[Senior Citizens Act] Lawyers Can Represent Parties Before Maintenance Tribunal, Section 17 No Bar: Delhi High Court

Update: 2022-10-04 04:15 GMT

The Delhi High Court has said that Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 will not bar parties from having legal practitioners represent them before the Maintenance Tribunal.

Section 17 of the 2007 Act specifically states no party to a proceeding before a tribunal or appellate tribunal shall be represented by a legal practitioner, notwithstanding anything contained in any law. A batch of petitions filed before the High Court in 2019 challenged the provision, alleging that it was in violation of Section 30 of the Advocates Act which gives advocates the right to practise in courts and tribunals.

A division bench of Justice Vibhu Bakhru and Justice Amit Mahajan in a recent judgement expressed their agreement with a 2014 ruling of Punjab and Haryana High Court wherein it was held that if a tribunal is legally authorised to take evidence, an advocate has a right to practice there.

The court also noted that the Punjab and Haryana High Court in its ruling had requested the Centre to have a relook into the provisions of the 2007 Act in context of Section 30 of the Advocates Act, 1961.

"We are informed that as of yet neither any decision has been taken in that respect nor any appeal has been filed against the judgement passed by Hon'ble Punjab & Haryana High Court," the division bench said in its order dated September 27.

Advocate Pawan Reley, one of the petitioners, had challenged Section 17 of the 2007 Act in 2019 after he was denied entry by the Maintenance Tribunal citing the provision. Reley had been engaged as her counsel by a woman in relation to a complaint filed under the Act before the Maintenance Tribunal.

It was also argued before court that Section 17 of the Maintenance Act was unconstitutional as being violative of Article 19(1)(g) of the Constitution of India.

Besides placing reliance on a judgement passed by the Kerala High Court in 2021 wherein Section 17 was declared as ultra vires to Section 30 of the Advocates Act, the petitioner also relied upon Punjab and Haryana High Court decision of 28.05.2014 to contended that a party cannot be denied legal representation in view of Section 30 of the Advocates Act.

The Centre on the other hand submitted it has not challenged the decisions of the high courts of Kerala or Punjab and Haryana.

The petitioners before the division bench submitted they would be satisfied if a party before the Maintenance Tribunal is permitted to have a legal representation and if such right is permitted, they do not wish to challenge the constitutional vires of Section 17.

Disposing of the pleas, the division bench said:

"We are in agreement with the view taken by the Hon'ble Punjab & Haryana High Court and direct that Section 17 would not come in way of legal representation on behalf of the parties before the Maintenance Tribunal."

The Punjab and Haryana High Court in its 2014 decision held that Section 30 of the Advocates Act, 1961 came into force on 15.06.2011, much after coming into force of the Maintenance Act, 2007. Construing Section 17 [of 2007 Act] and Section 30 [of 1961 Act] harmoniously, the court had said:

"It is no doubt true that Section 17 of the said Act begins with the "notwithstanding" clause. However, while determining the right of representation by a legal practitioner, a complete phrase used is "notwithstanding anything contained in any law". The reference in law can only be a law which is in force. On the date when the said Act came into force on 31.12.2007, Section 30 of the Advocates Act did not exist in the statute book. This is so as the Parliament in its wisdom had given the right to the Executive to notify from which date this provision would be applicable. Thus, Section 30 of the Advocates Act would be "any law" only if it was on the statute book. This provision came on to the statute book only w.e.f. 15.06.2011,"

Title: PAWAN RELEY AND ANR. v. UNION OF INDIA AND ORS. and other connected matters

Citation: 2022 LiveLaw (Del) 928

Click Here To Read Order 


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