Dineshwar Prasad vs The State of Bihar and Another

S.P. Sinha, J.—By this application, under Article 226 of the Constitution of India, the petitioner prays for quashing the Order contained in An-nexure ''1'' dated 23rd Oct., 1978, appointing respondent No. 2 as Chairman, Bihar State Housing Board, on the ground that it was illegal and ultra vires of Section 7 of the Bihar State Housing Board Second Ordinance, 1978 (Bihar Ordinance No. 105 of 1978) (since replaced by Bihar Ordinance No. 43 of 1979), hereinafter referred to as the Ordinance. The further prayer is to restrain respondent No. 2 from functioning as the Chairman of the Bihar State Housing Board (hereinafter referred to as the Board). In other words, the first prayer is one for issue of a writ of mandamus and the second prayer is for the issue of a writ of quo warranto. The manner, in which the two prayers have been combined in this petition, has led to confusion as to what actually the petitioner wanted -- whether a writ of mandamus against the State Government or a writ of quo warranto against respondent No. 2. In the course of the argument, however, learned counsel for the petitioner has explained the petition to be one seeking a writ of quo warranto against respondent No. 2, restraining the latter from functioning as Chairman of the Board.

The facts are simple:

By the notification contained in An-nexure ''I'', the State Government reconstituted the Bihar State Housing Board, nominating respondent No. 2 as its Chairman. Certain other persons were also nominated to the other posts in the said Board, but we are not concerned with those appointments. We are concerned only with the appointment of respondent No. 2 as the Chairman of the said Board. This notification was made on the 23rd Oct., 1978 in terms of the Bihar Ordinance No. 105 of 1978. Admittedly, at the relevant time, when the respondent No. 2 was nominated as the Chairman of the said Board, he was also a sitting Member of the Legislative Council of the State. In his Counter-affidavit he has added certain other posts which he was holding at the relevant time, i.e., Pro-Chairman Bihar State Sports Council and President of the Bihar Women''s Sports Association and Member of the Patna Regional Development Authority.

Now according to the petitioner, in terms of Section 7 of the Ordinance, if a person undertook any work unconnected with his office of Chairmanship of the said Housing Board, he had to obtain the sanction of the State Government for undertaking such work or works. In the instant case, it is stated that respondent No. 2 has been holding the office of the Chairman of the said Housing Board without obtaining sanction of the State Govt. for functioning as Member of the Legislative Coun-cil or for any other jobs which were unconnected with the work of his office of Chairman of the said Housing Board. It is, therefore, submitted that respondent No. 2 must be restrained from functioning as the Chairman of the said Housing Board and the said poet must be declared as vacant by issuing a writ of quo warranto against the said respondent.

The stand taken by respondent No. 2 is that the State Government having appointed him to the post of Chairman of the said Housing Board with full knowledge of the other posts which he was holding, the sanction by the State Government for holding the other posts, while holding the post of the Chairman of the said Housing Board, must be implied and that, there-fore, the petition must fail.

The stand taken by respondent No. 1, the State of Bihar however, contradicts the stand taken by respondent No. 2. According to respondent No. 1, the provisions enumerated in the Ordinance do not debar appointment as Chairman of a man like respondent No, 2, who is a member of the Legislative Council President of the Bihar Wowen''s Sports Association; Member of the Patna Regional Development Authority and Pro-Chairman Bihar State Sports Council. ''In any event, therefore, the appointment was made with the State Government''s sanction''.

According to respondent No. 1, therefore, firstly no sanction was needed, in the case of respondent No. 2, to appoint him as Chairman of the said Housing Board, and if any was needed, it was given by the State Government. We specifically called upon the learned counsel for the State to produce any order indicating such sanction having been given by the State Government, but no such sanction could be produced.

It cannot be gainsaid that when the law requires the State Government to do a thing, any order passed in connection with that thing must be in writing--at least it cannot be oral, in so far as the acts performed by the State Government are concerned. In the absence of any order, giving sanction to respondent No. 2 to continue to function in the offices unconnected with the work of Chairman, it appears that no such sanction has been given by the State Government and that it has depended upon its understanding of the provisions contained in the Ordinance, that no sanction was needed for appointing a person like respondent No. 2 as the Chairman of the said Housing Board.

Learned counsel for the petitioner has, therefore, assailed the right of respondent No. 2 to continue to function as the Chairman of the said Housing Board in breach of the express provisions of Section 7 of the Ordinance, According to learned counsel for the petitioner, a writ of quo warranto must be issued against respondent No. 2, restraining him from functioning as the Chairman of the said Housing Board and also declaring the said office as vacant.

Learned counsel, appearing for respondent No. 2, has submitted that the petition for issuance of a writ of quo warranto was not maintainable at all. He has given three reasons to support his contention. The first reason is that the appointment, when made being valid, it could not be said to be a void appointment even if some of the provisions of the Ordinance were not observed, but only voidable. The second reason is that the breach complained of, is the breach of the provisions of Section 7 of the Ordinance, The provisions contained in that section were in their nature not mandatory but directory, so that even If any breach had occurred, it did not make the appointment a nullity. The last reason is that, in any event, the petitioner had alternative remedy available by moving the State Government u/s 9 of the Ordinance.

In my opinion, the arguments advanced on behalf of respondent No. 2, may have held good, in case the petitioner had sought the issuance of a writ of mandamus, but they do not hold good in so far as it concerns the issuance of a writ of quo warranto.

I will first take up the second reason advanced by learned counsel for the respondent No. 2, regarding the nature of the provisions contained in Section 7 of the Ordinance. The provisions contained in Section 7 of the Ordinance reads as under :--

"Chairman to be wholetime officer --(1) The Chairman shall be a wholetime officer of the Board, and shall not undertake any work unconnected with his office without the sanction of the Government,

(2) He shall be paid such salary and allowances as may be fixed by the Government."

When deciding the real nature of this provision, I will assume in favour of respondent No. 2, that the provisions contained in this section are only directory in nature. The question then is, will it affect the issuance of a writ of quo warranto? The question as to whether a provision of an Act was mandatory or directory assumes relevance where the challenge is to some act done by the State in terms of the provisions of an Act. Learned counsel for respondent No. 2 has cited two decisions of the Supreme Court. namely in the case of State of U. P. v. Man-bodhan Lal Srivastava AIR 1957 SC 912) and Rani Drig Raj Kuer Vs. Raja Sri Amar Krishna Narain Singh, . He has also cited a decision of the Privy Council in case of Montreal Street Rly. Co. v. Normandin 1917 AC 170. The decisions in the case of Manbodhan Lal Srivastava (supra) and in the case of Montreal Street Rly. Co. (supra) are cases where the act of the Crown was under challenge, In the case of Manbodhan Lal Srivastava (supra), an appointment had been made by the State Government without consulting the Public Service Commission. In the case of Montreal Street Rly. Co. (supra), the Jury which had given the verdict had been appointed from a list which was not a revised list of jurors. All these acts by the State were in breach of one or the other provisions of some Act. It was in that context that the Courts tried to ascertain the nature of the relevant provisions, namely, whether the provision was mandatory or directory. If it was mandatory, any action in breach of the provision would be void and a nullity, but If tt was directory, the action in breach of the provision would not be nullity, even though the provision was made to be obeyed. In fact, in the case of Manbodhan Lal Srivastava (supra), their Lordships expressed a feeling of disapproval when the provision had not been obeyed. They observed that -

".....That does not amount to say-Ing that it is open to the Executive Government, completely to Ignore the existence of the Commission or to pick and choose cases in which it may or may not be consulted."

Since, however, the advice of the Commission was not binding on the Government, it was observed that -

"In the absence of such a binding character, it is difficult to see how non-compliance with the provisions of Article 320(3) (c) could have the effect of nullifying the final order passed by tha Government.

To a similar effect is the observation of the Supreme Court In the case of Rani Drig Raj Kuer Vs. Raja Sri Amar Krishna Narain Singh, . The observation is that -

".....A directory provision is intended to be obeyed but a failure to obey it does not render a thing duly done in disobedience of it, a nullity."

The question, as to the nature of a provision has, however, no relevance when the question involved is the right of an individual citizen to hold a public office. In such a case it was immaterial, whether the breach was of a mandatory provision of law or of a directory provision of law. The State may unwittingly take the liberty to act in violation of a directory provision of law and its action may not be a nullity, but so far as an individual citizen is concerned, he has no such right. He has to abide by the law; be its nature mandatory or be its nature directory. In the case of the King v. Speyer 1916 1 KB 595 Lord Reading, C. J., while repelling the argument, that a judgment of ouster would amount to making an order upon the sovereign, observed -

".....But a judgment against the respondents would have effect against them only; it would be an order upon the subject, not upon the Crown....."

Further on, their Lordships observed -

"It is sufficient for the present purpose to say that a judgment pronounced in favour of the relator would not involve the making by this Court of an order upon the clerk, neither would this Court be powerless to enforce the judgment if it were disobeyed by those against whom it was made. Although it may be interesting and useful for the purpose of testing the propositions under consideration to assume the difficulties suggested by the Attorney-General, none of them would in truth occur. This is the King''s Court; we sit here to administer justice and to interpret the laws of the realm in the King''s name. It is respectful and proper to assume that once the law is declared by a competent judicial authority it will be followed by the Crown."

The decision in the instant case, it must bp clearly understood, will not involve any command, direct or indirect, upon the State Government, but will involve only the usurper of the office; if the Court finds that he has held the office in breach of a provision of law, the usurper has to quit.

Having regard to the nature of the instant petition, which is one for the issuance of a writ of quo warranto against respondent No. 2, the argument, with regard to the nature of Section 1 of the Ordinance, has no relevance and the reason advanced, no reason for dismissing the writ, as not maintainable.

The next reason is that the ap-pointment of respondent No. 2 was not void but voidable. The State Government had the right to appoint any per-json u/s 4 of the Ordinance. The appointment initially made, being valid in terms of the said provision of the Ordinance, it could not subsequently be-come invalid.

This argument, in my opinion, also suffers from same falacy as was the one relating to the relevance of the nature of the provision of Section 7 of the Ordinance. It need only be reiterated that there is no challenge in this writ application to the power of the State Government to appoint any one to the post of the Chairman of the said Housing Board. The challenge is directed against the person appointed to hold that post in breach of the provision contained in Section 7 of the Ordinance. This reason, therefore, also fails.

The last reason is that if at all the remedy against the appointment lies in moving the State Government to undo what it had done, as provided in Section 9 of the Ordinance.

Such a move on the part of the petitioner would involve challenging the validity of the appoitment, as made by the State Government. Section 9 of the Ordinance has therefore, no application, where the challenge is not to the validity of the appointment, but the authority of the usurper to hold the post. This reason also fails.

All the reasons advanced in support of the argument against maintainability of the petition for issuance of a writ of quo warranto having fail-ed, the objection fails.

Turning now to the facts of the case, it is admitted that the post of the Chairman of the said Housing Board is a public office created by Ordinance No. 105 of 1978 by the State Government. It is also admitted that respondent No. 2, while being the Chairman of the said Housing Board, also functioned as member of the Bihar Legislative Council and also in certain other organisations as stated in para. 4 of his counter-affidavit. There is no averment, either in the counter-affidavit of respondent No. 1 or in the counter-affidavit of respondent No. 2, that the functions performed by him in the office other than that of the Chairman of the said Housing Board, were such functions as were connected with his office of Chairman of the said Housing Board. In fact, the argument has proceeded on the basis that the functions performed by respondent No. 2 in the other offices were wholly unconnected with the work that he had to perform as the Chairman of the said Housing Board. The counter-affidavits filed by the respondents do not establish that the State Government had granted sanction to respondent No. 2 to undertake such works as were unconnected with his office of the Chairman of the said Housing Board. To recapitulate, the stand of respondent No. 1, the State Government, is that no sanction was necessary to be given, in terms of Section 7 of the Ordinance, to a member of the Legislative Council to hold the post of the Chairman of the said Housing Board. This obviously means that, according to respondent No, 1, no sanction, as required u/s 7 of the Ordinance has been given to respondent No. 2, to undertake the work unconnected with the office of Chairman of the said Housing Board. No law has been cited in support of such a stand. Respondent No. 2 has taken the stand of sanction, having been impliedly granted. Such an implied sanction, in relation to orders passed by the State Govern-ment, is not known to law.

Now, therefore, the position is that although in terms of Section 7 of the Ordinance, the Chairman of the Housing Board being a wholetime officer of the Board, is prohibited from taking any work unconnected with his office without the sanction of the Government, respondent No. 2 has held the said office in breach of the provision of Section 7 of the Ordinance. The writ of quo war-ranto must, therefore, be issued against respondent No. 2. He is restrained forthwith from holding the office of the Chairman of the said Housing Board, which office is hereby declared vacant.

The application is allowed, but without costs.

B.S. Sinha, J.

I agree.