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2024 DIGILAW 699 (TS)

Dayalla Kanthamma v. State of Telangana

2024-09-09

K.LAKSHMAN

body2024
ORDER: K. Lakshman, J. Heard Sri M. Ratan Singh, learned counsel for the petitioner, Sri L.Ravinder, learned Asst.Govt.Pleader for Revenue. 2. This writ petition is filed challenging the order dated 07.10.2023 in proceedings No.E/1268/2023 passed by the 3rd respondent. 3. 1st respondent filed an application under Section 4 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short, ‘the Act’) before the 3rd respondent claiming maintenance and also to cancel the gift settlement deed bearing No.46/2018 dated 08.01.2018 executed by her in favour of her grandson/5th respondent herein. 4. Vide order dated 07.10.2023, respondent No.3 basing on the compromise settlement report submitted by Sri Aged Division Raj, Bhuvanagiri Gars, Sri Dayyala Shivayya and Sri Dayyala Mahesh, respondents 4 and 5 respectively and directed the respondents 4 and 5 to pay an amount of Rs.2,000/- per month towards maintenance to the petitioner herein. 5. Feeling aggrieved by the said order, the petitioner filed the present writ petition contending that the 3rd respondent is not having power to resolve the issue between the parties recorded compromise or settlement and he cannot pass such an order. 6. Heard the rival contentions. 7. If the petitioner is aggrieved by the said order, she has to prefer an appeal under Section 16 of the Act, but she cannot file the present writ petition. Section 16 of the Act is relevant and the same is extracted below:- 16. Appeals. — (1) Any senior citizen or a parent, as the case may be, aggrieved by an order of a Tribunal may, within sixty days from the date of the order, prefer an appeal to the Appellate Tribunal: Provided that on appeal, the children or relative who is required to pay any amount in terms of such maintenance order shall continue to pay to such parent the amount so ordered, in the manner directed by the Appellate Tribunal: Provided further that the Appellate Tribunal may, entertain the appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. (2) On receipt of an appeal, the Appellate Tribunal shall, cause a notice to be served upon the respondent. (3)The Appellate Tribunal may call for the record of proceedings from the Tribunal against whose order the appeal is preferred. (2) On receipt of an appeal, the Appellate Tribunal shall, cause a notice to be served upon the respondent. (3)The Appellate Tribunal may call for the record of proceedings from the Tribunal against whose order the appeal is preferred. (4) The Appellate Tribunal may, after examining the appeal and the records called for either allow or reject the appeal. (5) The Appellate Tribunal shall, adjudicate and decide upon the appeal filed against the order of the Tribunal and the order of the Appellate Tribunal shall be final: Provided that no appeal shall be rejected unless an opportunity has been given to both the parties of being heard in person or through a duly authorised representative. (6) The Appellate Tribunal shall make an endeavour to pronounce its order in writing within one month of the receipt of an appeal. (7) A copy of every order made under sub-section (5) shall be sent to both the parties free of cost. 8. It is also apt to note that the object behind the Act, and the Telangana State Maintenance and Welfare of Parents and Senior Citizens Rules, 2011 and amended Rules 2022 (for short, ‘the Rules’) made thereunder 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 6 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. 9. Thus, as can be seen from the above Rules, 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. 10. After receiving the application, the Sub-Divisional Magistrate/Revenue Divisional Officer shall conduct enquiry into the question of prima facie 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. 11. 10. After receiving the application, the Sub-Divisional Magistrate/Revenue Divisional Officer shall conduct enquiry into the question of prima facie 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. 11. 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. 12. The Rules 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. 13. 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. 14. 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. 15. Once an application is filed and the procedure under Rule 21(3) of Rules, is followed, the Collector & District Magistrate’s duty 8 is only to satisfy himself/herself that the senior citizen’s life or dignity is threatened by the children/legal heirs on account of nonmaintenance 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. 16. 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. 17. 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. 18. Compliance of the procedure also becomes necessary as rights of senior citizens can be used to evict children by by-passing 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. 19. 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. 20. 19. 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. 20. 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. 21. 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. Thus, there are several factual aspects which this Court cannot consider in a petition filed under Section 226 of the Constitution of India. Therefore, this writ petition is not maintainable and is liable to be dismissed. 22. In the light of the same, this writ petition is dismissed. However, liberty is granted to the petitioner to prefer an appeal in terms of Section 16 of the Act, before the 2nd respondent. Liberty is also granted to the petitioner to raise all the grounds and contentions which she has raised in the present writ petition, before the 2nd respondent in the appeal and it is for the 2nd respondent to consider the said appeal. In the circumstances of the case, there shall be no order as to costs. As a sequel, the miscellaneous petitions, if any, pending in the writ petition shall stand closed.