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2017 DIGILAW 694 (CAL)

Sheikh Khalil v. Hon'ble Lt. Governor

2017-08-17

SAMAPTI CHATTERJEE

body2017
JUDGMENT : SAMAPTI CHATTERJEE, J. 1. The following issues are to be determined in this case hereunder :- (i) Whether the respondent authorities are under obligation to ensure protection of the life and property of the petitioners as per Maintenance & Welfare of Parents and Senior Citizens Act, 2007? (ii) Whether the private respondent No. 5 has any authority to pressurise the petitioners to oust them from the house which was constructed by the petitioners in the Government land and petitioners admittedly have been residing over there since 1959? Fact of the Case The petitioners' case in a nutshell is as follows :- That the petitioner No. 1 is an octogenarian aged about 81 years and living in Kainchi, Krishna Nagar, Nilambur along with his wife petitioner No. 2 who is a septuagenarian aged about 75 years. Both the petitioner Nos. 1 & 2 reside in a land which was encroached long back in the year 1959. Since then petitioners have given representation to the Revenue Department for regularisation of the land in their favour. Upon receiving such representation the Deputy Commissioner had issued letter to the petitioner No. 1 with instruction to apply for regularisation of the land when proclamation inviting plans are issued by the revenue authorities. On 23rd November, 1990 a notice under Section 202 of A & N Islands LR & LRR 1966 was also issued to the petitioner No. 1 in respect of the property in question. Even on 12th May, 2015 petitioner No. 1 had given further representation to the Sub-Divisional Magistrate and Assistant Commissioner, Rangat Middle Andaman to initiate action against respondent No. 5 being the daughter and one of his son namely Nasmuddin who started troubling the petitioners to dispossess them from their house thereby putting the petitioners life in a miserable condition. Since the respondent authorities failed to pay any heed to the petitioner No. 1's representation therefore the petitioner No. 2 without finding any alternative again made a representation on 21st September, 2015 to the Director of Social Welfare thereby ventilating their grievances with prayer to protect their life and land property under Maintenance & Welfare of Parents and Senior Citizen Act, 2007. The respondent No. 5 who is the married daughter of the petitioners has started staying at the petitioners' house with her husband, the respondent No. 5 married of her own choice. The respondent No. 5 who is the married daughter of the petitioners has started staying at the petitioners' house with her husband, the respondent No. 5 married of her own choice. After marriage the respondent No. 5 started residing in her matrimonial house at Ludhiana (Punjab). She came for her first child delivery to Baratang in the year 2004. She returned to her matrimonial house after some months. During the second child delivery in the year 2007 again respondent No. 5 came to the Port Blair and during her stay at Baratang she got information that her husband's leg got fractured. Therefore, her in-laws demanded money for treatment of their son (husband of the respondent No. 5) from the petitioners. Unfortunately the petitioners sent money to respondent No. 5's in-laws house for treatment of her husband. Needless to mention that after recovery the son-in-law of the petitioners also came to Baratang and started residing with the petitioners. Resultantly the petitioners were compelled to look after the respondent No. 5 and her family members including her husband. The petitioners started a small shop in their house incurring day to day expenditure. Since the respondent No. 5 started living with the petitioners therefore the petitioners had handed over the shop to their daughter, (respondent No. 5) to run the same and earn her livelihood as the petitioner No. 1 is receiving monthly pension for Rs. 10,000/- pension. It is also the case of the petitioners that whenever the petitioners' elder son Hasmuddin visited the house of the petitioners during holidays the respondent No. 5 became furious and picked up quarrel with the petitioners thereby forcing them to leave the house. Furthermore, the respondent No. 5 and her husband also picked up quarrel, with the petitioners and used filthy languages. The petitioners being the elderly people cherished some hope that their daughter, respondent No. 5 would amend her behaviour towards the aged petitioners. But unfortunately her behaviour and attitude towards the petitioners deteriorated day by day. Not only that respondent No. 5 started pressuring the petitioners to vacate the house constructed by the petitioner No. 1 in the government land and are in the possession therein since 1956 till date. But unfortunately her behaviour and attitude towards the petitioners deteriorated day by day. Not only that respondent No. 5 started pressuring the petitioners to vacate the house constructed by the petitioner No. 1 in the government land and are in the possession therein since 1956 till date. Against such intolerable behaviour of the respondent No. 5 and her husband petitioners made repeated representation to the Sub-Divisional Magistrate and Assistant Commissioner Rangat Middle Andaman to initiate action against the respondent No. 5 and also one of his son namely Nasmuddin who also joined her in troubling the petitioners and they are trying to grab the petitioners' house dispossessing the petitioners therefrom. Left with no alternative ultimately the petitioner filed petition before the Maintenance Tribunal suit under Maintenance Welfare and Senior Citizens Act, 2007 (Act of 2007 in short). It is also the case of the petitioners that during the hearing before the tribunal the CDPO, Rangat conducted personal field enquiry and made honest effort to reconcile the issues between the parties but her effort went in vain. It is also the case of the petitioners that the respondent No. 5 stated before the tribunal that she will not vacate the house of her parents even though she has purchased a house site at South Creek at Baratang. Thereafter ultimately on 14th January, 2016 the Tribunal by its order directed the respondent No. 5 to vacate the shop and the house of the petitioners within a period of 60 days from the date of the order. Challenging the said order the respondent No. 5 filed an appeal before the appellate authority under Maintenance and Welfare of Parents and Senior Citizens Act, 2007. On 17th June, 2016 the appellate Tribunal set aside the order of the Tribunal thereby holding that the appellate authority has no power to direct the respondent No. 5 to vacate the shop room as well as the house of the petitioners. The order of the Maintenance Tribunal was thus set aside by the appellate authority. Assailing the said order the petitioners filed the present writ petition. Submissions of the Learned Advocates appearing for the respective parties 2. Mr. The order of the Maintenance Tribunal was thus set aside by the appellate authority. Assailing the said order the petitioners filed the present writ petition. Submissions of the Learned Advocates appearing for the respective parties 2. Mr. Arul Prasanth, learned Advocate appearing for the petitioners vehemently urged that under the said Act of 2007 the tribunal has every power to direct the respondent No. 5 to vacate the petitioners' property and to handover the shop room and the house of the petitioners. 3. Mr. Prasanth further strongly contended that the Tribunal failed to appreciate that the petitioner No. 1 is an octogenarian aged about 81 years and the petitioner No. 2 is a septuagenarian aged about 75 years and at their age they needed protection as envisaged in Act of 2007. 4. Mr. Prasanth also contended that the tribunal failed to appreciate that the notice under Section 202 of A & N Islands LR and LRR was issued on 23rd November, 1990. 5. Mr. Prasanth also argued that appellate tribunal failed to consider Section 2 sub-section F of the said Act which clearly provides the meaning of the property. In support of his contention Mr. Prasanth relied on a Hon'ble Delhi High Court decision dated 15th March, 2017 passed in (Sunny Paul & Anr' v. State Net of Delhi & Ors) Paragraphs 41, 42 and 58 whereof are quoted below :- Para-41 -The petitioners have themselves admitted in the writ petition that the respondents 2 and 3 are tenants in the property. The owner of the property (BCTA) has also filed an application on record stating that it had permitted the respondent No. 3 to occupy the property as a tern of his employment. BCTA has also admitted that petitioners are occupying the property in their capacity as sons of respondents No. 2 and 3. Accordingly, the respondents No. 2 and 3's superior right to the property stands established and the petitioners do not have any independent right in the property other than through their parents. Para-42-Sections 2 (f) (g) and 4 of the Act, 2007 also evidence that the statute acknowledges transfer of possession to a third person by the parent or senior citizen to fall within its ambit. Para-42-Sections 2 (f) (g) and 4 of the Act, 2007 also evidence that the statute acknowledges transfer of possession to a third person by the parent or senior citizen to fall within its ambit. Some of the Courts have even placed reliance on the phrase "normal life" in Section 4 (2) and (3) of the Act 2007 to issue eviction order to enable the parents to live in the property peacefully. Para-58-Consequently, even in the absence of a comprehensive action plan for protecting the life and property of senior citizens under Section 22 of the Act, 2007, on the date the impugned order was passed, the Maintenance Tribunal had the jurisdiction to pass an order of eviction." He also relied on another unreported Appellate Court decision of Punjab-Haryana High Court at Chandigarh passed in (Justice Shanti Sarup Dewan v. Union Territory) Sub Paragraphs (ii) (iii) & (iv) of the Paragraph-41 are quoted below : "(ii)-Respondent No. 7 and his family members are directed to vacate the property bearing House No. 642, Section 11-B, Chandigarh to extent it is occupied by them and the keys be handed over to appellant No. 1 within a period of 15 days from today. (iii)-The Senior Superintendent of Police of Union Territory, Chandigarh/respondent No. 3 is directed to ensure enforcement of the direction (ii) mentioned above. (iv)-lf respondent No. 7 wants to establish any legal right or share in the aforesaid house, he is free to file appropriate civil proceedings but without infringing the exclusive rights to the appellants in the interregnum period implying that there would be a violation of the provisions of the said Act. LPA No. 1007 of 2013 (O & M) The impugned order of the learned Single Judge dated 17.05.2013 is consequently set-aside to the aforesaid extent. We part with the feelings of dismay at the attitude of respondent No. 7 despite all efforts by the Committee and the Court but with the hope that at some stage sanity would dawn and he would recognize the contribution made by his father including monetarily towards establishing him in an independent house gifted to him. The appeal is accordingly allowed with costs quantified at 50,000/- in favour of the appellants and against respondent No. 7 to be paid within 75 days." 6. Before parting with his argument Mr. The appeal is accordingly allowed with costs quantified at 50,000/- in favour of the appellants and against respondent No. 7 to be paid within 75 days." 6. Before parting with his argument Mr. Prasanth reiterated set aside the impugned Appellate Authority's order and restore the order of the Tribunal which directed the respondent No. 5 to vacate the shop room as well as the house of the petitioners. 7. Per contra, Mr. B.K. Das learned Advocate appearing for the private respondent No. 5 submitted that the petitioners are not the owner of the land, owner of the land is the A & N Islands LR and LRR 1966, therefore petitioners have no right to direct the respondent No. 5 to vacate the shop room as well as the house. 8. Mr. Das further vehemently contended that the order of the learned Tribunal of Maintenance of Welfare and Parents and Senior Citizens Act, 2007 is totally void and against the Act of 2007 therefore the said judgment and order was rightly quashed and set aside by the appellate forum vide judgment dated 17th June, 2016. 9. Mr. Das further strongly submitted that the respondent No. 5 is conscious about the respect to be given to her parents but the petitioners in connivance with the other sons and daughters treated the respondent No. 5 differently and tried to evict the respondent No. 5 from peaceful possession. 10. Therefore, in conclusion Mr. Das submitted that there is no infirmity and/or illegality and/or ambiguity in the order dated 17th June, 2016 passed by the appellate forum which deserves interference by this Hon'ble Court. 11. Mr. Das further prayed that the writ petition should be dismissed. Decision with Reasons 12. Considering the submissions made by the learned Advocates appearing for the respective parties and after perusing the record and also considering the decisions cited above by Mr. Prasanth I find from records that the petitioner constructed the said building on the government land. It is also evident from records that the on 23rd November, 1990 a notice under Section 202 of A & N Islands LR & LRR 1966 was also issued to the petitioners by the respondent authority pertaining to the aforesaid landed property. Prasanth I find from records that the petitioner constructed the said building on the government land. It is also evident from records that the on 23rd November, 1990 a notice under Section 202 of A & N Islands LR & LRR 1966 was also issued to the petitioners by the respondent authority pertaining to the aforesaid landed property. It is also found that the petitioners allowed the respondent No. 5 to look after their shop as the petitioner No. 1 earn an amount of rupees ten thousand pension per month. Taking advantage of the petitioners' soft corner upon the respondent No. 5 the respondent No. 5 tried to evict the petitioners from their property against which the petitioners approached before the tribunal by filling an application under Maintenance and Welfare Parents and Senior Citizens Act, 2007. That application was allowed by the learned Tribunal. Unfortunately that order was set aside by the appellate authority vide impugned order dated 17th June, 2016 thereby holding inter alia that the tribunal/appellate tribunal has no authority to evict the respondent No. 5 from the house. Accordingly, the tribunal's order was set aside by the appellate authority. 13. At this juncture it is profitable to consider sub-section F of Section 2 of the said Act of 2007 which defines "Property" as under;" 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." The definition of "Property" in the Act of 2007 quoted above squarely supports the claims and contentions of the petitioners, particularly right of the petitioner No. 1 in the property. The contention of the respondent No. 1 is in the property. The contention of the respondent No. 1 in this respect is clearly misplaced. Therefore, in my opinion since the petitioners have been enjoying the property since long from 1959, are quite elderly people, they are entitled to protection as provided under Act of 2007. It is not out of place to mention that respondent No. 5 is not a divorcee or deserted woman. Respondent No. 5 is enjoying and occupying the petitioners property i.e. dwelling house including the shop room with her family members thereby putting the petitioners in a miserable condition as ventilated by the petitioners herein. 14. It is not out of place to mention that respondent No. 5 is not a divorcee or deserted woman. Respondent No. 5 is enjoying and occupying the petitioners property i.e. dwelling house including the shop room with her family members thereby putting the petitioners in a miserable condition as ventilated by the petitioners herein. 14. Accordingly, I find and hold that the impugned order passed by the appellate authority cannot be sustained in the eye of law and in facts and circumstances of the case. 15. Resultantly the impugned order dated 17th June, 2016 is set aside and quashed thereby affirming the order passed by the learned Tribunal on 14th January, 2016. 16. I direct the private respondent No. 5 to vacate the shop and house of her father within sixty (60) days from the date of communication of this order as directed by the learned Tribunal. Needless to mention that SHO Baratang is also directed to ensure protection of life and property of the petitioner No. 1 and his wife and compliance of the tribunals order. 17. With these directions, the writ petition is disposed of without any order as to costs. Urgent photostat certified copy of this judgment if applied for, be supplied to the parties after fulfilling all the formalities.