IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9th DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.19359 OF 2019 (GM-RES) BETWEEN:
M A PRABHAKAR AGED ABOUT 51 YEARS S/O LATE T M ADHAPPA SETTY RESIDING AT NO.174 MAIN ROAD KEMPEGOWDA NAGAR BANGALORE-560002 (By Mr. VIVEKANANDA T P, ADV.) AND:
1. SMT DHANALAKSHMAMMA AGED ABOUT 70 YEARS W/O LATE T M ADHAPPA SETTY RESIDING AT NO.174 MAIN ROAD KEMPEGOWDA NAGAR BANGALORE-560002 2. THE TRIBUNAL OF MAINTENANCE AND WELFARE OF PARENTS & CITIZENS AND THE ASSISTANT COMMISSIONER BANGALORE NORTH SUB-DIVISION V V TOWER BANGALORE-560001 (By Mr. NANDISH GOWDA, ADV. FOR Mr. MANJUNATHA A, DV. FOR C/R1 SMT.PRATHIMA HONNAPHRA, AGA FOR R2) - - -
… PETITIONER … RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER IN CASE DATED 30.01.2019 PASSED BY THE R-2 AT ANNEXURE-G; AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.Vivekananda T.P., learned counsel for the petitioner.
Mr.Nandish Gowda, learned counsel for Mr.Manjunatha A., learned counsel for the respondent No.1.
Smt.Prathima Honnapura, learned Additional Government Advocate for the respondent No.2.
2. The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.
3. In this petition, the petitioner inter alia has assailed the validity of the order dated 30.01.2019 passed by the respondent No.2 under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as ‘the Act’ for short).
4. Facts giving rise to the filing of the petition briefly stated are that on 06.03.2006, the respondent No.1 executed a gift deed in favour of the petitioner. Admittedly, the provisions of the Act have been made applicable to the State Government w.e.f. 01.04.2008. The respondent No.1 filed an application under Section 23 of the Act, in which the relief of cancellation of the gift deed executed in favour of the petitioner was sought. The respondent No.2, by the impugned order has allowed the application filed by the respondent No.1. In the aforesaid factual background, the petitioner has approached this Court.
5. Learned counsel for the petitioner has raised a contention that the provisions of the Act do not have any retrospective application and therefore, the order passed by the respondent No.2 is per se without jurisdiction.
6. On the other hand, learned counsel for the respondent No.1 has supported the order passed by the respondent No.2.
7. I have considered the submissions made by both the sides and have perused the record. Section 23(1) of the Act reads as under:
“23(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.”
8. From perusal of Section 23(1) of the Act, it is evident that where any senior citizen who transfers the property after commencement of the Act by gift or otherwise, can take recourse to the remedy provided under Section 23 of the Act. In the instant case, admittedly, property in question was transferred in favour of the petitioner on 06.03.2006 i.e. prior to commencement of the Act i.e. 01.04.2008 and therefore, the provisions of Section 23(1) of the Act do not have any retrospective application. Therefore, the impugned order passed by the respondent No.2 is per se without jurisdiction and cannot be sustained in the eye of law. Needless to state that that the petitioner shall be at liberty to file an application against the petitioner under Section 5 of the Act, if so advised. In case such an application is filed, the same shall be dealt with in accordance with law by the respondent No.2.
Accordingly, the petition is disposed of.
Sd/- JUDGE RV