examined the contention as to whether the District Magistrate is competent
to order eviction of an unauthorized occupant in terms of the provisions of
the Act.
Section 22 falling in Chapter V of the Act enjoins a duty upon
State Government to prescribe a comprehensive action plan for providing
protection of life and property of senior citizens. Section 32 (2) (f) also
empowers the State Government to frame Rules in respect of
comprehensive action plan for providing protection of life and property of
senior citizens. In terms of such provisions, the Rules have been framed
which causes a duty on the District Magistrate to ensure that the life and
property of senior citizens are protected and they are able to live with a
sense of security and dignity. Apart from framing such Rules, the Action
Plan for protection of life and property of the senior citizens has been
published which inter alia provides for eviction of unauthorized occupants
as reproduced above.
The petitioner is a licensee living in the premises on the basis
of concession given by his father to live in the property owned by him. As
a licensee, the petitioner is only permitted to enjoy the possession of the
property licensed but without creating any interest in the property. A
licence stands terminated the moment the licensor conveys a notice of
termination of a licence. There is no vested right of any kind in the licensee
to remain in possession of the property licensed. Admittedly, respondent
No.4 is the owner of the property in question. The petitioner is living in
part of the property. Such property owned by respondent No.4 is required
to be protected as mandated by Section 22 of the Act read with Rule 23 of
the Rules and para 1 of the Action Plan. There cannot be any effective
protection of property of the senior citizens unless the District Magistrate
has the power to put the senior citizen into possession of the property
and/or to restrain or eject the person who wishes to interfere in the
possession of the property of the senior citizen. Protection of the property
of a senior citizen includes all incidences, rights and obligations in respect
of property in question. Once a senior citizen makes a complaint to
District Magistrate against his son to vacate the premises of which the son
is a licensee, such summary procedure will enure for the benefit of the
senior citizen. The petitioner would have no right to resist his eviction
only on the ground that the Act does not contemplate eviction of an
occupant. Eviction is one part of the right to protect the property of a
senior citizen which right could be exercised by a senior citizen in terms of
provisions of the statute, Rules framed and the Action Plan notified.
The argument that civil suit is pending regarding the rights of
the petitioner in the property in question; therefore, the order of District
Magistrate is not legal does not merit any acceptance. Suffice it to state
that jurisdiction of the Civil Court is barred in respect of all matters falling
within the jurisdiction of the Act in terms of Section 27 thereof. Since, the
protection of life and property falls within the jurisdiction of the District
Magistrate, therefore, the District Magistrate is competent authority to take
steps for the protection of life and property of the senior citizen.
However, we may say that such summary exercise of the
jurisdiction is without prejudice to the rights of the parties which may be
determined by the Civil Court in accordance with law.
The argument that the order of eviction was ex parte, passed
without giving any opportunity of hearing is misconceived. Admittedly,
the petitioner was served with a notice. The petitioner has not appeared
before the District Magistrate assuming the said day to be non-working
day. Once the petitioner was served and has chosen not to appear on the
given date and time, the consequences have to be suffered by the petitioner
alone.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.24508 of 2015(O&M)
Date of Decision: 1.12.2015
Gurpreet Singh
V
State of Punjab and others .
CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA
HON’BLE MRS. JUSTICE SNEH PRASHAR
The challenge in the present writ petition is to an order passed
by the District Magistrate on 30.09.2015 ordering the petitioner to be
ejected from the house of respondent No.4 - Mohinder Singh within a
period of one month.
The brief facts out of which the present petition arises is that
the petitioner is son of respondent No.4 - Mohinder Singh staying in a
house measuring 124 square yards in which the petitioner, his wife and two
daughters are said to be residing in an area of 24 square yards. The
remaining portion is said to be in possession of father of the petitioner and
another brother of the petitioner.
The petitioner has alleged that the petitioner toiled hard in the
family and has been earning for the family out of which the house in
question was purchased in the year 1986. The father of the petitioner is
said to be not happy with the petitioner with the birth of his two daughters
and that the respondent started maltreating the wife of the petitioner. The
petitioner is said to be working in a Departmental Store of his father and
that a First Information Report was lodged against his father though it
resulted in acquittal. As per the petitioner, revision against the order of
acquittal is pending before this Court.
The petitioner asserts that respondent No.4 is living separately
happily with his other son and is in sound financial condition. Therefore, it
cannot be said that the father is emotionally neglected and there is lack of
physical and financial support. The petitioner asserts that litigation is
pending with regard to the small portion of the house which is in
occupation of the petitioner and his family which is pending in the Civil
Court. Respondent No.4 filed an application before the District Magistrate
in which the order has been passed without hearing the petitioner. The
petitioner applied for setting aside the ex parte order but the application
was returned.
The petitioner has challenged the order, inter alia, on the
ground that on 27.11.2014, the State Government has published an Action
Plan in terms of Rule 23 of The Punjab Maintenance and Welfare of
Parents and Senior Citizen Rules, 2012 (for short ‘the Rules’). The Action
Plan contemplates eviction from the residential building of the senior
citizens. It is contended that such provision of eviction is in exercise of the
excessive power of delegated legislation conferred on the State. Therefore,
the petitioner cannot be ordered to be ejected by the District Magistrate.
The Maintenance and Welfare of Parents and Senior Citizens Act,
2007 (for short ‘the Act’) was enacted for maintenance and welfare of
parents and senior citizens. Chapter II of the Act deals with maintenance
of parents and senior citizens; Chapter III of the Act deals with
establishment of old age homes; Chapter IV deals with the provisions for
medical care of senior citizen. It is Chapter V which is relevant which
deals with Protection of Life and Property of Senior Citizen.
The relevant provisions from Chapter V and VI of the Act
reads as under:-
“22. Authorities who may be specified for implementing the
provisions of this Act.-- (1) The State Government may, confer such
powers and impose such duties on a District Magistrate as may be
necessary to ensure that the provisions of this Act are properly carried
out and the District Magistrate may specify the officer, subordinate to
him, who shall exercise all or any of the powers, and perform all or any
of the duties, so conferred or imposed and the local limits within which
such powers or duties shall be carried out by the officer as may be
prescribed.
(2) The State Government shall prescribe a comprehensive action
plan for providing of life and property of senior citizens.
xx xx xx
27. Jurisdiction of civil courts barred.-- No Civil Court shall have
jurisdiction in respect of any matter to which any provisions of this Act
applies and no injunction shall be granted by any Civil Court in respect
of anything which is done or intended to be done by or under this Act.
xx xx xx
32. Power of State Government to make rules.-- (1) The State
Government may, by notification in the Official Gazette, make rules for
carrying out the purposes of this Act. CWP No.24508 of 2015 4
(2) Without prejudice to the generally of the foregoing power,
such rules may provide for-
(a) xx xx xx
(f) A comprehensive action plan for providing protection
of life and property of senior citizens under sub-section
(2) of section 22;
(g) Any other matter which is to be, or may be
prescribed.”
In term of provisions of Section 32 of the Act, the State
Government has framed “The Punjab Maintenance and Welfare of Parents
and Senior Citizen Rules, 2012”. The relevant Rules for the present writ
petition read as under:-
“22. Duties and power of the District Magistrate.--(l) District Magistrate
or any other officer authorized by him in this behalf within the local
limits of his jurisdiction shall perform the duties and exercise the powers
mentioned in sub rules (2) and (3), so as to ensure that the provisions of
the Act are properly carried out in his district.
(2) It shall be the duty of the District Magistrate to-
(i) ensure that life and property of senior citizens of the district
are protected and they are able to live with a sense of security
and dignity;
xx xx xx
(3) With a view to performing the duties mentioned in sub-rule (2), the
District Magistrate shall be competent to issue such directions, not
inconsistent with these rules, the Act and general guidelines of the State
Government, as may be necessary, to any Government and statutory
agency or body working in the district and especially to the following:-
(a) Officers of the State Government in the Police Department, Health
and Family Welfare Department, Information and public Relations
Department and the departments dealing with the welfare of senior
citizens;
(b) Maintenance Tribunal and the conciliation officers;
(c) Panchayats and Municipalities; and CWP No.24508 of 2015 5
(d) Educational Institutions.
xx xx xx
(5) In case of any danger to the life or the property of a senior citizens, it
shall be the duty of the District Magistrate or the officer authorized by
him to protect the senior citizen from the said danger.
xx xx xx
23. Action plan for the protection of life and property of senior
citizens.- An action plan, for protection of life and property of senior
citizens shall be notified by the State Government with in a period of six
months from the date of publication of these rules in the Official Gazette
and it may be revised from time to time.”
In terms of Rule 23 of the Rules, The State Government has
published Action Plan on 27.11.2014, the relevant extract from which
reads as under:-
“1. Procedure for eviction from property/ residential building of Senior
Citizens/ parent:
(i) xx xx xx
(iv) If the District magistrate is of opinion that any son or
daughter or legal heir of a senior citizens/ parents are in
unauthorized occupation of any property as defined in the
Maintenance and Welfare of parents and Senior Citizens Act,
2007, and that they should be evicted, the District Magistrate
shall issue in the manner hereinafter provided notice in writing
calling upon all persons concerned to show cause as to why an
order of eviction should not be issued against them / him / her.
2. Eviction Order from property/ residential building of Senior Citizens/
Parents:
(i) If, after considering the cause, if any, shown by any persons in
pursuance to the notice and any evidence he/she may produce in
support of the same and after giving him/ her a reasonable
opportunity of being heard, the District magistrate is satisfied
that the property/ premises are in unauthorized occupation, the
District magistrate or other office duly authorized may make an
order of eviction, for reasons to be recorded therein, directing
that the property/ residential building shall be vacated, on such
date, not later than 45 days from the date of receipt of such order,
as may be specified in that order, by all persons who may be in
occupation thereof, and cause a copy of the order to be affixed on
the outer door or some other conspicuous part of the public
premises;
(ii) The District magistrate may also associate NGOs/ Voluntary
organizations/ social workers working for the welfare of senior
citizens for the enforcement of order;”
We have heard learned counsel for the petitioner and
examined the contention as to whether the District Magistrate is competent
to order eviction of an unauthorized occupant in terms of the provisions of
the Act.
Section 22 falling in Chapter V of the Act enjoins a duty upon
State Government to prescribe a comprehensive action plan for providing
protection of life and property of senior citizens. Section 32 (2) (f) also
empowers the State Government to frame Rules in respect of
comprehensive action plan for providing protection of life and property of
senior citizens. In terms of such provisions, the Rules have been framed
which causes a duty on the District Magistrate to ensure that the life and
property of senior citizens are protected and they are able to live with a
sense of security and dignity. Apart from framing such Rules, the Action
Plan for protection of life and property of the senior citizens has been
published which inter alia provides for eviction of unauthorized occupants
as reproduced above.
The petitioner is a licensee living in the premises on the basis
of concession given by his father to live in the property owned by him. As
a licensee, the petitioner is only permitted to enjoy the possession of the
property licensed but without creating any interest in the property. A
licence stands terminated the moment the licensor conveys a notice of
termination of a licence. There is no vested right of any kind in the licensee
to remain in possession of the property licensed. Admittedly, respondent
No.4 is the owner of the property in question. The petitioner is living in
part of the property. Such property owned by respondent No.4 is required
to be protected as mandated by Section 22 of the Act read with Rule 23 of
the Rules and para 1 of the Action Plan. There cannot be any effective
protection of property of the senior citizens unless the District Magistrate
has the power to put the senior citizen into possession of the property
and/or to restrain or eject the person who wishes to interfere in the
possession of the property of the senior citizen. Protection of the property
of a senior citizen includes all incidences, rights and obligations in respect
of property in question. Once a senior citizen makes a complaint to
District Magistrate against his son to vacate the premises of which the son
is a licensee, such summary procedure will enure for the benefit of the
senior citizen. The petitioner would have no right to resist his eviction
only on the ground that the Act does not contemplate eviction of an
occupant. Eviction is one part of the right to protect the property of a
senior citizen which right could be exercised by a senior citizen in terms of
provisions of the statute, Rules framed and the Action Plan notified.
The argument that civil suit is pending regarding the rights of
the petitioner in the property in question; therefore, the order of District
Magistrate is not legal does not merit any acceptance. Suffice it to state
that jurisdiction of the Civil Court is barred in respect of all matters falling
within the jurisdiction of the Act in terms of Section 27 thereof. Since, the
protection of life and property falls within the jurisdiction of the District
Magistrate, therefore, the District Magistrate is competent authority to take
steps for the protection of life and property of the senior citizen.
However, we may say that such summary exercise of the
jurisdiction is without prejudice to the rights of the parties which may be
determined by the Civil Court in accordance with law.
The argument that the order of eviction was ex parte, passed
without giving any opportunity of hearing is misconceived. Admittedly,
the petitioner was served with a notice. The petitioner has not appeared
before the District Magistrate assuming the said day to be non-working
day. Once the petitioner was served and has chosen not to appear on the
given date and time, the consequences have to be suffered by the petitioner
alone. Still further, we find that eviction is sought to be resisted on wholly
untenable grounds even in the present writ petition.
Consequently, we do not find any merit in the present writ
petition.
Dismissed.
(HEMANT GUPTA)
JUDGE
DECEMBER 1, 2015 (SNEH PRASHAR)
‘D. Gulati’ JUDGE
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