AP High Court Rejects Appeals Filed Under Land Grabbing Act After Abolition Of Special Court, Says Govt Has No Power To Vest Jurisdiction In HC

Noting that the vested right of appeal perishes when an appellate Court is abolished without constitution of an alternative Forum for disposal of pending matters or appeals, a division bench of Justice Ravi Nath Tilhari and Justice Maheswara Rao Kuncheam held,

“The G.O.Ms.No.420, dated 02.09.2016 to the extent of abolition of the Special Court by notification is within the powers of the State Government, but to the extent the said G.O.Ms.No.420 provided for the High Court as the Appellate Court to which the Appeals under the Act 1982 will be transferred and decided as the Appellate Court under the Act 1982, is beyond the statutory powers conferred on the State Government and to that extent, the Government Order is in transgression of the executive powers of the State and in excess of the power conferred by the Act 1982.”

Further noting that the State Government has no power to provide for an Appellate Forum in the High Court, the Division Bench stated,

“The High Court is not the Special Court under the Act 1982. The High Court is not the Appellate Court under the Act 1982. Section 7(4) of the Act 1982 confers the power on the State Government by notification to re-constitute the Special Court or may at any time abolish such Special Court. The power given to the State Government by the Statute is to constitute, re-constitute or abolish the Special Court. The Statute does not confer any power on the State Government to create a new appellate Court for the purposes of the Act 1982, other than the constitution, re- constitution of the Special Court which is defined under the Act”

Facts:

Section 7A(3) of the 1982 Act provided that appeals from any order (except interlocutory) of the Special Tribunal lay to the Special Court. However, vide the 2016 GO, the State abolished the Special Court while Section 7A(3) remained unamended and continued to refer appeals to the Special Court. Subsequently, the 2016 GO transferred all pending cases before the Special Court to the then common High Court of Telangana and Andhra Pradesh, thereby making the common High Court the appellate authority. After the bifurcation of the common High Court in 2019, the appeals were further allocated to the respective High Courts on the basis of territorial jurisdiction.

The batch of appeals thus placed involved a common question regarding their maintainability before the High Court.

The appellants, which were inclusive of those who had their LGAs filed directly before the High Court after abolition of the Special Court as well as those whose pending appeals were transferred from the erstwhile common High Court, submitted that Section 7A(3) of the 1982 Act created a statutory and vested right of appeal from order of the Special Tribunal, and such a right cannot extinguish merely because the Special Court was abolished. In light of this, they argued that once the Special Court forum was abolished, the High Court automatically became the competent appellate forum to exercise appellate jurisdiction under Section 7A(3).

On the contrary, the respondent State supported the 2016 GO in as much as it abolished the Special Court, however, opposed the act of treating the High Court as the Appellate Forum without a legislative amendment.

Court's Findings:

In the present case, the GO of 2016, which abolished the Special Court, did not create a new or alternative forum empowered to entertain appeals from orders of the Special Tribunal. It instead bestowed appellate jurisdiction upon the High Court. Against this backdrop, the Court observed,

“The abolition of the forum by G.O.Ms.No.420 dated 02.09.2016 is within the powers conferred by Section 7-A of the Act 1982. So, vested right to appeal either in the pending appeals before Special Court at the time of abolition, or for the proceedings pending in the Special Tribunal at the first instance on the date of abolition, in our view had perished on abolition of forum of appeal vide G.O.Ms.No.420, dated 02.09.2016. It is true that by the same G.O.Ms.No.420, dated 02.09.2016, the pending appeals were provided to be decided by the High Court exercising the powers under the Act 1982, but that part of the G.O.Ms.No.420, in our view, is beyond the power of the State Government under Section 7-A of the Act 1982 and also contrary to the provision of Section 7-A of the Act 1982. On abolition, the Special Court might have come to an end, but in the absence of any legislation by the Legislature, creating a new Forum, the pending appeals could not be either transferred to the High Court to be decided under the Act 1982 nor the High Court could be the appellate forum for the appeals under the Act 1982. It could be so made, only by the Legislature, which has not been done.”

However, the Court clarified that it did not imply that the High Court cannot be made the appellate Court in place of the Special Court, rather, it emphasised that the same can be done only by way of an amendment to the 1982 Act.

Against the argument that the on abolition of the Special Court, the High Court — being the superior Court, would assume the role of the Appellate Court by virtue of the doctrine of “successive forum”, the Court observed,

“Successive Forum may succeed to the forum abolished, but for that the successive forum has to be created by the competent authority and legislation. In the present case, the High Court has not been made the successive forum or the appellate Court under the Act 1982 on abolition of the Special Court, by any legislation/statute. Consequently, we do not find force in the submission based on the alleged doctrine of 'successive forum'.”

The Court also took note of a resolution passed by the then common High Court of Telangana and Andhra Pradesh, giving effect to the 2016 order, and held,

“… we are of the view that the executive power exercised by the High Court in passing the resolution to the same effect and thus giving effect to the Government Order for the said purpose has also transgressed its power on administrative side by conferring to it the appellate powers making it an Appellate Court, under the Act 1982 which were not conferred on the High Court by the Statute i.e., Act of 1982, but were conferred on the Special Court under the said Act.”

Thus, the Court declared that the LGAs filed before the High Court were not-maintainable, and dismissed the same. However, the Court clarified that an order, even if made final by not providing for appeal or taking away the right to appeal, may be retrospectively, expressly or otherwise is open to judicial review.

Case Number: LAND GRABBING APPEAL No. 20 of 106 and batch

Case Title: Shaik Masthan Vali v. Kummaru Durga and batch

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