Santosh Kumar Prajapati vs Pyarelal Prajapati
2021 Latest Caselaw 6193 MP

                                  1                               WP-20260-2021
        The High Court Of Madhya Pradesh
                   WP-20260-2021
      (SANTOSH KUMAR PRAJAPATI AND OTHERS Vs PYARELAL PRAJAPATI AND OTHERS)

3
Jabalpur, Dated : 29-09-2021
      Heard through Video Conferencing.
      Shri Ashok Kumar Jain, learned counsel for petitioners.
      Shri V. S. Choudhary, learned P.L for respondent/State.

Petitioners have filed this petition challenging order dated 31.8.2021 passed in appeal by respondent no.3 Collector, Jabalpur.

Learned counsel for petitioners submitted that respondent nos.1 & 2 had filed an application before S.D.M Jabalpur under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as 'the Act of 2007'). It is submitted by respondent nos.1 & 2 that they are having a house at Plot No.72/7 measuring about 6625 Sq.ft. Said property is self acquired property which was purchased by registered sale deed dated 2.5.1986 from one Alok Kumar Shrivastava. Respondent nos.1 & 2 made a prayer that petitioners are occupying the house of respondent nos.1 & 2. Respondent nos.1 & 2 allowed them to live in the house as petitioners were

not having house to live in. Now respondent nos.1 & 2 are in requirement of house for living but petitioners are refusing to vacate the house, therefore, order may be passed under Act of 2007. Learned counsel for petitioners further submitted that application filed by respondent nos.1 & 2 was not maintainable before S.D.M. Respondent nos.1 & 2 had not stated in their application that they are themselves unable to maintain themselves and further application under Act of 2007 can be filed against children as defined in Section 2(a) and relatives as defined under Section 2(g) of the Act of 2007. Petitioners do not fall within the definition of relative mentioned in Section 2(g) and, therefore, application filed by respondent nos.1 & 2 was not maintainable before S.D.M. SDM as well as Collector committed an error of law in passing order of eviction though application filed by respondent nos.1 2 WP-20260-2021 & 2 was not maintainable under Act of 2007. Learned counsel for petitioners prayed for grant of stay over order of Collector dated 31.8.2021 and submitted that if stay is not granted, petitioners may be evicted from the house. Learned counsel for petitioners submitted that respondent nos.1 & 2 are having a separate house to live i.e. House No.843, Gali Number-16, Behind Kali Mandir, Sadar Bazar, Jabalpur, therefore, eviction order may not

be passed against petitioners. Respondents ought to have filed application for eviction of petitioners under Common Law.

Learned counsel for Caveator appearing for respondent nos.1 & 2, on advance notice, has placed reliance on judgment passed by this Court reported in Amrita Bhatia and others vs. Baljeet Singh Bhatia and others, 2020 (2) MPLJ 516. On said judgment it was argued that exercise of right under Section 22 regarding protection of life or property of senior citizen has been conferred on District Magistrate irrespective of fact whether a person who threatens life or property of senior citizens is related to senior citizen or not. It is submitted by learned counsel for Caveator that issues raised by petitioners have been dealt with by Co-ordinate Bench of this Court in aforesaid case and he prayed for time to file reply and made a prayer for rejection of interim relief to petitioners.

Heard learned counsel for parties.

Learned counsel for petitioners has raised a ground that respondent nos.1 & 2, who are applicants before SDM have not pleaded in their application that they are unable to maintain themselves. Senior Citizen or parents are unable to maintain themselves is a ground which is to be considered while granting maintenance in their favour. Inability to maintain themselves is nothing to do in respect of protection of life of Senior Citizen and property. Learned counsel for petitioners also urged that petitioners do not fall within the definition of relatives mentioned in Section 2(g) of the Act of 2007. It is submitted that relatives means:-

"2(g). "relative" means any legal heir of the childless senior 3 WP-20260-2021 citizen who is not a minor and is in possession of or would inherit his property after his death."

Petitioner no.1 is brother of respondent no.1 Pyarelal Prajapati. Their grandfather namely; Rajaram Prajapati had an ancestral house i.e. House No.843, Gali Number-16, Behind Kali Mandir, Sadar Bazar, Jabalpur. There is specific finding of Appellate authority that said house has been entered in name of Jashoda, Rajaram, Chhagelal and Bankelal. From said description it is clear that House No.843, Gali Number-16, Behind Kali Mandir, Sadar Bazar, Jabalpur is ancestral property which belongs to both, petitioners and respondent no.1 and other relatives also have share in it, therefore, petitioners are not in exclusive possession and if they want to go and live in their self

acquired house then said right is to be protected. House in question has not been given on rent to petitioners. As petitioners were not having any house, therefore, respondent no.1 Pyarelal Prajapati permitted them to live in the said house. When respondent no.1 is demanding possession of the house, petitioners may not be permitted to take advantage of the age of senior citizen i.e. respondent nos.1 & 2 who are aged about 76 years and 65 years. In inquiry which was conducted by Executive Magistrate it was found that house in dispute was constructed by Pyarelal in year 1992-93 and he had purchased the same from one Alok Kumar Shrivastava by registered sale deed. Protection of life is a Fundamental Right and Protection of Property is Legal Right and Rule 19(2)(i) of M.P. Maintenance and Welfare of Parents and Senior Citizens Rules, 2009 provides that it shall be duty of District Magistrate to ensure that life and property of Senior Citizens of the district are protected. Petitioners may not be permitted to deprive respondent nos.1 & 2 who are senior citizens from using their self acquired property and District Magistrate is duty bound as per Rule 19(2)(i) to protect the property so that they are free to live in their house with security and dignity.

In view of aforesaid facts and circumstances of the case, prayer for interim relief is rejected.

4 WP-20260-2021 Learned counsel for Caveator is granted four weeks time to file reply to writ petition.

List the matter after four weeks.

(VISHAL DHAGAT) JUDGE

mms

Digitally signed by MONSI M SIMON Date: 2021.10.01 10:16:15 +05'30'