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WA No. 145 of 2021

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

WA No. 145 of 2021

 Bhisham Lal Banchhor S/o Janak Ram Banchoor, Aged About 78

Years R/o. House No. 632, Mukta Nagar, Maharaja Chowk Durg,
Tahsil And District Durg Chhattisgarh

---- Petitioner

Versus

1. State Of Chhattisgarh, Through - The Secretary, Home

Department, Mantralaya, Mahanadi Bhawan, Atal Nagar, Raipur,
District Raipur Chhattisgarh

2. Collector / District Magistrate, Durg, District Durg Chhattisgarh

3. Superintendent Of Police, Durg, District Durg Chhattisgarh.

4. Rakesh Kumar Shrivastava, S/o Late Ramkrishna Lal Shrivastava,

R/o. C/o. House No. 632, Mukta Nagar, Maharaja Chowk Durg,
Tahsil And District Durg Chhattisgarh

---- Respondent

For Appellant Mr. Praveen Dhurandhar, Advocate

For Respondent /State Mr. Chandresh Shrivastava, Dy. AG

Proceedings through Video Conferencing

DB.: Hon'ble Mr. Prashant Kumar Mishra, Ag. C.J

Hon'ble Mr. Parth Prateem Sahu, J.

Order on Board by Prashant Kumar Mishra, Ag. C.J.

17/6/2021

1. Heard.

2. The seminal issue brought before this Court by way of the

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present writ appeal is whether a landlord, who also happens to

be a senior citizen, can seek eviction of his tenant by resorting

to the provisions contained in the Maintenance and Welfare of

Parents and Senior Citizens Act, 2007 (for short “the Act, 2007”).

3. The brief, undisputed facts, governing the issue, are that by

Annexure P/2, dated 11.1.2020, the appellant/petitioner

entered into a tenancy agreement with respondent No.4 letting

out two shops to him for monthly rent of Rs.7000/- for a period

of 11 months. When the tenant did not vacate the premises

after the period of the agreement i.e. after 11 months, the

appellant moved an application dated 22.1.2021 before the

District Magistrate, Durg under Section 23 of the Act, 2007

seeking eviction of the tenant and arrears of rent. When the

District Magistrate did not initiate any proceedings, a reminder

was filed on 4.2.2021 and immediately thereafter, the writ

petition was preferred before this Court. The learned Single

Judge has dismissed the petition saying that the nature of relief

claimed in the application submitted before the District

Magistrate is not cognizable under the Act, 2007.

4. Referring to the law laid down by the Supreme Court in the

matter of Smt. S. Vanitha Vs. Deputy Commissioner,

Bengaluru Urban District and others, 2020 SCC OnLine SC

1023, Mr. Praveen Dhuradhar, learned counsel for the

appellant/petitioner submits that the proceedings under the

Act, 2007 is maintainable even against third party. When a

senior citizen is harassed by a person other than his family

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members, then also, the provisions of the Act, 2007 would apply

and the District Magistrate should have drawn the proceedings

and passed an order of eviction against respondent No.4.

Learned counsel for the appellant, for the present, seeks a

direction to the District Magistrate to take up the application

and pass necessary orders.

5. Even for making a direction to a particular authority to decide

the proceedings under an Act, it is the duty of the High Court to

examine prima facie as to whether the proceedings are

maintainable or not.

6. The Act, 2007 was enacted for assisting the elderly members of

the family. The 'Introduction' to the Act, 2007 presented

before the Parliament reads thus :

“Ageing has become a major social challenge because of

decline in the joint family system. A large number of elderly
persons, particularly widowed women are not being looked
after their families. They are forced to spend their twilight
years all alone and are exposed to emotional neglect and are
not being provided financial support. To combat this social
challenge there is a need to give more attention to the care
and protection for the older persons. Though there is a
provision in the Code of Criminal Procedure, 1973 under
which parents can claim maintenance from their children but
the procedure is time consuming and expensive. It is desired
that simple, inexpensive and speedy provisions may be made
to claim maintenance by the suffering parents. To cast an
obligation on the persons who inherit the property of their
aged relatives to maintain them and to make provisions for
setting up oldage homes for providing maintenance to the
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indigent older persons and to provide better medical

facilities to the senior citizens and to make provisions for
protection of their life and property the Maintenance and
Welfare of Parents and Senior Citizens Bill was introduced in

the Parliament. “

7. With the above introduction, the Act further speaks about the

'Statement of Objects and Reasons' in the following manner :

“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 a 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 oldage 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:-

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(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 institutionalisation 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.”

8. It is, thus, clearly discernible that the Act, 2007 has been

enacted to provide care and maintenance to the elderly, who

are not properly looked after by their family due to withering of

the joint family system. The primary object of the Act, 2007 is,

therefore, to provide device mechanism for providing special

relief in respect of maintenance from the relatives, who have

inherited the property of their aged relatives.

9. Section 4 of the Act, 2007 makes provision for maintenance of

parents and senior citizens. It says that a senior citizen including

parent, who is unable to maintain himself from his own earning

or out of the property owned by him, shall be entitled to make

an application under Section 5. Sub-Sections (2) (3) and (4) of

Section 4 speak about the obligation of the children to maintain

their parents and the obligation of a relative of a senior citizen

provided he is in possession of the property of such senior

citizen or if he would inherit the property of such senior citizen.

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This provision, therefore, does not provide for a relief against

the third party, who is neither the children nor a relative, who

has inherited or would inherit the property of a senior citizen.

10. In the case before us, the appellant/petitioner himself entered

into a tenancy agreement with respondent No.4, who is neither

his children nor a relative. Respondent No.4 is also not a third

party in the sense the Hon'ble Supreme Court has referred in

the matter of S. Vanitha (Supra) qua Section 23 of the Act,

2007.

11. Section 23 of the Act, 2007 provides that the transfer of

property is to be void in certain circumstances. This provision is

reproduced hereunder for ready reference:

“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 amenities and basic

physical needs to the transferor and such transferee

refuses or fails to provide such amenities and physical

needs, the said transfer of property shall be deemed to

have been made by fraud or coercion or under undue

influence and shall at the option of the transferor be

declared void by the Tribunal.

(2) Where any senior citizen has a right to receive

maintenance out of an estate and such estate or part

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thereof is transferred, the right to receive maintenance

may be enforced against the transferee if the transferee

has notice of the right, or if the transfer is gratuitous; but

not against the transferee for consideration and without

notice of right.

(3) If any senior citizen is incapable of enforcing the

rights under sub-sections (1) and (2), action may be taken

on his behalf by any of the organisation referred to in

Explanation to sub-section (1) of section 5.”

12. The above quoted provisions of Section 23 deals with a situation

where the senior citizen transfers the property by way of gift or

otherwise with a condition that the transferee shall provide the

basic amenities and basic physical needs to the transferor and if

such transferee refuses or fails to provide such amenities and

physical needs, then, in such situation, the said transfer of

property shall be deemed to have been made by fraud or

coercion or under undue influence and can be declared void by

the Tribunal at the option of the transferor. The right to receive

maintenance out of the property, which is transferred by a

senior citizen can be enforced against the transferee. This

provision does not deal with a situation where a tenant is in

possession of the property belonging to a senior citizen, firstly,

because the tenancy is not a transfer of property, therefore, the

tenant is not a transferee and the right to receive maintenance

is not akin to the landlord/senior citizen's right to seek eviction

or arrears of rent.
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13. The right of a landlord to seek eviction is governed under the

Chhattisgarh Rent Control Act, 2011(in short “the Act, 2011').

Schedule 2 of the Act, 2011 provides for a landlord's rights

available under the Act. The proviso to sub-clause (h) of clause

11 of the second schedule confers on the senior citizen a right

to seek eviction after giving one month's notice to the tenant.

This period of notice is 6 months for other class of tenants.

14. Thus, the beneficial provisions for senior citizen has also been

made under the Act, 2011 and it is not a case where the right to

seek eviction would drag on for indefinite period when the

landlord happens to be a senior citizen. When a particular relief

is allowed to a landlord under the Act, 2011, the same right and

relief cannot be read into the provisions of the Act, 2007, which

does not deal with the rights of a landlord qua his tenant only

because the landlord happens to be a senior citizen.

15. If the interpretation put-forth by learned counsel for the

appellant is accepted, then, in every agreement executed by a

senior citizen, be it a business transaction or any other

transaction, an application can be moved by a senior citizen

before the District Magistrate under the Act, 2007, which is not

the object and scope of the provisions under the Act.

16. The rights of a senior citizen against a third party is strictly

controlled under the provisions of Section 23 of the Act, 2007

and once, such provision is not applicable to a transaction, which

does not amount to transfer, a senior citizen landlord has to

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seek eviction under the ordinary law.

17. There is no scope for interference with the order passed by the

learned Single Judge.

18. The writ appeal has no substance, it deserves to be and is

hereby dismissed.

Sd/- Sd/-

( Prashant Kumar Mishra) (Parth Prateem Sahu)

Acting Chief Justice Judge

Shyna
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HEAD NOTE

A Senior Citizen/Landlord's application for eviction of his tenant

is not maintainable under the Maintenance and Welfare of Parents and

Senior Citizens Act, 2007. The same can only be filed under the C.G.

Rent Control Act, 2011.