Dismissed

Sharaf Arts and Science College, Padne v. State of Kerala

Kerala HC11 Dec 2017WP(C)/32293/2015

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition seeking to quash adverse tax and affiliation orders against a college. The Court held that since interim injunction orders in a pending civil suit were not produced before statutory authorities, direct relief in the writ petition was not feasible without affecting the pending litigation. The matter was left open for the pending revision.

What did the court decide?

Writ petition dismissed; observations are for disposal only; questions left open; petitioner to pursue revision.

Sharaf Arts and Science College, Padne Vs State of… — Education and Admissions | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 11TH DAY OF DECEMBER 2017/20TH AGRAHAYANA, 1939 WP(C).No. 32293 of 2015 (J) ----------------------------

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PETITIONER:

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SHARAF ARTS AND SCIENCE COLLEGE, PADNE REPRESENTED BY ITS SECRETARY, T.P.MUTHALIB, AGED 58 YEARS, S/O MUHAMMEDKUNHI, R/AT RIZIYA MANZIL, PADNE, KASARAGOD DISTRICT. * IS ADDED “RUN BY KIDMATH ORGANIZATION OF PADNE” AS PER ORDER DATED 18/08/2016 IN IA.16335/2015. BY ADV. SRI.KODOTH SREEDHARAN

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RESPONDENT(S):

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1.	STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-1.
2.	THE DISTRICT COLLECTOR KASARAGOD
3.	TAHSILDAR HOSDURG, 671121
4.	THE VICE CHANCELLOR, KANNUR UNIVERSITY, KANNUR 670101
5.	THE REGISTRAR, KANNUR UNIVERSITY, KANNUR 670101
6.	SALAVUDHEEN K.P, PADNE, KASARAGOD DISTRICT.671121.
7.	SHAMSUDHEEN, PADNE, KASARAGOD DISTRICT
8.	P.K.C.MOHAMMED HAJEE PADNE, KASARAGOD DISTRICT 671121

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WP(C).No. 32293 of 2015 (J)

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9. A.M.SHERIF HAJEE, GOVERNING BODY MEMBER, SHARAF ARTS AND SCIENCE COLLEGE,PADNE, KASARAGOD DISTRICT 671121.

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R1-R3 BY GOVERNMENT PLEADER SRI SANTHOSH PETER R4&R5 BY ADV. SRI.M.SASINDRAN, SC, R6 BY ADV. SRI.P.K.SUBHASH R8 BY ADV. SRI.P.K.RAVISANKAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.V.

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WP(C).No. 32293 of 2015 (J)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P1. TRUE COPY OF THE ORDER IN IA NO.2440/2008 IN IA NO.3536/2008 IN OS NO.241/2008 DATED 27/11/2008 OF THE MUNISFF'S COURT, HOSUDURG.

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EXT.P2. TRUE COPY OF THE ORDER IN IA NO.2879/2006 IN OS NO.326/2006 DATED 10/1/2009 OF THE MUNISFF'S COURT, HOSUDURG.

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EXT.P3. TRUE COPY OF THE ORDER OF THE TAHSILDAR HOSUDURG DATED 3/10/2015.

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EXT.P4. TRUE COPY OF THE APPEAL FILED BEFORE THE DISTRICT COLLECTOR, KASARAGOD DATED 19/10/2015.

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EXT.P5. TRUE COPY OF THE REPRESENTATION DATED 19/10/2015 BEFORE THE 4TH RESPONDENT

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EXT.P6 TRUE COPY OF THE ORDER DATED 20/10/2015 ISSUED BY THE 4TH RESPONDENT.

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EXT P7(A)TRUE COPY OF THE COMMUNICATION FROM THE REGISTRAR ADDRESSED TO THEN SECRETARY OF THE GOVERNING BODY DATED 25/11/06.

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EXT P7(B)TRUE COPY OF THE APPLICATION FOR ADDITIONAL AFFILIATION MADE AND THE SIGNED BY THE THEN PRESIDENT THE 8TH RESPONDENT HIMSELF DATED 26/12/03.

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EXT.P7(C) TRUE COPY OF THE MINITES OF THE SYNDICATE MEETING DATED 28/5/2003.

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EXT P7(D) TRUE COPY OF THE MINUTES OF THE SYNDICATE MEETING DATED 29/4/2003.

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EXT P7(E) TRUE COPY OF THE MINUTES OF THE SYNDICATE MEETING DATED 19/4/2003.

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EXT P(F) TRUE COPY OF THE PARTICULARS OF AGENCIES WHO APPLIED FOR COLLEGES DATED 8/1/2003 ISSUED BY THE KANNUR UNIVERSITY.

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EXT I7(G) TRUE COPY RELEVANT PORTION OF THE ANNUAL REPORT FOR THE YEAR 2013.

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EXT P7(H) TRUE COPY OF THE ANNUAL REPORT FOR THE YEAR 2014.

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EXT P7(I) TRUE COPY OF THE APPROVAL OF THE MANAGER OF THE SHARAF ARTS AND SCIENCE COLLEGE PADNE DATED 30/5/2008.

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EXT P7(J) TRUE COPY OF THE APPROVAL OF THE MANAGER OFFICE BEARER ARTS AND SCIENCE COLLEGE, PADNE DATED 2/6/2008.

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EXT P7(K)TRUE COPY OF THE APPROVAL OF THE MANAGER OF THE SHARAF ARTS AND SCIENCE COLLEGE, PADNE DATED 13/10/2008.

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WP(C).No. 32293 of 2015 (J)

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EXT P7(L)TRUE COPY OF THE APPROVAL OF THE MANAGER OF THE SHARAF ARTS AND SCIENCE COLLEGE, PADNE DATED 5/12/2008.

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EXT P7(M) TRUE COPY OF THE AMENDED BYELAWS OF THE KIDMATH ORGANIZATION OF PADNE (KOP) OF 2009.

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EXT P7(N) TRUE COPY OF THE COMMUNICATION DATED 17/11/2015 AND THE APPLICATION MADE BY THE 8TH RESPONDENT DATED 3/10/2015.

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EXT P8: TRUE COPY OF THE NOTICE DATED 21/3/2016 ISSUED BY THE CHERUVATHOOR GRAMA PANCHAYATH.

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EXT P8(A) TRUE COPY OF THE NOTICE DATED 21.3.2016 ISSUED BY THE CHERVATHOOR GRAMA PANCHAYATH.

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EXT P9 TRUE COPY OF THE NOTICE DATED 23/3/2016 ISSUED BY THE KANNUR UNIVERSITY.

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EXT P10 TRUE COPY OF THE REQUEST DATED 24/2/2016. EXT P10(A) TRUE COPY OF THE REQUEST DATED 26/3/2016

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EXT P11 TRUE COPY OF THE REQUEST DATED 18/8/2012 BY THE PETITIONER.

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EXT 11(A) TRUE COPY OF THE REQUEST DATED 26/3/2013 BY THE PETITIONER.

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EXT P12 TRUE COPY OF THE COMPLAINT DATED 16/2/2016 BEFORE THE CHERUVATHOOR GRAMA PANCHAYATH.

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EXT P12(A) TRUE COPY OF THE COMPLAINT DATED 30/3/2016 BEFORE THE CHERUVATHOOR GRAMA PANCHAYATH.

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EXT P13 TRUE COPY OF THE ORDER DATED 12/7/2016 ISSUED BY THE 2ND RESPONDENT.

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EXT P14 TRUE COPY OF THE APPEAL BEFORE THE REVENUE COMMISSION. EXT P14(A) TRUE COPY OF THE STAY PETITION BEFORE THE REVENUE COMMISSION.

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EXT P15 TRUE COPY OF THE LETTER DATED 17.6.2016 ISSUED BY THE KANNUR UNIVERSITY.

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EXT P16 TRUE COPY OF THE ORDER IN WPC NO 21611/2016 AND WP NO 13676/2016 DATED 1/8/2016 BY THIS HON'BLE COURT.

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EXT P17 TRUE COPY OF THE JUDGMENT IN WP NO 21611/2016 AND WP NO 13676/2016 DATED 30.8.2017.

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EXT P18	TRUE COPY OF THE INTERIM ORDER IN WP NO 15736/2017
	DATED 22.5.2017 BY THIS HON'BLE COURT.

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EXT P19	TRUE COPY OF THE JUDGMENT IN WPC NO 4904/2017 BY THIS
	HON'BLE COURT DATED 14.2.2017.

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WP(C).No. 32293 of 2015 (J)

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EXT	P20	TRUE COPY OF THE INTERIM ORDER IN WA NO 390/2017 BY THIS HON'BLE COURT DATED 28.2.2017.
EXT	P21	TRUE COPY OF THE MEMO ISSUED BY THE UNIVERSITY TO 5TH RESPONDENT ON 3//7/2003.
EXT	P22	TRUE COPY OF THE LETTER DATED 24/11/2008 BY KANNUR UNIVERSITY.
EXT	P23	TRUE COPY OF THE COMMUNICATION DATED 22.7.2008 ISSUED BY THE REGISTRAR TO THE PETITIONER.
EXT	P24	TRUE COPY OF THE ACKNOWLEDGEMENT DATED 2/1/2009 IN THE LETTER DATED 31/12/2006.
EXT	P25	TRUE COPY OF THE ANNUAL RETURN OF THE OFFICE BEARERS FURNISHED BY PKC MAHMOOD HAJEE AND REGISTERED BY THE REGISTRAR OF SOCIETIES ON 4.9.2015 FOR THE PERIOD FROM 2008 TO 2015.
EXT	26	TRUE COPY OF THE COMPLAINT DATED 20.2.2016 BY THE PETITIONER
EXT	P27	TRUE COPY OF THE ANNUAL RETURN OF THE OFFICE BEARERS FURNISHED BY PKC MAHMOOD HAJEE AND REGISTERED BY THE REGISTRAR OF SOCIETIES ON 7.4.2016 FOR THE PERIOD FROM 2016-2017.
EXT	P28	TRUE COPY OF THE OBJECTION DATED 8.8.2016 FILED BY THE PETITIONER.
EXT	P29	TRUE COPY OF THE NOTICE DATED 25/8/2016 ISSUED TO THE PETITIONER.
EXT	P30	TRUE COPY OF THE ORDER PASSED BY THE REGIONAL INSPECTOR GENERAL OF REGISTRATION DATED 20.6.2017.
EXT	P31.	TRUE COPY OF THE INTERIM ORDER IN WPC NO 22381/2017 DATED 25..7.2017 BY THIS HON'BLE COURT.
EXT	P32.	TRUE COPY OF THE ONE OF THE DOCUMENT DATED 6.5.2003.

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RESPONDENT(S)' EXHIBITS

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R8(A) TRUE COPY OF THE CERTIFICATE DATED 27.3.2015 ISSUED BY THE DISTRICT REGISTRAR, KASARGOD.

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R8(B) TRUE COPY OF THE SALE DEED DATED 6.5.2003 REGISTERED AS DOCUMENT NO 1550 OF 2003 OF SRO, TRIKKARIPPUR.

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R8(C) TRUE COPY OF THE ORDER NO U O NO ACAD/A2/1359/96 DATED 20/10/2015 ISSUED BY THE 5TH RESPONDENT.

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WP(C).No. 32293 of 2015 (J)

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R8(D) TRUE COPY OF THE RECEIPT NO 8354387 25.7.2017 ISSUED BY VILLAGE OFFICER, CHERUVATHOOR.

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R8(F) TRUE COPY OF THE POSSESSION CERTIFICATE DATED 5.10.2015 ISSUED TO ME BY VILLAGE OFFICER, CHERUVATHOOR.

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K.V. P.S.TO JUDGE

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SHAJI P. CHALY, J.

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W.P.(C) No.32293 of 2015

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Dated this the 11^th day of December, 2017

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JUDGMENT

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This writ petition is filed by the petitioner seeking to quash Exts.P3 and P6, whereby the 3rd respondent declined to accept tax from the petitioner college and decided to collect tax from the committee of the college, which is a registered body, and the 5th respondent Registrar of the Kannur University revised the provisional affiliation granted to the college and granted provisional affiliation of the college to the educational agency, respectively. Petitioner has also sought to quash Ext.P13 order passed by the District Collector, Kasaragod, affirming Ext.P3 order passed by the Tahsildar, and seek other related reliefs also. Material facts for the disposal of the writ petition are as follows:

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Petitioner college is represented by the Secretary of the college. According to the petitioner, it has been paying all the Government arrears including basic tax regularly in the name of an organization named Kidmath Organization of Padne. There were litigations in respect of the management of

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W.P.(C) No.32293 of 2015 2

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the college, which finally culminated in O.S.No.241 of 2008 pending before the Munsiff's Court, Hosdurg. In the said suit, an order is passed in I.A.No.2440/2008, whereby an injunction is granted as per Ext.P1 in favour of the petitioner. There is yet another litigation instituted by the Kidmath Organization of Padne as O.S.No.326 of 2006 pending before the Munsiff's Court, Hosdurg, wherein, the contest is in respect of the special and independent status. According to the petitioner, petitioner is entitled to get advantage of the injunction orders passed by the civil court.

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It is submitted, by suppressing the aforesaid facts and legal developments, 8th respondent approached the authorities, including Tahsildar, Hosdurg, and obtained Ext.P3 order dated 03.10.2015. It is also contended that, Ext.P3 order is passed without providing sufficient opportunity of hearing to the petitioner. Other contentions are also raised with respect to the illegality in Ext.P3. Anyhow, petitioner has challenged Ext.P3 before the 2nd respondent, District Collector by filing Ext.P4 appeal. In the meanwhile, 8th respondent approached the University for changing the authority of affiliation in his favour. Thereupon, petitioner has submitted

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W.P.(C) No.32293 of 2015 3

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Ext.P5 opposing the same. However, Ext.P6 order is passed by the University in favour of the educational agency represented by the 8th respondent.

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In the meanwhile, the District Collector has passed

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Ext.P13 order, affirming Ext.P3 order passed by the Tahsildar, and thereupon, the writ petition was amended and Ext.P13 is also under challenge. Being aggrieved by Ext.P13, Ext.P14 revision is preferred before the Land Revenue Commissioner, which is pending consideration. It is also contended that, even though appeals were preferred against Exts.P1 and P2 before the appellate court, the same were dismissed. The main contention advanced by the petitioner is that, in view of the findings rendered in Exts.P1 and P2 injunction orders, Exts.P3 and P13 orders passed by the Tahsildar as well as the District Collector respectively, cannot be sustained under law, and Exts.P1 and P2 orders passed by the civil court stand as a fetter from taking a decision against the orders impugned.

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The 4th and 5th respondents have filed a statement and counter affidavit justifying passage of Ext.P6 order granting re-affiliation in favour of the Educational Agency. It is also submitted that, University has produced all the documents

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W.P.(C) No.32293 of 2015

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in the pending suit in accordance with the directions issued by the civil court.

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Eighth respondent has also filed a detailed counter affidavit justifying Exts.P3, P6 and P13 orders. According to the 8th respondent, the Educational Agency is entitled as of right to pay tax, and the petitioner has no manner of role in the educational activities carried on by the agency. It is also submitted that, the petitioner college has no locus standi nor any legal right to file this writ petition, since the college is not a registered organization, and the very maintainability of the writ petition is also challenged by the 8th respondent.

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Reply affidavits are filed by the petitioner, reiterating the stand adopted in the writ petition.

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I have heard learned counsel for the petitioner, learned Senior Government Pleader and the respective counsel appearing for the other respondents. Perused the documents on record and the pleadings put forth by the respective parties.

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The discussion made above would make it clear that, there is a serious civil dispute pending between the petitioner as well as the other party respondents. It is true, the interim orders Exts.P1 and P2 were passed in the pending

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W.P.(C) No.32293 of 2015 5

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suits. However, surprisingly, evident from the records produced, petitioner has not produced Exts.P1 and P2 either before the District Collector or before the Tahsildar. If the petitioner is to secure any orders on the basis of the injunction order in favour of the petitioner, necessarily, petitioner had a duty to produce the same before the respective statutory authorities. According to the petitioner, the said orders were produced, however, the same were not taken into consideration by the respective statutory authorities.

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The predominant contention advanced by learned counsel for the petitioner is that, Exts.P1 and P2 orders passed by the civil court in interlocutory applications, constitute as res judicata , thereby precluding the statutory authorities from passing any orders against the order passed by the civil court. However, I find that those are interlocutory orders and the suit proceedings have not attained any finality. Moreover, even though petitioner has a contention that those documents were produced before the statutory authorities, from the records produced, it is clear that, for reasons known to the petitioner alone, the said documents were not produced. Anyhow, Ext.P14 revision filed by the petitioner is pending consideration

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W.P.(C) No.32293 of 2015

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before the Land Revenue Commissioner. Therefore, it is for the petitioner to pursue the said revision in accordance with law. I am also satisfied that the subject matter of the suit proceedings pertaining to Exts.P1 and P2 orders are also in relation to the subject matter raised in this writ petition. Various other contentions are raised by the respective parties, and if any interference is made at this stage of the proceedings

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in a writ petition, it will materially affect the adjudication pending in the suit proceedings.

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In view of the facts and circumstances and the nature of repelling contentions raised by the respective parties, and since suit proceedings are pending substantially similar to the issues raised in this writ petition, I am of the considered opinion that, petitioner is not entitled to get any relief in this writ petition, at this stage of the proceedings. However, I make it clear that the observations and findings contained above are intended only for the purpose of disposal of the writ petition and the same shall not be construed as expression of opinion on the merits of the matter or rival interest of the parties. All the questions of law and fact raised in the writ petition are left open.

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W.P.(C) No.32293 of 2015

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Resultantly, writ petition fails, accordingly, it is

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dismissed.

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Sd/-

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SHAJI P. CHALY JUDGE

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St/13.12.2017

Sharaf Arts and Science College, Padne v. State of Kerala

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Sharaf Arts and Science College, Padne v. State of Kerala

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