3. cra 174-11.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 174 OF 2011 IN MISC. APPEAL NO. 82 OF 2010 P. Veeraragavan .. Applicant Vs The Central Silk Board & Ors .. Respondents Mr. M. Ramesh i/b M/s. Ganesh & Co for the Applicant Mr. R.R. Arolkar for Respondent No. 1 CORAM : R. Y. GANOO, J. DATE : 6th SEPTEMBER, 2011. P.C.: 1. Rule. Rule is made returnable forthwith. Learned counsel Mr. Arolkar waives service on behalf of Respondent No.1. Application is taken up for hearing forthwith by consent of learned counsel Mr. Arolkar appearing on behalf of respondent no. 1. Presence of respondent nos. 2 and 3 is not necessary for the purpose of deciding this Revision Application. 2. The applicant was occupying the premises viz. Flat Nos. 205 and 206, Building No. 11, JVPD Scheme, Juhu, Mumbai – 400 049 on the basis of the permission given to the applicant by respondent no. 3. The applicant was directed by respondent 1 3. cra 174-11.doc no. 3 to vacate the aforesaid premises (hereinafter referred to as the ‘said premises’) pursuant to the office order dated 14th May 2009. Thereafter, proceedings under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 were initiated against the applicant and the Estate Officer by his order dated 23rd July 2010 directed the applicant to vacate the said premises. He also directed the applicant to pay a sum of Rs. 25000/- per month per flat i.e Rs. 50000/- for the said premises from 1st June 2007 till the date of recovery of possession. The applicant challenged this order by filing Misc. Appeal No. 82 of 2010 in the City Civil Court, Mumbai as per the provisions of law. The learned Judge of the City Civil Court by order dated 10th December 2010 confirmed the said order of eviction. The learned Judge directed the applicant to pay a sum of Rs. 50000/- per month in respect of said premises by way of compensation for enjoying the aforesaid premises w.e.f 1st July 2009 till the applicant vacates the said premises. 3. According to respondent no. 1, services of the applicant came to be terminated by order dated 15th December 2010 and that applicant's authority to occupy the said premises came to an end pursuant to aforesaid office order dated 14.5.2009 issued by Deputy Secretary of Respondent No.3. It is a common ground that the applicant has vacated the premises on 26th December 2010. 2 3. cra 174-11.doc 4. The learned counsel appearing on behalf of the applicant stated upon instructions from applicant that applicant is not challenging that part of the order by which he was asked to vacate the said premises. In view of this, the only question which is required to be considered by this Court in this Revision Application is whether the order by which the applicant was directed to pay a sum of Rs. 50000/- per month for said premises w.e.f 1st July 2009 is right or wrong. 5. The learned counsel appearing on behalf of the applicant has submitted that if one peruses the entire record, fixation of figure of Rs. 50000/- per month is arbitrary and the said order passed by the Estate Officer as well as the learned Judge of the City Civil Court is incorrect and therefore, the same is required to be set aside. The learned counsel appearing on behalf of the applicant has further submitted that while the applicant was in service, he was paying a sum of Rs. 9000/- as a compensation per month for said premises. He, therefore, submitted that the impugned order qua compensation amount is required to be set aside. 6. Learned counsel Mr. Arolkar appearing on behalf of respondent no. 1 tried to justify the compensation amount of Rs. 50000/- per month. He submitted that before the Estate Officer, 3 3. cra 174-11.doc evidence was recorded and at the stage of recording of evidence, Mr. Ravindrakumar, Deputy Director of respondent no.1 had led evidence pertaining to quantum of compensation. The learned counsel Mr. Arolkar further submitted that the applicant has chosen not to cross-examine the said witness Mr. Ravindrakumar and therefore, the evidence of Mr. Ravindrakumar has gone unchallenged. He therefore, submitted that once it is held that the evidence of Mr. Ravindrakumar has gone unchallenged, the case of respondent no. 1 that the compensation was rightly fixed as Rs. 50000/- per month is required to be accepted by this Court and to that extent, the Estate Officer as well as the learned Judge of the City Civil Court was right in fixing the compensation of Rs. 50000/- per month. 7. In the normal course, this Court could have accepted the submissions of the learned counsel Mr. Arolkar that once the evidence led by respondent no. 1 as regards the compensation amount has gone unchallenged, the said evidence has to be accepted. However, in the present case, the facts are contrary. Learned counsel Mr. Arolkar took me through the evidence of Mr. Ravindrakumar. He submitted that respondent no. 1 had led evidence to show that the appropriate amount was Rs. 50000/- for said premises. The learned counsel Mr. Arolkar tried to point out that at the stage of admission of the Appeal 4 3. cra 174-11.doc filed by the applicant and final hearing thereof the learned Judge of the City Civil Court had ordered the applicant to pay a sum of Rs. 50000/- per month for the aforesaid premises. According to the learned counsel Mr. Arolkar, this fact clearly shows that both the Estate Officer as well as the Court had applied its mind and had rightly fixed the sum of Rs. 50000/- per month for said premises. He, therefore, submitted that no interference could be done in the impugned order. 8. I have considered the submissions. So also I have gone through the evidence of Mr. Ravindrakumar. After going through the evidence, I hold that Mr. Ravindrakumar has not stated in the evidence as to why he was insisting for sum of Rs. 50000/- per month for said premises. Mere assertion in that behalf is not sufficient. As to what compensation can be paid will have to be fixed on the basis of the appropriate material. In the present case, Respondent No.1 has not led cogent evidence to support its demand of Rs.50000/- per month for said premises. It is, in these circumstances, I am inclined to observe that the compensation amount demanded at the rate of Rs. 50000/- per month is arbitrary. In such situation, the parties and in particular, respondent no. 1 must get a chance to lead appropriate evidence to justify the amount of compensation which respondent no. 1 expects from the applicant. The applicant must get a chance to cross-examine 5 3. cra 174-11.doc the witnesses which respondent no. 1 would be examining before Estate Officer. The applicant can also avail of an opportunity of leading evidence so that the Estate Officer will arrive at an appropriate amount of compensation which can be paid by the applicant commencing from 1st July 2009 till 26th December, 2010. 9. For the reasons mentioned aforesaid, the Revision Application disposed of on following terms: i) The impugned order passed by the Estate Officer dated 23rd July 2010 as also the impugned order dated 10th December, 2010 passed by the learned Judge of the City Civil Court Mumbai in Misc. Appeal No. 82 of 2010 is set aside to the extent it directs the applicant to pay to respondent no. 1 a sum of Rs. 50000/- per month for enjoying the aforesaid premises from 1st July 2009 till 26th December 2010. ii) The question of fixing of fair amount of compensation is now remanded back to the Estate Officer. Before the Estate Officer, respondent no. 1 as well as the applicant are at liberty to lead evidence as regards the compensation which can be fixed in respect of the aforesaid premises. The Estate Officer after considering the evidence which will be placed before him pursuant to this order, will arrive at a conclusion as regards the amount payable by the applicant for his occupation of said premises from 1st July 2009 till 26th December 2010. The 6 3. cra 174-11.doc Estate Officer shall allow the applicant to cross-examine the witness of respondent no.1 and vice versa. It is hoped that the Estate Officer shall comply with this order as expeditiously as possible and preferably before 31st December,2011. iii) Learned counsel Mr. Arolkar appearing on behalf of respondent no. 1 submitted that it was the contention of the applicant that the applicant was paying a sum of Rs. 9000/- per month while he was in service. He submitted that the applicant should now be asked to pay at least a sum of Rs. 10000/- per month without prejudice to the rights and contentions of both the sides. iv) Learned counsel on behalf of the applicant, upon instructions, made a statement that the applicant has paid compensation upto 15th September 2010 at the rate of Rs. 9000/- per month and that the said amount is recovered from his salary. Since the statement is made across the bar, I am inclined to accept it. In view of this, the applicant is directed to pay to respondent no. 1 a sum of Rs. 10000/- per month for the period from 16th September, 2010 till 26th December, 2010. The applicant shall pay this amount directly to respondent no.1 on or before 5th October 2010. This payment shall be, of course, without prejudice to the rights and contentions of both the sides. Respondent no. 1 shall issue a receipt for having received the aforesaid amount. v) The applicant is hereby directed to furnish his current 7 3. cra 174-11.doc residential address to the advocate for respondent no. 1 within a period of one week from today. vi) The Estate Officer shall fix a date for recording of evidence and he shall serve a notice of the same upon the applicant as well as his advocate who is appearing in this petition so that the applicant would be able to remain present before Estate Officer. vii) There shall be no order as to costs. 10.In view of disposal of this Revision Application, nothing survives in Civil Application No. 137 of 2011 and the same is disposed of accordingly. [ R. Y. GANOO, J ] 8