CRITICAL ANALYSIS OF QUO WARRANTO

Introduction

Writ:- 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 bee 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.

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India have followed principles as well as limitations as have been well established in England1.

It is a writ of technical nature issued against a usurper of an office or, against a person who is

entitled to make an appointment to that office. What worked in the mind of the appointing

authority in making the impugned appointment is irrelevant otherwise the holder of office

would be at a great disadvantage since he is simply called upon to show his authority to hold

the office and normally he is the only party to the petition.

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
2
Halsbury’s Law of England, Vol.IX, p. 804, para. 1373
3
R. v. Hetford Corporation

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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 wait 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.

4
Rex v. Marsden, 3 burr 1817.
5
Darley v. Queen, 12 CL. & F.502 at p.537.

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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 matter7.

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 laches,

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

6
A. Ramchandran v. A. Alagiri Swami, I.L.R (1961) Mad. 553 : AIR 1961 Mad. 450
7
University of Mysore v. C.D. Govindrao, (1964)1 S.C.W.R. 44 : AIR 1965 S.C. 491
8
72 Cal. W.N. 50
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.

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.10

A 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
10
Maluaria A.Pedhathipathi v. State of Tamil Nadu, AIR 1984 Mad. 241
11
Awas Samasya Niwaran Sanstha v. State of M.P. AIR 1983 M.P. 12
 Limitations

1. Offence must be of public nature

Writ 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.

2. No Collateral Attack
One of the important limitations in this regard is that the appointment cannot be

attacked collaterally.14

12
West Bengal Industrial Development Corporation Ltd. v. West Bengal Industrial Development Corporation
Employees’ Union.
13
Nirmal Kumar v. B.K. Basu
14
Beopar Sahayak (P) Ltd. v. State of Andhra Pradesh
 Cases

1. University of Mysore v. C. D. Govinda Rao (AIR 1965 SC.

491)

Principles laid down:

Constitution of India, Art.226 - WRITS - Quo warranto, writ of - Nature of writ Conditions to be
satisfied for issue of writ.

Broadly stated, the 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 it 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.

Facts:

(Constitution of India, Art.226 - PLEA )

The appointment of the respondent No. 2 by the respondent No. 1 (university) as a reader was
challenged only on the ground that the respondent No. 2, did not have the qualifications
advertised for the post and no attempt was made to show that the appointment was illegal on
the ground of statutory provisions and the High Court issued a writ of quo warranto quashing
the appointment on the grounds alleged, without considering the statutory provision, in an
appeal against the orders of the High Court to the Supreme Court, it would not be open to the
petitioner to take a ground about the effect of the statutory rules and ordinances, for the first
time.

Where one of the qualification for the appointment to the post of a Reader in the University was
that the applicant should possess a First or High Second Class Master's Degree of an Indian
University or an equivalent qualification of a foreign University, the candidate should possess a
First Class Master's Degree of an Indian University or High Second Class Master's degree of an
Indian University or qualification of a foreign university which is equivalent to a First Class or a
High Second Class Master's degree of in Indian University.

Boards of Appointments to the post of teacher are nominated by the Universities and when
recommendations made by them and the appointments following on them, are challenged
before courts, normally the courts should be show to interfere with the opinions expressed by
the experts.

If there is no allegation about mala fides against the experts who constituted the Board, it
would normally be wise and safe for the courts to leave the decisions of academic matters to
experts who are more familiar with the problems they face than the courts generally can be. The
Board is not in the position of an executive authority, issuing an executive fiat, nor does it act
like a quasi judicial tribunal deciding disputes referred to it for its decision. In dealing with
complaints made by citizens in regard to appointments made by academic bodies, like the
Universities, such an approach would not be reasonable or appropriate.

Tests which would legitimately be applied in the case of writs of certiorari cannot be applied.
The question of manifest error is a consideration which is more germane and relevant in a
procedure for a writ of certiorari.

Judgement

By GAJENDRAGADKAR, J. :

The petition from which these appeals by special leave arise was filed by the respondent, C. D.
Govinda Rao, in the Mysore Court under Art. 226 of the Constitution. By that petition, he
prayed that a writ of quo warranto be issued calling upon Anniah Gowda to show cause as to
under what authority he was holding the post of a Research Reader in English in the Central
College, Bangalore. He also prayed for a writ of mandamus or other appropriate writ or
direction calling upon the University of Mysore to appoint him Research Reader in the scale
of Rs. 500-25-800.

His case was that the appointment of Anniah Gowda to the post of Research Reader was illegal
in the face of the prescribed qualification and that he was qualified to be appointed to that post.
That is why he wanted the appointment of Anniah Gowda to be quashed, and he asked for a
writ, directing the University to appoint him in that post. To his petition, he impleaded the
University of Mysore by its Registrar, and Anniah Gowda as the opposite party.

The University of Mysore and Anniah Gowda- they urged that Anniah Gowda was property
appointed Research Reader and that the contention made by the respondent that the said
appointment was invalid was not justified.
On these pleadings, evidence was led by both the parties in respect of their respective
contentions the form of affidavits. The High Court has held that the appointment of Anniah
Cowda was invalid and so it has quashed the Resolution of the Board of Appointments of
the University of Mysore recommending his appointment and has directed that his
appointment subsequently made by the Chancellor of the University should be set aside.

The judgment of the High Court does not indicate that the attention of the High Court was
drawn to the technical nature of the writ of quo warranto which was claimed by the respondent
in the present proceedings, and the conditions which had to be satisfied before a writ could
issue in such proceedings.

In the present case, it does not appear that the attention of the Court was drawn to this aspect
of the matter. The judgment does not show that any statutory provisions or rules were placed
before the Court and that in making the appointment of appellant No. 2, these statutory
provisions had been contravened.

Matter appears to have been debated at length before the High Count. Evidence was led by both
the parties and the respondent seriously disputed the claim made by both the appellants that
appellant No. 2 satisfied the test of five years experience of teaching Degree classes. The High
Court examined this evidence and ultimately came to the conclusion that though the material
adduced by the appellants on this point was unsatisfactory, it could not make a finding in
favors of the respondent. In this connection, the High Court has severely criticized the conduct
of appellant No. 1 to which we will refer later. Thus, it is clear that substantially the High Court
decided to quash the appointment of appellant No. 2 on the ground that it was plain that he did
not satisfy the first qualification. In this connection, the High Court has also criticized the report
made by the Board and has observed that the Members of the Board did not appear to have
applied their minds to the question which they were called upon to consider.

Hence, the writ petition filed by the respondent is dismissed with costs throughout. There
will be one set of hearing fees in both the appeals filed by the two appellants.

Final judgement: Appeals allowed.

Controversy:

By enacting the Bombay Act, 54 of 1954, the Legislature apparently thought fit to declare
beyond all controversy that an election of President or Vice-President for the unexpired portion
of the term or a municipality could not be questioned on the ground that the provisions of S. 19
as it stood before the amendment had been contravened. The contention cannot be accepted that
urges that in terms the amendment made by the said Act had not been made applicable to
pending litigation and that therefore Supreme Court should hold that the amendment did not
have the effect of validating the elections which were already under challenge in a Court. As
there are no such saving clauses in express or implied terms, it must be held that the
amendment was clearly intended by the Legislature to apply to all cases of election of President
or Vice-President, whether or not the matter had been taken to Court.

Facts:

The 1st respondent is a municipality governed by the provisions of the Municipal Boroughs
Act (Bombay Act XVIII of 1925) which hereinafter shall be referred to as the Act for the sake of
brevity. The appellant is one of the 32 councilors constituting the municipality. The last general
election to the municipality took place on 7-5-1951.

The term of the councilors was three years computed from the date of the first general meeting
held after the general election aforesaid -in this case 10-7-1951. In that meeting the 4th and 5th
respondents were elected President and Vice-President respectively of the municipality for a
term of three years.
The Act was amended by Bombay Act XXXV of1954, under which the term of office of the
councilors was extended from 3 to 4 year ending on 9-7-1955. As the term of respondents 4 and
5 aforesaid was to expire at the end of three years from 10-7-1951 and as the term of the
municipality was extended by one year under the amending Act aforesaid, the vacancies thus
occurring had to be filled up by a fresh election of President and Vice-President. The Collector
therefore called a special general meeting of the municipality to be held on 30-7-1954 to elect a
President and Vice-President for the remaining period of the quadrennial.

The Collector had nominated the Prant Officer (the District Deputy Collector) to preside over
that special general meeting.

On 30-7-1954 the Prant Officer under instructions from the Collector adjourned the meeting to
3-8-1954 without transacting any business, the only item on the agenda being the election of the
President and Vice-President. The 3rd respondent raised a point of order against the
adjournment but the presiding officer aforesaid overruled that objection. Hence the special
general meeting was held on 3-8-1954.

The presiding officer who was the same person who had adjourned the meeting on 30-7-1954
overruled that objection too. Thereupon 13 out of the 32 councilors who were present walked
out on the ground that they did not propose to participate in a meeting in which the proposal
was to elect a President for less than a year contrary to the provisions of the Act.

The appellant was one of those 13 councilors who walked out. It may be added that the full
strength of the municipality is 32 councilors all of whom were present both on 30-7-1954 and
3-8-1954. The remaining 19 councilors proceeded to transact business and elected the 2nd
respondent as the President, the proposal being that he "should be President of the
municipality for the remaining period of the quadrennial" and that was the proposal which
was carried.

Immediately after the election of the President another meeting was held for the election of the
Vice-President under the presidency of the newly elected President (the 2nd respondent). The
appellant raised the same point of order as he had done in the case of the election of the
President and that was also overruled. There upon six of the councillors present including the
appellant walked out and the remaining councilors elected the 3rd respondent as the Vice-
President.

The appellant moved the High Court of Bombay under Art. 226 of the Constitution for a writ
of 'quo warranto' or any other appropriate writ or order or direction against the 2nd and 3rd
respondents "restraining them from usurping the office of the president and Vice-President
respectively of the opponent No. 1 Municipality and restraining them from performing any
duties and from exercising any powers as President and Vice-President respectively.

Issue:

Whether the provisions of S. 19(1) as they stood on 3-8-1954 render the election of the President
and the Vice-President on 3-8-1954 invalid as it was "for the remaining period of the
quadrennial."

The High Court has taken the view that the remaining period of the quadrennial would not
necessarily end on 9-7-1955, in view of the proviso to S. 19(1) "that the term of office of such
President or Vice-President shall be deemed to extend to and expire with the date on which his
successor is elected." In view of the events that have happened it is not necessary for us to
pronounce on the correctness or otherwise of that decision.

After the judgment of the High Court and after the grant of special leave by this Court, the
Bombay Legislature enacted Act 54 of 1954 which was published in the Bombay Gazette on 14-
10-1954. Sections 2 and 3 of the amending Act are in these terms:

In S.19 of the Bombay Municipal Boroughs Act 1925, in sub-section

(1) After the words 'not less than one year' the words 'or not less than the residue of the term of
office of the municipality, whichever is less' shall be inserted:

(2) For the words 'three years' the words 'four years' shall be substituted.
Judgement

The High Court held that the election of the 2nd and 3rd respondents was not illegal and
dismissed the application. It held that on a proper construction of the relevant provisions of the
Act it was not correct to say that the term of office of the councilors or of the newly elected
President and Vice-President shall end with 9-7-1955; that the intention was to elect the
President and the Vice-President for the remaining term of the municipality which was not only
a period of four years certain but an additional period up to the date when new President and
Vice-President would be elected and take over after a fresh general election; that the
adjournment of the meeting of the 30th July was not beyond the powers of the presiding officer;
and that consequently the meeting of the 3rd August was not vitiated by any illegality.

It was also pointed out by the High Court that all the councilors constituting the municipality
had notice of the adjourned meeting and did as a matter of fact attend that meeting and that
even if there was any irregularity in the adjournment on 30-7-1954 that did not affect the
legality of the adjourned meeting and the business transacted therein.

Final judgement :Appeal dismissed.