Prasad @ Purushothaman v. Kerala Women's Commission and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 7TH DAY OF JULY 2017/16TH ASHADHA, 1939 WP(C).No. 17778 of 2010 (V) ---------------------------- PETITIONER : ------------------- PRASAD @ PURUSHOTHAMAN, AGED 40 YEARS, S/O. SREEDHARAN NAMBOOTHIRI, CHERUVATHOOR MANA,, CHALAVARA ROAD, KAILIYAD, KOLAPPULLI, PALAKKAD, NOW RESIDING AT INTERNATIONAL EXPORTS NO.4, BAZAR GATE STREET, FORT, MUMBAI. BY ADV. SRI.P.V.GEORGE(PUTHIYIDAM) RESPONDENTS : ------------------------- 1. KERALA WOMEN'S COMMISSION, REP. BY DIRECTOR, P.M.G., PATTOM.P.O., THIRUVANANTHAPURAM. 2. JAMEELA, D/O. A.V.ALI SAHEEB, THAIKKANDI PARAMBIL, NEAR CHITTILAPPILLY GROUND,, CHITTILAPPILLY P.0. THRISSUR. 3. ABDUL KARIM, S/O USMAN, THIRUTHIKKATTIL VEEDU, ANESWARAM,, VADAKKUM MURI.P.O., THRISSUR. R1 BY ADV. SMT.A.PARVATHY SANJAY R2 BY ADV. SRI.C.PRABIN BENNY R3 BY ADVS. SRI.BABU KARUKAPADATH SRI.JAGAN GEORGE SRI.KANDAMPULLY RAHUL SRI.K.A.NOUSHAD SRI.P.G.PRAMOD SMT.M.A.VAHEEDA BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17778 of 2010 (V) ## APPENDIX ## PETITIONER'S EXHIBITS : EXT.P1 : TRUE COPY OF THE ENDORSEMENT MADE BY THE PARTIES ON 7.4.2006 AT PETITION REGISTER KEPT AT SHORNUR POLICE STATION. EXT.P2 : TRUE COPY OF SUMMONS ALONG WITH PETITION EXT.P3 : TRUE COPY OF THE APPLICATION SUBMITTED BY THE 2ND RESPONDENT BEFORE 1ST RESPONDENT ALONG WITH SUMMONS EXT.P4 : TRUE COPY OF THE SUMMONS DATED 19.5.2010 WITH COPY OF COMPLAINT. ## RESPONDENTS' ANNEXURES : ANNEXURE R1(a) : TRUE COPY OF THE APPLICATION DATED 9.11.08 ANNEXURE R1(b) : TRUE COPYH OF THE LETTER NO.C7/2729/TSR/2008 DATED 26.7.10 /TRUE COPY/ P.A TO JUDGE AV **“CR”** ## **ANIL K. NARENDRAN, J. ----------------------------------W.P.(C).No.17778 of 2010 ----------------------------------Dated this the 7[th] day of July, 2017** ## **JUDGMENT** The petitioner has filed this writ petition seeking a writ of certiorari to quash Ext.P3 complaint dated 29.05.2008 of the second respondent, filed before the Kerala Women's Commission, the first respondent herein, and also Ext.P4 notice issued by the said Commission dated 19.05.2010, by which the petitioner was asked to appear in person in the sitting scheduled on 14.06.2010. The petitioner has also sought for other consequential reliefs. 2. On 09.06.2010, this Court admitted the writ petition on file and issued notice to the respondents. This Court has also granted an interim order staying all further proceedings pursuant to Ext.P4 notice issued by the first respondent Commission, pending disposal of the writ petition. The said interim order is still in force. 3. A statement has been filed on behalf of the first respondent Commission, contending that Ext.P4 notice issued by the said Commission, based on Ext.P3 complaint made by the second respondent, is well within its powers under Section 17 of the Kerala Women's Commission Act, 1990. 4. Heard learned counsel for the petitioner, learned Standing Counsel for the first respondent Commission and also W.P.(C).No.17778 of 2010 2 learned counsel for the third respondent. 5. The second respondent submitted Ext.P3 complaint dated 29.05.2008 before the first respondent Commission seeking its interference for the recovery of money and gold ornaments alleged to have been entrusted with the writ petitioner, through the third respondent herein, in connection with a land deal. 6. According to the petitioner, the allegations contained in Ext.P3 complaint dated 29.05.2008 do not make out a case of 'unfair practice', as defined under clause (i) of Section 2 of the Kerala Women's Commission Act, 1990. Since the main ground raised in this writ petition is as to the maintainability of Ext.P3 complaint filed by the second respondent, which is still pending before the first respondent Commission, this Court need not go into the factual aspects of the dispute between the petitioner and the second respondent. 7. The first respondent Commission is a creation of a statute, namely, the Kerala Women's Commission Act, 1990 (for brevity, 'the Act') and its powers are circumscribed by the provisions contained in the said Act, which is enacted for the constitution of a Women's Commission to improve the status of women in the State of Kerala and to enquire into 'unfair practices' affecting women and for matters connected therewith or incidental W.P.(C).No.17778 of 2010 3 thereto. Clause (i) of Section 2 of the Act define 'unfair practice' to mean any distinction, exclusion or restriction made on the basis of sex for the purpose of or which has the effect of impairing or nullifying the recognition, enjoyment or exercise by women of fundamental constitutional rights, or of human rights, or of fundamental freedom in the political, economic, social, cultural, civil or any other field or the infringement of any rights or benefit conferred on women by or under the provisions of any law for the time being in force or the mental or physical torture or sexual excess on women. 8. Section 15 of the Act deals with the powers of the Commission. Sub-section (1) of Section 15 provides that, the Commission shall, for the purpose of any inquiry under the said Act, have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908 (for brevity, 'the Code') in respect of the following matters, namely, (a) summoning and enforcing the attendance of any witness and examining him; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public records or copy thereof from any public office; and (e) issuing commissions for the examination of witnesses. Going by sub-section (2) of Section 15, any proceeding before the Commissions shall be W.P.(C).No.17778 of 2010 4 deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code, 1860 and the Commission shall be deemed to be a court for the purpose of Section 195 of the Code of Criminal Procedure, 1973. 9. Section 16 of the Act deals with functions of the Commission. Clause (i) of sub-section (1) of Section 16, which deals the function of the Commission to inquire into any 'unfair practice', reads thus; ## “ **16. Functions of the Commission.-** - (1) The Commission shall perform all or any of the following functions, namely:- - (i) inquire into any unfair practice, take decision thereon and to recommend to the Government the action to be taken in that matter. xxx xxx xxx ” 10. Section 17 of the Act deals with inquiry into 'unfair practices'. As per sub-section (1) of Section 17, the Commission shall inquire into any 'unfair practice', (a) on receiving a written complaint from any woman alleging that she has been subjected to any 'unfair practice' or on a similar complaint from any registered women's organisation; (b) on its own knowledge or information; or (c) on any request from the Government. Sub-section (2) of Section 17 provides that, where the complaint has been made under clause (a) of sub-section (1), the Commission may, before the issue of any W.P.(C).No.17778 of 2010 5 process to the person complained against, cause a preliminary investigation to be made by the Director appointed in terms of Section 12 of the Act, in such manner as it may deem fit, for the purpose of satisfying itself that the complaint requires to be enquired into. Sub-section (3) of Section 17 provides further that, where the person against whom the complaint has been made, appears and shows cause or fails to appear on the day appointed for that purpose, the Commission may proceed to inquire into the matter in the complaint and take a decision thereon and if the Commission finds that there is 'unfair practice', it shall recommend to the Government the action to be taken thereon or initiate prosecution. Going by sub-section (4) of Section 17, the Government shall, within two months from the date of receipt of the recommendation of the Commission under sub-section (3), take a decision thereon and intimate the same to the Commission. 11. Section 18 of the Act, which deals with initiation of prosecution, provides that if, after investigation into any complaint under Section 17, the Commission is satisfied that a person has committed any criminal offence and that he should be prosecuted in a court of law for such offence, then it may pass an order to that effect and initiate prosecution of the person concerned, if there is no necessity for prior sanction, and if prior sanction of any authority is W.P.(C).No.17778 of 2010 6 required for such prosecution, then notwithstanding anything contained in any law, such sanction shall be granted by that authority within thirty days of the request by the Commission and if such sanction is not granted within the said period such sanction shall be deemed to have been granted by that authority. 12. A scanning of the provisions under Sections 15 to 18 of the Act would make it explicitly clear that the Kerala Women's Commission is only a fact-finding body and not a court. Though, under sub-section (1) of Section 15, the said Commission is conferred with the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, the same is only in respect of matters specified in clauses (a) to (e) thereof and not for any other purpose. Under clause (i) of sub-section (1) of Section 16, the Commission can only inquire into any 'unfair practice', as defined under clause (i) of Section 2, take decision thereon and to recommend to the Government the action to be taken in that matter. The said provisions do not empower the said Commission to entertain a complaint from any women or registered women's organisation, relating to pure civil or criminal disputes, or inquire into any such complaints on its own knowledge or information, or on any request from the Government. This is for the reason that, the inquiry contemplated under Section 17 of the Act is a fact-finding W.P.(C).No.17778 of 2010 7 inquiry for the limited purpose of ascertaining as to whether a women has been subjected to any 'unfair practice', as defined under clause (i) of Section 2 of the Act. Under Section 18 of the Act, if, after investigation into any such complaint under Section 17, the Commission is satisfied that a person has committed any criminal offence and that he should be prosecuted in a court of law for such offence, then the Commission may pass an order to that effect, and initiate prosecution of the person concerned, in terms of the conditions stipulated in Section 18. 13. In the matter of inquiry into any 'unfair practice', as defined under clause (i) of Section 2 of the Act, the first respondent Commission, which is a creation of a statute, cannot assume powers which are inconsistent with the express provisions of Section 17. In such an inquiry, the Commission cannot assume powers which are not specifically conferred on it under the express provisions of the said Act. Therefore, the first respondent Commission, while conducting an inquiry into any 'unfair practice', as contemplated under Section 17, cannot transgress into jurisdiction of the regular civil or criminal courts; or that of any other courts or tribunals constituted under various enactments, which are conferred with the jurisdiction exercised by any civil court or criminal court, in respect of suits and other proceeding of the nature referred to in those W.P.(C).No.17778 of 2010 8 enactments; like the Family Courts constituted under the Family Courts Act, 1984 which are exercising the jurisdiction of any district court or any subordinate civil court in respect of suits and proceeding of the nature referred to in the Explanation to subsection (1) of Section 7 of the said Act; the jurisdiction of a Magistrate of the First Class under Chapter IX of the Code of Criminal Procedure, 1973 relating to order for maintenance of wife, children and parents; etc. 14. The main ground raised in this writ petition is that, the allegations contained in Ext.P3 complaint made by the second respondent dated 29.05.2008 do not make out a case of 'unfair practice' as defined under clause (i) of Section 2 of the Act and as such, the said complaint is not maintainable before the first respondent Commission. As already noticed, sub-section (2) of Section 17 of the Act mandates that, where the complaint has been made under clause (a) of sub-section (1), the first respondent Commission may, before the issue of any process to the person complained against, cause a preliminary investigation to be made by the Director appointed in terms of Section 12 of the Act, in such manner as it may deem fit, for the purpose of satisfying itself that the complaint requires to be enquired into. 15. It is trite law that, any order passed by an authority W.P.(C).No.17778 of 2010 9 without jurisdiction is void and non est in the eye of law. In **Union** ## **of India v. Association of Unified Telecom Service Providers** **of India (2011 (10) SCC 543)** the Apex Court reiterated that, an order passed without jurisdiction would be a nullity. It will be a coram non judice and non est in the eye of the law. Principle of res judicata would not apply to such cases. Para.60 of the said decision reads thus; “ **60.** In **Chandrabhai K. Bhoir v. Krishna Arjun Bhoir (2009 (2) SCC 315)** this Court relying on **Chief Justice of A.P. v. L.V.A. Dixitulu (1979 (2) SCC 34)** , **Union of India** **v. Pramod Gupta (2005 (12) SCC 1)** and **National Institute of Technology v. Niraj Kumar Singh (2007 (2) SCC 481)** has held: " ..... an order passed without jurisdiction would be a nullity. It will be a coram non judice and non est in the eye of the law. Principle of res judicata would not apply to such cases". 16. In **Zuari Cement Ltd. v. Employees' State** ## **Insurance Corporation (2015 (7) SCC 690)** the Apex Court held that, where there is want of jurisdiction, the order passed by the Court/Tribunal is a nullity or non est. What is relevant is whether the Court had the power to grant the relief asked for. 17. Relying on the principles laid down by the Apex Court in Zuari Cement's case (supra), a Division Bench of this Court in ## **Manager, St. Dominic's College, Kanjirappally v. Joseph** W.P.(C).No.17778 of 2010 10 **Chacko and others (2016 (4) KHC 69)** held that, in the absence of power conferred by the Statute, the parties cannot confer jurisdiction by consent. Objection as to want of jurisdiction can be raised at any stage and the fact that the parties had earlier acquiesced and submitted to the proceedings before an authority or court which has no jurisdiction is of no consequence and that an order passed by such an authority or court is non est for want of jurisdiction. Para.14 of the said judgment reads thus; “ **14.** Principles laid down by the Apex Court makes it clear that, in the absence of power conferred by the Statute, the parties cannot confer jurisdiction by consent and that the High Court also cannot confer jurisdiction on such an authority. It is also evident that, objection as to want of jurisdiction can be raised at any stage and the fact that the parties had earlier acquiesced and submitted to the proceedings before the Court which has no jurisdiction is of no consequence and that an order passed by such an authority or Court is non est for want of jurisdiction.” 18. In view of the law laid down in the decisions referred to supra, in the matter of inquiry into any 'unfair practice', as defined under clause (i) of Section 2 of the Act, the first respondent Commission cannot assume powers which are inconsistent with the express provisions of Section 16(1)(i) or Section 17 or Section 18 of the Act. Any order passed by the first respondent Commission without jurisdiction, i.e., assuming powers which are inconsistent W.P.(C).No.17778 of 2010 11 with the express provisions of the aforesaid sections of the Act, would be a nullity. It will be a coram non judice and non est in the eye of the law. In the absence of powers conferred by the Act, the parties cannot confer jurisdiction on the first respondent Commission by consent. Therefore, the fact that the parties had acquiesced and submitted to the proceedings before the first respondent Commission, which has no jurisdiction, is of no consequence since an order passed by the Commission in such proceedings is non est for want of jurisdiction. 19. Since Ext.P3 complaint made by the second respondent dated 29.05.2008 is still pending consideration, the petitioner shall raise the question of maintainability of the said complaint by filing an appropriate application before the first respondent Commission. On such application being filed, the first respondent Commission shall pass orders thereon, deciding the question of maintainability as a preliminary issue, in the light of the law laid down in this judgment. Such orders shall be passed with notice to the petitioner and also to the second and third respondents, and after affording a reasonable opportunity of being heard. 20. The learned counsel for the petitioner would submit that the petitioner may be permitted to appear before the first respondent Commission through an advocate, so as to enable him W.P.(C).No.17778 of 2010 12 to raise the question of maintainability of Ext.P3 complaint in an effective manner by advancing legal contentions. 21. Section 30 of the Advocates Act, 1961 deals with right of advocates to practise. Section 30 of the Act provides that, subject to the provisions of the said Act, every advocate whose name is entered in the common roll shall be entitled as of right to practise throughout the territories to which the said Act extends (i) in all Courts including the Supreme Court; (ii) before any tribunal or person legally authorised to take evidence; and before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise. The Central Government, in exercise of its powers under sub-section (1) of Section 3 of the Advocates Act has issued Gazette notification No.S.O.1349(E) dated 9.6.2011, notifying 15.6.2011 as the date on which Section 30 of the Advocates Act shall come into force. 22. In **Latha Sumam A. v. District Collector, Alappuzha and others (2013 (2) KLT 233)** this Court held that, Section 30 of the Advocates Act, was lying dormant right from the date of incorporation, till the parliament decided to give effect to the said provision with effect from 15.6.2011. By virtue of the said provision, the provisions contained in various statutes, restricting the right of a lawyer, placing an embargo with regard to the right to appear W.P.(C).No.17778 of 2010 13 before the concerned forum/court/tribunal has rather become watered down. 23. **Prakash Joseph v. M/s.Malabar Cements Ltd. and** **another (2014 (4) KLT 269)** a Division Bench of this Court held that, Section 30 of the Advocates Act, 1961 confer right on an advocate, to appear before any tribunal or person legally authorised to take evidence. The phrase 'legally authorised' denotes the tribunal or person who has been authorised by a statute or statutory rules, to take evidence. 24. In the instant case, as per Sub-section (1) of Section 15 of the Kerala Women's Commission Act, the first respondent Commission is authorised to summon and examine witnesses and it is also authorised to issue commissions for the examination of witnesses. That being the status of the first respondent Commission, the right of an advocate to practise before the said Commission, in view of the provisions under Section 30 of the Advocates Act, 1961 cannot be taken away. In the result, this writ petition is disposed of with the following directions; (i) on receipt of a certified copy of this judgment, the first respondent Commission shall issue fresh notice to the parties in Ext.P3 complaint dated 29.5.2008; W.P.(C).No.17778 of 2010 14 (ii) on receipt of such notice, the petitioner shall file an application before the first respondent Commission, through an advocate, raising the question of maintainability of Ext.P3 complaint, as a preliminary issue; (iii) on such application being filed, the first respondent Commission shall pass appropriate orders thereon, by deciding the question of maintainability as a preliminary issue, in the light of the law laid down in this judgment, after affording a reasonable opportunity of being heard to the parties concerned/their advocates; (iv) for deciding the question of maintainability as a preliminary issue, the personal appearance of the petitioner shall not be insisted upon; and (v) based on the decision on the question of maintainability, the first respondent Commission shall decide the further course to be taken on Ext.P3 complaint. Sd/- **ANIL K.NARENDRAN JUDGE** AV