Smt. Shilpi vs Smt. Shakuntala
2022 Latest Caselaw 13896 MP

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        IN THE HIGH COURT OF MADHYA PRADESH
                      AT INDORE
                           BEFORE
             HON'BLE SHRI JUSTICE VIVEK RUSIA
                              &
      HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)

                WRIT APPEAL No. 952 of 2022

  BETWEEN:-
   SMT. SHILPI W/O SHRI LALIT SHRIVASTAVA, R/O 179
1. JAGANNATH KI CHAL, 162,162-1, CHITAWAD ROAD,
   INDORE (MADHYA PRADESH)
   LALIT SHRIVASTAVA S/O SHRI GOPILAL SHRIVASTAVA,
2. R/O 179, JAGANNATH KI CHAL, 162, 162-1, CHITAWAD
   ROAD, INDORE (MADHYA PRADESH)
                                            .....APPELLANTS
  (SHRI MANISH YADAV, LEARNED COUNSEL FOR THE APPELLANT).


  AND
   SMT. SHAKUNTALA W/O LATE SHRI SHANTIPRAKASH
   SAXENA, AGED ABOUT 90 YEARS, OCCUPATION: NIL,
1.
   R/O 179, JAGANNATH KI CHAL, 162, 162-1, CHITAWAD
   ROAD, INDORE (MADHYA PRADESH)
   STATE OF MADHYA PRADESH THROUGH JILA
2.
   COLLECTOR MOTI TABEL, INDORE (MADHYA PRADESH)
   ANUVIBHAGEEYA DANDADHIKARI COLLECTOR OFFICE,
3.
   MOTI TABELA, INDORE (MADHYA PRADESH)
                                           .....RESPONDENTS
  (SHRI V.P. SARAF, SENIOR COUNSEL ALONGWITH SHRI YASH
  TIWARI,LEARNED COUNSEL FOR THE RESPONDENT NO1.)
  (SHRI AADITYA GARG, LEARNED COUNSEL FOR THE RESPONDENT
  NO.2 AND 3. ).

This appeal coming on for orders this day, JUSTICE VIVEK
RUSIA passed the following:
     Heard on          -    12.10.2022
     Order passed on   -     28 .10.2022
                           ORDER

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Appellants ( hereinafter referred to as respondents No.3 and

4) have filed the present writ appeal being aggrieved by the order dated 26.07.2022 whereby Writ Court has allowed the Writ Petition No.3561/2022 filed by respondent No.1( hereinafter referred to as the writ petitioner ).

[2] The writ petitioner who is aged about 90 years, approached the Sub Divisional Magistrate, Indore by way of an application under Section 5 of Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereafter referred to as ''the Act 2007'') seeking relief to the effect that respondents No.3 and 4 be directed to vacate the house No.179, her house situated at Jagannath Ki Chaal, 162- 162-1 Chitawad Road, Indore ( The house in question). The Sub Divisional Officer has dismissed the application. Being aggrieved by the order Sub Divisional Magistrate, the Writ Petitioner filed an appeal before the Collector under Section 16 of the Act and the same was dismissed vide order dated 18.01.2022. Hence this writ appeal before this Division Bench of this High Court. [3] Undisputably, the writ petitioner is an exclusive owner of the house in question. The grievance of the writ petitioner before the Sub Divisional Magistrate was that after the death of her husband, the respondent No.3 and 4 who are residing in the house in question along with her are creating a nuisance and cruelty to her, which made her impossible live in her own house and despite repeated request they are not willing to vacate the house. She made complaints to IG and DIG but no action was taken.

[4] Respondent No.3 and 4 appeared before the Sub Divisional Magistrate raising the objection that Shilpi/respondent No.3 was adopted by Late Shanti Prakash Saxena and she performed her

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marriage with Lalit/respondent No.4 on 26.01.2006. They are residing in the house with the writ petitioner and taking care of her well. The said house was purchased by the late Shanti Prakash Saxena during his lifetime from his own income. After his death, the name of the writ petitioner was mutated which they did not object. When Shanti Prakash become ill, they spent Rs. 5 lacs for treatment. They are living peacefully with her for 30 to 35 years. All of sudden the nephew of the writ petitioner i.e. Sudhir Saxena and his family members created a rift between them and under his influence, the writ petitioner, who is aged about 90 years pressured them to vacate the house. Sudhir Saxena has got executed a will dated 25.02.2021 in his favour. They have also filed a Civil Suit challenging the said will which is still pending before the Civil Court.

[5] Learned counsel for respondent No. 3&4 submitted that the learned Sub Divisional Magistrate and Collector both have dismissed the application as well as an appeal mainly on the ground that under the Act, 2007 only an order of maintenance can be passed in favour of senior citizens or parents but the order of eviction cannot be passed. The Writ Court vide impugned order dated 26.07.2022 while relying on the judgment passed by the Coordinate Bench in M.P. No.5217/2019 (Smt. Amrita Bhatia Vs. Manjeet Bhatia and others) has directed appellants to vacate the house in question within two months from today.

[6] Shri Manish Yadav, learned counsel for the appellants has placed reliance on the judgment passed by Apex Court in the case of Smt. S. Vanitha Vs. The Deputy Commissioner, Bengaluru Urban District & Ors reported in 2020 SCC OnLine SC 1023 in

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which the Apex Court held that no order of eviction can be passed under the Act, 2007.

[7] Shri Saraf learned senior counsel for the writ petitioner has placed reliance on the judgment passed by the Division Bench of this Court in the case of Ganesh & Another Vs. Smt. Indu Bai (W.A. No.214/2021) in which the Division Bench after considering the judgment passed in the case of Smt. S. Vanitha (Supra) has held that the object of the Act, 2007 not only includes maintenance, provision for food, clothing, medical assistance and treatment but it also includes the provision of '' residence''. Moreso, the respondents therein were ousted from the house in question by the appellants depriving them to enjoy the right of ''residence'', hence, the order of the tribunal is not illegal or improper. Learned senior counsel has relied on the case of Sunny Paul Vs. State of NCT (2018) DLT 410 (DB), in which the Division Bench of the High Court of Delhi has held that liberal interpretation should be given to achieve the mandate of the Act of 2007 i.e for the welfare of the parents and senior citizens and the protection of their life and property, there is no doubt that the Tribunal does have the jurisdiction to direct vacation by the children of any property in which the senior citizen has a right of residence/possession. It is further submitted by the learned senior counsel the effect of the law laid down in the case of Smt. S. Vanitha (Supra) has already been considered by the Division Bench of this High Court in the case of Ganesh & Another Vs. Smt. Indu Bai (W.A. No.214/2021) and has held that

15. So far as the judgment relied upon by learned counsel appearing for appellants in the case of S. Vanitha (supra) is concerned, the same would not have any application in the present facts and circumstances of the case. In the case of S. Vanitha (supra), the order of eviction was passed against daughter-in-law

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on an application filed by her father-in-law. There was matrimonial dispute between the husband and wife and it was the case of the daughter-in-law that at the instance 9 of her husband, her father-in- law resorted to malicious proceeding with the sole intent to evict her from the suit premises. She claimed that proceedings were collusive in nature and was an attempt by her husband and father- in-law to evict her from her matrimonial home. The Hon'ble Supreme Court has considered the provisions of Protection of Women from Domestic Violence Act, 2005 which provides for various protection to a woman in juxtaposition to the provisions of the Act of 2007. The Hon'ble Supreme Court has noted that a significant object of the legislation under the Act of (Domestic Violence Act) is to provide for and recognize the rights of woman to secure housing and to recognize the rights of a woman to reside in a matrimonial home or a share household, whether or not she had any title or right in the shared household and the law protecting the interest of senior citizen is intended to ensure that they are not left destitute or at the mercy of their children or relatives. Equally, the purpose of the Act of 2005 cannot be ignored. Both sets of legislation have to be harmoniously construed. The right of a woman to secure a residence, order in respect of a shared household cannot be defeated by the simple expedient of securing an order of eviction by adopting the summary procedure under the Act of 2007. It is under the aforesaid facts and circumstances of the case, an interference was made by the Hon'ble Supreme Court against the order of eviction passed by the Tribunal against daughter-in-law, namely, S. Vanitha (supra) in that case. The facts of the present case are not the same and, therefore, the principle laid down in the case of S. Vanitha (supra) would not be applicable.

In view of the above prayed for the dismissal of the writ appeal Heard [8] It is not in dispute that the writ petitioner is an absolute owner of the house in question. She has executed a will in favour of Sudhir Saxena. Whether respondent No.3 was adopted by the late husband of the writ petitioner is a matter of evidence. Respondents No. 3 & 4 have already approached the Civil Court seeking such a declaration and challenging the validity of the will, therefore, when the appellants have instituted civil litigation against the 90 years old lady, thus it would not be desirable for her to share a common house with them. The writ petitioner being an absolute owner of the

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house has the exclusive right to decide who should live in the house with her. In case of the Ganesh and another (supra), the Division Bench has maintained the order of eviction of a real son and daughter-in-law from the house by observing that the intention of the legislature is to ensure that the parents and senior citizens should be ensured food, clothing, medical assistance and treatment etc. and which have an overriding effect on the provisions any other enactment. When this Court has held that even the son and daughter-in-law have no right to reside in the house with their parents as they are not properly taking care of them, then in the present case, the appellants have no blood relation with the Writ Petitioner. Respondent No.3 is claiming the status of the adopted daughter of Late Shanti Prakash and the writ petitioner that is required to be established before the Civil court. [9] In view of the above, we have no reason to take a different view as taken by the Division Bench of this Court (supra). Accordingly, Writ Appeal is hereby dismissed.

                      (VIVEK RUSIA)                   (AMAR NATH (KESHARWANI))
                          JUDGE                                 JUDGE


                      praveen


Digitally signed by
RAVI PRAKASH
Date: 2022.10.29
11:37:40 +05'30'