High Court of KeralaSingle Judge2023-03-20Writ petition disposed of; Ext.P8 quashed; peti...

Rahees @ Raheesmonk.K. v. Sub Collector & Presiding Officer, Maintenance Tribunal, Perintalmanna, Office of the Revenue Divisional Officer, Perintalmanna, Malappuram District; and Kutti Hassan

Case / Petition Number:WP(C) No. 22778 of 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: RAJA VIJAYARAGHAVAN V.
Judgment Date: 2023-03-20
Court Decision / Holding: The writ petition is disposed of by quashing Ext.P8. The petitioner cannot be dispossessed from the 40 cents of property settled in his name. If the senior citizen is aggrieved, he may approach the District Magistrate or Maintenance Tribunal, which authority shall consider his grievance and pass appropriate orders in accordance with law. The District Magistrate is directed to ensure compliance with Sub-rule (2) and (3) of Rule 19 of the Kerala Maintenance and Welfare of Senior Citizens Rules, 2007, to enable the senior citizen to spend the rest of his life with peace, security, and dignity.
Final Disposition: Writ petition disposed of; Ext.P8 quashed; petitioner not to be dispossessed from the 40 cents property; DM or Tribunal to decide or pass appropriate orders in accordance with law; DM to ensure protection of senior citizen’s rights under Rule 19(2)-(3).

Parties to the Case

Appellants / Petitioners

Rahees @ Raheesmonk.K.

Respondents

The Sub Collector & Presiding Officer, Maintenance Tribunal, Perintalmanna, Office of the Revenue Divisional Officer, Perintalmanna, Malappuram District
Kutti Hassan

Legal Representation & Advocates

Counsels for Petitioners

• P. Venugopal
• Sebis Raj
• Remithav R.
• Srilakshmi T.S.

Counsels for Respondents

• Samsudin Panolan
• Milan Rachel Mathew
• Liraa A.B.
• Smt. Deepa V., Government Pleader

Case Synopsis & Summary

The petitioner Rahees, son of a person with disability and aged over 60, challenges Ext.P8, an eviction order passed by the Maintenance Tribunal under the Kerala Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The background facts show that a local level committee under Section 14 of the National Trust Act, 1999 appointed the 2nd respondent as the legal guardian of the petitioner’s father. The guardian approached the Maintenance Tribunal, which issued an order directing the petitioner to vacate the residential home owned by the father, while allowing visitation and restricting obstruction. The petitioner contends that eviction is not within the Tribunal’s remit and relies on Thoppil Anto v. Glanson T.A and others (2020) and C.K. Vasu v. Circle Inspector of Police and Others (2012) to argue that the Act provides for maintenance, not eviction. The respondents counter that Thoppil Anto supports the notion that the District Magistrate may pass or authorize eviction orders under Rule 19 of the Kerala Maintenance and Welfare of Senior Citizens Rules, 2007. The High Court holds that the Tribunal cannot order eviction (citing C.K. Vasu), but acknowledges Thoppil Anto’s remark that the DM or authorized Tribunal may decide in such matters. Consequently, Ext.P8 is quashed; the petitioner cannot be dispossessed from the 40 cents of property settled in his name, and the DM or Tribunal should pass appropriate orders consistent with law to protect the senior citizen’s right to live with dignity.

Provisions of Law Cited

National Trust Act, 1999, Section 14Kerala Maintenance and Welfare of Parents and Senior Citizens Act, 2007Kerala Maintenance and Welfare of Senior Citizens Rules, 2007, Rule 19 (including sub-rules 2 and 3)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner’s counsel contends that Ext.P8 eviction order by the Maintenance Tribunal cannot be sustained under the statutory framework. The argument rests on established authorities such as C.K. Vasu (2012) and Thoppil Anto v. Glanson T.A and others (2020), which collectively indicate that the Tribunal’s powers under the Kerala Maintenance and Welfare of Senior Citizens Act, 2007 are primarily to secure maintenance rather than eviction. It is urged that eviction, if at all contemplated, lies beyond the Tribunal’s remit and must be dealt with by the District Magistrate under Rule 19 of the Kerala Maintenance and Welfare of Senior Citizens Rules, 2007. The petitioner asserts that shelter and dignity of the senior citizen cannot be sacrificed for the sake of eviction, and the remedy lies within appropriate protective orders rather than dispossession.

Contentions of Respondents

The respondents’ counsel relies on Thoppil Anto to argue that the enactment confers broad powers on the District Magistrate to pass appropriate orders, or to authorize the Maintenance Tribunal to decide matters under Rule 19 of the Kerala Maintenance and Welfare of Senior Citizens Rules, 2007, to enable a senior citizen to live with respect, security, and dignity. They contend that eviction may be a permissible remedy under the statutory framework when warranted, and that the Tribunal’s authority in maintenance matters can be extended to protective orders by transfer to the DM or by authorization to decide eviction matters when necessary. They emphasise the Act’s protective intent and urge upholding order Ext.P8 under proper legal channels.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Thoppil Anto v. Glanson T.A and others	2020 (1) KHC 757	Partly Overruled / Limited	Used to acknowledge that while eviction might not be maintainable before the Tribunal, the District Magistrate or authorized Tribunal may decide certain eviction-related issues under Rule 19.
Thoppil Anto v. Glanson T.A and others	2020 (6) KHC 510	Partly Overruled / Limited	Additional reference supporting the DM/Tribunal pathway for eviction-like relief in limited scope.
C.K. Vasu v. Circle Inspector of Police and Others	2012 SCC Online Kerala 10658	Positive	Court relies on the principle that the Tribunal cannot grant eviction; maintenance focus is warranted and eviction is not within Tribunal’s remit.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 20[TH] DAY OF MARCH 2023 / 29TH PHALGUNA, 1944`** ## **`WP(C) NO. 22778 OF 2022`** ## **`PETITIONER:`** ``` RAHEES@RAHEESMONK.K., AGED33YEARS S/OKALLADAMUHAMMED,PUTHALATHCHALILHOUSE, THAVANOORAMSOMDESOM,KONDOTTYTALUK, MALAPPURAMDISTRICT.PIN:673641. ``` ``` BYADVS. P.VENUGOPAL SEBIS.RAJ REMITHAV.R. SRILAKSHMIT.S. ``` ## **`RESPONDENTS:`** ``` 1THESUBCOLLECTOR&PRESIDINGOFFICER, MAINTENANCETRIBUNAL, PERINTALMANNA,OFFICEOFTHEREVENUEDIVISIONAL OFFICER,PERINTALMANNA,MALAPPURAMDISTRICT, PIN:679322. 2KUTTIHASSAN, AGED69YEARS S/OKALLADAKAMMUKUTTYHAJI,KALLADAHOUSE, KADUNGALLOOR,PULIYAKODE-PO,KUZHIMANNAKONDOTTY TALUK,MALAPPURAMDISTRICT.PIN:679329. BYADVS. Manzoorali V.A.MUHAMMED(K/124/1984) ``` W.P.(C) No.22778 of 2022 2 ``` SAMSUDINPANOLAN MILANRACHELMATHEW(K/001735/2020) LIRAA.B.(K/001251/2021) ``` ``` SMTDEEPAV.GOVERNMENTPLEADER ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFOR ADMISSIONON20.03.2023,THECOURTONTHESAMEDAY DELIVEREDTHEFOLLOWING: ``` W.P.(C) No.22778 of 2022 3 ## **JUDGMENT** Kallada Muhammed, the father of the petitioner, is aged over 60 years. As Kallada Muhammed is a person with disability, based on the application flled by the 2nd respondent, who is his brother, the local level committee constituted under Section 14 of the National Trust Act, 1999, has appointed the 2nd respondent as his legal guardian. The 2nd respondent approached the Maintenance Tribunal constituted under the Kerala Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and filed an application invoking the provisions of the Act. Ext.P8 order has been issued by the Tribunal ordering the petitioner to vacate from the residential home owned by the father. However, permission was granted to the petitioner to visit his father and the 2nd respondent was ordered not to cause any obstruction. The aforesaid order is under challenge. 2. Sri. P. Venugopal, the learned counsel appearing for the petitioner, submits that the order issued by the Maintenance Tribunal directing the petitioner to vacate the residential building cannot be W.P.(C) No.22778 of 2022 4 sustained under law. Reliance is placed on the judgment rendered by a learned Single Judge of this Court in **Thoppil Anto v. Glanson T.A and others** [2020 (1) KHC 757] and **Thoppil Anto v. Glanson T.A and others** [2020 (6) KHC 510] to substantiate his contention. Reliance is also placed on the judgment in **C.K Vasu v. Circle Inspector of Police and Others** [2012 SCC Online Kerala 10658], and it is argued that the Tribunal constituted under the Act can only pass an order of maintenance against the Children or the relatives as the case may be and that the Act would not empower the Tribunal to order eviction. 3. In response, Sri. Shamsudhin, the learned counsel appearing for the 2nd respondent, would rely on **Thoppil Anto** (supra), and it is argued that the enactment has conferred powers on the District Magistrate to pass appropriate orders to enable a senior citizen to live with respect, security, and dignity. According to the learned counsel, it was well within the powers of the Tribunal to make over the matter to the District Magistrate to pass an order under Rule 19 of the Kerala Maintenance and Welfare of Senior Citizens Rules, 2007. 4. I have considered the submissions advanced. On a perusal of W.P.(C) No.22778 of 2022 5 the order impugned, I find that the Maintenance Tribunal, by invoking the powers under the Act as well as the Rules, has ordered the eviction of the petitioner from the residential home. As held by this Court in **C.K.Vasu** (supra), the Tribunal constituted under the Act can only pass an order for maintenance of a senior citizen or a parent unable to maintain himself if the Tribunal is satisfied that there was neglect or refusal on the part of the children or relative to maintain him. The Act does not empower the Tribunal constituted under the Act to grant an order of eviction. In that view of the matter, the impugned order cannot be sustained, and the same is liable to be quashed. However, this Court, while disposing of **Thoppil Anto** (supra), had occasion to observe that notwithstanding the fact that the application for eviction may not be maintainable before the Maintenance Tribunal, the right of the senior citizen would not be foreclosed and order in the nature of Ext.P8 can be passed by the District Magistrate concerned or the District Magistrate may even authorize the Maintenance Tribunal to decide the matter itself. In that view of the matter, I am of the considered opinion that this Writ Petition can be disposed of by ordering as under: W.P.(C) No.22778 of 2022 6 a) Ext.P8 order issued by the Maintenance Tribunal will stand quashed. b) If the petitioner is residing in the 40 cents of property settled in his name by his father on the strength of the settlement deed executed in the family, he shall not be dispossessed. c) If the senior citizen is in any way aggrieved, it would be open to him to approach the District Magistrate or the Maintenance Tribunal, which authority shall consider his grievance and pass appropriate orders in accordance with the law. d) The District Magistrate is also directed to ensure that no efforts are spared to perform the duties and exercise the powers mentioned in Sub-rule (2) and (3) of Rule 19 of Kerala Maintenance and Welfare of Senior Citizens Rules so that Kallad Muhammed is able to spend the rest of his life with peace, security and dignity. Sd/- ## **RAJA VIJAYARAGHAVAN V, JUDGE** ``` IAP ``` W.P.(C) No.22778 of 2022 7 ## **`APPENDIX OF WP(C) 22778/2022`** ``` PETITIONER’SEXHIBITS: ``` |`Exhibit `|`P1`|`TRUE COPY OF THE CERTIFICATE OF`| |---|---|---| |||`APPOINTMENT OF LEGAL GUARDIAN ISSUED BY`| |||`THE DISTRICT COLLECTOR IN FAVOR OF THE`| |||`SECOND RESPONDENT.`| |`Exhibit `|`P2`|`TRUE COPY OF THE REPRESENTATION DATED`| |||`29-02-2016 SUBMITTED BY THE PETITIONER TO`| |||`THE DISTRICT COLLECTOR, MALAPPURAM.`| |`Exhibit `|`P3`|`TRUE COPY OF THE PETITION DATED`| |||`05-12-2017 SUBMITTED BY THE PETITIONER TO`| |||`THE SUB INSPECTOR OF POLICE, AREAKODE.`| |`Exhibit `|`P4`|`TRUE COPY OF THE COMPLAINT DATED`| |||`27-01-2020 SUBMITTED BY THE PETITIONER TO`| |||`THE DISTRICT SOCIAL WELFARE OFFICER,`| |||`MALAPPURAM.`| |`Exhibit `|`P5`|`TRUE COPY OF THE COMPLAINT DATED`| |||`29-01-2022 SUBMITTED BY THE PETITIONER TO`| |||`THE SHO, AREAKODE TOGETHER WITH ITS`| |||`ACKNOWLEDGEMENT.`| |`Exhibit `|`P6`|`TRUE COPY OF THE PRIVATE COMPLAINT`| |||`PREFERRED BY THE PETITIONER BEFORE THE`| |||`CJM COURT, MANJERI DATED 06-04-2022.`| |`Exhibit `|`P7`|`TRUE COPY (CITIZEN COPY) OF THE FIR VIDE`| |||`CRIME NO.194/2022 REGISTERED BY THE`| W.P.(C) No.22778 of 2022 8 ``` AREAKODEPOLICE. ``` ``` ExhibitP8TRUECOPYOFTHEORDERDATED08-06-2022 PASSEDBYTHEFIRSTRESPONDENT. ``` ``` RESPONDENTS’EXHIBITS: ``` ``` ExhibitR2(a).TruecopyofregisteredwillNo.6/IIIof 1991ofSubRegistrarOfficerArekode. ``` ``` ExhibitR2(b).TruecopyofthepurchasedeedNo. 1973/2001ofSubRegistrarOfficer Arekode ``` ``` ExhibitR2(c).Truecopyofthelandtaxreceiptdated 19-10-2022for80centsoflandinthe nameofMohammed. ``` ``` ExhibitR2(d). ``` ``` Truecopyofthepropertytaxreceipt dated19-05-2022inthenameofMohammed ``` ``` ExhibitR2(e). ``` ``` Truecopyofthecomplaintandits receiptdated24-02-2022submittedbefore theSHOArekode ```