Criminal trespass and unlawful occupation

at your mercy (Querist) 26 May 2024 This query is : Resolved
The property was registered and in possession of the purchaser for more than tw years. The ealier owner who transfereed and handede over possession by court order. The person trespased and in unlaful occupation. FIR was registered but no remedy. hence writ filed as below. and the order by HC to exhast section 14 sarfase act. which appears faulty. the writ disposed as below 4. Considering the fact that the petitioner has a remedy under Section
14 of the SARFAESI Act, it is open to him to exhaust this remedy and not
to approach this Court exercising jurisdiction under Article 226 of the
Constitution of India.

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This discussion addresses a situation where a purchaser, who legally acquired property via e-auction over two years ago and took possession via a court order, is now facing criminal trespass and unlawful occupation by the previous owners. Despite an FIR being registered, the police have been hesitant to act, labelling it a civil matter. A writ petition filed in the High Court was disposed of with a direction to exhaust remedies under Section 14 of the SARFAESI Act, which many participants believe is an incorrect application of the law in this context. The consensus suggests that civil action in a civil court for eviction and injunction is the primary recourse, alongside potentially pursuing criminal complaints through the District Police Chief or Chief Judicial Magistrate if the police continue to refuse registration of an FIR.

T. Kalaiselvan, Advocate (Expert) 26 May 2024
It is not understood that what writ have you filed and why was section 14 of sarfaesi act was invoked here.
You may better show the papers to any prudent lawyer in the local and get the opinion in person.

kavksatyanarayana (Expert) 26 May 2024
I just wanted to let you know that your query is not at all clear. The buyer bought the property 2 years back, so could you hand over it by court order? Is there any dispute regarding the property? Why did the Sarfaesi Act come in this scenario?

P. Venu (Expert) 27 May 2024
Yes, the query is disjointed and lacks clarity.
Anyhow, provisions of Section 14 are of no application in the given context.

Which High Court? What is the Case (WP) No. ?

at your mercy (Querist) 28 May 2024
the purchaser got the property through, e auction. The accused broke open locks A criminal FIR UNDER 448,&427&,and506(1)and,324&,294b was registered after 2 months struggle onlyafter meeting DIG. writ IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.05.2024
CORAM :
THE HON'BLE MS. JUSTICE P.T.ASHA
AND
THE HON'BLE MR. JUSTICE N.SENTHILKUMAR
Writ Petition No.13613 of 2024
and
W.M.P.No.14766 of 20 was filed. Affidavit clearly explained all criminal offences and complaints trespass to burglary mdamages, theft
14) It is submitted that the next day 24/.01./2024 6th / 7th
respondent trespassed into my subject property broke the newly
installed CCTV cameras and vandalized the property and occupied
the same. Immediately, I lodged a complaint with the 1st
respondent police. It is pertinent to note that no FIR was
registered against the 6th / 7th respondent and the 1st respondent
police evaded to register FIR stating that it is a civil nature case.
The police authority failed miserably and acted jointly with the
accused.
1.In the Coram, the other judgeappears unpresent
2.the judge didn't mention abt trespass and inaction of police
Hence thejudgement appears fault,

K Rajasekharan (Expert) 28 May 2024
If the trespass into your property can be considered to be a criminal trespass and the police officer is unwilling to register a crime considering it as a civil matter, you can approach the District Police Chief first, and then the Chief Judicial Magistrate Court with a complaint. Filing a writ is not at all an appropriate solution.

Similarly, you can approach the civil court to evict the encroachers and get enforceable injunctions.

T. Kalaiselvan, Advocate (Expert) 28 May 2024
Well advised by advocate Mr Rajashekharan, you may follow the advice.

P. Venu (Expert) 28 May 2024
No Order or Judgment has been uploaded in the Court Website, though the case status informs the WP No. 13613 to be disposed of.

In the absence of authentic information, it is impossible to offer any meaningful suggestion. Have you obtained a (certified) copy of the Order/Judgment.

at your mercy (Querist) 28 May 2024
AttnAdv.Venu Sir: for Madras HC judgements, you have to go to Judgement portal or https://mhc.tn.gov.in/judis/index.php/casestatus/party

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 15/.05/.2024

CORAM :

THE HON-BLE MS. JUSTICE P.T.ASHA
AND
THE HON-BLE MR. JUSTICE N.SENTHILKUMAR

Writ Petition No./13613/ of 2024
and
W.M.P.No.
A.Nagarajan
S/o.N.Arumugam ..Petitioner
Vs

1.The Deputy Inspector General of Police, Salem Range,
3/34 Subramaniyapuram Extension,
Subramaniyapuram, Salem ~

2.The District Superintendent of Police,
Sankagiri Main Road, Nethimedu,
Salem, Tamil Nadu .

3.The Deputy Superintendent of Police (Omalur),
Mettur Main Road, Near BSNL Office,
Omalur, Salem ~

4.The Inspector of Police,
Tharamangalam Police Station,
Omalur Main Road, Omalur Taluk,
Salem District ~
5.Indian Bank,
represented by its Authorized Officer,
Tharamangalam Branch,
No.163, Jalakandapuram Main Road,
1st Floor, Taramangalam,
Salem ~

6.M/s.Star Pipes,
represented by its Proprietor Mr.K.Palanisamy,
S/o.Kulandai Gounder,
148, Anaimedu, T.Konagapadi Village,
Omalur Taluk, Salem District.

7.K.Palanisamy
S/o.Kulandai Gounder ..Respondents

Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus directing the respondents 1 to 4 to remove trespasser respondents 6 and 7 (who are one and same) from the subject property and handover physical possession of the property part and parcel of land and newly constructed building bearing Door No.7, situated at S.No.188/2A at Konagapadi Village Junction Main Road, Lachumayur Bus Stop, Pavalathanoor ~ 6, Omalur Taluk, Salem District, with the extent of 11K sq.ft. Boundary: North by: Salem Main Road, South by: Palanisamy partition property, East by: R.V.Senthil Kumar property and West by : Palanisamy partition property to the petitioner.

For Petitioner : Mr.R.Chellamuthu

For Respondents : Mr.R.Muniyapparaj
Additional Public Prosecutor [R1 to R4]
*****

ORDER

(Made by P.T.ASHA, J.)
This petition has been filed seeking issuance of a Writ of Mandamus directing the respondents 1 to 4 to remove the trespassers respondents 6 and 7 (who are proprietary concern and the Proprietor) from the subject property and handover physical possession of the subject property to the petitioner.

2. Heard Mr.R.Chellamuthu, learned counsel for petitioner and Mr.R.Muniyapparaj, learned Additional Public Prosecutor appearing for respondents 1 to 4.

3. The fifth respondent bank issued an auction sale notice on 29.09.2020 and fixed the auction on 04./11/.2020 for the subject property, which was owned by respondents 6 and 7. The petitioner became the successful bidder/purchaser and paid the entire sale consideration of Rs.91,95,thousand/~. Thereafter, sale certificate was issued to the petitioner on 18./12./2020. In the appeal filed by the respondents 6 and 7 before the Debt Recovery Tribunal, Coimbatore, challenging the e~auction, the Tribunal passed a conditional order directing the respondents 6 and 7 to pay Rs.12lak/~ in two installments. Since the respondents 6 and 7 have not complied with the said condition, the sale was confirmed and sale certificate was duly registered in favour of the petitioner. Before physical possession was handed over to the petitioner by the fifth respondent, on 22./10./2021, the respondents 6 and 7 demolished the office building. Physical possession was handed over by virtue of order in Crl.M.P.No.170 of 2021, Chief Judicial Magistrate, Salem. The respondents 6 and 7 have trespassed and occupied the property on 24/.01./2024. Left with no other option, the petitioner has filed the present petition seeking for appropriate relief.

4. Considering the fact that the petitioner has a remedy under Section 14 of the SARFAESI Act, it is open to him to exhaust this remedy and not to approach this Court exercising jurisdiction under Article 226 of the Constitution of India.
Accordingly, this Writ Petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.

[P.T.A., J.] [N.S., J.]

Index:Yes/No
Speaking Order: Yes/No
Neutral Citation:Yes/No
gm
To

1.The Deputy Inspector General of Police, Salem Range,
3/34 Subramaniyapuram Extension,
Subramaniyapuram, Salem ~

2.The District Superintendent of Police,
Sankagiri Main Road, Nethimedu,
Salem, Tamil Nadu

3.The Deputy Superintendent of Police (Omalur),
Mettur Main Road, Near BSNL Office,
Omalur, Salem ~

4.The Inspector of Police,
Tharamangalam Police Station,
Omalur Main Road, Omalur Taluk,
Salem District ~

P.T.ASHA, J.
and
N.SENTHILKUMAR, J.

gm

K Rajasekharan (Expert) 28 May 2024
It seems the petitioner’s writ petition seeking direction to the police to remove trespassers and the high court’s direction to approach CJM under Section 14 are not proper remedies as per law.

Once the sale is over and the sale is confirmed by the appellate authority, the property belongs to the auction purchaser like any other private property with absolute tittle.

Therefore, the remedy to remove the trespassers from such a property is mainly a civil action against the encroachers. The Section 14 is meant for the Secured Creditor to remove obstructions.

Criminal trespass is ordinarily used to charge against the trespasser who does the trespass with an intention to intimidate, insult or annoy any person in possession of the property.

If it is a mere encroachment on the property to hold its possession and use of any kind, it is only a civil matter and the right place to approach is the civil court under Specific Relief Act and Civil Procedure Code.

T. Kalaiselvan, Advocate (Expert) 28 May 2024
The high court judgment disposing the writ petition appears to be proper and correct as per prevailing law in this regard.
The high court has rightly advised the petitioner to exhaust the remedies under section 14 of the sarfaesi act.
Therefore it is clear that you were misguided to approach high court for the remedy which is not available before high court.
You may better file a petition before CJM court under section 14 of Sarfaesi act to get physical possession instead of agitating over the judgment pronounced by high court.

P. Venu (Expert) 29 May 2024
I agree with learned expert Mr. Rajasekharan. You have been pursuing the wrong remedy. The police have no authority any evict a person, even if a trespasser. Whatever the provision of the IPC invoked, all that the police can do is to investigate and submit the Report to the competent Magistrate to punish the accused if proved guilty. May be, the police have been wrong in not registering the FIR. But all that the High Court could have done is to direct them register the FIR and investigate; there could be no direction to evict the alleged trespasser.

The obvious remedy is in a civil action under the Specific Relief Act, more particularly the provisions of Section 6. The proceedings under the SARFAESI Act having come to a close, the earlier owner is mere stranger to the property.

However, in the given facts, the alleged act of trespass amounts to criminal contempt of Court, esp. in the light of the fact that, reportedly, the property had been handed over handed over by virtue of order in Crl.M.P.No.170 of 2021, Chief Judicial Magistrate, Salem. In my understanding, the directions of the High Court needs to be understood in that context.

It is open to the querist to pursue both the remedies.

K Rajasekharan (Expert) 29 May 2024
The direction of the High Court is faulty and made without reading or understanding what is provided for in Section 14 of the Sarfaesi act, which empowers the Secured Creditor to file an application, with an affidavit of the Authorized Officer to the CJM, seeking his assistance in taking possession of the property and nothing else.

That means, the Authorized Officer on behalf of the Secured Creditor can approach the CJM and it can be done only when the asset is under their custody and possession.

In this case that stage is over, it seems.

T. Kalaiselvan, Advocate (Expert) 29 May 2024
The secured creditor, in order to take physical possession, has to file a petition before CJM court seeking police protection to the authorised officer and then deliver possession to the auction buyer as provisions of law.
Thus your remedy lies with the CJM court and not with High court.

K Rajasekharan (Expert) 30 May 2024
The query starts by saying that the property was registered and in possession of the purchaser for more than two years.

It indicates that the auction is over, a sale certificate has been issued, the purchaser has taken possession of the property, the purchaser has become the absolute owner of the land, and if so, the Secured Creditor has no role to play in that property under Section 14 of the Sarfaesi act, if what I understand is correct.

P. Venu (Expert) 30 May 2024
The High Court Order makes a specific mention as to "Physical possession was handed over by virtue of order in Crl.M.P.No.170 of 2021, Chief Judicial Magistrate, Salem".

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