- Court
- High Court of Punjab and Haryana
- Decided
- 16 January 2024
- Bench
- Vikas Bahl
- Case no.
- CWP 948/2024
Judgment
VIKAS BAHL, J. (ORAL)
¶1Present writ petition has been filed under Article 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari for quashing the order dated 15.02.2023 (Annexure P-6) passed by respondent No.1 whereby petition titled as "Madhu Jindal Vs. Neeraj Devi" under Sections 5(1) and 23(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and rules (as amended) (hereinafter referred as 'Act of 2007') instituted by the petitioner has been adjourned sine die.
¶2Learned counsel for the petitioner has submitted that the petitioner had filed an application under Sections 5(1) and 23(1) of the Act of 2007 before the Maintenance Tribunal and one of the prayers made in the said application was for direction to the respondents to vacate the premises in question. It is further submitted that the Maintenance CWP-948-2024 -2-2023:PHHC:005287 Tribunal, vide order dated 15.02.2023 (Annexure P-6) in view of the instructions dated 19.01.2023 issued by the Director General, Social Justice, Empowerment, Welfare of SC & BC and Antyodaya (SEWA) Department, Haryana, had adjourned the said case sine die. It is stated that subsequent to the passing of the said order the Director General, Social Justice, Empowerment, Welfare of SCs & BCs and Antyodaya
(SEWA) Department, Haryana, has issued detailed instructions dated
29.11.2023, after taking into consideration the law laid down by the Hon'ble Supreme Court in Smt. S Vanitha Vs. The Deputy Commissioner Bengaluru Urban District & Ors., reported as 2021(15) SCC 730, and as per the said instructions the Maintenance Tribunals can pass eviction orders in view of the provisions of Section 23 of the Act of 2007, but the District Magistrates have been restrained from passing eviction orders in view of the judgment of the Co-ordinate Bench of this Court dated 23.01.2020 passed in CWP No.4744 of 2018 titled as "Simrat Randhawa Vs State of Punjab & Others". It is further stated that this Court while disposing of CWP No.26035 of 2023 titled as "Smt. Sheela Devi Vs District Collector-cum-Presiding Officer under Maintenance Tribunal, Gurugram and ors", had taken into consideration the said instructions and had permitted the petitioner therein to institute a petition under Section 23 of the Act of 2007 before the Maintenance Tribunal. It is submitted that in the present case, the petitioner had already instituted a petition before the Maintenance Tribunal, which is the competent authority to pass the order even as per the said instructions. It is further submitted that the petitioner be CWP-948-2024 -3-2023:PHHC:005287 permitted to move an application before the Maintenance Tribunal bringing to its notice the said instructions dated 29.11.2023 and it is prayed that the Maintenance Tribunal be directed to consider the said application in a time bound manner, in accordance with law.
¶3Learned State counsel has not disputed the fact that subsequent to the passing of the instructions dated 19.01.2023, the detailed instructions dated 29.11.2023 have been issued by the Director General, Social Justice, Empowerment, Welfare of SCs & BCs and Antyodaya (SEWA) Department, Haryana, and as per the said instructions, the Maintenance Tribunals are authorized to pass eviction orders in view of the provisions of Section 23 of the Act of 2007 as there is no bar with respect to the same, but the District Magistrates cannot pass the eviction order on account of the judgment passed in Simrat Randhawa's case (supra). It is further submitted that the said instructions had been considered by this Court in the judgment dated 29.11.2023 passed in Smt. Sheela Devi's case (supra) and in the said case, the permission was granted to the petitioner to withdraw the writ petition with liberty to file a petition under Section 23 of the Act of 2007 before the Maintenance Tribunal. The said instructions dated 29.11.2023 are reproduced herein under: - "From Director General Social Justice, Empowerment, Welfare of SCs & BCs and Antyodaya (SEWA) Department, Haryana, Chandigarh To, Advocate General, Haryana The Hon'ble Punjab and Haryana High Court Chandigarh No.21754 OAH/SEWA/2023 Dated 29-11-2023 CWP-948-2024 -4-2023:PHHC:005287 Subject: CWP No. 26035 of 2023 titled as Smt. Sheela Devi Vs District Collector-cum-Presiding Officer under Maintenance Tribunal, Gurugram and ors. With reference to your D.O. No.3679 dated 23.04.2023 on subject cited above, it is submitted that the Hon'ble High Court, passing the orders dated 29.11.2023 in the subject captioned writ petition, raised some queries on the following points:
i) Whether after passing of the judgments of the Hon'ble Supreme Court in Smt.S.Vanitha's case (supra) and of this Court in Ravi Kumar's case (supra), which has been upheld by the Hon'ble Division Bench of this Court in LPA-1387-2023, the authorities are still not passing orders in cases wherein prayer for eviction has been made and if so, the reasons for the same.
ii) Whether the letter (Annexure P-9) issued by the Director General, Social Justice, Empowerment, Welfare of SC & BC and Antyodaya (SEWA) Department, Haryana has any legal basis or not.
iii) Whether, irrespective of the position of law, since it is the duty of the authority under the Act to pass an order and not to simply keep an application seeking eviction pending, then as to why the authority concerned has not passed an order on the same? With regard to this, it is submitted that the Government of India had enacted the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The erstwhile Social Justice & Empowerment Department was a nodal department to implement the provisions of the said Act. The erstwhile Social Justice & Empowerment Department. being a nodal department, notified the Maintenance and Welfare of Parents and Senior Citizens Rules, 2009. The State Government, through the erstwhile Social Justice & Empowerment Department, introduced an Action Plan, 2015 vide which the District Magistrates in the State of Haryana were empowered to pass the eviction orders to protect the property of the senior citizens/parents. The State Government vide notification dated 01.01.2023 merged the Welfare of Scheduled Castes and Backward Classes Department with the erstwhile Social Justice & Empowerment Department and name of the erstwhile Social Justice & Empowerment Department has been substituted with the Social Justice, Empowerment, Welfare of CWP-948-2024 -5-2023:PHHC:005287 Scheduled Caste and Backward Classes and Antyodaya (SEWA) Department, Haryana. Further, the point-wise response of the said queries is herein under:-
i) It is submitted that as per provisions of section 7 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, the State Government is empowered to constitute a Maintenance Tribunals to decide the cases pertaining to maintenance of senior citizens. Pursuant thereto, the Maintenance Tribunals and Appellate Tribunals under Rule 3 of the Haryana Maintenance and Welfare of Parents and Senior Citizens Rules, 2009 had been constituted by the State of Haryana with the composition as mentioned therein. Accordingly, the said Tribunals have been constituting/re-constituting, time to time, by the State of Haryana by way of issuing gazette notification. Section 23 of the said Act already empowers the tribunals to declare the transfer of property as void, at the option of such senior citizen, in case it appears to the tribunal that the transfer of property made by the senior citizen, by way of gift or otherwise, was influenced by fraud/coercion/under undue influence. Section 23 of the said Act is reproduced as under. "Transfer of property to be void in certain circumstances
1. Where any senior citizen who, after the commencement of this Act, has by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.
2. Where any senior citizen has a right to receive maintenance out of an estate and such estate or part, thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right.
3. If any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of section 5." CWP-948-2024 -6-2023:PHHC:005287 Even, in S.Vanitha Vs the Deputy Commissioner, Bengaluru Urban District and Others the Hon'ble Apex Court has also observed that the power to order of eviction is construed in the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 i.e. right to receive maintenance out of an estate. The relevant portion of the judgment is reproduced as under:- "...25. The substance of sub-section (2) of Section 23, as submitted by the Second and Third respondents, is that the Tribunal had the jurisdiction to pass an order directing the eviction of the appellant who is their daughter-in-law. According to the submission, the power to order eviction is implicit in the provision guaranteeing a "right to receive maintenance out of an estate" and the enforcement of that right. In supporting the submission, they have referred to the view which has been taken by several High Courts, indicating that the Tribunal may order the eviction of a child or a relative from the property of a senior citizen, where there has been a breach of the obligation to maintain the senior citizen. The Tribunal under the Senior Citizens Act 2007 may have the authority to order an eviction, if it is necessary and expedient to ensure the maintenance and protection of the senior citizen or parent. Eviction, in other words would be an incident of the enforcement of the right to maintenance and protection..." Whereas, power of eviction had been conferred by the State Government to all the District Magistrates in the State of Haryana, by notifying an Action Plan, 2015 vide notification dated 26.05.2015 but the same was struck off to the extent of Clauses 1 to 3 ie. (1) Procedure for eviction from property/residence building belonging to/occupied by senior citizens/parents, (2) Eviction order from property/residential building of senior citizens/parents and (3) Enforcement of orders by a coordinate bench of the Hon'ble High Court by passing the judgment dated 23.01.2020 in CWP No. 4744 of 2018 titled as Simrat Randhawa Vs State of Punjab & Others and there is no stay in operation of judgment dated 23.01.2020 in LPA No. 702 of 2021 titled as State of Haryana and Others Vs Simrat Randhawa filed by the State of Haryana. In the present matter in hand, an application has been made before the District Magistrate for eviction and the District Magistrate is unable to pass the eviction orders as the Action Plan, 2015, under CWP-948-2024 -7-2023:PHHC:005287 which he was empowered to evict, has already been struck off, as mentioned above. Hence, the Maintenance Tribunals can pass the eviction orders in view of provisions of Section 23 of the said Act as there is no bar at the same but the District Magistrates can not pass the eviction orders on account of judgment dated 23.01.2020 in Simrat Randhawa's case (Supra).
ii) It is submitted that as mentioned above the power of eviction was assigned to the District Magistrates in the State of Haryana by virtue of the Action Plan, 2015 by the State Government but the same was struck off to the extent of Clauses 1 to 3 by the Hon'ble Bench of Justice Rajeev Narain Raina vide judgment dated 23.01.2020 passed in CWP No. 4744 of 2018 titled as Simrat Randhawa Vs State of Punjab & Others. The said judgment has been challenged by this department by way of filing an LPA No. 702 of 2021 titled as State of Haryana and Others Vs Simrat Randhawa but the Division Bench of the Hon'ble High Court did not stay the same. Despite of this, the eviction orders were being passed by the District Magistrates as per mandates of the said Action Plan. Therefore, this department, being nodal department to implement the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 has issued a letter dated 19.01.2023 to all the District Magistrates in the State of Haryana to stop the proceedings of eviction under the Action Plan, 2015 to the extent of Clauses 1 to 3 in light of the judgment dated
23.01.2020 passed in Simrat Randhawa's case (Supra), only to avoid the contempt proceedings against the said judgment. Next date of hearing has been fixed by the Hon'ble High Court in LPA No. 102 of 2021 is 06.02.2024. It is clarified here that this department never issued the directions to the Maintenance Tribunals not to do proceed with for eviction under Section 23 of the said Act.
iii) It is submitted that the District Magistrates in the State of Haryana were empowered to pass the eviction orders under the Action Plan, 2015 notified by the State Government vide Notification dated
26.05.2015 and they were duty bound to do so but they have been deprived of the said powers as the said Action Plan to extent of Clauses 1 to 3 is not in existence due to passing of judgment dated
23.01.2020 passed in Simrat Randhawa's case (Supra). Even, despite of filing an LPA No.702 of 2021) there is no stay in the said judgment, CWP-948-2024 -8-2023:PHHC:005287 till date. Thus, the District Magistrates cannot entertain and decide the applications seeking eviction in exercising the powers conferred to them under the said Action Plan on account of setting aside the same in Simrat Randhawa's case (Supra). Therefore, you are requested to kindly apprise the Hon'ble High Court in respect of all the said facts. sd/- Joint Director Social Justice, Empowerment, Welfare of SCs & BCs and Antyodaya (SEWA) Department, Haryana, Chandigarh" It is also not disputed that as per the said instructions, the Maintenance Tribunal has the power to pass an eviction order in view of the provisions of Section 23 of the Act of 2007.
¶4Keeping in view the above-said facts and circumstances and the limited prayer made by learned counsel for the petitioner at this stage, the present petition is disposed of with the following directions: -
(i) Petitioner is at liberty to move an application before the Maintenance Tribunal to bring to the notice of the said Maintenance Tribunal the above-said instructions/letter dated
29.11.2023 issued by the Director General, Social Justice, Empowerment, Welfare of SCs & BCs and Antyodaya
(SEWA) Department, Haryana, Chandigarh.
(ii) On filing of such an application, the Maintenance Tribunal would consider the same within a period of two weeks from the date of the said application is filed and once the Maintenance Tribunal comes to the conclusion that the matter has to be proceeded with, then, the same be proceeded with and be finally adjudicated as expeditiously as possible. CWP-948-2024 -9-2023:PHHC:005287
(iii) This Court has not opined on the merits of the case and the Maintenance Tribunal would adjudicate the case after hearing all the parties concerned in accordance with law. ( VIKAS BAHL ) January 16, 2024 JUDGE naresh.k Whether reasoned/speaking? Yes/No Whether reportable? Yes/No
Case details
Parties and counsel
CWP-948-2024 -1- 2023:PHHC:005287 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (104) CWP-948-2024 Date of decision: - 16.01.2024 Madhu Jindal ....Petitioner Versus Presiding Officer/Member Maintenance Tribunal and others .....Respondents CORAM : HON'BLE MR. JUSTICE VIKAS BAHL Present:- Ms. Ambika Jindal, Advocate, for the petitioner. Ms. Palika Monga, DAG, Haryana. 0000
Source: High Court of Punjab and Haryana, through the eCourts High Court services, via the Indian High Court Judgments open dataset by Dattam Labs (CC BY 4.0). Text was extracted from the official PDF and may contain conversion errors. Check the official PDF before relying on it.