Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Misc.app.187.18
Received on : 03/05/2018
Registered on : 20/07/2018
Decided on : 22/10/2019
Duration : Y M D
01 03 02
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Misc. Appeal No.187 of 2018
Saleem Akhter
Age62 years, Occ.:Retired,
residing at plot no.4 GHA 21,
Housing Board, Shastri Nagar,
Jaipur, StateRajasthan,
Pin code302016
and presently residing at
Sarla CoOperative Housing
Society, 2nd floor, Flat No.F/53,
Yari Road, Versova, Andheri(W),
Mumbai61 ..Appellant
V/s.
The New India Assurance Co. Ltd.
A Government Company having its
registered and Head Office at
New India Assurance building,
87, M.G. Road, Fort,
Mumbai1 ..Respondent
Coram : H.H.THE PRINCIPAL JUDGE
V.G. BISHT
Dated : 22nd October,2019
(C.R.No.19)
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Advocate Mr.Rahul D. Motkari for appellant.
Advocate Ms.Vaishali Ugale i/b. Advocate Mr.V.Y. Sangalikar for
respondent.
O R A L J U D G M E N T
Being aggrieved by the order dated 26th April,2018 directing
payment of damages under Section 7(3) of the Public Premises (Eviction
of Unauthorised Occupants)Act,1971 ('the P.P. Act' for short) passed by the
Estate Officer, the appellant has preferred the present appeal.
2 Brief facts: Appellant was the employee of respondent and in
a departmental enquiry was awarded punishment of compulsory
retirement alongwith forfeiture of gratuity. His occupation of the
premises/residence is held to be unauthorized occupation with effect from
13th May,2011 by the respondent and according to respondent he is liable
to pay damages @ Rs.77,595/ per month till the vacation of premises.
3 According to appellant, the learned Estate Officer erred in
relying upon the evidence led by Ramkrishan Kejriwal i.e. valuer on behalf
of respondent inasmuch as said valuer had failed to prove his competence,
education and inspection of the property etc. The valuation report is dated
2014 and the valuation is done of the year 2011. Moreover, the said
valuer is on the panel of respondent company, never visited the site and no
prior information was given to him. Hence, this appeal.
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4 Mr.Rahul D. Motkari, learned counsel for appellant, submitted
that the possession of the property is already handed over to the
respondent and by way of present appeal the damages awarded by the
learned Estate Officer have been challenged. Valuation report relied on by
the learned Estate Officer is not proper inasmuch as the valuer did not visit
the premises and also no notice of inspection of premises was ever given to
the appellant. The learned counsel also invited my attention to the cross
examination of the valuer and pointed out how the valuer has adopted a
biased approach against the appellant. According to learned counsel, in
such circumstances, the impugned order is liable to be quashed and set
aside.
5 Ms.Vaishali Ubale, learned counsel for respondent, on the
other hand, not only supported the findings of the learned Estate Officer
but also submitted that the valuer in the present matter has properly taken
into consideration all the relevant facts while arriving at quantum of
damages. There being no illegality, no interference is called at the hands
of this court, argued learned counsel.
6 Following points, therefore, arise for my consideration and my
findings thereon for the reasons are as follows:
POINTS FINDINGS
1) Whether the impugned order
passed by the Estate Officer is ..In the affirmative
legal, just and proper?
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2) What order? ..As per final order
R E A S O N S
As to point no.1:
7 I have carefully gone through the record and proceedings and
more particularly the evidence recorded before learned Estate Officer. On
behalf of present respondent, two witnesses were examined namely, Ratan
Kumar Purohit, Deputy Manager and Ramkrishan Kejriwal, a valuer.
8 Ratan Kumar Purohit stated in his evidence, which is not
disputed, that the present appellant was compulsorily retired from service
by order dated 12th May,2011 and was in unauthorised occupation of
premises with effect from 13th May,2011. It is his further evidence that
respondent is entitled to claim damages @ Rs.77,595/ on the basis of posh
Bandra area in which the premises is situated and the amenities around it.
Essentially, the rate of damages deposed by this witness was based on the
evidence of valuer and, therefore, for all purposes it is necessary to go
through the evidence of Ratan Kumar Purohit who assessed the damages.
9 It appears from the evidence of Ramkrishan Kejriwal that not
only he is an engineer by profession but also a fellow of Institute of
valuers. He is also on the panel of valuers of the Central Government. It is
his further evidence that he inspected the premises in question on 17th
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June,2014 with a view to ascertain prevailing market rate for the year
2011 and in his opinion, prevailing rent for the year 2011 in respect of the
premises in question was Rs.105 per sq.ft. per month for built up area.
Moreover, premises are situated in posh locality having facilities like banks,
markets and educational institutes. It is well connected by taxi, bus,
rickshaw and railways. Apart from it, building is in an excellent condition.
It is also well maintained and have lift and staircases.
10 It appears from the evidence of this material witness that
while computing the rent of the premises in question, the main factors
which weighed in his minds were locality, the facilities, transport
connectivity and the premises having lift facility and its good condition.
However, it is pertinent to note that looking into the facilities/amenities
and the maintenance of the building, this witness did not look into the
similarly situated premises fetching the rent as per prevailing market rates.
No instances of comparison are noticed from his evidence. This is the very
material aspect which the valuer could not have over looked before arising
at fair and reasonable rate of monthly rent of the premises in question.
There is also something more in the crossexamination.
11 Although, his evidence shows that he visited the premises in
question, but it appears that no notice of inspection was given either to
appellant or to the occupants of the premises and when this fact was put to
him in the crossexamination, he stated that he did not give notice to the
occupant hoping that the appellant might have informed them. What is
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clear from his evidence is that no notice of inspection was given to
appellant or occupants to the premises in question in respect of inspection
allegedly carried out by him.
12 In the crossexamination when this witness was asked about
the proof of such inspection, he stated that he prepared the plan of the flat
but signature of occupant was not obtained. So also according to this
witness, he did not draw any panchanama of the spot inspection. From
this, it is clear that although he prepared the plan of flat but did not obtain
signature of the person or the occupant who was occupying the premises in
question at the relevant time nor any spot panchanama with the help of
witness was prepared so as to prove his visit to the premises in question.
13 I am pointing out this for the reason that the appellant has
claimed that this witness had biased approach inasmuch as this witness is
on the panel of respondent, which is not disputed anywhere. This being
so, all the necessary steps required for the purposes of the inspection of
premises in question ought to have been followed by this witness.
Apparently, except the bare words and the report of this witness, no
independent evidence is forthcoming to prove his visit to the premises in
question.
14 For all the aforesaid reasons it was wrong on the part of
learned Estate Officer to blindly accept the report of valuer.
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15 Apart from above, it is also not made clear by the learned
Estate Officer whether while saddling damages, the point of limitation was
kept in mind or not.
16 For the aforesaid reasons, in my considered opinion, this is a
fit case which needs to be remanded for fresh adjudication in the light of
observation made by me during the course of discussion. Hence, the
following order:
O R D E R
Misc.Appeal No.187/18 is allowed.
Impugned order dated 26th April,2018 is hereby quashed and
set aside.
Estate Officer is directed to adjudicate the damages afresh
including the question whether or not claim of damages or part thereof is
barred by limitation by affording the opportunities to both the sides.
The Estate Officer shall dispose of the matter (question of
damages) within a period of three months from the date of communication
of this order.
22/10/2019 (V. G. BISHT)
Principal Judge,
Gr.Bombay.
Dictated on : 22/10/2019
Transcribed on : 22/10/2019
Signed by HHJ on : 23/10/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographer: Mrs.Aruna S. Jayade
Upload date and time: 23/10/2019 (5.00 p.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri V.G. BISHT(C.R.No.19)
Date of Pronouncement of Order 22nd October,2019
Order signed by P.O. on 23rd October,2019
Order uploaded on 23rd October,2019
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