Allahabad High Court
Shivani Verma vs State Of U.P. And 4 Others on 25 May, 2023
Bench: Suneet Kumar, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:117091-DB AFR Reserved Court No. - 32 Case :- WRIT - C No. - 16743 of 2023 Petitioner :- Shivani Verma Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Manoj Kumar Mishra,Tabassum Bano Counsel for Respondent :- C.S.C.,Mool Chandra Maurya Hon'ble Suneet Kumar,J.
Hon'ble Rajendra Kumar-IV,J.
Suneet Kumar, J.
1. Heard Shri Manoj Kumar Mishra, learned counsel for the petitioner, Shri Mool Chandra Maurya, learned counsel appearing for the respondent no. 4 and Shri Mukul Tripathi, learned Standing Counsel for the State-respondent.
2. Petitioner claims to be daughter-in-law of the fourth respondent and sister-in-law of fifth respondent. Fifth respondent is the son of fourth respondent.
3. Petitioner, by the instant writ petition, is challenging the order dated 6 April 2023, passed by the second respondent-District Magistrate, District-Etah and the fact finding communication dated 29 March 2023, issued by the third respondent-Sub-Divisional Magistrate Etah, District-Etah.
4. By the order dated 6 April 2023, based on the fact finding communication dated 29 March 2023, submitted by the Sub-Divisional Magistrate Etah, District-Etah, petitioner has been directed to be evicted from House-A Block, Lodhipuram, Peepal Adda, Etah, Thana-Kotwali Nagar, District-Etah. The order came to be passed on the directions of this Court in a writ petition1, filed by the fourth respondent.
5. Learned counsel for the petitioner, at the outset, has raised a question of law that under the U.P. Maintenance and Welfare of Parents and Senior Citizens Act 20072, read with, Uttar Pradesh Maintenance and Welfare of Parents and Senior Citizens Rules 20143, neither, Tribunal nor the District Magistrate, has been conferred power or authority to direct eviction/ejectment from the residence/property. Accordingly, the impugned order is a nullity in the eye of law.
6. It is further submitted that petitioner, admittedly, being the daughter-in-law of the fourth respondent, cannot be evicted from the premises as she has inherited the property after the death of her husband.
7. Learned counsel appearing for the petitioner has placed reliance on the decision rendered by the Single Judge of this Court in Abhishek Tiwari and another vs. State of U.P. and others4, and Khushboo Shukla vs. District Magistrate, Lucknow and others5, wherein, it has been categorically held that Tribunal would lack jurisdiction to direct eviction from the residence of the senior citizen. Further, reliance has been placed on S. Vanitha vs. The Deputy Commissioner, Bangaluru Urban District and others6.
8. In rebuttal, learned counsel appearing for the State-respondent and the contesting respondent submits that the expression 'maintenance' includes, residence. In the event children/relative of the senior citizen/parent residing in the premises owned/occupied by the senior citizen/parent can seek eviction of their children/relative from the premises in the event they fail to maintain the senior citizen/parent or are subjecting them to harassment due to their old age.
9. It is further submitted that in the expression 'maintenance' and 'property' employed by the Legislature has different connotation. The expression 'property' would not include the expression 'residence' for the purposes of 'maintenance', though the residential accommodation is a property. The jurisdiction in respect of maintenance for residence and property has been conferred on different authorities and for different purpose.
11. Rival submissions fall for consideration.
12. It is not in dispute that several civil suits are pending inter se parties seeking injunction in respect of the premises. The question of title and possession, is also involved in the pending suits.
13. At the outset, before adverting on merits, the question that arises for consideration is as to whether the Maintenance Tribunal, and/or, the District Magistrate has power and authority under the Act 2007, read with, Rules 2014, to direct/order eviction of children/relative of the senior citizen while adjudicating upon the order of maintenance of senior citizens/parents.
14. Act 2007, came to be enacted by the Parliament to provide for more effective provisions for the maintenance and welfare of parents and senior citizens, guaranteed and recognized under the Constitution and for matters connected therewith and incidental thereto. The statement of objects and reasons, notes that traditional norms and values of the Indian society laid stress on providing care for the elderly. However, due to withering of the joint family system, a large number of elderly are not being looked after by their family. Consequently, many older persons, particularly widowed women are now forced to spend their twilight years all alone and are exposed to emotional neglect and to lack of physical financial support. This clearly reveals that ageing has become a major social challenge and there is a need to give more attention to the care and protection for the older persons. In short, despite there being a provision for maintenance under the Code of Criminal Procedure 1973, the Act provides for institutionalization of a suitable mechanism for protection of life and property of older persons. The Act 2007 has overriding effect, notwithstanding anything inconsistent therewith, contained in any enactment other than Act 2007.
15. The Act 2007 is divided into VII chapters. Chapter II provides for maintenance of parents and senior citizens, whereas, Chapter V deals with the protection of life and property of senior citizens.
16. The question raised in the present writ petition confines to the analysis and interpretation of the provisions, in particular, under Chapter II and Chapter V of Act 2007, read with, the Rules 2014, framed thereunder.
17. Legislature has employed the expression 'senior citizen' and 'parent'. Senior citizen is a person who has attained the age of sixty years or more. [Section 2(4)]. Sub-Clause (d) of Section 2 defines 'parent' which reads thus:
" 'parent' means father or mother whether biological, adoptive or step father or step mother, as the case may be, whether or not the father or the mother is a senior citizen"
18. A parent need not be a senior citizen, but, in case a parent is unable to maintain himself/herself and unable to lead a normal life, he/she is entitled to raise a claim before the Tribunal for maintenance. In other words, a senior citizen includes a 'parent and grand-parent', but parent need not be a senior citizen.
19. Section 4 under Chapter II mandates that a senior citizen, including, parent who is unable to maintain himself from his own earning or out of the property owned by him shall be entitled to make an application under Section 5 against one or more of his children, not being a minor, for maintenance. A childless senior citizen can claim maintenance against his relative.
20. Sub-section (2) of Section 4 casts an obligation on the children or relative, as the case may be, to maintain a senior citizen which extends to the needs of such citizen so that the senior citizen may lead a normal life.
21. Sub-section (3) of Section 4 casts an obligation on the children to maintain his or her parent, i.e., either father or mother or both, as the case may be, so that such parent may lead a normal life.
22. Sub-section (4) of Section 4 provides that any person being a relative of a senior citizen and having sufficient means shall maintain such citizen provided he is in possession of the property of such senior citizen or he would inherit the property of such senior citizen/parent.
23. On careful reading of Section 4, senior citizen can claim maintenance from his children or relatives, as the case may be. A parent, whereas, has to claim maintenance from his children, not from a relative.
24. Sub-Clause (b) of Section 2 defines 'maintenance' which reads thus:
" 'maintenance' includes provision for food, clothing, residence and medical attendance and treatment."
25. The definition is inclusive and not exhaustive and, in particular, includes provision for residence. We will return to the meaning of residence later on. On conjoint reading of Section 4 along with the definition of maintenance, it is explicit that senior citizen/parent is entitled to maintenance from their children or relative, as the case may be, which extends to the needs of such senior citizen/parent so that such senior citizen or parent leads a normal life. It follows that residence is a facet of maintenance and the senior citizen may claim maintenance from his children/relative, inter alia, only of residence to their exclusion if in the opinion of the senior citizen, it extends to his needs to enable the senior citizen to lead a normal life with dignity, provided, the senior citizen is the owner of the property, whether, self acquired or ancestral. In the event the senior citizen does not own a residence, then in that event his children/relative would have to provide the residence, as the expression 'maintenance' includes residence. In cases where the children/relative are unable to provide residence to the senior citizen, for any reason whatsoever, the senior citizen would be setup in an old age home of the district by the Tribunal.
26. Only those relatives of the senior citizen is called upon to maintain senior citizen provided the relative is in possession of the property of the senior citizen or he would inherit the property of such senior citizen.
27. Relative has been defined in Sub-clause (g) of Section 2 which reads thus:
" 'relative' means any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit his property after his death"
28. On careful reading of the definition of 'relative', it employs the expression 'means' making the definition exhaustive and restricted to the 'legal heir of a childless senior citizen', in possession or would inherit his property after his death. In other words, to be a relative of a senior citizen:
(i) the senior citizen must be childless;
(ii) relative must not be a minor;
(iii) must be a legal heir of the senior citizen;
(iv) must be in possession or must inherit his property.
29. The expression used is property and not residence being claimed by the senior citizen towards maintenance. In other words, the relative who inherits any kind of property, i.e., tangible or intangible of the senior citizen would be relative of the senior citizen.
30. The senior citizen/parent would have to approach the Tribunal for maintenance by making an application as mandated under Section 5, read with, Rule 5 in Form A.
31. Sub-Clause (j) of Section 2 defines 'Tribunal' which reads thus:
" 'Tribunal' means the Maintenance Tribunal constituted under Section 7."
32. Section 6 of Act 2007, provides for jurisdiction and procedure and Section 7 provides for constitution of Maintenance Tribunal. The State Government is called upon, vide notification in the Official Gazette, to constitute for each Sub-Division one or more Tribunals, as may be specified in the notification, for the purpose of adjudicating and deciding upon the order of maintenance.
33. Section 8 provides for summary procedure. Tribunal shall have powers of a Civil Court for the purposes specified in Sub-section (2) of Section 8.
34. Section 9 provides that the Tribunal shall pass an order for maintenance if children or relative, as the case may be, neglect or refuse to maintain a senior citizen being unable to maintain himself. The maximum maintenance allowance which may be ordered by the Tribunal shall be such as may be prescribed by the State Government but shall not exceed ten thousand rupees per month. [Section 9(2)/Rule 15]
35. Section 11 provides for enforcement of order of maintenance. A maintenance order made under Act 2007, shall have same force and effect as an order passed under Chapter IX of the Code of Criminal Procedure 1973, and shall be executed in the manner prescribed for the execution of such orders.
36. On bare perusal of the provisions contained in Chapter II, read with the definition of 'maintenance', 'children', 'parent' and 'relative', it is explicitly clear that Tribunal has jurisdiction to pass order for maintenance either against the children of the senior citizen/parent or against a relative of a senior citizen, as the case may be. In other words, Tribunal lacks jurisdiction to pass order in respect of maintenance against third parties, i.e., other than children/relative of the senior citizen for maintenance or in occupation of the property of the senior citizen sought before the Tribunal for residence, or for that matter, income from a property for maintenance.
37. Before we proceed, further, it would be apposite to examine the provisions under Chapter V, of Act 2007, which provides for protection of 'life and property' of a senior citizen. The chapter does not refer either to 'parent' or 'relative'.
38. Section 22 empowers the State Government to confer such powers and impose such duties on the District Magistrate as may be necessary to ensure that the provisions of the Act 2007, is properly carried out.
39. Sub-section (2) mandates the State Government to prescribe a comprehensive action plan for providing protection of life and property of the senior citizen. Sub-Clause (2) of Section 22 is extracted:
"(2) The State Government shall prescribe a comprehensive action plan for providing protection of life and property of senior citizens."
40. Section 23 provides the circumstances under which transfer by way of gift or otherwise of a property made by a senior citizen would be void. The power to declare such transfer void at the option of the transferor has been vested with the Tribunal. In other words, on reading the provisions under Chapter V, District Magistrate has not been conferred explicit power of directing eviction of an occupant from the property of the senior citizen. On the contrary, a senior citizen who desires declaration with regard to transfer of his property being void, has to take recourse before the Tribunal. The jurisdiction of Civil Court has been barred, to which any provision of this Act 2007 applies. No injunction shall be granted by any Civil Court. [Section 27/Rule 26]
41. On the contrary, power has been conferred upon the State Government to prescribe a comprehensive action plan for providing protection of the life and property of the senior citizen. [Section 22 (2)]
42. Chapter V though provides for protection of property and life being dependent on property, amongst other things, that sustain life, but it has been left to the State Government either to make Rules under Section 32 or prescribe action plan/policy as to how and against the persons the property of the senior citizen is to be protected.
43. The expression 'life' is of a very wide connotation to include within its fold all facets, including food, health, medical treatment, clothing, residence, including, property and dignity which sustain life and fulfil the needs of the senior citizen.
44. In this backdrop, the question that arises is as to whether Tribunal or District Magistrate while exercising powers under Section 9/Section 22 under Chapter II/V respectively, and Rules 2014, framed under the Act 2007, would have powers to direct eviction of children/relatives from the premises in occupation of the senior citizen, and/or, against third party occupying the property of the senior citizen.
45. The expression 'property' has been defined under Sub-section (f) of Section 2, which reads thus:
" 'property' means property of any kind, whether movable or immovable, ancestral or self acquired, tangible or intangible and includes rights or interests in such property"
Property has been defined very widely, District Magistrate has been conferred power and authority to protect the property of the senior citizen-tangible or intangible.
46. Whereas, in Chapter II, the expression 'property' has not been employed by the Legislature, rather, in the expression 'maintenance', provision for 'residence' has been included to be part of maintenance. The expression 'residence' would also fall within the ambit of 'property'. In other words, the right to residence of a senior citizen/parent would fall within the ambit of 'maintenance', as well as, 'property'.
47. The expression 'property' would include residential property but District Magistrate lacks power and authority to pass order of maintenance to make provision for residence against children of the senior citizen or order their eviction from such property (residence). Such power has been conferred on the Tribunal under Chapter II. In other words, District Magistrate under Chapter V of Act 2007, has been conferred power and authority to protect the property of the senior citizen other than the residential property being sought by the senior citizen for maintenance. The protection of property of the senior citizen under Chapter V could be exercised against children/grand-children/relative and third party, but certainly would not include provision for residence sought by senior citizen for 'maintenance' to satisfy his needs and to lead a normal and meaningful life with dignity.
48. Before adverting further, it would be apposite to refer to the provisions of Rules 2014, enacted by the State Government in exercise of powers under Section 32 of Act 2007.
49. Sub-Clause (c) of Rule 2 defines blood-relations which reads thus:
" 'Blood Relations", in the context of a male and a female inmate, means father-daughter, mother-son and brother-sister other than cousins."
50. Schedule appended to these Rules provide for various Forms, including, the prescribed format of the application to be moved by the aggrieved senior citizen before the Tribunal under Section 5 of Act 2007, for order of maintenance. Rules 2014, provides for constitution of an Appellate Tribunal and related procedures, including, Form of appeal. The Appellate Tribunal is to be constituted in each District.
51. Chapter IV of the Rules 2014, mandates for providing the scheme for management of old age homes for indigent senior citizens.
52. Chapter V, relevant for the purposes of the instant writ petition, provides for duties and power of the District Magistrates. The relevant portion of Rule 21 of Rules 2014, is extracted:
"21. Duties and Power of the District Magistrate- (1) The District Magsitrate 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."
53. On bare perusal the Sub-rule (i) of Sub-rule (2) of Rule 21, it employs the expression 'property' which is referable to the definition of 'property' defined under Sub-clause (f) of Section 2 of Act 2007. In other words, the expression 'residence', has not been employed in the Rules 2014. Though 'property' would include residential property but would certainly not include or mean the residence sought for maintenance by the senior citizen. The provision for residence could include property owned by the senior citizen or that of his children or relative as the case that may be setup by the senior citizen before the Tribunal claiming maintenance.
54. Further, Rules 2014 does not confer on the District Magistrate explicit power of eviction of the occupants from the residence of the senior citizen, though, it confers power upon the District Magistrate to ensure that the 'life and property' of the senior citizen is protected and they are able to live securely with dignity.
55. The State Government vide Government Order dated 21 March 2006, in purported exercise of powers under Sub-section (2) of Section 22 of Act 2007, has framed policy for the senior citizen. The relevant portion reads thus:
"fo"k;% m-iz- jkT; ofj"B ukxfjd uhfr ds lEcU/k esaA egksn;] mi;ZqDr fo"k; ds lUnHkZ esa ;g dgus dk funsZ'k gqvk gS fd izns'k ds xzkeh.k o 'kgjh {ks= ds ofj"B ukxfjdksa dh leL;k,a vyx&vyx gSa] ;Fkk& LokLF; lsokvksa dh vuqiyC/krk ,oa fxjrs LokLF; ds dkj.k nSfud dk;kZsa ds lkFk&lkFk thfodksiktZu dh leL;k ifjokj ds vU; lnL;ksa ds jkstxkj gsrq ckgj pys tkus ij muds Lo;a dh ns[k&Hkky djus dh leL;k] vf/kd vk;q ,oa 'kkjhfjd vleFkZrk ds dkj.k Lo;a dh ns[k&Hkky u dj ikus dh fLFkfr esa fdlh vU; ds lgk;d u gksus dh leL;k] vf/kd mez ds dkj.k lfdz;rk ,oa xfr'khyrk de gksus ls ,dkdhiu dh leL;k bR;kfnA ofj"B ukxfjdksa dks fofHkUu lqj{kk mik;ksa ,oa dk;Zdzeksa ds ek/;e ls 'kkafriwoZd] lqjf{kr ,oa lEekutud 1- mRrj izns'k jkT; ofj"B ukxfjd uhfr ds mn~ns'; fuEuor~ gksaxs& • izns'k ds ofj"B ukxfjdksa dh lqj{kk dh mfpr ,oa izHkkoh O;oLFkk lqfuf'pr djukA • izns'k ds ofj"B ukxfjdksa dh vkfFkZd lqj{kk] vkoklh; lqfo/kk] muds lexz dY;k.k rFkk mudh vko'k;drkvksa dh iwfrZ gsrq ;Fkko';d lg;ksx dh O;oLFkk lqfuf'pr djukA"
• nqO;Zogkj ,oa 'kks"k.k ls mudh j{kk dh O;oLFkk lqfuf'pr djukA"
56. Paragraph 2.4 of the policy with regard to the 'protection of life and property' reads thus:
"ofj"B ukxfjdksa dks thou ,oa lEifRr dk Hk; izk;% rhu rjg ds O;fDr;ksa ;Fkk&Lo;a ds ifjokj ls] lsokdkjksa ls rFkk vijk/khx.k ls gksrk gSA lEifRr dh pkg esa ifjokjhx.k ls] vdsys jgus dh n'kk esa ?kjsyw ukSdjksa ls ,oa lqulku vdsys ?kjksa es jgus ds dkj.k ?kweus okys vijkf/k;ksa ls ofj"B ukxfjd vklkuh ls f'kdkj gks tkrs gSaA vr% lekt ds mDr Js.kh ds yksxksa ls ofj"B ukxfjd ,oa mudh lEifRRk dh lqj{kk fd;k tkuk vko';d gSA lM+d nq?kZVuk Hkh ofj"B ukxfjd ds fy, ?kkrd gS rFkk blls Hkh o)tuksa dh lqj{kk dh tkuh vko';d gSA ofj"B ukxfjdksa ds thou ,oa lEifRr dh lqj{kk gsrq dne mBk, tk,axsA"
57. Most of the senior citizens live with their parents. They face tussle over inheritance or division of property. Elders come under intense pressure to sell off their property or transfer ownership to their sons and are subjected to various forms of abuse if they relent. Senior citizens face harassment and threat from neighbours, encroachment of property, etc.
58. In the event, property of a senior citizen as defined under Sub-clause (f) of Section 2 of Rules 2014, is under threat from any person, District Magistrate has been conferred power to protect the life and property of the senior citizen.
59. Property can be tangible items, viz., homes, cars or appliances or it can refer to intangible items that carry the promise of future worth, such as, stock and bond certificates. Intellectual property refers to idea such as logo, design and patents.
60. Chapter V, in particular, Section 22, read with, Rule 21(2)(i) and the Government action plan/policy framed by the State Government, it mandates and directs the District Magistrate/District Police officers to protect the property of the senior citizen. Protection of property without the power and authority of eviction would render the provision meaningless. Protection of property would certainly include the power to order eviction of the occupant and restoration of the property to the senior citizen.
61. The question that follows is which kind of property and against whom. Any kind of property [Section 2(f)] in the possession or threat of dispossession by the senior citizen from the relatives, family member, helps, service providers or anti social/criminals. Family members would include children of senior citizen. The senior citizen in respect of such property other than covered under maintenance (residence), would have to approach the District Magistrate for protection.
62. In other words, the expression 'property' would not include the property claimed by the senior citizen for 'maintenance' before the Tribunal for provision of residence. Accordingly, a senior citizen seeking maintenance, other than monetary maintenance, i.e., only residence to the exclusion of his children and relative of a property in his possession or otherwise owned by him, the remedy for such property (residence) would lie before the Tribunal.
63. In this backdrop, it follows that protection of 'life and property' would confer implicit power upon the District Magistrate to evict unauthorized occupant of the property, including, children/relative or third party from the property of the senior citizen. However, Tribunal alone would have power to order eviction from the property of a senior citizen/parent on an application claiming maintenance towards residence to the exclusion of his children/grand-children.
64. The senior citizen while making an application (Form A) before the Tribunal may claim only residence as maintenance for his need to enable him to lead a normal and peaceful life, irrespective of the plea that his children/relatives are subjecting the senior citizen to harassment or not. The plea of harassment is not a prerequisite to maintain an application for an order of maintenance for provision for residence. In the event, Tribunal if satisfied on the claim of the senior citizen, it would order maintenance for residence, that would necessarily include eviction of the occupant of the residence being a consequence of the maintenance order. [Rule 14] In other words, Tribunal while exercising powers on an application seeking maintenance of residence by a senior citizen, while making order of maintenance for provision of residence, in consequence can direct eviction of the occupants, i.e., children/relative but not against minor children. An order of residence towards maintenance without passing the consequential order of eviction would render the power and authority of the Tribunal meaningless.
65. It follows that Tribunal has power to deal only with a particular kind of property (residence) sought for maintenance but lacks powers to adjudicate upon any other kind of property of the senior citizen. Such power is vested with the District Magistrate under Chapter V to protect any kind of property, movable or immovable, tangible or intangible against any person, i.e., children/relative or third party, but would not include the property sought by the senior citizen for residence towards maintenance from his children/relatives. Any other interpretation would be conferring power upon the District Magistrate to deal and adjudicate upon property sought by the senior citizen for provision of maintenance, merely for the reason that the power of eviction has to be read exclusively into the expression 'protection' of the property of senior citizen. Tribunal has a limited power while adjudicating the issue of property required only for the maintenance of the senior citizen.
66. Tribunal can be approached by senior citizen or parent, as the case may be, for maintenance. Whereas, senior citizen alone can approach the District Magistrate for protection of his life and property of any kind, other than the property (residence) involved in proceedings before the Tribunal.
67. According to Act 2007, a senior citizen who is mistreated by their children has a right to evict their children/relative from their residential house. At most, children hold the position of a licensee. The license expires the moment the senior citizen tells their children to leave the property (house). In other words, children do not have legal claim to the residential house owned by a senior citizen. It would be pertinent to argue that the senior citizen has the right to evict his children even if they have not treated him unfairly.
68. Conclusion:
(i) Chapter II and Chapter V of the Act 2007, read with, Rules 2014, operate in different areas and for different purpose, inter alia, pertaining to the property of the senior citizen.
(ii) Chapter II is confined to order of maintenance to be passed by the Tribunal, which includes, provision for residence either for the senior citizen or parent against children/relatives, but not against minor children or third party.
(iii) The Tribunal under Chapter II of the Act 2007, read with, Rules 2014, has sole jurisdiction to order maintenance, inter alia, in regard to provision of residence against children/relative. The premises/property sought for maintenance (residence) by the senior citizen, Tribunal alone would have jurisdiction. Tribunal while allowing the application of maintenance in respect of residence can order eviction from the said residential property against children/relatives of the senior citizen.
(iv) Chapter V is confined to protection of life and property of the senior citizen alone. Protection of property would also include eviction of the occupant from the tangible property. The power is conferred on the District Magistrate. The occupant could be children/relatives or third party.
(v) District Magistrate under Chapter V, however, would lack jurisdiction in respect of property, i.e., maintenance for provision for residence, to order eviction of children/relatives from such property. Though, District Magistrate would have power in respect of any other kind of property of the senior citizen, including, order of eviction therefrom.
(vi) Daughter-in-law, being relative of the senior citizen, can be evicted from the residence sought by the senior citizen for maintenance to satisfy his needs for leading a normal life. But such an order of eviction by the Tribunal is subject to the order passed by the competent Magistrate/civil court in respect of shared household under the Protection of Women from Domestic Violence Act 20057. The interest of the senior citizen and the daughter-in-law would have to be adjusted by the Tribunal having regard to their competing needs. Daughter-in-law cannot be evicted from the 'shared household' in possession or owned by the senior citizen8, though, suitable adjustment can be made by the Tribunal.
69. In view of law that has been held hereinabove, Abhishek Tiwari (supra) and Khushboo Shukla (supra), is overruled. The decision rendered in any other matter which is in contradiction to the law enunciated hereinabove shall also stand overruled.
70. Reverting to the facts of the case in hand, petitioner, the daughter-in-law of the fourth respondent, has been directed to be evicted from the premises sought by the fourth respondent for maintenance. The petitioner, herein, admittedly has not taken recourse under the Domestic Violence Act. She claims absolute title and ownership of the property in question and not shared household.
71. Tribunal, under Act 2007, can grant such remedies of maintenance as envisaged under Section 2(b), but that would not result in obviating competing remedies under other statues.
72. In the facts of the present writ petition, petitioner claims to be the owner of the property inherited from her husband. It is alleged that the house was owned and constructed by her deceased husband. The fourth respondent in a suit being Suit No. 181 of 2021, has claimed one-fourth part of the property being co-owner. It is alleged that the petitioner wants to sell the entire property to a third party. A contrary claim has been set up by the petitioner in the suit instituted by her.
73. In the circumstances, the second respondent-District Magistrate, District Etah, committed an error directing eviction of the petitioner from the entire property. Accordingly, petitioner could not have been evicted from three-fourth portion of the property, which as per the case of the fourth respondent, before the civil court, is that petitioner is co-owner of the property.
74. Proceedings by a senior citizen before the Tribunal under Act 2007, cannot be made basis for evicting the daughter-in-law or the occupant who has right and title in the property which is subject matter of maintenance.
75. The writ petition is, accordingly, allowed.
76. The impugned order dated 06 April 2023, passed by the District Magistrate, District Etah, is set aside and quashed.
77. It is provided that petitioner along with her two daughters shall continue to reside in the property in dispute on three-fourth portion and the fourth respondent would have right and access to one-fourth part of the property.
78. The contesting parties are restraint from creating third party right and interest in the property in dispute during pendency of the civil suit.
79. After decision in the civil suit or any order passed therein, reflecting upon the title and ownership of the suit property, in that event, the fourth respondent can approach the Tribunal for obtaining a fresh order towards provision for residence.
80. No cost.
Order Date :- 25. 5.2023 Mukesh Pal (Rajendra Kumar-IV, J.) (Suneet Kumar, J.)