Priyanka Dhotre and Anr. Vs the Andaman and Nicobar Administration and Ors.

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IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION

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[CIRCUIT BENCH AT PORT BLAIR]

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PRESENT: HON’BLE JUSTICE SHAMPA SARKAR

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WPA/1118/2023

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PRYANKA DHOTRE AND ANOTHER

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… PETITIONERS

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VERSUS

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THE ANDAMAN AND NICOBAR ADMINISTRATION AND OTHERS	… RESPONDENTS
For the Petitioners : Mr.	Lokesh Chezian
For the Administration : Mr. Mr.	Shatadru Chakraborty Dibesh Dwivedi
For the Private Respondents : Ms.	Anjili Nag
Hearing concluded on : 16.	01.2024
Judgment on : 09.	02.2024

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SHAMPA SARKAR, J.

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The writ petition has been filed challenging the order dated December 7, 2023 passed by the Senior Citizens Welfare & Maintenance Tribunal, Campbell Bay. The petitioners were directed to vacate the property, which was the subject matter of dispute.

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The petitioners have challenged the said order on various grounds. First, that the petitioner No. 1 being a housewife, had no source of income. She was residing in the house of the father in law,

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which was a shared household and a protective order was passed in her favour by the Judicial Magistrate, Campbell Bay in Misc. Case No. 01 of 2022.

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According to the petitioners, a direction was passed restraining dispossession of the petitioner No.1 and her family members from the shared house hold, without following the due process of law. The order impugned was passed without considering the above fact and also the contention of the petitioners that the senior citizen had already sold the property to a third party and had also accepted Rs. 10 lakhs as consideration. The sale agreement would indicate that the possession was also given in favour of the third party.

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Under such circumstances, the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter refer to as 2007 Act) would not have any application and the order of eviction of the petitioners, was liable to be set aside. In the written objection filed by the petitioners, specific averments were made with regard to the unlawful acts committed by one Smt. A. Dhanalakshmi and her companions, who tried to forcefully evict the petitioners on the basis of the alleged sale. An FIR was registered under sections 354, 427,504,506,509 read with section 34 of the Indian Penal Code.

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Further, on the complaint of the father-in-law /senior citizen, a proceeding was already initiated by the Tehsildar under section 161 of the Andaman and Nicobar Islands Land Revenue & Land Reforms

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Regulation, 1966, with regard to the allegation of encroachment on the land in question.

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Ms. Nag, learned advocate, appearing on behalf of the senior citizen submitted that although the sale agreement was entered into, the registration could not be completed and the senior citizen had the right to proceed against the petitioners, under the 2007 Act. Moreover, the order of the Judicial Magistrate, Campbell Bay, restraining the dispossession of the petitioner No.1 and her family members, indicated that such order would not prevent dispossession by following the due process of law. Proceedings under the 2007 Act, permitted an order of eviction of the petitioners. Thus, the order impugned, was passed according to law.

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Moreover, learned Advocate submitted that the order passed by His Lordship in WPA/779/2022, had not been challenged by the petitioners. His Lordship had directed the Assistant Commissioner, Campbell Bay to look into the complaint filed by the respondent No. 3 and take steps under Rule 20 of Chapter VI of the Andaman and Nicobar Islands Maintenance and Welfare of Parents and Senior Citizens Rules, 2012 (hereinafter referred to as the said Rules).

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Further, it was submitted by Ms. Nag, that the proceeding under the Domestic Violence Act was not maintainable as there was no allegation against the husband, but only against the father-in-law. It was also contended that the order impugned was an appealable order.

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Mr. Shatadru Chakraborty, learned advocate appearing on behalf of the Administration submitted that the order was passed in compliance of a direction in contempt. His Lordship had directed by an order dated December 1, 2023, that a fresh order should be issued by the Commissioner.

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On the basis of such directions, all the issues raised by the senior citizen in the letter dated June 21, 2022, was taken into consideration and the order of eviction was passed. It was also submitted that the property of any kind, whether moveable, immoveable, ancestral or self acquired, belonging to a senior citizen, ought to be protected under the 2007 Act. The Act also provided that the State Government should prescribe a comprehensive action plan for protection of the life and property of senior citizens. The Act did not exclude orders of eviction and the competent tribunal could direct eviction and vacation of the property of a senior citizen. Only because the son did not have another place to stay, he and his wife and child, could not be allowed to forcefully occupy the house of the senior citizen, against his will.

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Referring to the said Rules, Mr. Chakraborty, learned advocate further submitted that special provisions had been made for protection of the life and property of senior citizens.

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Both Mr. Chakraborty and Ms. Nag, submitted that the children of the respondent No. 3 did not have any right, title and interest in the property and could not forcefully remain in the

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property. The Act and Rules provided a mechanism by which the senior citizen’s property could not only be protected, but orders of eviction and execution of such orders of eviction, could also be passed under the said Rules.

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Reliance was placed on a decision of a Division Bench of this Court in the matter Ms. Sahidun Nisa vs. The Lieutenant Governor and others (MAT No. 1719 of 2017) wherein, it was held that the 2007 Act provided a comprehensive mechanism by which a property of an older person should be protected and such protection would include orders of eviction, in proper cases. In the event, it was found that the senior citizen was deprived of his right to use of his property, by the children, the Tribunal was empowered to direct eviction as one of the reliefs.

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The issue to be decided in this writ petition is whether the order of eviction passed by the Tribunal dated December 7, 2023, was sustainable in law or not.

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The 2007 Act, was promulgated to provide more effective provisions for maintenance and welfare of parents and senior citizens, guaranteed and recognized under the Constitution and for matters connected therein or incidental thereto. The statements of objects and reasons provide thus :-

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“Statement of objects and Reasons- Traditional norms and values of the Indian society laid stress on providing care for the elderly. However, due to withering of the joint family system, a large number of elderly are not being looked after by their family. Consequently, many older persons, particularly widowed women are now forced to spend their twilight years

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all alone and are exposed to emotional neglect and to lack of physical and financial support. This clearly reveals that ageing has become a major social challenge and there is a need to give more attention to the care and protection for the older persons. Though the parents can claim maintenance under the Code of Criminal Procedure, 1973, the procedure is both time-consuming as well as expensive. Hence, there is a need to have simple, inexpensive and speedy provisions to claim maintenance for parents.

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2. The Bill proposes to cast an obligation on the persons who inherit the property of children or their aged relatives to maintain such aged relatives and also proposes to make provisions for setting up oldage homes for providing maintenance to the indigent older persons.

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The bill further proposes to provide better medical facilities to the senior citizens and provisions for protection of their life and property.

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3. The Bill, therefore, proposes to provide for-

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(a) Appropriate mechanism to be set up to provide need-based maintenance to the patents and senior citizens;

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(b) Providing better medical facilities to senior citizens;

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(c) For institutionalisation of a suitable mechanism for protection of life and property of older persons;

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(d) Setting up of oldage homes in every district.

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4. The Bill seeks to achieve the above objectives.”

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16. In the decision of Pranav Singh @ Pranav Goldy vs.

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Mahendra Prasad Singh passed in CO/782/2012, decided on April 27, 2012 by the Calcutta High Court, the objects of the Act were discussed. It was held that the 2007 Act was promulgated, principally

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to ameliorate the deprivation caused to the parents, by the children. The break down in the joint family system and creation of micro families, possibly made people selfish and self-content. Consequently, many elderly persons, particularly widowed women, as noticed in the

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Act, were exposed to neglect. They were required to be provided with financial help and physical support.

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Undoubtedly, the Act is a simple, inexpensive and a speedy procedure for protection of life and property of senior citizens. The 2007 Act has overriding effect over any other enactment or any instrument, which may be inconsistent with the provisions thereof.

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It has been judicially recognized upon analysis of the above aims and objectives of the 2007 Act, that the said Act did not exclude an order of eviction of the children, in appropriate cases. However, such order of eviction can only be passed within the four corners of the 2007 Act and upon the Tribunal being satisfied that the senior citizen was not being maintained by the children and was being unnecessarily harassed and tortured in the use, occupation and enjoyment of his/her property. The occupation of the property of a senior citizen by the children, is a permissive one and the senior citizen has the right to enjoy such property freely, without fear.

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Moreover, the statements of objects and reasons which have been quoted hereinbefore, clearly provide for institutionalization of a suitable mechanism for protection of life and property of older persons. Such institutionalized mechanism, in my opinion, was in the form of establishing maintenance tribunals under the 2007 Act. Considering the situation of elderly couples, such mechanism was devised. The Act is a complete code, which provides how all forms of

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protection and maintenance should be awarded to the senior citizens and orders so passed, be implemented.

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Applying the objects and reasons, this Court has to now venture into the task of assessing whether the order of eviction passed in this case, could be issued in the facts and circumstances of this particular case. The life and property of a senior citizen should be protected in accordance with law, is an admitted position and the law mandates such protection.

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In this case, a letter was written to the Assistant Commissioner and Tehsildar, Campbell Bay, by the senior citizen, alleging that the landed property of the senior citizen in survey no. 232/37, measuring an area of 0.0142 hectares, situated at village Indira Nagar, consisting of a semi RCC house and a shop, was sold to one Smt. A. Dhanalakshmi. The senior citizen was residing for the past six years at Port Blair. Few years back, the senior citizen had visited his house and shop and kept a few articles in the house. That James and his wife Pryanka, broke open the lock and trespassed into the house. The fact came to the knowledge of the senior citizen when Smt. Dhanalakshmi intimated him that when she went to visit the house which she had purchased, James and his wife informed her that they would not leave the house. The request in the said letter written by the senior citizen was that necessary action should be taken against James and his wife, so that the possession of the house

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could be handed over at the earliest, to Smt.Dhanalaskshmi, that is, the purchaser.

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This letter was not responded to by the addressees and a writ petition was filed. WPA/779/2022 was disposed of with a direction upon the Assistant Commissioner, Campbell Bay to look into the petitioner’s complaint and take urgent steps in accordance with Rule 20 Chapter VI of the said Rules of 2012. For convenience, the rule is quoted below.

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“20. Action plan for the protection of life and property of senior citizens-

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(1) The District Superintendent of Police, and in the case of cities having a Police Commissioner, such Police Commissioner shall take all necessary steps, subject to such guidelines as the State Government may issue from time to time, for the protection of life and property of senior citizens.

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(2) Without prejudice to the generality of sub-rule(1) i. Each police station shall maintain an up-to-date list of senior citizens living within its jurisdiction, especially those who are living by themselves (i.e without there being any member in their household who is not a senior citizens).

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ii. A representative of the police station together, as far as possible, with a social worker or volunteer, shall visit such senior citizens at regular intervals of at least once a month, and shall, in addition, visit them as quickly as possible on receipt of a request of assistance from them. iii. Complaints/problems of senior citizens shall be promptly attended to, by the local Police.

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iv. One or more volunteer’s Committee(s) shall be formed for each Police station which shall ensure regular contact between the senior citizens, especially those living by themselves, on the one hand, and the police and the district administration on the other.

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v. The District Superintendent of Police or, as the case may be, the Police Commissioner shall cause to be publicized widely in the media and through the Police Stations, at regular intervals, the steps being taken for the protection of life and property of senior citizens.

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vi. Each Police station shall maintain a separate register containing all important particulars relating to offences committed against senior citizens, in such form as the State Government may, by order, specify. vii. The registration referred to in clause (vi) shall be kept available for public inspection, and every officer inspecting a Police Station shall invariably review the status as reflected in the register.

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viii. The Police Station shall send a monthly report of such crimes to the District Superintendent of Police by the 10^th of every month.

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ix. List of Do’s and Don’ts to be followed by senior citizens in the interest of their safety will be widely publicised.

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x. Antecedents of domestic servants and others working for senior citizens shall be promptly verified, on the request of such citizens.

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xi. Community policing for the security of senior citizens will be undertaken in conjunction with citizens living in the neighbourhood. Residents’ Welfare Associations, Youth Volunteers, Non-Government Organizations, etc.

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xii. The District Superintended of Police shall submit to the Director General of Police and to the District Magistrate, a monthly report by the 20^th of every month, about the status of crime against senior citizens during the previous month, including progress of investigation and prosecution of registered offences, and preventive steps taken during the month.

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xiii. The District Magistrate shall cause the report to be placed before the District-level Coordination-cum-Monitoring Committee constituted under rule22.

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xiv. The Director General of Police shall cause the reports submitted under clause (xii) to be complied, once a quarter, and shall submit them to the State Government every quarter as well as every year for, inter alia, being placed before the State Council of Senior Citizens constituted under rule 21.”

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From the rules, it appears that an action plan for protection of the life and property of senior citizens have been laid down. The rules cast a duty upon the police authorities to look into complaint of a senior citizen. As no steps were taken, when the writ petition was filed. The rules do not provide for issuing an order of eviction. His Lordship had directed that the letter of the said senior citizen should be considered in terms of the Rule 20 Chapter VI of the said Rules and necessary action should be taken. This was with reference to the allegation of non-consideration of the request made by the senior citizen, before the Assistant Commissioner.

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The complaint before the authority was as follows:-

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“Sir, recently I had sold my said landed property one Smti. Dhanalakshmi, R/o Campbell Bay and when she made a visit to the house, she was surprised to find that one Mr. James and his wife Priyanka have broken open the lock and have made an illegal trespass into my house and they are presently residing there illegally fully knowing that I have left Campbell Bay permanently to Port Blair. Sir, Smti Dhanalakshmi was informed by James and his wife that they will not allow anybody inside the house and threatened her with dire consequences. Sir, the following articles/items were there inside my house when I left my house.

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Steel Almirah -02 Nos.

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T.V. -01 No.

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Refrigerator -01 No.

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Empty Gas cylinder -01 No.

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Masala Pather -01 No.

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Sofa set -01 No. -01 No.

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Gas Stove with regulator -01 No.

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Utensils

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Table -01 No.

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10.Tea poy -01 No.

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Sir, Kindly initiate necessary action against James and his wife Priyanka and kindly allow the possession of the house to Smti. Dhanalakshmi (Purchaser) at the earliest.”

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Thus, the order of eviction, if any, would have to be passed in a proceeding instituted before the Tribunal, squarely within the four corners of Maintenance and Welfare of Parents and Senior Citizens Act, 2007. Section 5 and 6 of the 2007 Act and the Rules of 2012, provide the format and the procedure as to how an application has to be filed and disposed of.

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It appears that the order impugned, does not indicate that the order passed by the Judicial Magistrate under the Domestic Violence Act, had been considered. The order also does not indicate consideration of the fact that an FIR had been registered against Dhanalakshmi in this regard, at the instance of the petitioners.

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Reference is made to the decision of Hon’ble Apex Court in the matter of Smt. S. Vanitha vs. The Deputy Commissioner, Bengaluru Urban District and other in Civil Appeal No. 3822 of 2020 (arising out of SLP (C) NO. 2976 of 2019. The relevant paragraph Nos. 21 and 22 are quoted below :-

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“21. In this case, both pieces of legislation are intended to deal with salutary aspects of public welfare and interest. The PWDV Act 2005 was intended to deal with the problems of domestic violence which, as the Statements of Objects and reasons sets out, “is widely prevalent but has remained largely invisible in the public domain”. The Statements of Objects and Reasons indicates that while Section 498A of the Indian Penal Code created a penal office out of a woman’s subjection to cruelty by her husband or relative, the civil laws did not address its phenomenon in its entirely. Hence, consistent with the provisions of Articles 14, 15 and 21 of the Constitution, Parliament enacted a legislation which would

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“provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society”. The ambit of the Bill has been explained thus:

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“4. The Bill, inter alia, seeks to provide for the following:-

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(i) It covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Even those women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation. However, whereas the Bill enables the wife or the female living in a relationship in the nature or marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner.

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(ii) It defines the expression “domestic violence” to include actual abuse or threat or abuse that is physical, sexual, verbal, emotional or economic. Harassment by the way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.

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(iii) It provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate.

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(iv) It empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting to communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from the domestic violence.

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(v) It provides for appointment of Protection Officers and registration of non-government organisations as service providers for providing assistance to the aggrieved person with respect to her medical examination, obtaining legal aid, safe shelter, etc.”

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The above extract indicates that a significant object or the legislation is to provide for and recognize the rights of women to secure housing and to recognize the right of a woman to reside in a matrimonial home or a shared household, whether or not she has any title or right in the shared household. Allowing the Senior Citizens Act 2007 to have an overriding force and effect in all situations, irrespective of competing entitlements of a woman to a right in a shared household within the meaning of the PWDV Act 2005, would defeat the object and purpose which the Parliament sought to achieve in enacting the latter legislation. The law protecting the interest of senior citizens is intended to ensure that they are not left destitute, or at the mercy of their children or relatives. Equally, the purpose of the PWDV Act 2005 cannot be ignored by a sleight of statutory interpretation. Both sets of legislations have to be harmoniously construed. Hence, the right of a woman to secure a residence order in respect of a shared household cannot be defeated by the simple expedient of securing an order of eviction by adopting the summary procedure under the Senior Citizens Act 2007.

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22. This court is cognizant that the Senior Citizens Act 2007 was promulgated with a view to provide a speedy and inexpensive remedy to senior citizens. Accordingly, Tribunals were constituted under Section 7. These Tribunals have the power to conduct summary procedures for inquiry, with all powers of the Civil Courts, under Section 8. The jurisdiction of the Civil Courts has been explicitly barred under Section 27 of the Senior Citizens Act 2007. However, the over-riding effect for remedies sought by the applicants under the Senior Citizens Act 2007 under Section 3, cannot be interpreted to preclude all other competing remedies and protections that are sought to be conferred by the PWDV Act 2005. The PWDV Act 2005 is also in the nature of a special legislation, that is enacted with the purpose of correcting gender discrimination that pans out in the form of social and economic inequities in a largely patriarchal society. In deference to the dominant purpose of both the legislations, it would be appropriate for a Tribunal under the Senior Citizens Act, 2007 to grant such remedies of maintenance, as envisaged under S.2(b) of the Senior Citizens Act 2007 that do not result in obviating competing remedies under other special statutes, such as the PWDV Act 2005. Section 26²⁷ of the PWDV Act empowers certain reliefs, including relief for a residence order, to be obtained from any civil court in

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any legal proceedings. Therefore, in the event that a composite dispute is alleged, such as in the present case where the suit premises are a site of contestation between two groups protected by the law, it would be appropriate for the Tribunal constituted under the Senior Citizens Act 2007 to appropriately mould reliefs, after noticing the competing claims of the parties claiming under the PWDV Act 2005 and senior Citizens Act 2007. Section 3 of the Senior Citizens Act, 2007 cannot be deployed to over ride and nullify other protections in law, particularly that of a woman’s right to a ‘shared household’ under Section 17 of the PWDV Act 2005. In the event that the “aggrieved woman” obtains a relief from a Tribunal constituted under the Senior Citizens Act 2007, she shall duty-bound to inform the Magistrate under the PWDV Act 2005, as per Sub-Section (3) of Section 26 of the PWDV Act 2005. This course of action would ensure that the common intent of the Senior Citizens Act 2007 and the PWDV Act 2005-of ensuring speedy relief to its protected groups who are both vulnerable members of the society, is effectively realized. Rights in law can translate to rights in life, only if there is an equitable ease in obtaining their realization.”

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28. Although, it is submitted by Mr. Chakraborty that the order impugned had been passed by the Tribunal on the basis of an order in contempt, the Tribunal being constituted under section 7 of the 2007 Act is vested with the powers of the civil court. Section 8 of the said Act clearly indicates so. Thus, even if the proceeding is a summary one, the Tribunal has to act within the four corners of the statute and also follow the procedure and rules thereunder.

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29. The relevant provisions of the Act are quoted below:-

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“4. Maintenance of Parents and Senior Citizens .- (1) 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;

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ii. a childless senior citizen, against such of his relative referred to in clause (g) of section 2.

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(2) The obligation of the children or relative, as the case may be, to maintain a senior citizen extends to the needs of such citizen so that senior citizen may lead a normal life.

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(3) The obligation of the children to maintain his or her parent extends to the needs of such parent either father or mother or both, as the case may be, so that such parent may lead a normal life.

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(4) Any person being a relative of a senior citizen and having sufficient means shall maintain such senior citizen provided he is in possession of the property of such senior citizen or he would inherit the property of such senior citizen:

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Provided that where more than one relatives are entitled to inherit the property of a senior citizen, the maintenance shall be payable by such relative in the proportion in which they would inherit his property.

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5. Application for maintenance .- (1) An application for maintenance under section 4, may be made—

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(a) by a senior citizen or a parent, as the case may be; or

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(b) if he is incapable, by any other person or organisation authorised by him; or

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(c) the Tribunal may take cognizance suo motu.

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Explanation.—For the purposes of this section “organisation” means any voluntary association registered under the Societies Registration Act, 1860 (21 of 1860) or any other law for the time being in force.

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(2) The Tribunal may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this section, order such children or relative to make a monthly allowance for the interim maintenance of such senior citizen including parent and to pay the same to such senior citizen including parent as the Tribunal may from time to time direct.

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(3) On receipt of an application for maintenance under subsection (1), after giving notice of the application to the children or relative and after giving the parties an opportunity of being heard, hold an inquiry for determining the amount of maintenance.

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(4) An application filed under sub-section (2) for the monthly allowance for the maintenance and expenses for proceeding shall be disposed of within ninety days from the date of the service of notice of the application to such person:

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Provided that the Tribunal may extend the said period, once for a maximum period of thirty days in exceptional circumstances for reasons to be recorded in writing.

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(5) An application for maintenance under sub-section (1) may be filled against one or more persons:

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Provided that such children or relative may implead the other person liable to maintain parent in the application for maintenance.

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(6) Where a maintenance order was made against more than one person, the death of one of them does not affect the liability of others to continue paying maintenance.

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(7) Any such allowance for the maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or expenses of proceeding, as the case may be.

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(8) If, children or relative so ordered fail, without sufficient cause to comply with the order, any such Tribunal may, for every breach of the order, issue a warrant for levying the amount due in the manner allowance for the maintenance and expenses of proceeding, as the case be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made whichever is earlier:

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Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Tribunal to levy such amount within a period of three months from the date on which it became due.

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6. Jurisdiction and procedure .—(1) The proceedings under section 5 may be taken against any children or relative in any district-

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(a) where he resides or last resided; or

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(b) where children or relative resides.

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(2) On receipt of the application under section 5, the Tribunal shall issues a process for procuring the presence of children or relative against whom the application is filed.

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(3) For securing the attendance of children or relative the Tribunal shall have the power of a Judicial Magistrate of first

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class as provided under the Code of Criminal Procedure, 1973 (2 of 1974).

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(4) All evidence to such proceedings shall be taken in the presence of the children or relative against whom an order for payment of maintenance is proposed to be made, and shall be recorded in the manner prescribed for summons cases:

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Provided that if the Tribunal is satisfied that the children or relative against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the Tribunal, the Tribunal may proceed to hear and determine the case ex parte.

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(5) Where the children or relative is residing out of India, the summons shall be served by the Tribunal through such authority, as the Central Government may by notification in the official Gazette, specify in this behalf.

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(6) The Tribunal before hearing an application under section 5 may, refer the same to a Conciliation Officer and such Conciliation Officer shall submit his findings within one month and if amicable settlement has been arrived at, the Tribunal shall pass an order to that effect.

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Explanation.—For the purposes of this sub-section “Conciliation Officer” means any person or representative of an organisation referred to in Explanation to sub-section (1) of section 5 or the Maintenance Officers designated by the State Government under sub-section (1) of section 18 or any other person nominated by the Tribunal for this purpose.

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7. Constitution of Maintenance Tribunal – (1) The State Government shall within a period of six months from the date of the commencement of this Act, by notification in official Gazette, constitute for each sub-division one or more Tribunals as may be specified in the notification for the purpose of adjudicating and deciding upon the order for maintenance under section 5 .

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(2) The Tribunal shall be presided over by an officer not below the rank of Sub-Divisional Officer of a State.

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(3) Where two or more Tribunals are constituted for any area, the State Government may. By general or special order, regulate the distribution of business among them.

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8. Summery procedure in case of inquiry. – (1) I holding any inquiry under section 5, the Tribunal may, subject to any

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rules that may be prescribed by the State Government in this behalf, follow such summary procedure as it deems fit.

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(2) The Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material subjects and ofr such other purposes as may be prescribed; and the Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).

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(3) Subject to any rule that may be made in this behalf, the Tribunal may, for the purpose of adjudicating and deciding upon any claim for maintenance, choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist it in holding the inquiry.”

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Further, whether the Act could be used to implement the agreement for sale, by delivering possession of the property to the purchaser, is a question of law which should have been decided, with reference to the true intent of the legislation.

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The Act and Rules clearly provide the mechanism by which the senior citizen can approach the Tribunal for ventilation of grievances and for passing of necessary orders for maintenance. Judicial verdicts have laid down that the order of eviction, if the facts and circumstances permit, can also be passed. Section 4 of the Act states who can apply for maintenance. Rule 4 of the said Rules prescribes the procedure for filing an application for maintenance. Rules 5 to 9 provide the procedure to be followed when such application is filed. Rule 10 provides for a conciliation process and Rules 12 to 14 provide how the Tribunal should dispose of such an application. In the facts of the case, no such procedure was adopted.

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The senior citizen simply wrote a letter to the Assistant Commissioner and Tehsildar to hand over the possession of the property to the purchaser. Such letter was directed to be considered in terms of Rule 20. There was no application before the Tribunal in terms of Section 4 of the said Act of 2007.

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Rule 20 lays down the duties of the police authorities and the manner in which the property should be protected. His lordship had directed that the said rules should be implemented. Moreover, an encroachment proceeding is also pending before the Tehsildar, against the petitioners, which is a prior proceeding.

¶157

Here, an order of eviction had been passed without following the provisions of the statute. The contentions of the parties and whether this a fit case for grant of order of eviction of the petitioners and their family was to be decided with reference to the statute and the Rules. The order impugned deserves to be set aside.

¶158

That apart, right of appeal has been provided in case a senior citizen is aggrieved by the order. No such provision of an appeal has been provided for the children who are aggrieved by the order. The writ petition is, thus, maintainable. Section 16 of the 2007 Act is quoted below:-

¶159

“ 16. Appeals.- (1) 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:

¶160

Provided that 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:

¶161

21

¶162

Provided further that the Appellate Tribunal may, entertain the appeal 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.

¶163

(2) On receipt of an appeal, the Appellate Tribunal shall, cause a notice to be served upon the respondent.

¶164

(3) The Appellate Tribunal may call for the record of proceedings from the Tribunal against whose order the appeal is preferred.

¶165

(4) The Appellate Tribunal may, after examining the appeal and the records called for either allow or reject the appeal.

¶166

(5) 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:

¶167

Provided that no appeal shall be rejected unless an opportunity has been given to both the parties of being heard in person or through a duly authorised representative.

¶168

(6) The Appellate Tribunal shall make an endeavour to pronounce its order in writing within one month of the receipt of an appeal.

¶169

(7) A copy of every order made under sub-section (5) shall be sent to both the parties free of cost.”

¶170

There is another aspect to be noted. Alleging non-compliance

¶171

of the authority in issuing the first order dated November 17, 2023, a contempt application was filed. The contempt application was entertained and a further opportunity was given to pass a fresh order. The relevant portions of the order are quoted below:-

¶172

“5. It appears from the order passed by the Assistant Commissioner, the application under Chapter-VI Rule 20 of the Andaman & Nicobar Icelands Maintenance and Welfare of Parents and Senior Citizen Rules, 2012, was disposed of without any orders as the petitioner did not want maintenance. 6. Mr. Shatadru Chakraborty, learned counsel for the alleged contemnor would argue that the Commissioner was actually of the view that he does not have powers to order of eviction of the children under the aforesaid Rules.

¶173

The Commissioner should have stated as such in the impugned order.

¶174

Let a fresh order be passed by the Commissioner in this regard within a period of 2 weeks from date.

¶175

22

¶176

It is elementary that a quasi-judicial authority must address every prayer made in an application in the matter he understands the same. Not addressing a basic prayer made in the application to attempt to frustrate orders of the Court. 10. The assistant Commissioner, Campbell Bay is found guilty of contempt of Court.”

¶177

The impugned order dated November 17, 2023, by the Assistant Commissioner was a decision on the representation of the senior citizen. Had it been treated as an order passed by the Tribunal under the 2007 Act, the said order would not be amenable to contempt. The Tribunal has the powers of a civil court. The order would be an appealable order under section 16 of the said Act, which the senior citizen had the option to file under the 2007 Act. Instead, the senior citizen filed a contempt application, alleging non compliance of the order passed in the writ petition. The only conclusion is that His Lordship had treated the said order to be decision, issued, pursuant to a direction of the Court to consider the representation of the senior citizen in accordance with Rule 20 of the said rules. The order impugned is a follow up of the earlier order dated November 11, 2023. A fresh order was passed upon consideration of the prayers of the senior citizen. There was no proceeding before the Tribunal as contemplated under the law. The order impugned is set aside.

¶178

Under such circumstances, the senior citizen/respondent No.3 is granted liberty to file a proper complaint before the Tribunal in terms of the 2007 Act and Rules of 2012. The learned Tribunal

¶179

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¶180

shall act and proceed in accordance with law upon following the Act and Rules meticulously and decide the matter. All the issues that will

¶181

be raised by the parties, shall be considered and disposed of. Opportunity to adduce evidence will also be given.

¶182

With the above observations, the writ petition is disposed of.

¶183

Parties are directed to act on the server copy of this judgment.

¶184

(SHAMPA SARKAR, J.)

Priyanka Dhotre and Anr. v. the Andaman and Nicobar Administration and Ors.

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