NEERAJ BHAS Vs. DIVISIONAL COMMISSIONER, DELHI

JUDGEMENT

(1.) This writ petition has been preferred assailing the validity of an order passed by the Divisional Commissioner acting as the Appellate Authority under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 ['the Act'] rejecting an application for stay made in a pending appeal instituted by the petitioner.

(2.) The Appellate Authority has while passing the impugned order taken note of the submission that as per a will executed in favor of the senior citizen, the suit property stands in her name. The order further refers to a family settlement in respect of which the Appellate Authority has observed that the respondent has refused to accept that settlement and that issues pertaining to the same are pending trial before the competent Civil Court. It has further taken note of the fact that the petitioner appellant has his own property and as such no irreparable harm will be caused to him if he is asked to shift from the property in question.

(3.) Assailing the order impugned, Mr. Airi, learned Senior Counsel appearing in support of the petition, submitted that once the appeal had been entertained, it was imperative for the Divisional Commissioner to provide interim protection to the petitioner and place the order of eviction in abeyance since a refusal to do so would render the filing of the appeal itself otiose. It was contended that the petitioner had proceeded further in terms of the family settlement which had been duly signed by the second respondent and thus handed over the possession of a property standing in his name in Sukhdev Vihar to his estranged wife. It was contended that the right of residence as claimed by the petitioner not only flowed from that settlement, but it was also clearly protected in terms of that arrangement. It was pointed out that the aforesaid exchange of properties as a consequence of which the estranged wife moved out from the property in dispute and took up residence at Sukhdev Vihar was consequential to the family settlement which had been entered into and which in turn formed the basis for a settlement arrived at before the Mediation Centre between the petitioner and the third respondent. Mr. Airi submitted that the family settlement had never been disputed by the respondent Nos. 2 and consequently, the Divisional Commissioner clearly erred in refusing to accord interim protection. Learned Senior Counsel also submitted that the second respondent had sought to set up a case based on a will which was yet to be probated and, in any case, the said disposition forms subject matter of separate civil proceedings. In view of the above, it was contended that the impugned order is liable to be set aside.