Bombay High Court
Maimoona Hatimbhai Nasir And Ors vs M/S. Hindustan Petroleum ... on 16 June, 2023
Bench: Abhay Ahuja
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO.323 OF 2023
IN
CIVIL REVISION APPLICATION NO.61 OF 2020
MAIMOONA HATIM NASIR AND ANOTHER )...APPLICANTS
IN THE MATTER BETWEEN
HINDUSTAN PETROLEUM CORPORATION & ORS.)...APPLICANTS
V/s.
MAIMOONA HATIM NASIR AND OTHERS )...RESPONDENTS
Ms.V.Dighe, Mr.Mustafa Kachwala and Ms.Ketki Pansare i/b. Kachwala
Misar & Co., Advocate for the Applicants.
Mr.Girish Godbole, Senior Advocate i/b. Mr.Aditya Shirke, Advocate for
the Revision Applicant / Respondent in IA No.323/2023.
CORAM : ABHAY AHUJA, J.
DATE : 16th JUNE 2023
P.C. :
1. This is an Interim Application seeking directions to Respondent
No.1 to pay compensation during the pendency of Civil Revision
Application.
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2. Ms.Dighe, learned Counsel for the Interim Applicants would
point out that Applicants in the Interim Application are senior citizens
who are lessees in respect of an open land admeasuring 70 x 65
bearing C.T.S. No.367 situate at Nesbit Road, Mazgaon, Mumbai.
Learned Counsel would submit that Applicants had obtained a decree
dated 17th November 2011 and 20th November 2011 passed in
Ejectment Application No.153/538/E/1974 for ejection of Revision
Applicants; however, the said decree was sought to be questioned
pursuant to Marji Application No.767 of 2013 which came to be
dismissed vide judgment and order dated 19 th June 2016 passed by the
Small Causes Court. The said order dated 19 th June 2016 was assailed
before the Appellate Court of the Small Causes Court and vide
judgment and order dated 27th October 2019 the Appeal of the Revision
Applicant came to be dismissed. Learned Counsel would submit that,
therefore, the Applicants have become entitled to the subject property.
3. The Respondent no.1 has assailed the order of the Appellant
Court of the Small Causes Court vide the Civil Revision Application,
which Application has been admitted vide order dated 12 th December
2019 of this Court and an interim order granting stay to the order of
ejectment has been granted.
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4. Ms.Dighe for the Interim Applicant would submit that the entire
proceedings against the Respondents, who are the original lessees, has
been prejudicial to their interest in as much as the stay has been
granted without depositing any amount in this Court and in complete
violation of the guidelines of the Apex Court in the case of Atma Ram
Properties (P) Ltd. vs. Federal Motors (P) Ltd. 1 Learned Counsel also
draws the attention of this Court to communication dated 12 th June
2023 from the Office of the Collector whereby a sum of Rs.42,30,259/-
has been demanded for the renewal of the lease, to be paid within a
period of 21 days. Learned Counsel would, therefore, submit that the
Revision Applicants be directed to deposit an amount mentioned in
paragraph 20 of the said Application with effect from the date of the
decree by the Small Causes Court and the Applicants herein be allowed
to withdraw the same in view of the demand by the Collector.
5. On the other hand, Mr.Godbole, learned Senior Counsel for the
Revision Applicants submits that the Corporation has filed a reply and
as per the Valuation Report dated 8th April 2023, the rental value as per
the Government guideline, is Rs.11,40,000/- per annum, i.e.
Rs.95,000/- per month and the fair market rent is Rs.16,20,000/- per
1 (2005) 1 SCC 705
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annum i.e. Rs.1,35,000/- per month but the rent that would be payable
to Respondents would be Rs.95,000/- per month. He draws the
attention of this Court to a table at page 23 of the reply which
mentions the 'Net Yearly Profit' with respect to the property in question
at Rs.21,94,000/-. He, therefore, submits that, until the Civil Revision
Application is finally heard, the Corporation would deposit the said
amount calculated at Rs.95,000/- per month with effect from the date
of the Appellate Court order. Ms.Dighe strongly opposes the same
stating that the said payment of Rs.95,000/- per month is far too
meagre as compared to the amounts that have been earned by the
Corporation. She, once again, refers to the table in paragraph 20 of her
application and submits that Corporation has been generating income
of Rs.8,05,000/- per month and compared to that, the amount of
Rs.95,000/- is a complete not starter. The said table is usefully
reproduced as under :
Sr.No. Particulars Amount to be Paid
1. Income from Advertisements Rs.70,000/- per month
2. Rent generated from installation Rs.35,000/- per month
of ATM Machine of Axis Bank
3. Recovery amount from Agent Rs.1,00,000/- per month
running fuel pump
4. Monthly compensation as per Rs.6,00,000/- per month
marketability of subject property
Total (per month) Rs.8,05,000/-
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6. Learned Counsel has submitted that Applicants are senior citizens
and the Corporation has been enjoying the property without paying
anything to them since 1993 and now there is a demand of
Rs.42,30,259/- from the Collector for renewal of the lease.
7. Referring to the above table, Mr.Godbole, learned Senior
Counsel, would point out that the advertisement in the said premises
are of the Respondent No.1 - Hindustan Petroleum Corporation Limited
(HPCL) and HPCL does not get anything from the same. Further, he
would submit that at present there is no ATM machine at the said
property and therefore the question of generating any rent would not
arise. He also submits that the amount of the yearly Income and
Expenditure of HPCL has already been stated in the affidavit to be
Rs.21,94,000/- per annum, and therefore, the amount of Rs.1 lakh that
has been mentioned as the amount from the agent running the fuel
pump would not be accurate. As far as amount of Rs.6 lakhs with
respect to the monthly compensation as per the market rate of the
subject property is concerned, learned Senior Counsel would submit
that the same is a leased property and would obviously not fetch that
much amount, however the same can be decided after finally hearing
the Civil Revision Application.
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8. The Interim Applicants have referred to the decision of the
Hon'ble Supreme Court in the case of Atma Ram Properties (P) Ltd. vs.
Federal Motors (P) Ltd. (supra) to submit that the interim stay to the
order of ejectment has been without any deposit and HPCL be directed
to deposit the amount claimed in paragraph 20 of their application. It
is observed from HPCL's reply that the Net Yearly Profit pursuant to the
Income and Expenditure calculation is Rs.21,94,000/-, which would
come to Rs.1,82,835/- per month.
9. Mr.Godbole, learned Senior Counsel, refers to paragraph 3(o) of
the affidavit in reply at page 23 and submits that the fair market rate of
the subject property stated to be Rs.1,35,000/- per month, may be
considered for deposit in the Court with effect from the date of the
Appellate Court order.
10. Having heard the learned Counsel at length and having perused
the material on record and having considered the submissions of the
learned Counsel, this Court is of the view that interests of justice would
be served and equities balanced if interim ad-hoc compensation at the
rate of Rs.1,35,000/- per month, with effect from 1 st November 2019, is
deposited by Respondent no.1-HPCL. Let the interim compensation
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calculated as above till date be deposited in this Court within a period
of thirty days.
11. Ms.Dighe for the Applicants has also made a request to withdraw
the amount to be deposited by the Respondents Corporation. To this,
Mr.Godbole draws the attention of this Court to the decision of the
Hon'ble Apex Court in the case of State of Maharashtra and Another vs.
Super Max International Private Limited and Others 2 and in particular
to paragraphs 79 and 80 and submits that usually the Court should not
direct the amount deposited to be paid to the landlord during the
pendency of the Appeal / Revision and for some reason, if the Court
finds it just and expedient that the amount fixed by it should go to the
landlord even while the matter is pending, it must be careful to direct
payment to the landlord on terms so that in case the final decision goes
in favour of the tenant, the payment should be made to him without
any undue delay or complications.
12. I have perused the aforesaid decision of the Hon'ble Supreme
Court and also the two paragraphs as fairly brought to my notice by
Mr.Godbole. It is not in dispute that the Applicants are senior citizens
2 (2009) 9 Supreme Court Cases 772
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and that they have not received any rent since 1993 and in particular
noting that the Collector has demanded an amount of Rs.42,30,259/-
for renewal of the lease pursuant to the communication dated 12 th June
2023 that has been brought to my notice, I find that it would be just
and expedient to permit the Applicants to withdraw an amount of
Rs.45 lakhs from the amount deposited by HPCL to defray the lease
renewal charges. Let an amount of Rs.45 lakhs be withdrawn by
Applicants within a period of two weeks from the date of deposit by
HPCL, subject to an undertaking to use the same for the payment of
renewal of the lease and that in the event, the final decision in the
Revision Application goes against them, they would return the said
amount along with interest within a period of four weeks from the date
of the said decision.
13. This is, without prejudice to the rights of both the parties to
challenge the quantum in the communication dated 12 th June 2023
from the Office of the Collector. Mr.Godbole seeks some time to file a
further affidavit in reply with respect to the said communication.
Ms.Dighe also seeks some time to file rejoinder in the matter. Let the
further reply and rejoinder be filed by the next date.
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14. List on 19th July 2023.
15. The ad-interim relief granted earlier in the Civil Revision
Application to continue till the next date.
(ABHAY AHUJA, J.)
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