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, 2 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 3 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 4 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 5 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 6 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 7 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 8 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 1 AIR 2008 SC 187 2 2024 SCC OnLine SC 2693 3 (2009) 17 SCC 796 9 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 10 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 11 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 12 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 13 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.
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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 4 AIR 1963 SC 786 15 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 5 2012 SCC OnLine AP 704 16 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 17 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 18 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 mar