St. Lutheran Church, Vs The State of Andhra Pradesh

St. Lutheran Church D.No.69-5-23/2, Sarpavaram Road Gaigolupadu, Kakinada Urban Mandal, Kakinada District, Rep. by its President, K. Samuel Raju, S/o Satyanarayana Murthy

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Vasamsetti Venkata Rao (Dismissed as Withdrawn), S/o. Late Veerraju, Aged about 84 years R/o. 69-5-18, Gaigolupadu, Kakinada East Godavari, Andhra Pradesh

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Vasamsetti Srinivas (Dismissed as Withdrawn), S/o Vasamsetti Venkata Rao, Aged about 45 years, R/o 69-5-18, Gaigolupadu, Kakinada, East Godavari, Andhra Pradesh

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V. Satyanarayana (Dismissed as Withdrawn), S/o Vasamsetti Venkata Rao, Aged about 39 years R/o 69-5-18, Gaigolupadu, Kakinada, East Godavari, Andhra Pradesh.

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(Writ Petition is dismissed as withdrawn in so far as Writ Petitioner Nos. 2 to 4 are concerned as per Order of the Court dated 09.04.2025 in Writ Petition and Affidavit)

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...Petitioners

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AND

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The State of Andhra Pradesh, Rep., by it's Principal Secretary Municipal Administration and Urban Development, Secretariat, Amaravati, Velagapudi, Guntur District. o

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The State of Andhra Pradesh, Rep., by it's Principal Secretary, Revenue Department Secretariat, Amaravati, Velagapudi, Guntur District.

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The Kakinada Municipal Corporation, Represented by its Commissioner, Kakinada, East Godavari District

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The District Collector, Kakinada, East Godavari District

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The Revenue Divisional Officer, Kakinada, East Godavari District

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The Tahsildar, Kakinada, East Godavari District

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V S Raju Colony Welfare Association, being represented by its Secretary S. Phakeerraju, Age 64 years, R/o 69-3-72, V.S Raju Colony, Gaigollupadu Junction, Kakinada

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Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an order or direction or writ more particularly one in the nature of Writ of Mandamus declaring the action of respondent no.3 in issuing notice dated 28.02.2025, as arbitrary, illegal, null and void, against norms of public policy and principles of natural justice and in violation of the fundamental rights guaranteed under the Constitution and the same is without jurisdiction and to issue consequential direction to the respondent authorities to follow the due process of law before evicting the petitioners from their property bearing Door .No. 69-5-23/2, Sarvapuram road. Gaigolupadu, Kakinada in Municipal Layout open space of LP no. 540/1983.

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lA NO: 1 OF 2025

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay of all further proceedings pursuant to the notice dated 28.02.2025 issued by the Respondent No. 3, by restraining the Respondent authorities from taking any further steps to demolish/evict the Petitioners' from the property bearing Door .No. 69-5-23/2, Sarvapuram road, Gaigolupadu,^Kakinada in

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/

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Municipal Layout open space of LP no. 540/1983, pending disposal of the above writ petition.

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Counsel for the Petitioners: SRI VENKATESWARA RAO GUDAPATI Counsel for the Respondent Np. 1: GP MUNCIPAL ADMN AND URBAN dev AP

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Counsel for the Respondent Nos. 2, 4 to 6: GP FOR REVENUE

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Counsel for the Respondent No. 3: SRI M Krishna RAO SC MUNICIPAL CORPORATIONS

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The Court made the following order:

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APHC010147302025

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction)

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[3460]

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MONDAY,THE EIGHTEENTH DAY OF AUGUST TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY

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WRIT PETITION NO: 7787/2025

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Between:

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1.ST. LUTHERAN CHURCH ) 1 D.NO.69-5-23/2, SARPAVARAM ROAD, GAIGOLUPADU, KAKINADA URBAN MANDAL,KAKINADA DISTRICT, REP. BY ITS PRESIDENT, K. SAMUEL RAJU, S/0 SATYANARAYANA MURTHY

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2.VASAMSETTI VENKATA RAO (DISMISSED AS WITHDRAWN), S/0. LATE VEERRAJU, AGED ABOUT 84 YEARS R/0. 69-5-18, GAIGOLUPADU,KAKINADA, EAST GODAVARI, ANDHRA PRADESH

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3.VASAMSETTI SRINIVAS (DISMISSED AS WITHDRAWN), S/0 VASAMSETTI VENKATA RAO, AGED ABOUT 45 YEARS, R/0 69-5-18, GAIGOLUPADU, KAKINADA, EAST GODAVARI, ANDHRA PRADESH

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4.V. SATYANARAYANA (DISMISSED AS WITHDRAWN), S/0 VASAMSETTI VENKATA RAO, AGED ABOUT 39 YEARS R/0 69-5-18, GAIGOLUPADU, KAKINADA. EAST GODAVARI, ANDHRA PRADESH. WRIT PETITION IS DISMISSED AS WITHDRAWN IN SO FAR AS WRIT PETITIONER NOS. 2 TO 4 ARE CONCERNED AS PER ORDER OF THE COURT DATED 09.04.2025

2

...PETITIONER(S)

AND

1.THE STATE OF ANDHRA PRADESH REP. BY IT'S PRINCIPAL SECRETARY, MUNICIPAL ADMINISTRATION AND URBAN DEVELOPMENT, SECRETARIAT AMARAVATI, VELAGAPUDI, GUNTUR DISTRICT.

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2.THE STATE OF ANDHRA PRADESH, REP., BY IT'S PRINCIPAL SECRETARY, REVENUE DEPARTMENT SECRETARIAT, AMARAVATI, VELAGAPUDI, GUNTUR DISTRICT.

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3.THE KAKINADA MUNICIPAL CORPORATION, REPRESENTED BY ITS COMMISSIONER, KAKINADA, EAST GODAVARI DISTRICT

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THE DISTRICT COLLECTOR,* KAKINADA, EAST GODAVARI DISTRICT

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5.THE REVENUE DIVISIONAL OFFICER, KAKINADA, EAST GODAVARI DISTRICT

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THE TAHSILDAR, KAKINADA, EAST GODAVARI DISTRICT

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7.V S RAJU COLONY WELFARE ASSOCIATION, BEING REPRESENTED BY ITS SECRETARY S. PHAKEERRAJU, AGE 64 YEARS, R/0 69-3-72 V.S RAJU COLONY, GAIGOLLUPADU JUNCTION, KAKINADA

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...RESPONDENT(S):

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Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to be pleasbd to issue an order or direction or writ more particularly one in the nature of Writ of Mandamus declaring the action of respondent no.3 in issuing notice dated 28.02.2025 as arbitrary, illegal, null and void.

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3

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against norms of public policy and principles of natural justice and in violation of the fundamental rights guaranteed under the Constitution and the same is without jurisdiction and to issue consequential direction to the respondent authorities^tofollowthe due process of law before evicting the petitioners from their property bearing Door .No. 69-5-23/2, Sarvapuram road. Gaigolupadu, Kakinada in Municipal Layout open space^ofLPno. 540/1983 and to pass

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lA NO: 1 OF 2025

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to stay of all further proceedings pursuant to the notice dated 28.02.2025 issued by the Respondent No. 3, by restraining^the Respondent authorities from taking any further steps to demolish/evict the Petitioners' from the property bearing Door .No. 69-5-23/2, Sarvapuram road, Gaigolupadu, Kakinada in Municipal Layout open space of LP no. 540/1983, pending disposal of the above writ petition and to pass

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Counsel for the Petitioner(S):

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1.VENKATESWARA RAO GUDAPATI

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Counsel for the Respondent(S):

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1.M Krishna Rao SC for ski vzm kkd Municipal Corporations

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2.GP FOR REVENUE

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3.GP MUNCIPAL ADMN AND URBAN DEV AP

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The Court made the following:

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HON'BLE SRI JUSTICE NYAPATHY VIJAY

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W.P.No.7787 of 2025

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0 R DE R:

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The present writ petition is filed questioning the action of Respondent No.3 in issuing notice dated 28.02.2025 under Sections 401, 405 and 406 of the A.P.Municipal Corporation Act, 1994 and consequently direct the Respondent-authorities to follow due process before evicting the Petitioner from the property bearing Dr.No.69-5-23/2, Sarvapuram Road, Gaigolupadu, Kakinada in Municipal Layout open space of LP.No.540/1983. 2. The Petitioner is a registered society under the Registration of Societies Act, 1860. A Church(shed) was constructed in plot admeasuring 417.11 sq. yards in Sy.No.205/1 (part) at Gaigolupadu, Kakinada. It is stated that the plot was given to Church by one Pydah Suryanarayana Murthy on free of^costand that the same was constructed in the year 1969 under^thelimits of Ramanayyapeta Gram Panchayat. It is stated that in the year 1983, a layout was prepared by the erstwhile owners including the property which was given to the Petitioner.

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2

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While so, W.P.No.13730 of 2009 was filed by Respondent No.7 seeking a direction to Municipal-authorities to^takeactionon illegal activities of encroachers of Respondent No.3^andthesame was disposed of by order dated 24.01.2024 with a direction to Respondent-authorities to undertake survey and identify the open space in LP.No.540/83 in Sy.No.205/1 of Ramanayyapeta, V.S.Raju Colony, Gaigolupadu Junction, Kakinada and take further action accordingly. 4. Pursuant thereto, a survey was conducted by the Town Surveyor and it was opined that the Church (shed) was constructed by encroaching a municipal layout open space in LP.No.540/83. In view of the same, a notice was issued under Sections 401, 405, 406 of A.P.Municipal Corporation^Act.1994on 28.02.2025 calling upon the Petitioner to remove the encroachment, failing which action will be initiated. Hence, the present writ petition.

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It is the contention of the Petitioner that Sy.Nos.205/1^and 205/2 are Government properties and are vested with the Government by virtue of Land Ceiling proceedings in LCC.No.1548/KDA/75 and therefore, attempting to remove the Petitioner from the open space plot cannot be sustained.

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Learned standing counsel for the Corporation submits^that there is no dispute to the fact that the Church (shed)^wasraised in an open space provided in LP.No.540/83 as confirmed^bythe Town Surveyor. Learned standing counsel would contend that the issues raised in the writ petition cannot be gone^intoatthis stage as in the light of the order of this Court in^{W.P.No.13760of} 2009, wherein action was directed to be taken as per^thelayout,it is not open to the Petitioner to agitate this issue.

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the 7. Having heard the learned counsel, the following are undisputed facts;

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(i) There is no document to establish that the land in question was donated to the Petitioner by the original owner at^anypointof time,

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(ii) Secondly, there is no dispute to the fact that^the land in question was forming part of open space in the approved^lay-out in LP.No.540/83 as no plea was raised in the writ affidavit disputing the same, (iii) Thirdly, the suit O.S.No.824 of 2009 filed by^the Petitioner against Respondent No.7 from interfering with the peaceful possession over the property in question was dismissed for , I

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4

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default on 25.03.2014 by the II Additional Junior civil Judge, Kakinada.

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Coming to the contention of the learned counsel that the land in question is covered under the Land Ceiling proceedings cannot be sustained as nothing has been established^toshow that the land in question was surrendered to the Government as a consequence of land ceiling declaration at any point of time. Even otherwise, the Petitioner, who is a third party/trespasser^to the property in question, cannot seek to continue in the land on the pretext of land ceiling proceedings.

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The further contention regarding adverse possession appears to be misplaced. Firstly for the reason, that^the initial plea of the petitioner is that the subject land was donated by the erstwhile owner of the property. A person claiming title to the property under a grant/gift cannot turn around and raise a plea of adverse possession as both pleas are mutually exclusive. Secondly, the limitation for claiming adverse possession against the Respondent corporation/State is 30 years as per^Article111 and 112 of the Limitation Act and there is no plea^astofromwhen the alleged possession became hosXWe/animus possidendi^andto

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against whom it became hostile to claim right of adverse possession.

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