Allahabad High Court
Ms. Swaraj Varun And Another vs State Of U.P. And 4 Others on 21 October, 2020
Equivalent citations: AIR 2021 ALLAHABAD 45, AIRONLINE 2020 ALL 2537
Bench: Sunita Agarwal, Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- WRIT - C No. - 23223 of 2019 Petitioner :- Ms. Swaraj Varun And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Sudhir Bharti Counsel for Respondent :- C.S.C.,Abhishek Gupta Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Jayant Banerji,J.
Heard Sri H.N. Singh learned Senior Advocate assisted by Sri Sudhir Bharti learned counsel for the petitioners and Sri Abhishek Gupta learned counsel for the respondent.
This writ petition is directed against the order dated 28.6.2019 passed by the District Magistrate, Gautam Budh Nagar, whereby he has rejected the application moved by petitioner no. 1 namely Ms. Swaraj Varun under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as "the Senior Citizens Act, 2007"). The petitioner no. 1 is unmarried daughter of petitioner no. 2, whereas respondent no. 5 is his daughter-in-law.
The aforesaid order of rejection is being challenged on the ground that the petitioner no. 1 is a senior citizen aged about 60 years, whereas petitioner no. 2 (father of petitioner no. 1) is 93 years old. The petitioner no. 2 is incapable to move freely due to fracture of his both hips. The brother of petitioner no. 1, i.e. husband of respondent no. 5 had committed suicide on 21.4.2004. The allegations are that her brother (husband of respondent no. 5) had died due to cruelty and atrocities committed by her sister-in-law.
On 3.3.2019, respondent no. 5 threatened and abused both the petitioners and physically assaulted petitioner no. 1 with the help of her relatives. A first information report dated 4.3.2019 was lodged by the petitioner no. 1/applicant against respondent no. 5. On 3.3.2019 itself, at about 21:07 Hours, the Station House Officer of the Police Station, Sector 20, Noida, Gautam Budh Nagar came with respondent no. 5 to the house of the petitioners and forced the petitioner no. 1 to give keys of the main gate of the house-in-question to respondent no. 5. As a result of the aforesaid, the applicant/petitioner no. 1 was constrained to file an application under Rule 21 of the Uttar Pradesh Maintenance and Welfare of Parents and Senior Citizens Rules, 2014 (In short as "the Rules, 2014") for eviction of respondent no. 5 and her two sons from the house-in-question.
The submission of learned counsel for the petitioners is that under Rule 21 of the Rules, 2014, it is the duty of the District Magistrate to ensure that life and property of senior citizens of the District (area of his jurisdiction) are protected and they are able to live with security and dignity. Section 5 of the Senior Citizens Act, 2007 provides that application under Section 4 of the Act may be made by a senior citizen or any person or organization authorized by him. Section 6 deals with the jurisdiction of the Tribunal which conducts the proceeding under Section 5 of the Act against any children or relative. Section 21 as contained in Chapter V and Section 32 as contained in Chapter VII of the Senior Citizens Act, 2007 empowers the State Government to take all measures and to make rule, to ensure protection of life and property of senior citizens, for carrying out the purposes of the Act.
The submission is that the Senior Citizens Act, 2007 has been enacted not only to provide for effective provisions for maintenance and welfare of senior citizens guaranteed under the Constitution of India, but also to protect their property to meet its objects. Rule 21 of the Rules, 2014 framed in exercise of the powers conferred under Section 32 of the Senior Citizens Act, 2007 enumerates duties and powers of the District Magistrate in the area of his jurisdiction and obligates to oversee and monitor the work of Maintenance Tribunal of the district. Rule 21 sub-rule (2)(i) mandates the District Magistrate to take all steps to protect the life and property of senior citizens of the district.
In light of the above provisions, the District Magistrate has committed a serious error of law in rejecting the application moved by the petitioner no. 1 as not maintainable, while redirecting her to move an application before the Maintenance Tribunal. The observation in the order of the District Magistrate that it was only empowered to decide appeals against the order of the Maintenance Tribunal is based on misreading of the provisions. The refusal for eviction of respondent no. 5 from the self-acquired house of the petitioners is illegal. The application filed by petitioner no. 1 and the affidavit of petitioner no. 2 have been placed before us to assert that petitioner no. 2 had authorized his daughter (petitioner no. 1) to move application seeking eviction of respondent no. 5 and stated in his affidavit that respondent no. 5 with her sons had never been residing in the house-in-question and further that he does not wish them to reside therein.
Learned Standing Counsel defending the order passed by the District Magistrate, however, states that the petitioners cannot get any relief under the Senior Citizens Act, inasmuch as, the dispute essentially pertains to a gift deed dated 24.1.2019 executed by petitioner no. 2 in favour of petitioner no. 1. It is not a case where maintenance has been sought by the senior citizen from respondent no. 5. The appropriate remedy for the petitioners is to file a civil suit or to participate in the pending suit to ventilate their grievances.
In rejoinder, learned counsel for the petitioners vehemently assailing the submissions of learned Standing Counsel submits that the provisions of the Act, 2007 has been given overriding effect on any other Act or any instrument which are inconsistent with the provisions of the present Act. Placing Section 27 of the Senior Citizens Act, 2007, it is urged that the jurisdiction of Civil Courts in respect of any matter under the Act is specifically barred. The petitioners, therefore, cannot be relegated to file a civil suit.
Reliance is placed on the decision of this Court in Waqf Alalaulad and another vs. M/s. Sundardas Daulatram and sons report in 1996 (1) ARC 578 to assert that writ can be issued to evict a trespasser from the disputed property.
Having heard learned counsel for the parties and perused the record, before entering into the controversy at hand, we deem it appropriate to go through the provisions of the Senior Citizens Act, 2007 and the Rules, 2014 framed thereunder, in order to understand the object and purpose of the said provisions and the powers of the District Magistrate to act upon such an application. The short title of the Act is "Maintenance and Welfare of Parents and Senior Citizens Act, 2007". The words "maintenance" and "welfare" both have been defined in sub-sections (b) and (k) of Section 2 as under:-
"(b) "maintenance" includes provision for food, clothing, residence and medical attendance and treatment;
(k) "welfare" means provision for food, health care, recreation centres and other amenities necessary for the senior citizens."
Senior citizen within the meaning of the Act is a person who is a citizen of India and has attained the age of sixty years or above. Sections 4 to 18 as contained in Chapter II of the Senior Citizens Act, 2007 deal with the issue of 'maintenance of parents and senior citizens' and provide for complete procedure for moving an application for maintenance under Section 4; jurisdiction and Constitution of the Maintenance Tribunal and the procedure to deal with the same as also for enforcement of the order of maintenance. Sections 15 and 16 provide for Constitution of Appellate Tribunal and the procedure to deal with an appeal against the order of a Tribunal, filed by an aggrieved person. Under Chapter II, an application for maintenance may be made either by a senior citizen or parent, as the case may be; or if he is incapable, by any person or organization authorized by him; or the Tribunal may take cognizance suo motu.
The jurisdiction of the Maintenance Tribunal is confined to the District concerned. The enquiry held by the Tribunal under Section 5 of the Act is a summary enquiry, wherein the Tribunal shall exercise the powers of the Civil Court for the purpose enumerated in sub-section (2) of Section 8. Section 9 empowers the Tribunal to make an order of monthly allowance at such monthly rate for the maintenance of such senior citizen, as it may deem fit, and to pay the same to such senior citizen for the time period it directs on being satisfied that the children or relatives, as the case may be, neglect or refuse to maintain him a senior citizen who is unable to maintain himself. Section 14 even empowers the Tribunal to award simple interest in addition to the amount of maintenance upto 18%. Proviso to Section 18 makes it clear that the application for maintenance under the Senior Citizens Act, 2007 can be moved as the substitute to application for maintenance under Chapter IX of the Code of Criminal Procedure, 1973 and in case, any such application is pending before the criminal court, the same shall be allowed to be withdrawn on the request of the person concerned.
Chapter III obliges the State Government to establish and maintain Old Age home in such number at such places, as it may deem necessary and to prescribe a scheme for management of such oldage homes. Chapter IV mandates the State Government to make arrangements in the Government hospitals or Hospitals, clinics funded fully or partially by it for medical care of senior citizens. For protection of life and property of senior citizens, provisions are made under Chapter V which contain Sections 21 to 23.
Section 21 mandates the State Government to take all measures to give effect to the provisions of the Act by giving wide publicity through public media and organizing sensitization and awareness training on the issues relating to this Act and also for effective co-ordination between the services provided by the concerned Ministries or Departments of the Government to address the issues relating to the welfare of the senior citizens.
The duty to give effect to the provisions of the Act and to exercise all necessary powers in that regard, has been assigned to the District Magistrate within the area of his jurisdiction. Section 23 confers right on the senior citizen to receive maintenance from the transferee of his property whether transfer by way of gift or otherwise is made after the commencement of this Act. In case of refusal or failure of the transferee to provide for the basic amenities and physical needs of the senior citizens, the transfer may be declared void by the Tribunal at the option of the transferor/senior citizen. The right to receive maintenance out of an estate or a part thereof, transferred by a senior citizen, as maintenance from the transferee is given under sub-section (2) of Section 23. Section 24 imposes a criminal liability on any person who is having care or protection of any senior citizen and intentionally abandons him. Under Section 22 the bar of jurisdiction of Civil Court is in respect of any matter to which the provisions of this Act applies.
A plain and simple reading of the whole Statute applying the golden rule of construction shows that the words "maintenance" and "welfare" of senior citizens used in the Statute at different places has to be given the same meaning as provided, to these words, in the definition clause.
The "maintenance" as defined in Clause 2(b) includes making provision for food, clothing, residence and medical attendance and treatment of senior citizen. The "welfare" means making provision for food, health care, recreation centres and other amenities necessary for the senior citizens. For providing "maintenance" within the meaning of the Senior Citizens Act, 2007, Maintenance Tribunals have been constituted under Section 7 of the Act by the State Government.
The provisions of Sections 4 to 18 as contained in Chapter II of the Act deal with the first part of the Act, for making effective provisions for the 'maintenance of parents and senior citizens' guaranteed and recognized under the Constitution of India. For "welfare of parents and senior citizens" under Chapters III, IV and V, the State Government has to make different provisions for protection of fundamental rights of senior citizens guaranteed under Article 21 of the Constitution of India. All the measures to be taken by the State Government for protection of life and property of a senior citizen under the Act are in furtherance of the said object. The long title of the Act also provides an aid to this construction and reads as under:-
"An Act to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognised under the Constitution and for matters connected therewith or incidental thereto"
The cardinal rule of construction of statutes is to read the statute literally, that is, by giving to the words their ordinary, natural and grammatical meaning. Any interpretation or reading of the statute which leads to absurdity should be avoided. Whenever the question arises as to the meaning of a certain provision in a Statute, it is proper to read that provision in its context. The intention of the legislature must be found by reading the Statute as a whole. Every clause of the Statute should be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole Statute. It is the most natural and genuine exposition of a Statute.
As noted above in the Act, 2007, the words "maintenance" and "welfare" have been given the same meaning in the whole Statute. The Rules, 2014 have been framed by the State Goverment in exercise of the powers under Section 32 of the Act which empowers it to make rules for carrying out for the purpose of the Act.
The purpose of the Act as noted above is to make provisions for the "maintenance and welfare of parents and senior citizen" guaranteed and recognized under the Constitution of India. The duties and powers of the District Magistrate enumerated in Rule 21 contained in Chapter V of the Rules, 2014 are, thus, in furtherance of the said object and purpose of the Act as aforesaid. All the matters connected therewith or incidental thereto are obviously to be in relation to the object and purpose of the Act.
One of the duties of the District Magistrate under sub-rule (2)(i) of Rule 21 is to ensure that the lives and property of senior citizens of the district are protected and they are able to live with security and dignity.
Placing the said rule, it is vehemently contended by the learned counsel for the petitioners that the District Magistrate, Gautam Budh Nagar was duty bound to order for eviction of respondent no. 5 so as to protect the property of both the senior citizens namely petitioner nos. 1 and 2.
The contention is that the house-in-question is a self-acquired of petitioner no. 2, father-in-law of respondent no. 5 whereas two rooms existing on the first floor of the said house have been constructed by petitioner no. 1 out of her own earning. Both the petitioners are residing at the ground floor of the house-in-question. A gift deed dated 24.1.2019 of the house-in-question has been executed by petitioner no. 2 in favour of petitioner no. 1. The petitioner no. 2, owner of the house has given an affidavit before the District Magistrate making his intention clear that he does not wish that respondent no. 5 reside in the house-in-question.
Indisputably respondent no. 5 is daughter-in-law of the petitioner no. 2 and sister-in-law of petitioner no. 1. She is a widow lady and has two sons. She has categorically stated in her objection before the District Magistrate that the house-in-question is her matrimonial house which fact could not be successfully disputed by the petitioners herein. Apart from the assertion made in paragraph '8' of the application moved by petitioner no. 1, there is no allegation of any physical or verbal abuse or assault on the petitioners by respondent no. 5. A careful reading of the application moved by petitioner no. 1 before the District Magistrate and the affidavit of petitioner no. 2 filed in support thereof, clearly shows that the dispute between the parties arose as a result of the gift deed dated 24.1.2019 executed by petitioner no. 2 in favour of petitioner no. 1. It also transpired that respondent no. 5 has filed an Original Suit No. 1544 of 2019 (Rakhi Singh vs. Surendra Singh and others) for permanent injunction and declaration of gift deed as void document which is pending before the Civil Judge, Senior Division, Gautam Budh Nagar.
The prayers in the application dated 23.4.2019 moved by petitioner no. 1 before the District Magistrate, Gautam Budh Nagar under Rule 21 of the Rules, 2014 reads as under:-
"अतः श्रीमान जी से करबद्ध प्रार्थना है कि श्रीमान जी के स्तर से प्रार्थिनी, जो वरिष्ठ नागरिक है, के मामले में :-
(i) स्थानीय पुलिस थाना सै-20 के अवैध हस्तक्षेप को रूकवाया जाए।
(ii) प्रार्थिनी के उक्त मकान पर स्थानीय पुलिस द्वारा कराये गए श्रीमति राखी व उसके पुत्रों आशीष सिंह व आयुष सिंह के अवैध कब्जे को भी तुरन्त हटवाया जाए।
(iii) प्रार्थिनी के साथ घटित मारपीट की घटना दि०-03.03.19 की बावत थाना सैक्टर-20, नौएडा, जिला-गौतमबुद्धनगर पर प्रार्थिनी द्वारा दि०-04.03.2019 को दी गई तहरीर व प्रार्थिनी को आयी चोटों के अनुसार समुचित धाराओं में मुकदमा दर्ज करवाकर उपरोक्त लोगो के खिलाफ कानूनी कार्यवाही कराने के लिए उचित निर्देश जारी करने की कृपा की जाए, एवं
(iv) माता-पिता एंव वरिष्ठ नागरिक भरण-पोषण एंव कल्याण अधिनियम 2007 के तहत प्रार्थिनी, जो 61 वर्षिय वरिष्ठ महिला है व उसके पिता 93 वर्षीय वरिष्ठ नागरिक है, को उचित सुरक्षा व यथोचित न्याय दिलवाने की कृपा की जाए।"
We may note that though the allegations have been made against the Station House Officer, Police Station, Sector 20, District Gautam Budh Nagar but he has not been impleaded by name in the present petition. The allegations of mala fide made against the officer concerned during the course of argument based on the assertion in the application before the District Magistrate, therefore, cannot be entertained.
In light of the above discussion, considering the object and purpose of the Act, we are of the considered opinion that the prayer for eviction or dispossession of the respondent no. 5 and her two sons from the house-in-question could not have been granted by the District Magistrate in exercise of the powers conferred on him under Rule 21 of the Rules, 2014. The issue of eviction or dispossession of respondent no. 5 from the house-in-question which is stated to be her matrimonial house can only be examined by a Civil Court in a proper proceeding. The bar under Section 27 of the Senior Citizens Act, 2007 will not be attracted in the instant case. Even otherwise, any such objection, if taken, has to be examined by the competent court in the suit proceeding.
Third prayer of the application as noted above, is within the jurisdiction of the criminal court of law under the Code of Criminal Procedure.
As far as the last prayer is concerned, the District Magistrate has issued necessary directions to the concerned officer to ensure that no illegal interference is made in the life and property of the applicant/petitioner no. 1 by any person and in case of any such event, appropriate action be taken by the Station House Officer concerned.
For the above discussion, the decision of the District Magistrate to reject the application of petitioner no. 1, though on technical ground of maintainability need not be interfered.
However, as far as the direction nos. '2' and '3' contained in the order dated 28th June, 2019 passed by the District Magistrate, Gautam Budh Nagar, we find that the direction dated 6.5.2019 having been passed by way of an interim order on the application in question cannot be given effect to after dismissal of the application itself on the ground of being not entertainable. The interim direction dated 6.5.2019 having been merged in the final order of rejection of the application dated 28th June, 2019, cannot survive and cannot be given effect to. The respondent no. 5, therefore, cannot be asked to vacate the accommodation in her possession on the date of filing of the application by the petitioner no. 1 i.e. on 28th June, 2019. Both the parties herein have to maintain the position on the spot as on the date of filing of the application. There shall be no interference in the lives and property of the petitioners or that of respondent no. 5 at the hands of each other, so as to protect the right to life guaranteed to every person under Article 21 of the Constitution of India.
For the above discussion, the order impugned dated 28th June, 2019 passed by the District Magistrate, Gautam Budh Nagar is modified to the above extent.
It is, however, made clear that the observations in this order hereinabove shall not come in the way of the parties in the regular proceeding in the plenary jurisdiction of Criminal or Civil Court. The parties are free to ventilate their grievances before the competent Court of law which shall deal with the same independently.
Subject to the above, the writ petition is dismissed.
(Jayant Banerji,J.) (Sunita Agarwal,J.)
Order Date :- 21.10.2020
Brijesh