Partly allowed

Faziludeen v. Anvar Hussain

Kerala HC9 Dec 2020WP(C)/611/2019

Case brief

AI extract

What is this about?

The Court set aside the Tribunal's order cancelling a building permit. It restrained the petitioners from further construction without a development permit and directed the Corporation Secretary to refer the neighbour's complaint to a Technical Expert Committee for redressal.

What did the court decide?

Impugned order cancelling permit set aside; petitioners restrained from construction without development permit; Secretary directed to refer complaint to Technical Expert Committee within three weeks.

Faziludeen Vs Anvar Hussain — Property and Title | Kerala HC (2020)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

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WEDNESDAY, THE 09TH DAY OF DECEMBER 2020 / 18TH AGRAHAYANA, 1942

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WP(C).No.34172 OF 2018(V)

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PETITIONERS:

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1 FAZILUDEEN, AGED 52 YEARS, S/O.ABDUL MAJEED, RESIDING AT FARHANA MANZIL, NAVAYIKULAM, PARAKUNNU P.O, CHIRAYIAKKAL THALUK, THIRUVANANTHAPURAM DISTRICT, PIN 695 603.

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2 SHAHBANATH, AGED 44 YEARS, W/O.FAZILUDEEN, RESIDING AT FARHANA MANZIL, NAVAYIKULAM, PARAKUNNU.P.O, CHIRAYIAKKAL THALUK, THIRUVANANTHAPURAM DISTRICT, PIN-695603.

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BY ADVS. SRI.A.JANI(KOLLAM) SRI.G.SIVASANKAR SMT.L.JYOTHY KUMARI SRI.S.SREEKUMAR (SR.)

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RESPONDENTS:

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1 ANVAR HUSSAIN, AGED 57 YEARS S/O.LATE AHAMED HUSSAIN, RESIDING AT KAIKKARA MANSION, T.P.NAGAR-149, BEACH ROAD, THAMARAKKULAM, KOLLAM EAST VILLAGE, KOLLAM 691 001.

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2 THE SECRETARY, KOLLAM CORPORATION, KOLLAM CORPORATION OFFICE, CHINNAKKADA, KOLLAM, PIN691 001.

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3 THE ASSISTANT EXECUTIVE ENGINEER, KOLLAM CORPORATION, KOLLAM CORPORATION OFFICE, CHINNKKADA, KOLLAM, PIN-691 001.

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R1 BY ADV. SRI.V.AJAKUMAR R1 BY ADV. SRI.SIDHARTH A.MENON

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W.P.(C). Nos. 34172/2018 & 611/2019

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..2..

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R2 BY SRI.M.K.CHANDRA MOHAN DAS,SC,KOLLAM MPT

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-11-2020, ALONG WITH WP(C).611/2019(B), THE COURT ON 09-12-2020 DELIVERED THE FOLLOWING:

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W.P.(C). Nos. 34172/2018 & 611/2019

¶20

..3..

¶21

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

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WEDNESDAY, THE 09TH DAY OF DECEMBER 2020 / 18TH AGRAHAYANA, 1942

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WP(C).No.611 OF 2019(B)

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PETITIONERS:

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1 FAZILUDEEN, AGED 52 YEARS, S/O ABDUL MAJEED, RESIDING AT FARHANA MANZIL, NAVAYIKULAM, PARAKUNNU P.O, CHIRAYIAKKAL THALUK, THIRUVANANTHAPURAM DISTRICT, PIN 695 603.

¶28

2 SHAHBANATH, AGED 44 YEARS, W/O FAZILUDEEN, RESIDING AT FARHANA MANZIL, NAVAYIKULAM, PARAKUNNU P.O, CHIRAYIAKKAL THALUK, THIRUVANANTHAPURAM DISTRICT, PIN 695 603.

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BY ADVS. SRI.A.JANI(KOLLAM) SRI.G.SIVASANKAR SMT.L.JYOTHY KUMARI

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RESPONDENTS:

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1 ANVAR HUSSAIN, AGED 57 YEARS, S/O LATE AHAMED HUSSAIN, RESIDING AT KAIKKARA MANSION, T.P NAGAR-149, BEACH ROAD, THAMARAKKULAM, KOLLAM EAST VILLAGE, KOLLAM 691 001.

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2 THE SECRETARY, KOLLAM CORPORATION, KOLLAM CORPORATION OFFICE, CHINNAKKADA, KOLLAM PIN 691 001.

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3 THE ASSISTANT EXECUTIVE ENGINEER, KOLLAM CORPORATION, KOLLAM CORPORATION OFFICE, CHINNAKKADA, KOLLAM PIN 691 001.

¶34

W.P.(C). Nos. 34172/2018 & 611/2019

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..4..

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4 BEENA RANI, AGED 50 YEARS, W/O YAHIYA, RESIDING AT KAIKKARA MANSION, T.P NAGAR-149, BEACH ROAD, THAMARAKKULAM, KOLLAM PIN 691 001.

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R1, R4 BY ADV. SRI.V.AJAKUMAR R1, R4 BY ADV. SRI.SIDHARTH A.MENON R2 BY SRI.M.K.CHANDRA MOHAN DAS,SC,KOLLAM MPT

¶38

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-11-2020, ALONG WITH WP(C).34172/2018(V), THE COURT ON 09-12-2020 DELIVERED THE FOLLOWING:

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W.P.(C). Nos. 34172/2018 & 611/2019

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..5..

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JUDGMENT

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Dated this the 9th day of December 2020

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The petitioners in both the writ petitions are one and the

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same. The matter is relating to a dispute between the petitioners and the 1^st respondent.

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The petitioners namely, Faziludeen and Shabanath

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are the joint owners of the property comprised in Re. Sy. No. 36/3 of Kollam East Village within Kollam Corporation. The 1^st respondent - Anvar Hussain is having a property adjacent to the property of the petitioners. The dispute arose on account of the construction undertaken by the petitioners pursuant to a building permit obtained from the Kollam Corporation.

¶47

The petitioners obtained the building permit on 7.10.2016. The building permit was for constructing a commercial - cum - residential building. The petitioners commenced the construction by piling the land. Anvar Hussain

¶48

..6..

¶49

W.P.(C). Nos. 34172/2018 & 611/2019

¶50

raised a complaint against the construction. Anvar Hussain also approached the Tribunal for Local Self Government Institutions, Thiruvananthapuram, challenging Ext.P1 building permit. The appeal was registered as Appeal No. 1094 of 2016. The Tribunal appears to have granted interim orders against the construction. An application was filed by the petitioners to remove the sheet piling work done, pending appeal and that was dismissed. This order is challenged in W.P.(C)No. 34172/2018.

¶51

The Tribunal allowed the appeal filed by Anvar Hussain. The building permit granted to the petitioners has been set aside. This order of the Tribunal is impugned in W.P. (C)No. 611 of 2019.

¶52

The Tribunal found that excavation is required to a depth more than 1.5 mts as per the permit. Therefore, without obtaining a development permit, the building permit could not have been issued to the petitioners.

¶53

W.P.(C). Nos. 34172/2018 & 611/2019

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..7..

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Rule 11A of the Kerala Municipality Building Rules,

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1999 (for short the Rules) contemplates the requisites of development permit, if construction involves any earthwork excavation to a depth of more than 1.5 mts.

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Admittedly, no development permit was obtained by the petitioners. Though the petitioners as well as the Kollam Corporation have a case that the proposed construction does not involve any earthwork excavation to a depth of more than 1.5 mts, I find no reason to interfere with the findings of fact entered into by the Tribunal. The Tribunal entered into the finding to the extent of excavation by placing reliance on a copy of the approved plan and therefore, I affirm the finding of fact.

¶58

The only question, therefore, arises is that whether the building permit is liable to be revoked or not.

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The Kollam Corporation ought not to have issued the building permit without verifying the excavation involved.

¶60

W.P.(C). Nos. 34172/2018 & 611/2019

¶61

Excavation and piling may affect the property of the neighbouring owners. Rules contemplate the redressal of grievances of the persons, who are affected by such construction. Therefore, without adverting to the complaint of Anvar Hussain, further construction cannot be undertaken by the petitioners. Rule 11 A of the Rules contemplates the redressal of grievances of the neighbouring owners. As seen from Rule 11A (5) and (8) of the Rules, the Secretary, on receipt of such complaint, has to refer the complaint to the Technical Expert Committee. It is for the Technical Evaluation Committee to address the grievances of Anver Hussain and to resolve his grievances.

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Having considered the dispute in the perspective of the facts and circumstances as above, I am of the view that without setting aside the building permit, the grievance of Anvar Hussain cannot be redressed.

¶63

W.P.(C). Nos. 34172/2018 & 611/2019

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..9..

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The Secretary of Kollam Corporation has to consider

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the complaint and refer it to the Technical Expert Committee. The petitioners will have to apply for a development permit. The further construction by the petitioners will depend upon the grant of development permit and the redressal of grievance of Anvar Hussain by the Technical Expert Committee. If the Technical Expert Committee suggests recommendations before permitting the construction by the petitioners, compliance of the directions of the Committee must be ensured. Accordingly, these writ petitions are disposed of with the following directions:

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(i) The impugned order in W.P.(C)No. 611/2019, cancelling the building permit is set aside.

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(ii) The petitioners are restrained from undertaking the construction without obtaining the development permit and complying the decision of the Technical Expert Committee.

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W.P.(C). Nos. 34172/2018 & 611/2019

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..10..

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(iii) The Secretary of the Kollam Corporation is directed

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to refer the complaint of Anvar Hussain to the Technical Expert

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Committee under Rule 11 A (8) of the Rules within a period of three weeks.

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(iv) Anvar Hussain is at liberty to raise all his grievances before the Technical Expert Committee.

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(v) The Technical Expert Committee, shall take a decision within a further period of three weeks. The Technical Expert Committee, shall give an opportunity of hearing to both parties before taking a decision.

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Sd/-

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A.MUHAMED MUSTAQUE

JUDGE

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W.P.(C). Nos. 34172/2018 & 611/2019

¶82

APPENDIX OF WP(C) 34172/2018

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PETITIONERS EXHIBITS:

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EXHIBIT P1	TRUE COPY OF TRUE COPY BUILDING PERMIT NO:PW 7-BA-57/16-17 WITH SITE PLAN ISSUED BY 2ND RESPONDENT.
EXHIBIT P2	TRUE COPY OF PLAINT IN O.S.NO.890 OF 2016 OF MUNSIFF COURT, KOLLAM.
EXHIBIT P3	TRUE COPY OF I.A.NO.4694 OF 2016 PREFERRED IN EXHIBIT P2 SUIT.
EXHIBIT P4	TRUE COPY OF APPEAL MEMORANDUM IN APPEAL NO.1094 OF 2016 PENDING BEFORE LSG TRIBUNAL.
EXHIBIT P5	TRUE COPY OF DECISION TAKEN IN THE PRESENCE OF MAYOR, KOLLAM CORPORATION.
EXHIBIT P6	TRUE COPY OF EXPERT OPINION ANNEXED WITH ADVOCATE COMMISSIONER'S REPORT.
EXHIBIT P7	TRUE COPY OF ORDER IN WP(C)NO.4553 OF 2017 OF THIS HONOURABLE COURT.
EXHIBIT P8	TRUE COPY OF ORDER IN R.P.NO.1141 OF 2017 IN EXHIBIT P7 WRIT PETITION.
EXHIBIT P9	TRUE COPY OF TECHNICAL EXPERT COMMITTEE REPORT.
EXHIBIT P10	TRUE COPY OF APPEAL MEMORANDUM IN APPEAL NO.104 OF 2018 PENDING BEFORE THE LSG TRIBUNAL, THIRUVANANTHAPURAM.
EXHIBIT P11	TRUE COPY OF JOINT REPORT SUBMITTED BY ADVOCATE COMMISSIONER AND TECHNICAL EXPERT IN EXHIBIT P10 APPEAL.
EXHIBIT P12	TRUE COPY OF ADVOCATE COMMISSIONER'S

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W.P.(C). Nos. 34172/2018 & 611/2019

¶86

..12..

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REPORT IN EXHIBIT P4 APPEAL.

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EXHIBIT P13 TRUE COPY I.A.TRUE COPY OF ORDER IN WP(C)9055 OF 2018 OF THIS HONOURABLE COURT:38 OF 2017 PREFERRED IN EXHIBIT P4 APPEAL.

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EXHIBIT P14 TRUE COPY OF JUDGMENT IN WP(C)9055 OF 2018 OF THIS HONOURABLE COURT. EXHIBIT P15 TRUE COPY OF ORDER IN IA.38 OF 2017 IN APPEAL NO.1094 OF 2016 OF LSG TRIBUNAL, THIRUVANANTHAPURAM.

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RESPONDENTS EXHIBITS:

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EXHIBIT R1(A)	TRUE COPY OF THE	ORIGINAL PLAN.
EXHIBIT R1(AA)	TRUE COPY OF THE	EXHIBIT P1 PLAN.
EXHIBIT R1(B)	PHOTOGRAPHS SHOW POSITION OF THE EXCAVATION.	ING THE ACTUAL LIE AND PROPERTIES AFTER
EXHIBIT R1(C)	TRUE COPY OF THE ADVOCATE COMMISS P2 CASE (OS NO.8	REPORT OF THE IONER FILED IN EXHIBIT 90/2016).
EXHIBIT R1(D)	TRUE COPY OF THE ALONG WITH ORDER IN EXHIBIT P2 CA	INJUNCTION PETITION OF INJUNCTION PASSED SE (O.S NO.890/2016)
EXHIBIT R1(E)	TRUE COPY OF THE 07/11/2016 IN IA APPEAL NO.1094/2	ORDER OF STAY DATED NO.1927/2016 IN 016.
EXHIBIT R1(F)	THE PHOTOGRAPHS WALL AND DAMAGE	SHOWING THE COLLAPSED TO THE BUILDING.
EXHIBIT R1(G)	TRUE COPY OF THE 21/11/2016.	ORDER DATED
EXHIBIT R1(H)	TRUE COPY OF THE ORDER IN IA 2270	ADVOCATE COMMISSIONER /2016.

¶92

..13..

¶93

W.P.(C). Nos. 34172/2018 & 611/2019

¶94

EXHIBIT R1(I)	TRUE DATED	COPY 22/1	OF 2/2	THE 016.	PRELIMINARY REPORT
EXHIBIT R1(J)	TRUE KHAN.	COPY	OF	THE	REPORT OF ER. M.M.
EXHIBIT R1(K)	TRUE SAJI.	COPY	OF	THE	REPORT OF MR. S.L.
EXHIBIT R1(L)	TRUE 09/01	COPY /2017	OF IN	THE IA	ORDER DATED NO.6/2017.
EXHIBIT R1(M)	TRUE COMMI	COPY SSION	OF ER	THE ABDU	REPORT OF ADVOCATE LLAH.
EXHIBIT R1(N)	TRUE KUMAR	COPY .	OF	THE	REPORT OF ER. PRAMOD
EXHIBIT R1(O)	TRUE 24/01	COPY /2017	OF IN	THE IA	ORDER DATED NO.143/2017.
EXHIBIT R1(P)	TRUE 28/01	COPY /2017	OF .	THE	REPORT DATED
EXHIBIT R1(Q)	TRUE REPOR	COPY T OF	OF DR.	THE BUS	REQUEST OF SE AND THE HARA.
EXHIBIT R1(R)	TRUE	COPY	OF	THE	REPORT.
EXHIBIT R1(S)	TRUE	COPY	OF	THE	REPORT.
EXHIBIT R1(T)	TRUE 08/01 COMMI	COPY /2018 TTEE.	OF OF	THE THE	ORDER DATED TECHNICAL EXPERT
EXHIBIT R1(U)	TRUE COMMI APPOI	COPY SSION NTED	OF ER IN	THE AND IA N	REPORT OF ADVOCATE EXPERT COMMISSIONER O.214/2018.
EXHIBIT R1(V)	TRUE REPOR	COPY T.	OF	OBJE	CTION TO EXHIBIT P11

¶95

..14..

¶96

W.P.(C). Nos. 34172/2018 & 611/2019

¶97

APPENDIX OF WP(C) 611/2019

¶98

PETITIONERS EXHIBITS:

¶99

EXHIBIT P1	TRUE COPY BUILDING PERMIT NO-PW 7-BA- 57/16-17 WITH SITE PLAN ISSUED BY 2ND RESPONDENT.
EXHIBIT P2	TRUE COPY OF PLAINT IN O.S NO:890 OF 2016 OF MUNSIFF COURT, KOLLAM.
EXHIBIT P3	TRUE COPY OF I.A NO:4694 OF 2016 PREFERRED IN EXHIBIT P2 SUIT.
EXHIBIT P4	TRUE COPY OF APPEAL MEMORANDUM IN APPEAL NO:1094 OF 2016 PENDING BEFORE LSG TRIBUNAL.
EXHIBIT P5	TRUE COPY OF DECISION TAKEN IN THE PRESENCE OF MAYOR, KOLLAM CORPORATION.
EXHIBIT P6	TRUE COPY OF EXPERT OPINION ANNEXED WITH ADVOCATE COMMISSIONER'S REPORT.
EXHIBIT P7	TRUE COPY OF ORDER IN W.P(C) NO: 4553 OF 2017 OF THIS HONOURABLE COURT.
EXHIBIT P8	TRUE COPY OF ORDER IN R.P NO: 1141 OF 2017 IN EXHIBIT P 7 WRIT PETITION.
EXHIBIT P9	TRUE COPY OF TECHNICAL EXPERT COMMITTEE REPORT.
EXHIBIT P10	TRUE COPY OF JOINT REPORT SUBMITTED BY ADVOCATE COMMISSIONER AND TECHNICAL EXPERT IN EXHIBIT P 10 APPEAL.
EXHIBIT P11	TRUE COPY OF ADVOCATE COMMISSIONER'S REPORT IN EXHIBIT P 4 APPEAL.
EXHIBIT P12	TRUE COPY I.A NO: 38 OF 2017 PREFERRED IN EXHIBIT P 4 APPEAL.

¶100

W.P.(C). Nos. 34172/2018 & 611/2019

¶101

..15..

¶102

EXHIBIT P13 TRUE COPY OF ORDER IN W.P(C) 9055 OF 2018 OF THIS HONOURABLE COURT. EXHIBIT P14 TRUE COPY OF ORDER IN I.A 38 OF 2017 IN APPEAL NO: 1094 OF 2016 OF LSG TRIBUNAL, THIRUVANANTHAPURAM. EXHIBIT P15 TRUE COPY OF THE ORDER OF LSG TRIBUNAL IN APPEAL NO: 1094 OF 2016.

¶103

RESPONDENTS EXHIBITS:

¶104

EXHIBIT	R1(A) TRUE COPY OF THE	ORIGINAL PLAN.
EXHIBIT	R1(AA) TRUE COPY OF THE	EXHIBIT P1 PLAN.
EXHIBIT	R1(B) PHOTOGRAPHS SHOW POSITION OF THE EXCAVATION.	ING THE ACTUAL LIE AND PROPERTIES AFTER
EXHIBIT	R1(C) TRUE COPY OF THE ADVOCATE COMMISS P2 CASE (OS NO.8	REPORT OF THE IONER FILED IN EXHIBIT 90/2016).
EXHIBIT	R1(D) TRUE COPY OF THE ALONG WITH ORDER IN EXHIBIT P2 CA	INJUNCTION PETITION OF INJUNCTION PASSED SE (O.S NO.890/2016)
EXHIBIT	R1(E) TRUE COPY OF THE 07/11/2016 IN IA APPEAL NO.1094/2	ORDER OF STAY DATED NO.1927/2016 IN 016.
EXHIBIT	R1(F) THE PHOTOGRAPHS WALL AND DAMAGE	SHOWING THE COLLAPSED TO THE BUILDING.
EXHIBIT	R1(G) TRUE COPY OF THE 21/11/2016.	ORDER DATED
EXHIBIT	R1(H) TRUE COPY OF THE 20.12.2016 IN IA	ORDER DATED 2270/2016.
EXHIBIT	R1(I) TRUE COPY OF THE DATED 22/12/2016	PRELIMINARY REPORT .

¶105

..16..

¶106

W.P.(C). Nos. 34172/2018 & 611/2019

¶107

EXHIBIT R1(J)	TRUE KHAN.	COPY	OF	THE	REPORT OF ER. M.M.
EXHIBIT R1(K)	TRUE SAJI.	COPY	OF	THE	REPORT OF MR. S.L.
EXHIBIT R1(L)	TRUE 09/01	COPY /2017	OF IN	THE IA	ORDER DATED NO.6/2017.
EXHIBIT R1(M)	TRUE COMMI	COPY SSION	OF ER	THE ABDU	REPORT OF ADVOCATE LLAH.
EXHIBIT R1(N)	TRUE KUMAR	COPY .	OF	THE	REPORT OF ER. PRAMOD
EXHIBIT R1(O)	TRUE 24/01	COPY /2017	OF IN	THE IA	ORDER DATED NO.143/2017.
EXHIBIT R1(P)	TRUE 28/01	COPY /2017	OF .	THE	REPORT DATED
EXHIBIT R1(Q)	TRUE REPOR	COPY T OF	OF DR.	THE BUS	REQUEST OF SE AND THE HARA.
EXHIBIT R1(R)	TRUE	COPY	OF	THE	REPORT.
EXHIBIT R1(S)	TRUE	COPY	OF	THE	REPORT.
EXHIBIT R1(T)	TRUE 08/01 COMMI	COPY /2018 TTEE.	OF OF	THE THE	ORDER DATED TECHNICAL EXPERT
EXHIBIT R1(U)	TRUE COMMI APPOI	COPY SSION NTED	OF ER IN	THE AND IA N	REPORT OF ADVOCATE EXPERT COMMISSIONER O.214/2018.
EXHIBIT R1(V)	TRUE REPOR	COPY T.	OF	OBJE	CTION TO EXT.P11
EXHIBIT (W)	PHOTO COMMI	GRAPH SSION	S T ER'	AKEN S VI	AT THE TIME OF SIT (3 NOS.)

Faziludeen v. Anvar Hussain

Case brief

What is this about?

What did the court decide?

Faziludeen v. Anvar Hussain

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Faziludeen Vs Anvar Hussain