Kerala High Court
Antony Scaria vs The District Collector on 3 February, 2020
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
MONDAY, THE 03RD DAY OF FEBRUARY 2020 / 14TH MAGHA, 1941
WP(C).No.20234 OF 2019(D)
PETITIONER/S:
1 ANTONY SCARIA
AGED 42 YEARS
S/O. C.J. SCARIA, CHACKALAYIL HOSUE, AMARA P.O.,
MADAPPALLY VILLAGE, CHANGANASSERY TALUK, KOTTAYAM
DISTRICT, PIN-686 546.
2 PRASAD SAMUEL
AGED 55 YEARS
S/O SAMUEL, BETHEL HOUSE, PAYYAMKULAM, KOLLAMPARA
P.O., KARIMTHALAM VILLAGE, NEELESWARAM, VELLARIKUNDU
TALUK, KASARGOD DISTRICT, PIN-671 314.
3 JESSY SABU
AGED 49 YEARS
W/O. SABU, CHENNANGATTU HOUSE, KUZHIMATTOM P.O.,
KOTTAYAM DISTRICT, PIN-686 533.
BY ADVS.
SRI.JOSEPH GEORGE
SRI.BIJO THOMAS GEORGE
SMT.NICEY A. MENON
SRI.P.A.REJIMON
RESPONDENT/S:
1 THE DISTRICT COLLECTOR
KOTTAYAM AND THE MAINTENANCE APPELLATE TRIBUNAL,
COLLECTORATE P.O., KOTTAYAM, PIN-686 002.
2 THE REVENUE DIVISIONAL OFFICER AND MAINTENANCE
TRIBUNAL,KOTTAYAM, PIN-686 001.
3 NOBLE PHILIP
AGED 41 YEARS
S/O. LATE A.S. PHILIP, AMBALAVELIL HOUSE,
CHURULIKKODU P.O., ELANTHOOR, PATHANAMTHITTA
DISTRICT, PIN-689 668.
4 MEJO P. ABRAHAM,AGED 43 YEARS
S/O ABRAHAM, PUTHUVEETTIL HOUSE, KAINADY, KAVALAM,
KUTTANAD, ALAPPUZHA DISTRICT, PIN-686 534.
WP(C).No.20234 OF 2019(D) 2
5 JOSEPH PYLO,AGED 60 YEARS
S/O LATE PYLO, PAZHAYAKADAVIL, KAIPUZHA P.O.,
KOTTAYAM DISTRICT, PIN-686 602.
ADDL.R6 THE DISTRICT SOCIAL JUSTICE OFFICER
MINI CIVIL STATION, PUTHENGADY, THIRUNAKKARA,
KOTTAYAM, PIN-686001.
ADDL.R6 IS SUO MOTU IMPLEADED AS PER ORDER DATED
13/11/2019.
ADDL.R7 THE STATE BANK OF INDIA,
MADAPPALLY BRANCH,KOTTAYAM DISTRICT.
ADDL.R8 THE REGIONAL OFFICER
REGIONAL BRANCH, STATE BANK OF INDIA, ERNAKULAM.
ADDL.R7 AND 8 ARE SUO MOTU IMPLEADED AS PER ORDER
DATED 20.11.2019.
R3-4 BY ADV. SRI.S.MUHAMMED HANEEFF
R3-4 BY ADV. SRI.M.H.ASIF ALI
R3-4 BY ADV. SMT.SHAIMA VAHAB
GOVERNMENT PLEADER SMT.MABLE C.KURIAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
03.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.20234 OF 2019(D) 3
JUDGMENT
This writ petition has been preferred by the petitioners, who are stated to be near relatives/legal heirs of late Mariyamma John, who was the appellant in Appeal No.M5-6487/15 of the Appellate Tribunal under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (the Act). The facts in the writ petition would indicate that the deceased Mariayamma John had filed a petition before the 2nd respondent Maintenance Tribunal, under Section 23 of the Act, for setting aside a gift deed of the Thengana Sub Registrar Office that was executed in favour of 3rd respondent. The Maintenance Tribunal passed Ext.P1 order, against which late Mariayamma John preferred Ext.P2 appeal, which also came to be dismissed by Ext.P3 judgment. Mariayamma John thereafter filed W.P.(C)No.6520/2018, challenging Ext.P3 order of the Appellate Authority and, during the pendency of the said writ petition, Mariayamma John died. This Court, however, directed impleadment of the legal heirs of Mariyamma John and thereafter, by Ext.P5 judgment, directed reconsideration of the appeal by the Appellate Authority. The Appellate Authority, based on the directions of this Court, proceeded to consider the appeal and passed Ext.P7 order. In this writ petition, Ext.P7 order, as also Ext.P9 order of the Maintenance Tribunal that the gives effect to Ext.P7 order, are impugned.
2. When the matter came up for admission before this Court, this Court issued notice to the respondents and directed that both sides would not create any charge or encumbrance over the property in question. Thereafter, various orders have been passed to determine the inter se issue between the parties. A counter affidavit has also been filed on behalf of the 3rd respondent.
3.When the matter came up for orders before me on the last occasion, I WP(C).No.20234 OF 2019(D) 4 queried with the learned counsel for the petitioners as to how a writ petition impugning an order, passed by the Appellate Authority under the 2007 Act, could be maintained at the instance of the relatives/legal heirs of the deceased senior citizen, especially when the senior citizen had expired during the pendency of the earlier writ petition that was disposed by Ext.P5 judgment, and the directions in which were reiterated in the judgment in W.P.(C)No.29517/2018 (Ext.P6). The learned counsel for the petitioners would submit that, although the senior citizen had expired during the pendency of the earlier round of litigation before this Court, this Court had specifically directed that the appeal preferred by the senior citizen be considered by the appellate authority, at the instance of the petitioners herein, and it was ttherefore that the appeals were so considered and the impugned order passed by the appellate authority under the Act.
4. I have heard the learned counsel for the petitioner, the learned counsel for the 3 rd respondent as also the learned Government Pleader for the respondents 1 and 2.
5. On a consideration of the facts and circumstances of the case and the submissions made across the Bar, I am of the view that the writ petition preferred at the instance of the petitioners is not maintainable before this Court. It has to be noticed that the right that was pursued by Mariyamma John was one that accrued to her in terms of the 2007 Act. Further, under the said Act, against any order passed by the Maintenance Tribunal it is only the senior citizen who has a statutory right of appeal before the Appellate Authority. It is not in dispute that Mariyamma John had pursued that right of appeal, and still thereafter, preferred a writ petition against the order of the Appellate Authority before this Court. During the pendency of the said writ petition, however, Mariayamma John died and thereafter, this Court permitted a substitution of the legal heirs of Mariyamma WP(C).No.20234 OF 2019(D) 5 John in the writ petition, and also remanded the matter before the Appellate Authority for a reconsideration of the appeal. In my view,, with the expiry of Mariyamma John, the writ petition stood abated and this Court ought not to have impleaded the legal heirs in the writ petition. This is because, in the said writ petition, Mariayamma John was espousing her right under the 2007 Act, which right was one that accrued to her in her personal capacity as a senior citizen and not a heritable right under common law. The Appellate Authority too could not have considered the appeal that was being pursued by the legal heirs since it would tantamount to an adjudication of their proprietary rights by a forum other than a civil court of competent jurisdiction. It is trite that when a senior citizen dies during the pendency of an appeal under the Act, the appeal itself abates, since the right that is pursued in the appeal is a statutory right that accrues to the senior citizen alone and is not a heritable right.
Accordingly, I am of the view that the writ petition impugning the order of the appellate authority under the Act cannot be pursued by the legal heirs of the deceased senior citizen. If there is a dispute with regard to their rights over the items of property that were in the ownership of the deceased senior citizen, then it is for the legal heirs to agitate their respective rights in respect of the property before the civil court of competent jurisdiction. Thus, leaving open the rights of the petitioners, as also respondents 3, 4 and 5, to agitate their respective rights over the properties in question before a civil court of competent jurisdiction, the writ petition impugning Exts.P7 and P9 orders, is dismissed.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE sd WP(C).No.20234 OF 2019(D) 6 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE PHOTOCOPY OF ORDER NO.E-1065/2013 DATED 19.12.2014 OF THE 2ND RESPONDENT.
EXHIBIT P2 TRUE PHOTOCOPY OF THE APPEAL PETITION SUBMITTED BEFORE THE IST RESPONDENT BY MARIYAMMA JOHN.
EXHIBIT P3 TRUE PHOTOCOPY OF ORDER NO.M5-6487/2015 DATED 30.6.2015 ISSUED BY THE IST RESPONDENT.
EXHIBIT P4 TRUE PHOTOCOPY OF DEATH CERTIFICATE DATED 23.3.2018 ISSUED BY THE REGISTRAR OF BIRTHS AND DEATHS OF MADAPPALLY GRAMA PANCHAYATH.
EXHIBIT P5 TRUE PHOTOCOPY OF THE JUDGMENT DATED 10.4.2018 IN WPC 6520/2018.
EXHIBIT P6 TRUE PHOTOCOPY OF THE JUDGMENT DATED 11.9.2018 IN WPC 29517/2018 OF THIS HON'BLE COURT.
EXHIBIT P7 TRUE PHOTOCOPY OF THE ORDER NO.M5-6487/2015 K.DIS DATED 11.6.2019 ISSUED BY THE IST RESPONDENT.
EXHIBIT P8 TRUE PHOTOCOPY OF THE JUDGMENT DATED 19.6.2019 IN WPC 16490/2019 OF THIS HON'BLE COURT.
EXHIBIT P9 TRUE PHOTOCOPY OF ORDER NO.E-1065/2013 K.DIS DATED 12.7.2019 OF THE 2ND RESPONDENT.
EXHIBIT P10 TRUE PHOTOCOPYOF OBJECTION DATED 05.04.2013 OF THE 3RD RESPONDENT IN E-1065/2013 OF THE RDO KOTTAYAM.
EXHIBIT P11 TRUE PHOTOCOPY OF THE AFFIDAVIT OF MARIYAMMA JOHN DATED 03.10.2013.
EXHIBIT P12 TRUE PHOTOCOPY OF JUDGMENT DATED 13.11.2017 IN S.C.19/2012 OF THE HON'BLE ADDITIONAL ASSISTANT SESSIONS COURT KOTTAYAM.
EXHIBIT P13 TRUE PHOTOCOPY OF DEPOSITION OF MARIYAMMA JOHN IN I CMP 5655/2014 OF THE JUDICIAL 1ST CLASS MAGISTRATE COURT I CHANGANASERRY.
WP(C).No.20234 OF 2019(D) 7EXHIBIT P14 TRUE PHOTOCOPY OF THE REPLY DATED 31.01.2014 ISSUED BY THE PUBLIC INFORMATION OFFICER OF TALUK OFFICE KOTTAYAM.
EXHIBIT P15 TRUE PHOTOCOPY OF THE STATEMENT DATED 24.11.2014 GIVEN BEFORE THE DISTRICT REGISTRAR(GENERAL) KOTTAYAM BY THE 5TH RESPONDENT.
EXHIBIT P16 TRUE PHOTOCOPY OF THE ACKNOWLEDGEMENT EXHIBIT P17 TRUE PHOTOCOPY OF BRIEF HISTORY OF THE CASE IN WP.C 20234/2019 BEFORE THIS HONOURABLE COURT AND PREPARED BY THE 1ST RESPONDENT EXHIBIT P18 TRUE PHOTOCOPY OF STATEMEN TOF FACTS IN RESPECT OF WP.C. 20234/2019 BEFORE THIS HONOURABLE COURT AND PREPARED BY THE 2ND RESPONDENT RESPONDENT'S/S EXHIBITS:
EXHIBIT R3(A) A TRUE COPY OF THE SETTLEMENT DEED BEARING NO 3326/1/12 OF S.R.O CHANGANASSERY EXHIBIT R3(B) A TRUE COPY OF THE SETTLEMENT DEED BEARING NO:3327/1/12 OF S.R.O CHANGANASSERY EXHIBIT R3(C) A TRUE COPY OF THE SETTLEMENT DEED BEARING NO:3328/1/12 OF S.R.O CHANGANASSERY EXHIBIT R3(D) A TRUE COPY OF THE SETTLEMENT DEED BEARING NO:3328/1/12 OF S.R.O CHANGANASSERY EXHIBIT R3(E) A TRUE COPY OF THE SETTLEMENT DEED BEARING NO:3330/1/12 OF S.R.O CHANGANASSERY EXHIBIT R3(F) A TRUE COPY OF THE SETTLEMENT DEED BEARING NO:3331/1/12 OF S.R.O CHANGANASSERY EXHIBIT R3(G) A TRUE COPPY OF THE CERTIFICATE OF REGISTRATION OF SOSAMMA JOHN AMBALAVELIL MEMORIAL CHARITABLE SOCIETY DATED 17.7.2019 EXHIBIT R3(H) A TRUE COPY OF THE CANCELLATION DEED DATED 3.7.2010 IN RESPECT OF THE WILL DATED 2.12.2008 EXHIBIT R3(I) A TRUE COPY OF THE RELEVANT PAGES OF THE CHARGE SHEET IN CRIME NO 407/2010 IN THRIKKODITHANAM POLICE STATION WP(C).No.20234 OF 2019(D) 8 EXHIBIT R3(J) A TRUE COPY OF THE ORDER DATED 21.10.2016 IN OP NO 3/2013 EXHIBIT R3(K) A TRUE COPPY OF THE ORDER NO E-5071/2014 DATED 22.9.2014 ISSUED BY RDO, KOTTAYAM EXHIBIT R3(L) A TRUE COPY OF THE ORDER NO M-2033/13/K.DIS DATED 25.7.2014 ISSUED BY THE 2ND RESPONDENT EXHIBIT R3(M) A TRUE COPY OF THE ORDER BEARING NO E9(3)-
14854/15 DATED 18.2.2017 ISSUED BY THE 1ST RESPONDENT EXHIBIT R3(N) A TRUE COPY OF THE ORDER BEARING NO L.R.B9- 13468/2017 DATED 27.9.2017 ISSUED BY THE LAND REVENUE COMMISSIONER EXHIBIT R3(O) A TRUE COPY OF THE COMPLAINT NO 1244/14A FILED BY THE 1ST PETITIONER BEFORE THE HON'BLE KERALA LOK AYUKTA EXHIBIT R3(P) A TRUE COPY OF THE JUDGMENT DATED 24.7.2018 IN WPC O 35568/2016 ON THE FILE OF THE HON'BLE HIGH COURT OF KERALA EXHIBIT R3(Q) A TRUE COPY OF THE ORDER OF THE HON'BLE LOK AYUKTA DATED 13.9.2018 IN COMPLAINT NO 1244/14A EXHIBIT R3(R) A COPY OF THE MEMORANDUM OF WPC NO 6520/18 FILED BEFORE THE HON'BLE HIGH COURT OF KERALA FILED ON 26.2.2018 EXHIBIT R3(S) A TRUE COPY OF THE LETTER SEND BY SMT.
MARIYAMMA JOHN DATED 10.10.2012 IS PRODUCED HEREWITH AND MARKED AS EXHIBIT R3(T) A TRUE COPY OF THE REPORT SUBMITTED DISTRICT SOCIAL JUSTICE OFFICER, KOTTAYAM IN WPC NO 36786/16 BEFORE THE HON'BLE HIGH COURT OF KERALA sd