Punjab-Haryana High Court
Sheela Devi vs District Collector Cum Presiding ... on 29 November, 2023
Author: Vikas Bahl
Bench: Vikas Bahl
Neutral Citation No:=2023:PHHC:151614
CWP-26035-2023 -1- 2023:PHHC:151614
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(101)
CWP-26035-2023
Date of decision: - 29.11.2023
Sheela Devi
....Petitioner
Versus
District Collector cum Presiding Officer under Maintenance
Tribunal, Gurugram and others
.....Respondents
CORAM : HON'BLE MR. JUSTICE VIKAS BAHL
Present:- Mr. Parmod K. Parmar, Advocate
for Mr. Ashish Yadav, Advocate, for the petitioner.
Ms. Rajni Gupta, Additional Advocate General, Haryana.
****
VIKAS BAHL, J. (ORAL)
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
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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 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
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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."
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.
(VIKAS BAHL)
JUDGE
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
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taken on record and has been marked as 'Mark A'. The relevant portion of
the said letter is reproduced 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 & Empowerment
Department was a nodal department to implement the provisions of
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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 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
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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 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
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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 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,
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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 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
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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.
( VIKAS BAHL )
November 29, 2023 JUDGE
naresh.k
Whether reasoned/speaking? Yes/No
Whether reportable? Yes/No
Neutral Citation No:=2023:PHHC:151614
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