Disposed

Antony Karippasserry v. State of Kerala

Kerala HC29 Jan 2021WP(C)/11181/2015

Case brief

AI extract

What is this about?

Writ petition sought free internet connectivity for educational institutions, disclosure of unused fibre revenue, and collection of road usage fees from telecom operators. Court noted State had accorded administrative sanction for the K-FON Project and completed one-third work.

What did the court decide?

Disposed without issuing mandamus; directed work to be expedited and completed as scheduled.

Antony Karippasserry Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2021)

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WP(C).No.11181 OF 2015(S) -1-

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942

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WP(C).No.11181 OF 2015(S)

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PETITIONER/S:

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ANTONY KARIPPASSERRY AGED 46 YEARS

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PATTATHIL CHIRA HOUSE, KANDAMKARY PO, ALAPPUZHA - 699 573.

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BY ADVS. SRI.JOMY GEORGE SRI.SEBASTIAN THOMAS

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIT, THIRUVANANTHAPURAM - 695 001.

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2 DIRECTOR KERALA STATE INFORMATION TECHNOLOGY MISSION, DEPARTMENT OF INFORMATION TECHNOLOGY, GOVERNMENT OF KEALA, THIRUVANANTHAPURAM - 695 001.

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3 SECRETARY

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PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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4 SECRETARY LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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5 SECRETARY EDUCATIONAL DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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6 CHIEF EXECUTIVE OFFICER ASIANET COMMUNICATION LIMITED., ASIANET COMPLEX, PULIYARAKONAM PO, THIRUVANANTHAPURAM - 695 573.

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WP(C).No.11181 OF 2015(S) -2-

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7 CHIEF EXECUTIVE OFFICER BHARATHI AIRTEL LIMITED, ZODIAC SQUARE, 2ND FLOOR, N.H.BYPASS, KUNDANOOR JUNCTION, MARADU PO-682 304.

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8 CHIEF EXECUTIVE OFFICER IDEA CELLULAR LTD., 2ND FLOOR, MERCY ESTATE, RAVIPURAM PO, ERNAKULAM DISTRICT, 682 015.

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9 CHIEF EXECUTIVE OFFICER VODAFONE CELLULAR LIMITED., 4TH FLOOR, ANGELS ARCADE, SOUTH KALAMASSERY PO, ERNAKULAM DISTRICT - 682 022.

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10 CHIEF EXECUTIVE OFFICER TATA COMMUNICATIONS LIMITED, VIDESH SANCHAR BHAVAN, KAKKANADU PO, ERNAKULAM DISTRICT - 682 030.

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11 CHIEF EXECUTIVE OFFICER TATA TELESERVICES LIMITED, TATA DOCOMO, 5TH FLOOR, S.L.PLAZA, PALARIVATTOM PO, ERNAKULAM DISTRICT - 682 025.

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12 CHIEF EXECUTIVE OFFICER RELIANCE COMMUNICATION LIMITED, A & P ARCADE, S.A.ROAD, KADAVANTHARA, COCHIN - 682 016.

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13 CHIEF EXECUTIVE OFFICER KERALA COMMUNICATION NET WORK PRIVATE LIMITED, C/O.RELIANCE COMMUNICATION LIMITED, A&P ARCADE, S.A.ROAD, KADAVANTHARA, COCHIN - 682 016.

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14 STATE CONSTRUCTION HEAD

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RELIANCE JIJO INFOCOMM LIMITED, 4TH FLOOR, CHANDRIKA BUILDING, S.A.ROAD, VYTTILA PO, ERNAKULAM DISTRICT - 682 019.

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OTHER PRESENT:

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SRISURIN GEORGE IPE SR GP FOR R1 TO R5

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-01-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.11181 OF 2015(S) -3-

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J UD G M E N T

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Dated this the 29^th day of January, 2021

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S. Manikumar, C. J.

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Instant writ petition has been filed seeking for the following reliefs:-

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(a) issue writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 to 5 to ensure that respondents 6 to 14 are providing free internet/communication connectivity with required bandwidth to all educational institutions, both Government and in the aided sector, that fall in the route of their optic fibre network as contemplated in Exhibits P-1 to P- 4.

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(b) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 6 to 14 to declare the details of the fibre network drawn by them and the details of the unused ducts and unused free fibre (dark fibre) drawn in excess and the details of thelease/license given by them to other telecom operators for using the unused ducts and unused free fibre.

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(c) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 6 to 14 to disclose the revenue earned through inter leasing of unused free fibre and free ducts to other telecom companies and operators

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WP(C).No.11181 OF 2015(S) -4-

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(d) issue a writ of mandamus or any other appropriate writ order or direction directing the respondents 1 to 5 to collect a fixed percentage of revenue from the respondents 6 to 14 and other similar operators for using the road network of the State for laying the optic fibre cables.

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(e) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 and 2 to cancel permit/licence given to respondents 6 to 14 for drawing fibre net work along the public roads in Kerala.

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Short facts leading to filing of the writ petition are as

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hereunder:-

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According to the petitioner, the Chief Secretary, Government of Kerala, Government Secretariat, Thiruvananthapuram, 1^st respondent, by Exts. P1 to P4 Government Orders, granted permission to telecom companies, for laying fiber optic communication network, across national highways, state highways, and other public properties, on the condition that, they shall provide free internet access, to all the Government and aided educational institutions, falling along the route map, and free internet access, wherever there are tapping points. From the information gathered under the Right to Information Act, 2005, it is revealed that, the respondents 6 to 14, haven't provided any internet

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WP(C).No.11181 OF 2015(S) -5-

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access, to any of the Government or aided educational institutions, in the State. It is also revealed that, Government of Kerala is not collecting any rent / usage charges, from respondents 6 to 14, for granting right of way permission, for laying cable, through the road network of the State. At the same time, respondents 6 to 14 have earned unauthorized income, running to several hundred crores of rupees, by leasing unused ducts, and unused free fiber, drawn in excess, to other telecom companies.

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Petitioner has submitted that, though the matter was brought to the attention of respondents 1 to 5, they did not take any action in the matter. Being aggrieved, instant writ petition is filed.

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In support of his contention, petitioner has relied on Exts. P1 to P5 Government Orders.

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On 21.01.2021, when the matter came up for hearing, we passed the following order:-

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“Instant public interest litigation is filed for a direction to respondents 6 to 14 to provide free internet access to all Government and aided educational institutions as provided in Exhibits P1 to P4 Government Orders.

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WP(C).No.11181 OF 2015(S) -6-

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Learned Government Pleader submitted that Kerala State Cabinet accorded administrative sanction for Rs.1548 crore for K-Fon project which is aimed at providing free high speed internet connection to over 20 lakh BPL families in Kerala. It is submitted that this project aims to strengthen the internet backbone of the State and to provide free or subsidised internet connection to people. Learned Government Pleader seeks time to file a statement/counter affidavit as the case may be.”

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Reverting on the basis of G. O. (Ms) No. 10/2017/ITD dated 18.05.2017, Mr. Surin George Ipe, learned senior Government Pleader submitted that, administrative sanction has been accorded, for implementing Kerala Fibre Optic Network (K-FON) Project, for a sum of Rs. 1028 Crores.

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Learned senior Government Pleader further submitted that,

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the project includes, an expenditure for providing free internet, to 20 lakh poor families. For brievity, the abovesaid Government Order is extracted hereunder:-

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“ GOVERNMENT OF KERALA Abstract

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Electronics and Information Technology Department - Kerala Fibre Optic Network (K-FON) Project - Administrative Sanction Accorded - Orders Issued

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ELECTRONICS & INFORMATION TECHNOLOGY (B) DEPARTMENT G.O.(Ms) No. 10/2017/ITD Dated, Thiruvananthapuram, 18/05/2017

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WP(C).No.11181 OF 2015(S) -7-

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Read:- Letter No. KSWAN/34/2017-KSITM/514 dated 03/05/2017 from the Director, Kerala State IT Mission, Thiruvananthapuram.

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ORDER

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In the budget speech 2017 (Paras 131 & 132) Hon'ble Finance Minister has announced that free internet connections will be provided to 20 lakh BPL families. For others, cost effective state of the art internet services will be provided through an optical fibre network at affordable rate. Thus Kerala is poised Lo become the only State in India where internet facility will be the right of the citizen. The universal basic internet facility will be made available to all citizens and Government machinery through a now optic fiber pathway created in parallel to KSEB electric power network. It was also announced that the fund needed for the capital investment will be provided through KIIFB.

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Towards achieving this goal, a state wide optical network named Kerala Fibre Optic Network (K-FON) need be established. Kerala Fibre Optie Network (K-FON) aims to build a state wide optical fibre network infrastructure for providing high speed connectivity to all Government, educational institutions (approx. 30,000 numbers) and leveraging the network to the Telecom/Internet service providers on non discriminatory basis to provide quality and affordable internet services to the citizens. The network will provide ensured quality access to Government and non-Governmental services, apart from educational, health, social welfare, entertainment and knowledge bused service facilities to common people through computer and mobile phone

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The draft DPR was presented before the Apex Committee on e-Governance headed by Chief Secretary held on 26.4.2017 discussed the matter and directed to take immediate necessary steps to issue Administrative Sanction for the project. As per letter read above, the Director, Kerala State IT Mission has submitted Detailed Project

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WP(C).No.11181 OF 2015(S) -8-

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Report at an estimate cost of Rs 1028.20 crores excluding taxes, with the following components:-

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Sl. No.	Description	Amount in INR Crores
1.	Settingupof Crore Network	475.40
2.	Settingupof Access Network	432.00
3.	Operational charges per year (Core and Access network)	104.40
4.	Establishment to SPV and operations	16.40
Total A	mount(Exclusive of Taxes)	Rs. 1028.20

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The expenditure for providing free internet to 20 Lakh poor families will be in addition to the above amount. A delivery model will be worked out and an open tender will be floated to provide connectivity to such families.

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In the above circumstances and in accordance with stage 1 (2) of guidelines for availing financial resources from KIIFB, Government are pleased to accord Administrative Sanction for implementing Kerala Fiber Optic Network (K-FON) Project at an estimated cost of Rs. 1028.20 Crores (Rupees One Thousand Twenty Eight Crores and Twenty Lakh only) excluding taxes.

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Government are also pleased to designate Kerala State Information Technology Infrastructure Ltd. (KSITIL) as the implementing agency of this project Managing Director, KSITIL is authorised to take steps to implement the project through a competitive tendering process once the approval from KIIFB is obtained Managing Director, KSITIL will also submit a comprehensive proposal outlining the constitution of the PMU, on the functional arrangement proposed with KSEBL and strengthening of KSITIL as an effective SPV to implement the project in a time bound manner. The project needs to be made fully operational in 18 months.

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By order of the Governor M SIVASANKAR SECRETARY”

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WP(C).No.11181 OF 2015(S) -9-

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Mr. Surin George Ipe, learned senior Government Pleader, also submitted that, revised administrative sanction and approval of tender, has been issued in G. O. (Ms) No. 27/2019/ITD dated 11.11.2019, and that, tender in favour of consortium M/s Bharat Electronics Limited, has been approved.

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In addition to the above, based on the intra departmental correspondence between Managing Director, Kerala State IT Infrastructure Limited, Thiruvananthapuram and the Secretary to the Government, E & IT (B) Department, Thiruvananthapuram, Mr. Surin George Ipe, learned Senior Government Pleader further submitted that, 32% of the project has already been completed, and it is expected that, the first phase of the project, would be completed during February, 2021. It is also stated thereunder, that the agency was selected by the Kerala State IT Infrastructure Limited, by e-tender, and three companies, namely, A2Z Infra Engineering Limited, Bharat Electronics Limited and Telecommunication Consultants India Limited, participated in the tender process.

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Inasmuch as, State of Kerala, and other competent authorities, have taken appropriate steps for providing free internet /

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WP(C).No.11181 OF 2015(S) -10-

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communication connectivity, with required bandwidth, to all educational institutions, and also to 20 lakh poor families, and consequently, 1/3rd of the project has already been completed, there is no need to issue any mandamus, as prayed for.

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There is no need to go into the reliefs sought for in paragraphs 'b' to 'e', as they are not incidental to the main relief, for providing free internet / communication connectivity.

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Placing on record the submissions of the learned Senior Government Pleader, duly supported with the Government Orders extracted supra, writ petition is disposed of. Work undertaken be expedited and completed as scheduled.

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Sd/-

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S.MANIKUMAR CHIEF JUSTICE

Sd/-

SHAJI P.CHALY

JUDGE

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

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WP(C).No.11181 OF 2015(S) -11-

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	EXT.P1: THE GOVERNMENT ORDER NO.G.O. (MS) NO.4/2002/ITD DATED 20.4.2002.
EXHIBIT P2	EXT.P2: TRUE COPY OF THE GOVERNMENT ORDER DATED 30.04.2010 NO.G.O.(MS) NO.16/2010/ITD.
EXHIBIT P3	EXT.P3: TRUE COPY OF THE GOVERNMENT ORDER DATED 14.6.2013 NO.G.O.(MS) NO.30/13/ITD.
EXHIBIT P4	EXT.P4: TRUE COPY OF THE GOVERNMENT ORDER DATED 11.10.2013 NO.G.O.(MS) NO.30/13/ITD.
EXHIBIT P5	EXT.P5: TRUE COPY OF THE GOVERNMENT ORDER DATED 29.1.2014 NO.G.O.(MS) NO.6/2014/ITD.
EXHIBIT P6	EXT.P6: TRUE COPY OF THE REQUEST FOR INFORMATION UNDER RIGHT TO INFORMATION ACT SUBMITTED BY THE PETITIONER BEFORE THE PUBLIC INFORMATION OFFICER DATED 10.4.2014.
EXHIBIT P7	EXT.P7: TRUE COPY OF THE REPLY DATED 15.5.2014 GIVEN BY THE STATE PUBLIC INFORAMATION OFFICER TO EXHIBIT P6.
EXHIBIT P8	EXT.P8:TRUE COPY OF THE INFORMATION DATED 11.09.2014 GATHERED BY THE PETITIONER FROM COCHIN CORPORATION.
EXHIBIT P9	EXT.P9: THE INFORMATION FURNISHED BY THE APPELLATE AUTHORITY DATED 16.9.2014.
EXHIBIT P10	EXT.P10: TRUE COPY OF THE REQUEST DATED 3.10.2014 SUBMITTED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT.
EXHIBIT P11	EXT.P11: TRUE COPY OF THE INFORMATION DATED 14.11.2014 FURNISHED BY KERALA STATE INFORMATION TECHNOLOGY MISSION.
EXHIBIT P12	EXT.P12: TRUE COPY OF THE INFORMATION DATED 9.10.2014 FURNISHED FROM THE OFFICE OF THE PWD ROADS AND BRIDGES, THIRUVANANTHAPURAM.

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WP(C).No.11181 OF 2015(S) -12-

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EXHIBIT P13 EXT.P13: THE TRUE COPY OF THE REQUEST MADE BY THE PETITIONER ON 27.10.2014 TO THE CHIEF ENGINEER.

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EXHIBIT P14 EXT.P14: TRUE COPY OF THE REPRESENTATION DATED 23.1.2015 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT WITH COPY TO MINISTERS FOR INFORMATION AND TECHNOLOGY AND PWD.

Antony Karippasserry v. State of Kerala

Case brief

What is this about?

What did the court decide?

Antony Karippasserry v. State of Kerala

Case brief

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