Calcutta High Court (Appellete Side)
Sri Bijay Kumar Aich vs State Of West Bengal And Others on 22 August, 2023
AD-18
Ct No.09
22.08.2023
TN
WPA No. 2535 of 2023
Sri Bijay Kumar Aich
Vs.
State of West Bengal and others
Mr. Dhiman Ray,
Mr. Dip Chanda,
Mr. Rounak Majumdar
.... for the petitioner
Despite attempt to serve, the intended service
on the private respondent has failed since the
envelope has returned with the endorsement
"unclaimed", which tantamounts to good service.
The petitioner has challenged orders of both the
forums below under the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 (hereinafter
referred to as "the 2007 Act"). Both the forums turned
down the application of the petitioner for eviction of
his daughter-in-law, the private respondent, under the
2007 Act on the ground that the dispute was civil in
nature and hence outside the purview of the said
forum.
Learned counsel for the petitioner cites a
coordinate Bench judgment reported at AIR 2022
Calcutta 192 (Debaki Nandan Maiti vs. State of West
Bengal) for the proposition that in respect of a
discomfort expressed by a senior citizen towards his
children, a single complaint is good enough evidence
and eviction ought to be granted.
Learned counsel further submits that since the
2007 Act applies not only to parents but also to senior
citizens, the daughter-in-law has also to be counted
as a relative within the contemplation of the Act for
the purpose of seeking maintenance in the form of
residence.
It is further contended that the Act itself
provides for maintenance, which includes residence
and, as such, the petitioner is entitled to the relief as
sought before the forums below.
Learned counsel for the petitioner places
specific reliance on paragraph no. 13 of the cited
judgment, which also quotes, inter alia, paragraph no.
9 of the judgment of Ramapada Basak vs. State of
West Bengal and Ors., reported at 2021 SCC OnLine
Cal 2161.
Insofar as the cited judgment is concerned, the
same pertains to a relief sought for eviction by a
senior citizen before the writ court. The court, while
approving of the judgment delivered in Ramapada
Basak (supra), in paragraph no. 13 of the said
judgment, refers to paragraph no. 9 of Ramapada
Basak (supra), where it was observed as follows:
"9. However, the right of senior citizen to exclusively
reside in his own house, must be viewed from the prism
of Article 21 of the Constitution of India. To compel a
senior citizen to approach either a civil court (the
jurisdiction of which is any way barred under Section
27 of the 2007 Act) or take recourse to a special Statute
like the 2007 Act would in most cases be extremely
onerous and painful for a person in the sunset days of
life. This Court is therefore of the view that the principle
of alternative remedy cannot be strictly applied to
Senior Citizens and a Writ Court must come to the aid
of a Senior Citizen in a given case."
Insofar as the said observation is concerned, it
pertains to the right of a senior citizen to exclusively
reside in his own house, which according to the court
must be viewed from the prism of Article 21 of the
Constitution of India.
In the said case, it was observed that a senior
citizen cannot be compelled to approach a civil court
or take recourse to a special Statute like the 2007 Act,
which would in most cases be extremely onerous and
painful for a person in the sunset days of life.
The principle of alternative remedy, it was held,
cannot be strictly applied to Senior Citizens and a
Writ Court must come to the aid of a Senior Citizen in
a given case.
In paragraph no. 17 of the cited judgment, the
learned Single Judge observed in the facts of the case
that in respect of a discomfort expressed by a senior
citizen towards his children, a single complaint is
good enough evidence. Further, in the said case,
there were no disputed questions of fact, that is, the
house admittedly belonged to the father of the writ
petitioner therein. There was a decree for divorce in
that matter, albeit ex parte. Admittedly, in the said
case the son had already taken up separate residence
before the writ petition was filed. The applicant
daughter-in-law therein had not claimed any right of
residence, nor had she alleged violence against her
father-in-law/writ petitioner or husband. The bad
blood between the applicant daughter-in-law on one
side and her husband and father-in-law on the other
was also recorded.
However, in the instant case, there is nothing on
record to show that the respondent has submitted her
version of facts before the forums below.
Insofar as the first forum is concerned, the order
of the Sub-Divisional Officer and Tribunal Officer is
annexed to the present writ petition at page-16
thereof. It is recorded there that the petitioner was
present and filed hazira and the opposite party was
absent. The petitioner was heard and considered.
The petitioner had submitted that his daughter-in-
law, the opposite party in the said case, was not
vacating his flat and that he is a pensioner and does
not want any maintenance from his daughter-in-law
or his son. He also submitted that he has not gifted
his flat at Rajdanga Main Road to anyone. It appeared
from the submission, it was recorded, that the matter
was civil in nature and was not maintainable before
the Tribunal. Accordingly, the case was dismissed,
without inviting any pleadings from the respondent.
Before the District Magistrate, both the parties
had appeared and the District Magistrate had decided
the matter as per direction of a coordinate Bench.
However, it has to be taken note of that the
District Magistrate is the Appellate Authority under
the Statue-in-question and not the first forum. As
such, there was no occasion for any pleadings to be
filed by the private respondent/alleged daughter-in-
law, before the said forum for the first time. The
District Magistrate, upon recording the submissions
and allegations of the parties, affirmed the finding of
the Sub-Divisional Officer to the extent that the issue
involved was the subject-matter of a civil dispute and
ought to be heard before a civil court.
Hence, as opposed to the cited judgment by the
petitioner, in the present case, it cannot be said that
any of the allegations made by the writ petitioner was
"admitted" by the private respondent at any point of
time, since she did not have an opportunity to file
pleadings before the first forum.
Unlike Debaki Nandan Maiti (supra), the present
challenge is not an original application by the writ
petitioner for grant of eviction by the writ court but a
challenge preferred against the concurrent findings of
both forums that the matter is not maintainable
before the said forums.
The writ petitioner, in the present case, has not
approached the writ court for the first time but
submitted to the jurisdiction of the competent
authority under the 2007 Act by filing an application
under Section 4 of the said Act.
Section 2(h) of the Act defines "senior citizen" to
mean any person being a citizen of India, who has
attained the age of sixty years or above. "Parent" has
been defined in Clause (d) of Section 2 as the father or
mother, whether biological, adoptive or step father or
step mother, as the case may be, whether or not the
father or the mother is a senior citizen.
Section 4 (1) of the Act provides that a senior
citizen including parent who is unable to maintain
himself from his own earning or property owned by
him, shall be entitled to make an application under
Section 5 in case of -
(i) parent or grand-parent, against one or
more of his children not being a minor;
(ii) a childless senior citizen, against such of
his relative referred to in clause (g) of
Section 2 of the Act.
(g) of Section 2 defines "relative" to mean any
legal heir of a childless senior citizen who is not a
minor and is in possession of or would inherit his
property after his death.
It is conspicuous to mention that, in the present
case, the writ petitioner has not preferred the
application against his son but his daughter-in-law,
who is neither the child of the petitioner nor a relative
of the petitioner within the definition of Section 2(g) of
the 2007 Act.
Upon a consideration of Section 4(1) of the Act,
it is also clear that the petitioner does not fall within
the zone of a childless senior citizen and the eviction
proceeding has not been filed against such of his
relative as referred to in Section 2(g).
The subsequent sub-sections of Section 4 as
well as the other sections pertain only to senior
citizens, in case they fall within the contemplation of
the definitions of Section 2 as well as Section 4(1) of
the 2007 Act.
Here the writ petitioner specifically invoked the
provisions of the 2007 Act without being competent
under the said Act to maintain the eviction proceeding
against his daughter-in-law simpliciter.
As such, there is no illegality or irregularity in
the decision-making process of the forums below in
observing that the matter pertains to a civil dispute
and the said authorities do not have jurisdiction
under the 2007 Act to decide the eviction proceeding
initiated by the petitioner. As such, there is no scope
of interference in the present writ petition.
Accordingly, WPA No. 2535 of 2023 is
dismissed, without any order as to costs.
However, nothing in this order shall preclude
the petitioner from instituting a proper eviction suit
before a competent civil court, if the petitioner is so
entitled in law. In case such a proceeding is initiated,
the said court shall decide all issues in accordance
with law and also adjudicate upon any interim
application, if filed by the petitioner in connection
with such suit, without being influenced on merits by
any observation made herein.
Urgent photostat certified copies of this order, if
applied for, be made available to the parties upon
compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.)
