Mrs. Rani Sevakram vs The Oriental Insurance Co. Ltd. & ...
2017 Latest Caselaw 120 Bom

Tapadia RR/B.                         1 / 11                       WP/2443/1994

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              CIVIL APPELLATE JURISDICTION

                  WRIT PETITION NO. 2443 OF 1994

Mrs. Rani Sevakram, since deceased,                                 Petitioner
by heirs and legal representatives:

1.Mrs. Purna alias Urvashi Suresh Jahangiani ;
2.Ms. Jyotika Suresh Jahangiani;
3.Ms.Ruchika Suresh Jahangiani .. . .

                                       V/S

1. The Oriental Insurance Co. Ltd.
2. U.P.State Handlooms Corporation;
3. S.C.Shah, Estate Officer .. ...  ....                       Respondents


Mr. E.A.Sasi, Advocate for petitioner.
Mr. V.Y.Sangalikar, Advocate for Respondent No. 1.
Mr. A.R. Pandey, Advocate for Respondent no.2


                       CORAM :                       R.G.KETKAR,J.

                       RESERVED ON:                  24/01/2017
                       DATE       :                   28th February, 2017.


ORA JUDGMENT:

1. Heard Mr.E.A.Sasi, learned counsel for the petitioner,

Mr.V.Y.Sanglikar, learned counsel for respondent no.1 and

Mr.A.R.Pandey, learned counsel for respondent no.2 at length.

2. By this petition under Article 227 of the Constitution of

India, petitioner-Ms Rani Sevakram,(for short, 'Sevakram',) since

deceased through her legal representatives, had challenged the

Judgment and order dated 27.10.1993 passed by Estate Officer

in Case No. 8A of 1992 as also the Judgment and order dated

29.4.1994 passed by the learned Principal Judge, Bombay City

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Civil Court at Bombay (for short, 'Appellate Authority') in Misc.

Appeal No. 154 of 1993. By order dated 27.10.1993 respondent

no.3 directed Sevakram and respondent no.2, hereinafter

referred to as 'Corporation' to pay damages at the rate of Rs.

22,000/- per month with effect from 1.9.1983. Aggrieved by that

decision, Sevakram preferred Misc. Appeal No. 154 of 1993. By

order dated 29.4.1994, the Appellate Authority dismissed the

Appeal and modified the order of the Estate Officer by directing

Sevakram to pay a sum of Rs.15000/- per month from 1.9.1983.

3. In support of this petition, Mr.Sasi reiterated the

submissions that were advanced in support of Writ Petition

No.2442 of 1994. In substance, Mr.Sasi submitted that the

Authorities below committed error in holding that Sevakram is an

unauthorised occupant. He further submitted that respondent

no.1, hereinafter referred to as 'Insurer', has instituted suit

against Sevakram under the provisions of the Bombay Rents,

Hotel and Lodging House Rates Control Act, 1949, on the ground

of default, namely, R.A.E.Suit no. 1308/3955 of 1985 and the suit

is dismissed as withdrawn. He submitted that Insurer has waived

notice of termination. In any case, notice of termination dated

19.7.1983 was not served on Sevakram. He further submitted

that in the case of Suhas Pophale Vs. Oriental Insurance

Company Ltd, (2014) 4 SCC 657, the Apex Court has considered

the Guidelines in detail and held that even if the Guidelines are of

3 / 11 WP/2443/1994

advisory nature, Insurer is bound by those Guidelines. He

submitted that the impugned orders, therefore, deserve to be set

aside.

4. Mr.Sasi further submitted that Writ Petition No.2442 of

1994 instituted by Sevakaram was admitted by this Court on

18.8.1994 by issuing Rule. The operation of the impugned orders

was suspended subject to condition of Sevakram paying or

depositing a sum of Rs. 15,000/- per month to Insurer. It was

made clear that in case there is any default in payment of the

amount, stay is deemed to have been vacated without further

reference to the Court. Insurer was permitted to withdraw the

amounts deposited or to be deposited by Sevakram.

5. Present Writ Petition, i.e. Writ Petition No.2443 of 1994

preferred by Sevakram was admitted by issuing Rule on the

same day, i.e. 18.8.1994. As Sevakram was already directed to

either pay or deposit Rs. 15,000/- per month to the Insurer, this

Court did not issue any direction for payment of rent/mesne

profits in this petition.

6. Corporation instituted Writ Petition No.1422 of 1996

challenging the impugned orders. By order dated 6.3.1996,

Division Bench of this Court admitted petition by issuing Rule

and interim relief in terms of prayer clause (b) was granted on

the condition of Corporation depositing in this Court a sum of Rs.

25,000/- per month instead of depositing amount in the court of

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Small Causes. Sevakram was permitted to withdraw the amount

to be deposited by Corporation.

7. Insurer, thereafter, took out Civil Application No.2388 of

1996 for modification of order dated 6.3.1996 passed in Writ

Petition No.1422 of 1996. Legal Representatives of Sevakram

took out Civil Application No.3419 of 1997 for modification of

order dated 6.3.1996 with a prayer that they may be permitted

to withdraw the amount in the place of Sevakram, since

deceased. After hearing both sides, by order dated 23.4.1998,

this Court modified order dated 6.3.1996. Out of amount of

Rs.25000/- deposited in this Court by Corporation, legal

Representatives of Sevakram were permitted to withdraw sum of

Rs. 15000/- so as enable them to deposit the same in the City

Civil Court. The balance amount of Rs. 10,000/- per month was

ordered to be invested in a nationalised Bank in fixed deposit for

a period of one year and the same shall be renewed for one year

each time till disposal of the petition. Civil Applications were

accordingly disposed of.

8. Mr. Sanglikar submitted that Writ Petition No.1422 of 1996

was dismissed for non-prosecution on 19.11.2015. The

Corporation, therefore, filed Civil Application No.111 of 2016 for

restoration by recalling that order. While allowing that

application, this Court directed the Corporation to deposit Rs.

One lakh in this Court with effect from 1.12.2015. The

5 / 11 WP/2443/1994

Corporation was also directed to clear the arrears within a period

of four weeks from the date of the order. The compensation

amount was ordered to be deposited each month on or before

10th day of each succeeding month. Mr. Sanglikar submitted that

in paragraph 6 of that order, this Court referred to the decisions

in (i) Atmaram Properties (P) Ltd Vs. Federal Motors (P) Ltd,

(2005) 1 SCC 705 and (ii) State of Maharashtra Vs. Super Max

International Private Ltd, (2009) 9 SCC 772. It was also made

clear that this determination was not final and both parties were

granted opportunity to place adequate material on record which

will assist this Court in determining reasonable compensation.

Accordingly, time was also granted to the parties to place

material on record.

9. Mr.Sanglikar submitted that legal representatives of

Sevakram have filed Civil Application No.1109 of 2016 in Writ

Petition No.1422 of 1996 seeking permission to withdraw the

amount deposited, i.e. one lakh per month, and deposit the

amount at the rate of Rs.60,000/- per month in the City Civil

Court by retaining Rs.40,000/- per month with effect form

1.12.2015. Civil Application No. 884 of 2016 is preferred by

Insurer, inter-alia, praying for directing Corporation to deposit

compensation at the rate of Rs. 2,95,230/- or such other sum as

this Court deems fit and proper from 1.12.2015.

10. Civil Application No.1109 of 2016 is opposed by Insurer by

6 / 11 WP/2443/1994

filing affidavit of Vivek Shukla, Regional Manager. It is contended

that the entire suit premises on the ground floor and mezzanine

floor admeasures 1968.2 sq.ft. It has been in exclusive use and

occupation of the Corporation. It is also contended that Civil

Application is filed by one Gulab Hussain Talukdar, purporting to

be Constituted Attorney of legal representatives of Sevakram.

Mr. Gulab Talukdar is not related to legal representatives of

Sevakram. Perusal of Irrevocable Power of Attorney executed in

his favour shows that legal representatives of Sevakram have

transferred their rights to Talukdar. Special powers are conferred

on him who is allegedly Power of Attorney of legal

representatives of Sevakram. Legal representatives of Sevakram

are not interested in prosecuting this proceeding. In any case,

power of attorney is sham and bogus and, in fact, they have

transferred their rights in favour of said Talukdar. Mr.Sanglikar

submitted that Sevakram and Corporation are in unauthorized

use and occupation of the suit premises and consequently legal

representatives cannot be permitted to withdraw Rs.60,000/- for

depositing in the City Civil Court, thereby, retaining Rs. 40,000/-

every month.

11. Civil Application No.884 of 2016 is opposed by legal

representatives of Sevakram by filing affidavit of Gulab H.

Talukdar. It is contended that their predecessor-in-interest was in

use, occupation and possession of the suit premises much prior

7 / 11 WP/2443/1994

to 1950 onwards as tenant of Insurer and as such they are

entitled to have tenancy right transferred in their favour and/or

otherwise seek declaration from the Small Causes Court. They

are contemplating appropriate proceedings to be initiated in the

Small Causes Court. They have also decided to initiate

appropriate proceedings before Small Causes Court for fixing

standard rent payable by them to Insurer. Prayer is, therefore,

made to reject the application and also permitting them to

withdraw Rs. One lakh every month and to deposit Rs. 60,000/-

per month in the City Civil Court and retaining Rs. 40,000/- per

month with effect from 1.12.2015.

12. Mr. Sanglikar also relied upon Rule 8 of the Public Premises

(Eviction of Unauthorized Occupation) Rules, 1971 which deals

with assessment of damages for unauthorized use and

occupation of any public premises.

13. In so far as the contention advanced by Mr.Sanglikar

referred herein above is concerned, I have already dealt with

these submissions while disposing of Writ Petition No. 2442 of

1994. For the reasons recorded in that order, I do not find any

merit in the submission of Mr. Sasi.

14. In so far as the fixation of damages is concerned, as noted

earlier, this Court had passed order on 19.1.2016 in Civil

Application No.111 of 2016 after hearing all concerned parties.

That Civil Application was taken out for recalling                            order dated





                                       8 / 11                       WP/2443/1994

19.11.2015 by which Writ Petition No.1422 of 1996 preferred by

Corporation was dismissed for non-prosecution. After referring to

the earlier orders, this Court observed that interim order

restraining the Insurer from executing the eviction decree can

also be restored. However, this will have to be subject to further

condition, as Sevakram cannot insist upon continuing in

occupation of the suit premises, on the basis of deposit of the

compensation at the rate of Rs.25000/- per month only. It was

also noted that earlier compensation was determined in the year

1996. Suit premises admeasures about 1700 sq.ft and are used

for commercial purposes. They are located opposite to Regal

Cinema, Colaba which is a prime commercial area. This Court

recorded submissions advanced on behalf of the Insurer that as

per ready reckoner, reasonable compensation would be Rs. 5

lakhs per month. This Court directed Corporation to deposit Rs

one lakh per month with effect from 1.12.2015 as upto

November, 2015 Corporation had deposited compensation at the

rate of Rs.25000/- per month. This Court also clarified that said

determination is not final and both parties were granted

opportunity to produce sufficient material on record which will

assist the Court in determining reasonable compensation.

15. In this regard, it is necessary to refer to Rule 8 of the Public

Premises (Eviction of Unauthorised Occupants) Rules, 1971 (for

short, 'Rules') which reads thus:

9 / 11 WP/2443/1994

8. Assessment of damages.-In assessing damages of unauthorised use and occupation of any public premises the estate officer shall take into consideration the following matters, namely :-

(a) the purpose and the period for which the public premises were in unauthorised occupation;

(b) the nature, size and standard of the accommodation available in such premises;

(c) the rent that would have been realised if the premises had been let on rent for the period of unauthorised occupation to a private person;

(d) Any damage done to the premises during the period of unauthorised occupation;

(e) Any other matter relevant for the purpose of assessing the damages."

16. Perusal of this Clause shows that while assessing damages,

Estate Officer has to take into consideration various factors, such

as, purpose and period for which public premises were in

unauthrosied use and occupation; the nature, size and standard

of accommodation available to the suit premises; rent which

would have been realised if the premises were let out on rent for

the period of unauthorized occupation to a private person and

other relevant matters for the purpose of assessing the damages.

It is not in dispute that the authorities below have concurrently

found that Sevakram and Corporation are in unauthorised use

10 / 11 WP/2443/1994

and occupation of the suit premises from 1.9.1983. The said

building is situate at junction of Wodehouse and Madam Cama

Road, opposite Regal Cinema, Mumbai-400005. The suit premises

admeasures 1700 sq.ft. Though liberty was granted by this Court

to the parties to produce sufficient material for determining

reasonable compensation, no material is produced by Sevakram

and Corporation. Applying the principles laid down in Atmaram

Properties (P) Ltd (supra) and Super Max International Private

Ltd, (supra) as also having regard to the nature, size and

standard of accommodation, location and use for commercial

purposes and fair market rent which Insurer would have realized

if the said premises were let out to a private person, in my

opinion, damages assessed at Rs.One Lakh per month will be

reasonable. This Court has already directed Corporation to

deposit Rs. One Lakh per month after taking into consideration

various factors In view thereof, I do not find any ground is made

out for invocation of powers under Article 227 of the Constitution

of India, more so when the authorities below have concurrently

recorded a finding that Sevakram is in unauthorized use and.

occupation of the suit premises from 1.9.1983. Accordingly,

damages are quantified at the rate of Rs. One Lakh per month

from 1.12.2015 onwards. As far as Rs. 10,000/- per month

deposited in nationalized Bank as per order dated 23.4.1998 is

concerned, Insurer is permitted to withdraw that amount

11 / 11 WP/2443/1994

together with accrued interest.

17. In the light of this discussion, Petition fails and the same is

dismissed. Rule is discharged.

18. Parties including Office to act on the authenticated copy of this order.

(R.G.KETKAR, J.)