Delhi High Court
Rohit Gupta And Anr. vs Government Of Nct Of Delhi And Ors on 16 September, 2019
$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 16th September, 2019
+ W.P.(C) 9478/2017
ROHIT GUPTA AND ANR. ..... Petitioners
Through Mr. Sunil K. Mittal with Mr. Divgosh
Arora and Mr. Harshit Vashisht,
Advocates
versus
GOVERNMENT OF NCT OF DELHI AND ORS. ..... Respondents
Through Mr. Ramesh Singh, Standing Counsel
GNCTD with Mr. Chirayg Jain and
Mr. Ishan Agarwal, Advocates.
Ms. Amrit Kaur Oberoi with Ms.
Sonali S.S, Advocates for respondent
no.4.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
G.S. SISTANI, J. (ORAL)
1. The present writ petition is filed under Article 226 of the Constitution
of India by the petitioners inter alia seeking the following prayers:
"a) Issue a writ of Certiorari or any other writ, order or
direction thereby striking down the Notifications
No.30(405)/ Amendment of Rules-MAWPSC2007/
DD(SS)/DSW/ 2015-16/24836-865 dated 19.12.2016 as
well as subsequent Notification No.30(405)/ Amendment
of Rules-MAWPSC2007/DD(SS)/DSW/ 2015-16/11684
-11712 dated 28.07.2017 issued by the Respondent No.1,
i.e. Government of NCT of Delhi in purported exercise of
powers conferred under Section 32 of the Maintenance &
Welfare of Parents & Senior Citizens Act, 2007 as being
ultra-vires, and that those Rules cannot be used as a
subterfuge to introduce a new substantive provision under
the Act;
b) Issue appropriate writ, order or direction thereby setting-
aside the order dated 24.10.2017 passed by the Ld.
Appellate Authority(Respondent Nop.2) whereby the
order dated 09.10.2017 passed by Sh. B.S. Jaglan, Ld.
Deputy Commissioner/ District Magistrate (South-East
District), New Delhi (respondent No.3) in Case
No.110/2017 titled as "Smt. Omwati Gupta vs. Sh. Rohit
Gupta & Ors." has been upheld and incidentally also
quash the order dated 09.10.2017.
2. Both the prayers made in the writ petition stand answered. As far as
prayer (a) is concerned, it is decided against the petitioners by a
decision dated 30.05.2019 passed in W.P.(C).347/2018 in the case of
Aarshya Gulati (Through: Next Friend Mrs. Divya Gulati) and Ors. v.
Government of NCT of Delhi and Ors. Prayer (b) stands decided in
favour of the petitioners in terms of a judgment dated 13.11.2018 of a
learned Single Judge of this Court in the case of W.P.(C). 11703/2018
in the case of Sudesh Chhikara v. State(Govt. of NCT of Delhi) & Ors.
The relevant paragraphs 12 to 14 of the judgment in the case of Sudesh
Chhikara (supra), are reproduced below:
"12. Clause (ii) of Rule 22(3)(4) of the said Rules only
incorporates the provisions regarding disposal of an appeal
as provided under Section 16 of the Act. The provisions
regarding disposal of an appeal by the Appellate Tribunal
are set out in sub-sections (2) to (7) of Section 16 of the
Act. Sub- section (2) of Section 16 of the Act pertains to
service of notice on the respondent; sub-section (3)
of Section 16 of the Act enables the Appellate Tribunal to
call for records of the proceedings from the Tribunal against
whose order the appeal is preferred; sub-section (4) of
Section 16 of the Act provides that the Appellate Tribunal
may after examining the appeal and records either allow or
reject an appeal; sub-section (5) of Section 16 of the Act
provides that the order of the Appellate Tribunal would be
final and further provides that an appeal would not be
rejected unless an opportunity has been provided to both the
parties of being heard in person or through a duly authorised
representative; sub-section (6) of Section 16 of the Act
provides that the Appellate Tribunal would endeavour to
pronounce its order in writing within a period of one months
of receipt of the appeal; and, sub- section (7) of Section
16 of the Act provides that a copy of the order shall be sent
to both the parties free of cost. By virtue of Clause (ii) of
Rule 22(3)(4) of the said Rules, the aforesaid provision also
apply to appeals before a Divisional Commissioner.
However, the provisions of Section 16 (1) of the Act, which
pertains to the institution of an appeal - and not its disposal -
cannot be readily inferred as incorporated by reference in
Rule 22(3)(4) of the said Rules.
13. Before concluding, it would also be relevant to refer to
the decision of a Division Bench of Punjab and Haryana
High Court in Paramjit Kumar Saroya v. Union of India
and Another: AIR 2014 P&H 121, wherein the Court had
interpreted Section 16 (1) of the Act to also provide the
right of appeal to any of the affected parties. In terms of the
said decision, the provisions of Section 16 (1) of the Act
cannot be read to limit the appeal only to one party (Senior
Citizens or Parents as the case may be), as the same would
render the provisions invalid. The Court had reasoned that
to sustain the validity of Section 16 (1) of the Act, the same
must be interpreted by applying the principles of purposive
interpretation and casus omissus. The Court rejected the
challenge to the validity of Section 16 (1) of the Act but
held that "it must be read to provide for the right of appeal
to any of the affected parties."
14. This Court is not called upon to examine the validity
of Section 16 (1) of the Act or even to decide whether an
appeal under Section 16 (1) of the Act is available to either
of the parties (and not to senior citizens or parents alone). It
is not necessary to consider the aforesaid question in this
petition as on a plain reading of Rule 22(3)(4) of the said
Rules, the appeal to a Divisional Commissioner is not
restricted only to senior citizens or parents, as the case may
be."
3. Mr. Ramesh Singh, learned counsel for the Government of NCT of
Delhi submits that the judgment passed by the learned Single Judge of
this Court has been accepted by the Government.
4. Mr. Mittal, learned counsel for the petitioners points out that in view of
this interpretation of Section 16 of the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 and Rule 23(3)(4) of the Delhi
Maintenance and Welfare of Parents and Senior Citizens Rules, 2009,
he would approach the competent court of jurisdiction by filing a fresh
appeal against the order dated 09.10.2017, to which the counsels for the
respondents have no objection.
5. In case such an appeal is filed within 15 days of passing of this order,
the plea of limitation will not be raised by respondent no.4, as agreed by
the counsel appearing.
6. With these directions, the writ petition stands disposed of.
G.S. SISTANI, J
ANUP JAIRAM BHAMBHANI, J
SEPTEMBER 16, 2019
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