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2019 DIGILAW 207 (AP)

SK. Chamanbi v. State of Andhra Pradesh

2019-08-28

M.SEETHARAMA MURTI

body2019
ORDER : M. Seetharama Murti, J. 1. The petitioner in WP No. 3662 of 2019 is the mother of the petitioner in WP No. 7465 of 2019. 2. The subject-matter in WP No. 3662 of 2019 is the order, dated 17.9.2018, in OP No. 14 of 2018, of the learned Presiding Officer of the Maintenance Tribunal under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. 3. The subject-matter in WP No. 7465 of 2019 is the notice, dated 12.6.2019, issued by the Tahasildar, Narsaraopet, pursuant to the afore-stated order. 4. Hence, both the writ petitions are being disposed of by this common order. 5. The parties in these writ petitions shall hereinafter be referred to as arraigned in the first writ petition viz., WP No. 3662 of 2019 filed by the mother. 6. I have heard the submissions of learned Counsel appearing for the writ petitioner-mother in WP No. 3662 of 2019, who is also the 6th respondent in WP No. 7465 of 2019 filed by her son; and, of learned Counsel appearing for the said son in both the writ petitions. I have perused the material records. 7. The case of the petitioner-mother is this : 'The petitioner, a lady aged about 86 years, who is suffering from old age ailments and severe health problems, is a resident of a House bearing No. 15-6-25, Panasathota, Narasaraopet, Guntur District. The petitioner in the other writ petition, that is, the 6th respondent is her fourth son. She underwent five surgeries, for gallbladder stones, for hernia (twice), for eyes and for stones in pancreas. She is not keeping good health. In the year 2015, she was admitted in Kamineni Hospital, Hyderabad, for undergoing surgery for hernia. At that time, the 6th respondent, who is her fourth son and his wife, occupied her above said residential house without her knowledge and grabbed it after breaking open the lock put by her on the said house. The said house property, which belongs to her, is in her name. She purchased the same under a registered document bearing No. 4856 of 1975, dated 26.7.1975. The 6th respondent, her fourth son, having entered into her house with his family, by breaking open the lock, did not allow her to re-enter into her house on her return from the hospital. She purchased the same under a registered document bearing No. 4856 of 1975, dated 26.7.1975. The 6th respondent, her fourth son, having entered into her house with his family, by breaking open the lock, did not allow her to re-enter into her house on her return from the hospital. Having no other option, she went away to her daughter's house and filed the aforestated OP before the Maintenance Tribunal, Narasaraopet. By an order, dated 17.9.2018, her said OP was allowed and the respondents therein, who are her children, including the 6th respondent herein, were directed to vacate and deliver possession of the said house immediately to her to enable her to live in her house and lead normal life. Despite the said order, the 6th respondent did not vacate the said house and handover possession of the house to her. On her representations for implementation of the afore-stated order in her favour, no action has been taken by the respondents 3, 4 and 5, that is, the RDO, who passed the order in the OP, the Tahasildar, Narasaraopet and the SHO, II Town Police Station, Narasaraopet. Being aggrieved of the non-implementation of the order passed by the Maintenance Tribunal, she filed WP No. 3662 of 2019.' 8. It is pertinent to note that in her said writ petition, on 20.3.2019, an interim order was granted in IA No. 1 of 2019 directing the respondents to take immediate action as per the orders, dated 17.9.2018, in OP No. 14 of 2018 passed by the 3rd respondent and handover possession of the house to the petitioner. Be that as it may. 9. Thereafter, the Tahasildar, Narasaraopet, issued notice, dated 12.6.2019, to the 6th respondent, the fourth son of the petitioner, directing him to vacate the house within 48 hours and handover possession of the same to his mother, the petitioner, as per the aforestated interim orders of this Court passed pursuant to the orders of the Maintenance Tribunal and further informing the 6th respondent that if he fails to vacate and handover possession of the house within the specified time, he will be evicted from the house with the help of police and revenue authorities and also requiring him to adhere to the interim orders of this Court and of the Maintenance Tribunal. 10. Aggrieved thereof, the 6th respondent filed the other writ petition, WP No. 7465 of 2019. 10. Aggrieved thereof, the 6th respondent filed the other writ petition, WP No. 7465 of 2019. His case is as follows: The 6th respondent is living by doing labour work. His father purchased the house in question. As such he is residing in the said house since his childhood and till date, with his family. The house was constructed by his father in the year 1975. He is having five brothers and two sisters. They are all doing respectable jobs and are well settled. Aggrieved of the order of the Maintenance Tribunal, dated 17.9.2018, this 6th respondent, as advised, preferred an appeal before the appellate authority-Joint Collector, Guntur, Guntur District. An application requesting to grant stay is also filed alongwith the said appeal. The appeal and the application filed for granting stay order are pending. When this respondent fell sick, the other brothers and sisters of this respondent got filed WP No. 3662 of 2019 by the mother, without making this respondent as a party respondent in the said writ petition and obtained order, dated 20.3.2019, behind the back of this respondent for implementation of the orders in OP No. 14 of 2018 of the Maintenance Tribunal. Under the guise of those interim orders, the Tahasildar, issued the notice, which is impugned in this respondent's writ petition in WP No. 7465 of 2019. This respondent got himself impleaded as 6th respondent in his mother's writ petition (WP No. 3662 of 2019). The notice of the Tahasildar asking him to vacate the house in question within 48 hours of receipt of the said notice of the Tahasildar is illegal; and, the action of the Tahasildar in issuing the said notice is arbitrary and violative of the provisions of the Act of 2007, principles of natural justice and provisions of the Constitution of India. Hence, in this respondent's writ petition a request is made to suspend the notice of the Tahasildar. 11. Hence, in this respondent's writ petition a request is made to suspend the notice of the Tahasildar. 11. At the hearing, learned Counsel for the petitioner-mother while reiterating the case of the petitioner, stated that admittedly the mother is the owner of the property and that after her forceful dispossession, she approached the Maintenance Tribunal and that the Maintenance Tribunal passed an order in her favour and that for non implementation of the said order, the present writ petition is filed and that this Court having considered her plight granted an interim order and that pursuant to the said interim order, the Tahasildar correctly issued the notice calling upon the 6th respondent, her son, to vacate the house property and handover possession of the same to her and that during the pendency of these writ petitions, possession of the property was delivered to her under a panchanama, dated 15.6.2019, and thus the order of the Maintenance Tribunal is implemented. 12. Learned Counsel for the 6th respondent-son would submit as follows: "The appeal filed before the Joint Collector against the order of the Maintenance Tribunal is pending. The writ petition filed by the mother for implementation of the order of the Maintenance Tribunal is not maintainable. The said writ petition is filed in clear violation of the provisions of the Act of 2007. The provision of Section 11(2) of the said Act postulates that the order of the Tribunal has to be executed in the manner prescribed for execution of an order passed under Chapter-DC of CrPC. Hence, a writ petition is not the remedy for implementation of the order of the Maintenance Tribunal. Further, before passing the order, the RDO, who is the Presiding Officer of the Maintenance Tribunal, did not follow the procedure contemplated under the Act. The proceedings were not held by him in the presence of the children; no evidence is taken in the presence of children and the relatives; the said order has come to be passed without even a notice to this respondent. All other brothers and sisters of this respondent have no grievance as they are gainfully employed and are leading respectful lives at Hyderabad and other places; whereas this respondent is a resident of Narasaraopet and is living by doing coolie work. Hence, he is entitled to continue to stay in the subject house alongwith his family. 13. All other brothers and sisters of this respondent have no grievance as they are gainfully employed and are leading respectful lives at Hyderabad and other places; whereas this respondent is a resident of Narasaraopet and is living by doing coolie work. Hence, he is entitled to continue to stay in the subject house alongwith his family. 13. However, learned Counsel for the 6th respondent fairly stated that the petitioner-mother is now in possession of the house; but, further submitted that the wife of the 6th respondent is also residing in a part of the house. He finally stated that in WP No. 7465 of 2019, this Court on 18.6.2019 granted an interim suspension order suspending the impugned notice issued by the Tahasildar and that the appellate authority is yet to dispose of the 6th respondent's appeal. 14. I have given earnest consideration to the facts and submissions... 15. The order of the Maintenance Tribunal is implemented and possession of the house was delivered to the petitioner mother under a panchanama [mediators report], dated 15.6.2019. The petitioner-mother is in possession of the subject house property is the submission of learned Counsel for the petitioner-mother. Per contra, learned Counsel for the 6th respondent-son submits that the mother is now in possession of the house property; but the 6th respondent's wife is also living in a portion thereof. In that view of the matter and as an appeal preferred by the 6th respondent (son) is pending before the Joint Collector, it is not necessary to go into merits of the matter and record any findings, which will have a bearing on the merits of the matter, as an appeal against the order of the Maintenance Tribunal is pending before the Joint. Collector for adjudication. Hence, I find that the writ petitions can be disposed of with appropriate direction. 16. In the result, both the writ petitions are disposed of directing both the parties to maintain status quo as on today as regards possession over the subject house property, until the appeal filed by the 6th respondent [in WP No. 3662 of 2019] before the appellate Tribunal-Joint Collector/3rd respondent in WP No. 7465 of 2019 is disposed of, on its merit. However, the appellate Tribunal is directed to dispose of the said pending appeal as expeditiously as possible and preferably within three months from the date of receipt of a copy of this order, however, in strict accordance with the procedure established by law, and after affording an opportunity of personal hearing to both the sides. 17. There shall be no order as to costs. 18. Miscellaneous petitions pending, if any, shall stand closed.