“Writ Of Certiorari And Quo Warranto Can Peacefully Coexist”: Calcutta High Court Allows Amendment For Addition Of Prayer In Writ Petition

The Calcutta High Court recently allowed a plea seeking to insert prayer for writ of Quo Warranto in a Writ petition filed seeking a writ of Certiorari for quashing a Notification issued by the Minority Affairs and Madrasah Education Department of the State.

A single-judge bench of Justice Moushumi Bhattacharya held that it would be within the powers of a Writ Court under Article 226 of the Constitution to allow for the amendment of prayers in a writ petition, and that a writ of certiorari and one of quo warranto are not mutually destructive. “Certiorari and Quo Warranto may be independent, space-hugging bedfellows but are not warring or destructive of each other,” it remarked.

Brief background of the dispute:

The petitioners were practitioners of the Shia sect of Islam. They’d claimed to be interested persons in the nomination of the private respondent as a member of the Board of Waqf (“the Board”) vide impugned notification.

In the original Writ petition, the petitioners had objected to the private respondent’s nomination as a member of the Waqf Board on the grounds that under Section 14(1)(d) of the Act, dealing with composition of the Board, the member to be appointed by the State Government to the Board must be, “from among the recognised scholars in Shia and Sunni Islamic Theology.” Contending that the private respondent did not meet this criterion, the petitioners sought for a Writ of Certiorari quashing the order and notification which declared said nomination.

The respondents had objected to the maintainability of the petition on the ground that the petitioners did not have any locus standi to challenge the order and notification, and hence the petitioners filed for amending the prayers to include the writ of Quo Warranto as counter to the objection on maintainability.

According to the petitioner, the amendment seeking to add a Writ of quo warranto was maintainable since Article 226(1) allows a High Court “to issue writs for the enforcement of any of the rights conferred by Part III and "for any other purpose."

On the other hand, the nominated member/private respondent contended that a Writ of Certiorari as claimed in the original Writ petition could not co-exist with a Writ of Quo Warranto since both were mutually destructive and differ in their scope.

Observations of the Court

The Court was called upon to decide a) whether the reliefs as claimed by the petitioner in the form of a Writ of Quo Warranto in addition to a Writ of Certiorari can coexist, and b) whether the High Court could allow such an amendment within its jurisdiction under Article 226 of the Constitution.

1. Writ of Certiorari and Quo Warranto can co-exist

According to Justice Bhattacharya, “the Writs of Certiorari and Quo Warranto operate in independent fields. While Certiorari is for demolishing an order passed by an inferior (in the sense of hierarchy) Court or Tribunal for want of or in excess jurisdiction, a Quo Warranto authorises a citizen to question the legality of an appointment to a public office. The very nature of the right in Quo Warranto proceeding calls for relaxation of the locus of the relater.”

In dealing with the objection of the respondents that the Petitioners did not have any locus to move the Court for insertion of a prayer of Quo Warranto in their original petition, the Court noted that the question on maintainability on the ground of locus is “precisely the reason why the petitioners sought to include the prayer for Quo Warranto in the amendment. To repeat, the Writ of Quo Warranto was brought in to neutralise the locus argument of the respondents.”

In order to put the argument of locus standi to rest, the Court relied on the Supreme Court decision in the case of Ayaaubkhan Noorkhan Pathan v. State of Maharashtra; (2013) 4 SCC 465 which held:

“Thus, from the above it is evident that under ordinary circumstances, a third person, having no concern with the case at hand, cannot claim to have any locus standi to raise any grievance whatsoever. However, in exceptional circumstances as referred to above, if the actual persons aggrieved, because of ignorance, illiteracy, inarticulation or poverty, are unable to approach the court, and a person, who has no personal agenda or object, in relation to which, he can grind his own axe, approaches the court, then the court may examine the issue and in exceptional circumstances, even if his bona fides are doubted, but the issue raised by him, in the opinion of the court, requires consideration, the court may proceed suo moto, in such respect.”

In conclusively dealing with this issue, the Court noted that the amendment sought in this case was merely technical and did not alter the character of the original petition. It held:

“The case law on the subject of the writs of Certiorari and Quo Warranto and the cause of action pleaded in the writ petition as filed persuade this Court to hold that the petitioner have made out a case for amendment. The amendment, if allowed, would neither change the nature and character of the writ petition nor introduce a discordant note in the form of the writ of Quo Warranto. The amendment is thus only formal in nature where the petitioners have sought to mend the constitutional loopholes even though this Court is of the view that the fabric of the original writ petition was resilient enough to hold the prayers of both Certiorari and Quo Warranto in its weave.”

Thus, it concluded that although both the Writ of Certiorari and Quo Warranto question the illegal acts of the State, they operate in independent domains and at different stages making them non-conflicting with each other.

2. Powers of the High Court under Article 226 are vast

Finally, in dealing with the question on whether a High Court can consider such a petition within its powers under Article 226 of the Constitution, the Court held that such a Constitutional provision provides High Courts with a wide variety of reliefs that can be provided to petitioners who have suffered or are suffering from illegal acts, and thus the language of such a provision is necessarily wide. The Court opined:

“The generously-crafted language of Article 226(1) amplifies and unshackles the power to cover not only the five writs “in the nature of...” but also other directions or orders. Besides the mechanism of implementing the power, the purpose is also unrestricted in the sense that it includes issuance of directions “... for any other purpose” besides enforcement of any of the rights conferred by Part - III of the Constitution. The widening of the coverage of the power to issue writs thus happens at two levels; the tools of implementation so to speak, namely, not only the five writs but also orders, directions or writs in the nature of the five writs and further for a limitless objective – “and for any other purpose” - for which the tools can be used. The words “in the nature of” clearly indicate that Article 226 was not framed to admit any technical argument of which a writ should be issued or for what purpose; or in other words, unnecessary clamouring on the nomenclature of the writs or making infringement of the fundamental rights as sacrosanct for issuance of the writs. The message is clear; Article 226 is not meant to be hemmed-in by sidewinds of technicalities but should be directed to serve the object for which the provision was enacted - which is to reach injustice wherever it is found.”

Accordingly, the Court allowed the petitioners to amend the original Writ petition to include their prayer for a Writ of Quo Warranto seeking the removal of the private respondent as a member of the Board, within it.

Coram: Justice Moushumi Bhattacharya

Case: Professor Syed Haider Hassan Kazimi & Ors. vs State of West Bengal & Anr.

Citation: 2023 LiveLaw (Cal) 168

Click Here To Read/Download Order