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Above: The old and deprived have something to cheer about after the High Court’s verdict/Photo: myrows.org.in

In a welcome move, the Delhi High Court has justified summary eviction of children and legal heirs from the properties of senior citizens if they are found neglecting or ill-treating them

By Venkatasubramanian

Due to the withering of the joint family system, a large number of elderly are not being looked after by their families. Consequently, many of them, particularly widows, are forced to spend their twilight years all alone and are exposed to emotional neglect and lack of physical and financial support. Ageing, thus, has become a major social challenge and there is a need to give more attention to their care and protection.

Though parents can claim maintenance under the Code of Criminal Procedure 1973, the procedure is both time-consuming and expensive. Hence, a need was felt to have a simple, inexpensive and speedy mechanism…

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Above: The old and deprived have something to cheer about after the High Court’s verdict/Photo: myrows.org.in

In a welcome move, the Delhi High Court has justified summary eviction of children and legal heirs from the properties of senior citizens if they are found neglecting or ill-treating them

By Venkatasubramanian

Due to the withering of the joint family system, a large number of elderly are not being looked after by their families. Consequently, many of them, particularly widows, are forced to spend their twilight years all alone and are exposed to emotional neglect and lack of physical and financial support. Ageing, thus, has become a major social challenge and there is a need to give more attention to their care and protection.

Though parents can claim maintenance under the Code of Criminal Procedure 1973, the procedure is both time-consuming and expensive. Hence, a need was felt to have a simple, inexpensive and speedy mechanism for parents/senior citizens to claim maintenance.

The Maintenance and Welfare of Parents and Senior Citizens Act, 2007, was enacted to achieve this purpose.  The Act also provides for protection of the life and property of senior citizens and parents from the children/legal heirs who refuse or fail to maintain/provide basic amenities to them. The Act entitles parents/senior citizens to seek eviction of children/legal heirs from the property, which is the only way for them to seek protection so that they continue to have shelter and can sustain themselves independently without interference from their children/legal heirs.

A senior citizen cannot knock the door of a civil court to fight a legal battle to obtain possession of the property as the jurisdiction of this court is barred under Section 27 of the Act. The Act empowers the state government to formulate summary procedure for eviction of children/legal heirs of senior citizens in the eventuality of ill-treatment or non-maintenance of them. Section 22 empowers state governments to prescribe “a comprehensive action plan for providing protection of life and property of senior citizens”.

On May 30, the Delhi High Court held that as the protection of life and property basically pertains to law and order, a state subject, the obligation to prepare an action plan has been put on the state government. The plan to be prescribed is the one which is speedy and to be implemented by the district magistrate (DM), ie., by an authority other than a civil court, whose jurisdiction is barred under the Act. The DM, under the Act, performs quasi-judicial functions as different from administrative functions.

In the instant case, the Government of National Capital Territory of Delhi (GNCTD) framed rules under the Act to indicate the parameters on which the DM/Deputy Commissioner shall act. On June 30, 2009, the GNCTD notified the Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009 and a separate Comprehensive action plan was also framed under Section 32(2)(f) of the Act. This plan, through Rule 22(1) and (2), cast a duty on concerned police officials to prepare a list of senior citizens in their area, regularly visit them and promptly attend to their complaints. But there was no specific provision for any remedy of eviction under the action plan.

On December 19, 2016, the GNCTD incorporated under a summary procedure for eviction of a senior citizen’s son/daughter/legal heir from his self-acquired property on account of his non-maintenance and ill-treatment. The Rules were further amended on July 18, 2017, to expand the scope of the term “property” under the Rules. As a result, the remedy of eviction was extended to “property of any kind, whether moveable or immoveable, ancestral or self-acquired, tangible and intangible, and include rights or interests in such property” as opposed to only self-acquired property.

In Aarshya Gulati (Through Next Friend Mrs. Divya Gulati) and Ors v GNCTD and others, two minor petitioners challenged through their mother, the validity of the Rules before the Delhi High Court. They contended that the impugned Rules erroneously conferred powers of eviction through a summary procedure wherein any party in settled possession and having possessory rights will be evicted without following substantive procedure of law.

The petitioners contended that the Act does not contemplate resolution of family dispute or the protection of civil rights and the property of senior citizens who are of adequate means and are not left shelterless or without food. The Act, they contended, provides for protection only in cases where the senior citizens/parents have been neglected or abused to usurp their property. Enlarging the scope of the Act, they argued, would amount to judicial activism. The bench of the outgoing Chief Justice Rajendra Menon (who retired on June 6) and Justice V Kameswar Rao (who authored the judgment), however, found these arguments irrelevant to resolve the challenge before them.

Thus, on an application by a 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 DM, after due diligence and following the principles of natural justice, may pass an order of eviction.

The eviction is from the property of the senior citizen/parent which is, movable or immovable, ancestral or self-acquired, tangible or intangible property which he owns or has a right or interest.

The Delhi High Court has held that the Act’s delegation of power to the state government to frame an action plan and to the DM to implement the same is justified and is not vague.

Further, the centre, through Sections 30 and 31 of the Act has retained with itself the power to issue broad guidelines to the state governments on executing the provisions of the Act and also to make periodical review and monitor the progress of the implementation of the provisions of the Act. The Delhi High Court inferred from this that the centre thus has the power to prevent the misuse of the Act.

While interpreting laws aiming at social welfare, courts generally choose the interpretation which favours its beneficiaries. Therefore, the Delhi High Court’s May 30 judgment is consistent with this principle of interpretation. It has helped the judiciary resolve legal challenges to laws aimed at protection of the rights of senior citizens.

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