Karnataka High Court

Mrs Uma Suresh vs State Of Karnataka on 28 June, 2023

Bench: M.Nagaprasanna

                           1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 28th DAY OF JUNE, 2023

                          BEFORE

         THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

         WRIT PETITION No. 18116 OF 2022 (GM-RES)


BETWEEN:

1 . MRS. UMA SURESH
    W/O SURESH G.,
    AGED ABOUT 63 YEARS
    R/AT 212, 5TH MAIN ROAD
    10TH CROSS, NGEF LAYOUT
    NAGARBHAVI,
    BENGALURU - 560 072.

2 . MR. SURESH G.,
    S/O LATE GANESH NAIG
    AGED ABOUT 65 YEARS
    R/AT 212, 5TH MAIN ROAD
    10TH CROSS, NGEF LAYOUT
    NAGARBHAVI
    BENGALURU - 560 072.
                                             ... PETITIONERS

(BY SRI SUDHARSAN SURESH, ADVOCATE)


AND:

1.   STATE OF KARNATAKA
     DEPARTMENT OF LAND REVENUE
     VIDHANA SOUDHA
                             2




     BENGALURU - 560 001.
     REPRESENTED BY ITS SECRETARY
2.   THE DEPUTY COMMISSIONER
     BENGALURU DISTRICT
     K.G.ROAD, NEAR DISTRICT REGISTRAR
     OFFICE, AMBEDKAR VEEDHI
     SAMPANGI RAMA NAGARA
     BENGALURU,
     KARNATAKA - 560 009.

3.   DEPUTY THASILDAR
     BENGALURU SOUTH TALUK
     KHANDAYA BHAVAN
     4TH FLOOR, K.G.ROAD
     BENGALURU - 560 009.

4.   MANI RAMA MURTHY
     AGED MAJOR
     FATHER NAME: NOT KNOWN
     NO.249, 2ND 'A' MAIN,
     2ND BLOCK, 4TH STAGE
     VINAYAKA LAYOUT
     NAGARBAVI
     BENGALURU - 560 072.
                                               ... RESPONDENTS

(BY SRI B.V.KRISHNA, AGA FOR R1 TO R3;
    SRI MANI RAMA MURTHY, PARTY IN PERSON R4)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 READ
WITH ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO:

     a)      DIRECTION AGAINST THE RESPONDENTS TO QUASH
             THE   ENDORSEMENT      BEARING       NO.    DATED
             24.08.2022,   IN   RESPECT   OF    THE     SUBJECT
                                3



              PROPERTY PRODUCED HEREWITH AS ANNEXURE-R,
              AT PAGE NO.79 AND ETC.,


     THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 11.04.2023, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-

                              ORDER

The petitioners are before this Court calling in question an

endorsement dated 24-08-2022 passed by the respondents

concerning the schedule property and have sought a consequential

direction to the respondents to consider their representations and

pass appropriate orders.

2. Brief facts as borne out from the pleadings are as follows:-

The petitioners who are both aged beyond 60 years had made

certain investments in sites claiming to be in the fond hope that

they would fetch better returns in future. At that point in time, it

appears, that Mr. K.R. Kannan had approached the petitioners and

represented to them that he was the Director of a company called

K.R.K Properties Private Limited (hereinafter referred to as 'the

Company' for short) and is engaged in the business of developing

residential layouts and their sale thereof. The petitioners were

made known that development of two projects is in the pipeline of

the Company in the name and style of 'KRK Temple Town' and 'KRK

Heritage'. The petitioners then decided to invest in the projects

floated by the Company and deposited an amount totaling to `47/-

lakhs at intermittent installments between the years 2010 and 2013

towards the proposed projects as aforesaid being developed by the

Company. The petitioners contend that they were assured that

delivery of property would be done within a year from the date of

payment.

3. The projects floated by the Company failed as in terms of

the commitment made to the petitioners and the property was not

delivered within one year from the date of making good the entire

payment. It is, therefore, the petitioners filed a complaint before

the jurisdictional Consumer Redressal Forum against the Company,

which comes to be allowed by an order dated 17-11-2017 declaring

that the petitioners would be entitled to the property along with

interest at 18% per annum from the date of last payment being

made. This was not complied with. The petitioners then file an

execution petition seeking execution of the order passed by the

Forum. In the execution petition an attachment order was made

for one property bearing Flat No.1299/G1, Ground Floor, Manasa

Residency Apartments, 24th Main Road, Magadi Chord Road,

Bengaluru, which belonged to the Director of the Company and

moneys due to them was sought to be realized by seeking the

aforesaid property in attachment. The petitioners later appear to

have ascertained the market value of the said property in terms of

guidance value issued by the Government from time to time and

found that the property would be valued approximately at `62/-

lakhs. Based upon the proceedings in execution, recovery

certificate was issued by the Consumer Forum with a direction to

the Revenue Authorities to recover the amount that was due to the

petitioners i.e., the value of the property as arrears of land

revenue.

4. Certain analogous proceedings and other claims were going

on against the Company. Then the petitioners learnt that one

Mr.Mani Rama Murthy, respondent No.4 had secured a similar order

against the Company and had been attempting to seek attachment

of the very property that was attached in favour of the petitioners.

However, the petitioners had obtained the judgment of an order of

attachment long prior to the attachment order in favour of the 4th

respondent. Owing to this dispute, the petitioners approached 2nd

and 3rd respondents by submitting a representation/objection on

16-07-2019 with regard to the attachment of property that is

already attached in their favour. The 2nd and 3rd respondents in the

month of July 2019, on the basis of the claim put up by the 4th

respondent, conduct auction proceedings. The 3rd

respondent/Tahsildar fixes the minimum reserve price and conducts

the auction. On conclusion of auction proceedings, the price of the

property stood finalized at `30/- lakhs, which was far below the

guidance value. Therefore, the petitioners submitted a

representation to the respondents by way of protest for

confirmation of sale below the reserve price. Non-consideration of

the representation led the petitioners to file a writ petition before

this Court in Writ Petition No.7580 of 2020. The writ petition comes

to be disposed of on 17th December, 2020 directing re-auction of

the property in accordance with law. Against the said order, the 4th

respondent filed a writ appeal before the Division Bench in Writ

Appeal No.466 of 2021. The Division Bench in terms of its order

dated 14-07-2021 directed official respondents to conduct auction

in a time bound manner. Even then, the auction was not conducted.

Therefore, the petitioners appeared to have approached the State

Consumer Disputes Redressal Commission seeking necessary

direction for expeditious disposal of the claim of the petitioners. The

Consumer Commission also directs the 1st respondent to include the

claim of the petitioners in the auction slated to be held in terms of

the order passed by this Court. In furtherance of the aforesaid

direction, the petitioners submitted several representations. The

property was then put to auction on 15-09-2022. The claim of the

4th respondent was recognized and claim of the petitioners was

ignored. The petitioners then submit a representation against the

aforesaid action of ignorance of their claim and acceptance of the

claim of the 4th respondent. The representations go unheeded and,

therefore, the petitioners are before this Court calling in question

endorsement dated 24-08-2022, which declines to accept the

representation of the petitioners who had sought consequential

direction as afore-observed. This Court in terms of its order dated

13-09-2022 had granted an interim order of stay of further

proceedings pursuant to the auction so sought to be conducted.

5. Heard Sri Sudharsan Suresh, learned counsel appearing for

the petitioners, Sri B.V.Krishna, learned Additional Government

Advocate appearing for respondent Nos.1 to 3 and Sri Muni Rama

Murthy, respondent No.4 party in-person.

6. The learned counsel appearing for the petitioners would

contend with vehemence that the respondents have been

completely partisan towards the claim of the 4th respondent

notwithstanding the right of the petitioners flowing long prior to the

claim of the 4th respondent. Several representations to consider

their claim as well at the time when the property was put to auction

have all gone unheeded. He would submit that auction should be

quashed and re-auction should be ordered strictly in accordance

with law as directed by this Court and also bearing in mind the

observations of the consumer fora.

7. On the other hand, the 4th respondent who appears in

person would seek to refute the submissions of the learned counsel

appearing for the petitioners to contend that in one auction there

cannot be two shares as the auction that is slated to be held is a

property attached in his favour and that cannot become a subject

matter of sharing of proceeds of auction. It can either be theirs or

his. He would seek dismissal of the petition.

8. The learned Additional Government Advocate would seek to

support the submissions made by the 4th respondent contending

that what is done is in accordance with law.

9. I have given my anxious consideration to the submissions

made by the respective learned counsel, respondent No.4 in-person

and have perused the material on record.

10. The afore-narrated facts are not in dispute. In furtherance

of a project of property belonging to the Company, the petitioners

invested `47/- lakhs between the years 2010 and 2013. This fact is

not disputed. The Company had secured amounts of this kind from

several home buyers and non-delivery of apartments within the

time allowed to several consumers, resulted in complaints being

filed against the Company seeking refund of the amount along with

interest thereon. Two such complaints were preferred by the

petitioners. The Consumer Forum allows the complaints filed by the

petitioners and the like and directs refund of the amount along with

interest at 18% per annum from the last date of its receipt and till

the date of refund. Even then, the Company does not refund.

Execution petitions were filed before the Consumer Fora which also

come to be allowed directing attachment of property belonging to

the Company. It is then the petitioners represent to respondent

Nos.2 and 3 to auction the property that had been subject matter of

the attachment. The petitioners claim that they had assessed the

value of the property and submitted a representation that the value

of the property is at `62/- lakhs.

11. The 4th respondent was one of those who also secured an

order at the hands of the Consumer Forum alleging the very same

ground. The property that is sought to be attached in favour of the

petitioners also becomes a subject matter of attachment in favour

of the 4th respondent. After the said events, the property was put to

auction by the respondents on the claim of the 4th respondent and

not on the claim of the petitioners and it was valued at `30/- lakhs,

which according to the petitioners was far below the guidance

value. It is, therefore, the petitioners knocked at the doors of this

Court in Writ Petition No.7580 of 2020, which comes to be disposed

of by an order dated 17-12-2020 by observing as follows:

"2. Petitioners and respondent No.4 have obtained orders from District Consumer Disputes Redressal Forum for refund of money against M/s KRK properties Pvt.Ltd. as per order dated 17-11-2017. Pursuant to said order, the Tahsildar has brought the property belonging to one Mr. K.R. Kannan, Director of M/s KRK Properties Pvt.Ltd., for auction. Petitioners' grievance is that property has been sold for a price which is much lower than its actual price.

3. Learned AGA, on instructions from Special Tahsildar Mrs. Dhanalakshmi (respondent No.3) present in Court, submits that Tahsildar having realized that the value of offer was much lower than the actual value of its property, has refunded the sale consideration to proposed auction bidder. However, in view of the interim order passed by this court, a formal order cancelling the auction has not been passed. She prays that Deputy Commissioner may be permitted to pass formal order of cancelling the earlier auction based on the recommendation of Tahsildar and thereafter to take further action to re-auction the property.

             4. Learned   Advocate    for   petitioners   has   no
      objections.

5. In the circumstances, this petition is disposed of permitting the Deputy Commissioner to cancel the earlier auction held on 25-07-2019 by passing necessary orders and refund the amount to the bidder, if not already refunded and thereafter, take further action to re-auction the property in question in accordance with law."

The writ petition comes to be disposed of recording the submission

made by the State that the Tahsildar has realized that the value of

offer much lower than the actual market value of the property and,

therefore, sale consideration was refunded to the proposed auction

bidder and re-auction would be conducted of the property. The

petition was disposed of permitting the Deputy Commissioner to

cancel the earlier auction, refund the amount to the bidder and take

further action to re-auction the property. The 4th respondent calls

this order in question before the Division Bench in Writ Appeal

No.466 of 2021. The same comes to be disposed of in terms of the

judgment of the Division Bench dated 14th July, 2021 by the

following observation and order:

"2. The facts of the case reveal that the applicant before this Court has obtained an order from District Consumer Disputes Redressal Forum for refund of money against M/s KRK Properties Pvt. Ltd. as per order dated 17.11.2017. In the present case the facts reveal that an auction was held in respect of the property. However, later on, it was realized that the value so offered as much lower than the actual value of its property and the sale consideration was returned back to the proposed auction bidder. The learned single Judge was informed that a formal order cancelling the auction was not passed and the Deputy Commissioner was permitted to cancel the earlier auction which took place on 25-07-2019.

3. Sri Murthy appearing in person has stated before this court that the matter has been delayed right from 2017 and some time limit should be fixed for conducting a fresh auction and for payment of his dues. The prayer of Murthy appears to be reasonable.

4. Resultantly, the Deputy Commissioner is directed to cancel the auction by passing the appropriate order. The same has not been done within 15 days from today and thereafter within three months process of auction shall be concluded and the amount shall be paid to Sri Murthy in accordance with law. With the aforesaid, the writ appeal stands disposed of."

The order of the learned single Judge was not interfered with but a

three months time was granted to complete the process of auction

and the amount to be paid to the 4th respondent in accordance with

law. After the said order was passed by this Court, the petitioners

again knocked at the doors of the State Consumer Redressal

Commission seeking a direction to conduct auction in terms of the

orders passed by this Court. It is then, an auction notice is issued

on 24-08-2022. The auction notice reads as follows:

"eÁÕ¥À£À

«µÀAiÀÄ: ªÉÄ.PÉ.Dgï.PÉ.¥Áæ¥ÀðnÃ¸ï ¥ÉæöÊªÉÃmï °«ÄmÉqï, £ÀA.215, 5£ÉÃ PÁæ¸ï, 3£ÉÃ ªÉÄÊ£ï, LnL ¯ÉÃOmï »A¨sÁUÀ, fAiÉÆÃ¯Áf ¯ÉÃOmï, ¨ÉAUÀ¼ÀÆgÀÄ 560056 gÀªÀjAzÀ ²æÃ ªÀÄtÂ gÁªÀÄªÀÄÆwðgÀªÀjUÉ §gÀ¨ÉÃPÁzÀ ¨ÁQ ±ÀÄ®Ì gÀÆ.10,00,000/- ªÀÄvÀÄÛ EvÀgÉ ¸ÉÃj MlÄÖ gÀÆ.25,30,500/- UÀ¼À£ÀÄß ¨sÀÆPÀAzÁAiÀÄ jÃvÁå ªÀ¸ÀÆ° ªÀiÁqÀÄªÀ §UÉÎ.

G¯ÉèÃR: f¯Áè¢üPÁjUÀ¼ÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ f¯Éè, ¨ÉAUÀ¼ÀÆgÀÄ gÀªÀgÀ ¥ÀvÀæ ¸ÀASÉå: JAJ¸ï¹/(EvÀgÉ E¯ÁSÉ)/¹Dgï/20/2017-18 ¢£ÁAPÀ 18/04/2022.

******

ªÉÄÃ®ÌAqÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ ªÉÄ.PÉ.Dgï.PÉ.¥Áæ¥ÀðnÃ¸ï ¥ÉæöÊªÉÃmï °«ÄmÉqï, £ÀA.215, 5£ÉÃ PÁæ¸ï, 3£ÉÃ ªÉÄÊ£ï, Ln¯ÉÃOmï »A¨sÁUÀ fAiÉÆÃ¯Áf ¯ÉÃOmï, ¨ÉAUÀ¼ÀÆgÀÄ 560056 gÀªÀjAzÀ ²æÃ ªÀÄtÂ gÁªÀÄªÀÄÆwðgÀªÀjUÉ §gÀ¨ÉÃPÁzÀ ¨ÁQ ±ÀÄ®Ì gÀÆ. 10,00,000/- ªÀÄvÀÄÛ EvÀgÉ ¸ÉÃj MlÄÖ gÀÆ.25,30,500/- UÀ¼À£ÀÄß ªÀ¸ÀÆ° ªÀiÁqÀÄªÀ ¸ÀA§AzsÀ ¢£ÁAPÀ 15-09-2022 gÀAzÀÄ 10.00 A.M UÀAmÉUÉ ¹ÜgÁ¹ÜAiÀiÁzÀ ¥Áèmï £ÀA.1299/f-1, ªÀiÁ£À¸À gÉ¹qÉ¤ì C¥ÁmïðªÉÄAmï, £É®ªÀÄºÀr, 2£ÉÃ CqÀØgÀ¸ÉÛ, 24£ÉÃ ªÀÄÄRågÀ¸ÉÛ, UÉÆÃ«AzÀgÁd£ÀUÀgÀ, ¨ÉAUÀ¼ÀÆgÀÄ 560079 («ÄÃ¸À®Ä ¨É¯É gÀÆ.56,95,284/-) C£ÀÄß ºÀgÁdÄ £ÀqÉ¸À®Ä ¤UÀ¢¥Àr¸À¯ÁVzÉ. ¸ÀzÀj ¢£ÀzÀAzÀÄ ¨É½UÉÎ 11.00 UÀAmÉUÉ ªÉÄÃ®ÌAqÀ «¼Á¸ÀzÀ°è ºÀgÁdÄ £ÀqÉ¸À®Ä ¸ÀzÀj ¸ÀÜ¼ÀzÀ°è ºÁdjgÀ®Æ ¸ÀÆa¹zÉ."

The auction notice indicated that the 4th respondent's claim is taken

note of and auction is conducted ignoring the claim of the

petitioners. The petitioners immediately represent to the concerned

that auction should not be finalized and the representation dated

01-09-2022 reads as follows:

"UÉ,

«±ÉÃµÀ f¯Áè¢üPÁjUÀ¼ÀÄ ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀ f¯Éè, ¨ÉAUÀ¼ÀÆgÀÄ.

EAzÀ,

GªÀiÁ ¸ÀÄgÉÃ±ï PÉÆÃA. ¸ÀÄgÉÃ±ï.f ªÀÄvÀÄÛ ¸ÀÄgÉÃ±ï.f. ©£ï.¯ÉÃmï. UÀuÉÃ±ï £ÁAiÀÄUï £ÀA.212, 5£ÉÃ ªÀÄÄRågÀ¸ÉÛ, 10£ÉÃ PÁæ¸ÀÄ J£ï.f.E.J¥sï §qÁªÀuÉ, £ÁUÀgÀ¨Ás «.

¨ÉAUÀ¼ÀÆgÀÄ - 560 072.

ªÀiÁ£ÀågÉÃ,

«µÀAiÀÄ: ªÀiÁ£Àå GZÀÑ £ÁåAiÀiÁ¯AiÀÄzÀ ¥ÀæPÀgÀt ¸ÀASÉå:7580/2020 (fJA-

DgïEJ¸ï) ¢£ÁAPÀ:17-12-2020 PÀ£ÁðlPÀ ¸ÉÖÃmï PÀ£ÀÆìªÄÀ gÀ r¸ï¥ÀÆåmï jqÉæ¸Àì¯ï PÀ«ÄÃµÀ£ï ªÉÄÃ®ä£À« £ÀA.439, 440, 441/2021 DzÉÃ±À ¢£ÁAPÀ: 15-07-2021.

----

£ÁªÀÅ ªÉÄÃ®ÌAzÀ «¥ÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ vÀªÀÄä°è ªÀÄ£À« ªÀiÁrPÉÆ¼ÀÄîªÀÅzÉÃ£ÉAzÀgÉ, ªÉÄÃ®ÌAqÀ ¥ÀæPÀgÀtzÀ°è £ÁªÀÅUÀ¼ÀÄ CfðzÁgÀgÀÄ DVgÀÄvÉÛÃªÉ. ¸ÀzÀj ¥ÀæPÀgÀtªÀÅ PÉ.Dgï.PÉ.¥Áæ¥ÀðnÃ¸ï ¥ÉæöÊªÉÃmï °«ÄmÉqï ¸ÀA¸ÉÜUÉ ¸ÉÃjzÀ D¹Û £ÀA.¥Áèmï £ÀA.1299:f1 ,UËæAqï ¥sÉÆèÃgï, ªÀiÁ¸À£À gÉ¹qÉ¤ì C¥ÁlðªÉÄAmïì 24£ÉÃ ªÀÄÄRågÀ¸ÉÛ, ªÀiÁUÀr PÁqÀÄð gÉÆÃqÀÄ, ¨ÉAUÀ¼ÀÆ-560 079 DVzÀÄÝ, FUÀ ºÀgÁfUÉ §A¢gÀÄvÀÛzÉ. ºÀgÁdÄ ¢£ÁAPÀ:15.09.2022 DVgÀÄvÀÛzÉ. F ¥ÀæPÀgÀtzÀ°è ªÉÄÃ®ÌAqÀ DzÉÃ±ÀPÉÌ ¸ÀA§A¢ü¹zÀAvÉ £ÁªÀÅUÀ¼ÀÄ ¸ÀzÀj ¥ÀæPÀgÀtzÀ°è CfðzÁgÀgÀÄ DVgÀÄªÀÅzÀjAzÀ ¸ÀzÀj ¥ÀæPÀgÀtzÀAvÉ £ÀªÀÄäUÀ¼À ºÉ¸ÀgÀÄUÀ¼À£ÀÄß ¸ÉÃj¹ ºÀgÁdÄ ªÀÄÄAzÀÄªÀgÉ¸ÀÄªÀAvÉ F ªÀÄÆ®PÀ PÉÆÃgÀÄvÉÛÃªÉ. £ÀªÀÄäUÀ½UÉ C¸À®Ä gÀÆ.47,00,000-00 ®PÀëUÀ¼ÀÄ §gÀ¨ÉÃPÁVgÀÄvÀÛzÉ.

F CfðAiÉÆA¢UÉ DzÉÃ±ÀzÀ ¥ÀæwUÀ¼ÀÄ ®UÀwÛ¹zÉÝÃªÉ."

The petitioners represent that they are the beneficiaries of the

order of attachment earlier and in the order in writ petition filed by

them, re-auction was the order that was passed in their favour. The

Division Bench only directed it to be done within a time frame.

Therefore, the claims of the petitioners could not have been ignored

at all. Non-consideration of the representation drives the petitioners

to this Court yet again. The issue now is the validity of the auction

notice dated 24-08-2022. The petitioners, though in the first blush

would seem to have a right, that right is taken away by an order of

the Division Bench (supra). I deem it appropriate to quote the very

paragraph for better understanding:

"Resultantly, the Deputy Commissioner is directed to cancel the auction by passing the appropriate order. The same has not been done within 15 days from today and thereafter within three months process of auction shall be concluded and the amount shall be paid to Sri Murthy in accordance with law. With the aforesaid, the writ appeal stands disposed of."

(Emphasis supplied)

Though the order of the learned Single was in favour of the

petitioners for conduct of re-auction, the conduct of re-auction is

not disturbed by the Division Bench. But, what the Division Bench

observes is conduct of auction as is directed by the learned single

Judge but the amount to be paid to the 4th respondent. The

petitioners have accepted the said order and have not challenged it,

notwithstanding they being the parties to the writ appeal.

Therefore, as long as the direction of the Division Bench holds the

field with regard to the auction and the amount to be paid to the 4th

respondent, the petitioners cannot claim that the auction was

erroneous and contrary to law.

12. For the aforesaid reasons, finding no merit in the

petition, the petition stands rejected, reserving liberty to the

petitioners to avail all such remedies as are available in law.

Sd/-

JUDGE

nvj CT:SS