T. M. ROBY Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioners, husband and wife, were residing in Elamkulam Village along with their children, triplets, all aged 4 years. The 1st petitioner had studied only up to 4th standard and the 2nd petitioner had studied up to 10th standard. The 3rd respondent, the Central Bank of India is a Financial Institution involved in Banking business covered by the Banking Regulation Act, 1949. The 4th respondent is the Advocate Commissioner appointed by the Chief Judicial Magistrate Court, Ernakulam in MC No.102/2016 preferred by the 3 rd respondent Bank invoking the provisions under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act).

(2.) The petitioners state that they are neither secured debtors nor is the residential property where they reside a secured debt as prescribed under the SARFAESI Act. It is stated that on 1/2/2017 at around 12.30 p.m, the officers of the Bank and the Advocate Commissioner came to their residential premises along with the 1st petitioner's brother and handed over Ext.P1 notice to the 1 st petitioner and ordered him to vacate the residential property. Ext.P1 is the possession notice under Sec. 13 (4) of the SARFAESI Act issued to Roy George T.M, the brother of the 1st petitioner. The Advocate Commissioner demanded the petitioners to remove their personal effects from the house immediately stating that he is going to seal the premises. When the petitioners questioned the action of the Advocate Commissioner, they were threatened with dire consequences. The petitioners' neighbours, who rushed to the house of the petitioners on hearing the commotions, were also threatened and they stood away as passive onlookers to the criminal trespass and forceful dispossession of the petitioners and their minor children. As the petitioners were standing surprised by all these actions, the Advocate Commissioner closed their dwelling house, even without permitting to remove any of their immediate requirements and sealed the house, leaving them on the veranda. The petitioners state that they had to spend three days outside the house on the veranda braving the odds. The local people and the local ward member of the Corporation of Kochi, on seeing the plight of the petitioners and family, went through Ext.P1 notice and realised that the possession notice was not in relation to the property of the 1 st petitioner at Elamkulam where they were residing, but was in relation to the property situated in Maradu Village belonging to the 1st petitioner's brother, Mr.Roy George. When this was brought to the notice of the Bank by the ward member, respondents 3 and 4 came to the petitioners' property on 4/2/2017 and made the petitioners sign some documents and gave them possession of the property on the same day itself. The petitioners state that the matter was reported by the media and the news item which came in daily has been produced as Ext.P2.

(3.) According to the petitioners, the action of respondents 3 and 4 in trespassing into their property and forcefully dispossessing them and their minor children violates the basic principle of natural justice and the personal liberty granted under the Constitution of India. The petitioners were wrongfully dispossessed from their property for three days and nights and the same amounts to sheer abuse of the process of law and violation of Article 21 of the Constitution of India. The petitioners contend that, the 3rd respondent which comes within the purview of State under Article 21 of the Constitution of India is liable to pay compensation for the infringement of life and personal liberty of the petitioners and their minor children. Accordingly, the petitioners have filed this writ petition for direction to respondents 1 and 2, namely, the Union of India and State of Kerala to pay the petitioners a sum of Rs.50.00 Lakhs towards the infringement of life and personal liberty of the petitioners and their minor children in the hands of respondents 3 and 4. A direction is also sought to the concerned to take appropriate action against the respondents who are guilty in dispossessing the 1st petitioner and his family from his house illegally.