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PUNJAB AND HARYANA HIGH COURT
Rajiv Narain Raina, J.
Simrat Randhawa —Petitioner
versus
State of Punjab and Ors. —Respondents
CWP No.4744 of 2018
Decided on 23.01.2020
(A) Maintenance and Welfare of Parents and Senior Citizens Act, 2007 – Section 7 – Punjab Maintenance and Welfare of Parents and Senior Citizens Rules, 2012 – Rule 23 – Eviction by Maintenance Tribunals – Living space and size of accommodation is not an irrelevant factor while adjudging rights of parties under MWPSC Act – A senior citizen and offending party living in separate and spacious dividable units within same large property is also not an irrelevant factor and deserves to be kept in mind while dispensing justice under the Act in facts and circumstances to balance out competing interests till rights are determined conclusively by civil courts where present parties are in contest in district courts at Patiala even before Action Plan saw light of day – Each case has to be decided on its own facts – Provisions of Act cannot be applied mechanically and automatically on complaint of a senior citizen based solely on title leading to summary eviction – If law did not dictate otherwise, then District Magistrate need not pass a speaking order and can simply dispossess defendant on the basis of title of senior citizen by creating a fiat accompli of eviction even before rights are declared in civil proceedings – Restitution of rights after protracted trial is not a fair substitute for present status quo. (Para 17)
(B) Maintenance and Welfare of Parents and Senior Citizens Act, 2007 – Section 7 – Punjab Maintenance and Welfare of Parents and Senior Citizens Rules, 2012 – Rule 23 – Eviction by Maintenance Tribunals – Executive can exercise judicial powers but in a limited way – There is no carte blanche of sweeping powers on executive to enter into purely judicial domain – Power to record confessions cannot be equated with power to evict under MWPSC Act – Object of summary eviction may be laudable for protecting rights of senior citizens in distress at hands of their own flesh and blood but it has to take place in accordance with enactment, rules and by a procedure established by law made by Parliament and to the extent of delegated authority upon State – If a thing is required to be done in a particular manner, it should be done in that manner alone or not at all – Mandate of Parliament in 2007, Act regarding making comprehensive action plans has not been carried out by Punjab Government in letter and spirit of law – State Government is not legislative policy maker for protection of property of senior citizens from its own Assembly but on other hand is only an implementer of enacted policy of Parliament in MWPSC Act – Impugned order/s of eviction passed by District Magistrate-cum Maintenance Tribunal, as well as order in review are invalidated and set aside. (Paras 87, 106, 111 and 119)
Result: Petition allowed.
JUDGMENT
Rajiv Narain Raina, J.—Questions of considerable public importance have been raised in this petition which have the potential to affect a large number of cases arising out of ‘The Maintenance and Welfare of Parents and Senior Citizens Act, 2007’ (for short ‘the MWPSC Act’ or ‘the Act’) in the matter of “eviction” by the Maintenance Tribunals set up under section 7 of the MWPSC Act. The Act provides for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognised under the Constitution and for matters connected therewith or incidental thereto.
2. The validity of the Punjab Action Plan - 2014 is the centre stage of this case to examine whether it can pass judicial scrutiny tested on several grounds raised by the petitioner which are adverted to below and discussed with the help of precedents and a large number of legal principles addressed to determine the issue/s on a larger canvas which is not judicially travelled before past precedents, as Mr. Anupam Gupta puts it, on the question of eviction and dispossession under the Action Plan, the legal validity of which is challenged on the ground of it being manifestly arbitrary and ultra vires the Act itself and the Rules framed there under as they are inconsistent with the scheme, objects and purposes of the MWPSC Act which was to establish only a Maintenance Tribunal to carry out the purposes of the Act in which eviction was not part of the enacted social policy.
3. The mischief sought to be tackled by parliament due to withering of the joint family system gave birth to the MWPSC 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 raised by the petitioner regarding the validity of the Punjab Action Plan, 2014 notified 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.
2. 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.
3. 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 oldage homes in every district.
4. The Bill seeks to achieve the above objectives.”
4. Section 2(b) of the MWPSC Act defines “maintenance” to include provision for food, clothing, residence and medical attendance and treatment. Section 2(f) defines “property” to mean property of any kind, whether
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