Disposed

Sreeja v. Union of India

Kerala HC13 Oct 2022WP(C)/4298/2022

Case brief

AI extract

What is this about?

This writ petition challenged the retention of acquired land compensation by the competent authority amidst rival claims of title between the petitioner and a temple deity. The High Court held that the authority must determine entitlement or refer the dispute to the civil court and cannot keep funds idle indefinitely.

What did the court decide?

Directed the competent authority to take a decision on rival claims under Section 3-H(3) or refer the matter to the principal civil court within one month.

Sreeja Vs Union of India — Land Acquisition | Kerala HC (2022)

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“C.R.”

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 13^TH DAY OF OCTOBER 2022/ 21ST ASWINA, 1944 W.P.(C) NO. 4298 OF 2022

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PETITIONER:

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SREEJA

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AGED 46 YEARS, D/O. THE LATE PARAMESWARAN NAMBISSAN, THIRUVANGATT, CHELEMBRA AMSOM DESOM, KONDOTTY TALUK, MALAPPURAM DISTRICT - 673631.

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BY ADVS. T.KRISHNANUNNI (SR.) VINOD RAVINDRANATH MEENA.A. K.C.KIRAN M.R.MINI M.DEVESH ASHWIN SATHYANATH ANISH ANTONY ANATHAZHATH THAREEQ ANVER K.

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RESPONDENTS:

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1 UNION OF INDIA REPRESENTED BY SECRETARY TO MINISTRY FOR ROAD TRANSPORT AND HIGHWAYS, TRANSPORT BHAVAN 1, PARLIAMENT STREET, NEW DELHI, PIN-110001.

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2 DEPUTY COLLECTOR, LAND ACQUISITION (NH), MALAPPURAM, COMPETENT AUTHORITY UNDER THE PROVISIONS OF NATIONAL HIGHWAYS ACT, MALAPPURAM, PIN-676505.

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3 NATIONAL HIGHWAY AUTHORITY OF INDIA, REPRESENTED BY PROJECT DIRECTOR, VII/511B, NEITHELI-MAVELIPURAM ROAD, MAVELIPURAM, KAKKANAD, ERNAKULAM DISTRICT, PIN-682030.

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W.P.(C) No.4298 of 2022

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4 RAMACHANDRAN,

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AGED 67 YEARS, S/O. BALAKRISHNAN, THIRUVANGATT, CHELEMBRA AMSOM DESOM, KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN-676631.

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5 CHANDRAN, AGED 69 YEARS, S/O.VELAYUDHAN, PATTAYIL KEERANGATT, CHELEMBRA AMSOM DESOM, KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN-676631.

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6 A.RINEESH, AGED 40 YEARS, S/O.KRISHNAN, AMBALY HOUSE, CHELEMBRA AMSOM DESOM, KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN-676631.

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7 THE EXECUTIVE OFFICER, THIRUVENGAT DEVASWOM (UNDER MALABAR DEVASWOM), CHELAMBRA P.O., IDIUMUZHIKKAL, MALAPPURAM DISTRICT, PIN – 673 634.*

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*ADDL.R7 IMPLEADED AS PER ORDER DATED 13.10.2022 IN I.A.NO.1 OF 2022.

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BY ADVS. R1 BY SHRI.JOSE ANTONY, CGC R2 BY SRI.S.RAJMOHAN, SR.GP R3 BY E.C.KURIAKOSE R3 LEJO JOSEPH GEORGE R4, R5 & R7 BY P.B.KRISHNAN R4, R5 & R7 P.B.SUBRAMANYAN R4, R5 & R7 SABU GEORGE R4, R5 & R7 MANU VYASAN PETER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 13.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.4298 of 2022

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JUDGMENT “C.R.”

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Ajithkumar, J.

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0.5348 Ares of land comprised in Sy.No.165/1 and 0.0003 Ares in Sy.No.165/8 of Chelembra Village were acquired by the Government for widening of National Highway 17 (new NH 66) as per notification No.SO.3746(E) dated 30.07.2018 issued under Section 3-D of the National Highways Act, 1956 ('the Act' for short). 0.0224 Ares of land comprised in Sy.No.165/1 was also acquired for the same purpose as per notification No.SO.1648/(E) dated 23.04.2019. The competent authority, the 2^nd respondent, passed Ext.P3 award on 02.09.2021. The amount of compensation quantified as per Ext.P3 is kept in the account of the competent authority holding that the same will be distributed to the person entitled after verifying the claims of the interested persons and in terms of the directions of the Munsiff's Court, Tirur. The petitioner claims that the acquired properties belong to herself and other members in her family. Stating that the competent authority did not disburse the compensation

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W.P.(C) No.4298 of 2022

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despite producing necessary records of her title, the petitioner filed this Writ Petition under Article 226 of the Constitution of India, seeking a writ of mandamus directing respondents 1 to 3 to disburse the share of compensation entitled by the petitioner.

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The Writ Petition was admitted to file on 09.02.2022. The learned Deputy Solicitor General of India, the learned Government Pleader and the learned Standing Counsel for the National Highway Authority of India took notice for respondents 1 to 3 respectively. Notice was directed to be served on respondents 4 to 6.

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Additional 7^th respondent was impleaded. Respondent Nos.4 and 5 and additional 7^th respondent entered appearance through their learned counsel.

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Respondents No. 4 and 5 filed a counter affidavit contending that the property comprised in Sy.No.165/1 belongs to the deity of Sree Thiruvengat Maha Shiva Kshetram as is evident from Ext.R4(a) and R4(b) settlement

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W.P.(C) No.4298 of 2022

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registers. The decree based on which the petitioner claims right and title to the said property is a collusive one and not binding the deity. The deity is not a party to the said decree. Necessary documents to establish the title of the deity to the property were submitted before the 2^nd respondent, but he did

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not accept the claim and release the compensation to the Devaswom. The Writ Petition was accordingly sought to be dismissed.

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Heard the learned counsel appearing for the petitioner, the learned DSG of India, the learned Senior Government Pleader, and the learned counsel appearing for respondents 4, 5 and 7.

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The learned counsel appearing for the petitioner would submit that in the light of Ext.P1 final decree, the 2^nd respondent should have found that the acquired property belonged to the petitioner and other members of her family. Besides Ext.P1, the land tax register and all other necessary documents were produced before the Competent Authority,

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W.P.(C) No.4298 of 2022

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but he failed to appreciate the said documents. When the title of the petitioner and her co-shares to the acquired property was already held in their favour by a competent civil court, the 2^nd respondent should not have postponed the decision on disbursement of the compensation amount, and therefore, the

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petitioner claims that there shall be direction to the 2^nd respondent to disburse the compensation amount.

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The learned counsel appearing for respondents 4, 5

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and 7 on the other hand would contend that the 2^nd respondent after considering the documents submitted before him by the respective claimants should have taken a decision as to whom the compensation has to be paid and if it was not possible on a summary consideration of the materials produced before him, the matter should have been referred to the principal civil court of original jurisdiction as provided in Section 3-H(4) of the Act. His contention is that the property belongs to the deity and the settlement registers showing that fact are the only possible document available to establish title.

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W.P.(C) No.4298 of 2022

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Therefore, the same should have been accepted by the 2^nd respondent to find entitlement of the Devaswom to get the compensation amount.

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The learned Standing Counsel for the NHAI and also the Senior Government Pleader would submit that in the light of the rival claims, the matter should have to be referred to the competent civil court.

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Going by the provisions in sub-section (1) of Section 3-C of the Act, if any landowner has an objection to the acquisition, he shall submit it within 21 days from the date of publication of the notification under Section 3-A of the Act. The competent authority has to publish its declaration of acquisition as provided under Section 3-D of the Act, once a decision on objections is taken. The competent authority is expected thereafter to quantify the compensation following the procedure provided in Section 3-G of the Act. Section 3- G(3) of the Act mandates that before proceeding to determine

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the amount of compensation, the competent authority shall

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W.P.(C) No.4298 of 2022

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give a public notice published in two local newspapers, one of which will be in a vernacular language inviting claims from all persons interested in the land to be acquired. Section 3-G(4) of the Act stipulates that such notice shall state the particulars of the land and shall require all persons interested in such

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land to appear in person or by an agent or by a legal practitioner before the competent authority, at a time and place, and to state the nature of their respective interest in such land.

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The procedure for payment of compensation is provided in Section 3-H of the Act. Section 3-H reads,-

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“3-H. Deposit and payment of amount.— (1) The amount determined under Section 3-G shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority before taking possession of the land.

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(2) As soon as may be after the amount has been deposited under sub-section (1), the competent authority shall on behalf of the Central Government pay the amount to the person or persons entitled thereto.

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W.P.(C) No.4298 of 2022

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(3) Where several persons claim to be interested in the amount deposited under sub-section (1), the competent authority shall determine the persons who in its opinion are entitled to receive the amount payable to each of them.

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(4) If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated.

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(5) Where the amount determined under section 3G by the arbitrator is in excess of the amount determined by the competent authority, the arbitrator may award interest at nine per cent. per annum on such excess amount from the date of taking possession under Section 3-D till the date of the actual deposit thereof.

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(6) Where the amount determined by the arbitrator is in excess of the amount determined by the competent authority, the excess amount together with interest, if any, awarded under sub-section (5) shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority and the provisions of sub-sections (2) to (4) shall apply to such deposit.”

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W.P.(C) No.4298 of 2022

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Rule 4 of the National Highways (Manner of depositing the amount by the Central Government; Making requisite funds available to the competent authority for acquisition of land) Rules, 2019, reads,-

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“4. Where the amount deposited earlier by the executing agency into the account of the competent authority has remained undisbursed, or where the authorisation limit for an account has been issued in favour of the competent authority for disbursement purposes but certain amounts remain undisbursed, due to disputes which are referable to the principal civil court of original jurisdiction for resolution in terms of sub-section (4) of section 3-H of the National Highways Act, 1956, the competent authority shall, while forwarding such references to the Court, cause such undisbursed amounts to be deposited with the principal Court of civil jurisdiction to whom any such disputes are referable, for payment to entitled persons as and when the said disputes are resolved, or the absentee title-holders submit their claims, as the case may be, such amounts deposited with the principal court of civil jurisdiction shall, for all purposes, be deemed as payment made to entitled persons under sub-section (2) of section 3-H of the Act.”

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W.P.(C) No.4298 of 2022

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If rival claims are received, the competent authority (CALA) should look into it as provided in sub-section (3) of Section 3-H and find out who is the person really entitled to get the compensation. If the question relates to the title and the competent authority is unable on the basis of the materials before it to decide the entitlement to get compensation, the only option for him is to refer the parties under sub-section (4) of Section 3-H of the Act to the Principal Civil Court of Original Jurisdiction after following the procedure for deposit as in Rule 4 in the National Highways (Manner of depositing the amount by the Central Government; Making requisite funds available to the competent authority for acquisition of land) Rules.

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It is therefore the obligation of the competent authority under Section 3-H of the National Highways Act to see that as soon as the amount of compensation has been deposited with the competent authority, to pay such compensation to the person or persons entitled thereto. Situations may arise where the competent authority would not be able to decide as to who is

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W.P.(C) No.4298 of 2022

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entitled to receive the compensation. That can be on account of (i) the failure on the part of the owner of the acquired land to stake his claim or, (ii) failure on the part of the owner to furnish necessary documents to find his entitlement or, (iii) more than one person stake claim for the compensation and such claims are conflicting, or (iv) on account of dispute between the several claimants as to the apportionment of the compensation amount or any part thereof, and so on and so forth. Often, we noticed that when such disputes crop up before the CALA, no decision as contemplated in the aforesaid provisions is taken. The amount of compensation is kept idle in the account of the CALA without taking the mandatory steps provided under Sections 3-H(3) and 3-H(4) of the National Highways Act. It is reminded that if the amount of compensation is kept idle as a deferred compensation, it may be possible for the claimant, who would be found entitled to receive compensation, to claim interest on the compensation and in such event, the officers concerned may be fastened with the liability to pay interest on the amount of compensation.

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W.P.(C) No.4298 of 2022

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The competent authority noticed in Ext.P3 that Sumathi Brahmani Amma and others claiming compensation had submitted documents in order to prove their title to the property. The petitioner claims that she is one of such claimants. The 7^th respondent-Executive Officer, Thiruvangat Devaswom also submitted a claim before the competent authority. They appraised the competent authority regarding pendency of a suit regarding title to the property in question. After considering the said rival claims the 2^nd respondent observed in Ext.P3 as follows:

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“11. This order shall not be treated as a document to establish the right and ownership of the land for claiming compensation and for any other purpose. The concerned person has to produce all the relevant documents to establish the right of ownership and possession over the property for claiming compensation and other benefits concerned. Upon verification of those documents, the name of the interested person and the extent of land acquired and eligible compensation amount may vary.”

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W.P.(C) No.4298 of 2022

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However, the competent authority did not immediately take any decision in the matter. Instead he further had observed in Ext.P3 as follows:

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“13. Whereas, many persons have submitted claims for compensation for the land under acquisition covered under this proceedings and civil dispute O.S 59 of 2016 is pending before the Honourable Munsiff Court, Tirur, the compensation in this case will be treated as deferred.”

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The competent authority holding so proceeded to take over the possession of the property observing that the compensation will be distributed to the persons concerned after verifying the claims of all the interested persons and directions of the Munsiff's Court, Tirur.

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We pointed out above as to what shall be the procedure to be followed by the competent authority when rival claims are received regarding compensation amount. The 2^nd respondent should not have kept the amount of compensation in the deferred account and defer the decision for such an indefinite period.

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W.P.(C) No.4298 of 2022

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In the circumstances, we deem it appropriate to direct the 2^nd respondent to take a decision in the matter under Section 3-H(3) of the National Highways Act within one month from the date of production of a certified copy of this judgment and if he is not in a position to take a decision on the rival claims regarding entitlement to receive compensation, he shall refer the matter to the principal civil court of original jurisdiction following the procedure in Section 3-H(4) of the National Highways Act read with Rule 4 of the National Highways (Manner of depositing the amount by the Central Government; Making requisite funds available to the competent authority for acquisition of land) Rules. The Writ Petition is disposed of accordingly.

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Sd/-

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ANIL K. NARENDRAN, JUDGE

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Sd/-

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P.G. AJITHKUMAR, JUDGE

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dkr

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W.P.(C) No.4298 of 2022

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APPENDIX OF WP(C) 4298/2022

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PETITIONER EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE FINAL DECREE PASSED IN O.S.NO.69/2009 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF TIRUR DATED 12.4.2019.

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EXHIBIT P2 TRUE COPY OF THE EXTRACT FROM THE BASIC TAX REGISTER OF CHELEMBRA VILLAGE.

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EXHIBIT P3 TRUE COPY OF THE ORDER DATED 2.9.2021 ISSUED BY THE DEPUTY COLLECTOR, LAND ACQUISITION (NATIONAL HIGHWAY), MALAPPURAM WHO IS THE COMPETENT AUTHORITY).

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EXHIBIT P4 TRUE COPY OF THE PLAINT IN O.S. 59/2016 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF TIRUR DATED 18.8.2016.

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RESPONDENT EXHIBITS

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EXHIBIT R4(A) TRUE COPY OF THE SETTLEMENT REGISTER DATED 24.02.1905. EXHIBIT R4(B) TRUE COPY OF THE SETTLEMENT REGISTER DATED 23.10.1935. EXHIBIT R4(C) TRUE COPY OF THE JUDGMENT DATED 18.05.2016 IN W.P.(C) NO.32140 OF 2013 ON THE FILE OF THE HIGH COURT.

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EXHIBIT R4(D) TRUE COPY OF THE JUDGMENT DATED 26.06.2020 IN W.P.(C) NO.31888 OF 2018 ON THE FILE OF THE HIGH COURT.

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W.P.(C) No.4298 of 2022

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EXHIBIT R4(E)

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TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT DATED 29.11.2019 IN O.S.NO.59 OF 2016 ON THE FILE OF THE SUB COURT, TIRUR.

Sreeja v. Union of India

Case brief

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Sreeja v. Union of India

Case brief

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