VERDICTUM.
IN
2025:BHC-GOA:919 (35) WP 219.2025
Sonam
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 219 OF 2025
Mr. Santosh Savlaram Morajkar,
Son of late Shri. Savlaram Morajkar,
Major in age, married, in service,
Indian National, and
R/o Volvonem, Tivim,
Near Maruti Temple,
Tivim, Bardez, Goa. … Petitioner
Versus
1. Mrs. Sumitra Savlaram Moraskar,
W/o late Shri. Savlaram Moraskar,
Major in age, Widow, Indian National and
R/at Bamanwaddo, Cuchelim,
Near Cuchelim Zor, Mapusa, Bardez,
Goa.
2. Mr. Nandakishore Savlaram Moraskar,
S/o late Shri. Savlaram Moraskar,
Major in age, married, retired,
Indian National and
R/at Bamanvaddo, Cuchelim,
Near Cuchelim Zor, Mapusa,
Bardez, Goa. …Respondents
Mr. Deepak Gaonkar, Advocate for the Petitioner.
Mr. Sahil Sardesai, Advocate for Respondents.
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CORAM : VALMIKI MENEZES, J.
DATED : 9TH JUNE, 2025.
ORAL JUDGMENT:
1. Heard learned Advocates for the parties.
2. Rule. Rule is made returnable forthwith; at the request of
and with the consent of learned Advocates for the parties, the
matter is finally heard and disposed of. Learned Advocate Mr.
Sahil Sardesai appointed under the Legal Aid Scheme waives
service for Respondents.
3. This petition takes exception to the Judgment and Order
dated 12.10.2023, wherein the Maintenance Tribunal (Deputy
Collector) under Section 5 of the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 (“The Act”), had
directed the Petitioner, who is the son of the Respondent No.1
to pay a monthly maintenance of Rs. 10,000/- (Rupees Ten
Thousand only) to his mother (Respondent No.1). During the
pendency of this petition, the Petitioner has deposited the
arrears of Rs.1,30,000/-(Rupees One Lakh Thirty Thousand
only) before the Registry of this Court, which was released
under order of this Court dated 03.07.2024 in favour of the
Respondent No.1. By order dated 03.07.2024, this Court had
directed the Petitioner to continue payment of the maintenance
amount at the rate of Rs. 10,000/- (Rupees Ten Thousand only)
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per month, last of which was deposited on 06.03.2025. In total,
the Petitioner has deposited an amount of Rs. 1,30,000/-
(Rupees One Lakh Thirty Thousand only).
4. The main contention of the Petitioner is that the Tribunal
has passed the impugned order without holding any inquiry
contemplated under Sub Section 4 of Section 6 of the Act and
there is no reasoning whatsoever in the order to sustain the
direction to the Petitioner to pay to Respondent No.1, the
aforesaid amount of Rs. 10,000/- (Rupees Ten Thousand only)
per month. It is further submitted that the procedure laid down
in the Act and the Rules framed thereunder by the State
Government have also not been followed.
5. I have perused the impugned order and gone through the
records of the proceedings.
6. Proceedings under the Act are commenced by an
application under Section 5, by which the Senior Citizen or as
in this case, a parent files an application seeking maintenance
against his/her children. The application may be filed under
Sub Section 5 of Section 5 of the Act for maintenance against
one or more persons. Proviso to Sub Section 5 permits that such
children against whom the application is filed, may seek
impleadment of other persons liable to maintain a parent in the
application for maintenance. It is a matter of record which is
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not in dispute that Respondent No.1 is the mother of four
children of which the Petitioner is one son and Respondent
No.2 is her other son. She has three other daughters namely (1)
Laxmi Ankush Arlekar, (2) Pratima Gokuldas Arlekar and (3)
Ramini Ramdas Kavlekar who have not been impleaded in the
proceedings. The records of the Tribunal also do not disclose
what was the inquiry conducted and why the Tribunal has not
impleaded all children of the Applicant, who would be
responsible to maintain the Applicant/Respondent No.1 herein.
7. Sub Section 3 of Section 6, which provides for the
procedure and the jurisdiction vested in the Tribunal to inquire
into the application, empowers the Tribunal to exercise all
powers of a Judicial Magistrate First Class to secure the
attendance of the children of the Applicant. In the present case,
it appears from the records that the Tribunal has not impleaded
the three daughters to the proceedings.
8. Sub Section 4 of Section 6 requires that all evidence to
such proceedings be taken in the presence of the children or the
persons, who are by law required to maintain the Applicant.
Here again, in the present proceedings, it appears that no
evidence or any inquiry was conducted by the Tribunal in the
presence of the children, three of the daughters having not even
having been summoned. There appears to have been a complete
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go by given to the procedures laid down under Sections 5 and
6 of the Act.
9. Perusal of the impugned order reveals that no reference
has been made on the conduct of the inquiry or to ascertain the
liability of each of the children to maintain the Applicant, and
on what basis the Tribunal concluded that the maintenance
required to be paid by the Applicant was quantified at
Rs.10,000/- (Rupees Ten Thousand only) or for that matter,
how the Tribunal concluded the apportionment of such
maintenance amount amongst the children of the Applicant.
These are not empty formalities, but are issues to be dealt with
by the Tribunal under Section 6 of the Act, which Tribunal has
totally failed to follow.
10. In terms of Section 32 of the Act read with Section 8
thereof, the Government of Goa has framed the Goa
Maintenance and Welfare of Parents Senior Citizen Rules,
2009, (herein after referred to as Rules). Rule 4 provides for
procedure for filing an application for maintenance. Rule 9
provides for impleadment of other children of the Applicant,
which can be exercised either at the behest of the opposite party
or by the Tribunal Suo Moto. Rule 10 provides for reference of
such application to the Conciliation Officer. Under Rule 10, it
is the duty of the Tribunal to seek the opinion of the parties
before it, as to whether they desire the matter to be referred to
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the Conciliation Officer, and if they express their willingness,
he shall refer the matter to the Conciliation Officer for
attempting to work out a settlement.
Sub Section 6 of Section 6 enjoins the Tribunal, before
hearing any application under Section 5 to refer the application
to the Conciliation Officer, the Conciliation Officer being
defined under the explanation to Section 6. The Tribunal may
refer the matter to the Conciliation Officer specifically
appointed for that purpose in terms of Sub Section 1 of Section
5 of the Act or to the Maintenance Officer designated by the
State Government under Sub Section 1 of Section 18 or on its
own motion, refer the matter to the Conciliator to be appointed
by the Tribunal.
11. The record does not disclose any such attempt on the part
of the Tribunal to facilitate conciliation among the parties
before passing of the impugned order. There appears to have
been a complete go by given to the procedures laid down under
Sections 5 and 6 of the Act read with provisions of Rules which
are referred above. The impugned order, as noted by me in the
preceding paragraphs, is devoid of any reasoning recorded
therein, nor does it state how it has arrived at the conclusion
that it was only the Petitioner, who was responsible to pay the
entire maintenance; the Petitioner is one of the four children
who is responsible or as to how it has arrived at the quantum of
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maintenance. On this count alone, the impugned order would
have to be set aside.
12. There is yet another aspect of the matter, which if
considered would require the impugned order to be set aside.
The Petitioner has filed an application dated 06.04.2023 stating
he be permitted to engage the services of an Advocate. The
application itself refers a Judgment of the Kerala High Court in
Adv. K.G. Suresh v. The Union of India, 2021 SCC OnLine
Ker 1686, which was decided on 30.03.2021 declaring the
provisions of Section 17 of the Act to be ultra vires Section 30
of the Advocates Act, 1961. By this application, the Petitioner
had contended before the Tribunal that since Section 17 had
been struck down by the said Judgment of the Kerala High
Court, an Advocate would be entitled to represent the Petitioner
in his cause before the Tribunal. By an order of 06.04.2023
which is also impugned herein, the Tribunal held that Section
17 of the Act imposes a bar on parties being represented by an
Advocate and accordingly dismissed the application.
13. In this context, I would refer to the Judgment of Adv. K.G.
Suresh (supra) of the Kerala High Court where a specific
declaration was sought that the provisions of Section 17 of the
Act are ultra vires the provisions of Section 30 of the Advocates
Act, 1961. Section 17 of the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 provides that
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Notwithstanding anything contained in any other law, no party
to a proceeding before a Tribunal or Appellate Tribunal, under
this Act, shall be represented by a legal practitioner. Section 30
of the Advocates Act, 1961 was notified on 15.06.2011,
bringing the same into force with immediate effect from that
date.
Section 30 of the Advocates Act confers the right on every
Advocate Enrolled with the State Bar Council, to practice
before any Court, including the Supreme Court, any Tribunal
or person legally authorized to take evidence. The provision
also confers the right to legal practice before any other
Authority or person before whom such Advocate is by or under
any law for the time being in force entitled to practice. The
Kerala High Court considered that the provisions of Section 30
were brought into effect on 15.06.2011, after the Maintenance
Act came into force, and consequently held that it would have
the effect of rendering Section 17 of the Maintenance Act to be
ultra vires or contrary to the rights conferred on an Advocate to
practice before a Tribunal, as conferred by Section 30 of the
Advocates Act.
14. For ready reference, the following paragraphs of Adv. K.
G. Suresh (supra) are quoted below:
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“49. As rightly contended by the learned counsel for
the Bar Council of India, Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 came into force
on 24.09.2008 in the State of Kerala, whereas,
Section 30 of the Advocates Act, 1961 has been
notified on 15.06.2011. Therefore, the latter
enactment has an overriding effect on Section 17 of
the 2007 Act. When the Central Government, in
exercise of the powers conferred under sub-section
(3) of Section 1 of the Advocates Act, 1961, have
appointed 15th June, 2011, as the date on which
Section 30 of the said Act shall come into force, the
same has to be given full effect from that date
onwards.
….
57. As Section 30 of the Advocates Act, 1961 has been
brought into force from 15.06.2011, Advocates
enrolled under the said Act have been conferred with
an absolute right thereof, to practice before all the
Courts and Tribunals. By virtue of Section 30 of the
Advocates Act, 1961, coming into force from
15.06.2011, the restriction imposed is taken away and
in such circumstances, Article 19 of the Constitution
of India, which guarantees the freedom to practice
any profession, enables the Advocates to appear
before all the Courts and the Tribunals, subject to
Section 34 of the Advocates Act, 1961.
58. In the light of the above discussion and decisions,
Section 17 of the Maintenance and Welfare of Parents
and Senior Citizens Act, 2007, is declared as ultra
vires of Section 30 of the Advocates Act, 1961 and
thus, the petitioner is entitled for a declaration that
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he has a right to represent the parties before the
Tribunal/Appellate Tribunal/Court, constituted under
Act 56 of 2007. Accordingly, this writ petition is
allowed.”
15. Subsequent to the Judgment of K.G. Suresh (supra) the
Delhi High Court in Taruna Saxena v. Union of India & Ors.,
reported in 2021 SCC OnLine Del 2600, has taken a similar
view followed by the Karnataka High Court in K. Srinivas
Ganiga v. Union of India & Ors., Writ Petition No. 1912 of
2023 (GM-RES), which has also declared the provisions of
Section 17 of the Maintenance Act to be ultra vires Section 30
of the Advocates Act, 1961.
In Kusum Ingots and Alloys Limited v. Union of India
and Anr., reported in (2004) 6 SCC 254, the Supreme Court has
considered the effect of a Judgment of a High Court declaring
a central legislation to be ultra vires any enactment or
unconstitutional. The effect of such a declaration by a High
Court holding a provision of a central legislation to be ultra
vires has been considered in the following terms:
“21. A parliamentary legislation when it receives the
assent of the President of India and is published in the
Official Gazette, unless specifically excluded, will
apply to the entire territory of India. If passing of a
legislation gives rise to a cause of action, a writ
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petition questioning the constitutionality thereof can
be filed in any High Court of the country. It is not so
done because a cause of action will arise only when
the provisions of the Act or some of them which were
implemented shall give rise to civil or evil
consequences to the petitioner. A writ court, it is well
settled, would not determine a constitutional question
in a vacuum. 22. The Court must have the requisite
territorial jurisdiction. An order passed on a writ
petition questioning the constitutionality of a
parliamentary Act, whether interim or final keeping
in view the provisions contained in clause (2) of
Article 226 of the Constitution of India, will have
effect throughout the territory of India subject of
course to the applicability of the Act.”
16. The effect, therefore of the Judgments of the Kerala High
Court in K. G. Suresh (supra) would be that Section 17 stands
struck down as being ultra vires Section 30 of the Advocates
Act, 1961 in relation to the entire territory of India, which
includes the State of Goa or any other State. Consequently, the
Maintenance Tribunal ought to have proceeded to hear the
matter, where the application seeking representation through an
Advocate was sought, granting the parties assistance through
legal counsel, instead of rejecting the application by the
impugned order dated 06.04.2023. The order dated 06.04.2023
is therefore contrary to the declared law and is consequently
quashed and set aside. In all cases pending before the
Maintenance Tribunals, where an Advocate puts in an
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appearance for any of the parties, he would have the right of
audience and to plead on behalf of the parties in the cause
before such Tribunal, in terms of Section 30 of the Advocates
Act, 1961. Since the entire matter proceeded in the absence of
representation of the Petitioner through an Advocate, who had
applied for representing the Petitioner through application
dated 06.04.2023, which was rejected, this would vitiate the
final Order and Judgment dated 12.10.2023 impugned herein,
which would have to be set aside also on this ground.
17. Considering all these aspects of the matter, the impugned
order cannot be sustained and is hereby quashed and set aside.
Consequently, Case No.DC/SDO/MAP/Maint-Claim/2020 is
remanded back to the Maintenance Tribunal at Mapusa for
fresh consideration in the light of the observations made above.
The Maintenance Tribunal shall immediately refer the dispute
to the Conciliation Officer, which it may appoint either on its
own motion or may refer the matter to the Maintenance Officer
appointed by the State Government under Section 18 of the Act,
conduct conciliation in the matter and try to arrive with an
amicable solution for the issue. The Conciliation Officer
appointed shall submit its findings to the Tribunal within one
month from the date of reference. This procedure is of course
to be undertaken after including the three daughters, namely (1)
Smt. Laxmi Ankush Arlekar, 2) Smt. Pratima Gokuldas Arlekar
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and 3) Smt. Ramini Ramdas Kavlekar who shall also be
impleaded in the proceedings before conciliation commences.
For convenience, the Petitioner has provided this Court with
the addresses of these parties which are given below:
(1) Smt. Laxmi Ankush Arlekar, Wife of Late Shri
Ankush Arlekar. Address: Shelpem, Duler, Mapusa,
Bardez, Goa
(2) Smt. Pratima Gokuldas Arlekar, Wife of Shri Gokuldas
Arlekar. Address: Naika Wado, Calangute, Bardez,
Goa.
(3) Smt. Ramini Ramdas Kavlekar, Wife of Shri Ramdas
Kavlekar. Address: Indira Nagar, Dhanva,
Tivim, Bardez, Goa.
18. In the event of failure of the Conciliation Proceedings, it
is for the Tribunal to carry out a summary inquiry in terms of
Section 8 of the Act and with Rule 13 Sub Clause (iv) and
thereafter pass its order. While passing this order, considering
that the Petitioner has deposited an amount of Rs. 1,30,000/-
(One Lakh Thirty Thousand only) before the Registry of this
Court till date, the Tribunal shall give due weightage to the
amount deposited and consider this position while passing
orders. The entire procedure, after this matter is remanded back
to the Tribunal, shall be completed within three months from
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today i.e. by 30.09.2025. The parties to appear before the
Tribunal on 16.06.2025 at 3.00 p.m. The parties may be
represented by a legal practitioner or Advocate if they so desire.
An authenticated copy of this order shall be placed before the
Tribunal for necessary action.
19. Until disposal of the Maintenance Application, the
Petitioner has agreed to continue paying a monthly
maintenance of Rs. 3,000/-(Rupees Three Thousand only) into
the account of the Applicant/Respondent No.1 on the 5th of
every month. This amount could also be considered by the
Tribunal while passing of its order.
20. Rule is made absolute in terms of the prayer clause (a),
(b) and (c) of the petition and in terms of observations made
herein above. No costs.
VALMIKI MENEZES, J.
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