AI Structured Summary
Not yet generated for this judgment
Judgment
KIRTI SINGH, J. (ORAL)
The present writ petition has been filed under Articles 226/227 of the Constitution of India for quashing of the impugned order dated 23.07.2024 (Annexure P-3) passed by District Magistrate-cum-Appellate Tribunal, whereby the learned Appellate Tribunal erroneously allowed the appeal filed by respondent No.3 and consequently cancelled the transfer Deed. A further prayer is made to quashing of the order dated 19.12.2023 (Annexure P-1), passed by learned Sub Divisional Magistrate-cum-Chairman Maintenance Tribunal, Kaithal, whereby the learned Tribunal erroneously ordered the petitioner to pay Rs.5,000/- per month to respondent No.3 as maintenance.
Succinctly stated, respondent No.3 instituted an application under the Maintenance & Welfare of Parents and Senior Citizens Act, 2007 (for short ‘the Act of 2007’) before the Maintenance Tribunal/Sub Divisional Magistrate, Kaithal, seeking maintenance from the petitioner and restoration of possession of the shop in her favour, as also the present petitioner be restrained from interfering in the possession of respondent No.3. Vide order dated 19.12.2023 (Annexure P-1), the Maintenance Tribunal concerned partly allowed the said application. Aggrieved thereby, respondent No.3 preferred a statutory appeal before the learned Appellate Tribunal, Kaithal which was allowed vide impugned order dated 23.07.2024 (Annexure P-3). Being aggrieved therefrom, the petitioner has preferred the present writ petition before this Court.
At the outset, learned counsel for the petitioner draws the attention of this Court to Haryana Government’s notification dated 17.11.2016, prescribing the composition of the Maintenance Tribunals and Appellate Tribunals, to submit that both the impugned orders suffer from illegality, having been passed coram non judice. It is submitted that under the notification (supra), both the Maintenance Tribunal and the Appellate Tribunal are required to comprise three members, with the Sub-Divisional Magistrate and the Deputy Commissioner/District Magistrate acting as their respective Chairmen. In the present case, however, both the impugned orders were passed in the absence of second and third member. Therefore, the said orders were rendered without the mandated coram, rendering them illegal and without jurisdiction. In support of this contention, reliance is placed on the judgment dated 26.10.2016 rendered by a Coordinate Bench of this Court in CWP No.18784 of 2015, the relevant paragraph whereof is extracted hereunder:
“I have heard learned counsel for the parties and perused the record with able assistance and am of the considered opinion that the impugned order passed by the Appellate Authority is patently without jurisdiction because as per the Scheme of the Act, the Tribunal and the Appellate Tribunal are constituted by the State Government by way of notification and the appeal has to be decided by the duly constituted Tribunal. In the present case, notification dated 10.12.2012 has been relied upon to which there is no contrary notification produced before this Court. In this notification, the Tribunal has been specifically constituted for Kurukshetra in which there are three Members. District Magistrate may be the Chairman of the Tribunal but once there is a Tribunal of three Members, the District Magistrate has no jurisdiction to take decision alone and the decision has to be taken unanimously or by way of majority. Therefore, on this ground alone, the impugned order deserves to be set aside and thus the present writ petition is hereby allowed and impugned order is set aside and the matter is remanded back to the Tribunal constituted as per notification dated 10.12.2012 to decide the matter afresh after affording due opportunity of hearing to both the parties and by passing a reasoned order.”
Learned State counsel does not dispute that both the impugned orders are vitiated as they were passed coram non judice.
Having considered the submissions of learned counsel for the parties and perused the record, this Court finds that both the impugned orders were passed by the authority(ies) concerned lacking jurisdiction and lawful coram prescribed in the notification dated 17.11.2016. Consequently, the same are nullity in the eyes of law and cannot be sustained.
Accordingly, the impugned orders dated 19.12.2023 and 23.07.2024, passed respectively by the Maintenance Tribunal and the Appellate Tribunal, are hereby set aside. The matter is remanded to the Maintenance Tribunal for fresh adjudication in accordance with the provisions of the Act of 2007. The parties shall cause appearance before the Maintenance Tribunal on 27.08.2026, whereupon the latter shall endeavour to decide the matter expeditiously, but after affording adequate opportunity of hearing to all parties concerned.
Disposed of accordingly.
Pending miscellaneous application(s), if any, also stands disposed of.