THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
WRIT PETITION No.33173 of 2022
JUDGMENT:-
1. Heard Sri Sai Gangadhar Chamarty, learned counsel for
the petitioner and learned Government Pleader for Municipal
Administration the respondent No.1, Sri G.Naresh Kumar,
learned counsel, representing Sri M.Manohar Reddy, learned Standing Counsel for the respondent No.2, Vijayawada Municipal Corporation and learned Government Pleader for Home the respondent No.3.
2. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner for a Writ of Mandamus declaring the inaction of the respondent Nos.1 to 3 i.e., the State, the Vijayawada Municipal Corporation and the Station House Officer, in protecting the staircase and compound wall constructed by the Municipal Corporation, between the houses of the petitioner and the unofficial respondent Nos.4 to 7.
3. Learned counsel for the petitioner submits that the staircase and the compound wall was constructed by the Municipal Corporation in between the houses of the petitioner and the respondent Nos.4 to 7 but the said respondents are trying to demolish the staircase and the compound wall, 2 resulting into the encroachment of the petitioner's house with respect to which the petitioner made complaint to the Municipal Corporation, but action is not being taken.
4. Learned counsel for the petitioner submits that the petitioner filed a complaint against the respondents 4 to 7 upon which Crime No.439 of 2017 was registered in II-Town Police Station, Vijayawada, Krishna District and charge sheet was filed on 07.07.2019 upon which the II Additional Chief Metropolitan Magistrate at Vijayawada vide C.C.No.199 of 2019.
5. It is undisputed that with respect to the same subject property alleging the same cause of action i.e. the aforesaid act of the unofficial respondents 4 to 7, in demolishing the compound wall and steps on different dates, the petitioner already instituted O.S.No.779 of 2017, Shaik Hussain Bee vs. Vodugu Babu Rao and others, in the Court of Rent Controller- cum-IV Additional Junior Civil Judge, Vijayawada in which the Commissioner, Vijayawada Municipal Corporation, respondent No.2 herein, was later on impleaded as defendant No.5.
6. In the suit, the unofficial respondents herein were defendant Nos.1 to 4. They pleaded in the suit that the staircase and the compound wall were constructed by them in their own site for ingress and egress to their house. 3
7. However, the Trial Court recorded the finding that the defendants were trying to demolish the stairs and the supporting wall constructed by D5, the Vijayawada Municipal Corporation and on the site of the Corporation.
8. The O.S.No.779 of 2017 was decreed in favour of the plaintiff, petitioner herein, against the D1 to D4 i.e. the present respondent Nos.4 to 7, but was dismissed against the Municipal Corporation D5/respondent No.2, vide judgment and decree dated 13.06.2022.
9. The grievance raised by the petitioner in the present writ petition, was therefore the subject matter of O.S.No.779 of 2017. The suit was decreed against the respondent Nos.4 to 7. Consequently, if the respondent Nos.4 to 7 are violating the decree, the remedy of the petitioner against them is not by way of the writ petition but to go for execution of the decree against them, if there is no other legal impediment, and if so advised.
10. So far as the petitioner's grievance against the Municipal Corporation, D5 in the suit, is concerned, the suit against the Municipal Corporation having been dismissed, the petitioner's prayer against the Municipal Corporation by way of this Writ Petition for Mandamus cannot be granted. If the petitioner has any grievance or feels aggrieved by the decree in the suit, with 4 respect to the Municipal Corporation, D5/respondent No.2, the writ petition is not the appropriate remedy.
11. The petitioner may challenge the decree to the extent of dismissal of the suit in appeal, if so advised, as per law.
12. In the result, the writ petition is dismissed with the aforesaid observations.
13. However, dismissal of the present writ petition would not come in the way of the Municipal Corporation, respondent No.2 or the respondent No.3 in discharge of their statutory duty with respect to the subject property as per law.
14. The dismissal of the present writ petition would also not come in the way of C.C.No.199 of 2019.
No order as to costs.
As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.
__________________________ RAVI NATH TILHARI,J Date: 13.10.2022 SCS FFFFFFFFFHGHHHHHHHHHHGGGGGGGFFFKKKKKKKKKK KKKKJJJJJFSDAFSDAHLFJHSDFJASD 5 THE HON'BLE SRI JUSTICE RAVI NATH TILHARI 113 WRIT PETITION No.33173 of 2022 Date: 13.10.2022 Scs