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TMI Blog1957 (3) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... rthwith 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty 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 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted 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 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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