Punjab-Haryana High Court
Nirmal Mehra vs Sub Divisional Magistrate Cum ... on 18 December, 2023
Author: Vikas Bahl
Bench: Vikas Bahl
Neutral Citation No:=2023:PHHC:163270
CWP-9871-2021 -1- 2023:PHHC:163270
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
208
CWP-9871-2021
Date of Decision: 18.12.2023
Nirmal Mehra ..... Petitioner
Versus
Sub Divisional Magistrate-cum-Presiding Officer
Maintenance Tribunal and others ..... Respondents
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
Present: Mr. Prateek Sodhi, Advocate
for the petitioner.
Mr. Ferry Sofat, Addl. A.G., Punjab and
Mr. Kunal Muthreja, AAG, Punjab.
Mr. B.S. Bhalla, Advocate
for respondents No.2, 4, 5 and 6.
Mr. Chetan Bansal, Advocate
for respondent No.3.
*****
VIKAS BAHL, J (ORAL)
CM-1647-CWP-2023
This is an application for taking up the petition for hearing to
some early date.
For the reasons mentioned in the application, the same is allowed
and the hearing of the petition is pre-poned to today itself.
Main Case
This is a civil writ petition filed under Article 226/227 of the
Constitution of India for issuance of a writ in the nature of certiorari for
quashing the order dated 12.11.2020 (Annexure P-10), whereby, respondent
No.1 had proceeded to dismiss the petition.
In a similar matter of even date i.e. CWP-27195-2023, this Court
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was pleased to pass the following order:-
"1. This is a civil writ petition filed under Article 226/227 of
the Constitution of India for issuance of a writ in the nature of
certiorari for setting aside the order dated 17.02.2023 (Annexure
P-5) passed by respondent No.2.
2. On 04.12.2023, this Court was pleased to pass the
following order:-
"Learned counsel for the petitioner has submitted that in
the present case, the petitioner, who is a senior citizen, had filed
an application for eviction and vide order dated 17.02.2023 by
placing reliance upon memo no.S-34(S.S) 2023/2761-83
Chandigarh dated 08.02.2023 issued by the Joint Director, (S.S.)
Department of Social Security, Women and Child Development,
Chandigarh, Punjab and in view of LPA-287-2020 titled as
"Surinder Kaur vs. State of Punjab", the case has been adjourned
sine die. Similar issues had arisen in the State of Haryana and
this Court while disposing of CWP-26035-2023 vide order dated
29.11.2023 had passed the following order:-
"1. Present writ petition has been filed under Article
226/227 of the Constitution of India for issuance of an
appropriate writ, order or directions especially in the nature of
mandamus directing respondent No.1 to entertain and to decide
the petition filed by the petitioner under the Haryana
Maintenance of Parents and Senior Citizens Rules, 2009 and
Maintenance and Welfare of Parents and Senior Citizens Act,
2007 (hereinafter referred to as 'Act of 2007') for evicting
respondent No.2.
2. On 20.11.2023, this Court was pleased to pass the
following order:-
"Learned counsel for the petitioner has submitted that in
the present case, an application had been filed by the petitioner
under the Haryana Maintenance of Parents and Senior Citizens
Rules, 2009 before the District Magistrate with a prayer for
protecting her life and property and with a further prayer for
directing private respondent no.2 to vacate the first floor of the
house in question owned by the petitioner. It has been pleaded in
paragraph 11 of the present petition that instead of passing an
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order on the said application, the authority had shown a
document to the present petitioner stating that the authority
cannot take any further action on the same and reference in this
regard has been made to the letter (Annexure P-9) issued by the
Director General, Social Justice, Empowerment, Welfare of SC &
BC and Antyodaya (SEWA) Department, Haryana to all the
District Magistrates, State of Haryana to stop from proceeding
further in pursuance of the action plan on account of the judgment
passed by a coordinate Bench of this Court in CWP-4744-2018
titled as "Simrat Randhawa vs. State of Punjab and others". It is
submitted that it is incumbent upon the authority to pass an order
and the matter cannot be kept in limbo merely on the basis of
some letter. It is further submitted that the Hon'ble Supreme
Court in Smt. S. Vanitha vs. The Deputy Commissioner Bengaluru
Urban District & Ors. Reported as 2021(15) SCC 730 had
observed that a Tribunal constituted under the Senior Citizens
Act, 2007 may have the authority to order an eviction, if it is
necessary and expedient to ensure the maintenance and protection
of the senior citizen or parent and that eviction, in other words
would be an incidence of the enforcement of the right to
maintenance and protection. Relevant part of para No.25 of the
said judgment is reproduced herein below: -
"xxx xxx xxx xxx xxx xxx
25. The substance of sub-section (2) of Section 23, as
submitted by the Second and Third respondents, is that the
Tribunal had the jurisdiction to pass an order directing the
eviction of the appellant who is their daughterin-law. According
to the submission, the power to order eviction is implicit in the
provision guaranteeing a "right to receive maintenance out of an
estate" and the enforcement of that right. In supporting the
submission, they have referred to the view which has been taken
by several High Courts, indicating that the Tribunal may order
the eviction of a child or a relative from the property of a senior
citizen, where there has been a breach of the obligation to
maintain the senior citizen. The Tribunal under the Senior
Citizens Act 2007 may have the authority to order an eviction, if it
is necessary and expedient to ensure the maintenance and
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protection of the senior citizen or parent. Eviction, in other words
would be an incident of the enforcement of the right to
maintenance and protection."
It is further submitted that this Court in the case titled as
"Ravi Kumar vs. Deputy Commissioner-cum-Appellate Tribunal,
Jhajjar and others" reported as 2023(4) RCR Civil 81 had upheld
the eviction order and placed reliance upon the said judgment of
the Hon'ble Supreme Court (Smt.S.Vanitha) and LPA-1387-2023
filed against the order of this Court has been dismissed on
19.10.2023.
Learned State counsel is directed to get the following
instructions:-
i) Whether after passing of the judgments of the Hon'ble
Supreme Court in Smt.S.Vanitha's case (supra) and of this Court
in Ravi Kumar's case (supra), which has been upheld by the
Hon'ble Division Bench of this Court in LPA-1387-2023, the
authorities are still not passing orders in cases wherein prayer for
eviction has been made and if so, the reasons for the same.
ii) Whether the letter (Annexure P-9) issued by the Director
General, Social Justice, Empowerment, Welfare of SC & BC and
Antyodaya (SEWA) Department, Haryana has any legal basis or
not.
iii) Whether, irrespective of the position of law, since it is
the duty of the authority under the Act to pass an order and not to
simply keep an application seeking eviction pending, then as to
why the authority concerned has not passed an order on the
same?
Adjourned to 29.11.2023.
To be taken up after the urgent matters.
November 20, 2023"
3. Learned State counsel in pursuance of the above-said order has
produced a copy of letter/instructions dated 29.11.2023, issued by
the Director General, Social Justice, Empowerment, Welfare of
SCs & BCs and Antyodaya (SEWA) Department, Haryana,
Chandigarh, which is taken on record and has been marked as
'Mark A'. The relevant portion of the said letter is reproduced
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herein under: -
"From
Director General
Social Justice, Empowerment, Welfare of SCs & BCs and
Antyodaya (SEWA) Department,
Haryana, Chandigarh
To,
Advocate General, Haryana
The Hon'ble Punjab and Haryana High Court
Chandigarh
No.21754 OAH/SEWA/2023 Dated 29-11-2023
Subject: CWP No. 26035 of 2023 titled as Smt. Sheela Devi Vs
District Collector-cum-Presiding Officer under Maintenance
Tribunal, Gurugram and ors.
With reference to your D.O. No.3679 dated
23.04.2023 on subject cited above, it is submitted that the Hon'ble
High Court, passing the orders dated 29.11.2023 in the subject
captioned writ petition, raised some queries on the following
points:
i) Whether after passing of the judgments of the Hon'ble
Supreme Court in Smt.S.Vanitha's case (supra) and of this Court
in Ravi Kumar's case (supra), which has been upheld by the
Hon'ble Division Bench of this Court in LPA-1387-2023, the
authorities are still not passing orders in cases wherein prayer for
eviction has been made and if so, the reasons for the same.
ii) Whether the letter (Annexure P-9) issued by the Director
General, Social Justice, Empowerment, Welfare of SC & BC and
Antyodaya (SEWA) Department, Haryana has any legal basis or
not.
iii) Whether, irrespective of the position of law, since it is
the duty of the authority under the Act to pass an order and not to
simply keep an application seeking eviction pending, then as to
why the authority concerned has not passed an order on the
same?
With regard to this, it is submitted that the Government of
India had enacted the Maintenance and Welfare of Parents and
Senior Citizens Act, 2007. The erstwhile Social Justice &
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Empowerment Department was a nodal department to implement
the provisions of the said Act. The erstwhile Social Justice &
Empowerment Department. being a nodal department, notified the
Maintenance and Welfare of Parents and Senior Citizens Rules,
2009. The State Government, through the erstwhile Social Justice
& Empowerment Department, introduced an Action Plan, 2015
vide which the District Magistrates in the State of Haryana were
empowered to pass the eviction orders to protect the property of
the senior citizens/parents. The State Government vide
notification dated 01.01.2023 merged the Welfare of Scheduled
Castes and Backward Classes Department with the erstwhile
Social Justice & Empowerment Department and name of the
erstwhile Social Justice & Empowerment Department has been
substituted with the Social Justice, Empowerment, Welfare of
Scheduled Caste and Backward Classes and Antyodaya (SEWA)
Department, Haryana. Further, the point-wise response of the
said queries is herein under:-
i) It is submitted that as per provisions of section 7 of the
Maintenance and Welfare of Parents and Senior Citizens Act,
2007, the State Government is empowered to constitute a
Maintenance Tribunals to decide the cases pertaining to
maintenance of senior citizens. Pursuant thereto, the Maintenance
Tribunals and Appellate Tribunals under Rule 3 of the Haryana
Maintenance and Welfare of Parents and Senior Citizens Rules,
2009 had been constituted by the State of Haryana with the
composition as mentioned therein.
Accordingly, the said Tribunals have been constituting/re-
constituting, time to time, by the State of Haryana by way of
issuing gazette notification. Section 23 of the said Act already
empowers the tribunals to declare the transfer of property as void,
at the option of such senior citizen, in case it appears to the
tribunal that the transfer of property made by the senior citizen,
by way of gift or otherwise, was influenced by
fraud/coercion/under undue influence. Section 23 of the said Act
is reproduced as under.
"Transfer of property to be void in certain circumstances
1. Where any senior citizen who, after the commencement
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of this Act, has by way of gift or otherwise, his property, subject to
the condition that the transferee shall provide the basic amenities
and basic physical needs to the transferor and such transferee
refuses or fails to provide such amenities and physical needs, the
said transfer of property shall be deemed to have been made by
fraud or coercion or under undue influence and shall at the option
of the transferor be declared void by the Tribunal.
2. Where any senior citizen has a right to receive
maintenance out of an estate and such estate or part, thereof is
transferred, the right to receive maintenance may be enforced
against the transferee if the transferee has notice of the right, or if
the transfer is gratuitous; but not against the transferee for
consideration and without notice of right.
3. If any senior citizen is incapable of enforcing the rights
under sub-sections (1) and (2), action may be taken on his behalf
by any of the organisation referred to in Explanation to sub-
section (1) of section 5."
Even, in S.Vanitha Vs the Deputy Commissioner, Bengaluru
Urban District and Others the Hon'ble Apex Court has also
observed that the power to order of eviction is construed in the
provisions of the Maintenance and Welfare of Parents and Senior
Citizens Act, 2007 i.e. right to receive maintenance out of an
estate.
The relevant portion of the judgment is reproduced as under:-
"...25. The substance of sub-section (2) of Section 23, as
submitted by the Second and Third respondents, is that the
Tribunal had the jurisdiction to pass an order directing the
eviction of the appellant who is their daughter-in-law. According
to the submission, the power to order eviction is implicit in the
provision guaranteeing a "right to receive maintenance out of an
estate" and the enforcement of that right. In supporting the
submission, they have referred to the view which has been taken
by several High Courts, indicating that the Tribunal may order
the eviction of a child or a relative from the property of a senior
citizen, where there has been a breach of the obligation to
maintain the senior citizen. The Tribunal under the Senior
Citizens Act 2007 may have the authority to order an eviction, if it
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is necessary and expedient to ensure the maintenance and
protection of the senior citizen or parent. Eviction, in other words
would be an incident of the enforcement of the right to
maintenance and protection..."
Whereas, power of eviction had been conferred by the State
Government to all the District Magistrates in the State of
Haryana, by notifying an Action Plan, 2015 vide notification
dated 26.05.2015 but the same was struck off to the extent of
Clauses 1 to 3 ie. (1) Procedure for eviction from
property/residence building belonging to/occupied by senior
citizens/parents, (2) Eviction order from property/residential
building of senior citizens/parents and (3) Enforcement of orders
by a coordinate bench of the Hon'ble High Court by passing the
judgment dated 23.01.2020 in CWP No. 4744 of 2018 titled as
Simrat Randhawa Vs State of Punjab & Others and there is no
stay in operation of judgment dated 23.01.2020 in LPA No. 702 of
2021 titled as State of Haryana and Others Vs Simrat Randhawa
filed by the State of Haryana.
In the present matter in hand, an application has been
made before the District Magistrate for eviction and the District
Magistrate is unable to pass the eviction orders as the Action
Plan, 2015, under which he was empowered to evict, has already
been struck off, as mentioned above.
Hence, the Maintenance Tribunals can pass the eviction
orders in view of provisions of Section 23 of the said Act as there
is no bar at the same but the District Magistrates can not pass the
eviction orders on account of judgment dated 23.01.2020 in
Simrat Randhawa's case (Supra).
ii) It is submitted that as mentioned above the power of
eviction was assigned to the District Magistrates in the State of
Haryana by virtue of the Action Plan, 2015 by the State
Government but the same was struck off to the extent of Clauses 1
to 3 by the Hon'ble Bench of Justice Rajeev Narain Raina vide
judgment dated 23.01.2020 passed in CWP No. 4744 of 2018
titled as Simrat Randhawa Vs State of Punjab & Others. The said
judgment has been challenged by this department by way of filing
an LPA No. 702 of 2021 titled as State of Haryana and Others Vs
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Simrat Randhawa but the Division Bench of the Hon'ble High
Court did not stay the same. Despite of this, the eviction orders
were being passed by the District Magistrates as per mandates of
the said Action Plan. Therefore, this department, being nodal
department to implement the provisions of the Maintenance and
Welfare of Parents and Senior Citizens Act, 2007 has issued a
letter dated 19.01.2023 to all the District Magistrates in the State
of Haryana to stop the proceedings of eviction under the Action
Plan, 2015 to the extent of Clauses 1 to 3 in light of the judgment
dated 23.01.2020 passed in Simrat Randhawa's case (Supra), only
to avoid the contempt proceedings against the said judgment. Next
date of hearing has been fixed by the Hon'ble High Court in LPA
No. 102 of 2021 is 06.02.2024. It is clarified here that this
department never issued the directions to the Maintenance
Tribunals not to do proceed with for eviction under Section 23 of
the said Act.
iii) It is submitted that the District Magistrates in the State
of Haryana were empowered to pass the eviction orders under the
Action Plan, 2015 notified by the State Government vide
Notification dated 26.05.2015 and they were duty bound to do so
but they have been deprived of the said powers as the said Action
Plan to extent of Clauses 1 to 3 is not in existence due to passing
of judgment dated 23.01.2020 passed in Simrat Randhawa's case
(Supra). Even, despite of filing an LPA No.702 of 2021) there is
no stay in the said judgment, till date. Thus, the District
Magistrates cannot entertain and decide the applications seeking
eviction in exercising the powers conferred to them under the said
Action Plan on account of setting aside the same in Simrat
Randhawa's case (Supra).
Therefore, you are requested to kindly apprise the Hon'ble
High Court in respect of all the said facts.
Sd/-
Joint Director
Social Justice, Empowerment,
Welfare of SCs & BCs and Antyodaya (SEWA) Department,
Haryana, Chandigarh"
A perusal of the above letter would show that as per the
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stand of the State, the Maintenance Tribunal has the power to
pass an eviction order in view of the provisions of Section 23 of
the Act of 2007 and also in view of the law laid down by the
Hon'ble Supreme Court in Smt. S Vanitha Vs. The Deputy
Commissioner Bengaluru Urban District & Ors., reported as
2021(15) SCC 730, para 25 of which, has been reproduced in the
said letter. The stand of the State is that since the action plan of
2015 has been set aside by the Co-ordinate Bench of this Court
and there is no stay of the said judgment in the LPA filed by the
State and the private parties, thus, the District Magistrates in the
State of Haryana, who were empowered to pass orders of eviction
under the action plan, are not entertaining the said petitions in
order to avoid contempt proceedings. It is further clear that in
view of the law laid down in S. Vanitha's case (supra), relevant
portion of which has been reproduced in the said instruction
(Mark 'A'), as per the stand of the State, the Maintenance
Tribunal can pass an eviction order in view of the provisions of
Section 23 of the Act of 2007 and the above-said judgment, after
taking into consideration the relevant factors, in accordance with
law.
4. Learned counsel for the petitioner has submitted that
since the petition (Annexure P-8) has been filed by the petitioner
before the District Magistrate which as per the above stand of the
State is not maintainable before the said authority and is
maintainable before the Maintenance Tribunal, thus, the
petitioner be permitted to withdraw the present writ petition with
liberty to file a petition under Section 23 of the Act of 2007 before
the Maintenance Tribunal after making all the necessary prayers
including the prayer of eviction.
4. In view of the above, the present writ petition is
dismissed as withdrawn, with the aforesaid liberty.
5. It is made clear that in case any such petition is filed
before the Maintenance Tribunal, then, the same would be
considered, as expeditiously as possible, independently, in
accordance with law."
A perusal of the above order would show that the issue was
resolved by the State of Haryana by issuing a detailed letter dated
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29.11.2023, stating that the Maintenance Tribunal has power to
pass eviction orders in view of the provisions of Section 23 of the
Act of 2007 and also in view of law laid down by the Hon'ble
Supreme Court in Smt. S.Vanitha (supra).
Notice of motion for 18.12.2023.
Mr. Ferry Sofat, Addl.A.G. Punjab and Mr.Kunal Muthreja,
AAG, Punjab, appear and accept notice on behalf of respondents
no.1 and 2.
Learned State counsel appearing for respondents no.1 and
2 is directed to get the following instructions on or before the next
date of hearing:-
i) Whether even after passing of the judgments of the
Hon'ble Supreme Court in Smt.S.Vanitha's (supra) and of this
Court in Ravi Kumar's (supra), which has been upheld by the
Hon'ble Division Bench of this Court in LPA-1387-2023, the
authorities are still not passing orders in cases wherein prayer for
eviction has been made and if so, the reasons for the same.
ii) Whether the letter no. S-34(S.S) 2023/2761-83
Chandigarh dated 08.02.2023 issued by the Joint Director, (S.S.)
Department of Social Security, Women and Child Development,
Chandigarh, Punjab has any legal basis or not.
Liberty is granted to the petitioner to serve respondent no.4
through dasti process also.
To be taken up at 12:00 noon."
3. In pursuance of the said order, learned State counsel has
placed on record instructions No.37848 dated 18.12.2023,
relevant portion of the same is as under:-
"Department of Social Security and Women & Child
Development, Punjab, Chandigarh, SCO No. 102-103, Sector-
34A, Ph. 2602726, 2608746.
From
Additional Director
Department of Social Security and
Women & Child Development,
Punjab.
To
Advocate General, Punjab
The Hon'ble Punjab and Haryana High Court
Chandigarh.
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No.37848 Dated 18.12.2023
Sub:- CWP No.27195 of 2023 titled as "Gurdial Singh vs
State of Punjab and Others".
With reference to your D.O No. 39460 dated
13.12.2023 on subject cited above, it is submitted that the Hon'ble
High Court passed the order dated 04.12.2023 in the subject
captioned writ petition, raised some queries on the following
points:-
i) Whether even after passing of the judgments of the Hon'ble
Supreme Court in Smt. S. Vanitha's (supra) and of this Court in
Ravi Kumar's (supra), which has been upheld by the Hon'ble
Division Bench of this Court in LPA-1387-2023, the authorities
are still not passing orders in cases wherein prayer for eviction
has been made and if so, the reasons for the same.
ii) Whether the letter No.S-34(S.S) 2023/2761-83 Chandigarh
dated 08.02.2023 issued by the Joint Director (SS), Department of
Social Security, Women and Child Development, Chandigarh,
Punjab has any legal basis or not.
With regard to this, it is submitted that the Government of
India had enacted the Maintenance and Welfare of Parents and
Senior Citizens Act, 2007. The Department of Social Security and
Women and Child Development, Punjab is the nodal department
to implement the provisions of the said Act. The Department of
Social Security and Women and Child Development, Punjab being
a nodal department, notified the Maintenance and Welfare of
Parents and Senior Citizens Rules, 2012. The State Government,
through the Department of Social Security and Women and Child
Development, Punjab, introduced an Action Plan, 2014 vide
which the District Magistrates in the State of Punjab were
empowered to pass the eviction orders to protect the property of
the senior citizens/parents. Further the point-wise response to the
said queries is herein under:-
i) It is submitted that as per provisions of Section 7 of
the Maintenance and Welfare of Parents and Senior Citizens Act,
2007, the State Government is empowering to constitute a
Maintenance Tribunal to decide the cases pertaining to
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maintenance of senior citizens. Pursuant thereto, the
Maintenance Tribunals and Appellate Tribunals under Rule 3 of
the Punjab Maintenance and Welfare of Parents and Senior
Citizens Rules, 2012 had been constituted by the State of Punjab
with the composition as mentioned therein.
Accordingly, the said Tribunals have been
constituting/reconstituting, time to time, by the State of Punjab by
way of issuing gazette notification. Section 23 of the said Act
already empowers the tribunals to declare the transfer of property
as void, at the option of such senior citizen, in case it appears to
the tribunal that the transfer of property made by the senior
citizen, by way of gift or otherwise, was influenced by
fraud/coercion/under influence. Section 23 of the said Act is
reproduced as under:-
"Transfer of property to be void in certain circumstances
1. Where any senior citizen who, after the
commencement of this Act, has by way of gift or otherwise, his
property, subject to the condition that the transferee shall provide
the basic amenities and basic physical needs to the transferor and
such transferee refuses or fails to provide such amenities and
physical needs, the said transfer of property shall be deemed to
have been made by fraud or coercion or under undue influence
and shall at the option of the transferor by declared void by the
Tribunal.
2. Where any senior citizen has a right to receive
maintenance out of an estate and such estate or part thereof is
transferred, the right to receive maintenance may be enforced
against the transferee if the transferee has notice of the right, or if
the transfer is gratuitous; but not against the transferee for
consideration and without notice of right.
3. If, any senior citizen is incapable of enforcing the
rights under sub-sections (1) and (2), action may be taken on his
behalf by any of the organisation referred to in Explanation to
sub-section (1) of section 5.
Even, in S Vanitha Vs. the Deputy Commissioner,
Bengaluru Urban District and Others, the Hon'ble Apex Court
has also observed that the power to pass order of eviction is
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construed in the provisions of the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 i.e. right to receive
maintenance out of an estate. The relevant portion of the
judgment is reproduced as under:-
"...25. The substance of sub-Section (2) of Section 23, as
submitted by the Second and Third respondents, is that the
Tribunal had the jurisdiction to pass an order directing the
eviction of the appellant who is their daughter-in-law. According
to the submission, the power to order eviction is implicit in the
provision guaranteeing a „right to receive maintenance out of an
estate‟ and the enforcement of that right. In supporting the
submission, they have referred to the view which has been taken
by several High Courts, indicating that the Tribunal may order
the eviction of a child or a relative from the property of a senior
citizen, where there has been a breach of the obligation to
maintain the senior citizen. The Tribunal under the Senior
Citizens Act 2007 may have the authority to order an eviction, if it
is necessary and expedient to ensure the maintenance and
protection of the senior citizen or parent. Eviction, in other words
would be an incident of the enforcement of the right to
maintenance and protection...".
Whereas, power of eviction had been conferred by the State
Government to all the District Magistrates in the State of Punjab
by notifying an Action Plan, 2014 but the same was struck off to
the extent of Clauses 1 to 3 which are reproduced as under:-
(1) Procedure for eviction from property/residence building
belonging to/occupied by senior citizens/parents,
(2) Eviction order from property/residential building of senior
citizens/parents and
(3) Enforcement of orders by a coordinate Bench of the
Hon;ble High Court by passing the judgment dated 23.01.2020 in
CWP No.4744 of 2018 titled as Simrat Randhawa Vs. State of
Punjab and others and there is no stay in operation of judgment
dated 23.01.2020 in LPA No.702 of 2021 titled as State of
Haryana and others Vs. Simrat Randhawa filed by the State of
Haryana.
In the present matter in hand, an application has been
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made before the District Magistrate for eviction and the District
Magistrate is unable to pass the eviction orders as the Action
Plan, 2014, under which he was empowered to evict, has already
been struck off, as mentioned above. Hence, the Maintenance
Tribunals can pass the eviction orders in view of provisions of
Section 23 of the said Act as there is no bar in the same but the
District Magistrate cannot pass the eviction orders on account of
the judgment dated 23.01.2020 in Simrat Randhawa's case
(supra).
ii) It is submitted that as mentioned above the power of
eviction was assigned to the District Magistrates in the State of
Punjab by virtue of the Action Plan, 2014 by the State
Government but the same was struck off to the extent of Clauses 1
to 3 by the Hon'ble Bench of Justice Rajeev Narain Raina vide
judgment dated 23.01.2020 passed in CPW No.4733 of 2018 titled
as "Simrat Randhawa Vs. State of Haryana and others". The
said judgment has been challenged bythe State of Haryana by way
of filing an LPA No.702 of 2021 titled as "State of Haryana and
others Vs. Simrat Randhawa" bu the Division Bench of the
Hon'ble High Court did not stay the same. Depsite, this, the
eviction orders were being passed by the District Magistrates as
per mandates of the aforecited Action Plan. Therefore, this
department, being the nodal department to implement the
provisions of the Maintenance and Welfare of Parents and Senior
Citizens Act, 2007 has issued a letter dated 17.02.2023 to all the
District Magistrate in the State of Punjab to stop the proceedings
of eviction under the Action Plan, 2014 to the extent of Clauses 1
to 3 in the light of the judgment dated 23.01.2020, passed in
Simrat Randhawa's case (supra), only to avoid contempt
proceedings. The next date of hearing has been fixed by the
Hon'ble High Court in LPA No.102 of 2021 as 06.02.2024. It is
clarified here that this Department never issued the directions to
the Maintenance Tribunals not to proceed with eviction matters
under Section 23 of the said Act.
(iii) It is submitted that the District Magistrates in the State of
Punjab were empowered to pass the eviction orders under the
Action Plan, 2014 and they were duty bound to do so but they
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have been deprived of the said powers as the said Action Plan to
extent of Clauses 1 to 3 is not in existence due to passing of
judgment dated 23.01.2020 in Simrat Randhawa's case (supra).
Despite LPA No.702 of 2021, there is no stay on the said
judgment, till date. Thus, the District Magistrates cannot
entertain and decide the applications seeking eviction in
exercising the powers conferred to them under the said Action
Plan on account of setting aside the same in Simrat Randhawa's
case (supra).
Therefore, you are requested to kindly apprise the Hon'ble
High Court as to the above facts.
Additional Director
Department of Social Security and
Women & Child Development,
Punjab, Chandigarh"
4. A perusal of the above instructions would show that in view
of the judgment passed by the Hon'ble Supreme Court and by this
Court, it has been decided by the State of Punjab that the
Maintenance Tribunal can pass the eviction orders in view of the
provisions of Section 23 of the Maintenance and Welfare of
Parents and Senior Citizens Act as there is no bar regarding the
same but the District Magistrate cannot pass the eviction orders
on account of the judgment dated 23.01.2020 passed by a Co-
ordinate Bench in CWP-4744-2018 titled 'Simrat Randhawa Vs.
State of Punjab'.
5. Learned counsel for the petitioner has submitted that in the
present case, he had filed an application before the Additional
Deputy Commissioner, Patiala in pursuance of the District
Magistrate having delegated its powers under Section 22 to the
Additional Deputy Commissioner, Patiala and thus, he states that
he may be permitted to withdraw the said application with liberty
to file a fresh application before the Maintenance Tribunal in
accordance with the latest instructions issued by the State of
Punjab.
6. Learned counsel appearing for respondent No.3 and 4 has
submitted that in case any such application is filed, respondents
No.3 and 4 be permitted to raise all the pleas which are available
to them, in accordance with law.
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7. Keeping in view the above said facts and circumstances, the
present writ petition is disposed of with the following directions:-
(i) It would be open to the petitioner to file an application for
eviction in addition to other pleas that he might wish to raise
before the Maintenance Tribunal.
(ii) The Maintenance Tribunal would decide the same after
hearing all the parties concerned and after giving due opportunity
to file reply to respondents No.3 and 4.
(iii) The Maintenance Tribunal would also take into
consideration the instructions dated 18.12.2023 passed by the
State of Punjab and decide the matter, in accordance with law.
(iv) The filing of the earlier petition by the Senior Citizen before
the District Magistrate/ADA and the order passed thereon by the
said authority, would not come in the way of the petitioner
instituting the fresh proceedings before the Maintenance Tribunal
in view of the instructions dated 18.12.2023 of Government of
Punjab. The above said earlier petition would be deemed to have
been withdrawn, with liberty to file a fresh petition, as detailed in
the present order.
(iv) In case any such petition is filed by the Senior Citizen, the
Maintenance Tribunal is requested to decide the same, as
expeditiously as possible".
Learned counsel for the petitioner has submitted that in the present
case also, the impugned order dated 12.11.2020 has been passed by Additional
District Magistrate-cum-District Magistrate exercising the powers under
Section 22 of the Maintenance and Welfare of Parents and Senior Citizens Act,
2007, which powers had been delegated to him.
In view of the above, the present petition is disposed of in the
same terms as passed in CWP-27195-2023.
(VIKAS BAHL)
18.12.2023 JUDGE
D.Bansal
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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