Anil Kumar vs State Of Uttarakhand & Others
2021 Latest Caselaw 3950 UK

          HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

              Writ Petition (M/S) No. 1795 of 2021
Anil Kumar                                                     ...       Petitioner
                                        Vs.

State of Uttarakhand & Others                                  ... Respondents
Advocates :   Mr. P.P.S. Phartiyal and Mr. Ravi Bisht, Advocates, for the petitioner
              Mr. C.S. Rawat, learned Chief Standing Counsel, for the State
              Mr. Pramod Belwal, learned counsel for respondent No. 2


Hon'ble Sharad Kumar Sharma, J.

The petitioner to the present writ petition has put a challenge to the impugned order dated 24th August 2021, which has been passed by the Sub Divisional Magistrate, Narendra Nagar, district Tehri Garhwal, by virtue of which, while acting on the complaint which has been filed by respondent No. 2, she has proceeded to pass an order thereby directing the petitioner to vacate the premises and to handover the possession of the tenement in question i.e. the Hotel called as "Ganga Ambience Tapovan", Tehsil Narendra Nagar District Tehri Garhwal to respondent No. 2.

2. The petitioner while preferring this writ petition, had contended through his pleadings, that the inter se relationship between the petitioner as a tenant and respondent No. 2, as the landlord, were governed by the specific terms of the rent agreement, which was executed between them though initially for a period of 11 months, but later on, it was subjected to an extension which was made from time to time, and which later on expired with the death of the landlady on 1st July 2020.

3. When the matter was taken up initially on 8th September 2021, this Court, while staying the effect and operation of the

impugned order, had issued notices to the respondent No. 2, as well as the Sub Divisional Magistrate, who had passed the impugned order, directing her to ensure her personal appearance; she has put in her appearance today.

4. While defending her stand qua the impugned order, which was under challenge, the learned Chief Standing Counsel for the State, had raised his arguments from the perspective of Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act of 2007, which is extracted hereunder:-

"23 Transfer of property to be void in certain circumstances. — (1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.

(2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right.

(3) If, any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of section 5.

5. This Court is of the opinion, that Section 23 of the Act, contemplates that where a senior citizen is in possession of any property transferred by way of gift or otherwise, his property is subject to the conditions, that the transferee shall provide basic amenities etc. and senior citizen is incapable to enforce a right which had been guaranteed under sub Section (1) and sub Section (2) of Section 23, may take an action by filing an application under sub Section (1) of Section 5 of the Act.

6. In fact, the nature of complaint, in the instant case which has been instituted before the Sub Divisional Magistrate, by respondent No. 2, does not fall to be satisfying, any of the covenants which had been provided under Section 23 of the Act of 2007, hence the protection, which has been sought to be attracted by the learned Chief Standing Counsel, to defend the Sub Divisional Magistrate, who has passed the impugned order of handing over possession, is not acceptable by this Court.

7. Secondly, he submits that to justify the impugned order, which was passed by the Sub Divisional Magistrate, he has made reference to Section 8 of the Act and particularly, he has emphasised upon sub Section (2) of Section 8 of the Act, where it contemplates that the learned Tribunal, while exercising its powers under the Act of 2007, will have all the trappings of the Civil Court for the purposes of taking evidence on oath and enforcing the attendance of witnesses. But, unfortunately, the learned Chief Standing Counsel for the State has escaped to make reference to sub Section (1) of Section 8 of the Act which altogether expresses a different intention and objective, which was to be achieved, to meet the objective of the Act of 2007.

8. The procedural part contemplated under sub Section (2) of Section 8 of the Act, would only be available to be exercised by the learned Prescribed Authority or the Tribunal, constituted under the Act; while holding an enquiry under Section 5 of the Act. Hence sub Section (2) of Section 8 of the Act, is not an exception to sub Section (1) of Section 8 of the Act. The applicability of the conditions contemplated under sub Section (2), would only be in those circumstances where the ingredients or parameters of any complaint under the Act is falling under Section 5 of the Act, its then only Seciton 8(1) of Act of 2007, is

available for the exercise of powers. If Section 5 of the Act of 2007, is taken into consideration, the three basics facts under which the Tribunal can exercise its powers its when a senior citizen or the parents, as the case may be, he is incapacitated to be helped or taken care of by any other person or organisation authorised by him and the Tribunal may then only take suo moto cognizance for the purposes of entertainment of an application of "maintenance", under Section 4 of the Act. The term "maintenance", has been independently defined under sub Section (b) of Section 2 of the Act, which is extracted hereunder:-

"(b) "maintenance" includes provisions for food, clothing, residence and medical attendance and treatment;

9. The exercise of powers under Section 5 of the Act of 2007, if it is to be read with in accordance with Section 8, then it could only be for the purposes of determining the maintenance, as it has been defined under sub Section (b) of Section 2 of the Act, which includes providing of food, clothing, residence, medical attendance and treatment. But, herein, in the instant case at hand, since it was an initiation of proceeding at the behest of the complaint, which had been submitted by respondent No. 2, in which he has admittedly pleaded, that the petitioner herein, had been inducted as a tenant of the hotel in question by virtue of a rent agreement, which was executed in his favour by the predecessor owner/landlord of the tenement for a specified period from 15th May 2019 to 14th April 2020, determining the admitted rent payable @ of Rs. 44,000/-, that itself entails that if at all any eviction proceedings was to be resorted to against the tenant petitioner, then it was obviously to be covered by the tenancy laws or by way of an institution of civil proceeding, where there is a scrutinisation of an issue of determination of tenancy due to afflux of time or non extension of the rent agreement it cannot be by way of a complaint under Section 5 of

the Act of 2007, which has altogether a different social objective to be attained, but not to be procedure to override the adjudication of tenancy rights.

10. In such type of factual disputes, where the tenancy has been created by virtue of a written document which was admittedly executed, I am of the view, that it will not fall to be a dispute under Section 4 to be read with Section 5 of the Act of 2007, in order to attract the enabling provisions contained under Section 8 of the Act, as argued by the learned Chief Standing Counsel for the State.

11. The nature of the order, if it is to be read in consonance with the contents of the complaint, I am of the view that the complaint, if it is read along with Section 5 of the Act of 2007, will not fall within its ambit; and that reasoning is further justified from the perusal of the impugned order itself, because it does not show, that any stage or at any point of time, the Sub- Divisional Magistrate had ever exercised or resorted to procedure as it has been contemplated under Section 6 of the Act of 2007, and hence while exercising its powers under the Act of 2007, while directing the petitioner to vacate the premises and to handover the vacant possession to respondent No. 2, herein, in fact, the Sub-Divisional Magistrate, even if could be said, that she was adorning the power of Tribunal under the Act of 2007, and could have exercised, its suo moto powers, as it has been argued, under the light of the provisions contained under Section 5 though not applicable in the present circumstances of the case it could not have been passed, by way of the impugned order, determining the rent agreement or the rights or liability, which were flowing from it between the two parties to the agreement, because in that eventuality, under the garb of exercising the

powers of a Tribunal, under the Act of 2007, if it is permitted to be exercised by the Sub Divisional Magistrate under the Act of 2007 (though not reflected from the impugned order that she was exercising powers under the said Act), could not be made permissible, otherwise it would be an absolute preposterous judicial proceedings, which has been sought to be attracted and applied by herself to bring it within the jurisdiction of the Tribunal under the Act of 2007, for evicting the tenant from the tenement in question, where the relationship of which inter se is governed by the rent agreement, which could only be a subject matter of scrutiny by the Civil Court and not by way of a summary proceedings, which is provided under the Act of 2007.

12. In this case, if the impugned order is taken into consideration, in fact, apart from the fact, that the complaint does not fall to be in consonance to and within the ambit of Section 4 of the Act of 2007, the sole foundation of it and under the pretext of which an action has been taken is based upon the report, which the Sub Divisional Magistrate had solicited from the SHO concerned, which was submitted before her on 15th September 2019, and thereafter on 14th April 2020, which has been taken as to be the basis and the prime reasoning for passing the impugned order.

13. I am of the view that, such an order, which had been passed by the Sub Divisional Magistrate, under the garb of the alleged exercise of powers under the Act of 2007, since it doesn't fall to be within the ambit of the Act itself, it could not have been exercised by the Sub Divisional Magistrate, on an executive side in the absence of adjudicatory rights vested under law for determining the rent agreement and landlord tenant relationship and passing a consequential order of eviction.

14. Hence, the impugned order is quashed; the writ petition is allowed. But, this Court would not be hesitant to observe that the learned counsel for respondent No. 2, who had put in appearance, had made reference to a judgement, which was rendered by this Court in a writ petition being Writ Petition (M/S) No. 3511 of 2019, Pooja Sharma Vs. SDM Prescribed Authority and another. In the said judgement, which was rendered by this Court vide its judgment of 14th December 2020, was exclusively a proceedings, which was drawn under Section 5 of the Act of 2007, wherein an inter se relationship between the daughter-in- law and father-in-law, were the subject matter of consideration and where the daughter-in-law intended to deprive the father-in- law a senior citizen to occupy his own premises, which was under his title. In fact, the factual circumstance in the said case was entirely different and distinct and it was exclusively a proceedings which were held and conducted under Section 5 of the Act of 2007. Since the present case factually doesn't fall to be within the ambit of the said case and the ratio propounded therein in the said judgement, in fact, it cannot not be ruled out, that the reference /reliance made to the said judgement by respondent No. 2, was in order to divert the issue and to protect the respondent No. 1, as well as the order passed by her, by bringing it to be within the ambit of exercise of powers under the Act of 2007, which is uncalled from a professional, to place reliance on a judgement, which is not even principally applicable in the instant case since being factually and judicially distinct to the case at hand.

15. In that view of the matter, the impugned order is quashed; the writ petition is allowed. However, it would be without prejudice to the rights of respondent No. 2, to resort to any other

regular civil proceedings which may be available to him in accordance with law, for the determination of the tenancy rights, inter se between the petitioner and respondent No. 2 herein.

(Sharad Kumar Sharma, J.) 30.09.2021 Mahinder/