Remanded

Asha Sudarshanan, v. State of Kerala

Kerala HC4 Feb 2019WP(C)/404/2019

Case brief

AI extract

What is this about?

The High Court of Kerala set aside an Exhibited P9 order of the Maintenance Tribunal as it was issued in violation of Rule 12 of the Kerala Maintenance and Welfare of Parents and Senior Citizens Rules, 2009, by relying on a Conciliation Report instead of a Conciliation Agreement.

What did the court decide?

Directing the Maintenance Tribunal to reconsider the complaint in terms of Rules 11 and 12, afford opportunity of being heard, and pass a fresh order within two months.

Asha Sudarshanan, Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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MONDAY, THE 04TH DAY OF FEBRUARY 2019 / 15TH MAGHA, 1940

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WP(C).No. 404 of 2019

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PETITIONERS:

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1 ASHA SUDARSHANAN, W/O AJAYAKUMAR, AGED 31 YEARS, RESIDING AT MADAPPURACKAL HOUSE, NEAR PULLAMKULAM, CHERTHALA SOUTH P.O., ALAPPUZHA DISTRICT-688 539.

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2 AJAYAKUMAR.K, S/O KUTTAPPAN, AGED 35 YEARS, RESIDING AT MADAPPURACKAL HOUSE, NEAR PULLAMKULAM, CHERTHALA SOUTH P.O., ALAPPUZHA DISTRICT-688 539.

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By ADVS.SRI.R.SURENDRAN KUM.S.MAYUKHA

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, SOCIAL WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001.

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2 THE MAINTENANCE TRIBUNAL (REVENUE DIVISIONAL OFFICER), OFFICE OF THE RDO, ALAPPUZHA 688 001.

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3 RAJAMMA, W/O PONNAPPAN, AGED 63 YEARS, RESIDING AT PARALIL VALIYIL, AREEPARAMBU P.O., ARREPARAMBU VILLAGE, CHERTHALA, ALAPPUZHA-688 524.

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WPC 404/19

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4 THE CONCILIATION OFFICER, MAINTENANCE TRIBUNAL, OFFICE OF THE REVENUE DIVISIONAL OFFICER, ALAPPUZHA 688 001.

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R3 BY ADVS.SRI.P.U.SHAILAJAN SMT.VIDYA KURIAKOSE SRI.M.SURESH KUMAR SRI.P.GANESAN SRI.V.SREEJITH (K/1398/2000) R1, R2 & R4 BY SMT.AMMINIKUTTY-SR.GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WPC 404/19

JUDGMENT

The essential legal challenge mounted by the petitioners against Exhibit P9 order of the Maintenance Tribunal, constituted under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is that the said order has been issued in violation of Rule 12 of the Kerala Maintenance and Welfare of Parents and Senior Citizens Rules, 2009 ('the Rules' for short).

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According to the petitioners, who make various other allegations and assertions on law and facts, Exhibit P9 order has been issued merely accepting Exhibit P8 Conciliation Report of the fourth respondent; but without following the procedure under Rule 12 of the Rules. They also have a case that Exhibit P8 is only a report of the Conciliation Officer and not a Conciliation Agreement, as is required under Rule 11(2) of the Rules. They, therefore, assert that even if Exhibit P8 is on record, wherein their consent is said to have been recorded, albeit then disputing it, the said report could not have been relied upon by the Tribunal exclusively to issue an order akin to Exhibit P9. On such assertions they pray that Exhibit P9 order be set aside.

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WPC 404/19

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The learned counsel for the third respondent, who is the senior citizen involved in this case, submits that the allegation of the petitioners that they did not sign Exhibit P8 is completely untrue and that they had, in fact, expressly agreed before the Conciliation Officer that they will vacate from the house in question within the period shown therein. He, however, concedes that the Maintenance Tribunal has not perhaps acted implicitly in terms of Rule 12 of the Rules, while issuing Exhibit P9 and therefore, agrees that the said Tribunal be directed to re-consider the matter in terms of law within a short time frame.

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The learned Senior Government Pleader appearing for the Maintenance Tribunal submits that Exhibit P8 is only a Conciliation Report and that the said report must have been filed before the Tribunal by the Conciliation Officer pursuant to the Conciliation Agreement, as is warranted under Rule 11(2) of the Rules. She says that there is, therefore, no infraction of any provision and that Exhibit P9 order is certainly in order.

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On a consideration of the above submissions and taking note of Exhibit P9, it becomes obvious that the said order has been issued not in the manner, as is warranted under Rule 12 of the Rules.

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WPC 404/19

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The question whether the said order was based on a Conciliation Agreement or merely on Exhibit P8 Report, is also an issue that should have gained the attention of the Tribunal before issuing the impugned order. In the absence of any such consideration, I am afraid that I cannot grant approval to the said order.

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In the afore circumstances, I order this writ petition and set aside Exhibit P9 order; consequently directing the Maintenance Tribunal to re-consider the complaint of the senior citizen-the third respondent, in terms of Rules 11 and 12 of the Rules and after affording sufficient opportunity of being heard to all parties, as is statutorily mandated, as expeditiously as possible, but not later than two months from the date of receipt of a copy of this judgment.

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Needless to say, while passing a fresh order, the Maintenance Tribunal will also consider whether the provisions of Section 23 of the Act are applicable to this case, particularly taking note of the contention of the petitioners that they are not the legal heirs of the senior citizen, because the mother of the first petitioner is still alive.

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Sd/Devan Ramachandran, Judge

tkv

WPC 404/19

APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE GIFT DEED DATED 28.4.2015 EXECUTED BY THIRD RESPONDENT AND REGISTERED AS DOCUMENT NO 981 OF 215 OF SRO CHERTHALA.
EXHIBIT P2	TRUE COPY OF THE DOCUMENT NO 1939 OF 2009 OF SRO CHERTHALA DATED 16.9.2009
EXHIBIT P3	TRUE COPY OF THE PROPERTY TAX DEMAND DETAILS OF THE BUILDING BEARING DOOR NO
	14/79 DOWNLOADED FROM THE WEBSITE OWNED, MAINTAINED AND UPDATED BY CHERTHALA SOUTH GRAMA PANCHAYAT.
EXHIBIT P4	TRUE COPY OF THE PROPERTY TAX DEMAND DETAILS OF THE BUILDING BEARING DOOR NO 14/25-A DOWNLOADED FROM THE WEBSITE OWNED, MAINTAINED AND UPDATED BY CHERTHALA SOUTH GRAMA PANCHAYAT.
EXHIBIT P5	TRUE COPY OF THE RECEIPT DATED 22.11.2018 ISSUED BY SECRETARY CHERTHALA SOUTH GRAMA PANCHAYAT.
EXHIBIT P5(a)	TRUE COPY OF THE RATION CARD OF THE THIRD RESPONDENT ISSUED TO HER OWN HOUSE BEARING NO 14/79
EXHIBIT P6	TRUE COPY OF THE PETITION DATED 1.8.2018 FILED BY THE THIRD RESPONDENT BEFORE THE SECOND RESPONDENT
EXHIBIT P7	TRUE COPY OF THE FROM C DATED 22.9.2018 ISSUED BY THE SECOND RESPONDENT
EXHIBIT P8	TRUE COPY OF THE CERTIFIED COPY OF FORM F REPORT IN PROCEEDINGS NO E 4464/18
EXHIBIT P9	TRUE COPY OF THE ORDER DATED 4.12.2018 ISSUED BY THE SECOND RESPONDENT IN
	PROCEEDINGS NO K.DIS 4464/18/E

Asha Sudarshanan, v. State of Kerala

Case brief

What is this about?

What did the court decide?

Asha Sudarshanan, v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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