Himachal Pradesh High Court
Tohnu Ram (Deceased) Through Lrs And Anr vs Ultra Tech Cement And Anr on 2 September, 2025
2025:HHC:29847
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
.
CMPMO No. 325 of 2025 a/w Civil
Revision Nos. 213, 214 of 2022, 1 to 5,
to 154 of 2024, CMPMO Nos. 172 to
175, 406, 738, 750, 751, 754, 756, 759
and 760 of 2024, CR Nos. 175 to 182 of
2024 and CMPMO No. 2 of 2025
Reserved on : 24th June, 2025
Date of Decision: 02nd September, 2025
1. CMPMO No.325 of 2025
Tohnu Ram (Deceased) through LRs and Anr.
.....Petitioners
Versus
Ultra Tech Cement and Anr. .....Respondents
2. Civil Revision No.213 of 2022
Dharam Pal .....Petitioner
Versus
Ultra Tech Cement and Anr. .....Respondents
3. Civil Revision No.214 of 2022
Bihari Lal .....Petitioner
Versus
Ultra Tech Cement and Anr. .....Respondents
Jindu Ram .....Petitioner
Versus
Ultra Tech Cement and Anr. .....Respondents
Ram Pyari .....Petitioner
2025:HHC:29847
Versus
Ultra Tech Cement and Anr. .....Respondents
.
Gian Chand .....Petitioner
Versus
Ultra Tech Cement and Anr. .....Respondents
Panchu Devi .....Petitioner
Versus
Ultra Tech Cement and Anr.
r .....Respondents
Nanak Chand (deceased) through LRs and Ors.
.....Petitioners
Versus
Ultra Tech Cement and Anr. .....Respondents
9. Civil Revision No.49 of 2023
Sunder Ram .....Petitioner
Versus
Ultra Tech Cement and Anr. .....Respondents
10. Civil Revision No.50 of 2023
Nathu Ram .....Petitioner
Versus
Ultra Tech Cement and Anr. .....Respondents
11. Civil Revision No.51 of 2023
Dharam Pal .....Petitioner
Versus
2025:HHC:29847
Ultra Tech Cement and Anr. .....Respondents
12. Civil Revision No.158 of 2023
Brikmu Devi and Ors. .....Petitioners
.
Versus
Ultra Tech Cement and Anr. .....Respondents
M/s Jai Prakash Associates Ltd. .....Petitioner
Versus
Bihari Lal and Anr. .....Respondents
M/s Jai Prakash Associates Ltd. .....Petitioner
Versus
Dharam Pal and Anr. .....Respondents
M/s Jai Prakash Associates Ltd. .....Petitioner
Versus
Panchoo Devi and Anr. .....Respondents
M/s Jai Prakash Associates Ltd. .....Petitioner
Versus
Gian Chand and Anr. .....Respondents
M/s Jai Prakash Associates Ltd. .....Petitioner
Versus
Ram Pyari and Anr. .....Respondents
2025:HHC:29847
M/s Jai Prakash Associates Ltd. .....Petitioner
Versus
.
Jindu Ram and Anr. .....Respondents
M/s Jai Prakash Associates Ltd. .....Petitioner
Versus
Nanak Chand (deceased) through LRs and Anr.
.....Respondents
M/s Jai Prakash Associates Ltd.
r .....Petitioner
Versus
Sunder Ram and Anr. .....Respondents
M/s Jai Prakash Associates Ltd. .....Petitioner
Versus
Tohnu Ram (Decease) through LRs and Anr.
.....Respondents
M/s Jai Prakash Associates Ltd. .....Petitioner
Versus
Nathu Ram and Anr. .....Respondents
M/s Jai Prakash Associates Ltd. .....Petitioner
Versus
Dharam Pal and Anr. .....Respondents
2025:HHC:29847
M/s Jai Prakash Associates Ltd. .....Petitioner
Versus
.
Brikamu Devi and Ors. .....Respondents
M/s Jai Prakash Associates Ltd. .....Petitioner
Versus
Mast Ram and Anr. .....Respondents
M/s Jai Prakash Associates Ltd. .....Petitioner
Versus
Jai Dev and Ors. .....Respondents
M/s Jai Prakash Associates Ltd. .....Petitioner
Versus
Dila Ram and Anr. .....Respondents
M/s Jai Prakash Associates Ltd. .....Petitioner
Versus
Pyare Lal and Anr. .....Respondents
M/s Jai Prakash Associates Ltd. .....Petitioner
Versus
Sevti Devi (deceased) through LRs and Ors.
.....Respondents
M/s Jai Prakash Associates Ltd. .....Petitioner
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Versus
Mahanti Devi and Anr. .....Respondents
.
M/s Jai Prakash Associates Ltd. .....Petitioner
Versus
Kannu Ram (deceased) through LRs and Ors.
.....Respondents
32. Civil Revision No.175 of 2024
Kannu Ram (Deceased) through LRs and Ors.
.....Petitioners
Versus
Ultra Tech Cement and Anr.
.....Respondents
33. Civil Revision No.176 of 2024
Pyare Lal .....Petitioner
Versus
Ultra Tech Cement and Anr. .....Respondents
34. Civil Revision No.177 of 2024
Dila Ram .....Petitioner
Versus
Ultra Tech Cement and Anr.
.....Respondents
35. Civil Revision No.178 of 2024
Mahanti Devi (deceased) through LRs .....Petitioners
Versus
Ultra Tech Cement and Anr. .....Respondents
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36. Civil Revision No.179 of 2024
Sevti Devi (Deceased) through LRs and Ors.
.....Petitioners
.
Versus
Ultra Tech Cement and Anr. .....Respondents
37. Civil Revision No.180 of 2024
Mast Ram .....Petitioner
Versus
Ultra Tech Cement and Anr. .....Respondents
38. Civil Revision No.181 of 2024
Champa Devi .....Petitioner
Versus
Ultra Tech Cement and Anr. .....Respondents
39. Civil Revision No.182 of 2024
Jai Dev and Ors. .....Petitioners
Versus
Ultra Tech Cement and Anr. .....Respondents
M/s Jai Prakash Associates Ltd. .....Petitioner
Versus
Mahanti Devi and Anr. .....Respondents
Coram
The Hon'ble Mr. Justice Bipin Chander Negi, Judge.
Whether approved for reporting?1
For the Petitioners: Mr. Virender Thakur, Advocate for the
petitioner(s) in CMPMO No. 325 of
2025, Civil Revision Nos. 213, 214 of
2022, Civil Revision Nos. 1 to 5, 49 to
of 2024.
Mr. G.D. Verma, Senior Advocate with
Mr. Sumit Sharma, Advocate for the
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes
2025:HHC:29847
petitioner(s) in CMPMO Nos. 148 to
154, 172 to 175, 406, 738, 750 to
760 of 2024 & CMPMO No. 2 of 2025.
and for
.
For the Respondents: Mr. Virender Thakur, Advocate for the
respective respondent(s) in CMPMO
Nos. 148 to 154, 172 to 175, 406,
738, 750, 751, 754, 756, 760 of
2024.
Mr. G.D. Verma, Senior Advocate
with Mr. Sumit Sharma, Advocate for
the respective respondent(s) in
CMPMO No. 325 of 2025, Civil
Revision Nos. 213, 214 of 2022, Civil
Revision Nos. 1 to 5, 49 to 51, 158 of
2023, CR Nos. 175 to 182 of 2024.
Mr. Navin Pahwa, Sr. Advocate and
Mr. Sunil Mohan Goel, Sr. Advocate
with Mr. Anil Kumar God, Advocate,
for respondent-Ultra Tech Cement.
Mr. Mr. Anup Rattan, Advocate
General, with Mr. Raj Kumar Negi,
Additional Advocate General, for the
respondent-State.
Bipin Chander Negi, Judge
Since common questions arise for consideration in the
afore-stated cases therefore with the consent of the
parties/counsels, all the cases are being taken up together for
consideration and disposal. However, for deciding the common
issues, which have arisen for consideration only facts of CMPMO
No.325 of 2025 i.e Tohnu Ram (Deceased) through LRs and Anr
(Lead case) are being taken into account, as arguments of counsels
revolved around the same.
Tohnu Ram's case (supra) has been filed seeking the
following relief:-
"1. That order dated 14.02.2022, passed by the
learned Executing Court, i.e. learned Additional
District Judge-II, Solan, HP in Execution Petition
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No.75-ADJ-II/2019, titled as "Tohnu Ram
(deceased) through LRs Vs. UltraTech Cement Ltd.
and another", may kindly be modified to the extent
that the liability of payment of enhanced amount of
.
compensation of the petitioners along with other land
owners may very kindly be ordered to be fastened
upon respondent No.1-UltraTech Cement Ltd.,
instead of respondent No.2, Jai Prakash Associates as
ordered by the learned Executing Court, in the
interest of law and justice."
2. Heard counsel for the parties and perused the pleadings
and documents appended with the present petition.
3. The award, in the case at hand, was passed by the Land
Acquisition Collector on 10.01.2008 (Award No.1 of 2008). By
virtue of the said Award, the Land Acquisition Collector had
awarded Rs.2.31 lacs per bigha for cultivated land and
Rs.44,406/- per bigha for uncultivated land to the petitioners in
and around Village Samtyari, where J.P Himachal Cement had
taken land for mining purpose. On an appeal against the Award,
passed by the Land Acquisition Collector, the reference Court
vide a common Award dated 29.06.2017, had enhanced the
compensation amount and had awarded Rs.5 lacs per bigha,
irrespective of classification of land.
4. Since the passing of the Award by the Reference Court
on 29.06.2017, till November 2019 on account of enhanced
compensation, no amount had been deposited by respondent
No.2-Jai Prakash Associates, therefore, the present petitioners
were constrained to file an execution petition, the same was
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instituted on 13.12.2019. Therein, it was submitted that
respondent No.2 through the State of Himachal Pradesh, had
got lands acquired for setting up of a cement plant and for
.
conducting mining operations. For the same, lands of the
petitioners had been acquired, wherein compensation had been
awarded by the aforementioned awards, passed by the Collector
and the Reference Court. It is further submitted in the
Execution Petition that the cement plant had been run by
respondent No.2 till June 2017. Thereafter, the same stood
transferred to respondent No.1-UltraTech. Respondent No.2-JP
Associates, was stated to have been embroiled in insolvency
proceedings and hence, was not in a position to deposit the
enhanced compensation for the lands acquired, Government of
Himachal Pradesh had allowed the transfer from respondent
No.2-Jai Prakash Associates to respondent No.1-UltraTech
Cement Ltd., subject to liability being taken over by Respondent
No.1-M/s. UltraTech. It was further contended by the learned
counsel for the petitioners that for certain acquisitions made,
Ultra-Tech had paid liability and hence UltraTech was
responsible.
5. In response to the execution petition filed, learned
counsel for respondent No.1, had categorically stated that there
is no award of acquisition, which had been passed against it.
The Reference Award dated 29.06.2017, has been challenged
by respondent No.2, by filing an appropriate appeal before the
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Hon'ble High Court, under Section 54 of the Land Acquisition
Act, which is pending adjudication. Attention was drawn to
orders dated 22.08.2019, passed by a Coordinate Bench of this
.
Court in CMP No.3476 of 2019 in RFA No.120 of 2018, titled Jai
Prakash Industries Limited Vs. Tohnu Ram and others and order
dated 17.10.2019, passed in Review Petition No.111/2019,
titled as M/s. UltraTech Cement Limited Vs. Tohnu Ram
(deceased) through LRs and others, whereby respondent No.1
r to
had been impleaded as a party and the same had been assailed
before the Apex Court. The Apex Court, vide its order dated
16.12.2019 (page 143 of the paper book) had categorically
observed that impleadment of respondent No.1, only decided
the question of respondent No.1, being a proper party, no more
and no less. The same cannot be construed as permitting a 3 rd
party to pursue a claim against respondent No.1. Besides the
aforesaid, vide order dated 16.12.2019, the Hon'ble Apex Court
had made it absolutely clear that no claim of recovery against
respondent No.1, can be made in disregard of the Scheme of
Arrangement inter-se respondents No.1 and 2, propounded by
the National Company Law Tribunal (hereinafter referred NCLT)
and the Executing Court is duty bound to pass orders strictly in
consonance with the Scheme of Arrangement, approved by the
NCLT, Mumbai and Ahmedabad Bench, respectively. In the
reply, it was further contended that in terms of clause 7.1 of the
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Scheme of Arrangement, liability to pay lay squarely upon
respondent No.2-Jai Prakash.
6. Respondent No.2, in their reply submitted that an
.
appeal filed by the said respondent against the award dated
29.06.2017 of the Reference Court, is pending consideration
before a Coordinate Bench of this Court. It was further pleaded
in the reply that on account of financial condition, the said
respondent is not in a position to deposit the amount. Action for
recovery of the enhanced amount is subject to the Scheme of
Arrangement and approval granted by the State of Himachal
Pradesh for transfer of assets to respondent No.1.
7. The Executing Court, post considering the aforesaid
submissions, came to the conclusion that in terms of the
Scheme of Arrangement, liability to pay compensation, in the
case at hand, squarely rested on the shoulders of respondent
No.2. Insofar as, payments alleged to have been made qua
certain acquisitions by respondent No.1, the Executing Court
was of the view that the same had no relevance to the present
proceedings. On account of the aforesaid conclusions, the
Executing Court fastened liability squarely upon respondent
No.2.
8. The first and foremost contention raised before this
Court by the petitioner is that the liability for the enhanced
compensation, in the case at hand, needs to be fastened solely
on respondent No.1-UltraTech. In order to buttress the
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aforesaid contention, attention of this Court has been drawn to
letter dated 21.06.2017, placed at page 120 of the paper book.
The same is a letter written by the Director Industries, Himachal
.
Pradesh, to the two respondents herein. Attention is specifically
invited to para 5 of the same, which has been reproduced
hereinbelow for ready reference:-
"5. To transfer of all liabilities (declared or undeclared),
property, rights and powers pertaining to cement and clinker
manufacturing plants of M/s. Jai Prakash Associates Ltd.
situated in Himachal Pradesh in favour of M/s. UltraTech
Cement Ltd., subject to condition that all liabilities towards
Govt.
Department/Board corporations/Societies shall be
cleared immediately after signing Tripartite Agreement and
further that all FCA and EC clearances shall be
transferred/obtained fresh as may be required as per
applicable Rules by the M/s. UltraTech Cement Ltd."
9. Other than the aforesaid, to support the contention of
the petitioner, attention has been invited to the Tripartite
Agreement dated 29.06.2017 entered into between the State of
Himachal Pradesh, respondent No.1-UltraTech and respondent
No.2-JP Associates. Respondent No.1 in the Tripartite
Agreement has been referred to as the 3rd Party. The 1st Party
therein is the State and the 2nd Party is respondent No.2-JP
Associates. On the basis of the Tripartite Agreement, it is
contended that the State of Himachal Pradesh had consented to
transfer of assets to respondent No.1, in the case at hand,
subject to the said respondent No.1, taking over all liabilities of
respondent No.2. Besides the aforesaid, attention is drawn to
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Clause 7.2 of the Scheme of Arrangement, which deals with
contingent liability. Attention is invited to the said clause to
show that liability can be paid by respondent No.1, in the first
.
instance and then the same can then be recovered from
respondent No.2.
10. The next contention raised by the petitioner is qua the
supplementary land acquisition Award passed in the case at
hand at the behest of the present respondent No.1-M/s.
UltraTech Cement Ltd. and the payment with respect to the
same. In this respect, attention is invited to Annexure P-6 i.e.
Supplementary Award dated 02.05.2022, regarding left out
houses/structures and trees under the main Award No.1 of
2008, passed on 10.01.2008. From a perusal of the main
award, it is evident that initially while passing the Award, an
award qua structures/houses/trees etc. could not be passed in
the Award No.1 of 2008, dated 10.01.2008, as
assessment/evaluation of the aforesaid, could not be done on
account of resistance put-forth by the landowners. The
Supplementary Award is dated 02.05.2022. Qua the same, it is
contended that the said supplementary award was passed at
the instance of respondent No.1, who had filed a writ petition
bearing No.3073 of 2021, titled M/s. UltraTech Cement Works
Vs. State of HP and Others being aggrieved of executive
inaction on the part of the State in not passing a Supplementary
Award qua houses, structures and tress not evaluated at the
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time of passing the main Award No.1 of 2008, dated
10.01.2008. In the same, the following relief was claimed;
"(a) That this Hon'ble Court may be pleased
.
to issue writ of mandamus directing
respondents No.1 to 3 to immediately to take
all effective steps to get the houses, structures
and tress evaluated which stand acquired by
the petitioner company in terms of Award
No.1/2008 dated 10.1.2008 which otherwise
were not allowed to be evaluated, from the
appropriate authorities/departments so that
the amount of compensation assessed is
deposited and the vacant and peaceful physical
possession of the area could be handed over to
the petitioner company in terms of the
provisions of the Land Acquisition Act, 1894 by
the respondent State."
11. The aforesaid petition, was disposed of vide judgment
dated 24.11.2021, whereby a Division Bench of this Court had
directed the Land Acquisition Collector to immediately take
consequential action. In pursuance whereof, supplementary
award dated 02.05.2022, had been passed. In the
Supplementary Award, under the head mode of payment,
respondent No.1 is stated to have deposited the amount of
compensation. In this regard attention is invited to para 12 of
the counter-affidavit filed by respondent No.2 (page 1484 of the
paper book), wherein respondent No.2 has pointed out that
approximately a sum of Rs.4.75 crores was deposited by
respondent No.1, in pursuance to the Supplementary Award
passed on 02.05.2022. Attention is also invited to the list of
properties i.e. Schedule 1A appended along with Scheme of
Arrangement, the contention raised in this regard is that the
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property qua which enhanced compensation had been awarded,
does not form a part of the same.
12. Last but not the least, attention is invited to the
.
contents of CMP No.5816 of 2025 (page 1666 of the paper
book), whereby it is pointed that post June 2017, payments on
account of compensation in pursuance to the Award, in the case
at hand, have been made by respondent No.1 to certain land-
owners, detailed therein. Payment details are mentioned at
page 1681 and 1685 of the paper book.
13. The present petition has been filed under Article 227 of
the Constitution of India. Hence the parameters for interference
by this court are circumscribed by the said provision. Article 227
of the Constitution reads as under:
"227. Power of superintendence over all courts
by the High Court.
(1)Every High Court shall have superintendence over
all courts and tribunals throughout the territories
interrelation to which it exercises jurisdiction.
(2)Without prejudice to the generality of the
foregoing provisions, the High Court may--
(a) call for returns from such courts;
(b) make and issue general rules and prescribe
forms for regulating the practice and
proceedings of such courts; and
(c) prescribe forms in which books, entries and
accounts shall be kept by the officers of any
such courts.
(3) The High Court may also settle tables of fees to
be allowed to the sheriff and all clerks and officers of
such courts and to attorneys, advocates and pleaders
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practicing therein: Provided that any rules made,
forms prescribed or tables settled under clause (2) or
clause (3) shall not be inconsistent with the provision
or any law for the time being in force, and shall
.
require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer
on a High Court powers of superintendence over any
court or tribunal constituted by or under any law
relating to the Armed Forces."
14. The scope of jurisdiction of High Court under Article 227
of the Constitution has been expounded by the Hon'ble
Supreme Court as under:
(i) In Sadhana Lodh vs. National Insurance Co.
Ltd. & another, (2003)3 SCC 524, it has been held
as under:-
"7. The supervisory jurisdiction conferred on the
High Courts under Article 227 of the Constitution is
confined only to see whether an inferior court or
Tribunal has proceeded within its parameters and
not to correct an error apparent on the face of the
record, much less of an error of law. In exercising
the supervisory power under Article 227 of the
Constitution, the High Court does not act as an
Appellate Court or the Tribunal. It is also not
permissible to a High Court on a petition filed under
Article 227 of the Constitution to review or re-weigh
the evidence upon which the inferior court or
Tribunal purports to have passed the order or to
correct errors of law in the decision."
(iii) In Garment Craft vs. Prakash Chand Goel,
(2022)4 SCC 181, it has been held as under:-
"15. Having heard the counsel for the parties, we
are clearly of the view that the impugned order is
contrary to law and cannot be sustained for several
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reasons, but primarily for deviation from the limited
jurisdiction exercised by the High Court under
Article 227 of the Constitution of India. The High
Court exercising supervisory jurisdiction does not
.
act as a court of first appeal to reappreciate,
reweigh the evidence or facts upon which the
determination under challenge is based. Supervisory
jurisdiction is not to correct every error of fact or
even a legal flaw when the final finding is justified or
can be supported. The High Court is not to
substitute conclusion, for its own that of decision the
on facts inferior court and or tribunal. The
jurisdiction exercised is in the nature of correctional
jurisdiction to set right grave dereliction of duty or
flagrant abuse, Celina Coelho Pereira (Ms) and
Others v. Ulhas Mahabaleshwar Kholkar and Others,
(2010) 1 SCC violation of fundamental principles of
law or justice. The power under Article 227 is
exercised sparingly in appropriate cases, like when
there is no evidence at all to justify, or the finding is
so perverse that no reasonable person can possibly
come to such a conclusion that the court or tribunal
has come to. It is axiomatic that such discretionary
relief must be exercised to ensure there is no
miscarriage of justice."
15. Thus, from the above stated exposition of law, it is clear
that this Court has a restricted and limited jurisdiction to
interfere under the correctional jurisdiction vested in it in terms
of Article 227 of the Constitution of India, except to set right a
grave dereliction of duty or flagrant abuse or violation of
fundamental principle of law or justice.
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16. Respondent No.2-JP Associates, is stated to be
embroiled in insolvency proceedings. The said proceedings
were initiated at the behest of operational creditors of
.
Respondent No.2-JP Associates. The same is evident from
order dated 03.06.2024 ,passed by the NCLT Allahabad Bench,
on an application filed under Section 7 of the Insolvency and
Bankruptcy Code 2016 (hereinafter referred as IBC) seeking
initiation of the corporate insolvency resolution process against
respondent No.2-Jai Prakash Associates, whereby the same
was allowed, as a sequel whereto the corporate insolvency
resolution process was initiated against respondent No.2 and a
moratorium in terms of Section 14 of the IBC was imposed.
17. Section 14 of the Insolvency and Bankruptcy Code,
2016, which deals with the issue of Moratorium is being
reproduced herein below for a ready reference.
"14. Moratorium.-- (1) Subject to provisions of sub-
sections (2) and (3), on the insolvency
commencement date, the Adjudicating Authority shall
by order declare moratorium for prohibiting all of the
following, namely--
(a) the institution of suits or continuation of pending
suits or proceedings against the corporate debtor
including execution of any judgment, decree or order
in any court of law, tribunal, arbitration panel or other
authority;
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(b) transferring, encumbering, alienating or disposing
of by the corporate debtor any of its assets or any
legal right or beneficial interest therein;
.
(c) any action to foreclose, recover or enforce any
security interest created by the corporate debtor in
respect of its property including any action under the
Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002 (54 of
2002);
(d) the recovery of any property by an owner or lessor
where such property is occupied by or in the
possession of the corporate debtor.
[Explanation.-- For the purposes of this sub-section, it
is hereby clarified that notwithstanding anything
contained in any other law for the time being in force,
a license, permit, registration, quota, concession,
clearances or a similar grant or right given by the
Central Government, State Government, local
authority, sectoral regulator or any other authority
constituted under any other law for the time being in
force, shall not be suspended or terminated on the
grounds of insolvency, subject to the condition that
there is no default in payment of current dues arising
for the use or continuation of the license, permit,
registration, quota, concession, clearances or a similar
grant or right during the moratorium period;]
(2) The supply of essential goods or services to the
corporate debtor as may be specified shall not be
terminated or suspended or interrupted during
moratorium period.
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3[(2-A) Where the interim resolution professional or
resolution professional, as the case may be, considers
the supply of goods or services critical to protect and
preserve the value of the corporate debtor and
.
manage the operations of such corporate debtor as a
going concern, then the supply of such goods or
services shall not be terminated, suspended or
interrupted during the period of moratorium, except
where such corporate debtor has not paid dues arising
from such supply during the moratorium period or in
such circumstances as may be specified.]
to--
r to
1[(3) The provisions of sub-section (1) shall not apply
4[(a) such transactions, agreements or other
arrangements as may be notified by the Central
Government in consultation with any financial sector
regulator or any other authority;]
(b) a surety in a contract of guarantee to a corporate
debtor.]
(4) The order of moratorium shall have effect from the
date of such order till the completion of the corporate
insolvency resolution process:
Provided that where at any time during the corporate
insolvency resolution process period, if the
Adjudicating Authority approves the resolution plan
under sub-section (1) of Section 31 or passes an order
for liquidation of corporate debtor under Section 33,
the moratorium shall cease to have effect from the
date of such approval or liquidation order, as the case
may be.
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18. Section 12 of the the IBC provides for the period within
which the corporate insolvency resolution process is to be
completed. Section 23 thereof provides that the resolution
.
professional shall continue to manage the operations of the
corporate debtor after the expiry of the corporate insolvency
resolution process period. This court has been informed that
the corporate insolvency resolution process qua Respondent
No.2-JP Associates, is still pending.
19.
The corporate insolvency resolution process initiated at
the behest of operational creditors of Respondent No.2-JP
Associates, passing of the moratorium order therein resulted in
a legal embargo upon the petitioners from proceeding against
the Respondent No.2-JP Associates, therefore, the present
insistence on their part for shifting the liability in the case at
hand on respondent No.1-M/s Ultra Tech.
20. Section 4 Notification under the Land Acquisition Act, in
the case at hand, had been issued on 12.08.2005. The
execution proceedings wherefrom the present petition arises
pertains to an Award bearing No.1/2008, was passed by the
Land Acquisition Collector on 10.01.2008. The Reference
Award therefrom is dated 29.06.2017. Against the same, an
appeal under Section 54 is pending consideration before a
Coordinate Bench of this Court. In the aforesaid proceedings
i.e. before the Land Acquisition Collector, Reference Court, only
JAL was a party. Liability to pay was fastened on JAL, as it was
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the beneficiary of the acquisition. In the case at hand
acquisition was complete on payment of compensation and
taking of possession of lands in the case at hand after passing
.
of Award bearing No.1/2008 by the land Acquisition Collector
on 10.01.2008 (Reference in this respect can be made to 2024
(10) SCC, Kolkata Municipal Corporation and Anr. Vs. Bimal
Kumar Shah and Ors., specifically para 33.7.1 thereof).
21. The first and foremost contention raised on behalf of the
petitioner is that the State of Himachal Pradesh had consented
to the transfer of the assets of Jaiprakash Associates Ltd to M/s
Ultra Tech subject to M/s Ultra Tech taking over all the liabilities
of Jaiprakash Associates Ltd.
22. In the case at hand a scheme of arrangement was
entered into between M/s Ultra Tech Cement Limited, JAL and
Jaiprakash Cement Corporation Limited (A unit of JAL Operating
the Cement Project) under the relevant provisions of the
Companies Act, 1956. The same was approved by the National
Company Law Tribunal, Mumbai Bench, on 15.02.2017 and the
National Company Law Tribunal Allahabad Bench, on
02.03.2017. In terms of the scheme, the date on which the
scheme was to become effective was 29.06.2017.
23. Besides the aforesaid, in the case at hand a tripartite
agreement was entered into between the State of Himachal
Pradesh, Jaiprakash Associates Ltd and M/s Ultra Tech Cement
Limited, on 29.06.2017. From a perusal of the same, it is
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evident that the tripartite agreement was to be read along with
the scheme of arrangement dated 02.03.2017 and 15.02.2017,
as approved by the National Company Law Tribunal, Allahabad
.
Bench and Mumbai Bench, respectively. In terms of the
tripartite agreement, transfer of ownership, transfer of liability
to M/s Ultra Tech Cement Limited by Jaiprakash Associates Ltd
was to be strictly done, as per the Scheme of Arrangement.
24. Other than the afore-stated, in terms of the tripartite
agreement, previous agreements (MoUs) entered into between
the State of Himachal Pradesh and the Jaiprakash Associates
Ltd dated 09.07.2004 and 18.08.2010 were to be read in
consonance with the provisions of tripartite agreement. All
terms and conditions of the aforesaid MoUs were to remain
unchanged, unless affected by the provisions of the tripartite
agreement.
25. In view of the same, I see no force in the contention
raised by the counsel for the petitioner qua the State of
Himachal Pradesh having consented to the transfer of the assets
of M/s Ultra Tech from Jaiprakash Associates Ltd subject to M/s
Ultra Tech taking over all the liabilities of Jaiprakash Associates
Ltd. Reference in this respect by the petitioner to letter dated
21.06.2017, placed at page 120 of the paper book relevant
extract whereof has been reproduced supra is of no avail, as the
tripartite agreement entered into between the State of Himachal
Pradesh, JAL and M/s Ultra Tech Cement Limited on 29.06.2017
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is subsequent to the letter dated 21.06.2017 and the latter
(letter dated 21.06.2017) is superseded by the former
(tripartite agreement).
.
26. The Scheme of Arrangement, in the case at hand, was a
subject matter of Civil Appeal No.10662 of 2024 titled M/s
Ultra-Tech Cement Ltd. vs. Mast Ram and Others, decided
on 20.09.2024. On scrutiny of the relevant provisions of
Scheme of Arrangement, in the case at hand, the Apex Court
and assets
r of
authoritatively pronounced that all litigation pertaining to the
business Jaiprakash Associates
transferred to M/s Ultra Tech, that arose before the closing
Ltd being
date/effective date, i.e., 29.06.2017, would not be transferred
to M/s Ultra Tech and the same would remain with Jaiprakash
Associates Ltd. Relevant extract of the judgment is being
reproduced here-in-below:-
"22. Clause 1.1 (o) defines the "Effective Date" as
the date on which the Scheme becomes effective in
accordance with its terms, which shall be the Closing
Date [defined in Clause 1.1(k) and Clause 10.1]. The
said date was decided to be 29.06.2017 among the
parties.
23. Clause 1.1(w) defines the business and assets
transferred by JAL to the Appellant. The definition of
the same is reproduced below:
"...(w) "JAL Business" means the business of
manufacturing, sale and distribution of cement
and clinker manufactured at the JAL Cement
Plants, including all rights to operate such
business, its movable or immovable assets,
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captive power plants, DG sets, coal linkages,
rights, privileges, liabilities, guarantees, land,
leases, licenses, permits, mining leases,
prospecting licenses for mining of limestone,
.
letters of intent for mining of limestone,
tangible or intangible assets, goodwill, all
statutory or regulatory approvals, logistics,
marketing, warehousing, selling and distribution
networks {marketing employees, offices,
depots, guest houses and ether related facilities
for the JAL Business), employees, existing
contracts including fly-ash contracts, railway
sidings, fiscal incentives in relation to the JAL
Business, more particularly described in
Schedule I hereto, but does not include
(i) construction equipment an.d such assets to
be listed in Schedule II.
(ii) any liability including contingent liability
disclosed in the balance sheet of JAL Business
on the Closing Date provided to the Transferee,
other than those included in the JAL Financial
Indebtedness and JAL Net Working Capital;
(iii) any guarantee or deposits for any disputes;
(iv) the JAL Excluded Employees;
(v) JAL Non-Moving Stores, Doubtful
Receivables of the JAL Business, non-
recoverable debtors, loans or advances in the
books of the Transferor1. For this purpose, non-
recoverable debtors; loans or advances shall
refer to such debtors; loans or advances for
which Transferor1 has not received any
confirmation for the receivables as mentioned
in Clause 9.1 (i);
(vi) coal mitting block - Mandla (North) and the
related guarantees, deposits etc;
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(vii) fiscal incentives in relation to the JAL
Business that accrue up to the Closing Date;
(viii) any intellectual property of Transferor1;
(ix) litigations pertaining to the JAL Business as
.
of the Closing Date;
(x) freehold plot of land admeasuring about
1087 square metres at Varanasi and land
admeasuring 24.7 acres outside the Balaji plant
in Krishna, Andhra Pradesh;
(xi) 180 megawatt power plant at Churk,
Uttar Pradesh; (xii) railway siding in Turki,
Rewa, Madhya Pradesh;
(xiii) Related Party payables or receivables; and
(xiv) Ghurma limestone mine, Padrach
limestone mine and Bari dolomite mine.
It is clarified that the guarantee listed in
Schedule III B, which shall be updated as of the
Closing Date, shall be the only guarantees
which shall be taken over by the Transferee on
the Closing Date..."
[Emphasis Supplied]
24. The parties by way of Clause 1.1(w)(ix) agreed
that all litigations pertaining to the business and
assets being transferred to the Appellant that arose
before or on the Closing Date would not be
transferred to the Appellant and will remain with JAL.
25. The aforesaid aspect has been further elaborated
under Clause 7 of the Scheme which is reproduced
below:
"7. LEGAL PROCEEDINGS
7.1 All legal or other proceedings (whether
civil or criminal, including before any
statutory or judicial or quasi-judicial
authority or tribunal) by or against the
Transferor1 and /or the Transferor2,
initiated on or arising and pending before
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the Effective Date, and relating to the JAL
Business and the JCCL Business shall
remain with the Transferor1 and/or the
Transferor2, as the case may be.
.
7.2 In the event any case or matter pertaining
to contingent liabilities being in the nature of
disputed claims, not crystallized on the Closing
Date or guarantees listed in Schedule III A and
Schedule XI A or any similar instrument by
whatsoever name called which have been
advance against disputes related to the JAL
Business or the JCCL Business existing on the
Closing Date, or pertaining to NPV of
afforestation charges in respect of mining land
being Block 1, 2, 3, 4 and Ningha of Dalla Plant
and Jaypee Super Plant, by force of law are
transferred to the Transferee, then the
Transferor1 and the Transferor 2, shall have full
control in respect of the defence of such
proceedings including filing the necessary
appeals, revisions, etc.. provided that the
Transferor1 and the Transferor2, as the case
may be, shall not, take any action that is
detrimental to the operation of the JAL Business
and the JCCL Business. Provided that in respect
of such cases pertaining to immovable
properties which are part of the JAL Business or
the JCCL Business, as the case may be the
Transferee shall have a right to participate in
such proceedings to ensure that no action
detrimental to the operation of JAL Business
and the JCCL Business is taken. It is clarified
that: (a) any liabilities in respect of cases or
matter referred to in this Clause 7.2 shall be
paid by the Tranferor1 or the Transferor2 and if
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paid by the Transferee, the same shall be
reimbursed by the Transferor1 or the
Transferor2 within 7 (seven) days of such
payment; and (b) the aforesaid bank
.
guarantees provided by the Transferor1 and the
Transferor2 in respect of the contingent
liabilities being in the nature of disputed claims
related to the JAL Business or the JCCL
Business shall continue wherever required and
the Transferee shall have no obligation to
replace such bank guarantees on the Closing
Date and in the event the period of any such
bank guarantee expires after the Closing Date,
the Transferor1 and /or the Transferor2, as the
case may be, shall renew or replace such
guarantees wherever required.
7.3 The Transferor1, the Transferor2 and the
Transferee shall give full and timely cooperation
to each other for the pursuit of such case or
matter. The Transferee shall promptly give
necessary authorization, power of attorney,
board resolution, etc. for pursuit of such case or
matter to the Transferor1 and the Transferor2.
"
[Emphasis Supplied]
26. Clause 7.1 of the Scheme states without any
ambiguity that any legal or other proceeding by or
against JAL or its unit operating the cement project
relating to the JAL Business as defined in Clause
1.1(w), initiated on or arising and pending before the
Effective Date shall remain with JAL."
27. Other than the aforesaid, the Apex Court was of the
view that any land acquisition proceedings which, had
commenced before the effective date of the scheme, i.e.,
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29.06.2017, wherein compensation remained undetermined in
terms of Clause 7.1 of the Scheme of Arrangement, would fall
within the meaning of expression "other proceedings", as used
.
in Clause 7.1 therein. In view thereof, liability qua the same
would remain with Jaiprakash Associates Ltd. Relevant extract
in this regard is being reproduced here-in-below:-
"27.... .... .... The facts indicate that the land
acquisition proceedings had commenced before the
Effective Date of the Scheme (i.e. 29.06.2017) and
the compensation remained undetermined as on the
Effective Date. To our understanding, these facts
attract the application of Clause 7.1 of the Scheme
as the acquisition proceedings and the liability to
pay compensation associated with it squarely falls
within the meaning of 'other proceedings' as
intended by the parties under the said Clause.... ....
..."
28. Admittedly litigation in the case at hand pertains to the
business and assets of Jaiprakash Associates Ltd, which have
been transferred to M/s Ultra Tech. Section 4 Notification under
the Land Acquisition Act, in the case at hand, had been issued
on 12.08.2005. As a sequel thereto, an Award bearing
No.1/2008, was passed by the Land Acquisition Collector on
10.01.2008. Payment on account of acquisition as compensation
stands paid and possession of the property acquired stands
taken. In view thereof, acquisition is complete. (See Kolkata
Municipal Corporation referred supra in para20). The reference
Award therefrom is dated 29.06.2017. Against the same, an
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appeal under Section 54 is pending consideration before a
Coordinate Bench of this Court. Meaning thereby that the claim
of the present petitioners for enhanced compensation, as
.
awarded by the reference court is being disputed by respondent
No.2 herein. The same according to the petitioner has not
crystallized on the closing date and hence is a contingent
liability, as contemplated under Clause 7.2 of Scheme of
Arrangement.
29. Clause 7.2 of
Scheme of Arrangement
pertaining to contingent liabilities being in the nature of
disputed claims, not crystallized on the closing date refers to
besides
certain other liabilities which by force of law are transferred to
M/s Ultra Tech Cement Limited. In respect of such cases in
terms of Clause 7.2 of Scheme of Arrangement pertaining to
immovable properties, which are part of the Jaiprakash
Associates Ltd Business or the JCCL Business, as the case may
be M/s Ultra Tech Cement Limited shall have a right to
participate in such proceedings to ensure that no action
detrimental to the operation of Jaiprakash Associates Ltd
Business and the JCCL Business is taken. It has further been
clarified in Clause 7.2 of Scheme of Arrangement that any
liabilities in respect of cases or matter referred to in this Clause
7.2 shall be paid by Jaiprakash Associates Ltd and if paid by the
M/s Ultra Tech Cement Limited, the same shall be reimbursed
by Jaiprakash Associates Ltd within 7 (seven) days of such
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payment. Hence even on this account liability cannot be
fastened on M/s Ultra Tech Cement Limited as there is no
liability which is being transferred to M/s Ultra Tech Cement
.
Limited by force of law.
30. The contention raised by the petitioner qua the payment
of awarded amount by M/s Ultra Tech, in pursuance to the
supplementary award dated 02.05.2022 and thereby making
M/s Ultra Tech liable for payment, in the case at hand, is devoid
of any merit. In this respect, suffice it to state that the main
award bearing No.1 of 2008 was passed on 10.01.2008. At the
time of passing of the initial award, the award qua structures,
houses, trees etc. existing on the acquired land, could not be
passed. The supplementary award was the next step in the
proceedings, which resulted in award dated 02.05.2022 being
passed. Admittedly, the acquisition proceedings had
commenced before the effective date of the scheme, i.e.,
29.06.2017 and the compensation had remained undetermined
as on the effective date. Hence, in view of the judgment passed
by the Hon'ble Apex Court in M/s Ultra-Tech Cement Ltd. vs.
Mast Ram and others (supra), there is no force in the said
contention.
31. Yet, another contention raised by the petitioner is that
the lands in question are not covered in the list of assets
transferred to the M/s Ultra Tech under the Scheme of
Arrangement. The argument is without any force in view of the
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pronouncement made by the Apex Court in M/s Ultra-Tech
Cement Ltd. vs. Mast Ram and others (supra). Relevant
extract is being reproduced here-in-below:-
.
"31. However, we take notice of the fact that the
subject land was not covered under the list of assets
transferred to the Appellant under the Scheme and
remains in the ownership of the JAL till date. While
we agree that the acquisition of the subject land
was done for the purposes of the cement project,
we cannot accept the contention of JAL that the
liabilities arising out of the said land should be
fastened upon the Appellant without any such
liabilities being covered by the Scheme, not even on
the strength of the argument that the subject land
was integral to the cement project."
32. In the case at hand, I am of the considered view
that no ground is made out in the present petition to
invoking the jurisdiction of this Court under Article 227 of
the Constitution of India.
33. In view of the aforementioned facts and attending
circumstances, the present petitions are dismissed being
devoid of merits, so also the pending miscellaneous
application(s), if any.
(Bipin Chander Negi)
Judge
02nd September, 2025
(KS/Gaurav Rawat)
