# M/s Husain Stone Crusher & Anr v. State of U.P. & Ors

- **Citation:** WRIT-C No. 30320 of 2019
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-22
- **Case number:** WRIT-C No. 30320 of 2019
- **Bench:** Pankaj Mithal, Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-husain-stone-crusher-anr-v-state-of-u-p-ors-46240
- **Pages:** 11

## Headnote

Law-
The
Securitisation
and
Reconstruction of Financial Assets and
Enforcement of Securities Interest Act,
2002 - Section 14 - Functions of District
Magistrate on the issue of taking Possession -
Two distinct jobs have to be performed by the
District Magistrate - The first is to pass a
suitable order for the purpose of taking
possession of the secured assets; and second is
to take possession of such assets and the
documents and to forward them to the secured
creditor which job can be authorized by him to
be performed by any officer subordinate to him
also - The job of passing the order for the
purpose of possession has to be performed by
the District Magistrate himself whereas the job
of taking possession can be delegated by him to
any subordinate officer. (Para 10 and 11)
B. Interpretation of Statute - Delegatus Non
Potest Delegair - Meaning - Application to the
Enactment - Delegate has no power to delegate
i.e. a distinction conferred by Statute on any
authority is intended to be exercised by that
authority only and not by any other unless the
contrary intention is expressed in the Statute
itself - District Magistrate is persona designeta,
that is a person as an individual upon whom the
power to pass an order of possession of the
secured assets has been conferred exclusively -
In the absence of any intention conferring any
authority upon the District Magistrate to
delegate the aforesaid power to any other
person, officer or authority, the power to pass
an order of possession the Act has to be
exercised by the District Magistrate and none
else. (Para 13, 14 and 15)
C. Criminal Law-S.R.F.A.E.S.I. Act, 2002 -
Section 14 - Criminal Procedure Code -
Section 20 - Power of Additional District
Magistrate - Since Additional District Magistrate
is empowered to exercise the powers of the
District Magistrate under the Code or any other
law in force, the order passed by him under
Section 14 of the Securitization Act is not
without jurisdiction - The application moved
under Section 14 can be considered even by the
Additional District Magistrate provided he is
directed by the State Government to perform
the said powers under the Securitization Act in
accordance with Section 20(2) of the Code.
(Para 32 and 39)
Writ Petition dismissed (E-1)
Cases relied on :-

## Text

3-5 All. M/s Husain Stone Crusher & Anr. Vs. State of U.P. & Ors.
1875
psychiatrists,
students
and
other
stakeholders;

III.
University
Grants
Commission will aid the above process by
providing the necessary support to the
University to create, standardize and
effectuate the reform, self development and
rehabilitation programme in the university;

IV. The Secretary, Ministry of
Human
Resource
Development,
Government of India, New Delhi, shall also
provide the necessary support to create
infrastructure in the University to effectuate
the
reform,
self
development
and
rehabilitation programme in the University,
in light of this judgment and as per law;

V. The reform, self development
and rehabilitation programmes shall be
processed as per law, and integrated into
the existing legal/statutory framework, of
the University dealing with deviant conduct
and punishments;

VI. The case of petitioner for
admission
to M.A.
course
shall
be
considered after the creation of the reform,
self
development
and
rehabilitation
programme;

VII. In case the petitioner is
found eligible for admission to M.A.
course, he shall be permitted to pursue the
M.A. course along with the reform, self
development and rehabilitation programme
in the University;

VIII. It shall be open to the
BHU to impose necessary restraints, as it
deems fit, upon the petitioner even as he
pursues his academic course along with
the
reform,
self
development
and
rehabilitation programme;

IX.
The
exercise
shall
be
completed, preferably, within six months,
but not later than 12 months. At all times
the respondents keeping in mind the best
interests of the students and the society,
shall make all efforts to expedite the
compliance of the directions;

X. It shall be open to the
respondents to create a scheme for reform,
self development and rehabilitation for
convicts in criminal cases who wish to
pursue further higher studies in the
respondent University;

XI.
The
counsels
for
the
respondents shall provide certified copy of
this judgment along with copy of the
judgment of this Court rendered in Writ C
No. 13214 of 2019 (Anant Narayan Mishra
Vs. The Union of India and Others), to the
Vice
Chancellor,
Banaras
Hindu
University,
Varanasi;
the
Secretary,
Ministry of Human Resource Development,
Union of India, New Delhi and the
Chairman, University Grants Commission,
New Delhi, for necessary compliances.

227. The writ petition is allowed to
the extent and manner indicated above.
----------

(2020)03-05ILR A1875
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.01.2020

BEFORE

THE HON'BLE PANKAJ MITHAL, J.
THE HON'BLE SARAL SRIVASTAVA, J.

WRIT-C No. 30320 of 2019
&
WRIT- C No. 30681 of 2019

M/s Husain Stone Crusher & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Satyendra Narayan Singh, Sri Subhash
Chandra Pandey
1876 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
C.S.C., Sri Habib Ahmad

A.Civil
Law-
The
Securitisation
and
Reconstruction of Financial Assets and
Enforcement of Securities Interest Act,
2002 - Section 14 - Functions of District
Magistrate on the issue of taking Possession -
Two distinct jobs have to be performed by the
District Magistrate - The first is to pass a
suitable order for the purpose of taking
possession of the secured assets; and second is
to take possession of such assets and the
documents and to forward them to the secured
creditor which job can be authorized by him to
be performed by any officer subordinate to him
also - The job of passing the order for the
purpose of possession has to be performed by
the District Magistrate himself whereas the job
of taking possession can be delegated by him to
any subordinate officer. (Para 10 and 11)
B. Interpretation of Statute - Delegatus Non
Potest Delegair - Meaning - Application to the
Enactment - Delegate has no power to delegate
i.e. a distinction conferred by Statute on any
authority is intended to be exercised by that
authority only and not by any other unless the
contrary intention is expressed in the Statute
itself - District Magistrate is persona designeta,
that is a person as an individual upon whom the
power to pass an order of possession of the
secured assets has been conferred exclusively -
In the absence of any intention conferring any
authority upon the District Magistrate to
delegate the aforesaid power to any other
person, officer or authority, the power to pass
an order of possession the Act has to be
exercised by the District Magistrate and none
else. (Para 13, 14 and 15)
C. Criminal Law-S.R.F.A.E.S.I. Act, 2002 -
Section 14 - Criminal Procedure Code -
Section 20 - Power of Additional District
Magistrate - Since Additional District Magistrate
is empowered to exercise the powers of the
District Magistrate under the Code or any other
law in force, the order passed by him under
Section 14 of the Securitization Act is not
without jurisdiction - The application moved
under Section 14 can be considered even by the
Additional District Magistrate provided he is
directed by the State Government to perform
the said powers under the Securitization Act in
accordance with Section 20(2) of the Code.
(Para 32 and 39)
Writ Petition dismissed (E-1)
Cases relied on :-
1. Irshad Husain Vs. D.M., Moradabad & ors.,
(2009) 3 ADJ 81 (DB)
2. Brahm Singh & ors.Vs. Board of Revenue &
ors., AIR (2008) Allahabad 144
3. Rich Field Industries Pvt. Ltd. Vs. S.B.I. & 3
ors., (2016) 10 ADJ 192
4. S.K. Akbar Ali Vs. St. of W.B. & ors., (2012)
AIR Calcutta 10
5. M/s Lakshya Concosts Pvt. Ltd. Vs. B.O.B.
(Allahabad) (DB), 2017 AIR (Allahabad) 172
6. Ajaib Singh Vs. State of Punjab, 1965 (2) SCR
845
7. Hari Chand Aggarwal Vs. Batala Engineering
Co., AIR (1969) SC 483
8. Nainital Bank Ltd. Vs. M/s Naveen Kisan Rice
Mill & ors., AIR (2019)Uttaranchal 44
9. The Authorised Officer, Indian Bank Vs. D.
Visalakshi & anr., AIR (2019) SC 4619
(Delivered by Hon'ble Pankaj Mithal, J.
&
Hon'ble Saral Srivastava, J.)

1. Under challenge in this writ
petition is the order dated 26.08.2019
passed
by
the
Additional
District
Magistrate (Finance and Revenue), District
Rampur.

2. The aforesaid order has been
passed by him in exercise of powers under
Section 14 of the The Securitisation and
Reconstruction of Financial Assets and
Enforcement of Securities Interest Act,
2002
(hereinafter
referred
to
as
"Securitisation Act") directing Up Zila
3-5 All. M/s Husain Stone Crusher & Anr. Vs. State of U.P. & Ors.
1877
Magistrate (Sadar) and the Circle Officer
to take possession of the secured assets of
the petitioners.

3. The principle argument of Sri Prateek
Kumar, learned counsel for the petitioners is
that the aforesaid order is without jurisdiction
and as such a nullity. The Additional District
Magistrate has no authority in law to pass any
order under Section 14 of the Securitisation
Act. The power to pass an order under the
aforesaid provisions is vested solely in the
District Magistrate or the Chief Metropolitan
Magistrate. The aforesaid power is a quasijudicial power and it cannot be delegated to any
other person, officer or authority. The
Additional District Magistrate would not be
included in the definition of the District
Magistrate for the purposes of the Securitisation
Act.

4. In defence of the above order, learned
Standing Counsel and Sri Habib Ahmad,
learned counsel appearing for Allahabad Bank
submits that the powers exercised by the
District Magistrate under Section 14 of the Act
are
not
adjudicatory
in
nature
rather
administrative and same can be delegated, if
necessary, to any other person, officer or
authority by the District Magistrate. In fact, in
view of the provisions of Section 20 and 23 of
the Criminal Procedure Code (hereinafter
referred to as "Code"), the Additional District
Magistrate have all the powers of a District
Magistrate and is entitle to exercise all his
powers in his absence.

5. In view of the respective submissions
of counsel for the parties, we are seized with the
following three questions :-

(i) Whether the power exercisable
under Section 14 of the Act are in the nature of
persona designeta and can be exercised only by
the District Magistrate/Chief Metropolitan
Magistrate and not by any other officer much
less the Additional District Magistrate; and

(ii) Whether the Additional District
Magistrate is a District Magistrate for the
purposes of exercising the said power; and

(iii) Whether the District Magistrate/
Chief Metropolitan Magistrate can delegate the
power to pass an order under Section 14 of the
Securitisation
Act
to
any
subordinate
authority/officer such as Additional District
Magistrate.

6. In context with all the above issues, it is
pertinent to refer to Section 14 of the
Securitisation Act. The aforesaid provision
stipulates that where any secured creditor is
desirous of taking possession of the secured
assets, he may move an application in writing to
the Chief Metropolitan Magistrate or the
District Magistrate (for our purpose only
"District Magistrate" hereinafter) of the area
concerned for taking its possession and the
application has to be accompanied by an
affidavit declaring as many as 9 things as
enumerated in the provision whereupon the
District Magistrate on being satisfied as to the
contents of the affidavit, order for the
possession of the secured assets.

7. The aforesaid provision further lays
down that the District Magistrate after
passing of such an order may authorize any
officer
subordinate
to
him
to
take
possession of such assets and documents
relating thereto and forward them to the
secured creditor.

8. The aforesaid Section 14 in its
entirety as it stands today is reproduced
hereinbelow
for
the
purposes
of
convenience-:

14.
Chief
Metropolitan
Magistrate or District Magistrate to assist
secured creditor in taking possession of
1878 INDIAN LAW REPORTS ALLAHABAD SERIES
secured asset. - (1) Where the possession of
any secured asset is required to be taken by
the secured creditor or if any of the secured
asset is required to be sold or transferred
by
the
secured
creditor
under
the
provisions of this Act, the secured creditor
may, for the purpose of taking possession
or control of any such secured asset,
request, in writing, the Chief Metropolitan
Magistrate or the District Magistrate
within whose jurisdiction any such secured
asset or other documents relating thereto
may be situated or found, to take
possession
thereof,
and
the
Chief
Metropolitan Magistrate or, as the case
may be, the District Magistrate shall, on
such request being made to him-:

(a) take possession of such asset
and documents relating thereto; and

(b) forward such asset and
documents to the secured creditor.

[Provided that any application by
the secured creditor shall be accompanied
by an affidavit duly affirmed by the
authorised officer of the secured creditor,
declaring that-

(i) the aggregate amount of
financial assistance granted and the total
claim of the Bank as on the date of filing
the application;

(ii) the borrower has created
security interest over various properties
and that the Bank or Financial Institution
is holding a valid and subsisting security
interest over such properties and the claim
of the Bank or Financial Institution is
within the limitation period;

(iii) the borrower has created
security interest over various properties
giving the details of properties referred to
in sub-clause (ii) above.

(iv) the borrower has committed
default in repayment of the financial
assistance
granted
aggregating
the
specified amount;

(v) consequent upon such default
in repayment of the financial assistance the
account of the borrower has been classified
as a non-performing asset;

(vi) affirming that the period of
sixty days notice as required by the
provisions of sub-section (2) of section 13,
demanding payment of the defaulted
financial assistance has been served on the
borrower;

(vii)
the
objection
or
representation in reply to the notice
received from the borrower has been
considered by the secured creditor and
reasons
for
non-acceptance
of
such
objection or representation had been
communicated to the borrower;

(viii) the borrower has not made
any repayment of the financial assistance
in spite of the above notice and the
Authorised Officer is, therefore, entitled to
take possession of the secl1red assets under
the provisions of sub-section (4) of section
13 read with section 14 of the principal
Act;

(ix) that the provisions of this Act
and the rules made thereunder had been
complied with:

Provided further that on receipt
of the affidavit from the Authorised Officer,
the District Magistrate or the Chief
Metropolitan Magistrate, as the case may
be, shall after satisfying the contents of the
affidavit pass suitable orders for the
purpose of taking possession of the secured
assets [within a period of thirty days from
the date of application]:-

Provided
also
that
the
requirement of filing affidavit stated in the
first proviso shall not apply to proceeding
pending before any District Magistrate or
the Chief Metropolitan Magistrate, as the
case may be, on the date of commencement
of this Act.]
3-5 All. M/s Husain Stone Crusher & Anr. Vs. State of U.P. & Ors.
1879

[Provided further that if no order
is passed by the Chief Metropolitan
Magistrate or District Magistrate within
the said period of thirty days for reasons
beyond his control, he may, after recording
reasons in writing for the same, pass the
order within such further period but not
exceeding in aggregate sixty days.]

[(1A) The District Magistrate or
the Chief Metropolitan Magistrate may
authorise any officer subordinate to him,-

(i) to take possession of such
assets and documents relating thereto; and

(ii) to forward such assets and
documents to the secured creditor.]

(2) For the purpose of securing
compliance with the provisions of subsection
(1),
the
Chief
Metropolitan
Magistrate or the District Magistrate may
take or cause to be taken such steps and
use, or cause to be used, such force, as
may, in his opinion, be necessary.

(3)
No
act
of
the
Chief
Metropolitan Magistrate or the District
Magistrate [any officer authorised by the
Chief Metropolitan Magistrate or District
Magistrate] done in pursuance of this
section shall be called in question in any
Court or before any authority.

9.

The
aforesaid
provision
contemplates the following steps -:

(i) Moving of an application
accompanied by an affidavit containing
certain essentials by the secured creditor
before the District Magistrate for the
purpose of obtaining possession of the
secured assets ;

(ii) Passing of a suitable order by
the District Magistrate on satisfaction of
the contents of the affidavit for taking
possession of the secured assets;

(iii) Authorization by the District
Magistrate to any subordinate officer to
take possession of assets and documents
and to forward them to the secured
creditor.

10. In view of the above provision,
two distinct jobs have to be performed by
the District Magistrate under Section 14 of
the Act. The first is to pass a suitable order
for the purpose of taking possession of the
secured assets; and second is to take
possession
of
such
assets
and
the
documents and to forward them to the
secured
creditor
which
job
can
be
authorized by him to be performed by any
officer subordinate to him also.

11. Thus, in a way, the job of passing
the order for the purpose of possession has
to .be performed by the District Magistrate
himself
whereas
the
job
of
taking
possession can be delegated by him to any
subordinate officer.

12. In other words, the actual order
for possession has to be passed by the
District Magistrate and by no other
authority whereas the possession can be
taken thereafter by any other officer or
authority as may be authorized by the
District Magistrate. The Parliament has
separated the functions of passing an order
on an application made by the secured
creditor and the consequential act of taking
possession of secured assets and documents
thereof for forwarding them to the secured
creditor. The consequential act following
the order of possession has been permitted
to be delegated by the District Magistrate to
any officer subordinate to him but not the
power to pass the order itself whether it
happens to be an administrative order or a
quasi-judicial order with no adjudication of
any lis between the parties.

13. It is a well recognized legal
maxim "Delegatus Non Potest Delegair"
1880 INDIAN LAW REPORTS ALLAHABAD SERIES
meaning that delegate has no power to
delegate i.e. a distinction conferred by
Statute on any authority is intended to be
exercised by that authority only and not by
any other unless the contrary intention is
expressed in the Statute itself.

14. In the present enactment, the
District Magistrate is persona designeta,
that is a person as an individual upon
whom the power to pass an order of
possession of the secured assets has been
conferred exclusively and it is not intended
to be delegated either expressly or
impliedly.

15. In the absence of any intention
conferring any authority upon the District
Magistrate to delegate the aforesaid power
to any other person, officer or authority, the
power to pass an order of possession under
Section 14 (1) of the Securitisation Act has
to be exercised by the District Magistrate
and none else.

16. Now coming to the other aspect of
the matter, whether the District Magistrate
includes Additional District Magistrate, a
reference may be had to Section 20 of the
Code which is quoted hereinbelow-:

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 subdivision 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.

17. The aforesaid provision relates to
Executive Magistrates and provides that the
State Government may appoint as many
persons as it thinks fit to be Executive
Magistrates for every district and shall
appoint one of them to be the District
Magistrate.

18. It further lays down that the State
Government may appoint any Executive
Magistrate to be the Additional District
Magistrate who shall have such powers of
the District Magistrate under the Code or
any other law for the time being in force as
may be directed by the State Government.
3-5 All. M/s Husain Stone Crusher & Anr. Vs. State of U.P. & Ors.
1881

19. In the absence of the District
Magistrate, any officer who succeeds him
temporarily is entitle to exercise his powers
and perform all duties conferred and
imposed under the Code upon the District
Magistrate.

20. In other words, State Government
is entitle to appoint several Executive
Magistrate for every district and one of
them to be the District Magistrate. The
Executive Magistrate can also be appointed
as an Additional District Magistrate and
can be conferred with the powers of the
District Magistrate under the Code or any
other law for the time being in force and is
also entitle to perform the functions and
duties of the District Magistrate as
conferred upon him under the Code.

21. In view of the above, the District
Magistrate
and
Additional
District
Magistrate are both executive magistrates
and the Additional District Magistrate
possesses such of the powers of the District
Magistrate under the Code or any other law
in force as may be directed by the State. In
the absence of the District Magistrate, his
functions and duties may also be performed
by the Additional District Magistrate but
that performance is confined to the Code
only.

22. Section 35 and 37 of the
Securitisation
Act
provides
that
the
Securitisation Act is a special enactment
and its provisions shall have effect
notwithstanding
anything
inconsistent
therewith contained in any law for the time
being in force and that the provisions of the
Securitisation Act shall be in addition to,
and not in derogation of the certain Acts
mentioned therein or any other law for the
time
being
in
force.
The
aforesaid
provisions read as under :-

"35. The provisions of this Act to
override other laws. - The provisions of
this Act shall have effect, notwithstanding
anything inconsistent therewith contained
in any other law for the time being in force
or any instrument having effect by virtue of
any such law.

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 Institutions Act, 1993 (51 of
1993) or any other law for the time being in
force."

23. In Irshad Husain1, a Division
Bench of this Court was seized with a
similar
controversy
as
to
whether
Additional District Magistrate/ Additional
Collector (Finance and Revenue) has the
authority to pass an order under Section 14
of the Securitisation Act. The Court simply
by referring to provisions of Section 14 of
the Securitisation Act and Section 14-A of
the Revenue Act held that as the powers of
the Additional Collector are similar to
those of the Collector, the order passed by
Additional
Collector
is
not
without
jurisdiction.

24. The aforesaid decision has been
rendered on the basis of Section 14-A of the
U.P. Land Revenue Act, 1901 (hereinafter
referred to as "Revenue Act") wherein
appointments and powers of the Additional
Collectors have been laid down. The powers of
the Collectors or the Additional Collectors are
for the purposes of collection of revenue and
not for exercising magisterial powers of
administration.
1882 INDIAN LAW REPORTS ALLAHABAD SERIES

25. Section 14-A of the Revenue Act
is reproduced below for the sake of
convenience :-

[14-A. Appointment, powers and
duties of Additional Collectors.] - (1) The
[State Government] may appoint an
Additional Collector in a district or in two
or more districts combined.

(2) An Additional Collector shall
hold his office during the pleasure of the
[State Government].

[(3) An Additional Collector shall
exercise such powers and discharge such
duties of a Collector in such case or classes
of cases as the Collector concerned may
direct.]

(4) This Act and every other law
for the time being applicable to a Collector
shall apply to every Additional Collector,
when exercising any powers or discharging
any duties under sub-section (3), as if he
were the Collector of the district.

26. According to the aforesaid
provision, Additional Collector has been
authorized to exercise powers of the
Collector and to discharge his duties, as
may be directed. It also provides that law
applicable to a Collector shall also be
applied to every Additional Collector while
exercising powers or discharging duties as
a Collector. It thus entrusts him with the
powers and functions of the Collector.
However, the position of the Collector or
the Additional Collector is totally different
from that of the District Magistrate/
Additional
District
Magistrate
whose
appointment, powers and duties are not
governed by the provisions of the Revenue
Act but by the Code. Both these officers
exercise distinct powers and functions. One
acts as a revenue officer of the district
whereas the other as the executive
magistrate or administrative officer of the
district. Therefore, the powers conferred
upon Collector/ Additional Collector or the
nature of their duties cannot be equated
with
that
of
the
District
Magistrate/Additional District Magistrate.
Accordingly,
the decision
in
Irshad
Husain (supra) and some other decisions
rendered on its basis are not relevant and
conclusive insofar as the powers of the
Additional District Magistrate viz-a-viz the
District Magistrate under Section 14 of the
Securitisation Act are concerned as they are
not the same as that of Collector/Additional
Collector.

27. The aforesaid decision in Irshad
Husain (supra) does not refer to any other
provision of law and fails to take into
account the ex-facie distinction between the
duties of the Collector and the District
Magistrate. The provisions relating to
Collector/Additional Collector and those
relating to District Magistrate/Additional
District Magistrate are distinct and operate
in altogether a different field and as such
the aforesaid decision cannot be treated to
be a good precedent for the purposes of
resolving the controversy as to whether
Additional District Magistrate and District
Magistrate are one of the same authority
who have been conferred with the same
powers for the purposes of passing an order
under Section 14 of the Securitisation Act.

28. The Full Bench decision in
Brahm Singh2 is also in context with the
powers of the Collector and the Additional
Collector. In the said case, the short
controversy
under
consideration
was
whether the powers and functions of the
Collector
can
be
exercised
by
the
Additional Collector under Section 198 (4)
of U.P. Z.A. and L.R. Act. It was in context
with the said controversy that the Court
held that in view of Section 14-A of the
3-5 All. M/s Husain Stone Crusher & Anr. Vs. State of U.P. & Ors.
1883
Revenue Act, the Additional Collector acts
and discharges duties and functions or
exercises such powers of the Collector that
would be deemed to have been exercised
by him under the Act and as such the
powers under Section 198(4) of the said
Act are exercisable by him also.

29. The aforesaid decision also does
not extend any help to us for deciding the
controversy at hand viz-a-viz the powers,
duties
and
functions
of
District
Magistrate/Additional District Magistrate
in
reference
to
Section
14 of
the
Securitisation Act.

30. In Rich Field3, one another
Division Bench of this Court was again
seized of the matter regarding the powers
of the District Magistrate to pass orders
under Section 14 of the Securitisation Act.
The Court after referring to Irshad Husain
(supra) disagreed with the decision of the
Calcutta High Court in S.K. Akbar Ali4
which laid down that an Additional District
Magistrate even if conferred with the
powers of the District Magistrate does not
become District Magistrate and remains to
be an officer below the District Magistrate
and accordingly held that Additional
District Magistrate is competent to decide
the application filed under Section 14 of the
Securitisation Act.

31. One more Division Bench of this
Court in M/s Lakshya Concosts5 while
dealing with an identical controversy
relying upon Irshad Husain and Rich
Field Industries (supra) opined that the
Additional District Magistrate had not
acted illegally or without jurisdiction in
deciding the application under Section 14
of the Securitisation Act.

32. The said Division Bench further
referred to Section 20 of the Code and
came to the conclusion that the District
Magistrate
and
Additional
District
Magistrate are Executive Magistrates and
since Additional District Magistrate is
empowered to exercise the powers of the
District Magistrate under the Code or any
other law in force, the order passed by him
under Section 14 of the Securitisation Act
is not without jurisdiction.

33. The respondents, on the other
hand, relied upon the following three
decisions-:

(i) Ajaib Singh6

(ii) Hari Chand Aggarwal7

(iii) Nainital Bank Limited8

34. In Ajaib Singh, it has been
observed that unless a person is appointed
under the Code as a District Magistrate, he
cannot be called a District Magistrate and
that an Additional District Magistrate is an
officer below the rank of the District
Magistrate.

35. The Three Judges' Bench of the
Apex Court in Hari Chand Aggarwal held
that Additional District Magistrate and
District Magistrate are two different
authorities and that Additional District
Magistrate is not competent to requisition
the property simply because he has been
vested with all powers of the District
Magistrate under the Code. The Hon'ble
Supreme Court therein observed that the
object of appointing an Additional District
Magistrate is to relieve the District
Magistrate of some of his duties and that he
is subordinate to the District Magistrate to a
limited extent only.
1884 INDIAN LAW REPORTS ALLAHABAD SERIES

36. In Nainital Bank Limited where
an
identical
controversy
was
under
consideration as to whether Additional
District Magistrate is empowered to pass
order under Section 14 of the Securitisation
Act, the Court held that the provisions of
the Code or the Revenue Act can not be
pressed into motion to contend the District
Magistrate referred to under Section 14 of
the Securitisation Act, would also include
an
Additional
District
Magistrate.
Notwithstanding that District Magistrate
and Additional District Magistrate are two
different and distinct authorities and
Additional
District
Magistrate
is
subordinate to District Magistrate and
cannot be called as District Magistrate.
Nonetheless,
as
both
are
Executive
Magistrates and the Additional District
Magistrate is entitle to perform functions
and duties of the District Magistrate or to
exercise his powers in his absence as
conferred upon him under the Code or any
other law in force, the Additional District
Magistrate to some extent virtually acts as a
District Magistrate. The use of the phrase
"any other law for the time being in force"
as used in Section 20 of the Code and
Sections 35 and 37 of the Securitisation Act
has very wide amplitude to cover the
powers of the District Magistrate conferred
upon him under the Act which can be
exercised by Additional District Magistrate
in case of necessity and if so directed. It
would not be proper rather unnecessary to
narrow down the scope of the above phrase
by excluding the Act from it as has been
done by the Uttarakhand High Court in the
above case. The provisions of none of the
above enactments permit such limited use
of the above phrase to confine it in relation
to the law relating to securities markets
only.

37. In view of the above, we find it
difficult to agree and follow the above
decision of the Uttarakhand High Court
more particularly when there is a good
precedent of our own High Court in the
shape of M/s Lakshya Concosts Private
Limited (supra).

38. In The Authorised Officer,
Indian Bank9, the issue that cropped up
before the Apex Court was whether the
Chief Judicial Magistrate (C.J.M.) is
competent to process the request of the
secured creditor for taking possession of
secured assets under Section 14 of the
Securitisation
Act
as
the
aforesaid
provision
mentions
only
Chief
Metropolitan Magistrate (C.M.M.). The
Apex Court after in depth consideration of
the entire controversy held that substitution
of the functionaries (C.M.M. as C.J.M.)
qua the administrative and executive or so
to say the non-judicial functions discharged
by them in the light of Code, would not be
inconsistent with Section 14 of the
Securitisation Act. It would be meaningful,
purposive and contextual construction of
Section 14 of the Securitisation Act to
include C.J.M. as competent to assist the
secured creditor to take possession of the
secured assets. It was thus held that C.J.M.
is equally competent to deal with the
application moved by the secured creditor
under Section 14 of the Securitisation Act.

39. Similarly, in the light of the
provisions of the Code, it would be
meaningful to include Additional District
Magistrate as District Magistrate and to
hold that the application moved under
Section 14 of the Securitisation Act can be
considered even by the Additional District
3-5 All. Paras Nath Singh Vs. State of U.P. & Ors.
1885
Magistrate provided he is directed by the
State Government to perform the said
powers under the Securitisation Act in
accordance with sub-section 2 of Section
20 of the Code or if he succeeds District
Magistrate temporarily for discharge of the
executive, administration of the District
Magistrate in accordance with sub-section
3 of Section 20 of the Code.

40. In view of the above, we find no
force in the challenge made to the
impugned order and in the argument raised
on behalf of the petitioners.

41. The writ petition is accordingly
dismissed with no order as to costs.
----------
(2020)03-05ILR A1885
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.02.2020

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE PIYUSH AGRAWAL, J.

WRIT-C No. 40523 of 2019

Paras Nath Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri W.H. Khan, Sri Javed Hussain Khan, Sri
Gulrez Khan

Counsel for the Respondents:
C.S.C., Sri Vinod Kumar Chandel

A. Civil Law-U.P. Kshettra Panchayat and
Zila Panchayat Act, 1961 - Contractual
amount - Recovery as arrear of land revenue -
Legality - There is no provision in the Act, which
empower the Zila Panchayat to recover the
contractual amount as arrears of land revenue -
Contractual amount cannot be recovered as
arrears of land revenue in the absence of any
provisions
-
The
action
taken
by
the
respondents by way of issuing the recovery
citation held legally not justified. (Para 15 and
21)
Writ Petition allowed (E-1)
Cases relied on :-
1. Writ C No. 12575 of 2013; Subhas Tiwari Vs.
St. of U.P. decided on 17.10.2014
2. Subhash Chand Vs. Collector, Etawah & ors.,
(1999) 1 AWC, 582
3. Titu Singh Mathura Vs. D.M./Collector,
Mathura & ors., (2003) 5 AWC 3479
4. Iliyas Vs. St. of U.P. & ors., 2007 (2) ADJ,
143 (D.B.)
5. Mohd. Umar Vs. Collector / D.M. Moradabad
& ors., 2006 (9) ADJ 66 (All) (DB)
6. Sanjay Kumar Gupta Vs. St. of U.P. & ors.,
2013 (5) ADJ 506 (DB)
(Delivered by Hon'ble Piyush Agrawal, J.)

1. Heard Sri W.H. Khan, learned Senior
Advocate assisted by Sri Javed Hasain Khan,
for the petitioner, learned Standing Counsel for
State-respondents and Sri Vinod Kumar
Chandel, for respondent nos. 2 and 3.

2. By means of the present writ petition,
the petitioner is challenging the recovery
certificate dated 24.8.2019 issued by Upper
Mukha Adhikari, Zila Panchayat, Sonebhadra
as well as recovery citation dated 0.1.2019
issued by Tehsildar Chunar, District Mirzapur,
on the ground that there is no provision under
UP Kshetra Samiti and Zila Panchayat
Adhiniyam, 1961, to recover the contractual
amount as arrears of land revenue.

3. Brief facts of the case is that in
pursuance of the Advertisement dated
4.7.2015 issued by Adhyaksh and Upper