Tarun Saxena Vs Union Of India & Ors: An Advocate Has The Right To Represent Parties Before The Tribunal Under The Maintenance And Welfare Of Parents And Senior Citizens Act, 2007

Date of Judgment:
16 April 2021

Judge:
Justice Prathiba M. Singh

Parties:
Taruna Saxena (Petitioner)
Union of India & Ors. (Respondents

SUBJECTS

The grievances raised in this case were-

1. That advocates were not permitted to appear before the Tribunal
2. That evidence was not being permitted before the Tribunal

OVERVIEW

• A petition was filed for challenging the order passed by the ADM, Karkardooma Court, under the Maintenance and Welfare of Parents andSenior Citizens Act, 2007.
• Under the order dated 26th March 2021, the ADM had merely directed the filing of the applications by the parties.
• The prayer of the petitioner, in this case, was two-fold:-

1. That advocates were not being permitted to appear before the Tribunal.
2. That evidence was not being permitted before the Tribunal.

• As far as the first issue was concerned, the counsel for the petitioner relied upon the judgment titled Adv. K.G. Suresh v. Union of India & Ors. The Kerala High Court has held the bar on legal representation as unconstitutional.
• As far as the second issue is concerned, the counsel for the Petitioner submitted that under Section 8(3) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, the Tribunal has to permit the leading of evidence in support of the parties.
• The counsel appearing for the UOI submitted that under Section 8, the Tribunal follows a summary procedure. The discretion is left to the Tribunal considering the facts and circumstances of each case.

Adv KG Suresh Vs The Union of India and Ors

• The petitioner challenged the validity of Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
• He asserted that the provision is against the authority or right conferred by Section 30 of the Advocates Act, 1961.
• The petitioner stated that Section 30 of the Advocates Act, 1961 enables the lawyers to practice in the courts across the country, irrespective of their enrolment in any Bar Council, without the need to transfer the license to their desired States.
• He further stated that an advocate and legal practitioner is entitled as of right to appear before the Tribunal.
• The Union of India stated that the engagement of legal practitioners to represent cases will extend the matter and there will be more harassment for the parents in their last phase of life as judgement will be delayed, which is unacceptable.
• The Court rejected the contention of the Union of India and stated that mere engagement of a lawyer would not delay the process of adjudication of a dispute before the Maintenance Tribunal.
• The Court concluded that the petitioner has a right to represent the parties before the Tribunal/Appellate Tribunal/Court.

LEGAL PROVISIONS

• Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007- Right to legal representation.
• Section 30 of the Advocates Act, 1961- Right of advocates to practice

JUDGMENT ANALYSIS

• The Court noted that Section 17 has been declared ultra vires of Section 30 of the Advocates Act, 1961. It means that an advocate would have the right to represent parties before the Tribunal.
• Further, it analyzed Section 8 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and made the following two observations-

a) The procedure contemplated under Section 8 is a summary procedure.
b) It is an inquiry and not an adjudication, which is usually done by the Courts.

• The Court stated that the discretion vests with the Tribunal to adopt the procedure as might be suitable to the facts and circumstances of each case.
• The summary procedure cannot be allowed to be converted into a long-drawn trial and adjudication.
• The Court noted that the Tribunal has allowed parties to file their applications in respect of any evidence. Thus, the application would be considered in accordance with the law.
• The petition, along with all pending applications were disposed of.

CONCLUSION

Section 17 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 has been declared ultra vires of Section 30 of the Advocates Act, 1961. Lawyers are fully entitled to represent parties in matters before the Tribunals under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

The term 'ultra vires' means beyond the power. Any acts that lie beyond the authority to perform areultra vires acts.

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