VERDICTUM.
IN
2025:BHC-AS:11709
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.882 OF 2024
Vimal Dagadu Kate & Anr. ....Petitioners
V/S
State of Maharashtra & Ors. ....Respondents
WITH
INTERIM APPLICATION NO.7682 OF 2024
IN
WRIT PETITION NO.882 OF 2024
Vimal Dagadu Kate & Anr. ....Applicants
IN THE MATTER BETWEEN
Vimal Dagadu Kate & Anr. ....Petitioners
V/S
State of Maharashtra & Ors. ....Respondents
_________
Mr. Santosh S. Jagtap with Mr. Amar K. Shilwant for the
Petitioners/Applicants.
Mr. S.D. Rayrikar, AGP for Respondent Nos.1 and 3/State.
Mr. Mahesh H. Chandanshiv appointed Advocate for
Respondent No.2.
Ms. Suman R. Pawar representative of Respondent No.2 (younger
sister) present in Court.
__________
CORAM: SANDEEP V. MARNE, J.
DATE : 10 MARCH 2025.
P.C.:
1. Rule. Rule is made returnable forthwith. With the consent
of the learned counsel appearing for parties, the Petition is
taken up for hearing and final disposal.
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2. By this Petition Petitioners have challenged order dated 30
October 2023 passed by the Maintenance and Welfare of Senior
Citizen Tribunal (Tribunal) under Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 (the Act) by which the
Tribunal has directed Petitioners to handover possession of the
premises to Respondent No.2.
3. I have heard Mr. Jagtap, the learned counsel appearing for
the Petitioners, Mr. Chandanshiv, the learned counsel appearing
for Respondent No.2 and Mr. Rayrikar, the learned AGP
appearing for the Respondent Nos.1 and 3/State.
4. After having considered the submissions canvassed by the
learned counsel appearing for parties, it is seen that Respondent
No.2 filed proceedings under the Act for seeking eviction of the
Petitioners from the premises located on first floor of the slum
structure. It is an undoubted position that Respondent No.2
herself resides in the ground floor premises and her real grouse
is that the Petitioners have encroached upon the first floor
premises of the structure. This clearly appears to be proceedings
for recovery of possession of first floor premises. which in my
view cannot be filed by invoking the provisions of the Act. The
proceedings appear to my mind in the nature of suit for recovery
of possession of first floor premises, which could not have been
entertained and decided by the Tribunal. To make the case of
Respondent No.2 worse, Petitioner No.1 is her sister and also a
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senior citizen. Jurisdiction of Maintenance Tribunal cannot be
invoked by one senior citizen to recover possession of premises
from another senior citizen. Petitioner No.1 is admittedly not
supposed to maintain Respondent No.2. Therefore jurisdiction of
the Tribunal could not have been invoked to seek recovery of
possession of first floor premises from the Petitioners. In
Summary Inquiry conducted by the Tribunal, complicated
questions about right of an occupier to possess first floor
premises cannot be adjudicated. Such adjudication can be
undertaken only before a Civil Court. In my view therefore, the
present case involves gross abuse of jurisdiction of the Tribunal
which is utilized for the purpose of securing possession of first
floor premises from one senior citizen by another senior citizen.
5. Considering the above unique facts and circumstances of
the present case, I am not inclined to entertain the objection
about maintainability of the present Petition raised by the
learned counsel for Respondent No.2 by relying on Division
Bench judgment of this Court in Jagdish Pitamber Pawar vs.
Pitamber Pundalik Pawar and others, in Writ Petition No.36
of 2023, decided on 29 November 2023 about availability of
alternate remedy of filing Appeal before the Appellate Authority.
Since the order is without jurisdiction, there is no point in
relegating the Petitioners to alternate remedy of Appeal
considering the unique facts and circumstances of the present
case. It is however clarified that this order shall not be read to
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mean as if the alternate remedy of Appeal can be circumvented
in every case by filing a direct Petition before this Court. The
present order is passed in unique facts and circumstances of the
case and shall not be treated as precedent in any other case.
6. Mr. Chandanshiv would complain that while occupying the
premises on the first floor, Petitioners are not even paying
electricity charges, water charges etc. Mr. Jagtap would submit
that Petitioners shall duly pay the entire dues of electricity
charges, water charges etc. in respect of their occupation of first
floor premises.
7. The Petition accordingly succeeds and I proceed to pass the
following order:
i) Order dated 30 October 2023 passed by the
Maintenance Tribunal is set aside.
ii) Respondent No.2 would be at liberty to initiate such
proceedings as would be maintainable for recovery of
possession of first floor premises from the Petitioners.
iii) Till Respondent No.2 adopts necessary remedies for
seeking recovery of possession of first floor premises from
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the Petitioners, the Petitioners shall not cause any
harassment or torture to Respondent No.2-senior citizen.
iv) Time spent in prosecuting the proceedings before the
Maintenance Tribunal shall be excluded while computing
the period of limitation for institution of Civil Suit.
8. With the above directions, the Petition is allowed and
disposed of. Rule is made absolute. No order as to costs.
9. In view of the disposal of the Writ Petition, nothing would
survive in the Interim Application for stay and the same is also
disposed of accordingly.
(SANDEEP V. MARNE, J.)
Digitally signed
by SUDARSHAN
SUDARSHAN RAJALINGAM
RAJALINGAM KATKAM
KATKAM Date:
2025.03.13
10:40:16 +0530
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