# Shivani Verma v. State of U.P. & Ors

- **Citation:** (2023) 6 ILRA 674
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-25
- **Case number:** Writ-C No. 16743 of 2023
- **Bench:** Suneet Kumar, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivani-verma-v-state-of-u-p-ors-50343
- **Pages:** 12

## Headnote

Civil Law - U.P. Maintenance and Welfare
of Parents and Senior Citizens Act 20072
- Uttar Pradesh Maintenance and Welfare
of Parents and Senior Citizens Rules 2014
- Chapter II and Chapter V of the Act
2007, read with, Rules 2014, operate in
different areas and for different purpose,
inter alia, pertaining to the property of the
senior citizen. 14 of 17 (ii) Chapter II is
confined to order of maintenance to be
passed by the Tribunal, which includes,
provision for residence either for the
senior citizen or parent against children/
relatives, but not against minor children
or third party. (iii) The Tribunal under
Chapter II of the Act 2007, read with,
Rules 2014, has sole jurisdiction to order
maintenance, inter alia, in regard to
provision of residence against children/
relative. The premises/property sought for
maintenance (residence) by the senior
citizen,
Tribunal
alone
would
have
jurisdiction. Tribunal while allowing the
application of maintenance in respect of
residence can order eviction from the said
residential
property
against
children/
relatives of the senior citizen. (iv) Chapter
V is confined to protection of life and
property of the senior citizen alone.
Protection of property would also include
eviction of the occupant from the tangible
property. The power is conferred on the
District Magistrate. The occupant could be
children/relatives
or
third
party.
(v)
District
Magistrate
under
Chapter
V,
however,
would
lack
jurisdiction
in
respect of property, i.e., maintenance for
provision for residence, to order eviction
of children/relatives from such property.
Though, District Magistrate would have
power in respect of any other kind of
property of the senior citizen, including,
order of eviction therefrom. (vi) Daughterin-law, being relative of the senior citizen,
6 All. Shivani Verma Vs. State of U.P. & Ors.
675
can be evicted from the residence sought
by the senior citizen for maintenance to
satisfy his needs for leading a normal life.
But such an order of eviction by the
Tribunal is subject to the order passed by
the competent Magistrate/civil court in
respect of shared household under the
Protection of Women from Domestic
Violence Act 2005 . The interest of the
senior citizen and the daughter-in-law
would have to be adjusted by the Tribunal
having regard to their competing needs.
Daughter-in-law cannot be evicted from
the 'shared household' in possession or
owned by the senior citizen , though,
suitable adjustment can be made by the
Tribunal (Para 68)
Allowed. (E-5)
List of Cases cited:

## Text

674 INDIAN LAW REPORTS ALLAHABAD SERIES
made under Section 80, having been clearly
specified under the section itself, the
reference made in the order impugned to
any other circumstance and on the basis
thereof to reject the application of the
petitioner, would therefore render the
exercise
of
the
discretionary
power
conferred on the authority as ultra vires and
invalid. The order impugned having thus
been passed in the absence of consideration
of the relevant provisions and being based
on wholly irrelevant consideration, is
accordingly held to be legally unsustainable
and is, therefore, set aside.

60. The matter is remitted to the
respondent No. 3 for passing a fresh order
on the basis of the provisions contained
under Section 82 of the Code, 2006, in the
light of the discussions made hereinabove.
The
respondent
authority
would
be
expected to pass an appropriate order on
the application of the petitioner under
Section 82 seeking cancellation of the
declaration
under
Section
80,
after
obtaining a fresh report, expeditiously, and
preferably within a period of three months
from the date of presentation of a certified
copy of this order.

61. The writ petition stands allowed
to the extent indicated above.
----------
(2023) 6 ILRA 674
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.05.2023

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Writ-C No. 16743 of 2023

Shivani Verma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Manoj Kumar Mishra, Tabassum Bano

Counsel for the Respondents:
C.S.C., Sri Mool Chandra Maurya
Civil Law - U.P. Maintenance and Welfare
of Parents and Senior Citizens Act 20072
- Uttar Pradesh Maintenance and Welfare
of Parents and Senior Citizens Rules 2014
- Chapter II and Chapter V of the Act
2007, read with, Rules 2014, operate in
different areas and for different purpose,
inter alia, pertaining to the property of the
senior citizen. 14 of 17 (ii) Chapter II is
confined to order of maintenance to be
passed by the Tribunal, which includes,
provision for residence either for the
senior citizen or parent against children/
relatives, but not against minor children
or third party. (iii) The Tribunal under
Chapter II of the Act 2007, read with,
Rules 2014, has sole jurisdiction to order
maintenance, inter alia, in regard to
provision of residence against children/
relative. The premises/property sought for
maintenance (residence) by the senior
citizen,
Tribunal
alone
would
have
jurisdiction. Tribunal while allowing the
application of maintenance in respect of
residence can order eviction from the said
residential
property
against
children/
relatives of the senior citizen. (iv) Chapter
V is confined to protection of life and
property of the senior citizen alone.
Protection of property would also include
eviction of the occupant from the tangible
property. The power is conferred on the
District Magistrate. The occupant could be
children/relatives
or
third
party.
(v)
District
Magistrate
under
Chapter
V,
however,
would
lack
jurisdiction
in
respect of property, i.e., maintenance for
provision for residence, to order eviction
of children/relatives from such property.
Though, District Magistrate would have
power in respect of any other kind of
property of the senior citizen, including,
order of eviction therefrom. (vi) Daughterin-law, being relative of the senior citizen,
6 All. Shivani Verma Vs. State of U.P. & Ors.
675
can be evicted from the residence sought
by the senior citizen for maintenance to
satisfy his needs for leading a normal life.
But such an order of eviction by the
Tribunal is subject to the order passed by
the competent Magistrate/civil court in
respect of shared household under the
Protection of Women from Domestic
Violence Act 2005 . The interest of the
senior citizen and the daughter-in-law
would have to be adjusted by the Tribunal
having regard to their competing needs.
Daughter-in-law cannot be evicted from
the 'shared household' in possession or
owned by the senior citizen , though,
suitable adjustment can be made by the
Tribunal (Para 68)
Allowed. (E-5)
List of Cases cited:
1. Abhishek Tiwari & anr. Vs St. of U.P. & ors.
Writ C No. 30835 of 2021, decided on 31 May,
2022
2. Khushboo Shukla Vs District Magistrate,
Lucknow & ors. Misc. Single No. 16212 of 2021,
decided on 2.11.2021
3. S. Vanitha Vs The Deputy Commissioner,
Bangaluru Urban District & ors. [2020] 12 SCR
1057

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Shri Manoj Kumar Mishra,
learned counsel for the petitioner, Shri
Mool Chandra Maurya, learned counsel
appearing for the respondent no. 4 and Shri
Mukul Tripathi, learned Standing Counsel
for the State-respondent.

2. Petitioner claims to be daughter-inlaw of the fourth respondent and sister-inlaw of fifth respondent. Fifth respondent is
the son of fourth respondent.

3. Petitioner, by the instant writ
petition, is challenging the order dated 6
April
2023,
passed
by
the
second
respondent-District Magistrate, DistrictEtah and the fact finding communication
dated 29 March 2023, issued by the third
respondent-Sub-Divisional
Magistrate
Etah, District-Etah.

4. By the order dated 6 April 2023,
based on the fact finding communication
dated 29 March 2023, submitted by the
Sub-Divisional Magistrate Etah, DistrictEtah, petitioner has been directed to be
evicted from House-A Block, Lodhipuram,
Peepal Adda, Etah, Thana-Kotwali Nagar,
District-Etah. The order came to be passed
on the directions of this Court in a writ
petition1, filed by the fourth respondent.

5. Learned counsel for the petitioner,
at the outset, has raised a question of law
that under the U.P. Maintenance and
Welfare of Parents and Senior Citizens Act
20072,
read
with,
Uttar
Pradesh
Maintenance and Welfare of Parents and
Senior Citizens Rules 20143, neither,
Tribunal nor the District Magistrate, has
been conferred power or authority to direct
eviction/ejectment
from
the
residence/property.
Accordingly,
the
impugned order is a nullity in the eye of
law.

6. It is further submitted that
petitioner, admittedly, being the daughterin-law of the fourth respondent, cannot be
evicted from the premises as she has
inherited the property after the death of her
husband.

7. Learned counsel appearing for the
petitioner has placed reliance on the
decision rendered by the Single Judge of
this Court in Abhishek Tiwari and
676 INDIAN LAW REPORTS ALLAHABAD SERIES
another vs. State of U.P. and others4, and
Khushboo
Shukla
vs.
District
Magistrate,
Lucknow
and
others5,
wherein, it has been categorically held that
Tribunal would lack jurisdiction to direct
eviction from the residence of the senior
citizen. Further, reliance has been placed
on
S.
Vanitha
vs.
The
Deputy
Commissioner,
Bangaluru
Urban
District and others6.

8. In rebuttal, learned counsel
appearing for the State-respondent and the
contesting respondent submits that the
expression
'maintenance'
includes,
residence. In the event children/relative of
the senior citizen/parent residing in the
premises owned/occupied by the senior
citizen/parent can seek eviction of their
children/relative from the premises in the
event they fail to maintain the senior
citizen/parent or are subjecting them to
harassment due to their old age.

9. It is further submitted that in the
expression 'maintenance' and 'property'
employed by the Legislature has different
connotation. The expression 'property'
would
not
include
the
expression
'residence'
for
the
purposes
of
'maintenance',
though
the
residential
accommodation
is
a
property.
The
jurisdiction in respect of maintenance for
residence and property has been conferred
on different authorities and for different
purpose.

11. Rival submissions fall for
consideration.

12. It is not in dispute that several civil
suits are pending inter se parties seeking
injunction in respect of the premises. The
question of title and possession, is also
involved in the pending suits.

13. At the outset, before adverting on
merits,
the
question
that
arises
for
consideration
is
as
to
whether
the
Maintenance Tribunal, and/or, the District
Magistrate has power and authority under
the Act 2007, read with, Rules 2014, to
direct/order eviction of children/relative of
the senior citizen while adjudicating upon
the order of maintenance of senior
citizens/parents.

14. Act 2007, came to be enacted by
the Parliament to provide for more
effective provisions for the maintenance
and welfare of parents and senior citizens,
guaranteed and recognized under the
Constitution and for matters connected
therewith and incidental thereto. The
statement of objects and reasons, notes that
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 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. In short,
despite there being a provision for
maintenance under the Code of Criminal
Procedure 1973, the Act provides for
institutionalization of a suitable mechanism
for protection of life and property of older
persons. The Act 2007 has overriding
effect,
notwithstanding
anything
inconsistent therewith, contained in any
enactment other than Act 2007.

15. The Act 2007 is divided into VII
chapters.
Chapter
II
provides
for
6 All. Shivani Verma Vs. State of U.P. & Ors.
677
maintenance of parents and senior citizens,
whereas, Chapter V deals with the
protection of life and property of senior
citizens.

16. The question raised in the present
writ petition confines to the analysis and
interpretation
of
the
provisions,
in
particular, under Chapter II and Chapter V
of Act 2007, read with, the Rules 2014,
framed thereunder.

17. Legislature has employed the
expression 'senior citizen' and 'parent'.
Senior citizen is a person who has attained
the age of sixty years or more. [Section
2(4)]. Sub-Clause (d) of Section 2 defines
'parent' which reads thus:

" '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"

18. A parent need not be a senior
citizen, but, in case a parent is unable to
maintain himself/herself and unable to lead
a normal life, he/she is entitled to raise a
claim before the Tribunal for maintenance.
In other words, a senior citizen includes a
'parent and grand-parent', but parent need
not be a senior citizen.

19. Section 4 under Chapter II
mandates that 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 against one or
more of his children, not being a minor, for
maintenance. A childless senior citizen can
claim maintenance against his relative.

20. Sub-section (2) of Section 4 casts
an obligation on the children or relative, as
the case may be, to maintain a senior
citizen which extends to the needs of such
citizen so that the senior citizen may lead a
normal life.

21. Sub-section (3) of Section 4 casts
an obligation on the children to maintain
his or her parent, i.e., either father or
mother or both, as the case may be, so that
such parent may lead a normal life.

22. Sub-section (4) of Section 4
provides that any person being a relative of
a senior citizen and having sufficient means
shall maintain such citizen provided he is in
possession of the property of such senior
citizen or he would inherit the property of
such senior citizen/parent.

23. On careful reading of Section 4,
senior citizen can claim maintenance from
his children or relatives, as the case may
be. A parent, whereas, has to claim
maintenance from his children, not from a
relative.

24. Sub-Clause (b) of Section 2
defines 'maintenance' which reads thus:

" 'maintenance' includes provision for
food, clothing, residence and medical
attendance and treatment."

25. The definition is inclusive and not
exhaustive and, in particular, includes
provision for residence. We will return to
the meaning of residence later on. On
conjoint reading of Section 4 along with the
definition of maintenance, it is explicit that
senior
citizen/parent
is
entitled
to
maintenance from their children or relative,
as the case may be, which extends to the
needs of such senior citizen/parent so that
such senior citizen or parent leads a normal
life. It follows that residence is a facet of
678 INDIAN LAW REPORTS ALLAHABAD SERIES
maintenance and the senior citizen may
claim
maintenance
from
his
children/relative,
inter
alia,
only
of
residence to their exclusion if in the
opinion of the senior citizen, it extends to
his needs to enable the senior citizen to
lead a normal life with dignity, provided,
the senior citizen is the owner of the
property,
whether,
self
acquired
or
ancestral. In the event the senior citizen
does not own a residence, then in that event
his children/relative would have to provide
the
residence,
as
the
expression
'maintenance' includes residence. In cases
where the children/relative are unable to
provide residence to the senior citizen, for
any reason whatsoever, the senior citizen
would be setup in an old age home of the
district by the Tribunal.

26. Only those relatives of the senior
citizen is called upon to maintain senior
citizen
provided
the
relative
is
in
possession of the property of the senior
citizen or he would inherit the property of
such senior citizen.

27. Relative has been defined in Subclause (g) of Section 2 which reads thus:

" '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"

28. On careful reading of the
definition of 'relative', it employs the
expression 'means' making the definition
exhaustive and restricted to the 'legal heir
of a childless senior citizen', in possession
or would inherit his property after his
death. In other words, to be a relative of a
senior citizen:

(i) the senior citizen must be childless;

(ii) relative must not be a minor;

(iii) must be a legal heir of the senior
citizen;

(iv) must be in possession or must
inherit his property.

29. The expression used is property
and not residence being claimed by the
senior citizen towards maintenance. In
other words, the relative who inherits any
kind of property, i.e., tangible or intangible
of the senior citizen would be relative of
the senior citizen.

30. The senior citizen/parent would
have
to
approach
the
Tribunal
for
maintenance by making an application as
mandated under Section 5, read with, Rule
5 in Form A.

31. Sub-Clause (j) of Section 2
defines 'Tribunal' which reads thus:

" 'Tribunal' means the Maintenance
Tribunal constituted under Section 7."

32. Section 6 of Act 2007, provides
for jurisdiction and procedure and Section
7 provides for constitution of Maintenance
Tribunal. The State Government is called
upon, vide notification in the Official
Gazette, to constitute for each Sub-Division
one or more Tribunals, as may be specified
in the notification, for the purpose of
adjudicating and deciding upon the order of
maintenance.

33. Section 8 provides for summary
procedure. Tribunal shall have powers of a
Civil Court for the purposes specified in
Sub-section (2) of Section 8.

34. Section 9 provides that the
Tribunal
shall
pass
an
order
for
maintenance if children or relative, as the
6 All. Shivani Verma Vs. State of U.P. & Ors.
679
case may be, neglect or refuse to maintain a
senior citizen being unable to maintain
himself.
The
maximum
maintenance
allowance which may be ordered by the
Tribunal shall be such as may be prescribed
by the State Government but shall not
exceed ten thousand rupees per month.
[Section 9(2)/Rule 15]

35.

Section
11
provides
for
enforcement of order of maintenance. A
maintenance order made under Act 2007,
shall have same force and effect as an order
passed under Chapter IX of the Code of
Criminal Procedure 1973, and shall be
executed in the manner prescribed for the
execution of such orders.

36. On bare perusal of the provisions
contained in Chapter II, read with the
definition of 'maintenance', 'children',
'parent' and 'relative', it is explicitly clear
that Tribunal has jurisdiction to pass order
for maintenance either against the children
of the senior citizen/parent or against a
relative of a senior citizen, as the case may
be.
In
other
words,
Tribunal
lacks
jurisdiction to pass order in respect of
maintenance against third parties, i.e., other
than children/relative of the senior citizen
for maintenance or in occupation of the
property of the senior citizen sought before
the Tribunal for residence, or for that
matter, income from a property for
maintenance.

37. Before we proceed, further, it
would
be
apposite
to
examine
the
provisions under Chapter V, of Act 2007,
which provides for protection of 'life and
property' of a senior citizen. The chapter
does not refer either to 'parent' or
'relative'.

38. Section 22 empowers the State
Government to confer such powers and
impose
such
duties
on
the
District
Magistrate as may be necessary to ensure
that the provisions of the Act 2007, is
properly carried out.

39. Sub-section (2) mandates the State
Government to prescribe a comprehensive
action plan for providing protection of life
and property of the senior citizen. SubClause (2) of Section 22 is extracted:

"(2) The State Government shall
prescribe a comprehensive action plan for
providing protection of life and property of
senior citizens."

40.

Section
23
provides
the
circumstances under which transfer by way
of gift or otherwise of a property made by a
senior citizen would be void. The power to
declare such transfer void at the option of
the transferor has been vested with the
Tribunal. In other words, on reading the
provisions under Chapter V, District
Magistrate has not been conferred explicit
power of directing eviction of an occupant
from the property of the senior citizen. On
the contrary, a senior citizen who desires
declaration with regard to transfer of his
property being void, has to take recourse
before the Tribunal. The jurisdiction of
Civil Court has been barred, to which any
provision of this Act 2007 applies. No
injunction shall be granted by any Civil
Court. [Section 27/Rule 26]

41. On the contrary, power has been
conferred upon the State Government to
prescribe a comprehensive action plan for
providing protection of the life and property
of the senior citizen. [Section 22 (2)]
680 INDIAN LAW REPORTS ALLAHABAD SERIES

42. Chapter V though provides for
protection of property and life being
dependent on property, amongst other
things, that sustain life, but it has been left
to the State Government either to make
Rules under Section 32 or prescribe action
plan/policy as to how and against the
persons the property of the senior citizen is
to be protected.

43. The expression 'life' is of a very
wide connotation to include within its fold
all facets, including food, health, medical
treatment, clothing, residence, including,
property and dignity which sustain life and
fulfil the needs of the senior citizen.

44. In this backdrop, the question that
arises is as to whether Tribunal or District
Magistrate while exercising powers under
Section 9/Section 22 under Chapter II/V
respectively, and Rules 2014, framed under
the Act 2007, would have powers to direct
eviction of children/relatives from the
premises in occupation of the senior
citizen,
and/or,
against
third
party
occupying the property of the senior
citizen.

45. The expression 'property' has
been defined under Sub-section (f) of
Section 2, which reads thus:

" '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"

Property
has
been defined
very
widely, District Magistrate has been
conferred power and authority to protect
the property of the senior citizen-tangible
or intangible.

46. Whereas, in Chapter II, the
expression
'property'
has
not
been
employed by the Legislature, rather, in the
expression 'maintenance', provision for
'residence' has been included to be part of
maintenance. The expression 'residence'
would also fall within the ambit of
'property'. In other words, the right to
residence of a senior citizen/parent would
fall within the ambit of 'maintenance', as
well as, 'property'.

47. The expression 'property' would
include residential property but District
Magistrate lacks power and authority to
pass order of maintenance to make
provision for residence against children of
the senior citizen or order their eviction
from such property (residence). Such
power has been conferred on the Tribunal
under Chapter II. In other words, District
Magistrate under Chapter V of Act 2007,
has been conferred power and authority to
protect the property of the senior citizen
other than the residential property being
sought
by
the
senior
citizen
for
maintenance. The protection of property of
the senior citizen under Chapter V could be
exercised
against
children/grandchildren/relative
and third party, but
certainly would not include provision for
residence sought by senior citizen for
'maintenance' to satisfy his needs and to
lead a normal and meaningful life with
dignity.

48. Before adverting further, it would
be apposite to refer to the provisions of
Rules
2014,
enacted
by
the
State
Government in exercise of powers under
Section 32 of Act 2007.

49. Sub-Clause (c) of Rule 2 defines
blood-relations which reads thus:
6 All. Shivani Verma Vs. State of U.P. & Ors.
681

" 'Blood Relations", in the context of
a male and a female inmate, means fatherdaughter, mother-son and brother-sister
other than cousins."

50. Schedule appended to these Rules
provide for various Forms, including, the
prescribed format of the application to be
moved by the aggrieved senior citizen
before the Tribunal under Section 5 of Act
2007, for order of maintenance. Rules
2014, provides for constitution of an
Appellate Tribunal and related procedures,
including, Form of appeal. The Appellate
Tribunal is to be constituted in each
District.

51. Chapter IV of the Rules 2014,
mandates for providing the scheme for
management of old age homes for indigent
senior citizens.

52. Chapter V, relevant for the
purposes of the instant writ petition,
provides for duties and power of the
District Magistrates. The relevant portion
of Rule 21 of Rules 2014, is extracted:

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

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

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

53. On bare perusal the Sub-rule (i) of
Sub-rule (2) of Rule 21, it employs the
expression 'property' which is referable to
the definition of 'property' defined under
Sub-clause (f) of Section 2 of Act 2007. In
other words, the expression 'residence', has
not been employed in the Rules 2014.
Though
'property'
would
include
residential property but would certainly not
include or mean the residence sought for
maintenance by the senior citizen. The
provision for residence could include
property owned by the senior citizen or that
of his children or relative as the case that
may be setup by the senior citizen before
the Tribunal claiming maintenance.

54. Further, Rules 2014 does not
confer on the District Magistrate explicit
power of eviction of the occupants from the
residence of the senior citizen, though, it
confers power upon the District Magistrate
to ensure that the 'life and property' of the
senior citizen is protected and they are able
to live securely with dignity.

55. The State Government vide
Government Order dated 21 March 2006,
in purported exercise of powers under Subsection (2) of Section 22 of Act 2007, has
framed policy for the senior citizen. The
relevant portion reads thus:

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ij muds Lo;a dh ns[k&Hkky djus dh leL;k] vf/kd
vk;q ,oa 'kkjhfjd vleFkZrk ds dkj.k Lo;a dh
ns[k&Hkky u dj ikus dh fLFkfr esa fdlh vU; ds
lgk;d u gksus dh leL;k] vf/kd mez ds dkj.k
lfdz;rk ,oa xfr'khyrk de gksus ls ,dkdhiu dh
leL;k bR;kfnA ofj"B ukxfjdksa dks fofHkUu lqj{kk
mik;ksa ,oa dk;Zdzeksa ds ek/;e ls 'kkafriwoZd] lqjf{kr
,oa lEekutud ढंग से जीिन-र्ापन का अिसर देने के उद्देश्र् से प्रदेश के
682 INDIAN LAW REPORTS ALLAHABAD SERIES
शहरी एिं ग्रामीर् क्षेत्र के िररष्ठ नागररकों हेतु मा. मंवत्रपररिद के आदेश अशासकीर्
पत्र संख्र्ा 4/2/3/2016-सी .एक्स . (1), वदनांक 14माचय के क्रम में उ प्र
राज्र् िररष्ठ नागररक नीवत वनम्नित बनार्ी जाती है -

1. उत्तर प्रदेश राज्र् िररष्ठ नागररक नीवत के उददेश्र् वनम्नित होंगे
•
•
izns'k ds ofj"B ukxfjdksa dh lqj{kk
dh mfpr ,oa izHkkoh O;oLFkk
lqfuf'pr djukA
•
 izns'k ds ofj"B ukxfjdksa dh
vkfFkZd lqj{kk] vkoklh; lqfo/kk]
muds lexz dY;k.k rFkk mudh
vko'k;drkvksa
dh
iwfrZ
gsrq
;Fkko';d lg;ksx dh O;oLFkk
lqfuf'pr djukA"
•
nqO;Zogkj ,oa 'kks"k.k ls mudh j{kk
dh O;oLFkk lqfuf'pr djukA""

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

"ofj"B ukxfjdksa dks thou ,oa lEifRr dk
Hk; izk;% rhu rjg ds O;fDr;ksa ;Fkk&Lo;a ds
ifjokj ls] lsokdkjksa ls rFkk vijk/khx.k ls gksrk
gSA lEifRr dh pkg esa ifjokjhx.k ls] vdsys jgus
dh n'kk esa ?kjsyw ukSdjksa ls ,oa lqulku vdsys
?kjksa es jgus ds dkj.k ?kweus okys vijkf/k;ksa ls
ofj"B ukxfjd vklkuh ls f'kdkj gks tkrs gSaA vr%
lekt ds mDr Js.kh ds yksxksa ls ofj"B ukxfjd
,oa mudh lEifRRk dh lqj{kk fd;k tkuk vko';d
gSA lM+d nq?kZVuk Hkh ofj"B ukxfjd ds fy,
?kkrd gS rFkk blls Hkh o)tuksa dh lqj{kk dh
tkuh vko';d gSA ofj"B ukxfjdksa ds thou ,oa
lEifRr dh lqj{kk gsrq dne mBk, tk,axsA"

57. Most of the senior citizens live
with their parents. They face tussle over
inheritance or division of property. Elders
come under intense pressure to sell off
their property or transfer ownership to
their sons and are subjected to various
forms of abuse if they relent. Senior
citizens face harassment and threat from
neighbours, encroachment of property,
etc.

58. In the event, property of a senior
citizen as defined under Sub-clause (f) of
Section 2 of Rules 2014, is under threat
from any person, District Magistrate has
been conferred power to protect the life and
property of the senior citizen.

59. Property can be tangible items,
viz., homes, cars or appliances or it can
refer to intangible items that carry the
promise of future worth, such as, stock and
bond certificates. Intellectual property
refers to idea such as logo, design and
patents.

60. Chapter V, in particular, Section
22, read with, Rule 21(2)(i) and the
Government action plan/policy framed by
the State Government, it mandates and
directs
the
District
Magistrate/District
Police officers to protect the property of the
senior citizen. Protection of property
without the power and authority of eviction
would render the provision meaningless.
Protection of property would certainly
include the power to order eviction of the
occupant and restoration of the property to
the senior citizen.

61. The question that follows is which
kind of property and against whom. Any
kind of property [Section 2(f)] in the
possession or threat of dispossession by the
senior citizen from the relatives, family
member, helps, service providers or anti
social/criminals. Family members would
include children of senior citizen. The
senior citizen in respect of such property
other than covered under maintenance
(residence), would have to approach the
District Magistrate for protection.

62. In other words, the expression
'property' would not include the property
claimed
by
the
senior
citizen
for
6 All. Shivani Verma Vs. State of U.P. & Ors.
683
'maintenance' before the Tribunal for
provision of residence. Accordingly, a
senior citizen seeking maintenance, other
than monetary maintenance, i.e., only
residence to the exclusion of his children
and relative of a property in his possession
or otherwise owned by him, the remedy for
such property (residence) would lie before
the Tribunal.

63. In this backdrop, it follows that
protection of 'life and property' would
confer implicit power upon the District
Magistrate to evict unauthorized occupant
of the property, including, children/relative
or third party from the property of the
senior citizen. However, Tribunal alone
would have power to order eviction from
the property of a senior citizen/parent on an
application claiming maintenance towards
residence
to
the
exclusion
of
his
children/grand-children.

64. The senior citizen while making an
application (Form A) before the Tribunal
may claim only residence as maintenance
for his need to enable him to lead a normal
and peaceful life, irrespective of the plea
that his children/relatives are subjecting the
senior citizen to harassment or not. The
plea of harassment is not a prerequisite to
maintain an application for an order of
maintenance for provision for residence. In
the event, Tribunal if satisfied on the claim
of the senior citizen, it would order
maintenance for residence, that would
necessarily include eviction of the occupant
of the residence being a consequence of the
maintenance order. [Rule 14] In other
words, Tribunal while exercising powers
on an application seeking maintenance of
residence by a senior citizen, while making
order of maintenance for provision of
residence, in consequence can direct
eviction
of
the
occupants,
i.e.,
children/relative but not against minor
children. An order of residence towards
maintenance
without
passing
the
consequential order of eviction would
render the power and authority of the
Tribunal meaningless.

65. It follows that Tribunal has power to
deal only with a particular kind of property
(residence) sought for maintenance but
lacks powers to adjudicate upon any other
kind of property of the senior citizen. Such
power is vested with the District Magistrate
under Chapter V to protect any kind of
property, movable or immovable, tangible
or intangible against any person, i.e.,
children/relative or third party, but would
not include the property sought by the
senior
citizen
for
residence
towards
maintenance from his children/relatives.
Any
other
interpretation
would
be
conferring
power
upon
the
District
Magistrate to deal and adjudicate upon
property sought by the senior citizen for
provision of maintenance, merely for the
reason that the power of eviction has to be
read
exclusively
into
the
expression
'protection' of the property of senior
citizen. Tribunal has a limited power while
adjudicating the issue of property required
only for the maintenance of the senior
citizen.

66. Tribunal can be approached by
senior citizen or parent, as the case may be,
for maintenance. Whereas, senior citizen
alone can approach the District Magistrate
for protection of his life and property of
any
kind,
other
than
the
property
(residence) involved in proceedings before
the Tribunal.

67. According to Act 2007, a senior
citizen who is mistreated by their children
has a right to evict their children/relative
684 INDIAN LAW REPORTS ALLAHABAD SERIES
from their residential house. At most,
children hold the position of a licensee. The
license expires the moment the senior
citizen tells their children to leave the
property (house). In other words, children
do not have legal claim to the residential
house owned by a senior citizen. It would
be pertinent to argue that the senior citizen
has the right to evict his children even if
they have not treated him unfairly.

68. Conclusion:

(i) Chapter II and Chapter V of the Act
2007, read with, Rules 2014, operate in
different areas and for different purpose,
inter alia, pertaining to the property of the
senior citizen.

(ii) Chapter II is confined to order of
maintenance to be passed by the Tribunal,
which includes, provision for residence
either for the senior citizen or parent
against children/relatives, but not against
minor children or third party.

(iii) The Tribunal under Chapter II of
the Act 2007, read with, Rules 2014, has
sole jurisdiction to order maintenance, inter
alia, in regard to provision of residence
against
children/relative.
The
premises/property sought for maintenance
(residence) by the senior citizen, Tribunal
alone would have jurisdiction. Tribunal
while
allowing
the
application
of
maintenance in respect of residence can
order eviction from the said residential
property against children/relatives of the
senior citizen.

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

(v) District Magistrate under Chapter
V, however, would lack jurisdiction in
respect of property, i.e., maintenance for
provision for residence, to order eviction of
children/relatives
from
such
property.
Though, District Magistrate would have
power in respect of any other kind of
property of the senior citizen, including,
order of eviction therefrom.

(vi) Daughter-in-law, being relative of
the senior citizen, can be evicted from the
residence sought by the senior citizen for
maintenance to satisfy his needs for leading
a normal life. But such an order of eviction
by the Tribunal is subject to the order
passed by the competent Magistrate/civil
court in respect of shared household under
the Protection of Women from Domestic
Violence Act 20057. The interest of the
senior citizen and the daughter-in-law
would have to be adjusted by the Tribunal
having regard to their competing needs.
Daughter-in-law cannot be evicted from the
'shared household' in possession or owned
by the senior citizen8, though, suitable
adjustment can be made by the Tribunal.

69. In view of law that has been held
hereinabove, Abhishek Tiwari (supra) and
Khushboo Shukla (supra), is overruled.
The decision rendered in any other matter
which is in contradiction to the law
enunciated hereinabove shall also stand
overruled.

70. Reverting to the facts of the case
in hand, petitioner, the daughter-in-law of
the fourth respondent, has been directed to
be evicted from the premises sought by the
fourth respondent for maintenance. The
petitioner, herein, admittedly has not taken
recourse under the Domestic Violence Act.
She claims absolute title and ownership of
the property in question and not shared
household.
6 All. Daya Shankar Vs. State of U.P. & Ors.
685

71. Tribunal, under Act 2007, can
grant such remedies of maintenance as
envisaged under Section 2(b), but that
would not result in obviating competing
remedies under other statues.

72. In the facts of the present writ
petition, petitioner claims to be the owner
of the property inherited from her husband.
It is alleged that the house was owned and
constructed by her deceased husband. The
fourth respondent in a suit being Suit No.
181 of 2021, has claimed one-fourth part of
the property being co-owner. It is alleged
that the petitioner wants to sell the entire
property to a third party. A contrary claim
has been set up by the petitioner in the suit
instituted by her.

73. In the circumstances, the second
respondent-District Magistrate, District
Etah,
committed
an
error
directing
eviction of the petitioner from the entire
property. Accordingly, petitioner could
not have been evicted from three-fourth
portion of the property, which as per the
case of the fourth respondent, before the
civil court, is that petitioner is co-owner
of the property.

74. Proceedings by a senior citizen
before the Tribunal under Act 2007, cannot
be made basis for evicting the daughter-inlaw or the occupant who has right and title
in the property which is subject matter of
maintenance.

75. The writ petition is, accordingly,
allowed.

76. The impugned order dated 06
April
2023,
passed
by
the
District
Magistrate, District Etah, is set aside and
quashed.

77. It is provided that petitioner along
with her two daughters shall continue to
reside in the property in dispute on threefourth portion and the fourth respondent
would have right and access to one-fourth
part of the property.

78. The contesting parties are restraint
from creating third party right and interest
in the property in dispute during pendency
of the civil suit.

79. After decision in the civil suit or
any order passed therein, reflecting upon
the title and ownership of the suit property,
in that event, the fourth respondent can
approach the Tribunal for obtaining a fresh
order towards provision for residence.

80. No cost.
----------
(2023) 6 ILRA 685
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.05.2023

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Writ-C No. 17072 of 2023

Daya Shankar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kirt Raj Yadav, Sri Abhinav Jaiswal

Counsel for the Respondents:
C.S.C., Sri Rameshwar Prasad Shukla

Civil Law - U.P. Revenue Code, 2006 - U.P.
Revenue
Code,
2016-Petitioner
seeks
direction to expedite the proceedings of case
u/s 116 of revenue code, 2006-for certain
proceedings-legislature has provided time bound