# Ms. Swaraj Varun & Anr v. State of U.P. & Ors

- **Citation:** (2020) 12 ILRA 496
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-21
- **Case number:** Writ - C No. 23223 of 2019
- **Bench:** Mrs. Sunita Agarwal, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ms-swaraj-varun-anr-v-state-of-u-p-ors-45625
- **Pages:** 7

## Headnote

(A) Civil law - Constitution of India - Article
21 - Maintenance and Welfare of Parents
and Senior Citizens Act, 2007 - Uttar
Pradesh
Maintenance
and
Welfare
of
Parents and Senior Citizens Rules, 2014 -
Rule 21 - duty of the District Magistrate to
ensure that life and property of senior
citizens
of
the
District
(area
of
his
jurisdiction) are protected and they are able
to live with security and dignity . (Para - 5)

District Magistrate rejected the application
moved by petitioner no. 1 (unmarried daughter
of petitioner no. 2) - whereas respondent no. 5
is his daughter-in-law - under the Maintenance
and Welfare of Parents and Senior Citizens Act,
2007 - eviction of respondent no. 5 and her two
sons from the house-in-question. (Para - 2,4)

Held: - The prayer for eviction or dispossession
of the respondent no. 5 and her two sons from
the house-in-question could not have been
granted by the District Magistrate in exercise of
the powers conferred on him under Rule 21 of
the Rules, 2014. The issue of eviction or
dispossession of respondent no. 5 from the
house-in-question which is stated to be her
matrimonial house can only be examined by a
Civil Court in a proper proceeding. No bar under
Section 27 of the Senior Citizens Act, 2007.
(Para - 29)

Writ Petition dismissed. (E-7)

List of Cases cited: -

## Text

496 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)12ILR A496
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.10.2020

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE JAYANT BANERJI, J.

Writ - C No. 23223 of 2019

Ms. Swaraj Varun & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Sudhir Bharti, Sri H.N. Singh

Counsel for the Respondents:
C.S.C., Sri Abhishek Gupta

(A) Civil law - Constitution of India - Article
21 - Maintenance and Welfare of Parents
and Senior Citizens Act, 2007 - Uttar
Pradesh
Maintenance
and
Welfare
of
Parents and Senior Citizens Rules, 2014 -
Rule 21 - duty of the District Magistrate to
ensure that life and property of senior
citizens
of
the
District
(area
of
his
jurisdiction) are protected and they are able
to live with security and dignity . (Para - 5)

District Magistrate rejected the application
moved by petitioner no. 1 (unmarried daughter
of petitioner no. 2) - whereas respondent no. 5
is his daughter-in-law - under the Maintenance
and Welfare of Parents and Senior Citizens Act,
2007 - eviction of respondent no. 5 and her two
sons from the house-in-question. (Para - 2,4)

Held: - The prayer for eviction or dispossession
of the respondent no. 5 and her two sons from
the house-in-question could not have been
granted by the District Magistrate in exercise of
the powers conferred on him under Rule 21 of
the Rules, 2014. The issue of eviction or
dispossession of respondent no. 5 from the
house-in-question which is stated to be her
matrimonial house can only be examined by a
Civil Court in a proper proceeding. No bar under
Section 27 of the Senior Citizens Act, 2007.
(Para - 29)

Writ Petition dismissed. (E-7)

List of Cases cited: -

1. Waqf Alalaulad & anr. Vs M/s. Sundardas
Daulatram & sons, 1996 (1) ARC 578

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J. & Hon'ble Jayant Banerji, J.)

1. Heard Sri H.N. Singh learned Senior
Advocate assisted by Sri Sudhir Bharti learned
counsel for the petitioners and Sri Abhishek
Gupta learned counsel for the respondent.

2. This writ petition is directed
against the order dated 28.6.2019 passed by
the District Magistrate, Gautam Budh
Nagar, whereby he has rejected the
application moved by petitioner no. 1
namely Ms. Swaraj Varun under the
Maintenance and Welfare of Parents and
Senior Citizens Act, 2007 (hereinafter
referred to as "the Senior Citizens Act,
2007"). The petitioner no. 1 is unmarried
daughter of petitioner no. 2, whereas
respondent no. 5 is his daughter-in-law.

3. The aforesaid order of rejection is
being challenged on the ground that the
petitioner no. 1 is a senior citizen aged about 60
years, whereas petitioner no. 2 (father of
petitioner no. 1) is 93 years old. The petitioner
no. 2 is incapable to move freely due to fracture
of his both hips. The brother of petitioner no. 1,
i.e. husband of respondent no. 5 had committed
suicide on 21.4.2004. The allegations are that
her brother (husband of respondent no. 5) had
died due to cruelty and atrocities committed by
her sister-in-law.

4. On 3.3.2019, respondent no. 5
threatened and abused both the petitioners
12 All. Ms. Swaraj Varun & Anr. Vs. State of U.P. & Ors.
497
and physically assaulted petitioner no. 1
with the help of her relatives. A first
information report dated 4.3.2019 was
lodged by the petitioner no. 1/applicant
against respondent no. 5. On 3.3.2019
itself, at about 21:07 Hours, the Station
House Officer of the Police Station, Sector
20, Noida, Gautam Budh Nagar came with
respondent no. 5 to the house of the
petitioners and forced the petitioner no. 1 to
give keys of the main gate of the house-inquestion to respondent no. 5. As a result of
the aforesaid, the applicant/petitioner no. 1
was constrained to file an application under
Rule 21 of the Uttar Pradesh Maintenance
and Welfare of Parents and Senior Citizens
Rules, 2014 (In short as "the Rules, 2014")
for eviction of respondent no. 5 and her two
sons from the house-in-question.

5. The submission of learned counsel
for the petitioners is that under Rule 21 of
the Rules, 2014, it is the duty of the District
Magistrate to ensure that life and property
of senior citizens of the District (area of his
jurisdiction) are protected and they are able
to live with security and dignity. Section 5
of the Senior Citizens Act, 2007 provides
that application under Section 4 of the Act
may be made by a senior citizen or any
person or organization authorized by him.
Section 6 deals with the jurisdiction of the
Tribunal which conducts the proceeding
under Section 5 of the Act against any
children or relative. Section 21 as contained
in Chapter V and Section 32 as contained
in Chapter VII of the Senior Citizens Act,
2007 empowers the State Government to
take all measures and to make rule, to
ensure protection of life and property of
senior citizens, for carrying out the
purposes of the Act.

6. The submission is that the Senior
Citizens Act, 2007 has been enacted not
only to provide for effective provisions for
maintenance and welfare of senior citizens
guaranteed under the Constitution of India,
but also to protect their property to meet its
objects. Rule 21 of the Rules, 2014 framed
in exercise of the powers conferred under
Section 32 of the Senior Citizens Act, 2007
enumerates duties and powers of the
District Magistrate in the area of his
jurisdiction and obligates to oversee and
monitor the work of Maintenance Tribunal
of the district. Rule 21 sub-rule (2)(i)
mandates the District Magistrate to take all
steps to protect the life and property of
senior citizens of the district.

7. In light of the above provisions, the
District Magistrate has committed a serious
error of law in rejecting the application
moved by the petitioner no. 1 as not
maintainable, while redirecting her to move
an application before the Maintenance
Tribunal. The observation in the order of
the District Magistrate that it was only
empowered to decide appeals against the
order of the Maintenance Tribunal is based
on misreading of the provisions. The
refusal for eviction of respondent no. 5
from the self-acquired house of the
petitioners is illegal. The application filed
by petitioner no. 1 and the affidavit of
petitioner no. 2 have been placed before us
to assert that petitioner no. 2 had authorized
his daughter (petitioner no. 1) to move
application seeking eviction of respondent
no. 5 and stated in his affidavit that
respondent no. 5 with her sons had never
been residing in the house-in-question and
further that he does not wish them to reside
therein.

8.

Learned
Standing
Counsel
defending the order passed by the District
Magistrate,
however,
states
that
the
petitioners cannot get any relief under the
498 INDIAN LAW REPORTS ALLAHABAD SERIES
Senior Citizens Act, inasmuch as, the
dispute essentially pertains to a gift deed
dated 24.1.2019 executed by petitioner no.
2 in favour of petitioner no. 1. It is not a
case where maintenance has been sought
by the senior citizen from respondent no. 5.
The appropriate remedy for the petitioners
is to file a civil suit or to participate in the
pending suit to ventilate their grievances.

9. In rejoinder, learned counsel for the
petitioners
vehemently
assailing
the
submissions of learned Standing Counsel
submits that the provisions of the Act, 2007 has
been given overriding effect on any other Act or
any instrument which are inconsistent with the
provisions of the present Act. Placing Section
27 of the Senior Citizens Act, 2007, it is urged
that the jurisdiction of Civil Courts in respect of
any matter under the Act is specifically barred.
The petitioners, therefore, cannot be relegated
to file a civil suit.

10. Reliance is placed on the decision
of this Court in Waqf Alalaulad and
another vs. M/s. Sundardas Daulatram
and sons report in 1996 (1) ARC 578 to
assert that writ can be issued to evict a
trespasser from the disputed property.

11. Having heard learned counsel for
the parties and perused the record, before
entering into the controversy at hand, we
deem it appropriate to go through the
provisions of the Senior Citizens Act, 2007
and the Rules, 2014 framed thereunder, in
order to understand the object and purpose
of the said provisions and the powers of the
District Magistrate to act upon such an
application. The short title of the Act is
"Maintenance and Welfare of Parents and
Senior Citizens Act, 2007". The words
"maintenance" and "welfare" both have
been defined in sub-sections (b) and (k) of
Section 2 as under:-

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

(k) "welfare" means provision for
food, health care, recreation centres and
other amenities necessary for the senior
citizens."

12. Senior citizen within the meaning
of the Act is a person who is a citizen of
India and has attained the age of sixty years
or above. Sections 4 to 18 as contained in
Chapter II of the Senior Citizens Act, 2007
deal with the issue of 'maintenance of
parents and senior citizens' and provide for
complete
procedure
for
moving
an
application for maintenance under Section
4; jurisdiction and Constitution of the
Maintenance Tribunal and the procedure to
deal with the same as also for enforcement
of the order of maintenance. Sections 15
and 16 provide for Constitution of
Appellate Tribunal and the procedure to
deal with an appeal against the order of a
Tribunal, filed by an aggrieved person.
Under Chapter II, an application for
maintenance may be made either by a
senior citizen or parent, as the case may be;
or if he is incapable, by any person or
organization authorized by him; or the
Tribunal may take cognizance suo motu.

13.

The
jurisdiction
of
the
Maintenance Tribunal is confined to the
District concerned. The enquiry held by the
Tribunal under Section 5 of the Act is a
summary enquiry, wherein the Tribunal
shall exercise the powers of the Civil Court
for the purpose enumerated in sub-section
(2) of Section 8. Section 9 empowers the
Tribunal to make an order of monthly
allowance at such monthly rate for the
maintenance of such senior citizen, as it
may deem fit, and to pay the same to such
senior citizen for the time period it directs
12 All. Ms. Swaraj Varun & Anr. Vs. State of U.P. & Ors.
499
on being satisfied that the children or
relatives, as the case may be, neglect or
refuse to maintain him a senior citizen who
is unable to maintain himself. Section 14
even empowers the Tribunal to award
simple interest in addition to the amount of
maintenance upto 18%. Proviso to Section
18 makes it clear that the application for
maintenance under the Senior Citizens Act,
2007 can be moved as the substitute to
application for maintenance under Chapter
IX of the Code of Criminal Procedure,
1973 and in case, any such application is
pending before the criminal court, the same
shall be allowed to be withdrawn on the
request of the person concerned.

14. Chapter III obliges the State
Government to establish and maintain Old
Age home in such number at such places,
as it may deem necessary and to prescribe a
scheme for management of such oldage
homes. Chapter IV mandates the State
Government to make arrangements in the
Government hospitals or Hospitals, clinics
funded fully or partially by it for medical
care of senior citizens. For protection of
life and property of senior citizens,
provisions are made under Chapter V
which contain Sections 21 to 23.

15. Section 21 mandates the State
Government to take all measures to give
effect to the provisions of the Act by giving
wide publicity through public media and
organizing sensitization and awareness
training on the issues relating to this Act
and
also
for
effective
co-ordination
between the services provided by the
concerned Ministries or Departments of the
Government to address the issues relating
to the welfare of the senior citizens.

16. The duty to give effect to the
provisions of the Act and to exercise all
necessary powers in that regard, has been
assigned to the District Magistrate within
the area of his jurisdiction. Section 23
confers right on the senior citizen to receive
maintenance from the transferee of his
property whether transfer by way of gift or
otherwise is made after the commencement
of this Act. In case of refusal or failure of
the transferee to provide for the basic
amenities and physical needs of the senior
citizens, the transfer may be declared void
by the Tribunal at the option of the
transferor/senior citizen. The right to
receive maintenance out of an estate or a
part thereof, transferred by a senior citizen,
as maintenance from the transferee is given
under sub-section (2) of Section 23. Section
24 imposes a criminal liability on any
person who is having care or protection of
any
senior
citizen
and
intentionally
abandons him. Under Section 22 the bar of
jurisdiction of Civil Court is in respect of
any matter to which the provisions of this
Act applies.

17. A plain and simple reading of the
whole Statute applying the golden rule of
construction
shows
that
the
words
"maintenance" and "welfare" of senior citizens
used in the Statute at different places has to be
given the same meaning as provided, to these
words, in the definition clause.

18. The "maintenance" as defined in
Clause 2(b) includes making provision for
food, clothing, residence and medical
attendance and treatment of senior citizen.
The "welfare" means making provision for
food, health care, recreation centres and
other amenities necessary for the senior
citizens.
For
providing
"maintenance"
within the meaning of the Senior Citizens
Act, 2007, Maintenance Tribunals have
been constituted under Section 7 of the Act
by the State Government.
500 INDIAN LAW REPORTS ALLAHABAD SERIES

19. The provisions of Sections 4 to 18 as
contained in Chapter II of the Act deal with
the first part of the Act, for making effective
provisions for the 'maintenance of parents and
senior citizens' guaranteed and recognized
under the Constitution of India. For "welfare
of parents and senior citizens" under Chapters
III, IV and V, the State Government has to
make different provisions for protection of
fundamental
rights
of
senior
citizens
guaranteed
under
Article
21
of
the
Constitution of India. All the measures to be
taken by the State Government for protection
of life and property of a senior citizen under
the Act are in furtherance of the said object.
The long title of the Act also provides an aid to
this construction and reads as under:-

"An Act to provide for more
effective provisions for the maintenance
and welfare of parents and senior citizens
guaranteed and recognised under the
Constitution and for matters connected
therewith or incidental thereto"

20. The cardinal rule of construction
of statutes is to read the statute literally,
that is, by giving to the words their
ordinary, natural and grammatical meaning.
Any interpretation or reading of the statute
which leads to absurdity should be avoided.
Whenever the question arises as to the
meaning of a certain provision in a Statute,
it is proper to read that provision in its
context. The intention of the legislature
must be found by reading the Statute as a
whole. Every clause of the Statute should
be construed with reference to the context
and other clauses of the Act, so as, as far as
possible, to make a consistent enactment of
the whole Statute. It is the most natural and
genuine exposition of a Statute.

21. As noted above in the Act, 2007,
the words "maintenance" and "welfare"
have been given the same meaning in the
whole Statute. The Rules, 2014 have been
framed by the State Goverment in exercise
of the powers under Section 32 of the Act
which empowers it to make rules for
carrying out for the purpose of the Act.

22. The purpose of the Act as noted
above is to make provisions for the
"maintenance and welfare of parents and
senior citizen" guaranteed and recognized
under the Constitution of India. The duties
and powers of the District Magistrate
enumerated in Rule 21 contained in
Chapter V of the Rules, 2014 are, thus, in
furtherance of the said object and purpose
of the Act as aforesaid. All the matters
connected therewith or incidental thereto
are obviously to be in relation to the object
and purpose of the Act.

23. One of the duties of the District
Magistrate under sub-rule (2)(i) of Rule 21
is to ensure that the lives and property of
senior citizens of the district are protected
and they are able to live with security and
dignity.

24. Placing the said rule, it is
vehemently contended by the learned
counsel for the petitioners that the District
Magistrate, Gautam Budh Nagar was duty
bound to order for eviction of respondent
no. 5 so as to protect the property of both
the senior citizens namely petitioner nos. 1
and 2.

25. The contention is that the housein-question is a self-acquired of petitioner
no. 2, father-in-law of respondent no. 5
whereas two rooms existing on the first
floor of the said house have been
constructed by petitioner no. 1 out of her
own earning. Both the petitioners are
residing at the ground floor of the house-in-
12 All. Ms. Swaraj Varun & Anr. Vs. State of U.P. & Ors.
501
question. A gift deed dated 24.1.2019 of
the house-in-question has been executed by
petitioner no. 2 in favour of petitioner no.
1. The petitioner no. 2, owner of the house
has given an affidavit before the District
Magistrate making his intention clear that
he does not wish that respondent no. 5
reside in the house-in-question.

26. Indisputably respondent no. 5 is
daughter-in-law of the petitioner no. 2 and sisterin-law of petitioner no. 1. She is a widow lady
and has two sons. She has categorically stated in
her objection before the District Magistrate that
the house-in-question is her matrimonial house
which fact could not be successfully disputed by
the petitioners herein. Apart from the assertion
made in paragraph '8' of the application moved
by petitioner no. 1, there is no allegation of any
physical or verbal abuse or assault on the
petitioners by respondent no. 5. A careful reading
of the application moved by petitioner no. 1
before the District Magistrate and the affidavit of
petitioner no. 2 filed in support thereof, clearly
shows that the dispute between the parties arose
as a result of the gift deed dated 24.1.2019
executed by petitioner no. 2 in favour of
petitioner no. 1. It also transpired that respondent
no. 5 has filed an Original Suit No. 1544 of 2019
(Rakhi Singh vs. Surendra Singh and others) for
permanent injunction and declaration of gift deed
as void document which is pending before the
Civil Judge, Senior Division, Gautam Budh
Nagar.

27. The prayers in the application dated
23.4.2019 moved by petitioner no. 1 before the
District Magistrate, Gautam Budh Nagar under
Rule 21 of the Rules, 2014 reads as under:-

"अतः श्रीमान िी से करबद्ध प्राथयना
है जक श्रीमान िी के स्तर से प्राजथयनी, िो वररष्ठ
नागररक है, के मामले में :-

(i) थथानीय पुजलस थाना सै-20 के
अवैध हस्तक्षेप को रूकवाया िाए।

(ii) प्राजथयनी के उक्त मकान पर
थथानीय पुजलस द्वारा कराये गए श्रीमजत राखी
व उसके पुत्रोां आशीर् जसांह व आयुर् जसांह के
अवैध कब्जे को िी तुरन्त हटवाया िाए।

(iii) प्राजथयनी के साथ घजटत मारपीट
की घटना जद०-03.03.19 की बावत थाना
सैक्टर-20, नौएड्ा, जिला-गौतमबुद्धनगर पर
प्राजथयनी द्वारा जद०-04.03.2019 को दी गई
तहरीर व प्राजथयनी को आयी चोटोां के अनुसार
समुजचत धाराओां में मुकदमा दिय करवाकर
उपरोक्त लोगो के क्तखलाफ कानूनी काययवाही
कराने के जलए उजचत जनदेश िारी करने की
कृपा की िाए, एवां

(iv) माता-जपता एांव वररष्ठ नागररक
िरण-पोर्ण एांव कल्याण अजधजनयम 2007 के
तहत प्राजथयनी, िो 61 वजर्य वररष्ठ मजहला है व
उसके जपता 93 वर्ीय वररष्ठ नागररक है, को
उजचत सुरक्षा व यथोजचत न्याय जदलवाने की
कृपा की िाए।"

28. We may note that though the
allegations have been made against the
Station House Officer, Police Station,
Sector 20, District Gautam Budh Nagar but
he has not been impleaded by name in the
present petition. The allegations of mala
fide made against the officer concerned
during the course of argument based on the
assertion in the application before the
District Magistrate, therefore, cannot be
entertained.

29. In light of the above discussion,
considering the object and purpose of the
Act, we are of the considered opinion that
the prayer for eviction or dispossession of
the respondent no. 5 and her two sons from
the house-in-question could not have been
granted by the District Magistrate in
exercise of the powers conferred on him
under Rule 21 of the Rules, 2014. The issue
of eviction or dispossession of respondent
502 INDIAN LAW REPORTS ALLAHABAD SERIES
no. 5 from the house-in-question which is
stated to be her matrimonial house can only
be examined by a Civil Court in a proper
proceeding. The bar under Section 27 of
the Senior Citizens Act, 2007 will not be
attracted
in
the
instant
case.
Even
otherwise, any such objection, if taken, has
to be examined by the competent court in
the suit proceeding.

30. Third prayer of the application as
noted above, is within the jurisdiction of
the criminal court of law under the Code of
Criminal Procedure.

31. As far as the last prayer is
concerned, the District Magistrate has
issued
necessary
directions
to
the
concerned officer to ensure that no illegal
interference is made in the life and property
of the applicant/petitioner no. 1 by any
person and in case of any such event,
appropriate action be taken by the Station
House Officer concerned.

32. For the above discussion, the
decision of the District Magistrate to reject
the application of petitioner no. 1, though
on technical ground of maintainability need
not be interfered.

33. However, as far as the direction
nos. '2' and '3' contained in the order dated
28th June, 2019 passed by the District
Magistrate, Gautam Budh Nagar, we find
that the direction dated 6.5.2019 having
been passed by way of an interim order on
the application in question cannot be given
effect to after dismissal of the application
itself on the ground of being not
entertainable. The interim direction dated
6.5.2019 having been merged in the final
order of rejection of the application dated
28th June, 2019, cannot survive and cannot
be given effect to. The respondent no. 5,
therefore, cannot be asked to vacate the
accommodation in her possession on the date of
filing of the application by the petitioner no. 1
i.e. on 28th June, 2019. Both the parties herein
have to maintain the position on the spot as on
the date of filing of the application. There shall
be no interference in the lives and property of
the petitioners or that of respondent no. 5 at the
hands of each other, so as to protect the right to
life guaranteed to every person under Article 21
of the Constitution of India.

34. For the above discussion, the
order impugned dated 28th June, 2019
passed by the District Magistrate, Gautam
Budh Nagar is modified to the above
extent.

35. It is, however, made clear that the
observations in this order hereinabove shall
not come in the way of the parties in the
regular
proceeding
in
the
plenary
jurisdiction of Criminal or Civil Court. The
parties are free to ventilate their grievances
before the competent Court of law which
shall deal with the same independently.

36. Subject to the above, the writ
petition is dismissed.
----------
(2020)12ILR A502
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.11.2020

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Arbitration and Conciliation Application No. 100 of 2019

M/s Vidyawati Construction Co. ...Applicant
Versus
Allahabad Dev. Auth. ...Respondent

Counsel for the Applicant:
Sri Suresh Kumar Maurya, Sri Ashish Kumar