Writ of QUO WARRANTO UnderIndian Constitution

PROJECT REPORT ON: WRIT OF QUO-WARRANTO UNDER INDIAN CONSTITUTION

TABLE OF CONTENTS

ACKNOWLEDGEMENT ……………………………..………………....………….3 RESEARCH METHODOLOGY……………………………………..…………..…4 OBJECT………………………………………………………………………………..5 INTRODUCTION....................................................…….…….……..………………6 HISTORICAL DEVELOPMENT...............................................................................7 AUTHORITY UNDER INDIAN CONSTITUTION….......................................................................................................8 SCOPE………………………...............................................................................................9 LIMITATIONS……………………………………………………………………….………………10 IMPORTANAT CASE LAWS………………………………………………………………....11 CONCLUSION………………………………………………………………...…….14 BIBLIOGRAPHY……………………………………………………...………..…...15

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RESEARCH METHODOLOGY

The Objective of this project is to examine the Writ of Quo-Warranto under Indian Constitution. This paper is descriptive and analytical in nature. Secondary and Electronic resources have been largely used to gather information and data about the topic. Books and other reference as guided by Faculty of Economics have been primarily helpful in giving this project a firm structure. Websites, dictionaries and articles have also been referred. Footnotes have been provided wherever needed to acknowledge the source. Citation has also been provided.

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OBJECT The object of this compilation is to1. 2. 3. 4.

Study the Writ of Quo Warranto under Indian Constituion To study its importance. To study its method of application. To know about its history.

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INTRODUCTION The expression “writ” has not been defined in the constitution. According to the Webster dictionary meaning, it is “a formal order in writing issued under seal, in the name of sovereign, government, court or other authority commanding an officer or other person to whom it is issued to do or refrain from doing some act specified therein.” Quo warranto means: “by what authority”. Originally, the writ of quo warranto was a writ of right for the King against the subject who claimed or usurped any office, franchise, liberty or privilege belonging t the Crown, to inquire by what authority he supported his claim, in order to determine the right. Edward I used this writ to prevent encroachment on his rights and prerogatives. Thus, quo warranto was a weapon in the hands of the king against the usurpation of a prerogative of the Crown, but since long it had been extended beyond that limit and it had been used by private suitor also. In R. v. Hertford Corporation, quo warranto proceedings were initiated and the defendant was required to show by what authority he had admitted such persons to be freemen of the corporation who were not inhabitants of the borough. De Smith says, “it is said that quo warranto was only made available to the subject on modern times, but this view is wrong. Under Edward I it became a patent royal weapon against the usurper of franchise jurisdictions, but it had been used by private suitor long before that time”. The writ of quo warranto can be issued against the holder of a public office. The writ calls upon him slowly to the court under what authority he holds the office. If the holder has no authority to hold the office, he can be ousted from its enjoyment. If, on the other hand, he has the authority to hold it, the writ of quo warranto protects him from being deprived of the same. The power to issue a writ of quo warranto is not wider than that in England and the courts in India have followed principles as well as limitations as have been well established in England.1 The writ lay against a person who claimed or usurped an office, franchise or liberty, to inquire by what authority he supported his claim, in order that the right to the office might be determined.2 It also lay in case of non-user, abuse, or long neglect of a franchise.3

1

P.L.Lakhanpal v. Ajit Nath Ray, 1975 AIR (Del) 66 Halsbury’s Law of England, Vol.IX, p. 804, para. 1373 3 R. v. Hetford Corporation 2

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Chapter I Historical Development Originally a writ of quo warranto was only available for use by the king to protect the king against encroachment of the royal prerogative or of the rights, franchise or liberties of the crown, and an information in the nature of quo warranto which proceeding had taken the place of the old writ of quo warranto, was equally limited in the availability as a remedy. It was a civil writ at the suit of the crown4. Originally the write had be retuned before the kings justices at Westminster but afterwards only before the justices of the eyre by the virtue of the statue of Quo Warranto. The weight of Quo Warranto, however, fell into disuse and led to the substitution of proceedings, by way of information in the nature of Quo Warranto. Whatever the immigrate cause of the change or whenever it was brought about is not ascertainable, but the practice of feeling information‟s by the attorney general in lieu of these writs is very ancient5. Under section 9 of the Administration of justice provision act, 1938 information in the nature of Quo Warranto have been abolished and there place has been taken by the injunction restraining any person from acting in an office in which he is not entitled to act. In the form it was a criminal proceeding and it retained this aspect for some time after the writ was superseded by the quo warranto information, in as much as, in addition to trying the civil rights seizing the franchise or ousting the wrongful possessor, there was also a fine although nominal. Now it is provision by Sec. 48 of the Supreme Court of Judicature Act 1925, that proceedings in quo warranto shall be deemed to be civil proceedings whether for the purposes of appeal or otherwise.

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5

Rex v. Marsden, 3 burr 1817 Darley v. Queen, 12 CL. & F.502 at p.537.

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Chapter II Authority under Indian Constitution Specific provision has been made in Article 32 and 226 of the Constitution of India for the issuance of directions, orders or writs in the nature of quo warranto by the Supreme Court and the High courts. Quo Warranto is regarded as an appropriate and adequate remedy to determine right or title to a public office and to oust one who has unlawfully usurped or intruded into such office. Proceeding in quo warranto against a public officer is for the purpose of determining whether he is entitled to hold office and discharge its function6, and the quo warranto affords a judicial enquiry into such matter 7 . Quo Warranto has been considered to be a discretionary prerogative writ, and it can be refused under certain circumstances. Therefore, the writ of quo warranto is not a writ of course, it is a discretionary writ, and the High Courts can refuse that writ on the grounds of delay and larches, acquiescence, waiver, availability of alternative remedies or where the usurper of the office ceased to hold the offence by the time writ petition is filed. In the case Sasibhushan Roy v. Pramathnath Banerje8 the Calcutta high court held that in order for the writ of quo warranto to lie, the relevant offence must be of public nature, i.e. involves a delegation of some of the sovereign functions of the Government, executive, legislative or judicial, to be exercised by him for public benefit. Such public offence must be substantive in nature, not terminable at will. The official occupying the office must be independent and not merely one discharging the functions of a deputy or servant at the pleasure of another officer the person must be in actual position of the office. Mere declaration that a person is elected to an office or mere appointment to a particular office is not sufficient. He must accept such office. The office must be held in contravention of law and writ of quo warranto will not lie if there is a mere irregularity in the appointment. Quo warranto to will also lie when person validity occupies the office but acquires a disqualification later on. The conditions referred to above for issuing writ of quo warranto should co-exist.

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8

A. Ramchandran v. A. Alagiri Swami, I.L.R (1961) Mad. 553 : AIR 1961 Mad. 450 University of Mysore v. C.D. Govindrao, (1964)1 S.C.W.R. 44 : AIR 1965 S.C. 491 72 Cal. W.N. 50

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Chapter III SCOPE In order to maintain a petition for quo warranto the petitioner has to satisfy that the office in question is public office and; is held by usurper without legal authority. The term “office” is although something different from a “seat” in legislature, yet the post of chief Minister being office, a writ of quo warranto can in that respect lie9. Appointment of Chairmen of Bihar State Housing Board was challenged on the ground that requisite sanction under Sec. 7 was only directory. It was held that such a defense might be available against a writ of mandamus but not against quo warranto. Quo warranto can issue against Chief Minister or Ministers but cannot issue when after defeat of government on account of no-confidence, the Governor has retained Ministry till further arrangement. A writ of quo warranto against a Minister could not be issued, if the petitioner fails to make out that the Minister is not qualified under the law to hold his office or is not properly appointed. 10A writ of quo warranto not to be issued to an Administrator appointed by the state government, to administer Municipal Corporation, after its dissolution, till fresh elections are held.11 In a dispute involving elective office in Co-operative Society, any party to the dispute is entitled to make reference. Validity of nomination to State Legislature can be challenged even by person not connected with legislature. Registered graduates can challenge election to Syndicate of university. Appointment to public office can challenged by any person whether or not his fundamental or any legal right is infringed.

9

Purshottam Lal Sharma v. State of Rajasthan, AIR 1970 Raj. 18

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Maluaria A.Pedhathipathi v. State of Tamil Nadu, AIR 1984 Mad. 241

Awas Samasya Niwaran Sanstha v. State of M.P. AIR 1983 M.P. 12

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Chapter IV Limitations Offence must be of public natureWrit of quo warranto is granted only on respect of an offence which is of public nature. A petition will not lie against an offence of a private corporation. The post of a manager of corporation incorporated under the Companies Act cannot be held to be a public office.12 Even the writ of quo warranto cannot go against the managing committee of a private educational institutional not created by statue or rules having statutory force. 13 A Writ of Quo Warranto would not lie even against a person holding post in a government company which may be an „authority‟ and, therefore, „state‟ within the meaning of Article 12; as, such post is not a civil post, nor it is a post or offence held under the state. Where the entity is ex facite private, a writ of this nature cannot be issued- validity of an election to the membership of the working committee of an association like Arya Pratinidhi Sabha is not amenable to writ of Quo Warranto. No Collateral AttackOne of the important limitations in this regard is that the appointment cannot be attacked collaterally.14

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West Bengal Industrial Development Corporation Ltd. v. West Bengal Industrial Development Corporation Nirmal Kumar v. B.K. Basu 14 Beopar Sahayak (P) Ltd. v. State of Andhra Pradesh 13

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Chapter V Important Case Laws

University of Mysore v. C. D. Govinda Rao15 Principles laid down: Constitution of India, Art.226 – Nature of writ Conditions to be satisfied for issue of writ. Broadly stated, that quo warranto proceeding affords a judicial enquiry in which any person holding an independent substitutive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him front that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognized in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not.

15

AIR 1965 SC 491

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G.D.Karkare v. T.L. Shevde16 The petitioner applied to the High Court for the issue of a writof quo warranto against the Advocate-General of the State on the allegation that he wasguilty of intrusion into the office of the Advocate-General, for at the date of appointmenthe did not possess the necessary qualifications prescribed by the Constitution for thatoffice. It was held that a writ of quo warranto could issue as the office of the Advocate-General was of a public nature.There is no question of delay in presenting a petition for a writ of quo warranto in whichthe right of a person to function in a certain capacity is challenged because every daythe person so acts in that capacity a fresh cause of action arises.The issue of a writ of quo warranto is discretionary in nature and the petitioner is notnecessarily entitled to the issue of a writ. Thus, where a person was holding a post for along time and there was no complaint against him and the issue of a writ of quowarranto would have been vexatious, the High Court shall in its discretion refuse toissue a writ of quo warranto. The Calcutta High Court has held that acquiescence on thepart of the petitioner may disentitle him to a writ of quo warranto.The writ of quo warranto will not lie in respect of an office of a private nature.

Jamalpur Arya Samaj v. Dr D. Ram17 The petitioner moved the High Court for issue of a writ in the nature of quo warranto against the members of the Working Committee of the Bihar Raj Arya Pratinidhi Sabha²a private religious association. The court refused the writ on the ground that a writ of quo warranto does not lie against an office of a private nature.It is also necessary that the office in respect of which a writ of quo warranto is moved must be of a substantive character. The words "substantive character" means an office independently entitled. In other words, the officer must be an independent official and not merely one discharging the functions of a deputy or servant at the will and pleasure of others. An application for the writ of quo warranto challenging the legality of an appointment to an office of a public nature is maintainable at the instance of any private person, although he is not personally aggrieved or interested in the matter.

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AIR 1952 Nag 333 AIR 1954 Pat 297

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G.D. Karkare v.T.L. Shevde The Nagpur High Court observed: "In proceedings for a writ of quo warranto the applicant does not seek to enforce any right of his as such nor does he complain of any non-performance of duty to him. What is in question is the right of the non-applicant to hold the office and an order that is passed is an order ousting him from that office."

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CONCLUSION A writ of quo warranto is a petition that can be said as a but a notice of demand, issued by a demandant, to a respondant claiming some delegated power, and filed with a court of competent jurisdiction, to hold a hearing within 3 to 20 days, depending on the distance of the respondant to the court, to present proof of his authority to execute his claimed powers. If the court finds the proof insufficient, or if the court fails to hold the hearing, the respondant must cease to exercise the power. If the power is to hold an office, he must vacate the office. The writ requires the concerned person to explain to the Court by what authority he holds the office. The Writ of quo-warranto is used to prevent illegal assumption of any public office or usurpation of any public office by anybody. For example, a person of 62 years has been appointed to fill a public office whereas the retirement age is 60 years. Now, the appropriate High Court has a right to issue a Writ of quo-warranto against the person and declare the office vacant.

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BIBLIOGRAPHY Books1. M.P. Jain, The Constitutional of India Vol.1 & 2, New Delhi: India Law House, 2001. 2. Basu, Durga Das, Commentary on the Constitution of India, Calcutta: Debidas Basu, 1989 3. Bakshi, P.M., The Constitution of India, Delhi: Universal Law Publishing, 2002 4. Pandey , J.N., Constitutional Law of India, Allahabad: Central Law Agency, 2003 5. Datar, Arvind P., Datar on Constitution of India, Agra : Wadhwa & Co.,2001. ActsThe Constitution Of India, 1950

WEBLIOGRAPHY 1. http://indiacode.nic.in 2. http://books.google.co.in 3. http://indianconstitution.in

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