Supreme Court of India
MASROOR AHMAD KHAN versus STATE OF UTTARAKHAND & ORS. on 3 December 2018
980 SUPREME COURT REPORTS [2018] 14 S.C.R.[2018] 14 S.C.R. 980
[2018] 14 S.C.R. 980
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MASROOR AHMAD KHAN
v.
STATE OF UTTARAKHAND & ORS.
(Civil Appeal Nos. 11761-11762 of 2018)
DECEMBER 03, 2018
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[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]
Municipalities: Auction of residential quarters of NagarPalika– Appellants claimed to be one of the participants in theauction proceedings and was also highest bidder – Claim ofappellant that he occupied quarter no.6 and started living thereinCsince June 1990 – Appellant complained that in 2001, Nagar Palikainstead of executing sale deed in his favour in relation to quarterno.6 passed a resolution to sell quarter no.6 along with otherquarters in public auction – Application by appellant under s.35 ofMunicipalities Act praying for direction to Nagar Palika to executeDsale deed in his favour in relation to quarter no.6 – Commissionerdirected Nagar Palika to execute sale deed in favour of appellant– State allowed the appeal filed by Nagar Palika – Aggrievedappellant filed writ petition before High Court – High Courtdismissed writ petition – On appeal, held: There was no allotmentletter issued by Nagar Palika in relation to quarter No.6 in favourEof appellant in the so-called auction proceedings held in 1990 –Appellant failed to show that he actually paid any amount to theNagar Palika towards the sale/auction price for quarter no.6 –Moreover, there was no privity of contract between the appellantand the Nagar Palika which could justify appellant’s entry in quarterFno.6 as being legal – Therefore, the possession of the appellantsince inception, i.e., since June 1990 in quarter No.6 wasunauthorized and was that of a trespasser – Appellant is directed tovacate quarter no.6 within 3 months and pay Rs.3000/- per monthto the Nagar Palika by way of damages for the use and occupationof quarter No. 6 from June 1990.
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Disposing of the appeals, the Court
HELD: 1. The possession of the appellant since inception,i.e., since June 1990 in quarter No.6 was unauthorized and wasthat of a trespasser. There was no allotment letter issued byNagar Palika in relation to quarter No.6 to the appellant in theHso-called auction proceedings held in 1990. The appellant also
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failed to file any such allotment letter nor could file any acceptanceletter of Nagar Palika indicating acceptance of his so-calledhighest bid. The appellant also failed to show as to how muchamount he actually paid to the Nagar Palika towards the sale/auction price for quarter No. 6 and, if so, when. In the absence ofany document of title or/and legal document executed by the NagarPalika in appellant’s favour in relation to quarter No.6 before theappellant entering in quarter No.6 in June 1990, the appellant’spossession cannot be held legal. [Paras 11, 12][983-A-D]
2. It is a settled principle of law that in order to prove thatthe possession of any person in any immovable property is legal,it is necessary for such person to prove prima facie that he iseither the owner of such property or is in possession as a lawfultenant or is in its permissive possession with the express consentof its true owner. Such was not the case here. The appellant wasin possession of quarter No.6 as a trespasser since June 1990and, therefore, he was liable to be evicted from the said quarterby the Nagar Palika. Not only that the appellant has also renderedhimself liable to pay damages for wrongful use and occupation ofquarter No.6 since June 1990 to the Nagar Palika till he vacatesthe quarter No.6. [Paras 13, 14, 16][983-D-H]
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 11761-11762 of 2018.
From the Judgment and Order dated 28.08.2018 of the High Courtof Uttarakhand at Nainital in Special Appeal No. 25 of 2015 and dated07.09.2018 in MCC No. 1193 of 2018.
K. K. Tyagi, Iftekhar Ahmad, Anoop Kumar and Sarvam RitamKhare, Advs. for the Appellant.
Manish Kumar, Piyush Kaushik and Ms. Divya Roy, Advs. forthe Respondents.
The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J.
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1. Leave granted.
2. These appeals are filed against the final judgment and orderdated 28.08.2018 in Special Appeal No.25 of 2015 and order dated07.09.2018 in Review Application MCC No.1193 of 2018 in SpecialAppeal No.25 of 2015 passed by the High Court of Uttarakhand at AB
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982 SUPREME COURT REPORTS [2018] 14 S.C.R.
ANainital whereby the High Court dismissed the special appeal and theReview Application filed by the appellant herein.
3. In order to appreciate the short controversy involved in theseappeals, few facts need to be mentioned hereinbelow.
4. Respondent Nos.3 and 4 are the Nagar Palika Parishad, NainitalB(hereinafter referred to as “the Nagar Palika”). In 1990, the NagarPalika issued an advertisement to auction their residential quarter Nos.6and 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 theCauction proceedings and also the highest bidder. The appellant claimedthat he occupied quarter No.6 and started living therein since June 1990.The appellant complained that in the year 2001 (18.07.2001), the NagarPalika instead of executing the sale deed in his favour in relation toquarter No.6, passed a resolution to sell quarter No.6 along with otherDquarters in public auction.
6. The appellant, therefore, filed an application under Section 35of the Municipalities Act praying therein for a direction to the NagarPalika for execution of the sale deed in his favour in relation to quarterNo.6.
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7. By order dated 21.07.2006, the Commissioner, Nainital passedan order directing Nagar Palika to execute the sale deed in favour of theappellant. He also fixed the rate at which the sale deed was to be executedfollowed by another order to that effect.
8. The Nagar Palika felt aggrieved and filed application/appeal toFthe State (respondent No.1). By order dated 12.03.2007, the State setaside the order of the Commissioner dated 21.07.2006 which gave riseto 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 alsothe review application filed by the appellant herein, giving rise to filing ofthe present appeals by way of special leave in this Court.G
9. The short question, which arises for consideration, in this caseis whether the High Court was justified in dismissing the special appealfiled by the appellant.
10. Having heard the learned counsel for the parties and on perusalHof 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 atrespasser. This we say for more than one reason.
12. First, there was no allotment letter issued by Nagar Palika inrelation to quarter No.6 to the appellant in the so-called auctionproceedings held in 1990; Second, the appellant also failed to file anysuch allotment letter nor could file any acceptance letter of Nagar Palikaindicating acceptance of his so-called highest bid; Third, the appellantalso failed to show as to how much amount he actually paid to the NagarPalika towards the sale/auction price for quarter No. 6 and, if so, when;Fourth, there was no privity of contract between the appellant and theNagar Palika which could justify appellant’s entry in quarter No. 6 asbeing legal and lastly, in the absence of any document of title or/andlegal document executed by the Nagar Palika in appellant’s favour inrelation to quarter No.6 before the appellant entering in quarter No.6 inJune 1990, the appellant’s possession cannot be held legal.
13. It is a settled principle of law that in order to prove that thepossession of any person in any immovable property is legal, it is necessaryfor such person to prove prima facie that he is either the owner of suchproperty or is in possession as a lawful tenant or is in its permissivepossession with the express consent of its true owner. Such is not thecase here.
14. The appellant has not taken any such plea and even if heclaims to have taken, then also, in our view, he has failed to prove suchplea for want of any evidence.
15. We have also perused the documents filed by the appellant inthat behalf. Having perused, we are of the view that these documentsare of no help to him to prove his ownership or/and possession in quarterNo.6. These documents are not the documents of title, nor do they proveappellants legal possession over quarter No.6 and nor do these documentsin any way bind the Nagar Palika.
16. It is for all these reasons, we are of the opinion that the appellantwas 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 NagarPalika. Not only that the appellant has also rendered himself liable topay damages for wrongful use and occupation of quarter No.6 sinceJune 1990(see page E) to the Nagar Palika till he vacates the quarterNo.6.
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984 SUPREME COURT REPORTS [2018] 14 S.C.R.
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17. In order to decide the quantum of damages, we do not considerproper to remand the case to the competent authority under The PublicPremises (Eviction of Unauthorised Occupants) Act, 1971.
18. We, therefore, enquired from the lawyers representing theparties as to what is the approximate area of quarter No. 6 and whatBwould be its monthly rent that it could fetch in the market during theperiod in question.
19. Having heard their views, we have formed an opinion that theappellant should be made liable to pay Rs.3000/- per month to the NagarPalika by way of damages for the use and occupation of quarter No. 6Cfrom June 1990 till he handovers its vacant possession. The sum whichwe have fixed balances the rights and equities between the parties.
20. The appellant is granted three months’ time to vacate quarterNo. 6 situated at Waverly Compound (Gopala Sadan) from the date ofthis order. The appellant is further directed to pay to the Nagar PalikaD(respondent No.3 herein) the damages for use and occupation of thequarter 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 threemonths.
21. The damages be calculated at the rate of Rs.3000/- per monthEfrom June 1990 till the delivery of possession.
22. In case the appellant fails to vacate the quarter and fails topay the damages, it would be construed as non-compliance of this Court’sorder and in that eventuality the Nagar Palika would be at liberty tomove to this Court against the appellant for appropriate order.
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24. The appeal stands accordingly finally disposed of.
Devika Gujral
Appeals disposed of.
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