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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.14097 OF 2017
1. Maharashtra Mineral Corporation Ltd ]
5th floor, T.C. No.1950, Industrial Assurance ]
Building, Opp. Churchgate Railway Station ]
Mumbai 400 020 ]
]
2. M/s Aksharmaya ]
5th floor, T.C. No.1950, Industrial Assurance ]
Building, Opp. Churchgate Railway Station ]
Mumbai 400 020 ]
]
3. Nimid National Institute of Motivational ]
and Institutional Development, ]
5th floor, Industrial Assurance ]Petitioners
Building, Opp. Churchgate Railway Station ]
Mumbai 400 020 ]
]
4. Trimurthy Ores and Metals Pvt. Ltd ]
5th floor, Industrial Assurance ]
Building, Opp. Churchgate Railway Station ]
Mumbai 400 020 ]
]
5. Standard Silica Pvt.Ltd., ]
5th floor, Industrial Assurance Building ]
Opp. Churchgate Railway Station ]
Mumbai 400 020 ]
V/s.
1. Life Insurance Corporation of India ]
A Corporation established under the ]
Central Act XXXI of 1956 and having its ]
Western Zonal Office at 3rd Floor ]
East Wing, Jeevan Bima Marg ]
Mumbai 400 021 ]
]
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2. Estate Officer ]
Life Insurance Corporation of India ]
A Corporation established under the ]
Central Act XXXI of 1956 and having its ]
Western Zonal Office at 3rd Floor ]
East Wing, Jeevan Bima Marg ]
Mumbai 400 021 ] Respondents
]
3.M/s Deepak Fertilizer Petrochemical ]
Corporation Ltd., 5th Floor, Industrial ]
Insurance Building, Opp. Churchgate ]
Railway Station, Mumbai 400 020 ]
]
4. Arun Khopkar, ]
5th floor, Industrial Insurance Building ]
Opp. Churchgate railway station ]
Mumbai 400 020 ]
Mr. V. A. Gangal I/by Anup Deshmukh, for
the Petitioners
Mr. D. B. Pereira and Ms. Rinika Jain, for
Respondent No.1.
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 21 st DECEMBER, 2017. Oral Judgment 1] Heard learned counsel for the petitioners and learned counsel for respondent No.1. 2] Rule. 3] Rule is made returnable forthwith with the consent of learned counsel for both the parties,. 4] By this petition, filed under Article 227 of the Constitution 2/11 ::: Uploaded on - 05/01/2018 ::: Downloaded on - 05/01/2018 22:59:05 ::: 909 wp 14097 of 2017.odt
of India, the petitioners are challenging the order dated 20.06.2017, passed by the City Civil Court, Mumbai, thereby partly allowing the Misc. Civil Appeal No.20 of2016. The said appeal was preferred by the petitioners, challenging the order dated 18th September, 2015, passed by the Estate Officer, under Section 7 of the Public Premises (Eviction of Unauthorized Occupant) Act 1971, directing the petitioners to pay an amount of Rs.7,18,02,330/- towards assessment of mesne profit, damages and interest.
5] Undisputed facts are to the effect that the Estate Officer has passed an order of eviction and for payment of damages against the petitioners, which was challenged by the petitioners by preferring Misc. Appeal Nos. 74 of 2005 and 75 of 2005. By the judgment and order dated 17.3.2015, the Misc. Appeal No.74 of 2005 preferred against order of eviction came to be dismissed; whereas Misc. Appeal No.75 of 2005 against order of damages was allowed and the matter was remanded to the Estate Officer for deciding the quantum of damages afresh, in view of the observations made in the said order. 6] In consequence to this order, fresh order came to be passed by the Estate Officer, assessing the damages at the rate of Rs.78/- per sq. feet per month and directing the petitioners to pay an 3/11 ::: Uploaded on - 05/01/2018 ::: Downloaded on - 05/01/2018 22:59:05 ::: 909 wp 14097 of 2017.odt amount of Rs.7,18,02,330/- towards assessment of mesne profits, damages and interest. This order was challenged by the petitioners before the City Civil Court in Misc. Appeal No.20 of 2016. This Appeal came to be allowed partly reducing the rate of damages from Rs.78/- to Rs.65/- per sq. feet per month only. Being aggrieved thereby petitioners have approached this Court for further reduction of the rate.
7] At this stage it may be stated that, so far as the order of eviction is concerned, it was confirmed in Misc. Appeal No.74 of 2005, by City Civil Court, Mumbai, thereafter by this Court and lastly by the Apex Court also and the petitioners are given time upto 31 st December, 2017 to vacate the premises, subject to condition of petitioners filing usual undertaking that the petitioners shall not create any third party rights, will clear all usual dues/rent/arrears in the meanwhile and will peacefully vacate and hand over the possession of the premises on or before 31st December 2017. 8] Reverting to the present writ petition relating to the rate of damages, admittedly the inquiry premises are situate on 5 th floor of the Industrial Assurance Building, which is just opposite to Churchgate Railway station, Mumbai. Premises are admeasuring 4/11 ::: Uploaded on - 05/01/2018 ::: Downloaded on - 05/01/2018 22:59:05 ::: 909 wp 14097 of 2017.odt approximately about 2414 Sq. feet carpet area. In view thereof and having regard to the material produced before him, the Estate Officer, calculated the damages at the rate of Rs.78/- per sq. feet per month from 1st February, 1998 to 30 th December, 2015, totaling approximately to Rs.1,88, 292/- per month, alongwith simple interest at the rate of 9% per annum.
9] The petitioners herein have challenged the said valuation before the Appellate Court, contending that as per the Valuer's Mesne Profit Report dated 22nd June, 2011, relied upon by them before the Estate Officer, the same ought to be Rs.65,350 per month at the rate of Rs.27.07 per square per month.
10] Learned Appellate Court has considered the submissions advanced at Bar and the documents which were produced and thereafter held that the impugned order to the extent of damages, needs to be modified from Rs.78 per sq feet per month to Rs. 65./- per sq. per month.
11] While challenging this order of the Appellate Court, submission of learned counsel for petitioners is that the Valuer of the petitioners, was on the panel of High Court and he has, after taking 5/11 ::: Uploaded on - 05/01/2018 ::: Downloaded on - 05/01/2018 22:59:05 ::: 909 wp 14097 of 2017.odt into consideration the relevant material, properly assessed monthly damages to the extent of Rs.27.07 per sq. feet per month and there was absolutely no reason to discard the said valuation. It is also submitted that the premises have become quite old, the left over life of the premises is only three years. Moreover, the premises are situate on the fifth floor and the lift is available only upto 4 th floor. There are since seepages and damages to the premises, they being pretty old and hence the damages quantified by the Appellate Court at the rate of Rs.65/- per sq. feet per month, is totally unjustified, being on higher side and needs to be reduced to the rate of Rs.27.07 per sq. per feet, which was fixed by the Valuer of the petitioners. 12] Per contra, learned counsel for respondents have supported the order of the Appellate Court by emphasizing that the premises are used for commercial purpose and they are situate in the prime locality, just across the Churchgate Railway Station, in a city like Mumbai. According to him, therefore, when the Appellate Court has, after considering the base rent of the nearby premises, arrived at reasonable rent of Rs.65/- per sq. feet per month, no interference is warranted in the impugned judgment and order of the Appellate Court, especially when this writ petition is the last ditch attempt made by the Petitioners to retain the premises, being bound by the 6/11 ::: Uploaded on - 05/01/2018 ::: Downloaded on - 05/01/2018 22:59:05 ::: 909 wp 14097 of 2017.odt order of the Apex Court, according to which they have to clear the arrears of damages before 31st December, 2017. It is submitted that the application made by petitioners before the Hon'ble Supreme Court for extension of time is also rejected.
13] As regards the Report of the Valuer, it is submitted by learned counsel for respondents that the Valuer appointed by the petitioners has not even properly considered the material on record, especially the base rent of the nearby premises. 14] In the light of these submissions advanced at bar, by learned counsel for both the parties and on perusal of the impugned order passed by the Appellate Court, it can be seen that the Appellate Court has considered the entire material on record in its proper perspective. As observed by the Appellate Court, the Valuer appointed by the petitioners, has taken into consideration the premises in the building at Churchgate, New Marine Lines and Fort, but the location of those premises from that of the present one is substantially at variation. In the first instance, the Valuer has taken into consideration the premises at Janmabhoomi Marg. The base rent therein is at the rate of Rs.40/- per sq. feet per month. In addition thereto, there is interest free deposit of over Rs.24 lacs. The second 7/11 ::: Uploaded on - 05/01/2018 ::: Downloaded on - 05/01/2018 22:59:05 ::: 909 wp 14097 of 2017.odt instance considered by the Valuer pertains to the premises at Bombay Samachar Marg. The calculation and locations of these premises are substantially akin to the first instance and consequently the variance with the inquiry premises is also the same. The third instance of premises is at Straford House, Prescot Road, Fort. The base rent of this premises is Rs.61.68 per sq. feet per month and there is also interest free deposit of Rs.3,40,000/-. However, as can be seen from the map produced on record, the location of the inquiry premises is not at the same place and it stands on much better footing. 15] Similarly in respect of premises in the fourth instance, which is situate in Kasturi Building at the Jamshedji Tata Road, though the said premises are close to the inquiry premises, even then the location of the inquiry premises is apparently far more prime and convenient. The base rent of this premises is Rs.42/- per sq. feet per month.
16] The fifth instance considered by the Valuer is of the premises at Homji Street and the base rent in respect of said premises is Rs.51.37 per sq. feet per month.
17] The sixth instance is in respect of the premises at New 8/11 ::: Uploaded on - 05/01/2018 ::: Downloaded on - 05/01/2018 22:59:05 ::: 909 wp 14097 of 2017.odt Marine Lines wherein the base rent is Rs.48.75 per sq. feet per month. The Seventh instance considered by the Valuer is of the premises situate at Ambalal Doshi Marg, near Stock Exchange Building and the base rent of the said premises is Rs.70/- per sq. feet per month. The Eighth instance is in respect of the premises at Sir P.M. Road and the base rent of the same is Rs.65/- per month. 18] Thus, it can be seen that the base rent of the premises which are closer to the inquiry premises is almost over and above Rs.50/- per sq. feet per month. Hence it is apparent that the rate of the inquiry premises as fixed by the petitioner's Valuer at Rs.27.07 per sq. per month is not at all in consonance with the rate of aforesaid instances. It is far too meager and hence the Estate Officer and Appellate Court have rightly discarded the same. The Appellate Court has properly considered all these aspects. The Appellate Court has also rightly considered the Valuer's Report of the respondents who has fixed, the rate at Rs.78/- per sq. feet per month, but for the reasons stated in the order the Appellate Court has instead of accepting it in toto, modified it to Rs.65/- per sq. feet per month, which appears to be just and reasonable.
19] As regards the contention advanced by learned counsel 9/11 ::: Uploaded on - 05/01/2018 ::: Downloaded on - 05/01/2018 22:59:05 ::: 909 wp 14097 of 2017.odt for the petitioners that the Appellate court has not considered the fact that the left over life of inquiry premises is only three years and premises are situated on the fifth floor, which is not having the facility of the lift, one has to consider the other factors also, as advanced by learned counsel for respondents, that the inquiry premises are used for commercial purpose and they are situate at a very prime and coveted location. Hence it has to be held that Appellate Court rightly tried to strike a just balance by modifying the rate from Rs.78/- toRs.65/- per sq. feet per month, which is neither exorbitant, nor insufficient.
20] While exercising, therefore, extra ordinary jurisdiction of the Writ Court, it is expected that this Court should restrain itself from interfering with the impugned order passed by the Appellate Court, it being based on the material and justified with reasons. The said order, therefore, needs to be confirmed.
21] This Writ Petition, hence, being without merits stands dismissed.
22] Rule stands discharged. 10/11 ::: Uploaded on - 05/01/2018 ::: Downloaded on - 05/01/2018 22:59:05 ::: 909 wp 14097 of 2017.odt 23] At this stage, learned counsel for the Petitioners requests for stay to the implementation of this order, for a period of four
weeks. This request is, however, strongly resisted by learned counsel for the respondents.
24] Considering the order passed by the Apex Court on 17 th April, 2017, granting time to the petitioners to vacate the premises by 31st December, 2017, subject to his filing the undertaking that he shall clear all the dues and arrears in the meanwhile, this Court cannot grant any such order of stay, especially in the light of the fact that Application for extension of time filed by the petitioners is also rejected by the Hon'ble Supreme Court on 15.12.2017. Hence the request for stay stands rejected.
[DR. SHALINI PHANSALKAR-JOSHI, J.] 11/11 ::: Uploaded on - 05/01/2018 ::: Downloaded on - 05/01/2018 22:59:05 :::