# Abhishek Tiwari & Anr v. State of U.P. & Ors

- **Citation:** (2022) 5 ILRA 450
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-31
- **Case number:** Writ C No. 30835 of 2021
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhishek-tiwari-anr-v-state-of-u-p-ors-48542
- **Pages:** 12

## Headnote

(A) Civil Law - Right of eviction -The
Maintenance and Welfare of Parents and
Senior Citizens Act, 2007 - Sections
3,5,6,7,9,10,11,16,21,22,23 & 32 - Uttar
Pradesh
Maintenance
&
Welfare
of
Parents & Senior Citizens Rule-2014 - Rule
21
-
Duties
and
Power
of
District
Magistrate - ensure that life and property
of senior citizens of the district are
protected and they are able to live with
security and dignity - Indian Penal Code,
1860 - section 323, 504 and 506 -
'purposive interpretation' - no power is
vested in the Tribunal to direct eviction
simplicitor from the property at the
instance of senior citizens - Tribunal fully
empowered
to
direct
the
children
/relatives to provide for a residence on an
application being filed by a senior citizen -
District Magistrate is empowered 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 - in relation to a specific part
of
the
property
which
are in
joint
possession of senior citizens as well as
children/relatives.(Para -13, 32)

Certain disputes arisen in between family
members - petitioner no.1 filed a regular suit -
against respondent no.6(mother) and her
husband - seeking permanent injunction -
against dispossession of petitioner no.1 from
the property in question - application moved
before SDM was simply that - petitioners (son &
daughter - in - law of respondent no.6) herein
who were residing on the first floor portion -
misbehaved with the parents -thus on that
ground alone, an apprehension was expressed -
the eviction was sought - SDM directed to
vacate the residential house . (Para -3,30 )

HELD:-SDM did not have any powers to direct
eviction .It can only direct the children or
relatives to provide for residential needs of
parents. Appropriate relief granted to the
respondents, in exercise of power under Article
226 of 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.(Para -31,33 )

Writ petition disposed off. (E-7)

List of Cases cited:-

## Text

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450 INDIAN LAW REPORTS ALLAHABAD SERIES

61. No order as to cost.
----------
(2022)05ILR A450
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2022

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ C No. 30835 of 2021
&
Writ C No. 31573 of 2021

Abhishek Tiwari & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Apoorva
Tewari,
Dharm
Pravartak
Mahendra

Counsel for the Respondents:
C.S.C., Dr. LP Misra, Jitendra Singh

(A) Civil Law - Right of eviction -The
Maintenance and Welfare of Parents and
Senior Citizens Act, 2007 - Sections
3,5,6,7,9,10,11,16,21,22,23 & 32 - Uttar
Pradesh
Maintenance
&
Welfare
of
Parents & Senior Citizens Rule-2014 - Rule
21
-
Duties
and
Power
of
District
Magistrate - ensure that life and property
of senior citizens of the district are
protected and they are able to live with
security and dignity - Indian Penal Code,
1860 - section 323, 504 and 506 -
'purposive interpretation' - no power is
vested in the Tribunal to direct eviction
simplicitor from the property at the
instance of senior citizens - Tribunal fully
empowered
to
direct
the
children
/relatives to provide for a residence on an
application being filed by a senior citizen -
District Magistrate is empowered 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 - in relation to a specific part
of
the
property
which
are in
joint
possession of senior citizens as well as
children/relatives.(Para -13, 32)

Certain disputes arisen in between family
members - petitioner no.1 filed a regular suit -
against respondent no.6(mother) and her
husband - seeking permanent injunction -
against dispossession of petitioner no.1 from
the property in question - application moved
before SDM was simply that - petitioners (son &
daughter - in - law of respondent no.6) herein
who were residing on the first floor portion -
misbehaved with the parents -thus on that
ground alone, an apprehension was expressed -
the eviction was sought - SDM directed to
vacate the residential house . (Para -3,30 )

HELD:-SDM did not have any powers to direct
eviction .It can only direct the children or
relatives to provide for residential needs of
parents. Appropriate relief granted to the
respondents, in exercise of power under Article
226 of 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.(Para -31,33 )

Writ petition disposed off. (E-7)

List of Cases cited:-

1. S.C. Ahuja Vs Sneha Ahuja, (2021) 1 SCC 41

2. Deddappa Vs Branch Manager, (2008) 2 SCC
595

3. Teri Oat Estates (P) Ltd. Vs U.T. Chandigarh,
(2004) 2 SCC 130

4. St. of Punj. Vs Surinder Kumar, (1992) 1 SCC
489

5. Sunny Paul & anr. Vs St. of NCT Delhi & ors.
, W.P. (C) No.10463 of 2015 & LPA No.205 of
2017

6. Subhashini Vs Deputy Collector Kozhikode
(F.B.)
5 All. Abhishek Tiwari & Anr. Vs. State of U.P. & Ors.
451
7. S. Vanitha Vs Deputy Commissioner & ors.,
(2020) SCC online SC 1023

8. Simrat Randhawa Vs St. of Punj. , CWP
No.4744 of 2018

9.
S.
Vanitha
Vs
Deputy
Commissioner
Bengaluru Urban District & ors., (2020) SCC
Online SC 1023

10. Anil Kumar Gupta Vs P.O. Appellate
Tribunal/DM Luck. & ors. , W.P. Misc. Single
No.19482 of 2019

11. Jyotsana Pawar & ors. Vs Daulat Ram Pawar
& ors. , LAP No.155 of 2021

12. Shweta Shetty Vs St. of Mah. , (2021) SCC
online Bom 4575 in W.P. (L) No.9374 of 2020

13. Dinubhai Boghabhai Slonaki Vs St. of Guj. &
ors. ,(2018) 11 SCC 129.

14. Dwarka Nath Vs I.T.O., Kanpur, AIR 1966
SC 81

15. Guru Datta Sharma Vs St. of Bihar & anr.,
AIR 1961 SC 1684

16. Jilubhai Nanbhai Khachar Vs St. of Guj. &
anr., 1995 Supp (1) SCC 596.

17. Jeetu @ Amit Kumar Rawata & anr. , W.P.
No.26686 of 2021

18. Sunny Paul & anr. Vs St. NCT of Delhi & ors.
, W.P. (C) No.10463 of 2015

19. C.K. Vasu Vs The Circle Inspector of Police,
WP (C) 20850 of 2011

20. Sanjay Walia Vs Sneha Walia, 204 (2013)
DLT 618

(Delivered by 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 SubDivisional 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
452 INDIAN LAW REPORTS ALLAHABAD SERIES
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
5 All. Abhishek Tiwari & Anr. Vs. State of U.P. & Ors.
453
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
454 INDIAN LAW REPORTS ALLAHABAD SERIES
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
5 All. Abhishek Tiwari & Anr. Vs. State of U.P. & Ors.
455
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
456 INDIAN LAW REPORTS ALLAHABAD SERIES
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
5 All. Abhishek Tiwari & Anr. Vs. State of U.P. & Ors.
457
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
458 INDIAN LAW REPORTS ALLAHABAD SERIES
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).
5 All. Abhishek Tiwari & Anr. Vs. State of U.P. & Ors.
459

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'.
460 INDIAN LAW REPORTS ALLAHABAD SERIES

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 SubDivisional 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
5 All. Vinay Kumar & Ors. Vs. State of U.P. & Ors.
461
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.