The Lucknow Bench of the Allahabad High Court while disposing the petition observed that a Tribunal, under Chapter-II of Act, 2007 cannot direct eviction simpliciter from the property at the instance of senior citizens.
The Court said that the District Magistrate as an appellate authority under the Act, 2007, can ensure that no one should make any hindrance to a senior citizen to enjoy the property as per his ‘need’ and the right to eviction is the last step.
A Single Bench of Justice Shree Prakash Singh passed this order while hearing a petition filed by Krishna Kumar.
By means of the petition, the petitioner has prayed for quashing of the order dated 22-11-2019 passed by the District Magistrate, Sultanpur, while exercising powers under section 16 of the Maintenance and Welfare of Parents and Senior Citizen Act, 2007.
The facts of the case is that on 16-07-1971, the grandfather of the petitioner namely late Ramdhani purchased a part of land having area, 2 Biswa vide sale deed, from Ram Dulare and Shiv Dulare, both sons of Jagrup, in favour of the opposite party no 4 and thereafter, the rest part of the same Gata admeasuring 2 Biswa was purchased by the father of the petitioner on 17-07-1971, out of the income of the Hindu Undivided Family(HUF), in favour of his younger son, who was minor at that period of time and thus, the same was purchased under the guardianship of his father.
After purchase of aforesaid land, the grandfather of the petitioner constructed a house over the said land with the earning of HUF and was living in the same house. In between, the younger brother of opposite party no 4 expired and thus, the property owned by late Om Prakash was divulged to opposite party no 4 and the children of opposite party no 4, in equal shares.
The private opposite parties have three sons and two daughters. The widow of Rajendra Prasad re-married after the death of Rajendra Prasad and is living with her husband,whereas the minor son born out of the wedlock of Rajendra Prasad and Savita Devi is residing with the petitioner.
On 16-08-2018, the petitioner married with Rajpati in a Arya Samaj Mandir who belongs to Scheduled Caste Community and thus the father of the petitioner was annoyed and never accepted the marriage aforesaid. Due to annoyance, an F.I.R was lodged against the petitioner so as to dissolve the marriage, whereafter, the petitioner filed a case, wherein, an interim relief was granted in their favour, though later on, the same was disposed of.
The private-opposite parties filed an application before the Principal Judge, Family Court, Sultanpur under section 125 of Cr.P.C, for grant of maintenance against the petitioner and his brother and the interim maintenance was fixed @ Rs 8,000/-p.m and half of the amount was to be given by the petitioner.
In the house in question, there was a shop which was let out by the father of the petitioner to Sadab & Izhar, on a monthly rent of Rs 26,500/-, but the same was concealed while instituting an application under section 125 of CrPC.
Thereafter, the private opposite parties have also filed an application for maintenance under section 7(1) of the Maintenance and Welfare of Parents and Senior Citizens Act 2007, wherein the Sub Divisional Magistrate passed an order in favour of the private opposite parties though, the same was not challenged by the petitioner and the petitioner is paying the amount of maintenance to his parents on each and every month.
Thereafter, an appeal has been filed before the District Magistrate on 14-12-2017, whereby the petitioner has been directed to evict the house. The private opposite parties vide sale deed dated 14-12- 2017, sold out a part of the property and being aggrieved, the petitioner filed a civil suit to declare him to be co-sharer of 1/6 share in the land in question.
On 13-03-2019, the father of the petitioner, executed gift deed of the property to Sushila and Anjali, who are the daughters of the executor and sisters of the petitioner and the rest of the property was sold out in favour of one Suresh Narotam Das and being aggrieved, another suit was filed by the petitioner along with minor son, for setting aside the gift deed dated 08-02-2019 and the sale deed dated 13-03- 2019.
The petitioner is still residing in one portion of the house, but, the Sub Divisional Magistrate and the Appellate Authority without application of judicial mind and without considering the evidence in a right perspective, passed the impugned order, thereby directing the petitioner to evict the house in question. Thus, the petitioner being aggrieved, has filed the petition.
Contention of the counsel for the petitioner is that admittedly, the present petitioner is son of the private opposite parties and even assuming that the property in question is the property of private opposite parties, the petitioner being son is entitled for 1/6 part of the property and therefore, without considering all these facts, the order for eviction has been passed while exercising power under Act 2007.
He argued that the District Magistrate had exceeded his jurisdiction, while deciding the appeal, thereby passing an order of eviction and dispossession. He emphasized that Section 2(b) of the Act, 2007,which includes provision for food, clothing, residence and medical attendance and treatment, has never been denied by the petitioner to his parents, at any point of time. He next added that the appellate court has also failed to appreciate that the property which is owned by the father of the petitioner is an ancestral property.
“Considering the submissions of the counsel for the parties and after perusal of material placed on record, it emerges that the petitioner and his wife are living in the house of his parents. From the application, which was instituted by the opposite parties no 4 & 5, it is evident that the petitioner used to beat his father and mother, who were of old age and he was also not properly maintaining them. Further this incident is said to happen usually with opposite parties no 4 & 5 and therefore, being aggrieved, they moved an application under section 5 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
Further, the court is of considered opinion that a Tribunal, under Chapter-II of Act, 2007 cannot direct eviction simpliciter from the property at the instance of senior citizens, though the Tribunal can direct the children and relatives to make available a residence to such senior citizens in pursuance of an application, filed under the above said chapter. It further emerges that the District Magistrate as an appellate authority under the Act, 2007, can ensure that no one should make any hindrance to a senior citizen to enjoy the property as per his ‘need’ and the right to eviction is the last step, where such authority finds that the need of a senior citizen is not being fulfilled. The case in hands is that the petitioner is living in one room with his wife and he is not making any hindrance in the peaceful living of the parents, in other part of the house and therefore, so far as the objective of the Act, 2007 is concerned, is no way hampered by the petitioner.
Further the procedure of eviction is not at par to the procedure as prescribed in the Civil Procedure Code, where the rights and titles are determined, as the provisions of Act,2007 is for ensuring the needs of the senior citizens and that is to be handled, carefully, so that the structure of the family may not be abrupted.
In view of the aforesaid submissions and discussions, the order passed by the appellate authority, so far as the eviction of the petitioner is concerned, is not sustainable, in the eyes of law”, the Court observed while disposing the petition.
“Consequently, the order dated 22-11- 2019 passed in Appeal, is hereby quashed.
Liberty is given to opposite party no 5, (mother of the petitioner), to move an appropriate application, if any sort of hindrance is made, in furtherance to the need of her residence.
The petitioner is also directed, not to make any inconvenience in the needful living of the opposite party no 5, in the house in question”, the Court ordered.