ASN 1 WP-9072.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9072 OF 2010 Mr. Bhimsen B. Khurana and anr. ..Petitioners. Vs. Mr. Rohit Bhimsen Khurana and anr. ..Respondents. Ms. Kanchan S. Kambli for the petitioners. Mr. Bhimsen Bhagwandas Khurana present in person. Mrs. Lalita Bhimsen Khurana present in person. Mr.Rohit Bhimsen Khurana-respondent No.1 present in person. Mrs. Neha Rohit Khurana-respondent No.2 present in person. CORAM : MOHIT S. SHAH, C.J. & S.J. VAZIFDAR, J. WEDNESDAY, MARCH 09, 2010. PC : This petition purports to be under Articles 226 and 227 of the Constitution. The petitioners who are senior citizens, have prayed for a declaration that the petitioners are co-owners of the flat bearing No.J-1203, Jal Vayu Defence Enclave, Nargis Building, Sector 20, Plot No.20, Khargar, Navi Mumbai as they have contributed 60% of the value of the said flat. The petitioners have also prayed for directions to respondent No.2 and her mother to withdraw themselves from the said flat and that the petitioners be allowed to stay in that flat. The petitioners have also prayed for a decree of partition. In view of the above, it is clear ASN 2 WP-9072.sxw that the petitioners are asking the civil rights in immovable property in question. 2 It is obvious that, such a petition would not be maintainable under Article 226 and 227 of the Constitution. However, on 1st December, 2010 the petitioners had appeared before us as party in person and had indicated that the matter will be amicably settled if notice is issued to respondent No.1. Accordingly, notice was issued and in pursuance of the said notice the respondents appeared before the Court. The respondent No.1 is the petitioners’ son and respondent No.2 is the daughter-in-law of the petitioners. 3 The prayer clause (d) is for directions to Respondent No.1 ( Petitioners’ son ) to pay the petitioners maintenance of a sum of Rs. 15,000/- per month. As far as prayer clauses (a), (b) and (c) are concerned, they are in respect of civil rights and cannot be entertained in this petition. The petitioners are always at liberty to adopt proceedings including for the same reliefs before the appropriate forum. As far as prayer clause (d) is concerned, the petitioners have invoked the provisions of the Maintenance & Welfare of Parents and Senior Citizens Act, 2007. However, the said Act also provides for enforcement of rights of the parents and senior citizens before the Tribunal or Tribunals to be constituted for each Sub Division to be presided over by an officer not below the rank of Sub Divisional officer of a State. The learned counsel for the petitioners states that the Tribunal constituted under the provisions of the said Act was notified on 28th ASN 3 WP-9072.sxw September, 2010 in Maharashtra Government Gazette dated 1st October 2010 Part-4A Page 2 under which Sub Divisional Officer was appointed to be the Presiding Officer for the said Tribunal within the jurisdiction of his Sub Division for the purposes of adjudicating and deciding upon the order for maintenance under Section 5 of the said Act and the District Magistrate of the concerned District is appointed as the Appellate Tribunal. 4 Attempts were made by this Court on 15th December, 2010 as well as today for amicable settlement between the parties. However, it appears that no settlement is arrived at between the parties. Therefore, we leave it open to the parties to assert their civil rights before the appropriate forum. The petition is therefore, dismissed as not maintainable. However, we make it clear that, this order will not come in the way of any of the parties to approach the appropriate forum. 5 The respondent No.2 appears as party in person and opposed the prayer for grant of maintenance by respondent No.1 to the petitioners. The respondent No.2 submits that the petitioners are staying with respondent No.1 and this petition has been filed to deprive respondent No.2 and the two minor children from getting their maintenance. As submitted by respondent No.2, the maintenance awarded by the Lower Courts in favour of the children is also not being paid since last many years. While dismissing the petition as not maintainable, we direct that in proceedings which the petitioners may file against respondent No.1 for maintenance or for any other reliefs including in respect of the Flat No.J-1203, Jal Vayu Defence Enclave, ASN 4 WP-9072.sxw Nargis Building, Sector 20, Plot No.20, Khargar, Navi Mumbai, the petitioners shall join respondent No.2 as party to such proceedings and the concerned Court/Authority shall hear respondent No.2. CHIEF JUSTICE S.J. VAZIFDAR, J.