IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 8TH DAY OF JUNE 1998 BEFORE THE HON’BLE MR.JUSTICE BS.SREENIVASA RAO WRIT PETITION NO.16013 OF 1998 Between 1. U.Mohan Rao, aged 65 years, 5/0 USrinivasa Shanbhogue, 1/177, Behind Apoorva Complex, Vibbudamanyanagar, UDUPI, 2. ULakshman Rao, since dead by irs. a) Smt.Shaiini L.Rao, Major, W/o U.Lakshman Rao. b) U.Shaila Rao, aged 30 years, D/o ULakshman Rao, c) U.Santhosh Kumar Rao, aged 28 years, S/o U.Lakshman Rao, d) USampath Kumar Rao, aged 26 years, S/a ULakshman Rao e) Sm USudha Rao, aged 26 years, 0/0 U.Lakshman Rao, f) WSudheer Rao, aged 24 years, Sb ULakshman Rao Petitjoers 2(a) to 2(f) are residing at No.1/22, D.N.Nagar, JJ’.Road, ndheri (W), Bombay 400 053, 3. U..Vasudeva Rao, aged 55 years, Si’o U.Srinivasa Shanbhogue, 4. URadhabai, aged 58 years, D/o Usrinivasa Shanbhogue, Panchamahal Mulki. S. U.Nalini Bai, aged 52 years, D/O USrinivasa Shanbhogue, Syndicate Bank, Divisional Office, D.O.Bellary. (Petitioners I to 4 are also represented by the 5th petitioner who is their General Power of Attorney Holder). . PETITIONERS (By Sri P.S.Manjunath, Adv.,) AND 1, State of Karnataka, by its Chief Secretary to Government, Vidhana Soudha, Bangalore - 560 001. 2. The Assistant Commissioner & Sub—Divisional Magistrate, Mangalore Sub-Division, Manga lore, (S .K .District). 3. Smt.Wilhelmina Gretta, D/o Late Alex Karkada. Kambla Cross Road, Barks Garden, Mangalore — 575 003. 4. 8,Prabhakara, Sb Shankar Ram Acharya, Kambala Cross Road, Barks Garden, Mangalore - 575 003. * * RESPONDENTS (By Sri B.N,Pinto Adv, for R-3 and R—4, Sri H Hanumantharayappa HCGP for R-1 & R-2) This Writ Petition is filed under articles 226 arid 227 of the Constitution of India praying to quash the order of R—2 vide AnnexM dated 7-4-1998 This Writ Petition coming on for hearing this day the court made the following :- ORDER Government Pleader is directed to take notice for R-1 and R—2. This Writ Petition is filed under articles 226 and 227 of the Constitution of India by the Writ Petitioner to quash the order of the second respondent Assistant Commissioner and Sub—Divisional Magistrate, Mangalore Sub-Division Mangalore dated 7—4-1989 bearing NoRDC 3/79-80 and ROC 1/97-98 at AnnexD. Heard the Counsel for the Writ Petitioner and the Government Pleader for Respondents 1 and 2 and the Counsel for R—3 and R—4. —4 2. The brief facts of the case are that after coming into force of Karnataka Debt Relief Act the second respondent rided the business premises of Srinivasa Shabbogue on 18-7-1976 and on 19—7-1976 and seized ornaments and other articles and also gold ornaments from the lockers of the Corporation Bank Brnahc at Mulki on 20—7—1976 under Mahazar dated 20—7-1976 as per AnnexA, the copy of the Mahazar, The second respondent distributed the gold ornaments to about 45 persons. Challenging the validity of the seizure and distribution petitioners’ father Srinivas Shanbhogue filed b3PNo.S461/91 before this Court which was allowed by this Court and the copy of the judgment is as per Annex8, but did not order restitution of articles already returned to 45 persons. The third respondent filed Writ Petition No.11634/97 before this Court making the first and second respondents as the parties to the proceedings seeking direction for immediate enquiry and disposal of her claim in RDC NoA/7677 which was pending before the second respondent. The petitioners’ father USrinivas Shanbhogue or his legal representatives were not made parties to the said writ petition. This Court in U.P.No.11634/97 by its order dated 10-6-1997 directed the sec.ond respondent to dispose of the claim made by the third respondent within 3 months after issue of notice to the Writ Petitioner and other interested parties. The copy of the order is as per Annex.C. Aggrieved by the said order of the Single Judge in W.P.No.5467/79, Writ Appeal No.978/96 was filed and another Writ Appeal was also filed in W.A..1910/93 with respect to the order passed for return of the remaining seized articles. The order passed in the Writ Appeal is as per Annex.D. It has been directed in the said order that the respondents in that Writ Petition shall make over articles seized which are admittedly in the Treasury to the legal representatives of the Writ Petitioner within 30 days from the date of that order. 3. The third respondent and fourth respondents filed objections before the second respondent for the return of the articles which had been ordered by the Court. Alongwith their objections they filed schedule of the articles belonging to the original debtors alleged to be original debtors which have been pledged with Srjnivas Shanbhogue, Copies of the objections as per Annexures E and F. The petitioner filed her objections to the Claim Petitions of the third respondent and fourth respondent as per Annex,G and H respectively and the main dispute was that the articles shown in the objections had not been pledged and they do not find a mention in the Mahazar at Annex.A. Pursuant to the orders of this Court dated 7—4-1997 WA910/93 c/w 978/96 the second respondent returned to the petitioner the balance of the seized articles as per Mahazar dated 20—11-1997 and the copy of the said Mahazar is as per nnexJ. In the said mahazar also, articles claimed by the third respondent and the fourth respondent are not to be found is the contention of the present Writ Petitioner, The third respondent passed the order as per AnnexM dated 7-4-1998 in ROC 3/79-80 and 1/97-98 directing to return all. 13 gold ornaments mentioned in the schedule to the order which has been assailed in this Writ Petition by the petitioner, 4. When it has been specifically contended by the petitioner before the second respondent that the gold ornaments mentioned in the objections ennumerated in the applications of ‘ —7 - IA.III and IAIV as per AnnexsE and F are not available and they do not find an entry in the Mahazar dated 18—7-1976 19—7—1976 and 20-7-1976 as per AnnexA and also in the Mahazar dated 20—11-1997 as per Annx.J. Still the third respondent held that the petitioner has failed to prove that the articles claimed by the third respondent and fourth respondent are not to be found in the list of jewels returned to the petitioneras per the orders of this court in WAl91O/93 c/w W.A978/96. It is contended by the Counsel for the Writ Petitioner that the second respondent has failed to note since both the list of articles seized on 18-7-1976, 19—7-1976 and 2O7-l976 and list of articles returned as per Court’s order are already with the second respondent and if the articles claimed by the respondents 3 and 4 are not to be found in either of the lists the question of proving the negative by the petitioner that the articles claimed by the petitioner had not been pledged does not arise and the order passed to produce articles before the second respondent is not proper As it is seen from the order passed by the second respondent, on 16—3-1998 as the petitioner was not absent order has been passed / which has been challenged before this court with the list of articles as per the Annexed Schedule to be produced before the second respondent by the Writ Petitioner 5, The main grievance ot the Counsel tor the Writ Petitioner is that without verification and holding proper enquiry and without giving opportunity to the Writ Petitioner the order has been passed by the second respondent which is against the principles of natural justice. 6. In the circumstances, the order passed by the second respondent Assistant Commissioner Sub—Divisional Magistrate, Mangalore Sub-Division dated 7-4-1998 in NoRDC 3/79—80 and 1/97-98 as per AnnexM is hereby set aside and the matter is remitted back to the second respondent to hold fresh enquiry giving opportunity to the Lirit Petitioner and also Respondents 3 and 4 and to consider the objections and the contentions of the both parties and to dispose of the matter in accordance with law. 1) 000 0 0rt