# Dinesh Ahuja @ Chinu & Anr v. D.M. & Ors

- **Citation:** (2024) 11 ILRA 346
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-22
- **Case number:** Writ -C No. 33687 of 2021
- **Bench:** Saumitra Dayal Singh, Donadi Ramesh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-ahuja-chinu-anr-v-d-m-ors-51012
- **Pages:** 14

## Headnote

A. Civil Law - Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 -
Object and Scope - Senior citizen's right
of eviction - Imposing restriction to the
right guaranteed under the Statute -
Permissibility - Held, the Act and the
11 All. Dinesh Ahuja @ Chinu & Anr. Vs. D.M. & Ors.
347
Rules offer a life preserving protective
umbrella to all the aged members of the
society, who may feel victimized or
helpless at the hands of their children, or
their relatives & ors., both with respect to
provision for maintenance allowance and
with
respect
to
protection
of
their
properties. Once that protection has been
granted, there is no reason to restrict its
operation
-
Held
further,
summary
proceeding may remain subject to the out
come of any civil suit wherein larger
issues and other rights may be involved -
High Court disagreed with Ravi Shankar's
case (Patna High Court) and Simrat
Randhawa's case (Punjab and Haryana
High Court) - Krishna Kumar's case was
also held distinguishable as it relate to Ch.
II, not Ch. V of the Act. (Para 30, 31 and
33)
B. Civil Law - Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 - S.
22 - UP Maintenance and Welfare of
Parents and Senior Citizens Rules, 2014 -
R.
21
-
Allegation
of
initiation
of
proceeding by the father (F) as proxy
proceeding for the benefit of elder son
(S1) - Reliability - No material in support
of allegation - Effect - Held, merely
because 'S1' may either be neutral to the
dispute between 'F' and 'S2' and / or
merely because 'S1' may be supporting 'F'
in his dispute with 'S2', it may not lead to
the conclusion as suggested by learned
counsel for the petitioner - High Court
found the objection of the petitioner
misconceived. (Para 22 and 23)
Writ petition dismissed. (E-1)
List of Cases cited:

## Text

_Characters 0–39,513 of 43,183. This is a partial read: ask again with offset=39513 for what follows._

346 INDIAN LAW REPORTS ALLAHABAD SERIES
process
of
rectangulation
a
proper
development scheme is to be framed
otherwise
it
will
lead
to
haphazard
development, which will be contrary to
regular and planned development. For the
said purpose the land must be acquired by the
authority, followed by the preparation of
development plan, and subsequently allotted
after realising the development charges and
the cost of land etc. We are concerned by the
fact that even after the passage of more than 4
decades the entire land in the notified area
has not been acquired, and on the other hand
the authority would not sanction the building
plans in the areas where the land has not been
acquired. In fact, the area in which the
development is proposed by the authority in
the notified area ought to be acquired within a
reasonable period of time. During this period
the authority would be justified in not
sanctioning the building plans on the ground
that the said areas are proposed to be
developed as per the plans prepared by the
authority. But in case the land in the notified
area is not acquired within a reasonable
period, the rejection of the building plans
would clearly be illegal and arbitrary and
would be violative of Article 300A of the
Constitution of India.

75. In the present case, the facts are
peculiar and probably the only solitary
instance, as stated by the respondents, where,
by a deed of exchange, the land has been
allotted to the petitioner. Prior to allotment to
the petitioner, the said land was acquired by
the authority, and also shown in the master
plan for residential purposes. It is only after
following the entire procedure, the land was
allotted, and it is on the said land that an
application for sanction of the building plan
was made by the petitioners. In the aforesaid
circumstances, we do not find any reason for
the authority not to consider the application
of the petitioner for sanction of the building
plan, and the reasons for rejection, as already
discussed, are clearly illegal and arbitrary.

76. Accordingly, for the reasons
stated herein-above, the writ petition is
allowed.
The
impugned
orders
dated
11.09.2023 and 10.04.2024 are quashed.

77. The matter is remitted to
respondent No.2 to pass a fresh order
considering the application for sanction of
map on merits in light of the Regulations of
2010 treating the petitioner to be eligible for
due consideration and sanction of the map, in
accordance with law. Let the fresh exercise be
carried out expeditiously, but not later than 4
weeks from the date a certified copy of this
order is produced before him.
----------
(2024) 11 ILRA 346
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.11.2024

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE DONADI RAMESH, J.

Writ -C No. 33687 of 2021

Dinesh Ahuja @ Chinu & Anr.
 ...Petitioners
Versus
D.M. & Ors. ...Respondents

Counsel for the Petitioners:
Nitin Sharma

Counsel for the Respondents:
Abhitab Kumar Tiwari, C.S.C., Vinay Khare,
Vivek Saran

A. Civil Law - Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 -
Object and Scope - Senior citizen's right
of eviction - Imposing restriction to the
right guaranteed under the Statute -
Permissibility - Held, the Act and the
11 All. Dinesh Ahuja @ Chinu & Anr. Vs. D.M. & Ors.
347
Rules offer a life preserving protective
umbrella to all the aged members of the
society, who may feel victimized or
helpless at the hands of their children, or
their relatives & ors., both with respect to
provision for maintenance allowance and
with
respect
to
protection
of
their
properties. Once that protection has been
granted, there is no reason to restrict its
operation
-
Held
further,
summary
proceeding may remain subject to the out
come of any civil suit wherein larger
issues and other rights may be involved -
High Court disagreed with Ravi Shankar's
case (Patna High Court) and Simrat
Randhawa's case (Punjab and Haryana
High Court) - Krishna Kumar's case was
also held distinguishable as it relate to Ch.
II, not Ch. V of the Act. (Para 30, 31 and
33)
B. Civil Law - Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 - S.
22 - UP Maintenance and Welfare of
Parents and Senior Citizens Rules, 2014 -
R.
21
-
Allegation
of
initiation
of
proceeding by the father (F) as proxy
proceeding for the benefit of elder son
(S1) - Reliability - No material in support
of allegation - Effect - Held, merely
because 'S1' may either be neutral to the
dispute between 'F' and 'S2' and / or
merely because 'S1' may be supporting 'F'
in his dispute with 'S2', it may not lead to
the conclusion as suggested by learned
counsel for the petitioner - High Court
found the objection of the petitioner
misconceived. (Para 22 and 23)
Writ petition dismissed. (E-1)
List of Cases cited:
1. Krishan Kumar Vs St. of U.P. & ors.;
2023:AHC-LKO:54220 decided on 18.08.2023 :
2023 9 ADJ 113
2. Simrat Randhawa Vs St. of Pun. & ors.; 2020
Supreme (P & H) 5
3. Smt. S. Vanitha Vs The Deputy Commissioner
Bengaluru Urban District and Ors.; 2021 (15)
SCC 730
4. Letters Patent Appeal No. 907 of 2023 in Civil
Writ Jurisdiction Case No. 7851 of 2022; Ravi
Shanker & anr. Vs St. of Bihar & ors. decided on
03.01.2024
5. Sau Rajani Vs Sau Smita & anr.; 2022 INSC
805
6. Shivani Verma Vs St. of U.P. ors.; 2023 (6)
ADJ 496
7. Harcharan Singh Vs Bhagat Singh & ors.;
2019 (2) R.C.R. (Civil) 313

(Delivered by Hon'ble Saumitra Dayal
Singh, J. & Hon'ble Donadi Ramesh, J.)

1. Mediation offered to the parties has
failed. Accordingly, the matter has been
proceeded

2. Heard Sri Nitin Sharma, learned
counsel for the petitioners; Sri Vivek Saran,
learned counsel for the private respondent
and Ms. Kritika Singh, learned Additional
Chief Standing Counsel for the State
respondents.

3. Present writ petitions has been
filed for the following relief :-

(i) Issue a writ, order or
direction in the nature of certiorari
quashing
the
order
dated
22.11.2021 (Annexure No.5 to this
instant writ petition) passed by the
Additional
City
Magistrate
(Brahmpuri), Meerut (Respondent
No.2) in Case No.4925 of 2021
(Computerized
Case
No.D202111520004925)
title
Inderjeet Ahuja versus Dinesh
Ahuja @ Chinu and another, under
Section 7(1) U.P. the Maintenance
and Welfare of Parents and Senior
Citizens Act, 2007.
(ii) Issue a writ, order or
direction
in
the
nature
of
348 INDIAN LAW REPORTS ALLAHABAD SERIES
mandamus directing the respondent
authority not to take any coercive
action against the petitioners in
pursuance of the order dated
22.11.2021.
(iii) Issue a writ, order or
direction
in
the
nature
of
mandamus directing the respondent
authority not to interfere in the
peaceful possession of the premises
of the petitioners.

4. The factual matrix giving rise to
the present writ petition is undisputed. The
petitioner Dinesh Ahuja (herein after
described as 'S2') is the younger son of
respondent
no.3
Indrajeet
Ahuja
(hereinafter referred to as 'F'). 'F' has
another son (elder) born to him, namely,
Hemant Ahuja (hereinafter described as
'S1'). It is also admitted to the parties that
'F' (along-with his sons 'S1' and 'S2' and
their wives) is residing in the dwelling
house described as House No.689/56, (Old
No.B-99), Jwala Nagar, Sabun Godaam,
Police Station T.P. Nagar, Meerut City,
District Meerut (hereinafter described as
'property'). At present 'F' and 'S1' and his
wife and family enjoy good relations to the
extent there is no litigation between those
parties, inter se. At the same time it does
appear that petitioner 'S2' and his wife
have fallen apart with 'S1' and his family.
The petitioners allege that 'F' is acting in
collusion and/or under the undue influence
of 'S1' and his family. As a result, at the
instigation and prompting offered by 'S1'
and his family, 'F' instituted a proceeding
under Section 22 of the Maintenance and
Welfare of Parents and Senior Citizens Act,
2007 (hereinafter referred to as 'Act') read
with Rule 21 of the Uttar Pradesh
Maintenance and Welfare of Parents and
Senior Citizens Rules, 2014 (hereinafter
referred to as 'Rules'), on 24.09.2021.
5. Further, according to the
petitioners, that proceeding was instituted
by 'F' only to defeat the earlier suit
proceedings instituted by the petitioner /
'S2' being O.S. No.837 of 2020, (Dinesh
Ahuja versus Indrajeet Ahuja and another)
seeking an injunction against 'F' and 'S1'.
That suit proceeding is described to be
pending. At the same time, no injunction
has been granted in such proceedings.

6. In the proceedings instituted
under Section 22 of the Act read with Rule
21 of the Rules, the petitioners appeared
and filed their objections on 08.11.2021. It
is their grievance that their objections have
been wrongly rejected, and erroneously, a
direction has been issued to evict the
petitioners from the property in question.

7. In such facts, Sri Nitin Sharma,
learned counsel for the petitioners has
primarily raised three submissions. First, it
has been submitted that the application
filed by 'F' under Section 22 of the Act
read with Rule 21 of the Rules is a proxy
litigation at the behest and instigation of
'S1'. 'F' has no grievance with the
petitioners. Only for reason of other
disputes existing between 'S1' and 'S2', 'F'
has been needlessly dragged into the
situation, at the behest of 'S1'.

8. Second, it has been submitted,
no proceeding may have been instituted
under the Act read with the Rules seeking
eviction simplicitor of the petitioners. At
most, 'F' would have a right to seek right to
claim maintenance allowance from such of
his sons who may inherent to his property.
Only in the event of default in payment of
maintenance allowance if any awarded, a
proceeding for eviction may follow. In the
present facts, neither 'F' has claimed any
maintenance allowance from the petitioners
11 All. Dinesh Ahuja @ Chinu & Anr. Vs. D.M. & Ors.
349
nor there pre-exists any order providing for
such maintenance allowance. In support of
his submission, learned counsel for the
petitioner has relied on a decision of a
learned single judge of this Court in
Krishan Kumar versus State of U.P. &
Ors. (Neutral Citation No. - 2023:AHCLKO:54220) decided on 18.08.2023 in
Writ Petition No.35884 of 2019 (2023 9
ADJ 113), wherein it has been observed as
below :-

"29. Further, this court is
of considered opinion that a
Tribunal, under Chapter-II of Act,
2007
cannot
direct
eviction
simplicitor from the property at the
instance of senior citizens, though
the Tribunal can direct the children
and relatives to make available a
residence to such senior citizens in
pursuance of an application, filed
under the abovesaid chapter. It
further emerges that the District
Magistrate
as
an
appellate
authority under the Act, 2007, can
ensure that no one should make any
hindrance to a senior citizen to
enjoy the property as per his 'need'
and the right to eviction is the last
step, where such authority finds
that the need of a senior citizen is
not being fulfilled. The case in
hands is that the present petitioner
is living in one room with his wife
and he is not making any hindrance
in the peaceful living of the parents,
in other part of the house and
therefore, so far as the objective of
the Act, 2007 is concerned, is no
way hampered by the petitioner."

9. Then reliance has been placed
on another decision of a learned single
judge of the Punjab and Haryana High
Court in Simrat Randhawa versus State
of Punjab & Others [2020 Supreme (P &
H) 5], wherein a learned single judge of the
Punjab and Haryana High Court declared
unconstitutional the Comprehensive Action
Plan (CAP in short), framed by the Punjab
State Government under the provisions of
the Act. Thus, a learned single judge of the
Punjab and Haryana High Court reached
the conclusion that there was no power
vested under the Act and the delegated
legislation arising thereunder, in support of
eviction simplicitor from any immovable
property, at the instance of the senior
citizen who may be the owner of such
property. To the same effect reliance has
been placed on a decision of Supreme in
Smt. S. Vanitha versus The Deputy
Commissioner Bengaluru Urban District
and Ors. [2021 (15) SCC 730], wherein in
the context of parallel proceedings having
arisen under the Protection of Women from
Domestic Violence Act, 2005 at the
instance of a daughter-in-law of a senior
citizen
(seeking
eviction
from
her
property), the Supreme Court set aside the
orders passed by the authorities under the
Act and the Rules framed thereunder and
thus protected the occupant daughter-in-law
from her eviction from such premises.

10. Last, he has relied on a
decision of a Division Bench of Patna High
Court in Ravi Shanker and another versus
State of Bihar and others, Letters Patent
Appeal No.907 of 2023 in Civil Writ
Jurisdiction Case No.7851 of 2022,
decided on 03.01.2024, wherein following
the Punjab and Patna High Court Simrat
Randhawa versus State of Punjab &
Others (supra) and Smt. S. Vanitha versus
The Deputy Commissioner Bengaluru
Urban District and Ors. (supra), the Patna
High Court has also ruled against eviction
350 INDIAN LAW REPORTS ALLAHABAD SERIES
simplicitor being offered at the instance of
a senior citizen, under the provisions of the
Act and Rules framed thereunder.

11. Third, it has been submitted
that in any case, the proceedings under the
Act and the Rules are summary in nature.
Natural jurisdiction of the Civil Courts has
neither be excluded nor eclipsed nor
restricted. In face of civil suit seeking
injunction instituted by the petitioner
No.1/'S2' prior to the institution of
application under the Act read with the
Rules framed thereunder and in face of
such suit proceedings being pending,
specifically with respect to the property in
dispute, no jurisdiction survived with the
authorities constituted under the Act and
the Rules framed thereunder to proceed to
pass any order to evict the petitioners
during pendency of O.S. No.837 of 2020,
(Dinesh Ahuja versus Indrajeet Ahuja and
another) pending in the court of Civil Judge
(S.D.), Meerut. Again reliance has been
placed on the above noted decisions
specially in Smt. S. Vanitha (supra) and
Ravi
Shanker
and
another
(supra).
Reliance has also been placed on another
decision of Supreme Court in Sau Rajani
versus Sau Smita & another, 2022 INSC
805.

12. On the other hand, Sri Vivek
Saran, learned counsel for the respondent
would submit that there is no collusion
between 'F' and 'S-I'. 'F' has instituted the
proceedings on his own account with
respect to his own property for reason of
his own grievance against 'S2'. Merely
because 'S1' is not opposed to 'F' and
merely because 'S1' may be supporting 'F'
generally in life and specifically in the
litigation between 'F' and 'S2', it may not
be said-that therefore there exists collusion
between 'F' and 'S1'. These being family
disputes and parties being closely related, it
is not an uncommon occurrence that a
parent may have no grievance with one of
his two more children or that they may
have grievance with another child. For
reason of absence of grievance between the
father of his first son / 'S1', it cannot be
said that the father is acting under the
influence of his first son or that the
proceeding instituted by the father is a
proxy litigation on behalf of his first son.
No material or evidence exists on record in
support of that objection raised by learned
counsel for the petitioner.

13. Coming to the second point
raised by learned counsel for the petitioner,
it has been submitted that the issue is no
longer res integra. Insofar as our court is
concerned, the issue was squarely thrashed
out by a co-ordinate bench in Shivani
Verma vs. State of U.P. and 4 others, 2023
(6) ADJ 496. In that decision the coordinate bench had the occasion to take
note of the comprehensive of CAP framed
by Government of U.P. in the context of the
Act and the Rules. For ready reference and
useful to our discussion, we may note that
the co-ordinate bench observed as below :-

"51. Chapter IV of the
Rules 2014, mandates for providing
the scheme for management of old
age homes for indigent senior
citizens.
52. Chapter V, relevant for
the purposes of the instant writ
petition, provides for duties and
power of the District Magistrates.
The relevant portion of Rule 21 of
Rules 2014, is extracted:
"21. Duties and Power of
the District Magistrate- (1) The
District Magsitrate shall perform
the duties and exercise the powers
11 All. Dinesh Ahuja @ Chinu & Anr. Vs. D.M. & Ors.
351
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."
53. On bare perusal the
Sub-rule (i) of Sub-rule (2) of Rule
21, it employs the expression
'property' which is referable to the
definition of 'property' defined
under Sub-clause (f) of Section 2 of
Act 2007. In other words, the
expression 'residence', has not been
employed in the Rules 2014.
Though 'property' would include
residential property but would
certainly not include or mean the
residence sought for maintenance
by the senior citizen. The provision
for
residence
could
include
property owned by the senior
citizen or that of his children or
relative as the case that may be
setup by the senior citizen before
the Tribunal claiming maintenance.
54. Further, Rules 2014
does not confer on the District
Magistrate
explicit
power
of
eviction of the occupants from the
residence of the senior citizen,
though, it confers power upon the
District Magistrate to ensure that
the 'life and property' of the senior
citizen is protected and they are
able to live securely with dignity.
55. The State Government
vide Government Order dated 21
March 2006, in purported exercise
of powers under Sub-section (2) of
Section 22 of Act 2007, has framed
policy for the senior citizen. The
relevant portion reads thus:

खिषयः उ.प्र. राज्य िररष्ठ नागररक नीखत के सम्िन्ध
में। महोदय, उपयुटक्त खिषय के सन्दभट में यह कहने का खनदेश हुआ है
खक प्रदेश के ग्रामीण ि शहरी िेत्र के िररष्ठ नागररकों की समस्याएं
अलग-अलग हैं, यथा-स्िास्थ्य सेिाओं की अनुपलब्धता एिं खगरते
स्िास्थ्य के कारण दैखनक कायों के साथ-साथ जीखिकोपाजटन की
समस्या पररिार के अन्य सदस्यों के रोजगार हेतु िाहर चले जाने पर
उनके स्ियं की देि-भाल करने की समस्या, अखधक आयु एिं
शारीररक असमथटता के कारण स्ियं की देि-भाल न कर पाने की
खस्थखत में खकसी अन्य के सहायक न होने की समस्या, अखधक उम्र
के कारण सखियता एिं गखतशीलता कम होने से एकाकीपन की
समस्या इत्याखद। िररष्ठ नागररकों को खिखभन्न सुरिा उपायों एिं
कायटिमों के माध्यम से शांखतपूिटक, सुरखित एिं सम्मानजनक ढंग से
जीिन-यापन का अिसर देने के उद्देश्य से प्रदेश के शहरी एंि ग्रामीण
िेत्र के िररष्ठ नागररकों हेतु मा. मंत्रीपररषद के आदेश अशासकीय
पत्र सं० 4/2/3/2016-सी.एवस. (1), खदनांक 14 माचट,
2016 के िम में "उ.प्र. राज्य िररष्ठ नागररक नीखत" खनम्नित
िनायी जाती है-1. उत्तर प्रदेश राज्य िररष्ठ नागररक नीखत के उद्देश्य
खनम्नित् होंगे- प्रदेश के िररष्ठ नागररकों की आखथटक सुरिा,
आिासीय सुखिधा, उनके समग्र कल्याण तथा उनकी आिश्यकताओं
की पूखतट हेतु यथािश्यक सहयोग की व्यिस्था सुखनखित करना।
दुव्यटिहार एिं शोषण से उनकी रिा की व्यिस्था सुखनखित करना।

56. Paragraph 2.4 of the policy with
regard to the 'protection of life and
property' reads thus:

वररष्ठ नागररकों को िीवन एवं
सम्पवि का भय प्रायः तीन तरह के व्यजक्तयों
यथा-स्वयं के पररवार से, सेवाकारों से तथा
अपराधीगण से होता है। सम्पवि की िाह में
पररवारीगण से, अकेले रहने की दशा में घरेल
नौकरों से एवं सुनसान अकेले घरों में रहने के
कारण घ मने वाले अपराचधयों से वररष्ठ
नागररक आसानी से सशकार हो िाते हैं। अतः
समाि के उक्त श्रेणी के लोगों से वररष्ठ
नागररक एवं उनकी सम्पवि की सुरक्षा ककया
िाना आवश्यक है। सड़क दुघटना भी वररष्ठ
नागररक के सलए घातक है तथा इससे भी
वद्धिनों की सुरक्षा की िानी आवश्यक है।
352 INDIAN LAW REPORTS ALLAHABAD SERIES
वररष्ठ नागररकों के िीवन एवं सम्पवि की
सुरक्षा हेतु कदम उठाए िाएंगे।

57. Most of the senior
citizens live with their parents (sic
children). They face tussle over
inheritance or division of property.
Elders come under intense pressure
to sell off their property or transfer
ownership to their sons and are
subjected to various forms of abuse
if they relent. Senior citizens face
harassment
and
threat
from
neighbours,
encroachment
of
property, etc.
58. In the event, property of
a senior citizen as defined under
Sub-clause (f) of Section 2 of Rules
2014, is under threat from any
person, District Magistrate has
been conferred power to protect the
life and property of the senior
citizen.
59.
Property
can
be
tangible items, viz., homes, cars or
appliances or it can refer to
intangible items that carry the
promise of future worth, such as,
stock
and
bond
certificates.
Intellectual property refers to idea
such as logo, design and patents.
60.
Chapter
V,
in
particular, Section 22, read with,
Rule 21(2)(i) and the Government
action plan/policy framed by the
State Government, it mandates and
directs
the
District
Magistrate/District Police officers
to protect the property of the senior
citizen.
Protection
of
property
without the power and authority of
eviction would render the provision
meaningless. Protection of property
would certainly include the power
to order eviction of the occupant
and restoration of the property to
the senior citizen.
61.
The
question
that
follows is which kind of property
and against whom. Any kind of
property [Section 2(f))] in the
possession
or
threat
of
dispossession by the senior citizen
from the relatives, family member,
helps, service providers or anti
social/criminals. Family members
would include children of senior
citizen. The senior citizen in respect
of such property other than covered
under
maintenance
(residence),
would
have
to
approach
the
District Magistrate for protection.
62. In other words, the
expression 'property' would not
include the property claimed by the
senior citizen for 'maintenance'
before the Tribunal for provision of
residence. Accordingly, a senior
citizen seeking maintenance, other
than monetary maintenance, i.e.,
only residence to the exclusion of
his children and relative of a
property in his possession or
otherwise owned by him, the
remedy
for
such
property
(residence) would lie before the
Tribunal.
63. In this backdrop, it
follows that protection of 'life and
property' would confer implicit
power upon the District Magistrate
to evict unauthorized occupant of
the
property,
including,
children/relative or third party from
the property of the senior citizen.
However, Tribunal alone would
have power to order eviction from
the
property
of
a
senior
citizen/parent on an application
claiming
maintenance
towards
11 All. Dinesh Ahuja @ Chinu & Anr. Vs. D.M. & Ors.
353
residence to the exclusion of his
children/grand-children.
64. The senior citizen while
making an application (Form A)
before the Tribunal may claim only
residence as maintenance for his
need to enable him to lead a
normal
and
peaceful
life,
irrespective of the plea that his
children/relatives are subjecting the
senior citizen to harassment or not.
The plea of harassment is not a
prerequisite
to
maintain
an
application
for
an
order
of
maintenance
for
provision
for
residence. In the event, Tribunal if
(sic) satisfied on the claim of the
senior citizen, it would order
maintenance for residence, that
would necessarily include eviction
of the occupant of the residence
being
a
consequence
of
the
maintenance order. [Rule 14] In
other
words,
Tribunal
while
exercising
powers
on
an
application seeking maintenance of
residence by a senior citizen, while
making order of maintenance for
provision
of
residence,
in
consequence can direct eviction of
the occupants, i.e., children/relative
but not against minor children. An
order
of
residence
towards
maintenance without passing the
consequential order of eviction
would render the power and
authority
of
the
Tribunal
meaningless.
65. It follows that Tribunal
has power to deal only with a
particular
kind
of
property
(residence) sought for maintenance
but lacks powers to adjudicate
upon any other kind of property of
the senior citizen. Such power is
vested with the District Magistrate
under Chapter V to protect any
kind of property, movable or
immovable, tangible or intangible
against
any
person,
i.e.,
children/relative or third party, but
would not include the property
sought by the senior citizen for
residence
towards
maintenance
from his children/relatives. Any
other
interpretation
would
be
conferring power upon the District
Magistrate to deal and adjudicate
upon property sought by the senior
citizen
for
provision
of
maintenance, merely for the reason
that the power of eviction has to be
read exclusively into the expression
'protection' of the property of
senior citizen. Tribunal has a
limited power while adjudicating
the issue of property required only
for the maintenance of the senior
citizen.
66.
Tribunal
can
be
approached by senior citizen or
parent, as the case may be, for
maintenance.
Whereas,
senior
citizen alone can approach the
District Magistrate for protection
of his life and property of any kind,
other than the property (residence)
involved in proceedings before the
Tribunal."

14. Thereafter, the co-ordinate
bench recorded its conclusions. Conclusion
number "iv" reads as below :-

" (iv) Chapter V is confined
to protection of life and property of
the senior citizen alone. Protection
of property would also include
eviction of the occupant from the
tangible property. The power is
354 INDIAN LAW REPORTS ALLAHABAD SERIES
conferred
on
the
District
Magistrate. The occupant could be
children / relatives or third party."

15. Thus, it has been submitted,
insofar as the State of U.P. is concerned,
there is no doubt as to existence of CAP.
The same has never been declared
unconstitutional. There is no challenge to
the CAP in these proceedings. As to the
power of the District Magistrate under
Chapter V of the Act, there exists no doubt.
A senior citizen may apply and the District
Magistrate may provide for eviction
simplicitor from an immovable property
belonging to a senior citizen.

16. The ratio of the learned single
judge decision in Krishna Kumar (supra)
to the extent it runs contrary to the ratio in
Shivani
Verma
(supra)
remains
per
incuriam and does not declare binding law.

17. With respect to the decision of
the Punjab and Haryana, High Court, in
Simrat Randhawa (supra) a point of
distinction has been drawn on the reasoning
that in the present facts there is no
challenge to the CAP and again in view of
co-ordinate bench decision in Shivani
Verma
(supra)
the
ratio
in
Simrat
Randhawa (supra) may remain of non
persuasive value. Also, it has been pointed
out that there exists an earlier decision of
Punjab and Haryana, High Court in
Harcharan Singh vs. Bhagat Singh and
others 2019 (2) R.C.R. (Civil) 313, wherein
it was observed as below:-

"The petitioner, herein, is
residing in the house of respondent
No.1 on the basis of concession given
by his father in the property owned
by him. He, as a licensee, is only
permitted to enjoy the possession of
the property licensed but without
creating any interest in the property.
A licence stands terminated the
moment the licensor conveys a notice
of termination of a licence. There is
no vested right of any type to remain
in possession of the property of
respondent
No.1.
Admittedly,
respondent No.1 is owner of the
property, in dispute. Respondent no.1
is required to be protected as
mandated by Section 22 of the Act
read with Rule 23 of the Rules and
para 1 of the Action Plan. There
cannot be any effective protection of
property of the senior citizens unless
the District Magistrate has the power
to put the senior citizen into
possession of the property and/or to
restrain or eject the person who
interferes in the possession of the
property of the senior citizen. The
protection of the property of a senior
citizen includes all incidences, rights
and obligations in respect of property
in question. Once a senior citizen
makes a complaint to District
Magistrate against his son to vacate
the premises of which the son is a
licensee, such summary procedure
ensures for the benefit of the senior
citizen. The petitioner has no right to
resist his eviction only on the ground
that he is the only son or he does not
have any source of income. The
eviction is one part of the right to
protect 8 of 10 the property of a
senior citizen and this right can be
exercised by a senior citizen in terms
of provisions of the statute, Rules
framed
and
the
Action
Plan
notified."

18. As to the decision of
the Supreme Court in Smt. S.
11 All. Dinesh Ahuja @ Chinu & Anr. Vs. D.M. & Ors.
355
Vanitha (surpa), it has been
submitted that, that decision has no
bearing to the present facts. In the
first place the Supreme Court has
not ruled or reasoned that no
summary eviction may arise under
the provisions of the Act and the
Rules framed thereunder. Second,
in the facts of that case, summary
eviction ordered under the Act was
set aside for reason of those
proceedings being a device.

19.

That
point
of
distinction as supported by the
reasoning of the co-ordinate bench
of this Court in Shivani Verma
(supra) has also been pressed
against the applicability of ratio of
the Patna High Court decision in
Ravi Shankar (supra).

20. As to the third
submission advanced by learned
counsel for the petitioner, it has
been submitted, in absence of any
jurisdictional error on part of the
statutory authority, it cannot be said
that the proceedings thus initiated
would abate or be placed in
abeyance during the pendency of a
civil suit instituted by one of the
parties, whose eviction has been
sought. If that were to be applied
by way of principle in law, no
proceeding for eviction may ever
arise under the Act and Rules
framed thereunder as the party at
risk of eviction may only file a civil
suit and defeat the entire object and
purpose of the Act and the Rules
framed thereunder.

21. Once the Parliament
has recognized the vulnerability
factor of the aged members of the
society and has enacted the special
welfare provisions to protect senior
citizens
from
exploitation
and
abuse,
occasioned
by
their
vulnerability, accompanying feeble
health and frugal means, there
exists no room to accept the line of
reasoning
being
canvassed
by
learned counsel for the petitioner.

22. Having heard leaned
counsel for the parties and perused
the record, in the first place we do
not find any evidence or material to
reach an exceptional finding that
the proceedings instituted by 'F'
are proxy proceedings instituted by
him for the benefit of 'S1'. Merely
because 'S1' may either be neutral
to the dispute between 'F' and 'S2'
and / or merely because 'S1' may
be supporting 'F' in his dispute
with 'S2', it may not lead to the
conclusion as suggested by learned
counsel for the petitioner.

23. No pleading made by
'F' and no process applied by 'F' is
shown to be one instituted or
performed by 'S1' for his benefit.
To that extent the objection raised
by the petitioner is found to be
misconceived and unfounded, on
facts and evidence.

24. As to the second
objection, we may have been
invited
to
offer
a
detailed
discussion with respect to the
submissions advanced by learned
counsel for the parties. However, as
noted above, the co-ordinate bench
in Shivani Verma (supra) speaking
through Suneet Kumar (J) has
356 INDIAN LAW REPORTS ALLAHABAD SERIES
made a detailed, lucid and nuanced
discussion covering all aspects and
facets of the submission presently
advanced. The decision of the
Supreme Court in Smt. S. Vanitha
(supra)
was
also
considered.
Having quoted in extenso the
reasoning offered by the coordinate bench, no useful or further
purpose may be served in repeating
the same. Suffice to record, we find
ourselves in complete agreement
with the reasoning of the coordinate
bench.
There
being
proceedings referable to Chapter V
of the Act, the pre-condition of
claim / or maintenance allowance
does not exist. The application filed
by
'F'
before
the
District
Magistrate
was
wholly
maintainable.

25. At the same time, with
respect to the decision in Smt. S.
Vanitha (supra), we may add that
the said decision arose in the
context of facts that were entirely
different. The applicable law and
its effect was also found different.
In the present case, no proceeding
has been instituted under the
Protection
of
Women
From
Domestic Violence Act, 2005, on
the contrary here the senior
citizen 'F' is seeking the eviction
of both 'S2' and his wife. In Smt.
S. Vanitha (supra), the senior
citizen
(mother-in-law),
was
seeking eviction of her daughterin-law alone, the latter having
suffered
proceeding
for
dissolution
of
her
marriage.
Further, the property in issue (in
that
case)
was
originally
purchased by the son of the senior
citizen. He sold it to his father
who in turn gifted it to his wife.

26.

Then,
the
said
daughter-in-law
had
also
instituted
proceedings
seeking
residence under the Protection of
Women From Domestic Violence
Act, 2005.Therefore, it was also
her objection that the proceeding
set up under the Act were by way
of a device to defeat her just
claim under that special Act.

27. Last, before the
Supreme Court, the submissions
as were advanced on behalf of the
daughter-in-law were recorded in
paragraph 9 in Smt. S. Vanitha
(supra) as below :-

"9. The appellant,
aggrieved
by
the
judgement of the Division
Bench of the High Court,
has preferred the present
special leave petition. Mr
Yatish
Mohan,
learned
Counsel
appearing
on
behalf of the appellant
submitted that:
(i) The appellant is
residing in her matrimonial
home
as
the
lawfully
wedded
spouse
of
the
Fourth respondent and she
cannot be evicted from her
shared household, in view
of the protection offered by
Section 17 of the Protection
of Women from Domestic
Violence Act 2005.
(ii) The proceeding
under Section 3 and 4 of
the Senior Citizens Act
11 All. Dinesh Ahuja @ Chinu & Anr. Vs. D.M. & Ors.
357
2007 was filed by her
mother-in-law and fatherin-law in connivance with
her estranged spouse to
deprive
her
of
her
matrimonial home;
(iii) The finding of
the Division Bench on the
appellant‟s
current
residential
status
was
based on a fraudulent set
up. The alleged postal
cover was dispatched on 21
June
2018,
during
the
pendency
of
the
proceedings
before
the
Single Judge, and merely
indicated
a
postal
endorsement
("no
such
person") as it arrived when
nobody was present at
home to receive it;
(iv) The decree for
the dissolution of marriage
which was passed against
the appellant by the Trial
Judge on 5 December 2013
has been set aside by the
High Court on 14 January
2016 and the proceedings
have been remanded back
to the jurisdictional Family
Court for a disposal afresh.
Hence, as of date, the
appellant continues to be in
a lawful relationship of
marriage with the Fourth
respondent and she has no
other place to live except
the suit premises, with her
minor daughter;
(v) The provisions
of the Senior Citizens Act
2007
have
been
manipulated to defeat the
rights of the appellant. The
manner
in
which
the
premises were transferred
by
the
spouse
of
the
appellant to his father and
the gift deed thereafter to
mother-in-law
of
the
appellant are indicative of
an attempt to misuse the
provisions of the Act, to
defeat the claims of the
appellant; and
(vi) In asserting her
right under Section 17 of
the PWDV Act 2005, the
appellant relies on the
decision of this Court in
Satish Chander Ahuja vs.
Sneha Ahuja (Civil Appeal
No. 2483 of 2020, decided
on 15 October 2020). In
sum and substance, it has
been
urged
that
the
authorities
constituted
under the Senior Citizens
Act,
2007
had
no
jurisdiction to order the
eviction of the appellant.
Moreover, the proceedings
have been utilised to secure
the eviction of the appellant
so as to deny her claim of a
right to reside in the shared
household under the PWDV
Act 2005."

28. Thus, no submission was
advanced to the effect that authorities
constituted under the Act and the Rules
framed thereunder have no jurisdiction to
seek eviction simplicitor under Chapter V
of the Act. Though, that nature of
submission may have existed earlier before
the Karnataka High Court in the writ
petition and the writ appeal, at the same
358 INDIAN LAW REPORTS ALLAHABAD SERIES
time, that submission was not advanced
before the Supreme Court. Therefore, the
same has not been considered by the
Supreme Court. That is not part of the ratio
of the decision of the Supreme Court.

29. In fact the Supreme Court
observed in summation point 24(ii) and
24(iv) that the daughter-in-law (in that
case) may not be evicted summarily during
pendency of her proceedings under the
Protection of Women From Domestic
Violence Act, 2005. Thus, it appears to us
the Supreme Court itself was cognizant that
the summary eviction proceeding may
otherwise arise and be concluded under the
Act and the Rules framed thereunder.
However, it reasoned that such proceeding
may not be concluded and made final
during the pendency of another proceedings
under another special Act. To that extent,
discussion exists in the decision of the
Supreme Court itself that Protection of
Women From Domestic Violence Act, 2005
and the protections thereunder are not to be
trifled or ignored.

30. In view of that reason offered
by us, we find ourselves in respectful
disagreement with the decision of the Patna
High Court in Ravi Shankar (supra) and
the decision of the Punjab and Haryana
High Court in Simrat Randhawa (supra).
The decision of the learned single judge of
this Court in Krishna Kumar (supra) is
distinguishable, that being referable to
proceedings under Chapter II of the Act and
not Chapter V of the Act, as is the present
case.

31. As to the third objection raised
by learned counsel for the petitioner based
on the decision of the Supreme Court in
Sau Rajani (supra), we find the same has
no application in the present case. While
the jurisdiction of the Civil Courts may
survive summary proceedings for eviction
under Chapter V of the Act read with the
Rules framed thereunder, read with the
CAP, that summary proceeding may remain
subject to the out come of any civil suit
wherein larger issues and other rights may
be involved.

32. At present, we make it clear
that we are not proposing to rule as to the
exact extent and nature of proceedings to
which the summary eviction proceedings
under Chapter V of the Act may remain
subject to. However, solely to deal with the
objections raised on the strength of plenary
jurisdiction of the Civil Courts, we provide
that the summary eviction under the Act
would remain subject to final out come of
O.S. No. 837 of 2020 (Dinesh Ahuja vs.
Indrajeet Ahuja and another) pending in the
Court of Civil Judge (Senior Division),
Meerut. In those proceedings larger and
other rights of the parties may be contested
and decided. Any other construction made
would defeat the entire object and purpose
of the special welfare law, namely, the Act
and the Rules framed thereunder.

33.