Suresh and Subha Suresh v. State of Kerala and The Maintenance Tribunal & Sub Divisional Magistrate, Alappuzha; Janaki and Valsala

**CR** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY ,THE 11TH DAY OF FEBRUARY 2019 / 22ND MAGHA, 1940** # **WP(C).No. 23419 of 2018** ## **PETITIONER/S:** **1 SURESH, AGED 52 YEARS, S/O.K.K.VASU, KARITHALAKKAL HOUSE, WARD NO.4, PANACHIKAD PANCHAYAT, KOTTAYAM. 2 SUBHA SURESH, AGED 45 YEARS, W/O.SURESH,KARITHALAKKAL HOUSE, WARD NO.4,PANACHIKAD PANCHAYAT, KOTTAYAM. BY ADVS. SRI.T.G.SUNIL (PRANAVAM) SRI.C.X.ANTONY BENEDICT SRI.J.OM PRAKASH** ## **RESPONDENT/S:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE CHIEF SECRETARY,**| ||**SECRETARIAT, THIRUVANANTHAPURAM - 695 001.**| |**2**|**THE MAINTENANCE TRIBUNAL & SUB DIVISIONAL**| ||**MAGISTRATE, ALAPPUZHA - 688 001.**| |**3**|**JANAKI, W/O.PADMANABHAN, AGED 83 YEARS,**| ||**VADAKKEVELIPARAMBIL, PERUMBALAM P.O.,CHERTHALA.**| |**4**|**VALSALA, AGED 54, D/O.PADMAKSHY,LAKSHMI NIVAS,**| ||**CHEMBU VILLAGE,P.O.VAIKOM, KOTTAYAM.**| ||**BY ADVS.**| ||**SRI.K.V.SOHAN, STATE ATTORNEY**| ||**SRI.BINDU SREEKUMAR**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 23419/18 2 ## **JUDGMENT** The petitioners make a startling prayer in this writ petition that the Maintenance Tribunal, constituted under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as Act for short) and the Government of Kerala be directed to pay the 1[st] petitioner Rs.2 lakhs as compensation, allegedly because he was arrested by the Police on the orders of the Maintenance Tribunal issued under Section 6(3) of the Act. 2. The petitioners assert that the Maintenance Tribunal obtains no power to issue a warrant of arrest to compel appearance of parties before it in a proceedings under Section 23 of the Act because, according to them, such power could be exercised by the Tribunal under the Code of Criminal Procedure, 1973 only for the purpose of securing implementation of an order for maintenance awarded to a senior WPC 23419/18 3 citizen and not in any other event. 3. The petitioners, thereafter allege factually that they had no notice of the proceedings before the Maintenance Tribunal and it was therefore, that they had not appeared before it; but that, even without adverting to this, the Tribunal had issued an arrest warrant, a copy of which has been placed on record as Ext.P5, constraining the police to arrest the 1[st] petitioner and detain him in a police station for over a day. They contend that the warrant of arrest was issued in gross violation of the provisions of the Act and therefore, that the Maintenance Tribunal is liable to pay them compensation; and consequently that the Government is bound to pay such amounts under the principles of Constitutional tort. 4. Interestingly, the hypostasis of the petitioner's claim against the Government is that the Maintenance Tribunal is its subservient, since it has been appointed by the WPC 23419/18 4 Government under the provisions of the Act and, therefore, that they are thus vicariously liable for the mistakes committed by the Tribunal. He relies on Section 7 of the Act to say that it is the Government which appoints the Tribunal and axiomatically that they are responsible for excess committed by the Tribunal, especially when it acts in contravention of the powers under the Statute. On such allegations, the petitioners pray that the State of Kerala and the Maintenance Tribunal be directed to pay them compensation as afore prayed for. 5. The learned State Attorney, Sri. K.V. Sohan, appearing on behalf of the State of Kerala and the Maintenance Tribunal, submits that this writ petition is completely misdirected for many reasons. For the first, he says that the argument that the Maintenance Tribunal is an “employee” of the Government is erroneous, since it is a Statutory Body; for the second, that the State cannot be held WPC 23419/18 5 responsible, even vicariously, for the actions of the Tribunal which acts as an independent judicial entity; and for the third, he points out that even going by the averments of the petitioners in this writ petition, the State and its machinery had acted without any fault, while implementing the warrant of arrest issued by the Maintenance Tribunal and therefore, that no liability can be cast against it or its functionaries. He finally contends that the third prayer in this writ petition, namely, to transfer the maintenance application involved in this case to another Tribunal, has already been implemented and therefore, that nothing further remains in this writ petition. 6. On a consideration of the above submissions, it is indubitably evident that the grievance of the petitioner is with respect to his alleged illegal arrest, consequent to Ext.P5 warrant. He vehemently asserts that the Maintenance Tribunal did not obtain the WPC 23419/18 6 jurisdiction to issue the said warrant, particularly, because the powers vested with the Tribunal under Section 6(3) of the Act is only for the purpose of securing attendance of the parties in relation to adjudication of maintenance to the senior citizen and nothing else. He thus predicates that the Maintenance Tribunal has acted in excess of jurisdiction and therefore, that it is its responsibility to compensate the petitioner for violation of his fundamental rights; and consequently that this Court is constitutionally enjoined to grant him compensation under the principles of Constitutional tort. 7. When I analyse the assertions and contentions of the petitioner as afore, the first thing that engages my attention is the assertion of the petitioner that the Tribunal is an “employee” of the Government of Kerala. However, I am certain that this submission cannot obtain imprimatur in law because the WPC 23419/18 7 Tribunal is constituted under Section 7 of the Act which reads as under: 7. Constitution of Maintenance Tribunal:(1) The State Government shall within an period of six months from the date of the commencement of this Act, by notification in the Official Gazette, constitute for each subdivision one or more Tribunals as may be specified in the notification for the purpose of adjudicating and deciding upon the order for maintenance under Section 5. - (2) The Tribunal shall be presided over by an officer not below the rank of Sub-Divisional Officer of a State. - (3) Where two or more Tribunals are constituted for any area, the State Government may, by general or special order, regulate the distribution of business among them. - 8. Even a cursory reading of the afore extracted provisions makes it luculent that the WPC 23419/18 8 State Government only constitutes the Tribunal by notification, as is statutorily mandated and the Act then stipulates that the Tribunal shall be presided by an Officer not below the rank of a Sub Divisional Officer of the State. Nowhere does the Statute say that the Tribunal or the Presiding Officer are appointed by the Government; but on the contrary, it unequivocally uses the word “constitute”. Hence, when the Government constitutes a Maintenance Tribunal, with a statutorily prescribed Officer to preside over it, the said Tribunal acts as a judicial entity and consequently cannot and does not act under the dictates of the Government, as if were its servant; and therefore, the State cannot be held responsible for any of its action, including orders allegedly issued in excess of jurisdiction. This is particularly vital because it is now well settled that when any Authority, Tribunal, Court or other Statutory Forum acts judicially, it is protected WPC 23419/18 9 either by the Kerala Judicial Officers Protection Act, 1963 or the Judges (Protection) Act, 1985, as the case may be. 9. In fact, as early as in the year 1991, a learned Single Judge of this Court has unambiguously declared the law, in **Sankara** **Pillai v. Chandran [1991(1)KLT 586]** , that even an Assessment Authority under the Building Tax Act, performs its functions judicially; and therefore, that it is entitled to the benefit of the Kerala Judicial Officers Protection Act, 1963. The views of the learned Judge in the said judgment is available in paragraph 7 of the judgment and is therefore, extracted for easy reference: 7. _Under S.17 of the Building Tax Act the assessing authority, the appellate authority and the revisional authority under the Act are conferred with same powers as are vested in a civil court under the Code of Civil Procedure, 1908 when trying a_ WPC 23419/18 10 _suit, in respect of the following matters, namely:-_ _a) enforcing the attendance of any person and examining him on oath or affirmation;_ _b) compelling the production of documents: and_ _c) issuing commissions._ _Specific mention of “other person acting judicially” in S.2 of the Kerala Judicial Officers Protection Act, 1963 is_ _comprehensive enough to include the assessing authority under the Kerala Building Tax Act. As the assessing authority while determining the annual value has to give notice to the affected person and as he has to decide it on a consideration of the factors mentioned under S.6(4) and as the finding is appealable and revisable there is no merit in the contention that the proceeding of the assessing authority is not in the nature of judicial proceeding. “Judicial proceeding” as defined under the_ WPC 23419/18 |11| |---| |_Interpretation_<br>_and_<br>_General_| |_Clauses Act 1125 (Act 7 of 1125)_| |_is of wider amplitude and makes_| |_the position clear that it is not_| |_confined to proceedings before_| |_the civil or criminal courts._| |_S.2(19)_<br>_defines_<br>_“Judicial_| |_Proceedings” as proceeding in the_| |_course of which evidence is or_| |_may be legally taken. As_| |_“Judicial Proceeding” includes_| |_any proceeding in the course of_| |_which evidence is legally taken,_| |_it has to be held that the_| |_proceeding of the assessing_| |_authority under the Act is a_| |_“judicial proceeding”._| 10. This view has stood the test of time and subsequently, in the year 2016, a learned Division Bench of this Court analysed these issues in greater detail in **Sujanapal v. State of Kerala [2016(2)KLT 823]** . In paragraph 25 of the said judgment, the distinction in forensic consequences between the action of a Judge who misuses his powers for personal gain and that of WPC 23419/18 12 a Judicial Officer issuing an erroneous order was dealt with exhaustively. The conclusions in the said judgment is deserving a full reading and I, therefore, extract the same as under: 25. _The question to be decided is whether the writ petitioner is liable to be compensated for the injury allegedly suffered by him due to the exercise of judicial power by the 3[rd] respondent. The public law right to compensation for violation of fundamental rights is an extension into the realm of Constitutional Law of the Principles of Tort. Thus the Principles of Law of Torts would apply in such cases as well. A Judge may be liable to be proceeded against for a wrongful act done by him while acting in his personal capacity. He may also become liable to be proceeded against if he misuses his judicial power for personal gains or where the erroneous use of judicial power is shown to be_ WPC 23419/18 13 _dishonest or mala fide. Except in these exceptional circumstances, a judicial officer is protected from legal action of whatever nature for wrong orders rendered by him. Thus, when a judicial officer is acting judicially, even if he commits an error and passes an erroneous order, he would be protected from legal action. Otherwise, the consequence of every order reversed in appeal could be an action against the author of the original order for damages, which cannot be conducive to public good and indeed to the rule of law. The maintenance of the independence of the judiciary being a larger public interest which overrides the public law rights of individual citizens, an action for compensation against a judicial officer for the issuance of an erroneous order is also opposed to public interest. The Judicial Officer would also be protected from any judicial_ WPC 23419/18 14 _proceeding in a case like the present one._ 11. Both the afore referred judgments drew their spirit from an earlier judgment of the Hon'ble Supreme Court in **Jaswant Sugar Mills Ltd** **Meerut v. Lakshmi Chand and Others [AER 1963** **Supreme Court 677]** , wherein the Hon'ble Supreme Court succinctly drew a difference between a Judicial act and a Non-judicial Act. This is available in paragraph 13 of the said judgment and reads as under: _13. To make a decision or an act_ _judicial, the following criteria must be satisfied:_ _1) it is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of pre-existing legal rules;_ - _2) it declares rights or imposes upon parties obligations affecting their civil rights; and_ - _3) that the investigation is subject to certain procedural attributes_ WPC 23419/18 15 _contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on questions of fact, and if the dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact._ 12. Their Lordships, then applying these tests, declared that the jurisdiction of the Conciliation Officer under the Industrial Disputes Act, in granting or refusing permission to alter the term of employment of workmen at the instance of the employer, is judicial in nature, since he is required to investigate and ascertain the facts; to apply objective standards to the facts so found and being enjoined thereafter to declare whether the employer has made out a case for granting permission to alter the terms of employment of WPC 23419/18 16 its employees. 13. In the backdrop of the afore survey of law, I now proceed to analyse the specific submissions made before me by Sri. J. Omprakash, the learned counsel for the petitioner. 14. I notice that Sri. Omprakash is relying on a judgment of the Hon’ble Chhattisgarh High Court, reported as **Sunderlal Patel and Antother** ## **v. High Court of Chhattisgarh and Others [2017** **KHC 3951],** wherein the petitioners therein were prosecuted and sentenced to a term of five years, for offences under certain Sections of the Narcotic Drugs and Psychotropic Substances Act, 1985 but in appeal, the Hon’ble High Court reduced their sentence to the period already served by them. However, it transpires that in spite of this, the petitioners therein were released only 113 days later and they, therefore, filed the writ petition, leading to the above judgment, alleging that even though their appeal was allowed by the High Court, they WPC 23419/18 17 were illegally detained for a further period of 113 days; and therefore, that they were entitled to be compensated by the State. The learned Judge therein, found on facts that on account of the fault of the “Reader” attached to the concerned Sessions Court the judgment of the High Court had not been brought to the attention of the Sessions Judge, thus leading to the delay in release of the petitioners therein, concluded, after dealing in detail with the principles of vicarious liability, that the wrong committed by the Officer of the Sessions Court, who is an employee of the Government, makes him responsible, along with the Sessions Court and the State for compensating the petitioners therein. However, what is pertinent in this case is that the petitioners therein had not sought compensation personally from the Judicial Officer, who was not even arrayed as a respondent in the said case; and the learned Judge only ordered that the State, which is also WPC 23419/18 18 the prosecuting agency, is responsible vicariously to compensate the victims for the fault committed by its servant-employee of the Court. 15. I am afraid that the facts presented in the case at hand are in complete variance with the facts that were noticed by the learned Judge of the Hon’ble Chhattisgarh High Court and the conclusions in the afore cited judgment can, therefore, obtain no relevance to the present case. As is conceded by the petitioners herein, the Maintenance Tribunal in this case only issued an order under a particular provision of the Act to secure the presence of the petitioners and even they do not impel an allegation that the State acted, in any manner, in excess of their powers, while executing the warrant of arrest. Essentially therefore, the petitioner's case is that the Maintenance Tribunal has acted in excess of jurisdiction and the axiomatic question therefore, is whether WPC 23419/18 19 taking all such alleagations to be true, the said Tribunal would be responsible to compensate the petitioner under the principles of Constitutional Tort. Pertinently, Sri. J. Omprakash, the learned counsel for the petitioners, expressly concedes that the Maintenance Tribunal, constituted under the Act, is a judicial entity and consequently, it is now needless to restate, going by the precedents noticed by me earlier, that no Judicial Officer can be so held responsible under the prescriptions of the Kerala Judicial Officers Protection Act, 1963 and the Judges (Protection) Act, 1985. This is more so because, the petitioner does not have a case against the Government at all, but only against the Maintenance Tribunal and incredulously, he asserts that the said Tribunal is a servant of the Government, thus making the latter vicariously liable even for the erroneous orders of the former. This aspect has already been WPC 23419/18 20 answered by me in the afore paragraphs and therefore, it is ineluctable that the petitioner’s claim for compensation against the Maintenance Tribunal on these grounds cannot succeed. 16. Presumably, securing my mind as afore, Sri. J. Omprakash then attempted to invoke Article 13(2) of the Constitution of India to seek a declaration that both the Kerala Judicial Officers Protection Act, 1963 and the Judges (Protection) Act, 1985 are ultravires, unconstitutional and hence ab-into void. I do not understand the purport of this submission at all, because there is no such challenge in the writ petition and I find no reason to allow the learned counsel to porpoise such a contention when there are no supporting pleadings or reliefs sought for in this writ petition. Further, I do not see the grounds on which these assertions are being made and how it is sought to be supported within the legally acceptable WPC 23419/18 21 parameters. I, therefore, have no option but to repel these submissions of Sri. Omprakash, without entering into its merits. 17. Once I conclude on the afore lines on the issue relating to the liability of a judicial forum, I see no reason to specifically answer the contentions of the petitioner that the Maintenance Tribunal could not have issued a warrant of arrest to enforce the attendance of the respondent before it because as has been declared in **Sujanapal** ( _supra_ ), even if an officer, while acting judicially, commits an error or issues an erroneous order, he/she would be fully protected from the legal action. In this case, the petitioner does not have a case that the Maintenance Tribunal has misused its judicial power for personal gain or that it has been used for dishonest or _malafide_ reasons but only that it has exercised jurisdiction erroneously. Hence, even taking the allegations of the petitioner to be correct, no claim for WPC 23419/18 22 damages can be raised by him against the Maintenance Tribunal, going by the conclusions in **Sujanapal** (supra). I, therefore, leave all their contentions on the powers of the Maintenance Tribunal to issue a warrant of arrest while exercising the powers under Section 23 of the Act and I see no reason to state affirmatively on it in these proceedings because the limited prayer of the petitioner is only for compensation from the Maintenance Tribunal and the State of Kerala. In the afore circumstances, I dismiss this writ petition; recording that the fourth prayer in this writ petition, which is the only prayer I could have considered, namely, to transfer the maintenance case to another Tribunal, has already been done, pending this lis. This writ petition is thus dismissed, but I refrain from making any order as to costs, taking into account the specific circumstances referred to herein; and consequently, direct the WPC 23419/18 23 parties to suffer their respective costs. SD/- **DEVAN RAMACHANDRAN** RR **JUDGE** WPC 23419/18 24 APPENDIX ## PETITIONER'S/S EXHIBITS: |EXHIBIT P1.|TRUE COPY OF SETTLEMENT DEED DATED| |---|---| ||02.02.2015 EXECUTED BY THE| ||RESPONDENT.| |EXHIBIT P2.|TRUE COPY OF PLAINT O.S.NO.208/2015| ||OF THE MUNSIFF COURT, CHERTHALA.| |EXHIBIT P3.|TRUE COPY OF ORDER DATED 25.03.2015| ||IN I.A.NO.1162/2015 IN| ||O.S.NO.208/2015 OF THE ADDL. MUNSIFF,| ||CHERTHALA.| |EXHIBIT P4.|TRUE COPY OF PLAINT IS| ||O.S.NO.547/2015 DATED 04.08.2015| ||FILED BY THE 5TH RESPONDENT BEFORE| ||THE MUNSIFF COURT, CHERTHALA.| |EXHIBIT P5.|TRUE COPY OF WARRANT OF ARREST ISSUED| ||BY THE 2ND RESPONDENT DATED| ||11.05.2018.| |EXHIBIT P6.|TRUE COPY OF AFFIDAVIT DATED| ||18.06.2018 OF SHRI.THANKAPPAN,| ||S/O.SANKARAN, AYERKUNNAM.| |EXHIBIT P7.|TRUE COPY OF AFFIDAVIT DATED| ||18.06.2018 OF SHRI.JOHNSON,| ||S/O.MATHAI, ETTUMANUR.| |EXHIBIT P8.|TRUE COPY OF APPLICATION FILED BY THE| ||4TH RESPONDENT U/S.23 OF SENIOR| ||CITIZENS MAINTENANCE ACT.| ## RESPONDENTS' EXHIBITS: EXT. R2(A) TRUE COPY OF THE APPLICATION SUBMITTED BY RESPONDENT NO.3 BEFORE THE MAINTENANCE TRIBUNAL, ALAPPUZHA. EXT. R2(B) TRUE COPY OF THE NOTICE SENT FOR APPEARANCE ON 09.04.2018. EXT. R2(C) TRUE COPY OF THE NOTICE DATED 18.04.2018. WPC 23419/18 25 EXT. R2(D) TRUE COPY OF THE WARRANT DATED 11.05.2018 EXT. R2(E) TRUE COPY OF THE WARRANT DIRECTING PRODUCTION OF COUNTER PETITIONER SRI. SURESH ON 18.06.2018. EXT. R2(F) TRUE COPY OF THE REPORT OF THE CONCILIATION OFFICER.