Bombay High Court
Dinesh Bhanudas Chandanshive vs The State Of Maharashtra And Ors on 30 January, 2024
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2.WP7392_2021.DOC
2024:BHC-AS:4288-DB
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7392 OF 2021
WITH
INTERIM APPLICATION NO. 17712 OF 2023
Dinesh Bhanudas Chandanshive ... Petitioner
Versus
1. The State of Maharashtra
2. The Collector of Bombay
3. Sub-Divisional Officer and Chairman
Senior Citizens Maintenance Tribunal.
4. Smt. Laxmi Bhanudas Chandanshive ...Respondents
Mr. Harshal N. Mirashi for the petitioner/applicant.
Ms. P.J. Gavhane, AGP for the State.
Mr. Ajit M. Savagave for respondent no. 4.
_______________________
CORAM: G. S. KULKARNI &
FIRDOSH P. POONIWALLA, JJ.
DATED: 30 January, 2024
_______________________
Judgment : (Per G. S. Kulkarni, J.)
1. An unfortunate saga of a mother, who is a senior citizen, requiring to
initiate proceedings against her son and his wife, who illegally ousted her from
her abode, is the subject matter of the present proceedings.
2. This petition under Article 226 of the Constitution of India assails an
order dated 17 September, 2021 passed by the Senior Citizens Maintenance
Tribunal (for short "Tribunal"). By the impugned order, the petitioner, who is
the son of respondent no. 4-Smt. Laxmi Bhanudas Chandanshive ("the
mother") has been ordered to vacate the tenement belonging to her.
Page 1 of 19
30 January, 2024
2.WP7392_2021.DOC
3. The mother had approached the Tribunal invoking its jurisdiction
against the petitioner and his wife contending that the petitioner and his wife
have illegally removed her from tenement no. 310, Vishwa Sahakar
Cooperative Housing Society Ltd., Gautam Nagar, Dindayal Upadhayay Marg,
Mulund (West), Mumbai - 400 080. The mother contended that the
tenement was allotted to her deceased husband (petitioner's father), who
passed away on 15 June, 2015. After her husband's demise, she was peacefully
residing in the said tenement. She has contended that she has three sons and
one daughter, all of whom are married and are residing in their respective
houses. The mother complained that after the demise of her husband, the
petitioner along with his wife visited her and thereafter refused to leave the
tenement. It was her case that severe harassment was caused to her by the
petitioner and his wife, as a result of which in a state of being driven out of her
own house, she had to leave the tenement and have a shelter with her elder son
Vijay Bhanudas, who was staying at Kisannagar, Wagle Estate, Thane in a small
tenement, where she is presently residing.
4. The mother contended that the motive of the petitioner to illegally oust
her so as to exclusively occupy her tenement with an intention to grab the
tenement that too during her life time and to the exclusion of the other siblings
of the petitioner. She contended that by fabricating documents, the petitioner
intended to sell the tenement. The mother contended that her deceased
Page 2 of 19
30 January, 2024
2.WP7392_2021.DOC
husband had in fact financially helped the petitioner to purchase a tenement at
Gatipada, Mulund, where the petitioner was residing with his family. Hence,
despite having an independent house, the petitioner with the sole motive and
to divest her from her only asset, which exclusively belonged to her after the
demise of her husband, caused her removal depriving her of a roof over her
head in the sunset years of her life. It is in these circumstances, she approached
the Tribunal praying for the relief that the petitioners be directed to be
removed from the tenement and she be put in possession.
5. The Tribunal, after granting an opportunity to the petitioner to file a
reply to the complaint made by the mother, as also granting sufficient
opportunity of a hearing and after considering the rival contentions, by the
impugned order dated 17 September, 2021 allowed the complaint/application
of the mother in terms of the following operative order:
(Translation of Photocopy of an Order, typewritten in Marathi.)
ORDER
1. Application of the Applicant is allowed.
2. Opponent Nos. 1 and 2 should vacate the said suit house and hand
over possession thereof to the Applicant within 30 days from the date of
receipt of the order. The Tahsildar, Kurla, Mulund shall ensure the
implementation of the order with the help of Senior Police Inspector of
concerned Police Station and shall take such action that the order is
implemented and submit a report to that effect.
3. The Order of Maintenance given under this Act shall operate and shall
remain in force as per the directions issued under Chapter-9 of the
Criminal Procedure Code, 1973 ( 2 of 1974) and this order shall be
executed as per the procedure prescribed for implementation, under the
said Code.
5. No order as to costs.
30 January, 2024
2.WP7392_2021.DOC
Sd/-
( Padmakar Rokade)
Sub-Divisional Officer
And Chairman, Senior Citizen Maintenance Tribunal"
6. It is against such order passed by the Tribunal, the present proceedings
are filed by the petitioner/son.
7. The case of the petitioner sought to be made out in the present petition
hardly depicts any substantive ground which would show any legal right of the
petitioner in respect of the tenement in question. There is no whisper in this
petition in regard to the petitioner having his own house, as specifically
asserted by the mother before the Tribunal as also before this Court. The only
contention as raised on behalf of the petitioner is that if a son like the
petitioner is to be aggrieved by the Tribunal's order, an effective remedy of an
appeal is not provided under the statutory scheme, as Section 16 of the
Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short
"the Senior Citizens Act") provides for a remedy of an appeal only to a senior
citizen or a parent and it does not provide for a remedy of an appeal to any
other person. Hence, according to the petitioner, such provision is arbitrary.
8. The case of the petitioner is also on the ground that the petitioner had
suffered a paralytic attack in the year 2019 for which he was hospitalized. He
contends that he is now a disabled person and without an employment. He also
contends that he is dependent on his wife, who is doing small works and which
30 January, 2024
2.WP7392_2021.DOC
is the only source of the income. It is his contention that for such reason, the
impugned order needs to be set aside and the petitioner along with his wife
ought to be permitted to reside in the said tenement.
9. A reply affidavit has been filed by the mother, who has denied the case
of the petitioner in the Writ Petition. She has contended that the tenement in
question was allotted to her deceased husband Bhanudas Chandanshiv, for
residential purpose by the Slum Rehabilitation Authority and after the demise
of her husband, the petitioner and his wife, without her consent, started
residing with her in the said tenement. She has contended that in doing so, the
petitioner and her other son Satish neglected to maintain her. They did not
bother to even provide her medical assistance. She has contended that she had
thus no alternative but to leave the tenement and reside with her elder son
Vijay, who was impleaded as respondent no. 3 in the proceedings before the
Tribunal. She has contended that when the petitioner had purchased the flat at
Gatipada, Mulund, her late husband had provided financial help to the
petitioner for purchasing the said flat, which has not been denied by the
petitioner anywhere. She has contended that the tenement is her only source
of livelihood. She could not have been thrown out from her own house by the
petitioner which was only for material gains. She has specifically contended
that the petitioner has recovered from paralysis and he has an employment at a
theatre, as also, his wife is working in a hospital. She contends that despite all
30 January, 2024
2.WP7392_2021.DOC
this, the petitioner and his wife had neglected to maintain her. She has
contended that she has no independent source of income and is leading a
miserable life at her old age. She has stated that the tenement is the only
shelter for her. She has reiterated that the petitioner is trying to create third
party interest in respect of her tenement, and if that happens, it would create
further complications, which would be beyond her means to remedy them,
thereby causing her an irreparable harm and prejudice. She has also stated that
due to old age and her ailments, it is difficult for her to survive for want of
income. She has stated that she is residing in a small tenement with her elder
son. She has also stated that she is suffering from various ailments requiring
medical treatment and that the petitioner as also her another son Satish had
failed to make provision for her food, clothing and that the entire help is being
provided by the elder son Vijay with his meager source of income. It is stated
that Vijay is also not in a sound financial condition. She has contended that
the Tribunal after appreciating the evidence on record as also considering the
intention of the legislation, has passed a reasoned order, which would not
warrant interference of this Court. She also contended that the petitioner has
not approached this Court with clean hands and he would not be entitled to
pray for discretionary and equitable reliefs. She contended that for this reason,
the petition be dismissed. There is no rejoinder affidavit filed on behalf of the
petitioner.
30 January, 2024
2.WP7392_2021.DOC
10. We may note that this petition was filed on 12 October, 2021. By an
order dated 28 October, 2021, an interim protection came to be granted in
favour of the petitioner by the co-ordinate Bench of this Court which
continued upto 28 June, 2023, when the co-ordinate Bench of this Court
making serious observations on the conduct of the petitioner vacated the ad-
interim order. The said order reads thus:
"1. Prima facie, it is clear that the Petitioner has obtained a
protective order of 28th October 2021 from a Division Bench of this
Court in an Interim Application No. 3162 of 2021 completely
suppressing the fact that the Petitioner had not cared to serve the
original complainant, his mother. She was the one who complained
against the Petitioner under the Maintenance and Welfare of Parents
and Senior Citizens Act 2007. She is Respondent No. 4 to the Petition
and her address in the cause title is deliberately wrong. The order of
28th October 2021 notes the appearance for the State. None appeared
for the 4th Respondent. There is no statement that Respondent No. 4
was absent though served.
2. Learned Advocate for the Respondent No. 4 says that even after
entering of an appearance, several requests to the Advocate for the
Petitioner for a copy of the Petition went unanswered. Finally, he was
able to get a copy only today and that too from the learned AGP, Mrs
Gavhane. The Petition was filed in October 2021. Until end of June
2023, there is no service properly effected on the 4 th Respondent, the
main contesting Respondent. It is quite evident that this Petitioner is
trying to obtain orders of this court without sufficient notice and by
actively misleading the court.
3. The ad-interim order of 28th October 2021 is vacated.
4. The Affidavit in Reply by Respondent No. 4 is to be filed
and served by 10th July 2023. Affidavit in Rejoinder is permitted and is
to be filed and served on or before 17th July 2023.
5. List the matter on 25th July 2023."
(emphasis supplied)
30 January, 2024
2.WP7392_2021.DOC
11. Despite the aforesaid order vacating the ad-interim protection, the
petitioner has refused to vacate the premises and it is for such reason, now the
authorities had initiated process to evict the petitioner so as to implement the
Tribunal's order.
12. Learned counsel for the petitioner has limited submissions in assailing
the impugned order. He has reiterated the submissions as averred in the
petition. He submits that the Court should take sympathetic view of the
matter, as the petitioner had suffered a disability. His next contention is that
the petitioner, as a legal representative of his deceased father, would have a
right and entitlement to be in possession of the property and therefore, the
impugned order ought not to be foisted on the petitioner. It is submitted that
the petitioner would maintain his mother and the case of the mother ought not
to be accepted. Thus, the basic contention on behalf of the petitioner is that of
the petitioner's legal right to inherit the father property.
13. On the other hand, learned counsel for the mother has placed reliance
on the reply affidavit to submit that none of the contention as urged on behalf
of the petitioner is tenable. It is submitted that the petitioner has his own
tenement, which is not been denied by him despite a clear case to that effect is
pleaded by the mother before the Tribunal as also in the present proceedings.
He submits that the petitioner cannot have exclusive legal right, much less to
oust his mother and deprive her of the maintenance which she would derive
30 January, 2024
2.WP7392_2021.DOC
from the tenement in question. He submits that there is no denial of the fact
that the petitioner and his wife are in employment, whereas there is no source
of income whatsoever to the mother. He, therefore, submitted that the petition
be dismissed.
14. Before we discuss the rival contentions, we may note that there are
several errors of dates in the petition including in the prayer clauses. The
petition is also not properly exhibited, which do not correspond with the
averments as made in the petition. Also, the documents as referred in the
averments are not annexed. Although, the petition is pending for quite
sometime, no steps were taken to correct the memo of the petition, which is
replete with the errors and defects.
Analysis and Conclusion
15. We have heard learned counsel for the parties. We have also perused the
record.
16. At the outset, we may observe that it is most unfortunate that the
mother in the twilight years of her life, after her husband had passed away,
instead of receiving love, affection, care and empathy from her sons and their
family members (barring the eldest son), was required to take recourse to legal
proceedings in approaching the tribunal, being ousted by her son from her
house. The feeling of being disowned by one of her sons itself has caused her a
30 January, 2024
2.WP7392_2021.DOC
trauma. None of the parents should suffer this way. In one's life, there is much
more than material things. Proud would be the parents of such children who
would have their own achievements on all fronts and not look at the wealth
and money of their old parents. However, litigation which has reached the
Courts, would show that the world cannot so idealistic, as human greed is a
bottomless pit. This is certainly neither the stage in life or the age of the
mother, that she should suffer on such cause. It is for such reason, the
legislature in recognising the rights of the senior citizens and to protect their
rights, have framed the Senior Citizens Act.
17. The object and intention of the act is to make provisions for
maintenance and welfare of the parents and senior citizens guaranteed and
recognized under the Constitution. The Statement of objects and reasons of
the enactment clearly set out the intention behind the legislation recognizing
the core human values of empathy, namely, that the traditional norms and
values of the Indian Society laid stress on providing care for the elderly.
However, due to withering of the joint family system, a large number of elderly
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 to lack of physical and financial
support. That ageing has become a major social challenge and there is a need
to give more attention to the care and protection for the older persons. It is
30 January, 2024
2.WP7392_2021.DOC
also set out that though the parents can claim maintenance under the Code of
Criminal Procedure, 1973, the procedure is both time-consuming as well as
expensive, Hence, a need was felt to have simple, inexpensive and speedy
provisions to claim maintenance for parents. It is with such solemn intention
the Parliament has enacted the Senior Citizens Act.
18. Broadly, the scheme of the Senior Citizens Act can be noted. Section 3
provides that the provisions of the Senior Citizens Act shall have effect
notwithstanding anything inconsistent contained in any enactment other than
this Act, so as to provide for an overriding effect of Senior Citizens Act. Section
4 is in regard to "Maintenance of Parents and Senior Citizens". Section 5 inter
alia provides for 'Application for maintenance' made under section by the
senior citizen or a parent as the case may be. Section 6 provides for
'Jurisdiction and procedure' of the tribunal. Section 7 provides for
'Constitution of Maintenance Tribunal'. Section 8 provides for "Summary
procedure in case of inquiry". Section 9 provides for "Order for maintenance".
Section 11 provides for "Enforcement of order of maintenance" and there are
other substantive provisions of Constitution of Appellate Tribunal under
section 15 and the provision for appeal under section 16 of the Act. Chapter
III provides for "Establishment of Oldage Homes". Chapter IV provides for
"Provisions for medical care of senior citizens". Chapter V provides for
"Protection of Life and Property of senior citizen", having provisions in regard
30 January, 2024
2.WP7392_2021.DOC
to measures for publicity, awareness etc. for welfare of senior citizens. Section
23 thereunder provides for "Transfer of property to be void in certain
circumstances". Chapter VI provides for "Offences and Procedure for trial".
Section 24 thereunder provides that whoever, having the care or protection of
senior citizen, leaves such senior citizen in any place with the intention of
wholly abandoning such senior citizen, shall be punishable with imprisonment
of either description for a term which may extend to three months or fine
which may extend to five thousand rupees or with both. Section 25 provides
for "Cognizance of offences". Chapter VII provides for Miscellaneous
provision thereby barring the jurisdiction of Civil Courts under section 27.
19. It is thus seen from the legislative scheme of Senior Citizens Act that it
provides for complete mechanism so as to achieve the object and intention of
the legislation to recognize the rights of the senior citizens and their
maintenance and welfare. In Abhimanyu Jayesh Jhaveri vs. Nirmala
Dharmadas Jhaveri & Anr.1, a learned Single Judge of this Court considering
the object and intention of the Act made significant observations on the plight
of the senior citizens, as intended to be remedied by the Senior Citizens Act.
The Court observed thus:
16. The object of the Act is to provide for more effective provisions
for the welfare and maintenance of parents and senior citizens as
guaranteed and recognized under the Constitution of India and matters
connected therewith. Senior citizens at their advanced age in life become
1 Writ Petition No. 4650 of 2021 decided on 17 Deember, 2021
30 January, 2024
2.WP7392_2021.DOC
helpless, more particularly, when confronted with an obnoxious and
unpleasant situation, where greedy and selfish children and relatives
intend to exploit the senior citizens for material gains. Most vulnerable
become those senior citizens, who have movable and immovable
properties, earned by them by their hard work, only to suffer such
nightmare and a calamity, being foisted on them by such selfish and
greedy members of the family. It would not be out of place to state that
Courts have witnessed senior citizens knocking the doors of the Courts
throughout the country, praying for reliefs under the Act. It is seen that
when such senior citizens have property and when they become
physically, psychologically and mentally weak and dependent and or
they are in ill health, in such helpless position, the torture, harassment
and depravement to them, from self-centered relatives and family
members commences so as to grab their property."
20. A learned Single Judge of this Court in interpreting the provisions of
Section 4 of the Senior Citizens Act in Ashish Vinod Dalal & Ors. v. Vinod
Ramanlal Dalal & Ors.2 considered the scope of section 4 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 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 protection from harassment, exploitation, neglect, psychological
disturbances, psychological needs, and all possible facets to safeguard the senior
citizen's physical and mental health is required to be recognized under sub-
section (2) and sub-section (3) of section 4, as it is categorically provided that
the obligation of the children or relatives is to cater to the needs of the senior
30 January, 2024
2.WP7392_2021.DOC
citizens so that they 'live a normal life'. It was also observed 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, which would include a right to prevent themselves from
being harassed by children and by relatives. It was held that it would be
permissible for the senior citizen to seek a relief in regard to the senior citizen's
property. The relevant observations as made by the Court are required to be
noted, which reads thus:
"8. There is a more fundamental question which needs to be addressed,
namely, whether the parents in the present facts were in any manner
precluded from taking recourse to the provisions of Sections 4 and 5 of
the Senior Citizens Act to enforce the needs of such senior citizens to lead
a normal life. The answer to this question would certainly be in the
negative. The provisions of the Senior Citizens Act are required to be
construed to take within its ambit the maintenance of the senior citizens
which certainly would include all facets of maintenance as provided for in
Section 4 of the Senior Citizens Act, which would aid the senior citizens
to lead a normal life. This certainly includes the senior citizens asserting
rights in respect of 'property', the meaning of which, is spelt out by
section 2(f) of the Act to mean property of any kind, whether movable or
immovable, ancestral or self acquired, tangible or intangible and which
would include rights or interest in such property.
9. As provided in sub-section (2) of Section 4, 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, which would certainly take within its ambit a protection from
any harassment and torture meted out by a son or relative by keeping
himself on the premises of the senior citizens. The intention of the
legislature to provide such protection to live a normal life to the parents is
also reflected in the provisions of sub-section (3) of Section 4 which
provides that the obligation of the children to maintain his or her parents
extends to the need of such parents either father or mother or both, as
the case may be so that such parents 'may live a normal life'. Maintenance
is also defined in Section 2(b) to include provision for food, clothing,
residence, medical attendance and treatment. Further Section 3 of the
Senior Citizens Act gives an overriding effect to the provisions of the said
30 January, 2024
2.WP7392_2021.DOC
Act notwithstanding anything inconsistent therewith contained in any
enactment other than the said Act.
10. It is thus clear that the intention of the legislature in making such
provisions in the interest of senior citizens, covers a wide spectrum of the
senior citizens rights, which are fundamental to the their very survival
and/or livelihood at their old age. Certainly the Court's approach cannot
be narrow and pedantic in applying the provisions of the Senior Citizens
Act to the grievances of the senior citizens falling within the ambit of the
said Act. A protection from harassment, exploitation, neglect,
psychological disturbances, psychological needs, and all possible facets to
safeguard their physical and mental health are required to be recognized
when sub-section (2) and sub-section (3) of Section 4 clearly provide that
the obligation of the children or relatives would be to cater to the needs
of the senior citizens so that they 'live a normal life'. 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. Certainly, this would include a right to
prevent themselves from being harassed by children and by relatives.
This is also clearly borne out by the preamble to the Senior Citizens Act
which reads thus:-
"An act to provide for more effective provisions for the
maintenance and welfare of parents and senior citizens
guaranteed and recognised under the Constitution and for
matters connected therewith or incidental thereto."
11. The statement of object and reasons in paragraph 3(c) reflects the
intention behind the legislation also to provide for institutionalization of
the suitable mechanism for protection of life and property of older
persons. Thus, it was certainly appropriate and necessary for the parents
in the facts of the present case to invoke the provisions of the Senior
Citizens Act to seek a relief against the petitioners qua their property
namely the flat in their possession.
12. ..... The property in question is not an ancestral property on which
the petitioner no.1 can claim any legal right so as to keep himself on such
property alongwith his family and foist themselves on the parents against
their wishes by remaining on the property without any legal rights. This
itself is a harassment and/or defeating the parents right to lead a normal
life."
(emphasis supplied)
21. In Shweta Shetty v. State of Maharashtra & Ors. 3, Justice G.S. Patel
speaking for the Division Bench, observed that to constitute eviction or to
3 Writ Petition (L) No. 9374 of 2020
30 January, 2024
2.WP7392_2021.DOC
invoke any prohibition against eviction, it must be shown that some legally
enforceable civil right of the appellant in the property itself has been
determined and that the appellant has been denied that right. It was observed
that the removal of a person with no right in the premises is not eviction so as
to attract any such prohibition. It was also observed that the statutory intent is
to protect senior citizens. It is not to foist on senior citizens an imaginary claim
over their own property where the claimant has no such right to begin with.
The statutory intent is not to limit the rights of senior citizens, but exactly the
reverse. Referring to the various decisions, it was further observed that the
harassment is an attempt to somehow grab the senior citizen's property in his
or her lifetime without thought spared to the mental or physical health well-
being or happiness of these seniors. We fully endorse the views of the Division
Bench.
22. As seen from the above decisions, it is quite settled that during the life
time of the parents, the children cannot assert any legal right whatsoever in
respect of the property of their parents claiming exclusive ownership or
possession of the parents property. The proper remedy for the petitioner would
be to file a suit in the event the other brothers are also claiming any right in the
premises and this cannot be during the life time of the mother.
30 January, 2024
2.WP7392_2021.DOC
23. Thus, applying the provisions of the Senior Citizens Act and the law as
laid down and interpreted in the aforesaid decisions, in our opinion, we do not
find any perversity and illegality in any of the findings of the Tribunal. We are
hence not persuaded to accept the contentions as urged on behalf of the
petitioner. It appears to be quite clear that the mother was residing in the
tenement after the demise of her husband in the year 2015. There is no
material on record that she has any other independent premises where she can
otherwise stay. It also appears that the petitioner had entered the premises
visiting the mother and later on refused to remove himself from the premises
and obtained occupation of the premises by creating circumstances to achieve
her removal from her own house. She could not have suffered a "living hell" in
her own house. The mother in such circumstances appears to have taken
shelter at the small tenement of her elder son Vijay, who is himself in difficult
financial situation. It appears that the petitioner also refused to maintain the
mother and provide her basic medical needs apart from food and clothing
requirements. Also there is no denial of the fact that the petitioner although
has his own tenement, the intention of the petitioner to oust the mother was to
create third party rights in respect of the tenement. There is no denial of such
case as pleaded in the reply affidavit. In our opinion, the above circumstances
are quite glaring and it was imperative and imminent for the Tribunal to
exercise jurisdiction under the act to pass an order directing the petitioner and
his wife to be removed from the premises.
30 January, 2024
2.WP7392_2021.DOC
24. The mother certainly deserves to be maintained from her own tenement.
The petitioner has no legal right whatsoever to oust the mother from her
tenement so as to make her roofless and/or deprive maintenance from her
tenement.
25. Insofar as the contention of the petitioner is concerned that merely
because a remedy of an appeal is not provided to the petitioner, section 16 of
the Act becomes arbitrary and illegal, is wholly untenable. A legislative
provision cannot be struck down on such count in the absence of any
substantive ground acceptable in law being made out by the petitioner, so as to
assail the provisions to be unconstitutional. The provisions also cannot
become bad only because the petitioner feels so. A right of an appeal is to be
conferred by law. The legislature in its wisdom has refrained from providing a
right of an appeal except to the senior citizens. In any event, it cannot be said
that the petitioner has no legal remedy.
26. For the aforesaid reasons, we find that no interference whatsoever is
called for in the impugned order. The petition is thoroughly misconceived. It
is accordingly rejected.
27. The petitioner is directed to vacate the premises within a period of 15
days from the day a copy of the order is made available, failing which, the
30 January, 2024
2.WP7392_2021.DOC
procedure in law to implement the order which is set into motion be taken
forward and the petitioner along with his wife be evicted from the premises.
28. Needless to observe that till such time, the vacant possession of the flat is
handed over to the mother, the petitioner is directed not to create any third
party right whatsoever or to part with the possession of the tenement.
29. Ordered accordingly.
30. No costs.
31. In view of disposal of Writ Petition, Interim Application does not
survive and the same is accordingly disposed of.
(FIRDOSH P. POONIWALLA, J.) (G. S. KULKARNI , J.)
Signed by: Vidya S. Amin
30 January, 2024
Designation: PS To Honourable Judge
Date: 30/01/2024 12:17:24
