Punjab-Haryana High Court
Harmohinder Singh vs State Of Punjab & Ors on 14 October, 2014
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Deepak Sibal
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
LPA No. 1588 of 2014
DATE OF DECISION : 14.10.2014
Major Harmohinder Singh (Retd.)
.... APPELLANT
Versus
State of Punjab and others
.... RESPONDENTS
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE DEEPAK SIBAL
Present : Mr. Atul Lakhanpal, Senior Advocate, with
Mr. R.S. Chahal, Advocate,
for the appellant.
***
SATISH KUMAR MITTAL, J.
The appellant, a senior citizen, has filed the present intra court appeal under Clause X of the Letters Patent against the order dated 12.08.2014 passed by the learned Single Judge, whereby the writ petition (CWP No. 24392 of 2013) filed by the appellant seeking direction to the State of Punjab (respondents No.1 and 2) to implement the provisions of Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as `the Act of 2007') by creating authorities under Section 22 of the Act of 2007 for protection of life and property of the senior citizens, has been dismissed.
Learned counsel for the appellant contends that the learned Single Judge has erred in law while not issuing the aforesaid direction, as DASS NAROTAM 2014.10.27 12:14 I attest to the accuracy and authenticity of this document LPA No. 1588 of 2014 -2- the similar direction was issued by this Court in the case of Union Territory, Chandigarh, in Justice Shanti Sarup Dewan and another versus Union Territory, Chandigarh and others (LPA No. 1007 of 2013 decided on 26.09.2013), directing the Administration of Union Territory, Chandigarh, to take steps to bring into force proper rules under Section 32 (1) of the Act of 2007 for the purposes mentioned under sub section (2) of Section 32 more specifically clauses (e) and (f) so as to protect the life and property of senior citizens as envisaged under Section 22 of the Act of 2007. A comprehensive action plan including enforcement of mechanism and conferring relevant powers to the District Magistrate or officers subordinate to him as envisaged under sub section (1) of Section 22 of the Act of 2007 was also ordered to be enforced.
In the instant case, while noticing the peculiar facts and circumstances of the case as well as the fact that the State of Punjab has already framed the Punjab Maintenance and Welfare of Parents and Senior Citizens Rules, 2012, notified on 17.10.2012 (hereinafter referred to as `the Rules of 2012'), the learned Single Judge has declined to issue any further direction, in exercise of the writ jurisdiction of this Court. It has been noticed by the learned Single Judge, which is an undisputed position, that the appellant wants eviction of his divorced wife (respondent No.4) and sons (respondents No.5 and 6), residing in the house owned by him. In this regard, a civil suit filed by the appellant seeking eviction of his divorced DASS NAROTAM 2014.10.27 12:14 I attest to the accuracy and authenticity of this document LPA No. 1588 of 2014 -3- wife and sons is already pending in the court of Civil Judge at Mohali. In the said suit, the divorced wife and sons of the appellant have also filed counter claim, claiming their legitimate right to reside in the house. It has also been noticed by the learned Single Judge that the whole object of the appellant is to eject his divorced wife and sons from the house and for that purpose, he wants that the District Magistrate be empowered and a mechanism be created to evict them by following the summary procedure. But since the aforesaid civil suit filed by the appellant is pending, the civil court will decide the respective rights of both the parties in the said suit. Without expressing any thing on merits, as a reminder, while referring to a decision of the Hon'ble Supreme Court in B.P. Achala Anand V. S. Appi Reddy and another, AIR 2005 SC 986, the learned Single Judge has observed that a wife includes divorced wife. It has been further observed that as per the decision of the Hon'ble Supreme Court in Rajesh Burmann V. Mutul Chatterjee, AIR 2009 SC 651, a divorced wife is to be protected against her husband by providing for maintenance including a right to residence. While noticing all these facts, keeping in view the facts and circumstances of the instant case, the learned Single Judge has declined to issue the direction sought by the appellant. With regard to the decision of this Court in Justice Shanti Sarup Dewan's case (supra), the learned Single Judge has made the following observations :
"It must again be remembered that direction given by the Division Bench in Justice Shanti Sarup's case to be an DASS NAROTAM 2014.10.27 12:14 I attest to the accuracy and authenticity of this document LPA No. 1588 of 2014 -4- extraordinary case in an extraordinary situation. He was a former Chief Justice of this Court who was seeking for protection in the court he presided. The relief granted cannot be a precedent to a commonplace occurrence of the daily squabble at home between spouses or members in the family and a precipitate action for ejectment of a wife or a daughter-in-law from the matrimonial home, which is understood as a shared household between husband and wife or a father, son and daughter-in-law. Even a potent and protective legislation like Protection of Women against Domestic Violence Act, 2005 (for short, Act of 2005) will be rendered effete, if it were to be wrongly assumed that a father can throw out his daughter or daughter-in-law; that a husband can throw out the wife, estranged wife or divorced wife. The provisions of the Act of 2007 and the Act of 2005, referred to above, cannot be used for cross purposes, one annihilating the other. A parent who invokes the provisions of the Act of 2007 cannot create a situation that makes irrelevant the right of a female for securing a protection which is guaranteed under the Act of 2005. The provisions of the protection which is contemplated under Chapter V is an empowering provision for the welfare of a senior citizen that must be read cohesively that the right of a woman to be protected which is guaranteed under the Act of 2005. Justice Shanti Sarup's case (supra) must be confined to the facts of the case. It was the case of a person, who had made provision for son and daughter-in-law for a separate house elsewhere. There were incidents of intense disharmony and physical and mental assaults. No two cases are alike. It will be wrong to import a principle of law from the judgment that law recognizes an action for ejectment for a husband or father in law to deny a woman a right to shelter, the most required protection for a woman, the recognition of her right to safety and a non-negotiable tool for nurturing her dignified living."DASS NAROTAM 2014.10.27 12:14 I attest to the accuracy and authenticity of this document LPA No. 1588 of 2014 -5-
Learned counsel for the appellant vehemently argued that the learned Single Judge has erred in law while not issuing the direction to the State of Punjab to bring into force proper rules under sub section (1) of Section 32 of the Act of 2007 and to create a proper mechanism under the Act of 2007, in order to protect the life and property of the senior citizens. Learned counsel argued that power be given to the District Magistrate or an authority for summarily evicting the person, who is in illegal occupation of the property of a senior citizen.
In the facts and circumstances of the instant case, we are not in agreement with the aforesaid contention. We have gone through the Rules of 2012, framed by the Punjab Government, under sub-sections (1) and (2) of Section 32 of the Act of 2007. In our opinion, these Rules are comprehensive Rules, which deal with the object of the Act of 2007 and give sufficient mechanism to take care of the maintenance of senior citizens and protect their life and property. Not only a Tribunal has been constituted, but an Appellate Authority has been provided to hear grouses of the senior citizens with regard to their maintenance, including protection of their life and property. A complete mechanism in this regard has been provided. Under Rule 22 of the Rules of 2012, the District Magistrate has to ensure that life and property of senior citizens of the district are protected. The District Magistrate has ample power under the Cr.P.C., to protect a person, who is in possession of a property. If a person, who is in settled possession DASS NAROTAM 2014.10.27 12:14 I attest to the accuracy and authenticity of this document LPA No. 1588 of 2014 -6- of a property, has been illegally dispossessed, the District Magistrate has ample power under the Cr.P.C., to protect possession of such person. But the District Magistrate, in our opinion, cannot be empowered to evict a person, who is in possession of a property for a long time. Such person can be dispossessed by following due process of law. If the District Magistrate is permitted to summarily evict such person, it will cause great injustice to the person, who is in settled possession. He may be in possession under some right. In the present case, the appellant has already taken recourse to the civil court. His suit for eviction against his divorced wife and sons is pending. As noticed by the learned Single Judge, a divorced wife has a right of maintenance and right of residence. The divorced wife and sons of the appellants are seriously contesting the claim of the appellant before the civil court. The learned Single Judge has rightly observed that a divorced wife cannot be turned out of the house by the husband, because she has protection under the Protection of Women against Domestic Violence Act, 2005 (hereinafter referred to as `the Act of 2005'). Therefore, the provisions of the Act of 2007 and the Act of 2005 cannot be used for cross purposes, one annihilating the other. Thus, we do not find any wrong in the observation made by the learned Single Judge that the decision of this court in Justice Shanti Sarup Dewan's case (supra) is a decision given in the peculiar circumstances, which do not exist in the present case. In our opinion, in the facts and circumstances of the instant case, the direction DASS NAROTAM 2014.10.27 12:14 I attest to the accuracy and authenticity of this document LPA No. 1588 of 2014 -7- sought by the appellant has rightly been declined by the learned Single Judge. The appellant, at present, is pursuing his cause before the civil court. The proceedings of the civil suit pending between the parties should be expedited. We grant liberty to the appellant to move an appropriate application before the civil court praying for expedite disposal of his suit. If any such application is filed, we hope that the civil court will take care of the same and shall decide the said suit expeditiously, so that justice is done to both the parties.
In view of the above, we do not find any ground to interfere with the order passed by the learned Single Judge.
No merit. Dismissed.
( SATISH KUMAR MITTAL )
JUDGE
October 14, 2014 ( DEEPAK SIBAL )
ndj JUDGE
DASS NAROTAM
2014.10.27 12:14
I attest to the accuracy and
authenticity of this document