Jagdish Pitambar Pawar vs Pitambar Pundalik Pawar And Others
2023 Latest Caselaw 11811 Bom

Bombay High Court

Jagdish Pitambar Pawar vs Pitambar Pundalik Pawar And Others on 29 November, 2023

Author: Mangesh S. Patil

Bench: Mangesh S. Patil

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                             WRIT PETITION NO.36 OF 2023

         Jagdish Pitamber Pawar                         ...        PETITIONER

                 VERSUS

1.       Pitamber Pundalik Pawar
2.       Mathurabai Pitamber Pawar
3.       Ashok Pitamber Pawar
4.       The Collector, Dhule
         Senior Citizens (Maintenance and Welfare)
         Appellate Tribunal, Dhule
5.       The Sub-Divisional Officer
         Senior Citizens (Maintenance and Welfare)
         Tribunal, Dhule                           ...            RESPONDENTS

                               ...
Advocate for petitioner : Mr. Ameya Sabnis h/f. Mr. A.D. Sonar
A.G.P. for respondent/State : Mr. A.A. Jagatkar
Advocate for respondent No.1 : Ms. Akshara Madake h/f. Mr. Prashant B.
Jadhav
                               ...
                   CORAM              : MANGESH S. PATIL &
                                        NEERAJ P. DHOTE, JJ.

                          RESERVED ON  : 23.10.2023
                          PRONOUNCED ON: 29.11.2023

ORDER (MANGESH S. PATIL, J.) :

We have heard the learned advocates Mr. Ameya Sabnis

holding for Mr. A.D. Sonar for the petitioner, learned AGP for respondent

- State and Ms. Akshara Madake holding for advocate Mr. Prashant B.

Jadhav for respondent No.1.

2. As per the directions of the Acting Chief Justice the following

point has been referred for adjudication by this bench in the light of

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diversion of opinion expressed by single judges of this Court.

"Whether an appeal under Section 16 of the Maintenance and Welfare of Parents and Senior Citizen Act, 2007 is maintainable only at the instance of any senior citizen or a parent or it is maintainable at the instance of any aggrieved person ?"

3. The learned advocate Mr. Sabnis would vehemently submit

that right to appeal is a statutory right and does not inhere in a party. It

is only if the remedy of appeal is provided by a statute that a party could

prefer an appeal. He would submit that a plain reading of Section 16 of

the Act leaves no manner of doubt that it is only the senior citizen and

parents who have been given a right to prefer an appeal. When there is

no manner of doubt on a plain reading of the provision, when the

legislature has restricted this right of appeal only to a senior citizen or a

parent, any interpretation to read it down and make that right of appeal

available even to children against whom the order is passed in a

proceeding under Sections 6 and 7, would be clearly inconsistent with

the legislative intent. He would submit that for whatever reason the

legislature has clearly worded the provision in the manner it has. There

is no ambiguity and reading something into the provision which is not

there, would be like legislating, which function this Court cannot

undertake. He would, therefore, submit that the view expressed by the

High Courts of Madras in K. Raju Vs. Union of India; 2021 SCC Online

Mad 746 and the Calcutta High Court in Mamta Sarki and Anr. Vs. State

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of West Bengal & Ors.; 2020 SCC Online Cal 721 be preferred rather then

the view expressed in the matter of Paramjit Kumar Saroya Vs. The Union

of India and Ors.; AIR 2014 P & H 121.

4. Learned AGP adopted the submission of Mr. Sabnis.

5. Learned advocate Ms. Madake for the respondent No.1

would submit that though the provision of Section 16 uses the words

'senior citizen' or 'parent', it would be an anomalous situation if in a

hypothetical case, a senior citizen who is aggrieved by the order could

prefer an appeal which will lie before a Tribunal constituted under the

Act and if the child is also aggrieved by some portion of the selfsame

order he will have to invoke the powers of this Court under Articles 226

and 227 of the Constitution of India, resulting into a situation where the

legality of the selfsame order would be under challenge before two fora.

She would submit that after considering the conspectus, for the detailed

reason Paramjit Kumar Saroya (supra), found it to be a casus omissus and

has resorted to a purposive interpretation. Even if it is a question of right

to prefer an appeal which is a statutory right, the High Courts are not

precluded from resorting to the principles of casus omissus and purposive

interpretation.

6. We have considered the rival submissions and perused the

papers and the judgments. There cannot be any dispute about the settled

principle of law that a right of appeal does not inhere in an individual

and has to be provided by way of a statutory provision. One need not

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elaborate this aspect. The issue would be as to if such a right to prefer an

appeal which the legislature has not expressly provided for in the

provisions of the Act can be read by resorting to the principles of casus

omissus and purposive interpretation.

7. Apparently K. Raju (supra) seeks to disagree with the view

expressed in Paramjit Kumar Saroya (supra) for the reason that there is

no ambiguity in the provision of Section 16 and that since the issue is

regarding right to prefer an appeal which is an statutory right, adding

something into Section 16 so as to interpret it in the manner in which it

has been done in the matter of Paramjit Kumar Saroya (supra) would not

be proper.

8. Incidentally, even the High Court of Calcutta in the matter of

Mamta Sarki (supra) has not been able to follow the course followed in

the matter of Paramjit Kumar Saroya (supra) for the same reason.

9. Be that as it may, the plain reading of Section 16 reveals that

the right to prefer an appeal has been restricted to a senior citizen or

parent. In order to ascertain as to if it is casus omissus, the Punjab and

Haryana High Court in the matter of Paramjit Kumar Saroya (supra) had

gone through the legislative debates preceding the legislation which

culminated into the Act and it was noticed that though there was a

debate on other provisions of the Act, there was absolutely no debate in

respect of the provision of Section 16. The submissions made before us

were also made before the division bench which decided Paramjit Kumar

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Saroya (supra). It was observed that the provisions of the Act do not

seek to merely restrict the claims to maintenance but even complex issues

in respect of rights in the property would be involved, having potential of

even affecting the rights of third party. It was also noticed that there was

no debate in the Parliament for omitting to provide a right of appeal to

any party and restricting it only to the senior citizen or parent. By taking

aid of the principle of casus omissus and resorting to the purposive

interpretation, following observations were made in paragraph No.24 :

"24. We may add at this stage that in order to have assistance to this Court in view of the complexity in the matter involved, we considered it appropriate not only for the counsels to assist us, but to appoint Amicus Curiae to have dispassionate view of the matter. We, thus, appointed Mr. Puneet Bali, Senior Advocate as the Amicus Curiae to be assisted by Ms. Divya Sharma, Advocate. They have done a comprehensive research on various aspects of the matter and this includes the Parliamentary debates when the Bill for enactment of the said Act was introduced. A perusal of these debates reflect that there has been no debate qua Section 16(1) of the said Act, nor has any intent been reflected to exclude the right of appeal to persons other than the senior citizens or parents, unlike the debate on Section 17 of the said Act where the right of legal representation has been excluded."

After taking a stock of the precedent ultimately the issue was

concluded in paragraph Nos.32 and 33 in following manner :

"32. Now coming to the conspectus of the discussion aforesaid, we have no doubt in our mind that we would be faced with the serious consequences of quashing such a provision which deprives the right of one party to the appeal remedy, while conferring it on the other especially in the context of the other provisions of the same Section as well as of the said Act. We have to avoid this. The only way to avoid it is to press into service both the principles of purposive interpretation and casus omissus. The Parliamentary discussions on the other provisions of the said Act do not convey any intent by which there is any intent of the Parliament to create

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such a differentiation. There is no point in repeating what we have said, but suffice to say that if nothing else, at least to give a meaning to the first proviso of Section 16(1) of the said Act, the only interpretation can be that the right of appeal is conferred on both the sides. It is a case of an accidental omission and not of conscious exclusion. Thus, in order to give a complete effective meaning to the statutory provision, we have to read the words into it, the course of action even suggested in N. Kannadasan's case (supra) in para 55. How can otherwise the proviso to sub section (1) be reconciled with sub section itself. In fact, there would be no need of the proviso which would be made otiose and redundant. It is salutary role of construction of the statute that no provision should be made superfluous. There is no negative provision in the Act denying the right of appeal to the other parties. The other provisions of the Act and various sub sections discussed aforesaid would show that on the contrary an appeal from both sides is envisaged. Only exception to this course of action is the initial words of sub section (1) of Section 16 of the said Act which need to be supplanted to give a meaning to the intent of the Act, other provisions of the said Act as also other sub sections of the same Section of the said Act. In fact, in Board of Muslim Wakfs Rajasthan's case (supra), even while cautioning supply of casus omissus, it has been stressed in para 29 that the construction which tends to make any part of the statute meaningless or ineffective must always be avoided and the construction which advances the remedy intended by the statute should be accepted. This is the only way we can have a consistent enactment in the form of whole statute.

33. We are thus of the view that Section 16(1) of the said Act is valid, but must be read to provide for the right of appeal to any of the affected parties."

10. Once it is noticed that there was no debate in the Parliament

while passing the bill touching this very aspect qua Section 16(1) and

when it is noticed that though there was a discussion in the Parliament

on the other provisions of the Act but which did not reflect anything in

respect of Section 16, we are in respectful agreement with the

observations (supra) in the matter of Paramjit Kumar Saroya. There is

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nothing to demonstrate that the provision of Section 16 was drafted

designedly to provide the right of appeal only to a senior citizen or a

parent, it is a clear case of casus omissus which can be supplanted by

resorting to purposive interpretation, to avoid the anomalous situation.

We, therefore, respectfully agree with the reasoning in the matter of

Paramjit Kumar Saroya (supra).

11. In this context it would be apposite to note that our

inference that it is a case of casus omissus stands substantiated from the

fact that even the Parliament has now put up a bill for amending

provisions of Act, (Maintenance and Welfare of Parents and Senior

Citizens (Amendment) Bill 2019, Bill No.374/2019) which seeks to

amend Section 16 to the effect that the right of appeal is made available

even to the children or relatives.

Section 14 of the Amendment Bill Reads as Under :

"14. Amendment of section 16.--

In section 16 of the principal Act,--

(i) in sub-section (1),--

(a) in the opening portion, after the words "senior citizen or a parent", the words "or any of the children or relatives" shall be inserted;

(b) in the first proviso, after the word "parent", the words "senior citizen" shall be inserted;

(ii) in sub-section (6), after the words "receipt of an appeal", the words "and in exceptional circumstances and for reasons to be recorded in writing, within a further period of thirty days" shall be inserted."

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12. To conclude, we answer the point to the effect that an appeal

under Section 16 of the Act would be maintainable even at the instance

of any of the children or relatives.

13. Matter be placed before the appropriate bench.

 [ NEERAJ P. DHOTE ]                                   [ MANGESH S. PATIL ]
      JUDGE                                                   JUDGE




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