Mohammed Sameer vs The Estate Officer Under Andhra Pradesh ...
2024 Latest Caselaw 3268 Tel

Telangana High Court

Mohammed Sameer vs The Estate Officer Under Andhra Pradesh ... on 20 August, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

            HON'BLE MRS JUSTICE SUREPALLI NANDA


                 WRIT PETITION No.6546 OF 2016

     ORDER:

Heard Sri G.Madhusudhan Reddy, learned counsel

appearing on behalf of the petitioners and Sri P.Sri Harsha

Reddy, learned Standing Counsel for Singareni Collieries,

appearing on behalf of respondent Nos.1 to 3.

2. The petitioners approached the Court seeking prayer

as under:

"...to issue a Writ Order or Direction more particularly one in the nature of Writ of certiorari calling the records relating to Ref No.SRP/EST/EC. No./S/39/1011/2015 dated 08.02.2016 and quash the same as arbitrary and illegal and violation of principles of natural justice and also violative of the procedure prescribed under Andhra Pradesh Public Premises (Eviction of Unauthorized occupants) Act 1968 and also Articles 14, 21 and 300A of the Constitution of India or to pass such any other order or orders as may deem fit and proper in the circumstances of the case."

3. The case of the petitioners in brief, is that petitioner Nos.2

and 3 are the owners and possessors of the property to an extent

of 1331 square yards (0.11 guntas) and 703 sq. yards

respectively situated in Sy.No.26, Theegalpahad village,

Mancherial Mandal, Adilabad District and they executed a

registered lease deed in favour of petitioner No.1 vide

No.7839/2011 dated 07.09.2011 on the file of Sub Registrar,

Mancherial for the purpose of establishment of a factory for

manufacturing of aluminum products and running the same under

the name and style of MM Aluminum Industry having obtained the

licenses from the concerned Departments. While the matter stood

thus, respondent No.1 issued notice under Section 5(1) of the

Andhra Pradesh Public Premises (Eviction of Unauthorized

occupants) Act, 1968 vide Ref.No.SRP/EST/E.C.No.S/39/

1011/2015 dated 08.02.2016 to the petitioners alleging that the

petitioners unauthorizedly occupied the company land to the

extent of 83 Sq. yards basing on the complaint of respondent

No.3. Aggrieved by the same, the present writ petition is filed.

4. Perused the record:

5. A bare perusal of the record indicates the docket

proceedings which are extracted hereinunder:

"14.03.2015:

Issued notice. Call on 20.03.2015. 20.03.2015:

Respondent No.1 & 3 present. Sri Sathish, Advocate filed vakalath for R1 & R3. Notice for R2 affixed on the door. Awaiting acknowledgment for R2. Call on 04.04.2015 for counter of R1 & R3.

04.04.2015:

Respondent No.1 & 3 present. Adv. for R1 & R3 requested for time for filing counter. R2 absent. Call on 11.04.2015 for filing counter.

11.04.2015 :

PO is visiting Hyderabad on duty. Respondent No.3 present. Adv. for R1 & 3 requested for time for filing counter. R2 absent. Call on 15.04.2015 for filing counter finally.

15.04.2015:

Petitioner Present. R1 & R3 called absent. Counter not filed. Right to file counter for forfeited. Posted for evidence. Call on 18.04.2015.

17.04.2015:

Petitioner present. R1 &R3 are present. Advocate for R1 & R3 filed vakalat for R2. Advocate filed on undertaking given by the R1 stating that the encroached land will be vacated at the time of widening of the road works. Call on 20.04.2015.

20.04.2015:

Petitioner present. Advocate for R1 to R3 present. Posted to 25.04.2015 for PW evidence. At request, call on 25.04.2015.

25.04.2015:

Petitioner present. R1 & R3 and their Advocate present. Petitioner filed evidence affidavit of P.W.1 together with three documents filed duly serving the copies to other side. At request of Advocate for R1 & R3 posted to 30.04.2015 for cross examination of PW1. Call

on 30.04.2015.

30.04.2015:

Petitioner is present. Advocate for R1 & R3 present. Advocate demanded for filing certified copies of awards filed by the P.W.1. For filing certified copies of documents, call on 08.05.2015.

08.05.2015:

Petitioner present. R1 to R3 absent. Advocate for respondents present and requested for time. At request, adjourned. Call on 16.05.2015.

16.05.2015:

Petitioner present. Advocate for the respondent No.1 to 3 present. Petitioner filed draft issues Court framed the issues. Accordingly, call on 26.05.2015 for filing and marking of documents. 26.05.2015:

Petitioner present. Respondent No.1 present and requested for time. Call on 06.06.2015.

06.06.2015:

Petitioner present. R1 present. R2 & R3 absent. Attested copies list of documents filed. Posted for cross examination P.W. evidence call on 11.06.2015. 11.06.2015:

Petitioner present. Advocate for respondent present. PO is on leave call on 20.06.2021. 20.06.2015:

Both petitioner and respondent with their Advocate present. Respondent filed a memo. Posted for counter of petitioner. Call on 25.06.2015.

25.06.2015:

Both petitioner and respondent present. Call on 30.06.2015.

30.06.2015:

Both petitioner and respondent present. Call on 06.07.2015.

06.07.2015:

Both petitioner and respondent present. Call on 11.07.2015.

11.07.2015:

Both petitioner and respondent present. Call on 25.07.2024.

25.07.2024:

Both petitioner and respondent present. Call on 04.08.2015.

04.08.2015:

PO on leave. Call on 22.08.2015.

22.08.2015:

Heard Arguments Completed on both sides. Reserved for orders 08.02.2016:

Orders pronounced."

6. A bare perusal of the impugned order dated

08.02.2016 passed under Section 5(1) of the Andhra

Pradesh Public Premises (Eviction of Unauthorized

Occupants) Act, 1968, by the respondent No.1 herein

clearly indicates that there is no discussion with regard to

the issues framed.

7. The petitioners filed memo vide its

E.R.No.8/39/1011/2015 dated 20.06.2015 and the

relevant portion of the said memo is extracted

hereinunder:

"Therefore, it is prayed the Hon'ble Court to appoint the Mandal Survey to demarcate the land to an extent of Ac.0.36 guntas in Sy.No.26 of Naspur Shivar of Mancherial Mandal of Adilabad in the interest of justice."

8. This Court vide its order dated 29.02.2016, passed in

W.P.M.P.No.8332 of 2016, granted interim direction in

favour of the petitioners observing as under:

"There shall be interim stay as prayed for, for a period of 10 weeks.

Respondents counsel undertakes to file counter within four weeks Time granted and four weeks thereafter, the petitioners shall file reply, if any."

9. A bare perusal of the record, the docket proceedings dated

29.02.2016 and the memo dated 20.06.2015 filed by the

petitioners and reply affidavit dated 25.06.2015 filed by the

respondent No.3 in response to the said memo, indicates that the

respondent No.1 passed the impugned order dated 08.02.2016

mechanically in a routine manner without referring to the issues

framed by the respondent No.1 and without adverting to the

memo dated 20.06.2015 filed by the petitioners and reply dated

25.06.2015 filed by respondent No.3 in response to the said

Memo dated 20.06.2015 filed by the petitioners.

10. The Division Bench Judgment of the Apex Court dated

20.04.2021 reported in (2021) 6 SCC 771 in M/s.

Radhakrishnan Industries Vs. State of Himachal Pradesh,

referred to Whirlpool Corporation Vs. Registrar of Trade Marks

(reported in (1998) 8 SCC 1) and further the said view having

been reiterated by a Full Bench of the Apex Court (3 Judges) in

a judgment reported in (2021) SCC Online SC page 801 in

Magadh Sugar and Energy Limited Vs. State of Bihar and Others

dated 24.09.2021 it is observed at para 28 as under:-

"28. The principles of law which emerge are that:

(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are

wholly without jurisdiction; or (d) the vires of a legislation is challenged;

(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;

(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and

(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."

This Court opines that in the present case clause (i),

(iii) (a) and (b), (vi) of the aforesaid judgment, referred

to and extracted above applies.

11. Taking into consideration the law laid down by

the Hon'ble Apex Court and in the judgment referred to

and extracted above and duly considering the submissions

put forth by all the learned counsel on record, the writ

petition is allowed, the impugned proceedings passed by

the 1st respondent dated 08.06.2016 is set aside and the

matter is remitted to respondent No.1 to reconsider the

subject issue pertaining to an order of eviction passed

against the petitioners by the 1st respondent under

Section 5(1) of the Andhra Pradesh Public Premises

(Eviction of Unauthorized occupants) Act 1968 and pass

appropriate orders on merits by giving an opportunity of

personal hearing to the petitioners and all concerned and

decide the subject issue afresh again within a period of

four(4) weeks from the date of receipt of a copy of this

order duly taking into consideration the issues framed by

respondent No.1 and also adverting to the memo filed by

the petitioners dated 20.06.2015 seeking to appoint a

Mandal Surveyor for conducting the survey of land of 0.15

gts., in Sy.No.26 for proper adjudication of the subject

issue and the reply dated 25.06.2015 filed by the

respondent No.3 in response to the memo filed by the

petitioners dated 20.06.2015 and till the respondent No.1

passes appropriate orders duly complying with the

directions issued above, within the time period stipulated

above, the respondents shall not initiate any coercive

steps against the petitioners evicting the petitioners from

land to an extent of 1331 Sq. Yards (0.11 gunts) and 703

Sq. yards, situated in Sy.No.26, Theegalpahad Village,

Mancherial Mandal, Adilabad District. The petitioners

however undertakes to cooperate with the proceedings of

the respondent No.1 and the said submission of the

learned counsel appearing on behalf of the petitioners is

also brought on record. However, there shall be no order

as to costs.

Miscellaneous petitions, if any, pending in this Writ Petition,

shall stand closed.

_____________________________ MRS JUSTICE SUREPALLI NANDA

Date: 20.08.2024.

LPD/HFM