As per case facts, the Petitioner resided in a joint family property with his parents (Respondent Nos. 3 and 4) which he claimed was built from ancestral income. Ongoing family ...
wp9856-2019-J.doc
Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9856 OF 2019
Kishor Dnyanoba Gaikwad … Petitioner
Vs.
1.Additional Collector, Pune
2.The Sub Divisional Magistrate, Pune
3.Dnyanoba Rambhau Gaikwad
4.Neela Dnyanoba Gaikwad
5.State of Maharashtra … Respondents
Ms. Sneha Bhange with Mr. Swapnil Sawgle and Mr.
Chaitanya Nikte for the Petitioner.
Smt. V.R. Raje, AGP for respondent Nos. 1 & 2-State.
Mr. Sachin Gite for respondent No.4.
CORAM :AMIT BORKAR, J.
RESERVED ON :AUGUST 17, 2026.
PRONOUNCED ON:AUGUST 21, 2026
JUDGMENT:
1.The present Writ Petition, instituted under Articles 226 and
227 of the Constitution of India, takes exception to the legality,
validity, and propriety of the order dated 27 June 2019 passed by
Respondent No.1, the Additional Collector, Pune, in Appeal No.6 of
2019. The said appeal was preferred by Respondent Nos.3 and 4
under Section 15 of the Maintenance and Welfare of Parents and
Senior Citizens Act, 2007. By the impugned order, Respondent
1
ATUL
GANESH
KULKARNI
Digitally signed by
ATUL GANESH
KULKARNI
Date: 2026.08.21
11:34:45 +0530
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No.1 was pleased to quash and set aside the order dated 8
February 2019 passed by Respondent No.2, the Sub-Divisional
Magistrate, Pune, in the application instituted by Respondent
Nos.3 and 4 under Section 5 of the said Act.
2.The facts and circumstances giving rise to the filing of the
present Writ Petition, as pleaded by the Petitioner, may briefly be
stated thus. The Petitioner asserts that he has been residing at the
address in question since his birth along with Respondent Nos.3
and 4, who are his parents. The Petitioner got married in the year
2012, and since then, his wife has been residing at the said
address. According to the Petitioner, the property in question was
constructed out of the income generated from the ancestral
properties belonging to the Petitioner and Respondent Nos.3 and 4
and, therefore, constitutes joint family property. It is contended
that the name of the Petitioner has been duly in the occupancy
certificate issued in respect of the said building.
3.The Petitioner states that his brother, Ashok Gaikwad, has
been residing separately since the year 2004. It is alleged that
Ashok Gaikwad was involved in an illicit relationship with one
Shubhangi. According to the Petitioner, on account thereof, the
wife of Ashok Gaikwad, namely, Mrs. Anita Gaikwad, instituted
various criminal complaints and proceedings under the Protection
of Women from Domestic Violence Act as well as proceedings
under Section 125 and Sections 323, 504 and 506 of the Criminal
Procedure Code read with Section 34 of the Indian Penal Code
against the members of the Petitioner's family. The Petitioner
contends that the disputes arising from the said circumstances
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constituted a continuing source of discord between him and the
other members of his family.
4.It is the case of the Petitioner that, in September 2015,
Respondent Nos.3 and 4 sold the property bearing Survey
No.77/1/13 to one Imran Pansare without informing or consulting
him. According to the Petitioner, the said transaction was entered
into by Respondent Nos.3 and 4 in collusion with their elder son,
Ashok Gaikwad. The Petitioner alleges that, after the sale of the
said property in favour of Imran Pansare, certain persons, allegedly
acting on behalf of the purchaser, visited the residence on several
occasions, threatened the Petitioner and his wife and called upon
them to vacate the premises. It is alleged that the Petitioner and
his wife were subjected to intimidation and threats to their lives.
5.The Petitioner thereafter lodged a complaint dated 20
October 2015 with the Wakad Police Station, alleging that he was
being harassed by persons acting at the instance of Imran Pansare.
It is pleaded that, on 21 October 2015, Respondent Nos.3 and 4
entered into another agreement for sale in respect of a property
bearing Survey No.79/03/16, known as Dnyan Leela Sadan,
situated at Shri Ram Colony, Jyotiba Nagar, Kalewadi, Pune, by
executing a registered Agreement for Sale dated 21 October 2015.
Thereafter, a Sale Deed dated 5 January 2016 in respect of the said
property came to be executed between Respondent No.4 and one
Deepak Pandit Makane.
6.The Petitioner thereafter instituted Regular Civil Suit No.232
of 2016 before the Civil Judge, Senior Division, Mazalgaon. The
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Petitioner states that, on 8 October 2016, he lodged FIR No.568 of
2016 with the Pimpri Police Station against Respondent Nos.3 and
4, their elder son Ashok Gaikwad, and Deepak Pandit Makane.
According to the Petitioner, after the aforesaid proceedings and
steps did not yield the desired result, Respondent Nos.3 and 4
instituted an application under Section 5 of the Maintenance and
Welfare of Parents and Senior Citizens Act, 2007 before
Respondent No.2, the Sub-Divisional Magistrate, Pune. Respondent
No.2, by order dated 8 February 2019, rejected the application
preferred by Respondent Nos.3 and 4. Aggrieved thereby,
Respondent Nos.3 and 4 preferred Appeal No.6 of 2019 before
Respondent No.1. Respondent No.1, by the order dated 27 June
2019, allowed the said appeal and set aside the order passed by
Respondent No.2. Being aggrieved by the appellate order, the
Petitioner has approached this Court by way of the present Writ
Petition.
7.Ms. Bhange, learned Advocate appearing for the Petitioner,
submits that Respondent Nos.3 and 4, being the parents of the
Petitioner, had instituted an application under Section 5 of the
Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
She submits that the Petitioner and Respondent Nos.3 and 4 are
not residing together in a common household. According to her,
the building in question comprises 15 separate flats, out of which
the Petitioner resides in one independent flat along with his wife,
whereas Respondent Nos.3 and 4 reside in a separate flat. She
submits that the possession of the Petitioner over the flat occupied
by him was neither forcible nor unauthorized. It is contended that
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the name of the Petitioner is as an occupant in the records of the
Municipal Corporation and that a No Objection Certificate for
inclusion of his name as an occupant was issued by his father as
well as his brother. She submits that the application filed by
Respondent Nos.3 and 4 was confined only to seeking eviction of
the Petitioner and the other tenants occupying the residential
building known as Mauli Krupa Building, situated at Jyotiba
Colony, Jyotiba Nagar, Pune. No relief towards maintenance was
sought in the said application. According to the learned Advocate,
the proceedings have been instituted at the instance and under the
influence of the elder brother of the Petitioner. She submits that
the Petitioner has already instituted a suit seeking partition, which
includes the property in question, and the said suit is pending.
8.She submits that the application preferred by Respondent
Nos.3 and 4 came to be rejected by the Sub-Divisional Magistrate
by order dated 8 February 2019. Respondent Nos.3 and 4
thereafter challenged the said order before the Additional
Collector. By the impugned order dated 27 June 2019, the
Additional Collector, Pune, allowed the appeal preferred by
Respondent Nos.3 and 4. She submits that, except for recording a
finding that the building stands in the name of the father of the
Petitioner, the impugned order does not disclose any reasons for
allowing the appeal. According to her, there is no finding that the
Petitioner had subjected Respondent Nos.3 and 4 to any
harassment or ill-treatment. There is no finding in respect of any
entitlement of the Respondents to claim maintenance under the
provisions of the Act. She submits that it is the specific case of the
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Petitioner that the property in question was acquired out of the
income generated from the joint family properties and that the
Petitioner, therefore, claims a share therein. It is for this reason
that the Petitioner has instituted proceedings for partition.
According to the learned Advocate, the proceedings initiated by
Respondent Nos.3 and 4 under the Act are, in substance, intended
to secure eviction of the Petitioner under the garb of the provisions
of the Senior Citizens Act. She submits that the proceedings have
been initiated at the instance of the elder son and that the object
behind seeking eviction was to facilitate sale of the property.
9.She submits that the father of the Petitioner has admitted
that the property was sold in September 2015. According to her,
no case satisfying the requirements of Section 23 of the Act has
been made out by Respondent Nos.3 and 4. It is submitted that the
Respondents have not pleaded that they require the property for
their maintenance or that the property is necessary for enabling
them to maintain themselves, which, according to the learned
Advocate, is an essential requirement for invoking Section 23 of
the Act. In support of the said submission, reliance is placed on the
judgment in
Ranjana Rajkumar Makharia v. Mayadevi Subhkaran
Makharia & Others, reported in 2020 (3) Mh.L.J. 587
.
10.She submits that an order of eviction cannot be passed under
the provisions of the Act in the absence of any claim or prayer for
maintenance by the senior citizens. In support of the said
submission, reliance is placed on the judgment of this Court in
Jitendra Gorakh Megh v. Additional Collector & Another, Writ
Petition (L) No.31614 of 2025, decided on 8 December 2025
.
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11.She submits that the wife of the Petitioner was not
impleaded as a party to the proceedings before the authorities
under the Act. It is, therefore, contended that no order resulting in
her eviction from the premises could have been passed in the said
proceedings without affording her an opportunity of being heard.
In support of the said submission, reliance is placed on the
judgment of this Court in
Jyoti Tushar Pawar & Anr. v. The District
Collector, Nanded & Others, reported in 2024 SCC OnLine Bom
7074
.
12.She submits that the conduct of Respondent Nos.3 and 4 is
wholly mala fide. According to her, Respondent Nos.3 and 4 have
purchased several properties since the year 2012 and have regular
income from such properties. It is contended that the proceedings
under the Act have been instituted only with a view to exert
pressure upon the Petitioner. She submits that the mother of the
Petitioner had instituted proceedings under the Domestic Violence
Act against the Petitioner, which were not thereafter pursued and
ultimately came to be dismissed. It is submitted that an FIR was
registered by the State of Maharashtra against the parents in
relation to alleged fraudulent documents and that a charge-sheet
has been filed in FIR No.568 of 2016 dated 8 October 2016.
According to the learned Advocate, the material forming part of
the said proceedings indicates that an amount of approximately
Rs.12 lakhs was gained in the year 2015 as a result of the alleged
fraud. She reiterates that, in any event, the application instituted
by Respondent Nos.3 and 4 does not contain any claim for
maintenance.
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13.Per contra, Mr. Gite, learned Advocate appearing for
Respondent No.4, while inviting attention to the handwritten
application submitted by the senior citizen, submits that the
application was personally drafted and presented by the senior
citizen, who was not financially in a position to engage the services
of an Advocate. Mr. Gite invites attention to the contents appearing
on the last page of the handwritten application. He submits that
the senior citizens have stated therein that they were unable to
afford payment of rent and were unable to bear the expenses
towards medicines and medical treatment. It is stated that, since
the opponent was not paying any rent, the senior citizens were
compelled to sell the building for the purpose of repayment of the
loan. The application contains a request for assistance in securing
the amount of rent for a period of six years and for obtaining
possession of the premises. According to the learned Advocate,
these averments clearly indicate the inability of the senior citizens
to maintain themselves from the property owned by them. He
submits that there is no dispute regarding the ownership of the
property in question by the senior citizen applicants. According to
him, once it is established that the senior citizens are the owners of
the property and that the opponent has no independent legal right
to continue in occupation of the flat, the averments in the
application regarding their inability to maintain themselves are
sufficient to sustain the order passed by the authority below. He,
therefore, submits that the impugned order does not warrant
interference and prays for dismissal of the Writ Petition.
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REASONS AND ANALYSIS:
14.I have considered the submissions made by Ms. Bhange,
learned Advocate appearing for the Petitioner, and Mr. Gite,
learned Advocate appearing for Respondent No.4. I have gone
through the application submitted by the senior citizens, the orders
passed by the Sub-Divisional Magistrate and the Additional
Collector, as the judgments relied upon by both sides. After
considering the entire material, I am of the view that no case is
made out for exercising jurisdiction under Articles 226 and 227 of
the Constitution of India.
15.The main contention raised on behalf of the Petitioner is that
the application filed by Respondent Nos.3 and 4 was only for
seeking eviction and there was no prayer for maintenance. At the
first instance, this submission appears to have some substance. In
Jitendra Megh, the Division Bench had considered the same
question. As noticed in paragraph 50 of
Mughda Sahal Indian
Citizen v. Senior Citizen Appellate Tribunal & Ors., reported in
2026 SCC OnLine Bom 4504
, the question before the Division
Bench in
Jitendra Megh was as under:
“Whether an eviction order can be passed under the
Maintenance and Welfare of Parents and Senior Citizens Act,
2007 without any claim towards maintenance being made by
the senior citizen ?”
16.However, the observations made in Jitendra Megh will have
to be understood in the facts of that particular case. In paragraph
20, the Division Bench observed that when the senior citizen had
not made any claim for maintenance, “we fail to see how the said
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application which has been filed by the senior citizen under
Section 5(2) of the Act, is maintainable, in the first place.” In
paragraph 24, it was observed that the Act “cannot be (mis) used
by the senior citizen as a tool for summary eviction without the
fulfillment of statutory requirements.” However, the later decision
of this Court in
Mughda Sahal has considered the scope of this
principle in more detail. The Court has explained that merely
because there is no separately drafted prayer for maintenance, it
cannot always mean that the proceedings themselves are not
maintainable. Paragraph 64 of
Mughda Sahal holds:
“it cannot be laid down as an immutable and absolute Rule
of Law that an application for eviction simpliciter, sans the
prayer for maintenance, is not maintainable, even when the
senior citizen claims that she has been deprived of her
property unlawfully or that she requires the property to live
a normal, dignified and peaceful life.”
17.Thus, the submission that the entire proceedings are without
jurisdiction only because the application does not contain a
separate prayer for maintenance cannot be accepted as an absolute
proposition.
18.The application made by Respondent Nos.3 and 4 will have
to be read as a whole. Mr. Gite has invited attention to the
handwritten application submitted by the senior citizens. It is
stated therein that they were not in a position to afford rent and
were unable to bear the expenses of medicines. It is stated that
since the opponent was not paying rent, the senior citizens were
required to sell the building for repayment of loan. They have
sought help in respect of rent and possession. These statements
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cannot be ignored only because there is no prayer under the
heading of maintenance. In substance, these averments are
connected with residence, financial support and use of the
property for meeting their requirements.
19.The fact that the application was handwritten has some
relevance in the facts of the present case. It is the submission of
Mr. Gite that the senior citizen had himself stated that he could not
afford the services of an Advocate. Such an application cannot be
examined with the same strictness as a pleading drafted by a
legally trained person. What is required to be seen is the real
grievance of the person. The grievance appearing from the
application is that the senior citizens were not receiving rent, were
facing difficulty in meeting their expenses including medical
expenses, and required possession and income from the property.
Therefore, it cannot be said that the application contains no claim
touching maintenance.
20.Paragraph 55 of Mughda Sahal explains the basis for taking
such an approach. The Court observed that the definition of
“maintenance” includes residence and the obligation concerning
residence has both positive and negative aspects. The positive
obligation may require providing residence where the senior
citizen does not possess any property. The negative obligation is
explained by observing that the child or relative should “not to
deprive a senior citizen of her own residence.” Thus, in a proper
case, a claim for possession can have direct connection with the
right of maintenance and the right of the senior citizen to live a
normal life. Therefore, the manner in which the prayer is drafted
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cannot by decide the real nature of the proceedings. The real
question is whether the senior citizens have shown that their right
to live peacefully and to use and enjoy their property has been
affected because of continued occupation of the Petitioner. On
considering the material placed on record, I find that there was
sufficient material before the authorities to take such a view.
21.Ms. Bhange next submits that the Petitioner and his parents
are not residing together. According to her, the building consists of
fifteen separate flats. The Petitioner is residing in one flat with his
wife, whereas his parents are residing in another flat. This factual
position may not be in dispute. However, separate residence by
does not decide the controversy. The grievance of the senior
citizens is not merely that the Petitioner is residing in the same flat
or physically sharing their residence. Their case, as reflected from
the application, is that the Petitioner continues to occupy a portion
of the property, does not pay rent, and such occupation affects
their ability to use the property and derive income from it for
meeting their requirements. Therefore, merely because the parties
occupy separate flats, the proceedings cannot fail only on that
ground.
22.The Petitioner has submitted that his possession was not
forcible. It is submitted that his name has been entered as an
occupant in the municipal records and that the father and brother
had given NOC for inclusion of his name. There is some substance
in this submission to the limited extent that the entry of the
Petitioner in the premises cannot be described as forcible. His
occupation was apparently known to the family. However, that
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circumstance does not mean that his occupation creates a
indefeasible right against the owners. An entry in municipal or
occupancy records does not by confer title. Similarly, an NOC given
for recording the name of a person as an occupant may explain the
circumstances in which his occupation started. It does not establish
a permanent proprietary right in the property. The occupation of
the Petitioner may have commenced as a family arrangement or
with consent of his parents. That is different from establishing an
enforceable right to continue in possession against the wishes of
the owners.
23.The Petitioner has relied upon the fact that he has filed a suit
for partition. His case is that the property was acquired from
income generated from ancestral or joint family properties and
that he has a share in it. This submission cannot be brushed aside.
The Petitioner has in fact instituted civil proceedings asserting such
a right. However, the said claim is yet to be decided by the
competent Civil Court. Pendency of the partition suit cannot result
in a final determination in favour of the Petitioner in the present
proceedings. At the same time, proceedings under the Senior
Citizens Act cannot be converted into proceedings for deciding
title. The scope of the present controversy is narrower. The
Respondent parents are the owners. The alleged proprietary right
of the Petitioner has not yet been adjudicated. Until such right is
declared by the competent Civil Court, mere assertion of a claim in
a pending suit cannot defeat the right of the senior citizens to seek
protection of their residence and property under the Act.
24.The submission that the proceedings were initiated at the
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instance of the elder brother does not carry the case of the
Petitioner further. There appear to be disputes within the family.
There have been civil and criminal proceedings between different
family members. There may be ill-feeling between the brothers.
However, existence of family disputes cannot establish that the
grievance made by the senior citizens is false. The application filed
by them has to be considered. The application refers to their
financial difficulties, medical expenses, rent, loan liability and
possession. These averments cannot be discarded merely because
another member of the family may be supporting the parents.
25.Ms. Bhange has relied upon the alleged sale of the property
in September 2015, subsequent transactions concerning another
property, the FIR and the charge-sheet, and has submitted that the
parents had derived substantial amounts through alleged
fraudulent transactions. These circumstances show that the parties
are involved in several disputes. However, the proceedings under
the Senior Citizens Act cannot become a trial for deciding every
allegation arising out of those transactions. Unless there is a
binding adjudication by a competent Court establishing such
allegations, those allegations cannot be treated as conclusive proof
that the senior citizens are financially secure or that their present
grievance concerning rent, medical expenses and possession is
false.
26.The same position applies to the contention that the parents
have purchased several properties since 2012 and have regular
income. Ownership of several properties can certainly be a
relevant circumstance. However, ownership of property or
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existence of earlier transactions does not establish the present
financial position of the senior citizens. A person may own
property and still face difficulty in meeting recurring expenses
because of loan liability, absence of regular income or other
financial obligations. In the present case, the senior citizens have
referred to repayment of loan, rent and medical expenses. The
assertion made by the Petitioner regarding their financial capacity
cannot be treated as conclusive.
27.Reliance was placed on Section 23 of the Act and the
decision in
Ranjana Rajkumar Makharia. In my view, this
submission does not carry the case of the Petitioner any further.
The present proceedings do not primarily concern a transfer made
by a senior citizen in favour of the Petitioner subject to a condition
that the Petitioner would provide basic amenities and physical
needs. The relief sought concerns possession and protection of use
of the property by the senior citizens. Therefore, the specific
requirements of Section 23 relating to declaration of a transfer as
void cannot be treated as controlling the entire controversy. At the
same time, the scheme of Section 23 indicates that the Act is
concerned with protection of property of senior citizens. Paragraph
61 of
Mughda Sahal notices that the power under Section 23 forms
part of the Chapter dealing with “Protection of life and property of
senior citizen”. Paragraph 62 observes that if the Tribunal can, in
an appropriate case, declare an inter vivos transfer void, the
authority enforcing the right of maintenance and the
corresponding obligation of the child or relative may have power
to direct removal of a child or relative who has unjustifiably
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deprived the senior citizen of the use and occupation of his or her
own property, or has created circumstances making such
occupation impossible.
28.The Petitioner has next contended that there is no finding
that he had harassed his parents. This submission requires
consideration. In
Jitendra Megh, as quoted in paragraph 51 of
Mughda Sahal, the Division Bench took note of the fact that the
application in that case was “bereft of any allegations of
harassment and/or cruelty by the Petitioner” and that there was
“no finding, let alone any discussion in terms of Section 9 of the
Act, that the senior citizen had suffered neglect at the hands of the
Petitioner”.
29.However, the facts of the present case cannot be treated as
identical. Here, the senior citizens have referred to non-payment of
rent, their inability to meet expenses including medical expenses,
and their requirement of possession and income from the property.
The application refers to the need to sell the building for
repayment of loan. Thus, the grievance is not merely that the
Petitioner is an unwanted family member. The application refers to
financial and residential consequences arising from the continued
occupation. Absence of elaborate use of words such as
“harassment” or “cruelty” cannot by render the proceedings
without substance.
30.I am unable to accept the submission that the impugned
order must be set aside only because there is no detailed finding
using the expression “harassment”. The protection contemplated
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under the Act is not confined only to cases involving physical
harassment or verbal cruelty. Where continued occupation of the
property is shown to affect the ability of the senior citizen to
obtain rent, possession or beneficial use of the property for
meeting legitimate requirements, the competent authority is
entitled to consider such circumstances.
31.The submission that the Additional Collector has not
sufficient reasons requires consideration. The impugned order may
not contain detailed reasons in the manner expected from a
regular Civil Court judgment. However, exercise of writ jurisdiction
is not intended to interfere merely because the reasons could have
been more elaborate. The relevant material shows that the parents
are the owners. The claim of the Petitioner is still pending
adjudication in the civil suit. The handwritten application contains
a grievance concerning financial need and possession. On the
totality of the circumstances, the conclusion reached by the
Additional Collector cannot be said to suffer from such perversity
or jurisdictional error as would warrant interference under Article
227.
32.The submission concerning the Petitioner's wife stands on a
somewhat different footing. It is correct that she was not
separately impleaded in the proceedings. The principal dispute
before the authorities was between the senior citizen parents and
the Petitioner, who was stated to be the occupant. Mere fact that
the Petitioner's wife resides with him does not by establish an
independent proprietary right in her favour. However, the order
passed in the proceedings will have to be understood with
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reference to the parties before the authority. The wife was not
heard and no adjudication was made concerning any independent
right which she may claim under law. The order cannot be
understood as deciding any such independent right. This does not
invalidate the finding concerning occupation of the Petitioner. It
only means that the order cannot operate as a final adjudication
against any independent right of the wife which was not the
subject matter of the proceedings.
33.The allegation of mala fides cannot be accepted on the
material available. Mala fides is a allegation. Mere existence of
family disputes, other properties or earlier transactions is
insufficient to establish that the proceedings under the Act were
instituted for an improper purpose. The application contains a
direct grievance regarding rent, medical expenses, loan liability
and possession. Therefore, there exists a real basis for approaching
the authority. The allegation of the Petitioner regarding ulterior
motive does not displace that basis.
34.Considerable reliance was placed on behalf of the Petitioner
on
Jitendra Megh. There can be no dispute regarding the binding
nature of that decision. However,
Mughda Sahal explains the
importance of factual context. Paragraph 63 states that
Jitendra
Megh
was rendered in “the peculiar facts as noted in the
observations of the Division Bench”. The principles emerging from
those decisions cannot be mechanically applied without examining
the factual position in the present case.
35.The facts of the present case have a closer connection with
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the principle recognised in
Mughda Sahal that residence forms
part of maintenance. Paragraph 55 explains that the obligation has
a negative aspect, namely, an obligation “not to deprive a senior
citizen of her own residence.” Paragraph 64 thereafter rejects the
absolute proposition that an application seeking eviction cannot be
maintainable merely because there is no separate prayer for
maintenance.36.I am unable to accept that the senior citizens are excluded
from protection of the Act merely because they own other
properties or have entered into earlier transactions concerning
properties. The purpose of the Act is not to undertake a
comparative inquiry into wealth of the senior citizen and the child.
The relevant question is whether the senior citizens require
protection in relation to their residence, maintenance or property
and whether continued occupation by the child or relative affects
their ability to live a normal and dignified life. When the
handwritten application is read as a whole, it shows such a
grievance. The senior citizens have referred to rent, medicines,
loan liability and possession. These matters have direct connection
with their support and use of the property. It would be artificial to
hold that merely because the word “maintenance” was not
separately incorporated in a formal prayer clause, the Tribunal was
entirely powerless to consider the application. Such approach
would be inconsistent with the reasoning contained in paragraphs
55 and 64 of
Mughda Sahal.
37.The Petitioner is not the owner of the property. His claim of a
share remains pending adjudication. His occupation may have
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originated within the family, but such occupation cannot override
the established ownership of the parents. If the competent Civil
Court ultimately declares a proprietary right in favour of the
Petitioner, the consequences of such declaration will follow in
accordance with the decree and applicable law. Mere pendency of
such possibility cannot defeat the present right of the senior
citizens to seek protection under the Act.
38.On an overall consideration, I find that the application
preferred by Respondent Nos.3 and 4 was maintainable. I find that
the contents of the application disclose a grievance connected with
maintenance, residence and use of their property. The assertion of
the Petitioner regarding joint family ownership remains
unadjudicated and, in the present proceedings, cannot defeat the
ownership of the senior citizens. I find that absence of a separately
framed prayer for maintenance is not decisive in view of the law
explained in
Mughda Sahal. The substance of the application has
to be examined. In the present case, contents of the application
disclose a grievance relating to maintenance and residence. The
principal contention raised by the Petitioner therefore fails on
merits.
39.The plea that the parties reside separately does not assist the
Petitioner. The statutory protection is not confined to cases where
the child and senior citizen are physically residing in the same flat.
The relevant question is whether the senior citizen is being
deprived of use, occupation or beneficial enjoyment of his or her
property in a manner affecting normal life. The continued
occupation of the flat by the Petitioner, coupled with the grievance
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regarding non-payment of rent and financial requirements stated
by the senior citizens, provided sufficient material for the authority
to consider the claim. The allegations concerning the elder brother,
criminal proceedings, earlier property transactions and alleged
fraud are collateral to the central issue before the authority. Those
matters may have relevance in proceedings in which they are
directly in issue. However, they do not establish a legal right in
favour of the Petitioner to continue in possession. Nor do they
disprove the present grievance of the senior citizens.
40.For these reasons, the Writ Petition fails on merits. The order
dated 27 June 2019 passed by Respondent No.1, Additional
Collector, Pune, in Appeal No.6 of 2019, does not require any
interference and is accordingly upheld.
41.The Petitioner shall hand over peaceful possession of the
premises in his occupation to Respondent Nos.3 and 4 with in four
weeks from today.
42.However, this direction shall not be construed as an
adjudication of any independent proprietary or statutory right, if
any, of the Petitioner's wife, who was not a party to the
proceedings.
43.This order shall also not prejudice adjudication of the claim
of the Petitioner in the pending partition suit.
44.The Writ Petition is accordingly dismissed. Rule is
discharged. There shall be no order as to costs.
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wp9856-2019-J.doc
45.At this stage, Ms. Bhange, learned Advocate for the Petitioner
requests for stay of operation and implementation of this judgment
and order. However, for the reasons assigned herein above, the
request for stay stands rejected.
(AMIT BORKAR, J.)
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