SHRI AMIT KUMAR  Vs SMT KIRAN SHARMA & ANR.

W.P.(C) 106/2021 Page 1 of 6$~26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 6thJanuary, 2021
+ W.P.(C) 106/2021 & CM APPL. 309/2021
SHRI AMIT KUMAR ….. Petitioner
Through: Mr. Vishal Sharma, Advocate.
(M:9810241795)
versus
SMT KIRAN SHARMA & ANR. ….. Respondents
Through: Ms. Saumya Tandon, Advocate for R-
2.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J.(Oral)
1. This hearing has been done by video conferencing.
2. The present petition challenges order dated 18thAugust, 2020 passed
by the ld. Additional District Magistrate (hereinafter, “ADM” ) under The
Maintenance and Welfare of Parents and Senior Citizens Act, 2007
(hereinafter, “Act” ).
3. Ld. counsel for the Respondents relies upon the judgment of the
Punjab & Haryana High Court in Paramjit Kumar Saroya v. The Union of
India & Anr., 2014 SCC OnLine P&H 10864 as also the recent order of a
ld. Single Judge of this Court in Naveen Kumar v. GNCTD & Ors.
[W.P.(C) 1337/2020, decided on 5thFebruary, 2020] to argue that the
Petitioner has an alternative remedy to approach the Tribunal.
4. Ld. counsel for the Petitioner, on the other hand, submits that the
Petitioner’s father had three properties, one in Rohini, one in Najafgarh and
one in Munirka. Insofar as the Najafgarh property is concerned, the same
2021:DHC:38W.P.(C) 106/2021 Page 2 of 6was purchased in Respondent No.1’s name and the Munirka flat, which is
the property in issue, was gifted to the Petitioner. Thus, the impugned order,
which allows Respondent No.1 to reside in the Munirka property, is not
tenable.
5. Heard counsels for the parties. Section 16 of The Maintenance and
Welfare of Parents and Senior Citizens Act, 2007 (hereinafter, “Act”)
provides for an appellate remedy against an order of the tribunal. However,
as per the text of the provision, any senior citizen or parent must prefer such
an appeal within sixty days. The said provision reads as under:
“16. Appeals. —(1) Any senior citizen or a parent, as
the case may be, aggrieved by an order of a Tribunal
may, within sixty days from the date of the order,
prefer an appeal to the Appellate Tribunal:
Provided that on appeal, the children or relative
who is required to pay any amount in terms of such
maintenance order shall continue to pay to such parent
the amount so ordered, in the manner directed by the
Appellate Tribunal:
Provided further that the Appellate Tribunal may,
entertain the appeal after the expiry of the said period
of sixty days, if it is satisfied that the appellant was
prevented by sufficient cause from preferring the
appeal in time.
(2) On receipt of an appeal, the Appellate Tribunal
shall, cause a notice to be served upon the respondent.
(3) The Appellate Tribunal may call for the record
of proceedings from the Tribunal against whose order
the appeal is preferred.
(4) The Appellate Tribunal may, after examining the
appeal and the records called for either allow or reject
the appeal.
(5) The Appellate Tribunal shall, adjudicate and
decide upon the appeal filed against the order of the
Tribunal and the order of the Appellate Tribunal shall
2021:DHC:38W.P.(C) 106/2021 Page 3 of 6be final:
Provided that no appeal shall be rejected unless an
opportunity has been given to both the parties of being
heard in person or through a dully authorised
representative.
(6) The Appellate Tribunal shall make an endeavour
to pronounce its order in writing within one month of
the receipt of an appeal.
(7) A copy of every order made under sub-section
(5) shall be sent to both the parties free of cost.”
6. Interpreting this provision, the Punjab & Haryana High Court in
Paramjit Kumar Saroya (supra) has held that the remedy to appeal can be
availed of by any affected party, which would include the children of senior
citizens. The relevant portion of the judgment reads as under:
“An appeal is envisaged “against the order of the
Tribunal”. This is how Section 15 reads. It does not
say an appeal only by a senior citizen or parent.
However, sub section (1) of Section 16 refers to any
senior citizen or a parent “aggrieved by an order of
the Tribunal”. This seeks to give an impression on a
plain reading as if only a senior citizen or parent can
prefer an appeal and, thus, restricting the appeal to
only one set of party, while denying the right of appeal
to the opposite side who are liable to maintain.
However, this is not followed by the first proviso which
deals with the operation of the impugned order during
the pendency of the appeal and clarifies that the
pendency of the appeal will not come in any manner in
the way of the children or relative who is required to
pay any amount in terms of any such order to continue
to pay the amount. Now it can hardly be envisaged that
in an appeal filed by the senior citizen or parent, there
could be a question of absence of stay. Such absence of
stay was only envisaged where the appeal is preferred
by a children or relative. It is that eventuality the
2021:DHC:38W.P.(C) 106/2021 Page 4 of 6proviso deals with. The proviso is, thus, consistent with
what has been set out in Section 15 of the said Act.
…
We may add at this stage that in order to have
assistance to this Court in view of the complexity in the
matter involved, we considered it appropriate not only
for the counsels to assist us, but to appoint Amicus
Curiae to have dispassionate view of the matter. We,
thus, appointed Mr. Puneet Bali, Senior Advocate as
the Amicus Curiae to be assisted by Ms. Divya Sharma,
Advocate. They have done a comprehensive research
on various aspects of the matter and this includes the
Parliamentary debates when the Bill for enactment of
the said Act was introduced. A perusal of these debates
reflect that there has been no debate qua Section 16(1)
of the said Act, nor has any intent been reflected to
exclude the right of appeal to persons other than the
senior citizens or parents, unlike the debate on Section
17 of the said Act where the right of legal
representation has been excluded.
…
Now coming to the conspectus of the discussion
aforesaid, we have no doubt in our mind that we would
be faced with the serious consequences of quashing
such a provision which deprives the right of one party
to the appeal remedy, while conferring it on the other
especially in the context of the other provisions of the
same Section as well as of the said Act. We have to
avoid this. The only way to avoid it is to press into
service both the principles of purposive interpretation
and casus omissus. The Parliamentary discussions on
the other provisions of the said Act do not convey any
intent by which there is any intent of the Parliament to
create such a differentiation. There is no point in
repeating what we have said, but suffice to say that if
nothing else, at least to give a meaning to the first
proviso of Section 16(1) of the said Act, the only
interpretation can be that the right of appeal is
2021:DHC:38W.P.(C) 106/2021 Page 5 of 6conferred on both the sides. It is a case of an
accidental omission and not of conscious exclusion.
Thus, in order to give a complete effective meaning to
the statutory provision, we have to read the words into
it, the course of action even suggested in N.
Kannadasan’s case (supra) in para 55. How can
otherwise the proviso to sub section (1) be reconciled
with sub section itself. In fact, there would be no need
of the proviso which would be made otiose and
redundant. It is salutary role of construction of the
statute that no provision should be made superfluous.
There is no negative provision in the Act denying the
right of appeal to the other parties. The other
provisions of the Act and various sub sections
discussed aforesaid would show that on the contrary
an appeal from both sides is envisaged. Only exception
to this course of action is the initial words of sub
section (1) of Section 16 of the said Act which need to
be supplanted to give a meaning to the intent of the
Act, other provisions of the said Act as also other sub
sections of the same Section of the said Act. In fact,
in Board of Muslim Wakfs Rajasthan’s case (supra),
even while cautioning supply of casus omissus, it has
been stressed in para 29 that the construction which
tends to make any part of the statute meaningless or
ineffective must always be avoided and the
construction which advances the remedy intended by
the statute should be accepted. This is the only way we
can have a consistent enactment in the form of whole
statute.
We are thus of the view that Section 16(1) of the said
Act is valid, but must be read to provide for the right of
appeal to any of the affected parties.”
7. Relying upon the said judgment, recently, in Naveen Kumar (supra) ,
a ld. Single Judge of this Court has noted the said judgment and permitted
the Petitioner therein to avail of the remedy to appeal. This Court concurs
2021:DHC:38W.P.(C) 106/2021 Page 6 of 6with the interpretation given to Section 16 of the Act by the Punjab &
Haryana High Court. The Appellate Tribunal, having been constituted under
the Act, anyone aggrieved by an order passed by the Tribunal should be
allowed to approach the Appellate Tribunal. Accordingly, the Petitioner is
permitted to approach the Appellate Tribunal constituted under the Act to
raise any challenge against the impugned order dated 18thAugust, 2020.
8. The petition is, accordingly, dismissed. The Petitioner is permitted to
approach the Tribunal within 30 days. If the appeal is filed within 30 days,
the issues of limitation shall not be raised in the appeal. All pending
applications are also disposed of.
PRATHIBA M. SINGH
JUDGE
JANUARY 6, 2021/ dk/T
2021:DHC:38