Allahabad High Court
Smt. Noor Jahan vs State Of U.P. Thru. Prin. Secy. ... on 17 April, 2023
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 3
Case :- WRIT - C No. - 6213 of 2022
Petitioner :- Smt. Noor Jahan
Respondent :- State Of U.P. Thru. Prin. Secy. Home Lko. And 4 Others
Counsel for Petitioner :- Akhilesh Kumar Pandey
Counsel for Respondent :- C.S.C.,Mohammad Ehtesham Khan,Shashi Kant Mishra
Hon'ble Vivek Chaudhary,J.
Heard learned counsel for the petitioner, learned Standing Counsel for the State and Sri M.E. Khan, learned counsel for the private respondents.
The petitioner has approached this Court challenging the order dated 3.3.2022 passed by the appellate authority in Appeal No.3302 of 2021 "Izhar Ali and another vs. Noor Jahan" under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short 'the Act of 2007').
By the impugned order, proceedings are remanded by the appellate court to the original authority. The ground of remand is that the original authority while passing the order did not take into consideration earnings of appellants and merely on the ground that they are not ready and willing to pay any maintenance to their mother, allowed her application.
Learned counsel for petitioner makes two submissions before this Court. His first submission is that Section 16 of the Act of 2007 provides that appeal can only be filed by senior citizens or parents and not by children and, hence, appeal filed by the sons was not maintainable.
Learned counsel for private respondents places reliance upon a Division Bench judgment of this Court in Akhilesh Kumar and another vs. State of U.P. and others, 2019 (8) ADJ 731, Paragraph 9 of which, reads as follows:
"9. We find ourselves in agreement with the view taken by the Punjab and Haryana High Court in Paramjit Kumar Saroya (supra) and Balamurugan (supra) because if the right of appeal is denied to the aggrieved party, namely, child or children or relatives the appeal clause under the Act, 2007 would be frustrated and tantamount to denying them the similar right of appeal as provided to another party who is the senior citizens or parents."
Hence, a Division Bench of this Court has already held that even children have a right to file appeal under Section 16 of the Act of 2007.
Next submission of learned counsel for petitioner is that Section 16(4) provides that the Appellate Tribunal may either allow or reject an appeal and, therefore, it has no power to remand the same.
Learned counsel for private respondents submits that appellate authority also has power to remand a matter.
Sub-sections (4) and (5) of Section 16 of the Act of 2007 read as follows:
"16.(4). The Appellate Tribunal may, after examining the appeal and the records called for either allow or reject the appeal.
(5) The Appellate Tribunal shall, adjudicate and decide upon the appeal filed against the order of the Tribunal and the order of the Appellate Tribunal shall be final:
Provided that no appeal shall be rejected unless an opportunity has been given to both the parties of being heard in person or through a duly authorised representative."
A bare perusal of sub-sections (4) and (5) of Section 16 of the Act of 2007 shows that it specifically intends that these proceedings, which are summary in nature, should be brought to their logical conclusion as soon as possible and for the said purpose only, Appellate Tribunal is provided power to allow or reject an appeal. Merely because certain aspect of the matter was not considered by the original authority, it ought not to have remanded the case, as it was always open for Appellate Tribunal to take into consideration all aspects of the matter and pass appropriate orders on merits.
Hence, the impugned order dated 3.3.2022 cannot stands and is set aside. The matter is remanded back to the appellate authority to consider and decide the same in accordance with law by a reasoned and speaking order, taking into consideration all aspects of matter in accordance with law, say within a period of one month from the date a certified copy of this order is placed before it. Meanwhile, private respondents shall continue to pay maintenance amount in terms of the order passed by the original authority.
The writ petition is accordingly allowed.
[Vivek Chaudhary,J.]
Order Date :- 17.4.2023
Sachin
