Kerala High Court
K.V.Prakashan vs A.A.Kumaran on 8 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 8TH DAY OF JUNE 2022 / 18TH JYAISHTA, 1944
WA NO. 611 OF 2022
AGAINST THE JUDGMENT IN WP(C) 5875/2022 OF HIGH COURT OF
KERALA
APPELLANTS/RESPONDENTS 4 & 5 IN WPC:
1 K.V.PRAKASHAN, AGED 55 YEARS,
S/O VASU, KADAMPUZHA HOUSE, VALLACHIRA P.O.,
TRISSUR DISTRICT, PIN-680 512.
2 BINDU PRAKASHAN,
S/O VASU, KADAMPUZHA HOUSE, VALLACHIRA P.O.,
TRISSUR DISTRICT, PIN-680 512.
BY ADVS.
P.CHANDRASEKHAR
C.S.ULLAS
MANJARI G.B.
RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 3 IN WPC:
1 A.A.KUMARAN,
AGED 65 YEARS,
S/O AYYAPPAN, ATTUPURATH HOUSE, PERUMPILLISSERY,
CHEVOOR, TRISSUR DISTRICT-680 561.
2 SUPERINTENDENT OF POLICE,
OFFICE OF THE SUPERINTENDANT OF POLICE,
TRISSUR-680 022.
3 THE SUB INSPECTOR OF POLICE,
CHERPU POLICE STATION, TRISSUR RURAL,
TRIPRAYAR ROAD, TRISSUR-680 561.
W.A. (Civil) No.611 of 2022 -: 2 :-
4 THE STATE BANK OF INDIA,
URAKAM BRANCH, TRISSUR, PIN-680 512,
REPRESENTED BY ITS AUTHORIZED OFFICER.
OTHER PRESENT:
BY GOVERNMENT PLEADER SMT.REKHA.C.NAIR
BY S.EASWARAN, STANDING COUNSEL
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
08.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A. (Civil) No.611 of 2022 -: 3 :-
P.B.SURESH KUMAR & C.S.SUDHA, JJ.
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Writ Appeal (Civil) No.611 of 2022
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Dated this the 8th day of June, 2022
JUDGMENT
P.B.Suresh Kumar, J.
This writ appeal is directed against the judgment
dated 18.05.2022 in W.P.(C) No.5875 of 2022. The appellants
are respondents 4 and 5 in the writ petition. Parties and
documents are referred to in this judgment for convenience, as
they appear in the writ petition.
2. Petitioner is the auction purchaser of an item
of immovable property over which security interest was
created for a loan availed by respondents 4 and 5 from the
third respondent Bank. Consequent to default in repayment of
the loan, proceedings have been initiated by the third
respondent for enforcement of security interest in terms of the
provisions of the Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002 (the Act)
and in the said proceedings, on 13.03.2018, possession of the
property was taken over and handed over to the authorised
officer of the Bank by the Advocate Commissioner appointed
by the concerned Chief Judicial Magistrate under Section 14 of
the Act. Thereafter, in compliance with the provisions of the
Act, sale of the property was held and the possession was
handed over to the petitioner who became the successful
bidder in the auction sale, after issuing a sale certificate to
him. On the strength of the sale certificate, the petitioner has
effected transfer of registry of the property in his name and
has also remitted the basic tax.
3. The case set out by the petitioner in the writ
petition is that on 22.1.2022, respondents 4 and 5, who were
the borrowers, forcibly trespassed into the property, broke
open the doors of the building therein and took forcible
possession of the property. The petitioner, in the
circumstances, sought protection from police for his life and
property on the ground that after respondents 4 and 5 were
physically dispossessed from the property in accordance with
the provisions of the Act, they cannot take forcible possession
of the property using their might. Since the petitioner was not
afforded the protection sought by him, he instituted the writ
petition for a direction to the police to take necessary steps to
remove respondents 4 and 5 from the property and grant him
protection for his life and property.
4. A counter affidavit has been filed by the Bank
contending, among others, that the sale of the property
effected in favour of the petitioner has become final, although
respondents 4 and 5 have challenged the possession notice
issued earlier in S.A. No.175 of 2018 before the Debts
Recovery Tribunal. It was also contended by the Bank in the
counter affidavit that since there existed a residential building
in the property, the Advocate Commissioner was permitted by
the Chief Judicial Magistrate in exercise of his power under
Section 14 of the Act to break open the building and it is after
breaking open the building in the property that the possession
has been handed over by the Advocate Commissioner to the
authorised officer of the Bank.
5. Respondents 4 and 5 filed a counter affidavit
in the matter contending, among others, that physical
possession of the property was not available with the Bank
when they effected sale of the property as they had not ceased
to occupy the building and that the possession taken by the
Advocate Commissioner was only symbolic.
6. It is seen that the main contention put forward
by respondents 4 and 5 in the writ petition was that the
remedy of the petitioner, if any, in a case of this nature is to
move the civil court for appropriate relief and that the
petitioner is not entitled to invoke the public law remedy under
Article 226 of the Constitution for redressal of his grievance.
The learned Single Judge found that respondents 4 and 5 were
physically dispossessed from the property on 13.03.2018 by
the Advocate Commissioner appointed under Section 14 of the
Act. The learned Single Judge has also found that in a case of
this nature, the petitioner is justified in invoking the public law
remedy under Article 226. Accordingly, the writ petition was
allowed directing the police to take immediate steps to remove
respondents 4 and 5 from the property, if necessary by use of
force and hand over the same to the petitioner, apart from
granting police protection to the life and property of the
petitioner. Respondents 4 and 5 are aggrieved by the said
decision of the learned Single Judge.
7. Heard the learned counsel for the appellants,
respondents 4 and 5.
8. The learned counsel for the appellants
contended that the question as to whether respondents 4 and
5 have trespassed into the subject property is a question of
fact to be decided in an appropriate forum and not in a
proceedings under Article 226. It was also contended by the
learned counsel that the police cannot be directed to remove
anyone from any property, that too, using force. It was
asserted by the learned counsel that the building in the
property was not the subject matter of the application under
Section 14 of the Act and respondents 4 and 5 were neither
evicted from the building by the Advocate Commissioner nor
was the building handed over to the authorised officer of the
Bank. It was also the submission of the learned counsel that
the movables of respondents 4 and 5 are still kept in the
building and they are very much in occupation of the building.
The learned counsel has relied on several judgments of the
Apex Court as also this Court in support of the general
propositions argued by him.
9. We have considered the arguments advanced
by the learned counsel for the appellants.
10. The essence of the arguments advanced by
the learned counsel for the appellants as regards the merits of
the matter is that the building in the property was not the
subject matter of the application under Section 14 of the Act
and that respondents 4 and 5 have not been evicted from the
building by the Advocate Commissioner appointed under
Section 14 of the Act. As noted, physical possession of the
property in the case was taken over by the Advocate
Commissioner on 13.03.2018. The fact that respondents 4 and
5 have been physically dispossessed from the property is not
disputed by them. Their case is only that the building in the
property was not the subject matter of the proceedings under
Section 14 of the Act and they were not evicted from the
building and therefore, there was no occasion for them to
trespass into the building. It is seen from the materials on
record that in the affidavit filed by the fourth respondent in
S.A.No.175 of 2018 on 26.03.2018 which is part of the records
in the writ petition as Ext.R3(h), it has been categorically
admitted by respondents 4 and 5 that they were not only
evicted from the property but also from the building therein
with police aid. The relevant portion of the said affidavit reads
thus:
"The 1st defendant had approached the Chief Judicial
Magistrate, Thrissur and filed a petition under section 14 of
the Securitisation & Reconstruction of Financial Assets &
Enforcement of Security Interest Act, 2002, to direct the
Commissioner to take possession of the scheduled properties.
Thereupon, after serving the Annexure-VII notice for
dispossession, the respondents along with the Advocate
Commissioner and Police on 13-3-2018 at 8.30 am took
possession of the scheduled property and Building and
petitioners were ousted even without preparing an inventory
and all household articles, utensils, furniture and Gold
ornaments, Household electronic items, Fridge, A/C's, T.V. and
other electronic items, Tools and machinery, Gas cylinder and
kitchen appliances, dresses, Livestock, domestic animals were
not allowed to taken (sic.) any above mentioned items."
True, it is stated in the extracted affidavit that the Advocate
Commissioner did not prepare an inventory of the various
movables in the building when respondents 4 and 5 were
ousted from the building and they were not allowed to remove
the same. Be that as it may, in the light of the said affidavit,
the contention now advanced by respondents 4 and 5 that
they were not evicted from the building and they continued to
occupy the building is one taken with mischievous intentions
and without any bonafides. In other words, the case of the
petitioner that on 22.1.2022, respondents 4 and 5 have forcibly
trespassed into the property, broke open the doors of the
building and took forcible possession of the property is to be
accepted as correct.
11. Rule of law is one of the basic features of our
Constitution which pervade the whole constitutional fabric. In
other words, the constitutional scheme is that it is for the law
to rule and even the guardians of the law are to obey the law.
It is said that wherever law ends, tyranny begins. It is having
regard to the said principles, the courts have held that as a
sentinel on the qui vive, in appropriate cases, this Court can
certainly direct the police force of the State to use its force to
restore possession of the property which the true owner has
been wrongfully deprived of. As noted, the petitioner obtained
possession of the property in terms of the provisions of the Act
and if anyone dispossess the petitioner from such a property,
we have no doubt in our mind that it is an exceptional case
where this court has to direct the police force of the State to
restore possession of the property which the true owner has
been deprived of, by use of force, if required.
12. The contention advanced by the learned
counsel for respondents 4 and 5 that the question whether
respondents 4 and 5 have trespassed into the subject property
is a question of fact to be decided in an appropriate forum and
not in a proceedings under Article 226 is mischievous in as
much as they themselves have admitted in Ext.R3(h) affidavit
that they have been ousted not only from the property but also
from the building therein. Even assuming that the building in
the property was not the subject matter of the application
under Section 14 of the Act, we do not think that if
respondents 4 and 5 were evicted from the building, they can
trespass into the property by taking law into their hands.
Similarly, if as a matter of fact, the Advocate Commissioner
has not permitted respondents 4 and 5 to remove their
movables when they were dispossessed from the property,
they should have approached the appropriate forum for the
said grievance and the alleged conduct cannot be justified on
that ground.
In the said view of the matter, we do not find any
merit in the writ appeal and the same is, accordingly,
dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
C.S.SUDHA, JUDGE.
ds
