HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL No. 1407 OF 2014 DATE: 04.12.2014 Between:
Busireddy Narayana Reddy … Appellant And The State of A.P., rep., by its Principal Secretary, Revenue Department, Hyderabad & others.
… Respondents This Court made the following:
THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL No. 1407 of 2014 JUDGMENT: (Per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta) This appeal is sought to be preferred against the judgment and order of the learned Single Judge dated 28.08.2014.
By the writ petition the appellant – writ petitioner challenged the order of closure of his bore well dug in an extent of Ac.0.27 cents in Sy.No.181/1 of Gopalapuram Village fields, C.K. Dinne Mandal, Y.S.R. District. In the writ petition it was stated primarily that without serving any notice the impugned order was passed. Moreover, the material basing on which the impugned order was passed is not an unimpeachable document and there are some interpolations in the report which has been relied on.
Learned Single Judge after considering the averments and statements made in the writ petition and the counter affidavit came to the prima facie conclusion that notice of hearing before passing of the impugned order was tendered, but the writ petitioner refused to accept the same. His Lordship also decided the matter on merits and was pleased to permit the writ petitioner to file departmental appeal as provided under the statute.
We have heard the learned counsel for the appellant, who reiterated the submissions made before the learned Single Judge.
Whether a notice was attempted to be served upon the appellant or whether he has refused to receive the same cannot be gone into in writ jurisdiction, when an appeal provision has been made. Therefore, we think that the learned Single Judge has taken the right course of action while passing the final order in the matter, but we are constrained to observe that when the learned Single Judge has remanded the matter to the appellate authority, no observation whether prima facie or otherwise with regard to the merit of the matter ought to have been made. We therefore disagree with the findings and observations of the learned Single Judge. We otherwise uphold the order of the learned Single Judge asking the appellant to avail the remedy of appeal.
We therefore direct the appellate authority, in the event an appeal is preferred within a period of 15 days from date, to exclude the time during which the matter was pending before the learned Single Judge and before us, for the purpose of computation of limitation and for this purpose an application may be made for condonation of delay. Though the statute does not provide expressly for condonation of delay, however, by virtue of Section 29(2) of the Limitation Act, 1963 since there is no prohibition in applying the provisions of Sections 4 to 24 of the Act, the delay can be condoned invoking the provision of Section 5 of the Limitation Act. If such an appeal is preferred and entertained, we direct the appellate authority to decide the question whether notice was served on the appellant or not at the first instance. Hearing shall be completed within a period of 30 days from the date of entertainment of the appeal. If no appeal is preferred within the time stipulated above, then the order passed by us will stand recalled. All questions are kept open.
The appeal is accordingly disposed of.
Pending miscellaneous petitions, if any, shall stand closed. No order as to costs.
K.J. SENGUPTA, CJ SANJAY KUMAR, J
Date: 04.12.2014 ES