Allahabad High Court
Smt. Manju Gupta & Another vs State Of U.P. & 5 Others on 13 October, 2017
Bench: Tarun Agarwala, Ashok Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved
Civil Misc. Writ Petition No.9530 of 2017
Smt. Manju Gupta & Another ........ Petitioners
Vs.
State of U.P. and others ........ Respondents
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Hon'ble Tarun Agarwala, J.
Hon'ble Ashok Kumar, J.
(Per: Tarun Agarwala, J.)
(Delivered on 13th October, 2017)
1. The petitioners' are husband and wife and have filed the writ petition praying for the following reliefs:-
(a) Issue a writ, order or direction in the nature of mandamus directing the respondent no.2 to enquire the matter personally and protection may be given to the petitioners from respondent nos.5 and 6 who are son and daughter-in-law of petitioners.
(a-i) To issue a writ, order or direction in the nature of mandamus directing the respondent nos.3 and 4 to evict the respondent nos.5 and 6 from illegal possession of the constructed area of ground floor of the petitioners and restore the possession of the petitioners in the aforesaid place as earlier.
(b) Issue a writ, order or direction in the nature of mandamus, directing the respondent no.4 to go on the spot and take a necessary action in the matter of petitioners and connect electricity connection of water motor of the petitioners so that they may get water through water pipe.
(c) Issue any suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the fact and circumstances of the instant case.
(d) Award the cost of the writ petition in favour of the petitioner."
2. The facts leading to the filing of the writ petition is, that respondent no.5 is the son of petitioner no.1 and step son of petitioner no.2. Respondent no.6 is the daughter-in-law. The petitioners' contend that respondent no.5 is an electrical mechanic and has bad habits mixing with antisocial elements and creates a nuisance in the house. The petitioners' contend that they had broken all relationship with respondent no.5 and the daughter-in-law in the year 2009. In this regard, an affidavit on a stamp paper was also executed on 29th April, 2009. Respondent nos.5 and 6 have been living elsewhere since then. It was contended that since respondent no.5 continued with his nefarious activities, the petitioners issued a news item on 29th January, 2013 disassociating themselves with respondent nos.5 and 6.
3. It is alleged that on 16th October, 2016 respondent no.5 and 6 forcefully entered the house of the petitioner no.1 and took possession of one room on the ground floor. A complaint was made by the petitioners before the Station House Officer, who only forced the petitioners to enter into a compromise with respondent nos.5 and 6 and made a challani report under Section 107/116 Cr.P.C. It was contended that in this compromise, respondent nos.5 and 6 were paid a sum of Rs.2 lacs to leave the premises inspite of which respondent nos.5 and 6 refused to leave the premises. In this regard, the petitioner approached the Station House Officer again on 21st October, 2016 and gave representations to all the police authorities on 10th November, 2016 but nothing happened. The petitioner also filed an application under Section 156(3) Cr.P.C. before the Court, which is also pending.
4. It was also contended that the electricity connection of respondent nos.5 and 6 was disconnected, inspite of which, respondent nos. 5 and 6 were illegally drawing electricity from the pole by using an illegal line. Complaint in this regard was made to the Executive Engineer but nothing has been done. On the other hand, respondent nos.5 and 6 disconnected the electricity supply of the petitioners on 20th February, 2017. A complaint in this regard was made on 21st February, 2017 before Station House Officer and Senior Superintendent of Police. Since nothing happened, the present writ petition has been filed for the reliefs which has already been indicated aforesaid.
5. Respondent nos.5 and 6 have denied all the allegations contending that the harassment at the instance of their parents started when he questioned the disappearance of one of his sisters. Respondent no.5 contended that the house in question has been purchased in the name of petitioner no.1 i.e. his mother but he has also contributed around Rs.7 lacs in the purchase of the house and, therefore, has a right of residence. It was also contended that in this regard a suit has been filed against petitioner no.1, which is pending consideration. The respondents specifically contended that they have never disconnected the electricity connection of the petitioner.
6. On the other hand, respondent no.5 admits the incident of 16th October, 2016 contending that he was forced to enter into a compromise but never received any money and that a first information report had also been lodged against him on 6th March, 2017. The respondent no.5 also admitted that he was drawing energy from the pole illegally without a valid connection.
7. Based on the aforesaid, this Court directed the ADM (City) to conduct a spot inspection. A report was submitted indicating that respondent nos.5 and 6 have been living in the premises in question since long and that respondent nos.5 and 6 were illegally drawing the energy.
8. Based on the admitted use of energy illegally by respondent nos.5 and 6, the Court directed the Executive Engineer to lodge a first information report and initiate assessment proceedings. It has come on record that a first information report has been lodged against respondent no.5 and the electricity connection has been disconnected. A provisional assessment order was passed on 11th May, 2017 and after giving a notice, a final assessment order was also passed on 27th May, 2017. A demand notice under Section 3 of the U.P. Government Electrical Undertakings (Dues Recovery) Act, 1958 (hereinafter referred to as the Act of 1958) has been issued and recovery notice has now been issued on 31st July, 2017 under Section 5 of the Act of 1958 for recovery of Rs.43,180/- .
9. The Station House Officer has also filed his counter affidavit indicating that based on the incident of October 2016, respondent no.5 was arrested and, thereafter, was challaned. It was also contended that the parties entered into a compromise in which the police had no role to play. It was also contended that based on a complaint made by the petitioner, a first information report was lodged on 5th March, 2017, based on which, a chargesheet has also been filed. It was also stated that for the electrical theft, a first information report was lodged on 10th May, 2017 against respondent no.5.
10. The Senior Superintendent of Police has also filed a counter affidavit contending that respondent nos.5 and 6 are staying in the premises in question and that the DGP has issued a Circular No.17/2014 dated 13th March, 2014 with regard to protecting the interest of senior citizens. The Principal Secretary has also issued a government order dated 15th December, 2016. In response to the said government order, various steps have been taken by the police for the protection of life and property of the senior citizens.
11. In the light of the aforesaid factual position, the learned counsel for the petitioner submitted that a mandamus should be issued commanding the district administration to make due inquiry and protect the life and property of the petitioners under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as the Act of 2007) and the Rules framed therein. It was also contended that a mandamus should be issued directing the eviction of respondent nos.5 and 6 from the premises in question and that possession be handed back to the petitioners.
12. After hearing Sri Satyendra Narayan Singh, the learned counsel for the petitioners, Smt. Swati Agarwal, the learned counsel for respondent nos.5 and 6, Sri R.S. Umrao, Advocate holding brief of Sri Mahboob Ahmad, the learned counsel for the electricity department and the learned Standing Counsel for the State authorities, we find that during the pendency of the proceedings the electricity connection of the petitioners was restored by the electricity department. Assessment proceedings have already been initiated against respondent no.5 for the illegal drawing of energy without a valid connection.
13. In so far as granting possession of the property in question is concerned, we find that a sale deed has been executed in favour of petitioner no.1. The contention that respondent no.5 has contributed to the purchase of the house in question is not borne out from any evidence brought on record. The Court, however, refrains from commenting on this aspect since we find that respondent no.5 has filed a civil suit where he could led evidence in this regard. However, at the moment the property is in the exclusive name of petitioner no.1.
14. We however, are of the opinion that the provisions of the Act of 2007 cannot be invoked in the instant case. The Act has been promulgated to provide for more effective provisions for the maintenance and welfare of parents and senior citizens. Under this Act, a senior citizen and parents can be provided maintenance and welfare. The Act however, only provides protection of life and property of senior citizens and not for parents unless parents are also "Senior Citizens". Senior citizens have been defined under Section 2(h) as "any person being a citizen of India, who has attained the age of 60 years and above". In the instant case, petitioner no.1 is less than 60 years and is a government servant working in the District Magistrate's office at Pratapgarh. The age of petitioner no.2 has not been disclosed and it has only been stated that he is not doing any work and is staying in the house.
15. We are therefore, of the opinion that Chapter V of the Act of 2007 only provides for protection of life and property of senior citizens. The petitioners' are not senior citizens and, therefore, are not entitled for special protection under this Act. However, the petitioners are not remediless. If respondent nos.5 and 6 create nuisance and threaten the petitioners of their life and liberty as well as property, the remedy is to lodge a first information report and/or make a complaint to the authorities concerned. In so far as eviction of respondent nos.5 and 6 are concerned, the remedy under the general law is available, namely, to file a case of eviction before the appropriate forum. Writ petition is not the appropriate forum in the present facts and circumstances of the case.
16. We have been informed that the petitioners' electricity connection has been restored and, therefore, to that extent, the relief claimed by the petitioners has been met.
17. The writ petition is accordingly disposed of with a direction to the Executive Engineer, Electricity Department to ensure that the amount is recovered pursuant to the assessment proceedings initiated by them against respondent no.5. In the event, any kind of incident takes place in future between the petitioners and respondent nos.5 and 6, it would be open to the petitioners to move an appropriate application before the Station House Officer, in which case the police authorities will investigate and take it to its logical conclusion.
Date:13.10.2017
Bhaskar
(Ashok Kumar, J.) (Tarun Agarwala, J.)
