James Kutty vs Appellate Tribunal For ...
2021 Latest Caselaw 12866 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                     &
                THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
         FRIDAY, THE 11TH DAY OF JUNE 2021 / 21ST JYAISHTA, 1943
                            W.A.NO.770 OF 2021
   AGAINST THE ORDER/JUDGMENT IN WP(C) 34098/2019 OF HIGH COURT OF
                             KERALA, ERNAKULAM
APPELLANT/S:

             JAMES KUTTY, AGED 56 YEARS
             S/O.JOSEPH, MUKALEL HOUSE, AVA THEKKUMKUTTY, ALLI P.O.,
             MUKKAM, KOZHIKODE- 673602.

             BY ADV P.A.AUGUSTIAN



RESPONDENT/S:

     1       APPELLATE TRIBUNAL FOR PROTECTION AND WELFARE OF PARENTS
             AND SENIOR CITIZEN
             CIVIL STATION, ERANHIPPALAM P.O., KOZHIKODE- 673020,
             REPRESENTED BY ITS REGISTRAR.

     2       ELYKUTTY JOSEPH, AGED 91 YEARS
             W/O.JOSEPH, C/O.SISILYCLATTIS, FLAT NO.28 A, SOLITAIRE B,
             COSMOS JEWELS, KAVESAR, THANE WEST, J.B ROAD, MUMBAI

     3       VIJAYAKUMAR, AGED 72 YEARS
             S/O.JOSEPH, 2/94 A, CHAKKITTADA, ERANHIPPALAM P.O.,
             KOZHIKODE- 673006.

     4       PHILOMINA ISSAC, AGED 65 YEARS
             W/O.LATE I.G.ISSAC, NO.4, MARBLE ARC, JOURNALIST COLONY,
             KALOOR, ERNAKULAM- 682017.

     5       LEELAMMA G., AGED 63 YEARS
             D/O.JOSEPH, KALLUNGAL HOUSE, ENGAPUZHA P.O., KOZHIKODE-
             673586.
 W.A.NO.770 OF 2021
                               ::2::

    6       SISILY CLATTIS, AGED 68 YEARS
            D/O.JOSEPH, FLAT NO.28 A, SOLITAIRE B, COSMOS
            JEWELS, KAVESAR, THANE WEST, J.B ROAD, MUMBAI-
            400615.

    7       MARGRAT ROBERTS, AGED 69 YEARS
            D/O.JOSEPH, J.M.M ROAD, MALAD WEST, MALVANI CHURCH,
            MUMBAI- 40065.

            BY ADV P.A.AUGUSTIAN



OTHER PRESENT:

            SR.GP.SRI.BIMALNATH



     THIS   WRIT   APPEAL   HAVING   COME   UP   FOR   ADMISSION   ON
11.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.NO.770 OF 2021
                                 ::3::

                               JUDGMENT

Anil K. Narendran, J.

The appellant is the petitioner in W.P.(C)No.34098 of 2019, a

writ petition filed under Article 226 of the Constitution of India,

seeking a writ of certiorari to quash Ext.P7 common order dated

16.09.2019 of the 1st respondent Appellate Tribunal under the

Maintenance and Welfare of Parents and Senior Citizens Act, 2007

(District Collector, Kozhikode) and discharge him from the liability to

make payments to the 2nd respondent herein. Ext.P7 order dated

16.09.2019 of the 1st respondent Appellate Tribunal is a common

order passed in Appeal No.01 of 2019 filed by the 2nd respondent

herein and Appeal No.06 of 2019 filed by the appellant herein, under

Section 16 of the said Act, challenging Ext.P4 order No.N1-7186/18

dated 22.03.2019 of the Tribunal under the Maintenance and

Welfare of Parents and Senior Citizens Act (Sub Collector,

Kozhikode), on an application filed by the 2 nd respondent herein,

under Sections 5 and 23 of the Act for maintenance and to declare

transfer of property in favour of the appellant herein to be void.

Another relief sought for in the writ petition is that, in the event this W.A.NO.770 OF 2021 ::4::

Court holds the petitioner liable to pay maintenance or other

expenses to the 2nd respondent mother, the 3rd respondent may be

directed to pay off the said amount, since he is liable to pay the

same in terms of Ext.P3 agreement dated 14.06.2005.

2. On 16.12.2019, when the writ petition came up for

admission, this Court admitted the matter on file and issued notice

to the respondents. On 16.09.2020, this Court granted an interim

order staying the entire proceedings pursuant to Ext.P7 common

order, on condition that the writ petitioner pays an amount of

Rs.25,000/- to the 2nd respondent, within a period of one month.

The writ petitioner complied with the said condition and this Court

extended the interim order for a further period of two weeks.

Thereafter, on 11.12.2020, the said interim order was extended till

15.01.2021, on condition that the writ petitioner pays a further sum

of Rs.25,000/-, within two weeks. The learned counsel for the 2 nd

respondent would point out that the writ petitioner failed to comply

with the condition stipulated in the order of this Court dated

11.12.2020.

W.A.NO.770 OF 2021 ::5::

3. By the judgment dated 15.01.2019, the learned Single

Judge dismissed W.P.(C)No.34098 of 2019. The learned Single

Judge noticed that, under Section 16 of the Act, only a senior citizen

or a parent, as the case may be, who is aggrieved by an order of the

Maintenance Tribunal is entitled to prefer an appeal within sixty

days from the date of the order passed by the Tribunal. No right to

prefer appeal is granted to the children or the relatives of a senior

citizen or a parent. On the contention advanced by the petitioner

that the amount ordered by the Maintenance Tribunal, as confirmed

by the Appellate Tribunal is highly onerous, the learned Single Judge

held that the directions issued by the Maintenance Tribunal, as

confirmed by the Appellate Tribunal, is reasonable and proper in the

facts and circumstances of the case. Feeling aggrieved by the

judgment of the learned Single Judge, the appellant is before this

Court in this writ appeal filed under Section 5 of the Kerala High

Court Act, 1958.

4. Heard Sri.P.A. Augustine, the learned counsel for the

appellant, Sri.Sunny Xavier, the learned counsel for the 2 nd

respondent, Sri.K.M. Firoz, the learned counsel for 3 rd and 4th W.A.NO.770 OF 2021 ::6::

respondents and also Sri.Ameer K.M, the learned counsel for 5 th and

6th respondents.

5. The issue that arises for consideration is as to whether

any interference is warranted on the judgment of the learned single

Judge dated 15.01.2021 in W.P.(C)No.34098 of 2019, in this writ

appeal filed invoking the appellate jurisdiction under Section 5(i) of

the Kerala High Court Act, 1958.

6. The learned counsel for the appellant would contend that,

in the impugned judgment, the learned Single Judge failed to

appreciate the legal and factual contentions raised by the appellant

in its correct perspective. The appellant is willing to look after the

2nd respondent mother or to pay amounts in consonance with the

terms of Ext.P3 agreement dated 14.06.2005. The learned Single

Judge has not properly adverted to the above aspect of the matter.

7. Per contra, the learned counsel for the 2nd respondent,

the learned counsel for 3rd and 4th respondents and also the learned

counsel for 5th and 6th respondents would contend that, as rightly

noticed by the learned Single Judge, the appeal filed by the

appellant before the 1st respondent Appellate Tribunal was not W.A.NO.770 OF 2021 ::7::

maintainable under Section 16 of the Act. The reasoning of the

learned Single Judge in the impugned judgment is neither perverse

nor patently illegal, warranting interference in this writ appeal. The

2nd respondent is a senior citizen aged 95 years, who is completely

bed ridden and who requires a dedicated home nurse for taking care

of her needs. She also requires considerable amount towards her

treatment/ medical expenses. Moreover, appellant has not chosen to

comply with the condition stipulated in the order of the learned

Single Judge dated 11.12.2020, whereby the interim order granted

in the writ petition was extended till 15.01.2021, on condition that

the writ petitioner pays a further sum of Rs.25,000/-, within two

weeks.

8. The appellant and respondents 3 and 5 to 7 are the

children of the 2nd respondent Elykutty Joseph. The 4th respondent is

the widow of her predeceased son I.G.Issac. The 2nd respondent

approached the Maintenance Tribunal under Sections 5 and 23 of

the Act, against the appellant and the 3 rd respondent, seeking

maintenance and for return of property by declaring the transfer of

property in their favour void, under Section 23 of the Act. In the W.A.NO.770 OF 2021 ::8::

application filed before the Maintenance Tribunal, the 2 nd respondent

contended that, after the death of her husband, she was given false

inducements and was made to part with 15 cents by the appellant.

Later, the 3rd respondent persuaded her to assign the balance extent

of 9.5 cents to him. The 3rd respondent had agreed in Ext.P3

agreement dated 14.06.2005 that he would look after the 2nd

respondent mother. However, he went back on his word and refused

to look after her. Therefore, she is depending on her daughters, i.e.,

respondents 5 to 7 for her maintenance. The appellant and the 3rd

respondent are living in affluent circumstances. The appellant had

retired from the Kerala Police Service, while working as an Assistant

Sub Inspector and his wife was a school teacher. The 3rd

respondent, her elder son, had worked in Military Service and had

worked overseas for a considerable period.

9. Before the Maintenance Tribunal, the appellant contended

that, he had handed over substantial amounts to the 3 rd respondent,

his elder brother, for the purpose of looking after the 2 nd respondent

mother. His father had executed the gift deed in his name, taking

into consideration his poor financial condition. His brother late W.A.NO.770 OF 2021 ::9::

I.G.Issac was very affluent, who was a Captain in Merchant Navy.

On his death, the 2nd respondent received huge amounts towards

her share, which is sufficient and more for her maintenance. The

appellant is getting only a meagre amount by way of pension, which

is required for him, his wife and also for the education of his

daughter.

10. The Maintenance Tribunal, in Ext.P4 order dated

22.3.2019 held that the documents executed prior to the coming

into force of the Act cannot be unsettled. The 2nd respondent mother

was held entitled to live with any of her children as per her wishes

and wants. The appellant and the 3rd respondent are directed to pay

a sum of Rs.4,000/- each per month towards the maintenance of

the 2nd respondent. The appellant, the 3rd respondent and

respondents 6 and 7 are directed to bear the expenses towards

engaging a home nurse and also the medical expenses of their

mother, jointly.

11. The 2nd respondent challenged Ext.P4 order of the

Maintenance Tribunal by filing Ext.P5 appeal (Appeal No.1 of 2019),

under Section 16 of the Act, before the 1st respondent Appellate W.A.NO.770 OF 2021 ::10::

Tribunal. Challenging the said order, the appellant has also filed

Ext.P6 appeal (Appeal No.6 of 2019) before the Appellate Tribunal.

The Appellate Tribunal, by Ext.P7 common order dated 16.09.2019,

rejected both the appeals and confirmed Ext.P4 order of the

Maintenance Tribunal as reasonable and proper in the facts and

circumstances of the case. In the impugned judgment dated

15.01.2021 in W.P.(C)No.34098 of 2019, the learned Single Judge

held that the directions issued by the Maintenance Tribunal, as

confirmed by the Appellate Tribunal, is reasonable and proper in the

facts and circumstances of the case. The learned Single Judge has

also noticed that, under Section 16 of the Act, only a senior citizen

or a parent, as the case may be, who is aggrieved by an order of the

Maintenance Tribunal, is entitled to prefer an appeal and no right to

prefer appeal is granted to the children or the relatives of a senior

citizen or a parent.

12. The Maintenance and Welfare of Parents and Senior

Citizens Act, 2007 was enacted by the Parliament to provide for

more effective provisions for the maintenance and welfare of

parents and senior citizens guaranteed and recognised under the W.A.NO.770 OF 2021 ::11::

Constitution of India and for matters connected therewith or

incidental thereto. Section 4 of the Act deals with maintenance and

welfare of parents and senior citizens; Section 5 deals with

application for maintenance; Section 6 deals with jurisdiction and

procedure; Section 7 deals with constitution of Maintenance

Tribunal; Section 8 deals with summary procedure in case of

inquiry; and Section 9 deals with order of maintenance. As per sub-

section (1) of Section 9 of the Act, if children or relatives, as the

case may be, neglect or refuse to maintain a senior citizen being

unable to maintain himself, the Tribunal may, on being satisfied of

such neglect or refusal, order such children or relatives to make a

monthly allowance at such monthly rate for the maintenance of such

senior citizen, as the Tribunal may deem fit and to pay the same to

such senior citizen as the Tribunal may, from time to time, direct.

As per sub-section (2) of Section 9, the maximum maintenance

allowance which may be ordered by such Tribunal shall be such as

may be prescribed by the State Government which shall not exceed

ten thousand rupees per month. Ext.P4 order dated 22.03.2019 of

the Maintenance Tribunal is one issued under Section 9 of the Act. W.A.NO.770 OF 2021 ::12::

13. Section 16 of the Act deals with appeals before the

Appellate Tribunal constituted under Section 15, against the order of

maintenance by the Maintenance Tribunal. As per sub-section (1) of

Section 16, any senior citizen or a parent, as the case may be,

aggrieved by an order of a Tribunal may, within sixty days from the

date of the order, prefer an appeal to the Appellate Tribunal. As per

the first proviso to sub-section (1) of Section 16, on appeal, the

children or relative who is required to pay any amount in terms of

such maintenance order shall continue to pay to such parent the

amount so ordered, in the manner directed by the Appellate

Tribunal. As per the second proviso to sub-section (1) of Section 16,

the Appellate Tribunal may, entertain the appeals after the expiry of

the said period of sixty days, if it is satisfied that the appellant was

prevented by sufficient cause from preferring the appeal in time. As

per sub-section (5) of Section 16, the Appellate Tribunal shall,

adjudicate and decide upon the appeal filed against the order of the

Tribunal and the order of the Appellate Tribunal shall be final.

14. A plain reading of the provisions under Section 16 of the

Act make it explicitly clear that the appellate remedy before the W.A.NO.770 OF 2021 ::13::

Appellate Tribunal, against the order of maintenance passed by the

Maintenance Tribunal, is available only to the any senior citizen or a

parent, as the case may be, and not to the children or relative who

is required to pay any amount in terms of such maintenance order.

In view of the provisions under the first proviso to sub-section (1) of

Section 16, on appeal by a senior citizen or a parent, as the case

may be, the children or relative who is required to pay any amount

in terms of such maintenance order shall continue to pay to such

parent the amount so ordered, in the manner directed by the

Appellate Tribunal.

15. In Antony Scaria and others v. District Collector,

Kottayam [2020 (3) KHC 303] a Division Bench of this Court

noticed that Section 16 of the Maintenance and Welfare of Parents

and Senior Citizens Act, 2007 enables only a senior citizen or a

parent, as the case may be, aggrieved by an order of a Maintenance

Tribunal, within sixty days from the date of the order, to prefer an

appeal to the Appellate Tribunal.

16. In the absence of an appellate remedy before the

Appellate Tribunal, against the order of maintenance passed by the W.A.NO.770 OF 2021 ::14::

Maintenance Tribunal, the children or relative of a senior citizen or a

parent, who is required to pay any amount in terms of such

maintenance order, will have to resort to the extra ordinary

jurisdiction of the High Court under Article 226 of the Constitution of

India, seeking judicial review. In a writ petition filed by the children

or relative of a senior citizen or a parent, who is required to pay any

amount in terms of the maintenance order of the Maintenance

Tribunal, it is not open for the High Court, while exercising the

jurisdiction of judicial review, to take another view as if sitting in

appeal, as the High Court does not act as an Appellate Court, but

only reviews the manner in which such a decision was taken.

17. In the instant case, instead of challenging Ext.P4 order

dated 22.03.2019 of the Maintenance Tribunal by resorting to the

extra ordinary jurisdiction of the High Court under Article 226 of the

Constitution of India, seeking judicial review, the appellant filed

Ext.P6 appeal before the Appellate Tribunal, invoking Section 16 of

the Act. As rightly noticed by the learned Single Judge, the said

appeal filed by the appellant was not maintainable before the

Appellate Tribunal, in view of the provisions under Section 16 of the W.A.NO.770 OF 2021 ::15::

Act. Moreover, in W.P.(C)No.34098 of 2019 fled against Ext.P7

order dated 16.09.2019 of the 1st respondent Appellate Tribunal, the

appellant failed to seek judicial review of this Court under Article

226 of the Constitution of India against Ext.P4 order dated

22.03.2019 of the Maintenance Tribunal. Therefore, in the absence

of a valid challenge made against Ext.P4 order of the Maintenance

Tribunal, by resorting to the extra ordinary jurisdiction of the High

Court under Article 226 of the Constitution of India, at appropriate

time, seeking judicial review, the appellant cannot raise a valid

challenge against Ext.P7 order of the 1st respondent Appellate

Tribunal in W.P.(C)No.34098 of 2019, by resorting to the extra

ordinary jurisdiction under Article 226 of the Constitution, seeking

judicial review.

18. Moreover, as pointed out by the learned counsel for the

2nd respondent, the appellant has not chosen to comply with the

condition stipulated in the order of the learned Single Judge dated

11.12.2020, whereby the interim order granted in the writ petition

was extended till 15.01.2021, on condition that the writ petitioner

pays a further sum of Rs.25,000/-, within two weeks. W.A.NO.770 OF 2021 ::16::

19. By the impugned judgment in W.P.(C)No.34098 of 2019,

the learned Single Judge declined interference on Ext.P7 order of

the 1st respondent Appellate Tribunal, for the reasons stated in that

judgment. The reasoning of the learned Single Judge in the

impugned judgment is neither perverse nor patently illegal,

warranting interference in exercise of the appellate jurisdiction

under Section 5 of the Kerala High Court Act, 1958.

In the result, this writ appeal fails and the same is accordingly

dismissed. No order as to costs.

sd/-

ANIL K. NARENDRAN JUDGE

sd/-

ZIYAD RAHMAN A.A.

JUDGE

DG W.A.NO.770 OF 2021 ::17::

APPENDIX OF WA 770/2021

PETITIONER ANNEXURE

ANNEXURE I TRUE COPY OF THE REQUEST LETTER DATED 1.2.2021 FILED BY RESPONDENT NO.6