1. In present petition, which portrays history of avoidable and unfortunate litigation between father and son the petitioner has prayed that:
“10(B) THIS HONOURABLE COURT WOULD BE PLEASED TO allow present Application by issuing a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, a writ of certiorari or any other appropriate writ, order or direction in the nature of certiorari or any other appropriate writ, order and direction quashing and setting aside the orders dated 14/5/2012 passed by the Sub Divisional Magistrate, Keshod, District Junagadh and be pleased to quash and set aside the order dated 20th September 2012 passed by the District Collector, Junagadh, in the interest of justice.
(C) Pending admission hearing and till final disposal of present petition THIS HONOURABLE COURT WOULD BE PLEASED TO stay the execution, implementation and operation of the impugned order dated 14/5/2012 passed by the Sub Divisional Magistrate, Keshod and thereby be pleased to stay the execution, implementation and operation of the impugned order dated 20th September 2012 passed by the District Collector, Junagadh, in the interest of justice and equity and be pleased to restrain the respondents from taking the possession of one room, in which the petitioner is residing.”
2. Before proceeding further, it is necessary to mention that at the time of hearing, learned counsel for the petitioner submitted that the petitioner is ready to handover possession by 31st December 2012. However, learned counsel for petitioner has also made submissions on merits against the orders and contended that the orders are not sustainable and may be set aside.
3. Facts:-
3.1. At the outset it is necessary to mention that the petitioner is son of the respondent father who was compelled to file application before the learned Magistrate.
3.2. The petitioner herein is the original opponent before the first adjudicating authority and the respondent is the original applicant before the first adjudicating authority.
3.3. The relevant facts involved in and giving rise to present petition are that on the ground that the petitioner is not taking proper care and that therefore he needs possession of the part of the premises which are occupied by the petitioner i.e. original opponent, present respondent moved an application under the provisions of the aforesaid Act and prayed for maintenance as well as getting possession of the part of the premises in occupation of the petitioner. The petitioner was impleaded as opponent in an application filed by present respondent under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as the Act). In the said application present respondent prayed, inter alia, that the opponent of the application i.e. present petitioner may be directed to handover possession of part of the premises which is occupied by the opponent i.e. present petitioner.
3.4. The matter was referred for conciliation to the conciliation officer. However, the conciliation proceedings failed and that therefore the first adjudicating authority i.e. the learned Special Judicial Magistrate, Keshod, District: Junagadh proceeded with the hearing of the application.
3.5. Before the first adjudicating authority the respondent herein i.e. the original applicant claimed and contended that the opponent i.e. present petitioner had forcibly snatched away the room in the premises and had started occupying the said room.
3.6. On the other hand, the petitioner i.e. the original opponent contended before the first adjudicating authority that he is earning meager amount by performing pooja and after death of his mother he is residing in the said room since last many years. Present petitioner also contended that the relief prayed for by the applicant i.e. present respondent is not covered under the provisions of Section 23(1) of the Act and that therefore the authority does not have jurisdiction to pass relief/direction as prayed for.
3.7. However, after considering the application and the submissions by the contesting parties, the first adjudicating authority passed order dated 14.05.2012 directing the opponent i.e. present petitioner to handover the possession of the part of the premises which is in his possession to the applicant i.e. present respondent.
3.8. Aggrieved by the said order dated 14.05.2012 the opponent of the application i.e. present petitioner preferred appeal before the Tribunal. The Appellate Authority considered the grievance and under order dated 20th September 2012 rejected the appeal and confirmed the order dated 14.05.2012 passed by the first adjudicating authority.
4. Aggrieved by the said two concurrent orders the petitioner has filed present petition.
5. Submissions:-
5.1. Ms. Mandavia, learned advocate for petitioner has, as mentioned earlier, on one hand submitted that petitioner is ready to handover possession by 31st December 2012, however, on the other hand, she also contended that the impugned orders are without any jurisdiction and the orders are non-speaking orders and any findings as regards the contention raised by the opponent i.e. present petitioner are not recorded.
6. The learned counsel for petitioner has also tried to raise contention on the ground that the premises in question is ancestral property and that therefore the petitioner has right to occupy the premises in question.
6.1. Now, so as to consider and appreciate the submissions by learned counsel for petitioner, more particularly the objection in light of the provision under Section 23 of the Act, it is relevant to take into account the provisions under Section 23 of the Act. Since, the real purport and purpose of said provision can be considered and appreciated in light of the object of the Act and other relevant provisions viz. Sections 2(b), 2(d), 2(f), 4 & 9, it would be appropriate to be taken into consideration the said provisions as well. The provisions read thus:
“Objects and Reasons:
Traditional norms and values of the Indian society laid stress on providing care for the elderly. However, due to withering of the joint family system, a large number of elderly are not being looked after by their family. Consequently, many older persons, particularly widowed women are now forced to spend their twilight years all alone and are exposed to emotional neglect and to lack of physical and financial support. This clearly reveals that ageing has become a major social challenge and there is a need to give mored attention to the care and protection for the older persons. Though the parents can claim maintenance under the Code of Criminal Procedure, 1973, the procedure is both time consuming as well as expensive. Hence, there is a need to have simple, inexpensive and speedy provisions to claim maintenance for parents.
2. The Bill proposes to cast an obligation on the persons who inherit the property of their aged relatives to maintain such aged relatives and also proposes to make provisions for setting up oldage homes for providing maintenance to the indigent older persons.
The Bill further proposes to provide better medical facilities to the senior citizen and provisions for protection of their life and property.
3. The Bill, therefore, proposes to provide for:-
(a) appropriate mechanism to be set-up to provide need-based maintenance to the parents and senior citizens;
(b) providing better medical facilities to senior citizens;
(c) for institutionalisation of a suitable mechanism for protection of life and property of older persons;
(d) setting-up of oldage homes in every district.
4. The Bill seeks to achieve the above objectives.
2(b) “maintenance” includes provision for food, clothing, residence and medical attendance and treatment;
2(d) “parent” means father or mother whether biological, adoptive or step-father or step-mother, as the case may be, whether or not the father or the mother is a senior citizen;
2(f) “property” means property of any kind, whether movable or immovable, ancestral or self-acquired, tangible or intangible and includes rights or interests in such property;
4. Maintenance of parents and senior citizens.-(1) A senior citizen including parent who is unable to maintain himself from his own earning or out of the property owned by him, shall be entitled to make an application under Section 5 in case of-
(i) parent or grand-parent, against one or more of his children not being a minor;
(ii) a childless senior citizen, against such of his relative referred to in clause (g) of section 2.
(2) The obligation of the children or relative as the case may be, to maintain a senior citizen extends to the needs of such citizen so that senior citizen may lead a normal life.
(3) The obligation of the children to maintain his or her parent extends to the needs of such parent either father or mother or both, as the case may be, so that such parent may lead a normal life.
(4) Any person being a relative of a senior citizen and having and having sufficient means shall maintain such senior citizen provided he is in possession of the property of such senior citizen or he would inherit the property of such senior citizen;
Provided that where more than one relatives are entitled to inherit the property of a senior citizen, the maintenance shall be payable by such relative in the proportion in which they would inherit his property.
9. Order for maintenance.- (1) If children or relatives, as the case may be, neglect or refuse to maintain a senior citizen being unable to maintain himself, the Tribunal may, on being satisfied of such neglect or refusal, order such children or relatives to make a monthly allowance at such monthly rate for the maintenance of such senior citizen, as the Tribunal may deem fit and to pay the same to such senior citizen as the Tribunal may, from time to time, direct.
(2) The maximum maintenance allowance which may be ordered by such Tribunal shall be such as may be prescribed by the State Government which shall not exceed ten thousand rupees per month.
23. Transfer of property to be void in certain circumstances.-(1)Where any senior citizen who, after 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.
(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.”
7. On examination of the record it appears that after the application was presented, the statements were recorded in accordance with the provisions contained under the Act. From the statement of original applicant i.e. present respondent recorded by the Authority it emerges that the original applicant is a retired Senior Citizen and receiving Rs.15,000/- towards pension. It also emerges from the record that the applicant has six children who are staying in different towns/cities and are engaged in their own separate business/service. The applicant does not receive any financial assistance or any help from his children. The original applicant also claimed and asserted that the opponent i.e. present petitioner is occupying one room of the house owned by the applicant i.e. present respondent and that though the petitioner stays with him in the same house but does not take any care of his father i.e. present respondent. It also emerges from the record that the respondent had time and again asked the petitioner i.e. original opponent to vacate the premises occupied by the petitioner.
7.1. The statement of present petitioner i.e. original opponent was also recorded who, in his statement, admitted that the premises in question is in ownership of the applicant i.e. present respondent. The petitioner also claimed that for long time his brothers were also staying in the said premises and they all were staying in a joint family. However, with passage of time, other brothers moved out of the premises for reasons of their business/service.
8. On consideration of the impugned orders it emerges that the contentions which are sought to be raised by the learned counsel for the petitioner in present petition were not raised by the petitioner i.e. original opponent in his reply before the first adjudicating authority or even the Appellate Authority. Therefore, the petitioner cannot be allowed to raise fresh/new contention for first time in writ petition and any question of considering the said contention at this stage does not arise.
8.1. The orders in question can be examined in light of the material which was before the authority at the relevant time and in light of the objections which might have been raised before the authority and the material which was not on record before the authority and/or the contentions which were not raised, cannot be taken into account for and while examining order passed by first adjudicating authority.
9. In present case, the orders in question cannot be examined, much less faulted on the contentions which are now sought to be raised but were not raised before the first adjudicating authority.
9.1. The impugned orders cannot be faulted also on the ground that the contentions which were not even raised before the authorities have not been considered by the authority.
10. In view of the fact that there are two concurrent orders against present petitioner, this Court is not inclined to entertain the petition.
10.1. Besides this, in view of the submissions made by learned counsel for petitioner that he is ready to vacate part of the premises in question and handover the possession to present respondent, the other aspects raised by the petitioner in present petition are not required to be examined further.
10.2. However since the learned counsel for the petitioner also claimed that the impugned orders are without any jurisdiction and the orders are non- speaking orders, the Court has examined other aspects as well.
11. On one hand, it is not in dispute in present case that the petitioner holds possession of part of the premises in question and he occupies the said part of the premises. On the other hand, it is not the case of the petitioner that he is tenant of the respondent and/or that he is paying rent to the respondent – father and/or that provisions contained under the Rent Act are applicable. The petitioner has not claimed right of, or protection as statutory tenant.
11.1. The respondent claimed before the authority that the petitioner is occupying and is in possession of his property. Therefore in light of the provision under Section 23 read with Sections 4, 2(b), 2(f) of the Act it cannot be said that the impugned orders are without jurisdiction, more particularly when the petitioner has not claimed that he is statutory tenant.
12. It emerges from the statement of objects and reasons that the Legislature has, by enacting the Act, addressed the need arising from the unfortunate plight which many elderly persons and senior citizens have to suffer on account of declining joint family system and rise of micro families as well as on account of economic compulsion of the family where man and wife have to work full time.
12.1. The Legislature has noted that “…..due to withering of the joint family system a large number of elderly are not being looked after by their family. Consequently many older persons, particularly widowed women are now forced to spend their twilight years all alone and are exposed to emotional neglect and lack of physical and financial support.............and there is need to give more attention to the care and protection of older persons……”.
12.2. While explaining the object behind the enactment of the Act, the Legislature has clarified that, “the Bill proposes to cast an obligation on the persons who inherit the property of their aged relatives to maintain such aged relatives…..” The Legislature has also emphasized in the statement of objects and reasons, that, “The Bill further proposes to provide better medical facilities to the senior citizens and provisions for protection of their life and property…….”
12.3. Therefore, the provisions under the Act, including the provisions under Section 23 of the Act have to be examined and interpreted in light of the object of the Act and so as to advance the object of the Act. The Act aims at providing protection, inter alia, to the life and property of elderly persons and also to provide for better medical facilities and to ensure physical and financial support.
12.4. The term “maintenance” is defined, under Section 2(b) and it includes provision for food, clothing, residence and medical attendance and treatment.
12.5. The Legislature has consciously defined the said term so that the said expression “maintenance” and/or the terms “medicine” or “medical facility” are not understood or interpreted in narrow sense but are given wider scope. The term “maintenance” is defined so as to include not only food, clothing or residence or medicine but also medical treatment as well as attendance.
12.6. Likewise, while defining the term “property” the Legislature has, under Section 2(f), provided that the term “property” means property of “any kind” and that the said term includes “rights or interests in such property”. Therefore, when any issue as regards “maintenance” of parents and/or senior citizen arises it must be construed keeping in focus the object of the Act and intention of the Legislature viz. it aims at providing better medical facilities (including attendance and treatment), protection of their life and property, to protect them from emotional neglect and lack of physical and financial support and to set- up proper mechanism to ensure that the said objects are achieved by simple, inexpensive and speedy system.
12.7. After assigning wider meaning and scope to the terms like “maintenance”, “parent”, “property”, the Act, through Section 4, provides, inter alia, that senior citizen or parent/parents who is unable to maintain himself from “his own earning” or is unable to maintain himself “out of the property owned by him” will be entitled to make an application under Section 5 against one or more of his children (who are not minor) or even against a relative (in case of child- less senior citizen). Section 4 of the Act further prescribes that the obligation of the children or the relative to maintain parent or senior citizen extends to needs of such citizen so that he may lead a normal life. Thus, the right to claim maintenance under the Act is not restricted against biological or adopted children/grand children but it is also extended, in specified cases, against relative/s as well. Moreover, the obligation is not restricted to provide bare minimum maintenance but the Act imposes obligation to provide all “needs of such citizen so that they may live a normal life”, and to also provide food, clothings, residence, medical attendance and treatment. The expression “normal life” carries widest possible meaning & scope and implies at least similar standard and quality of life which he enjoyed earlier.
12.8. When a parent or a senior citizen is not able to maintain himself from his own earning or out of his property, he can make an application under Section 5 of the Act to claim maintenance. While, the term “property” is defined under the Act, the expression or the term “earning” is not defined under the Act. The term “property” includes not only movable, immovable, tangible or intangible property but also includes right or interest in such property.
12.9. Thus, while construing the provisions under the Act, more particularly the provisions under Section 5, Section 9, Section 10, Section 12, Section 20, Section 23 and Section 24, the said provisions are required to be construed and given effect so as to ensure that the children or relative provides maintenance to such senior citizen as contemplated by the Act.
12.10. Sub Section (4) of Section 4 also prescribes that any person who is in “possession” of the property of such senior citizen or any person who would inherit the property of such senior citizen shall maintain such senior citizen.
12.11. The key-word in the provision is “in possession of the property”. Hence, if children or relative who is/are “in possession” of property (as defined under Section 2(f) which includes rights or interests in such property) of a senior citizen or if the children or relative are going to inherit property (rights or interests in such property) then such children or relative are statutorily obliged to maintain the parent/senior citizen and provide for his/their food, clothing, residence, medical attendance and treatment and their needs so that they can lead a normal life.
13. In present case, the petitioner - son of the respondent, is, undisputedly, “in possession” of property of the respondent.
14. It, however, appears that respondent’s children are not taking sufficient care and are not providing proper and sufficient maintenance for the respondent and that therefore so as to maintain himself the respondent needs sufficient earning/income whereby he can maintain himself and provide for his own food, clothing, medical attendance and treatment, etc. Therefore, the respondent asked the petitioner to handover the possession of the part of the premises (property) wherein the petitioner is staying with his wife. However, the petitioner declined to handover the possession of the part of the premises which is in his possession. In view of such conduct and action of the petitioner the respondent was compelled to file the application wherein the authority passed the impugned order. It appears that in his application the respondent requested the authority to take appropriate measures as per Section 23 so as to get the possession of the part of the premises. The petitioner opposed the application and has now challenged the impugned orders on the ground that the same are beyond the scope and purview of Section 23. Emphasis is placed on the expression “transfer of property” in the said provision. It is claimed that the respondent has not transferred the property in his favour and therefore the provision would not be applicable and could not have been invoked.
14.1. However, the petitioner conveniently overlooks the provision under Section 4 of the Act. Sub Section (1) of Section 23 provides, inter alia, that where a senior citizen has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide basic amenities and physical needs to the transferor then the transfer may be declared void if the transferee refuses or fails to provide such amenities. Sub Section (2) of Section 23 provides, inter alia, that where a senior citizen has right to receive maintenance out of an estate which is transferred, the right to receive maintenance may be enforced against the transferee provided that the transfer is not made for “consideration”.
14.2. As mentioned above, it is not in dispute that the petitioner is in possession and occupation of part of the property/premises.
14.3. It is also not in dispute that the petitioner is “in possession of property” without consideration.
14.4. It also does not appear to be in dispute that as an elder son of the respondent the petitioner also would inherit right/interest in the property.
15. The question which, therefore, arises is whether the term “transfer” in Section 23 of the Act should be construed so as to mean only actual transfer of ownership and title or the said expression should be construed, having regard to the object of the Act and the provisions under Section 2(b), 2(d), 2(f), 2(h) and Section 4, so as to also include possession of the property as well.
15.1. It is noticed earlier that Sub Section (4) of Section 4 provides, inter alia, that any person who would inherit the property (which includes right or interest in such property) and is “in possession of property” shall maintain such senior citizen which includes the needs of such senior citizen to lead normal life.
15.2. Having regard to the object of the Act and the intention of the legislature, there is no reason or justification or indication to restrict the meaning and scope of the term “transfer” so as to mean only “actual transfer of title and ownership” and to exclude “possession of property” from the purview of Section 23 and/or from the term “transfer” employed in Section 23 of the Act.
15.3. There is no provision in the Act to suggest or to indicate that the said term carries very narrow, and literal meaning so as to mean only actual transfer of title and ownership and the concept of possession, which is recognized by the Act – particularly under Section 4 of the Act, has to be kept out.
15.4. On overall consideration and having regard to the provision under Sections 2(b), 2(d), 2(f), 4 and the object of the Act, the said term should receive wider meaning so as to include possession/occupation of property, as well. The said concept is already recognised, accepted and internalised by the Act vide Section 4 of the Act.
15.5. It is not in dispute that the property is in name of the respondent and he has the right to receive maintenance i.e. income/earning from the said property.
15.6. In view of the said provisions, the term “transfer of property” should receive wide and liberal construction so as to include an act of allowing possession and/or occupation of premises or part of the premises provided, of course, the possession is not allowed for consideration (including rent).
15.7. Sub Section (2) of Section 23 contemplates a situation where the transferor has right to receive maintenance from such property then such transferor can enforce the right to receive maintenance from the transferee.
15.8. For the purpose of the said provision the transferee would mean person who is allowed possession and/or occupation of the premises/property or part of the premises/property from which the transferor i.e. the owner of the premises/property can, otherwise, receive income/earning i.e. maintenance.
15.9. The provisions under Section 23 of the Act cannot be, and need not be, read in isolation or by divorcing the said provision from other provisions, particularly Section 4 of the Act read with Section 2(b), 2(f), 2(g) & 2(h) of the Act.
16. It emerges from the record that the respondent needs the property to maintain himself since the petitioner, the respondent’s son, does not seem to be taking sufficient and proper care of the respondent. It emerges that the respondent needs to generate earning/income (e.g. rent) from the said part of premises i.e. to receive maintenance from the said part of premises so as to maintain himself. He, therefore, asked the petitioner to handover the possession of the property in view of petitioner’s failure or refusal to properly maintain him. However, the petitioner seems to have declined to handover the possession of the part of the property which compelled the respondent to prefer the application before the authority constituted under the Act. The competent authorities have, after considering the relevant facts, directed the petitioner to handover the possession of the part of the property/premises which is in his possession.
17. In view of the foregoing discussion and the scope and purview of the provisions under Section 23 read with Section 4 of the Act and having regard to the object of the Act, the impugned orders and the direction to handover the possession of the property to the respondent cannot be said to be without jurisdiction or beyond the scope of Section 23 read with Sections 4, 2(b), 2(d) and 2(f) of the Act. The impugned direction, therefore, cannot be faulted.
18. On overall consideration of the matter this Court is not inclined to accept and entertain the petition and to interfere with the order and in light of the stipulations by learned counsel for petitioner, the Court does not consider it necessary to set aside the impugned orders.
19. Time as requested for by learned counsel for the petitioner is granted. It will be open to the petitioner to continue to be in occupation in part of the premises in question until 31.12.2012 and thereafter the petitioner shall vacate the premises in question and handover the possession to the respondent without any delay.
20. With the aforesaid clarification and directions, the petition stands disposed of.
jani (K.M.THAKER, J.)