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Jose v/s The Maintenance Appellate Tribunal, Thrissur District & Another

    WP(C). No. 41091 of 2017

    Decided On, 03 July 2018

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

    For the Petitioner: M.K. Dileep Kumar, Advocate. For the Respondents: R1, Saigi Jacob Palatty, Senior Government Pleader, R2, Santhosh P. Poduval, R. Rajitha, Advocates.



Judgment Text

1. The petitioner herein, who is a senior citizen, is aggrieved by Ext.P-5 appellate order dated 21.11.2017 rendered by the 1st respondent appellate Tribunal, by which the petitioner's appeal as per Ext.P-3 impugning Exts.P-2 order rendered by the original Tribunal constituted under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, has been rejected. The prayers in this Writ Petition (Civil) are as follows:

I. Declare that the finding in the Ext.P-5 order passed under the authority of the first respondent, declaring that execution of the gift deed before the age of 60 will not confer the right of cancellation of the deed at the event of neglect by the person who received the gift and denying maintenance to the senior citizen from their relative who received their property, are violative of the Sections 23 and Section 4(4) respectively of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and therefore, the Ext.P-5 order is unsustainable in law.

II. Issue a writ of Certiorari or such other writ or order quashi

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ng the Ext.P-5 order of the first respondent.

III. Issue a Writ of Mandamus or such other Writ or order directing the first respondent to proceed and decide the appeal afresh in accordance with the law declared by this Hon'ble court.'

2. Heard Sri.M.K.Dileep Kumar, learned counsel appearing for the petitioner, Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for the 1st respondent and Sri.Santhosh P.Poduval, learned counsel appearing for contesting respondent No.2.

3. It is the case of the petitioner that he had executed settlement deed No.3156/2008 dated 30.12.2008 of SRO, Kattur, Thrissur District, whereby the property covered therein was settled in favour of the 2nd respondent, who is his wife and that thereafter, the 2nd respondent had totally neglected him. On the grievance that the 2nd respondent wife had neglected him and had not taken due care of him, the petitioner had filed Ext.P-1 application dated 17.10.2016 before the Tribunal presided over by the Revenue Divisional Officer (R.D.O.) constituted as per the abovesaid Act, seeking a direction for grant of maintenance from the 2nd respondent as well as for cancellation of the settlement deed. By Ext.P-2 order dated 27.1.2017, the Tribunal had dismissed the pleas of the petitioner on the ground that similar plea made by the petitioner before the Family Court was rejected by that court and that Ext.P-1 complaint will not come within the purview of the abovesaid Act relating to the Maintenance and Welfare of Parents & Senior Citizens Act, 2007. Aggrieved by Ext.P-2, the petitioner has preferred Ext.P-3 appeal under Sec.16 of the abovesaid Act 2007 before the 1st respondent appellate Tribunal. The appellate Tribunal has dismissed the appeal as per the impugned Ext.P-5 order dated 21.11.2017. The main ground on which the 1st respondent appellate Tribunal dismissed the appeal as per Ext.P-5 is that the settlement deed was executed and registered on 30.12.2008 and as on that date, the petitioner was only aged 58 and that therefore, he will not fulfill the definition of 'senior citizen' as per Sec. 2(h) of the above Act and therefore, the petitioner cannot maintain a complaint under Sec.23(1) of the Act. It is this order at Ext.P-5 that is essentially under challenge in this Writ Petition (Civil).

4. Sri.M.K.Dileep Kumar, learned counsel appearing for the petitioner would submit that the impugned Ext.P-5 appellate order was rendered by an officer of the rank of Sub Collector, who was only holding the additional in charge of the post of the District Collector, as the regular incumbent in the post of District Collector was then not available. On this basis, it is contended that Sec.15(2) of the Act mandates that the appellate Tribunal shall be presided necessarily over by an officer not below the rank of District Magistrate, in contradistinction to the provisions contained in Sec.7(2) of the said Act wherein, it has been stated that the original Tribunal shall be presided over by an officer, not below the rank of a Sub Divisional Officer of the State. On the basis of this provision, it is argued by the learned counsel appearing for the petitioner that the appeal could be considered and disposed only by an officer not below the rank of District Magistrate/District Collector and that an officer of the rank of Sub Collector is not in the rank of District Magistrate/District Collector and at best, he could be a Sub Divisional Officer of the sub division concerned and that therefore, the impugned appellate is order passed by an officer, without jurisdiction. Further it is contended by the petitioner that the finding in Ext.P-5 that the applicant senior citizen concerned should necessarily be a senior citizen at the time of execution of the transfer deed, that is sought to be voided as per the provisions of the Act, is not tenable and correct in law. That though the transfer deed, which is sought to be voided, will have to be executed on or after the coming into force of the Act (24.9.2007), that will not preclude the transferor from seeking appropriate remedies under Sec.23(1) of the Act so long as he is a senior citizen at the time of his grievances. That the only condition is that the transfer deed should have been executed on or after coming into force of the Act and irrespective as to whether the transferor is of the age of 60 years at the time of the said transfer deed, will not be in any manner preclude him/her from seeking remedies under Sec. 23(1) of the Act so long as he/she has the valid cause of action at the time of presentation of the petition before the original Tribunal. Further it is pointed out by the petitioner that the prayers before the original Tribunal consists firstly for seeking monetary maintenance from the 2nd respondent wife, which is under the provisions of Sec.4 read with Sec.5 of the Act and secondly, for voiding the settlement deed under Sec. 23(1) of the Act. That even assuming that there is any handicap in seeking the latter prayer, the original Tribunal as well as the appellate Tribunal went wrong in not considering the merits of the former prayer for maintenance, as indisputably it cannot be said that the said payer is barred by virtue of the provisions contained in the Act inasmuch as the petitioner was a senior citizen as he was above the age of 60 at the time of the cause of action that is projected in Ext.P-1 application. Accordingly, it is urged that the failure of the original Tribunal and the appellate Tribunal in considering this crucial aspect would amount to illegality and failure of justice and that the matter requires a remit.

5. Per contra, Sri.Santhosh P.Poduval, learned counsel for the petitioner submits that the plain reading of Sec. 23(1) would make it clear that not only that transfer deed as per Ext.P-1 should have been executed on or after coming into force of the Act but also that the applicant, who is seeking the relief under Sec. 23(1) of the Act should have been a senior citizen at the time of execution of the transfer deed. That in the instant case, the petitioner was only aged 58 years at the time of the execution of the transfer deed and that as he was not a senior citizen at that time, the basic jurisdictional facts required for invocation of remedy under Sec. 23(1) are completely absent in this case, etc. Various other aspects on the merits of the matter have also been advanced by Sri.Santhosh P.Poduval, learned counsel appearing for R-2.

6. In the nature of the orders that is proposed to be passed by this Court in this petition, it is not necessary for this Court as of now to decide any of the contentions of the petitioner other than the one that the officer, who had passed Ext.P-5 appellate order lacked jurisdiction to assume such appellate function. In the instant case, it is not in dispute that Ext.P-5 order was rendered by an officer of the rank of Sub Collector/Deputy Collector, who was having additional in charge of the post of District Magistrate/District Collector, presumably as the services of the regular incumbent in the post of District Collector was not then available. Sec.15(1) mandates that the appellate Tribunal shall be presided over by an officer not below the rank of District Magistrate. In contradistinction to that, Sec. 7(2) of the Act mandates that original Tribunal shall be presided over by an officer not below the rank of Sub Divisional Officer of the State. When that is the hierarchy of the Tribunals constituted under the above Act, it is clear like the day light that the appellate powers and functions can be assumed and rendered only by an officer of the rank of District Magistrate and an officer, who happened to have additional charge of the post of District Magistrate/District Collector and who is actually inferior in rank to the regular incumbent in the post of District Magistrate/District Collector cannot be employed to assume the appellate jurisdiction. In the Writ Petition it is specifically pleaded that the impugned Ext.P-5 appellate order has been rendered by one Sri.C.V.Sajan, who is in the rank of Deputy Collector/Sub Collector. It is also urged in the Writ Petition that the appeal was actually heard by the regular incumbent in the post of District Collector, one Sri.Kousikan, but that later the impugned Ext.P-5 appellate order was rendered by one Sri.C.V.Sajan, who is in the rank of Deputy Collector/Sub Collector. These factual averments are not in any manner disputed by the 2nd respondent. In these circumstances, this Court is constrained to hold that the officer, who had actually passed Ext.P-5 order was an officer in the rank of Deputy Collector/Sub Collector did not have jurisdiction to assume appellate functions under Sec.15 read with Sec.16 of the abovesaid Act. On that ground alone, the impugned appellate order is liable to be quashed. Accordingly, it is ordered that the impugned Ext.P-5 order is set aside solely on the abovesaid ground and the matter will stand remitted to the appellate Tribunal presided over by an officer of the rank of District Magistrate/District Collector to pass orders afresh on Ext.P- 3 appeal. The petitioner and respondent No.2 should be afforded reasonable opportunity of being heard and the respective rival contentions should be adverted to and considered by the appellate Tribunal and a considered order should be passed on Ext.P-3 appeal, without much delay preferably within a period of two months from the date of production of a certified copy of this judgment. It is made clear that this Court has set aside the impugned Ext.P-5 order on the sole ground that the officer, who passed the said order does not have jurisdiction to do so and all other contentions of either side are left open to be considered afresh for decision by the appellate Tribunal.

With these observations and directions, the above Writ Petition (Civil) stands finally disposed of.
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