Rajesh R. v. Revenue Divisional Officer and Maintenance and Welfare of Parents and Senior Citizens Tribunal, Chengannur and Sarojini

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY,THE 26TH DAY OF SEPTEMBER 2018 / 4TH ASWINA, 1940** ## **WP(C).No. 28058 of 2018** ## **PETITIONER/S:** **RAJESH R., AGED 38 YEARS, S/o Late Rajan, RESIDING AT VATHIYUDE PADEETTATHIL, RAJESH BHAVANAM, EREZHA THEKKU MURI, PERUNGALA VILLAGE, CHETTIKULANGARA P.O., MAVELIKARA, ALAPPUZHA-690106.** **BY ADV. NIRMAL V NAIR** ## **RESPONDENT/S:** **1 THE REVENUE DIVISIONAL OFFICER AND MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS TRIBUNAL, CHENGANNUR SUB DIVISION, O/O RDO, CHENGANNUR, MAVELIKARA-KOZHENCHERY ROAD - SH 10, CHENGANNUR, ALAPPUZHA-689121. 2 SAROJINI, W/O.LATE RAJAN, RESIDING AT VATHIYUDE PADEETTATHIL, RAJESH BHAVANAM, EREZHA THEKKU MURI, PERUNGALA VILLAGE, CHETTIKULANGARA P.O., MAVELIKARA, ALAPPUZHA 690106** ## **OTHER PRESENT:** **SMT.A.C.VIDHYA, GOVT.PLEADER FOR R1** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C)No.28058 of 2018 2 ## **ALEXANDER THOMAS, J.** **============================= W.P(C)No.28058 of 2018** **============================= Dated this the 26[th] day of September, 2018** ## **JUDGMENT** **The grievance of the petitioner is in relation to the impugned decision rendered by the Tribunal constituted under the provisions of Maintenance and Welfare of Parents and Senior Citizens Act, 2007, as per Ext.P-1 order dated 18.07.2018, whereby the petitioner, his wife and child has been ordered to be evicted from the residential house in question, on the application filed by the 2[nd] respondent (mother).** **2. The prayers in this Writ Petition (Civil)** ## **are as follows:** - _**''i. To issue a writ in the nature of certiorari or any other appropriate writ order or direction and to quash Exhibit P1;**_ - _**ii. Grant such other reliefs as may be prayed for and as the court may deem fit to grant and**_ _**iii. Grant the cost of the writ petition.''**_ **3. Heard Sri.Nirmal V.Nair, learned counsel** W.P(C)No.28058 of 2018 3 **appearing for the petitioner and Smt.A.C.Vidhya, learned Government Pleader appearing for R1. Though registered speed notice sent to contesting respondent No.2 has been duly served, there is no appearance for that party.** **3. The 2[nd] respondent had filed an application before the Tribunal presumably under the provisions contained in Secs.4 & 5 of the abovesaid Act alleging that the petitioner and his wife are victimising and harassing her and that orders should be passed to evict the petitioner and his family to ensure peaceful living of the 2[nd] respondent in the residential house in question. The said prayer has now been allowed as per the impugned Ext.P-1 order dated 18.07.2018 whereby the petitioner, his wife and child has been ordered to be evicted from the residential house in question. From a perusal of the impugned Ext.P-1 order, it can be seen that the Tribunal had called for a report from the Village Officer, who reported that the relationship between the 2[nd]** W.P(C)No.28058 of 2018 4 **respondent herein (mother) on the one hand and the petitioner and his spouse etc., is not cordial and that many times 2[nd] respondent is forced to sleep outside the house and that various criminal cases has been registered against the petitioner and that he is engaged in the illegal trade of drugs like “ganja”, “hans”, etc. It is the specific contention of the petitioner that a copy of the said report of the Village Officer, Perungala relied on by the Tribunal in Ext.P-1 was never furnished to him and that he was unable to defend himself of the charges therein and that the allegations in the said report of the Village Officer are factually incorrect and wrong. This Court had directed the 1[st] respondent to ensure that the copy of the abovesaid report of the Village Officer be furnished to this Court and also to get specific instructions from the police authorities as to whether any criminal cases have been registered against the petitioner and if so details in that regard. Copy of the said report** W.P(C)No.28058 of 2018 5 **dated 13.03.2018 furnished by the Village Officer, Perungala to the Tribunal has been now made available along with memo dated 10.09.2018 filed by the learned Government Pleader. It is now disclosed to this Court on behalf of the 1[st] respondent that copy of the said report of the Village Officer was never furnished to the petitioner. The learned Government Pleader on instructions from the Kayamkulam police authorities has submitted that no criminal case is registered against the petitioner in that police station. No materials have been made available to the 1[st] respondent to substantiate the allegations raised by the Village Officer against the petitioner that he is indulging in illegal trade of drugs like “ganja”, “hans” etc. For these reasons this Court has no hesitation to hold that there has been patent violation of principal of natural justice in rendering the impugned order as per Ext.P-1. That apart, the petitioner had raised a specific contention on the basis of** W.P(C)No.28058 of 2018 6 **Ext.P-9 title deed that he has ownership rights over the property and the residential house in question and that therefore a direction as in the impugned order cannot be issued to a co-owner to be evicted from the property in question, even by invoking the provisions in the abovesaid Act.** **4. It is further pointed out that R2(mother) had filed an application under the Protection of Women from Domestic Violence Act (D.V Act) as referred to in Ext.P-10 wherein the petitioner and his wife were arrayed as respondents therein and that the said application filed by R2 under the DV Act was dismissed for non-prosecution. Further R2(mother) had filed a complaint before the police authorities concerned alleging that the petitioner had assaulted her and used abusive words and that in C.C.No.66/2015 was instituted before the Judicial First Class Magistrate’s Court-I, Kayamkulam at the instance of the 2[nd] respondent for offences under Sec.294(b) and Sec.323 of the IPC. Further, the petitioner’s wife had filed an** W.P(C)No.28058 of 2018 7 **application under the DV Act as M.C.No.20/2015 before the abovesaid Magistrate’s Court, Kayamkulam alleging that the 2[nd] respondent herein has committed violent acts against her etc. and that the residential house in question is her share household as her husband has also rights in that property etc. It appears that the settlement was rival before the parties, wherein the criminal proceedings in which R2 herein was the defacto complainant, was compounded as can be seen from Ext.P-12 and the domestic violence proceedings** **initiated by the petitioner’s wife in M.C.No.20/2015 was closed as not pressed. The petitioner’s wife had filed a complaint before the police station concerned alleging that R2 herein and some of the other siblings of the petitioner and their spouses had assaulted the petitioner’s wife which led to the institution of C.C.No.1477/2016 on the file of the abovesaid Magistrate’s Court, Kayamkulam. Therein, it is further seen from Ext.P15 that final report/charge** W.P(C)No.28058 of 2018 8 **sheet has been filed by the police officers concerned implicating R2 herein as accused. Being aggrieved by the exclusion of the proceedings as against the other co-accused, the petitioner’s wife has filed a protest complaint in that regard as per Crl.M.P.No.23732/2015 on the file of the abovesaid Magistrate’s Court, as can be seen from Ext.P-16 proceedings. In the light of these aspects, the petitioner’s counsel would urge that since the petitioner is having co-ownership rights over the residential house in question, it is the shared household of his wife and that the present order passed by the Tribunal to evict not only the petitioner but also his wife and child also from the said property is highly illegal or** _**ultra vires**_ **etc. From a reading of the impugned order, it is seen that none of the abovesaid aspects are seen duly considered by the Tribunal. In that view of the matter, the impugned order as per Ext.P-1 will stand set aside and the application of the 2[nd] respondent herein will stand remitted to the** W.P(C)No.28058 of 2018 9 **Tribunal for consideration afresh. Since the rival parties are mother and son, this Court would order that the Tribunal should ensure that a sincere approach be made to seek settlement of disputes through mediatory efforts and the parties should be initially referred to the nearest Mediation Centre, for settlement of their disputes. If the mediation process is successful,** **then the Tribunal will dispose of the matter on the basis of the terms and conditions of the Mediation Settlement Agreement, with the consent of the parties concerned. In case, if the mediation process is not successful, then the matter will have to be decided on merits. However, the petitioner will ensure that no harassment or victimisation is caused to the 2[nd] respondent in any manner. In that regard it is ordered that the Tribunal will ensure that the District Social Welfare Officer of the area concerned visits the residential house in question once in 3 weeks to ascertain whether the** W.P(C)No.28058 of 2018 10 **2[nd] respondent is living peacefully in the residential house, without any harassment and the said official shall file reports before the Tribunal. If any adverse report is filed against the petitioner, then it will be open to the Tribunal to pass appropriate interim orders, after hearing both sides, during the pendency of the main matter. It is further ordered that the report dated 13.03.2018 submitted by the Village Officer, Perungala, should not be relied on or acted upon by the Tribunal, as it is clear that even the competent police authorities have stated that no criminal cases are pending against the petitioner. The specific contention of the petitioner based on Ext.P-9 title deed that he has household ownership rights in question and that therefore the Tribunal cannot order the eviction of the petitioner etc. should be duly adverted to and considered, more so particularly in the light of the dictum laid by the Division Bench of this Court in the case in** _**Janardhanan & another v.**_ W.P(C)No.28058 of 2018 11 _**Maintenance Tribunal Appellate Authority & District Collector, Pathanamthitta and others**_ **reported in 2017 (4) KLT 454 = ILR 2017 (4) Ker. 693 = 2017 (5) KHC 1 etc. Since domestic violence proceedings was earlier initiated by the petitioner’s wife claiming that she has shared household rights in respect of the residential house in question, it will not right and proper to the Tribunal to render a decision on the application of R2, without hearing the version of the petitioner’s wife. Therefore, the Tribunal should ensure that notice should also be issued to the petitioner’s wife and her version and contentions that she has shared households rights of the residential house in question and that therefore it is not right and proper to evict her etc. should also be considered by the Tribunal. The petitioner will furnish the address of his wife, upon which the Tribunal will ensure that notice is sent to that party. The various other contentions that may be advanced by the** W.P(C)No.28058 of 2018 12 **2[nd] respondent and the petitioner should also be duly considered and adverted to by the Tribunal. Opportunity should be given to both sides to file their respective proof affidavits, if they so desire. After granting a reasonable opportunity of being heard to all the parties concerned, the Tribunal should pass orders on the abovesaid application, without much delay, preferably within a period of 3 to 4 months from the date of production of a certified copy of this judgment.** **With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.** **Sd/-** **ALEXANDER THOMAS, JUDGE** **vgd/03.10.18** W.P(C)No.28058 of 2018 13 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE ORDER NO.1/1071/18 DATED 18.07.2018 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P2** **A TRUE COPY OF THE PROCEEDINGS IN M.C.160/2014 ON THE FILES OF JUDICIAL MAGISTRATE OF FIRST CLASS-1, KAYAMKULAM AS OBTAINED FROM DISTRICTS, ECOURTS.GOV.IN.** - **EXHIBIT P3 A TRUE COPY OF THE PROCEEDINGS IN M.C 20/2015 ON THE FILES OF THE JMFC-I, KAYAMKULAM AS OBTAINED FROM DISTRICTS.ECOURTS.GOV.IN.** **EXHIBIT P4 A TRUE COPY OF THE PROCEEDING IN C.C.1477/2016 ON THE FILES OF THE JMFC-I, KAYAMKULAM AS OBTAINED FROM DISTRICTS.ECOURTS.GOV.IN.** **EXHIBIT P5 A TRUE COPY OF THE MEDICAL CERTIFICATE DATED 26.03.2018 ISSUED BY DR.JUBY JOHN, M.D., ASSISTANT PROFESSOR, GOVT.T.D. MEDICAL COLLEGE, ALAPPUZHA.** **EXHIBIT P6 A TRUE COPY OF THE OBJECTION DATED NIL FILED BY THE PETITIONER.** **EXHIBIT P7 A TRUE COPY OF THE MEMORANDUM OF APPEAL ALONG WITH AFFIDAVIT FILED BY THE PETITIONER.** - **EXHIBIT P8 A TRUE COPY OF THE RECEIPT OF APPEAL DATED 02.08.2018 ISSUED BY THE OFFICE OF THE DISTRICT COLLECTOR, ALAPPUZHA** W.P(C)No.28058 of 2018 14 ## **EXHIBIT P9** **EXHIBIT P10** **EXHIBIT P11** **EXHIBIT P12** **EXHIBIT P13** **EXHIBIT P14** **EXHIBIT P15** **EXHIBIT P16** **A TRUE COPY OF CERTIFIED COPY OF THE DOCUMENT NO.2504 OF 1973 OF THE BHARANIKKAVU SRO.** - **A TRUE COPY OF THE CERTIFIED COPY OF THE ORDER DATED 30.6.2016 IN M.C.160/2014 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, KAYAMKULAM.** - **A TRUE COPY OF THE CERTIFIED COPY OF THE MEDIATION AGREEMENT IN C.C.666/2015 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, KAYAMKULAM.** - **A TRUE COPY OF THE CERTIFIED COPY OF THE ORDER SHEET IN C.C.666/2015 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, KAYAMKULAM** - **A TRUE COPY OF THE CERTIFIED COPY OF THE ORDER SHEET IN M.C.20/2015 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, KAYAMKULAM.** - **A TRUE COPY OF THE FIR IN CRIME NO.618/2015 OF THE KAYAMKULAM POLICE STATION.** - **A TRUE COPY OF THE FINAL REPORT IN C.C.1477/2016 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, KAYAMKULAM.** **A TRUE COPY OF THE CERTIFIED COPY OF THE ORDER SHEET IN C.C.1477/2016 ON THE FILES OF JUDICIAL MAGISTRATE OF FIRST CLASS, KAYAMKULAM.**