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Judgment
M.N. Chandurkar, C.J.—The appellant had filed a writ petition seeking a writ of quo warranto against respondent No. 1, the Governor of
Tamil Nadu, on the ground that he has violated the provisions of the Constitution of India in as much as he allowed the executive powers under the
Constitution to be exercised only by the Chief Minister, as no other ministers were appointed till the petition was filed, after the Chief Minister was
sworn in on the 10th of February, 1985. The averments made by him show that according to the appellant petitioner, the Governor had taken oath
of office as provided under Art. 159 of the Constitution by which he declared that he will abide by the provisions of the Constitution of India and
the law. According to him even though the executive power of the State is vested in the Governor by Art. 154, he cannot discharge any of his
functions in the absence of the aid and advice of a properly constituted Council of Ministers. The writ petition asking for a writ of quo warranto
against respondent No. 1, has been dismissed by the learned single Judge of this Court. In this appeal, it has been vehemently pressed upon us that
under Art. 156(1) of the Constitution, the Governor holds office during the pleasure of the President and if the President declines to withdraw his
pleasure, even though the Governor has acted in violation of the Constitution, the only remedy open to a citizen is to approach the High Court
under Art. 226 of the Constitution of India for a writ of quo warranto. It is difficult for us to see how the appellant can at all ask for a writ of quo
warranto against respondent No. 1. He is not disputing the fact that as required by Art. 155 of the Constitution respondent No. 1 has been
appointed by the President by warrant under his hand and seal. What is canvassed is that subsequent to the appointment, the Governor has
committed a breach of his obligations under the Constitution of India because he has acted in breach and disregard of the oath which was taken by
him under Art. 159 to preserve, protect and defend the Constitution and the law. The breach of this oath, according to the appellant lies in the fact
that the executive power of the State which vests in the Governor under Art. 154 can be exercised by him only with the aid and advice of the
Council of Ministers, he has exercised those powers only on the advice of the Chief Minister, who alone was sworn in on the 10th February, 1985
and no other Ministers were sworn in at all till the 13th February, 1985 when the writ petition was filed.
The whole argument proceeds on a misconception of the nature of the Writ of quo warranto. The writ of quo warranto is issued in the exercise
of jurisdiction of the High Court to protect the public from usurpers of public office. Before a writ of quo warranto is issued, it must be established
that the holder of the public office against whom such a writ is asked does not have the legal right to hold that public office. In so far as the present
case is concerned, it is not in dispute that the Governor has been duly appointed in accordance with the provisions of Art. 155, He has, therefore,
a constitutional right to hold office under Art. 156 of the Constitution, as long as the President does not withdraw his pleasure. It is also an
admitted fact that his eligibility to be a Governor as contemplated by Art. 157 has not in any way way ceased. There is no provision in the
Constitution of India under which he can be said to have vacated office. There is, therefore no doubt that as long as the President of India does not
withdraw his pleasure, he has a right to hold the office of the Governor to which he has been properly appointed.
In support of the petition, it is urged by the counsel that if a person who is 34 years of age is appointed as a Governor, though Art. 157 of the
Constitution requires that a citizen of India has to be 35 years of age before he can be eligible for appointment of Governor, a writ of quo warranto
will issue to such a person. The second illustration given is that since only the citizens of India can be appointed as a Governor, in case a person
who is appointed as Governor, acquires foreign citizenship, a writ of quo warranto can issue. By analogy it is urged before us that if the Governor
has violated any Constitutional provision, a writ of quo warranto must also issue. With respect, the learned counsel fails to see that the two
illustrations taken by him turn on the eligibility as expressly provided for in Art. 157 of the Constitution of India. It is a matter of debate as to
whether a breach of any Constitutional provision has occurred during the period when only the Chief Minister was functioning and no other
Ministers in the cabinet were sworn in and appointed. In any case, it is difficult to see how it can be urged that the Governor must be deemed to
have vacated the office of the Governor, when there is no provision to that effect in the Constitution of India. The writ petition was wholly
misconceived and was rightly dismissed. The appeal also deserves dismissal, and it is accordingly dismissed. An oral request is made by the
learned counsel for the appellant for leave to appeal to the Supreme Court. Request rejected.