Allahabad High Court
Majeedan vs State Of U.P. Thru. Its Prin. Secy. Home & ... on 27 November, 2014
Bench: Krishna Murari, Rakesh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 7 Case :- MISC. BENCH No. - 11773 of 2014 Petitioner :- Majeedan Respondent :- State Of U.P. Thru. Its Prin. Secy. Home & 4 Ors. Counsel for Petitioner :- Sikandar Zulqarnain Khan Counsel for Respondent :- C.S.C. Hon'ble Krishna Murari,J.
Hon'ble Rakesh Srivastava,J.
Petitioner who is aged about 77 years old has approached this Court with the grievance that she and her 80 years old husband are facing harassment at the hands of respondent no. 5 who is none other than her son. It has been alleged that she purchased a land by means of a registered sale deed and constructed a house but the respondent no. 5 assaulted her and her husband and forcibly ousted them from the residential accommodation and she along with her husband has been forced to live in open sky and is facing miseries and cold without any medical treatment and arrangement for food etc. and their life has become hell.
In the background of the above facts, a prayer has been made to command the opposite parties no. 2, 3 & 4, the Senior Superintendent of Police, Lucknow, Deputy Superintendent (Circle Officer), Circle Chowk, Lucknow and Station Officer, P.S. Thakurganj, district Lucknow to remove the respondent no. 5 from her residential house and to facilitate their possession of the said house.
We are conscious of the fact that the District Magistrate or the Police authorities do not have any lawful authority in this regard and the petitioner ultimately for enforcement of her legal rights shall have to undertake appropriate proceedings before a competent court of law and a writ petition under Article 226 of the Constitution of India cannot be an appropriate remedy in the facts and circumstances of the case.
However, learned counsel for the petitioner has placed before us the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 enacted by the Parliament. Section 4 of the Act puts an obligation to maintain a senior citizen including parents by the relation specified therein. Section 5 of the Act makes a provision for an application for maintenance before the Tribunal. Section 7 of the Act prescribes that the State Government within a period of six months from the date of commencement of the Act constitutes one or more Tribunals for the purpose of entertaining and adjudicating claims for maintenance under Section 5 of the Act. Section 8 of the Act vests the Tribunal to be constituted by the State Government with the powers of the civil court. Monthly allowance of maintenance can be awarded by the Tribunal exercising power conferred by Section 9 of the Act subject to maximum of Rs.10,000/- per month. Section 15 of the said Act also provides a provision for constitution of an Appellate Tribunal in each district by the State Government. Under Section 18 the State Government can designate the District Social Welfare Officer or any other officer not below his rank as a Maintenance Officer. Section 22 of the Act vests the State Government with the power to impose such duties upon a District Magistrate of the District as may be found necessary to ensure carrying out of the provision of the Act. The District Magistrate has been vested with the power to delegate the said power specifying an officer, sub-ordinate to him to exercise all or any of the powers, and perform all the duties so conferred and imposed.
We find it really surprising that though the State Government vide notification dated 25-09-2012 published in U.P. Gazette Part I dated 29-09-2012 has notified the provisions of the Act, 2007 to be enforced in the State of Uttar Pradesh with effect from the date of issuance of the notification but despite after expiry of more than two years, neither the Maintenance Officer has been appointed nor the Tribunal or the Appellate Tribunal has been constituted. However, we do not propose to enter into this issue any further except for recording our displeasure on the inaction on the part of the State Government, since the issue in this regard is being monitored by another Division Bench in Writ - C No. 41028 of 2014 ( Shree Krishna Agarwal vs. State of U.P. and 4 others) wherein the State Government has been directed to file its counter affidavit in regard to the steps which have been taken to implement the provision of the Act.
The petitioner, who is an old lady, cannot be left in lurch because of total inaction on the part of the State Government. Even though the relief which has been claimed by the petitioner is not normally entertained in writ petition but in the facts and circumstances, which have been narrated hereinabove, in order to secure the ends of justice, intervention of this Court becomes necessary. Thus we give liberty to the petitioner to make a representation raising her grievances before the District Magistrate, Lucknow annexing therewith the relevant documents to support her claim with respect to the ownership and title over the residential house along with a certified copy of this order within a period of period of ten days from today with the direction to the District Magistrate, Lucknow that in case such a representation is made, he shall investigate into the grievance of the petitioner and in case the allegations are found to be true, he shall ensure necessary steps for restoration of possession of the petitioner over the disputed property.
The above directions have been issued by us only as an interim measure. to secure the ends of justice The decision may be taken by the District Magistrate within a period of two weeks from the date of making of the application by the petitioner and forward the action taken report to this Court. However, for a final adjudication in the matte, notice to respondent no. 5 is required. As such, we direct the office to issue notice to the respondent no. 5 for appearance in this Court on 19th December, 2014.
Notice shall be served through the Chief Judicial Magistrate, Lucknow who shall, after effecting service, forward a report to this Court.
List on 19th December, 2014.
Order Date :- 27.11.2014 nd