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2019 DIGILAW 574 (CAL)

Anirban Chakraborty v. State Of West Bengal

2019-05-03

SHAMPA SARKAR

body2019
JUDGMENT : Shampa Sarkar, J. The subject matter of challenge in this writ petition is an order dated May 28, 2018 passed by the District Magistrate, Nadia as the Appellate Tribunal constituted under Section 15 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as the said Act) in Appeal No.3 of 2018, affirming the order dated February 8, 2018 passed by the Sub-Divisional Officer, Ranaghat, Nadia in case No.52 of 2017. 2. The facts as pleaded in the writ petition were that the petitioner was a student of B-Tech under the West Bengal University of Animal and Fishery Sciences and the respondent No.5 as the grandfather of the petitioner had executed a deed of gift in his favour on May 25, 2017 by which a three storied building and land was voluntarily and unconditionally gifted to the petitioner. The name of the petitioner was recorded in the record of rights upon mutation. Thereafter, all of a sudden the respondent No.5 filed a title suit bearing Title Suit No.151 of 2017 in the Court of the learned Civil Judge (Junior Division), 1st Court at Nadia. In the said suit, the respondent No.5 prayed for a declaration of his right, title and interest with respect to the said property which was the subject matter of the gift as also for a declaration that the deed of gift dated May 25, 2017 was void and inoperative having been obtained by fraud and coercion. On February 1, 2018, the learned Civil Judge (Junior Division), 1st Court at Nadia, allowed the application for temporary injunction filed by the respondent No.5 by making the ad interim order of injunction dated October 26, 2017, absolute till the disposal of the suit. By the said order the petitioner and his father who were defendants in the said suit were restrained from interfering with the peaceful possession and enjoyment of the respondent Nos.5 and 7 in the property in question. By the said order the petitioner and his father who were defendants in the said suit were restrained from interfering with the peaceful possession and enjoyment of the respondent Nos.5 and 7 in the property in question. Thereafter, from the copy of a writ petition bearing W.P. No.9855 (W) of 2018, the petitioner came to know that a proceeding had been started under Section 4 of the said Act before the Chairman, Maintenance Tribunal and Sub-Divisional Officer, Ranaghat, by the respondent No.5 being Case No.52 of 2017/M&W, with respect to the self-same property with a prayer for declaration that the deed of gift was void, although, the same was already the subject matter in a title suit. On February 8, 2018, that is, after the order of temporary injunction was passed by the learned civil court, the Sub-Divisional Officer, Ranaghat passed an order in Case No.52 of 2017/M&W declaring that the deed of gift executed by the respondent No.5 in favour of his grandson, that is, the petitioner on May 25, 2017 was void at the option of the transferor. The petitioner was not impleaded as an opposite party in the proceedings before the Maintenance Tribunal. The petitioner, who was the actual title holder of the property in question pursuant to the deed of gift, was also not served with any notice but, his father Arindam Chakraborty, that is, the respondent No.6 was the only opposite party before the Tribunal. 3. Aggrieved by the aforementioned order, the respondent No.6 preferred an appeal under Section 16 of the said Act, before the District Magistrate, Nadia, being the Appellate Tribunal. The appeal was registered as Appeal No.3 of 2018. By an order dated May 25, 2018, the Appellate Tribunal dismissed the appeal by upholding the order of cancellation of the deed of gift executed by the respondent No.5 in favour of the petitioner. The said orders passed by the Appellate Tribunal as also the Chairman Maintenance Tribunal have been impugned in this writ petition. 4. It is submitted by the learned advocate appearing on behalf of the petitioner that the orders passed by the Chairman of the Maintenance Tribunal as also the Appellate Tribunal were perverse and wholly without jurisdiction. The first contention was that the petitioner was not a party before the said Tribunal and no notice of the proceeding was served upon the petitioner. The first contention was that the petitioner was not a party before the said Tribunal and no notice of the proceeding was served upon the petitioner. According to the petitioner, although it was recorded in the order passed by the Chairman, Maintenance Tribunal that the petitioner had adduced oral evidence and had been heard, the petitioner was not called upon to file any written statement or adduce any evidence before the Tribunal. It was further contended that the Chairman, Maintenance Tribunal was also not empowered under Section 23 of the said Act to pass the order dated February 8, 2018 and as such the subsequent affirmation of the order by the Appellate Tribunal by order dated May 28, 2018 was also without jurisdiction and bad in law. 5. Pointing to the averments in the plaint of Title Suit No.151 of 2017, the petitioner contented that the specific case of the respondent No.5 in the suit was that the deed of gift was not executed by the respondent No.5 voluntarily, but the said deed was obtained by practicing fraud. It was further averred in the plaint that the respondent No.5 was not in a sound mental and physical condition to execute a deed of gift and taking advantage of his mental and physical condition, the respondent No.6 fraudulently obtained signatures of the respondent No.5 on some blank papers and manufactured the deed of gift. It was further submitted by the petitioner that once the civil court was in seisin of the matter and a specific prayer had been made in the suit for declaration of the deed of gift to be void along with a prayer for cancellation thereof, the proceeding before the Maintenance Tribunal under Section 23 of the said Act was not maintainable. 6. The learned advocate appearing for the petitioner further submitted that the Chairman, Maintenance Tribunal, passed the order dated February 8, 2018 after the order of temporary injunction dated February 1, 2018 was passed by the appropriate Civil Court. 7. The respondent No.6 filed an affidavit in support of the case of the petitioner. 6. The learned advocate appearing for the petitioner further submitted that the Chairman, Maintenance Tribunal, passed the order dated February 8, 2018 after the order of temporary injunction dated February 1, 2018 was passed by the appropriate Civil Court. 7. The respondent No.6 filed an affidavit in support of the case of the petitioner. The respondent No.3, that is, the Sub-Divisional Officer, Ranaghat, that is, the Chairman, Maintenance Tribunal also filed an affidavit, inter alia, stating that the summons issued to the respondent No.6, by the Chairman of the Maintenance Tribunal with regard to the pendency of the proceedings before it was received by Anirban Chakraborty, that is, the petitioner and as such Anirban Chakraborty had knowledge of the proceeding before the Maintenance Tribunal and no further notice was required to be served upon him. It was further contended that the father and the son in collusion with each other had practised fraud on the respondent No.5 and as such, even if the petitioner was not a party to the proceedings before the Maintenance Tribunal, the petitioner was all along aware of the same. Lastly, it was submitted that the Chairman, Maintenance Tribunal was empowered under Section 23 of the said Act to pass the order, declaring the deed of gift to be void, even if a civil suit was pending on the self-same cause of action. 8. It was submitted by the learned advocate appearing on behalf of the respondent Nos.5 and 7 that the writ petition was not maintainable as the dispute was civil in nature and the order of the Tribunal could not be assailed in a writ petition. He then contended, that the deed of gift was registered under fraud and coercion when the petitioner was not in his senses and thus, there was no legal bar in approaching the Tribunal despite the pendency of the suit in view of the overriding effect of the said Act as provided under Section 3 thereof. Referring to Sections 5 and 6 of the said Act he submitted, that as the respondent No.5 was a senior citizen, he had the right to approach the Maintenance Tribunal and as long as the petitioner was aware of the fact that a proceeding was pending, irrespective of the fact that he was not a party to the proceeding, the requirement under Section 6 (3) was satisfied. He submitted that there was no violation of the principles of natural justice and the provision of the Code of Civil Procedure was not strictly applicable in such a proceeding. The orders impugned to this writ petition according to him did not suffer from any infirmity. 9. I have heard the learned advocates appearing on behalf of the respective parties at length. With regard to the point of maintainability of the writ petition, I am of the view that the power of judicial review of the High Court is a basic feature of the constitution and cannot be taken away by creation of statutory Tribunals. Reference is made to the decision of the Hon'ble Supreme Court in State of Karnataka vs. Vishwabarathi House Building Coop. Society & Ors., (2003) 2 SCC 412 . The relevant portions of the above decision is quoted below:- 39. The District Forum, the State Commission and the National Commission are not manned by lay persons. The President would be a person having judicial background and other members are required to have the expertise in the subjects such as economics, law, commerce, accountancy, industry, public affairs, administration etc. It may be true that by reason of sub-section (2-A) of Section 14 of the Act, in a case of difference of opinion between two members, the matter has to be referred to a third member and, in rare cases, the majority opinion of the members may prevail over the President. But, such eventuality alone is insufficient for striking down the Act as unconstitutional, particularly, when provisions have been made therein for appeal there against to a higher forum. 40. By reason of the provisions of the said Act, the power of judicial review of the High Court, which is a basic feature of the Constitution, has not been nor could be taken away. 41. We may in this connection also notice that in Laxmi Engineering Works v. P.S.G. Industrial Institute, (1995) 3 SCC 583 this Court held: "A review of the provisions of the Act discloses that the quasi-judicial bodies/authorities/ agencies created by the Act known as District Forums, State Commissions and the National Commission are not Courts though invested with some of the powers of a Civil Court. They are quasi-judicial Tribunals brought into existence to render inexpensive and speedy remedies to consumers. They are quasi-judicial Tribunals brought into existence to render inexpensive and speedy remedies to consumers. It is equally clear that these Forums/Commissions were not supposed to supplant but supplement the existing judicial system. The idea was to provide an additional Forum providing inexpensive and speedy resolution of disputes arising between consumers and suppliers of goods and services. The Forum so created is uninhibited by the requirement of Court fee or the formal procedures of a Court. Any consumer can go and file a complaint. Complaint need not necessarily be filed by the complainant himself; any recognized consumers' association can espouse his cause. Where a large number of consumers have a similar complaint, one or more can file a complaint on behalf of all. Even the Central Government and State Governments can act on his/their behalf. The idea was to help the consumers get justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies. Indeed, the entire Act revolves round the consumer and is designed to protect his interest. The Act provides for "business-to- consumer" disputes and not for "business-to-business" disputes. This scheme of the Act, in our opinion, is relevant to and helps in interpreting the words that fall for consideration in this appeal" 10. The Maintenance Tribunal and the Appellate Tribunal being quasi-judicial bodies are inferior to the High Court and as such this Court will have the power of judicial review under Article 226 of the Constitution of India over the orders impugned. The High Court and the Supreme Court are the sole repositories of the power of judicial review. The Tribunals are also not civil courts and the orders impugned herein are not judicial orders. Moreover, no other efficacious, alternative statutory or legal remedy was available to the petitioner, inasmuch as, the petitioner was not a party to the proceeding before the Tribunal. Reference is also made to the unreported judgment of a Division Bench of this Court in Universal Consortium of Engineers (P) Ltd. & Ors. vs. State of West Bengal & Ors., decided on February 18, 2019 (In re: W.P. No.23027 of 2017). The relevant portion of the above unreported decision is quoted below:- "114. Reference is also made to the unreported judgment of a Division Bench of this Court in Universal Consortium of Engineers (P) Ltd. & Ors. vs. State of West Bengal & Ors., decided on February 18, 2019 (In re: W.P. No.23027 of 2017). The relevant portion of the above unreported decision is quoted below:- "114. On a cumulative assessment of the decisions of the Supreme Court, we find it difficult to persuade ourselves to agree with the proposition of law that if in a writ petition under Article 226 of the Constitution the order of the National Commission is under challenge, the High Court must dismiss the petition irrespective of the ground(s) on which such order is challenged. Indeed, notwithstanding the availability of an appellate remedy before the Supreme Court, such remedy would be illusory for many and if such a reason were assigned to dismiss a writ petition, it is justice that could be the casualty. In a given case where a party attempts to bypass a statutory redressal mechanism without any of the exceptional situations being shown to exist, most certainly the dicta in Cicilly Kallarackal (supra) would apply but such decision may not be relied upon by a respondent at the admission stage of every case to have his opponent's case dismissed as if the High Courts have no jurisdiction to receive writ petitions against any order that the National Commission is empowered to pass under the CP Act." 11. The Tribunals constituted under the said Act are an alternative dispute redressal mechanism but, adjudication by the Tribunal does not infringe the power of this Court to issue writs under the Constitution by way of judicial review. Arriving at the conclusion that the writ petition is maintainable, this Court now proceeds to deal with the other questions which have arisen in this writ petition. 12. The order dated February 8, 2018 impugned to this writ petition has been passed in exercise of power under Section 23 of the said Act. The Appellate Tribunal affirmed the order. In this case, the provisions of Section 23 and Section 6 of the said Act are required to be discussed. Section 23 is quoted below:- "23. Transfer of property to be void in certain circumstances. The Appellate Tribunal affirmed the order. In this case, the provisions of Section 23 and Section 6 of the said Act are required to be discussed. Section 23 is quoted below:- "23. Transfer of property to be void in certain circumstances. (1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal. (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 or right. (3) If, any senior citizen is incapable of enforcing the rights under sub-section (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of Section 5." 13. Section 23 of the said Act provides that when a property has been transferred by way of a gift or otherwise, by a senior citizen on the condition that the transferee or the donee would provide the basic amenities and basic physical needs to the transferor or the donor but, such transferee or donee subsequently fails to provide such amenities then, it would be deemed that the transfer was made by fraud, coercion or undue influence and the transferor would have the option of obtaining a declaration from the Maintenance Tribunal that such transfer was void. 14. Coming to the deed of gift in this case, it appears that the grandfather had gifted the property to the petitioner out of love and affection and as a reward for the respect, regard and care that the petitioner had shown to the grandfather. 14. Coming to the deed of gift in this case, it appears that the grandfather had gifted the property to the petitioner out of love and affection and as a reward for the respect, regard and care that the petitioner had shown to the grandfather. It has been specifically stated in the deed by the grandfather, that is, the respondent No.5 that being pleased with the care, love, affection, respect and good behavior of the grandson, he was executing the deed of gift as a reward in favour of his grandson and in discharge of his responsibility towards the grandson as also as a future security for the grandson. Thus, the deed of gift in this case was not a conditional gift and no responsibility had been cast upon the petitioner to maintain the grandfather that is, the respondent No.5. That apart, according to the respondent no.5, the deed of gift was void and liable to be cancelled having been obtained fraudulently. This is also not a case where respondent No.5 had a right to receive maintenance out of an estate which was transferred by way of a gift to the petitioner and the petitioner not having given the maintenance out of the said estate, the respondent No.5 in terms of Section 23(2) of the said Act had approached the Maintenance Tribunal. Section 27 of the said Act provides that a civil court shall not have any jurisdiction in respect of any matter to which the said Act applied and no injunction would be passed. However, the respondent No.5 himself approached a civil court for cancellation of the deed of gift and also filed an application for temporary injunction prior to the order passed by the Chairman. The date of registration of Case No.52 of 2017, before the Tribunal was November 7, 2017, that is, after the plaint was registered on October 26, 2017. The cause of action in the civil suit as pleaded in the plaint, had arisen due to creation of the deed of gift by fraud, coercion and undue influence by the petitioner and his father. The respondent No.5 prayed that the deed of gift should be declared illegal, void and liable to be cancelled by the civil court with a further prayer for declaration of the right, title and interest of the respondent No.5 in respect of the said property. The respondent No.5 prayed that the deed of gift should be declared illegal, void and liable to be cancelled by the civil court with a further prayer for declaration of the right, title and interest of the respondent No.5 in respect of the said property. Along with the plaint, the respondent No.5 filed an application for temporary injunction under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, with a prayer for an injunction upon the petitioner and the respondent No.6, restraining them from transferring and/or alienating the property in question as also from disturbing the peaceful possession and enjoyment of the property by the respondent No.5 and 7. Thus, in this case, Section 27 of the said Act would not operate as a bar on the pending civil suit, inasmuch as, the ingredients of Section 23 of the said Act are not satisfied so as to enable the respondent no.5 to maintain an application for a declaration that the deed of gift was void at his option under the said Act. 15. The application for temporary injunction was allowed on contest restraining, the petitioner and the respondent No.6 from disturbing the peaceful possession and enjoyment of the respondent Nos.5 and 7 in respect of the suit property. The said order was issued on February 1, 2018, that is, prior to the issuance of the order by the Chairman, Maintenance Tribunal. It is also seen from the petition filed before the Chairman, Maintenance Tribunal by the respondent No.5, that the allegation of the respondent No.5 all along was that the deed of gift had been obtained by practicing fraud at the instance of the petitioner and the respondent No.6. It was never the case of the respondent No.5 even before the Tribunal that the petitioner had violated the conditions of the gift by not providing the basic amenities and physical needs to the respondent No.5 as mandated in the deed of gift. 16. It was never the case of the respondent No.5 even before the Tribunal that the petitioner had violated the conditions of the gift by not providing the basic amenities and physical needs to the respondent No.5 as mandated in the deed of gift. 16. In my view, the orders impugned to this writ petition had been passed without jurisdiction inasmuch as, according to the respondent No.5, the deed of gift was not voluntarily executed but, was obtained by fraud, coercion and undue influence and on such allegations the respondent No.5 had already approached the civil court for a declaration of title and a further declaration that the deed was void and liable to be cancelled. The respondent No.5 also obtained an order of temporary injunction from the civil court against the petitioner and the respondents No.6. It is not a case where the deed of gift was voluntarily made by the donor that is, the grandfather on the condition that the petitioner that is, the grandson would look after and provide the basic amenities to the grandfather and as such, Section 23 of the said Act would not be attracted. Moreover, parallel proceedings on the self-same causes of action was not maintainable. 17. Now, coming to the question of service of notice and effect of not impleading the petitioner as a party before the Maintenance Tribunal, the procedure to be followed by the Maintenance Tribunal requires to be discussed. Section 6 of the said Act is quoted below:- "6. Jurisdiction and procedure. (1) The proceedings under Section 5, may be taken against any children or relative in any district (a) where he resides or last resided; or (b) where children or relative resides. (2) On receipt of the application under Section 5, the Tribunal shall issue a process for procuring the presence of children or relative against whom the application is filed. (3) For securing the attendance of children or relative the Tribunal shall have the power of a Judicial Magistrate of first class as provided under the Code of Criminal Procedure, 1973 (2 of 1974). (3) For securing the attendance of children or relative the Tribunal shall have the power of a Judicial Magistrate of first class as provided under the Code of Criminal Procedure, 1973 (2 of 1974). (4) All evidence to such proceedings shall be taken in the presence of the children or relative against whom an order for payment of maintenance is proposed to be made, and shall be recorded in the manner prescribed for summons cases : Provided that if the Tribunal is satisfied that the children or relative against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Tribunal, the Tribunal may proceed to hear and determine the case ex parte. (5) Where the children or relative is residing out of India, the summons shall be served by the Tribunal through such authority, as the Central Government may by notification in the Official Gazette, specify in this behalf. (6) The Tribunal before hearing an application under Section 5 may, refer the same to a Conciliation Officer and such Conciliation Officer shall submit his findings within one month and if amicable settlement has been arrived at, the Tribunal shall pass an order to the effect. Explanation. For the purposes of this sub-section "Conciliation Officer" means any person or representative of an organisation referred to in Explanation to sub-section (1) of Section 5 or the Maintenance Officers designated by the State Government under sub-section (1) of Section 18 or any other person nominated by the Tribunal for this purpose." 17. Section 6 (2) clearly provides that the Tribunal on receipt of an application should issue a process for securing the presence of the children or relative against whom the application had been filed. In this case, the application had been filed against the respondent No.6 before the Tribunal although, the relief sought for was against the petitioner and the Chairman was bound to secure the presence of the petitioner by holding that he was a necessary and proper party. The deed of gift sought to be cancelled was executed in favour of the petitioner and not the respondent No.6. Before this Court, the respondent No.3 was asked to produce records of the proceeding in order to justify the observation made by the Chairman in the order dated February 8, 2018, that the petitioner had been heard. The deed of gift sought to be cancelled was executed in favour of the petitioner and not the respondent No.6. Before this Court, the respondent No.3 was asked to produce records of the proceeding in order to justify the observation made by the Chairman in the order dated February 8, 2018, that the petitioner had been heard. No such record could be produced, apart from a copy of the summons issued to the respondent No.6 which was received by the petitioner. In a proceeding of such nature, in terms of Section 6, the Tribunal was bound to ensure the presence of the petitioner and direct that the petitioner should be impleaded as an opposite party before passing any order in the matter. The order of the Chairman, Maintenance Tribunal dated February 8, 2018 was not only without jurisdiction but also suffered from procedural impropriety as the person against whom the order was passed was not a party to the proceeding. The order dated May 28, 2018 passed by the Appellate Tribunal is also without jurisdiction and perverse, inasmuch as, the Appellate Tribunal also failed to appreciate this aspect. 18. The Appellate Tribunal passed the order dated May 28, 2018 mechanically, without appreciating the contentions of the respondent No.6, with regard to non-joinder of the petitioner before the Tribunal and also non-applicability of Section 23 of the said Act. Whether the appeal was at all maintainable at the instance of the respondent No.6, before the Appellate Tribunal is not relevant in this case. However, some high courts are of the view that any aggrieved party can file an appeal and not only the senior citizen or parent. In any event, the petitioner did not have a right of appeal as he was not a party to the proceedings before the Chairman Maintenance Tribunal. 19. In view of the observation made hereinabove, I find that the Chairman, Maintenance Tribunal erred in passing the order dated February 8, 2018 in exercise of power under Section 23 of the said Act after the order of temporary injunction was passed by a competent civil court. It was not the case of the respondent No.5 that the deed of gift should be deemed to be void due to the failure on the part of the petitioner to maintain the respondent No.5 which was a pre-condition in the deed of gift. It was not the case of the respondent No.5 that the deed of gift should be deemed to be void due to the failure on the part of the petitioner to maintain the respondent No.5 which was a pre-condition in the deed of gift. I find from the pleadings, both in the suit as also before the Tribunal that the specific case of the respondent No.5 was that the deed of gift was null and void as the same was obtained by practicing fraud, coercion and undue influence on the respondent No.5 by the petitioner and the respondent No.6 at the time when the respondent No.5 was physically and mentally unfit. Thus, Section 23 of the said Act would not be applicable in the facts of this case and the validity and legality of the deed of gift will be decided in the civil suit. Further, the Tribunal could not have passed any order in the absence of the petitioner who was a necessary and proper party to the proceeding. The orders dated February 8, 2018 passed by the Chairman as also the order of affirmance dated May 28, 2018 passed by the Appellate Tribunal are hereby quashed and set aside. 20. This writ petition is allowed. 21. There will be, however, no order as to costs. Urgent photostat Certified Copy of this judgment, if applied for, be given to the parties, on priority basis.