Shanti Bai Jarwal v. Smt. Manju Kunare

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order dated 23.09.2024, passed by S.D.O., Malharganj, District - Indore under Rule 19 of the M.P. Maintenance and Welfare of Parents and Senior Citizen Rules, 2009 (in short „the Rules of 2009"), directing the respondent No.1 to vacate the disputed premises within 30 days"

time.

4] The application under Rule 19 of the Rules of 2009 was filed by the petitioner seeking possession of her house from the respondent No.1 - Manju Kunare, who happens to be her daughter.

5] Counsel for the petitioner has submitted that the appeal preferred before the Additional Collector under Section 16(1) of the Act of 2007 was not competent, as the provision of appeal is available only to the senior citizen or a parent, and not to the other party, and thus, it is submitted that the impugned order is liable to be set aside only on this ground of lack of jurisdiction of the Additional Collector to entertain an appeal preferred under Section 16(1) of the Act of 2007 by the respondent No.1, as the appeal can only be entertained if it is preferred by a senior citizen or a parent. In support of his submission, Shri Abhinav Dhanodkhar, learned counsel for the petitioner has relied upon the decision rendered by the co-ordinate Bench of this Court in the case of Anil Choupda & Ors. Vs. Subhadra Choupda and others in W.P. No.18083 of 2022 dated 18.04.2023. Counsel has also relied upon a decision rendered by the Division Bench of Karnataka High Court at Bengaluru in the case of SRI K. Lokesh Vs. The Bangalore District Maintenance and Welfare of Parents and Senior Citizens & Ors. in Writ Appeal No.254 of 2024 (GM-RES) dated 20.12.2024.

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6] Whereas, counsel for the respondents has relied upon the decision rendered by the High Court of Judicature at Allahabad, Lucknow Bench in the case of Smt. Roopam @ Jyoti Sharma and Anr. Vs. District Magistrate Lucknow and Ors. passed in Writ -C No.-21188 of 2021 dated 18.05.2022. Counsel has also submitted that even the Co-ordinate Bench of this Court in the case of Nitin Jat & Anr. Vs. The State of Madhya Pradesh & Ors. in W.P. No.9078 of 2022 dated 14.07.2023 has held that such an appeal can also be preferred by the persons, other than senior citizen or parents, and it is held that Section 16(1) of the Act of 2007 must be read to provide for a right of appeal to any of the affected parties as there is no negative provision in the Act, denying the right of appeal to the parties, other than the parents and senior citizens. Counsel has also referred to a Bill proposed "The Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2019" to be introduced in the parliament, which has proposed the amendment in Section16 to the effect that:-

"14. In Section 16 of the Principal Act,-

(i) in sub-section (1),-

(a) in the opening portion, after the words "senior citizen or a parent", the words "or any of the children or relatives" shall be inserted;

(b) in the first proviso, after the word "parent", the words "senior citizen" shall be inserted;

(ii) in sub-section (6), after the words "receipt of an appeal", the words "an in exceptional circumstances and for reasons to be recorded in writing, within a further period of thirty days" shall be inserted."

7] In rebuttal, counsel for the petitioner has also submitted that the same Co-ordinate Bench of this Court, which passed the order in the case of Nitin Jat (supra), has taken a contrary view in the case of

Smt. Anuradha Pathak Vs. Smt. Anshumali Pathak and others in

W.P. No.7917 of 2020 dated 23.01.2025, holding that appeal is

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provided only to senior citizens and parents, and not to a dependent against whom senior citizen files a case under the provisions of the Act of 2007.

8] Heard counsel for the parties and perused the record.

9] Whereas the Single Bench of the Bombay High Court in the case of Riddhi and another Vs. Pratibha and others reported as

2024 SCC OnLine Bom 1690 has also referred to the Division Bench judgement of the Bombay High court passed in W.P. No.36 of 2023 in the case of Jagdish Pitamber Pawar Vs. Pitamber Pundalik Pawar

in which case also exactly the same question of law had arisen, and the Division Bench of the Bombay High Court while relying upon the decision rendered by the Punjab & Haryana High Court in the case of

Paramjeet Kumar Saroya Vs. The Union of India reported as AIR 2014 P&H 121 has held that the appeal would be available under Section 16 of the Act of 2007 to any of the children or relative and in the definition of relative, the daughter-in-law is also included. The relevant paras in the case of Ridhi and another (supra) read as under:-

"10. The Division Bench of this Court in Writ Petition No. 36 of 2023 (Jagdish Pitamber Pawar v. Pitamber Pundalik Pawar) was required to answer following question:

"Whether an appeal under Section 16 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is maintainable only at the instance of any senior citizen or a parent or it is maintainable at the instance of any aggrieved person?"

The Division Bench has referred to Paramjit Kumar Saroya's case and had shown agreement with view taken by Punjab and Haryana High Court, in following terms:

"Once it is noticed that there was no debate in the Parliament while passing the bill touching this very aspect qua Section 16(1) and when it is noticed that though there was a discussion in the Parliament on the other provisions of the Act but which did not reflect

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anything in respect of Section 16, we are in respectful agreement with the observations (supra) in the matter of Paramjit Kumar Saroya. There is nothing to demonstrate that the provision of Section 16 was drafted designedly to provide the right of appeal only to a senior citizen or a parent, it is a clear case of casus omissus which can be supplanted by resorting to purposive interpretation, to avoid the anomalous situation. We, therefore, respectfully agree with the reasoning in the matter of Paramjit Kumar Saroya (supra)."

The Division Bench has then considered the expression "senior citizen or a parent or any of the children or relatives" used in sub- section (1) of Section 16 and answered the question in following terms:

"To conclude, we answer the point to the effect that an appeal under Section 16 of the Act would be maintainable even at the instance of any of the children or relatives."

11. Thus, the Division Bench has held that Appeal under Section 16 of the Act of 2007 would be maintainable even at the instance of any of the children or relatives.

12. The question that now requires answer is whether the term

"relative" as defined under the Act of 2007 would include persons like daughter-in-law. In Paramjit Kumar Saroya's case, Punjab and Haryana High Court has held that right of appeal is available to any affected parties. This principle has been accepted by the Division Bench of this Court. In that sense, the affected party or aggrieved party means the party which suffers an adverse order or which is dissatisfied by the order.

13. In my view, if the law laid down in Paramjit Kumar Saroya and Jagdish's case is to be understood and applied, the anomaly as reflects in Section 16 could only be addressed by applying principles of purposive interpretation and casus omissus. Therefore, the term

"relative" will have to be considered in inclusive sense, and thus to include in its ambit the daughter-in-law. In other words, the daughter- in-law will fall within the definition of the term "relative" and will be entitled to prefer appeal in terms of Section 16 of the Act of 2007."

10] In such circumstances, looking to the divergent views expressed by the Co-ordinate Benches of this Court in the cases of

Smt. Anuradha Pathak, Nitin Jat & Anr. and Anil Choupda & Ors. (supra), I am of the considered opinion that it is necessary to have a consistent view so that the legal position becomes clearer.

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Thus, this Court finds it expedient to refer the following question of law to a Larger Bench :-

"Whether an appeal under Section 16 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is maintainable only at the instance of any senior citizen or a parent or it is maintainable at the instance of any aggrieved person?"

11] Accordingly, the Registry is directed to place the matter before the Hon"ble Chief Justice for formation of Larger Bench.

(SUBODH ABHYANKAR)

JUDGE

Pankaj