Kerala High Court
Sajikumar T.M vs The District Collector on 27 June, 2023
Author: T.R.Ravi
Bench: T.R.Ravi
WPC 6830/2023 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, 27TH DAY OF JUNE, 2023/6TH ASHADHA, 1945
WP(C) NO. 6830 OF 2023
PETITIONER:
SAJIKUMAR T.M,
AGED 48 YEARS
S/O. LATE THANKAPPAN MACHINGAPARAMBU
PAZHAVEEDU PO, ALAPPUZHA,
PIN - 688009
BY ADVS.
SRI SADCHITH.P.KURUP
SRI C.P.ANIL RAJ
SRI SIVA SURESH
RESPONDENTS:
1 THE DISTRICT COLLECTOR,
COLLECTORATE, ALAPPUZHA,
PIN - 688001
2 THE TAHSILDAR,
TALUK OFFICE AMBALAPPUZHA,
ALAPPUZHA, PIN - 688013
3 THE VILLAGE OFFICER,
PAZHAVEED VILLAGE OFFICE,
ALAPPUZHA, PIN - 688002
4 CANARA BANK,
ALAPPUZHA BRANCH, VSV BUILDING,
IRON BRIDGE PO, MULLAKKAL,
ALAPPUZHA,
REP. BY ITS BRANCH MANAGER,
PIN - 688001
5 SACHIN SHYAM
PROPRIETOR M/S. SKILDERZ DEVELOPERS
S/O. SHYAM RAJU, ARJUNAM
THIRUVAMBADY JUNCTION PO
ALAPPUZHA, PIN - 688002
WPC 6830/2023 2
6 SHYAM RAJU
S/O. PADMANABHAN ARJUNAM,
THIRUVAMBADY JUNCTION PO,
ALAPPUZHA, PIN - 688002
7 RAJEEV R
S/O. RAJAN K POOJA, RAJ BHAVAN EAST OF KOMALAPURAM SOUTH
ARYAD, ALAPPUZHA, PIN - 688521
BY ADVS.
SRI M.RAJEEV, GOVT.PLEADER
SRI ANIRUDH KADAVIL
SRI RENOY VINCENT
SRI M.J.RAJASREE
SRI K.V.ANIL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
30.03.2023, THE COURT ON 27.6.2023 DELIVERED THE FOLLOWING:
WPC 6830/2023 3
T.R. RAVI, J.
--------------------------------------------
WP(C)No.6830 of 2023
--------------------------------------------
Dated this the 27th day of June, 2023
JUDGMENT
The writ petition has been filed praying to quash Exts.P3 and P9; direct the 4th respondent not to interfere with the possession of the petitioner with respect to the property scheduled in Ext.P3; and to declare that the 4th respondent does not have any authority to interfere with the petitioner's rights in the property occupied by him in 4.05 Ares located in Sy.No.619/1F of Pazhaveedu Village.
2. The petitioner claims to be a tenant of respondents 5 and 6, who had obtained a loan from the 4th respondent Bank. In proceedings initiated under the SARFAESI Act against respondents 5 and 6, the aforesaid property was brought to sale, and the 7 th respondent purchased the same in the auction. When physical possession was sought to be taken by filing an application before the Chief Judicial Magistrate, initially, an order was issued rejecting the application stating that the petitioner was in possession as a tenant prior to the mortgage and he could not be evicted. The 4 th respondent challenged the said order before this Court in W.P.(C)No.28054 of 2021, which was allowed as per Ext.P7 judgment. The petitioner was WPC 6830/2023 4 the 3rd respondent in the said writ petition. This Court in Ext.P7 specifically found that the Chief Judicial Magistrate has travelled beyond the scope of Section 14 of the SARFAESI Act. This Court found that the remedy available to any person who is objecting to the taking of possession is by way of filing an application before the Debt Recovery Tribunal, and admittedly, the 3rd respondent had not filed any application seeking such reliefs. The Court also found that as there is no registered lease agreement between the 3rd respondent and the borrower, the 3rd respondent is not entitled to possession of the secured asset for a period extending the time limit prescribed under Section 107 of the Transfer of Property Act. Reliance was also placed by this Court in the judgment of the Hon'ble Supreme Court in Bajarang Shyamsundar Agarwal v. Central Bank of India [(2019) 9 SCC 94]. This Court disposed of the writ petition with a direction to the Chief Judicial Magistrate to pass fresh orders in the light of the observations in the judgment as well as the law laid down by the Hon'ble Supreme Court in Balkrishna Rama Tarle Dead Thr.LRs & Anr. v. Phoenix ARC Private Limited & Ors. [2022 (5) KLT OnLIne 1150 (SC)]. Pursuant to Ext.P7, the Chief Judicial Magistrate issued orders appointing an Advocate Commissioner to take possession, and Ext.P9 is the notice issued by the Advocate Commissioner.
WPC 6830/2023 5
3. In the present writ petition, the petitioner contends that the property that was put up for sale is shown to be situated in Mullakkal Village, while the property in the possession of the petitioner is in Pazhaveedu Village. It is also contended that the property is situated in 'puramboke'. Documents are sought to be produced in support of the said contention.
4. A counter affidavit has been filed by the 4th respondent pointing out that the petitioner cannot have a claim against the title of respondents 5 and 6. It is submitted that the properties were the subject matter of purchase certificate No.301/1994 issued by the Land Tribunal, Kollam, in S.M.No.1667/1994. It is also submitted that even though there were typographical errors regarding the name of the Village, as a matter of fact, the same certificate has been issued by the 4th respondent in favour of the 7 th respondent as Ext.R4(2), which clearly shows that the property is in Pazhaveedu Village. It is also submitted that in view of Ext.P7 judgment of this Court, which is binding on the petitioner, no such claim can be entertained. It is also submitted that in view of the judgment of the Hon'ble Supreme Court in Union Bank of India v. Satyawati Tondon & Ors. (CDJ 2010 SC 651], a writ petition seeking to quash Exts.P3 and P9 is not maintainable and is liable to be dismissed.
5. I have heard the counsel for the petitioner and the respondent at length.
WPC 6830/2023 6
6. Even though this Court is not called upon to entertain such a writ petition at the hands of a person who claims to be a tenant, but not under a registered document, I deem it necessary to dispose of the writ petition on its merits. I do not find any reason to grant any of the prayers in this writ petition for reasons more than one. Firstly, the petitioner is bound by Ext.P7 judgment of this Court wherein this Court specifically held that the claim of the petitioner, who is not claiming to be a tenant under a registered document, cannot be entertained in view of the law laid down by the Hon'ble Supreme Court. Secondly, this Court had specifically found that the remedy, if at all available to the petitioner, is to prefer an application before the Debt Recovery Tribunal, which had not been done even at the time of presenting the earlier writ petition. The attempt of the petitioner is to raise a collateral challenge in this writ petition under the guise of the challenge to the order of the Chief Judicial Magistrate appointing an Advocate Commissioner to take possession of the property.
The writ petition fails and is dismissed.
Sd/-
T.R. RAVI JUDGE dsn WPC 6830/2023 7 APPENDIX OF WP(C) 6830/2023 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE DEMAND NOTICE ISSUED TO THE RESPONDENTS 5 & 6 ON 24.1.2020 EXHIBIT P2 TRUE COPY OF THE POSSESSION NOTICE 16/10/2020 ISSUED BY 4TH RESPONDENT EXHIBIT P3 TRUE COPY OF THE APPLICATION UNDER SECTION 14(1) OF SARFAESI ACT FILED BY THE 4TH RESPONDENT ON 09/12/2020 BEFORE THE CJM COURT ALAPPUZHA EXHIBIT P4 TRUE COPY OF THE SALE NOTICE DATED 24.3.2021 ISSUED BY THE 4TH RESPONDENT EXHIBIT P5 TRUE COPY OF THE CONFIRMATION OF SALE DATED 29.4.2021 ISSUED BY THE 4TH RESPONDENT EXHIBIT P6 TRUE COPY OF THE SALE CERTIFICATE DATED 02/06/2021ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 19.12.2022 IN WPC 28054/2021 BEFORE THIS HON'BLE COURT EXHIBIT P8 TRUE COPY OF THE RELEVANT EXTRACT OF THE BASIC TAX REGISTER IN SURVEY NO. 619/1F EXHIBIT P9 TRUE COPY OF THE NOTICE DATED 20.2.2023 ISSUED BY THE ADVOCATE COMMISSIONER EXHIBIT P10 TRUE COPY OF SALE DEED NO.3176/1975 OF ALAPPUZHA SUB REGISTRY, EXECUTEDBY THE OWNER OF THE PROPERTY OBTAINED THROUGH EXT.R4(I). RESPONDENT EXHIBITS EXHIBIT R4 (1) A TRUE COPY OF THE PURCHASE CERTIFICATE NO.301/1974 ISSUED BY LAND TRIBUNAL, KOLLAM IN SM NO.1667/1974 DATED 06.11.1974 IN FAVOUR OF SRI.NEELAKANDA PILLAI EXHIBIT R4(2) A TRUE COPY OF THE SALE CERTIFICATE NO.1077/2022 ISSUED BY THE 4TH RESPONDENT IN FAVOUR OF THE 7TH RESPONDENT ON 19.03.2022 EXHIBIT R4(3) A TRUE COPY OF THE JUDGMENT IN VARIMADUGU OBI REDDY VERSUS B. SREENIVASULU AND OTHERS IN CIVIL APPEAL NO.8470/2022 DATED 16.11.2022 OF SUPREME COURT OF INDIA EXHIBIT R4(4) A TRUE COPY OF THE JUDGMENT IN UNITED BANK OF INDIA VERSUS SATYAWATI TONDON AND OTHERS IN CIVIL APPEAL NO. 5990 OF 2010 DATED 26.07.2010 OF SUPREME COURT OF INDIA WPC 6830/2023 8 EXHIBIT R4(5) A TRUE COPY OF THE LETTER WITH REFERENCE NO.162/63 DATED 21.03.2023 ISSUED BY THE 3RD RESPONDENT IN FAVOUR OF 4TH RESPONDENT EXHIBIT R4(6) A TRUE COPY OF THE BASIC TAX REGISTER OF PAZHAVEEDU VILLAGE DATED 21.03.2023 ISSUED BY THE 3RD RESPONDENT EXHIBIT R4(7) A TRUE COPY OF THE NAME AND ADDRESS DETAILS OF THE PATTADHAR DATED 21.03.2023 ISSUED BY THE 3RD RESPONDENT EXHIBIT R4(8) A TRUE COPY OF THE THANDAPPER ACCOUNT NO.1758 DATED 21.03.2023 ISSUED BY THE 3RD RESPONDENT EXHIBIT R4(9) A TRUE COPY OF THE THANDAPPER ACCOUNT NO.13979 DATED 21.03.2023 ISSUED BY THE 3RD RESPONDENT EXHIBIT R4(10) A TRUE COPY OF THE THANDAPPER ACCOUNT NO.6888 DATED 21.03.2023 ISSUED BY THE 3RD RESPONDENT EXHIBIT R4(11) A TRUE COPY OF THE THANDAPPER ACCOUNT NO.9905 DATED 21.03.2023 ISSUED BY THE 3RD RESPONDENT EXHIBIT R4(12) A TRUE COPY OF THE THANDAPPER ACCOUNT NO.13730 DATED 21.03.2023 ISSUED BY THE 3RD RESPONDENT