( 1. ) BY this order I. A. No. 16161/2006 is considered and decided.

( 2. ) THIS application is moved by the M/s Visvesvaraya Industrial research and Development Centre, Mumbai (for short the Centre) claiming possession of a shop situated at Unit No. 63 in Trade Centre, Arcade, Cuffe parade, Colaba, Mumbai.

( 3. ) THE order sheets dated 22-11-2002 passed by this Court shows that after winding up order was passed by this Court, the Official Liquidator submitted his report stating that the property in question was owned by the company and therefore the same should be auctioned and this Court has directed to sell all the movable properties of the Company including the present shop.

( 4. ) IN pursuance of this order, another order was passed by this Court on 22-11-2005 and 18-10-2006 for issuing advertisements, whereby this Court has directed to put the property of the Company to auction, therefore, the official Liquidator has issued advertisement and put the property in auction. ( 5. ) IT is contended that the said Research Centre is a Company registered under the provisions of Companies Act, 1956. The Company has entered into an agreement to lease out a shop admeasuring 750 sq. ft. , out of which 493 sq. ft. being ground area and 247 sq. ft. being mezzanine area for a period of 60 years to the company under winding up proceedings, ie. , M/s. Jiyaji rao Cotton Mills Ltd. on 29-8-1977. It is alleged that as per the agreement the company/lessee shall not transfer the benefit of and/or their right, title and interest to any party without the previous consent in writing of the Centre. It is contended that terms of the conditions are violated, then the Centre has right of re-entry. The copy of the agreement to lease is annexed with the application as annexure a.

( 6. ) CLAUSE 8 of the said agreement provides that before entering into possession of the said premises, the lessee shall execute with the Centre a deed of lease in duplicate containing the terms set out in the Annexure a. While clause 4 of the agreement provides that lessee shall not transfer the benefit and/or their right, title and interest under the agreement to any party without the previous consent in writing from the Centre.

( 7. ) CLAUSE 24 of the agreement further provided that if the lessee shall commit a breach of any of the stipulations covenants and conditions contained in the agreement and lessee firm shall be dissolved or the lessee Company goes or is taken into liquidation or suffers and distress or execution to be levied on their goods, then it shall be lawful for the Centre at any time thereafter to re-enter upon the demised premises or any part thereof in the name of the centre.

( 8. ) CONTENTION of learned Counsel for the Centre is that this clause shows that in case of winding up of the company, it is lawful for the Centre to reenter into the possession of the land and therefore possession of the said shop be returned to the Centre.

( 9. ) IT is further contended that this Court has no jurisdiction to auction the property owned by the Centre. Such direction will amount to unlawful subtenancy or parting with possession which is prohibited by Section 14 of the m. P. Accommodation Control Act. The Official Liquidator being a custodial legis should not create third party rights in the property which is prohibited by law. Section 457 (b) of the Company Act empowers the liquidators to retain possession of the property of the company only to carry on business of the company so far as may be necessary for the beneficial winding up of the company.

( 10. ) THE learned Counsel for the Centre submitted that the property in question was leased for 60 years with a specific condition that in case winding up of the company the property in question shall be returned to the lessor and lessor shall have right of re-entry. He further contended that the property in question is now not required for the business of the Company for which it was taken on lease.

( 11. ) THIS fact i