Dismissed

Samuel Varghese v. the State of Kerala

Kerala HC25 Feb 2022WP(C)/7823/2021

Case brief

AI extract

What is this about?

An aggrieved government contractor filed writ petitions seeking quashing of a contract termination order and payment of disputed bills along with other reliefs. The High Court noted that a civil suit was already pending before the Civil Court on the same facts. It dismissed the writ petitions by granting liberty to the petitioner to raise all contentions before the Civil Court, holding it prematur

What did the court decide?

Writ petitions closed; liberty granted to the petitioner to raise all contentions in the pending Civil Suit No.271 of 2020.

Samuel Varghese Vs the State of Kerala — Contract and Commercial Disputes | 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 P.V.KUNHIKRISHNAN
FRIDAY, THE 25TH DAY OF FEBRUARY 2022 / 6TH PHALGUNA, 1943

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WP(C) NO. 7823 OF 2021

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PETITIONER/S:

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SAMUEL VARGHESE, AGED 66 YEARS
GOVERNMENT CONTRACTOR,KANDATHIPARAMBIL HOUSE,
MUTTOM.P.O, HARIPPAD, ALAPPUZHA DISTRICT-690511.

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BY ADVS.
K.BABU THOMAS
SMT.MARYKUTTY BABU

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RESPONDENT/S:

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1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, WATER RESOURCES DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 THE CHIEF ENGINEER,PROJECT-II, PUBLIC OFFICE BUILDINGS,VIKAS BHAVAN.P.O, THIRUVANANTHAPURAM-695033.

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3 THE SUPERINTENDENTING ENGINEER, PROJECT CIRCLE,MUVATTUPUZHA, ERNAKULAM DISTRICT-686661.

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4 THE EXECUTIVE ENGINEER, M.V.I.P.DIVISION,NO,4,PIRAVAM, ERNAKULAM DISTRICT-686664.

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BY ADV GOVERNMENT PLEADER

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OTHER PRESENT:

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SRI.K.V.MANOJ KUMAR, SR.GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 25.02.2022, ALONG WITH WP(C).13981/2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C). Nos. 13981 of 2020 & 7823 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 P.V.KUNHIKRISHNAN

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FRIDAY, THE 25^TH DAY OF FEBRUARY 2022 / 6TH PHALGUNA,

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1943

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WP(C) NO. 13981 OF 2020

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PETITIONER/S:

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SAMUEL VARGHESE, AGED 65 YEARS
GOVERNMENT CONTRACTOR, KANDATHILPARAMBIL HOUSE,
MUTTOM P. O., HARIPPAD, ALAPPUZHA DISTRICT -
690 511.

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BY ADVS.
K.BABU THOMAS
SMT.MARYKUTTY BABU

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RESPONDENT/S:

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

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2 THE CHIEF ENGINEER PROJECTS - II, PUBLIC OFFICE BUILDINGS, VIKAS BHAVAN P. O., THIRUVANANTHAPURAM - 695 033.

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3 THE SUPERINTENDING ENGINEER PROJECT CIRCLE, MUVATTUPUZHA, ERNAKULAM DISTRICT - 686 661.

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SRI. K.V. MANOJ KUMAR, SR. GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 25.02.2022, ALONG WITH WP(C).7823/2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C). Nos. 13981 of 2020 & 7823 of 2021

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P.V.KUNHIKRISHNAN, J.

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W.P. (C) Nos. 13981 of 2020 & 7823 of 2021

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Dated this the 25^th day of February, 2022

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JUDGMENT

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These two writ petitions are filed by the contractor of Water Resources Department. The prayers in these writ petitions are as follows:

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in WP(C) No.13981 of 2020:

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“i) issue a writ of certiorari, or any other appropriate writ, or order direction to the respondents calling for the records of the case leading up to Ext P24 and quash Exts P7, P11, P14, P16, P20 and P24.

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ii) issue a writ of mandamus, or any other appropriate writ, or order direction to the respondents requiring to forthwith effect payment of Ext.P22 bill dated 5-102019 for Rs.63,13,501/- due to the petitioner for the value of works carried out, or within a time stipulated by this Hon. Court.

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iii) declare that the termination of the contract by Ext. P20 denying extension of intended completion period sought up to 31-3-2020 unlawfully refusing payment at the market rates for the quantities beyond the ceiling

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W.P.(C). Nos. 13981 of 2020 & 7823 of 2021

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limit of 125% and works delayed beyond 30-6-2016, due to non-removal of 10500 cum of blasted materials stocked in 850m of the alignment notified on 1-3-2020 is illegal, unauthorized, without jurisdiction, invalid and null and void and no consequence intended by the same, including risk and costs would ensue to him.

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iv) issue a writ of mandamus, or any other appropriate writ, or order direction to the 1^st respondent requiring to consider and pass orders on Ext.P21 representation of the petitioner, to revoke the illegal order of termination of contract in Ext.P20, within a time stipulated, on affording an opportunity of being heard, to facilitate completion of the balance work by him at the current market rates and at the rates notified for the quantities beyond the ceiling limit in accordance with conditions 20(a), 23.3(iv), 23.3(v) and 23.3(vi) in Ext.P1 and clauses 59 and 63 of MDSS; and

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v) grant such other relief this Hon. Court may deem, proper, just, equitable and necessary in the peculiar facts and circumstances of the case including the costs incurred by the petitioner in these proceedings.” (Sic)

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in WP(C) No.7823 of 2021:

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“i) issue a writ of mandamus, or any other appropriate writ, or order, or direction to the respondents requiring to forthwith effect payment Exhibit P11 bill dated 05-102019 for which funds were allotted and letter of credit was issued on 22-1-2021 by Exhibit P15 the

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W.P.(C). Nos. 13981 of 2020 & 7823 of 2021

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Government, in view of Exhibit P14 order passed by this Hon. Court, restraining recovery of further amounts from the petitioner pursuant to the illegal termination of the contract.

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ii) issue a writ of mandamus, or any other appropriate writ, or order, or direction to the respondents requiring to forthwith effect payment of Exhibit P11 directed to be paid by Exhibit P15 Government order dated 22-1-2021 towards admitted value of works carried out due as on 5-10-2019 with interest for late payment.

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iii) declare that the delay caused in payment of Exhibit P11 bill dated 5-10-2019, notwithstanding allotment of funds required for disbursement of the amount by Exhibit P15 Government order dated 22-1-2021 and in view of Exhibit P14 order passed by this Hon. Court, restraining recovery of further amounts from the petitioner pursuant to the illegal termination of the contract on 10-2-2020, is illegal, unauthorized, without jurisdiction, unjustified and indefensible.

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iv) issue a writ of prohibition, or any other appropriate writ, or order, or direction to the respondents, interdicting them from in any way withholding any portion of Rs.62,53,518/- allotted in Exhibit P15 for payment of Exhibit P11 bill dated 5-10-2019, with the admitted unpaid value of works carried out by the petitioner.

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v) issue writ of mandamus, or any other appropriate writ,

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W.P.(C). Nos. 13981 of 2020 & 7823 of 2021

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or order, or direction to the respondents, to forthwith transfer credit Rs.62,53,518/- to the overdraft account of the petitioner maintained with the State Bank of India, Kandallur Branch, which financed the works, as permitted by the respondents, to minimize the losses on account of interest on the unpaid outstanding loan amounts.

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vi) grant such other relief this Hon. Court may deem proper, just, equitable and necessary in the peculiar facts and circumstances of the case including the costs incurred by the petitioner in these proceedings.” (Sic)

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According to the petitioner, as per Ext.P11 an amount of Rs.62,53,518/- is due and Ext.P15 is the letter of credit issued by the Finance Department. The counsel for the petitioner submitted that in the light of Ext.P15 there may not be any issue to the respondents to release the admitted amount.

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On the other hand, the learned Government Pleader submitted that Ext.P15 is only a letter of credit issued by the Finance Department and it will be only credited to the department concerned. That is not an admission about the

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W.P.(C). Nos. 13981 of 2020 & 7823 of 2021

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amount due. If there is any objection from the department concerned about the amount due to a contractor, the amount will not be disbursed to the contractor. According to the Government there is a liability of Rs.77,90,000/-. The counsel for the petitioner disputed the submissions made by the learned Government Pleader. There is dispute about the liability and the amount due to the petitioner.

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In such circumstances, this Court may not be able to decide this matter invoking the powers under Article 226 of the Constitution of India. Admittedly, a suit is filed by the petitioner before the Civil Court as Commercial Suit No.271 of 2020. The Government Pleader submitted that the points raised in these writ petitions are also raised in the suit.

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The petitioner is free to raise the contentions in these

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writ petitions in the suit also, so that there will be a quietus to the entire issue.

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W.P.(C). Nos. 13981 of 2020 & 7823 of 2021

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Therefore, these writ petitions are closed granting liberty to the petitioner to raise all the contentions in these writ

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petitions before the Civil Court.

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sd/-

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P.V.KUNHIKRISHNAN

JUDGE

das

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W.P.(C). Nos. 13981 of 2020 & 7823 of 2021

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APPENDIX OF WP(C) 13981/2020

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PETITIONER EXHIBITS

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`EXHIBIT P1`	`TRUE COPY OF THE RELEVANT PORTION OF` `AGREEMENT NO.19/SEPCM/2004-05 AT (+)` `22.95%.`
`EXHIBIT P2`	`TRUE COPY OF THE INTERIM ORDER IN W.P.` `(C) NO.6545 OF 2014.`
`EXHIBIT P3`	`TRUE COPY OF G.O.(RT) NO.1076/2014/WRD` `ALLOWING 2012 PWD SOR.`
`EXHIBIT P4`	`TRUE COPY OF THE LETTER OF 2ND` `RESPONDENT TO THE 3RD RESPONDENT WITH` `REVISED ESTIMATE FOR RS.` `18,68,32,825/-`
`EXHIBIT P5`	`TRUE COPY OF WILLINGNESS OF THE` `PETITIONER TO CARRY OUT WORKS AT 2012` `PWD SOR.`
`EXHIBIT P6`	`TRUE COPY OF BANK GUARANTEE FOR RS.` `1,90,00,000/-.`
`EXHIBIT P7`	`TRUE COPY OF RELEVANT PORTION OF` `UNAUTHORIZED AND ILLEGAL SUPPLEMENTAL` `AGREEMENT.`
`EXHIBIT P8`	`TRUE COPY OF THE CERTIFICATE FOR` `PAYMENT OF RS. 3,58,00,809/- DUE TO` `THE PETITIONER.`
`EXHIBIT P9`	`TRUE COPY OF REPRESENTATION TO THE 1ST` `RESPONDENT.`
`EXHIBIT P10`	`TRUE COPY OF JUDGMENT IN W.P.(C)` `NO.24144 OF 2017.`
`EXHIBIT P11`	`TRUE COPY OF G.O.(RT) NO.981/2017/WRD.`
`EXHIBIT P12`	`TRUE COPY OF THE REPRESENTATION.`
`EXHIBIT P13`	`TRUE COPY OF JUDGMENT IN W.P.(C)` `NO.9938 OF 2018.`

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W.P.(C). Nos. 13981 of 2020 & 7823 of 2021

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`EXHIBIT P14`	`TRUE COPY` `SUPPLEMENT`	`OF` `AL`	`ILLEGAL AND UNAUTHORIZED` `AGREEMENT.`
`EXHIBIT P15`	`TRUE COPY` `PETITIONER`	`OF` `.`	`PROTEST LETTER OF THE`
`EXHIBIT P16`	`TRUE COPY`	`OF`	`G.O.(RT) NO.541/2019/WRD.`
`EXHIBIT P17`	`TRUE COPY` `NOTIFYING`	`OF` `MA`	`LETTER OF THE PETITIONER` `RKET RATES PAYABLE.`
`EXHIBIT P18`	`TRUE COPY` `RESPONDENT` `RATES.`	`OF` `D`	`REPLY OF THE 3RD` `ECLINING PAYMENT AT MARKET`
`EXHIBIT P19`	`TRUE COPY` `PETITIONER`	`OF` `.`	`NOTICE SENT BY THE`
`EXHIBIT P20`	`TRUE COPY` `ORDER.`	`OF`	`ILLEGAL TERMINATION`
`EXHIBIT P21`	`TRUE COPY` `RESPONDENT`	`OF` `.`	`REPRESENTATION TO THE 1ST`
`EXHIBIT P22`	`TRUE COPY`	`OF`	`BILL FOR RS.63,13,501/-`
`EXHIBIT P23`	`TRUE COPY` `NO.13178/H`	`OF` `3/`	`CIRCULAR` `2002/PWD.`
`EXHIBIT P24`	`TRUE COPY` `DEMANDING`	`OF` `PA`	`LETTER OF 3RD RESPONDENT` `YMENT OF RS.77,90,000/-`
`Exhibit P25`	`TRUE COPY` `PROTEST LE` `THE RESPON`	`OF` `TT` `DE`	`REPRESENTATION - CUM -` `ER OF THE PETITIONER TO` `NTS.`

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W.P.(C). Nos. 13981 of 2020 & 7823 of 2021

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APPENDIX OF WP(C) 7823/2021

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PETITIONER EXHIBITS

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`Exhibit P1`	`TRUE COPY OF THE RELEVANT PORTION OF` `AGREEMENT NO.19/SEPCM/2004-2005`
`Exhibit P2`	`TRUE COPY OF THE INTERIM ORDER IN WPC` `NO.6545 OF 2014`
`Exhibit P3`	`TRUE COPY OF GO (RT) NO.1076/2014/WRD` `ALLOWING 2012 PWD SOR`
`Exhibit P4`	`TRUE COPY OF WILLINGNESS OF THE` `PETITIONER TO CARRY OUT WORKS AT 2012` `PWD SOR`
`Exhibit P5`	`TRUE COPY OF RELEVANT PORTION OF` `UNAUTHORIZED AND ILLEGAL SUPPLEMENTAL` `AGREEMENT`
`Exhibit P6`	`TRUE COPY OF JUDGMENT IN WPC NO.24144` `OF 2017`
`Exhibit P7`	`TRUE COPY OF G.O(RT) NO.981/2017/WRD`
`Exhibit P8`	`TRUE COPY OF JUDGMENT IN WPC NO.9938` `OF 2018`
`Exhibit P9`	`TRUE COPY OF PROTEST LETTER OF THE` `PETITIONER`
`Exhibit P10`	`TRUE COPY RELEVANT PORTION OF` `SUPPLEMENTAL AGREEMENT DATED 3.12.2018` `GOT EXECUTED ON 6.12.2018`
`Exhibit P11`	`TRUE COPY OF C.C.XVIII AND PART BILL` `FOR RS 63,13,501/-`
`Exhibit P12`	`TRUE COPY OF ILLEGAL TERMINATION`
`Exhibit P13`	`TRUE COPY OF LETTER DEMANDING PAYMENT` `OF RS 77,90,000/-`
`Exhibit P14`	`TRUE COPY OF INTERIM ORDER IN WPC` `NO.13981 OF 2020`

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W.P.(C). Nos. 13981 of 2020 & 7823 of 2021

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Exhibit P15TRUE COPY OF GO (RT) NO.578/21/FIN FOR
ALLOTMENT OF RS. 62,53,518/-

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Exhibit P16TRUE COPY OF REPRESENTATION OF THE
PETITIONER TO THE RESPONDENTS

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Exhibit P17TRUE COPY OF REPRESENTATION -CUM -
PROTEST LETTER OF THE PETITIONER TO
THE RESPONDENTS

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RESPONDENT EXHIBITS

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ANNEXURE R4(A)TRUE COPY OF THE RELEVANT PAGE OF
AGREEMENT

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ANNEXURE R4(B)TRUE COPY OF THE LETTER DATED
09.07.2019 OF THE EXECUTIVE ENGINEER

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RESPONDENT EXHIBITS

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ANNEXURE R4(C)TRUE COPIES OF THE NOTICES DATED
30.12.2019, 31.12.2019,13.01.2020 AND
14.01.2020

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ANNEXURE R4(D)TRUE COPY OF THE RELEVANT PAGE OF THE
PWD MANUAL
ANNEXURE R4(E)TRUE COPY OF THE G.O(P) NO.46/74/FIN
DATED 27.02.1974
ANNEXURE R4(F)TRUE COPY OF THE REQUEST OF THE
PETITIONER DATED 21.10.2019

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ANNEXURE R4(G)TRUE COPY OF THE PLAINT CS NO.271/2020

Samuel Varghese v. the State of Kerala

Case brief

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Samuel Varghese v. the State of Kerala

Case brief

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