- Court
- High Court of Punjab and Haryana
- Decided
- 28 February 2024
- Bench
- Vikas Bahl
- Case no.
- CWP 15312/2021
Judgment
VIKAS BAHL, J. (ORAL)
¶1This is a Civil Writ Petition filed under Article 226/227 of the Constitution of India for the issuance of a writ in the nature of certiorari for quashing of order dated 09.04.2021 (Annexure P-6) passed by the District Magistrate, Hisar-respondent No.1, whereby prayer for evicting the house has been dismissed.
¶2Learned counsel appearing on behalf of respondent-State has submitted that in view of the judgment passed by a Coordinate Bench of this Court in CWP-4744-2018 titled as "Simrat Randhawa Vs. State of Punjab and others", the District Magistrate does not have the power to CWP-15312-2021 (O&M) [2] 2024:PHHC:027830 pass the order of eviction under Section 22 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter to be referred as "the 2007 Act") and as per the latest instructions dated
29.11.2023 issued by the Director General, Social Justice, Empowerment, Welfare of SCs & BCs and Antyodaya (SEWA) Department, Haryana, Chandigarh, it is the Maintenance Tribunal which has the power to pass the order of eviction in view of Section 23 of the 2007 Act. It is further submitted that the said instructions have been issued keeping in view the law laid down by the Hon'ble Supreme Court of India in case titled as "S.Vanitha Vs. The Deputy Commissioner Bengaluru Urban District & ors." reported as 2021(15) SCC 730 and thus, the District Magistrate, after passing of the judgment in Simrat Randhawa's case (Supra), would not have the jurisdiction to pass the order of eviction. Relevant portion of the said instructions is reproduced hereinbelow:- "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 Subject: CWP No. 26035 of 2023 titled as Smt. Sheela Devi Vs District Collector-cum-Presiding Officer under Maintenance Tribunal, Gurugram and CWP-15312-2021 (O&M) [3] 2024:PHHC:027830 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 CWP-15312-2021 (O&M) [4] 2024:PHHC:027830 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 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 CWP-15312-2021 (O&M) [5] 2024:PHHC:027830
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." 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. CWP-15312-2021 (O&M) [6] 2024:PHHC:027830 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 which he was empowered to evict, CWP-15312-2021 (O&M) [7] 2024:PHHC:027830 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 CWP-15312-2021 (O&M) [8] 2024:PHHC:027830 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, 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"
¶3Learned counsel for the petitioners has submitted that in view of the above objections, he seeks permission of this Court to withdraw the present writ petition with liberty to the petitioners to file a fresh petition before the Maintenance Tribunal and has further submitted that the said petition filed under Section 23 of the 2007 Act before the Maintenance Tribunal be considered independent of the observations made in the impugned order dated 09.04.2021.
¶4Today, no one has put in appearance on behalf of the private CWP-15312-2021 (O&M) [9] 2024:PHHC:027830 respondents.
¶5Keeping in view the abovesaid facts and circumstances, the present Civil Writ Petition is dismissed as withdrawn with liberty to the petitioners to file a petition under Section 23 of the 2007 Act before the Maintenance Tribunal after impleading all the necessary parties and also making necessary prayers including the prayer of eviction and in case, any such petition is filed then the Maintenance Tribunal is directed to consider the same in accordance with law after hearing all the necessary parties and without being prejudice by the observations made in the impugned order dated 09.04.2021 and after taking into consideration the instructions dated 29.11.2023 which have been reproduced hereinabove.
¶6It is made clear that this Court has not opined on the merits of the case and the Maintenance Tribunal would consider the case of the petitioners independently, in accordance with law.
¶7All the pending miscellaneous applications, if any, shall stand disposed of in view of the abovesaid order.
28.02.2024 (VIKAS BAHL) Pawan JUDGE Whether speaking/reasoned:- Yes/No Whether reportable:- Yes/No
Case details
Parties and counsel
CWP-15312-2021 (O&M) [1] 2024:PHHC:027830 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP-15312-2021 (O&M) Date of decision: 28.02.2024 Suman Dhankhar and another ...Petitioners Versus District Magistrate, Maintenance and Welfare of Parents and Senior Citizen Tribunal, Hissar (Haryana) and others ...Respondents CORAM: HON'BLE MR. JUSTICE VIKAS BAHL Present: Mr. Narender Kaajla, Advocate for the petitioners. Mr. Amandeep Joshi, DAG, Haryana. ****
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.