judgement:
Civil Appeal No. 1234 of 1977.
From the Judgment and Order dated 19.8.74 of Allahabad High Court in Civil Writ Petition No. 4827 of 1974 R.K. Garg and Shakeel Ahmed Syed for the appellant.
Prithviraj, Mrs. section Dikshit, S.K. Kulshreshta and P. Mishra for the respondents .
The Judgment of the Court was delivered by VARADARAJAN, J.
This appeal by special leave is directed against an order of a Division Bench of the Allahabad High Court dated 19.8.1974 dismissing in limine Miscellaneous Writ Petition No. 4827 of 1974 which had been filed by the appellant for quashing the 246 first respondent 's order dated 3.5.1974 removing him from service pursuant to the finding of the second respondent, U.P. Administrative Tribunal, Lucknow dated 10.7.1972 that the appellant was guilty of three of the four charges framed against him.
The appellant was employed as a Deputy Superintendent of Police at Pilibhit at the relevant time.
The fourth charge of which the appellant 'has been exonerated was that he had transferred his Vespa Scooter bearing Registration No. UPI 9117 and valued at more than Rs. 500/ to One Lal Mohd. without obtaining the previous sanction of the appropriate authority and he thereby.
contravened Rule 24(2) of the U.P. Government Servants ' Conduct Rules, 1956.
The appellant 's defence was that the transfer was effected through a reputed dealer and therefore previous sanction of the appropriate authority was not necessary.
The Tribunal found that the transaction of sale of the scooter by the appellant to Lal Mohd was effected through M/s. Anand Agencies, automobile engineers and reputed dealers in scooters and therefore there was sufficient compliance with Rule 24(2).
Charges 1 to 3 were more serious ones.
The substance of the first charge was that the appellant while posted as Deputy Superintendent of Police at Pilibhit was granted 30 days leave with effect from 11.11.1967 and had to resume his duties on 10.12.1967 but failed to resume his duties and absented himself without previous permission or intimation to the Superintendent of Public and without good or sufficient cause.
He failed to report about his whereabouts until an application was made by him on 24.4.1968 for extension of the leave.
The appellant 's defence was that he suffered from an attack of a mental disease, melancholia and was under the treatment of Dr. Mukerji at Calcutta from 1.12.1967 to 20.4.1968 and he has informed about his sudden illness and had applied for extension of the leave directly and also through his wife and he had furnished his leave address when he proceeded on 30 days leave.
The substance of the second charge was that while applying for extension of leave on 20.4.1968 he attempted to willfully deceive the Inspector General of Police by attempting to make him believe that he had been ill from 1.12.1967 to 20.4.1968 and was under treatment of a doctor at Calcutta although in fact he had been to Pakistan during the period and had obtained a medical certificate through deceitful and fraudulent ' means.
The defence of the appellant was one of denial.
He reiterated that he was under treatment of Dr. Mukerji at Calcutta from 1.12.1967 to 20.4.1968 and contended that in that 247 period he was treated by Dr. Das at Howrah from 10.1.1968 to 30.1.1968 for injuries to his nose.
The substance of the third charge was that after having proceeded on leave with effect from 11.11.1967 he unauthorisedly and unlawfully visited Karachi in Pakistan some time between 22.11.1967 and 20.4.1968 without any valid passport or travel document and the he by contravened section 3 of the Passport Act, 1967.
The appellant denied the charge and contended that he had never visited Karachi and had been suffering from melancholia and treated by Dr. Mukerji at Calcutta.
A number of witnesses for the department and some witnesses tor the defence were examined before the Tribunal which a after considering the oral and documentary evidence found charges 1 to 3 against the appellant.
One Harish Kumar, Superintendent of Police who was appointed as an assessor in the inquiry conduct before the Tribunal agreed with the findings of the Tribunal.
Subsequently, the Tribunal submitted copies of its findings to the Government with its recommendation that the appellant may be dismissed from service.
The Governor accepted the Tribunal 's findings, took a tentative decision to dismiss the appellant from service; and issued a second show cause notice dated 29.9.1972 to him.
The appellant submitted his interim reply and final reply on 19.11.1972 and 31 3.1973 respectively.
After considering the appellant 's replies the Governor agreed with the Tribunal that the charges 1 to 3 are fully established against the appellant and ordered his removal from service by the order dated 1.8.1974.
The appellant challenged his removal from service in W.P. No. 4827 of 1974 which was dismissed in limine by a Division Bench of the Allahabad High Court.
Hence this appeal by special leave.
This appeal deserves to be allowed on a short point which unfortunately has not been noticed by the learned Judges of the High Court before dismissing the writ petition in limine.
The appellant had prayed for summoning 8 witnesses for being examined in his defence by filing an application dated 17.1.1972 for that purpose.
The Tribunal dismissed that application on 19.1.1972 on the ground that it had already taken into consideration the relevant rules in the Financial Code Volume III and that it does not consider it necessary to revise its views.
The Tribunal observed in that order that the appellant has to bear the expenses of the witnesses who are private persons if he wanted to have them examined in his 248 defence.
He was, however, given one week 's time to deposit a sum of Rs.900 initially by way of travelling and daily allowances for the witnesses as well as compensation for the loss of their professional income and he was ordered to make good any shortfall.
The appellant had not deposited that amount and the witnesses had not been summoned for being examined in his defence.
The question for consideration is whether on this account there is non compliance with the principles of natural justice.
The Tribunal has relied upon Rule 20A of the Travelling Allowances Rules (Financial Handbook Volume III) in making the above order.
Sub rule l of that Rule reads thus: "20A. (13 Persons, who, not being servants of the Government, are called as witnesses in a departmental inquiry either by the authority conducting the inquiry or on behalf of the government servant whose conduct is under inquiry, shall receive the same travelling allowance and diet money as are admissible to non official witnesses summoned in criminal cases, provided that in the case of such persons who are called on behalf of the government servant whose conduct is under inquiry, the payment of travelling allowance and diet money shall be subject to the following principles: (a) travelling allowances may be Paid to witnesses summoned in the event of the government servant concerned clearing himself; (b) such allowances will be paid only in respect of witnesses whose evidence is considered of material value by the authority conducting the inquiry; and (c) in exceptional cases the authority conducting the & inquiry may, on grounds to be recorded, recommend to the Government that the principles laid down above be departed from owing to special reasons.
In such cases it will be for the Government to decide, after taking into consideration all the circumstances of the case, whether the recommendation should be accepted or not.
The authority, conducting the inquiry shall determine the class of each witness for the purpose of calculating travel 249 ling allowance and diet money under the scale prescribed for witnesses in criminal case.
" This sub rule is not quite clear, for it does not say who should bear the expenses initially or whether the inference to be made by the inquiring authority under class (c) should be made before or 1 after the examination of the witnesses.
Clause (b) of this sub rule seems to have been considered satisfied in the present case as the Tribunal had decided to summon the witnesses provided the amount was deposited by the appellant as directed.
The appellant has contended in para 31 of his writ petition that in view of G.O. No. 4l97 R/VIIIA 500 (146)/68 travelling allowance and diet money of witnesses to be examined before the Tribunal must have been paid by the State Government but he was asked to deposit a sum of Rs.900 for the witnesses being summoned and this is in violation of the relevant provision relating to conduct of proceedings before the Tribunal.
The said G.O. marked Annexure 11 to the writ petition relates to one Kunhi Ram and was evidently intended to clarify.
Rule 20A of the Traveling Rules and it reads thus: "In continuation of G.O. No. 1371 1/VIII 2000 (10/61, dt.
July 3, 1961) I am directed to say that in the special appeal the appellant had contended that the additional S.P. Agra had asked him to deposit the expenses for T.A. etc.
of defence witnesses before he summoned them.
The position in this connection has been examined by the Govt and is being clarified here.
Under para 490(5) of the police regulations the S.P. has to decide whether he should refuse to summon a , witness whose evidence he does not consider material to the issue.
The witnesses who are accepted by the S.P. for being produced in defence can be either summoned by him or allowed to be produced by the party charged, So far as the question of payment of expenses for the journey by a defence witness is concerned it is not material when once a witness is permitted to be produced whether he is summoned officially or is called by the party charged himself.
The responsibility for payment of travelling expenses to the defence witnesses produced during departmental trial conducted under section 7 of the Police Act is of the Government.
Thus if a witness has been permitted to be produced in defence, it is not open to the inquiring officer to lay down a condition that this travelling expenses should be first deposited 250 before he is summoned.
However, no expenses are to be paid for persons who are not permitted to be produced in defence.
The position with regard to the payment of travelling expenses to the defence witnesses is as follows: (i) Govt.
servants who appear as defence witnesses to give evidence of the facts which come to their knowledge in their official capacity are governed by Rule 59(1) of the Financial Handbook Volume III for the purpose of travelling allowance; (ii) As regards govt.
servants who appear as witnesses to facts which have come to their knowledge in the private capacity and appear as private individuals the position under rule 59(2) of Financial Handbook Volume III is that they are entitled to receive their actual travelling expenses from the Court and as suck they will get T.A, on an ad hoc basis and as on tour.
Thus if he is a Govt.
servant travelling in a train. . as an ordinary passenger and has to bear witness to that in his private capacity he should be paid T.A. as on tour.
The Meharrirs of the Police Stations bringing records which they maintain at P.S.s. in their official capacity will be governed by class (1) above.
(iii) Non official witnesses called or allowed to be produced by the S.P. will get T.A. under rule 20A of Financial Handbook Volume Ill." This G.O. makes it clear that responsibility for payment of travelling allowance to defence witnesses produced in departmental inquiry conducted under section 7 of the Police Act is of the Government and that if a witness has been permitted to be produced in defence it is not open to the inquiry officer to lay down a condition that his travelling expenses should be first deposited by the delinquent officer before the witness is examined.
In the present case, the Tribunal has considered the witnesses to be material but has insisted on the appellant depositing initially a sum of Rs. 900 for the travelling expense and daily allowances of the witnesses with an obligation to make good any shortfall in those allowances and loss of professional income of the witnesses.
Mr. Prithvi Raj, Senior Counsel appearing 251 for the respondent State did not contend that this G.O. does not A apply to the case of the appellant.
Moreover, the appellant was under suspension from 11.12.1967 and there is nothing on record to show that he was financially sound and in a position to deposit the sum of Rs.900 and pay any further amount which may be required to meet any shortfall in the travelling and daily allowances and the loss of professional income of the 8 more witnesses whom he wanted to be examined on his side.
The failure to cause the production of those witnesses at the expense, of the Government might have caused prejudice to the appellant for it cannot be predicated what conclusion the Tribunal would have reached in regard to charges 1 to 3 if the evidence of those witnesses was available for its consideration.
We are, therefore, of the opinion that there is no compliance with the principles of natural justice in this case.
The appeal has to be allowed on this short ground and it is accordingly allowed.
The finding of the Tribunal that the appellant is guilty of charges l to 3 and the consequent order of the Government/Governor removing the appellant from service are quashed.
The matter is remitted to the Tribunal for fresh disposal after summoning at government expense such of the material witnesses as the appellant may wish to be examined in his defence.
The appellant shall be entitled to costs quantified at Rs. 2,000.
It is needless to say that the appellant would be entitled to subsistence allowances from the date of his removal from service until the proceedings taken against him terminate and final order is passed.
This shall be paid in six weeks.

dataset_name: IN-Abs

summary:
In a departmental inquiry conducted by the second respondent U.P. Administrative Tribunal into certain charges levelled against the appellant a Deputy Superintendent of Police, the Tribunal dismissed the application of the appellant praying for summoning 8 witnesses for being examined in his defence.
The Tribunal relied upon rule 20A(1) of the Travelling Allowances Rules (Financial Handbook Volume III) and observed that the appellant had to deposit the expenses of the witnesses, who were private person, if he wanted to have them examined in his defence within a specified time.
The appellant did not deposit the amount and the witnesses were not summoned.
Pursuant to the finding of the Tribunal the appellant was removed from service.
The appellant filed a writ petition in High Court contending that in view of G.O. No. 4197 R/VIIIA/500(146)68 travelling allowance and diet money of witnesses to be examined before the Tribunal must have been paid by the State Government but he was asked to deposit a sum of Rs. 900 for the witnesses being summoned and this was in violation of the relevant provision relating to conduct of proceeding before the Tribunal.
The High Court dismissed the writ petition in limine.
In this appeal the question was whether on this account there was non compliance with the principles of natural justice., Allowing the appeal, ^ HELD: There is no compliance with the principles of natural justice in this case.
[251C] Rule 20A(1) of the Travelling Allowances Rules (Financial Handbook Volume III) is not quite clear, for it does not say who should bear the expenses initially or whether the reference to be made by the inquiring authority under clause (c) should be made before or after the examination of the witnesses.
Clause (b) of this sub rule seems to have been considered 245 satisfied in the present case as the Tribunal had decided to summon the witnesses provided the amount was deposited by the appellant as directed.
[249B C] G.O. No. 4191 R/VIIIA 500(146) which was evidently intended to clarify Rule 20A of the Travelling Rules makes it clear that responsibility for payment of travelling allowance to defence witnesses produced in departmental inquiry conducted under section 7 of the Police Act is of the Government and that if a witness has been permitted to be produced in defence it is not open to the inquiry officer to lay down a condition that his travelling expenses should be first deposited by the delinquent officer before the witness is examined.
[250G H] In the present case, the Tribunal has considered the witnesses to be material but has insisted on the appellant depositing initially a sum of Rs. 900 for the travelling expense and daily allowance of the witnesses with an obligation to make good any shortfall in those allowances and loss of professional income of the witnesses.
The respondent State did not contend that this G.O. does not apply to the case of the appellant.
Moreover, the appellant was under suspension from 11 12 1967 and there is nothing on record to show that he was financially sound and in a position to deposit the sum of Rs. 900 and pay any further amount which may be required to next any shortfall in the travelling and daily allowances and the loss of professional income of the 8 more witnesses whom he wanted to be examined on his side.
The failure to cause the production of those witnesses at the expense of the Government might have caused prejudice to the appellant for it cannot be predicated what conclusion the Tribunal would have reached in regard to charges 1 to 3 if the evidence of those witnesses was available for its consideration.
[250H, 251 A C]


judgement:
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.
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 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. 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 section 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.
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) I.L.R. [1954] Punjab 211.
(2) A.I.R. (3) (4) ; 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 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.