Regard being had to the similitude in the controversy involved in the present cases, the writ petitions were analogously heard and by a common order, they are being disposed of by this Court. Facts of Writ Petition No.4041/2013 are narrated hereunder. In the present case, short point is involved whether under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short SARFAESI Act, 2002), the Chief Judicial Magistrate is competent to take action keeping in view the Section 14 of the SARFAESI Act, 2002.
Learned Government Advocate at the outset has drawn attention of this Court towards the judgment delivered by the Full Bench of Madras High Court in case of K. Arockiyaraj V. Chief Judicial Magistrate, Srivilliputhur and Anr., reported in AIR 2013 MADRAS 206. Paragraph Nos.24, 25, 26 and 27 of the aforesaid judgment read as under:-
24. 'The Executive Magistrate' is mentioned in Section 20, which reads as follows:
"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 the 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.
(4-A) 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."
The local jurisdiction of the Executive Magistrate is mentioned in Section 22.
25. On a perusal of the above referred provisions of the Code of Criminal Procedure, Chief Metropolitan Magistrate, Chief Judicial Magistrate and District Magistrate are separately dealt with and only for the purpose of convenience, the High Court is empowered to appoint the Chief Judicial Magistrate to perform the functions akin to Chief Metropolitan Magistrate in metropolitan areas, which includes judicial functions and administrative functions. When Cr.P.C. itself is dealing with District Magistrates and their jurisdiction, the phraseology used in section 14(1) should be given its true meaning without any assistance from the Criminal Procedure Code, particularly in the light of section 35 read with Section 2(2) of the SARFAESI Act, 2002.
26. Section 14 of the Act is very clear and unambiguous. It states that the Chief Metropolitan Magistrate or the District Magistrate can assist the secured creditors in taking possession of the secured assets. It means, in metropolitan areas, the secured creditors can approach either the Chief Metropolitan Magistrate or the District Magistrate and in non-metropolitan areas, where there is no Chief Metropolitan Magistrate, the secured creditors can seek the assistance of the District Magistrate alone, as no power is vested on the Chief Judicial Magistrate to give assistance to the secured creditors in non-metropolitan areas. There is no omission in the said section as contended by the learned Senior Counsel for the respondents. If there is no authority mentioned to assist the secured creditor in non-metropolitan areas, the secured creditors may be justified in contending that in case of omission, the meaning given in Cr.P.C. can be imported for the effective implementation of the SARFAESI Act. The said situation being not there, the learned Senior Counsel for the respondent is not justified in contending that wherever there is no Chief Metropolitan Magistrate, the Chief Judicial Magistrate will automatically get the powers to assist the secured creditors. If such an interpretation is accepted, the phraseology used in section 14 that Chief Metropolitan Magistrate or District Magistrate will have no meaning.
27. It is a well settled principle of law that while interpreting the words used in a legislation or parliamentary enactment, the intention of the legislature is to be borne-in- mind. The Act was enacted in the year 2002. The legislature was aware of the fact that in non-metropolitan areas, the Chief Judicial Magistrates function like Chief Metropolitan Magistrates in Metropolitan areas. If the intention of the Parliament is to confer power to the Chief Judicial Magistrate in non- metropolitan areas also, the same should have been specifically stated in section 14 itself. The legislature purposely not included the Chief Judicial Magistrate in section 14 to give assistance to the secured creditors in non- metropolitan areas. The said view was taken by the Aurangabad Bench of the Bombay High Court in the decision reported in CDJ 2008 BHC 520. Section 14(1) clearly states that Chief Metropolitan Magistrate or District Magistrate may on such request being made to assist taking of possession of such assets and documents to the secured creditors, which the secured creditor is entitled to take possession, referable to section 13(4). In the said judgment it is held that the legislature does not seem to have entrusted the functions to the Chief Judicial Magistrate in non- Metropolitan Areas, although such function has been entrusted to the Chief Metropolitan Magistrate, a Judicial Officer in metropolitan areas.
The Full Bench after taking care of statutory provisions as contained under Section 14 of the SARFAESI Act, 2002, has held that the Chief Judicial Magistrate, who is a judicial officer does not have powers under the Act, 2002 to assist secured creditors in taking possession of the secured assets. Therefore, in light of the judgment delivered by the Full Bench in the aforesaid case and also after careful consideration of Section 14, it can safely be gathered that the Chief Judicial Magistrate, who is judicial officer does not have the powers to assist the secured creditors in taking possession of secured assets. Resultantly, the writ petition is allowed. The impugned order passed by the Chief Judicial Magistrate in the aforesaid cases are hereby set aside. However, respondent- banking company shall be at a liberty to approach the District Magistrate as provided under Section 14 of the SARFAESI Act. 2002.
With the aforesaid, the writ petition stands allowed.