Gauhati High Court
Page No.# 1/2 vs The State Of Assam And 4 Ors on 14 July, 2025
Page No.# 1/20
GAHC010162542024
2025:GAU-AS:9026
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4217/2024
RAM CHANDRA GOSWAMI
S/O LATE BHUDHAR GOSWAMI
PERMANENT ADDRESS-
H/NO. 7, REHABARI SUHAGPUR, (NEAR ARYA HOSPITAL), P.O. REHABARI,
GUWAHATI, DIST. KAMRUP (M), ASSAM-781008.
TEMPORARY ADDRESS-C/O D CHOUDHURY,
H/NO. 60, ASSAM POLICE HOUSING CORPORATION LTD.
REHABARI, GUWAHATI, ASSAM-781008
D.O.B. 01-11-1955
PHONE NO. 9954841507
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM,
SOCIAL WELFARE DEPARTMENT, DISPUR, GUWAHATI-781006
2:THE DIRECTOR
SENIOR CITIZEN WELFARE COUNCIL
ASSAM
SAURABH NAGAR
BELTOLA TINIALI
GUWAHATI-781006.
3:THE DISTRICT SOCIAL WELFARE -CUM-MAINTENANCE OFFICER
DIST. KAMRUP (M)
BELTOLA
GUWAHATI
ASSAM-781028
4:SRI BHASKAARJYOTI GOSWAMI
S/O SRI RAM CHANDRA GOSWAMI
PRESENTLY RESIDING IN HOUSE NO. 7. REHABARI SUHAGPUR (NEAR RJ
HOSPITAL)
Page No.# 2/20
GUWAHATI
DIST. KAMRUP (METRO)
ASSAM-781008
5:SMT. TRISHA GOSWAMI
W/O SRI BHASKARJYOTI GOSWAMI
PRESENTLY RESIDING IN HOUSEN O. 7
REHABARI
SUHAGPUR (NEAR RJ HOSPITAL)
GUWAHATI
DIST. KAMRUP (M)
ASSAM-78100
Advocate for the Petitioner : MR. B D KONWAR SR. ADV., MS S JAIN,MS M
ZOMUANPUII,MS. B SOREN,MRS J M KONWAR,MR J SINGH
Advocate for the Respondent : GA, ASSAM, MR A DEKA(R-4,5),MR A BHATRA (R-4,5),N
CHAUDHURY(R-4,5),MR. M DAS(R-4,5),MR. B D DEKA(R-4,5)
BEFORE
HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
JUDGMENT & ORDER (CAV)
Date : 14-07-2025
1. Heard Mr. B. D. Konwar, learned Senior Counsel assisted by Mrs.
J. M. Konwar, learned counsel for the petitioner. Also heard Mr. H.
Sharma, learned Additional Senior Government Advocate, Assam,
representing the respondent Nos. 1, 2 and 3 and Mr. B. D. Deka,
learned counsel for the respondent Nos. 4 and 5.
2. The petitioner herein is a senior citizen aged about 70 years.
Earlier, the petitioner served as an Estate Officer under the
Secondary Education Board of Assam (SEBA) and retired in the year
2015. It is the case of the petitioner that the petitioner owns a plot
of land measuring 3 Kathas situated at Rehabari under Village –
Sohar Ulubari Part-I of Mouza- Ulubari in the District of Kamrup (M),
Page No.# 3/20
Assam. According to the petitioner on the said plot of land, the
petitioner constructed a G+2 residential building, wholly and
exclusively financed from his own resources and also by availing
loans which he had fully repaid with interest.
3. It is his allegation that the respondent Nos. 4 and 5, who are his
son and daughter-in-law were living with him in the said house and
they subjected the petitioner to physical and verbal assault and has
also abused and harassed him. It is his further contention that in
the aforesaid backdrop of harassment, he was forced to take refuge
initially in a hotel and subsequently, he is living in a rented premise
by paying a rent of Rs. 10,000/- per month. It is his further
contention that the vehicle of the petitioner bearing Registration
No. AS-01-DJ-7026 has also been taken over by the respondent
Nos. 4 and 5.
4. In the aforesaid backdrop, the petitioner submitted an application
under The Maintenance and Welfare of Parents and Senior Citizens’
Act, 2007 (hereinafter referred to as Act, 2007) before the District
Social Welfare-cum- Maintenance Officer i.e., the respondent No. 3,
praying for maintenance and eviction of his son and daughter-in-
law from the house as recorded hereinabove. However, the said
application regarding maintenance was rejected on the ground that
the petitioner, being a retired government employee, has sufficient
means to maintain himself. So far, relating to eviction, it was
rejected being a property dispute. Being aggrieved, the present writ
petition is filed.
Page No.# 4/20
5. An affidavit has been filed by the respondent Nos. 4 and 5. In the
affidavit, the allegation of harassment and eviction of the petitioner
from his own house has been denied by the respondent Nos. 4 and
5, and they have taken a further stand that the petitioner, on his
own volition, despite their earnest request, has left his residence.
According to them, their father, who is 70 years of age, is
influenced by some tantric and has been visiting many fortune
tellers, locally and even outside the State of Assam, and the
aforesaid tantric has polluted the mind of their father. It is their
contention that their father could be suffering from some mental
infirmity coupled with paranoia, and therefore, he is having
misapprehensions about his son and daughter-in-law, which were
unfounded and baseless. According to them, they are continuously
insisting that the petitioner return home; however, due to the
undue influence of certain unscrupulous tantric and fortune tellers,
the same has not been materialized.
6. According to them, though there were mediations, the same also
failed inasmuch as on every occasion, when the date of mediation
was fixed, the petitioner refused to participate in the mediation
proceedings and took a confrontational stance. It is their further
case that they are ready to mediate with the writ petitioner for an
amicable solution of the matter, and they are always ready to
welcome their father back to his place of residence. It is admitted in
the affidavit that the house in question belongs to the petitioner,
and the respondent Nos. 4 and 5 stay with their family in the
residence of the petitioner in the capacity of son and daughter-in-
Page No.# 5/20
law.
7. So far relating to the claim of maintenance, it is the stand on
affidavit of the respondent Nos. 4 and 5 that the petitioner has
sufficient means to maintain himself, since he draws a pension of
Rs. 80,000/- per month for himself and he has also been made a
nominee his late wife’s pension amounting to Rs. 75,000/-.
According to them, besides pensionary benefits, the petitioner also
receives a huge income in the form of rent from tenants and
therefore, according to the respondent Nos. 4 and 5, the learned
Tribunal has rightly rejected the claim of maintenance.
8. Mr. B. D. Konwar, learned Senior Counsel for the petitioner based
on the aforesaid facts/materials/pleadings contends that there is no
dispute as on date, that the residence/house belongs to the
petitioner and his son and daughter-in-law, are staying in the said
residence, whereas, the petitioner is staying in a rented premises. It
is argued by Mr. Konwar, learned Senior Counsel that he has
instruction to submit from his client that the petitioner losses all his
mental peace, while staying with his son and daughter-in-law who
misbehave with him and therefore, he should be allowed to live
alone peacefully in his last days of life in his own residence without
any disturbance and harassment from his son and daughter-in-law.
9. It is his contention that even the rent from the house/shops is
being collected by the respondents Nos. 4 and 5. According to Mr.
Konwar, learned Senior Counsel, when there is an admitted position,
as admitted by the respondent Nos. 4 and 5 in the affidavit that the
Page No.# 6/20
house belongs to the petitioner, the petitioner has a right to get his
son and daughter-in-law, evicted not only in terms of the Act, 2007
and the Rules, framed thereunder, but according to him, this Court
can also exercise its power under Article 226 of the Constitution of
India, to issue such a direction, more particularly in the given facts
of the admitted position.
10. Mr. Konwar, learned Senior Counsel referring to the judgment of
the Hon’ble Apex Court in S. Vanitha -Vs- Deputy
Commissioner, Bengaluru Urban District and Others reported
in (2011) 15 SCC 730, contends that the Tribunal constituted
under Maintenance and Welfare of Parents and Senior Citizens Act,
2007, has the discretion to pass the appropriate order(s) for
protecting the life and property of parents and senior citizens which
include orders of eviction. It is his further contention that such
power has to be read within the jurisdiction of the Tribunal by
necessary implication.
11. According to him, it is not always necessary that on failure of
maintenance of the parents in terms of the financial management,
the sons and daughters can be evicted; rather in the event of not
giving proper residence, such power can be exercised since the
maintenance under the Act, 2007 includes a residence. The learned
senior counsel concludes his argument by contending that it could
not be said that the power to evict shall always be relatable to
maintenance in terms of money or that the power to evict is
relatable only to the properties absolutely transferred.
Page No.# 7/20
12. Per contra, Mr. B. D. Deka, learned counsel for the respondent
Nos. 4 and 5 contends that an order passed by the Tribunal is an
appealable order under Section 16 of the Act, 2007 and in terms of
Rule 50 of the Assam Rules, and therefore, this Court in exercise of
its power of judicial review, may not interfere with the order
impugned more particularly, for having an alternative efficacious
remedy.
13. Coming to the power of eviction, Mr. Deka, learned counsel for the
respondent No. 4 and 5, referring to Section 23 of the Act, 2007,
submits that the order of eviction as envisaged under Section 23 is
essentially relatable to refusal of maintenance and in the case in
hand, there is no dispute that their father can very well maintain
himself as he earns from his pension as well as getting rents
inasmuch as the learned Senior Counsel appearing on behalf of
their father has candidly submitted that the petitioner is not
interested in receiving any monetary maintenance from the
respondent Nos.5 & 6 and therefore, according to Mr. Deka, learned
counsel for the petitioner, in the given facts, Section 23 of the Act,
2007 cannot be made applicable in the present case, when
admittedly no maintenance is required.
14. Mr. Deka, learned counsel for the respondent Nos. 4 and 5 further
contends that Section 23 of the Act, 2007 cannot be made
applicable in the given facts of the present case in absence of any
allegation of conditional transfer of the property to the respondent
No.s4 and 5 or transfer of property to any third party by their father
Page No.# 8/20
inasmuch as it is an admitted position that the house/property in
question still stands in the name of the father. Therefore, in
absence of transfer of the property refused to the respondent Nos.
4 and 5 or any third party, the prayer of eviction under Section 23
of the Act, 2007 is righly refused.
15. Referring to the decision rendered by the Hon’ble Apex Court in
the case of Samtola Devi -Vs- State of Uttar Pradesh and
Othersreported in 2025 SCC Online SC 669, Mr. Deka, learned
counsel contends that under the Act, 2007, there is no provisions
for drawing proceeding for eviction of persons from any premises
owned or belonging to such a senior citizen in absence of transfer.
16. By an alternative argument, Mr. Deka, learned counsel, contends
that the order impugned in the proceeding is not based on
sufficient reason and therefore, if this Court pleases to issue a writ
of certiorari, the matter may be relegated to the Tribunal for fresh
disposal. It is his further contention that the petitioner has filed the
application before the Maintenance Officer and not before the
Tribunal and therefore, the order cannot also be treated as an order
of Tribunal nor such Maintenance Officer was having any authority
even under Section 23 of the Act, 2007, to issue any direction of
eviction.
17. This court has given anxious consideration to the arguments
advanced by the learned counsel for the parties and has also gone
through the materials available on record.
Page No.# 9/20
18. The issue essentially arises before this Court, is firstly, as to
whether the eviction in terms of Section 23 can be directed, only
when there is Transfer of Property with a condition that such
transfer is for providing basic amenities and basic physical need to
the transferor and there is a failure thereof on the part of the
transferee, or whether such power of eviction can also be exercised
in absence of any transfer of property but property being possessed
by person(s) who has a responsibility to maintain such senior
citizen and there is a failure on his/her part.
19. The second question that may arise in this proceeding is as to
whether irrespective of provisions of Section 23 and the power of
maintenance tribunal in terms of the Act, 2007, a Writ of
Mandamus can be issued for eviction of son/daughters/relatives of
the senior citizen, when such senior citizens wishes to be left alone
in his property without interference of such relatives, when
ownership of such property of the senior citizen is admitted by the
wards.
20. To answer the aforesaid issue, in the opinion of this Court, it will
be necessary to first consider the purpose of the enactment and the
provisions of the Act, 2007.
21. While tabling the Maintenance and Welfare of Parents and Senior
Citizens Bill, 2007 in Loksabha, the Hon’ble Union Minister of Social
Justice and Empowerment made statements, amongst others, that
the bill proposes to make it obligatory on the person who inherits
the property of their aged relatives to maintain them. It was also
Page No.# 10/20
stated that the bill seeks for institutionalization of a suitable
mechanism for the protection of the life and property of old
persons.
22. Describing aging as a major challenge and the need to give more
attention to the care and protection of older person, the statement
and object and reasons of the Act’20027 declares that, many older
persons are now forced to spend their twilight years all alone and
face emotional neglect and lack of physical and financial support
and therefore, there is a need to have simple, inexpensive and
speedy provision to claim maintenance.
23. From the scheme of the Act, 2007, more particularly from section
4, what is seen is that it places an obligation of maintenance of a
senior citizen on his or her children, grandchildren or any legal
heirs. Under the scheme of the act, the children of a senior citizen
have the obligation to maintain a senior citizen to the extent that
“he may lead a normal life”. In case of a childless senior citizen, the
obligation is on a relative who is in the process of inheritingthe
senior citizen’s property.
24. Thus, the Act, 2007 creates a legal right upon a senior citizen to
ensure his/her well-being and dignity at the hands of their children,
grandchildren and relatives. The Act 2007 further creates a legal
framework that makes it mandatory for children and other relatives
specified under section 4 to maintain their parents and senior
citizens, who are unable to maintain themselves. The Act, 2007,
under section 5 provides for a mechanism for senior citizens to seek
Page No.# 11/20
legal recourse against abuse, neglect and abandonment by their
relatives specified under section 4 of the Act. The maintenance
defined under section 2(b) is an inclusive definition that includes
“residence”.
25. Section 23 is the bone of contention in the present proceeding,
which is enumerated under Chapter V of the Act, 2007, dealing with
the protection of the life and property of senior citizens.
Section 23(1) provides that post commencement of the Act 2007, if
any property is transferred by a senior citizen with a condition that
the transferee shall provide the basic amenities and basic physical
needs to such senior citizen and the transferee refuses or fails to
provide such amenities and physical needs, such transfer is deemed
to have been made by fraud, coercion or under undue influence and
the senior citizen shall have an option to get such transfer declared
void at the hands of the tribunal constituted under the Act.2007.
Section 23(2) deals with the Right to Receive Maintenance of a
senior citizen out of an estate which was transferred, from the
transferee, if such transferee has notice of such right or the transfer
is gratuitous.
26. From the aforesaid provisions of law, this court is having no doubt
in its mind that section 23 empowers a Maintenance Tribunal to
declare certain transfers to be void, when such transfer by a senior
citizen, post commencement of the Act 2007 is conditional as to the
maintenance and well being of the transferor senior citizen. Thus,
Page No.# 12/20
the parliament in its wisdom has gone to such an extent to include
breach of condition/promise of transfer by a senior citizen under the
fold of fraud, coercion etc. Incorporation of such a provision itself
clarifies the wisdom of the parliament to protect the right of senior
citizens inasmuch as, in terms of section 3 of the Act’2007, the
provisions of the Act 2007 have an overriding effect over any law in
force, which is inconsistent with Act’2007 or any instrument.
27. The constitution bench in S. Vanitha (supra), while dealing with
the provisions of Section 23, in no unambiguous term held that sub-
section (1) of Section 23 creates a deeming fiction of law, where
the transfer of the property is subject to a condition of providing for
maintenance and that the basic needs of a senior citizen is not
fulfilled by the person, upon whom such obligation is imposed, then
at the option of the transferor, a transfer can be declared as void by
a Tribunal.
It was further clarified by the constitution bench that sub-section 2
of section 23 is broad enough also to cover a situation where the
transfer is by the senior citizen, in which event the transferee with
notice of right, or a gratuitous transferee, can be made subject to
the enforcement of right against the transferred estate.
It was further held that sub-section 2 stipulates that the right to
receive maintenance can be enforced against a gratuitous
transferee or a transferee with notice of pre pre-existing right of a
citizen to receive maintenance out of an estate, notwithstanding
who is the transferee of the estate.
Page No.# 13/20
28. After declaring the aforesaid proposition of law and keeping with
the salutary public purposes underlying the enactment of the
legislature, the Constitution Bench held that the expression
“transfer” would include not only absolute transfer of property but
also transfer of a right or interest in the property. It was also
clarified that such determination is also in consonance with the
provisions of section 2(f), which defines the expression “property”
to include rights or interests in such a property. It was also held by
the Constitution Bench that the expression “transfer”, not having
been defined specifically by the legislation, must receive an
interpretation, which would advance the benefit, object and
purpose of the provisions of the Act.’2007
29. According to the Hon’ble Apex Court, the enforcement of the
“Right to Receive Maintenance” is more comprehensive in its nature
than merely enforcing an order of maintenance passed under
section 9 of the Act. It was clarified that eviction would be an
incident of enforcement of the right to maintenance and protection,
and therefore, the Tribunals constituted under the Act, 2007 may
have the right to order an eviction, if it is necessary and expedient
to ensure the maintenance and protection of the senior citizen or
parents.
30. Thus, the principle laid down by the Hon’ble Apex Court in S.
Vanitha can be culled out in the following manner:
I. Sub-section 1 of Section 23 creates a deeming fiction of
law giving an option to a senior citizen transferor to get declared a
Page No.# 14/20transfer of property void, when such transfer was subject to a
condition of providing maintenance and basic need of the
transferor, which is not fulfilled by the person upon whom such
obligation/condition is imposed.
II. Sub-section 2 of section 23 is broad enough to cover a
situation involving a transferred estate against a third party or a
gratuitous transferee subject to notice.
III. The expression “transfer” under the Act, 2007 would include
not only the absolute transfer of property but also the transfer of a
right or interest in the property.
IV. Expression “transfer” not having been defined specifically by
the legislature, it must receive an interpretation, which would
advance the benefit, object and purpose of the provision of the Act.
V. The expression “property” under section 2(f) to include
rights or interests in such property.
VI. “Right to Receive Maintenance” is more comprehensive in
its nature than merely enforcing an order of maintenance passed
under section 9 of the Act, 2007, and includes right of residence.
VII. “Eviction” would be an incidence of enforcement of Right to
Maintenance, and the Tribunal under the Act, 2007 have the power
to order an eviction, if it is necessary and expedient to ensure
maintenance and protection of the senior citizen.
31. Thus, in the considered opinion of this court when an
Page No.# 15/20
otherwise valid transfer can be declared void, in a situation
as recorded hereinabove, there should not be any doubt
that in a case, where a senior citizen is deprived of his right
of enjoyment and possession of his property, at the hands
of his sons and his relatives, even without transfer, the
tribunal shall have power to issue direction of eviction, if it
is necessary and expedient for maintenance and protection
of a senior citizen or parents. Allowing the Children/
grandchildren/relatives to stay in such property of the
senior citizen is also required to be interpreted as a transfer
inasmuch as such an action, shall necessarily mean
permission to stay/occupy the property which in turn shall
be a transfer of his rights or interest of exclusive
enjoyment of possession in such a property, when the
senior citizen is having a right for the protection of the life
and property. Therefore, absolute transfer is not always
necessary for the exercise of the power of the Tribunal to
evict children /grandchildren/relatives, otherwise the very
purpose of the Act, 2007 and power of eviction of Tribunals
as held in S Vanitha shall be defeated.
32. Now coming to the case in hand, there is no dispute; rather it is
admitted in the affidavit in opposition filed by the son and
daughter-in-law that the residence from which the senior citizen is
seeking their eviction belongs to the senior citizen. It is also an
admitted position that the son and daughter-in-law are at present
staying in the said residence of the senior citizen, and the senior
Page No.# 16/20
citizen initially started staying in a hotel and subsequently,
continued to stay till date in a rented premises and not in his
residence. And it is his prayer that he be left alone in his residence
and without any physical and mental harassment from his son and
daughter-in-law.
33. As held by the hon’ble Apex Court in S. Vanitha (supra), that
expression transfer would include not only transfer of property but
also transfer of a right or interest in the property and that the
transfer would mean transfer of such right or interest and shall not
confine to the absolute transfer, and therefore, in the opinion of this
court, the Right to Receive Maintenance must relate to a
right to stay in his “own residence” as per the wish of the
senior citizen inasmuch as the definition of maintenance
includes a residence.
34. Therefore, as recorded hereinabove, there is an obligation, more
particularly, of the son to maintain his father, who is a senior
citizen. Such maintenance includes a “residence”. Admittedly, the
senior citizen is presently not staying in his residence, and it is his
wish that he should be allowed to stay in his residence without
interference from his son and daughter-in-law, and therefore, he
wants an eviction of his son and daughter-in-law. That being the
position, in the considered opinion of this court, a
Maintenance Tribunal shall have the right to issue an order
of eviction in terms of Section 23, by following due
procedure prescribed under the Act’ 2007, more
Page No.# 17/20
particularly, under Section 5, even if there is no absolute
transfer but such property of the senior citizen is being
possessed by his children without his consent and he is
living in a separate accommodation by paying rent.
Therefore, it cannot be said that the present one is a civil dispute
between the senior citizen and the respondent Nos. 4 and 5, to not
to entertain the claim of the petitioner to get his residence back
from his son and daughter-in-law and live alone.
35. Accordingly, the impugned order bearing
No.DSWO(K)M/193/2024/198 dated 20.07.2024/19.07.2024 stands
set aside and quashed.
36. Now coming to the second issue as regards the power of this
court to issue a Writ of Mandamus for eviction as urged by Mr. B.D.
Konwar, learned senior counsel, this court is of the unhesitant
opinion that a writ court shall not be powerless to issue such a
direction in an appropriate case inasmuch as the power of the writ
court to issue a prerogative writ cannot be taken away by any
statute.
37. In the case in hand, the dispute relates to the failure on the part
of the authorities under the Act’ 2007 to entertain the prayer of
eviction, and therefore, this court is to look into the extent of such
power and the remedy available to the petitioner.
38. The important provisions of the Act, 2007, in the present context,
are sections 4, 5, 6, 7, 8 and 16. This court has already elaborately
Page No.# 18/20
dealt with section 4 in the earlier part of this judgment.
39. In terms of section 7 of the Act, 2007, the State Government is to
constitute for each subdivision one or more tribunals to adjudicate
and decide upon the order of maintenance under section 5. It is
not in dispute that the State of Assam in exercise of power under
section 7 of the Act’ 2007, had already constituted Maintenance
Tribunals and a rule in this regard has also been framed.
40. Subsection 1 of Section 5 prescribes that a senior citizen can seek
maintenance under Section 4 before the Maintenance Tribunal.
As per the mandate of Sub Section 3 of Section 5, the Tribunal is to
issue a notice, on receipt of such an application to the Children or
relative, as the case may be, and after giving parties an opportunity
of being heard, is to hold an enquiry for determining the
maintenance.
Subsection 4 of section 5 puts an obligation upon the Tribunal that
such application be decided within a period of 90 days from the
date of its receipt, with a power to extend the said period up to
thirty days, in exceptional circumstances, after recording the
reasons for such extensions in writing.
41. Section 16 of the Act creates a right of appeal by the aggrieved
party against an order of the Tribunal before the Appellate Tribunal.
42. From the scheme of the Act, 2007 and the Assam Rules, this Court
is of the opinion that the Act, 2007 is a code, so far as the
Page No.# 19/20
same relates to the claim of maintenance by a senior
citizen. The Act, 2007 and the rules framed thereunder
provide a comprehensive and specific framework for a
senior citizen seeking maintenance. The Act‘2007 and the
rules framed thereunder also establish an Appellate tribunal for the
aggrieved parties to seek redressal. That being the position, this
court is of the opinion that, generally, this Court, in exercise of
its power of judicial review, should not readily entertain
writ petitions under Article 226 of the Constitution of India
by-passing the remedies available under the Act’ 2007.
43. However, as a note of caution, it is recorded that when there are
violation of principles of natural justice, lack of jurisdiction of the
tribunals and/or Maintenance Officers, when it is a case involving
malafides, arbitrariness or when there is clear error or violations of
statutory provisions at the hands of the tribunals and authorities
under the Act, 2007, this Court shall not be powerless to interfere in
exercise of its power under Article 226 of the Constitution of India
and for this reason this court has entertained the challenge made in
the present proceeding which involves a refusal to entertain an
application for eviction though by that time law was well settled by
the Hon’ble Apex Court in S Vanitha (supra). However, so far
relating to the prayer of the petitioner to issue a writ of mandamus
directing the eviction of the respondent Nos.4 & 5, this court for the
reasons recorded hereinabove is not inclined, inasmuch as the
parties must be given a reasonable opportunity of hearing before
the tribunal and the enquiry prescribed under sub-section 3 of
Page No.# 20/20
section 5, cannot be carried out by this court.
44. Accordingly, the present writ petition stands allowed to the
following extent:
I. The impugned order dated 20.07.2024stands set aside and
quashed, being passed without jurisdiction inasmuch as the
maintenance officer acted like the tribunal without having such
power and jurisdiction.
II. The petitioner is permitted to approach the jurisdictional
Maintenance Tribunal by filing an application under section 5 of the
Act, 2007.
III. The tribunal shall thereafter proceed with the application of
the petitioner in terms of the Act, 2007 and within the period
prescribed under sub-section 4 of section 5, by giving due regards
to the determinations made hereinabove.
IV. The parties are to bear their respective costs.
JUDGE
Comparing Assistant
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