COLABA CENTRAL CO-OP. CONSUMER WHOLESALE AND RETAIL STORES LTD Vs. STATE OF MAHARASHTRA, THROUGH ITS GOVERNMENT

JUDGEMENT

(1.) HEARD Mr. A.S. Oka, learned counsel for petitioner and Mr. S.M. Dixit, learned A Panel Counsel for respondent No.1.

(2.) MR . Oka, learned counsel for petitioner at the outset submitted that petitioner is not desirous of pressing the challenge to the order of eviction passed by the competent authority on 11.2.94 and affirmed in appeal by the appellate authority vide order dated 18.1.95 as the petitioner intends to take up the matter to the State Government for renewal of lease. He however, submits that time upto 31st December, 2004 may be granted to the petitioner to vacate the public premises in question if the Government decides to not to renew the petitioners lease or to grant fresh lease in favour of petitioner in respect of public premises in question. As regards the order passed by the competent authority for recovery of damages amounting to Rs.3,21,43,976/- upto 28.2.1994 and further compensation at the rate of Rs.5,32,850/- per month for the subsequent period till the premises are vacated by the petitioner and the order of appellate authority in respect of recovery of damages, the learned counsel for petitioner submits that such order is in violation of the procedure contemplated under sub-section (2) of section 5 of the Bombay Government Premises (Eviction) Act, 1955. The learned counsel for petitioner also submitted that in petitioners favour lease was subsisting upto 31st May, 1990 and therefore, the amount of compensation determined by competent authority under section 5(2) of the Act of 1955 from 1.6.85 is patently illegal.

(3.) IN view of the submissions made by learned counsel for parties, we are satisfied that no case for interference is made out in the impugned orders to the extent the order of eviction has been passed against the present petitioner. However, in view of the fact that petitioner is co-operative wholesaler and retailer store which is operating one of its branches from the public premises in question since 1966 and supplying essential commodities and other consumer goods at reasonable prices with no profit earning motive and 250 employees are employed in this branch, we are satisfied that petitioner may be granted time upto 31st December, 2004 for vacation of public premises in question in case the State Government does not renew the lease in petitioners favour or does not grant fresh lease in respect of premises in question in petitioners favour. As regards the damages, it is clear that the competent authority has not followed the procedure prescribed under sub-section (2) of section 5 and the principles of assessment of damages. Further, damages have been awarded from 12.6.85 while the fact is that petitioner was in authorised occupation upto 31st May, 1990 and was not liable to pay damages under section 5(2) as unauthorised occupant till that date. In our considered view, the order regarding recovery of damages passed by the competent authority as well as the appellate authority deserves to be set aside and the matter needs to be restored to the file of the competent authority for fresh assessment of damages. We record here the statement of the learned counsel for the petitioner that from 1st June, 1988, the petitioner has been paying an amount of Rs.55,000/- per month for use and occupation of the public premises in question. Hence the order: