# Lilai'ali Baj v. Tk Stole ef llomba; Sin.ha J~

- **Citation:** [1957] 1 S.C.R. 738
- **Court:** Supreme Court of India
- **Decided:** 1957
- **Bench:** Bhagwati, jAGANNADHADAs, ]Afer Imam, Gov1NDA MENON, J. L. Kapur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lilai-ali-baj-v-tk-stole-ef-llomba-sin-ha-j-1369
- **Pages:** 8

## Headnote

Jl'rit
~f mandamus-Disputed qulstions of
fact and !awDisf,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 Accomn1od~tion 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 rem~dy of obtaining relief by a
S.C.R.
SUPREME COURT REPORTS
739
~...,,.., \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.

## Text

1957
Lilai'ali Baj
v.
Tk Stole ef
llomba;
Sin.ha J~
1957
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
v.
THE UNION OF INDIA
( BHAGWATI, jAGANNADHADAs, ]AFER IMAM, Gov1NDA
MENON and J. L. KAPUR JJ.)
Jl'rit
~f mandamus-Disputed qulstions of
fact and !awDisf,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 Accomn1od~tion 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 rem~dy of obtaining relief by a
S.C.R.
SUPREME COURT REPORTS
739
~...,,.., \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 a~d a refugee f~om
Pakistan. The Government of India had devised
·various s<;hemes for the rehabilitation of refugees. One
'
SUPREME COURT REPORTS
[1957J
1957
of these was a scheme for sale of certain houses conSohan 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
S.C.R.
SUPREME COURT REPORTS
741
property in dispute in this appeal, fell to his
lot.
1957
According to Jagan Nath, on May 10, 1952, the AecomSa/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
n~o 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
742
SUPREME COURT REPORTS
[ 1957]
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.
S.C.R.
SUPREME COURT REPORTS
743
the prerogative of issuing writs. There are questions
1957
of fact and law which are in dispute requiring determiSohan 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 necesImam].
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
744
· SUPREME COURT REPORTS
[1957]
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
S.C.R.
SUPREME COURT REPORTS
745
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
v.
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.)
1957
Marth 1.