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Najeeb, Thiruvananthapuram District, Represented by His Power of Attorney Holder Sajeela v/s The Maintenance Tribunal, Represented by The Presiding Officer, Revenue Divisional Officer, Thiruvananthapuram & Others

    WP(C). No. 41379 of 2017

    Decided On, 28 June 2018

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

    For the Petitioner: P. Anoop (Mulavana), Advocate. For the Respondents: R1, R2, Saigi Jacob Palatty, Government Pleader, R3, R.B. Rajesh, Advocate.



Judgment Text

1. The petitioner is essentially aggrieved by the impugned Ext.P-1 order dated 24.01.2017 passed by the 1st respondent and Ext.P-6 order dated 07.12.2017 passed by the 2nd respondent, whereby, the petitioner has been ordered to pay maintenance of Rs.5,000/- per month to the 3rd respondent, who is his mother in terms of the provisions contained in the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The 3rd respondent (mother of the petitioner), had filed application for maintenance and other reliefs under the provisions contained in the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The claim in that regard made by the 3rd respondent was entertained by the 1st respondent Tribunal presided over by the Revenue Divisional Officer, Thiruvananthapuram and it was ordered as per impugned Ext.P-1 order dated 24.01.2017 that the petitioner should pay maintenance of Rs.5,000/- per month to the 3rd respondent, who is his mother. Aggrieved by this, the petitioner had filed Ext.P-2 appeal dated 17.04.2017 before the 2nd respondent Appellate Tribunal presided over by the District Collector, by virtue of the provisions contained in Section 16(1) of the abovesaid Act. Ext.P-2 appeal has now been rejected by the 2nd respondent-Appellate Authority as per the impugned Ext.P-6 order dated 07.12.2017 on the ground that appeal as conceived in Section 16 could be maintained only by the aggrieved senior citizen/parent concerned and not by the respondent in su

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ch a claim before the original authority who had directed to pay the maintenance. These orders are under challenge in this writ petition. The prayers in this Writ Petition (Civil) are as follows:

'i) Issue a writ of certiorari and call for the records and quash Ext P6 order passed by the 2nd respondent.

ii) Issue a writ of mandamus or other appropriate writ, order or direction directing the 2nd respondent to take up the appeal u/s 16(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 filed by the petitioner and hear the same on merits.

iii) Grant such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.'

2. Heard Sri.P.Anoop Mulavana, learned counsel appearing for the petitioner, Sri.R.B.Rajesh, learned counsel appearing for contesting respondent No.3 and Sri.Saigi Jacob Palatty, learned Sr.Government Pleader appearing for respondents 1 and 2.

3. One of the main issues that arises for consideration in this case is as to whether an appeal could be maintained by person like the petitioner who is the respondent in the Maintenance Claim before the Original Tribunal, by virtue of the provisions contained in Section 16 of the abovesaid Act. Section 16 of the Act provides as follows :

'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.

(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 Appeallate 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 authorized 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.'

4. A plain reading of Section 16 of the Act, more particularly Sub-sec.(1) thereof would make it clear that the appeal as conceived in that provision could be maintained only if the senior citizen or parent, who is the claimant before the Tribunal, is aggrieved by the order of the Tribunal and not at the instance of the respondent in the application before the Tribunal.

5. However, Sri.P.Anoop Mulavana, learned counsel appearing for the petitioner would place reliance on the judgment dated 28.05.2014 rendered by the Division Bench of the Punjab and Haryana High Court in the case in Paramjit Kumar Saroya v. Union of India and another reported in AIR 2014 P&H 121=2014 KHC 3407, paras 21 and 22, which reads as follows :

'21- A. An appeal is envisaged "against the order of the Tribunal". This is how S.15 reads. It does not say an appeal only by a senior citizen or parent. However, sub section (1) of S.16 refers to any senior citizen or parent "aggrieved by an order of the Tribunal". This seeks to give an impression on a plain reading as if only a senior citizen or parent can prefer an appeal and, thus, restricting the appeal to only one set of party, while denying the right of appeal to the oppostie side who are liable to maintain. However, this is not followed by the first proviso which deals with the operation of the impugned order during the pendency of the appeal and clarifies that the pendency of the appeal will not come in any manner in the way of the children or relative who is required to pay any amount in terms of any such order to continue to pay the amount. Now it can hardly be envisaged that in an appeal filed by the senior citizen or parent, there could be a question of absence of stay. Such absence of stay was only envisaged where the appeal is preferred by a children or relative. It is that eventuality the proviso deals with. The proviso is, thus, consistent with what has been set out in S.15 of the said Act.

22. The petitioners assailed the provisions of sub section (1) of S.16 of the said Act on the ground that there cannot be a right to appeal only to one of the affected parties, as anomalous situation would be created against the same order with which both the parties may be aggrieved i.e. where a greater or lesser claim is made in relation to any property or maintenance, as one party being the senior citizen or parent would prefer an appeal before the Appellate Tribunal, while the party which is liable to give maintenance would have to take recourse to the supervisory jurisdiction of the High Court. Thus, two paralleal proceedings in the different forums qua the same order would arise. The submission, thus, is that these provisions should be struck down as ultra-vires, the intent of the other provisions of the said Act or the constitutional scheme. In the alternative the provision should be read down to make it consistent with the other provisions and, thus, confer a right of appeal even to the other affected party."

However, the learned Sr.Government Pleader has brought to the notice of this Court that the Gujarat High Court in the judgment in Rajeshkumar Bansraj Gandhi and another v. State of Gujarat and others reported in AIR 2016 Guj. 129 = 2016 KHC 3804 has categorically held that going by the provisions contained in Section 16 of the abovesaid Act, appeal could be maintained only in case, the parent/senior citizen concerned is aggrieved by the order passed by the Tribunal and that in case, the respondent in the application before the Tribunal is having any grievance in respect of the order that is passed by the Tribunal in favour of the parent/senior citizen, then such a party cannot maintain an appeal under Section 16 of the Act. After hearing both sides, this Court is of the view that the plain and simple language employed by the legislature in Sec.16 is very clear and categoric. Moreover, the said provision would make it abundantly clear that the very intention of the legislature to enact such a provision is to ensure speedy and efficacious adjudication of such claims in relation to the grievances of parents/senior citizens as conceived in the Act and that only in a case where the senior citizen or parent is aggrieved by the order of the Tribunal, that an appeal could be instituted and in case the respondent in the application filed before the Tribunal is having any grievance, then he is not facilitated to prefer an appeal as per the Act. In this view of the matter, this Court respectfully is not inclined to concur with the views in the abovesaid judgment in Paramjit Kumar Saroya's case (supra) reported in AIR 2014 P&H 121=2014 KHC 3407. Accordingly, the abovesaid contentions raised by the petitioner that the impugned Ext.P-6 appellate order is liable to be set aside and that Ext.P-2 appeal is liable to be remitted to the 2nd respondent-Appellate Tribunal etc., is untenable. So the challenge against Ext.P-6 order cannot be entertained by this Court. However, there is one aspect in the matter as no appellate remedy is conferred on a party who is the respondent in the application before the Tribunal, in case, he is aggrieved by the orders passed by that Tribunal in favour of the senior citizen/parent concerned. Then such an aggrieved party could maintain a petition under Art.226 and/or Art.227 of the Constitution of India provided, he/she can make out valid grounds for sustaining such a challenge in those proceedings in view of the legal principles importable from decisions of the Apex Court in cases as in State of Punjab and another v. Jalour Singh and others reported in (2008) 2 SCC 660, L.Chandrakumar v. Union of India and others reported in AIR 1997 SCC 1125=1997 (3) SCC 261.

6. Sri.P.Anoop Mulavana, learned counsel for the petitioner would then make an alternative plea that this Court may interfere with the impugned Ext.P-1 order passed by the 1st respondent Tribunal, as it is illegal and improper etc. On going through the pleadings and the materials on record, this Court is of the view that the 1st respondent-Tribunal has passed a considered order after taking into account the rival submissions on both sides and then has come to a considered conclusion that the 3rd respondent (mother), is entitled for a maintenance of Rs.5,000/-. A vague plea has been taken up by way of grounds in the writ petition that the 1st respondent should have heard the petitioner before the passing of the impugned Ext.P-1 order. There is no clear assertion in the grounds urged by the petitioner that as a matter of fact he or his representative was never offered an opportunity of hearing by the Tribunal etc. All what is stated in ground (D) of the W.P(C) is that before passing Ext.P-1 order, the 1st respondent-Tribunal should have heard the petitioner and that only a report was called for, which is evident from Ext.P-1 order and the same is illegal and improper. Sri.R.B.Rajesh, learned counsel appearing for the 3rd respondent would submit on the basis of instructions from his party that both sides were permitted to make their respective submissions and sufficient opportunity was given to both sides and it is only thereafter, the 1st respondent Tribunal has passed the considered order as per Ext.P-1. A reading of Ext.P-1 would make it clear that the petitioner’s representative (his wife), Smt.Sajeela, was present in the hearing before the 1st respondent Tribunal as the authorized officer of the petitioner. It appears that the petitioner has been working abroad and therefore, it is in this context that the petitioner would have authorized his wife to appear before the Tribunal. Sufficient opportunity has been given to both sides before the Tribunal has passed the order as Ext.P-1. Therefore, this Court is not in a position to countenance the present plea made by the petitioner that Ext.P-1 order is liable to be interfered with by exercise of the prerogative powers conferred under Article 226 of the Constitution of India.

7. However, Sri.P.Anoop Mulavana, learned counsel appearing for the petitioner would submit that the meagre income that is earned by the petitioner from his employment in Saudi Arabia is hardly 1200 Saudi Riyals which comes hardly appearing to Rs.22,000/- and that it is extremely disproportionate on the part of the Tribunal to have ordered and burdened the petitioner to pay monthly maintenance of Rs.5,000/-, as he finds it extremely difficult to maintain himself and his wife and other family members. To a specific query raised by this Court as to whether the petitioner had raised such a plea about this limited income before the 1st respondent-Tribunal, the petitioner has stated that he had not taken up that factual plea before the Tribunal. If that be so, it is not right and proper for this Court to entertain such a new plea that is put forward for the first time before this Court and not before the original Tribunal. Therefore, interference under Article 226 of the Constitution of India may not be justified and proper, in the light of such factual aspects. However, learned counsel appearing for the petitioner would point out that the 3rd respondent (mother) has also separately filed an application for maintenance before the Family Court, Nedumangad, Thiruvananthapuram district as M.C.No.173/2018 claiming monthly maintenance amount of Rs.15,000/-. Learned counsel appearing for the 3rd respondent submits that he has no specific instruction on that regard and as such a plea has not been taken up either before the Tribunal or before this Court in this W.P(C), he is unable to defend as against such a new factual plea urged for the first time now orally before this Court. However, this Court would venture to observe that if as a matter of fact the 3rd respondent has filed any application for maintenance before any other forum like the Family Court etc., such court should duly take note of the fact that the petitioner has already been burdened to pay a monthly maintenance of Rs.5,000/- as per the present impugned Ext.P-1 order issued by the 1st respondent-Tribunal under the provisions of the abovesaid Act.

8. In the light of these aspects, this Court is of the view that no interference is called for and the prayers in the writ petition are only to be rejected.

In that view of the matter, it is ordered that the aforecaptioned Writ Petition (Civil) will stand dismissed.
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