Recently, the Delhi High Court declared an eviction order as invitiated because the District Magistrate (DM) and the Appellate Authority failed to issue a show cause notice (SCN) to the person facing eviction. In this context, eviction refers to any individual residing on a senior citizen's property whom the senior wishes to remove.
The Maintenance and Welfare of Parents and Senior Citizens Act, 2007, provides the right to maintenance to senior citizens. Section 23 of the Act deals with a crucial point, declaring the transfer of property void if the transferee does not provide basic amenities and fulfill the basic physical needs of the transferor (senior citizens).
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However, the Act provides a broader framework under which the States have their own rule and regulations to follow the provision given in the Senior Citizens Act 2007. For example, in Delhi, there is the Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009. Similarly, in Mumbai, the rules are known as Maharashtra Maintenance and Welfare of Parents and Senior Citizens Rules, 2010. Other States have their own provisions.
How Can A Senior Evict A Person From The Property After Giving It Away Under A Gift Deed Or Otherwise?
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Usually, seniors transfer their property to their children by executing a gift deed out of love and affection with the expectation that they will take care of them. At times, conflict with the son and daughter-in-law also serves as a reason to evict them from the property.
Bijal Ajinkya, Partner at Khaitan & Co, says, "One of the most drastic powers conferred under the 2007 Act is the power to summarily evict the children from the property of the senior citizen, in order to restore the property to the senior citizen and ensure their welfare."
"There is no express power of eviction conferred on the Tribunal under the Act, however, this power has been judicially read into Section 23 of the 2007 Act, based on the reasoning that eviction is an incident of the right to maintenance and protection of the senior citizen. This reasoning was approved by the Supreme Court of India, which also observed that the rights of the senior citizens under the 2007 Act must be balanced against the right to a shared household of the daughter-in-law under the Protection of Women from Domestic Violence Act 2005, and eviction orders against the daughter-in-law should not be passed as a matter of course", explains she.
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While the 2007 Act defines the structure of proceedings by the Tribunal, they have to follow the specific state rules to process the claims.
Does A District Magistrate (DM) Or Tribunal Have The Power To Pass An Eviction Order Against A Person Residing On A Senior Citizen's Property?
Ajinkya says, "It is not the district magistrate in their individual authority, but the Tribunal under the Senior Citizens Act which would exercise the power to evict the children/legal heirs. The district authority, which is vested with the jurisdiction under the Act and constituted as the Tribunal, may vary from State to State and depend on the rules enacted by the State Legislature. However, Section 15 of the 2007 Act specifies that the Appellate Tribunal cannot be any authority below the rank of a district magistrate."
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• According to Section 7 of the 2007 Act, the Tribunal shall be presided over by an officer, not below the rank of Sub-Divisional Officer of a State.
• Section 15 defines the structure of the Appellate Tribunal. According to it, the state government can constitute one Appellate Tribunal for each district to hear the appeal against the order of the Tribunal. The Appellate Tribunal shall be presided over by an officer, not below the rank of District Magistrate.
The Act grants the Tribunal the authority to issue an eviction order if it finds that a senior citizen is not being adequately maintained or provided with their basic needs. However, specific state rules and processes must be followed before such an order is issued. For instance, in Delhi, it is required to issue a show-cause notice (SCN) to the party facing eviction, clearly mentioning the reasons for the eviction. It is important to note that these rules may vary from one state to another.
While a DM does not have the power to evict someone from a senior's property in an individual's capacity, as an Appellate Authority, it can be done. However, eviction is a severe punishment and should be treated with due care, say the courts.
