1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3887 OF 2009 Satish Kumar Modi,16A, Mayfair Gardens, Little Gibbs Road, Malabar Hill, Mumbai 400 007 through his constituted attorney Smt.Yash Kohli of Mumbai. Petitioner versus 1.M/s.New Indua Assurance Company, 87, M.G.Road, Fort, Mumbai. 2. The Estate Officer, New India Assurance Co. Ltd, 4th Floor, 87, M.G.Road, Fort, Mumbai. Respondents Mr.A.R.Pandey for petitioner. Mr.V.Y.Sanglikar for respondents. CORAM : A.S.OKA, J. DATE : 05th March 2010 JUDGEMENT :- 1. Submissions of the learned counsel for the parties were heard on the earlier date. However, order was not passed as learned counsel for the petitioner had sought time to take instructions. The Petition was taken-up for final hearing. 2 2. The first respondent is the New India Assurance Company Limited. At the instance of first respondent, eviction proceedings were initiated against the petitioner. On 24th October 2003 the Estate Officer (second respondent) passed an order of eviction in exercise of powers under the Public Premises (Eviction of the Unauthorised Occupants Act, 1971 ) against the petitioner directing the petitioner to vacate the flat in dispute and to pay the damages calculated @ Rs.2.46 lakhs per month. An appeal was preferred against said order by the petitioner. By the judgment and order dated 6th May 2005 the learned Principal Judge of the City Civil Court, Mumbai partly allowed the appeal and order of eviction was confirmed. However, order fixing the damages was set aside and second respondent was directed to make a fresh determination. The said order of the learned Principal Judge was challenged by the petitioner by filing a writ petition. The writ petition was dismissed. In special leave petition filed by the petitioner, though no relief was granted to the petitioner, time to vacate the said flat was granted against an undertaking. Accordingly, an undertaking was filed and in terms of the undertaking on 21st March 2006 the petitioner vacated the flat. On the basis of the evidence on record, the second respondent passed an order fixing the damages @ Rs.1.48 lakhs per month together with simple interest thereon @ 6% p.a. from 19th January 2002. The said order was challenged in appeal. The appeal has been dismissed by the learned Principal Judge and therefore this writ petition. 3 3. Learned counsel appearing for the petitioner has made detailed submissions. It is submitted that the amount of damages fixed by the second respondent is exorbitant. He submitted that no reasons have been assigned by the second respondent for fixing the damages @ Rs.1.48 lakhs per month. He submitted that after the order of remand was passed, first respondent has not chosen to lead any new evidence and no material was placed on record before the second respondent Estate Officer. He submitted that the Appellate Court found order passed earlier as regards the payment of damages vulnerable and, therefore, the order of remand was passed. However, the liberty was not availed of by the first respondent by leading evidence. He invited my attention to the relevant part of order of remand. He submitted that the evidence on record was not accepted and therefore, the order of remand was passed and in absence of any material brought on record by the first respondent, there was no justification for passing the impugned order. The learned counsel for the respondents supported the impugned judgment and order. 4. The only dispute is as regards the quantum of damages. There is no dispute that the damages are payable for the period from 19th January 2002 to 31st March 2006. It must be stated here that the disputed flat is Flat No.16A admeasuring 3252 sq. feet of built up area equivalent to 2710 sq. feet of carpet area on 7th floor of building Mayfair Garden at Malbar Hill, Mumbai. The second respondent has referred to the evidence adduced after the order of remand. The second respondent has referred to 4 Rule 8 which deals with assessment of damages. He has considered the factors which are relevant for determination of damages. 5. It is not in dispute that the said flat admeasures 3252 sq.ft. of built up area. As noted by the second respondent in his order, the flat is situated in the best residential locality of Mumbai of Malabar Hill in South Mumbai and it is the case of petitioner's own witness that the flat was in excellent condition. 6. A perusal of order passed by the second respondent shows that reliance was placed by the first respondent on agreement dated 10th October 2002 which was a leave and license agreement pertaining to another flat in the same building having approximately same built-up area with facility of using two parking spaces. Apart from deposit of Rs.2.6 crores, the said agreement provides for licence fee of Rs.83,000/- p.m. And taxes of Rs.33,000/- p.m.. The second agreement on which reliance was placed by the second respondent is dated 25th September 2002 relating to a flat in the same building where licence fee was fixed at Rs.2.20 lakhs p.m. in respect of flat which was allowed to use to Chairman of SEBI. The second respondent has considered the agreement in respect of Flat No.C-39 admeasuring 3285 sq. feet of built up area in the same building. The said agreement provides for monthly licence fee/rent of Rs.83,000/- p.m. and licensee paid interest free deposit of Rs.2.60 crores in addition to the rent. The second Respondent calculated monthly yield by taking 5 interest only @ 3% p.a. on deposit of Rs.2.6 crores. The said monthly yield comes to Rs.65,000/- p.m. The second respondent thus added Rs. 65,000/- to the agreed licence fee of Rs.83,000/- and has arrived at a figure of Rs.1.48 lakhs. It must be noted that under the said agreement, apart from a sum of Rs.83,000/-, a sum of Rs.33,000/- was payable to the licensor/landlord by way of taxes. The second respondent ignored the instance of flat in possession of Chairman of SEBI in the same building where licence fees is shown at Rs.2.20 lakhs per month. In the circumstances, the amount of damages fixed at Rs.1.48 lakhs per month for the period from 19th January 2002 to 31st March 2006 is just and proper. 7. The Appellate Court has gone into the aforesaid finding recorded by the second respondent estate officer. It is also noted by the second respondent that the rate as per the ready reckoner will be much more. The valuation report of the expert valuable submitted by the first respondent contains an opinion that the market rate of rent was Rs.2.71 lakhs per month. 8. Hence, it is not possible to interfere with the concurrent findings recorded by the authorities below of fixing the damages of Rs.1.48 lakhs per month. Interest has been granted only @ 6% p.a.. There is no merit in the petition and the same is accordingly dismissed with no order as to costs. 6 9. Learned counsel for the petitioner prays for continuation of ad- interim relief granted on 14th October 2009. The request is opposed by the advocate for the first respondent. Ad-interim relief will continue to operate for a period of six weeks from today. (A.S.OKA, J.)