# Smt. Roopam @ Jyoti Sharma & Anr v. District Magistrate Lucknow & Ors

- **Citation:** (2022) 5 ILRA 405
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-18
- **Case number:** Writ C No. 21188 of 2021
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-roopam-jyoti-sharma-anr-v-district-magistrate-lucknow-ors-48538
- **Pages:** 12

## Headnote

(A) Civil Law - The U.P. Maintenance and
Welfare of Parents and Senior Citizens
Act, 2007 - Section 5 - application for
maintenance , Section 16 - appeal, Indian
Penal Code, 1860 - Sections 498-A/
323/504/506
,
Dowry
prohibition
Act,1961 - Section 3⁄4.
406 INDIAN LAW REPORTS ALLAHABAD SERIES
(B) Interpretation of statute - rule of
casus omissus - if there is a clear
necessity of any provision - that has been
omitted, then that is out of purview of the
doctrine
of
casus
omissus
-
non
mentioning of the words in Section 16(1)
is not a casus omissus, but it seems an
accidental omission - rule of purposive
interpretation - law is such a thing which
has
to
be
applied
as
a
pragmatic
instrument for social order - interpretative
effort must be inherent with the statutory
purpose - judge can iron the fabrics but
cannot change the texture of statute.
(Para - 36,37,38,39)

(C) Interpretation of statute - The U.P.
Maintenance and Welfare of Parents and
Senior Citizens Act, 2007 - Section 5(2)(8)
- enlarges certain obligations/liabilities
over the children, relative or any other
person and, as such, on the other word,
they can be said to be a person aggrieved
- no such intent of the legislature so as to
exclude the right of appeal to such
persons upon whom the liability has been
fastened - If Section 5(2) as well as
Section 5(8) and Section 16(1) are read
with each other - right of filing an appeal
always remain available to the person
other than senior citizen and parents also.
(Para - 35)

FIR lodged by petitioner against respondent
and other family members - demand of
dowry - compromise between petitioner
no.1 and opposite party no.3 - violation of
terms and conditions of compromise deed -
respondent no. 3 submitted an application
under section 5 before SDM - evicting
petitioners from House - appeal filed
before DM under section 16 - order of
eviction was passed - order passed in an
arbitrary and erroneous manner on ground
of maintainability - petitioners had no right
to file an appeal under Section 16 of the Act,
2007 - accidental omission while enactment
of the statute namely Act, 2007 - under
Section 16(1), the right to appeal has only
been given to the parents and the senior
citizens not to the children, relative or other
person. (Para -2 to 10, 36 )

HELD:-Section 16(1) of the said Act is valid,
but must be read to provide for the right of
appeal to any of the affected parties. Right to
appeal to other parties has accidentally been
omitted. Order passed by respondent no.1 is
set aside. Liberty granted to the petitioners to
file an appeal before the Appellate Court
under
Section
16
of
the
Act,
2007
afresh.(Para - 19,40,43)

Writ Petition partly allowed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,967 of 40,096. This is a partial read: ask again with offset=39967 for what follows._

5 All. Smt. Roopam @ Jyoti Sharma & Anr. Vs. District Magistrate Lucknow & Ors.
405
services of the petitioner. In the instant
case, the petitioner abandoned his service
on his own in 1985 and thereafter, never
returned or approached the authorities to
resume duty.

15. The act of abandonment of
service was voluntary on the part of the
petitioner.
The
respondents
had
not
terminated the service of the petitioner
under the Rules, for his prolonged absence,
rather, the petitioner ceased to be in service
on his own choice in terms of Fundamental
Rule 18 and not due to any punitive action
by the employer."

28. The material before the employer
was credible and the conclusions of the
employer were reasonable. The employer
adopted a just and lawful procedure before
ending the employer employee relationship
on grounds of abandonment of service by
the latter. The labour court neglected to
consider the adherence of the employer to
Standing
Order
No.21,
which
was
applicable to the facts of this case. There
was no requirement of a regular domestic
enquiry. Non application of mind by the
labour court on these critical aspects vitiate
the impugned order. Findings of the labour
court on relevant facts are perverse as seen
earlier.

29. The employee long absent and not
interested in rejoining his duties. Indefinite
continuance of such an employee on the
rolls of the establishment will only instigate
industrial unrest and not foster industrial
peace.

30. In the wake of preceding
discussion the findings of the labour court
in the impugned award are perverse and
illegal.

31. The award dated 16.01.2019 is
liable to be set aside and is set aside.

32. Before parting one fact needs to
be recorded. The petitioner employer to
show his fairness had made an offer to the
workman to join on an equivalent post at its
unit in Devas. The post which the
respondent workman was working before
he abandoned is not vacant. Learned
counsel for the workman Shri Alok Kumar
Srivastava, on the basis of instructions
submits that the workman has declined the
aforesaid offer.

33. The writ petition is allowed.
----------
(2022)05ILR A405
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.05.2022

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Writ C No. 21188 of 2021

Smt. Roopam @ Jyoti Sharma & Anr.
 ...Petitioners
Versus
District Magistrate Lucknow & Ors.
 ...Respondents

Counsel for the Petitioners:
Vineet Kumar Chaurasia, Suresh Kumar

Counsel for the Respondents:
C.S.C.

(A) Civil Law - The U.P. Maintenance and
Welfare of Parents and Senior Citizens
Act, 2007 - Section 5 - application for
maintenance , Section 16 - appeal, Indian
Penal Code, 1860 - Sections 498-A/
323/504/506
,
Dowry
prohibition
Act,1961 - Section 3⁄4.
406 INDIAN LAW REPORTS ALLAHABAD SERIES
(B) Interpretation of statute - rule of
casus omissus - if there is a clear
necessity of any provision - that has been
omitted, then that is out of purview of the
doctrine
of
casus
omissus
-
non
mentioning of the words in Section 16(1)
is not a casus omissus, but it seems an
accidental omission - rule of purposive
interpretation - law is such a thing which
has
to
be
applied
as
a
pragmatic
instrument for social order - interpretative
effort must be inherent with the statutory
purpose - judge can iron the fabrics but
cannot change the texture of statute.
(Para - 36,37,38,39)

(C) Interpretation of statute - The U.P.
Maintenance and Welfare of Parents and
Senior Citizens Act, 2007 - Section 5(2)(8)
- enlarges certain obligations/liabilities
over the children, relative or any other
person and, as such, on the other word,
they can be said to be a person aggrieved
- no such intent of the legislature so as to
exclude the right of appeal to such
persons upon whom the liability has been
fastened - If Section 5(2) as well as
Section 5(8) and Section 16(1) are read
with each other - right of filing an appeal
always remain available to the person
other than senior citizen and parents also.
(Para - 35)

FIR lodged by petitioner against respondent
and other family members - demand of
dowry - compromise between petitioner
no.1 and opposite party no.3 - violation of
terms and conditions of compromise deed -
respondent no. 3 submitted an application
under section 5 before SDM - evicting
petitioners from House - appeal filed
before DM under section 16 - order of
eviction was passed - order passed in an
arbitrary and erroneous manner on ground
of maintainability - petitioners had no right
to file an appeal under Section 16 of the Act,
2007 - accidental omission while enactment
of the statute namely Act, 2007 - under
Section 16(1), the right to appeal has only
been given to the parents and the senior
citizens not to the children, relative or other
person. (Para -2 to 10, 36 )

HELD:-Section 16(1) of the said Act is valid,
but must be read to provide for the right of
appeal to any of the affected parties. Right to
appeal to other parties has accidentally been
omitted. Order passed by respondent no.1 is
set aside. Liberty granted to the petitioners to
file an appeal before the Appellate Court
under
Section
16
of
the
Act,
2007
afresh.(Para - 19,40,43)

Writ Petition partly allowed. (E-7)

List of Cases cited:-

1. Akhilesh Kumar & anr. Vs St. of U.P. & ors..,
2019 (8) ADJ 731 (D.B.)

2. Balamurugan Vs Rukmani (C.R.P.(PD)(MD)
No. 437 of 2015 & M.P.(MD)

3. Paramjeet Kumar Saroya Vs U.O.I. & anr.,
AIR 2014 Punjab & Haryana 121

4. Carew & Co. Ltd. Vs U.O.I., (SCC 1.802, para
21)

5. Gujarat Urja Vikas Nigam Ltd. Vs Essar Power
Ltd., (2008) 4 SCC 755

6. Surjeet Singh Kalra Vs U.O.I. & anr., 1991 (2)
SCC 87

7. Hameedia Hardware Stores Vs B. Mohan Lal
Sowcar, (1988) 2 SCC 513

8. Gurudevdatta Vksss Maryadit & ors.. Vs St.
of Mah. & ors.. , Appeal (Civil) No. 2298 of
2001

9. Nasiruddin & ors.. Vs Sita Ram Agarwal,
Appeal (Civil) No. 5077 of 1998

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1.

Heard
Sri
Vineet
Kumar
Chaurasiya,
learned
counsel
for
the
petitioners, Sri Shailendra Kumar Singh,
learned Chief Standing Counsel-III assisted
by Sri Kuldeep Singh and Sri Y.K. Awasthi,
5 All. Smt. Roopam @ Jyoti Sharma & Anr. Vs. District Magistrate Lucknow & Ors.
407
learned Standing Counsel for the State and
perused the record.

2. By means of the instant writ petition,
the petitioners have assailed the judgment
and order dated 24.02.2020 passed by
Chairman,
Appellate
Authority/District
Magistrate, Lucknow in Appeal No.20231 of
2019, under Section 16 of the U.P.
Maintenance and Welfare of Parents and
Senior Citizens Act, 2007 (hereinafter
referred to as the "Act, 2007") (Re: Indrajeet
Sharma Vs. Uma Shankar Sharma), by means
of which, the appeal filed by the petitioners
have been dismissed by respondent no.1 on
the ground of maintainability. He has further
assailed the judgment and order dated 6th
June, 2019 passed by the Sub-Divisional
Magistrate, Tehsil-Sadar, District-Lucknow in
Case Crime No.38 of 2018, under Section 5
of U.P. Maintenance and Welfare of Parents
and Senior Citizens Act, 2007, whereby the
petitioners were directed to evict the premises
of Plot No.46, Seemant Nagar, Yashbagh
Tum, Kalyanpur, Lucknow.

3. Learned counsel appearing for the
petitioners submits that factual matrix of the
case is that, the petitioner no.1 was being
continuously harassed by the respondent no.3
even for food and lodging, and FIR bearing
Case Crime No.0124 of 2016, under Sections
498-A/ 323/504/506 IPC and 3/4 of D.P. Act
was lodged by petitioner no.1 against the
respondent Nos.3 and 6 and other family
members. Since the petitioner no.1 was being
tortured for demand of dowry and, as such,
under the compelling circumstances, the
aforesaid FIR was lodged against the
respondent no.1, who is the father-in-law of
the petitioner no.1.

4. After the aforesaid FIR, a
compromise
was
done
between
the
petitioner no.1 and opposite party no.3 on
08.11.2016 and it was settled in the
compromise that opposite party no.3 along
with his family will reside in the house
No.82, Sector-N, Aliganj and the petitioner
was given a ground floor portion situated at
Plot No.46, Seemant Nagar, Yashbagh
Tum, Kalyanpur, Lucknow, which is about
600 square ft.

5. Since a compromise was entered in
between the petitioner no.1 and respondent
no.3, as such, the Investigating Officer,
who was investigating the matter in Case
Crime No.0124 of 2016, submitted a final
report on 12.11.2016 before the Additional
Chief Judicial Magistrate, Court No.11,
Lucknow and, later on, it was accepted vide
order dated 17th September, 2017.

6. Learned counsel appearing for the
petitioners further added that respondent
no.3 is a retired Constable from the Police
Department and is getting regular pension
and has also got other post retiral dues, but
despite the above, the opposite party no.3
had intentionally started to torture and
harass the petitioners, while violating the
terms and conditions mentioned in the
compromise deed dated 08.11.2016. The
respondent no.3 submitted an application
under Section 5 of the Act, 2007 before the
Sub-Divisional Magistrate, Tehsil-Sadar for
evicting the petitioners from the House
No.46 situated at Seemant Nagar, Yashbagh
Tum, Lucknow and he did not bother that
petitioners are his son and daughter-in-law
and even the legal successors of his
property, and they have no any other house
or place for living.

7. After the aforesaid application
instituted before the Opposite Party No.2,
the
notices
were
issued
for
calling
explanation/written statement in the case
pending before respondent no.2 and it has
408 INDIAN LAW REPORTS ALLAHABAD SERIES
also been mentioned that prior to the
notice, several other notices were issued,
though petitioners submitted that the same
were not served upon them.

8. Petitioner no.1 had also submitted an
application before the District Magistrate,
Lucknow on 22nd May, 2019, wherein, it
was prayed that case pending before the SubDivisional Magistrate may be transferred
before any other competent authority, but it
was neither heard nor any action has been
taken. He further submits that without
hearing the side of the petitioners, the SubDivisional Magistrate passed the order in
Case No.38 of 2018 (Uma Shanker Sharma
Vs. Indrajeet Sharma and others) on 6th June,
2019, wherein, they were directed to evict the
house of the petitioner no.2, having its No.46
at
Seemant
Nagar,
Yashbagh
Tum,
Kalyanpur, Lucknow.

9. After the aforesaid order passed by
the Sub-Divisional Magistrate under Section
5 of the Act, 2007, the petitioners approached
the District Magistrate, Lucknow while
instituting a Case No.20231 of 2019
(Indrajeet Sharma Vs. Uma Shanker Sharma)
under Section 16 of the Act, 2007. The
aforesaid appeal was filed against the order
dated 6th June, 2019 passed by the SubDivisional Magistrate and order of eviction
was passed thereof.

10. Learned District Magistrate, who is
the Appellate Authority as per Section 16 of
the Act, 2007, has passed the order in an
arbitrary and erroneous manner on 24th
February,
2020
on
the
ground
of
maintainability. As per his verdict, the
petitioners had no right to file an appeal
under Section 16 of the Act, 2007.

11. Being aggrieved with the order
aforesaid, petitioners filed a writ petition
bearing No.19104 of 2021 (Misc. Single);
Rupam Sharma @ Jyoti Sharma and
another Vs. District Magistrate, Lucknow,
before this Court and the same was
dismissed on 2nd September, 2021 on the
ground of maintainability. He submits that,
in fact, the aforesaid writ was filed in
hurriedly manner and the order dated
24.02.2020
passed
by
the Appellate
Authority i.e. District Magistrate was not
appended/challenged in the aforesaid writ
petition and, as such, the Hon'ble Court,
while passing the order on 2nd September,
2021, dismissed the writ petition and
accorded liberty to the petitioners to file a
fresh petition.

12. Learned counsel appearing for the
petitioners has argued that, in fact, the
compromise was entered in between the
petitioner no.1 and respondent no.3 on
08.11.2016 and in pursuance of the same,
petitioners were residing on the ground
floor of Plot No.46 at Seemant Nagar,
Yashbagh
Tum,
Kalyanpur,
Lucknow.
Further, since a final report was submitted
by the Investigating Officer only on the
premise of a compromise entered in
between the petitioner No.1 and the
respondent no.3 and as soon as the final
report was submitted, the respondent no.3
has again started harassing and torturing
the petitioners for no reasons.

13.

Learned
counsel
for
the
petitioners further argued that since the
petitioners
themselves
is
getting
the
pension regularly and has also got the
service benefits and as such, they are able
to maintain themselves and, thus, the
aforesaid proceedings before the SubDivisional Magistrate and the Appellate
Authority/District Magistrate is nothing,
but an eyewash. He further added that, in
fact, the conduct and behaviour of the
5 All. Smt. Roopam @ Jyoti Sharma & Anr. Vs. District Magistrate Lucknow & Ors.
409
respondent no.3 is unbridlled and unguided
and he is without any reason torturing the
petitioners by way of instituting the
aforesaid proceedings.

14.
Learned
counsel
for
the
petitioners has also added that due to
aforesaid action of the respondent no.3,
petitioners are compelled to live in the
little parental house, and respondent no.3
has become merciless as the petitioner
no.1 was pregnant and also in the hightime
of
Covid-19
Pandemic,
the
petitioners
were
forcefully
evicted/thrown out from their house. He
also added that order dated 6th June,
2019 has been passed without paying
heed on the contention of the petitioners
and further the same is also in violation
of the intent of the Section 5 of the Act,
2007. The orders dated 6th June, 2019
and 24th February, 2020 are highly
illegal, unconstitutional and arbitrary.
The orders are without reason and are
against the intent of the legislature. He
submits that if this Hon'ble Court will not
quash the orders passed by the respondent
Nos.1 and 2, they shall suffer irreparable
loss and injury, which could not be
compensated by any means.

15. Finally, learned counsel for the
petitioners has also drawn attention that the
order dated 24th February, 2020 has been
passed against the settled proposition of
law as plea of the petitioners has been
rejected on the ground that right to appeal
against any order passed on the Application
Under Section 5 of the Act, 2007 is
available to the Senior Citizens and the
Parents only which is overt and evident
from the bare perusal of Section 16 of the
Act, 2007. The provision of Section 16 of
the Act, 2007 is being extracted as
follows:-

Section 16 (Appeals).

"(1) Any senior citizen or a
parent, as the case may be, aggrieved by an
order of a Tribunal may, within sixty days
from the date of the order, prefer an appeal
to the Appellate Tribunal:

Provided that on appeal, the
children or relative who is required to pay
any amount in terms of such maintenance
order shall continue to pay to such parent
the amount so ordered, in the manner
directed by the Appellate Tribunal:

Provided
further
that
the
Appellate Tribunal may, entertain the
appeal after the expiry of the said period of
sixty days, if it is satisfied that the appellant
was prevented by sufficient cause from
preferring the appeal in time.

(2) On receipt of an appeal, the
Appellate Tribunal shall, cause a notice to
be served upon the respondent.

(3) The Appellate Tribunal may
call for the record of proceedings from the
Tribunal against whose order the appeal is
preferred.

(4) The Appellate Tribunal may,
after examining the appeal and the records
called for either allow or reject the appeal.

(5) The Appellate Tribunal shall,
adjudicate and decide upon the appeal filed
against the order of the Tribunal and the
order of the Appellate Tribunal shall be
final:

Provided that no appeal shall be
rejected unless an opportunity has been
given to both the parties of being heard in
person or through a duly authorised
representative.

(6) The Appellate Tribunal shall
make an endeavour to pronounce its order
in writing within one month of the receipt
of an appeal.

(7) A copy of every order made
under sub-section (5) shall be sent to both
the parties free of cost."
410 INDIAN LAW REPORTS ALLAHABAD SERIES

16.

While
corroborating
his
arguments, he has placed reliance on the
case reported in 2019 (8) ADJ 731 (D.B.)
(Akhilesh Kumar and another Vs. State of
U.P. and others) and has referred para 7 of
the aforesaid judgment, which is extracted
as under:-

7. However, learned standing
counsel has referred to a decision in
Paramjit Kumar Saroya : Amanpreet v.
Union of India, (2014 AIR (P&H) 121
wherein the Division Bench of the Punjab
and Haryana High Court has held that a
purposive interpretation should be given to
Section 16(1) of the Act, 2007 and the only
interpretation is that the right of appeal is
conferred on both sides. The Court was of
the view that it may be a case of an
accidental omission and not of conscious
exclusion and in order to give a complete
and effective meaning to the statutory
provision, the Court should read the words
into it and the ultimate conclusion being
that an appeal from both sides is envisaged
under section 16(1) of the Act, 2007.
Paragraph Nos. 19, 20, 23 and 27 of the
said judgment reads as under:

"19. The petitioners assailed the
provisions of sub section (1) of Section 16
of the said Act on the ground that there
cannot be a right to appeal only to one of
the affected parties, as anomalous situation
would be created against the same order
with which both the parties may be
aggrieved.

17. In a similar controversy the
Madras High Court in Balamurugan v.
Rukmani (C.R.P.(PD)(MD) No. 437 of
2015 & M.P.(MD) Nos. 1 & 2 of 2015
decided on 29 April 2015) in agreement
with the view taken in Paramjit Kumar
Saroya (AIR 2014 Punjab and Haryana
121) has held that an appeal under section
16 of the Act, 2007 would be maintainable
on the behest of both the parties, i.e. at the
instance of the aggrieved party for the
reason that where the Tribunal decides a
case in favour of the senior citizens or
parents, the children or dependent or
relatives against whom the order is passed
and against whom it can be enforced under
section 11 of the Act, 2007 would be the
aggrieved person and have a right to file an
appeal.

18. He further placed reliance on the
case reported in AIR 2014 Punjab and
Haryana 121 (Paramjeet Kumar Saroya Vs.
Union of India and another) and judgment
rendered in case of Carew and Co. Ltd. v.
Union of India: (SCC 1.802, para 21),
wherein, it has been held the "The law is
not "a brooding omnipotence in the sky"
but a pragmatic instrument of social order.
It is an operational art controlling economic
life, and interpretative effort must be
imbued with the statutory purpose. No
doubt, grammar is a good guide to meaning
but
a
bad
master
to
dictate.
Notwithstanding the traditional view that
grammatical construction is the golden
rule, Justice Frankfurter used words of
practical wisdom when he observed#: (US
p. 138):

"There is no surer way to misread
a document than to read it literally."

19. We are thus of the view that
Section 16(1) of the said Act is valid, but
must be read to provide for the right of
appeal to any of the affected parties.

20. He has further submitted that in
our old customary laws, there was
traditional
principle
of
law
of
interpretation, which later on evolved and
took the form of new law of interpretation.
5 All. Smt. Roopam @ Jyoti Sharma & Anr. Vs. District Magistrate Lucknow & Ors.
411
Quoting the aforesaid, he has referred the
case of Gujarat Urja Vikas Nigam Ltd. v.
Essar Power Ltd., (2008) 4 SCC 755. The
Hon'ble
Supreme
Court
in
aid
of
interpreting a statute pressed into service
the traditional Mimansa system. These
principles are the traditional principles of
interpretation laid down by Jaimini and are
stated to have been used regularly by great
jurists who authored the Mitakshara and
Dayabhaga laws. The principles were
created for religious purpose, but they are
stated to be so rational and logical that they
began to be used in law, grammar, logic,
philosophy and, thus, became of universal
application. The three ways of dealing with
the conflicts under the Mimansa system
have been crystallized as under:--

"(1) Where two texts which are
apparently conflicting are capable of being
reconciled, then by the principle of
harmonious construction (which is called
the samanjasya principle in Mimansa) they
should be reconciled.

(2) The second situation is a
conflict where it is impossible to reconcile
the two conflicting texts despite all efforts.
In this situation the Vikalpa principle
applies, which says that whichever law is
more in consonance with reason and justice
should be preferred. However, conflict
should not be readily assumed and every
effort
should be made to reconcile
conflicting texts. It is only when all efforts
of reconciliation fail that the Vikalpa
principle is to be resorted to.

(3) There is a third situation of a
conflict Sharma Amodh and this is where
there are two conflicting 2014.05.31 11 : 40
I attest to the accuracy and integrity of this
document chandigarh CWP-12340-2010
(O&M)
irreconcilable
texts
but
one
overrides the other because of its greater
force. This is called a Badha in the
Mimansa system (similar to the doctrine of
ultra vires)." It is in the aforesaid context
that the Hon'ble Supreme Court observed
as under:--

"52. No doubt ordinarily the
literal rule of interpretation should be
followed, and hence the Court should
neither add nor delete words in a statute.
However, in exceptional cases this can be
done where not doing so would deprive
certain existing words in a statute of all
meaning, or some part of the statute may
become absurd."

21. He further placed reliance on the
case reported in (2008) 4 SCC 755 (Gujarat
Urja Vkas Nigam Ltd. Vs. Essar Power
Ltd.) and has referred paras 52 and 53 of
the aforesaid judgment, which are extracted
as under:-

52. No doubt ordinarily the literal
rule of interpretation should be followed,
and hence the Court should neither add nor
delete words in a statute. However, in
exceptional cases this can be done where
not doing so would deprive certain existing
words in a statute of all meaning, or some
part of the statute may become absurd.

53.
In
the
chapter
on
`Exceptional Construction' in his book on
`Interpretation of Statutes' Maxwell writes :
"Where the language of a statute, in its
ordinary
meaning
and
grammatical
construction
leads
to
a
manifest
contradiction of the apparent purpose of
the enactment, or to some inconvenience or
absurdity,
hardship
or
injustice,
presumably not intended, a construction
may be put upon it which modifies the
meaning of the words, and even the
structure of the sentence. This may be done
by departing from the rules of grammar, by
giving an unusual meaning to particular
words, by altering their collocation, by
412 INDIAN LAW REPORTS ALLAHABAD SERIES
rejecting
them
altogether,
or
by
interpolating other words, under the
influence, no doubt, of an irresistible
conviction that the legislature could not
possibly have intended what the words
signify, and that the modifications thus
made are mere corrections of careless
language
and
really
give
the
true
meaning."

22. He further placed reliance on the
case reported in 1991 (2) SCC 87 (Surjeet
Singh Kalra Vs. Union of INdia and
another) and has referred para 19 of the
aforesaid judgment, which is extracted as
under:-

19. True it is not permissible to
read words in a statute which are not there,
but "where the alternative lies between
either supplying by implication words
which appear to have been accidentally
omitted, or adopting a construction which
deprives certain existing words of all
meanings, it is permissible to supply the
words". Having regard to the context in
which a provision appears and, the object
of the statute in which the said provision is
enacted, the court should construe it in a
harmonious way to make it meaningful. An
attempt must always be made so to
reconcile the relevant provisions as to
advance the remedy intended by the statute.
[378E-G] Craies Statute Law, 7th Edition,
P. 109; Hameedia Hardware Stores V. B.
Mohan Lal Sowcar, [1988] 2 SCC 513 at
524-25, and Sirajul Haq Khan & Ors. v.
The Sunni Central Board of Waqf,

23. Learned counsel for the petitioner
further placed reliance on the case of
Hameedia Hardware Stores v. B. Mohan
Lal Sowcar, (1988) 2 SCC 513 where it
was observed that the court construing a
provision should not easily read into words
which have not been expressly enacted but
having regard to the context in which a
provision appears and the object of the
statute in which the said provision is
enacted. The court should construe it in a
harmonious way to make it meaningful. An
attempt must always be made so as to
reconcile the relevant provisions to advance
the remedy intended by the statute.

24. He further placed reliance on the
case reported in 1988 (2) SCC 513
(Hamedia Hardware Stores Vs. B. Mohal
Lal Sowcar), wherein, it has been held by
the Apex Court that object of an statute is a
primary goal and, as such, making it
meaningful, a harmonious interpretation
could be done.

25. He further placed reliance on the
case reported in S.C.R (Supreme Court
Reports) (Sirjul Haq Khan & Others Vs.
The Sunni Central Board of Waqf, U.P. and
others). The relevant parts of the aforesaid
order read as under:-

It is well settled that in construing
the provisions of a statute courts should be
slow to adopt a construction which tends to
make any part of the statute meaningless or
ineffective; an attempt must always be
made
so
to
reconcile
the
relevant
provisions as to advance the remedy
intended by the statute.

26. On the other hand, countering the
aforesaid, Sri Shailendra Kumar Singh
learned Chief Standing Counsel-III has
very vehemently opposed the contention as
has been made by the petitioners in
preceding paragraphs. He denied the
factual matrix of the case as averred by the
petitioners. He submits that overtly there is
no mention of the parties to the appeal
other than the senior citizen as well as
5 All. Smt. Roopam @ Jyoti Sharma & Anr. Vs. District Magistrate Lucknow & Ors.
413
parents as Section 16(1) of the Act, 2007 is
evident and, therefore, nothing can be
added against the intent of the legislature.

27. Learned Chief Standing Counsel
for the State submits that, in fact, it is
settled proposition of law that while
interpreting the statutes or Acts, there can
be iron on the fabric, but cannot change the
texture. He submits that, in fact, in the
given
situation/instant
matter,
the
legislature did not put the word in appeal,
which could reveal that the right to appeal
is extended to the children, relatives or any
other person aggrieved by the order passed
under Section 5 of the Act, 2007. He
submits that, in fact, had there been any
intention of the legislature to accord the
right of appeal to such a person other than
the senior citizen as well as the parents,
there would have been the specific
wordings in the appeal itself and, as such,
the interpretation of the statute cannot be
done by putting a word which has
cautiously not been added in the provisions.
Adding such a word in Section 16(1) of the
Act, 2007 would amount to make a
legislation by the Court which was not
warranted as to the intent of the legislature.

28. Strengthening his arguments, he
has placed reliance on a judgment in
Appeal
(Civil)
No.
2298
of
2001
(Gurudevdatta Vksss Maryadit and others
Vs. State of Maharashtra and others),
wherein, while passing the order, the Apex
Court has specifically held that when the
expression/ words of legislative provision
are capable to construct the purpose of the
provision, a court cannot ignore it and
further
cannot
substitute
a
different
construction as the same would affect the
object of the legislation. The relevant
paragraph of the aforesaid judgment is
quoted hereinunder:-

"Moreover,
as
the
extrinsic
material reveals, s.40(3) was intended to be
remedial. As far as practicable, s.40(1) and
(3) should be construed to promote the
objects of the Act. Nevertheless, as I
pointed out in Kingston v. Keprose Pty Ltd.
[1987 (11) NSWLR 404 at 423], in applying
a purposive construction, the function of
the court remains one of construction and
not legislation. When the express words of
a legislative provision are reasonably
capable of only one construction and
neither the purpose of the provision nor any
other provision in the legislation throws
doubt on that construction, a court cannot
ignore
it
and
substitute
a
different
construction because it furthers the objects
of the legislation."

29. Learned counsel has further
placed reliance on a case bearing Appeal
(Civil) No. 5077 of 1998 (Nasiruddin and
others Vs. Sita Ram Agarwal) and has
referred the relevant paragraph of the
aforesaid judgment, which is extracted as
follows:-

The
court's
jurisdiction
to
interpret a statute can be invoked when the
same is ambiguous. It is well known that in
a given case the Court can iron out the
fabric but it cannot change the texture of
the fabric. It cannot enlarge the scope of
legislation or intention when the language
of provision is plain and unambiguous. It
cannot add or subtract words to a statute
or read something into it which is not there.
It cannot re-write or recast legislation. It is
also necessary to determine that there
exists a presumption that the legislature has
not used any superfluous words. It is wellsettled that the real intention of the
legislation must be gathered from the
language used. It may be true that use of
414 INDIAN LAW REPORTS ALLAHABAD SERIES
the expression 'shall or may' is not decisive
for arriving at a finding as to whether
statute is directory or mandatory. But the
intention of the legislature must be found
out from the scheme of the Act. It is also
equally well-settled that when negative
words are used the courts will presume that
the intention of the legislature was that the
provisions are mandatory in character.

30. Referring the aforesaid judgments,
he submits that, in fact, it is settled
proposition of law that the 'words', which
should have been, but was not provided in
the statute cannot be settled by Courts as,
by doing so, the same would be otherwise
adopting the method of legislation and not
a construction.

31. Having heard learned counsel for
the parties and going through the record, it
emerges that right to appeal under the Act,
2007 is only attributed to the senior citizen
and the parents though, as per the
provisions of Section 5 of Act, 2007, the
order may be passed against the children,
relatives or any other person also. Section
5(2)(8) is reiterated as under:-

"(2) The Tribunal may, during the
pendency of the proceeding regarding
monthly allowance for the maintenance
under this section, order such children or
relative to make a monthly allowance for
the interim maintenance of such senior
citizen including parent and to pay the
same to such senior citizen including
parent as the Tribunal may from time to
time direct."

"(8) If, children or relative so
ordered fail, without sufficient cause to
comply with the order, any such Tribunal
may, for every breach of the order, issue a
warrant for levying the amount due in the
manner provided for levying fines, and may
sentence such person for the whole, or any
part of each month's allowance for the
maintenance and expenses of proceeding,
as the case be, remaining unpaid after the
execution of the warrant, to imprisonment
for a term which may extend to one month
or until payment if sooner made whichever
is earlier: Provided that no warrant shall
be issued for the recovery of any amount
due under this section unless application be
made to the Tribunal to levy such amount
within a period of three months from the
date on which it became due."

32. Question arises that whether there
can be an iota of intent of any legislature to
leave an aggrieved person remediless,
which is wholly against the principle of
natural justice and procedure established by
law.

33. The interpretation of a statutory
enactment is not a mechanical task. It is
also not based on mathematical formula.
While interpreting an statute, the intent of
the legislature is to be discovered. The
words used/imbibed in the statute are the
foremost reliable source of the meaning
and intent of any writing. In fact, the finest
guide of the meaning of the 'words' in the
matured jurisprudence does not lie only in
the dictionary, but the purpose and object of
the statute has an impact over there.

34. Though, it is a well settled
proposition of law that if the language is
plain and unambigous, the same cannot be
enlarged or added by way of interpretation
of statute. The words in a statute neither
can be substracted nor can be added, but
even then the intent of legislature is the
supreme goal to be achieved/interpreted.

35. So far as the parliamentary
debates while enactment of Act, 2007 is
5 All. Smt. Roopam @ Jyoti Sharma & Anr. Vs. District Magistrate Lucknow & Ors.
415
concerned, there has been no debate qua
Section 16(1) of the Act, 2007. The Section
5(2)(8)
specifically
enlarges
certain
obligations/liabilities over the children,
relative or any other person and, as such,
on the other word, they can be said to be a
person aggrieved. There can be no such
intent of the legislature so as to exclude the
right of appeal to such persons upon whom
the liability has been fastened. If Section
5(2) as well as Section 5(8) and Section
16(1) are read with each other, it emerges
that as per the aforesaid Section 16(1) right
of filing an appeal always remain available
to the person other than senior citizen and
parents also.

36. In view of the aforesaid
discussions, there seems to be an accidental
omission while enactment of the statute
namely Act, 2007, where under Section
16(1), the right to appeal has only been
given to the parents and the senior citizens
not to the children, relative or other person.
In any legislature of the world, there can be
no such discussion or intent to exclude a
person, who is aggrieved under the same
Act, to file an appeal or to extend any
remedy therein. So far as the rule of casus
omissus is concerned, it is also a vice-versa
as if there is a clear necessity of any
provision and that has been omitted, then
that is out of purview of the doctrine of
casus omissus.

37. Objective of any statute is always
to provide more effective provisions so that
there could remain no ambiguity. The
provisions for the maintenance are for
welfare of the parents and the senior citizen
and was promulgated for better care of
them but, there is another side of the story.
Because the maintenance has to be given
by some person or institute or a juristic
person and if such a maintenance is been
granted, some person must be affected and
thus, the non mentioning of the words in
Section 16(1) is not a casus omissus, but it
seems an accidental omission.

38.

The
rule
of
purposive
interpretation also indicates and establishes
that the law is such a thing which has to be
applied as a pragmatic instrument for social
order. The interpretative effort must be
inherent with the statutory purpose.

39. There is a well settled principle
that the judge can iron the fabrics but
cannot change the texture of statute. There
is another aspect of this rule that if texture
is itself defective due to accidental
omission, then that becomes inefficacious
and ineffective, and thus, the role of the
courts comes into picture. Many times, in
case of accidental omission, the Court by
way of applying the rule of purposive
interpretation has improved the texture,
though, did not change the same.

40. Further, it is also important that
there is no provision in the Act denying the
right of appeal to the other parties. From
perusal of the other provisions of the Act
and
various
sub
sections
discussed
aforesaid indicates that the right to appeal
to other parties has accidentally been
omitted. Only exception to this course of
action is the initial words of sub section (1)
of Section 16 of the said Act which need to
be supplanted to give a meaning to the
intent of the statutes.

41. The identical issue was also dealt
with by the Punjab and Haryana High
Court in case of Paramjeet Kumar
Saroya (supra) as well as in case of
Balamurugan (supra) by the Madras High
Court and it has been held that if the right
to appeal is not been accorded to the
416 INDIAN LAW REPORTS ALLAHABAD SERIES
children, relatives or any other person then
the purpose of the Act, 2007 would be
frustrated and rather this would be a denial
of right to appeal to the person aggrieved.

42. Thus, this Court is also in
agreement with the aforesaid orders and
find that the right to appeal to any affected
parties is available so far as the purpose of
the Act, 2007 is concerned.

43. Therefore, this writ petition is
hereby partly allowed. The order dated
24.02.2020 passed by respondent no.1 is set
aside. The liberty is granted to the
petitioners to file an appeal before the
Appellate Court under Section 16 of the
Act, 2007 afresh, within a period of 15
days from the date of this order and if such
an appeal is filed, the Appellate Authority
shall take decision on appeal within a
further period of four months after calling
objections and affording an opportunity of
hearing to the parties concerned.

44. No order as to costs.
----------
(2022)05ILR A416
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.05.2022

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ C No. 22991 of 2021

Ms. Saumya Singh ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Surya Prakash Singh, Anupama Bhadauria,
Ashok Kumar Yadava, Shalini Upadhyaya

Counsel for the Respondents:
A.S.G., Hemant Kumar Pandey

(A) Civil Law - Rights of Persons with
Disabilities - Sympathetic consideration -
The Rights of Persons with Disabilities
Act,
2016
-
Section
2
(s),2
(zc),16(vii),56,57,58,59 - "Psychosis" -
not defined under the Act, 2016 - a mental
disorder in which there is severe loss of
contact
with
reality,
evidenced
by
delusions,
hallucinations,
disorganized
speech patterns, and bizarre or catatonic
behaviors. (Para -17)

Petitioner (student of M.A English) could not join
third semester and appear in third semester
examinations on account of her medical
condition (Psychosis ) - admission of petitioner
stood cancelled on account of Clause 15 (b) of
the Ordinance - request of petitioner for her reregistration rejected by University - ground - no
provision for re-registration of any semester of
any course - perusal of ordinance prima facie
indicate - specific provision in Clause 15 (c) -
provides that students whose admission is
cancelled , are required to re-register for the
programme - re-registration can be permitted
subject to certain conditions - respondents while
issuing impugned order have not considered
Clause 15 (c) of the ordinance. (Para -3)

HELD:-
Petitioner
to
submit
a
fresh
representation indicating her grievance along
with certified copy of order to the Chancellor of
the University, i.e respondent no. 2. The
Chancellor of the University shall consider the
re-registration of petitioner and her continuance
in M.A (English) course keeping in view the
observations made, sympathetically. (Para -24 )

Writ petition disposed of. (E-7)

List of Cases cited:-

1. In Re Contagion of Covid 19 Virus in Children
Protection Homes , 2021 SCC Online SC 3178

2.