Sanjay Walia vs Sneha Walia And Anr
2013 Latest Caselaw 5395 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of Decision: 22.11.2013

+      W.P.(C) 6684/2010 and CMs No. 13219/2010 (stay), 4765/2012
       (to restrain petitioner from construction of servant quarter),
       4651/2013 (for modification of order dated 15.03.2013)



       SANJAY WALIA                                     ..... Petitioner

                          Through: Mr Manjit Singh Ahluwalia, Adv.

                          versus

       SNEHA WALIA AND ANR                           ..... Respondents

                          Through: Mr Rajiv K. Garg, Adv.

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                              JUDGMENT

V.K.JAIN, J. (ORAL)

CM No.15746/2013 (of petitioner for waiver of cost imposed on 06.08.2013) Considering the adjournments taken by the petitioner on various

dates, as noted in the last order, there is no ground for waiver of the

cost. However, the cost is reduced to Rs 10,000/-.

The application stands disposed of.

W.P.(C) 6684/2010

Respondent No. 1 is the mother of the petitioner. She filed a

petition under the provisions of the Maintenance and Welfare of Parents

and Senior Citizens Act, 2007 (hereinafter referred to as the „Act‟) for

grant of maintenance. There is a dispute between the petitioner and

respondent No. 1 with respect to ownership of second floor of house

No.C-24, Panchsheel Enclave. The Tribunal, considering the aforesaid

dispute, directed that till finalization of the ownership of the title by the

Court, the second floor property and its rental income shall be enjoyed

by respondent No. 1 and accordingly directed the petitioner before this

Court to give peaceful possession of the second floor to respondent No.

1, so that she could enjoy rental income from the said floor. The area

SHO was directed to execute the order and report its compliance to the

Tribunal. It was further directed that since respondent No.1 shall enjoy

the rental income, no order for her maintenance was being made. Being

aggrieved from the aforesaid order, the petitioner is before this Court.

2. Initially, since the petitioner had also challenged the vires of

Section 9 of the Act, the petition was heard by a Division Bench. The

Court, vide an interim order dated 30.09.2010, stayed the order passed

by the Tribunal, subject to the petitioner paying a sum of Rs 25,000/-

per month to respondent No.1 by way of a bank draft. Vide subsequent

order dated 02.11.2011, the Court, noticing that the second floor was

lying locked and vacant, allowed respondent No. 1 to let out the same so

that rental income could start accruing from the said floor. It was further

directed that respondent No.1 was shall retain 50% of the rental income

in a separate bank account and shall be entitled to expend the remaining

50% of the rental income. However, the aforesaid floor has not been let

out and it continues to be in possession of respondent No.1, pursuant to

the Court handing over the key of the second floor to her. It would be

pertinent to note here that the keys of the second floor were deposited by

the petitioner in the Registry pursuant to an interim order of the Court.

Vide subsequent order dated 07.02.2012, the Division Bench permitted

respondent No.1 to carry out necessary rectification/repair, in order to

make the aforesaid portion habitable so that it could let out to a tenant. It

was further directed that bills of the expenditure incurred shall be

furnished to the Court and the question of reimbursement of the

expenditure shall be considered along with the writ petition.

3. Section 9 of the Act reads as under:-

"9. Order for maintenance.--(1) If children or relatives, as the case may be, neglect or refuse to maintain a senior citizen being unable to

maintain himself, the Tribunal may, on being satisfied of such neglect or refusal, order such children or relatives to make a monthly allowance at such monthly rate for the maintenance of such senior citizen, as the Tribunal may deem fit and to pay the same to such senior citizen as the Tribunal may, from time to time, direct.

(2) The maximum maintenance allowance which may be ordered by such Tribunal shall be such as may be prescribed by the State Government which shall not exceed ten thousand rupees per month."

4. It would thus be seen that the power and jurisdiction of the

Tribunal is restricted to grant of maintenance at the rate not exceeding

Rs 10,000/- per month. It is, therefore, quite evident from a bare perusal

of the above-referred Section that no power has been bestowed by the

Legislature on the Tribunal to direct handing over the possession of a

property to the applicant before it. Despite there being no such power

conferred upon it, the Tribunal directed the petitioner before this Court

to hand over the possession of the second floor to respondent No.1.

Though the case of respondent No.1 is that the aforesaid floor belongs to

her husband, who had bequeathed him and it was in her possession after

the death of her husband, even if that be true, the appropriate remedy for

respondent No.1 would be to approach a competent Civil Court in this

regard and the Tribunal had absolutely no jurisdiction to handover

possession of an immovable property of the respondent before him to

the applicant before him. It would be pertinent to note here that case of

the petitioner is that the aforesaid second floor was bequeathed by his

father to him and was in his possession. This disputed questions with

respect to title and possession of an immovable property can be gone

into by a Civil Court and not by a Tribunal, constituted under the

provisions of the Act.

5. For the reasons stated hereinabove, the impugned order dated

27.09.2010 passed by the Tribunal cannot be maintained and is

accordingly set aside. The learned counsel for the petitioner, on

instructions from the petitioner, who is present in the Court, states that

the petitioner is ready to pay Rs 10,000/- per month as compensation to

respondent No.1 from the date she had filed application for grant of

maintenance before the Tribunal and he shall continue to pay

compensation at the same rate during the life time of respondent No.1,

subject to further orders, if any, by a Competent Court of law.

6. The learned counsel for respondent No. 1 states that she had

incurred expenditure to the extent of about Rs 2 lakhs on repairs carried

out in terms of the permission granted by this Court vide order dated

07.02.2012. Respondent No.1 is directed to file vouchers/bills showing

the expenditure incurred by her on repair of the second floor of Property

No.C-24, Panchsheel Enclave, along with a supporting affidavit, within

one week from today. On filing of such an affidavit, the petitioner will

also pay the expenditure incurred by respondent No.1 on repair of the

second floor of Property No. C-24, Panchsheel Enclave to respondent

No. 1 along with arrears of maintenance calculated at the rate of Rs

10,000/- per month with effect from the date of filing of the petition

before the Tribunal. The payment shall be made within two weeks from

today. On such payment being made to respondent No.1, she shall

forthwith handover the keys of the second floor to the petitioner who

shall then be entitled to occupy the said floor. In future also, the

petitioner shall continue to pay maintenance to the respondent No. 1 at

the rate of Rs 10,000/- per month, subject to further order, if any, of a

competent Court.

7. It is made clear that this order does not come in the way of the

parties, establishing their respective title to the second floor of Property

No. C-24, Panchsheel Enclav, before a competent Court of law. The

amount, if any, paid by the petitioner to respondent No.1, pursuant to

the interim order of the Court dated 30.09.2010 shall be adjusted, while

complying with this order.

The writ petition stands disposed of. All the pending applications

also stand disposed of.

Dasti.

V.K. JAIN, J NOVEMBER 22, 2013 BG