Punjab-Haryana High Court
Krishna Devi vs Sdm Cum Maintenance Tribunal , Sas Nagar ... on 4 April, 2024
Author: Vikas Bahl
Bench: Vikas Bahl
Neutral Citation No:=2024:PHHC:045223
CWP-7593-2024 [1] 2024:PHHC:045223
110
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-7593-2024
Date of decision: 04.04.2024
Krishana Devi
...Petitioner
Versus
Sub Divisional Magistrate-cum-Maintenance Tribunal and others
...Respondents
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
Present: Ms. Ridhi Bansal, Advocate and
Ms. Sidhi Bansal, Advocate for the petitioner.
Mr. TPS Walia, AAG, Punjab.
****
VIKAS BAHL, J. (ORAL)
1. This is a Civil Writ Petition filed under Article 226/227 of the
Constitution of India for the issuance of a writ in the nature of certiorari for
quashing the instructions dated 17.02.2023 (Annexure P-1) issued by
respondent No.2 and with further issuance of directions to respondent No.1-
Sub Divisional Magistrate-cum-Maintenance Tribunal to decide the
application filed by the petitioner under Section 22 of the Maintenance and
Welfare of Parents and Senior Citizens Act, 2007 (hereinafter to be referred
as "the 2007 Act").
2. Learned State Counsel has submitted that the Instructions dated
17.02.2023 have been superseded by Instructions No.37848 dated
18.12.2023, relevant portion of the same is reproduced hereinbelow:-
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"Department of Social Security and Women & Child
Development, Punjab, Chandigarh, SCO No. 102-103,
Sector34A, 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.
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
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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
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
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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
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
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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
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
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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
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).
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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"
3. Learned State Counsel has further pointed out that as per the
said instructions, the SDM-cum-Maintenance Tribunal has the power to pass
an eviction order in view of the provisions of Section 23 of the 2007 Act and
also in view of the law laid down by the Hon'ble Supreme Court in the case
Smt. S Vanitha Vs. The Deputy Commissioner Bengaluru Urban District
& Ors., reported as 2021(15) SCC 730. It is submitted that in the present
case, apparently, confusion could have been there on account of the fact that
although the application filed by the petitioner was before the correct
authority i.e., the SDM-cum-Maintenance Tribunal but in the application,
the provision of Section 22 of the 2007 Act has been mentioned and the
provision of Section 23 of the 2007 Act has not been mentioned.
4. Learned counsel for the petitioner has submitted that in view of
the same, the petitioner be permitted to file a fresh application before the
SDM-cum-Maintenance Tribunal under the 2007 Act by incorporating the
provision of Section 23 of the 2007 Act in the said application and has
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further prayed that on the petitioner doing so, respondent No.1 be directed to
decide the said application, as expeditiously as possible.
5. Learned State Counsel has submitted that in case, the said
application is filed in accordance with the instructions dated 18.12.2023,
respondent No.1 would consider the same, in accordance with law, and
decide the same on merits, as expeditiously as possible.
6. Keeping in view the abovesaid facts and circumstances, the
present Civil Writ Petition is disposed of with the following observations:-
(i) It would be open to the petitioner to file an application in
accordance with the instructions dated 18.12.2023 before the
Maintenance Tribunal.
(ii) The Maintenance Tribunal would decide the said application on
merits after hearing all the parties concerned and would also
take into consideration the instructions dated 18.12.2023 in
deciding the said case.
(iii) The said application would be considered and decided, as
expeditiously as possible.
7. This Court has not opined on the merits of the case and
respondent No.1 would consider the said application after hearing all the
parties concerned, in accordance with law.
8. All the pending miscellaneous applications, if any, shall stand
disposed of in view of the abovesaid order.
04.04.2024 (VIKAS BAHL)
Pawan JUDGE
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
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