Bombay High Court
Maharashtra Mineral Corporation ... vs Life Insurance Corporation Of ... on 21 December, 2017
Bench: Dr. Shalini Phansalkar-Joshi
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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.]
