'Writ of Quo Warranto'

DR. RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW

ACADEMIC SESSION: 2016-17

ADMINSTRATIVE LAW: FINAL DRAFT

'Writ of Quo Warranto'

Submitted To: SubmittedBy:

Ms. Ankita Yadav Anjali Verma

AssistantProfessor(Law) B.A.LL.B.(Hons.)

Dr. RMLNLU, Vth Semester

Lucknow. Section-B

Roll No. 33

Page 1
 'Writ of Quo Warranto'

ACKNOWLEDGEMENT

It feels great pleasure in thanking Ms. Ankita Yadav, Assistant Professor (Law) for giving
me this opportunity to work on the project topic, 'Writ of Quo Warranto',which helped me in
doing a lot of research and gain knowledge on the same. I would also like to thank my
family and friends for their support and guidance. Lastly, I wish to thank the library staff for
providing help in finding appropriate books and content related to the project topic.

Anjali Verma

V Semester

Page 2
 'Writ of Quo Warranto'

TABLE OF CONTENTS

INTRODUCTION ..................................................................................................................... 4
Role of High Courts: Writ jurisdiction under Article 226 ......................................................... 6
WRIT OF QUO WARRANTO ............................................................................................... 11
JURISDICTION TO ISSUE QUO WARRANTO .................................................................. 12
PURPOSES FOR WHICH QUO WARRANTO MAY BE ISSUED ..................................... 12
CONDITIONS FOR THE ISSUE OF QUO WARRANTO TO PUBLIC OFFICES FILLED
IN BY APPOINTMENT.......................................................................................................... 13
ELECTIONS AND WRIT OF QUO WARRANTO ............................................................... 14
WHO MAY APPLY FOR QUO WARRANTO? .................................................................... 15
QUO WARRANTO, A DISCRETIONARY RELIEF ............................................................ 17
CONCLUSION ........................................................................................................................ 19
BIBLIOGRAPHY .................................................................................................................... 20

Page 3
 'Writ of Quo Warranto'

INTRODUCTION

Administrative law has greatly demarcated the checks, balances and permissible area of an
exercise of power, authority and jurisdiction over administrative actions enforced by any
State, Governmental agencies and instrumentalities under the Constitution of India.The
administrative law is that branch of law that keeps the governmental actions within the
bounds of law or putting it negatively, prevents the enforcement of blatantly bad orders from
being derogatory.1Judicial review of administrative actions is the backbone of the functioning
of the administration in a country. The Courts have constantly tried to protect the liberties of
the people and assume powers under the Constitution for judicial review of administrative
actions. The discretionary powers of the administrative bodies have to be curbed, if they are
misused or abused. That is the essence of justice. The trend is to read social justice and to
translate in reality. The welfare state has to discharge its duty fairly without any arbitrary and
discriminatory treatment to the people in the country. If such powers come to the notice of
the Courts, the courts have raised the arms consistently with the rule of law. Today the
Government is the provider of social services like jobs, quotas, licenses and mineral rights
etc. The dispenser of special services cannot therefore act arbitrarily. Courts laid the standard
of reasonableness in Governmental action.

The origin of writs can be drawn from the English Judicial system and were created with the
development of English folk courts-moots to the common law courts. The law of writs has its
origin from the orders passed by the King’s Bench in England. Writs were issued on a
petition presented to the king in council and were considered as a royal order. Writs were a
written order issued in the name of the king which acted as groundwork for the subsequent
proceedings. However, with different segments writs took various forms and names. The
writs were issued by the crown and in the interest of the crown but with the passage of time it
became available for ordinary citizens also. However a prescribed fee was charged for it and
the filing of these writs were known as Purchase of a writ.2

The origin of writs in India goes back to the Regulating Act, 1773 under which Supreme
Court was established at Calcutta. The charter also established other High courts and these
High Courts had analogous power to issue writs as successor to the Supreme Court. The other

1
S.P. Sathe, "Administrative Law", 7th Edition, 2008, Lexis Nexis Butterworths, Wadhwa and Company Law
Publishers, Nagpur.
2
BhagbatiProsad Banerjee and Bhaskar Prosad Banerjee, "Judicial Control of Administrative Action", 3rd
Edition, 2001, Wadhwa and Company Law Publishers, Nagpur.

Page 4
 'Writ of Quo Warranto'

courts which were established subsequently did not enjoy this power. The writ jurisdiction of
these courts was limited to their original civil jurisdiction which they enjoyed under section
45 of the Specific Relief Act, 1877.

The makers of the Constitution have adopted the English remedies in the Constitution under
Articles 32 and 226. 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
otherperson to whom it is issued to do or refrain from doing some act specified therein."
Although, there has been specifically made provisions in the Constitution which empowers
the Supreme Court and High Courts to issue writs in the nature of Habeas Corpus,
Mandamus, Prohibition, Quo Warranto and Certiorari.

The fundamental rights which are inalienable sacrosanct in nature and character which were
conceived in national and public interest could be illusory if there is no constitutional
machinery provided for its enforcement. Unless such constitutional remedies for its
enforcement is not provided the rights guaranteed by part III of the Constitution cannot be
ever implemented by the citizens. 3Article 32 contained in Part III is itself a fundamental right
given to the person under the Constitution. Similarly Article 226 of the Constitution is
conferred on the High Courts to exercise its prerogative writs which can be issued against any
person or body of person including the government. The distinction between the two
remedies is very negligible. The remedy under Article 32 is confined to enforcement of
fundamental rights whereas Article 226 is available not only against the enforcement of
fundamental rights but also for any other purpose. Thus the constitution provides the
discretionary remedies on the High Court and the Supreme Court. In the absence of the
provisions of such remedies no one can enforce its rights given. Thus wherever there is a
right there must be a remedy for it. Thus it should satisfy the maxim, ‘ubi jus ibiremedium.’

3
Arvind P. Datar, "Commentary on the Constitution of India", Volume 1, 2nd Edition, 2007, Wadhwa, Nagpur.

Page 5
 'Writ of Quo Warranto'

Role of High Courts: Writ jurisdiction under Article 226

A very significant aspect of the Indian Constitution is the jurisdiction it confers on the High
Courts to issue writs. The writs have been among the great safeguards provided by the British
Judicial System for upholding the rights and liberties of the people. It was an act of great
wisdom and foresight on the part of the Constitution-makers to introduce the writ system in
India, and thus, constitute the High Court's into guardians of the people's legal rights.In the
pre-Constitution era, only the High Courts of Calcutta, Madras and Bombay enjoyed the
jurisdiction to issue writs. The jurisdiction was, however, limited territorially as each High
Court could issue a writ not throughout the whole of its territorial jurisdiction but only within
the area of the Presidency Town within which it enjoyed an original jurisdiction.4No other
High Court had such a jurisdiction. Article 226 thus affects all the High Courts in a
fundamental manner and adds greatly to their power. Each High Court now has a writ
jurisdiction, and even the Calcutta, Madras and Bombay High Courts have benefited for they
can now issue writs even outside the limits of their original jurisdiction. In the modern era of
welfare state, when there is governmental action on vast scale, a procedure to obtain speedy
and effective redress against an illegal exercise of power by the Executive is extremely
desirable. Through writs, the High Courts are able to control, to some extent, the
administrative authorities in the modern administrative age. The writ system provides an
expeditious and less expensive remedy than any other remedy available through the normal
Court-process.

It is a public law remedy. The High Court while exercising its power of judicial review does
not act as an appellant body. It is concerned with illegality, irrationality and procedural
impropriety of an order passed by the State or a statutory authority. Under Article 226, a High
Court is empowered to issue directions, orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of a
Fundamental Right and for any other purpose. High Courts exercise discretionary and
equitable jurisdiction under Art 226. As said in the case of, State of Orissa v. Gokulananda
Jena5, the power of the High Court to entertain a petition under Art.226 is an original power.
The significant point to note is that under Art.226, the power of a High Court is not confined
only to issue of writs, it's broader than that, for a High Court can also issue directions to

4
M P Jain,“Outlines of Indian Legal and Constitutional History”,7th Edition, 2008, Lexis Nexis 303-
308(1990).
5
State of Orissa v. Gokulananda JenaAIR 2003 SC 4207.

Page 6
 'Writ of Quo Warranto'

enforce any of the Fundamental Rights or "for any other purpose", as the language of Art.226
goes. High Courts can pass appropriate orders while exercising jurisdiction under Art. 226.
Such power can neither be controlled nor affected by Order 23, Rule 3, CPC because,
proceedings in exercise of writ jurisdictions are different from proceedings in a civil
suit.Power under Article 226 can be exercised by the High Court to reach injustice wherever
it is found. But the Court has also set its own limits saying that even a wrong decision is not
open to challenge unless it be mala fide. 6The doctrine of fairness does not convert the writ
courts into appellate authorities over administrative authorities, unless the action of the
authority is mala fide, because then, even a wrong decision taken by it is not open to
challenge. Hence, whatever the wisdom(or the lack of it), of the conduct of such an authority,
it will not be judicially reviewed and particularly so in commercial matters, the Courts should
not risk their judgments for the judgments of the bodies to which task is assigned. Article 226
provides an important mechanism for judicial review of administrative action in the country.
India is a democratic country governed by Rule of Law. Public authorities exercise various
types of powers- executive, adjudicatory, legislative. It is necessary that public authorities act
according to law and so they are subjected to judicial review. Judicial review of the action of
the public authorities, is an essential part of Rule of Law and the courts have been expressly
entrusted with the power of judicial review as sentinel in qui vive. Also, the importance of
Art.226, has been clearly said in L. Chandra Kumar v Union of India7, here, a Seven Judge
Bench of the Supreme Court held that the power of judicial review under Art.226 of the
Constitution was one of the basic features of the Constitution. Having held so, the court at the
same time also held that a litigant cannot straight away invoke the High Court's constitutional
jurisdiction at the first instance but must approach the Administrative Tribunal first.

The great advantage of Art.226 is that its scope cannot be curtailed or whittled down by
legislation. The jurisdiction of the High Court under Art.226 cannot be taken away by any
legislation. Even when the Legislature declares the action or decision of an authority final,
and ordinary jurisdiction of the courts is barred, a High Court is still entitled to exercise its
writ jurisdiction which remains unaffected by legislation. A finality clause in a statute acts as
no bar to exercise of the High Court's jurisdiction under Art.226.Also, since exercise of
power under Art.226 is a discretionary relief, it may be denied because of suppression of

6
ibid.
7
L. Chandra Kumar v Union of India (1997) 3 SCC 261.

Page 7
 'Writ of Quo Warranto'

facts. But the suppressed fact must be a material one, i.e., one which would have had an
effect on the merits of the case.

Then, this article cannot be invoked for resolution of a private law dispute. It is also well
settled that a writ remedy is not available for resolution of a property or a title dispute

The Supreme Court has given an expansive interpretation to Art.226 over time. Under this
article, instead of merely quashing an administrative order as invalid when it is found to be
flawed, the judicial tendency is to mould the relief according to the needs of the situation. In
this way, judicial review has assumed a very positive and a creative complexion.

A High Court exercises its writ jurisdiction throughout the territories in relation to which it
exercises its jurisdiction. It can issue a writ-

1. to a person or authority having its location or residence within the Court's territorial
jurisdiction; or,

2. if the cause of action either wholly or partly arises within the High Court's territorial
jurisdiction.

Also, even if a small fraction of the cause of action accrues within the jurisdiction of the
Court, the Court will have jurisdiction in the matter.8

Not to forget, the power of the High Court under Art.226 is supervisory in nature and is not
akin to appellate power. The main purpose of this power is to enable the High Court to keep
the various authorities within the bounds of their powers, but not to sit as an appellate body
over these authorities. It is often said that judicial review is not directed against the decision,
as such, but is confined to the decision-making process. The Supreme Court has often
referred to the following lines from an English case, i.e., Chief Constable of the North Wales
Police v. Evans9, to define the nature of the jurisdiction conferred by Art.226, "The purpose
of judicial review is to ensure that the individual receives fair treatment, and not to ensure
that the authority, after according fair treatment, reaches on a matter which it is authorized
or enjoined by law to decide for itself a conclusion which is correct in the eyes of the Court."
This means that, generally speaking, the writ Court can quash a flawed decision but it cannot
substitute its own decision for that of the concerned authority.

8
M.P. Jain, "Indian Constitutional Law", 7th Edition, 2014, Lexis-Nexis 380-381.
9
Chief Constable of the North Wales Police v. Evans (1982) 3 All ER 141(HL).

Page 8
 'Writ of Quo Warranto'

A High Court does not ordinarily issue a writ when an alternative efficacious remedy is
available. Under Art.226, the High Court does not decide disputes for which remedies under
the general law are available. Ordinary remedies are not sought to be replaced by Art.226.
This principle has been stated by the Supreme Court in the case of, Union of India v. T. R,
Verma10, which follows as, "It is well settled that when an alternative and equally efficacious
remedy is open to a litigant, he should be required to pursue that remedy and not invoke the
special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence
of another remedy does not affect the jurisdiction of the Court to issue a writ; but the
existence of an adequate legal remedy is a thing to be taken into consideration in the matter
of granting writs....." The rule of exhaustion of remedies is not however an inflexible rule; it
is a rule of policy, convenience and discretion rather than of law. It is a rule of practice rather
than that of jurisdiction. Existence of an alternative remedy does not affect High Court's
jurisdiction under Art.226 and so it is not always obligated to relegate the petitioner to the
other remedy available to him. The High Court's jurisdiction being discretionary, it will take
into consideration the alternative remedy available and then decide whether in circumstances
of the case, it should grant or refuse to grant a remedy under Art.226.

In context with the limitation period, with respect to applying for writs, no period of
limitation is prescribed for a High Court to exercise its power under Art.226. Nevertheless, a
writ petition under Art.226 may be dismissed by a High Court on the ground of petitioner's
laches i.e. undue delay in ascertaining a legal right, because courts do not like stale claims
being agitated and unsettle settled matters. So, writ petitions filed after inordinate delay are
usually dismissed. So, it can be said that the real test to determine delay in such cases is that
the petitioner should come to the writ Court before a parallel right is treated and that the lapse
of time is not attributable to any laches or negligence.

The High Court under Art.226 have power not only to issue writs but also to make orders and
to issue directions. Accordingly, the High Court's do not only issue writs, but discharge a
much wider function, i.e., to mould relief in accordance with the facts of the case with a view
to do complete justice between the contending parties.

Also, when a writ petition is filed, the Court may make an interim or interlocutory order. The
purpose of such an order is to preserve in status quo the rights of the parties, so that, the
proceedings do not become infructuous or ineffective by any unilateral overt acts by one side

10
Union of India v. T. R, VermaAIR 1957 SC 882.

Page 9
 'Writ of Quo Warranto'

or the other during the pendency of writ petition. The scope and effect of an interim order
would depend upon terms of the order itself. In case of any ambiguity the interim order
should be understood in the light of prayer made for interim relief, facts of the case and terms
of interim order.

Page 10
 'Writ of Quo Warranto'

WRIT OF QUO WARRANTO

Under the Indian legal system, jurisdiction to issue, 'prerogative writs' is given to the
Supreme Court, and to the High Courts of Judicature of all Indian states. A writ means an
order. Quo warranto means, "by what warrant?"This means that Supreme Court and High
Court may issue the writ which restrains the person or authority to act in an office which he
or she is not entitled to. This writ is applicable to the public offices only.The writ of quo
warranto is issued against a person who claims or usurps a public office. Through this writ
the court inquires, 'by what authority' the person supports his or her claim. In a writ of quo
warranto, the question raised is as to the validity of an appointment made by the executive
authority to a public office which is alleged to be contrary to statutory provisions. A writ of
quo warranto is not a petition, but a notice of demand, issued by a demandant, to a respondent
claiming some delegated power, and filed with a court of competent jurisdiction, to hold a
hearing, to present proof of his authority to execute his claimed powers.

Issuance of a writ of quo warranto is a discretionary remedy. Authority of a person to hold a

high public office can be questioned inter alia in the event an appointment is violative of any
statutory provision. There concededly exists a distinction in regard to issuance of a writ of
quo warranto. For the issuance of a writ of quo warranto, it is necessary that the office in
respect of which the writ is sought must be a public office and the test of public office is
whether the duties of the office are public in nature and the office in question has been
created by statute or the Constitution.

In Halsbury’s Laws of England it is stated as follows, "An information in the nature of quo
warranto took the place of the obsolete writ of quo warranto which 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 or franchise might be determined."

Page 11
 'Writ of Quo Warranto'

JURISDICTION TO ISSUE QUO WARRANTO

Prior to the Constitution, the High Courts in the presidency towns had the jurisdiction to issue
this writ, within the limits of their original jurisdiction. The first reported case of quo
warranto in India was Corkhill, Re11. It was a case of show cause why the incumbent to the
office of Commissioner of Corporation should not cease to as such on the ground that he was
not voted by qualified voters. On merits, the application was dismissed.

Under the Constitution, the power to issue the writ belongs to the Supreme Court under
Article 32 and to a High Court under Article 226. The power is being exercised broadly on
the same principles as in England.

PURPOSES FOR WHICH QUO WARRANTO MAY BE ISSUED

The writ of quo warranto may be issued for the following purposes:

(1.) Usurpation of a public office, which is filled by appointment: It was established in the
case of Darley v. R12, that information in the nature of quo warranto will lie for usurping any
office, provided the office is of a public nature, and a substantive office, not merely the
function or employment of a deputy or servant held at the will and pleasure of others.

(2.) Election to a public office, including office in a public corporation: For these two
purposes, a writ of quo warrato may be issued in India.

(3.) Abuse or non abuse of corporate franchise: In England, a writ of quo warranto is a
prerogative writ intended to be employed for shielding the sovereignty of the Crown from
invasion and preventing abuse of public office by protecting public interest. It is a remedy to
test the right of a person occupying public office, franchise or liberty. The sole object of quo
warranto is to inquire by what authority the incumbent was exercising the right to a public
office and to have him ousted if his claim or assertion is not well founded.

11
Corkhill, ReILR (1895) 22 Cal 717.
12
Darley v. R(1846) 12 Cl & F 520(542) (HL).

Page 12
 'Writ of Quo Warranto'

CONDITIONS FOR THE ISSUE OF QUO WARRANTO TO PUBLIC

OFFICES FILLED IN BY APPOINTMENT

The following conditions must be satisfied for a writ of quo warranto to apply:

a) The office must be public: It will not lie in respect of office of a private institution or a
private association. The object of the writ from this standpoint has been explained by the
Supreme Court in the case of Ex parte Richards13 as follows: "….the procedure of quo
warranto confers jurisdiction and authority on the judiciary to control executive action in the
manner of making appointments to public offices against the relevant statutory provisions; it
also protects a citizen from being deprived to public office to which he may have a right. It
would thus be seen that, if 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 allowed to public office may be allowed to occupy then 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."

b) It must have been created by a statute or by the Constitution itself: A writ of quo warranto
can be issued when the appointment is contrary to statutory rules.

c) The office must be of a substantive character, i.e., an office independent in title, in the case
of R v. Speyer14, the word 'substantive' was interpreted to mean, 'an office independent in
title,' as distinguished from that of a deputy or servant, and that, accordingly, quo warranto
would be issued even where an office is held at the pleasure of the State, provided the office
is of a permanent character.

Of course, where there is no allegation that the person was not qualified to hold the office,
quo warranto would not lie on the mere ground that the pleasure of the appointing authority
was exercised improperly.

d) The respondent must have asserted his claim to the office: An application is premature
until the respondent has assumed the office or asserted his claim to it.

13
Ex parte Richards(1878) 3 QBD 368.
14
R v. Speyer(1916) 1 KB 595.

Page 13
 'Writ of Quo Warranto'

e) The respondent is not legally qualified to hold the office or to remain in the office, or some
statutory provision has been violated in making the appointment, which cannot be cured as an
'irregularity', so that his title to the office becomes invalid or without legal authority. In other
words, the invalidity of the appointment may arise not only from want of qualifications, but
also from the violations of such legal conditions or procedure for appointment as are
mandatory and as a result of which the appointment becomes void, eg., want of government
sanction, or the appointing authority not being competent etc.

In short, quo warranto will not be issued unless there is a clear infringement of provisions
having the force of law, or some provision of the Constitution itself.In N. Kannadasan v. Ajay
Khose15, it was held that quo warranto could be issued in cases where the procession
machinery relating to consultation is not fully complied with. So, basically it differs from
case to case, and all the requisites need to be followed , for this writ to apply to.

ELECTIONS AND WRIT OF QUO WARRANTO

In exercising this extraordinary power relating to elections, the court is usually guided by the
following considerations:

a) The court must be reluctant to interfere with elections, except on the clearest and strongest
grounds. An election is a luxury which a democracy cannot be expected to indulge in too
frequently, and the court should be loath to interfere with the decision of the people merely
on technical grounds, and particularly when provisions are made in the statute to remedy
irregularities. The matter would, however, be entirely different where: (i) there is any corrupt
practice which would materially affect the result of the election; (ii) the election is held
without any authority of law; (iii) there is such an irregularity which would result in the
people not having been able to express their views properly;(iv) the respondent suffered from
a statutory disqualification at the date of the election, or; (v) the structural roll or the
delimitation of constituencies is made in contravention of statute, so that a considerable
member of voters become disenfranchised.

15
N. Kannadasan v. Ajay Khose(2009) 7 SCC 1.

Page 14
 'Writ of Quo Warranto'

In short, the Courts would grant relief where the defect goes to the root of the matter as
distinguished from a mere irregularity. In Lakhan Mahto v. State of Bihar16, election to a
Gram Panchayat was set aside on a writ petition on the ground that it was held in violation of
certain mandatory rules and so the election was a nullity and there was no election in the eye
of law.

WHO MAY APPLY FOR QUO WARRANTO?

IN RELATION TO A PUBLIC OFFICE

In England: The principle laid down in the case of R v. Speyer17 is followed. Any private
person may apply for quo warranto in the matter of a public office, for every person must
necessarily have an interest in the matters which concern the public government. According
to Wade, "the old procedure by information was available to private persons but subject to
the discretion of the court. A private prosecutor brought the best known modern case, in
which it was unsuccessfully claimed that two foreign-born Privy Counselors were
disqualified from membership; the court holding that the Naturalisation Act, 1870 had
repealed the disqualification imposed by the Act of Settlement, 1700. The modern tendency
has been to extend the remedy, subject to the discretion of the court to refuse it to assistance
from the court. He is sometimes called the relator, although he does not have to obtain the
leave of the Attorney General."

Since the primary object of the writ of quo warranto is to shield the sovereignty of the Crown
from invasion and to prevent abuse of public office by an usurper, every subject is deemed to
be interested and may institute quo warranto proceedings. What is the question is the right of
the non-applicant to hold the office and the order that is passed is an order ousting him from
that office.An important limitation is imposed when a person comes only as a realtor without
having any personal interest in the matter. He is not allowed to question the validity of the
law under which an appointment has been made or an election has been held.

16
Lakhan Mahto v. State of BiharAIR 1974 Pat 130.
17
R v. Speyer(1916) 1 KB 595.

Page 15
 'Writ of Quo Warranto'

In India: It was held in the case of Nesamoni v. Varghese18, that "in a proceeding for a writ
of quo warranto to test the validity of appointment to a public office, the applicant does not
seek to enforce any right of his as such, nor does he complain of non-performance of any
duty towards him. What is in question is the right of the non-applicant to hold the
office.Hence, it is not necessary in such a case that the applicant must have some personal
interest in the matter."

Even a busy-body may apply for issuance of a writ of quo warranto. A petition for quo
warranto is maintainable at the instance of any person although he is not personally aggrieved
or interested in the matter.

In the case of B.R. Kapoor v. State of Tamil Nadu19, the question was whether the Chief
Minister of Tamil Nadu was disqualified to be a Chief Minister since she was convicted by a
criminal court. Application for quo warranto was filed under Art. 32 before the Hon’ble
Supreme Court. It was therefore, contended that since no fundamental right of the petitioner
was affected, the petition under Art. 32 is not maintainable. The said contention was rejected.
It was observed that, "We are not impressed by the submissions that the writ petition for quo
warranto filed in this court is outside our jurisdiction because no breach of fundamental right
has been pleaded therein. Breach of Art.14 is averred in at least the lead petition filed in this
court. This court has, therefore, jurisdiction to issue a writ of quo warranto."

In Calcutta Gas Co. v. State of West Bengal20, it was observed that the right that can be
enforced under Art. 226 should ordinarily be personal or individual right of the petitioner
himself, though in the case of some of the writs like habeas corpus or quo warranto this rule
may have to be relaxed or modified.

Though the rule is that any person may challenge the usurpation of public office, the court
must be satisfied that the person so applying is bona fide and there is a necessity in public
interest to declare judicially that there is usurpation of public office. If it is found that the
petition is not bona fide and the applicant is a mere tool in the hands of others, he cannot
claim the remedy. A proceeding for quo warranto is thus, an exception to the general rule that
only a person who has been individually aggrieved can apply under Art. 226 because the

18
Nesamoni v. VargheseAIR 1952 TC 66(67).
19
B.R. Kapoor v. State of Tamil NaduAIR 2001 SC 3435.
20
Calcutta Gas Co. v. State of West BengalAIR 1962 SC 1044.

Page 16
 'Writ of Quo Warranto'

object of quo warranto is not to establish any right of the applicant but to demolish the right
of the non-applicant to hold the office.

QUO WARRANTO, A DISCRETIONARY RELIEF

Quo warranto is a discretionary relief and is not granted as a matter of course. The power is,
accordingly, used by the court on principles similar to those which govern the issue of
injunction, having regard to all the circumstances of the case, including the conduct and
motives of the parties. If an information in the nature of quo warranto is not issued, an
injunction in lieu of it would not be granted as a matter of course. It is in the discretion of the
court to refuse or grant it according to the facts and circumstances of the case. The court
would inquire into the conduct and motives of the applicant and the court might in its
discretion decline to grant a quo warranto information where it would be vexatious to do so
or where the information would be futile in its results or where there is an alternative remedy
which is equally appropriate and effective. A writ of quo warranto will not be issued to
vindicate private rights. The court would also inquire into the motives and conduct of the
applicant, for delay or laches on his part and the public interest to be served or damaged by
granting or refusing the prayer. It may also be refused where there has been a mere
irregularity or technicality without causing any material injury.

The Court may thus, refuse quo warranto-

(a) Where it would be vexatious: Vexatious nature of the proceeding is a ground to refuse
relief. Where the relief sought for is already agitated and has attained finality, to reagitate the
same in another name was held to be vexatious and contempt proceedings was initiated
against the advocate and punished.21

(b) Where it would be futile in its results, e.g. where the respondent has ceased to hold the
office, the appointment of which has been questioned in the proceeding; or where even after
the impugned appointment is quashed, he may be reappointed to the same post or he may
continue to hold the post by virtue of another office.

(c) Where there has been irregularity in election to an office which has not affected the result
of the election and there is bad faith.
21
S.K. Sundaram, In Re, AIR 2001 SC 2374.

Page 17
 'Writ of Quo Warranto'

(d) Where the result of granting a quo warranto in the matter of election to a corporate office
would be to disturb the peace and quiet of the corporation, unless the illegalities brought to
the notice of the court are grave and manifest, as distinguished from the breach of technical
rules.

(e) Where the appointment is barred by res judicata.

(f) Where the petitioner has an effective alternative remedy.

(g) where the petitioner was actuated by ill-will or malice or ulterior motive.

(h) Where the allegations made in the petition have no factual foundation or about which the
petitioner has no personal knowledge.

(i) If the post held by the incumbent is not of ‘sensitive public importance’ and the incumbent
has been discharging the functions continuously for over a long period, then too it would be
quashed.

Page 18
 'Writ of Quo Warranto'

CONCLUSION

Quo warranto means, 'by what authority'.Originally, the writ of quo warranto was a writ of
right for the King against the subject whoclaimed or usurped any office, franchise, liberty or
privilege belonging to the Crown, to inquireby what authority he supported his claim, in order
to determine the right. Edward I used thiswrit to prevent encroachment on his rights and
prerogatives.Thus, quo warranto was a weapon in the hands of the king against the usurpation
of aprerogative of the Crown, but since long it had been extended beyond that limit and it had
beenused by private suitor also.

The writ of quo warranto can be issued against the holder of a public office. The writ calls
uponhim 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
theauthority 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 inIndia have followed principles as well as limitations as have been well established in
England .

It is a writ of technical nature issued against a usurper of an office or, against a person who
isentitled to make an appointment to that office. What worked in the mind of the
appointingauthority in making the impugned appointment is irrelevant otherwise the holder
of officewould be at a great disadvantage since he is simply called upon to show his authority
to holdthe 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 inquireby what authority he
supported his claim, in order that the right to the office might be determined. It also lay in
case of non-user, abuse, or long neglect of a franchise.

Page 19
 'Writ of Quo Warranto'

BIBLIOGRAPHY

BOOKS:
 Arvind P. Datar, "Commentary on the Constitution of India", Volume 1, 2nd Edition,
2007, Wadhwa, Nagpur
 S.P. Sathe, "Administrative Law", 7th Edition, 2008, Lexis Nexis Butterworths,
Wadhwa and Company Law Publishers, Nagpur.
 M.P. Jain and S.N. Jain, "Principles of Administrative Law", 6th Enlarged Edition,
2007, Wadhwa and Co. Law Publishers, Nagpur.
 I.P Massey, "Administrative Law", 6th Edition, 2005, Eastern Book Company,
Lucknow.
 Jagdish Swarup, "Constitution of India", Volume 2, 2nd Edition, 2007, Modern Law
Publications
 BhagbatiProsad Banerjee and Bhaskar Prosad Banerjee, "Judicial Control of
Administrative Action", 3rdEdition, 2001, Wadhwa and Company Law Publishers,
Nagpur.
 M.P. Jain, "Indian Constitutional Law", Volume 1, 5th Edition, 2003, Wadhwa
Nagpur
WEBSITES:

 http://www.researchgate.net/
 http://www.constitution.org/
 http://www.legalserviceindia.com/

Page 20