Senior Citizens rights
before maintenance Tribunal and Writ remedy
The Maintenance &
welfare of Parents & Senior Citizens Act 2007 (MWPSCA) has been enacted to
cater to the needs of senior citizens, as it has been observed that Senior
citizens in the twilight period of their life often face ridicule in the family
and not being looked after adequately. Keeping in view of the redressal of
grievances of such sufferings, therefore, MWPSCA was enacted.
However, what is observed
is that against the order of the Tribunal constituted under MWPSCA, a large
number of writ petitions are filed before the High Court challenging the orders
passed under the said Act, and rules framed thereunder. It is also not clear to
many, if the orders shall be appealable and if so, where or whether a writ
petition shall lie? In the above perspective, it is imperative to appreciate
the scheme of the Act and the Rules framed in this regard. It is further
necessary to set out the provisions which are applicable separately qua
maintenance and eviction proceedings.
The Delhi High Court has deliberated on the aspect
in a matter reported as Rakhi Sharma
vs The State & Ors. AIRONLINE 2021 DEL 303.
That in so far as maintenance
proceedings under MWPSCA relating to
for the welfare of parents and senior citizens are concerned, the relevant
provision is Section 2 (j) of the Act and it provides that the 'Tribunal' would
be the forum for exercising first jurisdiction. 'Tribunal' is defined
under Section 2 (j) MWPSCA. It may be noted that the 'Maintenance
Tribunal' is constituted under Section 7. Which is reproduced as under:
Section 7- Constitution of Maintenance Tribunal.
(1) The State Government
shall within a period of six months from the date of the commencement of this
Act, by notification in Official Gazette, constitute for each Sub-division one
or more Tribunals as may be specified in the notification for the purpose of
adjudicating and deciding upon the order for maintenance under Section 5.
(2) The Tribunal shall be presided over by an officer not below
the rank of Sub- Divisional Officer of a State.
(3) Where two or more Tribunals are constituted for any area, the
State Government may, by general or special order, regulate the distribution of
business among them."
That the Rule 3(2) further
provides for the constitution of the `Maintenance Tribunal' under Section
7 which reads as under:
"3. Constitution of
Maintenance Tribunal ...
(2) The Tribunal shall consist of an ADM or SDM of the
subdivision, as the case may be and two other members, of whom one shall be
women. ..."
Thus, the Maintenance Tribunal under Section 7 of
the Act would be the ADM or the SDM of the concerned sub-division.
APPEALS
In order to file appeal in
maintenance related matters, the relevant prescription is contained in Section
15 of the Act, under which the State has to constitute an Appellate
Tribunal. The section 15 may be perused as under:
"15. Constitution of Appellate Tribunal
(1) The State Government
may, by notification in the Official Gazette, constitute one Appellate Tribunal
for each district to hear the appeal against the order of the Tribunal.
(2) The Appellate Tribunal
shall be presided over by an officer not below the rank of District
Magistrate."
Similarly, Rule 16 deals with the establishment and procedure of
the Appellate Tribunal, under which, the District Magistrate of each District
has been notified as the Appellate Tribunal. Rule 16 reads as under:
"16. Establishment and
Procedure of Appellate Tribunal The Government of National Capital Territory of
Delhi shall, by notification in the official Gazette, constitute for each
District one Appellate Tribunal as may be specified in the notification to hear
the appeal against the order of Tribunal under Section 15(1) of the
Act."
As per above, appeals can be filed by any by any senior citizen or
parent against an order of the Tribunal within 60 days with the Appellate
Tribunal. Thereafter, the Appellate Tribunal has to adjudicate and decided on
the appeal. Section 16 reads as under:
"16. Appeals.
(1) Any senior citizen or a
parent, as the case may be, aggrieved by an order of a Tribunal may, within
sixty days from the date of the order, prefer an appeal to the Appellate
Tribunal:
Provided that on appeal,
the children or relative who is required to pay any amount in terms of such
maintenance order shall continue to pay to such parent the amount so ordered,
in the manner directed by the Appellate Tribunal:
Provided further that the
Appellate Tribunal may, entertain the appeal after the expiry of the said
period of sixty days, if it is satisfied that the appellant was prevented by
sufficient cause from preferring the appeal in time.
(2) On receipt of an
appeal, the Appellate Tribunal shall, cause a notice to be served upon the
respondent. (3) The Appellate Tribunal may call for the record of proceedings
from the Tribunal against whose order the appeal is preferred.
(4) The Appellate Tribunal
may, after examining the appeal and the records called for either allow or
reject the appeal.
(5) The Appellate Tribunal
shall, adjudicate and decide upon the appeal filed against the order of
the Tribunal and the order of the Appellate Tribunal shall be final:
Provided that no appeal
shall be rejected unless an opportunity has been given to both the parties of
being heard in person or through a dully authorised representative.
(6) The Appellate Tribunal
shall make an endeavour to pronounce its order in writing within one month of
the receipt of an appeal.
(7) A copy of every order
made under sub-section (5) shall be sent to both the parties free of
cost."
WHO CAN PREFER APPEAL
The question as to who can
prefer the appeal has already been decided by Delhi High Court in the following
judgments:
i.
Naveen Kumar Vs GNCTD & Ors [W.P.(C) 1337/2020, decided
on 5th February, 2020];
ii.
Shri Amit Kumar Vs Smt
Kiran Sharma& Anr . [W.P.(C) 106/2021, decided on 6th January, 2021];
iii. Sh. Shumir
Oliver & Anr VsGNCTD & Ors . [W.P.(C) 2857/2021, decided on 3rd March,
2021]
The
aforesaid judgments makes it clear that any `affected person' can prefer the
appeal and not just a senior citizen or parent. The Division Bench of the
Punjab and Haryana High Court in Paramjit Kumar Saroya Vs The Union of India
& Anr , 2014 SCC OnLine P&H 10864 has been the earlier
precedent in this regard.. The relevant observations are set out below:
"An appeal is
envisaged "against the order of the Tribunal". This is how Section
15 reads. It does not say an appeal only by a senior citizen or parent.
However, sub section (1) of Section 16 refers to any senior citizen or a
parent "aggrieved by an order of the Tribunal". This seeks to give an
impression on a plain reading as if only a senior citizen or parent can prefer
an appeal and, thus, restricting the appeal to only one set of party, while
denying the right of appeal to the opposite side who are liable to maintain.
However, this is not followed by the first proviso which deals with the
operation of the impugned order during the pendency of the appeal and clarifies
that the pendency of the appeal will not come in any manner in the way of the
children or relative who is required to pay any amount in terms of any such
order to continue to pay the amount. Now it can hardly be envisaged that in an
appeal filed by the senior citizen or parent, there could be a question of
absence of stay. Such absence of stay was only envisaged where the appeal is
preferred by a children or relative. It is that eventuality the proviso deals
with. The proviso is, thus, consistent with what has been set out in Section
15 of the said Act. ...”
Proceedings relating to eviction
In so far as eviction
proceedings are concerned, the same are governed by The Delhi Maintenance and
Welfare of Parents and Senior Citizens Rules (Amendment) Rules, 2016. By the
said amendment, after sub rule 2 of Rule , sub-rule 3 was inserted. Rules
22(3)(1) and 22(3)(4) are relevant and are set out below:
"22. Action plan for the protection of life and property of senior
citizens. -
. (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 Commissioner/DM
for 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 issue thereof.
(3)
Appeal
(i) The appeal against the
order of Dy. Commissioner/DM shall lie before the Divisional Commissioner,
Delhi.
(ii) Provisions regarding disposal of appeal before Appellate
Tribunal shall apply mutatis mutandis to the appeals before the Divisional
Commissioner, Delhi."
That as per the above
Rules, thus, what emerges is that a senior citizen can approach the Deputy
Commissioner/DM seeking eviction of the son, daughter or any other legal heir
from his self-acquired property on account of his non-maintenance and
ill-treatment. The term 'self-acquired property' has been amended to include
'property of any kind', vide notification dated 28th July, 2017 numbered F.No.40(405)/
Amendment of Rules MAWPSC2007/DD(SS)/ DSW/ 2015-6/1168411712. Thus, the senior
citizen can approach the Deputy Commissioner/DM for eviction from any property
over which he/she enjoys rights. Accordingly, the title of the senior citizen may
be ascertained and a report is submitted by the concerned SDM after verifying
both the title as also the facts pleaded. If the Deputy Commissioner/DM is
satisfied, then, in that event notice is
generally issued to the children/relatives or legal heirs, who is sought to be
evicted and after hearing the parties necessary orders could be passed.
That under Rule 22(3)(4),
an appeal against the order of the Deputy Commissioner/District Magistrate
would lie before the Divisional Commissioner, Delhi. Thus, in respect of
eviction, the first forum would be the Deputy Commissioner/District
Magistrate. A challenge to the order of the Deputy Commissioner/DM would lie
before the Divisional Commissioner.
In Rakhi Sharma (Supra) the following directions are issued:
The Deputy Commissioner/DM under Rule 23(3) of the Rules as
amended on 19th December, 2016, should mention,
For maintenance cases:
"The present order
would be appealable, under Section 16 of the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 read with Rule 16 of The Delhi
Maintenance and Welfare of Parents and Senior Citizens Rules, 2009, to the
Appellate Tribunal, presided over by the Deputy Commissioner of the concerned
District. The period of limitation for filing of appeal is 60 days."
And in For eviction cases:
It should
be specified-
"The present order
would be appealable under Rule 22(3)(4) of The Delhi Maintenance and Welfare of
Parents and Senior Citizens Rules, 2009, as amended on 19th December, 2016
before the Divisional Commissioner, Delhi. The period of limitation for filing
of appeal is 60 days."
The hon’ble Delhi High
Court, therefore, in Rakhi Sharma (Supra) was pleased to further
direct that the order be communicated to all the Maintenance Tribunals and
Appellate Tribunals, as also the concerned Presiding Officers who are
exercising powers under the Rules. It is held that whenever writ petitions are
filed against original orders, the Registry should inform the lawyers of the
availability of the alternate remedy, in case they wish to avail of the same.
In view of the above discussion, it was held that the order passed by the
Tribunal would be appealable to the Divisional Commissioner under Rule 22(3)(4)
and therefore the petition was dismissed as withdrawn. with liberty to the
Petitioner to approach the Divisional Commissioner. Thus, generally, The writ petition shall lie against the order
passed in the appeal by the Appellate Tribunal and not by the Maintenance
tribunal, in view of existence of alternate remedy of appeal.
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Anil K
Khaware
Founder
& Senior Associate
Societylawandjustice.com
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