BANARAS HINDU UNIVERSITY

FACULTY OF LAW

ADMINISTRATIVE LAW ASSIGNMENT

ON

“WRIT OF QUO WARRANTO”

SUBMITTED BY : SUBMITTED TO:

MAYANK DWIVEDI ASST. PROF. CHANDRANATH SINGH

B.A. LL.B. (6TH SEM)

ROLL NO. 32 REMARKS:

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 ACKNOWLEDGEMENT

Firstly, I would like to thank my teacher, Mr. Chandranath Singh for having provided me with
the inspiration and guidance for this project. Without his help this project wouldn‟t have been
possible. I would also wish to thank our Dean who constantly exhorts us to deliver our best at
every level. I would also express my gratitude towards my seniors who were a source of
constant support and inspiration. Lastly, yet equally importantly, I am grateful to my family
and my friends for supporting me all the way through the making of this project.

MAYANK DWIVEDI

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 TABLE OF CONTENTS

S.No. TOPIC Page No.

1. Introduction 4

2. Historical development 5

3. Authority under Indian Constitution 6

4. Condition for the grant of quo warranto 8

5. Locus standi for the writ of quo warranto 9

6. Important case laws 11

7. Conclusion 14

8. Bibliography 15

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 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 to 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

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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

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 writ 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

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
4
Rex v. Marsden, 3 burr 1817

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

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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.

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 habeas corpus, mandamus, certiorari,

prohibition and quo warranto by the Supreme Court and the High courts. The jurisdiction of

the Supreme Court is limited only to the enforcement of fundamental rights, while the High

Courts can issue writs not only for the enforcement of fundamental rights but also for other

purposes.

Quo warranto means “by what warrant or authority”. It is a judicial order issued by a

Supreme Court or a High Court by which any person, who occupied or usurps an independent

public office or franchise or liberty, is asked to show by what right he claims it, so that the

title to the office, franchise or liberty may be settled and any unauthorized person ousted.

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 function 6 , 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

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

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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.

8
72 Cal. W.N. 50

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 Condition For The Grant of Quo Warranto

1. Office must be a public office

In Anand Behari v. Ram Sahai9 the court held that a public office is one which is created by

the Constitution or a statute and the duties of which must be such in which the public is

interested. In this case, it was held that the office of a Speaker of the Legislative Assembly is

a public office. In G.D. Karkare v. T.L. Shevde10, it was held that the office of the Advocate

General is a public office. In the same manner, the post of a manager of corporation

incorporated under the Companies Act cannot be held to be a public office.11 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.12 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. Public Office must be substantive in nature

A substantive office is one which is permanent in character and is not terminated at will. In

R. v. Speyer13, the word “Substantive” was interpreted to mean an “office independent of

title”. Therefore, quo warranto would be granted even when the office is held at the pleasure

of the State provided it is permanent in character. In other words, the official must be an

9
AIR 1952 Mad 31
10
AIR 1952 Nag 330
11
West Bengal Industrial Development Corporation Ltd. v. West Bengal Industrial Development Corporation
12
Nirmal Kumar v. B.K. Basu
13
(1916) 1 KB 595 (DC)

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independent official and not merely one discharging the functions of a deputy or servant at

the pleasure of another office.

3. The person must be in a actual possession of the office

Mere declaration that a person is elected to an office or mere appointement of person to a

public office is not sufficient for the issue of quo warranto unless such person actually
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accepts such office .

4. The office must be held in contravention of law

There must be a clear violation of law in the appointment of a person to a public office. If

there is a mere irregularity, quo warranto will not lie. In State of Assam v. Ranga

muhammad15, the court found the transfer and posting of two district judges contrary to law;

but did not issue quo warranto, as it was a case of mere irregularity that did not makr thr

occupation of office wrongful.

Locus Standi For The Writ of Quo Warranto

The proposition that a writ can be issued on the petition of a person whose right are adversely

affected has no application to the 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.16 However, he must not be a man of straw set up by anyone. For

example: in order to challenge a municipal office, the person must at least be the resident of

that area where the municipality governs.

14
Puranlal v. P.C. Ghosh, AIR 1970 Cal 118
15
AIR 1967 SC 903
16
G.V. Rao v. Govt. of A.P., AIR 1966 SC 828

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Like any other extraordinary remedy, quo warranto is also a discretionary remedy. It can be

refused on the ground of unreasonable delay. Therefore, when a person has held office for a

long time without challenge, the writ may be refused. However, in K. Bheema Raju v. Govt.

of A.P.17 the court remarked that in a matter which involves a fundamental right to a public

office and violation of legal procedure to be adopted in the matter of appointment to a public

office, the delay should not deter the court in granting the relief and rendering justice because

the usurper‟s continuance in office give cause of action each day and every hour till he is

ousted. Furthermore, a usurper does not cease to be one by lapse of time.18

The writ may also be refused if there is an adequate alternate remedy. Therefore, in V.D.

Deshpande v. State of Hyderabad 19 , the court refused the writ against Members of

legislatures who had become disqualified since they held office of profit, as Article 192 of the

constitution provide an adequate remedy. However, in State of Haryana v. Haryana Coop.

Transport Ltd.20 the SC issued a writ against the appointment of a presiding officer of a

Labour Court on the ground that officer did not possess the prescribed qualifications, holding

that the remedy provided under Section 9(1) of the Industrial Disputes Act, 1947 cannot

detract the High court from exercising its jurisdiction to issue the writ under Article 226 of

the Constitution.

In cases where the issue of writ would be futile in its result, the court may refuse it. The

jurisdiction of the court to issue quo warranto can be exercised only when the appointment is

contrary to statutory rules. While issuing such a writ, court cannot consider the respective

impact of the candidates and other such factors.21

17
AIR 1981 AP 24, 29
18
Pushpa Devi v. M.L. Wadhawan, (1987) 3 SCC 367
19
AIR 1955 Hyd 36
20
(1977) 1 SCC 271
21
H.C. of Gujrat v. Guj. Kishan Mazdoor Oanchayat, (2003) 4 SCC 712.

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 Important Case Laws

University of Mysore v. C. D. Govinda Rao 22

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

22
AIR 1965 SC 491

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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.

G.D. Karkare v. T.L. Shevde 23

The petitioner applied to the High Court for the issue of a writof 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 daythe 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

notnecessarily 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 quowarranto would have been vexatious, the High

Court shall in its discretion refuse toissue a writ of quo warranto. The Calcutta High Court has held that

acquiescence on thepart 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 24

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

23
AIR 1952 Nag 333
24
AIR 1954 Pat 297

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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.

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 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.

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 BIBLIOGRAPHY

Books-

1. M.P. Jain, The Constitutional of India Vol.1 & 2, New Delhi: India Law House, 2001.

2. Basu, Durga Das, Commentary on the Constitution of India, Calcutta: Debidas Basu,

1989

3. Bakshi, P.M., The Constitution of India, Delhi: Universal Law Publishing, 2002

4. Pandey , J.N., Constitutional Law of India, Allahabad: Central Law Agency, 2003

5. Datar, Arvind P., Datar on Constitution of India, Agra : Wadhwa & Co.,2001.

Acts-

The Constitution of India, 1950

WEBLIOGRAPHY

1. http://indiacode.nic.in

2. http://books.google.co.in

3. http://indianconstitution.in

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