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Monday, March 10, 2014

When the decree can be challenged in collateral proceedings with out filing appeal etc., and when not? - Their Lordships of DB. held that We have noticed that the Civil Court has rightly or wrongly allowed the respondent to approach the Civil Court, meaning thereby, they cannot initiate any action under any provision of law except by approaching the Civil Court. The learned single Judge, in our view, is not correct in ignoring the aforesaid direction of the Civil Court.- Passing a decree or order without jurisdiction is one thing and passing the judgment and order without applying proper law is another thing. In the case of second mistake, the respondent has no option to approach that Court for review of the order or to approach a statutory Court for preferring an appeal.-This is not such an order, which can be ignored, in collateral proceedings. If any order is passed without jurisdiction, the same can be ignored even in collateral proceedings.-Under the circumstances, we are unable to uphold the judgment and order of the learned single Judge and we set aside the same. = Dr.M.Krishna Prasad....Appellant Amadalavalasa Municipal Corporation represented by its Commissioner, Amadalavalasa ... Respondent = 2014 (Feb. Part) judis.nic.in/judis_andhra/filename=10944

 When the decree can be challenged in collateral proceedings with out filing appeal etc., and when not? - Their Lordships of DB. held that We have noticed that the Civil Court has rightly or wrongly allowed the respondent to approach the Civil Court, meaning thereby, they cannot initiate any action under any provision of law except by approaching the Civil Court.  
The learned single Judge, in our view, is not correct in ignoring the aforesaid direction of the
Civil Court.- Passing a decree or order without jurisdiction is one thing and passing the judgment and order without applying proper law is another thing.  In the case of second mistake, the respondent has no option to approach that Court for review of the order or to approach a statutory Court for preferring an appeal.-This is not such an order, which can be ignored, in collateral proceedings.  If any order is passed without jurisdiction, the same can be ignored even in collateral proceedings.-Under the circumstances, we are unable to uphold the judgment and order of the learned single Judge and we set aside the same. =

The writ petition was filed for setting aside the proceedings No.16/07
dated 5th October, 2007, whereby the respondent has called upon the petitioner
to remove the constructions made by him in Survey No.129 of Krishnapuram 
village.=
The respondent is of the view that such structures are unauthorized and
asked for removal of the same from the land owned by the Municipal Corporation.
The writ petitioner challenged the same contending that the aforesaid notice is
contrary to the decree of the Civil Court.  The respondent was restrained from
evicting the writ petitioner in any manner except by way of filing a civil suit.
 "That the suit be and is hereby decreed in part declaring that the
plaintiff is not the owner of the land, but he is the owner of the
superstructures and possessor of the land;
          That the defendants be and are hereby restrained from interfering with
the plaintiff's possession and enjoyment of the suit schedule property by way of
qualified prohibitory injunction, except in due process of law i.e., approaching
the Civil Court, but not under Andhra Pradesh Land Encroachment Act, 1905."
 (emphasis supplied by us)

        The learned single Judge, after considering the matter, felt that the
Civil Court's decree restraining the municipal authority from initiating action
under the provisions of the A.P. Land Encroachment Act, 1905 is bad and contrary
to law.  
Hence, the above notice was upheld and the writ petition was dismissed. =
We have noticed that
the Civil Court has rightly or wrongly allowed the respondent to approach the
Civil Court, meaning thereby, they cannot initiate any action under any
provision of law except by approaching the Civil Court.  
The learned single
Judge, in our view, is not correct in ignoring the aforesaid direction of the
Civil Court.
        Passing a decree or order without jurisdiction is one thing and passing
the judgment and order without applying proper law is another thing.  In the
case of second mistake, the respondent has no option to approach that Court for
review of the order or to approach a statutory Court for preferring an appeal.
This is not such an order, which can be ignored, in collateral proceedings.  If
any order is passed without jurisdiction, the same can be ignored even in
collateral proceedings.
Under the circumstances, we are unable to uphold the judgment and order of the
learned single Judge and we set aside the same.  
However, it would be open for
the respondent authority either to have a clarification from the learned Civil
Judge or to appellate forum in accordance with law, if they want to proceed
under the provisions of the Andhra Pradesh Municipal Corporation Act, 1965.  
If they want to approach the Civil Court, they will be free to do so if the
Municipal Corporation Act, 1965 does not put an embargo.
Accordingly, this Writ Appeal is allowed to the extent as indicated above.
        
         Pending miscellaneous Petitions, if any, shall also stand closed. No
order as to costs.
2014 (Feb. Part) judis.nic.in/judis_andhra/filename=10944
THE HONOURABLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HONOURABLE SANJAY KUMAR                      

WRIT APPEAL No.737 of 2011  

11-02-2014

Dr.M.Krishna Prasad....Appellant              

Amadalavalasa Municipal Corporation  represented by its Commissioner,
Amadalavalasa ... Respondent                          

COUNSEL FOR APPELLANT : Sri Gangadhar Chamarthy        

COUNSEL FOR RESPONDENT : Sri S.Nageswara Reddy        
       
<GIST

>HEAD NOTE:  

?CITATION:


HON'BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA          
AND
HON'BLE SRI JUSTICE SANJAY KUMAR      

WRIT APPEAL No.737 of 2011  

JUDGMENT: (per Hon'ble the Chief Justice Sri Kalyan Jyoti Sengupta )

        This appeal is admitted for hearing.  Controversy in this appeal is not
serious one for which it needs elaborate hearing.  After service of notice to
the respondent, learned Counsel for the respondent is present.
         The writ petition was filed for setting aside the proceedings No.16/07
dated 5th October, 2007, whereby the respondent has called upon the petitioner
to remove the constructions made by him in Survey No.129 of Krishnapuram 
village.
        The respondent is of the view that such structures are unauthorized and
asked for removal of the same from the land owned by the Municipal Corporation.
The writ petitioner challenged the same contending that the aforesaid notice is
contrary to the decree of the Civil Court.  The respondent was restrained from
evicting the writ petitioner in any manner except by way of filing a civil suit.
        The learned single Judge, after considering the matter, felt that the
Civil Court's decree restraining the municipal authority from initiating action
under the provisions of the A.P. Land Encroachment Act, 1905 is bad and contrary
to law.  Hence, the above notice was upheld and the writ petition was dismissed.
        Learned Counsel for the appellant has invited our attention to the decree
of the Civil Court.  The relevant portion of which is set out as follows:
        "That the suit be and is hereby decreed in part declaring that the
plaintiff is not the owner of the land, but he is the owner of the
superstructures and possessor of the land;
          That the defendants be and are hereby restrained from interfering with
the plaintiff's possession and enjoyment of the suit schedule property by way of
qualified prohibitory injunction, except in due process of law i.e., approaching
the Civil Court, but not under Andhra Pradesh Land Encroachment Act, 1905."
 (emphasis supplied by us)

        It is argued by the learned Counsel for the appellant that when the decree
has rightly or wrongly allowed the respondent to file a civil suit for removal
of the structures, which amounts to eviction, it is not open for the respondent
to initiate action under the provisions of the Andhra Pradesh Municipal
Corporation Act, 1965.
        Learned Counsel for the respondent, on the other hand, while supporting
the judgment and order of the learned single Judge, submits that the restraint
order is applicable in respect of the proceedings under the provisions of the
Andhra Pradesh Land Encroachment Act, 1905.  Moreover, after the declaration of
the Civil Court that the writ petitioner is a trespasser, he can be evicted in
due process of law and the proceedings sought to be initiated under the
provisions of the Andhra Pradesh Municipal Corporation Act, 1965 is one of the
due process of law.  The intention of the Civil Court was that the writ
petitioner should be evicted in due process of law and one of such due process
of law has been by way of approaching the Civil Court.  Thus, there is no
illegality or infirmity in the order of the learned single Judge.
        We are of the view that, as correctly urged by the learned Counsel for the
appellant, when the decree itself provides the mode of eviction and that mode
has to be adhered to, which has been specifically stated.  We have noticed that
the Civil Court has rightly or wrongly allowed the respondent to approach the
Civil Court, meaning thereby, they cannot initiate any action under any
provision of law except by approaching the Civil Court.  In other words, the
respondent was restrained from initiating any action to evict the writ
petitioner from the land in question, other than by Civil suit.  It is true that
this order may be right or wrong, but the decree is not a nullity on ground of
inherent lack of jurisdiction in order to ignore the same.  The learned single
Judge, in our view, is not correct in ignoring the aforesaid direction of the
Civil Court.
        Passing a decree or order without jurisdiction is one thing and passing
the judgment and order without applying proper law is another thing.  In the
case of second mistake, the respondent has no option to approach that Court for
review of the order or to approach a statutory Court for preferring an appeal.
This is not such an order, which can be ignored, in collateral proceedings.  If
any order is passed without jurisdiction, the same can be ignored even in
collateral proceedings.
Under the circumstances, we are unable to uphold the judgment and order of the
learned single Judge and we set aside the same.  However, it would be open for
the respondent authority either to have a clarification from the learned Civil
Judge or to appellate forum in accordance with law, if they want to proceed
under the provisions of the Andhra Pradesh Municipal Corporation Act, 1965.  If
they want to approach the Civil Court, they will be free to do so if the
Municipal Corporation Act, 1965 does not put an embargo.
Accordingly, this Writ Appeal is allowed to the extent as indicated above.
        
         Pending miscellaneous Petitions, if any, shall also stand closed. No
order as to costs.
___________________  
K.J. SENGUPTA, CJ  
_________________  
SANJAY KUMAR, J        
11-02-.2014

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