Allahabad High Court
Jaiprakash Tiwari vs State Of U.P. And 8 Others on 28 June, 2021
Equivalent citations: AIRONLINE 2021 ALL 1848
Bench: Surya Prakash Kesarwani, Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 3 Case :- WRIT - C No. - 13336 of 2021 Petitioner :- Jaiprakash Tiwari Respondent :- State Of U.P. And 8 Others Counsel for Petitioner :- Krishna Kumar Chaurasia Counsel for Respondent :- C.S.C. Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Gautam Chowdhary,J.
Heard Shri Krishna Kumar Chaurasia, learned counsel for the petitioner and Shri B.P. Singh Kachwaha, learned Additional Chief Standing Counsel for the respondents.
The petitioner claims himself to be a senior citizen and has filed the present writ petition praying for the following relief :-
(i) Issue a writ, order or direction in the nature of mandamus directing the respondent no.2/ District Magistrate, Allahabad to decide the application dated 13.3.2021 filed Under Section 22(1)(3) of THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007 read with Rule 21(2)(1) Rule 22(1) Sub-Rule 2 and 3 of UTTAR PRADESH MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS RULES, 2014 within a specific period which may kindly be fixed by this Hon'ble Court.
(ii) Issue a wirt, order or direction in the nature of mandamus directing the respondent no.2/ District Magistrate, Allahabad to restrain respondent no. 6 to 9 from raising any construction further over the share of the petitioner.
(iii) Issue a writ, order or direction in the nature of mandamus directing the respondent no.2/ District Magistrate, Allahabad to provide security of life and property to the petitioner from respondent no. 6 to 9 and from the other anti social elements who are with the respondent no.6 to 9 at this time.
(iv) Issue a writ, order or direction in the nature of mandamus directing respondent no.5/ Station House Officer, P.S. Karchhana, Prayagraj not to interfere in peaceful possession of the petitioner by himself as well as by his agent in pursuance of the application filed Under Section 22(1)(3) of THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007 read with Rule 21(2)(1) Rule 22(1) Sub-Rule 2 and 3 of UTTAR PRADESH MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS RULES, 2014.
(v) to issue any other suitable writ, order or direction as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
(vi) to award the cost of this writ petition to the petitioner.
In his aforesaid application/ complaint dated 13.3.2021 submitted before the District Magistrate, Prayagraj, under Section 22(1)(3) of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as the Act, 2007) read with Rule 21(2)(i) Rule 21(1) Sub-Rule 2 and 3 of Uttar Pradesh Maintenance and Welfare of Parents and Senior Citizens Rules, 2014 (hereinafter referred to as the U.P. Rules), the petitioner has alleged that in the village abadi, there is an ancestral house which was owned by his father and is now occupied by him and his two brothers who all are residing in the same house and each brother has a share of 14 x 20 sq. ft. in the said house. But his brothers are trying to encroach over his share. The petitioner in the aforesaid complaint dated 13.3.2021 has prayed for protection of his life and property and to give him possession over that portion of the property which has been encroached by his brothers.
According to the petitioner, since no action has been taken by the District Magistrate, Prayagraj on his aforesaid complaint dated 13.3.2021, therefore the petitioner has filed the present writ petition praying for the aforenoted reliefs.
Learned counsel for the petitioner submits that life and property of the petitioner be protected and he be put in possession of that portion of the property which falls in his share.
Learned Additional Chief Standing Counsel submits on the basis of instructions that the said property was inspected by the Authorities and on 17.6.2021 action under section 107/116 Cr.P.C. was taken so as to ensure that breach of law and order does not take place. He further submits on the basis of instructions that the disputed property is an ancestral one in which the petitioner and his two brothers have undivided shares and partition has not yet taken place.
We have carefully considered the submissions of learned counsel for the parties and we find that an action under section 107/116 Cr.P.C. has already been taken by the State- respondents.
So far as the contention of the petitioner that he be put in possession in a particular portion of the disputed property is concerned, we find that such a matter shall not be covered by the provisions of Section 22(1) of the Act, 2007 read with Rule 21(2)(i) Rule 21(1) Sub-Rule 2 and 3 of the U.P. Rules, 2014. Such a dispute is pure and simple a dispute of share and possession of the disputed property which can be decided in a partition suit.
For the reasons aforestated, we do not find any good reason to grant relief as sought by the petitioner, inasmuch as the Act, 2007 does not confer power to the Authorities to decide partition dispute and share of parties in an immovable property. Admittedly, the disputed property is an ancestral property in which the parties have undivided share. Thus, the petitioner cannot ask for mandamus to the Authority under the Act, 2007 to put him in possession in a particular portion of the disputed property. Therefore, no mandamus as prayed, can be issued.
With the aforesaid observations and without expressing any opinion on the merits of the claim of the petitioner, the writ petition is dismissed leaving it open for the petitioner to avail such remedy as may be available to him under law.
Order Date :- 28.6.2021/ shiv