Narayan Kondiba Kolekar And Anr vs State Of Maharashtra And Anr
2025 Latest Caselaw 3449 Bom

Bombay High Court

Narayan Kondiba Kolekar And Anr vs State Of Maharashtra And Anr on 25 March, 2025

Author: Amit Borkar

Bench: Amit Borkar

2025:BHC-AS:13633
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                            AGK
                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                               CIVIL APPELLATE JURISDICTION

                                                  WRIT PETITION NO.16314 OF 2023


                              1. Narayan Kondiba Kolekar

     ATUL                     2. Smt. Sonabai Narayan Kolekar,
     GANESH
     KULKARNI                    Age 71 & 66, Senior Citizens,
     Digitally signed by
     ATUL GANESH
     KULKARNI
     Date: 2025.03.25
                                 Occupation Retired
     14:14:39 +0530
                                 having address at Room No.301,
                                 Kadsiddeshwar CHS.,Building No.05,
                                 Ram Lzaman Tekdi,T.J. Road,
                                 Sewree, Mumbai 400 015
                                 Currently residing at Solapur                  ... Petitioners

                                                          V/s.

                              1. The State of Maharashtra

                              2. Appellate Authority, Parents &
                                 Senior Citizen Welfare & Maintenance
                                 and Collector, Mumbai.

                              3. Rohini wd/o. Late Santosh Kolekar
                                 Age 37 years, Adult, Indian,
                                 residing at Room No.301
                                 Kadsiddeshwar CHS.,Building No.05,
                                 Ram Lzaman Tekdi,T.J. Road,
                                 Sewree, Mumbai 400 015                         ... Respondents



                            Mr. Shubham S. Upadhyay for the petitioner.
                            Mr. R.S. Pawar, AGP for respondent No.1.
                            Mr. Ashok M. Saraogi with Mr. Siddharth Singh for
                            respondent Nos.2 and 3.




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                           CORAM             : AMIT BORKAR, J.

                           RESERVED ON       : MARCH 10, 2025

                           PRONOUNCED ON : MARCH 25, 2025

 JUDGMENT:

1. The challenge in the present Writ Petition, filed under Articles 226 and 227 of the Constitution of India, is directed against the impugned Judgment and Order dated 21st June 2023 passed by the Appellate Tribunal constituted under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as the "Senior Citizens Act"). By the said impugned Judgment and Order, the Appellate Tribunal has been pleased to confirm the Judgment and Order dated 12th December 2022 passed by the Tribunal under the Senior Citizens Act, whereby the application preferred by the petitioners herein, seeking eviction of respondent No.3 from the premises in question, came to be rejected.

2. The subject premises in dispute is Room No.301, situated in Building No.5 of the Sewree Siddheshwar Co-operative Housing Society Ltd., located at Shri Ram Tekdi Path, T.J. Road, Sewree, Mumbai - 400 015. It is the specific case of the petitioners that the said premises is owned exclusively by petitioner No.1 and is a self- acquired property purchased from his own independent income and resources. It is further the case of the petitioners that after the untimely demise of their son, the said premises has remained the sole source of financial sustenance and livelihood for the petitioners in their advanced age. Alleging that respondent No.3,

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who is the daughter-in-law of petitioner No.1, is in unauthorized occupation of the said premises and that her continued occupation is adversely affecting the petitioners' right to residence and maintenance, an application was preferred under the provisions of the Senior Citizens Act seeking her eviction.

3. The said application was vehemently opposed by respondent No.3. In her written reply, she contended that her husband, who was the son of petitioner No.1, passed away on 15th April 2021 due to complications arising from the COVID-19 pandemic. She further averred that she has two minor children who are presently attending school, and the entire burden of raising and supporting them has fallen solely upon her shoulders. It was her case that petitioner No.1, being a retired government servant, is now residing at his native place and had earlier expressed an intention to sell the premises in question following the death of his son. She submitted that she has no other alternate accommodation and that she, along with her children, has been residing in the said premises for the past several years. Hence, she prayed that the application seeking her eviction be dismissed.

4. Upon considering the rival submissions and material placed on record, the Tribunal was of the opinion that respondent No.3 does not possess any alternate residential accommodation and that she is solely responsible for the care and upbringing of her minor children. In view of the peculiar facts and circumstances, and taking into consideration the need to ensure welfare of both the senior citizens and the daughter-in-law with minor children, the Tribunal opined that the dispute between the parties ought to be

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resolved amicably and accordingly declined to grant the relief of eviction as sought by the petitioners.

5. The Appellate Tribunal, while upholding the findings of the Tribunal below, observed that there are multiple litigations pending between the parties, indicating a prolonged familial discord. It was noted that respondent No.3, being the widowed daughter-in-law of petitioner No.1, has been residing along with her children in the premises for the last seventeen years and, therefore, it would not be just, proper, or equitable to direct her eviction, particularly in absence of any immediate and reasonable alternate accommodation. The Appellate Tribunal further recorded that petitioner No.1 is a retired government servant drawing pension and is not in such indigent condition so as to necessitate maintenance under the provisions of the Senior Citizens Act. Hence, the Appellate Tribunal concurred with the view of the Tribunal below that the dispute requires resolution through mutual settlement rather than coercive eviction, and accordingly dismissed the appeal.

6. Rival submissions of the learned counsel for the respective parties now fall for consideration. This Court has carefully perused the impugned orders passed by the Tribunal as well as the Appellate Tribunal, and also examined the pleadings and material placed on record.

7. At the outset, it is necessary to advert to the legal position settled by the Hon'ble Supreme Court in the case of S. Vanitha v. Deputy Commissioner, Bengaluru Urban & Ors., reported in (2021)

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15 SCC 730. In paragraph 25 of the said decision, the Hon'ble Apex Court has categorically held that the Maintenance Tribunal under the provisions of the Senior Citizens Act is vested with the authority to direct eviction, if such a measure is found to be necessary and expedient to ensure the maintenance and protection of senior citizens. The Hon'ble Court observed that eviction may be an incident of enforcement of the right to maintenance and protection conferred upon senior citizens. However, such relief is not to be granted mechanically. The Tribunal is required to carefully weigh and balance the competing rights and equities of the parties, particularly when the respondent, who is sought to be evicted, may also be claiming protection under other legislations such as the Protection of Women from Domestic Violence Act, 2005 ("PWDV Act").

8. In the present case, it is not in dispute that petitioner No.1 is the absolute and undisputed owner of the premises in question, it being his self-acquired property. The petitioners have clearly pleaded that after the unfortunate demise of their son, the said premises has remained the only means of securing financial support and shelter in their advanced age. The petitioners specifically pleaded that the property was required for their own use and sustenance, and respondent No.3 had no legal right to occupy the same. The record further indicates that the Appellate Tribunal, while upholding the order of the Tribunal, had merely recorded in passing that petitioner No.1 is receiving pension, and hence, is not in need of maintenance. However, it appears from respondent No.3's own reply that petitioner No.1 had resigned

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from Central Government service and is residing at his native place. In such circumstances, it was incumbent upon respondent No.3 to place on record cogent and credible material to demonstrate that petitioner No.1 was indeed receiving pension and was financially self-sufficient, thereby disentitling him from claiming eviction for the purpose of his own maintenance. In the absence of such material, the finding recorded by the Appellate Tribunal in that regard cannot be sustained.

9. At this stage, it is imperative to consider the binding precedent of the Supreme Court in S. Vanitha v. Deputy Commissioner, Bengaluru Urban District & Ors., reported in (2021) 15 SCC 730. In the said case, the Apex Court was considering a dispute between senior citizen parents-in-law and their daughter- in-law, wherein the parents-in-law had sought eviction under the provisions of the Senior Citizens Act. The Supreme Court held that while the Tribunal constituted under the Senior Citizens Act may have the authority to direct eviction, such a power must be exercised judiciously and only where it is necessary and expedient to ensure the maintenance and protection of the senior citizen. The Court explained that eviction, in such cases, would be an incident of the right to maintenance and protection and not a remedy in rem.

10. The Supreme Court, however, also recognized that where the property in question is a shared household under the provisions of the Protection of Women from Domestic Violence Act, 2005 (PWDV Act), and both parties claim protection under competing welfare legislations, the Tribunal is required to take into account

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the rival and overlapping statutory rights and mould the relief accordingly. The Court held that in such a situation, it would not be appropriate to mechanically direct eviction without adjudicating or at least providing reasonable time for adjudication of the rights of the party claiming residence under the PWDV Act.

11. Drawing inspiration from the aforestated observations of the Supreme Court, a Division Bench of this Court in Anjana Niranjan Jasani v. Ritika Prashant Jasani & Ors., in Writ Petition (L) No.13291 of 2022, decided on 20th October 2022, adopted a balanced approach and granted a period of six months to the daughter-in-law to get her rights adjudicated under the PWDV Act. The Division Bench emphasized the need to reconcile the coexisting rights of a senior citizen to peaceful possession of his property and the rights of a woman in a domestic relationship under the PWDV Act, and to ensure that the adjudicatory framework under both statutes is meaningfully implemented.

12. The impugned orders, therefore, are unsustainable in law and warrant interference by this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India. At the same time, this Court is cognizant of the fact that respondent No.3 is a widowed daughter-in-law with minor children and may be entitled to claim appropriate reliefs under the PWDV Act, 2005.

13. Hence, the interests of justice would be served by granting reasonable time to respondent No.3 to approach the appropriate forum under the PWDV Act, if so advised, and to seek necessary protection or reliefs, if she is so entitled in law.

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14. In view of the aforesaid reasons and discussion, the impugned Judgment and Orders passed by the Tribunal dated 12th December 2022 and by the Appellate Tribunal dated 21st June 2023 are hereby quashed and set aside.

15. The application filed by the petitioners under the Senior Citizens Act seeking eviction of respondent No.3 is allowed.

16. Respondent No.3 is granted a period of six (6) months from the date of this judgment to vacate and hand over vacant and peaceful possession of the premises in question to the petitioners.

17. During this interregnum, respondent No.3 shall be at liberty to assert her rights, if any, under the provisions of the Protection of Women from Domestic Violence Act, 2005 before the appropriate forum.

18. In the event such proceedings are initiated, the appropriate authority or Court shall decide the same on its own merits and in accordance with law, uninfluenced by any observations made in the present judgment. The enforcement of the eviction order shall be subject to any interim protection granted by such forum in accordance with law.

19. The Writ Petition stands disposed of in the aforesaid terms. There shall be no order as to costs.

(AMIT BORKAR, J.)