Citation : 2025 Latest Caselaw 1078 Ker
Judgement Date : 16 July, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 16TH DAY OF JULY 2025 / 25TH ASHADHA, 1947
WP(C) NO. 28678 OF 2022
PETITIONERS:
1 DALAS VARGHESE,
AGED 60 YEARS
S/O. MATHEW VARGHESE, CHAKKALAMOOLAYIL HOUSE,
KUSUMAGIRI P.O, KAKKANAD, KOCHI - 682203.
2 ASWATHY DALAS,
AGED 59 YEARS
W/O. DALAS VARGHESE, CHAKKALAMOOLAYIL HOUSE, KUSUMAGIRI
P.O, KAKKANAD, KOCHI - 682203
3 TESMA PALAS,
AGED 27 YEARS
D/O. DALAS VARGHESE, CHAKKALAMOOLAYIL HOUSE, KUSUMAGIRI
P.O, KAKKANAD, KOCHI - 682203
BY ADVS.
SRI.S.SHANAVAS KHAN
SMT.S.INDU
RESPONDENTS:
1 THE STATE OF KERALA, REP BY PRINCIPAL SECRETARY TO
GOVERNMENT,
REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, LOCAL
SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695001.
2 THE DISTRICT TOWN PLANNER,
OFFICE OF THE DISTRICT TOWN PLANNER,TOWN PLANNING
DEPARTMENT CIVIL STATION, KAKKANAD,ERNAKULAM - 682 030
3 THE THRIKKAKARA MUNICIPALITY,
MUNICIPAL OFFICE, KAKKANAD P.O.KOCHI- 682 030,
REPRESENTED BY ITS SECRETARY
WP(C) No. 28678 of 2022 -2-
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4 THE SECRETARY,
THRIKKAKARA MUNICIPALITY MUNICIPAL OFFICE, KAKKANAD
P.O, KOCHI- 682 030
5 THE ASSISTANT EXECUTIVE ENGINEER,
THRIKKAKARA MUNICIPALITY, MUNICIPAL OFFICE, KAKKANAD
P.O, KOCHI- 682 030
BY ADVS.
GOVERNMENT PLEADER
SHRI.S.JAMAL, SC, THRIKKAKARA MUNICIPALITY
SPL.GP- K R DEEPA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 16.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) No. 28678 of 2022 -3-
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JUDGMENT
Dated this the 16th day of July, 2025
Petitioners have approached this Court seeking to quash Ext.P10
and also seeking a direction to respondents 2 to 5 to issue layout
approval as sought for by Ext.P5 in respect of the property having an
extent of 124.69 ares (3 acres 7 cents and 984 sq.links) situated in
Sy.Nos.586/1, 2, 1-2, 2-2 of Kakkanad Village, Kanayannur Taluk
without again referring to the objections in Ext.P10. Petitioners have
also sought for other consequential reliefs including issuance of a
building permit for construction of residential villas in the said
property.
2. 1st petitioner is in ownership and possession of 120.68 ares
of landed property, out of which 31.39 ares of landed property is
situated in Sy.No.586/1 and 89.29 ares of landed property is situated
in Sy.No.586/2 of Kakkanad Village, Kanayannur Taluk. The 2 nd
petitioner is the owner of 2.1 ares of landed property situated in
Sy.No.586/1-2 of the same village and the 3 rd petitioner is the owner
of 1.91 ares of landed property situated in Sy.No.586/2-2 of the said
village. The aforementioned properties are situated 450 metres north
of info park-express way, close to smart city and infopark and
surrounded by various types of buildings. To be more specific the
property is situated 300 metres from a junction connecting
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Parakkamugal-Nilampathinjimugal and Erickal Road. The property was
lying as a dry land, but in revenue records the same was classified as
'nilam', though the land was remaining uncultivated for the last more
than 50 years. Thereupon the petitioners approached the Revenue
Divisional Officer, Fort Kochi by filing necessary application under
Clause 6(2) of the Kerala Land Utilisation Order for the utilisation of
land for other purposes. Later classification of property was changed
as converted land by initiating proceedings under Section 6A of the
Kerala Land Tax Act and accordingly petitioners remitted tax so
assessed by the authority and initiated Exts.P4 to P4(c) tax receipts
as such the nature of the property has been changed as 'purayidom'.
3. Petitioners devised a project for establishing residential
villas in the property in question. Thereupon Ext.P9 plan was
prepared. Thereupon petitioners submitted Ext.P9 plan for layout
approval which was rejected as per Ext.P10 contending that as per
the structure of plan for Central City of Cochin property comprised in
Re.Sy. No.586/1, 2, 1/2 is included in agricultural zone and therefore
the application cannot be considered. It is aggrieved by Ext.P10 that
the present writ petition has been filed. Petitioners submit that the
issue involved in this case has already been concluded by various
judgments of this Court and to substantiate the same petitioners
have produced Exts.P12 to P20 judgments. Petitioners would further
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submit that their property is a dry land which is very much revealed
from Exts.P4 to P7 series of documents, and in near vicinity no paddy
land is available. Petitioners would submit that there is no meaning in
imposing restriction on a dry land for utilising the same for
construction. They would further submit that if the property is fit for
agricultural operation and surrounded by paddy fields the Revenue
Divisional Officer, Fort Kochi would not have granted permission for
utilisation of the land for other purposes. But permission is granted
for utilising the land for other purposes, and once permission is
accorded, it is highly arbitrary to impose restriction on construction
since the very purpose of obtaining permission is to carry out
construction activities. The area in which the property is situated is
filled with various types of buildings including buildings of Info Park
and Smart City. The restriction imposed is unreasonable and arbitrary
and violative of the rights of the citizen guaranteed under Article
300A of the Constitution of India.
4. Petitioners would further submit that the area in which the
property is situated is in fact now lying as a mixed zone. The following
establishment are situated near to the property in question namely
Pranav Bike workshop, toddy shop, Teapot Cafe, Chilse Restaurant,
TCG Resto Cafe, Heera Vastu Gramam (consisting of more than 30
villas), Thal Restaurant, Jain Tufnell Gardens (multi-storied apartment
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having 8 towers), Gala Fitness, Gala Heights Rooms, Ziti Mart
Groceries, Healthy Diet, Skyn the Day Spa, Teslamed Pharmaceuticals
Pvt.Ltd., Nestall Homes and Interiors, Loft, Ageless Entertainemnts,
Rovonize, Destinasia Vacations Pvt.Ltd., Mei-Middle East India Pvt.Ltd.
(Hotel Amenities Manufacturers and Exporters), Confident Capella
and Corona high rise apartments, Sky Holdings Lodging, Ultima
Skymax Highrise apartments are situated in and around the property
in question. All those establishments were constructed and are
functioning on the strength of building permit issued by third
respondent Municipality. That apart all the aforementioned categories
of buildings were established in an agricultural zone. Hence even
though the area is classified as agricultural zone as per the structural
plan (Detailed Town Planning Scheme) for Central city of Kochi the
area is now lying as a mixed zone since various categories of
buildings were allowed to be put up therein. If that be so, the 3 rd
respondent cannot reject the lay out approval by citing the
restrictions in the agricultural zone since no effort was made by them
to retain those areas as such.
5. Petitioners would further submit relying on Ext.P21, which
is the circular issued by the Chief Town Planner, Thiruvananthapuram,
wherein a permission was granted for expansion of existing public
and semi-public institutions to adjacent plots without regard to the
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land use in which the said adjacent plot is zoned and the
development regulation imposed by such zoning, subject to the
provisions of Kerala Conservation of Paddy Land and Wetland in force,
CRZ Regulations and other applicable statutes, and direction was
issued to the Secretary of Local Self Government Institutions with
concurrence of District Officer of the Department of Town and
Country Planning having jurisdiction over the area to permit in land
uses such as paddy land or water body, such uses that are
permissible in adjacent land use zone, if that particular land in the
paddy land zone or water body zone is not classified as paddy land or
water body as per revenue records. Relevant provisions of the said
circular is extracted below:-
"I. Expansion of existing Public and semi public institutions to adjacent plots shall be permissible without regard to the land use in which such adjacent plot is zoned and the development regulations imposed by such zoning, subject to the provisions of Paddy Land and Wetland Act in force, CRZ regulations, if applicable, or other applicable statutes.
II. The Secretary of Local Self Government Institutions, with the concurrence of the District Officer of the Department of Town and Country planning having jurisdiction over the area, shall permit in land uses such as Paddy Land or Water body, such uses that are permissible in adjacent land use zone, if that particular land in the Paddy Land Zone or Water body Zone is not classified as Paddy Land or Water body as per revenue records."
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In the light of the said circular issued by Ext.P21 there is no
impediment in granting the layout approval as sought for by the
petitioners and the rejection of the same as per Ext.P10 is without
any basis.
6. The learned Counsel relying on Rule 31(11) of the Kerala
Municipality Building Rules submits that, in case of layout for sub
division of land where number of residential plots exceed 20 or if the
area of the land is above 0.5 hectares approval of the District Town
Planner shall be obtained. Here without obtaining any such approval
as mandated in Chapter IV Rule 31 (11) of the Municipality Building
Rules, 2019 the Secretary of the local authority has rejected the
request as per Ext.P10. The learned Counsel appearing for the
petitioners would submit that in all the judgements referred to in this
writ petition, in similar circumstances, in respect of Thrikkakkara
Municipality itself, direction was issued to issue permit and various
constructions have also been undertaken based on the same. It is
also to be seen that the Thrikkakkara Municipality has filed an
affidavit stating that the subject property comes under agricultural
zone as per the structural plan of Central City of Cochin and the
residential plot is close to the said property, and the Secretary has
sworn to an affidavit that various permits have been granted for
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construction of commercial and other buildings in the vicinity of the
property in question including construction of various commercial
buildings and flats.
7. A further affidavit was filed on 11.12.2024 which give the
details of the building permit granted for construction of building
having more than 300 meter square area coming under agricultural
zone in the vicinity of the petitioners' plot which includes various flats
and other commercial establishments including Info Park building.
Petitioners relying on judgement of this Court in Basheer C.K. v.
Kozhikode Corporation and Others [2021 (3) KHC 578] have
considered the difficulty caused to the public due to the enormous
delay in revising the existing master plans and detailed town planning
scheme including the development in that area and issued directions
to authorities to revise the existing master plans, and detailed town
planning scheme in the State having regard to the development and
development trends in the area concerned, in a phased manner,
granting 18 months time from the date of receipt of a copy of the said
judgement. Interesting aspect to be noted is that in the statement
filed on behalf of the Chief Town Planner in the said case, the
following details were provided which could be seen from paragraph
15 of the said judgment which reads as follows:-
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"15. Be that as it may, let us deal with the grievances of persons who are affected on account of the delay on the part of the authorities concerned in reviewing and revising the master plans and detailed town planning schemes which are not consistent with the developments and development trends in the areas concerned. The materials on record indicate that there are 28 sanctioned master plans and 22 published master plans in the State. Likewise, there are 108 sanctioned detailed town planning schemes and 44 published draft detailed town planning schemes in the State. It is conceded in the statement filed on behalf of the Chief Town Planner that out of the 108 sanctioned detailed town planning schemes, 104 require variation, for the same are not in tune with the developments and development trends in the concerned areas. The statement does not however deal with the master plans. It is pointed out in the statement that for revising the existing master plans and detailed town planning schemes in conformity with the present developments, complying with the procedure prescribed in sub-
section (1) of S.50 of the Town Planning Act is a time consuming process. It was, therefore, suggested that if appropriate orders are issued by the Government, the existing master plans and detailed town planning schemes can be revised in conformity with the present developments under sub-section (3) of S.50 of the Town Planning Act. The suggestions made in this regard, contained in paragraphs 6 to 12 of the statement read thus:
6. Hence, the revision / variation of the sanctioned DTP Schemes is proposed to be done in accordance with S.50(3) of the Act. The variation of the schemes are proposed to be undertaken as two Programmes, i.e.,
1. Programme I- Variation of the zoning regulations Under this Programme, it is proposed to incorporate certain modifications
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the zoning regulations alone. accommodate the present developments and development trends without changes in the land use map. In many cases, this will be sufficient to bring an immediate relief for the affected parties.
2. Programme II - Variation of the Land Use Map and the corresponding zoning regulations: In the cases, where the developments warrant land use changes, both the map as well as the corresponding zoning regulations, may have to be changed and hence are included as Programme II.
7. Variation of Published DTP Schemes In the case of published DTP Schemes (but not yet sanctioned), the modifications may be issued as Interim Development Order (IDO) as per S.63 of KT&CP Act 2016. The decision to prepare an IDO has to be taken by the local body by resolution. The draft scheme is then prepared by LSGD Planning in consultation with the local body and the prepared scheme is to be forwarded to Government for sanction along with Council resolution. The IDO is then sanctioned by the Government in consultation with the Chief Town Planner.
8. Time frame for variation of the Schemes The technical part (Report & Maps) of the DTP scheme is prepared by LSGD Planning. As mentioned above, the local body concerned, this department (LSGD Planning) and Government are involved in the statutory process of the plan / scheme. Hence, presently only the time frame for the preparation of the draft zoning regulation and / or of the draft Land Use Map by this Department is worked out. The time schedule is prepared based on a prima facia assessment of the extent of variation required for each scheme and may be subjected to change after commencement of preparatory works and detailed site verification.
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9. It is proposed to undertake the scheme works in a consecutive but expeditious manner. Generally, in the case of Sanctioned Schemes, the works will be commenced with Programme I (variation of the zoning regulation alone) followed by, wherever necessary, Programme II (variation of Land Use Map and zoning regulation).
10. It is submitted that out of the 108 Sanctioned DTP Schemes, four schemes do not require further variation, for the time being. Thus 104 Sanctioned DTP Schemes require variation. Initially 77 Sanctioned DTP Schemes are planned to be taken up for variation under Programme I (Variation in Zoning Regulation only) and completed in one year. Of this, 42 can be completed within 6 months and remaining 36 within the next 6 months. For the remaining 36 Sanctioned Schemes, variation under Programme II ( Variation in Land use Map and Zoning Regulation) will be carried out and completed within 8 months after the completion of Programme I. Thus all the Sanctioned DTP Schemes will be covered under Variation within a period of 20 months. The draft for variation of the "DTP Scheme for Ward 4 & 6 of Kozhikode Corporation" sanctioned by Government (the scheme which has reference to the Writ Petition) will be completed by this department(LSGD Planning) within 3 months period, as the work in this regard is already in progress in the office of the District Town Planner, Kozhikode.
11. Immediately on completion of works for variation of Sanctioned DTP Schemes, the respective district office of the LSGD (Planning) will focus on preparation of IDO for 44 Published DTP Schemes. With a further period of 7 months, after Programme II, IDO for all Published DTP Schemes will be covered and technical works will be completed. Thus within 27
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months, the grievances faced by the public will be addressed to the maximum possible extent.
12. Schemes which are initially addressed in variation under Programme I and which essentially require further variation under Programme II for a permanent redressal can be taken up subsequently in a phased manner if required. It is also pointed out in the statement that the time frame for revision / variation of the DTP schemes is dependent on the following factors:
1. In the case of Sanctioned DTP Schemes, the works under Programme I and Il can be undertaken after the direction from Government as per S.50(3) of the Act is received.
2. In the case of Published DTP Schemes, the resolution for preparation of IDO is to be taken by the local body concerned.
The works regarding variation of the schemes can be undertaken by LSGD Planning once the resolution is taken and the same is intimated to this department.
3. Presently the department is already engaged in completing certain time. bound and committed works including Centrally sponsored schemes. Hence, variation of the DTP Schemes have to be carried out simultaneously with these works.
4. Additional funds and human resources exclusively for this programme are necessary. On allotment of the same by the Government, the technical works of variation can be started and carried out in an expeditious manner."
The statement filed in Basheer's case cited supra reveals that there
are 18 sanctioned master plans and 22 published master plan in the
State and there are 108 sanctioned detailed town planning scheme
and 44 published draft detailed town planning scheme in the State
and it is conceded in the statement filed on behalf of the Chief Town
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Planner that out of the 108 sanctioned detailed town planning
scheme 104 require variation for the same are not in tune with the
developments and development trends in the concerned area and
suggested as to how a revision could be made in the detailed town
planning schemes so as to be in tune with the development in an
area. Admittedly, going by the affidavit filed by the local authority the
areas those zoned as agricultural zone in the detailed town planning
scheme for the Central City of Cochin, is a developed area, wherein
large number of construction activity has been prohibited by the local
authority itself going by the affidavit filed by them. Petitioners have
also pointed out in ground 'F' of the writ petition regarding the
various buildings in existence in the area where the subject property
is situated. Further it is to be seen that the lay out approval submitted
by the petitioners as per Ext.P9 has to be decided by the District Town
Planner as mandated in Rule 31(11) of the Kerala Municipality
Building Rules, 2019. But the same has been rejected by the
Secretary of the local authority which is against the provisions of the
statute.
8. The learned Special Government Pleader would submit
that the Government is in the process of revision of the detailed town
planning schemes and the various master plans and detailed town
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planning schemes are subjected to review, so as to revise the same in
tune with the development of the area concerned.
9. Taking into consideration the above facts and
circumstances and also taking into consideration the fact that the
area has been zoned as agricultural zone in the master plan of the
Central city of Cochin, I am of the view that the grievance raised by
the petitioner is to be considered by the Government if an
appropriate request is made by the petitioners in this regard.
Therefore, the above writ petition is disposed of as follows:-
1. Petitioners shall submit necessary request for revision in the
existing master plan and the detailed town planning master plan
in tune with the development in the area, bringing out the
factual details available in the zone in which the subject
property is situated. Request in this regard containing all the
necessary details and with supporting documents including the
supporting judgements in this regard shall be submitted by the
petitioners before the 4th respondent Secretary of the
Thrikkakkara Municipality who shall forward the same to the
Chief Town Planner, Government of Kerala with its views and
also the details of the nature of the development in the
particular area where the subject property is situated and also
the details of the number of buildings existing, for which already
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permit has been granted, and as to the nature of the buildings
existing therein.
2. The Chief Town Planner on receipt of the same shall with its
views forward the same to the 1st respondent Government who
shall take a decision on the request of the petitioners after
affording an opportunity of hearing to the petitioners as well as
the respondents 3 and 4 on the request made by the
petitioners.
3. A decision in this regard shall be taken by the 1 st respondent
Government within an outer limit of four months from the date
of receipt of a copy of this judgment.
Sd/-
VIJU ABRAHAM JUDGE sbk/-
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APPENDIX OF WP(C) 28678/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE JUDGMENT DATED 20/11/2017 IN W.P. C) NO. 32505/2017 OF THIS HON'BLE COURT.
Exhibit P2 RUE COPY OF THE ORDER DATED 10/04/2018 OF THE REVENUE DIVISIONAL OFFICER, FORT KOCHI. Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 27/11/2020 IN W.P. (C) NO. 30720 OF 2018 OF THIS HON'BLE COURT.
Exhibit P4 TRUE COPY OF THE TAX RECEIPT DATED 13/04/2021 IN RESPECT OF THE PROPERTY OF THE FIRST PETITIONER.
Exhibit P4(a) TRUE COPY OF THE TAX RECEIPT DATED 13/04/2021 IN RESPECT OF THE PROPERTY OF THE FIRST PETITIONER.
Exhibit P4(b) TRUE COPY OF THE TAX RECEIPT DATED 13/04/2021 IN RESPECT OF THE PROPERTY OF THE SECOND PETITIONER.
Exhibit P4(c) TRUE COPY OF THE TAX RECEIPTS DATED 13/04/2021 IN RESPECT OF THE PROPERTY OF THE THIRD PETITIONER.
Exhibit P5 TRUE COPY OF THE THANDAPER ACCOUNT DETAILS DATED 09/02/2021 ISSUED BY VILLAGE OFFICER, KAKKANAD IN RESPECT OF PROPERTY OF FIRST PETITIONER.
Exhibit P5(a) TRUE COPY OF THE THANDAPER ACCOUNT DETAILS DATED 09/02/2021 ISSUED BY VILLAGE OFFICER, KAKKANAD IN RESPECT OF PROPERTY OF FIRST PETITIONER.
Exhibit P5(b) TRUE COPY OF THE THANDAPER ACCOUNT DETAILS DATED 09/02/2021 ISSUED BY VILLAGE OFFICER, KAKKANAD IN RESPECT OF PROPERTY OF THIRD PETITIONER.
Exhibit P5(c) TRUE COPY OF THE THANDAPER ACCOUNT DETAILS DATED 09/02/2021 ISSUED BY VILLAGE OFFICER, KAKKANAD IN RESPECT OF PROPERTY OF SECOND PETITIONER.
Exhibit P6 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 09.02.2022 ISSUED BY VILLAGE OFFICER, KAKKANAD IN RESPECT OF 31.39 ARES OF PROPERTY HELD BY THE FIRST PETITIONER.
Exhibit P7 TRUE COPY OF THE POSSESSION CERTIFICATE
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DATED 10.02.2022 ISSUED BY VILLAGE OFFICER, KAKKANAD IN RESPECT OF REMAINING PROPERTY HELD BY THE FIRST PETITIONER.
Exhibit P7(a) TRUE COPY OF THE POSSESSION CERTIFICATE DATED 10.02.2022 ISSUED BY VILLAGE OFFICER,KAKKANAD IN RESPECT OF PROPERTY HELD BY THE SECOND PETITIONER. Exhibit P7(b) TRUE COPY OF THE POSSESSION CERTIFICATEDATED 10/02/2022 ISSUED BY VILLAGE OFFICER, KAKKANAD IN RESPECT OF PROPERTY HELD BY THE THIRD PETITIONER.
Exhibit P8 TRUE COPY OF THE LOCATION SKETCH DATED 17/02/2022 ISSUED BY VILLAGE OFFICER, KAKKANAD.
Exhibit P9 TRUE COPY OF THE PLAN PREPARED BY THE PETITIONER.
Exhibit P10 TRUE COPY OF THE COMMUNICATION NO. TP1 /BA/182/22 DATED 27/5/2022 OF THE 5TH RESPONDENT.
Exhibit P11 TRUE COPY OF THE BUILDING PERMIT DATED 07/04/2018 ISSUED BY THE 5TH RESPONDENT IN FAVOUR OF 3RD PETITIONER.
Exhibit P12 TRUE COPY OF THE JUDGMENT DATED 27/05/2015 IN W.P (C) NO.15551 OF 2015 OF THIS HON'BLE COURT.
Exhibit P13 TRUE COPY OF THE JUDGMENT DATED 26/10/2016 IN WRIT APPEAL NO.559/2016 OF THE DIVISION BENCH OF THIS HON'BLE COURT.
Exhibit P14 TRUE COPY OF THE JUDGMENT DATED 23/03/2020 IN W.P (C) NO.9057 OF 2020 OF THIS HON'BLE COURT.
Exhibit P15 TRUE COPY OF THE JUDGMENT DATED 06/11/2019 IN W.P. (C) NO.29637/2019 OF THIS HON'BLE COURT.
Exhibit P16 TRUE COPY OF THE JUDGMENT DATED 14/06/2011 IN W.A.NO.1731 OF 2008 OF THE DIVISION BENCH OF THIS HON'BLE COURT.
Exhibit P17 TRUE COPY OF THE JUDGMENT DATED 16/03/2022 IN W.P (C) NO.19164/2021 OF THIS HON'BLE COURT.
Exhibit P18 TRUE COPY OF THE JUDGMENT DATED 21/07/2022 IN W.P (C) NO.14260/2022 OF THIS HON'BLE COURT.
Exhibit P19 TRUE COPY OF THE JUDGMENT DATED 21/07/2022 IN W.P (C) NO.19020/2022 OF THIS HON'BLE
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COURT.
Exhibit P20 TRUE COPY OF THE JUDGMENT DATED 22/08/2022 IN W.P(C) NO.25867/2022 OF THIS HON'BLE COURT.
Exhibit P21 TRUE COPY OF THE LETTER DATED 01/02/2020 OF THE CHIEF TOWN PLANNER (PLANNING), THIRUVANANTHAPURAM
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