Uttarakhand High Court
Unknown vs It Transpires That Petitioner No. ... on 1 August, 2022
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WPMS No. 2341 of 2021
Hon'ble Manoj Kumar Tiwari, J.
Mr. Sanjay Kumar, Advocate for the
petitioners.
Mr. Kurban Ali, Advocate for the
respondent.
Heard learned counsel for the parties.
By means of this writ petition,
petitioners have sought the following relief:-
(i)Issue a writ, order or direction in the nature of
certiorari quashing the impugned order dated
02.09.2021 (contained as Annexure no. 10 to
this writ petition) passed by the Learned
Maintenance to Parents & Senior Citizen
Tribunal / Sub-Divisional Magistrate Kashipur,
District Udham Singh Nagar on Misc. Case No.
01 of 2021 'Smt. Kiran Devi V/s Smt Jamuna
Devi' whereby the review application to review
the Judgment dated 20.11.2019 passed in suit
no. 13 of 2019 'Smt. Jamuna Devi V/s Smt
Kiran Devi' has illegally been allowed.
It transpires that petitioner No. 1 filed
an application under Section 23 of
Maintenance and Welfare of Parents and
Senior Citizens Act, 2007 (hereinafter
referred to as "Act of 2007") for cancellation
of a gift deed dated 05.03.2012 executed by
her in favour of her daughter (respondent
herein), which was registered as Case No.
13 of 2019. After hearing the parties, said
application was allowed by Maintenance
Tribunal/Sub-Divisional Magistrate Kashipur,
District Udham Singh Nagar vide judgment
dated 20.11.2019 and the gift deed,
executed in favour of respondent, was
declared as void. Respondent filed an
application seeking review of the judgment
dated 20.11.2019 before Maintenance
Tribunal/Sub-Divisional Magistrate,
Kashipur, which was allowed vide order
dated 02.09.2021 and the judgment passed
earlier was recalled.
Feeling aggrieved by the order passed
on review application of the respondent,
petitioners have approached this Court.
It is contended by learned counsel for
the petitioners that in the absence of any
power of review conferred by the Act of
2007, learned Maintenance Tribunal could
not have reviewed its order. It is further
contended that since the lis was decided
vide judgment dated 20.11.2019 and the
gift deed was declared void, therefore,
Maintenance Tribunal erred in reviewing its
judgment, which was rendered on merits,
after hearing the parties.
This Court finds substance in the
submission made by learned counsel for the
petitioners.
"Maintenance Tribunal" is constituted
under Section 7 of Act of 2007. From the
Scheme of the Act, it is apparent that the
Maintenance Tribunal has to decide claim for
maintenance made by a senior citizen or
parent and it can also declare transfer of
property, made by a senior citizen, to be
void under certain circumstances. Since
Maintenance Tribunal has to perform
adjudicatory functions, therefore, it can
safely be inferred that it is a quasi-judicial
authority.
The jurisdiction of Maintenance
Tribunal and the procedure to be followed
by it, is given in Section 6 of Act of 2007.
However, power of review is not conferred
upon the Maintenance Tribunal under any
provision of the Act.
It is well settled that a judicial or
quasi-judicial authority cannot review its
order unless power of review is expressly
conferred upon it. It is equally well settled
that review is creature of statute and there
is no inherent right of review available to a
Court or quasi-judicial authority. This
aspect has been dealt with by Hon'ble
Supreme Court in the case of Indian
National Congress (I) Vs. Institute of Social
Welfare and others, reported in (2002) 5
SCC 685. Relevant extract of the judgment
is extracted below:-
"41. To sum up, what we have held in the
foregoing paragraph are as under:
1. That there being no express provision in the
Act or in the Symbol Order to cancel the
registration of a political party, and as such no
proceeding for de-registration can be taken by
the Election Commission against a political party
for having violated the terms of Section 29A(5)
of the Act on the complaint of the respondent.
2. The Election Commission while exercising its
power to register a political party under Section
29A of the Act, acts quasi-judicially and decision
rendered by it is a quasi-judicial order and once
a political party is registered, no power of
review having conferred on the Election
Commission, it has no power to review the order
registering a political party for having violated
the provisions of the Constitution or for having
committed breach of undertaking given to the
Election Commission at the time of registration.
3. However, there are exceptions to the
principle stated in paragraph 2 above where the
Election Commission is not deprived of its power
to cancel the registration. The exceptions are
these - (a) where a political party has obtained
registration by practising fraud or forgery; (b)
where a registered political party amends its
nomenclature of association, rules and
regulations abrogating therein conforming to the
provisions of Section 29A(5) of the Act or
intimating the Election Commission that it has
ceased to have faith and allegiance to the
Constitution of India or to the principles of
socialism, secularism and democracy or it would
not uphold the sovereignty, unity and integrity
of India so as to comply the provisions of
Section 29A(5) of the Act; and (c) any like
ground where no enquiry is called for on the
part of the Commission.
4. The provisions of Section 21 of the General
Clauses Act cannot be extended to the quasi-
judicial authority. Since the Election Commission
while exercising its power under Section 29A of
the Act acts quasi-judicially, the provisions of
Section 21 of the General Clauses Act has no
application."
Learned counsel for the respondent
fairly submitted that the Act of 2007 is
silent as regards "review". However, he
relied upon Section 8(2) of said Act, where
it is provided that Maintenance Tribunal
shall have the power of a Civil Court for the
purpose of taking evidence on oath and of
enforcing the attendance of witnesses.
Merely because certain powers available to
Civil Court have been conferred upon the
Maintenance Tribunal will not entitle it to
invoke power of review available to Civil
Court under Code of Civil Procedure. In the
absence of any provision expressly
empowering the Maintenance Tribunal to
review its order, power of review cannot be
exercised by it.
In such view of the matter, the
impugned order dated 02.09.2021 passed
by Maintenance Tribunal/Sub-Divisional
Magistrate, Kashipur in Miscellaneous Case
No. 01 of 2021 is liable to be set aside.
Accordingly, writ petition is allowed.
Impugned order dated 02.09.2021 is
quashed and set aside. However, this order
will not preclude the respondent from
having recourse to such remedy as is
available to her, in law.
(Manoj Kumar Tiwari, J.)
01.08.2022
Arpan
