Km. Janki Devi And Anr. vs State Of U.P. And 2 Ors.
2017 Latest Caselaw 6007 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 

 
Civil Misc. Writ Petition No. 31851 of 2016
 

 
Km. Janki Devi and Another		            ....... Petitioners.
 
Vs.
 
State Of U.P. and others.	                .......  Respondents.
 

 
**********
 

 
Hon'ble Tarun Agarwala,J.

Hon'ble Ashok Kumar,J.

(Per: Tarun Agarwala, J.)

Delivered on 30.10.2017

1. The petitioner no.1 is a retired Basic Shiksha Adhikari and is about 75 years of age. The petitioner is also a spinster. It is alleged that petitioner no.1 is a paraplegic patient having a permanent disability of 70%. It is alleged that the petitioner no.1 is unable to sign or speak since 4th of November, 2015. The petitioner no.1 has a pension account in Punjab National Bank. In September, 2014, a joint account was opened in the same Bank in the name of petitioner no.1 and petitioner no.2 and a sum of Rs. 22.40 lakhs was transferred from the pension account to this joint account. A sum of Rs. 18 lakhs was withdrawn immediately thereafter by the husband of petitioner no.2 and, on a regular basis, Rs. 10, 000/- to 15,000/- was being withdrawn from the said account. When the funds started depleting from this joint account, the present writ petition was filed contending that the petitioner no.2 is a relative of petitioner no.1 and is taking care of petitioner no.1. The petitioner no.2 contended that in order to look after petitioner no.1, she required money and since the petitioner no.1 is unable to speak or sign, it was not possible to withdraw any amount from petitioner no.1's pension account. Consequently, a prayer was made that a writ of mandamus should be issued to the respondent-Bank to transfer the money from the pension account of petitioner no. 1 to the joint account of petitioners no.1 and 2 so that petitioner no.2 could withdraw the amount and use that money for maintaining petitioner no. 1 for fooding, medication, etc.

2. This Court issued notices and, on the basis of the affidavits filed, found that petitioner no.1 has no relatives or heirs. There is no nomination in favour of any person in her pension papers nor there is any nominee in her pension account with the Bank.

3. In so far as petitioner no. 2 is concerned, at one place, she claims to be the next best friend of petitioner no. 1 and at another place, she states that she is a relative and still at another place, she alleges that she is the niece of petitioner no.1. It is also alleged that petitioner no.1 performed the Kanyadaan when petitioner no.2 got married with Sandeep. It is also alleged that the daughter of petitioner no.2 was adopted by sister of petitioner no.1. The fact remains that there is no concrete evidence that petitioner no. 2 or her husband are in any manner blood related to petitioner no.1. However, the fact remains that petitioner no.2 and her husband are actually looking after the petitioner no.1 and are providing day to day sustenance to her.

4. This Court found that large sums of money was withdrawn by the husband of petitioner no.2. This Court directed the District Magistrate to inquire into the matter and submit a report. The Court also directed the District Magistrate to find out as to whether the petitioner no. 1 was being looked after by petitioner no. 2 and her husband. The reply filed by the District Magistrate is unsatisfactory. Nothing has been brought on record to indicate the status of petitioner no. 2 and her husband nor any effort was made by the District Magistrate to find about the justification of withdrawal of large sums of money including the withdrawal of Rs. 18 lakhs.

5. We, however, find that the Finance Secretary, U.P. filed an affidavit dated 5th of July, 2017 indicating that an office memorandum dated 26th of May, 2017 has been issued by the Additional Chief Secretary and Finance Commissioner, Department of Finance, Government of U.P., to provide a mechanism for payment of medical bills from the pension account of petitioner no.1 against submission of medical bills. By this office memorandum, a four member Committee has been constituted, which is to be headed by the District Magistrate and its members would the Chief Medical Officer, the Chief Treasury Officer and the District Basic Education Officer. By this Government Order, the Chief Treasury Officer was required to collect the bills from the hospital and after verifying, would place the same before the Committee and the Committee would thereafter direct the Bank to debit the amount from the pension account of petitioner no. 1 and to credit the same to the hospital's account through NEFT/RTGS as the case may be.

6. Since this mechanism was insufficient as no steps were taken by the State Government to look after petitioner no. 1 on a day-to-day basis, the Court by an order dated 5th July, 2017 further directed the State Government to consider the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as the Act) and evolve a mechanism for maintenance of petitioner no. 1 and for protection of her life and property.

7. Based on the said direction, the Secretary Finance issued an Office Memorandum dated 15th of July, 2017 nominating the District Social Welfare Officer as the Maintenance Officer under Section 18 of the Act. By this Office Memorandum, the District Social Welfare Officer was required to visit the residence of petitioner no.1 once a week. The said officer was also nominated as the hearing officer. The Office Memorandum further directed the District Magistrate to make necessary inquiries and, in the event, found that petitioner no.2 and her husband were not looking after petitioner no.1, in that event, necessary steps would be taken by the District Magistrate to transfer petitioner no.1 to an old age home. The District Magistrate was also authorized to release the monies to the District Social Welfare Officer.

8. In the light of the aforesaid and, on the basis of the affidavits filed by petitioner no.2, the Punjab Nation Bank and the State Authorities, the facts which are admitted is, that petitioner no.1 is a spinster and has no relatives. She is unable to speak or write. Other than that there is no medical illness which requires hospitalization of petitioner no.1. Petitioner no.1 is staying in her own house and is being looked after by petitioner no. 2 and her husband.

9. The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 was promulgated to provide for more effective provision for maintenance and welfare of parents and senior citizens. The statement of Objects and Reasons pointed out that the traditional norms and value of the Indian Society which lays stress on providing care for elderly is waning due to withering of the joint family system. The elders are facing emotional neglect and lack of physical and financial support. The Objects and Reasons notices that aging has become a major social challenge and despite the provisions of the Code of Criminal Procedure for maintenance, it was deemed necessary that there should be a simple, inexpensive and speedy provision to claim maintenance for the parents and senior citizens. The Act is not restricted to only providing maintenance but cast an obligation on the persons who inherit the property of their aged relatives to maintain such aged relatives. One of the major aims is to provide for institutionalization of a suitable mechanism for protection of life and property of older persons.

10. The Act provides for the State Government to create a mechanism and provide maintenance to the senior citizens and also to provide medical facilities to them as well as to protect their life and property. The Act also provides for setting up of old age homes in every District.

11. Section 4 of the Act provides for maintenance of parents and senior citizens, namely, that where a senior citizen is unable to maintain himself from his own earnings, the senior citizen would be entitled to make an application under Section 5 of the Act.

12. Section 5 of the Act provides that a senior citizen and parent or any other person authorized by the senior citizen or parent or organization can file an application before the Tribunal. Sub clause (2) and other Sub-sections of Section 5 of the Act provides the procedure for the Tribunal to take cognizance and proceed in the matter.

13. Section 18 of the Act provides that the State Government shall designate the District Social Welfare Officer as a Maintenance Officer who shall represent the senior citizen during the proceedings before the Tribunal or the Appellate Tribunal, as the case may be.

14. Section 21 of the Act provides that the State Government shall take all measures to give wide publicity through public media including television, radio & the print and sensitise not only the public but also Central and State Government employees, police officers and members of the judicial service on the issues relating to this Act.

15. Sub clause (2) of Section 22 of the Act further provides that the State Government shall prescribe a comprehensive action plan for providing protection of life and property of senior citizens.

16. Section 32 of the Act gives power to the State Government to make rules for carrying out the purposes of the Act, based on which, the Uttar Pradesh Maintenance and Welfare of Parents and Senior Citizens Rules, 2014 (hereinafter referred to as the Rules of 2014.) was enacted.

17. Rule 21 of the Rules of 2014 gives powers and duties to the District magistrate to ensure that the life and property of the senior citizens of the districts are protected and that they are able to live life with security and dignity. The District Magistrate has also been given powers to oversee and monitor that adequate maintenance is provided to the senior citizens and to ensure that the provisions of the Act are carried out.

18. Rule 22 of the Rules of 2014 provides that the District Superintendent of Police shall take necessary steps for protection of life and property of the senior citizens and that each police station shall maintain an up-to-date list of senior citizens and that a representative of the police station shall visit such senior citizens at regular intervals at least once a month and the complaints and problems of the senior citizens would be promptly attended to by the police station.

19. Rule 24 of the Rules of 2014 provides for establishment of District Committee of Senior Citizens to be headed by the District Magistrate.

20. From the affidavits filed by the State Government, it is apparently clear that neither publicity has been given nor any steps have been taken by the State Government to sensitise its employees and implement the provisions of the Act and the Rules of 2014. The State Government is totally unaware of the enactment of the Act so much so that when directions were issued by this Court, an Office Memorandum dated 26th of May, 2017 was issued for payment of medical bills through the Chief Treasury Officer upon verification of the bills given from the hospital without taking into consideration the mechanism required to be implemented under the Act and the Rules. Further, the aforesaid office memorandum was issued on the strength that petitioner no.1 was in "coma" and in hospital. No steps were taken by the State Government to find out the health and status of petitioner no.1. Such was the apathetic stand of the State Government. It was only when the Court directed the State government to consider the provisions of the Act, that a further Office Memorandum dated 15.07.2017 was issued.

21. We also find that no measures have been taken by the State Government in terms of Section 21 of the Act. No Tribunal has been constituted till date under Section 5 of the Act nor any Appellate Tribunal has been constituted. The State government has not issued any direction under Section 22 of the Act to any District Magistrate to implement the provisions of the Act nor any steps have been taken by the State Government to constitute an old age home in each district under Section 19 of the Act. No direction has been issued by the State Government to the District Magistrates of all the districts in the State of Uttar Pradesh for implementation of the Act and Rules of 2014 nor any direction has been issued by the State Government to the District Superintendent of Police or Divisional Inspector General of Police providing guidelines for protection of life and property of senior citizens under Rule 22 of the Rules of 2014 nor any steps have been taken by the District Magistrate for establishment of a District Committee for senior citizens under Rule 24 of the Rules of 2014.

22. In the instant case, petitioner no.1 is a spinster with no relatives and is being forced to spend her twilight years all alone and is exposed to emotional neglect due to lack of physical and financial support. She cannot speak or write. She has money in her pension account but is unable to withdraw as she cannot write or make signature on the cheque. This aging and helplessness has become a major social challenge. There is an immediate need for the State Government to take care of petitioner no.1 and provide facilities to maintain and protect the life and property of petitioner no.1.

23. In the light of the aforesaid, we find that in the instant case, the Office Memorandum dated 26th of May, 2017 issued by the Additional Chief Secretary & the Finance Commissioner and the Office Memorandum dated 15th of July, 2017 issued by the Secretary Finance is required to be modified.

24. In addition to the directions given in Office Memorandums dated 26.05.2017 and 15.07.2017, we direct that;

(i) the formation of the Committee shall be headed by the District Magistrate, which will consist of Chief Medical Officer, Chief Treasury Officer, District Basic Education Officer and District Social Welfare Officer as its members. The Chief Treasury Officer will act as a convener.

(ii) The District Social Welfare Officer will be the Maintenance Officer as per Section 18 (1) of the Act. The District Social Welfare Officer will visit once a week at the residence of petitioner no.1 to find out about the welfare of petitioner no.1 and to enquire the necessary requirements that petitioner no.1 is required to be provided. Necessary enquiry may also be made from petitioner no.2

(iii) The District Welfare Officer will submit a report to the District Magistrate about the requirements that are to be provided to petitioner no.1.

(iv) The Chief Medical Officer will either himself or any doctor nominated by him will make forthrightly visits to the residence of petitioner no. 1 and ensure a medical checkup. Necessary medicines would be prescribed and would be given to the District Social Welfare Officer. Such prescription would be placed before the Committee.

(v) The Committee will consider the prescription and take adequate steps to provide medicines to petitioner no.1 immediately through the District Social Welfare Officer. For the aforesaid purpose, the Committee may direct the Social Welfare Officer to purchase the medicines and provide the same to petitioner no.1 or reimburse the money to petitioner no.2 upon production of medical receipts.

(vi) For day to day needs namely, food, etc. adequate amount would be assessed by the District Social Welfare Officer and the same shall be released by the Committee to the person looking after petitioner no.1.

(vii) All bills plus other expenses shall be processed by the Committee and the amounts would be released by the Chief Treasury Officer in the relevant account. For day to day needs, certain amounts may be released and paid to the petitioner no. 2 or to the authorized person in cash or to the District Social Welfare Officer in the event he is authorized to spend the money.

(viii) The District Magistrate will ensure that the life and property of petitioner no.1 is protected and that petitioner no.1 is able to live her remaining life with security and dignity as provided under Article 21 of the Constitution of India.

(ix) The District Magistrate will oversee and monitor the entire welfare of petitioner no.1 and would be personally responsible.

25. In addition to the aforesaid, the District Magistrate will constantly monitor whether petitioner no.2 and her husband are looking after petitioner no.1. The District Magistrate will also investigate the withdrawal of the amounts by petitioner no.2 and her husband from the joint account since 15th of September, 2014 till date and find out as to whether the withdrawal was for the benefit and welfare of petitioner no.1 or was for ulterior purposes. In the event, the District Magistrate finds that petitioner no.2 and her husband are not looking after petitioner no.1, in which case, necessary steps would be taken by the District Magistrate to provide maintenance to petitioner no.1 through a voluntary organization or by any authorized person at the residence of petitioner no.1 and if that is not possible, only in that eventuality, the petitioner no.1 would be shifted to an old age home.

26. In addition to the aforesaid, we direct the Chief Secretary, Government of Uttar Pradesh to issue necessary orders for implementation of the provisions of the Act and the Rules within three months, namely:-

a) The establishment of Tribunal, Appellate Tribunal under Section 5 and 15 of the Act.

b) Designation of Maintenance Officer under Section 18 of the Act.

c) Establishment of old age homes under Section 19 of the Act.

d). Take appropriate measures to give wide publicity in the media, (print, television and radio) and to sensitize the public and also the police officers, employees of the State Government including members of the judicial service, etc. under Rule 21 of the Rules, 2014.

e) Provide guidelines conferring powers and duties on the District Magistrate under Rule 22 of the Rules, 2014.

f) Constitute District Committee of senior citizens under Rule 24 of the Rules, 2014.

26. The writ petition is disposed of with the aforesaid directions. A certified copy of the order shall be sent by the Registry to the Chief Secretary within a week for necessary information and action. The Standing Counsel will also intimate this order to the District Magistrate concerned immediately for implementation of this order.

 
Order Date :- 30.10.2017
 
YK
 
(Ashok Kumar, J.)    (Tarun Agarwala, J.)