JUDGMENT :

1. Heard finally at the admission stage by the parties’ consent.

2. There are two writ petitions: W.P. No.13100 of 2018 and W. P. No.13102 of 2018. They both impugn an interim order passed by the Appellate Bench of the Small Causes Court. To elaborate, the impugned orders stay the operation of the decree secured by the respondent-landlord subject to the writ petitioners’ paying interim compensation.

3. If I go through the details, I note that in 1961 the respondent Trust leased out 435 sq. yards open space to the petitioners in W.P. No.13100 of 2018. The Petitioners could raise a structure and use it for the next 40 years. A formal agreement, it seems, was executed in 1964. Both the Trust and the petitioners-original tenants agreed that the tenants could construct four floors, that is ground-plus-three floors. The initial lease was 40 years, to be renewed one more term: 40 more years.

4. During the lease period, in 1963 the original tenant raised a structure. He constructed five shops on the ground floor and started using three upper floors as lodgings for prospective customers. Similarly, the Trust has leased out the terrace portion of an existing building in the same compound and permitted the original tenant to raise one more floor. That newly to-be-added floor could be used as a residence. Besides that, it has also leased out three garages near the existing building.

5. The lease ended in 2001. Meanwhile, the Trust assigned its leasehold rights to the original respondent, whose legal heirs are now on record. In 2005, the respondent assignee filed RAE & R Suit No.68/120/2005. He sought the tenants’ eviction on the grounds of illegal subletting and change of user. Later, he has also filed RAE Suit No.79/124/2008, about the same property. This time the eviction was sought because the tenant’s sub-lessee has been using the property for illegal and immoral purposes. Eventually, on 30th January 2018, the trial Court decreed both the suits: eviction was ordered.

6. Aggrieved, the original lessees filed four appeals, but they challenged the judgment only in Suit No.79/124/2008. Similarly, the alleged sub-lessee, that is the second defendant, filed Appeal No.160/2018. He, too, challenged only one Judgment, the Judgment in RAE Suit No.68/120/2005.

7. In two appeals, they wanted the appellate Bench of the Small Cause Court to stay the operation of the decree in both the suits. Then, the appellate Bench, through impugned orders, stayed the decree subject to a condition: the tenants, as the appellants, should pay the monthly compensation at the rate determined by the appellate Bench. In this background, the appellants filed two writ petitions—WP No.1300 and 1301 of 2018—against the orders in the two appeals: Appeal No.160/2018 and 161/2018.

Submissions:

Petitioners:

8. Shri Godbole, the learned counsel for the petitioners in both the writ petitions, has submitted that the Trust itself was a lessee; it is not the owner. It has, thus, subleased the property to the petitioners. Drawing my attention to the lease agreement, Shri Godbole has argued that what was given to the petitioners was a piece of open land, upon which, by expending huge amounts, the original tenant raised superstructures. Therefore, considering the nature of the property leased out, the appellate Bench ought to have determined the compensation. Plainly put, the interim compensation must have been on the vacant land, but not on the structures the original tenant has raised.

9. Shri Godbole has emphasised the case holding of Atma Ram Properties (P) Ltd., v. Federal Motors (P) Ltd. (2005) 1 SCC 705), and submitted that whatever structure the original tenant has raised would amount to an improvement on the leased property by the tenant. And, while determining compensation, the courts must exclude those improvements from the reckoning. Finally, he has submitted that the appellate Bench has considered even the staircase, passage, actual carpet area, and so on, which is imperm