Shaik Hussain Bee vs The State Of Andhra Pradesh
2022 Latest Caselaw 7808 AP

      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,

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.

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

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

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

WRIT PETITION No.33173 of 2022

Date: 13.10.2022

Scs