ORDER

1. Aggrieved by the order dated 2.8.2022 passed by the learned Single Judge in dismissing the Writ Petition No.11796 of 2022, the petitioners are in appeal. The parties will be referred to as per the rank before the learned Single Judge.

2. The respondent filed a petition under section 22 read with section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short “the Act”) before the Sub Divisional Magistrate, Chhatarpur. It was registered as Case No.98/B-121/2021-22. The application was allowed and in terms whereof the gift deed dated 9.9.2019 executed by the respondent in favour of the writ petitioners was declared to be null and void. Challenging the same, an appeal was filed by the writ petitioners before the Collector, Chhatarpur which was rejected vide order dated 25.4.2022. Questioning the same, the instant writ petition was filed.

3. The learned Single Judge came to the view that section 23 of the Act gives ample authority to the Tribunal to declare transfer of the property as null and void to the circumstances mentioned in Sub-section (1) of section 23. It was also held that the writ petitioners having chosen to remain absent was indicative of the fact that they had no interest in hearing of the case. Hence, on both these grounds the writ petition was dismissed. Questioning the same, the instant appeal is filed.

4. Shri Manoj Sharma, learned senior counsel appearing for the appellants’ counsel contends that the provisions of section 22 r/w section 23 of the Act do not postulate any right to the authority to annul a deed of gift or otherwise. When there is absence of any condition that the transferee shall provide the basic amenities and basic physical needs as stated therein, the exercise of power under section 23 of the Act is beyond the scope of the said section. Therefore, the authority had no authority to pass the said order.

5. The same is disputed by Shri M.L. Jaiswal, learned senior counsel appearing for the counsel representing the respondent. He contends that there is no error committed by the SDM in passing the impugned order. That two days prior to the execution of the gift deed, an affidavit was given by the writ petitioners dated 7.9.2019 to the effect that they will maintain the respondent. It is on that basis that the gift deed was executed. Since the writ petitioners have not maintained the respondent, the authority was justified in passing the order under section 23 of the Act. He further pleads that this is an order passed under Article 227 of the Constitution of India and hence a writ appeal is not maintainable. He relies on the Full Bench judgment of Rajasthan High Court reported in AIR 2022 Rajasthan 7 in the case of Mahendar Kumar Jain v. Appellate Rent Tribunal, Ajmer. Hence, he pleads that the appeal be dismissed.

6. The same is disputed by the learned counsel for the appellants who contends that the power exercised by the Court is not under Article 227 but under Article 226 of the Constitution of India. Since it is an order passed by the SDM, therefore, the exercise of power is under Article 226. Therefore, the very basis of the contention is ill-founded.

7. Heard learned counsels.

8. So far as the maintainability is concerned, we are of the view that the contention of the respondent herein cannot be accepted. It cannot be said that the exercise of the power by the learned Single Judge is under Article 227. It is the order of the SDM that has been challenged and hence the exercise of the power is not under Article 227 but under Article 226. Hence, the contention of maintainability is overruled.

9. Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 reads as follows :

“23. Transfer of property to be void in certain circumstances-(1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenit