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2008 (8) TMI 943 - KERALA HIGH COURTJurisdiction - Powers and jurisdiction of Chief Judicial Magistrate to deal with application u/s 14 of SARFAESI Act - Powers of the Chief Judicial Magistrates in non-metropolitan areas and in metropolitan areas - Doctrine of implied powers - constitutional validity of the section 14 - HELD THAT:- We note that the Hon'ble Supreme Court has in Mardia Chemicals Ltd. etc. v. Union of India and others [2004 (4) TMI 294 - SUPREME COURT] upheld the validity of the provisions of the Securitisation Act except sub section 2 of section 17 which was declared ultra vires Article 14 of the Constitution of India. Thereafter, the Act was amended by Amendment Act 30 of 2004 and requirement of deposit of 75% of the amount claimed was deleted. In view of the this, it is not possible for the petitioners to challenge the constitutional validity of the section. A reading of the statutory provisions would show that u/s 14 of the Securitisation Act, the Magistrate is only rendering assistance to the secured creditor in taking possession of the secured assets as provided u/s 13(4) of the Securitisation Act. After 60 days' notice as prescribed u/s 13(2), secured creditor can approach the Magistrate for taking possession of the land. Magistrate has no power to refuse the request, but, before taking action, he can verify whether 60 days' notice as prescribed u/s 13(2) was issued or not and whether secured asset is identifiable. Powers of the Chief Judicial Magistrates in non-metropolitan areas and Chief Metropolitan Magistrates in metropolitan areas are one and the same. Here, in this case, there is no casus omissus also. Chief Judicial Magistrates in metropolitan areas are designated as Chief Metropolitan Magistrates and vice versa mutatis-mutandis by implication and by reference to the area of jurisdiction. Chief Judicial Magistrate in a non-metropolitan area stands in the same footing as Chief Metropolitan Magistrate in metropolitan area and, their designations are used synonymously to denote the authority depending upon where one is situated, in a metropolitan area or a non-metropolitan area and, therefore, we agree with the view of the learned single Judge that in non-metropolitan areas, apart from the District Magistrate, the powers can be exercised by the Chief Judicial Magistrate also. A similar view was taken by the Madras High Court in The Dhanalakshmi Bank Limited v. Kovai Foods and Beverages [2006 (12) TMI 544 - MADRAS HIGH COURT]. An express grant of statutory powers carries with it by necessary implication the authority to use all reasonable means to make such grant effective. Thus in ITO v. M.K. Mohammad Kunhi held that the Income Tax Appellate Tribunal has implied powers to grant stay, although no such power has been expressly granted to it by the Income Tax Act. Similar examples where this Court has affirmed the doctrine of implied powers are Union of India v. Paras Laminates (P) Ltd., [1990 (8) TMI 140 - SUPREME COURT], RBI v. Peerless General Finance and Investment Co. Ltd.[1996 (1) TMI 332 - SUPREME COURT], CEO & Vice-Chairman, Gujarat Maritime Board v. Haji Daud Haji Harun Abu,[1996 (11) TMI 467 - SUPREME COURT], J.K.Synthetics Ltd. v. CCE [1996 (8) TMI 110 - SUPREME COURT], State of Karnataka v. Vishwabharathi House Building Coop. Society [2003 (1) TMI 707 - SUPREME COURT], etc. An overall reading of the section shows that the power of the Magistrate is to render assistance to the secured creditor in taking possession of the secured assets. He can also appoint a Commissioner for identification of the secured assets and taking possession of the secured assets etc. and if there is any resistance, ask for police & assistance and take any effective steps to have possession of the secured assets taken over. Therefore, we dismiss the writ appeal, the writ petitions and the Crl. R.P.
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