IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. A.J. DESAI
&
THE HONOURABLE MR. JUSTICE V.G. ARUN
FRIDAY, THE 25[TH] DAY OF AUGUST 2023 / 3RD BHADRA, 1945
RP NO. 784 OF 2023
[SEEKING REVIEW OF THE JUDGMENT DATED 25.05.2022 IN WP(C) NO. 10754/2019 OF HIGH COURT OF KERALA]
## REVIEW PETITIONER/WRIT PETITIONER:
M/S. POABS ENTERPRISES PRIVATE LIMITED, KUTTOOR P.O., THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN - 689106, REPRESENTED BY THE MANAGING DIRECTOR SRI. JOSEPH JACOB.
BY ADVS. SRI. P. CHIDAMBARAM (SENIOR) SRI. N. JAMES KOSHY SRI. T. SANJAY SRI. MIDHUN R.
## RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF INDUSTRIES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001.
2 THE DISTRICT COLLECTOR, COLLECTORATE, KOLLAM, PIN - 691013. BY ADVOCATE GENERAL SRI. K. GOPALAKRISHNA KURUP BY ADV. SRI. M.H. HANIL KUMAR, SPECIAL G.P.
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 21.08.2023, ALONG WITH RP. NO.785/2023, THE COURT ON 25.08.2023 DELIVERED THE FOLLOWING:
RP. Nos.784 & 785 of 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. A.J. DESAI
&
THE HONOURABLE MR. JUSTICE V.G. ARUN
FRIDAY, THE 25[TH] DAY OF AUGUST 2023 / 3RD BHADRA, 1945
RP NO. 785 OF 2023
[SEEKING REVIEW OF THE JUDGMENT DATED 25.05.2023 IN WP(C) NO. 25917/2021 OF HIGH COURT OF KERALA]
## **REVIEW PETITIONER/WRIT PETITIONER:**
M/S. POABS GRANITES PRODUCTS PRIVATE LIMITED,
CHULLY P.O., ANGAMALY, ERNAKULAM DISTRICT, PIN - 683581. REPRESENTED BY ITS DIRECTOR SRI. BINU K. MATHEW.
BY ADVS. SRI. P. CHIDAMBARAM (SENIOR)
SRI. N. JAMES KOSHY SRI. T. SANJAY SRI. MIDHUN R.
## **RESPONDENTS/RESPONDENTS:**
1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001.
- 2 THE DIRECTOR OF MINING AND GEOLOGY, KESAVADASAPURAM, PATTOM PALACE P.O., THIRUVANANATHAPURAM, PIN - 695004.
- 3 THE DISTRICT COLLECTOR, ERNAKULAM DISTRICT, CIVIL STATION, COLLECTORATE, KAKKANAD, KOCHI, PIN - 682030.
- 4 THE TAHSILDAR, TALUK OFFICE, MINI CIVIL STATION, ALUVA, ERNAKULAM DISTRICT- 683101.
BY ADVOCATE GENERAL SRI. K. GOPALAKRISHNA KURUP BY ADV. SRI. M.H. HANIL KUMAR, SPECIAL G.P. BY SRI. S. KANNAN, SENIOR G.P.(GP-49)
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 21.08.2023, ALONG WITH RP.NO.784/2023, THE COURT ON 25.08.2023 DELIVERED THE FOLLOWING:
RP. Nos.784 & 785 of 2023
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## **O R D E R**
[R.P. No.784/2023 in W.P.(C) No.10754/2019 & R.P. No.785/2023 in W.P.(C) No.25917/2021]
## **A.J. Desai, CJ**
Apropos to the order dated 14.03.2023 passed by the Hon’ble Supreme Court in Special Leave to Appeal (C) No. 12978/2022 arising from the captioned writ petitions and judgment dated 25.05.2022 delivered by a Hon’ble Division Bench of this Court, the present review petitions are filed by the writ petitioners.
2. The short facts arising from the records available are that review petitioners filed petitions under Article 226 of the Constitution of India challenging the orders and stop memos issued by the District Collector and Tahsildar, by which they were restrained from carrying out mining activities in the lands, with respect to which they had been granted quarrying leases, and for a direction to permit them to continue the quarrying operations, based on the permission granted by the Secretary, Department of
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Revenue, as well as the Director of Mining and Geology, Thiruvananthapuram.
3. After hearing all the concerned and examining the counters filed by the respondents and documents produced by the parties, a Hon’ble Division Bench of this Court dismissed the writ petitions by judgment dated 25.05.2022. Being aggrieved by the said judgment, the review petitioners filed special leave to appeal before the Hon’ble Supreme Court.
4. The said appeal was not entertained by the Hon’ble Apex Court and the order dated 14.03.2023 passed, permitting the present applicants/writ petitioners to file review applications before the High Court, within a period of two weeks from the date of the said order and further observing that the review petitions shall not be dismissed only on the ground of limitation.
5. By orders dated 31.07.2023 in C.M.Appln. No.2 of 2023 in R.P. Nos. 784 & 785 of 2023, we condoned the delay in preferring the
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review petitions and ordered to list the review petitions for admission on 21.08.2023.
6. Along with the review petitions, the petitioners have produced orders in G.O.(MS) No.593/15/Revenue dated 11.11.2015 and G.O.(MS) No.95/2019/Rev. dated 08.03.2019 issued by the Principal Secretary to the Government, Revenue (P) Department, Government of Kerala.
7. Learned Senior Counsel Mr. P. Chidambaram, ably assisted by Adv. Mr. N. James Koshy, appearing for the review petitioners, would submit that the Geologist had permitted the review petitioners to carry out mining activities, excavate granite, and manufacture sand, which is popularly known as ‘M-Sand’ and that the review petitioners were continuing such activities since 2019. Surprisingly, the District Collector, Ernakulam, issued communication dated 30.07.2021 [Exhibit-P20 in W.P.(C) No.25917/2021] to the Tahsildar, Muvattupuzha/Kothamangalam/ Kunnathunadu/Aluva, to verify whether any quarries are
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functioning in the L.A. Pattaya lands, within their taluk limits and, if so, immediate steps shall be taken, in accordance with law, to stop the operation of such quarries. Pursuant to the said communication, the Tahsildar, Aluva, by communication dated 04.08.2021, called upon the applicants to submit the details about the quarrying and nature of the land. Simultaneously, on 05.08.2021, the Tahsildar passed an _ex parte_ order, stopping the quarrying operations carried on in the Pattaya lands.
8. The review petitioners challenged the said _ex parte_ order by filing W.P.(C) No.17285/2021 before this Court, seeking to pass appropriate orders after affording an opportunity of hearing to the parties, and ultimately, the final order came to be passed on 02.09.2021 holding that the land upon which excavation activities and mining operations are going on is the land assigned as L.A. Pattaya, and therefore, no other activities can be permitted to be carried out.
9. In W.P.(C) No.10754/2019, the petitioner is issued with
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Exhibit-P14 stop memo stating that a report has been given to the Mining and Geology Department to cancel the lease.
10. Learned Senior Counsel Mr. P. Chidrambaram would further submit that the revenue authorities have no power to issue stop memos when another department of the State of Kerala had permitted the review petitioners to carry out quarrying activities and which was going on for several years. He has taken us through Annexures-A3 and A4 orders dated 11.11.2015 and 08.03.2019 and would submit that as per the order dated 11.11.2015, which has not been considered by the Division Bench of this Court while deciding the writ petitions, the Principal Secretary to the Government had authorised the revenue department to grant sanction to those quarrying leaseholders, who might be excavating granite in the lands, on the strength of the pattayam obtained under the Land Assignment Rules. Therefore, the Tahsildar or the District Collector should have followed the order and refrained from issuing stop memos to the review petitioners.
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11. Learned Senior Counsel Mr. P. Chidambaram would further submit that, as per Annexure-A4 order dated 08.03.2019, it has been held that in those places where land is assigned under the Kerala Land Assignment Rules, 1964 and where a mining permit is already granted, mining activities may be regularised after collecting seignorage at the rates notified by the Government from time to time. He would also submit that the Division Bench needs to properly appreciate this order while passing the judgment under review. According to the learned Senior Counsel, when the Government itself wants to regularise the activity, the Division Bench ought to have considered the case and ought to have set aside the stop memos issued by the Tahsildar, Aluva, under the instruction of the District Collector, Ernakulam.
12. The other contention raised by the learned Senior Counsel is that regulation of mines and mineral development is included as Entry No.54 in the Union List and, therefore, the Mines and Minerals (Development and Regulation) Act, 1957 (the Act, for short) covers
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the field. It is also submitted that the quarrying leases have been granted in accordance with the Minor Mineral Concession Rules formulated in exercise of the power conferred on the State Government as per Section 15 of the Act. If that be so, the quarrying activity conducted on the strength of the lease cannot be interdicted by relying on the provisions of the Land Assignment Act and Rules.
13. By taking us through several documents produced along with the writ petitions, the learned Senior Counsel has tried to elaborate the arguments other than those stated herein above and requested to recall the judgment under review, thereafter, allow the review petitions, and quash the stop memos impugned therein.
14. Learned Senior Counsel would further submit that, after the issuance of stop memos, none of the respondents, i.e., neither the Geologist nor the District Collector, have initiated proceedings for the so-called breach of the Land Assignment Rules and Minor Mineral Concession Rules, and therefore, the review petitioners are
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unable to carry on mining activities for the last 15 years.
15. On the other hand, learned Advocate General Mr. K. Gopalakrishna Kurup appearing for the respondents, opposed the review petitions and submitted that the review petitioners, who were not successful in assailing the dismissal of the judgment before the Hon’ble Supreme Court, are trying to canvass all the points raised and considered by the Division Bench of this Court and upheld by the Hon’ble Apex Court by not entertaining the special leave to appeal.
16. By taking us through the order dated 14.03.2023 passed by the Hon’ble Apex Court, he would further submit that the review petitioners were permitted to file review petitions before the High Court, recording the submission that certain documents have not been considered by the Division Bench while passing the judgment under review. He would also submit that, under the pretext of filing review petitions, the matter cannot be argued as if the issues are being heard afresh.
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17. Learned Advocate General would submit that it is a wellsettled principle of law, based on a catena of decisions delivered by the Hon’ble Apex Court about the powers conferred under Order 47 Rule 1 of the Code of Civil Procedure, 1908 and Section 114, that such powers can only be exercised if a mistake or error apparent on the face of the record is pleaded and established. In exercise of the jurisdiction under Order 47 Rule 1 of CPC, it is not permissible for an erroneous decision to be reheard and corrected.
18. It is further submitted that the judgment sought to be reviewed, however, was challenged before the Hon’ble Apex Court, and it was not considered. Therefore, under the guise of some observations made by the Hon’ble Supreme Court, the writ petitions cannot be reheard. In support of his submissions, the learned Advocate General has relied on the decision of the Hon’ble Apex Court in **Parison Devi and Others** v. **Sumitri Devi and Others** reported in (1997) 8 SCC 715.
19. By relying upon another decision of the Hon’ble Apex Court
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in the case of **Shanti Conductors Private Limited and Another** v. **Assam Electricity Board and Others** reported in (2019) 19 SCC 529, the learned Advocate General would submit that review of a judgment can be questioned only on the ground on which review was permitted by the higher Court. He would also submit that in the present cases, review was permitted by the Hon’ble Apex Court only because certain documents have not been properly appreciated by the High Court while passing the judgment dated 25.05.2022.
20. He would further submit that as far as the order dated 11.11.2015, produced as Annexure-A3 in the review petitions, was never placed before the Hon’ble Division Bench of this Court and is placed for the first time before this Court in the review petitions, it cannot be argued that the Hon’ble Division Bench has not considered the said document. He would also submit that the legality of Annexure-A3 order was questioned before this Court in W.P.(C) No.619 of 2016 and by decision dated 29[th] March, 2016
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[ **Manu Anand** v. **State of Kerala** reported in 2016 (2) KLT 529], the said order has been quashed, authorising the District Collector to assign the land for other purposes. Therefore, the order dated 11.11.2015 cannot be considered at all.
21. That apart, by referring to Annexure-A4 order dated 08.03.2019 produced along with the review petitions, learned Advocate General would submit that the said order has also been considered by a Hon’ble Division Bench of this Court in W.P.(C) No.29153 of 2020 and by judgment dated 13.01.2020 [ **Manoj Krishnan** v. **State of Kerala** reported in 2021 (5) KLT 742], the relief sought for under the said order was refused by the Hon’ble Division Bench holding that though, at paragraph No.2 of the order dated 08-03-2019, the Government have employed the words “ordered to amend”, no such amendment has been made so far. Besides, no ordinance has been issued. It has also been stated in the said judgment that no quarrying permit has been granted in terms of the order dated 08.03.2019.
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22. By taking us through the judgment sought to be reviewed, learned Advocate General would submit that the argument advanced by the learned Senior Counsel for the review petitioners had already been considered and confirmed by the Hon’ble Apex Court, and therefore, there is no need to review and recall the judgment dated 25.05.2022 delivered in W.P.(C) Nos.10754/2019 & 25917/2021 by this Court. He would also submit that the power of the Tahsildar to issue stop memos has already been discussed in the judgment dated 25.05.2022. Therefore, he prayed for the dismissal of the review petitions.
23. In response to the arguments advanced by the learned Advocate General, learned Senior Counsel Mr. P. Chidambaram appearing for the review petitioners would submit that the Hon’ble Apex Court has granted permission to file review petitions before this Court, and therefore, the review petitioners can request this Court to recall the judgment dated 25.05.2022 delivered in W.P.(C)
Nos. 10754/2019 & 25917/2021 by the Division Bench on all grounds.
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24. He would also submit that in the case of **Parison Devi** (cited _supra_ ), the observation made by the Hon’ble Apex Court is with regard to the facts of the said case and does not apply to the present review petitions. In the case of **Manu Anand** (cited _supra_ ), it is submitted that this Court has quashed only that part of the order authorising the District Collector to assign the land. The other part of the order remains intact. Therefore, Annexure-A3 order dated 11.11.2015 is not applicable. Similar is the position with regard to Annexure-A4 order dated 08.03.2019.
25. We have heard learned Senior Counsel Mr. P. Chidambaram appearing for the review petitioners, learned Advocate General Mr.
K. Gopalakrishna Kurup appearing for the respondents, and perused the material on record.
26. The order dated 14.03.2023 passed by the Hon’ble Apex Court in Special Leave to Appeal (C) No.12978/2022 is reproduced hereunder:
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## **“O R D E R**
1. Learned senior counsel/counsel appearing for the petitioners submit that certain relevant documents have not been considered by the High Court. They, therefore, seek permission to withdraw the application(s) for permission to file special leave petition(s) as well as the special leave petitions with liberty to approach the High Court seeking review of the impugned orders.
2. Permission is granted.
3. The same are, accordingly, disposed of as withdrawn with the liberty prayed for.
4. In the event, the review applications are filed within two weeks from today, the same will not be dismissed only on the ground of limitation.”
27. The question that emerges for consideration is whether
this Court has the power to review a judgment because the Hon’ble Division Bench did not properly consider certain documents when the judgment dated 25.05.2022 was delivered.
28. Going through the order dated 14.03.2023 passed by the Hon’ble Apex Court, it could be deduced that the learned Senior Counsel appearing for the petitioners had submitted before the
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Hon’ble Apex Court that certain relevant documents have not been properly considered by the High Court, and therefore, sought permission to withdraw the application for permission to file a review of the judgment impugned, the special leave to appeal is disposed of as withdrawn with liberty to approach the High Court. In the light of the said order, the documents which are relevant, according to the review petitioners, and which have not allegedly been considered can be discussed. Accordingly, the review petitioners have annexed the two Government orders dated 11.11.2015 and 08.03.2019, along with a memo of application. Therefore, the review petitions cannot be treated as if the writ petitions have to be reheard on merits.
29. It is relevant to note that the order dated 11.11.2015, annexed to the review petitions, was never part of the writ petitions. However, the said order, authorising the District Collector/Revenue Department to grant legal sanction, came to be challenged before this Court and was ultimately quashed in **Manu**
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**Anand** (cited _supra_ ). In view of the said decision, Annexure-A3 order dated 11.11.2015 cannot be considered in the present review petitions. The said document is not in existence at all, and therefore, ought not to have been relied on by the review petitioners.
30. The submission made by the learned Senior Counsel appearing for the review petitioners that only a particular portion of Annexure-A3 order dated 11.11.2015 is quashed by this Court in **Manu Anand** (cited _supra_ ) also cannot be accepted for the reason that, in the writ petition, the order dated 11.11.2015 itself was under challenge and ultimately, the said order, authorising the District Collector concerned to assign the land for purposes other than those under the Kerala Government Land Assignment Act and Rules, was quashed in toto.
31. Insofar as the order dated 08.03.2019 is concerned, which is produced as Annexure-A4 in the review petitions, the same was examined by a Hon’ble Division Bench of this Court in the case of **Manoj Krishnan** (cited _supra_ ). The relief sought by the petitioner
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therein, relying upon the said order, was opposed by the State authorities and ultimately, the following observations have been made in the judgment, which is reproduced hereunder:
“7. Though, at paragraph No.2 of Exhibit P2, the Government have employed the words "ordered to amend", no such amendment has been made so far. Besides, no ordinance has been issued. As per the statement of the learned Senior Government Pleader, no quarrying permit has been granted in terms of the impugned order, Exhibit - P2. Procedure set out in the supporting affidavit to the prayers sought for can be raised only if, there is any amendment made. That apart, ordinance can be issued only when the Assembly is not in session. As on today, things are different. Instant writ petition is premature.”
Therefore, Annexure-A4 order dated 08.03.2019 cannot also be taken into consideration.
32. Apart from the above two aspects, let us consider a few decisions regarding the powers under Order 47 Rule 1 of CPC.
(i) In **Meera Bhanja** v. **Nirmala Kumari Choudhury** [(1995) 1 SCC 170], the Hon'ble Supreme Court held as under:
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“8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. In connection with the limitation of the powers of the Court under Order 47 Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution, this Court, in **Aribam Tuleshwar Sharma v. Aribam Pishak Sharma** , [(1979) 4 SCC 389] speaking through Chinnappa Reddy, J. has made the following pertinent observations:
“It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court.”
(ii) In **Parsion Devi and Others** v. **Sumitri Devi and Others** [(1997) 8
SCC 715], relying on the decisions in _**Smt. Meera Bhanjia v. Smt. Nirmala Kumari Chowdhury**_ [AIR 1995 SC 455] and _**Abhiram Taleshwar Sharma v. Abhiram Pishak Shartna and Ors.**_ [(1979) 4 SCC 389], the Hon'ble Supreme Court held as under:
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"Under Order XLVII, Rule 1 CPC, a judgment may be open to review inter alia, if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order XLVII, Rule 1, CPC. In exercise of the jurisdiction under Order XLVII, Rule 1 CPC, it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered has a limited purpose and cannot be allowed to be an appeal in disguise."
(iii) In **Kerala State Electricity Board** v. **Hitech Electrothermics & Hydropower Ltd. and Ors.** [(2005) 6 SCC 651], the Hon'ble Supreme Court held as under:
“10.....In a review petition, it is not open to this Court to reappreciate the evidence and reach a different conclusion, even if that is possible. Learned Counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise.”
(iv) In **Kamlesh Verma** v. **Mayawati and others** , [(2013) 8 SCC 320], while examining the scope of review, the Hon'ble Apex Court held as under:
“15. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order
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XLVII Rule 1 of Code of Civil Procedure. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction.”
## Considering the above factual and legal position, we are not
inclined to allow the review petitions. Accordingly, they are dismissed.
Sd/- **A.J. DESAI CHIEF JUSTICE**
Sd/- **V.G. ARUN JUDGE**
Krj
//TRUE COPY//
P.A. TO C.J.
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## **APPENDIX OF RP NO. 784/2023**
## **PETITIONER’S ANNEXURES** : -
ANNEXURE A1: COPY OF THE ORDER DATED 05.09.2022 IN SPECIAL LEAVE TO APPEAL (C) NO.12978/2022 FILED AGAINST THE JUDGMENT IN W.P.(C) NO.10754/2019 PASSED BY THE HON'BLE SUPREME COURT OF INDIA.
ANNEXURE A2: COPY OF THE FINAL ORDER DATED 14.03.2023 IN SPECIAL LEAVE TO APPEAL (C) NO.12978/2022 FILED AGAINST THE JUDGMENT IN W.P.(C) NO.10754/2019 PASSED BY THE HON'BLE SUPREME COURT OF INDIA. ANNEXURE A3: COPY OF THE G.O.(MS) NO.593/15/REVENUE DATED 11.11.2015. ANNEXURE A4: COPY OF THE G.O.(MS) NO.95/2019/REV. DATED 08.03.2019.
## **RESPONDENTS’ ANNEXURES: - NIL**
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## **APPENDIX OF RP NO. 785/2023**
## **PETITIONER ANNEXURES** : -
ANNEXURE A1: COPY OF THE ORDER DATED 05.09.2022 IN SPECIAL LEAVE TO APPEAL (C) NO. 12978/2022 FILED AGAINST THE JUDGMENT IN W.P.(C) NO. 25917/2021 PASSED BY THE HON'BLE SUPREME COURT OF INDIA.
ANNEXURE A2: COPY OF THE FINAL ORDER DATED 14.03.2023 IN SPECIAL LEAVE TO APPEAL (C) NO. 12978/2022 FILED AGAINST THE JUDGMENT IN W.P.(C) NO. 25917/2021 PASSED BY THE HON'BLE SUPREME COURT OF INDIA.
ANNEXURE A3: COPY OF THE G.O.(MS) NO.593/15/REVENUE DATED 11.01.2015. ANNEXURE A4: COPY OF THE G.O.(MS) NO.95/2019/REV. DATED 08.03.2019.
## **RESPONDENTS’ ANNEXURES: - NIL**
//TRUE COPY//
P.A. TO C.J.