Quashed

Santhamma J., v. State of Kerala

Kerala HC5 Jul 2021WP(C)/3133/2021

Case brief

AI extract

What is this about?

The Court quashed notices issued by an Assistant Executive Engineer under S.15(2) of the Kerala Highway Protection Act, 1999 as the issuing authority lacked jurisdiction. The matter was remanded to the competent Executive Engineer to take steps after affording the petitioners an opportunity of being heard.

What did the court decide?

The impugned notices issued by the Assistant Executive Engineer were quashed. The matter was remanded to the Executive Engineer to take steps after affording the petitioners an opportunity of being he

Santhamma J., Vs State of Kerala — Writ and Judicial Review | Kerala HC (2021)

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WP(C)Nos.5423,3133&3719 OF 2021

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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 RAJA VIJAYARAGHAVAN V MONDAY, THE 5^TH DAY OF JULY 2021 / 14TH ASHADHA, 1943 WP(C) NO. 5423 OF 2021

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PETITIONER/S:

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SANTHOSH KUMAR AGED 45 YEARS S/O. GOPALAKRISHNAN PILLAI, KRISHNA BHAVAN, NADUTHERI, THALAVOOR P.O., KOLLAM-691 508.

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BY ADVS. RENJITH B.MARAR SMT.LAKSHMI.N.KAIMAL SHRI.ARUN POOMULLI SHRI.BIJU VIGNESWAR SMT.SURABHI SANTHOSH SHRI.MEERA M.

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RESPONDENT/S:

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

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2 DISTRICT COLLECTOR COLLECTORATE, KOLLAM-691 013.

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3 TAHSILDAR (LAND ASSIGNMENT) TALUK OFFICE, PATHANAPURAM-691 305.

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4 THE ASSISTANT ENGINEER PWD ROAD SECTION, PATHANAPURAM-691 305.

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5 J.SANTHAMMA PERUMBALATHU PADINJATTIL VEEDU, NJAARAKKATTU, THALAVOOR P.O., KOLLAM-691 508.

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WP(C)Nos.5423,3133&3719 OF 2021

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6 THE SECRETARY, THALAVOOR GRAMA PANCHAYAT, GRAMA PANCHAYAT OFFICE, KUNNICODE-PATTAZHI ROAD, THALAVOOR P.O., KOLLAM-691 514.

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7 THE EXECUTIVE ENGINEER PWD ROAD SECTION, PATHANAPURAM-691 305.

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8 THE ASSISTANT EXECUTIVE ENGINEER PWD ROAD SECTION, PATHANAPURAM-691 305.

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ADDL.R9 THE EXECUTIVE ENGINEER, PWD ROAD DIVISION, KOLLAM 691001.

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*ADDL R9 IS SUO MOTU IMPLEADED AS PER ORDER DATED 5.7.2021.

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BY ADV SRI.M.R.SARITH, SC

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SRI.B.MOHANLAL, FOR R5

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.07.2021, ALONG WITH WP(C).3133/2021, 3719/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C)Nos.5423,3133&3719 OF 2021

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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 RAJA VIJAYARAGHAVAN V

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MONDAY, THE 5^TH DAY OF JULY 2021 / 14TH ASHADHA, 1943

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WP(C) NO. 3133 OF 2021

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PETITIONER/S:

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SANTHAMMA J., AGED 72 YEARS W/O LATE GANGADHARA KURUP, PERUMBALATH PADINJATTATHIL, THALAVOOR VILLAGE, KOTTARAKKARA, KOLLAM.

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BY ADV B.MOHANLAL

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 THE DISTRICT COLLECTOR, COLLECTORATE, CIVIL LINES, CUTCHERY P.O., KOLLAM-691 013.

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3 THE REVENUE DIVISIONAL OFFICER, PUNALUR, PUNALUR P.O.KOLLAM-691 508.

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4 THE TAHASILDAR, TALUK OFFICE, PATHANAPURAM P.O., KOLLAM-691 508.

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5 THE VILLAGE OFFICER, THALAVOOR VILLAGE, THALAVOOR P.O., KOTTARAKKARA, KOLLAM-691 508.

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6 THE ASSISTANT ENGINEER, P.W.D.ROAD SECTION, PATHANAPURAM P.O., KOLLAM-691 508.

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WP(C)Nos.5423,3133&3719 OF 2021

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7 THE THALAVOOR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, THALAVOOR P.O., KOLLAM-691 508.

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8 SRI. KRISHNA KUMAR @ SANTHOSH KUMAR, S/O LATE OMANA AMMA, CHERIYIL VEEDU (KRISHNA BHAVAN), NADUTHERI, PATHANAPURAM, THALAVOOR P.O.KOLLAM-691 508.

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BY ADVS. SRI.M.R.SASITH SRI.RENJITH B.MARAR SMT.LAKSHMI.N.KAIMAL SHRI.ARUN POOMULLI SHRI.BIJU VIGNESWAR SHRI.MEERA M. SMT.SURABHI SANTHOSH

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.07.2021, ALONG WITH WP(C).5423/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C)Nos.5423,3133&3719 OF 2021

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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 RAJA VIJAYARAGHAVAN V

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MONDAY, THE 5^TH DAY OF JULY 2021 / 14TH ASHADHA, 1943

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WP(C) NO. 3719 OF 2021

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PETITIONER/S:

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SANTHOSH KUMAR AGED 45 YEARS

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S/O.GOPALAKRISHNAN PILLAI, KRISHNA BHVAN, NADUTHERI, THALAVOOR P.O., KOLLAM-691 508.

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BY ADVS. RENJITH B.MARAR SMT.LAKSHMI.N.KAIMAL SHRI.ARUN POOMULLI SMT.SURABHI SANTHOSH SHRI.BIJU VIGNESWAR SHRI.MEERA M.

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RESPONDENT/S:

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

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2 DISTRICT COLLECTOR, COLLECTORATE, KOLLAM-691 013.

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3 TAHSILDAR (LAND ASSIGNMENT), TALUK OFFICE, PATHANAPURAM-691 305.

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4 THE ASSISTANT ENGINEER, PWD ROAD SECTION, PATHANAPURAM-691 305.

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5 J.SANTHAMMA, PERUMBALATHU PADINJATTIL VEEDU, NJAARAKKATTU, THALAVOOR P.O., KOLLAM DISTRICT-691 508.

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WP(C)Nos.5423,3133&3719 OF 2021

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*ADDL R6 THE SECRETARY, THALAVOOR GRAMA PANCHAYAT, GRAMA PANCHAYAT OFFICE, KUNNICODE-PATTAZHI ROAD, THALAVOOR.P.O., KOLLAM-691514. (ADDL.R6. IS IMPLEADED AS PER ORDER DATED 17-022021 IN IA 2/2021 IN WP(C) 3719/2021.

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BY ADV SRI.M.R.SASITH

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.07.2021, ALONG WITH WP(C).5423/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C)Nos.5423,3133&3719 OF 2021

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JUDGMENT

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W.P.(C) No.5423 of 2021 and W.P.(C) 3719 of 2021 have been

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preferred by the very same petitioner challenging the notice issued by the Assistant Executive Engineer invoking the powers under Section 15(2) of the Kerala Highway Protection Act, 1999 calling upon the petitioner to remove a petty shop put up by the side of the National Highway.

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W.P.(C) No.3133 of 2021 has been preferred by one Santhamma

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complaining that the petitioner in W.P.(C) No.5423 of 2021 was obstructing the access to her property and to issue necessary directions to the official respondents to remove the petty shop constructed by Sri. Santhosh Kumar encroaching upon the Highway puramboke.

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I have heard Sri. Renjith B. Marar, the learned counsel appearing for the petitioner in W.P.(C) No.5423/2021 and W.P.(C) No. 3719/2021, Sri.B. Mohan Lal, the learned counsel appearing for the petitioner in W.P.(C) No. 3133/2021 and the learned Government Pleader.

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On instructions, the learned Government Pleader fairly submitted that the competent authority to issue a notice under Section 15(2) of the

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Highway Protection Act, 1999 is the Executive Engineer, but in the instant case, the same has been issued by a subordinate officer. It is further submitted that the officer who has to exercise jurisdiction is the Executive Engineer, PWD Road Division, Kollam-691001, who has not been arrayed as a respondent in any of the writ petitions.

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The Executive Engineer, PWD Road Division, Kollam-691001 is suo moto impleaded as additional 9th respondent in WP(C) No.5423 of 2021. Carry out the impleadment. As the issues raised in all these writ petitions are interconnected, these matters are taken up and are disposed of by a common order.

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The impugned notices have been issued by an authority that has not been conferred with any powers to invoke Section 15(2) of the Highway Protection Act, 1999. In that view of the matter, Ext.P7 in WP(C).No.5423 of 2021 and Ext.P5 in WP(C).No.3719 of 2021 will stand quashed. If the Executive Engineer, PWD Road Division, Kollam-691001 is satisfied that any portions of the Highway have been encroached by the petitioner in WP(C).No. 5423 of 2021, he shall expeditiously take steps invoking Section 15(2) of the Act and have the encroachment summarily removed. Before taking any decision, the said respondent shall afford an opportunity of being heard to the petitioners in both these writ petitions.

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The entire proceedings shall be finalised expeditiously, in any event, within a period of two months from the date of production of a copy of this judgment.

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These writ petitions are disposed of.

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Sd/-

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RAJA VIJAYARAGHAVAN V

JUDGE

APPENDIX OF WP(C) 5423/2021

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	A TRUE COPY OF THE ELECTRICITY BILL WITH CONSUMER NO.C1146855002715 ISSUED IN THE NAME OF PETITIONER'S FATHER MR. GOPALAKRISHNAN PILLAI B.
EXHIBIT P2	TRUE COPY OF THE LETTER DATED 24.2.2020 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P3	A TRUE COPY OF THE LETTER DATED 30.4.2019 ISSUED BY 3RD RESPONDENT TO THE 4TH RESPONDENT.
EXHIBIT P4	A TRUE COPY OF THE LETTERVIDE NO.B7- 2110/19 DATED 19.11.2020 ISSUED BY THE RESPONDENT NO.3 TO RESPONDENT NO.4.
EXHIBIT P5	A TRUE COPY OF THE NOTICE DATED 26.11.2020 ISSUED BY THE 4TH RESPONDENT TO PETITIONER'S MOTHER, SMT. OMANAMMA.
EXHIBIT P6	A TRUE COPY OF THE APPLICATION PREFERRED BY THE PETITIONER'S MOTHER DATED 1.12.2020.
EXHIBIT P7	A TRUE COPY OF THE NOTICE DATED 19.2.2021 ISSUED BY THE 8TH RESPONDENT TO PETITIONER.
EXHIBIT P8	TRUE COPY PHOTOGRAPH OF THE MADAKKADA (C- CLASS SHOP).

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RESPONDENTS EXHIBITS:NIL

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APPENDIX OF WP(C) 3133/2021

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PETITIONER'S EXHIBITS:

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EXHIBIT	P1	THE TRUE COPY OF THE TAX RECEIPT DATED 4.5.2020 FOR THE YEAR 2020-21 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER
EXHIBIT	P2	THE TRUE PHOTOGRAPH OF THE PETTY SHOP ERECTED BY THE MOTHER OF THE 8TH RESPONDENT IN RANDALUMMOODU JUNCTION IN THALAVOOR
EXHIBIT	P3	THE TRUE COPY OF THE PETITION DATED 13.7.2020 FILED BY SRI.O.D.DINESH KUMAR UNDER RIGHT TI INFORMATION ACT BEFORE THE 6TH RESPONDENT AND ITS REPLY NO P.S 4/R1/2016 DATED 12.8.2020 ISSUED BY THE 6TH RESPONDENT
EXHIBIT	P4	THE TRUE COPY OF THE REPRESENTATION DATED 19.10.2020 SUBMITTED BY THE PETITIONER BEFORE THE 6TH RESPONDENT
EXHIBIT	P5	THE TRUE COPY OF THE REPRESENTATION DATED 29.10.2020 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT
EXHIBIT	P6	THE TRUE COPY OF THE COMPLAINT DATED 17.12.2020 FILED BY THE PETITIONER BEFORE THE MINISTER FOR PWD
EXHIBIT	P6 (A)	THE TRUE COPY OF THE COMMUNICATION NO E- 4830734 M(PWD & R) 2020 DATED 24.12.2020 ISSUED FROM THE OFFICE OF THE MINISTER FOR PWD, THIRUVANANTHAPURAM
EXHIBIT	P7	THE TRUE COPY OF THE APPLICATION DATED 17.12.2020 SUBMITTED BY THE PETITIONER BEFORE THE 6TH RESPONDENT UNDER RIGHT TO INFORMATION ACT AND ITS REPLY NO P.S.7/R/I/2016 DATED 16.1.2021 SENT BY THE 6TH RESPONDENT
EXHIBIT	P8	THE TRUE COPY OF THE NEWS ITEM APPEARED IN

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THE MATHRUBHUMI DAILY DATED 31.12.2020

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EXHIBIT P9 THE TRUE PHOTOGRAPH OF THE SHOP RECONSTRUCTED BY THE 8TH RESPONDENT IN RANDALUMOODU JUNCTION IN THALAVOOR

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EXHIBIT P10 THE TRUE COPY OF THE COMPLAINT DATED 28.1.2021 SUBMITTED BY THE PETITIONER BEFORE THE 7TH RESPONDENT AND RESPONDENTS 2 TO 6

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RESPONDENTS EXHIBITS:NIL

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APPENDIX OF WP(C) 3719/2021

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 A TRUE COPY OF THE ELECTRICITY BILL WITH CONSUMER NO.C1146855002715 ISSUED IN THE NAME OF PETITIONER'S FATHER MR.GOPALAKRISHNAN PILLAI.B. EXHIBIT P2 TRUE COPY OF THE LETTER DATED 24.02.2020 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P3 A TRUE COPY OF THE LETTER DATED 30.04.2019 ISSUED BY 3RD RESPONDENT TO THE 4TH RESPONDENT. EXHIBIT P4 A TRUE COPY OF THE LETTER VIDE NO.B72110/19 DATED 09.11.2020 ISSUED BY THE RESPONDENT NO.3 TO RESPONDENT NO.4. EXHIBIT P5 TRUE COPY OF THE NOTICE DATED 26.11.2020 ISSUED BY THE 4TH RESPONDENT TO PETITIONER'S MOTHER, SMT.OMANAMMA. EXHIBIT P6 A TRUE COPY OF THE APPLICATION PREFERRED BY THE PETITIONER'S MOTHER DATED 01.12.2020. EXHIBIT P7 TRUE COPY PHOTOGRAPH OF THE MADAKKADA (CCLASS SHOP)

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RESPONDENTS EXHIBITS:NIL

Santhamma J., v. State of Kerala

Case brief

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Santhamma J., v. State of Kerala

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