HARISHCHANDRA L PATEL Vs. MADHAVSINH SOLANKI

JUDGEMENT

(1.) Appointment of respondent No. 1 as Chief Minister of the State of Gujarat is not constitutionally valid contends the petitioner in this petition filed by way of public interest litigation. After declaration of the results of the general election to the Lok Sabha the Chief Minister of the State of Gujarat submitted his resignation. Respondent No. 1 has been appointed as Chief Minister of the State of Gujarat and he has assumed office of Chief Minister with effect from 10/12/1989 The petitioner who is a practising advocate in this High Court has challenged the legality and validity of the appointment of respondent No. 1 as Chief Minister of the State of Gujarat by filing this petition by way of public interest litigation. in his submission respondent No. 1 is not a member of the Legislative Assembly of the State and therefore he cannot-be appointed as Chief Minister. Petitioner contends that his interest is to see that there is lawfully constituted Government in the State of Gujarat. Therefore he prays for a writ of quo warranto to be issued against respondent No. 1 Shri Madhavsinh Solanki Chief Minister of the State of Gujarat. Though several factual and legal averments have been made in the petition and several aspects have been dealt with in the memo of petition the petitioner at the time of hearing of the petition has confined his arguments to the following points only:

(2.) Mr. Y. N. Oza learned Advocate sought permission of the Court to appear as intervenor on behalf of Shri Ashok C. Bhatt member of the Legislative Assembly and Whip of the Bharatiya Janata Party in the Gujarat State Legislative Assembly. He has been granted permission to appear on behalf of Shri Ashok C. Bhatt as intervenor. Mr. Oza while supporting the petitioner on the aforesaid points has emphasized and reiterated that there is no possibility of by-election being held to the Legislative Assembly within a period of six months. Therefore appointment of respondent No. 1 as Chief Minister should be invalidated.

(3.) The petitioner in substance prays that a writ of quo warranto be issued against respondent No. 1 who is holding the office of Chief Minister of the State of Gujarat. For maintainability of the petition for writ of quo warranto it is required to be seen that the respondent is holding a public post; the post held by respondent should be substantive in character and it should have been created either by statue or under the provisions of the Constitution. The respondent must be asserting his claim to the office. After these conditions are fulfilled it is required to be examined as to whether the respondent is legally qualified to hold the office or to remain in the office. In the instant case there is no dispute as regards the nature of office its substantive character and the creation thereof under the Constitution. Therefore the short question required to be determined is in the appointment of respondent No. 1 as Chief Minister of the State of Gujarat constitutionally valid ? Or has he incurred any disqualification so as to forfeit his claim to hold the office ?