Partly allowed

Veerankutty v. State of Kerala

Kerala HC16 Jan 2023WP(C)/11675/2021

Case brief

AI extract

What is this about?

The Court disposed of two writ petitions concerning a Nagathara and Banyan tree on a public road, alleged to be an encroachment by the petitioner but claimed by the Devaswom Board as the sacred Moolasthanam of a temple. The Court set aside notices issued for removal, holding that procedural lapses occurred and directing the Revenue Divisional Officer to decide the dispute.

What did the court decide?

Exh. P3, P4, P5, and P7 in W.P.(C) No.25576 of 2021 set aside; Revenue Divisional Officer, Thrissur directed to consider the complaint and decide the matter within three months.

Veerankutty Vs State of Kerala — Constitutional and Fundamental Rights | 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 MR. JUSTICE ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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MONDAY, THE 16^TH DAY OF JANUARY 2023 / 26TH POUSHA, 1944 W.P.(C) NO. 11675 OF 2021

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PETITIONER:

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VEERANKUTTY AGED 57 YEARS S/O.MOIDEENKUTTY, THOPPILTHODI HOUSE, PAZHAYANNUR P.O., THRISSUR-680587.

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BY ADV SUNNY MATHEW

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF PUBLIC WORKS, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 THE EXECUTIVE ENGINEER PWD ROADS SECTION, CHEMBUKAVU P.O., THRISSUR-680020.

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3 ASSISTANT EXECUTIVE ENGINEER PWD ROAD SECTION, MINI CIVIL STATION, CHELAKKARA P.O., THRISSUR-680586.

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4 STATION HOUSE OFFICER PAZHAYANNUR POLICE STATION, PAZHAYANNUR P.O., THRISSUR-680587.

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5 ROAD SAFETY COMMISSIONER KERALA ROAD SAFETY AUTHORITY, TRANS TOWERS, VAZHUTHAKKAD, THIRUVANANTHAPURAM-695104.

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W.P.(C) Nos.11675 of 2021 and 25576 of 2021

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6 THE SECRETARY PAZHAYANNUR GRAMA PANCHAYAT, PAZHAYANNUR P.O., THRISSUR-680587.

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7 CONVENOR TALUK DEVELOPMENT COMMITTEE, TAHASILDAR, THALAPALLY TALUK, THRISSUR-680519.

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8 CONVENOR TREE COMMITTEE, PAZHAYANNUR GRAMA PANCHAYAT, PAZHAYANNUR P.O., THRISSUR-680587.

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9 SURESH S/O. DHAMODARAN, SECRETARY, ANNAPOORNESWARY AUTO STAND UNION, KAPPIL HOUSE, PARAKKAL, KUMBALAKKODE P.O., THRISSUR-680587. [DELETED)***

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10* DEVASWOM OFFICER PAZHAYANNUR DEVASWOM, COCHIN DEVASWOM BOARD, PAZHAYANNUR P.O., THRISSUR-680 587**

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11** SANJITH M., S/O SATHEESAN, AGED 31, MELVEETTIL HOUE, CHERUKARA, PAZHAYANNUR, THRISSUR 680 587, SECRETARY OF THE TEMPLE ADVISORY COMMITTEE OF VETTEKKARANKAVU TEMPLE.**

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***ADDITIONAL R9 IS IMPLEADED AS PER ORDER DATED 16/06/2021 IN IA 1/2021. **ADDL.R9 DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 17-09-2021 IN IA 2/2021. ***ADDL.R10 IS IMPLEADED AS PER ORDER DATED 17-09-2021 IN IA 3/2021. **ADDL.R11 IS IMPLEADED AS PER ORDER DATED 16.01.2023 IN I.A.NO.2 OF 2022. BY ADVS. R1 TO R5 & R7 BY SRI.S.RAJMOHAN, SR.GP R6 & R8 BY BRIJESH MOHAN

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W.P.(C) Nos.11675 of 2021 and 25576 of 2021

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R6 & R8 BY R.RAJPRADEEP R10 BY K.P.SUDHEER, SC, COCHIN DEVASWOM BOARD R11 BY R.KRISHNA RAJ R11 BY E.S.SONI R11 BY KUMARI SANGEETHA S.NAIR R11 BY RESMI A.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.01.2023, ALONG WITH WP(C).25576 OF 2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) Nos.11675 of 2021 and 25576 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 ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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MONDAY, THE 16^TH DAY OF JANUARY 2023 / 26TH POUSHA, 1944

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W.P.(C) NO. 25576 OF 2021

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PETITIONERS:

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1 COCHIN DEVASWOM BOARD

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REPRESENTED BY ITS SECRETARY IN CHARGE, COCHIN DEVASWOM BOARD OFFICE, ROUND NORTH, THRISSUR - 680 001.

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2 THE DEVASWOM OFFICER, PAZHAYANNUR DEVASWOM, OFFICE OF THE DEVASWOM OFFICER, PAZHAYANNUR, THRISSUR DISTRICT.

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BY ADV K.P.SUDHEER

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RESPONDENTS:

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1 STATE OF KERALA

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REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.

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2 THE DISTRICT COLLECTOR, THRISSUR, FIRST FLOOR, CIVIL STATION, CIVIL LINE ROAD, KALAYAN NAGAR, AYYANTHOLE, THRISSUR DISTRICT -680 003.

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3 THE ASSISTANT EXECUTIVE ENGINEER, ROAD SUB DIVISION, PWD, THALAPPILLY, KUMARANELLOOR POST, PIN - 680 590.

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W.P.(C) Nos.11675 of 2021 and 25576 of 2021

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4 THE ASSISTANT ENGINEER

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PWD(ROAD SECTION), MINI CIVIL STATION, CHELAKKARA, THRISSUR DISTRICT, PIN - 679 521.

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5 PAZHAYANNUR GRAMA PANCHAYATH REPRESENTED BY SECRETARY, PAZHAYANNUR, THRISSUR DISTRICT, PIN - 680 587.

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6 THE CONVENOR (TAHASILDAR) TALUK DEVELOPMENT COMMITTEE, THALAPPILLY TALUK, THRISSUR DISTRICT, PIN 680 519.

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7 VEERANKUTTY AGED 57 YEARS, S/O. MOIDEENKUTTY, THOPPILTHODI HOUSE, PAZHAYANNUR POST, THRISSUR - 680 587.

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BY ADVS.

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R1 TO R4 & R6 BY SRI S.RAJMOHAN- SR GOVERNMENT PLEADER

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R5 BY BRIJESH MOHAN R5 BY R.RAJPRADEEP R7 BY SUNNY MATHEW

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 16.01.2023, ALONG WITH W.P.(C) NO.11675 OF 2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) Nos.11675 of 2021 and 25576 of 2021

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JUDGMENT

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P.G. Ajithkumar, J.

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W.P.(C) No.11675 of 2021:- Extraordinary jurisdiction

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of this Court under Article 226 of the Constitution of India is invoked by the petitioner to get a writ of mandamus directing respondents 3 to 7 to remove a Nagathara installed and Banyan tree planted in front of his building bearing No.19/1090-A of Pazhayannur Grama Panchayat. The structure and the tree are on Ambalanada-Edanadu road. The petitioner purchased the said building, on 27.09.2011 by virtue of sale deed No.2726/1/2011 of S.R.O., Pazhayannur. He alleges that a few autorickshaw drivers, who are parking their autorickshaws obstructing the frontage of that building, unauthorisedly installed a Nagathara and planted a Banyan tree. These structure and tree are on the public road. The petitioner therefore complained about the said illegal acts before the authorities concerned, pointing out the directions of the Apex Court and this Court, but the statutory authorities did not take timely action for removal of the unauthorised construction and tree on the public road side. The

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W.P.(C) Nos.11675 of 2021 and 25576 of 2021

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7^th respondent, however, on 06.12.2019 resolved to instruct the 6^th respondent Panchayat to take action for removal of the illegal construction and the directions issued in that regard is Ext.P8. Complaints were submitted before respondent Nos.2 and 3 also. But, no action was taken by the said authorities. The said illegal construction and tree pose threat to the persons using the public road and also cause obstruction to the vehicular traffic. It is also the obligation of the authorities under the Kerala State Road Safety Authority Act, 2007 (sic) to take action for removal of such unauthorised constructions and installations. In such circumstances, the petitioner has approached this Court by filing this Writ Petition.

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1.1 On 16.06.2021, this Writ Petition was admitted. The learned Government Pleader took notice for respondents 1 to 5 and 7. Pursuant to notice, respondent Nos.6, 8 and additional 9th respondent entered appearance.

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1.2 The 3^rd respondent has filed a statement explaining the facts and circumstances pertaining to the installation of the tree, which are sought to be removed. It is further submitted

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W.P.(C) Nos.11675 of 2021 and 25576 of 2021

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that the Taluk Development Committee, the 7^th respondent, instructed the 3^rd respondent to take action for removal of the unauthorised structures on the public road as per Ext.R3(a). The 3^rd respondent accordingly asked the Cochin Devaswom Board to remove the construction on the public road. The Assistant Conservator of Forest, Thrissur was asked to remove the tree planted on the public road. The stand taken by the 3^rd respondent is that the religious installation and the tree planted thereon are encroachments on the public road, and that he has taken action for removal of the same by requesting the Tahsildar, Thalappilly as per Ext.R3(e) letter to take necessary measures in that regard.

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1.3 The additional 10^th respondent was impleaded as per the order in I.A.No.3 of 2021. The additional 10th respondent, the Devaswom Officer, Pazhayannur Devaswom, Cochin Devaswom Board filed a counter affidavit wherein it is contended that the religious structure and Banyan tree referred to in the Writ Petition are not encroachments on the public road. 'Vettakkorumakankavu' is a Temple under the

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W.P.(C) Nos.11675 of 2021 and 25576 of 2021

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administrative control of the Cochin Devaswom Board. The Nagathara in question is the Sreemoolasthanam of the Temple. The Nagathara and the Banyan tree were there from time immemorial. When a letter was received from the 3^rd respondent, he was apprised of those facts. The allegation that the Nagathara was unauthorisedly installed and the Banyan tree planted on the public road is totally incorrect. A ‘Hundi’ of the Temple is also placed at the Nagathara. An Ashtamanglya Prashnam was conducted and as per Ext.R10(A) 'Charthu', it was informed that the said structures should be protected. The Cochin Devaswom Board was not given any proper notice in regard to the removal of the said structure and tree.

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W.P.(C) No.25576 of 2021:- The Cochin Devaswom Board along with the Devaswom Officer, Pazhayannur Devaswom has filed this Writ Petition seeking a writ of certiorari quashing Exts.P3, P4 and P7, a declaration that the 6^th respondent has no authority to issue Exts.P3 and P5 notices and a direction to restrain respondent Nos.2 to 4 and 6 from taking any action for

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W.P.(C) Nos.11675 of 2021 and 25576 of 2021

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removal of Sreemoolasthanam of 'Vettakkorumakankavu' Temple. The contentions set forth in the counter affidavit filed in W.P.(C) No.11675 of 2021 by the 2^nd petitioner herein are reiterated in order to substantiate the entitlement of the petitioners to get the reliefs.

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2.1 This Writ Petition was admitted on 17.11.2021. The learned Senior Government Pleader took notice for respondents 1 to 4 and 6. The learned Standing Counsel took notice for the 5^th respondent Grama Panchayat. On receipt of notice the 7^th respondent entered appearance through his learned counsel.

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2.2. An interim order staying further proceedings pursuant to Ext.P3, P5 and P7 was granted initially for a period of one month and the order was extended from time to time.

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2.3. The 7^th respondent has filed a counter affidavit in which he has reiterated his contentions in W.P.(C) No.11675 of 2021.

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2.4. The learned Government Pleader filed a memo adopting the contentions raised on behalf of the Government in the statement filed in W.P.(C) No.11675 of 2021.

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W.P.(C) Nos.11675 of 2021 and 25576 of 2021

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Heard the learned counsel appearing on either side in

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detail.

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The 7^th respondent in W.P.(C) No.11675 of 2021, Taluk Development Committee, Thalappilly Taluk is the 6h respondent in W.P.(C) No.25576 of 2021. The Taluk Development Committee as per its resolution dated 21.03.2020, which is Ext.P7 in W.P.(C) No.11675 of 2021 asked the Pazhayannur Grama Panchayat to take action for removal of the Nagathara and Banyan tree in question. In terms of the said resolution, the Assistant Executive Engineer, P.W.D. Division, Chelakkara, was also asked to take steps for removal of such structure and tree. The Assistant Executive Engineer in turn issued notice to the Cochin Devaswom Board to remove the said structures and banyan tree. The Board replied that the construction is a religious installation, precisely, that it is the Sreemoolasthanam of Vettakkorumakankavu Temple, which is under its administration.

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The petitioner in W.P.(C) No.11675 of 2021 would contend that the installation (Nagathara) and Banyan tree in

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W.P.(C) Nos.11675 of 2021 and 25576 of 2021

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front of his building are unauthorised and an encroachment upon the public road. On the other hand, the Cochin Devaswom Board would take a stand that the said installation and the tree are sacred and constituent parts of Vettakkorumakankavu Temple, Pazhayannur, namely its Moolasthanam, which have been in existence from time immemorial and its origin is lost in antiquity. Ext.P1 in W.P(c) No. 25576 of 2021 is the prasna chartu in the Ashtamanglyaprasanan held on 1.3.2017. It is relied on by the Devaswom Board to pursue it contention that the Sreemoolasthanam of the Temple has to be protected. The Devaswom Board stoutly denies that the same are encroachments upon the public road.

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The Taluk Development Committee, Thalappilly took a decision for removal of the installation and tree. Ext.P3 in W.P(c) No. 25576 of 2021 is the proceedings of the Taluk Development Committee in that regard. The Devaswom Board challenges it and Exts.P4, P5 and P7 which are the directions issued pursuant to Ext.P3. It is evident from the materials on record that no notice was given to the Cochin Devaswom Board

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W.P.(C) Nos.11675 of 2021 and 25576 of 2021

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before taking Ext. P3 decision by the Taluk Development Committee. The official respondents do not explain under what authority the Taluk Development Committee decided such a disputed question.

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The petitioner in W.P.(C) No.11675 of 2021 alleges that the Nagathara and Banyan tree are trespass upon the road. If that structure and tree are encroachments upon the public road, the authorities are bound to take necessary measures for the removal. But when the Cochin Devaswom Board contends that the same is not trespass and is the Sreemoolasthanam of Vettakkorumakankavu Temple, the said dispute is required to be resolved before initiating action for removal of the structure and tree. In that view of the matter Ext.P3, P4, P5 and P7 are bad in law and liable to be set aside. The dispute has to be decided by the appropriate authority. We hold that the matter requires consideration by the Revenue Divisional Officer, Thrissur.

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Accordingly, we dispose of these Writ Petitions without making any observations on the contention on either side. Exts.P3, P4, P5 and P7 in W.P.(C) No.25576 of

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W.P.(C) Nos.11675 of 2021 and 25576 of 2021

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2021 are set aside. The Revenue Divisional Officer, Thrissur is directed to consider Ext.P6 in W.P.(C) No.11675 of 2021, the complaint dated 06.12.2019 submitted by the writ petitioner therein, after hearing the petitioner, the Cochin Devaswom Board and other affected persons, in accordance with law, within a period of three months from the date of production of a certified copy of the judgement. All such parties shall be allowed

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to place on record their submissions; both legal and factual.

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Sd/-

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ANIL K. NARENDRAN, JUDGE

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Sd/P.G. AJITHKUMAR, JUDGE

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dkr

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W.P.(C) Nos.11675 of 2021 and 25576 of 2021

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APPENDIX OF WP(C) 11675/2021

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PETITIONER EXHIBITS

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EXHIBIT P1	TRUE COPY OF THE LAND TAX RECEIPT ISSUED FROM PAZHAYANNUR VILLAGE OFFICE ON 22.03.2021.
EXHIBIT P2	PHOTOGRAPH OF THE PETITIONER'S BUILDING IN THE YEAR 2011.
EXHIBIT P3	PHOTOGRAPH OF THE OBSTRUCTIONS IN FRONT OF THE PETITIONER'S BUILDING.
EXHIBIT P4	TRUE COPY OF THE ORDER OF THE HON'BLE
	SUPREME COURT IN SLP NO.8519/2006 DATED 31.01.2018.
EXHIBIT P5	TRUE COPY OF THE JUDGMENT OF DATED THIS HON'BLE COURT IN WP(C)NO.9670/2018 DATED 31.03.2021.
EXHIBIT P6	TRUE COPY OF THE PETITIONER'S
	COMPLAINT DATED 06.12.20219 SUBMITTED BEFORE THE 7TH RESPONDENT.
EXHIBIT P7	TRUE COPY OF THE MINUTES OF THE MEETING OF THE 7TH RESPONDENT DATED 21.03.2020.
EXHIBIT P8	TRUE COPY OF THE LETTER
	NO.A5/2365/2006 DATED 21.03.2020
	ISSUED TO THE PETITIONER BY THE 7TH RESPONDENT.
EXHIBIT P9	TRUE COPY OF THE PETITIONER'S
	COMPLAINT DATED 10.12.2019 GIVEN TO
	THE 2ND RESPONDENT.
EXHIBIT P10	TRUE COPY OF THE PETITIONER'S
	COMPLAINT DATED 10.12.2019 GIVEN TO THE 3RD RESPONDENT.

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W.P.(C) Nos.11675 of 2021 and 25576 of 2021

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EXHIBIT P11 TRUE COPY OF THE PETITIONER'S COMPLAINT DATED 10.02.2020 GIVEN TO THE 5TH RESPONDENT.

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EXHIBIT P12 TRUE COPY OF THE PETITIONER'S COMPLAINT DATED 24.03.2021 GIVEN TO THE 8TH RESPONDENT.

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RESPONDENT EXHIBITS

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EXHIBIT R10(A) TRUE COPY OFTHE PRASNACHARTHU IN ASTHAMANGALA PRASHNAM DATED 01/03/2017 EXHIBIT R6(A) TRUE COPY OF THE BUILDING PERMIT GRANTED TO THE PETITIONER FROM THE OFFICE OF THIS RESPONDENT ON 25.1.2013 ALONG WITH PLAN

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ANNEXURE R3(A) TRUE COPY OF THE LETTER NO.D3/GENERAL/2019-20 DATED 03.01.2020. ANNEXURE R3(B) TRUE COPLY OF THE LETTER NO.C.12/2014 DATED 15.01.2020. ANNEXURE R3(C) TRUE COPY OF LETTER NO.C-15/96 DAED 06.01.2020. ANNEUXRE R3(D) TRUE COPY OF THE LETTER NO.C-30/2020 DATED 30.01.2020. ANNEXURE R3(E) TRUE COPY OF THE LETTER NO.C-12/2020 DATED 13.02.2020.

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W.P.(C) Nos.11675 of 2021 and 25576 of 2021

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APPENDIX OF WP(C) 25576/2021

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PETITIONER EXHIBITS

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EXHIBIT P1 TRUE COPY OF PRASHNA CHARTHU IN THE ASHTAMANGLYA PRASHNAM HELD IN THE TEMPLE ON 1-3-2017 EXHIBIT P2 TRUE COPY OF PETITION DATED 06-12-2019 ALLEGED TO HAVE BEN PREFERRED BY THE 7TH RESPONDENT TO THE 6TH RESPONDENT. EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS OF THE 6TH RESPONDENT DATED 21-03-2020 EXHIBIT P4 TRUE COPY OF LETTER NO. A5/23665/2006 DATED 21-03-2020 ISSUED BY THE 6TH RESPONDENT EXHIBIT P5 TRUE COPY OF THE LETTER NO. C-12/2014 DATED 15-01-2020 ISSUED BY THE 4TH RESPONDENT TO THE 2ND PETITIONER. EXHIBIT P6 TRUE COPY OF REPLY DATED 30-01-2020 SUBMITTED BY THE 2ND PETITIONER TO THE 4TH RESPONDENT. EXHIBIT P7 TRUE COPY OF COMMUNICATION DATED 0301-2020 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT.

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RESPONDENT EXHIBITS

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EXHIBIT R7(A) A TRUE COPY OF THE ORDER DATED 10.12.2021 IN CRL.MP NO 5006/2021 PASSED BY THE CHIEF JUDICIAL MAGISTRATE THRISSUR EXHIBIT R7(B) A TRUE COPY OF THE TITLE DEED IN PETITIONER'S PROPERTY IN QUESTION

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W.P.(C) Nos.11675 of 2021 and 25576 of 2021

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EXHIBIT R7(C)

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A TRUE COPY OF THE LOCATION SKETCH OF THE BUILDING PWD ROAD AND BANIYAN TREE AMD NAGATHARA

Veerankutty v. State of Kerala

Case brief

What is this about?

What did the court decide?

Veerankutty v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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