WRIT OF QUO-WARRANTO

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

4
Rex v. Marsden, 3 burr 1817

5
Darley v. Queen, 12 CL. & F.502 at p.537.
 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 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 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.

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
 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
10
Minister is not qualified under the law to hold his office or is not properly appointed. 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
 Chapter IV

LIMITATIONS

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.

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
13
Nirmal Kumar v. B.K. Basu
14
Beopar Sahayak (P) Ltd. v. State of Andhra Pradesh
 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
 G.D.Karkare v. T.L. Shevde

The petitioner applied to the High Court for the issue of a writ of quo warranto against the Advocate-
General of the State on the allegation that he was guilty of intrusion into the office of the Advocate-General,
for at the date of appointment he did not possess the necessary qualifications prescribed by the Constitution
for that office. 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 which
the right of a person to function in a certain capacity is challenged because every day the 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 not necessarily 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 quo warranto would have
been vexatious, the High Court shall in its discretion refuse to issue a writ of quo warranto. The Calcutta
High Court has held that acquiescence on the part 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. Ram

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.
 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."

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.