In a major relief for lawyers all across the country, the Delhi High Court has just recently on April 16, 2021 in a courageous, cogent, convincing, commendable and composed judgment titled Tarun Saxena vs Union of India & Ors in W.P.(C) 4725/2021 & CM APPLs. 14574-75/2021 has declared as ultra vires Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 which bars lawyers from representing parties in matters before the Maintenance Tribunals. It must be apprised here that this commendable judgment is in line with the judgment that was notably delivered by a
Division Bench of the Kerala High Court in March 2021 stating clearly
that the provision is ultra vires of Section 30 of the Advocates Act, 1961.
In hindsight, it may be recalled that in a groundbreaking judgment which is also a grand victory for advocates,
the Kerala High Court had just recently on March 30, 2021 in a latest, learned, laudable and landmark judgment titled Adv KG Suresh vs The Union of India and 3 others in WP(C)No. 21946 of 2011(S) has declared as unconstitutional the bar on lawyers representing parties in matters before the Maintenance Tribunals constituted under the Maintenance Welfare of Parents and Senior Citizens Act, 2007 (Maintenance Act). It
also rightly held that, “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.” A two Judge Bench of Kerala High Court comprising of Chief Justice S Manikumar and Justice Shaji P Chaly pronounced this pathbreaking judgment thereby allowing a writ petition filed in 2011. This latest, learned, laudable and landmark judgment by the Delhi High Court further endorses this notable judgment of the Kerala High Court. While relying considerably on the aforesaid superb decision of the Kerala High Court, Justice Pratibha M Singh too while endorsing it lock, stock and barrel observed most convincingly that, “Since Section 17 has been declared ultra vires Section 30 of the Advocates Act, 1961, it would obviously mean that an advocate would have the right to represent parties before the Tribunal under the Act. Ordered accordingly.”
To start with, a Single Judge Bench of the Delhi High Court comprising of Justice Pratibha M Singh who has authored this oral judgment and the hearing has been done through video conferencing as pointed in para 1, then while stating the purpose of the petition puts forth in para 2 that, “The present petition has been filed challenging order dated 26th March, 2021 passed by the ADM, Karkardooma Courts under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter, ‘Act’).”
While dwelling on the grievance of the petitioner, the Bench then observes in para 3 that, “The grievance of the Petitioner in this case is two-fold:- (i) that advocates are not being permitted to appear before the Tribunal; and (ii) that evidence is not being permitted to be led before the Tribunal.”
As we see, the Bench then brings out in para 4 that, “Insofar as the first issue is concerned, ld.
Counsel for the Petitioner relies upon the judgment of the Kerala High Court in Adv. K.G. Suresh v. Union of India & Ors. [W.P.(C) No. 21946/2011, decided on 30th March, 2021]. He submits that Section 17 of the Act has been declared to be ultra vires Section 30 of the Advocates Act, 1961.”
Furthermore, the Bench then observes in para 5 that, “Insofar as the second issue is concerned, the submission of ld.
Counsel for the Petitioner is that under Section 8(3) of the Act, the Tribunal has to permit the leading of evidence in support of the parties’ case and a direction in this regard may be passed.”
On the other hand, the Bench then points out in para 6 that, “Mr. Singh, ld. Counsel appearing for the Union of India, submits that under Section 8, the Tribunal follows summary procedure. Discretion is left to the Tribunal to follow the procedure in accordance with law considering the facts and circumstances of each case.”
Going ahead, the Bench then discloses in para 7 that, “Mr. Shukla, ld. Counsel points out that the order under challenge, i.e., order dated 26th March, 2021, wherein the ADM has merely directed the filing of the applications by the parties, was listed today at 02:00 pm.”
Quite aptly, the Bench then enunciates in para 8 that, “Firstly, this Court has perused the judgment of the Kerala High Court. The operative portion of the said
judgment reads as under:-
“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.
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 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.””
As a corollary, the Bench then envisages in para 9 that,
“In view of the above, since Section 17 has been declared ultra vires Section 30 of the Advocates Act, 1961, it would obviously mean that an advocate would have the right to represent parties before the Tribunal under the Act. Ordered accordingly.”
Be it noted, the Bench then enunciates in para 10 that, “Insofar as the second issue is concerned, Section 8 of the Act reads as under:-
“8. Summary procedure in case of inquiry
1. In holding any inquiry under section 5, the Tribunal may, subject to any rules that may be prescribed by the State Government in this behalf, follow such summary procedure as it deems fit.
2. The Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
3. Subject to any rule that may be made in this behalf, the Tribunal may, for the purpose of adjudicating and deciding upon any claim for maintenance, choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist it in holding the
inquiry.”” Of course, the Bench then hastens to add in para 11 that, “A perusal of the above provision shows that firstly, the procedure contemplated under Section 8 is a summary procedure. Secondly, it is an ‘Inquiry’ and not an adjudication which is usually done by the Courts. An ‘Inquiry’ is to be held under Section 5 to determine the amount payable.”
It is worth noting that the Bench then mandates in para 12 that, “Under The Delhi Maintenance and Welfare of Parents and Senior Citizens Rules (Amendment) Rules, 2016, the steps to be taken as part of the Inquiry, include:
• Verification of the title of the property and the facts of the case as stated in the application by the concerned SDM, within 15 days from the receipt of the application.
• Submission of the report by the SDM to the Deputy Commissioner/DM for final orders, within 21 days from the receipt of the application/complaint.
• If, on receipt of the report, the Deputy Commissioner/DM is of the opinion that any child/legal heir of a senior citizen/parents is not maintaining the senior citizen/parents or is ill-treating him/her while continuing to occupy the premises of the senior citizen, show cause notice is to be issued by the DM as to why the child/legal heir should not be evicted.
• In the show cause notice, the ground on which eviction is proposed to be made should be specified so that the child/legal heir can respond appropriately.
• The show cause notice would call upon all persons who are either occupying the premises or claim interest in the premises, to provide reasons as to why they should not be evicted. Such a show cause would give at least 10 days’ time to the recipient of the notice to respond.
• As per Rule 22 (3)(2), the Deputy Commissioner/DM would consider the case put up by the noticees, including any evidence which may be produced, and after giving a hearing, pass a reasoned order on eviction.
Please read concluding on thedailyguardian.com
• Insofar as the nature of evidence is concerned, the Act or The Delhi
Maintenance and Welfare of Parents and Senior Citizens Rules
(Amendment) Rules, 2016, do not specify as to whether the evidence
should be oral/documentary.
The statutory scheme, as set out above, itself shows that the process
is time sensitive and is summary in nature.”
To put things in perspective, the
Bench then while citing the relevant case law observes in para 13
that, “The constitutional validity of Rule 22(3) and 22(4) of The
Delhi Maintenance and Welfare of Parents and Senior Citizens Rules
(Amendment) Rules, 2016, has been upheld by a Division Bench of this
Court in Aarshya Gulati (Through: next friend Mrs. Divya Gulati) &
Ors. v. GNCTD & Ors. [W.P.(C) 347/1028, decided on 30th May, 2019],
wherein the Court has observed as under:
“60. Now the question is whether the State Government could have
formulated a summary procedure for eviction. We must bear in mind the
objective for which the Parliament has enacted the Act, that is
because of 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 forced to spend their
twilight years all alone and are exposed to emotional neglect and to
lack of physical and financial support which clearly reveals that
ageing has become a major social challenge and there is a need to give
more attention to the care and protection of 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, a need was felt to have simple, inexpensive and
speedy mechanism for parents / senior citizens to claim maintenance.
The Act also provide for protection of the life and property of the
senior citizens / parents. The “protection of property” must be
understood to mean where a senior citizen retains the property in his
name and possession for his welfare and well being.
61. So, the objective of the Act being, to provide inexpensive and
speedy procedure for the protection of life and property of the senior
citizens from the children / legal heirs, who are expected to maintain
parents / senior citizens by providing the basic amenities and
physical needs but refuse or fail to maintain / provide basic
amenities which conduct shall amount to ill-treatment and
non-maintenance and shall be a ground for parents / senior citizens to
seek eviction of children / legal heir from the property, which is the
only way for them to seek protection of their property so that, they
continue to have shelter over their head, and sustain themselves
independently without interference from their children / legal heirs.
Further, a senior citizen cannot knock the door of civil Court to
fight a legal battle to obtain the possession of the property as the
jurisdiction of the Civil Court is barred under Section 27 of the Act.
In this regard, we may refer to the judgment of the Punjab and Haryana
High Court in the case of Justice Shanti Sarup Dewan, Chief Justice
(Retd.) and Anr. (supra) wherein in para 37 it is held as under:
…
63. So, it must be held that the Act empowers the State Government to
formulate summary procedure for eviction of children / legal heir of
senior citizens, in the eventuality of ill-treatment or
non-maintenance of Sr. Citizen / Parents.
…
66. In the case in hand, it is seen that the Parliament has expressed
itself through the Act, the objective of which has already been
narrated above. It is seen from the objective of the Act and from
Section 22 whereby the State Government has been empowered to
prescribe “a comprehensive action plan for providing protection of
life and property of Senior Citizens”. This being so, the protection
of life and property basically pertains to law and order, which is a
State subject. Therefore, the obligation to prepare Action Plan has
been put on the State Government. So, it follows that a policy has
been determined by the Parliament for the protection of life and
property of the Senior Citizen by the District Magistrate on the basis
of Action Plan / Rules framed by the State Government. The action plan
to be prescribed is the one, which is speedy and to be implemented by
the District Magistrate, that is by an authority other than Civil
Court, as the jurisdiction of Civil Courts is barred. So, the
confirmation of such a power, even on an administrative authority, is
justified. While exercising the powers bestowed under the Act / action
plan / rules, the District Magistrate / Deputy Commissioner ceases to
be an administrative authority as understood in normal parlance (even
though there is no bar). He performs quasi-judicial functions as
different from administrative functions. Further, the rules framed by
the Government of NCT of Delhi, indicate the parameters on which the
District Magistrate / Deputy Commissioner shall act, which includes,
on an application by Senior Citizen / Parent(s) for eviction of his /
her son, daughter or legal heir from his / her property (as defined
under Section 2(f) of the Act of 2007), the District Magistrate, after
getting the title of the property verified through SDM, and on
consideration of the provisions of the Act of 2007, and forming an
opinion that the son, daughter or legal heir are ill treating him /
her by occupying their property, after following the principles of
natural justice, by giving hearing to all persons concerned, pass an
order of eviction.”
Thus, the remedy provided under the Act and the Rules is a ‘simple’,
‘inexpensive’ and ‘speedy’ remedy. The provisions have to be thus
interpreted in this context.””
Quite remarkably, the Bench then
holds in para 14 that, “In the present case, vide impugned order dated
26th March, 2021, the Tribunal has directed as under:
“Case called applicant presented HC order which says an councillor or
relative can represent applicant’s case in maintenance Tribunal, 10
minutes was given to applicant to submit application in writing.
Applicant gave an application stating that Mr. Sanjeev
Kumar is my choice to represent him in Maintenance Tribunal case.
Tribunal allowed applicant’s choice Mr. Sanjeev Kumar
to represent the case. Mr. Sanjeev Kumar was allowed to submit his
application in writing within 10 days, whatever applicant wants to
record as evidence. Respondent No.1 Mrs. Vinita Saxena wanted she had
already submitted an application. She was advised to submit her
submission to tribunal once again.
Respondent Ms. Taruna Saxena submitted that she
was not allowed to enter the house to haste after her father
applicant.
All applicant and respondent were advised to submit
application to Tribunal before 6th April, 2021. The next hearing of
case would be heard on 16th April, 2021, 1400 hrs.”
From the above, it is clear that the Tribunal has allowed the parties
to submit applications specifying as to what evidence they wish to
lead. The procedure being summary in nature, there is no doubt that
the Tribunal is vested with the power to exercise discretion upon the
facts and circumstances of each case. In a particular case, if the
Tribunal is of the opinion that the attendance of the witnesses and
proving of documents is required, it has the power under Section 8(2)
of the Civil Court for the purpose of taking evidence on record and
enforcing attendance of witnesses. This, however, would not mean that
in every case, the Tribunal would have to record oral evidence or take
on record documentary evidence. The nature of the proceedings itself
being summary, the discretion vests with the Tribunal to adopt the
procedure as may be suitable to the facts and circumstances of each
case. Moreover, even if lawyers are allowed to represent the
litigants, the summary procedure cannot be permitted to be converted
into a long-drawn trial and adjudication, so as to defeat the very
purpose of the legislation itself.”
To be sure, the Bench then points out
in para 15 that, “In the present case, the Tribunal has allowed
parties to file their applications in respect of any evidence which
they wish to record. The said applications would thus be considered in
accordance with law, in terms of the provisions of the Maintenance and
Welfare of Parents and Senior Citizens Act, 2007 and the Rules made
thereunder.”
Finally, the Bench then holds in para 16
that, “With these observations, the present petition, along with all
pending applications, is disposed of.”
In a nutshell, this latest, learned,
laudable and landmark judgment by a Single Judge Bench of the Delhi
High Court comprising of Justice Pratibha M Singh has declared as
ultra vires Section 17 of the Maintenance and Welfare of Parents and
Senior Citizens Act, 2007 which bars lawyers from representing parties
in matters before the Maintenance Tribunals. In other words, lawyers
are fully entitled to represent parties in matters before the
Maintenance Tribunals. Very rightly so!
Sanjeev Sirohi, Advocate,
