Chattisgarh High Court

Rajesh Yadav vs Shyamlal Yadav on 3 December, 2022

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                                                               W.P.(227) No. 217 of 2020


                                                                                  AFR
                  HIGH COURT OF CHHATTISGARH, BILASPUR
                         Writ Petition (227) No. 217 of 2020
                             Order reserved on : 22/09/2022
                             Order delivered on : 03/12/2022

1. Rajesh Yadav S/o Shri Shyamlal Yadav, aged about 33 years,
2. Smt. Archana Yadav W/o Rajesh Yadav, Aged about 30 years,
    Both R/o H.No. 306, Ekta Nagar, Ward-07, Utai, Tahsil & District Durg (C.G.)
                                                  ---- Petitioners/Non-Applicants
                                     Versus
   Shyamlal Yadav S/o Late Shri Halalkhor Yadav, R/o H.No. 306, Ekta Nagar,
    Ward - 07, Utai Tahsil & District Durg (C.G.)
                                                  ---- Respondent/Applicant

For Petitioners : Mr. Amiyakant Tiwari, Advocate For Respondent : Mr. T.K. Jha, Advocate Amicus Curiae : Mr. Abhishek Sinha, Senior Advocate along with Ms. Shreya Jaiswal

Hon'ble Shri Justice Rakesh Mohan Pandey C.A.V. Order

1. Heard on admission.

2. This petition under Article 227 of the Constitution of India has been filed by

the petitioners against the order dated 16.01.2020 passed by the Court of

learned Collector-cum-Appellate Tribunal, District Durg (C.G.) in Misc.

Appeal Case No. 13/B-121/Year 2018-19 between Shri Rajesh Yadav &

Another vs. Shri Shyamlal Yadav, whereby the order passed by the Court of

Sub-Divisional Officer (Revenue), Durg in Revenue Case No. 06 A-74/2018-

19 dated 17.09.2019 has been affirmed.

3. The respondent is father of petitioner No.1 and father-in-law of petitioner

No.2. They are sharing common accommodation which is situated at House

No. 306, Ekta Nagar, Ward-07, Utai, Tahsil & District Durg (C.G.). The

respondent filed an application under Section 5 of Maintenance and Welfare

of Parents and Senior Citizens Act, 2007 (for short 'the Act') before the Sub-

Divisional Magistrate, District Durg (C.G.) on 21.02.2017 inter alia on the

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ground that wife of his elder son namely Harish died in the year 2017 and

thereafter his elder son Harish started residing in the above house along

with him i.e. respondent. Out of his wedlock, Harish and his wife have two

issues, a daughter aged about 14 years and a son aged about 12 years. It is

further stated that the second son Pradeep is unmarried, whereas younger

son Rajesh and his wife are residing in the same accommodation. It is

further alleged that the present petitioners used to create nuisance more

often and they were residing on the first floor of the house where other family

members were not permitted to enter. Rajesh Yadav and his wife have taken

custody of property documents, ornaments and they refused to return it. The

property has been willed out in favour of petitioner i.e. Rajesh Yadav and

they are compelling the respondent to vacate the house, therefore, the

respondent made a prayer for eviction of the petitioners.

4. The petitioners herein filed reply to the above stated application and denied

its contents. The petitioners stated that there are three accommodations

recorded in the name of respondent and he received Rs. 20 lakhs post

retirement and at present he is getting pension of Rs.30,000/- per month.

They further stated that the respondent was not treating well with the

petitioner no. 2 and she was driven out of the house by the respondent in

April, 2016 and the respondent also tried to outrage her modesty in absence

of petitioner No.1, further, the electricity connection of first floor was cut by

the respondent and finally they prayed for dismissal of the application moved

by the respondent.

5. The Sub-Divisional Officer (Revenue), Durg after appreciation of material

placed before it and the evidence adduced by the parties, passed the order

on 17.09.2019 therein directing the petitioners to vacate the premises within

a period of 15 days.

6. The order dated 17.09.2019 was challenged before the Court of Collector-

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cum - Appellate Tribunal, District Durg and vide order dated 16.01.2020,

affirming the finding recorded by the Sub-Divisional Officer (Revenue),

District Durg, the learned Appellate Tribunal has dismissed the appeal

preferred by the petitioners herein.

7. Learned counsel for the petitioners submits that the order passed by both

the Tribunals is bad-in-law and without jurisdiction as there is no provision in

the Act to pass an order of eviction and further the Maintenance Tribunal as

well as the Appellate Tribunal was not constituted according to law and

notification issued by the State Government.

8. On the other hand, learned counsel for the respondent submits that the right

of maintenance and welfare includes right over the property of the senior

citizens and claim for eviction is inbuilt in the Act itself. He also submits that

various High Courts have passed orders for eviction. He would further

submit that there is concurrent finding recorded by both the Tribunals,

therefore, there is no scope of interference by this Court while exercising

powers under Article 227 of the Constitution of India. He has placed reliance

upon the decision in the matter of Dr Mahabal Ram vs. Indian Council of

Agricultural Research and Others, (1994) 2 SCC 401 along with other

judgments on the ground that application was maintainable.

9. Mr. Abhishek Sinha, learned Senior Counsel who assists this court as

Amicus Curiae, submits that there is divergence of views taken by the

various High Courts. He fairly submits that there is no provision in the

Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and the

rules made thereunder to move an application for eviction alone. He would

further submit that the Tribunal is defined under Section 2(j) of the act which

means the Maintenance Tribunal constituted under Section 7 of the act.

Section 7 of the Act deals with constitution of Maintenance Tribunal. He

submits that though the State Government has issued notification on

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24.01.2009 in exercise of the powers conferred by Sub-section (1) of Section

7 of the Act for constitution of the Maintenance Tribunal and Appellate

Tribunal, but till date neither the Maintenance Tribunal nor the Appellate

Tribunal has been constituted and the entire proceedings before the

Maintenance Tribunal has been conducted by the Sub-Divisional Officer

(Revenue), Durg and the proceedings of Appellate Tribunal has been

conducted by the District Collector which cannot be said to be in accordance

with law. He has placed reliance upon Karnal Improvement Trust, Karnal

vs. Parkash Wanti (Smt) (Dead) and Another, (1995) 5 SCC 159 and

Kanwar Singh Saini vs. High Court of Delhi, (2012) 4 SCC 307.

10. I have heard learned counsel for the parties as well as learned Amicus

Curiae and perused the material available on record.

11. There are two question for consideration before this court :-

(i) Whether the orders have been passed by duly constituted Tribunals as contemplated in the Act itself?, and

(ii) Whether the Tribunals below have rightly passed the orders for eviction holding the application moved by the respondent is maintainable?

12. Before delving into merits of the case, it would be advantageous to scrutinize

the issue no. (i) i.e. whether the Tribunals were constituted in accordance

with law as if the Tribunals were not constituted properly, the orders passed

by the Tribunals would be nullity and there would be no question to decide

the issue No. (ii). Section 2 (j) of the Act defines Tribunal and it means the

Maintenance Tribunal constituted under Section 7 of the Act. Section 7 of the

Act which deals with constitution of Maintenance Tribunal is given below:-

7. Constitution of Maintenance Tribunal. - (1) The State Government shall within a period of six months form the date of the commencement of this Act, by notification in the Official Gazette, constitute for each sub-division one or more

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Tribunals as may be specified in the notification for the purpose of adjudicating and deciding upon the order for maintenance under Section 5.

(2) The Tribunal shall be presided over by an officer not below the rank of Sub-Divisional Officer of a State. (3) Where two or more Tribunals are constituted for any area, the State Government may, by general or special order, regulate the distribution of business among them.

13. Likewise, Section 15 deals with constitution of Appellate Tribunal and same

is reproduced herein:-

15. Constitution of Appellate Tribunal. - (1) The State Government may, by notification in the Official Gazette, constitute one Appellate Tribunal for each district to hear the appeal against the order of the Tribunal.

(2) The Appellate Tribunal shall be presided over by an officer not below the rank of District Magistrate.

14. Section 7(1) of the act says that the State Government shall within a period

of six months from the date of the commencement of this Act, by notification

in the Official Gazette, constitute for each sub-division one or more Tribunals

as may be specified in the notification. Though, in Section 15 language used

in Section 7 has not been reproduced, but the State Government vide

notification dated 24.01.2009 notified the constitution of Maintenance

Tribunal which shall consist of members i.e. 1. Sub Divisional Officers

(Revenue) as Chairman; 2. Chairman of Janpad Panchayat of Sub

Divisional Head Quarter or Member of Janpad Panchayat nominated by him

as Member; 3. Block Medical Officer hosted at Sub Divisional HQ as

Member; 4. Senior Citizen above 60 years of age nominated by Sub

Divisional Officer as Member, and, 5. Panchayat and Social Education

Organizer hosted at Sub Divisional HQ as Coordinator.

15. Likewise, the Appellate Tribunal shall consist of members i.e. 1. District

Collector as Chairman; 2. The Chairman of Zila Panchayat female member

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nominated by Chairman of Zila Panchayat as Member; 3. Chief Medical

Officer as Member; 4. Senior Citizen above 60 years of age nominated by

Collector as Member, and, 5. Joint/Deputy Director/ I/C Deputy Director

Panchayat and Social Welfare of the district as Coordinator.

16. It is very much clear from the notification that it was issued on 24.01.2009. In

this case records of both the Tribunals were called.

17. From the order sheet of the Sub-Divisional Officer (Revenue), Durg, it

appears that revenue case was registered by Sub-Divisional Officer

(Revenue) on 21.02.2019 and all the orders including the final order have

been passed by the Sub-Divisional Officer (Revenue) itself. The application

was moved to the Sub-Divisional Magistrate, District Durg and the entire

proceedings have been conducted by the Sub-Divisional Officer (Revenue).

Vide Notification dated 24.01.2009, Maintenance Tribunal was constituted

consisting of five members. The entire proceedings have been conducted by

Sub-Divisional Officer (Revenue) alone. Likewise, the powers of Appellate

Tribunal has been exercised by District Magistrate, Durg alone and there is

no participation of any of the members of the Tribunal, nor order itself or final

order contains the signature of any of the members, which shows that the

order has been passed by the Sub-Divisional Officer (Revenue) while

exercising powers of Maintenance Tribunal and by the District Magistrate

while exercising power of the Appellate Tribunal.

18. In case of Karnal Improvement Trust, Karnal (supra), wherein issue of

constitution of the Tribunal under Section 18 of the Land Acquisition Act was

involved where the Hon'ble Supreme Court has held as under:-

6. A conspectus of the above provisions would give us unerring indication of the legislative animation that the Tribunal shall consist of three members, namely, the President and two assessors and each is co-existent with the others. The Tribunal is a civil court and the President is the

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Presiding Judge of the court. Being a judicial member, undoubtedly, he has been conferred with power to preside over the Tribunal, summon the witnesses, secure the evidence and decide on questions of law and title and procedure. If he considers necessary he may also do so in association with other members. Even in matters of procedure to a limited extent, namely, in summoning the witnesses who would be competent or necessary or material witnesses to unfold the measurement of the land or the value thereof, the views of the assessor-members may be relevant, germane and sometimes necessary, as being local persons.

It is true that no qualifications have been prescribed for appointment of an assessor, while qualifications for the member-President stood prescribed. The reason appears to be that the assessor being a local member, obviously, having had personal knowledge of the local conditions of the land and its prevailing value, the legislature appears to have intended that opinion of men of common experience, perhaps, would be more appropriate to determine compensation. That would not elevate the position of the President to be pivotal and relegate the assessors to be adjuncts or ancillary to the President. If it were to be otherwise, the legislature would have employed the language that the President, with the assistance of the assessors, would determine the compensation or have the lands measured etc. etc. The power to decide on question of law and title and in some cases the procedure solely given to the President, is obviously for the reason that the President has had judicial or legal experience on questions, relating to disputes of title and also conversant with the procedure in the Code of Civil Procedure. Section 59 (c) amplifies that scope and gives power to the presiding member the status of Civil Judge to summon the witnesses, enforce their evidence and to compel production of the documents as is provided in CPC.

9. Admittedly, the assessors did not take any active part in the cases at hand in hearing the argument and the President has recorded that "they told the undersigned that I should

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hear the arguments by myself. Today neither of theses two assessors is present. It appears they are not interested in hearing the arguments". This is dereliction of the statutory duty enjoined by the Act defeating the purpose of the Act. The award prepared and signed by the President is that of the President, as he says, it is not an award of the Tribunal. Thus the decree is not that of the Tribunal, which alone is executable in a Court of Small Causes or Senior Sub-Judge.

12. The question thus arises whether the function by the Tribunal as a body is mandatory or directory? The discharge of the duties under the Act are quasi-judicial. The power to determine compensation and other questions involves adjudication. The discharge of the functions by the Tribunal being quasi-judicial cannot be regarded as ministerial. When the statute directs the Tribunal consisting of three members to determine compensation etc. and designates the award as judgment and decree of a civil court, it cannot be held that the quasi-judicial functions of the Tribunal would be considered as directory, defeating the very purpose of the Act. Though inconvenience and delay may occasion in some cases by holding the provisions to be mandatory, but that is an inescapable consequence. In the light of the aforesaid discussion, it must be held that the adjudication by the three- member Tribunal is imperative and mandatory. Determination of the compensation in disregard thereof renders the adjudication void, invalid and inoperative.

19. In case of Kanwar Singh Saini (supra), while dealing with the rights and

obligations created by Act, the Hon'ble Supreme Court has held as under:-

22. There can be no dispute regarding the settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court, and if the court passes order/decree having no jurisdiction over the matter, it would amount to a nullity as the matter goes to the roots of the cause. Such an issue can be raised at any belated stage of the proceedings including in appeal or execution. The finding

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of a court or tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Acquiescence of a party equally should not be permitted to defeat the legislative animation. The court cannot derive jurisdiction apart from the statute [Vide United Commercial Bank Ltd. v. Workmen, AIR 1951 SC 230, Nai Bahu v. Lala Ramnarayan, (1978) 1 SCC 58, Natraj Studios (P) Ltd. v. Navrang Studios, (1981) 1 SCC 523, Sardar Hasan Siddiqui v. STAT, AIR 1986 All 132, A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, Union of India v. Deoki Nandan Aggarwal, 1992 Supp (1) SCC 323, Karnal Improvement Trust v. Parkash Wanti, (1995) 5 SCC 159, U.P. Rajkiya Nirman Nigam Ltd. v. Indure (P) Ltd., (1996) 2 SCC 667, State of Gujarat v. Rajesh Kumar Chimanlal Barot, (1996) 5 SCC 477, Kesar Singh v. Sadhu, (1996) 7 SCC 711, Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722 and CCE v. Flock (India) (P) Ltd., (2000) 6 SCC 650.]

23. When a statute gives a right and provides a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act. When an Act creates a right or obligation and enforces the performance thereof in a specified manner, "that performance cannot be enforced in any other manner". Thus for enforcement of a right/obligation under a statute, the only remedy available to the person aggrieved is to get adjudication of rights under the said Act. (See Doe d. Bishop of Rochester v. Bridges, (1831) 1 B & AD 847, B & AD p. 859, Barraclough v. Brown, 1897 AC 615, Premier Automobiles, Ltd. v. Kamlekar Shantaram Wadke, (1976) 1 SCC 496 and Sushil Kumar Mehta v. Gobind Ram Bohra, (1990) 1 SCC 193.)

20. From the above mentioned judgments, it is quite vivid that Maintenance

Tribunal and the Appellate Tribunal have been constituted by the Legislature

and the Tribunals have been conferred with the powers of a Civil Court for

the purposes of taking evidence on oath or enforcing attendance of the

witness and compelling the discovery and production of document and

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material object and for such other purposes as may be prescribed. It is also

given in Section 8 (2) of the Act that the Tribunal shall be deemed to be a

Civil Court for all the purposes of Section 195 and Chapter XXVI of the Code

of Criminal Procedure and same powers have been conferred upon the

Appellate Tribunal also. The provisions laid down under Section 7 and

Section 15 of the Act make it manifest that power is conferred with the

Tribunal to inquire into the matter and thereupon pass appropriate orders

and it cannot be passed by the Sub-Divisional Officer (Revenue) or by the

District Collector in jurisdiction of the statutory duty enjoined, defeating the

purposes of the Act. The orders have been signed by the Sub-Divisional

Officer (Revenue) and the Collector alone, therefore, in the teeth of the Act,

it cannot be held to be the orders passed by the Tribunals. From the

judgments of the Hon'ble Supreme Court, it is also apparent that conferment

of jurisdiction is a legislative function and it can neither be conferred with the

consent of the parties nor by a superior court, and if the court passes any

order/decree having no jurisdiction over the matter, it would amount to nullity

as the matter goes to the root of the cause and such an issue can be raised

at any stage of the proceedings.

21. In the matter of Dr Mahabal Ram (supra), the relevant part of para-6 of the

judgment as relied by Mr. T.K. Jha, learned counsel for the respondent,

reads thus :-

"6. ........................... On the other hand, we are prepared to safeguard the interests of claimants who go before the Tribunal by holding that while allocating work to the Single Member - whether judicial or administrative - in terms of sub- section (6), the Chairman should keep in view the nature of the litigation and where questions of law and for interpretation of constitutional provisions are involved they should not be assigned to a Single Member. In fact, the proviso itself indicates Parliament's concern to safeguard the interest of

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claimants by casting an obligation on the Chairman and Members who hear the cases to refer to a regular bench of two members such cases which in their opinion require to be heard by a bench of two Members. We would like to add that it would be open to either party appearing before a Single Member to suggest to the Member hearing the matter that it should go to a bench of two Members. The Member should ordinarily allow the matter to go to a bench of two Members when so requested. ................................"

22. The facts of decision in case of Dr Mahabal Ram (supra) cited by Mr. T.K.

Jha, learned counsel for the respondent, is different from the issue involved

in this case.

23. From the above discussion, it is quite vivid that despite notification issued by

the State Government regarding constitution of the Maintenance Tribunal

and the Appellate Tribunal, the cases are being dealt by bureaucrats and no

Tribunal has been constituted. The issue goes to the root of the cause. The

order passed by only Sub-Divisional Officer (Revenue) and the District

Collector are nullity as both the authorities are exercising powers of the

Tribunal defeating the object of the Act. In my opinion, there is no need to

discuss and decide the second issue when orders passed by the

Maintenance Tribunal and the Appellate Tribunal are without jurisdiction and