Abhishek
Writ petition: Quo-Warranto
Abhishek Rathee 5 Mar 2020

Writ petition: Quo-Warranto

QUO WARRANTO: A CRITICAL ANALYSIS

Introduction

The literal meaning of quo-warranto is “by what authority”

Initially, the quo warranto was a writ of law for the King against the subject who asserted or usurped any office, franchise, rights or privilege belonging to the Crown to ask by what basis he accepted his argument to determine the right. Edward I used this writ to keep his rights and privileges from being infringed.

Therefore, quo warranto was a tool in the King's hands against the usurpation of a Crown prerogative, but it had long been extended beyond that point and used by private suitors as well.

”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”. Says De Smith

You will grant the writ of quo warranto against the holder of a public office. The writ is increasingly calling him to trial under what jurisdiction he holds the office. If the occupant does not have authority to hold the office, he may be disqualified from enjoying it. Unless, on the other hand, he has the authority to hold it, the quo warranto writ protects him against being stripped of the same.

As well as being well known in England, India has adopted the principles and limitations. It is a letter of technical character given against an office usurper or against a person who has the right to make an appointment to that office.

Historical Development

Initially, a letter of quo warranto was only available for use by the king to protect the king from the violation of the royal prerogative or the privileges, franchise or independence of the crown, and knowledge in the existence of quo warranto, which had taken the place of the old letter of quo warranto, was similarly limited in the usefulness as a remedy. It was considered a cilil writ.

Under section 9 of the Law on the Administration of Justice, knowledge in the nature of Quo Warranto was abolished in 1938 and there was an injunction to prohibit any person from working in an office where he is not entitled to act

In the form it was a criminal proceeding and it retained this dimension for some time after the writ was replaced by the quo warranto information inasmuch as there was also a fine, albeit nominal, in addition to trying the civil rights to seize the franchise or evict the wrongful owner

Now it is stipulated by Section 48 of the 1925 Supreme Court of Judicature Act that trials in quo warranto shall be deemed to be civil proceedings, whether for appeal purposes or otherwise.

Quo Warranto 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 considered an appropriate and sufficient remedy for the determination of the right or title to a public office and the dismissal of one who unlawfully usurped or intruded into that office. The object of proceeding in quo warranto against a public officer is to decide whether he is entitled to hold office and exercise his duty, and the quo warranto provides for a judicial inquiry into this matter.

Quo Warranto has been considered a discretionary prerogative writi and under certain conditions, it can be declined. Therefore, the writing of quo warranto is, of course, not a writing, it is a discretionary writing, and the High Courts may refuse to write on the grounds of delay and amusement, acquiescence, waiver, availability of alternative remedies or where the office usurper has ceased to hold the offense by the time written petition is lodged.

In the Sasibhushan Roy v. Pramathnath Banerjee case, the Calcutta High Court held that the specific crime must be of a public nature in order to lie in the writ of quo warranto, i.e. includes a delegation of some of the government's sovereign roles, executive, legislative or judicial, to be exercised by it in the public interest. Such a public offense must be essentially real, not terminable at will. The officer who occupies the office must be autonomous and not just one who performs the duties of a deputy or assistant at the behest of another officer who must be in the office's actual position. Mere declaration that a person is appointed to an office or mere appointment to a particular office is not enough. He must accept such office. The office must be held in contravention of law and if there is a clear irregularity in the appointment, writ of quo warranto will not lie. Quo warranto to lie too when the legitimacy of the individual occupies the office but later acquires a disqualification. The above conditions for granting a writ of quo-warranto will co-exist.

Limitations

1.      Offence must be of public character

Writ of quo warranto is issued only in respect of a public offence. A lawsuit is not lying against a private corporation offence. It can not be assumed that the post of a corporate manager incorporated under the Companies Act is a public office. Even the writ of quo warranto can not go against the management board of a private educational institution not formed by statute or statutory-force law.

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.      No collateral attack

One significant drawback in this regard is that the appointment can not be collaterally attacked

 

 

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