Chattisgarh High Court

Smt. Rita Roy vs Maintenance Tribunal And Sub ... on 23 March, 2022

                                                                             NAFR

                 HIGH COURT OF CHHATTISGARH, BILASPUR
                     Writ Petition (Civil) No.753 of 2022
      Smt. Rita Roy W/o Gautam Kumar Roy, Aged About 45 Years, Presently
       Residing At Shikshit Nagar, Near Bus Stand, BMY Charoda, Tehsil Bhilai-
       3, District- Durg, Chhattisgarh. Permanent Address- Vivekananda
       Colony, Shanti Nagar Street No.34 House No. 1528, P.S. Vaishali Nagar,
       Bhilai, Tehsil And District- Durg, Chhattisgarh.
                                                                     ---- Petitioner
                                    Versus
   1. Maintenance Tribunal And Sub Divisional Officer (Revenue), District-
       Durg, Chhattisgarh.
   2. Sunil Kumar Roy S/o Late Shree N.L. Roy, Aged About 81 Years, R/o
       Vivekananda Colony, Shanti Nagar Street No.34 House No.1528, P.S.
       Vaishali Nagar, Bhilai, Tehsil And District- Durg, Chhattisgarh.
   3. Gautam Kumar Roy S/o Sunil Kumar Roy Aged About 49 Years R/o
       Vivekananda Colony, Shanti Nagar Street No. 34 House No. 1528, P.S.
       Vaishali Nagar, Bhilai, Tehsil And District- Durg, Chhattisgarh.
   4. Additional Tehsildar, Bhilai Nagar, District- Durg, Chhattisgarh.
                                                               ---- Respondents

For Petitioner                    : Mr. Shalvik Tiwari, Advocate.
For Respondents No.2 & 3          : Mr. Tarendra Kumar Jha, Advocate.

For State/Respondents No.1 & 4 : Ms. Sameeksha Gupta, Panel Lawyer.

S.B.:- Hon'ble Shri Justice Rajendra Chandra Singh Samant Order on Board 23-03-2022

Heard.

1. This petition has been brought with prayer to quash the order dated

27.11.2021 vide Annexure-P/1 passed by the respondent

No.1/Maintenance Tribunal and Sub-divisional Officer (Revenue)

directing the eviction of the petitioner from the house of respondent

No.2.

2. It is submitted that petitioner is the daughter-in-law of respondent

No.2 and she is residing in her matrimonial home i.e. in the house of

respondent No.2. The respondent No.2 had filed an application under

Section 23 of the Maintenance and Welfare of Parents and Senior

Citizens Act, 2007 (hereinafter referred to as, "the Act, 2007"), on this

ground that respondent No.3, who had agreed to look-after the

maintenance of the respondent No.2 has failed to do so and further

making the allegations of torture against the petitioner and praying

for eviction of the petitioner and respondent No.3 from his house. The

application was contested by the petitioner subsequent to which, the

impugned order has been passed directing the petitioner and

respondent No.3 to vacate the house of respondent No.2.

3. It is submitted by the learned counsel for the petitioner that the

impugned order is unsustainable. It is submitted that in the case of

Smt. S. Vanitha Vs. The Deputy Commissioner, Bengaluru Urban

District & Others reported in (2021) AIR (SC) 177. It was held that a

married woman has a right to shelter under the provisions of

Protection of Women from Domestic Violence Act, 2005 (hereinafter

referred to as "the Act, 2005) and that right cannot be over-ridden by

the Act, 2007. Although, there was an agreement between respondent

No.3 and respondent No.2 that respondent No.3 shall take care of the

respondent No.2 in his old age and in return, respondent No.3 will

have the right over the house but there was no gift deed executed,

therefore, it was not a case under Section 23 of the Act, 2007. The

petitioner cannot be held responsible for the failure of respondent

No.3 in taking care and providing for maintenance of respondent No.2.

4. Reliance has also been placed on the judgment of Delhi High Court in

the case of Ravneet Kaur Vs. Prithpal Singh Dhingra reported in

2022 LiveLaw (Del) 151, in which the judgment of Supreme Court in

the case of Smt. S. Vanitha (Supra) has been referred and held that

"where a residence is a shared household, it does not create any embargo upon the owner to claim eviction against his daughter-in-law.

Shared household is defined under Section 2(s) of the Act, 2005.

Hence, the impugned order is unsustainable and prayer has been made

to quash the same.

5. Learned State counsel representing respondents No.1 and 4 makes

formal objection.

6. Learned counsel for respondent No.2 opposes the submissions. It is

submitted that the petitioner has already been evicted on 05.01.2022

from the house of respondent No.2 in compliance of the order dated

27.12.2021 passed by the respondent No.1.

7. The order granting interim relief was passed on 14.02.2022 before

which the impugned order was already executed. The respondent No.2

is in very serious health condition and he is admitted in B.S.P. hospital,

Bhilai. There is no possibility to allow the petitioner to live in the house

of the respondent No.2, as she has very badly behaved with the

respondent No.2, which may further be detrimental to his health and

life. It is further submitted that the petitioner has the remedy to

prefer the appeal.

8. Reliance is placed on the judgment of High Court of Punjab and

Haryana in the case of Paramjit Kumar Saroya Vs. Union of India

reported in LAWS(P & H) 2014-5-89. It has been held by the Punjab and

Haryana High Court that Section 16(1) of the Act, 2007 is followed and

it must be read to provide the Right to Appeal to any of the affected

parties. In which it has been held similarly that the Appeal is

maintainable from both the sides as envisaged under Section 16 of the

Act, 2007. The High Court of Allahabad has also held similarly in the

case of Akhilesh Kumar and Another Vs. State of U.P. and Others in

Writ Civil No.11295/2019 decided on 23.04.2019.

9. Reliance has also been placed on the judgment of High Court of

Karnataka in the case of M. Sunitha (Vidyasri) Vs. M. Shashikala

Mugadura reported in LAWS (KAR) 2021-7-148. The judgment of High

Court of Delhi in case of Rakhi Sharma Vs. State LAWS (DLH) 2021-3-

256.

10. It is submitted that the Co-ordinate Bench of this Court, in the case of

Pramod Ranjankar & Another Vs. Arunashankar & Others in Cr.M.P.

No.600/2018 decided on 18.07.2018, it was held that order of eviction

can be passed under the provisions of the Act, 2007. It has been again

held in the case of Shri Bhupendra Kumar Dhankar & Others Vs. Shri

Rameshwar Dhankar & Others in W.P.(227) No.83/2021 decided on

21.09.2021, therefore, the present petition is not maintainable.

11. In reply, it is submitted by the learned counsel for the petitioner that

Section 16 of the act, 2007 does not provide for remedy of Appeal to

the person other than a senior citizen or a parent which is very clearly

mentioned in Section 16(1) of the Act, 2007, therefore, the petitioner

is left with no remedy to file this petition.

12. Reliance is placed on the judgment of Rajeshkumar Bansraj Gandhi

and Another Vs. State of Gujarat and Others reported in AIR 2016

Gujarat 129 and the judgment of Calcutta High Court in the case of

Anand Kumar Agarwal and Another Vs. Ashok Kumar Agarwal

reported in (2019) 1 RCR (Civil) 507. Hence, the petition is

maintainable and prayed that appropriate relief be granted.

13. Considered on the submission. The question or maintainability is

needed to be decided first in the case of Rajeshkumar Bansraj Gandhi

and Another (Supra), it was held that according to Section 16(1) of the

Act, 2007 only a class of persons are treated as aggrieved for the

purposes of preferring Appeal, therefore, in such a case, the exercise

of Writ jurisdiction was appropriate. In the case of Anand Kumar Agarwal and Another (Supra), it was held that Section 16(1) of the

Act, 2007 permits only a senior citizen or a parent, as the case may be,

aggrieved by an order of Tribunal, to prefer an appeal to the Appellate

Tribunal, therefore, the Writ Petition is maintainable. Both these

judgments have been delivered by Single Bench of respected High

Courts.

14. The Division Bench of the High Court of Punjab and Haryana in the

case of Paramjit Kumar Saroya (Supra) has dealt with the

interpretation of Section 16 held in paragraph 27 as follows:-

"28.What is crucial is that the task of interpretation of a statutory enactment cannot be a mechanical task, nor can it be the own thoughts and words of the Judge. However, there is no perfect solution as in the words of Lord Denning it would be idle to expect every statutory provision to be drafted with divine prescience and perfect clarity. It is here that the role of the Court comes in. 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 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.

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."

15. However, it was later on observed in the judgment that the Central

Government was requested to relook into the provisions of the Act,

2007, therefore, although the interpretation was made but the same

has not been made a Rule. The Single Bench of the High Court of

Madras in the case of Balamurgugan Vs. Rukmani reported in LAWS

(MAD) 2015-4-318 has referred to the judgment of Punjab and

Haryana High Court. But later on, the Division Bench of Allahabad High

Court in the case of Akhilesh Kumar and Another (Supra) has held as

follows:-

"We find ourselves in agreement with the view taken by the Punjab and Haryana High Court in Paramjit Kumar Saroya (supra) andBalamurugan (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.

The Supreme Court in Surjit Singh Kalra vs. Union of India (1991) 2 SCC

87) in paragraph no.19 has held 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" (Craies Statute Law, 7th Edition, p. 109). Similar are the observations in Hameedia Hardware Stores v. B. Mohan Lal Sowcar, [1988] 2 SCC 513 at 524-25 where it was observed that the court construing a provision should not easily read into it words which have not been expressly enacted but 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. (See: Sirajul Haq Khan & Ors. v. The Sunni Central Board of Waqf, [1959] SCR 1287 at 1299)"

We, therefore, dismiss the writ petition with liberty to the petitioners to file an appeal before the appellate authority under section 16 of the Act, 2007 afresh or they may move an application for recall of the order dated 21.1.2019. In either case, the District Magistrate, Kanpur Nagar, respondent no.1 shall entertain the appeal of the petitioners, as the case may be, and pass an appropriate order in accordance with law after giving all the parties concerned, an opportunity of being heard."

16. Therefore, the Division Bench of Allahabad High Court has given the

interpretation and made it a rule that any of the parties shall have the

liberty to prefer Appeal under Section 16 of the Act, 2007. This is the

view in the case of M. Sunitha (Vidyasri) (Supra) by High Court of

Karnataka and of the Delhi High Court in the case of Rakhi Sharma

(Supra), hence, on this basis, it can be similarly held in this case also

that according to the interpretation made by the Division Bench of

Allahabad High Court by making a rule, that entitles any of the

affected party to prefer against the impugned order. Hence, on this

ground, it can be held that petition is not maintainable. After this

finding of the Court, it would not be proper to make any observation

on the merit of the case, therefore, this petition is dismissed and