Fazal Mohammad vs Mukhya Nagar Adhikari and Others

Alok Singh, J.�Counter affidavit on behalf of respondent No. 1 is handed over today in the Court, which is taken on record. Present petition is filed assailing the order dated 29/30.08.2013 (Annexure No. 7 to the writ petition) whereby respondent No. 1/Mukhya Nagar Adhikari directed the Kotwali Incharge, Gangnahar, Roorkee to deliver the possession of House No. 1153, Ram Nagar, Roorkee to Anju Rani, wife of Harish Kumar and (sic)ds kept in the house should be given in the possession of Kalim, son of Iliyas.

The main grievance of the petitioner is that petitioner is in possession of property, in question and Mukhya Nagar Adhikari has absolutely no jurisdiction under any provision of law to take possession from the petitioner and to handover the same to Ms. Anju Rani.

Learned counsel for the respondent No. 1 submits that since an application was moved by Ms. Anju Rani before Mukhya Nagar Adhikari claiming her right over the property, in question, therefore, an inquiry was held and after inquiry, it was found that Anju Rani was the owner of property, therefore, Mukhya Nagar Adhikari passed the order impugned, herein, so that Anju Rani may not suffer adversely and justice may be done with Anju Rani.

On being asked repeatedly, Mr. Manish Arora, learned counsel for respondent No. 1, could not show any provision of law wherein Mukhya Nagar Adhikari is competent to hold an inquiry about title and entitlement of any immovable property and to pass order for delivery of possession.

Undisputedly, house, in question, is not a municipal property but is a private property and in my considered opinion, question of title and possession of immovable property between two individuals can be adjudicated by competent civil court. In my further opinion, Municipality or Mukhya Nagar Adhikari has absolutely no jurisdiction under any provision of law to hold an inquiry pertaining to title and possession of a private property and to pass order regarding title and delivery of possession of a private property. Therefore, order impugned is ipso facto without jurisdiction.

If an Authority does not have any jurisdiction and passes an illegal order, order must be treated outcome of malice. In that event, exemplary cost must be awarded to be paid by the officer concern. It seems that Mukhya Nagar Adhikari has unnecessary intervened in private dispute between two individuals. Therefore, present petition is allowed. Impugned order dated 29.08.2013 is hereby quashed. Exemplary cost of Rs. 50,000/- is imposed against respondent No. 1/Mukhya Nagar Adhikari, who has compelled the petitioner to approach this Court challenging impugned order. Out of Rs. 50,000/-, Rs. 25000/- shall be paid to the petitioner and Rs. 25,000/- shall be paid to Uttarakhand State Legal Service Authority, Nainital within fifteen days. Cost, so imposed, shall be paid by the Mukhya Nagar Adhikari personally and shall not be paid from the funds of Nagar Palika.