Smt S Nagammal And ANR v. The D C South Andaman District And ANR

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE [CIRCUIT BENCH AT PORT BLAIR] *** PRESENT: HON'BLE JUSTICE SUBRATA TALUKDAR WPA/555/2022 Smt S Nagammal and another ... Petitioners Vs.

The Deputy Commissioner, South Andaman District and another ... Respondents For the petitioners : Mr. Surajit Samanta For the Respondent No.1 : Mr. Shatadru Chakraborty Mr. Ramendu Agarwal For the Respondent No.2 : Mr. Arul Prasanth Heard on : 22nd of November, 2022 Judgment on : 25th of November, 2022 SUBRATA TALUKDAR, J.

1.

The petitioners in this writ application are respectively the daughter and son-in-law of the private respondent No.2. 2.

The petitioners challenge the Order dated 28th of September, 2022 passed by the Deputy Commissioner, South Andaman District under the provisions of the Maintenance

and Welfare of Parents and Senior Citizens Act, 2007 (for short "the 2007 Act"). The Deputy Commissioner, South Andaman District, the respondent no.1 to this writ petition, was exercising powers as the Appellate Authority(AA) under the 2007 Act and was directed to dispose of the appeal in terms of the Order of the Hon'ble Single Bench sitting in Circuit dated 29th June, 2022 in WPA/172/2022. 3.

Mr. Samanta, Learned Counsel appearing for the petitioner, argued that there is no provision for evicting the petitioners from the property in issue. It is submitted that both the learned Tribunal acting under the 2007 Act and the learned Appellate Authority, also exercising jurisdiction under the 2007 Act acted in a misconceived manner by directing the petitioners, who are the daughter and son-in-law of the private respondent no.2, to be evicted from their residential unit.

4.

The second limb of submission advanced by Mr. Samanta is that the property and the land in issue were allotted under a Government Order which confers the allotment not to an individual but to a family. It is therefore argued that the respondent no.2 in his capacity as an

individual cannot claim the allotted land solely and exclusively to be in his favour. Referring to the said Order dated 17th August, 1987 of the Andaman and Nicobar Administration, Learned Counsel points out that 200 sq.mtrs of land were allotted to a 'family' provided such land was to be used for construction of a dwelling unit in a non-urban area. It is pointed out that the land and the construction raised over the said land in question fit the particulars of the allotment as stated above and hence the respondent no.2 could not have gone before the Learned Tribunal and also before the Learned Appellate Authority under the 2007 Act claiming that the land and the dwelling unit built thereon is solely and wholly owned by him.

5.

It is therefore argued on the strength of several judicial authorities that since the 2007 Act does not provide for eviction and is only confined to the aspect of maintenance claimed by the senior citizens, the Learned Tribunal and the Learned Appellate Authority fell into the error by directing the eviction of the petitioners from their dwelling unit. It is further submitted that the learned Tribunal under the 2007 Act vide its Order dated 31st January, 2022 unequivocally held that the allegations of torture, quarrel levelled against

the present petitioners by the private respondent no2 are not substantiated. In the above view of the matter there could not be any question of evicting the present petitioners from the property considering that there are no materials to demonstrate that the senior citizen, who is the private respondent no.2, was not maintained by his daughter and son-in-law.

6.

Per contra, Mr. Arul Prasanth, Learned Counsel appearing for the private respondent on.2, submits that the private respondent no.2 is a senior citizen. The age of the private respondent no.2 is around 79 years. Taking this Court to Annexure P-1 of the present writ petition, Learned Counsel points out that the entire land is recorded only in the name of the private respondent no.2. Taking this Court further to the area of the land which is 0.012 hectare in Survey No.40/2, Tehsil Port Blair, it is submitted that the area of the land, which is 0.012 hectares does not match with the area of the land relied upon by Learned Counsel for the petitioners defined to be 200 sq.mtrs vide purported Order of allotment dated 17th August, 1987.

7.

It is submitted that assuming but not admitting that the Order dated 17th August, 1987, inter alia, provided for allotment of 200 sq.mtrs per family for construction of dwelling unit, the recorded area 0.012 hectares is not equivalent to 200 sq.mtrs and thereby the logical conclusion is that the said land was recorded solely in the name of the private respondent no.2 but not under the administrative Order dated 17th August, 1987.

8.

Additionally, Learned Counsel appearing for the private respondent no.2 submits that the present petitioners are misbehaving with his client during their stay in the said property and have also complained against his possession of the land before the Tehsildar, Port Blair. Such compliant is evidence of the fact that the present petitioners want to throw out the private respondent no.2 from his own property. A copy of the complaint of encroachment over Government land brought against the private respondent no.2 by the son-inlaw, being the petitioner no.2 herein, bearing RC No.227/TPB/2022, is produced before this Court by way of documentary evidence.

9.

It is submitted that the private respondent no.2 is being looked after by his second daughter alone. Being unable to bear the harassment caused by the present petitioners to his peaceful stay in his own dwelling house, the private respondent no.2 has been compelled to institute a proceeding under the 2007 Act against the present petitioners. 10.

It is also argued that the private respondent no.2, who is a retired pensioner, has taken a loan from a Bank to raise suitable construction over the said property. He is required to pay back the loan in instalments. The present petitioners have acted in a manner so as to push out the private respondent no.2 from the main dwelling unit into an adjacent area over the said land.

11.

It is submitted that the Order of the Learned Tribunal and the Order of the Learned Appellate Authority, who upon consideration of all facts, directed the present petitioners to vacate the property in issue requires to be sustained. 12.

Having heard the parties and considering the materials placed, this Court is of the view that the 2007 Act must be holistically construed. The Statement of Objects of the 2007 Act provide for Maintenance and Welfare (emphasis supplied)

of a Senior Citizen by their sons, daughters and relatives who are in a position to maintain them.

13.

To read down the provisions of the 2007 Act only to mean physical maintenance without considering all aspects connected to the welfare of the senior citizen would be doing injustice to the statute.

14.

It is not lost upon this Court that the present petitioners by their very act of filing of a complaint of encroachment over Government land against the holder of the property/the private respondent no.2 are acting in a manner which does not contribute to the welfare of the private respondent no.2. The private respondent no.2 may be capable of living out of his own pension but, under the terms of the 2007 Act, is required to be in a position of proper maintenance and welfare in his own house. There is no doubt in the mind of this Court that the action of the present petitioners is disturbing the peaceful stay and enjoyment of his own property which cannot contribute to his welfare as envisaged under the statute.

15.

There is no doubt that the private respondent no.2 is a recorded owner of the said land and the said land wholly and

exclusively belongs to him. This Court is also of the view that the provisions of Government Order dated 17th August, 1987 do not apply to the land of the private respondent no. 2. There is substance in the argument of the Learned Counsel for the private respondent no.2 that the private respondent no.2 has the right to live and deal with his property and the present petitioners are merely licencees under him. 16.

In the backdrop of the above discussion, the Order of the Learned Tribunal and the Learned Appellate Authority under the 2007 Act stand affirmed.

17.

The interim Order stands accordingly vacated. 18.

WPA/555/2022 stands thus dismissed.

19.

The Station House Officer, Police Station Aberdeen, Port Blair is directed to execute the Order within a week from the date of its communication.

20.

Since parties have argued at length without affidavits, all allegations to the contrary stand denied and disputed. 21.

All parties to act on a server copy of this order downloaded from the website of the Hon'ble High Court.

22.

Urgent Xerox certified copy of this order be supplied to the Learned Counsel appearing for the respective parties upon compliance of usual formalities.

(SUBRATA TALUKDAR, J.) Later:

Stay of operation of the Order is prayed for by Mr. K. Sabir, Learned Counsel, appearing for the petitioners. Prayer for stay is considered and refused.

( SUBRATA TALUKDAR, J. )