Disposed

Dr.George Francis v. District Collector

Kerala HC9 Nov 2023WP(C)/27342/2022

Case brief

AI extract

What is this about?

High Court disposed two writ petitions challenging building tax assessment orders and attachment notices. Court held owners of individual shop rooms in a shopping complex are liable only for proportionate share of tax, directing deposit of specific amounts to quash attachments. Related assessment was held to be disposed following same judgment.

What did the court decide?

Petitioners directed to deposit proportionate building tax to quash attachment notices; assessment order quashed.

Dr.George Francis Vs District Collector — Property and Title | 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 DINESH KUMAR SINGH

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THURSDAY, THE 9^TH DAY OF NOVEMBER 2023 / 18TH KARTHIKA, 1945 WP(C) NO. 27342 OF 2022

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PETITIONER/S:

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DR.GEORGE FRANCIS, AGED 53 YEARS S/O. T.V.FRANCIS, THEKKINEDATH, REPUBLIC ROAD, PERUMPADANNA, PARAVUR VILLAGE, NORTH PARAVUR P.O.,, PIN - 683513

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BY ADVS. DINESH R.SHENOY EBIN MATHEW SWATHI R. KRISHNAN SILESH S. PRABHU

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RESPONDENT/S:

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1 DISTRICT COLLECTOR CIVIL STATION, KAKKANAD,, ERNAKULAM, PIN - 682030

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2 THE TAHSILDAR TALUK OFFICE, NORTH PARUR, PIN - 683513

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3 THE PENTA BUILDERS AND DEVELOPERS, PENTA SQUARE, MG ROAD, ERNAKULAM, REP. BY ITS MANAGING DIRECTOR, PIN – 682031

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SMT.RESHMITHA RAMACHANDRAN, GP

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.11.2023, ALONG WITH WP(C).31349/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C)s 27342/22 & 31349/14 .

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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 DINESH KUMAR SINGH

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THURSDAY, THE 9^TH DAY OF NOVEMBER 2023 / 18TH KARTHIKA, 1945 WP(C) NO. 31349 OF 2014

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PETITIONER/S:

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1 P.K.SASEENDRAN, AGED 62 YEARS S/O.LATE VALLATHU KRISHNAN ACHAN, RISHIKESH, THIRUVANCHIKULAM, KODUNGALLOOR P.O.

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2 A.S.ABISAM, AGED 30 YEARS AREEKKAL HOUSE, SANTHI NAGAR, MANNAM P.O, NORTH PARAVUR.

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3 THOMAS MATHEW, MULERICKAL HOUSE, CHERAI P.O, PALLIPPURAM.

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BY ADVS. DINESH R.SHENOY SANIL JOSE

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RESPONDENT/S:

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1 THE DISTRICT COLLECTOR, ERNAKULAM CIVIL STATION, KAKKANAD, COCHIN-30

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2 THE TAHSILDAR, NORTH PARAVUR, TALUK OFFICE, NORTH PARAVUR, PIN-683 513.

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3 THE REVENUE DIVISIONAL OFFICER, FORT KOCHI, O/O.RDO, FORT KOCHI, COCHIN-682 001.

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WP(C)s 27342/22 & 31349/14 .

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4 THE ADDITIONAL TAHSILDAR (REVENUE RECOVERY), TALUK OFFICE, NORTH PARAVUR, PIN-683 513.

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5 THE PENTA BUILDERS AND DEVELOPERS PVT.LTD., PENTA SQUARE, M.G.ROAD, ERNAKULAM, REP. BY ITS MANAGING DIRECTOR.

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6 VARKEY AUGUSTIN, DOOR NO.5/647, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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7 NASAR K.H, S/O.HAMSA, DOOR NO.5/627, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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8 ANAS C.A, DOOR NO.5/613, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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9 PEETER VARGHESE, DOOR NO.5/616, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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10 ALIYAR MUHAMMED DOOR NO.5/618, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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11 V.J.SEBASTIAN, DOOR NO.5/621, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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12 DILEEP KUMAR DOOR NO.5/623, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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13 MOHANAN, DOOR NO.5/626, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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14 BIJOY GEORGE DOOR NO.5/644, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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WP(C)s 27342/22 & 31349/14 .

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15 BINOY KURIAN DOOR NO.5/650, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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16 JIL DAVID DOOR NO.5/655, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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17 SINOJ DOOR NO.5/657, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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18 ANOOP DOOR NO.5/661, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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19 KUNJACHAN M.A DOOR NO.5/665, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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20 JOLLY XAVIER DOOR NO.5/666, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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21 P.K.PONNAMMA W/O.SUBRAMANYAN, DOOR NO.5/686, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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22	SHAMSUDIN
	S/O.ABDUL RE PENTA PLAZA,	HMAN, DOOR NO.5/649, MAIN ROAD,
	NORTH PARAVU	R - 683 513.
23	M.R.CHANDRAS	EKHARAN
	S/O.RAMAN NA	IR, DOOR NO.5/620,
	PENTA PLAZA,	MAIN ROAD, NORTH PARAVUR - 683 513.

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WP(C)s 27342/22 & 31349/14 .

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24 JASMIN, DOOR NO.5/630, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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25 NAVAS S/O.ABDUL KHADER, DOOR NO.5/631, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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26 SUDHEER KUMAR DOOR NO.5/638, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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27 KASIM DOOR NO.5/642, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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28 SHAJI DOOR NO.5/654, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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29 T.V.FRANCIS S/O.GEORGE FRANCIS,DOOR NO.5/682, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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30 K.DINESH KUMAR DOOR NO.5/691, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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31 RAMESH K.R. DOOR NO.5/695, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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32 T.V.NITHIN DOOR NO.5/707, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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33 V.D.BIJOY, S/O.DEVARAJAN, DOOR NO.5/313 A 42, PENTA PLAZA, MAIN ROAD, NORTH PARAVUR - 683 513.

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WP(C)s 27342/22 & 31349/14 .

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*ADDL.R34 THE SECRETARY PARAVUR MUNICIPALITY, NORTH PARAVUR - 683 513.

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*ADDL.R35 THE SUB REGISTRAR

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NORTH PARAVUR, O/O.SUB REGISTRAR OFFICE, NORTH PARAVUR - 683 513.

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*ADDL. R34 AND R35 ARE IMPLEADED AS PER ORDER DATED 06.02.2015 IN I.A. 1581/2015.

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BY ADVS. SMT.JASMINE M.M., GOVERNMENT PLEADER SRI.C.S.AJITH PRAKASH,SC,PARAVUR MUNICIPALITY SMT.SOUMYA T.S. FOR R6-R33

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD

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ON 09.11.2023, ALONG WITH WP(C).27342/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C)s 27342/22 & 31349/14 .

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J U D G M E N T

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[WP(C) Nos.27342/2022 & 31349/2014]

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WP(C) No.27342/2022

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The present writ petition has been filed by the petitioner impugning Ext.P9 order of assessment and

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demand notice dated 14.8.2006 in respect of building tax and attachments as regards the property and three shop rooms covered by Exts.P1 to P3 documents.

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As per the averments in this writ petition, the petitioner is the absolute owner of three shop rooms bearing door Nos.5/313A/44, 45 & 46 of Paravur Municipality. The land, in which the shop rooms have been constructed, originally belonged to Sri.M.V.Thomas, who constructed a shopping complex there in the name and style “Penta Plaza” in collaboration with the third respondent. The petitioner had entered into separate agreements for purchase of undivided share with the land owner and the builder, and thereafter entered into agreements for construction of the three shop rooms

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WP(C)s 27342/22 & 31349/14 .

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in the building in the said property, which have been numbered as Nos.5/313A/44, 45 & 46. The petitioner has acquired three shop rooms vide sale deeds dated 25.10.1997. It appears that notice was issued to Sri.M.V.Thomas for assessing building tax on the shopping complex “Penta Plaza”. Assessment order was passed on 31.1.1997 in respect of the shopping complex assessing building tax at Rs.3,64,800/-. Out of the assessed amount of Rs.3,64,800/-, an amount of Rs.91,200/- was deposited as pre-condition for appeal. The appellate authority, the R.D.O, Fort Kochi, vide Ext.P7 order dated 6.7.1998 set aside the assessment order and remanded the matter back to the Tahsildar, North Paravur, the assessing authority, for fresh disposal. On remand, the assessing authority again assessed the entire building as one unit and fresh demand notice was issued on 17.3.1999. The builder, the third respondent, challenged the fresh assessment order and demand notice dated 17.3.1999 before this Court

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WP(C)s 27342/22 & 31349/14 .

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in OP No.10302/1999. This Court vide judgment dated 5.11.2005 quashed the assessment order and demand notice and directed the assessing authority to decide the case, de novo. On remand, again the same assessment order was passed.

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In the meantime, the third respondent had become bankrupt and therefore, the amount of building tax could not be recovered from it. Learned counsel for the petitioner submits that the petitioner is the owner of only three shop rooms out of 117 shops in the said shopping complex, “Penta Plaza” and his liability would be only in respect of the said three shops, i.e. Rs.7,015.38 (2,73,600x3/117), inasmuch as Rs.91,200/- was already paid by the builder. He further submits that the entire liability of building tax cannot be fastened on the petitioner and that attachment of his shop rooms is also unjustifiable. The petitioner is ready to discharge the liability of building tax in respect of his share/shop rooms.

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WP(C)s 27342/22 & 31349/14 .

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Smt.Reshmitha Ramachandran, learned

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Government Pleader, however submits that the building was constructed by Sri.M.V.Thomas in collaboration with the third respondent. The petitioner purchased the aforesaid shops along with the liability for payment of taxes, including the building tax. The charge for payment of the building tax is on the entire shopping complex and therefore, all the shops are under attachment, including that of the petitioner.

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I have considered the submissions. There are 117 shop rooms constructed in the shopping complex. The petitioner is the owner of only three shops and it would be wholly inequitable and unjustifiable to recover the entire amount of the building tax in respect of 117 shops from the petitioner. However, the petitioner cannot escape from the liability of payment of building tax in respect of the three shops on proportionate basis.

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WP(C)s 27342/22 & 31349/14 .

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In view of the above, this writ petition is disposed of with direction to the petitioner to deposit Rs.7,015.38, along with interest @ 6% per annum with effect from 15.7.1996 till the date of payment, towards the building tax for his three shop rooms. The petitioner shall deposit the said amount within a period of one month. Subject to making deposit of the building tax along with interest as directed above, attachment notices in respect of the petitioner's shop rooms covered by Exts.P1 to P3 shall stand quashed.

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WP(C) No.31349/2014

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Facts in this writ petition also are similar to that of the petitioner in WP(C) No.27342/22. The petitioners herein challenge Ext.P9 assessment order dated 14.8.2006 and consequential demand notices, Exts.P10 and P11, passed by the second respondent. They own commercial shop rooms (total four Nos.) in the very same shopping complex, “Penta Plaza” situated in

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WP(C)s 27342/22 & 31349/14 .

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North Paravoor. Respondent Nos.6 to 33 are some of the other owners of individual units in the aforesaid shopping complex.

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Since the challenge in this writ petition is the very same assessment order and consequent demand notices dated 14.8.2006 as in WP(C) No.27342/2022, which has been decided by this Court as above, this writ petition also is liable to be disposed of following the judgment rendered above in WP(C) No.27342/2022.

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Hence, this writ petition is also disposed of holding that the petitioners herein are also liable to pay building tax proportionate to their share/shop rooms in the shopping complex. As stated above, the total building tax liability for the entire 117 shop rooms comes to Rs.2,73,600/-. Each petitioner herein shall pay the same proportionate to their share based on the number of shop rooms owned in the shopping complex, along with 6% interest per annum with effect from 15.7.1996 till the date of payment. Since the

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WP(C)s 27342/22 & 31349/14 .

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first and third petitioners own one shop rooms each, they are liable to pay Rs.2,338.46 each (2,73,600x1/117), along with interest as above. Insofar as the second petitioner herein is concerned, he owns two shop rooms and his share of the tax liability comes to Rs.4,676.92, along with interest as above. Petitioners are directed to make such payments within one month. In case of the petitioners making deposit of the aforesaid amount within a period of one month as above, the attachment notices in respect of the petitioners' shop rooms, G-15, B-18, B-19 and F-25, in the shopping complex “Penta Plaza” shall stand quashed.

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All pending interlocutory applications, if any, in these writ petitions stand dismissed.

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Sd/DINESH KUMAR SINGH JUDGE

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WP(C)s 27342/22 & 31349/14 .

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APPENDIX OF WP(C) 31349/2014

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PETITIONER EXHIBITS

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EXHIBIT P1	TRUE PHOTOCOPY OF AGREEMENT FOR SALE OF UNDIVIDED SHARE IN THE LAND DATED 20/09/1995
EXHIBIT P2	TRUE PHOTOCOPY OF AGREEMENT FOR CONSTRUCTION MADE BETWEEN THE 4TH RESPONDENT AND THE FIRST PETITIONER 20/9/1995.
EXHIBIT P3	TRUE PHOTOCOPY OF SALE DEED NO.5548/1996, DATED 10/9/1996, NORTH PARAVUR SRO.
EXHIBIT P4	TRUE PHOTOCOPY OF RECEIPT DATED 7/12/1996 EVIDENCING PAYMENT OF FULL AMOUNT TOWARDS CONSTRUCTION COSTS OF ROOM NOS.B-18 AND 19 BY THE SECOND PETITIONER.
EXHIBIT P5	TRUE PHOTOCOPY OF CERTIFIED COPY OF SALE DEED NO.7719/1996, PARAVUR SRO DATED 14/12/1996.
EXHIBIT P6	TRUE PHOTOCOPY OF RECEIPT DATED 17/3/1997 ISSUED TO THE 3RD PETITIONER FOR PAYMENT OF COST OF CONSTRUCTION.
EXHIBIT P7	TRUE PHOTOCOPY OF THE ORDER DATED 6/7/1998 ISSUED BY THE 3RD RESPONDENT K/DIS.2536/97/G.
EXHIBIT P8	TRUE PHOTOCOPY OF JUDGMENT DATED 5/11/2005 IN OP.NO.10302/1999, HIGH COURT OF KERALA.
EXHIBIT P9	TRUE PHOTOCOPY OF LETTER DATED 4/11/2014 ISSUED BY THE 4TH RESPONDENT UNDER THE RIGHT TO INFORMATION ACT, ALONG WITH CERTIFIED COPIES OF THE ORDER OF ASSESSMENT DATED
	14/8/2006 ISSUED BY THE TAHSILDAR, NORTH

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WP(C)s 27342/22 & 31349/14 .

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PARAVUR, NOTICE OF DEMAND DATED 14/8/2006 ISSUED BY THE TAHSILDAR, NORTH PARAVUR AND PROCEEDINGS OF THE TAHSILDAR, NORTH PARAVUR DATED 14/8/2006.

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EXHIBIT P10 TRUE PHOTOCOPY OF THE LETTER DATED 18/7/2014 ISSUED BY THE TAHSILDAR, NORTH PARAVUR.

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EXHIBIT P11 TRUE PHOTOCOPY OF NOTICE DATED 27/8/2014 ISSUED BY THE TAHSILDAR, NORTH PARAVUR

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EXHIBIT P12 TRUE PHOTOCOPY OF REPLY STATEMENT DATED 18/9/2014 SUBMITTED BY THE 3RD PETITIONER BEFORE THE TAHSILDAR, NORTH PARAVUR.

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EXHIBIT P13 TRUE PHOTOCOPY OF JUDGMENT DATED 28/9/2011 IN WA.NO.1297/2011, HIGH COURT OF KERALA.

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RESPONDENTS' EXHIBITS

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EXHIBIT R2(a) TRUE COPY OF CERTIFICATE DATED 10.12.2014 BEARING NO.R1-11556/14 ISSUED BY THE MUNICIPAL SECRETARY

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EXHIBIT R2(b) TRUE COPY OF STATEMENTS DATED 16.1.1997 EXHIBIT R2(c) TRUE COPY OF THE LETTER DATED NIL TO THE TAHSILDAR, PARAVUR TALUK

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EXHIBIT R2(d) TRUE COPY OF MINUTES OF THE MEETING HELD ON 30.9.2014.

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EXHIBIT R2(e) TRUE COPY OF RECEIPT NO.5269163 EXHIBIT R2(f) TRUE COPY OF LETTER OF PRESIDENT, FRIENDSHIP CENTRE

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WP(C)s 27342/22 & 31349/14 .

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APPENDIX OF WP(C) 27342/2022

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PETITIONER EXHIBITS

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Exhibit P1	TRUE PHOTOCOPY OF SALE DEED NO.5578/1997 PARUR SRO
Exhibit P2	TRUE PHOTOCOPY OF THE SAID AGREEMENT OF SALE, SALE DEED NO.5576/1997
Exhibit P3	TRUE PHOTOCOPY OF OWNERSHIP CERTIFICATE DATED 22/1/1999 ISSUED BY THE SECRETARY, PARAVUR MUNICIPALITY
Exhibit P4	TRUE PHOTOCOPY OF ENCUMBRANCE CERTIFICATE NO.6837/2022 DATED 20/5/2022, PARAVUR SRO
Exhibit P5	ENCUMBRANCE CERTIFICATE DATED 18/5/2022 NO.6777/2022 , PARAVUR SRO
Exhibit P6	TRUE PHOTOCOPY OF NOTICE DATED 27/8/2014 HANDED OVER TO THE PETITIONER IN AUGUST, 2022
Exhibit P7	TRUE PHOTOCOPY OF THE ORDER DATED 6/7/1998 ISSUED BY THE RDO, FORT KOCHI K/DIS.2536/97/G
Exhibit P8	TRUE PHOTOCOPY OF JUDGMENT DATED 5/11/2005 IN OP.NO.10302/1999, HIGH COURT OF KERALA
Exhibit P9	TRUE PHOTOCOPY OF LETTER DATED 4/11/2014 THE ISSUED BY THE ADDITIONAL TAHSILDAR (RR) UNDER THE RIGHT TO INFORMATION ACT, ALONG WITH CERTIFIED COPIES OF THE ORDER OF ASSESSMENT DATED 14/8/2006 ISSUED BY THE 2ND RESPONDENT/TAHSILDAR, NORTH PARAVUR, NOTICE OF DEMAND DATED 14/8/2006 ISSUED BY THE 2ND
	RESPONDENT/TAHSILDAR, NORTH PARAVUR AND

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WP(C)s 27342/22 & 31349/14 .

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PROCEEDINGS OF THE 2ND RESPONDENT/TAHSILDAR, NORTH PARAVUR DATED 14/8/2006

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Exhibit P10 TRUE PHOTOCOPY OF JUDGMENT DATED 28/9/2011 IN WA.NO.1297/2011, HIGH COURT OF KERALA

Dr.George Francis v. District Collector

Case brief

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Dr.George Francis v. District Collector

Case brief

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