IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.864 OF 2006 IN WRIT PETITION NO.5071/2005 G.S.Mhaskar and Ors. Petitioner Vs. Apex Properties (P)Ltd. Mr.S.R.Walawalkar i/b Shri.S.R.Bhalekar, advocate for the petitioners Mr.R.A.Thorat ,advocate for the respondents Coram : A.M.Khanwilkar,J. Date :11.7.2008 P.C. 1] Heard counsel for the parties .This application is filed by the landlord for imposing reasonable conditions on the tenant /writ petitioner before this Court during the pendency of writ petition . The writ petition questions the decree of eviction passed against the tenant .The same has been admitted by this Court on 10.10.2005 . The landlord by this application prays for recovery of amount of Rs.86,172/- p.m. from the date of filing the suit from August,1991 to January,2006 and for future mesne profit at the same rate. 2 2] At the outset , it needs to be recorded that the prayer as couched cannot be accepted as it is. In view of the legal position expounded by the Apex Court in the case of Atmaram reported in 2005 (1) S.C.C.,705 the landlord at best would be entitled for compensation only from the date of decree which was passed in this case on 11.4.2001 . Be that as it may, in the present case as the writ petition has been admitted only on 10.10.2005 and on the same day interim relief has been granted in favour of the tenant after hearing both the sides.However, I would confine the relief of compensation from February,2006 when the present application has been filed. 2] The question is what is the fair compensation amount to be prescribed in respect of the suit premises ? It is not in dispute that the suit premises are non-residential premises used as godown or warehouse admeasuring 11900 sq.ft. .It is also not in dispute that the Court below has passed decree of eviction against the tenant on the ground of subletting. That decree has been passed on 11.4.2001 . The premises were let out to the petitioner /tenant in the year 1983 for monthly rent of Rs.6,000/- . According to the landlord the tenant, however, permitted third party to enjoy the suit property for higher consideration and was making profit, which was the ground for terminating the tenancy and accepted by the court below. The compensation amount paid by the third party to the tenant is stated to be amount of Rs.92,000/- p.m.. In my opinion, if that is the amount 3 accepted by the tenant towards compensation in respect of suit premises from third party, that can be taken as the basis for determination of compensation amount to be paid by the tenant to the landlord. The landlord relying on the said circumstance prayed for additional compensation amount at Rs.86,172/- p.m. .However,the tenant has disputed its liability to pay such high rent on two grounds. Firstly, according to the tenant, the premises were used as a warehousing facility and the tenant had permitted his client to store the goods in the suit premises , which was well within the norms specified in paragraph 1,6,7, and 9 of the agreement between the petitioner and the Applicant / landlord .This argument is of no avail to the tenant. The Court below has already recorded finding of fact on the factum of subletting . Till that finding of fact is over turned , the arguments now canvassed cannot be taken in to account. 3] It was then contended that the landlord cannot be allowed to make profit which is prohibited under the provisions of Bombay Rent Act .This argument is on the premise that the landlord himself is a tenant of Bombay Port Trust on monthly rent basis. The landlord cannot be allowed to charge higher compensation amount than the one payable by him to the principal owner ,Bombay Port Trust . This argument does not commend to me. The landlord / applicant herein has been let out the disputed property by the Bombay Port Trust on terms and conditions agreed upon between the Bombay Port Trust and applicant/landlord . It is not the case of the 4 tenant that the said terms and conditions prohibited subletting of the premises by the landlord and that too on no profit basis . In any case , the applicant is the owner of the structure which has been let out to the tenant/petitioner herein. Thus understood , the fact that the landlord will be making profit which is prohibited by the provisions of Bombay Rent Act is an argument of desparation. 3] Reverting to the question as to what should be the reasonable compensation for the suit premises , as aforesaid , that can be answered on the basis of the material already on record which indicates that the petitioner tenant was recovering an amount of Rs.92,172/-p.m. from Mahanagar Telephone Nigam Ltd. .It is a different matter that Mahanagar Telephone Nigam has now vacated the premises , but the transaction between MTNL and the petitioner tenant is indicative of the potential of suit premises to derive rent or compensation which is admeasuring about 12,000/-sq.ft..The counsel for the petitioner contends that the amount which was received by the petitioner tenant was not towards monthly rent from MTNL but was towards warehousing charges recovered from them in the capacity of the petitioner tenant's client . That is a matter which will have to be considered at the hearing of the writ petition as to whether it was a case of subletting or otherwise. For the time being , this order is confined to the question about reasonable compensation amount to be paid by the tenant to the landlord for enjoying the interim protection inspite of decree of eviction passed as back as on 11-4-2001.The 5 tenant has not produced any material to counter the case of the landlord /applicant which is supported by valuers report ,so as to establish its stand that the rent in respect of suit premises though admeasuring 12000 sq.ft. and used for commercial or non residential purpose would be anything less than Rs.92,000/- p.m.. In this view of the matter , I would accede to the request of the applicant to fix the monthly additional compensation amount @ Rs.86,172/- p.m. to be paid by the petitioner tenant with effect from February,2006 . Accordingly this application is disposed of on the following terms . (a) The petitioner tenant shall deposit the arrears in this Court with effect from February ,2006 till the passing of this order, amount towards additional compensation fixed at Rs.86,172/p.m., within four weeks from today , failing which the interim protection granted by this Court under order dt.10/10/2005 shall stand vacated forthwith without further reference to the Court. (b) Besides depositing the arrears in this Court as aforesaid the petitioner tenant shall pay every month additional compensation amount of Rs.86,172/- before the 10th of every English calendar month to the applicant/landlord . (c) The payment made by the petitioner /tenant will be without prejudice to the rights and interest of the parties and obvious by subject to the outcome of the present petition. 6 (c) The respondent shall file undertaking in this Court within two weeks from today to the effect that the respondent landlord shall bring back the entire amount recovered under this order alongwith interest thereon as may be determined by the Court at the final hearing of this petition . (e) Filing of such undertaking is condition precedent for withdrawing the amount deposited by the petitioner tenant either towards arrears or future rent in terms of this order. (f) It is further ordered that in case the petitioner / tenant commits two defaults in payment of monthly rent interim protection shall stand vacated forthwith . The application is disposed of accordingly. (A.M.Khanwilkar,J.)