Dated This the 19Th Day of August, 2017 Before the Hon

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF AUGUST, 2017 BEFORE THE HON’BLE MR. JUSTICE A S BOPANNA WRIT PETITION Nos.3058-3073/2017 (GM-RES) BETWEEN: 1. K.C.MANJUNATH S/O SRI.CHANNAPPA GOWDA, AGED ABOUT 57 YEARS, R/AT NO.3-53-20, DWARAKANAGAR, KULAI, MANGALORE-575019. 2. ANANDA SHETTY S/O. BOMMAIAH SHETTY, AGED ABOUT 74 YEARS, R/AT NO. 3-53-23, DWARAKANAGAR, KULAI, MANGALORE 575019 3. K GEETHA W/O. DEVADAS, AGED ABOUT 53 YEARS, R/AT NO. 3-53-21, DWARAKANAGAR, KULAI, MANGALORE 575019 4. NARAYANA BHANDARY S/O. RAMA BHANDARY, AGED ABOUT 73 YEARS, R/AT NO. 3-53-21, DWARAKANAGAR, KULAI, MANGALORE 575019 5. RAMACHANDRA M KOTIAN S/O. MANJAPPA KERKERA, AGED ABOUT 58 YEARS, R/AT NO. KAVINAKALLU, KULAI, MANGALORE 575019 6. RAMESH M SALIAN S/O. MUDARA, AGED ABOUT 48 YEARS, R/AT NO. 3-11-7, 2 DWARAKANAGAR, KULAI, MANGALORE 575019 7. SMT. RAVIKALA W/O. LATE. ASHOK KUMAR, AGED ABOUT 47 YEARS, R/AT NO. 3-53-9, DWARAKANAGAR, KULAI, MANGALORE 575019 8. NAGENDRI W/O. LAKSHMAN, AGED ABOUT 52 YEARS, R/AT NO. 3-53-26, DWARAKANAGAR, KULAI, MANGALORE 575019 9. K PADMANABHARAJU S/O KRISHNASWAMY, AGED ABOUT 62 YEARS, R/AT NO. 3-53-22, DWARAKANAGAR, KULAI, MANGALORE 575019 10. B T PRAKASH S/O. THOPANNA, AGED ABOUT 49 YEARS, R/AT NO. 3-53-12, DWARAKANAGAR, KULAI, MANGALORE 575019 11. RICHARD MAXIM GONSALVESB T PRAKASH S/O LATE. CALISTUS GONSALVES, AGED ABOUT 52 YEARS, R/AT NO. 5-45, KALVAI HOUSE, ASHOKNAGAR, MANGALORE 575006 12. B T ASWATHNARAYANA S/O. THOPANNA, AGED ABOUT 47 YEARS, R/AT NO. 3-53-13, DWARAKANAGAR, KULAI, MANGALORE 575019 13. SHASHIKANT R CHEBBI S/O. RAGHAVENDRA CHEBBI, AGED ABOUT 38 YEARS, R/AT NO. 3-53-2, DWARAKANAGAR, KULAI, MANGALORE 575019 14. SURESH S/O. AITHAPPA, AGED ABOUT 63 YEARS, 3 R/AT NO. 3-53-16, DWARAKANAGAR, KULAI, MANGALORE 575019 15. SMT. M MOHINI W/O. SHYAMPRASAD, AGED ABOUT 63 YEARS, R/AT NO. 3-53-24, DWARAKANAGAR, KULAI, MANGALORE 575019 16. K B VEDAVYASA RAO S/O. LATE. K B GOPALAKRISHNA RAO, AGED ABOUT 46 YEARS, R/AT NO. 81/82, FLAT NO. 102, PARANG, BIKESIPURA, ISRO LAYOUT, BANGALORE 560061 ... PETITIONERS (BY SRI SRINIVASA K, ADV.) AND: 1. THE DEPUTY COMMISSIONER SOUTH CANARA DISTRICT, BUNDER, MANGALORE 575001 2. THE TAHSILDAR MANGALORE TALUK, MINI VIDHANA SOUDHA, BUNDER, MANGALORE 575001 3. THE DEPUTY TAHSILDAR NADA KACHERY, SURATHKAL, MANGALORE 575014 4. VELLUKUTTI U SEEMON S/O. V C ULAHANNA, CLIFADEL, KADRI HILLS, MANGALORE 575004 5. MS. TARAMATI SADANANDA PATHAK C-14, GREEN PARK APARTMENT, SALISBURY PARK, PUNE 411037, MAHARASTRA STATE ... RESPONDENTS (BY SRI K P YOGANNA, HCGP. FOR R1-3 SRI M.G. SURESHA, ADV. FOR R4 R5 IS SERVED & UNREPRESENTED) 4 THESE PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO QUASH THE PROCEEDINGS FOR PUBLIC AUCTION DATED 09.01.2017 ISSUED BY THE R-2 VIDE ANNEX-M TO THE W.P. IN SO FAR AS THE PETITIONERS ARE CONCERNED. THESE PETITIONS COMING ON FOR PRELIMINARY HEARING, IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING: O R D E R The petitioners are before this Court assailing the auction notice dated 09.01.2017 issued by respondent No.2 Tahsildar, Mangaluru Taluk impugned at Annexure-M to the petition. 2. The petitioners claim to be the permanent residents of Dwarakanagar, Kulai, Mangaluru. The property bearing Sy.No.109/7P5 measuring 0.26.15 acres and Sy.No.109-7P6 measuring 0.46 acres situate at Dwarakanagar, Kulai village, Mangaluru originally belong to M/s Seemon Pvt. Ltd. The said land no doubt was mortgaged to the State Bank of India, Mangaluru. The petitioners claim to have acquired right in respect of the said lands thereafter. It is in that view the petitioners 5 contend that the property to which they have a right could not have been brought to sale under the impugned auction notice dated 09.01.2017 (Annexure-M). Hence, the sale notice is assailed in this petitions. 3. Having taken note of the contention put forth in these petitions, it is seen that the petitioners herein were before this Court at an earlier instance in W.P.Nos.94- 102/2015 connected with W.P.Nos.10480-486/2015 with a similar contention, when a public auction notice dated 23.12.2014 was issued in respect of the very same property. This Court having taken note of the contentions through its order dated 01.10.2015 on referring to the right as claimed by the petitioners was of the view that the sale of the said land would not be justified. 4. Having taken note that the auction was being conducted pursuant to the order issued by learned Chief 6 Judicial Magistrate First Class, (JMFC) Pune in Crl. M.A. No.8092/2014, this Court had indicated that if the amount could be recovered from any other property, such proceedings could be held. Further it was indicated therein that the right of the petitioners as claimed shall also be brought to the notice of the Court of JMFC, Pune. In that circumstance the properties referred to herein cannot be brought to auction by denying the right of the petitioners as claimed by them. 5. When the matter stood thus, the impugned notification dated 09.01.2017 is issued wherein the said lands have once again been incorporated for the purpose of recovery of the amount in the very same proceedings. 6. Learned Government Advocate would refer to the communication dated 19.10.2016 addressed to the Collector, Mangaluru District from the Court of JMFC, Pune in the said case bearing Crl.M.A No.8092/2014. It 7 is therefore contended that pursuant to such order and communication issued from the Court of JMFC, Pune, the impugned auction notification dated 09.01.2017 is issued. In that light, a perusal of the communication referred to dated 19.10.2016 would indicate that the learned JMFC has not referred to the earlier direction dated 01.10.2015 issued by this Court in W.P.Nos.94- 102/2015 and connected petitions. The said order would also not disclose that in fact this order was brought to the notice of the Court below. 7. In that circumstance when the communication dated 19.10.2016 is issued in a similar manner as has been done at the first instance and without reference to the consideration made by this Court in the earlier proceedings, respondent No.2 in any event could not have issued the impugned auction notification without bringing these aspects to the notice of the Court below. 8 8. In that view, the auction notice dated 09.01.2017 (Annexure-M) is not sustainable. The same is accordingly quashed. The respondents may now bring to the notice of the Court of JMFC, Pune the earlier order dated 01.10.2015 passed in W.P.Nos.94-102/2015 and connected petitions as also the order passed herein and take appropriate action in that regard. These petitions stand disposed of in the above terms. Sd/- JUDGE akc/bms .

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