Dismissed

Mahin K v. Kerala Water Authority

Kerala HC19 Oct 2023WA/1747/2023

Case brief

AI extract

What is this about?

This judgment dismisses two writ appeals challenging the Kerala Water Authority's acceptance of tenders where bidders submitted solvency certificates. The Court held that alternative certificates issued by scheduled/nationalized banks sufficiently satisfied the tender format requirements.

What did the court decide?

The appeals were dismissed; the impugned judgments rejecting the tender complaints were affirmed.

Mahin K Vs Kerala Water Authority — Public Procurement and Tenders | Kerala HC (2023)

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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. A.J.DESAI

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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THURSDAY, THE 19TH DAY OF OCTOBER 2023 / 27TH ASWINA, 1945

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WA NO. 1744 OF 2023

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AGAINST THE JUDGMENT IN WP(C) 9988/2023 OF HIGH COURT OF

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KERALA

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APPELLANT/PETITIONER:

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NAMSHAD A

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AGED 35 YEARS, S/O. AMU,
CONTRACTOR, JASEELA MANZIL,
STAR NAGAR, BEVINJE, THEKKIL FERRY P.O.,
KASARAGOD DISTRICT., PIN – 671 541

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BY ADV BABU JOSEPH KURUVATHAZHA

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RESPONDENTS/RESPONDENTS:

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1KERALA WATER AUTHORITY
JALA BHAVAN, NANDAVANAM, VELLAYAMBALAM,
THIRUVANANTHAPURAM, REPRESENTED BY ITS
MANAGING DIRECTOR, PIN – 695 033

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2CHIEF ENGINEER,
KERALA WATER AUTHORITY, JALA BHAVAN,
NANDAVANAM, VELLAYAMBALAM,
THIRUVANANTHAPURAM., PIN – 695 033

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3SUPERINTENDING ENGINEER
KERALA WATER AUTHORITY, PH CIRCLE,
THIRUVALLA, PATHANAMTHITTA., PIN – 689 101

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4 T. THANKAPPAN CONTRACTOR, K.S. BHAVAN, KANNARAVILA, NELLIMOODU P.O.,

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THIRUVANANTHAPURAM DISTRICT., PIN – 695 524

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W.A.Nos.1744 & 1747 of 2023

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5AJII A.
CONTRACTOR, PUTHUVAL PUTHEN VEEDU,
UCHAKKADA, PAYATTUVILA P.O.,
THIRUVANANTHAPURAM DISTRICT., PIN – 695 501

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BY ADV. P.M.JOHHNY FOR KWA
ADV. P.M.UNNI NAMBOODIRI FOR R4,5

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.10.2023,
ALONG WITH WA.1747/2023, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:

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W.A.Nos.1744 & 1747 of 2023

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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. A.J.DESAI

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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THURSDAY, THE 19TH DAY OF OCTOBER 2023 / 27TH ASWINA, 1945

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WA NO. 1747OF 2023

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AGAINST THE JUDGMENT IN WP(C) 3396/2023 OF HIGH COURT OF

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KERALA

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APPELLANT/PETITIONER:

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MAHIN K
AGED 42 YEARS
S/O. AMU, CONTRACTOR, JASEELA MANZIL,
STAR NAGAR, BEVINJE, THEKKIL FERRY P.O.,
KASARAGOD DISTRICT., PIN – 671 541

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BY ADV BABU JOSEPH KURUVATHAZHA

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RESPONDENTS/RESPONDENTS:

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1KERALA WATER AUTHORITY
JALA BHAVAN, NANDAVANAM, VELLAYAMBALAM,
THIRUVANANTHAPURAM, REPRESENTED BY ITS
MANAGING DIRECTOR., PIN – 695 033

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2SUPERINTENDING ENGINEER
KERALA WATER AUTHORITY,
P.H. CIRCLE, MALAPARAMBA P.O.,
KOZHIKODE., PIN – 673 009

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3K. RAMESHAN,
CONTRACTOR, KEDHARAM, K.S.H.B. COLONY,
MALAPARAMBA, KOZHIKODE., PIN – 673 009

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W.A.Nos.1744 & 1747 of 2023

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4KANNAN K,
S/O KARUNAN, CONTRACTOR,
AMRUTHAM, CHIRAKKAL P.O.,
KANNUR-670 011.

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BY ADVS.
ADV.GEORGIE JOHNNY FOR KWA;
ADV. K.S.ANIL FOR R4
ADV.SUDHIR R
ADV.MUSTHAHAZIN K. MOHAMMED(K/001739/2022)
ADV.JOSNA.C.F(K/1187/2023)

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.10.2023,
ALONG WITH WA.1744/2023, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:

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W.A.Nos.1744 & 1747 of 2023

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JUDGMENT

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Dated this the 19^th day of October 2023

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A.J. Desai, C.J.

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The present appeals arise from the judgments dated 21.09.2023 in W.P.(C) Nos.9988 and 3396 of 2023, by which the writ petitions filed by the present appellant, challenging the action on the part of the Kerala Water Authority in accepting the bid of the private respondents in both cases, contrary to the terms and conditions of the contract, came to be rejected.

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Short facts that arise from the records are as under:

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The respondent Kerala Water Authority by e-tender No.WRD/KWA-CE(SR)/TR/4921/2022 5.11/1 and re e-tender No.SE/PHC/KKD/84/2022-23 invited bids from contractors for carrying out different civil works. In response to the tender notices, the appellant as well as the private respondents submitted their applications. The details about the documents submitted by the participating contractors were available on the website of the Kerala Water Authority.

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The appellant/petitioner having come to know that the

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W.A.Nos.1744 & 1747 of 2023

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private respondents in the writ petitions, who became successful in the bids conducted based on the notices, had not submitted one document i.e., the solvency certificate in the prescribed format, made representations to the Kerala Water Authority seeking rejection of their bids. The Authority having confirmed the bids in favour of the private respondents, the appellant challenged the action of the Kerala Water Authority by filing the writ petitions. The respondents appeared and filed counter affidavits opposing the relief sought. The learned Single Judge, after considering the contentions, dismissed the writ petitions. Hence, these appeals.

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The learned Counsel for the appellant would submit that the learned Single Judge has committed an error in dismissing W.P.(C) No.3396 of 2023, without scrutinising the solvency certificate produced by the 4^th respondent therein i.e., Kannan K., S/o. Karunan. By taking us through the solvency certificate dated 18.06.2022 issued by the Kerala Gramin Bank, he would submit that it is not in Format Q.4A, which forms part of the tender documents and, therefore, the Authority should have rejected the tender submitted by the 4^th respondent. He

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W.A.Nos.1744 & 1747 of 2023

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drew attention to certain other decisions of the Kerala Water Authority to point out that in similar cases, the Authority had rejected tenders where the tender forms had not been submitted in the prescribed format.

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As far as W.P.(C)No.9988 of 2023 is concerned, by taking us through the solvency certificate dated 20.10.2022 issued by the Union Bank of India in favour of the private respondents, he would submit that in this case also, the solvency certificate produced was not in Format Q.4A. He, therefore, would submit that the appeals be allowed and the judgments in both writ petitions be quashed and set aside and

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the tender granted in favour of the private respondents be rejected.

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The learned Advocates appearing for the private respondents in W.A.No.1747 of 2023 would submit that a counter affidavit was filed before the learned Single Judge wherein it was categorically stated that respondents 3 and 4 had participated in the tender as a joint venture and the 3^rd respondent had furnished another solvency certificate [Ext.R3(c)], which was accepted by the Kerala Water Authority.

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W.A.Nos.1744 & 1747 of 2023

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By taking us through the solvency certificate dated 19.01.2023, he would submit that a proper solvency certificate having been produced, the learned Single judge had committed no error and hence, the appeal be dismissed. It is also the case of respondents 3 and 4 that the work awarded to them has commenced pursuant to the acceptance of their tender.

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As far as W.A.No.1744 of 2023 is concerned, the

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learned Advocate appearing for respondents 4 and 5 would submit that the requirement to be fulfilled as per Format Q.4A stood satisfied by the solvency certificate produced and, hence, there is no need to interfere with the impugned judgment.

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We heard learned Advocates appearing for the respective parties.

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It appears from the judgment that the learned Advocate for the appellant had raised two issues before the learned Single Judge; one is that the solvency certificate is not in the proper format and the second about the certificate not having been issued by a nationalised bank. However, before this Court, the learned Advocate stated that he is not pressing the challenge on the ground that the solvency certificate was

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W.A.Nos.1744 & 1747 of 2023

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not issued by the nationalised bank, as there is no clause in the notice inviting tender which requires the production of issuance of certificates by nationalised banks. Moreover, there is no doubt that among the banks which had issued solvency certificates to the private respondents, Kerala Gramin Bank and Federal Bank are scheduled banks and the Union Bank of India is a nationalised bank.

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In view of the above submission, this Court is required to deal with the second issue, viz, as to whether solvency certificates produced are in proper format or not.

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The above issue arises since one of the forms, which

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is required to be submitted along with the tender, is a certificate in Format Q.4A and the same reads as under:

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“Re-e tender No. SE/PHC/KKD/84/2022-23

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KERALA WATER AUTHORITY

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FORMAT Q.4A

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FORM OF CERTIFICATE

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Based on the collateral security produced on movable and immovable property of following descriptions appended to this certificate, I (name) ……………………………………………… ………………

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…………………………… (designation) ………………………………………… of Bank ……………………………………………. (place) ………………………………………….. hereby certify in

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W.A.Nos.1744 & 1747 of 2023

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my official capacity that Sri. /Smt. (name and address) …………………. …………………………… ………… ……… ……………………………………………………… registered as …………………………………………………………… class contractor of Kerala Water Authority as per the certificate of registration produced by him before me is solvent for an amount of Rs. ……………………………………………….. rupees …………… ……………………. (in words) as on today. He is enjoying an OD facility up to a maximum of Rs. ……………………………. of which he has availed OD facility of Rs. ……………………………………………….. as on today. Acc.

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(Sd/-) (Office seal) Name: Designation:

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Counter signed by the tenderer.

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Note: the list mentioned above shall be attested by the signatory of bank and countersigned by the tenderer.

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TENDERER SUPERINTENDING ENGINEER”

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As far as W.P.(C)No.3396 of 2023, the case of the

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respondent that it is a joint venture, has not been denied by the

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original petitioner by filing any rejoinder. The solvency certificate produced by one of the respondents therein reads as under:

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“ FEDERAL BANK

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Br: Kozhikode/Malaparamba

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KKDF/KKD/23

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Date: 19/01/2023

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W.A.Nos.1744 & 1747 of 2023

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SOLVENCY CERTIFICATE

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Based on the collateral security produced on moveable and immoveable property of following descriptions appended to this certificate, I, Anjana Udayakumar, Manager & Branch Head of The Federal Bank Limited, Branch Kozhikode/Malaparamba, here by certify in my official capacity that Mr. Rameshan Kottayil, Kedaram, KSHB Colony, Malaparamba, Kozhikode-673009 registered as A class Contractor of Kerala Water Authority as per certificate of registration produced by him before him is solvent for an amount of Rs.5,00,00,000/- (Rupees Five Crores) as on today.

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He is enjoying an OD facility up to a maximum of Rs.160,00,000/- (Rupees One Crore Sixty Lakhs Only).

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It is clarified that this information is furnished without any risk and responsibility on our part in any respect whatsoever more particularly either as guarantor or otherwise.

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This certificate is issued at the specific request of the customer for submission to The Superintending Engineer Kerala Water Authority for the purpose of applying tender.

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Regards,

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Anjana Udayakumar

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Manager & Branch Head”

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On a reading of the solvency certificate issued by the

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Federal Bank in favour of the 3^rd respondent, along with whom the 4^th respondent has undertaken the work as a joint venture,

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W.A.Nos.1744 & 1747 of 2023

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it cannot be said that the certificate is not in proper format. Therefore, we do not find any error having been committed either by the Authority or by the learned Single Judge, so as to interfere with the judgment impugned.

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As far as W.P.(C)No.9988 of 2023 is concerned, the

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solvency certificate dated 20.10.2022 reads as under:

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“ UNION BANK OF INDIA

Vattiyoorkavu Branch

Ref No: VTKU/10/22

Date: 20.10.2022

SOLVENCY CERTIFICATE

This is to state that to the best of our knowledge and information, Mr. Thankappan T (A/c. 644405010000113) residing at K.S Bhavan, Kannaravila, Nellimoodu PO is a customer of the bank is respectable and can be treated as good up to a sum of Rs.500.00 lacs (Rs. Five Hundred Lacs only). It is clarified that this information is furnished without any risk and responsibility on our part in any respect whatsoever more particularly as guarantor or otherwise.

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This certificate is issued at the specific request of the customer for producing the same to M/s Kerala Water Authority in connection with submission of E-Tender.

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Yours sincerely,

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Sd/Branch Manager”

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W.A.Nos.1744 & 1747 of 2023

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After analysing the solvency certificates and the format, we are of the considered opinion that the requirement which is sought to be fulfilled by producing the certificate in Format Q.4A is satisfied with the production of the abovereferred solvency certificate. Even the competent committee scrutinised the solvency certificate and accepted the same. Moreover, objection was raised by the present appellant, with regard to the documents submitted by the private respondents only at a belated stage, in spite of the documents being available on the website of the Kerala Water Authority. Hence,

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the impugned judgments warrant no interference.

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Accordingly, both the appeals are dismissed.

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Pending interlocutory applications, if any, shall stand

closed.

Sd/-

A.J. Desai

Chief Justice

Sd/-

V.G. Arun

Judge

vpv

W.A.Nos.1744 & 1747 of 2023

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APPENDIX OF WA 1747/2023

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PETITIONER ANNEXURES

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Annexure A1TRUE COPY OF THE INTERIM ORDER OF THIS
HON'BLE COURT DATED 1.2.2023 IN W.P.(C)
NO.3396/2023.

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W.A.Nos.1744 & 1747 of 2023

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APPENDIX OF WA 1744/2023

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PETITIONER ANNEXURES

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Annexure A1TRUE COPY OF THE INTERIM ORDER OF THIS
HON'BLE COURT DATED 25.4.2023 IN
W.P.(C) NO.9988/2023.
Annexure A2TRUE COPY OF THE JUDGMENT OF THIS
HON'BLE COURT DATED 21.9.2023 IN
W.P.(C) NO.3396/2023.

Mahin K v. Kerala Water Authority

Case brief

What is this about?

What did the court decide?

Mahin K v. Kerala Water Authority

Case brief

What is this about?

What did the court decide?

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