Eviction Not Maintianable under #Senior Citizens Act

 EVICTION OF DAUGHTER-IN-LAW NOT MAINTAINABLE UNDER #SENIOR CITIZENS ACT`2007

 

The #Senior Citizens Act these days is being resorted to as an eviction tools by in-laws against the Daughter-in-law who is facing matrimonial trouble with her husband.

The #Senior Citizens Act`2007 was enacted by the Parliament with the intent to  enable the Senior Citizens to seek proper maintenance , to have better medical facilities and institutionalization of a suitable mechanism for protection of life and property of elder persons. But #Senior Citizens Act`2007 was never intended to act as an option for eviction of Daughter-in-law who is facing matrimonial litigation with her husband which I feel is in direct contravention with the other substantial right of the Daughter-in-law.

By this Article, We are trying to resolve the impasse created by the introduction of #eviction rules under #Senior Citizens Act which are infact infringing the #Senior Citizens Act itself.

Section 22 of #Senior Citizens Act empowers the State Government to delegate powers to the District Magistrate for enforcement of the provision of the Act itself and further empowers the State Government to prescribe a comprehensive action plan for providing protection of life and property of senior citizens as per the Act.

The mischief started in the interpretation of the words "comprehensive action plan" which actually were employed by Parliament, the #Senior Citizens Act being a Central enactment, with focus on "life and property" of senior citizens, however , the State Governments misinterpreted  "#eviction", as part of their endeavour to protect the life and property of Senior Citizens.

In the backdrop, it would be condign to point out that the mischief sought to be tackled by parliament due to withering of the joint family system gave birth to the #Senior Citizens Act is contained in the Statement of Objects and Reasons in the Bill. It would be useful to revisit those declarations as the backdrop for the determination of a limited issue regarding the validity of the notification under the Act and rules introducing the concept of eviction for the first time outside the common law. They are reproduced:-

"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 more 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 need to have simple, inexpensive and speedy provisions to claim maintenance for parents.

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 old age homes for providing maintenance to the indigent older persons.

The Bill further proposes to provide better medical facilities to the senior citizens and provisions for protection of their life and property.

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 institutionalization of a suitable mechanism for protection of life and property of older persons.

(d) setting up of old age homes in every district.

The Bill seeks to achieve the above objectives."

The issue has been dealt by Hon`ble Punjab and Haryana High Court in CWP No. 4744/2018 (Decided on 23.01.2020) titled as “Simrat Randhawa vs State of Punjab & Ors.” Whereby the Punjab Action Plan`2014 which is akin to the present Notification thereby amending Section 22(3)(i) & (iv) of Delhi Maintenance and Welfare of Parents and Senior Citizens Rules`2016 (Amended) was under challenge being ultra-vires of the basic Central Act. The Hon`ble Court thereby held Punjab Action Plan as unconstitutional and held that Tribunals are not eviction tribunals and held as under :-

 The Rules framed under #Senior Citizens Act arbitrarily introduces a concept foreign to the scheme in #Senior Citizens Act, that is, "eviction". 

The rules are in contravention of the central Act to the extent of eviction and thus it is beyond the powers delegated by Parliament in the #Senior Citizens Act. The Rules areopen to wide abuse of the process of law in the hands of the executive.

The correct legal position is that power of eviction was not visualized, intended or enacted in the Parent Act by Parliament nor can be entrusted to the Maintenance Tribunal.

 The Act did not authorize the State Government and its officers for executing a summary procedure for eviction to subvert substantive rights, disabilities and obligations under the #Senior Citizens Act.

The Maintenance Tribunal is not an Eviction Tribunal.

Eviction can take place only in accordance with procedure established by law and by reading in the Act.

#Senior Citizens Act does not provide for relief of eviction simpliciter, but at best as a consequential relief under Section 23 of the Act for void transfers.

It appears not to have been the intention of Parliament to create a law on title based eviction under the Act, let alone a summary procedure for eviction and, on the other hand operates where senior citizens have been taken advantage of or exploited by people or family to grab their property with ulterior motives and leave them in lurch in their old age with no succour and redemption available.

Notwithstanding the rules are illegal and arbitrary, the rules doesn’t  lay down any guidelines to control, guide or supervise such extreme harsh and tyrannical quasi judicial powers by the District Magistrate. In that sense it does not qualify as a "comprehensive action plan" in section 22(2) of the Act.

(xi) Protection is for only those defined in "children" [s.2 (a)] or family, who have actionable claims to property and subsisting rights in property of senior citizen duly asserted in a court of law. However, the wide meaning of "property" in section 2 (f) is for purposes of maintenance and section 23 of the Act.

(xii) The wide definition of "property" in section 2 (f) in the MWPSC Act covering both self acquired and ancestral property including rights or interests in such property is for purposes of maintenance and welfare of senior citizens and cannot be imported for eviction through the Punjab Action Plan.; as also for declarations of transfers of property to be rendered void in certain circumstances under section 23of the Act. These aberrations and callousness of children and their neglect of senior citizens for their maintenance and welfare of their physical and emotional needs, the Maintenance Tribunal  as a speedy remedy can alone manage to the exclusion of the civil courts.

(xiii) The argument that aggrieved party has remedy of writ petition under Article 226 and 227 of the Constitution and therefore there is a substantial safeguard against arbitrary, illegal and erroneous orders open to correction in certiorari is rejected. For one, the remedy is discretionary and extraordinary and not plenary of the kind the civil and appellate courts traditionally exercise. The remedy of civil suits under the Code of Civil Procedure, 1908 is more wholesome than the jurisdiction under the writ jurisdiction under the Constitution as it admits recording of evidence in proof of facts. The writ remedy comes into play after eviction, when enforcement of the order is also in the hands of the executive with the police at its command. The Action Plan in eviction is unfair, arbitrary, unreasonable and oppressive as against family member [and not a foreigner to the family unit or rank outsider] and is excessive and therefore unconstitutional. It cannot be used as a tool for eviction and in abuse of the process of the law.

(xiv) The wide import of the issues in the civil suit filed prior to coming into existence of the Action Plan and pending adjudication of civil rights of the petitioner and her children in litigation with the defendants are far too significant to be sacrificed to a sudden termination of  long settled possession leaving them to litigate from the outside and after the event of eviction has been played out. I am of the opinion that Parliament never contemplated such a drastic situation in the MWPSC Act of what the Plan adventures to do and Parliament expressly limited itself to maintenance rights under Chapter II [ss. 4 to 18] and protection of reversing transfers and release deeds under section 23 [Chapter VI], which was a giant leap forward for the welfare of senior citizens against apathy of children inflicting physical and emotional neglect on their parents in old age. That is a pious duty and obligation of every child and grandchild irrespective of caste, creed or religion recognized in the Constitution. The two elements i.e. maintenance rights and voidable transfers of property or are not present in this case nor were pleaded in the complaint that fired the present litigation.

(xv) The Act, the Rules and the Action Plans in the States of Punjab & Haryana [which are cut copy paste] cannot be viewed as a convenient and brutal tool in the hands of executive officers acting as Maintenance Tribunals, who are servants and agents of the State to evict the respondent 'right asserter' only on the specious ground of title and ownership in the applicant without anything more to do with the law.

(xvi) The Punjab Action Plan - 2014 does not have any statutory backing. It is well settled that every executive action must have legislative sanction. It has also not been issued in the name of the Governor or placed in the Assembly at any time till the present.

(xvii) Life is awfully complex and errant laws can often compound it. Each family is faced with its own peculiar situation that cannot be typified in one mould of the law for every family and their elders in the Action Plan to persuade this court to subscribe to the power of eviction in the District Magistrate on a transitory posting in the District. On the other hand the judicial courts are static and available on every working day for the litigating public. A family's own special needs, circumstances and expectations of each other are variables and their station in life, their social standing, their financial position can be vastly different that they cannot be measured on the same scale and with one brush of a heartless Government order in the Action Plan which Parliament did not devise. Parliament ordained a "comprehensive action plan" in section 22 (2) but the Plans are far from being comprehensive in nature. The Action Plan cannot cover all cases based on title alone when rights of spes successionis germinate with conception as per the Hindu law [which are chances of succession] and mature on birth. India has to contend with unique personal laws of  its many people of different religions and faiths. Therefore, each case has to be decided on its own facts and circumstances on the basis of evidence. Had the direction not come in Justice Shanti Swarup Dewan's case in September 2013, I dare say, the Action Plans of Punjab and Haryana may not have been born although it was a statutory duty neglected for years since the MWPSC Act was passed in 2007.

(xviii) Laws of land reform in India [making way to a modern nation free of feudalism was a great leap forward], such as abolition of titles and zimindaries, Land Ceiling, Surplus, granting tenancy rights to downtrodden marginal and toiling siris; the bonded labour and the tillers of land maturing rightfully into title and legal possession of land cultivated by them till the Republic day with the protection of Central and local laws and the peculiar and special principles of Hindu Law unparalleled across the globe etc, all of which have greatly contributed to a new social order impacting the landed aristocracy and 'big landowners' to device ways and means to save their properties from being taken over by the State's eminent domain by effecting dispossession from excess lands to be redistributed to the landless. This has led to complexities in litigation which happens only in India. Only Judges should handle this and not the executive officers of the State empowered under a notified and non-statutory Government order to dispossess a daughter-in- law, like the petitioner, of their lawful rights pressed in the civil courts of justice in accordance with law seeking declarations of status and those based on settled continuous possession-[as explained in Major Harmohinder Singh (supra)].

118. Accordingly, the rights of the parties are left wide open to be determined by the civil courts at Patiala which are requested to expedite the proceedings and conclude the suits as soon as possible by desisting from any unnecessary adjournments in the light of the directions already issued in with the status quo order in respect of the properties of the parties operating. Needless to say, nothing said in this judgment will be read as an expression of opinion on the merits of the cases pending in the trial court.

119. As a result, this petition is allowed and the impugned order/s of eviction dated 14.11.2017 endorsed on 01.01.2018 passed by the District Magistrate-cum Maintenance Tribunal, Patiala as well as the order in review are invalidated and set aside.”

 

Thus, thereby concluding that the EVICTION under #Senior Citizens Act was never intended by the Parliament and was never part of the Scheme but the same concept of Eviction was introduced by the States under the Rules framed by them which is in contradiction with the original intent of the Parliament. To this effect,the Union of India tendered an affidavit to the said effect before the Hon`ble Punjab and Haryana High Court and hence , as per the said concretization, the in-laws ( Senior Citizens) cannot resort to # Senior Citizens Act for eviction of their Daughter-in-law under the garb of protection of life and property. The rules as framed by the GNCT of Delhi thereby permitting eviction under #Senior Citizens Act`2007 are under challenge before Hon`ble High Court of Delhi.

Rajal Rai Dua, Advocate

For DUA`S & DUA`S

ADVOCATES

OFF : ED-16B , PITAMPURA, DELHI-110034

Ph :  011-43014800, 9891914800

E.MAIL : dua.rajal@gmail.com

                                    

·      The Author is the Advocate for the Petitioner who challenged the rules before Hon`ble High Court of Delhi.