Karnataka High Court
H C Raghu vs The Assistant Commissioner And on 30 May, 2023
Author: Krishna S Dixit
Bench: Krishna S Dixit
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WP No. 21179 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT PETITION NO. 21179 OF 2021 (GM-RES)
BETWEEN:
H C RAGHU,
S/O LATE CHANNEGOWDA,
AGED ABOUT 43 YEARS,
R/AT HOSA UNDAVADI VILLAGE,
BELAGOLA HOBLI, SRIRANGAPATNA TALUK,
MANDYA DISTRICT 571606.
...PETITIONER
(BY SRI. KRISHNAMURTHY G HASYAGAR.,ADVOCATE)
AND:
1. THE ASSISTANT COMMISSIONER AND
THE PRESIDENT, MAINTENANCE AND
WELFARE OF PARENTS AND
Digitally
signed by SENIOR CITIZENS ACT, 2007,
SHARADA OFFICE OF THE ASSISTANT COMMISSIONER,
VANI B PANDAVAPURA SUB-DIVISION, PANDAVAPURA,
Location: MANDYA DISTRICT. 571 434.
HIGH COURT
OF
KARNATAKA 2. SMT. PUTTALAKSHMAMMA,
W/O LATE CHANNEGOWDA,
AGED ABOUT 75 YEARS,
R/AT HOSAUNDAVADI VILLAGE,
BELAGOLA HOBLI, SRIRANGAPATNA TALUK,
MANDYA DISTRICT 571606.
...RESPONDENTS
(BY SMT.SHWETA KRISHNA., AGA FOR R1;
SRI. VIKRAM HULIGOL., SENIOR COUNSEL A/W
SMT.AMRUTHA VARSHINI M C.,ADVOCATE FOR R2)
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WP No. 21179 of 2021
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ANNEXURE-G THE IMPUGNED ORDER
DTD.11.11.2021 PASSED BY THE R-1 THE ASSISTANT
COMMISSIONER AND THE RESIDENT MAINTENANCE AND
WELFARE OF PARENTS AND SENOR CITIZENS ACT 2007.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This Petition seeks to lay a challenge to the order dated 11.11.2021 made by the 1st Respondent at Annexure-G whereby in exercise of power availing under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, he has voided the subject Gift Deed dated 30.10.2013. Learned counsel for the Petitioner submits that the provisions of Section 23 of the 2007 Act are not invokable in the absence of the Gift Deed stipulation a condition that the transferee shall provide the basic amenities and basic physical needs to the transferor. In support of this, he presses into service a Division Bench decision of this Court in W.A.No.573/2022 (G-RES) between SRI. NANJAPPA v. STATE OF KARNATAKA & OTHERS, disposed off on 17.03.2023.
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2. Learned AGA appearing for the official Respondent and the learned Sr. Advocate representing the private Respondent resist the Petition contending that the stipulation as such need not being the Gift Deed; even otherwise, such a condition can be proved de hors the Gift Deed. They bank upon a decision of Apex Court in Civil Appeal No. 174/2021 between SUDESH CHHIKARA v. RAMTI DEVI & ANOTHER, disposed off on 06.12.2022.
3. Having heard the learned counsel for the parties and having perused the Petition papers, this Court is inclined to grant indulgence in the matter for the following reasons:
a) At the outset, it should be said that this matter lies in a very narrow compass and the question of law involved therein is no longer res integra. Section 23(1) of the 2007 Act has the following text:
"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 -4- WP No. 21179 of 2021 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 at the option of the transferor be declared void by the Tribunal."
(Other Sub-sections not being relevant, are not reproduced.) The above text is as clear as can be and therefore, does not admit any interpretative process for ascertaining the true meaning & intent. A plain reading of the Section would unmistakably indicate that the condition of the kind should emanate from the conveyance of the property, be it gift or otherwise.
b) The vehement submission of learned Sr. Advocate that the statute in general and the provisions of Section 23 in particular, enact a socio-welfare policy of the State inter alia for the senior citizens and therefore, a liberal construction should be placed on them, cannot be much disputed. The question is "how liberal the construction should be"? Ordinarily, a statute which is as clear as Gangetic Waters does not admit any interpretation. There has been a strong presumption that the Legislature knows -5- WP No. 21179 of 2021 the language and it employs it in the legislative process. The intention of the Legislature is primarily to be gathered from the language used; that is to say that Courts should give attention what has been said i.e., litera legis. The Privy Council in CRAWFARD vs. SPOONER, 4 Moo Ind App 179 (PC) said, "We cannot aid the legislature's defective phrasing of an Act; we cannot add or mend and, by construction make up deficiencies which are left there...." That being the position, it is difficult to countenance the contention of Respondents that the condition even if is not reflected in the conveyance can be proved allende, without manhandling the text of the provision. This view gains support from the Division Bench decision supra.
c) Mr. Vikram Huilgol's reliance on decision of the Apex Court in Sudesh Chhikara mentioned above does not come to his rescue; at paragraph 11, Sub-section 1 of Section 23 is reproduced; at paragraph 12, the said Sub- section is analyzed stating that the transfer must have been made subject to the condition and the transferee -6- WP No. 21179 of 2021 should fail to comply with the same; both these conditions are treated as being cumulative; at paragraph 13, some observations are made as to the requirement of such a condition being "attached to a transfer"; at paragraph 14, the absence of pleading as to there being such a condition in the Release Deed (involved in that case) is stated. Court observed "... it is not even pleaded by the respondent no.1 that the release deed was executed subject to such a condition". The ratio contra to the view of this Court cannot be gathered from the perusal of the said decision.
In the above circumstances, the Writ Petition succeeds; a Writ of Certiorari issues quashing the impugned order.
Costs made easy.
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JUDGE Bsv List No.: 1 Sl No.: 4