# Kisan Seva Sansthan & Anr v. State of U.P. & Ors

- **Citation:** (2021) 8 ILRA 920
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-28
- **Case number:** Writ C No. 2737 of 2021
- **Bench:** Naheed Ara Moonis, Saumitra Dayal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kisan-seva-sansthan-anr-v-state-of-u-p-ors-47332
- **Pages:** 12

## Headnote

Civil Law - Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 -
The
Uttar
Pradesh
Maintenance
and
Welfare of Parents and Senior Citizens
Rules, 2014 (hereinafter referred to as
''the Rules') have been framed and
enforced by the State Government of Uttar
Pradesh - s. 21. Duties and Powers of the
District Magistrate- Rule 21 (2) (iii) of
Rules District Magistrate of each district
alone has been vested with the authority
to ensure that the old age home complies
with the laws - Director, Social Welfare
has no jurisdiction to cancel the earlier
approval granted to the petitioner to run
an old age home (Para 8)
Earlier approval granted to the petitioner to run
an old age home cancelled on a bald assertion
that the facility is not being run as per the
norms - Held - Neither the violation of norms
has
been
specified
in
the
impugned
communication nor the petitioner has been
given any notice or opportunity to cure or
explain the same - Communication set aside.
(Para 28)
Allowed.(E-4)
List of Cases cited :

## Text

920 INDIAN LAW REPORTS ALLAHABAD SERIES
statutory
provision
including
penal
provision. The petitioners do not have
legally protected and judicially enforceable
subsisting right to ask for mandamus.

Answer to Questions

22. We answer question Nos.(i) and
(ii) in negative i.e. no protection can be
granted to petitioners by this Court in
exercise of powers conferred under Article
226 of the Constitution of India.

23. For all the reasons aforestated, we
are
not
inclined
to
exercise
our
discretionary jurisdiction. Consequently,
the writ petition fails and is hereby
dismissed.
----------
(2021)08ILR A920
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.07.2021

BEFORE

THE HON'BLE NAHEED ARA MOONIS, J.
THE HON'BLE SAUMITRA DAYAL SINGH, J.

Writ C No. 2737 of 2021

Kisan Seva Sansthan & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ved Prakash Shukla

Counsel for the Respondents:
C.S.C.

Civil Law - Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 -
The
Uttar
Pradesh
Maintenance
and
Welfare of Parents and Senior Citizens
Rules, 2014 (hereinafter referred to as
''the Rules') have been framed and
enforced by the State Government of Uttar
Pradesh - s. 21. Duties and Powers of the
District Magistrate- Rule 21 (2) (iii) of
Rules District Magistrate of each district
alone has been vested with the authority
to ensure that the old age home complies
with the laws - Director, Social Welfare
has no jurisdiction to cancel the earlier
approval granted to the petitioner to run
an old age home (Para 8)
Earlier approval granted to the petitioner to run
an old age home cancelled on a bald assertion
that the facility is not being run as per the
norms - Held - Neither the violation of norms
has
been
specified
in
the
impugned
communication nor the petitioner has been
given any notice or opportunity to cure or
explain the same - Communication set aside.
(Para 28)
Allowed.(E-4)
List of Cases cited :
1. Commissioner of Police Vs Gordhandas
Bhanji, AIR 1952 SC 16
2. Ashwani Kumar Vs U.O.I., (2019) 2 SCC 636
3. Nawabkhan Abbaskhan Vs St. of Guj., (1974)
2 SCC 121
(Delivered by Hon'ble Naheed Ara
Moonis, J.
&
Hon'ble Saumitra Dayal Singh, J.)

1. Heard Shri Ved Prakash Shukla,
learned counsel for the petitioners and Shri
Mata Prasad, learned Standing Counsel for
the State.

2. Present petition has been filed to
challenge
the
communication
dated
30.09.2020 issued by respondent no.4 - the
District Social Welfare Officer, Sant Kabir
Nagar. Thereby, the earlier approval
granted to the petitioner no.1 to run an old
age home has been cancelled and its
existing inmates-forty seven in number,
8 All. Kisan Seva Sansthan & Anr. Vs. State of U.P. & Ors.
921
directed to be shifted to another old age
home run by respondent no.5.

3. Relevant to the dispute, it may be
noted that petitioner no.1 is a registered
society. It established the facility namely,
an old age home at District Sant Kabir
Nagar with a capacity to accommodate 150
senior
citizens.
Petitioner
no.2
has
described himself as the Superintendent of
the old age home in question. On
15.03.2017, it was granted approval by
respondent no. 2 - the Director, Social
Welfare, Lucknow, Uttar Pradesh, to run
that facility. The initial term of that
approval was three years. The State has
also granted aid to the petitioner to run the
said old age home. Almost at the end of
three years, an inspection is stated to have
been conducted on 29.02.2020 at the
facility being run by the petitioner, by the
Deputy Director, Social Welfare, Lucknow,
U.P. A nineteen-point report was prepared
by the said Deputy Director in his
inspection note. Copy of the same is
annexed as Annexure CA-2 to the counter
affidavit filed by the State.

4. It is the case of the petitioner, without
any jurisdiction and without issuing any show
cause notice or calling for any explanation
from
the
petitioner,
the
impugned
communication dated 30.09.2020 was issued
by the Director, Social Welfare, cancelling
the approval of the petitioner facility, for a
solitary reason that that facility was not as per
the government norms. No other violation
has been made or elaborated in the impugned
communication.

5. Various grounds of challenge have
been pressed. Considering the wide impact of
such action by the State authorities, on the
vulnerable and exposed members of the
society, besides affecting the activity of the
petitioners, we have proceeded to consider
the dispute raised by the petitioner, in its
widest amplitude.

6. Having heard learned counsel for the
petitioner and learned Standing Counsel for
the State, we find, under section 19 of The
Maintenance and Welfare of Parents and
Senior Citizens Act, 2007 (hereinafter
referred
to
as
''the
Act'),
the
State
Government is obligated to establish such
number of old age homes in each district as
may be necessary, the minimum being one
old age home in each district of the State.
Under section 19(2) read section 32 (2) (d) of
the Act, the State Government has been
delegated, amongst others, the power to
frame Rules to provide for a Scheme for
management of old age homes and to
prescribe standards and types of services to
be provided as may be necessary for medical
care, entertainment etc. of the inmates of such
old age homes. Thus, The Uttar Pradesh
Maintenance and Welfare of Parents and
Senior Citizens Rules, 2014 (hereinafter
referred to as ''the Rules') have been framed
and enforced by the State Government of
Uttar Pradesh. Rules 20 and 21 of the Rules
read as under:

"20. Scheme for management of
oldage homes for indigent senior citizens.
- (1) Oldage homes established under
Section 19 of the Act shall be run in
accordance with the following norms and
standards:

(A) The home shall have physical
facilities and shall be run in accordance
with the operational norms as laid down in
Schedule III.

(B) Inmates of the home shall be
selected in accordance with the following
procedure:

(a) applications shall be invited
at appropriate intervals, but at least once
922 INDIAN LAW REPORTS ALLAHABAD SERIES
each year, from indigent senior citizens, as
defined in Section 19 of the Act, desirous of
living in the home;

(b) in case the number of eligible
applicants on any occasion is more than
the number of places available in a home
for admission, selection of inmates will be
made in the following manner:

(i) the more indigent and needy
will be given preference over the less
indigent applicants;

(ii) other things being equal,
older
senior
citizens
will
be
given
preference over the less old; and

(iii) other things being equal,
female applicants will be given preference
over male applicants.

Illiterate
and/or
very
senior
citizens may also be admitted without any
formal
application
if
the
competent
authority, is satisfied that the senior citizen
is not in a position to make a formal
application, but is badly in need of shelter;

(c)
While
considering
applications or cases for admission, no
distinction shall be made on the basis of
religion or caste;

(d) The home shall provide
separate lodging for men and women
inmates, unless a male and a female inmate
are either blood relations or a married
couple;

(e) Day-to-day affairs of the old
age home shall be managed by a
Management Committee, such that inmates
are also suitably represented on the
Committee.

(2) State Government may issued
detailed guidelines/orders from time to time
for admission into and management of
oldage homes in accordance with the
norms and standards laid down in sub-rule
(1) and the Schedule.

(3) State Government may form
implementation committee at district level
for management of day to day affairs of
oldage homes.

(4) Visitors will be allowed in the
oldage homes upon prior permission of the
home management within prescribed hours,
keeping in mind the security and welfare of
the inmates.

(5) Under sub-section (2) of
Section 9 of the Act and other relevant
sections the State Government/department
will start and publish integrated schemes
and appropriate guide line for senior
citizens."

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

(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
8 All. Kisan Seva Sansthan & Anr. Vs. State of U.P. & Ors.
923
especially their National Service Scheme
Units, organizations, 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 sensitization
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 help lines for senior citizens at
district headquarters, to begin with; and

(xi) perform such other function
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 consistent 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."

7. The Schedule to the Rules lays
down norms of physical facilities and
operational standards for an old age home
for indigent senior citizen, established
under section 19 of the Act. It reads as
below:

"NORMS
OF
PHYSICAL
FACILITIES
AND
OPERATIONAL
STANDARDS FOR AN OLD AGE HOME
FOR
INDIGENT
SENIOR
CITIZEN
ESTABLISHED UNDER SECTION 19 OF
THE ACT.

(I) Physical Facilities

(1) Land: The land for the old
age home should be adequate to compete
with
the
Floor-Area-Ratio
(FAR)
as
prescribed
by
the
relevant
urban
body/rural areas, the State Government
shall provide adequate land for setting up
of an old age home of requisite capacity
that is adequate for living, medical, dining,
toilet facilities, recreation, gardening,
further expansion, etc.

(2) Living Space: The oldage
home shall, as far as possible, have
minimum area per intimate as per inmate
as per the following norms:

(i) area of bedroom/dormitory
per inmate.. 7.5 Sq. metres

(ii) Living area or carpet area
per inmate i.e. including (i) above.. 12 Sq.
metres plus ancilliary areas like kitchen,
dining hall, recreation room, medical
924 INDIAN LAW REPORTS ALLAHABAD SERIES
room,
etc.,
but
excluding
verandah,
corridor, etc.

(2). Facilities

(1) The old age home shall have
the following facilities:

(i) residential area comprising
rooms/dormitories - separately for men and
women;

(ii) adequate water for drinking
and ancillary purposes;

(iii) electricity, fans and heating
arrangement for inmates (as necessary);

(iv) kitchen-cum-store-and office;

(v) dining hall;

(vi) adequate number of toilets
and baths, including toilets suitable for
disabled persons;

(vii)
recreation
facilities,
television, newspaper and an adequate
collection of books: and

(viii) first aid, sick bay, and
primary healthcare facilities.

(2) The old age home should be
barrier-free with provision of ramps and
handrails, and, wherever necessary, lifts
etc.

(3) Operational standards

(1) Supply of nutritious and
wholesome diet as per scale to be fixed by
the State Government.

(2) Adequate clothing and linen
for the inmates, including for the winter
season.

(3) Adequate arrangements for
sanitation,
hygiene,
and
watch
and
ward/security.

(4)
Arrangements
with
the
nearest
Government
hospital
for
emergency medical care, and with the
nearest
Police
Station
for
security
requirements."

8. In the first place, by virtue of the
clear intent expressed in Rule 21 (2) (iii) of
the Rules and in absence of any other
contrary provision of law, in that regard,
we find, the District Magistrate of each
district alone has been vested with the
authority to ensure that the old age home
such as the one set up by the petitioner
complies with the laws. The power to grant
approval
is
nothing
more
than
a
certification made that the old age home
conforms to the laws. The District Social
Welfare
Officer
is
not
the
District
Magistrate. That power vests in the District
Magistrate and no other authority. There is
no delegation of that authority, in law and
therefore,
none
is
permissible.
Consequently, the communication issued
by the District Social Welfare Officer dated
30.09.2020
is
found
to
be
without
jurisdiction and non-est.

9. Even otherwise, a perusal of the
Schedule to the Rules and therefore the
Scheme framed by the State Government
reveals, it provides for the standard of the
accommodation - with reference to FloorArea Ratio (FAR); private living space,
being size of bedroom; common living
area; separate rooms for men and women;
clean
water
for
drinking
and other
purposes; electricity supply; kitchen-cumstore; dining hall; toilets and bathrooms
including toilets for disabled persons;
recreation facilities; access to television,
newspaper, first aid, sick bay; other
facilities for assistance and comfort for
living of the old and disabled persons. That
Scheme also lays down the operational
standards required to be maintained, being
availability of wholesome diet, clothing,
sanitation, hygiene, security and access to
government
medical
hospitals
and
emergency medical aid as also police
station.

10. As to facts noted in the inspection
report dated 29.02.2020, it does not appear
8 All. Kisan Seva Sansthan & Anr. Vs. State of U.P. & Ors.
925
that any specific or functional or other
fundamental inadequacy or deficiency was
noted, in the facility being run by the
petitioner. Amongst the nineteen points on
which the report was submitted, it has been
observed, against point no.1 that the room
size is very small. At the same time, the
size of the rooms inspected has been
recorded as 8 x 10 feet (15 rooms) and 10 x
10 feet (3 rooms). Against the prescribed
norm of 7.5 sq. meters, the smaller room
size noted in the inspection report is 8' x 10'
feet, i.e. 7.43 sq. meter. Second, the record
of routine medical check-up (of the
inmates) was not found at the time of
inspection. Third, deficiencies were noted
with respect to admission granted by the
petitioner to the inmates. Thus, admission
of some of the inmates was found not
approved by the District Social Welfare
Officer. Direction was issued for necessary
correction to be made in that regard. Also,
against 15 employees required at the
petitioner's facility, the staff was found to
be short by three. However, the inspection
note also records that the petitioner was
seeking to make fresh appointments.
Fourth, the total number of inmates (47)
was observed to be less than the capacity
(150). Again, a direction was issued to fill
up the facility with adequate number of
inmates.

11.

Other
than
the
above
observations,
it
has
been
positively
mentioned in the inspection report that the
facility being run by the petitioner has
available, power back up of 5 kVA
electricity generator and another back up
provided by two power inverters sets. The
water availability was also found to be
proper. The location of the facility is about
500 meters from the police station. On
enquiry made, the inmates informed the
inspection team that they were being
helped to do Yoga exercises and to offer
prayers, at the facility. The district hospital
was reported to be 2 kms away from the
facility. The facility for bed and storage etc.
were found adequate. The food being
supplied to the inmates was found to be as
per menu that was being rotated. The store
was also inspected and the food ingredients
etc. were found to be of desired quality.
The kitchen facility was also found to be
proper. Out of forty seven inmates residing
at the petitioner's facility, 25 were males
and 18 females. The attendance register
was also found to have been properly
maintained. Cleanliness was also found to
be of desired standard at the petitioner's
facility. Facilities for recreation such as
availability of carrom board, playing cards,
etc. were found existing.

12. Detailed reference has been made
by us to the inspection report to bring out
the true nature of deficiencies noted
therein. None of the deficiencies noted in
the inspection report gave rise to any show
cause notice or other proceeding against the
petitioner by the District Magistrate or any
other authority, before the impugned
communication dated 30.09.2020 came to
be
issued.
In
fact,
none
of
those
deficiencies has been stated or cited as a
reason to cancel the approval granted to the
petitioner society.

13. On the other hand, it clearly
appears that the facility being run by the
petitioner was of desired quality, fit for
human inhabitation by the citizens in need
thereof, as contemplated by the Act and the
Rules framed thereunder. The detailed note
of inspection dated 29.02.2020 referred to
above, clearly points in that direction. That
inspection note per se does not indicate
either violation of Article 21 of the
Constitution of India or any provision of
926 INDIAN LAW REPORTS ALLAHABAD SERIES
the Act, the Rules or the Scheme proved
thereunder.

14. Though we are not inherently
inclined to draw a subjective satisfaction as
to the facts found during that inspection as
that exercise may not be desirable, though
not impermissible in exercise of the
extraordinary jurisdiction of this Court
under Article 226 of the Constitution of
India, we proceed to examine the prima
facie merit of the objections noted in the
inspection dated 29.02.2020. While doing
so, we are conscious of the time-tested rule
applicable to exercise of judicial review -
an order may be defended on the strength
of the recital it contains and not what the
authority may seek to rely in support
thereof, upon challenge being made to the
same. In Commissioner of Police Vs.
Gordhandas Bhanji, AIR 1952 SC 16, it
was observed:

"13. An attempt was made by
referring to the Commissioner's affidavit to
show that this was really an order of
cancellation made by him and that the
order was his order and not that of
Government. We are clear that public
orders, publicly made, in exercise of a
statutory authority cannot be construed in
the light of explanations subsequently given
by the officer making the order of what he
meant, or of what was in his mind, or what
he intended to do. Public orders made by
public authorities are meant to have public
effect and are intended to affect the actings
and conduct of those to whom they are
addressed
and
must
be
construed
objectively with reference to the language
used in the order itself."

15. We have been constrained to
adopt that pro-active approach as the
avowed object of the Act and the Rules is
humanitarian that in the context of the State
action is to advance the welfare object of
the State and to further the purpose, firmly
established
by
Article
21
of
the
Constitution of India. Thus, we allow the
learned standing counsel to rely on the
points noted in the inspection note to test if
there exists any material whatsoever to
contemplate a proceeding to cancel the
approval granted to the petitioner. If the
result of that enquiry would result in an
answer in the negative, there would survive
no need to adopt the jurisprudentially most
palatable option to remand the proceedings.
It is so because, cancellation of the
approval of the old age home, three years
after it has been run, affects, amongst
others, the right to shelter of the indigent
and other inmates of that home.

16. An old age home is not a
reformatory
home
or
a
place
of
confinement. It is the last hope offered by
the society, of humanity, to the indigent,
the abandoned, the uncared and the needy.
Once brought to that last refuge, it offers
hope of a goodlife that human existence
deserves by its very nature. It helps
preserve and rekindle that hope - in those
who need it the most. Such a place provides
an opportunity of some companionship,
emotional support, therapeutic occupation,
friendships and acquaintances, recreation
facilities and activities to overcome social
isolation, if not on a sustained or permanent
basis, at least on some intermittent and
temporary basis. It provides independence
to senior citizens in daily life and helps
them re-establish faith in high values of
life. Bereft of such ingredients, a human
life may truly be reduced to a bare animal
existence. In the context of the Act, the
Supreme Court in Ashwani Kumar v.
Union of India, (2019) 2 SCC 636
recognised the right to live with dignity,
8 All. Kisan Seva Sansthan & Anr. Vs. State of U.P. & Ors.
927
right to shelter and right to health as parts
of right to life under Article 21 of the
Constitution of India. It was held:

"44. We accept that the right to
life provided for in Article 21 of the
Constitution must be given an expansive
meaning. The right to life, we acknowledge,
encompasses several rights but for the time
being we are concerned with three
important constitutional rights, each one of
them being basic and fundamental. These
rights articulated by the petitioner are the
right to live with dignity, the right to shelter
and the right to health. The State is
obligated to ensure that these fundamental
rights are not only protected but are
enforced and made available to all
citizens".

17. Looked in that perspective, the
displacement of the inmates of an old age
home on whims and fancies of government
functionaries and others is not only
undesirable but would have a deleterious
impact on the already seriously impaired
fundamental right to live with dignity, of
the hapless citizens who are forced purely
by turn of circumstances and vagaries of
life, to reside at such homes for reasons not
of their making. It may not be forgotten, to
be housed and to be taken care of at an old
age home, upon being abandoned or not
cared enough, itself involves a dent to
human dignity, to lesser or larger extent,
depending on the individual circumstances
visiting
each
inmate,
immediately
preceding his admission to such facility.

18. However, with passage of time,
some wounds may heal. Hurt and injury to
one's dignity may be soothed by the balm
of love, affection and care received and
time lived in a conducive environment.
Such inmates/persons may develop desired
or
necessary
levels
of
comfort,
companionship, friendships, social inter
dependencies,
besides
enjoying
some
comfort
within
the
safe
physical
environment of an old age home where
they may be housed. To forcibly move out
such inmates for trivial, non-permissible
grounds noted in routine inspection notes
may be to allow for another violation of or
injury to arise, to their fundamental right to
live with dignity, though unintentionally.
Also, it would defeat the very object that
the Act, Rules & the Scheme seek to serve.

19. The inmates of an old age home
are not hostages of time. They are living
human beings whose life and dignity the
welfare State promises to protect. We
cannot fathom a situation where life and
dignity of a human being may be claimed
to have been protected if his opinion as to
his choice of residence is completely
ignored or not heard. One who may have
been abandoned or left alone cannot be
shifted from one facility to another with his
choice counting for nothing. We do not see
how his fundamental right to dignity may
be claimed to have been protected unless
his views are ascertained and considered. In
the other situation, though a free citizen he
would have been treated and dealt with as
not.

20. It is not only the life but the
dignity of human existence that the Act and
the Rules clearly seek to preserve. The
inmates
being
the
persons
whose
fundamental right to live with dignity and
to shelter is likely to be affected upon an
action that may be proposed by the District
Magistrate, a minimum opportunity of
being heard, is necessary wherever such
proposed action may result in dislocation of
the inmates. Though their views may not be
decisive as to the action to be taken yet,
928 INDIAN LAW REPORTS ALLAHABAD SERIES
due weightage must be given to the same
before a final decision is taken.

21. In Nawabkhan Abbaskhan v.
State of Gujarat, (1974) 2 SCC 121, it was
observed:

"7.
Unfortunately,
Counsel
overlooked the basic link-up between
constitutionality and deviation from the
audi
alteram
partem
rule
in
this
jurisdiction and chose to focus on the
familiar subject of natural justice as an
independent requirement and the illegality
following upon its non-compliance. In
Indian constitutional law, natural justice
does not exist as an absolute jural value
but is humanistically read by Courts into
those great rights enshrined in Part III as
the quintessence of reasonableness. We are
not unmindful that from Seneca's Medea,
the Magna Carta and Lord Coke to the
constitutional norms of modem nations and
the Universal Declaration of Human Rights
it is a deeply rooted principle that "the
body of no free man shall be taken, nor
imprisoned, nor disseised, nor outlawed,
nor banished nor destroyed in any way"
without opportunity for defence and one of
the first principles of this sense of justice is
that you must not permit one side to use
means of influencing a decision which
means are not known to the other side.

8.

9.

...

...

14.Where hearing is obligated by
a statute which affects the fundamental
right of a citizen, the duty to give the
hearing
sounds
in
constitutional
requirement and failure to comply with
such a duty is fatal. Maybe that in ordinary
legislation or at common law a tribunal,
having jurisdiction and failing to hear the
parties, may commit an illegality which
may render the proceedings voidable when
a direct attack is made thereon by way of
appeal, revision or review, but nullity is the
consequence of unconstitutionality and so
without going into the larger issue and its
plural divisions, we may roundly conclude
that the order of an administrative
authority
charged with
the
duty
of
complying with natural justice in the
exercise of power before restricting the
fundamental right of a citizen is void andab
initioof no legal efficacy. The duty to hear
manacles his jurisdictional exercise and
any act is, in its inception, void except
when performed in accordance with the
conditions laid down in regard to hearing.
Maybe, this is a radical approach, but the
alternative is a traversty of constitutional
guarantees, which leads to the conclusion
of post-legitimated disobedience of initially
unconstitutional orders........

15.

16.

....

....

20. We express no final opinion
on the many wide-ranging problems in
public law of illegal orders and violations
thereof by citizens, grave though some of
them may be. But we do hold that an order
which is void may be directly and
collaterally
challenged
in
legal
proceedings. An order is null and void if
the statute clothing the Administrative
Tribunal with power conditions it with the
obligation to hear, expressly or by
implication. Beyond doubt, an order which
infringes a fundamental freedom passed in
violation of the audi alteram partem rule is
a nullity. When a competent court holds
such official act or order invalid, or sets it
aside, it operates from nativity, i.e., the
impugned act or order was never valid. The
French jurists call it L'inexistence or
8 All. Kisan Seva Sansthan & Anr. Vs. State of U.P. & Ors.
929
outlawed order (Brown and Garner:
French Administrative Law, p. 127) and
could not found the ground for a
prosecution. On this limited ratio the
appellant is entitled to an acquittal. We
allow his appeal".

22. Thus, in our view, any action such
as cancellation of an earlier approval
granted to an old age home would result in
dislocation of it's inmates. It would have to
be tested if the inmates of such an old age
home perceive any loss of or violation of
their fundamental right to live with dignity.
To that end, we read into these proceedings
an opportunity of hearing to its inmates to
ascertain their individual and collective
views on the subject matter of such
proceedings. It is necessary to safeguard
their fundamental right to live with dignity.
The
impugned
communication
dated
30.09.2020 has clearly been issued without
ascertaining the views of the inmates on the
change proposed. For that reason as well
the
said
communication
cannot
be
sustained.

23. On merits, we find, against the
room size 7.5 sq. meters prescribed by the
Rules, the measurement of the smaller
rooms at the petitioners' facility was found
to be 7.432 sq meters. The difference, even
if exists is negligible. In fact, it is
meaningless. There is no satisfaction
recorded
of
that
room
size
being
insufficient or inadequate. Also, the room
size is not alleged to have been altered after
the grant of approval in 2017. The other
deficiencies recorded - of a few admissions
having been granted without approval of
the authorities and; less number of staff by
three (out of fifteen) were issues that ought
to have been resolved by issuing time
bound directions for necessary compliance
by the petitioner. Also, in absence of any
satisfaction of lack of medical care of the
inmates in general and/or any inmate in
particular, the lack of record of regular
medical check-up could not, per se, be
relied on to support action of cancellation
of approval to run the old age home that too
by way of a measure of first resort.
Corrective measures should have been
specified and enforced on the petitioner, in
a time bound manner. The respondent
authorities may remember the Act, the
Rules and the State government's Scheme
seek to pursue the welfare object of the
State and establish old age homes as a
collaborative effort by the State with active
participation of private individuals etc.
That spirit of the laws must pervade all
State actions to establish, run and improve
such facilities.

24. A holistic view ought to have
been taken before cancelling the petitioner's
approval. Here, it may be noted that such
facility could not have been granted
approval and it could not have run unless
proper inspection had been made prior to
its running. It is not the case of the
respondents that such inspection was not
carried out before the approval was
granted.
Before
cancellation
of
the
approval that results in closure of the
facility/old age home, facts must exist, be
ascertained and be considered by the
District Magistrate and his objective
satisfaction must be recorded, in writing to
justify such extreme action. It is necessary
to protect the interest of the vulnerable and
the needy i.e. the inmates or potential
inmates in particular and the society in
general, beside ensuring fairness in State
action.

25. Thus, cancellation of approval has
to be a measure of last resort, to be adopted
when no realistic possibility is seen to exist
930 INDIAN LAW REPORTS ALLAHABAD SERIES
to help or make such old age home run in
accordance with the laws. It may be
adopted
only
after
(i)
serious
deficiencies/lacuna/violations are noticed
by the respondent authorities in the course
of their regular inspections or otherwise,
(ii)
those
deficiencies/lacuna/violations
have been notified to the person running
the facility by means of a prior written
notice (issued by the District Magistrate)
requiring it to rectify the same in a
reasonable time or to show cause, (iii) the
person has failed to offer necessary
rectification and (iv) the District Magistrate
is satisfied for cogent reasons to be
recorded in writing (a) upon consideration
of the reply furnished by the petitioner to
that notice [(ii) above], that the facility/old
age home was being run contrary to any
mandatory provision of the Act or the
Rules or the Scheme framed by the State
Government, to the detriment of the
inmates/potential inmates and (b) that the
person failed to or is unable to make
necessary corrections as may ensure that
the old age home is run in accordance with
the Act read with the Rules and the
Scheme. At that stage and before taking
that final decision, the views of the inmates
of the old age home must be ascertained
and considered before taking any decision
that may result in transferring them out
from the existing facility.

26. In the present facts, it may be
safely assumed in the context of the
inspection report dated 29.02.2020 and the
earlier approval granted, the petitioner
facility was largely in order and therefore
the approval was granted to it in the year
2017. No serious or incurable defect or
deficiency having been noted and the
inmates being not dissatisfied with the
same, it was an obligation on the State
authorities to extend the approval rather
than initiate cancellation proceedings. An
approval once granted should be looked to
be continued though with equal conviction
all efforts should be continuously made to
ensure that such an old age home complies
with all laws and stays true to the object for
which it may have been established.

27. The power given to the
respondents under the Rules and the
Scheme is to monitor and to regulate such
facility. Once the facility has been set up in
accordance with law, its approval cannot be
cancelled or tinkered with in a casual or
whimsical manner as that action has,
amongst others, a negative impact on the
inmates for whose benefit it exists. It also
brings a wholly avoidable uncertainty in
their lives. Any defect or deficiency that
may have been noted in the running the
facility, duly approved, ought to be
corrected by issuing necessary directions
and by seeking necessary compliance/s, in
the spirit of collaboration, in a time bound
manner.

28. In that regard, we find that the
deficiencies with respect to non-approval of
the admission of the inmates, nonmaintenance of record of medical check-up
and shortage of staff have been noted in the
inspection report. Those have to be
corrected. To that extent, the inspection
report and the direction issued are wholly
correct. However, we are unable to
appreciate the cancellation order being
passed on a bald assertion that the facility
is not being run as per the norms. Neither
the violation of norms has been specified in
the impugned communication nor the
petitioner has been given any notice or
opportunity to cure or explain the same nor
we find any such gross violation exists, in
the present case. In the face of the
inspection report to which we have referred
8 All. M/S Promotional Club Vs. C.E.O. NOIDA & Anr.
931
to in detail, the petitioner is found to have
largely observed all norms under the Act
and the Rules. The observation to the
contrary
made
in
the
impugned
communication is plainly unfounded and
perverse.
As
to
the
other
matters,
appropriate directions should have been
issued for compliance.

29. For the above reasons, the
impugned
communication
dated
30.09.2020 cannot stand and is accordingly
set aside. The District Magistrate is
directed to consider the petitioner's claim
for renewal of approval, in light of the
observations
made
above
and
pass
appropriate orders within a period of two
weeks therefrom. In that regard, the
petitioners may file a proper application to
establish the fact of their continuing to
comply with the Act, the Rules and the
Scheme. That application may be filed
within one month from today along with a
copy of this order. The District Magistrate
shall take a decision thereon. As for the
Respondent no.5, no relief is granted
against that respondent. We allow both
facilities to exist. However, as to the forty
seven inmates originally housed at the old
age home set up by the petitioner, their
views may govern their admission at either
of the facilities.

30. Let a copy of this order be
communicated to the Chief Secretary,
Government of Uttar Pradeseh, by the
Registrar General of this Court for his
knowledge and issuance of necessary
directions to all concerned in the State of
Uttar Pradesh for necessary action and
compliance.

31. We may make it clear that the
present order has not been passed to
prohibit the respondents from cancelling
any approval granted to any old age home
but to confine those proceedings to the
extreme cases where such action becomes
necessary and unavoidable for any reason
as discussed in this order, or otherwise.

32. Accordingly, the present petition
is allowed.

33. No order as to costs.
----------
(2021)08ILR A931
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.04.2021

BEFORE

THE HON'BLE NAHEED ARA MOONIS, J.
THE HON'BLE SARAL SRIVASTAVA, J.

Writ C No. 56046 of 2013

M/S Promotional Club ...Petitioner
Versus
C.E.O. NOIDA & Anr. ...Respondents

Counsel for the Petitioner:
Sri Rakesh Kumar, Sri Chandra Kumar Rai,
Deba Siddiqui, Sri Kshitij Shailendra, Sri
Munesh K. Sharma, Sri Ravi Kiran Jain

Counsel for the Respondents:
C.S.C., Sri Kaushalendra Nath Singh, Sri
Shivam Yadav, Sri Neeraj Tripathi, Sri
Manish Goyal

Civil Law - Constitution of India - Art.226 -
Civil Procedure Code,1908 - O.47 - R.1 -
Review - limits to the exercise of the
power of review - In review it is not
permissible for an erroneous decision to
be
"reheard
and
corrected
-
while
exercising power of review, Court not act
as an appellate court and cannot rehear
the matter - party seeking review has to
establish that despite the exercise of due
diligence, it could not bring on record the
facts which it wants to bring on record