(01.04.2021)

Per : Prakash Shrivastava, J.

This petition has been filed by the petitioner aggrieved with the order

dated 16.02.2021 passed by the Additional District Magistrate under Section

14 of the the Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 (in short ‘the Act’).

2.

A preliminary objection has been raised in respect of availability of

alternate remedy of appeal.

3.

Submission of learned counsel for the petitioner is that against such an

order the remedy of appeal under Section 17 of the Act is not available and

that the power under Section 14 can be exercised only by the District

Magistrate and not the Additional District Magistrate.

4.

I have heard the learned counsel for the parties and perused the

record.

5.

The issue relating to the jurisdiction of the Additional District

Magistrate to pass an order under Section 14 of the Act needs consideration

by this Court because if the Additional District Magistrate had no

jurisdiction to pass the impugned order then the availability of alternative

remedy of appeal will not come in the way of the petitioner from

approaching this Court.

6.

Section 14 of the Act gives the power to Chief Metropolitan

Magistrate or District Magistrate to assist secured creditor in taking

possession of secured asset. The term “District Magistrate” has not been

defined under the Act. Section 37 of the Act makes it clear that the

application of other laws is not barred and provides as under :-

“37. Application of other laws not barred.—The

provisions of this Act or the rules made thereunder shall

be in addition to, and not in derogation of, the Companies

Act, 1956 (1 of 1956), the Securities Contracts

(Regulation) Act, 1956 (42 of 1956), the Securities and

Exchange Board of India Act 1992 (15 of 1992), the

Recovery of Debts Due to Banks and Financial

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Institutions Act, 1993 (51 of 1993) or any other law for

the time being in force.”

7.

The term “District Magistrate” has been defined under Section 20 of

the Cr.P.C., which reads as under :-

“20. Executive Magistrates.

(1)

In every district and in every metropolitan area,

the State Government may appoint as many persons as it

thinks fit to be Executive Magistrates and shall appoint

one of them to be the District Magistrate.

(2)

The State Government may appoint any Executive

Magistrate to be an Additional District Magistrate, and

such Magistrate shall have such of the powers of a

District Magistrate under this Code or under any other

law for the time being in force, as may be directed by the

State Government.

(3)

Whenever, in consequence of the office of a

District Magistrate becoming vacant, any officer

succeeds temporarily to the executive administration of

the district, such officer shall, pending the orders of he

State Government, exercise all the powers and perform

all the duties respectively conferred and imposed by this

Code on the District Magistrate.

(4)

The State Government may place an Executive

Magistrate in charge of a sub- division and may relieve

him of the charge as occasion requires; and the

Magistrate so placed in charge of a sub- division shall be

called the Sub- divisional Magistrate.

[(4A) The State Government may, by general or special

order and subject to such control and directions as it may

deem fit to impose, delegate its powers under sub-section

(4) to the District Magistrate.

(5)

Nothing in this section shall preclude the State

Government from conferring, under any law for the time

being in force, on a Commissioner of Police, all or any of

the powers of an Executive Magistrate in relation to a

metropolitan area.”

8.

A District Magistrate while passing an order under Section 14 of the

Act, exercises only administrative or executive function. Section 20 of the

Cr.P.C. makes it clear that the Additional District Magistrate also exercises

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the same power as are exercisable by the District Magistrate as per the

direction of the State Government.