IN THE HIGH COURT OF KARNATAKA
ALOK ARADHE, J.
Jessie Mary Fernandes - Appellant
Versus
State Of Karnataka By Its Principal Secretary Home Department - Respondent
Writ Petition No. 38272 of 2017
Decided On : 10-04-2019
Constitution of India,1950 - Articles 227, 136 and 226 - Maintenance and Welfare of Parents and Senior Citizens Act, 2007 - Section 21 - Karnataka Police Act 1963 - Sections 169 and 170 - Code of Criminal Procedure 1973 - Sections 197 and 16(4) - Maintenance and Welfare of Parents and Senior Citizens Act, 2007 - Seeking the relief of eviction - Sale deed - Petitioner and her husband by a registered sale deed dated 07.08.1992, purchased the house at Albert Street, Richmond Town - Respondent No. 8, who is the fourth son of petitioner got married with respondent - It is averred in the writ petition that during first pregnancy of respondent No.9, respondent Nos. 8 and 9 requested the petitioner and her husband to occupy a portion of their house till delivery of their first child - Petitioner and her husband permitted respondents Nos.8 and 9 to occupy a portion of house - respondent Nos.8 and 9 assaulted the petitioner and her husband and a complaint was lodged with respondent - Thereafter by two separate gift deeds, the petitioners husband transferred one third share in the property to petitioner and another one third share to his youngest son namely, Harish Fernandes a settlement deed petitioners husband transferred remaining one third share of property in favor of the petitioner - Petitioner became owner two third share of the property in question. The petitioner by a release transferred her two third share in favour of her youngest – Held, Impugned order has been passed, which is in conflict with the object of the Act - Impugned order has been passed in violation of principles of natural justice as recording the reasons is part of principles of natural justice - Impugned order therefore cannot be sustained in the eye of law. It is accordingly quashed - Appellate Authority is directed to decide an appeal afresh by a speaking order in the light of mandate contained in Section 16(6) of the Act within a period of one month from today - Matter has been remitted to the Appellate Tribunal, therefore, it is not necessary for this court to deal with rival contentions and the reliefs sought which even otherwise have been made and prayed for before this court for the first time - Appellate Authority shall also adjudicate issue whether or not the relief of eviction can be granted to the petitioner in a proceeding under the Act and shall decide the appeal on merits - Petition is disposed of
Alok Aradhe, J.
Smt. Anu Chengappa P., learned counsel for the petitioner.
Sri.Y.D.Harsha, learned Additional Government Advocate for the respondent Nos.1, 4 to 7.
Sri. Mahboob Ali Khan, learned counsel for the respondent Nos.8 and 9.
2. The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.
3. In this petition under Article 227 of the Constitution of India, the petitioner inter alia has prayed for the following reliefs:
"1. Set aside in part the impugned order dated 07.06.2017 in MAG(4) Misc.C.R.132/2016-17(Annexure-A) in so far as the matter has been remanded for enquiry.
2. Restore the order dated:
18.11.2015 in MSC/35/2014-15 (Annexure-C).
3. Direct the First, Second, Third, Fourth, Fifth, Sixth and Seventh Respondents to evict the Eighth and Ninth Respondents from No.16, Albert Street, Richmond Town, Bangalore -25 according to the order dated: 18.11.2015 in MSC/35/2014-15 (Annexure-C) without resorting to a bailiff.
4. Direct the First, Fourth, Fifth and Sixth Respondents to initiate enquiry and undertake suitable action against the Tenth Respondent for the illegal and unauthorized actions committed by him against the Petitioner and her family members.
5. Direct the First Respondent to initiate enquiry and undertake suitable action against the Second and Third Respondents for the unreasonable delay in deciding and executing of orders pertaining to the Petitioner's application and appeal.
6. Direct the Tenth Respondent to pay the Petitioner Rs.3,00,00,000/-(Rupees Three Crores Only) as damages and compensation for the immense mental agony and humiliation and anxiety caused by the him to the Petitioner by his actions against the Petitioner, her late husband and youngest son.
7. Direct each of the Second and Third Respondents to pay the Petitioner Rs.1,00,00,000/-(Rupees One Crore Only) for the harassment and mental agony caused by them due to the inordinate delay and untenable orders passed by them culminating in the death of the Petitioner's husband.
8. Direct the Fourth, Fifth, Sixth and Seventh Respondents to pay Rs.7,00,00,000/-(Rupees Seven Crores only) as damages and compensation for the immense mental agony and humiliation and anxiety caused by them to the Petitioner and her late husband and youngest son."
4. In order to appreciate the petitioner's grievance, few relevant facts need mention which are stated hereinafter. The petitioner and her husband by a registered sale deed dated 07.08.1992, purchased the house at Albert Street, Richmond Town, Bangalore. Some time in the year 1996, respondent No. 8, who is the fourth son of the petitioner got married with respondent No.9. It is averred in the writ petition that during the first pregnancy of respondent No.9, respondent Nos. 8 and 9 requested the petitioner and her husband to occupy a portion of their house till delivery of their first child. The petitioner and her husband permitted respondents Nos.8 and 9 to occupy a portion of the house. It is also pleaded in the petition that on 12.06.2011, respondent Nos.8 and 9 assaulted the petitioner and her husband and a complaint was lodged with respondent No. 7. Thereafter on 07.10.2011 by two separate gift deeds, the petitioner's husband transferred one third share in the property to the petitioner and another one third share to his youngest son namely, Harish Fernandes. Thereafter, by a settlement deed dated 22.05.2014, petitioner's husband transferred remaining one third share of the property in favor of the petitioner. Thus, the petitioner became the owner two third share of the property in question. The petitioner by a release dated 06.08.2014, transferred her two third share in favour of her youngest son namely, Harish Fernandes. However, she retained right of residence in the house in question. Thus, the youngest son of the petitioner namely, Harish Fernandes became the absolute owner of the property in question.
5. Sometime in the year 2014, the petitioner as
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