dgm gm gm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.6152 OF 2008 PETITION NO.6152 OF 2008 PETITION NO.6152 OF 2008 Adishwar Lal Jain Petitioner Vs. 1. Mr.Balram R. Mukherji 2. Mrs.Vaishali Balram Mukherji 3. BASF India Ltd. Respondents. Mr.N.B.Shah i/by Mr.Piyush Shah for the petitioner. Mr.N.V.Walawalkar, Sr.Advocate i/by M/s.DSK Legal for respondents 1 and 2. CORAM CORAM CORAM : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. DATED DATED DATED : 9th January, 2009. : 9th January, 2009. : 9th January, 2009. P.C. P.C. P.C. The petitioner/original defendant no.2 has moved application for grant of stay to execution of the decree of possession of the suit premises. The lower Appellate Bench of Small Causes Court granted the stay and directed to deposit Rs.50,000/- per month pending the Appeal. 2. Without observing anything on the merits of the matters, there is no doubt that the Appellate Court has power to pass conditional order while granting stay of decree of possession. The said condition should be fair and reasonable specially with regard to the amount of compensation/occupation charges. ( 2 ) Admittedly the suit premises is independent bungalow with compound and garden which, according to the landlord/owner can fetch an amount of Rs.1,00,000/0 (Rupees one lack) per month. Therefore, the claim to retain the possession by paying alleged monthly rent of Rs.825/- which he was paying since 1966 is definitely not fair and reasonable compensation. However, considering the various facets as observed by me in the judgment dated 7th January, 2009 in Writ judgment dated 7th January, 2009 in Writ judgment dated 7th January, 2009 in Writ Petition Petition Petition No.6858/2008-Chandrakant Dhanu & anr. v. No.6858/2008-Chandrakant Dhanu & anr. v. No.6858/2008-Chandrakant Dhanu & anr. v. Sharmila Sharmila Sharmila Kapur & ors. Kapur & ors. Kapur & ors., I am of the view that, in the facts and circumstances of the case, the Court should re-consider the aspect of fixing the amount of Rs.50,000/- per month. However, it is made clear that the person who is in occupation of premises unauthorisedly and without any right or protection under respective Rent Control Legislation, such person cannot claim benefit and/or protection. Therefore, the Court need to consider various such factors in assessing the compensation considering the rights of the landlords/owners of the property. In the present case, the petitioner is definitely in occupation of huge property. Therefore, the Court need to consider afresh the fair and reasonable possession from the point of view of landlord/owner also. The tenant cannot retain possession of such bungalow with ( 3 ) compound and garden without paying the reasonable compensation to the landlord/owner. 3. In view of the above, the impugned order is quashed and set aside, to the extent of directing to deposit Rs.50,000/- per month. The Appellate Court to re-consider the application by giving full opportunity to both the parties and pass appropriate order based upon the material available as expeditiously as possible preferably within four weeks from the date of the copy of the order. The parties to cooperative in the matter. 4. The amount, if any, deposited by the petitioner be adjusted. It is made clear that while fixing the compensation, the court be not influenced by the interim order passed by this court to deposit Rs.5,000/- per month till next date. The Court is free to pass appropriate order based upon the material available on record. The parties are at liberty to settle the matter also. 5. Resultantly, the petition is partly allowed to the above extent. No costs. ( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.)