2016 (5) TMI 385 - HC - Indian Laws

Taking possession of the residential house - taking over of possession of the secured interest to the secured creditor - Held that - At the stage of making over the possession of the secured interest to the secured creditor, any person, whose interests are adversely impacted in the process of taking possession by the Chief Metropolitan Magistrate or the District Magistrate, as the case may be, acting on its own or acting though a Commissioner appointed for the said purpose, is entitled to file his objections for recording the fact of taking possession of the land (secured asset). When any such memorandum of objections has been drawn and presented before the Chief Metropolitan Magistrate or the District Magistrate, as the case may be, the said Court is bound to consider the same and pass an appropriate order. In the instant case, no such memorandum of objections has been drawn by the petitioner or filed before the Chief Metropolitan Magistrate. Therefore, the statement made by the Advocate-Commissioner in her affidavit filed before us, clearly brings out, in paragraph 3, that she has identified the scheduled property and executed the warrant and further went on to assert that the petitioner, his servants, his wife and several others stated that the house bearing D.No. 1-5-230 situated in Survey No. 51/EE of Alwal Village, Malkajgiri Mandal, Ranga Reddy District belongs to the petitioner herein. We have to go by her statement of fact that the said house bearing D.No. 1-5-230 is, in fact, lying in Survey No. 51/EE, but not in Survey No. 51/AA. This apart, the learned Advocate- Commissioner has also recorded, in paragraph 3 of her affidavit, that the petitioner never filed any work order (memo) before her requiring her to execute the warrant by any method specified in the work memo. In the absence of any such material to the contra, the conduct of the Advocate-Commissioner in taking possession of the building bearing D.No. 1-5-230 cannot be objected to or found fault with. Even otherwise, there is no credible material that was placed on record of this Court to show that the house bearing D.No. 1-5- 230 is actually lying in Survey No. 51/AA, but is not lying in Survey No. 51/EE of Alwal Village. The fact that the house property has been assessed to property tax by the local municipality/corporation, does not necessarily reflect that the said house property is lying in Survey No. 51/AA, but not in Survey No. 51/EE. As was already noticed supra, the revenue record filed by the petitioner itself has brought out that he has land of an extent of Ac.1.03 guntas lying in Survey No. 51/EE and land of an extent of Ac.0.15 guntas lying in Survey No. 51/AA. In which parcel of these two extents of land did the petitioner construct the house bearing D.No. 1-5-230 is a matter left for guessing by us. In the absence of any credible material, we will not be justified in returning a finding of fact that house bearing D.No. 1-5-230 was, in fact, lying in Survey No. 51/AA, but not in Survey No. 51/EE. Even otherwise, that being a controversy of fact, which can only be determined upon collection of evidence, both oral and documentary, in exercise of jurisdiction under Article 226 of the Constitution, seldom such collection of evidence is resorted to, in that, this Court is not forbidden from collecting any such evidence, but was not indulged in routinely.

Summary

Issues Involved:
1. Legality of possession taken by Respondents 1 and 2 of the residential house.
2. Applicability of the SARFAESI Act to agricultural land.
3. Validity of the actions taken by the Advocate-Commissioner.

Issue-wise Detailed Analysis:

1. Legality of Possession Taken by Respondents 1 and 2:
The petitioner sought a writ of mandamus to declare the action of Respondents 1 and 2 in taking possession of the residential house as arbitrary, illegal, and unconstitutional. The petitioner argued that the possession was taken without proper authority and beyond the scope of the warrant issued by the Chief Metropolitan Magistrate. The court examined the provisions of the SARFAESI Act, particularly Section 13, which allows a secured creditor to enforce security interest without court intervention, and Section 14, which empowers the Chief Metropolitan Magistrate to assist in taking possession of secured assets. The court found that the Chief Metropolitan Magistrate acted within his jurisdiction and correctly appointed the Advocate-Commissioner to execute the warrant. The court also noted that the petitioner did not file any objections during the possession process, and the Advocate-Commissioner's actions were deemed lawful.

2. Applicability of the SARFAESI Act to Agricultural Land:
The petitioner contended that the SARFAESI Act should not apply as the secured asset was agricultural land, which is exempt under Section 31 of the Act. The court analyzed the mortgage deed and found that the land was described as "land" and not specifically as "agricultural land." The court emphasized that the petitioner himself described the land with structures on it, indicating it was not purely agricultural. The court also referenced the Andhra Pradesh Rights in Land and Pattadar Passbooks Act, 1971, which defines land capable of being used for agriculture, but not necessarily being used as such. The court concluded that the land in question did not qualify for the agricultural exemption under Section 31 of the SARFAESI Act.

3. Validity of the Actions Taken by the Advocate-Commissioner:
The petitioner alleged that the Advocate-Commissioner exceeded her authority by taking possession of the house property. The court reviewed the Advocate-Commissioner's affidavit and found that she identified and executed the warrant correctly. The court noted that the petitioner did not provide any contrary evidence or work order to limit the execution method. Additionally, the court found no credible material to prove that the house was in Survey No. 51/AA instead of Survey No. 51/EE. The court ruled that the Advocate-Commissioner acted within her lawful authority, and her actions could not be faulted.

Conclusion:
The court dismissed the writ petition, upholding the actions taken by the Respondents and the Advocate-Commissioner. The court found no merit in the petitioner's claims regarding the applicability of the SARFAESI Act to agricultural land and the alleged excess of authority by the Advocate-Commissioner. The petitioner was advised to seek remedies through appropriate legal channels.