By N. C. Jain, Advocate
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The Word
1. A Latin expression for ‘by what warrant ?’ is a legal
process demanding to know by what right a person exercises the controversial
authority. As one of the prerogative writs, the process is a constitutional
remedy which can be availed against a person not qualified to hold a public
office or post. The petition filed against a person alleged to have usurped any
franchise or liberty or office of public nature enables enquiry into the
legality of the claim which a person asserts to an office or franchise and to
oust him from such position if he is found to be a usurper. As observed by the
Supreme Court in the University of Mysore v. C. D. Govinda Rao and Another,
AIR 1965 SC 491, “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
provision; it also protects a citizen from being deprived of public office to
which he may have a right. It would be seen that if these proceedings are
adopted subject to conditions recognized in that behalf, they tend to protect
the public from usurpers of public offices; 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 writs of quo warranto
is properly invoked, the usurper can be ousted and the person entitled to the
post allowed to occupy it”.
2. Halsbury in Law of England, 3rd Vol. II (P.145) puts it as
under :
“The writ of quo warranto is a common law process of
great antiquity a writ of right for the king against one who claimed or
usurped any office, franchise or liberty. An information in the nature of
quo warranto is obviously its modern form.”
Post the aforesaid observations, informations in quo
warranto were abolished by Administration of Justice (Miscellaneous
provisions) Act, 1938 giving power to grant an injunction to restrain the
executive of power in an office to which a man is not entitled. The injunction
took place with all the old substantive rules, though the cumbersome and
reconciled procedure of the old writ had been given up.
3. The writ of quo warranto is a discretionary remedy
which the Court may grant or refuse. For a citizen to claim such remedy, he has
to satisfy the Court that (a) the office is of public and of a substantial
nature, (b) it is created by statute or by the constitution itself, and (c) The
respondent has asserted his claim to the office.
4. The remedy of quo warranto is a limited remedy. The
jurisdiction of the High Court to issue such writ can only be used when the
appointment is in clear violation of statutory provisions and rules. Where the
order of appointment is within law, but mala fides of the appointing
authority is alleged, the High Court of Delhi in P. L. Lakhanpal v. Ajit Nath
Ray, AIR 1975 Delhi 66 held that even though it is indisputable that mala
fide action is no action in the eye of law, the motives of the appointing
authority in making the appointment of a particular person are irrelevant in
considering issue of writ of quo warranto. The Court in R. K. Jain v.
Union of India, (1993) 4 SCC 119, held that the evaluation of comparative
merits of the candidates would not be gone into such litigation. In B.
Srinivasa Ready v. Karnataka Urban Water Supply and Drainage Board Employees
Association (2006), coming out of SLP (C) No. 9393/ 2006, the question to be
decided was whether an order appointing a person ‘until further orders’ can be
challenged in a writ. It was argued that a writ of quo warranto would not
lie against order ‘Until further orders’, as it is not a regular appointment.
Moreover it ensures that appointment continues without limit. Holding that a
writ will not lie, the Court in the facts of the case observed that “When the
statute does not lay down the method of appointment or terms of appointment, the
appointing authority who has power to appoint has absolute discretion in the
matter and it cannot be said that discretion to appoint does not include power
to appoint on contract basis”.
5. The existence of the legal right of the petitioner which
is alleged to have been violated, is the foundation for invoking the
jurisdiction of the High Court in matters of writs. This orthodox rule regarding
the locus standi to reach the Court has gradually undergone a change and
the constitutional Courts have been adopting a liberal approach in dealing with
the cases or dislodging the claim of a litigant merely on hyper technical
grounds. This rule is particularly relaxed in quo warranto matters. The
Supreme Court in Ghulam Qadir v. Special Tribunal & Others, (2002) I SCC
33, observed that there is no dispute regarding the legal proposition that
rights under Article 226 of the Constitution of India can be enforced only by an
aggrieved person except in the case where the writ prayed is for habeas
corpus or ‘quo warranto’.
6. Courts have, however, been taking the view that the writ
of quo warranto should be refused where it is an outcome of malice or ill
will. The Supreme Court in Dr. B. Singh v. Union of India and others,
(2004) 3 SCC 363, held that only a person who comes to the Court with bona
fides and public interest can have locus. Coming down heavily on busybodies,
meddlesome interlopers, wayfarers or officious interveners having absolutely no
public interest except for personal gains or private profit either of themselves
or as a proxy for others or for any other extraneous motivation or for glare of
publicity, it was held that apart from credentials of the applicant and prima
facie correctness and definiteness, the information should show gravity and
seriousness involved.
7. Other grounds on which a writ can be refused are when it
is vexatious or would be futile, or when an alternative remedy will be equally
efficacious or where there is mere irregularity in the election of the office.
Refusal can also arise in cases of laches or where there has been prior
acquiescence of the applicant in respect of the act complained of.
