Bail to be issued on merits and on the ground of prolonged incarceration, which infringes his right to life and personal liberty : Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2631 OF 2021 Ritika Prashant Jasani Anjana Niranjan Jasani and others Mr. Kishor Maru for Petitioner Mr. Anoshak Daver a w. Ms. Kausar Banatwala Ms. Neuty Thakkar and Ms. Tanishka Desai i b. Mr. Tushar Goradia for Respondent No.1 Ms. Anjana N. Jasani Respondent in person Ms. Ritika Jasani Petitioner in person CORAM : UJJAL BHUYAN MADHAV J. JAMDAR JJ Reserved on Pronounced on : AUGUST 13 2021 JULY 15 2021 JUDGMENT AND ORDER :along with respondent No.1. The said flat MINALSANDIPPARABDigitally signedby MINALSANDIP PARABDate:2021.08.1311:41:51 +0530 WP2631_21.doc originally belonged to Mr. Anandlal Jasani who during his lifetime made nomination in respect of the said flat whereby twenty percent share of the flat was granted in favour of petitioner’s husband Mr Prashant Niranjan Jasani Mr. Anandlal Jasani died in the year 2007 whereafter his son Mr. Niranjan Anandlal Jasani Mrs. Anjana Niranjan Jasani and Mr. Prashant Niranjan Jasani alongwith other legal heirs of the deceased Mr. Anandlal Jasani were entitled to equal rights and shares in the said Be it stated that Mr. Niranjan Anandlal Jasani is the father in law of the petitioner i.e. father of Mr. Prashant Jasani and husband of Anjana Niranjan Jasani i.e. respondent No.1 Since her marriage with Mr. Prashant Jasani petitioner has been residing in the said flat alongwith respondent No.1 and the late Niranjan Anandlal Jasani till his death. Be it stated that Mr. Niranjan Anandlal Jasani died intestate at Mumbai on 11.04.2016. Therefore petitioner claims the said flat to be her matrimonial home as well as her shared household. Petitioner her husband daughter and respondent No.1 are residing in the said flat It is stated that petitioner and respondent No.1 earns income mainly from the following sources : Rent from the office premises at Arun Chamber Tardeo for Rs.35 000 per month From the interest accrued on the shares which would be about Rs.30 000 per month Respondent No.1 is carrying on catering business on a limited scale earning therefrom Rs.10 000 to Rs.15 000 per month Petitioner has stated that her husband Prashant Niranjan Jasani is suffering from mental illness and depression because of which he requires regular treatment and counseling. He is not in a position to contribute to the earnings of the family 8.2. Allegation of the petitioner is that respondent No.1 wants to sell the said flat and thereafter to retain the sale consideration to herself so as to enable her to lead an affluent lifestyle. Petitioner and her husband are opposed to selling of the flat. Petitioner states that the said flat is not self acquired property of respondent No.1 rather it is an ancestral property of the family of the petitioner’s husband wherein petitioner’s husband petitioner and their minor daughter have equal right title 8.3. Respondent No.1 with an oblique motive to oust the petitioner her husband and minor daughter from the flat filed a complaint dated 26.04.2019 before the Tribunal for Maintenance and Welfare of Parents and Senior Citizens for eviction of the petitioner and her husband Prashant Jasani from the flat so as to allow her to reside in the flat all by herself. Petitioner filed her objection dated 08.12.2020. She denied all the allegations levelled against her and her husband by respondent No.1 According to her respondent No.1 has high expectations from life and she has always loved luxury. She has very rich friends and her daughters are also extremely rich. Respondent No.1 looks down upon the petitioner and her husband as they do not have high income and are not upto her standard. After the death of father in law respondent No.1 wanted to sell the flat to sustain her luxurious lifestyle to which petitioner and her husband did not agree. Because of that respondent No.1 was annoyed for which she on her own moved out of the flat about two years ago but keeping two rooms locked. Petitioner stated that because of his illness her husband used to take heavy dosage of medicines which kept him drowsy for long hours. Respondent No.1 never offered any help to the petitioner in raising her daughter despite her son’sill health. Petitioner has asserted that her husband’s grandfather Anandlal Jasani had nominated twenty percent share of the flat to her husband. She had strongly denied execution of any will by her father in law in favour of respondent No.1 Asserting that as the daughter in law she has all the right to live with dignity in her shared household petitioner has denied meting out any ill treatment to respondent No.1 not to speak of torture etc. She also stated that her family i.e. she her husband and daughter have no other residence and that the flat is their only shelter Tribunal by order dated 15.12.2020 allowed the complaint of respondent No.1 and ordered petitioner and her husband to vacate and to hand over possession of the said flat to respondent No.1 within 60 days from the date of receipt of the said order failing which it was stated that they would be evicted from the flat by use of force. Tribunal however clarified that the said order was limited for the purpose of allowing respondent No.1 to take possession of the flat and to stay peacefully and happily therein the said order should not be construed as allowing respondent No.1 to sell or transfer the same 10. Aggrieved present writ petition has been filed seeking the reliefs as indicated above This Court by order dated 15.04.2021 passed an interim order to the effect that no coercive steps should be taken against the petitioner pursuant to the order dated 15.12.2020 Learned counsel for the petitioner has referred to section 4 of the Maintenance and Welfare of Parents and Senior Citizens Act 2007 briefly “the 2007 Act” hereinafter) and submits that under the said provision Tribunal can only award maintenance to a senior citizen including a parent. To support his above contention he has referred to section 9 of the 2007 Act which deals with order for maintenance as well as definition of the word “maintenance” as provided in section 2(b Without ordering for payment of maintenance Tribunal could not have ordered petitioner and her husband to vacate the flat. Section 4 does not contemplate passing of order for eviction of son and daughter in law 12.1. His second submission is that the impugned order is a non speaking order. Tribunal had recorded the rival contentions and thereafter culled out certain observations based on the rival contentions However without any proper deliberation abrupt order for vacation eviction was passed by the Tribunal 12.2. Learned counsel for the petitioner submits that the flat in question is an ancestral property to which both husband of the petitioner and respondent No.1 have right and entitlement. Therefore Tribunal could not have ordered summary eviction of the son and the daughter in lawfrom the ancestral property 12.3. Another submission of learned counsel for the petitioner is that she had specifically contended before the Tribunal that the flat in question is her “shared household” within the meaning of section 2(s of the Protection of Women from Domestic Violence Act 2005 briefly “the 2005 Act” hereinafter). This aspect was not considered by the Tribunal. 12.4. He therefore submits that the impugned order dated 15.12.2020 is wholly untenable in law as well as on facts and is as such liable to be set aside and quashed Per contra learned counsel for respondent No.1 submits that respondent No.1 is a senior citizen and a parent. She is not only unable to maintain herself but is also subjected to intimidation and harassment at the hands of petitioner and her husband. Petitioner had directly interfered with her catering business rendering her unable to maintain herself. He submits that from a reading of the 2007 Act as a whole it is quite clear that the Tribunal constituted thereunder has the jurisdiction to pass an order of vacation of premises by the children or relative in this case son and daughter in law though curiously son has not assailed the impugned order of the Tribunal. He has placed reliance on a single bench decision of this court in Dattatraya Shivaji Mane Vs Lilabai Shivaji Mane Writ Petition No.10611 of 2018 decided on 26.06.2018 in support of his contention that Tribunal is empowered to pass an order of eviction under the provisions of the 2007 Act In his reply submissions learned counsel for the petitioner submits that the dispute in this case is between daughter in law and mother in law. While the mother in law seeks eviction of the daughter in law from the flat on the strength of the 2007 Act the daughter in law seeks to enforce her right to reside in the shared household on the strength of the 2005 Act. Provisions of both the acts are required to be reconciled and read harmoniously. In this connection he has placed reliance on a recent decision of the Supreme court in Smt. S. Vanitha Vs Deputy Commissioner Bangalore Urban District Civil Appeal No.3822 of 2020 decided on 15.12.2020 since reported in AIR 2021 SC 177 Submissions made by learned counsel for the parties have received the due consideration of the court 16. At the outset we may advert to the impugned order dated 15.12.2020. In the said order Tribunal has summed up the grievance of respondent No.1in the following manner: 1. Respondent No.1 is a senior citizen staying in the flat since last 45 years 2. Respondent No.1 is the mother in law of the petitioner and is now a widow supporting her mother of Prashant Niranjan Jasani 3. Both respondent i.e. son and wife scared and tortured respondent No.1. Both compelled her to leave the flat whereafter she had to reside with her daughters 4. Petitioner and her husband are residing in the flat 5. Husband of respondent No.1 expired on 11.04.2016 and she 6. After the death of her husband respondent No.1 has been subjected to more ill treatment by her son and daughter in 7. Respondent No.1 is taking assistance of helpers to meet her day to day expenses. Son and daughter in law are not 8. Husband of respondent No.1 had executed will of his property in favour of respondent No.1. The said will was subsequently probated according to which ownership rights of the flat were recorded in the name of respondent No.1 Register of the concerned society also discloses respondent No.1 as the owner of the flat 9. Son of respondent No.1 is an alcoholic. He keeps arguing with her and often insults her. Both son and daughter in law have threatened respondent No.1 that unless she pays Rs.5 crores to them they would keep torturing her and would also lodge a complaint before the police. They also interfere in her work making it difficult for her to carry on her business from the flat 10. However respondent No.1 has admitted that her son and daughter in law got married on 16.11.2007 whereafter they started residing in the flat. They have a minor daughter by the name of Samaira 11. Because of ill treatment meted out to respondent No.1 by her son and daughter in law she is suffering from several ailments like high blood pressure and diabetes. She now depends upon her three daughters namely Amruta Bhargav Rishita Gupta and Shalini Choksi 16.1. On the other hand Tribunal has summed up the objection of the petitioner and her husband in the following manner: 1. Respondent No.1 does not like her daughter in law petitioner) and this is reflected in her attitude towards the petitioner and her husband Since marriage petitioner has been residing in the said flat as her matrimonial home where her minor daughter is also staying. All of them are leading a peaceful life 3. Respondent No.1 has big expectations. Her daughters are rich so also her friends. She therefore would like to live as a rich person. Petitioner’s husband is not rich. Therefore respondent No.1 does not treat him at par with her daughters and rich friends 4. Respondent No.1 carries on catering business from home through which she earns about Rs.10 000.00 to 15 000.00 per month. After the death of petitioner’s father in law respondent No.1 has been planning to sell the office and the flat. However she has not extended any help to her son i.e. husband of the petitioner 5. Respondent No.1 wants that petitioner and her husband should give her permission to sell the flat. However the flat was in the name of husband’s grandfather. Some shares were given to petitioner’s husband by grandfather Petitioner has denied about execution of any will by husband of respondent No.1 7. The flat is registered jointly in the names of respondent No.1 and husband of the petitioner though respondent No.1 keeps on pressurizing the housing society to register the said flat only in her name Petitioner contended that she has a right to live in the flat Grandfather had granted twenty percent share in the flat to the husband of the petitioner 9. Respondent No.1 stays with her daughters because they are 10. Petitioner has denied the allegation that she and her husband ill treated respondent No.1 and had expelled respondent No.1 from her flat 16.2. On the basis of the rival contentions Tribunal culled out the following distinguishing features: Respondent No.1 is a senior citizen and petitioner is the daughter in law of respondent No.1 Respondent No.1 has four legal heirs i.e. Mr. Prashant Jasani Mrs. Amruta Bhargav Mrs. Rishita Gupta and Mrs. Shalini Choksi and she is a widow Husband of respondent No.1 had expired on 11.04.2016 According to respondent No.1 there is frequent quarrel between her and her daughter in law i.e. petitioner which causes mental trauma to her. Therefore she goes away to stay with her daughters Documents on record reveal that the flat is in the name of Mrs. Anjana Niranjan Jasaniand her son Mr. Prashant Niranjan Jasani. From nomination form No.14 it transpires that Mr. Niranjan Anandlal Jasani had sixty percent share Mrs. Anjana Niranjan Jasani has twenty percent share and Mr. Prashant Niranjan Jasani has twenty percent share in the flat 16.3. After culling out the distinguishing features of the lis Tribunal recorded its findings in the following manner: Petitioner and her husband should improve their behaviour They should not quarrel with respondent No.1 or do such acts which may upset her Respondent No.1 a senior citizen has the right to live a peaceful life in her own flat but she is upset because petitioner and her husband quarrel with her Petitioner and her husband are highly educated and young people. Hence they should make their own arrangement for livelihood and stay. They already have one office shop on rent from which they earn rental income of Rs.35 000.00 per month. They also earn Rs.30 000.00 per month from investments. Therefore petitioner and her husband have reasonable income Respondent No.1 expressed her desire to sell the flat and to distribute the sale proceeds amongst the petitioner and her husband as per their shares to which they have raised 16.4. Interestingly Tribunal has held that the flat is an ancestral property and that both respondent No.1 and the petitioner along with her husband have joint rights. In so far sale of the flat is concerned it is beyond the jurisdiction of the Tribunal 16.5. Tribunal has opined that as per sections 4(2) and 4(3) of the 2007 Act it is the obligation of the children or the relatives as the case may be to maintain a senior citizen to the extent of the needs of such senior 16.6. On the basis of such findings and relying upon sections 4 5 9 13 and 23 of the 2007 Act Tribunal ordered petitioner and her husband to vacate the flat and to handover possession thereof to respondent No.1 within 60 days to enable respondent No.1 to lead a normal and peaceful life. Tribunal has further ordered that if the petitioner and her husband fail to vacate the flat within 60 days they would be evicted therefrom by using force. It has however been clarified that the impugned order is limited for the purpose of allowing respondent No.1 to take possession of the flat and to reside therein peacefully and happily. The impugned order is not for the purpose of sale or transfer of the flat for which parties may approach the competent authority for decision 17. Having noticed and examined the various facets of the impugned order dated 15.12.2020 it would be apposite to deal with the relevant provisions of the 2007 Act 17.1. The statement of objects and reasons for enactment of the 2007 Act is as under: Traditional norms and values of the Indian society laid stress on providing care for the elderly. However due to withering of the joint family system a large number of elderly are not being looked after by their family. Consequently many older persons particularly widowed women are now forced to spend their twilight years all alone and are exposed to emotional neglect and to lack of physical and financial support This clearly reveals that ageing has become a major social challenge and there is a need to give more attention to the care and protection for the older persons. Though the parents can claim maintenance under the Code of Criminal Procedure 1973 the procedure is both time consuming as well as expensive. Hence there is a need to have simple inexpensive and speedy provisions to claim maintenance for parents The Bill proposes to cast an obligation on the persons who inherit the property of their aged relatives to maintain such aged relatives and also proposes to make provisions for setting up oldage homes for providing maintenance to the indigent older persons The Bill further proposes to provide better medical facilities to the senior citizens and provisions for protection of their life and property The Bill therefore proposes to provide for: appropriate mechanism to be set up to provide need based maintenance to the parents and senior citizens providing better medical facilities to senior for institutionalisation of a suitable mechanism for protection of life and property of older persons setting up of oldage homes in every The Bill seeks to achieve the above objectives.” 17.2 Preamble to the 2007 Act indicates that it is an act to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognized under the constitution and for matters connected therewith or incidental thereto 17.3. Before adverting to the definitions as provided in section 2 we may note that as per section 3 provisions of the 2007 Act has overriding effect. It says that provisions of the 2007 Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than the 2007 Act or in any instrument having effect by virtue of any enactment other than the 2007 Act. 17.4. Section 5 deals with application for maintenance. As per sub sectionan application for maintenance may be made by a senior citizen or by a parent as the case may be or if he is incapable by any other person or organization authorized by him or the Tribunal may take cognizance suo moto. As per sub sectionon receipt of an application for maintenance under sub sectionthe Tribunal after giving notice to the children or to the relative and after giving the parties an opportunity of being heard hold an inquiry for determining the amount of maintenance. Under sub sectionTribunal may order payment of interim maintenance during pendency of the proceeding. Sub sectionprovides that failure to pay maintenance as ordered by the Tribunal may lead to issuance of warrant and 17.5. Maintenance of parents and senior citizens is provided in section 4. As per sub sectiona senior citizen including a parent who is unable to maintain himself from his own earning or out of the property owned by him shall be entitled to make an application under section 5 in case of parent or grand parent against one or more of his children not being a minor and in case of a childless senior citizen against such of his relative referred to in section 2(g). Sub sectionsof section 4 mandates that it is the obligation of the children or relative as the case may be to maintain a senior citizen or parent to the extent that the senior citizen or parent may lead a normal life 17.6. Reverting to the definitions in section 2 we find that “maintenance” has been defined in section 2(b) to include provision for food clothing residence and medical attendance and treatment. Section 2(f) defines “property” to mean property of any kind whether movable or immovable ancestral or self acquired tangible or intangible and includes rights or interest in such property. “Relative” has been defined in section 2(g) to mean any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit his property after his death. Under sub sectionof section 2 “senior citizen” has been defined to mean any person being a citizen of India who has attained the age of 60 years or above. 17.7. Tribunal is constituted under section 7 of the 2007 Act whereas jurisdiction and procedure are dealt with in section 6. Section 8 clarifies that summary procedure will be followed in case of inquiry. However the Tribunal shall have all the powers of a civil court for the purpose of taking evidence on oath and of enforcing attendance of witnesses etc. Tribunal shall be deemed to be a civil court for the purpose of section 195 and Chapter XXVI of the Code of Criminal Procedure 17.8. Section 9 deals with order for maintenance. As per sub sectionthe maximum maintenance allowance which may be ordered by the Tribunal shall be such as may be prescribed by the State Government which shall however not exceed ten thousand rupees per month 17.9. Section 15 deals with constitution of Appellate Tribunal. Sub sectionsays that State Government may by notification in the official gazette constitute one Appellate Tribunal for each district to hear appeal against the order of the Tribunal. Section 16 provides for filing of appeals As per section 23 transfer of property to be void in certain circumstances. Sub sectionsays that where any senior citizen who after commencement of the 2007 Act has transferred by way of gift or otherwise his property subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal Sub sectiondeals with a scenario where any senior citizen has a right to receive maintenance out of an estate and when such estate or part thereof is transferred the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right or if the transfer is gratuitous but not against the transferee for consideration and without notice of right In so far the present case is concerned petitioner has contended that the flat in question is a shared household and that she has a right to reside in the shared household. “Shared household” as defined in section 2(s) of the 2005 Act means the following : “(s) "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right title interest or equity and includes such a household which may belong to the joint family of which the respondent is a member irrespective of whether the respondent or the aggrieved person has any right title or interest in the Relying on a recent judgment of the Supreme Court in Satish Chandra Ahuja Vs. Sneha Ahuja Civil Appeal No.3483 of 2020 decided on October 15 2020 since reported in 1 SCC 414 Supreme Court in the case of Smt. S. Vanitha has held that definition of shared household in section 2(s) of the 2005 Act is an exhaustive one. Thereafter the definition of the expression “shared household” has been analyzed by the Supreme Court in the following “19. The definition of ‘shared household’ in Section 2(s of the PWDV Act 2005 is exhaustive. This has also recently been held to be so by a judgment of a three judge bench of this Court delivered by Justice Ashok Bhushan in Satish Chandra Ahuja vs Sneha Ahujaof the PWDV Act of 2005 is in two parts: in the means part of the definition the expression ‘shared household’ means i) A household where the person aggrieved lives in a domestic relationship either singly or along with the respondent or ii) At any stage has lived in a domestic relationship either singly or along with the respondent This is followed by an inclusive element so as to cover such a household whether owned or tenanted either jointly by the aggrieved person and the respondent orincludes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent and owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right title interest or equity andincludes such a household which may belong to the joint family of which the respondent is a member irrespective of whether the respondent or the aggrieved person has any right title or interest in the shared household. In the above definition two expressions namely “aggrieved person” and “respondent” have occurred. From the above definition following is clear: i) it is not requirement of law that aggrieved person may either own the premises jointly or singly or by tenanting it jointly or singly the shared household may either be owned or tenanted by the respondent singly or jointly.” 19.1. Supreme Court has further observed that after noticing the ambit of the definition of ‘shared household’ and the object and purpose of the 2005 Act Justice Ashok Bhushan in Satish Chandra Ahuja read with Sections 17 and 19 of Act 2005 grants an entitlement in favour of the woman of the right of residence under the shared household irrespective of her having any legal interest in the same or not.” 19.2. Supreme Court noted that the expression “respondent” has been defined in section 2of the 2005 Act in the following terms “(q) "respondent" means any adult male person who is or has been in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:” 19.3. Noticing the above definition and the provisions of section 2(s) Supreme Court in Satish Chandra Ahujaheld “64...The definition of shared household as noticed in Section 2(s) does not indicate that a shared household shall be one which belongs to or taken on rent by the husband. We have noticed the definition of “respondent” under the Act. The respondent in a proceeding under Domestic Violence Act can be any relative of the husband. In event the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household 84...The definition of shared household given in Section 2(s cannot be read to mean that shared household can only be that household which is household of the joint family of which husband is a member or in which husband of the aggrieved person has a share.” 19.4. Thereafter Supreme Court in Smt. S. Vanitha of the 2005 Act on the one hand and parents and senior citizens under the 2007 Act on the other hand are both vulnerable members of the society their rights would have to be harmonized having regard to the intent of the 2005 Act and the 2007 Act. It was held as under : “22. This Court is cognizant that the Senior Citizens Act 2007 was promulgated with a view to provide a speedy and inexpensive remedy to senior citizens. Accordingly Tribunals were constituted under Section 7. These Tribunals have the power to conduct summary procedures for inquiry with all powers of the Civil Courts under Section 8. The jurisdiction of the Civil Courts has been explicitly barred under Section 27 of the Senior Citizens Act 2007. However the over riding effect for remedies sought by the applicants under the Senior Citizens Act 2007 under Section 3 cannot be interpreted to preclude all other competing remedies and protections that are sought to be conferred by the PWDV Act 2005. The PWDV Act 2005 is also in the nature of a special legislation that is enacted with the purpose of correcting gender discrimination that pans out in the form of social and economic inequities in a largely patriarchal society. In deference to the dominant purpose of both the legislations it would be appropriate for a Tribunal under the Senior Citizens Act 2007 to grant such remedies of maintenance as envisaged under S.2(b) of the Senior Citizens Act 2007 that do not result in obviating competing remedies under other special statutes such as the PWDV Act 2005 Section 26 of the PWDV Act empowers certain reliefs including relief for a residence order to be obtained from any civil court in any legal proceedings. Therefore in the event that a composite dispute is alleged such as in the present case where the suit premises are a site of contestation between two groups protected by the law it would be appropriate for the Tribunal constituted under the Senior Citizens Act 2007 to appropriately mould reliefs after noticing the competing claims of the parties claiming under the PWDV Act 2005 and Senior Citizens Act 2007. Section 3 of the Senior Citizens Act 2007 cannot be deployed to over ride and nullify other protections in law particularly that of a woman’s right to a ‘shared household’ under Section 17 of the PWDV Act 2005. In the event that the “aggrieved woman” obtains a relief from a Tribunal constituted under the Senior Citizens Act 2007 she shall duty bound to inform the Magistrate under the PWDV Act 2005 as per Sub sectionof Section 26 of the PWDV Act 2005. This course of action would ensure that the common intent of the Senior Citizens Act 2007 and the PWDV Act 2005 of ensuring speedy relief to its protected groups who are both vulnerable members of the society is effectively realized. Rights in law can translate to rights in life only if there is an equitable ease in obtaining 19.6. Following the above Supreme Court in Smt. S. Vanitha it is true that a single bench of this Court has taken the view that Tribunal was fully justified in passing an order of eviction against the petitioner and his other family members by rejecting the submission of the petitioner that an order of eviction cannot be passed by the Tribunal under section 4 of the 2007 Act read with other provisions of the said 2007 Act. While arriving at such a conclusion learned Single Judge relied upon the decisions of the Delhi High Court in Sunny Paul Vs. State delivered on 15.03.2017 in Writ PetitionNo.104615 and again in the case of Nasir Vs State 2015DRJ 259 20.1. Petitioner in Dattatrey Shivaji Mane was the son of respondent No.1 mother. The tenement in question belonged to respondent No.1 exclusively. In paragraph 13 of the said judgment there is a clear finding of fact by learned Single Judge that respondent No.1 has exclusive rights in the tenement which was allowed to be occupied by the petitioner and his family members by respondent No.1. In fact in paragraph 14 it is clarified that petitioner could not point out any legal right to occupy the tenement owned by respondent No.1. The only submission made was that since petitioner was maintaining respondent No.1 for last several years no order of eviction should be passed by the Tribunal against the petitioner. On the other hand it was found that respondent No.1 had produced sufficient material showing that she was harassed by the petitioner and his family members for the last several years. Petitioner also did not dispute that complaints were filed by respondent No.1 alleging harassment by the petitioner. Proceeding on the basis that petitioner could not show any right of any nature whatsoever in the tenement of respondent No.1 under any provisions of law learned Single Judge held that it is exclusively for respondent No.1 as a senior citizen to decide whether she wants to permit the petitioner and his family members to stay with her or not. Since she had decided not to allow the petitioner and his family members to stay with her in the house owned by her therefore learned Single Judge held that Tribunal was fully justified in passing an order of eviction not only against the petitioner but also against his other family members Reverting back to the facts of the present case we find that Tribunal had arrived at the finding that the flat in question is an ancestral property with both husband of petitioner and respondent No.1 having joint rights over the same. From the documents on record Tribunal came to the conclusion that the flat was in the name of respondent No.1 and husband of the petitioner deceased husband of respondent No.1 had sixty percent share whereas respondent No.1 and husband of the petitioner have twenty percent share each in the flat 22. Question for consideration is whether the Tribunal under the 2007 Act can order eviction of a person from a tenement in which he has ownership right to the extent of twenty percent This is in addition to the question which arises as to whether having regard to the mandate of section 4 of the 2007 Act read with other provisions of the said 2007Act Tribunal can direct or order eviction of children or relative at the first instance itself or at a later stage to enforce an order of maintenance passed at the first instance Further the question of petitioner’s right to reside in her shared household under the 2005 Act may also require consideration by the Tribunal 23. At this stage we may mention that in Smt. S. Vanitha Supreme Court has taken the view that the Tribunal under the 2007 Act may have the authority to order an eviction if it is necessary and expedient to ensure maintenance and protection of the senior citizen or parent. Eviction in other words would be an incident of the enforcement of the right to maintenance and protection. However this remedy can be granted only after adverting to the competing claims in Though learned Single Judge in Dattatrey Shivaji Maneof section 5 of the 2007 Act the Tribunal is mandated upon receipt of an application for maintenance to provide an opportunity of hearing to both the parties and to hold an enquiry for determining amount of maintenance. Though the procedure contemplated under the 2007 Act is summary in nature nonetheless Tribunal is required to find out as to whether the flat in question belongs exclusively to respondent No.1 or it is an ancestral property where petitioner has also a right to ownership and or residence through her husband. Tribunal is also required to deal with the contention of the petitioner that the flat in question is her shared household wherefrom she cannot be evicted. As the Supreme Court has pointed out in Smt. S. Vanithaboth parents senior citizens and the daughter in law are vulnerable groups in the Indian context and for protection of their rights the 2005 Act and the 2007 Act have been enacted. It is in the backdrop of the above that the claims of the contesting parties would have to be decided which unfortunately does not appear to be the case in the instant proceeding 27. Accordingly and for the reasons set out above we set aside and quash the order dated 15.12.2020 passed by the Tribunal and remand the matter back to the Tribunal for a fresh decision in accordance with law after hearing the parties and having regard to the discussions made above. Let such decision on remand be taken within a period of two months from the date of receipt of a copy of this judgment 28. Writ petition is accordingly allowed to the above extent. No costs MADHAV J. JAMDAR J (UJJAL BHUYAN J Priya Minal

Summary: Trial decides the fate of the accused as either guilty or innocent, however an accused shouldn’t be incarcerated unjustly for a long period of time awaiting trial before being convicted.  This was held in the judgment passed by a two bench judge comprising JUSTICES S.S. SHINDE &amp; N.J. JAMADAR in the matter Iqbal Ahmed Kabir Ahmed V. The State of Maharashtra (CRIMINAL APPEAL NO.355 OF 2021) dealt with an issue where the petitioner filed appeal under section 21 of the National Investigation Agency Act, 2008 (NIA Act) is directed against an order dated 27th May, 2019 passed by the learned Special Judge on an application whereby the said application for bail came to be rejected. The appellant has been registered by NIA for the offences punishable under section 120B and 471 of Indian Penal Code and sections 13, 16, 18, 18B, 20, 38 and 39 of Unlawful Activities (Prevention) Act, 1967 (UAPA) and section 4, 5 and 6 of the Explosives Substances Act, 1908 (the Explosives Act). In the backdrop of the aforesaid nature of the accusations, the learned Special Judge was persuaded to reject the prayer for release on bail. The counsel for the appellant urged that the learned special Judge committed a manifest error in negating the prayer for bail. According to Mr. Mihir Desai, the learned special Judge fell in error in not properly appreciating the role attributed to accused No. 3. After hearing both the parties, the Hon’ble Bombay High court allowed the petition as they believed that By any standard, it is very unlikely that the trial would be concluded in a reasonable period and that the further incarceration of the appellant, in the face of extremely unlikely situation of the trial being completed in near future, would be in negation of the protection of life and personal liberty under Article 21. The denial of bail, in such circumstances would render the procedure not only unreasonable but unconscionable as well. It also held that in the right to speedy trial, in the prosecutions where the special enactments restrict the powers of the Court to grant bail, faces a competing claim of the interest of society and security of State. In such prosecutions, if the trials are not concluded expeditiously, the procedure which deprives the personal liberty for an inordinate period is then put to the test of fairness and reasonableness, envisaged by Article 21 of the Constitution. Where the period of incarceration awaiting adjudication of guilt become unduly long, the right to life and the protection of fair and reasonable procedure, envisaged by Article 21, are jeopardized.