Madras High Court
B.Ramasamy vs The District Collector on 18 July, 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18.07.2014 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.P.(MD)No.11210 of 2012 and M.P.(MD)No.1 of 2012 B.Ramasamy .. Petitioner Vs. 1.The District Collector, Namakkal District. 2.The Chairman/Sub-Collector, Maintenance and Welfare of Parents and Senior Citizens Act, Namakkal District. 3.The Superintendent of Police, Namakkal District. 4.The Inspector of Police, Namakkal Police Station, Namakkal District. ... Respondents Writ petition under Article 226 of the Constitution of India, praying for issuance of a writ of mandamus, directing the 4th respondent to implement the order passed by the 2nd respondent in his proceedings Na.Ka.No.1076/2011/M1, dated 11.07.2012, by evicting the petitioner's elder son Jeyakrishnan from the house at S.No.53/5, Door No.4/606.A, Andavar Nagar, Reddiyarpatti Village, Namakkal Taluk, Namakkal District, and to hand-over the possession of the said house to the petitioner. !For Petitioner : Mr.M.Kumar ^For Respondents : Mr.V.Muruganandham, Addl.Govt.Pleader. :ORDER
The petitioner is a senior citizen, aged 72 years. After having put-in a long service, spreading for 36 years, in the Revenue Department of the Government of Tamil Nadu, he retired as a Tahsildar, in the year 2001. He has got two siblings, by name Jeyakrishnan and Suresh Babu. Mr.Jeyakrishnan is running a small industry, employing around 10 workmen under him. The second son is well placed as a Software Engineer in M/s.Tata Consultancy Services. He is now in the United States of America. The petitioner's wife died some time before.
2.According to the petitioner, he had purchased a plot in Survey No.53/5 in Reddiyapatti Village, Namakkal District, benami in the name of his wife. He further claims that after his retirement, he constructed a small house in the said plot, spending his terminal benefits and his savings, in the year 2003. He further claims that after the death of his wife, his eldest son Mr.Jeyakrishnan (not a party to this writ petition) unauthorisedly took possession of the house, took away the documents and dispossessed him from the said house. Thus, he is without shelter for the past four years.
3.While so, he made a representation to the District Collector, Namakkal, on 28.07.2010, seeking action against his son Mr.Jeyakrishnan. Since no action whatsoever was taken by the District Collector, the petitioner filed a writ petition in W.P.(MD)No.2568 of 2012 before this Court seeking appropriate direction. Accordingly, this Court, by order dated 07.03.2012, directed the District Collector to dispose of the said representation, dated 28.07.2010, on merits, as per law, as expeditiously as possible and in any case within a period of two months from the date of receipt of a copy of the order.
4.It appears that the petitioner made yet another petition to the 2nd respondent seeking action against his son Jeyakrishnan. The 2nd respondent is the ?Maintenance Tribunal? constituted under Section 7 of ?the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (in short ?the Act?)? for Namakkal Sub-Division. The 2nd respondent issued notice to Mr.Jeyakrishnan as well as to the petitioner and held an enquiry into the allegations. Finally, the 2nd respondent by his proceedings in Na.Ka.1076/2011/M1, dated 11.07.2012, issued a direction to Mr.Jeyakrishnan to vacate the house in question and hand over possession of the same to the petitioner. The second respondent has further directed that after the demise of the petitioner, Mr.Jeyakrishnan and his brother will inherit the said house in equal moieties. It was also directed that in the event Mr.Jeyakrishnan fails to vacate the house, appropriate action would be taken against him under the Act to prosecute him before the competent Court of Law.
5.The grievance of the petitioner is that despite the said order, Mr.Jeyakrishnan has not vacated the house and he has not allowed the petitioner to take possession of the house to enable him to reside in the same. In this background, the petitioner has now come up with this writ petition seeking a mandamus to the 4th respondent, the Inspector of Police, Namakkal Police Station, to implement the order passed by the 2nd respondent. This writ petition was admitted on 16.08.2012.
6.The 3rd respondent, namely the Superintendent of Police, Namakkal District, has filed a counter, wherein she has stated that at no point of time either the writ petitioner or the Tahsildar, Namakkal, sought for any assistance from the police to enforce the order of the 2nd respondent. She has further stated that already a case has been registered against Mr.Jeyakrishnan in Crime No.1273 of 2012 under Section 24 of Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and the same is pending investigation. It is further contended by the 3rd respondent that the said Act does not contemplate eviction of any person by the Police from a house but, it only contemplates action under Section 24 of the Act. In this case, according to the 3rd respondent, prompt action has been taken under Section 24 of the Act. Thus, the 3rd respondent has prayed for the dismissal of the writ petition.
7.I have heard the learned counsel for the petitioner and the learned Additional Government Pleader appearing for the respondents and I have also perused the records, carefully.
8.At the outset, I have to point out that in this writ petition Mr.Jeyakrishnan against whom the relief is sought for has not been impleaded as a party respondent. On this ground by itself, the writ petition could be dismissed. But, considering the old age of the petitioner and the issues involved in this writ petition, I do not propose to dismiss the writ petition on such a technical ground. On the other hand, I could have ordered suo-motu to implead Mr.Jeyakrishnan as a party to this writ petition, as a respondent so as to afford an opportunity to him in compliance with the principles of natural justice. That course also I do not propose to do, in view of the other complex issues involved in this writ petition because of which this Court is unable to grant the relief as prayed for in the writ petition.
9.The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 has been brought into force to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognised under the Constitution and for matters connected therewith or incidental thereto. Under Section 4 of the Act, it is the duty of the son to maintain parents. In the event, the son fails to do so, parent can very well approach the Tribunal constituted under the Act, under Section 5 of the Act. Under the said provision, if it is found from evidence that the son neglects and refuses to maintain the parent who is unable to maintain himself, then the Tribunal shall order the son to pay maintenance.
10.In the case on hand, the Tribunal has not passed any such order for maintenance. Instead, the Tribunal has directed the son of the petitioner, namely Jeyakrishnan, to vacate the house in which he is residing and hand over possession of the same to the petitioner. For passing such an order, I do not find any provision in the Act empowering the Tribunal. Section 23 of the Act reads as follows:
"23.Transfer of property to be void in certain circumstances.--(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.
(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. (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."
11.In this case, it is not the case of the petitioner that the possession of the house was given to his son Mr.Jeyakrishnan on condition that he shall be provided basic maintenance and basic physical needs. It is not at all the case of the petitioner that such condition was breached by his son Mr.Jeyakrishnan. Thus, Section 23 is not applicable to the facts of the present case. In such view of the matter, the order passed by the Tribunal, directing Mr.Jeyakrishnan to vacate and hand-over possession of the house to the petitioner is non-est in the eye of law.
12.Yet another declaration made by the Tribunal is that after the demise of the petitioner, Mr.Jeyakrishnan and his brother Mr.Suresh Babu will inherit the said house in equal moieties. This declaration is made as though the Tribunal were a civil court. For this also, the Tribunal has got no power. In view of all the above, the order passed by the Tribunal is wholly without jurisdiction and illegal and non-est in the eye of law. Therefore, this Court cannot issue any direction to the respondents to enforce the same.
13.In such view of the matter, the writ petition fails and the same is accordingly dismissed. Connected miscellaneous petition is also dismissed.
Index:yes/no. 18.07.2014 Internet:yes/no. gb To 1.The District Collector, Namakkal District. S.NAGAMUTHU,J gb 2.The Chairman/Sub-Collector, Maintenance and Welfare of Parents and Senior Citizens Act, Namakkal District. 3.The Superintendent of Police, Namakkal District. 4.The Inspector of Police, Namakkal Police Station, Namakkal District. Order in WP(MD)No.11210 of 2012 and MP(MD)No.1/2012 Dated:18.07.2014