Sohan Lal Vs. The Union of India
 INSC 23 (7 March 1957)
IMAM, SYED JAFFER BHAGWATI, NATWARLAL H.
MENON, P. GOVINDA KAPUR, J.L.
CITATION: 1957 AIR 529 1957 SCR 738
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.
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 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 there from.
R. v. Chestey Corporation, (1855) 25 L.J.Q.B.
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
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
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. 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
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,
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 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. 
(2) A.I.R.  Hyderabad 36.
(3) A.I.R.  Pepsu 60.
(4)  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 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 there from.
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.