Allahabad High Court
Abhishek Tiwari And Anr. vs State Of U.P. Thru. Prin. Secy. Social ... on 31 May, 2022
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Court No. - 19 Case :- WRIT - C No. - 30835 of 2021 Petitioner :- Abhishek Tiwari And Anr. Respondent :- State Of U.P. Thru. Prin. Secy. Social Welfare Lko. & Ors. Counsel for Petitioner :- Apoorva Tewari, Dharm Pravartak Mahendra Counsel for Respondent :- C.S.C.,Dr L P Misra, Jitendra Singh AND Case :- WRIT - C No. - 31573 of 2021 Petitioner :- Rahul Respondent :- State Of U.P. Thru. Prin. Secy. Social Welfare Lko And Others Counsel for Petitioner :- Bhanu Bajpai,Shishir Chandra Counsel for Respondent :- C.S.C. Hon'ble Pankaj Bhatia,J.
1. Since both the petitions have been preferred challenging the order dated 13.12.2021 hence both the said writ petitions are being decided by means of the present common order.
2. Heard Sri Anil Tiwari, learned Senior Advocate assisted by Sri Apoorva Tiwari, the counsel for the petitioner and Dr. L. P. Mishra, the counsel for the respondents.
3. The facts in brief giving rise to the present petition are that the petitioners, the son and daughter-in-law of respondent no.6 and the parents of respondent no.7 have filed the present petitions challenging the order dated 13.12.2021 passed by the Sub-Divisional Magistrate, Lucknow in exercise of powers under section 5 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as 'the Act of 2007') whereby directions have been given to vacate the residential house situate at 2/1-F Vishesh Khand, Gomti Nagar, Lucknow within a period of fifteen days from the date of passing of the said order. The second petition is filed by the son of petitioners challenging the same order. It is argued that the respondent no.6 is the absolute owner of the property no.2/1-F, Vishesh Khand Gomti Nagar, Lucknow which he acquired out of her own funds. In the said property, on the ground floor the respondent no.6 who is aged about 75 years is residing with her husband Sri Manmohan Tiwari, the petitioners who are son and the daughter in law along with the respondent no.7 who is the grand son of respondent no.6 and the son of the petitioners no.1 & 2 along with their daughter are residing on the first floor. It appears that on account of certain disputes that have arisen in between the family members, the petitioner no.1 filed a regular suit no.882 of 2019 against the respondent no.6 and Sri Manmohan Tiwari seeking a permanent injunction against the dispossession of the petitioner no.1 from the property in question. In the said suit, it has been asserted that the property has been purchased out of the sale proceeds of ancestral property of which the petitioner no.1 was also a co-parcener. The said suit is pending consideration.
4. On 30.07.2019, the respondent no.6, the mother filed a first information report under section 323, 504 and 506 IPC at P.S. Vibhuti Khand, Gomti Nagar, Lucknow against the petitioners alleging physical abuse at the hands of the children. On 20.08.2019, the respondent no.6 preferred an application purporting to be under section 21 and 22 of the 'Act of 2007' before the Sub-Divisional Magistrate, which was registered as Case No.59 of 2019. In the said application, which is annexed as Annexure no.8 to the writ petition, it was alleged that the respondent no.6 is the sole owner of the property in question and on 22.07.2019 at about 6.00 am in the morning, the petitioner no.1 along with the petitioner no.2 physically abused the respondent no.6 and tried to cause harm to her physically. With regard to the petitioner no.2, it was also alleged that she had slapped the respondent no.6. In the said application it was further expressed that from 09.05.2019 up to 15.05.2019, the respondent no.6 and her husband were occasioned with the criminal acts for which a written information was given to the Lucknow Police. She, thus, prayed that she be given the possession of the property which is being occupied by the petitioners no. 1 and 2 without her permission. The age of the respondent no.6 in the said application was disclosed as 73 years and that of her husband was disclosed as 75 years.
5. On the basis of the application filed, the Maintenance Tribunal directed the Deputy Collector to submit an inspection report after inspecting the premises in question. He was also directed to obtain the views of the neighbour to ascertain the correct facts. It was also recorded that the inspection along with the statements shall be submitted before the Tribunal on or before 13.09.2021. In terms of the said directions, a report was submitted before the Maintenance Tribunal, however, the contentions of the counsel for the petitioners is that the report was never provided to the petitioner nor were they afforded the opportunity to file the objections against the said report.
6. Considering the application and the report, the Tribunal by means of the impugned order directed the petitioners and the respondent no.7 (the grandson of the respondent no.6) to vacate the property within a period of fifteen days, failing which the Nayab Tehsildar Lucknow and the Inspector In-charge of Police Station Vibhuti Khand were directed to ensure the compliance of the said order. The said order is under challenge.
7. Sri Anil Tiwari, learned Senior Advocate assisted by Sri Apoorva Tiwari the counsel for the petitioner submits that the said order is bad in law and is liable to be set aside for the following reasons : -
(a) that the Maintenance Tribunal constituted under the Act does not have any jurisdiction to pass an order of eviction as has been done in the present case.
(b) that the order has been passed without observing the principles of natural justice. In support thereof, he cites the report which was called upon by the Tribunal and was made the basis of the order but never supplied to the petitioner.
The legal arguments as raised by Sri Tiwari shall be dealt with subsequently. In the light of the said arguments, Sri Tiwari argues that the order impugned is liable to be set aside.
8. Dr. L. P. Mishra, the counsel appearing on behalf of the respondent no.6 argues that the Tribunal is well within its power to direct the eviction under the Act in question. He further argues that the Act was framed for providing immediate relief to the senior citizens for the purposes mentioned in the Act, which includes the right to property and thus, the Tribunal was well within its rights to direct the eviction as has been done in the impugned order. He further argues that the order has been passed based upon the materials that were available with the Tribunal and the Tribunal being a quasi-judicial body is not expected to meticulously observe the procedures which are observed in a regular suit. He further argues that the dispute in between the petitioners and the respondent no.6 has emanated on various counts and litigation with regard to partition of the ancestral property is also engaging the attention of the courts. He further argues that the respondent no.6 and her husband are the owners of another property which is an ancestral property and is situate at Ganesh Ganj, which the respondent no.6 are ready to offer to the petitioners to buy peace although the respondent no.6 and her husband are under no legal obligation to provide for a residence. He also argues that the petitioners are financially independent and can easily take an accommodation on rent in any locality of the city and they cannot insist on staying in the property in question and thus, do not have any legal right to remain in possession.
9. In view of the arguments as noted above in between the parties, this court is called upon to decide whether under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, the Tribunal constituted under the Act is empowered to pass an order of eviction particularly keeping in view the Rules of 2014 framed under the State of U.P. and known as Uttar Pradesh Maintenance and Welfare of Parents and Senior Citizens Rules, 2014 and secondly whether the order impugned can be interfered with by exercising the right of judicial review in exercise of the power under Article 226 of the Constitution of India and whether this court can mould the relief keeping in view the exigencies that arise in between the parties.
10. To understand and decide the issues as arise in between the parties, it is essential to understand the Scheme of the Act of 2007. The Act of 2007 was enacted keeping in view the steady rise in the population of the older persons in India and observing that the traditional norms and values of the Indian Society envisage providing care for the aged and keeping in view the recent trends of changes in the society, witnessing a gradual decline of a joint family system resulting into the elder members not being maintained by the children contrary to the social practice that was prevalent in India. The need for enacting was also felt in view of the elders facing emotional neglect and lack of physical and financial support. The Act contains a non - obstantive clause and would thus prevail over the other laws as is clear from the plain reading of the Section 3 of the said Act.
11. Chapter II and Chapter V of the said Act are relevant for the purposes of the present dispute. Chapter II of the said Act provides for manner of grant of 'maintenance to a senior citizens who is unable to maintain himself from his own earning or out of the property owned by him. The procedure for claiming maintenance is elaborated in Section 5 and 6 of the Act. Section 7 provides for the Constitution of the Maintenance Tribunal and a duty is conferred upon the State Government to constitute a Maintenance Tribunal for each sub-division to be presided over by an officer not below the rank of Sub-Divisional Officer of a State. The Tribunal is empowered to hold an enquiry in a summary manner for giving effect to the purpose of section 5 of the Act. Section 9, 10 and 11 of the Act provide for an order of maintenance, alteration of the order of maintenance and the manner of enforcement of the order of maintenance. The Act also directs the constitution of the Appellate Tribunal, to be presided over by an officer not below the rank of District Magistrate and Section 16 of the Act provides for the appeals against an order.
12. Chapter V of the said act specifically Section 21 directs the State Government to take steps for giving wide publicity to the provisions of the Act and to take steps for sensitization in respect of the issues relating to the Act and for effective coordination in between various departments. Section 22 of the Act empowers the State Government to confer the powers and impose duty on a District Magistrate to ensure that the provisions of the Act are properly carried out and the District Magistrate is further empowered to delegate his powers upon any officer subordinate to him. Section 22 is quoted herein below :-
Section 22. Authorities who may be specified for implementing the provisions of this Act -
(1) The State Government may, confer such powers and impose such duties on a District Magistrate as may be necessary, to ensure that the provisions of this Act are properly carried out and the District Magistrate may specify the officer, subordinate to him, who shall exercise all or any of the powers, and perform all or any of the duties, so conferred or imposed and the local limits within which such powers or duties shall be carried out by the officer as may be prescribed.
(2) The State Government shall prescribe a comprehensive action plan for providing protection of life and property of senior citizens.
Section 23 of the Act provides for a situation where the transfers by the senior citizen in respect of his estate to be void in certain circumstances.
It is also essential to note the definition of 'Maintenance' as defined under section (b) of the Act , which is as under :-
2(b) "maintenance" includes provision for food, clothing, residence and medical attendance and treatment.
13. The State of U.P. in exercise of its powers under section 32 of the Act has framed the Rules of the year 2014 duly published in the U.P. Gazette on 24.02.2014. The said rules provide for steps for conciliation/settlement prior to adjudication and in the event of failure of the same provides for reference of the dispute before the Tribunal. Interestingly, Rule 21 of Chapter V of the said Rules provides for duties and the powers to be exercised by the District Magistrate and the same is quoted herein below :
Chapter V
21. Duties and Power of the District Magistrate -
(1) The District Magistrate shall perform the duties and exercise the powers mentioned in sub rules (2) and (3) so as to ensure that the provisions of the Act are properly carried out in his district.
(2) It shall be the duty of the District Magistrate to :
i. ensure that life and property of senior citizens of the district are protected and they are able to live with security and dignity;
ii. oversee and monitor the work of Maintenance Tribunals and Maintenance Officers of the district with a view to ensuring timely and fair disposal of applications for maintenance, and execution of Tribunals' orders;
iii. oversee and monitor the working of old age homes in the district so a to ensure that they conform to the standards laid down in these rule and any other guidelines and orders of the Government;
iv. ensure regular and wide publicity of the provisions of the Act, and Central and State Governments, programmes for the welfare of senior citizens;
v. encourage and co-ordinate with panchayats, municipalities, Nehru Yuva Kendras, educational institutions and especially their National Service Scheme Units, Organisations, specialists, experts activists, etc. working in the district so that their resources efforts are effectively pooled for the welfare of senior citizens of district;
vi. ensure provision of timely assistance and relief to senior citizens in the event of natural calamities and other emergencies;
vii. ensure periodic sensitisation of officers of various Departments and Local Bodies concerned with welfare of senior citizens, towards the needs of such citizens, and the duty of the officers towards the latter;
viii. review the progress of investigation and trial of cases relating to senior citizens in the district, except in cities having a Divisional Inspector General of Police.
ix. ensure that adequate number of prescribed application forms for maintenance are available in officers of common contact for citizens like Panchayats, Block Development Offices, Tahsildar Offices, District Social Welfare Offices, Collectorate, Police Station etc.;
x. promote establishment of dedicated helplines for senior citizens at district headquarters, to begin with; and xi. perform such other functions as the Government, may by order, assign to the District Magistrate in this behalf, from time to time.
(3) With a view to performing the duties mentioned in sub-rule (2), the District Magistrate shall be competent to issue such directions, not inconsistent with the Act; these rules, and general guidelines of the Government, as may be necessary, to any concerned Government or statutory agency or body working in the district, and especially to the following:
(a) Officers of the State Government in the Police, Health and Publicity Departments, and the Department dealing with welfare of senior citizens;
(b) Maintenance Tribunals and Conciliation Officers;
(c) Panchayats and Municipalities; and
(d) Educational Institution.
Certain other obligations are also cast upon the State under the Rules so framed, however, they need not detain this Court for the purposes of this case.
14. Sri Anil Tiwari, Senior Advocate appearing on behalf of the petitioners argues that the scope of Chapter II read with the definition of 'Maintenance' as defined under section 2(b) of the Act makes it clear that the Maintenance Tribunal constituted can pass an order on appropriate application of the senior citizen, who is unable to maintain himself for giving/providing maintenance and is thus confined to grant the financial benefits to the senior citizens on there being requirement for the same under the Act. He argues that the definition of the word 'maintenance' under section 2(b) includes the provision of food, clothing, residence and medical attendance and treatment and thus in light thereof, he argues that in the event a senior citizen is deprived of the said benefits, the Tribunal in exercise of the power under Chapter II can direct the children or the relatives to provide for the said benefits and no other power has been conferred upon the Tribunal including the direction for vacation of the property. He argues that in the present case, the application filed by the respondent no.6 did not disclose anywhere that the respondent no.6 was deprived of food, clothing, residence, medical attendance and treatment and thus, the application was not maintainable under Chapter II.
15. He next argues that even if, for the sake of arguments, section 22 of the Act is taken into consideration read with Rule 21, the District Magistrate is empowered only to do the acts which are required to be performed under the mandate of the Act and once again no specific power of eviction has been granted upon the District Magistrate also either under the Act or the Rules. He also submitted that the definition clause cannot be pressed into service to enlarge the scope of jurisdiction of the Maintenance Tribunal and the expression 'include' in Section 2(b) of the Act 2007 has to be construed in light of the context of the Act of 2007 particularly Section 9 of the Act 2007 which only provides for payment of maintenance in monetary terms. Lastly, he argues that the District Magistrate and the parties should be permitted to resolve the disputes to prevent any apprehension as expressed in the application. The court can direct the District Magistrate to take such steps to ensure the security of the respondent no.6 as may be deemed appropriate by this Court. He categorically states that the offer of alternate residence situated at old Ganesh Ganj is not acceptable to the petitioner as the same is located in an congested locality and has very steep stairs and the petitioner no.2 suffers from slip disk and the alternative accommodation would not be appropriate for their residence.
16. Sri Tiwari has placed reliance on the judgment of the Supreme Court in the case of S. C. Ahuja vs. Sneha Ahuja; (2021) 1 SCC 41 to argue that a married woman retains her right in the shared household even if the property is not of the joint family or even if the husband has no right in the said property. He also placed reliance on the judgment of the Supreme Court in the case of Deddappa vs. Branch Manager; (2008) 2 SCC 595 and argues that a beneficial legislation cannot grant a benefit which was not contemplated by the legislature. Similarly in the case of Teri Oat Estates (P) Ltd. vs. U.T. Chandigarh; (2004) 2 SCC 130 the Hon'ble the Apex Court held that sympathy or sentiment cannot by itself be a ground for passing an order in relation whereto the appellants fail to establish a legal right. He also placed reliance on the judgement of the Supreme Court in the case of State of Punjab vs. Surinder Kumar (1992) 1 SCC 489 to argue that High Court is circumscribed by limitations discussed and declared by judicial decisions and it cannot transgress those limits. He has also drawn my attention to the judgments of the Delhi High Court in the case of Sunny Paul and another vs. State of NCT Delhi and others in W.P. (C) No.10463 of 2015 and LPA No.205 of 2017; the judgment in the Case of Subhashini vs. Deputy Collector Kozhikode (F.B.) decided by the Full Bench by the Kerala High Court; the judgment of the Supreme Court in the case of S. Vanitha vs. Deputy Commissioner and others; (2020) SCC online SC 1023. He also drawn my attention to the judgment of the Bombay High Court and the Punjab High Court wherein the power of eviction under the Act has been upheld, however, he argues that in view of the rules framed in Delhi and in Punjab, the judgments may be justified, which is not the case in the State of U.P. as the rules are silent. He also refers to the judgment of the Punjab High Court in the case of Simrat Randhawa vs. State of Punjab decided on 23.01.2020 in CWP No.4744 of 2018, which according to the petitioners' counsel has held that the Act of 2007 does not empower the Tribunal to pass an order of eviction.
In the light of the said submissions, it is argued that the writ petition is liable to be allowed and the order impugned is liable to be set aside.
17. Dr. L. P. Mishra, the learned counsel appearing on behalf of the respondent no.6, on the other hand, has tried to justify the order by drawing my attention to the definition of 'maintenance' as contained in Section 2(b) of the Act, which includes a residence. He further drawn my attention to section 2(f) of the Act, which define the 'property' to mean property of any kind. He argues that section 3 of the Act gives overriding effect to the provisions of the Act and section 8 of the Act provides for procedure for determination in summary manner. He argues that on the plain reading of the intent of the Act, it is clear that the Act is aimed to give relief to the senior citizens who may face harassment by anyone including the children and the relatives and any interpretation, which does not let the senior citizens enjoy their property would militate against the intent of the Act, which is to ensure pleasant, healthy, secure and peaceful life in the old age.
18. He further argues that in any case, the petitioners do not have any right to reside in the property in question and they are only enjoying the property in permissive occupation rights and they cannot even be termed as a licensee as defined under Section 52 of the Easement Act. He further argues that the respondent no.6, although not under legal obligation has offered the residence to the petitioners at their ancestral house No.9 Ganesh Ganj Lucknow which is very close to the school of the children of the petitioners. He further argues that the said ancestral house is a three storied house and there is no legal or other hindrance in the petitioners' staying there. He further argues that the ground floor of the said ancestral house is vacant and keeping in view the physical condition as highlighted by the counsel for the petitioners, a ground floor portion would be more suitable than the present residence where the petitioners are staying on the first floor in the house in question.
19. Thus, in sum and substance the counsel for the respondent no.6 argues that the Tribunal is duly empowered under the Act to grant all the benefits that are included under section 2(b) of the Act which includes 'residence' also. He has also argued that the property in the context of the Act is not to be seen as bundle of legal rights and would mean something more than that including the right to stay and enjoy the property in a peaceful and congenial atmosphere which is being deprived in view of the conduct of the petitioners. He places reliance on the following judgments :
I. S. Vanitha vs. Deputy Commissioner Bengaluru Urban District and others (2020) SCC Online SC 1023 II. Anil Kumar Gupta vs. Presiding Officer Appellate Tribunal/DM Lucknow and others in W.P. Misc. Single No.19482 of 2019 decided on 18.07.2019 by this court.
III. Jyotsana Pawar and others vs. Daulat Ram Pawar and others in LAP No.155 of 2021 decided on 03.05.2021 by the Delhi High Court which has been upheld by the Hon'ble Apex Court in Special Leave to Appeal No.7070 of 2021 decided on 28.05.2021.
IV. Shweta Shetty vs. State of Maharashtra (2021) SCC online Bom 4575 in W.P. (L) No.9374 of 2020 decided on 25.11.2021 by the Bombay High Court.
V. Dinubhai Boghabhai Slonaki Vs. State of Gujarat and others (2018) 11 SCC 129.
VI. Dwarka Nath vs. Income Tax Officer, Kanpur; AIR 1966 SC 81 VII. Guru Datta Sharma vs. State of Bihar and another; AIR 1961 SC 1684 VIII. Jilubhai Nanbhai Khachar vs. State of Gujarat and another; 1995 Supp (1) SCC 596.
20. My attention has been drawn on two orders of this Court - one passed in the Case of Smt. Khushboo Shukla vs. District Magistrate Lucknow decided on 02.11.2021 and the other order passed by me in the case of Jeetu @ Amit Kumar Rawata and another in W.P. No.26686 of 2021 decided on 14.03.2022.
21. The cleavage of arguments of learned counsels is clearly visible inasmuch as the arguments of Sri Anil Tewari are that while interpreting the statute in question, this court should be inclined to accept the classical rule of interpretation where Dr. L. P. Mishra has tried to impress that the court should tilt towards the 'purposive interpretation' used for interpretation.
22. The first question to be determined is whether under the Act and the Rules framed, a remedy of eviction can be granted under the Act or not. I first refer to the judgment of the Delhi High Court passed in W.P. (C) No.10463 of 2015 (Sunny Paul and another vs. State NCT of Delhi and others) where the court was confronted with the similar issue. The High Court of Delhi noticed the judgment of the High Court of Kerala in the case of C.K. Vasu vs. The Circle Inspector of Police, WP (C) 20850 of 2011 decided on 25.05.2012 and in para 28, the following has been observed, which reads as under :
28. Ms. Manmeet Arora, learned amicus curiae submitted that the High Courts of Punjab and Haryana and Gujarat had specifically upheld the power of the Maintenance Tribunal to pass eviction orders in exercise of its jurisdiction under Section 23 of the Act, 2007. She fairly stated that a contrary view had been expressed by the High Court of Kerala in C.K. Vasu vs. The Circle Inspector of Police, WP (C) 20850 of 2011 decided on 25th May 2012 and by this Court in the case of Sanjay Walia vs. Sneha Walia (supra).
The Delhi High Court referred to the case of Sanjay Walia vs. Sneha Walia, 204 (2013) DLT 618 while analysing the provisions of the Act held that the claim for eviction by the senior citizens would be maintainable even though they are not the owners of the property in question. The court further recorded that the Tribunal constituted under the Act was empowered to give directions to remove the children from the property, if it is necessary in certain cases to ensure a normal life of the senior citizens and further recording that no rules as are required to be framed under section 22 of the Act proceeded to hold that subsequently the rules have been framed and under the Rule 22 of the said Rules so framed, the Deputy Commissioner/District Magistrate was empowered for eviction of the son and daughter or legal heirs from self acquired property on account of the non-maintenance and ill treatment and after recording, noticed the judgment of the Punjab High Court, proceeded to hold that under section 23 of the Act of 2007, the Maintenance Tribunal can issue an order of eviction to ensure that Senior Citizens live peacefully in their house without being forced to accommodate a son who physically assault and mentally harass them.
23. In the appeal preferred against the said judgment of the Delhi High Court in LPA 205 of 2017, the Division Bench once again considered the power of the Tribunal to order eviction and noticing rules framed in Delhi, upheld the judgment of the learned Single Judge.
24. The Bombay High Court in the case of Shweta Shetty vs. State of Maharashtra (supra) was also confronted with the similar issue and after noticing the various provisions of the Act and particularity the Division Bench Judgment of the Delhi High Court in the case of Sunny Paul (supra) agreed with the said view and endorsed the view of the learned Single Judge who had followed the judgment of the Delhi High Court in the case of Sunny Paul (supra) held that the eviction could be directed in terms of the Act. The Bombay High Court specifically considered the arguments of the parties to the effect that the Rules as framed in Delhi were not framed in Maharashtra which argument was repelled in para 23 as under :
23. We entirely endorse the views of the learned Single Judge and accept them as our own. We are also fully in agreement with the views of the Division Bench of the Delhi High Court in Sunny Paul v. State of NCT of Delhi, a most careful and elaborate judgment that includes what appears to us to be a comprehensive overview of the jurisprudence. That decision dismissed an appeal from an order of a learned single Judge upholding the decision of the tribunal. Mr. Thorat's efforts to contend that this result was only because there are special rules in Delhi that permit eviction does not commend itself to us at all. The Rules cannot, axiomatically, confer a power that does not extend in the statute itself. At best, the Rules may provide a procedure or may clarify, but cannot confer a substantive legal right beyond that which the Act contemplates. Therefore, the argument defeats itself : if the Delhi rules provide for eviction of a person with no right in the property to protect the interests and welfare of a senior citizen, this necessarily means that the right to order a removal of a claimant exists in the statute itself."
25. Thus the, Delhi High Court and the Bombay High Court have interpreted the Act on doctrine of 'purposive interpretation'.
26. The Supreme Court in the case of S. Vanitha vs. Deputy Commissioner (supra) considered the scope of Senior Citizens Act 2007 vis-a-vis the rights enshrined in favour of the daughter in law under the prevention of PWDV Act of 2005 and interplay in between the said statutes when it relates to the right of woman under the Domestic Violence Act, 2005. However, no finding or judgment was given with regard to the rights to direct eviction under the Senior Citizens Act 2007. In the said case, the Supreme Court mainly dealt with the scope of Section 23 of the Senior Citizens Act and thus the said judgment does not in any way decide the issue as has arisen before the Court.
27. So far so good, in the light of the judgment of the Delhi High Court and the Bombay Court, the right of eviction is implicit under the Senior Citizens Act of 2007, however, the problem arising in the present case is that the Tribunal constituted under the Act is manned by a Sub-Divisional Magistrate and not by the District Magistrate. The Rules framed in the State of U.P. are silent and do not confer any specific power upon the S.D.M. to direct eviction in the event of a contingency arising in between the parties.
28. Even if I accept the purposive interpretation, as argued by Dr. Misra, it is difficult to stretch the interpretation so much to hold that it confers the jurisdiction on a Tribunal which is not expressly even implicitly conferred under Chapter II of the statute.
29. This court in the case of Smt. Khushboo Shukla vs. District Magistrate Lucknow decided on 02.11.2021 specifically held that under the provisions of the Act of 2007, in the absence of any specific power of eviction, recourse cannot be taken for summary eviction under the Act. This court while delivering the judgment in the case of Jeetu @ Amit Kumar Rawat and another vs. Sub Divisional Magistrate, Sadar Lucknow held that the District Magistrate was empowered to pass orders taking into account the mandate of Rule 21 of the Rules and also taken into consideration the fact that the alternative accommodation was offered by the parents to the children in the said case. While delivering the judgment in the said case, the court was not apprised of all the judgments, which have been referred above, which led to passing of the order dated 14.03.2022.
30. Coming to the facts of the present case, there was no mention in the application filed by the respondents that they are being deprived of their property and the directions should be issued for eviction of the children so that the parents may be able to get the property as defined under section 2(b) of the Act, the application was simply that the petitioners herein who were residing on the first floor portion had misbehaved with the parents and thus on that ground alone, an apprehension was expressed and the eviction was sought.
31. Considering the judgments of various High Courts and the difference in the rules framed in the State of Delhi and in the State of U.P., I have no hesitation in holding that the SDM did not have any powers to direct eviction and the SDM can only direct the children or relatives to provide for residential needs of parents if such an application is moved and the Tribunal finds it appropriate to order so. However, the District Magistrate who could have exercised such powers under Rule 21 that too if the conditions were satisfied to come to a conclusion that the senior citizens are being prohibited from enjoying the property and are being deprived of the same at the hands of the children or relatives which, I fear, is not existing in the present case.
32. Conclusions :
On interpretation and analysis of the Act, my conclusion is that under Chapter II, no power is vested in the Tribunal to direct eviction simplicitor from the property at the instance of senior citizens. However, the Tribunal is fully empowered to direct the children/relatives (as the case may be) to provide for a residence on an application being filed under Chapter II by a senior citizen.
The District Magistrate is empowered under Chapter V to pass orders and take such steps as may arise for ensuring that the senior citizen may enjoy the property, such steps may include right to order eviction only as a last recourse and in relation to a specific part of the property which are in joint possession of senior citizens as well as children/relatives.
33. Coming to the relief that can be moulded/granted in the present case, the allegation of the senior citizens was that the daughter in law, the petitioner no.2 had slapped the respondent no. 6 and on several occasions had issued threats and thus, there was apprehension and fear lurking in the minds of the respondent no.6 and her husband, the appropriate relief that can be granted to the respondents in the present case, in exercise of the power under Article 226 of the Constitution of India, is to direct the District Magistrate to ensure the safety and well being of the respondent no.6 and her husband and if required to use such measures as may be deemed appropriate by the District Magistrate on a request being made by the respondent no.6.
I also deem it appropriate to injunct the petitioners herein not to go to the ground floor portion of the house and not to do any acts to cause any inconvenience to the respondent no.6 and her husband. Any violation of this directions shall be dealt with by the concerned police station, on respondent no.6 or her husband approaching them.
34. I have not gone into the second question raised by the counsel for the petitioners that the order passed is in violation of the principles of natural justice as I have already held that the Tribunal did not have the jurisdiction to direct the eviction under the Scheme of the Act.
35. In view of the directions, as given above, both the writ petitions stand disposed off.
Order Date :- 31st May, 2022 VNP/-
[ Pankaj Bhatia, J ]