Achama Jacob @ Annamma Jacob v. Davis Jacob and Revenue Divisional Officer (Maintenance Tribunal & Sub Division Magistrate), Office of the Revenue Divisional Officer, Kottayam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **WEDNESDAY, THE 22ND DAY OF MAY 2013/1ST JYAISHTA 1935** **WP(C).No. 4882 of 2013 (I) -------------------------------------** **PETITIONER:** **-------------------** **ACHAMA JACOB @ANNAMMA JACOB, AGED 81 YEARS, W/O.CHACKO, THRUTHUMALIL HOUSE, ARPOOKARA VILLAGE, VILLOONNI.P.O- 686 008, KOTTAYAM DISTRICT.** **BY ADVS.SRI.PIUS C.MUNDADAN, SMT.ANJU. D.** **RESPONDENTS:** **------------------------** **1. DAVIS JACOB, S/O.CAHCKO, AGED 44 YEARS, THRUTHUMALIL HOUSE, ARPOOKARA VILLAGE, VILLOONNI.P.O - 686 008, KOTTAYAM DISTRICT.** **2. REVENUE DIVISIONAL OFFICER (MAINTENANCE TRIBUNAL & SUB DIVISIONAL MAGISTRATE), OFFICE OF THE REVENUE DIVISIONAL OFFICER, KOTTAYAM-686 001.** **R1 BY ADVS. SRI.P.N.RAMAKRISHNAN NAIR, SRI.P.VISWANATHAN, R2 BY SR. GOVERNMENT PLEADER SMT. M.J. RAJASREE.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.4882/2013-I:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1TRUE COPY OF THE RELEASE DEED NO.247/2011 OF S R O ETTUMANOOR, DATED 22.1.2011.** - **P2TRUE COPY OF THE SETTLEMENT DEED NO.256/2011 DATED 22/1/2011 OF S R O, ETTUMANOOR.** - **P3TRUE COPY OF THE COMPLAINT DATED 7.2.2012 FILED BY SIBY JACOB AND ANNAKUTTY KURUVILLA BEFORE THE DY.S.P., KOTTAYAM.** - **P4TRUE COPY OF THE F I R IN CRIME NO.112/2012 DATED 10.2.2012 OF GANDHI NAGAR POLICE STATION, KOTTAYAM.** - **P5TRUE COPY OF THE DEED OF CANCELLATION OF SETTLEMENT NO.676/2012 OF S R O ETTUMANOOR DATED 17.2.2012.** - **P6TRUE COPY OF THE APPLICATION DATED 21.2.2012 SUBMITTED BEFORE THE 2ND RESPONDENT.** - **P7TRUE COPY OF THE COMPLAINT DATED 24.3.2012 SUBMITTED BEFORE THE JUDICAL FIRST CLASS MAGISTRATE COURT, ETTUMANOOR.** - **P8TRUE COPY OF THE DEPOSITION OF THE PETITIONER TAKEN ON 4.7.2012 BY THE 2ND RESPONDENT.** - **P9TRUE COPY OF THE ORDER NO.E-1041/12 DATED 27.12.2012 PASSED BY THE 2ND RESPONDENT.** - **P10COPY OF THE OBJECTION DTD 31/03/2012 FILED BY R.1. BEFORE THE TRIBUNAL UNDER MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT & REVENUE DIVISIONAL OFFICER (RDO).** - **P11COPY OF THE ORAL EVIDENCE OF THE R.1. BEFORE THE R.2.** - **P12COPY OF THE ORAL EVIDENCE OF JOLLYMON, THE AUTORICKSHAW DRIVER WHO WAS EXAMINED ON THE SIDE OF THE R.1.** - **P13COPY OF THE ORAL EVIDENCE OF AMBILI, MAID SERVANT WHO WAS EXAMINED ON THE SIDE OF THE THE R.1.** - **P14COPY OF THE MEDICAL BILL DTD. 09/10/2012 ISSUED TO THE PETITIONER FROM S.H. MEDICAL CENTRE.** - **P14.A- COPY OF THE MEDICAL BILL DTD. 17/10/2012 ISSUED TO THE PETITIONER FROM S.H. MEDICAL CENTRE.** - **P14.B- COPY OF THE MEDICAL BILL DTD. 09/11/2012 ISSUED TO THE PETITIONER FROM S.H. MEDICAL CENTRE.** **Prv.** ## **W.P.(C).NO.4882/2013-I:** |**P14.C-**|**COPY OF THE MEDICAL BILL DTD. 06/12/2012 ISSUED TO THE**| |---|---| ||**PETITIONER FROM S.H. MEDICAL CENTRE.**| |**P14.D-**|**COPY OF THE MEDICAL BILL DTD. 15/12/2012 ISSUED TO THE**| ||**PETITIONER FROM S.H. MEDICAL CENTRE.**| |**P14.E-**|**COPY OF THE MEDICAL BILL DTD. 03/01/2013 ISSUED TO THE**| ||**PETITIONER FROM S.H. MEDICAL CENTRE.**| |**P15-**|**COPY OF THE DISCHARGE CARD ISSUED BY S.H. MEDICAL CENTRE.**| |**P16-**|**COPY OF THE MEDICAL BILL DTD. 17/01/2013 ISSUED BY S.H.**| ||**MEDICAL CENTRE.**| |**P16.A-**|**COPY OF THE MEDICAL BILL DTD. 18/01/2013 ISSUED BY S.H.**| ||**MEDICAL CENTRE.**| |**P16.B-**|**COPY OF THE MEDICAL BILL DTD. 19/01/2013 ISSUED BY S.H.**| ||**MEDICAL CENTRE.**| |**P16.C-**|**COPY OF THE MEDICAL BILL DTD. 21/01/2013 ISSUED BY S.H.**| ||**MEDICAL CENTRE.**| |**P16.D-**|**COPY OF THE MEDICAL BILL DTD. 22/01/2013 ISSUED BY S.H.**| ||**MEDICAL CENTRE.**| |**P16.E-**|**COPY OF THE I.P BILL DTD. 22/01/2013 ISSUED BY S.H. MEDICAL**| ||**CENTRE.**| |**P17-**|**COPY OF THE MEDICAL BILL DTD. 05/02/2013 ISSUED BY S.H.**| ||**MEDICAL CENTRE.**| |**P17.A:**|**COPY OF THE MEDICAL BILL DTD. 27/02/2013 ISSUED BY S.H.**| ||**MEDICAL CENTRE.**| |**P18-**|**COPIES OF THE EXT.B2 MEDICAL BILLS PRODUCED BEFORE THE R.2.**| ## **RESPONDENTS' EXHIBIT:** **EXT.R1.A: COPY OF THE PROCEEDINGS BEFORE THE R.2. ISSUED UNDER THE RIGHT TO INFORMATION ACT.** ## **//TRUE COPY//** **P.S. TO JUDGE.** **Prv.** ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. ## **W.P.(C)No.4882 OF 2013** ......................................................................... **Dated this the 22[nd] May, 2013** ## **J U D G M E N T** Ext..P9 order passed by the second respondent/competent authority constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is under challenge in this writ petition. 2. The petitioner is an octogenarian, who executed Ext. P2 settlement deed in favour of the first respondent , who is none other than her son, as early as on 22.01.2011 conveying the property specified therein with specific intent to have maintenance and such other requirements to be taken care of by the first respondent. According to the petitioner, the first respondent did not pay any heed to the same, after obtaining the property and failed to meet the obligations as a dutiful son of the petitioner. That apart, it is stated that the first respondent ill treated the petitioner. It is pointed out that there was grievance for other siblings of the first respondent in view of the ill treatment and such other atrocious act, being pursued by the first respondent as reflected from Ext.P3 complaint and Ext.P4 **2** ## **W.P.(C)No.4882 OF 2013** charge sheet in respect of the crime registered by the police. In view of the turn of events there was no other alternative for the petitioner, but to have Ext.P2 deed cancelled . It was accordingly Ext.P5 cancellation deed was executed and registered. Thereafter, the petitioner approached the second respondent by filing Ext.P6 application for appropriate reliefs, in accordance with the 'Act' as aforesaid. The matter was finalised after hearing the parties concerned, leading to Ext. P9 order, whereby the relief sought for was declined, observing that the pleadings and prayers were not liable to be entertained in view of the evidence tendered . The writ petition has been filed challenging Ext.P9 on many a ground. 3. Separate counter affidavits have been filed by the respondents 1 and 2. The matter was heard in detail on different dates including the final hearing held today. 4. The learned Counsel for the petitioner submits that the impugned order is not liable to be sustained at all. It is stated that the concerned authority, who heard the matter was another RDO, who finally heard the case on 27.11.2012 and adjourned **3** ## **W.P.(C)No.4882 OF 2013** the same to 30.11.2012 for passing orders. On 30.11.2012, no orders were passed and the said officer retired from the service on attaining the age of superannuation. Another officer took charge of the office in the middle of December, 2012, who has passed the impugned order on **27.12.2012** much contrary to the actual acts and figures and the evidence on record. The order is perverse in all respects, submits the learned Counsel. 5. Referring to the Chief Examination and Cross Examination, as reflected from Ext.P8 (deposition of the petitioner) and Ext.P11 (deposition of the first respondent), the learned Counsel for the petitioner seeks to assert that the lapses on the part of the first respondent have been clearly conceded and that the ill- treatment and the neglect to take care of the petitioner (in consideration of Ext.P2) is very much discernible from the said depositions. It is stated that various aspects, particularly the evidence brought on record have not been looked into; whereas irrelevant observations have been made by the second respondent while passing Ext.P9. It is stated that the very purpose of the 'Act' is defeated. In response to the **4** ## **W.P.(C)No.4882 OF 2013** contentions of the first respondent as to the availability of alternative remedy by way of appeal, it is stated that statutory remedy is not a bar for entertaining the writ petition. Reliance is sought to be placed on the decision of the Constitution Bench of the Supreme Court in **AIR 1961 SC 1506** [ _**A.V. Venkateswaran vs. R.S. Wadhawani).**_ Some other decisions are also cited across the Bar, viz., **2011 (1) KHC 502** ( _**State of Kerala vs Kumari Varma**_ ) ( to which I was also a party) and **2009(2) KLT 552** _**(In Re. Destruction of Public & Private Properties v. State of A.P**_ .) 6. The learned Counsel for the petitioner submits that the power vested upon the second respondent has not been exercised properly and that, in view of the glaring inconsistencies and discrepancies , the order is liable to be intercepted ; more so in view of the law declared by the Apex Court in **AIR 1987 SC 537** ( _**The Comptroller & Auditor General vs. K.S. Jagannathan)**_ (paragraphs 18,19 and 20]. 7. The stand of the second respondent as reflected from the pleadings is that, the matter was finally heard by the **5** ## **W.P.(C)No.4882 OF 2013** predecessor-in-office on 27.11.2012 and it was adjourned to 30.11.2012 for orders. After considering the materials on record , the order was actually prepared and signed by the then officer, as per the relevant proceedings dated 30.11.2012 itself, but the same could not be pronounced in view of the retirement of the officer on that day. Later, it was after assuming charge, that the concerned officer issued Ext.P9 on 27.12.2012, which is nothing but a reproduction of the order already passed by the officer then in office. It is also stated that the order has been passed on the basis of the pleadings and evidence on record and that there is no violation of any of the relevant provisions of law or principles of natural justice. 8. The learned Counsel appearing for the first respondent sought to sustain the impugned order also with reference to the documents particularly, copy of the proceedings sheet produced as Ext.R1(a). It is stated that, there is no substantial variation at all with regard to the contents of the order passed by the concerned officer, as reflected from the proceedings sheet dated 30.11.2012 and the contents of Ext.P9, but for some minor **6** ## **W.P.(C)No.4882 OF 2013** mistakes crept in the course of typing the proceedings. The learned Counsel submits that the petitioner has been instigated by some others to lock horns with the first respondent, leading to the proceedings before the second respondent and that the 'Act' cannot be taken as a tool to wreak vengeance . It is asserted that the first respondent was never accused by the petitioner at any point of time earlier and that, no such instance is disclosed from Exts.P8 and P11 depositions of the petitioner and first respondent respectively. The learned Counsel also seeks to place reliance on some judicial precedents, particularly 2002 (1)KLT 882 ( **Katherine v. Secretary to Governme** nt) and 2011 (2) SCC 782 _**(Kanaiyalal Lalchand Sachdev and others vs. State of Maharashtra and others**_ ). It is also brought to the notice of this Court that, Ext. P5 cancellation deed is the subject matter of litigation between the parties before the Civil Court. 9. On going through the materials on record, this Court is of the prima facie view, that the evidence tendered from the part of the petitioner and the first respondent, as borne by Exts.P8 **7** ## **W.P.(C)No.4882 OF 2013** and P11 depositions, has not been properly appreciated by the second respondent while passing Ext.P9 order; which requires to be re-appreciated and examined further. It is also relevant to note that various aspects pointed out from the part of the petitioner ( such as the pleadings and evidence with regard to the disconnection of the telephone facility to the petitioner by the first respondent) have not been dealt with or discussed by the second respondent. The adverse consequences stated as suffered by the petitioner in connection with the day to day life, because of the course pursued by the first respondent as brought out from the evidence, is not seen properly weighed by the second respondent. As such, this Court finds that the matter requires to be reconsidered by the second respondent with proper application of mind and untrammeled by anything contained in Ext.P9 order dated 27.12.2012. 10. In the above facts and circumstances, Ext.P9 order is set aside. The matter is remitted back to the second respondent with a direction to re-appreciate the evidence and pass a speaking order in the light of the specific pleadings and **8** ## **W.P.(C)No.4882 OF 2013** evidence on record, after hearing, which shall be done at the earliest, at any rate, within 'one month' from the date of receipt of a copy of the judgment. It is made clear that this Court has not decided anything on merits and the reference made to the contents of the Exts.P8 and P11 depositions is only to the extent, so as to cause the impugned order to be set aside and to have it reconsidered. The writ petition is allowed to the said extent. No cost. ## **P.R.RAMACHANDRA MENON JUDGE** lk