Sri. Bharamappa S/O. Tammanna ... vs The Deputy Commissioner
2022 Latest Caselaw 2906 Kant

                          1




           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 21ST DAY OF FEBRUARY, 2022

                       BEFORE

      THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD

        WRIT PETITION NO.100206/2022 (GM-RES)

BETWEEN

SRI. BHARAMAPPA
S/O. TAMMANNA DALAWAI
AGE: 51 YEARS, OCC: AGRICULTURE,
R/A. GADYAL, TQ. JAMAKHANDI,
DIST. BAGALKOT.
                                     ...PETITIONER

(BY SRI. MRUTYUNJAY TATA BANGI, ADV.)

AND

1.     THE DEPUTY COMMISSIONER
       BAGALKOT DISTRICT,
       DIST: BAGALKOT.

2.     THE ASSISTANT COMMISSIONER,
       JAMAKHANDI SUB-DIVISION,
       JAMKHANDI, DIST: BAGALKOT.

3.     SMT. SATTEWWA
       W/O. TAMMANNA DALAWAI
       AGE: 68 YEARS, OCC: AGRICULTURE,
       R/A. GADYAL, TQ. JAMAKHANDI,
       DIST: BAGALKOT.

4.     SRI. BHIMAPPA
       S/O. TAMMANNA DALAWAI
                            2




     AGE: 48 YEARS,
     OCC: GADYAL, TQ. JAMAKHANDI,
     DIST: BAGALKOT.
                                       ...RESPONDENTS

(BY SRI. SHIVAPRABHU HIREMATH, AGA FOR R1 AND R2;
    SERVICE OF NOTICE TO R3 AND R4 IS DISPENSED
    WITH V/O/DTD.21.02.2022)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA PRAYING TO
ISSUE WRIT IN THE NATURE OF CERTIORARI QUASHING
ORDER PASSED BY THE RESPONDENT NO.1 DEPUTY
COMMISSIONER, BAGALKOTE, IN C.R.NO.26-/2021-22
DATED 19-08-2021 COPY AS PER ANNEXURE-F AND THE
ORDER PASSED BY THE RESPONDENT NO 2 ASSISTANT
COMMISSIONER, JAMKHANDI IN C.R.NO.03/2020-21
DATED 17-02-2021, COPY AS PER ANNEXURE-C AND
DISMISS THE CLAIM PETITION BY ALLOWING THE
PETITION WITH COSTS THROUGHOUT.

    THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

                        ORDER

The short question that arises for consideration is

whether the Deputy Commissioner, Bagalkot District,

Bagalkot [the first respondent] could have dismissed the

petitioner's appeal under Section 16 of the Maintenance

and Welfare of Parents and Senior Citizens Act, 2017

[for short, 'the Act'] on the ground that the remedy

under Section 16 of the Act is confined only to a 'senior

citizen'.

2. The petitioner who is the third respondent's

son, has filed this petition essentially on the ground

that the first respondent has dismissed his appeal on

the ground of maintainability, but this decision would

be impermissible in view of the decision of this Court

holding that the remedy under Section 16 of the Act

would be available to every person who is aggrieved by

the concerned Assistant Commissioner's order. The

petitioner also contends that the third respondent, his

mother, is instigated by one of the daughters who has

executed a registered relinquishment deed releasing all

her interest in the subject property. One of the brothers

viz., the fourth respondent has filed a suit for partition

in O.S. No.76/2013 and the appeal against the

Judgment and decree in such suit is pending

consideration in appeal. Even if there could be any

liability to pay maintenance to the third respondent-

mother, the entire responsibility could not have been

fastened on the petitioner.

3. Sri. Shivaprabhu Hiremath, learned

Additional Government Advocate, does not controvert

that with this Court's decision in the writ petition in

'Smt. M. Sunitha [Vidyasri] v. Smt. M. Shashikala

Mugadura and Another' [W.P. No.147056/2020

disposed of on 20.07.2021, the first respondent could

not have disposed of the appeal on the ground that the

remedy would not be available to the petitioner because

he is not a 'senior citizen' as contemplated under the

law.

4. In the light of this accepted position, this

Court is of the considered view that the petition must be

disposed of waiving notice to the third and fourth

respondents restoring the appeal to the board of the

first respondent for reconsideration on merits but on

terms. Hence the following:

ORDER

[a] The petition is allowed in part, and the impugned order dated 19.08.2021 in No.MAG.CR.No.26/2021-22 of the first respondent is quashed and the proceeding in No.MAG.CR.No.26/2021-22 is restored for reconsideration;

[b] The petitioner shall deposit a sum of Rs.30,000/- to the third respondent's savings account in No.17128023906 with the Karnataka Vikasa Grameena Bank, Gadyala Branch, Jamakhandi Taluk on or before the first date of hearing before the first respondent;

[c] If the petitioner fails to file proof of such deposit on the first date of hearing or on any such date the first respondent may allow, the petitioner's appeal shall be liable to be dismissed on such ground alone. The deposit as aforesaid shall be subject to the outcome of the appeal.

[d] The petitioner shall appear before the first respondent without further notice in proceeding No.MAG.CR.No.26/2021-22 on 21.03.2022 and the first respondent shall dispose of the proceedings after due notice to the third and fourth respondents.

Sd/-

JUDGE

AN/-