TMI Blog2020 (10) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... says that no such approval will be necessary when the only change in the name of the company is deletion therefrom or addition thereto of the word 'private' consequent on the conversion of any one class of the company to another class in accordance with the provisions of the Act. Thus, any change that is brought about in the name of a company by either deletion or addition of the word 'private' would not require written approval. What appears to be the legal position from reading the aforesaid sections is that mere change in the name of company from public to private would not tantamount to a change in the constitution of the company since this is brought out only with a view for the purpose of complying with the requirements viz-a-viz the government under the Companies Act. There is no change in the constitution thereof. Accordingly, the stand of the corporation for levying of transfer fees is bad. Non utility charges or penalty for non utilisation of plots - HELD THAT:- It is evident from reading the notification of the Ministry of Environment and Forests dated 25.08.2009 that the Government of India enforced a moratorium on construction due to the absence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the Companies Act, 2013. 2.3 The petitioner made an application on 20.11.2017 to the respondent GIDC to amend the name in the records. The petitioner received a letter dated 10.04.2018, which is impugned in this petition as well as the other petition albeit for different amounts demanding transfer fee and non utility penalty. In the facts of this petition the demand was ₹ 91,56,140/- towards transfer fee and ₹ 1,83,12,280/- towards nonutility penalty. 3. Mr. Navin Pahwa, learned Senior Advocate with Mr. Chaitanya Joshi, learned advocate for the petitioner made the following submissions: (I) As far as the issue of non utility penalty is concerned, Mr. Pahwa submitted that as a result of a moratorium of the Ministry of Environment and Forests issued vide notification dated 25.08.2009, the plot allotted could not be used. (II) The notification dated 25.08.2009 kept all activities in the Ankleshwar GIDC in abeyance as a result of environmental issues which were only lifted by a notification dated 25.11.2016. The petitioner therefore as a result of force majeure could not utilise the plot for such purposes and the the non utility penalty was unjustified. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al clearance on 26.10.2017 and the environmental clearance was granted only on 31.12.2019. With respect to the plot at Panoli the environmental clearance was granted on 14.04.2018. 3.1 In support of his submission on the issue of transfer charges, Mr. Pahwa relied upon the following decisions: (a) Anup Industries Ltd. vs. State of Gujarat reported in (2002) 3 GLH 303. (b) Hasmukhbhai Dhanjibhai Zaveri vs. Parthsarthy reported in 1971 GLR 128 (paras 14:16 to 19) in support of his submission that the orders had serious civil consequences and so could not have been passed without giving an opportunity of hearing to the petitioner. (c) Kothari Filaments and Another vs. Commissioner of Customs (Port) Kolkata and Others (2009) 2 SCC 192. 4. Mr. Rajesh Dave, learned advocate for the respondent GIDC in both the petitions made the following submissions: (I) Relying on the letter of the GIDC and reply filed, Mr. Dave submitted that reading of the policies would indicate that what in fact occurred was a change in substantial shareholding pattern. The policy exempts levying of transfer fee only when 100% shareholding remains the same and only then the application can be consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. 49.02 4 M/s Okley Bowden Co. Pvt. Ltd. 3.54 5 D.K. Jhaver 3.54 6 J.K. Jhaver 2.84 7 Kapil Jhaver 1.77 8 Srikanta Jhaver 3.77 9 Manju J Jhaver 2.75 10 M/s. RSVK Mercantile Pvt. Ltd 9.73 11 Bimla Jhaver 1.63 12 M/s. D.K. Securities Pvt. Ltd 4.56 13 M/s. Jhaver Mercantile Pvt. Ltd. 7.64 14 M/s. RSJK Project Consultancy Pvt. Ltd. 0.6 15 M/s. Sri Hari Agencies Pvt. Ltd. 0.6 16 M/s. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.49 Total 100 5.3 The case of the Corporation that was looking to the percentage shareholding in both the case at the time of allotment and at the time of application, the shareholding percentage did not remain the same. Only when at the time of transfer, when the 100% shareholding remains the same does it fall in the name of 'change of name category'. However, if there is a change in the percentage of shareholding, such application has to be processed under the formal and informal transfer category. The stand of the corporation therefore is that, of the family members who were initially holding the shares one Shri KK Jhaver and Manju Jhaver exited and one Abhimanyu Jhaver came in as a new shareholder and the shareholding of Kapil Jhaver increased from 1.77 to 3.06. There was therefore a change of shareholding to that extent which did not fall in the 100% shareholding change and therefore the change will come within the formal and informal category of transfer. This in short is the issue that needs to be resolved. 5.4 What the corporation has lost sight is that one Ramkishan Srikishan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereof. Accordingly, the stand of the corporation for levying of transfer fees is bad. 6. As far as the case of non utility charges or penalty for non utilisation of plots is concerned, it is evident from reading the notification of the Ministry of Environment and Forests dated 25.08.2009 that the Government of India enforced a moratorium on construction due to the absence of environmental clearance. The moratorium was lifted only after 7 years by a memorandum dated 25.11.2016. No environmental clearance could be obtained and no permission for construction could be granted during this period and as a result of facts beyond the control of the petitioner, the plots remained unutilised. Therefore even the recovery of penalty and non utilisation charges are without authority of law. Merely because in one of the petitions, the petitioner has paid such charges which otherwise he was not obliged to pay in view of the moratorium, that itself would not result in ousting the petitioner from the merits of that petition. 7. Both the petitions are accordingly allowed. The action of the respondent Corporation in demanding transfer fee and non utility penalty in respect of the plots is held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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