Masroor Ahmad Khan vs The State Of Uttarakhand

CIVIL APPEAL Nos.11761­11762 OF 2018 (Arising out of S.L.P.(C) Nos. 25218­25219 of 2018)

Masroor Ahmad Khan ….Appellant(s)

VERSUS

State of Uttarakhand & Ors. ….Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1. Leave granted.

2. These appeals are filed against the final

judgment and order dated 28.08.2018 in Special

Appeal No.25 of 2015 and order dated 07.09.2018

Signature Not Verified in Review Application MCC No.1193 of 2018 in Digitally signed by ANITA MALHOTRA

Special Appeal No.25 of 2015 passed by the High Date: 2018.12.03 17:00:27 IST Reason:

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Court of Uttarakhand at Nainital whereby the High

Court dismissed the special appeal and the Review

Application filed by the appellant herein.

3. In order to appreciate the short controversy

involved in these appeals, few facts need to be

mentioned hereinbelow.

4. Respondent Nos.3 and 4 are the Nagar Palika

Parishad, Nainital (hereinafter referred to as “the

Nagar Palika”). In 1990, the Nagar Palika issued an

advertisement to auction their residential quarter

Nos.6 and 7 situated at Waverly Compound (Gopala

Sadan) Mallital, Naintal. So far as this case is

concerned, it relates to quarter No. 6.

5. The appellant herein claimed to be one of the

participants in the auction proceedings and also the

highest bidder. The appellant claimed that he

occupied quarter No.6 and started living therein

since June 1990. The appellant complained that in

2 the year 2001 (18.07.2001), the Nagar Palika

instead of executing the sale deed in his favour in

relation to quarter No.6, passed a resolution to sell

quarter No.6 along with other quarters in public

auction.

6. The appellant, therefore, filed an application

under Section 35 of the Municipalities Act praying

therein for a direction to the Nagar Palika for

execution of the sale deed in his favour in relation

to quarter No.6.

7. By order dated 21.07.2006, the Commissioner,

Nainital passed an order directing Nagar Palika to

execute the sale deed in favour of the appellant. He

also fixed the rate at which the sale deed was to be

executed followed by another order to that effect.

8. The Nagar Palika felt aggrieved and filed

application/appeal to the State (respondent No.1).

By order dated 12.03.2007, the State set aside the

3 order of the Commissioner dated 21.07.2006 which

gave rise to filing of the writ petition by the

appellant in the High Court at Nainital. By

impugned order, the High Court dismissed the writ

petition and also the review application filed by the

appellant herein, giving rise to filing of the present

appeals by way of special leave in this Court.

9. The short question, which arises for

consideration, in this case is whether the High

Court was justified in dismissing the special appeal

filed by the appellant.

10. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

find no merit in these appeals.

11. In our opinion, the possession of the appellant

since inception, i.e., since June 1990 in quarter

No.6 was unauthorized and was that of a

trespasser. This we say for more than one reason.

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12. First, there was no allotment letter issued by

Nagar Palika in relation to quarter No.6 to the

appellant in the so­called auction proceedings held

in 1990; Second, the appellant also failed to file any

such allotment letter nor could file any acceptance

letter of Nagar Palika indicating acceptance of his

so­called highest bid; Third, the appellant also failed

to show as to how much amount he actually paid to

the Nagar Palika towards the sale/auction price for

quarter No. 6 and, if so, when; Fourth, there was no

privity of contract between the appellant and the

Nagar Palika which could justify appellant’s entry in

quarter No. 6 as being legal and lastly, in the

absence of any document of title or/and legal

document executed by the Nagar Palika in

appellant's favour in relation to quarter No.6 before

the appellant entering in quarter No.6 in June

5 1990, the appellant’s possession cannot be held

legal.

13. It is a settled principle of law that in order to

prove that the possession of any person in any

immovable property is legal, it is necessary for such

person to prove prima facie that he is either the

owner of such property or is in possession as a

lawful tenant or is in its permissive possession with

the express consent of its true owner. Such is not

the case here.

14. The appellant has not taken any such plea

and even if he claims to have taken, then also, in

our view, he has failed to prove such plea for want

of any evidence.

15. We have also perused the documents filed by

the appellant in that behalf. Having perused, we are

of the view that these documents are of no help to

him to prove his ownership or/and possession in

6 quarter No.6. These documents are not the

documents of title, nor do they prove appellants

legal possession over quarter No.6 and nor do these

documents in any way bind the Nagar Palika.

16. It is for all these reasons, we are of the opinion

that the appellant was in possession of quarter No.6

as a trespasser since June 1990 and, therefore, he

was liable to be evicted from the said quarter by the

Nagar Palika. Not only that the appellant has also

rendered himself liable to pay damages for wrongful

use and occupation of quarter No.6 since June

1990(see page E) to the Nagar Palika till he vacates

the quarter No.6.

17. In order to decide the quantum of damages, we

do not consider proper to remand the case to the

competent authority under The Public Premises

(Eviction of Unauthorised Occupants) Act, 1971.

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18. We, therefore, enquired from the lawyers

representing the parties as to what is the

approximate area of quarter No. 6 and what would

be its monthly rent that it could fetch in the market

during the period in question.

19. Having heard their views, we have formed an

opinion that the appellant should be made liable to

pay Rs.3000/­ per month to the Nagar Palika by

way of damages for the use and occupation of

quarter No. 6 from June 1990 till he handovers its

vacant possession. The sum which we have fixed

balances the rights and equities between the

parties.

20. The appellant is granted three months’ time to

vacate quarter No. 6 situated at Waverly Compound

(Gopala Sadan) from the date of this order. The

appellant is further directed to pay to the Nagar

Palika (respondent No.3 herein) the damages for use

8 and occupation of the quarter No.6 from June 1990

(the month when he occupied the quarter) till the

date he vacates the quarter in terms of this order

within three months.

21. The damages be calculated at the rate of

Rs.3000/­ per month from June 1990 till the

delivery of possession.

22. In case the appellant fails to vacate the quarter

and fails to pay the damages, it would be construed

as non­compliance of this Court's order and in that

eventuality the Nagar Palika would be at liberty to

move to this Court against the appellant for

appropriate order.

24. The appeal stands accordingly finally disposed of.

………...................................J. [ABHAY MANOHAR SAPRE]

…...……..................................J. [INDU MALHOTRA] New Delhi;

December 03, 2018

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