Allowed

Sreevidya Sasidharan v. State of Kerala

Kerala HC29 Nov 2018WP(C)/35547/2018

Case brief

AI extract

What is this about?

Petitioners sought grant of mutation and basic land tax acceptance for land acquired via registered sale deed. Court held revenue authorities mandatory obliged to accept tax and allow mutation proceedings under Kerala Land Tax Act despite prior administrative restrictions.

What did the court decide?

Allowed petition; directed Tahsildar to consider mutation application, grant it, and accept basic land tax recipients for periods post-registration of sale deed.

Sreevidya Sasidharan Vs State of Kerala — Land Acquisition | Kerala HC (2018)

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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 ALEXANDER THOMAS

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THURSDAY,THE 29TH DAY OF NOVEMBER 2018 / 8TH AGRAHAYANA, 1940

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WP(C).No.35547 of 2018

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PETITIONERS:

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1 SREEVIDYA SASIDHARAN AGED 54 YEARS W/O.SASIDHARAN, ULLATTIL HOUSE, PALLAVOOR P.O., PALLAVOOR, PIN-678 688

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2 KEERTHANA SASIDHARAN AGED YEARS, D/O SASIDHARAN, ULLATTIL HOUSE, PALLAVOOR P.O., PALLAVOOR, PIN-678 688

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3 BHAVANA SASIDHARAN (MINOR) AGED 14 YEARS REPRESENTED BY HER FATHER SASIDHARAN, ULLATTIL HOUSE, PALLAVOOR P.O., PALLAVOOR, PIN-678 688

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BY ADVS. SRI.K.M.CHERIAN SRI.GIRIJAVALLABHAN

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY ITS PRINCIPLE SECRETARY, REVENUE DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHPAURAM-695 001.

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2 DISTRICT COLLECTOR

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COLLECTORATE, IDUKKI DISTRICT, PIN-686502.

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3 THE REVENUE DIVISIONAL OFFICER REVENUE DIVISIONAL OFFICE, IDUKKI DISTRICT, PIN-686502.

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4 OFFICE OF THE COMMISSIONER OF LAND REVENUE PUBLIC OFFICE BUILDING, MUSEUM ROAD, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695003.

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5 TAHSILDAR (LR) TALUK OFFICE, DEVIKULAM, CIRCULAR ROAD, DEVIKULAM-685 613.

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W.P(C)No.35547 of 2018

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6 VILLAGE OFFICER PALLIVASAL VILLAGE OFFICE, DEVIKULAM, IDUKKI DISTRICT, PIN-685613.

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SRI.SAIGI JACOB PALATY, SR.GOVT.PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P(C)No.35547 of 2018

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(CR)

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ALEXANDER THOMAS, J.

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=============================

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W.P(C)No.35547 of 2018

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=============================

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Dated this the 29^th day of November, 2018

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JUDGMENT

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The prayers in the above Writ Petition

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(Civil) are as follows:

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“i. issue a writ of certiorari or any other appropriate writ, order or direction to the 2^nd respondent to direct the 6^th respondent to accept the land tax dues.

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ii. issue directions to accept applications for submitting mutation process from the petitioners side for facilitating appropriate changes in the village records and other connected revenue records.

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iii. To issue a writ of mandamus or appropriate direction commanding the RDO to consider Ext.P12.

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iv. issue such other writ or orders or directions, which this Honourable court may deem fit and proper in the interest of justice and circumstances of the case.”

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2. Heard Sri.P.M.Girijavallabhavan, learned

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counsel appearing for the petitioners

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W.P(C)No.35547 of 2018

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and Sri.Saigi Jacob Palatty, learned

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Sr.Government Pleader appearing for the respondents.

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3. The petitioners are aggrieved by the refusal on the part of the competent authorities among the respondents, more particularly respondents 5 & 6 to grant mutation and to accept basic land tax in respect of his property covered by Ext.P-1 registered sale deed dated 13.07.2010 of SRO, Devikulam.

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4. The following aspects are discernible from the pleadings and materials placed on record in this case. The subject property in question was originally assigned in favour of one D.Mary, as per Ext.P-7 patta certificate No.13449 dated 08.12.1993 issued by the 5^th respondent-Tahsildar (LR), Devikulam as per the provisions of the Kerala Land Assignment

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Rules, 1964. Later, the said Mary had conveyed the said property covered by Ext.P-7 patta to one Shamsudeen, as per Ext.P-6 registered sale deed No.2653 of 1994 dated 03.08.1994 of SRO, Devikulam. Later, the said Shamsudeen had conveyed the said property to one Eldho, as per Ext.P-5 registered sale deed No.1238 of 2006 dated 20.04.2006 of SRO, Devikulam. Pursuant to Ext.P-5 registered sale deed, the 5^th respondent-Tahsildar (LR) had allotted tandaper account No.1727, as per Ext.P-2 in favour of the said Eldho. Exts.P-3 & P-4 are the location certificate and the possession certificate, issued in favour of the said Eldho, in respect of the property covered by Ext.P-5. Later, the said Eldho had conveyed the said property in favour of the petitioners as per Ext.P-1 registered sale deed dated 13.07.2010 of SRO, Devikulam. The

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extent of property covered by Ext.P-1 registered sale deed executed in favour of the petitioner comes to 2.60 Acres (105.22 Ares) comprised in resurvey No.46/1-3 (old survey No.435) in block No.14 of Pallivasal Village, Devikulam Taluk, Idukki Revenue District. The petitioners would point out that the said property covered by Ext.P-1 registered sale deed is having clear cut boundaries and three of its boundaries viz., north, west and south are bounded by the petitioners’ own other properties and as per the recital in Ext.P-1 deed, the eastern property thereof is the property of one Murugadas. Later, when the petitioners had approached the competent authorities like respondents 5 & 6, they have consistently refused to grant mutation of the said property covered by Ext.P-1 in favour of the petitioners and to accept basic land tax

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from the petitioners. The petitioners had made several attempts to submit their formal application for grant of mutation, etc. and the same was not even received by them, on the ground that there are general instructions issued by the higher revenue authorities that the mutation and the land tax shall not be granted or that land tax should not be accepted, in respect of properties in Devikulam Taluk, presumably due to the problems associated with the “Munnar opertions”, which happened in 2007 and thereafter. Thereafter, the petitioners have submitted Ext.P-8 petition dated 30.04.2017 before the 3^rd respondent-RDO for directions to the sub-ordinate officials like respondents 5 & 6 to grant mutation and to accept basic land tax. The petitioners have also submitted Ext.P-9 dated 01.02.2018 before the 5^th respondent-Tahsildar (LR), for grant of

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mutation of the said property covered by Ext.P-1 in favour of the petitioners and to accept basic land tax from the petitioners,

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etc. Since no effective action was forthcoming, the petitioners have also been constrained to submit Ext.P-12 representation dated 06.07.2018 before the 1^st respondentDistrict Collector, Idukki, which has been numbered as C6/58669/18. It is in the light of these factual averments, that the petitioners have filed the instant writ petition with the aforementioned prayers.

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5. Earlier the learned Government Pleader concerned was requested to get instructions in the matter. On a specific query raised by this Court, as to whether the property was mutated in favour of the abovesaid Sri.Eldho and basic land tax was accepted from him, consequent thandaper account No.1727 allotted to him as

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per Ext.P-2, based on Ext.P-5 registered sale deed executed in his favour, etc., the learned Government Pleader would submit on the basis of instructions that the property was mutated in favour of Sri.Eldho, and tandaper account was duly allotted as No.1727, as per Ext.P-2 and also basic land tax was accepted from him till the year 2010-2011. That thereafter, basic land tax was not received from Sri.Eldho, consequent to order No.82-509/16 dated 02.03.2017 of the 3^rd respondent-RDO/SubCollector, Devikulam. It is further stated that it is referred to in the said order No. 82-509/16 dated 02.03.2017 issued by the 3^rd respondent-Sub Collector that earlier there was a general direction issued by the 2^nd respondent-District Collector, ordering not to make any mutations or accept basic land tax from the Pallivasal Village, as the authorities

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were examining the allegations that lot of frivolous pattas were issued in those areas and the matter require detailed scrutiny, etc. Later, the said general restriction was modified and whereby the said conditions were restricted only in the case of properties in respect of certain survey numbers in Pallivasal Village and the property conveyed by Eldho to the petitioners, is in respect of one such survey number. However, it is also evident that no orders are now in force issued by any competent court/forum, etc. interdicting grant of mutation or acceptance of basic land tax in respect of petitioners’ property.

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6. So it is indisputable that the property in question was mutated in favour of the immediate prior title holder Sri.Eldho consequent to Ext.P-5 registered sale deed executed in his favour and tandaper account

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No.1727 was duly allotted to him by respondents 5 & 6, as per Ext.P-2 and basic land tax has been also accepted from Sri.Eldho upto the year 2010-2011. Thereafter, basic land tax has not been accepted from Eldho and the property has not been mutated, in favour of the petitioners and land tax has also not been accepted from the petitioners. So, the issues posed in this case, in the matter of mutation and acceptance of basic land tax from the petitioners are in a very narrow compass.

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7. Sec.5 of the Kerala Land Tax Act, 1961 deals with charge of land tax. Sec.5(2) of the Kerala Land Tax Act, 1961 mandates that basic land tax charge on any land shall be charged on the “land holder” concerned. “Land holder” has been specifically defined with precision under Sec.3(3) of the Kerala Land Tax Act, 1961, which reads as follows:

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“3. Definitions.- In this Act, unless the context otherwise requires,-

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(1) xxx xxx xxx (2) xxx xxx xxx

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(3) “land holder” means,-

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(a) in relation to any land held by a cultivating tenant as defined in the Kerala Land Reforms Act, 1963 (1 of 1964), such cultivating tenant;

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(b) in relation to any land in the possession of a kanam tenant as defined in the Kanam Tenancy Act, 1955 (XXIV of 1955), such Kanam tenant;

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(c) in relation to any land which has not been surveyed and is not held by a cultivating tenant referred to in sub-clause (a), the proprietor of such land;

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(d) in relation to any other land, the registered holder for the time being of such land, and includes his legal representatives and assigns and any person who under any law for the time being in force is liable for the payment of public revenue due in respect of the land held by him.”

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8. It is clear from the abovesaid recital

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of facts in this case that the petitioners’ case or their immediate predecessor’s case will not come within clauses (a), (b) or (c) of

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Sec.3(3) of the abovesaid Act. However, since property was mutated in favour of the previous title holder Sri.Eldho and as tandaper account number was also duly allotted to him, as per Ext.P-2 and land tax has also been accepted for the year 2010-2011, it is clear like the blue sky that the abovesaid Sri.Eldho is the registered “land holder” of the abovesaid land covered by Exts.P-5 & P-1 sale deeds. The said registered “land holder” has admittedly assigned and conveyed the said landed property in favour of the petitioners, as per Ext.P-1 registered sale deed. So, the petitioners are the assignees of Sri.Eldho. Where the registered “land holder” assigns the property, then by the force of the operation of clause (d) of Sec.3(3) of the Kerala Land Tax Act, the assignee of the registered “land holder” will automatically stand in the shoe of the “land

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holder”. Therefore, immediately after the property was conveyed by the registered “land

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holder” Sri.Eldho, in favour of the petitioners, as per Ext.P-1, the petitioners will stand in the shoe of the registered “land holder” under Sec.3(3)(d). Therefore, the respondents, more particularly respondents 5 & 6, are under the legal obligation to accept basic land tax from the petitioners going by the force and mandate of Sec.3(3)(d) read with Sec.5(2) of the Kerala Land Tax Act, 1961. Any general order issued by officials like the 2^nd respondent-District Collector, 3^rd respondentRDO or even any executive orders issued, etc. cannot whittle down the abovesaid statutory force of the applicability of Sec.3(3)(d) r/w Sec.5(2) of the Kerala Land Tax Act. Therefore, the action of respondents, more particularly respondents 5 & 6 in refusing to

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mutate the property in favour of the petitioners and to accept basic land tax from the petitioners, consequent to Ext.P-1 registered sale deed is illegal and ultra vires . Therefore, respondents 5 & 6 are legally obliged to accept basic land tax from the petitioners, without any further delay for the periods from the execution and registration of Ext.P-1 sale deed dated 30.07.2010. For

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subserving such action, it is only right and proper that the petitioners' application for grant of mutation is also considered and allowed, so that basic land tax could thus be accepted from them. However, it is also to be borne in mind that, it has been held in a catena of rulings of the Apex Court and the various High Courts as that in Surney v. Inder Kaur [AIR 1992 SC 2823) that mutation of the property and acceptance of land tax will not by

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itself create or extinguish title, nor has it any presumptive value on title and it only enables the person in whose favour mutation is ordered to pay the land revenue in question. This position has been so clarified and declared by this Court also in a catena of rulings, so that it does not require any citation of any judicial authority in that regard. However, it may be apposite to bear in mind that this aspect is also enshrined in the provision contained in Rule 16 of the Transfer of Registry Rules, 1966, whereby, it has been stipulated therein that the summary enquiry and decision thereon for the purpose of mutation is only for an arrangement of fiscal purpose and does not affect the legal rights of any person in respect of the lands covered by the decisions in the transfer of registry cases and the question of legal rights is always subject

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to adjudication by civil courts and pattas will be revised from time to time, in accordance with judicial decisions, etc. Therefore, grant of mutation and acceptance of basic land tax from the petitioners, pursuant to Ext.P-1 registered sale deed, would not by itself create or confer title on the petitioners. It is also brought to the notice of this Court that a similar stand was also taken with respect to properties in Chinnakkanal Village of Devikulam Taluk, Idukki Revenue District and

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this Court in a series of cases as in the judgments in W.P(C)Nos.14000/2014, 21203/2013, 33418/2013 & 9524/2015, has issued directions to accept basic land tax from the respective petitioners, without prejudice to any lawful action that may be initiated against the property concerned, etc.

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9. Accordingly, it is ordered that the 5^th respondent-Tahsildar (LR) will take up the request made by the petitioners in Ext.P-9 application dated 01.02.2018, for consideration and after affording a reasonable opportunity of being heard to the petitioners and after conducting the necessary summary procedure and format in that regard, should consider the said request and grant the same, without any further delay. Orders in this regard should be duly rendered by the 5^th respondent-Tahsildar (LR), within a period of 6 weeks. Thereafter, basic land tax should also be accepted from the petitioners for the periods from the date of registration of Ext.P-1 sale deed dated 13.07.2010 and issue those receipts to the petitioners, without any further delay. The entire process in this regard should be duly completed by the 5^th respondent-Tahsildar (LR),

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within a period of 4 weeks from the date of production of a certified copy of this

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judgment.

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10. The abovesaid findings and directions made by this Court hereinabove are only from the limited point of view of issues arising out of grant of mutation and acceptance of basic land tax, as aforestated.

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With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.

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Sd/-

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ALEXANDER THOMAS, JUDGE

vgd/05.12.18

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE SALE DEED IN FAVOUR OF THE PETITIONERS REGISTERED BEFORE SRO, DEVIKULAM DATED 13.7.2010. EXHIBIT P2 TRUE COPY OF THE THANDAPER EXTRACT IN FAVOR OF ELDHO. EXHIBIT P3 TRUE COPY OF THE LOCATION SKETCH OF THE PROPERTY AS PER SALE DEED NO.1238/2006. EXHIBIT P4 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, PALLIVASAL VILLAGE DATED 22.5.2010 BEARING NO.799/2010 OF BLOCK NO.14, RESY NO.46/1-3. EXHIBIT P5 TRUE COPY OF THE SALE DEED NO.1238/2006 EXECUTED BETWEEN SHAMSUDHEEN AND ELDHO DATED 20.4.2006. EXHIBIT P6 TRUE COPY OF THE SAID SALE DEED NO.2653 OF 1994 OF SRO, DEVIKULAM DATED 3.8.1994. EXHIBIT P7 TRUE COPY OF THE PATTA CERTIFICATE ISSUED BY THE TAHSILDAR (LA) DATED 8.12.1993, DEVIKULAM TALUK ASSIGNED TO D.MARY BEARING NO.13449. EXHIBIT P8 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS BEFORE THE 3RD RESPONDENT DATED 30.4.2017. EXHIBIT P9 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS BEFORE THAHASILDAR, DEVIKULAM TALUK DATED 1.2.2018. EXHIBIT P10 TRUE COPY OF THE NEWS APPEARED IN MATHRUBHUMI DAILY DATED 31.5.2018. EXHIBIT P10 A TRUE COPY OF THE NEWS APPEARED IN MALAYALA MANORAMA DAILY DATED 29.5.2018 REGARDING SANCTION OF CONSTRUCTION IN PALLIVASAL VILLAGE.

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EXHIBIT P10 B TRUE COPY OF THE NEWS APPEARED IN DESHABHIMANI DAILY DATED 29.5.2018 REGARDING SANCTION OF CONSTRUCTION IN PALLIVASAL VILLAGE. EXHIBIT P10 C TRUE COPY OF THE NEWS APPEARED IN INDIAN EXPRESS DATED 25.6.2017. EXHIBIT P10 D TRUE COPY OF THE NEWS APPEARED IN THE TIMES OF INDIA DATED 25.6.2017. EXHIBIT P11 TRUE COPY OF THE APPLICATION SUBMITTED BY D.MARY BEFORE THE REVENUE DIVISIONAL OFFICE DATED 26.10.2017. EXHIBIT P12 TRUE COPY OF THE APPLICATION SUBMITTED BY THE IST PETITIONER BEFORE THE DISTRICT COLLECTOR, IDUKKI BEARING NO.C6/58669/18 DATED 6.7.2018.

Sreevidya Sasidharan v. State of Kerala

Case brief

What is this about?

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Sreevidya Sasidharan v. State of Kerala

Case brief

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