Allowed

N.M.Narayanan v. the Maintenance Tribunal

Kerala HC10 Aug 2020WP(C)/1329/2020

Case brief

AI extract

What is this about?

A neighbour sought reopening of a senior citizen's property-transfer dispute through the Human Rights Commission and Maintenance Tribunal. The Court held that the Commission lacked jurisdiction, the neighbour lacked standing under Section 23, and the Tribunal lacked review power. It allowed the writ petition and quashed the Commission's order, complaint and Tribunal notice.

What did the court decide?

Exhibits P8 to P10—the State Human Rights Commission's order, the neighbour's complaint and the Maintenance Tribunal's notice—were quashed.

N.M.Narayanan Vs the Maintenance Tribunal — Maintenance and Alimony | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 10TH DAY OF AUGUST 2020 / 19TH SRAVANA, 1942

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WP(C).No.1329 OF 2020(M)

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PETITIONER:

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N.M.NARAYANAN AGED 53 YEARS NANMANASSERI ILLAM, KUPPAM PO, PARIYARAM VIA, KANNUR-670 503.

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BY ADVS. SRI.KALEESWARAM RAJ SRI.VARUN C.VIJAY KUM.A.ARUNA KUM.THULASI K. RAJ SMT.MAITREYI SACHIDANANDA HEGDE

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RESPONDENTS:

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1 THE MAINTENANCE TRIBUNAL, THALASSERY, CONSTITUTED UNDER S.7 OF THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007, TALIPARAMBA, REPRESENTED BY ITS AUTHORIZED OFFICER, TALIPARAMBA, KANNUR-670 141.

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2 K.P. NARAYANAN NAMBOOTHIRI, (AGE & FATHER'S NAME NOT KNOWN TO THE PETITIONER) KANNOTH, PAPPANOD, NEAR THRICHAMBARAM U.P. SCHOOL, TALIPARAMBA-670 141.

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3 STATE HUMAN RIGHTS COMMISSION REPRESENTED BY ITS CHAIRMAN, 4TH FLOOR TURBO PLUS TOWER, PMG ROAD JUNCTION, NEAR PMG, THIRUVANANTHAPURAM, KERALA-695 033.

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4 VILLAGE OFFICER, TALIPARAMBA-670 141.

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R2 BY ADV. SRI.T.H.ARAVIND R5 BY ADV. SRI.T.RAMPRASAD UNNI R5 BY ADV. SRI.S.M.PRASANTH R5 BY ADV. SMT.R.S.ASWINI SANKAR R5 BY ADV. SRI.G.RENJITH SR.GP.SRI.SURIN GEORGE IPE FOR R4

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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“C.R.”

JUDGMENT

Manikumar, CJ

Instant writ petition is filed seeking for the following reliefs:

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“i) To issue a writ of prohibition restraining the Maintenance Tribunal (1^st respondent) from proceeding further with ExhibitP9 complaint and exercising jurisdiction in issues raised in the complaint under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

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ii) To issue a writ of certiorari quashing Exhibit-P8 as unjust illegal and arbitrary.

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iii) To issue a writ of certiorari quashing Exhibit-P10 as unjust, illegal arbitrary.

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iv) To declare that, the Maintenance Tribunal (1^st respondent) has no jurisdiction to proceed further with Exhibit-P9.”

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Facts leading to the filing of the writ petition are that, petitioner is

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the son of Mr. N.M. Ghrini Namboodiri and late Mrs. Umadevi. His parents are having two more children, viz., Mr. N.M. Krishnan and Mrs. Shantha. Petitioner is aggrieved by the reopening of a finalised issue regarding care to be provided to his father. The issue regarding maintenance of the father of the petitioner and transfer of property in the name of the petitioner had become final in Exhibit-P1 order passed by the Maintenance Tribunal. Exhibit-P1 order

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was passed as per the settlement arrived at between the petitioner and his father. Petitioner has been honouring the said settlement without default. When there was an attempt to reopen the already finalised issue, a learned single Judge of this Court as per Exhibit-P4 judgment refused to interfere with the same. Now, as per Exhibit-P8 order, the State Human Rights Commission (3^rd respondent) has recommended the 1^st respondent to again consider the issue, on a petition filed by Mr. K. P. Narayanan Namboodiri (2^nd respondent), who is only a neighbour. Thereafter, on the basis of Exhibit-P9 complaint filed by Mr. K. P. Narayanan Namboodiri, Maintenance Tribunal has issued ExhibitP10 notice. Challenging Exhibits-P8 to P10, petitioner has filed the instant writ petition.

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In support of his contentions, petitioner has, inter alia, raised the following grounds:

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“A. Ext. P8 was passed without hearing the petitioner based on the false narration given by Sri. N.M. Krishnan. Therefore, Ext. P8 is violative of the principles of natural justice. As per Section 16 r/w 29 of the Protection of Human Rights Act, 1993, 3^rd respondent was bound to hear the petitioner before passing Ext.P10. Ext.P8 has the effect of damaging the reputation of the petitioner, as per which, he is a person who is not willing to look after his father.

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B. Reading of Ext. P4 would unequivocally show that the petitioner was always willing to look after his father. Exts. P5 to P7 would show that, even after genuine attempts, it is the father, who did not come to reside with the petitioner. The 2^nd respondent had also caused obstructions to the petitioner by taking his father home. Petitioner has been paying maintenance to his father as directed in Exts. P1 and P4 without default. Therefore, it is only to harass the petitioner and with a malicious motive that Ext. P9 is filed. For this reason also, the 1^st respondent ought not have initiated proceedings on Ext. P9 complaint.

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C. It is contended that, the 2^nd respondent, who is the complainant in Ext. P9 has no locus standi to initiate proceedings under Section 4, since he does not fall under any of the categories mentioned in Section 5 of the Senior Citizens Act. The 2^nd respondent is only a neighbour according to him.

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D. The claim in Ext. P9 complaint is that the property transferred to the petitioner by his father, should be returned. Section 23 of Maintenance and Welfare of Parents and Senior Citizens Act, 2007 deals with void nature of transfer of properties. Only a transferor can make a claim under Section 23 of the Act. However in the case on hand, Exts. P1 and P4 had finally decided the said issue. The transferor, i.e. the father of the petitioner, cannot initiate any proceedings. That apart, he does not want to do that. The father of the petitioner is physically fit and capable of approaching the 1^st respondent on his own, therefore, "organisation referred to in Explanation to sub-section (1) of Section 5" of the above said Act

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has no role in this case. For this reason also the 1^st respondent has no authority or power to entertain Ext. P9 complaint.

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E. The Maintenance Tribunal (1^st respondent) ought not to have assumed jurisdiction under the Senior Citizens Act on Exhibit- P9 complaint and issued Ext. P10 notice. Entertaining, Exhibit-P9 would only imply that the 1^st respondent assumed it has the power to review Ext. P1 order. However, the Senior Citizens Act does not provide the power to the 1^st respondent to review Exhibit- P1 order.

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F. Ext.P1 is an order passed by the erstwhile Maintenance Tribunal exercising its quasi judicial power. Therefore, there is no power for the 1^st respondent to review Ext.P1 order.

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G. Ext.P1 order and proceedings on the basis of Ext.P9 are issued in violation of Ext. P4 judgment. Ext.P1 was issued based on the settlement arrived at between the parties. The petitioner has never violated the said condition.”

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Notwithstanding the rival contentions and submissions advanced, in order to have an amicable settlement, by order dated 17.01.2020, we referred the matter to the District Mediation Centre, Thalassery, Kannur District. But, as per the mediation report dated 17.02.2020, father did not turn up and that there is no settlement. Thus, we heard the writ petition on merits. During the pendency of this writ petition, petitioner has filed I.A.No.1 of 2020 volunteering to pay maintenance at the rate of Rs.7,000/- per month, and we

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are informed that the same is being paid. Now, let us consider the background of the case:

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Mr. Ghrini Namboodiri, father of the petitioner, has instituted complaint No. M.C.C.200/14 under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, praying to cancel a Partition deed No.4448/2019, said to have been executed between the complainant, Mr. N.M. Ghrini Namboodiri (father), his two sons (Mr. N.M.Krishnan and the writ petitioner) and a daughter (Mrs. Shantha). Property divided originally stood in

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the name of the petitioner's mother and the complainant, father. After conciliation, the Maintenance Tribunal and Sub Collector, Thalassery in M.C.C.

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No.200/14 passed an order, Exhibit-P1, dated 8.1.2015, which reads thus:

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“M.C.C 200/14

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Proceedings of the Maintenance Tribunal and Sub-Collector of Thalassery, dated 8.1.15

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(Present Haritha V. Kumar, I. A. S)

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Subject:- Maintenance and Welfare of Parents and Senior Citizens Act, 2007-issuance of order- regarding

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Ref:- Form A application by Sri. N.M. Khrini, s/o (Late) Narayanan Namboodiri

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It was submitted in the application against Sri. N. M. Khrini Namboodiri and his son N. M. Namboodiri, before the Maintenance Tribunal, Thalassery that the partition deed No. 4448 of 2019 may be cancelled as the opposite party acquired the house and the property fraudulently

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and has caused mental harassment.

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Upon the said complaint, forum notice for trial was issued on 8.1.15 to both the parties. The parties had appeared on the said date for trial.

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The petitioner was staying with the opposite party till 5 months before. The ownership of land extending to 31 cents and the house of the petitioner was transferred to the name of the opposite party in 2011. After that, due to mental harassment by the opposite party, the petitioner left the house and started living with his second son. The partition deed was made leaving open the right to the petitioner to live till his death with his son Narayanan.

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The opposite party has agreed to undertake protection and welfare of the petitioner.

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Upon the above said complaint, it was referred for conciliation.

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It was agreed upon by both parties that the petitioner shall stay with his second son, Krishnan and the opposite party, Sri. N. Narayanan Namboodiri shall pay a sum of Rs. 4000/- (four thousand rupees) towards the maintenance of the petitioner, as per conciliation.

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In the above circumstances, as per the trial and conciliation report, it is hereby ordered as follows.

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It is hereby ordered that the petitioner Sri. N. M. Khrini Namboodiri shall be staying with his second son Sri. N. M. Krishnan and the opposite party shall be paying a sum of Rs. 4000/- (four thousand rupees) towards maintenance of the petitioner.

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The above said maintenance amount has to be deposited in the account No. 3220 of Taliparamba Service Co-operative bank, in the name of the petitioner, before 10^th of every month.

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The proceedings of the above complaint is hereby concluded.

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Signature and seal dated 8.1.15

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(Sign)

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Presiding officer

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Maintenance Tribunal and Sub Collector, Thalassery As per order/ Senior Superintendent”

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Though there was a claim for cancellation of the partition deed, the same was not pursued, but the matter was settled for payment of maintenance.

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Thereafter, complainant, father of the petitioner, filed Exhibit-P2 complaint before the District Collector, Kannur, for cancellation of the deed contending, inter alia, that he was forced to sign before the RDO/ Maintenance Tribunal. Exhibit P2 complaint submitted to the District Collector, Kannur, reads thus:

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“From,

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N.M. Ghrini Namboothiri "Shrikrishna" Near Thachambaram U.P. School Thrichambaram, Thaliparamba, PIN- 670141

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To,

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District Collector, Collector Office, Kannur.

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Subject: Complaint dated 12.11.2014 filed against my son N.M. Narayanan Namboothiri.

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Ref: 1. The reply letter no. MCC 200/14 issued by the Hon'ble RDO. 2. The copy of the decision taken by the Hon'ble RDO. 3. Copy of the deed.

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The review harji submitted before Hon'ble District Collector.

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As per the above letter, the Hon'ble RDO had issued order directing my

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son Narayanan Namboothiri to deposit Rs. 4000/- towards my maintenance.

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I was forced to sign before the RDO on the said date due to fear and my previous experience. I was mentally and financially tortured that much.

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I want a home to peacefully reside rather than the said amount. I am now residing with my younger son Krishnan and his wife and children. He does not have any particular job. He cannot do any hard labour due to his physical illness. The house in which I am now residing is a house having two rooms and is in a dilapidated condition. Even for water, the neighbouring houses will have to be relied on. Apart from that, even for the primary needs, I am depending upon the neighbouring houses, during the rainy season. Apart from that, the house owner was told to vacate the house within three months. It is due to the threat from my elder son that my house and property having an extent of 31 cent was transferred to him without giving any of it to my elder daughter and younger son.

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Now I am 80 years old. I cannot do any job nor travel. Where can I go in this situation? There were circumstances where I have prayed that the Hon'ble Collector may kindly cancel the deed and relieve me from this difficult situation. Therefore, I request to give direction to the RDO to review.

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Signature Sd/Ghrini Namboothiri”

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The second complaint made before the District Collector, Kannur, has

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been withdrawn by the complainant/father of the petitioner. Thereafter, the petitioner's father has filed Exhibit-P3 review petition dated 19.09.2015 before

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the Revenue Divisional Officer, Thalassery, which reads thus:

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“Before the Hon'ble Revenue Division Officer, Thalassery

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MCC 200/14 CMP /15

Ghrini Namboothiri: Complainant

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State: Respondent

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The petition submitted by the petitioner in the above number case. The above said MCC 200/14 was filed before your good office and the same was withdrawn on 08.01.2015 and the same was ordered as withdrawn on 08.01.2015. The above said petition was submitted for return of the property transferred in favour of the respondent and to cancel the deed. I, who is an aged person, and a patient, was threatened and out of fear, I was forced to withdraw the petition. My grievance is not redressed even now and I have not received any justice. Therefore, it has become necessary to review the order in MCC 200/14.

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Therefore, I request your goodself to kindly cancel the order allowing withdrawal of the above petition.

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Place: Thrichambaram Date: 19^th September, 2015.”

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Father of the petitioner/complainant filed W.P.(C) No.35538 of 2015,

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seeking a direction to consider and pass orders on Exhibit-P3 review petition

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dated 19.09.2015, and W.P.(C) No.30574 of 2017, seeking for reconsideration of appeal, filed before the District Collector, which was already withdrawn. As

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both the writ petitions arose out of the same subject matter, they were heard together and disposed of by a common judgment dated 02.11.2017 (Exhibit-

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P4). Before the writ court, petitioner has raised a contention that proceedings initiated by the father have been already finalised and Maintenance and

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Welfare of Parents and Senior Citizens Act, 2007, does not provide any power of review on the Tribunal.

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Adverting to the rival contentions, writ court at paragraphs 3 to 5 of the common judgment in W.P.(C) Nos.35538 of 2015 and 30574 of 2017 dated 02.11.2017 (Ext.P4), ordered thus:

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“3. W.P.(C) No.30574/2017 is filed by the petitioner again seeking a reconsideration of the appeal which was already withdrawn. The order at Ext.P6 shows that the appeal was posted on 01.07.2015 at 3 o'clock when the appellant was not present and the respondent sought for time. The case was then adjourned to 22.7.2015 at 3 p.m. On that day the respondent was present with a lawyer and a counter affidavit was also filed. The appellant again was not present but there was an application filed seeking withdrawal of the appeal. In such circumstances, on 30.7.2015 by Ext.P6 the appeal was treated as withdrawn and an order passed to that effect. After more than an year Ext.P7 application has been filed dated 20.8.2016 seeking reconsideration of the appeal.

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The learned counsel for the petitioner submits that, when there was no consideration on merits reconsideration could be made and it would not amount to a review. The learned counsel for the 2^nd respondent asserts the entire case is at the instigation of another son; in whose hands the father is an unsure pawn. The petitioner had first before the Tribunal consented to an order; then filed an appeal and later sought withdrawal of the appeal. The petitioner has been

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inconsistent in his approach and has been blowing hot and cold. This Court is not inclined to direct neither the Tribunal to consider the matter again nor the appellate authority. Especially in the context of the 2 nd respondent-son submitting unequivocally that he is ready to take back his father to the residential house and take care of him. The petitioner however stoutly declines to go with his son and insists for setting aside the document which this Court cannot attempt in the pending proceedings; since there is not even a challenge to the orders passed by the Revenue Divisional Officer or the Appellate Tribunal.

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The learned Counsel especially seeks a reconsideration emphasising the advanced age of the petitioner. This Court cannot but reiterate that before the Tribunal the petitioner is seen to have consented to an order of maintenance and later sought to withdraw from the same after about nine months. An appeal filed was withdrawn; with a request for reconsideration after a year. The petitioner does not have a consistent stand and cannot have the luxury to repeatedly prevaricate. However, considering the submission of the petitioner that the second son is financially unable to look after him; it is only proper that the 2^nd respondent be directed to permit the petitioner to reside in the residential house and also pay the maintenance as ordered by the Tribunal to the petitioner.”

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Thereafter, Exhibit-P6 petition dated 07.07.2018 has been submitted by the petitioner before the District Collector, Kannur, for implementation of the common judgment in W.P.(C) Nos.35538 of 2015 and 30574 of 2017 dated 02.11.2017. Ext.P6 petition reads thus:

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“Taliparamba Date 7/7/18

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From

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Narayanan N.M, Nanmanasseri Illam Kuppam (PO) Taliparamba — 670 502 Ph: 9495616136

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The Hon'ble Collector Kannur

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Sub: Seeking implementation of Judgment dated 02.11.2017 in WP(C) Nos. 35538 of 2015 and 30574 of 2017.

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Respected sir,

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I am the Son of Mr.Ghrini Namboodiri N.M, who was the petitioner in WP(C) Nos.35538 of 2015 and 30574 of 2017, before the Hon'ble High court at Kerala. When those writ petitions had come up for hearing before the Hon'ble High Court of Kerala I had undertaken to take care of my father. I am willing and ready to take care of my father. I have been regularly paying the maintenance amount at 4000/- monthly. My father is presently residing with Mr. N.M. Krishnan, who is my brother. Though I tried to contact my father several times for taking him to my home, due to the interference of my brother and a relative, I am unable to do so. In these circumstances I request your goodself to make necessary arrangements for enabling me to take my father to my house. The address of my father is as following:

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N.M. Grihini Namboodiri, "Sreekrishna" (Nr.) Trichambaram U.P. School Taliparamba — 670 141 Ph: 0460 220 2110

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Thanking you Yours faithfully Sd/Narayanan N.M.”

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When the matter stood thus, Mr. K.P.Narayanan Namboothiri, claiming to be a neighbour of the petitioner's father, has filed HRMP No. 2821/2018, before the Kerala State Human Rights Commission, to secure

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remedy for violation of human rights alleged to have been suffered by the father of the petitioner.

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Exhibit-P8 is the order dated 21.08.2019 passed by the Kerala State Human Rights Commission, and the same reads thus:

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“Kerala State Human Rights Commission Present; P. Mohandas, Hon'ble Member HRMP No.2821/2018 Complainant: K.P.Narayanan Namboothri Respondent: N.M Narayanan Namboothiri Thamanassery Mayyurilam, Kanikunnu, Kupam Post, Thaliparambu, Kannur Order dated 21^st August, 2019

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The petition is being filed by the petitioner, who is the neighbour of the complainant, to receive remedy for the violation of human rights suffered by the complainant.

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A report has been filed by the District Welfare Officer, Kannur. It is stated in the report that the complainant had 2 sons and the complainant had divided 81 cents of land between the two. The respondent was given 31 cents and additionally a house as well. As per the information received from Krishnan Namboothiri, we got to know that the respondent had attained the property from his father by threatening him. As per the conditions in the document given by Krishnan Namboothiri, the respondent is required to pay him Rs 40,000. Instead of 40000, the respondent had paid him 4 Lakhs and the respondent is also paying Mr Krishnan Namboothiri 4,000 Rupees every month as per the order passed by the maintenance tribunal.

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The situation of the Namboothiri mentioned in the complaint is very bad. By considering the financial circumstances of the younger son, the maintenance tribunal had ordered the elder son to pay maintenance. The Hon'ble maintenance tribunal can take into consideration the dispute with respect to the property in the name of his son. If the Namboothiri has to get back the will from the son, then he will have to take the necessary steps through the Maintenance tribunal. The RDO is requested to enquire whether the will/document in the name of the son can be quashed. A copy of the order and the complaint has to be sent to the RDO, Kannur. A copy of the order also has to be sent to the Welfare officer and the complainant. The complaint is disposed of stating that the RDO must conduct the necessary investigation and legal action must be taken within 4 months.

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P.Mohandas Member Kerala State Human Rights Commission Sd/Registrar”

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Based on the above order in HRMP. No. 2821 of 2018 dated

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21.08.2019 passed by the Kerala State Human Rights Commission, Exhibit-P9

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complaint has been filed by Mr. K.P. Narayanan Namboodiri, neighbour of the

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father of the petitioner, before the Revenue Divisional Officer, Taliparamaba,

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and the same reads thus:

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“Thachambaram 09.10.2019

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Before the Hon'ble Revenue Divisional Officer, Taliparamba

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I had filed a complaint before the Human Rights stating the fact that an 80 year old Namboothiri who is not able to avail his basic necessities like water and Bathroom was staying in a rented house

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next to mine. I hereby request to kindly take necessary steps at the earliest so that Namboothiri can regain his house and 31 cents of land from his elder son. I hereby submit the human rights report along with this request.

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K.P.Narayanan Namboothiri 9446262654 "KannedathPayanodu" Near: Thachambaram U.P. School Taliparambu- 670 141.”

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Taking cognizance of Exhibit-P9 complaint, Maintenance Tribunal,

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Thalassery, issued Exhibit-P10 notice to the petitioner, which reads thus:

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“FORM-C

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(See Rule 6 and 3)

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Notice to be produced before the Hon'ble Maintenance Tribunal under Maintenance and Welfare of Parents and Senior Citizens Act, 2007

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To,

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Sri.N.N.Narayanan Namboothiri Namannaseri Mayuram Ilam, Kanikunnu, Kripam(P.O), Taliparamba.

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As per the request submitted by Sri K.P. Narayanan Namboothiri, Kanooth, you are hereby required to show cause within 15 days of the receipt of this notice as to why the above request is not been allowed.

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You are required to appear before the revenue divisional officer at 11 a.m on 05/12/2019.

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Dated 25/11/2019

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Authorised Representative Maintenance Tribunal”

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Exhibit-P11 reply dated 07.12.2019 submitted by the petitioner

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before the RDO, Taliparamba is reproduced hereunder:

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“Date: 07.12.2019

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From, Narayanan N.M. Nanmanasseri Illam Kuppam(PO) Taliparamba- 670 502 Ph: 9495616136

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To,

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The Hon'ble RDO Taliparamba

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Sir,

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Sub: Reply for notice No. 110/19.

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It is informed that the allegations raised by the complainant in the reply sent by the RDO on 04.12.2019 are against the facts and against the law.

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An order dated 08.01.2015 was given by the RDO with regard to the complaint filed by my father before the Thalassery RDO in January 2015.Apart from MCC 200/14, Appeal No. M5/2015/21622/15 was given before the Hon'ble Kannur Collector who questioned the said order, which was dismissed and later against him, against Thalassery RDO (W.P(C) No. 30574), against Kannur Collector (W.P(C) No. 35538) with respect to which the Hon'ble Kerala High Court was approached, was dismissed.

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Therefore, with regard to the same complaint, since it is illegal to approach the RDO and requesting him to consider the above complaint, I have been legally advised no to attend the hearing dated 19.12.2019. hence, it is humbly submitted that I shall not be attending the same.

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Faithfully, Narayanan N.M.”

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Being aggrieved by the order of Kerala State Human Rights Commission in HRMP.No.2821 of 2018 dated 21.8.2019 (Exhibit-P8), complaint of the neighbour of the petitioner's father, 2^nd respondent, dated 09.10.2019 (Exhibit-P9), and the notice dated 25.11.2019 issued by the Maintenance Tribunal (Exhibit-P10), instant writ petition is filed for the reliefs, stated supra.

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Inviting our attention to Exhibit-P1 order passed by the Maintenance Tribunal dated 8.1.2015, by which, the complaint preferred by father of the petitioner was closed, withdrawal of appeal before the Collector, Exhibit-P4 common order passed by the writ court in W.P.(C) Nos.35538 of 2015 and 30574 of 2017 dated 02.11.2017, and the decisions in Kalabharati Advertising v. Hemant Vimalnath Narichania reported in (2010) 9 SCC 437, Union of India v. Upendra Singh reported in (1994) 3 SCC 357, East India Company v. Collector Customs (AIR 1962 SC 1893), Kum. Aruna A., learned counsel for the petitioner, contended that the impugned proceedings viz., Exhibits-P8 to P10, lack jurisdiction and that, Mr. K.P. Narayanan Namboothiri, Taliparamba, the 2^nd respondent, neighbour, has no locus standi to institute any further proceedings, on behalf of the father of the

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petitioner, under Section 23 of Act, 2007.

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Mr. T.H. Aravind, learned counsel for the 2^nd respondent, made submissions, to sustain Exhibits-P8 to P10.

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Heard the learned counsel for the parties and perused the material available on record.

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Issues, which require to be considered in this case are,(i) Whether the Kerala State Human Rights Commission has jurisdiction to entertain a complaint as regards violation of human rights by a person other than a public servant; (ii) Whether the 2^nd respondent, neighbour of the petitioner, has locus standi to prefer any complaint to the Maintenance Tribunal under Section 23 of the Act; (iii) Whether Kerala State Human Rights Commission, has erred in ordering Exhibit-P8 complaint preferred by the 2^nd respondent, to be enquired into by the RDO; and (iv) Whether the Maintenance Tribunal has jurisdiction to take cognizance of any complaint, preferred by the 2^nd respondent. Let us have a cursory look at the statutory provisions.

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Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is an Act to provide more effective provisions for the maintenance and welfare

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of parents and senior citizens guaranteed and recognized under the Constitution and for matters connected therewith or incidental thereto.

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Scheme of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is explained in the judgment in Janardhanan and

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Another v. Maintenance Tribunal Appellate Authority & District

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Collector, Pathanamthitta and Others reported in 2017 (4) KLT 454. Section 2(b) of the Act includes, provision for food, clothing, residence & medical attendance, and treatment. The concept of maintenance is considered in Sheeja S. v. Maintenance Appellate Tribunal/District Collector, Trivandrum and Others reported in 2018 (4) KLT 1127.

¶202

Chapter II deals with maintenance of parents and senior citizens. Sections 4 and 5 under Chapter II of Act, 2007 read thus:

¶203

“ 4. Maintenance of parents and senior citizens.

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(1) A senior citizen including parent who is unable to maintain himself from his own earning or out of the property owned by him, shall be entitled to make an application under section 5 in case of-

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(i) parent or grand-parent, against one or more of his children not being a minor;

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(ii) a childless senior citizen, against such of his relative referred to in clause (g) of section 2.

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(2) The obligation of the children or relative as the case may be, to maintain a senior citizen extends to the needs of such citizen so that senior citizen may lead a normal life.

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(3) The obligation of the children to maintain his or her parent extends to the needs of such parent either father or mother or both, as the case may be, so that such parent may lead a normal life. (4) Any person being a relative of a senior citizen and having sufficient means shall maintain such senior citizen provided he is in possession of the property of such senior citizen or he would inherit the property of such senior citizen: Provided that where more than one relatives are entitled to inherit the property of a senior citizen, the maintenance shall be payable by such relative in the proportion in which they would inherit his property.

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“ 5 Application for maintenance.

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(1) An application for maintenance under section 4, may be made

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(a) by a senior citizen or a parent, as the case may be; or

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(b) if he is incapable, by any other person or organisation authorised by him; or

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(c) the Tribunal may take cognizance suo motu. Explanation. For the purposes of this section organisation means any voluntary association registered under the Societies Registration Act, 1860 (21 of 1860), or any other law for the time being in force.

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(2) The Tribunal may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this section, order such children or relative to make a monthly allowance for the

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interim maintenance of such senior citizen including parent and to pay the same to such senior citizen including parent as the Tribunal may from time to time direct.

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(3) On receipt of an application for maintenance under sub-section (1), after giving notice of the application to the children or relative and after giving the parties an opportunity of being heard, hold an inquiry for determining the amount of maintenance.

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(4) An application filed under sub-section (2) for the monthly allowance for the maintenance and expenses for proceeding shall be disposed of within ninety days from the date of the service of notice of the application to such person: Provided that the Tribunal may extend the said period, once for a maximum period of thirty days in exceptional circumstances for reasons to be recorded in writing.

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(5) An application for maintenance under sub-section (1) may be filed against one or more persons: Provided that such children or relative may implead the other person liable to maintain parent in the application for maintenance.

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(6) Where a maintenance order was made against more than one person, the death of one of them does not affect the liability of others to continue paying maintenance.

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(7) Any such allowance for the maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or expenses of proceeding, as the case may be.

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(8) If, children or relative so ordered fail, without sufficient cause to comply with the order, any such Tribunal may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person for the whole, or any part of each month's allowance for the maintenance and expenses of proceeding, as the case be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made whichever is earlier:

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Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Tribunal to levy such amount within a period of three months from the date on which it became due.

¶229

25. Section 9 of the Act, 2007, reads thus:

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“ 9. Order for maintenance .

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(1) If children or relatives, as the case may be, neglect or refuse to maintain a senior citizen being unable to maintain himself, the Tribunal may, on being satisfied of such neglect or refusal, order such children or relatives to make a monthly allowance at such monthly rate for the maintenance of such senior citizen, as the Tribunal may deem fit and to pay the same to such senior citizen as the Tribunal may, from time to time, direct.

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(2) The maximum maintenance allowance which may be ordered by such Tribunal shall be such as may be prescribed by the State Government which shall not exceed ten thousand rupees per month.”

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Section 16 of the Maintenance and Welfare of Parents and Senior

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Citizens Act, which deals with appeals, reads thus:

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“ 16. Appeals .

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(1) Any senior citizen or a parent, as the case may be, aggrieved by an order of a Tribunal may, within sixty days from the date of the order, prefer an appeal to the Appellate Tribunal:

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Provided that on appeal, the children or relative who is required to pay any amount in terms of such maintenance order shall continue to pay to such parent the amount so ordered, in the manner directed by the Appellate Tribunal:

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Provided further that the Appellate Tribunal may, entertain the appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

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(2) On receipt of an appeal, the Appellate Tribunal shall, cause a notice to be served upon the respondent.

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(3) The Appellate Tribunal may call for the record of proceedings from the Tribunal against whose order the appeal is preferred.

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(4) The Appellate Tribunal may, after examining the appeal and the records called for either allow or reject the appeal.

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(5) The Appellate Tribunal shall, adjudicate and decide upon the appeal filed against the order of the Tribunal and the order of the Appellate Tribunal shall be final: Provided that no appeal shall be rejected unless an opportunity has been given to both the parties of being heard in person or through a duly authorised representative.

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(6) The Appellate Tribunal shall make an endeavour to pronounce its

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order in writing within one month of the receipt of an appeal.

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(7) A copy of every order made under sub-section (5) shall be sent to both the parties free of cost.”

¶250

As per Section 4 of Act, 2007, a senior citizen, including a parent,

¶251

who is unable to maintain himself from his own earning or out of the property owned by him, shall be entitled to make an application under the Act. As per

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Section 5(1) of the Act, 2007, an application for maintenance under Section 4, may be made,-

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(a) by a senior citizen or a parent, as the case may be; or

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(b) if he is incapable, by any other person or organisation authorised by him; or

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¶256

In the case on hand, the father of the petitioner did not make an

¶257

application under Section 4 r/w. Section 5 of the Act for maintenance. But, filed an application under Section 23 of the Act, for cancelling the Partition Deed No.4448/2019, in which the Maintenance Tribunal vide Exhibit-P1 order dated 8.1.2015 granted maintenance. Thus, the father of the petitioner had already exercised his option to pursue his remedy under Section 23 of the Act. His request (Exhibit-P2) dated 'Nil' to reconsider the appeal, filed before the

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District Collector, Kannur, and the review petition (Exhibit-P3) dated

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19.09.2015 has ended in a finding, in Exhibit-P4 common judgment in W.P.(C) Nos.35538 of 2015 and 30574 of 2017 dated 02.11.2017, holding that the same is not legally tenable, as there is no power of review, conferred on the Maintenance Tribunal. Thus, the entire proceedings inter se the father of the petitioner and the petitioner has reached finality, insofar as Section 23 of the Act is concerned.

¶262

While that be the position, the question is whether a person/2^nd respondent, claiming himself to be a neighbour, can institute fresh proceedings, on the very same subject matter, under the guise of violation of human rights and lodge a petition before the Kerala State Human Rights Commission. Though Exhibit-P9 complaint dated 09.10.2019 preferred by the 2^nd respondent/neighbour, numbered as HRMP. No.2821 of 2018, reads that the petition was to receive remedy for violation of human rights suffered by the father of the petitioner, the issue considered by the Kerala State Human Rights Commission only relates to cancellation of Partition deed No.4448 of 2019 executed between the father of the writ petitioner and other sharers.

¶263

After referring to the property in dispute, Kerala State Human Rights Commission in Exhibit-P8 order dated 21.08.2019 in HRMP.No.2821/2018

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ordered thus:

“.........if the Namboothri has to get back the Will from his son, then he will have to take the necessary steps through the Maintenance Tribunal. The RDO is requested to enquire whether the Will/document in the name of the son can be quashed. A copy of the order and the complaint has to be sent to the RDO, Kannur. A copy of the order has to be sent to the Welfare Officer and the complainant. The complaint is disposed of stating that the RDO must conduct the necessary investigation and legal action must be taken within 4 months.”

¶268

Perusal of the above said order shows that Kerala State Human Rights Commission has categorically observed that to get back the document, it is the father, who has to take steps in the Maintenance Tribunal. Having said so, whether Kerala State Human Rights Commission was right in directing the complaint to be forwarded to the Revenue Divisional Officer, Kannur, with a further direction to the RDO, to enquire as to whether, the document can be quashed. Based on the directions issued by the Commission, the 2^nd respondent has preferred Ext.P9 complaint before the Maintenance Tribunal.

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With reference to the provisions of the Protection of Human Rights Act, 1993, “Human Rights” as per Section 2(d) of the Act means, the rights relating to life, liberty, equality and dignity of the individual guaranteed by the

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Constitution or embodied in the International Covenants and enforceable by courts in India. Chapter III of the Act, 1993 deals with functions and powers

¶273

of the Commission. Functions of the Commission, as per Section 12 of the Act are as under:

¶274

“The Commission shall perform all or any of the following functions, namely:-

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(a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf [or on a direction or order of any court, into complaint of,-

¶276

(i) violation of human rights or abetment thereof; or

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(ii) negligence in the prevention of such violation, by a public servant;

¶278

(b) intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court;

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(c) visit, notwithstanding anything contained in any other law for the time being in force, any jail or other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection, for the study of the living conditions of the inmates thereof and make recommendations thereon to the Government;

¶280

(d) review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation;

¶281

(e) review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures;

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(f) study treaties and other international instruments on human rights and make recommendations for their effective implementation;

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(g) undertake and promote research in the field of human rights;

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(h) spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means;

¶287

(i) encourage the efforts of non-governmental organisations and institutions working in the field of human rights;

¶288

(j) such other functions as it may consider necessary for the protection of human rights.”

¶289

Chapter IV of the Act deals with the procedure for inquiry into the

¶290

complaints and as per Section 17 of the Act, the Commission while inquiring into the complaints of violations of human rights may–

¶291

“(i) call for information or report from the Central Government or any State Government or any other authority or organisation subordinate thereto within such time as may be specified by it:-

¶292

Provided that–

¶293

(a) if the information or report is not received within the time stipulated by the Commission, it may proceed to inquire into the complaint on its own;

¶294

(b) if, on receipt of information or report, the Commission is satisfied either that no further inquiry is required or that the required action has been initiated or taken by the concerned Government or authority, it may not proceed with the complaint and inform the complainant accordingly;

¶295

(ii) without prejudice to anything contained in clause (i), if it considers necessary, having regard to the nature of the complaint, initiate an inquiry.”

¶296

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Section 18 of the Protection of Human Rights Act, 1993, speaks

¶299

about the steps to be taken by the Commission after inquiry. Section 18(1) of the Act, reads thus:

¶300

“ 18. Steps after inquiry : The Commission may take any of the following steps upon the completion of an inquiry held under this Act, namely:-

¶301

(1) whether the inquiry discloses, the commission of violation of human rights or negligence in the prevention of violation of human rights by a public public servant, it may recommend to the concerned Government on authority the initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person or persons.”

¶302

As per 2(m) of the Protection of Human Rights Act, 1993, “Public

¶303

servant” shall have the meaning assigned to it in Section 21 of the Indian Penal Code, 1860. Section 21 of the IPC reads thus:

¶304

“ 21. “Public servant” .—The words “public servant” denote a person falling under any of the descriptions hereinafter following; namely:—

¶305

[***]

¶306

Second—Every Commissioned Officer in the Military, Naval or Air Forces [***] of India;

¶307

Third—Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;

¶308

Fourth—Every officer of a Court of Justice (including a liquidator,

¶309

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receiver or commissioner) whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorized by a Court of Justice to perform any of such duties;

¶312

Fifth—Every juryman, assessor, or member of a panchayat assisting a Court of Justice or public servant;

¶313

Sixth—Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority;

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Seventh—Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

¶315

Eighth—Every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

¶316

Ninth — Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government [***];

¶317

Tenth — Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;

¶318

Eleventh—Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an

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electoral roll or to conduct an election or part of an election; (Twelfth) —Every person—

¶322

(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;

¶323

(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956).

¶324

Illustration

¶325

A Municipal Commissioner is a public servant.

¶326

Explanation 1.—Persons falling under any of the above descriptions are public servants, whether appointed by the Government or not.

¶327

Explanation 2.—Wherever the words “public servant” occur, they shall be understood by every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.

¶328

Explanation 3.—The word “election” denotes an election for the purpose of selecting members of any legislative, municipal or other public authority, of whatever character, the method of selection to which is by, or under, any law prescribed as by election.”

¶329

In exercise of the powers conferred by sub-section (2) of Section 10

¶330

of the Protection of Human Rights Act, 1993 (Act 10 of 1994), the National

¶331

Human Rights Commission has framed the National Human Rights Commission

¶332

(Procedure) Regulations, 1994. Regulation 8 speaks about the procedure for dealing with complaints and Regulation 8(1), which is relevant, reads thus:

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“(1) All complaints in whatever form received by the Commission, shall be registered and assigned a number and placed for admission as per the special or general directions of the Chairperson before a Single-Member Bench constituted for the purpose, not later than one week of receipt thereof. If the Single-Member Bench dealing with the case, either for admission or for final disposal, having regard to the importance of the issues involved, is of the opinion that the case should be heard by a Bench of not less than two Members, he/she may refer the case to a Bench of two Members. On receipt of the reference, the case shall be assigned to a Bench of two or more Members, as may be constituted by the Chairperson. Ordinarily, complaints of the following nature are not entertainable by the Commission:-

¶336

(a) in regard to events which happened more than one year before the making of complaints;

¶337

(b) with regard to matters which are sub-judice;

¶338

¶339

(d) which are of frivolous nature; or

¶340

(e) those who are outside the purview of the Commission.”

¶341

In exercise of the powers conferred by sub-section (2) of Section 10

¶342

of the Protection of Human Rights Act, 1993, the National Human Rights Commission has made the regulations further to amend the National Human Rights Commission (Procedure) Regulations, 1994. As per Section 2(c) of the amended Regulations, “complaint'” means all petitions / communications

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¶345

received in the Commission from a victim or any other person on his behalf, in

¶346

person, by post, by telegram, by fax, or by any other means whatsoever, alleging violation or abetment thereof or negligence in the prevention of such

¶347

violation, by a public servant , of all or any of the human rights defined in Section 2(d) of the Act.

¶348

Regulation 9 speaks about complaints not ordinarily entertainable

¶349

and the same reads thus:

¶350

“ 9. Complaints not ordinarily entertainable. - The Commission may dismiss in limine complaints of the following nature:-

¶351

(i) illegible;

¶352

(ii) vague, anonymous or pseudonymous;

¶353

(iii) trivial or frivolous;

¶354

(iv) barred under section 36(1) of the Act;

¶355

(v) barred under section 36(2) of the Act;

¶356

(vi) allegation is not against any public servant;

¶357

(vii) the issue raised relates to civil dispute, such as property rights, contractual obligations and the like;

¶358

(viii) the issue raised relates to service matters;

¶359

(ix) the issue raised relates to labour/industrial disputes;

¶360

(x) allegations do not make out any specific violation of human rights;

¶361

(xi) matter is sub-judice before a Court/Tribunal;

¶362

(xii) matter is covered by a judicial verdict/decision of the Commission.

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(xiii) where it is only a copy of the complaint addressed to some other authority;

¶366

(xiv) the matter is outside the purview of the Commission on any other ground.”

¶367

Form I is the scrutiny report prescribed under Regulation 12 to be

¶368

submitted by the Assistant Registrar and the same reads thus:

¶369

“FORM NO.1

¶370

(See regulation 12)

¶371

NATIONAL HUMAN RIGHTS COMMISSION

¶372

(Law Division)

¶373

Case No.....................

¶374

(To be given after registration)

CLASSIFICATION:

Code:

SCRUTINY REPORT

Diary No...................................../NHRC

¶379

Name of the complaint

¶380

Is it a public interest complaint

¶381

Date of cause of action/incident

¶382

The State and District to which the incident relates *

¶383

Whether the complaint is directly addressed to the Commission:

¶384

¶385

Whether only a copy thereof is endorsed to the Commission

¶386

In case of suo motu action the source of information; viz.-

¶387

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¶389

(a) news items; or

¶390

(b) other source (Give brief particulars):

¶391

Name, designation and address of the public servant by whom alleged violation of human right was committed/abetted or who was negligent in prevention of such alleged violation: (i) (ii) (iii) (Note.- If the complaint relates to Armed Forces, here specifically indicate the Ministry/Department of the Central Government under which such Armed Forces come).

¶392

Name, designation and address of the authority from whom information/ report may be called for: (i) (ii) (Note.- In case of Armed Forces, (Naval, Military and Air Force) coming under Defence Ministry information be called from the Secretary of that Ministry and in case of other Armed Forces of the Union, (from the Secretary or Home Ministry).

¶393

Gist of the complaint/suo motu action (here give brief account

¶394

of the matters referred to in the complaint/suo motu action):

¶395

Is there any complaint/action pending /disposed of on the same subject matter/incident: (If yes, give case number and other relevant information and append the record of such case)

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Relief, if any, sought:

¶399

......................... (Signature) ASSISTANT REGISTRAR Date..................

¶400

Note.-1. If there are more than one complainant, give only the name of the first complainant.

¶401

If the information in regard to any column is not available, put “N.A.” against that column.

¶402

Information in regard to column 11 shall be ascertained from the computer.”

¶403

In exercise of the powers conferred by Section 10(2) of the Protection of Human Rights Act, 1993 (Central Act 10 of 1994), the Kerala State Human Rights Commission has framed the Kerala State Human Rights Commission (Procedure) Regulations, 2001. As per Regulation 2(e), “Complaint” means all petitions or communications received by the commission from a victim or any other person on his behalf in person or by post or by telegram or by fax or by any other means whatsoever alleging violation of human rights or abetment thereof or negligence in the prevention of such violation by a public servant of all or any of the human rights defined in clause (d) of sub-section (1) of Section 2 read with sub-section (5) of Section 21 of the Act.

¶404

Regulation 16 of Regulations, 2001, deals with the nature of complaints and it reads thus:

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“(i) Every complaint should disclose a complete picture of the matter complained of and disclose the name and address of the respondent. The commission may, if it considers necessary,-

¶408

(a) call for further relevant information from the complaint;

¶409

(b) direct the complainant to file affidavit/s in support of the complaint;

¶410

¶411

(d) take statement of the complainant by issuing Commission for that purpose or by any other means considered necessary.

¶412

(ii) No fee shall be chargeable on complaints/interlocutory applications.”

¶413

Regulation 17 states that Commission may dismiss inlimine

¶414

complaints of the following nature:

¶415

(a) Illegible;

¶416

(b) vague, anonymous or pseudonymous;

¶417

¶418

(d) barred under sub-section (1) or (2) of section 36 of the Act;

¶419

(e) allegations do not disclose involvement of any public servant;

¶420

(f) issue raised relates to civil disputes, service matters, labour or

¶421

industrial dispute;

¶422

(g) allegations do not raise any violation of human rights;

¶423

(h) if the matter raised is subjudice before the Court or Tribunal;

¶424

(i) the matter is covered by a Judicial verdict/decision of the

¶425

National Commission or a State Commission;

¶426

(j) Where the complaint is only a copy of the petition addressed to

¶427

some other authority;

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¶430

(k) Where the petition is not signed or where the original petition is not sent to the Commission;

¶431

(l) Where the matter raised is outside the purview of the

¶432

Commission or on any other ground.

¶433

Similarly, Appendix, Form No.1, of the Kerala State Human Rights

¶434

Commission (Procedure) Regulations, 2001, is extracted hereunder:

¶435

“APPENDIX 1

¶436

FORM No.1

¶437

KERALA STATE HUMAN RIGHTS COMMISSION

¶438

(Law Division)

¶439

(See Regulation 24)

¶440

H.R.M.P. No.............

¶441

Brief Particulars of Complaint/Petition

¶442

Name of the Complaint :

¶443

Whether a public interest complaint : or not

¶444

Date of cause of action/incident :

¶445

The District in which the incident : occurred

¶446

Whether the complaint is directly : addressed or copy enclosed

¶447

Source of information in case of suo motu action (from newspaper or other media)

¶448

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Name, designation and address of the : public servant who is alleged to have committed/abetted or to have been negligent in the prevention of such violation. 8. Name, designation and address of the authority from whom information / report may be called. (i) (ii) 9. Gist of the complaint/Suo motu action : (here given brief account of the matters referred to in the complaint / Suo motu action) 10 Is there any complaint / action : pending / disposed of on the same subject matter / incident (if there is the case No. & other irrelevant information and append the record of such cases) 11 Relief, if any, sought : 12 Whether the complaint is : (i) illegible (ii) Anonymous or Pseudonymous (iii) Barred under Section 36(i) and / or section 36(2) of the Act. (iv) Not against a public servant. (v) Solely in respect of a matter already covered by a judicial verdict / decision of the National Commission or the State Commission. (vi) A copy of a petition addressed to some other authority:

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Column No.8 of Form No.1, prescribed under the National Human Rights Commission (Procedure) Regulations, 1994 and Column No.7 of the Kerala State Human Rights Commission (Procedure) Regulations, 2001 dealing with public servants are as hereunder:

¶454

Column No.8	Column No.7
Name, designation and address of the public servant by whom alleged violation of human right was committed/abetted or who was negligent in prevention of such alleged violation: (i) (ii) (iii)	Name, designation and address of the public servant who is alleged to have committed/abetted or to have been negligent in the prevention of such violation.
(Note.- If the complaint relates to
Armed Forces, here specifically indicate the Ministry/Department of the Central Government under which such Armed Forces come).

¶455

Similarly, Column No.9 of Form No.1, prescribed under the National

¶456

Human Rights Commission (Procedure) Regulations, 1994 and Column No.8 of

¶457

the Kerala State Human Rights Commission (Procedure) Regulations, 2001,

¶458

which state about the authorities from whom the information / report may be

¶459

called for are reproduced:

¶460

Column No.9	Column No.8
Name, designation and address of the authority from whom information	Name, designation and address of the authority from whom
/ report may be called for: (i)	information / report may be called.

¶461

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(ii) (Note.- In case of Armed Forces, (i) (Naval, Military and Air Force) (ii) coming under Defence Ministry information be called from the Secretary of that Ministry and in case of other Armed Forces of the Union, (from the Secretary or Home Ministry).

¶464

Section 29 of the Protection of Human Rights Act, 1993, speaks

¶465

about application of certain provisions relating to National Human Rights

¶466

Commission to State Commissions and the same reads thus:

¶467

“The provisions of sections 9, 10, 12, 13, 14, 15, 16, 17 and 18 shall apply to a State Commission and shall have effect, subject to the following modifications, namely:-

¶468

(a) references to "Commission" shall be construed as references to "State Commission";

¶469

(b) in section 10, in sub-section (3), for the word "Secretary General", the word "Secretary" shall be substituted;

¶470

¶471

(d) in section 17, in clause (i), the words "Central Government or any" shall be omitted;

¶472

First of all, reading of the Exhibit-P8 order in HRMP No.2821/2018

¶473

dated 21.08.2019 passed by the Kerala State Human Rights Commission does

¶474

not indicate any human rights violation as defined in Section 2(d) of the

¶475

Protection of Human Rights Act, 1993. Secondly, it does not indicate that the

¶476

complaint made by the neighbour of the petitioner's father was on his behalf,

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and thirdly, the complaint is in the nature of a civil dispute relating to a property divided between the father of the petitioner and other sharers. Scrutiny of the provisions of the Protection of Human Rights Act, 1993, National Human Rights Commission (Procedure) Regulations, 1994 and Kerala State Human Rights commission (Procedure) Regulations, 2001, makes it clear that Protection of Human Rights Act, 1993 deals with violation of human rights or negligence in the prevention of violation of human rights, by a public servant, and the Commission, after inquiry, may recommend to the concerned Government or authority, for initiation of prosecution or such other action as the Chairman may deem fit against the concerned person or persons.

¶480

Reading of Exhibit-P8 order does not indicate that the petitioner is a public servant and in discharge of his duties as public servant, he has violated human rights or negligent in preventing violation of human rights. When Section 2(d) of the Act defines what “human rights” means, there is a specific exclusion in Regulations 9(vi) and (vii) of the National Human Rights Commission (Procedure) Regulations, 1994 and Regulations 17(e) and (f) of the Kerala State Human Rights Commission (Procedure) Regulations, 2001, excluding the jurisdiction of the Commission to entertain a complaint relating

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to the issues raised in civil disputes.

¶484

The words “civil disputes”, occurring in Regulation 17(f) of the Kerala State Human Rights Commission (Procedure) Regulations, 2001, have not been defined. To understand the word “Civil” it is worthwhile to consider a decision of the Hon’ble Supreme Court in Most. Rev. P.M.A. Metropolitan and Ors. v. Moran Mar Marthoma and Ors. [1995 Supp (4) SCC 286], wherein the Hon’ble Supreme Court, considered the words “civil”, “civil nature” and “civil proceeding” as under:

¶485

“29………………….The word ‘civil’ according to the dictionary means “relating to the citizen as an individual civil rights”. In Black's Law Dictionary it is defined as “relating to private rights and remedies sought by civil actions as contrasted with criminal proceedings”. In law it is understood as an antonym of criminal. Historically the two broad classifications were civil and criminal. Revenue, tax and company etc. were added to it later. But they too pertain to the larger family of ‘civil’. There is thus no doubt about the width of the word ‘civil’. Its width has been stretched further by using the word ‘nature’ along with it. That is even those suits are cognizable which are not only civil but are even of civil nature. In Article 133 of the Constitution an appeal lies to this Court against any judgment, decree or order in a “civil proceeding”.

¶486

This expression came up for construction in S.A.L.Narayan Row v. Ishwarlal Bhagwandas [AIR 1965 SC 1818]. The Constitution Bench held “a proceedings for relief against infringement of civil right of a person is a civil proceedings”. In Arbind Kumar Singh v. Nand Kishore Prasad [AIR 1968 SC 1227] it was held, “to

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¶489

extend to all proceedings which directly affect civil rights”. The dictionary meaning of the word ‘proceedings’ is “the institution of a legal action, any step taken in a legal action”. In Black's Law Dictionary it is explained as:

¶490

“In a general sense, the form and manner of conducting juridical business before a court or judicial officer. Regular and orderly progress in form of Jaw, including all possible steps in an action from its commencement to the execution of judgment. Term also refers to administrative proceedings before agencies, tribunals, bureaus or the like.”

¶491

The word ‘nature’ has been defined as “the fundamental qualities of a person or thing; identity or essential character; sort; kind; character”. It is thus wider in content. The word ‘civil nature’ is wider than the word “civil proceeding”. The section would, therefore, be available in every case where the dispute has the characteristic of affecting one's rights which are not only civil but of civil nature.

¶492

30…………………Therefore, it was visualised from the inception that a suit in which the right to property or religious office was involved, it would be a suit of civil nature………………………” [Emphasis supplied]

¶493

On the aspect of jurisdiction, jurisdictional fact/jurisdictional error, it

¶494

is worthwhile to consider a few decisions.

¶495

(i) In Ujjam Bai v. State of Uttar Pradesh [AIR 1962 SC 1621], the Hon'ble Supreme Court held as under:

¶496

“19………………………..Jurisdiction means authority to decide. Whenever a judicial or quasi-judicial tribunal is empowered or required to enquire into a question of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally or on an application for certiorari

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but are binding until reversed on appeal. Where a quasijudicial authority has jurisdiction to decide a matter, it does not lose its jurisdiction by coming to a wrong conclusion whether it is wrong in law or in fact. The question, whether a tribunal has jurisdiction depends not on the truth or falsehood of the facts into which it has to enquire, or upon the correctness of its findings on these facts, but upon their nature, and it is determinable "at the commencement, not at the conclusion, of the inquiry'. (Rex v. Bolten [1841] I Q.B. 66. Thus, a tribunal empowered to determine claims for compensation for loss of office has jurisdiction to determine all questions of law and fact relating to the measure of compensation and the tenure of the office, and it does not exceed its jurisdiction by determine any of those questions incorrectly but it has no jurisdiction to entertain a claim for reinstatement or damages for wrongful dismissal, and it will exceed its jurisdiction if it makes an order in such terms, for it has no legal power to give any decision whatsoever on those matters.

¶500

A tribunal may lack jurisdiction if it is improperly constituted, or if it fails to observe certain essential preliminaries to the inquiry. But it does not exceed its jurisdiction by basing its decision upon an incorrect determination of any question that it is empowered or required (i.e.) had jurisdiction to determine.

¶501

The strength of this theory of jurisdiction lies in its logical consistency. But there are other cases where Parliament when it empowers an inferior tribunal to enquire into certain facts intend to demarcate two areas of enquiry, the tribunal's findings within one area being conclusive and with in the other area impeachable. "The jurisdiction of an inferior tribunal may depend upon the fulfilment of some condition precedent or upon the existence of some particular fact. Such a fact is collateral to the actual matter which the tribunal has to try and the determination whether it exists or not is logically prior to the determination of the actual question which the tribunal has to try. The tribunal must itself decide

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as to the collateral fact when, at the inception of an inquiry by a tribunal of limited jurisdiction, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether it will act or not, and for that purpose to arrive at some decision on whether it has jurisdiction or not. There may be tribunals which, by virtue of legislation constitution them, have the power to determine finally the preliminary facts on which the further exercise of their jurisdiction depends; but, subject to that an inferior tribunal cannot, by a wrong decision with regard to a collateral fact, give itself a jurisdiction which it would not otherwise possess." (Halsbury's Laws of England, 3^rd Edn. Vol. 11 page 59).

¶505

The characteristic attribute of judicial act or decision is that it binds, whether it be right or wrong. An error of law or fact committed by a judicial or quasi-judicial body cannot, in general, be impeached otherwise than on appeal unless the erroneous determination relates to a matter on which the jurisdiction of that body depends. These principles govern not only the findings of inferior courts stricto sensu but also the findings of administrative bodies which are held to be acting in a judicial capacity. Such bodies are deemed to have been invested with power to err within the limits of their jurisdiction; and provided that they keep within those limits, their decisions must be accepted as valid unless set aside on appeal…………”

¶506

(ii) In Anisminic Ltd. v. The Foreign Compensation Commissioner, (1969) 1 All ER 208, Lord Reid at pages 213 and 214 of the Report stated as under:

¶507

"It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the words "jurisdiction has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the enquiry in question. But there are many cases where, although the

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¶510

tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in had faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to if for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly."

¶511

(iii) In Union of India v. Tarachand Gupta and Brothers, [(1971) 1 SCC 486], the Hon'ble Supreme Court, at paragraph 22, held thus:-

¶512

"22. ....The word "jurisdiction" has both a narrow and a wider meaning. In the sense of the former, it means the authority to embark upon an enquiry; in the sense of the latter it is used in several aspects, one of such aspects being that the decision of the tribunal is in non-compliance with the provisions of the Act. Accordingly, a determination by a tribunal of a question other than the one which the statute directs it to decide would be a decision not under the provisions of the Act, and therefore, in excess of its jurisdiction."

¶513

(iv) In Shri. M.L. Sethi v. Shri R.P. Kapur, reported in (1972) 2 SCC 427, the Hon'ble Supreme Court at paragraph 12, held thus:-

¶514

"12. ...The "jurisdiction" is a verbal coat of many colours. Jurisdiction originally seems to have had the meaning which Lord Reid ascribed to it in Anisminic Ltd. v. Foreign

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¶517

Compensation Commission, namely, the entitlement "to enter upon the enquiry in question". If there was an entitlement to enter upon an enquiry into the question, then any subsequent error could only be regarded as an error within the jurisdiction. The best known formulation of this theory is that made by Lord Denean in R. v. Bolton. He said that the question of jurisdiction is determinable at the commencement, not at the conclusion of the enquiry. In Anisminic Ltd. case (supra), Lord Reid said:

¶518

"But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive."

¶519

In the same case, Lord Pearce said:

¶520

"Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an enquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or, in the intervening stage while engaged on a proper enquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would

¶521

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¶522

-:51:-

¶523

turn its inquiry into something not directed by Parliament and fail to make the inquiry which the Parliament did direct. Any of these things would cause its purported decision to be a nullity."

¶524

The dicta of the majority of the House of Lords in the above case would show the extent to which 'lack' and 'excess' of jurisdiction have been assimilated or, in other words, the extent to which we have moved away from the traditional concept of "jurisdiction". The effect of the dicta in that case is to reduce the difference between jurisdictional error and error of law within jurisdiction almost to vanishing point. The practical effect of the decision is that any error of law can be reckoned as jurisdictional. This comes perilously close to saying that there is jurisdiction if the decision is right in law but none if it is wrong. Almost any misconstruction of a statute can be represented as "basing their decision on a matter with which they have no right to deal", "imposing an unwarranted condition" or "addressing themselves to a wrong question". The majority opinion in the case leaves a Court or Tribunal with virtually no margin of legal error. Whether there is excess of jurisdiction or merely error within jurisdiction can be determined only by construing the empowering statute, which will give little guidance. It is really a question of how much latitude the Court is prepared to allow. In the end it can only be a value judgment (see H.W.R. Wade, "Constitutional and Administrative Aspects of the Anismanic case", Law Quarterly Review, Vol. 85, 1969, p. 198). Why is it that a wrong decision on a question of limitation or res judicata 'was treated as a jurisdictional error and liable to be interfered with in revision ? It is a bit difficult to understand how an erroneous decision on a question of limitation or res judicata would oust the jurisdiction of the Court in the primitive sense of the term and render the decision or a decree embodying the decision a nullity liable to collateral attack. The reason can only be that the error of law was considered as vital by the Court. And there is no yardstick to determine the magnitude of the error other than the opinion of the Court."

¶525

(v) In Raza Textiles Ltd. v. Income Tax Officer, Rampur [(1973)

¶526

1 SCC 633], the Hon'ble Supreme Court held as follows:

¶527

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¶528

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¶529

"No authority, much less a quasi-judicial authority, can confer jurisdiction on itself by deciding a jurisdictional fact wrongly The question whether the jurisdictional fact has been rightly decided or not is a question that is open for examination by the High Court in an application for a writ of certiorari. If the High Court comes to the conclusion, as the learned single Judge has done in this case, that the Income-tax Officer had clutched at the jurisdiction by deciding a jurisdictional fact erroneously, then the assesses was entitled for the writ of certiorari prayed for by him. It is incomprehensible to think that a quasi-judicial authority like the Income-tax Officer can erroneously decide a jurisdictional fact and thereafter proceed to impose a levy on a citizen. In our opinion the Appellate Bench is wholly wrong in opining that the Income-tax Officer can "decide either way".

¶530

(vi) In Shrisht Dhawan (SMT.) v. M/s. Shaw Brothers , [(1992) 1 SCC 534], the Hon'ble Supreme Court, at para 19, held thus:-

¶531

"19....What, then, is an error in respect of jurisdictional fact? A jurisdictional fact is one on existence or non-existence of which depends assumption or refusal to assume jurisdiction by a Court, tribunal or an authority. In Black's Legal Dictionary it is explained as a fact which must exist before a court can properly assume jurisdiction of a particular case. Mistake of fact in relation to jurisdiction is an error of jurisdictional fact. No statutory authority or tribunal can assume jurisdiction in respect of subject matter which the statute does not confer on it and if by deciding erroneously the fact on which jurisdiction depends the court or tribunal exercises the jurisdiction then the order is vitiated. Error of jurisdictional fact renders the order ultra vires and bad. In Raza Textiles it was held that a court or tribunal cannot confer jurisdiction on itself by deciding a jurisdictional fact wrongly."

¶532

(vii) After considering Anisminic’s case (cited supra) and several decisions, a learned single Judge of this Court has explained

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¶535

“Jurisdiction” in Malayala Manorama Co. Ltd. v. Asstt. Commissioner (KGST) [2006 (3) KLT 581], and held that the concept of jurisdiction has been drastically expanded after the decision of the House of Lords in Anisminic v. The Foreign Compensation Commission (1967 (2) AER 986). Now, every error of law if a jurisdictional error. If a decisive fact is wrongly understood, even then, the decision will be outside jurisdiction. This concept is best explained by K.S. Paripoornan, J., in his Lordship's separate Judgment in Mafatlal Industries v. Union of India [(1997) 5 SCC 536]. The relevant portion of the said Judgment reads as follows:

¶536

“Opinions may differ as to when it can be said that in the 'public law' domain, the entire proceeding before the appropriate authority is illegal and without jurisdiction or the defect or infirmity in the order goes to the root of the matter and makes it in law invalid or void (referred to in Illuri Subbayya Chetty case and approved in Dhulabhai case). The matter may have to be considered in the light of the provisions of the particular statute in question and the factsituation obtained in each case. It is difficult to visualise all situations hypothetically and provide an answer. Be that as it may, the question that frequently arises for consideration, is, in what situation/cases the non-compliance or error or mistake, committed by the statutory authority or tribunal, makes the decision rendered ultra vires or a nullity or one without jurisdiction? If the decision is without jurisdiction, notwithstanding the provisions for obtaining reliefs contained in the Act and the 'ouster clauses', the jurisdiction of the ordinary court is not excluded. So, the matter assumes significance. Since the landmark decision in Anisminic Ltd. v. Foreign Compensation Commission, the legal world seems to have accepted that any 'jurisdictional error' as understood in the liberal or modern approach, laid down therein, makes a decision ultra vires or a nullity or without jurisdiction and the 'ouster clauses' are construed restrictively and such

¶537

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¶538

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¶539

provisions whatever their stringent language be, have been held, not to prevent challenge on the ground that the decision is ultra vies and being a complete nullity, it is not a decision within the meaning of the Act. The concept of jurisdiction has acquired 'new dimensions'. The original or pure theory of jurisdiction means 'the authority to decide' and it is determinable at the commencement and not at the conclusion of the enquiry. The said approach has been given a go-by in Anisminic case as we shall see from the discussion hereinafter (See De Smith, Woolf and Jowell - Judicial Review of Administrative Action (1995 Edn.) p.238, Halsbury's Laws of England (4^th Edn.) p. 114, para 67, footnote (9). As Sir William Wade observes in his book, Administrative Law (7^th Edn.), 1994, at p.229:

¶540

“The tribunal must not only have jurisdiction at the outset, but must retain it unimpaired until it has discharged its task.”

¶541

The decision in Animinic case has been cited with approval in a number of cases by this Court: citation of a few such cases - Union of India v. Tarachand Gupta & Bros (AIR 1971 SC 1558 at p.1565, A.R. Antulay v. R.S. Nayak (1988 (2) SCC 602 at p.650), 'R.B. Shreeram Durga Prasad and Fatehchand Nursing Das v. Settlement Commission (IT & WT) (1989 (1) SCC 628 at p.634), N. Parthasararhy v. Controller of Capital Issues (1991 (3) SCC 153 at p.195), Associated Engineering Co. v. Govt. of A.P. (1991 (4) SCC 93), Shiv Kumar Chadha v. Municipal Corpn. of Delhi (1993 (3) SCC 161 at p.173). Delivering the Judgment of a two member Bench in M.L. Sethi v. R.P. Kapur (AIR 1972 SC 2379), Mathew, J., in paras 10 and 11 of the Judgment explained the legal position after Anisminic case to the following effect:

¶542

“10. The word 'jurisdiction is a verbal cost of many colours. Jurisdiction originally seems to have had the meaning which Lord Baid ascribed to it in Anisminic Ltd. v. Foreign. Compensation Commission, namely, the entitlement 'to enter upon the enquiry in question. If there was an

¶543

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¶544

-:55:-

¶545

entitlement to enter upon an enquiry into the question, then, any subsequent error could only be regarded as an error within the jurisdiction. The best known formulation of this theory is that made by Lord Dennan in 'R. v. Boltan. He said that the question of jurisdiction is determinable at the commencement, not at the conclusion of the enquiry. In Anisminic Ltd., Lord Reid said:

¶546

'But there are many cases, where, although the tribunal had jurisdiction to enter on the enquiry, it has done for failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith, have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive.”

¶547

In the same case, Lord Pearce said:

¶548

'Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an enquiry. Or the tribunal may, at the end, make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper enquiry, the tribunal may depart from the rules of natural justice, or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby, it would step outside its jurisdiction. It would turn its enquiry into something not directed by Parliament and fail to make the

¶549

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¶550

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¶551

enquiry which Parliament did direct. Any of these things would cause its purported decisions to be a nullity.'

¶552

The dicta of the majority of the House of Lords, in the above case, would show the extent to which 'lack' and 'excess' of jurisdiction have been assimilated or, in other words, the extent to which we have moved away from the traditional concept of 'jurisdiction'. The effect of the dicta in that case is to reduce the difference between jurisdictional error and error of law within jurisdiction almost to vanishing point. The practical effect of the decision is that any error of law can be reckoned as jurisdiction if the decision is right in law but none if it is wrong. Almost any misconstruction of a statute can be represented as 'basing their decision n a matter with which they have no right to deal', 'imposing an unwarranted condition' or 'addressing themselves to a wrong question'. The majority opinion in the case leaves a court or tribunal with virtually no margin of legal error. Whether there is excess of jurisdiction or merely error within jurisdiction can be determined only by construing the empowering statute, which will give little guidance. It is really a question of how much latitude the court is prepared to allow............”

¶553

(viii) In Hari Prasad Mulshanker Trivedi v. V.B. Raju (AIR 1973 SC 2602), a Constitution Bench of the Hon'ble Supreme Court stated thus: (SCC pp 423-24, para 28).

¶554

“Though the dividing line between lack of jurisdiction or power and erroneous exercise of it has become thin with the decision of the House of Lords in the Anisminic case, we do not think that the distinction between the two has been completely wiped out. We are aware of the difficulty in formulating an exhaustive rule to tell when there is lack of power and when there is an erroneous exercise of it. The difficulty has arisen because the word 'jurisdiction' is an expression which is used in a variety of senses and takes its colour from its context (see per Diplock, J. at p.394 in the Anisminic case). Whereas the 'pure' theory of jurisdiction would reduce jurisdictional control to a vanishing point, the adoption of a narrower meaning might result in a more useful

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¶556

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¶557

legal concept even though the formal structure of law may lost something of its logical symmetry. 'At bottom, the problem of defining the concept of jurisdiction for the purpose of judicial review has been one of public policy rather than one of logic'. (S.A. Smith 'Judicial Review of Administrative Action, 2^nd Edn., p.98. (1968) Edn.)

¶558

The observation of the learned author (S.A.De Smith) was continued in its 3^rd Edn. (1973) at p.98 and in its 4^th Edn. (1980) at p.112 of the book. The observation aforesaid was based on the then prevailing academic opinion only as is seen from the footnotes. It should be stated that the said observation is omitted from the latest edition of the book De Smith, Woolf and Jowell -Judicial Review of Administrative Action - 5^th Edn. (1995) as is evident from p.229; probably due to later developments in the law and the academic opinion that has emerged due to the change in the perspective.

¶559

After 1980, the decision in the Anisminic case came up for further consideration before the House of lords, Privy Council and other courts. The three leading decisions of the House of Lords wherein Animinic principle was followed and explained, are the following: Racal Communications Ltd., In re (1981 AC 374), O' Reilly v. Mackman [1983 (2) AC 237], Re. v. Hull University Visitor (1993 AC 682). It should be noted that Racal, In re cae, the Anisminic principle was held to be inapplicable in the case of (superior) court where the decision of the court is made final and conclusive by the statute. [The superior court referred to in this decision is the High Court) (1981 AC 374, 383, 384, 386, 391)]. In the meanwhile, the House of Lords, in Council of Civil Service Unions v. Minister for the Civil Service (1985 AC 374), enunciated three broad grounds for judicial review, as 'legality', 'procedural propriety' and 'rationality' and this decision had its impact on the development of the law in post-Anisminic period. In the light of the above four important decisions of the House of Lords, other decisions of the court of appeal, Privy Council etc., and the later academic opinion in the matter, the entire case-law on the subject has been reviewed in leading textbooks. In the

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latest edition of De Smith on Judicial Review of Administrative Action - edited by Lord Woolf and Jowell, Q.C. (Professor of Public Law, 5^th Edn. - 1995) in Chapter 5, titled as 'Jurisdiction, Vires, Law and Fact' (pp-223-204), there is exhaustive analysis about the concept 'Jurisdiction' and its ramifications. The authors have discussed the pure theory of jurisdiction, the innovative decision in Anisminic case, the development of the law in the post-Anisminic period, the scope of the 'finality' clauses (exclusion of jurisdiction of courts) in the statutes and have laid down a few propositions at pp.250-256 which could be advanced on the subject. The authors have concluded the discussion thus at p.256:

¶563

'After Anisminic virtually every error of law is a jurisdictional error, and the only place left for non-jurisdictional error is where the components of the decision made by the inferior body included matters of fact and policy as well as law or where the error was evidential (concerning for example, the burden of proof or admission of evidence). Perhaps the most precise indication of jurisdictional error is that advanced by Lord Diplock in Raccal Communications, when he suggested that a tribunal is entitled to make an error when the matter 'involves, as many do interrelated questions of law, fact and degree'. Thus, it was for the county court judge in Pearlman, to decide whether the installation of central heating in a dwelling amounted to a 'structural alteration, extension or addition'. This was a typical question of mixed law, fact and degree which only a scholiast would think it appropriate to dissect into two separate questions, one for decision by the superior court, viz., the meaning of these words, a question which must entail considerations of degree and the other for decision by a country court viz., the application of words to the particular installation, a question which also entails considerations of degree.

¶564

It is, however, doubtful whether any test of jurisdictional error will prove satisfactory. The distinction between jurisdictional and non-jurisdictional error is ultimately based upon foundations of sand. Much of the superstructure has already crumbled. What remains is likely quickly to fall away as the

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¶566

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¶567

courts rightly insist that all administrative action should be, simply, lawful, whether or not jurisdictionally lawful.'

¶568

The jurisdictional control exercised by superior courts over subordinate courts, tribunals or other statutory bodies and the scope and content of such power has been pithily stated in Halsbury's Laws of England - 4^th Edn. (Reissue), 1989 Vol. 1(1), p.113 to the following effect:

¶569

The inferior court or tribunal lacks jurisdiction if it has no power to enter upon an enquiry into a matter at all and it exceeds jurisdiction if it nevertheless enters upon such an enquiry or, having jurisdiction in the first place, it proceeds to arrogate an authority withheld from it by perpetrating a major error of substance, form or procedure or by making an order or taking action outside its limited area of competence. Not every error committed by an inferior court or tribunal or other body, however, goes to jurisdiction. Jurisdiction to decide a matter imports a limited power to decide that matter incorrectly.

¶570

A tribunal lacks jurisdiction if (1) it is improperly constituted or (2) the proceedings have been improperly instituted or (3) authority to decide has been delegated to it unlawfully, or (4) it is without competence to deal with a matter by reason of the parties, the area in which the issue arose, the nature of the subject-matter, the value of that subject-matter, or the non-existence of any other prerequisite of a valid adjudication. Excess of jurisdiction is not materially distinguishable from lack of jurisdiction and the expression may be used interchangeably.

¶571

Where the jurisdiction of tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, or collateral to the merits of, the issue, or as jurisdictional.

¶572

There is a presumption in construing statutes which confer jurisdiction or discretionary powers on a body, that if that body makes an error of law while purporting to act within that jurisdiction or in exercising those powers, its decision or

¶573

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¶574

-:60:-

¶575

action will exceed the jurisdiction conferred and will be quashed. The error must be one on which the decision or action depends. An error of law going to jurisdiction may be committed by a body which fails to follow the proper procedure required by law, which takes legally irrelevant considerations into account, or which fails to take relevant considerations into account, or which asks itself and answers the wrong question.

¶576

The presumption that error of law goes to jurisdiction may be rebutted on the construction of a particular statute, so that the relevant body will not exceed its jurisdiction by going wrong in law. Previously the courts were more likely to find that errors of law were within jurisdiction; but with the modern approach errors of law will be held to fall within a body's jurisdiction only in exceptional cases. The courts will generally assume that their expertise in determining the principles of law applicable in any case has not been excluded by Parliament.(p.120)

¶577

Errors of law include misinterpretation of statute or any other legal document or a rule of common law; asking oneself and answering the wrong question, taking irrelevant considerations into account or failing to take relevant considerations into account when purporting to apply the law to the facts; admitting inadmissible evidence or rejecting admissible and relevant evidence; exercising a discretion on the basis of incorrect legal principles; giving reasons which disclose faulty legal reasoning or which are inadequate to fulfil an express duly to give reasons and misdirecting oneself as to the burden of proof.

¶578

H.W.R.Wade and C.F.Forsyth in their book-Administrative Law 7th Edn.(1994) discuss the subject regarding the jurisdiction of superior courts over subordinate courts and tribunals under the head 'jurisdiction over Fact and Law' in Chapter 9, pp.284 to 320. The decisions before Anisminic and those in the post-Anisminic period have been discussed in detail. At pp.319-320, the authors give the Summary of Rules thus:

¶579

W.P.(C).1329/2020

¶580

-:61:-

¶581

'Jurisdiction over fact and law: Summary

¶582

At the end of a chapter which is top-heavy with obsolescent material it may be useful to summarise the position as shortly as possible. The overall picture is of an expanding system struggling to free itself from the trammels of classical doctrines laid down in the past. It is not safe to say that the classical doctrines are wholly absolute and that the broad and simple principles of review, which clearly now commend themselves to the judiciary, will entirely supplant them. A summary can therefore only state the long-established rules together with the simpler and broader rules which have now superseded them, much for the benefit of the law. Together they are as follows:

¶583

Errors of fact

¶584

Old rule: The court would quash only if the erroneous fact was jurisdictional.

¶585

New rule: The court will quash if an erroneous and decisive fact was -

¶586

(a) jurisdictional

¶587

(b) found on the basis of no evidence; or

¶588

¶589

Errors of law

¶590

Old rule: The court would quash only if the error was

¶591

(a) jurisdictional

¶592

(b) on the face of the record.

¶593

New rule: The court will quash for any decisive error, because all errors of law are now jurisdictional.

¶594

(ix) In Arun Kumar v. Union of India [(2007) 1 SCC 732], the

¶595

Hon'ble Supreme Court, at Paragraphs 74, 80 to 84, held as follows:

¶596

"74. A "jurisdictional fact" is a fact which must exist before a Court, Tribunal or an Authority assumes jurisdiction over a

¶597

W.P.(C).1329/2020

¶598

-:62:-

¶599

particular matter. A jurisdictional fact is one on existence or non-existence of which depends on the jurisdiction of a court, a tribunal or an authority. It is the fact upon which an administrative agency's power to act depends. If the jurisdictional fact does not exist, the court, authority or officer cannot act. If a Court or authority wrongly assumes the existence of such fact, the order can be questioned by a writ of certiorari. The underlying principle is that by erroneously assuming the existence of such jurisdictional fact, no authority can confer upon itself jurisdiction which it otherwise does not possess.

¶600

The Court relied upon a decision in White & Collins v. Minister of Health (1939) 2 KB 838: 108 LJ KB 768, wherein a question debated was whether the court had jurisdiction to review the finding of administrative authority on a question of fact. The relevant Act enabled the local authority to acquire land compulsorily for housing of working classes. But it was expressly provided that no land could be acquired which at the date of compulsory purchase formed part of a park, garden or pleasure-ground. An order of compulsory purchase was made which was challenged by the owner contending that the land was a part of the park. The Minister directed public inquiry and on the basis of the report submitted, confirmed the order.

¶601

Interfering with the finding of the Minister and setting aside the order, the Court of Appeal stated:

¶602

"The first and the most important matter to bear in mind is that the jurisdiction to make the order is dependent on a finding of fact; for, unless the land can be held not to be part of a park or not to be required for amenity or convenience, there is no jurisdiction in the borough council to make, or in the Minister to confirm, the order. In such a case it seems almost self-evident that the Court which has to consider whether there is jurisdiction to make or confirm the order must be entitled to review the vital

¶603

W.P.(C).1329/2020

¶604

-:63:-

¶605

finding on which the existence of the jurisdiction relied upon depends. If this were not so, the right to apply to the Court would be illusory." [See also Rex v. Shoredich Assessment Committee; (1910) 2 KB 859: 80 LJ KB 185].

¶606

A question under the Income Tax Act, 1922 arose in Raza Textiles Ltd., v. Income Tax Officer, Rampur, (1973) 1 SCC 633: AIR 1973 SC 1362. In that case, the ITO directed X to pay a certain amount of tax rejecting the contention of X that he was not a non-resident firm. The Tribunal confirmed the order. A single Judge of the High Court of Allahabad held X as a non-resident firm and not liable to deduct tax at source. The Division Bench, however, set aside the order observing that,-

¶607

"ITO had jurisdiction to decide the question either way. It cannot be said that the Officer assumed jurisdiction by a wrong decision on this question of residence".

¶608

X approached this Court.

¶609

Allowing the appeal and setting aside the order of the Division Bench, this Court stated:

¶610

"The Appellate Bench appears to have been under the impression that the Income-tax Officer was the sole judge of the fact whether the firm in question was resident or nonresident. This conclusion, in our opinion, is wholly wrong. No authority, much less a quasi-judicial authority, can confer jurisdiction on itself by deciding a jurisdictional fact wrongly The question whether the jurisdictional fact has been rightly decided or not is a question that is open for examination by the High Court in an application for a writ of certiorari. If the High Court comes to the conclusion, as the learned single Judge has done in this case, that the Income-tax Officer had clutched at the jurisdiction by deciding a jurisdictional fact erroneously, then the assesses

¶611

W.P.(C).1329/2020

¶612

-:64:-

¶613

was entitled for the writ of certiorari prayed for by him. It is incomprehensible to think that a quasijudicial authority like the Income-tax Officer can erroneously decide a jurisdictional fact and thereafter proceed to impose a levy on a citizen." (emphasis supplied)

¶614

From the above decisions, it is clear that existence of 'jurisdictional fact' is sine qua non for the exercise of power. If the jurisdictional fact exists, the authority can proceed with the case and take an appropriate decision in accordance with law. Once the authority has jurisdiction in the matter of existence of 'jurisdictional fact', it can decide the 'fact in issue' or 'adjudicatory fact'. A wrong decision on 'fact in issue' or on 'adjudicatory fact' would not make the decision of the authority without jurisdiction or vulnerability provided essential or fundamental fact as to the existence of jurisdiction is present."

¶615

(x) In Carona Ltd v. M/s. Parvathy Swaminathan & Sons, reported

¶616

in (2007) 1 SCC 559, the Hon'ble Supreme Court at paragraph Nos. 21 to 24 and 31, held thus:-

¶617

Stated simply, the fact or facts upon which the jurisdiction of a Court, a Tribunal or an Authority depends can be said to be a 'jurisdictional fact'. If the jurisdictional fact exists, a Court, Tribunal or Authority has jurisdiction to decide other issues. If such a fact does not exist, a Court, Tribunal or Authority cannot act. It is also well settled that a Court or a Tribunal cannot wrongly assume existence of jurisdictional fact and proceed to decide a matter. The underlying principle is that by erroneously assuming existence of a jurisdictional fact, a subordinate Court or an inferior Tribunal cannot confer upon itself jurisdiction which it otherwise does not posses.

¶618

In Halsbury's Laws of England, (4^th Edn.), Vol. 1, para 55, p.61; Reissue, Vol. 1(1), para 68, pp. 114- 15, it has

¶619

W.P.(C).1329/2020

¶620

-:65:-

¶621

been stated: "Where the jurisdiction of a tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, or collateral to the merits of the issue. If, at the inception of an inquiry by an inferior tribunal, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether to act or not and can give a ruling on the preliminary or collateral issue; but that ruling is not conclusive".

¶622

The existence of a jurisdictional fact is thus a sine qua non or condition precedent to the assumption of jurisdiction by a Court or Tribunal.

¶623

JURISDICTIONAL FACT AND ADJUDICATORY FACT

¶624

But there is distinction between 'jurisdictional fact' and 'adjudicatory fact' which cannot be ignored. An 'adjudicatory fact' is a 'fact in issue' and can be determined by a Court, Tribunal or Authority on 'merits', on the basis of evidence adduced by the parties. It is no doubt true that it is very difficult to distinguish 'jurisdictional fact' and 'fact in issue' or 'adjudicatory fact'. Nonetheless the difference between the two cannot be overlooked.

¶625

It is thus clear that for assumption of jurisdiction by a Court or a Tribunal, existence of jurisdictional fact is a condition precedent. But once such jurisdictional fact is found to exist, the Court or Tribunal has power to decide adjudicatory facts or facts in issue.”

¶626

(xi) In Harpal Singh v. State of Punjab [(2007) 13 SCC 387], the Hon’ble Supreme Court held as under;

¶627

“9. At this stage it will be useful to refer to the dictionary meaning of the word 'Jurisdiction':

¶628

Black's Law Dictionary: "Court's power to decide a case or issue a decree".

¶629

W.P.(C).1329/2020

¶630

-:66:-

¶631

Words and Phrases - Legally defined - Third Edition (p.497) : "By 'jurisdiction' is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by similar means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction extends."

¶632

Law Lexicon by P. Ramanatha Aiyar - 2^nd Edn. Reprint 2000 : "An authority or power, which a man has to do justice in causes of complaint brought before him (Tomlin's Law Dic). The power to hear and determine the particular case involved; the power of a Court or a judge to entertain an action, petition, or other proceeding; the legal power of hearing and determining controversies. As applied to a particular claim or controversy, jurisdiction is the power to hear and determine the controversy.

¶633

Jurisdiction, therefore, means the authority or power to entertain, hear and decide a case and to do justice in the case and determine the controversy. In absence of jurisdiction the court has no power to hear and decide the matter and the order passed by it would be a nullity.”

¶634

(xii) In Ramesh Chandra Sankla v. Vikram Cement, reported in

¶635

(2008) 14 SCC 58, the Hon'ble Supreme Court at paragraphs 68 to 70, held as under:-

¶636

"68. A 'jurisdictional fact' is one on existence of which depends jurisdiction of a Court, Tribunal or an Authority. If the jurisdictional fact does not exist, the Court or Tribunal cannot act. If an inferior Court or Tribunal wrongly assumes the existence of such fact, a writ of certiorari lies. The underlying

¶637

W.P.(C).1329/2020

¶638

-:67:-

¶639

principle is that by erroneously assuming existence of jurisdictional fact, a subordinate Court or an inferior Tribunal cannot confer upon itself jurisdiction which it otherwise does not possess.

¶640

The counsel referred to a recent decision of this Court in Arun Kumar v. Union of India. Speaking for the Court, one of us (C.K. Thakker, J.) observed: (SCC p.758, para 74)

¶641

"74. A 'jurisdictional fact' is a fact which must exist before a Court, Tribunal or an Authority assumes jurisdiction over a particular matter. A jurisdictional fact is one on existence or non-existence of which depends jurisdiction of a court, a tribunal or an authority. It is the fact upon which an administrative agency's power to act depends. If the jurisdictional fact does not exist, the court, authority or officer cannot act. If a Court or authority wrongly assumes the existence of such fact, the order can be questioned by a writ of certiorari. The underlying principle is that by erroneously assuming existence of such jurisdictional fact, no authority can confer upon itself jurisdiction which it otherwise does not posses".

¶642

It was further observed: (SCC p.759, para 76)

¶643

"The existence of jurisdictional fact is thus sine qua non or condition precedent for the exercise of power by a court of limited jurisdiction".

¶644

Drawing the distinction between 'jurisdictional fact' and 'adjudicatory fact', the Court stated: (Arun Kumar case, SCC p.761, para 84)

¶645

"84.... it is clear that existence of 'jurisdictional fact' is sine qua non for the exercise of power. If the jurisdictional fact exists, the authority can proceed with the case and take an appropriate decision in accordance with law. Once the authority has jurisdiction in the matter on existence of

¶646

W.P.(C).1329/2020

¶647

-:68:-

¶648

'jurisdictional fact', it can decide the 'fact in issue' or 'adjudicatory fact'. A wrong decision on 'fact in issue' or on 'adjudicatory fact' would not make the decision of the authority without jurisdiction or vulnerable provided essential or fundamental fact as to existence of jurisdiction is present".

¶649

The principle was reiterated in Carona Ltd. v. Parvathy Swaminathan & Others, (2007) 1 SCC 559."

¶650

From the foregoing decisions, it could be deduced that existence of

¶651

jurisdiction and jurisdictional fact are sine qua non for exercise of power. A jurisdictional fact is one on existence or non-existence of which depends upon jurisdiction on a Court or tribunal or authority, as the case may be. If the jurisdictional fact does not exist, the Court, authority or officer cannot act. If a court or authority has wrongly assumed the existence of such fact, the order can be quashed by a writ of certiorari. If the jurisdictional fact exists, the authority can proceed further and exercise his power and take a decision in accordance with law. No Court or tribunal or statutory authority can assume jurisdiction, in respect of a matter which the statute does not confer on it. Error on jurisdictional fact, renders the order, ultra vires and bad.

¶652

Even taking it for granted that Exhibit-P9 complaint before the Kerala State Human Rights Commission was made by the 2^nd respondent, on behalf of the petitioner's father, in the light of the above said regulations, the

¶653

W.P.(C).1329/2020

¶654

-:69:-

¶655

Commission ought not to have entertained the complaint. The Kerala State Human Rights Commission ought to have simply rejected the complaint stating that the issue raised is outside the purview of the Commission, or if the complaint is maintainable by the person under any other Act, the same should have been returned for presentation before the Maintenance Tribunal. Complaint filed by 2^nd respondent does not even disclose the previous lis between the father and the petitioner. Thus, in the light of the provisions of the Protection of Human Rights Act, 1993, Regulations of National and State Human Rights Commission (Procedure), 1994 and 2001 respectively, and the forms appended thereto, the Kerala State Human Rights Commission has exceeded in its jurisdiction, in entertaining the complaint preferred by the 2^nd respondent and consequently, directing the RDO to enquire into the dispute relating to the partition deed.

¶656

Yet another aspect to be considered in the case on hand is the effect of notwithstanding clause in Section 3 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, which reads thus:

¶657

“ 3. Act to have overriding effect .- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act, or in any instrument having effect by virtue of any enactment other

W.P.(C).1329/2020

-:70:-

than this Act.”

Let us consider a few decisions on the said expression, “Act to have

¶662

overriding effect”, which are extracted hereunder.

¶663

(i) In State of West Bengal v. Union of India reported in [1964] 1 SCR 371, the Hon'ble Supreme Court observed as under:

¶664

"The Court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs."

¶665

(ii) In Union of India v. I.C. Lala reported in AIR 1973 SC 2204, the Hon'ble Supreme Court held that non obstante clause does not mean that the whole of the said provision of law has to be made applicable or the whole of the other law has to be made inapplicable. It is the duty of the Court to avoid the conflict and construe the provisions to that they are harmonious.

¶666

(iii) In Union of India v. G.M. Kokil reported in AIR 1984 SC 1022, the Hon'ble Supreme Court, at Paragraph 10, held thus:

¶667

"It is well-known that a non-obstante clause is a legislative device which is usually employed to give overriding effect to certain provision over some contrary provision that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions."

¶668

(iv) In Chandavarkar Sita Ratna Rao v. Ashalata S. Guram [(1986) 4 SCC 447, the Hon'ble Apex Court held as follows:

¶669

"67. A clause beginning with the expression "notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in

¶670

W.P.(C).1329/2020

¶671

-:71:-

¶672

any law for the time being in force, or in any contract" is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the non-obstante clause. It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non-obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the non-obstante clause would not be an impediment for an operation of the enactment. See in this connection the observations of this Court in The South India Corporation (P) Ltd., v. The Secretary, Board of Revenue, Trivandrum & Anr., AIR 1964 SC 207 at 215[1964] 4 SCR 280."

¶673

(v) In Vishin N. Kanchandani v. Vidya Lachmandas Khanchandani reported in AIR 2000 SC 2747, at Paragraph 11, the Hon'ble Supreme Court held as follows:

¶674

"There is no doubt that by non-obstante clause the Legislature devices means which are usually applied to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other statute. In other words such a clause is used to avoid the operation and effect of all contrary provisions. The phrase is equivalent to showing that the Act shall be no impediment to measure intended. To attract the applicability of the phrase, the whole of the section, the scheme of the Act and the objects and reasons for which such an enactment is made has to be kept in mind."

¶675

(vi) In ICICI Bank Ltd., v. SIDCO Leathers Ltd., reported in (2006) 10 SCC 452, the Hon'ble Supreme Court, at Paragraphs 34, 38, 46 and 49, held as follows:

¶676

"34. Section 529-A of the Companies Act no doubt contains a non-obstante clause but in construing the provisions thereof, it is necessary to determine the purport

¶677

W.P.(C).1329/2020

¶678

-:72:-

¶679

and object for which the same was enacted. ......

¶680

The non-obstante nature of a provision although may be of wide amplitude, the interpretative process thereof must be kept confined to the legislative policy .......

¶681

A non-obstante clause must be given effect to, to the extent the Parliament intended and not beyond the same.

¶682

Section 529-A of the Companies Act does not ex facie contain a provision (on the aspect of priority) amongst the secured creditors and, hence, it would not be proper to read there into things, which the Parliament did not comprehend."

¶683

(vii) The Hon'ble Supreme Court in Central Bank of India v. State of Kerala reported in (2009) 4 SCC 94, at Paragraphs 103 to 107, the Hon'ble Supreme Court considered as follows:

¶684

“103. A non obstante clause is generally incorporated in a statute to give overriding effect to a particular section or the statute as a whole. While interpreting non obstante clause, the Court is required to find out the extent to which the legislature intended to do so and the context in which the non obstante clause is used. This rule of interpretation has been applied in several decisions.”

¶685

(viii) In State Bank of West Bengal v. Union of India [(1964) 1 SCR 371], it was observed that:

¶686

“68. ...... the Court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs."

¶687

(ix) In Madhav Rao Jivaji Rao Scindia v. Union of India and another [(1971) 1 SCC 85], Hidayatullah, C.J. observed that,-

¶688

"The non obstante clause is no doubt a very potent clause intended to exclude every consideration arising from other

¶689

W.P.(C).1329/2020

¶690

-:73:-

¶691

provisions of the same statute or other statute but "for that reason alone we must determine the scope" of that provision strictly. When the section containing the said clause does not refer to any particular provisions which it intends to override but refers to the provisions of the statute generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. A search has, therefore, to be made with a view to determining which provision answers the description and which does not."

¶692

(x) In R.S. Raghunath v. State of Karnataka and another [(1992) 1 SCC 335], a three-Judge Bench referred to the earlier judgments in Aswini Kumar Ghose v. Arabinda Bose [AIR 1952 SC 369], Dominion of India v. Shrinbai A. Irani [AIR 1954 SC 596] , Union of India v. G.M. Kokil [1984 (Supp.) SCC 196], Chandravarkar Sita Ratna Rao v. Ashalata S. Guram [(1986) 4 SCC 447] and observed as follows:

¶693

"......... The non-obstante clause is appended to a provision with a view to give the enacting part of the provision an overriding effect in case of a conflict. But the non-obstante clause need not necessarily and always be co-extensive with the operative part so as to have the effect of cutting down the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpretation on a plain and grammatical construction of the words the non-obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases the non-obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the legislature by way of abundant caution and not by way of limiting the ambit and scope of the Special Rules."

¶694

(xi) In A.G. Varadarajulu v. State of Tamil Nadu [(1998) 4 SCC 231], the Hon'ble Apex Court relied on Aswini Kumar Ghose's case. The Court while interpreting non obstante clause contained in

¶695

W.P.(C).1329/2020

¶696

-:74:-

¶697

Section 21-A of Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 held:-

¶698

"It is well settled that while dealing with a non obstante clause under which the legislature wants to give overriding effect to a section, the court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. Such intention of the legislature in this behalf is to be gathered from the enacting part of the section. In Aswini Kumar Ghose v. Arabinda Bose [ AIR 1952 SC 369], Patanjali Sastri, J. observed:

¶699

"The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously;"

¶700

When Section 3 of the Maintenance and Welfare of Parents and

¶701

Senior Citizens Act, 2007, specifically states that, 'any instrument having effect by virtue of any enactment other than the Act', it deals with a notwithstanding provision. Though the word, “instrument” is not defined in the Act, in Purushottam H. Judye and Others v. V. D. Potdar, The Authority

¶702

appointed under the payment of Wages Act and Another reported in

¶703

AIR 1966 SC 856, the Hon'ble Supreme Court, while interpreting the word

¶704

“instrument”, at paragraph 13, held as under:

¶705

“13. In construing the word "instrument'' in a narrow sense, the High Court has referred to the decision in Jodrell v. Jodrell, 1869 (7) Eq 461. In that case, Lord Romilly, M. R., has observed that an order of Court is not an instrument

¶706

W.P.(C).1329/2020

¶707

-:75:-

¶708

within the meaning of the Apportionment Act, 4 and 5 Will. 4, c. 22. This decision undoubtedly shows that the word "instrument" can have a narrow meaning if the context of the statutory provision in which it occurs indicates that way. On the other hand, under the Conveyancing Act, 1881 (44 and 45 Vict., c. 41), S.2 (xiii), "instrument" includes deed, will, inclosure, award, and Act of Parliament, (vide Stroud's Judicial Dictionary, p. 1473). It thus clear that in construing the word "instrument", we must have regard to the context in which the word occurs. No one can suggest that the word "instrument" can always and in every case include an award or an order of adjudication. On the contrary, as we have already indicated, ordinarily, the word "instrument" would refer to documents executed by the parties. But if the context clearly indicates that the word "instrument" is used in a much larger sense, that context must be taken into account and a comprehensive interpretation must be placed upon that word. We are, therefore, satisfied, that the High Court was in error in coming to the conclusion that the word "instrument" did not include an award and that made the applications made by the appellants before respondent No. 1 incompetent.”

¶709

Though the decision of the State Human Rights Commission is

¶710

ordinarily described as an order, the same partakes the character of an instrument having effect by virtue of any enactment, in the case on hand, Kerala State Human Rights Commission (Procedure) Regulations, 2001, which

¶711

W.P.(C).1329/2020

¶712

-:76:-

¶713

is other than the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. Exhibit-P8 order in HRMP No.2821/2018 dated 21.08.2019, cannot be the basis of a complaint by the 2^nd respondent before the Maintenance Tribunal. Viewed from that angle, an order passed without jurisdiction, will not confer any legal rights on the neighbour of the father, respondent No.2, to prefer Exhibit-P9 complaint to the Maintenance Tribunal.

¶714

The Maintenance Tribunal, before taking cognizance of Exhibit-P9 complaint of the 2^nd respondent, ought to have considered Section 3 of the Act, 2007, and rejected the complaint.

¶715

Another important factor, which the Maintenance Tribunal ought to have taken note of is, whether the 2^nd respondent, neighbour of the petitioner's father, has any locus standi to prefer Exhibit-P9 complaint dated 09.10.2019 before the Tribunal. In this context, let us consider a few decisions on locus standi.

¶716

(i) In Canadians for the Abolition of the Seal Hunt v. Canada reported in [1981] 1 FC 733), Justice Walsh of the Canadian Federal Court referred to locus standi as under:

¶717

“The right of individuals to bring proceedings .. when they are not personally affected (other than of course in their sensibilities) by the law or regulations complained of....”

¶718

W.P.(C).1329/2020

¶719

-:77:-

¶720

(ii) In R. v. Paddington Valuation Officer, Ex parte Peachey Property Corporation Ltd. [1966] 1 QB 380)], the Court held thus:

¶721

“The court would not listen, of course, to a mere busybody who was interfering in things which did not concern him. But it will listen to anyone whose interests are affected by what has been done.”

¶722

(iii) In Saskatchewan Ltd. v. Sask. Liquor and Gaming Authority [(157 DLR 4^th 82 (1998)], the Saskatchewan Court of Appeal adopted the following words as regards locus standi:

¶723

“A place of standing; standing in court. A right of appearance in a court of justice... on a given question. Roughly speaking, this place of standing, enabling a person to appear before and be heard by a court in relation to a given question, may be acquired in one of two ways: as of right, in reliance upon one’s own private interests in the question (private interest standing); or with leave of the court in reliance largely upon the public’s interest in the question (public interest standing). And standing may exist, or be granted, in both civil and criminal proceedings, proceedings of one sort and other involving claims of various kinds, including a claim that a law is unconstitutional.”

¶724

(iv) In Jasbhai Motibhai Desai v. Roshan Kumar and Ors. [(1976)

¶725

1 SCC 671], the Hon'ble Supreme Court on the aspect of locus standi, observed thus:

¶726

“12. According to most English decisions, in order to have the locus standi to invoke certiorari jurisdiction, the petitioner should be an "aggrieved person" and in a case of defect of jurisdiction, such a petitioner will be entitled to a writ of certiorari as a matter of course, but if he does not fulfil that character and is a "stranger", the Court will, in its discretion, deny him this extraordinary remedy, save in very special circumstances. This takes us to the further question: Who is an "aggrieved person"? And what are the

¶727

W.P.(C).1329/2020

¶728

-:78:-

¶729

qualifications requisite for such a status? The expression "aggrieved person" denotes an elastic, and, to an extent, an elusive concept.

¶730

It cannot be confined within the bounds of a rigid, exact and comprehensive definition. At best, its feature can be described a broad tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest and the nature and extent of the prejudice or injury suffered by him.”

¶731

(v) In Ratanlal v. Prahlad Jat and others, reported in (2017) 9 SCC 340, the Hon'ble Supreme Court, held as under:

¶732

“8. In Black's Law Dictionary, the meaning assigned to the term 'locus standi' is 'the right to bring an action or to be heard in a given forum'. One of the meanings assigned to the term 'locus standi' in Law Lexicon of Sri P. Ramanatha Aiyar, is 'a right of appearance in a Court of justice'. The traditional view of locus standi has been that the person who is aggrieved or affected has the standing before the court, that is to say, he only has a right to move the court for seeking justice. The orthodox rule of interpretation regarding the locus standi of a person to reach the Court has undergone a sea change with the development of constitutional law in India and the Constitutional Courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely on hyper-technical grounds. It is now well-settled that if the person is found to be not merely a stranger to the case, he cannot be non-suited on the ground of his not having locus standi.”

¶733

(vi) In Union of India and Ors. v. Associations of Class I (Group 'A') Officer and Ors .[2020 SCC Online Utt. 17], the High Court of Uttarakhand held as under:

¶734

“17. Locus standi to approach the Court/Tribunal relates to the

¶735

W.P.(C).1329/2020

¶736

-:79:-

¶737

maintainability of the petition/application. (Bangalore Medical Trust v. B.S. Muddappa [(1991) 4 SCC 54]. In a case of defect of jurisdiction, an aggrieved person will be entitled to relief including for a writ of certiorari as a matter of course, but if he does not fulfil that character, and is a "stranger", the Court/Tribunal will deny him this remedy, save in very special circumstances. [Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed (1976) 1 SCC 671]. To have "standing to sue", which means locus standi to ask for relief in a Court/Tribunal, the petitioner/applicant must show that he is injured, that is, he has been subjected to or threatened with a legal wrong. Courts can intervene only where legal rights are invaded. "Legal wrong" requires a judicially enforceable right and the touchstone to judiciability is injury to a legally protected right. A nominal or a highly speculative adverse affect on the interest or the right of a person is insufficient to give him the "standing to sue" for judicial review of the administrative action. Again the "adverse affect" requisite for "standing to sue" must be an "illegal effect". [Jasbhai Motibhai Desai (1976) 1 SCC 671]

¶738

In order to have locus standi, an applicant should ordinarily be one who has a personal or individual right in the subjectmatter of the application. In other words, as a general rule, infringement of some legal right, or prejudice to some legal interest, inhering in the petitioner is necessary to give him locus standi in the matter, (State of Orissa v. Madan Gopal Rungta; Calcutta Gas Co. v. State of W.B.; Ram Umeshwari Suthoo v. Member, Board of Revenue, Orissa; Gadde Venkateswara Rao v. Government of A.P.; State of Orissa v. Rajasaheb Chandanmall; Satyanarayana Sinha Dr. v. S. Lal & Co.; and Jasbhai Motibhai Desai). The expression “ordinarily” indicates that this is not a cast-iron rule. It is flexible enough to take in those cases where the applicant has been prejudicially affected by an act or omission of an authority, even though he has no proprietary or even a fiduciary interest in the subjectmatter. That apart, in exceptional cases, even a stranger or a person who was not a party to the proceedings before the authority, but has a substantial and genuine interest in the subject-matter of the proceedings, will be covered by this rule.

¶739

W.P.(C).1329/2020

¶740

-:80:-

¶741

(Jasbhai Motibhai Desai).

¶742

The foundation for exercising jurisdiction either under Section 19 of the Administrative Tribunals Act, or under Article 226 of the Constitution, is, ordinarily, the personal or individual legal right of the petitioner himself. However, in a Public Interest Litigation or in writs like habeas corpus and quo warranto, this rule has been relaxed and modified. (Satyanarayana Sinha (1973) 2 SCC 696; Railway Board v. Chandrima Das (2000) 2 SCC 465; and M.S. Jayaraj v. Commr. of Excise (2000) 7 SCC 552). The restricted meaning of "aggrieved person", and the narrow outlook of specific injury, has yielded in favour of a broad and wide construction in such cases. (B.S. Muddappa (1991) 4 SCC 54). In the context of public interest litigation the Supreme Court, in its various judgments, has given the widest amplitude and meaning to the concept of locus standi. In People's Union for Democratic Rights v. Union of India it was laid down that public interest litigation could be initiated not only by filing formal petitions in the High Court, but even by sending letters and telegrams so as to provide easy access to court. (Bandhua Mukti Morcha v. Union of India : (1997) 10 SCC 549; State of H.P. v. A Parent of a Student of Medical College(1985) 3 SCC 169 on the right to approach the court in the realm of public interest litigation). In B.S. Muddappa (1991) 4 SCC 54, the Supreme Court held that the restricted meaning of "aggrieved person" and the narrow outlook of a "specific injury" has yielded in favour of a broad and wide construction in the wake of public interest litigation; public-spirited citizens, having faith in the rule of law, are rendering great social and legal service by espousing causes of a public nature; they cannot be ignored or overlooked on a technical or conservative yardstick of the rule of locus standi or the absence of personal loss or injury; and the concept of locus standi in public interest litigation is much wider, and takes in its stride anyone who is not a mere "busybody". (Railway Board v. Chandrima Das (2000) 2 SCC 465). In service jurisprudence, however, it is for the aggrieved person to assail the legality of the offending action. A third party has no locus standi to canvass the legality or correctness

¶743

W.P.(C).1329/2020

¶744

-:81:-

¶745

of the action. (R.K. Jain v. Union of India (1993) 4 SCC 119; State of Punjab v. Salil Sabhlok (2013) 5 SCC 1; and B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees Association & Ors. [(2006) 11 SCC 731].

¶746

In the context of locus standi, an applicant may ordinarily fall in any of these categories: (i) "person aggrieved"; (ii) "stranger"; (iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of pro bono publico, though they have no interest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; and the ulterior intent, of some applicants in this category, may be no more than spooking the wheels of administration. The applications of such busy-bodies should be rejected at the threshold. (Jasbhai Motibhai Desai (1976) 1 SCC 671).

¶747

A fanciful or sentimental grievance may not be sufficient to confer locus standi to sue upon the individual. There must be injuria or a legal grievance which can be appreciated and not a stat pro ratione voluntas reasons i.e. a claim devoid of reasons. (Ravi Yashwant Bhoir (2012) 4 SCC 407; Ayaaubkhan Noorkhan Pathan (2013) 4 SCC 465; and D. Jagannathan1). When it is found that a person is not a person aggrieved, then, resultantly, he would lack locus standi to maintain the application. An imaginary injury cannot give a right to sue. (D. Jagannathan).”

¶748

Section 23 of the Maintenance and Welfare of Parents and Senior

¶749

Citizens Act, 2007 deals with transfer of property to be void in certain circumstances and the same reads thus:

¶750

W.P.(C).1329/2020

¶751

-:82:-

¶752

“(1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.

¶753

(2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right.

¶754

(3) If, any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of section 5.”

¶755

As per Section 4 of Act, 2007, a senior citizen, including a parent,

¶756

who is unable to maintain himself from his own earning or out of the property owned by him, shall be entitled to make an application under Section 5 of the Act, and such an application under Section 4 of the Act may be made, (a) by a senior citizen or a parent, as the case may be; or (b) if he is incapable, by

¶757

W.P.(C).1329/2020

¶758

-:83:-

¶759

any other person or organisation authorised by him; or (c) the Tribunal may take cognizance suo motu.

¶760

Sections 4 and 5 of Act, 2007, speak about maintenance, whereas Section 23 speaks about transfer of a property by a senior citizen, by way of gift or otherwise, after the commencement of the Act. As per sub-section (3) of Section 23 of the Act, if any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of Section 5 of the Act. Person, who can maintain a petition or locus standi, for maintenance under Section 4 of the Act, are (i) senior citizen; (ii) if he is incapable, by any other person or organisation authorised by him, whereas in the case of property, (i) any senior citizen, and (ii) if any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2) of Section 23 of the Act, action can be taken on his behalf, by any organisation referred to in the explanation to sub-section (1) of Section 5 of Act, 2007. Explanation to Section 5(1) of the Act reads thus:

¶761

“For the purposes of this section organisation means any voluntary association registered under the Societies Registration Act, 1860 (21 of 1860), or any other law for the time being in force.”

¶762

W.P.(C).1329/2020

¶763

-:84:-

¶764

Having regard to the distinction in Sections 5 and 23 of Act, 2007, it is manifestly clear that the content and intent of the Statute are not to confer any legal right on any person other than the senior citizen and the organisation authorised by him, and the Act, 2007 does not confer any right to any other person, in the case on hand, the neighbour of the petitioner's father, 2^nd respondent, to maintain a petition under Section 23, insofar as property is concerned.

¶765

Legislature in its wisdom, while dealing with maintenance and property, has categorically excluded “any person authorised by the senior citizen”, under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. Neighbour of the father of the petitioner, respondent No.2, has no locus standi to maintain a petition under Section 23 of the Act, 2007.

¶766

As regards the contention that the Maintenance Tribunal ought not to have entertained a complaint preferred by the 2^nd respondent, and issued Exhibit-P10 notice, as no power is conferred on the Tribunal for reviewing its decisions, Kum. Aruna, learned counsel for the petitioner, has relied on a few decisions, which we shall consider.

¶767

W.P.(C).1329/2020

¶768

-:85:-

¶769

65. In Kalabharati Advertising v. Hemant Vimalnath Narichania

¶770

and Ors. [(2010) 9 SCC 437], the Hon’ble Supreme Court, at paragraphs 12 to 14, held as under:

¶771

“12. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasi-judicial orders. In absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed is ultra-vires, illegal and without jurisdiction. (vide: Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar and Anr. AIR 1965 SC 1457 and Harbhajan Singh v. Karam Singh and Ors. AIR 1966 SC 641).

¶772

In Patel Narshi Thakershi and Ors. v. Shri Pradyuman Singhji Arjunsinghji (AIR 1970 SC 1273); Maj. Chandra Bhan Singh v. Latafat Ullah Khan and Ors. (AIR 1978 SC 1814); Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidhyalaya, Sitapur (U.P.) and Ors. (AIR 1987 SC 2186); State of Orissa and Ors. v. Commissioner of Land Records and Settlement, Cuttack and Ors. [(1998) 7 SCC 162]; and Sunita Jain v. Pawan Kumar Jain and Ors. [(2008) 2 SCC 705], this Court held that the power to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. Jurisdiction of review can be derived only from the statute and thus, any order of review in absence of any statutory provision for the same is nullity being without jurisdiction.

¶773

Therefore, in view of the above, the law on the point can be summarised to the effect that in absence of any statutory provision providing for review, entertaining an application for review or under the garb of clarification / modification / correction is not permissible.”

¶774

W.P.(C).1329/2020

¶775

-:86:-

¶776

In Harbhajan Singh v. Karam Singh and Ors. [AIR 1966 SC

¶777

641], action of the Collector in reviewing his earlier order was challenged on

¶778

the ground that there was no provision in the Statute. Going through the statutory provisions in East Punjab (Consolidation and Prevention of Fragmentation) Act, 1951, the Hon’ble Supreme Court held thus:

¶779

“7………………… The Act does not empower the Collector to review an order passed by him under s. 76A. In the absence of any power of review, the Collector could not subsequently reconsider his previous decisions and hold that there were grounds for annulling or reversing the Mahalkari's order. The subsequent order dated February 17, 1959 re-opening the matter was illegal, ultra vires and without jurisdiction. The High Court ought to have quashed the order of the Collector dated February 17, 1959 on this ground."

¶780

Now, let us consider the decisions referred to in Harbhajan

¶781

Singh 's case (cited supra), which are reproduced hereunder:

¶782

“7. In Drew v. Willis [1891] 1 Q.B. 450, Lord Esher, M. R. pointed out that no court [and I would add no authority] has a power of setting aside an order which has been properly made, unless it is given by statute.

¶783

In Hession v. Jones [1914] 2 K.B. 421] Bankes. J. pointed out that the court, under the statue, has no power to review

¶784

W.P.(C).1329/2020

¶785

-:87:-

¶786

an order deliberately made after argument and to entertain a fresh argument upon it with a view to ultimately confirming or reversing it and observed:

¶787

"Then as to the inherent jurisdiction of the Court. Before the judicature acts the courts of Common law had no jurisdiction whatever to set aside an order which had been made. The Courts of Chancery did exercise a certain limited power in this direction. All courts would have power to make a necessary correction if the order as drawn up did not express the intention of the court; the court of Chancery however went somewhat further than that, and would in a proper case recall any decree or order before it was passed and entered; but after it had been drawn up and perfected on court of Judge had no power to interfere with it. This is clear from the Judgment of Thesiger L. J. in the case of in re. St. Nazaire Co. [1879] 12 Ch. D. 88".

¶788

9. In Anantharaju Shetty v. Appu Hegada A.I.R. 1919

¶789

Mad 244 Madras High Court observed as under:

¶790

“It is settled law that a case is not open to appeal unless the statute gives such a right. The power to review must also be given by the statute. Prima Facie a party who has obtained a decision is entitled to keep it unassailed, unless the Legislature had indicated the mode by which it can be set aside. A review is practically the hearing of an appeal by the same officer who decided the case. There is at least as good reason for saying that such power should not be exercised unless the statute gives it, as for saying that another tribunal should not hear an appeal from the Trial Court unless such a power is given to it by statute."

¶791

68. On the aspect of review by an authority, in Naresh Kumar and

¶792

Others v. Government (NCT of Delhi) reported in (2019) 9 SCC 416, the

¶793

W.P.(C).1329/2020

¶794

-:88:-

¶795

Hon'ble Apex Court reiterated the dictum laid down in Kalabharati Advertising 's case (cited supra), and held that it is settled law that the power of review can be exercised only when the statute provides for the same and, in the absence of any such provision in the statute concerned, such power of review cannot be exercised by the authority concerned.

¶796

Going through the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, we do not find any specific provision conferring power of review on the Maintenance Tribunal, whereas there is a remedy of appeal, as against the order of the Tribunal. Further, in Exhibit-P4 common judgment passed in W.P.(C) Nos.35538 of 2015 and 30574 of 2017, it was held by the writ court that the father of the petitioner cannot seek for review of Exhibit-P1 order dated 8.1.2015, by filing Exhibit-P3 application dated 19.09.2015.

¶797

For review and reconsideration of appeal filed before the District Collector, Kannur, this Court ultimately, has decided against the father of the petitioner, in the common judgment in W.P.(C) Nos.35538 of 2015 and 30574 of 2017 dated 02.11.2017. When the father of the petitioner, in law, cannot be permitted to seek for review, a third party, in the case on hand, the 2^nd

¶798

W.P.(C).1329/2020

¶799

-:89:-

¶800

respondent, who is a neighbour of the petitioner's father, cannot be permitted to institute proceedings, by filing a complaint.

¶801

In the light of the above discussion and decisions, Exhibits-P8 to P10

¶802

are quashed. Writ petition is allowed.

¶803

Sd/-

¶804

S.Manikumar, Chief Justice

¶805

Sd/-

¶806

Shaji P.Chaly Judge

vpv

W.P.(C).1329/2020

-:90:-

APPENDIX

PETITIONER'S EXHIBITS:

¶812

EXHIBIT P1	TRUE COPY THE MAINTE THALASSERR	OF THE NANCE Y.	PROCEEDINGS DATED 8.1.2015 OF TRIBUNAL AND SUB COLLECTOR,
EXHIBIT P2	TRUE COPY FATHER OF COLLECTOR,	OF THE THE PE KANNU	COMPLAINT DATED FILED BY THE TITIONER TO THE DISTRICT R.
EXHIBIT P3	TRUE COPY ALLEGEDLY	OF THE FILED	REVIEW PETITION DATED 19.9.2015 BY THE FATHER OF THE PETITIONER.
EXHIBIT P4	TRUE COPY WP(C) NO.3	OF THE 5538/2	JUDGMENT DATED 2.11.2017 IN 015.
EXHIBIT P5	TRUE COPY SUBMITTED OFFICER, M	OF THE BY THE AINTEN	REQUEST DATED 22.11.2017 PETITIONER BEFORE THE PRESIDING ANCE TRIBUNAL.
EXHIBIT P6	TRUE COPY SUBMITTED COLLECTOR,	OF THE BY THE KANNU	REQUEST DATED 07.07.2018 PETITIONER BEFORE THE DISTRICT R.
EXHIBIT P7	TRUE COPY SUBMITTED COLLECTOR,	OF THE BY THE TALIP	REQUEST DATED 7.12.2019 PETITIONER BEFORE THE SUB- ARAMBA.
EXHIBIT P8	TRUE COPY THE 3RD RE	OF THE SPONDE	ORDER DATED 21.08.2019 ISSUED BY NT.
EXHIBIT P9	TRUE COPY NARAYANAN OFFICER, T	OF THE NAMBOO ALIPAR	COMPLAINT FILED BY SRI K P DIRI BEFORE REVENUE DIVISIONAL AMBA.
EXHIBIT P10	TRUE COPY BY THE 1ST	OF THE RESPO	NOTICE DATED 25.11.2019 ISSUED NDENT.

¶813

W.P.(C).1329/2020

¶814

-:91:-

¶815

EXHIBIT P11 TRUE COPY OF THE REPLY DATED 7.12.2019 SUBMITTED BY THE PETITIONER BEFORE THE RDO, TALIPARAMBA.

¶816

//TRUE COPY//

¶817

P.A. TO JUDGE

N.M.Narayanan v. the Maintenance Tribunal

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N.M.Narayanan v. the Maintenance Tribunal

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