M/S. Bothra Metal And Wire ... vs Mr. Krishnakant Bootaram Bhalla ...
2017 Latest Caselaw 4099 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION

                    WRIT PETITION NO. 10813 OF 2016


M/s Bothra Metal and Wire Industries                            ..Petitioner
              Vs.
Mr. Krishnakant S/o Bootaram Bhalla
and Others                                                      ..Respondents


Mr. M. M. Vashi, Senior Counsel i/b Mr. Kunal Bhanage, for the
Petitioner.
Mr. Dakshesh Vyas i/b Mr. Nishant Subhash Vyas, Mr. Yagnesh
Mahesh Vyas, for Respondent Nos. 1 to 4.


                                    CORAM :- B. P. COLABAWALLA , J.

DATE :- JULY 6, 2017.

ORAL JUDGMENT(PER B. P. COLABAWALLA,J.)

Rule. Respondents waive service. By consent, rule

made returnable forthwith and heard finally.

2 Leave to amend to annex the entire copy of the order

dated 29th January, 2015 which is impugned in this Petition is

granted. Amendment to be carried out forthwith.

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3                  This Writ Petition filed under Article 227 of the

Constitution of India challenges the order dated 29 th January,

2015 passed below Exhibit-7 in Appeal No.65 of 2013 under which

the Appellate Bench of the Small Causes Court was pleased to stay

the decree passed against the Petitioner on the condition that the

Petitioner deposit a sum of Rs.8,94,520/- per month as

compensation from 30th September, 2013 till the disposal of the

Appeal.

4 Very few facts need to be noted. The Petitioner herein

is the Original Defendant No.7 in T. E. & R. Suit No.110/126 of

2006 (for short "the Eviction Suit"). This Suit was filed by

Respondent Nos.1 to 4 herein (Plaintiffs before the Small Causes

Court at Bombay) inter alia praying for a decree of possession in

respect of a plot of land bearing CTS No.275, Survey No.85, Hissa

No.9, Survey No.86, Hissa No.1 to 5, Kurla-2 Village Churchyard,

Premier Road, Kurla, Mumbai- 400 070 admeasuring

approximately 3578.08 sq.mts. (hereinafter referred to as the

"Suit Premises"). It is the case of the Petitioner that out of this

entire area of 3578.08 sq.mts, the Petitioner is in occupation of

only 1781.39 sq.mts.

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5                  Be that as it may, Respondent Nos. 1 to 4 herein, as the

owners and lessors of the Suit premises, filed the Eviction Suit

inter alia praying for an order and decree of possession against

the Petitioner and other Co-Defendants before the Small Causes

Court at Bombay. In this Suit, a decree of eviction came to be

passed on 30th September, 2013 against the Petitioner as well as

the other Co-Defendants. The Petitioner being aggrieved by this

judgment and order dated 30th September, 2013 preferred an

Appeal before the Appellate Bench of the Small Causes Court being

Appeal No.65 of 2013. In this Appeal, the Petitioner preferred an

application for stay (Exhibit-7) of the operation and execution of

the order dated 30th September, 2013 pending the hearing and

final disposal of the said Appeal. It is this application that was

heard by the Appellate Bench of the Small Causes Court and

thereafter the impugned order was passed wherein a stay was

granted of the Judgment and Decree dated 30th September, 2013

on the condition that the Petitioner deposit jointly and severally a

sum of Rs. 8,94,520/- as compensation, from 30 th September,

2013 till the decision of the Appeal. Being aggrieved by this order,

the Petitioner is before me assailing the order passed by the

Appellate Bench of the Small Causes Court dated 29 th January,

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2015 in my extra ordinary, equitable and discretionary

jurisdiction under Article 227 of the Constitution of India.

6 In this factual backdrop, Mr. Vashi, the learned Senior

Counsel appearing on behalf of the Petitioner, submitted that the

compensation fixed of Rs. 8,94,520/- was in relation to the entire

property (3578.08 sq.mts.) whereas admittedly the Petitioner was

in occupation of only 1781.39 sq.mts. This being the case, the

Appellate Authority could not have directed the Petitioner to

deposit the entire amount of Rs.8,94,520/- but at the highest could

have directed the Petitioner to deposit a proportionate amount

considering the area in their occupation.

7 Over and above this, Mr. Vashi submitted that the

compensation fixed for this entire property is anyway excessive,

fanciful and punitive and therefore my interference was called for

under Article 227 of the Constitution of India. Mr. Vashi

submitted that the Appellate Authority, whilst coming to the

compensation figure of Rs. 8,94,520/- has taken into consideration

wholly irrelevant material whilst ignoring the relevant material

produced by the Petitioner. For all these reasons, Mr. Vashi

submitted that this Writ Petition be allowed and the impugned

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order be quashed and set aside.

8 On the other hand, Mr. Vyas, the learned counsel

appearing on behalf of Respondent Nos.1 to 4 (Original Plaintiffs)

submitted that there was no merit in the contentions advanced by

Mr. Vashi. He submitted that the impugned order takes into

account all the material produced whilst coming to the conclusion

that the compensation that ought to be fixed is Rs.8,94,520/-

(which works out to approximately Rs.250/- per sq.mts.). He,

however, conceded that since the Petitioner is in occupation of an

area of approximately 1781.39 sq.mts., they be directed to pay

monthly compensation only in relation to the area in their

occupation and not for the entire property of 3578.08 sq.mts. As

far as the compensation being excessive is concerned, Mr Vyas

brought to my attention a decision of this Court in the case of

Pankaj R. Raval v/s Krishnakant s/o Bootaram Bhalla

and Others in Writ Petition No.4327 of 2015 decided on

28 th July, 2015. Mr. Vyas submitted that the Petitioner in Writ

Petition No.4327 of 2015 was Defendant No.10 in the Eviction

Suit filed by Respondent Nos.1 to 4 herein. After hearing the

Petitioner in Writ Petition No.4327 of 2015, this Court inter alia

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directed that the stay of the eviction decree against the Petitioner

therein who was occupying an area of approximately 1705.77

sq.mts. would be subject to the Petitioner depositing before the

Appeal Court compensation @ Rs. 200/- per sq.mts. per month

on/before the 5th day of each month, as reasonable compensation

for the use and occupation of the premises that were under

Defendant No.10's occupation, namely, 1705 sq.mts. This

compensation was to be paid from the date of the eviction decree

dated 30th September, 2013 till the decision in the Appeal. Mr.

Vyas submitted that a similar order can be passed in the present

Petition considering that the Petitioner herein was Defendant No.7

in the said Suit and the subject matter of the said Suit as well as

the present Petition is the same property, as was the subject

matter in Writ Petition No.4327 of 2015.

9 I have heard the learned counsel for the parties at

length and have perused the papers and proceedings in the Writ

Petition. I have also given my careful consideration to the

impugned order dated 29th January, 2015. On the first point

canvassed by Mr. Vashi that the Petitioner cannot be saddled to

pay compensation in relation to the entire property (3578.08

sq.mts.), I find the submission is well founded. Admittedly, out of

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the entire property, only 1781.39 sq.mts., is in occupation of the

Petitioner herein. He, therefore, cannot be saddled to pay

compensation for the entire property admeasuring 3578.08

sq.mts. The compensation that would therefore be payable by the

Petitioner would only be in relation to the extent of the property

that is in his possession, namely, 1781.39 sq.mts.

10 Having said that, I shall now deal with the contentions

of Mr. Vashi that the compensation awarded by the Appeal Court

@ Rs. 250/- per sq.mts., is highly excessive. In this respect, I do not

find any merit in the aforesaid contention. The Appeal Court has

given detailed reasons from paragraphs 22 onwards. The Appeal

Court has recorded that the Petitioner herein has also relied upon

a deed of conveyance dated 24th December, 2010 whereas

Respondent Nos.1 to 4 herein relied upon the report of Chartered

Architect Mr. Hitendra Gangawar which report opined that the

market rent for the entire property,namely 3578.08 sq.mts would

be Rs.17,81,884/- per month calculated at Rs. 498/- per sq.mts.

This report of Mr. Gangawar was the one that was taken into

consideration. In fact, I find that the material produced by the

Petitioner to submit that the rent payable in respect of the portion

of the property which is in occupation of the Petitioner would be

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only Rs. 25,474/- as wholly inadequate. The only material

produced, which according to me, is no material at all is as stated

by the Petitioner in paragraph 11 of the rejoinder affidavit filed

before the Appellate Court and which reads as under:-

"11.I say that as per the above instance cited by me the current market rate will be as follows:

a) Plot area 1632 sq.mt. (1350.90+281.10)

b) Agreement Value; Rs.70,00,000/-

c) Rate per sq.mtr.;Rs.4290.00

d) Rent at the rate 4% per annum;Rs.171.60

e) Rent per month/sq.mt:Rs.14.30

f) Total rent of suit premise (structures) will be Rs.25474.02"

11 On perusal of this paragraph, it is clear that the

Petitioner has produced no evidence of any expert to establish it 's

case that the fair market compensation for the area in the

Petitioner's occupation would be only Rs.25,474.02 per month.

Even applying common sense, this figure seems to be wholly

ridiculous. It is absurd to even suggest that 1781.39 sq.mts.

(which approximately translates to 17800 sq.ft.) in an area like

Kurla in the city of Mumbai and which are commercial premises,

would fetch only Rs. 25,474.02 per month. I, therefore, find that

the Appellate Court rightly did not give any credence to this value

at all.

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12                 Having said that, in Writ Petition No.4327 of 2015, for

this very same property, this Court reduced the compensation

payable from Rs. 250/- sq.mts as ordered by the Appellate Court

to Rs. 200/- sq.mts. Considering that the property in question in

Writ Petition No.4327 of 2015 is the very same property that is

the subject matter of this Petition, I find that it would be in the

interest of justice and fair to all parties, if the compensation is

fixed at Rs. 200/- per sq.mts. Hence, considering the totality of

the facts of the case, I pass the following order:-

(i) The impugned order insofar as it concerns the Petitioner and

Petitioner alone is modified.

(ii) The impugned judgment and decree dated 30th September,

2013 shall be stayed against the Petitioner to the extent of

the area occupied by it, namely, 1781.39 sq.mts, subject to

the Petitioner depositing before the Appeal Court

compensation @ Rs. 200/- per sq.mts. per month on/before

5th day of each month.

(iii) This compensation shall be paid from the date of the eviction

decree dated 30th September, 2013 till the decision in the

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Appeal.

(iv) The Petitioner is at liberty to deposit the arrears of

compensation qua portion of the suit property which is in

his occupation (1781.39 sq.mts.) either in lump sum or in

three equal monthly installments starting from today ( 6th

July, 2017). If the aforesaid compensation is paid as

directed above, the same shall be invested in a Nationalized

Bank in a recurring deposit for one year and thereafter for

similar period of one year each subject to any further orders

that the Appellate Bench of the Small Causes Court may pass

in that behalf.

(v) It is made clear that if the arrears of compensation are not

deposited latest by 6th October, 2017, the stay shall stand

automatically vacated and Respondent Nos.1 to 4 herein will

be entitled to execute the decree against the Petitioner in

relation to the portion of the Suit premises that are in use

and occupation of the Petitioner.

13 Rule is made absolute in the aforesaid terms.

However, in the facts and circumstances of the case, there shall be

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no order as to costs.

14 Needless to clarify that Respondent Nos.1 to 4

(Original Plaintiffs) are at liberty to execute the decree against all

other Defendants who have either not challenged the decree or

who having challenged it, have not complied with any of the

conditions of stay granted in their favour.

                                        ( B. P. COLABAWALLA, J.)




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