Disposed

George Philip v. State of Kerala

Kerala HC9 Mar 2021WP(C)/20796/2018

Case brief

AI extract

What is this about?

The Kerala High Court disposed of a writ petition challenging delays in the Mannuthy-Vadakkenchery six-lane highway project. The court directed the respondents to honor the commitments made in the sixth respondent's statement dated 24.2.2021 and complete the project by October 2021, subject to force majeure and other adverse conditions.

What did the court decide?

Petitioner's writ petition disposed of directing the respondents to honour commitments in the statement dated 24.2.2021 and complete the project by October 2021 subject to force majeure conditions.

George Philip Vs State of Kerala — Land Acquisition | Kerala HC (2021)

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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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TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942

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WP(C).No.20796 OF 2018(S)

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PETITIONER:

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GEORGE PHILIP, S/O.POTHEN, AGED 66 YEARS MANAGER, MANIMALA ESTATE, DWARAKA PLANTATIONS,PANNIYANKARA P.O, PALAKKAD DISTRICT -678 683.

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BY ADVS.

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SRI.P.R.VENKATESH SRI.G.KEERTHIVAS

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM -695 001.

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2 SECRETARY TO GOVERNMENT PUBLIC WORKS DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM -695 001.

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3 SECRETARY FOREST AND WILD LIFE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM -695 001.

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4 NATIONAL HIGHWAY AUTHORITY OF INDIA CHANDRANAGAR, PALAKKAD, REPRESENTED BY THE DIRECTOR, REGIONAL OFFICE, PALAKKAD-678 007.

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5 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF SURFACE ROAD TRANSPORT,NEW DELHI -110 001.

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6 THRISSUR EXPRESS WAY LIMITED PERAMBRA, THRISSUR DISTRICT -680 685

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WP(C).No.20796 OF 2018(S)

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7 PRAKRITHI ENGINEERING AND RAIL PVT. LTD. IRUMPUPALAM, WANIYAM PARA,REPRESENTED BY ITS MANAGING DIRECTOR,THRISSUR DISTRICT -68 012.

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ADDL. K.M.C. CONSTRUCTIONS CO.LTD R8 DOOR NO.1-80/40/SP/58-65, SHILPA HOMES LAYOUT, GACHIBOWL, HYDERABAD-500032.

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ADDL. R8 IS IMPLEADED AS PER ORDER DATED 31/07/2018 IN IA.13842/2018.

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SRI. TEK CHAND, SENIOR GOVERNMENT PLEADER SRI. NAGARAJ NARAYAN, SPECIAL GOVERNMENT PLEADER FOR FOREST

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SMT.I. SHEELA DEVI FOR R4

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.20796 OF 2018(S)

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JUDGMENT

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Dated this the 9^th day of March 2021

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S. Manikumar, CJ

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Petitioner, claims to be the Manager of Manimala Estate, situate in the border area of Thrissur and Palakkad Districts, espouse the hardship faced by thousands of vehicles, passengers and also innumerable transportation activities passing through a stretch of about 1.5 kms. lying within the border area of the districts of Thrissur and Palakkad, which is a part of National Highway 47. According to the petitioner, this is one of the most important routes connecting the State of Kerala and Tamil Nadu and the said route assumes so much importance on account of the volume of traffic that passes through the route.

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The case projected by the petitioner is that, in this stretch after a statistical study and survey, it was found that the widening of this road should be to a minimum of six lanes from the existing two lanes and not four lanes as is done in the other stretches of NH 47. According to the petitioner, this Court passed various orders in the writ petition and posted the matter several times to ensure that Thrissur Express Way Limited, Thrissur, the 6^th respondent to complete the work. Now it is going to be nearly 4 years after the

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WP(C).No.20796 OF 2018(S)

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commencement of the work and it is learnt that the Thrissur Express Way Limited, Thrissur, 6^th respondent, has given sub-contract of the tunnel work to another agency viz., Prakrithi Engineering and Rail Pvt. Ltd., Thrissur, the 7^th respondent and due to financial constraints, the 6^th respondent had made default in making payments, which resulted in stoppage of the work. According to the petitioner, it is also learnt that 80% of the work of one of the tunnels is completed and the other one is only 50%. About 70% of the road work at Vadakkenchery and over bridge work is completed and service roads in many stretches are half completed. Now a person travelling from Mannuthy will hardly get 10km fully completed stretch; almost 80% Construction of Toll Booth is over; service roads are not yet over.

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After commencement of work in the last more than 3 years, at least 15 times the works were stopped for days together on some pretexts or other, but mainly due to insufficiency of funds, but attributing reasons against the Consortium of banks, who are financing the project. But the 6^th respondent having undertaken such a huge and massive project is bound to have alternate sources to ensure that the work is not dragged. Hence the writ petition is filed seeking the following reliefs:

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a) Issue a writ of mandamus or any appropriate writ, order or direction directing the respondents to complete the Mannuthy – Vadakkenchery

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WP(C).No.20796 OF 2018(S)

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National Highway Six Lane project within a time frame to be fixed by this Hon'ble Court; and

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b) Issue such other or further orders as this Hon'ble Court may deem just and fit in the circumstances of the case.

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On this day when the matter came up for further hearing, Thrissur

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Express Way Limited, Thrissur, the 6^th respondent, has filed a statement dated

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24.2.2021, explaining the steps taken for completion of the project, which read

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thus:

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“3.Operation and Maintenance of Vadakkencherry-Thrissur section of old NH-47 from Chainage 240.00 KM to 270.00 KM. The work includes construction of 2 parallel tunnels with 3 lanes each which is having a length of approximately 960 meters, flyovers, under passes etc at various locations.

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It is submitted that progress of the work was affected due to problems related to land acquisition, opposition from the public legal proceedings, adverse weather conditions and peculiar geography and the nature of work, delay in obtaining necessary approvals, permits from the concerned authorities as well as the nonavailability of raw materials and other force majeure conditions.

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Be that as it may, the 6^th petitioner has now achieved significant progress and is hoping to complete the work without any further delay.

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It is submitted that out of the total length of 28.355 Kms black topping/tarring is completed for an average six lane length of 23.62 KMs. Thus the balance blacktopping work that is required to be completed is 4.735 KMs.

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As far as the tunnel construction is concerned, the blasting work inside the tunnel is almost over and the tunnels are structurally complete. As per the

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WP(C).No.20796 OF 2018(S)

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plan, the Left Hand Side (LHS) tunnel from Vadakkencherry will be opened up for traffic on both sides initially. Thereafter, the existing road will be closed and preparatory works to open the Right Hand Side (RHS) Tunnel will be commenced and completed at the earliest. The 6^th Respondent was delayed in starting this work due to the non-obtaining of the requisite permissions to divert forest land to execute slope protection work which is essential to ensure the safety of the vehicles entering and exiting the tunnels from falling boulders.

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At present work of the LHS tunnel is almost complete and work is going on mainly in the tunnel entry side i.e, the slope protection works. The levelling of rock and soil is completed and only the shotcrete work is remaining and in progress and is expected to be completed by end of March, 2021. The 6^th Respondent expects to handover the LHS tunnel to the National Highway. Authorities (NHAI) by end of March, 2021 who are then required to open the same for traffic after conducting safety and other mandatory audits. It is expected that the LHS tunnel will be ready for traffic diversion in the month of April, 2021.

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In the RHS tunnel the balance lining works, DLC and PQC are to be completed. It is submitted that the major sites where work is remaining to be completed are Vadakkencherry 236.135 KM, Vazhukumbara 249 KM and Pattikkad 254 KM. The 6^th respondent is hopeful that the work can be completed at Vadakkencherry by end of March, 2021, at Vazhukumbara and Pattikkad by October, 2021. The progress of the work is now affected by delays in sourcing burrow earth.

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It is submitted that the complete length of the project road is already in use and the 6^th respondent expects to obtain Provisional Completion by April, 2021 and final Completion by October, 2021 subject to force majeure and other adverse conditions.”

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WP(C).No.20796 OF 2018(S)

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Going through the statement, Mr.P.R.Venkatesh, learned counsel for petitioner, submitted that the writ petition may be disposed of recording the submissions made in the statement extracted above.

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Taking note of the averments in the statement of respondent No.6

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dated 24.2.2021, explaining the steps taken for completion of the project in question and the prayers sought for, and the submission of the learned counsel for petitioner, writ petition is disposed of directing the respondents to honour the commitments made in the statement dated 24.2.2021 in its letter and spirit, and complete the project by October, 2021, however, subject to force majeaure and other adverse conditions.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

SHAJI P.CHALY

JUDGE

smv

WP(C).No.20796 OF 2018(S)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT	P1	TRUE COPY OF DETAILS OF THE CONCESSION AGREEMENT DATED 24.8.2009
EXHIBIT	P2	TRUE COPY OF ORDER DATED 10.12.2012 IN WPC NO.20656/2012 OF THIS HON'BLE COURT.
EXHIBIT	P3	TRUE COPY OF ORDER DATED 16.1.2013 IN WPC NO.20656/2012 OF THIS HON'BLE COURT.
EXHIBIT	P4	TRUE COPY OF ORDER DATED 29.1.2013 IN WPC NO.20656/2012 OF THIS HON'BLE COURT.
EXHIBIT	P5	TRUE COPY OF ORDER DATED 2.4.2013 IN WPC NO.20656/2012 OF THIS HON'BLE COURT.
EXHIBIT	P6	TRUE COPY OF PAPER REPORT DATED 10.4.2018 APPEARED IN METRO MANORAMA.
EXHIBIT	P7	TRUE COPY OF PAPER REPORT DATED 20.5.2018 APPEARED IN MATHRUBHUMI
EXHIBIT RESPOND	P8 ENTS' EXHIBITS	TRUE COPY OF PAPER REPORT DATED 23.5.2018 APPEARED IN MALAYALA MANORAMA.
EXHIBIT	R7(A)	TRUE COPY OF RELEVANT PROVISIONS OF THE CONCESSION AGREEMENT DATED 24/08/2009 SIGNED BETWEEN RESPONDENT NO.4 AND RESPONDENT NO.6.
EXHIBIT	R7(B)	TRUE COPY OF THE LETTER DATED 10/05/2011 FROM RESPONDENT NOS. 6 AND 7 ENCLOSING A COPY OF THE ORDER DATED 03/05/2011 FROM THE OFFICE OF DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, KOCHI (ARRANGING BLASTING PERMISSION).
EXHIBIT	R7(C)	TRUE COPY OF RELEVANT PORTIONS OF THE EPC AGREEMENT DATED 3RD MAY 2010 EXECUTED BETWEEN RESPONDENT NO.6 AND KMC CONSTRUCTIONS LIMITED.

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WP(C).No.20796 OF 2018(S)

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EXHIBIT R7(D)	TRUE COPY OF THE WORK ORDER DATED 14/06/2011 ISSUED BY KMC CONSTRUCTION LIMITED (THE EPC CONTRACTOR) OF RESPONDENT NO.6.
EXHIBIT R7(E)	TRUE COPY OF THE LETTER DATED 03/10/2016 FROM PROJECT DIRECTOR OF PIU, PALAKKAD TO CGM (TECH AND RO) THIRUVANANTHAPURAM, WHEREIN IT IS ACKNOWLEDGED THAT RESPONDENT NO.7 IS THE TUNNELING CONTRACTOR.
EXHIBIT R7(F)	TRUE COPY OF THE ORDER DATED 05/01/2017 IN WRIT APPEAL NO.09/2017 SETTING ASIDE THE ORDER IN WPC NO.37039/2016.
EXHIBIT R7(G)	TRUE COPY OF THE INTERIM ORDER DATED 19/01/2018 OF THIS HON'BLE HIGH COURT IN WPC NO.2042/2017.
EXHIBIT R7(H)	TABULATION STATEMENT SHOWING THE VARIOUS DATES ON WHICH PAYMENT HAS BEEN RELEASED BY THE EPC CONTRACTOR OF R6.
EXHIBIT R7(I)	TRUE COPY OF THE LETTER DATED 26/04/2018 ISSUED BY R7 TO KMC CONSTRUCTION LIMITED (THE EPC CONTRACTOR OF R6).
EXHIBIT R7(J)	TRUE COPY OF THE STATEMENT DATED 16/05/2018 SIGNED BETWEEN THE CHIEF EXECUTIVE OF THE EPC CONTRACTOR AND DIRECTOR OF RESPONDENT NO.7 EVIDENCING THE APPROVAL OF RA BILLS UP TO JANUARY 2018 WITH WORK DONE VALUE RS.91,46,70,280/- AS PAYABLE BY KMC CONSTRUCTIONS LIMITED.
EXHIBIT R7(K)	TRUE COPY OF THE LETTER DATED 29/05/2018 FROM RESPONDENT NO.7 TO THE MANAGING DIRECTOR OF KMC CONSTRUCTIONS LIMITED TO RELEASE THE ADMITTED DEBT.
EXHIBIT R7(L)	TRUE COPY OF THE LETTER DATED 29/05/2018 FROM RESPONDENT NO.7 TO THE MANAGING DIRECTOR OF KMC CONSTRUCTIONS LIMITED TO RELEASE BALANCE AMOUNT.
EXHIBIT R7(M) COLLY	TRUE COPIES OF THE LETTERS DATED 29/06/2018 AND 30/06/2018, ADDRESSED BY RESPONDENT NO.7 TO THE MANAGING DIRECTOR OF KMC

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WP(C).No.20796 OF 2018(S)

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CONSTRUCTIONS LIMITED. (THE EPC CONTRACTOR OF RESPONDENT NO.6)

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EXHIBIT R7(N) COLLY	PHOTOGRAPHS SHOWING THE DANGEROUS NATURE OF THE PRESENT STRATA ON THE LEFT SIDE TOP OF THE TUNNEL ROAD STRETCHING ALMOST 350 METER AS WELL AS SLIDING TAKEN PLACE.
EXHIBIT R7(O)	TRUE COPY OF THE IRC CODE SP-91 PRESCRIBED FOR TUNNELING CONSTRUCTION IN INDIA.
EXHIBIT R7(P)COLLY	PHOTOGRAPHS SHOWING THE MAGNITUDE OF LAND SLIDE AT THE ENTRY OF THE PORTAL (FROM PALAKKAD SIDE) AS WELL AS ON THE EXIST SIDE OF THE NEWLY FORMED ROAD FROM EXIT SIDE LOCATION (THRISSUR SIDE).
EXHIBIT R7(Q)	TRUE COPY OF LETTER DATED 26/09/2017 ADDRESSED BY RESPONDENT NO.6 TO THE DISTRICT COLLECTOR SEEKING THE EXTEND OF FOREST LAND AS 247/330 TO 247/415 AT THE ENTRY SIDE OF TUNNEL.
EXHIBIT R7(R)	TRUE COPY OF THE SCREEN SHOT OF WHATSAPP MESSATE DATED 18/07/2018 FROM THE MANAGING DIRECTOR OF RESPONDENT NO.8 TO THE DIRECTOR OF RESPONDENT NO.7 ASSURING PAYMENT OF RS.10 CRORES AT ONE SLOT OR IN TWO INSTALLMENTS.
EXHIBIT R7(S)	TRUE COPY OF THE LETTER DATED 06/08/2018 FROM RESPONDENT NO.7 TO RESPONDENT NO.8 SEEKING SUPPLY OF MATERIALS AND PAYMENT OF 20.5 CRORES.
EXHIBIT R7(T)	TRUE COPY OF THE REPRESENTATION DATED 16/07/2018 FROM RESPONDENT NO.7 TO DISTRICT COLLECTOR AND THE ORDER OF THE DISTRICT COLLECTOR DATED 17/07/2018 (WITH ENGLISH TRANSLATION) ON THE SAID REPRESENTATION DIRECTING POLICE NOT TO ALLOW TRAFFIC THROUGH THE LEFT TUBE TUNNEL.
EXHIBIT R7(U)	TRUE COPY OF LETTER DATED 24/07/2018 FROM RESPONDENT NO.7 TO RESPONDENT NO.8 WITH COPY OF 4TH AND 6TH RESPONDENT REGARDING REPAIRS DONE AT KUTHIRAN HILL ROAD.

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WP(C).No.20796 OF 2018(S)

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SUBMITTED BY RESPONDENT NO.7 TO THE DISTRICT COLLECTOR WITH COPY TO RESPONDENT NO.6 AND RESPONDENT NO.8 REGARDING THE LAND SIDE FROM THE HILL TOP OF TUNNEL.

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EXHIBIT R7(W)

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TRUE COPY OF LETTER DATED 20/08/2017 FROM RESPONDENT NO.7 TO RESPONDENT NO.6 AND 8TH INFORMING STOPPAGE OF CONSTRUCTION ACTIVITIES AT TUNNEL DUE TO NON SUPPLY OF MATERIALS AND PROMISED AMOUNT OF RS. 10 CRORES.

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EXHIBIT R7(X) COLLY PHOTOGRAPH SHOWING THE STATE OF AFFAIRS OF THE RIGHT TUBE TUNNEL AS THE PAVEMENT QUALITY CONCRETE IS YET TO BE DONE FOR A LENGTH OF MORE THAN 750 METERS.

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EXHIBIT R7(Y) TRUE COPY OF RELEVANT PAGES OF WPC NO.2042/2017 FILED BY THE PRESENT 6TH RESPONDENT, AS PETITIONER.

George Philip v. State of Kerala

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George Philip v. State of Kerala

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