Delhi High Court
Pooja Mehta & Ors. vs Government Of Nct Of Delhi & Ors. on 28 September, 2020
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : 28.09.2020
+ W.P.(C) 7023/2020 & CM APPL. 23941/2020
POOJA MEHTA & ORS.
..... Petitioners
Through: Mr.Vijay Aggarwal, Mr.Naman
Joshi, Mr.Tarun Singla,
Mr.Mudit Jain, Ms.Samprikta
Ghosal, Ms.Barkha Rastogi,
Mr.Deepanshu Choithani,
Mr.Shailesh Pandey, Advs.
versus
GOVERNMENT OF NCT OF DELHI & ORS.
..... Respondents
Through: Mr.Gautam Narayan, ASC for
GNCTD for R-1 & R-2 with
Ms.Saumya Tandon, Adv.
Mr.Sandeep Sethi, Sr. Adv.
with Mr.Vaibhav Sethi, Adv.
for R-3 & R-4.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
1. This petition has been heard through video conferencing.
2. This petition has been filed by the petitioner praying for the
following relief:-
"A. Issue a writ of mandamus against the
Respondent Nos. 3-5 to restore the possession
of the Petitioners in the Shared Household as
existing till 20.09.2020 and direct the
W.P.(C) 7023/2020 Page 1
Respondent No. 2 to ensure that the
Respondent Nos. 3-5 do not obstruct or
disturb the Petitioners taking possession or
enjoying possession of the Shared Household;
B. Issue a writ of certiorari against the District
Magistrate (South), Delhi through the
Respondent No. 1, and quash and set aside
the Impugned Order dated 18.9.2020 and the
proceedings culminating in said Impugned
Order;
C. Issue a writ of mandamus direct the
Commissioner of Police, Delhi or a competent
person duly appointed by this Hon'ble Court
to enquire into the actions of the Respondent
No. 2's officials on 20.9.2020, including
physical and verbal abuse of law-abiding
citizens and acting in excess of statutory
mandate;"
3. Admittedly, the petitioners have been staying at the property,
being Sai Naman Asher Estate, Bandh Road, Gadaipur, Mehrauli,
New Delhi-110030, since atleast the year 2013. By an order dated
18.09.2020, on an application filed by the respondent nos. 3 and 4
herein, under the provisions of The Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 (hereinafter referred to as the
'Act') read with Rule 22(2) of the Delhi Maintenance and Welfare of
Parents and Senior Citizens Rules, 2009 (hereinafter referred to as the
'Rules'), the District Magistrate (South) in Case no. 47/2019 titled
Vijay Mehta and Anr. vs. Nanak Mehta and Anr. issued the
following directions:-
W.P.(C) 7023/2020 Page 2
"10. Using the powers entrusted to the
undersigned under the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 and Delhi
Maintenance and Welfare of Parents and Senior
Citizens Rules, 2009, the application moved by the
Petitioner is allowed and after examining all the
documents/reports placed before the undersigned, I
hereby order Sh. Nanak Mehta and Smt. Pooja
Mehta, to evict from the property of Sh. Vijay Mehta
and Smt. Manju Mehta, i.e. SAI NAMAN Asher
Estate, Kh No. 638, Bandh Road, Gadaipur,
Mehrauli, New Delhi, within 30 days from the date
of receipt of this order on the ground of ill-treatment
and threats made by them to the aged and hapless
Petitioners. Directions issued to the Respondent to
handover possession of the property to the
Petitioners so as to lead a peaceful and secured life
by the Petitioners. Deputy Commissioner of Police,
South District, New Delhi is also requested to
ensure implementation of the order in its true letter
and spirit in handing over the peaceful possession of
the property to the Petitioner by the Respondents.
Accordingly, the application of the Petitioners is
disposed of."
(Emphasis supplied)
4. It is not denied by the learned counsels for the respondents that
in execution of the above order, the petitioners were forcibly evicted
from the above premises on 20.09.2020.
5. Though a case was sought to be built up by the respondent nos.
3 and 4 on the first date of hearing, stating that the petitioners left the
W.P.(C) 7023/2020 Page 3
premises on their own volition, the same is clearly belied by a video
clip played by the learned counsel for the petitioners during the course
of the hearing, which has not been denied by the learned counsel for
the respondent no. 2, who admits that the eviction took place forcibly
through the intervention of the Delhi Police.
6. A reading of the above order dated 18.09.2020 clearly indicates
that 30 days' time from the date of receipt of the order was given to
the petitioners to evict from the property in question. The order,
therefore, was not executable on 20.09.2020, when it was unlawfully
executed by the respondent no. 2.
7. Rule 22(3)(4) of the Delhi Maintenance and Welfare of Parents
and Senior Citizens Rules, 2009 as amended, provides that an appeal
against the order of the District Magistrate shall lie before the Division
Commissioner. Rule 22(3)(3) of the Rules further provides the
procedure for the enforcement of the order passed by the District
Magistrate as under:-
(3)Enforcement of orders,
(i) If any person refuses or fails to comply with the order of
eviction within thirty days from the date of its issue, the Deputy
Commissioner/DM or any other officer duly authorized by the
Deputy Commissioner/DM in this behalf may evict that person
from the premises in question and take possession;
(ii) The Deputy Commissioner/DM shall have powers to enforce
the eviction orders through Police and the Dy. Commissioner of
Police concerned shall be bound to carry out execution of the
W.P.(C) 7023/2020 Page 4
eviction order.
(iii) The Deputy Commissioner/DM will further handover the
property/premises in question to the concerned Senior Citizen.
(iv) The Deputy Commissioner/DM shall forward monthly
report of such cases to the Social Welfare Department by 7th of
the following month.
8. Clearly, therefore, the action of the respondent no. 2 in the
present case was premature and completely unwarranted.
9. The learned senior counsel for the respondent nos. 3 and 4
submits that now that the petitioners have been evicted from the
property in question, they not be put back into possession and the said
respondents are willing to abide by any conditions put by this Court
for the said purpose. He further submits that the respondent nos. 3 and
4 are aged and fear for their life and well being. He submits that there
are various other police complaints also filed inter se between the
petitioners and the respondent nos. 3 and 4 and therefore, it would not
be a fit case for this Court to order the petitioners to be put back into
possession.
10. I am unable to agree with the submissions made by the learned
senior counsel for the respondent nos. 3 and 4. The respondent nos. 3
and 4 cannot gain out of an illegal act and equally, the petitioners
cannot be made to suffer the consequence of an unlawful act. The
parties have to be put back into the position where they were before
such unlawful act was committed.
W.P.(C) 7023/2020 Page 5
11. As noted hereinabove, admittedly, the petitioners have been
residing in the property in question since atleast 2013. As far as the
prayer of the respondent nos. 3 and 4 is concerned, the same can be
addressed by directing the respondent no. 2 to ensure that peace is
maintained by the parties during the period of the possession of the
property by the petitioners.
12. The learned counsel for respondent nos. 1 and 2 submits that the
said respondents took the action in question being guided by the
observations of the District Magistrate as recorded in paragraph 5, 6
and 9 and the beneficial intent of the legislation.
13. I am not persuaded with the said arguments as the law does not
permit the respondent to circumvent the law itself and take such
premature action.
14. In view of the above, the present petition is disposed of
directing that the petitioners would be entitled to be put back into
possession of property in question with immediate effect. The
Commissioner of Police shall hold an enquiry into the manner in
which the petitioners were forcibly evicted and incase it is found that
certain officers were guilty of dereliction of duty, appropriate action
be taken against them. The petitioners shall file an appeal challenging
the order dated 18.09.2020 of the District Magistrate, if so advised,
without awaiting the expiry of the limitation period and within a
period of two weeks from today. As and when such appeal is filed, the
same shall be expeditiously considered by the Divisional
Commissioner. The petitioner shall be entitled to pray for an order of
W.P.(C) 7023/2020 Page 6
interim protection during the pendency of the appeal before the
Divisional Commissioner, which shall also be considered by the
Divisional Commissioner in accordance with law. The parties should
also ensure peace in the integrum. The respondent no. 2 shall ensure
that peace is maintained between the petitioners and respondent no. 3
and 4 and take appropriate action if any complaint is received from
either party.
15. Though the learned counsel for the petitioner and the learned
senior counsel for respondent nos. 3 and 4 had made submissions on
merits of the disputes between the parties, this Court has intentionally
restrained itself from making any comment on the same. It is therefore
clarified that the appeal filed by the petitioners, if at all, shall be
considered by the Divisional Commissioner remaining uninfluenced
by any observation made in this order or the conduct of the parties
post 18.09.2020, leading up to passing of this order.
16. There shall be no order as to cost.
NAVIN CHAWLA, J
SEPTEMBER 28, 2020/rv
W.P.(C) 7023/2020 Page 7
