1. The first respondent in this case is a sitting Judge of this court. The petitioner prays that this court should issue a writ of quo warranto calling upon the first respondent to show before this court under what authority, the first respondent is holding the office of a Judge of this court. The petitioner submits that there was no proper, effective and meaningful consultation as contemplated under Article 217 of the Constitution of India in the matter of the appointment of the first respondent as a Judge of this court. This is the stereo-bate of this action.

2. Before I consider the points raised by the petitioner, I feel that I should tell in brief what I understand to be the sphere of action and the whip hand of a writ of quo warranto. What is the width and orbit of this prerogative writ. In fact this prerogative writ in its pristine form is now obsolete in the country of its origin. But in India, Article 226 of the Constitution specifically provides that every High Court shall have power to issue to any person or authority…..writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. A writ of quo warranto postulates an answer to a query to the holder of a public office. The query in plain language is, where is your warrant of appointment by which you are holding this office? In short, it is an enquiry as to under what authority, the person in question is holding his office, franchise or liberty as the case may be.

3. Halsbury's Laws of England 3rd Edition, Vol. II Para 281 contains a succinct summary of the decisions of English Courts with regard to the discretion of the Court in issuing a writ of quo warranto. It runs thus:—

“An information in the nature of a quo warranto was not issued, and an injunction in lieu thereof will not be granted as a matter of course. It is in the discretion of the Court to refuse or grant it according to the facts and circumstances of the case………. the Court might in its discretion decline to grant a quo warranto information where it would be vexatious to do so, or where an information would be futile in its results, or where there was an alternative remedy which was equally appropriate and effective.”

4. In King v. Speyer (1916) 1 KB 595 it was considered that:—

“An information in the nature of a quo warranto will lie at the instance of a private relator against a member of the Privy Council whose appointment is alleged to be invalid.”

In this case, a rule nisi was issued calling upon Sir Edgar Speyer and Sir Ernest Joseph to show cause why information in the nature of a quo warranto should not be exhibited against them to show by what authority they were or claimed to be, members of His Majesty's Privy Council for Great Britain.

5. Tindal CJ. has said:—

“The result appears to be, that this proceeding by information in the nature of quo warranto will lie for usurping any office, whether created by charter alone, or by the Crown, with the consent of Parliament, provided the office be of a public nature, and a substantive office, not merely the function or employment of a deputy servant held at the will and pleasure of others; for, with respect to such an employment, the Court certainly will not interfere, and the information will not properly lie.”

Rex. v. Stacey (1785) 99 ER 938 holds that a writ of quo warranto is not a motion of course and it is in the discretion of the Court to issue considering the circumstances of the case. The Canadian view as stated in The King exrel Beudret v. Johnston (1923) 2 DLR 278 is that the court has to take into consideration public interest, the consequences to follow the issue of a writ of quo warranto and all the other circumstances of the case.

6. Unlike the other prerogative writs, the issue of writ in the nature of quo warranto was purely a discretionary writ. There was a little controversy about this aspect of the matter. S.A de Smith in his Book. The Judicial Review of Administrative Action (2nd Edition) at page 371 says thus:—

“The fact that some of the prerogative writs were discretionary came to be directly linked with their designation as prerogative writs. Thus, in one case, it was said: ‘An application for mandamus is an application to the discretion of the court; a mandamus is a prerogative writ and is not a writ of right’. But although none of the prerogative writs is a writ of course, not all are discretionary. Prohibition, for example, issue as of right in certain cases, and habeas corpus and subjuciendum the most famous of them all, is a writ of right which issues ex debito justitiae when the applicant has satisfied the court that his detention was unlawful. These two writs, therefore, are not in the fullest sense writ of grace.”

Further he has stated in the same book that “the application may be refused for undue delay, and is in any event not to be brought if the respondent has acted in the office for six years.”

7. I need not emphasise that since writ of quo warranto is a somewhat drastic remedy the courts in administering it should proceed with anxious deliberation and with utmost caution. In England, by section 9 of the Administration of Justice (Miscellaneous Provisions) Act, 1938, proceedings by way of prerogative writ of quo warranto to challenge the right of any person to hold a public office has been abolished. But there is a provision by which the Queens Bench Division may now be requested to issue an injunction restraining an individual from acting in a public office in circumstances in which quo warranto could formerly have been brought. The above views and principles broadly indicate and throw sufficient light on the path, the courts have to ambulate before issuing a writ of quo warranto. These principles have been largely followed by our courts and the Supreme Court. AIR 1965 SC 491 (University of Mysore v. Govinda Rao) practically affirms these principles. What I have quoted from the Halsbury's Laws of England has been quoted with approval by the Supreme Court in the above decision. The Supreme Court said:—

“Broadly stated, 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 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 from that office.”

8. Regarding the discretionary nature of the writ, I shall also refer to the American Law as stated in American Jurisprudence (Vol. 65) Notes 5 and 10.

Note 5. Nature of remedy.

“Quo warranto is an extraordinary, prerogative, writ and as such is administered cautiously and in accordance with certain well defined principles. Although the ancient writ of quo warranto was an original one issuing out of chancery, the remedy is now of legal, rather than of equitable, cognizance. Inquiry in quo warranto proceedings into the regularity of a judgment has been ordinarily, although not invariably, regarded as a collateral attack on the judgment.

The reasons for this cautious application of this jurisdiction is stated thus:—

“This approach has been justified on the ground that the writ, or a judgment of ouster: thereunder, may have drastic consequences affecting the public welfare.” (Vide Note 10).

Both English Law and the American Law definitely state that in exercising the discretion, the court should consider all the circumstances of the case, including lapse of time, and circumstances which would establish laches, acquiescence or estoppel, and whether the public interest will be served. Chief Justice Chagla said in Bhairulal Chunilal v. State of Bombay AIR 1954 Bom 116 thus:—

“Now the writ of ‘quo warranto’ is not issued as a matter of right. It is discretionary relief and the court has always to ask itself whether under the circumstances of each case the petitioner should be given the relief in the nature of quo warranto which he seeks. In this particular case every factor which can be taken into consideration weighs against the petitioner being entitled to this relief.”

9. Now I feel that I should tell clearly and plainly at the foreground that the facts disclosed in the petition will not even by a long shot justify the issue of a writ even if it is assumed to be a writ of right which could be issued ex debito justitiae. I shall start my enquiry by concisely referring to the constitutional provisions, governing the appointment of a Judge of the High Court under Article 217(2) of the Constitution. Before a person can be considered for appointment as a High Court Judge, he must possess the qualifications specified therein. The President must make the appointment after consultation with the Chief Justice of India and in the case of appointment of other than that of the Chief Justice, the Chief Justice of the High Court and the Governor of the State.

10. Certainly by the decisions of the Supreme Court, it has been made clear that although Article 217 of the Constitution does not specifically say so, the consultation provided for is meant to ensure that a person appointed as a High Court Judge is a fit and proper person to be so appointed. This is obvious because there will be thousands of persons who possess the minimum qualification specified in the Article.

11. Article 217(1) of the Constitution postulates that a permanent Judge shall continue to hold office till he attains the age of 62 years and in the case of an additional Judge as provided in Article 224. Article 224(1) of the Constitution provides for a term of office not exceeding two years. Article 217(1) of the Constitution provides the period during which a permanent or an additional judge can hold office. The proviso to the Article makes provision for the termination of that period in three ways:

(i) by resignation from office;

(ii) by removal as provided by Article 218 read with Article 124(4);

(iii) by his being appointed by the President to be a judge of the Supreme Court or by his being transferred by the President to any other High Court.

12. The petitioner admits that the first respondent was appointed as a Judge of this Court on 28th August, 1981. The petitioner has no case that the first respondent is holding the office without a valid appointment. The case of the petitioner is that had all the facts and circumstances concerning the first respondent relevant for considering him for the appointment been properly valued and appreciated by the appointing authority, the first respondent would not have been made a judge of this court. This contention implicits a query as to whether the appointing authority has failed in applying his mind to all facts and materials relevant for considering the first respondent for appointment as a Judge of this Court. To bear out the submission, the petitioner spotlights certain facts which happened long prior to the appointment, during the period 1972-74. The petitioner submits that the first respondent was a Government Pleader prior to his appointment as a Judge. Shortly stated, what the petitioner states is that there was some enquiry in regard to the first respondent's conduct as Government Pleader by the Government and there was a report prepared by the then Law Secretary. The petitioner says that the report was not given due consideration when the Government has given the consultative advice for the appointment of the first respondent. It is plain and clear from the narration of facts in the petition that the petitioner has no material to base his submission that such a report, if there was one was not available to the Governor before the Governor made his advice for the appointment of the first respondent. He has not and cannot have any personal knowledge about what he states about the report. He also does not disclose in his petition receipt of any authentic information about it. It is purely a surmise.

13. There are decided cases where it is said that even mala fides of the appointing authority may not be a sufficient and good ground to sustain a writ of quo warranto. In a Full Bench decision in P.L Lakhanpal v. A.N Ray AIR 1975 Delhi 66 Andley C.J considering the question of appointment of the Chief Justice, A.N Ray, observed:—

“But to my mind the mala fides of the appointing authority or in other words, the motives of the appointing authority in making the appointment of a particular person are irrelevant in considering the question of issuing a writ of quo warranto. ………….. It is issued against a usurper of an office or, in other words, against a person who holds an office without any authority from the person who is entitled to make an appointment to that office.”

14. I feel that in a writ of quo warranto, this court has no jurisdiction or power to examine and explore the mind of the appointing authority. What all facts entered the mind of the appointing authority in appointing a particular person seems to be not a relevant fact to be considered in a proceeding for a writ of quo warranto. This is so because the main question that is before the court for determination is the title of the person who holds the office. It is a case of an examination whether the first respondent concerned is a usurper. This court's function is circumscribed to a query to the person in question “what is your authority to hold the office”? Of course, he can be asked, whether the authority or the warrant he produced is by the person who is authorised to make an appointment to the office which he holds. The petitioner has no case that the first respondent is holding the office without a warrant properly signed and issued by the President of India and that the President has no power to appoint the first respondent as a Judge of this Court.

15. Now, regarding the wild allegations made in the petition I would say that there is no factual foundation or details discernible from the petition. The same allegations imputed against the first respondent constituted the subject-matter of a previous Original Petition before this Court vide 1985 Ker LT 585 : (1986 Cri LJ 758) (Ramankutty Menon v. State of Kerala). A Division Bench of this Court considered the nature of the allegation and observed, expressing in unequivocal terms its utmost displeasure thus:—

“In the circumstances, and on the facts highlighted, we have considerable doubts even about the bona fides of the petitioner. He files a criminal complaint against a sitting Judge, about two years after the Judge assumed office. He rests his cause in the criminal court on events which happened about 13 years back. He is personally ignorant of those facts as he was in no way connected with those incidents. He makes allegation unsupported by facts and figures and requires the court to conduct an enquiry and then convict. We have considerable doubts whether the petitioner, for reasons best known to himself, is not attempting to interfere with the due course of justice and to intimidate the Judge and deter him from discharging his duties without fear or favour. This is a dangerous trend which has to be nipped in the bud. It has to be considered in other appropriate proceedings, preferably by the Advocate General, whether the filing of the complaint in the circumstances will not itself warrant action under the Contempt of Courts Act.”

The petitioner herein also candidly admits that he is personally ignorant of the facts constituting the serious allegations the petitioner has made in the petition, as he was in no way connected with the said events. The petitioner in this petition has referred to the Division Bench decision. The petitioner submits that the view taken by the Division Bench requires re-consideration. I see no reason at all for holding that the decision of the Division Bench requires re-consideration. I fully agree with the Division Bench.

16. Further the petitioner says that he came to know of the details he has stated about things happened in 1972-74 only recently. He frankly admits that he does not know the contents of the alleged report prepared by the Law Secretary.

17. The Division Bench has said even thus:—

“It is, therefore, surprising that an advocate of this Court has taken up his cause, in this state of affairs, and proceeded to champion his case, before the Chief Judicial Magistrate Court, Ernakulam, and before the Government and also before this Court.”

I quote the above observation to answer a request made by the petitioner that this court should provide the services of a counsel of this court to argue the case for the petitioner. I do not think that this is a fit case where I should direct a counsel to assist the petitioner.

I have no doubt that this court should decline to entertain a petition under Article 226 of the Constitution to grant a quo warrant writ where it would be vexatious to do so. So I decline to entertain this petition. It is dismissed.

Petition dismissed.