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2024 DIGILAW 698 (TS)

Gaddam Swamy Reddy v. State of Telangana

2024-09-09

K.LAKSHMAN

body2024
ORDER : K. Lakshman, J. Heard Sri Pochaiah Dorishetti, learned counsel for the petitioner and learned Assistant Government for Women Development and Child Welfare and Senior Citizens Department appearing for respondent No.1. 2. The 6th respondent/father of the petitioner filed an application before the 2nd respondent for cancellation of the gift deed executed by him in favour of the petitioner. Vide order dated 12.08.2024, the 2nd respondent cancelled the said gift deed document bearing No.333/2017, dated 22.02.2017 in respect of the lands admeasuring Ac 0.2050 gts, Ac 0.13 gts, Acs 4.12 gts, Ac 1.00 gts in survey Nos.139, 164/A, 165A/2, 165B respectively. The 2nd respondent also directed the petitioner and the 7th respondent, to pay an amount of Rs.10,000/- per month to the 6th respondent for six months. It is an appealable order in terms of the Telangana Maintenance and Welfare of Parents and Senior Citizens Rules, 2011 and amended Rules, 2022 (for short, “the Rules”) more particularly Rule 21(4) of the said Rules. 3. In the light of the aforesaid submissions, it is apt to note that the object behind the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short, ‘the Act’) is to protect the senior citizens and their dignity to live in their own house. The procedure to file and decide an application seeking eviction by a senior citizen was added vide G.O.Ms.No.40 dated 30.12.2022. Rule 21(3) was added and the same is extracted below: (3) Procedure for eviction from property of Senior Citizen/Parents: (a) (i) A senior citizen/parent, may make an application before the Collector & District Magistrate of his/her district, for eviction of his/her children/legal heir from his/her property on account of his/her non- maintenance and/or ill-treatment. (ii) The Collector & District Magistrate shall immediately forward such application to the concerned Sub-Divisional Magistrate/Revenue Divisional Officer for verification of the title of the property and facts of the case within fifteen (15) days from the date of receipt of such application. (iii) The Sub-Divisional Magistrate/Revenue Divisional Officer shall immediately submit his/her report to the Collector & District Magistrate for final orders within sixty (60) days from the date of receipt of the application. (iv) The Collector & District Magistrate during summary proceedings for the protection of senior citizens/parents shall consider all the relevant provisions of the Act. (iii) The Sub-Divisional Magistrate/Revenue Divisional Officer shall immediately submit his/her report to the Collector & District Magistrate for final orders within sixty (60) days from the date of receipt of the application. (iv) The Collector & District Magistrate during summary proceedings for the protection of senior citizens/parents shall consider all the relevant provisions of the Act. If the Collector & District Magistrate is of the opinion that any children/ legal heir of a senior citizen /parent is not maintaining the senior citizen/parent and/or ill-treating him/her/them and yet is occupying the property of the senior citizen/parent and that they should be evicted, the Collector & District Magistrate shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause as to why an order of eviction should not be issued against them/ him/ her. (v) The notice shall;- (i) specify the grounds on which the order of eviction is proposed to be made; and (ii) require all persons concerned, that is to say, all persons who are, or may be, in occupation of, or claim interest in, the property, to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than ten (10) days from the date of issue thereof. (b) Eviction order from property of senior citizen/ parent: If, after considering the cause, if any, shown by any person in pursuance to the notice and any evidence he/she may produce in support of the same and after giving him/her a reasonable opportunity of being heard, the Collector & District Magistrate is satisfied that the eviction order needs to be made, the Collector & District Magistrate may make an order of eviction, for reasons to be recorded therein, directing that the property shall be vacated. (c) Enforcement of orders: - (i) If any person refuses or fails to comply with the order of eviction within thirty (30) days from the date of its issue, the Collector & District Magistrate or any other officer duly authorised by the Collector & District Magistrate in this behalf may evict that person from the premises in question and take possession; (ii) The Collector & District Magistrate shall have powers to enforce the eviction orders through police and the District Superintendent of Police or Commissioner of Police, in case of cities, concerned shall be bound to carry out execution of the eviction order; (iii) The Collector & District Magistrate will further hand over the property in question to the concerned senior citizen /parent; and (iv) The Collector & District Magistrate shall forward monthly report of such cases to the Director, Department for Empowerment of Persons with Disabilities, Senior Citizens and Transgender Persons by 7th of the following month. (d) Appeal: - (i) Any appeal against the order of the Collector & District Magistrate shall lie before the Commissioner/Director, Department for Empowerment of Persons with Disabilities, Senior Citizens and Transgender Persons, Telangana, within thirty (30) days of the issue of the orders by the District Collector & Magistrate. (ii) Provisions regarding disposal of appeals before Appellate Tribunal shall apply mutatis mutandis to the appeals before the Commissioner/Director, Department for Empowerment of Persons with Disabilities, Senior Citizens and Transgender Persons, Telangana. 4. Thus, as can be seen from the above Rule, a senior citizen can seek eviction of his/her children from his/her property on account of non-maintenance or ill-treatment. A senior citizen can file an application seeking eviction before the Collector & District Magistrate. On receipt of such application, the Collector & District Magistrate, within 15 days from date of receipt of the application, shall forward the said application to the Sub-Divisional Magistrate/Revenue Divisional Officer to verify the title of the property and the facts. 5. After receiving the application, the Sub-Divisional Magistrate/Revenue Divisional Officer shall conduct enquiry into the question of title and the fact of non-maintenance/illtreatment. A report in this regard shall be submitted to Collector & District Magistrate within a period of 60 days from the date when the application was received by the Sub-Divisional Magistrate/Revenue Divisional Officer. 6. 5. After receiving the application, the Sub-Divisional Magistrate/Revenue Divisional Officer shall conduct enquiry into the question of title and the fact of non-maintenance/illtreatment. A report in this regard shall be submitted to Collector & District Magistrate within a period of 60 days from the date when the application was received by the Sub-Divisional Magistrate/Revenue Divisional Officer. 6. After perusing the report, the Collector & District Magistrate, if he/she is of the opinion that, the senior citizen was not being maintained or was being ill-treated, issue a show cause notice to the child/children who are staying in the senior citizen’s house. 7. The Rule also provides the form of the show cause notice. The show cause notice shall mention the grounds on which their eviction from the property is proposed. At least 10 days’ time is to be granted to the children to file a reply to the show cause notice. 8. After perusing the show cause notice, giving an opportunity to produce evidence and a reasonable opportunity of hearing, the Collector & District Magistrate can order eviction, if it is found that the senior citizen was ill-treated or was not maintained. 9. It is relevant to note that the proceedings for eviction under Rule 21(3) of Rules, 2011 are summary in nature. This means that no detailed inquiry into the question of title or the allegations is necessary. Further, there is no requirement of strict examination of the evidence led by the parties. What is required is a fair opportunity to the parties to place their case on record 10. Once an application is filed and the procedure under Rule 21(3) of Rules, is followed, the Collector & District Magistrate’s duty is only to satisfy himself/herself that the senior citizen’s life or dignity is threatened by the children/legal heirs on account of non-maintenance or ill-treatment. A detailed inquiry akin to proceedings before a court of law is not necessary. The scope of enquiry in eviction applications filed by senior citizens was explained by the Delhi High Court in Pawan Kumar v. State (NCT of Delhi) 2022 SCC OnLine Del 3354 as follows: 9. As rightly pointed out by the authorities below and by the learned Single Judge of this Court the exercise under the Senior Citizens Act is not to ascertain the title of the property in question. As rightly pointed out by the authorities below and by the learned Single Judge of this Court the exercise under the Senior Citizens Act is not to ascertain the title of the property in question. The enquiry is limited to see as to whether the senior citizen is being harassed by his children or not and if the senior citizen is harassed then for his/her welfare it is necessary that the children/legal heirs are asked to evict the property. The proceedings which are summary in nature are not to decide the title of the property. In view of the above, the principle contention of the Appellants herein that the Respondent No. 2 is not the owner of the property in question is insignificant. Any right which the Appellants want to establish has to be established under the Civil Code by filing a suit before the Civil Court. 11. When this Court states that the nature of enquiry is summary in nature, it should also be borne in mind that the children shall have to suffer an order of eviction. Therefore, it is important to balance the right of the senior citizen in light of the object of the Act, and the duty not arbitrarily evict children. 12. Such balance can be achieved by strictly following the procedure laid down. It must be noted that the procedure to be followed is summary in nature. Rule 21(3) permits the Collector/District Magistrate to pass an eviction order in a summary proceeding. Such order can be punitive and onerous, if the law on protection of senior citizens is misused. Therefore, the procedure needs strict compliance. 13. Compliance of the procedure also becomes necessary as rights of senior citizens can be used to evict children by bypassing the civil court proceedings. For instance, where there is a serious title dispute between the children of the senior citizens or between the senior citizens and the children, the eviction proceedings under the Act and Rules thereunder can be used to obtain an order of eviction. 14. Therefore, while technicalities can be overlooked to give affect to the object of the Act and the Rules thereunder, it must also be ensured that there is substantial compliance of the procedure. Total non-compliance of procedure in a summary proceeding is impermissible and has the potential of substantially prejudicing one party. 15. 14. Therefore, while technicalities can be overlooked to give affect to the object of the Act and the Rules thereunder, it must also be ensured that there is substantial compliance of the procedure. Total non-compliance of procedure in a summary proceeding is impermissible and has the potential of substantially prejudicing one party. 15. There is no dispute with regard to the legal position that under the following three exceptional circumstances though an alternative remedy is available, the writ petition is maintainable. The said three circumstances are as follows:- i. A breach of fundamental rights; ii. A violation of the principles of natural justice; iii. An excess of jurisdiction; or a challenge to the vires of the statute or delegated legislation. 16. The said principle was also laid down by the three Judge Bench of the Apex Court in Asst. Commissioner of State Tax Vs. Commercial Steel Limited Manu/SC/0801/2021 and also Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai (1998) 8 SCC. Whereas, in the present case, it is not falling in any of the aforesaid three categories. Therefore, the petitioner herein cannot contend that though there is an alternative and efficacious remedy, the present writ petition is maintainable. Moreover, there are several factual aspects which this Court cannot consider in a petition filed under Section 226 of the Constitution of India. 17. In the light of the same, this Writ Petition is disposed of granting liberty to the petitioner to prefer an appeal under Rule 21(4) of the Rules, 2011 before the Commissioner, Women Development and Child Welfare and Senior Citizen Department. It is for the appellate authority to consider the same by following the procedure laid down under the Act and the Telangana State Maintenance and Welfare of Parents and Senior Citizens Rules, 2011 and amended Rules 2022, more particularly Rule 21. At this stage, learned counsel for the petitioner seeks protection for ten (10) days, to avoid third party interest over the subject property. In the light of the same, ten (10) days from today, the impugned order dated 12.08.2024 of the 2nd respondent shall not be given effect. In the circumstances of the case, there shall be no order as to costs. Miscellaneous applications, if any, pending shall stand closed.