Rajasthan High Court - Jodhpur
Himmat Singh vs Sub Divisional Magistrate And Anr on 7 August, 2018
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ No. 36/2012
Himmat Singh
----Petitioner
Versus
Sub Divisional Magistrate, Sriganganagar & Anr.
----Respondents
For Petitioner(s) : Mr. Avinash Acharya.
For Respondent(s) : Mr. Sunil Beniwal.
HON'BLE MR. JUSTICE SANDEEP MEHTA
Order Reportable 07/08/2018 The matter today comes up on an application No.01/2018 preferred on behalf of the respondent No.2 for preponing the date fixed in the matter.
With the consent of the learned counsel for the parties, the date fixed by the office is preponed and the matter is being heard and decided finally today itself. The application is thus allowed.
Through this writ petition under Article 226/227 of the Constitution of India, the petitioner Himmat Singh being the son of respondent No.2 Shri Nait Ram (parent and senior citizen), has approached this Court for assailing the order (Annexure-6) dated 22.12.2011 passed by the SDM, Sri Ganganagar whereby, the application filed by the respondent No.2 Nait Ram under Section 23 of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as the 'Act of 2007') was allowed and the petitioner was directed to vacate the house (2 of 5) [CW-36/2012] No.41, Nagori Colony, Sri Ganganagar owned by the respondent No.2.
The main thrust of arguments advanced by Shri Avinash Acharya learned counsel representing the petitioner for assailing the impugned order was that the Executive Magistrate has no powers under Section 23 of the Act of 2007 to direct a son to vacate the house of his parents because none of the circumstances contemplated in the provision exist in such a relationship. He further urged that the petitioner has got numerous properties in Sri Ganganagar and that he has no genuine requirement for the house in question. On these grounds, he implored the Court to exercise its extraordinary writ jurisdiction and strike down the impugned order as amounting to gross illegality.
Per contra, Shri Sunil Beniwal, learned counsel representing the respondent No.2 vehemently opposed the submissions advanced by the petitioner's counsel and contended that house in question is a self acquired property of the respondent. The petitioner had been permitted to reside therein out of love and affection of the father. However, the petitioner is, rather than performing his obligations as a major son of old parents, misbehaving and harassing them on which, the respondent was compelled to move the application for getting the house in question vacated. He urged that the respondent is entitled to use the property to serve his ends as per his requirements and that the petitioner has no right to insist for retaining possession thereof. He urged that a wider interpretation has to be given to Section 23 of the Act of 2007 so as to give real meaning to a legislation framed from providing relief to suffering senior citizen, (3 of 5) [CW-36/2012] parents who have been neglected/ maltreated by their children and it should be laid down that the power to restore the vacant possession of the property owned by such senior citizen is imbibed therein.
I have heard and appreciated the arguments advanced at bar and have carefully perused the material available on record.
Hon'ble the Division Bench of the Delhi High Court in Shadab Khairi & Anr. Vs. The State & Ors. (LPA No.783/2017) decided on 22.02.2018 and Single Bench of Delhi High Court in Sachin & Anr. Vs. Jhabbu Lal & Anr. (RSA No.136/2016) decided on 24.11.2016, have dealt with the scope and ambit of the provisions of the Act of 2007 and have categorically laid down that the empowered officer is seized of jurisdiction to direct restoration of vacant possession of the property owned by a senior citizen. In the case at hand, there is no dispute that the property in question is owned by the respondent No.2 being a senior citizen. The petitioner son, who was given permission by the father to reside in two rooms of the said property i.e. House No.41, Nagori Colony, Sri Ganganagar out of love and affection, has retained possession thereof against the desire of the senior citizen i.e. his father. Section 23 of the Act of 2007 reads as below:
"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 at the option of the transferor be declared void by the Tribunal.
(4 of 5) [CW-36/2012] (2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be 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 organisation referred to in Explanation to sub-section (1) of section 5."
Section 23 of the Act of 2007 is a socio-beneficial legislation and has to be given a wider interpretation so as to benefit the recipients i.e. the neglected senior citizens and parents. Section 23(1) empowers the Tribunal to declare void, a transfer of property by a senior citizen under any of the circumstances enumerated therein. The transfer may be to the transferee by way of gift or otherwise. In the firm opinion of this Court, even permission to reside in the property to a relative out of love and affection would be covered within the purview of Section 23 of the Act of 2007. Thus, the Tribunal would be acting well within its jurisdiction while directing restoration of possession of property in which, the senior citizen or the parent has allowed a relative including a son or daughter to reside out of love and affection. This view is fortified by the above referred judgment of the Delhi High Court. As the relative in the present case is none other than the petitioner being the major son of the respondent No.2 and since, he has failed to perform his social obligations viz. providing the basic amenities and physical needs to the senior citizen and his father, the respondent, the possession of the petitioner over the house in question was rightly declared void keeping in view the language of the statutory provision.
(5 of 5) [CW-36/2012] In this background, I find no infirmity, irregularity or perversity in the impugned order (Annexure-6) dated 22.12.2011 passed by the SDM, Sri Ganganagar warranting interference therein in exercise of the extraordinary/ supervisory writ jurisdiction of this Court.
Hence, the writ petition as well as stay application are dismissed as being devoid of merit.
No order as to costs.
(SANDEEP MEHTA),J Tikam/34 Powered by TCPDF (www.tcpdf.org)