Telangana High Court
Bajranglal Agarwal vs The State Of Telangana on 7 January, 2025
THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE J.SREENIVAS RAO
WRIT APPEAL No.1202 of 2024
AND
WRIT PETITION No.34257 OF 2024
COMMON JUDGMENT:
(Per the Hon'ble Sri Justice J. Sreenivas Rao)
This intra court appeal, namely W.A.No.1202 of 2024, has
been filed by the appellant invoking the provisions of Clause 15 of
the Letters Patent aggrieved by the order dated 08.07.2024 passed
by the learned Single Judge in W.P.No.7207 of 2024, by which the
writ petition filed by the appellant was not allowed as prayed for.
2. W.P.No.34257 of 2024 is filed by the appellant to quash the
eviction order passed by respondent No.2 dated 20.11.2024 in
Case No.A/2151/2024.
3. Heard Mr. Vedula Srinivas, learned Senior Counsel
representing Ms.Vedula Chitralekha, learned counsel for the
appellant in W.A.No.1202 of 2024 and petitioner in W.P.No.34257
of 2024, Mr.Vedula Venkata Ramana, learned Senior Counsel
representing Ms.G.Rama Manoja, learned counsel for respondent
No.3 in W.A.No.1202 of 2024 and W.P.No.34257 of 2024,
Ms. K. Mani Deepika, learned Government Pleader for Women,
Children, Disabled and Senior Citizens Department for respondent
Nos.1 and 2 in W.A.No.1202 of 2024 and W.P.No.34257 of 2024,
and Mr. Avishkar Singhvi, learned counsel representing
Mr. Mohammed Absar Ahmed, learned counsel for respondent No.4
in W.A.No.1202 of 2024 and W.P.No.34257 of 2024.
4. In W.P.No.34257 of 2024 basing on the submissions of
learned counsel for the parties, learned Single Judge passed order
for clubbing the writ petition along with the writ appeal. Hence,
W.P.No.34257 of 2024 and W.A.No.1202 of 2024 are heard
together and are being disposed of by this common judgment.
5. Brief facts of the case:
5.1. Facts giving rise to filing of this writ appeal briefly stated are
that the appellant and respondent No.4 and Mr. Girdharilal
Agarwal are the sons of respondent No.3. The appellant averred
that the subject property bearing H.No.8-2-293/82/A/1088, Road
No.55, Jubilee Hills, Hyderabad, was purchased by his father on
05.11.1988 through registered sale deed No.6277 of 1988 from the
family funds in the name of respondent No.3 and since then, the
appellant and his two brothers as well as his parents were living in
the said house, which is consisting of ground plus first floor and
his father died in the year 1992. Thereafter, the appellant,
respondent No.3 and his two brothers were living in the said
house. Respondent No.4 shifted to first floor in the year 2014 with
his family and the appellant's family and his another brother
Girdharilal Agarwal's family along with respondent No.3 were living
in the ground floor.
5.2. He further averred that respondent No.3 had executed
registered Will Deed dated 16.08.2022 bequeathing the subject
property in the names of appellant, respondent No.4 and
Girdharilal Agarwal in equal shares. While things stood thus,
respondent No.4 has taken respondent No.3 to the first floor in the
month of December 2022 and other brother of the appellant shifted
to Kaveri Hills in November, 2023 and the appellant and his family
residing in the ground floor. Respondent No.3 at the instance of
respondent No.4 executed deed of cancellation of Will dated
09.12.2022 and also executed Gift Settlement Deed on the very
same day gifting the entire subject property in favour of respondent
No.4. Thereupon, the appellant has filed suit in O.S.No.124 of
2023 before the XI Additional Chief Judge, City Civil Court,
Hyderabad, for partition of the suit property and allotment of 1/3rd
share to him and for declaration of Gift Settlement Deed dated
09.12.2022 as null and void. In the said suit, respondent Nos.3
and 4 have filed application vide I.A.No.1881 of 2023 seeking
rejection of plaint under Order VII Rule 11 of C.P.C. and the said
application was allowed, by its order dated 20.08.2024. Aggrieved
by the said order, the appellant filed C.C.C.A.No.62 of 2024 before
this Court and the same was dismissed on 20.08.2024.
Thereupon, the appellant has preferred S.L.P. and the same is
pending before the Hon'ble Supreme Court.
5.3. In the meanwhile, respondent No.3 had approached
respondent No.2 and filed application under the provisions of
Maintenance and Welfare of Parents and Senior Citizens Act, 2007
(hereinafter referred to as 'the Act') read with 21 and 22 of the
Telangana Maintenance and Welfare of Parents and Senior Citizens
Rules, 2011 (hereinafter referred to as 'the Rules') seeking eviction
from the subject property on the ground that the appellant has
been harassing and abusing her and she suffering health problems
due to his behavior. Respondent No.2 had passed eviction order on
07.03.2022 and directed the appellant to vacate the subject
property within a period of one month. Aggrieved by the said
order, the appellant filed W.P.No.2072 of 2024 by raising several
grounds including that respondent No.2 is not having jurisdiction
on the ground that respondent No.3 had executed registered Gift
Settlement Deed in favour of respondent No.4 and by virtue of the
same, she is not entitled to seek eviction of the appellant by
invoking the provisions of the Act and the order passed by
respondent No.2 is without jurisdiction.
5.4. The learned Single Judge allowed the writ petition and set
aside the order passed by respondent No.2 dated 07.03.2024 and
remitted the matter to respondent No.2 for fresh consideration with
a direction to pass orders by following the due procedure as laid
down under Rule 21(3) of the Rules within a period of 60 days from
date of receipt of copy of the order and also shall take into
consideration the subsequent developments in criminal
proceedings initiated against the appellant and also civil
proceedings initiated by him. Aggrieved by the above said order,
the appellant filed the present writ appeal.
5.5. During pendency of the writ appeal, respondent No.2 passed
order in Case No. A/2151/2024 dated 21.11.2024 directing the
appellant to vacate the subject premises which is in his possession
within a period of thirty days from the date of the order. Aggrieved
by the above said order, the appellant filed W.P.No.34257 of 2024.
6. Submissions of learned counsel for the appellant:
6.1. Learned counsel for the appellant submitted that respondent
No.2 initiated the proceedings exercising the powers conferred
under the provisions of the Act as well as the Rules basing on the
application submitted by respondent No.3, admittedly respondent
No.3 is not entitled to file application before respondent No.2
seeking eviction of the appellant from the property, which is in his
possession on the ground that she had already executed registered
gift settlement deed in respect of the entire subject property in
favour of respondent No.4. Hence, respondent No.2 is not having
authority or jurisdiction to pass order dated 07.03.2024. In such
circumstances, the learned Single Judge ought to have allowed the
writ petition as prayed for, on the other hand, learned Single Judge
rejected the contention of the appellant holding that same is
technical.
6.2. He further submitted that the appellant in spite of brought to
the notice of respondent No.2 about pendency of the writ appeal
before this Court and made a request for adjournment of the
proceedings pending before him till disposal of the writ appeal,
respondent No.2 without considering the said request passed
eviction order dated 20.11.2024 even without giving opportunity
and without following due procedure as laid down under the Rules
and the same is contrary to law and gross violations of the
principles of natural justice.
6.3. He further submitted that respondent No.2 issued notice on
05.09.2024 directing the appellant to appear before him on
13.09.2024 and accordingly the appellant appeared, however, the
hearing was postponed. Thereafter, the appellant received another
notice dated 19.09.2024 on 15.10.2024, wherein the appellant was
directed to submit explanation with relevant documents within 10
days. Pursuant to the same, the appellant's counsel submitted
letter dated 23.10.2024 informing him about pendency of
W.A.No.1202 of 2024 and requested him not to proceed the
proceedings pursuant to the notice dated 19.09.2024 till the
outcome in the pending writ appeal. However, respondent No.2
without considering the said request passed eviction order dated
20.11.2024. He further submitted that neither the appellant nor
respondent Nos.3 and 4 appeared before respondent No.2.
However, respondent No.2 simply extracting the pleadings of the
complaint, documents and earlier proceedings passed the eviction
order dated 20.11.2024 and the same is in gross violation of the
principles of natural justice.
6.4. In support of his submission, he relied upon the judgment of
the Apex Court in Carona Ltd. v. M/s.Parvathy Swaminathan
and Sons 1, Union of India and others v. Rajeev Bansal 2 and
Fiza Developers and Inter-Trade Private Limited v. AMCI
(INDIA) Private Limited and another 3.
7. Submissions of learned counsel for respondent No.3:
7.1. Per contra, learned Senior Counsel submitted that pursuant
to the orders dated 08.07.2024, respondent No.2 after following the
due procedure as contemplated under law passed eviction order on
20.11.2024. Aggrieved by the said order, the appellant has already
filed W.P.No.34257 of 2024. Hence, W.A.No.1202 of 2024 filed by
the appellant has become infructuous.
7.2. He further submitted that aggrieved by the orders of
respondent No.2 dated 20.11.2024, the statutory remedy of appeal
is provided under Rule Section 21(3)(d) of the Rules. The appellant
AIR 2008 SC 187
2024 SCC OnLine SC 2693
(2009) 17 SCC 796
without availing the alternative remedy of appeal straight away
approached this Court and filed the writ petition and the same is
not maintainable under law.
7.3. He also submitted that respondent No.3 filed application
invoking the provisions of the Act as well as the Rules seeking
eviction of the appellant from the subject property on the ground
that the appellant has harassing and abusing her and the same is
very much maintainable under law and respondent No.2 has
rightly passed the eviction order dated 20.11.2024.
7.4. In support of his contention, he relied upon the unreported
decision of the Karnataka High Court at Bengaluru in
W.P.No.1171 of 2019 (Skanda Sharath v. Asst. Commissioner
Tribunal of Maintenance and Welfare of Parents and Senior
Citizens and others).
8. Submissions of learned counsel for respondent No.4:
8.1. Learned counsel for respondent No.4 adopted the
submissions made by learned Senior Counsel appearing for
respondent No.3 and further submitted that appellant filed the writ
petition without exhausting alternative remedy as provided under
the Rules and the same is not maintainable under law and
respondent No.2 had rightly passed the eviction order.
Analysis:
9. This Court considered the rival submissions made by the
respective parties and perused the record. The specific claim of the
appellant is that the subject property bearing
H.No.8-2-293/82/A/1088, Road No.55, Jubilee Hills, Hyderabad,
was purchased by the father of the appellant with the family funds
and the same was registered in the name of respondent No.3 and
the appellant is residing in the ground floor. Respondent No.3 had
executed a registered Will deed dated 16.08.2022 bequeathing the
house property in favour of the appellant, respondent No.4 and
Girdharilal Agarwal in equal shares. Thereafter, at the instance of
respondent No.4, respondent No.3 cancelled the registered Will
Deed on 09.12.2022 unilaterally and on the very same day, she
had executed registered Gift Settlement Deed in favour of
respondent No.4.
10. At that stage, the appellant filed suit in O.S.No.124 of 2023
before the XI Additional Chief Judge, City Civil Court, Hyderabad,
seeking to set aside the Gift Settlement Deed and also for partition
of the subject house property and allot his 1/3rd share. In the said
suit, respondent Nos.3 and 4 have filed application in I.A.No.1881
of 2023 seeking rejection of the plaint and the said application was
allowed on 30.01.2024. Aggrieved by the same, the appellant filed
C.C.C.A.No.62 of 2024 and the same was dismissed on
20.08.2024. Thereafter, the appellant filed S.L.P. and the same is
pending before the Apex Court.
11. In the meanwhile, respondent No.3 filed application dated
29.01.2024 before respondent No.2 invoking the provisions of the
Act and the Rules seeking eviction of the appellant from the subject
property, in which the appellant is in occupation of ground floor,
on the ground that the appellant has been harassing and abusing
her. Respondent No.2 passed eviction order dated 07.03.2024 in
Case No.A/2151/2024 and directed the appellant to vacate the
subject house property within one month. Questioning the said
order, the appellant filed W.P.No.7207 of 2024. Learned Single
Judge of this Court allowed the said writ petition and remitted the
matter to respondent No.2 with a direction to pass orders by
following the procedure laid down under Rule 21(3) of the Rules
within 60 days. Pursuant to the said order, respondent No.2
issued notice on 05.09.2024 directing the appellant to appear
before him on 1309.2024 and accordingly, the appellant appeared
before him, however, respondent No.2 adjourned the case.
Thereafter, respondent No.2 had issued notice dated 19.09.2024
directing the appellant to submit his explanation along with
documents within a period of 10 days. According to the appellant,
he received the said notice on 15.10.2024. In the meantime, the
appellant has filed the present writ appeal aggrieved by the order
passed by the learned Single Judge to the extent that respondent
No.2 is not having jurisdiction to adjudicate the proceedings and
pass order dated 07.03.2024 basing upon the complaint of
respondent No.3 and not allowing the writ petition as prayed for. It
further appears from the record that respondent No.3 has also filed
Cross Objections on 31.10.2024 in the writ appeal on the ground of
remitting the matter to respondent No.2 and restore the eviction
order dated 07.03.2024.
12. The record further discloses that the above writ appeal came
up for consideration before this Court on 23.10.2024 and this
Court appointed Mr. G. Vidya Sagar, learned Senior Counsel, as a
Mediator to mediate the dispute between the parties on the ground
that the dispute involved in the writ appeal is between the son and
mother. Again when the matter came up for consideration on
24.12.2024, the learned Mediator submitted that the attempt to
resolve the dispute between the parties amicably has not fructified.
13. The record further reveals that pursuant to the notice dated
19.09.2024 issued by respondent No.2, the counsel for the
appellant submitted a letter on 23.10.2024 and requested
respondent No.2 not to proceed the matter till the outcome in the
pending W.A.No.1202 of 2024 by enclosing the copy of the order
dated 23.10.2024 appointing Mr. G.Vidya Sagar as Mediator.
However, respondent No.2 passed eviction order on 20.11.2024
directing the appellant to vacate the subject house premises within
30 days from the date of the order. Questioning the same, the
appellant filed W.P.No.34257 of 2024.
14. It appears from the record that pursuant to the show cause
notice dated 19.09.2024 issued by respondent No.2, the appellant
had not submitted explanation and due to pendency of the writ
appeal, the appellant requested respondent No.2 to adjourn the
proceedings till outcome of the writ appeal. Hence, this Court is of
the considered view that one opportunity should be given to the
appellant to submit explanation along with documents, if any, to
the show-cause notice dated 19.09.2024 issued by respondent
No.2.
15. It is pertinent to mention that the State of Andhra Pradesh
framed Rules, namely, the Andhra Pradesh Maintenance and
Welfare of Parents and Senior Citizens Rules, 2011, vide
G.O.Ms.No.49 dated 28.12.2011 and the said Rules were adopted
by the State of Telangana and thereafter the State of Telangana
had issued another G.O.Ms.No.40 Department for Women,
Children, Disabled and Senior Citizens (PROG.II) dated 30.12.2022
amending G.O.Ms.No.40 dated 30.12.2022.
16. It is trite law that when the authorities passed the orders
without following the principles of natural justice, a writ petition
under Article 226 of the Constitution of India is maintainable. In
Udit Narain Singh Malpaharia v. Addl. Member Board of
Revenue 4, the Apex Court by relying upon the judgment in King v.
London County Council [(1931) 2 KB 215, 243] held that:
"Wherever anybody of persons (1) having legal authority
(2) to determine questions affecting rights of subjects
and (3) having the duty to act judicially (4) act in excess
of their legal authority -- a writ of certiorari may issue".
It will be seen from the ingredients of judicial act that
there must be a duty to act judicially. A tribunal,
therefore, exercising a judicial or quasi judicial act
cannot decide against the rights of a party without giving
AIR 1963 SC 786
him a hearing or an opportunity to represent his case in
the manner known to law. If the provisions of a
particular statute or rules made there under do not
provide for it, principles of natural justice demand it.
Any such order made without hearing the affected
parties would be void. As a writ of certiorari will be
granted to remove the record of proceedings of an
inferior tribunal or authority exercising judicial or quasi-
judicial acts, ex hypothesis it follows that the High Court
in exercising its jurisdiction shall also act judicially in
disposing of the proceedings before it.
17. In D. Venkata Krishna Rao v. Government of Andhra
Pradesh Division Bench 5, the erstwhile High Court of Andhra
Pradesh at Hyderabad, after considering judgments of the Hon'ble
Apex Court as well as High Court, held that the principle that writ
would not lie if there is an effective and efficacious alternative
remedy, has mainly four exceptions. These are (i) When
Constitutional validity of the statute is challenged, (ii) Where the
impugned action is in violation of fundamental right especially
under Articles 14 and 19(1)(a), or (g) of Constitution (iii) Where the
impugned order/action is in breach of natural justice, (iv) When
challenge is to the action which is patently erroneous and ex facie
without jurisdiction. In addition to these, if a matter requires
2012 SCC OnLine AP 704
technical knowledge, which is available in the statutory appellate
forum, ordinarily, the High Court would not be inclined to exercise
discretion under Article 226 of Constitution of India.
18. In the above said judgments specifically held that alternative
remedy is not an absolute bar to maintainability of the writ
petitions, when action complained of is in violation of fundamental
rights, principles of natural justice or without jurisdiction. The
principle laid down in the above said judgments are applicable to
the case on hand on the ground that respondent No.2 had passed
impugned order without giving opportunity to the appellant to
submit explanation and documents to the notice dated 19.09.2024
and it amounts to violative of principles of natural justice.
Accordingly, the impugned eviction order dated 20.11.2024 passed
by respondent No.2 is set aside on the ground of violative of
principles of natural justice and the matter is remitted back to the
District Collector-cum-District Magistrate, Hyderabad District. It is
clarified that this Court has not expressed any opinion with regard
to the jurisdiction of the District Collector to entertain the
proceeding as it is open for the purpose of adjudicating the same in
the proceeding before the District Collector. Needless to state that
the District Collector shall adjudicate the issue with regard to the
jurisdiction without being influenced by any finding contained in
the order dated 08.07.2024 passed in W.P.No.7207 of 2024.
19. Accordingly, W.P.No.34257 of 2024 is allowed. The appellant
is directed to submit explanation to the show cause notice dated
19.09.2024 along with documents, if any, within two (2) weeks
from today and respondent No.2 is directed to pass orders afresh
after giving opportunity to the appellant and respondent Nos.3 and
4 including personal hearing in accordance with the law within a
period of six (6) weeks from thereafter.
20. Insofar as W.A.No.1202 of 2024 is concerned, the appellant
filed writ appeal aggrieved by the orders passed by the learned
Single Judge dated 08.07.2024 in W.P.No.7207 of 2024 to the
extent of holding that respondent No.2 is having jurisdiction to
adjudicate the proceedings basing on the application submitted by
respondent No.3 and not allowing the writ petition as prayed for
are concerned, respondent No.3 filed Cross Objections on
30.10.2024 to set aside the order of learned Single Judge and
restore eviction order of respondent No.2 dated 07.03.2024.
Hence, this Court is of the considered view that the cause in the
writ appeal as well as Cross Objections, if any, does not survive for
adjudication, accordingly the same are closed.
21. Accordingly, W.P.No.34257 of 2024 is allowed and
W.A.No.1202 of 2024 is closed. There shall be no order as to costs.
Miscellaneous applications pending, if any, shall stand
closed.
___________________________________
ALOK ARADHE, CJ
____________________________________
J. SREENIVAS RAO, J
Date: 07.01.2025
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