# Smt. Khushboo Shukla v. D.M., Lucknow & Ors

- **Citation:** (2021) 11 ILRA 196
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-02
- **Case number:** Additional Chief Judicial Magistrate in Criminal Case No.386 of 2006
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-khushboo-shukla-v-d-m-lucknow-ors-46479
- **Pages:** 7

## Headnote

A. Civil Law - U.P. Maintenance & Welfare of
Parents and Citizens Rules, 2014 - Rule 21 -
Senior Citizens Act, 2007 - Section 22 -
Protection of Women from Domestic Violence
Act, 2005 - It is a settled law that Senior Citizens
Act, 2007 and PWDV Act, 2005 are to be read
simultaneously and a wife cannot be ousted from her
matrimonial home on the basis of the summary
proceedings under the Senior Citizen Act, 2007. (Para
12)

Writ Petition Allowed. (E-10)

List of Cases cited:-

## Text

196 INDIAN LAW REPORTS ALLAHABAD SERIES
resided with his or her spouse by the first
marriage 1 or the wife by the first marriage has
taken up permanent residence after the
commission of the offence."

16. If the learned court of Additional Chief
Judicial Magistrate was not in agreement with the
protest application lodged by the complainant
against the report of Investigating Officer submitted
before the court, the just and proper action needed
on the part of the court was to read the protest
petition as complaint, so that the informant
(petitioner) could have been given opportunity to
produce evidences and witnesses in support of
complaint made to the police with regard to the theft
in his shop. As such, the order of the Additional
Chief
Judicial
Magistrate,
Sultanpur
dated
20.4.2006 having been passed without affording
opportunity to the petitioner for leading evidences in
support of his claim. The court has not properly
examined on evidences judicially whether the report
was false with regard to the theft, as lodged in the
local police station on 19.05.2005, therefore, the
order is not tenable in the eyes of law.

17. On the basis of above discussions, it is
held that the order dated 20.04.2006 of Chief
Judicial Magistrate, Sultanpur is suffering from
illegality and the Additional Session Judge/Fast
Track Court No.12, Sultanpur was also wrong in
confirming the order of the Magistrate vide his
judgment 12.09.2006.

18 Concluding the discussions, both the
impugned orders i.e., order dated 12.9.2006 passed
by the Additional Session Judge/Fast Track Court
No.12, Sultanpur and the order dated 20.4.2006
passed
by
IIIrd,
Additional
Chief
Judicial
Magistrate in Criminal Case No.386 of 2006
(Mahesh Chandra Dwivedi Vs. State of U.P.) are set
aside and writ petition is allowed.

19. The order be communicated to the court
concerned. Process issued, if any, shall remain
ineffective and unenforceable.
----------
(2021)11ILR A196
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.11.2021

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Misc. Single No. 16212 of 2021

Smt. Khushboo Shukla ...Petitioner
Versus
D.M., Lucknow & Ors. ...Respondents

Counsel for the Petitioner:
Shailendra Singh Rajawat, Devesh Deo Bhatt,
Mohd. Shahanshah Newaz Kh

Counsel for the Respondents:
C.S.C., Sunil Dixit, Umesh Chandra Dixit

A. Civil Law - U.P. Maintenance & Welfare of
Parents and Citizens Rules, 2014 - Rule 21 -
Senior Citizens Act, 2007 - Section 22 -
Protection of Women from Domestic Violence
Act, 2005 - It is a settled law that Senior Citizens
Act, 2007 and PWDV Act, 2005 are to be read
simultaneously and a wife cannot be ousted from her
matrimonial home on the basis of the summary
proceedings under the Senior Citizen Act, 2007. (Para
12)

Writ Petition Allowed. (E-10)

List of Cases cited:-

1. S. Vanitha Vs. Deputy Commissioner, Bengaluru
Urban District & ors. 2020 OnLine SC 1023 (followed)
(Delivered by Hon'ble Vivek Chaudhary, J.)

1. Present is an unfortunate litigation
between the petitioner widow and her only son
with her in-laws (private respondents).

2. The writ petition is filed challenging the
order dated 14.07.2021 passed by the Sub
11 All. Smt. Khushboo Shukla Vs. D.M., Lucknow & Ors.
197
Divisional Magistrate, Sadar, Lucknow in Case
No.75 of 2019, filed under the U.P. Maintenance
and Welfare of Parents and Senior Citizens
Rules, 2014 (hereinafter referred to as 'Senior
Citizens Rules, 2014') whereby direction for
eviction of petitioner from the House No.3/347,
Vishal Khand, Gomti Nagar, Lucknow (house at
Gomti Nagar, Lucknow) within 15 days of
receiving of the order has been issued.

3. Facts of the case are that petitioner Smt.
Khushboo Shukla and Sri Gaurav Shukla got
married on 04.02.2013. Initially, they were
living with the parents of Sri Gaurav Shukla in
House No.54/4, Veer Nagar, Udaiganj, Lucknow
(house at Udaiganj, Lucknow). However, soon
thereafter certain family disputes arose and,
therefore, petitioner and her husband started
living separately on the ground floor of the
house
at
Gomti
Nagar,
Lucknow.
On
21.07.2015, a son Shikhar Salil Shukla was born
out of the wedlock. Husband of petitioner Sri
Gaurva Shukla expired on 15.07.2019 leaving
behind his minor son, wife and his parents.
Petitioner alleges that after the death of her
husband, private respondents started harassing
her,
including
for
dowry.
In
the
said
background, she lodged several F.I.Rs. She also
filed a Complaint Case No.1136 of 2019;
'Khushboo Shukla & another Vs. Kavita Shukla
& others' on 06.11.2019 before the Court of
Special
Chief
Judicial
Magistrate
(A.P.),
Lucknow, under Section 12 and 13 of the
Protection of Women from Domestic Violence
Act, 2005 (PWDV Act, 2005). By the said
complaint case, she sought maintenance for
herself and her son and also prayed for
restraining
the
private
respondents
from
dispossessing the petitioner and her son from the
house at Gomti Nagar, Lucknow, wherein she
was residing since before the death of her
husband. Meanwhile, private respondents also
filed a Case No.75 of 2019 on 25.10.2019 under
Rule 21 and 22 of the Senior Citizens Rules,
2014. By the said case, the private respondents
asked for possession of house at Gomti Nagar,
Lucknow by evicting the petitioner from the
same. By order dated 17.02.2020, Special
Additional Chief Judicial Magistrate (A.P.),
Lucknow in Complaint Case No.1136 of 2019
filed by petitioner granted maintenance of
Rs.3000/- per month to petitioner and Rs. 2000/-
per month to her son and further restricted the
private respondents from evicting the petitioner
from the house at Gomti Nagar, Lucknow. The
private respondents have not challenged the said
order. Soon thereafter, the Sub-Divisional
Magistrate, Sadar, Lucknow in Case No. 75 of
2019 filed by private respondents passed the
impugned order dated 14.07.2021 directing
eviction of the petitioner from the house at
Gomti Nagar, Lucknow within 15 days of
receiving the award. Thus, the present writ
petition is filed challenging the order dated
14.07.2021.

4. Learned counsel for petitioner submits
that though initially petitioner was granted an
interim protection by this Court but the same
could not be extended and her belongings were
thrown on the road and she was forcefully
evicted from the house at Gomti Nagar,
Lucknow on 08.09.2021.

5. This court passed an order on
17.09.2021 and tried for an amicable solution
between the parties as both counsels for the
parties agreed for mediation. However, the
parties could not come up with a settlement
suitable for both the parties.

6. I have heard Sri S.S. Rajawat, learned
counsel for the petitioner and Sri Sunil Dixit,
learned counsel for opposite parties no. 3 and 4
and learned Standing Counsel has appeared on
behalf of opposite parties no. 1 and 2.

7. Learned counsel for private respondents,
raised a preliminary objection as to the
maintainability of the writ petition under Article
198 INDIAN LAW REPORTS ALLAHABAD SERIES
226 of the Constitution of India on the ground
that the order impugned in this writ petition is
appealable under Section 16 of the Maintenance
and Welfare of Parents and Senior Citizens Act,
2007.

8. Learned counsel for petitioner opposed
the submission of learned counsel for private
respondents and submits that there is no remedy
of appeal available to the petitioner against the
impugned order under the Senior Citizens, Act,
2007.

9. The Senior Citizens Act, 2007 is divided
in the separate chapters. Chapter-II runs from
Section 2 to 18. Chapter-II of the Senior
Citizens, Act, 2007 provides for ''Maintenance
of Parents and Senior Citizens''. Under Section 4
it provides that senior citizens including parents
who are unable to maintain themselves from
their own earning or property shall be entitled to
make application under Section 5 before the
Tribunal. Section 6 provides for jurisdiction and
procedure of the Tribunal. Section 7 provides for
constitution of Maintenance Tribunal. Section 8
provides for summary procedure of inquiry to be
conducted by the Tribunal. Section 9 provides
for order for maintenance in the given cases.
Section 10 provides for alteration of order of
maintenance and further directions. Section 15
and 16 provide for constitution of Appellate
Tribunal and appeals. Section 17 and 18
prescribe with regard to legal representation and
maintenance officer. Thus, Chapter-II is a
complete code in itself with regard to claim of
maintenance by senior citizens and its disposal
by the Tribunal, appeal against such an order
before the Appellate Tribunal and execution of
the same. Therefore, Section 16 relates to appeal
against the order passed by the Maintenance
Tribunal and no further. Chapter-V of the Senior
Citizens, Act, 2007 provides for "Protection of
Life and Property of Senior Citizen". Section 22
of the same reads as:-

"Section 22-Authorities who may be
specified for implementing the provisions of this
Act:- (1) The State Government may, confer
such powers and impose such duties on a
District Magistrate as may be necessary, to
ensure that the provisions of this Act are
properly carried out and the District Magistrate
may specify the officer, subordinate to him, who
shall exercise all or any of the powers, and
perform all or any of the duties, so conferred or
imposed and the local limits within which such
powers or duties shall be carried out by the
officer as may be prescribed.

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

Under the said Section, the State
Government may confer power and impose
duties upon the District Magistrate as may be
necessary for implementing the provisions of the
Senior Citizens, Act, 2007. In exercise of the
said power under Rule 21 of the Senior Citizens,
Rules, 2014, the duties and powers of District
Magistrate is prescribed as follows:-

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

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

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

(ii) oversee and monitor the work of
Maintenance Tribunals Maintenance Officers of
the district with a view to ensuring timely and
fair disposal of applications for maintenance,
and execution Tribunals' orders;

(iii) oversee and monitor the working
of old age homes in the district so as to ensure
that they conform to the standards laid down in
11 All. Smt. Khushboo Shukla Vs. D.M., Lucknow & Ors.
199
these rules and any other guidelines and orders
of the Government;

(iv) ensure regular and wide publicity
of the provisions of the Act, Central and State
Governments, programmes for the welfare of
senior citizens;

(v) encourage and co-ordinate with
panchayats,
municipalities,
Nehru
Yuva
Kendras, educational institutions and especially
their
National
Service
Scheme
Units,
Organisations, specialists, experts activists, etc.
working in the district so that their resources
efforts are effectively pooled for the welfare
district; senior citizens of the district;

(vi)
ensure
provision
of
timely
assistance and relief to senior citizens in the
event
of
natural
calamities
and
other
emergencies:

vii) ensure periodic sensitisation of
officers of various Departments and Local
Bodies concerned with welfare of senior citizens,
towards the needs of such citizens, and the duty
of the officers towards the latter,

(viii)
review
the
progress
of
investigation and trial of cases relating to senior
citizens in the district, except in cities having a
Divisional Inspector General of Police.

(ix) ensure that adequate number of
prescribed application forms for maintenance
are available in officers of common contact for
citizens like Panchayats, Block Development
Offices, Tahsildar Offices, District Social
Welfare Offices, Collectorate, Police Station
etc.;

(x) promote establishment of dedicated
helplines
for
senior
citizens
at
district
headquarters, to begin with; and

(xi) perform such other functions as
the Government, may by order, assign to the
District Magistrate in this behalf, from time to
time.

(3) With a view to performing the
duties mentioned in sub-rule (2), the District
Magistrate shall be competent to issue such
directions, not inconsistent with the Act; these
rules, and general guidelines of the Government,
as may be necessary, to any concerned
Government or statutory agency or body
working in the district, and especially to the
following:

(a) Officers of the State Government in
the Police, Health and Publicity Departments,
and the Department dealing with welfare of
senior citizens;

(b)
Maintenance
Tribunals
and
Conciliation Officers;

(c) Panchayats and Municipalities;
and

(d) Educational Institution."

Under Rule 21(2)(i), the District
Magistrate is to ensure that life and property of
senior citizens are protected and they are able to
live with security and dignity. In exercise of the
said powers, the proceedings are held by the Sub
Divisional Magistrate, Sadar, Lucknow and
impugned order of eviction is passed. There is
no appeal provided against an order passed
under Rule 22 of the Senior Citizens, Rules,
2014 and the rules are silent in this regard. The
power of appeal provided under Section 16 of
the Senior Citizens Act, 2007 with regard to
Appellate Tribunal constituted under Section 15
is only relating to any order passed under
Chapter-II which relates to maintenance of
senior
citizens
and
parents.
Neither
the
Maintenance Tribunal constituted under Section
7 has any power to direct eviction nor such
power is vested in the Appellate Tribunal. They
both can only pass order with regard to
maintenance of senior citizens and parents. The
power of eviction is exercised under Rule 21
which is framed for giving effect to powers
under Section 22 of the Senior Citizens Act,
2007 which falls under Chapter-V of the Act.
There is no provision of appeal against any of
these orders either under Chapter-V of the
Senior Citizens Act, 2007 or under the Senior
Citizens Rules, 2014. Therefore, submission of
counsel for private respondents that appeal
would lie before the Appellate Tribunal
200 INDIAN LAW REPORTS ALLAHABAD SERIES
constituted under Section 15 read with Section
16 of the Senior Citizens Act, 2007 before the
Appellate Tribunal constituted for the purposes
of maintenance is incorrect and is rejected.

10. Coming to the merits of the case,
learned counsel for petitioner submits that the
impugned order is illegal and directly in teeth of
the apex court judgement reported in 2020 SCC
OnLine SC 1023 (S. Vanitha vs. Deputy
Commissioner, Bengaluru Urban District and
Other) which is opposed by the private
respondents.

11. In the present case, the impugned order
is passed by the Sub-Divisional Magistrate,
Sadar, Lucknow ignoring the law settled by the
apex Court in case of S. Vanitha (supra).
Paragraph-38 and 39 of the said judgment
reads:-

"38. The above extract indicates that a
significant object of the legislation is to provide
for and recognize the rights of women to secure
housing and to recognize the right of a woman
to reside in a matrimonial home or a shared
household, whether or not she has any title or
right in the shared household. Allowing the
Senior Citizens Act 2007 to have an overriding
force and effect in all situations, irrespective of
competing entitlements of a woman to a right in
a shared household within the meaning of the
PWDV Act 2005, would defeat the object and
purpose which the Parliament sought to achieve
in enacting the latter legislation. The law
protecting the interest of senior citizens is
intended to ensure that they are not left destitute,
or at the mercy of their children or relatives.
Equally, the purpose of the PWDV Act 2005
cannot be ignored by a sleight of statutory
interpretation. Both sets of legislations have to
be harmoniously construed. Hence the right of a
woman to secure a residence order in respect of
a shared household cannot be defeated by the
simple expedient of securing an order of eviction
by adopting the summary procedure under the
Senior Citizens Act 2007.

39. This Court is cognizant that the
Senior Citizens Act 2007 was promulgated with
a view to provide a speedy and inexpensive
remedy
to
senior
citizens.
Accordingly,
Tribunals were constituted under Section 7.
These Tribunals have the power to conduct
summary procedures for inquiry, with all
powers of the Civil Courts, under Section 8. The
jurisdiction of the Civil Courts has been
explicitly barred under Section 27 of the Senior
Citizens Act 2007. However, the over-riding
effect for remedies sought by the applicants
under the Senior Citizens Act 2007 under
Section 3, cannot be interpreted to preclude all
other competing remedies and protections that
are sought to be conferred by the PWDV Act
2005. The PWDV Act 2005 is also in the nature
of a special legislation, that is enacted with the
purpose of correcting gender discrimination that
pans out in the form of social and economic
inequities in a largely patriarchal society. In
deference to the dominant purpose of both the
legislations, it would be appropriate for a
Tribunal under the Senior Citizens Act, 2007 to
grant such remedies of maintenance, as
envisaged under S.2(b) of the Senior Citizens
Act 2007 that do not result in obviating
competing remedies under other special statutes,
such as the PWDV Act 2005. Section 26 of the
PWDV Act empowers certain reliefs, including
relief for a residence order, to be obtained from
any civil court in any legal proceedings.
Therefore, in the event that a composite dispute
is alleged, such as in the present case where the
suit premises are a site of contestation between
two groups protected by the law, it would be
appropriate for the Tribunal constituted under
the Senior Citizens Act 2007 to appropriately
mould reliefs, after noticing the competing
claims of the parties claiming under the PWDV
Act 2005 and Senior Citizens Act 2007. Section
3 of the Senior Citizens Act, 2007 cannot be
11 All. Smt. Khushboo Shukla Vs. D.M., Lucknow & Ors.
201
deployed
to
over-ride
and
nullify
other
protections in law, particularly that of a
woman's right to a 'shared household' under
Section 17 of the PWDV Act 2005. In the event
that the ?aggrieved woman? obtains a relief
from a Tribunal constituted under the Senior
Citizens Act 2007, she shall duty-bound to
inform the Magistrate under the PWDV Act
2005, as per Sub-section (3) of Section 26 of the
PWDV Act 2005. This course of action would
ensure that the common intent of the Senior
Citizens Act 2007 and the PWDV Act 2005 of
ensuring speedy relief to its protected groups
who are both vulnerable members of the society,
is effectively realized. Rights in law can
translate to rights in life, only if there is an
equitable ease in obtaining their realization."

12. From the aforesaid judgment of the
Supreme Court, it stands settled that both the
Acts i.e. Senior Citizens, Act, 2007 and PWDV
Act, 2005 are to be read simultaneously and a
wife cannot be ousted from her matrimonial
home on the basis of the summary proceedings
under the Senior Citizens Act, 2007. In the
present case, the Sub-Divisional Magistrate,
Sadar, Lucknow has passed the order in
violation of the law settled by the Supreme
Court by directing eviction of the petitioner
under the provisions of Senior Citizens Act,
2007.

13.

Learned
counsel
for
private
respondents further submits that even otherwise,
there is no illegality in the impugned order the
same should not be set aside. He submits that the
impugned order is passed for protection of life
and property of senior citizens i.e. private
respondents.
Learned
counsel
for
private
respondents submits that the Court should not go
into the technicality and should see that property
of the private respondents i.e. senior citizens
need protection as petitioner is causing damage
to the same. He submits that though initially
petitioner was living on the ground floor of the
house at Gomti Nagar, Lucknow but now has
also planted tenants on the floors above the
ground floor and is also interfering in the
possession of the private respondents. He further
submits that private respondents have no
objection in case petitioner with her son come
and live with them in the house at Udaiganj,
Lucknow.

14. Learned counsel for petitioner strongly
denied the statements of learned counsel for
private respondents. He submits that petitioner
was living only on the ground floor of the house
at Gomti Nagar, Lucknow and has no concern of
any kind with any of the floors above the ground
floor. It is false to suggest that petitioner has put
any tenant on such floors or petitioner is causing
any hindrance in movement of any person from
the floors above. It is also stated that floors
above the ground floor have separate entry and
exist and has no concern with the ground floor
where petitioner was living.

15. This Court does not find any force in
the submissions of the private respondents.
Conflicting submissions without any supportive
cogent evidence are being made with regard to
the tenants on the floors above. On one hand it is
stated that tenants are planted by the petitioner
and on the other hand it is claimed that petitioner
is disturbing their movements. A categorical
statement is given by the petitioner that she is
neither interfering in lives or movements of the
persons living above the ground floor nor any of
them is a tenant of the petitioner or planted by
her. There is nothing specifically stated by the
private respondents as to how the petitioner is
damaging the property. There is no finding
given in the impugned order that petitioner has
occupied any of the floors other than the ground
floor in an illegal manner or that she has
obstructed the movements of any person of
floors above the ground floor. There is no
finding that petitioner has caused any damage to
the property in any manner whatsoever. In
202 INDIAN LAW REPORTS ALLAHABAD SERIES
absence of any such finding, the impugned order
could not have been passed. Further, admittedly,
the private respondents are having number of
properties. They are living in their own house at
Udaiganj, Lucknow. Petitioner with her son was
living on the ground floor of the multi-story
house at Gomti Nagar, Lucknow. Petitioner and
her son have no concern with any of the floors
above the ground floor of the said house from
which they have been evicted in furtherance of
the impugned order. I do not find any
circumstance under which it can be stated that
they were causing any damage or interfering in
any manner with the lives of the private
respondents. On the contrary, by their ousting
they have been left roofless and to put great
inconvenience.

16. In the given facts and circumstances of
the case, the impugned order dated 14.07.2021
cannot stand and is aside. Respondents are
directed to hand over the possession of the
ground floor of the House No.3/347, Vishal
Khand, Gomti Nagar, Lucknow to the petitioner
and her son forthwith. Petitioner shall not in any
manner interfere with the ingress and egress of
the occupants of the floors above the ground
floor. Private respondents also shall not disturb
or interfere in any manner with the living of the
petitioner and her son in the said property.

17. With the aforesaid, present writ
petition stands allowed.
----------
(2021)11ILR A202
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.10.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Misc. Bench No. 23080 of 2021

Ram Parvesh Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Kaushtubh
Singh,
Illegible,
Kamal
Kishore
Sharma

Counsel for the Respondents:
G.A.

A. Criminal Law -Code of Criminal Procedure,
1973 -Section 154 - The Constitution of India,
1950 - Article 19, 21 - Successive FIRs - Test of
Sameness or test of consequence - Subsequent
FIRs for different offences committed in the
course of same transaction or offences arising
as a consequence of prior offence is not
permissible but the second complaint in regard
to the same incident filed as a counter
complaint as also the second FIR for the same
nature
of
offence
against
same
accused
persons
lodged
by
different
persons
or
containing
the
different
allegation
is
permissible. (Para 19)

Where two incidents took place at different point of time
or involve different person or there is commonality and
the purpose thereof is different and the circumstances
are also different then there can be more than one FIR.
The Court is required to see the circumstances of a given
case indicating proximity of time, unity or proximity of
case, continuity of action, commonality of purpose of the
crime to ascertain if more than one FIR can be allowed
to stand or not. (Para 9)

The Court held that filing of multiple FIRs causes
intervention into petitioner's right as a citizen to fair
treatment under Article 14 and freedom to conduct
independent portrayal of views under Article 19(1)(a)
of the Constitution of India, but that is not so in the
present case because in this case involvement of
different category of person(s) holding the post in
U.P. Co-operative Bank in respect of irregularity in
recruitment of different posts has given separate
cause of action. (Para 18)

Writ Petition Rejected. (E-10)
List of Cases cited:-

1. Arnab Ranjan Goswami Vs U.O.I. & ors. (2020) 14
SCC 51 (distinguished)