Karnataka High Court
Aminabi Kom Gousemodinsab Katagi vs The Deputy Commissioner on 29 March, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 84729 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 84729 OF 2013 (GM-RES)
BETWEEN:
1. SMT.AMINABI KOM GOUSEMODINSAB KATAGI
AGE: 90 YEARS,
OCC: HOUSEHOLD WORK
R/O.LAXMESHWAR DESAIBAN
TQ: SHIRHATTI,
DIST: GADAG
2. ABDULKAREEM S/O. GOUSEMODINSAB KATAGI
AGE: 70 YEARS
OCC: BUSINESS
R/O.LAXMESHWAR DESAIBAN
TQ: SHIRHATTI, DIST: GADAG
3. SMT.NAGAMABANU KOM IMAM JAFFAR KILLEDAR
AGE: 65 YEARS
OCC: HOUSEHOLD WORK
R/O. SAVANUR KAMALBANGDI
TQ: SAVANUR, DIST: HAVERI
4. SMT.SALEEMABANU KOM IMAMSAB VEERAPUR
SHIVAKUMAR AGE: 60 YEARS
HIREMATH
OCC: HOUSEHOLD WORK
Digitally signed by
SHIVAKUMAR
R/O. RAJIV GANDHINAGAR,
HIREMATH
Location: Dharwad TQ and DIST: DHARWAD
Date: 2022.04.01
14:17:02 +0530
5. SMT.SHAMIMBANU KOM SHAFIQAHAMED
DHARWADKAR
AGE: 57 YEARS
OCC: HOUSEHOLD WORK
R/O. MANKILLA, DHARWAD
6. SMT.SHAHEENBANU KOM IMAMJAFAR MUJALE
AGE: 55 YEARS, OCC: HOUSEHOLD WORK
R/O. MANKAN GALLI, LAXMESHWAR,
TQ: SHIRHATTI, DIST: GADAG
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WP No. 84729 of 2013
7. SMT.AAHIDABANU KOM NAZAEERAHAMED GUDI
AGE: 53 YEARS
OCC: HOUSEHOLD WORK
R/O. LALSAKATTA, SAVANUR
TQ: SAVANUR
DIST: HAVERI
8. SMT.TABASUMABANU KOM BABUSAB GADI
AGE: 51 YEARS
OCC: HOUSEHOLD WORK
R/O. YALWATTI, TQ: SHIRAHATTI
DIST: GADAG
9. SMT.BIBI BASERA KOM IBRAHIMSAB ATTAR
AGE: 49 YEARS
OCC: HOUSEHOLD WORK
R/O. NEAR TOLL NAKA
DHARWAD
10. ILLIYAS AHAMED S/O. GOUSEMODINSAB KATAGI
AGE: 35 YEARS
OCC: NIL
R/O. MAKANGALLI, LAXMESHWAR
TQ: SHIRHATTI, DIST: GADAG
...PETITIONERS
(BY SRI. AHAMED ALI J RAHIMANSHA & SMT. SUMANGALA A.
CHAKALABBI, ADVOCATES)
AND:
1. THE DEPUTY COMMISSIONER
GADAG DISTRICT, GADAG
2. THE TAHASILDAR
SHIRHATTI TALUK, SHIRHATTI
DIST: GADAG
3. GOUSEKHAN S/O. FAZALKAHN PULLI
AGE: 55 YEARS, OCC: BUSINESS
R/O. MAKANGALLI, LAXMESHWAR
TQ: SHIRHATTI, DIST: GADAG
4. SHOUKATSAB S/O. MAHBUBSAB MULGUND
AGE: 48 YEARS, OCC: AGRICULTURE
R/O. WARD NO. 11, LAXMESHWAR TQ:SHIRHATTI,
DIST: GADAG
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WP No. 84729 of 2013
5. MOHAMMED ASIF S/O. GOUSEMODINSAB KATAGI
AGE: 37 YEARS, OCC: BUSINESS
R/O. LAXMESHWAR DESAIBAN TQ:SHIRHATTI,
DIST: GADAG
...RESPONDENTS
(BY SRI.SHIVAPRABHU HIREMATH, AGA FOR R1 & R2;
SRI. LAXMAN T. MANTAGANI, ADVOCATE FOR R3 & R4;
SMT. BHARATI S. HANAGANDI, ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO: I) CALL FOR
THE RECORDS PERTAINING TO AUCTION OF SUIT PROPERTIES
AS PER ANNEXURE-A(5). II) QUASH THE ORDER OF THE
ATTACHMENT OF SUIT PROPERTIES DATED 03.08.2005 AS PER
ANNEXURE A TO (A1) AND AUCTION SALE DATED 12.02.2008 AS
PER ANNEXURE A(5) & FURTHER ENTRIES IN R OF R AS PER
ANNEXURE A(6) ANNEXURE 'C', D(1) AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioners are before this Court seeking for the following reliefs:
i) Call for the records pertaining to auction of suit properties as per Annexure-A(5).
ii) Issue a writ of certiorari to quash the order of the attachment of suit properties dated 03.08.2005 as per Annexures - A to A1 and auction sale dated 12.02.2008 as per Annexure A(5) & further entries in R of R as per Annexure A(6) annexure 'C', D(1).
iii) Issue writ in the nature of mandamus directing the respondent Nos.1 & 2 to enter the name of petitioners No.1 to 10 and respondent No.5 in R of R & other record of suit properties.
iv) Issue such other orders or directions as this Hon'ble court deems fit be granted in the interest of justice.
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2. The grievance of the petitioners is that, due to non appearance of petitioners No.1 and 2 in Miscellaneous Case No.174/2005 (S.C.No.26/2005) pending before the Principal Civil Judge (Junior Division) and Principal JMFC, Laxmeshwar, the property covered under RS No.45/1 measuring 11 Acres 38 Guntas, situated in Bastiban Gram, Laxmeshwar and a house bearing CTS No.1016 and 1015 situated in Desaiban, Laxmeshwar, were attached and brought to auction, which came to be purchased by respondents No.4 and 5.
3. The petitioners are before this Court contending that the petitioners No.1 and 2 were not in fact absconding, but were wrongly shown as absconding. They were residing in the same address as given in the criminal proceedings. The property which was sold could not have been sold since they were not absconding. Apart there from, it is submitted that the property is a joint family property of petitioners No.1 to
10. The petitioners could not take any action to challenge the attachment on an earlier occasion, since petitioners No.1 and 2 are aged persons and petitioner Nos. 2 to 9 are -5- WP No. 84729 of 2013 women and petitioner No.10 is also accused in the said proceedings, who was in custody. On these grounds it is contended that the prayer sought for are required to be granted.
4. Per contra, Sri. Shivaprabhu Hiremath, learned AGA, submits that, due procedure under Sections 82 and 83 of the Criminal Procedure Code have been followed. Firstly petitioners No.1 and 2 have been declared as absconding and proclaimed to be offenders and thereafter the property was attached by the Deputy Commissioner and the Deputy Commissioner directed the sale of properties in terms of Section 83 of the Criminal Procedure Code. He submits that, if at all there are any objections to the attachment, the same ought to have been raised within a period of six months from the date of attachment in terms of Section 84 of the Criminal Procedure Code. The same not having been raised within the said period of six months, but raised after a period of 5 years of the sale, the same is not maintainable and cannot be adjudicated now, since the attachment occurred on 03/08/2005 and the sale occurred on 12/02/2008 and -6- WP No. 84729 of 2013 thereafter the purchaser has been put in possession, who is in occupation of the Same.
5. Heard Sri. Ahamed Ali J. Rahimanshah, learned counsel for the petitioners, Sri. Shivaprabhu Hiremath, learned AGA for respondents No.1 and 2, Sri. Laxman T. Mantagani, learned counsel for respondents No.3 and 4 and Smt. Bharati S. Hanagandi, learned counsel for respondent No.5. Perused the records.
6. The only contention of the petitioners is that, petitioners No.1 and 2 were not absconding and that the properties attached and sold were the joint family properties of petitioners No.1 to 10 and respondent No.5.
7. There is no particular challenge to the proclamation and of attachment of the properties inasmuch as properties were attached on 03/08/2005. In terms of Section 84 of Criminal Procedure Code, any objection to the attachment has to be made within a period of six months from the date of attachment by any person, even the proclaimed person, if he or she has any right in the property. In the present case, the -7- WP No. 84729 of 2013 proclaimed persons are admittedly having right in the property along with certain others.
8. Thus, it is the bounden duty on the part of the petitioners to have raised objection within a period of six months from the date of attachment as required under section 84 of the Criminal Procedure Code. The same not having been done, the auction sale was conducted on 12/02/2008, the auction purchaser was put in possession of the properties and it is only in the year 2013 that the writ petition was filed i.e., after five years of the sale.
9. In view of the above, I am of the considered opinion that the petitioners cannot be permitted to raise this issue after such a lapse of time without any reasonable excuse. The same not being in conformity with section 84 of the Criminal Procedure Code, the said objections are rejected.
10. Consequently the writ petition is also dismissed.
Sd/-
JUDGE gab