Rajubhai vs Manubhai – Gujarat High Court

Gujarat High Court

Rajubhai vs Manubhai on 9 December, 2010

SCA/10852/2010 7/ 7 ORDER IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10852 of 2010

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RAJUBHAI MANUBHAI RATHOD & 1 – Petitioner(s)
Versus
MANUBHAI HIRJIBHAI RATHOD & 2 – Respondent(s)
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Appearance :
MS MARIYAMDALAL for Petitioner(s) : 1 – 2.
MR ANKUR Y OZA for Respondent(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 2 – 3.

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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
Date: 09/12/2010

ORAL ORDER

1. Heard learned Counsel for the parties, for final disposal of the petition.

2. Petitioners are the son and daughter-in-law respectively, of respondent No.1. They have challenged an order dated 10.03.2010, passed by the Deputy Collector, Bhavnagar, as confirmed by an order dated 29.07.2010, passed by the District Magistrate & Collecotr, Bhavnagar, in the appeal filed by the present petitioners.

3. Issues arise under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as the ‘Said Act’).

4. Respondent No.1 herein, is owner of a constructed property in Ghanchiwad area of Bhavnagar town. The petitioners are residing therein for some time. On the premise that respondent No.1 along with his wife and unmarried daughter, was driven out of the said property, by his son and daughter-in-law, he applied to the Deputy Collector, Bhavnagar, for being re-inducted in the property in question. Under the purported exercise of powers, under the provisions of Section-23 of the said Act, the Deputy Collector, after hearing the parties, vide his impugned order dated 10.03.2010, accepted the application of respondent No.1. He held that the property in question is self-acquired property of respondent No.1 and directed that the petitioners shall handover the vacate and peaceful possession to the said respondent, within 30 days, from the date of the said order.

5. Petitioners, therefore, preferred appeal, purportedly under Section-16 of the said Act. The District Magistrate, however, dismissed the appeal, by an order dated 29.07.2010.

6. First and foremost, I have serious doubts about the maintainability of appeal under Section-16(1) of the said Act, which 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.”

7. Admittedly, Sub-section(1) of Section-16 permits a senior citizen or a parent, who is aggrieved by an order of the Tribunal, to prefer an appeal before the Appellate / Maintenance Tribunal, constituted under Section-7 of the said Act. The term ‘tribunal’ has been defined under Section-2(j), which reads as follows:

“2. …
(j) “Tribunal” means the Maintenance Tribunal constituted under section 7;”

8. The terms ‘parent’ and ‘senior citizens’ have been defined under Sections-2(d) and 2(h) respectively, in the following manner:

“2. …

(d) “parent” means father or mother whether biological, adoptive or step-rather or step-mother, as the case may be, whether or not the father or the mother is a senior citizen …

(h) “senior citizen” means any person being a citizen of India, who has attained the age of sixty years or above; “

9. The petitioners, being neither the parents nor senior citizens, it is doubtful whether, could have preferred appeal under Sub-section(1) of Section 16 of the said Act.

10. I have examined the legality of the order passed by the Deputy Collector. Section-23 of the said Act pertains to transfer of property to be void in certain circumstances and reads as follows:

23. Transfer of property to be void in certain circumstances.-(1) where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall the option of the transferor be declared void by the Tribunal. (2) Where any senior citizen has aright to receive maintenance out of an estate and sch estate or part thereof is transferred, the right to receive maintenance maybe enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right. (3) If, any senior citizen is incapable of enforcing the rights under sub-sections(1) and (2), action may be taken on his behalf by any of the of the organization referred to in Explanation to sub-section (1) of section 5.

11. I do not see how the case of the petitioners would be covered, either under Sub-section(1) or Sub-section(2) of Section-23 of the said Act. Sub-section(1) of the said Act is applied when the property in question has been transferred by way of gift or otherwise. Such transfer can be declared void in certain circumstances, specified therein. In the present case, however, as per respondent No.1, there was no transfer of property, either by way of gift or otherwise. Sub-section(1) of Section-23 of the said Act, therefore, would not apply.

12. Sub-section(2) of Section-23 of the said Act, would cover a situation where a senior citizen has asserted his right to receive maintenance, out of a particular estate, when such estate is transferred. Once again, this is not the case in the present mater. The case of respondent No.1, therefore, would not fall, either under Sub-section(1) or (2) of Section-23 of the said Act. Deputy Collector, therefore, could not have passed any order under Section-23 of the Act. The order of the Deputy Collector is, therefore, bad in law.

13. Under the circumstances, the order order dated 29.07.2010, passed by the District Magistrate & Collector, Bhavnagar, in Appeal Case No.1 of 2010, is SET ASIDE.

14. On 25.10.2010, this Court passed following interim order:

“Heard learned advocates appearing on behalf of respective parties Considering submissions made by learned advocates, let respondent may file affidavit in reply against present petition on or before 19th November 2010. Accordingly, matter is adjourned to 19 th November 2010.

Meanwhile, it is open for respondent along with his wife and unmarried daughter to reside with present petitioners and it is also directed to both petitioners to permit them to reside in the premises in question along with them, if they so desired. Except this arrangement, order passed by Deputy Collector, Bhavnagar and District Magistrate and Collector Bhavnagar are hereby stayed till 19th November 2010.

Direct service is permitted.”

15. Learned Counsel for the petitioners submitted that they have no objection if respondent No.1, along with his wife and unmarried daughter, resides in the said premises.

16. Since respondent No.1 is the owner of the property in question, in any case, he has such a right. It is, therefore, clarified that, while allowing the appeal and setting aside the order dated 29.07.2010, respondent No.1 has every RIGHT to RESIDE in his own house along with his wife and unmarried daughter and the petitioner shall NOT PREVENT him from exercising such a right or create any hindrance in enjoying the said right.

17. With the above observations and directions, this petition is DISPOSED of.

(AKIL KURESHI, J.)

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