Bombay High Court
Anam Subhash Pandey vs State Of Maharashtra And 2 Ors on 5 September, 2022
Bench: C.V. Bhadang
2-wp-1010-2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1010 OF 2022
Anam Subhash Pandey ...Petitioner
V/s.
State of Maharashtra and Ors. ...Respondents
----
Digitally signed by
Mr. Atul Rajadhyaksha, Sr. Counsel a/w. Mr. Akhilesh Dubey,
NILAM
Vagish Mishra and Varad Dubey i/b. Law Counsellors, for the
NILAM SANTOSH
SANTOSH KAMBLE
Date: 2022.09.06
KAMBLE 10:50:45 +0530
Petitioner.
Mrs. P. H. Kantharia GP a/w. L. T. Satelkar, AGP for the
Respondent No.1 / State.
Mr. Kunal Bhanage a/w. Mr. Akshay and Akhil Sarathy a/w. Raj
Dani i/b. Thodur Law Associates, for the Respondent No.2.
Mrs. Tauban Irani a/w. Ms. Sachi Lodha, for the Respondent
No.3.
----
CORAM : C.V. BHADANG, J.
RESERVED ON : 3 AUGUST 2022
PRONOUNCED ON : 5 SEPTEMBER 2022
P.C.
. The challenge in this Petition is to the order dated 20
January 2021 passed by the Presiding officer, Maintenance and
Welfare of Parents and Senior Citizens Tribunal ('Tribunal' for
short) in SR No.71 of 2020. By the impugned order the learned
Tribunal has directed the Petitioner (Original Respondent) to
vacate the suit flat and has further restrained the Petitioner from
obstructing or interfering the second respondent (Original
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Applicant) operating from his Office premises situated at Andheri
(West).
2. The brief facts necessary for the disposal of the
Petition may be stated thus :-
Flat No.A-1503, Bianca Yari Road, Andheri (W),
Mumbai and the Office premises bearing No.605 Shreekrushna
Premises Co. Op. Society, New Link Road, Andheri (W),
Mumbai, are the subject matter of dispute and herein after
referred to as Suit Flat/Office.
3. The Respondent Nos.2 and 3 are the parents of the
Petitioner. The Petitioner is their only child. The third
Respondent is estranged wife of the second Respondent and there
is long standing matrimonial dispute between them. The second
Respondent is an Ex-MLA/EX-Cabinet Minster in the Uttar
Pradesh Government. There is a dispute between the Petitioner
and his father which has led the second Respondent to approach
the Tribunal under Section 4 and 5 of the Maintenance and
Welfare of Parents and Senior Citizens Act, 2007, for the relief of
eviction of the Petitioner from the suit flat. The Second
Respondent sought an order preventing the Petitioner and his
wife from obstructing the second Respondent from operating
from and/or using the suit Office Premises.
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4. The contention on behalf of the second Respondent
is that the suit flat is purchased by him and is standing in his
name where the third respondent is presently residing. The
second Respondent claimed that the Petitioner and his second
wife has no right to stay in the suit flat or to obstruct the
Petitioner from using the Office Premises. The second
Respondent has made allegations about he being ill treated at the
hands of the Petitioner, as a result of which he was required to
leave the flat on 18 May 2018. However, when the second
Respondent returned to the suit flat on 28 May 2018 he was not
allowed to enter and has been forcibly driven out from the suit
flat and there is also obstruction in the matter of the user of the
office premises.
5. It may be mentioned that the two establishments
namely Shangrila LLP and Shangrila Communication LLP are
said to be operating from the suit office premises. It may be
further mentioned that the Petitioner and the Respondent Nos.2
and 3 are the partners in the two partnership firms.
6. The Petitioner filed a reply and resisted the
Application on various grounds. It was contended that the
Application as framed and filed is not maintainable, inasmuch as
the summary remedy provided under the 2007 Act is to the
parents/Senior Citizens who are living in penury and are unable
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to maintain themselves. It is submitted that the Second
Respondent is affluent and his worth is more than 180 Crores and
he is holding several properties in Uttar Pradesh and one other
flat at Mumbai and thus cannot maintain an Application under
the provisions of the 2007 Act. It is submitted that the Second
Respondent has ill treated both Petitioner as well as his mother
that is Respondent No.3 and the Petitioner is presently staying
with his mother in the suit flat as she needs support, inasmuch as
the third Respondent is also a Senior Citizen and since long
suffering from depression and anxiety and needs support of the
family members. It is submitted that the eviction of the
Petitioners is sought with a view to coerce the third Respondent
to leave and vacate the suit flat.
7. The third Respondent intervened before the Tribunal
and reiterated the allegations of ill treatment at the hands of the
Respondent No.2. It was contended that she is presently residing
in the suit flat with the support of the Petitioner, and only with a
view to see that she is rendered without any support and
compelled to leave the flat that the eviction of the Petitioner has
been sought.
8. It was contended that the third Respondent had filed
a complaint under the Protection of Women from Domestic
Violence Act, 2005 ('Domestic Violence Act' for short) against
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the second Respondent (Applicant before the Tribunal) on 27
October 2020 and as a counter blast to the said complaint, the
Application was made before the Tribunal on 12 November
2020. She therefore claimed that the Application be rejected.
9. The Tribunal, after hearing the parties, came to the
conclusion that the second Respondent was subjected to ill
treatment by the Petitioner on account of the fact that the second
Respondent was required to leave the suit flat in the twilight years
of his life. The Tribunal found that the Petitioner while
supporting his mother has not cared for his father i.e. second
Respondent. The Tribunal refused to accept that the second
Respondent had committed any acts of ill treatment inasmuch as
the complaint filed by the third Respondent under the Domestic
Violence Act was pending. The Tribunal also found that insofar
as the family/ancestral properties are concerned the parties are
required to obtain appropriate redressal before the Competent
Civil Court. However, the Petitioner could not have taken law in
his own hands thereby preventing the second Respondent from
using the suit flat/office.
10. The Tribunal placing reliance on the decision of this
Court in Dattatrey Shivaji Mane V/s. Lilabai Shivaji Mane &
Ors.1 has allowed the Application by directing the eviction of the
Petitioner from the suit flat and restraining him from preventing
1 AIR 2018 BOM 229
N.S. Kamble page 5 of 20
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the second Respondent from using/operating from the suit office
premises. Feeling aggrieved the Petitioner is before this Court.
11. I have heard the learned counsel for the parties. With
the assistance of the learned counsel for the Parties I have gone
through the record.
12. Mr.Rajadhyaksha, the learned Senior Counsel for the
Petitioner has strenuously urged that the Application as framed
and filed under the provisions of the 2007 Act was not
maintainable, inasmuch as the second Respondent, is an affluent
and well to do person. It is pointed out that he was an Ex-MLA
and Ex-Cabinet Minister in the State of Uttar Pradesh and has
several properties with him. The learned counsel in this regard
referred to the assets of the second Respondent. It was pointed
out that in the Application before the Tribunal, the second
Respondent has specifically claimed that he is not seeking
maintenance. He therefore, submitted that the Application was
not maintainable under the 2007 Act as the object and purpose
of the framing of the said Act and providing for a summary
remedy before the Tribunal is to provide maintenance and
support to the Senior Citizens/parents who are unable to
maintain themselves and are living in penury. The learned Senior
Counsel referring to the order passed by this Court on 8 October
2020 in Writ Petition Lording No.3162 of 2020 (filed by the
N.S. Kamble page 6 of 20
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second Respondent) has submitted that the Division Bench of
this Court has already held that neither of the parties are living in
penury and therefore had refused to entertain the Petition for
similar reliefs.
13. It is submitted that the Application filed by the
second Respondent before the tribunal is not bona fide and is
only with the ulterior motive to harass the third Respondent-wife
and to see that she is rendered without any support. It is
submitted that the third Respondent is also a senior citizen and
has a long standing history of depression and anxiety and needs
support. He therefore, urged that the second Respondent is
attempting to evict the third Respondent under the garb of
evicting the Petitioner. He therefore, submitted that the Tribunal
was in error in granting the relief.
14. On behalf of the Petitioner reliance is placed on the
decision of this Court in Writ Petition Lodging No.3509 of 2019,
Ranjana Rajkumar Makharia V/s. Mayadevi Subhkaran Makharia
& Ors.2 and the decision of the Supreme Court in S.Vanitha V/s.
Deputy Commissioner Bengaluru Urban Districts and Others3.
15. The learned counsel for Respondent No.3 has
supported the Petitioner. It is submitted that the Application
2 Decided on 24-02-2020 in WPL No.3509/2019
3 2020 SCC Online SC 1023
N.S. Kamble page 7 of 20
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before the Tribunal is in the nature of a counter blast to the
complaint filed by the third Respondent under the Domestic
Violence Act. It is submitted that the Respondent No.3 was
subjected to severe physical and mental ill treatment by the
second Respondent over a long period of time and filing of the
complaint is yet another attempt to harass and coerce her to leave
the suit flat as she cannot stay alone without the support of the
Petitioner. The learned counsel therefore submitted that although
the second Respondent is claiming that he has no objection for
the third Respondent to stay in the suit flat, the real intention is
to see that the third Respondent is coerced/compelled to leave the
flat for want of support of the Petitioner. There are several
allegations made against the second Respondent about his alleged
extra marital affairs with several ladies during the course of their
matrimonial dispute.
16. The learned counsel for second Respondent has
submitted that the suit flat is admittedly owned by the second
Respondent alone in which the third Respondent who is his wife
is staying. It is submitted that the second Respondent has
provided all the necessities and luxuries of life to the Petitioner
and is a partner in the two limited liabilities partnership (LLP's)
from which the Petitioner is receiving substantial income. It is
submitted that the Petitioner has re-married and is staying in the
suit flat along with his second wife and as a result of the same the
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second Respondent has been driven out of the suit flat and
prevented from using suit office premises peacefully.
17. The learned counsel has pointed out that the 2007
Act is not only for the purpose of providing Maintenance but also
Welfare of the parents and senior citizens. It is submitted that
welfare as defined under the Act includes "other amenities",
necessary for the senior citizens. In the submission of the learned
counsel even the 'maintenance' as defined under Section 2(b) of
the Act would take into its ambit the general welfare and security
of Senior Citizens/parents and thus a narrow/restricted, meaning
cannot be placed on the aspect of maintenance and welfare
looking to the general object and purpose of framing of the 2007
Act. He submitted that there are decisions holding the field that
under the provisions of the Act even eviction can be ordered in
an appropriate case.
It is submitted that the Respondent No.2 is presently
required to take shelter at the house of his brother Prakash Pande
staying at B-104, Indralok Apartment, Andeheri (w), Mumbai.
18. On behalf of the second Respondent reliance is
placed on the decision of this Court in Dattatrey Shivaji Mane
V/s. Lilabai Shivaji Mane & Ors, Ashish Vinod Dalal and Others
V/s. Vinod Ramanlal Dala & Ors.
N.S. Kamble page 9 of 20
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19. The learned counsel for the Second Respondent
submitted that the decision of the Supreme Court in S. Vanitha
(Supra) turned on its own facts, inasmuch as in that case the
eviction of a daughter-in-law was ordered from the matrimonial
home unlike in the present case where the Petitioner who is the
son of the second Respondent has no title or interest in the suit
flat. He therefore, urged that the Petition be dismissed.
20. I have given my anxious consideration to the rival
circumstances and the submissions made. It is not in dispute that
the second Respondent who is an Ex MLA and Ex-Cabinet
Minister in the State of Uttar Pradesh is otherwise a well to do
person. The Second Respondent has made it clear that he is not
seeking any maintenance before the Tribunal. The only
contention raised is that the Petitioner has no right to stay along
with his second wife in the suit flat or to obstruct the second
Respondent from using or operating from the office premises. In
this case there are serious allegations and counter allegations
made by the parties against each other. Thus, while the second
Respondent claims that he has been ill treated and harassed at the
hands of the Petitioner, the Petitioner and the third Respondent
have leveled serious allegations, extra marital affairs and severe
physical and mental ill treatment to the third Respondent during
the course of the marriage.
N.S. Kamble page 10 of 20
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21. It is a matter of record that after the third Respondent
had filed a complaint under the Domestic Violence Act, the
second Respondent approached the Tribunal with a relief for
eviction of the Petitioner. It has come on record that the third
Respondent has a longstanding history of suffering from
depression and anxiety and needs support. It was submitted on
behalf of the Petitioner that the second Respondent visits
Mumbai, not more than twice a month, and thus the eviction of
the Petitioner from the suit flat is not necessary or justified.
22. The moot question in this case is whether the second
Respondent could have taken resort to the summary remedy of an
Application before the Tribunal under the 2007 Act.
23. The nature, the object and the purpose of framing of
the 2007 Act has been subject matter of several decisions. A bare
perusal of the statement of objects and reasons of the Act would
show that after referring to the traditional norms and values of
the Indian Society which laid stress on providing care for the
elderly, the legislature has noticed that due to withering of the
joint family system, a large number of elderly persons are not
being looked after by their family. Consequently, many older
persons, particularly widowed women are now forced to spend
their twilight years all alone and are exposed to emotional neglect
and lack of physical and financial support. It can thus be seen
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that the object of the Act is to ensure that the Senior
citizens/parents are not left without physical or financial support.
24. The statement of object and reasons further refers to
the fact that although there are provisions for the parents to claim
maintenance under the Code of Criminal Procedure, 1973, the
procedure is both time-consuming as well as expensive and
therefore, there is a need to have simple, inexpensive and speedy
provisions "to claim maintenance for parents".
25. The Act therefore, proposes to cast an obligation on
the persons who inherit the property of their aged relatives to
maintain such aged relatives and also proposes to make
provisions for setting-up old age homes for providing
maintenance to the "indigent elder person".
26. Lastly, the Act proposes to provide better medical
facilities to the senior citizens and provisions for protection of
their life and property. The Bill, therefore, proposes to provide
for :-
"(a) appropriate mechanism to be set-up to provide
need-based maintenance to the parents and senior
citizens;
(b) providing better medical facilities to senior
citizens;
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(c) for institutionalization of a suitable mechanism
for protection of life and property of older persons;
(d) setting-up of old age homes in very district.
27. It can thus be seen that the Act aims at providing
maintenance and welfare of the parents and senior citizens.
Section-2(b) defines 'maintenance' to include provision for food,
clothing, residence and medical attendance and treatment; while
Section 2(k) defines 'Welfare' to mean provision for food, health
care, recreation centers and other amenities necessary for the
senior citizens.
28. A useful reference at this stage may be made to the
decision of this Court in Ranjana Rajkumar Makharia V/s.
Mayadevi Subhkaran Makharia & Ors.4. The Petitioner therein
was the daughter-in-law of Respondent No.1 and wife of
Respondent No.2, Respondent Nos.3,4 and 5 were brothers-in-
law of the Petitioner. In that case the Tribunal by the
impugned order had directed the Petitioner as well as her
husband (Respondent No.2) to vacate and handover the peaceful
possession of the suit flat and arrange their own housing in
future.
29. This Court inter alia held that an Application for
recovery of possession, except on the footing that such recovery is
4 AIR-2020-BOM-165
N.S. Kamble page 13 of 20
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necessary as a measure of maintenance for the Applicant-Senior
Citizen is clearly not maintainable under Sections 4 and 5 of the
act. This is what is held in paragraph No. 9 of the judgment.
"9. If one has regard to the application of
Respondent No.1 before the tribunal, there is indeed
no case that the applicant, as a senior citizen, is
unable to maintain herself from her own earning or
out of the property owned by her. The application
does not proceed on the footing that it has been the
obligation of Respondent No.2 as her son or the
Petitioner as her daughter-in-law to maintain her so
that she, as a senior citizen, may lead a normal life.
The application is premised more on the alleged acts
of cheating and harassment by the Petitioner and also
by the other Respondents including Respondent
Nos.3,4 and 5, who are the other children of
Respondent No.1, and not by Respondent No.2
(husband of the Petitioner herein). Curiously
enough, though equally serious allegations have been
made against the other Respondents (Respondent
No.3,4 and 5) as the Petitioner herein, the only relief
claimed in the application has been against the
Petitioner and Respondent No.2; the application
restricts itself to only recovery of possession of the
suit flat occupied by the Petitioner and Respondent
No.2. Any such application for recovery of
possession, except on the footing that such recovery
is necessary as a measure of maintenance for the
applicant senior citizen, is clearly not maintainable
under Sections 4 or 5 of the Act."
30. This Court after noticing the decision of the Division
Bench in Shrikant Devdas Naik V/s. The state of Maharashtra 5,
5 WPL No.3373 of 2019, decided on 16 December 2019
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Shamim Sayeed Khan V/s. Sayeed Rasheed Khan6 and Pritish
Natvar Sanghvi V/s. Natvar Keshavlal Sanghvi7, has found a
claim for maintenance is essential in such cases.
31. In paragraph 14 this Court has found that from the
very basic issue, on which relief under Section 4 and 5 must in all
cases be premised, is, whether the Applicant a senior citizen, was
dependent on the Respondent, a child, grant child or relative for
her maintenance or basic needs or amenities of life which was or
were denied by the Respondent.
32. It is necessary to note that Section 23 of the Act
specifically deals with a contingency where any senior citizen
who, after the commencement of the 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, it is in such a
contingency that Section 23 provides that such a transfer of the
property shall be deemed to have been made by fraud or coercion
or under undue influence and shall at the option of the transferor
be declared void by the Tribunal.
6 W.P.No.5830 of 2019, decided on 19 November 2019
N.S. Kamble page 15 of 20
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33. It is necessary to emphasise that in the present case
we are not concerned with Section 23 as there is neither any
transfer by way of gift or otherwise nor there is a relief of any such
transfer being declared as void claimed before the Tribunal.
Thus, we are essentially concerned with the relief under Section 4
and 5 of the 2007 Act.
34. At this stage a reference to the decision of the
Supreme Court in S. Vanitha (Supra) is necessary at some details.
That was a case where the parents in law of the Appellant S.
Vanitha had approached the tribunal under the 2007 Act, inter
alia seeking eviction of the Appellant (their daughter-in-law)
from the residential house. There was a matrimonial dispute
between the Appellant and her husband who was a Respondent
in the Application made before the Tribunal.
35. The Application was resisted on behalf of the
Appellant claiming that the Application was collusive and was
filed at the instance of the estranged husband with a view to evict
her from the matrimonial home. A specific objection to the
jurisdiction of the Tribunal entertaining the proceedings seeking
her eviction claiming that in the 2007 Act there is no provision
for an order of eviction, was raised. The Assistant Commissioner
allowed the Application which was confirmed by the Deputy
Commissioner in Appeal directing eviction of the Appellant from
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the 'shared household'. The Appellant unsuccessfully challenged
the said order before a learned Single Judge of the High Court
and thereafter in an Appeal before the Division Bench and the
matter went to the Supreme Court. The Supreme Court
considered the provisions of the 2007 Act in the context of the
earlier legislation being the protection of Women from Domestic
Violence Act 2005 as the Appellant S. Vanitha being the
daughter-in-law of the Original Applicants had sought,
protection under the provisions of the 2005 Act. Thus essentially
the Supreme Court was concerned with the inter play of the
rights of the parties under the 2005 Act and the 2007 Act.
36. The Supreme Court inter alia held that although in a
given case the Tribunal can direct eviction it cannot be over ride
the protection granted to a 'daughter-in-law' in respect of the
shared household. What are significant for the present purpose,
are the observations in paragraph 14 of the judgment, in which
the Supreme Court has held that a senior citizen including a
parents "who are unable to maintain themselves" from their own
earning or out of the property owned by them is/are entitled to
make an Application under Section 4. I am conscious of the fact
that decision of the Hon'ble Supreme Court in S. Vanitha was
rendered in the context of the dichotomy between the provisions
of the Domestic Violence Act and the Senior Citizens Act. None
the less the Supreme Court has in clear terms observed that it is
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only a Senior Citizen who is unable to maintain himself/herself
from their own earnings and from property owned by them is/are
entitled to make an Application under Section 4.
37. In the present case, I am only concerned with the
Application and the relief sought by the Respondent No.2 under
Sections 4 and 5 of the 2007 Act. The issue can also be looked at
from another angle. The Respondent No.3 who is the mother of
the Applicant and the estranged wife of the Respondent No.2
had intervened and claims that eviction of the Petitioner is really
an attempt to see that the Respondent No.3 is rendered without
any support and is compelled to leave the house which can be
said to be a shared household.
38. I have already noticed that shortly after the
Respondent No.3 approached the learned Magistrate under the
provisions of the Domestic Violence Act, the Respondent No.2
filed an Application under the 2007 Act for eviction of the
Petitioner. There is material on record to show that the
Respondent No.3 has a longstanding history of depression and
anxiety and claims to need support from the Petitioner. Precisely
the claim of the Respondent No.2 has to be considered.
39. I am conscious that the complaint filed by the
Respondent No.3 under the Domestic Violence Act is pending.
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However, this is only to examine whether in such a case, where
there are genuine disputed questions of law and fact involved, the
summary remedy provided under Section 4 and 5 of the 2007
Act particularly when the Respondent No.2 is not claiming any
maintenance would be an appropriate remedy. In my humble
view, the answer has to be in the negative.
40. Reliance placed on behalf of the Respondent No.2 on
the decision of this Court, in Suryakant Pawar and Others is
misplaced, Suryakant Pawar was a case where a widowed mother,
a senior citizen was trying to gain the possession of the tenement
from one of her sons.
41. In Shweta Shetty, before the Division Bench of this
Court, the original complainant Mr.Shetty who was 94 years old
had approached the Tribunal claiming eviction of the Petitioners
Shweta one of his daughters from the suit flat which was
admittedly owned by Mr.Shetty.
42. The Division Bench after taking note of the decision
of the Supreme Court in S. Vanitha has held that in an
appropriate case an order of eviction can be passed. It is
necessary to note that the existence of a power and its exercise are
to different aspects. The question whether in a particular case,
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eviction can be ordered would obviously depend upon facts and
circumstances of each case.
43. The decision in case of Ranjana Makhariya and
Ashish Dalal is also misplaced as these cases turned on its their
own facts.
44. Considering the overall circumstances, I find that the
impugned order cannot sustained and deserves to be set aside. In
the result the Petition is allowed. The impugned order dated 20
January 2021 is hereby set aside. S.R. No.71 of 2020 stands
dismissed. However, the Petitioner can take recourse to any other
remedy, if available in law, and if so advised in the matter. In the
circumstances, there shall be no order as to costs.
C.V. BHADANG, J.
N.S. Kamble page 20 of 20
