Allowed

Andrew Eapen Titus v. State of Kerala

Kerala HC19 Oct 2020WP(C)/778/2018

Case brief

AI extract

What is this about?

The Court quashed revenue recovery proceedings initiated by Aluva Municipality against former officials for audit objections regarding defective boats. The recovery was held illegal for lack of proceedings under the Kerala Local Fund Audit Act and violation of the right to hearing. Liberty was granted to the Municipality to proceed by law.

What did the court decide?

The writ petitions were disposed of; the revenue recovery proceedings were set aside; the petitioner was allowed to liquidate the fixed deposit; the lien in the Municipality's favour was revoked.

Andrew Eapen Titus Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2020)

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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 A.MUHAMED MUSTAQUE

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MONDAY, THE 19TH DAY OF OCTOBER 2020 / 27TH ASWINA, 1942

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WP(C).No.27311 OF 2016(L)

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PETITIONERS:

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1 ANNAMMA DANIEL, AGED 82 YEARS, W/O LATE K.K. DANIEL, KOIKKAL PADICKAL HOUSE, NEAR ASSISI, CANAL JEEP ROAD, ALUVA WEST VILLAGE, ALUVA TALUK, PIN - 683 101.

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*ADDL.P2 SHAJAN NINAN DANIEL, AGED 59 YEARS, S/O LATE K.K. DANIEL AND LATE ANNAMMA DANIEL, KOIKKAL PADICKAL HOUSE, NEAR ASSISI, CANAL JEEP ROAD, ALUVA WEST VILLAGE, ALUVA TALUK, PIN – 683 101.

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***(ADDITIONAL PETITIONER IMPLEADED AS PER ORDER DATED 21.08.2020 IN WPC 27311/2016).**

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BY ADVS. SRI.BABU CHERUKARA SRI.P.ANTO THOMAS

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT [RC] DEPARTMENT, THIRUVANANTHAPURAM, PIN – 695 001.

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2 THE DISTRICT COLLECTOR, ERNAKULAM, AT KAKKANADU, COCHIN-682 030.

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3 THE DEPUTY TAHSILDAR, REVENUE RECOVERY, ALUVA, PIN-683 101.

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4 ALUVA MUNICIPALITY, REPRESENTED BY IT'S SECRETARY, ALUVA, PIN-683 101.

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5 THE SECRETARY, ALUVA MUNICIPALITY, ALUVA, PIN-683 101.

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WP(C).No.27311 OF 2016(L)& Con.Cases

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*ADDL.R6 THE VILLAGE OFFICER, ALUVA WEST VILLAGE, ALUVA-683 101.

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*IS IMPLEADED AS PER ORDER DATED 27.02.2017 IN IA NO.3134/2017.

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BY ADVS. SRI.V.M.KURIAN, SC, ALUVA MUNICIPALITY SRI.MATHEW B. KURIAN SRI.K.T.THOMAS SMT. PRIYA SHANAVAS, GP

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.10.2020, ALONG WITH WP(C).36665/2016(G), WP(C).778/2018(V), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.27311 OF 2016(L)& Con.Cases

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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 A.MUHAMED MUSTAQUE

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MONDAY, THE 19TH DAY OF OCTOBER 2020 / 27TH ASWINA, 1942

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WP(C).No.36665 OF 2016

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PETITIONER:

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1. M.O.JOHN, AGED 66 YEARS, S/O.M.O. OUSO, MANJALI HOUSE, THOTTAKATTUKARA, ALUVA.

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2. M.T. JACOB, AGED 64 YEARS, S/O N.J.THOMAS, MOOTHEDAN HOUSE, ALUVA.

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3. GEORGE T.T, AGED 60 YEARS, S/O THOMMI, THANNIPPILLY HOUSE, THOTTAKKATTUKARA, ALUVA.

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*ADDL.P4 ARUN T. GEORGE, AGED 33 YEARS, S/O.LATE GEORGE, THANNIPPILLY HOUSE, THOTTAKKATTUKARA, ALUV.

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*3RD PETITIONER DIED AND HIS LEGAL HEIR IS IMPLEADED AS ADDL.4TH PETITIONER AS PER ORDER DATED 19.10.2020 IN IA NO.1/2020.

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BY ADVS. SRI.BABU CHERUKARA SRI.P.ANTO THOMAS SRI.K.K.JAYARAJ (KALLUTHARA) SMT.ROSAMMA MATHEW SRI.SEVI VARGHESE SRI.P.A.SALIM

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT [RC] DEPARTMENT.

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2 THE DISTRICT COLLECTOR, ERNAKULAM, AT KAKKANADU, COCHIN -682030.

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3 THE DEPUTY TAHSILDAR, REVENUE RECOVERY, ALUVA, PIN-683101.

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4 ALUVA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, ALUVA, PIN-683 101.

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WP(C).No.27311 OF 2016(L)& Con.Cases

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5 THE SECRETARY, ALUVA MUNICIPALITY, ALUVA, PIN-683101.

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BY ADVS.SRI.V.M.KURIAN, SC, ALUVA MUNICIPALITY SRI.MATHEW B. KURIAN SRI.K.T.THOMAS SMT.PRIYA SHANAVAS, GP

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.10.2020, ALONG WITH WP(C).27311/2016(L), WP(C).778/2018(V), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.27311 OF 2016(L)& Con.Cases

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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 A.MUHAMED MUSTAQUE

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MONDAY, THE 19TH DAY OF OCTOBER 2020 / 27TH ASWINA, 1942

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WP(C).No.778 OF 2018

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PETITIONER:

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ANDREW EAPEN TITUS, AGED 47 YEARS, S/O EAPEN ANDREWS, KOLLETU HOUSE, LITTLE FLOWER ROAD, ALUVA, ERNAKULAM, PIN- 683 101.

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BY ADVS. SRI.BABU CHERUKARA SRI.ANZAR BASHEER SRI.P.ANTO THOMAS SRI.ARUN SAMUEL SRI.E.V.GEORGE SRI.JEEMON JOHN SRI.K.K.JAYARAJ (KALLUTHARA) SMT.ROSAMMA MATHEW SRI.P.A.SALIM

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT (RC) DEPARTMENT, THIRUVANANTHAPURAM, PIN- 695 001

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2 THE DISTRICT COLLECTOR, ERNAKULAM, AT KAKKANADU, COCHIN- 682 030.

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3 THE DEPUTY TAHSILDAR, REVENUE RECOVERY, ALUVA, PIN- 683 101.

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4 ALUVA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, ALUVA, PIN- 683 101.

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5 THE SECRETARY, ALUVA MUNICIPALITY, ALUVA, PIN- 683 101.

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BY ADVS.SRI.V.M.KURIAN, SC, ALUVA MUNICIPALITY SRI.MATHEW B. KURIAN SRI.K.T.THOMAS

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SRI.S.GOPINATHAN, SR.GP

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.10.2020, ALONG WITH WP(C).27311/2016(L), WP(C).36665/2016(G), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.27311 OF 2016(L)& Con.Cases

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JUDGMENT

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[ WP(C).27311/2016, WP(C).36665/2016, WP(C).778/2018 ] Dated this the 19th day of October 2020

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These writ petitions were filed by the Former Chairman, Former Municipal Councilors and legal heirs of Municipal Level Expert Committee to start the boating facilities in Aluva Municipality. They challenge the notice of demand as well as revenue recovery proceedings against them.

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The short facts involved in this case are follows:

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The Aluva Municipal Counsel decided, on 09.06.1999, to

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purchase boats for tourism utilising the Peoples Planning Programme. The project was implemented with the approval of the Tourism Department.

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There were objections in audit report in regard to the expenditure incurred for the project. The main objection was that the Municipality suffered loss on account of defective quality of the boats purchased for the project.

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The Legislative Committee directed to recover the loss sustained by the Municipality from the members of the

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WP(C).No.27311 OF 2016(L)& Con.Cases

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Municipal Level Expert Committee which granted sanction for the purchase of boats.

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Notice was issued by the Legislative Committee demanding the amount. The same was also followed by the similar demand made by the Municipality. Consequent upon non-payment, the revenue recovery proceedings were initiated. Challenging this, the petitioners approached this Court.

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It is to be noted that the Municipality appears to have initiated the action based on the audit objection under the Kerala Local Fund Audit Act, 1994. The learned Standing Counsel also submitted the same. It is to be noted that the petitioners were not given opportunity of hearing. At any rate, the Municipality cannot raise any demand merely based on the Legislative Committee's notice. The Municipality is bound to hold proceedings in accordance with the Kerala Local Fund Audit Act and pass orders and issue certificate.

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In such circumstances, I am of the view that the revenue recovery proceedings have to be set aside. Accordingly, I do so. The Municipality is given liberty to proceed in accordance with law under the Kerala Local Fund

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WP(C).No.27311 OF 2016(L)& Con.Cases

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Audit Act after passing orders and issuing certificate. Ordered accordingly. It is open for the petitioner to canvas the objection in regard to the delay based on limitation in appropriate proceedings. It is also to be noted that this Court on 31.03.2017 passed the following interim order in W.P.(C) No.27311 of 2016:

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I.A.No.3129/2017:

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Heard. Allowed.

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Exts.P9 to P12 are accepted as the additional documents in the writ petition.

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I.A.No.3128/2017:

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Taking note of Ext.P11 and P12 documents produced by the petitioner, which indicates that an amount of Rs.1,25,000/- has been deposited by the petitioner's son, as security, for the recovery of the amounts covered by the Revenue Recovery Notice impugned in the writ petition, against the petitioner, there will be a direction to the Village Officer, Aluva West Village, to issue a fresh location sketch Possession and Non attachment certificate to the petitioner in respect of her residential property in Sy.No.32, Town Block No.59, Aluva West Village, without any mention of the Revenue Recovery proceedings against the petitioner as per the notice R4-2315/15, within a period of two weeks from today.

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I have already found that the recovery is bad in law as same is initiated without any proper proceedings under the Kerala

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Local Fund Audit Act to recover the same, therefore, Smt. Annamma Daniel, the writ petitioner in W.P.(C)No.27311 of 2016

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WP(C).No.27311 OF 2016(L)& Con.Cases

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or her son is free to liquidate the fixed deposit furnished as

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security. The lien marked in favour of the Municipality accordingly is revoked.

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The writ petitions are disposed of as above.

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Sd/A.MUHAMED MUSTAQUE JUDGE

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akv

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WP(C).No.27311 OF 2016(L)& Con.Cases

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APPENDIX OF WP(C) 27311/2016

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE DOCKET SHEET OF THE TECHNICAL SANCTION OF THE BOATS BEARING NO.5/99 PROJECT NO.8/98-99 DATED 26.2.1999.
EXHIBIT P2	TRUE COPY OF THE NOTICE BEARING NO.E4- 1738/99 DATED 16.8.2008.
EXHIBIT P3	TRUE COPY OF THE EXPLANATION GIVEN BY THE CHAIRMAN MR.M.O.JOHN BEARING NO.E4/8303/08 DATED 25.08.2008 TO THE 5TH RESPONDENT.
EXHIBIT P4	TRUE COPY OF THE NOTICE ISSUED BY THE MUNICIPAL SECRETARY TO THE PETITIONER BEARING NO.E4-1738/99 DATED 12.05.2015.
EXHIBIT P5	TRUE COPY OF THE EXPLANATION ADDRESSED TO THE HONOURABLE MINISTER FOR URBAN AFFAIRS DATED 23.06.2015 BY THE PETITIONER & OTHERS.
EXHIBIT P6	TRUE COPY OF THE NOTICE NO.334/ RC3/ 2015/ LSGD DATED 29.06.2015.
EXHIBIT P7	TRUE COPY OF THE NOTICE NO.1/3019190/2015 ISSUED BY THE PRINCIPAL SECRETARY TO LSG [RC] DEPARTMENT DATED 23.07.2015.
EXHIBIT P8	TRUE COPY OF THE REVENUE RECOVERY NOTICE DATED 25.09.2015 ISSUED BY THE DEPUTY TAHSILDAR, REVENUE RECOVERY ALUVA.
EXHIBIT P9	TRUE COPY OF THE POSSESSION AND NON ATTACHMENT CERTIFICATE DATED 14.12.2016.
EXHIBIT P10	TRUE COPY OF THE POSSESSION AND NON ATTACHMENT CERTIFICATE DATED 14.12.2016.
EXHIBIT P11	A TRUE PHOTOSTAT COPY OF FIXED DEPOSIT CERTIFICATE DATED 16.2.2017 AT UNION BANK OF INDIA, TRIKKAKARA BRANCH AS PER CERTIFICATE NO.000085952 WITH DEPOSIT NO.385403030189203.
EXHIBIT P12	TRUE PHOTOSTAT COPY OF THE LETTER ISSUED BY THE BANK MANAGER, UNION BANK OF INDIA, TRIKKAKARA BRANCH DATED 16.2.2017 WITH
	LETTER REFERENCE NO.UBI/EKM/TKRA/2016-17.

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WP(C).No.27311 OF 2016(L)& Con.Cases

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EXHIBIT P13 TRUE COPY OF THE DEMAND DRAFT DATED 1.10.2018 IN THE NAME OF SPECIAL TAHSILDAR, ALUVA.

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EXHIBIT P14 TRUE COPY OF THE RECEIPT FOR CASH ISSUED BY THE VILLAGE OFFICER, ALUVA WEST VILLAGE OFFICE DATED 1.10.2018.

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EXHIBIT P15 TRUE COPY OF THE PROTEST LETTER DATED

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1.10.2018 BY THE PETITIONER TO THE VILLAGE OFFICER, ALUVA WEST VILLAGE.

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RESPONDENT'S/S EXHIBITS : NIL.

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//TRUE COPY// P.A. TO JUDGE

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WP(C).No.27311 OF 2016(L)& Con.Cases

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE DOCKET SHEET OF THE TECHNICAL SANCTION OF THE BOATS BEARING NO.5/99 PROJECT NO.8/98-99 DATED 26.2.1999.
EXHIBIT P2	TRUE COPY OF THE NOTICE BEARING NO.E4- 1738/99 DATED 16.8.2008.
EXHIBIT P3	TRUE COPY OF THE EXPLANATION GIVEN BY THE 1ST PETITIONER BEARING NO.E4/8303/08 DATED 25.08.2008 TO THE 5TH RESPONDENT.
EXHIBIT P4	TRUE COPY OF THE NOTICE ISSUED BY THE MUNICIPAL SECRETARY TO THE PETITIONER BEARING NO.E4-1738/99 DATED 12.05.2015.
EXHIBIT P5	TRUE COPY OF THE EXPLANATION ADDRESSED TO THE HONOURABLE MINISTER FOR URBAN AFFAIRS DATED 23.06.2015 BY THE PETITIONER & OTHERS.
EXHIBIT P6	TRUE COPY OF THE NOTICE NO.334/ RC3/ 2015/ LSGD DATED 29.06.2015.
EXHIBIT P7	TRUE PHOTOSTAT COPY OF THE LETTER ISSUED BY 2ND PETITIONER TO THE 5TH RESPONDENT UNDER RIGHT TO INFORMATION ACT.
EXHIBIT P8	TRUE PHOTOSTAT COPY OF THE REPLY BY 5TH RESPONDENT BEARING NO. P10/E2/12302/16 DATED 07/11/2016 INDER RIGHT TO INFORMATION ACT.
EXHIBIT P9	TRUE COPY OF THE NOTICE NO.1/3019190/2015 ISSUED BY THE PRINCIPAL SECRETARY TO LSG[RC] DEPARTMENT DATED 23.07.2015.
EXHIBIT P10	TRUE COPY OF THE WRITTEN EXPLANATION FILED BY THE PETITIONERS BEFORE THE SECRETARY [URBAN AFFAIRS] AT THIRUVANANTHAPURAM DATED 25.08.2015.
EXHIBIT P11	TRUE COPY OF THE INTIMATION DATED 8.8.2016 TO THE 5TH RESPONDENT.

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WP(C).No.27311 OF 2016(L)& Con.Cases

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EXHIBIT P12 TRUE COPY OF THE REVENUE RECOVERY NOTICE ADDRESSED TO THE 1ST PETITIONER DATED 22.09.2015 ISSUED BY THE DEPUTY TAHSILDAR, REVENUE RECOVERY ALUVA.

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EXHIBIT P13 TRUE COPY OF THE REVENUE RECOVERY NOTICE ADDRESSED TO THE 2ND PETITIONER DATED 22.09.2015 ISSUED BY THE DEPUTY TAHSILDAR, REVENUE RECOVERY ALUVA.

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EXHIBIT P14 TRUE COPY OF THE REVENUE RECOVERY NOTICE ADDRESSED TO THE 3RD PETITIONER DATED 22.09.2015 ISSUED BY THE DEPUTY TAHSILDAR, REVENUE RECOVERY ALUVA.

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RESPONDENT'S/S EXHIBITS : NIL.

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//TRUE COPY// P.A. TO JUDGE

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WP(C).No.27311 OF 2016(L)& Con.Cases

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APPENDIX OF WP(C) 778/2018

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE DOCKET SHEET OF THE TECHNICAL SANCTION OF BOATS BEARING NO.5/99 PROJECT NO.8/98-99 EXHIBIT P2 TRUE COPY OF THE DEATH CERTIFICATE OF THE LATE EAPEN ANDREWS EXHIBIT P3 TRUE COPY OF REVENUE RECOVERY NOTICE TO THE LEGAL HEIRS OF LATE EAPEN ANDREWS DATED 23.02.2017. EXHIBIT P4 TRUE COPY OF THE INTERIM ORDER IN WPC NO.27311/2016 OF THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM, DATED 18-08-2016 EXHIBIT P5 TRUE COPY OF THE INTERIM ORDER IN WPC NO.36665/2016 OF THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM DATED 16-11-2016.

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RESPONDENT'S/S EXHIBITS : NIL.

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//TRUE COPY// P.A. TO JUDGE

Andrew Eapen Titus v. State of Kerala

Case brief

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Andrew Eapen Titus v. State of Kerala

Case brief

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