Senior Citizens Act Does Not Contemplate Eviction Of Children, Tribunal Can Only Order Maintenance: Rajasthan High Court

The Rajasthan High Court observed that Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Act, 2007) does not envisage an order of eviction even by the District Magistrate, much less the Tribunal. The court dealt with the question whether pursuant to an application filed under Section 5 of Act, 2007 read with Rajasthan Maintenance of Parents and Senior Citizens Rules, 2010 (Rules, 2010'), can an order of eviction be passed by the Tribunal constituted under the Act of 2007. Justice Dinesh Mehta, while allowing the petition filed by one such child who was directed by the Tribunal to vacate his parents' premises, ruled, "To conclude, while observing that the Act of 2007 does not envisage an order of eviction even by the District Magistrate, much less the Tribunal, this Court unhesitantly holds that order of ouster of the petitioner oppugned in the instant writ petition is dehors the provisions of the Act of 2007; beyond the scope of Rules of 2010 and also out of the powers of the Tribunal." The court observed that small patches or gaps in the law can be filled in with a view to give true meaning to the provisions of a statute. But a hiatus or void supposedly left, consciously or subconsciously, by the framers of law cannot be bolstered or built up by the quasi-judicial authorities or the Tribunals, which are supposed to apply law as it exists or prevails, opined the court. Essentially, the Tribunal decided the subject application and directed the petitioner so also respondent Nos.3 and 4 to pay Rs.3,000/- per month as maintenance to their parents. All the three sons were also directed to hand-over the possession of the subject house to the applicants-parents. Having visited with an order of eviction, the petitioner-non applicant No.2 invoked extraordinary jurisdiction of the High Court under Articles 226 and 227, with a plea that the Tribunal cannot pass an order of eviction. The court opined that Act, 2007 has been brought to ensure welfare and well being of senior citizens while creating provisions for setting up old-age homes and for making the State Government, and District Magistrates and officers subordinate to them responsible for protecting the life and property of the senior citizens. Further, the court also opined that sections 4 and 5 of the Act, 2007 are meant to ensure that the senior citizens or parents be provided with sufficient means to live with dignity. The progenies or persons liable to maintain their parents, can be directed by the Tribunal constituted under the Act of 2007 to pay a sum not exceeding Rs.10,000/- per month to the parents, added the court. On further perusal of sections 4 and 5 of the Act, 2007, the court unravelled that the Tribunal constituted under the Act can only pass an order of maintenance in favour of senior citizens or parents. Neither is there any direct or indirect reference of eviction nor do these provisions contemplate any such order to be passed by the Tribunal, observed the court. The court answered that the order of ejection cannot be passed while taking recourse to sub-rule (2) or (5) of Rule 20 of the Rules, 2010. Rule 20(2)(i) provides that it shall be the duty of the District Magistrate to ensure that life and property of senior citizens of the district are protected and they are able to live with security and dignity. Similarly, sub-rule (5) provides that in case of danger to life or property of a senior citizen, it shall be the duty of the District Magistrate or a duly authorized officer subordinate to him to protect the life and property of such senior citizen. It was noted by the court that the duty prescribed under sub-rule (2) is only to ensure that life and property of the senior citizens are protected. The same cannot be stretched to such an extent that it translates into a power to "scoop out the children" who have been living in shared accommodation out of natural bonding which at some point of time existed, observed the court. The court further ruled that the authority to pass such an eviction order does not vest in the Tribunal, as Rule 20 categorically uses the expression 'District Magistrate'. The court observed that the Tribunal has thus usurped the purported powers under Rule 20, which are otherwise not meant for or available to it. The order of eviction is, therefore, fundamentally void and without jurisdiction, ordered the court. The court, further ordered, "Without prejudice to what has been discussed and held, even as per respondents' own stand petitioner has been living in the subject premises since his birth. The purported transfer within the meaning of section 23 of the Act of 2007 was made prior to the date when the Act of 2007 was made enforceable in Rajasthan (01.08.2008). Therefore, even by virtue of the extended meaning of section 23 of the Act of 2007 the petitioner cannot be called upon to vacate the premises." ...

Senior Citizens Act Does Not Contemplate Eviction Of Children, Tribunal Can Only Order Maintenance: Rajasthan High Court

ANIRUDH VIJAY

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