Calcutta High Court (Appellete Side)
Sri Avijit Mandal vs The State Of West Bengal & Ors on 28 August, 2019
Author: Debangsu Basak
Bench: Debangsu Basak
1
28.08.2019
Ct. No.8
S/L No.29
KS
W. P. No.15859 (W) of 2019
Sri Avijit Mandal
Versus
The State of West Bengal & Ors.
Ms. Deblina Lahiri
Ms. Samapti Roy
Mr. Mrinmoy Chatterjee
.....For the Petitioner
Mr. Swapan Kumar Dutta
Mr. Pradyot Kumar Das
.....For the State
Mr. Arghya Kamal Das
.....For the Respondent No.5
Supplementary Affidavit filed in Court be taken on record. The petitioner assails an order dated June 20, 2018 passed by the Sub‐ Divisional Magistrate, Kalyani, Nadia exercising jurisdiction under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
State and the respondents are represented.
Learned advocate appearing for the private respondents submits that, the private respondents approached the Tribunal under the Act of 2007 making complaints against the petitioner. The private respondent claims to be a tenant under the petitioner. The Tribunal assumed jurisdiction under the Act of 2007 and issued few directions with regard to the tenancy.
The Act of 2007 came into being to provide for more effective provisions for the maintenance of parents and senior citizens guaranteed and recognized under the constitution and for matters connected therewith or incidental thereof. The Act of 2007 defines "children", "maintenance", "parent" and "senior citizen" amongst others. Sections 4, 5 and 6 of the Act of 2007 are relevant. They are as follows:‐ 2 "4. Maintenance of parents and senior citizens.‐ (1) A senior citizen including parent who is unable to maintain himself from his own earning or out of the property owned by him, shall be entitled to make an application under Section 5 in case of -
(i) parent or grand parent, against one or more of his children not being a minor;
(ii) a childless senior citizen, against such of his relative, referred to in clause (g) of section 2.
(2) The obligation of the children or relative as the case may be, to maintain a senior citizen extends to the needs of such citizen so that senior citizen may lead a normal life. (3) The obligation of the children to maintain his or her parent extends to the needs of such parent either father or mother or both, as the case may be, so that such parent may lead a normal life.
(4) Any person being a relative of a senior citizen and having sufficient means shall maintain such senior citizen provided he is in possession of the property of such senior citizen or he would inherit the property of such senior citizen:
Provided that where more than one relatives are entitled to inherit the property of a senior citizen, the maintenance shall be payable by such relative in the proportion in which they would inherit his property.
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 organization authorized by him; or
(c) the Tribunal may take cognizance suo motu.
Explanation.‐ For the purposes of this section "organization" means any voluntary association registered under the Societies Registration Act, 1860 (21 of 1860), or any other law for the time being in force.
3
(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 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 sub‐section (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 filed 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 4 while, or any part of each monthʹs' 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 used 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. Jurisdiction and procedure.‐ (1) The proceedings under section 5 may be taken against any children or relative in any district‐
(a) where the resides or last resided; or
(b) where children or relative resides.
(2) On receipt of the application under section 5, the Tribunal shall issue a process for producing the presence of children or relative against whom the application is filed. (3) For securing the attendance of children or relative the Tribunal shall have the power of a Judicial Magistrate of first class as provided under the Code of Criminal Procedure, 1973 (2 of 1974).
(4) All evidence to such proceedings shall be taken in the presence of the children or relative against whom an order for payment of maintenance is proposed to be made, and shall be recorded in the manner prescribed for summons cases:
Provided that if the Tribunal is satisfied that the children or relative against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the Tribunal, the Tribunal may proceed to hear and determine the case ex parte.5
(5) Where the children or relative is residing out of India, the summons shall be served by the Tribunal through such authority, as the Central Government may by notification in the Official Gazette, specify in this behalf.
(6) The Tribunal before hearing an application under Section 5 may, refer the same to a Conciliation Officer and such Conciliation Officer shall submit his findings within one month and if amicable settlement has been arrived at, the Tribunal shall pass an order to that effect.
Explanation.‐For the purposes of this sub‐section "Conciliation Officer" means any person or representative of an organization referred to in Explanation to sub‐section (1) of Section 5 or the Maintenance Officer designated by the State Government under sub‐ section (1) of section 18 or any other person nominated by the Tribunal for this purpose. "
Section 4 of the Act of 2007 provides that, when, a senior citizen including a parent who is unable to maintain himself from his own earning or out of the property owned by him shall be enable to make an application under Section 5. Sub‐Sections 2, 3 and 4 of Section 4 casts an obligation on the children or the relative to maintain their parents and senior citizens as the case may be.
Section 5 of the Act of 2007 contemplates an application for maintenance under Section 4 to be made by the senior citizen or the parent as the case may be. It also allows the Tribunal to take cognizance suo motu. Sub‐section 3 of Section 5 requires the Tribunal to determine the amount of maintenance required to be paid to the senior citizen or the parents, as the case may be.
Section 6 deals with the jurisdiction and procedure to be followed by the Tribunal.
On a plain reading of the provisions of the Act of 2007 a landlord‐tenant dispute, between senior citizens, even if they be so, cannot come within the 6 jurisdiction, scope, ambit and consideration of Tribunal constituted under the Act of 2007. The impugned order is, therefore, wholly without jurisdiction and is quashed. No authority will implement such order or any subsequent order that may be passed by the Tribunal between the private parties, in any manner whatsoever.
W. P. No.15859 (W) of 2019 is disposed of.
No order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Debangsu Basak, J.)