Bishan Narain, J.
1. A certain premises consisting of a building with a small grassy plot known as 'Lady Reading Coolies Shelter' situated in Simla was given to the Municipal Committee (hereinafter called the committee for tise as coolie shelter. The Punjab State Club was in possession of these premises in June 1957 when on 23-6-1957 the Committee locked up and sealed the premises. This has led the Club to file this petition under Article 226 of the Constitution on the ground that the Club was in possession of these premises as tenant and could not be evicted without a proper order by a Court of law. This petition is contested by the Committee.
2. The admitted facts are these, On 4-8-1949, Shri P. Tribhavan, then Press Liaison Officer, requested the Committee to allot these premises to the 'Services Club' which was proposed to be started for Government and Semi-Government servants. The Committee granted this request and passed a resolution on the 4th August reading--
'Resolved that this building be allotted for one year to this Club on payment of rent on condition that it will be used as a Club during hours which will be fixed by the Committee so as not to deprive the public of the use of the open space in front ol of this building. ***'
The Services Club accordingly occupied the premises. Admittedly, this Club was an unincorporated members Club and was formed for social intercourse and relaxation and recreation of its members. On 14-6-1950, the Committee passed a resolution calling upon the Club to vacate the premises on or before 5-9-1950. The Club requested the Committee to re-consider the matter but that request was not accepted.
Number of notices were issued to the Club and resolutions were passed calling upon the Club to hand over possession. Thereafter the facts are not admitted and are in dispute and I shall deal with them a little later. Suffice it to say that on the facts alleged by the Club the petitioner claims that it is Committee's tenant, while according to the Committee's version the petitioner is merely a trespasser and has no right to remain in possession of the premises.
3. Before dealing with the case on merits I may dispose of the preliminary objection raised on behalf of the respondent Committee. Its objection is that the Punjab Services Club not being a registered body could not file this petition through the Club's officers and that it could be filed only by all the members of the Club. This petition is filed by the Punjab State Club, Simla, through its Managing Committee through Sh. Avtar Singh, Chairman, Sh. Sewa Ram Anand and Sh. S. P. Mehta, members.
This petition is supported by the affidavit of Avtar Singh. Other members have not been im-pleaded as petitioners or respondents. Admittedly the Punjab Services Club is an unregistered members' Club. Such a club has no legal status. It is neither a company nor a partnership. It is a social club for relaxation and recreation of its members. Unregistered members Clubs are societies, the members of which are perpetually changing and are merely aggregates of individuals, called for convenience by a common name.
It is well established that such association of members cannot sue or be sued in the association's name and all its members must sue or be sued, It is argued by the learned counsel for the petitioner that it was the intention of all the members of the Club to file this petition and that they have merely used the Club's name as a short and collective name for all the individual members who constitute the Club. According to the learned coun-sel these three members who figure as petitioners I have been authorised by all the members to file this petition and they are really acting as representativesof all the members.
It is urged that if the procedure adopted is defective, then it is merely a case of misdescrip-tion and an amendment may be allowed to cure this defect. This is a possible view and in this view all that is required to be done to regularise the petition is to permit the petitioner to amend the petition and to implead all the existing members us petitioners or as respondents. In view of this matter I have decided not to accept the preliminary objection and to deal with the case on merits.
4. On the admitted facts it is necessary to determine the nature of the Service Club's rights in the property in dispute. Section 47(2) and (3) of the Punjab Municipal Act prescribes mode of transferring immovable property belonging to the Committee. Those provisions are mandatory, and unless the mode laid down therein is strictly complied with, there can be no valid transfer binding on the Committee. A lease of immovable property is a transfer of right to enjoy such property.
In the present case it is admitted that no instrument transferring lease rights in these premises was executed by the Committee and that the Services Club was allowed to occupy them by virtue of the resolution passed by it. This resolution the terms of which I have produced earlier, does not purport to lease the property to the Services Club. It merely allows the building to 'be used as Club during hours which would be fixed by the Committee. It follows that even the whole time possession was not delivered to the Club by this resolution.
It is true that the resolution contemplates 'payment of rent by the Club, but this by itself is not sufficient to create the relationship of landlord and tenant. It was argued that as the Committee had been supplying electricity and water to the Services Club and also to the petitioning Club and has been receiving amounts of bills thereof, it must: be taken that the contract of lease had been partly performed.
I have already held that the resolution does not amount to a contract of lease. The receipt of dues on account of supply of electricity and water cannot be considered to be a conduct which acknowledges the tenancy rights of the Services Club or the petitioning Club. At the time when electricity or water connection is given, the Committee does not go into the tide of the occupier and merely supplies these facilities and charges for them from the occupier of the building.
In any case, the defect in the agreement (non-compliance with Section 47(2) of the Act) cannot be cured by the application of the doctrine of part performance: vide P. D. Shamdasani v. Tata Industrial Bank. Ltd., AIR 1928 PC 238, and New Delhi Municipal Committee v. H. S. Rikhy AIR 1958 Punj 181. As the Services Club was permitted by the resolution to occupy the premises in dispute for one year, ft must be held that Its occupation by that Club in 1949 was by licence of the Committee.
5. This brings me to the period after the expiry of one year for which the licence was granted to the Services Club. It is common ground that the Committee called upon the Club to vacate the premises on. or before me 5th of September, 1950, by giving about two and a half months' notice and the Club's request to re-consider this decision was rejected. The petitioner's case is that the Services Club and thereafter the Punjab Service Club continued to remain in possession till 1957 when the Committee locked and sealed these premises.
According to the petitioner both the Services Club and the Punjab State Club consisted of Government servants and had many common members. The petitioner has also pleaded that the Committee has been recognising the tenancy rights of the Club by receiving electricity and water charges from it. On the other hand, the respondent's case is that the Committee had taken possession of the premises on or about the 3rd of December, 1951. but a few days later another Club by the name of New Services Club took illegal and forcible possession by breaking open the windows of the building and that thereafter on some unknown day the petitioning Club occupied the premises.
According to the petitioner it occupied the premises in 1954. The question arises in these circumstances whether the rival claims made by the parties based on facts which are disputed should be determined by me in the present proceedings. Their Lordships of the Supreme Court have repeatedly deprecated the High Court determining disputed facts in proceedings under Article 226 of the Constitution. In Sohan Lal v. Union of India. AIR 1957 SC 329, their Lordships have observed:
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 ot 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.'
These observations fully apply to the present case. The right of the Club to remain in occupation of the premises is far from clear. It is claimed that even as licensee, although the licence has been revoked, the petitioner could not be evicted except in due course of law and not by force. It is further claimed that even a trespasser who has remained in occupation of the property in dispute for about three years cannot be evicted except in due course of law through civil Courts.
The Committee-replies that the petitioner was not evicted forcibly and its continued possesion was due to the members by a device having got the file relating to this case summoned by the Government and they got the same detained there for about four years In these circumstances, I think the matter should be decided more appropriately by a civil Court in the ordinary way.
6. Moreover, the petitioner has ample remedy under Section 9 of the Specific Relief Act. This provision of law is intended to meet just the cases of the present type. The petitioner can still avail of this remedy as six months have not yet expired since the Committee locked up the premises. In these circumstances it would not be proper for me either to decide these disputed questions of fact and law, particularly when it is still open to the petitioning Club, in spite of my decision, to go to a civil Court under Section 9 of the Specific Relief Act.
7. In the end I may say that strictly speaking the petition fails on the ground that the petitioner has not succeeded in showing that it is Committee's tenant on which basis the present petition was filed.
8. For all these reasons, this petition fails and f dismiss it with costs. Counsel's fee Rs. 100/-. These costs will be paid by the three members of the Punjab State Club who have filed this petition.