# Bipraji Singh v. State of U.P. & Ors

- **Citation:** (2022) 1 ILRA 294
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-16
- **Case number:** Writ C No. 26608 of 2021
- **Bench:** Ashwani Kumar Mishra, Vikram D Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bipraji-singh-v-state-of-u-p-ors-47678
- **Pages:** 12

## Headnote

A. Civil Law - The Maintenance and
Welfare of Parents and Senior Citizens
Act, 2007 - Sections 21, 22 & 23 - UP
Maintenance and Welfare of Parents and
Senior Citizens Rules, 2014 - Rule 21 -
Protection of property of Senior Citizens,
its extent - Title dispute - Jurisdiction of
Maintenance
Tribunal
-
Held,
the
proceedings before the District Magistrate
are summary in nature and only limited
inquiry can be made by the District
Magistrate for the purpose of carrying out
the object of Rule 21 - The "protection" of
property must therefore be understood to
mean where a senior citizen retains a
property in his name or possession for his
welfare and well being - In the Act of
2007, no power have been prescribed of
any
adjudicatory
mechanism
being
conferred on the District Magistrate for
deciding the disputed question of title,
right and interest in the property. (Para 25
and 26)
B.
Pleading
-
Significance
-
Vague
pleading, it's effect - Missing in the
factual foundation for the cause of action,
how far effect the relief sought - Held, the
pleadings are the foundation of litigation.
In pleadings, the necessary and relevant
particulars and material must be included
and unnecessary and irrelevant material
must be excluded - Pleadings in a
particular case are the factual foundation
on which the case of the litigant is based
on. The pleadings should be specific in the
petition and should disclose the complete
cause of action for approaching the court.
If the factual foundation for the cause of
action in approaching the court is missing
or is vague then it is always open for the
court
to
deny
the
relief
to
the
petitioner/litigant
in
the
facts
and
circumstances of the particular case. (Para
33)
Writ petition dismissed. (E-1)

## Text

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294 INDIAN LAW REPORTS ALLAHABAD SERIES
petition.
The
same
is,
accordingly,
dismissed.
----------
(2022)01ILR A294
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2021

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE VIKRAM D CHAUHAN, J.

Writ C No. 26608 of 2021

Bipraji Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Pramod Kumar Singh Paliwal

Counsel for the Respondents:
C.S.C.
A. Civil Law - The Maintenance and
Welfare of Parents and Senior Citizens
Act, 2007 - Sections 21, 22 & 23 - UP
Maintenance and Welfare of Parents and
Senior Citizens Rules, 2014 - Rule 21 -
Protection of property of Senior Citizens,
its extent - Title dispute - Jurisdiction of
Maintenance
Tribunal
-
Held,
the
proceedings before the District Magistrate
are summary in nature and only limited
inquiry can be made by the District
Magistrate for the purpose of carrying out
the object of Rule 21 - The "protection" of
property must therefore be understood to
mean where a senior citizen retains a
property in his name or possession for his
welfare and well being - In the Act of
2007, no power have been prescribed of
any
adjudicatory
mechanism
being
conferred on the District Magistrate for
deciding the disputed question of title,
right and interest in the property. (Para 25
and 26)
B.
Pleading
-
Significance
-
Vague
pleading, it's effect - Missing in the
factual foundation for the cause of action,
how far effect the relief sought - Held, the
pleadings are the foundation of litigation.
In pleadings, the necessary and relevant
particulars and material must be included
and unnecessary and irrelevant material
must be excluded - Pleadings in a
particular case are the factual foundation
on which the case of the litigant is based
on. The pleadings should be specific in the
petition and should disclose the complete
cause of action for approaching the court.
If the factual foundation for the cause of
action in approaching the court is missing
or is vague then it is always open for the
court
to
deny
the
relief
to
the
petitioner/litigant
in
the
facts
and
circumstances of the particular case. (Para
33)
Writ petition dismissed. (E-1)

(Delivered by Hon'ble Vikram D Chauhan, J.)

1. The present writ petition has been
filed by the petitioner seeking direction to
the District Magistrate, Azamgarh to
demolish the illegal encroachment made
over the petitioner's adjoining land and
hand over the possession in favour of the
petitioner.

2. The petitioner claims to be a widow
lady having no source of protection of life
and liberty and, as such, has moved an
application
under
the
Uttar
Pradesh
Maintenance and Welfare of Parents and
Senior Citizens Rules, 2014, to the District
Magistrate, Azamgarh, to take action in
respect of the land of the petitioner and to
evict the private respondent no.5 from the
land in question. The application filed by
the
petitioner
before
the
District
Magistrate, Azamgarh is filed by the
petitioner as Annexure 1 to the writ
petition. A bare perusal of the abovementioned application of the petitioner
before the District Magistrate would
1 All. Bipraji Singh Vs. State of U.P. & Ors.
295
demonstrate that it is the case of the
petitioner that she is residing at Mumbai
along with her family and is permanent
resident of the village in which the land in
question is situated. It is also stated by the
petitioner that during the absence of the
petitioner from the village, the neighbour of
the petitioner being respondent no 5 has
illegally taken possession of the land of the
petitioner adjoining the residence of the
petitioner in the village and post- karia
gopalpur, Police Station-Devgaon, DistrictAzamgarh, Uttar Pradesh.

3. Heard learned counsel for the
petitioner and learned standing counsel for
the respondent-State.

4. It is submitted by learned counsel
for the petitioner that the petitioner has
moved an application before the District
Magistrate, seeking eviction of private
respondent no.5 from the land adjoining the
residence of petitioner. It is also submitted
that the petitioner is living with her family
at Mumbai and during her absence,
neighbour has taken possession over the
land adjoining the residence of petitioner. It
is submitted on behalf of learned counsel
for the petitioner that The Maintenance and
Welfare of Parents and Senior Citizens Act,
2007 (hereinafter referred to "Act of 2007")
has been enacted by the legislature
providing for welfare & protection to the
senior citizens and parents. It is also
submitted by learned counsel for the
petitioner that under the aforesaid Act of
2007, the Uttar Pradesh Maintenance and
Welfare of Parents and Senior Citizens
Rules, 2014 (hereinafter referred to "Rules
of 2014") has been framed and under Rule
21 of the Rules of 2014, the District
Magistrate is enjoined with the duty to
ensure that the life and property of
senior citizens of the district is protected
and they are able to live with security and
dignity. It is further submitted by learned
counsel for the petitioner that under Rule
22 of the Rules of 2014, an action plan for
the protection of life and property of senior
citizen has been envisaged and on the
aforesaid basis, petitioner seeks direction
for ejection of the private respondent from
the land in question.

5. Before considering the claim of the
petitioner arising out of the present writ
petition, it is necessary that the scheme of
the Act of 2007 be examined.

6. The Act of 2007 is enacted with the
object to provide 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 statement, objects and reasons
of the aforesaid Bill is as under :-

"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
296 INDIAN LAW REPORTS ALLAHABAD SERIES
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 old age
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 old age homes
in every district.

4. The Bill seeks to achieve the
above objectives."

7. The aforesaid Act is primarily
divided into seven chapters providing for
maintenance and welfare of parents and
senior citizens.

8. Chapter I of the aforesaid Act
provides the definition of "maintenance"
and "property". The definition as envisaged
under the aforesaid Act is as under :-

"2 (b) "maintenance" includes
provision for food, clothing, residence and
medical attendance and treatment;

(f) "property" means property of
any kind, whether movable or immovable,
ancestral or self acquired, tangible or
intangible and includes rights or interests in
such property;"

Maintenance' is defined in an
inclusive manner to incorporate, among
other things, provisions for food, clothing,
residence,
medical
assistance
and
treatment. In defining the expression
'property',
the
legislation
uses
broad
terminology encompassing "property of
any kind" and to include "rights or interests
in such property" . Further, overriding
effect is given to the provisions of the
enactment by virtue of Section 3.

9. Chapter II of the aforesaid Act
provides for maintenance of parents and
senior
citizens.
Under
the
aforesaid
Chapter, the Maintenance Tribunal has
been constituted providing for reddressal of
grievance. The Maintenance Tribunal is
constituted under Section 7 of the aforesaid
Act. Further, Section 4 recognises a
corresponding obligation on the part of the
children or relative to maintain a senior
citizen, extending to such needs as would
enable them to lead a normal life. In the
case of a relative, the obligation is if they
are in possession of the property of the
senior citizen or would inherit property
from them whereas in the case of the
children of a senior citizen, the obligation
to maintain a parent is not conditional on
being in possession of property of the
senior citizen or upon a right of future
inheritance.

10. Further, Section 8 of the aforesaid
Act provides that the procedure before the
Tribunal would be a summary procedure
and the Tribunal would have all the powers
of a civil court for the purpose of taking
evidence on oath and of enforcing the
attendance of witnesses and of compelling
the discovery and production of documents
1 All. Bipraji Singh Vs. State of U.P. & Ors.
297
and materials objects and for such other
purposes as may be prescribed and the
Tribunal shall be deemed to be a civil court
for all the purposes of Section 195 and
Chapter XXVI of the Code of Criminal
Procedure, 1973.

11. Section 9 of the aforesaid Act,
provides the tribunal with the power to
order for maintenance if the children and
relatives has neglected or refused to
maintain a senior citizen being unable to
maintain himself.

12. Further, Section 15 of the
aforesaid Act provides Appellate Tribunal
to be constituted against any order passed
by the Maintenance Tribunal and any
senior citizens or parents aggrieved by the
order of the Tribunal can prefer an appeal
before the Appellate Tribunal.

13. Chapter III of the aforesaid Act
further directs the establishment of old age
homes for senior citizens in furtherance of
welfare of senior citizens.

14. Chapter IV of the aforesaid Act
provides medical care of senior citizens and
in this respect various directions have been
issued under Section 20 of the Act of 2007,
to the State Government for ensuring the
medical treatment of senior citizens.

15. Under Chapter V of the aforesaid
Act, protection of life and property of
senior citizens is envisaged. In this respect
following provisions are required to be
noticed. Sections 21, 22 and 23 are quoted
hereinbelow:-

"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
298 INDIAN LAW REPORTS ALLAHABAD SERIES
shall provide the basis 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 of 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 subsections (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."

16. Sub-section (1) of Section 23
covers a situation where property has been
transferred after the enactment of the
legislation by a senior citizen (by gift or
otherwise) subject to the condition that the
transferee must provide the basic amenities
and physical needs to the transferor. In
other words, Sub-section (1) deals with a
situation where the transfer of the property
is accompanied by a specific condition to
provide for the maintenance and needs of a
senior citizen. In such an event, if the
transferee fails to provide the maintenance
and physical needs, the transfer of the
property is deemed to have been vitiated by
fraud, coercion or under undue influence.
Section 23(1), in other words, creates a
deeming fiction of the law where the
transfer of the property is subject to a
condition and the condition of providing
for maintenance and the basic needs of a
senior citizen is not fulfilled by the person
upon whom the obligation is imposed.
Then, at the option of the transferor, the
transfer can be declared as void by the
Tribunal. On the other hand, Sub-section
(2) of Section 23 envisages a situation
where a senior citizen has a right to receive
maintenance out of an estate. Where such a
right exists, the right of maintenance can be
enforced where the estate or a portion of it,
is transferred against a transferor who has
notice of the right; or if the transfer is
gratuitous. The right however cannot be
enforced
against
a
transferee
for
consideration and without notice of the
right.

17. The Sub-section (1) of Section 23
envisages a situation where the transfer of
property is by the senior citizen. This is
evident from the language of sub-Section
(1) namely "where any senior citizen who,
after the commencement of this Act, has
transferred by way of gift or otherwise, his
property...". On the other hand, sub-Section
(2) of Section 23 does not confine itself to a
transfer by a senior citizen, unlike subSection (1). Sub- Section (2) uses the
expression "such estate or part thereof is
transferred". Where a senior citizen has a
right to receive maintenance out of the
estate and any part of it is transferred, subsection 2 permits the enforcement of the
right to receive maintenance out of the
estate against a transferee with notice or
against a gratuitous transferee. Sub-Section
(2), in other words, may cover a situation
where the transfer of the estate (in which a
senior citizen has a right to maintenance) is
by a third party, in which event, the
provision provides the right to enforce the
claim
of
maintenance
against
such
transferee (other than those transferees for
consideration or without notice of the
1 All. Bipraji Singh Vs. State of U.P. & Ors.
299
preexisting right). Arguably, the language
of subsection (2) is broad enough to also
cover a situation where the transfer is by
the senior citizen, in which event the
transferee with notice of the right; or a
gratuitous transferee, can be made subject
to the enforcement of the right against the
transferred estate. Further, under subSection (1), where a transfer has been made
by a senior citizen subject to the condition
that the transferee will provided for basic
amenities
or
physical
needs
of
the
transferor and if there is a failure of the
transferee to fulfil the condition, two
consequences follow: (i) the transfer of
property shall be deemed to have been
made by fraud or coercion or under undue
influence; and (ii) the transfer shall, at the
option of the transferor, be declared to be
void by the Tribunal. The deeming
consequence which is provided for in subSection (1) is not incorporated in subSection
(2).
Sub-Section
(2),
in
contradistinction, stipulates that the right to
receive maintenance can be enforced
against a gratuitous transferee or a
transferee with notice of the pre-existing
right of a citizen to receive maintenance out
of an estate notwithstanding who is the
transferee of the estate. In keeping with the
salutary public purpose underlying the
enactment of the legislation, the expression
'transfer'' would include not only the
absolute transfer of property but also
transfer of a right or interest in the
property. This would also be in consonance
with the provisions of Section 2(f) which
defines the expression property to include
"rights or interests in such property". The
expression 'transfer' not having been
defined specifically by the legislation, it
must receive an interpretation which would
advance the beneficent object and purpose
of its provisions. Sub-section (2) of section
23 speaks of the enforcement of the
"right to receive maintenance" which is
more comprehensive in its nature, than
merely enforcing an order for maintenance
passed under Section 9 of the Act.

18. Chapter VI of the aforesaid Act
provides for offences and procedure for
trial of the aforesaid offence against senior
citizens and parents.

19. Under Section 32 of the aforesaid
Act, the State Government has been
empowered to make rules for carrying out
the purposes of the Act. Sub-section (2) (f)
of Section 32 enables the State Government
to make Rules for a comprehensive action
plan for providing protection of life and
property of senior citizens.

20. Under Sub-section (2) of Section
22 of the Act it is directed that State
Government shall provide a comprehensive
action plan for providing protection of life
and property of senior citizens. The State
Government in exercise of power under
Section 32 of the Act of 2007 has framed
the Rules of 2014.

21. Rule 21 of the aforesaid Rules of
2014 provide duties and powers of the
District Magistrate. Under the Rule 21 subRule 2(i) it is directed that it is the duty of
the District Magistrate to ensure that life
and property of senior citizens of the
districts are protected and they are able to
live
with
security
and
dignity. For
convenience Rule 21 of the aforesaid Rules
of 2014 is quoted hereinbelow:-

"21. Duties and Powers of the
District Magistrate. - (1) The District
Magistrate shall perform the duties and
300 INDIAN LAW REPORTS ALLAHABAD SERIES
exercise the powers mentioned in sub-rules
(2) and (3) so as to ensure that the
provisions of the Act are properly carried
out in his district.

(2) It shall be the duty of the
District Magistrate to :

(i) ensure that life and property of
senior citizens of the district are protected
and they are able to live with security and
dignity;

(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 homes in the district so as to
ensure that they conform to the standards
laid down in these rules 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 and efforts are effectively
pooled for the welfare of senior citizens of
the 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 offices 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."

22. Under Rule 22 of the Rules, 2014
an action plan for the protection of life and
property of senior citizens is provided. For
convenience Rule 22 of the aforesaid Rules
is quoted hereinbelow:-
1 All. Bipraji Singh Vs. State of U.P. & Ors.
301

"22.
Action
Plan
for
the
protection of life and property of senior
citizens.-
(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 any property of
senior citizens.

(2) Without prejudice to the
generality of sub-rule (1) :

(i) each police station shall
maintain an up-to-date list of senior
citizens living within its jurisdiction,
especially
those
who
are
living
by
themselves
(i.e.
without
there
being
member in their household who is not a
senior citizen);

(ii) a representative of the police
station together as far as possible, with a
social worker or volunteer, shall visit such
senior citizens at regular intervals of at
least once a month, and shall, in addition,
visit them as quickly as possible on receipt
of a request of assistance from them;

(iii)
complaints/problems
of
senior citizens shall be promptly attended
to, by the local police;

(iv) one or more Volunteer
Committee(s) shall be formed for each
Police Station which shall ensure regular
contact
between
the
senior
citizens,
especially those living by themselves, on
the one hand, and the police and the district
administration on the other;

(v) the District Superintendent of
Police or, the Divisional Inspector General
of Police as the case may be, shall cause to
be publicised widely in the media and
through the Police Station, at regular
intervals, the steps being taken for the
protection of life and property of senior
citizens;

(vi) each Police Station shall
maintain a separate register containing all
important particulars relating to offences
committed against Senior Citizens as in
Annexure IV:

(vii) the register referred to in
clause (vi) shall be kept available for public
inspection, and every officer inspecting a
Police Station shall invariably review the
status as entered in the register;

(viii) the Police Station shall send
a monthly report of such crimes to the
District Superintendent of Police by the
10th of every month;

(ix) list of Do's and Don'ts to be
followed by senior citizens, in the interest
of their safety, will be widely publicised;

(x)
antecedents
of
domestic
servants and others working for senior
citizens shall be promptly verified, on the
request of such citizens;

(xi) community policing for the
security
of
senior
citizens
will
be
undertaken in conjunction with citizens
living in the neighborhood, Residents'
Welfare Association, Youth Volunteers,
Non-Government Organizations, etc;

(xii) the District Superintendent
of Police shall submit to the Director
General of Police and to the District
Magistrate, a monthly report by the 20th of
every monthly, about the status of crimes
against senior citizens during the previous
month, including progress of investigation
and prosecution of registered offences, and
preventive steps taken during the month, as
in Annexure V;

(xiii) the District Magistrate shall
cause the report to be placed before the
District Level Committee constituted under
Rule 24;
302 INDIAN LAW REPORTS ALLAHABAD SERIES

(xiv) the Director General of
Police shall cause the reports submitted
under clause (xii) to be complied, once a
quarter, and shall submit them to the
Government every quarter as well as every
year for, inter alia, being placed before the
State Council of Senior Citizens constituted
under Rule 23."

23. It is to be seen that under Rule 21
Sub-Rule (2)(i) of the Rules of 2014, the
District Magistrate has been conferred with
the duty to ensure the life and property of
senior citizens of the district are protected
and they are able to live with security &
dignity and further under Rule 22 a
comprehensive
action
plan
has
been
envisaged for the welfare of senior citizens.
The power conferred on the District
Magistrate by Rule 21 of the Rules of 2014
are for the purpose of providing protection
to the life and property of the senior citizens.

24. The scheme of the Act would
go
to
show
that
in
respect
of
maintenance of the senior citizens under
Chapter
II
of
the
Act
of
2007,
adjudicatory mechanism has been placed
under the Act of 2007. For the purpose
of maintenance of senior citizens, a
Maintenance
Tribunal
has
been
constituted under Section 7 to adjudicate
upon
the
issue
with
regard
to
maintenance of senior citizens and
parents and the aforesaid Tribunal has
been conferred with the power of civil
court under Section 8 of the Act for the
purpose of determination of the issues
before the Maintenance Tribunal. It is
further to be seen that adjudicatory
mechanism has been provided under
Chapter II of the Act of 2007, for which
the
Tribunal
is
the
authority
to
adjudicate the dispute.

25. In so far as the power conferred
under Rule 21 to the District Magistrate is
concerned, the said power is limited to the
protection of the life and property of the
senior citizens. No such power has been
conferred on the District Magistrate to be
part of adjudicatory mechanism under the
act and the power of the District Magistrate
are executive in nature and he is only
required to protect the property of the
senior citizens, where from the records or
otherwise, it can be found that the title of
the property or rights to the property is
vested
in
the
senior
citizen.
The
proceedings before the District Magistrate
are summary in nature and only limited
inquiry can be made by the District
Magistrate for the purpose of carrying out
the object of Rule 21, to find out whether
the property belongs to senior citizens or
not or the senior citizen has any right in the
property in question. Rule does not in any
manner permit the District Magistrate to
consider the disputed claim of the parties in
respect of title or rights to the property. The
"protection" of property must therefore be
understood to mean where a senior citizen
retains a property in his name or possession
for his welfare and well being.

26. The adjudicatory mechanism
under the present constitutional frame work
is provided to the ordinary courts of law
and executive is not conferred with powers
to determine the rights of the parties in
respect of property. Where ever the power
has been conferred on the executive to
adjudicate the rights of the parties under
any law, the power has been well defined
and the jurisdiction of executive authority
under the relevant law is also prescribed. In
the Act of 2007, no power have been
prescribed of any adjudicatory mechanism
being conferred on the District Magistrate
1 All. Bipraji Singh Vs. State of U.P. & Ors.
303
for deciding the disputed question of title,
right and interest in the property.

27. It is also to be seen that the dispute in
respect title or right to property would require
leading of evidence and recording of finding on
the basis of evidence led with regard to the right
and ownership of the property. The said powers
under the constitutional framework is to be
exercised by the ordinary courts of law and
such a mechanism without there being any
provisions in the Act of 2007, cannot be
permitted to be conferred on the District
Magistrate in the garb of Rule 21 which is
limited to protection of property of the senior
citizens.

28. Under section 23, the transfer of
property in certain circumstances have been
declared to be void and the senior citizen is
permitted to approach the tribunal for
declaration of the transfer is void or for
maintenance as the case may be. In respect of
the protection of the property and rights of the
senior citizen arising out of the property under
section 23, the adjudicatory mechanism has
been conferred on the maintenance Tribunal
constituted under chapter 2 of the Act of 2007.

29. Under the scheme of the abovementioned act, wherever the adjudication of the
right of a senior citizen is required, the power
has been conferred under the aforesaid act on
the tribunal. The tribunal has also been
conferred with the powers of the civil court
under Section 8 of the Act of 2007. The orders
passed by the tribunal under the act is subjected
to an appeal under Section 16 of the Act of
2007. It is to be seen that the adjudicatory
mechanism in place under the aforesaid act for
the purpose of maintenance of senior citizen
and for protection of the rights conferred under
Section 23 of the Act of 2007, indicate that the
power of the District Magistrate under the
aforesaid act for protection of the property &
life of the senior citizen is san of any
adjudication at the behest of the District
Magistrate in respect of any disputed claim to
the property or the rights of the senior citizen.

30. The District Magistrate under Rule 21
of Rules of 2014 is not an adjudicatory forum in
respect of serious dispute of title between the
senior citizen and the third party. The
provisions contained in the Act of 2007 and the
rules framed thereunder merely provide for
protection of the rights of the senior citizen over
the property with the object of maintenance of
such property. The act does not intend to create
any
new
forum
for
adjudication
or
determination of the property dispute or rights
in the property between individuals. The
powers of the District Magistrate under the
Rules of 2014 would require the District
Magistrate to ascertain that the applicant before
the aforesaid authority is a senior citizen and
further the property in respect of which the
protection is being sought is in the ownership of
the senior citizen or the senior citizen has any
right, interest or title in the property in dispute.
The right or title or interest in the property as
claimed by the senior citizen should be an
existing right which is without any cloud on the
title, interest or right of the senior citizen in the
aforesaid property. Where there are serious
dispute with regard to the title, interest or right
of the senior citizen to the property in question
and the aforesaid dispute can only be resolved
by leading evidence and further by recording a
finding in respect of title of the property, the
district magistrate in such circumstances would
not have the authority to consider upon the rival
claims of the parties specifically in the case
where the dispute with regard to the property is
with the third party who is neither the relative
nor the children of the senior citizen.
304 INDIAN LAW REPORTS ALLAHABAD SERIES

31. It is further to be seen that under
the Act of 2007, no adjudicatory powers
have been conferred on the District
Magistrate and under section 22 of the Act
of 2007 a direction was issued to the state
government to prescribe a comprehensive
action plan for providing protection to life
and property of the senior citizen. The State
government while exercising the powers
under section 32 of the Act of 2007 has
framed the Rules of 2014 where under the
District Magistrate has been conferred with
the powers to protect the property & life of
the senior citizen. It is for the legislature to
confer
adjudicatory
powers
on
any
authority and we have already observed
that such power of adjudication, in respect
of disputed claim to property is neither
intended to be conferred upon the District
Magistrate nor has actually been conferred
upon the District Magistrate. We are
therefore inclined to read down Rule 21 in
light of the statutory scheme and clarify
that the power vested in the District
Magistrate vide Rule 21 does not extend to
potential claims in respect of property
where title, interest or possession needs
determination/adjudication.
For
the
aforesaid purpose the District Magistrate
can make a summary enquiry as regard to
the title, interest of the senior citizen in the
property in question however the intrinsic
question of title or right which requires
evidence and adjudication could not be
gone into by the District Magistrate under
the aforesaid Rule of 2014.

32. In the present case, the pleadings
in the writ petition are of significance as in
the writ petition, the petitioner has not
disclosed that she is a senior citizen. It is
also to be seen that in the application filed
before the District Magistrate which is
annexed as Annexure No.1 to the writ
petition, it is not stated that the petitioner is
a senior citizen. The pleadings in this
respect are wholly vague in nature in the
writ petition as well as the application filed
by the petitioner before the District
Magistrate.

33. The Pleadings are the foundation
of litigation. In pleadings, the necessary
and relevant particulars and material must
be included and unnecessary and irrelevant
material must be excluded. Pleadings in a
particular case are the factual foundation on
which the case of the litigant is based on.
The pleadings should be specific in the
petition and should disclose the complete
cause of action for approaching the court. If
the factual foundation for the cause of
action in approaching the court is missing
or is vague then it is always open for the
court
to
deny
the
relief
to
the
petitioner/litigant
in
the
facts
and
circumstances of the particular case.

34. It is also to be seen that in an
application
filed
before
the
District
Magistrate annexed as Annexure No.1 to
the writ petition, petitioner has only stated
that the land adjacent to the residence of
the petitioner has been occupied by the
private respondent and boundary wall has
been made on the aforesaid land. It is
further to be seen that the pleadings in the
writ petition does not demonstrate as to
how the ownership of the aforesaid land is
vested with the petitioner and what right
the petitioner has on the aforesaid land in
question. The pleadings in writ petition are
apparently silent on the aforesaid aspect
and unless the petitioner comes up with a
specific pleadings showing her established
title or rights to the property, the direction
in the writ petition cannot be issued.

35. It is further to be seen that in the
present writ petition it has not been
1 All. C/M Sri Ishwar Maharaj Uchchatar Madhyamik Vidyalaya Inter College, Agra & Anr. Vs.
State of U.P. & Ors.
305
stated/disclosed as to the date when the
land in question was encroached upon by
the private respondent and when the wall
was constructed. It is only stated in the
application that the petitioner is living at
Mumbai and in her absence, the neighbour/
private respondent has occupied the land in
question. The details & identification of the
land in question has neither been given in
the writ petition nor in the application filed
before the District Magistrate and the
application as well as the writ petition is
lacking the factual foundation for initiation
of proceedings under the Act of 2007.

36. It is further to be noted that third
party has already created a boundary on
the land in question and, as such, there
prima facie exists a dispute, which is
required to be considered and decided by
the court of competent jurisdiction and
the District Magistrate in exercise of Rule
21, would not have the power to decide
the dispute between petitioner and the
private respondent, who is third party in
respect of title and ownership of the land
in question and the aforesaid would
require the evidence to be led by the
parties before the court of competent
jurisdiction.

37. The petitioner in the present writ
petition has prayed for direction to the
District Magistrate to demolish the illegal
encroachment
over
the
petitioners
adjoining
land
and
handover
the
possession in favour of the petitioner.
While considering the aforesaid prayer, it
was imperative on the part of the
petitioner to have laid the factual
foundation with regard to right, title or
interest of the petitioner in the property in
question, in the writ petition. The
direction as prayed by the petitioner can
only be issued where the petitioner shows
that he has any right, title or interest in
the property in question. In the writ
petition neither any document has been
produced to indicate the right, title or
interest nor the pleadings in this respect
has been provided in the writ petition.

38. In view of the aforesaid, the
present writ petition lacks merit and is
dismissed.
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(2022)01ILR A305
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.12.2021

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ C No. 30240 of 2021

C/M
Sri
Ishwar
Maharaj
Uchchatar
Madhyamik Vidyalaya Inter College, Agra
& Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents