Karnataka High Court
Bindu vs The State Of Karnataka on 16 January, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
WP No. 15581 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 15581 OF 2022 (GM-RES)
BETWEEN:
BINDU,
AGED ABOUT 43 YEARS,
W/O. LATE VOLLI MOHAMMED ASLAM,
NO.5-66-3, R.J.PINTO COMPOUND,
SIRLAPADPU, KULSHEKARA,
MANGALURU, DK-575005.
...PETITIONER
(BY SRI AJAY PRABHU M., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
Digitally signed REPRESENTED BY
by PADMAVATHI THE PRINCIPAL SECRETARY,
BK DEPARTMENT OF INFRASTRUCTURE
Location: HIGH
COURT OF DEVELOPMENT AND PORT AND
KARNATAKA INLAND WATER TRANSPORT,
VIKASA SOUDHA, BENGALURU-560001.
2. THE PORT OFFICER,
DEPARTMENT OF INFRASTRUCTURE DEVELOPMENT
AND PORT AND INLAND WATER TRANSPORT,
OLD PORT, MANGALURU-575001.
... RESPONDENTS
(BY SRI B.V.KRISHNA, AGA)
-2-
WP No. 15581 of 2022
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED NOTICE IN KRA.SAM.MMD/CR-50/2021-22 DATED
04.02.2021 PASSED BY R2 AS PER ANNEXURE-A AND
CONSEQUENTIALLY, DIRECT THE R2 TO CONSIDER
APPLIACTION DATED 26.11.2021 FILED BY THE PETITIONER
AS PER ANNEXURE-B MENTIONED IN THE REFERENCE NO.1 OF
IMPUGNED NOTICE DATED 04.12.2021 AND ETC.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question order dated 4-12-2021 passed by the 2nd respondent declining to transfer the sailing vessel in to her name and has sought for consequential direction by issuance of a writ in the nature of mandamus directing the 2nd respondent to consider her application for transfer of sailing vessel in to her name. -3- WP No. 15581 of 2022
2. Heard Sri Ajay Prabhu M., learned counsel appearing for the petitioner and Sri B.V.Krishna, learned Additional Government Advocate appearing for the respondents.
3. Brief facts that lead the petitioner to this Court in the subject petition, as borne out from the pleadings, are as follows:-
The petitioner claims to be a resident of Sirlapadpu, Kulshekara, Mangalore and belongs to Hindu religion. The religion is emphasized for the fact that she gets married to one Volli Mohammed Aslam, a man belonging to different religion under a Special Marriage Act, 1954 on 8-06-2012. A certificate of such marriage is also appended to the petition. The husband of the petitioner owned a sailing vessel and was into the business of marine supplies being a partner in Hydraulic Mobile Crane with one Mohammed Shariff. It is the claim of the petitioner that since the date of marriage i.e., 8-06-2012 she was residing with her husband and the husband was not allowed in the house of his parents as he married the petitioner who is from a different religion. On 20-06-2021 the husband of -4- WP No. 15581 of 2022 the petitioner dies succumbing to COVID-19. A death certificate to that effect is also appended to the petition. After the death of the husband of the petitioner, the petitioner made an application before the concerned authority for transfer of ownership of the crane and the same was transferred to the name of the petitioner based upon no objection given by the partner Mohammed Shariff. Every other property belonging to the husband of the petitioner was transferred in the name of the petitioner.
4. The petitioner then makes an application to transfer the sailing vessel owned by her husband which was duly registered under the Merchant Shipping Act, 1958. The petitioner was not allowed such transfer on account of the son of one of the sisters of the deceased husband had submitted a representation to the registering authority in the name of one Volli Obeidulla aged 85 years objecting to any such transfer. The 2nd respondent/competent authority, who was to effect such transfer, rejected the transfer in terms of the impugned order 04-12-2021 on the ground that there were objections for -5- WP No. 15581 of 2022 transfer of the said vessel. It is this rejection that drives the petitioner to this Court in the subject petition.
5. The learned counsel appearing for the petitioner submits that on the strength of marriage certificate of the petitioner with the deceased all the other properties that were held in the name of the deceased have been transferred in favour of the petitioner. It is only this vessel that was declined to be transferred on an imaginary objection of one Volli Obeidulla, father of the deceased. He would contend that the subject vessel also is to be transferred in the name of the petitioner.
6. On the other hand, the learned Additional Government Advocate representing the respondents who has filed his statement of objections would contend that all other properties having been transferred is of no avail as there was no objection from any quarter during those transfers. But, when the transfer was sought for the subject vessel, Volli Obeidulla, the father of the deceased had objected to the same contending that it should belong to the family and not to anybody else. It is -6- WP No. 15581 of 2022 because of this the Competent Authority had directed that legal heirship be decided before the competent Court of law and then only a transfer could be made. He would contend that no fault can be found with the impugned order.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
8. The afore-narrated facts are all borne on record. The petitioner is the wife of one Volli Mohammed Aslam. According to the marriage certificate, the two get married on 08-06-2012 under the Special Marriage Act and the husband dies succumbing to COVID-19 on 20-06-2021. All the properties as contended by the learned counsel for the petitioner have been transferred in the name of the petitioner including the crane in which the husband of the petitioner was a partner. Likewise all other policies and documents now stand in the name of the petitioner. The issue in the lis is with regard to two vessels one sailing vessel MNG-418 registered in the Port of Mangalore and the other vessel CLR 196 registered in the Port of Cuddalore. -7- WP No. 15581 of 2022 The vessel, insofar as it was registered in the port of Cuddalore is concerned, it is transferred in the name of the petitioner. Likewise, the application filed before the 2nd respondent for transfer of vessel MNG-418 is turned down on the ground that there was no clarity of legal heir of the deceased husband. The reason for rejection of transfer is, one Volli Obeidulla has filed objections for such transfer. The 2nd respondent, prior to passing of the order of rejection, ought to have conducted a preliminary enquiry, in the least, issued notice to the petitioner seeking summoning of documents in support of her claim and also brought to her notice with regard to the objection and then should have passed an order either rejecting or accepting the application for transfer.
9. It is not in dispute that every other property including a vessel which was registered in Cuddalore port in Tamilnadu has been transferred in the name of the petitioner. It was wholly unwarranted for the 2nd respondent to have directed the petitioner to approach a Court of law to declare herself to be the legal heir of her husband in the teeth of all other documents of properties owned by her husband being -8- WP No. 15581 of 2022 transferred in the name of the petitioner. May be they have been transferred on account of no objection and the objection in the case at hand is rebuttable if only an inquiry had been conducted prior to passing of the order by issuance of notice to the petitioner.
10. In the light of the impugned order being in ignorance of all other orders passed and in violation of the principles of natural justice, inasmuch as the petitioner was not called upon to produce the defence qua the objections filed prior to rejection of application for transfer, the matter requires re- consideration at the hands of the 2nd respondent and passing of order after looking into all the documents of transfer made in favour of the petitioner, which shall however remain subject to any declaration by a competent Court of law.
11. For the aforesaid reasons, I pass the following:
ORDER
(i) The Writ Petition is allowed in part. -9- WP No. 15581 of 2022
(ii) The impugned order dated 04.12.2021 passed by the 2nd respondent stands quashed.
(iii) The matter is remitted back to the 2nd respondent to examine all the documents that are produced by the petitioner or would be produced in justification of her claim for transfer of the vessel.
(iv) The petitioner is at liberty to produce all the documents in justification of her claim. The 2nd respondent shall consider the same and pass appropriate orders in accordance with law, bearing in mind the observations made in the course of this order, within 8 weeks from the date of receipt of a copy of this order, if not earlier.
Sd/-
JUDGE BKP List No.: 1 Sl No.: 52