IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30..08..2011 CORAM THE HON’BLE Mr.M.Y.EQBAL, CHIEF JUSTICE and THE HON’BLE Mr.JUSTICE T.S.SIVAGNANAM W.P.Nos.20082 and 20083 of 2011 and M.P.Nos.1+1 & 2+2 of 2011 ------------ K.A.Musthafa, S/o.K.Ali Mohammed, No.95, Short Line, Bombay Castle, Udhagamandalam, The Nilgiris – 643 001. ..Petitioner in both the W.Ps. / Vs. / 1. The Chief Minister, Government of Tamil Nadu, Fort St.George, Chennai – 600 009. 2. Mr.Budhi Chandran, Minister for Goods and Civil Supplies, Fort St.George, Chennai – 600 009. 3. The District Collector, O/o. the Collectorate, Udhagamandalam, The Nilgiris. 4. The Managing Director, The Nilgiris District Co-operative Milk Producers Union, (Aavin), Coonoor Road, Udhagamandalam, The Nilgiris. 5. The Director, Central Bureau of Investigation, Plot No.5-B, CGO Complex, Lodhi Road, New Delhi – 110 003. ..Respondents in both the W.Ps. https://hcservices.ecourts.gov.in/hcservices/ PRAYER:- W.P.No.20082 of 2011: Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Mandamus to direct the 1st respondent to remove the 2nd respondent from the Council of Ministers of the Government of Tamil Nadu inasmuch as he has failed to discharge his duties as per his oath of office taken under Form – V of Schedule III of the Constitution of India. W.P.No.20083 of 2011: Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Quo Warranto calling the 2nd respondent to show cause under what authority he is continuing to discharge his duties, continue to hold the office of the Minister in the Council of Ministers of State of Tamil Nadu inasmuch as he has violated the oath of office as enshrined in Form – V of Schedule – III of the Constitution of India. For Petitioner :: Mr.N.Jothi, For Mr.V.Manoharan. For Respondents 1 to 3 :: Mr.A.Navaneetha Krishnan, Advocate General. O R D E R The Hon’ble The Chief Justice & T.S.Sivagnanam, J. ---------------------------------------- Both the writ petitions have been filed by the same writ petitioner, one viz., W.P.No.20082 of 2011 seeking a writ of mandamus to direct the 1st respondent – Chief Minister to remove the 2nd respondent – Minister from her Council of Ministers for his alleged failure in discharging his duties as per his oath of office taken under Form – V of Schedule III of the Constitution of India, and the other viz., W.P.No.20083 of 2011 is filed seeking a writ of quo warranto against the 2nd respondent – Minister to show cause under what authority he is continuing to discharge his duties as a Minister in the Council of Ministers inasmuch as he has violated the oath of office. 2. It is alleged that the petitioner is a Councillor of Udhagamandalam Municipality, elected from Ward No.11, and earlier he was elected from Ward No.13. The 2nd respondent was elected as a Member of Legislative Assembly from the Udhagamandalam Legislative Constituency during the General Election held in 2011. During the https://hcservices.ecourts.gov.in/hcservices/ formation of the Ministry, the 2nd respondent was initially allocated the portfolio of Tourism Department, and thereafter, he had been allocated the portfolio of Food and Civil Supplies Department. It is alleged that the 2nd respondent violating his oath of office sent a letter/order dated 23.06.2011, in his official letter-head, to the General Manager, the Nilgiris District Milk Producers Co-operative Union, Coonoor, the 3rd respondent herein, removing the three existing agents and nominating three other persons of his choice in their places. It is alleged that by this act the public largesse was arbitrarily given by showing favouritism, and it must have been given calling for a bid/tender. No reason was cited for the removal of the existing agents. It is further alleged that the letter does not indicate any method to secure the best market price profitable to the 3rd respondent so as to augment to the State Exchequer. Further, the petitioner questioned the locus standi of the 2nd respondent in interfering in these matters that too beyond the scope of his ministry. It is further alleged that originally the 2nd respondent was a contractor listed in Kil Kundha Town Panchayat, and his name was blacklisted for his substandard work, but after becoming Minister he insisted on the withheld payment from being paid to the extent of 3 lakhs, and thereby enriched himself unduly, using his official position. It is further alleged that the 2nd respondent is insisting on the authorities concerned that without his permission no cutting order for cutting the dry, wind fallen and aged trees, including the Silver Oak Trees should be issued. It is finally stated that the above incidents would clearly show that the 2nd respondent has miserably failed to discharge his official duties as per his oath of office taken under Form – V of Schedule III of the Constitution of India, and therefore, he is liable to be removed from the Council of Ministers. 3. We have heard Mr.N.Jothi, learned counsel for the petitioner and Mr.A.Navaneetha Krishnan, learned Advocate General for the respondents, and perused the material on record. 4. Mr.N.Jothi, learned counsel for the petitioner mainly contended that the 2nd respondent in the discharge of his duties has violated the oath of office taken by him under Form – V of Schedule III of the Constitution of India, and he is no more entitled to continue to hold the office of a Minister. Learned counsel heavily relied on the decision of a Division Bench of this High Court in the case of Anbazhagan, K. Vs. The Secretary, Tamil Nadu Legislative Assembly and others reported in 1987 Writ L.R. 568. Learned counsel drawn our attention to paragraph – 32 of the said decision and submitted that an elected representative of the people is duty bound to bear true faith and allegiance to the Constitution of India and uphold the sovereignty and integrity of India. There is no dispute that an elected representative of the Legislative Assembly or Legislative Council shall have to hear true faith and allegiance to the Constitution of India as by law established and he will have to https://hcservices.ecourts.gov.in/hcservices/ uphold the sovereignty and integrity of India, and shall faithfully discharge his duties as the Member of the Legislative Assembly, but in the event of failure in the discharge of his duties, this Court cannot issue a writ of mandamus directing removal of the elected representative when the machinery for that purpose is clearly provided under the Constitution of India. In the decision referred to above by the learned counsel for the petitioner, the fact was that the Tamil Nadu Legislative Assembly passed a resolution declaring that the petitioners in that case were unfit to continue as Members of the House and that they were expelled from the membership of the House. It was further resolved that their seats became vacant. The resolution was passed by the Assembly on a motion moved by the Leader of the House. Consequent upon the passing of the resolution a notification was also came to be published that the said 10 members had ceased to be members of the assembly. In that circumstances, the petitioners of that case, who were the members of the Assembly expelled from the House filed writ petitions for a declaration that the resolution expelling them from the House and declaring their seats in the Assembly as vacant as unconstitutional and null and void. The Court held that the impugned resolution does not have the effect of expulsion of a member on the ground that he has incurred a disqualification for having committed a breach of oath, but it is founded on the conduct of the elected members, which the Assembly considered to be derogatory to the dignity of the Constitution as well as the dignity of the Assembly and they were considered unfit to be members of the Assembly. 5. At the very outset we are of the opinion that the reliefs sought for by the petitioner in these writ petitions are misconceived and can not be maintained. The nature of the relief sought for does not fall within the jurisdiction of this Court. 6. From a combined reading of the Articles 163 and 164 of the Constitution of India it is manifestly clear that the Ministers of a Legislative Assembly are appointed by the Governor albeit on the advice of the Chief Minister and they hold their office during the pleasure of the Governor. A complete machinery has been provided in the Constitution for the removal or disqualification of a Minister. The pleasure of dismissing/removing a Minister has to be that of the Governor and not that of this Court. This Court, therefore, cannot issue a writ of mandamus or quo warranto for the removal of a Minister on the basis of some allegations of exercising power illegally or arbitrarily, to favour a particular person, in the matter of grant of licence or allotment of any work related to public. 7. Apart from that the main contention of the writ petitioner is that the 2nd respondent on his official letter-head directed for the appointment of some persons and distributed State largesses by removing the existing agents. But, no material has been brought on https://hcservices.ecourts.gov.in/hcservices/ record to show that on the basis of the said letter of the 2nd respondent the persons named therein have been appointed as agents by removing the existing agents. If that is done, then the aggrieved person could have challenged the decision of the 2nd respondent as illegal and arbitrary. So far as the other allegations are concerned, we are of the definite opinion that on the basis of those allegations no writ of mandamus or quo warranto can be issued by this Court. 8. For the reasons aforesaid, we find no merit in these writ petitions. Accordingly, these writ petitions are dismissed. Consequently, connected miscellaneous petitions are also dismissed. However, there will be no order as to costs. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar. sm Copy to:- 1. The Hon’ble Chief Minister, Government of Tamil Nadu, Fort St.George, Chennai – 600 009. 2. Mr.Budhi Chandran, Minister for Goods and Civil Supplies, Fort St.George, Chennai – 600 009. 3. The District Collector, O/o. the Collectorate, Udhagamandalam, The Nilgiris. 4. The Managing Director, The Nilgiris District Co-operative Milk Producers Union, (Aavin), Coonoor Road, Udhagamandalam, The Nilgiris. https://hcservices.ecourts.gov.in/hcservices/ 5. The Director, Central Bureau of Investigation, Plot No.5-B, CGO Complex, Lodhi Road, New Delhi – 110 003. 1 cc To Mr. G.Munirathnam, Advocate Sr 54175 2 cc To Mr.V.Manoharan, Advocate Sr 54282 W.Ps.20082 & 20083 of 2011 ug[co] gp/15.9. https://hcservices.ecourts.gov.in/hcservices/