Uttarakhand High Court
(Under Article 227 Of The Constitution ... vs State Of Uttarakhand And Another on 30 August, 2024
Author: Vivek Bharti Sharma
Bench: Vivek Bharti Sharma
2024:UHC:6283
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 1430 of 2024
(Under Article 227 of the Constitution of India)
Smt. Usha Bakshi
W/o Late Shri R.K. Bakshi,
R/o 188, Indiranagar Colony,
Phase-1, Dehradun
Versus
State of Uttarakhand and another .......Respondents
Mr. Alok Kumar, Senior Counsel (through Video Conferencing) assisted by
Mr. Priyanshu Gairola and Mr. Amit Kumar Singh, counsel for the
petitioner.
Mr. Yogesh Chandra Tiwari, Standing Counsel for the State.
Mr. Sagar Kothari, counsel for respondent no.2.
Reserved on 18.07.2024
Delivered on 30.08.2024
Hon'ble Vivek Bharti Sharma, J.
This writ petition under Article 227 of the Constitution of India has been filed by the petitioner/mother against the judgment and order dated 31.05.2023 (annexed as Annexure-2 to the writ petition) passed by Appellate Tribunal, Dehradun in Appeal No.05 of 2022, whereby the appeal filed by the petitioner/mother against the impugned order dated 21.05.2022 (annexed as Annexure-1 to the writ petition) passed by learned Maintenance Tribunal, Dehradun in Case No.49 of 2020-21 was disallowed.
2. Brief facts of the case are that the petitioner/mother filed an application under Section 5 read with Section 22 of the 'Maintenance and Welfare of Parents and Senior Citizens Act, 2007' (hereinafter referred as 'the Act, 2007') which was partly allowed 2024:UHC:6283 and the Maintenance Tribunal directed the respondent no.2/son to pay a sum of Rs. 7,000/- as monthly maintenance to the petitioner/mother, however, the prayer for eviction of the respondent no.2/son, was disallowed. Feeling aggrieved, the petitioner/mother filed an Appeal No. 05 of 2022 before the Appellate Tribunal/District Magistrate, Dehradun, which was also disallowed by the Appellate Tribunal vide judgment and order dated 31.05.2023. Hence, this petition.
Submissions by petitioner/mother
3. Senior counsel for the petitioner/mother would submit that the petitioner/mother had received the possession of the house property in question constructed on Land Plot No.188 admeasuring no.569.28 sq. yards Indira Nagar Colony, Dehradun (hereinafter referred to as 'house property') by way of sale deed of the house and registered transfer of lease deed of the land, where the house was constructed; that, by virtue of this registered deed of transfer of lease of the land and sale deed of the house constructed thereupon, the petitioner/mother is the absolute and exclusive owner of this house; that, respondent no.2 is the real son of the petitioner, however, he had been forcing the petitioner/mother to transfer this house property in his name by way of Will and to handover its possession; that, on 14.12.2017, respondent no.2/son misbehaved with petitioner/mother and tormented her mentally and physically due to which the petitioner/mother was forced to leave the house property for her safety and well being and took shelter in an old age home (Vridha Ashram).
2024:UHC:6283 Senior Counsel for the petitioner/mother would further submit that after the death of husband of petitioner, the respondent no.2/son forcibly got an amount of ` 30,00,000/- transferred in his own account from the account of petitioner/mother and thereafter started beating the petitioner/mother and pressurizing her to transfer the house property also in his name or to execute the Will in his favour and due to this excessive mental and physical torture of the petitioner/mother at the hands of the respondent no.2/son, health of the petitioner/mother deteriorated badly.
4. Senior Counsel for the petitioner/mother would further submit that the respondent no.2/son instead of providing any maintenance or medical treatment to the petitioner/mother tormented her and was pressurizing to ask her daughters for provisions, maintenance and treatment; that, in July 2019 when petitioner/mother suffered the paralytic attack even then the respondent no.2/son did not take care of her and it was Nishu, the daughter of the petitioner/mother who provided medical treatment to the petitioner/mother from Sri Mahant Indresh Hospital for 15 days and thereafter for 45 days at a rehabilitation centre and during this entire period of treatment the respondent no.2/sonnever visited the petitioner.
5. Senior counsel for the petitioner would further submit that the petitioner/mother even after having her own house, is living with her daughter in a rented accommodation whereas the respondent no.2/son, who is a Software Engineer by profession, is leading a lavish 2024:UHC:6283 life in the petitioner's house property in question; that, in such circumstances, the petitioner/mother filed the application under Section 5 read with Section 22 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 before the Maintenance Tribunal thereby praying, inter-alia, for monthly maintenance to the tune of ` 10,000/-, recovery of `30,00,000/- and eviction of respondent no.2 from the property in question.
6. He would further submit that the Maintenance Tribunal, vide order dated 21.05.2022, partly allowed the petition thereby granting her maintenance @ ` 7,000/- per month and to provide petitioner provision to meet her medical and other expenses and not to torment the petitioner/mother but disallowed the other prayer for eviction of respondent no.2/son from her house property; that, being aggrieved, petitioner/mother preferred an appeal before the Appellate Tribunal, Dehradun, but, the same was also disallowed vide impugned order dated 31.05.2023.
7. Learned senior counsel for the petitioner/mother would further submit that the learned Maintenance Tribunal and the Appellate Tribunal failed to appreciate the fact that the petitioner/mother was exclusive and absolute owner of the property in question and that the petitioner/mother, being a 74 year old senior citizen with feeble and frail health due to old age was helpless, and now the impugned orders have made her hapless also; that, she is unable to defend and protect herself and her property from the constant and never ending 2024:UHC:6283 harassments and cruelties at the hands of respondent no.2/son.
8. Senior counsel for the petitioner/mother would further submit that the Maintenance Tribunal and the Appellate Tribunal have also erred in observing that the appropriate remedy for the petitioner/mother for eviction of respondent no.2/son, is civil suit. He would further submit that mere pendency of a civil suit for possession does not in any way oust the jurisdiction of the Tribunal created by the Act for granting relief of eviction.
To bolster his submission, he would place reliance on a judgment rendered by Hon'ble Punjab and Haryana High Court in the case of "Manmohan Singh vs. Union Territory, Chandigarh and Ors. 2015 SCC Online P&H 18136"
Submissions of respondent no.2/son
9. Per contra, learned counsel for respondent\ no.2/son would submit that the relations of the respondent no.2/son with the petitioner/mother had always been cordial; that, the respondent no.2/son always looked after her well being; that, after the death of his father in the year, 2018, the mother fell ill and entire medical care and expenses of the petitioner were taken care of by the respondent no.2/son.
10. Learned counsel for the respondent no.2/son would vehemently oppose the prayer in respect of the relief of eviction on the ground that the petitioner/mother has already filed a civil suit being O.S. No.1089/2020, which is pending before the court 2024:UHC:6283 of 9th Additional Civil Judge (Junior Division), Dehradun and in the said suit, respondent no.2/son has filed a counterclaim seeking declaration of ownership by virtue of family settlement; that, since the petitioner/mother became the owner of the property through benami transaction vide a sale deed, therefore, he is equally entitled for his undivided share in the property in question.
11. Counsel for the respondent no.2/son relying upon the judgment of Hon'ble High Court of Patna in the case of 'Anil Prakash and Others Vs. State of Bihar through the District Magistrate cum Presiding Officer and others 2023 SCC OnLine Pat 2366' and would submit that if the children have some legally enforceable civil right in the property then their eviction by taking recourse of the provisions of the Act, 2007 may be difficult and the parents/senior citizens should take recourse of due process of law in Civil Court for eviction of children.
12. Considered the submissions of learned counsel for the parties and perused the material available on record.
13. The provisions of the Act 2007 are in form of social reform law which provides need-based maintenance to parents and senior citizens and to ensure that senior citizen can live a life of dignity and live peacefully in their homes. The Act, 2007 not only provide for effective provisions for maintenance and welfare of senior citizens guaranteed under the Constitution of India, but also protect their properties to meet its objects.
2024:UHC:6283 Rule 19 of the Rules, 2011 framed in exercise of the powers conferred under Section 32 of the Act of 2007 enumerates duties and powers of the District Magistrate in the area of his jurisdiction and obligates him to oversee and monitor the work of Maintenance Tribunal of the district.
Rule 19 sub-rule (2)(i) mandates the District Magistrate to take all steps to protect the life and property of senior citizens of the District.
Section 5(1)(c) of the Act 2007 says that Tribunal can take suo moto cognizance.
14. Section 22(2) of the Act, 2007 mandates that the State Government shall provide a comprehensive action plan for protecting the life and property of senior citizen, therefore, in light of the above provisions, while perusing the impugned order, the Appellate Tribunal has committed an error of law in rejecting the appeal. The refusal for eviction of respondent no.2/son from the property in question is incorrect, unsustainable and against the letter and spirit of the legislation.
15. The Act, 2007 was promulgated with a view to provide a speedy and inexpensive remedy to senior citizens and to ensure protection of their life and property. The said right cannot be curtailed, hence, the impugned orders have not justifiably been passed by the Tribunal as well as by the Appellate Tribunal/District Magistrate, Dehradun as the same frustrates the very purpose and object of the Act, 2007, which is a special statute enacted to protect the interest of the parents and senior citizens.
2024:UHC:6283
16. It is pitiful that in the land of Rama and Sharvan Kumar who were so dedicated to their parents that former left for forests for 14 years on command of his father and later took his parents on religious journey (Tirth Yatra) carrying them in Kanwad on his shoulders, the legislature had to pass this 'Act' to protect lives and property of the parents and senior citizen and for efficacious and expeditious remedies for providing them maintenance.
It would not be out of place to note that notwithstanding Section 125 Cr.P.C. (as the criminal procedure was at that time) present Section 144 of Bhartiya Nagarik Suraksha Sanhita, the duty was cast upon the children to provide for maintenance, even then for expeditious and efficacious remedy, this Special Act was enacted.
17. Perusal of the record reveals that there is allegation of mental and physical torture of the petitioner/mother by respondent no.2/son and his wife and to compel her to transfer the house property in question in favour of respondent no.2/son and due to said excessive torture, the petitioner/mother suffered a paralytic attack, when petitioner needed immediate medical attention, the respondent no.2/son instead of admitting her in the hospital, called his sister and informed who took the petitioner/mother to the hospital but due to the delay in treatment, the petitioner/mother suffered severe clotting in her brain leading to paralysis and the petitioner/mother was also admitted in the rehabilitation centre for 45 days.
2024:UHC:6283 It is an admitted fact that the house property in question is in the name of petitioner/mother, but, the respondent no.2/son is living in the property in question, whereas, the petitioner/mother is living with her married daughter in a rented accommodation.
The submission of learned counsel for the respondent no.2/son is misconceived that the property in question was the benami property purchased by the father of the respondent no.2/son in the name of his mother i.e. petitioner, therefore, same is the ancestral property in which the respondent no.2/son has undivided share.
18. It is pertinent to note that Section 3 of The Prohibition of Benami Property Transactions Act, 1988 (hereinafter referred to as 'Benami Act') prohibits the benami transactions and makes it a punishable offence with imprisonment for a term which may extend to three years or with fine or with both. Section 3 of the Benami Act is extracted hereunder:
"3. Prohibition of benami transactions- (1) No person shall enter into any benami transaction.
(2) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
(3) Whoever enters into any benami transaction on and after the date of commencement of the Benami Transactions (Prohibition) Amendment Act, 2016, shall, notwithstanding anything contained in sub-section (2), be punishable in accordance with the provisions contained in Chapter VII."
It would not be out of place to observe that prior to the amendment to this Section by Act of 43 of 2016, the Sub-Section 2 of Section (3) of the Act was as under.
2024:UHC:6283 "3 (2) Nothing in sub-section (1) shall apply to--
(a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife of the unmarried daughter."
It is germane to note that the property in question was purchased in the name of the petitioner/mother in the year 1986 i.e. prior to the notification of this Benami Transactions Act, 1988. Therefore, the counterclaim of decree of declaration in favour of the respondent no.2/son that the property in question was purchased by his father in the name of the petitioner/mother as benami transaction, consequently, petitioner/mother is not the owner of the property in question is misplaced as the unamended but now deleted Sub-Section (2) of Section (3) of the Benami Transaction Act, shall apply with force as the Benami transaction Act is not with retrospective effect. The presumption as per Section 3(2)(a) of the Benami Act would lie in favour of the petitioner/mother that the property in question in her name was purchased either by herself or by her husband for her benefit.
Hence, this presumption also lies in favour of the petitioner/mother unless the contrary is proved. Therefore, since it has not been proved otherwise, the property is either the self acquired property of the petitioner/mother or by virtue of the statutory presumption as per Clause (a) of Sub-Section(2) of Section 3 of unamended Benami Transaction Act, petitioner/mother would be the property owner.
19. It is also pertinent to note that, even otherwise, Section 4 of the Benami Transaction Act, 2024:UHC:6283 1988 says that no suit, claim or action to enforce any right in respect of any property held benami shall lie by or on behalf of claiming to be the real owner of such property and no defence shall be available for the same. Section 4 of Benami Transaction Act reads as under....
"4. Prohibition of the right to recover property held benami- (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property."
20. The Hon'ble Supreme Court in its judgment Duvuru Mohana Reddy V Allure Nagi Reddy AIR 1994 SC 1647 has observed in paragraph-6:
"........the defence raised by the contesting respondents that the transaction of sale under the sale deed dated October 9, 1957 executed in favour of the appellants was a benami transaction is prohibited in view of Section 4(2) of the Act."
In view of above, this Court is of the considered view that the respondent no.2/son does not have any legal enforceable civil right in the property in question to stall his eviction under Section 22 of the Act, 2007.
21. It is a settled principle of law that while interpreting the law the Court has to keep in mind the object of the statute and intent of the Legislature which is necessary to analyze the aim and objective behind the enactment of the present Act. The interpretation of the Uttarakhand Maintenance of Parents and Senior Citizen Rules 2011 should be done keeping in mind 2024:UHC:6283 that the act confers the power and casts duty upon the Maintenance Tribunal to ensure protection of life and dignity of senior citizen which can impliedly include the power to order eviction if it becomes necessary.
22. It has also been dealt by the Hon'ble Supreme Court while considering the scheme of the Act, 2007 in case of Smt. S. Vanitha vs. Deputy Commissioner, Bengaluru Urban District and Ors (2021) 15 SCC 730 that the Tribunal does possess the power to order eviction from the property of senior Citizen if it is necessary and expedient to ensure the maintenance and protection. Relevant part of judgment is reproduced herein below: -
"25 ..........The Tribunal under the Senior Citizens Act, 2007 may have the authority to order an eviction, if it is necessary and expedient to ensure the maintenance and protection of the senior citizen or parent. Eviction, in other words would be an incident of the enforcement of the right to maintenance and protection. However, this remedy can be granted only after adverting to the competing claims in the dispute........."
23. It is apparent that the relationship between the petitioner/mother and the respondent no.2/son is very strained and respondent no.2/son wants to stay in the house of the petitioner, which is the property of the petitioner/mother. Due to mental agony and harassment, the petitioner/mother seeks removal of her son i.e. respondent no.2 from the house property.
24. Consequently, this Court is of the opinion that, the Maintenance Tribunal without considering the facts and provisions of the Act, 2007 has erred in its impugned order dated 21.05.2022 by denying the prayer of eviction of the respondent no.2/son from the 2024:UHC:6283 house property in question to ensure the protection of petitioner/mother and Appellate Tribunal has also erred by disallowing the appeal of petitioner/mother against the order of Maintenance Tribunal/S.D.M.
25. In view of the above, the writ petition stands allowed.
26. The order dated 31.05.2023 passed by the Appellate Tribunal is hereby set aside.
27. The order dated 21.05.2022 passed by Maintenance Tribunal is hereby modified to the extent that in addition to relief granted by Tribunal, the respondent no.2/son shall vacate the house property in question and handover peaceful vacant possession of the same to the petitioner/mother within seven days from the date of judgment, failing which, the Appellate Tribunal is directed to ensure the same within next three days thereafter.
28. No order as to costs.
29. Registry is directed to send a copy of this order to the Maintenance Tribunal as well as to the Appellate Tribunal/District Magistrate for necessary compliance.
(Vivek Bharti Sharma, J.) 30.08.2024 Mamta MAM Digitally signed by MAMTA RANI DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=9f3ef5e40c7881302fc TA da45af446d3419e6d6e990fbd 25a59bdb957bba484d0d, postalCode=263001, st=UTTARAKHAND, serialNumber=5DE1751A4F1D RANI 9CABFD54852C9E68911CA8B 66DD26690A191648AB5D8DD 004EF0, cn=MAMTA RANI Date: 2024.09.02 12:43:54 +05'30'