Viditha M.P. and Sunil K.L. v. Usha and The Presiding Officer, Maintenance Tribunal & Sub Collector, Thalassery

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE MONDAY, THE 29TH DAY OF JANUARY 2018 / 9TH MAGHA, 1939** **WP(C).No. 7190 of 2017** **PETITIONER(S)/ -------------** **1 VIDITHA M.P., AGED 48 YEARS, W/O.SUNIL K.L.,"SREEDIVYA", NEAR GURUMADAM, KURUMATHUR, MUYYAM POST, TALIPARAMBA, KANNUR DISTRICT.** **2 SUNIL K.L., "SREEDIVYA", NEAR GURUMADAM, KURUMATHUR, MUYYAM POST, TALIPARAMBA, KANNUR DISTRICT.** **BY ADVS.SRI.M.SASINDRAN SRI.V.VENUGOPAL SRI.S.JAYANT** **RESPONDENT(S)/:** **-------------** **1. MAKKUNI PUTHIYAVALAPPIL USHA, W/O.LATE GOPALAKRISHNAN NAMBIAR, SREEDIVYA, NEAR GURUMADAM, KURUMATHUR, MUYYAM POST, TALIPARAMBA, KANNUR DISTRICT-670001.** **2. THE PRESIDING OFFICER, MAINTENANCE TRIBUNAL & SUB COLLECTOR, THALASSERY, THALASSERY, KANNUR DISTRICT-670 101.** **R1 BY ADV. SRI.R.SURENDRAN** **R2 BY SENIOR GOVERNMENT PLEADER SRI.G.GOPINATHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **TS** ## **WP(C).No. 7190 of 2017 (W) --------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** **EXHIBIT P1 A TRUE COPY OF THE PETITION FILED BY THE FIRST RESPONDENT BEFORE THE TRIBUNAL MCC 83/16 EXHIBIT P2 A TRUE COPY OF THE PLAINT IN O.S.NO.553/2016 OF THE MUNSIFF'S COURT, TALIPARAMBA EXHIBIT P3 A TRUE COPY OF THE PLAINT IN O.S.NO.416/2016 OF THE MUNSIFF'S COURT, TALIPARAMBA EXHIBIT P4 A TRUE COPY OF THE PETITION FILED BY THE FIRST RESPONDENT BEFORE THE JFCM TALIPARAMBA UNDER SECTION 12 OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT EXHIBIT P5 A TRUE COPY OF THE NOTICE ISSUED BY THE TRIBUNAL DATED 13.1.2017 TO THE PETITIONERS EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 2.2.2017 ISSUED BY THE 2ND RESPONDENT EXHIBIT P7 A TRUE COPY OF THE JUDGMENT IN W.P.(C)NO.16381/2016 DATED 16.6.2016** **RESPONDENT(S)' EXHIBITS -NIL** **-----------------------------** **/TRUE COPY/** **PS TO JUDGE** **TS** ## **A. MUHAMED MUSTAQUE, J.** ......................................... W.P.(C).No.7190 of 2017 .......................................... Dated this the 29[th] day of January, 2018. ## **JUDGMENT** The petitioners are husband and wife. The 1[st] petitioner now appears to be no more. Since the issue to be decided is the validity of an order passed by the Maintenance Tribunal, that can be decided even without the legal heirs in the party array as cause of action still survives with the 2[nd] petitioner. 2. The 1[st] respondent is the maternal sister of the 1[st] petitioner. She is a widow. She owns a residential building. She permitted the petitioners to reside in the house along with her since she was staying alone. The relationship thereafter strained. The petitioners approached the Munsiff Court, Thaliparamba as they apprehended eviction at the instance of the 1[st] respondent. The suit was for injunction. In that suit, in paragraph 3 it is stated that, the petitioners were asked to reside with the 1[st] respondent to take care of her and also to protect her. It is alleged in the suit filed by the petitioners that the 1[st] defendant in turn of taking care of, promissed to execute a 'Will' in respect of house in favour of the 1[st] petitioner. It is also stated that there was an oral understanding to pay a rent of Rs.3,000/- to the 1[st] respondent. However, admittedly no rent receipt was issued. Apprehending forcible eviction, the petitioners approached the civil 2 W.P.(C).No.7190 of 2017 court for injunction. No injunction was granted. The 1[st] respondent also filed a civil suit seeking a direction to the petitioners to vacate the building. 3. Pending suits as above, the 1[st] respondent approached the Maintenance Tribunal seeking a direction to vacate the building by mandatory injunction. 4. Taking note of the various issues in the matter, the Tribunal by an interim order directed the petitioners to pay a sum of Rs.10,000/- as allowance. This interim order is under challenge. 5. The petitioners relying upon a Division Bench decision of this Court in _**Janardhanan and Another v. Maintenance Tribunal Appellate Authority & District Collector,**_ _**Pathanamthitta and Others**_ (2017 (5) KHC 1), argued that when there is a civil dispute with regard to the property, that dispute cannot be resolved only through the process of the Maintenance Tribunal. The learned counsel particularly drawn my attention to the facts involved in that case. It is highlighted by the learned counsel that, that was a dispute over a piece of property between the mother and the daughter wherein the mother claimed exclusive right over the property and the daughter also claimed co-ownership along with the mother. Therefore, according to the counsel for the petitioners, the petitioners are the tenants and therefore the Maintenance Tribunal cannot entertain such 3 W.P.(C).No.7190 of 2017 petition from the 1[st] respondent. 6. It is to be noted, what is called in question is the interim order passed by the Tribunal. The larger issue now raised by the parties is yet to be considered by the Tribunal. It would be premature for this Court to deal with the maintainability of the application. As seen from the pleadings of the petitioners before the civil court itself, the petitioners were permitted to reside along with the 1[st] respondent to take care of her and therefore, this Court cannot hold that the Tribunal lacks jurisdiction. The case set up by the petitioners that they are tenants will have to be considered by the Tribunal with respect to the bonafide of such plea raised by them. The claim of tenancy lacks any bonafides, certainly that can also be taken note of by the Maintenance Tribunal. It is only when there is a bonafide dispute regarding the claim of tenancy, jurisdiction of the Tribunal will be ousted. Anyhow, these are all matters to be considered by the Tribunal after adverting to the contentions of the parties. This Court need not interfere with the process at this stage. 7. The question is whether the Tribunal is justified in awarding Rs.10,000/-. Admittedly, the petitioners now enjoying the residential building. The 1[st] respondent now stated to be residing in an old age home at Taliparamba. Even according to the case of the petitioners, they are liable to pay a sum of Rs.3,000/-. Taking 4 W.P.(C).No.7190 of 2017 note of the fact that the petitioners are enjoying the property of the 1[st] respondent, this Court finds that the present amount ordered cannot be said to be an exorbitant. The question is whether the Maintenance Tribunal can pass such an order. It is to be noted that the Maintenance Tribunal has power to provide welfare measures to the senior citizens as referred under Section 2(k). Though the petitioners are not liable to pay maintenance, certainly the petitioners' obligation cannot be ruled out in the light of Section 2(k) read with Rule 19 (2) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. It is appropriate to refer Section 2(k) which reads as follows: _“Welfare” means provision for food, health care, recreation centres and other amenities necessary for the senior citizens._ 8. Rule 19(2) states as follows: _(2) “It shall be the duty of the District Magistrate to:-_ _(i) ensure that life and property of senior citizens of the district are protected and they are able to live with security and dignity:_ _(ii) oversee and monitor the work of Maintenance Tribunals and Maintenance Officers of the district with a view to ensuring timely and fair disposal of applications for maintenance, and execution of Tribunal's orders;_ _(iii) oversee and monitor the working of old age homes in the district so as to ensure that they conform to the_ 5 W.P.(C).No.7190 of 2017 _standards laid down in these rules, and any other guidelines and orders of the State Government;_ _(iv) ensure regular and wide publicity of the provisions of the Act, and Central and State Governments' programmes for the welfare of senior citizens;_ _(v) encourage and co-ordinate with Panchayats, Municipalities, Nehru Yuva Kendras, Educational Institutions especially their National Service Scheme Units, Organizations, Specialists, Experts, Activists, etc. working in the district so that their resources and efforts are effectively utilized for the welfare of senior citizens of the district”._ Though maintenance obligation is cast on the relatives as defined under Section 2(g) read with Section 4 of the Act, welfare measures can be ordered to be imposed on any person whom the Maintenance Tribunal deem fit to impose. While ordering welfare measures and other measures as referred as above, the duty cast upon the Maintenance Tribunal to consider whether senior citizen is entitled for such measures and whether a person on whom such a direction has been issued has an obligation under law to provide such measures. The scheme of the Act as such is considered, it can be seen that such measures can be taken by the Tribunal to impose obligations on any person who get benefits from the senior citizen either by way of property or in kind. Since the order now passed is only temporary measure, this Court is of the view that 6 W.P.(C).No.7190 of 2017 there is no scope for interference with the order in as much as there is no jurisdictional error committed by the Tribunal. Leaving open all other issues now urged by the petitioners with regard to the jurisdiction, the writ petition is dismissed. No order as to costs. Sd/- **A. MUHAMED MUSTAQUE, JUDGE.** cl