Delhi High Court: Prathiba M. Singh, J., held that:
The senior citizen can approach the Deputy Commissioner/DM for eviction from any property over which he/she enjoys rights and such order will be appealable to the Divisional Commissioner.
Petitioner who is the wife of respondent 4 and daughter-in-law of respondent 3 filed the present petition against the order of the District Magistrate.
Petitioner was evicted from the suit in the said order and said order was passed by the District Magistrate while exercising powers under Rule 22(3)(1) of the Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009.
Petitioner’s counsel submitted that the writ petition was ought to be entertained as an appeal under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 which can only be filed by a senior citizen.
Further, it was added that there appears to be some confusion as to which orders are appealable, to which forum and by whom. It is necessary to set out the provisions which are applicable separately qua maintenance and eviction proceedings.
The maintenance proceedings for the welfare of parents and senior citizens are concerned under Section 2(j), the said Act provides that the ‘Tribunal’ would be the forum for exercising the first jurisdiction.
‘Tribunal’ is defined under Section 2(j) as the ‘Maintenance Tribunal’ constituted under Section 7.
Hence, the Maintenance Tribunal under Section 7 of the Act would be the ADM or the SDM of the concerned sub-division.
Further, it was added that, filing of appeals qua maintenance-related matters are governed by Section 15 of the Act.
Bench while referring to the decisions of Naveen Kumar v. GNCTD, WP (C) No. 1337 of 2020, decided on 05-02-2020; Amit Kumar v. Kiran Sharma, WP (C) No. 106 of 2021, decided on 06-01-2021 and Shumir Oliver v. GNCTD, WP (C) No. 2857 of 2021, decided on 03-03-2021, held that any ‘affected person’ can prefer the appeal and not just a senior citizen or parent.
Procedure in respect to maintenance would be to first approach the concerned ADM/SDM concerned and thereafter, the Appellate Tribunal which is presided over by the Deputy Commissioner of the District concerned.
With respect to eviction proceedings, the same are governed by the Delhi Maintenance and Welfare of Parents and Senior Citizens (Amendment) Rules, 2016.
Hence as per The Delhi Maintenance and Welfare of Parents and Senior Citizens Rules (Amendment) Rules, 2016, a senior citizen can approach the Deputy Commissioner seeking eviction of the son, daughter or any other legal heir from his ‘self-acquired property’ on account of his non-maintenance and ill-treatment.
With regard to eviction, the first forum would be the Deputy Commissioner/District Magistrate, therefore, a challenge to the order of Deputy Commissioner would lie before the Divisional Commissioner.
Act and the various Rules and Notifications thereto are not readily available to litigants, as also lawyers, in the form of a separate publication. This may be one of the causes for confusion in filing multiple writ petitions directly against the first order of the tribunal or, in the case of eviction, from the order of the Deputy Commissioner/DM.
High Court also added to its observations that, the appellate forum and the limitation period is not within the knowledge of litigants and sometimes even lawyers, it is directed that the following two sentences be added at the end of every order passed by the initial forum i.e. the Tribunal under Section 7 of the Act or, in eviction cases, the Deputy Commissioner under Rule 23(3) of the Rules.
For maintenance cases:
“The present order would be appealable, under Section 16 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 read with Rule 16 of The Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009, to the Appellate Tribunal, presided over by the Deputy Commissioner of the concerned District. The period of limitation for filing of appeal is 60 days.”
For eviction cases:
“The present order would be appealable under Rule 22(3)(4) of The Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009, as amended on 19th December, 2016 before the Divisional Commissioner, Delhi. The period of limitation for filing of appeal is 60 days.”
While parting with the present decision, High Court held that the present order be communicated to all the Maintenance Tribunals and Appellate Tribunals, as also the concerned Presiding Officers who are exercising powers under the Rules.
“…order be also sent to the worthy Registrar General for placing a copy at the filing counter so that whenever writ petitions are filed against original orders, the Registry can also inform lawyers of the availability of the alternate remedy, in case they wish to avail of the same.”
Impugned Order be appealable to the Divisional Commissioner under Rule 22(3)(4).
The petition was accordingly permitted to be withdrawn with liberty to the petitioner to approach the Divisional Commissioner.[Rakhi Sharma v. State, 2021 SCC OnLine Del 1327, decided on 05-03-2021]