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CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10659 OF 2023
Govind Laxman Bawkar, Age 75, Occupation Retired, Residing at Room No. 2, Thakur Chawl, Vakola Police Station Road, Santacruz
East, Mumbai - 400 055.
… Petitioner vs.
1. Mrs. Pramila Prakash Sodye, Aged 42 years, Occu. Housewife
Residing at Pruthvi Apartment, Building No. 8, Room No. 402, Manvel Pada Road, Virar (East), 401 305.
2. Mr. Prakash Sakharam Sodye, Age 52 years, Occu. Service
3. Mr. Prasad Prakash Sodye, Age, 24 years, Occu. Service, 4. Mr. Sanjay Govind Bawkar, Age – 35 years, Occu. Service, Residing at Room No. 2, Thakur Chawl,
5. Chandrakant Govind Bawkar, Age- 52 years, Occp. Service, Om Saikrupa Chawl, Mukti Nagar, Govandi, Mumbai – 400 071.
6. The Sub-Divisional Officer alias
Presiding Officer, Parents & Sr. Citizen Maintenance
Tribunal, 9th
Floor, Administrative Building, Government Colony, Bandra East, Mumbai – 400 051.
7. The Addl. Collector alias Presiding
Officer, Parents & Sr. Citizen Maintenance
Appellate Tribunal, 9th
Floor, Administrative Building, Government Colony, Bandra East, Mumbai – 400 051.
8. The State of Maharashtra … Respondents
Mr. Vijay Kurle, a/w, Ravindra Bhosale & Vikas Pawar, for
Petitioner.
Mr. Subhash Bane, a/w Titiksha Phadnis, for respondent nos. 1 to 5.
Mr. A. C. Bhadang, AGP, for respondent nos. 6 to 8.
ORAL JUDGMENT
1. As per the order dated 19th March 2024, this petition is finally heard at the admission stage. This petition is filed to challenge an order of 12th April 2021, passed by the Tribunal under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (‘the Senior Citizens Act’) dismissing the petitioner’s application filed under Section 5 of the Senior Citizens Act and order dated 24th August 2022 passed by the appellate authority under the Senior Citizens Act dismissing the petitioner’s appeal. Respondent no. 1 is the daughter of the petitioner. Respondent no. 2 is son-in-law. Respondent no. 3 is son of respondents nos. 1 and 2. Respondents nos. 4 and 5 are sons of the petitioner.
2. Learned counsel for the petitioner submitted that the subject premises is a residential structure situated in a slum area, and the same stands in the name of the petitioner. He submitted that the petitioner was residing in the subject premises along with his wife, who expired during the pendency of the apeal before the Appellate Tribunal. The petitioner has retired from his service at the municipal corporation and is receiving pension. The subject premises is the only available premises for the petitioner’s residence. He submitted that during the pendency of the petition, respondent nos. 1 to 3 had vacated the premises, and respondent no. 5 had already vacated the premises earlier. However, respondent no. 4 and his family are still residing in the suit premises.
3. The learned counsel for the petitioner submitted that the petitioner had helped his sons to buy their own house, and all of them have alternative premises of their own. He intended to reside peacefully in his own house after retirement. However, due to the quarrels between the family members and the mental harassment caused to the petitioner, he was constrained to file an application before the Tribunal directing the respondents to vacate the suit premises. He further submitted that the respondents had instigated his wife to make serious allegations against the petitioner that he had illicit relations with his own daughter-in-law. He, thus, submits that the nature of the allegations made against the petitioner has caused serious mental trauma, and he intended to reside separately from his children in the subject premises. With an intention to grab the subject property, false complaints were also made against the petitioner by instigating his wife. He submits that all the documents of the subject premises stand in the name of the petitioner and that respondents have no authority to continue to occupy the subject premises.
4. The learned counsel for the petitioner submitted that the Tribunal unnecessarily got carried away with the allegations made by the petitioner’s wife. He submits that the allegations made by the petitioner's wife could not be valid grounds to permit the children of the petitioners to continue to reside in the premises, which stand in the name of the petitioner. It is submitted that the petitioner's wife has expired after the application before the Tribunal was decided. He thus submits that the reasons recorded by the Tribunal would indicate that the allegations made by the petitioner against his children and the reasons for filling the application to enable him to reside in his own house peacefully have been completely ignored by the Tribunal.
5. The learned counsel for the petitioner submitted that the Tribunal, in the judgment, has erroneously recorded that the dispute between the parties would be of civil nature and hence considering the allegations made by the petitioner’s wife, no orders could be passed by invoking the provisions under the Senior Citizens Act. He submitted that on the same grounds, the appeal is also dismissed. He submits that allegations made against the petitioner with reference to his wife could not be a ground to deny the petitioner’s right to stay in his own premises peacefully at this stage of his life. He submits that in the event respondents intend to claim any rights in the suit premises, their remedy would be elsewhere. He submits that once the subject premises is admittedly in the name of the petitioner, respondents have no vested right to insist on residing there.
6. In support of his submissions, learned counsel relied upon the decisions of this Court passed in the case of Dinesh Bhanudas Chandanshive Vs. The State of Maharashtra & Ors[1] and the decision in the case of Pawan Ravindra Panchal & Anr. Vs. State of Maharashtra & Anr.[2] By relying upon the said decisions, learned Counsel for the petitioner submitted that the legal principles settled in the aforesaid decisions would squarely apply to the present case. He submits that this Court has observed in the aforesaid decisions that the children of the senior citizens would not be entitled to insist or reside in the premises belonging to the parents and in the event they intend to claim any right, the same would be elsewhere and would not be entitled to claim any right during the lifetime of the parents. He thus submits that the petition be allowed by setting aside the orders passed by the Tribunal and the appellate authority and the application of the petitioner filed under Section 5 of the Senior Citizens Act be allowed.
7. Learned counsel for the respondents opposes the petition. He submits that both the authorities have concurrently
2 Writ Petition No. 379 of 2023 held that the petitioner is not entitled to any relief as claimed by him under the Senior Citizens Act. He submits that respondent nos. 1 to 3 and 5 have vacated the subject premises. However, respondent no. 4 is residing there along with his family. He submits that the respondents have denied all the allegations made by the petitioner by filing an appropriate reply before the Tribunal. By taking undue advantage of the applicability of the Senior Citizens Act, the petitioner is trying to dishouse respondent no. 4, who is residing there along with his family.
8. Learned counsel for the respondents further relied upon the allegations made against the petitioner by his wife and submitted that respondent no. 4 and the petitioner’s wife, i.e., respondent nos. 4’s mother were always residing in the subject premises. The petitioner, with the sole intention to dispossess respondent no. 4 and his family, has filed a false complaint. He further submits that the subject premises consist of a ground plus first floor structure. Petitioner is residing on the upper floor alone, and respondent no. 4 on the ground floor along with his family. He thus submits that no prejudice is caused to the petitioner if respondent no. 4 and his family reside on the ground floor of the subject premises. He therefore submits that no case is made out by the petitioner for exercising the jurisdiction under the Senior Citizens Act directing respondent no. 4 and his family to vacate the premises.
9. With reference to the legal principles laid down in the aforesaid decisions relied upon by the learned counsel for the petitioner is concerned, he submits that in view of the different facts of the present case, the said decisions would not be of any assistance to the petitioner’s argument. He submits that there are no allegations made against respondent no. 4 and his family for invoking any of the provisions under the Senior Citizens Act directing them to vacate the premises. He submits that there is no error in the reasonings recorded by both authorities. Hence, this is not a fit case to invoke writ jurisdiction for interfering in the impugned orders. He, therefore, submits that the petition deserves to be dismissed.
10. In response to the submissions made on behalf of the respondents, learned counsel for the petitioner submitted that the subject premises is a small structure in a slum, and hence there are no separate premises as sought to be contended by respondent no. 4. He submits that the submissions made with reference to the premises as first floor and ground floor is incorrect. There is no such first floor as contended by respondent no. 4, and the premises being in a slum area, a small portion of a loft is sought to be described by respondent no. 4 as the first floor. He submits that the structure is only a single storied structure, and it is not possible for the petitioner to reside there along with respondent no. 4 and his family. He therefore submits that, admittedly, the subject premises stand in the name of the petitioner, and his children have no vested right to insist on residing there.
11. I have considered the submissions. Perused the papers. In the application filed by the petitioner under Section 5 of the Senior Citizens Act, he has specifically contended that when the petitioner had been to his village, respondents had forcibly entered the premises and thereafter started harassing the petitioner. He has pleaded that with an intention to grab the premises, the respondents illegally occupied the premises when he was away from the subject premises. The application further refers to the verbal abuse made by his children. The allegations are specifically pleaded in the application.
12. The application further refers to his children having their own independent premises, and in spite of having their own independent premises, harassment is caused to the petitioner with an intention to grab the subject premises. The petitioner has also stated that for the last five years from the date of filing of the application, he has been regularly filing complaints at the police station about the verbal and physical abuse caused by his children. It appears that thereafter, the petitioner filed an application under Section 5 of the Senior Citizens Act.
13. In response to the allegations, made by the petitioner, the respondents filed reply before the Tribunal and made counter allegations. The respondents do not dispute that the subject premises stand in the name of the petitioner. The written response filed on behalf of the respondents have referred to the dispute that was pending between the petitioner and his wife under the Protection of Women from Domestic Violence Act, 2005. It is sought to be contended that the petitioner, in order to avoid making any payment of maintenance to the petitioner’s wife, made false allegations against his children and specifically against respondent no. 4, who was supporting the petitioner’s wife. Thus, from perusal of the written response filed by the respondents, the main contention raised by the respondents is with reference to the internal dispute between the petitioner and his wife. Except for denying the allegations made against the respondents, no specific case is made out as to why the petitioner’s application should not be allowed when, admittedly, the premises stand in the name of the petitioner.
14. A perusal of the reasons recorded by the Tribunal as well as the Appellate Tribunal indicates that the internal dispute between the petitioner and his wife has been taken into consideration to reject the petitioner’s application. The reference is also made to the ground floor and a loft situated in the premises. The Tribunal has further referred to the order directing the petitioner to pay maintenance to his wife. The Tribunal has further held against the petitioner by referring to the allegations made by the petitioner against his wife by observing that the allegations were morally incorrect which were made by the petitioner against his wife. Thus, by referring to the internal dispute between the petitioner and his wife, the Tribunal concluded that the petitioner was misusing the provisions of the Senior Citizens Act when the dispute was of a civil nature.
15. The application is rejected by the Tribunal on 12th April
2021. The petitioner, therefore, filed an appeal before the appellate Tribunal. Pending the appeal, the petitioner’s wife expired on 22nd April 2022. A perusal of the reasons recorded by the appellate Tribunal also refers to the internal dispute and the allegations made against the petitioner with regard to the dispute between the petitioner and his wife. Thus, both the authorities have failed to take into consideration the specific pleadings in the petitioner’s application regarding the cause for filing the application directing his children to vacate the premises. Once there is no dispute that the premises stand in the name of the petitioner, the respondents would not get any vested right to insist on residing in the subject premises. Admittedly, respondent nos. 1 to 3 and 5 are residing independently in their own premises. So far as respondent NO. 4 and his family is concerned, it is the petitioner’s case that he has acquired independent premises. However, respondent no. 4 is residing in the suit premises along with his family. In the application, the petitioner has specifically pleaded that respondent no. 4 has a secured job with the corporation and that the petitioner had time and again, helped him and his children financially. A perusal of the response filed by the respondent does not show that these averments are specifically denied by them. Thus, if respondent no. 4 is directed to vacate the subject premises, no prejudice would be caused to him, as he has a secured job and thus, can reside independently. Admittedly, there is no other premises available for the petitioner for his residence. Hence, in the event, the subject premises are not made available for his residence, the same would cause serious prejudice to him.
16. The law with regard to the scope of the Tribunal under the Senior Citizens Act is no longer res integra. It is a wellsettled principle of law that the proceedings under the Senior Citizens Act are summary in nature, and the Tribunal has no jurisdiction to adjudicate the rival claims on the title of the property. In the event that the respondents have any claim in the property, their remedy would be elsewhere and not in opposing the application of the petitioner filed under the Senior Citizens Act. Considering the pleadings of the petitioner before the Tribunal, the Tribunal under the Senior Citizens Act was expected to protect the rights of the petitioner guaranteed under the Senior Citizens Act. Hence, considering the pleadings of the petitioner and the response of the respondents, the Tribunal has failed to exercise the jurisdiction vested under the Senior Citizens Act to protect the interest of the senior citizen.
17. As recorded above, except for respondent no. 4, no other respondents are residing in the premises. From the response of the respondents, it appears that except for making allegations with reference to the dispute between the petitioner and his wife, no ground is raised for refusing to grant relief as claimed by the petitioner. This Court in the case of Ashish Vinod Dalal and Ors Vs. Vinod Ramanlal Dalal and Ors[3] has observed with regard to the objects of the Senior Citizens Act. The relevant paragraphs in the case of Ashish Dalal are paragraphs nos. 10 and 11 are as under: “10. It thus clear that the intention of the legislature in making such provisions in the interest of senior citizens, covers a wide spectrum of the senior citizens rights, which are fundamental to the their very survival and/or livelihood at their old age. Certainly the Court’s approach cannot be narrow and pedantic in applying the provisions of the Senior Citizens Act to the grievances of the senior citizens falling within the ambit of the said act. A protection from harassment, exploitation, neglect, psychological disturbances, psychological needs, and all possible facets to safeguard their physical and mental health are required to be recognized when sub-
3 Writ Petition No. 2400 of 2021 dated 15th September 2021. section (2) and sub-section (3) of Section 4 clearly provide that the obligation of the children or relatives would be to cater to the needs of the senior citizens so that they ‘live a normal life’. The words “normal life” as used in these provisions would possess a far deeper and wider concept, deriving its meaning and having a bearing on the fundamental rights of livelihood as guaranteed and enjoyed by senior citizens under Article 21 of the Constitution. Certainly, this would include a right to prevent themselves from being harassed by children and by relatives. This is also clearly borne out by the preamble to the Senior Citizens Act which reads thus:- “An act to provide for more effective provisions for maintenance and welfare of parents and senior citizens guaranteed and recognized under the Constitution and for matter connected therewith or incidental thereto.”
11. The Statement of object and reasons in paragraph 3(c) reflects the intention behind the legislation also to provide for institutionalization of the suitable mechanism for protection of life and property of older persons. Thus, it was certainly appropriate and necessary for the parents in the facts of the present case to invoke the provisions of the Senior Citizens Act to seek a relief against the petitioners qua their property namely the flat in their possession.”
18. The Hon’ble Division Bench of this Court, in the case of Dinesh Chandanshive, held that during the parents' lifetime, the children cannot assert any legal right whatsoever in respect of their parents' property, claiming ownership or possession of the parent's property. A similar view is taken in the case of Pawan Ravindra Panchal. Thus, the legal principles settled in the aforesaid decisions squarely apply to the facts of the present case.
19. In the present case, the Tribunal has failed to exercise the jurisdiction vested in the Tribunal for protecting the rights of the petitioner. It is not in dispute that the premises stand in the name of the petitioner. The rival pleadings of the parties do not indicate that the respondents have claimed vested rights in the subject premises. Hence, no prejudice would be caused to the respondents if they were directed to vacate the premises. However, the petitioner would be left helpless if he is not permitted to occupy the premises. Hence, for the reasons stated above, this is a fit case to exercise powers under Articles 226 and 227 of the Constitution of India.
20. Hence, for the reasons recorded above, the petition is allowed by passing the following order. Order i) The impugned judgment order dated 24th August 2022 passed by the Appellate Tribunal and Additional Collector, Suburban District, Mumbai in appeal no. सी/कार्याा-१३ ज्र्याे.ना./एस.आर-०८/कावि - /२१ and judgment and order dated 12th April, 2021 passed by the Tribunal under the Senior Citizens Act and the Sub- Divisional Officer, Mumbai Western Suburban District in Application no. 17 of 2020 are quashed and set aside. ii) Application No. 17 of 2020 filed by the petitioner under the Senior Citizens Act is allowed, and respondents nos. 1 to 5 are directed to vacate the subject premises i.e., Room no. 2 Thakur Chawl, Vakola Police Station Road, Santacruz (East), Mumbai 400 005 within eight weeks from the date of uploading this order. iii) The Writ Petition stands allowed in aforesaid terms. (GAURI GODSE, J.)