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Adult Children, Grandchildren can stay in Senior Citizen residence during their forgiveness only

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.10611 OF 2018

Dattatrey Shivaji Mane
R/a. 502, 5th Floor, B-Wing,Darshan Heights, Zavaba Wadi,Thakurdwar, Girgaon, Mumbai. .. Petitioner

Versus

1. Lilabai Shivaji Mane
R/a. 502, 5th Floor, B-Wing,Darshan Heights, Zavaba Wadi,Thakurdwar, Girgaon, Mumbai.

Dy.Collector/Officer,
Parents and Senior Citizen’s Welfare Tribunal, Mumbai City,
Old Custom House, Shahid Bhagatsingh Road, Fort, Mumbai.State of Maharashtra
(Notice to be released on Government)

Pleader, Appellate Side, (Writ Cell),High Court, Mumbai. .. Respondents
Mr.J.P. Kharge for a petitioner.
Mr.Sandeep Naik for a respondent no.1.
Mr.S.D.Rayrikar, AGP for a respondent nos.2 3.

CORAM : R.D. DHANUKA, J.

DATE : 26th Jun 2018

Judgment :–

1. By this petition filed underneath Article 227 of a Constitution of India, a postulant has impugned a sequence antiquated 1st Feb 2018 inspected by a Tribunal for Welfare of Parents and Senior Citizens on a censure filed by a respondent no.1 who is a mom of a postulant no.1, underneath a supplies of a Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for brief “the pronounced Act”).

2. It is a box of a postulant that a postulant has been staying in a tenament i.e. Room No.502, 5 th floor, B-Wing, Darshan Heights, Zavaba Wadi, Thakurdwar, Girgaon, Mumbai along with his wife, son, daughter and a respondent no.1. Admittedly a pronounced tenament belongs to a respondent no.1 exclusively.

3. The respondent no.1 filed a censure opposite a postulant inter alia praying for upkeep and eviction of a postulant on several grounds. The pronounced censure was resisted by a petitioner. The Tribunal inspected an sequence on 1 st Feb 2018 thereby directing a postulant and his other family members to exude themselves from a pronounced tenament within 30 days from a date of a pronounced sequence and palm over empty possession thereof to a respondent no.1. This sequence of a Tribunal is impugned by a postulant in this petition underneath Article 227 of a Constitution of India.

4. Learned warn appearing for a postulant challenged a pronounced sequence on a belligerent that a censure was filed by a respondent no.1 opposite a postulant usually given in a impugned order, a Tribunal has inspected a impugned sequence of eviction also opposite a wife, son and daughter of a postulant from a fit premises that is not slight in law.

5. The subsequent acquiescence of a schooled warn for a postulant is that underneath Section 4 of a pronounced Act, a Tribunal has no office to exude a postulant as good as his family members from a tenament owned by a respondent no.1. The whole sequence is so though jurisdiction.

6. The subsequent acquiescence of a schooled warn for a postulant is that a postulant has been progressing a respondent no.1 for final several years. The respondent no.1 has been badgering a postulant and his family members. All a rapist complaints filed by a respondent no.1 opposite a postulant and his family members are likely of. The censure filed underneath a supplies of a Protection of Women from Domestic Violence Act, 2005 opposite a postulant is discharged for default.

7. It is submitted by a schooled warn for a postulant that a respondent no.1 has been exclusively earning estimable volume and so could not find any service opposite a postulant by filing a censure underneath Section 4 of a pronounced Act.

8. Learned warn appearing for a respondent no.1, on a other hand, submits that given of mental woe and continual bother to a respondent no.1 by a postulant and his family members, a respondent no.1 has filed several complaints opposite them in final 10 years. The Tribunal however has not taken any movement on those complaints filed by a respondent no.1 opposite a postulant and his family members.

9. In so distant as a censure filed by a respondent no.1 underneath a supplies of a Protection of Women from Domestic Violence Act, 2005 opposite a postulant is concerned, a pronounced censure has been discharged for default and not on merit.

10. Learned warn for a respondent no.1 submits that even during a pendency of this petition, a postulant had caused earthy harm to a respondent no.1 and so a respondent no.1 was compelled to record a military censure opposite a postulant with a endangered military station.

11. Learned warn for a respondent no.1 placed faith on a visualisation of a Delhi High Court in a box of Sunny Paul Anr. Vs. State Nct of Delhi Ors. delivered on 15th Mar 2017 in Writ Petition (C) No.10463 of 2015 and also another visualisation of a Delhi High Court in a box of Sachin Anr. Vs. Jhabbu Lal Anr. delivered on 24th Nov 2016 in RSA 136 of 2016. He submits that a judiciary has plenty energy to pass an sequence of eviction opposite a persons underneath a supplies of a pronounced Act from a tenament in that a respondent no.1 has right, pretension and interest.

12. Learned warn for a respondent no.1 submits that on one hand, a postulant or his mom who allegedly earns income of Rs.12,000/- per month, on a other hand, he has been profitable estimable volume of eduction fees of his child and has been vital lavishly. The respondent no.1 does not have any vital source of income and can't be forced to assent a postulant and his family members to occupy a tenament owned by her.

13. It is not in brawl that a respondent no.1 has disdainful rights in a tenament that is authorised to a assigned by a postulant and his family members by a respondent no.1. It is not in brawl that a respondent no.1 has filed several military complaints opposite a postulant and his family members in several military stations alleging bother and other offences. The complaints filed opposite a postulant underneath a supplies of a Protection of Women from Domestic Violence Act, 2005 has been discharged not on consequence though for default.

14. Learned warn for a postulant could not indicate out any authorised right of his customer to occupy a tenament owned by a respondent no.1 underneath a supplies of a Maintenance and Welfare of Parents and Senior Citizens Act, 2007 or underneath any other supplies of law. The acquiescence of a postulant is that given a postulant has been allegedly progressing a respondent no.1 for final several years, no sequence of eviction could be inspected by a judiciary underneath Section 4 of a pronounced Act or underneath any other supplies of a pronounced Act. Per contra, a respondent no.1 has constructed sufficient element on record before this Court and also a Tribunal display that a respondent no.1 has been tormented by a postulant and his family members for final several years.

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15. In so distant as a acquiescence of a schooled warn for a postulant that given no censure was filed by a respondent no.1 opposite a wife, son and daughter of a postulant before a Tribunal, no sequence could be inspected by a Tribunal opposite a other family members of a postulant is concerned, in my view, there is no consequence in this acquiescence of a schooled warn for a petitioner. Section 4 of a pronounced Act permits a comparison citizen including primogenitor who is incompetent to say himself from his earning or out of skill owned by him and if such comparison citizen is incompetent to lead a normal life to request for such service not usually opposite his children though also a grand children. Be that as it may, a wife, son and daughter of a postulant have not challenged a impugned order.

16. In so distant as a complaints filed by a respondent no.1 that are purported to have been likely of are concerned, it is a box of a respondent no.1 that a endangered military hire did not take any movement on those complaints filed by her. The postulant does not brawl that those complaints were filed by a respondent no.1 opposite a postulant creation critical allegations of bother and other offences. Merely given a military hire has not taken any movement on those complaints, a postulant can't be authorised to titillate that he and his family members had not harrassed or tortured a respondent no.1.

17. Learned warn for a respondent no.1 states that his customer wants to exude a postulant and his family members from her premises to stop a bother and woe in future, from a postulant and his family members, for assent of mind and to lead a normal life and does not wish any upkeep from a postulant henceforth. Statement is accepted.

REASONS AND CONCLUSIONS :- A examination of a record indicates that it is an certified position that even according to a petitioner, a postulant had been requesting a respondent no.1 for entering a names of his son and daughter in a allotment label in honour of a pronounced tenament that a respondent no.1 has refused. According to a petitioner, it has been an confinement in a mind of a respondent no.1 that if a names of a son and daughter of a postulant were entered in a allotment card, a postulant and his children would explain right in a pronounced tenament owned by her. The postulant could not uncover any right of any inlet whatsoever in a pronounced tenament of a respondent no.1 underneath any supplies of law.

19. In a censure filed by a respondent no.1 before a Tribunal, a respondent no.1 had purported that a postulant and his family members were violence a respondent no.1 and had caused injuries to a palm and leg of a respondent no.1. It was serve purported that a postulant and his family members are perplexing to reject a respondent no.1 from her house. The respondent no.1 was prevented from regulating her residence by a postulant and his family members. It was purported by a respondent no.1 in a pronounced censure that a postulant and his family members also prevented a respondent no.1 from regulating toilet and were shutting a H2O tap.

20. A examination of a censure antiquated 7 th Apr 2007 filed by a respondent no.1 with L.T. Marg Police Station indicates that a respondent no.1 had purported that a postulant and his mom used to kick her frequently and also abusing her. Copies of all such complaints opposite a postulant lodged by a respondent no.1 with a internal military hire were already annexed to a focus filed by a respondent no.1 and are combining partial of a record of a command petition filed by a petitioner.

21. A examination of a record clearly indicates that a attribute between a respondent no.1 and a postulant and his family members are really stretched ensuing in a respondent no.1 filing several military complaints opposite a petitioner. In these circumstances, a respondent no.1 who is 73 years aged can't be compelled to concede a postulant and his family members to stay with her. It is exclusively for a respondent no.1 to confirm either she wants to assent a postulant and his family members to stay with her or not. In this case, a respondent no.1 has motionless not to concede a postulant and his family members to stay with her in a residence owned by her. In my view, a Tribunal was so entirely fit in flitting an sequence of eviction not usually opposite a postulant though also other family members of a petitioner.

22. The sustenance of Section 4 of a pronounced Act permits such focus for eviction of child and grand child if a condition set out in that sustenance review with other supplies are satisfied. In my view, there is so no piece in a acquiescence of a schooled warn for a postulant that a sequence of eviction can't be inspected by a Tribunal underneath Section 4 of a pronounced Act review with other supplies of a pronounced Act.

23. The Objects and Reasons of a Maintenance and Welfare of Parents and Senior Citizens Act, 2007 review so :-

“1. Traditional norms and values of a Indian multitude laid highlight on providing caring for a elderly. However, due to curse of a corner family system, a vast series of aged are not being looked after by their family. Consequently, many comparison persons, quite widowed women are now forced to spend their twilight years all alone and are unprotected to romantic slight and to miss of earthy and financial support. This clearly reveals that ageing has turn a vital amicable plea and there is a need to give some-more courtesy to a caring and insurance for a comparison persons. Though a kin can explain upkeep underneath a Code of Criminal Procedure, 1973, a procession is both time immoderate as good as expensive. Hence, there is a need to have simple, inexpensive and rapid supplies to explain upkeep for parents.

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2. The Bill proposes to expel an requirement on a persons who get a skill of their aged kin to say such aged kin and also proposes to make supplies for environment adult aged age homes for providing upkeep to a bankrupt comparison persons.
The Bill serve proposes to yield improved medical comforts to a comparison citizen and supplies for insurance of their life and property.

3. The Bill, therefore, proposes to yield for :-
(a) suitable resource to be set-up to yield need- formed upkeep to a kin and comparison citizens;
(b) providing improved medical comforts to comparison citizens;
(c) for institutionalisation of a suitable resource for insurance of life and skill of comparison persons;
(d) setting-up of aged age homes in each district.

4. The Bill seeks to grasp a above objectives.”

24. In so distant as a acquiescence of a schooled warn for a postulant that underneath Section 4 of a pronounced Act, no sequence of a eviction can be inspected by a Tribunal though a pronounced sustenance could be invoked usually for a purpose of creation a explain for upkeep is concerned, Delhi High Court in a box of Sunny Paul Anr. Vs. State Nct of Delhi Ors. (supra) has deliberate a pronounced emanate during good length and has hold that a explain for eviction is maintainable underneath Section 4 of a pronounced Act review with several other supplies of a pronounced Act by a comparison citizen opposite his children and also a grand children.

25. If a evidence of a schooled warn for a postulant is supposed by this Court afterwards no comparison citizen who has been meted out with bother and mental woe will be means to redeem possession of his/her skill from a children or grand children during his/her lifetime. The pronounced Act is enacted for a advantage aand insurance of comparison citizen from his children or grand children. The beliefs of law laid down by a Delhi High Court in a box of Sunny Paul Anr. Vs. State Nct of Delhi Ors. (supra) would precisely request to a contribution of this case. we respectfully determine with a views voiced by a Delhi High Court in a pronounced judgment.

26. Delhi High Court in a box of Sunny Paul Anr. Vs. State Nct of Delhi Ors. (supra) has adverted to a another visualisation of a Delhi High in a box of Nasir Vs. Govt. of Nct of Delhi Ors. -2015 (153) DRJ 259 and also a visualisation of Gujarat High Court in a box of Jayantram Vallabhdas Meswania Vs. Vallabhdas Govindram Meswania – AIR 2013 Gujarat 160.

27. Delhi High Court in a box of Nasir Vs. Govt. of NCT of Delhi Ors. (supra) while traffic with a matter underneath a supplies of a same Act and has hold that once it is found that a comparison citizen was a owners of a theme property, no blunder can be found with a directions released by a Tribunal confining a child of such comparison citizen from interfering with a possession of a comparison citizen who was a mom of a postulant in that matter occupying a skill and/or from recuperating a let income of a other skill and serve directing a son to say assent in a residence and not to disquiet his aged mother. It is hold that in such situation, if it is pronounced that a respondent mom ought to have been relegated by a Tribunal to a Civil Court, a same would have been in opposite of a really purpose of environment adult of such Tribunal. It is hold that while interpreting a provisions, intent of a Act has to be kept in mind that is to yield simple, inexpensive and rapid pill to a kin and comparison adults who are in distress, by a outline procedure. The supplies have to be liberally construed as a primary intent is to give amicable probity to kin and comparison citizens.

28. Delhi High Court in a pronounced visualisation has adverted to a visualisation of a Supreme Court in a box of Board of Muslim Wakfs, Rajasthan Vs. Radha Kishan- 1979(2) SCC 468 in that Supreme Court has hold that a construction that tends to make any partial of a government incomprehensible or ineffectual contingency always be avoided and a construction that advances a pill dictated by a government should be accepted. In my view, a beliefs of law laid down by a Delhi High Court in a box of Nasir Vs. Govt. of NCT of Delhi Ors. (supra) and a visualisation of a Supreme Court in a box of Board of Muslim Wakfs, Rajasthan Vs. Radha Kishan (supra) request to a contribution of this case. we am in respectfully agreement with a views voiced by a Delhi High Court in a pronounced judgment. The beliefs of law laid down by a Supreme Court in a aforesaid visualisation are contracting on this Court.

29. Gujarat High Court in a box of Jayantram Vallabhdas Meswania Vs. Vallabhdas Govindram Meswania (supra) while traffic with a command petition filed by a son of a comparison citizen has construed Sections 4, 23 and several other supplies of a pronounced Act. The son was occupying a skill of his father who was admittedly a comparison citizen. The pronounced comparison citizen indispensable to beget earning/income from a pronounced partial of a premises that were assigned by his son. Son was not progressing a father. Gujarat High Court deliberate a objects and reasons of a pronounced Act and hold that son had not claimed any right of, or insurance as orthodox reside or differently in honour of a pronounced premises owned by a father. It is hold that while explaining a intent behind a dramatization of a Act, a Legislature has simplified that, “the Bill proposes to expel an requirement on a persons who get a skill of their aged kin to say such aged relatives. The Bill serve proposes to yield improved medical comforts to a comparison adults and supplies for insurance of their life and property.”

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30. After adverting to a objects and reasons of a pronounced Act, Gujarat High Court has hold that on altogether care and carrying courtesy to a sustenance underneath Sections 2(b), 2(d), 2(f), 4 and a intent of a Act, a pronounced tenure should accept wider definition so as to embody possession/occupation of property, as well. The pronounced visualisation is already recognised, supposed and internalised by a Act vide Section 4 of a Act. It is hold that a supplies underneath Section 23 of a Act can't be, and need not be, review in siege or by divorcing a pronounced sustenance from other provisions, quite Section 4 of a Act review with Sections 2(b), 2(f), 2(g) 2(h) of a Act. Gujarat High Court accordingly deserted a command petition of a son impugning a sequence of a Tribunal directing him to palm over possession of a skill to a father and hold that a pronounced sequence inspected by a Tribunal to palm over possession could not be pronounced to be though office or over a range of Section 23 review with Sections 4, 2(b), 2(d) and 2(f) of a Act. In my view, a beliefs of law laid down by a Gujarat High Court Jayantram Vallabhdas Meswania Vs. Vallabhdas Govindram Meswania (supra) relates to a contribution of this case. we am in respectfully agreement with a views voiced by a Gujarat High Court in a pronounced judgment.

31. In my view, Section 4 can't be review in siege though has to be review with Section 23 and also Sections 2(b), 2(d) and 2(f) of a pronounced Act. The respondent no.1 mom can't be calm from recuperating disdainful possession from her son or his other family members for a purpose of generating income from a pronounced premises or to lead a normal life. In my view, if a respondent no.1 mom who is 73 years aged and is a comparison citizen, in this situation, is asked to record a polite fit for liberation of possession of a skill from her son and his other family members who are not progressing her though are formulating bother and causing earthy harm to her, a whole purpose and objects of a pronounced Act would be frustrated.

32. In my view, given underneath Section 23 of a pronounced Act, a comparison citizen is entitled to request for a stipulation of present or send of his/her skill by any other means given theme to a condition that a transferee shall yield a simple amenities and simple earthy needs to such comparison citizen and such child or grand child refuses to yield such amenities and earthy needs, such comparison citizen can request for stipulation of such transaction to be void, such comparison citizen can even request for liberation of possession from her child or grand child in a eventuality of a child refusing to say such comparison citizen and kin or does not approve with a obligations fluctuating to a needs of comparison citizen or such kin to capacitate such comparison citizen or kin to lead a normal life. Such kin and comparison citizen can positively request for liberation of empty possession of a skill and for a service confining such child or grand child or his other family members who are claiming by such child from entering on a skill of such comparison citizen or parents. In my view, there is so no consequence in a acquiescence of a schooled warn for a postulant that a Tribunal could not have inspected an sequence of eviction opposite a postulant and his family members from a tenament owned by a respondent no.1 underneath a supplies of a pronounced Act.

33. Delhi High Court in a box of Sachin Anr. Vs. Jhabbu Lal Anr. (supra) has hold that where a residence is self acquired residence of a parents, son either married or unmarried, has no authorised right to live in that residence and he can live in that residence usually during a forgiveness of his kin upto a time a kin allow. Merely given a kin have authorised him to live in a residence so prolonged as his family with a kin were cordial, does not meant that a kin have to bear his weight via his life. The beliefs of law laid down by a Delhi High Court in a box of Sachin Anr. Vs. Jhabbu Lal Anr. (supra) would precisely request to a contribution of this case. In my view, no child can enforce his kin and some-more quite comparison citizen to concede such child or grand child to stay with him.

34. The impugned sequence inspected by a Tribunal is in consent with a powers postulated to such Tribunal underneath Section 4 review with other supplies of a pronounced Act. we do not find any feebleness in a impugned order. The petition is abandoned of consequence and is accordingly dismissed. No sequence as to costs.

35. In perspective of a fact that a impugned sequence of a Tribunal is upheld, a pronounced sequence shall be complied with by a postulant and by other occupants i.e. his wife, son and daughter within dual weeks from currently and shall palm over empty possession to a respondent no.1 though fail. If a sequence is not complied with by a postulant and his family members, a pronounced sequence shall be executed by a respondent no.1 with a assistance of a police, if required. Parties as good as a Tribunal to act on a real duplicate of this order.

R.D. DHANUKA, J.

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