, there is likely to be an interruption at two places where, according to his report, there is an encroachment made by Echjay Forgings itself. In order to leave no room for controversy, the frontage of those two structures or so-called encroachments by Echjay Forgings on the western boundary of the access road will not be fenced.

13.All contentions of the applicants as also of the respondent Nos. 2 to 4 in that behalf, as also of the Official Liquidator, are expressly kept open. No order is being passed at this stage on the basis of Mr. Shah’s observations about the encroachments he says have been done by Echjay Forgings. All parties, including the Official Liquidator will be at liberty to adopt such proceedings as may be necessary in that behalf. All contentions, on behalf of Echjay Forgings that there is no such encroachment are expressly kept open.

14.As to the question of Mr. N. M. Shah’s fees, the entire exercise has been necessitated because of this application. The Official Liquidator will, in the first instance make payment of the balance amount of fees now due to Mr. Shah, i.e., Rs. 1,14,683/-. The applicant, Echjay Forgings, shall pay to the Official Liquidator this entire amount, including the advance already paid, i.e., Rs. 1,37,683/-. This amount shall be paid within a period of three weeks from today. The advance paid to Mr. Shah on behalf of Mansukh Industries, in the amount of Rs.23,000/- will be returned to the person who made that payment upon funds being received from the applicants, Echjay Forgings.

16.At this stage, learned counsel for the Rajesh Estates and Nirman Group states that the title of Echjay Forgings to CTS No. 1019 is in doubt. This is not a matter that can be examined in the present proceedings. This order will not affect any pending proceedings.

Echjay Forgings Pvt. Ltd. v. the Official Liquidator (Mansukh Industries Ltd. )

Case brief

What is this about?

What did the court decide?

Echjay Forgings Pvt. Ltd. v. the Official Liquidator (Mansukh Industries Ltd. )

Case brief

What is this about?

What did the court decide?

What the court decided

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