Karnataka High Court
Devanur Lake View Layout Association vs The Competent Authority on 14 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:6327
MFA No. 7731 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 7731 OF 2023 (KPIDFA)
BETWEEN:
1. DEVANUR LAKE VIEW LAYOUT ASSOCIATION
REPRESENTED BYITS PRESIDENT
OFFICE AT NO.8, SHOP NO.1
2ND STAGE, LAKE VIEW LAYOUT
BEHIDN DASTIGIR FUNCTION HALL
RAJIV NAGAR, MYSORE-570 019
...APPELLANT
(BY SRI. MOHAMMED TAHIR, ADVOCATE)
AND:
1. THE COMPETENT AUTHORITY
FOR M/S. INJAZ INTERNATIONAL
AND ASSOCIATED GROUP OF ENTITIES
3RD FLOOR, MINI V.V. TOWER
Digitally signed
PODIUM BLOCK, DR. AMBEDKAR VEEDHI,
by SHARANYA T BENGALURU-560 001
Location: HIGH REPRESENTED BY ITS COMPETENT AUTHORITY
COURT OF S.N. SUBRAMANYA
KARNATAKA
THE ASSISTANT COMMISSIONER
AGED ABOUT 56 YEARS
2. M/S. INJAZ INTERNATIONAL
A PARTNERSHIP FIRM WITH REGISTRATION
REPRESENTED BYITS
MANAGING DIRECTOR/PARTNER
SUHAIL AHMED SHARIF
NO.6, SRIVATSA ARCADE
12TH CROSS, WILSON GARDEN
BENGALURU - 560 027.
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NC: 2024:KHC:6327
MFA No. 7731 of 2023
3. SUHAIL AHMED SHARIF
S/O LATE YAKBAL PASHA
AGED ABOUT 37 YEARS
PATNER OF INJAZ INTERNATIONAL
AND DIRECTOR OF INJAZ BUILDERS
AND DEVELOPER PRIVATE LTD.,
R/O SHERIFF BUILDINGS
RIVERA APARTMENTS
BASAPPA ROAD
NEAR DOUBLE ROAD,
SHANTHINAGAR
BENGALURU - 560 027
AND ALSO AT NO.201,
GOVARDHAN APARTMENT
LAKSHMIPURA (K.R. MOHALLA),
MYSORE - 570 004.
4. MISBAUDDIN S
S/O SALAHUDDIN.K
PARTNER OF INJAZ INTERNATIONAL AND
DIRECTOR OF INJAZ BUILDERS
AND DEVELOPER PRIVATE LTD.,
AGED ABOUT 36 YEARS
NO.25, ANWAR MANZIL
1ST FLOOR, OP MECCA MASJID
BHEL LAYOUT, JAYANAGAR
BENGALURU - 560 041
...RESPONDENTS
(BY SRI. VEERESH R. BUDIHAL, ADVOCATE FOR R1)
THIS MFA IS FILED U/S.16 OF KARNATAKA PROTECTION
OF INTEREST OF DEPOSITORS IN FINANCIAL
ESTABLISHMENTS ACT, AGAINST THE ORDER DATED
21.11.2022 PASSED IN MISC.NO.718/2022 ON THE FILE OF
THE XCI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE
AND SPECIAL JUDGE FOR KPIDFE CASES, BENGALURU (CCH-
92), ALLOWING THE PETITION FILED UNDER SECTION 5(2) OF
THE KARNATAKA PROTECTION OF INTEREST OF DEPOSITORS
IN FINANCIAL ESTABLISHMENTS ACT-2004.
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MFA No. 7731 of 2023
THIS APPEAL, COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant on
I.A.3/2023 for grant of leave to file the present appeal.
2. The learned counsel appearing for the appellant
would contend that the present appeal is filed on behalf of
the Association challenging the order impugned, which is
passed under Section 5(2) of the Karnataka Protection of
Interest of Depositors in Financial Establishment Act, 2004
(hereinafter referred to as 'the Act' for short) and also a
further order was sought seeking attachment to make the
same absolute in respect of the petition schedule
properties pursuant to the interim order of attachment
passed by the Government vide Notification dated
27.12.2021 and to proceed in accordance with law.
3. The impugned order, which is in question is,
allowing the petition under Section 5(2) of the Act and
consequently by exercising the power conferred under
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Section 12(6) of the Act, the interim order of attachment
passed by the Government vide Notification dated
27.12.2021 was made absolute with regard to the petition
schedule properties. The competent authority was also
directed to take steps expeditiously for realization of the
amount from the said attached property and for equitable
distribution of the amount realized from the attached
property amongst the depositors of respondent No.1-
financial establishment in accordance with law.
4. Learned counsel for the appellant would
vehemently contend that if the said order is enforced, the
right of the persons who are in possession of the property
will be affected. The learned counsel would also submit
that the order impugned is passed without giving any
notice. The respondent No.1 and the Trial Court
proceeded with the proceedings without affording an
opportunity of impleading the Association members as are
in possession and occupant and thus necessary parties
who could be eventually affect by the impugned order. As
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such, the impugned order came to be passed in their
absence and they had no knowledge or notice of the
proceedings and impugned order. The counsel would also
submit that recently on 06.11.2023, when the impugned
order was informed through the notice of respondent No.1,
prior to this, none of the Association member was served
with any notice either before respondent No.1 or the Trial
Court. As such, it is arbitrary and unilateral action. Soon
after coming to know about the impugned order, the
aggrieved members have formed Association and
approached the court on 15.11.2023 with copy of the
application and applied for certified copy of the impugned
order. He would also contend that it is well settled
proposition of law that no person should be deprived of
right to property as embedded under Article 300A of the
Constitution of India without due process of law. It is also
sworn to in the affidavit that the members of the
Association are the bonafide purchasers of the site formed
over the schedule property and due to certain government
policies, the sale deeds are not registered in their
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individual piece of land for the residential purpose without
conversion and for this reason, the notarized sale deed in
the favour of each member of the respective site was
executed and physical possession was delivered and all
members have constructed houses from their hard earned
money and all are staying with their families. In the
absence of any notice, if any order is enforced, it affects
their right and hence, prays this court to grant the leave to
challenge the order.
5. Learned counsel appearing for the respondent
submits that this Association came into existence after
passing of the order and none of them have made any
claim before the Trial Court placing any documentary proof
and also the affidavit clearly discloses that they are in
possession based on the notarized sale deed and even the
property is also not converted for residential purpose and
the question of granting any leave in favour of the
Association does not arise and hence, prays this court to
reject the application.
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6. Having heard the learned counsel appearing for
the appellant as well as learned counsel appearing for the
respondent, the issue involved in this application is inter
se between the court and the appellant with regard to
consideration of granting of leave. But this court has to
take note of the averment made in the affidavit, which is
filed in support of the application while seeking the leave
of this court. It is stated that no opportunity was given to
the Association and it was not the party and the
Association came into existence only after coming to know
of the impugned order dated 06.11.2023. Apart from that,
question of giving notice to the Association does not arise.
If any person is aggrieved by the order, they could have
approached the court. Insofar as the contention that the
procedure has not been followed, the appellant must have
a locus to challenge the impugned order without which no
appeal can be filed in the name of the Association. It is
also to be noticed that the said Association is only formed
contending that they are bonafide purchasers. In para 7 of
the affidavit, it is contended that the appellants have
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purchased the property based on the notarized sale deed
in their favour. Each member of their respective site was
executed with document of notarized sale deed and they
have constructed the house. Taking into consideration the
said averment made in para 7, this court cannot recognize
the locus of the Association. The Association is also formed
on the basis of the notarized sale deed in favour of each
member of their respective site and when such being the
case, question of entertaining the Association to challenge
the impugned order does not arise unless there is a locus
to question the impugned order and the very contention
that no procedure has been followed cannot be considered
in this appeal since, the appeal is filed on behalf of the
Association, which came into existence only after the
proceedings has been initiated by respondent No.5 under
Section 5 and 12 of the KPIDFE Act. Hence, I do not find
any ground to grant leave of this court to challenge the
impugned order. In view of the discussion above, I pass
the following:
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ORDER
(i) The application I.A.3/2023 is rejected
and no leave is granted to file the appeal and
consequently, the appeal is dismissed.
.
Sd/-
JUDGE
SS
