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2023 Supreme(P&H) 2908
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
VIKAS BAHL, J.
Surinder Kumar Sharma – Petitioner
Versus
State of Punjab & Ors. – Respondents
CWP NO. 14623 of 2023
Decided On : 25-07-2023
Mr. H.S.Dhindsa, Advocate; For the Petitioner
Mr.Rohit Bansal, Sr.DAG, Punjab for Respondents no.1 to 3.
Mr.Gurminder Singh, Senior Advocate with MS.Harpriya Khaneka, Advocate for LRs of respondent no.4.
Headnote:(A) Constitution of India - Articles 226 and 227 - Maintenance and Welfare of Parents and Senior Citizens Act, 2007 - Sections 4, 5, 9 - Writ petition challenging orders regarding the cancellation of a transfer deed and maintainability of an appeal - The court ruled that an appeal may be maintainable on behalf of any affected party, overriding the previous findings. (Para 5)
(B) Legal Standing of Appeal - The appeal is maintainable despite the death of the senior citizen as rights under the statute are personal, and the original authority had acted beyond mandate. Grounds for dismissal raised by respondents were not sufficient to reject the appeal outright. (Para 3)
Facts of the case:
The petitioner challenged the decision allowing a transfer deed's cancellation made by a senior citizen who later passed away. Respondents argued for dismissal based on death and delay. (Para 3)
Findings of Court:
The Court determined that the previous ruling stating the appeal was unmaintainable contradicted established legal precedent; hence, the appeal was to be reconsidered. (Para 5)
Issues: The main issues were the appeal's maintainability post the senior citizen's death and the grounds for dismissing the appeal raised by respondents.
Ratio Decidendi: The court emphasized the right of any affected party to appeal, rejecting the notion that the death of the senior citizen extinguished the right to appeal, steering the matter back for reconsideration by the appellate tribunal. (Para 5)
Result: The appeal is partly allowed and the order dated 21.02.2023 set aside, directing the appellate Tribunal to rehear the matter.
| Table of Content |
|---|
| 1. writ petition to set aside previous orders. (Para 1) |
| 2. court's observations on appeal maintainability and remanding. (Para 2 , 5 , 6) |
| 3. arguments against maintaining the appeal post senior citizen's death. (Para 3) |
| 4. petitioner argues for the survival of the appeal. (Para 4) |
JUDGMENT
Vikas Bahl, J. (Oral)
This is a civil writ petition filed under Articles 226/227 of the Constitution of India for issuance of a writ especially in the nature of certiorari for setting aside the order dated 17.03.2022 (Annexure P-4) passed by respondent no.3 along with the order dated 21.02.2023 (Annexure P-7) passed by respondent no.2 vide which the application (Annexure P-3) filed by Baldev Krishan for declaring the transfer deed dated 21.04.2016 as null and void, has been allowed and the appeal filed by the petitioner has been dismissed.
2. On 13.07.2023, this Court was pleased to pass the following order:-
"Inter alia, contends that the appeal filed by the petitioner has been dismissed primarily on the ground that the said appeal is not maintainable on behalf of the petitioner as he is not a senior citizen/parent. It is further contended that as per the judgment of the Division Bench of this Court in "Paramjit Kumar Saroya v. Union of India and another, reported as 2016(3) RCR 146, an appeal would be maintainable on behalf any effected party.
Notice of motion for 20.07.2023.
On the asking of the Court, MS. Palika Monga, DAG, Haryana, appears & accepts notice on behalf of respondents No.1 to 3 and seeks time to file reply.
Liberty is granted to the petitioner to serve the LRs of respondent No.4 through dasti process as well.
To be taken up at 1.45 PM.
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| (Vikas Bahl) |
| July 13, 2023 | Judge" |
3. Learned senior counsel appearing for legal representative of respondent no.4 has submitted that although in view of the judgment passed by the Hon'ble Division Bench of this Court in Paramjit Kumar Saroya v. Union of India and another, reported as 2016(3) RCR (Civil) 146, an appeal can be filed by the petitioner before the appellate Tribunal, Fazilka but there are several other grounds, on which, the appeal deserves to be dismissed. It is submitted that in the present case, the senior citizen had filed an application under Sections 23 read with Sections 4 , 5 & 9 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and Rule 2012 seeking cancellation of transfer deed dated 21.04.2016 and vide order dated 17.03.2022, the said application was allowed and the transfer deed was ordered to be cancelled and thereafter the senior citizen had died on 08.06.2022 after executing a Will in favour of Anoop Lata, who has been impleaded as respondent no.4(i) in the present writ petition. It is further submitted that the right conferred by the statute is a personal right given to a senior citizen and once the senior citizen has died, the authority becomes functus officio and thus, the appeal deserves to be rejected on the said ground alone. It is stated that the property by virtue of the Will has been transferred to the daughter of the deceased and on the said ground also, the appeal deserves to be dismissed. It is further stated that the impugned order was passed on 17.03.2022 whereas the appeal has been instituted on 04.10.2022 after much delay and that the said appeal deserves to be dismissed on the said ground of delay and latches as well. It is submitted that the petitioner was proceeded against ex-parte and instead of filing an application for setting aside the ex-parte order, an appeal has been filed and on the said ground also, the appeal is not maintainable. It is further submitted that even in case the matter is remanded in view of the Paramjit Kumar Saroya's case (supra), all the said pleas be kept open for consideration of the appellate Tribunal.
4. Learned counsel for the petitioner has submitted that the appeal before the appellate Tribunal would survive even after the death of the senior citizen and that he also be gra
