Smt. Archna Sharma vs The State Of Madhya Pradesh
2023 Latest Caselaw 12877 MP

                                                           1
                           IN    THE      HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                     BEFORE
                                       HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                                              ON THE 9 th OF AUGUST, 2023
                                            WRIT PETITION No. 7695 of 2022

                          BETWEEN:-
                          SMT. ARCHNA SHARMA W/O SHRI RAJESH SHARMA,
                          AGED ABOUT 62 YEARS, OCCUPATION: RETIRD
                          EMPLOYEE HOUSE NO. 69 VAISHALI NAGAR KOTRA
                          SULTANABAD THANA KAMLA NAGAR DIST. BHOPAL
                          MP (MADHYA PRADESH)

                                                                                    .....PETITIONER
                          (BY SHRI AMAN PATEL - ADVOCATE)

                          AND
                          1.    THE STATE OF MADHYA PRADESH THROUGH
                                COLLECTOR DIST. BHOPAL MP (MADHYA
                                PRADESH)

                          2.    SUB DIVISIONAL OFFICER, T.T. NAGAR CIRCLE
                                B H O PA L DISTRICT- BHOPAL, M.P. (MADHYA
                                PRADESH)

                          3.    RAJESH SHARMA S/O LATE SHRI MADHAV
                                PRASAD SHARMA, AGED ABOUT 61 YEARS,
                                OCCUPATION: RETIRED EMPLOYEE R/O HOUSE
                                NO. 69, VAISHALI NAGAR, KOTRA SULTANABAD,
                                THANA KAMLA NAGAR, DISTT. BHOPAL, M.P.
                                (MADHYA PRADESH)

                                                                                 .....RESPONDENTS
                          (BY SHRI SOURABH SINGH THAKUR - ADVOCATE)

                                Reserved on : 31.07.2023
                                Delivered on :09.08.2023
                                Th is petition coming on for hearing this day, th e court passed the
                          following:
                                                           ORDER

Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 8/11/2023 6:10:58 PM

This petition is filed by the petitioner under Article 226 of Constitution of India questioning the legality, validity and propriety of orders dated 10/01/2022 (Annexure-P-3) and 02/02/2022 (Annexure-P-4).

The Sub Divisional Officer vide order dated 10/01/2022 has entertained the application of respondent no.3, in which he has sought eviction of petitioner who is his wife and also of his son. It is stated in his application that he is a retired bank officer and constructed a house at Vaishali Nagar in the year 2009 by his own income and taking loan from the bank. In the said house his wife namely Archna Sharma and his elder son Apoorva Sharma are also residing. It is stated that the present petitioner is also a retired railway officer and getting a

handsome amount of pension. She has purchased a house in her name at Mandideep in Sheetal Homes Colony. According to respondent no.3, present petitioner has movable and immovable property in her name but he had no information about the same. One of his sons is also residing at Delhi and serving there. He has also stated that in the year 2007 he has purchased a Wagnor car but that is also being used by his wife and his son.

It is stated by respondent no.3 before the Sub Divisional Officer that the present petitioner and her son has made the life of respondent no.3 measurable. He alleged that his wife and son both fight against respondent no.3 for no reason and they are in the habit of humiliating him in all manner. He has apprehended that the present petitioner and her son have an intention to grab his house and, therefore, they are making all efforts to throw him out from the said house. The respondent no.3 has also alleged that his wife always used to threat that she would implicate him in a false case of women crime. According to him, the wife and son are creating trouble for him and he is being ill-treated by

Signature Not Verified them. He submits that he is physically very weak and needs help from Signed by: SUSHMA KUSHWAHA Signing time: 8/11/2023 6:10:58 PM

somebody but the petitioner and her son are not allowing any of his relative to come and help, as such he approached the Sub Divisional Officer asking eviction of his wife and son from his house.

T h e Sub Divisional Officer initiating proceeding under the provision of Maintenance and Welfare of Parents and Senior Citizen Act, 2007 (for brevity "Act, 2007") passed an order directing petitioner and her son to vacate the house of respondent no.3. It was also directed that if house is not vacated within a period of one month then it will be vacated forcefully by taking police help. The appeal was preferred against the said order before the Collector and the same was dismissed by order dated 02/02/2022.

By this petition the order passed by the authorities have been assailed mainly on the ground that the house in question does not belong to respondent no.3 exclusively but the petitioner being a wife and son also have right over the property of respondent no.3 and as such order of eviction against them cannot be passed. It is also contended by counsel for the petitioner that it is a dispute between husband and wife and, therefore, the same cannot be entertained under the provision of 'Act, 2007'. It is also contended that provision of 'Act 2007' cannot be used for the purpose of eviction and as such according to him order of eviction cannot be secured under this Act.

Shri Sourabh Singh Thakur, counsel appearing for the respondents have

submitted that the order passed by Sub Divisional Officer and also by Collector cannot be disturbed because the same are based upon the finding of fact and it is concurrent finding, therefore, only on the basis of submissions it cannot be set-aside unless petitioner is able to prove that the finding is perverse. He submits that under the circumstances as has been considered by both the Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 8/11/2023 6:10:58 PM

authorities the order of eviction can be passed against the petitioner and her son because respondent no.3 being a senior citizen has no other efficacious remedy to take recourse of the provision of 'Act 2007' which has been made for this purpose only.

Considering the submission of counsel for parties and perusal of record, I am of the opinion that the order passed by Sub Divisional Officer directing eviction of petitioner and her son from house of respondent no.3 does not suffer from any material illegality and irregularity. The order of eviction can be passed by the authority under the provision of 'Act 2007'.

The SDO after hearing the submissions of both the parties has also called a report from revenue inspector who after conducting the enquiry to ascertain the correctness of the allegations made by the parties against each other, submitted the report. The Sub Divisional Officer considering the over all circumstances has observed that the dispute between the parties is in respect of the house no.69 situate at Vaishali Nagar where both the parties are residing together. Although, they have three houses and one of the house is in the name of present petitioner/wife situate at Mandideep in Sheetal Homes colony. The Sub Divisional Officer has also observed that it is better and interest of both the parties to reside separately and also consider the basic object of Act, 2007 and then passed the order.

I have perused the order of Sub Divisional Officer and in my opinion nothing wrong has been observed by the SDO and his decision does not suffer from any illegality but on the contrary, it is based upon upon very sound reasoning taking note of the existing circumstances.

This aspect has been considered by the Supreme Court in a case reported in AIR online 2020 SC 897 (Smt. S.vanitha Vs. Dy.Commissioner, Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 8/11/2023 6:10:58 PM

Bengaluru Urban District and others) and also by the High Court in case of Smt.Amrita Bhatia and others Vs. Baljeet Singh Bhatia and others passed in M.P.No.5217/2019 and in case of Vijay Kumar Saraswar Vs. State of M.P.and others passed in W.P.No.2293/2021.

The Division Bench in Writ Appeal No.214/2021 (Ganesh and another Vs.Smt.Indu Bai and others) has also laid down a law that the order of eviction can also be passed under the provision of 'Act 2007'. For ready reference relevant portion is reproduced as under:

13. So far as the argument of learned counsel for appellants that the Tribunal is not empowered under the Act of 2007 to pass an order of eviction is concerned, the same does not have any substance and deserves to be rejected under the facts of the present case. In para 4 to 6 of the application, submitted by the respondent No.1 before the Tribunal, the following averments have been made :-

"4.;g fd Lo- ukenso dh e`R;q fnukad 13-08-2018 dks gksus ds ckn ls vkosnd dza 1 dk iq= x.ks'k 'kjkc ihus dk vkfn gks x;kA vk;s fnu x.ks'k o mldh iRuh pank okn fookn djus yxhA edku esa jgus ugha nsrsA x.ks'k is'kau dk iSlk Hkh pkdw vM kdj NqM k ysrk gSA yxkrkj ekjihV o nwO;Zogkj dj jgs gSA vc rks gn dj fn;k gSA8nksuksa ofj"B ukxfjdksa dks izrkfMr dj edku ls ckgj dj fn;k gS] tcfd edku esa mudk dksbZ gd ugha gSA 5- ;g fd fnukad 20-11-2019 dks ekjihV dj ?kj ls fudkyus ij vkosndx.k flVh dksrokyh [kaMok esa fjiksVZ djus x;s Fks] ijUrq iqfyl }kjk muds fo:) izfrca/kkRed dk;Zokgh dj ,lMh,e U;k;ky; esa is'k fd;k x;k FkkA TkgkW mUgsa tekur djuh iM h FkhA bldh f'kdk;r dysDVj egksn; ,oa iqfyl v/kh{kd egksn; dks Hkh dh x;h FkhA 6- ;g fd izkFkhZx.k o`) o uun gSA Lo- ukenso ds lkFk edku esa jgrh FkhA isa'ku ls xqtkjk djrh gSA ?kj ls fudkyus ds ckn fj'rsnkjksa ds ;gkW jg jgh gSA x.ks'k o mldh iRuh ls mUgsa tku dk [krjk gS] izrkfM r os nqO;Zogkj djrs gSA vr% vijksDr vk/kkjksa ij Jheku~ ls fouez fuosnu gS fd mUgsa fuEu lgk;rk iznku djus dh d`ik djsaA **

14. It is, thus, seen that the respondent No.1 was requesting for right of "residence" in her own house. The object of the Act of 2007 not only includes maintenance, provision for food, clothing, medical assistance and treatment, but it also includes provision for "residence". Moreso, the respondents were ousted from the house in question by the appellants depriving them to enjoy the right of "residence" and, therefore, taking into consideration the overall object of the Act of 2007, it cannot be said that the order passed by the Tribunal is illegal or improper.

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 on an application filed by her father-in-law. There was matrimonial dispute between the husband and wife and it was the Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 8/11/2023 6:10:58 PM

case of the daughter-in-law that at the instance 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.

Taking note of law laid down by the Supreme Court in case of S.Vaneeta (supra) followed by Division Bench in case of Ganesh(supra), I do

not find any infirmity in the orders passed by Sub Divisional Officer and also by the Collector Bhopal. The petition being without any substance is hereby dismissed. The District Magistrate Bhopal is directed to implement the order of eviction within a period of one month and make sure that the petitioner and her son be evicted from the house belonging to the petitioner and if any police assistance is required he may take so.

Accordingly, petition is dismissed.

(SANJAY DWIVEDI) JUDGE sushma

Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 8/11/2023 6:10:58 PM