—
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.907 of 2023
In
Civil Writ Jurisdiction Case No.7851 of 2022
1. Ravi Shankar S/o- Rajeshwar Prasad Roy R/o- G626 Preeti Rest House
Rajendra Nagar overbridge, Permanent address 122, Rental Flat
Kankarbagh, P.S. Kankarbagh.Dist.-Patna.
2. Minu Kumari W/o-Ravi Shankar Resident of G626 Preeti Rest House
Rajendra Nagar over Bridge, Permanent address 122, Rental Flat
Kankarbagh, P.S. Kankarbagh, Dist.-Patna.
… … Appellant/s
Versus
1. The State of Bihar.
2. The District Magistrate, Patna.
3. The Chairman cum Sub Divisional Officer, Patna Sadar.
4. The Senior Superintendent of Police, Patna.
5. The Deputy Superintendent of Police, Patna.
6. The Officer Incharge, Kankarbagh Police Station, Patna.
7. The Officer Incharge, Rajendra Nagar Police Station, Patna.
8. Rajeswar Prasad Roy Son of Sookhil Rai Resident of 122 Rental Flat,
Kankarbagh, P.S. – Kankarbagh. Dist.-Patna.
… … Respondent/s
Appearance :
For the Appellant/s : Mr. Syed Alamdar Hussain, Advocate
Ms. Surya Nilambari, Advocate
For the State : Mr. P.K. Verma, AAG-3
Mr. Sanjay Kumar Ghosarvey, AC to AAG-3
For the Respondent no.8 : Mr. Bindhyachal Singh, Sr. Advocate
Ms. Smriti Singh, Advocate
Mr. Vipin Kr. Singh, Advocate
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
CAV JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 03-01-2024
Law and morality regulate and control human
behaviour in society. Though complementary, when morality is
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infused into legislation, the legislatures have to caution
themselves from overstepping the legal premise and the Courts
have the daunting task of avoiding a judicial overreach hinged
only on popular notions of right and wrong. That parents have to
be looked after by children require no legislative imprimatur but
in deciding property rights, we should be conscious of the
interplay of such rights regulated by various statutes.
2. The order impugned in the appeal is one affirming
the order issued by the Tribunal under the Maintenance and
Welfare of Parents and Senior Citizens Act, 2007 (hereinafter
referred to as the Senior Citizens Act). The 8th respondent, who
was the father of the first appellant was before the Tribunal
seeking eviction of the 1st appellant his wife-the 2nd appellant,
who were residing in the rest house owned by the 8 th
respondent; the rent received from which is asserted to be the
only income of the 8th respondent.
3. The petitioners in the writ petition, appellants herein,
claimed that the prayers made by the 8th respondent, the
applicant under the Senior Citizens Act, could not have been
made since there was total lack of jurisdiction conferred on the
Tribunal under that Act to evict the son and his family who were
residing in the rest house; a permissive occupation or even if it
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is alleged to be a trespass. It was argued by the appellants that
problems arose within the family due to the marriage of the
appellants, solemnized on 14.06.2018, which was not to the
liking of the 1st appellant’s parents. The appellants also
contended that there was no prayer for maintenance made by the
8th respondent, who had sufficient means to look after himself.
The residence of the appellants and their daughter in the three
rooms in the rest house does not in any manner prejudice the 8 th
respondent. The 8th respondent is deprived only of the rent of the
said rooms and he continues to collect the rent from the other 20
residential rooms and 21 shop rooms situated in the very same
building. The appellants also have a case that the rest house is
one purchased by the father, the 8th respondent, from out of the
funds of the joint Hindu family to which they belonged and
there is a partition suit filed by the 1 st appellant; which makes
him a co-owner entitled to reside in the premises.
4. The 8th respondent on the other hand points out
that the first petitioner is well employed and the second
petitioner is a professional, an Advocate, who can look after
themselves and even rent out an accommodation. The 8th
respondent asserted that he and his wife, in their old age, with
multiple ailments, are forced to live in a rented flat and he earns
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only a meagre pension, thus being wholly dependent on the
income from the rest house. Allegation is raised that both the
appellants are troublemakers and have been harassing their
parents continuously and now, by occupying three rooms in the
rest house, to which they can raise no valid claim. The rest
house at Kankarbagh, Patna is a self-acquired property of the 8 th
respondent allotted by the Bihar State Housing Board, Patna by
a perpetual lease dated 20.07.1992, in favour of the 8th
respondent. The 1st appellant requested a room for his sole
residence from the 8th respondent, which was permitted, after
which he moved in along with his wife and child and captured
the entire rest house. The specific contention also is that they
captured room no. 209 of the rest house and later on broke the
locks of two more rooms and are residing there illegally.
5. The 2nd appellant is alleged to be a constant
troublemaker, even for her family; having lodged criminal
complaints against her own mother. The 2 nd appellant also
lodged criminal complaints against her in-laws and there is also
a complaint lodged against her by the 8 th respondent. The
partition suit said to have been filed by the 1 st appellant is after
the application filed under the Senior Citizens Act, as a
retaliatory measure. The 2nd appellant has also filed a case under
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the Protection of Women from Domestic Violence Act, 2005
(hereinafter referred to as ‘the Domestic Violence Act’). The 8th
respondent and his wife, senior citizens coming within the ambit
of Senior Citizens Act have been deprived of their valuable
property, to recover which they have approached the authority
under the Senior Citizens Act, which is promulgated with a view
to provide a speedy and inexpensive remedy to senior citizens
and to ensure protection of their life and property.
6. Both the parties relied on a number of decisions
and the learned Single Judge passed an elaborate order running
to more than one hundred pages. The learned Single Judge
looked at the preamble of the Senior Citizens Act and the
statement of objects and reasons to find that the enactment was
intended at upholding the traditional norms and values of Indian
society, which emphasizes due care for the elderly especially by
reason of the deteriorating joint family system. The travails of
the aged, converted into a major challenge to the society itself,
is sought to be addressed by the enactment though there are
other enactments enabling maintenance. The provisions of the
Senior Citizens Act and the Bihar Maintenance and Welfare of
Parents and Senior Citizens Rule, 2012, (hereinafter referred to
as the Rules of 2012) were copiously quoted from to emphasize
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the simple speedy and inexpensive mechanism brought in for
the protection of life and property of the senior citizens; which
is also a constitutional guarantee emanating from Article 21,
39(A), 41 and 46 of the Constitution of India.
7. On facts it was noticed that admittedly, the 1 st
appellant was given a room in the rest house on his own request
for a few days. The 1st appellant overstayed his welcome and
brought his family to reside with him, as also trespassed into
two other rooms. It was found that the rest house being one
obtained by a perpetual lease, the said property does not fall
within the scope of a family partition. It was held that if the
argument of the appellant’s, that the Tribunal under the Senior
Citizens Act did not have the power to evict a person is
accepted, then the benefit and protection granted to the senior
citizens cannot be effectively provided especially when there is
constant harassment and mental torture by the children. It was
found from the facts that the 8th respondent, who was 73 years
old was being harassed to ‘bits’ (sic) by the appellants and he
cannot be relegated to the civil court to avail the remedy of a
suit for recovery of possession. The nuisance created by the
appellants had to be removed immediately and the Senior
Citizens Act has an over-riding effect especially by virtue of
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Seciton 3, which precludes the civil court from exercising
jurisdiction in matters which are covered under the Senior
Citizens Act. The 8th respondent has a right to live in peace and
the mere filing of the title suit, in which there is no interim
injunction obtained, would not enable the appellants to interfere
with his peaceful life. The title suit is belatedly filed wherein
imaginary claims are made with bald allegations. Reliance was
also placed on the decision of the Hon’ble Supreme Court in S.
Vanitha vs. Deputy Commissioner, Bengaluru Urban
District Others, reported in (2021) 15 SCC 730, wherein the
Tribunal under the Senior Citizens Act was found to 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; though the facts in the cited decision were found to be
different from the facts of the present case.
8. Various other decisions were also referred to, the
paragraphs from which were profusely extracted, which we
would look at in the course of our findings in the appeal.
Relying on the extensive extracts from S. Vanitha (supra) and
also the decisions of the various High Courts, it was reaffirmed
that the Senior Citizens Act and Rules of 2012 were enacted and
framed to provide simple, speedy and inexpensive mechanism
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for the protection of the life and property of the senior citizens,
from imaginary claims foisted on them and their property, by
persons who have no rights to begin with and raise bogus claims
to harass them in their twilight years. Unless there is shown a
legally enforceable civil right and its denial there cannot be a
cloud found on the right of a senior citizen to his/her property,
thus depriving them of its full enjoyment. The measure of
directing the 8th respondent to file a civil suit for recovery of
possession was found to be frustrating the whole purpose and
object of the Senior Citizens Act. Again, reference was made to
Section 3 of the Senior Citizens Act to find the jurisdiction of
the civil court to be curtailed. It was found that the appellant
have to be moved out of the premises for peaceful enjoyment of
the 8th respondent and even if the appellants choose to pursue
the title suit, it can only be continued to its logical conclusion;
and in the context of no interim protection having been granted
there is no question of any interference to the rights of the 8 th
respondent at this stage. The eviction order issued by the
Tribunal was thus affirmed by the learned Single Judge.
9. Before us learned Counsel Shri Syed Alamdar
Hussain argued for the petitioners and learned Senior Counsel
Shri. Bindhyachal Singh countered, for the 8th respondent. Shri.
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P.K. Verma, learned AAG-3 appeared for the State, to assist us.
10. The learned counsel for the appellants reiterated
the argument raised before the learned Single Judge, as noticed
in the judgment to impugn it as grossly erroneous. It was
asserted that there is no power of eviction conferred on the
Tribunal by the Senior Citizens Act or the Rules framed in the
State of Bihar. The judgments relied on in the impugned
decision, of the High Court of Delhi were in the specific context
of the rules under Section 32 of the Senior Citizens Act
providing for an eviction. In the present case, there is no scope
for any inquiry under Section 5 of the Senior Citizens Act since
the 8th respondent does not claim any maintenance and on the
other hand asserts in the application filed before the Tribunal
that he does not require any maintenance from the first appellant
herein, who is his son. There is also no claim under Section
23(1) since there is no deed of transfer executed by the 8 th
respondent in favor of the 1st appellant, with or without any
condition that the transfer is made on the undertaking of the 1 st
appellant, the son, to look after his parents in old age. There is
also no transfer under Section 23(2) of the Senior Citizens Act,
of any estate from which the 8th respondent is entitled to
maintenance. The 1st appellant was inducted into the rooms in
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the guest house by the 8th respondent himself and is a permissive
occupant. The 1st appellant also has a contention that the estate
was purchased by the 8th respondent using funds of the Hindu
Undivided Family and a title suit is pending on that issue. The
learned Single Judge erred in finding no sustainable claim in the
title suit which had to be agitated in the suit and not in the
summary proceedings before the Tribunal under the Senior
Citizens Act or in a judicial review; which power this Court is
exercising. The 1st appellant being a co-owner is entitled to
occupy the premises of the guest house and he has not deprived
the 8th respondent from the income he obtains as rent from the
other rooms in the guest house; rented out for commercial and
residential purposes. The income obtained by the 8 th respondent
is also subject to any claim of mesne profits the 1 st appellant is
entitled to, in the event of the title suit being decreed in his
favor. However, as of now, since there is no interim order
obtained in the suit, the 1st appellant has not obstructed the
receipt of income by the 8th respondent from the said rooms. The
decisions relied on by the 8th respondent has no application
since the appellants are not staying along with the 8 th respondent
and his wife and there cannot be any complaint of harassment or
physical violence against them. The learned counsel would seek
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for setting aside the order of the Tribunal as affirmed by the
learned Single Judge of this Court.
11. Learned Senior Counsel appearing for the
respondent, on the other hand, would contend that both the title
suit and the application filed under the Domestic Violence Act
are misconceived and intended only to defeat the proceedings
before the Tribunal under the Senior Citizens Act. The
provisions of the Act are specifically read out to impress upon
this Court the purpose and intention of the same. The Act
intends to provide protection to the Senior Citizens and their
property to effectuate which, in the present case an eviction is
expedient. The appellants, the son and daughter-in-law of the 8 th
respondent have been continuously harassing the families on
both sides by filing frivolous criminal cases against all and
sundry. The 1st appellant is well employed and so is the 2 nd
appellant, who is a practicing lawyer. The appellants have
sufficient means to look after themselves and there is no reason
to occupy three rooms of a guest house from which the 8th
respondent derives an income. The 8th respondent is a retired
employee and both himself and his wife are living on a meager
pension of Rs. 4089/- and their lives are sustained only by the
rental income from the guest house. The 8 th respondent and his
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wife are entitled to seek eviction of the appellants from the
guest house which is the only source of income for their
sustenance, under the Senior Citizens Act, which provides a
speedy and expedient remedy insofar as the protection of the life
and property of senior citizens. The 8th respondent and his wife
have a right to live with dignity, which they are deprived of by
their own son and daughter-in-law. Despite the Senior Citizens
Act not containing an express provision enabling the Tribunal to
pass an eviction order, it is argued that this has to be read in, to
be comprised within the jurisdiction conferred on the Tribunal,
by necessary implication, so as to effectuate the provisions of
the Act. The primary object of Sections 22 and 32 of the Senior
Citizens Act read with the Rules of 2012 is the protection of life
and property of senior citizens by the authorized officers, who
are entitled to take every necessary step to ensure protection of
the life and property of senior citizens. The order of the Tribunal
under the Senior Citizens Act is well within the powers of the
Tribunal under the enactment.
12. Both the parties placed before us a number of
judgments and we would hence, first look at the decision of the
Hon’ble Supreme Court and then of the various High Courts
relied on by the opposing parties. S. Vanitha (supra) is a
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decision of the Hon’ble Supreme Court in which the appellant,
the daughter-in-law, was residing in a house originally
purchased by her estranged husband, the 4th respondent, who
later sold it to his father, the 3rd respondent, who gifted it to his
spouse, the 2nd respondent, the mother of the 4th respondent. The
2nd respondent filed a suit seeking a permanent injunction
restraining the appellant from interfering with the possession of
the suit property and while the same was pending, the marriage
of the appellant and the 4th respondent were dissolved, against
which an appeal was filed by the appellant and a separate
proceeding for maintenance was instituted under Section 125 of
the Cr.P.C. It was in this background that the 2 nd and 3rd
respondents invoked the provisions of the Senior Citizens Act
seeking eviction of their daughter-in-law from the suit premises,
an order of maintenance of Rs.15,000/- from the 4 th respondent,
their son, and legal expenses for the proceedings from both the
appellant and the 4th respondent. The 2nd respondent had also
instituted a petition under the Domestic Violence Act claiming
the subject premises as a ‘shared household’.
13. In considering the issue as to whether the Tribunal
constituted under the Senior Citizens Act would be empowered
to evict the daughter-in-law from the house in which she was
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residing, the Hon’ble Supreme Court considered the provisions
of the Senior Citizens Act and the provisions of the Domestic
Violence Act so as to harmonize the same, with a view to avoid
any conflict insofar as the separate proceedings initiated by the
senior citizens and that initiated by their daughters-in-law. It
was found that sub-section (1) of Section 23 deals with a
situation where the transfer of property is with the specific
condition to provide for amenities and needs of a senior citizen.
Sub-section (2) envisages a situation where the senior citizen
has a right to receive maintenance from an estate; which right to
receive maintenance, he/she is deprived of by reason of a
transfer; with notice of such right or if the transfer is gratuitous.
It was held that sub-section (2); the right to maintenance from
an estate, cannot be enforced as against a transferee for
consideration, who does not have a notice of such right. The
transfer spoken of in sub-section (1) was held distinguishable
from that spoken of in sub-section (2) to the extent of the former
referring to a transfer by the senior citizen, while the latter takes
within its ambit not only a transfer by the senior citizen, but also
a transfer by a third party.
14. Looking at sub-section (1), it was held that when a
transfer is made by a senior citizen subject to the condition that
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he/she will be looked after and provided with basic amenities
and physical needs; which the transferor has failed to deliver,
then two consequences follow :- (i) by a fiction the transfer
would be deemed vitiated on grounds of fraud, coercion or
undue influence and (ii) at the option of the transferor the
transfer can be declared void by the Tribunal. Such a deeming
fiction is not incorporated in sub-section (2) and what would
arise from sub-section (2) is the right to receive maintenance
from the transferred estate, which can be enforced against the
transferee, who is put to notice of such right or when the
transfer was gratuitous. It was also held that transfer would
include not only the absolute transfer of property but also the
transfer of right or interest in the property.
15. The Hon’ble Supreme Court in S. Vanitha
(supra) while observing that the Tribunal under the Senior
Citizens Act, may have the authority to order eviction, if it is
necessary and expedient to ensure the maintenance and
protection of senior citizens; held that such eviction can only be
an incidence of the enforcement of right to maintenance
protection which remedy can be only after adverting to the
competing claims in the dispute. It was in this context that the
fact situation in that case was recapitulated; of the daughter-in-
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law being sought to be evicted from a house originally
purchased by her husband in which they had been residing as a
family, which was subsequently transferred in the name of the
husband’s father and later gifted to his mother. The woman’s
right of residence and the safeguard against domestic violence
as provided in the Domestic Violence Act were emphasized, in
which circumstance there was a requirement that the claim of
the subject property constituting a ‘shared household’ having to
be adjudicated under the Domestic Violence Act. We have to
immediately notice and emphasize that the dictum in S.Vanitha
(supra) does not support the remedy or relief of an eviction, in
the case of a claim of maintenance from a transferred estate, in
which contingency the remedy is only to enforce the right of
maintenance as against the transferee.
16. A number of decisions of the various High Courts
have been relied on by the learned Senior Counsel for the 8th
respondent to contend that there is a power implied on the
Tribunal constituted under the Senior Citizens Act to carry out
eviction; which would be in furtherance of the intention of the
statute. The majority of the decisions referred to are of the High
Court of Delhi; in which State we cannot but notice that the
rules framed under the Senior Citizens Act specifically confers
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the power of eviction on the Tribunal; which is absent in the
Rules of 2012 framed in the State of Bihar. We also have to
observe at the outset itself that in the majority of the decisions
placed before us, the complaint of the senior citizens who
approached the Tribunal under the Senior Cititzens Act was real
and imminent physical violence and mental torture perpetrated
on them, by their wards and their in-laws; who were residing in
the very same residential building, from which the eviction was
sought.
17. Insofar as the decisions of the Delhi High Court
are concerned, we refer to the Division Bench decision in
Sunny Paul vs. State of NCT of Delhi; 2018 SCC Online Del
11640 which was either followed or reiterated in the other
decisions. There, the senior citizens were concerned with the
maltreatment and harassment perpetrated on them by their two
sons, who also had criminal antecedents. The harassed parents
also for reason of the criminal antecedents of their children had
disowned and dis-inherited them by way of publication taken
out in a newspaper. The issue considered was as to whether a
claim for eviction is maintainable before the Tribunal under
Section 23 of the Senior Citizens Act; that too on allegations of
forcible ouster of the senior citizens, especially in the absence of
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a claim for maintenance. It was held that there was nothing in
Section 23 which presupposed an application for maintenance as
a prerequisite for seeking relief of declaring a transfer void. The
provision enabled an application at the option of the transferor,
for reason of basic amenities and physical needs having not
been provided to the transferor, which was the intention behind
the transfer and a condition specifically stated. The Division
Bench relied on an amendment made to the rules under the
Senior Citizens Act in the year 2016, which specifically
empowered the Deputy Commissioner/District Magistrate to
consider an application for eviction of a son, daughter or a legal
heir from a self-acquired property, by a senior citizen on account
of his non-maintenance and ill-treatment, which was again
amended in 2017, expanding the nature of the property and
transfer effected; the scope and ambit of which may not be
relevant for consideration in the present case.
18. In Sandeep Gulati vs. Divisional
Commissioner Ors.; 2020 SCC Online DEL 2517, the son
and grandson of the senior citizens were objecting to the order
of eviction passed from a property against which they
unsuccessfully filed for a decree of partition. Reliance was
placed on Smt. Darshna vs. Govt. of NCT of Delhi judgment
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in W.P. (C) No. 6592 of 2018 dated 18.07.2018, wherein
another learned Single Judge held that when there is no right
title and interest in the premises, there cannot be any insistence
on the part of the children that they should be allowed to live
with their parents especially when the very object of the Act was
to allow the senior citizen to live in peace and tranquility. Again
Smt. Darshna (supra) relied on the rules entitling a senior
citizen to seek eviction under the Senior Citizens Act.
19. Aarshya Gulati vs. Govt. of NCT of Delhi
ors.; 2019 SCC Online DEL 8801 was an application filed by
two minor children, the grandchildren represented by their
mother, objecting to an order of remand made by the Divisional
Commissioner in an appeal under the Senior Citizens Act.
Sunny Paul (supra) was relied on to uphold the proceedings
before the Tribunal. Shadab Khairi anr. vs. The State
Ors; 2018 SCC Online DEL 7626 again considered the
question of jurisdiction of the Maintenance Tribunal to order
eviction. The two children who were the appellants were
challenging the order of eviction obtained by their father, the
applicant in a proceeding before the Maintenance Tribunal. The
appellants were occupying different floors of the same building
in which the respondent-father was also living. The respondent
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claimed that despite spending considerable amounts for the
separate residence of his sons, the sons resiled from an
undertaking to pay him a monthly sum of Rs. 20,000/-
collectively towards his maintenance and for the day-to-day
requirements of their mother, who was suffering from a
prolonged illness. Again, Sunny Paul (supra) was relied on and
the rule enabling eviction resulted in the dismissal of the appeal
against the order of the learned Single Judge which affirmed the
order of eviction.
20. Saraswati Devi vs. Ganga Ram Sharma anr.;
2023 SCC Online DEL 2093, was another Division Bench
considering a case in which the widowed daughter-in-law was
ordered to be evicted by the Tribunal under the Senior Citizens
Act on an application made by her parents-in-law. Reliance was
placed on S. Vanitha (supra) and after elaborate consideration
of the objective of the enactment, the order of the Maintenance
Tribunal was upheld. The contention regarding the conflict
between the two enactments that is, the Senior Citizens Act and
the Domestic Violence Act, the latter filed by the daughter-in-
law, was negatived finding that the latter case was filed after the
order of the learned District Magistrate under the Senior
Citizens Act. Immediately it has to be noticed that the Hon’ble
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Supreme Court in S. Vanitha (supra) held that “the fact that
specific proceedings under the PWDV Act 2005 had not been
instituted when the application under the Senior Citizens Act,
2007 was filed, should not lead to a situation where the
enforcement of an order of eviction deprives her from pursuing
her claim of entitlement under the law” (sic). The finding in
Saraswati Devi (supra) by the Delhi High Court, according to
us is in direct conflict with the dictum in S. Vanitha (supra).
Albeit, in Saraswati Devi (supra) the application under the
Domestic Violence Act was filed after the order of eviction
under the Senior Citizens Act; the adjudication insofar as the
claim of ‘shared household’ would be frustrated by an order of
eviction.
21. Namdeo and anr. Vs. State of Maharastra; W.P.
No. 2035 of 2020 was a case of the husband’s parents obtaining
an eviction order under the Senior Citizens Act against their son
and daughter-in-law. The allegation was that the son had taken
illegal and forceful possession of a part of the self-acquired
property of the father and was continuing there in a manner
causing serious threat to the safety and security of the parents.
There were also allegations of physical assault and obstruction
of visitors including the other children. The son, however, raised
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allegations against the father which the learned Judge found is
not expected of a son in the conservative Indian society; to
which observation in a judicial order, we cannot, with due
respect, subscribe to. It was held that in ensuring the peace of
the senior citizen there is no illegality in evicting the children
from the residential house which again was relying on Sunny
Paul (supra) and S. Vanitha (supra).
22. Neeraj Shivkumar Maholay anr. Vs State of
Maharastra a decision of a learned Single Judge of the High
Court of Judicature at Mumbai in CRWP No. 5508 of 2018 and
connected cases again was with respect to eviction of the son
and daughter-in-law from a common household in which they
were residing with the old aged parents. The contention of the
children was also that the eviction sought was not from a self-
acquired property but from an ancestral property. The said
contention was rejected on the ground that the object of the
Senior Citizens Act has to be achieved by all means since it is a
special statute to protect the interest of the senior citizen and
parents to live with peace and dignity. Though, eventually the
property may devolve upon the children through their parents;
the immediate need was to maintain the life, liberty, dignity and
property of the parents.
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23. Anil Kumar Dhiman anr. Vs. The State of
Haryana and Ors. in CRWP No. 1357 of 2019 was the
judgment of a learned Single Judge which commenced with a
quote from Guru Granth Sahib to condemn the callous manner
in which the children treat their aged parents, giving short shrift
to the untold sorrows and miseries suffered by the parents to
rear the very children, who now ignore them and at times
perpetrate torture and harassment on them. Looking at the
Action Plan framed under Section 22 and the elaborate
procedure for eviction, the order passed under the Senior
Citizens Act was upheld resulting in the eviction of the children.
24. We notice that the aforesaid judgment delivered
on 21.09.2021 did not refer to an earlier judgment of the very
same High Court by another learned Single Judge in Simrat
Randhawa vs The State of Punjab And Ors in CWP No.4744
of 2018, wherein again a daughter-in-law was sought to be
evicted by the mother-in-law. The learned Single Judge while
finding the power of eviction to be not available under the
Senior Citizens Act, found the Action Plan to have arbitrarily
introduced the concept of eviction; foreign to the scheme under
the Senior Citizens Act. We extract from the operative portion of
the judgment paragraph nos. (iv) to (viii):-
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(iv) The Action Plan has not been prescribed in the
Rules and to the extent of eviction and thus it is
beyond the powers delegated by Parliament in the
MWPSC Act. The Punjab Action Plan is an
executive order and the District Magistrate does not
possess the power of eviction. The Action Plan is
open to wide abuse of the process of law in the
hands of the executive.
(v) The stand of the Union of India is accepted as
the correct legal position that power of eviction
was not visualized, intended or enacted in the
Parent Act by Parliament nor can be entrusted to
the Maintenance Tribunal.
(vi) The Act did not authorize the State
Government and its officers for executing a
summary procedure for eviction to subvert
substantive rights, disabilities and obligations
under the MWPSC Act and the actionable rights
under the personal civil law, to the peril of the
respondent, where neither maintenance nor neglect
nor transfer of property is involved.
(vii) The Maintenance Tribunal is not an Eviction
Tribunal.
(viii) Eviction can take place only in accordance
with procedure established by law and by reading
in the Act rights to property under Article 300-A of
the Constitution as explained by the Supreme Court
in K.T. Plantation case as a ground of challenge,
that is, the Rule of Law as part of the basic
structure and Separation of Powers albeit there is
no absolute rigidity in the dividing lines of the
three pillars of a democratic republic and the State.
(viii) The MWPSC Act does not provide for relief
of eviction simpliciter, but at best as a
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consequential relief under Section 23 of the Act for
void transfers.
25. We cannot but notice that the decisions placed
before us by the learned counsel for the 8th respondent has
emphasized the intention behind the legislation; as justification
for providing measures, which do not find a place in the
enactment itself or the rules framed thereunder. Based merely on
the Preamble and the Statement of Objects and Reasons; we are
of the view that the Tribunal or this Court cannot provide for
measures which are not part of the prescription under the Rules.
As has been held in S.Vanitha (supra) if the application is under
Section 23(1) then there may be a power under the Senior
Citizens Act to carry out eviction of the transferee; which the
appropriate Government could also prescribe under the Rules.
But otherwise we fully agree with the learned Single Judge in
Simrat Randhawa (supra).
26. Chapter-2 of the Senior Citizens Act refers to
maintenance of parents and citizens and Section 4 provides for
persons, who would be entitled to make an application as also
the persons against whom such applications could be filed. The
application for maintenance itself is to be filed under Section 5,
which can be considered in a summary procedure as is provided
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under Section 8. Section 11 speaks of enforcement of order of
maintenance. Chapter-2 also constitutes a Maintenance
Tribunal as per Section 7 and an Appellate Tribunal as per
Section 15; by Section 9, provides for the order for
maintenance, by Section 10, provides for alteration and by
Section 13 permits deposit of the maintenance amount and the
award of interest as per Section 14.
27. Protection of life and property of senior citizens
comes under Chapter-5. Section 23 as has been found in S.
Vanitha (supra) has two limbs. By sub-section (1), a transfer by
the senior citizen; with a condition of providing basic amenities
and physical needs, being rendered void at the option of the
transferor on such conditions not being satisfied. Sub-section (2)
provides for protection of the right to receive maintenance from
an estate; transferred with notice of such right or gratuitously,
enforceable as against the transferee. While under sub-section
(1) a transfer made by the senior citizen alone can be declared
void, under sub-section (2) a right to maintenance can be
enforced against a transferee, if the senior citizen has a right to
maintenance from that estate; whoever makes the transfer. We
cannot but observe that under Section 23 (1), if a transfer is
declared void, then it would be frustrating the object of the Act
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if a consequent eviction is not made; to which end is the
declaration of law in S. Vanitha (supra). The executive
government has the power to provide for the same in the rules,
in furtherance of the purposes of the Act. The rules as framed in
the State of Bihar does not provide for an order of eviction, if
such a declaration is made by the Tribunal. More pertinent is the
fact that the instant case is not one under Section 23 (1) and it
would not be proper for us to decide whether, even in the
absence of an enabling rule, there could be an order of eviction
based on the lofty and noble motivation with which the statute is
enacted.
28. However, in the context of the transfer of an
estate from which the senior citizen has a right to maintenance,
there is no question of the transfer being declared void or
consequently an eviction from that property, since, what the law
provides is only for enforcement of such right of maintenance
against the transferee; who has obtained the property
gratuitously and even otherwise if such transfer is with notice of
such right of maintenance. We perfectly agree with the cited
decisions of the High Courts that a claim for maintenance is not
a prerequisite for an application under Section 23. Even if the
senior citizen has the wherewithal to look after himself/herself,
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if the transfer has been on the condition of provision of basic
amenities and physical needs; which is not confined to the
financial support the elderly expects from his or her ward, the
denial of such basic amenity and physical needs; which words
are to be construed as per the facts arising in each case, would
result in a violation of the condition, thus rendering the transfer
void as one vitiated by fraud, coercion or undue influence, at the
option of the transferor senior citizen.
29. Sub-section (2) does not in the contingency
contemplated, provide for the transfer to be declared void. We
cannot but repeat that Section 32 empowers the State
Government to make rules by notification in the official gazette
for carrying out the purpose of the Act, which again is
protection of the life and property of senior citizens and also
provision for adequate maintenance. As we noticed, in the State
of NCT of Delhi, the rules provide for an eviction of a
son/daughter or legal heir, the vires of which is not under
challenge before us and we would restrain ourselves from
making any observation on that. In any event that power of
eviction, could be exercised when a transfer is declared void,
but not when the transfer of an estate has frustrated the right to
maintenance from it; in which case the right can only be
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enforced against the transferee. It is very pertinent that the Rules
of 2012 as framed by the State of Bihar does not provide for an
eviction from the property whether it be under Section 23(1) or
under Section 23(2).
30. As has been held by us, the Act does not vitiate
the transfer itself, under Section 23 (2), merely for reason of an
existing right for maintenance from the estate transferred, as
conferred on a senior citizen. Under sub-section (2) of Section
23 only the right for maintenance from the estate can be
enforced as against the transferee.
31. In the present case, there is no claim for
maintenance in the application made before the Tribunal under
the Senior Citizens Act. There is neither a claim for maintenance
nor a claim for declaring void a transfer of property for reason
of non-provision of basic physical needs and amenities; the
furnishing of which was a condition for the transfer. On facts, it
has to be noticed that the 8th respondent is the father who owns
the building in which now the appellants are residing;
specifically in three rooms out of many. The claim of the 8th
respondent is that he has only a meagre pension and he
maintains himself and his wife; both of whom are afflicted with
old age illness and other ailments, with the income received
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from the guest house. Admittedly, there are other rooms in the
guest house which have been rented out and there is no
contention raised that the lessees in the other rooms are not
paying rent to the senior citizen or that the first appellant who is
residing in the property, is forcibly receiving such rent from
others. The 8th respondent has also admitted that he had himself
permitted the residence of the son in one of the rooms and on
such permissive occupation the son has encroached on two other
rooms and also brought his wife and child to stay along with
him. There is no allegation of a real or imminent threat of
physical violence raised against the appellants. However, there
is a claim of frivolous criminal complaints having been filed by
the 2nd appellant against the 8th respondent also under the
Domestic Violence Act.
32. It is in the context of such myriad problems
arising from allegations and counter allegations that we thought
it fit to conduct a mediation. The son wanted to see the father,
which he said was being prohibited by other siblings. We hence
appointed an Advocate Commissioner, in whose presence the
meeting was scheduled, in the hope of the son and father
reuniting. The Advocate Commissioner appointed by us
accompanied the son, when he met the father and she has filed a
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report which does not indicate any rapprochement having been
made at the meeting. The parents were bitter about the conduct
of the appellants when they were residing with them and the
various misdeeds alleged, even after they were allowed to
occupy the guest house. The remorse expressed by the 1 st
appellant, failed to pacify the parents who showed no signs of a
reconcilement, is the report of the Advocate Commissioner. We
again persuaded the learned counsel appearing for both the
parties to mediate on the issue. It was also suggested that the
appellants could be allowed to continue in the guest house in the
three rooms and the 2nd appellant would be persuaded to
withdraw all the criminal complaints filed against the aged
parents-in-law. In the present case, we were also of the prima
facie opinion that there is no question of a ‘shared household’
being claimed by the 2nd respondent in the context of there being
no estrangement between the husband and wife and there is no
claim of joint residence in the guest house prior to the present
occupation. The son cannot set up his wife to claim residence in
the shared household, which belongs to the husband’s parents.
We immediately observe that this is only a prima facie
observation since we are not looking at the proceedings under
the Domestic Violence Act; which eventually will have to be
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dealt with by the Court in which such application is made.
33. A translated copy of the application is produced
before us and we deem it fit to refer to the contentions raised
briefly. The applicant-8th respondent appearing before the
authority under the Senior Citizens Act is living in a rented flat
allotted to him during his service and he is also the owner and
co-ordinator of the Priti Rest House which is the bone of
contention in the present case. The applicant has three children,
all well settled and the eldest one is looking after the parents.
The second son is working at Bangalore and the third is the 1st
appellant. The youngest son is said to have entered into a love
marriage with the 2nd appellant which was grudgingly accepted
by the parents, despite which, the wife by her unruly behaviour
and nature was a cause of constant harassment. It is not clear as
to whether the youngest son and daughter-in-law were ever
living with the parents, but there is an allegation that they
encroached into the house of the applicant and the rest-house
with the intention of forcibly taking possession of both. It is also
stated that since the younger son was living at the house of the
in-laws, the applicant himself had offered to provide rented
residential accommodation for the son’s family to live in,
despite the fact that both the son and his wife were earning
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members. However, even such an offer did not abate the
nuisance created by the youngest son and his wife. It is also
stated that the youngest son complied with the request of the
parents not to live in the house of his in-laws and sought for
residing alone in the rest house for some time before he finds a
separate rented accommodation. The 1st appellant was thus
given one room which led to the various allegations raised in the
application. There is also an allegation of the son and his wife
having created nuisance to the public and lessees of the rest
house.
34. From the allegations raised it is clear that the
son was a permissive occupant though according to the 8 th
respondent it was never intended that he stay in the rest house
with his family and that too, occupy more than one room. The
Advocate Commissioner has spoken about a common residence
with the parents, which as of now is not in existence. The
parents and the son and his family are residing in different
places, the former at a rented accommodation and the latter in
the rest house occupying three rooms; though there is allegation
of harassment and nuisance. The fact that the parents and the
son and his family are not living in one building would not
enable a prayer for eviction. The rest house, which is a separate
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building is where the son resides with his family. However, the
claim of the father is that he is unable to maintain himself with
the meagre pension and that he only has the income generated
from the rest house to sustain himself. The said contention is
raised alongside the assertion in the application that the eldest
son, who is living along with the parents in the rental
accommodation, takes care of his old aged parents and arranges
all medical necessities. It has to be pertinently noticed that the
allegation of income from the rest house being the only
sustenance of the 8th respondent, was one ground which did not
find a place in the application. In fact, the specific contention
was that the father was willing to accommodate the son and his
wife in a rental accommodation to ensure that the son does not
live in the house of his wife, along with his in-laws.
35. In the above circumstances, we cannot find any
ground to enable an eviction by the Tribunal constituted under
the Senior Citizens Act; which we have found can at best be
enforced, only under Section 23(1) of the Act. In fact, the
Hon’ble Supreme Court in S. Vanitha (supra), only observed
that “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
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senior citizen or parent. Eviction in other words would be an
incident of an enforcement of the right to maintenance and
protection. However, this remedy can be granted only after
adverting to the competing claims in the dispute” (sic). In the
cited case, the aforesaid observation was in the context of the
daughter-in-law claiming the building in which she was residing
to be a shared household which sharing is in the context of the
husband and wife sharing the residence, before the death of the
husband. It was to enable continued residence in the said
building, she had taken the proceedings under the Domestic
Violence Act. As has been noticed by us it was also observed in
S. Vanitha (supra) that, the proceedings under the Domestic
Violence Act being later to the application under the Senior
Citizens Act would be of little consequence in claiming the right
of a shared household.
36. In any event, for the present we are not
adverting to the proceedings under the Domestic Violence Act,
which is to be adjudicated by the appropriate Court,
untrammeled by any observation made herein. But it has to be
emphasized that neither is there a claim under Section 23(1) of
the Senior Citizens Act nor is there a claim of maintenance. We
immediately observe that a claim of maintenance would not be a
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requirement insofar as an application under Section 23(1) or
even under Section 23(2). Though there is no maintenance
claimed from the 1st appellant, the younger son of the 8 th
respondent and there being no whisper in the application, about
the income from the rest house being the only sustenance of the
aged parents; it cannot but be noticed that the 8th respondent
had rights over the property in which now the 1 st appellant is
staying with his wife and child in three rooms. There is of
course a title suit filed by the 1st appellant, which again would
have to be considered by the appropriate Court. As of now, since
there is no injunction against the exclusive possession of the 8th
respondent, the 1st appellant cannot claim any right of residence
in the building as a co-owner, just as the father, a senior citizen,
cannot seek eviction from the separate residence of the son in a
building owned by him, under the Senior Citizens Act. The son
also cannot claim a right to residence in a building exclusively
owned by the father, by virtue of their relationship alone.
Hence, though the allegation is of a permissive occupation, the
specific contention of the 8th respondent is that he never
intended a continued occupation by the son and that too in more
than one room with his family. The appellants, the husband and
wife also does not controvert the assertion of both of them being
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engaged in fruitful occupations, capable of sustaining
themselves with their earnings. In the above circumstances, the
son would be liable to pay the rent for the three rooms he
occupies, to his father.
37. We have specifically stated that we do not
speak on the various proceedings pending cases between the
appellants and the 8th respondent before the various courts;
specifically under the Domestic Violence Act and the title suit in
the civil court. The observations made by us in this judgment
about any proceeding, other than that under the Senior Citizens
Act, are prima facie and would not regulate the adjudication of
such other proceedings. In this context, we also set aside every
such observation made by the learned Single Judge about the
sustainability of the title suit and the efficacy of a petition under
the Domestic Violence Act.
38. We are of the opinion that there could be no
eviction ordered under the Senior Citizens Act since the claim is
not under Section 23(1). The claim of the 8 th respondent before
the Tribunal under the Senior Citizens Act, if at all coming
under Section 23(2) of the Act, there can only be an
enforcement of the right of maintenance from the property. An
occupation whether it is permissive or an encroachment would
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have the trappings of a transfer, which would dis-entitle the
owner of the property from the maintenance by way of rental
income generated from the occupied rooms in the rest house.
We make it clear that the appellants, as of now, do not have any
right to claim the income from the other rooms in the rest house,
nor can they obstruct or cause harassment to the other occupants
of the rooms; which, if complained of to the District Magistrate,
Patna or the Jurisdictional Station House Officer, the
appropriate authority shall take proper measures to avert
avoid the same.
39. Insofar as the rental income entitled from the
three rooms occupied by the appellants, we set aside the order of
the Tribunal under the Senior Citizens Act for eviction as also
the decision of the learned Single Judge, and remand the matter
to the District Magistrate, Patna. The District Magistrate, Patna
shall conduct an inquiry as to the reasonable rent that could be
generated from the three rooms occupied by the appellants and
pass an order directing the appellants to pay the same by way of
regular remittances in the account of the 8 th respondent.
We also make it clear that the 8th respondent would be entitled to
approach the civil court for eviction, if so desired, which
proceeding ought be considered in accordance with law; again
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untrammeled by any of our observations; which are confined to
the proceedings under the Senior Citizens Act.
40. The appeal would stand allowed with the above
directions. The parties are left to suffer their costs.
(K. Vinod Chandran, CJ)
Partha Sarthy, J : I agree.
(Partha Sarthy, J)
Aditya Ranjan/-
AFR/NAFR AFR
CAV DATE 03.11.2023.
Uploading Date 03.01.2024.
Transmission Date