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Sunny Paul vs State Of Nct Of Delhi & Ors on 3 October, 2018

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: September 05, 2018
Judgment delivered on: October 03, 2018

+ LPA 205/2017, CM No. 11669/2017

SUNNY PAUL ….. Appellant
Through: Mr. Viresh B. Saharya, Adv. with
Mr. Akshat Agarwal, Adv.

versus

STATE OF NCT OF DELHI ORS ….. Respondents
Through: Mr. Satyakam, ASC (GNCTD) with
Mr. Mohit Kumar Bafna, Adv. for R-1
Ms. Aakanksha Kaul, Adv. for R-2
3

CORAM:
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE V. KAMESWAR RAO
JUDGMENT

V. KAMESWAR RAO, J

1. The challenge in this appeal by the appellant is to the

order dated March 15, 2017 passed by the learned Single Judge in

W.P.(C) No. 10463/2015 whereby the learned Single Judge has

upheld the order dated October 01, 2015 passed by the

Maintenance Tribunal constituted under The Maintenance and

Welfare of Parents Senior Citizens Act, 2007 (for short ‘Act of

2007’) whereby the appellant and his brother were directed to
LPA No. 205/2017 Page 1 of 35
vacate H.No. 19A, Raj Niwas Marg, Civil Lines, Delhi-110054.

Suffice it to state that only one of the petitioners (before the

learned Single Judge) namely Sunny Paul has filed the present

appeal.

2. The facts as noted from the record are that the appellant

and his brother Victor Dass are the two sons of the respondent

Nos.2 and 3 namely Leelawati and William Dass. Respondent

Nos. 2 and 3 had filed a petition under the Act of 2007 alleging

that both of them have been physically assaulted, maltreated and

harassed by their sons. It is their case that the appellant is an

alcoholic, whose services have been terminated by the Delhi

Police on the ground of misconduct and who had been convicted

in a fraud case and against whom number of police complaints

are pending in different police stations. It is further averred that

they have already disowned and disinherited the appellant and his

brother by way of publication in newspaper. It is noted, the

Tribunal had issued the following directions: –

1. That the respondents (a) Sunny Paul (b) Victor
Dass along with their respective family members
shall vacate the entire rooms, store, toilets, open
space of House No.19A, Raj Niwas Marg, Civil
Lines, Delhi-54 to the extent that is under their
unauthorised and illegal occupation within 10 days
of the receipt of the order.

LPA No. 205/2017 Page 2 of 35

2. That all household goods, LCD, Almirah, Clothes
etc. belonging to petitioners shall be handed over
back by the respondents to the petitioners.

3. That the S.H.O., P.S. Civil Lines is directed to
ensure enforcement/compliance of the directions (1)
(2) mentioned above, and also ensure that life and
property of the petitioners is secured and no
harassment is caused to them by the respondents
and their family. Beat Staff be deputed for regular
visits to the Senior Citizen petitioners, in order to
safeguard the life and property of the Senior Citizen
petitioners. Compliance report be sent to the
tribunal within 15 days of the order.

3. It may be stated here that it is a conceded case of the

appellant, as noted from the order of the learned Single Judge,

that the Baptist Church Trust Association (for short ‘BCTA’) is

the absolute owner of the property being H.No. 19A, Raj Niwas

Marg, Civil Lines, Delhi-54. The property was allotted by BCTA

to one Andrew Jacob, who was in their employment. In 1990,

Suman Gaur who is the daughter of respondent Nos. 2 and 3,

began residing in the property with the permission from Andrew

Jacob. In 1995, Andrew Jacob died but Suman Gaur continued to

reside in the property with the permission of the BCTA. In 2002,

respondent No.3-William Dass father of the appellant / Victor

Dass / Suman Gaur became an employee of the BCTA, and was

allotted the property by BCTA. He was employed with BCTA
LPA No. 205/2017 Page 3 of 35
from 2002 till 2012, during which time respondents No. 2 and 3

were permitted by BCTA to reside in the property. It is a matter

of record that BCTA filed a suit for taking over possession of the

property, which is still pending. It is admitted by the appellant

and his brother Victor Dass in their writ petition that the

respondent Nos. 2 and 3 are the tenants in the property. It is noted

by the learned Single Judge that the BCTA, which is the lessor

paramount of the property, does not acknowledge any claim of

the appellant and his brother to the property, and has stated that

the appellant and his brother could claim only as children/legal

representatives of respondent Nos. 2 and 3.

4. It is the submission of Mr. Viresh B. Saharya, learned

counsel for the appellant that the Act of 2007 is a special law and

the jurisdiction and powers of the Tribunal are those which have

been stipulated in terms of specific provisions in the Act, which

have to be strictly construed. He stated, the jurisdiction and

procedure for conducting the proceedings before the Maintenance

Tribunal have been stipulated vide Section 6 and Section 7

respectively, for the purpose of adjudicating and deciding upon

the order for maintenance. Section 8 postulates summary

procedure and that the tribunal shall have all the powers of a
LPA No. 205/2017 Page 4 of 35
Civil Court for the purposes of taking evidence on oath and of

enforcing the attendance of witnesses and for compelling the

discovery and production of documents etc. It is his submission

that specific provision is made for order of maintenance in

section 9. According to him, various other provisions have been

made for purposes connected with maintenance, in Chapter II of

the Act. The respondents 2 and 3 had not invoked any of the

statutory obligations of a child or relative; and they do not want

maintenance from the appellant under Chapter II of the Act. He

stated, any impression, observation, view concerning moral,

pious or statutory obligation of a child or relative in relation to

the respondents 2 and 3, would be irrelevant and ought to be set

aside.

5. It was his submission in Chapter III (for establishment of

old homes), Chapter IV (for medical care of senior citizens),

Chapter VI (in respect of offenses and procedure for trial),

Chapter VII (Miscellaneous matters, including power to make

rules), there is no provision prescribing any obligation or

liabilities or the enforcement thereof in respect of child or

relative. He stated, Chapter V contains provisions for protection

of life and property of senior citizens. In section 21 and section
LPA No. 205/2017 Page 5 of 35
22, there is no provision prescribing any obligation or liability of

child or relative; nor provision is made for any role of the

Tribunal. Section 23 postulates transfer of property under certain

circumstances shall be declared as void. He stated, in the present

case, the provisions of section 23 are not applicable. None of the

specified circumstances and conditions have been invoked or

proved by the respondents 2 and 3 in the proceedings before the

Tribunal. In the application/petition filed by them before the

Tribunal, no such case was pleaded nor proved and no relief was

sought in terms of section 23. The Tribunal has not made any

such declaration postulated under section 23. The provisions

made in section 23 are not attracted and are wholly irrelevant for

the purpose of adjudication and decision of the present appeal.

6. He further submitted that in the Act of 2007, no provision

has been made for Tribunal’s jurisdiction or Powers for the

purpose of adjudicating and deciding upon matters of Civil

nature, except for maintenance under Chapter II and transfer of

Property in certain circumstances and that too for the limited

purpose of declaring such transfer void. Section 3 stipulates that

the “provisions of this Act” shall have overriding effect

“notwithstanding anything inconsistent therewith contained in
LPA No. 205/2017 Page 6 of 35
any enactment other than this Act’. In the absence of such a

provision regarding jurisdiction and powers of the Tribunal in

respect of the subject matter under discussion, the question of

“anything inconsistent therewith” in any other enactment, and the

question of its overriding effect, do not arise for any further

discussion. According to him, under section 27, jurisdiction of

civil court is barred in respect of matters to which any provision

of the Act applies. In the Act, there is no provision and the

Tribunal has no jurisdiction or power for purposes of adjudication

and deciding upon right, title, interest or status of the parties in

respect of the property; to declare the appellant a trespasser; order

him to vacate the property and / or direct police officers to evict

him; and that too, not according to procedure established by law.

The Tribunal was itself uncertain about its jurisdiction and

powers to entertain and dispose of a matter of civil nature; but,

this aspect of the case has been glossed over, not at all discussed,

nor any finding has been recorded in the final order.

7. In the alternative, it is his submission that the Tribunal

has improperly exercised jurisdiction by entertaining application /

petition of respondents 2 and 3, in conducting the inquiry,

directing and permitting production of documents and material
LPA No. 205/2017 Page 7 of 35
and relying upon inadmissible material, without giving

opportunity to the appellant to challenge probity and veracity of

such material, which is inconsistent with the provisions

prescribed in the Act. Further, by relying upon inadmissible

material; rather contrary to information furnished; recording

extraneous and perverse findings on matters not even pleaded and

beyond the prayer sought in the petition, the Tribunal has passed

the eviction order.

8. It is also his submission that the respondents 2 and 3 did

not make out a case and did not seek appellant’s eviction in the

application / petition filed before the Tribunal. According to him,

in any event, an eviction order would be inconsistent with the

object and scheme of various provisions made in the Act. An

eviction order would render the legally binding obligation upon

the child or relative, otiose. Order of eviction against child or

relative would result in breakdown of traditional norms and

values of the Indian Society and would perpetuate withering of

the joint family system. Such an action would be ultra vires the

Act. He stated, in fact, the appellant had been continuously

residing in the property for a long time even much prior to

commencement of the Act together with his entire family
LPA No. 205/2017 Page 8 of 35
including the respondents 2 and 3. The findings and observations

made in the order of the Maintenance Tribunal, and, in the

impugned judgment by the Ld. Single Judge are based upon

conjectures and surmises. The same are not supported by any

cogent material and/ or admissible evidence on record. The Ld.

Single Judge has erred in the exercise of power of

superintendence over the Tribunal’s eviction order which is

without jurisdiction, and/ or, improper exercise of its jurisdiction

and, perverse findings recorded in the eviction order, which are

inconsistent with material on record. He would rely upon the

following judgments in support of his contention:-

(i) Rajesh Kumar Bansraj Gandhi v. State of Gujarat
Special Civil Application No. 19040/2015 decided on May 05,
2016;

(ii) Motiben Jadavbhai Malani Education Charitable
Trust vs. State of Gujarat LPA No. 10/2000 March 13, 2012;

(iii) Shri Krishna Chandraji v. Shyam Behari Lal AIR 1955
ALL 177;

(iv) Harvinder Kaur Bawa v. The Appellate Tribunal
Panchkula Ors CWP No. 17482/2015 October 17, 2016;

(v) State of Himachal Pradesh Ors v. Satpal Saini C.A.
No. 1654/2017 February 08, 2017;

(vi) Lalappa Lingappa ors v. Laxmi Vishnu Textiles Mills
Ltd AIR 1981 SC 852;

LPA No. 205/2017 Page 9 of 35

(vii) Smt. Shrisht Dhawan v. Shaw Brothers AIR 1992 SC
1555;

(viii) B.S. Nat v. Bachan Singh AIR 1971 PH 144;

(ix) State of West Bengal v. Atul Krishna Shaw AIR 1990
SC 2205;

(x) M/s Lalchand Bhagat Ambica Ram v. Commissioner of
Income Tax, Bihar Orissa AIR 1959 SC 1295.

(xi) Shadab Khairi Anr. v. The State Ors LPA 783/2017
decided on February 22, 2018.

9. On the other hand, Ms. Aakanksha Kaul, learned counsel

for the respondent No.2 (as we have been informed that

respondent No.3 has since expired) would submit, that the claim

for eviction before the Tribunal was maintainable under Section

23 of the Act of 2007 as admittedly, the respondent No. 3 was a

tenant and the appellant had no claim qua the property in

question. The appellant was at best living with the permission of

his parent, respondent No.3, which permission stands long

withdrawn. Bald disputes raised by the children challenging the

title of the parent to the property are not sufficient to prevent the

Courts from granting the relief. In such circumstances if the

respondents were compelled to knock the door of the civil court

and fight a legal battle to obtain exclusive possession of the

LPA No. 205/2017 Page 10 of 35
property, the very purpose of the Act of 2007 will stand defeated.

10. According to her, provisions of the 2007 Act, including

Section 23, must be interpreted in light of the object of the Act.

Since the Act of 2007 confers on the Tribunal the express power

to declare a transfer of property void at the option of the

transferor under Section 23, it has to be presumed that the intent

of the Legislature is to empower the Tribunal to pass effective

and meaningful orders including all consequential directions to

give effect to the said order. The direction of eviction is a

necessary consequential relief or a corollary to which a senior

citizen would be entitled to upon a transfer being declared void.

The interest of the respondent in the property, whether as licensee

or tenant, falls within the definition of “property” under Section

2(i) and 23 of the Act of 2007. Definition of ‘property’ under

Section 2(i) is wide and comprehensive to include any right or

interest in any immovable property and not just ownership.’ The

meaning of “transfer” is not restricted to “actual transfer of title

and ownership” and does not exclude “possession of property”.

Even if it is assumed that the appellant did not trespass and

forcibly occupied the property and that he had been permitted to

stay in the property, such permissive use would amount to
LPA No. 205/2017 Page 11 of 35
transfer of the property in question on the condition that appellant

would not harm them physically or mentally. She would rely

upon the following judgments in support of her contention:-

(i) Spring Meadows Hospital and another v.

Harjolahluwalia through K.s. Ahluwalia and another Civil
Appeals No. 7708/1997 and connected appeal decided on March
25, 1998;

(ii) Nasir v. Govt. of NCT of Delhi Ors. W.P.(C) No.
9717/2015 decided on October 13, 2015;

(iii) Justice Shanti Sarup Dewan, Chief Justice (Retired)
and another v. Union Territory, Chandigarh and others LPA
No. 1007/2013 decided on September 26, 2013;

(iv) Promil Tomar and others v. State of Haryana and
others CWP 20072/2013 decided on December 06, 2013;

(v) Jayantram Vallabhdas Meswania v. Vallabhdas
Govindram Meswania, Special Civil Application No.
13954/2012 decided on October 18, 2012;

(vi) Union of India and another v. Paras Laminates (P) Ltd.
(1990) 4 SCC 453;

(v) Gurpreet Singh v. State of Punjab Ors.CWP No.
24508/2015 decided on December 01, 2015;

(vi) Harpreet Kaur Anr. v. State of Punjab Ors. SLP©
No. 10742/2016 decided on April 25, 2016.

11. Having heard the learned counsel for the parties, the issue

which has been decided by the learned Single Judge is whether

LPA No. 205/2017 Page 12 of 35
the Act of 2007 provides for a remedy to Senior Citizens / parents

of monetary maintenance by the children / relative and / or does it

provide for eviction of adult children in case of parental abuse.

The said question has been answered by the learned Single Judge

by referring to various judgments as relied upon by both the

parties. It is noted that in the impugned order, the learned Single

Judge has also answered the question whether a claim for

eviction before the Maintenance Tribunal is maintainable under

Section 23 of Act of 2007 and that too on allegations of forcible

ouster and in the absence of a claim for maintenance. The

learned Single Judge concluded that Sections 4 and 23 are

separate and distinct remedies. In other words, the claim for

maintenance is not a condition precedent for passing an order of

eviction under Section 23 of the Act of 2007. He referred to two

judgments of the Punjab Haryana High Court in the case of

Promil Tomar and others v. State of Haryana and others

(supra) and Justice Shanti Sarup Dewan, Chief Justice

(Retired) and another v. Union Territory, Chandigarh and

others (supra) in coming to the aforesaid conclusion. We have

also considered the aforesaid aspect. On a perusal of the

provisions of the Act of 2007, it is seen that the same has been
LPA No. 205/2017 Page 13 of 35
enacted to provide for effective provisions for the maintenance

and welfare of parents and senior citizens guaranteed and

recognized under the Constitution and for matters connected

therewith or incidental thereto. The necessity of framing the Act

is because of the erosion of joint family system resulting in the

elderly parents and senior citizens getting neglected by the

children including lack of physical and financial support from

them. Section 3 of the Act of 2007 gives the overriding effect

over any other enactment / instrument. Chapter II of the Act deals

with the maintenance of parents and senior citizens. Section 4 of

the Act enables a senior citizen including parent who is unable to

maintain himself from his own earnings or out of the property

owned by him to make an application under Section 5 for his /

her maintenance so that he / she can lead a normal life. Chapter

V of the Act of 2007 deals with protection of life and property of

senior citizens. Section 23(1) under Chapter V confers a power

on the Tribunal to declare transfer of property in certain

circumstances as void. Section 23(2) inter-alia stipulates that a

senior citizen has a right to receive maintenance out of an estate

and if such estate or part thereof is transferred, the right to receive

maintenance may be enforced against the transferee if the
LPA No. 205/2017 Page 14 of 35
transferee has notice of the right, or if the transfer is gratuitous;

but not against the transferee for consideration and without notice

of right. There is nothing in Section 23, which pre-supposes an

application for maintenance as a prerequisite for seeking a relief

under it. The scope of Section 23 is to declare the transfer of

property by a senior citizen with an intent that the transferee shall

provide the basic amenities and physical needs to the transferor

and if such transferee refuses or fails to provide such amenities

and physical needs, in such an eventuality, the transfer of

property can be declared void by the Tribunal. A senior citizen

may be contended if the transfer of property effected is treated as

void so as to enable him to maintain himself from the estate, for

which a senior citizen may not seek maintenance. So the plea of

the learned counsel for the appellant that in the absence of a

claim for maintenance by the respondent Nos.2 and 3, a petition

under Section 23 shall not be maintainable, is without any merit.

Further, the Delhi Government had initially framed Delhi

Maintenance and Welfare of Parents and Senior Citizens Rules,

2009, which have been amended in the year 2016, whereby Sub

Rule 3(1)(i) has been incorporated to Rule 22 of the Rules. The

same reads as under: –

LPA No. 205/2017 Page 15 of 35

“(i) A senior citizen may make an application before
the Dy. Commissioner/District Magistrate(DM) of
his district for eviction of his son and daughter or
legal heir from his self acquired property on account
of his non-maintenance and ill-treatment.

XXXXX XXXXX XXXXX”

12. The said Sub Rule has undergone an amendment in the

year 2017 to the following extent:-

“(i) A senior citizen/parents may make an
application before the Deputy
Commissioner/District Magistrate of his district for
eviction of his son and daughter or legal heir from
his property of any kind whether movable or
immovable, ancestral or self-acquired, tangible or
intangible and include rights or interests in such
property on account of his non-maintenance and ill-
treatment.”

13. The said Sub Rule 3 has been incorporated in Rule 22 of

the Rules to give effect to Section 23 of the Act and not to

Section 4 of the Act. So, it follows that it is not necessary that to

invoke Section 23, one has to seek maintenance under Section 4.

14. The learned Single Judge is right in relying upon the

judgments in the case of Promil Tomar (supra) and Justice

Shanti Sarup Dewan, Chief Justice (Retired) and another

(supra) by holding as under:-

36. The Courts have repeatedly acknowledged the
right of the senior citizens or parents to live
peacefully and with dignity. In Promil Tomar
LPA No. 205/2017 Page 16 of 35
(supra) the Punjab and Haryana High Court has
held that peaceful living for the senior citizens in
their property is the apparent objective of the
Maintenance Act.

37. In the present case, though the allegation of the
respondents No. 2 and 3 is of the trespass and
forcible occupation of the property by the
petitioners, yet even if it is presumed, as alleged by
the petitioner No. 1, that he had been permitted to
stay in the property, then also it would amount to
transfer of the property in question. Needless to
state, that even this permissive use amounts to
transfer and that too on the condition that petitioner
No.1-son would not harm them physically or
mentally. In fact, in the Indian context, there would
be a presumption that the transfer was subject to
petitioner No.1-son providing all the basic
necessities and looking after the physical needs of
the senior citizens. Since the Maintenance Tribunal
has found that the petitioner No.1-son has
committed acts of physical assault and mental
cruelty on the senior citizens, the pre-conditions
mentioned in Section 23 stand satisfied.

38. There is nothing in the language or purported
intent of Section 23 of the Act 2007 to indicate that
the Tribunal has the power to declare a transfer of
property void if and only if the senior citizen is
seeking maintenance under the Act from the opposite
party.

39. In Justice Shanti Sarup Dewan (supra), the
Punjab Haryana High Court passed an eviction
order under the Act, 2007 where not only no
maintenance had been sought by the senior citizen,
but in fact the senior citizen had volunteered to pay
Rs.10,000/- as monthly maintenance to his son.

40. Consequently, Section 4 and Section 23 are
LPA No. 205/2017 Page 17 of 35
separate and distinct remedies and the claim for
maintenance is not a condition precedent for passing
an eviction order under Section 23 of the Act,
2007.”

15. Insofar as the submission of the learned counsel for the

appellant that the Tribunal did not have the jurisdiction to direct

the appellant to vacate the property is concerned, suffice to state,

that as stated above, the Government of NCT of Delhi has framed

Rules called Delhi Maintenance and Welfare of Parents and

Senior Citizens Rules, 2009. The same were amended in

December, 2016, whereby Sub Rule 3 was incorporated to Rule

22, which stipulates as under: –

“(3)(1) Procedure for eviction from
property/residential building of Senior
Citizen/Parents –

(i) A senior citizen may make an application before
the Dy. Commissioner/District Magistrate(DM) of
his district for eviction of his son and daughter or
legal heir from his self acquired property on account
of his non-maintenance and ill-treatment.

(ii) The Deputy Commissioner/DM shall
immediately forward such application to the
concerned Sub Divisional Magistrates for
verification of the title of the property and facts of
the case within 15 days from the date of receipt of
such application.

(iii) The Sub Divisional Magistrate shall
immediately submit its report to the Deputy
LPA No. 205/2017 Page 18 of 35
Commissioner/DM for LPA 783/2017 Page 7 final
orders within 21 days from the date of receipt of the
complaint/application.

(iv) The Deputy Commissioner/DM during summary
proceedings for the protection of senior citizen
parents shall consider all the relevant provisions of
the said Act 2007. If the Deputy Commissioner/DM
is of opinion that any son or daughter or legal heir
of a senior citizen/parents is not maintaining the
senior citizen and ill treating him and yet is
occupying the self acquired property of the senior
citizen, and that they should be evicted, the Deputy
Commissioner/DM shall issue in the manner
hereinafter provided a notice in writing calling upon
all persons concerned to show cause as to why an
order of eviction should not be issued against
them/him/her.

(v) The notice shall-

(a) specify the grounds on which the order of
eviction is proposed to be made; and

(b) require all persons concerned, that is to say, all
persons who are , or may be, in occupation of, or
claim interest in, the property/premises, to show
cause, if any, against the proposed order on or
before such date as is specified in the notice, being a
date not earlier than ten days from the date of issued
thereof.

(2) Eviction Order from property/residential
building of Senior Citizens/Parent. –

(i) If, after considering the cause, if any, shown by
any person in pursuance to the notice and any
evidence he/she may produce in support of the same
and after giving him/her a reasonable opportunity of
LPA No. 205/2017 Page 19 of 35
being heard, the Deputy Commissioner/DM is
satisfied that the eviction order needs to be made,
the Deputy Commissioner/DM may make an order of
eviction, for LPA 783/2017 Page 8 reasons to be
recorded therein, directing that the
property/residential building shall be vacated;

(3) Enforcement of Orders,

(i) If any person refuses or fails to comply with the
order of eviction within thirty days from the date of
its issue, the Deputy Commissioner/DM or any other
officer duly authorized by the Deputy
Commissioner/DM in this behalf may evict that
person from the premises in question and take
possession;

(ii) The Deputy Commissioner/DM shall have
powers to enforce the eviction orders through Police
and the Dy. Commissioner of Police concerned shall
be bound to carry out execution of the eviction
order.

(iii) The Deputy Commissioner/DM will further
handover the property/premises in question to the
concerned Senior Citizen.

(iv) The Deputy Commissioner/DM shall forward
monthly report of such cases to the Social Welfare
Department by 7th of the following month.”

16. A further amendment has been carried out to Sub Rule 3

to Rule 22 of the Delhi Maintenance and Welfare of Parents and

Senior Citizens Rules, 2009 in the year 2017, which amendment

has already been reproduced above. The aforesaid Rules also

deal with enforcement of orders passed by the Tribunal.

17. A reading of the Rules framed by the Government of

LPA No. 205/2017 Page 20 of 35
NCT clearly reflect that a senior citizen can file an application

seeking eviction of his son and daughter or legal heir from his

self acquired or ancestral property on the ground of ill-treatment

or non maintenance. The vires of these Rules has not been

challenged by the appellant. The limited challenge is to the

jurisdiction of the Maintenance Tribunal to order an eviction

under the Act of 2007. So noting the limited challenge to the

order passed by the Tribunal and keeping in view the fact that the

enactment being a social legislation and the same requires to be

given liberal interpretation to achieve the mandate of the Act of

2007 i.e for the welfare of the parents and senior citizens and for

the protection of their life and property, there is no doubt that the

Tribunal does have the jurisdiction to direct vacation by the

children of any property in which the senior citizen has a right of

residence / possession. In this regard, we may refer to the

judgment of the Supreme Court in Board of Muslim Wakfs,

Rajasthan v. Radha Krishna and Ors (1979) 2 SCC 468 wherein

it was held that the construction which tends to make any part of

the Statute meaningless or ineffective must always be avoided

and the construction which advances the remedy intended by the

Statute should be accepted.

LPA No. 205/2017 Page 21 of 35

18. In Hindustan Lever Ltd vs Ashok Vishnu Kate Ors

1995 SCC (6) 326, it was held that words occurring in statutes of

liberal import such as social welfare legislation and human rights

legislation are not to be put in Procrustean beds or shrunk to

Liliputian dimensions. In construing these legislations the

imposture of literal construction must be avoided and the

prodigality of its misapplication must be recognized and reduced.

19. On a similar proposition, the Supreme Court in State of

Bihar Ors. V. Anil Kumar and Ors AIR 2017 SC 2716 has by

relying upon National Insurance Co. Ltd. v. Laxmi Narain Dhut

(2007) 4 SCALE 36 held as under: –

“68. A statute is an edict of the Legislature and in
construing a statute, it is necessary to seek the
intention of its maker. A statute has to be construed
according to the intent of those who make it and
the duty of the court is to act upon the true
intention of the Legislature. If a statutory provision
is open to more than one interpretation the Court
has to choose that interpretation which represents
the true intention of the Legislature. This task very
often raises difficulties because of various reasons,
inasmuch as the words used may not be scientific
symbols having any precise or definite meaning and
the language may be an imperfect medium to convey
one’s thought or that the assembly of Legislatures
consisting of persons of various shades of opinion
purport to convey a meaning which may be obscure.
It is impossible even for the most imaginative
Legislature to foresee all situations exhaustively
and circumstances that may emerge after enacting
LPA No. 205/2017 Page 22 of 35
a statute where its application may be called for.
Nonetheless, the function of the Courts is only to
expound and not to legislate. Legislation in a
modern State is actuated with some policy to curb
some public evil or to effectuate some public
benefit. The legislation is primarily directed to the
problems before the Legislature based on
information derived from past and present
experience. It may also be designed by use of
general words to cover similar problems arising in
future. But, from the very nature of things, it is
impossible to anticipate fully the varied situations
arising in future in which the application of the
legislation in hand may be called for, and, words
chosen to communicate such indefinite referents
are bound to be in many cases lacking in clarity
and precision and thus giving rise to controversial
questions of construction. The process of
construction combines both literal and purposive
approaches. In other words the legislative intention
i.e., the true or legal meaning of an enactment is
derived by considering the meaning of the words
used in the enactment in the light of any
discernible purpose or object which comprehends
the mischief and its remedy to which the enactment
is directed. (See District Mining Officer and Ors. v.
Tata Iron Steel Co. Anr. JT 2001 (6) SC 183).
It is also well settled that to arrive at the intention
of the legislation depending on the objects for
which the enactment is made, the Court can resort
to historical, contextual and purposive
interpretation leaving textual interpretation aside.

(emphasis supplied)

69. It was also opined:

More often than not, literal interpretation of a
statute or a provision of a statute results in
absurdity. Therefore, while interpreting statutory
provisions, the Courts should keep in mind the
objectives or purpose for which statute has been
enacted. Justice Frankfurter of U.S. Supreme Court
in an article titled as Some Reflections on the
LPA No. 205/2017 Page 23 of 35
Reading of Statutes (47 Columbia Law Reports 527),
observed that,
“legislation has an aim, it seeks to obviate some
mischief, to supply an adequacy, to effect a change
of policy, to formulate a plan of Government. That
aim, that policy is not drawn, like nitrogen, out of
the air; it is evidenced in the language of the
statutes, as read in the light of other external
manifestations of purpose”.

20. The learned Single Judge has also relied upon the

judgments of the Punjab Haryana High Court and Gujarat High

Court in the case of Justice Shanti Sarup Dewan, Chief Justice

(Retired) and another (supra) and Jayantram Vallabhdas

Meswania (supra).

21. In para of Justice Shanti Sarup Dewan, Chief Justice

(Retired) and another (supra), the Punjab Haryana High Court

has held as under:-

“37. It cannot be said that in such a situation, where
respondent No. 7 was at best living with the
permission of his parents, which permission stands
long withdrawn, the appellants and more
specifically appellant No.1 should be compelled to
knock the door of the civil court and fight a legal
battle to obtain exclusive possession of the property.
This would defeat the very purpose of the said Act
which has an over- riding effect qua any other
enactment in view of Section 3 of the said Act.
Infact, the Civil Court has been precluded from
entertaining any matter qua which jurisdiction is
vested under the said Act and specifically bars
granting any injunction. Respondent No. 7 is thus
LPA No. 1007 of 2013 (OM) required to move out
LPA No. 205/2017 Page 24 of 35
of the premises to permit the appellants to live in
peace and civil proceedings can be only qua a claim
thereafter if respondent No. 7 so chooses to make in
respect of the property at Chandigarh but without
any interim injunction. It is not the other way round
that respondent No. 7 with his family keeps staying
in the house and asking the appellants to go to the
Civil Court to establish their rights knowing fully
well that the time consuming civil proceedings may
not be finished during the life time of appellant No.1.
Infact, that is the very objective of respondent No.

7.”

22. Further, in Jayantram Vallabhdas Meswania (supra), in

paras 14 15, the Division Bench of Gujarat High Court has

held as under:-

“14. It, however, appears that respondent’s children
are not taking sufficient care and are not providing
proper and sufficient maintenance for the
respondent and that therefore so as to maintain
himself the respondent needs sufficient
earning/income whereby he can maintain himself
and provide for his own food, clothing, medical
attendance and treatment, etc. Therefore, the
respondent asked the petitioner to handover the
possession of the part of the premises (property)
wherein the petitioner is staying with his wife.
However, the petitioner declined to handover the
possession of the part of the premises which is in his
possession. In view of such conduct and action of the
petitioner the respondent was compelled to file the
application wherein the authority passed the
impugned order. It appears that in his application
the respondent requested the authority to take
appropriate measures as per Section 23 so as to get
the possession of the part of the premises. The
petitioner opposed the application and has now
challenged the impugned orders on the ground that
LPA No. 205/2017 Page 25 of 35
the same are beyond the scope and purview of
Section 23. Emphasis is placed on the expression
“transfer of property” in the said provision. It is
claimed that the respondent has not transferred the
property in his favour and therefore the provision
would not be applicable and could not have been
invoked.

14.1.However, the petitioner conveniently overlooks
the provision under Section 4 of the Act. Sub Section
(1) of Section 23 provides, inter alia, that where a
senior citizen has transferred by way of gift or
otherwise, his property, subject to the condition that
the transferee shall provide basic amenities and
physical needs to the transferor then the transfer
may be declared void if the transferee refuses or
fails to provide such amenities. Sub Section (2) of
Section 23 provides, inter alia, that where a senior
citizen has right to receive maintenance out of an
estate which is transferred, the right to receive
maintenance may be enforced against the transferee
provided that the transfer is not made for
“consideration”.

14.2. As mentioned above, it is not in dispute that
the petitioner is in possession and occupation of part
of the property/premises.

14.3.It is also not in dispute that the petitioner is “in
possession of property” without consideration.

14.4.It also does not appear to be in dispute that as
an elder son of the respondent the petitioner also
would inherit right/interest in the property.

15. The question which, therefore, arises is whether
the term “transfer” in Section 23 of the Act should
be construed so as to mean only actual transfer of
ownership and title or the said expression should be
LPA No. 205/2017 Page 26 of 35
construed, having regard to the object of the Act and
the provisions under Section 2(b), 2(d), 2(f), 2(h)
and Section 4, so as to also include possession of the
property as well.

15.1. It is noticed earlier that Sub Section (4) of
Section 4 provides, inter alia, that any person who
would inherit the property (which includes right or
interest in such property) and is “in possession of
property” shall maintain such senior citizen which
includes the needs of such senior citizen to lead
normal life.

15.2. Having regard to the object of the Act and the
intention of the legislature, there is no reason or
justification or indication to restrict the meaning
and scope of the term “transfer” so as to mean only
“actual transfer of title and ownership” and to
exclude “possession of property” from the purview
of Section 23 and/or from the term “transfer”
employed in Section 23 of the Act.

15.3. There is no provision in the Act to suggest or
to indicate that the said term carries very narrow,
and literal meaning so as to mean only actual
transfer of title and ownership and the concept of
possession, which is recognized by the Act –
particularly under Section 4 of the Act, has to be
kept out.

15.4.On overall consideration and having regard to
the provision under Sections 2(b), 2(d), 2(f), 4 and
the object of the Act, the said term should receive
wider meaning so as to include
possession/occupation of property, as well. The said
concept is already recognised, accepted and
internalised by the Act vide Section 4 of the Act.

15.5. It is not in dispute that the property is in name

LPA No. 205/2017 Page 27 of 35
of the respondent and he has the right to receive
maintenance i.e. income/earning from the said
property.

15.6. In view of the said provisions, the term
“transfer of property” should receive wide and
liberal construction so as to include an act of
allowing possession and/or occupation of premises
or part of the premises provided, of course, the
possession is not allowed for consideration
(including rent).

15.7. Sub Section (2) of Section 23 contemplates a
situation where the transferor has right to receive
maintenance from such property then such
transferor can enforce the right to receive
maintenance from the transferee.

15.8. For the purpose of the said provision the
transferee would mean person who is allowed
possession and/or occupation of the
premises/property or part of the premises/property
from which the transferor i.e. the owner of the
premises/property can, otherwise, receive
income/earning i.e. maintenance.

15.9. The provisions under Section 23 of the Act
cannot be, and need not be, read in isolation or by
divorcing the said provision from other provisions,
particularly Section 4 of the Act read with Section
2(b), 2(f), 2(g) 2(h) of the Act.”

23. We agree with the conclusion arrived at by the High

Courts in the aforesaid judgments. At the cost of repetition, we

may state here that having regard to the object of the Act (i) the

term “transfer” shall include actual transfer of title or ownership;

LPA No. 205/2017 Page 28 of 35
the act of allowing possession of property / allowing stay in the

property or in part of property from which the Senior Citizen /

Parents can earn income to maintain themselves and (ii) similarly

the term “transferee” shall mean the children / legal heir in

whose favour the property, is transferred or is in possession of or

are staying in the property or part of the property (but without

consideration).

24. In fact, we find a Coordinate Bench of this Court in the

case of Shadab Khairi Anr. (supra), has, by referring to the

judgment, which is under challenge i.e Sunny Paul

Anr. v. State of NCT of Delhi Ors in paras 18 to 20 held as

under;-

“18. A plain reading of the above extracted Rules
clearly reflect that a senior citizen is entitled to
institute an application seeking eviction of his son,
daughter or other legal heir from his self-acquired
property on the ground of ill-treatment and non-
maintenance.

19. It must be observed that in instant proceedings,
neither the vires of the Act nor the Rules framed
thereunder have been assailed on behalf of the
appellants. What is assailed is the competence of the
Maintenance Tribunal to render an order of eviction
under the Act. Further, it is canvassed that the Act
does not contemplate eviction per se. Alternatively,
it has been urged that respondent No.3 being
possessed of sufficient means and assets was
disentitled from maintaining an application seeking
LPA No. 205/2017 Page 29 of 35
maintenance within the meaning of the provisions of
the Act.

20. We do not agree. At the outset, we had
elaborated on how beneficial legislation in a
welfare State demands a liberal interpretation wide
enough to achieve the legislative purpose and be
responsive to some urgent social demand in a
welfare State. The object for which the Act as well
as the subject Rules, extracted hereinabove, were
brought into force, namely, for the welfare of
parents and senior citizens and for protection of
their life and property, leave no manner of doubt
that the Maintenance Tribunal constituted under
the Act has the power and jurisdiction to render the
order of eviction. (emphasis supplied)”

25. In the case in hand, it is an admitted case of the appellant

that the property was allotted by the BCTA to the respondent

No.3-the late father of the appellant being an employee of the

said Trust. It clearly imply that the appellant herein has no right

to reside in the property contrary to the wishes of the respondents

2, more particularly when there are serious allegations against the

appellant of ill-treatment, misbehavior with respondent Nos.2 and

3, (who is no more). They had rightly filed a petition before the

Tribunal.

26. During the course of the submissions, the learned counsel

for the appellant stated that the Tribunal could not have granted a

relief, which was not sought by the respondent Nos.2 and 3 in

LPA No. 205/2017 Page 30 of 35
their compliant. He draws our attention to the complaint itself to

contend that the same was primarily for registration of an FIR

against the appellant. We are unable to accept such a plea of the

learned counsel for the appellant for the simple reason, the relief

sought in the complaint, as can be seen from page 97 of the paper

book and which reads as under, it is clear that the respondent

Nos.2 and 3 did seek an order of enjoyment of the property to the

exclusion of the appellant. So, the Tribunal could have granted

the relief as given.

“In view of the facts and submission made above in
brief, it is therefore, most respectfully requested to
register FIR against the accused persons named
above and to be arrested them and punished under
the provisions of law and to grant protection to the
old aged complainant and his wife so that the
complainant and his wife may enjoy their remaining
life peacefully alongwith his daughter at her house
who are taking care and lookafter and providing all
the necessities of life on humanitarian grounds for
this kind act the complainant shall be highly
thankful to you.”

27. Insofar as the judgments relied upon by the learned

counsel for the appellant are concerned, in Rajesh Kumar

Bansraj Gandhi (supra) the Gujarat High Court was considering

the legality of order dated October 30, 2015 passed by the Sub

Divisional Magistrate exercising his powers under the Act of

LPA No. 205/2017 Page 31 of 35
2007, whereby SDM directed the petitioners before the High

Court to handover the possession of the house property described

as B/1, Santosh Nagar Society, Camp Road, Shahibaug,

Ahmedabad to the second respondent. From the order, it is noted

the only reasoning given by the Tribunal is that since the

petitioners were harassing the applicant, i.e., respondent No.2,

possession of the house in question was liable to be handed over

to the said respondent. The High Court was of the view that the

reason, tantamount to no reason, much less a valid reason. It held

that the order is cryptic and illegal and on that ground, has set

aside the order and remanded the matter back to the Maintenance

Tribunal to take up the case afresh and pass an order after

keeping in view inter-alia the object of the Act of 2007 for grant

of maintenance. The judgment is distinguishable being in

peculiar facts of that case.

28. The judgment in the case of Motiben Jadavbhai Malani

Education Charitable Trust (supra) was relied upon by the

learned counsel for the appellant only in support of his contention

that in the absence of any pleading or specific prayer, no

directions could have been issued by the learned Single Judge for

cancelling grant in aid of the appellant as institution. Suffice it to
LPA No. 205/2017 Page 32 of 35
state, in view of our finding in para 26 above, this judgment has

no applicability to the issue in hand.

29. The judgment in the case of Shri Krishna Chandraji

(supra) is on similar lines as the case of Motiben Jadavbhai

Malani Education Charitable Trust (supra). This judgment

will also have no relevance to the issue in question.

30. Insofar as the case of Harvinder Kaur Bawa (supra) is

concerned, we note that the said judgment has been referred to

and dealt with by the learned Single Judge. In the said case, the

prayer of the petitioner was rejected by the learned Single Judge

of the Punjab Haryana High Court by holding that the

petitioner was required to file an application under Section 22 (2)

of the Act of 2007, and not much less under the Action Plan,

which is altogether different procedure to be followed. The

judgment is distinguishable on facts.

31. Similarly in State of Himachal Pradesh Ors (supra) v.

Satpal Saini (supra), wherein the challenge was to a direction of

a Division Bench of the High Court directing the State

Government to amend the provisions of Section 118 of the HP

Tenancy Land Reforms Act, 1972 within a period of 90 days

and thereby allowing the writ petition challenging the order dated
LPA No. 205/2017 Page 33 of 35
April 23, 2014 of the Revenue Authorities. In effect, the

direction of the High Court to the State was to attest the mutation

by treating the respondent as an agriculturist. The appeal before

the Supreme Court was primarily to the extent of challenging the

direction to amend the legislation. The Supreme Court has

allowed the appeal holding that such a direction is manifestly

unsustainable. According to us, the said judgment has no

relevance to the issue, which falls for consideration in this case.

32. In Lalappa Lingappa ors v. Laxmi Vishnu Textiles

Mills Ltd (supra), the reliance placed by the learned counsel on

paras 13 and 14 of the judgment wherein it was held that in

construing a social welfare legislation, the Court should adopt a

beneficent rule of construction. If a section is capable of two

constructions, that construction should be preferred which fulfills

the policy of the Act and is more beneficial to the persons in

whose interest, the Act has been passed. The said proposition of

law is squarely applicable to the issue in hand, as noted by us in

the aforesaid paragraphs. This judgment would not help the case

of the appellant.

33. The judgment in the cases of Smt. Shrisht Dhawan v.

Shaw Brothers (supra), State of West Bengal v. Atul Krishna
LPA No. 205/2017 Page 34 of 35
Shaw (supra) and M/s Lalchand Bhagat Ambica Ram v.

Commissioner of Income Tax, Bihar Orissa (supra) have no

relevance to the issue in question, more so in view of our

conclusion above.

34. In view of the discussion above, we do not see any merit

in the appeal. The same is dismissed. No costs.

CM No. 11669/2017

Dismissed as infructuous.

V. KAMESWAR RAO, J

CHIEF JUSTICE

OCTOBER 03, 2018/ak

LPA No. 205/2017 Page 35 of 35

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