# Onkar Nath Gaur & Anr v. D.M./President Appellate Tribunal Lko. & Ors

- **Citation:** (2025) 5 ILRA 1115
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-27
- **Case number:** Matter Under Article 227 No. 612 of 2024
- **Bench:** Attau Rahman Masoodi, Jaspreet Singh, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/onkar-nath-gaur-anr-v-d-m-president-appellate-tribunal-lko-ors-53434
- **Pages:** 51

## Headnote

Civil Law - Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 -
Sections 7, 8, 9, 21 & 23 - U.P.
Maintenance and Welfare of Parents and
Senior Citizens Rules, 2014 - Rules 14, 15,
16, 21 & 23 - Order of eviction of children,
relatives, or others from senior citizen's or
parent's property by Maintenance Tribunal
or Appellate Tribunal - Power of - Validity
- Maintenance Tribunal which is manned
by officer not below rank of Sub
Divisional Officer or Appellate Tribunal
which is manned by officer not below
rank of District Magistrate, cannot act
beyond powers given in Chapter II of
2007 Act - Since neither Act, 2007 nor
Rules,
2014
expressly
give
them
eviction powers, they cannot assume
such powers or use inherent powers
like civil courts have under Section 151
CPC - Thus, while deciding application
before it in terms of Section 5 of Act,
2007, they cannot pass eviction orders
under Sections 7, 8 or 9 of Act, 2007 -
Considering overall scheme of Act,
Section 21, 23 and Supreme Court
ruling
in
Urmila
Dixit
(infra),
Maintenance
Tribunal
/
Appellate
Tribunal can, after declaring a transfer
void, pass consequential orders for
possession in favour of senior citizen,
including
evicting
an
undesirable
person from senior citizen's property -
Matter referred to concerned Court for
decision on merits. (Para 2, 98, 99,
137)

Petition pending. (E-13)

List of Cases cited:
1116 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

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5 All. Onkar Nath Gaur & Anr. Vs. D.M./President Appellate Tribunal Lko. & Ors.
1115
previous order is not justifiable. Even, there
is no misrepresentation or fraud at the part
of petitioner in placing the orders passed by
different courts of Republic of Uzbekistan.

33. In this conspectus, as above, I
am of the considered view that despite
the
availability
of
remedy
of
review/recall
to
the
authorities
concerned, under certain conditions, as
permitted
under
several
judicial
pronouncements, no case is made out by
the respondents to maintain their review
application against the order dated
11.8.2023
passed
by
the
appellate
authority, who became functus officio
after final decision on the appeal. No
case
of
fraud,
forgery
or
misrepresentation has been made out to
bolster the order under challenge. The
order impugned is illegal, unwarranted
under law and without jurisdiction.
Existence of such order would prejudice
to the right and interest of the petitioner
and amounts to miscarriage of justice to
him.

34. Resultantly, instant writ petition
succeeds and is allowed. The order
impugned dated 4.10.2023 passed by the
reviewing authority is quashed, with no
order as to the costs.
----------
(2025) 5 ILRA 1115
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.05.2025

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE JASPREET SINGH, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Matter Under Article 227 No. 612 of 2024

Onkar Nath Gaur & Anr. ...Petitioners
Versus
D.M./President Appellate Tribunal Lko. &
Ors. ...Respondents

Counsel for the Petitioners:
Arvind
Kumar
Srivastava,
Anurag
Narain
Srivastava

Counsel for the Respondents:
C.S.C., Abhinav Pankaj, Avinash Pandey, Indra
Prakash, Mahendra Pratap Pandey, Vijay Krishna
Dwivedi

Civil Law - Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 -
Sections 7, 8, 9, 21 & 23 - U.P.
Maintenance and Welfare of Parents and
Senior Citizens Rules, 2014 - Rules 14, 15,
16, 21 & 23 - Order of eviction of children,
relatives, or others from senior citizen's or
parent's property by Maintenance Tribunal
or Appellate Tribunal - Power of - Validity
- Maintenance Tribunal which is manned
by officer not below rank of Sub
Divisional Officer or Appellate Tribunal
which is manned by officer not below
rank of District Magistrate, cannot act
beyond powers given in Chapter II of
2007 Act - Since neither Act, 2007 nor
Rules,
2014
expressly
give
them
eviction powers, they cannot assume
such powers or use inherent powers
like civil courts have under Section 151
CPC - Thus, while deciding application
before it in terms of Section 5 of Act,
2007, they cannot pass eviction orders
under Sections 7, 8 or 9 of Act, 2007 -
Considering overall scheme of Act,
Section 21, 23 and Supreme Court
ruling
in
Urmila
Dixit
(infra),
Maintenance
Tribunal
/
Appellate
Tribunal can, after declaring a transfer
void, pass consequential orders for
possession in favour of senior citizen,
including
evicting
an
undesirable
person from senior citizen's property -
Matter referred to concerned Court for
decision on merits. (Para 2, 98, 99,
137)

Petition pending. (E-13)

List of Cases cited:
1116 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Ms. Swaraj Varun & anr. Vs St. of U.P. & anr.;
2020 (11) ADJ 646 (DB), (Paras 28)

2. Bipraji Singh Vs St. of U.P. & ors.; 2021 SCC
OnLine All 964, (Paras 24 to 31)

3. Shivani Verma Vs St. of U.P. & ors.; 2023 (6)
ADJ 496 (DB), (Paras 65 to 67)

4. Abhishek Tiwari Vs St. of U.P., 2022 SCC
OnLine All 367

5. Khushboo Shukla Vs District Magistrate,
Lucknow & ors. 2021 SCC OnLine All 794

6.
S.
Vanitha
Vs
Deputy
Commissioner,
Bengaluru; 2021 (15) SCC 730

7. Dinesh Ahuja @ Chinu Vs District Magistrate;
2024 (6) AWC 6058 All, (Para 29 to 32)

8.
Om
Prakash
Manchanda
Vs
District
Magistrate/Collector, (2019) 132 ALR 566, (Para 26)

9. Randhir Singh Vs District Magistrate, Faizabad
& ors.; (2020) 146 RD 178 (DB), (Paras 28, 29)

10. Urmila Dixit Vs Sunil Saran Dixit & ors.;
2025 (2) SCC 787, (Para 13, 14, 23 to 26)

11. Samtola Devi Vs St. of U.P., 2025 SCC Online
SC 669 , (Para 30 to 35)

12. Rajeshwar Prasad Rao Vs St. of Bihar: 2025
Live Law (SC) 418, (Para 10, 11)

13. Krishna Kumar Vs St. of U.P.; 2023 SCC
OnLine All 645

14. Union of India Vs Deoki Nandan Aggarwal,
1992 Supp (1) SCC 323, (Para 14)

15. Maulavi Hussein Haji Abraham Umarji Vs St.
of Guj., (2004) 6 SCC 672, (Paras 17 to 23)

16. Ram Rattan Vs St. of U.P. (1977) 1 SCC 188,
(Para 4)
(Delivered by Hon'ble Jaspreet Singh, J.)

This judgment has been divided into
segments to facilitate analysis. These are:-
A
Introduction
2-4
B
Submissions on Behalf of
the Petitioner.
4-8
C
Submissions on Behalf of
the State of U.P.
8-9
D
Submissions on Behalf of
the Union of India.
9-13
E
Submissions on Behalf of
the Members of the Bar.
1315
F
Discussions and Analysis
1573
F.1
Question Nos. (i) and (ii)
1545
F.2
Question No. (iii).
4673
G
Summary and Answers to
the Questions Referred.
7374

A. Introduction

1. Questions of seminal importance
arising from The Maintenance and Welfare
of Parents and Senior Citizens Act, 2007
(hereinafter referred to as the "Act of
2007")
are
the
subject
matter
of
consideration of this Full Bench.

2. More often than not, matters are
coming up before the courts arising out of
the Act of 2007 where the issue is in
respect of the powers of the Maintenance
Tribunal or/and Appellate Tribunal to pass
an order of eviction of children, relative or
any third person from the property of the
senior citizen/the parent.

3. There were divergent views
amongst the learned Single Judges of this
Court.
However,
what
assumed
significance was the fact that there were
contrary Division Bench decisions as well.
In one such matter i.e., petition bearing No.
612 (A-227) of 2024 (Onkar Nath Gaur and
Another Vs. D.M/President, Appellate
Tribunal, Lucknow and 2 others), the
5 All. Onkar Nath Gaur & Anr. Vs. D.M./President Appellate Tribunal Lko. & Ors.
1117
learned Single Judge noticed the dichotomy
in the decisions of the Division Benches
wherein one view expressed was that under
the Act of 2007, the Maintenance Tribunal
and the Appellate Tribunal do not have the
power to order eviction or dispossession.
This view was expressed in Ms. Swaraj
Varun and Another Vs. State of U.P. and
Another; 2020 (11) ADJ 646 (DB) and
Bipraji Singh Vs. State of U.P. and
others; 2021 SCC OnLine All. 964.

4. However, a later Division Bench
took the view that an order of eviction can
be
passed
in
certain
cases
and
circumstances in Shivani Verma Vs. State
of U.P. and others; 2023 (6) ADJ 496
(DB) wherein the Court went on to overrule
two other decisions of learned Single
Judges of this Court in Abhishek Tiwari v.
State of U.P., 2022 SCC OnLine All 367
and Khushboo Shukla Vs. District
Magistrate, Lucknow and others 2021
SCC OnLine All 794. However, the
Division Bench in Shivani Verma (Supra)
did not notice the earlier two Division
Bench cases of Ms. Swaraj Varun (Supra)
and Bipraji Singh (Supra).

5. Thus, noticing the schism in the
views expressed by the Division Benches
and the variance in views expressed by
several single Judges in their respective
decisions without considering the impact of
the Division Bench judgments and noticing
the importance of the questions involved,
the learned Single Judge vide his order
dated 15th February, 2024 framed four
questions and referred the matter to be
answered by a Larger Bench for an
authoritative pronouncement.

6. It is in the aforesaid backdrop that
the following questions have been referred
for consideration of this Full Bench:-

"(i) What is the true scope and
powers of the maintenance Tribunal
constituted under Section 7 of the Act of
2007 which is contained in Chapter-II of
the Act of 2007 and whether the Tribunal in
exercise of its power in context with
Sections 7, 8 and 9 of the Act of 2007would
be empowered to pass an order of eviction
while deciding an application preferred
before it in terms of Section 5 of the Act of
2007?

(ii) What would be the true scope
and power of the District Magistrate who
exercises power as an Appellate Tribunal in
terms of Sections 15 and 16 of the Act of
2016 [sic] and whether in exercise of such
powers the Appellate Tribunal can pass an
order of eviction?

(iii) What is the true scope of
Section 21 of the Act of 2007which
deals with protection of life and
property of senior citizen which is
contained in Chapter-V of the Act of
2007 and to what extent the Authority
can pass an order for adjudging certain
transfers as void in terms of Section 23
of the Act of 2007 vis-a-vis the duties
and powers of the District Magistrate
conferred under Rules 21 and 22 of
Rules of 2014 and in this context
whether the orders for eviction can be
passed?

(iv) Whether the Division Bench
in Ms. Swarj Verma (Supra) (sic) and
Bipraji Singh (Supra) lays down correct
law or whether the law laid down by the
Division Bench in Shivani Verma (Supra)
lays down the correct law?"

7. Looking into the gravity of the
questions referred to this Full Bench and its
ramifications, this Court apart from hearing
the learned counsel for the parties had also
invited the members of the Bar to address
the Court on the issues before it.
1118 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Sri Anurag Narain Srivastava,
learned counsel appearing for the writ
petitioners canvassed the proposition that
under the Act of 2007, the Authorities have
the right to pass an order of eviction in
befitting cases. This proposition is also
supported by the learned Standing Counsel
Sri Nishant Shukla. Another member of the
Bar namely Sri Abhinav Pankaj, Advocate
also supported the aforesaid proposition as
canvassed by the learned counsel for the
writ-petitioners and the State.

9. On the other hand Sri Apoorva
Tiwari, learned member of the Oudh Bar
Association and Sri Sudhanshu Chauhan,
learned counsel who usually appears for the
Union of India canvassed the proposition
that under the Act of 2007, there is no
specific power conferred on the Authorities
to pass any order of eviction. The Rules
framed under the Act also do not confer
any such power and in absence of any
source of power, the Tribunal being an
Authority of limited jurisdiction cannot
exercise such powers to order an eviction.

B. Submissions on Behalf of the
Petitioners:-

10. Sri Anurag Narain Srivastava,
learned
counsel
for
the
petitioners
submitted that as the title of the Act of 2007
suggests the Act was primarily promulgated
not only for the maintenance but also for
the welfare of the parents and senior
citizens and in order to fulfill the objects of
the Act as well as to create a robust system
for providing maintenance and welfare for
the parents and senior citizens, the
Authorities under the Act of 2007 are
conferred with ample powers to pass such
orders as may be necessary and required to
protect the right of residence of the parents
and senior citizens and to enable them to
live with dignity and peace. The Authorities
in order to achieve this laudable objects of
the Act of 2007, are empowered to pass
appropriate orders including an order of
eviction of children or relatives, as the case
may be, if the same is inevitable for making
the
relief
granted
to
such
senior
citizen/parent
more
relevant
and
meaningful.

11. It was further submitted that the
scheme of the Act of 2007 is such that the
forum of appeal is provided only for the
senior citizen or the parent and it does not
give a right to the children or the
respondent in the complaint before the
Maintenance Tribunal to avail such a forum
of appeal. However, the Appellate Tribunal
while exercising the powers of appeal can
pass appropriate orders including an order
of eviction to ensure that the maintenance
which
had
been
claimed
by
the
parent/senior citizen is given a meaningful
expression since the term maintenance as
defined in the Act of 2007 is expansive and
it inter alia includes a right of residence.
Hence, a restrictive meaning should not be
ascribed and in order to ensure that the
senior citizen/parent who has a right of
residence accruing under the Act, can
reside with dignity then it necessarily
requires that the Appellate Tribunal is
clothed with the power to remove any such
obstruction
which
may
create
an
impediment for a senior citizen/parent to
live in a dignified, peaceful and respectable
manner.

12. It was further urged that Rule 21
as
framed
under
the
Uttar
Pradesh
Maintenance and Welfare of Parents and
Senior Citizens Rules, 2014 (hereinafter
referred to as the Rules of 2014) confers
powers on the District Magistrate to issue
such directions as may not be inconsistent
5 All. Onkar Nath Gaur & Anr. Vs. D.M./President Appellate Tribunal Lko. & Ors.
1119
with the Act and the District Magistrate
who is the Appellate Authority can pass
such orders as may be necessary including
the power to pass an order of eviction.

13. The learned counsel for the
petitioners further submitted that the Apex
Court
in
S.
Vanitha
Vs.
Deputy
Commissioner, Bengaluru; 2021 (15)
SCC 730 while considering the interplay
between the provisions of Protection of
Women from Domestic Violence Act, 2005
(hereinafter referred to as the "Act of 2005)
and considering the Act of 2007 held that
the two Acts and their provisions have to be
harmoniously construed and in certain
circumstances, the power of eviction which
lies in the hands of the Tribunal, can be
exercised by it.

14. Learned counsel for the petitioner
further submitted that where the attitude,
behaviour and actions of children/relatives
are not conducive viz. a viz. their
parents/senior
citizens,
then
in
such
circumstances, the senior citizen/parent
may experience trauma and face a difficult
situation and due to pressure and emotional
dependence it may be hard for the
parent/senior citizens to exclude or oust
such
children/relative
while
silently
braving the emotional and physical trauma.
In such circumstances, the Act of 2007
comes
to
the
aid
of
such
traumatized/neglected parent/senior citizen
and in proceedings under the Act of 2007,
if circumstances so warrant, then in the
given circumstances the Authorities in
deserving cases can pass appropriate
orders, including an order of eviction for
the benefit and welfare of the parent/senior
citizen.

15. It was further submitted that
where the property in question belongs to
the senior citizen and in cases where the
senior citizen/parent is mistreated by their
children/relatives then it cannot be said that
they lose their right to seek eviction of their
children/relatives as the status of such
children/relatives is nothing more than that
of a licensee and the parent/senior citizen in
capacity of the owner/licensor can seek the
removal/eviction of the children who really
speaking do not have any independent right
to retain or remain in the said property
against the wish of the parent/the senior
citizen.

16. The learned counsel for the
petitioners also submitted that in the
Division Bench decision of Swaraj Varun
(Supra), the Court did not consider the
scope of a residence order while the word
maintenance as defined in the Act includes
the right of residence and such an order of
residence
can
be
passed
by
the
Maintenance Tribunal. It was also urged
that the said decision does not consider the
object of Chapter V of the Act of 2007 nor
the scope of how a residence order, if
claimed by a senior citizen/parent, can be
made effective and meaningful especially
in light of Rules 21 and 24 of the Rules of
2014.

17. Moreover, it was pointed out that
the Division Bench in Bipraji Singh
(Supra) did not consider the decision of the
Apex Court in S. Vanitha (Supra) and for
the aforesaid reasons it cannot be pressed
into service to deny a right of eviction,
especially when the entire scheme of the
Act was not considered in the correct
perspective in the said decision.

18. It was lastly urged that the later
Division Bench decision of this Court in
Shivani Verma (Supra) noticed the entire
scheme of the Act and the Rules including
1120 INDIAN LAW REPORTS ALLAHABAD SERIES
the word 'maintenance' which includes the
right of residence. It also noticed the
impact and import of the decision of the
Apex Court in S. Vanitha (Supra) and thus
after taking an over all view, it has rightly
concluded that to provide the right of
residence/maintenance
to
the
senior
citizen/parent, if an order of eviction is
required, then the same can be validly
passed.

C. Submissions on Behalf of the
State of U.P.:-

19. Sri Nishant Shukla, learned
Standing Counsel for the State has
provided a copy of the Comprehensive
Action Plan framed by the Ministry of
Social Welfare of the State of U.P., for the
record
and
has
referred
to
various
provisions of the Act of 2007 and the Rules
of 2014 to submit that the Scheme of the
Act is such that it recognizes the dual need
of maintenance and protection of senior
citizens/ parents and it also includes the
element of avoidance of harassment for
such class. It emphasizes that in order to
avoid harassment of a senior citizen/parent
and to provide meaningful maintenance and
protection to a senior citizen/parent for
their dignified living, an order of eviction if
required in a befitting case, it can be
ordered by the Tribunal as well as the
District Magistrate as explained by a
Division Bench of this Court in Shivani
Verma (Supra).

20. It is urged that while the District
Magistrate in order to protect a senior
citizen or his property apart from resolving
any dispute relating to maintenance or in
the case where a right of usage of such
property of the senior citizen/parent is
involved then in order to provide the
necessary relief to such parent/ the senior
citizen, an order of eviction can be passed
and this would be a power implicit with the
Maintenance
Tribunal
and
District
Magistrate as the case may be.

21. It has further been submitted that
the Apex Court in S. Vanitha (Supra) had
recognized the power of the Tribunal to
pass an eviction order in compelling
circumstances and the only caveat which is
required to be exercised is that the Tribunal
or the District Magistrate, as the case may
be, must be satisfied and must record
reasons relating to the existence of
compelling circumstances which requires
passing of such an order by recording its
satisfaction that in case if such an order is
not passed then it would deprive the senior
citizen of his right to enjoy his property
with dignity and peace.

22. It was also submitted that Section
23 of the Act of 2007 clearly recognizes the
power vested with the Tribunal to declare a
document of transfer executed by a senior
citizen as void and this also reflects the
pervasive power conferred on the Tribunal,
then, as a concomitant, the Tribunal can
pass even an order to restore possession
including to evict a person, failing which
the Tribunal will fall short of its
obligation to provide a complete relief
and benefit to the senior citizen/parent
under the Act of 2007. Any other
meaning ascribed would amount to
defeating the object of the Act of 2007,
which would not be justified in law.
Hence, it cannot be said that the
Maintenance Tribunal or the District
Magistrate, as the case may be, is not
empowered to order eviction of the
children/relative under the Act of 2007.

D. Submissions on Behalf of the
Union of India:-
5 All. Onkar Nath Gaur & Anr. Vs. D.M./President Appellate Tribunal Lko. & Ors.
1121

23. Sri Sudhanshu Chauhan, learned
counsel appearing for the Union has
submitted
that
even
prior
to
the
promulgation of the Act of 2007, there
were certain Acts and provisions in law for
providing maintenance to parents, namely
the Hindu Adoption and Maintenance Act,
1956 (hereinafter referred to as the Act of
1956) and in the Criminal Procedure Code,
the provisions for maintenance is provided
under Section 125 Cr.P.C., which also finds
reflection in Section 144 of the Bhartiya
Nagrik
Suraksha
Sanhita
(hereinafter
referred to as "The BNSS") which are of
general nature and not confined to parents
or senior citizens alone.

24. It was further submitted that under
the Act of 1956, a person (though confined
to Hindus as defined in the Act) is bound to
maintain
his
or
her
legitimate
or
illegitimate children and his infirm or aged
parents. While the provisions of Section
125 Cr.P.C. and now Section 144 of BNSS
do not define the term 'maintenance' or
'parents' but the said provision uses the
terminology of providing maintenance inter
alia to father or mother who is unable to
maintain himself/herself and in such cases,
monthly allowance for interim maintenance
and expenses for the proceedings can be
awarded by the Magistrate concerned.

25. It was urged that Section 125
Cr.P.C is a general provision available to all
citizens irrespective of their religious
orientation, however, in contradistinction,
the Act of 1956 is available only to Hindus
as defined in the Act of 1956. Despite the
availability of provisions in law for
maintenance, an emergent need to address
certain pressing issues for providing care
for the elderly was felt. Noticing a gradual
shift in the societal composition leading the
older generation to spend most of their later
years in recluse which exposed them to
emotional neglect and in many cases, it
gave rise to maltreatment by resorting to
physical, financial and emotional neglect
and abuse.

26. These issues were becoming a
challenge for the society, hence, in order to
address such concerns, the Act of 2007
came into being. It provides for creation of
a Maintenance Tribunal which is required
to consider the issue of maintenance as
defined in Section 2 (b) of the Act of 2007
but such a Tribunal has not been vested
with any power to pass an order of eviction.

27. It has also been submitted by Sri
Chauhan that this issue was also under
consideration before the Parliament and
during the debate on the said bill which
later came into being as the Act of 2007, it
was observed that the matter relating to
protection of life and property of a senior
citizen/parent, basically pertains to law and
order and this is State subject, hence, it was
left
open
for
the
respective
State
Governments to examine the issue and if
they deemed appropriate they could have
legislated on the aforesaid aspect while
framing the Rules. Therefore, the issue of
eviction from a property was consciously
left out from being incorporated in the Act
by the Parliament and in the instant case
even
the
State
Governmet
has
not
incorporated or provided for any such
powers
to
either
the
Maintenance
Tribunal/Appellate Tribunal or the District
Magistrate, as the case may be.

28. It was next urged that Section 23
is a stand alone provision and in order to
invoke the same, the necessary conditions
as engrafted in the said Section have to be
first ascertained. If the said conditions do
exist, only then the Tribunal in a befitting
1122 INDIAN LAW REPORTS ALLAHABAD SERIES
case may pass an order as envisaged in the
said Section and as a concomitant a limited
order of restoring possession to the senior
citizen/parent may be passed, however, it
cannot be said that the Tribunal as a matter
of course, has been vested with powers to
order an eviction of children/relative or a
third party.

29. It was further submitted that
looking into the provisions of the Act of
2007, it would indicate that the Appellate
Authority constituted in terms of Section
15 and 16 of the Act of 2007 has distinct
and limited powers which is confined only
to assess the validity of the orders passed
by the Maintenance Tribunal. Even though
the District Magistrate has been designated
as an Appellate Authority, the powers of a
District Magistrate while it acts as an
Appellate Authority under the Act of 2007
are different than the powers which a
District Magistrate exercises as an authority
appointed by the State Government for
ensuring that the intent and purpose of the
Act is achieved. This can clearly be
discerned from the language of Sections 15
and 16 which relate to the powers exercised
as an Appellate Authority which is in
contradistinction to the language used in
Section 22 of the Act of 2007 as well as the
Rules made by the State Government in
exercise of powers under Section 32 of the
Act of 2007.

30. In this view, it was urged that the
District Magistrate does not appear to have
been conferred with powers to pass an
order of eviction unless it is held that the
power of eviction has been conferred upon
the District Magistrate in furtherance of the
comprehensive action plan as referred to in
Section 22 of the Act of 2007 or the Rules
framed by the State Government in
exercise of its rule making power. It was
also submitted that the power of eviction is
neither conferred on the Maintenance
Tribunal nor on the Appellate Authority,
which exercises powers under Section 16
of the Act of 2007. Besides, the aforesaid,
the District Magistrate has not been
conferred with any adjudicatory powers.
Clearly, the State Government has not
conferred any power of eviction on the
Tribunal or the District Magistrate in the
Act nor in the Rules and moreover no such
powers can be deciphered from the
comprehensive action plan framed by the
State Government under Section 22 (2) of
the Act of 2007. Hence, inferring that the
power to pass an order of eviction has been
vested in the Maintenance Tribunal or
Appellate
Tribunal
or
the
District
Magistrate, as implicit powers to further the
objects of the Act of 2007 may not be an
appropriate conclusion.

E. Submissions on Behalf of the
Members of the Bar:-

31. Sri Apoorva Tiwari, learned
counsel and member of the Bar assisted the
Court and he submitted that a Tribunal
constituted under a particular Act is bound
to exercise its duties within the four corners
of the Act itself. The Tribunal as created by
the Act of 2007 does not partake or assume
the nature or the role of a Court of Law
which are constituted either under Article
214 (for the High Courts) or Article 124
(for the Supreme Court) of the Constitution
of India or civil courts constituted under the
Bengal, Agra and Assam Act, 1887 or
under the Civil Courts Act of the respective
State.

32. A Tribunal does not possess
inherent powers, which otherwise may be
available with a court constituted under the
Constitution of India or under any Act
5 All. Onkar Nath Gaur & Anr. Vs. D.M./President Appellate Tribunal Lko. & Ors.
1123
which specifically confers such powers
upon a court or Tribunal. It was further
submitted that the Act of 2007, does not
confer any power of eviction either on the
Tribunal or the Appellate Authority.

33. Since the Act of 2007 is a special
Act, hence, its provisions have to be
construed by taking aid of the provisions in
the Act itself and external aids may not be
borrowed for the said purpose. While
considering any provision of the Act of
2007, the definition given in the Act itself
can be looked into and it would not be
appropriate to ascribe a particular meaning
or import some powers for the purposes of
the Act of 2007 by borrowing it from any
other Act or Rules.

34. It was urged that apart from
Section 23 of the Act of 2007 (though for a
limited purpose), there is no indication that
the Tribunal constituted under the Act of
2007 has been conferred with powers to
order eviction. Since the provision of
appeal has been couched in a restrictive
language permitting an appeal under the
Act of 2007 only at the behest of the Senior
Citizen/parent and not at the behest of an
'aggrieved party' hence, the Appellate
Authority would also exercise restrictive
powers i.e. to say, it cannot exercise powers
and pass such orders which the Tribunal in
the first instance has not been conferred or
entitled to pass.

35. In case where relief has been
claimed by a senior citizen/the parent in
terms of Section 23 of the Act of 2007
which if dismissed by the Tribunal and is
appealed only in such a case when the
Appellate
Authority
comes
to
the
conclusion that the order of the Tribunal
relating to the relief in Section 23 has been
unjustly denied, it may then, while
allowing the appeal pass such order of
restoring the possession in a limited
scenario, but not otherwise.

36. It was further urged that the Act of
2007 is a socio beneficial Act for the
parents and senior citizens, hence the
provisions have to be construed in a
manner as expressed in the Act itself. In
case any power which has not been
conferred by the Act or the Rules framed
thereunder then it may not necessarily
permit the Constitutional Court to take
recourse to powers of interpretation to read
such powers into the Act which was left out
by the legislature itself while promulgating
the special law.

37. It was further urged that it is true
that beneficial welfare legislation deserves
liberal interpretation but at the same time it
is to be seen that liberal interpretation may
not give rise to any anomalous situation, as
such an interpretation would not be
desirable. It was submitted that if an Act
confers powers to do certain acts in a
particular manner then such acts have to be
done in that manner alone and not
otherwise.

38. Since the power of eviction has
not been specifically provided in the Act of
2007 nor in the Rules of 2014, hence, such
powers cannot be exercised either by the
Tribunal, Appellate Tribunal or the District
Magistrate. Thus the view expressed by the
Division Bench in Shivani Verma (Supra)
may not be in consonance with the
provisions of the Act of 2007 and the Rules
of 2014.

39. It was also submitted that even
though Section 27 of the Act of 2007 bars
the jurisdiction of the Civil Courts but that
is to be read in context with the provisions
1124 INDIAN LAW REPORTS ALLAHABAD SERIES
of the Act of 2007, i.e. to say, only such
matters which are squarely covered and
governed by the Act of 2007, to that extent,
the jurisdiction of the Civil Courts would
be barred and not as a whole. This also is
indicative of the fact that the Tribunal and
the Appellate Authority constituted under
the Act are Tribunals of limited jurisdiction
which
exercises
powers
within
the
framework of the Act of 2007 and the
Rules of 2014 and not beyond it.

F. Discussions and Analysis:-

40. Having noticed the four questions
referred to this Court, it would reveal that
the first two questions relate to Chapter II
of the Act of 2007, hence, it will be
appropriate to take them for consideration
together.

F.1. Question Nos. (i) and (ii)

41. For the sake of convenience, the
questions no. (i) and (ii) are being
reproduced hereinafter:-

"(i) What is the true scope and
powers of the maintenance Tribunal
constituted under Section 7 of the Act of
2007 which is contained in Chapter-II of
the Act of 2007 and whether the Tribunal in
exercise of its power in context with
Sections 7, 8 and 9 of the Act of 2007would
be empowered to pass an order of eviction
while deciding an application preferred
before it in terms of Section 5 of the Act of
2007?

(ii) What would be the true scope
and power of the District Magistrate who
exercises power as an Appellate Tribunal in
terms of Sections 15 and 16 of the Act of
2016 (sic) and whether in exercise of such
powers the Appellate Tribunal can pass an
order of eviction?."

42. In order to answer the aforesaid
questions, it will be of prime importance to
first examine the Scheme of the Act of
2007 and the Rules of 2014 to get a clear
concept and picture to enable the Court to
reach to a conclusive answer to the
questions referred to it.

43. To begin with, the statements,
objects and reasons of the Act of 2007 are
being reproduced hereinafer:-

"Statement
of
Objects
and
Reasons.-Traditional norms and values of
the Indian society laid stress on providing
care for the elderly. However, due to
withering of the joint family system, a large
number of elderly are not being looked
after by their family. Consequently, many
older
persons,
particularly
widowed
women are now forced to spend their
twilight years all alone and are exposed to
emotional neglect and to lack of physical
and financial support. This clearly reveals
that ageing has become a major social
challenge and there is a need to give more
attention to the care and protection for the
older persons. Though the parents can
claim maintenance under the Code of
Criminal Procedure, 1973, the procedure is
both time-consuming as well as expensive.
Hence, there is a need to have simple,
inexpensive and speedy provisions to claim
maintenance for parents.

2. The Bill proposes to cast an
obligation on the persons who inherit the
property of children or their aged relatives
to maintain such aged relatives and also
proposes to make provisions for setting up
oldage homes for providing maintenance to
the indigent older persons.

The Bill further proposes to
provide better medical facilities to the
senior
citizens
and
provisions
for
protection of their life and property.
5 All. Onkar Nath Gaur & Anr. Vs. D.M./President Appellate Tribunal Lko. & Ors.
1125

3. The Bill, therefore, proposes to
provide for-

(a) appropriate mechanism to be
set up to provide need-based maintenance
to the parents and senior citizens;

(b)
providing better
medical
facilities to senior citizens;

(c) for institutionalisation of a
suitable mechanism for protection of life
and property of older persons;

(d) setting up of oldage homes in
every district.

4. The Bill seeks to achieve the
above objectives.

44. Noticing the objects and reasons
of the Act it reveals that the Act was
promulgated to cast an obligation on the
children/such persons who would inherit
the property of their parent/senior citizen or
their
relatives
to
ensure
that
such
parent/senior
citizen/relatives
are
maintained and they are not neglected in
their twilight years.

45. The Act also envisages recognition
by the State of a larger responsibility of
ensuring that the older populace is not left
destitute and adequate measures are taken
inter alia to set up old age homes and to
provide for maintenance and upkeep of it for
the benefit of indigent elderly persons in an
institutionalized manner. The Act of 2007
also envisions creation of an environment for
providing better medical facilities to the
senior citizens as well as for the protection of
their life and property.

46. It will now be appropriate to take a
birds eye view of the structure of the Act of
2007. The Act of 2007 would reveal that it
has been engrafted in seven Chapters. Each
chapter has a nomenclature and the content of
each chapter deals with different facets of
maintenance and welfare for the parents and
senior citizens under the broad umbrella of
the Act of 2007, as a whole.

47. The legislature while drafting this
Act has conveniently divided it into chapters
only. Generally, division of an Act into parts
and chapters largely depends on the length of
the Act and the subject matter to be dealt with
therein, although there is no hard and fast rule
relating to this style of drafting a legislation,
however, what can be ascertained is where
the subject matter of one group of sections is
so different from the subject matter of another
group, although it forms an integral part of
the main Act, then in such a case the Act can
be divided into Chapters. The idea conveyed
is that it can be conveniently dealt with as
separate units of one composite whole when
the subject matter is closely linked and
requires
only
separate
heading
for
convenience of classifacation and reference.
(See
T.K.
Vishavanathan
Legislative
Drafting: Shaping the Law for the new
Millennium, Indian Law Institute, IInd
Edition, 2007).

48. Noticing the legislative drafting, it
would reveal that in the Act of 2007, the
first chapter is titled 'Preliminary' and it
comprises of three sections. Section 1
introduces the extent and applicability of
the Act from the date of its commencement.
Section 2 refers to certain terms and words
used in the Act which has been defined and
more particulary the words 'Children',
'Maintenance',
'Parent',
'Property',
'Senior
Citizen',
'Tribunal'
and
'Welfare' need to be noticed, hence, the
definitions of the above mentioned terms
are being reproduced hereinafter.

"2. Definitions

(a)
"children"
includes
son,
daughter, grandson and grand-daughter
but does not include a minor;
1126 INDIAN LAW REPORTS ALLAHABAD SERIES

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

(d) "parent" means father or
mother whether biological, adoptive or step
father or step mother, as the case may be,
whether or not the father or the mother is a
senior citizen;

(e)
"prescribed"
means
prescribed by rules made by the State
Government under this Act;

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

(g) "relative" means any legal
heir of the childless senior citizen who is
not a minor and is in possession of or
would inherit his property after his death;

(h) "senior citizen" means any
person being a citizen of India, who has
attained the age of sixty years or above;

(j)
"Tribunal"
means
the
Maintenance Tribunal constituted under
Section 7;

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

49. Section 3 gives an overriding
effect to this Act and it reads as under:-

"3. Act to have overriding
effect.-The provisions of this Act shall
have
effect
notwithstanding
anything
inconsistent therewith contained in any
enactment other than this Act, or in any
instrument having effect by virtue of any
enactment other than this Act."

50. The next Chapter II has a caption
'Maintenance
of
Parents
and
Senior
Citizens'. In this Chapter, Section 4
categorically indicates that a senior citizen
including a parent who is unable to
maintain himself from his own earnings or
out of the property owned by him shall be
entitled to make an application under
Section 5 of the Act. Reference be made to
Sections 4 and 5 of the Act of 2007 which
read as under:-

"4. Maintenance of parents and
senior citizens.-(1) A senior citizen
including parent who is unable to maintain
himself from his own earning or out of the
property owned by him, shall be entitled to
make an application under Section 5 in
case of-

(i)
parent
or
grand-parent,
against one or more of his children not
being a minor;

(ii) a childless senior citizen,
against such of his relative referred to in
clause (g) of Section

(2) The obligation of the children
or relative, as the case may be, to maintain
a senior citizen extends to the needs of such
citizen so that senior citizen may lead a
normal life.

(3) The obligation of the children
to maintain his or her parent extends to the
needs of such parent either father or
mother or both, as the case may be, so that
such parent may lead a normal life.

(4) Any person being a relative of
a senior citizen and having sufficient means
shall maintain such senior citizen provided
he is in possession of the property of such
senior citizen or he would inherit the
property of such senior citizen:

Provided that where more than
one relatives are entitled to inherit the
property
of
a
senior
citizen,
the
maintenance shall be payable by such
relative the proportion in which they would
inherit his property.
5 All. Onkar Nath Gaur & Anr. Vs. D.M./President Appellate Tribunal Lko. & Ors.
1127

5.
Application
for
maintenance.-(1) An application
for
maintenance under Section 4, may be
made-

(a) by a senior citizen or a
parent, as the case may be; or