# Smt. Shanti Devi & Anr v. Union of India & Ors - **Citation:** Misc. Bench No. 6823 of 2020 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2020-03-05 - **Case number:** Misc. Bench No. 6823 of 2020 - **Bench:** Pankaj Kumar Jaiswal, Karunesh Singh Pawar - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shanti-devi-anr-v-union-of-india-ors-46349 - **Pages:** 4 ## Headnote Civil law-Court cannot direct the State to legislate-not even indirectly-power exclusvely conferred on the legislators-no writ can be issued-W.P. dismissed. (E-9) Cases cited: ## Text 3-5 All. Smt. Shanti Devi & Anr.Vs. Union of India & Ors. 1509 disputed thumb mark on the will, was different from the admitted thumb mark of Bahadur. They failed to do so. The petitioners cannot be permitted to fill in the lacuna in their case. 17. The lower appellate court has elaborately considered the factual matrix and held that the petitioners have not satisfied any of the conditions stipulated under Order 41 Rule 27 and hence they are not entitled to produce additional evidence. The Additional District Judge has rightly dismissed the application moved on behalf of the petitioners. 18. There is no infirmity or illegality in the order impugned in this petition. The petition is devoid of merit and is accordingly dismissed. ---------- (2020)03-05ILR A1509 ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 05.03.2020 BEFORE THE HON'BLE PANKAJ KUMAR JAISWAL, J. THE HON'BLE KARUNESH SINGH PAWAR, J. Misc. Bench No. 6823 of 2020 Smt. Shanti Devi & Anr. ...Petitioners Versus Union of India & Ors. ...Respondents Counsel for the Petitioners: Himanshu Raghave Counsel for the Respondents: C.S.C., A.S.G. Civil law-Court cannot direct the State to legislate-not even indirectly-power exclusvely conferred on the legislators-no writ can be issued-W.P. dismissed. (E-9) Cases cited: 1. Pravasi Bhalai Sangathan Vs. U.O.I. reported in AIR 2014 SC 1591 2. U.O.I. vs Prakash P. Hinduja & anr reported in AIR 2003 SC 2692 3. Suresh Seth Vs Commissioner, Indore Municipal reported in AIR 2006 SC 767 (Delivered by Hon'ble Karunesh Singh Pawar, J.) 1. Heard Sri Himanshu Raghav, learned counsel for the petitioner, Sri Rakumar Singh, learned counsel for respondent no. 1, and Sri Manish Mishra, learned counsel for respondent no. 2 and 3. Through this writ petition the petitioners are praying following relief:- (i) Issue an appropriate writ, order or direction thereby holding the omission to make any provision for enabling by State Government the restoration of property of senior citizens lost in deceptive transactions, ultra vires to Sub-section (2) of Section 22 of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007; (ii) Issue a writ, order or direction in the nature of mandamus or likewise thereby directing the State Government to restore the amount of money lost in the execution of fraudulent sale deed dated 15.01.2016 (Annexure No. 3) after recovering the same from the private opposite parties. 2. Brief facts of the case are that the petitioners are couple and senior citizens. The petitioner no. 2 retired in the year 2015 as driver from Public Works Department and as such he got certain post retiral dues. One Naresh Chand sold a piece of land 1510 INDIAN LAW REPORTS ALLAHABAD SERIES measuring 0.096 hectare from gata no. 365 situated in Village Mohammadpur Kala vide registered sale deed dated 15.01.2016. Consequently, his name came to be mutated in the revenue record. Thereafter opposite party no. 2 sold a piece of land measuring 0.243 hectare from gata No. 1262 situated at Village Chunka, Pargana and Tehsil Mohmoodabad, District Lucknow vide registered sale deed dated 15.01.2016 to petitioner no. 1 and on the basis of the said sale deed name his name was mutated in the revenue record on gata no. 1262. 3. It is contended that although the petitioners got possession of land gata no. 365, they were not allowed to get possession over gata no. 1262. Later on the petitioners were told that land pertaining to gata no. 365 had already been sold to opposite party no. 9 and the petitioners have not got the land on which they have spent all their money which they got as post retiral dues on the superannuation of the petitioner no. 2. 4. Aggrieved by this, the petitioners got an first information report dated 23.04.2017 registered vide case crime No. 143, under Sections 419/420/467/468/471 I.P.C., Police Station Mahmoodabad, District Sitapur. Regarding gata no. 1262, the petitioners filed regular suit no. 16 of 2018 "Smt. Shanti Devi Vs. Ram Naresh and Others" wherein learned Civil Judge (Senior Division) has passed order dated 16.01.2018 for maintaining of status quo till the next date. Thereafter, due to the ill health and old age of the petitioners, they could not do the pairavi in the civil suit and as such the interim order lapsed and the opposite parties took forcible possession on the land. 5. Learned counsel for the petitioners further submits that the petitioners have neither possession/ownership of the land nor the money they spent for the purchase of the same. They have been defrauded and they are forced to live under sub human conditions and the paltry pension available with petitioner no. 2 is highly insufficient to cater medical expenses, fooding clothing and day to day expenses. He further submits that the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 after receiving the assent of the President on 20.03.2007 was published in the gazetted of India on 31.12.2007. Section 22 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 Act mandates the State Government to prescribe the comprehensive action plan for providing protection of life and property of senior citizens. The Section 22 of the Maintenance and Welfare of Parents and Senior Citizens Act 2007 Act reads as under:- "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." 3-5 All. Smt. Shanti Devi & Anr.Vs. Union of India & Ors. 1511 6. It is also submitted that in exercise of powers and Section 22 of tthe Maintenance and Welfare of Parents and Senior Citizens Act 2007, the U.P. Maintenance and Welfare of Parents and Senior Citizens Rules, 2014 have been framed. It is submitted that although chapter 6 of Rules 2014, there is explicit provision which protects the senior citizens by fraudulent transfers and enabling the restoration of the property of senior citizens if it is taken by way of deception otherwise than in due process of law. It is lastly submitted that the aforesaid enactment might serve better purpose if in Section 22 of the Act, 2007, the following provision is included:- "(3) The State Government shall enable restoration of the property of senior citizens if taken away by way of deception, otherwise than in due process of law" 7. Learned counsel for the respondents have opposed the petition submitting that the petition contained disputed question of facts and even otherwise, this Court cannot direct the State Government to legislate. 8. Having considered the arguments of learned counsel for the parties and after pursuing the record, it appears that regarding part of gata no. 365 an F.I.R. has been lodged and regarding other sale deed pertaining to gata no. 1262 bearing regular suit no. 16 of 2018 "Smt. Shanti Devi Vs. Ram Naresh and Others" has been filed which appears to be pending, although the interim order granted on 16.01.2018 has lapsed. 9. Learned counsel for the petitioners submits that although regular suit is pending regarding gata no. 1262, however, considering the fact that the petitioners are senior citizens, ailing and are incapable in doing pairavi in the aforesaid regular suit, the amount of money lost in execution of the fraudulent sale deed dated 15.01.2016 contained in Annexure No. 3, may be restored in their favour after recovering the same from the private opposite parties. 10. From the record, it is evident that regular suit in respect of gata no. 1262, is already pending and law in this regard is settled that where a civil suit is pending respect of a lis writ petition is not maintainable. Even otherwise these are disputed question of facts which are pending adjudication before the learned civil court and therefore on this ground also the writ petition is not maintainable. 11. The petitioners by way of this writ petition are seeking a writ of mandamus directing the State Government to legislate for the restoration of the property of senior citizens if taken by way of deception for fraud and otherwise even in due process of law. Law in this regard is settled and therefore, this Court cannot direct to legislate. The Apex Court in "Pravasi Bhalai Sangathan v. Union of India reported in AIR 2014 SC 1591" has held that held that the our constitution clearly provides for separation of powers and the court merely applies the law that it gets from the legislators, the Court cannot rewrit, re-cast or re-framed the legislation for a very good reason that it has not power to legislate. the power to legislate has not been conferred on the courts. Likewise the court it is not have the powers to issue any direction to the legislators to enact any law in a particular manner. 12. The Apex Court has also considered this question in Union Of India 1512 INDIAN LAW REPORTS ALLAHABAD SERIES vs Prakash P. Hinduja & Anr reported in AIR 2003 SC 2692 wherein it was held as under:- "Under our constitutional scheme the Parliament exercises sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation." 13. In "Suresh Seth vs Commissioner, Indore Municipal reported in AIR 2006 SC 767" the Apex Court held as under:- "The Court cannot issue any direction to the Legislature to make any particular kind of enactment. Under our constitutional scheme Parliament and Legislative Assemblies exercise sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation." 14. In view of the above, law laid down by the Apex Court it is clear that this Court cannot issue any mandamus directing the State legislature even indirectly to legislate that power being exclusively conferred on the legislators and no writ can be issued by this Court. Apart from the above, the writ petition contains disputed question of facts which cannot be adjudicated by this Court, accordingly, the same fails and is dismissed. ---------- (2020)03-05ILR A1512 ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 21.07.2017 BEFORE THE HON'BLE RAKESH SRIVASTAVA, J. Misc. Single No. 16005 of 2017 Suresh Kumar & Ors. ...Petitioners Versus A.D.J. Court No. 1 Lko & Ors. ...Respondents Counsel for the Petitioners: Anurag Srivastava Counsel for the Respondents: ----- Civil Law-Agreement to execute sale deed in favour of petitioner-suit filed by Petitioner-notice issued-respondent did not appeared-sale deed executed in favour of Petitioner exparte-Application filed for setting aside the ex parte judgment and decree-along with delay condone application-delay condonedsettled proposition-sufficient cause to be liberally construed-discretion should not be readily interfered-W.P. dismissed. (E-9) Cases cited: 1. Salil Dutta Vs. TM & MC Pvt. Ltd., (1993) 2 SCC 185 2. Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd., (2003) 2 SCC 111 3. Deputy Collector, Northern SubDivision Panajii Vs. Comunidade of Bambolim, AIR 1996 SC 148 4. Ashok v. Rajendra 4 Bhausaheb Mulak, (2012) 12 SCC 27 5. N. Balakrishnan Vs. M. Krishnamurthy, (1998) 7 SCC 123 6. Bhagmal Vs. M.P. Cooperative Marketing and Consumer Federation Ltd., (2003) 11 SCC 727 7. Sarpanch, Lonand Grampanchayat Vs. Ramgiri Gosavi, AIR 1968 SC 222 (Delivered by Hon'ble Rakesh Srivastava, J.) 1. Heard Sri Anurag Srivastava, learned counsel for the petitioners.