Allahabad High Court
Smt. Sona Devi vs State Of U.P. And 6 Others on 2 January, 2024
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Neutral Citation No. - 2024:AHC:64-DB Court No. - 29 Case :- WRIT - C No. - 44386 of 2023 Petitioner :- Smt. Sona Devi Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Hari Om Sharan Tiwari,Shrikant Chaturvedi Counsel for Respondent :- C.S.C. Hon'ble Vivek Kumar Birla,J.
Hon'ble Donadi Ramesh,J.
1. Heard Sri Hari Om Sharan, learned counsel for the petitioner and Sri Ambrish Shukla, Additional Chief Standing Counsel appearing for the State respondents and perused the records.
2. The instant writ petition is filed seeking writ of mandamus commanding and directing the District Magistrate, Prayagraj to take appropriate action on the application of the petitioner dated 27.09.2023 as well as reminder dated 15.12.2023 under the Uttar Pradesh Maintenance and Welfare of Parents and Senior Citizens Rules, 2014 (hereinafter referred to as 'the Rules, 2014') within stipulated period.
3. The petitioner is old woman, aged about 62 years, and is fully protected under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as 'the Act, 2007') read with the Rules, 2014. She purchased a Plot No. 331, area 249 hectares, situated in Dabhaon, Pargana Arail, Tehsil Karchhana, District Allahabad, through a registered sale deed dated 05.03.2022. Subsequently, the petitioner's name has been mutated in the revenue record / khatauni in respect of property in dispute. The petitioner, being a bona fide purchaser of the said property, is in continuous possession. Subsequent to her purchase, one Bhoomafia Sushil Kumar Srivastava, who is a property dealer, in collusion with local police is trying to grab the said land of the petitioner. When she made an application / complaint on 27.09.2023 for redressing her grievance before the respondent No.2, no action has been initiated and the petitioner has made a reminder through registered post on 15.12.2023. Despite her repeated requests, the second respondent has not initiated any action against the private respondent under the provisions of the Act. The petitioner, left with no option, has filed the present petition.
4. Based on the above pleadings, learned counsel for the petitioner has submitted that in the identical situation, this Court has passed the orders in Writ C No. 9417 of 2023, dated 24.03.2023 and Writ-C No. 29663 of 2023, dated 18.09.2023. The petitioner, being a senior citizen, aged about more than 62 years, is fully protected under the Act, 2007 read with the Rules, 2014.
5. According to Rule 21(2)(i) and Rule 22(2) of the Rules 2014, the respondent No.2 is duty bound to protect the life and property of the petitioner but the respondent No.2 had failed to initiate action against the private respondent based on the complaint made by the petitioner. Hence, he requested for a direction to the respondent No.2 to initiate action against the respondent No.7 as per the provisions of the Act, 2007 and the Rules, 2014.
6. Reply to the above said contentions, learned Additional Chief Standing Counsel appearing on behalf of respondents has taken an objection with regard to the maintainability of the complaint made by the petitioner under the Act, 2007. The learned Additional Chief Standing Counsel has further brought to the notice of the Court that the complaint made by the petitioner on 27.09.2023 is against a private person and the contents of the said complaint cannot be adjudicated by the authorities as per the provisions of the Act, 2007. For better appreciation, the same is extracted below:-
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7. The learned Additional Chief Standing Counsel has further submitted that the averments of the above paragraphs would not attract the provisions of the Act, 2007. Here, the petitioner has made a complaint against a private person who is a land graber / land dealer, and is purely a private dispute. Hence, the authority has no power to entertain the complaint under the provisions of the Act, 2007 and the Act, 2007 does not provide to deal with the complaint against a private person.
8. Learned Additional Chief Standing Counsel further submits that the Act clearly mandates the authorities / tribunal to entertain the complaint made under Sections 4 and 5 of the Act, 2007 except that there is no provision in the Act, 2007 to initiate action against a private person. Hence, the complaint made by the petitioner is out of the jurisdiction of the authority under the provisions of the Act, 2007 and also the Rules, 2014 made thereunder. Hence, he requested for dismissal of this writ petition.
9. We heard both the counsels for the parties and perused the complaint made by the petitioner.
10. Before proceeding further, it would be appropriate to take note of Statement of Objects and Reasons of the Act, 2007 and the provisions of the Act, 2007 and the Rules, 2014 framed thereunder, which are quoted as under :-
"Statement of Objects and Reasons:- 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 and 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. Though the parents can claim maintenance under the Code of Criminal Procedure, 1973 (Act No. 2 of 1974), the procedure is both time-consuming as well as expensive. Hence, there is need to have simple, inexpensive and speedy provisions to claim maintenance for parents.
2. The Bill proposes to cast an obligation on the persons who inherit the property of their aged relatives to maintain such aged relatives and also proposes to make provisions for setting up oldage homes for providing maintenance to the indigent older persons.
The Bill further proposes to provide better medical facilities to the senior citizens and provisions for protection of their life and property.
3. The Bill, therefore, proposes to provide for :
(i) appropriate mechanism to be set up to provide need-based maintenance to the parents and senior citizens;
(ii) providing better medical facilities to senior citizens;
(iii) for institutionalisation of a suitable mechanism for protection of life and property of older persons; and
(iv) setting up of oldage homes in every district.
4. The Bill seeks to achieve the above objectives.
4. Maintenance of Parents and Senior Citizens.- (1) 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 in case of -
(i) parent or grand-parent, against one or more of his children not being a minor;
(ii) a childless senior citizen, against such of his relative referred to in clause (g) of Section 2.
(2) The obligation of the children or relative, as the case may be, to maintain a senior citizen extends to the needs of such citizen so that senior citizen may lead a normal life.
(3) The obligation of the children to maintain his or her parent extends to the needs of such parent either father or mother or both, as the case may be, so that such parent may lead a normal life.
(4) Any person being a relative of a senior citizen and having sufficient means shall maintain such senior citizen provided he is in possession of the property of such senior citizen or he would inherit the property of such senior citizen:
Provided that where more than one relatives are entitled to inherit the property of a senior citizen, the maintenance shall be payable by such relative in the proportion in which they would inherit his property.
5. Application for maintenance.- (1) An application for maintenance under Section 4, may be made -
(a) by a senior citizen or a parent, as the case may be; or
(b) if he is incapable, by any other person or organization authorized by him; or
(c) the Tribunal may take cognizance suo motu Explanation.- For the purposes of this section "organization" means any voluntary association registered under the Societies Registration Act, 1860 (21 of 1860) or any other law for the time being in force.
(2) The Tribunal may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this section, order such children or relative to make a monthly allowance for the interim maintenance of such senior citizen including parent and to pay the same to such senior citizen including parent as the Tribunal may from time to time direct.
(3) On receipt of an application for maintenance under sub-section(1), after giving notice of the application to the children or relative and after giving the parties an opportunity of being heard, hold an inquiry for determining the amount of maintenance.
(4) An application filed under sub-section (2) for the monthly allowance for the maintenance and expenses for proceeding shall be disposed of within ninety days from the date of the service of notice of the application to such person:
Provided that the Tribunal may extend the said period, once for a maximum period of thirty days in exceptional circumstances for reasons to be recorded in writing.
(5) An application for maintenance under sub-section (1) may be filed against one or more persons:
Provided that such children or relative may implead the other person liable to maintain parent in the application for maintenance.
(6) Where a maintenance order was made against more than one person, the death of one of them does not affect the liability of others to continue paying maintenance.
(7) Any such allowance for the maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or expenses of proceeding, as the case may be.
(8) If, children or relative so ordered fail, without sufficient cause to comply with the order, any such Tribunal may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person for the whole, or any part of each month's allowance for the maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made whichever is earlier:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Tribunal to levy such amount within a period of three months from the date on which it became due.
6. Jurisdiction and Procedure.- (1) The proceedings under Section 5 may be taken against any children or relative in any District -
(a) where he resides or last resided; or
(b) where children or relative resides.
(2) On receipt of the application under Section 5, the Tribunal shall issue a process for procuring the presence of children or relative against whom the application is filed.
(3) For securing the attendance of children or relative the Tribunal shall have the power of a Judicial Magistrate of first class as provided under the Code of Criminal Procedure, 1973 (2 of 1974).
(4) All evidence to such proceedings shall be taken in the presence of the children or relative against whom an order for payment of maintenance is proposed to be made, and shall be recorded in the manner prescribed for summons cases:
Provided that if the Tribunal is satisfied that the children or relative against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Tribunal, the Tribunal may proceed to hear and determine the case ex parte.
(5) Where the children or relative is residing out of India, the summons shall be served by the Tribunal through such authority, as the Central Government may by notification in the Official Gazette, specify in this behalf.
(6) The Tribunal before hearing an application under Section 5 may,. refer the same to a Conciliation Officer and such Conciliation Officer shall submit his findings within one month and if amicable settlement has been arrived at, the Tribunal shall pass an order to that effect.
Explanation.- For the purposes of this sub-section "Conciliation Officer" means any person or representative of an organization referred to in Explanation to sub-section(1) of Section 5 or the Maintenance Officers designated by the State Government under sub-section (1) of Section 18 or any other person nominated by the Tribunal for this purpose.
21. Measures for publicity, awareness, etc., for welfare of senior citizens.-The State Government shall, take all measures to ensure that -
(i) the provisions of this Act are given wide publicity through public media including the television, radio and the print, at regular intervals;
(ii) the Central Government and State Government Officers, including the police officers and the members of the judicial service, are given periodic sensitization and awareness training on the issues relating to this Act;
(iii) effective co-ordination between the services provided by the concerned Ministries or Departments dealing with law, home affairs, health and welfare, to address the issues relating to the welfare of the senior citizens and periodical review of the same is conducted.
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.
23. Transfer of property to be void in certain circumstances. (1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said 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.
(2) 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.
(3) If any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organization referred to in Explanation to sub-section (1) of section 5.
Rules 21 (1) of the Rules, 2014.-(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.
Rules 22 (1) of the Rules, 2014. -(1) The District Superintendent of Police and in the case of cities having Divisional Inspector General of Police, such Divisional Inspector General of Police shall take all necessary steps, subject to such guidelines as the Government may issue from time to time for the protection of life and property of senior citizens."
11. Based on the provisions of the Act and Rules, the principles of statutory interpretation have been extensively considered by this Court in Criminal Misc. Application U/S 372 Cr.P.C. (Leave to Appeal) No.329 of 2012 (Prithvi Singh v. State of U.P.) in paragraph nos.10 to 22 and 40, thus the same are extracted hereinunder:-
"10. Before proceeding further it would be appropriate to take note of the principles of statutory interpretation as the decision of the question involved in the present case is directly dependant on the interpretation of the statutory provisions. For this purpose we have taken help of the book ''Principles of Statutory Interpretation' ''13th Edition, 2012' written by Justice G. P. Singh (Former Justice of M. P. High Court).
11. One of the main basic principles of interpretation is that if meaning of words of statute are plain, effect must be given to it irrespective of consequences.
12. In Nelson Motis vs. Union of India, AIR 1992 SC 1981 it has been observed that when the words of a statute are clear, plain or unambiguous, i.e., they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of consequences.
13. In Kanailal Sur vs. Paramnidhi Sadhu Khan, AIR 1957 SC 907 it was observed that if the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act.
14. In State of Uttar Pradesh vs. Vijay Anand Maharaj, AIR 1963 SC 946 it was held that when a language is plain and unambiguous and admits of only one meaning no question of construction of a statute arises, for the Act speaks for itself.
15. It is also a guiding rule of interpretation that language of the statute should be read as it is.
16. In Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd vs. Custodian of Vested Forests, AIR 1990 SC 1747 it was observed that the intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said.
17. In Raghunath Rai Bareja vs. Punjab National Bank, (2007) 2 SCC 230 Supreme Court held that departure from the literal rule should be done only in very rare cases and ordinarily there should be judicial restraint in this connection.
18. Insofar as rule of ''regard to consequences' is concerned, the aforesaid book clearly provides that this rule has no application when the words are acceptable to only one meaning and no alternate construction is reasonably open. A reference may be made in this regard with citations noted above which provides that if meaning is plain, effect must be given to it irrespective of consequences.
19. In Shah Bhojraj Kuverji Oil Mills and Ginning Factory vs. Subhash Chandra Yograj Sinha, AIR 1961 SC 1596 it was observed that as a general rule, a ''proviso' is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a ''proviso' is not interpreted as stating a general rule.
20. However, in Chapter 3 of the aforesaid book at page 206 it has been observed that the insertion of a ''proviso' by the draftsman is not always strictly adhered to its legitimate use and at times a section worded as a ''proviso' may wholly or partly be in substance a fresh enactment adding to and not merely excepting something out of or qualifying what goes before. A large number of rulings, including the English Law, have been noted in support of the aforesaid observation. A reference in this regard may be made to one of such rulings, namely, Motiram Ghelabhai (deceased L.R.) vs. Jagan Nagar (deceased L.Rs.) and others, AIR 1985 SC 709.
21. Purposes of a ''proviso' were aptly summarised in Sundaram Pillai vs. Pattabiraman, (1985) 1 SCC 591, wherein it was observed that by and large a proviso may serve the following four different purposes:-
"(1) qualifying or excepting certain provisions from the main enactment;
(2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;
(3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and (4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision."
(emphasis supplied)
22. However, it was observed in the aforesaid book that the above summary cannot, however, be taken as exhaustive and ultimately a ''proviso' like any other enactment ought to be construed upon its terms.
40. As already noticed, the golden rule of interpretation is that if the meaning of words of a statute are plain, effect must be given irrespective of the consequences. We may refer to the judgments of the Supreme Court in cases of Nelson Motis (supra), Kanailal Sur (supra), Vijay Anand Maharaj (supra), Gwalior Rayan Silk (supra), Raghunath Rai Bareja (supra)."
12. Taking from the above observations, though the learned counsel for the petitioner has relied on Rule 21 (1) and 22 (1) of the Rules, 2014 but on perusal of the complaint in consonance with Sections 4, 5 and 6 of the Act, 2007, which mandates the authority of the Tribunal to decide the grievance of the senior citizens from their legal heirs and relatives, nowhere it has given power to the authority to entertain a complaint against a private person. Even Rule 22 (1) of the Rules, 2014 has given powers to the District Superintendent of Police / Divisional Inspector General of Police to take all necessary steps subject to such guidelines as the Government may issue from time to time for protection of life and property of the senior citizens but there is no specific Rule to entertain any complaint against a private person.
13. In the instant case, no doubt, the petitioner being senior citizen has purchased the property in 2022 and the complaint itself is moved against private person stating therein that he is trying to grab the subject property. If it is so, the petitioner has other efficacious remedy under the provisions of the Civil Procedure Code and the Criminal Procedure Code but not under the provisions of the Act, 2007.
14. In view of the backdrop of the facts of this case, it appears that the complaint made by the petitioner on 27.09.2023 does not fall within the jurisdiction of the authority of the second respondent under the provisions of the Act, 2007. Therefore, we hold that the complaint made by the petitioner would not come within the purview of the provisions of the Act, 2007. Consequently, no such mandamus / directions as prayed for can be granted.
15. Accordingly, the instant petition is dismissed.
Order Date :- 2.1.2024 Akram/Abhishek/rkg