Punjab-Haryana High Court
Naresh Kumar And Anr vs The Appellate Tribunal And Ors on 7 November, 2023
Neutral Citation No:=2023:PHHC:141561
CWP-25091-2023 -1- 2023:PHHC:141561
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(107)
CWP-25091-2023
Date of decision: - 07.11.2023
Naresh Kumar and another
....Petitioners
Versus
The Appellate Tribunal, Maintenance & Welfare of Parents and
Senior Citizens Act, 2007 and others
.....Respondents
CORAM : HON'BLE MR. JUSTICE VIKAS BAHL
Present:- Mr. Arpandeep Narula, Advocate, for the petitioners.
****
VIKAS BAHL, J. (ORAL)
1. This writ petition has been filed under Article 226 of the
Constitution of India for issuance of a writ in the nature of certiorari for
setting aside the impugned order dated 04.08.2021 (Annexure P-4) passed
by respondent No.2 vide which the petitioners had been ordered to vacate
House No.1639, Near Sector-32, Prem Puri (VPO Jharsa Road),
Gurugram. Challenge is also made to the order dated 26.09.2023
(Annexure P-7) passed by respondent No.1 vide which the appeal against
the order dated 04.08.2021 (P-4) has been dismissed.
2. Brief facts of the case are that respondent No.3, who is 72
years old father of petitioner No.1, had filed an application (Annexure P-
1) under the Maintenance and Welfare of Parents & Senior Citizens Act,
2007 (hereinafter referred to as "Act of 2007") for directing the
petitioners to hand over the physical possession of the house in question.
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In the said application, it was stated by respondent No.3 that he is a senior
citizen and is also an Indian Air Force Veteran. In paragraph 3 of the said
application, it was specifically stated that he is the owner of the property
in question. It was further averred that the petitioners have made the life
of respondent No.3 unbearable/miserable as they do not give respect to
him and use foul language and say filthy words and have even tried to hit
respondent No.3 on various occasions by different objects. It was further
averred that the petitioners have given oral warnings to respondent No.3
to throw him out from his own house. In paragraph 8 of the said
application, it was stated by respondent No.3 that he had ousted petitioner
No.1 from his property through advertisement in a national newspaper i.e.
Dainik Jagran on 24.09.2019 and a copy of the said advertisement was
annexed along with the said application. In paragraph 9, it was stated that
petitioner No.1 is a car mechanic/technician and is using the residential
premises for commercial purposes, thus, creating disturbance in peaceful
living of respondent No.3 and other family members. In paragraph 10 of
the application, a reference was made to a complaint given by respondent
No.3 to the police against the petitioners and a copy of the said complaint
was annexed as Annexure A-2. It was stated in paragraph 14 that all the
efforts of conciliation at the family level have failed due to adamant
attitude of the petitioners. A joint reply (Annexure P-2) was filed by the
petitioners to the said application and in the said reply the fact that
respondent No.3 is a senior citizen and also is the owner of the property
was not disputed as the contents of paras No.1 and 3 of the application
were stated to be matter of record. The filing of the complaint by the
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father to the police was not disputed and it was averred in paragraph 10 of
the said reply that the complaint was based on false and frivolous
grounds.
3. The District Magistrate, Gurugram vide order dated
04.08.2021 allowed the said application of respondent No.3 and directed
the petitioners to vacate the house in question. A perusal of the said order
would show that in paragraph No.2, it was observed that the matter was
sent to the Sub Divisional Officer (Civil), Badshahpur for verification of
title and as per the said verification, respondent No.3 was found to be the
owner in possession of the property in question, vide registered sale deed
dated 22.02.1973. In paragraph 6, it was specifically mentioned that the
matter had been sent for mediation and both the parties were directed to
appear before the ADR Centre, Courts Complex, Gurugram on
12.01.2021, but the ADR Centre had sent a report with the remarks that
the mediation between the parties had remained unsuccessful and
accordingly, the order of eviction was passed. Thereafter, the petitioners
had filed a petition bearing CWP-18313-2021 before this Court, which on
the objection of respondent No.2 and the State to the effect that there was
an alternative remedy available to the petitioners, was withdrawn by the
petitioners with liberty to seek the alternative remedy in accordance with
law. The appeal filed by the petitioners was dismissed vide order dated
26.09.2023 (Annexure P-7) on the ground that since the order dated
04.08.2021 had been passed by the District Magistrate, Gurugram and the
appeal was also listed before the same authority, the same could not be
heard by him and accordingly, the appeal was held to be non-maintainable
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by the appellate Tribunal.
4. Learned counsel for the petitioners has raised three
arguments to challenge the orders passed by the authorities below. The
first argument raised by learned counsel for the petitioners is that the
property in question is un-partitioned Joint Hindu Family Coparcenary
property, thus, respondent No.3 is not entitled to evict the petitioners. The
second argument raised by learned counsel for the petitioners is that there
is a family settlement between the parties by virtue of which share of
respondent No.3 in the house in question has further been given to four
sons of respondent No.3, which includes petitioner No.1 and on the said
ground also, petitioners cannot be evicted from the property in question.
In support of the said argument, the petitioner has relied upon affidavits
( Annexures P-12 and P-13). The third argument raised by learned
counsel for the petitioners is to the effect that a petition for eviction is not
maintainable, inasmuch as, a Co-ordinate Bench of this Court in case
titled as Simrat Randhawa Vs. State of Punjab and others, passed in
CWP-4744 of 2018 has set aside the action plan and LPA against the
same has been filed, but there is no stay operation of the said judgment.
Learned counsel for the petitioners has further pointed out that as per the
order dated 26.09.2023 (Annexure P-7), the appeal is not maintainable
and it has been observed by the Appellate Tribunal that the appeal is not
maintainable since the Appellate Tribunal constitutes the District
Magistrate and even the first order dated 04.08.2021 was passed by the
District Magistrate and at the time of earlier withdrawal of the petition,
learned counsel for the petitioner was not aware that the Appellate
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Tribunal is constituted by the District Magistrate himself and the fact was
also not brought to the notice of the Court. It is submitted that in view of
the same, the petitioners may be permitted to challenge the order dated
04.08.2021 before this Court.
5. This Court has heard learned counsel for the petitioners and
has perused the paper-book.
6. The fact that respondent No.3 is a senior citizen has not been
disputed before this Court. Moreover, a perusal of the memo of parties
would show that respondent No.3 is stated to be 72 years of age. In
paragraph No.1 of the application/complaint (Annexure P-1) it was
specifically averred by respondent No.3 that he is a senior citizen and the
said fact has not been denied in para No.1 of the reply on merits, wherein,
it has been stated that the contents of para No.1 of the petition are matter
of record. The fact that the petitioner is the owner of the property in
question has been specifically averred in para No.3 of the said application
(Annexure P-1), the relevant of portion of which is reproduced herein
below: -
"3. That the complainant is the owner of the house no.1639,
Near Sector-32, Prem Puri (Jharsa Road), Gurugram, Haryana-
122001. That the house tax receipt is hereby attached with the
complaint which was paid by the complainant."
7. In the joint reply filed by the petitioners, the said aspect has
not been denied and rather it had been stated that the same is matter of
record. Para No.3 of the reply (Annexure P-2) is reproduced herein
below: -
"3. That the contents of para No.3 of the petition are matter
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of record. However, the house tax and other charges of the house is
being borne by the answering respondents."
8. During the course of arguments, learned counsel for the
petitioners has fairly stated that even as per the sale deed dated
22.10.1973 (P-3) relied upon by the petitioners, the petitioners are not
shown to be the owners/co-sharers in the same and it is respondent No.3
along with his three brothers, who had purchased the property for due
consideration and the present property in question is a part of the said
property which has come to the share of respondent No.3. The above-said
pleadings and facts as well as the sale deed dated 22.10.1973 (P-3) prove
beyond doubt that respondent No.3 is the owner of the property in
question and the petitioners are neither co-sharers or have any right of
ownership in the same. The first argument raised by learned counsel for
the petitioners to the effect that the petitioners cannot be evicted from the
property in question as the property is un-partitioned Joint Hindu Family
Coparcenary property is completely misconceived. It has not been
disputed by learned counsel for the petitioners that no such plea had been
taken in the reply (Annexure P-2) and rather averments in para 3 of the
application to the effect that respondent No.3 is the owner of house in
question has not been disputed and it is stated to be matter of record and
thus, the plea now sought to be raised before this Court is beyond
pleadings. Neither any documents, much less, a document of title was
produced by the petitioners before the authorities or has been annexed
before this Court to even remotely show that the property was inherited
by respondent No.3 from his forefathers and rather the sale deed dated
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22.10.1973 (P-3) in fact show that it is respondent No.3 along with his
brothers, who had purchased the property for a valuable consideration
from a third party and thus, it cannot be said that the property is
un-partitioned Joint Hindu Family Coparcenary property. Moreover, there
is no adjudication by any Court of competent jurisdiction i.e. civil Court
that the property in question is un-partitioned Joint Hindu Family
Coparcenary property and the petitioners are coparceners in the same. In
summary proceedings, like the present proceedings, it is the pleadings of
the parties and the document of title which is to be considered by the
authority. Thus, seeing from any angle, respondent No.3 is the owner of
the property and the petitioners cannot be stated to be having any
ownership rights in the property in question and respondent No.3 has
every right to evict the petitioners from the property in question and thus,
the first argument raised by learned counsel for the petitioners is rejected.
9. The second argument raised by learned counsel for the
petitioners to the effect that there was a family settlement between the
parties and thus, respondent No.3 could not evict the petitioners also
deserves to be rejected. It has been fairly stated by learned counsel for the
petitioners that no plea nor any document with respect to any family
settlement was made/annexed in the reply, to the application filed, on
behalf of the petitioners before the authorities. The plea thus raised before
this Court is beyond pleadings before the authorities. Reliance placed
upon two affidavits (Annexure P-12 and P-13) also does not further the
case of the petitioners in any way. Apart from the fact that the said
affidavits, as admitted by learned counsel for the petitioners, were neither
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part of the reply nor part of the record before the authorities below. A
perusal of the affidavit of respondent No.3 (Annexure P-12) would in fact
go against the petitioners, inasmuch as, in the said affidavit, respondent
No.3 has in addition to the fact of his ownership and ownership of his
three brothers has further stated that respondent No.3 had got a shop built
in his share of land and the same was constructed for petitioner No.1. The
said document in fact shows that apart from ownership of the land,
respondent No.3 had also built up the shop. The affidavit (Annexure P-
13) is only a self serving affidavit of petitioner No.1 and has no legal
value and petitioner No.1 cannot be stated to be the owner of the property
in question on the basis of the self serving affidavit. Thus, the plea of
family settlement which is argued before this Court is apparently baseless.
Moreover, as it has been stated herein above that in summary
proceedings, it is the document of title and pleadings which is to be
considered by the authorities, more so, when there is no adjudication by
any Court of competent jurisdiction i.e. civil Court on the aspect that the
petitioners have any right in the property in question.
10. The third argument of learned counsel for the petitioners to
the effect that the petition for eviction is not maintainable in view of the
law laid down by the Co-ordinate Bench of this Court in Simrat
Randhawa (supra) also deserves to be rejected.
The Hon'ble Supreme Court in case titled as "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 has the authority to pass an order of
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eviction, if it is necessary and expedient to ensure the maintenance and
protection of the senior citizen or parent and that , the 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 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."
11. This Court in CWP-15170-2023 titled as "Ravi Kumar Vs.
Deputy Commissioner-cum-Appellate Tribunal, Jhajjar and others,
decided on 20.07.2023, after taking into consideration the judgment of
the Hon'ble Supreme Court in Smt. S. Vatnitha's case (supra) had
upheld an order of eviction passed therein by the authorities under Act of
2007. The relevant portion of the said judgment is as under: -
"9. In the said judgment, the Hon'ble Supreme Court had
taken into consideration the legislative scheme of the 2007 Act &
reference was also made to Chapter V of the 2007 Act which provide
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for "protection of life and property of senior citizens". The objects of
the Act which included a need to give more attention to the care &
protection of older persons was also taken into consideration. It was
observed that the procedure to be followed by the Tribunal was of a
summary nature. The contesting claim for both the parties to the effect
as to whether the authorities under the Act have the jurisdiction to
entertain the proceedings for eviction was also noticed. Relevant part
of Paragraph No.6; Paragraphs 15, 16, 17 in their entirety as well as
relevant portion of Paragraphs 19 and 20 of the above judgment are
reproduced as under: -
xxx xxx xxx xxx xxx xxx
6. The appellant specifically raised an objection to the
jurisdiction of the authorities to entertain the proceedings seeking
her eviction from the premises. She submitted that while the Senior
Citizens Act 2007 provides for the maintenance of a senior citizen or
a parent, there is no provision envisaging an order of eviction, and
that the authorities had no jurisdiction to direct her removal from
the premises.
C. Legislative scheme: Senior Citizens Act, 2007
xxx xxx xxx xxx xxx xxx
15 The rival submissions will now be analysed.
16 Our analysis of the rival submissions must begin with
explaining and interpreting the salient feature of the Senior Citizens
Act 2007 which have a bearing on the present controversy.
"Maintenance‟ is defined in an inclusive manner to incorporate,
among other things, provisions for food, clothing, residence, medical
assistance and treatment. In defining the expression "property", the
legislation uses broad terminology encompassing "property of any
kind" and to include "rights or interests in such property".
Overriding effect is given to the provisions of the enactment by Section
3. Besides the definitions which are comprised in Chapter I, Chapter
II is titled "Maintenance of Parents and Senior Citizens" while
Chapter V is titled "Protection of Life and Property of Senior
Citizen".
17. The Statement of Objects and Reasons indicates the
rationale for the enactment of the law:
"Traditional norms and values of the Indian society laid
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stress on providing care for the elderly. However, due to withering of
the joint family system, a large number of elderly are not being
looked after by their family. Consequently, many older persons,
particularly widowed women are now forced to spend their twilight
years all alone and are exposed to emotional neglect and to lack of
physical and financial support. This clearly reveals that ageing has
become a major social challenge and there is a need to give more
attention to the care and protection for the older persons. Though the
parents can claim maintenance under the Code of Criminal
Procedure, 1973, the procedure is both time - consuming as well as
expensive. Hence, there is a need to have simple, inexpensive and
speedy provisions to claim maintenance for parents.
xxx xxx xxx xxx xxx xxx
19. xxx xxx xxx Hence, in the case of
the children of a senior citizen, the obligation to maintain a parent is
not conditional on being in possession of property of the senior citizen
or upon a right of future inheritance.
20. The procedure to be followed by a Maintenance
Tribunal (constituted under Section 7 is of a summary nature as
provided in Section 8(1) and with all the powers of a Civil Court, as
provided in Section 8(2).
xxx xxx xxx xxx xxx xxx xxx"
12. Even appeal bearing LPA-1387-2023 filed against the said
judgment has also been dismissed.
13. Thus, in view of the law laid down by the Hon'ble Supreme
Court, the petition filed for eviction by respondent No.3/senior citizen
and owner of the property is maintainable and the argument of learned
counsel for the petitioners deserves to be rejected.
14. It would also be relevant to note that a Co-ordinate Bench of
this Court in case titled as "Mamta Sharma Vs. Additional Deputy
Commissioner-cum-Maintenance Tribunal and others", reported as
2021(1) R.C.R. (Civil) 287, had observed as under: -
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"48. In view of above position, I am of the opinion that the
Tribunals under the Act have jurisdiction to entertain complaint of a
senior citizen and enforce his rights for protection of life and
"property" against transgression by his children and relatives.
49. Learned counsel for the petitioner has albeit contended
that the Tribunal under the Act has no jurisdiction to protect the
rights of senior citizens over their property, against
transgression/violation by their children and/or relatives. That, to
my mind, would be contrary to, negate and defeat the spirit, object
and intent of the Parliament as expressed in the statement of the
objects and reasons, the preamble and spirit of provisions of the Act.
Protection of the property would of course include right to have
peaceful and exclusion possession and enjoyment of the property in
question, even if it means the ouster of others, subject to statutory
parameters being in favor of the senior citizen.
50. To repeat, in Justice Shanti Sarup Dewan case supra,
Division Bench of this Court held as under:-
"It is not the other way round that respondent No. 7 with his
family keeps staying in the house and asking the appellants to go to
the Civil Court to establish their rights knowing fully well that the
time consuming civil proceedings may not be finished during the life
time of appellant No. 1. In fact, that is the very objective of respondent
No. 7".
51. Similar seems to be the intent of the petitioner herein
knowing fully well that respondent no.2 is an 82 years old man while
she is 53 years and time is on her side.
52. The aforesaid judgment of Division Bench of this
Court was rendered even when there was no comprehensive action
plan framed under the Act by the State Government. Division bench
thus establishes that a senior citizen can not be compelled/forced
against his wishes to keep his son/daughter or any other relative in
his own property, even when there was no comprehensive action
plan framed by the State Government, as envisaged under the Act.
53. Relying on aforesaid Division Bench, subsequently a
Single Bench in Sanjeev Kumar Vs. District Magistrate, U.T.
Chandigarh 10 , too held thus:-
"16. The Division Bench held that the right of exclusive
possession of a self owned property by a registered document of title
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can be enforced under the provisions of the said Act by issuing
appropriate directions in exercise of jurisdiction under Article 226
even though Rules had not been framed."
54. No doubt, in Simrat Randhwa, supra, a Single Bench of
this Court struck down the Clauses 1 to 3 of The Punjab Action Plan,
2014. None the less, the aforesaid relevant provisions in the parent
Act of 2007 and statutory Rules framed thereunder stand unaffected
and are very much in force. The said judgment of the learned Single
Judge Bench, in my respectful opinion, would not take away the
effect of or wash out the earlier subsisting Division Bench judgment
of this Court in Shanti Sarup Dewan case. It has been categorically
held therein, that even in the absence of and de hors any action plan
providing for eviction under the 2007 Act, that all necessary
directions can be made under the Act, to ensure that the parents live
peacefully in their house without being forced to accommodate their
children."
15. LPA-854-2020 against the said judgment has been
withdrawn, vide order dated 01.06.2023.
16. In the present case, it is necessary to uphold the order of
eviction for adequate protection of the senior citizen/respondent No.3. In
the application (Annexure P-1), a specific reference has been made by
respondent No.3 to a complaint having been moved by him to the police
authorities, for the protection of his life and liberty. It was also averred in
para No.8 of the said application that respondent No.3 has ousted the
petitioners from the property in question and the same has been advertised
in a national newspaper i.e. Dainik Jagran on 24.09.2019 and a copy of
the said advertisement had also been annexed. A specific averment has
been made by respondent No.3 in para No.9 of the application that
petitioner No.1 is a car mechanic/technician and is using the residential
premises for commercial purpose creating disturbance in the peaceful
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living of respondent No.3 and other family members. Further, averments
have been made in para 4 of the application to the effect that the
petitioners use foul language and even tried to hit respondent No.3 on
various occasions by different objects and had also given warnings to
respondent No.3 to throw him out from the house in question. A perusal
of page 45 of the paper-book where the arguments raised by counsel for
the petitioners had been noticed by the Tribunal, it has been observed that
the petitioners had argued that a complaint was filed by petitioner No.2
herein against the brother of petitioner No.1 herein to the Police
Commissioner, Gurugram and it is on the said bases, respondent No.3 has
filed the application/complaint. The same also clearly shows that there is
dispute in the family and thus, there are sufficient grounds to show that
eviction of the petitioners is necessary for protecting the life and liberty of
respondent No.3. Since the appeal filed by the petitioners before the
appellate Tribunal has been dismissed vide order dated 26.09.2023 on the
ground that the same was not maintainable, thus, this Court has
considered the challenge of the petitioners to the order dated 04.08.2021
and finds the same is misconceived.
17. Keeping in view the above-said facts and circumstances, the
order dated 04.08.2021 being legal and in accordance with law, deserves
to be upheld and the present writ petition being meritless deserves to be
dismissed and accordingly, the same is dismissed.
( VIKAS BAHL )
November 07, 2023 JUDGE
naresh.k
Whether reasoned/speaking? Yes
Whether reportable? Yes
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