Smt. Siya Dulari And Ors. vs Sub Divisional Magistrate Sadar ...
2022 Latest Caselaw 2141 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 17
 

 
Case :- WRIT - C No. - 14140 of 2021
 

 
Petitioner :- Smt. Siya Dulari And Ors.
 
Respondent :- Sub Divisional Magistrate Sadar Lucknow And Ors.
 
Counsel for Petitioner :- Prem Kumar Srivastava,Aditya Vikram Shahi,Ankit Kumar Yadav
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Shree Prakash Singh,J.

1. Heard Sri Aditya Vikram Shahi and Sri Ankit Yadav, learned counsel for the petitioner, Sri Shailendra Kumar Singh-III, learned Chief Standing Counsel appearing for the respondent nos.1, 2 and 3 and perused the record.

2. By means of instant writ petition the order dated 17.02.2021 passed by the Sub-Divisional Officer, Sadar, Lucknow in Case No.67 of 2020 has been challenged.

3. Learned counsel appearing for the petitioner submits that the petitioner no.1 purchased a plot no.E-2/654 situated at Vineet Khand, Gomti Nagar, Lucknow on 27.04.2020 through sale deed from Mohammad Azeez. He submits that aforesaid house is registered in the name of petitioner no.1. Petitioner no.1 is sole owner and petitioner no.2, 3 and 4, who are children of opposite party no.4 were living in the aforesaid house prior to the order passed by the SDO. He further added that in fact Sub-Divisional Officer has passed the aforesaid order without considering the fact that House No.E-2/654 pertains to petitioner no.1 as undisputedly title is with petitioner no.1. He submits that without affording any opportunity of hearing and without considering the facts which were submitted before the Sub-Divisional Officer, the order dated 17.02.2021 was passed. He added that prima facie the order passed by the sub-Divisional Officer is liable to be quashed.

4. It is evident that the Section 16(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 specifically provided right to appeal to senior citizens as well as parents only against the order passed under Section 5 of the Act, 2007 and as such the petitioner has become remediless and therefore the only remedy lies to challenge the order aforesaid by filing a writ petition before this Court. The provision of Section 16(1) of the Act, 2007 runs as follows:-

"Section 16 (Appeals). "(1) Any senior citizen or a parent, as the case may be, aggrieved by an order of a Tribunal may, within sixty days from the date of the order, prefer an appeal to the Appellate Tribunal:

Provided that on appeal, the children or relative who is required to pay any amount in terms of such maintenance order shall continue to pay to such parent the amount so ordered, in the manner directed by the Appellate Tribunal:

Provided further that the Appellate Tribunal may, entertain the appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time."

5. In view of the aforesaid he added that in fact if there is a specific provision in any institute then same must have been read as has been put by the legislation as same shows the intent of the legislature. While enactment of the aforesaid Act, no such word with regard to any other person has been put under the aforesaid provision and as such the petitioner is not entitled to file any appeal.

6. On the other hand, countering the aforesaid, learned Chief Standing Counsel, Sri Shailendra Kumar Singh-III has very vehemently opposed the contention as has been made by the petitioners in preceding paragraphs. He denied the factual matrix of the case as averred by the petitioners. He submits that the Hon'ble Apex Court and the various High Courts vide their judicial pronouncement has held that right to appeal is also extended to other than the senior citizen or parents provided they are the person aggrieved.

7. While corroborating his arguments, he has placed reliance on the case reported in 2019 (8) ADJ 731 (D.B.) (Akhilesh Kumar and another Vs. State of U.P. and others) and has referred para 7 of the aforesaid judgment, which is extracted as under:-

"7. However, learned standing counsel has referred to a decision in Paramjit Kumar Saroya : Amanpreet v. Union of India, (2014 AIR (P&H) 121 wherein the Division Bench of the Punjab and Haryana High Court has held that a purposive interpretation should be given to Section 16(1) of the Act, 2007 and the only interpretation is that the right of appeal is conferred on both sides. The Court was of the view that it may be a case of an accidental omission and not of conscious exclusion and in order to give a complete and effective meaning to the statutory provision, the Court should read the words into it and the ultimate conclusion being that an appeal from both sides is envisaged under section 16(1) of the Act, 2007. Paragraph Nos. 19, 20, 23 and 27 of the said judgment reads as under:

"19. The petitioners assailed the provisions of sub section (1) of Section 16 of the said Act on the ground that there cannot be a right to appeal only to one of the affected parties, as anomalous situation would be created against the same order with which both the parties may be aggrieved."

8. In a similar controversy the Madras High Court in Balamurugan v. Rukmani (C.R.P.(PD)(MD) No. 437 of 2015 & M.P.(MD) Nos. 1 & 2 of 2015 decided on, 29 April 2015) in agreement with the view taken in Paramjit Kumar Saroya (supra) has held that an appeal under section 16 of the Act, 2007 would be maintainable at the behest of both the parties, i.e. at the instance of the aggrieved party for the reason that where the Tribunal decides a case in favour of the senior citizens or parents, the children or dependent or relatives against whom the order is passed and against whom it can be enforced under section 11 of the Act, 2007 would be the aggrieved person and have a right to file an appeal.

9. He further placed reliance on the case reported in AIR 2014 Punjab and Haryana 121 (Paramjeet Kumar Saroya Vs. Union of India and another) and judgment rendered in case of Carew and Co. Ltd. v. Union of India: (SCC 1.802, para 21), wherein, it has been held the "The law is not "a brooding omnipotence in the sky" but a pragmatic instrument of social order. It is an operational art controlling economic life, and interpretative effort must be imbued with the statutory purpose. No doubt, grammar is a good guide to meaning but a bad master to dictate. Notwithstanding the traditional view that grammatical construction is the golden rule, Justice Frankfurter used words of practical wisdom when he observed#: (US p. 138):

10. He has further submitted that in our old customary's laws, there was traditional principle of law of interpretation, which later on evolved and took the form of new law of interpretation. Quoting the aforesaid, he has referred the case of Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd., (2008) 4 SCC 755. The Hon'ble Supreme Court in aid of interpreting a statute pressed into service the traditional Mimansa system. These principles are the traditional principles of interpretation laid down by Jaimini and are stated to have been used regularly by great jurists who authored the Mitakshara and Dayabhaga laws. The principles were created for religious purpose, but they are stated to be so rational and logical that they began to be used in law, grammar, logic, philosophy and, thus, became of universal application. The three ways of dealing with the conflicts under the Mimansa system have been crystallized as under:?

"(1) Where two texts which are apparently conflicting are capable of being reconciled, then by the principle of harmonious construction (which is called the samanjasya principle in Mimansa) they should be reconciled.

(2) The second situation is a conflict where it is impossible to reconcile the two conflicting texts despite all efforts. In this situation the Vikalpa principle applies, which says that whichever law is more in consonance with reason and justice should be preferred. However, conflict should not be readily assumed and every effort should be made to reconcile conflicting texts. It is only when all efforts of reconciliation fail that the Vikalpa principle is to be resorted to.

(3) There is a third situation of a conflict Sharma Amodh and this is where there are two conflicting 2014.05.31 11 : 40 I attest to the accuracy and integrity of this document chandigarh CWP-12340-2010 (O&M) irreconcilable texts but one overrides the other because of its greater force. This is called a Badha in the Mimansa system (similar to the doctrine of ultra vires)." It is in the aforesaid context that the Hon'ble Supreme Court observed as under:?

"52. No doubt ordinarily the literal rule of interpretation should be followed, and hence the Court should neither add nor delete words in a statute. However, in exceptional cases this can be done where not doing so would deprive certain existing words in a statute of all meaning, or some part of the statute may become absurd."

11. He further placed reliance on the case reported in 1991 (2) SCC 87 (Surjeet Singh Kalra Vs. Union of India and another) and has referred para 19 of the aforesaid judgment, which is extracted as under:-

"19. True it is not permissible to read words in a statute which are not there, but "where the alternative lies between either supplying by implication words which appear to have been accidentally omitted, or adopting a construction which deprives certain existing words of all meanings, it is permissible to supply the words". Having regard to the context in which a provision appears and, the object of the statute in which the said provision is enacted, the court should construe it in a harmonious way to make it meaningful. An attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute. [378E-G] Craies Statute Law, 7th Edition, P. 109; Hameedia Hardware Stores V. B. Mohan Lal Sowcar, [1988] 2 SCC 513 at 524-25, and Sirajul Haq Khan & Ors. v. The Sunni Central Board of Waqf,"

12. Since it has been settled by the Hon'ble Apex Court and various High Courts that benefit of filing of appeal is also extended to any other persons than the senior citizens as well as the parents. In such view of the matter the present petitioner has remedy to file an appeal against the order dated 17.02.2021 passed by SDO.

13. In such view of the matter, the writ petition is hereby dismissed with liberty to the petitioner to file an appeal before the appellate authority within a period of 15 days from the date of this order. If such an appeal is filed before the authority concerned, the same shall be decided within next 90 days after calling objections from all the parties concerned, strictly in accordance with law.

Order Date :- 6.5.2022

A.Kr*