Nikita Basant vs Sub Divisional Magistrate ...
2019 Latest Caselaw 6278 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 25
 
Case :- MISC. SINGLE No. - 20522 of 2019
 
Petitioner :- Nikita Basant
 
Respondent :- Sub Divisional Magistrate Ghaziabad & Ors.
 
Counsel for Petitioner :- Ram Raj
 
Counsel for Respondent :- C.S.C.,Rishabh Raj
 
Oral
 
Hon'ble Mrs. Sangeeta Chandra,J.

1. This petition has been filed by the petitioner challenging the order passed by the SDM, Ghaziabad in purported exercise of its power under Sections 21, 22 & 23 or the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The office had put up a note that the matter relates to district Ghaziabad and therefore this Court may see whether the petition is maintainable at Lucknow.

2. Learned Senior Counsel, Sri Prashant Chandra assisted by Sri Ram Raj has addressed this Court on the cause of action which has led to the petitioner approaching this Court at Lucknow.

3. It has been submitted by the learned counsel for the petitioner that the petitioner is the wife of one Dadhich Singh son of Krishnaveer Singh arrayed as opposite party no. 2 in this petition, and she has been living separately from her husband for sometime. They are at-least 19 cases that had been filed either by the petitioner or by her husband, or by Sister-in-law, or Mother-in-law, which have either been decided or pending at Lucknow on transfer applications being accepted by this Court.

4. The list of such cases has been filed as Annexure 22 to the writ petition. Some of the cases were filed at Ghaziabad which were transferred by means of filing transfer application before this Court at Lucknow. Two such orders have been referred to by the learned counsel for the petitioner filed as Annexures 4 and 6 to the petition wherein transfer application has been entertained and the cases filed at Ghaziabad have been transferred to Lucknow.

5. The immediate cause for instituting this writ petition has arisen because the opposite party no. 3 - Krishnaveer Singh - the father-in-law of the petitioner had filed an application before the District Magistrate, Ghaziabad under Sections 21, 22 & 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

6. The District Magistrate on 24.9.2018 had referred the matter to the Sub Divisional Magistrate, Ghaziabad who has passed the impugned order wherein while admitting that such an application in "stricto sensu" was not maintainable in his Court under the Act of 2007, has nevertheless passed an order in the nature of an injunction against petitioner. Learned Senior Advocate has read out the internal page 4 of the impugned order dated 22.4.2009 wherein the Sub Divisional Magistrate, Ghaziabad has made the following observations :-

^^izkFkhZ @ oknh }kjk mDr vf/kfu;e dh /kkjk 23 o 24 ds vUrZxr laj{k.k fn;s tkus rFkk oknh dh lEifRr esa foi{kh la[;k 1 o 2 gLr{ksi ls jksds tkus o rax o ijs'kku u djus gsrq ;kpuk dh x;h gSA ;fn oknh ds ;kfpdk @ vkosnu i= dks bl n`f"V ls ns[kk tk;s rks ;g oknh dk izkFkZuk i= iks"k.kh; ugha gS] D;ksafd oknh us ;g dFku ugha fd;k gS fd mls vius Hkj.k iks"k.k esa dksbZ ijs'kkuh gks jgh gSA blds vfrfjDr foi{kh la[;k 1 o 2 oknh ds lkFk ugha jgrs gSa vkSj u gh oknh }kjk vftZr edku esa jgrs gSA izkFkh }kjk vius izkFkZuk i= esa ;g Hkh ugha dgk x;k fd mlds ikl Hkj.k iks"k.k ds fy; i;kZIr lEifRr ugha gSA ,slh fLFkfr esa mls bl vf/kfu;e ds rgr izdVr;k dksbZ vuqrks"k ikus dk vf/kdkj ugha gSA**

7. Yet the opposite party no. 1 while being aware that the petitioner is living at Lucknow with her parents and is the enstranged wife of the opposite party no. 2, the son of opposite party no. 3 has made observations in the order which could prevent the petitioner from ever setting foot in district Ghaziabad without being harassed by the police under the garb of the order passed by the SDM, Ghaziabad.

8. It has been submitted by the learned counsel for the petitioner that the Hon'ble Supreme Court while considering the question of territorial jurisdiction in Naval Kishor Sharma Vs. Union of India & others 2014 (9) SCC 329 has referred to the fact that even if only communication of order of dismissal / discharge from service was made to the appellant at Gaya, Bihar, from where indisputably he had made several representations to the respondents for his financial claims as per the statutory provisions and terms of contract, part of cause of action had arisen at Gaya, Bihar and the High Court at Patna wrongly dismissed his petition saying that the respondents "Situs" was in Maharashtra and Shipping Corporation was not within the territorial jurisdiction of the Patna High Court.

9. Learned counsel for the petitioner has also referred to paragraph 9 of Kusum Ignots Vs. Union of India 2004 (6) SCC 254 where the Supreme Court observed that the cause of action would mean the entire bundle of facts pleaded, but moreso it would mean the material facts or the integral facts for the decision of the controversy. The material facts in this case are that the petitioner is the esstranged daughter-in-law and she is living with her parents at Lucknow and had no concern with the welfare or maintenance of her father-in-law who is an independent, individual and retired from suitably high post from the Delhi Development Authority and is getting pension from the Delhi Development Authority and has other independent sources of income also.

10. Learned counsel for the petitioner has also placed reliance upon Navinchandra N. Majitihia Vs. State of Maharashtra & others 2000 (7) SCC 640 where the Supreme Court had observed that High Court at Maharashtra had failed to consider all relevant facts necessary to arrive at a proper decision on the maintainability of the writ petition, on the ground of lack of territorial jurisdiction. The Court had wrongly based its decision on the sole consideration that the complainant had filed the complaint at Shillong in the State of Meghalaya and the petitioner had prayed for quashing of the said complaint at Mumbai.

11. The Supreme Court had observed in the aforecited decisions on the basis of definition of cause of action given in Black's Law Dictionary and Stroud's Judicial Dictionary that the High Court would have jurisdiction under Article 226 to entertain the writ petition for enforcement of any of the fundamental rights or for any other purpose, if the cause of action had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or Authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories.

12. Learned senior counsel has also referred to a judgment rendered by the Hon'ble Supreme Court in somewhat to different facts in Rupali Devi State of U.P. & others 2019 (5) SCC 384 where even a criminal case pending before the some other Court was directed to be transferred at the place where the wife had taken shelter after leaving or being driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives.

13. On considering the submissions made by the learned counsel for the petitioner and also going through the facts as pleaded in this petition and supplementary affidavit filed thereafter that the SDM, Ghaziabad had no jurisdiction altogether and had not been constituted as a Tribunal by the State Government under the Act of 2007 to entertain any complaint if at all made by the opposite party no. 3 before him, this Court finds this writ petition to be maintainable before it at Lucknow.

14. Issue notice to the opposite party nos. 2 & 3 returnable at an early date.

15. The petitioner shall take steps within a week.

16. The office shall indicate the matter to be listed on 12.9.2019 before the appropriate Court.

17. Till the next date of listing, the effect and operation of the impugned order shall remain stayed.

18. When the case is next listed, the name of Sri Rishabh Raj shall be shown as appearing for the petitioner.

Order Date :- 1.8.2019

Arif