ALLAN S F FALERIO Vs. STATE OF GOA

JUDGEMENT

(1.) This Writ Petition has been filed, seeking a writ of Quo Warranto against Respondent No.2, the Captain of Ports, who has been appointed by Respondent No.1, Government of Goa, upon the recommendations of the Goa Public Commission w.e.f. 21-11-1991, and, with a prayer which reads as follows:-

(2.) Before we proceed to deal with the petition, it is necessary to deal with two preliminary objections taken on behalf of Respondent No.2. The first is regarding delay, the petition having been filed only on 21-6-2009 after a gap of almost 18 years, and, the second is that the petition has been filed with oblique motives. The first objection has not been supported by the learned Advocate General appearing on behalf of Respondent No.1, and we are not inclined to entertain the same.

(3.) Shri Rohit Bras De Sa, learned Counsel on behalf of the Petitioner has placed reliance on several decisions on this aspect. It has been stated by the High Court of Allahabad in Baj Nath Singh v. The State of U.P. through the Secretary and others(AIR 1965 Allahabad 151) that a petition for Quo Warranto cannot be dismissed for delay, for the cause of action arises, 'De die in diem' and this observation was made by that High Court based on a decision of this Court in the case of S. S. Shewale v. Jalgaon Borough Municipality(ILR(1958) Bom 113) wherein it was observed that if the appointment of an officer is illegal, everyday that he acts in that office a fresh cause of action arises, and, therefore there can be no question of delay in presenting a petition for a writ of Quo Warranto in which his very right to act in such a responsible post has been questioned. The Apex Court too in the case of Dr. Kashinath G. Jhalmi and another v. The Speaker and others(1993) 2 SCC 703) has held that the exercise of discretion by the Court even where the application is delayed, is to be governed by the objective of promoting public interest and good administration; and, on that basis it cannot be said that discretion would not be exercised in favour of interference where it is necessary to prevent continuance of usurpation of public office or perpetuation of an illegality. Shri Rivonkar, the learned Counsel on behalf of Respondent No.2 has placed reliance on Dr. M. S. Mudhol v. S. D. Halegar(1993(3) SCC 591) but in our view, that decision is no help to the case of Respondent No.2 as the said case stood on its own facts. There, the petition was filed after nine years, and if at all, the Hon'ble Supreme Court did not interfere, it was because the Supreme Court felt that a principal in a private school, though aided, was not of such importance, for the Court to be impelled to interfere with the appointment, assuming a writ of Quo Warranto was available. Shri Rivonkar, has also submitted that the Petitioner was working in the Department as marine engineer between 14-2-1996 and 11-1-1997, and therefore ought to have known whether Respondent No.2 was sufficiently qualified. We are not inclined to accept this submission either, because at that time the Petitioner had no interest in the matter of qualification of Respondent No.2, interest, which he acquired only after, permission sought by him could not get through. We are therefore not inclined to dismiss the petition on the ground of delay.