Quashed

M/S the Kairali Nagar Resident'S Association, v. the State of Kerala

Kerala HC1 Dec 2022WP(C)/19423/2022

Case brief

AI extract

What is this about?

The Court quashed an order by the Sub Collector assigning joint liability for constructing lateral support to a housing association and the State Housing Board without hearing them, finding a violation of natural justice. Directions were issued for a site inspection and fresh orders by the District Collector.

What did the court decide?

Ext. P12 order quashed; Direction to District Collector to pass fresh orders after hearing parties post site inspection by Deputy Collector (Disaster Management).

M/S the Kairali Nagar Resident'S Association, Vs the… — Landlord and Tenant | Kerala HC (2022)

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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 MURALI PURUSHOTHAMAN

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THURSDAY, THE 1ST DAY OF DECEMBER 2022 / 10TH AGRAHAYANA, 1944

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WP(C) NO. 19423 OF 2022

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PETITIONER:

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M/S THE KAIRALI NAGAR RESIDENT'S ASSOCIATION,
CHOONDI, ALUVA,REPRESENTED BY ITS SECRETARY P P JACOB,
AGED 75, S/O PEROO, PLOT NO 81, KAIRALI NAGAR, CHOONDI,
ERUMATHALA P O, ERNAKULAM DISTRICT-683 112.

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BY ADV G.SREEKUMAR (CHELUR)

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RESPONDENTS:

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1 THE STATE OF KERALA,REP. BY THE SECRETARY TO THE GOVERNMENT,DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM DISTRICT-695 001.

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2 THE EDATHALA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, EDATHALA NORTH P O, ALUVA, ERNAKULAM DISTRICT - 683 564.

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3 THE KERALA STATE HOUSING BOARD,ERNAKULAM DIVISION, REPRESENTED BY ITS EXECUTIVE ENGINEER, KERALA STATE HOUSING BOARD,COCHIN, ERNAKULAM DISTRICT-680011.

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4 THE DISTRICT COLLECTOR, OFFICE OF THE DISTRICT COLLECTOR, COLLECTORATE, KAKKANADU P O, ERNAKULAM DISTRICT-682 021.

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5 THE SUB COLLECTOR/REVENUE DIVISIONAL OFFICER, OFFICE OF THE SUB COLLECTOR, FORT COCHIN P O, ERNAKULAM DISTRICT- PINCODE-682 001.

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6 VAHID SHEREEF,AGE AND OTHER PERSONAL DETAILS LIKE THE NAME OF THE FATHER ETC NOT KNOWN, HOUSE NO 2/376 B, ROSE NAGAR, ERUMATHALA PO, CHOONDI, ALUVA, ERNAKULAM DISTRICT683 112.

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7 BABU P K, AGED 52, S/O KUNJUVAREED, PAYYAPILLY HOUSE, KAIRALI NAGAR, ERUMATHALA P O, CHOONDI, ALUVA, ERNAKULAM DISTRICT-683 112.

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8 RANI,AGE 60, W/O LATE BABU, NINAR HOUSE, KAIRALI NAGAR, ERUMATHALA PO, CHOONDI, ALUVA, ERNAKULAM DISTRICT-683 112.

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9 RANJITH,AGED 31, S/O LATE BABU, NINAR HOUSE, KAIRALI NAGAR,ERUMATHALA PO, CHOONDI, ALUVA, ERNAKULAM DISTRICT683 112.

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*10 DISTRICT GEOLOGIST ERNAKULAM.

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*(ADDITIONAL R10 IS SUO MOTU IMPLEADED AS PER ORDER
DATED 21.11.2022 IN WP(C)19423/2022).

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BY ADVS.
SRI.G.SANTHOSH KUMAR (P), SC, EDATHALA GRAMA
PANCHAYATH
SRI.HARISH VASUDEVAN
SRI.B.PREMOD
SMT.SURYA BINOY-SR.GOVT.PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
01.12.2022, ALONG WITH WP(C).27092/2022, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:

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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 MURALI PURUSHOTHAMAN

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THURSDAY, THE 1^ST DAY OF DECEMBER 2022 / 10TH AGRAHAYANA, 1944 WP(C) NO. 27092 OF 2022

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PETITIONERS:

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1 THE KERALA STATE HOUSING BOARD,REPRESENTED BY ITS SECRETARY, HEAD OFFICE,TRIVANDRUM- 695 001

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2 THE EXECUTIVE ENGINEER,KERALA STATE HOUSING BOARD, RNAKULAM DIVISION,5TH FLOOR,REVENUE TOWERS,ERNAKULAM BY ADV SRI.HARISH VASUDEVAN

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RESPONDENTS:

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1 THE DISTRICT COLLECTOR,ERNAKULAM, CIVIL STATION, KAKKANAD, ERNAKULAM- 682 030

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2 THE SUB COLLECTOR,OR REVENUE DIVISIONAL OFFICER, FORT KOCHI, ERNAKULAM- 682 001.

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3 M/S KAIRALI NAGAR RESIDENTS ASSOCIATION,CHOONDI,ALUVA, REPRESENTED BY ITS SECRETARYP.P JACOB,S/O PEROOR,PLOT NO.81

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KAIRALI NAGAR,CHOONDI,ERUMATHALA P.O,ERNAKULAM-683 112.

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4 VAHID SHERIF K,HOUSE NO.2/376B, ROSE NAGAR, ERNAKULAM683 112.

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5 BABU P.K,AGED 52 YEARS,S/O.KUNJUVAREED, PAYYAPPILLI (H),ERUMATHALA P.O,CHOONDI,ALUVA, ERNAKULAM- 683 112

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6 RANI,AGED 60 YEARS,W/O LATE BABU, NINAR (H), ERUMATHALA P.O, CHOONDI, ALUVA, ERNAKULAM- 683 112.

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7 RENJITH,AGED 31 YEARS,S/O. LATE BABU, NINAR (H), ERUMATHALA P.O, CHOONDI, ALUVA, ERNAKULAM- 683 112

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8 EDATHALA GRAMA PANCHAYAT,REPRESENTED BY ITS SECRETARY, EDATHALA, ALUVA, ERNAKULAM-683 563.

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*9 DISTRICT GEOLOGIST, ERNAKULAM.*(IS SUO MOTU IMPLEADED AS PER ORDER DATED 21-11-2022 IN WP(C).

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BY ADVS.

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G.SREEKUMAR (CHELUR)
SHRI.G.SANTHOSH KUMAR (P), SC, EDATHALA GRAMA

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PANCHAYATH
SMT.SURYA BINOY-SR.GOVT.PLEADER
SRI.B PREMOD

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY ON
01.12.2022,ALONG WITH WP(C).19423/2022, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:

JUDGMENT

Since Common issues arise for consideration in these writ petitions, they were heard together and are disposed of by this common judgment. The respondents and the exhibits referred to hereinbelow shall be as obtaining in W.P.(C) No. 19423/2022.

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W.P.(C) No. 19423/2022 is filed by the Kairali Nagar Resident's Association, Choondi, Aluva (hereinafter referred to as the 'Association', for short), an association of the residents in the Choondi Housing Accommodation Scheme of the Kerala State Housing Board ('KSHB', for short), challenging Ext.P12 order of the Sub Collector, Fort Kochi, casting liability in removing soil close to the property of complainant/respondents 6 to 9 without providing lateral support and directing the Association and the KSHB to take urgent steps to build lateral support in the property of the complainants to prevent landslips and accidents.

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W.P.(C) No. 27092/2022 is filed by KSHB challenging Ext. P12 to the extent it imposes responsibility on them for

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building lateral support to the property of respondents 6 to 9.

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The respondents 4 and 5, and the predecessor in

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interest of respondents 6 and 7 had approached this Court by filing W.P.(C) No. 28021/2020 for direction to the KSHB to provide adequate lateral support to their property by constructing retaining wall with sufficient foundation and adequate strength along the boundary of the property of the petitioners. The petitioners therein contended that the Association had removed soil close to their property at a depth of 3.5 meters without providing any lateral support and consequently their buildings were on the verge of collapse. It was further contended that though the Tahsildar, Aluva had forwarded a report to the Sub Collector explaining the seriousness of the situation and the immediate necessity for construction of strong retaining wall to protect their property, the Sub Collector did not proceed further under Section 133 of the Code of Criminal Procedure. The said writ petition was disposed of by this Court by Ext. P5 judgment directing the Sub Collector to consider the report of the Tahsildar and to take a

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decision in the matter with notice to the petitioners therein and the Association. The relevant portion of the said judgment is extracted hereunder:

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“5. Going through the pleadings in the writ petition and the arguments raised by the counsel on either side, this Court is of the view that since the issue involves disputed questions of fact and since the Tahsildar has already reported the situation to the Sub Collector, it will be only appropriate to direct the Sub Collector to consider the issue and take remedial measures, if warranted.

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Accordingly, the writ petition is disposed of directing the 3^rd respondent to consider Ext.P13 report submitted by the Tahsildar, Aluva and take appropriate action as is permissible under law, if the situation so warrants. The 3^rd respondent shall take a decision in the matter within a period of four weeks positively, with notice to the petitioners, and the 4^th respondent.”

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Pursuant to Ext. P5 judgment, the Sub Collector, by Ext. P12, ordered that lateral support shall be built in the complaint property as the joint responsibility of the Association and the

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KSHB to avoid landslips and accidents.

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The Association impugns Ext. P12 contending, inter alia, that none of the objections raised by the Association was adverted to in Ext. P12 order and there is no mention in the order about the materials relied on by the Association. The Association contends that absence of site inspection by the Sub Collector, as part of the enquiry, has made the enquiry a fractured one and the liability has been fastened on the Association in violation of the principles of natural justice.

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The KSHB would contend that Ext. P12 order is passed by the Sub Collector without affording an opportunity of hearing to them. The Sub Collector has ordered therein that lateral support shall be built as the joint responsibility of the Association and the KSHB. The KSHB contends that Ext. P12 to

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the extent it imposes responsibility on them for building lateral support, without hearing them, is arbitrary and violative of the principles of natural justice.

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A detailed counter affidavit has been filed by respondents 6 to 9 referring to various proceedings and stating

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that their houses are on the verge of collapse due to the excavation done by the Association and there is imminent danger and the order of the Sub Collector has to be implemented forthwith.

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Heard Sri. G. Sreekumar Chelur, the learned counsel for the petitioner in W.P.(C)No.19423/2022 and Sri.Harish Vasudevan, the learned counsel for the petitioners in W.P. (C)No.27092/2022, Sri. G.Santhosh Kumar, the learned counsel for the Panchayat, Sri. B. Premod, the learned counsel for respondents 6 to 9 and Smt. Surya Binoy, the learned Senior Government Pleader.

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Ext. P12 order is passed by the Sub Collector without hearing the KSHB. In Ext.P12, the Sub Collector has ordered that lateral support shall be built as the joint responsibility of the Association and the KSHB. Ext. P12 to the extent it imposes responsibility on the KSHB for building lateral support without hearing them is violative of the principles of natural justice. Further, Ext. P12 shows that none of the contentions of the parties has been adverted to. Therefore, I hold that Ext. P12 is

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bad for violation of the principles of natural justice and also for not adverting to the contentions raised by the parties. Accordingly, Ext. P12 will stand quashed. Since the matter requires fresh consideration and taking note of the urgency of the situation, I asked the learned Government Pleader to enquire with the Sub Collector as to the time possible for him to hear the parties. It is submitted by the learned Government Pleader, on instructions, that no new incumbent has taken charge in the post of Sub Collector, Fort Kochi and the District Collector will hear the parties at 11.30 a.m on 12.12.2022. Accordingly, there will be a direction to the District Collector to pass fresh orders after hearing the Association, the KSHB, the Panchayat and respondents 6 to 9. In the meantime, the Deputy Collector (Disaster Management) shall conduct a site inspection at 11 a.m. on 03.12.2022 and submit a report before the District Collector. The inspection shall be conducted in the presence of the parties to the writ petitions. The parties may hand over to the Deputy Collector (Disaster Management) the documents which they rely on during inspection. The

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respective counsel for the parties waives notice for site inspection and hearing. Whatever materials the parties have to rely on before the District Collector at the time of hearing shall be furnished to the office of the District Collector on or before 09.12.2022. The Deputy Collector (Disaster Management) shall furnish copy of the report of site inspection to the parties on or before 09.12.2022. In the light of the directions as above, Exts. P8 and P13 are also set aside. Fresh orders shall be passed by the District Collector within a period of five days from the date of hearing. All other contentions of the parties raised in the writ petitions are left open.

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The writ petitions are disposed of.

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Sd/-

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MURALI PURUSHOTHAMAN JUDGE

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A PPENDIX OF WP(C) 27092/2022

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PETITIONERS’ EXHIBITS

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Exhibit P1A TRUE PHOTOCOPY OF THE WRIT PETITION
(WITHOUT EXHIBITS), IN WP[C].NO.28021 OF
2020

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Exhibit P2A TRUE PHOTOCOPY OF THE ORDER ISSUED BY
THE SECRETARY OF THE 8TH RESPONDENT

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Exhibit P3A TRUE PHOTOCOPY OF THE LETTER DATED
29.07.2020 ISSUED BY THE 3RD RESPONDENT TO
THE 7TH RESPONDENT

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Exhibit P4A TRUE PHOTOCOPY OF THE JUDGMENT IN
WP[C].NO.28021 OF 2020 DATED 23.06.2021
Exhibit P5A TRUE PHOTOCOPY OF THE ORDER NO.D-
2353/2020 DATED 14.03.2022 ISSUED BY THE
2ND RESPONDENT

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Exhibit P6A TRUE PHOTOCOPY AGREEMENT NO.09/05-06
DATED 03.01.2006
Exhibit P7A TRUE PHOTOCOPY OF THE ORDER DATED
29.04.2022 ISSUED BY THE 2ND PETITIONER
Exhibit P8ATRUEPHOTOCOPYOFTHEORDER
NO.4754/21/D3 DATED 17.03.2022 ISSUED BY
THE 1ST RESPONDENT.

PETITIONER’S EXHIBITS

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`Exhibit P1`	`A TRUE COPY OF THE PRESENT HOUSING LAY OUT` `OF THE KAIRALI NAGAR, CHOONDI, UNDER THE` `KERALA STATE HOUSING BOARD DATED NIL.`
`Exhibit P2`	`A TRUE COPY OF THE WRIT PETITION FILED AS` `W P © NO 28021 OF 20 DATED 14.12.20 BEFORE` `THIS HON'BLE COURT.`
`Exhibit P3`	`A TRUE COPY OF THE LETTER ISSUED BY THE` `2ND RESPONDENT PANCHAYATH DATED 5.8.20.`
`Exhibit P4`	`A TRUE COPY OF THE LETTER ISSUED BY THE` `3RD RESPONDENT KERALA STATE HOUSING BOARD` `DATED 29.07.20.`
`Exhibit P5`	`A TRUE COPY OF THE JUDGMENT DELIVERED IN` `WP C NO.28021 OF 2020 DATED 23.06.2021.`
`Exhibit P6`	`A TRUE COPY OF THE PLAINT IN O S NO. 218` `OF 2020 FILED BEFORE THE MUNSIFF COURT,` `ALUVA DATED 9.6.2020`
`Exhibit P7`	`A TRUE COPY OF THE WRITTEN STATEMENT FILED` `BY THE PETITIONER IN OS NO.218 OF 2020` `DATED 27.05.2022 BEFORE THE MUNSIFF COURT,` `ALUVA.`
`Exhibit P8`	`A TRUE COPY OF THE LETTER ISSUED BY THE` `DISTRICT COLLECTOR, ERNAKULAM DATED` `17.03.2022.`
`Exhibit P9`	`A TRUE COPY OF THE OBJECTION RAISED BY THE` `PETITIONER ASSOCIATION DATED 11.04.2022.`
`Exhibit P10`	`A TRUE COPY OF THE OBJECTION RAISED BY THE` `PETITIONER ASSOCIATION DATED 09.05.2022.`
`Exhibit P11`	`A TRUE COPY OF THE OBJECTION RAISED BY THE` `PETITIONER ASSOCIATION DATED 16.05.2022.`
`Exhibit P12`	`A TRUE COPY OF THE ORDER PASSED BY THE 5TH` `RESPONDENT DATED 14.03.2022.`
`Exhibit P13`	`A TRUE COPY OF THE LETTER ISSUED BY THE` `KERALA STATE HOUSING BOARD, ERNAKULAM` `DIVISION DATED 29.04.2022.`
`Exhibit P14`	`A TRUE COPY OF THE COMMUNICATION OF ONE K` `V PRASANNAN BEFORE THE 5TH RESPONDENT` `DATED 22.7.2021.`
`Exhibit P15`	`A TRUE COPY OF THE LETTER BY P T MATHAI`

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BEFORE THE 5TH RESPONDENT DATED 22.7.2021.
Exhibit P16A TRUE COPY OF THE TAX PAID RECEIPT ISSUED
BY THE EDATHALA GRAMA PANCHAYATH DATED
6.9.1990 SUBMITTED BEFORE THE 5TH
RESPONDENT.
Exhibit P17A TRUE COPY OF THE RESIDENTIAL CERTIFICATE
ISSUED BY THE EDATHALA GRAMA PANCHAYATH
DATED 21.11.1994.
Exhibit P18A TRUE COPY OF THE LETTER GIVEN BY JOSEPH
JOHN DATED 23.7.2021.

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RESPONDENTS’ EXHIBITS

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Exhibit R3(A)TRUE COPY OF THE AGREEMENT DATED
03/01/2006 SIGNED IN BETWEEN THE 3RD
RESPONDENT AND THE PETITIONER
Exhibit R6 ATRUE COPY OF THE PHOTOGRAPHS SHOWING THE
COLLAPSE OF THE COURTYARD AND BOUNDARY
WALL OF THE 7TH RESPONDENT.
Exhibit R6 BTHE TRUE COPY OF THE NOTICE ISSUED BY THE
VILLAGE OFFICER, ALUVA EAST UNDER THE
DIRECTION OF REVENUE DIVISIONAL OFFICER
ALUVA DATED 15/05/2021.
Exhibit R6 CTHE TRUE COPY OF THE LETTER ISSUED BY THE
PETITIONER ASSOCIATION DATED 27/05/2021.
Exhibit R6 DTHE TRUE COPY OF THE NOTIFICATION DATED
27/05/2000 PUBLISHED IN KERALA GAZETTE.
Exhibit R6 ETHE TRUE COPY OF THE AGREEMENT DATED
03/01/2016 EXECUTED IN BETWEEN THE 3RD
RESPONDENT AND THE PETITIONER.
Exhibit R6 FTHE TRUE COPY OF THE COMPLAINT PREFERRED
BY THE ANSWERING RESPONDENTS AND OTHERS ON
29/01/2020.
Exhibit R6 GTHE TRUE COPY OF THE REPORT SUBMITTED BY
THE VILLAGE OFFICER ALUVA EAST DATED
05/02/2020.
Exhibit R6 HTHE TRUE COPY OF THE PETITION SUBMITTED
BEFORETHE3RDRESPONDENTDATED
02/03/2020.
Exhibit R6 ITHE TRUE COPY OF THE REPORT OF SUBMITTED
BY THE ASSISTANT ENGINEER LSGD SECTION,
EDATHALA DATED 01/02/2020 TO THE ASSISTANT
ENGINEER, LSGD JUNCTION EDATHALA.

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Exhibit R6 JTRUE COPY OF THE APPLICATION SUBMITTED BY
THE ANSWERING RESPONDENTS UNDER THE RIGHT
TO INFORMATION ACT ON 02/03/2020.

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Exhibit R6 KTHE TRUE COPY OF THE REPLY DATED
23/06/2020.
Exhibit R6 LTHE TRUE COPY OF THE LETTER DATED
29/07/2020 ISSUED BY THE 3RD RESPONDENT.
Exhibit R6 MTHE TRUE COPY OF THE LETTER DATED
05/08/2020 ISSUED BY THE SECRETARY
EDATHALA GRAMA PANCHAYATH.
Exhibit R6 NTHE TRUE COPY OF THE REPORT SUBMITTED BY
THE TAHASILDAR ALUVA DATED 10/08/2020.

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spc/

M/S the Kairali Nagar Resident'S Association, v. the State of Kerala

Case brief

What is this about?

What did the court decide?

M/S the Kairali Nagar Resident'S Association, v. the State of Kerala

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

Coram

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