INTRODUCTION

The prerogative writ of quo warranto is a legal remedy used to challenge the right of individuals
or corporations to hold public office or exercise public powers. "Quo warranto" is Latin for "by
what authority" and refers to the legal question of whether a person or entity has the right to hold
a certain position or exercise a certain power.
Quo warranto refers to special form of legal action used to resolve a dispute over whether a
specific person has the legal right to hold the public office that he or she occupies. In essence, a
quo warranto action seeks to determine whether an individual or corporation has usurped a
public office or power without proper legal authority or has continued to hold such office or
power despite having lost the right to do so.
Quo warranto is used to test a person’s legal right to hold an office, not to evaluate the person’s
performance in the office. For example, a quo warranto action may be brought to determine
whether a public official satisfies a requirement that he or she resides in the district; or whether a
public official is serving in two incompatible offices.
Quo warranto is not available to decide whether an official has committed misconduct in office.
A person who commits misconduct in a public office may be penalized or even removed from
office, but quo warranto is not the proper forum for those cases. Other processes are available for
that purpose.
Quo warranto originated in English common law as a process initiated by the crown to find out
whether a person was legitimately exercising a privilege or office granted by the crown, or
whether the person was instead intruding into a royal prerogative.
IMPLEMENTATION OF QUAS WARRANTO
If leave to sue is granted, then the relator may file a quo warranto action in the appropriate
superior court. From that point on, the matter is a judicial proceeding, subject to the procedures
and rules of the court. However, the relator must proceed under the direction and supervision of
the Attorney General throughout the action.

Before filing a complaint in the superior court, the relator must make any changes or
amendments that the Attorney General directs. At any stage of the proceeding, the Attorney
General may withdraw, discontinue or dismiss the case, or any part of it. Additionally, the
Attorney General may assume management of the litigation at any stage.

In the quo warranto action, the superior court will decide whether the defendant is lawfully
entitled to the office in question. If the defendant is not entitled to hold the office, the court may
decide who does have that right. If the court decides that the defendant unlawfully usurped the
office, the court will exclude the defendant from the office and assess costs. The court may also,
at its discretion, impose a fine on the defendant of up to $5,000. If the rightful holder of the
office has suffered damages, those may be recovered in a separate action. A relator may not file
an appeal from the superior court’s decision without the approval of the Attorney General.
Who can file the writ of Quo Warranto

The writ of quo warranto is typically filed in a court of law, either by a government
representative or by a private citizen or group of citizens who believe that someone is wrongfully
holding a position or exercising a power. The court will then hear evidence and arguments from
both sides and make a determination as to whether the individual or corporation in question has
the right to continue holding the office or power in question.If the court rules in favor of the
petitioner, the individual or corporation in question may be removed from office or stripped of
the power they were wrongfully exercising. In some cases, the court may also order other
penalties or damages to be paid.Overall, the prerogative writ of quo warranto is an important tool
in ensuring that public offices and powers are held only by those who have the legal right to do
so.

Conditions for issuing the writ of Quo Warranto

Public office
The writ of quo warranto applies in the case of an office which is public and not private in
nature, i.e established by law or the Constitution. The public office must be substantive in nature,
which excludes mere employment or function of a servant at the pleasure of another. The usurper
does not have the requisite qualifications to hold the public office, the usurper exercises certain
rights or privileges with respect to the public office he wrongfully occupies

Election
The Court needs to have strong and concrete justification if it wants to interfere with cases
associated with election. The Court can only interfere by issuing the writ of quo warranto where.
The election does not have the sanction of the law, there was a problem where people’s right to
express their opinions was being curtailed, the electoral roll was unlawfully made and used.

In cases where the inconsistency in the election does not affect the end result, or the problem is
not severe enough, the Court usually does not interfere. The Court also does not take action when
the applicant’s intentions are shady, with respect to the problems concerned with election.The
office must be a public one and it must be created by the constitution, It must be a substantive
one, there must be a contravention in constitution in appointing the person for that office.

There is no bar or restriction on who can apply. Any person can apply as long as their
fundamental or any other legal right is being breached. In cases where there is no breach of right,
a question of public interest must arise with respect to the application.

The application made by the applicant should be bona fide.

The application should not be made for the sake of certain hidden political struggle or
undercurrent. The applicant should act in public interest, and not expect any benefit or unethical
gain through making the application. . The office must be public and must be created by a Statute or
by the Constitution itself.. The office must be a substantive one and not merely the function or
employment of a servant at the will and during the pleasure of another. There has been a contravention
of the constitution or a Statutory Instrument, in appointing such person to that office. Select the correct
answer using the code given below:
Elements of Quo Warranto

For issuing the writ of quo warranto, the following ingredients are necessary. Wrongful
occupation, Nature of the office being public, not private, Substantive character, Contrary to
statutory provisions or the law.

For quo warranto, with respect to Article 226(1), it is not necessary that there must be a breach
of fundamental rights or a non-performance of duty. The main issue is – whether the usurper has
the authority to hold the office, and if not, then the order passed is an order to oust the usurper
from his post.

Even though the locus standi for quo warranto is relaxed compared to writs such as certiorari
and mandamus, the applicant must not be completely unrelated to the appointment and office in
question. Even if the connection is remote, the ‘link’ itself must exist.

In cases of election, where the applicant is not adversely affected or the end result would not
change despite the interference of the Court, the Court usually takes a stance of non-interference.

The applicant must not have any malafide or ulterior motives for applying for quo warranto. The
purpose of the applicant should be inclined towards acting for the benefit of public interest, and
not for personal gain

Example of cases in prerogative writ of quo warranto writ

University of Mysore v. C. D. Govinda Rao (AIR 1965 SC.491

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.
Held, 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.

Shyabuddinsab Mohidinsab Akki v. Gadag-Betgeri Municipal Borough (AIR 1955 SC

314(Vol. 42, C. N. 55))

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.
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 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.
CIRCUMSTANCES OF GRANTING PREROGATIVE WRITOF QUO WARRANTO
Usurpation of public office, also known as usurpation of authority.
This refers to the act of wrongfully assuming or exercising the powers and responsibilities of
public office without the lawful authority to do. This involves falsely claiming to hold a position
of authority or acting as an official when one is not legally entitled to do so. Usurpation of public
office is considered as serious offense in many jurisdiction because it undermines the integrity
and functioning of a government institution. It often involves deceit, fraud or impersonation and
can lead to significant harm such as corruption, abuse of power and breach of public trust . So
that quo warranto can be sought when an individual is wrongfully occupying a public office
without legal authority. In general it is treated as a criminal offense and can result in legal
consequences such as fines, imprisonment or both depending on severity of the offense and the
jurisdiction’s laws.

Example in the case of Mahesh Chandra Gupta v. Dr. Rajeshwar Dayal and Ors, (2003)
The appointment of the respondent in a medical college was questioned, but no connection was
found between the respondent and the appointment. The Allahabad High Court was of the
opinion that for the issuance of the writ of quo warranto, there must be some connection between
the petitioner and the respondent.
Even if the locus standi is relaxed, there must be certain connection between the petitioner and
the appointment to the public office, no matter how remote for quo warranto to be maintainable.

S. Chandramohan Nair v. George Joseph, (2010)

the appointment of the appellant as a member of the State Consumer Commission was
challenged on the ground that his name was not recommended by the Selection Committee.
Here, the respondent had no relation to the State Commision and failed to prove how the
appointment would adversely affect the samiti of which he was a general secretary. The Court
labelled the respondent a ‘busybody’ and ‘interloper’. The Supreme Court observed that the
Division Bench of the Kerala High Court erred by issuing the writ of quo warranto, thus
quashing the appellant’s appointment to the State Commission
Breach of qualification requirement
This refers to a situation where an individual holds or assumes a public office or position for
which they do not meet the legally prescribed qualifications or requirements. This it occurs when
a person fails to meet the specific criteria such as educational qualifications, professional
experience or any other prerequisites prescribed by law. In this sense quo warranto can be
involved to question their right to continue in that office. Breach of qualification requirement can
have serious implications as it can undermine the integrity of public institutions , erode public
trust and lead to ineffective governance. In some cases ,It may result in legal consequences such
as the invalidation of decisions made by an unqualified individuals, disciplinary actions, fines or
removal from office. It’s wroth nothing that the specific laws and penalties related to breach of
qualification requirement can vary across different jurisdiction . It is essential to consult the
relevant laws and regulation in a specific country or region to understand the legal implications
and consequence of such breeches in that context.

Example in the case of Rajesh Awasthi v. Nand Lal Jaiswal, (2013)

It was laid down that quo warranto applies where an appointment is made which is “contrary to
statutory provisions” and came up with a test to determine whether a person is eligible/qualified
to hold office as per the stipulations of law. The key point is to see if the office holder has the
qualifications to hold office as per law or not, with respect to statutory provisions.
When there is doubt or dispute as to whether a person or corporation has the legal right to
hold a particular office or position.
This is known as a legal challenge or a dispute of authority. It may require a court or other legal
authority to make a determination on the matter, based on relevant laws and regulations. In some
cases, the dispute may be resolved through negotiation or mediation. It is important to address
such disputes in a fair and transparent manner to maintain public trust in the legitimacy of the
office or position in question.In general, the writ of quo warranto may only be granted when
there is a question as to the legal right to hold a public office or position. It is not available as a
remedy for private disputes or personal grievances.
Here are a few examples of cases law on the writ of quo warranto: People v. Sloan (2001) - In
this case, the California Supreme Court granted the writ of quo warranto to remove a city
councilmember from office because he had been convicted of a felony prior to his election and
was therefore ineligible to hold public office.In People v. Sloan (2001), the material fact of the
case was that the city councilmember in question had been convicted of a felony prior to his
election, which made him ineligible to hold public office under California law. This fact was
central to the court's decision to grant the writ of quo warranto and remove him from office.
State ex rel. Tucumcari Pub. Sch. Dist. No. 22 v. Golden (1956) - In this case, the New
Mexico Supreme Court granted the writ of quo warranto to determine whether a school board
member was legally qualified to hold office. The court ultimately ruled that the member was not
eligible due to her failure to meet certain residency requirements.In State ex rel. Tucumcari Pub
Sch Dist No. 22 v. Golden (1956), the material fact of the case was whether a school district had
legal authority to enforce a policy of requiring the payment of school fees before allowing
students to participate in extracurricular activities. The court ultimately ruled that the school
district did not have the legal authority to enforce this policy, as it was not authorized by the state
legislature and violated the equal protection clause of the US Constitution.

When a public employee or officer has failed to perform their duties or has acted beyond
the scope of their authority.
This is known as misconduct or malfeasance and can result in disciplinary action or removal
from their position. It is generally considered a violation of the public trust and can harm the
integrity and effectiveness of the public institution or organization. Also the Abuse of public
office, this also known as abuse of power. This refers to misuse or improper exercise of authority
or resources by a public official or person in a position of power. This it involves using one’s
position for personal gain, to infringe on the rights of others or to act in a manner that is contrary
to the public interest. In this sense of abuse of public office is when a public official abuses their
authority or engages in illegal activities while holding office, under this matter quo warranto can
be used to challenge their continued occupancy of that position. Abuse of public office it include
several examples such as
(I) corruption which involves using one’s position to engage in bribery, embezzlement
(II) t( ii) Nepotism and favoritism which involves the use of power to provide unfair
opportunities to their family members, friends or associates(iii)Misuse of public
resources this includes using public funds, assets
(III) (iv) Discrimination and harassment which based on race, gender, religion or political
affiliation. (v) Violation of human rights such as torture, unlawful detentions . Abuse
of public office is a serious offense and breach of public trust which it undermines the
principle of accountability and transparency.
The public office must be substantive in characte
The duties connected to the office must also be public in nature. This means that authorities in
performance of their duties and responsibility it must be in the favour or insures the interest of
peoples without any violation of law. This it may be either stated in statute or provided in
constitution.

Example in the case Shyabuddinsab Mohidinsab Akki v. Gadag-Betgeri Municipal Borough (AIR
1955 SC 314(Vol. 42, C. N. 55))

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.
The holder must have asserted his claim to the office
One can be challenged even where the procedures in this appointment were not complied with.
For instance was failure to comply with swearing affimation procedure.
CONCLUSION
In the quo warranto there some limitations like 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. 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." 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. Also ( No Collateral Attack)One of
the important limitations in this regard is that the appointment cannot be attacked collaterally.