Allowed

Today Tappers Cooperative Society, Khammam, v. Government of a.P., Rep. by Principal Secretary

Telangana HC19 Sept 2014WP/9018/2007

Case brief

AI extract

What is this about?

The Court set aside an amounting order because it was passed without speaking orders, disregarded earlier directions to consider review of power to modify orders, and failed to adhere to principles of natural justice regarding rental fixation in accordance with established judicial precedents.

What did the court decide?

Impugned order dated 14.03.2007 set aside. Matter remanded to second respondent to fix rentals in accordance with earlier court directions within three months after giving opportunity of hearing.

Today Tappers Cooperative Society, Khammam, Vs… — Landlord and Tenant | Telangana HC (2014)

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THE HON’BLE SRI JUSTICE A. RAMALINGESWARA RAO WRIT PETITION No. 9018 of 2007

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ORDER:

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Heard learned counsel for the petitioner and learned Government Pleader for respondents.

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2. This writ petition was filed challenging the order of the second respondent passed in R.C.No.456/2001/DCW/C1 dated 14.03.2007 with regard to fixation of rentals of the petitioner-society from the year 1988-89 onwards.

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3. Though the case of the petitioner underwent several rounds of litigation on the same issue but by virtue of the order passed by the second respondent in the present writ petition, this Court is left with no other alternative except to set aside the impugned order and remand the matter to the second respondent for fresh consideration keeping in view the earlier orders passed by this Court. Though the order passed by the second respondent narrates all the facts, he misconstrued the earlier orders of this Court and did not comply with the earlier orders and passed the present order under total misconception of law.

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4. The writ petitioner earlier filed W.P.No.4987 of 1992 contending that the increase in rental shall be based on Rs.39,050 and not more while fixing the rentals, and the plea of the petitioner was accepted by a learned single

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Judge as the cause was covered by the judgment of the learned single Judge in W.P.No.12039 of 1992 dated 22.09.1992 and confirmed by the Division Bench by order dated 08.09.1993 in W.A.No.1504 of 1992. Against the said order of the learned single Judge in W.P.No.4987 of 1992, the department carried the matter in appeal in W.A.No.954 of 1994 and this Court by order dated 29.12.1995 directed the Commissioner of Excise to issue notice to the writ petitioner and after enquiry, adopting the mode of computation on the same analogy of TCS situated within the local area of municipalities of Kurnool, Mahabubnagar, Warangal, Guntakal, Karimnagar, Eluru, Nizamabad and Adoni. In pursuance of the said direction, when the Deputy Commissioner for Prohibition and Excise, Warangal, passed an order dated 24.05.2001 confirming the order passed by Excise Superintendent, Khammam, fixing the rentals payable for the year 1991, the petitioner again approached this Court by filing W.P.No.11255 of 2001 and the order of the Deputy Commissioner dated 24.05.2001 was set aside and he was directed to pass orders strictly in terms of the judgment of the Division Bench in W.A.No.495 of 2001 and W.P.No.5530 of 2001 dated 09.04.2001. The Division Bench of this Court disposed of W.A.No.495 of 2001 and W.P.No.5530 of 2001 on 09.04.2001 filed by the petitioner herein holding as follows:

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“From a perusal of the impugned order, it does not

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appear that the same is supported by any reason. The learned Government Pleader states that the appellant had preferred an appeal there against, which has also been dismissed. It is now a well settled principles of law that in a matter of this nature where the appellant contends that it was liable to pay the monthly rental only to the extent of Rs.52,000/- per month, it was burdened with a liability of more than Rs.79 lakhs, we are of the opinion that the 2^nd respondent herein ought to have passed a speaking order. It is now a well settled principles of law that assigning of reasons is a part of principles of natural justice. As it appears that one of the contentions raised by the appellant herein to the effect that the State had no power to review its earlier orders had not been considered at all and furthermore, it does not appear as to why the aforementioned memos dated 02.07.1998 and 01.09.1998 under which licence fee has been fixed in relation to the persons similarly situated in other Districts, having not been adhered to the impugned order cannot be sustained which is set aside accordingly. The 2^nd respondent herein shall give another opportunity of hearing to the appellant herein and pass appropriate order in accordance with law at an early date.”

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5. The Division Bench in the aforesaid order directed the authority to consider the aspects (1) with regard to the power of the State to review its earlier order as the order does not disclose why memos dated 02.07.1998 and 01.09.1998 under which the licence fee has been fixed in relation to the persons similarly situated in other Districts were not followed, and (2) when the liability of the petitioner is to the extent of Rs.52,000/- per month,

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whether it can be burdened with a liability of more than Rs.79 lakhs. As already stated above, the said order of the Division Bench was considered by the learned single Judge in W.P.No.11255 of 2001 dated 22.01.2007 and the order of the Deputy Commissioner dated 25.04.2001 was set aside to consider afresh strictly in terms of the above order of the Division Bench. Now the second respondent passed the impugned order holding as follows:

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“The Hon’ble High Court of A.P., Hyderabad in W.P.No.11255 of 2001, dt. 22.1.2007 has issued orders directing the Dy.Commissioner of Prohibition and Excise, Warangal:-

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i) to pass a reasoned order after considering the issue whether the state had power to review its earlier orders, dated 9.4.2001.

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ii) to give an opportunity of hearing the appellant and pass a speaking order.

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iii) to pass fresh orders in accordance with law strictly in terms of judgment of the division bench in W.A.No.495 of 2001 and W.P.No.5530 of 2001 dated 09.04.2001.

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Vide reference 9^th cited the President TCS Khammam has submitted a representation, dt. 21.2.2007 with a request to clarify whether there is any specific statutory power to review its revision orders passed U/s 64 of A.P. Excise Act.

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With regard to (i) above and as raised by the President TCS Khammam in his representation it is informed that Under Section 64 of A.P. Excise Act reads that “The Government may, either suo motu or on an application call for and examine the records of any officer in respect of any decision, order, or other

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proceedings made under this Act, including those relating to the grant, issue or refusal of a licence, or permit, for a purpose of satisfying themselves as to correctness, legality or propriety of any such decision or order as to the regularity of such proceedings, and if in any case, it appears to them that such decision, order or proceedings should be modified, annulled, reversed or remitted for reconsideration they may pass orders accordingly.”

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Provided that no order adversely affecting any party shall be passed under this section unless he has been given an opportunity of making his representation.

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It can be observed from the contents of Section 64 of A.P.Excise Act that the Government is empowered to withdraw the orders issued by them and in the instant case in their Memo No.84697/ExII/I/98, Dt.14.12.2000 have withdrawn the same in accordance with law.

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With regard to (ii) above the Petitioner has been given an opportunity of hearing of the case and the same was heard on 14.3.2007.

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With regard to (iii) above the representation of the President, TCS Khammam has been examined in accordance with the judgment of the Divisional Bench in WP No.495 of 2001 and WP No.5530/2001, dt. 9.4.2001.

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From the above the President TCS Khammam has to pay an amount of Rs.79,12,695/- as reported by the Prohibition and Excise Superintendent, Khammam in his Cr.No.2345/92/Ex/B3, dt. 12.03.2007.

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Thus, finally the representation filed by the PTCS, Khammam is disposed off accordingly.”

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6. With regard to the first point, he stated that in Memo No.84697/Ex-II/I/98 dt. 14.12.2000, the government withdrew its earlier orders dated 02.07.1998 and since the government is empowered to withdraw its orders, the withdrawal is in accordance with law.

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7. The second respondent overlooked the fact of direction of this Court in W.A.No.954 of 1994 in respect of the orders of the Government dated 02.07.1998. Even if the Government withdrew the order dated 02.07.1998, still the second respondent is under an obligation to consider the case of the petitioner in accordance with the order dated 29.12.1995 in W.A.No.954 of 1994.

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8. With regard to the fixation of rentals, he did not indicate how the demand for an amount of Rs.79,12,695/was justified when the claim of the petitioner is for an amount of Rs.52,000/- per month. The second respondent merely reiterated the order passed by the Excise Superintendent, Khammam, dated 31.01.2001, and confirmed by the second respondent on 24.05.2001 which was set aside by this Court in W.P.No.11255 of 2001.

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9. In the circumstances, this Court is left with no other alternative except to set aside the order of the second respondent dated 14.03.2007 in Rc.No.456/2001/DCW/C1, for not complying with the earlier orders of this Court indicated above. The second

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respondent shall consider the orders passed by this Court in proper perspective and fix the rentals in accordance with the directions issued from time to time by this Court within a period of three months from the date of receipt of a copy of this order, after giving opportunity of being heard to the petitioner.

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10. The writ petition is accordingly allowed. No costs. Miscellaneous petitions, if any, pending in this writ petition shall stand closed.

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___________________________ A. RAMALINGESWARA RAO, J 19^th September, 2014 KSM

Today Tappers Cooperative Society, Khammam, v. Government of a.P., Rep. by Principal Secretary

Case brief

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Today Tappers Cooperative Society, Khammam, v. Government of a.P., Rep. by Principal Secretary

Case brief

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What the court decided

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