IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD WRIT PETITION No. 385/2010(GM-RES) BETWEEN:
L.AYYANNA S/O LATE. LINGAIAH AGED ABOUT 66 YEARS R/O GANGA NILAYA SIDDARUDA NAGARA, OLD TOWN, BHADRAVATHI SHIMOGA DISTRICT-577 301 ... PETITIONER (BY SRI. G.C.SHANMUKHA, ADV.) AND 1. THE ASSISTANT COMMISSIONER & SUB DIVISIONAL MAGISTRATE SHIMOGA.
2. THE DEPUTY COMMISSIONER SHIMOGA DISTRICT, SHIMOGA.
3. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES SHIMOGA SUB DIVISION SHIMOGA.
4. SRI A N NAGABHUSHAN VIDDU, SIR M.V.LAYOUT NEAR NEW BRIDGE ROAD OLDTOWN, BHADRAVATHI SHIMOGA DISTRICT.
... RESPONDENTS (BY SMT. NILOUFER AKBAR, AGA FOR R1-R3, SRI.SUHAS.S, ADV. FOR SRI. S.GANESH SHENOY, ADV. FOR R4.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN M.A.G.C.R. 186 OF 2006-07 ON THE FILE OF THE 1ST RESPONDENT. QUASH THE ORDER DT. 11.9.2007 PASSED BY THE 1ST RESPONDENT (ANNEXURE-E) & ETC.
THIS WRIT PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This petition is directed against the order dated 11.9.2017 passed by the respondent No.1 in M.A.G.C.R.No.186/2006-17 vide Annexure-E whereby the respondent No.1 has forfeited the properties belonging to the petitioner and his family members under the Karnataka Protection of Interest of Depositors in Financial Establishment Act, 2004.
2. Brief facts of the case:
The respondent No.4 has filed the case before the Assistant Commissioner, Sub-Divisional Magistrate under the provisions of Karnataka Protection of Interest of Depositors in Financial Establishment Act, 2004 (for short “the Act”) against the petitioner. On the respondent No.4 complaining the respondent No.1, he has passed the order dated 11.9.2007 vide Annexure-E and forfeited the properties of the petitioner and his family members. Hence, the petitioner has approached this Court.
3. Sri.G.C.Shanmukha, the learned counsel for the petitioner submits that the impugned order dated 11.9.2004 vide Annexure-E is contrary to the provisions of Section 3 of the Act. The Assistant Commissioner has no jurisdiction to pass the order. He further submits that the Deputy Commissioner has not submitted any report to the Government and there is no notification issued by the Government and hence, the impugned order is unsustainable. Therefore, he prays for allowing the petition.
4. Per contra, the learned counsel for respondent No.4 submits that the Deputy Commissioner has delegated the powers to the Assistant Commissioner. On the basis of the same, the Assistant Commissioner has exercised the power and passed the impugned order. hence, he prays for dismissal of the writ petition.
5. Heard the learned counsel for the parties.
Perused the records.
6. Section 3 of the Karnataka Protection of Interest of Depositors in Financial Establishment Act, 2004 reads as under:
3. Attachment of properties on default of return of deposits.-
(1) The Government or the District Magistrates in their respective jurisdiction, suo moto or on receipt of any complaint may cause investigation of a complaint or fraudulent transaction referred to in this section. The District Magistrate shall forward his report together with the complaint to the Government at the earliest.
(2) Notwithstanding anything contained in any other law for the time being in force,-
(i) where, upon complaint received from any depositors or otherwise, the Government is satisfied that any Financial Establishment has failed-
(a) to return the deposit after maturity or on demand by depositor: or (b) to pay interest or other assured benefit:
or (c) to provide the service against such deposit; or:
(ii) Where the Government has reason to believe that any Financial Establishment is acting in and detrimental to the interest of the depositors with an intention to defraud them; or (iii) Where the Government is satisfied that such Financial Establishment is not likely to return the deposits or make payment of interest or other benefits assured or to provide the services against which the deposit is received, the Government may, in order to protect the interests of the depositors of such Financial Establishments, after recording reasons in writing, issue an order by publishing it in the official gazette, attaching the money or property believed to have been acquired by such financial establishment either in its own name or in the name of any other person from and out of the deposits collected by the financial establishments, and where it transpires that such money or other property is not available for attachment or not sufficient for the repayment of the deposits, such other property of the said financial establishments, or the personal assets of the promoters, partners, directors, managers or members or any other person of the said Financial Establishments.
(3) The Government shall also notify the ad-interim order made under sub-section (2) in the Official Gazette and two newspapers having wide circulation and shall also cause to be affixed a copy of such order on some conspicuous place of the property so attached.
(4) On the publication of the order made under sub-section (2), all the properties and assets of the Financial Establishment and the persons mentioned therein shall forthwith vest in the Competent Authority appointed by the Government, pending further order from the Special Court.
7. As per the above provisions, the District Magistrate has to forward his report together with the complaint to the Government. The Government has to issue an order by publishing it in the official gazette for attachment of money or property believed to have been acquired by the financial establishment. Under Section 5(2) of the Act, the competent authority within 30 days from the date of receipt of the order made under Section 3 of the Act apply to the Special Court for further order of attachment absolute.
8. In the instant case, the respondent Nos. 1 to 3 have not produced any documents to show that there is an order under Section 3 of the Act. Without an order under Section 3 of the Act, the competent authority has no power to pass the order under Section 5 of the Act. Hence, the order passed by the respondent No.1 vide Annexure-E suffers from procedural irregularities. Hence, the same is unsustainable.
9. Accordingly, the writ petition is allowed. order dated 11.9.2017 passed by the respondent No.1 in M.A.G.C.R.No.186/2006-17 vide Annexure-E is quashed. The respondent Nos. 1 and 2 are directed to consider the complaint filed by respondent No.4 afresh and pass an order in accordance with the provisions of the Act.
Sd/- JUDGE DM