ARINDAM MUKHERJEE, J.
1. In this writ petition the petitioner has challenged the order of the Appellate Authority under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred as to ‘the 2007 Act’), dated 02.06.2024 passed in F.No.32-TSDR/2024 by which the Appellate Authority has upheld the order passed by the Senior Citizen Welfare and Maintenance Tribunal South Andaman dated 13.05.2022. The appeal was preferred by the writ petitioner against the order of the Tribunal.
2. Before going into the correctness and validity of the order impugned for the convenience the facts of the case relevant for the purpose of adjudication are set out hereunder.
2.1 The respondent no.3, as the recorded tenant, had let out the first floor of the premises bearing survey no.2652/2/3 situated at Haddo Village under Port Blair Tehsil, South Andaman (hereinafter to as the “tenanted premises”) to the writ petitioner by virtue of two agreements, both dated 01.06.2003. The tenanted premise comprises of two portions - one space was let out for office and godown purpose under one agreement while the other portion was let out for residential purpose under the other agreement. The tenure of the two agreements were for a period of five years with effect from 01.06.2003 and ending on 01.06.2008. The rent agreed to be paid under the two agreements are respectively Rs.4000/- and Rs.5000/- per month aggregating to Rs.9000/- per month. The two agreements are unregistered documents.
2.2. Even after expiry of the two agreements on 01.06.2008, the writ petitioner did not vacate the tenanted premises and continued in possession and occupation thereof. It is the case of the writ petitioner that he continued to pay the monthly rent even after 01.06.2008 which was accepted by the respondent no.3 till upto 2015 and is not disputed by the respondent No.3.
2.3. By a registered gift deed dated 27.02.2015, the respondent no.3 gifted the tenanted premises to his son, the respondent no.2. Pursuant to such gift, it is the case of the petitioner that he paid rent to the respondent no.2, who accepted the same. There has been no break in payment of rent, according to the petitioner which fact is not in dispute.
2.4. The respondent no.2 filed a petition before the Senior Citizen Maintenance Welfare Tribunal, South Andaman (hereinafter referred to as ‘the said Tribunal’) under section 23 of the 2007 Act, inter alia seeking eviction of the writ petitioner on the ground of harassment caused to the respondent No.3, a senior citizen by the petitioner.
2.5. In the said petition, the Tribunal vide order No. 266 dated 13.05.2022 directed the writ petitioner to vacate the tenanted premises within three months from the date of communication of the order.
2.6. Challenging the said order dated 13.05.2022, the writ petitioner filed an appeal under section 28 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 and the Rules framed thereunder before the Deputy Commissioner, South Andaman, Port Blair on 03.01.2023, who is the Appellate Authority under the 2007 Act. The said appeal was dismissed by an order No.2888 dated 02.06.2024 passed by the Appellate Authority and upholding the order of the Tribunal.
2.7. Challenging the order of the Appellate Authority dated 02.06.2024, the present writ petition has been filed.
3. The main contention of the writ petitioner is that the Tribunal constituted under the 2007 Act does not have the jurisdiction to decide a landlord- tenant dispute and direct eviction of the tenant. The respondent no.2 was the applicant before the Tribunal. It is the case of the petitioner that the respondent No.3 having transferred the tenanted premises to his son being the respondent no.2 by a registered deed of gift dated 27.02.2015, the respondent no.3 at the time of filing the application before the Tribunal was neither the owner of the tenanted premises nor was he the landlord of the petitioner. No application therefore, could have been filed and maintained by the respondent no.2 under the 2007 Act before the Tribunal for and on behalf of respondent No.3. It is also the case of the petitioner that the Appellate Authority without applying his independent judicial mind, has merely subscribed the view of the Tribunal and upheld the order under appeal in a mechanical manner particularly when the jurisdiction of the Tribunal was challenged.
4. The petitioner says that section 23 of the 2007 Act contemplates a situation when the transferee of a property subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and if such a transferee refuses or fails to provide such amenities and physical needs, the transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal. The tenanted premise was transferred by the respondent no.3 to his son the respondent no.2 by a registered deed of gift. The respondent no.2, therefore, is the transferee as under the provision of section 23 of the 2007 Act while the respondent no.3 is the transferor and as such the provisions of the said section is not applicable in case of the petitioner, who is a tenant. There is no stipulation in the two agreements that the tenancy right is given to the petitioner to provide maintenance to the respondent No.3.
5. It is also the case of the writ petitioner that in view of the provisions of Andaman and Nicobar Islands Rent Control Regulation, 1964 and also under the Andaman and Nicobar Tenancy Regulation, 2023, the petitioner was a tenant on the date of filing of the application by the respondent No.2 before the Tribunal constituted under 2007 Act as he had continued in possession of the tenanted premises after expiry of the agreement and there was no eviction decree passed against him till such date. That apart the petitioner had paid rent continuously without any break to the respondent no.3 until 2015 and then to the respondent no.2. There is as such no failure to pay rent by the petitioner.
6. The writ petitioner, in support of his contention, has relied upon a Division Bench judgment of the High Court of Chhattisgarh dated 17.06.2021 passed in WPA/145/2021 (Bhisham Lal Banchhor S/o Janak Ram Banchoor vs. State of Chhattisgarh). Relying upon the said judgment, the writ petitioner submits that the Tribunal constituted under the 2007 Act, did not have the authority and jurisdiction to try out a landlord-tenant dispute filed in the garb of harassment and direct eviction.
7. The respondent nos.2 and 3, on the other hand, contend that a proceeding under the 2007 Act is maintainable against a third party when a senior citizen is harassed by a person other than his family members as held in the judgment reported in (2021) 15 SCC 730 :2020 SCC Online 1023 (S.Vanitha vs. The Deputy Commissioner, Bengaluru Urban District) which was also taken note of in Bhisham Lal, (supra) cited by the petitioner. It is further submitted by the respondent no.2 & 3 by not vacating the tenanted premises even after long expiry of the tenancy agreement, the respondent no.3 admittedly a senior citizen is harassed by the third party, i.e., the petitioner and as such an application under section 23 before the Tribunal constituted under the provision of section 7 of the 2007 Act is maintainable. The respondent Nos.2 & 3 have also cited a judgment delivered by a Coordinate Bench while holding the Circuit at Port Blair in WPA/555/2022 (Smt S.Nagammal and another vs. The Deputy Commissioner, South Andaman District and another) on 25.11.2022. Relying upon such judgment, the respondent Nos.2 & 3 say that the proceedings before the Tribunal filed by the respondent No.2 on behalf of the respondent No.3 was maintainable and the Tribunal was competent to pass an order of eviction against the petitioner.
8. After hearing the parties and considering the materials on record, the following issues fall for consideration.
"(i) Whether the Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 had the jurisdiction to receive, try and decide a landlord-tenant dispute
(ii) Whether the Appellate Authority mechanically approved the view of the Tribunal without independently judging the issue including that of jurisdiction raised before it"
Both the issues are taken up for consideration together.
9. The provision of section 23(1) of the 2007 Act clearly relates to a transfer by way of gift or otherwise. The said section contemplates a situation where the senior citizen is a transferor and the transfer is conditional on the transferee providing maintenance to the senior citizen. The transfer will be void if the transferee does not provide for maintenance of the citizen on the grounds as envisaged in the said section.
10. The provision of section 23 (2) of the 2007 Act contemplates a situation where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right.
11. In the instant case, the respondent no.3 the senior citizen entered into two tenancy agreements on 01.06.2003 with the petitioner by and under which he had let out the tenanted premises to the petitioner against payment of rent. A tenancy agreement does not contemplate a transfer and as such the same can be without a registered document unlike a lease where there is a transfer of right to enjoy such property for certain time express or implied as provided in section 105 of the Transfer of Property Act, 1882 (hereinafter referred to as the ‘1882 Act’). The letting out in a lease for a period more than one year is required to be made by a registered documents as in section 107 of the 1882 Act. In the instant case, the documents are in writing but not registered ones though it is for a period of five years i.e in excess of one year. Unless it is a registered document, the two documents have to be construed as letting out of the premises from month to month against the monthly rent. Thus, there is no transfer of right title and interest by virtue of such tenancy agreement wherein the landlord continues to remain as the owner and the tenant has only the right to occupy and use the premises against the payment of rent fixed.
12. A tenancy agreement cannot be also equated with a lease under the provision of section 105 of the 1882 Act where there is a transfer of right depend on the tenure of the lease and the registration of such documents. The tenanted premises even if it is considered to be a part of the estate belonging to the respondent no.3, a senior citizen as contemplated in section 23 (2) of the 2007 Act then also the same was transferred by the respondent No.3 by a registered deed of gift executed in favour of his son, the respondent no.2, in 2015. The respondent no.3, therefore, is the transferor while the respondent no.2 is the transferee. This does not involve a transfer of estate by a third party as contemplated under section 23(2) of the 2007 Act on the basis whereof the Hon’ble Supreme Court in S.Vanitha (supra) has observed that proceedings against a third party for maintenance can be filed and maintained. In the instant case there is no difference between the transferor and the transferee as contemplated under section 23(1) and 23(2) of the 2007 Act considered by the Supreme Court in S.Vanitha (supra).
13. Although, the writ petitioner had notice of the transfer and had paid the rent to the respondent No.2 after 2015 which was accepted by the said respondent does not having any change in situation in the context of section 23(2) of the 2007 Act. After the execution of the registered deed of gift, the respondent No.3 retains no right title and interest on the tenanted premises and as such there exists no privity of contract between the petitioner and the respondent No.3 under the two agreements which got snapped with the gift and the tenancy stood attained in favour of the respondent No.2, who had received the rent after the transfer. This also leads to an issue as to whether a new tenancy came into effect after 01.06.2008 by way of holding over and the Tribunal under 2007 Act is admittedly not clothed with to decide such issue.
14. The respondent no.3 , therefore, cannot also allege harassment of a senior citizen against the petitioner for having not vacated the tenanted premises even after expiry of the tenure of the two agreements as on the date, when the tribunal was approached. That apart he continued to receive rent even after expiry of the two agreements in 01.06.2008.
15. The petitioner, therefore, does not come within the ambit of either section 23 (1) or 23(2) of the 2007 Act either on the transferee or third party having caused harassment to the respondent no.3, a senior citizen. There also exists a specific statute governing the rights between the landlord and the tenant.
16. After 01.06.2008, the Andaman and Nicobar Islands Rent Control Regulation, 1964 was in subsistence. On being repealed by the Andaman and Nicobar Islands Tenancy Regulation, 2023, the 1964 Regulation has given way to the 2023 Regulation which also provide for a mechanism for evicting a tenant.
17. The writ petitioner also fall under the definition of tenant as in Regulation 2(i) of the 1964 Regulation and 2(r) of the 2023 Regulation. The forum for eviction of the tenant was also provided in the 1964 Regulation as also in the 2023 Regulation.
18. The ratio laid down Bhisham Lall (supra) is therefore squarely application to the facts of the instant case. If the jurisdiction of the Tribunal constituted under section 7 of the 2007 Act is expanded to include a landlord-tenant dispute within the fold of section 23 of the said Act, then the provisions of the Rent Legislation will become otiose. As held in Bhisham Lall (supra) then all commercial agreements entered by a senior citizen would come within the domain of the Tribunal under 2007 Act. This in fact will allow the Tribunal under 2007 Act to usurp the power of other competent court or Tribunals or Forum. On the other hand, the judgment of the Coordinate Bench in Smt S.Nagammal (supra) has no manner of application in the instant case as it considered a transfer to a family member, who is otherwise liable for maintenance of a senior citizen in view of the provisions of sections 2(a), 2(d), 2(g) read with 4 and 23 of the 2007 Act for which an application under section 5 of the 2007 Act is maintainable.
19. The Tribunal constituted under the 2007 Act, therefore, had no jurisdiction to receive, try and adjudicate the issue of eviction of the petitioner. The order directing eviction dated 13.05.2022 passed by the Tribunal is an order without jurisdiction and is liable being set aside.
20. The Appellate Authority as appears from the order impugned has not gone into the issue of jurisdiction though specifically raised before it. Without discussing the jurisdiction of the Tribunal constituted under 2007 Act to decide a landlord-tenant dispute, the Appellate Authority simply upheld the order of the Tribunal in a cryptic and mechanical manner. The order of the Appellate Authority, therefore, is devoid of reasons and is amenable to interference in writ jurisdiction apart from the fact that the order of the Tribunal being one without jurisdiction.
21. There is also no point in remanding the matter to the Appellate Authority by setting aside its order as the same will be a futile exercise as I have already held that the Tribunal constituted under section 7 of the 2007 Act had no jurisdiction to receive, try and determine the dispute as in the instant case under section 23 or under any other provisions of the said Act.
22. In the aforesaid facts and circumstances, the orders dated 13.05.2022 passed by the Tribunal under the 2007 Act and that dated 02.06.2024 passed by the Appellate Authority are set aside and the appeal is also disposed of. The writ petition is, accordingly, allowed. This also dispose of the proceedings before the Tribunal and the Appellate Authority.
23. Urgent Xerox certified copy of this judgment be supplied to the learned Counsel appearing for the respective parties upon compliance of usual formalities.
