IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE FRIDAY, THE 1ST DAY OF JULY 2016/10TH ASHADHA, [SECTION]38 WP(C).No. 27669 of 2015 (G) PETITIONER(S): DARLY SHAJAN, AGED 48 YEARS, W/O. SHAJAN, PADAYATTIL HOUSE, ANGAMALY KARA, ANGAMALY VILLAGE, ALUVA TALUK. BY ADVS.SRI.M.RAMESH CHANDER (SR.) SMT.P.I.SHAMLATH RESPONDENT(S): 1. SHAJAN THOMAS AGED 51 YEARS, S/O.(LATE)THOMAS, PADAYATTIL HOUSE, ANGAMALI KARA, ANGAMALI VILLAGE, ALUVA TALUK. 683 572. 2. SHANTU THOMAS AGED 47 YEARS, S/O.(LATE)THOMAS, PADAYATTIL HOUSE, ANGAMALI KARA, ANGAMALI VILLAGE, ALUVA TALUK. 683 572. 3. WILSON @ SHIBU S/O.(LATE) THOMAS, AGED 41 YEARS, PADAYATTIL HOUSE, ANGAMALI KARA, ANGAMALI VILLAGE, ALUVA TALUK. 683 572. 4. THE AUTHORIZED OFFICER DEWAN HOUSING FINANCE CORPORATION LTD. (DHFL), K.M.M. BUILDING, 1ST FLOOR, PALARIVATTOM, COCHIN 682 025. 5. JINIMOL P.M. THE ADVOCATE COMMISSIONER, ADVOCATE, ERNAKULAM DISTRICT COURT BAR ASSOCIATION, ERNAKULAM - 682 031. R4 BY ADV. SRI.P.PAULOCHAN ANTONY R4 BY ADV. SRI.G.AJITH KUMAR R1 BY ADV. SRI.PRASAD CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27669 of 2015 (G) APPENDIX PETITIONER(S)' EXHIBITS EXT. P1 - THE TRUE COPY OF THE M.C.NO.45/2015 PENDING BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ANGAMALI. EXT. P2 - THE TRUE COPY OF THE INTERIM ORDER IN CMP 1060/2015 DATED 7TH AUGUST 2015 RESPONDENT(S)' EXHIBITS NIL /TRUE COPY/ P.A. TO JUDGE sou. A.M. SHAFFIQUE, J - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 27669 of 2015 - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of July, 2016 JUDGMENT
This writ petition is filed seeking for a direction to the respondents 4 and 5 not to dispossess the petitioners from the building situated in R.S. No.95/7, Block No.12 of Angamali Village. This writ petition is filed by the petitioner inter alia contending that she being the wife of the 1st respondent and sister in law of respondents 2 and 3 have filed an application before the Judicial Magistrate of First Class, Angamali under the [ACT]. As per order dated 07.08.2015 in [CASE NUMBER] in [CASE NUMBER] which is produced as Ext.P2, the learned Magistrate had restrained the respondents from ousting the petitioner from the shared house.
2. Petitioner submits that she had been residing in the aforesaid building in RS No.95/7, Block No.12 of Angamali Village since [SECTION]91. Now that steps are being taken by respondents 4 and 5 under the [ACT], this writ petition is filed apprehending that she will be dispossessed from the property.
3. Learned Senior Counsel appearing for the petitioner submits on the basis of [SECTION] of the [ACT] that the [ACT] is in addition to and not in derogation with the [ACT]. In so far as special right has been conferred to persons like the petitioner under the [ACT], no steps can be taken by the secured creditor under the [ACT] to evict the petitioner unless orders are modified by the Court granting right of residence. Reference is also made to the judgment of the Apex Court in [ENTITY] N. Kalsaria V. Bank of India [2016 (1) KLT 623 (SC)] wherein the Apex Court had occasion to consider the scope and effect of [SECTION] of the [ACT]. After referring to [SECTION] of the [ACT] it is held in paragraph 30 as under:
"30. It is a settled position of law that once tenancy is created, a tenant can be evicted only after following the due process of law, as prescribed under the provisions of the [ACT]. A tenant cannot be arbitrarily evicted by using the provisions of the [ACT] as that would amount to stultifying the statutory rights of protection given to the tenant. A non obstante clause ([SECTION] of the [ACT]) cannot be used to bulldoze the statutory rights vested on the tenants under the [ACT]. The expression 'any other law for the time being in force' as appearing in [SECTION] of the [ACT] cannot mean to extend to each and every law enacted by the Central and State legislatures. It can only extend to the laws operating in the same field. Interpreting the non obstante clause of the [ACT], a three Judge Bench of this Court in case of [PRECEDENT]. [PRECEDENT] has held as under :
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4. The Apex Court held that the right of tenants should be protected who are in occupation of a building which was a secured asset. On the other hand, learned counsel appearing for respondents 4 and 5 placed reliance on the judgment of this Court in [PRECEDENT], wherein the learned Single Judge of this Court held in the light of [SECTION] and [SECTION] of the [ACT] that protection under the Act can be given even by providing alternate accommodation. It is further contended that the property was originally mortgaged by the father-in-law of the petitioner and not by the husband of the petitioner and therefore, it is apparent that it is not a shared property as far as the petitioner is concerned. Father-in-law died and property is succeeded to the legal heirs. It is contended that the legal heirs' right is only subject to mortgage.
5. There cannot be any dispute regarding the right of the Bank to proceed under the [ACT] is concerned. The only issue is with reference to the restriction over the said right on account of an order being passed by Magistrate under the [ACT].
6. True that the Apex Court has interpreted [SECTION] of the Act in an instance relating to the consideration of right of tenants. The interpretation of [SECTION] cannot be doubted at all. But that is not the sole situation in the present case. This is a case in which a person claims right of residence in respect of a household which has been mortgaged in favour of respondents 4 and 5. The right to residence is available only until the person against whom the order is passed has a right over a property and the moment that right extinguishes by a statutory format under the [ACT], further right cannot be claimed by any person who claims such a right under the [ACT] or any other statutory right as the case may be. The right of tenants of course has been protected by judgments of Apex Court in [PRECEDENT]] and which is clarified in [ENTITY]'s case (supra).
7. As far as the case on hand is concerned, I am of the view that [ACT] is a special procedure by which, without intervention of Court or Tribunal, the secured creditor is entitled to proceed against the secured asset. [SECTION] relates to several measures which are basically taken by authorised person of the Bank, which includes taking possession of the property. In the present case the learned Chief Judicial Magistrate has already issued a direction by appointing an Advocate Commissioner to take possession of the premises. It is also stated by learned counsel for respondents 4 and 5 that possession has been taken except the household in question.
8. Be that as it may, when a right has been conferred on the Bank to take possession through a process known to law, I do not think that the order passed by learned Magistrate by way of Ext.P2 will stand in the way of respondents 4 and 5 to exercise their statutory right.
9. In other words, an order passed under the [ACT] cannot overcome the right of the second creditor to take possession under the [ACT]. The right of the petitioner ceases the moment the right of the mortgagor is taken over by the Bank under the Statute.
There is no merit in the above writ petition and the same is dismissed.
[ENTITY] Judge ttb/04/07