Point of Law: Section 60 of Code deals with Adjudicating Authority for Corporate persons.

ORDER :

The 1st petitioner is the Principal Chief Conservator of Forests, Government of Karnataka. The State calls in question an order passed by the National Company Law Tribunal, Ahmedabad (‘the Tribunal’ for short) on an application filed under Section 60 of the Insolvency and Bankruptcy Code, 2016 (‘the Code’ for short).

2. Brief facts that lead the petitioners to this Court in the subject petition, as borne out from the pleadings, are as follows:-

The respondent – M/s Wind World (India) Limited (hereinafter referred to as ‘the Company’ for short) was granted a lease by the Karnataka Renewable Energy Development Corporation Limited in respect of land measuring 221.80 Hectares under a lease deed dated 03-09-2003. The land granted for lease was a Forest land. The lease was for a period of 15 years and came to an end on 19-06-2018. The Company applies for renewal of lease on 09-01-2020 and the same was pending consideration before the Competent Authority. Meanwhile the Company requests the State to permit it to start the wind mill as the same would get damaged if it is not put into functioning. The request of the petitioner was considered and to safeguard the interest, pending consideration of final liabilities, it was given such permission on 23-07-2020. The permission was subject to clearance of the Forest Department. The Forest clearance did not come about for a long time. The Company on declaration of it being an insolvent was before the Tribunal invoking Section 14 of the Code. The proceedings were pending before the Tribunal right from 2018 and all the above permissions were granted during the pendency of proceedings before the Tribunal.

3. The State noticing the fact that forest clearances were not placed before it for continuation of permission to run the windmill drew up certain proceedings on 07-05-2022. In the proceedings, the State resolves to immediately suspend operations of the windmill till further orders and directed that documents be placed before Government for continuance of operation of the windmill. The said proceeding led to a communication dated 07-05-2022 bringing it to the notice of the Company that it is a long pending issue and it may be treated as urgent, otherwise it would be recommended for closure of the file. The Company does not challenge these orders before any competent fora but knocks at the doors of the Tribunal in pending case by filing an application under sub-section (5) of Section 60 of the Code for passing of an interim order. The Tribunal by the impugned order dated 06-07-2022 directs the State Government to permit functioning of the windmill by holding that it was essential to resolve insolvency of the corporate debtor i.e., the Company. Pursuant thereto the State Government knocks at the doors of this Court calling in question the said order of the Tribunal.

4. Heard Sri Dhyan Chinnappa, learned Additional Advocate General appearing for the State and Sri K.G. Raghavan, learned senior counsel appearing for the respondent/Company.

5. The learned Additional Advocate General would submit that the Tribunal could not have acted as a constitutional Court to suspend the order or the proceeding of the State Government and permit functioning of the windmill. All these are powers vested in the constitutional Courts and not on the Tribunal. The law in this regard is very clear that if there are statutory clearances to be given, those clearances cannot be given a go bye by an order of the Tribunal. He would contend that the order of the Tribunal is one without jurisdiction and, therefore, the State need not approach the Appellate Tribunal against the impugned order, as an order which is without jurisdiction is a nullity in law.

6. On the other hand, the learned senior counsel appearing for Company would submit that what the Tribunal is empowered to do is clearly spelt out under Section 60 of the Code and its interpretation by the Apex Court in plethora of judgments. He would contend that merely becau