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2011 DIGILAW 4027 (MAD)

T. Murugan v. Union of India

2011-09-19

M.Y.EQBAL, T.S.SIVAGNANAM

body2011
Hon’ble Chief Justice & T.S.Sivagnanam, J.:-This writ petition has been filed as a Public Interest litigation for the issuance of writ of quo warranto, directing the fifth respondent, Mr.Iqbal Singh, Administrator of Puducherry, to show cause on what authority, he continues to be in office of the Administrator, Government of Union Territory of Puducherry and consequently remove him from office. 2. The Registry after scrutinizing the papers, returned the same, and to clarify whether the designation of the fifth respondent is Administrator or Lieutenant- Governor and how the relief sought for comes under the judicial purview. 3. The papers were re-presented with the endorsement that the designation of the fifth respondent is Administrator and his functioning is subject to judicial review and the writ petition is maintainable. Thereupon, the Registry placed a note before this Court as regards the maintainability of the writ petition. When the matter was posted on 26.08.2011 to decide the maintainability of the writ petition against the fifth respondent, we passed the following order:- ”Office has placed this file to decide the maintainability of the writ petition against the fifth respondent, by name, Mr.Iqbal Singh, Administrator, Government of Union Territory of Puducherry, Raj Bhavan, Puducherry as to whether the said respondent can function as the Administrator under Article 239 of the Constitution of India, when he is admittedly holding the post of Lieutenant Government of Union Territory of Puducherry. 2.Before we decide the maintainability point, we direct the petitioner to serve copies of the petition to the counsel appearing for the respondent Union Territory of Puducherry. 3.Put up after three weeks.” 4.The first and second respondents are represented by Mr.M.Ravindaran, the learned Additional Solicitor General and the respondents 3 & 4 are represented by Mr.P.S.Raman learned Senior Advocate. 5. A brief counter affidavit filed has been filed on behalf of the respondents 1 & 2 along with copy of the Presidential notification issued to the fifth respondent. 6. In order to decide the maintainability of the writ petition, it would be necessary to have a brief overview of the averments made in the writ petition to ascertain as to on what basis the petitioner seeks for issuance of writ of quo warranto against the fifth respondent. 6. In order to decide the maintainability of the writ petition, it would be necessary to have a brief overview of the averments made in the writ petition to ascertain as to on what basis the petitioner seeks for issuance of writ of quo warranto against the fifth respondent. 7.The case of the petitioner is that Puducherry, a Union Territory is administered by the President of India by appointing an Administrator under Article 239 of the Constitution of India and for such purpose the Puducherry Administration Act, 1962 was enacted as also the Government of Union Territories Act. That Section 3 of the Puducherry Administration Act enables the President of India to appoint an administrator to carry out the affairs of the Union Territory and the President of India has been appointing the administrators by designating them as Lieutenant Governor and the incumbent is administered oath under Article 159 of Constitution and he is required to act in accordance with the oath taken by him. It is further stated that the fifth respondent was appointed by the President of India on 27.07.2009 as the Administrator of Puducherry and is continuing in the post till date. The petitioner alleges that the fifth respondent abusing his position as administrator so as to gain unto himself and his family members and his close friends and relatives created a trust on 25.03.2010, the sixth respondent herein, and registered the same in the office of the District Registrar, Puducherry, as document No.288 of 2010. That the said trust consist of Mr.S.Amar Joth Singh and Mr.Abhay Singh, both sons of the fifth respondent as trustees along with their close relatives and friends and all these persons are residents of Punjab and registered the trust by just mentioning that the head office of the trust is at Puducherry, which itself has been done by abuse of power. It is further stated that on the next day i.e. 26.03.2010, an application is made to the fourth respondent for issue of essentiality certificate for starting a Medical college at Karaikal and in the proforma it has been stated that the trust own land less than 25 acres and it owns and maintains a 300 bedded hospital. The petitioner has further stated that the copy of such application has been filed in the typed set of papers and the same has been subsequently tampered to make some additions. The petitioner has further stated that the copy of such application has been filed in the typed set of papers and the same has been subsequently tampered to make some additions. It is further stated that on the next date i.e. 27.03.2010, a communication issued by the fifth respondent mentioning the details as to how the application should be made and the eligibility criteria to be met and a file note is put up on the same day and in the file note, it is mentioned that “in principle approval can be granted” and thereafter the file noting states “only after the approval of the cabinet” and since the then Health Secretary Mr.Raajiv Yaduvanshi did not approve the action of the fifth respondent he was cohersed by the fifth respondent to proceed on leave and further file notings are recorded without his signature and the fifth respondent himself issued an order on 05.04.2011 and based on such order essentiality certificate was issued to the sixth respondent trust on 25.02.2011 by the fourth respondent. The petitioner further alleges that the grant of essentiality certificate is in violation of the Government order in G.O.Ms.No.50, dated 10.11.2004 and it has been granted without establishing 300 bedded hospital and without purchasing the requisite land. Further, it is alleged that the fifth respondent usurped the plenary power of the cabinet of Ministers to take a policy decision with regard to the desirability/essentiality of a medical college. Therefore, it is stated that the fifth respondent has violated the law, the rules, regulations and every tenet of the principles enshrined in the Constitution so as to benefit his own self and his family members. 8. It is further stated that the fifth respondent has no authority whatsoever to continue as the Administrator of Union Territory of Puducherry and this was brought to the notice of the President of India and the Home Ministry by petitioner’s representation dated 30.04.2011 and petitioner conducted agitation and dharna on 05.05.2011 and 06.05.2011. It is further stated that after establishing the sixth respondent trust, the office of the trust is located at No.6 Cazi Street, Puducherry-1, which property belongs to one Mr. Kamalesh Shah, who was convicted for murder of his brother’s wife Mrs.Parvathy Shah and the said Kamalesh Shah is dead and it was reported to be a case of suicide in prison and an enquiry is being conducted. Kamalesh Shah, who was convicted for murder of his brother’s wife Mrs.Parvathy Shah and the said Kamalesh Shah is dead and it was reported to be a case of suicide in prison and an enquiry is being conducted. In the normal course, the property should have been taken over by the Government of Puducherry, however the fifth respondent entered the property and created some fictitious document as if some unknown relative of Kamalesh Shah have leased out the property to the sixth respondent. It is further stated that the fifth respondent was also questioned about the recommendation made by him for issue of passport to one Hassan Ali Khan, who is accused of defrauding the Government of India. It is further alleged that the fifth respondent runs a private cable channel named “Channel -2” and the same is functioning at Puducherry in a benami name. Further it is stated that the fifth respondent abusing his powers have allotted land at Ariyankuppam for constructing gurudwara. That the accounts reflect that the fifth respondent has incurred expenditure of Rs.1.20 lakhs every month for purchase of vegetables. That the Central Vigilance Commission has pointed out several irregularities in respect of the comprehensive sewerage project, which was allotted to a blacklisted contractor with the approval of the fifth respondent. 9. With the above allegations, the petitioner states that the fifth respondent by abusing his official position as Administrator and issuing and causing issue of essentiality certificate to the sixth respondent trust for his personal benefit and for the benefit of his family members, in violation of law and Constitution, has no right to continue in office and as such a writ of quo warranto is liable to be issued. That the fifth respondent does not posses the moral or legal authority expected of him in relevance to his official position and the oath administered to him in view of his serious violations and is liable to be removed from the office of the Administrator. That the fifth respondent is liable to be removed from office in view of manifold number of allegations repeatedly made against him and cannot be permitted to continue in office. 10. That the fifth respondent is liable to be removed from office in view of manifold number of allegations repeatedly made against him and cannot be permitted to continue in office. 10. The learned counsel appearing for the petitioner after reiterating the averments made in the affidavit filed in support of the writ petition placed reliance on the decision of the Hon’ble Supreme Court in N.Kannadhasan vs. Ajoy Khose and others, (2009) 7 SCC 1 , and submitted that a writ of quo warranto can be issued to call upon the fifth respondent to show cause under what authority, he exercises his power, having forfeited it by neglect or abuse. The learned counsel placed reliance on the decision of the Hon’ble Supreme Court in Centre of PIL & Ors. vs. UOI 2011 4 SCC 1 and submitted that this Court has ample jurisdiction and authority to issue a writ of quo warranto to prevent the fifth respondent from continuing to exercise his unlawful authority and if the Court is satisfied, it can even issue a writ of declaration, as observed the Hon’ble Supreme Court. The learned counsel also relied upon the decision of the Division Bench of the Andhra Pradesh High Court in Y.S.Rajasekar Reddy Vs Nara ChandraBabu Naidu, AIR 2000 AP 142 . 11. It is further contended that in the light of the serious allegations against the fifth respondent, it is evident that he has violated the oath of office taken under Article 159 of the Constitution as he has failed to preserve, protect and defend the Constitution and the law and failed to devote himself to the service and well being of the people of Puducherry and therefore, the writ petition may be entertained. 12. 12. The learned Additional Solicitor General and the learned Senior counsel appearing for the Respondents 1 to 4 would contend that the allegations made by the petitioner in the affidavit are not germane for the decision in the writ petition for issue of writ of quo warranto and that the fifth respondent has been appointed by Her Excellency the President of India, by order dated 18, July 2009, under Article 239 of the Constitution of India and Her Excellency the President of India derives power under the Constitution to administer the Union Territory of Puducherry through an Administrator to be appointed by Her Excellency the President of India with such designation as she may specify. Therefore, there is a valid order of appointment of the fifth respondent as Lieutenant-Governor under the Constitution and he can hold office till the pleasure of the President. Therefore, it is contended that this Writ petition is devoid of merits and the same is liable to be dismissed. Further learned Additional Solicitor General submitted that the writ petitioner can seek remedy elsewhere if he is so advised and a writ of quo warranto cannot be issued against the authority who has been validity appointed under the provisions of the Constitution of India by Her Excellency the President of India. Copy of the Presidential notification has also been filed along with the counter affidavit. 13. The learned Senior counsel appearing for the third and fourth respondents placed reliance on the Constitution Bench judgment of the Hon’ble Supreme Court in AIR 1965 SC 491 ,[The University of Madras and another vs. C.D.Govinda Rao and another] wherein the Hon’ble Supreme Court has laid down the conditions to be satisfied for issuance of a writ of quo warranto and none of the conditions stipulated therein are satisfied in the instance case and the writ petition is liable to be dismissed as not maintainable. 14. We have heard the learned counsels appearing for the parties at length and perused the materials available on record. 15. The first question to be decided is as to whether the instant writ petition is maintainable against the fifth respondent who has been impleaded by name and described as the Administrator of the Union Territory of Puducherry. 16. 14. We have heard the learned counsels appearing for the parties at length and perused the materials available on record. 15. The first question to be decided is as to whether the instant writ petition is maintainable against the fifth respondent who has been impleaded by name and described as the Administrator of the Union Territory of Puducherry. 16. By virtue of Article 239(1) of the Constitution every Union Territory shall be administered by the President acting, to such extent as he thinks fit through an Administrator to be appointed by him with such designation as he may specify. Article 239(2) states that notwithstanding anything contained in Part VI of the Constitution (The States), the President may appoint, the Governor of the State as the Administrator of an adjoining Union Territory and where a Governor so appointed, he shall exercise his functions as such administrator independently of his Council of Ministers. 17. Article 159 deals with oath or affirmation by the Governor and states that every Governor and every person discharging the functions of the Governor shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of the High Court exercising jurisdiction in relation to the States, or, in his absence, the senior most Judge of that Court available, an oath or affirmation in the form given in Article 159. 18. The allegation made by the petitioner is that the fifth respondent has violated such oath and affirmation taken by him in the form stipulated in Article 159 of the Constitution. 19. The Government of India in their counter affidavit have stated that the fifth respondent has been appointed as Lieutenant-Governor, Government of Union Territory of Puducherry by Her Excellency the President of India, by a Presidential notification dated 18, July, 2009 under Article 239(1) of the Constitution of India and copy of such notification has been furnished which reads as follows:- ”By Virtue of the power vested in me by clause (1) of article 239 of the Constitution of India, I, Pratibha Devisingh Patil, President of India, hereby appoint Shri Iqbal Singh, to be the Lieutenant-Governor of Puducherry with effect from the date he assumes charge of his office. Given at Rashtrapati Bhavan, New Delhi, this eighteenth day of July in the year two thousand nine (27th Asadha, 1931 Saka,) in the sixtieth year of the Republic of India. Given at Rashtrapati Bhavan, New Delhi, this eighteenth day of July in the year two thousand nine (27th Asadha, 1931 Saka,) in the sixtieth year of the Republic of India. Sd/- P.D.Patil President of India” 20.Thus, it is seen that the fifth respondent has been appointed as Lieutenant-Governor of Puducherry by Her Excellency, President of India, under Article 239 of the Constitution of India. Article 361 of Constitution deals with Protection of President and Governors and Rajpramukhs, which reads as follows:- ”(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 Governor of India or the Government of a State (2) No criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a State, in any court during his term of office (3)No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any court during his term of office (4)any civil proceedings in which relief is claimed against the President, or the Governor of a State, shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity, 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 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.” 21. Reading of the above Constitutional provision shows that there is absolute immunity to the President and Governors of States from the legal proceedings in regard to their official acts and in respect of their acts and omissions in their personal capacity a limited immunity is conferred by clause (4) of Article 361. Thus, no Court could compel the Governor either to exercise or to forbear the exercising any power or perform any duty and they are not amenable to the writs or direction issued by any Court. Therefore, Article 361(1) is a complete bar to the maintainability of the writ petition against the Governor and in our view the fifth respondent having been appointed pursuant to a Presidential notification as a Lieutenant-Governor, the protection under Article 361 would apply, providing immunity to the fifth respondent from legal proceedings in regard to his official acts. However, this does not bar any legal proceedings against the Government, if otherwise maintainable. Though, the Governor cannot be personally, as a party or otherwise called upon to answer the charge of bad faith or lack of bonafides with reference to his official acts, but the validity of such acts is open to challenge on that ground in a Court as indicated in the second proviso to Article 361(1). Therefore, proceedings against the Government of India or its instrumentalities is not barred on account of the immunity provided to the Governor under Article 361(1). The issue regarding the immunity provided under Article 361(1) of the Constitution came up for consideration before a Full Bench of this Court in K.A. Mathialagan And Ors. vs The Governor Of Tamil Nadu And Ors, AIR 1973 Mad 198 , and the Full Bench held as follows:- ”26. A single learned Judge of the Calcutta High Court in AIR 1952 Cal 799 , held that a comparison of clause(1) of Art. 361 with clause(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. We concur with him in this view. But the learned Judge went further to observe- ”If the act is ostensibly done in exercise of the power given under the Constitution and it is not established that the act is done dishonestly or in bad faith or in other words out of any improper motive the immunity attaches to the exercise of the power.” On the facts, the learned Judge found in that case the Governor had not acted mala fide in the exercise of his powers under Art. 171. G. D. Karkare v. T. L. Shevde. AIR 1952 Nag 330 decided by a Division Bench also held the view that the immunity afforded by Art. 361 was personal to the Governor, but it did not place the actions of the Governor done or purporting to be done in pursuance of his powers and duties under the Constitution beyond the scrutiny of the Courts. We agree with this view and also with the further observation that what the Constitution establishes is supremacy of law and not of men however high-placed they might be. What was in question there was the validity of the appointment of an Advocate General and the Court held that if a question about the validity of an enactment assented to by the Governor could be considered and decided in the absence of the Governor, there was no force in the objection that an appointment made by the Governor could not be questioned in his absence. Subba Rao, C. J. as he then was of the Andhra Pradesh High Court, was of opinion in Gnanamani v. Governor of Andhra. AIR 1954 Andhra 9 that- “Under Art. 361, there is an absolute immunity for the first category of acts, but only a limited one in respect of the other two. In respect of the first he is not answerable to any Court of law. No Court can compel him to show cause or defend his action. In the case of official acts an absolute immunity from the process of Court is given and this immunity extends not only to his official acts but also to acts purporting to be done by him in exercise of the powers conferred on him, so long as he is not guilty of dishonesty or bad faith. In the case of official acts an absolute immunity from the process of Court is given and this immunity extends not only to his official acts but also to acts purporting to be done by him in exercise of the powers conferred on him, so long as he is not guilty of dishonesty or bad faith. But this will not preclude the acts of the Governor from being questioned if they can be done without issuing a process on him. Indeed Article 361 itself recognizes that this immunity would not restrict the right of any person to bring appropriate proceedings against the Government.” The Governor was not a party to the litigation in that case nor was his bona fides in question. Dr. C. V. Pantulu v. Govt. of Andhra. AIR 1958 Andh Pra 240 again pointed out that though an order of the Governor made on appeal filed by the petitioner in that case ignoring the constitutional safeguard was bad, still the Governor was not answerable to the Court in view of Art. 361. The Patna High Court also took a similar view in Binkim Chandra v. State of Bihar, AIR 1956 Pat 384 . There, Das, C. J. and Imam, J. held that the Governor when he dismissed the petitioner he was doing so in his official capacity in the exercise and performance of the powers and duties of his office, and therefore, it was not open to the High Court to issue a writ under Art.226 of the Constitution of India so are as the Governor of a State was concerned. But actually, neither in the Patna nor in the Andhra Pradesh case, the Governor was eo nominee a party. In AIR 1969 SC 903 the Supreme Court observed- “Article 174(2)(a) which enables Governor to prorogue the legislature does not indicate any restrictions on this power. Whether a Governor will be justified to do this when the legislature is in session and in the midst of its legislative work, is a question that does not fall for consideration here. When that happens the motives of the Governor may conceivably be questioned on the ground of an alleged want of good faith and abuse of constitutional powers. We do not go as far as the learned Judge in In re Kalyanam Veerabadrayya. But that is not the case here........ When that happens the motives of the Governor may conceivably be questioned on the ground of an alleged want of good faith and abuse of constitutional powers. We do not go as far as the learned Judge in In re Kalyanam Veerabadrayya. But that is not the case here........ No mala fides were attributed to the Governor except of his powers or in colourable exercise of them. The power being untrammeled by the Constitution and an emergency having arisen, the action was perfectly understandable.” Neither the Supreme Court in this case, nor in the other cases we referred to of the High Courts, was it held that the personal immunity afforded by Art. 361(1) to the Governor did not avail where his bona fides were questioned. They have not held that where his bona fides are questioned, he can personally be called to enter his defense. In our opinion, his personal immunity extends to such a case as well. Though the Governor cannot be personally, as a party or otherwise called upon to answer a charge of bad faith or lack of bona fides with reference to his official act, the validity of his act is open to attack on that ground in a Court. In fact the second proviso to Art. 361(1) is indicative of it. 22. In such view of the matter, a writ of quo warranto against the fifth respondent, the Lieutenant-Governor of Puducherry is not maintainable. Therefore, this writ petition is held to be not maintainable and accordingly dismissed. 23. In view of the above finding and dismissal of the writ petition on the ground of maintainability, the question regarding under what circumstances a writ of quo warranto shall issue need not be gone into. 24. It is needless to state that the dismissal of the writ petition does not bar the right of any person to bring appropriate proceedings before the appropriate forum against the Government of India or the Government of Puducherry or the other instrumentalities functioning under the Central Government or the Government of the Union Territory. As noticed above, the petitioner is stated to have submitted representation to the first respondent and the dismissal of this writ petition would not bar the petitioner from pursuing such representation. As noticed above, the petitioner is stated to have submitted representation to the first respondent and the dismissal of this writ petition would not bar the petitioner from pursuing such representation. It is needless to state that if such representation is pending before the first respondent, then the same shall be considered and a decision may be taken by the first respondent on merits and in accordance with law. No costs.