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Judgment
The petitioner has come up to this Court praying for the issuance of a writ mandamus to direct the Hon''ble President of India, 1st respondent
herein to dismiss the 3rd respondent, Governor of Tamil Nadu for violation of constitutional provisions pertaining to the office of Governorship.
The Office raised a question with regard to maintainability and it has been posted before me for the purpose of deciding the maintainability.
Mr. S. K. Sundaram, learned counsel for the petitioner urges that a newspaper report appeared in Indian Express recently on 23rd July, 1989
stating that ""Tamil Nadu Governor P.C. Alexander wants to enter active politics. He has conveyed this to Prime Minister Rajiv Gandhi."" This
newspaper report is published under the caption ""Alexander to contest LS polls"". In the same report, it is stated that ""When Raj Bhavan was
contacted for Dr. Alexander''s reaction, his Secretary R. Santhanam said that the Governor would not comment on his reported entry into active
Politics."" Mainly based on this newspaper report, the petitioner has Hied this writ petition as a public interest litigation.
Mr. S. K. Sundaram argues that the Governor should not enter into politics while in office. Since the news item appearing in Indian Express has
not been denied by the Governor of Tamil Nadu, this writ petition is maintainable on the ground that the Governor is violating the provisions of the
constitution. Learned counsel further contends that there is no decision on the scope of Art. 158 of the constitution so far and as such, this is fit
case in which this Court should entertain the writ petition and decide the issue. The sum and substance of the argument of Mr. Sundaram is that
according to newspaper reports, the Governor of Tamil Nadu is intending to stand for the ensuing parliamentary elections and is using the official
machinery for this purpose and has even gone to New Delhi to meet the Prime Minister at the cost of the public and as such, the Governor of
Tamil Nadu is misusing his office and he should not be allowed to continue as the Governor of Tamil Nadu.
Learned counsel for the petitioner referred to two decisions of the Supreme Court State of Rajasthan and Others Vs. Union of India and
Others, and Union of India (UOI) and Others Vs. Valluri Basavaiah Chowdhary and Others, for the proposition he is asking for.
In Part VI of the Constitution, under Art. 153, it is stated that there shall be a Governor for each State and under Art. 154, the executive power
of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with
the Constitution. Under Art. 155, the Governor of the State shall be appointed by the President by warrant under his hand and seal. Under Art.
156, it is stated that the Governor shall hold office during the pleasure of the President. Article 157 speaks of qualifications for appointment as
Governor and Art. 158 provides for conditions of Governor''s office. It is in the following terms.
158(1). The Governor shall not be a member of either House of Parliament or of a House of the Legislature of any State specified in the First
Schedule, and if a member of either House of Parliament or of a House of the Legislature of any such State be appointed Governor, he shall be
deemed to have vacated his seat in that House on the date on which he enters upon his office as Governor.
For the purpose of this case, it is enough to extract Art. 158(1). A reading of these Articles already shows that the Governor is appointed by the
President of India and he shall hold office during the pleasure of the President. It is clear from a reading of Art. 158(1) that a Governor should not
be a member of either House of Parliament or of a House of the Legislature of any State. If a member of either House of Parliament or of a House
of the Legislature of any such State is appointed Governor, he shall be deemed to have vacated his scat in that House on that date on which he
enters upon his office as Governor. Article 361(1) of the Constitution is in the following terms :
361.(1) The President, or the Governor or Rajpramukh of a State, shall not be answerable to any Court for the exercise and performance of the
powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties:
Provided that the conduct of the President may be brought under review by any Court, tribunal or body appointed or designated by either House
of Parliament for the investigation of a charge under Article 61 :
Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the
Government of India or the Government of a State.
Article 361(4) is in the following terms:
No civil proceeding in which relief is claimed against the President or the Governor of a State shall be instituted during his terms of office in any
Court in respect of any act done or purporting to be done by him in his personal property whether before or after he entered upon his office as
President, or as Governor of such State, until the expiration of two months next after notice in writing has been delivered to the President or the
Governor as the case may be, or left at his office stating the nature of the proceedings, the cause of action therefor, the name, description and place
of residence of the party by whom such proceedings are to be instituted and the relief which he claims.
In my view, the present relief is asked for only against the President of India, which I am afraid, cannot be granted in view of Art. 361 of the
Constitution of India, A Full Bench of this Court in a case which is reported in K.A. Mathialagan and Others Vs. The Governor of Tamil Nadu and
Others, considering the scope of Art. 361 of the Constitution, has approved a judgment of the single Judge of the Calcutta High Court held as
follows :
A single learned Judge of the Calcutta High Court in Biman Chandra Bose Vs. Dr. H.C. Mukherjee, Governor and Others, held that a
comparison of Cl. (1) of Art. 361 with Cl. (4) thereof made it clear that in respect of Official acts, an absolute bar was created, but in respect of
acts done in personal capacity a partial bar in the shape of notice for a period of two months prior to institution of civil proceedings was imposed.
We concur with him in this view.
In my view, the writ petition itself is not maintainable. It has to be dismissed in limine.
As has already been stated, the Governor shall hold office during the pleasure of the President under Art. 156 of the Constitution. As such, it is
not open to the petitioner to make allegations in an affidavit based on mere newspaper reports and come to this Court as if it is a public interest
litigation. Further, before approaching this Court for issuance of a writ of mandamus, there should be definite allegations made in the affidavit. The
allegations made in the affidavit are based only on newspaper report and nothing else. A learned single Judge of Rajasthan High Court had an
occasion to consider a converse case which is reported in Surya Narain Choudhary Vs. Union of India (UOI) and Others, In that case the writ
petition was filed against an order of dismissal of the Governor from his office. The learned Judge in the above mentioned case held that the
petitioner therein was not personally affected by the dismissal order and as such he could not invoke Art. 226 of the Constitution. The learned
Judge in that case further held that it lies within the power of the President to terminate in his discretion, the terms of the office of the Governor at
his pleasure and that the Presidential pleasure contemplated in the article is unjusticiable.
The cases referred to by the petitioner have no relevance at all to the facts of the case. The case reported in State of Rajasthan and Others Vs.
Union of India and Others, dealt with the satisfaction of the President under Art. 356 of the Constitution and the power of the Court to question
that satisfaction. What all is said in the decision reported in Union of India (UOI) and Others Vs. Valluri Basavaiah Chowdhary and Others, is the
term ''legislature'' in Art. 252(1) does not include Governor. That is all. So these cases have no relevance at all to the points raised by Mr. S. K.
Sundaram learned counsel for the petitioner.
Learned counsel referred to a judgment of Full Bench of this Court reported in K.S. Haja Shareff Vs. The Governor of Tamil Nadu, Madras
and Others, . That a case dealt with the power of this Court against the decision pronounced under Art. 192(1) of the Constitution of India, I am
not able to see anything in support of the petitioner''s contention raised in this case. As I have already stated, a mandamus cannot be issued on the
facts of this case.
With regard to public interest litigation, it is worthwhile to refer to the decision of the Supreme Court reported in Shri Sachidanand Pandey and
Another Vs. The State of West Bengal and Others, justice Khalid referred to Public interest litigation in this case and observed as follows :
Today public spirited litigants rush to Courts to file cases in profusion under this attractive name. They must inspire confidence in Courts and
among the public. They must be above suspicion. Public interest litigation has now come to stay. But one is led to think that it poses a threat to
Courts and public alike. Such cases are now filed without any rhyme or reason. It is therefore necessary to lay down, clear guidelines and to
outline the correct parameters for entertainment of such petitions. If Courts do not restrict the free flow of such cases in the name of Public Interest
Litigations, the traditional litigation will suffer and the Courts of law, instead of dispensing justice, will have to take upon themselves Administrative
and executive functions. This docs not mean that traditional litigation should stay out. They have to be tackled by other effective methods, like
decentralising the judicial system and entrusting majority of traditional litigation to village Courts and Lok Adalats without the usual populist stance
and by a complete restructuring of the procedural law which is the villian in delaying disposal of cases..... It is only when Courts are apprised of
gross violation of fundamental rights by a group or a class action or when basic human rights are invaded or when there are complaints of such acts
as shock the judicial conscience that the Courts, especially the Supreme Court, should leave aside procedural shackles and hear such petitions and
extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the under-dog and the neglected. It is
necessary to have some self-imposed restraint on public interest litigants.
Considering the facts of this case, I am sure this litigation cannot be stated as a public interest litigation considered in the light of the principles set
out in the Supreme Court decision cited supra. The argument of Mr. S. K. Sundaram that no reported decision is there on the scope of Art. 158,
cannot be a ground for entertaining this writ petition. It is true, there is no decision on the scope of Art. 158, because no case has arisen worth
construing of Art. 158. I do not think, the facts on hand warrant a case to be entertained and to be decided with regard to the scope of Art. 158 of
the Constitution. In my view, it can be decided in a better case with better facts. As I have already said I am not inclined to entertain this writ
petition as maintainable and as such it is dismissed.
Petition dismissed.