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High Court of Judicature at Bombay
R.G. KETKAR, J.
AMI Merchandising Pvt. Ltd.
Versus
State of Maharashtra & Others
Writ Petition No. 3886 of 2010 With Civil Application No. 2184 of 2010 With Civil Application No. 2493 of 2010 With Civil Application No. 2494 of 2010
Decided On: 03-04-2014
Maharashtra Rent Control Act, 1999 - Section 45 - Issuance of warrant of possession. - Competent authority required to satisfy itself, before issuing warrant of possession, that eviction order had become final. - In view of Section 45 of the Maharashtra Rent Act extracted hereinabove, the Competent Authority committed serious error in issuing warrant of possession on 6.3.2010. Though the Commissioner directed the Competent Authority to execute order immediately, it cannot issue warrant of possession contrary to Section 45, the Competent Authority ought to have satisfied itself in terms of Section 45 of the Maharashtra Rent Act whether the eviction order had become final and thereafter only issued warrant of possession. Respondent Nos. 4 and 5 also committed grave error in filing application on the very next day of passing of the order by the Commissioner and executing warrant of possession on the basis of the order passed by the Competent Authority. The Competent Authority failed to appreciate that Section 45 will become applicable only in the event if any person refusing or failing to comply with order of the eviction made under Section 43 "within 30 days of the date on which it becomes final."
1. Heard Mr. P.K.Dhakephalkar, learned Senior Counsel for the petitioner and Mr.S.D.Rairikar, learned AGP for respondents No. 1 to 3, Mr.Amit Jagoo, learned Counsel for respondent No.4 and Ms.Nishigandha M.Gurav, learned Counsel for respondent No.5 at length. Rule. The learned Counsel for the respective respondents waive service. At the request and by consent of the learned Counsel appearing for the parties, rule is made returnable forthwith and the petition is taken up for final hearing.
2. By this petition under Article 227 of the Constitution of India, the petitioners have challenged i) the judgment and order dated 14/07/2008 rejecting the application made by the petitioners for leave to defend ii) the order dated 14/07/2008 rejecting the Intervenor's Appellantlication dated 11/06/2008 filed by one Mr.Nirav Modi and iii) the judgment and order dated 14/07/2008 passed by the Competent Authority (Rent Act) Konkan Division, Mumbai (for short 'the Competent Authority') in Case No. 7 of 2008 allowing the application made by the respondents No. 4 & 5 under section 24 of the Maharashtra Rent Control Act, 1999 (for short 'Maharashtra Rent Act'). The petitioners were directed to hand over the vacant and peaceful possession of the premises as more particularly described in paragraph 1 of judgment i.e.
a. Apartment No.1 admeasuring 510.43 sq.meters (5492.43 sq.ft) built up area on the ground floor of the said property.
b. One covered card park under the shed admeasuring 12.5 sq. meters and open car parking space admeasuring 12.5 sq.meters, both in the front compound of the said property.
c. Right to use the rear area of the said property admeasuring about 82.15 sq. meters for parking vehicles situated at the lower ground level of the said property, which was to be used as a common passage jointly with the owners and/or other occupants of the said property.
d. Joint user of the front garden admeasuring about 173.43 sq. meters in the front compound of the said property, to be used by the Licensee's directors, their immediate family members and invitees jointly with the owners as and when required subject to certain conditions provided in Clause 11 of the said agreement.
e. Residential Apartment No.2 admeasuring about 431.34 sq.meters (4641.33 sq.ft.) built up area on a portion of the 1st floor of the said property.
f. One covered car park under the shed admeasuring about 12.5 sq.meters and one open car parking space admeasuring 12.5 sq.meters, both in the front compound of the said property.
(for short 'suit premises') to the respondents No. 4 & 5. The petitioners were directed to pay the arrears of compensation at the agreed rate of Rs. 1 lac per month for the period from 27/06/2006 to 27/02/2008 and further to pay the damages to the respondents No. 4 & 5 at a double rate of compensation per month from 28/02/2008 till handing over possession of the suit premises to them. Respondents No. 4 & 5 were ordered to return balance amount of security deposit after deducting arrears of compensation and damages to the petitioners at the time of receiving vacant and peaceful possession of the suit premises from the petitioners.
3. The petitioners have also challenged the judgment and order dated 05/03/2010 passed by the Additional Commissioner, Konkan Division, Mumbai (for short 'Commissioner') rejecting the revision application preferred by the petitioners under section 44 of the Maharashtra Rent Act. The Commissioner directed the petitioners to pay forthwith a sum of Rs.26 lacs towards arrears of damages upto 28/02/2010 to the respondents No. 4 & 5 and further directed them to pay to them a sum of Rs.2 lacs per month towards damages in the first week of every month from 28/02/2010 onwards till handing over vacant and peaceful possession of the suit premises. Respondents No. 4 & 5 were directed to refund security deposit of Rs.6 Crores to the petitioners upon their handing over vacant and peaceful possession of the suit premises.
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