R. Thillai Villalan Vs. the Government of Tamil Nadu Represented by the Commissioner and Secretary, Home Department and ors. - Court Judgment

Excerpt:
- securitisation & reconstruction of financial assets & enforcement of security interest act, 2002 [c.a. no. 54/2002]section 17; power of tribunal to impose condition relating to deposit for grant of stay of auction held, there is no specific provision made under section 17 of securitisation act or under any other provisions of the said act empowering the tribunal to pass any interim order. but under sub-section (12) of section 19 of the recovery of debts due to banks and financial institutions act, 1993, the tribunal has been empowered to pass various interim orders. if sub-section (7) of section 17 of securitisation act is read along with sub-section (12) of section 19 of recovery of debts due to bank is and financial institutions act, it would be clear that the tribunal also has jurisdiction to pass interim orders under section 17 of the securitisation act in appropriate cases. the tribunal is empowered to grant interim stay subject to such conditions as may be deemed proper including condition of deposit. even under section 69 of the transfer of property act, the only remedy of the borrower whose mortgage has invoked section 69 of the transfer of property act, is to file a civil suit and in such suit the court has power to grant injunction and to impose condition for the grant thereof--section 17; [a.p. shah c.j., f.m. ibrahim kalifulla & v. ramasubramanian, jj] proceedings under section 17 power of the tribunal to pass any interim order held, once the possession of the secured asset is taken, there would be no occasion for the tribunal to order redelivery of possession till final determination of the issue. in other words, it is only when the tribunal comes to the conclusion that any of the measures, referred to in section 13 (4) taken by the secured creditor are not in accordance with the provisions of the act and the rules made thereunder, then only the tribunal can restore possession of such secured assets to the borrower. by virtue of sub-section (7) of section 17 of the securitisation act read with section 19 (12) of the recovery of debts due to banks and financial institutions act the tribunal undoubtedly possess ancillary power to pass interim orders subject to the conditions as it may deems fit and proper to impose, but it does not in any way override the special provisions contained in section 17(3) of the securitisation act. the statutory scheme of the securitisation act is such that the borrower could take recourse to application under section 17 only if one or other measure is taken by the secured creditor, and the tribunal can restore the status quo ante only if it comes to the conclusion that any of the measure taken by the secured creditor is not in accordance with the provisions of the act. the scheme cannot be bypassed by issuing a mandatory order for redelivery of the possession before conclusion of the proceedings under section 17--sections 17, 13 (4); [a.p.shah, c.j., f.m. ibrahim kalifulia &v. ramasubramanian, jj] scope of enquiry under section 17 held, the main purpose of the securitisation act, and in particular section 13 thereof, is to enable and empower the secured creditors to take possession of their securities and to deal with them without the intervention of the court. therefore, in an application under section 17, the tribunal is concerned only with the validity of the acts of the secured creditor in taking possession of the securities and dealing with the same under section 13. all such grounds, which would render the action of the bank/financial institution illegal, can be raised before the tribunal in the proceedings under section 17. it is for the tribunal to decide in each case whether the action of the bank was in accordance with the provisions of the act and legally sustainable. however, while considering the question of validity of the action of the bank, it is not necessary for the tribunal to adjudicate the exact amount due to the secured creditors. in other words, the purpose of an application under section 17 is not the determination of the quantum of claim per se as the tribunal is concerned with the issue of the validity of the measures taken by the banks/financial institutions under section 13(4)--sections 17(4), 13(4) ; [a.p. shan c.j.,f.m.ibrahim kalifulla & v. ramasubramanian, jj] appeal right of bank held, the right of the bank is not automatically suspended upon filing of an appeal by borrower under section 17 of the securitisation act and the bank as secured creditor can proceed to auction secured asset where no stay is granted by the tribunal. there is nothing in section 17 of the securitisation act which would indicate that the legislature intended that there would be automatic stay of recovery proceedings by bank under section 13(4) on filing an appeal by borrower under section 17. use of the expressions if and then under section 17 would not mean that the bank can take one or more measures laid down under section 13(4) only if the tribunal declares that the action taken already is in accordance with the provisions of the securitisation act and the rules made thereunder. use of the word if does not connote a condition precedent. it is a recognised rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which they harmonized with the object of the statute and which effectuate the object of the legislature. the provisions of section 17 must, therefore, receive such construction at the hands of the court as would advance the object and at any event not thwart it. in other words, the principle of purposive interpretation should be applied while construing the said provisions. the securitisation act is enacted to provide a speedy and summary remedy for recovery of thousands of crores which were due to the banks and financial institutions. ordershivaraj patil, j.1. heard the petitioner at length. the petitioner in this petition has sought for the following prayer;.to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of a writ, directing the first respondent herein to take immediate and suitable steps to issue orders refraining the second respondent herein with respondents 3 and 4 herein from entering the border of tamil nadu or travel into the different parts or towns in tamil nadu till such period or extended period the injunction orders obtained by various political parties and persons before this hon'ble court restraining, publishing, marketing and making public by media or any other mode or method of the book titled 't.n. seshan - an intimate story' by the second respondent with the help of respondents 3 and 4, continue to be in force, to avoid unnecessary violence and creating law and order problem in the state of tamil nadu, and pass such other or further orders as this hon'ble may deem fit and proper...2. the petitioner is a former member of parliament, practising senior lawyer in the high court. in the detailed affidavit filed in support of the writ petition in paragraphs 3 to 6, he has stated how he was closely associated with the late leader dr. c.n. annadurai. in paragraphs 7 to 11, he has stated about the anti-hindi agitation or movement. in paragraphs 12 to 14, he has stated about certain remarks said to have been made against late leader dr. c.n. annadurai, in the book titled 'an intimate story'. in paragraphs 15 and 16 he has stated about the filing of the suit in respect of the said book and obtaining of orders of interim injunction. the other averments in the affidavit are with regard to the late leader and in what terms the people hold high respect and about the emotions of the people in regard to the said great person. as can be seen from the prayer made in the writ petition a mandamus is sought directing the first respondent to take immediate and suitable steps to issue orders refraining the second respondent herein with respondents 3 and 4 from entering the border of tamil nadu or travel into the different parts or towns in tamil nadu, till such period or extended period the injunction orders are obtained by various political parties.3. the petitioner submitted that this court can entertain a writ petition, having regard to the provisions of the constitution, viz., articles 14 and 19 read with article 21 of the constitution of india. petitioner in his argument paid glowing tributes to the late leader dr. c.n. annadurai and also submitted how intimately he was connected with him. he commented and criticised about certain remarks alleged to have been made in the book titled 'an intimate story' regarding which a few civil suits are already filed in this court, as stated by the petitioner himself. orders of interim injunction were also passed in the said suits, putting restraint on the release of the said book, which had run into the controversy with regard to certain passages said to have been made against the said leader. he contended that there is strong feeling in the minds of the people of tamil nadu against the second respondent with regard to the remarks made in the said book and that his entry into tamil nadu may lead to violence and law and order situation. in this view, there is every need for entertaining the writ petition and granting necessary interim injunction. petitioner further stated that this court has wide powers under article 226 of the constitution of india to grant such orders. in support of his submissions, he relied on the decision in the case gurbachan singh v. the state of bombay : 1952 crilj1147 . to contend that even an individual can be restrained from entering in a particular place. he finally submitted that in case the writ petition is not entertained and interim injunction as sought for by him is not granted, it may seriously affect the public interest.4. i have carefully considered the submissions made by the petitioner. the second respondent is the chief election commissioner, as can be seen from the description given in the writ petition itself and it is not disputed that the second respondent is a constitutional functionary and he has to discharge certain functions assigned to him under the constitution and in that regard he has jurisdiction throughout the territory of this country to move anywhere. under article 19(1) all citizens have the right to several freedoms enumerated therein and in particular and relevant to this case under article 19(1)(d) and (e) all citizens have the right to move freely throughout the territory of india. the second respondent being a citizen of india, having such a right guaranteed under article 19(1)(d) and (e), as already noticed above, is a constitutional functionary as well. any restraint on the movements of the second respondent may amount to putting restraint on the discharge of the constitutional functions of the second respondent. of course, these freedoms could be restricted or regulated in accordance with the law made by the competent legislatures, which is clear from the said article 19 itself. the decision cited by the petitioner relates to the validity of provisions relating to externment. in that case, the order fixing the place outside the state of bombay for residence came up for consideration. if there is a law, enabling the authorities to place restrictions on the second respondent, it could have been considered. looking at the scheme of article 19, it is very clear that all the citizens shall have the 'freedom' stated there and such freedom could be restricted by law, provided those restrictions are reasonable. this position of law is not debatable. as regards the emotional aspects and enraged feelings of the people of this state, i must state that the cause for the grievance seems to be about the reference made in the book, titled 'an intimate story,' regarding which i have already stated that it is a subject-matter of not one suit, but four suits and in those suits, there are orders of interim injunction and it is not for this court to express and it is for the appropriate court to deal with the matter. i would like to notice yet another aspect, viz., the prayer made in the writ petition is too wide, in that it is prayed that the first respondent should take immediate steps to refrain the second respondent alongwith respondents 3 and 4 from entering into the border of tamil nadu or travel into the different parts or towns of the state of tamil nadu. if there is a question of safety or law and order at all or as a result of his entry into this state, some problems are created, the competent authorities, whose duty it is to maintain law and order shall have to essentially take care of the same, as and when such situation arises. moreover, as on to-day, there are orders of interim injunction as stated above in regard to the release of the said book. further, it is not possible for this court to consider the case for granting any relief in such terms as prayed for by the petitioner in the writ petition.5. in this view, i do not find any good ground or justification to entertain this writ petition. accordingly, i reject the writ petition at the stage of admission.

Judgment:
ORDER

Shivaraj Patil, J.

1. Heard the petitioner at length. The petitioner in this petition has sought for the following prayer;.to issue a writ of Mandamus or any other appropriate writ, order or direction in the nature of a writ, directing the first respondent herein to take immediate and suitable steps to issue orders refraining the second respondent herein with respondents 3 and 4 herein from entering the border of Tamil Nadu or travel into the different parts or towns in Tamil Nadu till such period or extended period the injunction orders obtained by various political parties and persons before this Hon'ble Court restraining, publishing, marketing and making public by media or any other mode or method of the book titled 'T.N. Seshan - An Intimate Story' by the second respondent with the help of respondents 3 and 4, continue to be in force, to avoid unnecessary violence and creating law and order problem in the State of Tamil Nadu, and pass such other or further orders as this Hon'ble may deem fit and proper...

2. The petitioner is a former Member of Parliament, practising senior lawyer in the High Court. In the detailed affidavit filed in support of the writ petition in paragraphs 3 to 6, he has stated how he was closely associated with the late leader Dr. C.N. Annadurai. In paragraphs 7 to 11, he has stated about the Anti-Hindi agitation or movement. In paragraphs 12 to 14, he has stated about certain remarks said to have been made against late leader Dr. C.N. Annadurai, in the Book titled 'An Intimate Story'. In paragraphs 15 and 16 he has stated about the filing of the suit in respect of the said book and obtaining of orders of interim injunction. The other averments in the affidavit are with regard to the late leader and in what terms the people hold high respect and about the emotions of the people in regard to the said great person. As can be seen from the prayer made in the writ petition a mandamus is sought directing the first respondent to take immediate and suitable steps to issue orders refraining the second respondent herein with respondents 3 and 4 from entering the border of Tamil Nadu or travel into the different parts or towns in Tamil Nadu, till such period or extended period the injunction orders are obtained by various political parties.

3. The petitioner submitted that this Court can entertain a writ petition, having regard to the provisions of the Constitution, viz., Articles 14 and 19 read with Article 21 of the Constitution of India. Petitioner in his argument paid glowing tributes to the late leader Dr. C.N. Annadurai and also submitted how intimately he was connected with him. He commented and criticised about certain remarks alleged to have been made in the book titled 'An Intimate Story' regarding which a few civil suits are already filed in this Court, as stated by the petitioner himself. Orders of interim injunction were also passed in the said suits, putting restraint on the release of the said Book, which had run into the controversy with regard to certain passages said to have been made against the said leader. He contended that there is strong feeling in the minds of the people of Tamil Nadu against the second respondent with regard to the remarks made in the said book and that his entry into Tamil Nadu may lead to violence and law and order situation. In this view, there is every need for entertaining the writ petition and granting necessary interim injunction. Petitioner further stated that this Court has wide powers under Article 226 of the Constitution of India to grant such orders. In support of his submissions, he relied on the decision in the case Gurbachan Singh v. The State of Bombay : 1952 CriLJ1147 . to contend that even an individual can be restrained from entering in a particular place. He finally submitted that in case the writ petition is not entertained and interim injunction as sought for by him is not granted, it may seriously affect the public interest.

4. I have carefully considered the submissions made by the petitioner. The second respondent is the Chief Election Commissioner, as can be seen from the description given in the writ petition itself and it is not disputed that the second respondent is a Constitutional functionary and he has to discharge certain functions assigned to him under the Constitution and in that regard he has jurisdiction throughout the territory of this country to move anywhere. Under Article 19(1) all citizens have the right to several freedoms enumerated therein and in particular and relevant to this case under Article 19(1)(d) and (e) all citizens have the right to move freely throughout the territory of India. The second respondent being a citizen of India, having such a right guaranteed under Article 19(1)(d) and (e), as already noticed above, is a constitutional functionary as well. Any restraint on the movements of the second respondent may amount to putting restraint on the discharge of the constitutional functions of the second respondent. Of course, these freedoms could be restricted or regulated in accordance with the law made by the competent Legislatures, which is clear from the said Article 19 itself. The decision cited by the petitioner relates to the validity of provisions relating to externment. In that case, the order fixing the place outside the State of Bombay for residence came up for consideration. If there is a law, enabling the authorities to place restrictions on the second respondent, it could have been considered. Looking at the scheme of Article 19, it is very clear that all the citizens shall have the 'freedom' stated there and such freedom could be restricted by law, provided those restrictions are reasonable. This position of law is not debatable. As regards the emotional aspects and enraged feelings of the people of this State, I must state that the cause for the grievance seems to be about the reference made in the book, titled 'An Intimate Story,' regarding which I have already stated that it is a subject-matter of not one suit, but four suits and in those suits, there are orders of interim injunction and it is not for this Court to express and it is for the appropriate court to deal with the matter. I would like to notice yet another aspect, viz., the prayer made in the writ petition is too wide, in that it is prayed that the first respondent should take immediate steps to refrain the second respondent alongwith respondents 3 and 4 from entering into the border of Tamil Nadu or travel into the different parts or towns of the State of Tamil Nadu. If there is a question of safety or law and order at all or as a result of his entry into this State, some problems are created, the competent authorities, whose duty it is to maintain law and order shall have to essentially take care of the same, as and when such situation arises. Moreover, as on to-day, there are orders of interim injunction as stated above in regard to the release of the said book. Further, it is not possible for this Court to consider the case for granting any relief in such terms as prayed for by the petitioner in the writ petition.

5. In this view, I do not find any good ground or justification to entertain this writ petition. Accordingly, I reject the writ petition at the stage of admission.