Maya Devi W/o Arun Kumar vs Vishweshwar Dayal S/o Manikram

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Raj) 510

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
GANESH RAM MEENA, J.
Maya Devi W/o Arun Kumar – Petitioner
Versus
Vishweshwar Dayal S/o Manikram – Respondent
S.B. Civil Writ Petition Nos. 6709, 10689 of 2012, 8469, 8551 of 2014, 6314, 12912, 14607 of 2016, 12631 of 2017, 2183, 5774, 9559, 17596, 17775, 19212, 21883, 25916 of 2018, 836, 2572, 4060, 7931, 11496, 13011, 13382, 21350, 21890 of 2019, 518, 2619, 12812, 13730, 14495, 15054 of 2020, 4084, 6096, 7361, 7712, 8411, 11941, 13822, 15361 of 2021, 1012, 2742, 6042, 6234, 7469, 7685, 9087, 9423, 11395, 15044, 16020 of 2022
Decided On : 01-05-2023

Advocates:
Advocate Appeared:
For the Petitioners: Yunus Khan, Vijay Kumar Khandelwal, Virendra Dave, Rajveer Singh, P.L. Saini, J.K. Gupta, Satyapal Poshwal, Pramod Kumar Sharma, S.N. Meena, Kuldeep Aswal, Ashok Meena, B.L. Choudhary, Umesh Vyas, Manoj Sharma, Abhishek Pareek, Manish K. Sharma, Asgar Khan, A.K. Sharma, Kumud Singh, Akshat Tyagi, Pushpendra Kumar Panddey, Saurabh Bhandari, P.S. Sirohi, Ravi Shankar Sharma, Rashmi Jain, Ravi Kant Agarwal, R.C. Sharma, Rajat Ranjan, Darshan Shree, Mohd. Umar Farooq, Sunil Kumar Jain, Satish Kumar Khandelwal, Ram Amit Sharma, Ramit Pareek, Dharmendra Jain, Arvind Kumar Arora, Rajesh Kumar Sain, Akanksha Saxena, Abdul Kalam Kham, Amil Ali, Sandeep Sharma, Manu Bhargava, Shashi Kant Saini, Mamraj Jat, Yogesh Kumar Gupta, Gurpreet Singh Sodhi, Govind Sharma, K.K. Mathur, Himanshu Sharma, Anupam Sharma, T.L. Pandey, Ram Rakh Sharma, Pradeep Kumar Sharma, Martand Pratap Singh, Sanjay Yadav, Manoj Kumar Bhardwaj, P.C. Sharma, Santosh Choudhary, Rajesh Kala, Sunil Kumar Jain, Sultan Singh Kuri, Arvind Kumar Bhardwaj, Surya Prakash.
For the Respondents: R.D. Rastogi, Vaibhav Jeswani, Devesh Yadav, C.S. Sinha, Asad Sheikh, Vijendra Yadav, Sunita Mehla, Sanjay Mehla, Prahlad Sharma, Sourabh Jain, Deepak Kothiwal, P.C. Bhandhari, B.B. Pareek, Vikram Singh Shekhwat, Arvind Bhardwaj, J.K. Yogi, Dharmendra Pareek, Arvind Sharma, Ravi Bhojak, Pankaj Sharma, Anil Kumar Garg, Padam Singh Gurjar, Ashish Agarwal, Sanjay Rahar, R.D. Tripathi, Rajneesh Gupta, Abhi Goyal, M.S. Shekhwat, Nishant Sharma, Kailash Choudhary, K.C. Sharma, Ajay Kumar Jain, V.S. Agarwal, Balram Vashistha, S.L. Sharma, Mohd. Akbar, S.K. Tiwari, Amit Dadhich, Anoop Pareek, Kamla Jain, D.S. Naruka, P.S. Naruka, M.S. Gothwal, Karnal Singh, Sandeep Sharma, Mohit Pareek, Arun Sharma, G.S. Rathore, S.S. Hora, Rishikesh Mahrishi, Narendra Mewara, Pushpendra Sharma, Ravi Saini, Sanwar Mal, Suresh Kumar Dhenwal, Govind Choudhary, R.B. Sharma Ganthola, Ajay Gupta, Naveen Dhuwan, Pradeep Bochaliya.

Headnote:
Constitution of India, 1949 - Section 226, 227 - Maintenance and Welfare of Parents and Senior Citizen Act, 2007 - Section 9, 7, 5, 16, 15 - Writ Jurisdiction Against Orders - Appellate Tribunal - Writ petitions have been filed by petitioners non-applicants challenging orders - Maintenance and Welfare of Parents and Senior Citizen Act, 2007 by Maintenance Tribunal constituted - Held, Court would like to add that since by various pronouncements by various Hon'ble Courts it has been held that remedy of an appeal available to all aggrieved persons including children relatives - Hon'ble Courts learned Solicitor General of Court expects from Union of India to take necessary steps for issuing orders circulars or amendments in consonance with observations findings of Hon'ble Courts statement Solicitor General of India in regard to remedy of filing of an appeal to children relatives - Order Accordingly.

ORDER :

1. These batch of writ petitions have been filed by the petitioners/non-applicants under section 227 of the Constitution of India challenging the orders passed under section 9 of ‘The Maintenance and Welfare of Parents and Senior Citizen Act, 2007’ (for short ‘the Act of 2007’) by the Maintenance Tribunal constituted under Section 7 of the Act of 2007 on an application for maintenance filed under section 5 of the Act of 2007.

2. S.B. Civil Writ Petition Nos.17596/2018 and 14495/2020 have been filed by the petitioners against the orders passed by the Appellate Tribunal constituted under Section 15 of the Act of 2007 on filing of appeals under section 16 of the Act of 2007, whereby the Appellate Tribunal dismissed the appeals being not maintainable.

3. For ready reference, the facts of S.B. Civil Writ Petition No. 11941/2021, Maya Devi vs. Vishweshwar Dayal and Another, are being taken into consideration.

In this case, the respondents/ applicants namely; Vishweshwar Dayal and Sampat Devi filed an application under the provisions of the Act of 2007 before the Maintenance Tribunal with the prayer to dispossess the petitioner/non-applicant Maya Devi from their residential house. It was stated by the respondents/applicants in the application that respondent/applicant No. 1- Vishweshwar Dayal is a retired Army person and after his retirement, they constructed a house for their own residence at Village Bhamarwasi (Mohanpura). It was alleged in the application that on 06.02.2021 the petitioner/ non-applicant Maya Devi came with her brother and gave beating to them for which an FIR No. 40/2021 was registered at Police Station Baggad, wherein charge-sheet was submitted against the accused persons. However, both the parties entered into a compromise. Thereafter, petitioner/non-applicant Maya Devi lodged an FIR No. 25/2021 at Police Station Mahila Thana, Jhunjhunu, against the respondents/ applicants. In such circumstances, the petitioner/non-applicant prayed to dispossess the respondents/applicants from the house, to hand over the possession of the house to her and also prayed to restrain the respondents/ applicants from entering in her house.

The Maintenance Tribunal issued notices to the petitioner/ non-applicant, who appeared before the Tribunal and submitted an application for dismissing the application for maintenance filed by the respondents/ applicants stating that the respondents/applicants do not come in the definition of Senior Citizens as their age is below 59 years.

The Maintenance Tribunal after examining the material available on the record, allowed the application filed by the respondents/applicants vide its order dated 22.09.2021 and ordered to dispossess the petitioner/ applicant from their house and directed the SHO, Police Station Baggad, District Jhunjhunu to get vacated the said plot and hand over the possession of the plot to the respondents/applicants.

Aggrieved by the order of the Maintenance Tribunal, the petitioner/non-applicant has preferred instant writ petition under Article 226 of the Constitution of India.

4. In other writ petitions also i.e. S.B. Civil Writ Petitions No. 17596/2018 and 14495/2020, challenge has been made to the orders passed by the Appellate Tribunal in appeal either by the children or the relatives against the order of the Maintenance Tribunal.

5. On 14.03.2023 while these batch of writ petitions came up before the Court for arguments, an issue was raised from the respondents side that the writ petition against the order of Maintenance Tribunal under the provisions of the Act of 2007 is not maintainable for the reason that a statutory remedy of appeal under section 16 of the Act of 2007 is available to the aggrieved person/s including the children and the relatives.

6. Counsels appearing for the petitioners submitted that the provision of section 16 of the Act of 2007 only permits any senior citizen or a parent to file an appeal before the Appellate Tribunal against the order passed by the M