Whether legal heirs of a government servant can avoid their eviction from official residence saying that said accommodation is not dilapidated?

Moreover, petitioners claim their

occupation over the tenements from the Government,

pursuant to they or their predecessors to be in

Government service. The tenement was a facility

provided to them in service for accommodation. The

petitioners or their predecessors are claiming

their occupation over the tenements from the

Government. They do not have any right to deny the

title of the Government from whom they were

inducted in possession nor any other entity or a

persons is claiming a better title than the

Government. It is futile to enter into the debate

in this regard. The person who is inducted in

possession cannot deny the title of a person who

has inducted him in occupation, unless the person

inducted in occupation claims a better title. It

is also to be noted that, as far as the issue of

ownership of the Government is concerned the same

has been set to rest in the earlier judgments.

There is no reason to again enter into the

rigmarole of the ownership right. Nonetheless,

petitioners are not claiming ownership rights nor

they can claim ownership over the tenement in their

occupation. In light of the above, it is not open

for the petitioners to deny the ownership right of

the Government.

24. The petitioners have also emphasised much

upon the legality of public notice under Section

264 and 265-A of the Act, 1949. The Division Bench

of this Court in case of Municipal Corporation of

Greater Mumbai Vs. State of Maharashtra (supra) and

another judgment in case of Mr. Jaswant Shivlal

Chandarana and Anr. Vs. State of Maharashtra

(supra) has laid down the guidelines of the manner

in which the structural audit has to be based. In

the present case, petitioners do not have any right

to retain the occupation of the tenements. The

person who does not get a right to occupy and

remain in possession of a tenement does not have

locus to assail the impugned notices on the ground

that the procedure and the test required as per the

guidelines of the Division Bench of this Court in

case of Municipal Corporation of Greater Mumbai Vs.

State of Maharashtra (supra) are not performed. The

Government and Corporation have also placed on

record reports issued by the Department of the

Applied Mechanics, Government Engineering College,

Aurangabad. We may not enter into the said

aspects, as in our opinion petitioners would not

have any legal right to agitate against the same.

The petitioners do not have legal right to continue

occupying tenements having suffered earlier

adjudication.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.12527 OF 2021

 Dinker s/o Bhaburao Lokhande Vs The State of Maharashtra

CORAM : S. V. GANGAPURWALA &

R. N. LADDHA, JJ.

Dated : 20.01.2022.

 (Per S. V. Gangapurwala, J.) :-

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Whether court can entertain the application of the senior citizen to evict his children from his self acquired property?

 Mr. Thorat then says that under Section 5 it is only an application for maintenance that can be entertained by the Tribunal. Mr. Shetty's application was for eviction. It says so. Therefore, according to Mr. Thorat, the Tribunal acted without jurisdiction, apart from the fact that it proceeded on a significant procedural illegality. {Para 8}

9. As to the jurisdictional question we do not believe the point is well taken. The definition of maintenance in Clause 2(b) reads thus:

“2(b) “maintenance” includes provision for food, clothing, residence and medical attendance and treatment.”

10. Clearly it includes residence; and this means residence of the senior citizen.

54. At this stage, we may mention that in Smt. S. Vanitha (supra), 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 the dispute.

(Emphasis added)

12. In Jasani, therefore, the claim of the appellant was that the house was a ‘shared household’, i.e. that she had a legally definable right in the property itself. That is not the case before us at all, where Shweta accepts that she has no right in the flat in question. The mere use of the word ‘eviction’ is not by itself determinative. To constitute eviction, or to invoke any prohibition against eviction, it must be shown that some legally enforceable civil right of the appellant in the property itself has been determined and that the appellant has been denied that right. Removal of a person with no right in the premises is not eviction so as to attract any such prohibition. After all, as Jasani notes, the statutory intent is to protect senior citizens. It is not to foist on senior citizens an imaginary claim over their own property where the claimant has no such right to begin with. The statutory intent is not to limit the rights of senior citizens, but exactly the reverse.

 In the High Court of Bombay

(Before G.S. Patel and Madhav J. Jamdar, JJ.)

Writ Petition (L) No. 9374 of 2020

Shweta Shetty Vs State of Maharashtra 

Decided on November 25, 2021

Citation: 2021 SCC OnLine Bom 4575

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