ALPHA BETA SHIKSHA SAMITI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This writ petition has been filed by the M/s. Alpha Beta Shiksha Samiti inter alia with the prayer that action of the respondents in putting lock and key on the premises of petitioner's school; namely-Alpha Beta School at A-64, Shanti Path, Tilak Nagar, Jaipur be declared as bad in law with further declaration that the petitioner's school would not be entitled for being dispossessed on the basis of order passed under Sec. 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the SARFAESI Act') and provisions of Rajasthan Rent Control Act, 2001 will prevail and allow the petitioner to run the school peacefully and the tenancy of the premises be directed to be treated as having been transferred to the respondents from the erstwhile landlords and accordingly order dated 17.07.2012 passed by District Collector, Jaipur under Sec. 14 of the SARFAESI Act be accordingly modified.

(2.) The petitioner is a registered society under the Cooperative Societies Act and running a school namely Alpha Beta School at the premises situated at A-64, Shanti Path, Tilak Nagar, Jaipur. According to the petitioner, it took the said premise on rent from its owner Late Shri P.C. Sogani in the year 1986 and since then the petitioner-society is running the aforesaid school and continuously paying rent to Late Shri P.C. Sogani and after his death, to his legal heirs. School building on the aforesaid premises has also been constructed by the petitioner-society and another school-namely; Vimukti Girls School having strength of almost 600 girls belonging to poor background, is also being run in the disputed premises. It so happened that the land was hypothecated by the then owner Late Shri P.C. Sogani for a loan taken by a company namely Unicorp Indus Limited, which is now under liquidation. On an application filed by Respondent No. 2 under Sec. 14 of the SARFAESI Act, District Collector, Jaipur vide order dated 17.07.2012 directed Respondent No. 2 to take possession of the premises. Thereafter, application under Sec. 17 of the SARFAESI Act was filed by the petitioner-society before the Debts Recovery Tribunal, New Delhi, which was transferred to Debts Recovery Tribunal, Jaipur. Said application was decided vide order dated 23.03.2012 whereby it was held that such application at the behest of a tenant is not maintainable and no remedy is available under Sec. 17 of the SARFAESI Act. Pursuant to order dated 17.07.2012, Respondent No. 2 put the possession notice on the wall of the school premises on 23.07.2016. In the meantime, the Recovery officer, Debts Recovery Tribunal dismissed the objections (RC No. 03/2014) vide order dated 112014. Thereafter, vide order dated 24.06.2016 receiver was appointed for dispute premises. The petitioner filed Writ Petition No. 6171/2015 challenging the said order before the Delhi High Court. Said writ petition was dismissed as not pressed with liberty to the petitioner to seek appropriate remedy provided under Sec. 30 of the Debt Recovery Tribunal Act with direction that the receiver shall not take physical possession of the mortgage property for a period of one week. The petitioner then filed appeal before the Debts Recovery Tribunal, New Delhi, which vide order dated 007.2015 continued the interim protection granted by the Delhi High Court and the said appeal is still pending before the DRT, Delhi and interim order is continuing. However, in the meantime, the respondent No. 2 put its lock and sealed the disputed premises, therefore, the petitioner-society has approached this Court by filing present writ petition. This Court while issuing notices of the writ petition vide order dated 008.2016 stayed dispossession notice dated 23.7.2016.

(3.) Mr. Ashok Gaur, learned Senior Counsel appearing on behalf of the petitioner argued that the petitioner-society has taken the premises in question on rent from the original owner Late Shri P.C. Sogani in the year 1986 and is continuously has been paying rent to Mr. P.C. Sogani and after his death to his legal heirs. It has been running a school in the name of Alpha Beta English Medium School having around 250 students and another school by name of Vimukti Girls School is also being run in the disputed premises, which has strength of almost 600 girls belonging to poor background. It is argued that in spite of interim order passed by DRT, Delhi dated 02.07.2015, which is still continuing till date, Respondent No. 2 illegally issued dispossession notice dated 207.2016. Relying on the judgment of the Supreme court in Vishal N. Kalsaria Vs. Bank of India & Others, (2016) 3 SCC 762, learned Senior Counsel argued that SARFAESI Act operates in a different field and it cannot be used to dispossess a tenant from the mortgaged property and the rights of such tenant can only be determined by competent tribunal under the Rajasthan Rent Control Act, 2001. It has been held by the Supreme Court that the factum of non-registration of the deed executed between the tenant and the landlord is immaterial as such factum could even otherwise be established by the relationship of landlord and tenant and the regular payment of rent is sufficient proof to establish a tenant and landlord relationship. Learned Senior Counsel further argued that Respondent No. 2 neither before moving application before the District Collector, Jaipur, nor prior to taking possession vide possession notice dated 207.2016, had given any notice under Sec. 13(2) of the Act to the petitioner, nor any prior information was given to the petitioner-society. Impugned order has been, therefore, passed without opportunity of hearing to the petitioner. It is submitted that writ petition filed before this Court is maintainable against the dispossession notice dated 207.2016, as it is purported to have been issued in compliance of order of District Collector, Jaipur dated 17.07.2012. Learned Senior Counsel argued that Sec. 17(4A) has been incorporated in the SARFAESI Act through amendment dated 16.08.2016, which is prospective in nature whereas in the present case possession notice dated 207.2016 had already been issued by the respondent before aforesaid amendment. Application filed by the petitioner under Sec. 17 of the SARFAESI Act has already been dismissed on the ground that application on behest of a tenant under Sec. 17 is not maintainable. Therefore, even if now Sec. 17(4A) has provided certain rights to the tenants, tenancy rights of the petitioner-society cannot be decide by Debts Recovery Tribunal, Jaipur.