R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10th DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.38272 OF 2017(GM-RES) BETWEEN:
MRS.JESSIE MARY FERNANDES W/O MR.SEBASTIAN FERNANDES AGED ABOUT 78 YEARS RESIDING AT NO.16, ALBERT STREET RICHMOND TOWN BANGALORE – 560 025.
(By MRS.ANU CHENGAPPA, P , ADV.) AND:
1. STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY HOME DEPARTMENT VIDHANA SOUDHA VIDHANA VEEDHI BANGALORE – 560 001.
2. SRI.V.SHANKAR DEPUTY COMMISSIONER & DISTRICT MAGISTRATE BANGALORE DISTRICT BANGALORE – 560 001.
3. SRI.K.RANGANATH ASSISTANT COMMISSIONER BANGALORE NORTH SUB-DIVISION BANGALORE – 560 001.
4. THE COMMISSIONER BANGALORE CITY POLICE … PETITIONER NO.1, INFANTRY ROAD BANGALORE – 560 001.
5. DEPUTY COMMISSIONER OF POLICE(CENTRAL) KASTURBA ROAD BENGALURU – 560 001.
6. ASSISTANT COMMISSIONER OF POLICE ASHOKNAGAR POLICE STATION COMMISSARIAT ROAD BANGALORE – 560 025.
7. THE STATION HOUSE OFFICER ASHOKNAGAR POLICE STATION COMMISSARIAT ROAD BANGALORE – 560 001.
8. VASANTH V FERNANDES S/O MR.SEBASTIAN FERNANDES AGED ABOUT 49 YEARS.
9. FLAVIA MARITA W/O VASANTH.V.FERNANDES AGED ABOUT 42 YEARS.
BOTH RESPONDENTS 8 & 9 ARE RESIDING AT NO.16, ALBERT STREET RICHMOND TOWN BANGALORE – 560 025.
10. P.B.KIRAN ASHOKNAGAR POLICE STATION COMMISSARIAT ROAD BANGALORE – 560 025.
… RESPONDENTS (By MR.Y.D.HARSHA, AGA FOR R-1, R-4 TO R-7 MR.MAHBOOB ALI KHAN, ADV.FOR R-8 & R-9 R-2 & R-3 & R-10 SERVED AND UNREPRESENTED) - - -
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE IN PART THE IMPUGNED ORDER DATED 07.06.2017 AT ANNEX-A IN SO FAR AS THE MATER HAS BEEN REMANDED FOR RE-ENQUIRY AND ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 29.03.2019, COMING ON FOR PRONOUNCEMENT THIS DAY, THIS COURT PRONOUNCED THE FOLLOWING:-
ORDER Smt.Anu Chengappa P., learned counsel for the petitioner.
Sri.Y.D.Harsha, learned Additional Government Advocate for the respondent Nos.1, 4 to 7.
Sri.Mahboob Ali Khan, learned counsel for the respondent Nos.8 and 9.
2. The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.
3. In this petition under Article 227 of the Constitution of India, the petitioner inter alia has prayed for the following reliefs:
“1. Set aside in part the impugned order dated 07.06.2017 in MAG(4) Misc.C.R.132/2016-17(Annexure-A) in so far as the matter has been remanded for re- enquiry.
2. Restore the order dated: 18.11.2015 in MSC/35/2014-15 (Annexure- C).
3. Direct the First, Second, Third, Fourth, Fifth, Sixth and Seventh Respondents to evict the Eighth and Ninth Respondents from No.16, Albert Street, Richmond Town, Bangalore -25 according to the order dated: 18.11.2015 in MSC/35/2014-15 (Annexure-C) without resorting to a bailiff.
4. Direct the First, Fourth, Fifth and Sixth Respondents to initiate enquiry and undertake suitable action against the Tenth Respondent for the illegal and unauthorized actions committed by him against the Petitioner and her family members.
5. Direct the First Respondent to initiate enquiry and undertake suitable action against the Second and Third Respondents for the unreasonable delay in deciding and executing of orders pertaining to the Petitioner’s application and appeal.
6. Direct the Tenth Respondent to pay the Petitioner Rs.3,00,00,000/-(Rupees Three Crores Only) as damages and compensation for the immense mental agony and humiliation and anxiety caused by the him to the Petitioner by his actions against the Petitioner, her late husband and youngest son.
7. Direct each of the Second and Third Respondents to pay the Petitioner Rs.1,00,00,000/-(Rupees One Crore Only) for the harassment and mental agony caused by them due to the inordinate delay and untenable orders passed by them culminating in the death of the Petitioner’s husband.
8. Direct the Fourth, Fifth, Sixth and Seventh Respondents to pay Rs.7,00,00,000/-(Rupees Seven Crores only) as damages and compensation for the immense mental agony and humiliation and anxiety caused by them to the Petitioner and her late husband and youngest son.”
4. In order to appreciate the petitioner’s grievance, few relevant facts need mention which are stated hereinafter. The petitioner and her husband by a registered sale deed dated 07.08.1992, purchased the house at Albert Street, Richmond Town, Bangalore. Some time in the year 1996, respondent No. 8, who is the fourth son of the petitioner got married with respondent No.9. It is averred in the writ petition that during the first pregnancy of respondent No.9, respondent Nos. 8 and 9 requested the petitioner and her husband to occupy a portion of their house till delivery of their first child. The petitioner and her husband permitted respondents Nos.8 and 9 to occupy a portion of the house. It is also pleaded in the petition that on 12.06.2011, respondent Nos.8 and 9 assaulted the petitioner and her husband and a complaint was lodged with respondent No. 7. Thereafter on 07.10.2011 by two separate gift deeds, the petitioner’s husband transferred one third share in the property to the petitioner and another one third share to his youngest son namely, Harish Fernandes. Thereafter, by a settlement deed dated 22.05.2014, petitioner’s husband transferred remaining one third share of the property in favor of the petitioner. Thus, the petitioner became the owner two third share of the property in question. The petitioner by a release dated 06.08.2014, transferred her two third share in favour of her youngest son namely, Harish Fernandes. However, she retained right of residence in the house in question. Thus, the youngest son of the petitioner namely, Harish Fernandes became the absolute owner of the property in question.
5. Sometime in the year 2014, the petitioner as well her husband filed an application under Section 21 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as ‘the Act’ for short) before the Assistant Commissioner seeking the relief of eviction of respondent Nos.8 and 9 from the property in question on account of extreme and consistent mental and physical harassment by respondents Nos.8 and 9. The petitioner on 20.01.2015, submitted a complaint to respondent No.7 against respondent No.9 and a constable for threatening her. The Assistant Commissioner by an order dated 18.11.2015, directed respondent Nos.4 to 6 to evict respondent Nos.8 and 9. However, the aforesaid order was recalled by the Assistant Commissioner on 21.11.2015 on the ground that since both the parties were available, a re-enquiry was conducted and as the petitioner informed that she is taking back the application, the re-enquiry of the case was fixed to 25.11.2015. Thereafter, the Assistant Commissioner held the re-enquiry and passed an order dated 03.08.2016 by which the petition filed by the petitioner was disposed of with certain direction to respondents. Being aggrieved, the petitioner filed an appeal before the Deputy Commissioner. The Deputy Commissioner by an order dated 07.06.2017, quashed the order passed by the Assistant Commissioner and remitted the case to him for a fresh enquiry and to re-consider the request made by the petitioner. In the aforesaid factual background, the petitioner has approached this Court.
6. Learned counsel for the petitioner has submitted that respondent No. 1 has an intrinsic duty to ensure that respondent Nos.2 to 7 perform their duties in accordance with law and to ensure that respondent Nos.2 to 7 do not harass the petitioner. It is pointed out that under Rule 16(6) of Karnataka Maintenance and Welfare of Parents and Senior Citizens Rules 2009, the Appellate Tribunal has to pronounce orders within one month from the date of receipt of appeal. However, the appeal was decided after eight months after the date of filing the same. It is further submitted that the Assistant Commissioner had no authority to recall the order dated 18.11.2015 by an order dated 21.11.2015, and the petitioner was coerced to affix her signature on the order sheet without even informing her as to what was written in the order sheet as the petitioner cannot read Kannada. It is also pointed out that the onus of executing the orders passed under the Act is on respondent Nos.6 and 7. However, they have failed to discharge their duties and have colluded with respondents Nos.8 and 9. It is also pointed out that respondent No.7 has been keeping track of movements of petitioner, her youngest son and his tenants and false cases were foisted against them as well. It is submitted that the personnel of respondent No.7 have barged into the home of the petitioner, broke open the front door lock, ransacked the house, molested lady tenants of the petitioner’s son and forcibly made respondent Nos.8 and 9 to occupy the house of the petitioner in the night intervening 12th and 13th December 2016.
7. Learned counsel for the petitioner has also given a compilation containing the details along with photographs giving details of nature of harassment, mental agony suffered by the petitioner, her husband, family and friends. It is further submitted that a relief of eviction of respondent Nos.8 and 9 from the premises in question as well as compensation can also be awarded in proceeding under Article 226 of the Constitution of India. Lastly, it is urged that the Appellate Authority could not have remitted the matter to the Assistant Commissioner and ought to have decided the appeal on merits as it has no power of remand. In support of aforesaid submissions, reliance has been placed on the decisions in the cases of ‘S.NAMBI NARAYANAN Vs. SIBY MATHEWS AND ORS.’ in Civil Appeal Nos.6637-38/2018 decided on 14.09.2018 ‘DR.ASHWANI KUMAR Vs. UNION OF INDIA & ORS.’ in W.P.(C) No.193/2016, ‘SUBE SINGH Vs. STATE OF HARYANA AND ORS. in W.P.(Crl.) No.237/1998 decided on 03.02.2006 ‘NILABATI BEHERA Vs. STATE OF ORISSA AND ORS.’ in W.P.No.488/1988 decided on 24.03.1993, ‘RUDUL SAH Vs. STATE OF BIHAR AND ORS.’ in W.P. (Crl.) No.1387/1982 decided on 01.08.1983, ‘SAHIDUN NISA Vs. LIEUTENANT GOVERNOR AND ORS.’ AIR 2018 Cal 82 of the Supreme Court of India, ‘PARMAR DAHYABHAI HEMABHAI Vs. PARMAR PRAKASHBHAI DAHYABHAI & 1 ANR. (2013) 2 GLR 1197, ‘JAYANTRAM VALLABHDAS MESWANIA Vs. VALLABHDAS GOVINDRAM MESWANIA’ AIR 2013 GUJ 160 of the High Court of Gujarat, ‘H.MARIYAM BEEVI Vs. THE SECRETARY TO GOVERNMENT, GOVERNMENT OF TAMIL NADU, SOCIAL WELFARE AND NUTRITIOUS MEALS SCHEME DEPARTMENT’ in W.P.No.22122/2010 decided on 27.06.2011 of the High Court of Madras, ‘SUNNY PAUL AND ORS. Vs. STATE NCT OF DELHI AND ORS.’ 2017 (2) RCR (Civil) 404, ‘SHADAB KHAIRI AND ORS. Vs. THE STATE AND ORS.’ in CM Appl.44840/2017 and connected matters decided on 22.02.2018, ‘ANITA BARREJA Vs. JAGDISH LAL BARREJA’ in CM No.38198/2016 and connected matters, ‘PREMPAL AND ORS. Vs. THE COMMISSIONER OF POLICE AND ORS.’ in W.P.(C) No.11079/2006 decided on 25.03.2010 of the High Court of Delhi, ‘SAVITA SHARMA AND ORS. Vs. DISTRICT MAGISTRATE AND ORS.’ 2016 (2) RCR (CRIMINAL) 931, ‘T.S.VIRK AND ORS. Vs.
STATE OF PUNJAB AND ORS.’ in Civil W.P.No.10126/2016, ‘SUNNY KUMAR AND ORS. Vs. STATE OF PUNJAB AND ORS.’ in Civil W.P.No.24733/2015, ‘MANMOHAN SINGH Vs. UNION TERRITORY, CHANDIGARH AND ORS.’ 2016 (1) RCR (Civil) 838 decided on 02.11.2015, of the High Court of Punjab and Haryana, ‘PRAMOD RANJANKAR AND ORS. Vs. ARUNASHANKAR AND ORS.’ AIR 2018 Chh 150 of the High Court of Chhattisgarh, ‘CHITTARANJAN BEHERA Vs. STATE OF ORISSA AND ORS.’ in W.P.(Crl.) No.385/2009 decided on 25.01.2018 of the High Court of Orissa.
8. On the other hand, learned Additional Government Advocate for respondents Nos.1, 4, 5, 6 and 7 submitted that the action has been taken by the official respondents in good faith and in furtherance of the provisions of the Act and therefore, the actions taken by aforesaid respondents are protected under Section 28 of the Act, as well as Sections 169 and 170 of the Karnataka Police Act 1963 and Section 197 of the Code of Criminal Procedure 1973. Learned Senior counsel for the respondent Nos.8 and 9 submitted that unsubstantiated allegations have been made against respondent Nos. 8 and 9 by the petitioner with her sole motive to throw the aforesaid respondents out. It is submitted that respondent Nos.8 and 9 were put in possession of part of first floor of the property in question. It is also pointed out that civil suit was filed by youngest son of the petitioner namely Harish Fernandes, which was withdrawn. It is further submitted that reliefs claimed by the petitioner in the writ petition cannot be granted and under Section 16(4) of the Act, as the Appellate Authority can either allow or reject the appeal but cannot remand the appeal. It is argued that power to remand has to be specifically conferred and since the Assistant Commissioner had passed an order ex-parte against respondent Nos.8 and 9 on 18.11.2015, the same was rightly recalled. It is also submitted that doctrine of literal interpretation has to be invoked while interpreting the provisions of Section 16(4) of the Act. In support of aforesaid submissions, reference has been made to decisions in the cases of ‘UNION OF INDIA AND ANOTHER Vs. PFIZER LIMITED AND OTHERS’ AIR 2018 SC 265, ‘MUKUND DEWANGAN Vs. ORIENTAL INSURANCE COMPANY LIMITED’ AIR 2017 SC 3668 of the Supreme Court of India, ‘SCHNEIDER ELECTRIC IT BUSINESS INDIA PRIVATE LIMITED, JIGANI INDUSTRIAL AREA, BENGALURU Vs. AMERICAN POWER CONVERSION (INDIA) PRIVATE LIMITED EMPLOYEES’ UNION, BAGALGUNTE, NAGASANDRA POST, BENGALURU AND ANOTHER’ 2018(2) Kar.L.J. 229 and ‘WEST COAST PAPERS MILLS LIMITED, DANDELI UTTARA KANNADA Vs. ADARSHAPPA S.KADROLLI 2018(3) KCCR 2356`.
9. I have considered the submissions made by both the sides and have perused the record. Before proceeding further, it is apposite to take note of relevant provisions of the Act. Section 4 of the Act deals with maintenance of parents and senior citizens. Under Section 5 of the Act, a senior citizen or a parent can make an application for maintenance to the tribunal. Section 6 of the Act deals with jurisdiction and procedure of the tribunal, whereas Section 8 of the Act provides for summary procedure in case of a enquiry. Section 9 of the Act empowers the tribunal to pass an order of maintenance in favour of a senior citizen or a parent, whereas Section 10 deals with alternation in the amount of maintenance. Section 11 of the Act provides for a mechanism for enforcement of order of maintenance. Section 16 of the Act deals with appeals. The relevant extract of Section 16 reads as under:
16. Appeals: (1) Any senior citizen or a parent, as the case may be, aggrieved by an order of a Tribunal may, within sixty days from the date of the order, prefer an appeal to the Appellate Tribunal:
Provided that on appeal, the children or relative who is required to pay any amount in terms of such maintenance order shall continue to pay to such parent the amount so ordered, in the manner directed by the Appellate Tribunal.
Provided further that the Appellate Tribunal may, entertain the appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.
(2) On receipt of an appeal, the Appellate Tribunal shall, cause a notice to be served upon the respondent.
(3) The Appellate Tribunal may call for the record of proceedings from the Tribunal against whose order the appeal is preferred.
(4) The Appellate Tribunal may, after examining the appeal and the records called for either allow or reject the appeal.
(5) The Appellate Tribunal shall, adjudicate and decide upon the appeal filed against the order of the Tribunal and the order of the Appellate Tribunal shall be final:
Provided that no appeal shall be rejected unless an opportunity has given to both the parties of being heard in person or through a duly authorized representative.
(6) The Appellate Tribunal shall make an endeavour to pronounce its order in writing within one month of the receipt of an appeal.
10. Section 21 of the Act mandates the State Government to take measures to ensure for welfare of senior citizens. It inter alia provides that State Government shall take all measures to ensure that provisions of the Act are given wide publicity through public media including television, radio and the print at regular intervals and the state government shall also ensure effective coordination between the services provided by concerned ministries or departments dealing with law, home affairs, health and welfare and to address the issues relating to the welfare of senior citizens and periodical review of the same. Section 23 of the Act provides the contingencies where the transfer of property by a senior citizen after commencement of the Act by gift or otherwise, is declared void. Section 28 of the Act protects the officers of the central government or state government or local authority in respect of the action taken by them under the Act in good faith.
11. From perusal of relevant provisions of the Act, it is axiomatic that the maintenance tribunal can pass orders either under Section 5 of the Act or under Section 23 of the Act and against the orders passed by the maintenance tribunal an appeal lies under Section 16 of the Act. Section 16(4) of the Act provides that the appellate tribunal may after examining the appeal either allow or reject the appeal, whereas Section 16(5) of the Act empowers the appellate tribunal to adjudicate and decide the appeal filed against the order of the tribunal.
12. At this stage, it is apposite to deal with the contention made by learned counsel for the parties that the appellate authority under the Act has the power either to allow or dismiss the appeal but has no power to remand the same to the maintenance tribunal. It is well settled in law that an express grant of statutory power carries with it by necessary implication the authority to use by all reasonable means to make such grant effective. The powers conferred on the Appellate Authority by necessary implication will confer all powers and duties incidental and necessary to make the exercise of those powers fully effective. [See: ‘INCOME TAX OFFICE CANNANORE VS. M.K.MOHAMMED KUNHI’, AIR 1969 SC 430, ‘JAMAL UDDIN AHMAD VS. ABU SALEH NAJMUDDIN AND ANOTHER’, AIR 2003 SC 1917, ‘MARDIA CHEMICALS LTD AND OTHERS VS. UNION OF INDIA AND OTHERS’, AIR 2004 SC 2371 and ‘SAKIRI VASU VS. STATE OF UTTAR PRADESH AND OTHERS’, AIR 2008 SC 907].
In the instant case, Section 16(4) and 16(5) of the Act empowers the appellate tribunal to adjudicate and decide the appeal filed against the order of the maintenance tribunal and either to allow or reject the appeal. The expression ‘adjudicate’ has a well settled legal connotation viz., to hear or try and determine. [SEE: BLACK’S LAW DICTIONARY, VI EDITION].
Thus, the appellate authority is conferred with the power to allow the appeal which necessarily implies that it has power to annul the order passed by the maintenance tribunal. The power to annul an order would imply that appellate authority has power to remand the matter to the maintenance tribunal for fresh decision. However, it is to be emphasized that the power of remand should not be exercised by the Appellate Authority in a casual or cavalier manner. Even otherwise it is settled in law that power of remand has to be exercised sparingly and by assigning cogent reasons. In the context of the objects of the Act, since, the Act is intended to provide a speedy remedy to the senior citizen, it needs little emphasis that power of remand should be exercised by the Appellate Authority only in exceptional circumstances. Therefore, the submission made by learned counsel for the parties that the Appellate Authority cannot remand the matter cannot be accepted.
13. The Supreme Court in ‘BUDHIA SWAIN AND OTHERS VS. GOPINATH DEB AND OTHERS’ AIR 1999 SC 2089 has held that a distinction has to be drawn between lack of jurisdiction and mere error in exercise of jurisdiction. The former strikes at the root of the exercise and want of jurisdiction may vitiate the proceeding rendering them and the order passed therein a nullity. The court / Tribunal therefore, in such a case would have the power to recall the order. In the instant case, the order dated 18.11.2015 reads as under:
“Complainants informed that, the respondents are not allowing the father and mother to enter to room, causing them torture, the said house is in the name of Harish, as the respondents are troubling the Seniors and they do not have any rights to reside there, hence, instruct the police to evict them from the house and provide security to the seniors”
14. The aforesaid order was admittedly passed in flagrant violation of principles of natural justice inasmuch as neither any notice nor any opportunity of hearing was afforded to the respondent Nos.8 & 9 and therefore, the aforesaid order was non est in the eye of law. Therefore, the same was rightly recalled by the maintenance tribunal by order dated 21.11.2015. Therefore, the submission that the order dated 18.11.2015 could not have been recalled by the maintenance tribunal also does not deserve acceptance.
15. The Supreme Court in ‘S.N. Mukherjee v.
Union of India’, (1990) 4 SCC 594 has held that the decisions of this Court referred to above indicate that with regard to the requirement to record reasons the approach of this Court is more in line with that of the American courts. An important consideration which has weighed with the court for holding that an administrative authority exercising quasi-judicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. In ‘VICTORIA MEMORIAL HALL vs. HOWRAH GANATANTRIK NAGRIK’, 2010 (3) SCC 732, the supreme court held that reasons are the heartbeat of every conclusion, apart from being an essential feature of the principles of natural justice, that ensure transparency and fairness, in the decision making process. [Also See: (2015) 12 SCC 291 , UNION OF INDIA VS. RAVINDER KUMAR’,(2012) 5 SCC 480 , UNION OF INDIA AND ANOTHER VS. TALWINDER SINGH’, (2010) 13 SCC 336 , SANT LAL GUPTA AND OTHERS VS. MODERN CO-OPERATIVE GROUP HOUSING SOCIETY LIMITED AND OTHERS’,(2010) 9 SCC 486, MAYA DEVI VS. RAJ KUMARI BATRA AND OTHERS’,UNION OF INDIA AND ANOTHER VS. KUMHO PETROCHEMICALS COMPANY LIMITED] 16. Now I may advert to the order passed by the Appellate Authority in the backdrop of aforesaid well settled legal position. The relevant extract of the order passed by the Appellate Authority reads as under:
Carefully perused the appeal available in the file and written objections filed by the respondent, a few information filed by the appellant is referred hereinafter. “As the respondent do not have right in the disputed property so instructed to the Police to evict them immediately from the house and to give security and facility to the senior citizens; the order made by the Assistant Commissioner on 18.11.2015 is the order made without enquiring the respondents since the point has been brought to the kind notice of the Assistant Commissioner that this authority do not have opportunity to pass eviction order from any property under the Act, based on this, the impugned order has been passed as mentioned in the order sheet dated 8.11.2015, thereafter while making the order on 3.8.2016 “a) The respondent shall not interrupt the free flow of water and electricity to portion on house in which the petitioner and her husband are living.
b) The respondents are hereby directed not to hurt physically or mentally the petitioner and her husband.
c) The respondents shall extend all welfare measures to petitioner and her husband which are necessary for leading uninterrupted and peace full life.
d) The petitioner and her husband are not liberty to seek police help whenever necessary if any one of the conditions imposed are violated directly or indirectly by the respondents.”
As these orders are contradictory each other so the appellant prayed to dismiss the order dated 3.8.2016 and to make order to implement the order dated 18.11.2015. Therefore, it has found that it is appropriate to dismiss the order dated 3.08.2016 by allowing the appeal and to resume to the Assistant Commissioner for re- trial/re-enquiry of the case, hence ordered as hereunder:
ORDER Appellant has filed this appeal in the Office of this Authority on 07.10.2016, ordered allowing the appeal filed under Rule 17 (1) of Senior Citizens Protection Act, 2007 against the order made as per case Number:MSC/35/2014-15 on 3.08.2016 made by the Assistant Commissioner, Bangalore North Sub- Division, Bangalore and President Senior Citizens Protection Board, for the reasons referred herein above, the appeal is allowed and dismissed the imputed order and resumed the case to the Assistant Commissioner for re-trial/re-enquiry and instructed to re-verify the request of the Senior Citizens.”
17. From careful scrutiny of the order passed by the Appellate Authority, it is evident that no reasons have been assigned by the Appellate Authority for recording its conclusion. The order is cryptic and has been passed in a cavalier manner. The order of remand is necessary only if it is found that on the basis of the material available on record, the matter cannot be decided by the appellate authority and the order of remand should be made for good reasons. In this connection reference may be made to the decision of the Supreme Court in ‘STATE OF UTTARANCHAL VS. SUNIL KUMAR VAISH’, (2011) 8 SCC 670 and ‘BHEL VS. M.MANI’, (2018) 1 SCC 285. The order maintains a stoic silence for remanding the matter to the maintenance tribunal. The power of remand has to be exercised sparingly and in exceptional circumstances by assigning cogent reasons, where an authority on the basis of material available before it, is unable to decide an issue pending before it. In the instant case, the impugned order has been passed, which is in conflict with the object of the Act. The impugned order has been passed in violation of principles of natural justice as recording the reasons is part of principles of natural justice. The impugned order therefore cannot be sustained in the eye of law. It is accordingly quashed. The Appellate Authority is directed to decide an appeal afresh by a speaking order in the light of mandate contained in Section 16(6) of the Act within a period of one month from today. Since, the matter has been remitted to the Appellate Tribunal, therefore, it is not necessary for this court to deal with rival contentions and the reliefs sought which even otherwise have been made and prayed for before this court for the first time. The Appellate Authority shall also adjudicate the issue whether or not the relief of eviction can be granted to the petitioner in a proceeding under the Act and shall decide the appeal on merits. Needless to state that it will be open for the parties to raise all such grounds as are admissible to them in law before the appellate Tribunal.
With the aforesaid directions, the petition is disposed of.
Sd/- JUDGE RV/SS