Bombay High Court
Vaishali Abhishek Mehta And Anr vs The Honarable Sub Divisional Officer ... on 13 December, 2023
2023:BHC-AS:38212
2-WP-14388-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.14388 OF 2023
SHARADA
1. Mrs. Vaishali Abhishek Mehta ]
RANGNATH
WAHULE Aged : 40 years, Indian Inhabitant ]
Digitally signed by
SHARADA
RANGNATH WAHULE
Date: 2023.12.18
R/o:B/703, Siddhivinayak Garden CHS ]
19:46:38 +0530
Opp. To Sosa Classic Hotel, Ashokwan, ]
Dahisar (E), Mumbai-400068. ]
2. Mr. Abhishek Rajendra Mehta ]
Aged : 38 years, Indian Inhabitant ]
R/o.B/703,Siddhivinayak Gardens CHS ]
Opp. To Sosa Classic Hotel, Ashokwan, ]
Dahisar (E), Mumbai-400068. ] Petitioners
V/s.
1. The Hon/ble Sub-Divisional Officer ]
(W.S.), Bandra, Mumbai ]
Having Office at Office of Collector, ]
Mumbai Suburban District, ]
Administrative Building, 9th Floor, ]
Government Colony, Opp. Chetana
College, ]
Bandra (East), Mumbai-400 051 ]
2. Smt. Varsha Rajendra Mehta ]
Aged : 61 years, Indian Inhabitant ]
R/o:B/703, Siddhivinayak Gardens
CHS, ]
Opp. To Sosa Classic Hotel, Ashokwan, ]
Dahisar (E), Mumbai-400068. ]
1
Sharada
::: Uploaded on - 18/12/2023 ::: Downloaded on - 29/02/2024 23:56:38 :::
2-WP-14388-2023.doc
3. Shri Rajendra Kantilal Mehta ]
Aged : 64 years, Indina Inhabitant
R/o:B/703, Siddhivinayak Gardens
CHS, ]
Opp. To Sosa Classic Hotel, Ashokwan, ]
Dahisar (E), Mumbai-400068. ]
4. Dahisar Police Station ]
Through Senior Inspector ]
A wing, Swami Vivekanand Marg,
Krishna Colony, ]
Dahisar (E), Mumbai-400068. ] Respondents
____________________________________
Mr. Sunil R. More Ms. Rakhee V. Gadankush, Advocate for the
Petitioners.
Mr. A.P. Vanarase, A.G.P. for the State-Respondent Nos.1 and 4.
Mr. Sarthak Diwan, Advocate - Amicus Curie for the Respondent
Nos.2 and 3.
Ms. Vaishali Abhishek Mehta, Petitioner No.1 present in person.
____________________________________
CORAM : RAJESH S. PATIL, J.
DATED : 13 DECEMBER 2023
JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally by
the consent of the parties.
2. This Writ Petition is filed under Article 227 of the
Constitution of India by Petitioners who are daughter-in-law and
son of Respondent Nos.2 and 3. The challenge in this Writ Petition
is to the order dated 23 October 2023 passed under Section 5(1)
of the Maintenance and Welfare of Parents and Senior Citizens Act,
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2007 ( for short "the Senior Citizens Act").
FACTS
2.1. There is no dispute that Respondent Nos.2 and 3 are the
owners of Flat No.B/703, Siddhivinayak Gardens Co-operative
Housing Society, Opp to Sosa Classic Hotel, Ashokvan, Dahisar
(East), Mumbai - 400 068. (for short 'the subject flat'). The
Petitioners are as of now staying in the subject flat, with
Respondent Nos. 2 and 3, who are the mother and father of
Petitioner No.2.
2.2. Petitioner No.1 and Petitioner No.2 got married with each
other on 29 June 2020 in Mumbai. At the time of Marriage
Petitioner No.1 was a widow, and she had a son aged 10 years
from her previous marriage. Petitioner No.2 at the time of
marriage was a divorcee. After marriage, Petitioner No. 2 and
Petitioner No.1 along with her son started residing with
Respondent No.2 and Respondent No.3 in the subject flat.
2.3. Shortly thereafter, as there were disputes and differences
between Petitioners and Respondent Nos. 2 and 3, police
complaints were filed by Petitioner No.1 against Respondent Nos.
2 and 3, which were registered as N.C.'s. It is the case of
Petitioners, that Respondent Nos.2 and 3 intended to lease out two
bed rooms to "Paying Guest" for earning monies and hence they
attempted to evict the Petitioners from the subject flat.
2.4. On 10 April 2023 Respondent Nos. 2 and 3 filed Application
under Section 5 of the Senior Citizens Act before the Presiding
Officer, Senior Citizens Maintenance Tribunal, Sub-Urban Mumbai
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seeking therein to evict Petitioner Nos. 1 and 2 from the subject
flat. On being served with the copy of Application Petitioners filed
reply to the said Application of Respondent Nos. 2 and 3.
2.5. The Tribunal after hearing the parties and considering the
documents on record by its order dated 23 October 2023 directed
the Petitioners to vacate the subject flat within 30 days. The
impugned order dated 23 October 2023 passed by the Tribunal has
been challenged in the present Writ Petition by the Petitioners.
3. As Respondent Nos.2 and 3 were not represented by any
Advocate in the present proceedings, this Court appointed
Advocate Mr. Sarthak Diwan as Amicus Curiae to assist this Court
in disposing of this matter.
SUBMISSIONS :
4. Mr. Sunil More appeared for the Petitioners and made his
submissions on their behalf. He submitted that the impugned
eviction order passed by the Presiding Officer of Senior Citizens
Maintenance Tribunal, (for short 'Tribunal') is not maintainable, as
the officer does not a power to pass an Eviction Order. He
admitted that the subject flat is owned by Respondent Nos.2 and 3.
5. Mr. More's second line of argument was Respondent No.2
though is a Senior Citizens as of date, however, on the date of the
filing of the application, she was 59 years and 8 months old. Mr.
More however, admitted that Respondent No.3, who is the father-
in-law of Petitioner No.1 was 64 years of age on the date of the
filing of the present application. Mr. More submitted that since
Respondent No.2 was not a Senior Citizen on the date of the filing
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of the application; the application should not have been
entertained by the SDO, Bandra, Mumbai. Mr More, submitted that
if evicted, the petitioners will have no place to stay, and they will
become homeless.
6. Mr. Sarthak Diwan who appeared as Amicus Curiae showed
me the copy of the complainant and also the cause title of the
complaint, which shows that Respondent No.3 was a Senior
Citizen on the date of the filing of the complaint before the
Competent Authority. He further showed me signature of
Respondent No.3 on the copy of the complaint along with the
signature of Respondent No.2. Mr. Diwan also showed me the sale
deed of the subject flat from which it can be derived that the
subject flat is infact owned by Respondent Nos.2 and 3 jointly. Mr.
Diwan also showed me the provisions of Section 5 and Section 23
of the Senior Citizens Act. Mr. Diwan submitted that since the
complaint before the Competent Authority has been signed by two
persons, out of which one person admittedly was a Senior Citizen,
the complaint was maintainable before the Competent Authority.
Mr. Diwan further submitted that the probable reason of filing the
complaint jointly before the Competent Authority, as the names of
Respondent Nos.2 and 3 being jointly in the sale deed. Mr. Diwan
to buttress his submissions, relied upon the following judgments
i) Sheetal Devang Shah V/s Presiding Officer of the
Maintenance and Welfare of Parents and Senior Citizens and
Ors reported in 2022 SCC OnLine Bom 1068.
(ii) Shweta Shetty vs. State of Maharashtra and reported in
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2022 (1) Mh.L.J. 279.
(iii) Suryakant Kisan Pawar Versus Deputy Collector, Mumbai
and Presiding Officer Parents and Senior Citizens Subsistence
Tribunal and Another reported (2022) AIR Bom R 359.
(iv) Namdeo s/o Babuji Bandge and another vs. State of
Maharashtra and Others reported in 2022(4) Mh.L.J. 258.
ANALYSIS and CONCLUSION
7. I have heard counsel for both the sides and I have considered
the documents on record.
8. The first issue in the present proceedings raised is about the
maintainability of the Application under the Senior Citizens Act,
before the Presiding Officer, Senior Citizens Maintenance Tribunal.
8.1 After going through the cause title of the complaint, it can
be seen that at least the respondent no.3 was a senior citizen on
the date of filing of complaint before the Competent Authority.
8.2 The sale deed of the subject flat shows that the flat was
purchased by the respondent nos. 2 and 3 jointly. Therefore, even
if the application filed under section 5(1), was preferred by only
respondent no.3, even in that case, the complaint could have been
maintainable. It seems that the probable reason for filing
complaint jointly in the name of respondent nos. 2 and 3 is that
the sale deed was in the name of the respondent nos. 2 and 3.
8.3 Taking into consideration that the sale deed was in the joint
name of the respondent nos. 2 and 3 and the fact that the
respondent no.3 has also filed the complaint before the Competent
Authority and verified the complaint before the Competent
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Authority. I am of the view that the said complaint was
maintainable.
9. As regards the second issue of powers of officer to pass an
eviction order is concerned, it will be necessary to consider the
relevant section of the Senior Citizens Act.
Section 2 (b) reads as under :-
"maintenance" includes provision for food, clothing, residence
and medical attendance and treatment,
Section 4 (2) reads as under :-
"2. The obligation of the children or relative, as the case may
be, to maintain a senior citizen extends to the needs of such
citizen so that senior citizen may lead a normal life."
Section 4 (3) reads as under :-
"3. The obligation of the children to maintain his or her parent
extends to the needs of such parent either father or mother or
both, as the case may be, so that such parent may lead a normal
life."
Section 23 (2) reads as under :-
"2. Where any senior citizen has a right to receive maintenance
out of an estate and such estate or part , thereof is transferred,
the right to receive maintenance may be enforced against the
transferee if the transferee has notice of the right, or if the
transfer is gratuitous; but not against the transferee for
consideration and without notice of right."
[Emphasis Supplied]
10. So also it will be necessary to consider the rules framed
under the Senior Citizens Act.
10.1. Rule No. 20 (1) of Maintenance Welfare Senior Citizens Rule,
2010, reads as under :-
"20. Action plan for the protection of life and property of
senior citizens. (1) The District Superintendent of Police,
and in the case of cities having a Police Commissioner, such
Police Commissioner shall take all necessary steps, subject
to such guidelines as the State Government may issue from
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time to time, for the protection of life and property of
senior citizens."
[Emphasis Supplied]
11. Respondent Nos.2 and 3 who are the parents of Petitioner
No.2 have in their application filed under the Senior Citizens Act
sought eviction of Petitioners from the subject flat. Petitioners have
themselves raised ground that Respondent Nos. 2 and 3 intend to
give a part of subject flat to "Paying Guest" in order to earn
income. The definition of maintenance under the Act includes
provisions of residence. Section 4 of the Act makes it obligations of
children to maintain their parents, so that such parents may lead a
normal life. So also such an obligations is on relative of senior
citizens.
12. As per Section 23 (2) if the senior citizens has right to
receive maintenance out of an estate, the right to receive
maintenance can be enforced against the transferee. So also Rule
20 (1) allows the Police Commissioner to take all necessary steps
for the protection of life and property of senior citizens. In the
present case there is no dispute that the subject flat is owned by
Respondent Nos. 2 and 3. There is no disputes that Respondent
No.3 was a senior citizens on the date of filing of the application
under the Senior Citizens Act. As of today even Respondent No.2 is
a senior citizen.
13.1. As regards the issue about the powers of the Competent
Authority under the Senior Citizens Act to pass an eviction order.
Mr. Diwan has referred to 4 judgments on the said issue. The first
judgment on the said issue is that of Sheetal Devang Shah V/s
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Presiding Officer of the Maintenance and Welfare of Parents
and Senior Citizens and Ors1. Paragraph Nos.59 and 64 of the
said judgment reads as under:-
(59) The Tribunal, while discussing issue No.3 i.e., "Can the
request made by the applicant be accepted?", has made
reference to various documents placed on record by the
parties and in particular documents in relation to the said
residential premises wherein, the parties are residing, and has
reached a conclusion, that the residential premises is in the
name of Mahendra Shah, who has inherited the same, from
his parents. The Tribunal has also considered the effect of
giving such property as a gift by Mahendra Shah to Devang
Shah and after adverting to the provisions of Section 23 of the
said Act, which provides for protection of life and property of
senior citizens and as such, has correctly reached the
conclusion, that the applicants' (Nalini and Mahendra Shah)
request for exclusion of Devang Shah from the suit property
can be granted. It would be relevant to reproduce hereinbelow
the provisions of Section 23(1) of the said Act, which reads as
under:-
"23. Transfer of property to be void in certain
circumstances.-(1) Where any senior 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 under undue influence
and shall at the option of the transferor be declared
void by the Tribunal."
(64) In that view of the matter, we are of the opinion
that the view taken by the Tribunal, after averting to the
material placed on record, is legally as well as factually
sustainable. Therefore, we confirm the order passed by the
Tribunal except the direction to Sheetal Shah to pay jointly
with Devang Shah, maintenance of Rs. 25,000/- to Nalini
Shah and Mahendra Shah. Therefore, the direction to
Sheetal Shah to that extent is quashed and set aside.
However, as already observed, the son of Nalini Shah
1 2022 SCC OnLine Bom 1068
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namely, Devang Shah is obliged to pay the said
maintenance amount to Nalini Shah.
13.2. The Second Judgment referred by Mr. Diwan is of
Division Bench of this Court. Shweta Shetty vs. State
of Maharashtra and Ors2 Paragraph Nos.11 and 22
reads as under:-
(11) The Division Bench decision of this Court of 13 th
August, 2021 in Ritika Prashant Jasani vs. Anjana
Niranjan Jasani and Others, 2022(1) Mh.L.J. 406 = 2021
SCC OnLine Bom 1802 (of the Bench of which one of us,
Jamdar J. was a member) reviewed the case law in
question, including the decision of the Supreme Court in
S. Vanitha vs. Deputy Commissioner, Bengaluru Urban
District and ors., 2021 (5) Mh.L.J. (S.C). 39 = AIR 2021
SCC 177. In Jasani's case, this Division Bench held in
paragraphs 22 and 23:
"22. This Court is cognizant that the Senior
Citgizens Act, 2007 was promulgated with a view to
provide a speedy and inexpensive remedy to senior
citizens. Accordingly, Tribunals were constituted under
section 7. These Tribunals have the power to conduct
summary procedures for inquiry, with all powers of the
Civil Couts, under section 8. the jurisdiction of the Civil
Courts has been expllicitly barred under section 27 of the
Senior Citizens Act, 2007. However, the over-riding
effect for remedies sought by the applicants under the
Senior Citizens Act, 2007 under section 3, cannot be
interpreted to preclude all other competing remedies
and protections that are sought to be conferred by the
PWDV Act, 2005. The PWDV Act, 2005 is also in the
nature of a special legislation, that is enacted with the
purpose of correcting gender discrimination that pans
out in the form of social and economic inequities in a
largely patriarchal society. In deference to the
dominant purpose of both the legislations, it would be
appropriate for a Tribunal under the Senior Citizens
Act, 2007 to grant such remedies of maintenance, as
envisaged under section 2(b) of the Senior Citizens
Act, 2007 that do not result in obviating competing
remedies under other special statutes, such as the
PWDV Act, 2005. Section 26 of the PWDV Act
empowers certain reliefs, including relief for a
residence order, to be obtained from any civil Court in
any legal proceedings. Therefore, in the event that a
composite dispute is alleged, such as in the present case
2 2022(1) Mh.L.J. 279
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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 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 to 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.
23. Adverting to the factual situation at hand, on
construing the provisions of sub-section (2) of section 23
of the Senior Citizen Act, 2007, it is evident that it applies
to a situation where a senior citizen has a right to receive
maintenance out of an estate and such estate or part
thereof is transferred. On the other hand, the appellant's
simple plea is that the suit premises constitute her "shared
household" within the meaning of section 2(s) of the
PWDV Act, 2005. We have also seen the series of
transactions which took place in respect of the property:
the spouse of the appellant purchased it in his own name
a few months before the marriage but subsequently sold
it, after a few years, under a registered sale deed at the
same price to his father (the father-in-law of the
Appellant), who in turn gifted it to his spouse i.e. the
mother-in-law of the appellant after divorce proceedings
were instituted by the Fourth respondent. Parallel to this,
the appellant had instituted proceedings of dowry
harassment against her mother-in-law and her estranged
spouse; and her spouse had instituted divorce
proceedings. The appellant had also filed proceedings for
maintenance against the Fourth respondent and the
divorce proceedings are pending. It is subsequent to these
events, that the Second and Third respondents instituted
an application under the Senior Citizens Act, 2007. The
fact that specific proceedings under the PWDV Act, 2005
had not been instituted when the application under the
Senior Citizens Act, 2007 was filed, should not lead to a
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situation where the enforcement of an order of eviction
deprives her from pursuing her claim of entitlement under
the law. The inability of a woman to access judicial
remedies may, as this case exemplifies, be a consequence
of destitution, ignorance or lack of resources. Even
otherwise, we are clearly of the view that recourse to the
summary procedure contemplated by the Senior Citizen
Act, 2007 was 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."
54. At this stage, we may mention that in Smt. S.
Vanitha (supra), Supreme Court has taken the view that
the Tribunal under the 2007 Act may have the
authority to order an eviction if it is necessary and
expedient to ensure maintenance and protection of
the senior citizen or parent. Eviction, in other words,
would be an incident of the enforcement of the right to
maintenance and protection. However, this remedy can be
granted only after adverting to the competing claims in
the dispute. (Emphasis added)
22. We return to Mr. Thorat's first argument that the Act
does not contemplate the removal of any person from
immovable property. We believe this proposition to be
incorrect, and so held to be even by S Vanitha and Jasani.
Our attention is drawn to the decision of 26 th June 2018
of a learned Single Judge of this Court (R.D. Dhanuka, J.)
in Dattatrey Shivaji Mane vs. Lilabai Shivaji Mane, (2018)
6 Mh.L.J. 681 = 2018 SCC OnLine Bom 2246 = AIR 2018
Bom 229 = (2019) 2 Bom. C.R. 181. We note the
submission that was made before the Court and which is
reproduced in paragraph 14 22, 24, 25 and 31 of that
decision :
"14. Learned counsel for the petitioner could
not any legal right of his client to occupy the tenement
owned by the respondent No. 1 under the provisions
of the Maintenance and Welfare of Parents and Senior
Citizens Act, 2007 or under any other provisions of
law. The submission of the petitioner is that since the
petitioner has been allegedly maintaining the respondent
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No.1 for last several years, no order of eviction could be
passed by the tribunal under section 4 of the said Act or
under any other provisions of the said Act. Per contra, the
respondent No.1 has produced sufficient material on
record before this Court and also the Tribunal showing
that the respondent No. 1 has been harassed by the
petitioner and his family members for last several years.
22. The provision of section 4 of the said Act permits
such application for eviction of child and grand child
if the condition set out in that provision read with
other provisions are satisfied. In my view, there is
thus no substance in the submission of the learned
counsel for the petitioner that the order of eviction
cannot be passed by the Tribunal under section 4 of
the said Act read with other provisions of the said Act.
24. Insofar as the submission of the learned counsel for
the petitioner that under section 4 of the said Act, no
order of the eviction can be passed by the Tribunal but the
said provision could be invoked only for the purpose of
making a claim for maintenance is concerned, Delhi High
Court in the case of Sunny Paul and anr. vs. State NCT of
Delhi and ors. (supra) has considered the said issue at
great length and has held that the claim for eviction is
maintainable under section 4 of the said Act read with
various other provisions of the said Act by a senior
citizen against his children and also the grand
children.
25. If the argument of the learned counsel for the
petitioner is accepted by this Court then no senior
citizen who has been meted out with harassment and
mental torture will be able to recover possession of
his/her property from the children or grand children
during his/her lifetime. The said Act is enacted for the
benefit a and protection of senior citizen from his
children or grand children. The principles of law laid
down by the Delhi High Court in the case of Sunny
Paul and anr. vs. State NCT of Delhi and ors. (supra)
would squarely apply to the facts of this case. I
respectfully agree with the views expressed by the
Delhi High Court in the said judgment.
31. In my view, section 4 cannot be read in isolation
but has to be read with section 23 and also sections
2(b), 2(d) and 2(f) of the said Act. The respondent No.
1 mother cannot be restrained from recovering
exclusive possession from her son or his other family
members for the purpose of generating income from
the said premises or to lead a normal life. In my view,
if the respondent No.1 mother who is 73 years old and
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is a senior citizen, in this situation, is asked to file a
civil suit for recovery of possession of the property
from her son and his other family members who are
not maintaining her but are creating nuisance and
causing physical hurt to her, the whole purpose and
objects of the said Act would be frustrated. "
[Emphasis supplied]
13.3 The Third Judgment referred of a Single Judge of
this Court reported in case Suryakant Kisan Pawar
Versus Deputy Collector, Mumbai and Presiding
Officer Parents and Senior Citizens Subsistence
Tribunal and Another3 Paragraph Nos. 18, 19, 20, and
31 read as under:-
18. The question in the aforesaid circumstances is as to
whether the mother was justified in invoking the
provisions of the Senior Citizens Act to safeguard her
rights as a senior citizen as ordained under Section 4,
Section 5 read with Section 23 of the Act, so as to be
entitled for an order to be passed by the tribunal, to evict
the petitioner. In my opinion, the mother was justifiably
entitled to the relief as granted by the tribunal. The
following discussion would aid such conclusion
19. The Senior Citizens Act as seen from its
preamble is a legislation to provide for more effective
provisions for the maintenance and welfare of parents
and senior citizens guaranteed and recognized under the
Constitution and for matters connected therewith or
incidental thereto. It is also evident from the statement of
objects and reasons that the intention behind the Senior
Citizens Act is to provide for institutionalization of a
suitable mechanism for protection of life and property of
older persons. In the light of such object and intention,
the legislature has framed Section 4, 5 and 23 of the
Senior Citizens Act. Section 4 provides for maintenance
of parents and senior citizens. Section 5 provides for
remedy for an application for maintenance to be filed
under Section 4 interalia by a senior citizen or a parent as
also by any other person or organization authorised by
him, or the tribunal may take suo motu cognizance.
Section 23 provides for transfer of property to be void in
certain circumstances.
20. In my opinion, the present case clearly
3 (2022) AIR Bom R 359
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attracts the said provisions. The mother was entitled to
invoke the provisions of Section 4 to make an application
under Section 5 when she was unable to maintain herself
from her property and when her right to lead "her normal
life" was being deprived by the petitioner, as recognized
by sub-sections (2) and (3) of Section 4. In this context, it
would be useful to refer to the decision of this Court in
Ashish Vinod Dalal v. Vinod Ramanlal Dalal (supra). In
such decision, this Court considered the scope and ambit
of the provisions of sections 4 and 5 of the Senior
Citizens Act to hold that the intention of the legislature in
making such provisions in the interest of senior citizens,
covers a wide spectrum of the senior citizen's rights,
which are fundamental to the their very survival and/or
livelihood at their old age. It was observed that in dealing
with the grievances of the senior citizens falling under
Section 4, the Court's approach cannot be narrow and
pedantic in applying the provisions of the Senior Citizens
Act. It was held that a protection from harassment,
exploitation, neglect, psychological disturbances,
psychological needs, and all possible facets to safeguard
the senior citizen's physical and mental health are
required to be recognized under sub-section (2) and sub-
section (3) of section 4 as it categorically provided that
the obligation of the children or relatives was to cater to
the needs of the senior citizens, so that they 'live a
normal life'. It was held that the words "normal life" as
used in these provisions would possess a far deeper and
wider concept, deriving its meaning and having a bearing
on the fundamental rights of livelihood as guaranteed
and enjoyed by senior citizens under Article 21 of the
Constitution.
31. In so far as reliance on behalf of the
petitioner on the decision of the Division Bench of this
Court in Ritika Prashant Jasani (supra) is concerned, it
would not assist the petitioner in any manner in as much
as in the said case the property was an ancestral property
and an issue of a shared household under the Domestic
Violence Act was raised. The legal position as arising
from the said decision is considered by this Court in
Ashish Vinod Dala's case (supra), wherein referring to the
decision of the Divisin Bench in Ritika Prashant Jasani
(supra), the Court made the following observations:-
"15. Lastly, the contention as urged on behalf
of the petitioners relying on the decision in Ritika
Prashant Jasani's case needs to be outrightly rejected,
inasmuch as, the question which fell for consideration
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of the Court in such case was as to whether the
tribunal under the Senior Citizens Act could evict a
person from the tenement in which he has ownership
rights. In the said case the property / flat in question
was the ancestral property having joint rights and it is
in such context the right to reside in a shared
household under the D.V. Act was examined by the
Court. In the present case admittedly the property /
flat in question is not an ancestral property on which
the petitioner no. 1 can lay any claim. It was the
property of the father (respondent no. 1) who had
gifted it to his daughters within his own legal rights.
Moreover, paragraph 23 of the decision in Ritika
Prashant Jasani's case goes completely contrary to the
contention as urged on behalf of the petitioners,
wherein the Division Bench has observed thus:
"23. At this stage, we may mention that in Smt. S.
Vanitha (supra), Supreme Court has taken the view that
the Tribunal under the 2007 Act may have the authority
to order an eviction if it is necessary and expedient to
ensure maintenance and protection of the senior citizen
or parent. Eviction, in other words, would be an incident
of the enforcement of the right to maintenance and
protection. However, this remedy can be granted only
after adverting to the competing claims in the dispute. "
[Emphasis supplied]
13.4. The last Judgment referred by Mr. Diwan is that of
Namdeo s/o Babuji Bandge and another vs. State of
Maharashtra and Others4 Paragraph Nos.5, 15, and 16
read as under:-
5. Respondent 2, who was then aged 78 years and
respondent 3, who was then aged 67 years, preferred an
application dated 21-8-2018 contending that respondent
2 has constructed a residential house from self-earning in
Hansapuri, Balabhaupeth, Nagpur, and that the
petitioner 1 has illegally and forcibly taken possession of
part of the said house and is conducting himself in a
manner as would pose a serious threat to the safety and
security of the respondents 2 and 3. Respondent 2
submitted that he was a heart patient and is required to
undergo bypass surgery, which he is not in a position to
undergo for lack of funds. Respondents 2 and 3
contended that if the petitioners vacate the portion
illegally occupied, the said portion can be let out and the
4 [2022(4) Mh.L.J.] 258
Sharada
2-WP-14388-2023.doc
rental income would enable the respondents 2 and 3 to
better maintain themselves. Significantly, respondents 2
and 3 accused their son and daughter-in-law -
petitioners herein of physical assault and further of
preventing the well wishers and the other sons of the
respondents 2 and 3 from entering the residential house.
Respondents 2 and 3 alleged that the petitioners herein
let loose their dog on the visitors to discourage them
from visiting respondents 2 and 3, and have in the past
assaulted Gopal, their other son. Respondents 2 and 3
further accused and petitioners of threatening to kill
them. It is further alleged that the petitioners do not
contribute towards the water and electricity charges or
property tax.
15. In the present case, there is no competing dispute as
such involved.
16. I have no hesitation in observing that order of
eviction is absolutely necessary in order to ensure the
physical and emotional health and safety of the parents.
[Emphasis supplied]
14. In view of the law laid down by the Supreme
Court and by this Court, I am of the opinion that under
the sections of the Senior Citizens Act, as discussed
above, the Presiding Officer has enough powers to pass
order of eviction against the Petitioners. Hence, I have
no hesitation to hold that there are no merits in the
present writ petition. Hence, the present Writ Petition is
dismissed.
15. Mr. More on instructions of his client seeks stay to
the execution of this order. The said request of Advocate
More was opposed by Advocate Sarthak Diwan. The
request of Petitioner stand rejected.
16. Before, I conclude, I would like to thank, Advocate
Sarthak Diwan, who in a short notice digged out the
authorities on the subject and by his submissions ably
assisted this Court, in deciding this matter.
(RAJESH S. PATIL, J.)
Sharada
