2013 Supreme(Guj) 149

GUJARAT HIGH COURT
Hon’ble Mr. Chief Justice Bhaskar Bhattacharya & Hon’ble Mr. Justice J.B. Pardiwala
Manjudevi R. Somani
Versus
Union of India & Ors.
Special Civil Application No. 10556 of 2012—Decided on 22/04/2013

Point in Issue :
Whether Addl. Chief Metropolitan Magistrate has jurisdiction to pass impugned order under Section 14 of the Act.

Headnote:Securitisation and Reconstruction of Financial and Enforcement of Security Interest Act, 2002 (Central Act 54 of 2002) —Sections 13(4), 14, 17(2) — Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Section 19(3) — Order by Additional Chief Metropolitan Magistrate Ahmedabad directing local police to assist the secured creditor to take over possession of secured assets mortgaged — Jurisdiction — Contention that under the provision of the Act the Chief Metropolitan Magistrate or the District Magistrate is authorised and matter could not have been transferred to Additional C.M. to deal with by Chief Metropolitan Magistrate — Finding as to — The SARFAESI Act, 2002 by virtue of Section 14 vest powers to give possession under the circumstances mentioned in Section with Chief Metropolitan Magistrate and said Section does not refer to Addl. Chief Metropolitan Magistrate — Chief Metropolitan Magistrate was, therefore, not authorised to transfer the matter to Addl. Chief Metropolitan Magistrate — He has no authority to pass the impugned order — So far availability of alternate remedy of filing an appeal under the Act could operate as bar to exercise of power by High Court under Article 226 of Constitution — In the circumstances the impugned order passed by Addl. Chief Metropolitan Magistrate being without jurisdiction it is set aside.

       Held :

       The SARFAESI Act was passed in the year 2002, and by virtue of Section 14 of the Act, the Chief Metropolitan Magistrates are vested with the powers to give possession under the circumstances mentioned in the said Section. The said Section does not refer to Additional Chief Metropolitan Magistrates, whereas in the case before Court, it is the Additional Chief Metropolitan Magistrate, Ahmedabad, who has passed the order for facilitating handing over the possession with the help of the local police. [Para 25]

       In such circumstances the Chief Metropolitan Magistrate, Ahmedabad, by virtue of his authority under Section 19, Clause (3) of the Code of Criminal Procedure, 1973 could not have entrusted the Additional Chief Metropolitan Magistrate with his own determination and the allocation of business to an Additional Metropolitan Magistrate must be in tune with the jurisdiction conferred upon him by the High Court in exercise of powers under Section 17, Clause (2) of the Act. It is a well settled position of law that special orders to be made by the Chief Metropolitan Magistrate as to “distribution of business” must be consistent with the Code. Unless an Additional Chief Metropolitan Magistrate was expressly conferred the power by way of a notification to entertain an application under Section 14 of the SARFAESI Act, 2002, he would have no jurisdiction to deal with such a proceeding.

        [Para 27]

       The learned Counsel appearing for the bank strenuously tried to convince us that Court should not entertain this petition and relegate the petitioner to avail the alternative remedy of filing an appeal under Section 17 of the SARFAESI Act, 2002 before the Debts Recovery Tribunal, however, Court is not impressed by such submission of Mr. Jani. It is true that power of the High Court to issue prerogative writs under Article 226 of the Constitution of India is plenary in nature and cannot be curtailed by other provisions of the Constitution of India or a statute but the High Courts have imposed upon themselves certain restrictions on the exercise of such power. One of such restrictions is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction under Article 226 of the Constitution of India. But again, this rule of exclusion of writ jurisdiction on account of availability of an alternative remedy does not operate as an absolute bar to entertain a writ petition but is a discretion to be exercised depending on the facts of each case. [Para 28]

       Law Laid Down :

       Allocation of business to an Addl. Metropolitan Magistrate by Chief Metropolitan Magistrate must be in time with jurisdiction conferred upon him by High Court.