IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE 13TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.1171 OF 2019 (GM-RES) BETWEEN:
SKANDA SHARATH S/O P. RAJAGOPAL AGED ABOUT 36 YEARS R/AT NO.815/49, 11TH CROSS VAIYALIKAVAL BENGALURU – 560 003. (By Mr. S.N. BHAT, ADV.) AND:
1. ASST. COMMISSIONER TRIBUNAL OF MAINTENANCE AND … PETITIONER WELFARE OF PARENTS AND SENIOR CITIZENS ASSISTANT COMMISSION BENGALURU NORTH-DIVISION BENGALURU – 560 001.
2. SRI. P. RAJAGOPAL S/O PAPA SHETTY AGED ABOUT 74 YEARS.
3. VIJAYA A.
W/O P. RAJAGOPAL AGED ABOUT 71 YEARS.
BOTH ARE R/AT NO.815/49, 11TH CROSS VAIYALIKAVAL BENGALURU – 560 003.
4. SMT. R. SHREE W/O SRIKANTH AGED ABOUT 44 YEARS R/AT NO.815/49, GROUND FLOOR 11TH CROSS, VAIYALIKAVAL BENGALURU – 560 003.
5. R. BHARATHI W/O SRI KUMAR AGED ABOUT 40 YEARS NO.815/49, FIRST FLOOR 11TH CROSS, VAIYALIKAVAL BENGALURU – 560 003.
… RESPONDENTS (By Mr. RAJASHEKHARA SEERI, ADV. FOR C/R2 & R3 Mr. VIJAY KUMAR A. PATIL, AGA (SERVED)) - - -
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 04.12.2018 PASSED BY THE R1 (ANNEXURE-D) BY DISMISSING THE PETITION FILED BY THE R2 AND 3 BEFORE R1. GRANT AN INTERIM ORDER TO STAY THE ORDER DATED 4.12.2018 PASSED BY THE R1 IN ANNEXURE-D TILL THE DISPOSAL FO THIS WRIT PETITION & ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.S,N.Bhat, learned counsel for the petitioner.
Mr.Rajashekhara Seeri, learned counsel for caveator/respondent Nos.2 and 3.
Mr.Vijay Kumar A. Patil, learned Additional Government Advocate for respondent No.1.
2. This writ petition is admitted for hearing.
With consent of the parties, the same is heard finally.
3. On admitted facts, pure questions of law arise for consideration in this writ petition viz., (i) Whether a claim for eviction of children from the property is maintainable under Section 4 read with Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, (hereinafter referred to as ‘the Act’ for short) when the children have been permitted to stay in the property belonging to the senior citizen and (ii) If the children have been permitted to stay in the property belonging to the senior citizen the same would be covered under the expression transfer of the property’ as defined under Section 23 of the Act?
4. The background facts leading to filing of the writ petition briefly stated are that respondent Nos. 2 and 3 are the parents of the petitioner. The aforesaid respondents filed a petition under Section 5 read with Section 23 of the Act before the Tribunal inter alia on the ground that respondent No.2 is the owner of the suit schedule property, which is a residential house. It is averred in the petition that the petitioner herein subjected respondent Nos.2 and 3 to misbehavior, as a result of which a complaint was registered against him by the Vyallikaval Police Station vide Crime No.58/2017 and a charge sheet was filed against the petitioner. It is stated that the petitioner is in possession of first floor of the house and respondent Nos.2 and 3 asked the petitioner to vacate the same so that respondents 2 and 3 could let out the property, as they needed money for their maintenance. It is pleaded that thereupon the petitioner herein and his wife started misbehaving with respondent Nos.2 and 3, and on 16.07.2018, the petitioner and his wife manhandled respondent No.3 by pushing her from the staircase, due to which she sustained injuries. Thereupon, another complaint was also filed against respondent No.3 vide Crime No.130/2008 for the offences punishable under Sections 506, 341, 504 and 323 r/w 34 of Indian Penal Code,1860 (hereinafter referred to as ‘the Code’ for short). In the aforesaid backdrop, the respondent Nos.2 and 3 filed an application seeking the relief of handing over of the vacant possession of the residential unit as well as a direction to the petitioner to maintain respondent Nos.2 and 3.
5. The petitioner entered appearance in the proceeding and filed a reply, in which inter alia it was averred that respondents are retired employees of Bank and State Government respectively and are getting a pension of approximately Rs.70,000/- and therefore, have no locus to maintain the proceeding under the Act.
6. The Tribunal by an order dated 04.12.2018 inter alia directed the petitioner to pay a sum of Rs.10,000/- p.m. to respondent Nos.2 and 3 and to hand over the vacant physical possession of the residential units of the schedule property occupied by him within a period of thirty days of the order and not to interfere with the possession of the respondent Nos.2 and 3 over the same. In the aforesaid factual background, the petitioner has approached this court by seeking a writ of certiorari for quashment of the order dated 04.12.2018 passed by the Tribunal.
7. Learned counsel for the petitioner submitted that provisions of Section 23 of the Act are not attracted to the fact situation of the case, as the property in question was not transferred to the petitioner and the petitioner is in permissive possession of the part of schedule property. It is further submitted that the respondent Nos.2 and 3 have sufficient means to maintain themselves. In support of aforesaid submissions, reliance has been placed on the decision of High Court of Kerala in ‘MAVILA SATHI VS. STATE OF KERALA AND OTHERS’, W.P.(C) NO.9108/2014. On the other hand, learned counsel for respondent Nos.2 and 3 have invited the attention of this Court to the provisions of section 2(d),(f), Section 4 and Section 23 of the Act and have submitted that the provisions of the Act have to be read in a purposive manner. In support of aforesaid submissions, reliance has been placed on a decisions in ‘DATTATREY SHIVAJI MANE VS. LILABAI SHIVAJI MANE AND OTHERS’, W.P.NO.10611/2018, ‘SUNNY PAUL & ANR. VS. STATE NCT OF DELHI & ORS.’, W.P.(C) 10463/2015 & CM APPL.43227/2016, NASIR VS. GOVT. OF NCT OF DELHI & ORS.’, W.P.(C)9717/2015, ‘JAYANTRAM VALLABHDAS MESWANIA VS. VALLABHDAS GOVINDRAM MESWANIA’, SPECIAL CIVIL APPLICATION NO.13954/2012, ‘ASHOK KUMAR AND OTHERS VS. DISTRICT COMMISSIONER CUM DISTRICT MAGISTRATE AND ANOTHER’, CWP NO.16010/2017.
8. I have considered the submissions on both the sides and have perused the record. Our Society is a Traditional society, and its core value is to provide care for elderly and to treat them with respect. However, with changing times, the joint family system has gone into the oblivion and nuclear families have emerged. Therefore, many elderly persons are forced to spend evening of their life in loneliness and they are subjected to emotional neglect and are deprived of physical and financial support. Therefore, the Act has been enacted with a object to provide more effective provisions for maintenance and welfare of parents and senior citizens guaranteed and recognized under Constitution of India and matters connected ancillary thereto. The Act provides for appropriate mechanism to set up need based maintenance to parents and senior citizens and for nationalization of institutionalization, suitable mechanism for protection of life and property of older persons.
9. It is well settled Principle of Statutory construction that Provisions of the Act should be construed in the context of object of the Act [See: ‘S. GOPAL REDDY VS. STATE OF ANDHARA PRADESH’, (1996) 4 SCC 596]. It is also a well known rule of Statutory interpretation that text and context of the entire Act must be looked into while interpreting provisions of the Act and a purposive approach is necessary [See: ‘SAKSHI VS. UNION OF INDIA’, (2004) 5 SCC 518]. The Court would be justified in giving a provision to perpetrate object of the Act [see: ‘PRATAP CHANDRA MEHTA VS. STATE BAR COUNCIL OF MADHYA PRADESH’, (2011) 9 SCC 573 and ‘YAKUB ABDUL RAZAK MEMON VS. STATE OF MAHARASHTRA’, (2013) 13 SCC 1].
10. Before proceeding further in the context of aforesaid well settled legal principles, it is apposite to take note of relevant extract of Section 2(b)(d) & (f), Section 4 and Section 23(2) of the Act, which reads as under:
2. Definitions.-In this Act, unless the context otherwise requires,— (b) “maintenance” includes provision for food, clothing, residence and medical attendance and treatment;
(d) “parent” means father or mother whether biological, adoptive or step father or step mother, as the case may be, whether or not the father or the mother is a senior citizen;
(f) “property” means property of any kind, whether movable or immovable, ancestral or self acquired, tangible or intangible and includes rights or interests in such property;
Section 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.
23 Transfer of property to be void in certain circumstances. — xxxx (2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right.
11. Thus, from careful scrutiny of the aforesaid statutory provision, it is evident that Section 4 of the Act provides a remedy to the senior citizen to seek maintenance, whereas, Section 23 of the Act provides a remedy to senior citizen to seek a declaration that transfer of the property is void. The object of the Act is to recognize the right of the senior citizen or parents to live peacefully and with dignity. Sections 4 & 23 of the Act are separate and distinct remedies and the claim for maintenance is not a condition precedent for passing an order of eviction under Section 23 of the Act.
12. The definition of the property as provided under Section 2(f) of the Act is an inclusive definition and includes the rights or interest in such a property and is not merely limited to ownership rights. Thus, if the expression ‘property’ as defined under Section 2(f) of the Act is read in conjunction with Section 23(1) of the Act, it is axiomatic that the expression ‘transfer of property’ used in Section 23(1) of the Act would include even permission to occupy the property of a senior citizen as the same would tantamount to creating an interest in the immovable property. If a relative of a senior citizen occupies the property, a licence is created in his favour in the immovable property as otherwise it would be unlawful to be in occupation of the property in the absence of such a right. It is well settled in law that license can be oral [see: ‘RAM SARUP GUPTA VS. BISHAN NARAIN INTER COLLEGE’, (1987) 2 SCC 555). The aforesaid interpretation has to be given bearing in mind the object of the Act which aims at providing protection of life, liberty, and property of elderly persons. It is well settled in law that a Statutory Authority/Tribunal should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its function effectively for the purpose of doing justice between the parties. When any power is expressly granted by the statute, that is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus, where an Act confers jurisdiction, it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary for its execution. In this connection, reference may be made to decision of Supreme Court in ‘INCOME TAX OFFICER, CANNANORE Vs. M.K.MOHAMMED KUNHI’, AIR (1969) SC 430, ‘GRINDLAYS BANK LTD. VS. CENTRAL GOVT. INDUSTRIAL TIBUNAL’, 1980 SUPP SCC 420, ‘SAKIRI VASU VS. STATE OF U.P.’, (2008) 2 SCC 409 & ‘SREI INFRASTRUCTURE FINANCE LIMITED VS. TUFF DRILLING PRIVATE LIMITED’, (2018) 11 SCC 470. In the absence of any prohibition, the Tribunal shall be deemed to possess the power to grant relief of possession to Senior Citizen or parent. If the Senior Citizen is relegated to remedy of Civil Suit to seek possession the same would be against the object of the Act, which is enacted to provide speedy remedy to parents and Senior Citizens who are in distress. I therefore, respectfully agree with the view taken in the cases of DATTATREY SHIVAJI MANE, SUNNY PAUL & ANR. NASIR, JAYANTRAM, VALLABHDAS MESWANIA, and ASHOK KUMAR AND OTHERS (supra). The decision relied upon by the petitioner in the case of MAVILA SATHI supra rendered by High Court of Kerala has no application in the fact situation of the case as in the aforesaid case, the petitioner had never refused to maintain the parent. Accordingly, both the issues are answered in the affirmative.
13. In the instant case, the petitioner has admittedly manhandled the respondent Nos.2 and 3 for which criminal cases has been registered against the petitioner vide Crime Nos.58/2017 and 130/2008 for the offences under Sections 323, 341, 504 and 506 r/w 34 of the Code . The petitioner, therefore cannot be permitted to stay in the property as he has been permitted to stay in the property subject to the light condition that he would not harm respondent Nos.2 and 3 either physically or emotionally. In view of preceding analysis, the order passed by the Tribunal neither suffers from any error apparent on the face of the record nor any jurisdictional infirmity warranting interference of this Court in exercise of powers under Article 226 of the Constitution of India. I do not find any merit in the petition. In the result, the same fails and is hereby dismissed.
Sd/- JUDGE SS