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 section N Anand for the appellant
RGanpathy Iyer and R H Dhebar for respondent No 1
AN 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 article 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 registered as a refugee on December 31 1947
He had made his application in the prescribed form
He had deposited the sum of Rs 5600 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 pm
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 section 25 of Ordinance III of 1952
After his evictionpossession 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 5600 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
section 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 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 vs Shri Rameshwar Dayal Deputy Commissioner Delhi 1 Hyderabad in G Kistareddy vs Commr
of City Police Hyderabad 2 and Pepsu in Mohinder Singh vs State of Pepsu 1 as well as certain observations in the judgment of this Court in the case of Wazir Chand vs 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 ILR 1954 Punjab 211
2 AIR 3 4  SCR 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 article 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 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 article 226 of the Constitution
The eviction of Jagan Nath was in contravention of the express provisions of section 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 vs 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 article 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


Summary:
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 section 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 article 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 section 3 Of the Public Premises 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 vs Chestey Corporation  applied