Research › Search › Judgment

Kerala High Court · body

2018 DIGILAW 955 (KER)

Chandran v. State of Kerala

2018-11-26

N.ANIL KUMAR, P.R.RAMACHANDRA MENON

body2018
JUDGMENT : Whether the Superintendent of Police is having any adjudicatory power so as to give effect to the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act or to decide title, possession or such other aspects in relation to a property, is the question mooted in this writ petition. The prayers are mainly to direct the respondents 1 to 3 to afford adequate and effective police protection to the life and property of the petitioner by evicting the respondents 4 to 7 (who are the wife, two grown-up sons and a daughter-in-law of the petitioner) from the house belonging to the petitioner “even by exerting force, if necessary.” 2. Heard Smt. T.B. Remani, learned counsel for the petitioner, Sri. Jeswin P. Varghese, learned counsel who entered appearance on behalf of the party respondents as well as Sri. P.P. Thajudeen, learned Senior Government Pleader appearing on behalf of the respondent/police. 3. The sequence of events narrated in the writ petition shows that, the petitioner, who is a sexagenarian married the fourth respondent on 25.1.1982 as per the Hindu Customary rites and rituals. It is stated that the marital bond got ruptured and the fourth respondent wife, the sons and also the daughter-in-law are not in good terms with the petitioner. It is also conceded that the petitioner had filed an original petition before the Family Court concerned, to get a decree of divorce, which came to be dismissed. The appeal preferred there from also was dismissed; pursuant to which, an R.P. has been filed which is stated as pending. 4. The petitioner contends that he is suffering from various ailments as evidenced from Ext.P1 series. It is also stated that he has discharged his duty as a dutiful father in giving education to the sons and they are technically qualified and well employed. According to the petitioner, the fourth respondent is living in adultery and that she was taking every step to kick out the petitioner from the building situated in the property belonging to the petitioner, which was constructed utilizing his own funds. Because of the strained relationship, the fourth respondent approached the Family Court, Thrissur by filing O.P.No.821/2008 to return 15 sovereigns of gold and cash which were allegedly given at the time of marriage. Because of the strained relationship, the fourth respondent approached the Family Court, Thrissur by filing O.P.No.821/2008 to return 15 sovereigns of gold and cash which were allegedly given at the time of marriage. Another case was filed as O.P.No.1123/2009 seeking for a prohibitory injunction by the fourth respondent, joining hands with the respondents 5 and 6 for restraining the petitioner from forcibly evicting them from the petition schedule building. The Family Court accepted the version of the fourth respondent with regard to gold ornaments and the same was ordered to be returned by passing a verdict in her favour in O.P.No.821/2008. A permanent prohibitory injunction was granted in the other O.P. i.e., O.P.No.1123/2009. 5. Both the above verdicts were sought to be challenged by the petitioner by filing Mat. Appeal Nos.1080/2014 and 191/2018 respectively. The merit of the case was considered by a Division Bench of this Court and after detailed hearing, Ext.P16 judgment was passed on 12.10.2018. It was found that there was absolutely no basis for the claim put forth in O.P.No.821/2008 with regard to the return of gold ornaments and that the case projected was not substantiated by legally acceptable evidence. It was accordingly, that the verdict passed by the Family Court in O.P.No.821/2008 was set aside; virtually allowing Mat. Appeal No.1080/2014. Coming to O.P.No.1123/2009, the case of the fourth respondent herein was specifically taken note of in paragraph 4 of Ext.P16 common verdict rendered by this Court. Permanent prohibitory injunction was sought for, with reference to the attempt from the part of the petitioner to forcibly evict the respondents concerned from the petition schedule property. It is also stated that, the house in the petition schedule property was constructed by using the money raised by selling gold ornaments of the wife, besides the money obtained by her in a 'kuri'. After analysing the pleadings and materials on record, the Bench observed in paragraph 16 of Ext.P16, that the fourth respondent/wife had given evidence as PW.1 as to the attempt on the part of the petitioner to forcibly evict her from the house. It was also mentioned that, when examined as RW.1, the petitioner had admitted that his wife was residing in the house in the petition schedule property; besides observing that the petitioner/husband had not filed any counter affidavit/statement denying the allegations made against him in O.P.No.1123/2009. It was also mentioned that, when examined as RW.1, the petitioner had admitted that his wife was residing in the house in the petition schedule property; besides observing that the petitioner/husband had not filed any counter affidavit/statement denying the allegations made against him in O.P.No.1123/2009. In such circumstances, it was declared that the wife was entitled to get a decree of prohibitory injunction restraining the husband from forcibly evicting her from the house in the petition schedule property. Thus, the right of the fourth respondent to stay in the building, till she is evicted in accordance with the relevant provisions of law stands concluded. 6. However, coming to the urged rights of the respondents 5 and 6, the Bench observed in the next paragraph, that the said persons are the sons of the petitioner herein who are having absolutely no right over the house and that they cannot reside therein against the wish and will of the appellant/petitioner, the father. In the absence of any legal right to reside in the house in the petition schedule property, the Bench held that they are not entitled to get a decree of injunction against their father. It was accordingly, that the verdict passed by the Family Court in O.P.No.1123/2009 was modified, whereby the judgment and decree passed by the Family Court granting a decree of injunction in favour of the two sons was vacated and the same was confined in favour of the wife of the petitioner herein, clearly restraining the petitioner/appellant from forcibly evicting her from the house in the petition schedule property. The learned counsel for the petitioner submits that, by virtue of Ext.P16, the petitioner is having every right to occupy and reside in the building, to the exclusion of the respondents 4 to 7 and that, despite bringing the said aspect by producing relevant materials before the second respondent, it is not given effect to and hence the petition for police protection. 7. During the course of hearing, the learned counsel for the petitioner points out that 'The Maintenance and Welfare of Parents and Senior Citizens Act, 2007' is a special statute framed by the Central Government to ensure the maintenance and welfare of senior citizens like the petitioner herein. 7. During the course of hearing, the learned counsel for the petitioner points out that 'The Maintenance and Welfare of Parents and Senior Citizens Act, 2007' is a special statute framed by the Central Government to ensure the maintenance and welfare of senior citizens like the petitioner herein. Specific reference is made to the power and procedure to be followed with regard to the rights to be established before the Maintenance Tribunal constituted in terms of Section 7 of the Maintenance and Welfare of Parents and Senior Citizens Act. Reference is also made to Section 15(2), Section 22(2) and Section 32(2)(f) as to rule making power of the State Government. The learned counsel submits that the provisions of the Act are having 'overriding effect', by virtue of the mandate under Section 3 of the Act. It was in exercise of the power conferred upon the Government, that 'The Kerala Maintenance and Welfare of Parents and Senior Citizens Rules, 2009' were framed and as per Rule 20, the District Superintendent of Police (who has been identified by the State Government) is conferred with power to give effect to the provisions of the Act and the Rules. It was accordingly, that the petitioner has approached the second respondent by filing Ext.P17 representation so as to enable the petitioner to enjoy the fruits of the Act/Rules and also the verdict/benefits flowing from Ext.P16, seeking to evict the respondents 4 to 7, which is still to be acted upon. 8. The learned Senior Government Pleader submits that the idea and understanding of the petitioner with regard to the scope of the enactment, in relation to the relief sought for, is quite wrong and misconceived. No adjudicatory power is conferred upon the police in any manner and that by virtue of the Rules framed by the State, so as to give effect to the provisions of the Act, the State Police Chief has already issued a Circular bearing No.16/2010 dated 11.3.2010 giving appropriate instructions in this regard. It will be worthwhile to make a reference to the contents of the said Circular (made available for perusal) as extracted below:- “No.U1/16426/2010 Police Headquarters Kerala, Thiruvananthapuram, Dated 11.03.2010. Circular No.16/2010 Sub:- Welfare of Parents and Senior Citizens- Responsibility of Police-Instruction issued- Reg. The Government of India have promulgated the Maintenance and Welfare of Parents and Senior Citizens Act 2007 (Central Act 56 of 2006). Circular No.16/2010 Sub:- Welfare of Parents and Senior Citizens- Responsibility of Police-Instruction issued- Reg. The Government of India have promulgated the Maintenance and Welfare of Parents and Senior Citizens Act 2007 (Central Act 56 of 2006). The Government of Kerala have notified Kerala Maintenance and Welfare of Parents and Senior Citizens Rules 2009 so as to implement the provisions of the Act in the State. Rule 20 of the said Rules stipulate the duties of Police with regard to the protection of life and property of Senior Citizens. In the above circumstances the following instructions are issued for the strict enforcement of the Act and Rules thereunder:- (a) The Commissioners of Police/Superintendents of Police shall take all necessary steps, for the protection of life and property of Senior Citizens. (b) Each Police Station shall maintain an up-to-date list of Senior Citizens living within its jurisdiction, especially those who are living by themselves (i.e. without there being any member in their household who is not a Senior Citizen). The aforesaid register will be called the 'Register of Senior Citizens'. It should contain details like the name of the Senior Citizen, his address, sex, his date of birth/age, telephone numbers, contact number of his immediate neighbours/relative. (c) A representative of the Police Station, as far as possible, together with a social worker or volunteer shall visit such senior citizens at least once in a month, and shall visit them as quickly as possible on receipt of a request for assistance from them. (d) Complaints/problems of senior citizens shall be promptly attended to by the police. (e) One or more Volunteers' Committees shall be formed for each Police Station which shall ensure regular contact between the Senior Citizens, especially those living by themselves, on the one hand and the Police and the District Administration on the other. (f) The Commissioner of Police or the Superintendent of Police of Districts, as the case may be, shall publish widely in the media and through the Police Station at regular intervals the steps being taken for the protection of life and property of senior citizens. (g) Each Police Station shall maintain a separate register containing ail important particulars relating to the offences committed against senior citizens, in such form as the State Government may, by order, specify. The register will be called the 'Register of Offences against Senior Citizens'. (g) Each Police Station shall maintain a separate register containing ail important particulars relating to the offences committed against senior citizens, in such form as the State Government may, by order, specify. The register will be called the 'Register of Offences against Senior Citizens'. It will contain details like Serial No., Name of the complainant, Crime Number, Section of Offences, Date of the Incident, Date of Registration of Case, Name of the accused, Accused Arrested or Not and Disposal of the case. (h) The register referred to in clause (g) shall be kept available for public inspection and every officer inspecting a Police Station shall invariably review the status as reflected in the register. (i) The Police Station shall send a monthly report of such crimes to the District Superintendent of Police/Commissioner of Police by the 10th of every month. (j) List of Do's and Dont's to be followed by senior citizens in the interest of their safety will be widely publicized. (k) Antecedents of domestic servants and others working for senior citizens shall be promptly verified, on the request of such citizens. (l) Community policing for the security of senior citizens will be undertaken in conjunction with citizens living in the neighbourhood, Residents' Welfare Associations, Youth Volunteers, Non-Government Organisations etc. (m) The Commissioner of Police and Superintendent of Police shall submit a Monthly report to PHQ and to the District Magistrate by the 20th of every month about the details of crimes against senior citizens during the previous month, including progress of investigation and prosecution of registered offences and preventive steps taken during the month, so as to enable PHQ to furnish a quarterly report to Government.” 9. It is brought to the notice of this Court that, on taking note of some lapses on the part of some officers, a further communication was issued by the State Police Chief, through all the District Police Chiefs and SHOs, vide proceedings bearing No.U1-147857/2017/PHQ dated 30.10.2017 for strict implementation of the instructions already given. It is stated that the police has never acted contrary to such stipulations and every effort is being taken to see that the provisions of the Act as well as the Rules are given effect to. 10. It is stated that the police has never acted contrary to such stipulations and every effort is being taken to see that the provisions of the Act as well as the Rules are given effect to. 10. The learned counsel for the petitioner points out that there is an obligation on the part of the Authorities concerned to ensure the maintenance and welfare of senior citizen, which is a primary requirement as per the Maintenance and Welfare of Parents and Senior Citizens Act. It is also pointed out that the proper forum to be approached for getting the relief as sought for in the writ petition, is before the second respondent, more so in view of Rule 20 of the Rules and that there is a statutory duty to be discharged by the District Police Chief in this regard. 11. Despite the hearing at length and in spite of the extensive search made through the provisions of the Act and the Rules, no specific provision is brought to the notice of this Court, which confers a power of adjudication upon the Superintendent of Police. This is more so, since the rights over the building are disputed. When the petitioner contends that it is a self-acquired property, the version of the fourth respondent/his wife (as taken note of by the Division Bench of this Court in paragraph 4 of Ext.P16) is that the said building was constructed using the money raised by selling the gold ornaments of the wife and also the money obtained by her in a ‘kuri’. Whose version is correct, is a matter which is to be adjudicated, based on the pleadings and evidence to be adduced before the appropriate Forum/Court/Tribunal. This exercise cannot be done by this Court in a proceeding under Article 226 of the Constitution of India, nor can be done by a Police officer based on Ext.P17 representation preferred by the petitioner. 12. In this context, it is relevant to note that the Act is primarily for the maintenance and welfare of the parents and senior citizens. ‘Maintenance’ is defined under Section 2(b) and ‘Senior Citizen’ is defined under Section 2(h), as given below:- “2(b) “maintenance” includes provision for food, clothing, residence and medical attendance and treatment. 12. In this context, it is relevant to note that the Act is primarily for the maintenance and welfare of the parents and senior citizens. ‘Maintenance’ is defined under Section 2(b) and ‘Senior Citizen’ is defined under Section 2(h), as given below:- “2(b) “maintenance” includes provision for food, clothing, residence and medical attendance and treatment. 2(h) "senior citizen" means any person being a citizen of India, who has attained the age of sixty years or above.” Section 4 of the Act deals with the maintenance of parents and senior citizens. A senior citizen as per Section 4(1) including a 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.” Section 2(g) reads as follows:- “(g)"relative" means any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit his property after his death.” It is only to give effect to the said provision, that an application for maintenance could be filed before the Tribunal under Section 5, in the manner as specified therein. In other words, this is not an enactment so as to declare or decide the disputed title of the wife and to have her ousted from the building. It has been declared by this Court as per the judgment reported in 2016 (4) KLJ 697 ) Mavila Sathi v. State of Kerala & others that the Act is enacted to ensure the proper protection and maintenance of the senior citizen, which cannot be allowed to be used as a tool to settle the property dispute among the siblings. 13. A reference to Section 27 also will be appropriate in the given context. The said provision reads as follows:- “27. Jurisdiction of Civil Courts barred. 13. A reference to Section 27 also will be appropriate in the given context. The said provision reads as follows:- “27. Jurisdiction of Civil Courts barred. - No Civil Court shall have jurisdiction in respect of any matter to which any provision of this Act applies and no injunction shall be granted by any Civil Court in respect of anything which is done or intended to be done by or under this Act.” It is clearly discernible from the said provision that the bar of jurisdiction of the civil court is only in respect of anything which is done or intended to be done by or under the Act. This virtually is asserted by the learned counsel for the petitioner as well, adding that it was under such circumstance, that the petitioner has approached the police by filing Ext.P17. In so far as the police does not have any power to carry out any adjudicatory exercise to arrive at a finding in respect of the title, possession or such other rights, it is for the petitioner to have the same mooted and got decided in accordance with the relevant provisions of law before the appropriate Court/Forum. This has been made in crystal-clear terms by the Division Bench of this Court as well, in Ext.P16 while holding that the fourth respondent can only contend that she cannot be forcibly evicted and that such eviction could only be in accordance with the relevant provisions of law. In the said circumstance, leaving it open to the petitioner to move the appropriate Forum/Court to cause eviction of the fourth respondent, if he has got a sustainable case in accordance with law, interference is declined with regard to the relief prayed for, to cause the second respondent/police to evict the fourth respondent from the building in question, even by using force. 14. The learned counsel for the petitioner however submits that, in so far as the respondents 5 to 7 are concerned, they do not have any right at all to stay in the building contrary to the will and wish of the petitioner, as declared by the Division Bench of this Court in Ext.P16. We find considerable force in the said submission. We find considerable force in the said submission. As it stands so, if there is any threat to the life and limbs of the petitioner or there is any attempt from the part of the respondents 5 to 7 or anybody under them in causing a law and order situation, taking the law into their hands and once the same is reported to the police, it shall be taken care of taking appropriate measures, immediately abating the threat to the rule of law. 15. The learned counsel for the petitioner also submits that, the petitioner, who is virtually having no means as on date, is suffering from various ailments and is finding it extremely difficult to have a place to reside, despite the fact that the disputed property as well as the building in question stand in his name. Considering the materials on record, it is quite open for the petitioner, if he so chooses, to reside in the building situated in the property where the fourth respondent/ his wife resides; but without causing any obstruction or peaceful living of the fourth respondent/wife. The learned counsel for the private respondents submits that, at no point of time was there any forceful obstruction from their side, with regard to the peaceful residence of the petitioner in the said building and the said respondents do not have any objection in this regard. The said submission is recorded. However taking note of the submission made by the learned counsel for the petitioner that residing in the said building may lead to law and order situation and his life may be in danger, it is made clear that, if there is any threat to the life and limbs of the petitioner in any manner from any of the private respondents or if there is any threat to the peaceful living of the fourth respondent/wife from the part of the petitioner (till she is legally evicted under due process) it shall be looked into by the police as and when the same is brought to their notice, taking appropriate remedial measures immediately abating the threat to the rule of law. The writ petition stands disposed of accordingly.