Calcutta High Court (Appellete Side)
Sri Arupeswar Chatterjee & Ors vs Bank Of Baroda & Ors on 14 May, 2015
Author: I.P. Mukerji
Bench: I.P. Mukerji
19 14.5.15 W.P. 8615 (W) of 2015 Sri Arupeswar Chatterjee & Ors.
Vs.
Bank of Baroda & Ors.
Mr. P. P. Banerjee
Mr. S. Ahmed
Mr. D. Chatterjee
Md. D. Taslim .... For the Petitioner.
Mr. Siddhartha Banerjee ... For the Bank.
Mr. T.M. Siddique .... For the State.
The order dated 23rd February, 2015 passed by the Additional District Magistrate (General), Birbhum is challenged on the ground that he did not have the jurisdiction to pass such an order.
It is argued on behalf of the petitioner that this is the position after amendment of Section 14 of The SARFAESI Act, 2002 by insertion of Section 1(A) authorizing the District Magistrate to authorize any officer subordinate to him to, inter alia, take possession of assets.
On my reading of Section 14 and various sub- sections and sub-paragraphs thereunder, the substantive decision to take possession under Section 14 has to be taken by the District Magistrate. This view is fortified by the second S.D. proviso to sub-section (1) which says that after receipt of an affidavit from an authorised officer and after satisfying himself regarding the contents, the District Magistrate will "pass suitable orders for the purpose of taking possession of the secured assets." Therefore after the District Magistrate issues an order for taking possession of the secured assets he can authorize an officer subordinate to him to take possession under Section 1A.
From the impugned order it is quite plain that the Additional District Magistrate (General) had taken the decision himself "after careful consideration of the matter."
I was shown paragraph 19 of Harun Ali Mallick VS. State of West Bengal & Ors. reported in AIR 2011 Calcuta, 45 by Mr. Banerjee, learned Advocate for the Bank to argue that since the Additional District Magistrate could exercise the same powers as the District Magistrate he could discharge the latter's functions under Section 14 of The SARFAESI Act, 2002.
This judgement was made before the recent amendments to the said Act. The amendment discussed above and the insertion of Section 1A after Section 14 clarifying that the District Magistrate can delegate his powers to take possession to his subordinates, makes the intendment of the legislature absolutely clear that the decision to take possession cannot be delegated by the District Magistrate. Furthermore, it is not shown that the State government had entrusted the Additional District Magistrate with powers of the District magistrate under Section 14.
Exercising the same functions and enjoying the same post are two different things. The first appointment of an Indian Administrative Service Officer is usually to the post of an Additional District Magistrate. Thereafter, he is promoted to the rank of District Magistrate. Therefore, the rank of a District Magistrate and Additional District Magistrate is not the same. If the legislature had intended an officer of a lower rank to perform the functions under Section 14, it would have specified the same. Therefore, in my understanding of the Act the function of the District Magistrate under the first sub-section of Section 14 has to be performed by him personally and by nobody else, unless this particular power of the District Magistrate is given to the Additional District Magistrate or any other officer by the State government.
For these reasons, prima facie the order dated 23rd February, 2015 appears to be invalid.
On the above prima facie case, this writ application is admitted. No action is to be taken on the basis of this invalid order.
Affidavit-in-opposition by 10th June, 2015. List this application on 25th June, 2015. Affidavit-in-reply may be filed in the mean time.
This will not preclude the District Magistrate to cancel the impugned order and pass a fresh order in accordance with law under Section 14 of the Said Act on the self-same application filed by the Bank for such order.
Urgent certified photocopy of this order, if applied for, be supplied to the parties on priority basis.
( I.P. Mukerji, J.)