High Court of KeralaSingle JudgeWrit petitions disposed with directions for reg...
Biju Ramesh and Sreeja R. v. The State of Kerala and Kumarapuram Grama Panchayat and others
Case / Petition Number:WP(C) Nos. 37645/2016 & 29609/2021
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- ANU SIVARAMAN
- Judgment Date
- 2023-06-23
- Court Decision / Holding
- Writ petitions are ordered accordingly. The Panchayat is to consider the constructions strictly under the 2011 Building Rules, accounting for the land surrendered and applying proportionate deductions; if there are further violations (verandah width, staircase width), the matter shall be sent to the 3rd respondent (in WP(C).29609/2021) for regularisation under the 2018 Rules. The necessary shall be done by the Panchayat and the 3rd respondent within two months from the date of receipt of a copy of this judgment.
- Final Disposition
- Writ petitions disposed with directions for regularisation assessment under 2011 Rules considering land surrender; remaining issues to be referred to 3rd respondent for possible regularisation under the 2018 Rules; two-month timeline.
Parties to the Case
Appellants / Petitioners
- Biju Ramesh
- Sreeja R.
Respondents
- The State of Kerala
- The Secretary, Kumarapuram Grama Panchayat
- The District Town Planner
Legal Representation & Advocates
Counsels for Petitioners
- • Jawahar Jose
- • Jarin Joseph
- • Jaison Antony
- • Cissy Mathews
Counsels for Respondents
- • M.R. Sudheendran
Case Synopsis & Summary
This writ petition arises from challenges to a stop memo issued by the Kumarapuram Grama Panchayat and seeks regularisation of construction under Kerala Panchayat building laws. Petitioners Biju Ramesh and Sreeja R. contend they developed a 2.50 acre property, surrendering 0.83 acre for a panchayat road in 2016, and constructed the balance under a building permit dated 07.06.2016. A stop memo was issued on 22.10.2016, but petitioners argue the surrender should be considered to reduce apparent violations, with the structure being built strictly in conformity with the permit. They rely on the Kerala Panchayat Building (Regularisation of Unauthorized Construction) Rules, 2018, and on George Varghese v. State of Kerala and others to support regularisation for pre-31.07.2017 constructions. The Government/panchayat contend regularisation under the 2018 Rules is unavailable since the construction was completed after 31.07.2017; they insist on applying the 2011 Building Rules and the 2019 Rules, noting that land surrendered must be reflected in records. The court observes the permit was issued under the 2011 Rules and that surrender must be taken into account, while the 2019 Rules cannot retroactively govern; it directs the Panchayat to evaluate under the 2011 Rules with the surrender taken into account, and to refer remaining issues to the 3rd respondent for possible regularisation under the 2018 Rules. The petitions are disposed with directions to complete the exercise within two months from the judgment copy.
Provisions of Law Cited
Kerala Panchayat Building Rules, 2011Kerala Panchayat Building Rules, 2019Kerala Panchayat Building (Regularisation of Unauthorized Construction) Rules, 2018Right to Information Act (RTI Act), Rule 3
Submissions & Arguments
Contentions of Appellants / Petitioners
The petitioners assert construction on 2.50 acres with 0.83 acre surrendered to the Panchayat for a road; the building permit (07.06.2016) was honoured and a stop memo (22.10.2016) issued otherwise; they contend the surrender should be deducted, and the deficiency in verandah and staircase could be regularised by the Panchayat in light of the 2011 permit, with reference to 2018 Rules to regularise unauthorized construction. They rely on George Varghese v. State of Kerala to argue eligibility under the 2018 Rules for pre-2017 constructions.
Contentions of Respondents
The State and Panchayat contend that regularisation under the 2018 Rules is unavailable for constructions completed after 31.07.2017; regularisation must be considered under the 2011 Rules (with 2019 Rules in view for post-2017 aspects); the possession and surrender must be reflected in revenue records; any remaining deficiencies should be referred to the 3rd respondent for regularisation under the 2018 Rules.
Cited Precedents (2)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| George Varghese v. State of Kerala and others | 2017 (2) KHC 743 | Mentioned Only | Cited by petitioners to support regularisation under the 2018 Rules; court references the case but does not adopt its principle. |
| OS No.339/2016 | OS 339/2016 | Mentioned Only | Exhibit P14 includes a judgment from OS No.339/2016; cited as a related proceeding without explicit adoption in the judgment. |
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Extracted Judgment Text
Exact text extracted from official judgment records.
# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
## **`THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN`**
```
FRIDAY, THE 23[RD] DAY OF JUNE 2023 / 2ND ASHADHA, 1945
WP(C) NO. 37645 OF 2016
```
## **`PETITIONER:`**
```
BAIJU RAMESH
AGED 49 YEARS, S/O N.RAMESAN, BEENA BHAVAN,
KATTIL MARKET PO, THAMALLAKKAL NORTH, KUMARAPURAM,
HARIPAD, ALAPUZHA DT.690514.
```
```
BY ADV JAWAHAR JOSE
```
## **`RESPONDENTS:`**
- **`1 KUMARAPURAM GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, KUMARAPURAM, HARIPAD, ALAPUZHA DT.690514.`**
- **`2 SECRETARY KUMARAPURAM GRAMA PANCHAYAT, KUMARAPURAM, ALAPUZHA -690514. BY ADV SRI.M.R.SUDHEENDRAN`**
```
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.06.2023, ALONG WITH WP(C).29609/2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
```
```
WP(C) NOS.37645/2016 & 29609/2021
```
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2
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# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
# **`PRESENT`**
```
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY, THE 23[RD] DAY OF JUNE 2023 / 2ND ASHADHA, 1945
```
## **`WP(C) NO. 29609 OF 2021`**
## **`PETITIONERS:`**
|**`1`**|**`BAIJU RAMESH`**|
|---|---|
||**`AGED 54 YEARS, S/O N RAMESAN,`**|
||**`RESIDING AT BEENA BHAVAN,`**|
||**`THAMALLAKKAL NORTH P O,`**|
||**`KATTIL MARKET, KUMARAPURAM, HARIPAD,`**|
||**`ALAPPUZHA DISTRICT, PIN-690548.`**|
|**`2`**|**`SREEJA R.`**|
||**`AGED 52 YEARS, W/O BAIJU RAMESH,`**|
||**`RESIDING AT BEENA BHAVAN, THAMALLAKKAL NORTH P O,`**|
||**`KATTIL MARKET, KUMARAPURAM, HARIPAD,`**|
||**`ALAPPUZHA DISTRICT, PIN-690548.`**|
||**`BY ADVS.`**|
||**`JAWAHAR JOSE`**|
||**`JARIN JOSEPH`**|
||**`JAISON ANTONY`**|
||**`CISSY MATHEWS`**|
## **`RESPONDENTS:`**
|**`1`**|**`THE STATE OF KERALA`**|
|---|---|
||**`REPRESENTED BY ITS SECRETARY,`**|
||**`LOCAL SELF GOVERNMENT INSTITUTIONS DEPARTMENT,`**|
||**`GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.`**|
|**`2`**|**`THE SECRETARY`**|
||**`KUMARAPURAM GRAMA PANCHAYATH,`**|
||**`KUMARAPURAM P O, HARIPAD,`**|
||**`ALAPPUZHA DISTRICT, PIN-690514.`**|
|**`3`**|**`THE DISTRICT TOWN PLANNER`**|
||**`LOCAL SELF GOVERNMENT DEPARTMENT (PLANNING),`**|
||**`5TH FLOOR, CIVIL STATION ANNEX BUILDING,`**|
||**`THATHAMPALLY P O, ALAPPUZHA, PIN-688013.`**|
```
WP(C) NOS.37645/2016 & 29609/2021
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```
3
```
```
4LALI
AGED 53 YEARS, S/O KOCHUNANU,
PUSHPAMANGALAM, THAMALLAKKAL NORTH P O,
KATTIL MARKET, KUMARAPURAM, HARIPAD,
ALAPPUZHA DISTRICT, PIN-690548.
(NOW RESIDING AT ROOM NO.G/58, MAHADU BHIVA NAGAR,
MORYA NAGARI, MANERA GAON, ULHASANGAR, MAHARASHTRA,
PIN-421004).
SMT.UTHARA A.S
SMT.SARITHA NANDANAN
SRI.M.R.SUDHEENDRAN(S-666)
SMT.K.R.DEEPA-SPL.GP
```
```
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.06.2023, ALONG WITH WP(C).37645/2016, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
```
```
WP(C) NOS.37645/2016 & 29609/2021
```
```
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```
## **`JUDGMENT`**
## **[WP(C) Nos.37645/2016, 29609/2021]**
## **Dated this the 23[rd] day of June, 2023**
W.P.(C).No.37645/2016 is filed challenging a stop memo issued by the Panchayat while W.P.(C).No.29609/2021 is filed challenging Exts.P13, P15, P20, P23 and P25 and seeking directions to the respondents to regularize the construction carried out by the petitioners.
2. Heard the learned counsel for the petitioners, the learned standing counsel appearing for the Panchayat as well as the learned Special Government Pleader.
3. It is submitted by the learned counsel for the petitioners that the petitioners had carried out construction in 2.50 Ares of property. It is submitted that 0.83 Ares of property was freely surrendered to the Panchayat in the year 2016 and construction was actually carried out in 1.67 Ares of property. It is submitted that the construction was carried out strictly in accordance with the building permit which was
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WP(C) NOS.37645/2016 & 29609/2021
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granted in the year 2016. However, a stop memo had been issued on 22.10.2016 without considering the free surrender of the property by the petitioners. It is submitted that after several rounds of litigations and considerations, Ext.P23 proceedings were issued in W.P.(C). No.29609/2021 on 16.07.2021 by the Panchayat. It is submitted that the petitioners were informed of the specific deficiencies in the constructions carried out by them only by Ext.P23. It is submitted that a table showing the deficiencies was made available to the petitioners. It is stated that the deficiencies shown are at serial Nos.5, 6, 8 and 9 of the table appended with the notice. It is contended by the learned counsel for the petitioners that in case the free surrender of the property by the petitioners is taken note of, there would be no deficiency as shown in serial Nos.5 and 6, since the petitioners have provided the necessary side yards as also the required parking and the deficiency, if any, is permissible in view of the free surrender of land by the petitioners. It is contended that it is only with regard to the width of the verandah and the width of the staircase that there is deficiency. It is submitted that the said deficiency can also be
```
WP(C) NOS.37645/2016 & 29609/2021
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6
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regularised by the 3[rd] respondent in view of the fact that the construction was on the basis of a building permit dated 07.06.2016 and was admittedly being carried out as on 31.07.2017.
4. The learned counsel for the petitioners would place reliance on a judgment of this Court in **George Varghese v. State of Kerala and others** [2017 (2) KHC 743] to contend that a construction which was being carried out before 31.07.2017 is also liable to be regularised in terms of the Kerala Panchayat Building (Regularisation of Unauthorized Construction) Rules, 2018 (hereinafter referred as ‘the 2018 Rules’).
5. A statement and a counter affidavit have been placed on record by the Government. The contention of the Government is to the effect that since the application for regularisation was submitted after completion of the construction only on 03.09.2021, the application was returned to the Panchayat stating that the construction which was not completed before 31.07.2017 cannot be regularised under the provisions of the 2018 Rules.
6. The Panchayat has also placed a detailed statement on record
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WP(C) NOS.37645/2016 & 29609/2021
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admitting that there was a free surrender of 1.05 Ares of property by the petitioners and the remaining property of the petitioners is having an extent of 1.77 Ares. It is submitted that since the petitioners had actually surrendered 1.05 Ares of property to the Panchayat for the panchayat road, they are entitled to the benefit of the said surrender. However, it is contended that the petitioners had carried out and completed the construction only in 2021 and that therefore the provisions of the Kerala Panchayat Building Rules, 2019 (hereafter referred as ‘the 2019 Rules’) are applicable. It is stated that the land surrendered by the petitioners has not been deducted from the revenue records and the Panchayat had required the Tahsildar (Land Records) to deduct the land surrendered from the revenue records and the petitioners were required to submit a modified plan in tune with the sketch prepared by the Tahsildar Surveyor as per the 2019 Rules.
7. Having considered the contentions advanced, I notice that the building permit had been issued to the petitioners on 07.06.2016 under the 2011 Building Rules. The respondent who has issued the building permit cannot thereafter contend that the construction should now be
```
WP(C) NOS.37645/2016 & 29609/2021
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carried out in accordance with the 2019 Building Rules which were not in force at the relevant time. The fact that the petitioners had surrendered property for the construction of the panchayat road is not disputed by the Panchayat. The extent of the property surrendered, according to the petitioners, is 0.83 Ares, while according to the Panchayat, it is 1.05 Ares. In the above view of the matter, the specific contention raised by the petitioners that the extent of the property surrendered is to be taken into consideration while considering whether there are any violations committed by the petitioners is an acceptable proposition.
8. The Panchayat therefore has to consider the constructions carried out by the petitioners strictly in accordance with the 2011 Building Rules and taking note of the surrender of the property by the petitioners and the proportionate deductions which are permissible in the Building Rules as per the statutory rules of the year 2011. In case there are any further violations with regard to the width of the verandah and the width of the staircase, it is for the Panchayat to send the matter for regularisation to the 3[rd] respondent in W.P.(C).
```
WP(C) NOS.37645/2016 & 29609/2021
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No.29609/2021 who shall consider the same in accordance with the 2018 Rules without raising the objection that the construction had not been completed by the petitioners before 31.07.2017. This is in view of the fact that the construction could not be completed by the petitioners before 31.07.2017 only due to the issuance of the stop memos issued by the Panchayat. Necessary shall be done by the Panchayat and the 3[rd] respondent within a period of two months from the date of receipt of a copy of this judgment.
These writ petitions are ordered accordingly.
```
Sd/-
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```
ANU SIVARAMAN
JUDGE
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```
NP
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WP(C) NOS.37645/2016 & 29609/2021
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## **`APPENDIX OF WP(C) 37645/2016`**
|**`PETITIONER’S EXHIBITS`**||
|---|---|
|**`EXHIBIT P1`**|**`TRUE COPY OF THE BUILDING PERMIT DATED`**|
||**`7.6.2016.`**|
|**`EXHIBIT P2`**|**`TRUE COPY OF SITE PLAN.`**|
|**`EXHIBIT P3`**|**`TRUE COPY OF THE BUILDING PLAN.`**|
|**`EXHIBIT P4`**|**`TRUE COPY OF THE NOTICE ISSUED BY THE`**|
||**`RESPONDENT DATED 22.10.2016.`**|
|**`EXHIBIT P5`**|**`TRUE COPY OF THE WRITTEN EXPLANATION`**|
||**`SUBMITTED BY THE PETITIONER DATED 4.11.2016.`**|
|**`EXHIBIT P6`**|**`TRUE COPY OF THE LETTER DATED 21.11.2016`**|
||**`ISSUED BY THE 2ND RESPONDENT`**|
|**`EXHIBIT P7`**|**`TRUE COPY OF THE LETTER DATED 21.11.2016`**|
||**`ISSUED BY THE 2ND RESPONDENT`**|
|**`EXHIBIT P8`**|**`TRUE COPY OF ENVELOPE CONTAINING POSTAL`**|
||**`STAMPS`**|
|**`EXHIBIT P9`**|**`TRUE COPY OF THE LAND RELINQUISHMENT IN FORM`**|
||**`A RULE 3 ISSUED UNDER THE RTI ACT BY THE 2ND`**|
||**`RESPONDENT`**|
|**`EXHIBIT P10`**|**`TRUE COPY OF THE REPRESENTATION DATED`**|
||**`06.12.2017 BEFORE THE 1ST RESPONDENT ALONG`**|
||**`WITH THE ACKNOWLEDGEMENT.`**|
|**`EXHIBIT P11`**|**`TRUE COPY OF THE ORDER NO.A3/9887/2018 DATED`**|
||**`01.01.2018`**|
|**`EXHIBIT P12`**|**`TRUE COPY OF THE APPLICATION SUBMITTED BEFORE`**|
||**`THE 2ND RESPONDENT DATED 23.11.2018`**|
|**`RESPONDENTS’ EXHIBITS:`**||
|**`EXHIBIT R1(A)`**|**`A TRUE COPY OF THE INSPECTION REPORT DATED`**|
||**`25.10.2016 SUBMITTED BY THE ASSISTANT`**|
||**`ENGINEER OF THE KUMARAPURAM GRAMA PANCHAYATH`**|
|**`EXHIBIT R1(B)`**|**`A TRUE COPY OF THE ORDER DATED 21.11.2016 IN`**|
||**`IA NO.2336/2016`**|
```
WP(C) NOS.37645/2016 & 29609/2021
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## **`APPENDIX OF WP(C) 29609/2021`**
- **`PETITIONERS’ EXHIBITS Exhibit P1 TRUE COPY OF THE BUILDING PERMIT DATED 7.6.2016 TOGETHER WITH THE APPROVED PLAN.`**
- **`Exhibit P2 TRUE COPY OF THE NOTICE DATED 22.10.2016 ISSUED BY THE 2ND RESPONDENT.`**
- **`Exhibit P3 TRUE COPY OF THE OBJECTIONS DATED 4.11.2016 SUBMITTED BY THE 1ST PETITIONER TO EXHIBIT - P2 NOTICE.`**
- **`Exhibit P4 TRUE COPY OF THE LETTER DATED 21.11.2016 ISSUED BY THE 2ND RESPONDENT.`**
- **`Exhibit P5 TRUE COPY OF THE ORDER DATED 21.11.2016 ISSUED BY THE 2ND RESPONDENT.`**
- **`Exhibit P6 TRUE COPY OF THE ORDER DATED 5.4.2017 IN WPC NO.37645/2016 OF THIS HON'BLE COURT.`**
- **`Exhibit P7 TRUE COPY OF THE APPLICATION DATED 6.12.2017 SUBMITTED BY THE 1ST PETITIONER FOR REGULARIZATION.`**
- **`Exhibit P8 TRUE COPY OF THE LETTER DATED 1.1.2018 ISSUED BY THE 2ND RESPONDENT.`**
- **`Exhibit P9 TRUE COPY OF THE ORDER DATED 16.03.2018 IN WPC NO.37645/2016 OF THIS HON'BLE COURT.`**
- **`Exhibit P10 TRUE COPY OF THE LETTER DATED 26.03.2018 ISSUED BY THE 1ST PETITIONER TO THE 2ND RESPONDENT.`**
- **`Exhibit P10(a) TRUE COPY OF THE APPLICATION DATED 25.05.2018 SUBMITTED BY THE PETITIONER FOR REGULARIZATION.`**
- **`Exhibit P11 TRUE COPY OF THE LETTER DATED 25.06.2018 ISSUED BY THE 3RD RESPONDENT.`**
- **`Exhibit P12 TRUE COPY OF THE LETTER DATED 4.9.2018 ISSUED BY THE 1ST PETITIONER TO THE 3RD RESPONDENT.`**
- **`Exhibit P13 TRUE COPY OF THE ORDER DATED 15.1.2019 ISSUED BY THE 3RD RESPONDENT TOGETHER WITH THE MINUTES OF THE REGULARISATION COMMITTEE HELD ON 26.12.2018.`**
- **`Exhibit P13(a) TRUE COPY OF THE KERALA PANCHAYATH BUILDING (REGULARISATION OF UNAUTHORISED CONSTRUCTION) RULES, 2018.`**
- **`Exhibit P14 TRUE COPY OF THE JUDGMENT DATED 30.10.2020 IN OS NO.339/2016 ON HE FILES OF MUNSIFF'S COURT, HARIPAD.`**
```
WP(C) NOS.37645/2016 & 29609/2021
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|**`Exhibit P15`**|**`TRUE COPY OF THE NOTICE DATED 6.12.2020`**|
|---|---|
||**`ISSUED BY THE 2ND RESPONDENT.`**|
|**`Exhibit P16`**|**`TRUE COPY OF THE OBJECTIONS DATED 10.12.2020`**|
||**`SUBMITTED BY THE 1ST PETITIONER TO EXHIBIT -`**|
||**`P15 NOTICE.`**|
|**`Exhibit P17`**|**`TRUE COPY OF THE APPLICATION DATED 10.12.2020`**|
||**`SUBMITTED BY THE 1ST PETITIONER FOR`**|
||**`REGULARIZATION.`**|
|**`Exhibit P18`**|**`TRUE COPY OF THE LETTER DATED 24.02.2021`**|
||**`ISSUED BY THE 2ND RESPONDENT.`**|
|**`Exhibit P19`**|**`TRUE COPY OF THE LETTER DATED 4.3.2021`**|
||**`SUBMITTED BY THE 1ST PETITIONER TO THE 2ND`**|
||**`RESPONDENT.`**|
|**`Exhibit P20`**|**`TRUE COPY OF THE ORDER DATED 13.04.2021`**|
||**`ISSUED BY THE 2ND RESPONDENT.`**|
|**`Exhibit P21`**|**`TRUE COPY OF THE LETTER DATED 26.05.2021`**|
||**`ISSUED BY THE 2ND RESPONDENT.`**|
|**`Exhibit P22`**|**`TRUE COPY OF THE LETTER DATED 23.06.2021`**|
||**`SUBMITTED BY THE 1ST PETITIONER TO THE 2ND`**|
||**`RESPONDENT.`**|
|**`Exhibit P22(A)`**|**`TRUE COPY OF THE REVISED PLAN SUBMITTED TO`**|
||**`THE 2ND RESPONDENT ALONG WITH EXHIBIT- P-22.`**|
|**`Exhibit P23`**|**`TRUE COPY OF THE ORDER DATED 16.07.2021`**|
||**`ISSUED BY THE 2ND RESPONDENT.`**|
|**`Exhibit P24`**|**`TRUE COPY OF THE REPLY SUBMITTED BY THE 1ST`**|
||**`PETITIONER TO EXHIBIT -P23.`**|
|**`Exhibit P25`**|**`TRUE COPY OF THE ORDER DATED 6.9.2021 ISSUED`**|
||**`BY THE 3RD RESPONDENT.`**|
|**`RESPONDENTS’ ANNEXURES`**||
|**`ANNEXURE R2(2)`**|**`TRUE COPY OF THE NOTICE TO THE PETITIONERS`**|
||**`DATED 17/2/2023`**|
|**`ANNEXURE R2(3)`**|**`TRUE COPY OF THE LETTER DATED 21/2/2023`**|
||**`ISSUED TO VILLAGE OFFICER, KUMARAPURAM`**|
||**`VILLAGE IS PRODUCED`**|
|**`ANNEXURE R2(4)`**|**`TRUE COPY OF THE LETTER DATED 21/2/2023`**|
||**`ISSUED TO THE TALUK SURVEYOR IS PRODUCED`**|
|**`ANNEXURE R2(5)`**|**`TURE COPY OF THE LETTER DATED 28/2/2023`**|
||**`ISSUED FROM THE TALUK OFFICE IS PRODUCED`**|
|**`ANNEXURE R2(6)`**|**`TRUE COPY OF THE LETTER DATED 3/3/2023 SENT`**|
||**`TO THE VILLAGE OFFICER IS PRODUCED`**|
|**`ANNEXURE R2(7)`**|**`TRUE COPY OF THE STATEMENT OF THE 2ND`**|
||**`RESPONDENT IS PRODUCED`**|
|**`ANNEXURE R2(8)`**|**`TRUE COPY OF THE LETTER DATED 07.06.2023 TO`**|
||**`THE TAHSILDAR`**|
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## **`WP(C) NOS.37645/2016 & 29609/2021`**
```
ANNEXURE R2(9)TRUE COPY OF THE LETTER DATED 07.06.2023 TO
THE PETITIONER IS PRODUCED.
ANNEXURE R2(10)TRUE COPY OF THE REPORT GIVEN BY TALUK OFFICE
AND SKETCH IS PRODUCED.
```