High Court · 2012

Order

The petitioner seeks a Writ of Certiorari to quash the proceedings of the 2nd respondent dated 9.11.2012 as illegal, arbitrary and in violation of principles of natural justice. Facts, to the extent necessary, are that the petitioner was allotted a wine shop, and was granted an A-4 licence to sell Indian Made Foreign Liquor and Foreign Liquor in Jodugulla Palem, Visakhapatnam. He claims to have paid Rs.65.00 lakhs towards licence fee, and to have commenced business in the premises bearing door No.1-115-1 and the abutting vacant land of an extent of 100 sq. yards for which he claims to be paying Rs.3,500/- per month as lease rent for a period of one year from 1.7.2012 to 30.6.2013. Alleging that he was being illegally evicted from the land, the petitioner hitherto invoked the jurisdiction of this Court by way of W.P.No.30063 of 2012 to declare the action of the 3rd respondent herein, in trying to dispossess him from the premises and in seeking to remove the temporary structures raised thereon, as arbitrary and illegal. This Court, by order in W.P.No.30063 of 2012 dated

25.9.2012, held that, if the petitioner had occupied Government land, proceedings had to be initiated under the A.P. Land Encroachment Act (for short ‘the Act’); a notice under Section 7 of the Act was to be

issued first; if the explanation offered thereto was not satisfactory, an order under Section 6 of the Act needed to be passed; and the petitioner could not be dispossessed except by initiating proceedings under law. The Writ Petition was disposed of directing the respondents not to evict the petitioner from the land in question without following the procedure prescribed by law. The 3rd respondent issued notice dated 1.10.2012 under Section 7 of the Act. The petitioner submitted his explanation thereto on 8.10.2012. Thereafter, the 3rd respondent passed an elaborate order dated 26.10.2012, under Section 6 of the Act, holding that the explanation submitted by the petitioner was not convincing and acceptable. The 3rd respondent ordered removal of encroachment made by the petitioner by way of establishing an iron container in Sy.No.147 of Jodugullapalem. Aggrieved by the said order of the 3rd respondent the petitioner preferred an appeal to the 2nd respondent who, by order dated 9.11.2012, rejected the appeal and upheld the orders of the 3rd respondent. It is this order of the 2nd respondent which is under challenge in this Writ Petition. Smt.P. Vijaya Kumari, Learned Counsel for the petitioner, would submit that the impugned order of the 2nd respondent is bereft of reasons; though several grounds were raised by the petitioner in the appeal, the 2nd respondent did not consider any of them; and he had, by a cryptic and non-speaking order, dismissed the petitioner’s appeal under Section 10(1) of the Act. A copy of the grounds of appeal placed before this Court would show that the petitioner has raised several grounds in his appeal, including that his lessors had preferred a revision Commissioner and Director, Survey and Settlements, Hyderabad; the revision petition was dismissed by order dated 28.7.2009; and thereafter the Chief Commissioner of Land Administration, by proceedings dated 18.9.2010, had remanded the matter to the Settlement Officer-cum-Joint Collector, Visakhapatnam directing a de-novo enquiry to be conducted and necessary action taken as per the provisions of the Estate Abolition Act, 1948 after giving reasonable opportunity to the petitioner’s lessors. Though several grounds were raised by the petitioner in the appeal preferred by him, the 2nd respondent, in the impugned order dated 9.11.2012, merely holds that, after examining the orders of the Tahsildar, Visakhapatnam, it was learnt that the petitioner had unauthorizedly encroached upon the Government land admeasuring Ac.0-04 cents covered by Sy.No.147 of Chinagadili; the local women had opposed and held agitations not to allow the petitioner to put up the wine shop in the said area; and, in view of the above circumstances, the appeal preferred by the petitioner was being rejected and the order of the 3rd respondent was being upheld. Section 10 of the A.P. Land Encroachment Act, 1905 provides for a statutory remedy of appeal against any decision or order passed by the Tahsildar under the Act. Sub-section (2) thereof confers power on the appellate authority, pending disposal of the appeal, to suspend execution of the order appealed against. The very purpose of providing a statutory remedy of appeal is to enable the person, aggrieved by the order of the original authority, to question the validity of the said order. The essential requirement for a valid exercise of appellate jurisdiction is that the appellate authority should apply his mind; examine and consider the contentions urged by the appellant; and, thereafter, decide whether or not the order of the original authority should be upheld. The validity or otherwise of the appellate authority’s order can only be examined in judicial review proceedings under Article 226 of the Constitution of India, if reasons are assigned therein. As is evident from the above referred conclusions recorded by the appellate authority, none of the contentions urged by the appellant has even been noted, much less considered and adjudicated upon. The impugned order of the 2nd respondent is a non-speaking order, and is bereft of reasons. Since the Writ Petition has not been admitted as yet, I was initailly inclined to grant interim stay of the impugned proceedings to enable the respondents to file their counter affidavits. The Learned Government Pleader for Revenue (Andhra and Rayalaseema Areas) would, however, submit that, since the subject land is Government land over which the petitioner’s lessors have no right or title and the lease itself is said to be only for a period of one year, keeping the Writ Petition pending on the file of this Court, while granting stay of the impugned proceedings of the 2nd respondent, would cause grave prejudice to the respondents; and this Court may, instead, set aside the impugned order permitting the appellate authority to pass an order afresh assigning reasons. The submission of the Learned Government Pleader merits acceptance. I consider it appropriate, therefore, to quash the order of the 2nd respondent dated 9.11.2012 as it is bereft of reasons and is a non-speaking order. The 2nd respondent shall, after taking into consideration the grounds urged by the petitioner in his appeal, pass a reasoned order thereupon at the earliest, in any event not later than four weeks from the date of receipt of a copy of this order. The Writ Petition is disposed of accordingly. No costs. ___________ 26-11-2012 Note: Issue C.C. today B/o asp