Harbans Singh Pathania vs State Of Punjab And Others
2022 Latest Caselaw 10334 P&H

       IN THE HIGH COURT OF PUNJAB AND HARYANA
                    AT CHANDIGARH

211
                                  CWP No.13338 of 2020 (O&M)
                      DATE OF DECISION: 05th SEPTEMBER, 2022

Harbans Singh Pathania
                                                            .... Petitioner
                                   Versus
State of Punjab and others
                                                          .... Respondents


CORAM : HON'BLE MR. JUSTICE RAJBIR SEHRAWAT

Present :   Mr. R.K. Arya, Advocate for the petitioner.

            Mr. Sandeep, Addl. Advocate General, Punjab.

            Mr. Ankit Grewal, Advocate for
            Mr. Vaibhav Jain, Advocate for respondent No.3.

                                    ****
RAJBIR SEHRAWAT, J. (Oral)

This is a petition filed under Articles 226/227 of the

Constitution of India seeking issuance of a writ, order or direction

especially in the nature of Certiorari for quashing of order dated

30.01.2020 (Annexure P-3) passed by respondent No.2.

A bare perusal of the impugned order shows that the sole

reason given by the Authority below is a decision of this Court rendered

in the case of Simrat Randhawa Versus State of Punjab and others,

CWP No.4744 of 2018, decided on 23.01.2020. However, the Division

Bench of this Court in the case of Gurpreet Singh Versus State of

Punjab, 2016 (1) R.C.R. (Civil) 324 and in the case of Smt. Raksha Devi

Versus Deputy Commissioner-cum-District Magistrate, Hoshiarpur and

others, CWP No.5086 of 2016, decided on 03.05.2018, have already

upheld the rights of Senior Citizen to get eviction either by way of

1 of 4

CWP No.13338 of 2020 (O&M)

protection of his property under the scheme prepared under Section 22 of

the Maintenance and Welfare of Parents and Senior Citizens Act, 2007

(for short, the Act) or by way of cancellation of the transfer in terms of

Section 23 of the Act. Therefore, the application filed by the Senior

Citizen could not have been rejected by the Authority below as per the

law laid down by two separate Division Benches in the above said cases.

Although, the Authority below has relied upon the judgment

in Simrat Randhawa (supra), however a perusal of the said judgment

shows that the said two Division Benches judgments have been

mentioned in the judgment rendered in the case of Simrat Randhawa

(supra), however, instead of following the same, the learned Single Judge

has shown some disagreement with the judgment passed by the Division

Bench on the ground of the case being decided by the Division Bench in

limini and on the basis of the Govt. of India having filed some affidavit

to explain the intention behind the provisions of the Act, and further, by

observing that the Division Benches did not have the benefit of the kind

of arguments which were raised before the learned Single Judge in

Simrat Randhawa case (supra). However, none of these grounds could

have been a ground not to follow the decision of the Division Benches.

Needless to say that the Single Bench in Simrat Randhawa (supra) case

has not held that the judgments passed by the Division Benches did not

constitute a precedent because of being per-incurium or being suffering

from sub-silentio. There is not even a pretention to distinguish the

judgments of Division Benches on the facts of the cases. It is a plain and

simple attempt at disagreement on the grounds mentioned above.

However, in the humble view of this Court, even if some authority is

2 of 4

CWP No.13338 of 2020 (O&M)

conceded in favour of the Single Bench to disagree with the Division

Benches, still the reasons given by the Single Bench inspire no

justification. Once the Division Bench had put a particular construction

upon the provisions of the Act and the action plan of the State; by

specifically noting the provisions and interpreting the same, then there

was no scope left for not following the same only for the reason that such

a judgment was passed by the Division Bench without issuing notice to

the other side. Similarly, availability of some perceivingly better

assistance from a lawyer through his more potent agreement; can also not

be a ground to discard the earlier judgment of the Division Benches on

the same legal aspect. Statedly better assistance, which could lead the

Court to a possible different conclusion; may have provided an

opportunity to the Single Bench to refer the matter for reconsideration by

the Division Bench, but not for any disagreement with the judgment of

the Division Bench at its own level; and to push the judgment of the

Division Bench towards legal oblivion. Even the affidavit of the Central

Government could not have been used by the Single Bench as an external

aid for the purpose of construction of the provisions of the Act and for

finding the intention of the legislation. If affidavit of the government of

the day is taken as a valid & external tool for construction of statute and

for finding intention of legislator then such a construction and intention

runs the risk of undergoing metamorphosis every five years or so. Aspect

of uncertainty involved in use of such a tool itself is sufficient to discard

such an affidavit as an external aid in construction of statutes. Rather the

appropriate Rule of construction to be applied in case of the present Act

is the 'Mischief Rule' which would tend to suppress the mischief which

3 of 4

CWP No.13338 of 2020 (O&M)

was sought to be remedied by the Act and would enhance the remedy

available to the Senior Citizen under the Act. Precisely, this was the

construction put in both the decisions of the Division Benches mentioned

above. Therefore, the judgments passed by the Division Benches,

obviously, were binding upon the Single Bench, leaving no scope for

showing any disagreement.

In view of the above, following the judgments passed by the

Division Benches of this Court in the cases of Gurpreet Singh (supra)

and Smt. Raksha Devi (supra), the present petition is allowed. The

petition filed by the petitioner before the District Magistrate is ordered to

be allowed. Accordingly, the petitioner shall be free to obtain possession

of the property mentioned in the present case.

However, it is clarified that the respondent No.3-daughter-

in-law of the petitioner would not be precluded from exercising her rights

under the Protection of Women from Domestic Violence Act, 2005, but

in accordance with law, by invoking the competent authority under the

said Act. To the extent, the rights of respondent No.3, if any, and as and

when determined by the authorities under the Protection of Women from

Domestic Violence Act, 2005, the order passed by this Court in favour of

the petitioner shall be treated as ineffective.

The pending miscellaneous application, if any, is also

disposed of as such.

05th SEPTEMBER, 2022                              (RAJBIR SEHRAWAT)
'sandeep'                                               JUDGE


      Whether speaking/reasoned:                  Yes       No
      Whether Reportable:                         Yes       No


                                4 of 4