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2019 DIGILAW 482 (BOM)

Laxmidevi v. Maratha Mandir

2019-02-18

MANISH PITALE

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JUDGMENT Manish Pitale, J. (Oral) - Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel appearing for the parties. 2. By this writ petition, the petitioners (original landlords) have challenged order dated 27.08.2018 passed by the Court of District Judge, Nagpur (Appellate Court) in Regular Civil Appeal No.303 of 2018, whereby an application for stay of decree filed by the respondent (tenant) has been allowed on the condition that the respondent shall pay an amount Rs. 10,000/- per month from the date of the judgment of the trial court till the decision of appeal towards occupation charges of the suit premises. The petitioners contend that the said amount is unreasonably low, considering the market rent that is being fetched by similar properties in the very same building and that, therefore, the aforesaid condition imposed by the appellate Court needs to be modified. 3. The respondent has been a tenant in shop block nos. 3 and 4 of the ground floor in a building known as Gopal Krishna Bhavan, Jhasi Rani Square, Sitabuldi, Wardha Road, Nagpur for the past more than 40 years. It is the contention of the petitioners that in addition to the said two shop blocks admeasuring about 444 sq.ft. each, area in mezzanine floor is also occupied by the respondent. The rent being paid for the said premises by the respondent was about Rs. 460/- per month for each shop block. The petitioners had filed suit for eviction and possession against the respondent under the provisions of the Maharashtra Rent Control Act, 1999, inter alia, on the ground of bona fide need. The said suit was decreed in favour of the petitioners on 22.03.2018, whereby the respondent was directed to vacate the suit premises within a period of 30 days from the date of the decree. 4. Aggrieved by the said decree, the respondent filed Regular Civil Appeal No. 303 of 2018, before the appellate Court and also filed an application for stay of the decree during the pendency of the appeal. The petitioners opposed the application for grant of stay and pointed out that even if stay was to be granted, it had to be subject to conditions. The petitioners opposed the application for grant of stay and pointed out that even if stay was to be granted, it had to be subject to conditions. The petitioners relied upon the ready reckoner of the property where the suit shop blocks are located and on that basis, it was contended on behalf of the petitioners that even if the decree granted by the trial Court was to be stayed, the respondent ought to be directed to pay occupation charges by taking into account market rent and the ready reckoner placed on record. 5. By the impugned order dated 27.08.2018, the appellate Court granted stay of the decree passed by the trial Court, subject to the respondent paying Rs. 10,000/- per month as occupation charges to the petitioners. Aggrieved by the said order passed by the appellate Court, the petitioners have filed this writ petition. 6. Mr. Sunil Manohar, learned senior counsel appearing for the petitioners, contended that the condition of paying Rs. 10,000/- per month as occupation charges was unreasonably low taking into account the material placed before the appellate Court for determining reasonable amount towards payment of occupation charges by the respondent during the pendency of the appeal. The learned senior counsel relied upon ready reckoner, which demonstrated that the rent at market value of the premises in question would be much higher than what was granted as occupation charges by the appellate Court. The learned senior counsel also placed reliance on the copies of the lease deeds of the premises given on rent in the recent past, including a property given on rent in the very same building in the year 2017, to contend that the expected quantum of occupation charges in respect of the suit premises was anywhere in between Rs. 1,00,000/- to more than Rs. 2,00,000/- per month. The learned senior counsel submitted that this material was not referred to by the appellate Court at all while passing the impugned order and that the same was in the teeth of the law laid down by the Hon''ble Supreme Court and this Court in the judgments in the cases of Atma Ram Properties (P) Ltd. vs. Federal Motors Pvt. Ltd. - 2005(3) Bom. C.R. 274, Super Max International Pvt. Ltd. and another vs. State of Maharashtra - 2009(2) Mh.L.J. 134 and Adam Ali H. Firdosy v. National Insurance Company Ltd. - judgment and order dated 6.3.2018 in Writ Petition No. 5712/2017. 7. On the other hand, Mr. R.R. Prajapati, learned counsel for the respondent submitted that the appellate Court had imposed a reasonable condition by asking the respondent to pay an amount of Rs. 10,000/- per month during the pendency of the appeal as occupation charges. It was submitted that the building in which the suit shop blocks are situated, is more than at least 50 years old and that the nature of business carried out by the respondent is such that the income of the respondent is not enough to be able to pay the occupation charges demanded by the petitioners. It is submitted that the quantum of occupation charges in a situation like that which arises in the present case, cannot be said to be unreasonably low and that if the Court imposes condition that the respondent is unable to satisfy, it would take away the right of the respondent to maintain its appeal before the appellate Court. It was also submitted that direction be given to the appellate Court for expediting the hearing of the appeal so that the validity or otherwise of the decree passed by the trial Court would be decided on merits and during such period, the respondent would continue to pay the amount towards the occupation charges as directed by the appellate Court. Reliance was placed on judgment of the Hon''ble Supreme court in the case of Niyas Ahmad Khan vs. Mahmood Rahmat Ullah Khan -(2008) 7 Supreme Court Cases 539 and the judgment of this Court in Chandrakant vs. Sharmila 2009 (2) Mh.L.J. 243 . 8. Heard learned counsel for the parties and perused the record. 9. There is no doubt about the position of law laid down by the Hon''ble Supreme Court and this Court as regards the manner in which the occupation charges are to be determined in a situation where the tenant is faced with a decree of eviction and an appeal is filed before the appellate Court. While granting stay of the decree passed against the appellant, the appellate Court is expected to impose conditions that are reasonable and those that are based on the prevalent market conditions. While granting stay of the decree passed against the appellant, the appellate Court is expected to impose conditions that are reasonable and those that are based on the prevalent market conditions. This is because when the trial Court passes decree of eviction, the relationship of landlord and tenant stands severed and if the person who has been occupying the premises as a tenant desires to occupy the same during the pendency of the appeal challenging the eviction decree, he is expected to abide by conditions that are imposed by the appellate Court while granting stay. 10. The judgments relied upon by the learned senior counsel appearing on behalf of the petitioners show that relevant material for determining quantum of such occupation charges can certainly be ready reckoner, lease deeds or rent agreements executed in the recent past concerning comparable properties, so that the Court can arrive at a reasonable figure towards occupation charges while granting stay of decree of eviction faced by the tenant. In the judgments in the case of Super Max International Pvt. Ltd. v. State of Maharashtra (supra) and Adam Ali H. Firdosy v. National Insurance Company Ltd. (supra), this Court has proceeded on the basis that when the market rate of the suit premises is determined on the basis of a ready reckoner or other such relevant material, 6% of such market value gives the figure that the suit property would fetch annually towards rent. On this basis, in the aforesaid cases, this Court has proceeded to determine the figure of occupation charges to be paid by the tenant who seeks stay of the eviction decree. The aforesaid position of law is not seriously disputed by the learned counsel appearing for the respondent, but, he has placed reliance on the judgment of the Hon''ble Supreme Court in the case of Niyas Ahmad Khan v. Mahmood Rahmat Ullah Khan (supra) to contend that the appellate Court in the present case had fixed a reasonable figure towards occupation charges. It was contended that when the appellate Court imposes condition while determining the quantum of occupation charges, it cannot adopt an arbitrary figure and that the condition cannot be unreasonable or oppressive. It was contended that when the appellate Court imposes condition while determining the quantum of occupation charges, it cannot adopt an arbitrary figure and that the condition cannot be unreasonable or oppressive. The said judgment of the Hon''ble Supreme Court relied upon by the learned counsel for the respondent is clearly distinguishable because in that case the landlord had failed in both the Courts below and it was the writ petition of the landlord which was being considered by the High Court and in such a situation, the question that the High Court considered was as to whether the tenant could be asked to pay a higher figure towards occupation charges or rent during the pendency of the writ petition before the High Court. In the said case, since the Courts below had not granted the eviction decree, the relationship of landlord and tenant continued and, therefore, the observations made by the Hon''ble Supreme Court in the said case pertained to a totally different factual scenario. 11. As regards the judgment relied upon by the learned counsel for the respondent in the case of Chandrakant v. Sharmila (supra), while taking into consideration various earlier judgments of this Court and the Hon''ble Supreme court, it was held as follows:- "21. What emerge from these are:- (d) The Court, needs to consider and take note of (i) the Rent Control Legislation, governing the particular premises/residential or non-residential (ii) the Location/area of the premises (iii) the age/nature of construction of the building/premises (iv) the facilities in the premises and outside the premises, advantages and disadvantages (v) the market value and the rental value of the premises based on architecture/expert/valuation reports /opinion (vi) other instances of the rent/licence fees of similarly situated premises (vii) the date of termination of the tenancy/license." 12. Even if the said position of law, relied upon by the learned counsel for the respondent, is applied to the facts of the present case, it becomes clear that while passing the impugned order, the appellate Court failed to take into consideration the material placed on record on behalf of the petitioners. Although it is contended on behalf of the respondent that the lease deed placed on record before this Court was not part of the record of the appellate court, there is no dispute about the fact that the ready reckoner was very much on record before the appellate Court. Although it is contended on behalf of the respondent that the lease deed placed on record before this Court was not part of the record of the appellate court, there is no dispute about the fact that the ready reckoner was very much on record before the appellate Court. In fact, it was on the basis of the said document that contentions were raised on behalf of the petitioners to demonstrate that if the respondent was to be granted stay of the execution of the decree passed by the trial Court against it, reasonable condition of payment of occupation charges was to be imposed, which would take into account the ready reckoner already placed on record before the appellate Court. Since there is no discussion on the said aspect of the matter, the impugned order is clearly erroneous. 13. Yet, a perusal of the impugned order does show that the appellate Court is aware about the position of law as manifested in the aforesaid judgments referred to above, as regards the manner in which the quantum of occupation charges has to be determined while granting stay in favour of the tenant. A perusal of the impugned order, particularly paragraph 18 thereof shows that while arriving at the figure of Rs. 10,000/- as occupation charges, the appellate Court has not discussed the material placed on record on behalf of the petitioners and it appears that the amount of Rs. 10,000/- per month has been fixed without any basis by the appellate Court. 14. In this situation, there is no alternative for this Court but to analyse the material on record in terms of the law laid down by the Hon''ble Supreme Court and this Court in earlier judgments, to arrive at a reasonable figure towards the occupation charges, as a condition for grant of stay of the eviction decree. 15. On behalf of the petitioners, reliance has been placed on the ready reckoner, which shows the rate of Rs. 1,49,400/- per square meter as the market value of properties in the area where the suit shop blocks are located. There is no dispute about the fact that the shops are located on the main road. 15. On behalf of the petitioners, reliance has been placed on the ready reckoner, which shows the rate of Rs. 1,49,400/- per square meter as the market value of properties in the area where the suit shop blocks are located. There is no dispute about the fact that the shops are located on the main road. A perusal of the lease deeds placed on record, particularly the lease deed pertaining to the premises in the very same building of the year 2017, shows that the property was leased out for an amount of about Rs. 86,580/-per month. In this regard, it is submitted on behalf of the respondent that in the very same building, the respondent is a tenant of the petitioners in a shop block where, during the pendency of the proceedings before the trial Court, the rent had been enhanced to about Rs. 8,000/- per month. According to the learned counsel appearing for the respondent, if the said figure is taken into consideration, the impugned order passed by the appellate Court is justified. 16. The said contention raised on behalf of the respondent is unsustainable on the short ground that in the other premises where the respondent is now paying rent of Rs. 8,000/- per month, it continues to enjoy the status of a tenant, while in the suit shop premises the relationship of landlord and tenant stands severed due to passing of the decree of eviction by the trial Court. 17. If the ready reckoner is taken into consideration and applied to the suit shop premises, it has come on record that the market value of the suit shop block would come to about Rs. 82.71 square meter X 1,49,400/- per square meter. Although the petitioners have contended that the area in occupation of the respondent is about 1332 square feet, but taking into consideration the pleadings on record and the fact that the appeal is still pending before the appellate Court, even if the area of only two shop blocks is taken into consideration, it undisputedly comes to about 890 square feet, which is about 82.71 square meters. Therefore, the rate specified in the ready reckoner has been multiplied by the figure of 82.71 square meters to arrive at market value of the suit shop blocks. Therefore, the rate specified in the ready reckoner has been multiplied by the figure of 82.71 square meters to arrive at market value of the suit shop blocks. It is undisputed that if the said market value is taken into consideration and the rent of the two shop blocks is estimated at about 6% of the said figure, the monthly rate of rent comes to about Rs. 1,71,631/- per month. 18. It has been strenuously contended on behalf of the respondent that building in question where the suit shop blocks are located is more than 50 years old and that, therefore, this aspect also needs to be taken into consideration while arriving at monthly figure of occupation charges. Considering the said submission, it can be said that the monthly figure on the basis of application of ready reckoner and taking into account the age of the property, would come to about Rs. 1,50,000/- per month. At this juncture, it was submitted on behalf of the respondent that the lease deed of the year 2017, on which the petitioners themselves had placed reliance before this Court, shows that property was leased out for an amount of about Rs. 86,580/- per month. It was, therefore, submitted that the said fact also needs to be taken into consideration. It appears that in the said lease deed, the tenant is a Bank and the period of lease is upto the year 2031 with periodical increase in the rent amount every five years. Taking into consideration these factors, it appears that a figure of Rs. 1,00,000/- per month is a reasonable amount towards occupation charges for the suit shop blocks, in the facts and circumstances of the present case. 19. In the light of the above, the writ petition is partly allowed and the impugned order is modified to the extent that there shall be stay of the decree of eviction granted by the trial Court, subject to the condition that the respondent shall pay a sum of Rs. 1,00,000/-per month from the date of the judgment of the trial Court till the decision of the appeal, towards occupation charges for the suit premises. The arrears of the said occupation charges at the aforesaid rate shall be deposited by the respondent within a period of three months from today. 20. 1,00,000/-per month from the date of the judgment of the trial Court till the decision of the appeal, towards occupation charges for the suit premises. The arrears of the said occupation charges at the aforesaid rate shall be deposited by the respondent within a period of three months from today. 20. In the facts and circumstances of the case, the appellate Court is expected to hear and dispose of the appeal expeditiously. 21. Rule in the aforesaid terms with no order as to costs.