Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
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
in Review Application MCC No.1193 of 2018 in
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2018.12.03
17:00:27 IST
Reason:
Special Appeal No.25 of 2015 passed by the High
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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
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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
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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
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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
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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
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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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