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TMI Blog1950 (11) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... e Advocate-General for the State. According to the applicant, the non-applicant who retired as a Judge on attaining the age of 60 years could not be appointed as the Advocate-General or act as such. The non-applicant is thus guilty of intrusion into the office the Advocate-General and non-applicant No. 2 as guilty of usurpation of powers under Art. 165(1), and hence both are liable for their respective actions. (3) At first the applicant desired issue of notice to non-applicants 1 and 3 only. The question of issuing notice to non-applicant No. 2 was deferred at the applicant's own instance for consideration at the hearing. At the hearing the applicant desired issue of notice to His Excellency the Governor as well. In view of Art. 361(1) of the Constitution, the Governor is not 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. The learned counsel for the applicant, however, contended that as the action impugned in the present case, namely, the appointment of the non-applicant as the Advocate-General, is in contravention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... towards him within the meaning of the expression for any other purpose under Art. 226(1) of the Constitution. (5) We will consider the grounds of objection seriatim. (6) It is true that the office of the Advocate-General is a very high office held by virtue of an appointment made under the Constitution. But that does not and cannot mean that the validity of such an appointment is placed beyond challenge. Whenever the Constitution desires the exclusion of certain matters from the jurisdiction of the Courts, it has taken care to say so in express terms as for example in Arts. 122, 212, 262 and 329(a). But there is no provision in the Constitution prohibiting this Court from enquiring into the legality of the appointment of the Advocate-General. We decline to imply any such prohibition. In the absence of any prohibition express or implied, the Court is bound to consider the question of the legality of any appointment purporting to be made under the law if such a question is properly raised before it. The Court cannot refuse to inquire into the legality of an appointment merely because the appointment in question is to a very high office. In the year 1894 the Allahabad High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there has been a tendency to extend the remedy, subject to the discretion of the Court to grant or refuse informations to private prosecutors according to the facts and circumstances of the case, and hence it is that it becomes so difficult to reconcile many of the decisions, as was pointed out by Lord Brougham in, 'DARLEY v. THE QUEEN', (1846) 12 Cl F 520: 8 E R 1513. It is necessary to add that since the decision in 'REX v. SPEYER', (1916) 1 K B 595 ('supra') the remedy against usurpation of office has been further simplified in England. Under S. 9 of the Administration of Justice (Miscellaneous Provisions) Act, 1938 (1-2 Geo. VI, Ch. 63) informations in the nature of 'quo warranto' have been abolished. The High Court now grants an injunction restraining any person from acting in an office in which he is not entitled to act. (8) In 'DARLEY v. THE QUEEN', (1846) 12 Cl F 520 at p. 537: 8 ER 1513, the Judges were summoned to the House of Lords to give their opinion. The House of Lords accepted the opinion given by Tindall C. J. The conclusion of Tindall C. J. is expressed in the following words: After the consideration of all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovincial Government under the Calcutta Municipal Act (sea pp. 250 and 259), invalid in the absence of both, the Government and the Corporation. (11) The third ground proceeds on a misconception of the nature of the order that is made in proceedings for a writ of 'quo warranto'. Whatever order the Court makes would be an order binding on the incumbent of the office in question. The judgment of the Court would be a judgment of ouster affecting the person holding the office. If the non-applicant disobeys any order made by this Court, this Court is not powerless to enforce it against him. The duty enjoined on us by the Constitution is to uphold the Constitution and the laws (see Art. 219 and form of oath or affirmation VIII in the Third Schedule). It is the function and duty of the Court to interpret the Constitution and declare the law. The argument of the learned Advocate-General that His Excellency the Governor might ignore the declaration of law by a competent judicial authority is in our opinion much too conjectural in view of the oath or affirmation which is imposed upon the Governor by the Constitution to preserve, protect and defend the Constitution and the law . ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court reported in 'BAGARAM v. STATE OF BIHAR' AIR 1950 Pat 387 (FB), in support of the interpretation that the words for any other purpose mean only the enforcement of any legal right and the performance of any legal duty. According to their Lordships the words must be read 'ejusdem generis' which is the ordinary principle of construction. In our view, we state it with due respect to their Lordships, the enforcement of legal right and the performance of legal duty cannot be exhaustive of the purposes for which the Court may issue any order direction or writ under Art. 226. (15) Nothing can well be plainer , observed Lord Esher M. R., than that to shew that prima facie general words are to be taken in their larger sense, unless you can find that in the particular case the true construction of the instrument requires you to conclude that they are intended to be used in a sense limited to things 'ejusdem generis' with those which have been specially mentioned before. :see 'ANDERSON v. ANDERSON' (1895) 1 QB 749 at p. 753. Even the principle of 'ejusdem generis' is only a rule of construction which is not of universal application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedy remedies under Art. 226. But that consideration can have no bearing on the scope of the power which is conferred upon the Court. (18) The words for any other purpose must receive their plain and natural meaning, namely, for any other object which the Court considers appropriate and calls for the exercise of the powers conferred upon it. Though the power of this Court under Art, 226 is ordinarily exercisable for enforcement of right or performance of duty, it cannot necessarily be limited to only such cases. Such a limitation cannot be reconciled with the power to issue a writ in the nature of 'quo warranto' which power has been expressly conferred on the Court. In proceedings for a writ of 'quo warranto' the applicant does not seek to enforce any right of his as such, nor does he complain of any non-performance of duty towards him. What is in question is the right of the non-applicant to hold the office and an order that is passed is an order ousting him from that office. Shri Karkare is only invoking what in the words of Lush J. in 'REX v. SPEYER', (1916) 1 KB 595 ('supra') is the process by which persons who claim to exercise public fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure, and Ss. 141-A and 237 of the Indian Companies Act. As Lush J. observed in 'REX v. SPEYER', (1916) 1 KB 595 at p. 628 ('supra') every subject has an interest in securing that public duties shall be exercised only by those competent to exercise them. So from every point of view it is a matter of grave public concern that the legality of the appointment to a high office under the Constitution is not left in doubt. (22) The preliminary objection fails. We hold the application is maintainable. (23) So we turn to the principal question in the case whether the appointment of the non-applicant is vitiated because he was past sixty years on the date of the appointment or because he retired as a Judge of the High Court. (24) According to the contention of the learned counsel for the applicant, the first clause of Art 217 has to be read with the first clause of Art. 165 and so reading the person is not qualified to be appointed Advocate-General after he attains the age of sixty years. This contention requires a close examination of Arts. 165 and 217, the relevant portions of which are reproduced below: Article 165(1) The Governor of each State shall ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Advocate-General in the third clause of Art. 165 which says that the Advocate-General shall hold office during the pleasure of the Governor. As this provision does not limit the duration of the appointment by reference to any particular age, as in the case of a Judge, it is not permissible to import into it the words until he attains the age of sixty years . The specific provision in the Constitution must therefore be given effect to without any limitation. If a person is appointed Advocate-General, say at the age of fifty-five, there is no warrant for holding that he must cease to hold his office on his attaining sixty years because it is so stated about a Judge of a High Court in the first clause of Art. 217. If that be the true position, as we hold it is, then the appointment is not bad because the person is past sixty years, so long as he has the qualifications prescribed in the second clause of Art. 217. It was not suggested that the non-applicant does not possess the qualifications prescribed in that clause. (28) The provision that every Judge of a High Court shall hold office until he attains the age of sixty years has two aspects to it. While in one aspect it c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant, we cannot forget that provisions entailing disabilities have to be construed strictly: 'PARAMESHWARAM PILLAI BHASKARA PILLAI v. STATE', 1950-5 Dom L R (Trav) 382. The canon of construction approved by their Lordships of the Privy Council is that if there be any ambiguity as to the meaning of a disabling provision, the construction which is in favour of the freedom of the individual should be given effect to: 'DAVID v. DE'SILVA', (1934) A C 106 at p. 114. (31) There is no force in the contention that the non-applicant could not have been appointed Advocate-General because he had retired as a Judge of the High Court. The learned counsel referred us to Clause (4) (a) of Article 22 of the Constitution and submitted that the Constitution makes a distinction between a person who has been a Judge and one who is qualified to be appointed as a Judge of a High Court. The provision in our view only makes an exhaustive enumeration of the classes of persons who can constitute an Advisory Board. Such persons must either be or must have been or must be qualified to be appointed as Judges of a High Court. The provision has therefore no bearing on the question whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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