Lilai'ali Baj

Tk Stole ef

llomba;

Sin.ha J~

March 7.

SUPREME COURT REPORTS

the order impugned.

Hence in the instant case there is no need to apply the rule of conclusive proof as laid dmrn in sub-s.(2) of s. 13.

In any event, as the concluding words of the section have provided, any irregularity or failure to comply with the requirements of the section cannot "affect the validity of the order".

As all the g, rounds urged in support of the petitions fail, they are dismissed with costs, one set.

Petitions dismissed.

SOHANLAL

THE UNION OF INDIA

( BHAGWATI, jAGANNADHADAs, ]AFER IMAM, Gov1NDA

MENON and J. L. KAPUR JJ.)

Jl'rit f mandamus-Disputed qulstions of fact and !aw- Disf,11!e rrgarding tit/e-T11hether ronrf£1' by U!~Y of writ approj1riate -l1.litt! writ can issue to private iu_dividual-~S'tate illegally evicting jJtrso11 fronl house-.A1wther person takzug possession bona fide u:ithout !:11ou1/edge qf illegal eviction-r11hether ivrit can t"ssue against such j; enon-Consti!ution f India, Art. 226 . .J, a displaced person, "'as.found /1ri1nafacie entitled to allotment of~. house and the Accomn1odtion Officer moved his family into the house on I\1ay 10, 1952, but no letter of allotment ,\as issued to him.

Later, ,\hen certain facts became knc\vn which in tht" opinion of the Union of India disentitlcd J to the allotment, he "as informf'"<l that the house could not be allotted to him.

J \vas c, icted fr01n the house on September 27, 1952, ,...,.ithout being gi, en 1 s days notice as reqnircd hy s. 3 of the Public Premise-; Eviction Act (XXVII of i950). fhe house \Vas then allotted to S and he \\as given possession on October 3, 1952. J filed a petition under Art. 226 of the Constitution in the High Court. The High Court ordered the Union of India and also S to restore possession of the house to J. S appealed.

He!d, that the High Court erred in issuing the writ of

.111a1; da1nus.

There ,\as a secious dispute on questions of fact bet\veen the paTties and also 'vhether J had acquired any title to the property in dispute.

Proceedings by \vay of a \\Tit \\'ere not approp1iate in ;"J. case \\here the decision of the Cou;:t \Yould amount to a decree declaring a party's title and ordering restoration of poss:!ssl.nn. The proper remedy in such a case is by \\'ay 'of a title suit in 'A Civil (:011rt.

The alternati\-e remdy of obtaining relief by a

~...,,.., \Vrit of nzandarnus or an oider in the nature of 1nandamur could 1955

J only be had if the facts we; c not in dispute and the title to the . property in dispute was clear.

Solian Lalv. .

L\s the eviction of J was illegal on account of the fai.lure to TM Union. of lfulia give him notice under s. 3 of the Public Pren1ises Eviction Act a \Vrit of 1nanda1nus might have issued to the Union if the property had still been in its possession.

But no such \'vTit could issue to S as, normally, it does not issue to a private individual.

If it had been proved that the Union and S had colluded, and the transC action betvveen them vvas merely colourable, entered into \Vith a view to deprive J of his rights, jurisdiction to issue the \Yr.it might

be said to exist in the Court. The \Vrit ho\\'CVer could not issue to S 'vho had, apparently, entered into bona fide pOssession Of the house without knowledge that J had been illegally evicted

~"'I therefrom.

R. v. Chester Co1poration (1855) 25 LJ.Q.B. 6r, applied.

CIVIL APPELLATE JURISDICTION: Civil Appeal NO• 132 of 1954

Appeal by special leave from the judgment and order dated April 30, I 953, of the Circuit Bench of the Punjab High Court at Delhi in Civil Writ Application No. 3I4 of I952.

Ram Lal Anand and S. N. Anand, for the appellant.

R. Ganpathy Iyer and R. H. Dhebar, for respondent

~,. - No. 1.

A. N. Grover and K. L. Mehta, for the respondent No. 2.

I957 March 7. The Judgment of the Court was delivered by IMAM ].-The respondent Jagan Nath filed a petition under Art. 226 of the Constitution in the Punjab High Court which was allowed.

The High Court ordered the re.-.pondent The Union of India and the appellant Sohan Lal to forthwith restore possession of house No. 35 situated in \'Vest Patel Nagar, Delhi to ~- Jagan Nath.

Against this order of the High Court the ' appellant applied for and obtained special leave to appeal to this Court.

}Q.gau Nath is a displaced person ad a refugee fom Pakistan. The Government of India had devised various s<; hemes for the rehabilitation of refugees. One

1957 of these was a scheme for sale of certain houses con-

Sohan Lal structed by the Government of India for refugees in v, West Patel Nagar.

It was not intended under the Unfon of India J • j' fj d' J d _ sc 1eme to entertam app 1cat10ns rom 1sp ace persons

Imam J. who had already been allotted agricultural land in East Punjab.

A limited number of houses known as "box-type tenements" were constructed.

According to the procedure prescribed in order to give effect to the scheme, only those displaced persons, who were registered before the 15th of August, 1948, and were gainfully employed, were eligible for allotment of a house.

A displaced person wishing to apply for allotment of a house was required to submit an application in the prescribed form offering to purchase a house in West Patel Nagar. If the applicant was prima facie eligible, he could be instructed to deposit the sale price of the house in the treasury, his eligibility to be verified later on.

Permission to deposit the sale price did not mean that his eligibility had been accepted.

After payment of the sale price the applicant could be required to produce proof of his eligibility.

A list would be prepared of all the applicants who had deposited the sale price and whose eligibility had been verified. If the number of the applicants was in excess of the available number of houses, those, whose treasury challans bore a later date, would be excluded and their money refunded.

The applicants whose names were included in the final list would be required to pay the ground rent by a specified date.

A particular house would be allotted to an applicant by drawing lots.

Jagan Nath had got himself registered as a refugee on December 31,

1947.

He had made his application in the prescribed form.

He had deposited the sum of Rs. 5,600 as the sale price after his prima facie eligibility had been accepted.

He had also deposited the ground rent for the plot on which the house had been built, having been informed previously that it had been decided to allot him a two-roomed enclosed verandah "box-type" house in \\'est Patel Nagar.

He was informed that the allotment of a particular house whould be decided by drawing lots at site on February 15, 1952, at 3 p.m.

As the result of the drawing of lots, house No. 35, the

property in dispute in this appeal, fell to his lot. 1957 According to Jagan Nath, on May 10, 1952, the Aecom- Sa/ran Lal modation Officer in his absence removed the members Tiu u . v. {Ii d' of his family along with his entire belongings to the no n "' house in dispute in a truck and he and his family thus Imam]. entered into possession of the house in dispute. Jagan Nath, however, was evicted from the house in dispute on September 27, 1952, by virtue of a warrant of eviction dated September 11, 1952, purporting to have been issued under s. 25 of Ordinance III of 1952.

After his eviction, possession of the house in dispute was given to the appellant on October 3, 1952. The appellant, who is also a displaced person, had applied on February 27, 1952, for allotment of a house in West Patel Nagar. He had made the deposit of Rs. 5,600 as sale price and had apparently complied with all the necessary conditions for allotment of a house to him and the house in dispute was allotted to him on July 31, 1952. The appellant has been in possession of the disputed house since October 3, 1952.

The appellant's main contention has been that, having regard to the circumstances of the case, the High Court erred in making the order it 'did which presumably purported to be in the nature of a writ of mandamus.

There was a serious dispute on quc5tions of fact between the parties and also whether .J agan Nath had acquired in law any title to the property in dispute.

Proceedings by way of a writ were not appropriate in a case where the decision of the Court would amount to a decree declaring Jagan Nath's title and ordering restoration of possession.

The proper remedy open to Jagan Nath was to get his title declared in the ordinary way in a Civil Court.

The alternative remedy of obtaining relief by a writ of mandamus or an order in the nature of mandamus could only be had if the facts were not in dispute and .Jagan Nath's title to the property in dispute was clear.

It was further contended on behalf of the appel-. lant that a writ of mandamus or an order in the nature of mandamus could not be made against the appc:llant, a private individual.

He had come into awful possession and there was no evidence of collusion

The

1957 between him and the Union of India and there was no

Soh'n Loi finding by the High Court that the appellant had acted '"· in collusion with the Union of India as a result of Union of India which Jagan Nath was dispossessed of the propeny in

Imam J. dispute and the same was allotted to him.

On behalf of Jagan Nath, it was urged that when he entered into possession of the property in dispute he did not do so as a trespasser.

He had been inducted on the property by the Accommodation Officer. He could not have been illegally evicted. S. 3 of the Public Premises (Eviction) Act, 1950 (Act No. XXVII of 1950), required a notice to be served upon him directing him to vacate the premises within 15 days from the date of the service of the notice upon him before he could be evicted.

This was not done and he had been evicted without complying with the mandatory provisions of s.3 of the said Act.

His eviction was a high-handed act of the Government without any legal justification whatsoever.

The' Union of India which had illegally evicted him should be ordered to restore possession of the property in dispute to him and as the eviction was at the instance of the appellant, he should also be directed to restore possession of the said property to Jagan Nath.

Reliance was placed upon certain decisions of the High Courts of Punjab in K/zuslzal Singh v. Shri Rameshwar Dayal, Deputy Commissioner, Delhi('), Hyderabad in G. Kistareddy v. Commr. f City Police, Hyderabad(') and Pepsu in lv!ohinder Singh v. State ef Pepsu('), as well as certain observations in the judgment of this Court in the case of TVazir Chand v. The State of Himachal Pradesh(') in support of the proposition that, as Jagan Nath was in possession and he had been illegally evicted, he was entitled to have property, from which he had been illegally evicted, restored to him.

vVe do not propose to enquire into the merits of. the rival claims of title to the property in dispute set up by the appellant and Jagan Nath. Ifwe were to do so, we would be entering into a field of investigation which is more appropriate for a Civil Court in a properly constituted suit to do rather than for a Court exercising

(1) I. L. R. [1954] Punjab211.

(2) A. I. R. [1952] Hydt:rabad 36.

(3) A. I. R. [1955] Pcpsu 60.

(4) [1955] I s. c. R. 4o8.

the prerogative of issuing writs. There are questions 1957 of fact and law which are in dispute requiring determi- Sohan Lal nation before the respective claims of the parties to . v. ,__,. l 1 b d "d d B r h • The Union of inura t 11s appea can e ec1 e . e10re t e property m _ dispute can be restored to Jagan Nath it will be neces- Imam]. sary to declare that he had title in that property and was entitled to recover possession of it.

This would in effect amount to passing a decree in hi~ favour.

In the circumstances to be mentioned hereaher, it is a matter for serious consideration whether in proceedings under Art. 226 of the Constitution such a declaration ought to be made and restoration' of the property to Jagan Nath be ordered.

Jagan Nath had entered into a transaction with the Union of India upto a certain stage with respect to the property in dispute, but no letter of allotment had been issued him.

Indeed, he had been informed, when certain facts became known, that the property in question could not be allotted to him as he was a displaced person who had been allotted land in East Punjab.

As between Jagan Nath and the Union of India it will be necessary to decide what rights were acquired by the former in the property upto the stage when the latter informed Jagan Nath that the property would not be allotted to him.

Another question for decision will be whether Jagan Nath was allowed to enter into posses<ion of the property because it was allotted to him or under a misapprehension as the Union of India was misled by the contents of his application.

The case of the Union of India is that under the scheme Jagan Nath was not eligible for allotment of a house in West Patel Nagar, as it was subsequently discovered that he had been allotted, previous to his application, agrkultural land in the District of Hissar. Being satisfied that Jagan Nath was not eligible for allotment, the Union of India refused to allot to him the tenement No. 35, VVest Patel Nagar and allotment of that house was made to the appellant who was found to be eligible in every way. The appellant was accordingly given possession of the property after Jagan Nath's eviction. The appellant had complied with all the conditions imposed by

l957 the Union of India and a letter of allotment was

So/ran Lal actually issued to him and he entered into possession

T '- ,; .v. if in11 of the property in dispute under the authority of the

, e unwn o

10 U . f I d.

D"d h - mon o n ia. 1 t e appellant thereby acquire a Imam]. legal right to hold the property as against Jagan Nath?

In our opinion, all these questions should be decided in a properly constituted suit in a Civil Court rather than in proceedings under Art. 226 of the Constitution.

The eviction of Jagan Nath was in contravention of the express provisions of s. 3 of the Public Premises

(Eviction) Act. His eviction, therefore, was illegal. He was entitled to be evicted in due course of law and a writ of mandamus could issue to or an order in the nature of mandamus could be made against the Union of India to restore possession of the property to J agan Nath from.which he had been evicted the property was still in the possession of the Union of India. The property in dispute, however, is in possession of the appellant. There is no evidence and no finding of the High Court that the appellant was in collusion with the Union of India or that he had knowledge that the eviction of Jagan Nath was illegal.

Normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual.

Such an order is made against a person directing him to do some particular thing, specified in the order, which appertains to his office and is in the nature of a public duty (Halsbury's Laws of England Vol. 11, Lord Simonds Edition, p. 84). If it had been proved that the Union of India and the appellant had colluded, and the transaction between them was merely colourable, entered into with a view to deprive Jagan Nath of his rights, jurisdiction to issue a writ to or make an "order in the nature of mandamus against the appellant might be said to exist in a Court.

We have not been able to find a direct authority to cover a case like the one before us, but it would appear that so far as election to an office is concerned, a mandamus to restore, admit, or elect to an office will not be granted unless the office is vacant. If the office is in fact full, proceedings must be taken by way of injunction or election petition to oust the party in

possession and that a mandamus will go only on the 19.57 supposition that there is nobody holding the office in Sohan Lal question.

In R. v. Chester Corporation(') it was held ... ._ " . v. if •-J h • • • fl "bl 1 f 1 h h , ne vnwn o ""''o t at It IS an m exi e ru e o aw t at w ere a person - has been de facto elected to a corporate office, and has Imam]. accepted and acted in the office, the validity of the election and the title to the office can only be tried by proceeding on a quo warranto information.

A mandamus will not lie unless the election can be shown to be merely colourable. We cannot see why in principle there should be a distinction inade between such a case and the case of a person, who has, apparently, entered into bona fide possession of a property without knowledge that any person had been illegally evicted therefrom.

In our opinion, the High Court erred in allowing. the application of Jagan Nath filed under Art. 226 of the Constitution and making the order it did. The appeal is accordingly allowed and the order of the High Court is set aside.

In the circumstances of the present case, however, we are of the opinion that each party should bear his own costs in this Court and in the High Court.

Appeal allowed.

THE STATE OF BOMBAY

SALAT PRAGJI KARAMSI

(BHAGWATI, ]AGANNADHADAS, jAFER IMAM, GOVINDA MENON and ]. L. KAPUR JJ.)

Application f Laws-Law of one St11te made applicable t1 another State-When comes into force-Adaptations-Words "shall be construed as"-Meaning ef-Br•mbay Prevention ef Gambling Act (Born. IV of 1887), s. I-Kutch (Application of Laws) Order, 1949

By cl. 3 of the Kutch (Application of Laws) Order, 1949 the Bom?ay Prevention of Gambling Act (Born. IV of 1887) was ade applicable to Kutch.

Clause 4 of the Order provided that the Acts applied to Kutch by the Order "shall be construed" as if

(1) [1855] 25 L.J. Q. B. 6J (Regina v. Chester, Mayor, etc.)

Marth 1.