Two-judge bench dismissed an intra-court appeal as not maintainable, holding that the Maintenance Tribunal under the 2007 Act is a court with all judicial trappings, thus rendering Article 227 jurisdiction appropriate and barring Rule 134 appeal.
Intra-court appeal dismissed for non-maintainability without examination of merits.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
D.B. Spl. Appl. Writ No. 444/2023
Ashok Kumar Joshi S/o Shri Achlaram Bhargava Joshi, Aged About 54 Years, R/o Plot No.153-A, Balaji Road, Masooriya, Jodhpur.
----Appellant
Versus
----Respondents
| For Appellant(s) | : Mr Narendra Thanvi |
|---|---|
| Mr Falgun Buch | |
| For Respondent(s) | : Mr Muktesh Maheshwari |
| Mr Yuvraj Singh |
HON'BLE MR. JUSTICE VIJAY BISHNOI HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI
Judgment
16/01/2024 (PER HON’BLE VIJAY BISHNOI, J.)
1. This intra-court appeal is filed by the appellant being aggrieved with the judgment dated 27.03.2023 passed by learned Single Judge in SBCWP No.6192/2021, Ashok Kumar Joshi vs. Achlaram Bhargava Joshi and Anr., whereby the said writ petition filed by the appellant challenging the order dated 17.02.2021 passed by the Maintenance Tribunal and Sub-divisional Officer, Jodhpur (hereinafter referred to as ‘the Maintenance Tribunal’) has been dismissed.
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2. Respondent - Achlaram filed an application under Section 5 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as ‘the Act’) seeking maintenance from the appellant. The Maintenance Tribunal allowed the said application vide order dated 17.02.2021 and directed the appellant to pay an amount of Rs.10,000/- per month as maintenance to respondent – Achlaram. Another application filed by the appellant before the Maintenance Tribunal for recalling of the order dated 17.02.2021 was dismissed vide order dated 17.03.2021.
3. Being aggrieved with the orders dated 17.02.2021 and 17.03.2021, the appellant preferred the above referred writ petition before the learned Single Judge, which came to be dismissed vide impugned judgment dated 27.03.2023, which is under challenge in this intra-court appeal.
4. A Co-ordinate Bench of this Court on 31.05.2023, granted time to the counsel for the appellant to satisfy the court with regard to the maintainability of the present appeal in light of the fact that the learned Single Judge has exercised jurisdiction under Article 227 of the Constitution of India against the order of the Tribunal. However, on 10.07.2023, this Court issued notice of the present appeal on the question of maintainability as well as on merits.
5. Pursuant to the notice issued by this Court, Mr Muktesh Maheshwari put in appearance on behalf of the respondent – Achlaram and raised a preliminary objection regarding maintainability of this intra-court appeal while contending that the learned Single Judge while exercising powers under Article 227 of
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the Constitution of India has dismissed the writ petition filed by the appellant against the order of Maintenance Tribunal, hence, this intra-court appeal under Rule 134 of Rajasthan High Court Rules, 1952 (hereinafter referred to as ‘the Rules of 1952) is not maintainable.
6. Learned counsel appearing for the appellant has vehemently contended that the learned Single Judge has passed the impugned order while exercising powers under Article 226 of the Constitution of India and, therefore, this intra-court appeal under Rule 134 of the Rules of 1952 is maintainable.
7. Learned counsel for the appellant has vehemently argued that the Maintenance Tribunal constituted under the provisions of the Act do not have all the trappings of civil court and cannot be held to be a court of civil court in strict sense. It is contended that any order passed by the Maintenance Tribunal cannot be termed as an order passed by civil court and, therefore, challenge to any such order would be maintainable before the High Court under Article 226 of the Constitution of India only and not under Article 227 of the Constitution of India. Learned counsel for the appellant has, therefore, argued that the present intra-court appeal preferred against the impugned judgment of the learned Single Judge is very well maintainable and the preliminary objection raised by the learned counsel for the respondents is liable to be rejected and the present intra-court appeal be decided on merits. 8. Per contra, learned counsel appearing for the respondent – Achlaram vehemently opposed the submissions made by learned counsel for the appellant and reiterated that the learned Single Judge has passed the impugned order while exercising power
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under Article 227 of the Constitution of India and, therefore, this intra-court appeal against the impugned judgment is not maintainable.
9. We have heard learned counsel for the parties on the question of maintainability and are answering the said question. If we come to the conclusion that the impugned order has been passed under Article 226 of the Constitution of India and not under Article 227 of the Constitution of India by the learned Single Judge, then we proceed to decide the matter on merits.
10. Under Article 226 of the Constitution of India, an High Court is having extraordinary jurisdiction to issue directions, orders or writs including writs in the nature of habeas corpus, writ of mandamus, prohibition, quo warranto and certiorari or any of them to any person or authority, any Government within its territory for the enforcement of any of the rights conferred under Part III of the Constitution of India or for any other purpose, whereas Article 227 of the Constitution of India confers superintendence power upon High Court over the inferior courts such as judicial, quasi judicial and tribunals.
11. Now we have to examine whether the Maintenance Tribunal constituted under Section 7 of the Act is discharging the duties of civil court or not or is having trappings of civil court and, therefore, it is a court in strict sense.
12. A Constitution Bench of Hon’ble Supreme Court in Jaswant
Sugar Mills Ltd., Meerut vs. Lakshmichand and Ors., MANU/SC/0277/1962 has held as under:
“ 13 . To make a decision or an act judicial, the following criteria must be satisfied :
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(1) it is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of pre-existing legal rule;
(2) it declares rights or imposes upon parties obligations affecting their civil rights; and
(3) that the investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on questions of fact, and if the dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact.
20. The duty to act judicially imposed upon an authority by statute does not necessarily clothe the authority with the judicial power of' the State. Even administrative or executive authorities are often by virtue of their constitution, required to act judicially in dealing with question affecting the rights of citizens. Boards of Revenue, Customs Authorities, Motor Vehicles Authorities, Income-tax and Sales-tax Officers are illustrations prima facie of such administrative authorities, who though under a duty to act judicially, either by the express provisions of the statutes constituting them or by the rules framed thereunder or by the implication either of the statutes or the powers conferred upon them are still not delegates of the judicial power of the State. Their primary function is administrative and not judicial. In deciding whether an authority required to act ,judicially when dealing with matters affecting rights of citizens may be regarded as a tribunal, though not a court, the principal incident is the investiture of the "trappings of a court"-such as authority to determine matters in cases initiated by parties, sitting in public, power to compel attendance of witnesses and to examine them on oath, duty to follow fundamental rules of evidence (though not the strict rules of the Evidence Act),
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provision for imposing sanctions by way of imprisonment, fine, damages or mandatory or prohibitory orders to enforce obedience to their commands. The list is illustrative ; some, though not necessarily all such trappings will ordinarily make the authority which is under a duty to act judicially, a 'tribunal'.
(Emphasis supplied)
. The above referred judgment is constantly being followed by the Hon’ble Supreme Court as well as by various High Courts of the country till date.
13. In the above settled proposition of law laid down by the Hon’ble Supreme Court for the purpose of answering whether the Maintenance Tribunal constituted under Section 7 of the Act has all the trappings of the civil court and judicial functions discharged by it are similar to the civil court and any order passed by it can only be challenged under Article 227 of the Constitution of India, we have to look into the scheme of the Act and Rules made thereunder.
14. Preamble of the statement of objects and reasons for enacting the Act are as follows:
“STATEMENT OF OBJECTS AND REASONS
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 person 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
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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 provision to claim maintenance for parents.
The bill further proposes to provide better medical facilities to senor citizen and provisions for protection of their life and property.
15. Section 3 provides that the Act to have overriding effect on
the provisions of any other Acts which are inconsistent with the provision of the present Act.
16. Section 4 provides for entitlement for maintenance by a senior citizen including parent who is unable to maintain himself from his own earning or out of the property owned by him against one or more of his children not being a minor and in the case of a childless senior citizen against his relatives who would inherit his property, whereas Section 5 inter alia provides for making
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application for maintenance by a senior citizen or a parent and if he is incapable, by any other person or organisation authorized by him. The Tribunal may also take cognizance suo motu. It empowers the Tribunal to make monthly allowance during the pendency of the proceeding. It provides that an application for monthly allowance shall as far as possible be disposed of within ninety days from the date of the service of notice of the application. It also provides that an application for maintenance made against one or more persons and the children or relative may implead the other person liable to maintain, and the death of one of them does not affect the liability of others.
17. As per Section 6 of the Act an application for maintenance may be made by a senior citizen or parent against any children or relative in any district where the senior citizen or parent resides or where the children or relative resides. It provides that the Tribunal has to issue a process on receipt of an application and the Tribunal will have the powers of a Judicial Magistrate first class for securing the attendance of children or relative. It also provides that the Tribunal may before hearing the application refer the same to a Conciliation Officer for amicable settlement.
18. Section 7 speaks that the State Government may by notification in the Official Gazette constitute one or more Tribunals for each Sub-division and the Tribunal shall be presided over by an officer not below the rank of Sub-Divisional Officer of a State and where two or more Tribunals are constituted for any area, the
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State Government may, by general or special order, regulate the distribution of business among them.
19. Section 8 provides that in holding any inquiry under this Act, the Tribunal may follow such summary procedure as it deems fit and for the purpose of taking evidence on oath and enforcing the attendance of witnesses and compelling the discovery and production of documents, the Tribunal shall have the powers of a Civil Court.
20. As per Section 9 of the Act, if children or relatives neglect or refuse to maintain a senior citizen, the Tribunal may on being satisfied of such neglect or refusal, order such children or relatives to make a monthly allowance at such monthly rate for the maintenance of such senior citizen and the Tribunal may order the maintenance allowance as may be specified by the State Government by rules but it shall not exceed rupees ten thousand.
21. Section 10 speaks that on proof of misrepresentation or mistake of fact or a change in the circumstances of any person, receiving a monthly allowance, the Tribunal may make such alteration, as it thinks fit and the Tribunal may also cancel or vary the order of maintenance in consequence of an order of a Civil Court.
22. Section 11 provides that a copy of the order of maintenance and expenses of proceedings shall be given to the senior citizen or parent free of cost and the order of maintenance made under this Act will have the same force and effect as an order passed under Chapter IX of the Code of Criminal Procedure, 1973.
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23. Section 12 provides that where a senior citizen or a parent is entitled for maintenance under this Act and also under Chapter IX of the Code of Criminal Procedure, 1973 relating to the maintenance of wives, children and parents, or senior citizens will have the option to pursue their claim either under the Code of Criminal Procedure, 1973 or under the provisions of this Act, whereas Section 13 provides that the children or relatives who are required to pay any amount of maintenance ordered by the Tribunal shall deposit the entire amount within thirty days with the Tribunal in such manner as the Tribunal may direct.
24. As per Section 14 of the Act the Tribunal may direct the payment of interest of not less than five per cent. and not more than eighteen per cent. in addition to the amount of maintenance. It also provides that where an application for maintenance under Chapter IX of the Code of Criminal Procedure, 1973 is pending before a Court at the commencement of this Act, then such Court shall allow the withdrawal of such application on the request of the parent or senior citizen.
25. Section 15 provides for constitution of Appellate Tribunal by the State Government presided over by an officer not below the rank of District Magistrate.
26. Section 16 of the Act gives right to a senior citizen or a parent aggrieved by the decision of the Tribunal to prefer an appeal to the Appellate Tribunal within sixty days from the date of the order of the Tribunal. This section also provides for procedure for hearing appeals against the orders of the Tribunal. The Tribunal
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shall make endeavour to decide the appeal within one month from the date of filing of appeal.
27. Section 17 provides that the legal practitioners shall not participate in any of the proceedings before the Tribunals and Appellate Tribunals.
28 . Section 18 speaks that the State Government shall designate the District Social Welfare Officer or an Officer not below the rank of a District Social Welfare Officer as Maintenance Officer who shall represent a parent if he so desires before a Tribunal or Appellate Tribunal, whereas Section 19 provides that the State Government may establish the oldage homes in a phased manner for senior citizens who are poor. Further, it also provides that the State Government may prescribe a scheme for management of oldage homes including the standards and various types of services provided by them which are necessary for medical care and entertainment.
29. As per Section 20 of the Act, the State Government shall ensure that beds be provided for all senior citizens in Government hospitals or hospitals funded fully or partially by the Government as far as possible. It also provides that separate queues be arranged for senior citizens; facility for treatment of chronic, terminal and degenerative diseases; research activities for chronic diseases shall be expanded and facilities for geratic patients in every district hospital shall be earmarked.
30. Section 21 provides that the State Govemment shall take measures to give wide publicity through public media including the
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television, radio and the print, at regular intervals, the provisions of the Act. It also provides that the State Government shall ensure that the officers of the Central Government and State Government including the police officers and the member of the judicial service are given periodic sensitization and awareness training on the issues relating to this Act and effective co-ordination between the services provided by the concerned Ministries or Departments dealing with law, home affairs, health and welfare.
31. Section 22 provides that the State Government may confer such powers and impose such duties on District Magistrates to ensure that the provisions of this Act are properly carried out and the District Magistrates may specify the officers subordinate to them who shall exercise any of the powers and perform all or any of the duties conferred and the local limits within which such powers or duties shall be carried out. It also provides that the State Government shall make a comprehensive action plan for providing protection of life and property of senior citizens.
32. As per Section 23 of the Act, if a senior citizen after the commencement of the provisions of this Act, transfers his property by way of gift or otherwise with the condition that the transferee shall provide basic amenities and basic physical needs and such transferee fails or refuses 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 the transfer be declared void by the Tribunal at the option of the senior citizen. It also provides that where any senior citizen has a
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right to receive maintenance out of an estate or part thereof and such estate or part thereof is transferred, the right may be enforced against the transferee. It further provides that if any senior citizen is incapable of enforcing the rights, action may be taken on his behalf by any of the voluntary association registered under the Societies Registration Act, 1860 or any other law for the time being in force.
33. As per Section 24, any person who is having care or protection of any senior citizen intentionally abandons a senior citizen shall be liable for punishment of imprisonment up to three months or with fine which may extend to five thousand rupees, whereas Section 25 provides that the offences under this Act are cognizable and bailable and shall be tried summarily by a Magistrate.
34. Section 26 speaks that every officer appointed to exercise the functions under the proposed Act shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code, whereas Section 27 provides that the jurisdiction of the Civil Courts is barred.
35. Section 28 speaks that no suit, prosecution or other legal proceeding shall lie against the Central Government, the State Government or the local authority or any officer of the Government in respect of anything which is done in good faith or intended to be done in pursuance of this Act and any rules or orders made thereunder, whereas Section 29 provides that the State Government may by notification in the Official Gazette
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remove any difficulty which may arise in implementing the provisions of this Act. The said power may be exercised by the State Government within a period of two years from the commencement of the present legislation.
36. Section 30 empowers the Central Government to give direction to the State Governments for carrying into execution the provisions of the proposed legislation, whereas as per Section 31 of the Act, the State Governments is empowered to make rules for carrying out the purposes of the proposed legislation. Every rule made by the respective State Governments shall be laid before the concerned State Legislature by that Government.
37. Section 32 of the Act empowers the State Government to make rules for carrying out the purpose of this Act.
38. The State of Rajasthan while exercising powers under Section 32 of the Act has framed Government of Rajasthan Maintenance of Parents and Senior Citizens Rules, 2010 (hereinafter referred to as ‘the Rules of 2010’). In the said Rules, after providing definitions in Chapter-II, Procedure for Maintenance Tribunal and Conciliation Officers has been given, which provides that a panel for appointment of Conciliation Officer shall be prepared; procedure for filing an application for maintenance and its registration has also been provided; procedure for issuing notice to the opposite party and in case of non-appearance of opposite party procedure, to be followed, have also been provided; in case of admission of claim, the procedure to be followed, is provided; the procedure for impleading children
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or relatives is also provided; the procedure for making reference to the Conciliation Officer and proceedings by Conciliation Officer has also been provided; action by the Tribunal in case of settlement before a Conciliation Officer has also been provided and action by the Tribunal in other cases, where the dispute cannot be referred to the Conciliation Officer due to disagreement of the parties has also been provided.
39. Chapter-III of the Rules of 2010 deals with the procedure of the Appellate Tribunal, wheres Chapter-IV of the Rules defines Scheme for Management of Old Age Homes established under Section 19. Chapter-V defines duties and powers of the District Magistrate. Chapter-VI deals with the protection of life and property of senior citizens. Chapter-VII deals with the State and District Co-ordination Committees for senior citizens and the Schedule defines the norms of physical facilities and operational standards for an old age home for indigent senior citizens established under Section 19 of the Act and thereafter various norms have also been prescribed.
40. An application for maintenance under Section 4 of the Act can be moved by a senior citizen or a parent before the Maintenance Tribunal and the Maintenance Tribunal is required to issue notice to the children or relative from whom the maintenance is demanded and after giving an opportunity of hearing to the parties, hold an inquiry for determining the maintenance.
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41. Section 6 defines the jurisdictional procedure of the Tribunal, which includes that the Tribunal can issue a process for procuring the presence of children and relative against whom the application is filed and for securing their attendance, the Tribunal shall have the power of a Judicial Magistrate of first class as provided under the Code of Criminal Procedure. It further provides that all evidence to such proceedings shall be taken in the presence of the children or relative against whom an order for payment of maintenance is proposed to be made.
42. Section 7 speaks about the constitution of Maintenance Tribunal, whereas Section 8 provides that the Maintenance 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 the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure. The Tribunal can seek assistance of one or more persons possessing special knowledge of deciding the claim upon the maintenance.
43. As per Section 10 of the Act, the Tribunal can alter its order and as per Section 11, the Tribunal has powers to enforce its order of maintenance. Sub-section (2) of Section 11 specifically provides that a maintenance order passed by the Maintenance Tribunal shall have the same force and effect as an order passed under Chapter IX of the Code of Criminal Procedure and shall be
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executed in the manner prescribed for the execution of such order by that Code.
44. Section 27 of the Act bars the jurisdiction of civil court in respect of any order to which the Act applies.
45. The Rules of 2010 provides the procedure for Maintenance Tribunal and Conciliation Officers and for filing application for maintenance. It also provides that the Maintenance Tribunal can issue notice to the opposite party and the provisions of Order-V of the Code of Civil Procedure shall apply for the purpose of service of notice upon opposite party.
46. Rule 13 of the Rules of 2010 provides that Tribunal shall provide an opportunity of leading evidence to the parties in support of their respective claims and after a summary inquiry shall pass an order as it deems fit.
47. A close scrutiny of the above provisions of the Act and Rules of 2010, we have no hesitation in holding that the Maintenance Tribunals constituted under Section 7 of the Act for deciding the matters regarding the maintenance and welfare of the parents and senior citizens guaranteed and recognized under the Constitution and for matters connected therewith or incidental thereto are having all the trappings of the civil court and any order passed by those Maintenance Tribunals comes within the definition of ‘judicial function’ similar to the functions discharged by civil court.
48. In view of the above, the net result is that any order passed by the Maintenance Tribunals can be challenged before the High
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Court by invoking its superintendence powers as provided under Article 227 of the Constitution of India and against the order passed by learned Single Judge, no intra-court appeal is maintainable.
49. Consequently, this intra-court appeal is dismissed as not maintainable. Since it is held that this intra-court appeal is not maintainable, we have not examined the merits of the case.
50. No order as to costs.
(RAJENDRA PRAKASH SONI),J
(VIJAY BISHNOI),J
masif/-D.R.
2 issues framed by the court
Whether the Maintenance Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 possesses all the trappings of a civil court.
Whether an order passed by the Maintenance Tribunal can be challenged under Article 227 of the Constitution of India instead of Article 226.
Colour shows how this judgement treated each authority
Jaswant Sugar Mills Ltd. vs. LakshmichandApplied¶36
Jaswant Sugar Mills Ltd., Meerut vs. Lakshmichand and Ors., MANU/SC/0277/1962
4 provisions across 3 enactments
Ashok Kumar Joshi
Achlaram Bhargava Joshi
VIJAY BISHNOI
RAJENDRA PRAKASH SONI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
