Smt. Nahid Parvej vs District Magistrate Pali And Ors
2023 Latest Caselaw 831 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 6707/2016

Smt. Nahid Parvej, widow of late Shabbir Khan, by caste Musalman, aged about 65 years, resident of behidn Nagarpalika, Khudala, Falna, Tehsil Bali, District Pali.

----Petitioner Versus

1. District Magistrate Pali

2. Sub Divisional Officer, Bali, District Pali.

3. Moin Akhtar S/o Late Shabbir Khan, by caste Musalman, R/o Behind Nagarpalika, Khudala Falna, Tehsil Bali

4. Smt. Najma W/o Shri Moin Akhtar, by caste Musalman, behind Nagarpalika, Khudala, Falna, Tehsil Bali.

                                                                ----Respondent


For Petitioner(s)        :     Mr. Rajesh Shah
For Respondent(s)        :     Mr. Vijay Purohit


           HON'BLE MR. JUSTICE KULDEEP MATHUR
                                    Order
23/01/2023

Being aggrieved and dissatisfied with the order dated

20.10.2015 passed by the Maintenance Tribunal and S.D.O., Bali

(hereinafter referred to as 'Tribunal') and order dated 09.02.2016

passed by the Appellate Tribunal and District Collector, Pali

(hereinafter referred to as 'Appellate Tribunal') whereby the

prayer of the petitioner seeking eviction of respondent Nos.3 and

4 from the property situated behind Nagar Palika, Khudala-Falna,

Tehsil-Bali, District-Pali (hereinafter referred to as 'residential

property') as per the provisions of Maintenance and Welfare of

Parents and Senior Citizens Act, 2007 (for short 'Act of 2007') was

rejected.

Briefly stated facts of the case are that the petitioner filed an

application as per the provisions of the Act of 2007 before Tribunal

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on 21.07.2015 stating inter alia that the petitioner is a senior

citizen, retired from the post of Teacher in the year 2012. The

petitioner married Shabbir Khan on 28.10.1993 who had one son

i.e. respondent No.3 from his previous marriage. Unfortunately,

only after 16 months of the marriage, Shri Shabbir Khan passed

away. In the application, it was further stated that the petitioner

maintained respondent No.3 like her own son. The petitioner after

superannuation from services purchased a house behind Nagar

Palika, Khudala-Falna, Tehsil-Bali, District-Pali from the amount

received against retiral benefits. Thus, the said property is a self-

acquired property of the petitioner. The respondent No.3 married

Smt. Najma i.e. respondent No.4 on 28.12.2014. Soon after the

marriage, there was a drastic change in the behavior of

respondent Nos.3 and 4 who started misbehaving and maltreating

the petitioner. On 04.07.2015, the petitioner was forcibly thrown

out from the residential property and since then, she has been

residing with her brother, Farooq. In the application filed before

Tribunal, it was prayed that respondent Nos.3 and 4 may be

evicted from the residential property and appropriate arrangement

for peaceful possession over the residential property be ordered.

The Maintenance Tribunal and S.D.O., Bali after holding

summary inquiry as contemplated under the Act of 2007, vide

order dated 20.10.2015 concluded that the object of the Act of

2007 is to ensure inexpensive and speedy procedure to settle

claims regarding monthly maintenance for parents and senior

citizens. However, since the petitioner had only sought eviction of

respondent Nos.3 and 4 from residential property situated at

Nagar Palika, Khudala-Falna, Tehsil-Bali, District-Pali, no relief

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could be granted and the petitioner was required to approach civil

court for the aforesaid relief. Against the order dated 20.10.2015,

an appeal under Section 16 of Act of 2007 was preferred before

Appellate Tribunal and District Collector, Pali which came to be

rejected vide order dated 09.02.2016 after examining the records

and providing opportunity of hearing to the parties. The orders

dated 20.10.2015 and 09.02.2016 passed by the Tribunal and

Appellate Tribunal are assailed in the present writ petition.

Learned counsel for the petitioner vehemently submitted that

by rejecting the application filed by the petitioner under the Act of

2007 seeking eviction of respondent Nos.3 and 4 from the

residential property, the courts below have deprived a senior

citizen from enjoying his/her self acquired property, contrary to

the objects sought to be achieved by the Act of 2007. Learned

counsel further submitted that Rule 21 of the Government of

Rajasthan Maintenance of Parents and Senior Citizens Rules, 2010

(for short 'Rules of 2010') clearly provides for an action plan for

protection of life and property of senior citizens through police

authorities/district administration which casts a responsibility upon

them to ensure that no senior citizen is deprived of his/her

property without due process of law. Reliance was placed on

judgments rendered by Hon'ble Gujarat High Court in case of

Jayantram Vallabhdas Meswania vs. Vallabhdas Govindram

Meswania reported in (2013) 0 AIR (Guj) 160, Hon'ble Punjab and

Harayana High Court in cases of Ashok Kumar and others vs.

District Commissioner-cum-District Magistrate and another (C.W.

P. No. 16010 of 2017), Sudershan Kumar vs. State of Haryana

(C.W.P. No. 13505/2021) and this Court in the case of Smt.

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Champa vs. District Magistrate, Sirohi & Ors. (S.B. C.W.

No.8483/2012), decided on 26.04.2018.

Per contra, learned counsel for the respondents submitted

that Act of 2007 and Rules of 2010 do not empower the Tribunal

constituted under the Act of 2007 to issue an order of eviction in

cases where there is a dispute between senior citizen and his

family members or otherwise with regard to possession over

property in dispute. Learned counsel further submitted that no

order of eviction can be issued under provisions of the Act of

2007.

Heard submissions advanced at bar and perused the material

available on record.

A co-ordinate Bench of this Court in the case of Vinod

Sharma vs. Smt. Shanti Devi & Ors. (S.B. C.W.

No.1936/2022), decided on 21.02.2022, while dealing with a

similar controversy, after threadbare examination of the

provisions of Maintenance and Welfare of Parents and Senior

Citizens Act, 2007, held as under:-

"(29) This Court proposes to examine as to whether the order of eviction or any other like order of such nature can be passed within the framework of the laws involved in the instant case.

(30) The facts of the case which are concise and admitted need not detain the Court much.

(31)Before dilating upon the provisions, it would be profitable tore produce them in order to keep them handy:-

"Section 3.- Act to have over-riding effect. The provisions of this Act shall have effect notwithstanding anything inconsistent there with contained in any enactment other than this Act, or in any instrument having effect by virtue of any enactment other than this Act.

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Section 4.- Maintenance of Parents and Senior Citizens

1. A senior citizen including parent who is unable to maintain himself from his own earning or property owned by him, shall be entitled to make an application under section 5 in case of-

i. parent or grand-parent, against one or more of his children not being a minor ii. a childless senior citizen, against such of his relative referred to in clause (g) of section 2

2. The obligation of the children or relative, as the case may be, to maintain a senior citizen extends to the needs of such citizen so that senior citizen may lead a normal life.

3. The obligation of the children to maintain his or her parent extends to the needs of such parent either father or mother or both, as the case may be, so that such parent may lead a normal life.

4. Any person being a relative of a senior citizen and having sufficient means shall maintain such senior citizen provided he is in possession of the property of such senior citizen or he would inherit the property of such senior citizen:

Provided that where more than one relatives are entitled to inherit the property of a senior citizen, the maintenance shall be payable by such relative in the proportion in which they would inherit his property. Section 5.- Application for maintenance

1. An application for maintenance under section 4,may be made-

a. by a senior citizen or a parent, as the case may be; or b. if he is incapable, by any other person or organisation authorised by him; or c. the Tribunal may take cognizance suo motu. Explanation: For the purposes of this section "organisation" means any voluntary association registered under the Societies Registration Act, 1860,or any other law for the time being in force.

2. The Tribunal may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this section, order such children or relative to make a monthly allowance for the interim maintenance of such senior citizen including parent and to pay the same to such senior citizen including parent as the Tribunal may from time to time direct.

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3. On receipt of an application for maintenance under sub-section(I), after giving notice of the application to the children or relative and after giving the parties an opportunity of being heard, hold an inquiry for determining the amount of maintenance.

4. An application filed under sub-section (2) for the monthly allowance for the maintenance and expenses for proceeding shall be disposed of within ninety days from the date of the service of notice of the application to such person:

Provided that the Tribunal may extend the said period, once for a maximum period of thirty days in exceptional circumstances for reasons to be recorded in writing.

5. An application for maintenance under sub- section(I) may be filed against one or more persons: Provided that such children or relative may implead the other person liable to maintain parent in the application for maintenance.

6. Where a maintenance order was made against more than one person, the death of one of them does not affect the liability of others to continue paying maintenance.

7. Any such allowance for the maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or expenses of proceeding, as the case may be.

8. If, children or relative so ordered fail, without sufficient cause to comply with the order, any such Tribunal may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person for the whole, or any part of each month's allowance for the maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made whichever is earlier: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Tribunal to levy such amount within a period of three months from the date on which it became due.

Section 7.- Constitution of Maintenance Tribunal

1. The State Government shall within a period of six months from the date of the commencement of this Act, by notification in the Official Gazette, constitute

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for each Sub-division one or more Tribunals as may be specified in the notification for the purpose of adjudicating and deciding upon the order for maintenance under section 5.

2. The Tribunal shall be presided over by an officer not below the rank of Sub Divisional Officer of a State.

3. Where two or more Tribunals are constituted for any area, the State Government may, by general or special order, regulate the distribution of business among them.

Section 8.- Summary procedure in case of inquiry

1. In holding any inquiry under section 5, the Tribunal may, subject to any rules that may be prescribed by the State Government in this behalf, follow such summary procedure as it deems fit.

2. The Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure,1973.

3. Subject to any rule that may be made in this behalf,the Tribunal may, for the, purpose of adjudicating and deciding upon any claim for maintenance, choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist it in holding the inquiry.

Section 11.-              Enforcement            of   order   of
maintenance

1. A copy of the order of maintenance and including the order regarding expenses of proceedings, as the case may be, shall be given without payment of any fee to the senior citizen or to parent, as the case maybe, in whose favour it is made and such order may been forced by any Tribunal in any place where the person against whom it is made, such Tribunal on being satisfied as to the identity of the parties and the non payment of the allowance, or as the case may be, expenses, due.

2. A maintenance order made under this Act shall have the same force and effect as an order passed under Chapter IX of the Code of Criminal Procedure,1973 and shall be executed in the manner

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prescribed for the execution of such order by that Code.

Section 23.- 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 trespasser or 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 transfer or 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.

Relevant provisions of Rules of 2010

Rule 2.- Definitions.-- (1) In these rules, unless the context otherwise requires,--

(e) "District Magistrate and Collector" means the District Collector/ Magistrate of the District;

(k) "Presiding Officer" means an officer appointed to preside over a Maintenance Tribunal referred to under sub--Section (2) of Section 7, or an Appellate Tribunal under sub-Section (2) of Section 15; Rule 4.- Procedure for filing an application for maintenance, and its registration.--

(1) An application for maintenance under Section 4shall be made in Form 'A', in the manner laid down in clauses (a) and (b) of sub-Section (1) of Section

5. (2) On receipt of an application under sub-rule (1), the Presiding Officer shall cause--

(a) its essential details to be entered in a Register of Maintenance Claim Cases, to be maintained in such form as the State' Government may direct, and

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(b) its acknowledgment in Form 'B' to be given, notwithstanding anything contained in Rule 5, to the applicant or his authorized representative in case of hand delivery, and its dispatch by post in other cases and the acknowledgment shall specify, inter alia, the registration number of the application. (3) Where a Tribunal takes cognizance of a maintenance claim, suo motu, the Presiding Officer shall, after ascertaining facts, get Form 'A' completed as accurately as possible, through the staff of the Tribunal, and shall, as far as possible, get it authenticated by the concerned senior citizen or parent, or any person or organization authorized by him and shall cause the same to be registered in accordance with clause (a) of sub-rule (2) above. Rule 5.- Preliminary Scrutiny of the application.

--

(1) On receipt of an application under sub-Section (1) of Section 5, the Tribunal shall satisfy itself that:

(a) the application is complete; and

(b) the opposite party has, prima facie, an obligation to maintain the applicant in terms of Section 4. (2) In case where the Tribunal finds any lacunae in the application, it may direct the applicant to rectify such lacunae within a reasonable time limit. Rule 20.- Duties and Powers of the District Magistrate.

(1) The District Magistrate shall perform the duties and exercise the powers mentioned in sub-rules (2)and (3) so as to ensure that the provisions of the Act are properly carried out in his district. (2) It shall be the duty of the District Magistrate to,--

(i) ensure that life and property of senior citizens of the district are protected and they are able to live with security and dignity;

(5) In case of a danger to life or property of a senior citizen, it shall be the duty of the District Magistrate or an officer subordinate to him duly authorized to protect the life and property of such senior citizen."

(32) Before delving into various statutory provisions, this Court would go through the Statement of Objects and Reasons of the Act of 2007, so as to gather the legislative intention behind enacting the Act and its provisions.(33)If the text is texture, the context is what gives colour, then interpretation must depend on the text and the context. Neither can be ignored. The interpretation which makes

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the textual interpretation match the contextual is the best interpretation.

[Re.: Reserve Bank of India Vs. Peerless Co. (1987) 1 SCC 424] (34) The Statement of Objects and Reasons reveals that the Act of 2007 was promulgated to give more attention to the care and protection of the older persons. They clearly spell out that though parents can claim maintenance under the Code of Criminal Procedure, 1973, but the same is time consuming and expensive, hence, in order to have a simple, inexpensive and speedy provisions to claim maintenance for parents and senior citizens, the Act has been enacted.

(35) Apart from maintenance, the Act has been brought to ensure welfare and well being of senior citizens while creating provisions for setting up old-age homes and for making the State Government, and District Magistrates and officers subordinate to them responsible for protecting the life and property of the senior citizens. (36) Hon'ble the then Union Cabinet Minister of Social Justice and Empowerment, while tabling the Bill in the Parliament, made the following remarks:-

"I have mentioned right at the beginning that it is very satisfying and it is a matter of great happiness that longevity has increased. We have a very large number of elderly people to bless us. But it is also very disturbing and it poses a great challenge before us that the joint family system is withering away, it is disintegrating. The best place where the elderly should live is their home and not the old-age home. They are being taken care of with great respect within the environment of their homes. But with the fading away of the joint family system, they find themselves neglected, marginalized and abandoned. This is the side reality. This is the reason why we have brought forward this Bill."

(37) In the backdrop of the Statement of Objects and Reasons and the principles noted above, if the Scheme of the Act of 2007 is to be deciphered, this Court strongly feels that the provisions including the provisions under sections 4 and 5 of the Act of 2007 are meant to ensure that the senior citizens or parents be provided with sufficient means to live with dignity. The progenies or persons liable to maintain their parents, can be directed by the Tribunal constituted under the Act of 2007 to pay a sum not exceeding Rs.10,000/- per month to the parents. (38) It is to be noted that sub-section (3) of section 1 provides that the Act shall come into force in a State on such date as the State Government may, by notification in the official gazette, notify. The State of Rajasthan has

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issued a notification dated31.07.2008 published in official Gazette on 01.08.2008 vide which 1st August 2008 has been appointed as the date of applicability of the provision of the Act of 2007.

(39) The stand-alone provision that deals with the immovable property of the senior citizens is, section 23, which too is applicable in cases where any senior citizen has transferred byway of gift or otherwise a property subject to the condition that transferee shall provide basic amenities to meet their basic and physical needs to the transferor and in case such transferee neglects to provide such amenities, the transferred property shall be deemed to be fraudulent or under coercion and at the option of the transferee, it can be declared void by the Tribunal. (40) Section 23 of the Act of 2007 can, therefore, be invoked only in three contingencies:

(i) the transfer by way of gift or otherwise has been made after the commencement of this Act.

(ii) The transfer of property by gift or otherwise stipulates a condition that the transferee will provide basic amenities and physical needs of the transferor.

(iii) it is established that the transferee has refused or failed to provide such amenities and physical needs.

(41) Since none of the ingredients have been pleaded or are otherwise present in the case in hands, the applicability of the provisions of section 23 is out of question. That apart, in view of the specific stand taken by Mr. Chanda that the Tribunal has not exercised its power under section 23 of the Act of 2007, this Court is of the firm view that section 23 is not required to be gone into. Hence, the pendency of Larger Bench reference should not detain this Court from ferreting out an answer by itself.

(42) An appraisal of the Act of 2007 shows that Chapter II of the Act of 2007 deals with maintenance of parents and senior citizens. Section 4 of the Act of 2007 is the substantive provision like a charging section of a statute. It confers a right upon a senior citizen including parent to claim maintenance while simultaneously casting a duty or obligation upon children to maintain their parents. Whereas section 5 of the Act of 2007 is the machinery provision which prescribes the manner and authority who shall pass the order of maintenance. Other provisions, namely, sections 6 to 18 are ancillary provisions regarding procedure; nature of inquiry; order; alteration in order; enforcement of the order; manner of depositing the amount; interest; right of appeal and appellate tribunal etc.

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(43) Chapter III and IV provide for state's duty to establish old-age homes and medical support for the senior citizens. Chapter V speaks of protection of life and property of senior citizens. Section 21 embodied in the said Chapter enjoins upon the State Government to give wide publicity to the provisions and create awareness, whereas section 22 empowers the State Government to confer such powers and impose such duties on a District Magistrate to ensure that the provisions of the Act of 2007 are carried out properly. Section 23 given under this Chapter clothes the Tribunal with the power to declare a transfer to be void in the circumstances given thereunder. (44) A reading of sections 4 and 5 of the Act of 2007, unravels that the Tribunal constituted under the Act can only pass an order of maintenance in favour of senior citizens or parents. Neither is there any direct or indirect reference of eviction nor do these provisions contemplate any such order to be passed by the Tribunal. (45) Moving on to the Rules of 2010, it is to be noted that Rule 20 falling under Chapter V of the Rules of 2010 under the head "Duties and Powers of the District Magistrate", provides that it shall be the duty of the District Magistrate to ensure that life and property of senior citizens of the district are protected and they are able to live with security and dignity [See Rule 20(2)(i)]. Similarly, sub- rule (5) provides that in case of danger to life or property of a senior citizen, it shall be the duty of the District Magistrate or a duly authorized officer subordinate to him to protect the life and property of such senior citizen. (46)The first question which naturally comes to one's mind is, whether an order of ejection can at all be passed while taking recourse to sub-rule (2) or (5) of Rule 20 of the Rules of 2010? The answer to this question, according to this Court, is a firm 'No'- it cannot be done. The reasons are not far to seek, which are set out hereinfra. (47) Chapter V encapsulates duties and powers of the District Magistrate. If sub-rule (2) of Rule 20 of the Rules of 2010 is carefully read, it reveals that it shall be the duty of the District Magistrate to ensure that life and property of senior citizens of the district are protected and they are able to live with security and dignity. It is pertinent that the duty prescribed under sub-rule (2) is only to ensure that life and property of the senior citizens are protected. The same cannot be stretched to such an extent that it translates into a power to scoop out the children who have been living in shared accommodation out of natural bonding which at some point of time existed.

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(48) Rule 20, if read in its entirety with its innate intention, gives a clear indication that being a piece of welfare legislation, it adjures the administration (District Magistrate) to avert threat of life and property of the senior citizens, should any such eventuality arise. (49) Sub-rule (5) is also to the same effect and casts an obligation upon the District Magistrates. Close and conjoint reading of sub-rules (2) and (5) suggests that the District Magistrate should ensure that the property is properly maintained and for want of financial resources, the property should not deplete or deteriorate so as to threaten the life and property of the senior citizens. (50) The duties which have been prescribed for District Magistrate under Chapter V of the Rules of 2010, framed in exercise of powers under section 32 of the Act of 2007, cannot be construed to be conveying a power, which the Parent Act, namely the Act of 2007 does not even envision much less permit.

(51) A bare look at Rule 20 of the Rules of 2010 lays bare that the duties and powers enshrined under Rule 20, are available with the "District Magistrate (52) Hence, even by over-stretching the scope of Rule 20, if power of eviction is read into the Rules of 2010, this Court is of the firm view that the power of passing an order of eviction (if any), can be exercised by the District Magistrate or its subordinate and in no case by the Tribunal. An S.D.O. may be administratively subordinate to the District Magistrate, but while discharging the duties as a persona designata - the Presiding Officer of the Tribunal, he does not act as a subordinate of the District Magistrate in any manner.

(53) Though no reference to Rule 20 of the Rules of 2010 has been made by the Tribunal, if argument of Mr. Chanda were to be accepted, then also, the authority to pass such an order does not vest in the Tribunal, as Rule 20 categorically uses expression 'District Magistrate'. The Tribunal has thus usurped the purported powers under Rule 20, which are otherwise not meant for or available to it. The order of eviction is, therefore, fundamentally void and without jurisdiction.

(54) There is yet another angle from which the issue whether power of eviction can be read in Rule 20(2) and (5) of the Rules of 2010 can be examined. It is pertinent that section 32 of the Act of2007 empowers the State Government to frame rules for carrying out purpose of the Act. Sub-section (2) draws the precincts within which the State Government can frame the Rules. It will not be out of place to reproduce Section 32 hereunder:-

"32. Power of State Government to make rules

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1. The State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

2. Without prejudice to the generality of the foregoing power, such rules may provide for - a. the manner of holding inquiry under section 5 subject to such rules as may be prescribed under sub-section (1) of section 8;

b. the power and procedure of the Tribunal for other purposes under subsection (2) of section 8. c. the maximum maintenance allowance which may be ordered by the Tribunal under sub-section (2) of section 9;

d. the scheme for management of old age homes, including the standards and various types of services to be provided by them which are necessary for medical care and means of entertainment to the inhabitants of such homes under sub-section {2) of section 19;

e. the powers and duties of the authorities for implementing the provisions of this Act. under sub- section (1) of section 22;

f. a comprehensive action plan for providing protection of life and property of senior citizens under sub-section (2) of section 22; g. any other matter which is to be, or may be, prescribed

3. Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of State Legislature, where it consists of two Houses or where such legislature consists of one House, before that House."

(55) So far as the powers of the Tribunal are concerned, section 32(2)(a) empowers the State Government to prescribe manner of holding inquiry under section 5 of the Act of 2007 and sub-section(1) of section 8 of the Act of 2007. Clause (b) of section 32 (2) permits the State Government to provide for rules for the power and procedure of the Tribunal for the purpose of sub-section (2) of Section 8 of the Act of 2007.

(56) As against this, clause (d) provides that Rules can be framed for the scheme for management of old age homes including the standards and various types of services to be provided that are necessary for medical care and means of entertainment. Clauses(e) and (f) provide for powers and duties of the authorities for implementing the

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provisions under sub-sections (1) and (2) of section 22 of the Act of 2010.

(57) When a clear and distinct demarcation of State's power to frame Rules has been made, the expanse of Rules of 2010 framed by the State, cannot traverse beyond the scope of sections 8, 9,19 and 22(1) and (2) because, the State is empowered to frame Rules only for the purpose of sections 8, 9, 19 and 22.

(58) This Court is of the view that, sub-rules (2) and (5) of rule 22 cannot be interpreted to include power to pass an order of eviction, because none of these sections (8, 9, 19 and 22) conceive eviction of the children by the Tribunal or even by the District Magistrate.

(59) This being the position, the interpretation sought to be given by Mr. Chanda, if accepted, would be violative of the permissible legislative limits, which the State is bound to honour. The State's power germinates or flows from the fountain head, being section32 of the Act of 2007. It cannot frame a law which the parent Act does not authorize it to frame.

(60) Without prejudice to what has been discussed and held, even as per respondents' own stand petitioner has been living in the subject premises since his birth. The purported transfer within the meaning of section 23 of the Act of 2007 was made prior to the date when the Act of 2007 was made enforceable in Rajasthan(01.08.2008). Therefore, even by virtue of the extended meaning of section 23 of the Act of 2007 the petitioner cannot be called upon to vacate the premises.

(61) More often than not, the authorities discharging their duties or exercising their powers under the Act of 2007, including the Tribunals get moved by the miseries of old- age and vagaries of life faced by the senior citizens and veteran parents. The situation is really grim ― the moral standards of the society including the children are deteriorating with every passing day but then, the Courts are supposed to decide the cases or rights and obligations of the litigants on the touchstone of statutes and constitutional morality and not being solely guided by public or popular morality. The societal expectations and obligations can neither be enforced nor can the same be ordained by the Courts of law unless the law expressly so provides.

(62) In the words of Sh. B.R. Ambedkar, "Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise our people have yet to learn it."

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(63) According to this Court, small patches or gaps in the law can be filled in with a view to give true meaning to the provisions of a statute. But a hiatus or void supposedly left, consciously or sub-consciously, by the framers of law cannot be bolstered or built up by the quasi-judicial authorities or the Tribunals, which are supposed to apply law as it exists or prevails.

(64) To conclude, while observing that the Act of 2007 does not envisage an order of eviction even by the District Magistrate, much less the Tribunal, this Court unhesitatingly holds that order of ouster of the petitioner oppugned in the instant writ petition is de-hors the provisions of the Act of 2007; beyond the scope of Rules of 2010 and also out of the powers of the Tribunal.

(65) The writ petition is, therefore, allowed; impugned order dated 05.01.2022, passed by the Tribunal to the extent of directing the Station Hose Officer, Devnagar Police Station, Jodhpur to take possession of the subject house from the petitioner and respondent No.3 and 4 to hand over the same to respondent No.1 is hereby quashed and set aside. The petitioner shall, however, pay maintenance amount of Rs.5000/- per month to respondent No.1 and 2.

(66) The stay application also stands disposed of accordingly."

In view of aforequoted precedent law, this Court has no

hesitation in coming to the conclusion that the Act of 2007 does

not authorise a Maintenance Tribunal to issue an order of eviction

on an application filed by senior citizen as per the provisions of the

Act of 2007.

Consequently, this Court finds no infirmity in the order dated

20.10.2015 passed by the Maintenance Tribunal and S.D.O., Bali

and order dated 09.02.2016 passed by the Appellate Tribunal and

District Collector, Pali.

In the result, the writ petition stands dismissed.

No order as to costs.

(KULDEEP MATHUR),J

skm/-

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