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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.5508 OF 2018

WITH
CRIMINAL APPLICATION NO.159 OF 2019
WITH
CRIMINAL APPLICATION NO.231 OF 2019

Mr. Niraj Shivkumar Maholay and Anr. … Petitioners

Versus
The State of Maharashtra and Ors. … Respondents

Mr. Nilesh Ojha a/w Mr. Shivam Mehta, Mr. Mangesh Dongre, Mr. Abhishek
Mishra i/b. Mr. Vijay S. Kurle for the Petitioners.

Mr. Niranjan Mundargi i/b. Ms. Vinaya G. Padwal for the Respondent Nos.2
and 3.

Ms. Pallavi Dabholkar, APP for the Respondent – State.

CORAM : SMT. SADHANA S. JADHAV, J.

DATE : 11th MARCH 2020.

P.C.:

1 Heard the respective counsel. The petitioners herein impugns

the judgment and order dated 17th October 2018 passed by the Sub-

Divisional Officer, Bombay thereby evicting the petitioners from residing

with his old aged parents and allow them to live peacefully in their house.

The order has been passed under the provisions of Maintenance and

Welfare of Parents and Senior Citizens Act, 2007. In the present case, the

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respondents herein are the parents of the Petitioner No.1. That, on 12 th

April 2018, the respondents herein filed an application under section 5 of

the said Act before the Sub-Divisional Officer. The averments in the

complaint are as follows :

i) That the applicants therein had been to Singapore to meet

their daughter. That in their absence the Petitioner No.1
herein has forged the signature of his father and has
withdrawn an amount of Rs.1,03,00,000/- (Rupees One
Crore Three Lakhs Only) from the account of the
Respondent No.2 and Rs.1,23,80,000/- (Rupees One Crore
Twenty-Three Lakhs Eighty Thousand Only) from the
account of the Respondent No.3 by forging their signature
in Bank of Baroda, Andheri (West) Branch;
ii) Upon returning from Singapore, the Respondents therein
had realised that they had been cheated and that their
funds were misappropriated by the petitioners and
therefore, they had no other alternative but to lodge FIR
against their own son;
iii) While in custody, the Petitioner No.1 had threatened his
parents of commission of suicide in the eventuality, that
they do not get him enlarged on bail. Therefore, they had
made all arrangements to enlarge them on bail;
iv) Thereafter, the respondents were being harassed by their
son and daughter-in-law on various counts. That they had
adopted different modalities to cause harassment to the
applicants therein. Harassment, was to such an extent that
the respondents had to approach the Commissioner of

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Police;
v) At last, the respondents had taken recourse to the
provisions of the Maintenance and Welfare of Parents and
Senior Citizens Act, 2007.

2 Notice was issued to the respondents i.e. the present

petitioners. It was contended by the petitioners that in fact, the house in

which the petitioners and the respondents are residing is not self-acquired

property of the Respondent No.1 but is an ancestral property and that the

petitioners have right to reside in the said property. It was submitted by

way of written arguments that there are property disputes between the

respondents and his brother as well as his sister. It was contended that the

respondents are indulging into abusing the very dignity of their daughter-

in-law.

3 It is admitted by both the counsel that the daughter-in-law of

the respondents i.e. the wife of the Petitioner No.1 herein has filed a

complaint against the Respondents before the 10 th Metropolitan Magistrate,

Andheri under the provisions of the Protection of Women from Domestic

Violence Act, 2005. The said complaint was filed on 15th June 2017. It was

contended that the Petitioner No.1 herein was paid a monthly salary of

Rs.15,000/-. However, it is admitted that he has a brother in the said firm.

The Petitioner No.1 has also filed a private complaint against his parents in

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which the Court has been pleased to issue process against respondents for

offences punishable under sections 406 and 420 of the Indian Penal Code.

4 At the outset, the learned counsel for the petitioners has

vehemently submitted that the powers of eviction cannot be exercised by

the Sub-Divisional Officer and the powers are to be exercised by the

District Magistrate alone. The learned counsel has placed reliance upon the

judgment of the Punjab and Haryana High Court in the case of

Harmohinder Singh Vs. State of Punjab and Ors .1, wherein the Court has

held thus :

“We have gone through the Rules of 2012, framed by the

Punjab Government, under sub-sections (1) and (2) of
Section 32 of the Act of 2007. In our opinion, these Rules are
comprehensive Rules, which deal with the object of the Act of
2007 and give sufficient mechanism to take care of the
maintenance of senior citizens and protect their life and
property. Not only a Tribunal has been constituted, but an
Appellate Authority has been provided to hear grouses of the
senior citizens with regard to their maintenance, including
protection of their life and property. A complete mechanism in
this regard has been provided. Under Rule 22 of the Rules of
2012, the District Magistrate has to ensure that life and
property of senior citizens of the district are protected. The
District Magistrate has ample power under the Cr.P.C., to
protect a person, who is in possession of a property. If a
person, who is in settled possession of a property, has been
illegally dispossessed, the District Magistrate has ample power
under the Cr.P.C., to protect possession of such person. But the
District Magistrate, in our opinion, cannot be empowered to
evict a person, who is in possession of a property for a long
time. Such person can be dispossessed by following due
process of law. If the District Magistrate is permitted to
1 (2018) SCC Online P&H 4071

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summarily evict such person, it will cause great injustice to

the person, who is in settled possession. He may be in
possession under some right.”

5 The Court was placing reliance upon the Rules framed by the

Punjab Government. In any case, there was a suit for partition and

possession pending between the parties and the same has been taken into

consideration.

6 The learned counsel for the respondents has submitted that all

that section 22 speaks about, is conferment of powers on sub-ordinate

officers, in order to achieve the aims and objectives of the said Act. Section

22 reads as follows :

“22. Authorities who may be specified for implementing the

provisions of this Act. - (1) The State Government may,
confer such powers and impose such duties on a District
Magistrate as may be necessary, to ensure that the
provisions of this Act are properly carried out and the
District Magistrate may specify the officer, subordinate to
him, who shall exercise all or any of the powers, and
perform all or any of the duties, so conferred or imposed
and the local limits within which such powers or duties
shall be carried out by the officer as may be prescribed.

(2) The State Government shall prescribe a comprehensive

action plan for providing protection of life and property of
senior citizens.”

7 There is nothing on record even to remotely indicate that such

powers were not conferred upon the Sub-Divisional Officer. In fact, the very

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object of this Act is to protect the life, liberty, dignity and property of senior

citizens and parents who are in peril at the hands of their own children and

grandchildren.

8 The learned counsel for the respondents has placed reliance

upon the judgment of this Court in the case of Dattatrey Shivaji Mane Vs.

Lilabai Shivaji Mane and Ors ., (Writ Petition No.10611 of 2018) wherein

this Court has observed as follows :-

31. In my view, Section 4 cannot be read in isolation but has to

be read with Section 23 and also Sections 2(b), 2(d) and
2(f) of the said Act. The respondent no.1 mother cannot be
restrained from recovering exclusive possession from her
son or his other family members for the purpose of
generating income from the said premises or to lead a
normal life. In my view, if the respondent no.1 mother who
is 73 years old and is a senior citizen, in this situation, is
asked to file a civil suit for recovery of possession of the
property from her son and his other family members who
are not maintaining her but are creating nuisance and
causing physical hurt to her, the whole purpose and objects
of the said Act would be frustrated.

32. In my view, since under Section 23 of the said Act, a senior

citizen is entitled to apply for a declaration of gift or
transfer of his/her property by any other means given
subject to the condition that the transferee shall provide
the basic amenities and basic physical needs to such senior
citizen and such child or grand child refuses to provide
such amenities and physical needs, such senior citizen can
apply for declaration of such transaction to be void, such
senior citizen can even apply for recovery of possession
from her child or grand child in the event of the child
refusing to maintain such senior citizen and parents or
does not comply with the obligations extending to the
needs of senior citizen or such parents to enable such

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senior citizen or parents to lead a normal life. Such parents

and senior citizen can certainly apply for recovery of vacant
possession of the property and for a relief restraining such
child or grand child or his other family members who are
claiming through such child from entering upon the
property of such senior citizen or parents. In my view, there
is thus no merit in the submission of the learned counsel
for the petitioner that the Tribunal could not have passed
an order of eviction against the petitioner and his family
members from the tenament owned by the respondent no.1
under the provisions of the said Act.”

9 The contention of the petitioners is that the said property from

where the petitioners are being evicted is not a self-acquired property but

is an ancestral property and that the Petitioner No.1 has been living there

with his wife since long and therefore, his possession cannot be disturbed.

The object of the said Act of 2007 has to be achieved by all means as it is

special statute to protect the interest of the parents and senior citizens to

let them live in peace and with dignity.

10 Although the said property is ancestral property, the Court

cannot be oblivious of the fact that the interest in the said property, would

devolve upon the petitioners through the parents. As on today, the life,

liberty, dignity and property of the respondents is of paramount

importance.

11 It is also submitted by the learned counsel for the petitioners

that as on today, the petitioners are residing in the share which is allotted

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to uncle of the Petitioner No.1 and not in the share of the said property

wherein the respondents are residing. The said property consists of ground

+ four floors and the petitioners are residing on the third floor whereas

the respondents are residing on the ground floor.

12 It is also submitted that ever since the order of eviction is

passed, the respondents are living peacefully and that the petitioners have

not disturbed their possession in the said property. It can be inferred that,

as of today, the petitioners and the respondents are not residing in a

shared household or that they are residing under the same roof. No case is

made out by the petitioners to set aside the findings and the order passed

by the Sub-Divisional Officer. The other proceedings may take its own

course.

13 In view of this, the petition being sans merit stands dismissed

and disposed of accordingly. These observations are restricted to the

petition under the provisions of the Maintenance and Welfare of Parents

and Senior Citizens Act, 2007 and shall not be considered in any other

proceedings between the parties.

(SMT. SADHANA S. JADHAV, J.)

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