Back
IN THE HIGH COURT OF PUNJAB AND HARYANA
The Hon’ble Mr. Chief Justice Sanjay Kishan Kaul AND The Hon’ble Mr. Justice Augustine George Masih
Letters Patent Appeal No. 1007 of 2013 (O&M)
Justice Shanti Sarup Dewan, Chief Justice (Retired) & Anr.
v.
Union Territory, Chandigarh & Ors.
{Decided on 26/09/2013}
Senior Citizen--Protection of property--Writ Jurisdiction--State failed to make arrangements under the Act--Writ petition is maintainable under the Act and directions can be issued to fulfill obligations of the Act.
Senior Citizen--Protection of property—Parents should not be compelled to go civil court to obtain exclusive possession of the property from their children--This would defeat the very purpose of the Act which has an overriding effect qua any other enactment.
(A) Maintenance & Welfare of Parents & Senior Citizens Act, 2007, S.32(2)--Protection of Property--Dispute between father & son--Father contented that due to strained relations between them, his son should live separately in his other house--Dispute whether property is HUF property or self acquired--Held;
(i) Sale deed is registered in individual name of father.
(ii) It is not alleged that funds other than of father were utilized for purchase of said property.
(iii) At the best son can be held to be living there with permission of his parents.
(iv) Father should not be compelled to go civil court to obtain exclusive possession of the property--This would defeat the very purpose of the Act which has an overriding effect qua any other enactment.
(v) Son has only 20% share in property, even if for argument sake it is taken that property is HUF property--Whereas he is occupying first floor and part of ground floor--Only oblique motive is to grab whole property.
(vi) Son directed to vacate the property within 15 days.
We thus issue the following directions:-
i) The Administration of Union Territory, Chandigarh should forthwith take steps to bring into force proper rules under Section 32(1) of the said Act 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 said Act. This should include a comprehensive action plan including enforcement 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 said Act. Such action may be taken within one month from today.
ii) Respondent No. 7 and his family members are directed to vacate the property bearing House No. 642, Sector 11-B, Chandigarh to the extent it is occupied by them and the keys be handed over to appellant No.1 within a period of 15 days from today.
iii) The Senior Superintendent of Police of Union Territory, Chandigarh/respondent No.3 is directed to ensure enforcement of the direction (ii) mentioned above.
iv) If respondent No. 7 wants to establish any legal right or share in the aforesaid house, he is free to file appropriate civil proceedings but without infringing the exclusive rights of the appellants in the interregnum period implying that there would be no interim injunction qua occupation by the civil court as that would be a violation of the provisions of the said Act.
(B) Maintenance & Welfare of Parents & Senior Citizens Act, 2007, S.32--Protection of property of senior citizens--Writ Jurisdiction--State failed to make arrangements under the Act--Writ petition is maintainable under the Act and directions can be issued to fulfill obligations of the Act--Constitution of India, 1950, Art.226.
A proper mechanism for enforcement of the provisions of the said Act for protecting the property rights of the appellants under Section 22 of the said Act has not been put in place by the Union Territory Administration and enforcement would be a big issue--How and through which machinery can a Special Cell ensure the eviction of respondent No. 7 from the property so that the appellants can live in peace in their house? Can we say that the Courts would be powerless both in equity and law to enforce such an order when primacy has been given to the provisions of the said Act over all other law--The answer to these questions should be in the negative--If the State fails to perform the functions envisaged under an Act, it would certainly give rise to a jurisdiction to be exercised under Article 226 of the Constitution of India. (Para 39)
(C) Maintenance & Welfare of Parents & Senior Citizens Act, 2007, S.32--Protection of property of senior citizen--Writ Jurisdiction--The right of exclusive possession of a self owned property by a registered document of title can well be enforced under the provisions of the said Act by issuing appropriate directions in exercise of jurisdiction under Article 226 of the Constitution of India--Constitution of India, 1950, Art.226. (Para 40)
Mr. Sanjay Kishan Kaul, C.J.: - The filial affections of a father have cost him dearly in the twilight years of his life!
2. The appellant No.1 aged about 85 years is a retired Chief Justice of this Court while appellant No.2 is his wife aged about 74 years. The appellants have three progenies, one son and two daughters. The appellants’ elder son Suvir Dewan, aged about 49 years, a practicing Advocate of this Court, has been impleaded as respondent No. 7 herein. Suvir Dewan is married and has one daughter Shaina Dewan. The daughter of the appellant, namely, Joshita Budhraj is married to one Shri Sanjay Sen Budhraj having a daughter, namely, Nikita Budhraj. Their abode is Amritsar but they come to Chandigarh occasionally. Shri Sanjay Sen Budhraj is stated to be working in Punjab Council for Citrus and Agri. Juicing in Punjab and staying in a rented accommodation and Nikita Budhraj is staying with the appellants while pursuing her M.C.A. from Panjab University, Chandigarh. Third child of the appellants, namely, Sabina Grewal is married to Shri Harpreet Singh Grewal with a male child Udey Veer living in Auckland, Newzealand.
3. The cause of the dispute, as it often happens, is a property being House No. 642, Sector 11-B, Chandigarh, measuring 500 Sq. Yards, stated to have been purchased by appellant No.1 vide a Conveyance Deed dated 29.03.1962 in his own name. The Occupation Certificate was subsequently issued on 14.02.1967 by the Estate Officer (Capital Project), Chandigarh. It is the case of appellant No.1 that in the year 1980 he withdrew Rs.20,000/- from his G.P.Fund to make additions and alterations in that house and a fresh Occupation Certificate was thereafter issued on 11.09.1990.
4. In true Indian tradition where the worry of the parents often is to ensure financial stability for their progenies, the appellant No.1 bought a plot No. 694, Sector 6, Panchkula for the benefit of his son. The plot was transferred from appellant No.1 to respondent No. 7 vide re-allotment letter dated 30.11.1990. Respondent No. 7 is stated to have sold the plot to Smt. Raj Rani vide letter dated 07.11.1991 and from the proceeds purchased a shamlat plot No. 1016, Sector 2, Panchkula, measuring 350 sq. yards while utilizing the balance amount for construction on that plot. However, respondent No. 7 continues to live with the appellants in their house in Sector 11, Chandigarh.
5. It is quite apparent that relationships between the appellants and their son respondent No. 7 became strained. Infact, the relationship is very strained with the whole family of respondent No.7. Suffice to say that the case of the appellants is that they want to reside in their own house and would like respondent No. 7 and his family to stay in their own house at Panchkula.
6. In view of the strained relationships inter-se the parties, the appellants filed a Civil Writ Petition under Articles 226/227 of the Constitution of India seeking directions against respondents No.1 to 6 to create a special cell to deal with the complaints of senior citizens and parents who are traumatized by their children. Respondents No.1 to 6 are Union Territory, Chandigarh, Home Secretary and police officers. The appellants also seek a direction to ensure shifting of respondent No. 7 from their house at Chandigarh to his own house at Panchkula and vide an interim measure seek adequate police protection.
7. The appellants have given various incidents which have occurred in their house vis-à-vis their son. It is not necessary to go into the details of the same but suffice to say there is a fair amount of acrimony largely on account of the belief of the appellants that their Chandigarh house is to be inherited by their daughters too. The allegations are of humiliation, use of unparliamentary language, raising of voice and shouting, showing lack of all sense of decency, etiquette etc. and so on. The appellant No.1 claims to be paying all the expenses including electricity, water, sewerage
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
