Writ of Quo warranto : Its significance with respect to Administrative Law

CHAPTER I
I (A) Introduction
Quo Warranto is an ancient common law remedy. It is a prerogative writ issued against an
intruder or usurper of a public office. It was used by the Crown against a person claiming an
office, franchise or liberty. In case his claim was not founded or there was misuse or abuse of
office, he was to be removed. The term Quo Warranto means by what authority or warrant. It
is a prerogative writ requiring the person to whom it is directed to show what authority they have
for exercising some right or power they claim to hold. It is a notice of demand, issued by a
person to the respondent claiming some delegate power, and the filed with a court of competent
jurisdiction. 1

Administrative law has greatly demarcated the checks, balances and permissible area of an
exercise of power, authority and jurisdiction over administrative actions enforced by the any
State, Governmental agencies and instrumentalities defined under Article 12 of the Constitution
of India. And the judiciary is dynamically carving the principles and exceptions, while making
the judicial review of administrative actions.

The administrative law is that branch of law that keeps the governmental actions within the
bounds of law or to put it negatively, it prevents the enforcement of blatantly bad orders from
being derogatory.

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 have to
be curbed, if they are misused or abused. The socio-politic Institution need not cry, if the courts
do justice and perform the substantial role. That is the essence of justice. It is submitted, the
trend is to read the 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

1
http://lex-warrier.in/2016/01/writ-of-quo-warranto-in-india/

1
Writ of Quo warranto : Its significance with respect to Administrative Law

the rule of law. Today the Government is the provider of social services; new form of property
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.2
Quo warranto originated as judicial means of asserting sovereign right. It sought to protect public
interest through agents of the Crown. In theory, the King was considered the fountain of honour,
office or privilege, and whenever a subject undertook to exercise public office, franchise or
liberty, he could be called upon by the Crown through quo warranto that compelled him to show
his title if he failed to do so , an order would be passed against him foudndation to the rule was
that all offices were the gift of King, they were deemed to be possessed by him and until his
grant is shown, there could be no presumption that he had parted with uch powers oe invested his
subjects ith the right to exercise any part of the Royal Preogrative.3

I (B) Research methodology

PROBLEM

The project research seeks to analyze the significance of writ of quo warranto with respect to
administrative law.

RATIONALE

The rationale behind this research is to study the role of quo warranto with respect to
Administrative Law.

OBJECTIVES

To study about the various writ under the constitution

To study about the writ of quo warranto.
To study about role of quo warranto under the Administrative Law.

2
http://www.legalserviceindia.com/article/l402-Role-Of-Writs-In-The-Administrative-Law.html

3
State v. Allen , 57 SW182

2
Writ of Quo warranto : Its significance with respect to Administrative Law

HYPOTHESIS

The writ of quo warranto states that the public has right to move to the High Court for the further
procedure. The writ also pay important role on the Administrative Law.

NATURE OF STUDY

The nature of the study in this project is doctrinal and is primarily descriptive and analytical.

SOURCES OF DATA

This project is largely based on secondary & electronic sources of data. Books, case laws,
journals & other reference as guided by faculty of Jurisprudence are primarily helpful for the
completion of this project

REVIEW OF LITERATURE

MC Jain Kagzi, The Indian Administrative Law ,6th Edn., Universal Law Publishing Co. Pvt. Ltd.

The role of writs is the portion which has been referenced from this book by MC Jain Kagzi which
remains a very authentic book on the subject matter of Administrative Law and deals with the subject
matter of Administrative Law's origins and the present status of the same.

C.K Takwani, Lectures on Administrative Law, 5th Edn., Eastern book Company

This book on Administrative Law in the most coherent and logical manner. The book discusses all the
major aspects of Administrative Law, like basic constitutional principles, delegated legislation, natural
justice, administrative tribunal, judicial review and their application to the administrative machinery of
India and the portion on Quasi-Judicial Bodies and Administrative Adjudicatory bodies in Chapter 3 is
inspired from the same.

Dr. U.P.D.Kesari on Administrative Law,21st Edn., Central Law Publications

A classic work regarded as on authority on the subject. The edition has been updated with new
materials. The doctrine of Judicial Review has been dealt with exhaustively in the book. New
doctrines, such as doctrines of estoppel, proportionality, legitimate expectation etc. have been
discussed. Judicial remedies such as prerogative remedies of writs, constitutional remedies etc.

3
Writ of Quo warranto : Its significance with respect to Administrative Law

have been highlighted. This book is noteworthy for its treatment of case law. On each topic, all
relevant decisions of Indian Courts have been discussed with the relevant English and American
decisions.
In my present research, the nature and scope of Quo warranto has been taken from the book of
Dr. U.P.D. Kesari.

CHAPTERISATION

Chapter I has introduced the research project & includes the research methodology. Chapter II
contains a brief idea about the writ under the Indian Constitution. This part includes the writ of
habeas corpus, the writ of Certiorari, writ of mandamus and the writ of quo warranto. Chapter III
gives a broad idea about the writ of quo warranto. This part talks about the nature and definition
of quo warranto, case laws of literal rule. Chapter IV talks about the role of quo warranto under
Administrative Law & a few Indian Cases.

LIMITATION OF STUDY

This research is limited to the study to relevance of writ of quo warranto in India. This project
doesnt cover the role of other writ under administrative law .

CONTRIBUTION OF RESEARCH

This research seeks to highlight the significance of writ of quo warranto under administrative
law.

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Writ of Quo warranto : Its significance with respect to Administrative Law

CHAPTER-2 Writs - Provisions in Indian Constitution

The Indian Constitution empowers the Supreme Court to issue writs for enforcement of any of
the fundamental rights conferred by Part III of Indian Constitution under Article 32. Thus the
power to issue writs is primarily a provision made to make available the Right to Constitutional
Remedies to every citizen. The Right to Constitutional Remedies, as we know, is a guarantor of
all other fundamental rights available to the people of India.

In addition to the above, the Constitution also provides for the Parliament to confer on the
Supreme Court power to issue writs, for purposes other than those mentioned above.

Similary High Courts in India are also empowered to issue writs for the enforcement of any of
the rights conferred by Part III and for any other purpose.

Writs In Indian Constitution

Article 226 empowers the High Courts to issue writs in the nature of habeas corpus, mandamus,
prohibition, certiorari and quo warranto or any of them for the enforcement of any of the
fundamental rights or for any other purpose. It has been held that the words for any other
purpose mean for the enforcement of any statutory or common law rights. The jurisdiction of
the High Courts under Art 226 is wider than that of the Supreme Court under Art 32. The
jurisdictions under Art 32 and 226 are concurrent and independent of each other so far as the
fundamental rights are concerned. A person has a choice of remedies. He may move either the
Supreme Court under Art 32 or an appropriate High Court under Art 226. If his grievance is that
a right other than a fundamental right is violated, he will have to move the High Court having
jurisdiction. He may appeal to the Supreme Court against the decision of the High Court. After
being unsuccessful in the High Court, he cannot approach the Supreme Court under Art 32 for
the same cause of action because as said earlier, such a petition would be barred by res judicata.
Similarly, having failed in the Supreme Court in a petition filed under Art 32, he cannot take
another chance by filing a petition under Art 226 in the High Court having jurisdiction over his
matter because such a petition would also be barred by res judicata. The High Courts
jurisdiction in respect of other purpose is however, discretionary. The courts have laid down
rules in accordance with which such discretion is to be exercised.

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Writ of Quo warranto : Its significance with respect to Administrative Law

The jurisdiction of the High Court under Art 226 cannot be invoked if: the petition is barred by
res judicata; If there is an alternative and equally efficacious remedy available and which has not
been exhausted. If the petition raised questions of facts which are disputed; and if the petition
has been made after an inordinate delay.

These rules of judicial restraint have been adopted by our courts from the similar rules developed
by the English courts in the exercise of their jurisdiction to issue the prerogative writs.

Where a civil court had dealt with a matter and the High Court had disposed of an appeal against
the decision of the civil court, a writ petition on the same matter could not be entertained. This
was not on the ground of res judicata as much as on the ground of judicial discipline, which
required that in matters relating to exercise of discretion, a party could not be allowed to take
chance in different forums. Withdrawal or abandonment of a petition under Art 226/227 without
the permission of the court to file a fresh petition there under would bar such a fresh petition in
the High Court involving the same subject matter, though other remedies such as suit or writ
petition under Art 32 would be open. The principle underlying Rule 1 of Order 23 of the CPC
was held to be applicable on the ground of public policy.

It is a general rule of the exercise of judicial discretion under Art 226 that the High Court will
not entertain a petition if there is an alternative remedy available. The alternative remedy
however, must be equally efficacious. Where an alternative and efficacious remedy is provided,
the Court should not entertain a writ petition under Art 226. Where a revision petition was
pending in the High Court challenging the eviction degree passed against a tenant by the court of
the Small Causes, it was held that the High Court should not have entertained a writ petition filed
by the cousins of the tenants. The petitioners should have exhausted the remedies provided under
the Code of Civil procedure before filing the writ petition. Petitions were dismissed on the
ground of the existence of an alternative remedy in respect of elections to municipal bodies or
the Bar Council. When a law prescribes a period of limitation for an action, such an action has to
be brought within the prescribed period. A court or a tribunal has no jurisdiction to entertain an
action or proceeding after the expiration of the limitation period. It is necessary to assure finality
to administrative as well as judicial decisions. Therefore, those who sleep over their rights have
no right to agitate for them after the lapse of a reasonable time. Even writ petitions under Art 226

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Writ of Quo warranto : Its significance with respect to Administrative Law

are not immune from disqualification on the ground of delay. Although the law of limitation does
not directly apply to writ petitions, the courts have held that a petition would be barred if it
comes to the court after the lapse of a reasonable time. This is however, not a rule of law but is a
rule of practice. Where the petitioner shows that illegality is manifest in the impugned action,
and explains the causes of delay, the delay may be condoned.

Writ of Habeas Corpus

Habeas corpus is a prerogative writ, which was granted to a subject of His Majesty, who was
detained illegally in jail. It is an order of release. The words habeas corpus subi di cendum
literally mean to have the body. The writ provides remedy for a person wrongfully detained or
restrained. By this a command is issued to a person or to jailor who detains another person in
custody to the effect that the person imprisoned or the detenu should be produced before the
Court and submit the day and cause of his imprisonment or detention. The detaining authority or
person is required to justify the cause of detention. If there is no valid reason for detention, the
Court will immediately order the release of the detained person.

The personal liberty will have no meaning in a constitutional set up if the writ of habeas corpus
is not provided therein. The writ is available to all the aggrieved persons alike. It is the most
effective means to check the arbitrary arrest by any executive authority. It is available only in
those cases where the restraint is put on the person of a man without any legal justification.

When a person has been subjected to confinement by an order of the Court, which passed the
order after going through the merits of the case the writ of habeas corpus cannot be invoked,
however erroneous the order may be. Moreover, the writ is not of punitive or of corrective
nature. It is not designed to punish the official guilty for illegal confinement of the detenu. Nor
can it be used for devising a means to secure damages. An application for habeas corpus can be
made by any person on behalf of the prisoner as well as by the prisoner himself, subject to the
rules and conditions framed by various High Courts. In A.D.M. Jabalpur v. Shivakant
Shukla4, it was observed that the writ of Habeas Corpus is a process for securing the liberty of
the subject by affording an effective means of immediate relief from unlawful or unjustifiable

4
1967 AIR 1207

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Writ of Quo warranto : Its significance with respect to Administrative Law

detention whether in prison or private custody. By it the High Court and the judges of that court
at the instance of a subject aggrieved command the production of that subject and inquire into the
cause of his imprisonment. If there is no legal justification for that detention, then the party is
ordered to be released.

Writ of Mandamus

A writ of mandamus is in the form of command directed to the inferior Court, tribunal, a board,
corporation or any administrative authority, or a person requiring the performance of a specific
duty fixed by law or associated with the office occupied by the person. Mandamus in England is
neither a writ of course nor a writ of right, but that it will be granted if the duty is in the nature
of public duty and specially affects the right of an individual provided there is no other
appropriate remedy.

The writ is issued to compel an authority to do his duties or exercise his powers, in accordance
with the mandate of law. The authority may also be prevented from doing an act, which he is not
entitled to do. The authority, against which the writ is issued, may be governmental or semi-
governmental, or judicial bodies. Its function in Indian Administrative Law is as general writ of
justice, whenever justice is denied, or delayed and the aggrieved person has no other suitable the
defects of justice. An order in the nature of mandamus is not made against a private individual.
The rule is now well established that a writ of mandamus cannot be issued to a private
individual, unless he acts under some public authority. A writ can be issued to enforce a public
duty whether it is imposed on private individual or on a public body.

The Court laid down that public law remedy mandamus can be availed of against a person when
he is acting in a public capacity as a holder of public office and in the performance of a public
duty. It is not necessary that the person or authority against whom mandamus can be claimed
should be created by a statute. Mandamus can be issued against a natural person if he is
exercising a public or a statutory power of doing a public or a statutory duty.

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Writ of Quo warranto : Its significance with respect to Administrative Law

Writ of Certiorari

Certiorari is a command or order to an inferior Court or tribunal to transmit the records of a

cause or matter pending before them to the superior Court to be dealt with there and if the order
of inferior Court is found to be without jurisdiction or against the principles of natural justice, it
is quashed. Certiorari is historically an extraordinary legal remedy and is corrective in nature. It
is issued in the form of an order by a superior Court to an inferior civil tribunal which deals with
the civil rights of persons and which is public authority to certify the records of any proceeding
of the latter to review the same for defects of jurisdiction, fundamental irregularities of procedure
and for errors of law apparent on the proceedings.

The jurisdiction to issue a writ of certiorari is a supervisory one and in exercising it, the Court is
not entitled to act as a Court of appeal. That necessarily means that the findings of fact arrived at
by the inferior Court or tribunal are binding. An error of law apparent on the face of the record
could be corrected by a writ of certiorari, but not an error of fact; however grave it may appear to
be.

Certiorari is thus said to be corrective remedy. This is, of course, its distinctive feature. The very
end of this writ is to correct the error apparent on the face of proceedings and to correct the
jurisdictional excesses. It also corrects the procedural omissions made by inferior courts or
tribunal. If any inferior court or tribunal has passed an order in violation of rules of natural
justice, or in want of jurisdiction, or there is an error apparent on the face of proceeding, the
proper remedy so through the writ of certiorari.

The Writ of Quo-Warranto

The word Quo-Warranto literally means "by what warrants?" or "what is your authority"? It is
a writ issued with a view to restrain a person from holding a public office to which he is not
entitled. The writ requires the concerned person to explain to the Court by what authority he
holds the office. If a person has usurped a public office, the Court may direct him not to carry out
any activities in the office or may announce the office to be vacant. Thus High Court may issue a
writ of quo-warranto if a person holds an office beyond his retirement age. Conditions for issue
of Quo-Warranto:

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Writ of Quo warranto : Its significance with respect to Administrative Law

1. The office must be public and it must be created by a statue or by the constitution itself.
2. The office must be a substantive one and not merely the function or employment of a
servant at the will and during the pleasure of another.
3. There must have been a contravention of the constitution or a statute or statutory
instrument, in appointing such person to that office.

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Writ of Quo warranto : Its significance with respect to Administrative Law

CHAPTER-3 WRIT OF QUO WARRANTO

Definition and Nature

The term quo warranto means by what authority. Whenever any private person wrongfully
usurps an office, he is prevented by the writ of quo warranto from continuing in that office.
The basic conditions for the issue of the writ are that the office must be public, it must have been
created by statute or Constitution itself, it must be of a substantive character and the holder of the
office must not be legally qualified to hold the office or to remain in the office or he has been
appointed in accordance with law.

A writ of quo warranto is never issued as a matter of course and it is always within the discretion
of the Court to decide. The Court may refuse to grant a writ of quo warranto if it is vexatious or
where the petitioner is guilty of larches, or where he has acquiesced or concurred in the very act
against which he complains or where the motive of the relater is suspicious.

As to the question that can apply for writ to quo warranto, it can be stated that any private person
can file a petition for this writ, although he is not personally aggrieved in or interested in the
matter. Ordinarily, delay and lashes would be no ground for a writ of quo warranto unless the
delay in question is inordinate. An unauthorized person issues the writ in case of an illegal
usurpation of public office the public office must be of a substantive nature.
The remedy under this petition will go only to public office private bodies the nature of quo
warranto will lie in respect of any particular office when the office satisfies the following
conditions:

The office must have been created by statute, or by the Constitution itself;
The duties of the office must be public nature.
The office must be one of the tenure of which is permanent in the sense of not
being terminable at pleasure; and
The person proceeded against has been in actual possession and in the user of
particular office in question.

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Writ of Quo warranto : Its significance with respect to Administrative Law

Another instance of granting the writ of quo warranto is where a candidate becomes subject to a
disqualification after election or where there is a continuing disqualification.

In cases of office of private nature the writ will not lie. In Jamalpur Arya Samaj Sabha v. Dr.
D. Rama, 5the High Court of Patna refuse to issue the writ of quo warranto against the members
of the Working Committee of Bihar Raj Arya Samaj Pratinidhi Sabha- a private religious
association. In the same way the writ was refused in respect of the office of a doctor of a hospital
and a master of free school, which were institutions of private charitable foundation, and the
right of appointment to offices therein was vested in Governors who were private an dont public
functionary.

It will not lie for the same reason against the office of surgeon or physician of a hospital founded
by private persons. Similarly, the membership of the Managing Committee of a private school is
not an office of public nature; therefore writ of quo warranto will not lie.

In Niranjan Kumar Goenka v. The University of Bihar, Muzzafarpur6 the Patna High
Court held that writ in the nature of quo warranto cannot be issued against a person not holding a
public office. Acquiescence is no ground for refusing quo warranto in case of appointment to
public office of a disqualified person, though it may be a relevant consideration in the case of
election.

When the office is abolished no information in the nature of quo warranto will lie. The
jurisdiction of the High Court under Article 226 is very vast and almost without any substantive
limits barring those such as territorial limitations.

Although the jurisdiction of the High Court is so vast and limitless, the courts have imposed
certain limits in their jurisdiction in order to be able to cope with the volume of litigation and
also to avoid dealing with questions, which are not capable of being answered judicially.

5
AIR 1954 Pat 297
6
AIR 1973 Pat 85

12
Writ of Quo warranto : Its significance with respect to Administrative Law

There are three types of limitations:

Those arising from judicial policy

Those which are procedural
Those because of the petitioner's conduct.

The Supreme Court has held that the extra ordinary jurisdiction should be exercised only in
exceptional circumstances.

It was held that the High Court was not justified in going into question of contractual obligations
in a writ petition. It was held that the jurisdiction under Article 226 should be used most
sparingly for quashing criminal proceedings. The High Court should interfere only in extreme
cases where charges ex facie do not constitute offence under the Terrorist and Destructive
Activities Act (TADA) It should not quash the proceedings where the application of the Act is a
debatable issue.

A legal proceeding during which an individual's right to hold an office or governmental privilege
is challenged.

In old English practice, the writ of quo warrantoan order issued by authority of the king
was one of the most ancient and important writs. It has not, however, been used for centuries,
since the procedure and effect of the judgment were so impractical.

Currently the former procedure has been replaced by information in the nature of a quo warranto,
an extraordinary remedyby which a prosecuting attorney, who represents the public at large, cha
llenges someone who has usurped a public office orsomeone who, through abuse or neglect, has
forfeited an office to which she was entitled. In spite of the fact that the remedy of quo waranto
is pursued by a prosecuting attorney in a majority of jurisdictions, it is ordinarily regarded as a
civil rather than criminal action. Quo warranto is often the only proper legal remedy; however,
the legislature can enact legislation or provide other form of relief.

Statutes describing quo warranto usually indicate where it is appropriate. Ordinarily it is proper

to try the issue of whether apublic office or authority is being abused. For example, it might be u
sed to challenge the unauthorized practice of a profession, such as law or medicine. In such
13
Writ of Quo warranto : Its significance with respect to Administrative Law

situations, the challenge is an assertion that the defendant is not qualified to hold the position she
claims a medical doctor, for example.

In some quo warranto proceedings, the issue is whether the defendant is entitled to hold the
office he claims, or to exercisethe authority he presumes to have from the government. In
addition, proceedings have challenged the right to the position of county commissioner, treasure,
school board member, district attorney, judge, or tax commissioner. In certain jurisdictions,quo
warranto is a proper proceeding to challenge individuals who are acting as officers or directors of
business corporations.

A prosecuting attorney ordinarily commences quo warranto proceedings; however, a statute may
authorize a private personto do so without the consent of the prosecutor. Unless otherwise provid
ed by statute, a court permits the filing of aninformation in the nature of quo warranto after an ex
ercise of sound discretion, since quo warranto is an extraordinaryexercise of power and is not to
be invoked lightly. Quo warranto is not a right available merely because the appropriate legaldoc
uments are filed. Valid reason must be indicated to justify governmental interference with the ind
ividual holding thechallenged office, privilege, or license.

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Writ of Quo warranto : Its significance with respect to Administrative Law

CHAPTER-4 ROLE OF WRIT IN ADMINISTRATIVE LAW

Administrative law has greatly demarcated the checks, balances and permissible area of an
exercise of power, authority and jurisdiction over administrative actions enforced by the any
State, Governmental agencies and instrumentalities defined under Article 12 of the Constitution
of India. And the judiciary is dynamically carving the principles and exceptions, while making
the judicial review of administrative actions.

The administrative law is that branch of law that keeps the governmental actions within the
bounds of law or to put it negatively, it prevents the enforcement of blatantly bad orders from
being derogatory.

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 have to
be curbed, if they are misused or abused. The socio-politic Institution need not cry, if the courts
do justice and perform the substantial role. That is the essence of justice. It is submitted, the
trend is to read the 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; new form of property
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.

Application of the Writ of Certiorari

The writ of Certiorari is basically issued against the statutory bodies exercising judicial or quasi
judicial powers. Such writ is issued against the authorities namely the government and the courts
or other statutory bodies who have power to determine and decide the lis between the parties. In
deciding such issues if the decision making order is passed without any authority or has passed
the order in exercise of such authority or has committed an error of law and facts the high court
is empowered to correct such error of the lower court or government authorities. Certiorari may
apply when the administrative or executive authority fails to observe their duty to act fairly with

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Writ of Quo warranto : Its significance with respect to Administrative Law

respect to the administrative functions. The writ of Certiorari may also be issued against a
subordinate tribunal even if the decision impugned is pronounced. A leading case of Ryots of
Garabandho v. Zamindar of Parlakimedi7, was the first decision on the writ of Certiorari.

Application of the Writ of Mandamus

The writ of mandamus is ordered when the statutory authorities who entrusted with the duties
fail to discharge its obligatory duty. It may be applied when the government authorities vested
with absolute powers fail to perform their administrative and statutory duties. In Ratlam
Municipal Council v. Vardichand8, on account of the public nuisance created in the area by the
corporation in not maintaining the drainage system and the dirty water stinking had clogged
around which obviously created nuisance at the hands of municipality for not discharging the
duties under the act. As a result the residents of Ratlam municipality moved the Sub-divisional
magistrate under section 133 of Code of Criminal Procedure, 1973 for abatement of nuisance and
the court issued the directions that, Judicial discretion when facts for its exercise are present has
a mandatory import. Therefore when the Sub-Divisional Magistrate, Ratlam, has before him
information and evidence which disclose the presence of public nuisance, considers it lawful to
remove such obstruction. This is a public duty implicit in the public power to be exercised on
behalf of the public and is pursuant to public proceeding.

Application of the Writ of Prohibition

The writ of Prohibition is issued essentially against the government or its authorities when they
are not conferred with the power or jurisdiction to decide the dispute. The court by virtue of this
power restrains the authority to exercise such powers which are not given to the authority.
Application of the Writ of Quo Warranto

The high Court would exercise the power of Quo Warranto against the public authority or
government who acts contrary to the provisions of the statute and restrains the authority or public
servant from usurping the public office on account of lack of qualification. It is a means of
asserting sovereign right. In Sonu Sampat v. Jalgaon 9Borough Municipality , If the

7
(1945) 47 BOMLR 525
8
1980 AIR 1622
9
(1957) 59 BOMLR 1088

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Writ of Quo warranto : Its significance with respect to Administrative Law

appointment of an officer is illegal, everyday that he acts in that office, a fresh cause of action
arises and there can be therefore no question of delay in presenting a petition for quo warranto in
which his very, right to act in such a responsible post has been questioned.

Quo Warranto writ is issued against the person of public who occupies the public seat without
any qualification for the appointment. It is issued to restrain the authority or candidate from
discharging the functions of public office. In University of Mysore v. Govinda Rao10,the
Supreme Court observed that the procedure of quo Warrato confers the jurisdiction and authority
on the judiciary to control executive action in making the appointments to public offices against
the relevant statutory provisions; it also protects a citizen being deprived of public office to
which he may have a right.

Application of the Writ of Habeas Corpus

The writ of Habeas Corpus is a writ issued in order to protect the liberty and freedom which is
conceived to be very vital. It is issued against the wrongful detention or confinement through the
police authority. By virtue of this writ the police authorities or other such statutory authorities are
empowered to bring the custody of the person who has been wrongfully detained by the court of
law. In the case of State of Bihar v. Kameshwar Singh 11it was stated that, the writ of Habeas
Corpus is in the nature of an order for calling upon the person who has detained or arrested
another person to produce the latter before the court, in order to let court know on what ground
he has been confined and to set him free if there is no legal justification for the imprisonment .
One of the telling ways in which the violation of that right can reasonably be prevented and due
compliance with the mandate of article 21 secured, is to mulct its violators in the payment of
monetary compensation.

10
Air 1965 (491)
11
AIR 1952 sc 352

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Writ of Quo warranto : Its significance with respect to Administrative Law

CHAPTER-5 SIGNIFICANCE OF QUO WARRANTO

Now as far as the role of the writs is concerned, let us go by illustration over the cases on
discretion. Conferment of discretionary powers has been accepted as necessary phenomena of
modern administrative and constitutional machinery. Law making agency legislates the law on
any subject to serve the public interest and while making law, it has become indispensable to
provide for discretionary powers that are subject to judicial review. The rider is that the Donnie
of the discretionary power has to exercise the discretion in good faith and for the purpose for
which it is granted and subject to limitations prescribed under the Act. The Courts have retained
their jurisdiction to test the Statute on the ground of reasonableness. Mostly, the courts review on
two counts; firstly whether the statute is substantively valid piece of legislation and, secondly
whether the statute provides procedural safeguards. If these two tests are not found, the law is
declares ultra vires and void of Article 14 of the Constitution.

Beside this, Courts control the discretionary powers of the executive government being exercised
after the statutes have come to exist. Once they come into existence, it becomes the duty of the
Executive Government to regulate the powers within limitations prescribed to achieve the object
of the Statute. The discretionary powers entrusted to the different executives of the Government
play substantial role in administrative decision making and immediately the settled principles of
administrative law trap the exercise of powers. If these discretionary powers are not properly
exercised, or there is abuse and misuse of powers by the executives or they take into account
irrelevant consideration for that they are not entitled to take or simply misdirect them in applying
the proper provision of law, the discretionary exercise of powers is void. Judicial review is
excluded when it is found that executives maintain the standard of reasonableness in their
decisions. Errors are often crept in either because they would maintain pure administrative spirit
as opposed to judicial flavour or that they influence their decisions by some irrelevant
considerations or that sometimes, the authorities may themselves misdirect in law or that they
may not apply their mind to the facts and circumstances of the cases. Besides, this aspect, they
may act in derogation of fundamental principles of natural justice by not conforming to the
standard or reasons and justice or that they do not just truly appreciate the existence or non
existence of circumstances that may entitle them to exercise the discretion.

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Writ of Quo warranto : Its significance with respect to Administrative Law

The Executive have to reach their decisions by taking into account relevant considerations.
They should not refuse to consider relevant matter nor should they take into account
considerations that are wholly irrelevant or extraneous. They should not misdirect themselves on
a point of law. Only such a decision will be lawful. The courts have power to see that the
Executive acts lawfully. They cannot avoid scrutiny by courts by failing to give reasons. If they
give reasons and they are not good reasons, the court can direct them to reconsider the matter in
the light of relevant matters though the propriety adequacy or satisfactory character of these
reasons may not be open to judicial scrutiny. Even if the Executive considers it inexpedient to
exercise their powers they should state their reasons and there must be material to show that they
have considered all the relevant facts.

The role of writ is also sensibly laid down in a famous Padfeildss case: In England in earlier
days the Courts usually refused to interfere where the Government or the concerned officer
passed what was called a non-speaking order, that is, an order which on the face of it did not
specify the reasons for the orders. Where a speaking order was passed the Courts proceeded to
consider whether the reasons given for the order or decision were relevant reasons. Where there
was a non-speaking order they used to say that it was like the face of the Sphinx in the sense that
it was incurable and therefore hold that they could not consider the question of the validity of the
order. Even in England the Courts have travelled very far since those days. They no longer find
the face of the Sphinx inscrutable.

A writ of quo warranto is not a petition, but a notice of demand, issued by a applicant, to a
respondent 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 respondent 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 respondent must cease to exercise the
power. If the power is to hold an office, he must vacate the office.

The writ is unlike a petition or motion to show cause, because the burden of proof is on the
respondent, not on the demand.

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Writ of Quo warranto : Its significance with respect to Administrative Law

By itself, the writ does not seek the support of the court to order the respondant to cease the
exercise or vacate the office. That would be an accompanying writ of prohibito or a writ
of mandamus. All such writs contemplate enforcement by the people as militia, although that
could include the sheriff or constable as commander of militia. The right involved is that of the
respondant to present his evidence.

These writs are called prerogative writs because they are supposed to be docketed ahead of all
other cases except other prerogative writs. The demandant represents the sovereign, the people,
and anyone may appear in that capacity, even without a personal stake in the decision.

A writ of habeas corpus may be regarded as a subset of quo warranto, for cases where the
claimed power is to hold a prisoner, but with the addition of a requirement to produce the
prisoner in court, not just appear to present evidence of authority.

The prerogative writ of quo warranto has been suppressed at the federal level in the United
States, and deprecated at the state level, but remains a right under the Ninth Amendment, which
was understood and presumed by the Founders, and which affords the only judicial remedy for
violations of the Constitution by public officials and agents. Here are a few writings on the
subject. Revival of the writs must be combined with reviving standing for private prosecution of
public rights, subverted by the "cases and controversies" doctrine and the decision
in Frothingham v. Mellon,12which is discussed in an article by Steve Winter, The Metaphor of
Standing and the Problem of Self-Governance.

Alternative remedy

If an alternative and equally effective remedy is available to be applicant, a writ court may not
issue quo warranto and relegate him to alternative remedy by making of and evection petitioner
falls outside the statutory remedy, the existence of alternative remedy will be no bar to the writ
of quo warranto.

12
262 U.S. 447 (1923)

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Writ of Quo warranto : Its significance with respect to Administrative Law

Power and duty of court

Where the respondent is found to be intruder or usurper of public office , he cannot be allowed to
remain in office any more.

In Kashinath v. State of Bombay13, Chagla CJ stated: In our opinion it is the duty of the
Court, as soon as its attention us drawn to the fact that a person who is not qualified is holding a
public office, to declare that he is not entitled that office and to revent him from acting such.

In Kumar Padma Prasad v. Union of India14, the Supreme Court ruled that it is the bounden
duty of the court to ensure that an ineligible and unqualified perso is not appointed to high
constitutional or august office of judge of a High Court.

In B.R. Kapoor case, also the Apex Court held that an illegal appointment of the Chief Minister
of the State must be struck down at the earliest.

13
AIR 1954 BOMBAY 41
14
1992 AIR 1213

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Writ of Quo warranto : Its significance with respect to Administrative Law

CONCLUSION

The prerogative powers of writ jurisdiction conferred by the constitution for judicial review of
administrative action is undoubtedly discretionary and yet unbounded in its limits. The discretion
however should be exercised on sound legal principles. In this respect it is important to emphasis
that the absence of arbitrary power is the first essential of the rule of law upon which the whole
constitution system is based. In a system governed by rule of law when discretion is conferred
upon the executive authorities it must be based on clearly defied limits. Thus the rule of law from
this point of view means that the discretion or the decision must be based on some principles and
rules. In general the decision should be predictable and citizens should know where he is. If a
decision is taken not on the basis of any principle or rules then such decision is arbitrary and is
taken not in accordance with the rule of law. This has reached in finest moment stated Duglas
C.J. in United States v. Wunderlich when it has freed man from the shackles of unlimited
discretion. The man has suffered on account of absolute discretion. The decision should be
guided by rule of law and it should not be based on whims, fancy and humor. The constitution is
the law of the laws and nobody is supreme. Even the judges of Supreme Court are not above law
and they are bound by the decisions which are the law of the land declared by them under the
writ petitions. Thus, the constitutional remedies provided under the constitution operate as a
check and keeps the administration of government within the bounds of law.

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Writ of Quo warranto : Its significance with respect to Administrative Law

BIBLIOGRAPHY

http://lex-warrier.in/2016/01/writ-of-quo-warranto-in-india/
http://www.cons titution.org/writ/quo_warranto.htm
http://www.legalserviceindia.com/article/l402-Role-Of-Writs-In-The-Administrative-
Law.html
http://legal-dictionary.thefreedictionary.com/Writ+of+quo+warranto
http://www.leadthecompetition.in/GKT/gktopics.html

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