DANISH SANDHU Vs. DEPUTY COMMISSIONER-CUM-DISTRICT MAGISTRATE

JUDGEMENT

(1.) Rakesh Kumar Jain, J. (Oral) - This petition is filed for quashing the order passed by the Deputy Commissioner-cum-District Magistrate, Chandigarh dated 15.12.2016, purported to have been passed on an application filed by respondent No. 2 under Sections 22 & 23 of the Maintenance & Welfare of Parents and Senior Citizens Act, 2007 [for short 'the Act'] read with section 19 of the Chandigarh Maintenance & Welfare of Parents and Senior Citizens Rules, 2009 [for short 'the Rules'] seeking to evict the petitioners from the 50% share of House No. 165, Sector 18A, Chandigarh, which has been allowed by the Deputy Commissioner-cum-District Magistrate, Chandigarh directing petitioner No. 2 to take possession of back portion of the said house. It was also directed that respondent No. 2 will bear expenses of temporary wooden partition to be constructed in between drawing room and lobby door between front side bed room and lobby will be locked from both sides. Petitioner No. 2 was allowed to retain the front portion of the house.

(2.) Learned counsel for the petitioners has submitted that the impugned order dated 15.12.2016 could not have been passed on an application filed both under Sections 22 and 23 of the Act as different authorities have been provided under the Act to decide the said applications. It is submitted that if the application under Section 22 of the Act is filed then the District Magistrate would have the jurisdiction to decide but if the application is filed under Section 23 of the Act then it would be decided by the Tribunal. It is also submitted that even if it is presumed that the application has been filed under Section 22 of the Act, even then it could not have been filed against the petitioners in view of Rule 20(3)(1)(iv) of the Rules because the said application was maintainable only against the son, daughter and legal heir whereas the petitioner No. 2 is not the daughter or legal heir of respondent No. 2, who happens to be her beth (brother-in-law). It is also submitted that the application under Section 22 of the Act is not filed on the ground that respondent No. 2 himself requires the property as in the application filed before the District Magistrate, it is specifically mentioned that he is presently residing at Ludhiana and the eviction is being sought only on the ground that the half portion of the property which came to the share of his younger brother has been occupied by the petitioners herein whereas the younger brother and his mother have shifted to a flat. It is also submitted by learned counsel for the petitioners that there is a past history of this case as the relations of petitioners No. 2 is not cordial with her husband and she had already filed a complaint on 8.9.2015 under section 12 of the Protection of Women From Domestic Violence Act, 2005 and petitioner No. 1 filed a civil suit through petitioner No. 2 for declaration seeking the ancestral property after the death of his grand-father, which is pending and the mother-in-law of petitioner No. 2 had also filed an application under the Act for seeking eviction of the petitioners but the said application was dismissed on 7.4.2016 on the ground that she was not the owner and thereafter the present application has been filed by the Jeth. It is thus submitted that the entire exercise on the part of respondent No. 1 smacks of mala fide as there is a concerted effort on the part of the respondents to harass the petitioners for one reason or the other.

(3.) On the other hand, learned counsel for respondent No. 2 has submitted that the house in question was purchased by both the brothers, namely, respondent No. 2 and the husband of petitioner No. 2 by way of registered sale deed and thus by way of family settlement arrived at on 25.7.2015 divided the property to the extent of 50% share each. It is further submitted that earlier the mother of respondent No. 2 was also living with the petitioners in the house in question but later on she shifted to a flat where husband of respondent No. 2 is also residing at present. He has also submitted that there is no intention on the part of respondent No. 2 to dispossess the petitioners from the house in question rather he is only asking for the share which he owns by way of sale deed so that he may also enjoy the property purchased by him. It is not denied that the application was filed both under Sections 22 and 23 of the Act. It is submitted that Section 22 of the Act protects the life and property of the senior citizen and Section 23 of the Act retrieves the property given to a person even as a licensee. In this regard his main reliance is on the decision of this Court rendered in the case of "Promil Tomar and others v. State of Haryana and others" 2014(1) LAR 246.