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PETITIONER: SOHAN LAL

       Vs.

RESPONDENT: THE UNION OF INDIA

DATE OF JUDGMENT: 07/03/1957

BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER BHAGWATI, NATWARLAL H. JAGANNADHADAS, B. MENON, P. GOVINDA KAPUR, J.L.

CITATION:  1957 AIR  529            1957 SCR  738

ACT: Writ of mandamus-Disputed questions of fact and  law-Dispute regarding  title-Whether remedy by way of  writ  appropriate -When  writ can issue to private individual-State  illegally evicting Person from house-Another Person taking  Possession bona fide without knowledge of illegal eviction-Whether writ can  issue against such person-Constitution of  India,  Art. 226.

HEADNOTE: J,  a  displaced person, was found Prima facie  entitled  to allotment of a house and the Accommodation Officer moved his family  into  the house on May 10, 1952, but  no  letter  of allotment  was  issued to him.  Later,  when  certain  facts became  known  which in the opinion of the  Union  of  India disentitled  j  to the allotment, he was informed  that  the house  could not be allotted to him. j was evicted from  the house  on  September 27, 1952, without being given  15  days notice  as required by S. 3 of the Public Premises  Eviction Act  (XXVII of 1950).  The house was then allotted to S  and he  was  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.  Held, that the High Court erred in issuing the writ of mandamus. There was a serious dispute on questions of fact between the parties  and  also whether j had acquired 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 a party’s title  and  ordering restoration of possession.  The proper remedy in such a case is by way of a title suit in a Civil Court.  The alternative remedy of obtaining relief by a 739 writ of mandamus or an order in the nature of mandamus could only  be had if the facts were not in dispute and the  title to the. property in dispute was clear. As  the eviction of J was illegal on account of the  failure to  give  him  notice  under S. 3  Of  the  Public  Premises

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Eviction  Act  a writ of mandamus might have issued  to  the Union if the property had still been in its possession.  But no  such  writ 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  transaction  between them  was  merely colourable, entered into with  a  view  to deprive  J  of his rights, jurisdiction to  issue  the  writ might be said to exist in the Court.  The writ however could not  issue to S who had, apparently, entered into bona  fide possession  of the house without knowledge that J  had  been illegally evicted therefrom. R. v. Chestey Corporation, (1855) 25 L.J.Q.B. 61, applied.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 132 of 1954. Appeal  by special leave from the judgment and  order  dated April  30,  1953, of the Circuit Bench of  the  Punjab  High Court at Delhi in Civil Writ Application No. 314 of 1952. 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. 1957.  March 7. The Judgment of the Court was delivered by IMAM  J.--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  respondent  The Union  of  India and the appellant Sohan  Lal  to  forthwith restore  possession of house No. 35 situated in  West  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. Jagan  Nath  is  a  displaced  person  and  a  refugee  from Pakistan.   The  Government  of India  had  devised  various schemes for the rehabilitation of refugees.  One 740 of these was a scheme for sale of certain houses constructed by the Government of India for refugees in West Patel Nagar. It   was  not  intended  -under  the  scheme  to   entertain applications  from  displaced persons who had  already  been allotted agricultural land in East Punjab.  A limited number of  houses known as ’box-type tenements"  were  constructed. According  to  -he  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  gain- fully  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

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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 West  Patel Nagar.  He was informed that the allotment of  a particular house would 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 741 property  in  dispute  in  this appeal,  fell  to  his  lot. According to Jagan Nath, on May 10, 1952, the  Accommodation Officer  in  his absence removed the members of  his  family along with his entire belongings to the house in dispute  in a  truck and he and his family thus 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 questions of fact between the parties  and  also whether  Jagan  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 appellant that a writ  of mandamus or an order in the nature of mandamus could not  be made  against the appellant, a private individual.   He  had come  into  lawful possession and there was no  evidence  of collusion 742 between him and the Union of India and there was no  finding by the High Court that the appellant had acted in  collusion with the Union of India as a result of which Jagan Nath  was dispossessed  of  the property in 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

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could be evicted.  This was not done and he had been evicted without  complying with the mandatory provisions of a. 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 illegaly 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 Khushal Singh v. Shri Rameshwar Dayal, Deputy  Commissioner, Delhi  (1),  Hyderabad in G. Kistareddy v.  Commr.  of  City Police,  Hyderabad (2) and Pepsu in Mohinder Singh v.  State of  Pepsu  (1),  as  well as  certain  observations  in  the judgment  of  this Court in the case of Wazir Chand  v.  The state of Himachal Pradesh (4) 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. We  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.  If we 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] Punjab 211. (2)  A.I.R. [1952] Hyderabad 36. (3)  A.I.R. [1955] Pepsu 60. (4)  [1955]  S.C.R. 408. S.C.R.                          743 the  prerogative of issuing writs.  There are  questions  of fact  and law which are in dispute  requiring  determination before  the respective claims of the parties to this  appeal can  be  decided.   Before the property in  dispute  can  be restored to Jagan Nath it will be necessary 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 his favour.  In the circumstances to be  mentioned hereafter, 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 possession  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, agricultural 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, West Patel Nagar and allotment of  that house was made to the appellant who was found to be eligible

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in   every  way.   The  appellant  was   accordingly   given possession of the property after Jagan Nath’s eviction.  The appelant had complied with all the conditions imposed by 744 the  Union of India and a letter of allotment  was  actually issued to him and he entered into possession of the property in  dispute under the authority of the Union of India.   Did the  appellant  thereby acquire a legal right  to  hold  the property as a 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 Jagan Natb 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 745 possession  and  that  a  mandamus  will  go  only  on   the supposition  that  there  is nobody holding  the  office  in question.  In R. v. Chester Corporation (1) it was held that it is an inflexible rule of law that where a person has been de facto elected to a corporate office, and has 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 made 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.

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Appeal allowed.