Kerala High Court
Thoppil Anto vs Glacin T.A on 10 January, 2020
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
FRIDAY, THE 10TH DAY OF JANUARY 2020 / 20TH POUSHA, 1941
WP(C).No.26111 OF 2019(L)
PETITIONER/S:
THOPPIL ANTO
AGED 79 YEARS
S/O. LATE JOSEPH KUNJAPPU, THOPPIL HOUSE, NNRA NO. 66,
MAIN LANE NO.8, NETHAJI NAGAR, TOLL GATE, EDAPPALLY,
ERNAKULAM DISTRICT.
BY ADVS.
SRI.JOBY JACOB PULICKEKUDY
SRI.ANIL GEORGE
SRI.T.ANCY
SMT.N.B.FATHIMA SULFATH
SMT.K.BINCYMOL
SHRI.DAJISH JOHN
RESPONDENT/S:
1 GLACIN T.A.
AGED 53 YEARS
S/O. THOPPIL ANTO, THOPPIL HOUSE, HOUSE NO. 39/43A, NNRA NO. 66, MAIN LANE NO.8, NETHAJI NAGAR, TOLL GATE, EDAPPALLY, ERNAKULAM-682 012 2 LEENA, AGED 48 YEARS W/O. GLACIN T.A, THOPPIL HOUSE, HOUSE NO. 39/43A, NNRA NO. 66, MAIN LANE NO.8, NETHAJI NAGAR, TOLL GATE, EDAPPALLY, ERNAKULAM -682 012 3 THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, FORT KOCHI, ERNAKULAM -682 001 4 THE DISTRICT COLLECTOR (APPELLATE AUTHORITY) COLLECTORATE, CIVIL STATION, KAKKANAD, ERNAKULAM-682 030 R1-2 BY ADV. SRI.S.K.AJAY KUMAR R1-2 BY ADV. SMT.PRIYA. H. R1-2 BY ADV. SRI.NAVEEN THOMAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.11.2019, ALONG WITH WP(C).24109/2019(K), THE COURT ON 10.1.2020 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE FRIDAY, THE 10TH DAY OF JANUARY 2020 / 20TH POUSHA, 1941 WP(C).No.24109 OF 2019(K) PETITIONER/S:
1 GLANCIN.T.A AGED 53 YEARS S/O. T.K. ANTONY, THOPPIL HOUSE, NNRA NO. 66, LINE NO. 8, NETAJI NAGAR, TOLL GATE, EDAPPALLY NORTH, ERNAKULAM 682 024.
2 LEENA GLANCIN T.A., AGED 45 YEARS W/O. GLANCIN, THOPPIL HOUSE, NNRA NO. 66, LINE NO.
8, NETAJI NAGAR, TOLL GATE, EDAPPALLY NORTH, ERNAKULAM 682 024.
BY ADVS.
SRI.S.K.AJAY KUMAR SMT.PRIYA. H. SRI.NAVEEN THOMAS RESPONDENT/S:
1 PRESIDING OFFICER (COLLECTOR) APPELLATE MAINTENANCE TRIBUNAL, ERNAKULAM 682 030. 2 T.K. ANTONY, AGED 79 YEARS S/O. JOSEPH KUNJAPPU, THOPPIL HOUSE, NNRA NO. 66 LINE NO. 8, NETAJI NAGAR, TOLL GATE, EDAPPALLY NORTH, ERNAKULAM 682 024.
OTHER PRESENT:
BIMAL K NATH SRGP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.11.2019, ALONG WITH WP(C).26111/2019(L), THE COURT ON 10.1.2020 DELIVERED THE FOLLOWING:
J U D G M E N T ".C.R."
[W.P.(C).Nos.26111/2019 & 24109/2019] Dated this the 10th day of January, 2020 These writ petitions present a dispute between a senior citizen and his son in regard to the occupation of a residential building. The primary question that is to be decided in this case is in regard to the competency of the Maintenance Tribunal to order eviction to protect life and property of the senior citizen.
2. Shri Thoppil Anto is a well-known singer in the State. He owns a residential building in Thrikkakkara North Village in Ernakulam District. Glancin T.A. is one of his sons, who stays along with his wife in the aforesaid residential building. Glancin claims that he is occupying the first floor of the residential building. According to him, a huge amount was collected by his father for the construction of the building. It is his case that his father promised transfer of title of the first floor to him. He appears to have moved the civil court for an injunction to restrain his eviction by his father. That suit is pending.
[W.P.(C).Nos.26111/2019 & 24109/2019] -:2:-
3. The senior citizen approached the Maintenance Tribunal, Fort Kochi, to evict his son. According to him, if he lets out the first floor, he will be able to generate income to meet his expenses. Maintenance Tribunal refused to pass an order of eviction. The Tribunal directed Glancin to provide basic amenities and provisions for the welfare of the senior citizen. The Tribunal permitted Glancin to occupy the first floor and; the senior citizen, the ground floor. Challenging the order of the Tribunal, the senior citizen approached the appellate authority. Finding that the occupation of the first floor by Glancin would adversely affect the life of the senior citizen, the appellate authority directed Glancin to vacate the building within six months.
4. The senior citizen, aggrieved by the direction of fixing the outer limit of six months to vacate the building, approached this Court in W.P.(C) No.26111/2019. The very same order is challenged by Glancin along with his wife in W.P.(C) No.24109/2019.
[W.P.(C).Nos.26111/2019 & 24109/2019] -:3:-
5. The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as the "Act") is an enactment to protect senior citizens from neglect and undeserved want. The old age is a problem-ridden phase of life. The Act reinforces traditional values of Indian Society and cast obligations on children and relatives to provide care to senior citizens or parents. The Act, therefore, conceptualizes a scheme to protect the well-being of senior citizens or parents. The Act also intends to protect the person as well as the property of the senior citizen. It provides provisions for the maintenance of senior citizen. "Maintenance" as defined under Section 2(b) of the Act includes provision for food, clothing, residence and medical attendance and treatment to senior citizen. This is more in the nature of allowance to be paid in monetary terms.
6. The Maintenance Tribunal constituted as per Section 7 of the Act has jurisdiction to decide upon the application for maintenance. The Tribunal also is specifically conferred with the powers under Section 23 to declare certain [W.P.(C).Nos.26111/2019 & 24109/2019] -:4:- transfers made by the senior citizen as void. Except for these enumerated powers, the Tribunal has no other jurisdiction or power to entertain any other complaints of the senior citizen or parents.
7. The Act confers power upon the District Magistrate to perform all other duties relatable to person or property of the senior citizen. Section 22 of the Act states that the State Government may confer such power and duties to the District Magistrate to ensure compliance of the provisions of the Act. This residuary power conferred upon the District Magistrate would depend upon the rules made by the State Government invoking Section 32 of the Act or based on any order passed by the State Government.
8. The Government of Kerala framed Rules called the Kerala Maintenance and Welfare of Parents and Senior Citizens Rules, 2009 (hereinafter referred to as the "Rules"). The duties and powers of the District Magistrate are enumerated under Chapter V of the Rules. This includes protection to life and property of the senior citizen to enable him to live with security and dignity. Protection of the property [W.P.(C).Nos.26111/2019 & 24109/2019] -:5:- includes enjoyment of his property. Thus, it means to include the power to evict a person in occupation of the residential building not bound by any jural relationship created through legal contract or under statutory provisions. If the occupant of any residential building or such other building is occupying such building, not based on any jural relation created, he can be evicted by the District Magistrate.
9. The District Magistrate also can delegate his power to his subordinate which includes the presiding officer of the Maintenance Tribunal. Section 22(1) confers power on the District Magistrate to delegate.
10. The learned Single Judge of this Court by judgment in W.P.(C).No.20850/2011 dated 25.5.2012 has taken the view that the Maintenance Tribunal has no power to evict family members from the residential building. The learned counsel for senior citizen, Shri Joby Jacob Pulickekudy placed reliance on the following judgments and argued that the Maintenance Tribunal has such power.
Sachin and another v. Jhabbu Lal and another [2017 KHC 2012 - Delhi High Court] [W.P.(C).Nos.26111/2019 & 24109/2019] -:6:- Skanda Sharath v. Asst. Commissioner, Tribunal of Maintenance and Welfare of Parents and Senior Citizens Assistant Commission, Bengaluru and others [2019 KHC 3011 - Karnataka High Court] Jayantram Vallabhdas Meswania v. Vallabhda Govindram Meswania [2013 KHC 2615 - Gujarat High Court] Sherly Francis v. Appellate Tribunal and others [2018 (5) KHC 508 - Kerala High Court] The precedents cited by the learned counsel for the petitioner of other High Courts could not persuade me to rely upon, in the light of the discussions aforementioned. The District Magistrate alone is competent to entertain any application for an order of eviction.
11. The impugned order is arising from an application which is not maintainable before the Maintenance Tribunal. However, that does not mean that this Court foreclosed the remedy available to senior citizen. The District Magistrate can be directed either to authorise the Maintenance Tribunal to consider the application or decide the matter himself. In the inquisitorial proceedings, the stand of the parties and wrong forum chosen need not result in rejection of such an application. The authority can very well forward the same to [W.P.(C).Nos.26111/2019 & 24109/2019] -:7:- the competent authority to act upon. In such circumstances, the impugned order is set aside. The parties are directed to appear before the District Magistrate on 20.1.2020. The District Magistrate shall either decide the matter or relegate the parties to the Maintenance Tribunal by invoking his power under Section 22(1) of the Act. The District Magistrate shall ensure that the proceedings are concluded within one month thereon.
The writ petitions are disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE ms APPENDIX OF WP(C) 26111/2019 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE PHOTOCOPY OF SALE DEED DATED 03.03.2005 OF S.R.O. EDAPPALLY.
EXHIBIT P2 TRUE PHOTOCOPY OF LATEST BASIC TAX RECEIPT DATED 22.05.2018 ISSUED BY THE THRIKKAKARA NORTH VILLAGE.
EXHIBIT P3 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE THRIKKAKARA NORTH VILLAGE DATED 18.08.2010.
EXHIBIT P4 TRUE COPY OF FIR DATED 22.08.2017 BY THE KALAMASSERY POLICE STATION.
EXHIBIT P5 TRUE PHOTOCOPY OF ORDER DATED 04.01.2019 PASSED BY THE 3RD RESPONDENT.
EXHIBIT P6 TRUE COPY OF ORDER DATED 31.07.2019 PASSED BY THE 4TH RESPONDENT.
APPENDIX OF WP(C) 24109/2019 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE ORDER DATED 4.1.2019 IN S-6530/207 IN THE FILE OF MAINTENANCE TRIBUNAL, FORTKOCHI.
EXHIBIT P2 THE ORIGINAL ORDER DATED 31.7.2019 DIGITALLY SIGNED IN APPEAL NUMBERED AS M 6
-2932/19 PASSED BY 1ST RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE AGREEMENT DATED 12.11.2010 ENTERED INTO BETWEEN THE 1ST PETITIONER AND THE 2ND RESPONDENT