Dr.

Sakuntala Misra National Rehabilitation University

Mohan Road, Lucknow.

2017-18

Assignment on The Administrative Law

Topic Name

Nature and Scope of a Quo Warranto

Submitted To:- Submitted By :-

Prof. Dr. Gulab Rai Abhishek verma

(Faculty of law) B.Com LL.B

six semester

D.S.M.N.R.U
 Quo- Warranto

Nature and scope of quo warranto

Que warranto literally means what is your authority. It is a judicial remedy against
an occupier or usurper of an independent substantive public office franchise or
liberty. By issuing this writ the person concerned is called upon to show to the
court by what authority he holds the office franchise or liberty. If the holder has no
authority to hold the office he can be ousted from its enjoyment. This writ also
protects the holder od a public office from being deprived of that to which he may
have a right.

Meaning and Object

The literal meaning of quo-warranto is by what authority. By this writ, a person

who occupies or usurps an independent substantive office is asked to show by what
authority he claims it. According to Hapsburg, 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 enquire by what
authority he supported his claim in order the right to the office or franchise might
be determined. The procedure of quo-warrant lay against a person who claimed or
usurped an office, franchise or liberty, to enquire by what authority he supported
his claim, in order that the right to the office or franchise might be determined. The
procedure to quo-warranto confers jurisdiction on the Court to call upon the person
holding an independent substantive public office or franchise or liberty to show by
what right he holds the said office, franchise or liberty.
UN authorized occupant of such office may by ousted by the judicial order
and the person entitled to the office may be allowed to occupy it. The procedure of
quo-warranto confers jurisdiction and authority on the judiciary to control
executive action in the matter of appointment to public office against the relevant
statutory provisions. By this writ, the Court protects the public from usurpers of
the public office. By this writ, the Court protects a citizen from being deprived of a
public office to which he is legally entitled to hold. With Respect to the writ of
qua-warranto, the supreme Court has made it clear that the person not entitled to
the post can be ousted and the person entitled to the post can be allowed to occupy
it In this case the Supreme Court has held that the procedure to auo-warranto
confers jurisdiction and authority on the judiciary to control executive action in the
matter of making appointments to the public offices against the relevant statutory
provisions, it also protects a citizen from 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
convenience of the executive or with its active help, and in such case, if the
jurisdiction of the Courts to issue the writ of que-warranto is properly invoked, the
usurper can be ousted and the person entitled to the post is allowed to occupy it.
 Condition of a quo warranto

Before the write of quo warranto can be issued, the following conditions must be satisfied:

1- Such offence must be of a public nature.

2- It must be of a substantive character.
3- It must be statutory.
4- The holder must be in actual occupation of the office.

Consider these conditions-

(a) Public office
(b) Substantive character
(c) Statutory nature
(d) Actual occupation

a. Public office

The office must be of a public nature. By public office is meant an office in which the
public has an interest. Before the write can be issued the court must be satisfied that the
office in question is a public office and the holder thereof has no legal authority to hold
the said office.
This writ not lie in respect of office of a private nature; e.g. a managing committee of a
private school. On the other hand, the offices of the prime minister, chief minister, chief
minister, minister, chief justice advocate general, speaker of the house of legislature,
councilor, etc. are public offices.

b. Substantive character

The office must be of a substantive character. The words substantive

character means the office in a question must be an independent office. The
holder of such office must be an independent official and not merely a
deputy or servant of others.
But the mere fact that the office is held at pleasure will not make the office
one which is not substantive. Thus the member ship of the Privy Council or
the office of the advocate general of a stat, or the governor, though held
during the pleasure of the crown can be said to be of a substantive character.
 c. Statutory nature the office must be statutory or constitutional. Thus a
write of que warranto may be issued in respect of office of the prime
minister, advocate general, high court judge, etc.
d. Actual occupation - the holder must be in actual occupation of the office
and he must have asserted his right to claim it. Mere claim to an office is not
enough to justify issuance of que warranto. Such claim must be coupled with
occupation and usurpation.

Conditions for the issue:

For the issue of writ of quo-warranto, the following conditions are required
to be fulfilled-

(1) the office in question must be a public office of substantive character;

and
(2) it must be held by a person without legal authority.
 Public office of substantive character:

For the issue of this writ, the office held by the usurper must be public office
of a substantive character. In the case of University of Mysore V. Govind Rao, the
Supreme Court has held that for this purpose, substantive office should be taken to
mean an office independent in title. The office may be one in respect of which
nomination of appointment is made or it may be elective office. The office is
required to be an office of public character and also of substantive character. It
cannot be issued, if the office in question is an office of a private character. It
cannot be issued against the members of the managing Committee of a private
school or of a Working Committee of a private religious institution as they do not
hold the office of public nature. The expression Public Office for this purpose
has not been defined in the Constitution. However, the office is regarded as public
office if the duties of the office are public in nature or public have an interest in the
office or its created by the Constitution or by stature. The following have been
treated as holders of public office for this purpose: Speaker of Legislative
Assembly, Advocate General, and Government.
Pleader, Ministers and Chief Minister, Mayor and Member of Municipal Board.
For this purpose, the office is required to be not only of public office but
also of substantive character. To be of substantive character is must be independent
in title.
For the purpose of the issue of quo-warrant, the public office of substantive
character is required to be held by a person who is not legally qualified to hold the
office or some statutory provision must have been violated in making the
appointment of the person to the office which makes his title of the office invalid.
In Hari Bansh Lal v. Shaodav Prasad Mahto, the Supreme Court made it
clear that a writ of quo warrant can only be issued which the appointment is
contrary to the statutory rules. This writ lies only when appointment is contrary to
a statutory provision.
However, the violation of the statutory provision should not be such as may
be cured as an irregularity. For this purpose, the public office is required to be held
illegally and not merely irregularly. This writ will not lie in case the public office
is held by a person irregularly but not illegally. For the issue of this writ, there
must be violation of mandatory provision of a statute or the Constitution. For this
purpose, there must be clear violation of the Constitution for the provisions having
the force of law as distinguished from mere administrative instructions. If a person
occupies a public office of substantial character illegally as not being legally
entitled to hold it, but subsequently becomes qualified to hold it at the date of the
hearing of the petition, the Court will refuse to issue to as it will be futile in such a
case.
 The person against whom the writ is issued must have assumed the office of
asserted his claim to the office. Petition for quo-warranto will be pre-mature until
the person against whom it is sought to be issued has assumed the office or has
asserted his claim of the office. However, for this purpose, he is not required to
assume the name of the office, and thus it may be issued even person has usurped
an office is a question of substance.

For the issue of quo-warranto, the usurper must have held the office. Once
he ceases to hold the office, quo-warranto will not be issued as it will
become in fructuous.

Who may apply?

In case of quo-warranto, we find an exception to the general rule that

only a person who is individually aggrieved can apply for the issue of the
writ under Article 226. In the case of petition for quo-warranto, the
petitioner does not necessarily seek to enforce his own right but challenges
the right of the respondent to hold the public office.
A stranger whose motive is not improper may apply for the issue of
quo-warranto. Thus, any person, whether or not his any Fundamental or
other legal Right has been violated, may apply for the issue of quo-warranto
at the instance of acting bona fide. In other words, the Court may issue quo-
warranto at the instance of any member of public who has acted bona fide
whether or not his any personal legal right, has been violated or whether or
not he is personally aggrieved or whether or not he has any personal interest
in the office.
 When may be refused:

Quo-warranto is never issued as a matter of course. It is a

discretionary remedy. consequently; the Court may grant or refuse according
to the facts and circumstances of each case. Thus, the Court may effuse to
issue quo-warrant where is would be vexations or futile. It may be refused if
the petition is barred by res judicata. It may be refused if the petitioner has
alternative remedy under the statue. However, it is to be noted that the
existence of an alternative remedy is not an absolute bar.
Quo-warranto is not ordinarily refused on the ground of delay in
resenting a petition for quo-warranto because if the appointment is illegal,
everyday he acts in office a fresh cause of action areses. However, if due to
delay it becomes futile to issue it, the Court has discretion to refuse to issue
quo-warranto.
Acquiescence on the part of the petitioner may disentitle him to Quo-
warranto. Where a person holds a public office of substantive character
illegally for a long time and no complaint has been brought by the petitioner
during this period acquiescence may be presumed on the part of the
petitioner and he will not be entitled to que-warranto.

History-

The writ of quo-warranto is of English origin and is one of the most ancient
and important writs known to common law. The first case was of 1198
which was used against the incumbent of the church requiring him to show
the authority under which he was there. The first statute was the statute of
Gloucester.
 Conclusion
Que warranto is thus a judicial proceeding which seeks to protect public interest by preventing
invasion or abuse of public office by an intruder or usurper of such office. as soon as the
attention of the court is drawn that a person not entitled to hold an office is occupying such office
contrary to law it is not only the power but the duty of the court to declare that he has no
authority to hold the office and to restrain him from acting as such.