Bombay High Court
Sanjaya Rajendra Bende vs The State Of Maharashtra And Ors on 8 December, 2021
Bench: S. K. Shinde
31-WP-1694-21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1694 OF 2021
Sanjaya Rajendra Bende,
(Widow)
Age: 53 Years, Occ: Part Time-Job,
R/a. Flat No.8, Navmangal CHS Ltd.
ITI Colony, Kathe Galli, Nashik ... Petitioner
Vs
1 The State of Maharashtra
Through A.P.P. (High Court Mumbai)
2 Rambhau Alias Rajabhau Savalaram
Bende,
Age: 91 Years, Occ: Retired,
C/o. Rajesh Rambhau Bende,
Flat No.8B, B-Wing,
Chandravel Apartment,
Chowk No.1, Govind Nagar,
Mumbai Naka,
Nashik-422009 ... Respondents
...
Mr. Gurudas S. Gorwadkar for the Petitioner.
Mr. A.R.Patil , APP for the Respondent No.1-State.
Mr. Sandesh D. Patil i/by Sanket G. Telang for Respondent
No.2.
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CORAM : SANDEEP K. SHINDE J.
DATED : DECEMBER 08, 2021
P.C. :
1 This Petition assails the order dated 1st March, 2021
passed by the Maintenance Tribunal, under Section 5 of the
Maintenance and Welfare of Parents and Senior Citizens Act,
2007 ('Act' for short) whereby, the Tribunal, by mandatory
injunction directed her to vacate residential bungalow, more
partiularly described in the application and further restrained
her from obstructing and/or disturbing possession of the
respondent therein.
FACTS
2 Respondent No.2 is senior citizen, within the meaning
of Section 2(h) of the Act, and father-in-law of the petitioner.
He moved an application under Section 5 of the Act and sought
mandatory and prohibitory injunction against his, widowed
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daughter-in-law qua bungalow in question. Her husband had
expired in 2020. In the lifetime, petitioner's husband had
purchased two flats, in Nashik. These flats are in possession and
enjoyment of the petitioner. Whereas, bungalow, in question is
self-acquired property of the father-in-law. His case is, although
he asked daughter-in-law to vacate the bungalow and occupy
'flats' which were purchased by her husband, she did not
accede to his request. According to him, petitioner causes
actionable nuisance because of which he is unable to live and
enjoy in his own bungalow peacefully. In the circumstances,
application under Section 5 of the Act has been, allowed, by
granting mandatory and preventive injunction against her. This
order is assailed herein.
Jurisdiction to grant Injunction
3 Before adverting to the contentions, of the petitioner,
It may be noted that by series of judicial pronouncements, it is
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established that 'where any citizen, who after the
commencement of this Act, has transferred by way of gift or
otherwise, his property subject to the condition that the
transferee shall provide the basic amenities and basic physical
needs, to the transferor and such transferee refuses or fails to
provide such amenities and physical needs, the said transfer of
property shall be deemed to have been made by fraud or
coercion or undue influence and shall at the option of the
transferee, be declared void by the Tribunal. Thus, by necessary
implication, power of the Tribunal to declare the transfer as
void and restore ownership, includes the power to restore
possession of the property to the senior citizen .' In the case of
Mamta Sharma v. Additional Deputy Commissioner cum
Maintenance Tribunal and others 2020 SCC Online Punjab and
Haryana at Chandigarh 1901, the learned Judge of the Punjab
and Haryana Court held that 'it would be against logic and
common sense to say that while Tribunal has the larger power
under the Act to restore ownership and possession of the
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property but it does not have power only to evict senior
citizens' child or relative in illegal occupation of his property
and restore its possession to the senior citizen, which is a just
part of larger power to declare the transfer as void and restore
ownership including possession of the property to the senior
citizen.'
. Therefore, the mandatory and prohibitory order passed in
this case against the petitioner cannot be said to be without
jurisdiction.
4 Petitioner's contention before the Tribunal was that
her husband, during his lifetime had contributed in purchasing
bungalow in question and, therefore, it was not his exclusive
property. Thus, contended that, tribunal had committed an error
in granting mandatory and preventive injunction. Besides, it was
contended, that bungalow, in question is a 'Shared Household'
within the meaning of Protection of Women from Domestic
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Violence Act, 2005 ('PWDV Act, 2005' for short) and, therefore,
the Tribunal could not have evicted or passed mandatory and/or
prohibitory injunction against the petitioner. In support of this
contention, the learned counsel for the petitioner has relied on
the judgment of the Apex Court in the case of Smt. S. Vanitha
v. Deputy Commissioner Bengalaru, wherein the Apex Court
while harmonising competent reliefs under PWDV Act, 2005 and
Senior Citizens 2007 has held:
"A The above extract indicates that a significant
object of the legislation is to provide for and
recognize the rights of women to secure housing
and to recognize the right of a woman to reside
in a matrimonial home or a shared household,
whether or not she has any title or right in the
shared household. Allowing the Senior Citizens
Act 2007 to have an overriding force and effect in
all situations, irrespective of competing
entitlements of a woman to a right in a share
household within the meaning of the the PWDV
Act 2005, would defeat the object and purpose
which the Parliament sought to achieve in
enacting the latter legislation. The law protecting
the interest of senior citizens is intended to ensure
that they are not left destitute, or at the mercy of
their children or relatives. Equally, the purpose of
the PWDV Act 2005 cannot be ignored by a
sleight of statutory interpretation. Both sets of
legislations have to be harmoniously construed.
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Hence the right of a woman to secure a residence
order in respect of a shared household cannot be
defeated by the simple expedient of securing an
order of eviction by adopting the summary
procedure under the Senior Citizens Act 2007.
B "Therefore, in the event that a composite
dispute is alleged, such as in the present case
where the suit premises are a site of contestation
between two groups protected by the law, it
would be appropriate for the Tribunal constituted
under the Senior Citizens Act 2007 to
appropriately mould reliefs, after noticing the
competing claims of the parties claiming under
the PWDV Act 2005 and Senior Citizens Act 2007.
Section 3 of the Senior Citizens Act, 2007 cannot
be deployed to over-ride and nullify other
protections in law, particularly that of a woman's
right to a 'shared household' under Section 17 of
the PWDV Act, 2005. In the event that the
"aggrieved woman" obtains a relief from a
Tribunal constituted under the Senior Citizens Act,
2007, she shall duty-bound to inform to inform
the Magistrate under the PWDV Act 2005, as per
Sub-section (3) of Section 26 of the PWDV Act
2005. This course of action would ensure that the
common intent of the Senior Citizens Act 2007
and the PWDV Act 2005-of ensuring speedy relief
of its protected groups who are both vulnerable
members of the society, is effectively realized.
Rights in law can translate to rights in life, only
if there is an equitable ease in obtaining their
realization."
"C Even otherwise, we are clearly of the view
that recourse to the summary procedure
contemplated by the Senior Citizen Act 2007 was
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not available for the purpose of facilitating
strategies that are designed to defeat the claim of
the appellant in respect of a shared household. A
shared household would have to be interpreted to
include the residence where the appellant had
been jointly residing with her husband. Merely
because the ownership of the property has been
subsequently transferred to her in-laws (Second
and Third Respondents) or that her estranged
spouse (Fourth respondent) is now residing
separately, is no ground to deprive the appellant
of the protection that was envisaged under the
PWDV Act 2005."
. The learned counsel for the Petitioner, therefore,
argued that procedure contemplated under the Senior Citizens
Act, 2007, being 'summary' in nature, Tribunal could not have
defeated Petitioner's right in respect of 'Shared Household', i.e.,
Bungalow in question.
5 Be that as it may, herein the petitioner, has
instituted the proceedings under PWDV Act, 2005 against her
father-in-law, and others in the Court of Judicial Magistrate,
First Class, Nashik Road, Nashik being Criminal Miscellaneous
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Application No.178 of 2021. In the said proceedings on 1st
October, 2021, the learned Magistrate has granted ad-interim
relief to the petitioner and thereby protected her from occuping
the bungalow, i.e., 'Shared Household'. In Criminal
Miscellaneous Application, the petitioner has disclosed the order
passed by the Tribunal, as well as instant petition preferred by
her against the order of the Tribunal.
6 In consideration of the facts and circumstances of the
case, since petitioner's right in the shared household has been
taken care of in the DV proceedings, respondent no.2 herein,
who is also respondent in the DV proceedings shall appear in
that proceedings and may contest the claim of the petitioner in
the bungalow as her 'Shared Household'.
7 Hence, Rule.
(SANDEEP K. SHINDE, J.)
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