Kerala High Court
Abdul Kader Mohammed Iqbal vs The District Collector on 22 July, 2020
Equivalent citations: AIRONLINE 2020 KER 492
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
WEDNESDAY, THE 22ND DAY OF JULY 2020 / 31ST ASHADHA, 1942
WP(C).No.14801 OF 2020
PETITIONER:
ABDUL KADER MOHAMMED IQBAL
KARADAN HOUSE, KAKOOTH,
PERINTHALMANNA P. O., PIN - 679 322.
BY ADV. SMT.T.B.REMANI
RESPONDENTS:
1 THE DISTRICT COLLECTOR
MALAPPURAM, PIN - 676 504.
2 NIKHIL IQBAL,
EDAPPALLY HOUSE, VEYKKAL, KAITHODE P. O., NILAMEL, KOLLAM, PIN - 691 535.
3 NITHIN IQBAL ALIAS NITHIN BAKER 13/373 D, HONEST NEST, NEAR KSEB SUB STATION, ULLIYERI ROAD, PAVANGADU, PIN - 673 021.
SRI K. P HARISH SR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.14801 OF 2020 2
JUDGMENT " CR"
~~~~~~~~
Appalled by the failure of the Maintenance Tribunal constituted under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (the 'Act' for short) to enforce an order passed by the Tribunal, the petitioner, a parent and senior citizen, has approached this Court seeking directions.
2. It is evident from the records produced by the petitioner that Ext.P1 order was passed by the Tribunal on 03.10.2019, ordering the respondents 2 and 3, who are his children, to pay a sum of Rs.2,500/- each per mensem towards maintenance. They were required to deposit the amount in the account maintained by the petitioner in the Punjab National Bank Perinthalmanna on or before the 5th of every month. Exts. P2 to P4 reveals in no uncertain terms that he had approached the Tribunal seeking enforcement of the orders within one month of the passing of the order. He laments that despite his best efforts, the Tribunal has failed to initiate any steps to execute the order and secure financial support for him. It is in the above backdrop that the petitioner has approached this Court seeking directions.
3. In view of the limited nature of the relief sought, notice to the WP(C).No.14801 OF 2020 3 party respondents are dispensed with.
4. The main grievance of the petitioner is that not even a paise has come into his account though the order granting maintenance was passed on 3.10.2019. His request for enforcement has also not yielded any result. On a perusal of the records, it appears that the 1st respondent has not acted with alacrity to ensure that the fruits of the order passed by him reached the petitioner.
5. Act 56 of 2007 and the Rules framed thereunder provides for the manner in which the orders for maintenance are to be enforced.
"Section 5 of the Act reads thus:-
5. Application for Maintenance:-
(1) An application for maintenance under section 4, may be made--
(a) by a senior citizen or a parent, as the case may be; or
(b) if he is incapable, by any other person or organisation authorised by him; or
(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.
(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 WP(C).No.14801 OF 2020 4 monthly allowance for the 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.
(3) On receipt of an application for maintenance under subsection (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.
(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.
(5) An application for maintenance under sub-section (1) may be filled 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.
(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. (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.
(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 WP(C).No.14801 OF 2020 5 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:
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."
6. Section 11 provides for the enforcement of order of maintenance. The said provision reads thus :-
"Section 11. Enforcement of order of maintenance.
(1) A copy of the order of maintenance and including the order regarding expenses of proceedings, as the case may be, shall be given without payment of any fee to the senior citizen or to parent, as the case may be, in whose favour it is made and such order may be enforced by any Tribunal in any place where the person against whom it is made, such Tribunal on being satisfied as to the identity of the parties and the non-payment of the allowance, or as the case may be, expenses, due.
(2) A maintenance order made under this Act shall have the same force and effect as an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be executed in the manner prescribed for the execution of such order by that Code."
7. In other words, Section 5 provides that if the children or relative fails, without sufficient cause to comply with the order, the 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 WP(C).No.14801 OF 2020 6 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. The only requirement is that the application seeking maintenance should be filed within a period of three months from the date on which it became due. Section 11(2) states that maintenance order made under this Act shall have the same force and effect as an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be executed in the manner prescribed for the execution of such order by that Code. Section 123 (3) of the Code of Criminal Procedure is in pari materia Section 5 (8) of Act 56 of 2007. The only difference is that the period of filing application seeking enforcement in the case of Section 125 (3) of the Code is one year, whereas as per Act 56 of 2007, the period prescribed is 3 months.
8. The procedure for levy of fine is provided under Section 421 of the Code of Criminal Procedure. Section 421 of the Code reads as follows:-
"421. Warrant for levy of fine.
(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-WP(C).No.14801 OF 2020 7
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;
(b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter:
Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under section 357.
(2) The State Government may make rules regulating the manner In which warrants under clause (a) of sub- section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.
(3) Where the Court issues a warrant to the Collector under clause (b) of sub- section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law: Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.
9. Thus the scheme of the Act shows that when an application seeking enforcement of the order of maintenance ordered is filed and if it is shown that the children or relative as the case may be has, without WP(C).No.14801 OF 2020 8 sufficient cause, failed to comply with the order, it is the duty of the Tribunal to see that payments are secured and the amount is paid to the parent and senior citizen. The only obligation placed on the parent or senior citizen is to present an application within three months from the date on which the amount becomes due. The maintenance Tribunal shall then issue a warrant for levying the amount by attachment and sale of any movable property belonging to the defaulter as provided under Section 421 of the Code of Criminal Procedure or it may issue a warrant to the Collector of the District, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter. If the amount remains unpaid after the execution of the warrant, the Maintenance Tribunal is empowered to sentence the defaulter to imprisonment for a term which may extend to one month or until payment if sooner made, for the whole or any part of the amount that is remaining unpaid. In sum and substance, the provision empowers the Tribunal to issue a warrant for every breach of the order and sentence the defaulter to imprisonment which may extend to one month or until payment if sooner made for such breach. In other words, despite execution of the warrant issued on the application that is to be filed within 3 months of the amount becoming due, if the amount is not paid, law contemplates a breach for the non-payment of each month's allowance and for such breach, the defaulter is liable to be imprisoned. (See the principles laid down in Ali C and WP(C).No.14801 OF 2020 9 Others V State of Kerala and Others [2014 (1) KLT 98] .
10. In that view of the matter, there is no justification on the part of the 1st respondent in delaying the enforcement of the order of Maintenance. This petition is disposed of directing the 1 st respondent to initiate steps to issue a warrant for recovery of the unpaid maintenance amount which shall be done within a period of one week from the date of production of a copy of the judgment, if the same has not been issued till date. If despite the execution of the warrant of recovery of fine, the amount still remains unpaid, he shall proceed to pass orders of confinement as stipulated under law.
This petition is disposed of .
Sd/-
RAJA VIJAYARAGHAVAN V JUDGE NS WP(C).No.14801 OF 2020 10 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER DATED 03.10.2019 PASSED BY THE 1ST RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE RECEIPT SHOWING RECEIPT OF APPLICATION DATED 06.11.2019.
EXHIBIT P3 TRUE COPY OF THE REMINDER DATED 12.03.2020.
EXHIBIT P3 (a) TRUE COPY OF THE REMINDER DATED 16.03.2020.
EXHIBIT P4 TRUE COPY OF THE RECEIPT SHOWING RECEIPT OF REMINDER DATED 12.03.2020.
EXHIBIT P5 TRUE COPY OF THE INTERIM ORDER DATED 17.03.2020 IN WP(C) NO.28406/2019.
RESPONDENTS' EXHIBITS:
NIL