Kerala High Court
Johnson M. Paul vs State Of Kerala on 15 July, 2011
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
MONDAY, THE 29TH DAY OF OCTOBER 2012/7TH KARTHIKA 1934
WP(C).No. 26925 of 2011 (M)
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PETITIONER(S):
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1. JOHNSON M. PAUL,DOOR NO. PIN/87,
2ND FLOOR, THANNIKAPARATH BUILDING, KUTTAPUZHA
RAILWAY STATION P.O., THIRUVALLA
PATHENAMTHITTA DISTRICT.
2. BINU M.JOHNSON, DOOR NO.PIN/87,
2ND FLOOR, THANNIKAPARATH BUILDING, KUTTAPUZHA
RLY STATION P.O., THIRUVALLA
PATHANAMTHITTA DISTRICT.
BY ADVS.SRI.P. CHANDRASEKHARAN PILLAI (VENNELA)
SMT. GISA SUSAN THOMAS
SMT.T.T. JAYANTHY
RESPONDENT(S):
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1. STATE OF KERALA , REPRESENTED BY DISTRICT
COLLECTOR, ALAPPUZHA-688 001.
2. THE REVENUE DIVISIONAL OFFICER,
ALAPPUZHA, ALAPPUZHA P.O. 688 001.
3. THE SUB-INSPECSTOR OF POLICE,
EDATHUA, ALAPPUZHA DISTRICT-689 573.
4. M.M.PAULOSE, MANNARATHU HOUSE,
ANAPRAMBIL NORTH P.O., THALAVADY
ALAPPUZHA DISTRICT-689 572.
R1 TO R3 BY GOVT.PLEADER SRI.V.VIJULAL
R4 BY SRI.M.M.PAULOSE (PARTY-IN-PERSON)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
tss
W.P.(C) NO.26925/2011
APPENDIX
PETITIONER(S) EXHIBITS
P1:-COPY OF THE COMPROMISE PETITION FILED IN AS.33/09 BEFORE THE DISTRICT
COURT, ALAPPUZHA.
P2:- COPY OF THE PETITIONER FILED BY THE 4TH RESPONDENT BEFORE THE 2ND
RESPONDENT DATED 15.7.2011.
P3:- COPY OF THE OBJECTION FILED BY THE RESPONDENT BEFORE THE 2ND
RESPONDENT DATED 3/8/11.
P4:- COPY OF THE ORDER NO.MWP 19/10 PASSED BY THE 2ND RESPONDENT
DT.16/9/2011.
P5:- COPY OF ORDER NO.MWP19/2010 DTD. 20.10.2011.
P6:- COPY OF NOTICE DTD. 8.2.2012 ISSUED BY THE TAHSILDAR, AMBALAPPUZHA.
RESPONDENTS' EXHIBITS
R4(a):- COPY OF THE ORDER DTD. 20.10.2011.
R4(b):- COPY OF THE LIST OF DOCUMENTS PRODEUCED BEFORE TRIBUNAL IN
MWP.19/2010
R4(A):- 17.08.2008-
2351/05-
//TRUE COPY//
P.A. TO JUDGE
tss
C.K. ABDUL REHIM, J.
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W.P.(C). No. 26925 of 2011
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Dated this the 29th day of October, 2012
JUDGMENT
Petitioners 1 and 2 are the son and daughter in law of the 4th respondent. This writ petition was originally filed challenging Exhibit P4 order passed by the 2nd respondent. Subsequently by virtue of an amendment, the petitioners are also challenging Exhibit P5 order issued by the same authority.
2. Dispute between petitioners and 4th respondent has got a chequered history. There exists a series of civil litigations between the parties. There was also criminal cases arisen between the parties out of the dispute. It is averred that the entire disputes were settled at an Adalath conducted at the District Court, Alappuzha and Exhibit P1 compromise petition was executed and signed by the parties. While so, the 4th respondent had approached the 2nd respondent invoking provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter W.P.(C). No. 26925 of 2011 -2- called 'the Act' for short). On receipt of Exhibit P2 notice, the petitioners submitted detailed objections before the 2nd respondent, as per Exhibit P3. It is complained that the 2nd respondent, even without considering the objections had issued Exhibit P4 order. Exhibit P4 is addressed to the Sub Inspector of Police, Edathua (the 3rd respondent herein). Through Exhibit P4 the Sub Inspector was directed to restrain the petitioners from causing any obstruction to the pathway which is being used by the 4th respondent and his wife, and also directed to evict the petitioners from certain buildings and a factory and to hand over the possession of those buildings to the 4th respondent. This writ petition was filed challenging Exhibit P4 on the ground that such an order was issued without following any procedure contemplated in the Act, and it is without jurisdiction. This court by virtue of an interim order passed on 13.10.2011 had stayed operation of Exhibit P4. But on 20.10.2011 the 2nd respondent had issued a further order as per Exhibit P5. In Exhibit P5 it is W.P.(C). No. 26925 of 2011 -3- stated that Exhibit P4 was issued on the basis of enquiry conducted by the 2nd respondent and after verification of relevant records. Further it is stated that, eventhough copy of Exhibit P4 was issued to the Tahsildar, Kuttanad, the 4th respondent had raised compliant that the Tahsildar is not implementing the directions contained in Exhibit P4. Therefore a further order was issued directing strict implementation of Exhibit P4. The petitioner is also challenging Exhibit P5 order by amending the writ petition.
3. The 4th respondent is appearing in person. He has filed an affidavit which is in vernacular language (Malayalam). The affidavit is mainly narrating factual aspects pertaining to the civil cases existing with respect to the dispute on the properties. According to him, 2nd respondent had issued the impugned orders after perusal of all relevant documents. He has also filed argument notes in Malayalam, mainly contending that this court cannot interfere with the impugned order which is issued under the W.P.(C). No. 26925 of 2011 -4- provisions of the Act by a competent authority. According to him by virtue of Section 23 of the Act certain transactions will become nullified and under Section 27 jurisdiction of the civil court is barred. According to him he was compelled to agree for Exhibit P1 compromise only because it was threatened that the civil cases may not be disposed of during his life time. According to him Exhibit P1 compromise is not valid and the petitioners have violates its terms by not providing maintenance as agreed upon. While hearing arguments the 4th respondent who appeared in person had reiterated all the above contentions.
4. Point arising for consideration is solely regarding sustainability of Exhibit P4 and P5. Exhibit P4 is issued as a letter addressed to the Sub Inspector of Police, where as Exhibit P5 is issued as an order of the 2nd respondent. At the very out set it is to be born in mind that the 2nd respondent is discharging function as 'Maintenance Tribunal' constituted by the State Government in exercise of powers conferred W.P.(C). No. 26925 of 2011 -5- under Section 7 of the Act. Definitely, it is a quasi-judicial function which is being discharged. The Tribunal is not supposed to issue letters to any authority without there being any orders issued in the proceedings concerned. It is evident from Exhibit P2 that on the basis of an application received from the 4th respondent, the tribunal had initiated proceedings as MWP No. 19/2010. On an evaluation of provisions contained in the Act, any senior citizen or parent can approach the Tribunal seeking maintenance as contemplated under Section 4 of the Act. Section 4 deals with the procedure to be followed by the Tribunal. Sub Section (2) of Section 5 confers power on the tribunal to pass appropriate orders regarding monthly maintenance, during pendency of the proceedings. By virtue of such power the Maintenance Tribunal is empowered to issue orders against the children to make payment of a monthly allowance as interim maintenance to the parent and to pay the same to the parent from time to time as directed. Sub W.P.(C). No. 26925 of 2011 -6- Sections (3) to (7) of Section 5 enumerates the procedure under which an application for maintenance shall be dealt with and also regarding order of maintenance which can be issued on disposal of such application. Sub Section (8) of Section 5 deals with the procedure to be followed if there is failure on the part of the person in complying with the order of maintenance. Section 9 deals with the power of order maintenance and Section 10 deals with the power to alter the maintenance already ordered. Section 13 deals with the power to direct deposit of the maintenance ordered. On a perusal of the complaint submitted by the 4th respondent, which is enclosed along with Exhibit P2 notice, it is evident that the grievance voiced is mainly with respect to non compliance of the terms of compromise. Further, complaint was made against non payment of the maintenance as agreed upon. Inter alia the 4th respondent had sought for an order directing the petitioners to give back all the properties assigned by the 4th respondent. But it is pertinent to note W.P.(C). No. 26925 of 2011 -7- that the 2nd respondent, in exercise of powers as Maintenance Tribunal, has not made any adjudication on the question regarding eligibility of the 4th respondent to get maintenance from the petitioners. Nor the Tribunal had issued any order directing the petitioners to make payment of maintenance to the 4th respondent. On the other hand, in Exhibit P4 the Sub Inspector was directed to restrain the petitioners from causing any obstruction to the alleged pathway being used by the 4th respondent and also to restrain them from entering into the residential house of the 4th respondent and also from causing any disturbance to the 4th respondent and his wife. Further direction given to the Sub Inspector is to evict the petitioners from buildings which are alleged to have been possessed by them unauthorisedly and to hand over possession of those buildings to the 4th respondent. It is not at all evident as to whether the 2nd respondent had considered objections submitted by the petitioners. No discussions on merits of the averments W.P.(C). No. 26925 of 2011 -8- contained in the application or objections is made in Exhibit P4. Exhibit P4 does not indicate any enquiry or any adjudication conducted on the disputed issues. There is no narration about verification of any records or about any oral statement recorded from the parties in question. Without passing any interim order directing payment of maintenance, how can the 2nd respondent issue directions like that of Exhibit P4 to the Sub Inspector of Police, is highly surprising.
5. Learned Government Pleader appearing on behalf of the 2nd respondent had drawn my attention to provisions contained in Section 23 of the Act. By virtue of power conferred under the said provision, the Tribunal can declare any transfer of property as void if any senior citizen has transferred the property by way of gift or otherwise subject to a condition that the transferee has to provide basic maintenance and basic needs to the transferor, and if such transferee refuse or fails to provide such amenities or needs. W.P.(C). No. 26925 of 2011 -9- In such case the transfer of property shall be deemed to have been made by fraud or coercion or undue influence and such transfer can be declared as void by the Tribunal. It is pertinent to note that the 4th respondent had no case that he had transferred the properties in favour of the petitioners subject to any condition that the transferee shall provide amenities or needs and that the transferee has failed to provide such amenities or needs as agreed upon. Further there is no relief sought for in Exhibit P2 application for declaring any transfer as void. Sub Section (2) of Section 23 deals with the right of senior citizens to receive maintenance out of the estate transfered in case the transferee has noticed such rights or if the transfer is gracious. In the case at hand application is not made for enforcement any right against the transferee. Therefore I am of the view that Exhibit P4 direction issued to the Sub Inspector cannot at any rate be considered as a declaration made by the Tribunal under Section 23.
W.P.(C). No. 26925 of 2011 -10-
6. Exhibit P5 is issued in the midst of the proceedings. It only reiterate the directions contained in Exhibit P4. It is not discernible in Exhibit P5 as to whether it is an interim order or a final order. However, it is pertinent to note that Exhibit P5 was issued on a date after this court had stayed operation of Exhibit P4. It is not clear as to whether the 2nd respondent had issued Exhibit P5 after noticing the stay order. At any rate, neither Exhibit P4 nor Exhibit P5 can be termed as an order, interim or final, issued by the Maintenance Tribunal under provisions of the Act, in exercise of the quasi-judicial function vested on such Tribunal. Mere direction to the Sub Inspector or Tahsildar cannot be issue by the 2nd respondent while exercising the powers under the Act, as that of exercise of powers as Revenue Divisional Officer (RDO) or Sub Divisional Magistrate. While exercising powers as a Maintenance Tribunal he should strictly follow provisions contained in the Act and should act within the four corners of law. Being a quasi-judicial authority he W.P.(C). No. 26925 of 2011 -11- should follow all principles of natural justice. Every order should reflect proper advertence to contentions raised by all the parties. Such orders should reflect proper application of mind by the tribunal. Those orders should contain proper reasonings supported by facts and materials. The impugned orders in this case are totally lacking in the legal requisites enumerated. Therefore I am of the view that Exhibit P4 and P5 are totally unsustainable in the eye of law.
7. Eventhough learned Government Pleader had pointed out availability of alternate remedy before the appellate tribunal constituted under Section 15, I am of the view that the parties need not be relegated to such remedy since the interim orders are per-se illegal and totally unsustainable.
8. From the facts and circumstances as enumerated, it is evident that the applications submitted by the 4th respondent seeking maintenance from the petitioners need a proper adjudication under the provisions of the Act. While W.P.(C). No. 26925 of 2011 -12- exercising such adjudication the Maintenance Tribunal is empowered to pass interim orders as contemplated under Section 5(2). Therefore I am of the view that a proper adjudication on the basis of the application submitted by the 4th respondent with due advertence to the objections filed by the petitioners is necessary to meet the ends of justice. The Maintenance Tribunal shall advert to rival contentions and shall exercise the powers vested on him under the provisions of the Act in a judicious and legitimate manner.
9. Therefore the writ petition is allowed and Exhibit P4 and P5 are hereby quashed. The 2nd respondent (Maintenance Tribunal) was directed to consider the application submitted by the 4th respondent afresh and to issue appropriate orders after due adjudication on the basis of the rival contentions raised, after affording reasonable opportunity to both sides. The Maintenance Tribunal shall pass orders strictly within the powers vested under the provisions of the Act by adhering to relevant procedure W.P.(C). No. 26925 of 2011 -13- contemplated under the Act and also under the Rules framed. Necessary steps for speedy disposal of the application shall be undertaken by the 2nd respondent and the application shall finally be disposed of at the earliest possible.
Sd/-
C.K. ABDUL REHIM, JUDGE /True copy/ P. A. to Judge Pn