Writ Petitions are filed before the Allahabad High Court praying for writ, order, or direction in the nature of one of the following writs, namely, mandamus, certiorari, habeas corpus, prohibition, and quo warranto.
In this article, we deal with the writ of quo warranto in detail. It is often witnessed that the writ of quo warranto is misconceived, as a result, petitions are dismissed, which in essence is a wastage of precious time and resources of the litigant and the Hon’ble Court.
What is the Writ of Quo Warranto?
The Writ of Quo Warranto is a writ which can be issued by the Supreme Court or the High Court against a person who has usurped an independent substantive public office. In the matter of Quo Warranto, the jurisdiction of the Courts is a very limited one.
A Writ of Quo Warranto can only be issued when three conditions are satisfied, i.e.
(1) The appointment is contrary to the Statutory Rules;
(2) The holder of the post is a Usurper; and
(3) The post in question is a ‘Public Office’.
What is Public Office?
In the Black’s Law Dictionary, 6th edition, the term “Public Office” has been explained as follows:
“Public Office, Essential characteristics of ”Public Office’ are (1) authority conferred by law (2) fixed tenure of Office and (3) power to exercise some portion of sovereign functions of government; key element of such test is that “Officer” is carrying out sovereign function. Spring v. Constantino, 168 Conn.563,362 A…2nd 871, 875. Essential elements to establish public position as ”Public Office’ are position must be created by Constitution, Legislature, or through authority conferred by legislature, portion of sovereign power of government must be delegated to position, duties and powers must be defined, directly or impliedly, by legislature or through legislative authority, duties must be performed independently without control of superior power other than law, and position must have some permanency and continuity. State ex rel.Eli.Lily and Co. v Gaertner, Mo.App,619 S.W, 2D , 761, 764.”
The Hon’ble Apex Court has laid down certain ingredients which need to be established to hold an office as a public office. These ingredients are as follows:
a) Position must be created by the constitution, the legislature or an authority conferred by the legislature.
b) A portion of the sovereign power of the government must be delegated to such a position.
c) Duties and powers must be defined directly or impliedly.
d) Duties must be performed independently without control or superior power other than law.
e) Position must have some permanency and continuity.
What is the position regarding Locus Standi in a writ of quo warranto?
In case of the writ of Quo Warranto, the rule of locus standi is relaxed compared to the cases of writ of Certiorari or Mandamus. In the case of Gadde Venkateswara Rao v. Government of Andhra Pradesh and Ors, the Hon’ble Apex Court has held as follows:
“The right that can be enforced under Article 226 also shall ordinarily be the 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.”
However, the objection of locus standi can be taken in the case of the writ of quo warranto. It is not the case that anybody can file a petition for a writ of quo warranto challenging any appointment on any post in the country even though he may not have any direct connection or grievance, or interest in the matter.
In the case of University of Mysore Vs Govinda Rao, the Hon’ble Apex Court has held that the Quo-warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty. If the enquiry 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 from that Office.
To conclude, it is pertinent to note an important observation made by the Hon’ble Supreme Court in Statesman (Private) Ltd vs H. R. Deb & Ors; AIR 1968 SC 1495 that –
“The High Court in a quo warranto proceeding should be slow to pronounce upon the matter unless there is a clear infringement of the law”.