Thaslim T.K vs Commissioner Of Police Kochi City, Marine Drive, Ernakulam, Pin 682011

Anu Sivaraman, J

This writ petition is filed seeking the following reliefs:-

“i)To issue a writ of mandamus or any other appropriate writ, order or direction commanding respondents 1 and 2 to grant adequate protection to carry out the work by the petitioner in the property covered by Ext.P2 without any obstruction or threat from 3rd and 4th respondents, their men, workers and assistants.

ii)To grant such other reliefs as this Hon’ble Court deems fit and proper in the facts and circumstances of the case.

iii) Dispense with filing of the translation of vernacular documents.”

Heard the learned counsel for the petitioner, the learned Government Pleader as well as the learned counsel appearing for respondents 3 and 4.

It is submitted by the learned counsel for the petitioner that the petitioner is the owner in possession of 5.5 Ares of property in Survey No.198/4 and 199/10A of Poonithura Village, which he obtained by Ext.P2 document executed by the Manager, Union Bank of India, Vytilla Branch. It is submitted that the petitioner was the successful bidder in the auction conducted by the bank and the sale was confirmed in the name of the petitioner. The entire sale consideration of Rs.1,27,80,000/- (Rupees One Crore Twenty Seven Lakhs and Eighty Thousand only) was deposited by the petitioner and the document was executed. Later, mutation was effected and Ext.P4 possession certificate was also issued to the petitioner. It is stated that while so, the power of attorney holder of the petitioner and certain workers went to the property for clearing the weeds and construction of a compound wall. Respondents 3 and 4, who were the previous owners, trespassed into the property and obstructed the work, pursuant to which Ext.P5 complaint was filed, which has not been considered.

A counter affidavit has been filed by respondents 3 and 4 contending that the property is recorded as ‘nilam' in the revenue records. It is admitted that the petitioner was the auction purchaser in the sale conducted after initiation of SARFAESI proceedings against the property in question. It is submitted that the 3rd and 4th respondents have filed securitization application against the alleged sale of the property, which is pending before the Debt Recovery Tribunal-I, Ernakulam as S.A.No.250 of 2022, where the writ petitioner is the 3rd respondent. It is submitted that the petitioner has no legal right in the properties and that the question of the legality of the proceedings taken by the bank is to be considered in the said SA. It is submitted that the bank had never taken possession of property and under Section 14 of the SARFAESI Act and that there can be no transfer of the property without possession being so taken. It is submitted that all issues including the sufficiency of the notice of sale are pending consideration before the Debt Recovery Tribunal and that an order of Police protection to enter into the property and to make constructions thereon without any permissions being granted by the competent local authority is totally misconceived and such directions cannot be granted. It is further submitted that property in question is a paddy land and that no construction is possible there.

A reply affidavit has been filed by the petitioner wherein it is stated that the bank had taken possession of secured asset as per order in MC No.389 of 2019 before the Additional Chief Judicial Magistrate’s Court Ernakulam and that the MC was closed recording the said fact on 24.09.2019. It is further contended that the petitioner has submitted necessary applications for conversion of the property and no such conversion will be carried out without obtaining orders from the competent authority. It is submitted that in any view of the matter the 3rd and 4th respondent have no right to obstruct the petitioner in the light of the sale already effected and concluded in favour of the petitioner.

The learned Government Pleader submits, on instructions, that the parties had been summoned pursuant to the complaints received from the petitioner and it was apprised that there is SA pending before the DRT. However, the contesting party respondents had been told not to create any law and order situation and that there is no such situation at present.

I have considered the contentions advanced. It is clear that the property which was secured asset in terms of the provisions of the SARFAESI Act had been taken over and later sold by the bank and Ext.P2 document was executed in favour of the petitioner. Though it is contended that an SA has been filed challenging the said sale, it is clear that there is no interdictory order in the said SA as at present.

Since, the petitioner has not produced any orders permitting the use of the paddy land for other purposes or any permissions granted by the competent local authority for construction of any nature in the said property, I am of the opinion that those issues cannot be considered in this writ petition. However, in view of the fact that the property at present stands registered in the name of the petitioner and since mutation also has been effected, the respondents cannot seek to physically obstruct the petitioner, who is the registered owner of the property, from entering his property or carrying out any legally permissible activities therein, without obtaining interdictory orders from the tribunal where the matter is now said to be pending.

In the result, the complaint raised by the petitioner with regard to obstruction from respondents No.3 and 4 to the enjoyment of the property is liable to be considered by the Station House Officer and appropriate protection is liable to be granted. However, it is made clear that the petitioner shall carry out conversion of the property and constructions thereon only after obtaining due permissions from the competent authorities and that no protection is to be granted in terms of this order for such activities unless the permissions are obtained in accordance with law. Further, the direction to grant protection for the enjoyment of property will be subject to orders, if any, to be passed by the DRT in S.A.No.250 of 2022 also. All other contentions of the parties are left open.

Writ petition is ordered accordingly.