Bombay High Court
Dayachand S/O Musaddilal Gupta vs Sudhir S/O Anandrao Mudholkar on 5 August, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No.2288 of 2015
AND
Writ Petition No.4482 of 2015
A. Writ Petition no. 2288 of 2015 :
Dayachand son of Musaddilal Gupta,
aged about 60 years,
occupation - Business,
resident of Mudholkar Wada, Opp :
Veterinary Hospital, Z.P. Road,
Akola,
Tq. & Distt. Akola. ..... Petitioner
Versus
Sudhir son of Anandrao Mudholkar,
aged about 49 years,
occupation Service,
resident of Mudholkar Wada,
Opp : Veterinary Hospital,
Z.P. Road, Akola,
Tq. & Distt. Akola. ..... Respondent.
*****
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Mr. S.A. Mohta, Adv., for the petitioner.
Mr. M.S. Sambare, Adv., for the respondent.
*****
B. Writ Petition no. 4482 of 2015 :
Sudhir son of Anandrao Mudholkar,
aged about 54 years,
occupation Service,
resident of Mudholkar Wada,
Opp : Veterinary Hospital,
Z.P. Road, Akola,
Tq. & Distt. Akola. ..... Petitioner
Org. plff/Respdt.
Versus
Dayachand son of Musaddilal Gupta,
aged about 71 years,
occupation - Business,
C/o Ravi Scooters,
Motorcycle House,
Mudholkar Wada, Opp :
Veterinary Hospital, Z.P. Road,
Akola,
Tq. & Distt. Akola. ..... Respondent.
Org. Deft./Appellant
*****
Mr. M.S. Sambare, Adv., for the petitioner.
Mr. S.A. Mohta, Adv., for the respondent.
*****
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CORAM : A.S. CHANDURKAR, J.
Date : 05th August, 2016
ORAL JUDGMENT:
01. Rule. Rule is made returnable forthwith. Learned Adv. Mr.
M.S. Sambare, waives service for respondent in Writ Petition No. 2288
of 2015, and learned Adv. Mr. Mohta, for respondent in Writ Petition
No. 4482 of 2015. Heard learned counsel for the rival parties in both
the Writ Petitions. By consent of rival parties, these Writ Petitions are
taken up for final hearing.
02. Since both these writ petitions raise a challenge to the order
passed by the Appellate Court below Exh.5, dated 6 th December, 2014,
they are being decided together by this common judgment.
03. The petitioner in Writ Petition No. 2288 of 2015 is the tenant
of the premises owned by the respondent. The respondent had filed a
suit for eviction of the said petitioner. In the plaint, the property has
been described as "open vacant land admeasuring 25-foot x 20-foot.
In the Written Statement filed by the petitioner, it has been pleaded
that a godown has been constructed by him which construction is of a
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permanent character. The Trial Court, by its judgment dated 19 th
December, 2013, decreed the suit for possession. Being aggrieved,
the petitioner has challenged the said decree by filing an appeal. In
the said appeal, the petitioner moved an application below Exh.5 for
staying the decree for possession. The Appellate Court, by Order
dated 6th December, 2014, directed the petitioner to pay occupation
charges at the rate of Rs. 7,500/- per month from the date of moving
the said application. The petitioner, being aggrieved by the quantum
determined as being on the higher side, has filed Writ Petition No.
2288 of 2015. The original plaintiff also, being aggrieved by the
quantum being on the lower side, has filed Writ Petition No. 4482 of
2015.
04. Shri Mohta, the learned counsel for the original defendant,
submitted that as per the Lease Agreement between the parties, the
rent initially to be paid was Rs. 325/- per month. This was increased to
Rs.400/- per month after a period of four years. In the year 2002, the
rent being paid was Rs.750/- per month. According to him, the suit
property was located in the interior area of the locality. In another suit
filed against another tenant by the land owner, the Appellate Court had
directed payment of occupation charges at the rate of Rs. 5/- per
square foot. He submitted that these premises were adjacent premises
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to those occupied by the defendant. According to him, as per the
ready reckoner, as the land in question was open land, the rate was
Rs.18,000/- per square meter. He, therefore, submitted that at the
most the occupation charges at the rate of Rs. 2500/- per month ought
to have been adjudicated.
05.
Shri Sambare, the learned counsel for the original plaintiff,
on the other hand, submitted that the defendant had made permanent
construction of the godown as per his own averments in the application
for stay. The ready reckoner, that was placed on record, would be
taken into consideration by treating the property as a constructed
property. He submitted that the rate in that regard was Rs.43,500/-
per square meter. He then submitted that in the order passed by the
Appellate Court in Regular Civil Appeal No. 78 of 2013, the ready
reckoner was not referred to. He, therefore, submitted that occupation
charges of Rs. 10,000/- per month ought to have been directed to be
made. He placed reliance upon the Judgment of learned Single Judge
of this Court in the case of Super Max International Pvt. Ltd. &
ors. Vs. State of Maharashtra & another [2009 (2) Bom.C.R. 789].
06. I have heard the respective counsel for the parties at length
and I have given due consideration to their respective submissions.
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The Lease Agreement between the parties is dated 28 th March, 1985.
The area in occupation admeasures about 500 sq. ft.. According to the
original plaintiff, the suit property is an open land. The defendant has
specifically pleaded that he has made a permanent construction of the
godown in the said area. The Trial Court has recorded a finding in para
23 of its judgment that there was a permanent construction standing
on the suit property. Though this judgment of the Trial Court is under
challenge before the Appellate Court, a prima facie consideration of
the findings can be taken into account. In the application for grant of
stay, the defendant has averred that he had made a permanent
construction of a godown. Thus, it is the case of the defendant that
there is a godown standing on 500 sq. ft., area of land. In the year
2002, monthly rent of Rs. 750/- was being paid. In other proceedings
filed by the plaintiff against a neighbouring tenant, the Appellate Court
was pleased to fix the occupation charges at the rate of Rs. 5/- per sq.
ft. The property in occupation of the said tenant was a grocery shop
admeasuring 1,000 sq.ft.
07. Considering the fact that in the year 2002, rent of Rs. 750/-
per month was being paid by the defendant for 500 sq. ft., area,
coupled with the fact that presently there is a godown standing
thereon, and after taking into consideration the order passed by the
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Appellate Court in Regular Civil Appeal no. 78 of 2013, the amount of
occupation charges per month would have to be determined. The
ready reckoner that is relied upon by both the parties indicates the
rates per square meter for open land as well as for constructed
structures. Considering the prima facie findings recorded by the Trial
Court that a structure is standing on the said land that was initially let
out as open land for which rent of Rs. 750/- per month was being paid
in the year 2002, a reasonable amount of occupation charges would
have to be determined. Considering the observations of learned
Single Judge in Super Max International Pvt. Ltd. [supra] and as the
defendant is using the premises as a godown, in my view, the
defendant can be directed to pay occupation charges at the rate of Rs.
6,000/- per month. The order passed by the appellate court would,
therefore, stand modified to that extent.
08. In view of aforesaid discussion, the following order is
passed:-
ORDER
[a] The order dated 6th December, 2014 passed below
Exh.5 is partly modified, and the appellant before
the appellate court shall pay occupation charges
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at the rate of Rs. 6,000/- [rupees six thousand
only] per month from the date of the application.
The arrears, if any, shall be cleared by the
petitioner in Writ Petition No. 2288 of 2015 within
a period of two months from today. The
proceedings in Regular Civil Appeal No. 37 of 2014
are expedited, and the appellate court shall decide
the appeal by the end of October, 2016.
[b] It is made clear that the adjudication of the
amount of occupation charges is only for
determining the same to be paid during pendency
of the appeal. This adjudication shall not come in
the way of either of the parties in any further
proceedings.
[c] Writ Petition no. 2288 of 2015 is partly allowed
in aforesaid terms.
[d] Writ Petition No. 4482 of 2015 stands dismissed.
Judge
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