Bombay High Court
Pravin P. Wategaonkar vs The Additional Chief Secretary, ... on 23 September, 2024
Author: Amit Borkar
Bench: Amit Borkar
2024:BHC-AS:38747-DB
113.24-pil.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO.113 OF 2024
BASAVRAJ Pravin P. Wategaonkar ..... Petitioner
GURAPPA
PATIL
Digitally signed by
Vs.
BASAVRAJ GURAPPA
PATIL
Date: 2024.10.01
17:11:13 +0530 The Additional Chief Secretary & Anr. ..... Respondents
Shri Pravin P. Wategaonkar, petitioner-in-person
Dr. Birendra B. Saraf, Advocate General with Shri P. P. Kakade,
Government Pleader with Shri O. A. Chandurkar, Additional
Government Pleader with Shri Jay Sanklecha, "B" Panel Counsel
with Mrs. G. R. Raghuwanshi, AGP for respondent No.1
Shri Aspi Chinoy, Senior Advocate with Shri Navroz Seervai,
Senior Advocate with Shri Cherag Balsara, Shri Karan Bhosale,
Shri Kartikeya G. Desai, Ms. Rashi Shah, Ms. Amita Band i/b.
M/s. Kartikeya & Associates for respondent No.2.
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
AMIT BORKAR, J.
DATE : SEPTEMBER 23, 2024
ORAL JUDGMENT (PER : CHIEF JUSTICE)
1. Heard Shri Pravin P. Wategaonkar, petitioner-in-person,
and Dr.Birendra B. Saraf, Advocate General representing the
Additional Chief Secretary, Housing Department, Government of
Maharashtra.
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(A) Challenge:
2. By instituting the proceedings of this petition, jurisdiction of
this Court has been invoked under Article 226 of the Constitution
of India, with a prayer that respondent No.2 be removed from
the office of Chairperson, Maharashtra Real Estate Regulatory
Authority (hereinafter referred to as the "Authority") by the
issue of writ of quo-warranto. Prayer clause (18) of the PIL
petition runs as under.
"18. In the light of the above, Petitioner therefore prays ;
A) That this Hon'ble Court may be pleased to issue writ of quo-
warranto against / inquire into the legality of the claim of Resp.
No. 2, Shri. Manoj Saunik to hold the Office of The Chairman of
Maharashtra Real Estate Regulatory Authority; and/ or,
B) That this Hon'ble Court may be pleased to issue appropriate
writ, order and/ or direction to Respondent No. 1/ ACS, Housing
dept., Maharashtra to produce all documents-records and
examine the procedure adopted and the material considered,
based on which Resp. no. 2 has been appointed vide GR dt.
16.07.2024/ 'Annex. A', and/or,
C) That this Hon'ble Court may be pleased to issue appropriate
writ, order and/ or direction to inquire into legality, validity and
propriety of the procedure adopted in issuance of the GR dt.
16.07.2024/ 'Annex. A'; and/or,
D) That this Hon'ble Court may be pleased to issue appropriate
writ, order and/ or direction to inquire into the legality, validity
and propriety of the procedure adopted in issuance of the GR
dt. 16.07.2024/`Annex. A' and declare the same to be
contrary to public interest, illegal and ultra vires of the
Constitution of India; and/or,
E) Pending the final hearing and disposal of this Petition, this
Hon'ble Court may be pleased to stay the operation and effect
of the said GR dt. 16.07.2024/ 'Annex. A' - stay the
appointment of Shri. Manoj Saunik as Chairman of Maharashtra
Real Estate Regulatory Authority; and/or,
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F) Pending the final hearing and disposal of this petition, this
Hon'ble Court may be pleased to grant Ex-parte interim/ ad
interim relief in terms of prayer clause (E) in public interest and
interest of Justice; and/or,
G) For such further orders and / or directions as this Hon'ble Court
may deem fit and proper considering the nature, facts and
circumstances of the case as may be required."
(B) Relevant statutory provisions:
3. Before we delve into the respective submissions made on
behalf of the rival parties, it is necessary to advert to certain
provisions of the Real Estate (Regulation and Development), Act
2016 (hereinafter referred to as the "Act, 2016") and the
Maharashtra Real Estate, Chairperson, Members, Officers and
other Employees (Appointment and Service Conditions) Rules,
2017 (hereinafter referred to as the "Rules, 2017").
4. "The Authority" has been established and incorporated
under section 20 of the Act, 2016 which is quoted hereinbelow:
S.20 Establishment and incorporation of Real Estate
Regulatory Authority -
(1) The appropriate Government shall, within a period of one year
from the date of coming into force of this Act, by notification,
establish an Authority to be known as the Real Estate Regulatory
Authority to exercise the powers conferred on it and to perform the
functions assigned to it under this Act:
Provided that the appropriate Government of two or more
States or Union territories may, if it deems fit, establish one single
Authority:
Provided further that the appropriate Government may, if it
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deems fit, establish more than one Authority in a State or Union
territory, as the case may be:
Provided also that until the establishment of a Regulatory
Authority under this section, the appropriate Government shall, by
order, designate any Regulatory Authority or any officer preferably
the Secretary of the department dealing with Housing, as the
Regulatory Authority for the purposes under this Act:
Provided also that after the establishment of the Regulatory
Authority, all applications, complaints or cases pending with the
Regulatory Authority designated, shall stand transferred to the
Regulatory Authority so established and shall be heard from the stage
such applications, complaints or cases are transferred.
(2) The Authority shall be a body corporate by the name aforesaid
having perpetual succession and a common seal, with the power,
subject to the provisions of this Act, to acquire, hold and dispose of
property, both movable and immovable, and to contract, and shall, by
the said name, sue or be sued.
5. Section 21 of the Act, 2016 provides for composition of the
Authority according to which the Authority shall consist of a
Chairperson and whole-time Members who shall not be less than
two, to be appointed by the appropriate Government. Section 21
of the Act, 2016 is quoted hereinbelow:
S.21 Composition of Authority.
The Authority shall consist of a Chairperson and not less than
two whole time Members to be appointed by the appropriate
Government.
6. Qualification of Chairperson and Members of the Authority
has been provided for in section 22 of the Act, 2016 according to
which the Chairperson and other members are to be appointed
by the appropriate Government on the recommendation of a
Selection Committee which comprises of Chief Justice of the High
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Court or his nominee, Secretary of the Department dealing with
the Housing and the Law Secretary. The appointment of
Chairperson and Members of the Authority as per Section 22 is
to be made from amongst the persons having adequate
knowledge and professional experience of at least twenty years
and fifteen years in the case of Chairperson and Members,
respectively. The provision further provides that the professional
experience required to be possessed for appointment of
Chairperson and Members of the authority should be in the areas
of Urban Development, Housing, Real Estate Development,
Infrastructure, Economics, adequate experience from relevant
fields of Planning, Law, Commerce, Accountancy, Industry,
Management, Social Service, Public Affairs or Administration.
7. The first proviso appended to Section 22 prescribes that a
"person who is, or has been in the service of State Government"
will qualify to be appointed as Chairperson only if such a person
has held the post of Additional Secretary to the Central
Government or any equivalent post in the Central Government
or State Government. The second proviso appended to Section
22 prescribes that a person who is, or has been in the service of
State Government shall qualify to be appointed as a Member
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only if such person has held the post of Secretary of the State
Government or any equivalent post in the Central Government
or State Government. Section 22 of the Act, 2016 is quoted
hereunder:
S.22 Qualifications of Chairperson and Members of Authority.
The Chairperson and other Members of the Authority shall be
appointed by the appropriate Government on the recommendations of
a Selection Committee consisting of the Chief Justice of the High
Court or his nominee, the Secretary of the Department dealing with
Housing and the Law Secretary, in such manner as may be
prescribed, from amongst persons having adequate knowledge of and
professional experience of at-least twenty years in case of the
Chairperson and fifteen years in the case of the Members in urban
development, housing, real estate development, infrastructure,
economics, technical experts from relevant fields, planning, law,
commerce, accountancy, industry, management, social service, public
affairs or administration:
Provided that a person who is, or has been, in the service of the
State Government shall not be appointed as a Chairperson unless
such person has held the post of Additional Secretary to the Central
Government or any equivalent post in the Central Government or
State Government:
Provided further that a person who is, or has been, in the
service of the State Government shall not be appointed as a member
unless such person has held the post of Secretary to the State
Government or any equivalent post in the State Government or
Central Government.
8. Section 23 of the Act, 2016 provides for the term of office
of Chairperson and Members according to which Chairperson and
Members shall hold office for a term of maximum 5 years from
the date they enter upon their office, or until they attain the age
of sixty-five years, whichever is earlier. The provision further
provides that Chairperson or Members appointed to the Authority
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shall not be eligible for re-appointment. Section 23 of the Act,
2016 is as under:
S.23 Term of office of Chairperson and Members.
(1) The Chairperson and Members shall hold office for a term
not exceeding five years from the date on which they enter upon
their office, or until they attain the age of sixty-five years, whichever
is earlier and shall not be eligible for re-appointment.
(2) Before appointing any person as a Chairperson or Member,
the appropriate Government shall satisfy itself that the person does
not have any such financial or other interest as is likely to affect
prejudicially his functions as such Member.
9. Certain provisions of the Rules, 2017 are also relevant to
be extracted here. Rule 2(1)(f) of Rules, 2017 defines "Selection
Committee" to mean the Committee as prescribed in Section 22
of the Act, 2016. Rule 2(1)(f) of the Rules, 2017 is as under:
2. Definitions
(1) In these rules, unless the context otherwise requires, -
(a) to (e) .......
(f) "Selection Committee" means the committee specified in
section 22
10. The provision for selection of Chairperson and other
Members of the Authority can be found in Rule 4 of the Rules,
2017 according to which on occurrence of a vacancy in the office
of Chairperson or Member or if such a vacancy is likely to arise,
the State Government shall make a reference to the Selection
Committee for appointment of Chairperson or Members. Rule
4(2) mandates the Selection Committee to follow such procedure
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as it may deem fit for the purpose of selection of Chairperson or
Member of the Authority. Rule 4(3) provides that the Selection
Committee shall make recommendation to the State
Government for its consideration in the form of a panel of not
more than three members, in order of preference, separately to
fill the vacancy or vacancies which are referred to it by the State
Government. Sub Rule (4) of Rule 4 of Rules, 2017 mandates
that the Selection Committee shall make recommendations to
the State Government, within a period not exceeding sixty days
from the date of reference. As per sub Rule (7) of Rule 4 of the
Rules, 2017 the Secretary-in-charge of the Housing Department
is the convener of the Selection Committee. Rule 4 of Rules,
2017 is extracted hereinbelow:
"4. Selection of Chairperson and other Members of Authority.
(1) The State Government shall make a reference to the Selection
Committee for appointment of the Chairperson and Members of the
Authority or when any vacancy in the office of the Chairperson or
Member arises or likely to arise in the Authority.
(2) The Selection Committee may, for the purpose of selection of the
Chairperson or Member of the Authority, follow such procedure as it
may as deem fit.
(3) The Selection Committee shall make a recommendation to the
State Government for the consideration in the form of a panel of not
more than three persons, in order of preference, separately to fill the
vacancy or vacancies referred to by the State Government.
(4) The Selection Committee shall make its recommendations to the
State Government, within, a period not exceeding sixty days from the
date of reference made under sub-rule (1).
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(5) The Selection Committee shall normally hold its meeting at Mum-
bai or at such places in the State, as may be decided by the Chairper-
son.
(6) The Notice/Agenda, as the case may be, for the meeting of the
Selection Committee shall be issued by the Convener after fixing the
date and venue for such meeting in consultation with the Chairperson
of the Selection Committee.
(7) The Secretary-in-Charge of the Housing Department shall be the
convener of the Selection Committee."
11. Rule 5 of Rules, 2017 prescribes that the recommendation
of the Selection Committee for appointment of Chairperson and
Members shall be considered by the State Government in order
of preference as may recommended by the Selection Committee.
It further provides that in case the State Government makes
appointment not according to the order of preference indicated
by the Selection Committee in its recommendation, the
Government shall record the reasons therefor in writing. Rule 5
of Rules, 2017 is quoted hereunder:
"5. Appointment of Chairperson and Members.--
The State Government shall consider the recommendations of the
Selection Committee for the appointment of the Chairperson and
Members or to fill the vacancy in order of preference as recommended
by the Selection Committee. If the State Government appoints person
not according to the order of preference, the Government shall record
the reasons in writing therefor."
12. As per Rule 8 of the Rules, 2017 the term of office of
Chairperson and Members shall be in accordance with the
provisions of sub-section (1) of Section 23. Sub Rule (2) of Rule
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8 provides that in a situation where the Chairperson is not
capable to discharge his functions on account of his death,
resignation, absence, illness or any other cause, it is the senior-
most Member of the Authority who shall discharge the functions
of the Chairperson until the Chairperson resumes the charge or
till vacancy is filled by nomination of a suitable person under
Section 24. Rule 8 of the Rules, 2017 is extracted hereinbelow:
8. Tenure of office.--
(1) The term of office of the Chairperson and Members shall be in
accordance with the provisions of sub-section (1) of Section 23.
(2) When the Chairperson is unable to discharge his functions ow-
ing to death, resignation, absence, illness or any other cause, the se-
nior-most Member of the Authority (in the order of appointment)
holding office for the time being shall discharge the functions of the
Chairperson until the day on which the Chairperson resumes the
charge of his functions or till the vacancy is filled by nomination of a
suitable person, under section 24.
13. Having noticed various statutory provisions contained in
Act, 2016, and the Rules, 2017 which are relevant for
appropriate adjudication of the issues involved in this petition,
we have summarized below the submissions made on behalf of
the respective parties.
(C) Submissions of the petitioner:
14. The petitioner, as observed above, has addressed the Court
in-person. He has made the following submissions in respect of
the prayers made in the PIL petition.
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15. The main plank of argument of the petitioner is that the
phrase "who is, or has been, in the service of the State
Government" occurring in the first proviso appended to Section
22 of the Act, 2016 has to be given a purposive interpretation
and therefore, it has to be construed to mean "who is or has
been, in service without any blemish whatsoever" and thus, the
eligibility criteria in terms of Section 22 of the Act, 2016 has to
be read to mean that only such person "who is or has been in
the service of the State Government without any blemish
whatsoever" shall be eligible for appointment to the Authority.
16. The petitioner, thus, has submitted that since respondent
No. 2, while he has been in the service of the State Government,
did not have an un-blemished career; rather there are material
which indicate a clear case of misconduct and misdemeanour on
his part, as such he does not fulfill the eligibility for appointment
to the office of Chairperson of the Authority, however, his
selection and appointment has been made ignoring such
misconduct and misdemeanour on his part.
17. Petitioner's further submission is that the phrase "is or has
been in service" has to be construed to mean "is or has been in
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service without any blemish" and that respondent No. 2 does not
fulfill the requisite eligibility condition and accordingly, therefore,
he is an usurper of the office of Chairperson of the Authority and
hence, in the present case, the Court may issue a writ of quo-
warranto for his removal from the said office.
18. In support of his submission, reliance has been placed by
the petitioner on the judgment of the Hon'ble Supreme Court in
N. Kannadasan Vs. Ajoy Khose & Ors. 1. To bring home the
ground that respondent No.2 does not have unblemished service
career while he was serving the State of Maharashtra, it has
been stated by the petitioner that a request from Anti Corruption
Bureau is pending with the State Government to enquire into the
misconduct of respondent No.2 in relation to a tender procedure
which was undertaken for construction of Mumbai-Pune
Expressway and accordingly, on account of pendency of the said
request made by the Anti Corruption Bureau, the conduct of
respondent No.2 cannot be said to be unblemished which makes
him ineligible to be appointed to the office of Chairperson of the
Authority.
19. Our attention in this regard has been drawn to a letter
(2009) 7 SCC 1
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dated 26th November 2020 written by the Additional Director
General, Anti Corruption Department to the Additional Chief
Secretary, Public Works Department of the Government of
Maharashra, whereby a request has been made to authorize the
Anti Corruption Department to investigate the complaint, made
by the petitioner and one Mr.Sanjay Shirodkar, under section
17(A) of the Prevention of Corruption Act, 1988 (hereinafter
referred to as the Act, 1988).
20. The petitioner has pleaded another instance of alleged
misconduct of respondent No.2 in respect of the proceedings in
Contempt Petition (L) No.9 of 2022 in re Commercial Execution
Application No.310 of 2019 wherein respondent No.2, along with
certain other individuals, are said to have allegedly attempted to
create false record in the name of the Court to facilitate certain
settlement claim amounting to ₹358.79 crores of a firm, M/s.
Manaj Tollways. Our attention in this regard has been drawn to
certain observations made by this Court in the said matter in its
order dated 24th February 2020. The affidavit on the basis of
which order dated 24th February 2020 was passed, was filed of
respondent No.2. The petitioner submits that noticing paragraph
5 of the affidavit filed by respondent No.2 in the proceedings of
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Commercial Execution Application No.310 of 2019, the Court, in
its order dated 24th February 2020 observed, inter alia, "that
averments made in the affidavit are totally contrary to record
and there is an impression when such averments are made and
placed on record that these parties are actually indulging in
creating false record which has to be taken to its logical
conclusion, more so considering that these are all public servants
in the service of Government of Maharashtra". Our attention has
specifically been invited to paragraph 5 of the said order dated
24th February 2020 passed by this Court. The Court's attention
has also been drawn to the observations made in paragraph 9 of
the order dated 24th February 2020, where it has been stated by
the Court that, "it is with deep anguish and pain that the
averments as made in the affidavits are noted by the Court and
further that if these averments were to go unnoticed, it would
have not only amounted to maintaining and permitting false
record to be created, but also in this situation it would be
amounting to putting a premium on dishonesty".
21. The petitioner has also argued that the aforesaid facts were
brought by him to the notice of the authorities concerned,
including the Principal Secretary, Housing Department of the
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State of Maharashtra, who in terms of Rule 4(7) of the Rules,
2017, is the Convener of the Selection Committee, by means of
a notice sent by the petitioner, dated 19 th August 2024, however
ignoring the said material, though already brought to the notice
of the Selection Committee, the appointment of respondent No.2
has not been recalled which was made by means of the
Government Resolution dated 16th July 2024.
22. Lastly; citing the judgement of Hon'ble Supreme Court in
the case of Centre for PIL and Anr. Vs. Union of India 2, it
has been argued by the petitioner that institutional competence
of the Authority shall be compromised in case respondent No.2 is
permitted to be continued in the office of Chairperson of the
authority and since the institution is more important than the
individual, the Selection Committee ought to have taken into
consideration the adverse material against respondent No.2
which have been pointed out by the petitioner, as discussed
above, before making any recommendation for his appointment.
It has, thus, been argued by the petitioner that on account of
pendency of the prayer of the Anti Corruption Department for
initiating inquiry against respondent No.2 under section 17(A) of
(2011) 4 SCC 1
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the Act, 1988 and also on account of misconduct as reflected in
the order dated 24th February 2020 passed by this Court,
respondent No.2 cannot be said to be a person of unblemished
record and accordingly, he lacks the essential eligibility criteria
for being appointed as Chairperson and therefore, he is liable to
be removed from the office of the Chairperson of the Authority
by issuing a writ of quo-warranto.
(D) Submissions made by the learned Advocate General
on behalf of the State:
23. Shri Birendra Saraf, learned Advocate General has
vehemently opposed the PIL petition and has argued that the
grounds urged by the petitioner seeking a writ of quo-warranto
in the facts of the present case, are not tenable.
24. Shri Saraf has argued that on the basis of the material
available on this petition, the petitioner has utterly failed to point
out violation of any statutory prescription available either in the
Act, 2016 or the Rules, 2017. He further argued that there is no
procedural or otherwise illegality in the recommendation made
by the Selection Committee; nor is there any illegality in the
appointment of respondent No.2 as Chairperson of the Authority
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in absence of violation of any statutory prescriptions and hence,
the prayers made in the petition ought not to be granted.
25. On behalf of the State, further argument is that for
issuance of writ of quo-warranto, the Court has to satisfy itself
that the appointment to the public office is contrary to the
statutory rules and in absence of any material pointing to
violation of any statutory provisions in the recommendation of
the Selection Committee and appointment of respondent No.2,
this Court may not grant the prayers made in the PIL petition.
He has further argued that the Selection Committee, having
satisfied itself completely not only as to the eligibility but as to
the suitability as well of respondent No.2, had made its
recommendation, basis which the State Government has issued
the Government Resolution dated 16th July 2024 appointing
respondent No.2 as Chairperson of the authority.
26. As regards the alleged material pointing to the misconduct
of respondent No.2, it has been argued by the learned Advocate
General that mere pendency of a prayer made by the Anti
Corruption Department to the State Government seeking its
sanction to conduct an inquiry under section 17(A) of the Act,
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1988 would not amount to any blemish on respondent No.2. It is
his further submission that unless the State Government accords
its previous approval under section 17(A) of the Act, 1988, no
enquiry or investigation into any alleged offence can be
conducted by the police officer or the investigating agency. He
has further stated that as a matter of fact, section 17(A) of the
Act, 1988 is an umbrella provided to the public servants which
provides that if the alleged offence is relatable to any decision
taken by such public servant in discharge of his official functions
or duties, no enquiry may be conducted without the previous
approval of the Government.
27. Shri Saraf has, thus, argued that merely because of
pendency of the request of the Anti Corruption Department to
accord previous approval under section 17(A) of the Act, 1988, it
cannot be said that respondent No.2 had misconducted himself
in relation to the matter relating to tender pertaining to
construction of Mumbai Pune expressway.
28. As regards the observations made by this Court in its order
dated 24th February 2020 in Commercial Execution Application
No.310 of 2019, Shri Saraf has referred to a subsequent order
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passed by the Court on 28th February 2020 on a praecipe moved
for clarifying the averments made in the affidavit on the basis of
which the order dated 24th February 2020 was passed. He stated
that the affidavit was not happily worded and that it was
inadvertently not pointed out to the Court when the matter was
heard on 24th February 2020 that a note dated 25th November
2019 was prepared by the Public Works Department and as such
the said note also needs to be referred to in the order dated 24
February 2020. Accordingly, the Court recorded reference to the
note dated 25th November 2019. The order dated 28 th February
2020 is extracted hereinbelow:
"Not on board. Taken on board on a praecipe being moved on
behalf of respondent No.3 by Mr. Navroz Seervai, Senior Advocate
appearing for him.
1. Mr. Seervai, learned Counsel for respondent No.3 states that in
the affidavit dated 12 February 2020 filed by respondent No.3 in
paragraph 27 a reference is made to a note dated 25 November 2019
prepared by the PWD. This was inadvertently not pointed out to the
Court when the matter was heard on 24 February 2020 and which
also needs to be referred in the said order. I have noted the contents
of paragraph 27 of the affidavit dated 12 February 2020 of respondent
No.3 Mr. Manoj Saunik, Additional Chief Secretary, Public Works
Department, which also annexes the note dated 25 November 2019 at
Exhibit-G. Though the version in the said paragraph is not identical
as worded by Mr. Deshpande, however as Mr.Seervai would contend
for the purpose of record of the said order, the reference to this note
be also recorded. It is accordingly recorded.
2. The praecipe is disposed of accordingly."
29. Shri Saraf has also drawn our attention to the order dated
5th March 2021 passed by this Court in a review petition viz.
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Review Petition (L) No.4505 of 2020, whereby review of the
consent order passed by this Court on 12th December 2019 in
the Commercial Execution Application No.310 of 2019 was
sought by the State. His submission is that the consent order
dated 12th December 2019 passed by the Court was upheld in
the review petition. Shri Saraf, specifically, has drawn our
attention to the observations made by this Court in paragraph 55
of the order dated 5th March 2021 while dismissing the review
petition and has submitted that the Court has clearly returned a
finding that it cannot be said that such senior officers who were
involved in the decision making process, have either acted
illegally or played fraud on the Government to make such
payment, merely because the decision to settle the dispute was
taken prior to formation of democratically elected Government
which was formed on 28th November 2019, so as to come to a
conclusion that the consent terms stand vitiated by fraud or that
in any manner fraud is played on the Court. Paragraph 55 of the
order dated 5th March 2021 dismissing the review petition is
extracted hereunder:
"55. In so far as Mr. Anturkar's contention that the prayer as made
in note dated 18 November 2019, in terms of the marked portion "X"
(क्ष ), was not granted by the Governor, also cannot be accepted. This
for the reason that not only the Additional Chief Secretary but also
the Chief Secretary and thereafter the Governor have made similar
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endorsements/approval by putting their signature on the said note
without any specific qualification or condition. There is no material
placed on record, from any of such signatories to the note dated 18
November 2019, that there was never an intention on their part to
bring about settlement and make payment of the amount on which
the dispute was settled between the State and Manaj. On the
contrary, as noted above there is ample material to show that the
order/decision of the Governor was acted upon which is required to be
given sanctity as very Senior Officers of the State Government within
the framework of law, alongwith the Governor had approved such
settlement proposal to be entered by the State Government with
Manaj. It cannot be said that such Senior Officers who were involved
in the decision making process have either acted illegally or have
played fraud on the Government to make such payment, merely
because the decision to settle the dispute was take prior to the
formation of democratically elected Government which was formed on
28 November 2019, so as to come to a conclusion that the consent
terms stand vitiated by fraud or that in any manner fraud is played on
the Court."
30. On the basis of the aforesaid observations made by this
Court in its order dated 5 th March 2021, learned Advocate
General has argued that the reliance placed by the petitioner on
the order dated 24th February 2020 for attributing misconduct to
respondent No.2 that amounts to blemish, is highly misplaced.
In his submission, he states that the Court, in its order dated 5 th
March 2021, has specifically found that the officers who were
involved in taking decision for entering into settlement by the
State of Maharashtra with M/s. Manaj Tollway, did not either act
illegally or played any fraud on the Government.
31. On the aforesaid counts, learned Advocate General has
opposed the petition vehemently and has contended that no case
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for issuance of writ of quo-warranto is made out in the facts and
circumstances of the present case, hence, the petition is liable to
be dismissed at its threshold.
(E) Scope of writ of quo-warranto and that of writ of
certiorari and the difference between the two:
32. Ahead of discussing and analysing the competing
submissions made by the parties for and against grant of prayers
made in this petition, it would be appropriate to reflect upon the
scope of writ of quo-warranto and that of writ of certiorari and
the difference between the two.
33. Writ of quo-warranto and writ of certiorari, both are high
prerogative writs and a judicial tool available to the
constitutional Courts in the scheme of Constitution of India for
exercising the power of judicial review. Writ of quo-warranto is
not the same as writ of certiorari. In our jurisprudence, there
are two primary features which distinguish writ of quo-warranto
from writ of certiorari. The first such feature is that for seeking
writ of quo-warranto, the petitioner or the applicant need not
establish that he is personally prejudiced or affected by any
wrongful act of public nature or that his fundamental right is
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infringed or that he has been denied any legal right or any legal
duty owed to him, whereas for seeking writ of certiorari, the
petitioner or the applicant has to first establish as to how by the
impugned act on the part of the public authority, he is personally
prejudicially affected or as to how his fundamental right is
infringed or as to how any of his legal right has been denied to
him or how any duty owed by the public authority to the
petitioner / applicant has not been performed to his detriment.
The second feature which distinguishes a writ of quo-
warranto from writ of certiorari is that the scope of proceedings
for writ of quo-warranto is limited only to determine as to
whether the appointment of the respondent is (i) by the
competent authority, and (ii) as per the statutory prescription,
that is to say, the appointment to the public office is in
accordance with law; whereas for seeking a writ of certiorari, the
applicant / petitioner has to plead and prove certain grounds
such as illegality, irrationality, arbitrariness, defect of jurisdiction
or irregular exercise of jurisdiction, error of law and impropriety
etc. in actions and decisions of a public authority or an inferior
tribunal or court.
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34. Though both the writs are discretionary in nature, however,
scope of inquiry in a petition seeking writ of quo-warranto is
much limited as compared to the scope of inquiry in a petition
seeking writ of certiorari. The inquiry is limited, where a writ of
quo-warranto is sought, to determination of the issue as to
whether the appointment to the public office has been made by
the competent authority empowered to make such appointment
under law and as to whether the appointment has been made
following the procedure as prescribed by the statutory
prescription applicable to appointment to such public office.
35. In N. Kannadasan (supra), Hon'ble Supreme Court, while
dealing with recommendation of the Chief Justice of Madras High
Court for appointment as President of the State Consumer
Dispute Redressal Commission under the Consumer Protection
Act,1986, has held that judicial review for the purpose of
issuance of a writ of quo-warranto would lie in the event the
holder of public office was not eligible for appointment and
processual machinery relating to consultation as prescribed in
section 16 of Act, 1986 was not fully complied. Quoting from
"Corpus Juris Secundum" and various other judgements, the
Hon'ble Supreme Court, in N. Kannadasan (supra) has held
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that a writ of quo-warranto can be issued when the appointment
is contrary to the statutory rules and further that it is not for the
Court to embark upon an investigation of its own to ascertain the
qualifications of the person concerned. The Hon'ble Supreme
Court has also reflected upon the distinction between the ambit
of inquiry for issuance of a writ of quo-warranto and the ambit of
inquiry for issuance of a writ of certiorari. Paragraph 131 to 135
of the report are relevant to be quoted, which are extracted
hereunder:
"131. Concededly, judicial review for the purpose of issuance of
writ of quo warranto in a case of this nature would lie:
(A) in the event the holder of a public office was not eligible for
appointment;
(B) processual machinery relating to consultation was not fully
complied.
The writ of quo warranto proceedings affords a judicial remedy by
which any person who holds an independent substantive public office
is called upon to show by what right he holds the same so that his
title to it may be duly determined and in the event it is found that the
holder has no title he would be directed to be removed from the said
office by a judicial order. The proceedings not only give a weapon to
control the executive from making appointments to public office
against law but also tend to protect the public from being deprived of
public office to which it has a right. It is indisputably a high
prerogative writ which was reserved for the use of the Crown. The
width and ambit of the writ, however, in the course of practice, have
widened and it is permissible to pray for issuance of a writ in the
nature of quo warranto.
132. In Corpus Juris Secundum [74 C.J.S. Quo warranto § 14], "Quo
warranto" is defined as under:
"Quo warranto, or a proceeding in the nature thereof, is a
proper and appropriate remedy to test the right or title to an office,
and to remove or oust an incumbent.
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It is prosecuted by the State against a person who unlawfully
usurps, intrudes, or holds a public office. The relator must establish
that the office is being unlawfully held and exercised by the
respondent, and that relator is entitled to the office."
133. In Law Lexicon by J.J.S. Wharton, Esq., 1987, "Quo warranto"
has been defined as under:
"QUO WARRANTO, a writ issuable out of the Queen's Bench, in the
nature of a writ of right, for the Crown, against him who claims or
usurps any office, franchise, or liberty, to enquire by what authority
he supports his claim, in order to determine the right. It lies also in
case of non-user, or long neglect of a franchise, or misuser or abuse
of it; being a writ commanding the defendant to show by what
warrant he exercises such a franchise having never had any grant of
it, or having forfeited it by neglect or abuse."
134. Indisputably, a writ of quo warranto can be issued inter alia
when the appointment is contrary to the statutory rules as has been
held by this Court in High Court of Gujarat v. Gujarat Kishan Mazdoor
Panchayat (2003) 4 SCC 712 and R.K. Jain v. Union of India (1993) 4
SCC 119. (See also Mor Modern Coop. Transport Society Ltd. v. Govt.
of Haryana (2002) 6 SCC 269. In Duryodhan Sahu (Dr.) v. Jitendra
Kumar Mishra (1998) 7 SCC 273, this Court has stated that it is not
for the court to embark upon an investigation of its own to ascertain
the qualifications of the person concerned. (See also Arun Singh v.
State of Bihar (2006) 9 SCC 375.) We may furthermore notice that
while examining if a person holds a public office under valid authority
or not, the court is not concerned with technical grounds of delay or
motive behind the challenge, since it is necessary to prevent
continuance of usurpation of office or perpetuation of an illegality.
[See Kashinath G. Jalmi (Dr.) v. Speaker [(1993) 2 SCC 703] .]
135. Issuance of a writ of quo warranto is a discretionary remedy.
Authority of a person to hold a high public office can be questioned
inter alia in the event an appointment is violative of any statutory
provisions. There concededly exists a distinction in regard to issuance
of a writ of quo warranto and issuance of a writ of certiorari. The
scope and ambit of these two writs are different and distinct. Whereas
a writ of quo warranto can be issued on a limited ground, the
considerations for issuance of a writ of certiorari are wholly different."
36. In Hari Bansh Lal Vs. Sahodar Prasad Mahto & Ors. 3
Hon'ble Supreme Court has held that for issuance of a writ of
(2010) 9 SCC 655
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quo-warranto the High Court has to satisfy itself that the
appointment was made contrary to the statutory rules and that
suitability or otherwise of the candidate for appointment to a
post is a function of appointing authority and not that of the
Court unless the appointment is contrary to the statutory
provisions/rules. Paragraph 34 of the judgment in Hari Bansh
Lal (supra) is quoted hereunder:
"34. From the discussion and analysis, the following principles
emerge:
(a) Except for a writ of quo warranto, PIL is not maintainable
in service matters.
(b) For issuance of a writ of quo warranto, the High Court has
to satisfy that the appointment is contrary to the statutory
rules.
(c) Suitability or otherwise of a candidate for appointment to a
post in government service is the function of the appointing au-
thority and not of the court unless the appointment is contrary
to statutory provisions/rules."
37. In Central Electricity Supply Utility of Odisha Vs.
Dhobei Sahoo & Ors.4, the apex Court has observed that
jurisdiction of the High Court for issuing a writ of quo-warranto is
limited and it can only be issued when the person holding the
public office lacks the eligibility criteria. The Court further holds
that the basic purpose of writ of quo-warranto is to confer
jurisdiction on the constitutional Courts to see that a public office
(2014) 1 SCC 161
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is not held by an usurper. Paragraphs 18, 19, 20 and 21 of the
judgment in Central Electricity Supply Utility of Odisha
(supra) are also relevant to be referred, which are as under:
"18. In University of Mysore v. C.D. Govinda Rao [AIR 1965 SC
491] Gajendragadkar, J. (as His Lordship then was) speaking for
the Constitution Bench, has stated thus: (AIR p. 494, para 7)
"7. ... 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. In other words, the procedure of quo warranto
confers jurisdiction and authority on the judiciary to
control executive action in the matter of making
appointments to public offices against the relevant
statutory provisions; it also protects a citizen from being
deprived of public office to which he may have a right. It
would thus be seen that if these proceedings are adopted
subject to the conditions recognised 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 connivance of the executive or with its active
help, and in such cases, if the jurisdiction of the courts to
issue writ of quo warranto is properly invoked, the usurper
can be ousted and the person entitled to the post allowed
to occupy it. It is thus clear that before a citizen can claim
a writ of quo warranto, he must satisfy the Court, inter
alia, that the office in question is a public office and is held
by usurper without legal authority, and that necessarily
leads to the enquiry as to whether the appointment of the
said alleged usurper has been made in accordance with
law or not."
(emphasis supplied)
19. In High Court of Gujarat v. Gujarat Kishan Mazdoor
Panchayat [(2003) 4 SCC 712 : 2003 SCC (L&S) 565] S.B. Sinha,
J., in his concurring opinion, while adverting to the concept of
exercise of jurisdiction by the High Court in relation to a writ of
quo warranto, has expressed thus: (SCC pp. 730-31, paras 22-
23)
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"22. The High Court in exercise of its writ jurisdiction in a
matter of this nature is required to determine at the outset
as to whether a case has been made out for issuance of a
writ of certiorari or a writ of quo warranto. The jurisdiction
of the High Court to issue a writ of quo warranto is a
limited one. While issuing such a writ, the Court merely
makes a public declaration but will not consider the
respective impact on the candidates or other factors which
may be relevant for issuance of a writ of certiorari. (See
R.K. Jain v. Union of India [R.K. Jain v. Union of India,
(1993) 4 SCC 119 : 1993 SCC (L&S) 1128 : (1993) 25 ATC
464] , SCC para 74.)
23. A writ of quo warranto can only be issued when the
appointment is contrary to the statutory rules. (See Mor
Modern Coop. Transport Society Ltd. v. State of Haryana
[(2002) 6 SCC 269] .)"
(emphasis supplied)
20. In Centre for PIL v. Union of India [(2011) 4 SCC 1 : (2011)
1 SCC (L&S) 609] a three-Judge Bench, after referring to the
decision in R.K. Jain [R.K. Jain v. Union of India, (1993) 4 SCC 119
: 1993 SCC (L&S) 1128 : (1993) 25 ATC 464] , has ruled thus:
(Centre for PIL case [(2011) 4 SCC 1 : (2011) 1 SCC (L&S) 609] ,
SCC p. 29, para 64)
"64. Even in R.K. Jain case [R.K. Jain v. Union of India,
(1993) 4 SCC 119 : 1993 SCC (L&S) 1128 : (1993) 25 ATC
464] , this Court observed vide para 73 that judicial review
is concerned with whether the incumbent possessed
qualifications for the appointment and the manner in
which the appointment came to be made or whether the
procedure adopted was fair, just and reasonable. We
reiterate that the Government is not accountable to the
courts for the choice made but the Government is
accountable to the courts in respect of the
lawfulness/legality of its decisions when impugned under
the judicial review jurisdiction."
(emphasis in original)
21. From the aforesaid exposition of law it is clear as noonday
that the jurisdiction of the High Court while issuing a writ of quo
warranto is a limited one and can only be issued when the
person holding the public office lacks the eligibility criteria or
when the appointment is contrary to the statutory rules. That
apart, the concept of locus standi which is strictly applicable to
service jurisprudence for the purpose of canvassing the legality
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or correctness of the action should not be allowed to have any
entry, for such allowance is likely to exceed the limits of quo
warranto which is impermissible. The basic purpose of a writ of
quo warranto is to confer jurisdiction on the constitutional courts
to see that a public office is not held by usurper without any
legal authority."
38. The apex court in Central Electricity Supply Utility of
Odisha (supra) has noticed the observations made in R.K.Jain
Vs. Union of India5, which is to the effect that the Government
is not accountable to the Court for the choice made but the
Government is accountable to the Courts in respect of the
lawfulness/legality of its decisions when impugned under the
judicial review jurisdiction. We may also note that in Central
Electricity Supply Utility of Odisha (supra), Hon'ble
Supreme Court has also noticed its judgement in High Court of
Gujarat Vs. Gujarat Kishan mazdoor Panchayat 6, wherein it
has been held that jurisdiction of the High Court to issue a writ
of quo-warranto is a limited one and that while issuing such a
writ, the Court merely makes a public declaration but will not
consider the respective impact on the candidates or other factors
which may be relevant for issuance of a writ of certiorari.
(Emphasis supplied)
(1993) 4 SCC 119
(2003) 4 SCC 712
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39. Noticing Gujarat Kishan mazdoor Panchayat (supra)
again in Bharati Reddy Vs. State of Karnataka & Ors. 7,
Hon'ble Supreme Court has held that the only question which
needs to be considered for issuance of a writ of quo-warranto is
as to whether the incumbent concerned fulfills the qualifications
laid down under the statutory provisions or not and that this is
the limited scope of inquiry. Paragraph 36 in Bharati Reddy
(supra) runs as under:
"36. In High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat,
(2003) 4 SCC 712 in a concurring judgment S.B. Sinha, J. (as his
Lordship then was) noted that the High Court [Gujarat Mazdoor
Panchayat v. State of Gujarat, 2001 SCC OnLine Guj 76 : (2001) 4
LLN 319] in exercise of its writ jurisdiction in a matter of this nature is
required to determine at the outset as to whether a case has been
made out for issuance of a writ of certiorari or a writ of quo warranto.
However, the jurisdiction of the High Court to issue a writ of quo
warranto is a limited one. While issuing such a writ, the Court merely
makes a public declaration but will not consider the respective impact
of the candidates or other factors which may be relevant for issuance
of a writ of certiorari. The Court went on to observe that a writ of quo
warranto can only be issued when the appointment is contrary to the
statutory rules as held in Mor Modern Coop. Transport Society Ltd. v.
State of Haryana [Mor Modern Coop. Transport Society Ltd. v. State
of Haryana, (2002) 6 SCC 269] . The Court also took notice of the
exposition in R.K. Jain v. Union of India [R.K. Jain v. Union of India,
(1993) 4 SCC 119 : 1993 SCC (L&S) 1128] . The Court noted that
with a view to find out as to whether a case has been made out for
issuance of quo warranto, the only question which was required to be
considered was as to whether the incumbent fulfilled the qualifications
laid down under the statutory provisions or not. This is the limited
scope of inquiry. Applying the underlying principle, the Court ought
not to enquire into the merits of the claim or the defence or
explanation offered by the appellant regarding the manner of issuance
of income and caste certificate by the jurisdictional authority or any
matter related thereto which may be matter in issue for scrutiny
concerning the validity of the caste certificate issued by the
jurisdictional statutory authority constituted under the State Act of
(2018) 6 SCC 162
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1990 and the Rules framed thereunder. That inquiry may require
examination of all factual aspects threadbare including the legality of
the stand taken by the appellant herein."
40. The Hon'ble Supreme Court in State of West Bengal Vs.
Anindya Sundar Das & Ors. 8 has reviewed the line of cases
where the terms on which a writ of quo-warranto can be issued.
Referring to Gujarat Kishan mazdoor Panchayat (supra),
Central Electricity Supply Utility of Odisha (supra),
Bharati Reddy (supra) and other judgments, the apex Court in
Anindya Sundar Das (supra), has concluded that the Court
has settled the position that a writ of quo-warranto can be
issued wherein an appointment has not been made in
accordance with law. Paragraph 29 to 34 of the report in
Anindya Sundar Das (supra) are as under:
"29. Through a line of cases, this Court has laid out the terms on
which the writ of quo warranto may be exercised. In University of
Mysore v. C.D. Govinda Rao [University of Mysore v. C.D. Govinda
Rao, 1963 SCC OnLine SC 15 : (1964) 4 SCR 575] , a Constitution
Bench of this Court, speaking through Gajendragadkar, J. (as he then
was), held that : (SCC OnLine SC para 6)
6. ... 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. In other words, the
procedure of quo warranto confers jurisdiction and authority on
the judiciary to control executive action in the matter of making
appointments to public offices against the relevant statutory
provisions; it also protects a citizen from being deprived of
(2022) 16 SCC 318
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public office to which he may have a right. It would thus be
seen that if these proceedings are adopted subject to the
conditions recognised 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 connivance of the
executive or with its active help, and in such cases, if the
jurisdiction of the courts to issue writ of quo warranto is
properly invoked, the usurper can be ousted and the person
entitled to the post allowed to occupy it. It is thus clear that
before a citizen can claim a writ of quo warranto, he must
satisfy the court, inter alia, that the office in question is a public
office and is held by usurper without legal authority, and that
necessarily leads to the enquiry as to whether the appointment
of the said alleged usurper has been made in accordance with
law or not.
(emphasis supplied)
30. In High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat
[High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (2003)
4 SCC 712 : 2003 SCC (L&S) 565] , in his concurring opinion in a
three-Judge Bench, S.B. Sinha, J. held that : (SCC pp. 730-31, paras
22-23)
"22. The High Court in exercise of its writ jurisdiction in a
matter of this nature is required to determine at the outset as
to whether a case has been made out for issuance of a writ of
certiorari or a writ of quo warranto. The jurisdiction of the High
Court to issue a writ of quo warranto is a limited one. While
issuing such a writ, the Court merely makes a public declaration
but will not consider the respective impact on the candidates or
other factors which may be relevant for issuance of a writ of
certiorari. (See R.K. Jain v. Union of India [R.K. Jain v. Union of
India, (1993) 4 SCC 119 : 1993 SCC (L&S) 1128] , para 74.)
23. A writ of quo warranto can only be issued when the
appointment is contrary to the statutory rules. (See Mor Modern
Coop. Transport Society Ltd. v. State of Haryana [Mor Modern
Coop. Transport Society Ltd. v. State of Haryana, (2002) 6 SCC
269] .)"
31. In B. Srinivasa Reddy v. Karnataka Urban Water Supply &
Drainage Board Employees' Assn. [B. Srinivasa Reddy v. Karnataka
Urban Water Supply & Drainage Board Employees' Assn., (2006) 11
SCC 731 (2) : (2007) 1 SCC (L&S) 548 (2)] , the limitations of the
writ of quo warranto were elaborated upon by a two-Judge Bench of
this Court. The Court observed : (SCC pp. 754-55, paras 49 & 51)
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"49. ... The jurisdiction of the High Court to issue a writ of quo
warranto is a limited one which can only be issued when the
appointment is contrary to the statutory rules.
51. It is settled law by a catena of decisions that the court
cannot sit in judgment over the wisdom of the Government in
the choice of the person to be appointed so long as the person
chosen possesses the prescribed qualification and is otherwise
eligible for appointment. This Court in R.K. Jain v. Union of
India [R.K. Jain v. Union of India, (1993) 4 SCC 119 : 1993
SCC (L&S) 1128] was pleased to hold that the evaluation of the
comparative merits of the candidates would not be gone into in
a public interest litigation and only in a proceeding initiated by
an aggrieved person, may it be open to be considered. It was
also held that in service jurisprudence it is settled law that it is
for the aggrieved person, that is, the non-appointee to assail
the legality or correctness of the action and that a third party
has no locus standi to canvass the legality or correctness of the
action. Further, it was declared that public law declaration
would only be made at the behest of a public-spirited person
coming before the court as a petitioner."
(emphasis supplied)
32. In Central Electricity Supply Utility, Odisha v. Dhobei Sahoo
[Central Electricity Supply Utility, Odisha v. Dhobei Sahoo, (2014) 1
SCC 161 : (2014) 1 SCC (L&S) 1] , another two-Judge Bench of this
Court reiterated that : (SCC p. 174, para 21)
"21. ... the jurisdiction of the High Court while issuing a writ of
quo warranto is a limited one and can only be issued when the
person holding the public office lacks the eligibility criteria or
when the appointment is contrary to the statutory rules. That
apart, the concept of locus standi which is strictly applicable to
service jurisprudence for the purpose of canvassing the legality
or correctness of the action should not be allowed to have any
entry, for such allowance is likely to exceed the limits of quo
warranto which is impermissible. The basic purpose of a writ of
quo warranto is to confer jurisdiction on the constitutional
courts to see that a public office is not held by usurper without
any legal authority."
(emphasis supplied)
33. More recently, in Bharati Reddy v. State of Karnataka [Bharati
Reddy v. State of Karnataka, (2018) 6 SCC 162] , a three-Judge
Bench of this Court, of which one of us (D.Y. Chandrachud, J.) was a
part, noted the line of precedent clarifying the remit of the writ of quo
warranto.
34. Through these decisions, the Court has settled the position that
the writ of quo warranto can be issued where an appointment has not
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been made in accordance with the law. Accordingly, the rival
contentions must be analysed by dealing with the scheme of the
statutory provisions governing the appointment and reappointment of
the VC."
41. From a closer analysis of the afore-quoted judgments, it is,
thus, clear that while exercising the jurisdiction under Article 226
of the Constitution of India, where a prayer is made for issuance
of a writ of quo-warranto, this Court has to bear in mind the
distinction between the terms on which a writ of quo-warranto
can be issued and the terms on which a writ of certiorari can be
issued. The scope of enquiry for issuing a writ of quo-warranto
is limited only to determination of the issue as to whether the
appointment of the public office concerned has been made by
the competent authority and as to whether while making
appointment to such public office, the statutory prescriptions
have been followed or not. In an inquiry for issuing a writ of
quo-warranto, the Court will, thus, not be concerned as to the
choice made by the public authority for making appointment to
public office and the Court will not consider the respective
impact on the candidates or other factors which need to be taken
into account while considering a prayer for issuance of a writ of
certiorari. Broadly speaking, it is the eligibility and not the merit
of the candidate which needs to be enquired into by this Court
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while examining a prayer for issuance of a writ of quo-warranto.
(F) Discussion:
42. In the light of the settled position of law relating to
issuance of writ of quo-warranto, we now proceed to discuss and
analyze the submissions made on behalf of the respective parties
for and against the prayer made in the petition.
43. Based on the judgment in N. Kannadasan (supra), the
petitioner has submitted that the phrase "who is or has been, in
service" occurring in the first proviso appended to Section 22 of
the Act, 2016 would mean "who is or has been, in service
without blemish". There cannot be any quarrel so far as the
legal principle laid down in N. Kannadasan (supra) is
concerned. We, thus, need to examine as to whether on the
basis of material pleaded by the petitioner in this petition it can
be said or concluded that respondent No.2 carried any blemish in
his service career while he was serving the State Government.
The petitioner has relied upon two materials, viz. (i) the request
made by the Anti Corruption Bureau with the State Government
to inquiry into the alleged misconduct of respondent No.2 in
relation to a tender procedure undertaken for construction of
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Mumbai-Pune Expressway, under Section 17(A) of the Act, 1988.
It is true that the Additional Director General, Anti Corruption
Department had written a letter on 26 th November 2020 to the
State Government seeking permission to conduct an inquiry as
per the requirement of Section 17(A) of the Act, 1988, however,
the State Government has not given any such permission.
Section 17(A) of the Act, 1988 injuncts a Police Officer not to
conduct any inquiry or investigation into any offence alleged to
have been committed by public servant under the said Act where
alleged offence is relatable to any recommendation made or
decision taken by such public servant in discharge of his official
functions or duties, without previous approval of the
Government. It is not in dispute that the alleged misconduct in
respect of which the letter date 26 th November 2020 was written
by the Anti Corruption Department to the State Government
related to a decision of which respondent No.2 was a part which
was taken while he discharged his official duties and functions.
Thus, without previous approval of the State Government as per
requirement of Section 17(A) of the Act, Section 17(A) of the
Act, 1988 no inquiry or investigation could be conducted by the
Anti Corruption Bureau.
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44. Section 17(A) of the Act, 1988 was inserted by Act 16 of
2018 w.e.f. 26th July 2018 that provides an umbrella for
protecting the Government servants in relation to the decisions
taken by them in discharge of their official functions and duties
and unless the State Government forms an opinion for giving its
previous approval for making inquiry or investigation by the
Police Officer, such alleged offence or misconduct cannot be
inquired into. In the instant case, admittedly, no such previous
approval has been accorded by the State Government and as
such we are of the considered opinion that merely on account of
the request made by the Anti Corruption Department to the
State Government for according previous approval as per the
requirement of Section 17(A) of the Act, Section 17(A) of the
Act, 1988, it cannot be said that respondent No.2 has any
blemish in respect of the functions and duties discharged by him
which led to the decision of the State Government regarding the
tender procedure adopted for the construction of Mumbai-Pune
Expressway.
45. The only other material relied upon by the petitioner for
submitting that respondent No.2 carried a blemish is the order
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dated 24th February 2020 passed by this Court in Commercial
Execution Application No.310 of 2019. In this regard we may
note that in a subsequent order dated 28 th February 2020, on a
praecipe moved, this Court noted the submissions made in
respect of clarifying the averments made in the affidavit filed by
respondent No.2 on the basis of which the order dated 24 th
February 2020 was passed and further, the Court recorded
reference to the note dated 25th November 2019 which was,
inadvertently not pointed out to the Court when the matter was
heard and order was passed on 24th February 2020.
46. Further, the review petition filed by the State Government
against the consent order passed on 12 th December 2019 in the
same Commercial Execution Application No.310/2019 was
rejected by the Court vide order dated 5 th March 2021. It is also
to be noted that while dismissing the review petition against the
consent order dated 12th December 2019, the Court has clearly
observed that it cannot be said that such senior officers who
were involved in the decision making process, had either acted
illegally or played fraud on the Government to make such
payment, merely because the decision to settle the dispute was
taken prior to formation of democratically elected Government.
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The Court also noted that it cannot be concluded that the
consent terms stood vitiated by fraud or that in any manner
fraud was played on the Court, which is apparent from a perusal
of paragraph 55 of the order dated 5 th March 2021. In view of
the order dated 28th February 2020 passed by the court noticing
the clarification given in relation to the affidavit filed by
respondent No.2 in Commercial Execution Application
No.310/2019 and also taking into account the order dated 5 th
March 2021 whereby review petition of the State Government
against the consent order passed in the said Commercial
Execution Application No.310/2019 was dismissed recording a
finding that the Officers (which included the respondent No.2 as
well) involved in the decision making process have either acted
illegally or played fraud on the Government to make such
payment, we are of the opinion that merely on the basis of
certain observations made by the Court in its earlier order dated
24th February 2020, can it be concluded that respondent No.2
carries any blemish.
47. The law relating to the parameters on which a writ of quo-
warranto can be issued by this Court in exercise of its
jurisdiction under Article 226 of the Constitution of India has
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been discussed above. Now what needs to be seen by the Court
is as to whether the appointment of respondent No.2 was made
following the statutory prescription available in the Act, 2016
and Rules, 2017. Qualification of Chairperson is prescribed in
Section 22. Respondent No.2 has been associated with public
administration while serving the State Government in his
capacity as a Member of Indian Administrative Service and has
held the requisite post while serving the State Government as
per the prescription available in the first proviso appended to
Section 22. Thus, it cannot be said that respondent No.2, in any
manner, lacks the requisite qualification prescribed under
Section 22 of the Act, 2016.
48. The procedure for selection of Chairperson is provided in
Rule 4 of the Rules, 2017. There is no averment in the PIL
petition that the Selection Committee, in terms of Rule 4 of the
Rules, 2017 was not properly constituted. It is also not disputed
by the petitioner that the Selection Committee had
recommended the name of respondent No.2 for appointment as
Chairperson. No other flaw in the process adopted by the
Selection Committee and the State Government while making
recommendation of respondent No.2 and his appointment as
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Chairperson of the Authority has been pointed out which can be
said, in any manner, to have contravened the provisions
contained in Section 22 of the Act, 2016 or Rule 4 of Rules,
2017. In absence of any other material to establish
contravention of any statutory prescription available either in the
Act, 2016 or Rules, 2017, we have no hesitation to arrive at a
conclusion that the petitioner has utterly failed to make out a
case for grant of the prayer for issuance of a writ of quo-
warranto whereby respondent No.2 can be removed from the
office of Chairperson of the Authority.
49. It is not a case where a writ of certiorari has been sought
for quashing the appointment of respondent No.2 as Chairperson
of the Authority on the ground available for grant of prayer for a
writ of certiorari.
50. As already noticed above, the scope of inquiry for issuing a
writ of quo-warranto is limited to determining as to whether the
appointment of a public servant has been made to a public office
in contravention of any statutory provision.
51. Hon'ble Supreme Court has already held what while issuing
a writ of quo-warranto, the Court merely makes a public
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declaration that while making the appointment in question
certain statutory provisions were contravened. The Court may
not go into the impact on the candidate of other factors which
may be relevant for issuance of a writ of certiorari. The scope of
inquiry for considering the prayer for issuance of quo-warranto is
confined to examine as to whether the appointee concerned
fulfills the qualification laid down in the statutory provision or
not.
52. As laid down in R.K.Jain (supra) and reiterated in
Central Electricity Supply Utility of Odisha (supra), the
Government is not accountable to the Court for the choice made
by it for appointment to a public office but the Government is
only accountable to the Court in respect of lawfulness/legality of
its decision when challenged before the superior Courts on the
touchstone of as to whether the statutory provisions relating to
appointment to the public office concerned have been followed
or not.
53. So far as the reliance placed by the petitioner on the
judgment in the case of Centre for PIL and Anr. (supra) is
concerned, it is to be noticed that in the said case the matter
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pertained to recommendation made by the High Powered
Committee recommending the name of an individual for being
appointed as Chief Vigilance Commissioner under the proviso to
Section 4(1) of the Central Vigilance Commission Act, 2003. An
FIR was registered under Section 3(2) read with Section 13(1)
(d) of the Act, 1988 and Section 120B of the Indian Penal Code
and further, after completion of investigation, the State had
sought sanction from the Department of Personnel and Training
of the Government of India to prosecute the persons concerned.
The candidate in respect of whom the recommendation was
made was added as an accused in the case filed in the criminal
Court. The Hon'ble Supreme Court in this situation opined that if
the selection adversely affects the institutional competence and
functioning it shall be duty of the High Powered Committee not
to recommend such a candidate and thus finding fault with the
decision making process relating to the recommendations,
declared the recommendation of the High Powered Committee to
be non-est in law. The Hon'ble Supreme Court, while arriving at
the said conclusion also noticed that apart from the pending
criminal proceedings, under Section 13(1)(d) of the Act, 1988
and Section 122-B of the Indian Penal Code, there were various
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notings of the Department of Personnel and Training
recommending disciplinary proceedings against the individual
who was recommended for being appointed as Chief Vigilance
Commissioner. The Court also found that the said notings were
not considered by the High Powered Committee. The Supreme
Court, in the facts of the said case, found that even on personal
integrity the High Powered Committee had not considered the
relevant material.
54. In the instant case as noticed above, the petitioner has
relied upon two materials for emphasizing that respondent No.2
does not have unblemished record. In respect of both such
materials, viz. (i) request of the Anti Corruption Department to
the State Government for conducting inquiry as per the
requirement of Section 17(A) of the Act, 1988, and (ii) the order
dated 24th February 2020, a detailed discussion has already been
made above in the preceding paragraphs of this judgment. In
our opinion, the judgment of the Hon'ble Supreme Court in
Centre for PIL (supra) does not help the case of the petitioner
in any manner.
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(G) Conclusion:
55. On the basis of material placed before us, it cannot be said
that appointment of respondent No.2 to the office of Chairperson
of the Authority or the recommendation made by the Selection
Committee for the said purpose suffer from violation of any
statutory prescription available either in the Act, 2016 or the
Rules, 2017 and therefore, it cannot be said that respondent
No.2 holds his office without any authority. For these reasons
we conclude that respondent No.2 cannot be said to be an
usurper of the office of the Chairperson of the Authority.
56. For the discussion made and the reasons given above, we
are of the considered opinion that the PIL petition lacks merit
which is accordingly dismissed.
57. However, in the facts of the case, there will be no order as
to costs.
58. Interim application(s), if any, stands disposed of.
(AMIT BORKAR,J.) (CHIEF JUSTICE)
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