Anil Kumar Tiwary vs The State Of Jharkhand
2021 Latest Caselaw 1214 Jhar

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 W.P.(C) No. 3950 of 2020

1. Anil Kumar Tiwary
2. Neelam Tiwary                            ...      ...     Petitioners
                                 Versus
1. The State of Jharkhand
2. Lallan Tiwary                            ...      ...     Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioners : Mr. Sanjay Kumar Thakur, Advocate For the Respondent No. 1 : Mr. Darshana Poddar Mishra, AAG-I For the Respondent No. 2 : Mr. Vikash Kumar, Advocate

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Order No. 04 Dated: 10.03.2021

The present writ petition is taken up today through Video conferencing.

The present writ petition has been filed for setting aside the order dated 19.10.2020 (Annexure-3 to the writ petition) passed by the Sub-Divisional Magistrate, Ranchi in MAWOPASC Case No. 01 of 2020, whereby the application filed by the respondent no. 2 (the father of the petitioner no. 1 and father-in-law of the petitioner no. 2) under Section 22(2) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as "the Act, 2007") has been allowed and the petitioners have been directed to vacate Quarter No. CD/589, OHC, Russian Hostel, Vidhan Sabha, P.S - Jagarnathpur, District - Ranchi (hereinafter referred to as "the said quarter").

2. The learned counsel for the petitioners submits that the respondent no. 2 was an employee of Heavy Engineering Corporation (HEC), Ranchi and got the said quarter on a long term lease (LTL), who is residing in the same alongwith the petitioners and other family members. It is further submitted that in the year 2007 when the said quarter was allotted to the respondent no. 2, the same was not in a habitable condition and the petitioners by dint of their labour made it fit to reside. It is also submitted that a cousin of the petitioners namely, Shailesh Kumar Tiwary started residing in the said quarter for education purpose, but later on, he started instigating the respondent no. 2 to evict the petitioners from the said quarter due to which the

respondent no. 2 started pressurizing the petitioners to leave the same. It is further submitted that the petitioners have two children who are studying in a reputed local school. The petitioner no. 1 is the employee of an outsource company of HEC, Ranchi and his earning is only Rs. 8000/- per month which is not sufficient to maintain the petitioners and their children. It is also submitted that the respondent no. 2 filed an application before the Sub-Divisional Magistrate, Ranchi under Section 22(2) of the Act, 2007 praying inter alia for issuance of direction upon the petitioners to vacate the said quarter which is his self-acquired property. The Sub-Divisional Magistrate, Ranchi ordered an enquiry through his officers who submitted the report disclosing that no physical violence was perpetrated against the respondent no. 2 by the petitioners. However, the learned Sub-Divisional Magistrate, Ranchi passed the impugned order dated 19.10.2020 directing the petitioners to vacate the said quarter within 15 days of the said order. It is further submitted that the petitioner no. 1 has no other means of livelihood except his salary and as such, he is not in a position to hire a separate house. It is also submitted that the petitioners have every right to live with honour and dignity in the said quarter.

3. Heard the learned counsel for the petitioners and perused the materials available on record. On perusal of the impugned order, it appears that the respondent no. 2 is a 70 years old person. He is also an ex-service man and a retired employee of HEC, Ranchi. The said quarter is a self-acquired property of the respondent no. 2. In the enquiry, though the evidence of physical violence was not found, however, it surfaced that the petitioners used to inflict mental torture upon the respondent no. 2. The facts as narrated in the impugned order has not been controverted by the petitioners before this Court by bringing on record any contrary material. They are, however, claiming right to live in the said quarter on the ground that the earning of the petitioner no. 1 is not sufficient to hire separate house and the petitioner no. 2 being the daughter-in-law has right to live in the said house with full dignity.

4. The learned counsel for the petitioners puts reliance on the judgment of the Hon'ble Supreme Court rendered in the case of

"Smt. S. Vanitha Vs. The Deputy Commissioner, Bengaluru Urban District & Ors." reported in 2020 Scc Online SC 1023. I have perused the said judgment. The fact in the said case is that the spouse of the appellant purchased a land in his own name a few months before the marriage, but subsequently sold it 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 case was instituted by the spouse of the appellant. Parallel to this, the appellant instituted case for dowry harassment against her mother-in-law and her estranged spouse. The appellant also filed a case for maintenance against her husband. Subsequent to these events, the father-in-law and mother-in-law filed an application before the Assistant Commissioner, Bengaluru North Sub-division at Bengaluru under the provisions of the Act, 2007. The said application was allowed in favour of the father-in-law and the mother-in-law of the appellant by the Assistant Commissioner, Bengaluru North Sub- division at Bengaluru as an original authority. Thereafter, the appellant (daughter-in-law) preferred an appeal against the order of the Assistant Commissioner, Bengaluru before the Deputy Commissioner, Bengaluru district as an appellate authority, which was dismissed. The writ petition filed by the appellant before the learned Single Judge as well as the appeal filed before the learned Division Bench of the High Court were also dismissed. Thereafter, the matter went up to the Hon'ble Supreme Court wherein Their Lordships in paragraph-9 of the aforesaid judgment have held as under:

9. This Court is cognizant that the Senior Citizens 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 Courts, under Section 8. The jurisdiction of the Civil Courts has been explicitly 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 S.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 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.

5. The Hon'ble Apex Court in the said case has also held that the Tribunal constituted under the Act, 2007 has the authority to order an eviction if it is necessary and expedient to ensure maintenance and protection of the senior citizens or the parents. However, this relief can be granted only after noticing the competing claims of the parties in the dispute. It is true that one cannot be allowed to take benefit of any provision under a statute just to deprive the other from availing benefit of other statute. The provisions of a particular Act should be applied in harmony with any other Act.

6. The facts and circumstances of the present case is entirely different from the facts of the aforesaid case. In the present case,

there is no such matrimonial dispute between the petitioners. Moreover, the said quarter has not been transferred to the respondent no. 2 just to oust the petitioner no. 2 from the said quarter taking advantage of the provisions of the Act, 2007. Rather, the fact is that the petitioners being the husband and wife are conjointly fighting with the respondent no. 2. It is also not a case where only the petitioner no. 2 is being ousted from the matrimonial home so as to deprive her of the rights available under the Protection of Women from Domestic Violence Act, 2005. On the contrary, the allegation of the respondent no. 2 is that the petitioners have been subjecting mental torture to him and thus, he wants to evict both his son and daughter-in-law from his self-acquired quarter.

7. In view of the aforesaid factual and legal position, I do not find any infirmity in the order dated 19.10.2020 passed by the Sub-Divisional Magistrate, Ranchi in MAWOPASC Case No. 01 of 2020 so as to make any interference under the writ jurisdiction.

8. The writ petition being devoid of merit is accordingly dismissed.

(Rajesh Shankar, J.) Manish/AFR